HER HONOUR: In the fourth week of the trial of the accused, Simon Fleming, the Crown conceded that count 1 of the indictment of 1 and 3 May 2023 was incapable of proof, and the jury empanelled to hear the trial was directed to return a verdict of not guilty with respect to the offence of engaging in a terrorist act, contrary to s 101.1(1) of the Commonwealth Criminal Code Act 1995. Following the entry of the verdict, the jury was discharged from further service with respect to counts 2 to 12 on the indictment.
The only offence contrary to a federal statute having been determined, State provisions are applicable to the balance of the charges, and the parties agreed that it was appropriate for the matter to proceed pursuant to s 31 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the MHCIFP Act") rather than continue with the part-heard trial. It was accepted that the evidence established a defence of mental health impairment, and the Court was asked to proceed without a jury, pursuant to s 31.
Section 31 provides:
31 Special verdict where defendant and prosecutor agree on impairment
The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if -
(a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and
(b) the defendant is represented by an Australian legal practitioner, and
(c) the court, after considering that evidence, is satisfied that the defence is so established.
On the basis of the evidence of Dr Adam Martin, supported by other, lay, evidence in the Crown case including that of Neil Hay and Ex AE, each of the sub-sections of s 31 was satisfied, and that was clearly an appropriate course for the Court to take. Whilst the jury, constituting the court, could have been invited to return the special verdict, that would have entailed some time spent in dealing with evidentiary issues consequential to orders made by the court on 22 May 2023. The more efficient course was for the Court to discharge the jury, and thereafter enter the special verdicts.
Although there is some tension between s 31 of the MHCIFP Act and s 133 of the Criminal Procedure Act 1986 (NSW) the general view is that, although the court is not "trying" a criminal case, there remains a common law requirement that a court provide reasons for the decisions it makes, an approach which promotes transparency in judicial decision making, and facilitates open justice. For that reason, I propose to give a judgment in the usual course. This judgment will include, albeit briefly, a statement of the relevant law, and of the evidence from which the facts are found.
[2]
The Law
The terms of s 31 are set out above. The requirements of s 31(a) and s 31(b) are met, the parties having advised the Court of their agreement as to the availability of the special verdict, and the accused being represented by counsel and a solicitor.
The special verdict is said to be available because the accused has a mental health impairment. That term is defined by s 4 of the Act, relevantly as follows:
4 Mental health impairment
(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) […]
(b) an affective disorder, including clinical depression and bipolar disorder,
(c) a psychotic disorder,
(d) […]
(3) […].
The "special verdict" to which s 31 refers is found in the combined operation of ss 28 and 30 of the MHCIFP Act. Section 28 is in these terms:
28 Defence of mental health impairment or cognitive impairment
(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.
(4) In this Part, act includes -
(a) an omission, and
(b) a series of acts or omissions.
Section 30 provides for the consequences of a conclusion pursuant to s 28(1), as follows:
30 Effect of finding of act proven but not criminally responsible because of mental health impairment or cognitive impairment
A jury must return a special verdict of act proven but not criminally responsible if the jury is satisfied that the defence of mental health impairment or cognitive impairment has been established.
Before the Court can turn to the defence the Crown must prove the commission of the physical acts, or actus reus, of each of the charges counts 2 to 12. Annexed to these reasons is a short statement of the physical elements of each offence that must be proved to the criminal standard. If the Crown proves those elements, the defence falls for consideration.
If the Court concludes on the balance of probabilities that, on the evidence placed before it pursuant to s 31, the accused has a mental health impairment as defined by s 4 such that he did not know the nature and quality of his act, or, that the act was wrong (being unable to reason that it was with a moderate degree of sense and composure), the special verdict must be returned.
Section 31 allows the Court to consider the availability of the defence and the special verdict, without need for a trial to be held, on the basis of the evidence tendered.
[3]
The Evidence
The accused has never disputed that he carried out the physical acts reflected by counts 2 - 12, and those aspects of the charged conduct can be readily established by Ex B, compilation footage, and Ex E, together with the evidence of Mr Hay and Detective Senior Constable Michael Adams. The facts established by the evidence are set out in brief in R v Fleming [2023] NSWSC 560 and are not repeated here.
As to the defence, the Court heard evidence from Dr Adam Martin in the Crown case at trial, and received a report from Dr Antonio Simonelli during the course of voir dire proceedings. Dr Martin, a well-respected forensic psychiatrist, assessed the accused at the request of the Crown, interviewing him via an audio visual link on 31 March 2023 for about 90 minutes. Dr Martin had been comprehensively briefed with a volume of relevant material, including Mr Fleming's medical history. That history shows that the accused has a long-standing mental health impairment, for which he has received treatment since about 2018. Dr Martin concluded that the accused suffers from schizophrenia, or a schizo-affective disorder and he was suffering from that mental health impairment on 28 November 2021 such that he did not know that his actions on that day were wrong in a moral sense.
