Masters v R

[2022] NSWCCA 228

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Masters v R [2022] NSWCCA 228

Hearing dates:

11 March 2022

Date of orders:

24 October 2022

Decision date:

24 October 2022

Before:

Brereton JA at [1]
N Adams J at [2]
Lonergan J at [3]

Decision:

(1) The appeal is allowed.

(2) The convictions of the appellant in the District Court on 14 July 2020 for the offences of dangerous driving causing death contrary to s 52A(1)(c) of the Crimes Act 1990 (NSW) and dangerous driving causing grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1990 (NSW) and the sentence imposed on 20 September 2020 are quashed.

(3) In lieu thereof, pursuant to clause 5(3) Schedule 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) substitute special verdicts of acts proven but not criminally responsible.

(4) Discharge the appellant on the condition that he comply with all requirements of his Community Treatment Order and take medication prescribed to him by his treating psychiatrist.

Catchwords:

CRIMINAL LAW – conviction appeal – appeal from decision of the District Court – judge alone trial – whether trial judge’s conduct gave rise to procedural unfairness or an apprehension of bias causing a miscarriage of justice – whether wrong test applied in determining whether appellant had established that he was mentally ill at the time of the alleged offence – whether a special verdict of act proven but not criminally responsible should be entered pursuant to s 7(4) of the Criminal Appeal Act 1912 – appeal allowed – special verdicts entered

Legislation Cited:

Crimes Act 1990 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Appeal (Mental Illness) Amendment Act 1986

Mental Health Act 2007 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2

Carter v R [2019] NSWCCA 11

Chow v Director of Public Prosecutions (1992) 28 NSWLR 593

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Galea v Galea (1990) 19 NSWLR 263

Hone v The State of Western Australia (2007) 179 A Crim R 138; [2007] WASCA 283

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Jones v National Coal Board [1957] 2 QB 55

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31

Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67

Polsen v Harrison [2021] NSWCA 23

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

R v M’Naughten (1843) 10 CL & Fin 200; 8 ER 718

R v Porter (1933) 55 CLR 182; [1933] HCA 1

R v T, WA (2014) 118 SASR 382; [2014] SASCFC 3

Sodeman v R (1936) 55 CLR 192; [1936] HCA 75

Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56

TA v R [2019] NSWCCA 145

Tarrant v R [2018] NSWCCA 21

Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30

Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Yuill v Yuill [1945] P 15; [1945] 1 All ER 183

Category:

Principal judgment

Parties:

Nick Masters (Applicant)
Regina (Respondent)

Representation:

Counsel:
T Game SC / C O’Neill (Applicant)
E Balodis / A Morris (Respondent)

Solicitors:
Legal Aid (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2017/374231

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

18 September 2020

Before:

Marien SC ADCJ

File Number(s):

2017/00374231

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 14 July 2020 the appellant was found guilty in the Sydney District Court of one count of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm. Both convictions arose out of a single event on 22 September 2017 when the appellant was driving on Hastings River Drive in Port Macquarie. The appellant crossed to the wrong side of the road and collided at speed with the front of another vehicle carrying a driver and one passenger. As a result of the crash one of those victims was killed and the other was seriously injured. At the time of the crash, the appellant was driving in only his shirt and underpants. Paramedics also observed lacerations to the appellant’s left wrist and a puncture wound to the left side of his chest that were not consistent with an injury sustained in the course of the crash.

The issue at trial was whether the appellant should be found not guilty by reason of mental illness pursuant to what was then s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The trial judge was not satisfied that the defence was made out and convicted the appellant of both charges. The appellant was sentenced to an aggregate term of imprisonment of three years to be served by way of an Intensive Correction Order.

On appeal against the convictions, the appellant relied upon three grounds:

1. The trial judge’s intervention in the conduct of the trial was excessive, giving rise to procedural unfairness or an apprehension of bias and caused a miscarriage of justice.

2. The trial judge applied the wrong test in determining that the appellant had not established that he was mentally ill at the time of the alleged offence.

3. This Court should determine that the appellant was mentally ill at the time of the offences in accordance with s 7(4) of the Criminal Appeal Act 1912 (NSW).

Held (per Lonergan J; Brereton JA and N Adams J agreeing), allowing the appeal, quashing the convictions imposed in the District Court and substituting special verdicts of acts proven but not criminally responsible and discharging the appellant on the condition that he comply with his Community Treatment Order:

In respect of ground 1:

4. Despite the interventions of the trial judge there was no procedural unfairness because the doctors were able to persist in their views which were clearly and adequately articulated: at [109] per Lonergan J.

5. What occurred at the applicant’s trial is best characterised as a robust exchange between an incredulous judicial officer and professionally qualified expert witnesses. There was no jury to be influenced. The interventions of the trial judge during the expert evidence were founded on a misconception of the correct test, were excessive and misguided, but did not amount to circumstances where a fair-minded lay observer might reasonably apprehend on the basis of what occurred, that his Honour had departed from impartial decision-making: at [112]-[113] per Lonergan J.

6. Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88; Polsen v Harrison [2021] NSWCA 23 considered.

In respect of ground 2:

7. The trial judge erroneously overstated the rigours of the legal test which the appellant was required to satisfy to successfully raise the defence of mental illness. The test does not require the accused to show that he was “disabled” or “quite incapable”, but rather that by reason of the disease of the mind, the accused cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing so that he does not know that what he is doing is wrong. This involves a lack of ability to reason with moderate composure, not a total incapacity to recognise that the conduct is wrong: at [145]-[146] per Lonergan J.

8. R v M’Naughten (1843) 10 CL & Fin 200; 8 ER 718; R v Porter (1933) 55 CLR 182; [1933] HCA 1; Sodeman v R (1936) 55 CLR 192; [1936] HCA 75 applied.

In respect of ground 3:

9. Both of the experts were of the view that, taking into account all of the relevant matters, including his attempted self-harm, his leaving his children unattended, his confusion and distress and his clinical presentation to the treating doctors and their assessments of him during the treatment period after the collision, that his schizophrenia symptoms of persecutory delusions, thought disorder, disorganised behaviour and distress affected him so that he was not able to reason with a moderate degree of sense and composure that his act of driving into Mr Ashenden’s car was morally wrong. The appellant was mentally ill, so as not to be responsible, according to law, for his action at the time of the offences and so at the trial special verdicts (under the old Act) of not guilty by reason of mental illness should have been entered: at [161]-[163] per Lonergan J.

JUDGMENT

1. BRERETON JA: I agree with Lonergan J.

2. N ADAMS J: I agree with the orders proposed by Lonergan J for the reasons provided by her Honour.

3. LONERGAN J: On 14 July 2020 the appellant was found guilty of dangerous driving occasioning death in contravention of s 52A(1)(c) of the Crimes Act 1990 (NSW) (“the Act”) and dangerous driving occasioning grievous bodily harm in contravention of s 52A(3)(c) of the Act. On 22 September 2017 he had crossed to the wrong side of the road on Hastings River Drive, Port Macquarie and collided at speed with the front of a vehicle being driven by Mr Ashenden who was tragically killed in the accident. Mr Ashenden’s passenger, Mrs Ashenden, was seriously injured. The appellant was sentenced to an aggregate term of imprisonment of 3 years to be served by way of an Intensive Correction Order. The sentence expires on 17 September 2023.

4. The only issue at trial was whether the appellant failed to understand the moral wrongfulness of his acts so as to attract a special verdict of not guilty by reason of mental illness under what was then s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) which provided:

38   Special verdict

(1)  If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.

5. This requires persuasion, on the balance of probabilities, that at the time of the commission of his physical acts or omissions, the appellant was suffering from a defect of reason arising from a disease of the mind that had the effect that, although he appreciated the nature and quality of his actions, and although he may have appreciated the legal wrongfulness of his actions, he did not appreciate that they were morally wrong: See R v M’Naughten (1843) 10 CL & Fin 200; 8 ER 718, (“M’Naughten”), as explained further in the jury directions provided by Dixon J in The King v Porter (1933) 55 CLR 182; [1933] HCA 1, (“Porter”).

6. As further explained by Dixon J in Porter, it is presumed that a person is of sufficient soundness of mind to be criminally responsible for his (or her) actions until the contrary is made to appear at trial.

7. Two experienced and eminent forensic psychiatrists, Dr Adam Martin and Dr Jonathon Adams, each independently reached the view that the defence of mental illness was available to the appellant. They set out their reasons for that conclusion in comprehensive reports prepared in late 2018 and in the oral evidence they provided to assist the Court on 18 May 2020. They concluded that the appellant was suffering from schizophrenia manifesting in persistent persecutory delusions, thought disorder, disorganised behaviour and distress.

8. The trial judge, Marien SC ADCJ, who heard the matter without a jury, was not satisfied that mental illness was made out and convicted the appellant of both charges.

9. There are three grounds of appeal, which are interrelated but not interdependent:

1. His Honour’s intervention in the conduct of the trial was excessive, giving rise to procedural unfairness or an apprehension of bias and caused a miscarriage of justice.

2. His Honour applied the wrong test in determining that the appellant had not established that he was mentally ill at the time of the alleged offence.

3. This Court should determine that the appellant was mentally ill at the time of the offences in accordance with s 7(4) of the Criminal Appeal Act 1912 (NSW).

10. For the reasons that follow, I have reached the view that grounds 2 and 3 are made out. As to ground 1, while I agree that his Honour’s intervention was excessive and inappropriately so, I am not satisfied that it was productive of procedural unfairness or founded a reasonable apprehension of bias such as to result in a miscarriage of justice. The experts maintained their soundly based opinions in their oral evidence, despite interruptions and cross-examination by the trial judge. This persistence on their part, and the re-focusing on relevant issues by both counsel at trial, in end effect protected the trial from his Honour’s excessive interventions. The problem with the trial and the basis of many of his Honour’s interventions was his Honour’s misapprehension of the test in M’Naughten and his misapplication of it to the evidence. That is why grounds 2 and 3 must be upheld and the appellant’s convictions quashed.

Summary of the case at trial

11. The trial commenced on 22 October 2019 with the tender of the Crown brief of evidence. Whilst in no way binding on the trial judge, the following observations were made by the Crown Prosecutor in respect of the accused’s mental illness defence: “The defence is available - the expert opinion is unanimous on that point”, “it doesn’t seem to be in question that Mr Masters suffered from schizophrenia and the symptoms were florid or active at the time” and “both the defence and Crown psychiatrists were of the opinion that he would not have appreciated the moral wrongfulness of his acts”.

12. Within that tendered Crown brief prior to and separate to the assessments by Dr Martin and Dr Adams was sworn evidence of observations of acquaintances and family members as to strange behaviour the appellant was exhibiting in the period just before 22 September 2017. Also in the Crown brief was reference to the known 2011 diagnosis of schizophrenia made when the appellant lived in Queensland, including periods of involuntary admission to hospital. Covered in the treatment notes post collision are a number of clinical assessments made by psychiatrists and psychologists who treated the appellant in the weeks and months after the collision.

13. Commencing with the clinical material, treating Neuropsychologist, Dr Connie Roberts, assessed the appellant on 7 and 8 November 2017 at the Mid North Coast Brain Injury Rehabilitation Service. She noted:

“History obtained from family indicated that Mr Masters had suffered a breakdown six years earlier in the context of significant stress and the breakdown of his relationship. Since that time he had demonstrated ongoing paranoia in relation to bikies.”

and:

“Mr Masters was reviewed by mental health CNC Shane Fletcher on 17.10.17 who noted ongoing paranoid ideation in relation to bikies. Mr Masters denied any thoughts of self-harm or suicide but acknowledged significant stress prior to the accident. Ongoing monitoring by mental health including psychiatric assessment was recommended.”

