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Supreme Court 12 October 2000

R v Mikiewicz

[2000] NSWSC 988

Homicide
MURDER JUDGE ALONE TRIAL FITNESS TO PLEAD PSYCHIATRIC EVIDENCE MENTAL HEALTH REVIEW TRIBUNAL

Citation: R v Mikiewicz [2000] NSWSC 988
Court: Supreme Court of New South Wales
Date: 12 October 2000
Judge(s): Dowd J

Background

The accused, a Polish national, was charged with the murder of his housemate in Windale, a suburb of Newcastle, on or about 24 May 1999. The deceased, a 40-year-old accountant, had taken the accused in as a boarder in mid-May 1999. The deceased's body was discovered on the front steps of a neighbouring property the following morning, with multiple stab wounds to his back and neck consistent with a frenzied attack originating inside the kitchen of the shared house.

Following the killing, the accused used a series of assumed identities and attempted to flee Australia via Melbourne on a fraudulently obtained passport. He was arrested outside the Polish Consulate in Melbourne on 23 June 1999 and returned to New South Wales.

The accused elected to be tried by judge alone and pleaded not guilty on the ground of mental illness. A prior judicial determination had found him fit for trial, and his counsel confirmed at hearing that nothing had arisen to disturb that finding.

  • Whether the accused was fit to stand trial
  • Whether the Crown had proved beyond reasonable doubt that the accused committed the act causing the deceased's death, with the requisite intent
  • Whether the defence of not guilty on the ground of mental illness was established on the balance of probabilities
  • The appropriate order to be made following a special verdict of not guilty on the ground of mental illness, under the Mental Health (Criminal Procedure) Act 1990

Decision

Dowd J was satisfied the accused had properly elected a judge-alone trial under s 32 of the Criminal Procedure Act 1986, having received advice from both his barrister and solicitor and with the consent of the Director of Public Prosecutions. Fitness to plead was not in dispute at trial.

The Crown tendered statements, crime scene evidence, a post-mortem report, fingerprint evidence, and an electronically recorded interview. That evidence, together with oral psychiatric evidence from Dr Bruce Westmore, was admitted. The deceased's father gave evidence that on 24 May 1999 the deceased had told him he intended to ask the accused to leave the premises. Homicide was conceded by the accused's counsel.

Dowd J found beyond reasonable doubt that the accused committed the act causing the deceased's death, and that the act was done with the intention to cause grievous bodily harm. His Honour then found the defence of not guilty on the ground of mental illness established on the balance of probabilities, guided by the series of Supreme Court decisions referred to in the judgment.

Having returned the special verdict, Dowd J made an order under s 39 of the Mental Health (Criminal Procedure) Act 1990 for the accused to be detained in strict custody. His Honour noted that any future release would be governed by the processes of the Mental Health Review Tribunal, which could impose conditions such as requirements around residence and medication, and that release would only occur if the Tribunal were satisfied it was appropriate.

Orders Made

  • The accused was found not guilty of murder on the ground of mental illness.
  • Under s 39 of the Mental Health (Criminal Procedure) Act 1990, the accused was ordered to be detained in strict custody at the prison hospital at Long Bay, and at such other places as determined according to law, until released by the processes of law.

Key Takeaways

  • A special verdict of not guilty on the ground of mental illness requires the defence to establish mental illness on the balance of probabilities, even where the Crown has proved beyond reasonable doubt that the accused committed the act with the requisite intent.
  • Under s 39 of the Mental Health (Criminal Procedure) Act 1990, a court returning such a special verdict must order detention in strict custody, with any future release governed by the Mental Health Review Tribunal rather than by the court itself.
  • The Tribunal may impose conditions on release, including requirements relating to place of residence and medication, and release becomes unconditional only in defined circumstances.
  • A prior finding of fitness to plead remained operative at trial; the accused's counsel confirmed nothing had arisen to alter that earlier determination.
  • In reaching its conclusion, the Supreme Court applied the approach taken in a series of contemporaneous Supreme Court decisions on the mental illness defence, including R v Gillett, R v Maxwell, R v Gabranovic, R v Noyes, and R v Fiori.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 32
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 38, 39
- Mental Health Act 1900 (NSW)

Cases:
- R v Gillett [1999] NSWSC 115
- R v Maxwell [1999] NSWSC 281
- R v Gabranovic [1999] NSWSC 205
- R v Noyes [1999] NSWSC 397
- R v Fiori [2000] NSWSC 73