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Supreme Court 24 February 2014

R v McKellar (No 4)

[2014] NSWSC 107

Assault & violenceHomicideTheft & property
CRIMINAL LAW SPECIAL HEARING COUNTS OF AGGRAVATED ROBBERY AND MURDER REASONS FOR VERDICT

Citation: R v McKellar (No 4) [2014] NSWSC 107
Court: Supreme Court of New South Wales
Date: 24 February 2014
Judge(s): Button J

Background

The accused faced three counts on indictment arising from events in Bourke, New South Wales, in May 2011. The proceedings were conducted as a special hearing under the Mental Health (Forensic Procedures) Act 1990 (NSW), a procedure used when an accused person is found unfit to stand trial but where the court must still determine whether the person committed the alleged offence. The hearing proceeded before Button J sitting alone, as neither party elected for a jury.

Shortly after the special hearing commenced, the accused voluntarily left. Button J permitted the hearing to continue in his absence (addressed in a companion judgment, R v McKellar (No 2)). The accused's senior counsel remained throughout and participated in full.

The third count was resolved by a verdict by direction at the close of the Crown case (addressed in R v McKellar (No 3)). The two remaining counts were: aggravated robbery with grievous bodily harm on 21 May 2011, and the murder of the same victim on 23 May 2011, an 81-year-old man who resided next door to a property where the accused had been staying.

  • Whether the Crown had proved beyond reasonable doubt that the accused committed aggravated robbery whilst armed with an offensive weapon, followed immediately by the infliction of grievous bodily harm, contrary to s 98 of the Crimes Act 1900 (NSW)
  • Whether the Crown had proved beyond reasonable doubt that the accused murdered the victim, either on the basis of intentional murder (with intent to kill or cause grievous bodily harm) or constructive (felony) murder under s 18 of the Crimes Act 1900 (NSW)
  • Whether the voluntary acts of the accused, including while possibly affected by prohibited substances, satisfied the voluntariness element common to both offences
  • What legal principles apply in a special hearing conducted under the Mental Health (Forensic Procedures) Act 1990 (NSW), including the standard of proof and the obligation to give reasons

Decision

Button J applied the standard criminal standard of proof, confirming that the Crown bore the onus of establishing all essential elements beyond reasonable doubt and that the accused bore no burden. His Honour set out the elements of each offence in detail, including the definition of offensive weapon under s 4 of the Crimes Act, the requirements for robbery, and the two distinct bases for murder advanced by the Crown.

On count one, the court found that the evidence established beyond reasonable doubt that the accused, armed with a 35 cm knife, robbed the victim of $50 and immediately afterwards inflicted grievous bodily harm upon him. His Honour confirmed that intention to cause grievous bodily harm is not an element of the aggravated robbery offence under the relevant provision.

On count two, the court was satisfied beyond reasonable doubt of intentional murder on the first Crown basis. Button J drew on several factors to infer the requisite intention to at least inflict grievous bodily harm: the accused's expressed intention to kill immediately before the stabbing, the nature of the weapon, the number of injuries inflicted, the location of three serious wounds near vital organs, and in particular the depth of one injury. His Honour accepted that the injuries may have occurred during a struggle and that the accused may have been affected by substances, but found those circumstances did not negate the inference of intent. Given that finding, Button J declined to also analyse the constructive murder basis.

The verdicts were expressed in the form required by s 22 of the Mental Health (Forensic Procedures) Act 1990 (NSW): that "on the limited evidence available, the accused committed the offence charged." This formulation reflects the statutory nature of a special hearing, which does not result in a conviction in the ordinary sense.

Orders Made

  • On count one (aggravated robbery with grievous bodily harm): verdict that, on the limited evidence available, the accused committed the offence charged
  • On count two (murder): verdict that, on the limited evidence available, the accused committed the offence charged

Key Takeaways

  • A special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) proceeds as nearly as possible to a criminal trial, but verdicts are expressed as findings that the accused "committed the offence on the limited evidence available," not as convictions in the ordinary sense.
  • The standard of proof in a special hearing remains proof beyond reasonable doubt, and the accused bears no onus to establish innocence or disprove any element of the charges.
  • Intent to inflict grievous bodily harm is not an element of the aggravated robbery offence under s 98 of the Crimes Act 1900 (NSW); the Crown need only establish the robbery and the subsequent infliction of grievous bodily harm.
  • Where intentional murder is established on the evidence, a court is not obliged to proceed to also consider constructive (felony) murder, even where that alternative basis was advanced by the Crown.
  • Possible intoxication or drug use at the time of the offence does not automatically negate a finding of intent; the court will assess all surrounding circumstances, including pre-offence statements and the nature and location of injuries, in drawing inferences about the accused's state of mind.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4, 18, 96, 98
- Criminal Procedure Act 1986 (NSW), s 306X
- Evidence Act 1995 (NSW), s 165
- Mental Health (Forensic Procedures) Act 1990 (NSW), ss 21, 21A, 21B, 22

Cases:
- R v McKellar (No 2) [2014] NSWSC 105
- R v McKellar (No 3) [2014] NSWSC 106
- R v Zvonaric [2001] NSWCCA 505; 54 NSWLR 1
- Fleming v R [1998] HCA 68; 197 CLR 250
- Penza and Di Maria v Regina [2013] NSWCCA 21
- Ryan v R [1967] HCA 2; 121 CLR 205
- Shepherd v The Queen [1990] HCA 56; 170 CLR 573
- Azzopardi v The Queen [2001] HCA 25; 205 CLR 50
- Edwards v The Queen [1993] HCA 63; 178 CLR 193
- RPS v The Queen [2000] HCA 3; 199 CLR 620
- R v Cook [2004] NSWCCA 52
- R v Lane [2011] NSWCCA 157