14. Dr Roberts noted that on interview:

“…. He engaged readily in the interview and cognitive testing and there were no indications of paranoia or delusional thinking until later in the second session when he spoke about being pursued by bikies and reported the same ideas as he had previously spoken about with other staff.”

15. A Psychiatrist, Dr Hughes, interviewed the appellant on 16 November 2017 at the Wauchope District Memorial Hospital. In a long assessment and treatment plan note, Dr Hughes’ impression was of psychosis - delusional disorder. He recorded the following:

“Delusions experienced by Nick

Around his ex-wife being with a bikie and being followed since then by bikies see previous notes around this.

He asked the Psychiatrist around Compound cysto Testosterone?? States a female hormone? State there was an episode where someone broke into his house he is convinced that it was the bikies and that they spiked his white wine and put this hormone in it. That he took it to a lab and it was tested and the results came back that it had been tampered with and that it had this compound testosterone in it. When used in a male that there can be gut problems and palpitations, we discussed this could be anxiety the palpitations but he could not see this or consider this.

He stated that the day he left QLD he turned his phone off so they couldn’t track him moving down here.

He paid cash for a hire truck, used a different email address to order it, states he was trying to cover his tracks and self.

They know Jess's licence number and he used her licence number to get a new phone so they couldn’t track his phone easily. he states that when calls are answered there is a delay in the answer and that there is recording and odd sounds, he knows that the bikies have tapped into his phone.

He states one day he drove to Coffs harbour to get a phone whilst living here so they couldn’t track him, that he had his phone off the whole time and he went to the phone shop in Coffs harbour and got a phone. He then turned it on and once he did he believed that someone involved with the bikies then walked in the shopping centre - he feels they were already in the building waiting for him and then when he turned the phone on it bounced off the Telstra towers and they were able to locate him.

Stated in QLD he had cameras up in the rental he got after his wife, and he saw a guy running past his house in jeans at 1100am in the morning and stated it was a bikie.

We did question him why have they not harmed or killed him yet if this is what they are capable of. he does not know and has always asked himself this question. But still remains to believe that bikies are after him and have been for years.

We briefly touched on the issues and incidents that have occurred since he has moved here in regards to bikies.

The pool incident, gymnastics, the GP, this has all been documented before.

He then asked the Psychiatrist if the Dr could have been hired from bikies to know what to do to lead him to a psychosis to then have a poor sleep, spike his drinks and lead to a car crash and end up in a legal situation.

Dr advised that he has no lies to bikies or organised crime that he has no need to accept bribes to make up diagnosis etc.

After long conversation and advising of impression of psychosis delusional disorder and medication we ended the interview. Psychiatrist stated he had to get going to Coffs Harbour - this then made Nick concerned to where he asked if Dr Hughes worked at Coffs Harbour - to where he advised he didn't but he had a patient there that he had to see. Nick not sure about this, looked worried and suspicious look.

Appearance: thin man looks stated age, brown hair with some thinning wearing a black t shirt and navy shorts no shoes, tanned skin with multiple scarring from accident, some muscular in arms

Behaviour: calm cooperative, good eye contact, good engagement and laying in bed on side

Speech: normal tone time volume and tale

Mood: states yeah ok

Affect: labile at times flattened then reactive, then guarded when discussing delusions

Thought Form: illogical around bikies until you speak about that logical and sequential. But becomes illogical and circumstantial with bikie talk

Thought Content: a lot of fixation around bikies, no thoughts of self harm no thoughts of harm to others and no thoughts of suicide nil plan or intent.

Paranoia around government police and bikies, suspicious of same

Perception: denies voices

Cognition: orientated to time pace and person

Insight & Judgement: nil insight into psychosis and delusional disorder, poor judgement as unable to see has illness. But willing to take olanzapine

Consumer view of progress:

Patient does not believe that he is psychotic, or that he has a delusion around bikies.

Assessment of Risks

Suicide:

States no past history of suicide, states no current thoughts of suicide and nil plan or intent. Protective factors of children.

However unclear around events leading up to MVA as patient does not recall.

Self Harm:

States no past history of this, states no current thoughts or plans of this. However patient does not recall self harming event prior to MVA. There is a definite self harm scar on left wrist.”

Violence:

States no past history, no past AVOS, no current thoughts. Even with delusions around bikies no thoughts of wanting to harm them

Vulnerability I harm from others:

Some level of vulnerability due to bed ridden and mentally ill

Delusional around bikies and fixated that people are linked in with the bikies etc

Absconding (if inpatient):

low as patient wanting treatment for medical issues and unable to walk at this point in time

Risk to children aged under 18 years:

has two children however they aren't currently in his care but he did have sole custody of children

Impression and Plan:

Impression and this has been discussed with Nick from Psychiatrist Dr Hughes.

Psychosis – delusional disorder.

Nick was advised what psychosis was and explained what this meant, explained that part of psychosis is a delusion. That delusions are unshakeable and fixed.

Nick nil insight into this and not believing this is what he has

Discussion around the need for medication was discussed

Olanzapine 10 mg nocte was suggested and documented on medication chart by psychiatrist. Also Zolpidem was ceased as per Dr Hughes he has also done this.

Nick was agreeable to take Olanzapine and we discussed the uses of it, side effects and what medication it was and why we are using it. Advised will also assist with sleep and hopefully will dampen delusional thoughts down.

We discussed that if he will not comply with oral medication that there are injectable medications that can be used

Also we advised the need for treatment, if not voluntary can be made involuntary and a Community Treatment Order can be arranged for needing to comply with treatment. All of this was discussed with Nick.

We also spoke about legal obligations for potential charges and the need for treatment for psychosis. He was aware of this and was willing to try medication even though he does not accept psychosis diagnosis.”

16. In the Discharge Summary from the Wauchope District Memorial Hospital authored by Dr Avery, Rehabilitation Consultant, dated 26 November 2017, the following is recorded after items “1. MVA with multiple fractures”:

“2. Traumatic brain injury

- Patient memory and recall fluctuant on 19/10- ie could not recall had pelvic/hip fracture

- Diagnosed with PTA > 7 days consistent with severe TBI and accepted for Lifetime Care Dr Avery (Rehabilitation consultant).

“3. Delusional disorder

- Persistent delusion which affected activities prior to the accident regarding motor cycle gangs watching his family.

- Superficially stable emotionally, but delusions are long held, and part of conversation.

- Uncertain whether potential suicide attempt prior to accident secondary to psychotic episode.

- Seen intermittently by CNC psychiatry & finally psychiatrist.

- Seen by neuropsych assessment on 7+8/11/17 -> formal report attached below.

- Reviewed by psychiatrist – assessment attached below.

- Commenced olanzapine, refused after a few days due to concern it was causing hair loss. Advised unlikely but still refusing.

- Switched to risperidone on advice of psychiatrist”.

17. In the Royal Rehabilitation Centre Sydney Progress Notes on 30 November and 7 December 2017, Dr Illchef, Psychiatrist, and Dr Sandhu, Psychiatry Registrar, have recorded this history:

“Nick reports he had just finished a course he was doing (Certificate 3 course in road building) and the children were in school. He was unclear of the actual events that had taken place but vaguely recalls scratching his wrists the morning of the accident. He denied ever having any prior suicidal thoughts but believes he must have been if he was doing that. He then remembers the television was switched on and saw that it was the police sergeant who years ago was involved in a conspiracy against him years ago “I then heard a voice behind the television of a child”. He is unable to recall any further but was informed by the police that his children had come back home and his son had found him in the bath tub with blood over his wrists. He believes this was when he got into the car and drove possibly to the hospital. “I think they found me here, I have been worried about the bikies”. “If only the police would just do their job”. “If they show up again I’ll take some photos of them.”

18. Under that part of their assessment headed “Past Psychiatric History”, Dr Illchef and Dr Sandhu set out the documented prior symptoms of mental illness and the 2011 diagnosis of schizophrenia for which he was no longer being treated:

“A discharge summary from Atherton Adult CMHS reports Nick presented with symptoms of paranoid ideation. These included external parties such as police and others breaking into and bugging his home, following him with intent of killing him. Nick was suspicious and guarded in his responses and was admitted for 7 days to the Cairns MH unit. It is stated just prior to the presentation Nick had separated from his wife Andrea who moved out and took his two children and one step child, this distressed him and was unable to accept the decision. Nick was discharged on an involuntary treatment order with a medication regime of 3 mg of Risperidone.

Nick was case managed by the Atherton Adult Community Health but was very reluctant to engage. He continued to contact the local police with regards to his paranoid ideation. He was made a voluntary patient after a review with Dr Stephenson on the 1st of September 2011. He presented well and denied any paranoid thoughts or stressors. The Risperidone dose was reduced to 1.5mg. He refused to engage with the local CMHT and he was aware that he was within his rights to do so as a voluntary patient. Nick had then sent a very long email on the 13th of September detailing the events that had led to his admission in July. Nick was discharged back to the care of his GP on the 11th of November due to lack of engagement with the CMHT.

Nick reports since then he has had multiple incidents involving the bikies. He had sold the house he was originally staying in and moved. He had camera’s set up all over his new house and did not tell people where he was living or where he was before. He reports functioning and also working in that time frame. He also got sole custody of his two children last year and eventually moved to Port Macquarie this year.

Nick denied any further involvement with Mental Health services and had not been on any medications till currently. Nick denied any prior history of depressive or manic symptoms. He denied any past suicidal ideation or suicide attempts.”

19. Dr Illchef and Dr Sandhu concluded:

“Impression: Nick is 42 year old male who has a background history of a delusional disorder with entrenched delusional ideas. He was treated with antipsychotics but disengaged with mental health services and treatment that has led to ongoing psychosis. He was likely psychotic at the time of the offense whereby he described having on going paranoia about the bikies following him to Port Macquarie and making references to the same police officer on the television who was involved in the conspiracy against him years ago. This may have been the precipitant to the self harming incident which appears to be psychotic driven. He appears to have had chronic delusions in the past 5 years that has not been treated. His mistrust towards health services, chronic untreated delusional beliefs, ongoing psychosis suggests high risks of further harm to himself either through misadventure and risks to others. There is also a possibility of a decline in his functioning considering his ability to maintain work. There is possibility he has chronic paranoid schizophrenia that has gone undertreated. Currently he is reluctant to adhere to medications which suggests a very limited insight. This increases his risks of causing harm to others or himself. His children are at risk of being neglected and develop psychological stressors themselves

Plan

1) Dr Ilchef has recommended that Risperidone is increased to 4 mg nocte. Advised option of being depot treatment – Nick refused this at this stage

2) Will need to organise for an in patient treatment or Community mental health order on discharge with view of being of being on depot antipsychotics.

3) Will review again next week.”

