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Supreme Court 30 July 2015

R v Webber

[2015] NSWSC 1052

Homicide
CRIMINAL LAW OFFENCES AGAINST THE PERSON MURDER TRIAL BY JUDGE ALONE DEFENCE OF MENTAL ILLNESS

Citation: R v Webber [2015] NSWSC 1052
Court: Supreme Court of New South Wales
Date: 30 July 2015
Judge(s): Campbell J

Background

The accused was charged with the murder of a 22-year-old man at a bus stop in Brookvale, NSW, on 2 May 2012. The two men were strangers. Without provocation, the accused attacked the deceased with a long carving knife, stabbing him twice in the chest. The deceased died shortly after arriving at Royal North Shore Hospital.

The accused elected a judge-alone trial, with the Crown's consent, under the Criminal Procedure Act 1986 (NSW). He pleaded not guilty by reason of mental illness. It was not disputed that he had carried out the stabbing, nor that he had suffered from paranoid schizophrenia for some years before the killing, with the illness largely untreated at the time.

The sole live issue at trial was whether the accused's mental illness at the time of the killing was severe enough to satisfy the legal requirements of the mental illness defence.

  • Whether the stabbing was a deliberate, voluntary act (the threshold factual question before the mental illness defence could be considered)
  • Whether the accused was criminally responsible for the killing, having regard to the mental illness defence under the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • Whether the accused understood the nature and quality of his act, or, if he did, whether he understood that it was wrong
  • Whether the accused should be detained following a special verdict, and on what terms

Decision

Campbell J approached the issues in the sequence required by the High Court's decision in Hawkins v The Queen: first, whether the act was deliberate; and second, whether criminal responsibility attached. On the first question, the evidence was overwhelming and undisputed. The stabbing was a willed and voluntary act.

On the second question, his Honour applied the test from The King v Porter (1933), drawing on the foundational rules in R v McNaghten (1843). To establish the mental illness defence, it must be clearly proved that at the time of the act, the accused was labouring under such a defect of reason, arising from a disease of the mind, that he either did not know the nature and quality of his act, or did not know that what he was doing was wrong. The burden of establishing this defence rests on the accused on the balance of probabilities.

His Honour was satisfied that the accused suffered from a severe case of paranoid schizophrenia and, critically, that at the time of the killing he did not understand the wrongfulness of his act. This finding was sufficient to establish the mental illness defence, making it unnecessary to consider the element of intention or any alternative defence of substantial impairment.

Campbell J emphasised that a special verdict is not the same as a plain acquittal. He noted the accused's illness appeared treatment-resistant and that he remained unwell. The Court was not satisfied the accused did not present a danger to himself or others, and accordingly declined to release him into the community. The accused was instead committed to the long-term supervision of the Mental Health Review Tribunal.

Orders Made

  • Under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty of murder by reason of mental illness was returned.
  • Under s 39 of the Act, 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.
  • 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 special verdict and orders, and to provide the Tribunal with a copy of the reasons, orders, and exhibits.

Key Takeaways

  • The mental illness defence in NSW requires the accused to prove, on the balance of probabilities, either that they did not know the nature and quality of their act, or that they did not know it was wrong. The standard of proof is less demanding than the Crown's burden, but the elements are not easily satisfied.
  • Under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty by reason of mental illness is a distinct third category of verdict, separate from both "guilty" and "not guilty." A person who receives a special verdict does not simply walk free.
  • Where a special verdict is returned, the court may detain the accused under s 39 of the Act. The court cannot release the accused into the community unless satisfied that neither that person's safety nor the safety of any member of the public will be seriously endangered.
  • Following a special verdict, ongoing supervision falls to the Mental Health Review Tribunal, which must review the forensic patient at least every six months and may not order release without satisfying the statutory safety threshold and giving the Minister for Health and Attorney General an opportunity to make submissions.
  • In a judge-alone criminal trial under s 133 of the Criminal Procedure Act 1986 (NSW), the judge is required to set out the principles of law and findings of fact relied upon, and to take into account any warnings that would ordinarily be given to a jury.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39, 43

Cases
- Alford v Magee (1952) 85 CLR 437
- Hawkins v The Queen [1994] HCA 28; 179 CLR 500
- The King v Porter [1933] HCA 1; 55 CLR 182
- R v Jenkins (1963) 64 SR (NSW) 20
- R v McNaghten (1843) 8 ER 718 (referenced in reasoning)