HEADNOTE
[This headnote is not to be read as part of the judgment]
On 14 July 2020 the appellant was found guilty in the Sydney District Court of one count of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm. Both convictions arose out of a single event on 22 September 2017 when the appellant was driving on Hastings River Drive in Port Macquarie. The appellant crossed to the wrong side of the road and collided at speed with the front of another vehicle carrying a driver and one passenger. As a result of the crash one of those victims was killed and the other was seriously injured. At the time of the crash, the appellant was driving in only his shirt and underpants. Paramedics also observed lacerations to the appellant's left wrist and a puncture wound to the left side of his chest that were not consistent with an injury sustained in the course of the crash.
The issue at trial was whether the appellant should be found not guilty by reason of mental illness pursuant to what was then s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The trial judge was not satisfied that the defence was made out and convicted the appellant of both charges. The appellant was sentenced to an aggregate term of imprisonment of three years to be served by way of an Intensive Correction Order.
On appeal against the convictions, the appellant relied upon three grounds:
1. The trial judge'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. The trial judge 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. 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).
Held (per Lonergan J; Brereton JA and N Adams J agreeing), allowing the appeal, quashing the convictions imposed in the District Court and substituting special verdicts of acts proven but not criminally responsible and discharging the appellant on the condition that he comply with his Community Treatment Order:
In respect of ground 1:
1. Despite the interventions of the trial judge there was no procedural unfairness because the doctors were able to persist in their views which were clearly and adequately articulated: at [109] per Lonergan J.
2. What occurred at the applicant's trial is best characterised as a robust exchange between an incredulous judicial officer and professionally qualified expert witnesses. There was no jury to be influenced. The interventions of the trial judge during the expert evidence were founded on a misconception of the correct test, were excessive and misguided, but did not 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: at [112]-[113] per Lonergan J.
3. Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88; Polsen v Harrison [2021] NSWCA 23 considered.
In respect of ground 2:
1. The trial judge erroneously overstated the rigours of the legal test which the appellant was required to satisfy to successfully raise the defence of mental illness. The test does not require the accused to show that he was "disabled" or "quite incapable", but rather 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: at [145]-[146] per Lonergan J.
2. R v M'Naughten (1843) 10 CL & Fin 200; 8 ER 718; R v Porter (1933) 55 CLR 182; [1933] HCA 1; Sodeman v R (1936) 55 CLR 192; [1936] HCA 75 applied.
In respect of ground 3:
1. Both of the experts were of the view that, taking into account all of the relevant matters, including his attempted self-harm, his leaving his children unattended, his confusion and distress and his clinical presentation to the treating doctors and their assessments of him during the treatment period after the collision, that his schizophrenia symptoms of persecutory delusions, thought disorder, disorganised behaviour and distress affected him so 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. The appellant 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 special verdicts (under the old Act) of not guilty by reason of mental illness should have been entered: at [161]-[163] per Lonergan J.