20. In the Multi-disciplinary Discharge Report from the Royal Rehabilitation Centre, an entry from Ms Dos Santos, Clinical Psychologist, dated 20 December 2017 noted the following:

“NICK MASTERS

PSYCHOLOGICAL HEALTH & BEHAVIOUR

Current status

Mr Masters was seen by the psychology service in order to review mood/adjustment to injury as well as to assess if Mr Masters' mental health may be impacting upon his rehabilitation. Mr Masters described a long history spanning over 6 years with regards to being followed and targeted by 'bikie gangs' following the breakdown of his marriage at the time. He had a hospital admission within a psychiatric unit approximately 6 years ago, commenced on Risperidone at the time, and was followed up by the local Community Mental Health Team for approximately 3 months. Mr Masters reported that at no time did these beliefs regarding 'bikie gangs' reduce. Although reluctant, Mr Masters commenced Risperidone during his admission here at Royal Rehab. He was well engaged in psychological therapeutic interventions, and was willing to start implementing some strategies with regards to reducing the distress caused by

experiences.

Mr Masters presents with features consistent with a Delusional Disorder, and although reluctant to accept treatment with psychiatric medications, he was willing to engage with psychological interventions. He did not present with any suicidal ideation or self-harm thoughts, however at times he displayed hopelessness regarding how he may live his life being followed all the time. He continued to progress with his rehab goals in improving his mobility, however his mental health significantly impacts his future prospects.”

21. Ms Dos Santos also made this note of her review on 14 December 2017 in which the appellant was still referring to the persecutory delusions:

“….

Client pleasant and cooperative, engaged throughout session, good eye contact, stating mood was ''not good", affect flat. Client went on to describe a number of stressors relating to papers served by the police (re MVA), court and lawyer dealings (re his children). Client became tearful when describing what had happened to the woman in the other car and remains upset and confused about how it all occurred. Continued delusional thought patterns, client stating ''this hasn't gone away at all." Client described a possibility that the bikie gangs may have had perhaps an influence on him having the MVA.”

22. Also within the brief of evidence was the report of Dr Adam Martin, Forensic Psychiatrist, dated 31 January 2019. He had been asked by the Crown to specifically consider whether the defence of mental illness was available to the appellant. He concluded that it was, explaining that:

1. The appellant has schizophrenia and presents with pre-occupying beliefs that are delusional, involving bikies who he thinks have persecuted him, and that have persisted since 2011.

2. Schizophrenia is a major mental illness of a psychotic type that amounts to a "disease of the mind".

3. Schizophrenia is known to cause significant impairment in a person's thought processes and emotional regulation and is frequently associated with impaired judgement and poor decision-making, such that the appellant's condition would have caused him to have had defects in reasoning, noting particularly his erratic driving in an unintoxicated state while only wearing his underpants, the evidence suggesting he had deliberately self-harmed or attempted suicide just prior to driving, and the observations of his classmates that he was acting strangely in the days before the collision.

4. The appellant was not in psychiatric treatment or taking anti-psychotic medication at the time of the alleged offending.

5. The appellant does not have a significant substance use history, cannot be diagnosed with personality disorder, does not have a significant criminal history or prejudicial developmental history, and appears to come from a supportive and functional family background.

6. While the appellant could not remember the accident, he told Dr Martin that on the day in question he recalls turning on the television and "lo and behold, it's the sergeant from North Queensland, the one who was driving, he's just sitting there in a chair" and the appellant seemed to imply that he thought the police sergeant was corrupt, and that this was evidence of the appellant being targeted. The appellant said "after I saw that on the TV and together with that I'd seen them in the pool two days earlier [meaning believing he had seen bikies whom he thought had been trying to say you can't get away from us]" and "it was just bizarre - cut into regular programming, kids came home whilst I was in the middle of self-harming". When asked about his self-harming the appellant said "I'm guessing I did this out of frustration because they [the bikies] found out where I was living".

7. While the appellant's exact mental state at the time of the collision and his reasons for driving dangerously are uncertain, when viewed in context, his ability to reason with moderate composure would have been significantly compromised as a result of underlying persecutory beliefs.

23. The appellant tendered a report of Dr Jonathon Adams, Psychiatrist, dated 5 December 2018 that concluded relevantly:

1. The appellant had suffered persecutory delusional beliefs lasting several years prior to the collision but before the weeks prior to 22 September 2017 those beliefs had less of an impact on his daily functioning.

2. The appellant was not (currently) prescribed any psychiatric medication or treated by any mental health services.

3. It is likely that the stressors of relocating to Port Macquarie in July 2017 had a deleterious impact on the appellant's mental state.

4. Given the appellant's apparent symptoms of schizophrenia, a disease of the mind, immediately prior to the alleged offence, and evidence of persisting symptoms of schizophrenia soon afterwards, it is reasonable to conclude on balance that he was likely suffering from symptoms of schizophrenia at the time of the alleged offence.

5. The appellant described becoming more preoccupied by his intrusive persecutory delusional beliefs centring on a motorcycle gang, which incorporated referential delusions, such as the likely misinterpretation of someone with a tattoo and a car numberplate. He also referred to the somewhat idiosyncratic event of seeing a previously known police officer on television, which may have been an hallucination or a misinterpretation of a real event.

6. It is reasonable to conclude that the appellant was experiencing persisting symptoms of schizophrenia, namely persecutory delusional beliefs and referential delusions, at the time of the alleged offence, and that he was likely in an agitated and distressed state as evidenced by his act of self-harm shortly before the alleged offending behaviour, and leaving his children unsupervised. It is reasonable to hypothesise that his distressing symptoms of schizophrenia impacted on his decision-making capacity, capacity for rational thinking and judgement such that he endured a "defect of reason" at the time of the offence.

7. Acknowledging the limitations, particularly that the appellant was unable to recall his mental state while he was driving, it is reasonable to suggest that the appellant's symptoms of schizophrenia, impaired decision making and that his level of distress and disorganisation would have deprived him of the necessary capacity to fully understand the moral wrongfulness of the alleged offence and reason with a moderate degree of sense and composure.

24. There was evidence of observations of the appellant’s parents and a TAFE colleague regarding strange assertions made and odd behaviour exhibited by the appellant in the days prior to 22 September 2017. First an email to his father on 13 September:

“--- Forwarded message-----

n: nick mas [REDACTED]

Graham Pocock [REDACTED]

Sent: Wednesday, 13 September 2017, 8:42:55 pm AEST

Subject: news

hey dad , don't know what to tell you, I am so stressed I thought things would be better down here but I was wrong, finally the bikies have identified themselves as the Bandidos. They have started to threaten a lot more obviously now. Wednesday last weak an old couple spotting for them identified me walking to the school to pick the kids up. Since then its the same tactics driving past the door purposely getting cars with extractors to backfire out the front and the back. Thursday and Friday they hired/ or had planes fly overhead for an hour straight twice a day, before they knew where we were there was only 3 flights a day from the local airport. Saturday and today has been terrible, Dale had to swim 200m for his competency swim to get into nippers and 2 of them came in, took of their shirts pointed to their bellies showing FTW tattooed there at 3pm on a Saturday around the kids. Then they have found where I go to the course and driven by a couple times even waving making sure I know they know. Then tonight l took Kira to the local GP clinic to get a referral and a stand over Bikie came in and sat down just opposite us threateningly, I went to the police yesterday, to create a report number. Then when I was picking up Kira at gym, they drove through the kids pick up zone with RAT on the plates. Don't know what to do, wish they had killed me before. Andrea didn't tip them off, she also has spoken to the kids about DEE DEE, (Damiens brother,) before we left, saying "never to tell anyone about him".

I am very worried about a "plant" happening next, something will be found in the flat or the car!!

They found the town from my medicare number, for dales glasses, I gave a false address but they cased the schools then spotted me.

The house is another worry, I wish I could have it back and live in the trees again, there is an offer on it now, I miss it

The course has gone well, I threw the trainer a bbq today (got everyone to chip in) just to say thanks and farewell, as there is only 2 weeks now.”

Followed by an email to his mother a few days later:

“On 16 September 2017 at 19:01, nick mas [REDACTED] wrote:

Yea mum I hope your ok getting a bit worried I haven’t heard from you in a while, I don’t know where to go these days ,I just want to go somewhere safe and the kids be ok, I think its better they go back to their mothers , yea G was nice, wouldn’t mind sticking my head in some hole in the ground for a couple of years if I could get anything.”

25. A TAFE classmate of the appellant, Charles Porter, provided a statement to the police in which he described his observations of the appellant’s behaviour on 20 September 2017 just two days prior to the collision:

“10. During the trip to Grafton, Nick seemed very quiet. I was talking generally about the open day and having to supply a resume. It was during that time that Nick told us he had forgotten to bring his resume with him and seemed very disappointed about that. We arrived at Grafton and started walking around to different stalls.

11. As Caitlin and I were walking around the different stalls, I notice Nick sitting in the corner of the room by himself the latter three quarters of the time there. We would have stayed there for around a half an hour, before getting in my car and driving back again. Nick got in the front passenger seat again.

12. Between the trip from Grafton to Coffs Harbour, Nick was particularly quiet still. I eventually dropped Caitlin off at Coffs Harbour and continued driving towards Macksville. There was little conversation between Nick and I during that time.

13. After some time, Nick started adjusting the volume of the car music up and down. Nick was continually adjusting the music volume to a level which was quite loud for me and then down to a level where I could hardly hear it. I wasn’t sure why he was doing this and didn’t say anything about it.

14. Nick seemed to be writing down notes on a piece of paper also and shaking his head. He would mutter something to himself occasionally. I heard him say things similar to ‘It wasn’t him. It couldn’t have been him.’ When he was saying this, he wasn’t looking towards me.

15. When we arrived at the Caltex service station at Macksville, I stopped my car and waited for Nick to get out. After I had stopped, Nick just sat in the passenger seat with his seat belt on still. It seemed like ages before he turned to me and said, ‘Thanks heaps for this. I appreciate you doing this.’ I said, ‘Don’t worry. You’ll be right mate. No need to worry.’

16. When he said this, I didn’t get the impression he was thanking me for driving him to Grafton and back. As Nick continued sitting in the car, he seemed very intense to the stage I was starting to feel intimidated by his actions. He appeared very confused and not there.

17. He then said something similar to, “I just dunno. Is everything going to be alright?” “Maybe it was him. Do they think that was him?” I continued to listen and assure him that he would be alright. He wasn’t making any sense.”

26. The appellant’s statement to police taken on 14 November 2017 recorded that his last memory before waking up at Port Macquarie Hospital after the collision was parts of the trip home from Grafton with his TAFE colleagues. He stated that he does not recall arriving home from the Grafton trip or anything at all about the day of the collision.

27. A statement of Sergeant Hall recorded that the appellant had left his two young children aged 9 and 11 at home unsupervised after they arrived home from school. Sergeant Hall reported this conversation with the appellant’s 11-year-old daughter:

“…. On entering the unit, I made a number of enquiries about relatives with the children and informed them that their father had been in an accident and was at hospital. I searched for contact number to arrange custody of the children. While contacting relatives we assisted the children to pack some belongings. While speaking with the accused daughter she stated, "Daddy had a cut on his arm and it was bleeding, he said he had to go to the hospital and left." the daughter indicated the bathroom. l looked in the bathroom and saw a wet towel on the floor with a couple of breakfast cereal bars near that. The towel appeared to have blood on it. I also saw blood on the rim of the bath as well as blood splatters on the tiled wall around the bath. It appeared that from the smudge marks I could see an attempt had been made to clean up blood in the bath area….”

28. It was common ground that the appellant was observed overtaking at speed on the wrong side of the road on Hastings River Drive, he then went briefly to the correct side of the road and then suddenly veered to the right again over unbroken double lines into oncoming traffic colliding with Mr Ashenden’s car. Mr Ashenden had little time, if any, to react.

