By Paul Gregoire and Ugur Nedim
Former Optus employee Daniel Skapik was convicted on 14 November 2023, on two counts of unauthorised access of restricted data and one of unlawfully disclosing information, which both related to his having pried into the client account of Olivia Cameron, the partner of Joshua Wooton, and then providing Wooton, an old friend, with the details that he’d requested.
Yet, on appeal, NSW District Court Judge Andrew Scotting quashed the convictions, finding Skapik should be treated as an accused suffering mental illness at time of offending, which opened up the alternative sentencing options contained under section 20BQ of the Crimes Act 1914 (Cth), and on 3 September 2024, Skapik was discharged into the care of a psychologist for the period of 12 months.
At the request of the Commonwealth Director of Public Prosecution (CDPP), Judge Scotting then submitted the following question to the NSW Court of Criminal Appeal (NSWCCA) to consider:
“For the purpose of section 20BQ(1)(a) of the Crimes Act 1914 (Cth), was the question of whether [Mr Skapik] was suffering from a mental illness within the meaning of the civil law of the state to be determined with reference only to the definition of ‘mental illness’ in section 4 of the Mental Health Act 2007 (NSW)?”
During the resulting question of law proceedings, the Crown put that the question be answered in the affirmative, outlining that “mental illness within the meaning of the civil law” solely refers to a situation when the court is considering a “law providing for the involuntary detention of the mentally ill” or “civil commitment law”, and whether an accused should be involuntary detained in a hospital.
But the three-justice bench of the NSWCCA ruled on 24 February 2025, that the question is properly answered in the negative.
Civil, as opposed to criminal, law
The question regarding mental illness was put to the NSWCCA under the terms of section 5B of the Criminal Appeal Act 1912 (NSW), which permits District Court judges to put “any question of law arising on any appeal” to the higher court for direction. This can occur even after the lower court appeal has been finalised, so the court’s answer has no actual bearing on the outcome of the case.
In her 24 February 2025 findings, NSWCCA Justice Kristina Stern explained that section 20BQ of the Crimes Act provides a NSW Local Court with a variety of sentencing options when dealing with a Commonwealth offence, if the accused is suffering from a mental illness in respect of NSW civil law.
In terms of sentencing options, section 20BQ(1)(c) provides that the court may order dismissal of the charge and discharge of the accused unconditionally or discharge of the individual into the care of a responsible person or require them to attend another person for assessment, with the two latter options lasting for no longer than 3 years. And the court can also make any other appropriate order.
Skapik’s lawyers, however, argued that the mental illness referred to in section 20BQ means how it is understood within NSW civil, as opposed to criminal, law, and this is not to be understood as limited to the definition in section 4 of the Mental Health Act 2007 (NSW).
Justice Stern set out that in making the distinction around section 20BQ sentencing options relating to civil law understandings of mental illness, this is in contrast to the well-established mental illness concerns of the criminal law, which comprise of whether a verdict of acquittal due to mental illness is warranted, as well as to questions relating to fitness to plead.
And her Honour further underscored that being unfit to plead has traditionally needed “something beyond mental illness”.
Limited Crown reading
Justice Stern provided a number of reasons as to why the Crown’s consideration of the section 20BQ phrase “mental illness within the meaning of the civil law of the state” does not only pertain to “mental illness of a character or severity which would permit involuntary admission or detention in a hospital under state… law”.
The first reason provided was that there is nothing within the language of the text of section 20BQ to convey this interpretation.
Further the section 20BQ sentencing options are for both mental illness and intellectual disability. But ‘intellectual disability’ remains undefined, so her Honour considers it would be curious to limit these options to the mentally ill in respect of civil commitment law, while this restriction does not pertain to intellectual disability.
Another issue raised in relation to the Crown’s stance is that the sentencing options permit several alternatives for discharge but no chance of involuntary admission or detention in a hospital. Yet, going by the Crown, the discharge options only become available on condition that the accused has “a mental illness of a character and severity which would justify civil commitment”.
Her Honour further points out that section 20BR of the Crimes Act “permits considerable flexibility as to how a court of summary jurisdiction is to form a judgement that a person is suffering from a mental illness”, and this “flexibility” is consistent with a court being able to make an assessment and decision under section 20BQ in “a simple and efficient way”.
Justice Stern further pointed to section 20BS of the Crimes Act 1914, which relates to involuntary detention in a hospital and the psychiatric probation orders in section 20BV of that same Act, as while they both use the expression “a mental illness within the meaning of the civil law”, in line with section 20BQ, neither of them relates to civil commitment.
Active laws on enactment
Section 20BQ of the Crimes Act was enacted under the Crimes Legislation Amendment Act (No. 2) 1989, and it came into effect on 17 July 1990, so Justice Stern decided to consider civil commitment laws at that time, in light of the Crown’s contentions.
The power of civil commitment was to be found in section 12 of the Mental Health Act 1958 (NSW), which related to a “mentally ill person”, as defined under section 4 of this Act, and it “depended, in part, on being in need of “care, treatment or control for his own good or in the public interest” and for the time being is “incapable of managing himself or his affairs” owing to “mental illness”.
At that time, the Mental Health Act 1990 (NSW) had been passed but was not yet in effect. This legislation included a mental illness definition that required the relevant condition must “seriously impair” a person’s mental functioning and include one or more of a list of symptoms, which was applied for purposes of civil commitment and other measures, like the availability of treatments.
The laws of the present
The Mental Health Act 1990 was replaced by the Mental Health Act 2007 (NSW), of which the question of law turns upon.
Section 4 of the Mental Health Act 2007 contains the definition of mental illness as “a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms”: delusions, hallucinations, serious disorder of thought form, a severe disturbance of mood or sustained or repeated irrational behaviour.
The Crown’s assertion further falls down when considering section 12 of the current Mental Health Act, which relates to civil commitments and “relies both on the concept of a mentally ill person and that of mentally disordered person”, while section 14 adds that a person is only mentally ill if there are grounds to believe they need “care, treatment or control” to protect themselves or others.
These laws show that people can meet the definition of being mentally ill without any reason for civil commitment.
Judicial conclusions
“In light of the analysis… the Crown’s contentions as to construction should be rejected,” Justice Stern set out. “Considerations of text and context point strongly in the opposite direction.”
Her Honour outlined that the fact that the section 20BQ law mentions the civil law of a state or territory and it directs that the alternative sentencing options relate to civil law, rather than criminal law, reveals that the laws relating to whether an accused should be acquitted due to mental illness or whether they are fit to stand trial, do not pertain to these alternative sentencing measures.
So, the question of law was answered in the negativve on 24 February 2025, and NSWCCA Justices Peter Garling and Natalie Adams agreed with their colleague’s interpretation of and conclusion relating to the question of law.
