R v Papanicolaou (No 4)

1. [1]

   The accused has been charged on indictment with one count that on 19 February 2019, in Sydney in the State of New South Wales, she did murder Marjorie Jane Welsh. The accused was arraigned in the Supreme Court on 7 August 2020 and pleaded not guilty to murder but guilty to manslaughter on the basis of substantial impairment under s 23A of the Crimes Act 1900 (NSW). This plea was not accepted by the Crown in satisfaction of the indictment. The jury for the trial of the accused is due to be empanelled on 24 January 2022.

2. [2]

   Both the accused and the prosecution have obtained expert evidence from psychiatrists, Dr Kerri Eagle and Dr Adam Martin respectively, which is proposed to be adduced concerning the issue of the substantial impairment of the accused for the purposes of s 23A of the Crimes Act.

3. [3]

   On 27 March 2021, s 23A of the Crimes Act was amended by items [6]-[9] of cl 3.7 of Sch 3 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

4. [4]

   The parties have sought a ruling under s 192A(b) of the Evidence Act 1995 (NSW) in relation to the question of whether s 23A of the Crimes Act applies in its form before or after the amendments made on 27 March 2021 in relation to, and for the purposes of, the expert evidence as to substantial impairment proposed to be adduced.

5. [5]

   For the reasons which follow, I am of the view that s 23A of the Crimes Act in its form prior to the amendments on 27 March 2021 continues to apply for the purposes of these proceedings including in relation to the expert psychiatric evidence to be adduced.

Prosecution case

1. [6]

   The substance of the most relevant aspects of the prosecution case is set out in the paragraphs which follow.

2. [7]

   The accused was born in Indonesia in 1983 and moved to Australia in about 2007, after she married her husband, an Australian citizen. In late 2018 and early 2019, the accused worked for a number of clients, including the deceased’s daughter and the deceased, as a self-employed domestic cleaner. The accused was a regular gambler, most often playing poker machines at an RSL club. She regularly requested that money be transferred to her by her husband and by other persons to fund her gambling.

3. [8]

   The accused cleaned the deceased’s house generally once per week, as arranged by the deceased’s daughter, usually on a Friday morning. When the accused came to clean the deceased’s house she would park her car in the driveway, go to the front door and wait to be let in by the deceased. The accused and the deceased had a close relationship and the deceased disclosed to the accused that she (the deceased) had sold her previous property for $8 million, which shocked the accused.

4. [9]

   On Wednesday, 2 January 2019, shortly after 9:00 am, the accused went to the RSL club and played the poker machines for about 50 minutes, losing $430 during that period. After certain withdrawals from her bank account, the accused was left with $11 in the account. The accused left the club and drove to the park behind the deceased’s house.

5. [10]

   The accused gained access to the deceased’s backyard over the fence at the corner of the property. The deceased had been in her yard but, by the time she entered her house through the backdoor, the accused was inside and this is where the deceased first saw the accused that day.

6. [11]

   The accused immediately began to attack the deceased with the deceased’s walking sticks, beating her and breaking two of the sticks in so doing. The accused also hit the deceased in the head, face, chest and arms with decorative, ceramic plates belonging to the deceased. At some stage, the accused removed a kitchen knife from the cutlery drawer and stabbed the deceased in the chest and abdomen about six times.

7. [12]

   The deceased was badly injured but crawled towards the backdoor where she activated an emergency pendant around her neck at 10:39 am. The accused switched off the emergency call unit and removed the cordless telephone with which it was connected. She took the cordless telephone and the knife and left. The deceased reached the backdoor, called for help and reactivated the pendant. The accused jumped over the back fence and ran back to her car. The deceased identified her attacker as “the cleaner” to the police and ambulance officers who attended soon after.

8. [13]

   The accused drove home, discarding the cordless telephone and the knife in a bin in Canterbury and the shirt she was wearing near her home. She spoke to her husband but was upset and left soon after. The accused was located and arrested. She informed police where she had discarded the knife and clothing, which were located along with the telephone.

