Masters v R

1. [1]

   BRERETON JA: I agree with Lonergan J.

2. [2]

   N ADAMS J: I agree with the orders proposed by Lonergan J for the reasons provided by her Honour.

3. [3]

   LONERGAN J: On 14 July 2020 the appellant was found guilty of dangerous driving occasioning death in contravention of s 52A(1)(c) of the Crimes Act 1990 (NSW) (“the Act”) and dangerous driving occasioning grievous bodily harm in contravention of s 52A(3)(c) of the Act. On 22 September 2017 he had crossed to the wrong side of the road on Hastings River Drive, Port Macquarie and collided at speed with the front of a vehicle being driven by Mr Ashenden who was tragically killed in the accident. Mr Ashenden’s passenger, Mrs Ashenden, was seriously injured. The appellant was sentenced to an aggregate term of imprisonment of 3 years to be served by way of an Intensive Correction Order. The sentence expires on 17 September 2023.

4. [4]

   The only issue at trial was whether the appellant failed to understand the moral wrongfulness of his acts so as to attract a special verdict of not guilty by reason of mental illness under what was then s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) which provided:

5. [5]

   This requires persuasion, on the balance of probabilities, that at the time of the commission of his physical acts or omissions, the appellant was suffering from a defect of reason arising from a disease of the mind that had the effect that, although he appreciated the nature and quality of his actions, and although he may have appreciated the legal wrongfulness of his actions, he did not appreciate that they were morally wrong: See R v M’Naughten (1843) 10 CL & Fin 200; 8 ER 718, (“M’Naughten”), as explained further in the jury directions provided by Dixon J in The King v Porter (1933) 55 CLR 182; [1933] HCA 1, (“Porter”).

6. [6]

   As further explained by Dixon J in Porter, it is presumed that a person is of sufficient soundness of mind to be criminally responsible for his (or her) actions until the contrary is made to appear at trial.

7. [7]

   Two experienced and eminent forensic psychiatrists, Dr Adam Martin and Dr Jonathon Adams, each independently reached the view that the defence of mental illness was available to the appellant. They set out their reasons for that conclusion in comprehensive reports prepared in late 2018 and in the oral evidence they provided to assist the Court on 18 May 2020. They concluded that the appellant was suffering from schizophrenia manifesting in persistent persecutory delusions, thought disorder, disorganised behaviour and distress.

8. [8]

   The trial judge, Marien SC ADCJ, who heard the matter without a jury, was not satisfied that mental illness was made out and convicted the appellant of both charges.

9. [9]

   There are three grounds of appeal, which are interrelated but not interdependent:

   1. (1)

      His Honour’s intervention in the conduct of the trial was excessive, giving rise to procedural unfairness or an apprehension of bias and caused a miscarriage of justice.

   2. (2)

      His Honour applied the wrong test in determining that the appellant had not established that he was mentally ill at the time of the alleged offence.

   3. (3)

      This Court should determine that the appellant was mentally ill at the time of the offences in accordance with s 7(4) of the Criminal Appeal Act 1912 (NSW).

10. [10]

    For the reasons that follow, I have reached the view that grounds 2 and 3 are made out. As to ground 1, while I agree that his Honour’s intervention was excessive and inappropriately so, I am not satisfied that it was productive of procedural unfairness or founded a reasonable apprehension of bias such as to result in a miscarriage of justice. The experts maintained their soundly based opinions in their oral evidence, despite interruptions and cross-examination by the trial judge. This persistence on their part, and the re-focusing on relevant issues by both counsel at trial, in end effect protected the trial from his Honour’s excessive interventions. The problem with the trial and the basis of many of his Honour’s interventions was his Honour’s misapprehension of the test in M’Naughten and his misapplication of it to the evidence. That is why grounds 2 and 3 must be upheld and the appellant’s convictions quashed.

Summary of the case at trial

1. [11]

   The trial commenced on 22 October 2019 with the tender of the Crown brief of evidence. Whilst in no way binding on the trial judge, the following observations were made by the Crown Prosecutor in respect of the accused’s mental illness defence: “The defence is available - the expert opinion is unanimous on that point”, “it doesn’t seem to be in question that Mr Masters suffered from schizophrenia and the symptoms were florid or active at the time” and “both the defence and Crown psychiatrists were of the opinion that he would not have appreciated the moral wrongfulness of his acts”.

2. [12]

   Within that tendered Crown brief prior to and separate to the assessments by Dr Martin and Dr Adams was sworn evidence of observations of acquaintances and family members as to strange behaviour the appellant was exhibiting in the period just before 22 September 2017. Also in the Crown brief was reference to the known 2011 diagnosis of schizophrenia made when the appellant lived in Queensland, including periods of involuntary admission to hospital. Covered in the treatment notes post collision are a number of clinical assessments made by psychiatrists and psychologists who treated the appellant in the weeks and months after the collision.

3. [13]

   Commencing with the clinical material, treating Neuropsychologist, Dr Connie Roberts, assessed the appellant on 7 and 8 November 2017 at the Mid North Coast Brain Injury Rehabilitation Service. She noted:

4. [14]

   Dr Roberts noted that on interview:

5. [15]

   A Psychiatrist, Dr Hughes, interviewed the appellant on 16 November 2017 at the Wauchope District Memorial Hospital. In a long assessment and treatment plan note, Dr Hughes’ impression was of psychosis - delusional disorder. He recorded the following:

6. [16]

   In the Discharge Summary from the Wauchope District Memorial Hospital authored by Dr Avery, Rehabilitation Consultant, dated 26 November 2017, the following is recorded after items “1. MVA with multiple fractures”:

7. [17]

   In the Royal Rehabilitation Centre Sydney Progress Notes on 30 November and 7 December 2017, Dr Illchef, Psychiatrist, and Dr Sandhu, Psychiatry Registrar, have recorded this history:

8. [18]

   Under that part of their assessment headed “Past Psychiatric History”, Dr Illchef and Dr Sandhu set out the documented prior symptoms of mental illness and the 2011 diagnosis of schizophrenia for which he was no longer being treated:

9. [19]

   Dr Illchef and Dr Sandhu concluded:

10. [20]

    In the Multi-disciplinary Discharge Report from the Royal Rehabilitation Centre, an entry from Ms Dos Santos, Clinical Psychologist, dated 20 December 2017 noted the following:

11. [21]

    Ms Dos Santos also made this note of her review on 14 December 2017 in which the appellant was still referring to the persecutory delusions:

12. [22]

    Also within the brief of evidence was the report of Dr Adam Martin, Forensic Psychiatrist, dated 31 January 2019. He had been asked by the Crown to specifically consider whether the defence of mental illness was available to the appellant. He concluded that it was, explaining that:

13. [23]

    The appellant tendered a report of Dr Jonathon Adams, Psychiatrist, dated 5 December 2018 that concluded relevantly:

14. [24]

    There was evidence of observations of the appellant’s parents and a TAFE colleague regarding strange assertions made and odd behaviour exhibited by the appellant in the days prior to 22 September 2017. First an email to his father on 13 September:

15. [25]

    A TAFE classmate of the appellant, Charles Porter, provided a statement to the police in which he described his observations of the appellant’s behaviour on 20 September 2017 just two days prior to the collision:

16. [26]

    The appellant’s statement to police taken on 14 November 2017 recorded that his last memory before waking up at Port Macquarie Hospital after the collision was parts of the trip home from Grafton with his TAFE colleagues. He stated that he does not recall arriving home from the Grafton trip or anything at all about the day of the collision.

17. [27]

    A statement of Sergeant Hall recorded that the appellant had left his two young children aged 9 and 11 at home unsupervised after they arrived home from school. Sergeant Hall reported this conversation with the appellant’s 11-year-old daughter:

18. [28]

    It was common ground that the appellant was observed overtaking at speed on the wrong side of the road on Hastings River Drive, he then went briefly to the correct side of the road and then suddenly veered to the right again over unbroken double lines into oncoming traffic colliding with Mr Ashenden’s car. Mr Ashenden had little time, if any, to react.

19. [29]

    Paramedics attended on the appellant at the scene and observed that he was semi­conscious and wearing only a shirt and underpants. They also observed lacerations to his left wrist and a puncture wound to the left side of his chest that was not consistent with an injury sustained in the course of the collision. When asked about this some weeks later, the appellant had no recollection of inflicting those injuries to himself, or of feeling suicidal.

20. [30]

    A blood sample was taken from the appellant on 22 September 2017 at 6:15pm which detected no substances in the appellant's blood that would have impaired his driving.

21. [31]

    A report prepared at the Brain Injury Unit of the Royal Rehabilitation Centre Sydney outlined the following post collision treatment course:

The hearing

1. [32]

   On 22 October 2019 the trial judge made an order for a judge alone trial which had been requested by the appellant and consented to by the Crown. He invited the Crown to indicate its position on the “M’Naughten defence”. The Crown Prosecutor indicated that the defence was available to the appellant and that the expert opinion was unanimous on that matter.

2. [33]

   The proceedings were stood over to 1 November 2019 when a different Crown Prosecutor but the same counsel for the appellant, Mr Neild, engaged in some discussion with the trial judge about M’Naughten. His Honour requested written submissions given his stated perception that there was a divergence of views as to the application of that case to offences that do not have intent as one of its elements.

3. [34]

   The proceedings were stood over to 20 December 2019 but for various reasons the matter was unable to be dealt with on that day and so was set down for further hearing on 21 February 2020 in Sydney.

4. [35]

   On this occasion his Honour opened with the following remarks:

5. [36]

   There was then an exchange with counsel about the expert reports and their conclusions, including both counsel attempting to assist the trial judge as to how they saw the experts’ conclusions as satisfying the relevant test:

6. [37]

   The Crown Prosecutor also attempted to assist his Honour with the expert evidence and the relevant facts that underpin that evidence:

7. [38]

   The Crown Prosecutor then took his Honour to a text book:

8. [39]

   His Honour adjourned the matter to a date to be fixed to arrange for the attendance of Dr Adams and Dr Martin.

9. [40]

   I accept the submission of the Crown on this appeal that this was, at least at this stage, an arrangement directed towards providing procedural fairness to the appellant, given his Honour’s indication that he was not persuaded that the opinions of Dr Martin and Dr Adams were sufficient to demonstrate that mental illness was made out.

10. [41]

    On 18 May 2020 the matter was listed again before his Honour for the hearing of the evidence of Dr Adams and Dr Martin.

11. [42]

    Dr Adams gave evidence that, as he expressed in his report dated 5 December 2018, (summarised above), the appellant was suffering from symptoms of schizophrenia at the time of the alleged offence, namely persecutory delusions, thought disorder and disorganised behaviour. [4]

12. [43]

    Dr Adams rejected the proposition put to him by the trial judge during one of his more lengthy interventions that the appellant was acting rationally when he got in his car on 22 September 2017 to “take himself to the hospital”, stating that the appellant "is someone who in my view has seriously decompensated to such an extent that we know that he harmed himself, we know then that he left his children unaccompanied even though he was the sole carer of his children and then engaged in an act that appears to be uncharacteristic with what I know of his behaviour prior so I couldn't say as an expert that that behaviour is rational". [5]

13. [44]

    His Honour raised with Dr Adams that there was a gap in the evidence about whether the appellant was labouring under a persecutory delusion that he was being pursued by bikies. Dr Adams explained that there was a need to look at what we know in terms of the chronology and that includes "clear evidence" based on his account and others, that the appellant was enduring persecutory delusions prior to the collision and afterwards, so on balance it was Dr Adams' opinion that the appellant was also experiencing those delusions at the time, explaining that persecutory delusions don't suddenly appear one day, go away and then suddenly come back: “We know they’re still there in their thought processes”. [6]

14. [45]

    Dr Adams explained that he framed his opinion by reference to the appellant's capacity to understand fully the moral wrongfulness of his behaviour, rather than whether or not he knew what he was doing was morally wrong, because from a forensic psychiatric perspective the appellant's understanding is on a spectrum, rather than "purely black and white". Dr Adams gave evidence that on a spectrum, the appellant had some capacity to understand the wrongfulness of his behaviour, but he could not know what he was doing was wrong because he could not reason about that matter with a moderate degree of sense and composure. (emphasis added)

15. [46]

