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Supreme Court 17 August 2022

R v EC

[2022] NSWSC 1088

Homicide

Citation: R v EC [2022] NSWSC 1088
Court: Supreme Court of New South Wales
Date: 17 August 2022
Judge: Cavanagh J

Background

The accused was 17 years and 7 months old when, on the night of 15 August 2020, he stabbed and struck his 64-year-old father with a knife and machete at a rural property in Smiths Creek in northern New South Wales, causing his father's death. The accused then set fire to the house. He was charged with murder and intentionally destroying property by fire.

The accused had grown up in a religious commune, had an isolated lifestyle at the time of the offending, had left school before completing Year 11, and had no prior mental health diagnosis. He had been smoking cannabis heavily from the age of 16, with ready access to the drug grown on the property. He had not been working or studying, and described having no friends.

The accused did not dispute the acts themselves. The sole issue at trial was whether he was entitled to a special verdict of act proven but not criminally responsible, on the basis that he had established the defence of mental health impairment under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act).

  • Whether the accused established the defence of mental health impairment under s 28 of the MHCIFP Act at the time of the offending.
  • Whether the threshold for a special verdict under s 30 of the MHCIFP Act was met, such that the acts were proven but the accused was not criminally responsible.
  • Whether the accused's release would pose a serious risk to his own safety or the safety of any member of the public, for the purposes of the orders available under s 33 of the MHCIFP Act.

Decision

This was an "all issues" judge-alone trial, not a special hearing under s 31 of the MHCIFP Act. The Crown retained the burden of proving all elements of the offences beyond reasonable doubt, and the accused bore no onus. Cavanagh J noted that the Crown ultimately accepted there was evidence capable of supporting the mental health impairment defence, while leaving the determination to the Court.

Cavanagh J was satisfied that the accused had established the defence of mental health impairment under s 28 of the MHCIFP Act. The agreed facts included expert psychiatric reports from Dr Nielssen and Dr Eagle, and there was substantial agreement between the parties on the factual matters underpinning the defence. The precise nature of the mental health impairment is not set out in the available portions of the judgment, but the Court's conclusion was that the defence was made out.

Because the defence was established, the Court entered the special verdict of act proven but not criminally responsible pursuant to s 30 of the MHCIFP Act on the murder charge. The arson charge and related charges were dealt with separately.

On the question of disposal, Cavanagh J was unable to be satisfied, on the balance of probabilities, that releasing the accused would not seriously endanger his own safety or the safety of members of the public. Accordingly, the Court ordered his detention at the Austinmer Adolescence Unit in the Forensic Hospital, with referral to the Mental Health Review Tribunal.

Orders Made

  • Special verdict of act proven but not criminally responsible entered pursuant to s 30 of the MHCIFP Act.
  • The accused ordered to be detained at the Austinmer Adolescence Unit in the Forensic Hospital, or such other place as determined from time to time by the Mental Health Review Tribunal, until release by due process of law.
  • The accused referred to the Mental Health Review Tribunal pursuant to s 34 of the MHCIFP Act.
  • The Registrar directed to notify the Mental Health Review Tribunal as soon as practicable and to provide the Tribunal with copies of the Court's reasons and the statement of agreed facts (including psychiatric reports).
  • Related charges referred to the Supreme Court under s 166 of the Criminal Procedure Act 1986 (NSW) ordered to be dismissed.

Key Takeaways

  • A judge-alone trial under the MHCIFP Act can proceed as an "all issues" trial in which the accused seeks a special verdict under s 30, without being constituted as a special hearing under s 31 of that Act.
  • Where the mental health impairment defence under s 28 is established, the court enters a special verdict of act proven but not criminally responsible rather than an acquittal, which triggers a distinct disposal regime under ss 33 and 34.
  • Under s 33 of the MHCIFP Act, the court must not order release unless it is satisfied on the balance of probabilities that the accused's release would not seriously endanger their safety or the safety of any member of the public. Here, that threshold was not met, resulting in a detention order.
  • The Crown bearing the burden of proof on all elements of the offence beyond reasonable doubt is preserved even where the accused is not contesting the acts but is seeking a special verdict on the basis of mental health impairment.
  • In the context of a serious children's indictable offence, s 17 of the Children (Criminal Proceedings) Act 1987 (NSW) required the accused to be dealt with according to law, meaning the standard adult criminal process applied rather than the Children's Court regime.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 30, 33, 34
- Children (Criminal Proceedings) Act 1987 (NSW), s 17
- Crimes Act 1900 (NSW), ss 18(1)(a), 81C(b), 195(1)(b)
- Criminal Procedure Act 1986 (NSW), s 166
- Mental Health Act 2007 (NSW)

Cases
- R v DB [2022] NSWCCA 87
- R v Hall (1988) 36 A Crim R 368
- R v Klamo [2008] VSCA 75
- R v Porter (1933) 55 CLR 182; [1933] HCA 1
- R v Siemek (No. 1) [2021] NSWSC 1292
- R v Tonga [2021] NSWSC 1064
- Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56