Citation: R v Barolia (No. 2) [2021] NSWDC 696
Court: District Court of New South Wales
Date: 14 September 2021
Judge(s): Neilson DCJ
Background
The accused faced criminal proceedings arising from an incident on 4 December 2019, in which the actus reus (the physical act constituting the offence) occurred. The accused sought a special verdict on the basis of mental illness, and both the prosecution and defence retained expert psychiatrists. Both experts ultimately agreed that the accused was entitled to the special verdict sought.
A new legislative regime, the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the new Act), commenced on 27 March 2021, replacing the Mental Health (Forensic Provisions) Act 1990 (the old Act). The new Act introduced a different form of special verdict, described as "act proven but not criminally responsible."
The question before the court was a preliminary one: because the offence predated the new Act, which legislative framework governed the proceedings? The answer turned on the interpretation of a transitional provision in Schedule 2, clause 5 of the new Act.
Legal Issues
- Whether the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 or the Mental Health (Forensic Provisions) Act 1990 applied to the proceedings.
- Whether the question of the mental illness defence had been "raised" before the commencement of the new Act on 27 March 2021, within the meaning of Schedule 2, clause 5 of the new Act.
- What conduct or event is sufficient to constitute the "raising" of a mental illness defence for the purposes of that transitional provision.
Decision
Issue 1: The applicable legislative framework
The court held that the new Act applies to the proceedings. Because the mental illness defence was not formally raised before 27 March 2021, the transitional provision in Schedule 2, clause 5 was not engaged, and the new Act governed the proceedings from commencement (at [22]).
Issue 2: What constitutes "raising" the question of mental illness
The court rejected the Crown's primary submission that the existence of expert evidence capable of supporting a mental illness defence is sufficient to constitute "raising" the question under the transitional provision (at [13]). The court also found that no formal notice of the defence had been given to the Crown or DPP prior to the relevant date, even though expert reports from both the defence psychiatrist and a forensic toxicologist had been served on the DPP, prompting the prosecution to retain its own expert (at [13], [22]).
Issue 3: What mechanism formally raises the question
The court accepted defence counsel's submissions and held that the appropriate mechanism for raising the question is service of a formal notice on the Crown and any other parties to the proceedings (at [21]). This approach was preferred because it favours certainty and consistency, avoiding the potential for a contested evidentiary dispute about when the issue was raised (at [21]). The court noted that formal notices are readily proved, particularly in the age of electronic communication (at [21]).
Issue 4: When the defence was formally raised in this case
The court found that the mental illness defence was first raised formally in court on 9 September 2021 at a call-over before Yehia DCJ, well after the new Act commenced (at [17], [18], [22]). No court document before that date referred to the defence being raised, and no formal notification had been provided to the Crown or DPP (at [22]).
Orders Made
- The court found that the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 applies to the proceedings.
- The issue of mental illness defence was found to have been formally raised only on 9 September 2021, after the new Act's commencement.
- No recourse to Schedule 2, clause 5 of the new Act was required.
Key Takeaways
- The District Court held that, under the transitional provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the new Act applies where the mental illness defence has not been formally raised before the Act's commencement date of 27 March 2021, even if the underlying offence predates that commencement (at [22]).
- Serving expert psychiatric reports on the prosecution does not, of itself, constitute formally "raising" a mental illness defence for the purposes of Schedule 2, clause 5 of the new Act (at [13]).
- The court identified service of a formal notice on the Crown and other parties as the appropriate mechanism to raise the question of a mental illness defence under the transitional provision, on the basis that this approach promotes certainty and avoids evidentiary disputes (at [21]).
- Where a mental illness defence has not been formally raised before 27 March 2021 in either court documents or by formal notice, the new Act governs the proceedings and prescribes the form of the special verdict: "act proven but not criminally responsible" (at [1], [22]).
- Both expert psychiatrists in this matter agreed that the accused was entitled to the special verdict sought, notwithstanding that they differed on diagnosis (at [12]).
Legislation and Cases Referenced
Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020
- Mental Health (Forensic Provisions) Act 1990
Cases
- Not stated