AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Supreme Court 5 August 2022

R v Thompson (No 1)

[2022] NSWSC 1044

Homicide
CRIME MURDER ELEMENTS OF THE OFFENCE OF MURDER DEFENCE OF MENTAL HEALTH IMPAIRMENT JUDGE ALONE TRIAL WHETHER THE ACT WAS WRONG

Citation: R v Thompson (No 1) [2022] NSWSC 1044
Court: Supreme Court of New South Wales
Date: 5 August 2022
Judge(s): Walton J

Background

The accused was charged with the murder of a man he did not know, following events on the evening of 31 July 2020 in Bomaderry, New South Wales. Over approximately ninety minutes, the accused attended the deceased's property on three separate occasions. On the first two occasions, he damaged property and yelled abuse. On the third occasion, he set fire to the house. The deceased did not escape and died from carbon monoxide toxicity, also suffering burns and smoke inhalation.

The accused pleaded not guilty on the grounds of mental health impairment. The trial proceeded before a judge alone, following a written election by the accused and the Crown's consent, as required under the Criminal Procedure Act 1986 (NSW).

The parties agreed that the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act") applied, even though the offence predated the Act's commencement. The court followed the approach taken in R v Tonga and R v Siemek, construing "commencement of proceedings" as the presentation of the indictment, which occurred in March 2022, after the Act commenced.

  • Whether the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) applied to these proceedings, given the offence predated the Act's commencement
  • Whether the accused met the definition of "mental health impairment" under s 4 of the Act
  • Whether the accused satisfied the two limbs of the mental health impairment defence under s 28 of the Act, specifically whether he knew his act was wrong at the time of the offence
  • What obligations s 133 of the Criminal Procedure Act 1986 (NSW) imposed on a judge in a judge-alone criminal trial, including in relation to findings of fact and reasoning
  • Whether a special verdict under s 31 of the Act was available, given that the Crown and accused did not agree that the evidence established the defence

Decision

Walton J found that the Act applied to the proceedings. Following R v Tonga and R v Siemek, his Honour held that "commencement of proceedings" referred to the present trial proceedings, which commenced with the presentation of the indictment in March 2022, well after the Act took effect. The savings provisions in the Act therefore did not preserve the earlier legislation for this trial.

On the applicable procedural framework, his Honour confirmed that s 31 of the Act, which permits a judge to enter a special verdict at any stage where the Crown and accused agree the defence is established, was not available here because there was no such agreement. The full requirements of s 133 of the Criminal Procedure Act, including the obligation to record all principles of law applied and all findings of fact, with reasoning linking them to the verdict, therefore applied in full.

Two forensic psychiatrists, Dr Eagle and Dr Ellis, gave expert evidence. Both concluded that the accused suffered from a psychotic disorder, diagnosed as schizophrenia, schizoaffective disorder (depressive subtype), or depression with psychotic features. The condition produced persecutory or referential delusions and auditory hallucinations, and significantly impaired his judgment. Walton J accepted that the impairment arose from an underlying mental health condition, not solely from a substance use disorder, and accepted the expert opinions that both limbs of s 28 of the Act were satisfied.

On the second limb, specifically whether the accused knew his act was wrong, his Honour was satisfied that, while the accused understood the nature and quality of what he was doing, he was unable to reason with a moderate degree of sense and composure about whether the act was wrong as a reasonable person would perceive it. Countervailing considerations raised in the evidence were considered but ultimately did not displace the expert opinions. The mental health impairment defence was made out, and a special verdict was entered.

Orders Made

  • The act (setting fire to the premises, causing the death of the deceased) was found proven.
  • The accused was found not criminally responsible for the act.
  • The verdict entered on the indictment: "act proven but not criminally responsible."

Key Takeaways

  • The Supreme Court confirmed that "commencement of proceedings" in the transitional provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) refers to the current trial proceedings, commencing with presentation of the indictment, not the earlier investigation or charge. This follows the approach in R v Tonga and R v Siemek.

  • Under s 28 of the Act, a mental health impairment defence requires satisfaction of two limbs: first, that the accused had a "mental health impairment" as defined in s 4; and second, that at the time of the act, the accused did not know the act was wrong. The test for the second limb is whether the accused could reason with a moderate degree of sense and composure about whether the act was wrong as a reasonable person would perceive it.

  • Where the Crown and accused do not agree that the evidence establishes a mental health impairment defence, s 31 of the Act (which permits entry of a special verdict by consent at any stage) is not engaged, and the judge must comply with the full requirements of s 133 of the Criminal Procedure Act, including detailed exposition of the law, facts, and reasoning.

  • A substance use disorder in the accused's history did not defeat the mental health impairment defence where the expert evidence established that the impairment arose from an underlying mental health condition, not solely from the temporary effects of substance ingestion.

  • Bare recitation of legal principles and factual findings does not satisfy s 133(2) of the Criminal Procedure Act: the judge's reasoning must expose the process linking the findings of fact to the applicable principles and to the ultimate verdict, and must engage with the arguments advanced by counsel.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 29, 30, 31
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Evidence Act 1995 (NSW), s 131
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases
- R v Tonga [2021] NSWSC 1064
- R v Siemek (No 1) [2021] NSWSC 1292
- Fleming v The Queen (1988) 197 CLR 250
- Spiteri-Ahern v R [2022] NSWCCA 56
- AK v Western Australia (2018) 232 CLR 438
- Carter v R [2019] NSWCCA 11
- Da-Pra v R; R v Da-Pra [2014] NSWCCA 211
- Hawkins v The Queen (1994) 174 CLR 500
- Lucas v The Queen (1970) 120 CLR 171
- R v Hall (1988) 36 A Crim R 368
- R v Jenkins (1963) 64 SR (NSW) 20
- R v Klamo (2008) 18 VR 644
- R v Minnani (2005) 63 NSWLR 490
- Tumanako v R (1992) 64 A Crim R 149