Citation: Regina v RS [2011] NSWSC 830
Court: Supreme Court of New South Wales
Date: 5 August 2011
Judge(s): Barr AJ
Background
The accused, referred to only by his initials to protect the welfare of a young child of the marriage, was charged with the murder of his wife. The couple lived in a New South Wales city and had a months-old infant. The accused had a documented history of mental illness, as well as alcohol and cannabis use, and the relationship had been marked by ongoing conflict.
On 18 January 2010, a telephone argument escalated sharply. The deceased's mother, listening on the phone, heard her daughter screaming and the accused making sounds consistent with strenuous physical exertion. She drove to the couple's home and found her daughter dead. Shortly afterwards, the accused walked into a police station covered in blood and told officers he had killed his wife, providing her address.
The accused elected trial by judge alone, with the Crown's consent. He pleaded not guilty by reason of mental illness under the Mental Health (Forensic Provisions) Act 1990.
Legal Issues
- Whether the accused committed the act that caused the deceased's death with intent to kill, making him otherwise liable for murder.
- Whether the accused had established, on the balance of probabilities, that he was not guilty by reason of mental illness at the time of the offence.
- What orders should follow upon a finding of not guilty by reason of mental illness, including the role of the Mental Health Review Tribunal in the accused's ongoing detention and potential release.
Decision
Issue 1: Liability for murder absent the mental illness defence
Barr AJ was satisfied beyond reasonable doubt that the accused carried out the attack and intended to kill the deceased. Medical evidence from Dr Duflou recorded 41 stab wounds and other marks, including catastrophic injuries to the neck that severed major blood vessels and partially transected the spinal cord. Two knives were used. Combined with the accused's admissions to police and the sounds heard by the deceased's mother during the telephone call, the court found the attack to have been ferocious and clearly intentional. Without the mental illness defence, the accused would have been found guilty of murder.
Issue 2: The mental illness defence
The accused bore the onus of proving the defence on the balance of probabilities. The applicable test asks whether, at the time of the offence, the accused suffered a defect of reason arising from a disease of the mind such that he did not know the nature and quality of his act, or did not know it was wrong. In Australia, the test extends to whether a disordered mind prevented the accused from reasoning about the moral quality of the act with any moderate degree of sense and composure.
Three psychiatrists gave evidence. Dr Roberts and Dr Westmore each concluded that the accused was suffering from a chronic paranoid psychosis at the time of the killing, a condition that had developed over many years and was likely exacerbated by cannabis use. Dr Westmore expressed the opinion that as a result of that psychosis the accused was unable to reason about the wrongness of his actions with any moderate degree of calmness. Barr AJ accepted that expert opinion and was satisfied on the balance of probabilities that the accused met the legal test for the mental illness defence.
Issue 3: Detention and the role of the Mental Health Review Tribunal
Upon a finding of not guilty by reason of mental illness, the Mental Health (Forensic Provisions) Act 1990 requires the accused to be detained and referred to the Mental Health Review Tribunal. The Tribunal, which includes judicial members, must review the case promptly and periodically thereafter. It may order how the accused is to be detained, cared for, or treated, and may also order conditional or unconditional release. Any release decision requires forensic psychiatric evidence and must not occur unless the Tribunal is satisfied that neither the accused's safety nor the safety of the public would be seriously endangered.
Orders Made
- The accused was found not guilty of murder by reason of mental illness.
- The accused was ordered to be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre, or such other place as the Mental Health Review Tribunal determines, until released by due process of law.
Key Takeaways
- A finding of not guilty by reason of mental illness does not result in unconditional freedom. Under the Mental Health (Forensic Provisions) Act 1990, the accused is detained and subject to ongoing review by the Mental Health Review Tribunal, which must be satisfied that public safety would not be seriously endangered before ordering release.
- The burden of proving the mental illness defence rests on the accused, who must establish it on the balance of probabilities, not beyond reasonable doubt.
- Where multiple psychiatrists consistently diagnose a chronic paranoid psychosis that prevented the accused from reasoning about the wrongness of their conduct with any moderate degree of calmness, that expert consensus can satisfy the legal test for the mental illness defence.
- Cannabis use was identified by the psychiatrists as a likely contributing factor in the development and intensification of the accused's psychotic illness, though the underlying paranoid condition predated his cannabis use by many years.
- The Supreme Court confirmed that the Tribunal's release power is subject to a mandatory safeguard: a panel member who is or has been a judge must be present, and both the Minister for Health and the Attorney General must be notified of any proposed release so they may make submissions.
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990
Cases
- Not stated