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Supreme Court 22 August 2002

R v GJF, R v GFF, R v KHF

[2002] NSWSC 737

HomicideDomestic & family violence
CRIMINAL LAW MURDER WHETHER ACCUSED GUILTY DEFENCE OF MENTAL ILLNESS

Citation: R v GJF, R v GFF, R v KHF [2002] NSWSC 737
Court: Supreme Court of New South Wales (Common Law Division)
Date: 22 August 2002
Judge(s): Barr J

Background

Three accused family members, referred to by their initials to protect their identities, were each charged with the murder of a woman (referred to as FEF) who was killed on 16 October 2001 at Glossodia in NSW. FEF was the wife of one accused (GFF) and the mother of the other two (GJF and KHF). The family had a long history of domestic violence, and FEF had obtained an apprehended violence order against GFF after separating from him in late 2000.

On the morning of the killing, FEF returned home from a night shift at Westmead Hospital and fled to a neighbour's house after apparently sensing danger. GJF broke into the neighbour's house armed with two large knives. FEF fled into the street, where she was pursued and attacked. She died from a deep stab wound to the chest and a wound caused by surgical needle holders being driven through her nostril into her brain. GFF had signed himself out of a psychiatric hospital against medical advice just days before the killing, and there was evidence of significant mental illness and heavy cannabis use across the family.

All three accused elected trial by judge alone under s 32 of the Criminal Procedure Act. Barr J satisfied himself that each accused had the mental capacity to make that election before proceeding.

  • Whether GFF and GJF, having concededly killed FEF with intent to kill, were nonetheless not guilty of murder by reason of mental illness
  • Whether KHF was a party to the murder by agreement, or as an aider and abettor, and whether she might alternatively be guilty of manslaughter
  • Whether KHF also had a valid defence of mental illness, so as to be not guilty of any offence

Decision

Counsel for GFF and GJF conceded that each had killed FEF with intent to kill, satisfying the elements of murder. Both accused relied solely on the defence of mental illness, contending that their psychiatric conditions at the time of the killing meant they were not legally responsible for their actions. Barr J accepted this defence in respect of both men.

In relation to KHF, the Crown alleged she participated in the killing either as a party to a joint agreement to kill or as an aider and abettor. Her counsel conceded she was present but disputed that she acted pursuant to any such agreement or with the requisite intent to assist. The defence accepted that KHF's conduct, holding the deceased's legs while knowing GJF had a knife, might support a manslaughter finding. However, the defence argued that KHF too was mentally ill at the relevant time and therefore not legally responsible.

Barr J found the mental illness defence established in respect of all three accused. Each accused was found not guilty of murder by reason of mental illness. The judgment noted that such a verdict does not result in release: accused persons found not guilty on this basis are detained as forensic patients, subject to oversight by the Mental Health Review Tribunal, and cannot be released unless the Tribunal is satisfied that doing so would not seriously endanger the safety of the accused or any member of the public.

Orders Made

  • GFF found not guilty of murder by reason of mental illness; ordered to be detained in the psychiatric ward at Long Bay Correctional Centre Hospital, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law
  • GJF found not guilty of murder by reason of mental illness; ordered to be detained in the psychiatric ward at Long Bay Correctional Centre Hospital, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law
  • KHF found not guilty of murder by reason of mental illness; ordered to be detained at the Yasmar Juvenile Justice Centre, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law

Key Takeaways

  • A verdict of not guilty by reason of mental illness does not result in an accused's freedom. Under the applicable NSW framework, a person so found is detained as a forensic patient and remains in custody until the Mental Health Review Tribunal is satisfied that release would not seriously endanger public or personal safety.
  • The mental illness defence was available and accepted even where the accused's physical acts and intent to kill were not in dispute, with the defence operating to negate legal responsibility rather than factual culpability.
  • Where an accused is present at a killing and participates in physical acts contributing to a death, a court may consider not only murder (on a joint enterprise or aiding and abetting basis) but also the lesser alternative of manslaughter, before the mental illness defence is applied.
  • All three accused elected trial by judge alone under s 32 of the Criminal Procedure Act, and the court conducted a preliminary inquiry into each accused's mental capacity to make that election before directing that proceedings continue without a jury.
  • Forensic patients detained following a mental illness verdict may be released conditionally, subject to conditions such as residing at a specified place and taking prescribed medication, with the Department of Health maintaining oversight and any breach capable of leading to re-detention.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act (NSW), s 32 (election for trial by judge alone)
- Mental Health (Criminal Procedure) Act (NSW) (provisions governing forensic patients and the Mental Health Review Tribunal, referenced throughout)

Cases: No cases were cited in the portions of the judgment provided.