By Paul Gregoire and Ugur Nedim
On 22 September 2017, Nick Masters veered onto the wrong side of Port Macquarie’s Hastings River Drive, and collided head on with a car being driven by a Mr Ashenden, who was killed, whilst his wife, Mrs Ashenden was seriously injured.
NSW District Court Judge Mark Marien found Masters guilty on two dangerous driving offences and sentenced the defendant to a three year intensive correction order (ICO).
The first charge was dangerous driving causing death, contrary to section 52A(1)(C) of the Crimes Act 1900 (NSW), which carries 10 years inside. The second was one count of dangerous driving causing grievous bodily harm, which falls under section 52A(3)(c) of the Act, with a maximum of 7 years.
The major issue at trial was whether Masters, who was known to suffer schizophrenia, should be issued with the special verdict of “not guilty by reason of mental illness”, in accordance with section 38 of the since revoked Mental Health (Forensic Provisions) Act 1990 (NSW); a provision superseded by section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
At the time of the accident, Masters was driving his car wearing just a shirt and underwear, and he had lacerations on his left wrist, as well as a puncture wound to the left side of his chest, which weren’t consistent with injuries he’d likely have acquired during the crash.
However, despite the testimony of two expert witnesses asserting that the defendant was not in a sound state of mind at the time of the incident, his Honour found that this defence had not been made out, and therefore, Masters was found guilty on both charges.
Appealing soundness of mind
Masters appealed against his convictions to the NSW Court of Criminal Appeal (NSWCCA) on 11 March this year, based on three grounds.
These included that the judge’s interventions during proceedings were excessive, which gave rise to procedural unfairness and a miscarriage of justice, that he’d applied the wrong test in accessing Masters’ state of mind and that the court should determine mental illness at the time of the offence.
The now repealed section 38 provision provided that if it’s found that a person was suffering mental illness at the time they committed a crime, then, as they weren’t responsible for the commission of the offence, a special verdict of not guilty by reason of mental illness should be returned.
In her ruling, NSWCCA Justice Julie Lonergan explained that such a finding is based on a balance of probabilities that acknowledges the offender was aware of the nature of his actions, and may well have known of their unlawfulness, but he didn’t appreciate his actions were morally wrong.
Two eminent forensic psychiatrists, Dr Adam Martin and Dr Jonathon Adams, appeared at trial and determined that the defence was open to Masters, as he suffers from schizophrenia that manifests “in persistent persecutory delusions, thought disorder, disorganised behaviour and distress”.
In relation to the first ground, Justice Lonergan said that while Judge Marien’s interventions were excessive, this didn’t sway the experts in maintaining their “soundly based opinions” regarding the defendant’s mental illness at the time of the accident.
A misinterpretation of the authority
The 1843 established M’Naughten rules were raised at trial, which state that in establishing an insanity defence, it must be proven that the accused had such a diseased mind that they either didn’t understand the nature of their actions, or if they did, they were unaware they were wrong.
Judge Marien was unconvinced by the psychological evaluations that Dr Adams and Dr Martin supplied in reports submitted, so his Honour called the two forensic scientists into the courtroom to provide firsthand testimony to support their evaluations.
Adams, acting on behalf of the defence, provided evidence of Masters’ delusional behaviour around the time preceding the accident that suggested he was mentally ill. And the Crown’s expert, Martin said he agreed with Adams, but would argue the point more strongly.
In terms of the second ground of appeal, that Judge Marien had misapplied the second leg of the M’Naughten test, as he interpreted that the lack of understanding that an offender had in undertaking actions that were morally wrong to mean that this had to be proven on balance.
However, his Honour then raised the point that both expert witnesses had suggested that Masters maintained a modicum of capacity to understand the wrongfulness of his acts, and if that was the case, then the defence was not established.
“This was an error,” Justice Lonergan made clear. Her Honour then goes on to explain that the M’Naughten test does not require the accused to be disabled or incapacitated, but rather they’re so disturbed, they cannot make calm decisions about the moral quality of their actions.
“This involves a lack of ability to reason with moderate composure, not a total incapacity to recognise that the conduct is wrong,” her Honour explained in evaluating the trial judge’s misguided interpretation of the M’Naughten rules, and she added that this ground “should be upheld”.
Evolving mental health laws
The third ground claimed that the court should now determine that Masters was mentally ill in line with section 7(4) of the Criminal Appeal Act 1912 (NSW), which states that if “a special verdict of act proven but not criminally responsible” is found then the original ruling should be quashed.
“Section 7(4) does not require error to be established on appeal, but rather directs this court to consider the evidence in order to determine afresh whether the appellant has met the onus of establishing that he was mentally ill at the time of the offence,” the justice explained.
Her Honour mentioned that despite section 38 being contained in an Act, which has since been replaced by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) in March 2021, the laws that applied on commission of the offence continue to apply to the case.
Part 3 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 contains sections setting how the special verdict framework applies to criminal cases today.
Justice Lonergan added that if in making its final determination in this case, the NSWCCA finds the special verdict of “not guilty by reason of mental illness”, it should be framed under the current terminology, which asserts “act proven but not criminally responsible”.
Not criminally responsible
“It was the schizophrenia and its constellation of symptoms that he was suffering that were affecting the appellant at the time he drove into Mr Ashenden’s car,” Justice Lonergan found. “Those symptoms were persecutory delusions, thought disorder, disorganised behaviour and distress.”
“Accordingly, he was mentally ill, so as not to be responsible, according to law, for his action at the time of the offences and so at the trial… there should have been a special verdict of not guilty by reason of mental illness,” she determined.
In finding this, Justice Lonergan ordered on 24 October that Masters’ convictions be quashed, that the special verdict be framed as “acts proven but not criminally responsible”, and that Masters be discharged as long as he complies with a community treatment order and takes his medication.
NSWCCA Acting Justice Paul Brereton and Justice Natalia Adams agreed with the orders of their colleague.
