R v Macguire [2020] NSWSC 1768

Supreme Court New South Wales

Medium Neutral Citation: R v Macguire [2020] NSWSC 1768 Hearing dates: 7 December 2020 Date of orders: 8 December 2020 Decision date: 08 December 2020 Jurisdiction: Common Law Before: Fagan J Decision: Verdict: Not guilty on the ground of mental illness. Matthew Terrence John Macguire is to be detained at the Forensic Hospital until released by due process of law. Catchwords: CRIMINAL LAW – murder – accused unfit to be tried – special hearing – judge alone – psychiatric diagnosis of treatment resistant schizophrenia – whether defence of mental illness established – M'Naghten rules – not guilty on the ground of mental illness Legislation Cited: Mental Health Act 2007 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Hawkins v The Queen (1994) 179 CLR 500 R v Minani (2005) 63 NSWLR 490, [2005] NSWCCA 226 R v M'Naghten (1843) 8 ER 718 The King v Porter (1933) 55 CLR 182 Category: Principal judgment Parties: Regina (Crown) Matthew Terrence Macguire (Accused) Representation: Counsel: P Barrett (Crown) T Evers (Accused)

Solicitors: Solicitor for Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2019/110318 Publication restriction: No

Judgment 1. On 11 December 2019 Matthew Terrence John Macguire was committed from Burwood Local Court to this Court for trial on a charge that on 8 April 2019 at Silverwater he did murder Ryan Fennell. The particulars of the charge are that whilst the accused and the deceased were sharing a cell in the Metropolitan Remand and Reception Centre ("MRRC") at Silverwater prison, the accused carried out a sustained attack on Mr Fennell, inflicting severe head injuries that resulted in his death. On 7 December 2020 I conducted a special hearing of the charge pursuant to s 19(2) of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Forensic Provisions Act"). These are the Court's reasons for the verdict and orders that will be entered pursuant to my determination under that section. 2. On 20 April 2020 Hidden AJ found the accused unfit to be tried and referred the matter to the Mental Health Review Tribunal as required by the Forensic Provisions Act. His Honour remanded the accused in custody at the Forensic Hospital, subject to any order of the Tribunal. The Forensic Hospital, located at Long Bay, is referred to by various names throughout the medical records and reports in the case. In these reasons I will convert all such references to "the Forensic Hospital". On 20 July 2020 the Tribunal determined that the accused was "presently unfit and will not become fit to be tried for the [offence] with which he has been charged within 12 months of the Court's finding of unfitness". The Tribunal determined that he should be detained at the Forensic Hospital for care and treatment. 3. The Tribunal's determination was duly conveyed to the Office of the Director of Public Prosecutions. On 11 August 2020 the Director informed the Court that he intended to proceed with the charge. Accordingly the Court listed the special hearing under s 19(2). That section is in the following terms: 19 Court to hold special hearing after advice received from Director of Public Prosecutions (2) A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged. 1. No election for a jury was made under s 21A of the Forensic Provisions Act. The special hearing was therefore conducted by judge alone. As provided for in s 21(3)(a) of the Act, the accused was taken to have entered a plea of not guilty. He was represented by counsel who informed the Court from the outset that he would submit that the proper verdict on the evidence should be not guilty on the ground of mental illness. The Crown prosecutor opened on the basis that he accepted that should be the verdict. 2. The effect of ss 21B and 22(1)(b) of the Act is that one of the verdicts available to a judge who determines a special hearing without a jury is: not guilty on the ground of mental illness. The defence of mental illness falls for consideration if I am first satisfied beyond reasonable doubt that the accused caused the death of the deceased by deliberate acts: Hawkins v The Queen (1994) 179 CLR 500; R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [32].