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Supreme Court 1 May 2023

R v Lambros

[2023] NSWSC 462

Homicide
CRIMINAL LAW MURDER STABBING SPECIAL VERDICT MENTAL HEALTH IMPAIRMENT EVIDENTIARY HEARING

Citation: R v Lambros [2023] NSWSC 462
Court: Supreme Court of New South Wales
Date: 1 May 2023
Judge: Hamill J

Background

The accused was charged with the murder of his friend, who died following a stabbing at Marrickville on 13 August 2021. The two men had used drugs together on occasion. The deceased was 55 years old and was undergoing chemotherapy for lung cancer at the time of his death.

Approximately one month before the killing, the two men took heroin together. After that occasion, the accused developed an entrenched delusional belief that the deceased had given him adulterated drugs in an attempt to poison and kill him. This belief was false. Over the following weeks, the accused made repeated complaints of physical symptoms to his GP, wrote letters to a friend, and kept diary entries in which he described feeling he was dying and expressed a desire for revenge against the deceased.

The accused elected a judge-alone trial and pleaded not guilty on the ground of mental health impairment. He conceded that the prosecution could establish the physical elements of murder, but relied on the defence that, due to mental health impairment, he did not know his actions were wrong.

  • Whether the evidence established, on the balance of probabilities, the defence of mental health impairment under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
  • Whether the Court could and should enter a special verdict of "act proven but not criminally responsible" under s 31 of that Act, before the trial formally commenced, given that both parties agreed the defence was established
  • What consequential detention and notification orders should follow the entry of a special verdict
  • What privacy protections should apply to the victim impact statement

Decision

Both the accused's forensic psychiatrist, Dr Andrew Ellis, and the prosecution's forensic psychiatrist, Dr Adam Martin, reached substantially the same conclusions: the accused suffered from a mental health impairment at the time of the killing and did not know his actions were wrong. Their joint opinions provided the evidentiary foundation for the proceedings.

Hamill J conducted what prior authorities have termed an "evidentiary inquiry" under s 31 of the Act. That provision allows a court to enter a special verdict at any time, including before a trial commences, where both parties agree the proposed evidence establishes the defence, the accused is legally represented, and the court is itself satisfied on the evidence that the defence is made out. The section was introduced to avoid the cost and length of a full criminal trial where the parties are in agreement.

The court was satisfied that all three requirements of s 31 were met. The accused was represented by two experienced Australian legal practitioners, both parties agreed the defence was established, and the evidence on balance supported that conclusion. His Honour noted that the procedure had been considered in several prior Supreme Court and District Court decisions, confirming its application in this procedural context.

Having entered the special verdict, the court turned to consequential orders under ss 33 and 34 of the Act, which require detention pending determination by the Mental Health Review Tribunal. The court also made orders protecting the contents of the victim impact statement from publication, while ensuring it would accompany the material forwarded to the Tribunal.

Orders Made

  • A special verdict entered under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW): the act is proven but the defendant is not criminally responsible due to mental health impairment.
  • The defendant to be detained in a correctional facility or such other place as determined by the Mental Health Review Tribunal, pursuant to ss 33 and 34 of the Act, until released by due process of law.
  • The Registrar to notify the Minister for Health, the Mental Health Review Tribunal, and Justice Health of the verdict and orders within 7 days, and to provide each with a copy of the judgment, orders, and exhibits.
  • No publication of the victim impact statement (Exhibit B); it is to be sealed and not released without a judicial order, after the parties have had an opportunity to be heard.
  • The victim impact statement to accompany exhibits forwarded to the Mental Health Review Tribunal, but not to be sent to Justice Health.

Key Takeaways

  • Section 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) permits a court to enter a special verdict of "act proven but not criminally responsible" before a trial commences, provided both parties agree, the accused is legally represented, and the court is independently satisfied the defence is established on the evidence.
  • The statutory procedure was confirmed as applicable in three distinct procedural situations: where a trial has already commenced, where no trial date has been set, and where a trial date has been set but proceedings are yet to begin.
  • Under s 31, the court does not simply rubber-stamp the parties' agreement. The court must itself be satisfied, after considering the evidence, that the defence of mental health impairment is established on the balance of probabilities.
  • Where a special verdict is entered, ss 33 and 34 of the Act require detention of the accused in a correctional facility or such place as determined by the Mental Health Review Tribunal, pending review by that body.
  • Privacy orders can be made under s 30N of the Crimes (Sentencing Procedure) Act 1999 (NSW) to restrict publication of a victim impact statement, while still ensuring the statement is transmitted to the Mental Health Review Tribunal as required by s 30N(4).

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 31, 33, 34, 78(c), Pt 5
- Criminal Procedure Act 1986 (NSW), ss 132(2), 141, 143
- Crimes Act 1900 (NSW), s 23A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 30L, 30N

Cases
- R v Gough [2021] NSWDC 180
- R v Tonga [2021] NSWSC 1064
- R v Siemek (No 1) [2021] NSWSC 1292
- R v Jackson [2021] NSWSC 1404
- R v Lailna [2023] NSWSC 48