Citation: R v Cunningham [2017] NSWSC 1176
Court: Supreme Court of New South Wales
Date: 5 September 2017
Judge: Beech-Jones J
Background
The accused was charged with the murder of an 81-year-old woman at Freshwater, New South Wales, on 20 March 2016. The deceased, who had been diagnosed with dementia but lived independently, was found in her unit covered in bruises and had died from asphyxiation. Witnesses saw the accused and the deceased together at the unit during the afternoon, drinking wine and interacting, though the accused's behaviour appeared to become disturbed as the afternoon progressed.
When a friend of the deceased arrived at around 8 pm, he found the accused inside the darkened unit. The accused attempted to push him out, and the deceased was subsequently found on the floor. Police were called, and the accused was apprehended at the scene.
The trial proceeded before Beech-Jones J sitting alone, without a jury. The accused pleaded not guilty and raised the defence of mental illness, contending that she suffered from a schizoaffective disorder at the time of the killing and did not know her actions were morally wrong.
Legal Issues
- Whether the Crown proved beyond reasonable doubt that a deliberate act of the accused caused the death of the deceased.
- Whether the accused established, on the balance of probabilities, that she was mentally ill at the time of the killing within the meaning of s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
- Whether the psychiatrists' opinions in support of the mental illness defence should be rejected because they relied on an account of the offence given by the accused that the Crown argued was unreliable.
- Whether the accused's post-offence conduct, specifically covering the body with newspapers and pillows and attempting to leave the unit, negated the mental illness defence.
- Whether self-defence or the partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW) arose for consideration.
Decision
Beech-Jones J was satisfied beyond reasonable doubt that a deliberate act of the accused caused the death of the deceased. That finding resolved the first issue against the accused. The court then turned to the question of criminal responsibility.
Both the defence psychiatrist (Dr Ellis) and the Crown psychiatrist (Professor Greenberg) diagnosed the accused with schizoaffective disorder. Critically, both independently concluded that, at the time of the killing, the accused did not know that her actions were morally wrong according to the ordinary standards of right and wrong adopted by reasonable people. This is the relevant legal test for mental illness under the McNaghten rules as applied in New South Wales, following The King v Porter (1933) 55 CLR 182.
The Crown contested those conclusions on two principal grounds: first, that the psychiatrists' opinions were built upon an unreliable account of the offence provided by the accused herself; and second, that the accused's post-offence conduct in covering the body and attempting to leave the scene demonstrated an awareness that her actions were wrong. Beech-Jones J rejected both arguments. The court found that a substantial body of independent evidence, drawn from observations of the accused's conduct and mental state in the period leading up to and following the offence, strongly corroborated the psychiatric opinions. The court was not persuaded that the post-offence conduct was inconsistent with the accused being mentally ill at the relevant time.
Accepting the opinions of both psychiatrists, the court upheld the defence of mental illness. As a result, the court entered a verdict of not guilty by reason of mental illness, as required by s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
Orders Made
No orders were made in this decision.
Key Takeaways
- Where both prosecution and defence psychiatrists agree that an accused did not know their actions were morally wrong at the relevant time, a court will require compelling reasons to depart from that consensus; here, no such reasons were found.
- Post-offence conduct suggesting concealment does not automatically defeat a mental illness defence. The court assessed that behaviour in context alongside the broader body of evidence concerning the accused's mental state.
- Psychiatric opinions that partially rely on an accused's account of an offence are not necessarily undermined where substantial independent evidence corroborates the diagnosis and the expert conclusions.
- Under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), once a court is satisfied on the balance of probabilities that the accused was mentally ill at the time of the act causing death, a verdict of not guilty by reason of mental illness is mandatory.
- In a judge-alone murder trial where mental illness is raised, the Supreme Court must first determine whether the Crown has proved a deliberate act causing death before proceeding to assess criminal responsibility.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 23A(3), 428C
- Criminal Procedure Act 1986 (NSW), s 132(2)
- Evidence Act 1995 (NSW), s 141(2)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 38
Cases:
- McNaghten's Case (1843) 8 ER 718
- The King v Porter [1933] HCA 1; 55 CLR 182
- Stapleton v The Queen [1952] HCA 56; 86 CLR 358
- Barca v The Queen [1975] HCA 42; 133 CLR 82
- Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
- Edwards v R [1993] HCA 63; 178 CLR 193
- Hawkins v The Queen [1994] HCA 28; 179 CLR 500
- Wilson v The Queen (1992) 174 CLR 313
- Zoneff v R [2000] HCA 28; 200 CLR 234
- Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182
- R v Minani [2005] NSWCCA 226; 63 NSWLR 490
- R v Lane [2011] NSWCCA 157; 221 A Crim R 309
- Goodridge v R [2014] NSWCCA 37
- Moukhayber v Camden Timber & Hardware Co Pty Ltd [2002] NSWCA 58
- R v Quinn (No 2) [2016] NSWSC 1244
- R v Fang (No 3) [2017] NSWSC 159
- R v Papley [2017] NSWSC 1068