Citation: R v Woof [2024] NSWDC 484
Court: District Court of New South Wales
Date: 17 October 2024
Judge: Abadee DCJ
Background
The accused was charged with cultivating a large commercial quantity of prohibited plants, specifically 1,564 cannabis plants, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). The alleged offending occurred on 11 October 2021 at a residential property in Northmead.
The accused had previously been found unfit to be tried in the ordinary sense. The Mental Health Review Tribunal ultimately determined he would not become fit within twelve months of the initial unfitness finding, which triggered the matter proceeding as a "special hearing" under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The accused represented himself at the hearing, an unusual circumstance that required a specific court order, as the default position under the legislation requires legal representation.
The accused did not deny cultivating the plants. His position, as expressed in a recorded interview with police (known as an ERISP), was that he was justified in what he did. The nature of that justification became central to the mental health impairment defence.
Legal Issues
- Whether the accused was proven to have committed the elements of the offence of cultivating a large commercial quantity of prohibited plants
- Whether the accused had a "mental health impairment" within the meaning of s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) at the time of the offending
- Whether, by reason of that mental health impairment, the accused did not know his conduct was wrong at the time he carried it out, thereby establishing the defence under s 28(1)(b) of that Act
- Whether the statutory presumption in s 28(3) of the Act (that a person knew conduct was wrong) was rebutted on the probabilities
Decision
Abadee DCJ directed himself on the elements of the offence, consistent with the requirements applicable to a judge-alone hearing. A large commercial quantity of cannabis plants is defined as 1,000 plants. The accused's own admissions in his ERISP, combined with the physical evidence, satisfied the court that the acts of cultivation and the requisite number of plants were established.
The court then turned to the mental health impairment defence. Psychiatric evidence from Dr Dayalan, whose opinion was given substantial weight, established that the accused had a diagnosis of schizophrenia and was suffering from a mental health impairment at the time of the offending. The accused had spent at least a year constructing what he believed was a sculpture designed to sequester evil energy from the world, using cannabis plants as the medium for transferring and storing that energy in stone objects. On the day of the offending, believing he had completed this project, he telephoned 000 to report that a "bomb was ready to go off," a metaphor he used to describe the completion of his creation.
On the critical question of whether the accused knew his conduct was wrong at the time, Abadee DCJ exercised caution about the ERISP evidence. That interview took place eleven days after the offending, by which time the accused had been treated and medicated and was lucid. The court found it more reliable to look to the 000 call, ambulance records, a mental health assessment form dated 13 October 2021, and the physical layout of the property as indicators of his state of mind at the time. Drawing on Dr Dayalan's opinion, the court found that the accused did not, at the time of the offending, reason with a moderate degree of sense and composure about whether his conduct was wrong. He was deluded into believing he was healing the world from evil spirits.
The court was satisfied on the probabilities that the statutory presumption that the accused knew his conduct was wrong was rebutted. The s 28(1)(b) defence was established. Having reached that conclusion, Abadee DCJ found it unnecessary to determine whether the Crown had proven the third element of the charge (the accused's intention to cultivate in excess of a large commercial quantity) beyond reasonable doubt.
Orders Made
- Count 1: Special verdict of act proven but not criminally responsible
Key Takeaways
- The District Court confirmed that, in a special hearing conducted under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the available verdicts are "not guilty," "special verdict of act proven but not criminally responsible," or a finding that the accused committed the offence based on the limited evidence available.
- A recorded police interview (ERISP) conducted after treatment and medication had commenced may carry reduced weight as evidence of an accused's state of mind at the time of the offending, particularly where the interval between offending and interview is significant.
- Under s 28(1)(b) of the Act, the mental health impairment defence requires proof on the probabilities that the accused did not know the conduct was wrong at the time it occurred; that question is assessed by reference to the accused's actual mental state at the time, not their later (medicated) reflection on it.
- Where the mental health impairment defence is established, the court need not resolve every remaining element of the charge beyond reasonable doubt, as the defence is determinative of the verdict.
- Special hearings may exceptionally proceed with an unrepresented accused where the accused has been self-represented in the lead-up to the hearing and the prosecution takes a neutral position, subject to a specific court order under s 56(3) of the Act.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3(a1), 23(2)(a), 28, 43
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 29, 33(2), 34, 54, 56
- Criminal Procedure Act 1986 (NSW), s 133(2)
Cases
- R v Busby [2018] NSWCCA 136
- R v CWW (1993) 32 NSWLR 348