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R v Munday (No 2)

R v Munday (No 2)

Case [2021] NSWDC 628 19 November 2021

Criminal Liability

Mental Health

Statutory Interpretation

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Munday (No 2) [2021] NSWDC 628
Hearing dates: 11 October 2021, 12 October 2021, 13 October 2021, 22 October 2021
Date of orders: 19 November 2021
Decision date: 19 November 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
On each count I return a verdict of a special verdict of “act proven but not criminally responsible.”

Catchwords:
CRIME – Arson - intentionally cause fire and be reckless as to its spread - multiple offences
CRIME- Judge Alone hearing – principles applied
EVIDENCE — Special hearing - Coincidence evidence — tendency evidence –- can prosecutions assert a defendant’s state of mind is relevant when defendant has a significant cognitive impairment?
MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing – defence of cognitive impairment- parties agree defence available- function of Court at trial where s.31 applies- is proof of the mental element of the crime required? - relevant principles discussed –common law principles not changed by new Act and to be applied
MENTAL HEALTH - Special hearing - defendant has a significant cognitive impairment intellectual disability -- defence of cognitive impairment - whether physical acts proved beyond reasonable doubt - tendency – not a coincidence – identification using CCTV- unanimous medical evidence that agreement that defendant did not know the nature and quality of the acts and did not know that the act, as perceived by reasonable people, was wrong – hearing using AVL - assessment of evidence
STATUTORY INTERPRETATION — Repeal and re-enactment – deference of cognitive impairment - plain words of statute - extrinsic aids – no intention to change common law principles

Legislation Cited:
Crimes Act 1900
Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Evidence (Audio and Visual Links) Act 1998 (NSW)
Rural Fires Act 1997
Criminal Procedure Act 1986

Cases Cited:
R v Munday [2001] NSWDC 374
M'Naghten's Case, Re (1843) 8 ER 718
The King v Porter (1933) 55 CLR 182
Stapleton v The Queen ; (1952) 86 CLR 358; [1952] HCA 56
Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28
R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226
R v Tonga [2021] NSWSC 1064
R v Siemek [2021] NSWSC 1292
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Smith v The Queen [2001] HCA 50; 206 CLR 650
Slater v R [2015] NSWCCA 310

Texts Cited:
Introducing the new Mental Health and Cognitive Impairment Forensic Provisions Act 2020, Justice Mark Ierace, Judicial Officer’s Bulletin, March 2021, Vol 33 Number 2

Category: Principal judgment
Parties: Warren Fletcher Munday (the defendant)
Director of Public Prosecutions
Representation:
Counsel:
Ms S Hall (for the defendant)
Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions)
Solicitors:
Morrisons Law (for the defendant)

File Number(s): 2020/00247037

JUDGMENT

Introduction

Warren Fletcher Munday has lived in Hilltop Avenue, Lake Heights his entire…

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 Munday (No 2)

Details

AGLC: R v Munday (No 2) [2021] NSWDC 628
Case: [2021] NSWDC 628
Decision Date: 19 November 2021

CaseChat Overview and Summary

In R v Munday (No 2), the accused, Munday, faced charges related to multiple instances of arson. The case was heard in a court where a single judge presided, and Munday's cognitive impairment was a significant factor. The prosecution needed to determine whether Munday's state of mind was relevant when it was evident he had a substantial cognitive impairment. This was crucial in a scenario where the acts were proved through physical evidence, such as CCTV footage, but Munday's understanding and intent were in question.

The court had to decide whether the prosecution had to prove the mental element of the crime when the defence of cognitive impairment was available and the parties agreed it was applicable. This required an analysis of the common law principles and how they interacted with the statutory provisions under the new Act. The court found that the common law principles remained unchanged and were to be applied as per the statutory interpretation, which did not intend to alter these principles.

