R v Benhima [2020] NSWDC 818

District Court New South Wales

Medium Neutral Citation: R v Benhima [2020] NSWDC 818 Hearing dates: 26 October 2020 Decision date: 27 October 2020 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: 'Not guilty' on the ground of mental illness Catchwords: TRIAL – reckless wounding with intent – mental illness defence Legislation Cited: Mental Health (Forensic Provisions) Act 1990, Cases Cited: Hawkins v R (1994) 179 CLR 500 M'Naghten's Case (1843) 8 ER 718 R v Kirkman [2019] NSW SC 1826 R v Minani [2005] NSWCCA 226 R v Porter (1933) 55 CLR 182 Category: Principal judgment Parties: Regina (Crown) Soraya Benhima (Accused) Representation: Counsel: Mr S Fraser (Accused)

Solicitors: Mr R Taylor (DPP) File Number(s): 2019/00228501 Publication restriction: No

Judgment

Introduction 1. The Crown has presented an indictment in relation to the accused Soraya Benhima, alleging that she, on 18 July 2019 at Austinmer did wound Benjamin Kooper with intent to cause him grievous bodily harm. This proceeding is a "special hearing" pursuant to ss 19-22 Mental Health (Forensic Provisions) Act 1990, hereinafter to be referred to as the "Act". There has been no election for the hearing to be conducted with a jury pursuant to s 21A of the Act and the verdict of the Court is to be given pursuant to ss 21B and 22 of the Act.

Background 1. The accused was born in January 1983 and at the time of relevant events was 36 years of age. The man that she is alleged to have wounded was a friend of hers from a relationship of at least a week and the wounding occurred in a self-contained flat she occupied in Hill Street Austinmer, owned by the residents living above her, Kevin and Judith Morrin. Her father lived next door. 2. The wounding occurred shortly before 5:30am on 18 July 2019 and the accused was arrested by police at the scene around about 5:40am. Her arrest is recorded by "body cam" video which is Exhibit B in these proceedings. That exhibit includes other "body cam" video taken by investigating police at a hospital at about 1:40pm the same day, after the accused had been previously sedated. The arresting police spoke to the accused in the presence of her father who gave them some history as to her recent hospitalisations and the fact that the accused had been diagnosed approximately 10 years before as suffering from schizophrenia. After her arrest the accused remained in custody until 15 October 2019, at which time she was released to bail and has remained on bail up until the present time. 3. The accused was found "unfit to be tried" in accordance with the relevant provisions of the Act by his Honour Judge O'Brien AM on 22 June 2020 and was referred to the Mental Health Review Tribunal. On 31 August 2020, the Tribunal concluded that the accused would remain unfit to be tried for at least a period of 12 months and directed that the matter be referred to the Director of Public Prosecutions for consideration. The learned Director determined that the matter should be further prosecuted by way of "special hearing" hence the matter has speedily come to this Court. The Court thanks both the prosecution and the defence for their expeditious handling of the matter. 4. There has been no oral evidence called. By agreement between the parties all relevant material has been tendered in documentary form or recorded on discs, Exhibit B being shown to the court. Both parties have prepared excellent written submissions which fairly set out relevant principles and summaries of material.