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Supreme Court 4 June 2002

R .v. GIFFORD

[2002] NSWSC 498

Homicide
CRIMINAL LAW

Citation: R v Gifford [2002] NSWSC 498
Court: Supreme Court of New South Wales (Common Law Division)
Date: 4 June 2002
Judge(s): Barr J

Background

The accused was charged with the murder of her young daughter at a rural property near Drake in northern New South Wales on 18 July 2000. The child was found strangled approximately one hundred metres from the house where the accused had been staying. Physical evidence, including DNA on the ligature and blood on the accused's clothing, formed part of a strong circumstantial Crown case.

The accused elected for trial by judge alone, to which the Crown consented. She did not give evidence, a decision attributed entirely to her amnesia regarding the events of that morning. No inference was drawn against her from her silence.

The sole substantive issue before the court was not whether the accused caused the death, but whether she was legally responsible for her actions. The accused bore the onus of proving, on the balance of probabilities, that she was mentally ill at the time of the act.

  • Whether the Crown had proved beyond reasonable doubt that the accused performed the act causing the child's death
  • Whether the accused was not guilty by reason of mental illness under the McNaghten test, as applied in Australian law
  • What detention and oversight arrangements applied upon a finding of not guilty by reason of mental illness under the Mental Health Act 1990 (NSW)

Decision

Barr J was satisfied beyond reasonable doubt, on the circumstantial evidence, that the accused strangled the child on the morning of 18 July 2000 with intent to kill. The judge noted that the accused was the last person with the child, that physical evidence connected her to the killing, and that her subsequent conduct, including attempting to dispose of clothing and providing false accounts of the child's whereabouts, was consistent with guilt.

The court then turned to the mental illness defence. The applicable test, originating in R v McNaghten (1843) and developed in Australian jurisprudence, asks whether the accused was suffering from a defect of reason arising from a disease of the mind such that she either did not know the nature and quality of her act, or did not know that it was wrong. As applied in Australia, the test also encompasses whether the accused was able to appreciate the wrongness of the act, including whether disordered thinking prevented her from reasoning about it with moderate sense and composure.

The judgment refers to psychiatric evidence as the basis for the finding that the accused satisfied this test at the time of the killing. Barr J also noted this was a reason why trial by judge alone was appropriate, given the nature and complexity of the psychiatric material. On that evidence, the court was satisfied on the balance of probabilities that the accused was mentally ill within the legal definition and was therefore not legally responsible for her actions.

Upon making the finding of not guilty by reason of mental illness, the court explained the operation of the Mental Health Act 1990 (NSW). The accused would be detained as a forensic patient, subject to periodic review by the Mental Health Review Tribunal. Release, whether conditional or unconditional, required the Tribunal to be satisfied that the safety of the accused or any member of the public would not be seriously endangered. Any conditional release could be revoked upon breach, and the accused would only cease to be a forensic patient upon unconditional release ordered by the Governor-in-Council.

Orders Made

  • The accused was found not guilty of murder by reason of mental illness.
  • The accused was ordered to be detained at the Bunya Unit at Cumberland Hospital, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law.

Key Takeaways

  • The Supreme Court applied the McNaghten test in its Australian form, which asks not only whether the accused knew the nature of her act, but whether she was capable of appreciating its wrongness and reasoning about it with moderate sense and composure.
  • A finding of not guilty by reason of mental illness does not result in unconditional freedom. Under the Mental Health Act 1990 (NSW), the accused is detained as a forensic patient subject to a structured regime of periodic review and oversight by the Mental Health Review Tribunal.
  • Release from forensic detention requires the Tribunal to be affirmatively satisfied that neither the accused's safety nor the safety of any member of the public would be seriously endangered, with any release remaining subject to conditions and ministerial and gubernatorial approval.
  • Where an accused cannot remember the relevant events and elects not to give evidence, no adverse inference flows from that silence provided the amnesia explanation is accepted; nor can the silence be used to fill gaps in the Crown's circumstantial case.
  • Trial by judge alone was regarded as appropriate here in light of the complex psychiatric evidence central to the mental illness defence, a consideration expressly noted by Barr J.

Legislation and Cases Referenced

Legislation:
- Mental Health Act 1990 (NSW)

Cases:
- R v McNaghten (1843) (the foundational statement of the mental illness defence in common law)