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District Court 19 November 2021

R v Munday (No 3)

[2021] NSWDC 629

Assault & violence
CRIME ARSON MULTIPLE OFFENCES SPECIAL HEARING JUDGE ALONE HEARING PERSON UNFIT TO BE TRIED

Citation: R v Munday (No 3) [2021] NSWDC 629
Court: District Court of New South Wales
Date: 19 November 2021
Judge(s): Haesler SC DCJ

Background

The accused, a man with an intellectual disability, was charged in 2020 with 29 counts of intentionally causing a fire while being reckless as to its spread to vegetation on public land or land belonging to another, contrary to section 203E(1) of the Crimes Act 1900. Because his disability prevented any real understanding of the court process or meaningful participation in a trial, he was found unfit to be tried in earlier proceedings.

A special hearing was conducted at Wollongong District Court over three days in October 2021. On 22 October 2021, the judge delivered reasons for returning verdicts of "proven but not criminally responsible" on each count but deferred formally entering those verdicts, principally to allow the defence adequate time to respond to a Crown application for detention and to make a case for conditional release.

The consequential question before the court on 19 November 2021 was what dispositional order to make after formally entering the special verdicts: whether the accused should be detained in custody or released into the community on conditions, pending review by the Mental Health Review Tribunal.

Legal Issues

  • Whether, upon a special verdict of "proven but not criminally responsible" under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the court was satisfied on the balance of probabilities that the safety of the accused or any member of the public would not be seriously endangered by conditional release, as required by section 33(3) of that Act.
  • Whether the Bail Act 2013 continued to apply once a special verdict was returned, or whether the accused became a "forensic patient" governed solely by the Act.
  • Whether the procedural mechanism of deferring the entry of the verdicts was appropriate in the circumstances, given the accused was not physically present and COVID-19 quarantine protocols were in place.

Decision

Issue 1: Procedural deferral of verdict entry

The judge found that once the special verdict was formally returned, the Bail Act 2013 would cease to apply and the accused would become a forensic patient to whom Part 5 of the Act applied (at [8]). The only permissible remand at that point would be a custodial one. Because the accused was appearing via AVL and was not physically present, and because COVID-19 protocols required three days' notice before a defendant could be taken into custody, the judge deferred formally entering the verdicts to allow the defence time to prepare submissions on conditional release (at [9]-[12]).

Issue 2: Application of section 33(3) and whether release would seriously endanger safety

The Crown submitted the accused should be detained until further order of the Tribunal, citing the risk of repeat fire-lighting now the pressure of the hearing had passed, the absence of any guarantee that current support structures would be sustained, and the fact that the accused's persecutory beliefs continued to present a potential danger (at [24]). The defence submitted that conditional release on similar terms to the existing bail was appropriate, pointing to approximately eleven months without offending, significantly improved community support, and expert opinion that community-based treatment would be more beneficial than prison-based treatment (at [25]).

Issue 3: Balancing risk against the consequences of detention

The court weighed the risk of further fire-lighting against the risks posed by custodial detention. The judge noted the accused had no real insight into his offending behaviour (at [29]), but also that no member of the public had in fact been seriously endangered by the fires over many years (at [30]). The judge found that gaol presented its own serious risks for a man who was older, in poor health, intellectually disabled, and vulnerable to exploitation in a violent environment, with access to external mental health treatment severely limited by COVID-19 restrictions (at [27]-[28]).

Issue 4: Determination on the balance of probabilities

The court was satisfied, on the balance of probabilities, that the safety of the accused or any member of the public would not be seriously endangered by conditional release (at [33]). That finding rested on the accused's approximately eleven months without offending or breaching bail conditions (at [25]), his engagement with community mental health services (at [19]), his good response to medication for a long-standing psychotic illness (at [18]), and the daily supervision provided by his guardian and cousins (at [31]-[32]). A conditional release order was made, with referral to the Mental Health Review Tribunal for ongoing supervision and six-monthly review (at [35]).

Orders Made

  • Conditional release order made pursuant to section 33(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, on the following conditions:
  • Obey all directions of the Mental Health Review Tribunal and attend all appointments with or organised by it
  • Reside at a specified address in Lake Heights, NSW
  • Not to be absent from that address between 7pm and 7am unless in the company of his guardian or named cousins, or by order of the Tribunal
  • Continue to engage with Illawarra Shoalhaven Local Health District services, attend psychiatric or psychological appointments, and take prescribed medication
  • Referral to the Mental Health Review Tribunal pursuant to section 34 of the Act, for ongoing supervision and review at six-monthly intervals
  • Registrar directed to notify the Minister for Health and Medical Research and the Mental Health Review Tribunal, and to provide relevant documentation including reasons for verdict and copies of expert reports

Key Takeaways

  • Under section 33(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, a court cannot make a release order following a special verdict of "proven but not criminally responsible" unless it is satisfied on the balance of probabilities that the safety of the defendant or any member of the public will not be seriously endangered (at [7], [33]).

  • Once a special verdict is returned, the Bail Act 2013 ceases to apply and the defendant becomes a forensic patient governed by Part 5 of the Act; the only available remand pending a release determination is a custodial one, not a bail order (at [8]-[9]).

  • The District Court confirmed that the dispositional determination under section 33 requires the court to weigh both the protection of the public and the welfare of the defendant, including the risks that custodial detention itself may pose (at [26]-[28]).

  • A period of approximately eleven months without reoffending or breaching bail conditions, combined with engagement with community mental health services and stable daily supervision, can weigh significantly in favour of a conditional release finding under section 33(3) (at [25], [31]-[33]).

  • Forensic patients released on conditions remain subject to ongoing oversight: the Mental Health Review Tribunal must review the matter as soon as practicable after referral and at six-monthly intervals thereafter, and may order detention if conditions are breached or the patient's mental condition deteriorates to a point of serious danger to others (at [35]-[36]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013
- Crimes Act 1900
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases
- Attorney General of NSW v X (2013) 235 A Crim R 17; [2013] NSWSC 1392
- R v Munday (No 2) [2021] NSWDC 628.
- R v Munday [2021] NSWDC 374
- R v Siemek [2021] NSWSC 1292
- R v Siemek (No. 2) [2021] NSWSC 1293
- R v Tonga [2021] NSWSC 1064