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Supreme Court 2 May 2023

R v Mavin

[2023] NSWSC 455

Assault & violenceHomicideTheft & property

Citation: R v Mavin [2023] NSWSC 455
Court: Supreme Court of New South Wales
Date: 2 May 2023
Judge: Campbell J

Background

The accused faced two charges arising from events on 12 December 2020 at Shortland, New South Wales. The first count alleged aggravated attempted armed robbery: the accused, armed with an improvised incendiary device, attempted to rob a 7-Eleven convenience store of cigarettes and money. The second count alleged murder, arising from a fatal knife stabbing of a man following an altercation.

The accused's diagnosis of schizophrenia was not in dispute. The trial proceeded before Campbell J alone, without a jury, pursuant to an order made under s 132 of the Criminal Procedure Act 1986 (NSW).

Both parties accepted that the accused committed the physical acts underpinning each charge. The central contest was whether he had established the mental health impairment defence under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), entitling him to a special verdict of act proven but not criminally responsible.

  • Whether the accused established the mental health impairment defence under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) in respect of each count
  • Whether, at the time of the attempted armed robbery, the accused's schizophrenia meant he could not reason with a moderate degree of sense and composure about whether the act was wrong
  • Whether the fatal stabbing of the deceased was a product of the accused's psychosis, or whether it could be separated from his mental illness such that the defence was unavailable for the murder count

Decision

The defence of mental health impairment under s 28 has two limbs: the accused either did not know the nature and quality of the act, or did not know the act was wrong. Only the second limb was in issue. Campbell J applied the well-established principle, drawn from Dixon J's reasons in The King v Porter (1933) 55 CLR 182 and now embedded in s 28(1)(b), that a person does not "know" the act was wrong if, through a mental disorder, they could not reason about its wrongfulness with a moderate degree of sense and composure by the everyday standards of reasonable people. The presumption of sanity meant the accused bore the burden of establishing the defence on the balance of probabilities.

In relation to the attempted armed robbery, the court was satisfied that the accused's bizarre and disorganised conduct before, during, and after the robbery was attributable to his active psychosis. His behaviour could not be explained as the deliberate execution of a plan by a person reasoning with even a moderate degree of sense and composure about the morality of what he was doing.

On the murder count, the court rejected any suggestion that the stabbing could be cleanly separated from the accused's schizophrenic symptoms. Campbell J held that the fatal attack on the deceased was a product of the accused's psychosis, not an act of violence that arose independently of his mental illness. The totality of the circumstances, viewed as a whole, supported this conclusion.

The court returned special verdicts on both counts: the acts were proven, but the accused was not criminally responsible. Campbell J expressly noted that these verdicts did not entitle the accused to re-enter the community, finding that the accused, at least when unmedicated, posed a danger to himself and others.

Orders Made

  • Count 1: Special verdict that the act of attempting to rob the 7-Eleven at Sandgate Road, Shortland is proven, but the accused is not criminally responsible
  • Count 2: Special verdict that the act of fatally stabbing the deceased is proven, but the accused is not criminally responsible
  • The accused is referred to the Mental Health Review Tribunal under s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
  • The accused is to be detained at such place and in such manner as the Mental Health Review Tribunal determines, until released by due process of law (under s 33)
  • A copy of the judgment and the evidence of the expert psychiatrists to be forwarded to the Registrar of the Mental Health Review Tribunal
  • Media organisations who duly applied may have access to the recording of the accused's record of interview

Key Takeaways

  • Under s 28(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the mental health impairment defence turns on whether a defendant, due to mental illness, could not reason with a moderate degree of sense and composure about the moral wrongfulness of the act. The statutory test incorporates and entrenches the common law standard articulated in Porter.

  • Where a defendant's diagnosis is undisputed, the court must still carefully assess whether the specific acts charged were a product of the mental illness, rather than conduct capable of being separated from it. A blanket diagnosis does not automatically establish the defence; the causal connection between the mental impairment and each particular act requires examination.

  • A special verdict of "act proven but not criminally responsible" carries distinct legal consequences from a verdict of not guilty. The accused is not free to re-enter the community following such a verdict and becomes subject to ongoing detention and review by the Mental Health Review Tribunal.

  • The Mental Health Review Tribunal operates under strict statutory criteria before it can order release, requiring independent expert evidence that the accused's release would not seriously endanger public or personal safety. The Tribunal reviews the accused's case at least every six months.

  • In a judge-alone criminal trial, s 133 of the Criminal Procedure Act 1986 (NSW) requires the judge to state the principles of law relied on, make findings of fact, and take into account any warnings that would ordinarily be given to a jury.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 30, 33, 34, 72, 78, 84
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 8, 10
- Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed)

Cases
- The King v Porter (1933) 55 CLR 182; [1933] HCA 1
- R v M'Naghten (1843) 8 ER 718
- Stapleton v R (1952) 86 CLR 358
- Carter v R [2019] NSWCCA 11
- R v Rodrigues [2010] NSWSC 198
- R v Jenkins (1963) 64 SR (NSW) 20
- Alford v Magee (1952) 85 CLR 437
- Hawkins v The Queen (1994) 179 CLR 500
- Jones v Dunkel (1959) 101 CLR 298