The terror case against a Wollongong man who fired a hail of bullets into the air and took two hostages has imploded after a judge struck out a key piece of evidence.
Simon Fleming, 41, has for the past four weeks faced trial in the NSW Supreme Court but was on Tuesday acquitted of committing a terrorist act.
His defence team of lawyer Aaron Kernaghan and barrister Leah Rowan has persistently maintained that Mr Fleming was seriously mentally ill when he armed himself with a rifle, a replica gun and a fake bomb in the main street of Windang in November 2021.
Justice Helen Wilson on Tuesday directed the jury to deliver an acquittal on the serious charge after days of legal argument between Mr Fleming’s legal team and the Crown prosecution.
She ruled that evidence from one expert witness was inadmissable, leading the Crown prosecution to concede there was insufficient evidence to support the charge.
A short time later the jury foreman delivered a not-guilty verdict on the lone terrorism charge.
The jury was then discharged and the remaining 11 charges - including firing a firearm in a manner likely to injure, take/detain a person to gain advantage, unauthorised possession of a weapon and possessing a prohibited firearm - will be dealt with on mental health grounds.
It means that the acts have been proven but Mr Fleming has been ruled not criminally responsible for mental health reasons.
The prosecution had previously alleged that Mr Fleming was motivated by right-wing ideology after police discovered a manifesto – titled The Fuse – on a USB after he was arrested following an armed stand-off with police.
There was little dispute about the events but Mr Fleming’s legal team maintained he was impaired by mental illness at the time and that affected his understanding of the events.
The court was told that Mr Fleming had been diagnosed with schizophrenia by two doctors.
“There is no dispute that Mr Fleming was seriously psychiatrically ill on that day,” Justice Wilson told the jury.
Justice Wilson ordered that Mr Fleming be taken to a mental health facility at Long Bay jail.
The court was told that on the morning of November 28, 2021, Mr Fleming left his home at Windang, in Wollongong’s south, dressed in black, carrying two guns – a rifle and a gel blaster – as well as a fake bomb.
The court was told that he fired several bullets into the air – one that pierced a Colorbond roof 2.8km away – as well as into a passing vehicle.
He also took two people hostage in a dive shop before letting both men go and surrendering to police following an hour-long stand-off.
No one was harmed in the incident.
The court was told that Mr Fleming had previously been referred to a psychiatrist and prescribed antipsychotic medication.
In a police interview, he told officers that two days prior he had taken his remaining pills and by that morning had been going through opioid withdrawals.
He told officers he could only remember “flashes” between leaving home at 9am and his arrest about 90 minutes later.
When asked by police about the manifesto, he described it as a “f***ing stupid rant”
He denied wanting to hurt anyone or that he told his two hostages “I’m a terrorist”.
“I didn’t say ‘I’m a terrorist’,” he said in his police interview that was played to the jury earlier this month.
“Because I think they’re more organised than I am. I’m just some d**khead who’s grabbed a gun.”
He said he had planned the event for several years and had meant to lay out a sign saying “Australia for a Republic” on the road to next to the fake bomb
However when he walked out his door he forgot the sign, he told police.
He also told officers that he was “told by God” to lead the charge for Australia to become a republic since he saw a face in the clouds on New Year’s Eve in 2018.
Outside court on Tuesday, Mr Kernaghan said he would ask for Mr Fleming to be awarded costs for his defence.
“There has been no surprise that Mr Fleming is someone who has suffered from a mental health impairment, the only change has been to convince the Crown prosecution and that took some doing,” Mr Kernaghan said.
He was critical of the decision by prosecutors to pursue the terror charge, saying Mr Fleming had been living in the community for a long time with a serious mental health problem.
“It’s a serious thing to accuse someone of terrorism,” Mr Kernaghan said.
“It’s one of the top charges you can be accused of.
“And I’d like to think, in this country, that if a prosecution is going to mount a case like that against a citizen, they have absolutely iron-clad evidence and not the opinion of an expert, who cites as a footnote a podcast from the New York Times as part of her resources.
“That’s not enough.”
The matter will return to court next week.