AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 6 May 2011

R v Tarantello

[2011] NSWSC 383

Homicide
CRIMINAL LAW MURDER JUDGE ALONE TRIAL SPECIAL HEARING DEFENCE OF MENTAL ILLNESS

Citation: R v Tarantello [2011] NSWSC 383
Court: Supreme Court of New South Wales
Date: 6 May 2011
Judge(s): Schmidt J

Background

The accused was charged with the murder of his mother's partner at Haberfield on 13 May 2009. He had been diagnosed with paranoid schizophrenia approximately a decade earlier and was receiving ongoing psychiatric treatment at the time of the death. Police responded to a triple-zero call made by the accused and found him at the scene, covered in blood, standing over the deceased's body.

In May 2010, Davies J had found the accused unfit to stand trial under the Mental Health (Forensic Provisions) Act 1990 ("the Act"). The Mental Health Review Tribunal subsequently conducted multiple reviews and, by March 2011, had confirmed that the accused remained unfit to be tried and recommended no further fitness inquiry be held.

In February 2011, the Director of Public Prosecutions gave notice of an intention to proceed, and the matter was listed for a special hearing before Schmidt J sitting alone. The accused did not elect trial by jury, and his counsel acknowledged difficulties in obtaining instructions given his ongoing unfitness.

  • Whether, on the limited evidence available at a special hearing under the Act, it could be proved to the criminal standard that the accused committed the offence of murder.
  • Whether the defence of mental illness was established, such that a special verdict of not guilty by reason of mental illness should be returned under s 38 of the Act.
  • What detention orders were appropriate following a verdict of not guilty by reason of mental illness under s 39 of the Act.

Decision

Schmidt J conducted the special hearing in accordance with s 21(1) of the Act, which requires such proceedings to be conducted as nearly as possible as if they were an ordinary criminal trial. The facts were not in dispute: the Crown tendered documentary evidence by consent, and oral evidence was called from two police officers. Both the triple-zero recording and the accused's record of interview were played in court.

On the question of mental illness, the court applied the test established in R v M'Naghten (1843) and affirmed in R v Porter (1933) 55 CLR 182. The relevant question was whether the accused was, at the time of the act, suffering from a disease of the mind that deprived him of the capacity to know either the nature and quality of his act, or that it was wrong. Psychiatric evidence before the court addressed the accused's mental state at the relevant time.

Schmidt J was satisfied, on the evidence, that the defence of mental illness was established. The court returned a special verdict of not guilty by reason of mental illness pursuant to s 22(1)(b) of the Act. Because that verdict was available, the court did not proceed to determine whether the Crown had proved the offence to the requisite standard on the limited evidence available.

Consistent with s 39 of the Act, the court ordered the accused's continued detention, noting that release could only occur through the Mental Health Review Tribunal process and only if the Tribunal was satisfied that the safety of the accused or members of the public would not be seriously endangered.

Orders Made

  • The accused was found not guilty by reason of mental illness on the charge of murder, pursuant to s 22(1) of the Mental Health (Forensic Provisions) Act 1990.
  • The accused was ordered to be detained in an appropriate correctional centre or such facility or other place as the Mental Health Review Tribunal may determine, until released by due process of law, pursuant to s 39 of the Act.
  • The Registrar was directed to notify the Minister for Health and the Mental Health Review Tribunal of the orders made, and to provide the Tribunal with copies of the psychiatric reports tendered in evidence, pursuant to s 39(3) of the Act.

Key Takeaways

  • Under the Mental Health (Forensic Provisions) Act 1990, a special hearing can result in a verdict of not guilty by reason of mental illness even where the accused has been found permanently unfit to stand trial in ordinary proceedings.
  • The M'Naghten test, as applied in Australian courts through R v Porter, requires the defence to establish that a disease of the mind deprived the accused of the capacity to know the nature and quality of the act, or that it was wrong. Schmidt J applied this test in the special hearing context.
  • A verdict of not guilty by reason of mental illness does not result in unconditional release. Under s 39 of the Act, the court must order detention, and release requires a future Tribunal determination that the safety of the person and the public will not be seriously endangered.
  • Special hearings under the Act are to be conducted as nearly as possible as if they were an ordinary criminal trial, including the accused's entitlement to raise any available defence, consistent with the Court of Criminal Appeal's approach in R v Zvonaric [2001] NSWCCA 505.
  • The accused's ongoing unfitness presented practical difficulties for the conduct of the hearing, including challenges in obtaining instructions for cross-examination, but those difficulties did not prevent the special hearing from proceeding in accordance with the Act.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 16, 19, 21, 21A, 22, 38, 39, 46, 47
- Crimes Act 1900 (NSW), s 19A
- Evidence Act 1995 (NSW)

Cases
- R v M'Naghten (1843) 10 Cl & F 200
- R v Porter [1933] HCA 1; (1933) 55 CLR 182
- Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50
- Mizzi v R [1960] HCA 77; (1960) 105 CLR 659
- R v Zvonaric [2001] NSWCCA 505
- R v Stiles (1990) 50 A Crim R 13
- Regina v Coleman [2010] NSWSC 177
- R v Tarantello [2010] NSWSC 469 (earlier fitness hearing)