R v Gough

[2021] NSWDC 180

District Court

New South Wales

Medium Neutral Citation:

R v Gough [2021] NSWDC 180

Hearing dates:

10 May 2021

Date of orders:

14 May 2021

Decision date:

14 May 2021

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 43

Catchwords:

CRIME - alleged wounding with intent to murder - joint application for special verdict under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) - construction issue of what is the 'defence' that the Court needs to be satisfied is established in s 31(c) - consideration of onus of proof - whether act proven - whether defendant is 'not criminally responsible' - consideration of whether defendant had 'mental health impairment' at time of offending

Legislation Cited:

Crimes Act 1900 (NSW) ss 27, 33

Evidence Act1995 (NSW) s 177

Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW) ss 4, 5, 31, 32, 33, 34

Cases Cited:

R v Presser (1958) VR 45

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Director of Public Prosecutions (NSW)
Mr J Gough (defendant)

Representation:

Counsel:
Ms E Nicholson for the Director of Public Prosecutions (NSW)
Mr J O’Sullivan for the defendant

Solicitors:
David Kelly Lawyers for the defendant

File Number(s):

2017/174683

Publication restriction:

Nil.

Judgment

1. The defendant is charged on indictment that on 11 June 2017 at Wyong (in the State of New South Wales) he wounded David Moorley with intent to murder him, contrary to s 27 of the Crimes Act 1900 (NSW). On the alternative count 2, he wounded David Moorley with the intent to cause him grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW).

Application for special verdict

2. The Crown and Counsel for the defendant agree that the proposed evidence in the hearing establish that the accused has a ‘mental health impairment’ or ‘cognitive impairment’. Those concepts are defined in ss 4 and 5, respectively, of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the ‘Act’), whose provisions commenced on 27 March 2021.

The Statutory Provisions

3. That being so, the Crown and the defendant jointly apply for an order that the Court render a special verdict under s 31 of the Act. Section 31 provides that:

“The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if—

(a)  the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and

(b)  the defendant is represented by an Australian legal practitioner, and

(c)  the court, after considering that evidence, is satisfied that the defence is so established.”

4. In circumstances, such as the present, where there is an alternative charge, s 32 provides that the fact that a court enters a special verdict of act proven, but not criminally responsible, in respect of an offence does not result in a requirement for the court to also enter a special verdict in…