R v Gough [2021] NSWDC 180

District Court New South Wales

Medium Neutral Citation: R v Gough [2021] NSWDC 180 Hearing dates: 10 May 2021 Date of orders: 14 May 2021 Decision date: 14 May 2021 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 43 Catchwords: CRIME - alleged wounding with intent to murder - joint application for special verdict under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) - construction issue of what is the 'defence' that the Court needs to be satisfied is established in s 31(c) - consideration of onus of proof - whether act proven - whether defendant is 'not criminally responsible' - consideration of whether defendant had 'mental health impairment' at time of offending Legislation Cited: Crimes Act 1900 (NSW) ss 27, 33 Evidence Act 1995 (NSW) s 177 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 4, 5, 31, 32, 33, 34 Cases Cited: R v Presser (1958) VR 45 Texts Cited: Nil. Category: Principal judgment Parties: Director of Public Prosecutions (NSW) Mr J Gough (defendant) Representation: Counsel: Ms E Nicholson for the Director of Public Prosecutions (NSW) Mr J O'Sullivan for the defendant

Solicitors: David Kelly Lawyers for the defendant File Number(s): 2017/174683 Publication restriction: Nil.

Judgment 1. The defendant is charged on indictment that on 11 June 2017 at Wyong (in the State of New South Wales) he wounded David Moorley with intent to murder him, contrary to s 27 of the Crimes Act 1900 (NSW). On the alternative count 2, he wounded David Moorley with the intent to cause him grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW).

Application for special verdict 1. The Crown and Counsel for the defendant agree that the proposed evidence in the hearing establish that the accused has a 'mental health impairment' or 'cognitive impairment'. Those concepts are defined in ss 4 and 5, respectively, of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the 'Act'), whose provisions commenced on 27 March 2021.

The Statutory Provisions 1. That being so, the Crown and the defendant jointly apply for an order that the Court render a special verdict under s 31 of the Act. Section 31 provides that: "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." 1. In circumstances, such as the present, where there is an alternative charge, s 32 provides that the fact that a court enters a special verdict of act proven, but not criminally responsible, in respect of an offence does not result in a requirement for the court to also enter a special verdict in respect of an offence available as an alternative to the offence. 2. If the Court is satisfied that the defence is established, s 33 provides that the Court may make one or more of the following orders: (a) an order that the defendant be remanded in custody until a further order is made under this section, (b) an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law, (c) an order for the unconditional or conditional release of the defendant from custody, (d) other orders that the court thinks appropriate. 1. Section 34 further provides that the Court must refer the defendant to the Tribunal if a special verdict of act proven but not criminally responsible is returned or entered and an order is not made for the unconditional release of the defendant. 2. There is no dispute that at the time of this application for special verdict, the defendant has been represented by an Australian legal practitioner. Further, as previously indicated, defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment. 3. The only remaining question, therefore, is whether the Court is satisfied that a defence of mental health impairment or cognitive impairment is established.

Definitions of 'mental health impairment' and 'cognitive impairment' 1. Section 4(1) provides a person has a mental health impairment for the purposes of the new Act 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. 1. Section 4(2) provides a mental health impairment may arise from an anxiety disorder, an affective disorder (including clinical depression and bipolar disorder), a psychotic disorder, a substance induced mental disorder that is not temporary, or for other reasons. A person does not have a mental health impairment for the purposes of the new Act if it is caused solely by the temporary effect of ingesting a substance or a substance use disorder: s 4(3). 2. Section 5(1) provides a person has a cognitive impairment for the purposes of the new Act 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 s 5(2) or for other reasons. 1. Section 5(2) provides a cognitive impairment may arise from intellectual disability, borderline intellectual functioning, dementia, an acquired brain injury, drug or alcohol related brain damage, including foetal alcohol spectrum disorder, autism spectrum disorder, or for other reasons.

Construction issue 1. The joint application raises a point of construction concerning the new legislation. For the purpose of the evidentiary inquiry that the Court has to make for the purposes of s 31(c) of the Act, it appeared to me (in the absence of authority brought to the Court's attention) that what the Court must be satisfied of is all that is encompassed in the expression 'act proven but not criminally responsible', and not just the existence of either a mental health impairment or cognitive impairment in the defendant. This is a broader construction of s 31(c) than another potentially available construction, which would posit that it is sufficient for the Court to be satisfied only that the defendant has a mental health impairment or cognitive impairment (being the "defence" expressly referred to in s 31(a)). But it seems to me strongly arguable that it is a particular defence which gives rise to the special verdict and that defence, in substance and in form, is that of an act which is proven, about which the accused has no criminal responsibility for. 2. Another reason for this interpretation of s 31(c) is that it is relevant to considering what consequential orders the Court might make under s 33 (and s 34) that the Court satisfy itself, through its own inquiry, about the nature and extent of the act which forms the basis for the offence has been committed. 3. Construing the requirement in this way would plainly work no disadvantage to either the Crown or the accused: it remains necessary for the Court to be satisfied of the relevant impairment. The Crown and Counsel for the accused endorsed this construction of what the Court is required to be satisfied of.