    Dr Adams further explained that not knowing the nature of the appellant's persecutory beliefs at the time was not fatal to a proper consideration of whether the appellant was capable of considering the nature of his acts, because it is not purely because of the persecutory delusions that he could not reason with a moderate degree of sense and composure. It was because of the “constellation of his symptoms”, “namely persecutory delusions, thought disorder, and disorganised behaviour together with his level of distress”. It’s that combination of symptoms which in Dr Adams’s view, “speaks to his capacity and impaired his capacity”. [7]

16. [47]

    The Crown Prosecutor traced through with Dr Adams in cross-examination the evidence upon which Dr Adams based his conclusions, namely the fact of the appellant’s 2011 involuntary admission and compulsory Community Treatment Order, the similarity of the nature of the persecutory beliefs he suffered in 2011 involving bikies and police officers, that they continue, the evidence of Mr Porter and the appellant’s strange emails to his parents in the period shortly prior to the collision, the scene at home - the blood from the self-harm attempt and the young children left alone. Dr Adams confirmed that an act of self-harm is consistent with a person who suffers from schizophrenia, that the persecutory beliefs might fluctuate and disorganised behaviour can be present in differing degrees and so the appellant could still complete a 12-week TAFE course and look after his children, despite his difficulties.

17. [48]

    Dr Martin then gave evidence. He indicated that he agreed generally with the opinion expressed by Dr Adams but stated: "I would be a little stronger I think in saying that I think the evidence is very strong that he was mentally ill". Dr Martin gave evidence that the appellant's appreciation of the wrongfulness of his conduct was "extremely limited" and it was "highly likely to have been informed by symptoms of mental illness and disorder". He explained that the fact that the appellant had driven so dangerously is, in the context of preceding mental illness, consistent with disorganised, erratic and disinhibited behaviour while mentally ill. [8]

18. [49]

    Dr Martin also clarified that the appellant's completion of a TAFE course shortly before the collision and his capacity to drive were not inconsistent with mental illness. [9]

19. [50]

    The matter was adjourned to 12 June 2020 for further argument. On that date the appellant made an application that his Honour disqualify himself, on the basis of apprehended pre-judgment and bias. It was submitted that there were three factors, that, when considered together, might give rise to a reasonable apprehension of bias (as per the appellant's counsel's written submissions dated 10 June 2020):

20. [51]

    The Crown opposed the appellant's application, submitting that "your Honour sitting as a judge alone and deciding the issues that have to be decided is entitled to ask questions and to test areas of evidence that give your Honour difficulty" and that "in my view and on reading of the transcript your Honour has not prejudged the issue either in fact nor by the appearance of bias".

21. [52]

    By judgment on 12 June 2020 his Honour refused the appellant's application. In justifying his intervention in the proceedings, his Honour observed that the “absence of a contradictor” allows for “some leeway being given” to a trial judge in the questioning of expert witnesses and that the questions asked by him was an attempt "to elucidate the reasoning process of the two psychiatrists leading to their opinions that the accused met the second limb of M'Naughten". His Honour concluded that his questioning was justifiable and did not result in a miscarriage of justice. He did not accept that a fair-minded observer would have thought his questioning exhibited bias or pre-judgment.

The Decision

1. [53]

   On 14 July 2020 his Honour delivered judgment, finding the appellant guilty of both offences. His Honour summarised the Crown case and determined that each of the elements of both offences were proved beyond reasonable doubt.

2. [54]

   His Honour then went on to consider the defence of mental illness. His Honour held that such a defence was available for charges of dangerous driving under s 52A of the Act and proceeded to consider whether it was established in the appellant's trial.

3. [55]

   His Honour was satisfied on the balance of probabilities that at the time of the collision the appellant was labouring under a defect of reason caused by disease of the mind, namely schizophrenia.

4. [56]

   His Honour went on to state that the second limb of the M'Naughten test required "no capacity at all to consider with some degree of composure and reason or with some moderate degree of calmness, the moral quality of what he is doing" and found that the evidence of both doctors did not reach this threshold because the appellant "had some capacity at the time of the collision to consider with some degree of composure or with some moderate degree of calmness of the moral wrongfulness of his actions". Whether this interpretation of the test was correct is a key issue in this appeal.

5. [57]

   His Honour rejected the opinions of both experts on the basis they could not reach the expressed opinions because they did not know "the precise state of mind of the accused at the time of the collision". His Honour determined that the appellant made a decision to drive to the hospital to seek medical assistance for the cut to his wrist and observed that it was inconsistent with "that rational decision" that the appellant "was so out of touch with reality that he had an extremely limited capacity to understand the moral wrongfulness of the dangerous manner in which he was driving".

6. [58]

   His Honour also found that an alternative inference that may explain the appellant's driving was that he was making another attempt at self-harm, and his Honour did not accept "that a decision by a person to self-harm necessarily means that the person is incapable of reasoning about the right or wrongness of their conduct".

7. [59]

   His Honour was therefore not satisfied that the defence of mental illness was established, and found the appellant guilty on both counts of dangerous driving.

Ground 1: His Honour’s intervention in the conduct of the trial was excessive, giving rise to procedural unfairness or an apprehension of bias, and caused a miscarriage of justice

1. [60]

   It is the appellant's case that the trial miscarried due to a denial of procedural fairness arising from his Honour's excessive intervention in the course of hearing the oral evidence of expert witnesses Dr Adams and Dr Martin, and alternatively, because his Honour's interventions gave rise to an apprehension of bias.

2. [61]

   The appellant submitted that this ground should be addressed before turning to other grounds of appeal, because it strikes at the validity and acceptability of the trial and its outcome: (Tarrant v R [2018] NSWCCA 21 ("Tarrant") at [7] and [8]).

3. [62]

   The Court was assisted by the following analysis of the relevant principles in the appellant’s written submissions. The cases in which the issue of excessive judicial intervention has been the subject of consideration are summarised in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 (“Nguyen”) by Ward JA (as she then was) at [162] to [172). The following principles emerge:

4. [63]

   While his Honour's questioning of the expert witnesses occurred in a judge alone trial without a jury, and commenced when it was clear that the issue to be determined was whether it could be proved on balance that the appellant did not appreciate the moral wrongfulness of moving his vehicle into the path of an oncoming car, the appellant submitted that it could be observed from the summary below that this conduct and questioning by the trial judge created a real danger that the trial was unfair.

