Citation: R v Waterlow [2011] NSWSC 326
Court: Supreme Court of New South Wales
Date: 19 April 2011
Judge: Hidden J
Background
The accused stood trial on two counts of murder and one count of recklessly inflicting grievous bodily harm, arising from a violent incident on 9 November 2009. During the incident, the accused attacked his father and sister with a kitchen knife at his sister's Randwick home, causing fatal injuries to both. His niece, a child not quite three years old, suffered a severe laceration to her cheek and neck in the course of the attack on her mother.
The accused had a documented history of paranoid schizophrenia spanning approximately a decade before the offences. His illness manifested in persistent delusional beliefs that family members, particularly his father and sister, were orchestrating a worldwide campaign to destroy him. Over the years leading up to the offences, he had made threats against family members, behaved aggressively and erratically, and consistently refused anti-psychotic medication.
The trial proceeded before Hidden J sitting without a jury. The accused pleaded not guilty to each charge. The only issue for determination was whether he was mentally ill, in the legal sense, at the time of the offences.
Legal Issues
- Whether the accused satisfied the legal test for mental illness, as articulated in The King v Porter (1936) 55 CLR 182, at the time of the offences
- Whether his paranoid schizophrenia deprived him of the capacity to know that his actions were wrong
- What order should follow a verdict of not guilty by reason of mental illness under the Mental Health (Forensic Provisions) Act 1990
Decision
Hidden J found, beyond reasonable doubt, that the physical elements of all three charges were established. The accused had deliberately stabbed his father and sister intending to kill or inflict grievous bodily harm, and he had recklessly inflicted grievous bodily harm upon the child. These factual findings were not in dispute.
The central question was whether the defence of mental illness was made out. Applying the test in Porter, the court considered whether, at the time of the offences, the accused was suffering from a disease of the mind that deprived him of the capacity to know that what he was doing was wrong. Psychiatric evidence confirmed a diagnosis of paranoid schizophrenia, with the accused experiencing auditory hallucinations and fixed delusional beliefs that his family was persecuting him. His behaviour at the time of the offences was described as "delusionally driven."
Expert opinion supported the conclusion that the accused lacked the capacity to reason with sense and composure about the wrongfulness of his actions at the relevant time. One expert noted that the accused's mental state at the time meant that, while he may have appreciated his actions were morally wrong in some sense, his capacity to reason soundly about that wrongfulness was severely impaired by his untreated illness. Hidden J accepted this evidence and returned verdicts of not guilty by reason of mental illness on all counts.
The court acknowledged that the accused had received treatment in custody since his arrest, had shown insight into his illness, and expressed what appeared to be genuine remorse. Hidden J did not comment on questions of future release, noting these matters fell within the province of the Mental Health Review Tribunal.
Orders Made
- The accused is to be detained at the Long Bay Prison Hospital, or at such other place as may be determined by the Mental Health Review Tribunal, until released by due process of law.
- The Mental Health Review Tribunal, in conducting its review under s 44 of the Mental Health (Forensic Provisions) Act 1990, is recommended to consider:
- The views expressed by Dr Adrian Keller in his affidavit of 11 April 2011
- The transfer of the accused to the Forensic Hospital, Malabar, as soon as practicable
Key Takeaways
- The Supreme Court applied the Porter test, which asks whether the accused, by reason of a disease of the mind, lacked the capacity to know that his actions were wrong at the time of the offences.
- A documented, long-standing history of untreated paranoid schizophrenia, supported by consistent medical records and expert psychiatric evidence, can satisfy the mental illness defence even where the accused may have had some awareness of wrongfulness in a moral sense, provided his capacity to reason soundly about that wrongfulness was substantially impaired.
- Where a verdict of not guilty by reason of mental illness is returned, mandatory detention follows under s 39 of the Mental Health (Forensic Provisions) Act 1990, with ongoing supervision by the Mental Health Review Tribunal under s 44.
- Compliance with medication in custody and demonstrated insight at trial are relevant contextual matters but do not themselves resolve questions of future release, which remain exclusively within the Tribunal's remit.
- The judgment illustrates the court's strict separation of its fact-finding and verdict functions from the distinct supervisory and risk-assessment role of the Mental Health Review Tribunal.
Legislation and Cases Referenced
Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 39 and 44
Cases:
- The King v Porter (1936) 55 CLR 182