R v Papanicolaou

Supreme Court of NSW|2021-12-15|Before: Wright J

Judgment

The accused has been charged on indictment with one count that on 19 February 2019, in Sydney in the State of New South Wales, she did murder Marjorie Jane Welsh. The accused was arraigned in the Supreme Court on 7 August 2020 and pleaded not guilty to murder but guilty to manslaughter on the basis of substantial impairment under s 23A of the Crimes Act 1900 (NSW). This plea was not accepted by the Crown in satisfaction of the indictment. The jury for the trial of the accused is due to be empanelled on 24 January 2022.
Both the accused and the prosecution have obtained expert evidence from psychiatrists, Dr Kerri Eagle and Dr Adam Martin respectively, which is proposed to be adduced concerning the issue of the substantial impairment of the accused for the purposes of s 23A of the Crimes Act.
On 27 March 2021, s 23A of the Crimes Act was amended by items [6]-[9] of cl 3.7 of Sch 3 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
The parties have sought a ruling under s 192A(b) of the Evidence Act 1995 (NSW) in relation to the question of whether s 23A of the Crimes Act applies in its form before or after the amendments made on 27 March 2021 in relation to, and for the purposes of, the expert evidence as to substantial impairment proposed to be adduced.
For the reasons which follow, I am of the view that s 23A of the Crimes Act in its form prior to the amendments on 27 March 2021 continues to apply for the purposes of these proceedings including in relation to the expert psychiatric evidence to be adduced.

Prosecution case

The substance of the most relevant aspects of the prosecution case is set out in the paragraphs which follow.
The accused was born in Indonesia in 1983 and moved to Australia in about 2007, after she married her husband, an Australian citizen. In late 2018 and early 2019, the accused worked for a number of clients, including the deceased's daughter and the deceased, as a self-employed domestic cleaner. The accused was a regular gambler, most often playing poker machines at an RSL club. She regularly requested that money be transferred to her by her husband and by other persons to fund her gambling.
The accused cleaned the deceased's house generally once per week, as arranged by the deceased's daughter, usually on a Friday morning. When the accused came to clean the deceased's house she would park her car in the driveway, go to the front door and wait to be let in by the deceased. The accused and the deceased had a close relationship and the deceased disclosed to the accused that she (the deceased) had sold her previous property for $8 million, which shocked the accused.
On Wednesday, 2 January 2019, shortly after 9:00 am, the accused went to the RSL club and played the poker machines for about 50 minutes, losing $430 during that period. After certain withdrawals from her bank account, the accused was left with $11 in the account. The accused left the club and drove to the park behind the deceased's house.
The accused gained access to the deceased's backyard over the fence at the corner of the property. The deceased had been in her yard but, by the time she entered her house through the backdoor, the accused was inside and this is where the deceased first saw the accused that day.
The accused immediately began to attack the deceased with the deceased's walking sticks, beating her and breaking two of the sticks in so doing. The accused also hit the deceased in the head, face, chest and arms with decorative, ceramic plates belonging to the deceased. At some stage, the accused removed a kitchen knife from the cutlery drawer and stabbed the deceased in the chest and abdomen about six times.
The deceased was badly injured but crawled towards the backdoor where she activated an emergency pendant around her neck at 10:39 am. The accused switched off the emergency call unit and removed the cordless telephone with which it was connected. She took the cordless telephone and the knife and left. The deceased reached the backdoor, called for help and reactivated the pendant. The accused jumped over the back fence and ran back to her car. The deceased identified her attacker as "the cleaner" to the police and ambulance officers who attended soon after.
The accused drove home, discarding the cordless telephone and the knife in a bin in Canterbury and the shirt she was wearing near her home. She spoke to her husband but was upset and left soon after. The accused was located and arrested. She informed police where she had discarded the knife and clothing, which were located along with the telephone.
The accused was interviewed by police and she gave a relatively detailed account of what she said occurred, including that the deceased accused her of stealing $50 and that it was the deceased who attacked her with a walking stick and had the knife in her hand. It was also said that the ceramic plates had fallen off the table during the struggle.
The deceased died on 19 February 2019 due to complications of blunt force head injury and stab wounds to the chest and abdomen.

