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Supreme Court 7 February 2023

R v Lailna

[2023] NSWSC 48

Homicide
CRIME JUDGE ALONE TRIAL MURDER DEFENCE OF MENTAL HEALTH IMPAIRMENT SPECIAL VERDICT ENTERED

Citation: R v Lailna [2023] NSWSC 48
Court: Supreme Court of New South Wales
Date: 7 February 2023
Judge(s): Chen J

Background

The accused was charged with the murder of his wife at their home in Quakers Hill, NSW, on the evening of 20 May 2020. The Crown alleged that he fatally stabbed her on that night. The matter proceeded before the Supreme Court as a judge-alone hearing.

The accused's fitness to be tried was raised at an early stage, first in the Local Court and again when the matter came before the Supreme Court. In September 2021, Hamill J found the accused unfit to be tried and referred him to the Mental Health Review Tribunal. Following a series of reviews, the Tribunal determined in May 2022 that the accused had become fit to be tried.

Despite being found fit, both the Crown and the accused agreed that the evidence established a defence of mental health impairment arising from a schizophrenic disorder that the accused had at the time of the offence. The accused elected a judge-alone trial and pleaded not guilty, with the matter then proceeding under the special verdict provisions of the relevant legislation.

  • Whether the defence of mental health impairment was established on the evidence, such that the court could enter a special verdict under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
  • Whether all three preconditions in s 31 were satisfied: agreement between the parties, legal representation of the accused, and the court's own satisfaction that the defence was established.
  • Which legislative regime applied given that the alleged offence pre-dated the commencement of the 2020 Act.

Decision

Chen J was satisfied that all three preconditions under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) were met. Both the Crown and the accused agreed that the proposed evidence established a defence of mental health impairment. The accused was represented by an Australian legal practitioner throughout.

The court conducted what prior decisions have described as an "evidentiary enquiry" rather than a trial, considering a bundle of tendered material that included agreed facts, psychiatric reports, autopsy findings, witness statements, and an electronically recorded interview of the accused. Two consultant psychiatrists provided reports that informed the enquiry. The court was independently satisfied, having considered that evidence, that the defence of mental health impairment was established by reason of the accused's schizophrenic disorder at the time of the offence.

On the question of applicable legislation, Chen J confirmed, consistent with earlier Supreme Court authority, that the 2020 Act applied notwithstanding that the alleged offence occurred on 20 May 2020, before the Act commenced on 27 March 2021. This was common ground between the parties and aligned with a series of prior decisions of the Supreme Court.

Orders Made

  • A special verdict entered pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW): the act is proven but the accused is not criminally responsible.
  • The accused is to be detained in a correctional facility or at 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 Registrar to notify the Minister for Health of the orders within 7 days.
  • The Registrar to notify the Mental Health Review Tribunal of the verdict and orders within 7 days.
  • The Registrar to provide the Mental Health Review Tribunal with a copy of the judgment, orders, and exhibits within 7 days.
  • The Registrar to notify Justice Health of the verdict and orders and provide copies within 7 days.
  • A copy of the victim impact statement 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

  • A special verdict of "act proven but not criminally responsible" is available under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) at any point in proceedings, including before jury empanelment, where both parties agree the defence is established, the accused is legally represented, and the court independently forms its own satisfaction on the evidence.
  • The hearing under s 31 is not a trial in the conventional sense. Established Supreme Court authority describes it as an "evidentiary enquiry," a distinction Chen J reinforced by reference to R v Sands and R v Jackson.
  • Under the 2020 Act, a finding of unfitness does not necessarily end criminal proceedings. Where the Mental Health Review Tribunal subsequently determines that the accused has become fit, the matter may proceed, including under the special verdict pathway if the parties agree a mental health impairment defence is established.
  • The 2020 Act applies to proceedings even where the alleged offence pre-dates its commencement on 27 March 2021, consistent with a line of Supreme Court decisions including R v Tonga, R v Siemek (No.1), and R v Sands.
  • A finding that an accused was previously unfit to be tried does not preclude the court from later entering a special verdict once fitness has been restored and the statutory conditions under s 31 are satisfied.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 31, 33, 34, 36, 38, 39, 40-49, 72, 78, 80
- Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed)
- Criminal Procedure Act 1986 (NSW), s 132
- Evidence Act 1995 (NSW), s 191
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 30N(4)

Cases:
- R v Lailna [2021] NSWSC 1205
- R v Jackson [2021] NSWSC 1404
- R v Sands [2021] NSWSC 1325
- R v Siemek (No.1) [2021] NSWSC 1292
- R v Tonga [2021] NSWSC 1064