R v Barolia (No. 2)

[2021] NSWDC 696

District Court

New South Wales

Medium Neutral Citation:

R v Barolia (No. 2) [2021] NSWDC 696

Hearing dates:

13-14 September 2021

Date of orders:

14 September 2021

Decision date:

14 September 2021

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See [22]

Catchwords:

Crime – Mental Health – Statutory Interpretation.

Whether matter governed by Mental Health (Forensic Provisions) Act 1990 or Mental Health and Cognitive Impairment Forensic Provisions Act 2020; which commenced on 27 March 2021 – Actus reus occurred on 4 December 2019 – Interpretation of transitional provision in Sch 2 clause 5 of 2020 Act.

Legislation Cited:

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Mental Health (Forensic Provisions) Act 1990

Category:

Procedural rulings

Parties:

Regina – Crown
Defendant – Muntaj Bagam Barolia

Representation:

Crown – D. Waldmann (ODPP)
Defendant – T. Kent instructed by National Criminal Lawyers

File Number(s):

2019/00382466

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: It is common ground that the accused seeks a special verdict of “act proven but not criminally responsible” a verdict required by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

2. A preliminary issue has arisen as to what is the relevant law, whether the relevant law is s 38 of the Mental Health (Forensic Provisions) Act 1990 or whether the substantive proceedings are governed by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 which came into force on 27 March 2021.

3. The actus reus occurred on 4 December 2019. Prima facie that indicates that the law applicable is the law existing at that time, that is, the Mental Health (Forensic Provisions) Act 1990 to which I shall hereafter refer to as the ‘old Act’. I shall hereafter refer to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 as the ‘new Act’.

4. It is common ground that there is in Sch 2 of the new Act a relevant transitional provision. Clause 5 of Sch 2 of the new Act bears a heading “Application of new Act to existing proceedings where defence of not guilty by reason of mental illness has been raised”. The substance of the clause is this:

“(1) This clause applies to a defendant in proceedings for offences commenced before the commencement of Part 3 of this Act where a question has been raised before that commencement as to whether the defendant was, at the time of commission of the offence, mentally ill as referred to in section 38 of the former Act.

(2) The former Act continues to apply to the defendant until a determination is made as to whether a special verdict should be entered or the defence is no longer being raised.

(3) In circumstances where the 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.”

5. The current proceedings were commenced by a Court Attendance Notice filed in the Local Court at Sutherland on either 4 December 2019 or the following day, 5 December 2019. The Court Attendance Notice was returnable on 5 December 2019 at 9.30am. The accused was then in custody. The inference to be drawn is that the Court Attendance Notice was filed with the Registrar of the Local Court at Sutherland at some time prior to her appearing before the Local Court on 5 December 2019. The Court Attendance Notice had been created on 4 December 2019 at 4.09pm and had been accepted by a superior police officer at 5.34pm on that day. The courthouse at Sutherland is next to the police station at Sutherland, so the Notice could easily have been transferred to the courthouse early on the morning of 5 December 2019.

6. The question then arises whether a “question has been raised before” the commencement of the new Act on 27 March 2021. If the issue had not been raised before 27 March 2021 then it could only have been raised after that date under the new Act such that the new Act applies. If it were raised prior to 27 March 2021 then the old Act continues to apply until such time as it is determined that a special verdict should be entered. The special verdict that is to be entered is that prescribed by the new Act rather than that prescribed by the old Act. Accordingly, the question raised for my determination is whether a “question as to the defence of mental illness had been raised before 27 March 2021”.

7. On one view of the facts the issue was always present. For example, it is agreed that the actus reus occurred sometime between 10.30am and 11.15am on 4 December 2019. Agreed fact 15 is this:

“At 11.15am, the accused telephoned her husband Mahmood Barolia. She said to him ‘I don’t knew what I have done, I picked up a knife and slashed through his back’ and ‘Blood is coming out, I throw the knife, I don’t know what I have did’.”