Defence response

The defence response, provided in accordance with s 143 of the Criminal Procedure Act 1986 (NSW), expressly stated that the accused intended to plead not guilty to murder but guilty to manslaughter on the basis of substantial impairment pursuant to s 23A of the Crimes Act. A notice under s 151 of the Criminal Procedure Act indicated that the accused intended to rely on the evidence of Dr Kerri Eagle, forensic psychiatrist, in two reports dated 2 April 2020 and 30 June 2020. In her earlier report, Dr Eagle relevantly opined: "The symptoms of her underlying condition did not appear to significantly reduce her capacity to control herself in a general sense. On the basis of the information available (and subject to findings of fact), [the accused] appeared able to control her behaviour sufficiently to drive, dispose of her clothes and throw out a knife. In my view the symptoms appear to have been potentially severe enough to impair her capacity to interpret or understand events and judge whether her actions were morally or legally wrong."
Dr Eagle in her earlier report described the accused's underlying condition as a "major depressive disorder, major depressive episode moderate to severe".

Prior to 27 March 2021

Prior to 27 March 2021, s 23A of the Crimes Act was in the following form: "23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if - (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death. (7) If, on the trial of a person for murder, the person contends - (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section - underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind."
It can be noted that the contention referred to in s 23A(7)(a) in the quotation above is a contention that the person was mentally ill at the time when the person did the act in question and that the jury should return a special verdict that the accused person was not guilty by reason of mental illness, as provided in s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), which was in force prior to 27 March 2021. Section 38 of that Act provided: "38 Special verdict (1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness. (2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person."

27 March 2021 amendments

On 27 March 2021, the Crimes Act was relevantly amended as set out below by cl 3.7 of Sch 3 (since repealed) to the Mental Health and Cognitive Impairment Forensic Provisions Act. 1. A new s 4C was inserted by item [1] as follows: "4C 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) 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." 1. Section 23A was amended as follows by items [6]-[9]: "[6] Section 23A, heading Omit 'by abnormality of mind'. Insert instead 'because of mental health impairment or cognitive impairment'. [7] Section 23A(1)(a) Omit 'an abnormality of mind arising from an underlying condition'. Insert instead 'a mental health impairment or a cognitive impairment'. [8] Section 23A(7)(a) Omit the paragraph. Insert instead - (a) that the person is entitled to be acquitted on the ground that the person was not criminally responsible because of mental health impairment or cognitive impairment, or [9] Section 23A(8) Omit the subsection. Insert instead - (8) For the purposes of this section, a person has a cognitive impairment if - (a) the person has an ongoing impairment in adaptive functioning, and (b) the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and (c) the impairments result from damage to or dysfunction, developmental delay or deterioration of the person's brain or mind that may arise from a condition set out in subsection (2) or for other reasons. (9) A cognitive impairment may arise from any of the following conditions but may also arise for other reasons - (a) intellectual disability, (b) borderline intellectual functioning, (c) dementia, (d) an acquired brain injury, (e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder, (f) autism spectrum disorder."
Moreover, the previous defence of mental illness found in s 38 of the Mental Health (Forensic Provisions) Act was replaced with a defence of mental health impairment or cognitive impairment found in ss 28 and 30 the Mental Health and Cognitive Impairment Forensic Provisions Act as follows: "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. … 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."
The transitional provisions found in Sch 2 to the Mental Health and Cognitive Impairment Forensic Provisions Act, relevantly in cll 5 and 6, related to the defence of mental illness formerly found in s 38 of the Mental Health (Forensic Provisions) Act (referred to as "the former Act") and provided as follows: "5 Application of new Act to existing proceedings where defence of not guilty by reason of mental illness has been raised (1) This clause applies to a defendant in proceedings for offences commenced before the commencement of Part 3 of this Act where a question has been raised before that commencement as to whether the defendant was, at the time of commission of the offence, mentally ill as referred to in section 38 of the former Act. (2) The former Act continues to apply to the defendant until a determination is made as to whether a special verdict should be entered or the defence is no longer being raised. (3) In circumstances where the 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. 6 Former special verdicts A special verdict that a person was not guilty of an offence by reason of mental illness is taken, for all purposes, to be a special verdict against the person of act proven but not criminally responsible for the offence."
There are no transitional provisions in the Mental Health and Cognitive Impairment Forensic Provisions Act relating to the amendments to s 23A of the Crimes Act. Nor are there any transitional provisions in Sch 11 (headed "Savings, transitional and other provisions") of the Crimes Act in relation to the recent amendments to s 23A.

