Citation: [2021] NSWDC 777
Court: District Court of New South Wales
Date: 3 December 2021
Judge(s): Neilson DCJ
Background
The accused had been charged with recklessly wounding another person, an offence under s 35(4) of the Crimes Act 1900 (NSW). Following a judge-alone hearing, the District Court returned a special verdict that the act was proven but that the accused was not criminally responsible, a finding that applies where a person's mental health or cognitive impairment means they cannot be held criminally liable for their actions.
Following that verdict, the Court ordered the Forensic Mental Health Network to prepare a report on the accused's condition and whether her release would pose a risk to herself or any other person. That report, dated 2 December 2021, was tendered alongside a report from her treating psychiatrist.
Both reports were before the Court at the final orders hearing. The central question was what order should be made in light of the expert material.
Legal Issues
- What final order should be made under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) following a special verdict of act proven but not criminally responsible?
- Whether the accused's release was appropriate given her current condition and treatment, and on what conditions.
Decision
Issue 1: Risk Assessment and Suitability for Release
The Court accepted the evidence from both the Forensic Mental Health Network report and the treating psychiatrist's report as establishing that, provided the accused continued her current medical treatment, she presented no material risk to herself, her son, or any member of the public (at [3]-[4]). On the basis of that common ground, unconditional release was not appropriate, but conditional release was (at [4]).
Issue 2: Appropriate Order Under the Act
The Court ordered the accused's conditional release under s 73(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, on condition that she appear before the Mental Health Review Tribunal as a forensic patient (at [5]). The Court noted that a person for whom a special verdict of act proven but not criminally responsible is entered becomes a forensic patient unless unconditionally released, and is then dealt with under Part 5 of the Act. The Tribunal would then consider imposing appropriate conditions under s 85 of the Act.
Issue 3: Procedural Steps Following Release
The Court directed the Registrar to notify the Mental Health Review Tribunal forthwith of the order and to provide the Tribunal with the relevant exhibits, ensuring the Tribunal had access to the expert material underpinning the decision (at [7]-[8]).
Orders Made
- The accused be released on condition that she appear before the Mental Health Review Tribunal as a forensic patient, pursuant to s 73(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, to enable the Tribunal to consider imposing conditions under s 85 of that Act.
- The Registrar is directed to advise the Mental Health Review Tribunal forthwith of the order and to provide the Tribunal with copies of Exhibits K and L.
Key Takeaways
- Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a person who receives a special verdict of act proven but not criminally responsible becomes a forensic patient unless unconditionally released, and is dealt with under Part 5 of the Act (at [5]).
- Conditional release under s 73(1)(c) of the Act, requiring the former accused to appear before the Mental Health Review Tribunal, is an available and appropriate order where expert evidence indicates that continuing treatment removes material risk but unconditional release is not warranted (at [4]-[5]).
- The District Court's role concludes with the making of final orders; responsibility for determining ongoing conditions then passes to the Mental Health Review Tribunal under s 85 of the Act (at [5]).
- A Forensic Mental Health Network report, obtained under s 33(2) of the Act following a special verdict, formed the evidential foundation for the court's assessment of risk and the appropriateness of conditional release (at [2]-[3]).
- Bail does not continue after final orders of this kind are made; the court confirmed that bail is a mechanism pending trial or sentence, which has no further role once the court has made its final forensic order (orders block).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases
- Nil