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District Court 19 November 2021

R v Munday (No 2)

[2021] NSWDC 628

Other
CRIME ARSON MULTIPLE OFFENCES CRIME JUDGE ALONE HEARING DEFENCE OF COGNITIVE IMPAIRMENT PARTIES AGREE DEFENCE AVAILABLE

Citation: R v Munday (No 2) [2021] NSWDC 628
Court: District Court of New South Wales
Date: 19 November 2021
Judge: Haesler SC DCJ

Background

The defendant, a 55-year-old man with a lifelong intellectual disability, had lived in the same street at Lake Heights his entire life. Over several years, fires were deliberately lit on vacant nearby blocks, often involving furniture piled up and ignited late at night. Some fires spread and threatened neighbouring homes and property. Residents and police installed motion-detection cameras to identify those responsible.

The defendant was arrested in August 2020 and charged on an indictment containing 29 counts of intentionally causing a fire while being reckless as to its spread to vegetation on public land or the land of another, under s 203E(1) of the Crimes Act 1900. Two counts related to attempts, where fires were lit but went out. The alleged offending spanned 2018 to 2020.

The defendant's profound cognitive impairment had been apparent from the outset. On 31 March 2021, the court found him unfit to be tried. The Director of Public Prosecutions elected to proceed on all 29 counts, triggering a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. That hearing was conducted by audio-visual link, with the defendant appearing from his solicitor's office with the support of solicitors and two carers.

  • What verdicts are available at a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and how should such a hearing be conducted?
  • Whether the prosecution was required to prove the mental element of the offences, or only the physical acts, before the cognitive impairment defence could be considered.
  • Whether the cognitive impairment defence under s 28 of the Act, reflecting the M'Naghten rules as modified by common law, remained available and unchanged despite the repeal and re-enactment of the relevant legislation.
  • Whether the physical acts constituting each of the 29 counts were proved beyond reasonable doubt, including through the use of CCTV identification evidence and tendency evidence.
  • Whether the unanimous expert evidence established, on the balance of probabilities, that the defendant did not know the nature and quality of his acts or that they were wrong.

Decision

The special hearing framework. The court confirmed that a special hearing under the Act must be conducted as nearly as possible to a regular criminal trial, without prejudicing the defendant beyond the effects of his unfitness. The defendant was taken to have pleaded not guilty. The verdicts available included an outright acquittal, a finding that the defendant committed the offence charged, a finding of an alternative offence, or a special verdict of "act proven but not criminally responsible." The court emphasised that the defendant retained the right to raise any defence available to a fit accused.

Proof of physical acts before considering the cognitive impairment defence. Both parties agreed that the defence of cognitive impairment was established on the evidence. However, the court confirmed that the defence could only be engaged after the prosecution proved the physical elements of each offence beyond reasonable doubt. Proof of the mental element was not required at that stage. This approach was consistent with pre-existing common law principles under Hawkins v The Queen and R v Minani, and the court found those principles were not altered by the new Act.

Identification and tendency evidence. The court was satisfied beyond reasonable doubt that the defendant was the person who committed the physical acts underlying each of the 29 counts. CCTV footage identified him, no one in the area bore a resemblance to him, and his deceased brother could not have been responsible. Evidence that the defendant was observed lighting a fire in similar circumstances in 2014, involving the same type of fuel and method, established a relevant tendency. The court treated this as tendency evidence rather than coincidence evidence, and was satisfied it was the defendant involved in each fire.

Cognitive impairment defence established. The court accepted the unanimous expert opinions of two psychiatrists (Dr Pullman and Dr Ashkar). On the balance of probabilities, the defendant's cognitive impairment meant that, at the time of each act, he did not know the nature and quality of what he was doing, and could not reason with a moderate degree of sense and composure about whether his acts, as perceived by reasonable people, were wrong. The court therefore entered a special verdict of "act proven but not criminally responsible" on each of the 29 counts.

Orders Made

  • 22 October 2021: Proceedings adjourned without entering verdicts until 22 November 2021, to allow the defendant to prepare and file evidence in support of a submission that conditional release would not seriously endanger his safety or that of any member of the public.
  • 19 November 2021: On each of counts 1 to 29 in the indictment, a special verdict of "act proven but not criminally responsible" was returned.

Key Takeaways

  • Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, a court conducting a special hearing must first determine whether the physical elements of each offence are proved beyond reasonable doubt before considering the cognitive impairment defence. Proof of the mental element is not required at that intermediate stage.
  • The defence of cognitive impairment in s 28 of the Act incorporates the two limbs of the M'Naghten rules as modified by The King v Porter: the defendant either did not know the nature and quality of the act, or did not know the act was wrong in the sense that they could not reason about it with a moderate degree of sense and composure. The District Court confirmed that the repeal and re-enactment of the relevant legislation did not alter these underlying common law principles.
  • Where both parties at a special hearing agree that the evidence establishes a cognitive impairment defence, s 31 of the Act permits the court to enter a special verdict of "act proven but not criminally responsible" at any point in the proceedings, provided the physical acts have first been proved.
  • Tendency evidence, rather than coincidence evidence, was the appropriate characterisation where a defendant was observed using a substantially similar method to light fires on an earlier occasion. This distinction mattered for how the evidence was assessed and what warnings were required.
  • A significant cognitive impairment does not automatically preclude proof that a defendant was capable of appreciating some basic physical consequences of an act, even where that impairment negates criminal responsibility. The court noted, as an observation not strictly necessary to the verdict, that the evidence was sufficient to show the defendant could appreciate that a fire might spread beyond its immediate confines, even though he lacked capacity to understand that property or lives might be endangered.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 203E(1)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 5, 28, 30, 31, 54, 56; Part 4 Division 3
- Evidence (Audio and Visual Links) Act 1998 (NSW), Part 1B, s 22C
- Rural Fires Act 1997 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases
- R v Munday [2001] NSWDC 374
- M'Naghten's Case, Re (1843) 8 ER 718
- The King v Porter (1933) 55 CLR 182
- Stapleton v The Queen (1952) 86 CLR 358
- Hawkins v The Queen (1994) 179 CLR 500
- R v Minani (2005) 63 NSWLR 490
- R v Tonga [2021] NSWSC 1064
- R v Siemek [2021] NSWSC 1292
- The Queen v Baden-Clay (2016) 258 CLR 308
- Fox v Percy (2003) 214 CLR 118
- Smith v The Queen (2001) 206 CLR 650
- Slater v R [2015] NSWCCA 310