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Supreme Court 10 April 2013

R v Lancaster

[2013] NSWSC 322

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

Citation: R v Lancaster [2013] NSWSC 322
Court: Supreme Court of New South Wales
Date: 10 April 2013
Judge: Fullerton J

Background

Shortly after midnight on 16 March 2011, a 57-year-old man was fatally attacked in his bed at a rural property at West Kempsey. The accused had been invited to reside on the property as a non-paying boarder only a week or so before the killing, after the deceased and his de facto partner met him at a local music event. The de facto partner witnessed the attack, attempted unsuccessfully to intervene and call emergency services, and fled into surrounding bushland in fear for her life.

The deceased sustained severe injuries, including at least nine blunt force blows to the head inflicted with a U-shaped iron shackle, deep incised wounds to the neck from a meat cleaver, and electrical cords bound around his neck. It was not in dispute that the accused caused these injuries and dragged the body from the bedroom to the veranda.

The accused was charged with murder and, with the consent of the Director of Public Prosecutions and leave granted under s 132 of the Criminal Procedure Act 1986, elected to be tried by judge alone. He pleaded not guilty on the grounds of mental illness.

  • Whether the accused had discharged the onus of establishing, on the balance of probabilities, that he was not guilty of murder by reason of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 (a "special verdict").
  • Whether, given the special verdict was sought, it was necessary to determine whether the requisite intent for murder had been established.
  • What order should follow if a special verdict was returned, having regard to the accused's safety and the safety of the community.

Decision

The sole issue at trial was whether the accused had established, on the probabilities, that at the time of the killing he was suffering from a mental illness that deprived him of the capacity to know that his actions were wrong. Two forensic psychiatrists, one retained by the defence and one by the Crown, both concluded that the accused was suffering from such a mental illness at the relevant time. The Crown did not oppose the entry of a special verdict.

Fullerton J was satisfied that the defence of mental illness was made out. Because the special verdict was established, there was no need to determine whether the accused had the requisite intent for murder (either an intention to kill or to inflict grievous bodily harm). This approach followed the Court of Criminal Appeal's holding in R v Minani that the question of intent only arises if the mental illness defence is not first established.

On the question of what order should follow, the accused's counsel did not submit that release into the community was appropriate, and the evidence provided no basis for finding that such release would not seriously endanger the accused's own safety or the safety of others. Fullerton J accordingly ordered detention under the supervision of the Mental Health Review Tribunal until released by due process of law.

Orders Made

  1. A special verdict of not guilty of the charge of murder by reason of mental illness was returned pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990.
  2. The accused was ordered 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, pursuant to s 39 of the Act.
  3. The Registrar was directed to notify the Minister of Health of the orders.
  4. The Registrar was directed to notify the Mental Health Review Tribunal of the verdict and orders, and to provide the Tribunal with a copy of the reasons, orders, and exhibits from the special hearing.

Key Takeaways

  • A special verdict of not guilty on the grounds of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 requires the accused to establish, on the balance of probabilities, that at the time of the offence they were suffering from a mental illness that deprived them of the capacity to know their actions were wrong.
  • Where the mental illness defence is made out, the court is not required to determine whether the prosecution had established the requisite intent for murder. This principle, confirmed in R v Minani [2005] NSWCCA 226, means the intent question is only reached if the mental illness defence fails.
  • The Supreme Court noted its obligation to consider the legal and practical consequences of a special verdict, including the effect on the accused's liberty and the safety of the community, before making any consequential order.
  • Under s 39 of the Mental Health (Forensic Provisions) Act 1990, where the evidence does not support a finding that release would be safe, the court must order detention under the supervision of the Mental Health Review Tribunal. The Tribunal reviews the matter as soon as practicable and at six-monthly intervals thereafter.
  • The Mental Health Review Tribunal cannot order release unless satisfied that neither the accused's safety nor the safety of any member of the public would be seriously endangered, and must notify the Minister of Health and the Attorney General before doing so.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 22, 38, 39
- Criminal Procedure Act 1986 (NSW), s 132

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