9. [14]

   The accused was interviewed by police and she gave a relatively detailed account of what she said occurred, including that the deceased accused her of stealing $50 and that it was the deceased who attacked her with a walking stick and had the knife in her hand. It was also said that the ceramic plates had fallen off the table during the struggle.

10. [15]

    The deceased died on 19 February 2019 due to complications of blunt force head injury and stab wounds to the chest and abdomen.

Defence response

1. [16]

   The defence response, provided in accordance with s 143 of the Criminal Procedure Act 1986 (NSW), expressly stated that the accused intended to plead not guilty to murder but guilty to manslaughter on the basis of substantial impairment pursuant to s 23A of the Crimes Act. A notice under s 151 of the Criminal Procedure Act indicated that the accused intended to rely on the evidence of Dr Kerri Eagle, forensic psychiatrist, in two reports dated 2 April 2020 and 30 June 2020. In her earlier report, Dr Eagle relevantly opined:

2. [17]

   Dr Eagle in her earlier report described the accused’s underlying condition as a “major depressive disorder, major depressive episode moderate to severe”.

The relevant legislative provisions

1. [18]

   Prior to 27 March 2021, s 23A of the Crimes Act was in the following form:

2. [19]

   It can be noted that the contention referred to in s 23A(7)(a) in the quotation above is a contention that the person was mentally ill at the time when the person did the act in question and that the jury should return a special verdict that the accused person was not guilty by reason of mental illness, as provided in s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), which was in force prior to 27 March 2021. Section 38 of that Act provided:

3. [20]

   On 27 March 2021, the Crimes Act was relevantly amended as set out below by cl 3.7 of Sch 3 (since repealed) to the Mental Health and Cognitive Impairment Forensic Provisions Act.

   1. (1)

      A new s 4C was inserted by item [1] as follows:

   2. (2)

      Section 23A was amended as follows by items [6]-[9]:

4. [21]

   Moreover, the previous defence of mental illness found in s 38 of the Mental Health (Forensic Provisions) Act was replaced with a defence of mental health impairment or cognitive impairment found in ss 28 and 30 the Mental Health and Cognitive Impairment Forensic Provisions Act as follows:

5. [22]

   The transitional provisions found in Sch 2 to the Mental Health and Cognitive Impairment Forensic Provisions Act, relevantly in cll 5 and 6, related to the defence of mental illness formerly found in s 38 of the Mental Health (Forensic Provisions) Act (referred to as “the former Act”) and provided as follows:

6. [23]

   There are no transitional provisions in the Mental Health and Cognitive Impairment Forensic Provisions Act relating to the amendments to s 23A of the Crimes Act. Nor are there any transitional provisions in Sch 11 (headed “Savings, transitional and other provisions”) of the Crimes Act in relation to the recent amendments to s 23A.

7. [24]

   The result of the amendments referred to above is that after 27 March 2021 the Crimes Act has contained the explanation of “mental health impairment” set out in s 4C (which has been quoted in full above), and s 23A has been in the following terms:

8. [25]

   Section 30 of the Interpretation Act 1987 (NSW) relates to the effect of amendments to Acts and provides as follows:

9. [26]

   The Attorney General’s second reading speech in relation to the Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 (NSW) included the following:

Submissions

1. [27]

   The Crown’s submissions noted that, under the old form of s 23A, the issue for consideration was whether an accused was substantially impaired “by an abnormality of the mind arising from an underlying condition” but that, since the amendments in 2021, the issue for consideration is whether an accused was substantially impaired “by a mental health impairment or a cognitive impairment”. Which form of s 23A applies will determine the issues that the expert psychiatrists’ evidence needs to address and the issues that the jury must consider. It was also noted that Dr Eagle and Dr Martin have provided reports dealing with the accused’s impairment under both forms of s 23A and they have each reached the same conclusions whether the old or the new form of the section applies. Accordingly, it was submitted that there was no unfairness to the accused whichever form of s 23A were to apply.