29. Paramedics attended on the appellant at the scene and observed that he was semi­conscious and wearing only a shirt and underpants. They also observed lacerations to his left wrist and a puncture wound to the left side of his chest that was not consistent with an injury sustained in the course of the collision. When asked about this some weeks later, the appellant had no recollection of inflicting those injuries to himself, or of feeling suicidal.

30. A blood sample was taken from the appellant on 22 September 2017 at 6:15pm which detected no substances in the appellant's blood that would have impaired his driving.

31. A report prepared at the Brain Injury Unit of the Royal Rehabilitation Centre Sydney outlined the following post collision treatment course:

1. Following the collision on 22 September 2017 the appellant was admitted to Port Macquarie Hospital where he was found to have "Diffuse Axonal Injury" and multiple fractures and injuries (Diffuse axonal injury is a traumatic brain injury involving the shearing (tearing) of the brain’s connecting nerve fibers (axons) that occurs when the brain shifts and rotates in the skull);

2. He was transferred to Wauchope District Memorial Hospital Rehab Unit then transferred again on 27 November 2017 to the Brain Injury Unit of the Royal Rehabilitation Centre Sydney where he remained until 14 December 2017;

3. The appellant's principal diagnosis was traumatic brain injury, diffuse axonal injury, numerous foci of high signal in the cerebral white matter bilaterally also in the region of the caudate nucleus and basal ganglia on the left, and paranoid schizophrenia;

4. The appellant had previously been subject to an involuntary treatment order at Cairns Hospital for paranoid delusional disorder (in 2011) and during his admission to the Brain Injury Unit he was constantly referring to bikies as the root for his problems;

5. The appellant was discharged from the Brain Injury Unit to the Royal North Shore Hospital Emergency Department as a (mentally ill) scheduled patient under the Mental Health Act 2007 (NSW).

The hearing

32. On 22 October 2019 the trial judge made an order for a judge alone trial which had been requested by the appellant and consented to by the Crown. He invited the Crown to indicate its position on the “M’Naughten defence”. The Crown Prosecutor indicated that the defence was available to the appellant and that the expert opinion was unanimous on that matter.

33. The proceedings were stood over to 1 November 2019 when a different Crown Prosecutor but the same counsel for the appellant, Mr Neild, engaged in some discussion with the trial judge about M’Naughten. His Honour requested written submissions given his stated perception that there was a divergence of views as to the application of that case to offences that do not have intent as one of its elements.

34. The proceedings were stood over to 20 December 2019 but for various reasons the matter was unable to be dealt with on that day and so was set down for further hearing on 21 February 2020 in Sydney.

35. On this occasion his Honour opened with the following remarks:

“HIS HONOUR: Mr Crown, Mr Neild, I have a concern as to whether the psychiatric material that has been placed before me, those two reports, there's the Crown psychiatric report of Dr Martin, and the defence of Dr Adams, give rise to a defence of mental illness.

As we know, under the McNaughton (sic) principles the first consideration is whether at the time of committing the relevant act the accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong. This is obviously a threshold issue before we come to the other issue of course as to whether it constitutes a defence to this offence of strict liability.” [1]

1. Tcpt, 21 February 2020, p 1

36. There was then an exchange with counsel about the expert reports and their conclusions, including both counsel attempting to assist the trial judge as to how they saw the experts’ conclusions as satisfying the relevant test:

“HIS HONOUR: I mean that's what is coming from this report that it was his ability to reason with moderate composure was significantly compromised. Not that he didn't have it or that - what's the language he could not reason about the matter with a moderate degree. These are the words of Justice Dixon. The doctors are saying that ability was compromised.

NEILD: And yet they reached the ultimate conclusion. So in my submission--

HIS HONOUR: Well that's a matter for me, the ultimate conclusion as to whether it does rise to mental illness.

NEILD: Of course your Honour. But the point I'm trying to make is that whatever the precise language used by the psychiatrists, whether they've diverged somewhat from the language of Justice Dixon in Porter or not, the conclusion that they have reached is that because of Mr Masters's mental state and the effect that it had upon his ability to understand the wrongfulness of his actions in the sense of being able to reason with a moderate degree of sense and composure they found that the mental illness defence was available to him.

HIS HONOUR: But they do not say that he did not know what he was doing was wrong. They say his ability to so reason was compromised.

NEILD: In my submission there is a risk of holding each of them too close to the precise words they’ve used as opposed to their ultimate conclusions.

HIS HONOR: Don’t I need to hear from the doctors then. I mean this is an important matter, just to be doing it on the reports. I don’t want to prolong the proceedings.

NEILD: If your Honour indicates that your Honour is unable to find, in relation to the defence, without hearing from the psychiatrists then certainly it would be my application and conscious am I of further delaying the matter. But of course it's in Mr Masters's interests. To give your Honour every opportunity to be satisfied on the balance that the defence is available to him.

HIS HONOUR: Yes. I mean it’s a crucial issue and of course it’s the threshold issue.” [2]

2. Tcpt, 21 February 2020, p 3 (31) to p 4 (18)

37. The Crown Prosecutor also attempted to assist his Honour with the expert evidence and the relevant facts that underpin that evidence:

“STANHOPE: So what flows from that is that the experts who have examined him are making inferences from the surrounding circumstances and other evidence. I think it's worth reflecting on what those circumstances were because the opinions that are expressed to your Honour have to be seen in that background of there being no apparent reason for the accused to cross to the wrong side of the road or to be driving in that way. Your Honour is aware--

HIS HONOUR: Both doctors have suggested and it's speculative, it was an attempt at suicide.

STANHOPE: Yes and that's - so in general in terms of disordered thinking at the time your Honour has the observation—

HIS HONOUR: But that may not have been disordered.

STANHOPE: Well I'll come back to that in a minute. There's the observations of witnesses who were with him in the vehicle travelling to Grafton, some little times a few - I think it's over a week or perhaps more before the actual collision. There are the emails sent to his parents, there are the observations of the ambulance officers attending the scene of a wound to his wrist which can't be accounted for in terms of the actual collision scene. There are the observations of the police officers of blood in the bathroom of his house and a knife on the bathroom sink. The statement reported from his child, his daughter, I believe, to the effect of him having cut himself and having to go to the hospital. So there does seem to be a body of evidence that points to him being in a state of some disturbance in the period of time leading up to the collision and shortly before the collision.

HIS HONOUR: I don't think there is any doubt about that.

STANHOPE:    I appreciate I'm perhaps stating the obvious but I'm just saying it's important I think to understand the opinions that are expressed in the context of that background. Because I read particularly what Dr Martin says at paras 57 and 58, in my submission to your Honour, he has really addressed the test in Porter. Porter was further explained in Sodeman, I'll just see if I can find that reference, I'm not sure if it was included in the submissions. Did your Honour receive the extract from the defence of mental illness?”

38. The Crown Prosecutor then took his Honour to a text book:

“STANHOPE: Well the authors of the text, look at the decision in Porter at paragraph--

HIS HONOUR: Yes at para 6.41.

STANHOPE: That's it.

HIS HONOUR: Yes.

STANHOPE: So there's the definition which I won't repeat to your Honour;

“The important aspect. .. he was doing."

HIS HONOUR: Incapable, incapable.

STANHOPE: Quite, quite incapable, not that he reasoned wrongly or had queer unsound ideas but that he was quite incapable of taking into account the considerations going to rightfulness or wrongfulness.

HIS HONOUR: Well I'm just looking at the direction, referred to at 190, the charge to the jury.

STANHOPE: Yes.

HIS HONOUR: "If you think ... he was incapable"

I don't think there are degrees of incapability are there?

STANHOPE: No, no. My point is if your Honour reads on, "incapable of reasoning ... was quite incapable--"

HIS HONOUR: I see, of taking into account - yes.

STANHOPE: --and consideration.

HIS HONOUR: Yes, quite incapable. Probably the word ‘quite’ is probably not necessary.

STANHOPE: No the experts might say there are degrees. But the point that I’m leading up to is that it was his Honour Justice Dixon returned to the issue in Sodeman v The Queen (1936) 55 CLR at 192 and that's at 6.42.

HIS HONOUR: Yes.

STANHOPE: And your Honour will see that in the middle of that passage his Honour said sets out; "In general it... degree of calmness."

HIS HONOUR: "Impossible."

STANHOPE: "Impossible."

HIS HONOUR: The opinions before me are that it was compromised not that it was impossible.

STANHOPE: True in relation to the moral quality of what he was doing prevented him from knowing what he was doing was wrong. I think from the Crown's perspective, what Dr Martin is seeking to address at paras 57 and 58, is that on the material that the doctor who has examined, he's come to the view; "That the ability ... underlying persecutory beliefs."

Now I agree with your Honour, he doesn't say there that it would have been impossible.

HIS HONOUR: That he did not have that ability at all.

STANHOPE: Yes but seizing upon the phrase, "His ability to... been significantly compromised."

I think that the expert is providing your Honour with the view, his views, that the degree to which that background, derangement of persecutory belief, is interfering with the thinking, is sufficiently--

HIS HONOUR: But the doctor maybe labouring under a misapprehension as to the defence of mental illness. He maybe mis-labouring, we would only know that if he gives evidence.

STANHOPE: Yes.” [3]

3. Tcpt, 21 February 2020, p 6 (25) to p 7 (49)

39. His Honour adjourned the matter to a date to be fixed to arrange for the attendance of Dr Adams and Dr Martin.

40. I accept the submission of the Crown on this appeal that this was, at least at this stage, an arrangement directed towards providing procedural fairness to the appellant, given his Honour’s indication that he was not persuaded that the opinions of Dr Martin and Dr Adams were sufficient to demonstrate that mental illness was made out.

41. On 18 May 2020 the matter was listed again before his Honour for the hearing of the evidence of Dr Adams and Dr Martin.

42. Dr Adams gave evidence that, as he expressed in his report dated 5 December 2018, (summarised above), the appellant was suffering from symptoms of schizophrenia at the time of the alleged offence, namely persecutory delusions, thought disorder and disorganised behaviour. [4]

    4. Tcpt, 18 May 2020, p 4 (18-20)

43. Dr Adams rejected the proposition put to him by the trial judge during one of his more lengthy interventions that the appellant was acting rationally when he got in his car on 22 September 2017 to “take himself to the hospital”, stating that the appellant "is someone who in my view has seriously decompensated to such an extent that we know that he harmed himself, we know then that he left his children unaccompanied even though he was the sole carer of his children and then engaged in an act that appears to be uncharacteristic with what I know of his behaviour prior so I couldn't say as an expert that that behaviour is rational". [5]

    5. Tcpt, 18 May 2020, p 7 (12-18)

44. His Honour raised with Dr Adams that there was a gap in the evidence about whether the appellant was labouring under a persecutory delusion that he was being pursued by bikies. Dr Adams explained that there was a need to look at what we know in terms of the chronology and that includes "clear evidence" based on his account and others, that the appellant was enduring persecutory delusions prior to the collision and afterwards, so on balance it was Dr Adams' opinion that the appellant was also experiencing those delusions at the time, explaining that persecutory delusions don't suddenly appear one day, go away and then suddenly come back: “We know they’re still there in their thought processes”. [6]

    6. Tcpt, 18 May 2020, p 11 (27-35)

45. Dr Adams explained that he framed his opinion by reference to the appellant's capacity to understand fully the moral wrongfulness of his behaviour, rather than whether or not he knew what he was doing was morally wrong, because from a forensic psychiatric perspective the appellant's understanding is on a spectrum, rather than "purely black and white". Dr Adams gave evidence that on a spectrum, the appellant had some capacity to understand the wrongfulness of his behaviour, but he could not know what he was doing was wrong because he could not reason about that matter with a moderate degree of sense and composure. (emphasis added)

46. Dr Adams further explained that not knowing the nature of the appellant's persecutory beliefs at the time was not fatal to a proper consideration of whether the appellant was capable of considering the nature of his acts, because it is not purely because of the persecutory delusions that he could not reason with a moderate degree of sense and composure. It was because of the “constellation of his symptoms”, “namely persecutory delusions, thought disorder, and disorganised behaviour together with his level of distress”. It’s that combination of symptoms which in Dr Adams’s view, “speaks to his capacity and impaired his capacity”. [7]

    7. Tcpt, 20 May 2020, p 16 (9-15)

47. The Crown Prosecutor traced through with Dr Adams in cross-examination the evidence upon which Dr Adams based his conclusions, namely the fact of the appellant’s 2011 involuntary admission and compulsory Community Treatment Order, the similarity of the nature of the persecutory beliefs he suffered in 2011 involving bikies and police officers, that they continue, the evidence of Mr Porter and the appellant’s strange emails to his parents in the period shortly prior to the collision, the scene at home - the blood from the self-harm attempt and the young children left alone. Dr Adams confirmed that an act of self-harm is consistent with a person who suffers from schizophrenia, that the persecutory beliefs might fluctuate and disorganised behaviour can be present in differing degrees and so the appellant could still complete a 12-week TAFE course and look after his children, despite his difficulties.

