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Supreme Court 29 November 2011

R v Loughrey

[2011] NSWSC 1456

Assault & violenceHomicide
CRIMINAL LAW MURDER INTENT TO MURDER TRIAL BY JUDGE ALONE DEFENCE OF MENTAL ILLNESS SPECIAL VERDICT

Citation: R v Loughrey [2011] NSWSC 1456
Court: Supreme Court of New South Wales
Date: 29 November 2011
Judge(s): Fullerton J

Background

The accused was a voluntary mental health patient residing at Bloomfield Hospital in Orange, New South Wales. On 5 January 2011, he attacked a nurse with a knife, causing multiple lacerations to her hand. When a second nurse intervened, the accused fatally stabbed him in the chest and inflicted further injuries to his face, wrist, and arms.

The accused was subsequently charged with wounding the first nurse with intent to murder, and with the murder of the second nurse. He was arraigned on 25 October 2011 and pleaded not guilty to both charges on the grounds of mental illness under s 22 of the Mental Health (Forensic Provisions) Act 1990.

The trial proceeded without a jury before Fullerton J, with the consent of the Director of Public Prosecutions, pursuant to s 132 of the Criminal Procedure Act 1986. The Crown did not oppose a special verdict.

  • Whether the accused had discharged the onus of establishing, on the balance of probabilities, that at the time of the offences he was suffering from a mental illness such that he did not know that what he was doing was wrong, within the meaning of s 38 of the Mental Health (Forensic Provisions) Act 1990.

Decision

The sole issue before the court was whether a special verdict of not guilty by reason of mental illness should be entered. The applicable test, drawing on the formulation from R v Porter (1936) 55 CLR 182, asks whether the accused, through a disease or disorder of the mind, was unable to appreciate the wrongness of the particular act at the particular time, judged against the everyday standards of reasonable people.

Four consultant forensic psychiatrists, including one tendered by the Crown, provided reports. Their opinions were unanimous: at the time of both attacks, the accused was suffering from a mental illness that deprived him of the capacity to consider the moral or legal consequences of his behaviour. The medical evidence also established a lengthy history of severe mental illness, including psychosis with delusions, poor medication compliance, and a failure to receive the antipsychotic medication Clozapine during his admission at Bloomfield, despite earlier clinical recommendations that it be considered. His condition had improved markedly after Clozapine was introduced following his remand.

Fullerton J accepted the unanimous psychiatric evidence and was satisfied, on the balance of probabilities, that the accused did not know that what he was doing was wrong at the time of the offences. Her Honour entered a special verdict of not guilty by reason of mental illness on both charges. The judgment also acknowledged the profound grief of the deceased nurse's family, including remarks from his daughter expressing both sorrow and frustration at what she perceived as failures by the mental health system. Fullerton J noted that, under the Australian legal system, only those who are mentally competent are punished as criminal offenders.

Orders Made

  • The accused is to be detained at Long Bay Prison Hospital until released by due process of law, pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990.
  • The detention is subject to review by the Mental Health Review Tribunal under s 44 of the Act.
  • The court recommended that the Mental Health Review Tribunal consider transferring the accused to the Forensic Hospital at Malabar as soon as practicable, in light of his current treatment and future management regime.

Key Takeaways

  • A special verdict of not guilty by reason of mental illness is available under s 38 of the Mental Health (Forensic Provisions) Act 1990 where the accused establishes, on the balance of probabilities, that a mental illness deprived them of the ability to know that their act was wrong at the time it was committed.
  • The test for "not knowing the act was wrong" follows the formulation in R v Porter (1936) 55 CLR 182: the accused must have been unable, through a mental disease or disorder, to reason about the act with a moderate degree of sense and composure, judged against the everyday standards of reasonable people.
  • Where the Crown does not oppose a special verdict and four forensic psychiatrists express a uniform opinion on the accused's mental state at the time of the offences, the court may act on that unanimity without requiring oral evidence.
  • A judge-alone trial under s 132 of the Criminal Procedure Act 1986 is available in cases involving a mental illness defence, with the consent of the Director of Public Prosecutions.
  • Upon entry of a special verdict, s 39 of the Mental Health (Forensic Provisions) Act 1990 requires the court to order detention, with ongoing oversight by the Mental Health Review Tribunal under s 44 of the Act.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 22, 38, 39, 44
- Criminal Procedure Act 1986 (NSW), s 132
- Mental Health Act 2007 (NSW), Schedule 1

Cases
- R v Waterlow [2011] NSWSC 326
- The King v Porter (1936) 55 CLR 182