R v Fleming (Special Verdict) [2023] NSWSC 561

Supreme Court New South Wales

Medium Neutral Citation: R v Fleming (Special Verdict) [2023] NSWSC 561 Hearing dates: 22 May 2023 Decision date: 23 May 2023 Jurisdiction: Common Law Before: Wilson J Decision: With respect to each of counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the indictment of 1 and 3 May 2023 the Court returns the special verdict pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) that the act alleged in each of those counts is proven, but the accused is not criminally responsible for them Catchwords: CRIME – trial – accused indicted for firearms offences and two counts of kidnapping – acts proved by Crown – consideration of defence under the Mental Health Cognitive Impairment Forensic Provisions Act 2020 - unchallenged evidence of a mental health impairment – accused did not know his acts were wrong due to impairment – special verdict returned Legislation Cited: Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 (NSW) Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) Category: Principal judgment Parties: Rex (Crown) Simon Fleming (Accused) Representation: Counsel: J Renwick CSC SC with M Kalyk (Crown) L Rowan (Accused)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Good Legal Lawyers (Accused) File Number(s): 2021/338248 Publication restriction: Nil

JUDGMENT 1. HER HONOUR: In the fourth week of the trial of the accused, Simon Fleming, the Crown conceded that count 1 of the indictment of 1 and 3 May 2023 was incapable of proof, and the jury empanelled to hear the trial was directed to return a verdict of not guilty with respect to the offence of engaging in a terrorist act, contrary to s 101.1(1) of the Commonwealth Criminal Code Act 1995. Following the entry of the verdict, the jury was discharged from further service with respect to counts 2 to 12 on the indictment. 2. The only offence contrary to a federal statute having been determined, State provisions are applicable to the balance of the charges, and the parties agreed that it was appropriate for the matter to proceed pursuant to s 31 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the MHCIFP Act") rather than continue with the part-heard trial. It was accepted that the evidence established a defence of mental health impairment, and the Court was asked to proceed without a jury, pursuant to s 31. 3. Section 31 provides: 31 Special verdict where defendant and prosecutor agree on impairment The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if— (a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and (b) the defendant is represented by an Australian legal practitioner, and (c) the court, after considering that evidence, is satisfied that the defence is so established. 1. On the basis of the evidence of Dr Adam Martin, supported by other, lay, evidence in the Crown case including that of Neil Hay and Ex AE, each of the sub-sections of s 31 was satisfied, and that was clearly an appropriate course for the Court to take. Whilst the jury, constituting the court, could have been invited to return the special verdict, that would have entailed some time spent in dealing with evidentiary issues consequential to orders made by the court on 22 May 2023. The more efficient course was for the Court to discharge the jury, and thereafter enter the special verdicts. 2. Although there is some tension between s 31 of the MHCIFP Act and s 133 of the Criminal Procedure Act 1986 (NSW) the general view is that, although the court is not "trying" a criminal case, there remains a common law requirement that a court provide reasons for the decisions it makes, an approach which promotes transparency in judicial decision making, and facilitates open justice. For that reason, I propose to give a judgment in the usual course. This judgment will include, albeit briefly, a statement of the relevant law, and of the evidence from which the facts are found.