Citation: R v Thompson (No 2) [2022] NSWSC 1045
Court: Supreme Court of New South Wales
Date: 5 August 2022
Judge(s): Walton J
Background
This decision is the second judgment in a judge-alone murder trial. The first judgment, delivered the same day, found that the accused had committed an act causing the death of another man but was not criminally responsible due to a mental health impairment. That finding was made under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act"), and a special verdict of "act proven but not criminally responsible" was returned.
The accused had a documented history of escalating mental illness, including a diagnosis of psychotic disorder in the nature of schizophrenia, ongoing treatment for that condition, and a substance use disorder. These circumstances formed the backdrop to the post-verdict proceedings addressed in this decision.
This second judgment addressed what orders the Supreme Court should make following the special verdict, and acknowledged the role of the deceased's family through the victim impact statement process.
Legal Issues
- What orders are appropriate under s 33(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) following a special verdict of act proven but not criminally responsible?
- Whether an order for unconditional release, a limiting term, or detention until release by due process of law was the appropriate disposition in this case.
- What referral obligations arise under s 34 of the Act following such a special verdict?
- What standing do victim family members have to provide victim impact statements in mental health impairment proceedings?
Decision
Walton J emphasised at the outset that the proceedings following a special verdict are not a sentencing exercise. The purpose of orders made under s 33 of the Act is the protection of the community and the welfare of the person who committed the relevant act, not punishment.
The Court was satisfied that the only appropriate order was detention under s 33(1)(b) of the Act, holding the accused in a correctional facility or such other place as the Mental Health Review Tribunal may determine, until released by due process of law. Counsel for the accused accepted this as the proper course. The accused's history of escalating mental illness, the nature and severity of his diagnoses, his ongoing treatment needs, and his substance use disorder all supported the conclusion that no lesser order was appropriate.
The Court also noted its obligation under s 34 of the Act to refer the accused to the Mental Health Review Tribunal. The Tribunal will review his case as soon as practicable and at six-monthly intervals thereafter. The accused will not be released unless and until the Tribunal is satisfied that no member of the public, nor the accused himself, would be seriously endangered by his release.
Walton J took care to explain the practical effect of the verdict and orders for the benefit of the community and the deceased's family. He acknowledged receipt of the victim impact statement from the deceased's brother under s 30L of the Crimes (Sentencing Procedure) Act 1999 (NSW), noting the significance of the 2018 legislative reform that first permitted victim impact statements to be placed before a court in mental health impairment proceedings. The Court extended condolences to the deceased's father, brother, and son.
Orders Made
- The accused is to be detained in a correctional facility, or at such other place as the Mental Health Review Tribunal may determine from time to time, until released by due process of law (s 33(1)(b) of the Act).
- The accused is referred to the Mental Health Review Tribunal (s 34 of the Act).
- The Registrar is to notify the Minister for Health and the Minister for Mental Health of the orders as soon as practicable.
- The Registrar is to notify the Mental Health Review Tribunal of the orders and provide it with the court's reasons, the trial transcript, exhibits, and the victim impact statement.
- The Registrar is to notify Justice Health and Forensic Mental Health Network of the verdict and orders, and provide it with the court's reasons, the expert reports of Dr Eagle and Dr Ellis (including the supplementary report of Dr Eagle), and the relevant portions of the trial transcript containing the concurrent expert oral evidence.
Key Takeaways
- Under s 33 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), orders following a special verdict of act proven but not criminally responsible are directed at community protection and the welfare of the accused, not punishment.
- A diagnosis of schizophrenia combined with a documented history of escalating mental illness and substance use disorder supported a finding that detention until release by due process of law was the only appropriate disposition under s 33(1)(b).
- Since 2018, victim family members have a statutory right to place a victim impact statement before the court in proceedings where a mental health impairment defence is made out, under s 30L of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- The Supreme Court confirmed that a mandatory referral to the Mental Health Review Tribunal follows any special verdict where unconditional release is not ordered, with the Tribunal required to conduct reviews as soon as practicable and at six-monthly intervals thereafter.
- Release as a forensic patient requires the Tribunal to be satisfied that neither the public nor the accused would be seriously endangered, and any future release may be made subject to conditions backed by powers of apprehension and further detention if breached or if the accused's condition deteriorates.
Legislation and Cases Referenced
Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 29, 30, 33, 34, 78, 84, 109
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 30L
Cases:
- R v Thompson (No 1) [2022] NSWSC 1044
- Attorney General of NSW v X (2013) 235 A Crim R 17; [2013] NSWSC 1392
- R v Siemek (No 2) [2021] NSWSC 1293