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Court of Criminal Appeal 24 October 2022

Masters v R

[2022] NSWCCA 228

Traffic & driving
CRIMINAL LAW CONVICTION APPEAL JUDGE ALONE TRIAL APPEAL ALLOWED SPECIAL VERDICTS ENTERED

Citation: Masters v R [2022] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 24 October 2022
Judges: Brereton JA, N Adams J, Lonergan J

Background

The appellant was convicted in the Sydney District Court, following a judge-alone trial, of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. Both offences arose from a single incident in September 2017 when the appellant crossed to the wrong side of the road on Hastings River Drive in Port Macquarie, colliding at speed with an oncoming vehicle. The driver of that vehicle was killed and the passenger was seriously injured. The appellant was found at the scene wearing only a shirt and underpants, and paramedics observed lacerations to his wrist and a puncture wound to his chest that were inconsistent with the crash itself.

The sole issue at trial was whether the appellant was mentally ill at the time of the offences so as to attract a special verdict of not guilty by reason of mental illness under s 38 of the then-applicable Mental Health (Forensic Provisions) Act 1990 (NSW). Two experienced forensic psychiatrists each independently concluded, in comprehensive reports and oral evidence, that the appellant was suffering from schizophrenia manifesting in persecutory delusions, thought disorder, disorganised behaviour, and distress.

The trial judge was unpersuaded and convicted the appellant on both counts. He was sentenced to an aggregate three-year term of imprisonment, to be served by way of an Intensive Correction Order. The appellant appealed against both convictions.

  • Whether the trial judge's interventions during the expert evidence were excessive and gave rise to procedural unfairness or an apprehension of bias, constituting a miscarriage of justice.
  • Whether the trial judge applied the wrong legal test in assessing whether the mental illness defence was established.
  • Whether the Court of Criminal Appeal should itself enter special verdicts of act proven but not criminally responsible pursuant to s 7(4) of the Criminal Appeal Act 1912 (NSW).

Decision

Ground 1: Judicial interventions and apprehension of bias

Lonergan J (with Brereton JA and N Adams J agreeing) found that, although the trial judge's interventions were excessive and misguided, they did not give rise to procedural unfairness. The expert witnesses were able to maintain and clearly articulate their views despite the interruptions. The Court characterised what occurred as a robust exchange between a sceptical judicial officer and professionally qualified experts in a judge-alone trial, noting there was no jury to be influenced. Applying the test for apprehension of bias, the Court found that a fair-minded lay observer would not reasonably apprehend that the trial judge had departed from impartial decision-making.

Ground 2: Wrong legal test

The Court found that the trial judge had erroneously overstated the standard the appellant needed to meet. The mental illness defence does not require an accused to be "disabled" or "quite incapable" of understanding. The correct test, drawn from M'Naughten, Porter, and Sodeman, is whether the disease of the mind meant the accused could not reason with a moderate degree of calmness about the moral quality of the conduct, so as to know it was wrong. This involves an inability to reason with moderate composure, not a total incapacity to recognise wrongfulness. The trial judge's formulation of the test was held to be legally incorrect and constituted an error.

Ground 3: Entry of special verdicts by the appellate court

Drawing on the evidence of both forensic psychiatrists, the Court found that the appellant's schizophrenia, including persecutory delusions, thought disorder, and disorganised behaviour, affected him to the point that he was not able to reason with a moderate degree of sense and composure that driving into the other vehicle was morally wrong. The Court accepted the expert evidence and concluded the appellant was mentally ill so as not to be criminally responsible at the time of the offences. Special verdicts should have been entered at trial, and the Court of Criminal Appeal substituted them on appeal.

Orders Made

  • The appeal is allowed.
  • The convictions for dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm, and the sentence imposed in the District Court, are quashed.
  • Special verdicts of acts proven but not criminally responsible are substituted pursuant to clause 5(3) of Schedule 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
  • The appellant is discharged on the condition that he comply with all requirements of his Community Treatment Order and take medication prescribed by his treating psychiatrist.

Key Takeaways

  • The mental illness defence does not require proof that an accused was entirely incapable of understanding the wrongfulness of conduct. The correct test, confirmed in this decision by reference to M'Naughten, Porter, and Sodeman, is whether the accused, by reason of a disease of the mind, lacked the ability to reason with a moderate degree of calmness about the moral quality of the act.
  • A trial judge who frames the mental illness defence as requiring the accused to be "disabled" or "quite incapable" applies a standard that is legally too onerous. That misdirection was sufficient here to constitute a ground for allowing the appeal.
  • Excessive judicial intervention in expert evidence does not automatically give rise to an apprehension of bias or procedural unfairness. Where the experts can persist in and clearly articulate their views, and there is no jury, the threshold for a successful bias ground is not easily reached.
  • Where the Court of Criminal Appeal is satisfied on the evidence that the mental illness defence was made out, s 7(4) of the Criminal Appeal Act 1912 (NSW) empowers it to substitute special verdicts rather than order a retrial.
  • Consistent, uncontested expert psychiatric evidence supporting the defence of mental illness carries significant weight. Here, both independent experts agreed the appellant met the legal test, and the Court of Criminal Appeal accepted that evidence and acted on it directly.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(1)(c) and 52A(3)(c)
- Criminal Appeal Act 1912 (NSW), s 7(4)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 38 (now repealed)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Schedule 2, clause 5(3)
- Mental Health Act 2007 (NSW)

Cases:
- R v M'Naughten (1843) 10 CL & Fin 200; 8 ER 718
- R v Porter (1933) 55 CLR 182; [1933] HCA 1
- Sodeman v R (1936) 55 CLR 192; [1936] HCA 75
- Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56
- Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
- Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
- British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
- Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
- Polsen v Harrison [2021] NSWCA 23
- Tarrant v R [2018] NSWCCA 21
- TA v R [2019] NSWCCA 145
- Carter v R [2019] NSWCCA 11
- Galea v Galea (1990) 19 NSWLR 263
- Jones v National Coal Board [1957] 2 QB 55
- Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31