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Supreme Court 23 November 2021

R v MC (No 2)

[2021] NSWSC 1542

Assault & violenceHomicide
CRIME MURDER DEFENCES MENTAL ILLNESS SPECIAL HEARING BY JUDGE ALONE

Citation: R v MC (No 2) [2021] NSWSC 1542
Court: Supreme Court of New South Wales
Date: 23 November 2021
Judge: Dhanji J

Background

The accused, a young person who was under 18 at the time of the alleged offences, faced two charges arising from events on 3 January 2019 at Chatswood: the murder of one person and the wounding of another with intent to cause grievous bodily harm. Because the accused was a child at the time, the Children (Criminal Proceedings) Act 1987 (NSW) applied throughout, prohibiting publication of the accused's name or any identifying material.

In August 2020, Wilson J found the accused unfit to be tried under the then-applicable Mental Health (Forensic Provisions) Act 1990 (NSW). The Mental Health Review Tribunal subsequently determined in August 2021 that the accused remained unfit and was unlikely to become fit within 12 months. The Director of Public Prosecutions elected to continue the prosecution, and the matter was listed for a special hearing before Dhanji J.

The special hearing was conducted under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which the court determined applied because proceedings were taken to have commenced at the start of the hearing before Dhanji J, consistent with earlier Supreme Court decisions.

  • Whether the current Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) governed the special hearing, notwithstanding that the alleged offences predated its commencement
  • Whether, on the limited evidence available, the acts charged were proven to the required criminal standard
  • Whether the accused was not criminally responsible for the offences by reason of mental illness, specifically whether he lacked knowledge that his acts were wrong at the relevant time
  • What verdict and orders were appropriate following the special hearing

Decision

Dhanji J confirmed that the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) governed the proceedings, following the reasoning of Wilson J in R v Tonga and subsequently adopted in several other Supreme Court decisions. Because the proceedings were taken to have commenced at the start of the special hearing, the transitional provisions directed application of the current Act.

The special hearing was conducted by a judge alone, as neither the accused nor the prosecutor elected for trial by jury. The Crown tendered a bundle of materials including witness statements, police records, an electronically recorded interview, psychiatric reports, and the earlier judgments. No defence evidence was called beyond an affidavit tendered with the Crown materials.

On the question of criminal responsibility, two psychiatrists, Dr Adam Martin and Dr Yumna Dhansay, each provided reports concluding that the accused had a mental health impairment at the time of the acts. Both experts were of the opinion that acute psychotic symptoms, including hallucinations and delusions, meant the accused did not know his actions were wrong in the relevant legal sense. He could not, at the time, reason with a moderate degree of sense and composure about whether his conduct was wrong as perceived by reasonable people.

Dhanji J found no basis to reject the unchallenged and internally consistent expert evidence. The court was satisfied on the balance of probabilities that, while the accused was aware of the nature and quality of his acts, he did not know those acts were wrong. Accordingly, the special verdict of act proven but not criminally responsible was entered on both counts under s 59(1)(b) of the Act.

Orders Made

  • A special verdict of act proven but not criminally responsible was entered on each count
  • The accused was ordered to be detained at the Austinmer Adolescent Unit of the Forensic Hospital, or such other place as the Mental Health Review Tribunal might recommend, until released by due process of law
  • The matter was referred to the Mental Health Review Tribunal under s 34 of the Act, with the judgment, Crown case statement, and all four psychiatric reports referred to the Tribunal

Key Takeaways

  • Under cl 5 of Pt 2 of Sch 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the current Act applies where proceedings are taken to have commenced at the start of the special hearing, even if the alleged offences predate the Act's commencement. This approach has now been followed consistently across multiple Supreme Court decisions.
  • A special verdict of act proven but not criminally responsible under s 59(1)(b) requires the court to be satisfied under s 28(1) that, at the time of the acts, the accused had a mental health or cognitive impairment that meant either they did not know the nature and quality of the act, or they could not reason with a moderate degree of sense and composure about whether the act was wrong.
  • Where expert psychiatric evidence is unchallenged, uncontradicted, and consistent with other evidence in the proceedings, the court requires a clear positive basis before it may be rejected.
  • The special verdict under s 59(1)(b) is distinct from an outright acquittal. A finding of act proven but not criminally responsible triggers referral to the Mental Health Review Tribunal and, where appropriate, an order for detention in a forensic health facility.
  • Publication restrictions under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) applied throughout, because the accused was under 18 at the time of the alleged offences, even though he had since turned 18 before the special hearing.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 5, 28, 33, 34, 56, 59, 62, 78, 80
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 14
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Procedure Act 1986 (NSW), s 133
- Crimes Act 1900 (NSW), ss 18(1)(a), 33(1)(a)
- Mental Health Act 2007 (NSW)

Cases:
- R v MC [2020] NSWSC 1160
- R v Tonga [2021] NSWSC 1064
- R v Siemek (No 1) [2021] NSWSC 1292
- R v Jackson [2021] NSWSC 1404
- R v Sands [2021] NSWSC 1325
- Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
- R v Presser [1958] VR 45
- M'Naghten's Case (1843) 8 ER 718
- The King v Porter (1933) 55 CLR 182; [1933] HCA 1
- Sodeman v The King (1936) 55 CLR 192; [1936] HCA 75