Upon evaluating the evidence presented, including unanimous medical evidence that Munday did not understand the nature and quality of his actions and did not know they were wrong, the court concluded that the physical acts were proven beyond reasonable doubt. However, due to Munday's significant cognitive impairment, the court returned a special verdict of "act proven but not criminally responsible" on each count. This decision reflects the court's adherence to statutory interpretation and common law principles, ensuring that the protection of individuals with cognitive impairments is maintained within the criminal justice system.

Orders

Orders of the court

On each count I return a verdict of a special verdict of “act proven but not criminally responsible.”

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Munday (No 2) [2021] NSWDC 628

Most Recent Citation

R v Munday (No 3) [2021] NSWDC 629

Cases citing this decision · 1 of 1 shown

R v Munday (No 3)
[2021] NSWDC 629 Para 2

…ivered my reasons for reaching a verdict on each count of “proven but not criminally responsible" but did not enter the verdicts: R v Munday (No 2) [2021] NSWDC 628.…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

R v Siemek (No. 1)
[2021] NSWSC 1292 Para 22

…This approach was approved in the recent decisions of Justice Wilson in R v Tonga [2021] NSWSC 1064 and by Justice Johnson in R v Siemek [2021] NSWSC 1292. And, these conclusions appear consistent with what is set out in the Act.…
R v Tonga
[2021] NSWSC 1064 Para 22

…This approach was approved in the recent decisions of Justice Wilson in R v Tonga [2021] NSWSC 1064 and by Justice Johnson in R v Siemek [2021] NSWSC 1292. And, these conclusions appear consistent with what is set out in the Act.…
O'Shanassy v Turland
[2021] NSWDC 269 Para 90

…he safety of the defendant or any member of the public will not be seriously endangered by his conditional release: For reasons see R v Munday (No 3) [2021] NSWDC 269.…
Smith v The Queen
[2017] HCA 19 Para 54

…on an earlier occasion and in the AVL link) to the extent that that may assist the resolution of this factual issue: Smith v The Queen [2001] HCA 50; 206 CLR 650 at 654-655 [9]-[11]; Slater v R [2015] NSWCCA 310 at [30]. Identification from a prior ‘in person’ encounter requires special caution be taken, even…
R v Baden-Clay
[2016] HCA 35 Para 5

…The evidence is not to be looked at in a piecemeal fashion: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47] - [50].…
Slater v The Queen
[2015] NSWCCA 310 Para 54

…to the extent that that may assist the resolution of this factual issue: Smith v The Queen [2001] HCA 50; 206 CLR 650 at 654-655 [9]-[11]; Slater v R [2015] NSWCCA 310 at [30]. Identification from a prior ‘in person’ encounter requires special caution be taken, even more so where video images are relied on: s116(1)…
R v Minani
[2005] NSWCCA 226 Para 21

…ncement of the Act, and the submission of both parties: Hawkins v The Queen (1994) 179 CLR 500 at 511; [1994] HCA 28; R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [30]-[32].…
Fox v Percy
[2003] HCA 22 Para 48

…ossible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.” Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.…
Smith v The Queen
[2001] HCA 50 Para 54

…I saw in court on an earlier occasion and in the AVL link) to the extent that that may assist the resolution of this factual issue: Smith v The Queen [2001] HCA 50; 206 CLR 650 at 654-655 [9]-[11]; Slater v R [2015] NSWCCA 310 at [30]. Identification from a prior ‘in person’ encounter requires special caution be…
Hawkins v The Queen
[1994] HCA 47 Para 21

…he mental element of the crime. This is consistent with the law as it stood prior to the commencement of the Act, and the submission of both parties: Hawkins v The Queen (1994) 179 CLR 500 at 511; [1994] HCA 28; R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [30]-[32].…
Hawkins v The Queen
[1994] HCA 28 Para 21

…ent with the law as it stood prior to the commencement of the Act, and the submission of both parties: Hawkins v The Queen (1994) 179 CLR 500 at 511; [1994] HCA 28; R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [30]-[32].…
Stapleton v The Queen
[1952] HCA 56 Para 16

