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Supreme Court 14 October 2024

R v Harrington (a pseudonym)

[2024] NSWSC 1282

Assault & violenceHomicide
CRIME DEFENCE OF MENTAL HEALTH IMPAIRMENT JUDGE ALONE HEARING WHETHER DEFENCE MADE OUT SPECIAL VERDICTS ENTERED

Citation: R v Harrington (a pseudonym) [2024] NSWSC 1282
Court: Supreme Court of New South Wales
Date: 14 October 2024
Judge: McNaughton J

Background

The accused (identified by pseudonym under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)) faced two charges on indictment. The first was that on 19 March 2023 she attempted to drown her infant son with intent to murder him. The second was that on 23 March 2023 she murdered him. All names in the judgment are pseudonyms.

The accused pleaded not guilty to both charges and was represented by an Australian legal practitioner throughout. Both the defence and the prosecution agreed that the expert psychiatric evidence established it was open to the Court to enter a special verdict of "act proven but not criminally responsible" on the basis of mental health impairment, a verdict available under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act).

The matter was adjourned in August 2024 to obtain an independent forensic psychiatric report under s 33(2) of the Act, addressing the accused's current condition and whether her release would seriously endanger public safety. Following receipt of that report, the accused's earlier position in favour of immediate release changed, and both parties agreed that an order for continued detention was appropriate.

  • Whether the physical acts constituting the charged offences were proven to the required standard
  • Whether the defence of mental health impairment under s 28 of the Act was established on the balance of probabilities
  • Whether the Court was satisfied, after considering the evidence, that a special verdict of "act proven but not criminally responsible" should be entered under s 31 of the Act
  • What order was appropriate under s 33 of the Act following the entry of a special verdict

Decision

McNaughton J confirmed that this was a hearing under s 31 of the Act, not a trial, and that the requirements of s 133 of the Criminal Procedure Act 1986 (NSW) (which govern judge-alone trials and require written reasons addressing legal principles, fact-findings, and jury-equivalent warnings) did not apply. The Court nonetheless provided reasons, consistent with the approach taken in R v Sands [2021] NSWSC 1325 and R v Jackson [2021] NSWSC 1404, on the basis that judicial proceedings require reasons regardless.

On the physical acts, McNaughton J was satisfied beyond reasonable doubt that the accused carried out the acts underlying both charges. On the mental health impairment defence, the Court was satisfied on the balance of probabilities that, at the time of the acts, the accused did not know the acts were wrong. That is, she could not reason with a moderate degree of sense and composure about whether her conduct, as perceived by reasonable people, was wrong.

That incapacity arose from a mental health impairment in the nature of a psychotic disorder. The expert evidence from Dr Richard Furst and Professor David Greenberg was combined and undisputed. The most recent report by Dr Ian Korbel and Leanne Stuckey identified the disorder as potentially bipolar disorder, while the earlier experts had pointed to schizophrenic or schizoaffective disorder. McNaughton J was satisfied the defence of mental health impairment was made out, and entered special verdicts on both counts.

Following agreement between the parties and having regard to the s 33(2) report, the Court ordered the accused's detention at the Forensic Hospital (or such other place as determined by the Mental Health Review Tribunal) until released by due process of law.

Orders Made

  • Special verdicts entered on Counts 1 and 2 pursuant to s 31 of the Act: acts proven but accused not criminally responsible
  • The accused to be detained at the Forensic Hospital, or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law (s 33(1)(b))
  • The accused referred to the Mental Health Review Tribunal pursuant to s 34 of the Act
  • The Registrar to notify the Minister for Health of the orders within 7 days
  • The Registrar to notify the Mental Health Review Tribunal of the verdict and orders within 7 days, and to provide a copy of the judgment, orders, and exhibits
  • The Registrar to notify Justice Health of the verdict and orders, and provide a copy of the judgment, orders, and exhibits, within 7 days

Key Takeaways

  • Under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a court may enter a special verdict of "act proven but not criminally responsible" without empanelling a jury, provided both parties agree the evidence establishes the defence and the accused is legally represented.
  • A hearing under s 31 of the Act is not a trial, and the formal judge-alone trial requirements in s 133 of the Criminal Procedure Act 1986 (NSW) do not apply. However, the Supreme Court confirmed (following R v Sands and R v Jackson) that written reasons remain necessary as a matter of judicial obligation.
  • The mental health impairment defence under s 28 requires satisfaction on the balance of probabilities that, at the time of the act, the accused could not reason with a moderate degree of sense and composure about whether the act was wrong as perceived by reasonable people.
  • Where a special verdict is entered, s 33(1)(b) empowers the court to order detention in a place and manner it thinks fit until released by due process of law. That order was made here by agreement of both parties, following an independent forensic psychiatric report obtained under s 33(2).
  • The referral of the accused to the Mental Health Review Tribunal under s 34 is a required step following entry of a special verdict and a detention order, with notification obligations falling on the Registrar to multiple bodies including the Tribunal, the Minister for Health, and Justice Health.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 31, 33, 34
- Criminal Procedure Act 1986 (NSW), s 133
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- R v Sands [2021] NSWSC 1325
- R v Jackson [2021] NSWSC 1404