R v Mirza

Citation: R v Mirza [2024] NSWDC 224
Court: District Court of New South Wales
Date: 18 June 2024
Judge(s): Bourke SC DCJ

Background

The accused faced eight charges arising from incidents in October and November 2022. The charges involved three complainants and included sexual touching, aggravated sexual assault, breaking and entering, assault with a weapon, and related offences. By agreement between the accused and the Crown, the trial proceeded before a judge alone pursuant to section 132 of the Criminal Procedure Act 1986.

The accused did not dispute carrying out the physical acts alleged in each of the eight counts. The sole issue at trial was whether the mental health impairment defence under section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the Act") was available to him.

Two forensic psychiatrists gave evidence: Professor David Greenberg, called by the Crown, and Dr Adam Martin, called by the defence. Both experts had assessed the accused and prepared multiple reports before giving oral evidence over two trial days.

Legal Issues

• Whether the accused had a mental health impairment at the time he carried out each of the acts alleged in the indictment, satisfying the first limb of the section 28 defence.
• Whether that mental health impairment had the effect that the accused did not know his acts were wrong, in the sense that he could not reason with a moderate degree of sense and composure about whether his acts, as perceived by reasonable people, were wrong, satisfying the second limb of the section 28 defence.
• What verdicts and consequential orders were appropriate if the defence was made out.

Decision

Issue 1: First limb of the section 28 defence (existence of mental health impairment)

Both psychiatrists were unanimous that the accused had a mental health impairment at the time of the alleged offences. Professor Greenberg diagnosed schizophrenia disorder with co-morbid substance use disorder and PTSD in partial remission. Dr Martin diagnosed paranoid schizophrenia, supported by documented evidence of involuntary hospitalisation and mandatory anti-psychotic medication approximately twelve months before the offences. The Crown and the defence both submitted that the first limb was satisfied. The court accepted those submissions and found on the balance of probabilities that the accused had a mental health impairment at the relevant time (at [64]-[65]).

Issue 2: Second limb of the section 28 defence (did the accused know his acts were wrong?)

Neither expert suggested the accused was unaware of the nature and quality of his physical acts, and neither party advanced that limb (at [67]). The issue was whether the accused knew his acts were wrong in the moral and social sense. Both psychiatrists concluded that the accused's paranoid delusional belief system, including his conviction that he was "programmed" and participating in a controlled "game", meant he could not reason with moderate composure about the wrongfulness of his acts as perceived by reasonable people (at [71]).

The Crown ultimately conceded the evidence was capable of supporting a finding that the defence was made out and that it would be open to the court to so find (at [69]). The court noted that while expert evidence is not automatically accepted, it cannot be discarded capriciously, citing R v Hall (1988) 36 A Crim R 368. The court found the evidence "all one way" and accepted the opinions of both psychiatrists (at [70]-[72]). It was satisfied on the balance of probabilities that the defence was established because the accused did not know his acts were wrong (at [73]).

Verdicts and consequential matters

The court found each of the eight physical acts proven beyond reasonable doubt but returned special verdicts that the accused was not criminally responsible by reason of mental health impairment (at [76]-[83]). The court noted expressly that a special verdict is not a complete acquittal, and that the serious impact of the offending on the three complainants was not diminished by the verdicts (at [85], [88]). The accused was referred to the Mental Health Review Tribunal for ongoing review, with detention ordered in a secure forensic hospital or mental health facility pending that review.

Orders Made

• On each of the 8 counts, the court found the acts proven but the accused not criminally responsible by reason of mental health impairment under section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
• The accused was referred to the Mental Health Review Tribunal.
• A copy of the judgment, transcript, and exhibits were directed to be provided to the Mental Health Review Tribunal.
• The Registrar of the Court was directed to notify the Minister for Health of the judgment and orders.
• Pursuant to section 33(1)(b) of the Act, the accused was ordered to be detained in a secure forensic hospital or mental health facility pending review by the Mental Health Review Tribunal, or, failing that, in the Corrective Services Hamden Pod or similar facility.

Key Takeaways

• Under section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the two limbs of the defence require, first, proof on the balance of probabilities of a mental health impairment and, second, proof that the impairment had the effect that the accused did not know the nature and quality of the act, or did not know the act was wrong in the sense of being unable to reason with moderate composure about its wrongfulness as perceived by reasonable people (at [63]-[66]).

• Where both prosecution and defence psychiatrists are unanimous in their expert opinions on the mental health impairment defence, the District Court confirmed it will not discard that evidence capriciously, consistent with R v Hall (1988) 36 A Crim R 368, and the unanimity of expert opinion weighed significantly in favour of finding the defence established (at [70]-[72]).

• A special verdict that an accused is not criminally responsible by reason of mental health impairment is not a complete acquittal; the court's finding that the physical acts occurred stands, and the accused is committed as a forensic patient to the Mental Health Review Tribunal, which determines detention and treatment until satisfied the accused's release would not endanger public safety (at [85]-[87]).

• Documented pre-existing involuntary psychiatric hospitalisation and mandatory anti-psychotic medication in the period leading up to alleged offending provided objective evidence supporting the diagnosis of a chronic psychotic illness rather than a transient drug-induced state, and the court treated this as significant corroborating material for the expert opinions (at [51]).

• A coherent and lucid presentation by an accused in police interviews does not, of itself, negate the possibility of psychosis at the time of the offending; both psychiatrists explained that people with schizophrenia may present as outwardly composed while simultaneously acting under delusional belief systems, a concept Dr Martin described as "schizophrenic ambivalence" (at [46], [55]-[60]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases
- R v Hall (1988) 36 A Crim R 368 at 370
- R v Markuleski (2001) 52 NSWLR 82
- R v Tonga [2021] NSWSC 1064