R v Munday

A special hearing

1. A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. If appropriate court processes can be modified to facilitate the effective participation by the defendant in the special hearing.
2. The fact that a defendant has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person's representation. Mr Munday is represented by Ms Hall SC and Mr Ward, solicitor.
3. A special hearing must not prejudice the defendant any more than his unfitness already may do. He must have legal representation. He may raise, or have raised on his behalf whatever defences a fit person could raise in a normal trial. He may, or may not, give evidence. The purposes of a special hearing include: 1. To ensure that justice is done, as best it can be in the circumstances, to the defendant and the prosecution, and; 2. To give a defendant an opportunity of being found not guilty and if he requires further treatment that it may be given to him outside the criminal justice system.
4. At a special hearing the defendant is taken to have pleaded not guilty to the charges against him, unlike in a normal trial in which an accused may enter a plea of either guilty or not guilty.
5. I must reach my verdict on what the Act describes as the limited evidence available. The verdicts open to me are: 1. not guilty of the offence charged, 2. a special verdict of act proven but not criminally responsible, 3. that on the limited evidence available, the defendant committed the offence charged, 4. that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged.
6. If I find Mr Munday not guilty of a offence charged as a count then that will be the end of the matter. The Act sets out the procedures that must be followed if other verdicts are returned. I am aware of my duties and responsibilities under the Act and the legal and practical consequences should I return a special verdict of act proven but not criminally responsible,. I am aware of the role of the Mental Health Review Tribunal.
7. When the special hearing commenced I was told by Madam Crown and Ms Hall SC that they both agreed that the proposed evidence established a defence of cognitive impairment. The critical issue however was whether the physical aspects of any of the offences charged could be proved beyond reasonable doubt.

The defence of Cognitive Impairment

1. The Act replaces the foundational mental condition previously described as an "abnormality of mind arising from an underlying condition." This defence of mental illness was first spoken of in M'Naghten's Case, Re (1843) 8 ER 718. It was applied in more modern times in terms as explained in The King v Porter (1933) 55 CLR 182 and Stapleton v The Queen ; (1952) 86 CLR 358; [1952] HCA 56. Section 28(1) incorporates the two limbs of the M'Naghten rules as modified in The King v Porter.
2. The defence of mental health impairment or cognitive impairment is set out in s 28 of the Act. (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.
3. The question of whether a defendant had mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined on the balance of probabilities. Section 28(3) reflects the common law principle, dating back at least to the M'Naghten rules, that, for the purposes of the defence, "it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both": Introducing the new Mental Health and Cognitive Impairment Forensic Provisions Act 2020, Justice Mark Ierace, Judicial Officer's Bulletin, March 2021, Vol 33 Number 2.
4. If I find that Mr Munday committed the act constituting an offence charged as a count or it's alternate the defendant and the prosecutor both agree that the evidence in the proceedings establishes a defence of cognitive impairment: s30. In those circumstances s.31 of the Act allows the court to enter a special verdict of act proven but not criminally responsible at any time in the proceedings.
5. But before I could consider whether on the evidence, I was satisfied that the defence of cognitive impairment was established I still have to consider whether on the limited evidence available, that the physical elements of the count have been proved by the prosecution beyond reasonable doubt. Only then do I consider the defence of cognitive impairment.
6. I do not at that stage consider the question of proof of the mental element of the crime. This is consistent with the law as it stood prior to the commencement of the Act, and the submission of both parties: Hawkins v The Queen (1994) 179 CLR 500 at 511; [1994] HCA 28; R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [30]-[32].
7. This approach was approved in the recent decisions of Justice Wilson in R v Tonga [2021] NSWSC 1064 and by Justice Johnson in R v Siemek [2021] NSWSC 1292. And, these conclusions appear consistent with what is set out in the Act.
8. Section s28(3) notes that, "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." The onus of proof on this issue is on the balance of probabilities: s28(2). Further, assistance comes from the words of s28 (d) where a special verdict is returned of "act proven but not criminally responsible:" my emphasis.
9. There is nothing in the Act itself or the aids to interpretation such as the second reading speeches that indicates the common law position was intended to be changed by the new Act. Certainly there is nothing to indicate that courts would need to revisit the "great difficulties in theory and practice" that had arisen before Hawkins was decided: Hawkins at [8].
10. The potential for a problem arose here as each offence has mental element of "recklessness." If recklessness cannot be proven there is an alternative to the s 203E offence available - s 100 (1) Rural Fires Act 1997. The Act provides that the fact that a court enters a special verdict of 'act proven but not criminally responsible' in respect of the principle offence does not result in a requirement the court also enter a special verdict in respect of an offence available as an alternative to the offence: s 32 the Act.
11. One expert Dr Ashkar offered the opinion that Mr Munday was unable to have acted with a reckless state of mind at the time of the offences because he did not appreciate or foresee the possibility of any fire spreading to vegetation or other land because of his Intellectual Development Disability. Dr Pullman disagreed; concluding "he therefore had some appreciation that vegetation might be damaged in any 'burn off or campfire', although it is highly unlikely that he understood or appreciated the fire could spread 'out of control' to surrounding vegetation or cause harm to property or endanger the lives of others."
12. These opinions, and s 32, do not however persuade me that the new Act requires reconsideration of Hawkins or Minani. To the contrary, as Ms Hall, properly submitted, the cognitive impairment defence operates once the physical act of the defendant is found proven beyond reasonable doubt. Once that fact has been established a verdict is required and the court would not need to consider the alternative Count.
13. Given the issues and the manner in which the special hearing proceeded it is accepted that I could either find Mr Munday not guilty or a special verdict of act proven but not criminally responsible. I will not need to determine questions relating to the mental element of a s 203E count. Accordingly, the way this special hearing has been conducted I could not find Mr Munday was criminally responsible for any crime.

