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District Court 14 May 2021

R v Gough

[2021] NSWDC 180

Assault & violence
CRIME ALLEGED WOUNDING WITH INTENT TO MURDER CONSIDERATION OF ONUS OF PROOF WHETHER ACT PROVEN

Citation: R v Gough [2021] NSWDC 180
Court: District Court of New South Wales
Date: 14 May 2021
Judge: Abadee DCJ

Background

The defendant was charged on indictment with wounding a named individual with intent to murder, contrary to s 27 of the Crimes Act 1900 (NSW). An alternative count of wounding with intent to cause grievous bodily harm under s 33(1)(a) was also before the Court. The alleged offending occurred in June 2017 at a hotel in Wyong, where the defendant launched a sudden, unprovoked attack on another guest using a fishing knife and his fists.

Both the Crown and the defendant's legal representatives agreed that the proposed evidence established a mental health impairment or cognitive impairment within the meaning of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act). They jointly applied for a special verdict under s 31 of the Act, which had only commenced operation in March 2021.

Three psychiatrists gave evidence. All agreed the defendant exhibited psychotic symptoms and was delusional at the time of the offending. He had reported experiencing visions of people attacking him in his sleep, and believed the victim was one of those attackers.

  • What does s 31(c) of the Act require the Court to be satisfied of before entering a special verdict? Is it sufficient that a mental health or cognitive impairment exists, or must the Court be satisfied of the full formulation expressed in the verdict: "act proven but not criminally responsible"?
  • Did the Crown prove beyond reasonable doubt that the act (the wounding) was committed by the defendant?
  • Did the defendant have a "mental health impairment" within the meaning of s 4 of the Act at the time of the offending?
  • What consequential orders were appropriate following entry of the special verdict?

Decision

Construction of s 31(c). Abadee DCJ identified a point of construction arising from the joint application. His Honour held that what the Court must be satisfied of under s 31(c) is not merely the existence of a mental health or cognitive impairment in isolation, but the full substance of the special verdict: that the act is proven and that the defendant is not criminally responsible for it. This broader construction was endorsed by both parties. The Court noted that this approach also assists the Court in making appropriate consequential orders under ss 33 and 34.

Was the act proven? The Crown carried the onus of proving the wounding beyond reasonable doubt, notwithstanding the defendant's admissions in a police interview. The Court found that witness statements from the victim, two hotel occupants, and attending police officers, together with an ERISP (electronically recorded interview) in which the defendant admitted using the knife and expressed an intent to kill, amply established the act. The wounding of the victim was proven to the required standard.

Mental health impairment. All three expert psychiatrists agreed the defendant exhibited psychotic symptoms and was delusional. Abadee DCJ found, without attaching a specific diagnostic label, that the defendant suffered from a psychotic disorder of some kind. That disorder manifested in disturbances of thought, perception, and judgment of the kind described in s 4(1)(a)-(c) of the Act, and constituted a mental health impairment that was present at the time of the offending.

Conclusion. Satisfied that the defence was established under s 31(c), the Court entered a special verdict of "act proven but not criminally responsible" on Count 1. Pursuant to s 32, no verdict was required on the alternative count.

Orders Made

  • A special verdict of "act proven but not criminally responsible" entered on Count 1 pursuant to s 31 of the Act.
  • The defendant ordered to be detained at a correctional facility or such other place as determined by the Mental Health Review Tribunal, until released by due process of law (s 33(1)(b)).
  • The Registrar directed to notify the Minister for Health of the orders as soon as practicable.
  • The Registrar directed to notify the Mental Health Review Tribunal as soon as practicable, and to provide the Tribunal with the Court's reasons, the Crown bundle (Exhibit A), and the reports of three named psychiatrists.
  • The Registrar directed to notify Justice Health as soon as practicable, and to provide the Court's reasons and the three psychiatric reports.

Key Takeaways

  • Under s 31(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the District Court held that a court entering a special verdict must be satisfied of the full formulation of "act proven but not criminally responsible," not merely that the defendant has a mental health or cognitive impairment. This is a broader construction than an alternative reading of the provision.
  • The Crown retains the burden of proving the act beyond reasonable doubt even where the defendant has made admissions and both parties jointly apply for a special verdict.
  • A psychotic disorder need not be specifically diagnosed or labelled for a court to be satisfied that a defendant has a "mental health impairment" within the meaning of s 4 of the Act, provided the symptoms satisfy the criteria in s 4(1)(a)-(c).
  • Where a special verdict is entered on a principal charge, s 32 of the Act does not require the court to also enter a special verdict on an available alternative charge.
  • Following a special verdict where unconditional release is not ordered, s 34 requires referral to the Mental Health Review Tribunal, which then determines the place and manner of the defendant's ongoing detention.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 5, 31, 32, 33, 34
- Crimes Act 1900 (NSW), ss 27, 33
- Evidence Act 1995 (NSW), s 177

Cases:
- R v Presser (1958) VR 45