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Supreme Court 14 March 2003

R v Adams

[2003] NSWSC 142

Also reported as 58 NSWLR 1
Assault & violenceHomicide
CRIMINAL LAW

Citation: R v Adams [2003] NSWSC 142
Court: Supreme Court of New South Wales (Common Law Division, Criminal)
Date: 14 March 2003
Judge(s): Sperling J

Background

The offender was found unfit to stand trial under the Mental Health (Criminal Procedure) Act 1990. Following a special hearing, Sperling J found that, on the limited evidence available, she had committed malicious wounding with intent to cause grievous bodily harm and manslaughter. The offences occurred in 1999, when the offender was 16 and then 17 years of age: she stabbed her mother causing serious injury, and later fatally stabbed a teacher during a school cooking class while held at a juvenile justice centre.

In November 2001, the court fixed a cumulative limiting term of six years and referred the offender to the Mental Health Review Tribunal, ordering she be held in strict custody. The offender had been detained at Mulawa Correctional Centre throughout, where expert psychiatric evidence consistently identified conditions as unsuitable for someone with her severe mental health needs.

The present judgment arose after the Tribunal made its determination under s 24(3) of the Act and notified the court, triggering the court's discretion under s 27 to order where the offender was to be detained: in a hospital or in some other place.

  • Whether an order should be made under s 27 of the Mental Health (Criminal Procedure) Act 1990 following the Tribunal's notification, and if so, on what terms.
  • Whether the offender should be detained in a hospital or in some other place, given her psychiatric profile, the nature of her conditions at Mulawa, and the absence of a secure psychiatric facility for women in New South Wales.
  • Whether there was a potential lacuna in the legislation leaving the offender's status as a "forensic patient" uncertain in the period between the fixing of a limiting term and the making of a s 27 order.

Decision

Sperling J exercised the court's discretion under s 27 and made a detention order. The court had previously observed, in its November 2001 remarks, that the conditions at Mulawa were unsuitable and inhumane for someone with the offender's profound psychiatric needs, and that a secure psychiatric hospital setting would be preferable. Despite that observation, no suitable secure psychiatric facility for women existed in New South Wales.

The court proceeded against the backdrop of consistent expert evidence that the offender posed a serious risk to herself and others and required secure confinement with close supervision. Three psychiatrists were unanimous on this point at the earlier hearing. The treating psychiatrist, who had seen the offender regularly since shortly after the homicide, had expressed a preference for a hospital-based secure setting, which remained unavailable.

Ultimately, the court ordered detention in a place other than a hospital in New South Wales, reflecting the practical reality that no appropriate hospital facility existed for the offender. The judgment also noted the Tribunal's tentative view that there may be a legislative lacuna in the scheme: a person in the offender's position, detained under s 24(1)(b) after a limiting term was set, may not technically be a "forensic patient" for the purposes of the Mental Health Act 1990 until a s 27 order is made. The Tribunal had raised but not resolved this point, and Sperling J's judgment records it without finally determining it.

Orders Made

  • Order, pursuant to s 27 of the Mental Health (Criminal Procedure) Act 1990, that the offender be detained in a place other than a hospital situated in New South Wales.

Key Takeaways

  • Under s 27 of the Mental Health (Criminal Procedure) Act 1990, the Supreme Court holds a discretion, following notification by the Mental Health Review Tribunal, to order that an offender subject to a limiting term be detained either in a hospital or in some other place.
  • A finding of unfitness to be tried, followed by findings at a special hearing, does not result in a conviction; the verdicts entered under s 22 constitute a qualified finding of guilt only.
  • Where no suitable secure psychiatric facility exists for an offender with severe psychiatric needs, the court may nonetheless make a detention order in a non-hospital setting, reflecting practical constraints rather than therapeutic preference.
  • The Mental Health Review Tribunal identified a potential gap in the legislative scheme: a person detained under s 24(1)(b) pending a s 27 order may not qualify as a "forensic patient" within the meaning of Schedule 1 of the Mental Health Act 1990, raising questions about the Tribunal's jurisdiction to conduct regular reviews during that interim period. This point was flagged but not authoritatively resolved.
  • Expert unanimity among treating and forensic psychiatrists about an offender's risk level and need for secure supervision formed a significant part of the factual foundation for the court's exercise of discretion under s 27.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 14, 19, 22, 23, 24, 27
- Mental Health Act 1990 (NSW), s 82 and Schedule 1
- Crimes Act 1900 (NSW), s 23A
- Criminal Appeal Act 1912 (NSW), s 7(4)

Cases:
- R v Adams [2001] NSWSC 1042 (Sperling J, findings at special hearing and fixing of limiting term)
- Regina v Debbie Marie Adams [2002] NSWCCA 448