R v Jackson

1. [1]

   JOHNSON J: The Accused, Terrance Edward Jackson, is charged by indictment that, on 21 March 2020 at Croydon in the State of New South Wales, he did murder Paul Robert Hughes.

2. [2]

   When the Accused appeared in the Arraignments List in this Court, the Court was informed that the Crown and the legal representatives for the Accused agreed, for the purpose of s.31 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (“the Act”), that the proposed evidence in the proceedings established a defence of mental health impairment to the charge of murder.

3. [3]

   Accordingly, on 20 August 2021, R A Hulme J listed for hearing today the proceeding to be conducted under s.31 of the Act.

Relevant Statutory Provisions

1. [4]

   Section 31 of the Act provides as follows:

2. [5]

   Section 28 of the Act provides for the defence of mental health impairment:

3. [6]

   The term "mental health impairment" is defined in s.4 of the Act:

The s.31 Procedure

1. [7]

   A hearing under s.31 of the Act is not a trial. No trial date has been fixed. Accordingly, there is no need for the Accused to elect to be tried by Judge alone under s.132 Criminal Procedure Act 1986: R v Sands [2021] NSWSC 1325 at [3]. The s.31(c) procedure has been described as an “evidentiary inquiry”: R v Gough [2021] NSWDC 180 at [13].

2. [8]

   If the Court is satisfied that the defence of mental health impairment is established for the purpose of s.31(c) of the Act, the Court is required to enter a special verdict under s.31 of “act proven but not criminally responsible”. The Court must then consider what consequential orders should be made under ss.33 and 34 of the Act.

3. [9]

   In the absence of s.31, a criminal trial would take place for the purpose of determining whether the defence of mental health impairment had been established. A criminal trial is conducted as adversarial litigation where an accusatorial process is involved, in which the prosecutor bears the onus of proving the elements of the crime charged: Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 at [138]. In this case, if the matter proceeded to trial, it would be for the Crown to prove that the Accused committed the act in question and the other elements of the crime of murder (apart from the question of intention) and it would be for the Accused to establish, on the balance of probabilities, the defence of mental health impairment under s.28(2) of the Act.

4. [10]

   Section 31 is a statutory modification of these usual procedures and permits the Court to consider the agreed position of the parties without the need for a criminal trial. In R v Siemek (No. 1) [2021] NSWSC 1292, reference was made (at [19]) to the origin of s.31 as explained in the second reading speech:

5. [11]

   The operation of s.31 has been considered in cases which had been fixed for trial and where, following an election for Judge-alone trial, the trial proceeded but culminated in a special verdict by way of s.31: R v Tonga [2021] NSWSC 1064; R v Siemek (No. 1). In those cases some consideration was given to the interaction between s.31 of the Act and ss.132 and 133 Criminal Procedure Act 1986.

6. [12]

   However, that analysis has no application to the present case where s.31 has been engaged before any trial date has been fixed, let alone any election for Judge-alone trial.

7. [13]

   It remains the case, however, that the Court is required to provide reasons for a decision to return a special verdict under s.31. In R v Siemek (No. 1), the Court said in this respect at [21] and [22]:

The Defence of Mental Health Impairment

1. [14]

   The explanation of the defence of mental health impairment and of the importance of expert medical evidence, as contained in R v Siemek (No. 1) at [84]-[94], has application to the present s.31 hearing as well. In R v Siemek (No. 1), the Court said at [84]-[89]:

2. [15]

   With respect to medical evidence where a defence of mental health impairment is raised, the Court said in R v Siemek (No. 1) at [91]-[92]:

3. [16]

   I have applied these principles concerning the construction and operation of s.28 when determining, in the present case, whether the Court is satisfied, after considering the evidence, that the defence of mental health impairment is established for the purpose of s.31(c) of the Act.

Evidence at the s.31 Hearing

1. [17]

   Placed before the Court, with the agreement of both the Crown and the defence, was a tender bundle which contained a range of documents, including a Statement of Agreed Facts, a report of Anne Lucas, psychologist, dated 18 November 2021, a report of Dr Sathish Dayalan, psychiatrist, dated 15 February 2021, a supplementary report of Dr Dayalan dated 16 August 2021 and a report of Dr Kerri Eagle, psychiatrist, dated 23 April 2021. Ms Lucas and Dr Dayalan examined the Accused at the request of the legal representatives for the Accused. Dr Eagle examined the Accused at the request of the Crown.

