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Supreme Court 20 June 2014

R v Opie

[2014] NSWSC 814

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

Citation: R v Opie [2014] NSWSC 814
Court: Supreme Court of New South Wales
Date: 20 June 2014
Judge(s): Fullerton J

Background

In the early hours of 22 December 2012, the accused entered the home of a 77-year-old neighbour in Guildford and fatally stabbed him with a knife approximately 30 centimetres long. The deceased's adult son, who was present in the home, witnessed the aftermath of the attack. After stabbing the deceased, the accused stabbed himself twice in the chest and, when police arrived, continued to push the knife deeper into his own body until immobilised by a taser.

The accused had lived in a nearby apartment block for between seven and nine years but had minimal contact with the deceased, having spoken to him no more than ten times. In the days following the incident, the accused made statements to hospital staff indicating long-standing paranoid beliefs about the deceased, including that the deceased had been "tormenting him" and spreading information about him for years.

The accused was charged with murder and elected to be tried by judge alone. He pleaded not guilty on the ground of mental illness. Both the Crown and defence agreed that a special verdict was open on the evidence.

  • Whether the accused had discharged the onus of establishing, on the balance of probabilities, that he was mentally ill at the time of the killing so as not to be responsible in law for his actions, pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • Specifically, whether at the time of the stabbing the accused did not know that what he was doing was wrong, by reason of a defect of reason from disease of the mind
  • What detention orders should follow from a special verdict under s 39 of the same Act

Decision

The court was satisfied, on the balance of probabilities, that the accused was suffering from a mental illness at the time of the killing that rendered him unaware of the wrongfulness of his actions. Two forensic psychiatrists, one retained by the defence and one by the Director of Public Prosecutions, both provided reports supporting this conclusion. Neither party contested the return of a special verdict.

The applicable legal test, drawn from R v Porter (1933) 55 CLR 182 and restated in R v Rodriguez [2010] NSWSC 198, required the accused to demonstrate that he was labouring under such a defect of reason from disease of the mind that he either did not know the nature and quality of his act, or did not know that the act was wrong according to the ordinary standards adopted by reasonable persons. The court applied the principle from R v Pratt [2009] NSWSC 1108 that the underlying mental condition may be temporary or longstanding, curable or incurable.

Fullerton J noted that, because the defence of mental illness was established, it was unnecessary to determine whether the requisite intent for murder (an intention to kill or to cause grievous bodily harm) had been proved. That question only becomes relevant where the mental illness defence fails.

The court also endorsed the recommendations of one of the forensic psychiatrists regarding the accused's ongoing psychiatric care, including transfer to a therapeutic unit, regular monitoring by Justice Health, prescription of appropriate medication, and hospital-based care if required under the Mental Health Act 2007 (NSW).

Orders Made

  • 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 (NSW)
  • The accused is to be detained in a correctional facility, or 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
  • The Registrar was directed to notify the Minister for Health of the orders
  • 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

Key Takeaways

  • Under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty by reason of mental illness must be returned where the accused establishes, on the balance of probabilities, that a defect of reason from disease of the mind meant they did not know their actions were wrong at the time of the offence
  • The underlying mental condition need not be permanent or incurable; temporary conditions that produce the requisite defect of reason are sufficient to ground the defence
  • Where the mental illness defence is made out, the court is not required to determine whether the Crown has proved the mental element (intent) for the underlying offence
  • A judge-alone trial is available in murder proceedings with the consent of the Director of Public Prosecutions and leave granted under s 132 of the Criminal Procedure Act 1986 (NSW)
  • A special verdict under s 38 does not result in unconditional release; s 39 of the Act empowers the court to order detention until the Mental Health Review Tribunal determines the appropriate disposition

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 22, 38, 39
- Criminal Procedure Act 1986 (NSW), s 132
- Mental Health Act 2007 (NSW)

Cases
- R v Porter [1933] HCA 1; (1933) 55 CLR 182
- R v Minani [2005] NSWCCA 226; 62 NSWLR 490
- R v Pratt [2009] NSWSC 1108
- R v Rodriguez [2010] NSWSC 198