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Court of Criminal Appeal 12 April 2024

Miller v R

[2024] NSWCCA 51

Homicide

Citation: Miller v R [2024] NSWCCA 51
Court: NSW Court of Criminal Appeal
Date: 12 April 2024
Judges: Bell CJ; Harrison CJ at CL and Sweeney J

Background

The applicant was convicted of murder in June 2022 following a jury trial before Cavanagh J. It was not disputed at trial that the applicant had killed his girlfriend by strangulation while experiencing a psychotic episode, during which he held the delusional belief that she was a demon. The central issue at trial was whether a defence of mental health impairment had been established, which would have relieved him of criminal responsibility.

At trial, the Crown's psychiatrist, Professor Greenberg, attributed the psychotic episode to drug-induced psychosis following the applicant's admitted use of LSD and cannabis some eleven days before the killing. The defence psychiatrist, Dr Nielssen, suspected schizophrenia but could not formally diagnose it at that time, as psychiatric convention required symptoms to persist for six months in the absence of drug use. Both experts agreed that a schizophrenia diagnosis could be made if symptoms persisted.

The jury rejected the mental health impairment defence and returned a verdict of guilty. The applicant was sentenced to 20 years imprisonment with a non-parole period of 13 years. He subsequently sought leave to appeal on the basis of fresh evidence: a formal diagnosis of schizophrenia made after the trial.

  • Whether fresh evidence of a post-trial schizophrenia diagnosis gave rise to a miscarriage of justice warranting the conviction being quashed.
  • Whether the Court of Criminal Appeal should enter a special verdict of "act proven but not criminally responsible" under s 7(4) of the Criminal Appeal Act 1912 (NSW), in place of the murder conviction.

Decision

All three psychiatrists who provided evidence in the appeal proceedings, including the Crown's own expert, Dr Eagle, ultimately diagnosed the applicant with schizophrenia. Dr Rae, his treating psychiatrist, diagnosed paranoid schizophrenia based on the recurrence and persistence of psychotic symptoms in custody in the absence of drug use. Dr Nielssen confirmed his original view that the applicant likely suffered an initial schizophrenic episode at the time of the killing. Dr Eagle, in a detailed review of all available material, concluded that the applicant had been in an acute and prolonged psychotic episode commencing before the offending.

Dr Eagle further opined that the applicant had a mental health impairment at the time of the killing and, because of that impairment, did not know his actions were wrong. Her view was that he acted in response to the delusion that the deceased was a demon. The post-trial evidence was accepted as "fresh evidence" within the meaning established in R v Abou-Chabake, in that it was not available to the applicant at trial, actually or constructively.

The Crown conceded it was open to the Court to uphold the conviction appeal grounds and make the orders sought. The Court accepted that concession and found a miscarriage of justice had occurred. Given that conclusion, the Court did not need to address the third ground of appeal, which concerned the trial judge's construction of a provision of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), nor did it address the sentence appeal.

The Court entered a special verdict of act proven but not criminally responsible on the murder charge. The Court also formally acknowledged the profound and permanent loss suffered by the victim's family, whose victim impact statements were read during the proceedings.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal against conviction allowed.
  • Conviction for murder and the sentence quashed.
  • Special verdict entered: act proven but not criminally responsible on the charge of murder.
  • The applicant 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.
  • The applicant is referred to the Mental Health Review Tribunal under s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
  • The Registrar directed to notify the Minister for Health and the Mental Health Review Tribunal of the orders and to provide specified documentation, including trial transcripts, expert reports, and victim impact statements.
  • The Registrar directed to notify Justice Health and Forensic Mental Health Network of the orders and to provide copies of all expert reports.

Key Takeaways

  • A post-trial diagnosis of schizophrenia, confirmed by three independent psychiatrists including the Crown's own expert, constituted fresh evidence capable of supporting a finding of miscarriage of justice and the quashing of a murder conviction.
  • Fresh evidence need not have existed at trial to qualify as such: under the principle in R v Abou-Chabake, evidence not available to an applicant at trial, actually or constructively, may be relied upon where the court is ultimately concerned with whether a miscarriage of justice has occurred.
  • Where the Crown concedes that a special verdict of act proven but not criminally responsible would be open, the Court of Criminal Appeal has power under s 7(4) of the Criminal Appeal Act 1912 (NSW) to enter that verdict in substitution for a jury conviction.
  • Under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a person is not criminally responsible where, at the time of the act, a mental health impairment meant they did not know the nature and quality of the act, or did not know the act was wrong.
  • A special verdict of act proven but not criminally responsible does not result in unconditional release: the Court of Criminal Appeal referred the applicant to the Mental Health Review Tribunal and ordered ongoing detention pending review by due process.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 33, 34
- Criminal Appeal Act 1912 (NSW), s 7(4)

Cases
- R v Abou-Chabake [2004] NSWCCA 356
- Carter v R [2019] NSWCCA 11
- Masters v R [2022] NSWCCA 228