48. Dr Martin then gave evidence. He indicated that he agreed generally with the opinion expressed by Dr Adams but stated: "I would be a little stronger I think in saying that I think the evidence is very strong that he was mentally ill". Dr Martin gave evidence that the appellant's appreciation of the wrongfulness of his conduct was "extremely limited" and it was "highly likely to have been informed by symptoms of mental illness and disorder". He explained that the fact that the appellant had driven so dangerously is, in the context of preceding mental illness, consistent with disorganised, erratic and disinhibited behaviour while mentally ill. [8]

    8. Tcpt, 20 May 2020, p 5 (31-33)

49. Dr Martin also clarified that the appellant's completion of a TAFE course shortly before the collision and his capacity to drive were not inconsistent with mental illness. [9]

    9. Tcpt, 20 May 2020, p 22 (36-34)

39. The matter was adjourned to 12 June 2020 for further argument. On that date the appellant made an application that his Honour disqualify himself, on the basis of apprehended pre-judgment and bias. It was submitted that there were three factors, that, when considered together, might give rise to a reasonable apprehension of bias (as per the appellant's counsel's written submissions dated 10 June 2020):

1. Reversal of the issues for determination (at that stage his Honour had not determined that a defence of mental illness was available for an offence contrary to s 52A of the Act and was proposing to decide whether the defence was made out on the evidence before determining the applicability of the defence);

2. The extent, content and manner of his Honour's questioning of the expert witnesses; and

3. His Honour's expression of a fixed view in relation to a number of matters for determination.

51. The Crown opposed the appellant's application, submitting that "your Honour sitting as a judge alone and deciding the issues that have to be decided is entitled to ask questions and to test areas of evidence that give your Honour difficulty" and that "in my view and on reading of the transcript your Honour has not prejudged the issue either in fact nor by the appearance of bias".

52. By judgment on 12 June 2020 his Honour refused the appellant's application. In justifying his intervention in the proceedings, his Honour observed that the “absence of a contradictor” allows for “some leeway being given” to a trial judge in the questioning of expert witnesses and that the questions asked by him was an attempt "to elucidate the reasoning process of the two psychiatrists leading to their opinions that the accused met the second limb of M'Naughten". His Honour concluded that his questioning was justifiable and did not result in a miscarriage of justice. He did not accept that a fair-minded observer would have thought his questioning exhibited bias or pre-judgment.

The Decision

53. On 14 July 2020 his Honour delivered judgment, finding the appellant guilty of both offences. His Honour summarised the Crown case and determined that each of the elements of both offences were proved beyond reasonable doubt.

54. His Honour then went on to consider the defence of mental illness. His Honour held that such a defence was available for charges of dangerous driving under s 52A of the Act and proceeded to consider whether it was established in the appellant's trial.

55. His Honour was satisfied on the balance of probabilities that at the time of the collision the appellant was labouring under a defect of reason caused by disease of the mind, namely schizophrenia.

56. His Honour went on to state that the second limb of the M'Naughten test required "no capacity at all to consider with some degree of composure and reason or with some moderate degree of calmness, the moral quality of what he is doing" and found that the evidence of both doctors did not reach this threshold because the appellant "had some capacity at the time of the collision to consider with some degree of composure or with some moderate degree of calmness of the moral wrongfulness of his actions". Whether this interpretation of the test was correct is a key issue in this appeal.

57. His Honour rejected the opinions of both experts on the basis they could not reach the expressed opinions because they did not know "the precise state of mind of the accused at the time of the collision". His Honour determined that the appellant made a decision to drive to the hospital to seek medical assistance for the cut to his wrist and observed that it was inconsistent with "that rational decision" that the appellant "was so out of touch with reality that he had an extremely limited capacity to understand the moral wrongfulness of the dangerous manner in which he was driving".

58. His Honour also found that an alternative inference that may explain the appellant's driving was that he was making another attempt at self-harm, and his Honour did not accept "that a decision by a person to self-harm necessarily means that the person is incapable of reasoning about the right or wrongness of their conduct".

59. His Honour was therefore not satisfied that the defence of mental illness was established, and found the appellant guilty on both counts of dangerous driving.

Ground 1: His Honour’s intervention in the conduct of the trial was excessive, giving rise to procedural unfairness or an apprehension of bias, and caused a miscarriage of justice

60. It is the appellant's case that the trial miscarried due to a denial of procedural fairness arising from his Honour's excessive intervention in the course of hearing the oral evidence of expert witnesses Dr Adams and Dr Martin, and alternatively, because his Honour's interventions gave rise to an apprehension of bias.

61. The appellant submitted that this ground should be addressed before turning to other grounds of appeal, because it strikes at the validity and acceptability of the trial and its outcome: (Tarrant v R [2018] NSWCCA 21 ("Tarrant") at [7] and [8]).

62. The Court was assisted by the following analysis of the relevant principles in the appellant’s written submissions. The cases in which the issue of excessive judicial intervention has been the subject of consideration are summarised in Royal Guardian Mortgage Management Pty Ltd vNguyen (2016) 332 ALR 128; [2016] NSWCA 88 (“Nguyen”) by Ward JA (as she then was) at [162] to [172). The following principles emerge:

1. A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his or her detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination (Yuill v Yuill [1945] P 15; [1945] 1 All ER 183 (“Yuill”) at [20], referred to at [162]);

2. The demeanour of a witness is apt to be very different when he is being questioned by the judge from what it is when he is being questioned by counsel (Yuill 183 at [20], referred to at [162]);

3. The judge's part is "to hearken to the evidence", only himself or herself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure (Jones v National Coal Board [1957] 2 QB 55 at [63] to [64], referred to at [163]);

4. The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and "into the perils of self-persuasion" (Galea v Galea (1990) 19 NSWLR 263 (“Galea”) at [281] to [282], referred to at [164]);

5. Greater latitude in questioning and comment will be accepted where a judge is sitting alone (Galea at [281] to [282], referred to at [164]);

6. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions (Galea at [281] to [282], referred to at [164]);

7. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed to permit the judge to better comprehend the issues and to weigh the evidence of the witness concerned (Galea at [281] to [282], referred to at [164]);

8. From beginning to end the appearance of an impartial and unprejudiced mind on the part of a judicial officer is of the essence of the system of justice. If at any point there is a loss, in fact or appearance, of that impartiality the trial will thereafter miscarry (Galea at 278, referred to at [165]);

9. Excessive judicial intervention by a judge sitting without a jury would give rise to a miscarriage of the trial if, inter alia, the questioning is such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance (the "dust of conflict" ground) (R v T, WA (2014) 118 SASR 382; [2014] SASCFC 3 (“R v T, WA”) at [38], referred to at [166]);

10. Where there has been excessive judicial intervention that compromises the judge's advantage in objectively evaluating the evidence from a detached distance, and the facts, as found, were open to the trial judge, it is impossible for an appeal court to say whether or not the judge's finding in fact proceeded from a clouded, or clear headed, evaluation of the evidence (R v T, WA at [39], referred to at [167]);

11. Whether there has been excessive judicial intervention that compromises the judge's advantage in objectively evaluating the evidence is an objective question measured by an assessment of the degree to which the departure from a judge's traditional role compromises the judicial capacity to objectively evaluate the evidence (R v T, WA at [39], referred to at [167]).

(i) Appellant’s observations as to judicial intervention in the evidence of Dr Adams

63. While his Honour's questioning of the expert witnesses occurred in a judge alone trial without a jury, and commenced when it was clear that the issue to be determined was whether it could be proved on balance that the appellant did not appreciate the moral wrongfulness of moving his vehicle into the path of an oncoming car, the appellant submitted that it could be observed from the summary below that this conduct and questioning by the trial judge created a real danger that the trial was unfair.

64. The questioning of Dr Adams by the appellant's counsel commenced at page 3 of the transcript of 18 May 2020. His Honour took over the questioning at page 4, asking the following questions:

“Doctor, what symptoms of schizophrenia do you believe he was suffering at the time he was driving this motor vehicle at speed having overtaken two sets of vehicles over double unbroken lanes successfully, came back into his on the left and then suddenly moved into the right hand land and there was a head on collision. What symptoms of schizophrenia do you say he was suffering at that time? [10]

10. Tcpt, 18 May 2020, p 4 (10-16)

Do you believe that he was suffering those symptoms 24 hours a day every minute of the day at that time? [11]

But are you not aware that he had just completed a three month TAFE course successfully on construction ... building construction. He had just obtained his Certificate III. He was caring for his children successfully. I'm just trying to understand, he has never suggested that for example, at the time that he was driving he was being pursued by bikies or anybody else. Indeed, he suggested to one psychiatrist having been told in the manner that he was driving that he was probably speeding to get to the hospital and indeed that's exactly what his daughter said that he said as he left the house, that he was going to the hospital? [12]

So what was, excuse the pun, driving him by way of any schizo Freud delusion at the time he was driving? [13]

Sorry, when you say the symptoms, what, did he believe at the time he was being pursued by bikies? [14]

Because the biggest problem is he doesn't recall his state of mind? [15]

But there is material that suggests a perfectly rational explanation of what he was doing, that he was speeding to get to the hospital? [16]

No, it's not an opinion, doctor, that's what his daughter said that after cutting his wrist in the bathroom, he left the house and said "I'm going to the hospital"? [17]

When he was asked about; of course he has not memory but one of the psychiatrists asked him, it may not have been a psychiatrist but one of the health professionals who was consulting after the accident, took him to the driving and he said, "Well, perhaps what I was doing was speeding to get to the hospital". Now, all of that is a rational explanation. It doesn't entail disorganised behaviour, does it? [18]

He was not attempting, he has successfully completed the TAFE course? [19]

What, the turning up the volume, the turning up the volume on the car radio?” [20]