…. It was applied in more modern times in terms as explained in The King v Porter (1933) 55 CLR 182 and Stapleton v The Queen ; (1952) 86 CLR 358; [1952] HCA 56. Section 28(1) incorporates the two limbs of the M’Naghten rules as modified in The King v Porter.…
R v Porter
[1933] HCA 1 Para 16

…lness was first spoken of in M'Naghten's Case, Re (1843) 8 ER 718. It was applied in more modern times in terms as explained in The King v Porter (1933) 55 CLR 182 and Stapleton v The Queen ; (1952) 86 CLR 358; [1952] HCA 56. Section 28(1) incorporates the two limbs of the M’Naghten rules as modified in The King v P…
(1843) 8 ER 718
(1843) 8 ER 718 Para 16

…ibed as an “abnormality of mind arising from an underlying condition.” This defence of mental illness was first spoken of in M'Naghten's Case, Re (1843) 8 ER 718. It was applied in more modern times in terms as explained in The King v Porter (1933) 55 CLR 182 and Stapleton v The Queen ; (1952) 86 CLR 358; [1952] H…

Legislation cited in this decision · 6

Crimes Act 1900 (ACT)
1 mention (from Para 2)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 79)
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
1 mention (from Para 8)
Evidence Act 1995 (Cth)
1 mention (from Para 37)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
1 mention (from Para 3)
Rural Fires Act 1997 (NSW)
1 mention (from Para 25)

Medium Neutral Citation:	R v Munday (No 2) [2021] NSWDC 628
Hearing dates:	11 October 2021, 12 October 2021, 13 October 2021, 22 October 2021
Date of orders:	19 November 2021
Decision date:	19 November 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	On each count I return a verdict of a special verdict of “act proven but not criminally responsible.”
Catchwords:	CRIME – Arson - intentionally cause fire and be reckless as to its spread - multiple offences CRIME- Judge Alone hearing – principles applied EVIDENCE — Special hearing - Coincidence evidence — tendency evidence –- can prosecutions assert a defendant’s state of mind is relevant when defendant has a significant cognitive impairment? MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing – defence of cognitive impairment- parties agree defence available- function of Court at trial where s.31 applies- is proof of the mental element of the crime required? - relevant principles discussed –common law principles not changed by new Act and to be applied MENTAL HEALTH - Special hearing - defendant has a significant cognitive impairment intellectual disability -- defence of cognitive impairment - whether physical acts proved beyond reasonable doubt - tendency – not a coincidence – identification using CCTV- unanimous medical evidence that agreement that defendant did not know the nature and quality of the acts and did not know that the act, as perceived by reasonable people, was wrong – hearing using AVL - assessment of evidence STATUTORY INTERPRETATION — Repeal and re-enactment – deference of cognitive impairment - plain words of statute - extrinsic aids – no intention to change common law principles
Legislation Cited:	Crimes Act 1900 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Evidence (Audio and Visual Links) Act 1998 (NSW) Rural Fires Act 1997 Criminal Procedure Act 1986
Cases Cited:	R v Munday [2001] NSWDC 374 M'Naghten's Case, Re (1843) 8 ER 718 The King v Porter (1933) 55 CLR 182 Stapleton v The Queen ; (1952) 86 CLR 358; [1952] HCA 56 Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28 R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 R v Tonga [2021] NSWSC 1064 R v Siemek [2021] NSWSC 1292 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Smith v The Queen [2001] HCA 50; 206 CLR 650 Slater v R [2015] NSWCCA 310
Texts Cited:	Introducing the new Mental Health and Cognitive Impairment Forensic Provisions Act 2020, Justice Mark Ierace, Judicial Officer’s Bulletin, March 2021, Vol 33 Number 2
Category:	Principal judgment
Parties:	Warren Fletcher Munday (the defendant) Director of Public Prosecutions
Representation:	Counsel: Ms S Hall (for the defendant) Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions) Solicitors: Morrisons Law (for the defendant)
File Number(s):	2020/00247037