There are subsequent facts and statements which indicate that the accused did not realise or know what she was doing at the time of the assault upon the victim, her disabled son.

8. Another relevant fact is that at the time of the offence the accused was 57 years old and the victim, her son, was 26 years old, and for those 26 years the accused had been the principal carer of her son and for many, many, years the de facto sole carer of her son with the assistance of her husband, until relatively recently. That is, the relationship between the accused and the victim was such that one would hardly infer that she meant to harm her son for whom she had spent much of her adult life caring.

9. The Crown submits that the new Act should apply. In [16] of the outline of Crown submissions, MFI1, the Crown submitted that the “question is raised” when evidence comes into existence that would provide an evidentiary basis to leave the defence of mental illness to a prospective tribunal of fact. In the following paragraph of those submissions the Crown submitted, in the alternative, that a “question is raised” when the Crown is placed on notice by the accused that she tends to raise the defence of mental illness.

10. For the purposes of preparing the accused’s defence the accused’s solicitors have qualified Dr Olav Nielssen, a psychiatrist. The letter retaining him bears the date 24 April 2020. Dr Nielssen interviewed the accused by audio visual link on 4 May 2020 and he generated a report bearing the date 6 August 2020. I understand that that report was served at some stage upon the Director of Public Prosecutions. The accused’s solicitors have also retained a forensic toxicologist Dr Michael Robertson. Dr Robertson has prepared a report bearing date 14 July 2020. I understand that that report has also been served upon the Director of Public Prosecutions

11. For the purpose of investigating this issue the Solicitor of Public Prosecutions retained Dr Adam Martin who interviewed the accused on 23 September 2020 and who prepared a report bearing date 25 September 2020.

12. Although the two expert psychiatrists are not ad idem on diagnosis they are ad idem on the issue that the accused is entitled to the special verdict that she seeks.

13. It appears to me that I cannot accede to the Crown’s primary submission that the presence of evidence which would establish a defence of mental illness satisfies the raising of a question. The Crown’s alternative position is the giving of notice to the Crown by the accused. However, I do not understand that any formal notice as such was given, if it were it has not been put before me. However, clearly, the accused’s solicitors served the report of Dr Nielssen and the report of Dr Robertson upon the DPP causing the DPP to retain Dr Martin.

14. I have consulted the records of the Local Court and of this Court. There is no formal notice given to either Court of a mental illness defence being raised prior to the commencement of the new Act. For example, the files disclose that on 10 September 2020 the Local Court at Sutherland committed the accused for trial before this Court. The matter was first before a judge of this Court on 9 October 2020. The presiding judge was O’Brien DCJ. The accused was arraigned on an indictment and entered a plea of not guilty. His Honour then set the matter down for trial on 13 September 2021 with an estimate of five to seven days. His Honour also fixed a readiness hearing on 9 July 2021.

15. The matter was mentioned on 23 June 2021 before Yehia DCJ who confirmed the trial dates, confirmed the readiness hearing on 9 July 2021 and fixed the matter for call over on 9 September 2021.

16. On 9 July 2021 the matter came before the Chief Judge. His Honour noted that the trial was listed for 13 September 2021 with an estimate of seven days. His Honour noted that whether the accused consented to trail by judge alone was yet to be determined. His Honour also noted what the believed to be inconsistencies between the Crown and defence case management forms. His Honour confirmed the pretrial call over on 9 September 2021. His Honour made a large number of other orders consistent with preparing the matter for trial with an estimate of seven days.

17. When the matter came before Yehia DCJ on 9 September 2021 her Honour noted the matter was ready to proceed on 13 September. She noted that there was to be trial by judge alone and that the defence consented to that course. She noted a realistic estimate of one day and noted that the issues at trial were whether there should be a special verdict and the key issue was whether there was a mental illness defence.

18. In other words, it was not stated in any Court until 9 September 2021 that there was a mental illness defence being raised.