2. [28]

   The Crown submitted in effect that to apply the new form of the section from the date of amendment could lead to difficulties and unnecessary complexity in proceedings. For example, it was observed that, if such an approach were adopted, the test to be applied could have changed during the course of a trial and one expert may have given evidence in relation to the old form of the section and another expert may have given evidence in relation to the new form.

3. [29]

   In addition, it was contended that in proceedings on foot at 27 March 2021 in which both the partial defence under s 23A of the Crimes Act and the defence of mental illness were raised, the transitional provisions in relation to the defence of mental illness in cll 5 and 6 of Sch 2 to the Mental Health and Cognitive Impairment Forensic Provisions Act would mean that the old form of the defence of mental illness formerly found in s 38 of the Mental Health (Forensic Provisions) Act would apply. In these circumstances, it was submitted that it would be appropriate to apply the old form of s 23A rather than the new statutory terms adopted in the 27 March 2021 amendments.

4. [30]

   The accused’s submissions noted the terms of the amendments and the transitional provisions in relation to s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act and the absence of transitional provisions in relation to section 23A of the Crimes Act. Attention was also drawn to s 30 of the Interpretation Act.

5. [31]

   The accused submitted that the trial commenced on 7 August 2020 when she was arraigned in this Court and the trial date was fixed. It was said that, as a consequence, the trial commenced before the amendments to s 23A came into operation.

6. [32]

   The accused’s submissions noted that certain factors pointed against the new form of s 23A applying in the present case, namely that:

   1. (1)

      the amendment concerned a substantive defence rather than a matter of procedure;

   2. (2)

      there was an absence of clear words to suggest the amendment should apply to proceedings that had already commenced; and

   3. (3)

      to conclude that the new form of s 23A had immediate effect would be to conclude that the amendment might have taken effect halfway through a trial and possibly halfway through a jury address or jury deliberation.

7. [33]

   Nonetheless it was also submitted that there were other factors which pointed in the opposite direction including:

   1. (1)

      since the accused did not perceive any substantial benefit or detriment if the new form of s 23A were applied, any presumption against retrospectivity would not have the same force that it would in a case where rights were more obviously affected; and

   2. (2)

      since the purpose of the amendment appears to be to modernise language rather than to alter the substance of the defence, this may imply that the amendment should have immediate effect and the possibility of any alteration mid-trial should be less concerning.

8. [34]

   Further, the accused noted that there were no authorities that had determined this issue. In R v Warren Scott (No 2) [2021] NSWSC 1201, a judge alone trial before N Adams J which commenced before the amendments to s 23A, the parties agreed that the unamended version of the section was applicable and her Honour, at [253], was content to proceed on that basis. It was also noted that R v Carroll [2000] NSWSC 410 concerning earlier amendments to s 23A was not of assistance in light of the specific transitional provisions applicable to those amendments which have no counterpart in the present situation.

9. [35]

   Finally, the accused submitted that the Court’s focus should be on the words of the Act.

Consideration

1. [36]

   The events giving rise to the count on the indictment in the present case occurred in January and February 2019. The accused was arraigned in this Court on 7 August 2020 and pleaded not guilty and, as a result, the matter was listed for trial. In these circumstances and having regard to the terms of s 130 of the Criminal Procedure Act 1986, the accused’s trial should be taken to have started on 7 August 2020, on the basis explained in JC v Director of Public Prosecutions (NSW) (2014) 87 NSWLR 320; [2014] NSWCA 228 at [21]-[28] (Basten JA, Beazley P and Ward JA agreeing).

2. [37]

   The amendments to s 23A of the Crimes Act, effected by Sch 3 to the Mental Health and Cognitive Impairment Forensic Provisions Act, commenced on 27 March 2021, well after the events in January and February 2019 and well after the start of the accused’s trial on 7 August 2020.