Was the 'act proven'? 1. The Crown submitted (and Counsel for the accused did not disagree) that notwithstanding the defendant's admission, it carries the burden of proving, beyond reasonable doubt, that the act was proven. I accept that submission. The act, here, was the defendant wounding David Moorley. 2. The Crown relied upon police witness statements from Mr Moorley, Mr Peter Lark, and Mr Bruce Perks. It was Mr Perks who rang the 000 operator. The Crown also relied upon statements from some police officers, being Senior Constables Tinworth and Richardson (who both arrived on the scene, and apprehended the defendant), and also Sergeant Brennan. 3. Detective Senior Constable Michelle Daly proved a record of interview which the defendant participated in from 7:15am on the morning of the incident. He also consented to other forensic procedures, such as photographs and swabs of blood on his ear and one which was put inside his mouth. 4. The statements amply prove that on the date in question, in the Grand Hotel along the Pacific Highway in Wyong, early on a Sunday morning, the defendant initiated an unexpected and entirely unprovoked attack upon Mr Moorley in the latter's room of the hotel; which comprised the use of a knife applied to both sides of the victim's neck, and under his right armpit and also punches to the victim's face. At the time of the attack, no reason was given to the victim by the defendant, who was then also an occupant of the hotel. What made the attack so surprising was the evidence of the victim, and other occupants of the hotel, who knew the defendant, and who hitherto had considered that he was sociable and bore no one any evident ill-will. 5. The defendant later made statements to the police, upon his arrest, that he had visions of people coming into his room, punching his head whilst he was asleep. 6. In his ERISP, the defendant repeated that he had experienced attacks whilst he was sleeping and he perceived that the victim was one of him. Amongst other things, he said that the victim "does it to me enough times. I'll have a go back" and he admitted taking his fishing knife with him; expressing, also, his intent to kill the victim. He referred to the struggle, in which the victim was able to grab hold of his hands and he admitted inflicting a cut to the victim's throat; albeit using the wrong side of the knife. But although he used the knife, he was mainly punching the victim. At the hearing, an edited transcript of that interview was tendered by consent. 7. Dr Matthew Ingram, a general practitioner, prepared an expert certificate which was expected to be tendered under s 177 of the Evidence Act 1995 (NSW). This provided detail about the wounds. They comprised a 5cm laceration to the right side of the victim's neck through all layers of skin, two 1cm lacerations to the right side of the victim's chest through all layers of skin and bruises to his forehead. 8. Senior Constable Ketley, a forensic investigator attached to the Newcastle Crime Scene Section of the Forensic Evidence and Technical Services Command, conducted an examination of the knife thought to have been used in the attack. 9. I am satisfied beyond reasonable doubt that the defendant wounded Mr Moorley at the Grand Hotel in Wyong on the morning of 11 June 2017.

Did the defendant have a mental health, or cognitive impairment? 1. The Crown submitted (and Counsel for the accused did not disagree) that the defendant bears the onus of proving, on the balance of probabilities, that he suffered from a mental health, or cognitive impairment. I accept that submission. 2. The defendant relied upon the evidence of three forensic psychiatrists: Dr Richard Furst, Dr Gordon Elliott and Dr Yvonne Skinner.

Dr Furst's evidence 1. In a report dated 26 September 2018, after taking a full history, Dr Furst received an account from the defendant about his acts and examined him on his mental state. Applying the DSM-V criteria, Dr Furst diagnosed that he had schizophrenia and an alcohol use disorder. The former disease is often characterised by delusional beliefs, auditory hallucinations, disorder of thought and generally 'bizarre behaviour'. He observed that the defendant had little or no insight into the seriousness of his psychotic illness or his treatment needs. 2. Importantly, though he found that he was fit to be tried, Dr Furst considered that the defendant had been suffering from an untreated psychotic illness since around 2006, with chronic negative symptoms of schizophrenia, and impairment of psychosocial function. 3. Dr Furst opined that the defendant's expressed beliefs manifested his untreated schizophrenic illness and a response to delusional thinking; which distorted his decision-making capacity. He was unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure. That was sufficient to constitute a defect of reasoning under 'McNaughton rules'.

