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Supreme Court 19 February 2015

R v O’Keefe

[2015] NSWSC 89

Homicide
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON MURDER TRIAL BY JUDGE ALONE ACCUSED DID PHYSICAL ACT

Citation: R v O'Keefe [2015] NSWSC 89
Court: Supreme Court of New South Wales
Date: 19 February 2015
Judge: Button J

Background

The accused was charged with the murder of his fiancée at their home on the Central Coast of New South Wales on 16 October 2013. The couple had been in a relationship since 2007 and had recently purchased a home together, which they intended as a retirement residence. The deceased was 62 years old at the time; the accused was 53.

The accused had a documented psychiatric history, including a serious psychotic episode in 2007 involving paranoid delusions, and recurring anxiety and depression in the years that followed. By October 2013, his mental health had deteriorated again following work-related stress. In the days immediately before the killing, he had voluntarily sought psychiatric assistance from hospital and community mental health services, expressing fear that another psychotic episode was imminent.

The trial proceeded before Button J alone, without a jury, pursuant to an election by the accused and consent by the Crown under s 132(2) of the Criminal Procedure Act 1986 (NSW). Both the Crown and defence supported a special verdict of not guilty on the ground of mental illness, a position underpinned by the unanimous opinions of three forensic psychiatrists.

  • Whether the accused committed the physical act that caused the deceased's death.
  • Whether the accused was suffering from a disease of the mind at the relevant time that produced a defect of reason.
  • Whether that defect of reason meant the accused did not appreciate the moral wrongfulness of his act.
  • Whether the special verdict of not guilty on the ground of mental illness was established on the evidence.

Decision

Button J found, as a matter of undisputed fact, that the accused physically caused the death of the deceased. The evidence on this point was not contested by either party.

The court then turned to the mental illness defence under ss 37 and 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), applying the long-established test from McNaghten's Case (1843) as it has been adopted in Australian law. The test requires that the accused was suffering from a disease of the mind that produced a defect of reason such that, at the time of the act, the accused either did not know the nature and quality of the act or did not know that the act was wrong. In New South Wales, "wrong" has been interpreted to mean morally wrong, not merely legally wrong: Hawkins v The Queen (1994) 179 CLR 500.

Three forensic psychiatrists gave unanimous evidence that the accused was in the grip of an acute psychotic episode at the time of the killing, suffering from paranoid delusions of a severe character. Their opinions established that the accused did not appreciate the moral wrongfulness of his act. Button J accepted that expert evidence and was satisfied that the defence of mental illness was made out.

The court returned the special verdict and made clear that the accused's freedom from criminal responsibility did not diminish the gravity of the event, the loss suffered by those close to the deceased, or the legal consequences for the accused. Immediate release was expressly excluded as inappropriate given the nature of the attack, and the accused was committed to the long-term supervision of the Mental Health Review Tribunal.

Orders Made

  • Special verdict returned: the accused is not guilty on the count of murder on the ground of mental illness.
  • The accused is to be detained at the Hamden Unit of the Metropolitan Remand and Reception Centre at Silverwater, or at such other place as determined from time to time by the Mental Health Review Tribunal, until released by due process of law.
  • The Registrar is to notify the Minister for Health of the terms of the judgment and orders as soon as reasonably practicable.
  • The Registrar is to notify the Mental Health Review Tribunal of the terms of the judgment and orders as soon as reasonably practicable, and to provide the Tribunal with a copy of the reasons, the full transcript, and all exhibits tendered at trial.

Key Takeaways

  • The Supreme Court applied the McNaghten test as received in Australian law, confirming that the mental illness defence requires a disease of the mind producing a defect of reason such that the accused lacked knowledge that the act was morally wrong.
  • Unanimous psychiatric opinion that an accused was in an acute psychotic state at the time of the killing, and did not appreciate the moral wrongfulness of the act, formed a sufficient evidentiary basis for the special verdict.
  • A special verdict of not guilty on the ground of mental illness does not result in unconditional release. Under s 43(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW), the Mental Health Review Tribunal must not release the accused into the community unless satisfied he would not seriously endanger any person, including himself.
  • Immediate release under s 39(1) of the Act, while technically available in limited circumstances, was expressly found to be wholly inappropriate given the violent nature of the offending.
  • Button J took the opportunity to explain publicly that a not guilty verdict on the ground of mental illness does not lessen the recognition by the criminal justice system of the gravity of the death or the pain caused to those who knew the deceased.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 132(2)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 37, 38, 39(1), 43(a)

Cases:
- McNaghten's Case (1843) 8 ER 718
- The King v Porter [1933] HCA 1; (1933) 55 CLR 182
- Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205
- Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500
- R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490