5. [64]

   The questioning of Dr Adams by the appellant's counsel commenced at page 3 of the transcript of 18 May 2020. His Honour took over the questioning at page 4, asking the following questions:

6. [65]

   At the bottom of page 5 his Honour said to the appellant's counsel, "I will hand it back to you" [21] and the appellant's counsel asked a further five questions confirming Dr Adams' opinion that he could not opine one way or the other as to whether the appellant did not know the nature and quality of the act that he was doing (the first limb of the M’Naughten test). [22] His Honour then resumed the questioning of Dr Adams:

7. [66]

   On page 8 his Honour allowed the appellant's counsel to continue his questioning. [36] The appellant's counsel took Dr Adams to his opinion that the appellant did not have the capacity to understand the moral wrongfulness of what he was doing [37] . His Honour then raised with the appellant's counsel what conduct it was that the appellant did not realise was morally wrong and that it was the appellant's driving at the time of the collision that was the conduct in question. [38] A further discussion ensued between his Honour and counsel about whether the appellant was able to have some capacity to understand the wrongfulness of his actions and still fall within the second limb of the defence of mental illness, [39] after which his Honour started questioning Dr Adams again, asking the following:

8. [67]

   His Honour briefly handed the questioning back to the appellant's counsel on page 12, [46] only asking one further question about the level of the appellant's capacity to understand the wrongfulness of his acts, [47] but resumed questioning Dr Adams on page 14, asking the following:

9. [68]

   His Honour directed the questioning back to the appellant's counsel [62] who asked only two further questions, [63] confirming Dr Adams' opinion that the appellant could not reason with a moderate degree of sense and composure such that his capacity to understand the wrongfulness of his actions was impaired [64] and the defence of mental illness is available. [65]

10. [69]

    As a bare number, in the course of evidence-in-chief from Dr Adams the appellant's counsel asked about 31 questions and his Honour asked about 45 questions.

11. [70]

    I interpolate here the observation that it is self-evident that the nature of the questions by his Honour were not only closed questions, but many of them were structured in a disbelieving fashion or contained challenging or dismissive language. Nearly every question was at best, argumentative, rather than exploratory.

12. [71]

    The Crown Prosecutor commenced his cross-examination of Dr Adams at page 16, [66] and took Dr Adams through the evidence regarding the appellant's mental illness and its various manifestations in the period prior to the collision [67] and after the collision [68] to make the point that the appellant suffered from persecutory beliefs between, at least, 2011 and 2018. [69] Dr Adams confirmed his opinion that it was most likely that the appellant could not reason with a moderate degree of sense and composure about his behaviour at the material time. [70] It was clear that the purpose of the Crown's cross-examination of Dr Adams was not to challenge Dr Adams' opinion, but to elaborate why it was validly held.

13. [72]

    The Crown Prosecutor's cross-examination of Dr Adams was largely uninterrupted by questions from his Honour, which were limited to the following questions at pages 27 to 28:

14. [73]

    After very short re-examination of Dr Adams, [76] his Honour asked one further question:

15. [74]

    In total, his Honour asked over 50 questions of Dr Adams in the course of his evidence.

16. [75]

    Dr Martin then gave evidence. After the Crown Prosecutor had asked 13 questions, his Honour commenced questioning Dr Martin, as follows:

17. [76]

    After this questioning by his Honour, the Crown Prosecutor indicated he did not wish to ask any further questions. [88] The appellant's counsel commenced his cross­-examination at page 35, confirming that Dr Martin's view that the defence of mental illness was available to the appellant on the basis of the second limb of the M’Naughten test. [89]

18. [77]

    His Honour then commenced further questioning of Dr Martin:

19. [78]

    The appellant's counsel resumed cross-examination [97] and tried to ask whether the degree of impairment of the appellant's capacity to reason about the wrongfulness of his behaviour was such that he was effectively deprived of that capacity. This was a significant issue in the application of the second limb of the M’Naughten test. However his Honour intervened as follows: [98]

20. [79]

    The appellant's counsel asked two further questions [99] and there was one further question by the Crown Prosecutor in re-examination. [100] There was by that point no further questions from his Honour. His Honour asked about 17 questions of Dr Martin.

21. [80]

    The appellant made the following written submissions about these interventions:

22. [81]

    The appellant noted that many of these issues were raised in the application by the appellant that his Honour disqualify himself. In refusing the application his Honour sought to justify his interventions, stating that there was an “absence of a contradictor” and the agreement between the parties that the mental illness defence was available was “somewhat unique” and this “provides some leeway to the trial judge in the questioning of witnesses, in particular in this case, expert witnesses”.

23. [82]

    As submitted by the appellant however, the absence of a contradictor in criminal proceedings is not unique. The obligation of a prosecutor is to act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one (Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 per Deane J at [663] to [664]). Accordingly, where appropriate, the Crown and defence may well be, and often enough are, in agreement about evidence that may favour the accused. The Court should not be anxious to second guess the prosecutor's obligation to act with fairness by entering the arena to pursue a contrary position.

24. [83]

    The appellant submitted that in any event, his Honour's questions are not properly characterised as careful and clinical testing of the evidence in exercising special caution as to its acceptance. Instead they were argumentative, aggressive and disbelieving.

25. [84]

    His Honour indicated that “the questions I asked the two psychiatrists was an attempt by me to elucidate the reasoning process of the two psychiatrists leading to their opinions that the accused met the second limb of M'Naughten" and referred to his interventions as "seeking and giving them the opportunity to expose their reasoning process". The appellant submitted that this mischaracterised what occurred. His Honour's questions were not aimed at removing doubt about what the witnesses meant by their evidence. Rather, his Honour was putting an argument to the witnesses under the guise of a question, or seeking to persuade the witness to his Honour's point of view.

26. [85]

    The appellant argued that his Honour's approach was inconsistent with a search for clarity in the evidence. It was more likely to impede the witnesses in giving their opinions in such a way as to do them justice, or to result in a witness making concessions which would otherwise not have been made (Royal Guardian Mortgage Management Pty Ltd v Nguyen per Basten JA at [19]).

27. [86]

    Instead, his Honour's questioning suggested that he had closed his mind to further persuasion, moved into counsel's shoes and "into the perils of self-persuasion". This was not a case where his Honour's opinion prior to questioning the experts might be characterised as provisional, put forward to test the evidence and to invite further persuasion. It likely impacted on his Honour's ultimate conclusion that "those opinions expressed by Dr Adams and Dr Martin are based more on speculation and conjecture than upon proven facts and proven assumptions", a conclusion that was quite extraordinary given the collective and recognised experience of both psychiatrists.

