Citation: R v Shane GILL [2009] NSWDC 229
Court: District Court of New South Wales
Date: 27 August 2009
Judge(s): Knox SC DCJ
Background
The accused faced a single count of sexual assault, alleged to have occurred in the early hours of 23 February 2007 at the complainant's home in Towradgi, NSW. The charge was brought under section 61I of the Crimes Act 1900, which requires proof of sexual intercourse without consent and with knowledge of the lack of consent.
The accused had previously been found unfit to plead following a fitness hearing in April 2008. The Mental Health Review Tribunal subsequently determined he was unlikely to become fit within twelve months. The DPP elected to proceed, and a special hearing was ordered under the Mental Health (Forensic Provisions) Act 1990.
The special hearing ran over four days in August 2009. Because the accused was found unfit for a normal trial, the proceedings were governed by the statutory special hearing regime, under which the accused was taken to have pleaded not guilty. The central issues were whether the sexual intercourse occurred without consent and whether the accused's mental state at the time of the alleged offence brought the defence of mental illness into play.
Legal Issues
- Whether the Crown could prove beyond reasonable doubt, on the limited evidence available, that the accused committed the offence of sexual assault
- Whether the accused was not guilty by reason of mental illness at the time of the alleged offence, given his diagnosis of chronic schizoaffective disorder
- What order the questions of consent and knowledge should be addressed where insanity is raised, following Hawkins v The Queen and R v Minani
- Whether conditions could be imposed on release consistent with public safety, particularly regarding medication compliance and alcohol abstinence
Decision
Knox SC DCJ applied the framework from Hawkins v The Queen (1994) 179 CLR 500 and R v Minani [2005] NSWCCA 226 to determine the correct sequence of questions when both consent and insanity are in issue. The court worked through whether the act occurred, whether it was without consent, whether the accused had knowledge of the lack of consent, and then whether the mental illness defence was established.
The accused suffered from chronic schizoaffective disorder, a condition characterised by hallucinations, voices, and disordered thought processes. Five psychiatric reports were tendered. The court accepted the psychiatric evidence that, at the time of the alleged offence, the accused's mental illness was such that he did not know the nature and quality of his act or that it was wrong, satisfying the M'Naghten test for the insanity defence.
The court returned a verdict of not guilty by reason of mental illness. It then considered whether the accused's release would seriously endanger public safety, relying in particular on a report from Dr Turnbull dated 21 August 2009 and evidence from the accused's father. The court found, on the balance of probabilities, that release subject to strict conditions posed no serious risk.
Orders Made
- The accused was found not guilty by reason of mental illness
- The Mental Health Review Tribunal to be notified of the findings
- The accused to be released subject to the following conditions:
- Compliance with directions from Dr Turnbull or any other treating psychiatrist nominated by the Tribunal
- Compliance with directions from any alcohol and drug counsellor nominated by the Tribunal, including total abstinence from alcohol and illegal drugs
- Fortnightly injections of anti-psychotic medication Risperidone (Consta) and daily Clozapine (or as prescribed)
- At least monthly monitoring of his condition and urine and serum levels to confirm medication compliance
- Regular Naltrexone testing to ensure alcohol abstinence
- Attendance before the Mental Health Services Tribunal within seven days
- No attendance at any licensed hotel; attendance at licensed restaurants only with family, except at the Towradgi Bowling Club in the presence of an immediate family member or a serving director or manager
- Copies of the five psychiatric reports, the judgment, and reasons to be forwarded to the Tribunal and to Dr Turnbull under section 39 of the Mental Health (Forensic Provisions) Act 1990
Key Takeaways
- A special hearing under the Mental Health (Forensic Provisions) Act 1990 proceeds on the basis that the accused is taken to have pleaded not guilty, and the court must determine one of three verdicts: not guilty, not guilty by reason of mental illness, or that the accused committed the offence
- Under Hawkins v The Queen and R v Minani, where insanity is raised alongside a charge requiring proof of knowledge, the court must address the elements of the offence in a defined sequence before turning to the mental illness defence
- The M'Naghten test for insanity, derived from R v M'Naghten (1843), requires that at the time of the act the accused did not know the nature and quality of the act, or did not know that it was wrong; the District Court applied this test and found it satisfied on the psychiatric evidence
- Chronic schizoaffective disorder accompanied by active hallucinations and disordered thought processes can, on appropriate medical evidence, ground a finding of not guilty by reason of mental illness
- Release following such a finding is not automatic; the court must be satisfied on the balance of probabilities that public safety will not be seriously endangered, and may impose detailed conditions including mandatory medication regimes and lifestyle restrictions
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61I, s 428B
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 19, 21A, 23, 39
Cases:
- Hawkins v The Queen (1994) 179 CLR 500
- R v Hawkins (1994) 122 ALR 27
- R v Minani [2005] NSWCCA 226
- Flemming v R (1998) 197 CLR 250
- Doe v R [2008] NSWCCA 203
- R v M'Naghten (1843) All ER 229
Other:
- US Diagnostic and Statistical Manual of Mental Disorders (DSM)