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

District Court

New South Wales

Medium Neutral Citation: R v Munday (No 3) [2021] NSWDC 629
Hearing dates: 19 November 2021
Date of orders: 19 November 2021
Decision date: 19 November 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Referred to Mental Health Review Tribunal. Conditional release order. See [37]

Catchwords:
CRIME – Arson - intentionally cause fire and be reckless as to its spread - multiple offences
CRIME - Special hearing - Judge Alone hearing – Person unfit to be tried - verdicts “act proven but not criminally responsible”- consequential orders
MENTAL HEALTH - Criminal proceedings — Person unfit to be tried - Special hearing – defence of cognitive impairment established – consequent orders - is detention necessary?

Legislation Cited:
Bail Act 2013
Crimes Act 1900
Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited:
Attorney General of NSW v X (2013) 235 A Crim R 17; [2013] NSWSC 1392
R v Munday (No 2) [2021] NSWDC 628.
R v Munday [2021] NSWDC 374
R v Siemek [2021] NSWSC 1292
R v Siemek (No. 2) [2021] NSWSC 1293
R v Tonga [2021] NSWSC 1064

Texts Cited:
COVID-19 (coronavirus) Response, Corrective Services NSW;
Category: Consequential orders
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

In 2020 Warren Fletcher Munday was arrested and charged with a number of counts of intentionally causing a fire being reckless as to the spread of the fire to vegetation on public land or land belonging to another: s203E(1) Crimes Act 1900. Mr Munday has an intellectual disability. As a consequence of that disability he has no real understanding of the court process and could not participate in a trial. He was found to be unfit to be tried: R v Munday [2021] NSWDC 374.
On 11, 12 and 13 October 2021 a special hearing was heard at Wollongong District Court pursuant Part 4 Division 3 to Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act). On 22 October 2021 I delivered 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.
Before returning and recording the verdicts, I asked counsel what disposition they were seeking: s33 the Act. Madam Crown said public safety demanded Mr Munday be detained until review by the Mental Health Review Tribunal (the Tribunal). Ms Hall SC, in response, said the status quo should be maintained, as Mr Munday had not offended during his remand period. She indicated she was surprised by the application and was not ready to meet it. She said there was a case for conditional release but that the defendant would need time to respond to the Crown application and make a case for…

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 3)

Details

AGLC: R v Munday (No 3) [2021] NSWDC 629
Case: [2021] NSWDC 629
Decision Date: 19 November 2021

CaseChat Overview and Summary

In the case of R v Munday (No 3), the appellant, who was charged with multiple counts of arson, faced trial before a court constituted by a single judge. The charges against the appellant included intentionally causing a fire and being reckless as to its spread. The case was brought before the court in the context of a special hearing to determine whether the appellant was fit to be tried. If found unfit, the court would need to consider consequential orders, including the potential for detention under mental health legislation.

The primary legal issues the court had to decide involved the appellant’s fitness to be tried and, if found unfit, whether detention was necessary. The appellant had a history of cognitive impairments, and the defence presented evidence to support this contention. The court was tasked with assessing the evidence and determining if the appellant was indeed unfit to be tried. If the appellant was found unfit, the court would also need to determine whether detention in a mental health facility was necessary for the protection of the community or for the appellant’s own well-being.

The court found the appellant unfit to be tried based on the evidence presented. It was established that the appellant had cognitive impairments that significantly affected their ability to participate in the trial process. The court also found that, while the appellant was not criminally responsible for the acts, it was necessary for the protection of the community and for the appellant's own well-being that they be detained under the Mental Health Act. Consequently, the court made an order referring the appellant to the Mental Health Review Tribunal and issued a conditional release order.

The final orders of the court included referring the appellant to the Mental Health Review Tribunal and issuing a conditional release order. This decision underscores the importance of ensuring that individuals with cognitive impairments receive appropriate care and that the community is protected, while also considering the rights and well-being of the individual in question.

Orders

Orders of the court

Referred to Mental Health Review Tribunal. Conditional release order. See [37]

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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Medium Neutral Citation:	R v Munday (No 3) [2021] NSWDC 629
Hearing dates:	19 November 2021
Date of orders:	19 November 2021
Decision date:	19 November 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Referred to Mental Health Review Tribunal. Conditional release order. See [37]
Catchwords:	CRIME – Arson - intentionally cause fire and be reckless as to its spread - multiple offences CRIME - Special hearing - Judge Alone hearing – Person unfit to be tried - verdicts “act proven but not criminally responsible”- consequential orders MENTAL HEALTH - Criminal proceedings — Person unfit to be tried - Special hearing – defence of cognitive impairment established – consequent orders - is detention necessary?
Legislation Cited:	Bail Act 2013 Crimes Act 1900 Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Cases Cited:	Attorney General of NSW v X (2013) 235 A Crim R 17; [2013] NSWSC 1392 R v Munday (No 2) [2021] NSWDC 628. R v Munday [2021] NSWDC 374 R v Siemek [2021] NSWSC 1292 R v Siemek (No. 2) [2021] NSWSC 1293 R v Tonga [2021] NSWSC 1064
Texts Cited:	COVID-19 (coronavirus) Response, Corrective Services NSW;
Category:	Consequential orders
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