Citation: [2015] NSWLC 33
Court: Local Court of NSW
Date: 30 October 2015
Judge(s): Farnan LCM
Background
A defendant faced two charges arising from an incident in the early hours of 22 November 2014 at Bondi Beach. The first charge was driving dangerously while knowing (or being required by reasonable inference to know) she was being pursued by police and required to stop, contrary to section 51B of the Crimes Act 1900. The second was dangerous driving, arising from her observed driving of a black Audi at high speed along Campbell Parade, through multiple red lights.
The defendant pleaded not guilty to both charges. Her defence was that she was mentally ill at the time of the offences. Specifically, she argued that she was labouring under a delusion caused by a disease of the mind, believing she was an actor in a movie scene, such that she did not know that what she was doing was wrong.
Legal Issues
- Whether the common law defence of mental illness (the M'Naghten defence) is available in the Local Court.
- Whether the mental illness defence can apply to strict liability offences such as dangerous driving and the police pursuit offence.
- Whether the defendant discharged her onus of proving, on the balance of probabilities, that she was not guilty by reason of mental illness at the time of the offences.
- Whether, having found the mental illness defence established, the court should enter an outright verdict of not guilty by reason of mental illness or instead deal with the matter under section 32 of the Mental Health (Forensic Provisions) Act 1990.
Decision
Issue 1: Availability of the mental illness defence in the Local Court
The magistrate confirmed that the common law defence of mental illness has not been abolished and remains available in the Local Court, even though most matters involving potential mental illness are ordinarily dealt with under section 32 or section 33 of the Mental Health (Forensic Provisions) Act 1990. The decision of Berman SC DCJ in R v McMahon [2006] NSWDC 81 was cited as persuasive authority for this proposition (at [7]). The magistrate also confirmed, following R v Sandoval [2010] NSWDC 255, that the defence is available even for offences of strict liability, and the prosecution did not contest either point (at [9]-[11]).
Issue 2: Whether the prosecution could prove the driving conduct
The magistrate was satisfied that the prosecution established beyond reasonable doubt that the defendant's driving was dangerous on both occasions, and that on an objective test she ought reasonably to have known police were pursuing her and requiring her to stop (at [24]).
Issue 3: Whether the mental illness defence was made out
The magistrate accepted the uncontested expert evidence of Dr Olav Nielssen, a psychiatrist, that the defendant was suffering from schizophrenia at the time of the offences, manifesting as an acute psychotic episode (at [29]-[36]). Under her delusional belief that she was a character in a movie and that the police were actors, she did not know that her driving was wrong (at [36]). The prosecution called no expert evidence in response, and the magistrate found Dr Nielssen's opinion was not shaken in cross-examination. The court rejected the prosecution's submission that the defendant's account of drug abstinence could not be accepted on the balance of probabilities, noting that Dr Nielssen considered her conduct to be an episode of acute mental illness regardless of any drug involvement (at [35]). The defendant therefore discharged her onus of proving the mental illness defence (at [37]).
Issue 4: Outright discharge or section 32 order
A finding of not guilty by reason of mental illness in the Local Court does not attract the forensic patient provisions applicable in higher courts; it results in an outright absolute discharge (at [12]). The magistrate concluded that an outright discharge was not the outcome that best served the public interest in this case, and that it was more appropriate to deal with the defendant under section 32 of the Mental Health (Forensic Provisions) Act 1990, which permits a supervised conditional discharge (at [39]-[41]).
Orders Made
- Defendant discharged under section 32 of the Mental Health (Forensic Provisions) Act 1990, on condition that she continue to have treatment.
Key Takeaways
- The common law defence of not guilty by reason of mental illness remains available in the NSW Local Court and has not been abolished by the enactment of the Mental Health (Forensic Provisions) Act 1990, which provides only alternative mechanisms for dealing with mentally ill defendants (at [7]).
- A mental illness defence can be raised in respect of strict liability driving offences, including the police pursuit offence under section 51B of the Crimes Act 1900, even where the relevant fault element is objective rather than subjective (at [9]-[11]).
- Where the mental illness defence is established in the Local Court, a finding of not guilty by reason of mental illness produces an absolute discharge rather than the forensic patient consequences that would follow in the District Court or Supreme Court; this distinction is significant when considering the public interest outcome (at [12], [39]).
- In cases where an outright acquittal for mental illness would otherwise result, a magistrate retains the power to instead deal with the defendant under section 32 of the Mental Health (Forensic Provisions) Act 1990, including acting of the court's own motion, and this may be the more appropriate course where ongoing supervision and treatment conditions serve the public interest (at [39]-[41]).
- Uncontested psychiatric evidence that a defendant's psychotic symptoms persisted beyond the offending and resolved with antipsychotic medication in a drug-free environment was sufficient to satisfy the balance of probabilities standard for the mental illness defence, even where drug use could not be entirely excluded (at [30], [35]-[36]).
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990 s32
- Crimes Act 1900 s51B
Cases
- R v McMahon [2006] NSWDC 81
- R v Meddings [1966] VR 306
- R v Sandoval [2010] NSWDC 255
- Mantell v Molyneux [2006] 68 NSWLR 46
- R v M'Naghten (1843) 8 E.R. 718