28. [87]

    The appellant ultimately submitted that his Honour's questioning of the experts demonstrated “an egregious departure from the role of a judge presiding over an adversarial trial” and compromised his Honour's advantage in objectively evaluating the evidence from a detached distance. It also may have impacted on the concessions made by the experts in response to questions from his Honour about other explanations for the appellant's behaviour and the degree to which the absence of direct evidence about the appellant's mental state impacted on the availability of the defence.

29. [88]

    In all these circumstances the appellant submitted that it was impossible for this Court to say whether or not his Honour's fact finding proceeded from a clouded, or clear headed, evaluation of the evidence. There is the real danger his Honour's conduct resulted in an unfair trial and a miscarriage of justice.

30. [89]

    In the alternative, the appellant submitted that his Honour's conduct in cross-examining the expert witnesses, as summarised above, gave rise to an appearance of bias.

31. [90]

    An application was made on 12 June 2020 for his Honour to disqualify himself on the basis of apprehended bias. In refusing the application his Honour referred to the correct test and held that the extended manner in which he questioned the psychiatrists did not transgress the proper function of a trial judge in a judge alone trial and that he had not prejudged any issue or held any fixed view. However, his Honour's decision is of limited assistance in determining the issue, because it may be assumed that a judge who is conscious of having formed so clear a view that he is unlikely to be persuaded from it would not sit to hear the case, such that this Court is instead reviewing the decision of a judge who is confident of his ability to decide the case impartially (British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 ("Laurie") per Heydon, Kiefel and Bell JJ at [137]). Accordingly, this Court should form its own view as to the creation of a reasonable apprehension of bias (Tarrant v R at [20]).

32. [91]

    The test for determining the appearance of bias is whether fair-minded people might reasonably apprehend or suspect that the judge might not bring an open and impartial mind to the resolution of the issues (Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 per Mason CJ and McHugh J at [47]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]).

33. [92]

    As stated by the Court (Basten JA, RA Hulme J and Hidden AJ) in Tarrant v R at [9]:

34. [93]

    In assessing the hypothetical reaction of a fair-minded observer he or she must be attributed with knowledge of the actual circumstances of the case (Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 at [87]). To that end, in refusing the appellant's disqualification application, his Honour held that a fair-minded lay observer would have understood that the purpose of his questioning was to elucidate and understand the evidence of the expert witnesses "rather than exhibiting bias or pre­judgment on [his] part". However, the purpose of protecting confidence in the administration of justice is itself in danger of being undermined if the level of sophistication required of the lay observer is overstated (Tarrant v R at [10]). The appellant submitted that his Honour's assessment that the lay observer would understand his questioning as an attempt to elucidate the reasoning process of the psychiatrists not only mischaracterised what occurred (as argued above) but also goes well beyond any limited understanding of a lay observer that modern judges are likely to intervene in the conduct of the proceedings and in so doing may well express tentative opinions on matters in issue (Laurie per Heydon, Kiefel and Bell JJ at [132]).

35. [94]

    The appellant placed reliance upon on the observations of Kirby P in Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 about circumstances in which the sentencing judge in that case departed from neutrality, giving rise to a reasonable apprehension of bias (at [608]):

36. [95]

    The appellant drew an analogy to the situation here, submitting that in the appellant's trial, his Honour's cross-examination of the experts was directed solely towards non-acceptance of their opinions, grew in intensity and insistence and lacked the elements of dispassion and neutrality that are appropriate in the performance of the judicial function, giving rise to the appearance that his Honour held a pre-judged position against the expert evidence that was immoveable. The appearance of pre-judgment was fortified by his Honour's reasons in his final judgment on 14 July 2020 for rejecting the evidence of the expert witnesses which included repetition of those matters cross-examined on by his Honour. A fair-minded person might reasonably apprehend on the basis of what occurred that his Honour had departed from impartial decision-making.

37. [96]

    In its written submissions the Crown emphasised the context - a judge alone trial - and the requirement of modern litigation that judges do more than sit in sphinx like silence until judgment but that a judge should set out his or her tentative views. The reasonable observer would understand this: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [13] per Kirby J.

38. [97]

    The kind of excessive or inappropriate judicial intervention required to make out the ground, recognising that the bases of procedural unfairness and apprehended bias are distinct, is better set out by Kourakis CJ in R v T, WA at [38]:

39. [98]

    The Crown submitted that application of the principles depends on the case. Here there was no jury and so more latitude may be allowed: see Simpson AJA in Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67 at [183]:

40. [99]

    The Crown submitted that the circumstances of the calling of the two doctors must be seen in the context of his Honour having outlined his difficulties with what he saw as inadequacies in their reports and the appellant’s counsel asking for an adjournment to allow that to occur. [110] The Crown also sought to explain in its written submission why his Honour’s concern about the inadequacy of the experts’ views was correct, but (as explained below, in the discussion of Ground 2), these submissions are based on select and incomplete quotes from the cases.

41. [100]

    In its written submissions, the Crown acknowledged that his Honour interrupted Dr Adams, submitting orally that if his Honour employed “undue rigour” and “crossed the line, so be it”. It was submitted however that evidence was given by AVL and it is unclear “how much that played a part”. It was submitted that there may have been “accidental overtalking” and that many instances were simply his Honour seeking clarification, or arose because Dr Adams was “straying from an answer”.

42. [101]

    It is difficult now to assess to what extent AVL delays between question and answer played a part, but the content of the questions by his Honour suggests that it was his Honour’s dissatisfaction with the answers that were being given that was at play, rather than AVL issues.

43. [102]

    In relation to the assertion that Dr Adams was “straying from an answer”, the two examples given in the Crown’s written submissions do not support that assertion. The first example was this:

44. [103]

    In the second example given, Dr Adams was interrupted by his Honour and prevented, until a little later, from answering the question he was asked:

45. [104]

    Dr Adams was politely re-directing his Honour to the importance of those matters in the wider clinical picture and the rationale for his opinion as a psychiatrist as to why those matters were important. Despite interruption, he was able to express his view.

