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Supreme Court 15 November 2021

R v Green (No 10)

[2021] NSWSC 1449

Homicide
CRIMINAL LAW TRIAL BY JUDGE ALONE SPECIAL HEARING MURDER WHOLLY CIRCUMSTANTIAL CASE REASONS FOR VERDICT

Citation: R v Green (No 10) [2021] NSWSC 1449
Court: Supreme Court of New South Wales
Date: 15 November 2021
Judge: Campbell J

Background

The accused, Jesse Green, faced a special hearing (a modified form of trial for persons with significant mental health impairments) in the Supreme Court on three counts: the murder of Ms Teah Luckwell, an aggravated break and enter, and using an offensive weapon. The proceedings were conducted under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) before Campbell J sitting alone as judge.

The murder count concerned the death of Ms Luckwell, who was found stabbed and lying on the kitchen floor of her home in South Tamworth on the night of 28 March 2019. She was discovered by her neighbours, Mr and Mrs O'Connor, who also rescued her 14-month-old daughter from inside the flat. The case against Green was wholly circumstantial: no witness directly observed the killing.

The special hearing proceeded on the basis that Green had a mental health impairment within the meaning of the Act. The central question was whether the Crown could prove the acts alleged beyond reasonable doubt, and whether the mental health impairment defence was established on the balance of probabilities.

  • Whether the Crown proved beyond reasonable doubt that Green committed the act of fatally stabbing Ms Luckwell, given the entirely circumstantial nature of the evidence.
  • Whether the mental health impairment defence under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) was established on the balance of probabilities in relation to each count.
  • What verdict was available and appropriate under s 59 of the Act, having regard to the range of verdicts set out in that provision.

Decision

Campbell J found, on the circumstantial evidence as a whole, that the acts alleged in each count were proven beyond reasonable doubt. The murder count was established notwithstanding that no witness saw the stabbing. The court drew inferences from CCTV footage, witness observations, forensic pathology evidence, crime scene evidence, and other circumstantial material to conclude that Green was responsible for Ms Luckwell's death.

On the mental health impairment defence, the court was satisfied on the balance of probabilities that the defence was made out in respect of all three counts. The expert psychiatric evidence supported the conclusion that Green was suffering from a mental health impairment at the relevant times. Campbell J noted that the same reasoning applied across all counts because the relevant circumstances were proximate in time.

The court returned a Special Verdict on each count: the act was proven, but Green was not criminally responsible. Campbell J took care to note that a Special Verdict does not result in the accused being released into the community. Rather, Green was to remain detained and subject to the ongoing supervision of the Mental Health Review Tribunal, which retains authority over any future release.

Orders Made

  • Special Verdict on Count 1: the act of fatally stabbing Ms Luckwell is proven, but Green is not criminally responsible.
  • Special Verdict on Count 2: the act of aggravated break and enter at Ernest Street, Oxley Vale is proven, but Green is not criminally responsible.
  • Special Verdict on Count 3: the act of using an offensive weapon at 48 Robert Street is proven, but Green is not criminally responsible.
  • Green referred to the Mental Health Review Tribunal under s 67 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
  • Green ordered to be detained at such place and in such manner as the Mental Health Review Tribunal determines until released by due process of law, under s 33 of the Act.
  • Copies of the reasons and the evidence of the expert psychiatrists to be forwarded to the Registrar of the Mental Health Review Tribunal.
  • Sequences 2, 5, 6 and 9 on the s 166 certificate remitted to the Local Court at Tamworth.

Key Takeaways

  • A wholly circumstantial murder case can satisfy the beyond reasonable doubt standard in a special hearing where the cumulative weight of forensic, CCTV, and witness evidence is sufficient to support the necessary inferences.
  • Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a Special Verdict of "act proven but not criminally responsible" is available where the mental health impairment defence is established on the balance of probabilities, even in proceedings involving serious violence.
  • A Special Verdict does not equate to an acquittal or release: the accused remains detained under the authority of the Mental Health Review Tribunal, which governs any future release and must notify both the Attorney General and the Minister for Health before authorising one.
  • Where multiple counts arise from circumstances that are proximate in time and connected in nature, findings on the mental health impairment defence made in relation to one count may apply equally to the others.
  • Special hearings under the Act proceed before a judge alone and require the court to identify and weigh the full range of verdicts available under s 59 before determining the appropriate outcome.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 6, 28, 29, 33, 51, 54, 56, 59, 67
- Criminal Procedure Act 1986 (NSW), ss 133, 166
- Evidence Act 1995 (NSW), ss 32, 38, 50, 116, 165
- Crimes Act 1900 (NSW), ss 33B, 105A, 112, 428B, 428C, 428F

Cases:
- Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28
- R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35