R v Papanicolaou (No 4) [2021] NSWSC 1698

Supreme Court New South Wales

Medium Neutral Citation: R v Papanicolaou (No 4) [2021] NSWSC 1698 Hearing dates: 15 December 2021 Date of orders: 23 December 2021 Decision date: 23 December 2021 Jurisdiction: Common Law Before: Wright J Decision: The form of s 23A of the Crimes Act 1900 (NSW) 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 2020 (NSW) in March 2021, and the relevant evidence of the psychiatrists in this case will be the evidence directed to the issues raised by that form of s 23A. Catchwords: CRIME — murder — partial defences — substantial impairment CRIMINAL PROCEDURE — trial — case management — pre-trial hearing — advance ruling on whether s 23A of the Crimes Act 1900 (NSW) applies in its current form or in the form it had prior to amendments by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) — where trial commenced prior to commencement of amendments — where earlier form refers to substantial impairment by abnormality of mind arising from an underlying condition while current form refers to mental health impairment or cognitive impairment STATUTORY INTERPRETATION — amendment and repeal — retrospectivity — Interpretation Act 1987 (NSW), s 30 — absence of express transitional provisions or other express legislative intention regarding application of current form of s 23A of the Crimes Act 1900 (NSW) to proceedings on foot prior to commencement of amendments by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) — preferred construction requires application of earlier form of statutory provision Legislation Cited: Crimes Act 1900 (NSW), ss 4C, 23A, Sch 11 Criminal Procedure Act 1986 (NSW), ss 143, 151 Evidence Act 1995 (NSW), s 192A Interpretation Act 1987 (NSW), s 30 Mental Health (Forensic Provisions) Act 1990 (NSW), s 38 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 30, Schs 2, 3 Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 (NSW) Cases Cited: JC v Director of Public Prosecutions (NSW) (2014) 87 NSWLR 320; [2014] NSWCA 228 Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7 R v Carroll [2000] NSWSC 410 R v Warren Scott (No 2) [2021] NSWSC 1201 Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 June 2020 Category: Procedural rulings Parties: Regina (Crown) Hanny Papanicolaou (Accused) Representation: Counsel: C Taylor (Crown) T Quilter with J Brock (Accused)