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Supreme Court 12 November 2012

R v Newbury

[2012] NSWSC 1361

Homicide
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON MURDER ACCUSED UNFIT TO BE TRIED SPECIAL HEARING BY JUDGE ALONE

Citation: R v Newbury [2012] NSWSC 1361
Court: Supreme Court of New South Wales
Date: 12 November 2012
Judge(s): Button J

Background

The accused was charged with the murder of a man who had been living with him as his paid carer at a home on the Central Coast of New South Wales. In the early hours of 3 August 2010, the deceased called 000, stated he had been stabbed, and named the accused as his attacker. The deceased died from a fatal stab wound to the chest before emergency services could assist him.

After committal to the Supreme Court, the accused was found unfit to stand trial by Davies J on 9 March 2012. The Mental Health Review Tribunal subsequently determined that the accused would not become fit within 12 months. The Director of Public Prosecutions directed that proceedings continue, and the matter was set down before Button J as a special hearing under the Mental Health (Forensic Provisions) Act 1990.

The special hearing was conducted before a judge alone, without a jury, in accordance with the Act. Both the Crown and defence counsel submitted that the appropriate verdict was not guilty on the ground of mental illness.

  • Whether the accused, found unfit to stand trial, could be the subject of a valid special hearing under the Mental Health (Forensic Provisions) Act 1990.
  • Whether the Crown had established beyond reasonable doubt that the accused committed the physical act of killing the deceased.
  • Whether the accused had established on the balance of probabilities the elements of the mental illness defence, applying the test in McNaghten's Case and the three-step approach from Hawkins v The Queen.
  • What verdict was appropriate and what consequences would flow from it.

Decision

Button J found, beyond reasonable doubt, that the accused performed the physical act of stabbing the deceased. The evidence included the deceased's own 000 call identifying the accused, blood on the accused's clothing matching the deceased's DNA, a knife found near the scene bearing the deceased's blood, and the accused's own statements to police suggesting knowledge of the weapon's whereabouts.

His Honour then applied the three-step approach confirmed by the High Court in Hawkins v The Queen to assess the mental illness defence. This approach requires consideration of: whether the accused was suffering a defect of reason; whether that defect arose from a disease of the mind; and whether, as a result, the accused either did not know the nature and quality of the act or did not know it was wrong. Both forensic psychiatrists who reported on the accused agreed he was suffering from a serious mental illness at the time of the killing, and neither the Crown nor the defence contested those conclusions.

Button J was satisfied on the balance of probabilities that the mental illness defence was established. His Honour explained in plain terms, for the benefit of those present in court, that this verdict did not mean the accused had not killed the deceased. Rather, because of the severity of his mental illness at the time, he could not be held criminally responsible.

His Honour also made clear that a verdict of not guilty on the ground of mental illness does not result in the accused's release. The accused was to remain in detention and be referred to the Mental Health Review Tribunal, which would not authorise his release unless satisfied it would not seriously endanger his own safety or that of any member of the public.

Orders Made

  • On the count of murder, a special verdict of not guilty on the ground of mental illness was returned.
  • The accused was ordered to be detained in Long Bay Prison Hospital, or such other facility as the Mental Health Review Tribunal may determine, until released by due process of law.
  • The Registrar was directed to notify the Minister for Health, as soon as reasonably practicable, of the judgment and orders.
  • The Registrar was directed to notify the Mental Health Review Tribunal, as soon as reasonably practicable, of the judgment and orders.

Key Takeaways

  • A special hearing under the Mental Health (Forensic Provisions) Act 1990 proceeds as closely as possible to a criminal trial before a judge alone, and the standard of proof for establishing the physical act remains beyond reasonable doubt.
  • The mental illness defence requires the accused to establish, on the balance of probabilities, that a defect of reason arising from a disease of the mind meant the accused either did not know the nature and quality of the act or did not know it was wrong, as confirmed in Hawkins v The Queen applying the McNaghten rules.
  • A verdict of not guilty on the ground of mental illness is not an acquittal in the ordinary sense. The accused does not go free; detention continues and the matter is referred to the Mental Health Review Tribunal for ongoing review.
  • Where both the Crown and defence accepted uncontested psychiatric evidence and jointly submitted on the appropriate verdict, Button J proceeded on that agreed basis while still setting out his own findings and reasoning in full.
  • Button J's explanation of the verdict's effect, delivered in open court for the benefit of the public and the families involved, illustrates the Supreme Court's approach to transparency in special hearings where no jury is present to receive the customary s 37 direction.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 11, 16, 19, 21, 21A, 37

Cases
- Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500
- McNaghten's Case (1843) 8 ER 718
- The King v Porter [1933] HCA 1; (1933) 55 CLR 182
- Ryan v The Queen [1968] HCA 2; (1968) 121 CLR 205
- R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490