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Supreme Court 5 November 1999

R v Maxwell

[1999] NSWSC 1085

HomicideFirearms & weaponsDomestic & family violence
CRIMINAL LAW MURDER DIMINISHED RESPONSIBILITY TRIAL

Citation: R v Maxwell [1999] NSWSC 1085
Court: Supreme Court of New South Wales (Common Law Division)
Date: 5 November 1999
Judge: Michael Grove J

Background

The accused was charged with the murder of his estranged wife, who died on 24 August 1992 from a gunshot wound inflicted by a sawn-off .22 rifle he was carrying. The accused had positioned himself near a childcare centre, in breach of a restraining order, and confronted the deceased as she returned to her car after dropping off their son. Three shots were fired; one proved fatal.

The accused pleaded not guilty to murder but guilty to manslaughter. The Crown declined to accept that plea and the matter proceeded to trial. This was not the first time the case had been before the courts: it had travelled through the High Court (reported at 184 CLR 501) and a previous murder conviction by Bruce J had been set aside by the Court of Criminal Appeal in December 1998.

The retrial was conducted before Grove J sitting without a jury, pursuant to s 32 of the Criminal Procedure Act 1986. Much of the evidence was led by tender of witness statements and transcripts from the earlier trial, supplemented by fresh psychiatric evidence and brief oral testimony.

  • Whether the accused acted deliberately and with an intention to kill or cause grievous bodily harm, as required to establish murder
  • Whether the accused's claim that the deceased grabbed the weapon, causing it to discharge, was credible
  • Whether the accused was entitled to a partial defence of diminished responsibility under s 23A of the Crimes Act, on the basis that he suffered an abnormality of mind that substantially impaired his mental responsibility

Decision

Grove J rejected the accused's account that the deceased grabbed the weapon and caused it to discharge. A central reason was that the weapon was semi-automatic and required a separate trigger pull for each shot. Three shots were fired, meaning that even accepting some element of unexpected reaction from the deceased, two further trigger pressures were separately applied. The accused also made no mention of any such grabbing to bystanders at the scene, only raising it later with police.

On the question of intention, Grove J was satisfied beyond reasonable doubt that the accused had acted deliberately and with intent to kill or cause grievous bodily harm. He noted the accused's extensive preparations: acquiring the vehicle days earlier, arming himself with a loaded sawn-off rifle with the safety off, wearing a disguise over his work clothes, and lying in wait for the deceased in breach of a court order.

On diminished responsibility, four psychiatrists gave evidence. Dr Westmore and, latterly, Drs Strum and Jurek supported a diagnosis of severe personality disorder amounting to an abnormality of mind. Dr Milton, whose opinion remained consistent throughout the proceedings, did not. Grove J found that the accused had not discharged the onus of proving the partial defence on the balance of probabilities. The late emergence of support for the severe diagnosis from some psychiatrists, together with the absence of any such indication in earlier consultations (temporally closer to the offence), undermined the persuasiveness of that view.

Grove J added that even if an abnormality of mind had been established, he would not have assessed any resulting impairment of mental responsibility as substantial. Taking into account all the preparations made by the accused, any impairment would not have warranted reduction of the offence to manslaughter.

Orders Made

  • The accused was found guilty of murder as indicted; verdict and judgment of conviction entered accordingly.

Key Takeaways

  • A diminished responsibility defence under s 23A of the Crimes Act requires the accused to prove, on the balance of probabilities, both the existence of a relevant abnormality of mind and that it substantially impaired mental responsibility; neither element was made out here.
  • Where psychiatric opinion in support of a diagnosis emerges late and is absent from earlier consultations conducted closer to the relevant events, a court may treat that as undermining the cogency of the diagnosis.
  • Detailed pre-offence preparations, including obtaining a weapon, disabling its safety, wearing a disguise, and lying in wait in breach of a court order, were treated as significant circumstances weighing against a finding of substantial impairment.
  • The Supreme Court took the unusual step of urging the legislature to reconsider permitting murder trials to proceed without a jury under s 32 of the Criminal Procedure Act 1986, expressing concern that a citizen could face the maximum penalty based solely on judicial fact-finding conducted largely on documentary evidence.
  • Under the semi-automatic mechanics of the weapon used, the firing of three separate shots required three separate trigger applications, a finding that directly defeated the accused's claim that a single reactive grab by the deceased caused the discharge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 23, 23A (murder and diminished responsibility)
- Criminal Procedure Act 1986 (NSW), s 32 (trial without jury)
- Evidence Act 1995 (NSW), s 190 (waiver of rules of evidence)

Cases:
- Ryan v The Queen (1967) 121 CLR 205
- R v Nguyen (Unreported, Court of Criminal Appeal, 20 March 1998)
- Maxwell v The Queen (1996) 184 CLR 501 (prior High Court proceedings in the same matter)