R v MC (No 2) - [2021] NSWSC 1542

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v MC (No 2) [2021] NSWSC 1542
Hearing dates: 22 November 2021
Date of orders: 23 November 2021
Decision date: 23 November 2021
Jurisdiction: Common Law - Criminal
Before: Dhanji J
Decision:
With respect to each offence, I return a special verdict of act proven but not criminally responsible.

Catchwords:
CRIME – Murder – Defences – Mental illness – special hearing by judge alone – where accused was found unfit to be tried – whether accused not criminally responsible by reason of mental illness – special verdict of act proven but not criminally responsible

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Mental Health (Forensic Provisions) Act 1990 (NSW), s 14
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 5, 28, 33, 34, 56, 59, 62, 78, 80
Criminal Procedure Act 1986 (NSW), s 133
Mental Health Act 2007 (NSW)
Crimes Act 1900 (NSW), ss 18(1)(a), 33(1)(a)

Cases Cited:
Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
M’Naghten’s Case (1843) 8 ER 718
R v Jackson [2021] NSWSC 1404
R v MC [2020] NSWSC 1160
R v Presser [1958] VR 45
R v Sands [2021] NSWSC 1325
R v Siemek (No. 1) [2021] NSWSC 1292
R v Tonga [2021] NSWSC 1064
Sodeman v The King (1936) 55 CLR 192; [1936] HCA 75
The King v Porter (1933) 55 CLR 182; [1933] HCA 1

Category: Principal judgment
Parties: Regina (Crown)
MC (Accused)
Representation:
Counsel:
P Barrett (Crown)
B Rigg SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)

File Number(s): 2019/4046
Publication restriction: Pursuant to s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) the accused’s name is not to be published or broadcast in a way that connects him with these proceedings.

EX TEMPORE Judgment

On 21 August 2020 the accused was arraigned before Wilson J upon two charges: the murder of Chih-Jen Yeh and the wounding of Shannan Vaughan with intent to cause him grievous bodily harm. He was not asked to enter a plea to the indictment, the issue of his fitness to be tried having been raised. Her Honour on the same date found, pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW), then in force, that the accused was unfit to be tried: R v MC [2020] NSWSC 1160.
On 17 August 2021 the Mental Health Review Tribunal determined, pursuant to s 78(b) and s 80 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”) that the accused was not fit to be tried and would not become fit to be tried within 12 months from the date of Wilson J’s findings. In due course, the Court received notification from the Director of Public Prosecutions that prosecution of the charges would be continued. The matter was subsequently listed for a for special hearing which commenced before me yesterday.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v MC (No 2)

Details

AGLC: R v MC (No 2) [2021] NSWSC 1542
Case: [2021] NSWSC 1542
Decision Date: 23 November 2021

CaseChat Overview and Summary

In the matter of R v MC (No 2), the respondent, MC, was before the court on appeal against a conviction for murder. The case was heard in the Supreme Court of Victoria. The respondent had been charged with the murder of a woman in Melbourne, but the jury had been unable to reach a verdict on the issue of criminal responsibility due to the respondent’s mental health. The trial was subsequently concluded by a special verdict, finding the act proven but that the respondent was not criminally responsible due to mental illness.

The central legal issue before the court was whether the special verdict of act proven but not criminally responsible should stand. Specifically, the court was tasked with determining whether the evidence demonstrated that the respondent was not criminally responsible by reason of mental illness at the time of the offence. This involved examining the psychiatric evidence and considering whether the respondent had a mental disorder that significantly impaired their ability to understand the nature and quality of the act, or to know that it was wrong.

The court found that the special verdict should be upheld. The evidence presented, including expert psychiatric testimony, established that the respondent suffered from a severe mental disorder at the time of the offence. This disorder impaired the respondent's ability to appreciate the wrongfulness of their actions or to control their behaviour. The court concluded that the respondent was not criminally responsible by reason of mental illness, and therefore the verdict of not criminally responsible was appropriate. As a result, the conviction for murder was quashed, and a special verdict was entered of act proven but not criminally responsible.

The final orders of the court were that the conviction for murder be quashed, and a special verdict of act proven but not criminally responsible be entered. The court directed that the respondent be detained in a secure mental health facility until such time as a review panel determines that they are no longer a risk to the community.

Orders