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Supreme Court 29 March 2016

R v George Tannous

[2016] NSWSC 330

HomicideDomestic & family violence
MURDER JUDGE ALONE TRIAL DEFENCE OF MENTAL ILLNESS SPECIAL VERDICT

Citation: R v George Tannous [2016] NSWSC 330
Court: Supreme Court of New South Wales
Date: 29 March 2016
Judge: Mathews AJ

Background

The accused was charged with the murder of his wife at their Bankstown unit on 17 February 2014. The couple had been married since the early 1990s and had two adult children. Their relationship had deteriorated over several years, with the accused harbouring an intense and persistent belief that his wife was engaging in multiple affairs, a belief that extended to irrational interpretations of ordinary social interactions.

On the evening of the killing, with both children out of the home, an argument arose. When the victim said she wanted a divorce, the accused struck her repeatedly to the head and upper body with a large stick. She was taken to Liverpool Hospital and died later that night from blunt force trauma. The accused called emergency services, rang relatives, and then attended Bankstown Police Station to hand himself in.

The trial proceeded before a judge alone by consent. Both the Crown and defence psychiatric experts agreed that a special verdict of not guilty by reason of mental illness was the appropriate outcome, and both counsel submitted accordingly.

  • Whether the accused's actions in causing the victim's death were voluntary and intentional in the relevant legal sense
  • Whether the defence of mental illness was established on the balance of probabilities under the McNaghten Rules, so as to warrant a special verdict under s 38 of the Mental Health (Forensic Provisions) Act 1990
  • Whether, given that the defence of mental illness was made out, it was necessary to consider whether the Crown had proved the requisite intention for murder

Decision

Mathews AJ had no difficulty finding that the accused's actions in striking the victim were voluntary and intentional in the legal sense. No party sought to argue otherwise, and the physical and forensic evidence was uncontested.

The central question was whether the defence of mental illness had been established on the balance of probabilities. Consistent with the High Court's approach in Hawkins v The Queen, once the defence of mental illness is made out, it is unnecessary to consider the accused's intention for murder. The burden falls on the accused to establish the defence on the balance of probabilities.

Both psychiatric experts diagnosed the accused with delusional disorder of the jealous type. Dr Adam Martin, the Crown's forensic psychiatrist, gave oral evidence that the killing occurred as a direct result of the accused's delusional thinking. He concluded that the delusional disorder impaired the accused's ability to appreciate the moral wrongfulness of his actions and to think and behave rationally. While the accused's controlling personality was also a factor, Dr Martin confirmed that a controlling personality and a delusional disorder are not mutually exclusive.

Mathews AJ concluded that the whole of the evidence pointed in one direction only: when the accused inflicted the fatal injuries, he was suffering from a mental illness as defined by the McNaghten Rules. Her Honour accordingly entered a special verdict of not guilty by reason of mental illness.

Orders Made

  • The accused is to be detained at the Metropolitan Remand and Reception Centre (MRRC), or at such other place as the Mental Health Review Tribunal may determine from time to time, until released by due process of law.
  • The Registrar of the Court is directed to notify the Minister for Health of the judgment.
  • The Registrar of the Court is directed to notify the Mental Health Review Tribunal of the judgment and to provide the Tribunal with: a transcript of the proceedings; copies of all exhibits tendered at trial and the Crown submissions; and a copy of the reasons for verdict and orders.

Key Takeaways

  • Under s 38 of the Mental Health (Forensic Provisions) Act 1990, a special verdict of not guilty by reason of mental illness requires the accused to establish the defence on the balance of probabilities by reference to the McNaghten Rules.
  • Where the defence of mental illness is made out, the Supreme Court confirmed (applying Hawkins v The Queen) that there is no need to proceed to consider whether the Crown has proved the intention required for murder.
  • Delusional disorder of the jealous type can constitute a mental illness sufficient to ground the McNaghten defence, where the condition is found to have directly caused the offending and to have impaired the accused's capacity to appreciate the moral wrongfulness of their actions.
  • A controlling or suspicious personality and a diagnosed delusional disorder are not mutually exclusive conditions; the presence of a personality factor does not preclude a finding of serious mental illness.
  • Consistent agreement between Crown and defence psychiatric experts, and concession by both counsel, does not relieve the court of its obligation to independently assess the evidence and be satisfied that the special verdict is the only appropriate outcome.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 38

Cases
- Hawkins v The Queen [1994] HCA 28; 179 CLR 500
- The King v Porter [1933] HCA 1; 55 CLR 182
- R v McNaghten (1842) 8 ER 718