11. Tcpt, 18 May 2020, p4 (22-23)

12. Tcpt, 18 May 2020, p 4 (28-38)

13. Tcpt, 18 May 2020, p 4 (41-42)

14. Tcpt, 18 May 2020, p 4 (50) to p 5 (1)

15. Tcpt, 18 May 2020, p 5 (10)

16. Tcpt, 18 May 2020, p 5 (14-15)

17. Tcpt, 18 May 2020, p 5 (19-21)

18. Tcpt, 18 May 2020, p 5 (24-29)

19. Tcpt, 18 May 2020, p 5 (34)

20. Tcpt, 18 May 2020, p 5 (39-40)

65. At the bottom of page 5 his Honour said to the appellant's counsel, "I will hand it back to you" [21] and the appellant's counsel asked a further five questions confirming Dr Adams' opinion that he could not opine one way or the other as to whether the appellant did not know the nature and quality of the act that he was doing (the first limb of the M’Naughten test). [22] His Honour then resumed the questioning of Dr Adams:

    21. Tcpt, 18 May 2020, p 6 (50)

    22. Tcpt, 18 May 2020, p 6 (3-24)

“But Doctor, armed with the information that he was able to negotiate the vehicle to successfully overtake two vehicles, come back into his lane, overtake another vehicle, wouldn't that suggest to you that he knew what he was doing in the sense that he was fully aware that he was driving a motor vehicle knowing the nature and quality of his act? He was able to successfully manoeuvre the vehicle to overtake two sets of vehicles? [23]

23. Tcpt, 18 May 2020, p 6 (28-33)

This is the account of witnesses who saw him overtake successfully and manoeuvre his vehicle back into his lane? Surely he knew the nature and quality of what he was doing is driving a motor vehicle? [24]

24. Tcpt, 18 May 2020, p 6 (39-41)

But the evidence before me is that he said to his daughter, "I'm driving to the hospital" and then he gets in the motor vehicle? [25]

25. Tcpt, 18 May 2020, p 6 (50) to p 7 (1)

Well, isn't that a rational decision to make? He had injured himself and he said I'm taking myself to the hospital? [26]

No, the decision to go to the hospital, the decision to take himself to the hospital? [27]

Are you aware that he said that at the time that he self-harmed, he was under stress? He doesn't say what stress. He describes the state of the house which he was concerned about but there's also evidence that he was under financial stress at the time and that there was a possibility he may have his house repossessed? [28]

Were you aware of all of that? [29]

Does that impact in any way on your opinion as to him self-harming? [30]

But Doctor and counsel will correct me if I'm wrong, I am unable to see in any of the material that the day of the accident he was labouring under an apprehension that he was being persecuted by the bikies. He does refer to seeing a policeman on the television before he got into the car from Queensland who he thought was corrupt but nothing about bikies? [31]

Most likely was, I'm sorry, Doctor, most likely was? [32]

What delusion, that he was being persecuted by bikies as he's driving the vehicle? [33]

That's a matter of speculation isn't it? He said he was driving to the hospital? [34]

I'm sorry, he said he could have been driving to the hospital?” [35]

26. Tcpt, 18 May 2020, p 7 (5-6)

27. Tcpt, 18 May 2020, p 7 (10-11)

28. Tcpt, 18 May 2020, p 7 (20-24)

29. Tcpt, 18 May 2020, p 7 (27)

30. Tcpt, 18 May 2020, p 7 (30)

31. Tcpt, 18 May 2020, p 7 (38-42)

32. Tcpt, 18 May 2020, p 7 (49)

33. Tcpt, 18 May 2020, p 8 (8-9)

34. Tcpt, 18 May 2020, p 8 (12-13)

35. Tcpt, 18 May 2020, p 8 (17)

66. On page 8 his Honour allowed the appellant's counsel to continue his questioning. [36] The appellant's counsel took Dr Adams to his opinion that the appellant did not have the capacity to understand the moral wrongfulness of what he was doing [37] . His Honour then raised with the appellant's counsel what conduct it was that the appellant did not realise was morally wrong and that it was the appellant's driving at the time of the collision that was the conduct in question. [38] A further discussion ensued between his Honour and counsel about whether the appellant was able to have some capacity to understand the wrongfulness of his actions and still fall within the second limb of the defence of mental illness, [39] after which his Honour started questioning Dr Adams again, asking the following:

“Doctor, do you believe he had some capacity to understand what he was doing was morally wrong or no capacity at all? [40]

I mean, I'm looking at your report. You say he did not have the necessary - to fully understand the moral wrongfulness, to fully understand the moral wrongfulness of his behaviour. Now, that suggests he did have some understanding? [41]

And why do you believe he couldn't do that, he couldn't consider it with a moderate degree of composure? [42]

But Doctor, I mean, I know you've said this, I'm just having difficulty in understanding how on all the material before me when he has successfully completed this TAFE course, he's looking after his children, that he was subject to these persecutory beliefs 24 hours - well, not 24 hours, his whole waking time. Is it possible-- [43]

But if it wasn't impacting on his behaviour, how does that - on one view he has told his daughter he's going to the hospital. He's successfully manoeuvring the vehicle, overtaking on two occasions. Why was he incapable of calmly considering the situation as to why he was driving like that and how is that related to any persecutory beliefs he had about the bikies when he has never suggested of course that he was fleeing from the bikies or that they were in the back of the car. I am just trying to see the connection between those persecutory beliefs about bikies and his decision to drive a vehicle to the hospital? [44]

But are you saying that he was incapable of [calmly] assessing this? If you 're not able to say how it was affecting his behaviour, how can you say that he was incapable of calmly assessing the situation?” [45]

36. Tcpt, 18 May 2020, p 8 (26)

37. Tcpt, 18 May 2020, p 8 (30) to p 9 (5)

38. Tcpt, 18 May 2020, p 9 (7) to p 10 (8)

39. Tcpt, 18 May 2020, p 10 (25-44)

40. Tcpt, 18 May 2020, p 10 (46-48)

41. Tcpt, 18 May 2020, p 11 (1-4)

42. Tcpt, 18 May 2020, p 11 (15-16)

43. Tcpt, 18 May 2020, p 11 (22-26)

44. Tcpt, 18 May 2020, p 11 (37-45)

45. Tcpt, 18 May 2020, p 12 (1-3)

67. His Honour briefly handed the questioning back to the appellant's counsel on page 12, [46] only asking one further question about the level of the appellant's capacity to understand the wrongfulness of his acts, [47] but resumed questioning Dr Adams on page 14, asking the following:

    46. Tcpt, 18 May 2020, p 12 (8)

    47. Tcpt, 18 May 2020, p 12 (44-45)

“Doctor, the material has disclosed the accused describing different forms of or different types of persecutory beliefs but not all exactly the same? [48]

48. Tcpt, 18 May 2020, p 14 (3-4)

Don't you need know exactly what was the persecutory belief he was labouring under at the time he driving to give evidence about this and of course the problem is he's got no memory of his state of mind? It may not have been a persecutory belief that deprived him of the ability to calmy consider the situation, isn't that right? [49]

49. Tcpt, 18 May 2020, p 14 (7-11)

The persecutory delusion may be that they were riding up and down his street where he lived at the time? [50]

50. Tcpt, 18 May 2020, p 14 (16-17)

Well, how would that deprive him of calmly considering what he was doing while he was driving the vehicle? [51]

51. Tcpt, 18 May 2020, p 14 (21-22)

Well, we don't know but you would agree - - that the nature of the persecutory belief at the time is highly relevant and we just don't know if he did, what it was. [52]

And we also know that he was able to successfully complete a Certificate Ill in TAFE in building construction, he was looking after his children? [53]

119. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [7]–[8] (Ebner)

(xi)       the fair-minded lay observer is not presumed to reject the possibility of pre-judgment of a matter, otherwise an apprehension of

          bias would never arise in the case of a professional judge; [120] however,

120. British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [145] (British American Tobacco); Livesey at 299

(xii)      interventionist comments or conduct by a judge will not unilaterally create an apprehension of bias in the mind of the

          reasonable lay observer, who is taken to understand that such interventions are often motivated by the judge’s desire to

          understand the evidence and to advance the trial process; [121]

121. Concrete Pty Ltd v Paramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [4]; Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44 at [103]

….

(xviii)   the fair-minded lay observer will not act on “insufficient knowledge”, but will “inform himself [or herself]” of the relevant

         circumstances, without making “snap judgments”; [122]

122. S&M at 380–381; AB v Director of Public Prosecutions (NSW) [2016] NSWCA 73 at [21]

(xix)    the judge’s own view about his or her ability to decide the case independently and impartially, as recorded in any reasons for

         dismissing a recusal application, carries little weight in the fair mind of the hypothetical lay observer, [123] although

(xx)    statements in a recusal judgment regarding factual matters, including the particular context of the comments or conduct in

        question, may be relevant; [124]

(xxi)    the fair-minded lay observer would not reasonably apprehend bias on the part of a judge from a short and emotional exchange

         taken out of context and weighed in isolation; [125]

(xxii)    the fair-minded lay observer will have regard to the cumulative effect of comments made by a judge and not to particular

          individual statements removed from their context; [126] and

(xxiii)    subsequent statements made by a judge, following the comments or conduct said to give rise to a reasonable apprehension of

          bias, may indicate that an earlier expressed statement or impression was not final or that the judge had not committed to a

          particular point of view.” [127]

123. British American Tobacco at [309] and [331]

124. CUR24 v Director of Public Prosecutions (NSW) (2012) 83 NSWLR 385; [2012] NSWCA 65 at [35]–[42]

125. Galea v Galea (1990) 19 NSWLR 263 at 279E

126. AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236 at 254–255; [2011] VSCA 425 at [67]–[68]; Chamoun v District Court of New South Wales [2018] NSWCA 187 at [46]

127. Tarrant at [13]

113. What the circumstances at the appellant’s trial demonstrate is an incredulous judicial officer who deployed interruptions, a dismissive attitude, an occasional loud voice and/or an incredulous tone in the context of a robust exchange with professionally qualified expert witnesses. There was no jury to be influenced. He had forewarned counsel some months before of the difficulties he had with what he saw as inadequacies in the experts’ written reports. The interventions, founded on a misconception of the correct test, were excessive and misguided, but did not in my view amount to circumstances where a fair-minded lay observer might reasonably apprehend on the basis of what occurred, that his Honour had departed from impartial decision-making.

114. In this unusual situation, the hypothetical reasonable observer would, in my view, have an understanding that the judge thought the experts were off track and that he was, perhaps over-zealously but in the absence of any contradictor, trying to have them address what he thought was the correct test, and to robustly test their views and ensure that they had considered everything. This situation does not amount to apprehended bias in all the circumstances. The “bias” ground is not sustained.

115. Ground 1 of the appeal is therefore not made out.

Ground 2: His Honour applied the wrong test in determining that the appellant had not established that he was mentally ill at the time of the alleged offences

(i) Appellant’s submissions

116. Whether the appellant was mentally ill was to be determined according to the “M'Naughten Rules”:

“To establish a defence on the ground of insanity it must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong.”

117. The second limb of the M'Naughten Rules allows that the defence of mental illness can be established if a person fails to understand, in a deep and considered sense, the moral wrongfulness of his or her acts (Carter v R [2019] NSWCCA 11; [2019] ALMD 4087 ("Carter") per Button J at [300], affirmed in TA v R [2019] NSWCCA 145 per Walton J at [18]).

