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Supreme Court 8 November 2023

R v Woodham (No 2)

[2023] NSWSC 1345

Homicide
CRIME MURDER DEFENCE OF MENTAL HEALTH IMPAIRMENT WHERE PARTIES AGREE DEFENCE AVAILABLE

Citation: R v Woodham (No 2) [2023] NSWSC 1345
Court: Supreme Court of New South Wales
Date: 8 November 2023
Judge: Weinstein J

Background

The accused was charged with the murder of a neighbour contrary to s 18(1)(a) of the Crimes Act 1900. The deceased lived across the road from the accused's father, and the two families had known each other since childhood. The accused had recently been released from prison and was staying temporarily at his father's home when the offence occurred in June 2021.

Prior to trial, Hamill J conducted a fitness hearing in August 2022 and found the accused unfit to be tried, with the possibility of becoming fit within 12 months. The matter was referred to the Mental Health Review Tribunal (MHRT). In January 2023, the MHRT determined that the accused would not become fit to be tried within the relevant 12-month period, which triggered the requirement for a special hearing.

At the special hearing, the accused entered a plea of not guilty by reason of mental health impairment. Both the Crown and defence counsel agreed that the evidence established the defence of mental health impairment under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act).

  • Whether the evidence established a defence of mental health impairment under ss 4 and 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 on the balance of probabilities
  • Whether a special verdict of act proven but not criminally responsible should be entered under s 31 of the Act
  • What consequential orders should be made following the special verdict

Decision

Weinstein J conducted a special hearing on 6 November 2023, emphasising that this was not a trial by judge alone in the conventional sense. The hearing was neither adversarial nor accusatorial; rather, it was an inquiry designed to allow the court to examine the agreed evidence and independently assess whether the defence had been made out on the balance of probabilities.

The court was satisfied, on the evidence placed before it, that the defence of mental health impairment was established under ss 4 and 28 of the Act. Accordingly, Weinstein J entered a special verdict that the act was proven but the accused was not criminally responsible due to mental health impairment. His Honour noted that, following such a verdict, the accused is held as a forensic patient under MHRT supervision and can only be released if the Tribunal is satisfied that his release would not seriously endanger public safety.

The judgment also records the ongoing review framework that applies to the accused. The MHRT is required to review his case as soon as practicable and at six-monthly intervals thereafter. Any future release may be subject to conditions, and deterioration in his mental condition or a breach of conditions could result in further detention.

Although Weinstein J noted that he was not strictly required to publish reasons in a special hearing (citing Fleming v R (1998) 197 CLR 250), he chose to do so in the interests of transparency and open justice.

Orders Made

  • A special verdict entered under s 31 of the Act that the act is proven but the accused is not criminally responsible due to mental health impairment
  • The accused to be detained in a correctional facility, or such other place as the MHRT may determine, until released by due process of law (s 33(1)(b) of the Act)
  • The accused referred to the Mental Health Review Tribunal pursuant to s 34 of the Act
  • The Registrar directed to notify the Minister for Health of the orders as soon as practicable
  • The Registrar directed to notify the MHRT and provide it with the court's reasons, transcript, exhibits (including expert reports), and victim impact statements
  • The Registrar directed to notify Justice Health and Forensic Mental Health Network and provide it with the court's reasons and expert reports

Key Takeaways

  • A special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 is not a trial by judge alone; it is a court-initiated inquiry in which the judge independently examines the evidence to determine whether the defence of mental health impairment is established on the balance of probabilities, even where both parties are agreed.
  • Where the MHRT determines that an accused who was found unfit to be tried will not become fit within 12 months of the original finding, the matter proceeds to a special hearing rather than a conventional trial.
  • Under ss 4 and 28 of the Act, the defence of mental health impairment must be established on the balance of probabilities; the court is not simply bound by a joint position of the parties but must itself be satisfied.
  • Following a special verdict of act proven but not criminally responsible, the accused is held as a forensic patient subject to MHRT oversight, with release only available where the Tribunal is satisfied that public safety will not be seriously endangered.
  • Consistent with Fleming v R (1998) 197 CLR 250, a court conducting a special hearing is not legally required to expose its full chain of reasoning linking facts and law, though Weinstein J elected to publish reasons in the interests of open justice.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 29, 31, 33, 34, 36, 47, 49, 78, 84, 109
- Criminal Procedure Act 1986 (NSW), s 133
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Fleming v R (1998) 197 CLR 250; [1998] HCA 68
- R v Eleter [2023] NSWSC 931
- R v Siemek (No 2) [2021] NSWSC 1293
- R v Woodham [2022] NSWSC 1154