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Supreme Court 15 November 2013

R v Wilson (No 3)

[2013] NSWSC 1684

HomicidePublic order & justice offences
CRIMINAL LAW MURDER AND OTHER OFFENCES SPECIAL HEARING

Citation: R v Wilson (No 3) [2013] NSWSC 1684
Court: Supreme Court of New South Wales
Date: 15 November 2013
Judge(s): Harrison J

Background

The accused had previously been found unfit to stand trial for three offences: the murder of a man at Batemans Bay in November 2008, soliciting another person to murder his then-partner between January and February 2010, and committing an act intended to cause that same person to give false evidence. Following the Tribunal's determination that the accused would not become fit to be tried within 12 months, Johnson J directed that a special hearing be conducted under the Mental Health (Forensic Provisions) Act 1990.

The special hearing was conducted by Harrison J at Nowra from 4 November 2013. The court heard that the accused and the deceased had been friends and were both receiving treatment for severe mental illness. The prosecution's case on the murder count rested substantially on admissions the accused had made to his partner, corroborated by the later discovery of the deceased's body with a gunshot wound to the back of the head.

A special hearing operates differently from a standard criminal trial. The court must acquit unless it is proved to the requisite criminal standard that, on the limited evidence available, the accused committed the offence. Additionally, any defence that could properly be raised at an ordinary trial, including a defence of mental illness, remains available to the accused.

  • Whether the prosecution had proved beyond reasonable doubt, on the limited evidence available, that the accused committed the offence of murder (Count 1)
  • Whether the defence of mental illness was established in respect of the murder charge, and if so, what verdict should follow
  • Whether the accused's mental condition was a relevant consideration in determining the length of the limiting term to be imposed
  • Whether the defence of mental illness was also available and applicable to the additional charges of soliciting murder and perverting the course of justice (Counts 2 and 3)

Decision

On the murder count, the court was satisfied beyond reasonable doubt on the limited evidence available that the accused committed the offence. The evidence included the accused's own admissions to his partner, the manner in which the deceased was taken to a bush location, the method of killing described, and the subsequent discovery of the body in the location and condition consistent with those admissions.

However, the court then considered the defence of mental illness. Applying the test in M'Naghten (as adopted in Australian law through cases such as R v Porter and Stapleton v The Queen), the court assessed whether, at the time of the act, the accused was suffering from a defect of reason arising from a disease of the mind such that he did not know the nature and quality of the act, or did not know that what he was doing was wrong. The court found the defence of mental illness established in respect of the murder charge and returned a verdict of not guilty on the ground of mental illness.

On the question of the limiting term, the court examined whether the accused's mental condition at the time of the offence was a relevant factor in calibrating that term. Drawing on authorities including R v Mailes, Courtney v R, and Gore v R, the court engaged with the principle that a limiting term notionally corresponds to the sentence that would have been imposed upon a finding of guilt, but with recognition that the mental illness context affects the calculus. The court ultimately imposed a limiting term in respect of the murder count.

For Counts 2 and 3 (soliciting murder and the false evidence offence), the court considered whether the defence of mental illness was equally available and, on the evidence before it, determined the appropriate outcomes for those charges, including whether the limited evidence supported findings that the accused committed those offences and whether the same mental illness defence applied.

Orders Made

The full text of the orders was only partially reproduced in the material provided, but the following are confirmed:

  • The accused was found not guilty on the ground of mental illness in respect of the murder charge (equivalent to a special verdict under s 38 of the Mental Health (Forensic Provisions) Act 1990)
  • A limiting term was imposed in connection with the relevant count(s)
  • The accused was ordered to be detained in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine, until released by due process of law
  • The Registrar of the Court was directed, pursuant to s 39(3) of the Mental Health (Forensic Provisions) Act 1990, to notify the Minister for Health and the Mental Health Review Tribunal of the terms of the orders

Key Takeaways

  • At a special hearing under the Mental Health (Forensic Provisions) Act 1990, a defence of mental illness remains fully available to an accused person, in the same way as it would be at an ordinary criminal trial.
  • A verdict of not guilty on the ground of mental illness at a special hearing is, by statute, equivalent for all purposes to a special verdict of not guilty by reason of mental illness under s 38 of the Act.
  • Under the framework established by authorities including R v Mailes and Courtney v R, a limiting term notionally reflects what sentence would have been imposed upon a finding of guilt, with the accused's mental condition at the time of the offence forming part of the relevant consideration.
  • The standard M'Naghten test, as applied in Australian law, governs the defence of mental illness at a special hearing: the accused must have been suffering a defect of reason from a disease of the mind such that they did not know the nature and quality of the act, or did not know it was wrong.
  • Harrison J's closing remarks acknowledged that a defence of mental illness is not a legal artifice permitting the guilty to escape consequences, but a principled recognition that criminal culpability requires proof of the requisite mental state.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 19, 21, 22, 30, 38, 39
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v M'Naghten (1843) 8 ER 718
- R v Porter [1933] HCA 1; (1936) 55 CLR 182
- Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192
- Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
- Lucas v The Queen [1970] HCA 14; (1970) 120 CLR 171
- Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584
- R v Falconer [1990] HCA 49; (1990) 171 CLR 30
- R v Kemp [1957] 1 QB 399
- R v Bell (1985) 2 NSWLR 466
- R v Stiles (1990) 50 A Crim R 13
- R v Zvonaric [2001] NSWCCA 505; (2001) 54 NSWLR 1
- R v Mailes [2004] NSWCCA 394; (2004) 62 NSWLR 181
- R v AN [2005] NSWCCA 239
- Courtney v R [2007] NSWCCA 195; (2007) 172 A Crim R 371
- Bhuiyan v R [2009] NSWCCA 221
- Gore v R; Hunter v R [2010] NSWCCA 330; (2010) A Crim R 353
- R v Kirchner [2011] NSWSC 1516
- R v Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85
- R v Wilson (No 1) [2013] NSWSC 1146
- R v Wilson (No 2) [2013] NSWSC 1288