3. [38]

   In order to determine which form of s 23A of the Crimes Act applies in the present case, it is essential to have regard to the relevant provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act, including the new defence of mental health impairment or cognitive impairment, the amendments to the Crimes Act and the transitional provisions. The principles to be applied in construing these provisions include the general rule of the common law that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events: Maxwell v Murphy (1957) 96 CLR 261 at 267 (Dixon CJ); [1957] HCA 7; Rodway v The Queen (1990) 169 CLR 515 at 519 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ); [1990] HCA 19. Section 30 of the Interpretation Act, which has been quoted above, is a statutory provision to essentially the same effect.

4. [39]

   To the extent that the amendments to s 23A of the Crimes Act materially affected the “rights” and “liabilities” of the accused such as they were before the amendments came into force, then in the absence of express transitional provisions or some other clear expression of legislative intention to the contrary, the amending provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act should be construed as not applying in the present proceedings and s 23A should be applied in its form prior to 27 March 2021.

5. [40]

   Further, from the extrinsic material, it is apparent that one of the mischiefs which those provisions were designed to remedy was the outdated and inconsistent language used in the Mental Health (Forensic Provisions) Act and the Crimes Act in various provisions involving what is currently described as “mental health impairment and cognitive impairment”. In particular, one of the objectives of the 27 March 2021 amendments was to adopt consistent statutory definitions of “mental health impairment” and “cognitive impairment” to be applied not only to the statutory test for fitness to be tried and the defence of mental illness, or of mental health impairment or cognitive impairment, but also to the partial defence in s 23A of the Crimes Act of substantial impairment.

6. [41]

   The transitional provisions relating to the new form of the defence of mental health impairment or cognitive impairment in s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act, found in cl 5 of Sch 2 to that Act, indicate that the Parliament did not intend that such changes should be applied in relation to:

7. [42]

   Since the factual circumstances that give rise to the defence of mental illness, or mental health impairment or cognitive impairment, might also support, in the alternative, the partial defence under s 23A (as indicated by s 23A(7)), the preferred construction of the relevant amending provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act should be one which achieves a measure of consistency in linguistic approach rather than the application of outdated language in respect of the defence at the same time as the application of the more modern language in respect of the partial defence. If this approach is adopted, the old form of s 23A of the Crimes Act should be held to apply to proceedings commenced before 27 March 2021, when the amendments came into effect.

8. [43]

   Applying the old form of s 23A in the present case would also be consistent with the approach adopted in R v Warren Scott (No 2) at [253]. It should be noted, however, that the parties in that case were in agreement that the old form of s 23A applied and, consequently, it was not necessary for N Adams J to consider the question in any detail.

9. [44]

   Finally, a further consideration which weighs in favour of construing the amendments to s 23A as not applying in proceedings on foot before the amendments commenced is the fact that, if the new form of s 23A were applicable in all proceedings immediately upon commencement of the amendments, the form of s 23A to be applied might have changed partway through a trial and possibly partway through a jury address or jury deliberation. Such a result would be unsatisfactory.

10. [45]

    There did not appear to me to be any considerations of substance which supported a construction of the amending provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act that made the amended form of s 23A of the Crimes Act applicable in respect of events which took place before, and trials which commenced before, the date on which the amending provisions commenced.

11. [46]

    In light of all these considerations, I am of the view that the applicable form of s 23A in this case is as it was prior to the March 2021 amendments, namely:

Conclusion

1. [47]

   For these reasons, the form of s 23A of the Crimes Act which is to be applied in the present case is the form of that section prior to the amendments effected by the commencement of the Mental Health and Cognitive Impairment Forensic Provisions Act in March 2021, and the relevant evidence of the psychiatrists will be the evidence directed to the issues raised by that form of s 23A.