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Supreme Court 27 March 2002

Regina v Southon

[2002] NSWSC 255

Assault & violenceHomicide
CRIMINAL LAW DEFENCE OF MENTAL ILLNESS SELF DEFENCE

Citation: Regina v Southon [2002] NSWSC 255
Court: Supreme Court of New South Wales (Criminal Division)
Date: 27 March 2002
Judge(s): Kirby J

Background

The accused was an involuntary psychiatric patient admitted to the Mandala Psychiatric Clinic at Gosford Hospital in May 2001. In the days before the incident, nursing staff and treating psychiatrists had observed him to be psychotic, delusional, and agitated. On the evening of 16 May 2001, he was asked to share a room with another patient, the deceased, to facilitate overnight bed management at the clinic.

Approximately fifteen minutes after the deceased moved into the shared room, nursing staff heard a series of forceful blows. They found the accused kneeling over the deceased, who was unconscious. The accused had used his plaster forearm cast as a weapon, striking the deceased and causing severe head injuries. The deceased was transferred to intensive care but never regained consciousness. He died on 23 May 2001 after life support was withdrawn.

The accused was charged with murder. He pleaded not guilty, elected to be tried by judge alone, and raised two defences: mental illness and self-defence. The accused had admitted the assault as a formal matter of evidence.

  • Whether the accused satisfied the test for the defence of mental illness, such that he did not know the quality of his act or did not know that what he was doing was wrong
  • Whether the Crown had excluded beyond reasonable doubt the reasonable possibility that the accused acted in self-defence, under the framework introduced by the Crimes Amendment (Self Defence) Act 2001
  • Whether, given the finding on mental illness, a formal verdict and detention order under the Mental Health (Criminal Procedure) Act 1990 was appropriate

Decision

Kirby J considered the defence of mental illness by reference to the established test from R v M'Naghten (1843) and R v Porter (1935). The court examined extensive psychiatric evidence about the accused's condition at the time of the assault. The accused had been formally assessed as psychotic and had been made an involuntary patient only hours before the incident. The expert evidence supported the conclusion that the accused was suffering from a serious mental illness that affected his capacity to understand his actions or appreciate that they were wrong.

On self-defence, Kirby J noted the Crown's obligation under the Crimes Amendment (Self Defence) Act 2001 to exclude beyond reasonable doubt the reasonable possibility that the accused acted in self-defence. While the accused had told police the deceased "came at" him before he struck, the court ultimately did not need to resolve this definitively because the mental illness defence was made out. The court found the accused not guilty by reason of mental illness.

The court acknowledged the profound human tragedy the case represented for both the family of the deceased and the family of the accused. Kirby J also made a point of recognising the exceptional and selfless efforts of the hospital nursing staff, particularly those who attempted to revive the deceased, describing their conduct as heroic.

Orders Made

  • The accused was found not guilty by reason of mental illness.
  • The accused was ordered to be detained at Long Bay Prison Hospital, and thereafter in such other places as determined according to law, until released by due process of law.
  • The court explained that the Mental Health Review Tribunal would periodically review the accused's detention and could recommend release if satisfied that the safety of the accused or any member of the public would not be seriously endangered.

Key Takeaways

  • The Supreme Court applied the long-standing M'Naghten test, as articulated in R v Porter, to assess whether the accused understood the quality of his act or knew it was wrong at the time of the offence.
  • A verdict of not guilty by reason of mental illness does not result in a conviction, which meant that a victim impact statement under the Crimes (Sentencing Procedure) Act 1999 could not formally be received by the court.
  • Under the Crimes Amendment (Self Defence) Act 2001, the evidentiary burden in a self-defence claim lies with the Crown to exclude beyond reasonable doubt the reasonable possibility that the accused acted in self-defence.
  • Where a mental illness defence succeeds, the court must order detention under the Mental Health (Criminal Procedure) Act 1990, with ongoing review by the Mental Health Review Tribunal as the mechanism for assessing future release.
  • The fact that a patient had been made involuntary only hours before a serious incident, with contemporaneous clinical documentation of psychosis, formed a significant part of the evidentiary foundation for the mental illness finding.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW)
- Crimes Act 1900 (NSW)
- Mental Health Act 1990 (NSW)
- Mental Health (Criminal Procedure) Act 1990 (NSW)
- Evidence Act 1995 (NSW)
- Crimes Amendment (Self Defence) Act 2001 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v M'Naghten (1843) 8 ER 718
- R v Porter (1935) 55 CLR 182