A Special hearing

1. A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. Accordingly I must record all of the principles of law applied, and each of the factual findings relied upon in reaching my verdicts, paying heed to all of the warnings that a jury would be given had it been empanelled.

Onus

1. The prosecution must prove each element of the offence beyond reasonable doubt. Mr Munday has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only return finding an offence has been proved if I have no reasonable doubt the prosecution has proved beyond reasonable doubt each critical element of the offence charged. If the prosecution fail to meet that high onus, if I have doubts about their case, Mr Munday must have the benefit of any reasonable doubt and I must return a verdict of not guilty on that count.

Elements

1. There is no dispute that if an incident occurred, it occurred at Lake Heights within the time period alleged. There is no dispute that each of the fires occurred on land belonging to another. There is no dispute that the fires spread or had the capacity to spread.
2. In a criminal trial or special hearing for a s208 E(1) offence, where a s28 defence is not raised or established, it must be proved that an accused: 1. Intentionally caused a fire, and, 2. That he was reckless as to the spread of the fire to vegetation on any public land or on land belonging to another.
3. Recklessness may be established by: 1. Proof of the accused's intention that the fire spread to vegetation on any public land or on land belonging to another, or, 2. Proof that at the time the act was done he realised that the fire he lit may possibly spread to vegetation on any public land or on land belonging to another yet he went ahead and acted as he did.
4. To prove an attempt it must be established beyond reasonable doubt that that the accused intended to commit the crime alleged and that he actually embarked upon the commission of the crime that he intended to commit.
5. The physical act that is critically in dispute in this special hearing is whether Mr Munday lit or intended to light a fire the subject of a specific count in the indictment.
6. There is a statutory alternative offence in section 100 (1) Rural Fires Act 1997. Section 100 requires proof that "a person who, without lawful authority sets fire or causes fire to be set to the land or property of another person, the Crown or any public authority." Given the way the special hearing developed it will not be necessary to consider that alternative.