46. [105]

    What both those examples demonstrate is precisely what is complained of by the appellant. Dr Adams was answering a question from his Honour and was cut off when the beginning of the answer did not coincide with his Honour’s views. Dr Adams was able to complete the answers he was seeking to give, later in the exchange. There was no “straying”.

47. [106]

    In respect of Dr Martin, the Crown pointed out in its written submissions that the Crown Prosecutor was able to “obtain the opinion he sought consistent with the defence of mental illness” from Dr Martin.

48. [107]

    Unlike Dr Adams, Dr Martin was permitted to complete a number of long explicatory answers without interruption from the trial judge. His final answer given in re-examination draws together the evidence and his rationale for concluding the second limb of M’Naughten is made out: [113]

49. [108]

    I reject the submission that there was a real question as to whether the experts had properly applied the test in deciding whether the mental illness defence was made out. Their role was to provide clinical analysis and expertise to the question of whether the appellant was unable to reason as to the matter - that is, the wrongfulness of his actions - with a moderate degree of sense and composure. They did so both in their reports and in their oral evidence. The problem was his Honour’s repeated misstatements of the test and thus misguided attempts to have counsel and the experts address the incorrect issue.

50. [109]

    Nonetheless, the Crown submitted that having examined the questions and answers of each witness, the experts were not compromised in their ability to voice and explain their opinions.

51. [110]

    I accept that submission. Despite his Honour’s interventions, in end result, counsel for the appellant and the Crown Prosecutor were able to elicit opinions that were consistent with the defence of mental illness, and the oral evidence of both doctors provided elucidation and further clarity, to the extent that any was needed. There was no procedural unfairness because the doctors were able to persist and their views were clearly and adequately articulated, despite the interruptions. For that reason, the “disruption” ground is not made out.

52. [111]

    The appellant says, (in the alternative), this Court should find that there was a miscarriage of justice because the trial judge’s interventions gave rise to an apprehension of bias.

53. [112]

    The NSW Court of Appeal, comprising Bell P (as he then was), Basten JA and Simpson AJA, recently examined whether conduct of a judge in a particular context could support a claim of apprehended bias: Polsen v Harrison [2021] NSWCA 23. At [46] a number of principles were extracted of specific relevance to the circumstances here. They are:

54. [113]

    What the circumstances at the appellant’s trial demonstrate is an incredulous judicial officer who deployed interruptions, a dismissive attitude, an occasional loud voice and/or an incredulous tone in the context of a robust exchange with professionally qualified expert witnesses. There was no jury to be influenced. He had forewarned counsel some months before of the difficulties he had with what he saw as inadequacies in the experts’ written reports. The interventions, founded on a misconception of the correct test, were excessive and misguided, but did not in my view amount to circumstances where a fair-minded lay observer might reasonably apprehend on the basis of what occurred, that his Honour had departed from impartial decision-making.

55. [114]

    In this unusual situation, the hypothetical reasonable observer would, in my view, have an understanding that the judge thought the experts were off track and that he was, perhaps over-zealously but in the absence of any contradictor, trying to have them address what he thought was the correct test, and to robustly test their views and ensure that they had considered everything. This situation does not amount to apprehended bias in all the circumstances. The “bias” ground is not sustained.

56. [115]

    Ground 1 of the appeal is therefore not made out.

Ground 2: His Honour applied the wrong test in determining that the appellant had not established that he was mentally ill at the time of the alleged offences

1. [116]

   Whether the appellant was mentally ill was to be determined according to the “M'Naughten Rules”:

2. [117]

   The second limb of the M'Naughten Rules allows that the defence of mental illness can be established if a person fails to understand, in a deep and considered sense, the moral wrongfulness of his or her acts (Carter v R [2019] NSWCCA 11; [2019] ALMD 4087 ("Carter") per Button J at [300], affirmed in TA v R [2019] NSWCCA 145 per Walton J at [18]).

3. [118]

   The appellant submitted that his Honour applied the second limb of the M'Naughten Rules as if it required the appellant to prove, on balance, that he was "incapable" or "quite incapable" of reasoning as to the wrongfulness of his acts, or that it was "impossible" for him to so reason. His Honour stated the test as follows:

4. [119]

   This is also clearly reflected in his Honour's exchanges with counsel regarding the nature of the test.

5. [120]

   His Honour found that because the opinions of Dr Martin and Dr Adams implied that the appellant "still had some ability or capacity to understand or appreciate the wrongfulness of his actions" the defence was not established. This was an error.

6. [121]

   The appellant submitted that his Honour relied on selected and incomplete passages from Dixon J's summing up to a jury in Porter at [189] to [190] to arrive at the test that the appellant must show he was incapable or quite incapable of reasoning as to the moral wrongfulness of his act. His Honour did not however refer to the following passage from Dixon J's summing up (at [189] to [190]):

7. [122]

   The appellant argued that this passage makes it clear that the test is not one of the appellant being incapable of reasoning as to the wrongfulness of his actions, but being unable to reason as to that matter with a moderate degree of sense and composure. It was the test applied by each of Dr Martin and Dr Adams (see for example Dr Adams' report at p 16, Dr Martin's report at [57]).

8. [123]

   A further problem highlighted by the appellant was that although his Honour also referred to Dixon J's observation in Sodeman at p 215 that "[i]n general it may be correctly said that, if the disease or mental derangement so governs the faculties that it is impossible for the party accused to reason with some moderate degree of calmness in relation to the moral quality of what he is doing, he is prevented from knowing that what he does is wrong", his Honour ignored the entirety of the relevant passage in Sodeman where Dixon J observed at p 215 to 216 that the test was not as simple as a question of impossibility of reasoning, as follows:

9. [124]

   The appellant submitted that the circumstance that he retained some capacity to understand that driving his vehicle at speed into an oncoming car is wrong does not mean he could reason as to the wrongfulness of his acts with a moderate degree of sense and composure. A very young child has some capacity to understand certain actions are wrong but the law of doli incapax recognises that such understanding is insufficient for the child to be liable to criminal punishment. Similar considerations apply in respect of someone who is mentally ill. As recognised by Button J in Carter, it is not enough that a person would appreciate the legal or superficial wrongfulness of what he or she was doing (Carter per Button J at [300]). The question to be determined was whether the appellant understood "in a deep and considered sense" the moral wrongfulness of his acts. The evidence of both experts, as outlined in relation to ground 3 below, clearly established that the appellant did not so understand.

