Citation: R v Fleming (Special Verdict) [2023] NSWSC 561
Court: Supreme Court of New South Wales
Date: 23 May 2023
Judge(s): Wilson J
Background
The accused faced an indictment containing twelve counts, including a charge of engaging in a terrorist act under the Commonwealth Criminal Code Act 1995, along with multiple firearms offences and two counts of kidnapping arising from events on 28 November 2021. In the fourth week of trial, the Crown conceded that the terrorism charge (count 1) could not be proved, and the jury returned a verdict of not guilty on that count. The jury was then discharged from further deliberations on the remaining counts.
With the sole federal offence resolved, state law governed the remaining charges. Both parties agreed that the evidence established a defence of mental health impairment under the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act), and that the matter should proceed under section 31 of that Act rather than continue as a part-heard jury trial.
The accused had a long-standing history of mental illness, with treatment documented since approximately 2018. He did not dispute that he had carried out the physical acts underlying counts 2 to 12. The central question was whether those acts attracted criminal responsibility, given the psychiatric evidence before the Court.
Legal Issues
- Whether the Crown could establish, beyond reasonable doubt, the physical elements (actus reus) of each of the remaining eleven offences (counts 2 to 12).
- Whether the accused had a "mental health impairment" within the meaning of section 4 of the MHCIFP Act at the time of the relevant acts.
- Whether that impairment meant that the accused did not know his acts were wrong, such that the defence under section 28 of the MHCIFP Act was established on the balance of probabilities.
- Whether the conditions in section 31 of the MHCIFP Act were satisfied, permitting the Court to enter a special verdict of "act proven but not criminally responsible" without continuing the jury trial.
Decision
Wilson J was satisfied beyond reasonable doubt that the accused committed the physical acts constituting each of the eleven remaining offences. The acts were established by compilation footage (exhibit B), other documentary evidence, and the testimony of witnesses including a civilian who had direct contact with the accused on the relevant day and a detective.
On the mental health impairment defence, the Court received unchallenged psychiatric evidence from two experienced forensic psychiatrists. Dr Adam Martin, briefed by the Crown and retained to assess the accused, concluded that the accused suffered from schizophrenia or a schizo-affective disorder and was subject to that impairment on 28 November 2021, to the extent that he did not know his actions were morally wrong. Dr Antonio Simonelli reached the same conclusion. Neither opinion was challenged.
The psychiatric evidence was corroborated by lay evidence. The civilian witness Neil Hay, who spent approximately half an hour with the accused on the day in question, formed the view that the accused was "very clearly unbalanced." The Court reached the same impression from viewing recorded footage of a police interview conducted later that day. The accused's mother gave evidence describing his distressed state and his deterioration in the period leading up to the events.
All three requirements of section 31 were satisfied: the parties agreed the evidence established the defence, the accused was represented by both counsel and a solicitor, and the Court was independently satisfied that the defence was established. Wilson J entered a special verdict of act proven but not criminally responsible on counts 2 to 12. Her Honour also noted the existence of some tension between section 31 of the MHCIFP Act and section 133 of the Criminal Procedure Act 1986 (NSW), but proceeded to give written reasons in the ordinary course, affirming that transparency and open justice remain applicable even where the Court rather than a jury determines the special verdict.
Orders Made
No orders were made in this decision.
Key Takeaways
- A special verdict of "act proven but not criminally responsible" may be entered by the court without continuing a jury trial where both parties agree the evidence establishes a mental health impairment defence, the accused is legally represented, and the court is independently satisfied the defence is made out (section 31, MHCIFP Act).
- Under section 28 of the MHCIFP Act, the mental health impairment defence requires proof on the balance of probabilities that, at the time of the acts, the accused either did not know the nature and quality of the act, or could not reason with a moderate degree of sense and composure that the act was wrong as perceived by reasonable people.
- Psychiatric evidence from two forensic psychiatrists, one retained by the Crown and one by the defence, combined with corroborating lay evidence, was sufficient to satisfy the Court that the defence was established.
- Even where section 31 permits a court to proceed without a jury, Wilson J confirmed that a common law obligation to provide reasons remains, on the basis that transparency and open justice are not displaced by the special verdict procedure.
- The discharge of a jury mid-trial to allow a section 31 special verdict process may be the more efficient course where continuing with the jury would require additional time to resolve consequential evidentiary issues.
Legislation and Cases Referenced
Legislation:
- Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 30, 31
- Criminal Code Act 1995 (Cth), s 101.1(1)
- Criminal Procedure Act 1986 (NSW), s 133
Cases:
- R v Fleming [2023] NSWSC 560 (companion judgment setting out the relevant facts)
- No other cases cited in the judgment