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Supreme Court 21 June 2022

R v Jawid

[2022] NSWSC 788

Homicide
CRIMINAL LAW O FFENCES M URDER T RIAL — J UDGE ALONE

Citation: R v Jawid [2022] NSWSC 788
Court: Supreme Court of New South Wales
Date: 21 June 2022
Judge: Davies J

Background

The accused stood trial for the murder of a man he had known since childhood in Afghanistan, who had later employed him as a security guard and then assistant building manager at a Sydney apartment complex. The two men had a longstanding and fraught relationship. In the period leading up to the killing, the accused sent increasingly erratic messages to the deceased, and the deceased had separately expressed concern to friends and family about the accused's behaviour and perceived threats against him.

On 16 July 2020, the accused drove to the apartment complex dressed in a suit and tie, having purchased two chef's knives the previous day and withdrawn a significant sum of cash. He stabbed the deceased multiple times, causing his death. The stabbing was not in dispute.

The accused pleaded not guilty to murder but guilty to manslaughter on the basis of substantial mental health impairment under s 23A of the Crimes Act 1900 (NSW). In an unusual reversal of the typical positions, it was the Crown that argued the accused should receive a special verdict of not criminally responsible by reason of mental health impairment under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the MHCIFP Act"). The trial proceeded before a judge alone, by consent, on agreed facts supplemented by concurrent psychiatric evidence.

  • Whether the Crown (as opposed to only the accused) can raise the defence of mental health impairment under s 28 of the MHCIFP Act
  • If the Crown can raise that defence, what standard of proof applies
  • Whether the accused's mental health impairment satisfied the statutory test such that he did not know that his acts were wrong at the time of the offence
  • Whether the appropriate outcome was a special verdict of act proven but not criminally responsible, or a conviction for manslaughter on the basis of substantial impairment under s 23A of the Crimes Act 1900

Decision

Davies J resolved the preliminary question in the Crown's favour, finding that the Crown can raise the mental health impairment defence where the accused has already put mental illness in issue. The standard of proof on that question, whether raised by the Crown or the accused, is the balance of probabilities rather than beyond reasonable doubt.

Both forensic psychiatrists, one engaged by the Crown and one by the defence, agreed that the accused suffered from a psychotic disorder and an anxiety disorder at the time of the offence. They also agreed that, as a result of a systematised persecutory delusional belief about the deceased, the accused could not reason with a moderate degree of sense and composure about whether his acts were wrong as perceived by reasonable people. That agreement on the central factual question significantly narrowed the contest at trial.

His Honour accepted the psychiatric evidence and was satisfied on the balance of probabilities that the accused had a mental health impairment at the time of the offence, and that this impairment had the effect that he did not know his acts were wrong. On that basis, the court did not need to determine whether the accused had the requisite intention for murder.

Davies J further found that he was not satisfied, on the balance of probabilities, that the accused's release would not seriously endanger the safety of the accused or any member of the public. Accordingly, the court returned a special verdict of act proven but not criminally responsible, and ordered the accused's detention with referral to the Mental Health Review Tribunal.

Orders Made

  • A special verdict of act proven but not criminally responsible was returned.
  • The accused was ordered to be detained pursuant to s 33 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) in an appropriate correctional centre, or such facility as the Mental Health Review Tribunal may determine, until released by due process of law.
  • The accused was referred to the Mental Health Review Tribunal.

Key Takeaways

  • Under the MHCIFP Act, the Crown may raise the mental health impairment defence in s 28 where the accused has already put mental illness in issue at trial, and is not confined to arguing only for a conviction.
  • The standard of proof for the mental health impairment defence is the balance of probabilities, regardless of whether it is raised by the accused or the Crown.
  • Where both the Crown's and the defence's forensic psychiatrists agree that the accused did not know his acts were wrong by reason of a mental health impairment, the court may return a special verdict even over the accused's objection.
  • A special verdict of act proven but not criminally responsible does not result in unconditional freedom. The MHCIFP Act provides for ongoing detention and supervision through the Mental Health Review Tribunal, and the accused's release depends on due process under that regime.
  • Davies J expressly noted that the consequences of a special verdict must not influence the court's assessment of criminal responsibility, consistent with established principle.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 29, 30, 33
- Crimes Act 1900 (NSW), ss 4C, 23A
- Criminal Procedure Act 1986 (NSW), s 132
- Evidence Act 1995 (NSW), ss 141, 191
- Criminal Appeal Act 1912 (NSW), s 5(2)
- Interpretation Act 1987 (NSW), s 35

Cases:
- Hawkins v The Queen (1994) 179 CLR 500
- The Queen v Falconer (1990) 171 CLR 30
- R v Ayoub [1984] 2 NSWLR 511
- R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226
- R v Damic [1982] 2 NSWLR 750
- R v S [1979] 2 NSWLR 1
- R v Brewer (No 2) [2015] NSWSC 1547
- R v Davidson (No 2) [2019] NSWSC 2011
- R v Eyuboglu (No 2) [2019] NSWSC 285
- R v Waszczuk [2012] NSWSC 1080
- R v Jennings [2005] NSWSC 789
- R v Issa (Unrep., Supreme Court of NSW, Sperling J, 16 October 1995)
- R v Cottle [1958] NZLR 999
- R v Joyce [1970] SASR 184
- R v Meddings [1966] VR 306
- R v Foy (1922) 39 WN (NSW) 21