10. [125]

    It was submitted that his Honour's application of the wrong test was an error of law going to the heart of the issue to be determined. It cannot be said that the convictions were inevitable or that there was no substantial miscarriage of justice. If this ground of appeal is successful the matter should be remitted to the District Court for retrial.

11. [126]

    The Crown submitted that consideration of how the second limb of the M’Naughten test should be applied begins with the articulation by Dixon J to the jury in Porter at [189] to [190]:

12. [127]

    Dixon CJ, Webb and Kitto JJ in Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56 used similar terms to explain the second limb of M'Naughten:

13. [128]

    Miller JA, (Steytler P and Wheeler JA agreeing), in Hone v The State of Western Australia (2007) 179 A Crim R 138; [2007] WASCA 283 at [136] referred to the evidence of a psychiatrist called on behalf of the accused given in a case before a judge sitting alone where a defence of mental illness was relied upon:

14. [129]

    Capacity is on a spectrum, as explained by Dr Martin. At some point, a person suffering a mental illness may be so mentally unwell, that they no longer are able to reason that their acts are wrong.

15. [130]

    The Crown referred to s 28(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which now creates a defence of mental health impairment on the basis that an accused did not know that the act constituting the offence was wrong reflecting the common law:

16. [131]

    The Crown submitted that in s 28(1)(b), once again, the incapacity of the accused to know that the act was wrong, is what is required to be proven. A mere impairment, despite the title of the section in the legislation, is not sufficient.

17. [132]

    The Crown submitted that while the appellant relies upon what Button J said in Carter at [300] and what Walton J later said in TA v R at [18]. Button J in Carter earlier referred to Porter and Stapleton as authorities that were applicable to the case at [36]. So did Payne JA at [19]. The reference at [300] was also relevant to what Button J said later at [314] to [315] regarding the difference between legal wrongfulness and moral wrongfulness.

18. [133]

    Walton J said in TA at [18], following Button J in Carter at [300]:

19. [134]

    What both Button J and Walton J referred to was a "failure to understand". Again, this does not speak of “an impairment” but of “incapacity”, and so the trial judge was correct to require proof that the person in question was incapable of reasoning as to the wrongfulness of his act.

20. [135]

    The Crown also sought to illuminate its argument by comparing the “substantial impairment” defence and submitted that if the test for mental illness is “watered down” inappropriately, it amounts to no more than a “substantial impairment” defence.

21. [136]

    Dealing with the last submission first, the argument was put, as I understand it, to illustrate that it is not sufficient to establish the defence of mental illness to demonstrate only a “disordered mind” or “defect of reason”. That much is true, but is beside the point. Nobody was suggesting that was the test.

22. [137]

    The reference to s 28 of the new Act is misplaced. Given the savings and transitional provisions of the Act, s 28 has no application to this determination. It appears to be a submission that s 28 informs the wider debate. Again however, the Crown’s submission attempts to add something to the wording of s 28 that is not there - that there has to be “an incapacity” of the appellant to know the act was wrong. That is not what s 28 says nor requires.

23. [138]

    The test does not require a total absence of capacity. At [23] of the Crown’s written submissions on the appeal, it was submitted that both Dr Adams and Dr Martin were applying the wrong test because the cases do not speak of “impairment” but of “incapacity”. The submission goes on to quote from Sodeman v R (1936) 55 CLR 192; [1936] HCA 75 ("Sodeman") per Dixon J at [215] and [216]:

24. [139]

    However, this submission overlooks a number of matters. First, the quote from Sodeman set out in [137] above is incomplete and taken out of context. There, Dixon J was discussing the type of questions a jury or judge may pose for themselves, given the “false appearance of simplicity” in the “formula already quoted from M’Naughten case”.

25. [140]

    Second, the part of Dixon J’s discussion that was omitted from the Crown’s submission, actually illustrates the question raised by the second limb of M’Naughten and that is “what degree of capacity to think whether his act is wrong, is required”. The omitted part refers to some illustrative approaches taken by judges in other cases:

26. [141]

    Third, nothing at all is said in Dixon J’s judgment to suggest incapacity is the test. The question is the “capacity to know”, not a requirement that the person in question prove “incapacity” to know in some absolute sense. His Honour engaged in the same erroneous approach when he interrupted counsel during their questioning of the experts to insist the test was “incapable” meaning “no ability or capacity”. [128]

27. [142]

    The submission made by the Crown in its written submissions that Dr Adams had “difficulties” in his evidence is a submission that should be rejected. Dr Adams was polite, and attempted on multiple occasions to redirect, politely, his Honour’s attention to the clinical realities and the role of a forensic psychiatrist, as opposed to what his Honour wanted him to address based on his Honour’s erroneous understanding of the matter of which he needed to be satisfied, that is his Honour’s perception that he needed the experts to identify the nature and the effect of a specific identified delusion being experienced by the appellant when he drove into Mr Ashenden’s car.

28. [143]

    The submission by the Crown that “the most important question”, (posed for Dr Adams by his Honour), was one Dr Adams had “difficulty with” misconceives both the test and the quality and content of Dr Adams’ answers. Ironically it was Dr Adams who redirected the Court to the correct test and concluded with a repetition of those key matters of which he could give evidence based on his expertise as a forensic psychiatrist that underpin why the second limb in M’Naughten was in fact met:

29. [144]

    This was later followed by the exchange with Mr Neild where his Honour again misquoted the second limb of M’Naughten test and cut across Mr Neild repeatedly as set out in par [77] of this judgment.

30. [145]

    Selective, incomplete and out of context quotes from authorities or applications of them by other courts in other cases does not assist the argument. Nor does that approach surmount the hurdle that his Honour’s judgment at p 39 in its final paragraphs sets out an incorrect statement of the test as a reason for rejecting the expert evidence and the submissions of both the Crown and the defence:

31. [146]

    That overstates the rigour of the test, which does not require that the accused be “disabled” or “quite incapable”. It suffices that by reason of the disease of the mind the accused cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing so that he does not know that what he is doing is wrong. This involves a lack of ability to reason with moderate composure, not a total incapacity to recognise that the conduct is wrong. Ground 2 should be upheld.

