Citation: Regina v Kinloch [2004] NSWSC 998
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 29 October 2004
Judge(s): M W Campbell AJ
Background
The accused was charged with the murder of a woman he encountered in a public park at North Ryde on 28 August 2003. The evidence established that he killed her by compression of the throat and partially concealed her body near a creek. Nothing was stolen and the victim was not otherwise harmed.
Later that same day, the accused drove a stolen car into a tree at high speed. He was hospitalised and, before any link to the death was established, was scheduled as mentally ill under the Mental Health Act 1990. His fingerprints on a bag placed over the victim's face subsequently led police to him at the hospital.
The accused had a documented history of psychiatric difficulties. At the time of the offence and his hospitalisation, he was exhibiting florid psychotic symptoms, including delusional beliefs that God and the devil were controlling his actions, and that his past conduct had caused international catastrophes such as September 11 and the Bali bombing.
Legal Issues
- Whether the prosecution had established, beyond reasonable doubt, all elements required for a conviction for murder.
- Whether the accused was not guilty by reason of mental illness, in accordance with the M'Naghten rules.
- Alternatively, whether the accused was guilty of manslaughter by reason of substantial impairment by abnormality of mind.
Decision
Campbell AJ, sitting without a jury pursuant to the accused's election under s 132 of the Criminal Procedure Act 1986, was satisfied beyond reasonable doubt that the accused had committed the acts constituting murder. Defence counsel did not contest this aspect of the case.
The sole disputed question was which of two defences applied: mental illness or substantial impairment. Initially, the Crown's forensic psychiatrist had been expected to support the substantial impairment alternative, while two defence psychiatrists were expected to support mental illness. However, after receiving additional material, all three psychiatrists gave evidence supporting the defence of mental illness.
Campbell AJ applied the established principle that a judge acting without a jury should decline to act on psychiatric evidence only where other evidence outweighs it, where the facts differ from those on which the psychiatrists proceeded, or where the psychiatrists' reasoning does not support their conclusions. The court found none of those circumstances applied here.
Being satisfied on the balance of probabilities that the defence of mental illness had been made out, the court returned a special verdict of not guilty by reason of mental illness. It was therefore unnecessary to consider the alternative defence of substantial impairment.
Orders Made
- A special verdict of not guilty by reason of mental illness was entered.
- The accused was ordered to be detained in strict custody at Long Bay Prison Hospital, or at any other place directed by the Mental Health Review Tribunal, until released by due process of law, pursuant to s 39 of the Mental Health (Criminal Procedure) Act 1990.
Key Takeaways
- The Supreme Court confirmed that, in a judge-alone trial, the court will decline to act on unanimous psychiatric evidence only in limited circumstances: where other evidence outweighs it, where the factual basis differs from that relied upon by the psychiatrists, or where the reasoning does not support the conclusions reached.
- Unanimity among all forensic psychiatrists called by both Crown and defence carried significant weight; in this case, the court found no basis to depart from their shared conclusion.
- A special verdict of not guilty by reason of mental illness does not result in unconditional release. Under s 39 of the Mental Health (Criminal Procedure) Act 1990, it mandates detention in strict custody subject to ongoing review by the Mental Health Review Tribunal.
- Where the defence of mental illness succeeds, the court is not required to consider the alternative defence of substantial impairment by abnormality of mind.
- The case illustrates the operation of the M'Naghten-derived mental illness defence in NSW, with the onus on the accused to establish the defence on the balance of probabilities, as reflected in the key authorities applied.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Mental Health Act 1990 (NSW)
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 37, 38, 39
Cases:
- Fleming v R (1998) 197 CLR 250
- Hawkins v The Queen [1994] 179 CLR 500
- Regina v M'Naghten (1843) 8 ER 718
- Rex v Porter (1933) 55 CLR 182
- Rex v Sodeman (1936) 55 CLR 192