Citation: R v Wyse [2011] NSWDC 241
Court: District Court of NSW
Date: 30 November 2011
Judge: Berman SC DCJ
Background
Following the execution of a search warrant at a man's premises in June 2008, police discovered a large quantity of drugs, drug paraphernalia, and a pen pistol. The accused had concealed drugs in false compartments hidden behind paintings. When police entered, he became agitated and assaulted a detective.
It became apparent early in the investigation that the accused was mentally unwell. A barrister attending to assist him expressed concern about his mental state, and the officer-in-charge formed the same view from conversations with him. Two experienced forensic psychiatrists, Dr Allnutt and Dr Nielssen, subsequently assessed him and both concluded he was unfit to stand trial.
A fitness hearing under the Mental Health (Forensic Provisions) Act confirmed he was unfit. The Mental Health Review Tribunal later found he was unlikely to become fit within twelve months, triggering the requirement for a Special Hearing to determine, on the limited evidence available, whether he had committed the charged offences.
Legal Issues
- Whether the accused committed the charged offences of possessing and supplying illegal drugs and possessing a pen pistol.
- Whether, at the time of the offending, the accused was so significantly mentally unwell as to be unable to appreciate the wrongfulness of his conduct, entitling him to a verdict of not guilty on the grounds of mental illness.
- Whether, following that finding, the accused's release would seriously endanger his own safety or that of any member of the public, pursuant to section 39(2) of the Mental Health (Forensic Provisions) Act.
Decision
The court accepted that the evidence established the accused had committed the charged offences, a concession also made by his counsel. The central question was therefore whether mental illness provided a complete defence.
Both Dr Allnutt and Dr Nielssen diagnosed the accused with a relapsing psychotic illness, either schizophrenia or schizoaffective disorder. Both expressed the opinion that, at the time of the offending, he was in an acute phase of that illness and, on the balance of probabilities, lacked the capacity to appreciate the moral wrongfulness of his conduct. The court accepted those opinions, though not without reservation.
His Honour noted genuine concern that the psychiatrists may not have been provided with all the material available at the hearing, including documents found by police that raised questions about the accused's awareness of what he was doing. The court observed that the doctors appeared to have worked from an early police statement of facts rather than the full brief of evidence. Despite this, having reviewed the totality of the material, including the history of psychiatric admissions, the accused's delusional beliefs (including a belief that a microchip had been inserted in his brain), and the unanimous expert opinion, the court was satisfied on the balance of probabilities that the mental illness defence was established. The accused was found not guilty on all fourteen counts on the grounds of mental illness.
On the question of consequential orders, the court found the accused's psychotic illness had since gone into remission through consistent treatment. He had been on bail since February 2009, had remained compliant with treatment, and had shown no aggression in the preceding twelve months. The court was satisfied on the balance of probabilities that neither the accused's safety nor that of any member of the public would be seriously endangered by his release.
Orders Made
- The accused was conditionally released from custody, subject to the following conditions:
- Attendance at the Mental Health Review Tribunal as required.
- Residence with his mother at an address provided to the court, or any other location directed by the Tribunal.
- Good behaviour.
- Compliance with all directions of the Tribunal.
- Monthly attendance at the North Sydney Local Health District Community Health Centre, or as directed.
- Attendance with Dr Bernardi as required by her or the Tribunal.
- Taking of all medication prescribed by Dr Bernardi, her delegate, or any person appointed by the Tribunal.
- The Registrar of the District Court was directed to notify the Minister for Health and the Mental Health Review Tribunal of the terms of the order.
Key Takeaways
- A Special Hearing under the Mental Health (Forensic Provisions) Act proceeds on a not guilty plea by operation of law; the accused is not asked to enter a plea.
- Under the mental illness defence, the relevant question is whether the accused, due to a defect of reason arising from mental illness, was unable to appreciate the moral wrongfulness of the conduct, not merely its legal status.
- The District Court gave weight to unanimous expert psychiatric opinion supporting the mental illness defence, while expressly noting its concern that the experts may not have received the full evidentiary material considered by the court. The court reached its own conclusion rather than simply adopting the experts' views.
- Where concealment of contraband raises a possible inference of awareness, courts will scrutinise whether expert opinions have engaged with that evidence before accepting a mental illness defence.
- Under section 39(2) of the Mental Health (Forensic Provisions) Act, a court finding a person not guilty on grounds of mental illness must be satisfied on the balance of probabilities that neither the accused's safety nor public safety would be seriously endangered before ordering release into the community.
Legislation and Cases Referenced
Legislation:
- Mental Health (Forensic Provisions) Act (NSW), including sections 10 and 39(2)
Cases:
None cited in the judgment.