2. [18]

   In addition, contained in the tender bundle (which was admitted as Exhibit A), are statements of a number of persons who made observations of events relevant to this tragic case. Finally, also included in Exhibit A are certain medical records concerning the Accused, to which reference will be made shortly.

3. [19]

   It was that body of evidence which gave rise to the agreement between the parties for the purpose of s.31 of the Act.

4. [20]

   Section s.31 requires, firstly, agreement between the parties that the evidence in the proceedings establishes the defence of mental health impairment under s.31(a), and that requirement is satisfied. In addition, the Accused is to be represented by an Australian legal practitioner for the purpose of s.31(b), and that requirement is satisfied as the Accused is represented by highly experienced counsel and solicitor in this field of the law.

5. [21]

   The remaining aspect is whether the Court is satisfied, for the purpose of s.31(c), after considering the evidence, that the defence of mental health impairment is established.

6. [22]

   A helpful written submission prepared by the legal representatives for the Accused is before the Court (MFI1). The Crown agrees with the matters contained in that submission.

7. [23]

   Against that background, I turn to the facts of the matter.

Facts

1. [24]

   At the time of his death on 21 March 2020, Paul Hughes was 77 years old. At that time, the Accused was 41 years old.

2. [25]

   The Accused, Mr Hughes and five other residents lived in a share house at Croydon. The premises were comprised of six apartments, with shared laundry and shared bathrooms.

3. [26]

   Mr Hughes had lived there for about two years. He had worked as a furniture removalist, but he had retired some years earlier. Mr Hughes was described in the evidence by other residents of the Croydon premises as a pleasant person. He was well known and well liked in the house and in the community. He and another resident acted as the caretakers of the property.

4. [27]

   The Accused had lived in the share house for about eight years. He was described by several residents as difficult to get along with and had been involved in altercations and disputes with members of the share house over the years. The Accused had also had prior disputes with Mr Hughes about household matters.

5. [28]

   On Saturday, 21 March 2020, events unfolded which culminated in the death of Mr Hughes. The Accused had available to him at that time a Hyundai motor vehicle which was registered in the name of his mother, which he utilised from time to time.

6. [29]

   At 5.30 pm on 21 March 2020, the Accused was observed by another resident to reverse the Hyundai motor vehicle into a spot at the back of the Croydon property. Some time after that, Mr Hughes spoke to another resident and told him of an argument he had earlier that day with the Accused.

7. [30]

   Some time after 7.00 pm, Mr Hughes was in the driveway of the Croydon property. It is not known whether he was there as a result of a coincidence or some arrangement.

8. [31]

   When Mr Hughes was on the driveway, the Accused drove the Hyundai motor vehicle forward, running over Mr Hughes and causing fatal injuries. Other residents came to the assistance of Mr Hughes and remained with him, comforting him, whilst a “000” call was made and an ambulance attended. After running over Mr Hughes, the Accused drove away from the premises.

9. [32]

   Ambulance officers arrived on the scene and provided assistance to Mr Hughes, but his injuries were very substantial and proved fatal, with him passing away by about 7.38 pm.

10. [33]

    As I have mentioned, the Accused left the scene in the vehicle. Police spoke to him by telephone at about 10.30 pm that evening. The Accused made no admissions with respect to what had happened. Police ascertained that the Hyundai motor vehicle was at the premises of the Accused's mother at Lilyfield, as was the Accused himself.

11. [34]

    At about 4.15 am on Sunday, 22 March 2020, police attended the premises at Lilyfield. The Accused was arrested. He made no admissions at that time with respect to causing the death of Mr Hughes.

12. [35]

    The Hyundai motor vehicle was taken by police for examination. There was no mechanical fault detected in the vehicle. Forensic examination connected the vehicle to the death of Mr Hughes by means of the observation of markings on the outside of the vehicle, linking the vehicle directly to Mr Hughes.

13. [36]

    The Agreed Statement of Facts expands on conversations that police had with the Accused in the course of Sunday, 22 March 2020. It is not necessary to recount those matters. The Accused was arrested and charged with the murder of Mr Hughes.

14. [37]

    Also included in the Agreed Statement of Facts are references to other aspects of the evidence, including the annexure of statements of a number of the residents at the Croydon premises. For present purposes, it is not necessary to recite in any further detail, the facts of this tragic event.

