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Supreme Court 10 March 2016

R v Townsend

[2016] NSWSC 218

Homicide
CRIMINAL LAW MURDER TRIAL BY JUDGE ALONE AGREED FACTS DEFENCE OF MENTAL ILLNESS ACCUSED SUFFERS FROM SCHIZOPHRENIA

Citation: R v Townsend [2016] NSWSC 218
Court: Supreme Court of New South Wales
Date: 10 March 2016
Judge: Adams J

Background

The accused was charged with the murder of a man who had been his friend and neighbour at a unit complex in Dubbo. The two men had a history of socialising, sharing alcohol, and occasionally arguing. A personal violence order was in force at the time of the offending, though it did not prohibit contact between them.

On the evening of 7 November 2014, the two men had been drinking together. The accused later contacted emergency services, initially claiming someone else had attacked the victim. He subsequently told police he had punched and stomped on the victim's head up to 30 times, describing voices in his head instructing him to kill. The victim died from head injuries caused by blunt force trauma in the early hours of 9 November 2014.

The accused did not contest that he killed the victim or that he intended to do so. The sole issue at trial, conducted by judge alone on agreed facts, was whether he was mentally ill at the time of the offence so as not to be legally responsible for his actions.

  • Whether the accused was suffering from a mental illness at the time of the offence such that he did not know that what he was doing was wrong, as required for a special verdict of not guilty by reason of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • Whether the court should order the accused's detention following that special verdict, pursuant to s 39 of the same Act

Decision

Adams J applied the test established in The King v Porter (1936) 55 CLR 182, as it has been consistently applied in New South Wales. The relevant question is whether, at the time of the offence, the accused was unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure due to a disease or disorder of the mind. The defence is made out on the balance of probabilities.

The accused had been diagnosed with schizophrenia since 2003 and had a history of prior brain injury, multiple hospitalisations, episodes of self-harm, and paranoia. Two psychiatrists, Dr Richard Furst and Dr Olav Nielssen, both gave evidence that at the time of the offence the accused was experiencing commanding auditory hallucinations directing him to kill. Both concluded that, while the accused was aware of the physical nature of his actions, he was unable to appreciate their moral wrongfulness and was unable to resist the commands he was hearing.

Adams J accepted the expert opinions of both psychiatrists. The judge found that, although alcohol was also present, the accused's condition arose from a disease of the mind in the form of either chronic schizophrenic illness or hallucinations stemming from underlying brain injury. The defence of mental illness was established to the requisite standard.

On the question of release, Adams J found that the accused was medication-resistant and could not be released. The risk of danger to both the public and the accused himself was such that detention was required. Future decisions about any less restrictive placement would be a matter for the Mental Health Review Tribunal.

Orders Made

  • The accused is to be detained at Long Bay Prison Hospital, or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law.
  • The court recommended transfer of the accused to the Forensic Hospital, Malabar, as soon as practicable.

Key Takeaways

  • The Supreme Court entered a special verdict of not guilty by reason of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), where the accused admitted the killing and the intent, but established on the balance of probabilities that he did not know his actions were wrong.
  • The Porter test requires more than awareness of the physical nature of an act. A defendant who is unable, due to mental illness, to reason about the moral wrongfulness of their actions with a moderate degree of sense and composure satisfies the defence.
  • Command auditory hallucinations forming part of a schizophrenic illness, and felt by the accused to be irresistible at the time of the offence, provided the factual foundation for the mental illness defence here.
  • Concurrent intoxication does not preclude the defence where the underlying cause of the relevant incapacity is a disease of the mind rather than the intoxication itself.
  • Following a special verdict, s 39 of the Mental Health (Forensic Provisions) Act 1990 requires the court to order detention unless it is satisfied that release will not seriously endanger the person or the public. Ongoing supervision passes to the Mental Health Review Tribunal.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39

Cases:
- The King v Porter (1936) 55 CLR 182