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Supreme Court 11 May 2012

R v PCB

[2012] NSWSC 482

Assault & violenceHomicideFirearms & weapons
CRIMINAL LAW JUDGE ALONE TRIAL DEFENCE OF MENTAL ILLNESS CHRONIC PARANOID SCHIZOPHRENIA AUDITORY HALLUCINATIONS DETENTION ORDER MADE

Citation: R v PCB [2012] NSWSC 482
Court: Supreme Court of New South Wales
Date: 11 May 2012
Judge: Johnson J

Background

The accused, identified only as PCB, stood trial on charges arising from events on 9 October 2010 in Liverpool, NSW. The charges included the murder of his 12-year-old son, two counts of wounding with intent to murder (directed at two separate victims near the family unit), and possession of an offensive weapon with intent to assault a police officer. The victim in the murder count was a child, and suppression orders applied to protect the identities of the child, his mother, and the accused.

The accused had a lengthy history of mental illness, including chronic paranoid schizophrenia. Psychiatric evidence established that, at the time of the offences, he was experiencing an acute psychotic episode accompanied by auditory hallucinations.

The trial proceeded before a judge alone, following a valid election by the accused under the Criminal Procedure Act 1986 and the consent of the Director of Public Prosecutions. The sole issue at trial was the defence of mental illness.

  • Whether the prosecution had established beyond reasonable doubt the physical and mental elements of each charge
  • Whether the accused was entitled to verdicts of not guilty by reason of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990
  • What detention order was appropriate following verdicts of not guilty by reason of mental illness

Decision

Both counsel and the Crown accepted, on the evidence, that the prosecution had proven the elements of each offence beyond reasonable doubt. The accused had intentionally stabbed his son, had wounded two other victims with intent to kill, and had possessed a knife with intent to assault a police officer. The court made the necessary findings of fact accordingly.

The defence of mental illness was the only contested matter. Psychiatric evidence from Dr Rosalie Wilcox (for the Crown) and Dr Olav Nielssen (for the defence) was consistent in establishing that the accused suffered from chronic paranoid schizophrenia and was in the grip of an acute psychotic episode at the time of the offences. Auditory hallucinations were a significant feature of his condition at the relevant time.

On the basis of the agreed psychiatric evidence, Johnson J was satisfied that the defence of mental illness was established in respect of every count on the indictment. The court returned verdicts of not guilty by reason of mental illness on all five counts.

Johnson J also took care to explain, for the benefit of the community, the practical effect of the orders made. The accused would be detained as a forensic patient and would not be released unless and until the Mental Health Review Tribunal was satisfied that his release would not seriously endanger public safety or his own safety. The Tribunal would conduct reviews at six-monthly intervals, and any release could be made subject to conditions.

Orders Made

  • PCB found not guilty by reason of mental illness on each count of the indictment, in accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990
  • PCB to be detained in a correctional centre, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law (s 39(1) of that Act)
  • The Registrar directed to notify the Minister of Health of the order as soon as practicable
  • The Registrar directed to notify the Mental Health Review Tribunal and provide it with a copy of the reasons, the trial transcript, and all exhibits tendered at trial

Key Takeaways

  • Where an accused raises the defence of mental illness and uncontested psychiatric evidence establishes a qualifying mental condition, the court can return verdicts of not guilty by reason of mental illness across all charges on an indictment, including murder.
  • A verdict of not guilty by reason of mental illness does not result in unconditional release. Under the Mental Health (Forensic Provisions) Act 1990, the accused is detained as a forensic patient and remains subject to ongoing review by the Mental Health Review Tribunal at six-monthly intervals.
  • Sufficient evidence of chronic paranoid schizophrenia and an acute psychotic episode at the time of the offences, supported by consistent expert opinion from both Crown and defence psychiatrists, underpinned the court's satisfaction that the defence of mental illness was established.
  • Johnson J emphasised the importance of the community understanding the practical reality of forensic detention orders, noting that release requires the Tribunal's satisfaction that the accused does not pose a serious danger to public or personal safety.
  • The identity of a child victim in criminal proceedings is protected by s 15A of the Children (Criminal Proceedings) Act 1987, which prohibits publication of the child's name, image, or identifying information.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 27, 33(1)(a), 33B(1)(a)
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39(1)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- Mizzi v The Queen [1960] HCA 77; 105 CLR 659
- R v Rodriguez [2010] NSWSC 198
- R v Pratt [2009] NSWSC 1108