After 27 March 2021

The result of the amendments referred to above is that after 27 March 2021 the Crimes Act has contained the explanation of "mental health impairment" set out in s 4C (which has been quoted in full above), and s 23A has been in the following terms: "23A Substantial impairment because of mental health impairment or cognitive impairment (1) A person who would otherwise be guilty of murder is not to be convicted of murder if - (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by a mental health impairment or a cognitive impairment, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death. (7) If, on the trial of a person for murder, the person contends - (a) that the person is entitled to be acquitted on the ground that the person was not criminally responsible because of mental health impairment or cognitive impairment, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) For the purposes of this section, a person has a cognitive impairment if - (a) the person has an ongoing impairment in adaptive functioning, and (b) the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and (c) the impairments result from damage to or dysfunction, developmental delay or deterioration of the person's brain or mind that may arise from a condition set out in subsection (9) or for other reasons. (9) A cognitive impairment may arise from any of the following conditions but may also arise for other reasons - (a) intellectual disability, (b) borderline intellectual functioning, (c) dementia, (d) an acquired brain injury, (e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder, (f) autism spectrum disorder."

The Interpretation Act

Section 30 of the Interpretation Act 1987 (NSW) relates to the effect of amendments to Acts and provides as follows: "30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not - (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed. (2) Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect - (a) the proof of any past act or thing, or (b) any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or (c) any amendment or validation made by the Act or statutory rule, or (d) the operation of any savings or transitional provision contained in the Act or statutory rule. (3) This section applies to the amendment or repeal of an Act or statutory rule in addition to, and without limiting the effect of, any provision of the Act or statutory rule by which the amendment or repeal is effected. …"

Extrinsic material

The Attorney General's second reading speech in relation to the Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 (NSW) included the following: "The second [NSW Law Reform Commission (LRC)] report, published in 2013, considered criminal responsibility and consequences for those people with mental health impairment or cognitive impairment who are charged with more serious offending that is heard in the District Court or Supreme Court. … The report proposed that a statutory definition of 'mental health impairment' and 'cognitive impairment' be developed to apply to a statutory test for fitness to be tried; the defence of mental health impairment and cognitive impairment; and the partial defences in the Crimes Act 1900 of substantial impairment and infanticide. … The bill implements these recommendations. … … The LRC recommended that partial defences in the Crimes Act 1900 also be updated to modernise the language of the provisions and to incorporate the definitions of the bill. This includes incorporating the definitions of mental health impairment and cognitive impairment and updating the terms of the partial defence of substantial impairment - removing the reference to 'abnormality of the mind arising from an underlying condition' in favour of the definition. It also includes updating the terms of the partial defence and offence of infanticide." [1]

