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District Court 13 July 2023

R v Morgan

[2023] NSWDC 253

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW MENTAL HEALTH SPECIAL HEARING AGREEMENT AS TO APPROPRIATE VERDICTS APPROPRIATE CONSEQUENTIAL ORDERS

Citation: R v Morgan [2023] NSWDC 253
Court: District Court of New South Wales
Date: 13 July 2023
Judge: Abadee DCJ

Background

The defendant faced ten charges arising from events on 11 June 2021, involving four separate complainants across multiple locations in Sydney. The charges ranged from stealing clothing from a retail store, to threatening to use an offensive weapon, to intimidation, property damage, and assaulting police officers. The most serious charge alleged that the defendant wounded a police officer with intent to murder.

In November 2022, Judge Gartelmann SC determined that the defendant was unfit to be tried. As a result, the matter proceeded before Abadee DCJ as a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The parties agreed on the relevant facts, which meant the Crown did not need to call witnesses, and the hearing proceeded on jointly tendered documentary evidence.

  • What verdicts were available to the court at a special hearing where the defendant had been found unfit to be tried?
  • Whether the prosecution had established, on the limited evidence available, that the defendant committed each of the charged offences.
  • Whether the mental health impairment defence was established on the balance of probabilities in respect of each charge.
  • What consequential orders were appropriate following the entry of special verdicts.

Decision

The court applied the framework established by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which provides four possible outcomes at a special hearing: not guilty; a special verdict of act proven but not criminally responsible; that on the limited evidence available the defendant committed the offence charged; or that on the limited evidence available the defendant committed an available alternative offence.

Because the parties had agreed on the facts, the court's central task was to determine whether the mental health impairment defence was made out on the probabilities. Abadee DCJ applied the relevant principles of law, including the burden and standard of proof, the need to consider each count separately, and the Markuleski direction concerning how findings on one count may affect consideration of other counts involving the same complainant. On counts 8 to 10, the court noted that charges 9 and 10 were alternatives to charge 8, and that under section 32 of the Act, a special verdict on the primary offence does not automatically require a special verdict on available alternative offences.

The court was satisfied, in respect of all eight substantive charges (counts 1 to 8), that the acts were proven but that the defendant was not criminally responsible by reason of mental health impairment. Counts 9 and 10, being alternatives to count 8, did not require separate verdicts once the special verdict was entered on count 8.

Orders Made

  • Special verdict of act proven but not criminally responsible entered on each of counts 1 through 8.
  • The defendant is to be detained at a correctional centre, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law.
  • The defendant is referred to the Mental Health Review Tribunal.
  • The Registrar is to notify the Minister for Health, the Tribunal, and Justice Health of the orders within seven days.
  • The Registrar is to provide the Tribunal and Justice Health with copies of the reasons for verdict and relevant psychiatric reports.

Key Takeaways

  • At a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the available verdicts are limited to four categories set out in section 59(1): not guilty; act proven but not criminally responsible; the defendant committed the offence charged on the limited evidence available; or the defendant committed an available alternative offence on the limited evidence available.
  • Where parties agree on the facts at a special hearing, the court's primary analytical task shifts to determining whether the mental health impairment defence is established on the balance of probabilities, rather than resolving contested factual disputes.
  • Under section 32 of the Act, entering a special verdict of act proven but not criminally responsible on a primary charge does not trigger an obligation to also enter special verdicts on offences available as alternatives to that primary charge.
  • The District Court is required to apply a Markuleski direction even in special hearings, meaning it must consider how a finding on one count involving a particular complainant affects the assessment of other counts involving the same complainant.
  • Agreement between the parties on facts does not alter the court's obligation to consider each count separately, to apply the criminal standard of proof on the Crown's case, and to apply the correct legal principles before reaching each verdict.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 31, 32, 54, 56, 59
- Crimes Act 1900 (NSW), ss 27, 33, 33B, 60, 117, 195
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13

Cases
- R v Markuleski (2001) 52 NSWLR 82
- R v Shepherd [2003] NSWCCA 351
- Vallance v The Queen (1961) 108 CLR 56
- R v Hatch [2006] NSWCCA 330
- R v Devine (1982) 8 A Crim R 45