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Supreme Court 8 May 2015

R v Thomas

[2015] NSWSC 537

Assault & violenceHomicide
CRIMINAL LAW ACCUSED UNFIT TO PLEAD SPECIAL HEARING JUDGE ALONE MANSLAUGHTER MANSLAUGHTER

Citation: R v Thomas [2015] NSWSC 537
Court: Supreme Court of New South Wales
Date: 8 May 2015
Judge: R A Hulme J

Background

The accused, a man with a moderate intellectual disability, was adopted from Chile as a young child and raised in western Sydney. He had been assessed as functioning below 99.9 per cent of the population, with extremely limited attention, very poor information processing speed, and impaired conceptual reasoning. His adopted mother had been diagnosed with breast cancer that had metastasised, and by late January 2013 she had only weeks to live.

On 31 January 2013, a family argument arose about the accused's loss of his job as a kitchen hand. The argument continued after the family returned home, where the mother was confined to bed. After the father left the room, the mother called out to the accused to continue the discussion. The accused entered her room and struck her twice to the face. She was taken to hospital and died later that day from an intracranial haemorrhage, the fatal outcome significantly contributed to by her extremely low platelet count caused by her advanced cancer.

The accused had previously been found unfit to be tried. Because the Mental Health Review Tribunal determined he would not become fit within twelve months, and the Director of Public Prosecutions declined to discontinue proceedings, the Supreme Court was required to conduct a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW).

  • Whether the special hearing procedure under the Mental Health (Forensic Provisions) Act 1990 (NSW) was properly engaged, and how a verdict should be returned in those circumstances.
  • Whether the Crown proved beyond reasonable doubt that the accused committed manslaughter by an unlawful and dangerous act, specifically whether the act of striking his seriously ill mother satisfied the dangerousness test.
  • How the dangerousness test applies when the accused has a significant intellectual disability: whether the accused's disability is to be attributed to the "reasonable person" when assessing whether a reasonable person in the accused's position would have appreciated that the act created an appreciable risk of serious injury.
  • Whether the Crown proved beyond reasonable doubt that the accused committed the alternative offence of recklessly causing grievous bodily harm under s 35(2)(b) of the Crimes Act 1900 (NSW).

Decision

The special hearing framework. His Honour confirmed the applicable statutory framework. A special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) is conducted as nearly as possible as a criminal trial, with the accused presumed innocent and the Crown bearing the burden of proof beyond reasonable doubt. The available verdicts are limited: the accused may only be found to have committed the offence "on the limited evidence available." Hulme J confirmed he had regard to the accused's unfitness and its practical consequences throughout the hearing.

Manslaughter: the dangerousness test. To establish manslaughter by an unlawful and dangerous act, the Crown must prove that a reasonable person in the accused's position would have appreciated that the act created an appreciable risk of serious injury. His Honour examined how the dangerousness test applies to an accused with significant intellectual disability. Drawing on the High Court's reasoning in cases such as Stingel v The Queen and Wilson v The Queen concerning the provocation defence, and the Victorian approach in R v Besim and DPP (Vic) v TY, Hulme J concluded that the accused's intellectual disability should be attributed to the reasonable person for the purposes of the dangerousness test. The question therefore became whether a reasonable person with the accused's level of intellectual disability would have appreciated that striking his severely ill and medically vulnerable mother created an appreciable risk of serious injury.

Manslaughter: not proved beyond reasonable doubt. Applying the modified test, his Honour found the Crown had not proved beyond reasonable doubt that a reasonable person with the accused's intellectual disability would have appreciated that the blows created a risk of serious injury. The expert evidence established that, while the accused likely understood the punch would cause pain, he was unlikely to have contemplated any complications or further serious consequences. A verdict of not guilty of manslaughter was returned.

Reckless grievous bodily harm: proved. On the alternative charge of reckless causing of grievous bodily harm under s 35(2)(b) of the Crimes Act 1900 (NSW), his Honour was satisfied beyond reasonable doubt that the accused struck his mother knowing that the blows would cause her some harm. The expert neuropsychologist's evidence supported the conclusion that the accused had the capacity to appreciate his actions would cause pain and injury, even if he did not foresee the fatal complications. This subjective recklessness was sufficient. The verdict returned was that, on the limited evidence available, the accused committed the offence of recklessly causing grievous bodily harm.

Orders Made

  • Not guilty verdict returned on the count of manslaughter.
  • On the count of recklessly causing grievous bodily harm: a finding that, on the limited evidence available, the accused committed the offence.

Key Takeaways

  • For the purposes of the dangerousness test in manslaughter by an unlawful and dangerous act, the Supreme Court held that a moderate intellectual disability is to be attributed to the "reasonable person" when assessing whether that person would have appreciated the risk of serious injury arising from the act.
  • The court distinguished between the objective dangerousness test (relevant to manslaughter) and the subjective mental state required for reckless grievous bodily harm: different tests can yield different results on the same facts.
  • A special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) is not an acquittal in the ordinary sense; a positive finding is expressed as the accused having committed the offence "on the limited evidence available," reflecting the procedural constraints imposed by the accused's unfitness.
  • Expert neuropsychological evidence played a central role in both the manslaughter and GBH analyses, informing the court's understanding of what the accused was capable of appreciating at the time of the act.
  • Where an accused's intellectual disability falls at the extreme end of the population distribution, that disability may be sufficiently relevant to the objective standard that the test effectively adjusts to the accused's actual cognitive capacities, though the precise boundaries of this principle remain subject to ongoing development across jurisdictions.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 16, 19, 21, 21A
- Crimes Act 1900 (NSW), s 35(2)(b)
- Criminal Code (Tas), s 156(2)(b)

Cases:
- Stingel v The Queen [1990] HCA 61; 171 CLR 312
- Wilson v The Queen [1992] HCA 31; 174 CLR 313
- Royall v The Queen [1991] HCA 27; 172 CLR 378
- The Queen v Lavender [2005] HCA 37; 222 CLR 67
- McHale v Watson [1966] HCA 13; 115 CLR 199
- Director of Public Prosecutions v Newbury [1977] AC 500
- R v Holzer [1968] VR 481
- R v Wills [1983] 2 VR 201
- R v Besim [2004] VSC 169; 148 A Crim R 28
- Director of Public Prosecutions (Vic) v TY [2006] VSC 494; 167 A Crim R 596
- R v Edwards [2008] SASC 303
- Lane v R [2013] NSWCCA 317
- R v Vangelder (Court of Criminal Appeal (NSW), 28 February 1994, unrep)
- R v Thomas [2014] NSWSC 1181
- Leigh Ann Russell by her next friend Julie Ann Russell v Rail Infrastructure Corporation [2007] NSWSC 402