Citation: R v Maxwell [2024] NSWSC 1576
Court: Supreme Court of NSW
Date: 4 December 2024
Judge: Cavanagh J
Background
On 14 January 2020, Shane De Britt was shot and killed at his home in Eurimbla, NSW. He died from a single gunshot wound to the head while lying in his bed. Several other persons had already been convicted of offences arising from his death before this matter came to hearing.
The accused, James Maxwell, was charged with murder. In September 2023, Yehia J found Maxwell unfit to be tried and further found that he would not become fit within the following 12 months. Maxwell suffers from schizophrenia, an intellectual disability, and a hearing impairment. He was remanded in custody pending a decision on whether proceedings would continue, and eventually elected to proceed by way of a special hearing before a judge alone.
The Crown did not allege that Maxwell was the shooter or that he was even in the room when the deceased was shot. The Crown's case rested entirely on joint criminal enterprise (JCE) and extended JCE liability: that Maxwell agreed to participate in a plan to kill, cause grievous bodily harm to, or assault the deceased, and that the shooting occurred in furtherance of that common purpose.
Legal Issues
- Whether a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is conducted on the same evidentiary rules as a trial
- Whether the Crown proved beyond reasonable doubt that Maxwell was a participant in a joint criminal enterprise to kill the deceased, to cause him grievous bodily harm, or at minimum to assault him
- Whether Maxwell's presence at the deceased's property in a car, together with the other participants, was sufficient to establish intentional encouragement or active participation in the JCE
- What weight, if any, could be placed on the evidence of witnesses who were themselves criminally involved in the events and had already been convicted
- Whether Maxwell's cognitive and psychiatric impairments affected his capacity to understand or participate in any agreement to commit a crime
Decision
Cavanagh J conducted the special hearing as if it were a trial, applying the full rules of evidence. His Honour rejected a submission by defence counsel that the special hearing permitted a relaxed evidentiary approach. The purpose of a special hearing, as set out in s 54 of the MHCIFP Act, is to ensure an accused person is acquitted unless the prosecution proves to the criminal standard, on the limited evidence available, that the defendant committed the offence charged.
On the substantive issue, the Crown was required to establish that Maxwell had reached an understanding or agreement with others that the crime would be committed, and that the shooting took place in accordance with his continuing participation in that agreement. Applying the principles in Gillard v The Queen (2003) 219 CLR 1, mere presence at the scene and knowledge of the crime are insufficient for criminal responsibility. Even attendance at the scene does not, of itself, constitute encouragement. There must be intentional encouragement.
Cavanagh J was not satisfied that Maxwell's presence in the car at the deceased's property demonstrated intentional encouragement or ongoing participation in any JCE. The Crown's case relied substantially on witnesses who were themselves criminally involved and whose evidence attracted significant scrutiny. His Honour was also conscious that Maxwell's schizophrenia raised real questions about his capacity to comprehend and agree to any plan discussed in his presence, and there was a live dispute about whether Maxwell was even present when plans to kill the deceased were discussed.
In all the circumstances, the Crown did not discharge its onus. Cavanagh J was left with a reasonable doubt as to whether Maxwell agreed to participate in any crime, whether the killing, the infliction of grievous bodily harm, or an assault on the deceased. The inference the Crown urged from Maxwell's words and conduct was not the only available inference, and the verdict was not guilty.
Orders Made
- The accused is not guilty of the murder of Shane De Britt.
- The accused is not guilty of participating in a criminal group and contributing to criminal activity (contrary to s 93T(1) of the Crimes Act 1900 (NSW)).
Key Takeaways
- A special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is conducted as if it were a trial, with the full rules of evidence applying; the court found no basis for relaxing those rules merely because the accused is unfit to be tried.
- Guilt based on joint criminal enterprise requires proof that the accused actually shared a common purpose with the other participants and that the crime was committed in accordance with a continuing agreement to which the accused remained a party.
- Mere presence at the scene of a crime, even voluntary presence, does not of itself amount to intentional encouragement sufficient to establish participation in a JCE.
- Where the Crown's case against an accused rests on JCE or extended JCE liability, and the accused has significant cognitive and psychiatric impairments, those impairments are relevant to whether the accused had the capacity to understand and enter into any agreement to commit the offence.
- In dismissing both charges, the Supreme Court confirmed that the criminal standard of proof applies in full at a special hearing, and that a reasonable doubt as to the accused's participation in any agreement is sufficient for acquittal.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 93T(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Evidence Act 1995 (NSW), ss 128, 165, 191
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36, 54, 56, 58, 59
Cases
- Gillard v The Queen (2003) 219 CLR 1 (HCA)
- Pollard v R (2011) 31 VR 416
- Robertson v R [2024] NSWCCA 99