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Supreme Court 21 November 2012

R v Mitchell

[2012] NSWSC 1404

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

Citation: R v Mitchell [2012] NSWSC 1404
Court: Supreme Court of New South Wales
Date: 21 November 2012
Judge: Fullerton J

Background

The accused, a man in his forties, deliberately drove a white van into a cyclist on a rural road near Mullumbimby in January 2012. The cyclist, a 60-year-old man riding to an Alcoholics Anonymous meeting, was struck from behind and died shortly after arriving at hospital. Both men were members of the same AA community and had an established history of contact.

The accused was charged with murder and, in the alternative, dangerous driving occasioning death. The trial proceeded without a jury, by consent, before Fullerton J.

At arraignment, the accused pleaded not guilty to murder on the ground of mental illness. The Crown did not oppose the entry of a special verdict. The sole issue for determination was whether the accused had discharged the onus of establishing the mental illness defence under the Mental Health (Forensic Provisions) Act 1990.

  • Whether the accused had established, on the balance of probabilities, that he was suffering from a mental illness at the time of the killing such that he did not know it was wrong to drive his van at the deceased.
  • Whether a special verdict of not guilty on the ground of mental illness should be entered under s 38 of the Mental Health (Forensic Provisions) Act 1990.
  • What orders should follow under s 39 of that Act, given the accused's ongoing psychiatric condition and the associated risk to public safety.

Decision

Two independent forensic psychiatrists, Dr Olav Nielssen and Dr Bruce Westmore, each provided reports and shared the opinion that the accused was suffering from a mental illness at the time of the collision. Both concluded that the illness deprived him of the capacity to consider the moral consequences of his behaviour. No oral evidence was called, and the psychiatric evidence was uncontested.

Fullerton J was satisfied, on the balance of probabilities, that the accused met the legal test for the mental illness defence. Her Honour noted that the question of whether the requisite intent for murder had been proved does not arise once the mental illness defence is established, following R v Minani [2005] NSWCCA 226. Accordingly, that issue was not determined.

On the question of disposition, Fullerton J declined to order the accused's release into the community. The prevailing diagnosis was chronic schizophrenia, and there was no evidence of symptom abatement as at the most recent psychiatric examination. No information from Justice Health was available to support a risk assessment that would justify release. Her Honour was therefore not satisfied that the accused's release would pose no serious risk to his own safety or that of the community.

Orders Made

  • The accused is to be detained in a correctional facility, or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law.
  • The Registrar is directed to notify the Minister of Health of the orders.
  • The Registrar is directed to notify the Mental Health Review Tribunal of the verdict and orders, and to provide it with a copy of the reasons, orders, and tendered exhibits.

Key Takeaways

  • A special verdict of not guilty on the ground of mental illness requires the accused to establish, more probably than not, that at the time of the relevant act they were suffering from a mental illness that prevented them from knowing the act was wrong.
  • Under the rule confirmed in R v Minani, a court determining a mental illness defence in a murder case is not required to decide whether the requisite intent for murder was present; that question only becomes relevant if the defence fails.
  • Where both prosecution and defence psychiatrists agree that the mental illness defence is established, and the Crown does not contest the special verdict, the court's primary task shifts to disposition under s 39 of the Mental Health (Forensic Provisions) Act 1990.
  • Detention following a special verdict is appropriate where the evidence does not permit the court to be satisfied that release would pose no serious risk to the forensic patient or members of the public.
  • Following a s 39 detention order, the Mental Health Review Tribunal assumes responsibility for periodic review, with any proposed release requiring notification to the Minister of Health and the Attorney General.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Criminal Procedure Act 1986 (NSW), s 132
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 22(2), 38, 39

Cases:
- R v Minani [2005] NSWCCA 226; 62 NSWLR 490