Tendency and Coincidence

1. The prosecution served both tendency and coincidence notices: ss 97 & 98 Evidence Act 1995. Both notices refer both to acts done by Mr Munday and his asserted 'state of mind.' Given all the evidence here and my initial need to focus on the physical acts alleged I will not determine tendency and coincidence issues by reference to Mr Munday's asserted 'state of mind.' Neither counsel submitted on this point and it was not the subject of expert opinion.
2. The tendency notice asserts that I can conclude from all the evidence that Mr Munday had a tendency to act in particular way - "to light fires and leave them unattended on land/or property during the hours of darkness." And, that tendency was manifest when each of the counts occurred. A large number of common features were relied on: see below at [83].
3. In their coincidence notice they assert that in reaching any conclusion Mr Munday did a particular act (or "had a particular state of mind) that evidence about 2 or more events set out as counts is admissible and can be used to make those determinations because; having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally.
4. Where there is no direct evidence on a specific occasion, I can have regard to all the other evidence in the trial to reason by way of inference or deduction. If there are other reasonable explanations available these must be considered. But, even if I accept one or more of the allegations it would be completely wrong to reason that just because Mr Munday has done some things he was more likely to have committed the offences charged or that he is therefore generally a person of bad character and for that reason he must have done what is alleged.
5. The Prosecution also say that I will be satisfied Mr Munday had alleged tendency and acted on it and/or is improbable that the events occurred coincidentally; making it more likely that he committed each of the offences charged in the indictment. However if nothing happened there can be no evidence capable of showing the state of mind alleged or any alleged tendency. The suggestion is distraction, an allegation, nothing more. I don't work backwards and presume a tendency.
6. I must then, with those cautions in mind, go to the evidence. I must examine it carefully and scrutinise it carefully. Before I can use the evidence of other proved counts in the way the Prosecution asks I must make two findings: 1. That one or more of those acts actually occurred. In making that finding I do not consider each act in isolation but consider all the evidence and ask whether I find a particular act relied upon actually took place. 2. If I do find one or more of those acts alleged as a count occurred, then I must go on to consider whether, from the act or acts I have found occurred I can then infer Mr Munday had the tendency or did the acts alleged or that they were not a coincidence.
7. If I cannot draw that inference, then I must put aside any suggestion that Mr Munday had the tendency, nor could I utilise coincidence reasoning. In relation to coincidence reasoning I must caution myself that genuine coincidences do occur. For example; here the events occurred in Hilltop Avenue, Lake Heights and a witness gave evidence from Hilltop Crescent, Mollymook. I must be alert to the danger that I may downplay the role of chance and be over ready to interpret coincidence as cause and effect.
8. That an inference could be drawn is not the test - if there are other alternatives inferences reasonably available, inferences that are consistent with Mr Munday being innocent - then the prosecution has not proved its point. The evidence must not be used in any other way.

Circumstantial evidence

1. There are well settled principles relating to proof of a circumstantial case: 1. When the case against an accused person rests substantially upon circumstantial evidence a verdict of guilty cannot be returned unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.' 2. To enable a trier of fact to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw. 3. For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a trier of fact from finding the accused guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence". 4. In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed, in deciding whether there is an inference consistent with innocence reasonably open on the evidence. 5. The evidence is not to be looked at in a piecemeal fashion: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47] - [50].

Assessing the Evidence

1. The evidence must be considered as a whole. Some of the evidence is direct - some circumstantial as it involves drawing inferences from proved facts. I may not, as a matter of law, find the accused did an act the subject of a count unless I am satisfied beyond reasonable doubt that there is no reasonable other explanation of the evidence.
2. In evaluating the evidence at trial, I can use my life experiences, training, and experience as a lawyer and judge. As part of my fact finding process, I can make a value judgments.
3. I assess the evidence "as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events." Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.

CCTV and Identification

1. A number of witnesses describe a man associated with the fires and the rubbish moved onto the vacant block before the fires. I also have some photographs and CCTV footage in evidence.
2. Judges know from the bitter experience of wrongful convictions that identification from apparent similarities and from CCTV can be unreliable. As a consequence I must approach any identification evidence whether by a witness or from my own observations of the CCTV evidence with special caution. That special caution is necessary because of the possibility that I may be mistaken or that the purported identification evidence may turn out to be unreliable. I am well aware of the a variety of reasons why that is so.
3. I am also aware that CCTV recordings can be notoriously difficult to interpret. That difficulty may arises because of:

• The available lighting and the capacity of the devices to record at night.
• The quality of the device used including the number of pixels and frame rate - modern videos capture a number of still images that are put together at a rate quicker than the human eye can detect - causing it to look like a constant flow but there are sometimes jumps and gaps.
• Images may not be highly resolved, remnants of earlier images can be left behind there can be poor resolution i.e. lack of sharpness and deficiencies because the range black to white that in turn doesn't allow for distinguishing of details.
• Camera angles can at times lead to distortions in what is recorded.