Ground 3: This Court should determine that the appellant was mentally ill at the time of the offences in accordance with s 7(4) of the Criminal Appeal Act 1912 (NSW)

1. [147]

   Section 7 of the Criminal Appeal Act provides for the “Powers of court in special cases”. Section 7(4) now provides as follows:

2. [148]

   Before March 2021, when the new Act commenced, instead of referring to “a special verdict of act proven but not criminally responsible should have been entered in respect of the appellant”, it referred to “the appellant was mentally ill, so as not to be responsible according to law for the appellant’s actions at the time when the act was done or omission made”.

3. [149]

   The appellant argued, correctly, in my view, that this Court’s role, as described by Payne JA in Carter at [13] and [14], is to examine the evidence and to act upon this Court’s view of that evidence. It is not a “de novo” hearing, but the Court can receive further material if necessary and draw inferences from all of the available evidence:

4. [150]

   Section 7(4) does not require error to be established on appeal, but rather directs this Court to consider the evidence in order to determine afresh whether the appellant has met the onus of establishing that he was mentally ill at the time of the offence (Carter at [26] per Payne JA and [281] per Button J).

5. [151]

   On 27 March 2021 the new Act commenced, restating the defence of mental illness in s 28. The new Act does not apply to the appellant's matter on appeal because the question as to whether the appellant was mentally ill at the time of the offence was raised before the commencement of the new Act: (clause 5(1) of Schedule 2 of the new Act). Thus the Mental Health (Forensic Provisions) Act continues to apply until a determination is made as to whether a special verdict should be entered or the defence is no longer being raised: (clause 5(2) of Schedule 2 of the new Act).

6. [152]

   However, in circumstances where this Court would have found the special verdict of not guilty by reason of mental illness, the Court must instead find the special verdict of “act proven but not criminally responsible” as provided by the new Act: (clause 5(3) of Schedule 2 of the new Act).

7. [153]

   There is no issue that the appellant has a "disease of the mind" being schizophrenia (report of Dr Adam Martin at [54]; report of Dr Jonathon Adams at p 15).

8. [154]

   The contestable question is whether this Court would be satisfied on the balance of probabilities that the appellant did not appreciate, in a considered way, the moral wrongfulness of driving his vehicle into the path of an oncoming car.

9. [155]

   The evidence of Dr Martin and Dr Adams establishes that the appellant could not reason with a moderate degree of sense and composure about whether his acts were wrong.

10. [156]

    Dr Adams stated in his report as follows (page 16):

11. [157]

    He maintained this opinion in his oral evidence.

12. [158]

    Dr Martin’s opinion was to the same effect as Dr Adams both in his report and in his oral evidence.

13. [159]

    The Crown submitted that because the appellant was not able to give an account of his mental state at the time of impact, the expert psychiatrists could not come to a concluded view on what his “motivation” was at the time he was driving prior to the impact and both psychiatrists asked themselves the wrong questions in their written reports.

14. [160]

    This submission misconceives the expert evidence and perpetuates the same misunderstanding of what the evidence needed to show to make out the second limb of M’Naughten that his Honour held. Further, it would be fundamentally unfair in circumstances where the evidence is clear that the appellant has no recollection of what occurred given his head injury and post traumatic amnesia, that he cannot avail himself of the mental illness offence because he cannot recall what he was “thinking” at the time. Any guesses as to what he was “thinking” that he offered to treating doctors and others during his treatment in November 2017 and following are nothing more than guesses.

15. [161]

    There did not need to be proof of a specific identified persecutory delusion in operation which drove the appellant’s actions and led to the situation that he could not reason about the matter with a moderate degree of sense and composure and understand the moral wrongness of his actions. It was the schizophrenia and its constellation of symptoms that he was suffering that were affecting the appellant at the time he drove into Mr Ashenden’s car. Those symptoms were persecutory delusions, thought disorder, disorganised behaviour and distress.

16. [162]

    The accident location information and annotated police photos of Hasting River Drive and the direction of the appellant’s vehicle at the time of the collision suggests that the appellant was actually driving away from the Port Macquarie Hospital, not towards it. He had attempted self-harm. He had left young children alone at home with no supervision. He was confused and distressed.

17. [163]

    The experts’ views, taking into account all those matters and the clinical presentation to the doctors and their assessments of him in the treatment period after the collision, support, on the balance of probabilities, that he was so affected by his schizophrenia symptoms of persecutory delusions, thought disorder, disorganised behaviour and distress, that he was not able to reason with a moderate degree of sense and composure that his act of driving into Mr Ashenden’s car was morally wrong.

18. [164]

    Accordingly he was mentally ill, so as not to be responsible, according to law, for his action at the time of the offences and so at the trial (under the old Act) there should have been a special verdict of not guilty by reason of mental illness. Pursuant to clause 5(3) of Schedule 2 of the new Act, this Court should substitute special verdicts of acts proven but not criminally responsible.

Evidence relevant to the appropriate orders

1. [165]

   Affidavits of Ms Psaltis, solicitor for the appellant, sworn 24 August 2021 and 3 March 2022 were read. Those affidavits disclose that in August 2021 the appellant was living in Queensland with his partner and complying with the requirements of the Intensive Correction Order imposed on him by way of sentence. There had been no warnings or breach proceedings for non-compliance. He was working as a building trade assistant and while living in NSW, had worked casually as a labourer. He was subject to a Community Treatment Order requiring an injection of an antipsychotic every three months. He was reviewed every six months by his treating psychiatrist for the purpose of reporting to the Mental Health Review Tribunal.

2. [166]

   The March 2022 affidavit deposed to the appellant continuing to live in Queensland with his partner, that he remained working three days a week as a building trade assistant and that he remained under the care of a treating psychiatrist for assessment, advice and necessary medication for his mental illness.

Orders

1. [167]

   I propose the following orders:

   1. (1)

      The appeal is allowed.

   2. (2)

      The convictions of the appellant in the District Court on 14 July 2020 for the offences of dangerous driving causing death contrary to s 52A(1)(c) of the Crimes Act 1990 (NSW) and dangerous driving causing grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1990 (NSW) and the sentence imposed on 20 September 2020 are quashed.

   3. (3)

      In lieu thereof, pursuant to clause 5(3) Schedule 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) substitute special verdicts of acts proven but not criminally responsible.

   4. (4)

      Discharge the appellant on the condition that he comply with all requirements of his Community Treatment Order and take medication prescribed to him by his treating psychiatrist.