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7
Supreme Court 15 October 2021

R v Sands

[2021] NSWSC 1325

Homicide
CRIME MURDER MAJOR DEPRESSIVE DISORDER PSYCHOTIC SYMPTOMS NEURODEGENERATIVE DISEASE POSTERIOR CORTICAL ATROPHY

Citation: R v Sands [2021] NSWSC 1325
Court: Supreme Court of New South Wales
Date: 15 October 2021
Judge: R A Hulme J

Background

The accused faced four charges arising from events at a residential property in Hillvue, Tamworth on 17 October 2019: two counts of murder, and two counts of setting fire to a dwelling with intent to murder. The deceased were the accused's wife of approximately 30 years, and a five-year-old child who was staying at the property. A seven-year-old child, the younger sibling of the deceased child, was also present and named in one of the arson charges.

In the period leading up to the events, the accused had exhibited progressive neurological and psychiatric deterioration. Family members had observed confusion, disorientation, and apparent hallucinations. Medical attendances from 2015 onward documented neurological complaints, and a hospitalisation in August 2019 recorded an episode where the accused believed the house was on fire when it was not.

The accused pleaded not guilty. Both the defence and the prosecution agreed that the available evidence established a defence of mental health impairment and cognitive impairment under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The matter proceeded before Hulme J as a hearing under s 31 of that Act rather than as a trial.

  • Whether the accused had a mental health impairment or cognitive impairment, or both, within the meaning of the Act at the time of the offences
  • Whether, because of that impairment, the accused either did not know the nature and quality of his acts or did not know that his acts were wrong
  • Whether the court was satisfied, after considering the agreed evidence, that the defence under s 28 of the Act was established, enabling a special verdict to be entered under s 31

Decision

Hulme J confirmed that a s 31 hearing is not a trial, and therefore the formal obligations imposed on a judge hearing a trial alone under s 133 of the Criminal Procedure Act 1986 (NSW) did not apply. The court nonetheless provided detailed reasons in the exercise of its judicial function.

Two expert opinions were before the court: a report by Dr Sharon Reutens, a consultant psychiatrist retained by the defence, and a report by Dr Susan Pulman, a forensic psychologist retained by the Crown. Both experts concluded that the accused was likely suffering from a neurodegenerative disease, identified as either Posterior Cortical Atrophy or Lewy Body Dementia, which produced psychotic symptoms including visual hallucinations. Both also considered that the accused may have met the criteria for Major Depressive Disorder at the relevant time.

Dr Pulman concluded that the accused did not understand the nature or quality of his acts, and that he lacked the capacity to appreciate that his actions were wrong or to reason about that question with any composure. Dr Reutens reached materially consistent conclusions. Hulme J accepted the combined force of these unanimous expert opinions.

The court found beyond reasonable doubt that the accused physically committed the acts constituting counts 1, 2, 3, and 5 of the indictment. The court was also satisfied on the balance of probabilities that, because of both a mental health impairment and a cognitive impairment, the accused did not know the nature and quality of his acts and did not know they were wrong. The defence under s 28 was established, and a special verdict of act proven but not criminally responsible was entered on each count.

Orders Made

  • Special verdict of act proven but not criminally responsible entered in respect of counts 1, 2, 3, and 5 of the indictment

Key Takeaways

  • Under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a court may enter a special verdict of act proven but not criminally responsible at any time in proceedings, including before a jury is empanelled, provided both parties agree the evidence establishes the defence and the court is independently satisfied of that conclusion.
  • A s 31 hearing is not a trial, and the formal requirements imposed on judge-alone trials under s 133 of the Criminal Procedure Act 1986 (NSW) do not apply to it.
  • The Act applies to offences alleged to have been committed before its commencement on 27 March 2021, consistent with the reasoning in R v Tonga [2021] NSWSC 1064.
  • Where unanimous expert opinion from both a defence psychiatrist and a Crown forensic psychologist supports the existence of a neurodegenerative disease causing psychotic symptoms, that combined evidence can satisfy the court on the balance of probabilities that neither limb of s 28 criminal responsibility is met.
  • The standard of proof for the physical acts underlying the charges remains beyond reasonable doubt, while the mental health or cognitive impairment defence need only be established on the balance of probabilities.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 5, 28, 31, Part 3
- Criminal Procedure Act 1986 (NSW), s 133
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- R v Tonga [2021] NSWSC 1064
- R v Siemek (No. 1) [2021] NSWSC 1292