1. Accordingly, misperceptions and misidentification or misconstruing or misreading of what is recorded can arise. Further, even for judges, sometimes things suggested by witnesses or counsel, may, on close examination of the images not be as apparent as originally suggested. This is because the act of suggesting itself can influence perception.
2. I must decide what's depicted on the CCTV - but I need to be very cautious when doing so - as such images can play tricks. I must be aware of the limitations in CCTV evidence.
3. I can also but only with appropriate caution, take into account my own observations of the Mr Munday (who I saw in court on an earlier occasion and in the AVL link) to the extent that that may assist the resolution of this factual issue: Smith v The Queen [2001] HCA 50; 206 CLR 650 at 654-655 [9]-[11]; Slater v R [2015] NSWCCA 310 at [30]. Identification from a prior 'in person' encounter requires special caution be taken, even more so where video images are relied on: s116(1) Evidence Act 1995. I have to consider the possibility my identification may be mistaken and based on unreliable premises.

The evidence

1. It is not in dispute that Mr Munday lived in Hilltop Avenue and his home was a few blocks from the vacant lot where all the fires the subject of counts were lit. It is not in dispute that Mr Munday bears a superficial resemblance to the person described by witnesses or pictured in the CCTV footage.
2. When spoken to on arrest Mr Munday denied lighting, or in his words "lightening," any fires. In an interview with a psychiatrist, tendered in evidence, Mr Munday denied lighting any fires. He said his now deceased brother used to do so. That hearsay evidence must be taken into account: s 60 Evidence Act 1995. Evidence at the hearing showed his brother died on 17 December 2011.
3. There was no significant challenge to the evidence from any witness. Three neighbours from adjoining properties gave evidence. I also heard from the local Fire and Rescue NSW Superintendent and two police officers.
4. One, police officer, Constable Takos, saw Mr Munday light a fire on a vacant block behind his home in 2014. The other, Detective Senior Constable Parsons, the officer in charge, confronted Mr Munday as he moved furniture onto the vacant block and arrested him. He also saw gumboots out the front of Mr Munday's home and seized and photographed a jacket and beanie owned by him: Exhibit G (2-4). Similar clothing was identified in still images taken from surveillance videos on 13 and 15 August 2020: Exhibit G (5-7)
5. The Fire and Rescue NSW Superintendent told me of the many occasions he and his colleagues had visited the block for fire related incidents. They occurred in all types of weather. He remembered a specific incident in January 2020 when a nearby house had to be protected from ember attack. Most fires were located in a well-worn patch on the vacant block.
6. A log of incidents for attendances at fires in Hilltop Avenue was tendered as an exhibit: Exhibit D. They coincide with the dates in Counts 2, 3, 4, 5, 6, 7, 9, 10, 11, 18, 20, 22 and 27.
7. The civilian witnesses told of me of their experience of fires on the vacant block at 11 Hilltop Avenue during the relevant period. And, how photographs had been taken and CCTV and other video footage obtained.
8. The fires were all lit at night, in the early hours of the morning. The size of the initial fire would depend on what was being burnt: often a couch or couches and/or other furniture such as chairs, cupboards and mattresses or foam cushions were used as fuel.
9. The fires were a concern as they were left unattended and would spread to nearby grass. They were sometimes lit on dry and windy nights. On occasions the resulting grass fires came close to or burnt fences or otherwise threatened property. Most were lit in one favoured spot but they did occur on other places on the vacant lot. One fire in particular in January 2020 was described as "very frightening."
10. One neighbour saw the person they believed had lit the fires. He was seen before and after the fires were lit. He was described as being "older, wearing jeans and a cowboy style hat." He would move furniture to his "favourite" spot. A "similar" person lived in Hilltop Avenue.
