Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Sands [2021] NSWSC 1325 Hearing dates: 15 October 2021 Decision date: 15 October 2021 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: In respect of each of counts 1, 2, 3, and 5 I return the special verdict of act proven but not criminally responsible.
Catchwords: CRIME – murder – defence of mental health impairment and cognitive impairment – special verdict where defendant and prosecutor agree on impairment – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 31 – Major Depressive Disorder – psychotic symptoms – neurodegenerative disease – Posterior Cortical Atrophy – Lewy Body Dementia – unanimous medical opinion that defence applies – accused did not know the nature and quality of the act – accused did not know that the act was wrong – judge alone special verdict of act proven but not criminally responsible
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Criminal Procedure Act 1986 (NSW), s 133
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 5, 28, 31, pt 3
Cases Cited: R v Siemek(No. 1) [2021] NSWSC 1292
Category: Principal judgment Parties: Regina
Richard George SandsRepresentation: Counsel:
Solicitors:
Mr G Tabuteau
Mr S Bouveng
Solicitor for Public Prosecutions
Legal Aid NSW
File Number(s): 2019/325678
Judgment
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HIS HONOUR: The accused has been arraigned in this Court on an indictment. Without referring to alternative charges, the primary charges may be summarised as follows. Each offence is said to have occurred at Hillvue, a suburb of Tamworth, on 17 October 2019:
1. The murder of Antoinette Sands.
2. The murder of Orlando Harper.
3. An offence of setting fire to a dwelling with the intent to murder Antoinette Sands.
4. A charge of setting fire to the same dwelling with intent to murder a young boy. [1]
1. Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) operates to prohibit identification of the child where no consent has been given to allow same. Consent was provided by the mother of Orlando Harper to allow him to be identified.
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The accused pleaded not guilty and a hearing pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) was conducted on 15 October 2021.
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An election has been filed for a judge only trial, but this is not a trial. A date for trial had not even been fixed. Accordingly, there is no need to take any action in respect of that document.
Legal principles
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Because this is a hearing pursuant to s 31 and is not a trial, there is no requirement for me to comply with the requirements of s 133 of the Criminal Procedure Act 1986 (NSW). In short, that requires a judge hearing a matter by way of a trial in the absence of a jury to refer to all of the principles of law…
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- AGLC
- R v Sands [2021] NSWSC 1325
- Case
- [2021] NSWSC 1325
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the defendant's mental health and cognitive impairments were such that they negated her criminal responsibility for the act. The legal issue revolved around the interpretation and application of sections 28 and 31 of the Act, which pertain to the conditions for a special verdict of act proven but not criminally responsible. The prosecution and the defence agreed that the defendant suffered from significant impairments, but the defence argued that these impairments rendered her incapable of understanding the nature and quality of her act or knowing that it was wrong. The court had to assess the evidence and the expert opinions to ascertain whether these impairments indeed absolved the defendant of criminal responsibility.
The court, after carefully considering the evidence and expert opinions, found that the defendant's impairments were severe and had a profound impact on her mental faculties. The unanimous medical opinion confirmed that the defendant did not know the nature and quality of her act nor did she know that it was wrong due to her conditions. Therefore, the court concluded that the defendant was not criminally responsible for the act. The judge, acting alone, entered a special verdict of act proven but not criminally responsible. This verdict acknowledges the defendant's involvement in the act but exempts her from criminal liability due to her mental and cognitive impairments.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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