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Supreme Court 13 April 2012

R v Doug McDonald

[2012] NSWSC 875

Homicide
CRIMINAL LAW MURDER MENTAL ILLNESS

Citation: R v Doug McDonald [2012] NSWSC 875
Court: Supreme Court of New South Wales
Date: 13 April 2012
Judge: Bellew J

Background

The accused was charged with murdering his stepfather at Nelson Bay on 12 November 2010. The accused had elected, under s 132 of the Criminal Procedure Act 1986, to have the matter determined by a judge alone, without a jury.

The night before the killing, the accused had been drinking at a hotel and subsequently at a nearby location with a group of people. An altercation occurred at a private premises, during which the accused sustained a head injury. A taxi driver who collected him shortly afterwards observed visible injuries and noted that he was agitated, rambling, and making threats. His behaviour in those hours was a significant contextual backdrop to the events that followed the next morning.

Defence counsel conceded that the Crown's evidence was sufficient to establish beyond reasonable doubt that the accused was responsible for the deceased's death. The accused nonetheless raised a defence of mental illness under Part 4 of the Mental Health (Forensic Provisions) Act 1990, arguing that at the time of the killing he did not know that what he was doing was wrong.

  • Whether the elements of the offence of murder were established beyond reasonable doubt.
  • Whether the defence of mental illness was made out on the balance of probabilities, specifically under the "second limb" of the M'Naughton rules: that the accused did not know that what he was doing was wrong at the time of the offence.
  • What procedural obligations applied to a judge sitting alone in place of a jury, particularly regarding the statutory warnings under s 37 of the Mental Health (Forensic Provisions) Act 1990.

Decision

Bellew J first addressed the procedural requirements for a judge-alone trial where a mental illness defence is raised. Section 37 of the Mental Health (Forensic Provisions) Act 1990 obliges a trial judge to explain to the jury a number of matters, including the practical and legal consequences of a not-guilty finding on mental illness grounds. His Honour confirmed that, sitting without a jury, he nonetheless took those statutory matters into account, as required by s 133(3) of the Criminal Procedure Act 1986. He adopted the summary of those consequences set out by Hall J in R v Coleman [2010] NSWSC 177, which explained the operation of the Mental Health Review Tribunal and the conditions under which a forensic patient may eventually be released.

On the murder charge, Bellew J accepted defence counsel's concession and independently confirmed that the Crown evidence, including the pathological evidence of a ferocious physical attack, established the elements of murder beyond reasonable doubt.

Turning to the mental illness defence, Bellew J considered the psychiatric evidence of two experts: Dr Stephen Allnutt (for the Crown) and Dr Olav Nielssen (for the accused). Both psychiatrists reached the same ultimate conclusion. Both were invited by the parties to be accepted, and Bellew J found no reason to reject their opinions. The accused's erratic and threatening behaviour in the hours before the killing provided additional support for the expert views on his mental state.

Bellew J was satisfied on the balance of probabilities that the accused did not know that what he was doing was wrong at the time of the killing. That satisfied the second limb of the mental illness defence. Accordingly, the accused was found not guilty on the grounds of mental illness.

Orders Made

  • The accused was ordered to be returned to his place of custody and detained there, or at such other place as deemed appropriate according to law, until released by due process of law (pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990).
  • The registrar of the Court was ordered to notify the Minister for Health and the Mental Health Review Tribunal of the terms of the detention order (pursuant to s 39(3) of the Mental Health (Forensic Provisions) Act 1990).

Key Takeaways

  • A judge sitting alone in a mental illness trial must take into account the matters prescribed by s 37 of the Mental Health (Forensic Provisions) Act 1990, even though that section is directed at juries. Section 133(3) of the Criminal Procedure Act 1986 provides the mechanism for this obligation.
  • The mental illness defence in New South Wales is made out on the balance of probabilities, in contrast to the criminal standard of proof that governs the Crown's case.
  • Where both the Crown and defence psychiatrists reach the same conclusion on the accused's mental state, and neither party contests those opinions, a court will ordinarily accept the expert evidence. Contemporaneous behavioural evidence may further corroborate those expert views.
  • A not-guilty finding on grounds of mental illness does not result in unconditional freedom. The accused becomes a forensic patient subject to ongoing detention, review by the Mental Health Review Tribunal, and potential release only when the tribunal is satisfied that the safety of the accused and the public would not be seriously endangered.
  • Under the M'Naughton rules as applied in New South Wales, the "second limb" of the mental illness defence is established where the accused, due to a mental disease, did not know that what they were doing was wrong at the time of the act.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 37, 39

Cases
- Mizzi v R (1960) 105 CLR 659
- R v Ayoub [1984] 2 NSWLR 511
- R v Coleman [2010] NSWSC 177
- R v M'Naughton (1843) 8 ER 718
- R v Michaux (1984) 13 A Crim R 173
- R v Porter (1933) 55 CLR 182
- R v Stiles (1990) 50 A Crim R 13
- Taylor v R (1978) 22 ALR 599