11. A motion operated CCTV camera was set up and recorded the images that found Counts 1 to 6 and 29. Each show the point in times the fire takes hold: see table MFI 2. All but Count 1 correspond to NSW Fire and Rescue records: Exhibit D.
12. Another resident told me how he would see rubbish such as old furniture at the front of Mr Munday's home in Hilltop Avenue.
13. One neighbour told me she knew Mr Munday well and that she would see garbage and furniture on his ute. She said he thought he was a "cowboy" as he would wear jeans and a cowboy hat, although she never saw him wear a beanie. She had CCTV security cameras at the front and side of her home; the side that adjoined the vacant block
14. She said there had been "countless" fires on the vacant block - mainly couches were used as fuel. On occasions Mr Munday would speak to her and her children about something he called "country night." For example: "country night Thursday 11 EST." His doing so was always associated with nights there was a fire.
15. Counts 7 to 23 are captured by CCTV from the house in Hilltop Avenue adjacent to the vacant block and a few houses down from Mr Munday's home. For Count 17 (the attempt) the CCTV shows a person running away - left to right - and shortly after the glow of a fire but that glow soon fades away. A comparison with other video footage showing the glow of fires from the area leads me inevitably to a conclusion that after it was lit the Count 17 fire did not take to the pile of furniture or spread.
16. The video images for each event, making up Counts 7 to 23, show a person wearing a beanie and knee high boots (similar to gumboots) moving furniture (often lounges) from the right (the direction of Mr Munday's home) to the left (the vacant block). The person's movements are deliberate and repeat the same pattern. Wherever he is getting the material from it cannot be far from the block as he has to drag larger items and is able to return to the block with more material a number of times in a relatively short period of time.
17. The CCTV then picks up the glow of a fire staring and (with one exception- Count 17) continuing. Coinciding with the first illumination in many cases the person can be seen moving rapidly away from the fire towards the left (the direction of Mr Munday's home).
18. The neighbour who owned the CCTV confronted Mr Munday after the January 2020 fire. He denied lighting the fire but for a period till May no fires were lit on the vacant block.
19. Most of the evidence for counts 24 to 28 was captured on hidden cameras equipped with motion sensors, set up by police and focussed on the spot where the fires were usually lit. They provide a relatively clear view of the person (who is almost certainly male) piling the furniture and lighting or attempting to light (Count 28) the pile of material. The images are not good enough to allow a positive identification of a person but they enable me to say the person is not dissimilar to Mr Munday.
20. The video images capture the person arranging the pile and leaving and returning with more material. Those images that capture the lighting of the fire show that the initial match or flame is applied to whatever is at the top of the pile. They then show the person leaving the area quickly, in the direction of Mr Munday's home.
21. The recording for 24 August 2020 at 1:31AM, the attempt, shows the person lighting a box on top of the pile but after a few splutters it goes out. The person then returns to the unburnt pile at 4:23AM and retrieves the box from the unburnt pile.
22. Detective Constable Parsons had the block under personal surveillance on the 25 August 2020. He arrested Mr Munday soon after the cameras record a fire being lit. He noticed his clothing, beanie and gum boots: exhibit G. He arrested Mr Munday at his home. Mr Munday told him; "I have lightened no fires, honestly, honest." He took a video of the piled furniture on the vacant block where it is apparent the fire had not taken hold.
23. To support their tendency argument the prosecution (over objection from Ms Hall) called Constable Takos. On 8 January 2014 he was at the rear of Mr Munday's house. He saw him put chair on a pile of material including a lounge on a then vacant block accessible from a gate on Mr Munday's property. He later saw him light the top of that pile of material. A fire took hold. He later spoke to Mr Munday.

