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Supreme Court 24 February 2015

R v Aller

[2015] NSWSC 178

HomicideDomestic & family violence
CRIMINAL LAW SPECIAL HEARING MURDER ISSUE OF SUBSTANTIAL IMPAIRMENT

Citation: R v Aller [2015] NSWSC 178
Court: Supreme Court of New South Wales
Date: 24 February 2015
Judge: Hidden J

Background

The accused was charged with the murder of his intimate partner at Narara on 31 July 2012. The two had been in a relationship for approximately two months before the killing. It was not disputed that the accused stabbed the deceased repeatedly with a kitchen knife during an argument, causing her death.

The accused was found unfit to stand trial due to mental illness. As a result, the matter proceeded as a special hearing under the Mental Health (Forensic Provisions) Act 1990, conducted by a judge sitting alone. In a special hearing, the judge's task is to determine whether, on the limited evidence available, it has been proved beyond reasonable doubt that the accused committed the offence charged or an alternative offence.

The accused had a lengthy history of alcohol dependence, a troubled personal history marked by domestic violence, and prior psychiatric admissions. He was 46 years old at the time of the killing.

  • Whether the elements of murder were established beyond reasonable doubt in the special hearing.
  • Whether the accused had established the partial defence of substantial impairment under s 23A of the Crimes Act 1900, so as to reduce murder to manslaughter.
  • Whether the accused's underlying psychiatric condition, rather than voluntary alcohol consumption, was the operative factor in his loss of self-control at the time of the killing.

Decision

Hidden J was satisfied beyond reasonable doubt that the accused stabbed the deceased with intent to cause at least really serious bodily harm, thereby establishing the elements of murder. This was not contested. The entire focus of the hearing fell on whether the partial defence of substantial impairment was made out.

The court received expert psychiatric evidence from two forensic psychiatrists. Dr Richard Furst, engaged by the defence, had interviewed the accused on six occasions and provided two reports. Dr Olav Nielssen, engaged by the Crown, saw the accused twice and prepared a report. Both experts gave oral evidence. Their views diverged on the question of whether the accused had an underlying psychiatric condition operating at the time of the killing.

Hidden J preferred the evidence of Dr Furst, describing it as "very considered." The court accepted Dr Furst's opinion that the accused suffered from an underlying psychiatric condition, and that this condition was the operative factor in his catastrophic loss of self-control. The ferocity of the attack was characterised as entirely disproportionate to the argument, pointing to an abnormal state of mind satisfactorily explained by that underlying condition. The court found it unnecessary to resolve whether the accused had also heard voices at the time of the killing.

On the question of alcohol, the court accepted a submission that the accused's chronic alcoholism and long-term tolerance may have meant that his consumption that day did not produce marked intoxication. Accordingly, the court was satisfied on the balance of probabilities that the substantial impairment arose from an underlying condition rather than voluntary intoxication, and that the impairment was so substantial as to warrant reducing murder to manslaughter.

Orders Made

  • The accused was found not guilty of murder.
  • The court found that, on the limited material available, the accused committed the offence of manslaughter.

Key Takeaways

  • Under s 23A of the Crimes Act 1900, substantial impairment operates as a partial defence reducing murder to manslaughter where the accused establishes, on the balance of probabilities, an abnormality of mind arising from an underlying condition that substantially impaired the capacity for self-control.
  • A special hearing under the Mental Health (Forensic Provisions) Act 1990 requires the court to determine, on limited evidence, whether the elements of the charged offence or an alternative offence are proved beyond reasonable doubt; the partial defence of substantial impairment remains available in that process.
  • Where competing psychiatric opinions were before the court, Hidden J resolved the conflict by examining the quality and thoroughness of each expert's assessment, preferring the opinion grounded in more extensive clinical contact with the accused.
  • The disproportionate ferocity of an attack, far exceeding what any provocation could reasonably explain, may itself support an inference of an abnormal state of mind for the purposes of the substantial impairment defence.
  • Chronic alcoholism and the associated tolerance it produces may be relevant when assessing the degree of impairment caused by alcohol consumption on a particular occasion, as distinct from the question of whether an underlying psychiatric condition contributed to impaired self-control.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment defence)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 19 (special hearings)
- Mental Health Act 2007 (NSW)

Cases:
- Potts v R [2012] NSWCCA 229, 227 A Crim R 217 (referred to on the threshold for reducing liability under the substantial impairment defence)