Submissions

The Crown's submissions noted that, under the old form of s 23A, the issue for consideration was whether an accused was substantially impaired "by an abnormality of the mind arising from an underlying condition" but that, since the amendments in 2021, the issue for consideration is whether an accused was substantially impaired "by a mental health impairment or a cognitive impairment". Which form of s 23A applies will determine the issues that the expert psychiatrists' evidence needs to address and the issues that the jury must consider. It was also noted that Dr Eagle and Dr Martin have provided reports dealing with the accused's impairment under both forms of s 23A and they have each reached the same conclusions whether the old or the new form of the section applies. Accordingly, it was submitted that there was no unfairness to the accused whichever form of s 23A were to apply.
The Crown submitted in effect that to apply the new form of the section from the date of amendment could lead to difficulties and unnecessary complexity in proceedings. For example, it was observed that, if such an approach were adopted, the test to be applied could have changed during the course of a trial and one expert may have given evidence in relation to the old form of the section and another expert may have given evidence in relation to the new form.
In addition, it was contended that in proceedings on foot at 27 March 2021 in which both the partial defence under s 23A of the Crimes Act and the defence of mental illness were raised, the transitional provisions in relation to the defence of mental illness in cll 5 and 6 of Sch 2 to the Mental Health and Cognitive Impairment Forensic Provisions Act would mean that the old form of the defence of mental illness formerly found in s 38 of the Mental Health (Forensic Provisions) Act would apply. In these circumstances, it was submitted that it would be appropriate to apply the old form of s 23A rather than the new statutory terms adopted in the 27 March 2021 amendments.
The accused's submissions noted the terms of the amendments and the transitional provisions in relation to s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act and the absence of transitional provisions in relation to section 23A of the Crimes Act. Attention was also drawn to s 30 of the Interpretation Act.
The accused submitted that the trial commenced on 7 August 2020 when she was arraigned in this Court and the trial date was fixed. It was said that, as a consequence, the trial commenced before the amendments to s 23A came into operation.
The accused's submissions noted that certain factors pointed against the new form of s 23A applying in the present case, namely that: 1. the amendment concerned a substantive defence rather than a matter of procedure; 2. there was an absence of clear words to suggest the amendment should apply to proceedings that had already commenced; and 3. to conclude that the new form of s 23A had immediate effect would be to conclude that the amendment might have taken effect halfway through a trial and possibly halfway through a jury address or jury deliberation.
Nonetheless it was also submitted that there were other factors which pointed in the opposite direction including: 1. since the accused did not perceive any substantial benefit or detriment if the new form of s 23A were applied, any presumption against retrospectivity would not have the same force that it would in a case where rights were more obviously affected; and 2. since the purpose of the amendment appears to be to modernise language rather than to alter the substance of the defence, this may imply that the amendment should have immediate effect and the possibility of any alteration mid-trial should be less concerning.
Further, the accused noted that there were no authorities that had determined this issue. In R v Warren Scott (No 2) [2021] NSWSC 1201, a judge alone trial before N Adams J which commenced before the amendments to s 23A, the parties agreed that the unamended version of the section was applicable and her Honour, at [253], was content to proceed on that basis. It was also noted that R v Carroll [2000] NSWSC 410 concerning earlier amendments to s 23A was not of assistance in light of the specific transitional provisions applicable to those amendments which have no counterpart in the present situation.
Finally, the accused submitted that the Court's focus should be on the words of the Act.

