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Supreme Court 19 October 2007

R v ROBERTS

[2007] NSWSC 1170

Homicide
CRIMINAL LAW MURDER NOT GUILTY DUE TO MENTAL ILLNESS CONDITIONAL RELEASE MENTAL HEALTH REVIEW TRIBUNAL

Citation: R v Roberts [2007] NSWSC 1170
Court: Supreme Court of New South Wales
Date: 19 October 2007
Judge(s): Fullerton J

Background

The accused was charged with the murder of her five-year-old son, who died on 21 August 2006 from the combined effects of drowning and asphyxia. The accused admitted she held the child under water in a bath at the family home, and that she intended to kill him. Her estranged husband had arrived at the home and discovered her in the bath with their son.

The accused entered a plea of not guilty to murder on the grounds of mental illness. The trial proceeded without a jury, by consent under s 132 of the Criminal Procedure Act 1986. No oral evidence was called, and the proceedings were determined entirely on documentary evidence, principally the reports of three forensic psychiatrists.

The sole question before the court was whether the accused should be acquitted on grounds of mental illness under s 38 of the Mental Health (Criminal Procedure) Act 1990, or alternatively convicted of manslaughter on the basis of substantial impairment under s 23A of the Crimes Act 1900.

  • Whether the accused was suffering from a "disease of the mind" at the time of the offence sufficient to ground the special verdict of not guilty by reason of mental illness under s 38 of the Mental Health (Criminal Procedure) Act 1990.
  • Alternatively, whether the accused's mental state at the time of the offence amounted to an "abnormality of mind" that substantially impaired her responsibility, supporting a verdict of manslaughter under s 23A of the Crimes Act 1900.
  • What conditions, if any, should apply to the accused's release following the special verdict, and what role the Mental Health Review Tribunal should play in ongoing supervision.

Decision

All three forensic psychiatrists, including one retained by the Crown and two by the accused, independently concluded that the accused was suffering from a recurrent major depressive illness of significant severity at the time of the offence. Each considered the illness capable of grounding either the mental illness defence or a finding of substantial impairment, but none was prepared to express a definitive or probabilistic preference between the two verdicts.

Fullerton J accepted the psychiatric evidence and found that, at the time of the offence, the accused's capacity to think rationally was temporarily suspended by reason of mental illness. Her defective reasoning caused her to believe that killing herself and her son was a reasonable response to her grief, and her illness also compromised her capacity to perceive her son as a person in his own right. These findings supported the special verdict rather than the lesser verdict of manslaughter.

The court delivered a verdict of not guilty by reason of mental illness. The Crown did not press for any other outcome. Fullerton J expressed unqualified confidence that the accused posed no threat to the community or to herself, noting the insight she had gained into her actions and the treatment she had received.

Orders Made

  • The accused was acquitted on the special verdict of not guilty by reason of mental illness under s 38 of the Mental Health (Criminal Procedure) Act 1990.
  • The accused was released under s 39 of the Mental Health (Criminal Procedure) Act 1990, subject to conditions agreed between the Crown and the accused's legal representatives.
  • The conditions were ordered to apply strictly until further order or variation by the Mental Health Review Tribunal.

Key Takeaways

  • The Supreme Court confirmed that the distinction between the mental illness defence (s 38 of the Mental Health (Criminal Procedure) Act 1990) and substantial impairment (s 23A of the Crimes Act 1900) turns on the degree of severity of the illness and the specific way it affected the accused's behaviour and reasoning at the time of the offence.
  • Where all forensic psychiatrists agree a mental illness is sufficiently severe to ground either verdict but cannot differentiate between them, the court must undertake its own careful analysis of the accused's reported mental state, corroborated or contradicted by objective evidence.
  • A recurrent major depressive illness, depending on its severity and its effect on the accused's reasoning and moral comprehension, can constitute a "disease of the mind" for the purposes of the mental illness defence.
  • Under s 39 of the Mental Health (Criminal Procedure) Act 1990, a special verdict does not automatically result in detention; conditional release is available where the evidence supports it, subject to ongoing review by the Mental Health Review Tribunal.
  • The Mental Health Review Tribunal is charged with balancing competing interests, including the individual's right to liberty and treatment against the community's right to safety, when reviewing the progress of persons found not guilty by reason of mental illness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment)
- Criminal Procedure Act 1986 (NSW), s 132 (trial without jury)
- Evidence Act 1995 (NSW), s 184 (formal admissions)
- Mental Health Act 1990 (NSW), ss 97, and general provisions relating to the Mental Health Review Tribunal
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 38 (special verdict), 39 (release on conditions)
- Mental Health Act 2007 (NSW) (noted as forthcoming replacement legislation)

Cases cited: No cases were cited in the judgment.