118. The appellant submitted that his Honour applied the second limb of the M'Naughten Rules as if it required the appellant to prove, on balance, that he was "incapable" or "quite incapable" of reasoning as to the wrongfulness of his acts, or that it was "impossible" for him to so reason. His Honour stated the test as follows:

“Of course as I have sought to explain from the authorities, the threshold to establish the second rule in [M'Naughten] is that the accused had no capacity at all to consider with some degree of composure and reason or with some moderate degree of calmness, the moral quality of what he is doing.”

119. This is also clearly reflected in his Honour's exchanges with counsel regarding the nature of the test.

120. His Honour found that because the opinions of Dr Martin and Dr Adams implied that the appellant "still had some ability or capacity to understand or appreciate the wrongfulness of his actions" the defence was not established. This was an error.

121. The appellant submitted that his Honour relied on selected and incomplete passages from Dixon J's summing up to a jury in Porter at [189] to [190] to arrive at the test that the appellant must show he was incapable or quite incapable of reasoning as to the moral wrongfulness of his act. His Honour did not however refer to the following passage from Dixon J's summing up (at [189] to [190]):

“The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.”

122. The appellant argued that this passage makes it clear that the test is not one of the appellant being incapable of reasoning as to the wrongfulness of his actions, but being unable to reason as to that matter with a moderate degree of sense and composure. It was the test applied by each of Dr Martin and Dr Adams (see for example Dr Adams' report at p 16, Dr Martin's report at [57]).

123. A further problem highlighted by the appellant was that although his Honour also referred to Dixon J's observation in Sodeman at p 215 that "[i]n general it may be correctly said that, if the disease or mental derangement so governs the faculties that it is impossible for the party accused to reason with some moderate degree of calmness in relation to the moral quality of what he is doing, he is prevented from knowing that what he does is wrong", his Honour ignored the entirety of the relevant passage in Sodeman where Dixon J observed at p 215 to 216 that the test was not as simple as a question of impossibility of reasoning, as follows:

“The alternative test of irresponsibility in the formula already quoted from M'Naughten's Case is stated with a false appearance of simplicity. When a derangement of the mind manifests itself only intermittently and in acts of passion, frenzy or the like, the question whether the party accused labours under such a disease of the mind that he did not know that what he was doing was wrong may well provoke in response two further questions-namely, what is meant by "know," and, at what stage in the course of his progress towards the commission of the acts charged must capacity to know cease? In general it may be correctly said that, if the disease or mental derangement so governs the faculties that it is impossible for the party accused to reason with some moderate degree of calmness in relation to the moral quality of what he is doing, he is prevented from knowing that what he does is wrong. In R. v. Davis Stephen J laid down a test expressed more widely, but based upon the necessity of a capacity in the accused person to attain some rational composure. In R. v. Kay Channell J adopted the test formulated by Stephen J Perhaps it was too widely expressed, but it is necessary to remember that it has no application whatever except in cases where there is a disease, disorder or defect of the reason. If that exists, its operation in depriving the subject of a knowledge of the moral qualities of his act must be considered. It is then that it becomes important to understand what degree of capacity to think whether his act is wrong is required. Stephen J directed his observations to that question.”

124. The appellant submitted that the circumstance that he retained some capacity to understand that driving his vehicle at speed into an oncoming car is wrong does not mean he could reason as to the wrongfulness of his acts with a moderate degree of sense and composure. A very young child has some capacity to understand certain actions are wrong but the law of doli incapax recognises that such understanding is insufficient for the child to be liable to criminal punishment. Similar considerations apply in respect of someone who is mentally ill. As recognised by Button J in Carter, it is not enough that a person would appreciate the legal or superficial wrongfulness of what he or she was doing (Carter per Button J at [300]). The question to be determined was whether the appellant understood "in a deep and considered sense" the moral wrongfulness of his acts. The evidence of both experts, as outlined in relation to ground 3 below, clearly established that the appellant did not so understand.

125. It was submitted that his Honour's application of the wrong test was an error of law going to the heart of the issue to be determined. It cannot be said that the convictions were inevitable or that there was no substantial miscarriage of justice. If this ground of appeal is successful the matter should be remitted to the District Court for retrial.

(ii) Crown’s submissions

126. The Crown submitted that consideration of how the second limb of the M’Naughten test should be applied begins with the articulation by Dixon J to the jury in Porter at [189] to [190]:

“I have used the expression 'know,' 'knew that what he was doing was wrong.' We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by 'wrong? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged. In considering these matters from the point of view of fact you must be guided by his outward actions to a very large extent. The only other matter which can help you really is the medical opinion. I think the evidence may be described as his outward conduct and the medical opinion. It is upon this you must act. The medical opinion included explanations of the course of mental conditions in human beings generally.”

127. Dixon CJ, Webb and Kitto JJ in Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56 used similar terms to explain the second limb of M'Naughten:

“For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing.”

128. Miller JA, (Steytler P and Wheeler JA agreeing), in Hone v The State of Western Australia (2007) 179 A Crim R 138; [2007] WASCA 283 at [136] referred to the evidence of a psychiatrist called on behalf of the accused given in a case before a judge sitting alone where a defence of mental illness was relied upon:

“Applying this statement to the present case, it seems to me that Dr Schineanu's testimony made it very clear that, through the disordered condition of the appellant's mind, he could not reason about the question whether his acts were wrong 'with a moderate degree of sense and composure'. The opinion of Dr Schineanu was medical opinion which included 'explanations of the course of mental conditions in human beings generally'. In my view, it was persuasive opinion. It was that, when a certain point of intensity is reached in the psychotic state, there is no capacity for normal reasoning and no capacity for a person to see that what he is doing is wrong. This is exactly the concept that Dixon J formulated in R v Porter.”

129. Capacity is on a spectrum, as explained by Dr Martin. At some point, a person suffering a mental illness may be so mentally unwell, that they no longer are able to reason that their acts are wrong.

130. The Crown referred to s 28(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which now creates a defence of mental health impairment on the basis that an accused did not know that the act constituting the offence was wrong reflecting the common law:

28 Defence of mental health impairment or cognitive impairment

(1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person-

(a) did not know the nature and quality of the act, or

(b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).

131. The Crown submitted that in s 28(1)(b), once again, the incapacity of the accused to know that the act was wrong, is what is required to be proven. A mere impairment, despite the title of the section in the legislation, is not sufficient.

132. The Crown submitted that while the appellant relies upon what Button J said in Carter at [300] and what Walton J later said in TA v R at [18]. Button J in Carter earlier referred to Porter and Stapleton as authorities that were applicable to the case at [36]. So did Payne JA at [19]. The reference at [300] was also relevant to what Button J said later at [314] to [315] regarding the difference between legal wrongfulness and moral wrongfulness.

133. Walton J said in TA at [18], following Button J in Carter at [300]:

“In the absence of contrary psychiatric evidence, a conclusion must be reached with respect to the charges now under consideration, that, at the time of the offences, the appellant was in a manic phase of his bipolar affective disorder and that, in the result, he was not able to reason with a moderate degree of composure at that time. As stated by Button J in Carter (at [300]), "the defence of mental illness can be established if a person fails to understand, in a deep and considered sense, the moral wrongfulness of his or her acts".

134. What both Button J and Walton J referred to was a "failure to understand". Again, this does not speak of “an impairment” but of “incapacity”, and so the trial judge was correct to require proof that the person in question was incapable of reasoning as to the wrongfulness of his act.

135. The Crown also sought to illuminate its argument by comparing the “substantial impairment” defence and submitted that if the test for mental illness is “watered down” inappropriately, it amounts to no more than a “substantial impairment” defence.

(iii) Determination of Ground 2

136. Dealing with the last submission first, the argument was put, as I understand it, to illustrate that it is not sufficient to establish the defence of mental illness to demonstrate only a “disordered mind” or “defect of reason”. That much is true, but is beside the point. Nobody was suggesting that was the test.

137. The reference to s 28 of the new Act is misplaced. Given the savings and transitional provisions of the Act, s 28 has no application to this determination. It appears to be a submission that s 28 informs the wider debate. Again however, the Crown’s submission attempts to add something to the wording of s 28 that is not there - that there has to be “an incapacity” of the appellant to know the act was wrong. That is not what s 28 says nor requires.

138. The test does not require a total absence of capacity. At [23] of the Crown’s written submissions on the appeal, it was submitted that both Dr Adams and Dr Martin were applying the wrong test because the cases do not speak of “impairment” but of “incapacity”. The submission goes on to quote from Sodeman v R (1936) 55 CLR 192; [1936] HCA 75 ("Sodeman") per Dixon J at [215] and [216]:

“When a derangement of the mind manifests itself only intermittently and in acts of passion, frenzy or the like, the question whether the party accused labours under such a disease of the mind that he did not know that what he was doing was wrong may well provoke in response two further questions - namely, what is meant by 'know' and, at what stage in the course of his progress towards the commission of the acts charged must capacity to know cease? In general it may be correctly said that, if the disease or mental derangement so governs the faculties that it is impossible for the party accused to reason with some moderate degree of calmness in relation to the moral quality of what he is doing, he is prevented from knowing that what he does is wrong ... The conditions of irresponsibility must exist at the time when the prisoner commits the acts with which he is charged.”

139. However, this submission overlooks a number of matters. First, the quote from Sodeman set out in [137] above is incomplete and taken out of context. There, Dixon J was discussing the type of questions a jury or judge may pose for themselves, given the “false appearance of simplicity” in the “formula already quoted from M’Naughten case”.

140. Second, the part of Dixon J’s discussion that was omitted from the Crown’s submission, actually illustrates the question raised by the second limb of M’Naughten and that is “what degree of capacity to think whether his act is wrong, is required”. The omitted part refers to some illustrative approaches taken by judges in other cases:

“In R v Davis (3) Stephen J laid down a test expressed more widely, but based upon the necessity of a capacity in the accused person to attain some rational composure. In R. v. Kay (4) Channell J adopted the test formulated by Stephen J. Perhaps it was too widely expressed, but it is necessary to remember that it has no application whatever except in cases where there is a disease, disorder or defect of the reason. If that exists, its operation in depriving the subject of a knowledge of the moral qualities of his act must be considered. It is then that it becomes important to understand what degree of capacity to think whether his act is wrong is required. Stephen J directed his observations to that question.”

141. Third, nothing at all is said in Dixon J’s judgment to suggest incapacity is the test. The question is the “capacity to know”, not a requirement that the person in question prove “incapacity” to know in some absolute sense. His Honour engaged in the same erroneous approach when he interrupted counsel during their questioning of the experts to insist the test was “incapable” meaning “no ability or capacity”. [128]

     128. Tcpt, 18 May 2020, p 10 (46) and following

142. The submission made by the Crown in its written submissions that Dr Adams had “difficulties” in his evidence is a submission that should be rejected. Dr Adams was polite, and attempted on multiple occasions to redirect, politely, his Honour’s attention to the clinical realities and the role of a forensic psychiatrist, as opposed to what his Honour wanted him to address based on his Honour’s erroneous understanding of the matter of which he needed to be satisfied, that is his Honour’s perception that he needed the experts to identify the nature and the effect of a specific identified delusion being experienced by the appellant when he drove into Mr Ashenden’s car.

143. The submission by the Crown that “the most important question”, (posed for Dr Adams by his Honour), was one Dr Adams had “difficulty with” misconceives both the test and the quality and content of Dr Adams’ answers. Ironically it was Dr Adams who redirected the Court to the correct test and concluded with a repetition of those key matters of which he could give evidence based on his expertise as a forensic psychiatrist that underpin why the second limb in M’Naughten was in fact met:

“Q:   Doctor, do you believe he had some capacity to understand what he was doing was morally wrong or no capacity at all? Do we still have the Doctor there?

