Citation: R v Hotoran [2023] NSWSC 1249
Court: Supreme Court of New South Wales
Date: 20 October 2023
Judge(s): Wilson J
Background
The accused was charged with six offences arising from a fire he deliberately lit in the early hours of 15 March 2022 at a rooming house in Newtown. Three residents died in the fire. A fourth suffered catastrophic injuries, including severe burns, spinal and pelvic fractures, and two episodes of cardiac arrest. A fifth was blown from the building by the force of an explosion and suffered a fractured rib.
The accused had been living at the premises since December 2021. By March 2022, he was experiencing auditory hallucinations, hearing voices from inside his head and from the television, instructing him to burn the building down. Over several days, he made three trips to a nearby petrol station and stockpiled approximately 30 litres of petrol before setting the fire. He later attended a police station and told officers he had started the fire.
Both the Crown and the accused agreed that the evidence established the accused was suffering from a mental health impairment at the time of the offending. On that agreed basis, proceedings were conducted under section 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), allowing the Court to enter a special verdict without empanelling a jury.
Legal Issues
- Whether the accused was suffering from a mental health impairment within the meaning of section 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 at the time of the offending
- Whether that impairment meant the accused did not know the nature and quality of his acts, or did not know that his acts were wrong, within the meaning of section 28 of that Act
- Whether the Court could enter a special verdict of "act proven but not criminally responsible" on all six counts under section 31, given the agreement between the Crown and the accused
Decision
Psychiatric evidence established that the accused suffered from chronic schizophrenia or schizoaffective disorder, chronic psychotic illnesses characterised by auditory hallucinations and serious mood disturbance. Although the accused had not appeared obviously unwell to those around him at the time of the offending, expert evidence confirmed his presentation did not reflect his actual mental state, which was highly likely to have been psychotic.
Wilson J acknowledged that the facts disclosed significant planning: the accused had made three separate petrol purchases over several days and stored the fuel before igniting it. However, no motive for the offending was identified beyond the commands of the voices he was experiencing. The Court accepted that the accused's psychotic state meant he did not know the nature and quality of his acts, and did not know that his acts were wrong.
The Court was satisfied on the balance of probabilities that the defence under section 28 was made out in relation to all six counts. Applying section 31, the Court entered a special verdict on each count: the acts were proven, but the accused was not criminally responsible for them. Consequential orders were then made for the accused's detention and for notification of relevant authorities.
Orders Made
- The accused is to be detained in a correctional facility, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law (pursuant to section 33(1)(b) of the Act)
- The Registrar is directed to notify the Minister for Health of the orders within seven days
- The Registrar is directed to notify the Mental Health Review Tribunal of the verdicts and orders within seven days, and to provide copies of the judgment, orders, and exhibits
- The Registrar is directed to notify Justice Health of the verdict and orders within seven days, and to provide copies of the judgment, orders, and exhibits
- The Registrar is directed to provide family victim impact statements to the Mental Health Review Tribunal within seven days (pursuant to section 30N of the Crimes (Sentencing Procedure) Act 1999)
Key Takeaways
- Under section 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, a court may enter a special verdict of "act proven but not criminally responsible" at any stage of proceedings, including before a jury is empanelled, where the Crown and the accused both agree that the evidence supports a finding of mental health impairment.
- The defence under section 28 requires the court to be satisfied on the balance of probabilities that the accused, at the time of the relevant acts, either did not know the nature and quality of those acts or could not reason with a moderate degree of sense and composure about whether the acts were wrong.
- Evidence of planning and deliberate conduct does not necessarily defeat the section 28 defence. The Supreme Court was satisfied the defence applied even though the accused had made multiple petrol purchases over several days before lighting the fire.
- A psychotic presentation that is not immediately apparent to observers, including to police officers who interacted with the accused shortly after the events, does not preclude a finding of mental health impairment where expert forensic psychiatric evidence establishes the underlying condition.
- Following a special verdict, the court's consequential powers include ordering detention under section 33(1)(b) of the Act, with ongoing oversight passing to the Mental Health Review Tribunal.
Legislation and Cases Referenced
Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), sections 4, 28, 31, 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 30N
- Evidence Act 1995 (NSW), section 191
Cases cited: No cases were cited in the judgment.