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Supreme Court 18 February 2005

R v Shan Shan Xu [No 2]

[2005] NSWSC 70

Homicide
CRIMINAL LAW JUDGE ALONE TRIAL ACCUSED NO LONGER IN CUSTODY WHETHER SHOULD RETURN TO CUSTODY

Citation: R v Shan Shan Xu [No 2] [2005] NSWSC 70
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 18 February 2005
Judge(s): Kirby J

Background

The accused, a Chinese-born woman living in Sydney, stood charged with the murder of her four-and-a-half-year-old son, who died on 31 March 2003 at Meadowbank. She had been a single mother with no family support in Australia beyond her own mother, and the evidence painted a picture of increasing social isolation and deteriorating mental health in the months leading up to the child's death.

In early 2003, the accused had been admitted as an involuntary patient to an acute psychiatric unit at St Vincent's Hospital after expressing thoughts of killing both herself and her son. She was diagnosed with psychotic depression and discharged within three days. Despite a management plan requiring weekly medical supervision and follow-up, that supervision did not occur as intended. On the day of the incident, she and the child were alone, her mother having recently moved out of the apartment to recuperate from illness.

The accused pleaded not guilty by reason of mental illness. With the Crown's consent, she elected to be tried by a judge sitting without a jury, pursuant to the Mental Health (Criminal Procedure) Act 1990. By the time the matter came to trial, the accused was no longer in custody, raising the additional question of what order should follow the verdict.

  • Whether the accused satisfied the test for a verdict of not guilty by reason of mental illness, applying the M'Naghten rules, at the time of the child's death
  • Whether, if such a verdict were returned, the accused should be remanded back into custody or released under conditions
  • What conditions, if any, should govern any release under section 39 of the Mental Health (Criminal Procedure) Act 1990

Decision

Kirby J entered a verdict of not guilty by reason of mental illness. The court was satisfied, applying the M'Naghten test (which asks, in essence, whether the accused was suffering from a disease of the mind such that she did not know the nature of her act, or did not know that what she was doing was wrong), that the accused met that standard at the time of her son's death. The psychiatric evidence supported a finding that she was in the grip of a severe psychotic episode.

On the question of what should follow the verdict, the court noted that the accused was not currently in custody. Kirby J considered the accused's circumstances, including her ongoing psychiatric treatment, her living arrangements with her mother, and the absence of any continuing risk indicators that would necessitate return to a custodial setting.

Rather than ordering that she be detained, the court exercised its discretion under section 39 of the Mental Health (Criminal Procedure) Act 1990 to release the accused into the community subject to a detailed set of conditions. Those conditions were designed to ensure ongoing psychiatric supervision, compliance with treatment, and oversight by the Mental Health Review Tribunal.

Orders Made

Under section 39 of the Mental Health (Criminal Procedure) Act 1990, Kirby J ordered release from custody subject to the following conditions:

  • Accept ongoing treatment from the nominated treating psychiatrist, or such other psychiatrist as approved by the Mental Health Review Tribunal
  • Reside with her mother at the specified Pitt Street, Sydney address, or any other residence approved by the Tribunal
  • Accept a Case Manager appointed by Sydney South Eastern Health Services, and attend or accept home visits with such regularity as the Case Manager determines
  • Attend upon her treating psychiatrist with such regularity as the treating psychiatrist determines
  • Accept medication prescribed from time to time by the treating psychiatrist
  • Undergo such treatment as the treating psychiatrist recommends, including hospitalisation if recommended
  • Submit to examination and review by an independent forensic psychiatrist appointed by the Tribunal, and authorise treating clinicians to share information with that psychiatrist
  • Attend Mental Health Review Tribunal reviews of her case as notified
  • Keep the Tribunal Registrar notified in writing of her current residential address and telephone number, and notify of any planned or actual change of address
  • Comply with all conditions until the Tribunal approves an alternative form of treatment or supervision, and comply with any order made by the prescribed authority under the Mental Health Act 1990

Key Takeaways

  • The M'Naghten test, applied in New South Wales, requires the court to be satisfied that, at the time of the act, the accused was suffering from a disease of the mind such that she did not know the nature of the act or did not know it was wrong; the court found that standard was met on the evidence here.
  • A verdict of not guilty by reason of mental illness does not automatically result in indefinite detention; under section 39 of the Mental Health (Criminal Procedure) Act 1990, a court may order conditional release into the community where the circumstances support that outcome.
  • Where an accused is not in custody at the time the verdict is delivered, the question of whether to remand back into custody is a live one, and the court resolved it in favour of conditional release based on the accused's treatment history and circumstances.
  • Conditions imposed on release under section 39 can be extensive, encompassing residential requirements, medication compliance, case management, independent forensic review, and ongoing Tribunal oversight, with the Tribunal retaining authority to modify those conditions over time.
  • The judgment reflects the court's role in balancing the protective function of the mental health legislative framework against the circumstances of an individual accused who no longer presented an apparent immediate risk requiring custody.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), particularly section 39
- Mental Health Act 1990 (NSW)

Cases:
- M'Naghten (1843) 10 Cl and Fin 200 [8 ER 718] (the foundational common law test for the defence of mental illness)
- R v Line [2004] NSWSC 1148