15. [38]

    It is sufficient to observe that the evidence before the Court demonstrates clearly that it was the act of the Accused in driving over Mr Hughes which caused the death of Mr Hughes.

The Expert Evidence

1. [39]

   A number of expert reports form part of the agreed material before the Court.

2. [40]

   The report of Anne Lucas, psychologist, dated 18 November 2020 provides a helpful background in a number of respects. Ms Lucas spoke to the mother of the Accused, who confirmed that the Accused had been born in the Netherlands and the family had moved to Australia in 1980.

3. [41]

   Other matters in the report of Ms Lucas include her examination of medical records concerning the Accused, about which more will be said a little later. The records indicated historic diagnoses of schizoaffective (manic subtype) with paranoid ideation, depression and schizophrenia. Ms Lucas had been provided with reports from Croydon Health Centre, which also form part of the tender bundle.

4. [42]

   The report of Ms Lucas indicates that the Accused is an intelligent man. Between 2008 and 2010, he reported that he had completed a diploma at TAFE. He was working at times, but he was not working by the time of these events in March 2020. The Accused had at times used various illegal substances, including cannabis, ecstasy and methamphetamine, as well as alcohol, although he informed Ms Lucas that he was drug and alcohol free at the time of the events on 21 March 2020.

5. [43]

   Ms Lucas observed the history of acrimony which had arisen between the Accused and other persons at the Croydon premises over a period of time.

6. [44]

   Ms Lucas administered a Personality Assessment Inventory, which had certain limitations, as explained in her report in this case. There was no indication of intellectual disability on the part of the Accused. Ms Lucas stated that the Accused's composite full-scale IQ estimate indicated a scaled score of 105, so that his IQ would fall towards the higher end of the average range.

7. [45]

   Ms Lucas noted aspects of the Accused's criminal history and then his account of the events of 21 March 2020, which she noted was affected by paranoid ideation and involved what she described as “a circuitous account of events”.

8. [46]

   The report of Ms Lucas was clearly of assistance when Dr Dayalan came to examine the Accused on 18 January 2021.

9. [47]

   I will not set out in great detail what Dr Dayalan said, apart from noting particular features of the report which are of direct relevance for present purposes. At page 13 of the report of 15 February 2021, Dr Dayalan noted:

10. [48]

    A little later, Dr Dayalan said (page 14 of the report):

11. [49]

    Dr Dayalan concluded (at page 15 of the report):

12. [50]

    It will be observed that Dr Dayalan utilised in that report the language of the common law defence of mental illness as contained in the M'Naghten test. The Act commenced on 27 March 2021, and it is the provisions of that Act which apply to the present proceedings. Accordingly, with that in mind, the legal representatives for the Accused returned to Dr Dayalan, inviting a supplementary report, utilising the language contained in the Act.

13. [51]

    Dr Dayalan provided a supplementary report dated 16 August 2021, which stated, relevantly:

14. [52]

    A little later, Dr Dayalan said:

15. [53]

    The Crown requested that Dr Kerri Eagle examine the Accused. Dr Eagle had available to her the material which was in existence at the time of her examination of the Accused, which took place on 8 April 2021. In a characteristically thorough and helpful report dated 23 April 2021, Dr Eagle examined the history of the Accused, relevant documentation, including documentation concerning his history of mental health treatment, and then turned to diagnoses with respect to the Accused.

16. [54]

    Dr Eagle noted (at page 14) that the Accused had previously been diagnosed with schizophrenia and schizoaffective disorder. Dr Eagle considered that he satisfied a diagnosis of “schizophrenia, paranoid type”. She stated that he may have a schizoaffective disorder.

17. [55]

    Dr Eagle observed that the diagnoses of schizophrenia and schizoaffective disorder are both chronic psychotic illnesses that are considered neurodevelopmental disorders. She observed that the Accused has experienced recurrent relapses of psychosis characterised by persecutory delusions, auditory hallucinations, disorganised thought form and disorganised behaviours. Dr Eagle explained that the difference between schizophrenia and schizoaffective disorder is in the relationship between episodes of mood disturbance and relapses of psychosis. The Accused appeared to have a re-emergence of persecutory symptoms that did not entirely correlate with relapses of mood disturbance. The presence of persecutory delusions appeared to be the prominent feature of his recent relapse. Nonetheless, Dr Eagle explained that the “distinction between the diagnosis is superficial, both being schizophrenia-type illnesses that have a similar natural history and prognosis”.

