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Supreme Court 21 October 2016

R v Moyano (No 2)

[2016] NSWSC 1485

Homicide
CRIMINAL LAW MURDER SPECIAL HEARING DEFENCE OF MENTAL ILLNESS ESTABLISHED VERDICT SPECIAL VERDICT ENTERED

Citation: R v Moyano (No 2) [2016] NSWSC 1485
Court: Supreme Court of New South Wales
Date: 21 October 2016
Judge: Schmidt J

Background

The accused was charged with the murder of a fellow resident at a boarding house in Wetherill Park on 5 December 2014. The accused had fatally stabbed the deceased multiple times with a large kitchen knife following an argument that arose after the deceased asked him to retrieve some outdoor furniture he had thrown into a neighbour's yard.

In September 2015, Mathews AJ found the accused unfit to be tried due to serious mental illness, and the matter was referred to the Mental Health Review Tribunal. The Tribunal twice adjourned the fitness hearing to allow treatment and medication to take effect, but in July 2016 determined that the accused remained unfit and was unlikely to become fit within 12 months.

The Director of Public Prosecutions then notified the Court of his intention to proceed by way of a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW). The accused did not elect a jury, so the special hearing was conducted before Schmidt J sitting alone.

  • Whether the Crown proved beyond reasonable doubt that the accused's deliberate act caused the deceased's death.
  • Whether the accused established the defence of mental illness on the balance of probabilities, specifically that at the time of the killing he did not know that what he was doing was wrong, as a result of a mental illness.
  • What verdict and orders were appropriate under the Mental Health (Forensic Provisions) Act 1990 (NSW).

Decision

Schmidt J was satisfied beyond reasonable doubt that the accused killed the deceased by repeatedly stabbing him with a knife. This element was not in dispute, and was supported by eyewitness accounts, police evidence, the accused's own recorded statement, and autopsy findings.

On the mental illness defence, both forensic psychiatrists who examined the accused, Dr Olav Nielssen and Dr Adam Martin, agreed that he was suffering a serious mental illness at the time of the killing and did not know that what he was doing was wrong in the sense described in R v Porter (1933) 55 CLR 182. That test, drawn from M'Naghten's Case, asks whether the accused, through a disease or defect of the mind, was unable to reason with a moderate degree of sense and composure about whether the act was right or wrong by everyday standards. There was no dispute between the parties on this point.

Because the evidence established the defence of mental illness on the balance of probabilities, Schmidt J was required under s 38 of the Forensic Provisions Act to enter a special verdict of not guilty on the ground of mental illness. The court then turned to the appropriate order under s 39, noting that release was only possible through the Mental Health Review Tribunal and only where the Tribunal was satisfied that neither the accused's safety nor the safety of any member of the public would be seriously endangered.

Orders Made

  • The accused is to be detained in a correctional facility, or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law.
  • The Registrar is directed to notify the Minister for Health and the Mental Health Review Tribunal of the verdict and the order as soon as practicable.
  • The Registrar is directed to provide the Tribunal with copies of the court's reasons, the transcript of the special hearing, and all exhibits tendered during the hearing.

Key Takeaways

  • A special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) is conducted as nearly as possible to an ordinary criminal trial, but its purpose is to acquit the accused unless it can be proved to the criminal standard, on the limited evidence available, that the accused committed the offence.
  • Where evidence at a special hearing establishes the defence of mental illness, s 38 of the Forensic Provisions Act mandates a special verdict of not guilty on the ground of mental illness; the court has no discretion to return a different verdict.
  • The M'Naghten test, as applied in R v Porter, requires that the accused prove on the balance of probabilities that, due to a disease of the mind, he did not know the nature and quality of his act, or did not know that what he was doing was wrong by everyday standards of reasonable people.
  • Following a special verdict, detention under s 39 continues until the Mental Health Review Tribunal is satisfied on future evidence that release would not seriously endanger the safety of the accused or any member of the public.
  • Ongoing oversight by the Tribunal is built into the statutory scheme: it must review the accused's case at least every six months and may impose conditions on any eventual release, or order apprehension if those conditions are breached or the accused's mental condition deteriorates.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 16, 19, 21, 22, 38, 39, 46, 47, 51, 68, 75
- Mental Health Act 2007 (NSW)

Cases:
- R v M'Naghten (1843) 8 ER 718
- R v Porter (1933) 55 CLR 182; [1933] HCA 1
- Hawkins v R (1994) 179 CLR 500; [1994] HCA 28
- R v Zvonaric (2001) 54 NSWLR 1; [2001] NSWCCA 505
- R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226
- R v Charles Robert Moyano [2015] NSWSC 1444