Bell CJ, Harrison CJ, Sweeney J, Cavanagh J, Health J
Source
Original judgment source is linked above.
Judgment (4 paragraphs)
[1]
Criminal
Citation: R v Miller [2022] NSWSC 802
R v Miller (No 2) [2022] NSWSC 1347
Date of Decision: 03 June 2022
Before: Cavanagh J
File Number(s): 2020/182872
[2]
JUDGMENT
THE COURT: On 14 June 2022, following a trial before Cavanagh J and a jury, the applicant, Jordan Miller, was convicted of murdering his girlfriend, Emerald Wardle, on 20 June 2020.
He now seeks leave to appeal against his conviction and sentence. Cavanagh J sentenced him to 20 years imprisonment with a non-parole period of 13 years.
The applicant relies on three grounds of appeal in relation to his conviction. Grounds 1 and 2 are:
1. There has been a miscarriage of justice because of fresh evidence of the emergence of further symptoms and a diagnosis of schizophrenia after the trial.
2. The Court should determine, in accordance with s (7)(4) of the Criminal Appeal Act 1912 (NSW), whether, although the appellant committed the act charged against him, a special verdict of act proven but not criminally responsible should have been entered.
The Crown concedes that it would be open to the Court to uphold grounds 1 and 2, to allow the appeal, and to make the orders sought. For the reasons given below, that is the appropriate course. It is therefore not necessary for the Court to consider ground 3, which challenged the trial judge's construction of a provision of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act"), or to consider the grounds of appeal in relation to the sentence.
At trial it was not in dispute that the applicant had killed Ms Wardle by strangulation. He had also inflicted other injuries to her which were regarded as evidence of "a violent assault". It was accepted that the applicant killed Ms Wardle while experiencing a psychotic episode, and in the psychotically deluded belief that she was "a demon", which he reported in calls to an employee assistance line and Triple 0, and to police who attended the scene in response to the Triple 0 calls, shortly after he committed the acts which caused Ms Wardle's death.
The issue in the trial was whether the applicant was not criminally responsible for the crime of murder because at the time of his committing the act of killing Ms Wardle he had a mental health impairment such that he did not know the nature and quality of the act and did not know that his act was wrong.
It was the opinion of the expert psychiatrist called by the Crown, Professor David Greenberg, in summary, that the applicant was experiencing a drug induced psychosis, rather than symptoms of schizophrenia. The applicant had admitted having consumed LSD and cannabis on 9 June 2020, 11 days before he killed Ms Wardle. Although the evidence was that at the time of the killing he no longer had LSD in his system and was not intoxicated by LSD or cannabis, Dr Greenberg's evidence was that a drug induced psychosis persists beyond the timeframe of elimination of the drugs. Professor Greenberg qualified his opinion that the applicant met the criteria for a drug induced psychosis, by saying that he did not qualify for a diagnosis of schizophrenia, but "that doesn't mean he hasn't got it".
It was the opinion of Dr Olav Nielssen, psychiatrist, who gave evidence in the applicant's case, that at the time of the killing the applicant was suffering a first episode of psychosis of a schizophrenic illness. Dr Nielssen said he suspected the applicant had schizophrenia but did not diagnose schizophrenia at that time, in accordance with psychiatric conventions that a formal diagnosis of schizophrenia required a person to have symptoms for six months, absent drug use.
It was the opinion of both experts that if the applicant's symptoms were to persist, a diagnosis of schizophrenia could be made.
The jury's verdict indicated that they did not accept a defence of mental health impairment had been established.
The applicant now seeks to rely on fresh evidence that he has been diagnosed with schizophrenia. The Crown does not dispute that the evidence sought to be relied on is fresh evidence. The evidence is "fresh evidence", in the sense which this Court held in R v Abou-Chabake [2004] NSWCCA 356, in that it was not available to the applicant at the time of his trial, actually or constructively, and the Court is ultimately concerned with whether there has been a miscarriage of justice.
The applicant sought to rely on reports from Dr Natasha Rae, his treating psychiatrist, dated 21 September 2023 and Dr Olav Nielssen, dated 29 September 2023, which were not objected to by the Crown.
The Crown sought to rely on a report by psychiatrist Dr Kerri Eagle, dated 1 March 2024, which was not objected to by the applicant.
