Masters v R [2022] NSWCCA 228

Masters v R [2022] NSWCCA 228 · Read the judgment on AustLII

Catchwords: Mental illness defence – M’Naghten rules – level of capacity to understand wrongfulness

In this decision the Court of Criminal Appeal has examined the level of capacity required in order to establish the mental illness defence. Although it was considered in the context of now-repealed legislation, it considers the test under the current Act as well, and concludes in part that there is no requirement of complete incapacity to reason about wrongfulness.

The appellant was charged with dangerous driving occasioning the death of one person, and grievous bodily harm to another. He was driving on the wrong side of the road, at speed, and collided head-on with another car. He had a documented history of psychosis and delusions, friends and family had recently observed him acting erratically, and the suggestion was that the car accident may have been an attempt to commit suicide. The appellant faced a judge-alone trial, in which the only issue was whether he met the criteria for the mental illness defence. The psychiatric evidence was unanimous that the defence was available and it seems that the parties were more or less agreed; the parties initially sought to simply act upon the tendered psychiatric reports. However, despite the unanimity, the trial judge remained unconvinced. Eventually the parties called the psychiatrists to give evidence.

During that evidence, the trial judge intervened significantly in the examination of the psychiatrists, albeit (according to the judges on this appeal), the experts were still able to express their opinions. Ultimately, the trial judge concluded that the defence was not made out, concluding that the evidence was not sufficient to conclude that ‘the accused was disabled or incapable or quite incapable, or that it was impossible for him to consider with some degree of composure and reason or with some moderate degree of calmness that what he did was wrong’. The appellant appealed on grounds including that the trial judge’s interventions were excessive (which was rejected, in the circumstances of this case), and on the basis that the trial judge applied the wrong test. This summary only considers the ground on the test for the mental illness defence.

This matter was still subject to the Mental Health (Forensic Provisions) Act 1990, since repealed. At that time, the test for the mental illness was encapsulated in the case of R v M’Naghten (1843) 10 CL & Fin 200; 8 ER 718, otherwise known as the ‘M’Naghten rules’. Those rules are now essentially codified in s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and the judgment makes reference to the new test in passing; this decision will be of assistance to anybody facing a case in which the mental illness defence is raised.

The issue upon which the judge diverged from the experts (and the parties) was in that limb of the test which asks whether the defendant knew their acts were wrong, in the sense that they could reason with a moderate degree of sense and composure. Two High Court decisions – one a very unusual first instance trial judgment of a single judge of the High Court – had talked of the M'Naghten test as grappling with the question of whether the defendant was ‘incapable’ of reasoning.

Here, the Court (Lonergan J, with whom Brereton JA and N Adams J agreed) started with the unchallenged proposition that it is not sufficient to establish the mental illness defence to establish only a ‘disordered mind’ or ‘defect of reason’ (at [136]). In attempting to discuss an ‘incapacity’ the Crown had, according to the Court, attempted to add something to both the M’Naghten test and s 28 of the Mental Health and Cognitive Impairments Forensic Provisions Act 2020 which was not there.

Importantly, the test does not require a total absence of capacity (at [138]). The test does not require that the accused be ‘disabled’ or ‘quite incapable’. The test is not incapacity; the question is the ‘capacity to know’, not a requirement that the defendant prove incapacity in some absolute sense (emphasis in original – at [141]). It suffices if by reason of a disease of the mind the accused cannot reason with some moderate degree of calmness in relation to the moral quality of what they are doing, so that they do not know that what they are doing is wrong (at [146]).

Note that this last-quoted paragraph uses the language of M’Naghten: a ‘disease of the mind’ – now replaced by either a ‘mental health impairment’ or ‘cognitive impairment’. Care is needed in applying this decision to the new legislation, although it does inform the test significantly.

In the event, the Court held that the trial judge had applied the wrong test, quashed the finding of guilt, and substituted the special verdict of ‘act proven but not criminally responsible’.