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Supreme Court 15 December 2011

R v FERNANDO

[2011] NSWSC 1556

HomicideFirearms & weapons
CRIMINAL LAW MURDER DEFENCE OF MENTAL ILLNESS TRIAL BY JUDGE ALONE NOT GUILTY BY REASON OF MENTAL ILLNESS

Citation: R v Fernando [2011] NSWSC 1556
Court: Supreme Court of New South Wales
Date: 15 December 2011
Judge: Hall J

Background

The accused was charged with murdering her father at a residential unit in Glebe on 22 August 2010. She had obtained a firearm from a pistol club that afternoon, concealed it, and lured her father to her unit under the pretence of needing help with her computer. She then shot him multiple times, causing his death from gunshot wounds to the head.

The accused pleaded not guilty on the ground of mental illness. She elected, with the consent of the Director of Public Prosecutions, to be tried by judge alone under the Criminal Procedure Act 1986. The trial proceeded before Hall J on 7 December 2011.

The factual circumstances of the killing were not in dispute. The sole question before the court was whether the accused's mental condition at the time of the offence entitled her to the defence of mental illness.

  • Whether the accused satisfied the court, on the balance of probabilities, that she was not criminally responsible for the killing by reason of mental illness at the time of the offence.
  • Whether the applicable test from R v Porter (1936) 55 CLR 182, as applied in NSW, was satisfied on the psychiatric evidence.
  • What orders should follow under the Mental Health (Forensic Provisions) Act 1990 upon a finding of not guilty by reason of mental illness.

Decision

Hall J first confirmed that the elements of murder had been established beyond reasonable doubt on the Crown evidence. The accused had deliberately obtained a firearm, lulled her father into attending her home, and shot him repeatedly. This formal finding was necessary before the mental illness defence could be assessed.

On the mental illness question, Hall J accepted the expert psychiatric evidence. Two psychiatrists, Dr Westmore and Dr Nielssen, provided reports concluding that the accused suffered from a long-standing psychosis. Their evidence established that at the time of the shooting she was acting under a schizophrenic delusion. The court found this evidence clearly established the defence of mental illness under the test in R v Porter, which requires the accused to demonstrate, as a matter of probability, that a disease of the mind rendered her incapable of knowing the nature of the act, or of knowing that it was wrong.

Hall J accordingly found the accused not guilty of murder by reason of mental illness. A third psychiatric report from Dr Gordon Elliott, dated 13 December 2011, was also before the court and informed the orders made regarding placement.

Orders Made

  • The accused was found not guilty of murder by reason of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990.
  • The accused was ordered to be detained pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990 in an appropriate correctional centre, or such facility as the Mental Health Review Tribunal may determine, until released by due process of law.
  • The court recommended that the Mental Health Review Tribunal give consideration to transferring the accused to a secure forensic hospital (specifically, the Forensic Hospital at Long Bay, as suggested by Dr Elliott) as soon as possible.
  • The Registrar was directed to notify the Minister for Health and the Mental Health Review Tribunal of the orders made.
  • The reports of Dr Nielssen and Dr Westmore were directed to be drawn to the attention of Justice Health.

Key Takeaways

  • The Supreme Court confirmed that where uncontested expert psychiatric evidence establishes a long-standing psychosis causing a schizophrenic delusion at the time of the offence, the defence of mental illness can be clearly made out even where the physical acts of the killing are undisputed and deliberate in appearance.
  • A finding of not guilty by reason of mental illness does not result in unconditional release. Under the Mental Health (Forensic Provisions) Act 1990, the court is required to order detention until the accused is released by due process of law, with the Mental Health Review Tribunal overseeing ongoing placement decisions.
  • The Porter test, as applied in NSW, requires the accused to satisfy the court on the balance of probabilities (not beyond reasonable doubt) that mental illness deprived her of the capacity to know the nature of her act or that it was wrong.
  • In a judge-alone trial, the court must still formally record a finding that each element of the charged offence has been established before proceeding to assess a mental illness defence, even where those facts are not in dispute.
  • Where multiple psychiatrists' reports are before the court on a mental illness defence, their conclusions can collectively provide a clear evidentiary foundation sufficient to sustain the defence without the need for cross-examination or contested expert opinion.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39(1)
- Criminal Procedure Act 1986 (NSW), s 32(1)

Cases:
- R v Porter (1936) 55 CLR 182 (High Court of Australia: foundational statement of the mental illness defence test in Australian law)
- R v Jennings [2005] NSWSC 789 (Supreme Court of NSW: applied in explaining the defence of mental illness to the trier of fact)