Citation: R v Clarke [2023] NSWSC 1360
Court: Supreme Court of New South Wales
Date: 10 November 2023
Judge(s): Rothman J
Background
The accused faced two charges of murder arising from killings that occurred in late 2021. The first victim was killed at his home in Chittaway Bay on 2 November 2021, beaten repeatedly with a baseball bat. The second victim was killed on 23 November 2021, while both the accused and the deceased were on remand at the Metropolitan Remand and Reception Centre (MRRC) in Silverwater.
The accused pleaded not guilty to both charges on the basis that he was not criminally responsible by reason of mental or cognitive impairment. He had a documented psychiatric history including bipolar disorder, past psychotic episodes, and a period of several years without antipsychotic medication prior to the offences. Forensic psychiatric evidence indicated he was in an acute psychotic state at the time of both killings, holding delusional beliefs about the first victim.
The Crown and the legally-represented accused reached agreement on the facts and the psychiatric evidence. Victim Impact Statements were presented to the court and, on Rothman J's account, brought home powerfully the grief and lack of closure experienced by the victims' families.
Legal Issues
- Whether the acts constituting each murder charge were proved to the requisite standard
- Whether the accused was not criminally responsible for those acts by reason of mental or cognitive impairment, under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- What orders were appropriate following the entry of a special verdict under that Act
Decision
Rothman J entered a special verdict in relation to each charge pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The verdict recorded that the acts constituting each offence were proved, but that the accused was not criminally responsible for his conduct.
The psychiatric evidence before the court was compelling and uncontested. Multiple forensic psychiatrists assessed the accused and concluded that at the time of each killing he was suffering from a serious mental illness. He had not taken antipsychotic medication for several years, had been drinking heavily, and held psychotic delusions. The evidence supported the conclusion that he did not appreciate the nature and quality of his acts, or did not know they were wrong, within the meaning of the statutory defence.
Rothman J observed that the outcomes under the mental health forensic provisions differ materially from an ordinary criminal conviction. The accused is not sentenced to a fixed term of imprisonment. Instead, he is detained until the Mental Health Review Tribunal is satisfied that his release would not seriously endanger public safety. This can result in a longer period of custody than a fixed sentence would produce.
The judgment also noted the particular tragedy inherent in cases of this kind: the mental illness that drove the killings, while explaining the absence of criminal responsibility, also denies the victims' families the conventional measure of accountability that a criminal conviction provides.
Orders Made
- A special verdict entered on each of the two murder charges, pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW): the acts were proved but the accused was not criminally responsible
- The accused 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 ss 33 and 34 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 within 7 days
- The Registrar directed to notify the Mental Health Review Tribunal of the verdict and orders within 7 days
- The Registrar directed to provide the Mental Health Review Tribunal with copies of the orders, reasons for judgment, and exhibits within 7 days
- The Registrar directed to notify Justice Health of the verdict and orders, and provide copies of the reasons and exhibits, within 7 days
- Copies of the Victim Impact Statements to be provided to the Mental Health Review Tribunal pursuant to s 30N(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) within 7 days
Key Takeaways
- Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a special verdict records that the acts constituting the offence are proved but that the accused is not criminally responsible, without resulting in a conviction or fixed sentence.
- Where a special verdict is entered, the accused is referred to the Mental Health Review Tribunal and detained until the Tribunal is satisfied that public safety would not be seriously endangered by release, a standard that may produce a longer period of custody than a conventional sentence.
- Forensic psychiatric evidence went unchallenged here, and the Crown and defence agreed on the facts. Rothman J noted this as a proper basis for the special verdict without a contested hearing.
- Detention following a special verdict is subject to ongoing Tribunal review, initially as soon as practicable after referral and then at six-monthly intervals, with any future release capable of being conditioned and potentially revoked if the accused's mental state deteriorates.
- Victim Impact Statements are received and considered by the Supreme Court in special verdict proceedings, and are to be forwarded to the Mental Health Review Tribunal pursuant to s 30N(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Legislation and Cases Referenced
Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 31, 33, 34
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 30L, 30N(4)
Cases cited: No cases were cited in the judgment.