Dr Rae diagnosed the applicant with paranoid schizophrenia. She did so after having reviewed the records of the applicant's treatment in custody, his reported and observed symptoms, and having seen and treated him since March 2023.
She said although it was not clear at the time of the killing or his trial that the applicant had suffered a psychotic episode as a first presentation of schizophrenia, rather than a drug induced psychosis, she made her diagnosis because his symptoms did not resolve and he relapsed into psychosis in the absence of drug use.
Dr Nielssen agreed "with Dr Rae's diagnosis of schizophrenia, based on the recurrence of symptoms, and the persistence of signs and symptoms of psychotic illness for several years". He did so having again interviewed the applicant and having reviewed the records of his reporting symptoms in custody and his treatment in custody.
He therefore adhered to his original opinion that the applicant likely suffered an initial episode of schizophrenia at the time he killed Ms Wardle, which opinion was now confirmed by Dr Rae.
Dr Eagle, in a thorough report, reviewed the evidence at the applicant's trial. This included evidence of changes in his behaviour and reported psychotic symptoms in the months, weeks and days before the killing, his admitted use of LSD and cannabis, the circumstances of the killing, and his behaviour and account of the killing afterwards.
She considered the records of the applicant's behaviour, symptoms and treatment in custody from the time of his arrest until his reviews by Dr Rae and Dr Nielssen in late 2023. She assessed the applicant in an interview in February 2024.
She considered the reports by Professor Greenberg, and his evidence at the trial, the reports and evidence of Dr Nielssen, and Dr Rae's report and diagnosis.
Dr Eagle diagnosed the applicant with schizophrenia. She said he "has had an acute and prolonged episode of psychosis" which commenced before his offending conduct.
She said the applicant was likely in the early stages of psychosis when he took the half tablet of LSD on 9 June 2020, and that the episode of psychosis was potentially exacerbated by the use of substances, although LSD is less associated with psychotic episodes.
She referred to the demonstrated changes in the applicant's mood and behaviour, before he experienced frank psychotic symptoms, and his relapse or re-emergence of psychosis, while he was abstinent from substances, as consistent with schizophrenia.
She said her opinion, based on all available information, was that the applicant satisfied provisional diagnostic criteria for schizophrenia at the time of the trial and now clearly satisfies criteria for a diagnosis of schizophrenia.
She expressed the opinion that the applicant had a mental health impairment at the time of the killing, which was characterised by a psychotic disorder causing a temporary or ongoing disturbance of thought, mood, volition, perception or memory, which was significant for clinical diagnostic purposes and impaired his emotional wellbeing, judgment or behaviour. She opined that due to the mental health impairment the applicant did not know that his actions giving rise to the offence charged were wrong, on the basis that he acted in response to a delusion that Ms Wardle was a demon.
Relevant statutory provisions are ss 28 and 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. Section 28 relevantly provides:
(1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person
(a) did not know the nature and quality of the act, or
(b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).
(2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities.
(3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect.
…
A "mental health impairment" is defined in s 4 of the Act as follows:
(1) For the purposes of this Act, a person has a mental health impairment if
(a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
(b) the disturbance would be regarded as significant for clinical diagnostic purposes, and
(c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.
(2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons
(a) an anxiety disorder,
(b) an affective disorder, including clinical depression and bipolar disorder,
(c) a psychotic disorder,
(d) a substance induced mental disorder that is not temporary.
(3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by -
(a) the temporary effect of ingesting a substance, or
(b) a substance use disorder.
The applicant submitted that the fresh evidence confirms that at the time he killed Ms Wardle he was suffering from a first episode of psychosis arising from schizophrenia, not solely caused by his taking drugs, that the fresh evidence cogently supports a special verdict, and its unavailability at the trial means there has been a miscarriage of justice. He asks the Court to exercise its power under s 7(4) of the Criminal Appeal Act 1912, which relevantly provides:
If, on any appeal, it appears to the court that, although the appellant committed the act… charged against the appellant, a special verdict of act proven but not criminally responsible should have been entered in respect of the appellant, the court may quash the conviction and sentence passed at the trial and order that the appellant be detained in strict custody in such place and in such manner as the court thinks fit until released by due process of law or may make such other order… as the court considers appropriate.