A:   Yes, No apologies, I was taking time to think. It’s--

Q:   I mean, I'm looking at your report. You say he did not have the necessary - to fully understand the moral wrongfulness, to fully understand the moral wrongfulness of his behaviour. Now, that suggests he did have some understanding?

A:    Yes. In terms of the exact wording of Porter, if I could just remind myself of that, he in my view, he could not reason about the matter with a moderate degree of sense and composure. I'm clear about that and that's my understanding and I'm not a lawyer but my understanding is that that is the wording and I am clear about that from a forensic mental health perspective. Do I think he had some capacity? If we accept that capacity is on a spectrum, I would have to say that he did have some. However, if we go back to the wording that I just read out, I still believe that, that he could not know what he was doing was wrong if he could not reason about that matter with a moderate degree of sense and composure.

Q:   And why do you believe he couldn’t consider it with a moderate degree of composure?

A:   I believe that gives his symptoms of schizophrenia that we’ve already discussed, his persecutory delusions, his thought disorder and his disorganised behaviour.” [129]

129. Tcpt, 18 May 2020, p 10 (46) to p 11 (20)

144. This was later followed by the exchange with Mr Neild where his Honour again misquoted the second limb of M’Naughten test and cut across Mr Neild repeatedly as set out in par [77] of this judgment.

145. Selective, incomplete and out of context quotes from authorities or applications of them by other courts in other cases does not assist the argument. Nor does that approach surmount the hurdle that his Honour’s judgment at p 39 in its final paragraphs sets out an incorrect statement of the test as a reason for rejecting the expert evidence and the submissions of both the Crown and the defence:

“However on all of the evidence before me and taking into account the lack of evidence that at the time of the collision, the accused was disabled or incapable or quite incapable or that it was impossible for him to reason or consider with some degree of composure and reason or with some moderate degree of calmness that what he was doing was wrong”.

146. That overstates the rigour of the test, which does not require that the accused be “disabled” or “quite incapable”. It suffices that by reason of the disease of the mind the accused cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing so that he does not know that what he is doing is wrong. This involves a lack of ability to reason with moderate composure, not a total incapacity to recognise that the conduct is wrong. Ground 2 should be upheld.

Ground 3: This Court should determine that the appellant was mentally ill at the time of the offences in accordance with s 7(4) of the Criminal Appeal Act 1912 (NSW)

147. Section 7 of the Criminal Appeal Act provides for the “Powers of court in special cases”. Section 7(4) now provides as follows:

(4) If, on any appeal, it appears to the court that, although the appellant committed the act or made the omission charged against the appellant, a special verdict of act proven but not criminally responsible should have been entered in respect of the appellant, the court may quash the conviction and sentence passed at the trial and order that the appellant be detained in strict custody in such place and in such manner as the court thinks fit until released by due process of law or may make such other order (including an order releasing the appellant from custody either unconditionally or subject to conditions) as the Court considers appropriate.

148. Before March 2021, when the new Act commenced, instead of referring to “a special verdict of act proven but not criminally responsible should have been entered in respect of the appellant”, it referred to “the appellant was mentally ill, so as not to be responsible according to law for the appellant’s actions at the time when the act was done or omission made”.

149. The appellant argued, correctly, in my view, that this Court’s role, as described by Payne JA in Carter at [13] and [14], is to examine the evidence and to act upon this Court’s view of that evidence. It is not a “de novo” hearing, but the Court can receive further material if necessary and draw inferences from all of the available evidence:

“[13] The sole condition of the exercise of the power in s 7(4) is that it appears to this Court that the appellant was mentally ill at the time the appellant committed the act or made the omission charged. The provision thus confers a power to examine the evidence and to act upon this Court’s view of that evidence in appropriate cases. The operation of the provision is not limited to cases in which the Court finds error or would otherwise quash a conviction or order a new trial under other provisions of the Criminal Appeal Act. It is perhaps in this sense correct to describe the hearing as being “de novo” in that the appellant bears the onus of proving that he or she was mentally ill at the time he or she committed the act or made the omission charged.

[14] On the other hand, the words used in the subsection, “If, on any appeal”, make it plain that the power to quash the conviction and sentence can only be invoked where there is an appeal before the Court. The section involves an appeal based on the evidence in the court below, subject to the power of this Court to permit further evidence to be given in appropriate cases. The power in s 7(4) thus bears some similarity to an appeal by way of rehearing. It is for this reason that the application of s 7(4) is subject to a principle of appellate restraint. This is because this Court is required to give effect to advantages enjoyed by the trier of fact. In the language of Walsh J in Jenkins, “The Court has not the benefit which the jury has of hearing the evidence as it is given and of seeing the witnesses and seeing the accused man himself”. There is no reason in principle why appellate restraint should apply in any different way in a judge alone trial. There may be practical differences in the application of the principle of restraint occasioned by the fact that, unlike a jury, trial judges must give reasons. This principle of appellate restraint explains why it has often been said that cases falling within the power conferred will be of rare occurrence: Mizziv The Queen (1960) 105 CLR 659; [1960] HCA 77; Jenkins at 29; R v Weise [1969] VR 953; R vMatusevich [1976] VR 470 at 476; R v Anderson (1980) 2 A Crim R 379; [1981] VR 155 at 386; Da Pra at [104].”

150. Section 7(4) does not require error to be established on appeal, but rather directs this Court to consider the evidence in order to determine afresh whether the appellant has met the onus of establishing that he was mentally ill at the time of the offence (Carter at [26] per Payne JA and [281] per Button J).

151. On 27 March 2021 the new Act commenced, restating the defence of mental illness in s 28. The new Act does not apply to the appellant's matter on appeal because the question as to whether the appellant was mentally ill at the time of the offence was raised before the commencement of the new Act: (clause 5(1) of Schedule 2 of the new Act). Thus the Mental Health (Forensic Provisions) Act continues to apply until a determination is made as to whether a special verdict should be entered or the defence is no longer being raised: (clause 5(2) of Schedule 2 of the new Act).

152. However, in circumstances where this Court would have found the special verdict of not guilty by reason of mental illness, the Court must instead find the special verdict of “act proven but not criminally responsible” as provided by the new Act: (clause 5(3) of Schedule 2 of the new Act).

153. There is no issue that the appellant has a "disease of the mind" being schizophrenia (report of Dr Adam Martin at [54]; report of Dr Jonathon Adams at p 15).

154. The contestable question is whether this Court would be satisfied on the balance of probabilities that the appellant did not appreciate, in a considered way, the moral wrongfulness of driving his vehicle into the path of an oncoming car.

155. The evidence of Dr Martin and Dr Adams establishes that the appellant could not reason with a moderate degree of sense and composure about whether his acts were wrong.

156. Dr Adams stated in his report as follows (page 16):

“In my opinion it is reasonable to suggest that Mr Masters ' symptoms of schizophrenia, impaired decision-making, and level of distress and disorganisation, would have deprived him of the necessary capacity to fully understand the moral wrongfulness of the alleged behaviour. It must be borne in mind, however, that my evaluation of this aspect has limitations. The main limitation is Mr Masters' inability to recall his mental state while he was driving. On balance, I believe it is reasonable to suggest that his capacity to fully understand the moral wrongfulness of his behaviour, and also reason with a moderate degree of sense and composure, would have been impaired.”

157. He maintained this opinion in his oral evidence.

158. Dr Martin’s opinion was to the same effect as Dr Adams both in his report and in his oral evidence.

159. The Crown submitted that because the appellant was not able to give an account of his mental state at the time of impact, the expert psychiatrists could not come to a concluded view on what his “motivation” was at the time he was driving prior to the impact and both psychiatrists asked themselves the wrong questions in their written reports.

160. This submission misconceives the expert evidence and perpetuates the same misunderstanding of what the evidence needed to show to make out the second limb of M’Naughten that his Honour held. Further, it would be fundamentally unfair in circumstances where the evidence is clear that the appellant has no recollection of what occurred given his head injury and post traumatic amnesia, that he cannot avail himself of the mental illness offence because he cannot recall what he was “thinking” at the time. Any guesses as to what he was “thinking” that he offered to treating doctors and others during his treatment in November 2017 and following are nothing more than guesses.

161. There did not need to be proof of a specific identified persecutory delusion in operation which drove the appellant’s actions and led to the situation that he could not reason about the matter with a moderate degree of sense and composure and understand the moral wrongness of his actions. It was the schizophrenia and its constellation of symptoms that he was suffering that were affecting the appellant at the time he drove into Mr Ashenden’s car. Those symptoms were persecutory delusions, thought disorder, disorganised behaviour and distress.

162. The accident location information and annotated police photos of Hasting River Drive and the direction of the appellant’s vehicle at the time of the collision suggests that the appellant was actually driving away from the Port Macquarie Hospital, not towards it. He had attempted self-harm. He had left young children alone at home with no supervision. He was confused and distressed.

163. The experts’ views, taking into account all those matters and the clinical presentation to the doctors and their assessments of him in the treatment period after the collision, support, on the balance of probabilities, that he was so affected by his schizophrenia symptoms of persecutory delusions, thought disorder, disorganised behaviour and distress, that he was not able to reason with a moderate degree of sense and composure that his act of driving into Mr Ashenden’s car was morally wrong.

164. Accordingly he was mentally ill, so as not to be responsible, according to law, for his action at the time of the offences and so at the trial (under the old Act) there should have been a special verdict of not guilty by reason of mental illness. Pursuant to clause 5(3) of Schedule 2 of the new Act, this Court should substitute special verdicts of acts proven but not criminally responsible.

Evidence relevant to the appropriate orders

165. Affidavits of Ms Psaltis, solicitor for the appellant, sworn 24 August 2021 and 3 March 2022 were read. Those affidavits disclose that in August 2021 the appellant was living in Queensland with his partner and complying with the requirements of the Intensive Correction Order imposed on him by way of sentence. There had been no warnings or breach proceedings for non-compliance. He was working as a building trade assistant and while living in NSW, had worked casually as a labourer. He was subject to a Community Treatment Order requiring an injection of an antipsychotic every three months. He was reviewed every six months by his treating psychiatrist for the purpose of reporting to the Mental Health Review Tribunal.

166. The March 2022 affidavit deposed to the appellant continuing to live in Queensland with his partner, that he remained working three days a week as a building trade assistant and that he remained under the care of a treating psychiatrist for assessment, advice and necessary medication for his mental illness.

Orders

167. I propose the following orders:

1. The appeal is allowed.

2. The convictions of the appellant in the District Court on 14 July 2020 for the offences of dangerous driving causing death contrary to s 52A(1)(c) of the Crimes Act 1990 (NSW) and dangerous driving causing grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1990 (NSW) and the sentence imposed on 20 September 2020 are quashed.

3. In lieu thereof, pursuant to clause 5(3) Schedule 2 of the Mental Health andCognitive Impairment Forensic Provisions Act 2020 (NSW) substitute special verdicts of acts proven but not criminally responsible.

4. Discharge the appellant on the condition that he comply with all requirements of his Community Treatment Order and take medication prescribed to him by his treating psychiatrist.

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Endnotes

p 33 (34)

Amendments

27 October 2022 - Redactions

Decision last updated: 27 October 2022