Submissions

1. Ms Hughes, Crown Prosecutor, submitted the evidence established that a fire was lit on the vacant block at Hilltop Avenue on 27 occasions. And, that attempts were made to light fires on two other occasions. All coincided with the dates alleged in the Indictment. Each fire was initially lit on a pile of furniture previously taken onto the block and placed in the same location on the block.
2. She said such were the similarities between each incident that I could comfortably conclude that the same person was responsible for each fire. She said the evidence established the same person was involved in each incident and that it was no coincidence. To the contrary she said - Mr Munday's tendency was established by the cross-admissible evidence called in relation to each count and by what was observed by Constable Takos the only person who saw him directly light a fire: s161A Criminal Procedure Act 1986.
3. Similarly, she said that when I reviewed the CCTV footage from each incident and all the other evidence there was only one conclusion available - the same person lit or attempted to light each fire.
4. She said those facts having been established I could, on the limited evidence available, conclude beyond reasonable doubt that it was Mr Munday who attempted to light or lit each fire. Accordingly, she said that the only verdicts now available, given the unanimous psychiatric opinions, was that on each count a special verdict of act proven but not criminally responsible must be returned.
5. Ms Hall agreed that the s 28 defence was available but she urged careful consideration of the evidence relating to each count. And, she urged particular care be taken with my assessment of evidence based on tendency or coincidence reasoning; noting as she had in objecting to its tender, that Constable Takos' evidence should not be substituted for proof of any count; nor was that evidence to be used as general disparagement of Mr Munday.

The physical acts

1. I have reviewed both witnesses and the CCTV evidence. All that evidence established only one person was responsible for the fires and that that person had ready access to the block so as to bring furniture on to it. The evidence for each of the 29 counts as the common features relied on in the prosecution tendency notice: 1. The fires occurred on a vacant block located at 11 Hilltop Avenue, Lake Heights. 2. Rubbish and scrub fires have occurred at that block over a number of years. 3. The fires occur in the early hours of the morning. 4. A person is depicted in CCTV footage dragging furniture, rubbish and other items to the vacant block, coming from the direction in which Mr Munday resides. 5. The same person is depicted leaving the vacant block. Returning in the direction in which Mr Munday resides. 6. The person depicted in the footage is wearing similar clothing on each occasion, namely gumboots, a broad brimmed hat or beanie.
2. In addition the person depicted in the CCTV bears a resemblance to Mr Munday. He is wearing similar clothes to those often worn by Mr Munday. Whoever lit the fire must live close to the vacant lot. There is no evidence anyone else in the area bears any resemblance to Mr Munday and it could not be his brother who is now deceased.
3. Mr Munday was seen lighting a fire in similar circumstances in 2014. Those circumstances included the type of fuel used - a lounge, the fact that other item were placed on top of the pile and then lit at the top of the pile. That evidence and the force of all the evidence establishes Mr Munday did have the tendency to act as alleged and that it was no coincidence he was involved with each the fires.
4. Having given myself all necessary warnings and having have considered the possibility of inferences that might lead to another conclusion I am convinced on the limited evidence available, to the beyond reasonable doubt standard, that that it was Mr Munday who did each of the physical acts that establish each of the 29 counts.
5. Although it is not strictly necessary I note that the evidence before me was sufficient to prove beyond reasonable doubt that despite his cognitive impairment Mr Munday was capable of appreciating the possibility that once lit a fire could spread beyond its immediate confines although he had no capacity to discern that property or lives might be endangered..

A defence of cognitive impairment

1. Having heard from both counsel and considered the unanimous opinions of Dr Pullman and Dr Ashkar there is ample evidence before me to conclude that on balance Mr Munday, because of his cognitive impairment, is not criminally responsible for any of the offence whose physical acts I have found proved on the limited evidence before me.
2. At the time he did the each act charged as account in the indictment his cognitive impairment meant that he; 1. Did not know the nature and quality of his act; and 2. Did not know that the act was wrong. He could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.

Orders

1. 22 October 2021: Adjourn the proceedings without entering verdicts until 22 November 2021 to enable the defendant to prepare serve and file evidence to support a submission that the safety of the defendant or any member of the public will not be seriously endangered by his conditional release: For reasons see R v Munday (No 3) [2021] NSWDC 269.
2. 19 November 2021: On each Count in the indictment filed - 1 to 29, I return a special verdict of "act proven but not criminally responsible."

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2021