Dr Elliott's evidence 1. In a report dated 7 June 2019, Dr Elliott indicated that he had conducted a psychiatric assessment of the defendant, having also had the benefit of reading much of what constituted the Crown case. 2. He considered that the defendant was unfit to stand trial. Though he had a rudimentary understanding of the 'Presser criteria' (R v Presser (1958) VR 45), he struggled to understand certain procedural aspects of a criminal trial, such as the right of jury challenge – an obvious impediment for someone bent on representing themselves – as well as his determination not to rely upon a defence of not guilty on account of a mental illness. 3. Dr Elliott considered aspects of the defendant's psychiatric and medical histories; and also his past history as smoker and a moderately severe alcohol use disorder. 4. Dr Elliott opined that he had a long standing and untreated psychotic illness, characterised by delusional belief of a persecutory nature; what he called a 'persecutory delusional disorder'. In contrast to Dr Furst, Dr Elliott did not think that he exhibited broader symptoms of schizophrenia; considering that his psychotic symptoms were circumscribed. There was an absence of deficits in self-care, hygiene and emotional expressiveness characterising schizophrenia. 5. Dr Elliott did not, however, consider that the offender was cognitively impaired, nor suffered from a mental illness.

Dr Skinner's evidence 1. In a report dated 26 March 2021, Dr Skinner responded to a request from the ODPP for her opinion as to whether, at the time of the alleged offending, the defendant had a mental health impairment or a cognitive impairment and if so, what were the effects of such condition. She conducted an interview with the defendant, read the reports of Dr Elliott and Dr Furst, and the Crown's brief of evidence. 2. She opined that the offender was suffering from schizophrenia, and also from alcohol use disorder; the latter condition aggravating the former. Notwithstanding the defendant's denials to the contrary, Dr Skinner considers that he suffered from psychotic symptoms at the time of the offending: he was suffering delusions and exhibited auditory hallucinations; and probably also other psychotic phenomena. Although she did not ascribe a specific cognitive impairment, the effect of psychotic state would have impaired his capacity to reason, plan and organise his activities. The impairment had the effect that the defendant did not know his actions were wrong; that he honestly believed that the victim had assaulted him whilst he was asleep and that he had heard the victim's voice prior to the alleged offending. He lacked the specific intent to kill or inflict grievous bodily harm that is elemental to the primary and alternative offences for which he has been charged. Dr Skinner did not believe he was fit to stand trial. 3. Even three and a half years after the date of the alleged offending, Dr Skinner noted that the defendant continues to experience paranoid delusions, auditory hallucinations and probably other psychotic symptoms; with no insight into his illness.

Consideration 1. It will be noted that the Court has been assisted by the views of three different forensic psychiatrists, expressed on markedly different dates. If not universal, there is general consensus as to the symptoms. Dr Skinner joined with Dr Furst in ascribing the condition of schizophrenia, but there were some differences generally between the psychiatrists as to whether that could be a complete diagnosis of the defendant's condition. Nevertheless, it is not necessary to specifically pinpoint a singular, all-encompassing diagnosis. 2. All the psychiatrists agree that he exhibited and continues to exhibit psychotic symptoms. All agree he was delusional. Without putting a name on it, I find that he suffers from a psychotic disorder of some kind, which manifests in symptoms set out in s 4(1)(a)-(c) (incl) of the Act. Those symptoms constituted a mental health impairment. I also find that the proposed evidence in the proceeding establishes a mental health impairment which existed at the date of the offending. 3. That being so, for the purposes of s 31(c) of the Act, I am satisfied, that the defence has been established.

Consequential orders 1. The Crown and Counsel for the defendant agreed that if, as has occurred, I found that the defence was established, it was most appropriate for the Court to order that the defendant be remanded in custody until further order and referred to the Mental Health Review Tribunal; and further that he is not criminally responsible for wounding the victim. 2. The parties joined in proposed consent orders, which I now make. 3. The Court orders that: 1. Pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 a special verdict of 'act proven but not criminally responsible' is to be entered in respect of Count 1. (I note that pursuant to s 32 of the Act it is not necessary to enter a verdict in respect of the alternative count.) 2. Pursuant to s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, Mark Gough is to be detained at a correctional facility or such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law. 3. The Registrar is to notify the Minister for Health, as soon as practicable, of the making of these orders. 4. The Registrar is to notify the Mental Health Review Tribunal, as soon as practicable, of the making of these orders and is to provide to that Tribunal the following documentation: 1. A copy of the Court's reasons for verdict and orders; 2. A copy of Exhibit A (Crown bundle); and 3. A copy of the reports of Dr Yvonne Skinner, Dr Gordon Elliot and Dr Richard Furst. 1. The Registrar is to notify Justice Health, as soon as practicable, of the verdict and orders in this matter and provide to Justice Health the following documentation: 1. A copy of the Court's reasons for verdict and orders; 2. A copy of the reports of Dr Yvonne Skinner, Dr Gordon Elliot and Dr Richard Furst.

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