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Supreme Court 15 August 2002

REGINA v. SHEW

[2002] NSWSC 724

Homicide
CRIMINAL LAW MURDER JUDGE ONLY TRIAL MENTAL ILLNESS DEFENCE.

Citation: Regina v Shew [2002] NSWSC 724
Court: Supreme Court of New South Wales
Date: 15 August 2002
Judge(s): Greg James J

Background

The accused stood charged with three counts of murder following the deaths of his parents and his brother. The trial proceeded before a judge alone, without a jury, pursuant to the Criminal Procedure Act 1986.

Both the Crown and the defence accepted that the accused had performed the acts causing the deaths and that, at the time, he had the intention to kill. The sole question for the court was whether the accused was exempt from criminal responsibility by reason of mental illness at the time of the killings.

The accused had suffered from schizophrenia from his mid-teenage years. In the days leading up to the deaths, witnesses observed behaviour consistent with acute psychiatric symptoms, including threats, strange communications, and statements that plainly indicated his illness had resumed. After the killings, the accused made references to being "Inca" from the Amazon or Colombia during police questioning, conduct the court described as sufficiently bizarre to permit even a lay identification of mental illness.

  • Whether the accused was suffering from a mental illness at the time of the acts causing death, sufficient to establish the special verdict of not guilty by reason of mental illness under the Mental Health (Criminal Procedure) Act 1990
  • Whether, because of that mental illness, the accused was deprived of the capacity to know that his actions were wrong (applying the legal test derived from M'Naghten (1843) and Porter (1936))

Decision

Three psychiatrists examined the accused and provided consistent opinions. Dr Westmore, retained by the Crown, concluded that the accused was acutely mentally ill at the time of the deaths, suffering from command hallucinations directing him to kill, and that his illness had totally deprived him of the knowledge and understanding that he should not commit the acts. Dr Allnutt concluded that, while the accused understood the nature and quality of his acts, he did not understand that those acts were wrong, his judgment having been so substantially impaired by delusions and auditory hallucinations that he felt irrationally justified in acting as he did. Dr Nielssen similarly concluded that the accused suffered from chronic, treatment-resistant schizophrenia, that it produced a defect of reason, and that it deprived him of the understanding that his actions were wrong and of any ability to reason with composure about them.

The court accepted this uncontested body of expert evidence. It found, beyond reasonable doubt, that the accused had the intention to kill at the relevant time and that he caused the deaths. However, applying the legal test for mental illness, the court concluded that the accused was, at the time of the acts, suffering from mental illness so as not to be responsible for his actions in law. This engaged the mandatory consequence of a special verdict and a detention order under the Mental Health (Criminal Procedure) Act 1990.

The court noted that, upon such a finding, the accused would not simply be released. Rather, the Mental Health Review Tribunal is required to review the case at least once every six months, and the accused could only be released if the Tribunal were satisfied that neither his own safety nor the safety of any member of the public would be seriously endangered. Any release would ultimately require advice to the Governor, and could be made subject to conditions.

Orders Made

  • On each count of murder in the indictment, the accused was found not guilty by reason of mental illness.
  • The accused was ordered to be detained at Long Bay Prison Hospital, or such other place as may from time to time be prescribed by due process of law, until released by due process of law.

Key Takeaways

  • The Supreme Court applied the mental illness defence as formulated in M'Naghten (1843) 8 ER 718 and Porter (1936) 55 CLR 182, focusing on whether the accused was deprived of the capacity to know that his actions were wrong at the time they were committed.
  • Consistent, uncontested psychiatric evidence from three experts, including the Crown's own psychiatrist, established that the accused's treatment-resistant schizophrenia satisfied the legal test for the defence of mental illness.
  • A finding of not guilty by reason of mental illness does not result in unconditional release. Under the Mental Health (Criminal Procedure) Act 1990, the court is required to order detention in strict custody, with the Mental Health Review Tribunal conducting mandatory reviews at least every six months.
  • Release from such detention requires a finding by the Tribunal that neither the accused nor any member of the public would be seriously endangered, followed by a recommendation through the Department of Health to the Governor.
  • Where both the Crown and defence agree on the facts and the psychiatric evidence points uniformly to one conclusion, the judge-alone trial process can resolve a mental illness defence without contested argument, though the court must still be independently satisfied of the legal and factual elements.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW)
- Mental Health (Criminal Procedure) Act 1990 (NSW)

Cases
- M'Naghten (1843) 8 ER 718
- Porter (1936) 55 CLR 182