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Supreme Court 23 October 2015

R v Brewer (No. 2)

[2015] NSWSC 1547

Homicide
CRIMINAL LAW OFFENCES MURDER WHERE ACCUSED CHARGED WITH MURDER LEGAL PRACTITIONERS DUTIES AND RESPONSIBILITIES OF COUNSEL

Citation: R v Brewer (No. 2) [2015] NSWSC 1547
Court: Supreme Court of New South Wales
Date: 23 October 2015
Judge: Bellew J

Background

The accused was charged with the murder of a real estate agent at Pendle Hill on 13 March 2014. CCTV footage and witness accounts captured the accused entering an arcade connected to the deceased's premises, engaging in a series of physical confrontations with the deceased, and ultimately stabbing him. The deceased was pronounced dead at Westmead Hospital shortly after arrival.

The trial proceeded before a judge alone, with the Crown's consent, under s 133 of the Criminal Procedure Act 1986. The accused pleaded not guilty. Psychiatric experts retained by both the Crown and the defence independently formed the view that a defence of mental illness was available on the evidence.

A significant procedural complication arose: the accused gave evidence asserting that he was not mentally ill, and he had specifically instructed his counsel not to pursue a mental illness defence. Despite those instructions, the defence arose on the evidence and Bellew J considered it his responsibility to address it.

  • Whether the accused had committed the acts constituting the physical elements of the offence (largely undisputed on the facts)
  • Whether the accused was suffering from a mental illness at the time of the stabbing such that he did not know that what he was doing was wrong
  • Whether the court had a duty to consider a defence of mental illness where it arose on the evidence, even though the accused had instructed counsel not to raise it and personally denied being mentally ill

Decision

Bellew J accepted the evidence of the two independent psychiatrists, Dr O'Dea (retained by the defence) and Dr Allnutt (retained by the Crown), both of whom concluded that the accused was suffering from schizophrenia at the relevant time and that the defence of mental illness was available. His Honour rejected the evidence of a third psychiatrist, Dr Zinatsa, who had reached a different conclusion, finding that opinion less persuasive in the context of the other expert evidence.

The Crown made a faint submission that CCTV footage showed the accused appearing to act "normally" prior to the stabbing, and that he was coherent when speaking to police afterwards. The Crown ultimately conceded, however, that Dr Allnutt had specifically addressed the fact that a person suffering from schizophrenia may appear objectively normal, and that there was limited scope to go beyond the expert evidence on the mental illness question.

His Honour was satisfied that, at the time of the stabbing, the accused was suffering from a schizophrenic illness that caused him not to know that what he was doing was wrong. That satisfaction established the defence of mental illness under the longstanding test drawn from R v Porter (1933) 55 CLR 182 and R v McNaughten (1843) 8 ER 718.

On the procedural question, Bellew J affirmed that the court carries a responsibility to consider a defence of mental illness where the evidence raises it, notwithstanding a defendant's personal objection to the defence being run or instructions to counsel to that effect.

Orders Made

  • The accused was found not guilty of murder on the grounds of mental illness.
  • The accused was ordered to be detained pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine, until released by due process of law.
  • The Registrar was directed to notify the Minister for Health and the Mental Health Review Tribunal of the orders.

Key Takeaways

  • Where psychiatric evidence establishes that a defence of mental illness is available, the court carries an independent responsibility to consider that defence, even where the accused has personally denied mental illness and has instructed counsel not to pursue it.
  • The mental illness defence requires satisfaction that, at the time of the relevant act, the accused was suffering from a disease of the mind that caused them not to know that what they were doing was wrong, drawing on the test in R v Porter (1933) 55 CLR 182.
  • Concurring opinions from psychiatrists retained by both sides, reaching the same conclusion on the mental illness question, carried significant weight and left little room to depart from those findings on the basis of lay observations from CCTV footage.
  • A not guilty verdict on grounds of mental illness does not result in unconditional release. Under s 39 of the Mental Health (Forensic Provisions) Act 1990, the accused is detained until released by due process of law, with the Mental Health Review Tribunal overseeing that process.
  • In a judge-alone trial under s 133 of the Criminal Procedure Act 1986, the judge is required to expose the reasoning process by linking the applicable principles of law to the findings of fact, though this does not require restating every direction that would ordinarily be given to a jury.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 133
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 39

Cases
- R v McNaughten (1843) 8 ER 718
- R v Porter [1933] HCA 1; (1933) 55 CLR 182
- Flemming v R [1998] HCA 68; (1998) 197 CLR 250
- Markou v R [2012] NSWCCA 64; (2012) 221 A Crim R 78
- W v R [2014] NSWCCA 110
- R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490
- Dezfouli v R [2007] NSWCCA 86
- R v Afele [2014] NSWSC 366
- R v Stables [2014] NSWSC 697
- R v Winner (1995) 79 A Crim R 528
- R v S [1979] 2 NSWLR 1
- R v Foy (1922) 39 WN (NSW) 20