The Crown accepts that it would be open for the Court to find that a miscarriage of justice is made out on the evidence now available and the diagnosis of schizophrenia now made in respect of the applicant, which was not available at the time of trial. The Crown accepts that with the additional opinions of Dr Eagle, Dr Rae and Dr Nielssen, the whole of the evidence tends to a conclusion that the applicant was suffering a "mental health impairment", as defined, at the time of the killing. The Crown accepted that it would be appropriate in this case for the Court to find, on the balance of probabilities, that the applicant is not criminally responsible by reason of mental health impairment because the additional evidence is all "one way". Therefore, the Crown submitted, it would be open to this Court to find the applicant has satisfied the onus of establishing that he was mentally impaired at the time that he killed Ms Wardle, the defence under s 28 of the Act is otherwise made out, and in those circumstances it would be open to the Court to exercise its power under s 7(4) of the Criminal Appeal Act 1912 to make a determination on the current evidence and enter a special verdict of act proven but not criminally responsible by reason of mental health impairment.
Section 7(4) confers a power on this Court to consider whether an appellant had a mental health impairment at the time of the act charged. The sole condition of the exercise of that power is that it appears to this Court that the appellant had a mental health impairment at the time he committed the act charged. The Court's power is to examine the evidence and act upon the Court's view of the evidence: Payne JA in Carter v R [2019] NSWCCA 11; Masters v R [2022] NSWCCA 228.
Having considered the evidence in the trial, and the fresh evidence in the form of the unchallenged, unanimous, reasoned opinions of Drs Rae, Nielssen and Eagle, the Court is satisfied on the balance of probabilities that the applicant had a "mental health impairment", as defined, namely schizophrenia, at the time he carried out the act of killing Ms Wardle, which mental impairment had the effect that although he knew the nature and quality of his acts in causing the death of Ms Wardle, he did not know the act was wrong, because of his psychotic delusion at the time.
Being satisfied that the applicant had that mental health impairment at the time he committed the act constituting the offence and at the time of his trial, and that, therefore, a special verdict of act proven but not criminally responsible should have been entered at his trial, this Court should uphold grounds 1 and 2, allow the appeal, quash the applicant's conviction and sentence, and substitute a special verdict of act proven but not criminally responsible.
In the event that the Court were minded to uphold grounds 1 and 2, the Crown sought to tender in this Court the Victim Impact Statements of Ms Wardle's mother and father. Senior counsel for the Crown read the Victim Impact Statements of Tania Simshauser, Emerald Wardle's mother, and Matthew Wardle, Emerald Wardle's father, both of whom were present in Court. Bell CJ, presiding, expressed the Court's great sympathy to Emerald Wardle's family.
The Court acknowledges that the loss of Emerald Wardle has caused enormous pain to her family from which they will never recover.
[3]
Orders
The Court makes the following orders.
1. Grant leave to appeal against conviction.
2. Allow the appeal against conviction.
3. Quash the conviction for murder and the sentence passed.
4. On the charge that the applicant did on 20 June 2020 murder Emerald Wardle, the Court returns a special verdict of act proven but not criminally responsible.
5. Pursuant to s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), order that Jordan Brodie Miller be detained in a correctional facility, or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until he is released by due process of law.
6. Pursuant to s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), refer Jordan Brodie Miller to the Mental Health Review Tribunal.
7. Direct the Registrar to notify the Minister for Health, as soon as practicable, of the making of these orders by this Court and the terms of this judgment.
8. Direct the Registrar to notify the Mental Health Review Tribunal, as soon as practicable, of the terms of these orders and to provide to the Tribunal the following documentation:
1. A copy of the judgment of this Court and its orders
2. A transcript of the hearing of these proceedings
3. The transcript of the trial
4. Copies of the exhibits from the trial including the reports of Dr Nielssen and Professor Greenberg
5. A copy of the expert reports tendered in these proceedings by Dr Rae, Dr Nielssen and Dr Eagle
6. A copy of the Victim Impact Statements read during these proceedings.
1. Direct the Registrar to notify Justice Health and Forensic Mental Health Network, as soon as practicable, of the orders of the Court and verdict of the Court in this matter and to provide to Justice Health copies of the following documents:
1. A copy of the reasons of this Court for its verdict and orders
2. Copies of the reports of Dr Nielssen, Professor Greenberg, Dr Rae and Dr Eagle.
[4]
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Decision last updated: 12 April 2024