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Supreme Court 7 February 2003

REGINA v. SORRELL

[2003] NSWSC 30

Homicide
CRIMINAL LAW MURDER JUDGE ONLY TRIAL MENTAL ILLNESS SPECIAL VERDICT ORDER FOR DETENTION

Citation: Regina v Sorrell [2003] NSWSC 30
Court: Supreme Court of New South Wales (Criminal Division)
Date: 7 February 2003
Judge(s): Greg James J

Background

The accused was charged with the murder of Michael Furlong, alleged to have occurred on 3 June 2002 at Smithfield, New South Wales. The Crown case was that the accused followed the deceased and his brother from an electrical retailer, approached them at their vehicle, spoke briefly to the deceased, and then stabbed him with a knife. The accused was apprehended in the early hours of the following morning, asleep in his vehicle and in possession of the deceased's wallet.

The accused pleaded not guilty and elected for trial by judge alone. Through his counsel, and confirmed personally in the dock, the accused admitted all elements of the offence except mental illness. The sole issue for determination was whether, at the time of the killing, the accused was suffering from a mental illness sufficient to relieve him of criminal responsibility in law.

The Crown, through the Director of Public Prosecutions, had made full inquiries including expert examination, and did not dispute the genuineness of the accused's condition.

  • Whether the accused was suffering from a mental illness at the time of the killing, within the meaning of the Mental Health (Criminal Procedure) Act 1990, so as to warrant a special verdict of not guilty by reason of mental illness.
  • Whether all other elements of murder had been established beyond reasonable doubt.
  • Whether any partial defence (such as provocation) was available so as to reduce the offence to manslaughter.

Decision

Greg James J was satisfied, on the admitted facts and the documentary evidence tendered by consent, that absent mental illness all elements of murder were established beyond reasonable doubt. The accused had intended to kill the deceased at the time of the act. No partial defence, including provocation, was made out on the materials.

Three forensic psychiatrists, Dr Olav Neilssen, Dr Rosalie Wilcox, and Dr Bruce Westmore, each concluded unanimously that the accused suffered from paranoid schizophrenia. The accused had a documented history of the condition, including prior serious offending underpinned by the same illness and periods of institutional confinement. His Honour found the conclusion that the accused was suffering from a mental illness within the meaning of sections 38 and 39 of the Mental Health (Criminal Procedure) Act 1990 was, on this evidence, inevitable.

His Honour entered the special verdict of not guilty by reason of mental illness. He noted that the law, while declining to punish those who genuinely lack the mental capacity required for criminal responsibility, provides instead for their indefinite detention under strict conditions. Release requires the Mental Health Review Tribunal to be satisfied as to the safety of the accused and any member of the public, and the relevant legislative requirements must be met before any release can occur. The provisions apply for the remainder of the person's life.

His Honour acknowledged, in terms that were plainly directed to those present in the public gallery, that the outcome was deeply tragic for the families of both the deceased and the accused, and that the court was not insensitive to that grief.

Orders Made

  • The accused was found not guilty by reason of mental illness (special verdict under the Mental Health (Criminal Procedure) Act 1990).
  • The accused was ordered to be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre, or such other place as the Mental Health Review Tribunal may determine, unless and until released by due process of law.

Key Takeaways

  • A special verdict of not guilty by reason of mental illness does not result in acquittal and freedom: it triggers mandatory detention under the Mental Health (Criminal Procedure) Act 1990, subject to ongoing review by the Mental Health Review Tribunal for the remainder of the person's life.
  • Unanimous expert psychiatric evidence from three respected forensic psychiatrists, combined with an admitted factual basis and no dispute from the Crown, was sufficient to make a finding of mental illness inevitable on these facts.
  • Where the accused admitted all elements of the offence other than mental illness, the judge was required to be satisfied of those elements to the criminal standard before proceeding to the mental illness question. The court confirmed that all elements of murder, including intent to kill, were established beyond reasonable doubt.
  • Partial defences such as provocation must also be assessed, and their absence confirmed, even where mental illness is the sole live issue at trial.
  • In a judge-alone trial under the Criminal Procedure Act 1986, the judge must state the principles of law applied, findings of fact relied upon, and must give themselves any warning that would have been required for a jury, consistent with the High Court's approach in Fleming v The Queen (1998) 158 ALR 379.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), particularly ss 16 and 17
- Mental Health (Criminal Procedure) Act 1990 (NSW), particularly ss 38 and 39
- Crimes Act 1900 (NSW)
- Mental Health Act 1990 (NSW)

Cases
- Fleming v The Queen (1998) 158 ALR 379 (High Court)
- Zecevic v DPP (1987) 162 CLR 645 (High Court)
- M'Naghten's Case (1843) 8 ER 718
- R v Porter (1936) 55 CLR 182 (High Court)