Citation: R v MM [2024] NSWSC 1066
Court: Supreme Court of New South Wales
Date: 23 August 2024
Judge: R A Hulme AJ
Background
The accused, MM, was charged with the murder of Jason Galleghan at Doonside on 4 August 2021. MM was 15 years old at the time of the offence; the victim was 16. Because MM was a young person, her name is suppressed under the Children (Criminal Proceedings) Act 1987 (NSW). The victim's mother consented to Jason being identified by his first name.
The agreed facts described a premeditated plan to lure Jason to a house under the pretence that he had stolen items, and to assault him as retribution. A group of adults and young people participated. Jason was subjected to a prolonged and extremely violent attack in a spare bedroom. He was left unconscious and an ambulance was not called for approximately one hour. He died in hospital two days later from complications of multiple blunt force injuries.
Video recordings captured parts of the assault, including MM's active and vocal participation. His Honour described her conduct as "chilling in its evil inhumanity." MM was arrested the following morning. Several co-offenders had been dealt with separately in earlier proceedings.
Legal Issues
- Whether the physical elements of the murder charge were proven beyond reasonable doubt.
- Whether MM had a "mental health impairment" within the meaning of s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act) at the time of the offence.
- Whether that impairment had the effect that MM did not know the act was wrong (that is, could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong), pursuant to s 28(1)(b) of the Act.
- Whether the impairment was caused solely by the temporary effect of ingesting a substance, which would have excluded the defence under s 4(3) of the Act.
Decision
Both the prosecution and defence agreed that the evidence supported a defence of mental health impairment. His Honour noted that, despite this agreement, the court was still required to independently assess the evidence and determine whether the defence was established.
Two forensic psychiatrists, Dr Richard Baker and Associate Professor Scott Harden, provided expert reports. Both experts held a unanimous opinion that MM was experiencing a severe form of manic psychosis at the time of the offence. Symptoms consistent with this presentation were observed by clinicians shortly after MM came into custody, and there was a documented history of similar symptoms both before and after the offence.
His Honour was satisfied that the three elements of the statutory definition of "mental health impairment" in s 4 were met: MM had a disturbance of thought, mood, volition or perception; the disturbance was clinically significant; and it impaired her judgment and behaviour. Both experts also discounted the possibility that the impairment was caused solely by the temporary effect of alcohol or any other substance, addressing the exclusion in s 4(3). The Crown conceded this point.
His Honour was satisfied on the balance of probabilities that the impairment had the effect that MM did not know the act was wrong within the meaning of s 28(1)(b). While the physical elements of murder were proven beyond reasonable doubt, the defence of mental health impairment was established, and a special verdict was required under s 31 of the Act.
Orders Made
- MM is to be detained at the Forensic Hospital Austinmer Adolescent Unit, or such other place as determined from time to time by the Mental Health Review Tribunal, until released by due process of law.
- MM is referred to the Mental Health Review Tribunal.
- The Registrar is to notify the Mental Health Review Tribunal as soon as practicable and provide it with: the reasons for verdict and orders; copies of exhibits including the agreed facts and the expert reports of Dr Richard Baker and Associate Professor Scott Harden (video recordings excluded); and a copy of the family victim impact statement.
Key Takeaways
- A special verdict of "act proven but not criminally responsible" under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) does not result in a conviction or sentence; instead, the accused is either released or detained subject to ongoing review by the Mental Health Review Tribunal.
- Even where both prosecution and defence agree that a mental health impairment defence is established, the court retains an independent obligation to assess the evidence and determine whether the statutory elements are made out.
- Under s 4(3) of the Act, an impairment caused solely by the temporary effect of ingesting a substance does not qualify as a mental health impairment. Here, unanimous expert opinion that a severe manic psychosis existed independently of any substance use was sufficient to displace that exclusion.
- The second limb of the defence in s 28(1)(b) focuses on whether the accused could reason with a moderate degree of sense and composure about whether the act was wrong as perceived by reasonable people, not simply whether the accused subjectively believed the act was acceptable.
- Detention following a special verdict is indeterminate but subject to periodic review: the Mental Health Review Tribunal oversees the accused's ongoing detention and may order release when satisfied that the safety of the accused and the public would not be seriously endangered.
Legislation and Cases Referenced
Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28(1), 31
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Cases:
- R v BE [2023] NSWSC 1007
- R v BL [2024] NSWSC 51
- R v AD [2024] NSWSC 444
- R v TB [2024] NSWSC 447
- R v Sione; R v Dawson [2024] NSWSC 378
- R v Sione; R v Dawson [2024] NSWSC 846