R v Fleming (Special Verdict)

1. [1]

   HER HONOUR: In the fourth week of the trial of the accused, Simon Fleming, the Crown conceded that count 1 of the indictment of 1 and 3 May 2023 was incapable of proof, and the jury empanelled to hear the trial was directed to return a verdict of not guilty with respect to the offence of engaging in a terrorist act, contrary to s 101.1(1) of the Commonwealth Criminal Code Act 1995. Following the entry of the verdict, the jury was discharged from further service with respect to counts 2 to 12 on the indictment.

2. [2]

   The only offence contrary to a federal statute having been determined, State provisions are applicable to the balance of the charges, and the parties agreed that it was appropriate for the matter to proceed pursuant to s 31 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the MHCIFP Act”) rather than continue with the part-heard trial. It was accepted that the evidence established a defence of mental health impairment, and the Court was asked to proceed without a jury, pursuant to s 31.

3. [3]

   Section 31 provides:

4. [4]

   On the basis of the evidence of Dr Adam Martin, supported by other, lay, evidence in the Crown case including that of Neil Hay and Ex AE, each of the sub-sections of s 31 was satisfied, and that was clearly an appropriate course for the Court to take. Whilst the jury, constituting the court, could have been invited to return the special verdict, that would have entailed some time spent in dealing with evidentiary issues consequential to orders made by the court on 22 May 2023. The more efficient course was for the Court to discharge the jury, and thereafter enter the special verdicts.

5. [5]

   Although there is some tension between s 31 of the MHCIFP Act and s 133 of the Criminal Procedure Act 1986 (NSW) the general view is that, although the court is not “trying” a criminal case, there remains a common law requirement that a court provide reasons for the decisions it makes, an approach which promotes transparency in judicial decision making, and facilitates open justice. For that reason, I propose to give a judgment in the usual course. This judgment will include, albeit briefly, a statement of the relevant law, and of the evidence from which the facts are found.

The Law

1. [6]

   The terms of s 31 are set out above. The requirements of s 31(a) and s 31(b) are met, the parties having advised the Court of their agreement as to the availability of the special verdict, and the accused being represented by counsel and a solicitor.

2. [7]

   The special verdict is said to be available because the accused has a mental health impairment. That term is defined by s 4 of the Act, relevantly as follows:

3. [8]

   The “special verdict” to which s 31 refers is found in the combined operation of ss 28 and 30 of the MHCIFP Act. Section 28 is in these terms:

4. [9]

   Section 30 provides for the consequences of a conclusion pursuant to s 28(1), as follows:

5. [10]

   Before the Court can turn to the defence the Crown must prove the commission of the physical acts, or actus reus, of each of the charges counts 2 to 12. Annexed to these reasons is a short statement of the physical elements of each offence that must be proved to the criminal standard. If the Crown proves those elements, the defence falls for consideration.

6. [11]

   If the Court concludes on the balance of probabilities that, on the evidence placed before it pursuant to s 31, the accused has a mental health impairment as defined by s 4 such that he did not know the nature and quality of his act, or, that the act was wrong (being unable to reason that it was with a moderate degree of sense and composure), the special verdict must be returned.

7. [12]

   Section 31 allows the Court to consider the availability of the defence and the special verdict, without need for a trial to be held, on the basis of the evidence tendered.

The Evidence

1. [13]

   The accused has never disputed that he carried out the physical acts reflected by counts 2 – 12, and those aspects of the charged conduct can be readily established by Ex B, compilation footage, and Ex E, together with the evidence of Mr Hay and Detective Senior Constable Michael Adams. The facts established by the evidence are set out in brief in R v Fleming [2023] NSWSC 560 and are not repeated here.

2. [14]

   As to the defence, the Court heard evidence from Dr Adam Martin in the Crown case at trial, and received a report from Dr Antonio Simonelli during the course of voir dire proceedings. Dr Martin, a well-respected forensic psychiatrist, assessed the accused at the request of the Crown, interviewing him via an audio visual link on 31 March 2023 for about 90 minutes. Dr Martin had been comprehensively briefed with a volume of relevant material, including Mr Fleming’s medical history. That history shows that the accused has a long-standing mental health impairment, for which he has received treatment since about 2018. Dr Martin concluded that the accused suffers from schizophrenia, or a schizo-affective disorder and he was suffering from that mental health impairment on 28 November 2021 such that he did not know that his actions on that day were wrong in a moral sense.

3. [15]

   Dr Simonelli, also an experienced forensic psychiatrist, was also of the opinion that the accused was suffering from a mental health impairment such that the defence under the Act was available to him.

4. [16]

   The doctors’ conclusions are supported by the impression formed by the civilian witness who had most contact with the accused on 28 November 2021, Mr Neil Hay. Mr Hay, who spent about half an hour with Mr Fleming on this day, was of the view that he was very clearly unbalanced. That was also the Court’s inexpert assessment on viewing the footage of an interview recorded between police and the accused later on 28 November 2021 (Ex AE). Finally, the testimony of the accused’s mother, Carolyn Fleming, who saw her son on 28 November 2021 as she did most days, was eloquent of the sad descent into withdrawal and illness experienced by Mr Fleming in recent years, and of his distressed state that day.

Conclusion and Verdict

1. [17]

   The Court is satisfied beyond reasonable doubt that the accused committed the physical acts the Crown is required to establish to go to proof of each of the offences on the indictment. Having regard to the evidence of mental health impairment, there is no doubt that the accused was suffering from schizophrenia or a schizo-affective disorder on 28 November 2021, and did not on the balance of probabilities know the nature and quality of his act or, more probably, he did not know that his act was wrong, as contemplated by the Act. The Court is satisfied to the same standard that the defence is made out, and the special verdict should be returned. Whilst a mentally ill individual might act in a way that, prima facie, seems criminal, as occurred here, it has never been the role or intention of the criminal justice system to pursue a mentally impaired accused for such conduct. As the Act contemplates, Mr Fleming is not criminally responsible for his conduct on 28 November 2021; it was the product of acute illness.

2. [18]

   With respect to each of counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the indictment of 1 and 3 May 2023 the Court returns the special verdict pursuant to section 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act that the act alleged in each of those counts is proven, but the accused is not criminally responsible for them.