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Supreme Court 27 February 2015

R v Colin Maxwell FARROW (No 2)

[2015] NSWSC 109

Homicide
CRIMINAL LAW MURDER TRIAL BY JUDGE ALONE WHETHER ACCUSED GUILTY OR NOT GUILTY DEFENSE OF MENTAL ILLNESS

Citation: R v Colin Maxwell Farrow (No 2) [2015] NSWSC 109
Court: Supreme Court of New South Wales
Date: 27 February 2015
Judge: Rothman J

Background

The accused was charged with murdering a woman on 11 April 2013 in the Wollongong area. The deceased was a drug user and dealer in crystal methamphetamine ("ice"), and the accused had known her through that network since mid-2012. Their relationship had deteriorated in the months before her death, partly connected to a falling-out the accused had with a mutual friend.

Evidence established that the accused had purchased items including rope, tape, glue, and a sharpening stone two days before the killing. On the morning of 11 April 2013, he was seen walking purposefully toward the deceased's unit. Witnesses nearby heard sounds from inside the premises but received no response at the door. The deceased was subsequently found stabbed to death.

The accused applied for a trial by judge alone, which Rothman J ordered despite the Crown's non-agreement. As required in such trials, the judgment sets out the applicable legal principles and factual findings that formed the basis of the verdict.

  • Whether the Crown proved beyond reasonable doubt each element of murder.
  • Whether the accused established, on the balance of probabilities, the defence of mental illness (legal insanity), specifically that he did not know the nature or quality of his acts, or did not know they were wrong by the ordinary standards of reasonable people.
  • Whether the defence of substantial impairment by abnormality of mind was relevant (it was not raised by defence counsel and the court addressed it briefly).

Decision

Rothman J was satisfied beyond reasonable doubt that the accused had committed the acts constituting murder. The circumstantial and direct evidence, including the accused's movements, the pre-purchased items, and his presence at the scene, supported that conclusion.

On the mental illness defence, the accused bore the onus of proving on the balance of probabilities that, at the time of the killing, he did not know the nature or quality of the act, or did not know it was wrong. Expert psychiatric evidence was called on both sides. The court preferred the opinion of Professor Greenberg over that of the other expert, primarily because Professor Greenberg had examined more of the material, had viewed the accused's electronically recorded interview (ERISP), and his assessment aligned with the court's own assessment of the accused's credibility in that interview.

Rothman J found that the accused's answers in the ERISP displayed deliberate dissembling rather than genuine memory loss, noting the accused appeared to perform honesty while concealing recollection. While the court accepted that long-term drug use had produced some psychosis in the accused, it was not satisfied that he was so delusional at the time of the stabbing as to be unaware that what he was doing was wrong by community standards. The mental illness defence therefore failed.

The court also briefly addressed the decision not to raise substantial impairment as a partial defence. Rothman J considered that decision correct, as the evidence did not support an inability to resist impulse or other relevant diminished responsibility.

Orders Made

  • The accused was found guilty of the murder of Linda Stevens on 11 April 2013.

Key Takeaways

  • In a judge-alone criminal trial in New South Wales, the judge must deliver a verdict that includes the principles of law applied and the factual findings underpinning it, as if the outcome were one a jury could have reached.
  • The defence of mental illness (legal insanity) requires the accused to prove on the balance of probabilities that, at the time of the offence, they did not know the nature or quality of their act or did not know it was wrong by ordinary community standards. Long-term drug-induced psychosis does not automatically satisfy this test.
  • Where competing expert psychiatric opinions are before the court, the tribunal of fact may prefer one expert over another based on the breadth of material reviewed, the expert's direct engagement with interview recordings, and the court's own assessment of the accused's credibility.
  • Evidence of drug use by an accused is not, without more, probative of a propensity to commit crime, and a court conducting a judge-alone trial must expressly remind itself of that limitation.
  • Substantial impairment by abnormality of mind operates as a separate partial defence to murder and requires distinct factual foundations. The court noted the defence counsel's decision not to raise it was correct on the evidence presented.

Legislation and Cases Referenced

Cases:
- Broadhurst v R [1964] AC 441
- Edwards v R [1993] HCA 63; (1993) 178 CLR 193
- FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754
- R v Farrow [2014] NSWSC 1781 (the earlier ruling ordering trial by judge alone)
- Tripodi v R [1961] ALR 780; (1961) 104 CLR 1

Legislation: No specific legislation was cited in the provided text, though the Mental Health Review Tribunal regime and its composition were described by reference to the applicable statutory framework.