R v Barolia (No. 2) [2021] NSWDC 696

R v Barolia (No. 2) [2021] NSWDC 696

For the purposes of Sch 2 cl 5, the mental illness defence had not been raised before commencement of the new Act merely because evidence existed or expert reports had been served. There was no formal notification to the Crown or DPP and no reference to the defence in any document before the Court before 9 September 2021. The issue was raised formally only on 9 September 2021, after commencement of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, so the new Act applies and there is no need to have recourse to Sch 2 cl 5.

Jurisdiction
Australia
Judgment Date
14 September 2021
Procedural Posture
Criminal Procedural Ruling Concerning Mental Health and Statutory Interpretation / Preliminary Determination of Applicable Legislation Before Trial
Outcome
The Court found that the issue was only raised formally on 9 September 2021 and that the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 applies.
Legal Topics
['special Verdict' 'act Proven But Not Criminally Responsible' 'not Guilty by Reason of Mental Illness' 'transitional Provisions' 'application of Mental Health and Cognitive Impairment Forensic Provisions Act 2020']
['criminal Law' 'mental Health Law' 'statutory Interpretation' 'criminal Procedure'] ['special Verdict' 'act Proven But Not Criminally Responsible' 'not Guilty by Reason of Mental Illness' 'transitional Provisions' 'application of Mental Health and Cognitive Impairment Forensic Provisions Act 2020']

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Procedural Posture

Criminal Procedural Ruling Concerning Mental Health and Statutory Interpretation / Preliminary Determination of Applicable Legislation Before Trial

Legal Issues

  1. 1 ['Whether the proceedings were governed by s 38 of the Mental Health (Forensic Provisions) Act 1990 or by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.' "Whether, for Sch 2 cl 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, a question as to the defendant's mental illness had been raised before 27 March 2021."]

Ratio Decidendi

For the purposes of Sch 2 cl 5, the mental illness defence had not been raised before commencement of the new Act merely because evidence existed or expert reports had been served. There was no formal notification to the Crown or DPP and no reference to the defence in any document before the Court before 9 September 2021. The issue was raised formally only on 9 September 2021, after commencement of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, so the new Act applies and there is no need to have recourse to Sch 2 cl 5.

Court Disposition

The Court found that the issue was only raised formally on 9 September 2021 and that the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 applies.

Orders

  • ['The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 applies.' 'There is no need to have recourse to Sch 2 cl 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.']