Masters v R [2022] NSWCCA 228

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Masters v R [2022] NSWCCA 228 Hearing dates: 11 March 2022 Date of orders: 24 October 2022 Decision date: 24 October 2022 Before: Brereton JA at [1] N Adams J at [2] Lonergan J at [3] Decision: (1) The appeal is allowed. (2) The convictions of the appellant in the District Court on 14 July 2020 for the offences of dangerous driving causing death contrary to s 52A(1)(c) of the Crimes Act 1990 (NSW) and dangerous driving causing grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1990 (NSW) and the sentence imposed on 20 September 2020 are quashed. (3) In lieu thereof, pursuant to clause 5(3) Schedule 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) substitute special verdicts of acts proven but not criminally responsible. (4) Discharge the appellant on the condition that he comply with all requirements of his Community Treatment Order and take medication prescribed to him by his treating psychiatrist. Catchwords: CRIMINAL LAW – conviction appeal – appeal from decision of the District Court – judge alone trial – whether trial judge's conduct gave rise to procedural unfairness or an apprehension of bias causing a miscarriage of justice – whether wrong test applied in determining whether appellant had established that he was mentally ill at the time of the alleged offence – whether a special verdict of act proven but not criminally responsible should be entered pursuant to s 7(4) of the Criminal Appeal Act 1912 – appeal allowed – special verdicts entered Legislation Cited: Crimes Act 1990 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Appeal (Mental Illness) Amendment Act 1986 Mental Health Act 2007 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 Carter v R [2019] NSWCCA 11 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Galea v Galea (1990) 19 NSWLR 263 Hone v The State of Western Australia (2007) 179 A Crim R 138; [2007] WASCA 283 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Jones v National Coal Board [1957] 2 QB 55 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67 Polsen v Harrison [2021] NSWCA 23 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 R v M'Naughten (1843) 10 CL & Fin 200; 8 ER 718 R v Porter (1933) 55 CLR 182; [1933] HCA 1 R v T, WA (2014) 118 SASR 382; [2014] SASCFC 3 Sodeman v R (1936) 55 CLR 192; [1936] HCA 75 Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56 TA v R [2019] NSWCCA 145 Tarrant v R [2018] NSWCCA 21 Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 Yuill v Yuill [1945] P 15; [1945] 1 All ER 183 Category: Principal judgment Parties: Nick Masters (Applicant) Regina (Respondent) Representation: Counsel: T Game SC / C O'Neill (Applicant) E Balodis / A Morris (Respondent)