18. [56]

    Dr Eagle observed that the Accused appeared to have a substance use disorder in remission. I note, at this point, that the evidence does not indicate that the substance use disorder played any part in the events of 21 March 2020 (see s.4(3) at [6] above).

19. [57]

    Dr Eagle then expressed an opinion, using language consistent with the common law defence of mental illness. However, the opinion of Dr Eagle using that test can be easily modified to assist an understanding by reference to the definition of "mental health impairment" in s.4 and the defence of mental health impairment in s.28 of the Act.

20. [58]

    Dr Eagle said (page 14 of the report):

21. [59]

    When considering the issue of knowledge of wrongfulness, Dr Eagle said (page 15 of the report):

22. [60]

    It may be seen, then, that apart from the evidence of the events of 21 March 2020 themselves, as to which the Court has an agreed factual narrative, there are expert reports from two psychiatrists and one psychologist. Each of the psychiatrists identifies the existence of a mental health impairment which falls within s.4 of the Act, together with the further features of the defence of mental health impairment as provided for in s.28 of the Act. Although Dr Eagle does not use the language of the Act directly, her opinion clearly supports the conclusion that was reached by Dr Dayalan, although there is a superficial distinction in diagnoses which does not affect the conclusion.

Decision Concerning the s.31 Elements

1. [61]

   I have noted earlier that the requirements of s.31(a) and (b) are established.

2. [62]

   Having considered the factual and expert medical evidence, I am satisfied that the defence of mental health impairment is established by the evidence. Accordingly, each of the requirements of s.31 have been demonstrated. It is appropriate to return a special verdict in accordance with that section.

Consequential Orders

1. [63]

   The written submissions provided on behalf of the Accused nominated certain orders, which the parties accepted would be appropriate in the event that the Court returned a special verdict in accordance with s.31 of the Act.

2. [64]

   Section 33(1) provides for the Court, on a return of the special verdict of act proven but not criminally responsible, to make one or more of a number of specified orders. It was acknowledged in the written submissions that the only appropriate order is one under s.33(1)(b), whereby the Accused would be detained for a period and be under management by the Mental Health Review Tribunal.

3. [65]

   I have confirmed with counsel for the Accused that it is accepted that the appropriate order is one under s.33(1)(b) of the Act. In the circumstances of this case, that is a realistic submission. This is not a case where there would be any prospect of the Court considering the conditional release of the Accused, having regard to the totality of the evidence and the gravity of the events which bring him before this Court.

4. [66]

   I note that s.34 of the Act requires the Court to refer the Accused to the Mental Health Review Tribunal and I will make that order.

5. [67]

   Before formally returning the verdict and making orders, I should note two things.

6. [68]

   Firstly, it would be apparent from the narrative contained in this judgment that these were terribly tragic events. Mr Hughes was a well-liked man living in shared accommodation. The Accused is a man who suffers from mental health difficulties and has for some time. Tragically, the two persons crossed paths on this particular day, at a time when, on the evidence, the Accused had severe mental health problems.

7. [69]

   The Court notes that there is nothing in the evidence to suggest that anything that Mr Hughes said or did played any part in these tragic events.

8. [70]

   The second thing I should mention is that it is important that the community understands the effect of the special verdict which will be returned shortly and the orders which the Court will make. The effect of the orders will be that the Accused will remain in custody and be held as a forensic patient to come under the supervision of the Mental Health Review Tribunal. The statutory scheme surrounding that Tribunal is such that the Accused will not be released until the Tribunal is satisfied that the safety of any member of the public, or of the Accused himself, will not be seriously endangered by his release: ss.29(d) and 84(2) of the Act. His case will be reviewed by the Tribunal as soon as practicable and will be subject to review at six-monthly intervals: s.78 of the Act. If, at some stage in the future, the Accused comes to be released, it may be on conditions, and if any of those conditions are breached, or his mental condition deteriorates to a point where he may be a serious danger to others, the Tribunal may order that he be apprehended and further detained: s.109 of the Act.

Verdict and Orders

1. [71]

   I move now to the return of the verdict and the making of the orders.

2. [72]

   On the charge that the Accused, on 21 March 2020 at Croydon in the State of New South Wales, did murder Paul Robert Hughes, the Court returns a special verdict of act proven but not criminally responsible.

3. [73]

   I make the following orders:

4. [74]

   I make the following further directions: