Citation: R v Zahab [2014] NSWSC 1197
Court: Supreme Court of New South Wales
Date: 5 September 2014
Judge: Garling J
Background
The accused was charged with the murder of his father at Bankstown on 14 February 2013. Police attending the scene found the deceased at the bottom of a staircase with his head severed from his body. The accused was found standing on the staircase holding a knife and was placed under arrest following a brief physical altercation with officers.
The accused had a lengthy history of paranoid schizophrenia and had been a patient of Bankstown Community Mental Health for a number of years. In the weeks before the killing, family members observed him hallucinating, making unfounded accusations, and behaving erratically. His mother suspected he had stopped taking his medication. Notably, a District Court judge had earlier returned a verdict of not guilty on grounds of mental illness in relation to a separate offence committed by the accused in January 2012.
The accused elected to be tried by judge alone. Both the Crown and the defence submitted that the court should return a special verdict of not guilty by reason of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990. The parties agreed on all relevant facts, which were tendered in a Statement of Agreed Facts.
Legal Issues
- Whether the accused was mentally ill at the time of the killing within the meaning of the M'Naghten Rules, as applied in New South Wales
- Specifically, whether the accused was labouring under such a defect of reason, arising from a disease of the mind, that he did not know that what he was doing was wrong
- Whether the court should deal with two associated assault charges under s 166 of the Criminal Procedure Act 1986, and if so, how to dispose of them
Decision
Garling J was satisfied beyond reasonable doubt that the accused's acts caused the death of the deceased. The key question was then whether the defence of mental illness was established on the balance of probabilities.
The court applied the M'Naghten Rules as interpreted in Australian authorities, particularly R v Porter (1933) 55 CLR 182 and Stapleton v The Queen (1952) 86 CLR 358. Under those rules, the defence is established if, at the time of the act, the accused was suffering from a defect of reason caused by a disease of the mind, such that he did not know that what he was doing was wrong. "Wrong" in this context means wrong by the standards of ordinary reasonable people, not merely legally prohibited.
Psychiatric evidence before the court diagnosed the accused with paranoid schizophrenia. The agreed facts, together with the expert opinion evidence, satisfied Garling J on the balance of probabilities that at the time of the killing the accused was in the grip of a severe psychotic episode and did not know that what he was doing was wrong. The defence of mental illness was therefore established.
On the two backup assault charges, Garling J noted that both occurred immediately before and after the killing while the accused was mentally ill, that no lasting injury was caused, and that the accused had already been in custody for over 18 months. The court was satisfied it was in the interests of justice to dismiss those charges under s 166(1A) of the Criminal Procedure Act 1986.
Orders Made
- The accused was found not guilty by reason of mental illness on the single count of murder contrary to s 18 of the Crimes Act 1900.
- The assault charges on the s 166 certificate were dismissed.
- The accused was ordered to be detained at the Psychiatric Ward, Long Bay Prison Hospital, or at such other place as determined from time to time by the Mental Health Review Tribunal, until released by due process of law.
- The Registrar was directed to notify the Minister for Health of the judgment and orders.
- The Registrar was directed to notify the Mental Health Review Tribunal and to provide it with a copy of the reasons for verdict, a transcript of proceedings, and all exhibits tendered at trial.
Key Takeaways
- Under the M'Naghten Rules as applied in New South Wales, the defence of mental illness is established where an accused was, at the time of the act, suffering a defect of reason arising from a disease of the mind such that they did not know their act was wrong by the standards of ordinary reasonable people.
- A special verdict of not guilty by reason of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 is available in a judge-alone trial, and the standard of proof for the defence is the balance of probabilities.
- Where both the Crown and the defence submit that a mental illness verdict is appropriate, and the facts are agreed, the court is not bound by that agreement but may accept it where the agreed facts and expert evidence support the requisite findings.
- In a judge-alone criminal trial, s 133(2) of the Criminal Procedure Act 1986 requires the judge to expose the principles of law applied and the findings of fact relied upon, though this obligation does not require the judgment to take the form of a jury summing-up.
- Concerning subsidiary charges on a s 166 certificate, the court may dismiss those charges under s 166(1A) where the interests of justice favour final disposition, taking into account factors such as the accused's mental illness at the time, the minor nature of the offences, and the period already spent in custody.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 18, s 86
- Criminal Procedure Act 1986 (NSW), ss 132, 133, 166
- Evidence Act 1995 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39
Cases:
- R v M'Naghten (1843) 8 ER 718
- R v Porter [1933] HCA 1; (1933) 55 CLR 182
- Stapleton v The Queen [1952] HCA 55; (1952) 86 CLR 358
- Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659
- Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
- Regina v Matheis (1958) 58 SR (NSW) 321
- R v Matusevich & Thompson [1976] VR 470
- R v Winningham (unreported, NSWCCA, 10 May 1995)
- R v Huy Pham [2007] NSWSC 1313
- R v Coles [2008] NSWSC 682