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Supreme Court 23 May 2008

R v ANG

[2008] NSWSC 673

Assault & violenceHomicide
CRIMINAL LAW MENTAL ILLNESS DEFENCE

Citation: R v ANG [2008] NSWSC 673
Court: Supreme Court of New South Wales
Date: 23 May 2008
Judge(s): Adams J

Background

The accused was charged with the murder of his wife and wounding his son (then aged 15) with intent to murder him. The alleged offences occurred on 3 February 2007. It was not disputed that the accused carried out both attacks.

The accused was a 52-year-old Malaysian-born accountant who had lived in Australia with his family after relocating from New Zealand. From late 2006, he developed severe paranoid delusions and profound depression. By early 2007, he had come to believe that life was so bleak and hopeless that he decided to kill his wife, his son, and himself, acting out of a distorted form of concern rather than anger or hostility.

All four psychiatrists who examined the accused agreed he suffered from major depression with psychotic features. The sole contested issue was whether his illness, at the time of the offences, met the legal threshold for the mental illness defence under New South Wales law.

  • Whether the accused was suffering from a mental illness at the time of the offences so as not to be responsible according to law, within the meaning of s 38 of the Mental Health (Criminal Procedure) Act 1990
  • Specifically, whether the accused knew that what he was doing was wrong at the time he committed the acts, applying the M'Naghten principles
  • Whether the accused had discharged the onus of proof on the balance of probabilities to establish the mental illness defence

Decision

All four psychiatrists agreed the accused had a disease of the mind that substantially impaired his ability to reason. It was also accepted that he understood the physical nature of his acts, namely that he was killing his wife and attempting to kill his son. The genuine dispute was whether he understood that what he was doing was morally wrong.

The Crown's psychiatric witnesses, Dr Brown and Dr Allnutt, concluded the accused did retain some capacity for moral understanding, pointing to his conversation with his son before the attack, his farewell to his son, the writing of a suicide note, and his stopping short of killing his son. Adams J considered those matters carefully but was not persuaded by that reasoning. His Honour found the suicide note was a flat statement of fact and did not demonstrate any awareness of wrongdoing. The conversation with his son and the other conduct were equally explicable on the basis of severe psychosis.

Adams J accepted the evidence of Dr Nielssen and Dr Westmore that the accused genuinely lacked the capacity to understand that what he was doing was wrong. His psychotic state meant he perceived the killings as right and had no means, given the severity of his illness, to consider any other possibility. Adams J also applied a reformulation of the M'Naghten test associated with Sir Owen Dixon: the defence is made out when an accused cannot reason with some moderate degree of calmness about the moral quality of the act. The accused clearly could not do so, and Adams J was satisfied his condition was, if anything, even more severe than that test requires.

Adams J expressed not merely probable but certain satisfaction that the defence was established, noting that even the Crown's own expert witnesses placed the accused very close to the threshold, and that if the onus had rested on the Crown the evidence would not have supported a finding against the defence.

Orders Made

  • Special verdict entered: not guilty by reason of mental illness on both charges, pursuant to s 38 of the Mental Health (Criminal Procedure) Act 1990
  • Matter adjourned to 4 July 2008 for a further hearing to consider orders under s 39 of the Act

Key Takeaways

  • The Supreme Court entered a special verdict of not guilty by reason of mental illness where all psychiatric evidence confirmed a severe mental illness, even though the Crown's experts believed the accused retained some marginal awareness of wrongdoing.
  • Under the M'Naghten principles as applied in New South Wales, the critical question is not only whether the accused knew the physical nature of the act, but whether the accused knew that what they were doing was wrong.
  • A broader formulation of the M'Naghten test, associated with Sir Owen Dixon, provides that the defence is established when the accused cannot reason with some moderate degree of calmness about the moral quality of their actions.
  • The onus of establishing the mental illness defence on the balance of probabilities rests on the accused, not the Crown; however, Adams J observed that even on the evidence as a whole, the accused comfortably satisfied that burden.
  • Circumstantial conduct such as writing a suicide note or pausing during an attack does not automatically demonstrate moral understanding of wrongdoing; the significance of such conduct must be assessed in the full context of the accused's psychiatric state.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 38 and 39

Cases:
- Regina v M'Naghten (1843) 8 ER 718