Citation: R v Knights [2020] NSWDC 225
Court: District Court of New South Wales
Date: 22 January 2020
Judge: Judge W Hunt
Background
The accused was arraigned at Lismore District Court on an indictment containing three counts. The principal charge (count 1) alleged that on 29 November 2017 at Eden Creek, he endeavoured to persuade a person or persons unknown to murder a New South Wales police officer, contrary to s 26 of the Crimes Act 1900. An alternative charge (count 2) alleged that he intentionally or recklessly caused a threatening document to be received by an unnamed person, threatening to kill a NSW police officer.
The central piece of Crown evidence was a Facebook post of approximately 40 minutes' duration, which the accused accepted he had made. The Crown also relied on text messages tending to show an ongoing negative disposition toward NSW Police and other justice officials. The accused, for his part, pointed to other text messages in which he had urged community groups to pursue non-violent action, seeking a more benign interpretation of his conduct.
The accused pleaded not guilty to counts 1 and 2, and guilty to count 3, which alleged possession of a prohibited weapon (described as a "bulletproof" vest) without a permit, contrary to s 7 of the Weapons Prohibition Act 1998. The parties consented to a judge-alone trial under s 132(2) of the Criminal Procedure Act 1986.
Legal Issues
- Whether the accused's conduct during the Facebook post amounted to an endeavour to persuade a person or persons unknown to murder a NSW police officer under s 26 of the Crimes Act 1900.
- Whether, if the accused was otherwise guilty of count 1 or count 2, the mental illness defence under the Mental Health (Criminal Procedure) Act 1990 was established, entitling him to a special verdict of not guilty on grounds of mental illness.
- The appropriate sentence for the guilty plea to count 3 (possession of a prohibited weapon without a permit).
Decision
The parties and the Court proceeded on the common understanding that, if the accused were found to have committed either count 1 or count 2, the matter would be resolved by a special verdict of not guilty by reason of mental illness. That position was supported by a concordance of psychiatric evidence from two eminent psychiatrists, Dr Eagle and Dr O'Dea, who both supported the availability of the mental illness defence. Judge Hunt noted this agreement as one of the reasons the matter was appropriately determined by a judge alone rather than a jury.
The judgment was delivered ex tempore at the conclusion of the trial. Having reviewed the Facebook post footage, the search warrant video, and records of interview, the Court applied the standard criminal directions to itself as the tribunal of both fact and law. These included the presumption of innocence, proof beyond reasonable doubt, the sole burden on the Crown, and the requirement that inferences be rational and justifiable. The Crown confined its case on count 1 to the "endeavoured to persuade" limb of s 26, and accepted that it was unnecessary to identify the specific officer targeted, with NSW police officers as a class being a sufficient description.
On count 3, Judge Hunt accepted that the accused had received the bulletproof vest as a gift from a neighbour, had never used it, and that it remained in pristine condition. The judge noted the somewhat ironic circumstance that, while the vest fell within the statutory definition of a prohibited weapon, its inherent purpose is protective rather than harmful. Taking into account the early plea of guilty, the accused's remorse, his lengthy period of pre-sentence custody on remand, and his limited antecedents, the Court declined to impose a custodial sentence, instead convicting the accused under s 10A of the Crimes (Sentencing Procedure) Act 1999 without any further penalty.
Orders Made
- Special verdict of not guilty by reason of mental illness in respect of counts 1 and 2 (reflecting the conceded position supported by psychiatric evidence).
- Count 3: conviction recorded under s 10A of the Crimes (Sentencing Procedure) Act 1999 with no further penalty imposed.
Key Takeaways
- A special verdict of not guilty by reason of mental illness under the Mental Health (Criminal Procedure) Act 1990 remains available where, notwithstanding that the accused otherwise committed the relevant act, psychiatric evidence establishes the mental illness defence. Here, a concordance of expert evidence from two psychiatrists supported that outcome.
- Under s 26 of the Crimes Act 1900, the Crown need not identify a specific named victim to establish an endeavour to persuade a person to commit murder. A class of persons (here, NSW police officers) is sufficient.
- The District Court applied the full suite of jury directions to itself in the judge-alone trial, as required by s 133 of the Criminal Procedure Act 1986, including directions on onus, burden of proof, the presumption of innocence, and the drawing of inferences.
- Where an accused possesses a prohibited weapon that is inherently protective in nature, has never used it, received it as a gift, and has served substantial time on remand, a conviction under s 10A without further penalty may be appropriate.
- Agreement between the parties on the applicability of the mental illness defence was identified as a material factor favouring the election for a judge-alone trial, consistent with the approach recognised in cases such as R v Azari (No 1) [2017] NSWSC 404.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 26, 31(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Mental Health (Criminal Procedure) Act 1990 (NSW)
- Weapons Prohibition Act 1998 (NSW), s 7
Cases
- Hawkins v R [1994] HCA 28; (1994) 179 CLR 500
- R v Azari (No 1) [2017] NSWSC 404
- R v Issa (unreported, NSWSC, 25 October 1995)