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Court of Criminal Appeal 24 February 2025

R v Skapik

[2025] NSWCCA 19

Public order & justice offences
CRIME

Citation: R v Skapik [2025] NSWCCA 19
Court: NSW Court of Criminal Appeal
Date: 24 February 2025
Judges: Stern JA (principal judgment); Garling J and N Adams J agreeing

Background

The case arose from District Court proceedings in which a federal offender raised the question of whether he was suffering from a "mental illness within the meaning of the civil law of the State" for the purposes of s 20BQ of the Crimes Act 1914 (Cth). That provision gives a sentencing court a range of options, including hospital orders and psychiatric probation orders, where a person convicted of a federal offence suffers from such a mental illness and the illness contributed to the offence.

The District Court judge (Scotting DCJ) submitted a question of law by stated case to the Court of Criminal Appeal at the request of the Commonwealth Director of Public Prosecutions (the Crown). The question was narrow and technical: whether "mental illness within the meaning of the civil law of the State" in s 20BQ(1)(a) is confined to the definition of "mental illness" in s 4 of the Mental Health Act 2007 (NSW), which is the NSW statute governing involuntary detention of the mentally ill.

The Crown argued the answer was yes, contending that "civil law" in this context meant "civil commitment law," that is, laws authorising involuntary hospitalisation. The offender argued the answer was no, submitting that the phrase referred simply to mental illness as understood in civil (as opposed to criminal) law generally.

  • Whether the phrase "mental illness within the meaning of the civil law of the State or Territory" in s 20BQ(1)(a) of the Crimes Act 1914 (Cth) is limited to the definition of mental illness in the relevant State or Territory's civil commitment legislation (in NSW, s 4 of the Mental Health Act 2007).
  • Alternatively, whether the phrase refers more broadly to the concept of mental illness as understood under the civil law of the State or Territory, as distinguished from the criminal law.

Decision

The Court of Criminal Appeal answered the stated question "no," unanimously holding that the phrase is not confined to the statutory definition in s 4 of the Mental Health Act 2007 (NSW).

The text of s 20BQ did not support the Crown's construction. Nothing in Parliament's language indicated an intention to tie the concept of mental illness solely to mental illness of a character and severity that would justify civil commitment (that is, involuntary hospitalisation). The Court noted it would be "surprising" if Parliament had intended the broad range of sentencing options in s 20BQ, including psychiatric probation orders that require the offender's own consent, to be available only to those whose illness was severe enough to warrant involuntary detention.

The Court also examined the statutory context carefully. When s 20BQ was introduced, there was an established distinction in the criminal law between "mental illness" for the purpose of a not-guilty verdict on grounds of mental illness, and "mental illness" for the purpose of fitness to plead. The more natural reading of "within the meaning of the civil law" is that Parliament intended to distinguish the s 20BQ concept from those specific, well-established criminal law meanings, rather than to restrict it to civil commitment legislation.

The Court acknowledged that different definitions of mental illness may operate across different States and Territories, but observed that this would be an inevitable consequence of Parliament's choice of language in s 20BQ(1)(a) regardless of which construction was adopted. On the better view, the phrase directs attention to the meaning of "mental illness" under the State or Territory's civil law as distinguished from its criminal law.

Orders Made

  • Extension of time for the question of law to be submitted until 10 October 2024 was granted.
  • The stated question of law was answered "No."

Key Takeaways

  • The Court of Criminal Appeal held that "mental illness within the meaning of the civil law of the State or Territory" in s 20BQ(1)(a) of the Crimes Act 1914 (Cth) is not limited to the definition of "mental illness" in s 4 of the Mental Health Act 2007 (NSW), nor to any equivalent civil commitment statute in another jurisdiction.
  • The phrase "civil law" in s 20BQ(1)(a) operates to distinguish mental illness from the specific meanings given to that term within the criminal law, particularly the established common law concepts relevant to verdicts of not guilty on grounds of mental illness and fitness to plead.
  • A conviction for a federal offence does not require that a person's mental illness satisfy the threshold for involuntary hospitalisation in order to enliven the sentencing options under s 20BQ, including hospital orders and psychiatric probation orders.
  • Civil courts can ascribe meaning to the term "mental illness" without reference to a statutory definition, as illustrated by prior NSW Court of Appeal authority cited in the judgment.
  • Differing definitions of mental illness across States and Territories remain an inherent consequence of Parliament's drafting of s 20BQ(1)(a), irrespective of which construction is adopted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 20BQ, 20BS, 20BV
- Mental Health Act 2007 (NSW), s 4
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5B
- Various earlier Mental Health Acts (NSW, WA, SA, ACT) considered for historical legislative context

Cases:
- Kelly v Saadat-Talab (2008) 72 NSWLR 305; [2008] NSWCA 213
- R (Cth) v Petroulias (No 36) [2008] NSWSC 626
- Attorney-General for NSW v Brewery Employees Union of NSW (1908) 6 CLR 469; [1908] HCA 94
- Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42
- Barker v The Queen (1983) 153 CLR 338; [1983] HCA 18
- R v Porter (1933) 55 CLR 182; [1933] HCA 1
- R v M'Naghten (1843) 8 ER 718
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34
- RAP v AEP [1982] 2 NSWLR 508; DW v JMW [1983] 1 NSWLR 61