Dr Simonelli, also an experienced forensic psychiatrist, was also of the opinion that the accused was suffering from a mental health impairment such that the defence under the Act was available to him.
The doctors' conclusions are supported by the impression formed by the civilian witness who had most contact with the accused on 28 November 2021, Mr Neil Hay. Mr Hay, who spent about half an hour with Mr Fleming on this day, was of the view that he was very clearly unbalanced. That was also the Court's inexpert assessment on viewing the footage of an interview recorded between police and the accused later on 28 November 2021 (Ex AE). Finally, the testimony of the accused's mother, Carolyn Fleming, who saw her son on 28 November 2021 as she did most days, was eloquent of the sad descent into withdrawal and illness experienced by Mr Fleming in recent years, and of his distressed state that day.
[4]
Conclusion and Verdict
The Court is satisfied beyond reasonable doubt that the accused committed the physical acts the Crown is required to establish to go to proof of each of the offences on the indictment. Having regard to the evidence of mental health impairment, there is no doubt that the accused was suffering from schizophrenia or a schizo-affective disorder on 28 November 2021, and did not on the balance of probabilities know the nature and quality of his act or, more probably, he did not know that his act was wrong, as contemplated by the Act. The Court is satisfied to the same standard that the defence is made out, and the special verdict should be returned. Whilst a mentally ill individual might act in a way that, prima facie, seems criminal, as occurred here, it has never been the role or intention of the criminal justice system to pursue a mentally impaired accused for such conduct. As the Act contemplates, Mr Fleming is not criminally responsible for his conduct on 28 November 2021; it was the product of acute illness.
With respect to each of counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the indictment of 1 and 3 May 2023 the Court returns the special verdict pursuant to section 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act that the act alleged in each of those counts is proven, but the accused is not criminally responsible for them.
[5]
ANNEXURE TO JUDGMENT
THE PHYSICAL ELEMENTS OF COUNTS 2 - 12, EXCLUDING ANY MENTAL ELEMENT OR THE QUESTION OF VOLUNTARINESS
Count 2
The accused carried a firearm*, being a bolt action rifle;
in a manner likely to injure, or endanger the safety of himself or any other person;
A firearm is defined by law as an object that is or was capable of propelling a projectile by means of an explosive. There is no issue that the bolt action Mauser rifle is a firearm, as it could discharge a cartridge under explosive propulsion
Count 3
The accused left an article (the silver case) in a place (the intersection of Windang Road and Acacia Street);
Count 4
The accused fired a firearm*, being a bolt action rifle;
in a manner likely to injure, or endanger the safety of himself or any other person (Kareem Kareem);
A firearm is defined by law as an object that is or was capable of propelling a projectile by means of an explosive. There is no issue that the bolt action Mauser rifle is a firearm, as it could discharge a cartridge under explosive propulsion
Count 5
The accused fired a firearm*, being a bolt action rifle;
in a manner likely to injure, or endanger the safety of himself or any other person;
A firearm is defined by law as an object that is or was capable of propelling a projectile by means of an explosive. There is no issue that the bolt action Mauser rifle is a firearm, as it could discharge a cartridge under explosive propulsion,
Count 6
The accused detained* Keith Woods;
Knowing Keith Woods did not consent to being detained;
To detain a person means to prevent that person from leaving should he wish to do so
Count 7
The accused detained* Neill Hay;
Knowing Neill Hay did not consent to being detained;
To detain a person means to prevent that person from leaving should he wish to do so
Count 8
The accused had a pistol* in his possession** (SKD Model CS-007 gel ball air pistol)
he did not have a licence allowing him to possess such an item.
Pistol means a firearm that is reasonably capable of being raised and fired by one hand, and which does not exceed any size fixed by law.
** Possession means having custody of a thing, and includes having the thing in any premises occupied by the accused
Count 9
The accused had a pistol* in his possession** (gel ball air pistol)
he did not have a licence allowing him to possess such an item.
Pistol means a firearm (capable of discharging a cartridge under explosive propulsion) that is reasonably capable of being raised and fired by one hand, and which does not exceed any size fixed by law.
** Possession means to have custody of a thing, and includes having the thing in any premises occupied by the accused
Counts 10, 11 and 12
The accused possessed a prohibited firearm* (gel ball air gun);
He did not have a licence allowing him to possess** such an item.
A prohibited firearm is an object that is a firearm (capable of discharging a cartridge under explosive propulsion) that the law deems to be prohibited. A gel ball air gun is prohibited under NSW law.
**Possession means to have custody of a thing, and includes having the thing in any premises occupied by the accused
[6]
Amendments
25 October 2023 - Typographical errors at [16] amended.
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Decision last updated: 25 October 2023
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Fleming
Legislation Cited (4)
Mental Health Cognitive Impairment Forensic Provisions Act 2020(NSW)