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Supreme Court 14 November 2024

R v Fineanganafo (No 2)

[2024] NSWSC 1407

Assault & violenceHomicidePublic order & justice offences
MENTAL HEALTH FORENSIC PATIENT WHERE SPECIAL VERDICT ENTERED CONSEQUENTIAL ORDERS

Citation: R v Fineanganafo (No 2) [2024] NSWSC 1407
Court: Supreme Court of New South Wales
Date: 14 November 2024
Judge: Davies J

Background

On 8 November 2024, Davies J entered a special verdict of "acts proven but not criminally responsible" against the defendant on six counts in an indictment, including the murder of a paramedic in a McDonald's carpark. That verdict was recorded in the companion judgment R v Fineanganofo (No 1) [2024] NSWSC 1400. The defendant had suffered from severe mental health issues that, at the time of the offences, impaired his judgment and ability to think logically.

The proceedings were adjourned to 14 November 2024 for two purposes: to receive victim impact statements from those affected by the offences, and to make consequential orders concerning the defendant's detention and supervision as a forensic patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act").

The victims of the various offences included not only the deceased paramedic but also a person threatened at a petrol station and a person threatened in a hardware store carpark, all targeted randomly.

Legal Issues

  • What consequential orders should be made following the special verdict, pursuant to ss 33 and 34 of the Act?
  • Whether the court was satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public would not be seriously endangered by the defendant's release?
  • What ongoing supervision and review mechanisms apply to the defendant as a forensic patient?

Decision

Issue 1: Satisfaction as to Public Safety

Davies J was not satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public would not be seriously endangered by the defendant's release (at [9], Order 1). This finding engaged the mandatory detention provisions of the Act.

Issue 2: Detention Order

Because the court could not be satisfied as to safety, the defendant was ordered to be detained in a correctional facility, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law (at [9], Order 2). The Act provides that the defendant will not be released until the Tribunal is satisfied that public safety will not be seriously endangered: ss 29(d) and 84(2) of the Act (at [7]).

Issue 3: Ongoing Review and Supervision

Davies J explained that as a forensic patient, the defendant's case will be reviewed by the Mental Health Review Tribunal as soon as practicable, and then at six-monthly intervals under s 78 of the Act (at [7]). Any future release may be subject to conditions, and the Tribunal retains power under s 109 of the Act to order the defendant's apprehension and further detention if conditions are breached or his mental condition deteriorates (at [7]).

Issue 4: Family Participation

Davies J made a recommendation under s 145 of the Act that members of the deceased's family be heard in any future hearings conducted by the Mental Health Review Tribunal (at [9], Order 7).

Orders Made

  • The court was not satisfied that the defendant's release would not seriously endanger public safety (s 33(3) of the Act).
  • The defendant is to be detained in a correctional facility or such other place as determined by the Mental Health Review Tribunal, until released by due process of law (ss 33 and 34 of the Act).
  • The Registrar is to notify the Minister of Health of the relevant orders within 7 days.
  • The Registrar is to notify the Mental Health Review Tribunal of the verdict and orders within 7 days, and provide copies of both judgments, orders, exhibits and victim impact statements.
  • The Registrar is to notify Justice Health of the verdict and orders within 7 days, and provide copies of both judgments, orders, exhibits and victim impact statements.
  • The court recommends, under s 145 of the Act, that members of the deceased's family be heard in any hearing conducted by the Mental Health Review Tribunal.

Key Takeaways

  • Following a special verdict of "acts proven but not criminally responsible," ss 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) require the court to make consequential orders for detention unless it is satisfied on the balance of probabilities that release would not seriously endanger public or personal safety (at [7], [9]).

  • Detention as a forensic patient does not equate to indefinite imprisonment without review: the Mental Health Review Tribunal must review the patient's case as soon as practicable and at six-monthly intervals, with release possible when safety criteria are met under ss 29(d) and 84(2) of the Act (at [7]).

  • Under s 109 of the Act, any future conditional release remains subject to recall if conditions are breached or the patient's mental condition deteriorates to a point of serious danger to others (at [7]).

  • Section 145 of the Act empowers a court to recommend that family members of a deceased victim be heard in Mental Health Review Tribunal proceedings, a step Davies J took in this case (at [9]).

  • The Supreme Court used this judgment to explain publicly the effect of the special verdict and the statutory scheme governing forensic patients, acknowledging that the outcome can be difficult for victims' families and the broader community to understand (at [7]-[8]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 29, 33, 34, 78, 109, 145

Cases
- R v Fineanganofo (No 1) 2024] NSWSC 1400