19. The submissions of the accused on the applicable legislation, MFI 2, contain this matter in [17]:

“On the very broadest view, a question of whether a defendant was mentally ill at the time of the offence could potentially be ‘raised’ in a number of ways:

(i) when a party obtains material capable, if admitted into evidence, of bearing on the issue of the accused being mentally ill at the time of the offence;

(ii) when a party serves such material on another party;

(iii) when a party files or tenders such material in the Court in which    proceedings are current;

(iv) when a party informally indicates to the other party reliance on a defence of mental illness;

(v) when a party informally indicates to the Court that that party proposes to rely on the defence;

(vi) when a party formally records reliance on the defence as part of the procedural obligations or directions imposed by the Court (e.g. in accordance with obligations and Division 3 of Part 3 of the Criminal Procedure Act 1986);

(vii) when a party opens or closes its case at trial;

(viii) when there is material in evidence at the trial sufficient for the tribunal of fact to return a verdict of not guilty by reason of mental illness.”

20. Learned counsel for the accused then submitted that the first five of those was not sufficient to ‘raise’ the question of the defence for the purposes of clause 5 of Schedule 2 of the new Act. His submissions then contain this matter:

“19. It is submitted that communication between the parties would be an arbitrary and uncertain test for the application of legislation to particular proceedings. It would in essence impose a test based on notice, similar to that found in the provisions of the Evidence Act requiring notice to be given as a pre-condition for the admissibility of certain types of evidence. Clause 5 is not expressed in terms of a requirement of notice. It would arguably require proof by evidence from the party contending that the defence had been raised in that manner.

20. It is submitted that, at the very least, ‘raising’ the question of the defence requires a matter to have been placed on the Court record in some form. It is submitted that an informal indication from the Bar table (for example, in the course of a mention or a directions hearing) is similarly imprecise and uncertain test to determine the application of legislation. It also begs the question of ‘when the defence is no longer being raised’ for the purposes of clause 5(2).

21. The concept and expression ‘raising a defence’ is well-known to the criminal law and most frequently used in the context of whether a particular defence at trial is open on the evidence before the Court. The word ‘raised’ is used in this context in s 29 of the Act. Section 37 deals with raising the issue of the accused’s fitness in proceedings. The section directs that an issue of the accused’s fitness be raised so far as practical before arraignment but provides that it may be ‘raised at any time during the course of the hearing of the proceedings.’ It is submitted that the references to arraignment and the ‘course of hearing of the proceedings’ clearly contemplate that the matter should be raised formally on the record rather than by the parties inter se. The section permits the matter to be raised at any stage - a provision in permissive terms would not be necessary unless raising the issue is confined to raising the issue with the Court.

22. It is therefore submitted that on its proper construction, clause 5 of Schedule 2 requires that the question of the defence be raised formally on the Court record in some manner. A construction whereby a defence is raised by the case management steps set out by Division 3 of Part 3 of the Criminal Procedure Act would provide certainty and consistency with the criminal process for indictable matters. It is submitted that any broad construction would be arbitrary and productive of uncertainty.”

21. Having considered the matter overnight, it appears to me that I should accede to the submissions of the learned counsel for the accused. I am persuaded that an interpretation which favours certainty and consistency is preferable to an interpretation which may lead to an evidentiary contest as to whether the issue has been raised or not. The one exception that I would allow that was not within the interpretation raised by learned counsel for the accused was when a formal notice raising the defence had been served by the accused on the Crown and any other party to the proceedings, obviously such as a co-accused. A formal notice can easily be the subject of proof and in days of electronic communication the proof of the service of a notice is readily available.

22. In the current matter however there is no evidence of any formal notification to the Crown/DPP of the defence being raised and there was certainly no reference to it being raised in any document before the Court prior to the callover before Yehia DCJ on 9 September 2021, I therefore find that the issue was only raised formally on 9 September 2021 and that therefore the new Act applies and there is no need to have recourse to Schedule 2 clause 5 of the new Act.

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Decision last updated: 17 December 2021