Consideration

The events giving rise to the count on the indictment in the present case occurred in January and February 2019. The accused was arraigned in this Court on 7 August 2020 and pleaded not guilty and, as a result, the matter was listed for trial. In these circumstances and having regard to the terms of s 130 of the Criminal Procedure Act 1986, the accused's trial should be taken to have started on 7 August 2020, on the basis explained in JC v Director of Public Prosecutions (NSW) (2014) 87 NSWLR 320; [2014] NSWCA 228 at [21]-[28] (Basten JA, Beazley P and Ward JA agreeing).
The amendments to s 23A of the Crimes Act, effected by Sch 3 to the Mental Health and Cognitive Impairment Forensic Provisions Act, commenced on 27 March 2021, well after the events in January and February 2019 and well after the start of the accused's trial on 7 August 2020.
In order to determine which form of s 23A of the Crimes Act applies in the present case, it is essential to have regard to the relevant provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act, including the new defence of mental health impairment or cognitive impairment, the amendments to the Crimes Act and the transitional provisions. The principles to be applied in construing these provisions include the general rule of the common law that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events: Maxwell v Murphy (1957) 96 CLR 261 at 267 (Dixon CJ); [1957] HCA 7; Rodway v The Queen (1990) 169 CLR 515 at 519 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ); [1990] HCA 19. Section 30 of the Interpretation Act, which has been quoted above, is a statutory provision to essentially the same effect.
To the extent that the amendments to s 23A of the Crimes Act materially affected the "rights" and "liabilities" of the accused such as they were before the amendments came into force, then in the absence of express transitional provisions or some other clear expression of legislative intention to the contrary, the amending provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act should be construed as not applying in the present proceedings and s 23A should be applied in its form prior to 27 March 2021.
Further, from the extrinsic material, it is apparent that one of the mischiefs which those provisions were designed to remedy was the outdated and inconsistent language used in the Mental Health (Forensic Provisions) Act and the Crimes Act in various provisions involving what is currently described as "mental health impairment and cognitive impairment". In particular, one of the objectives of the 27 March 2021 amendments was to adopt consistent statutory definitions of "mental health impairment" and "cognitive impairment" to be applied not only to the statutory test for fitness to be tried and the defence of mental illness, or of mental health impairment or cognitive impairment, but also to the partial defence in s 23A of the Crimes Act of substantial impairment.
The transitional provisions relating to the new form of the defence of mental health impairment or cognitive impairment in s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act, found in cl 5 of Sch 2 to that Act, indicate that the Parliament did not intend that such changes should be applied in relation to: "proceedings for offences commenced before the commencement of [the amendments] where a question has been raised before that commencement as to whether the defendant was, at the time of commission of the offence, mentally ill as referred to in section 38 of the former Act".
Since the factual circumstances that give rise to the defence of mental illness, or mental health impairment or cognitive impairment, might also support, in the alternative, the partial defence under s 23A (as indicated by s 23A(7)), the preferred construction of the relevant amending provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act should be one which achieves a measure of consistency in linguistic approach rather than the application of outdated language in respect of the defence at the same time as the application of the more modern language in respect of the partial defence. If this approach is adopted, the old form of s 23A of the Crimes Act should be held to apply to proceedings commenced before 27 March 2021, when the amendments came into effect.
Applying the old form of s 23A in the present case would also be consistent with the approach adopted in R v Warren Scott (No 2) at [253]. It should be noted, however, that the parties in that case were in agreement that the old form of s 23A applied and, consequently, it was not necessary for N Adams J to consider the question in any detail.
Finally, a further consideration which weighs in favour of construing the amendments to s 23A as not applying in proceedings on foot before the amendments commenced is the fact that, if the new form of s 23A were applicable in all proceedings immediately upon commencement of the amendments, the form of s 23A to be applied might have changed partway through a trial and possibly partway through a jury address or jury deliberation. Such a result would be unsatisfactory.
There did not appear to me to be any considerations of substance which supported a construction of the amending provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act that made the amended form of s 23A of the Crimes Act applicable in respect of events which took place before, and trials which commenced before, the date on which the amending provisions commenced.
In light of all these considerations, I am of the view that the applicable form of s 23A in this case is as it was prior to the March 2021 amendments, namely: "23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if - (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death. (7) If, on the trial of a person for murder, the person contends - (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section - underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind."

Conclusion

For these reasons, the form of s 23A of the Crimes Act which is to be applied in the present case is the form of that section prior to the amendments effected by the commencement of the Mental Health and Cognitive Impairment Forensic Provisions Act in March 2021, and the relevant evidence of the psychiatrists will be the evidence directed to the issues raised by that form of s 23A.

Endnote

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 June 2020 at 2349-2350, 2352. 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: 24 August 2022

Mental Health (Forensic Provisions) Act 1990(NSW)

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