Citation: Director of Public Prosecutions v AB [2013] NSWSC 1739
Court: Supreme Court of New South Wales
Date: 26 November 2013
Judge: Adams J
Background
The accused, found unfit to stand trial, faced a charge of murdering his former domestic partner at her home in Wingham, New South Wales on 10 July 2010. Because the accused was unfit to be tried, the matter proceeded as a special hearing under the Mental Health (Forensic Provisions) Act 1990, with the accused taken to have pleaded not guilty. The hearing was conducted by a judge sitting without a jury, and the identities of all parties were suppressed primarily to protect the couple's young daughter, who was present at the time of the killing.
That the accused shot and killed the deceased was not in dispute. The deceased had ended the relationship and moved with their daughter to separate rented premises, and the shooting occurred when the accused attended those premises on a Saturday afternoon.
The only contested questions were whether the killing amounted to murder or the lesser offence of manslaughter, on either of two alternative bases: provocation under s 23 of the Crimes Act 1900, or substantial impairment by abnormality of mind under s 23A of the same Act. A complete acquittal was not available on the evidence.
Legal Issues
- Whether the accused was acting under provocation within the meaning of s 23 of the Crimes Act 1900, so as to reduce murder to manslaughter
- Whether the accused suffered from a substantial impairment of mind arising from an underlying condition within the meaning of s 23A of the Crimes Act 1900, sufficient to warrant reducing his liability from murder to manslaughter
- What finding of guilt was appropriate in the context of a special hearing under the Mental Health (Forensic Provisions) Act 1990
Decision
Provocation: Adams J accepted it was reasonably possible that the shooting was a reaction to the deceased's conduct. However, the court was satisfied beyond reasonable doubt that the accused had not lost self-control at the time of the killing. The court pointed to the accused's behaviour before, during, and after the shooting as inconsistent with a genuine loss of self-control, including the deliberate retrieval of the rifle from his car and his apparent composure afterward. Because the first limb of the provocation defence failed, it was unnecessary to consider whether the deceased's conduct could have induced an ordinary person in the accused's position to form an intent to kill.
The court was also careful to note that, in describing the deceased's conduct from the accused's perspective, no suggestion was made that she had acted wrongly, improperly, or unfairly.
Substantial Impairment: All psychiatric evidence before the court was to the same effect: the accused's capacity to understand events, to judge whether his actions were right or wrong, and to control himself was substantially impaired by an abnormality of mind arising from an underlying condition, satisfying the first limb of s 23A(1). The remaining question, whether that impairment was so substantial as to warrant reducing murder to manslaughter, is an evaluative judgment for the tribunal of fact rather than a medical conclusion. Adams J was satisfied on the balance of probabilities that the accused's mental impairments significantly affected his judgment, including his ability to control his actions and his decision to shoot the deceased. The second limb of s 23A was therefore also satisfied.
Outcome: The court entered a qualified finding that the accused was not guilty of murder but guilty of manslaughter. As is required in special hearing proceedings, this finding does not constitute a conviction in law. A limiting term was to follow, representing the best estimate of the sentence that would have been appropriate had the accused been found guilty at a normal trial.
Orders Made
• The accused is not guilty of murder but is guilty of manslaughter.
Key Takeaways
- Under s 23 of the Crimes Act 1900, the prosecution bears the onus of proving beyond reasonable doubt that the accused was not acting under provocation; where the accused's conduct before, during, and after the killing is inconsistent with a loss of self-control, that onus can be discharged even where some reactive motive is possible.
- A finding on the second limb of the provocation defence, namely whether the deceased's conduct could have moved an ordinary person to lose self-control, only becomes necessary if the first limb (actual loss of self-control) has not already been disproved.
- Under s 23A of the Crimes Act 1900, the question of whether a mental impairment is so substantial as to warrant reducing murder to manslaughter is an evaluative judgment for the tribunal of fact, not a medical determination; unanimous psychiatric evidence on the first limb does not automatically resolve the second.
- In special hearing proceedings under the Mental Health (Forensic Provisions) Act 1990, a qualified finding of guilt does not constitute a conviction in law, and the court must instead impose a limiting term based on an estimate of the appropriate sentence.
- The effects of self-induced intoxication are to be disregarded when the tribunal of fact evaluates whether a mental impairment warrants reduction of murder to manslaughter under s 23A(3) of the Crimes Act 1900.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 23 (provocation), 23A (substantial impairment by abnormality of mind)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 21(3)(a)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases cited: No cases were cited in the judgment.