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Supreme Court 28 November 2024

R v Breckenridge

[2024] NSWSC 1522

Homicide
CRIME MURDER DEFENCE OF MENTAL ILLNESS ACCUSED FIT TO PLEAD AND STAND TRIAL SPECIAL VERDICT CRIMINAL PROCEEDINGS

Citation: R v Breckenridge [2024] NSWSC 1522
Court: Supreme Court of New South Wales
Date: 28 November 2024
Judge: Rothman J

Background

The accused was indicted for the murder of a 39-year-old man at Beresfield Railway Station on 12 December 2022. The two men were strangers. CCTV footage captured the accused kicking the deceased in the head as he climbed a stairway, pushing him down the stairs, and then stomping forcefully on his head and neck nine times over a period of 22 seconds. The deceased was declared life extinct at the scene, with cause of death determined to be complications following blunt force craniofacial trauma.

The accused had a significant psychiatric history, including up to eleven admissions to psychiatric hospitals across Australia and Canada. He had been diagnosed with schizophrenia and was subject to a Community Treatment Order requiring weekly injections. Despite ongoing treatment, he continued to experience symptoms and had relapsed into substance use prior to the offence.

The accused pleaded not guilty on the basis of mental health impairment. Both the Crown's psychiatrist and the defence psychiatrist agreed that the statutory defence of mental health impairment was available to the accused under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

  • Whether the accused satisfied the requirements for a finding of mental health impairment under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), specifically whether, at the time of the conduct, he did not know the nature and quality of his act or did not know the act was wrong
  • Whether a special verdict should be entered finding the act proven but the accused not criminally responsible
  • What orders should follow from such a verdict under ss 31, 33, and 34 of the Act

Decision

Rothman J was satisfied that the accused met the requirements for the statutory defence of mental health impairment. Both expert psychiatrists agreed on the diagnosis of schizophrenia and substance use disorder, and both concluded the accused was in an acute psychotic state at the time of the offence. The court accepted that, due to the severity of his mental illness, the accused did not know his act was wrong in the relevant statutory sense: that is, he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.

The court noted the agreed facts, including the psychiatric reports, and was satisfied the conditions in s 28 of the Act were established. A special verdict was accordingly entered, finding that the act was proven but that the accused was not criminally responsible.

Following the special verdict, the court turned to the orders required by the Act. Rothman J observed that the Mental Health Review Tribunal, not the court, would govern the accused's ongoing detention and any future release. The Tribunal cannot release an accused unless satisfied that the safety of the person or any member of the public will not be seriously endangered. The court noted this may result in a period of detention in a forensic facility longer than a conventional custodial sentence.

Orders Made

  • Special verdict entered pursuant to s 31 of the Act on the single count of murder: the act is proven and the accused is not criminally responsible
  • The accused 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 (pursuant to ss 33 and 34)
  • The accused is referred to the Mental Health Review Tribunal (pursuant to s 34)
  • The Registrar is to notify the Minister for Health within seven days
  • The Registrar is to notify the Mental Health Review Tribunal of the verdict and orders within seven days, and provide copies of the orders, reasons for judgment, and all psychiatric reports
  • The Registrar is to notify Justice Health and provide copies of the orders, reasons, and exhibits within seven days

Key Takeaways

  • Under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a person is not criminally responsible where, at the time of the relevant conduct, a mental health impairment meant they did not know the nature and quality of their act, or could not reason with a moderate degree of sense and composure about whether that act was wrong in the eyes of reasonable people.
  • Agreement between Crown and defence psychiatric experts on the availability of the mental health impairment defence did not relieve the court of its obligation to be independently satisfied that the statutory requirements were met.
  • A special verdict finding the act proven but the accused not criminally responsible does not result in acquittal and release; rather, the accused is subject to ongoing detention and oversight by the Mental Health Review Tribunal.
  • Detention under a forensic order may extend beyond what a conventional custodial sentence would have been, because the Tribunal must be satisfied that release will not seriously endanger the safety of the accused or the public before any release can occur.
  • The Supreme Court's role under this regime is to make the foundational findings and enter the requisite orders; subsequent decisions about placement, treatment, and release pass entirely to the Mental Health Review Tribunal.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 31, 33, 34

Cases:
- No cases were cited in the judgment.