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Supreme Court 17 October 2017

R v Cahill

[2017] NSWSC 1408

Assault & violenceHomicide
CRIMINAL LAW OFFENCE MURDER MENTAL ILLNESS DEFENCE OF MENTAL ILLNESS MADE OUT

Citation: R v Cahill [2017] NSWSC 1408
Court: Supreme Court of New South Wales
Date: 17 October 2017
Judge: Bellew J

Background

The accused faced three counts on indictment: the murder of a man at a Camperdown bus stop in December 2015, and two counts of being armed with a knife with intent to assault two other individuals on the same occasion. The accused resided in transitional housing provided for people with mental health conditions and had a lengthy documented history of mental illness, including a diagnosis of treatment-resistant schizophrenia.

Prior to trial, the accused was found unfit to be tried. The Mental Health Review Tribunal subsequently determined that he would not become fit to stand trial within 12 months of that finding. That determination triggered the special hearing process under the Mental Health (Forensic Provisions) Act 1990 (NSW).

A special hearing is a statutory mechanism designed to ensure that a person who cannot be tried in the ordinary way is nonetheless acquitted unless the evidence, assessed to the criminal standard, establishes that the person committed the offence. Bellew J presided over the hearing as judge alone, no jury election having been made by either party.

  • Whether the facts of the offending were established on the limited evidence available, to the requisite criminal standard.
  • Whether the defence of mental illness was made out on the balance of probabilities, such that a verdict of not guilty on the grounds of mental illness should be returned.
  • What orders were required following a finding that the mental illness defence was established.

Decision

The underlying facts were not in dispute. The accused had stabbed the deceased, who was a stranger waiting at a bus stop near the accused's residence. The accused's interactions with mental health workers earlier that same afternoon had not raised any obvious signs of acute psychosis, though his broader psychiatric history was extensive.

Two expert psychiatrists, Dr Furst and Dr Martin, gave evidence. Both diagnosed the accused with treatment-resistant schizophrenia. Their evidence, which Bellew J accepted, was that at the time of the offending the accused was experiencing significant symptomatology: thought disorder, hallucinations, difficulty in processing information, and delusional beliefs. The experts were in agreement that the accused's conduct was driven by delusional thinking.

The legal test for the defence of mental illness derives from M'Naghten's Case and R v Porter: the accused must establish, on the balance of probabilities, that at the time of the offending he was suffering from a mental illness of such severity that he did not appreciate the wrongfulness of his actions. Bellew J was satisfied that this standard was met. The accused could not, by reason of his delusional thinking, reason about whether his actions were wrong.

Accordingly, Bellew J returned verdicts of not guilty on the grounds of mental illness on all three counts.

Orders Made

  • The accused was found not guilty of each of counts 1, 2, and 3 on the grounds of mental illness.
  • The accused was ordered to be detained pursuant to s. 39 of the Mental Health (Forensic Provisions) Act 1990 in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine, until released by due process of law.
  • The Registrar was directed to notify the Minister for Health and the Mental Health Review Tribunal of the orders.

Key Takeaways

  • Under the Mental Health (Forensic Provisions) Act 1990 (NSW), where a person is found unfit to stand trial and is unlikely to become fit within 12 months, the court must conduct a special hearing to determine whether the person committed the offence or should be acquitted.
  • A verdict of not guilty on the grounds of mental illness remains available at a special hearing, alongside conviction on the limited evidence or a straightforward acquittal.
  • The defence of mental illness requires proof on the balance of probabilities that, due to a mental illness, the accused did not appreciate the wrongfulness of his actions at the time of the offending, applying the test from R v M'Naghten and R v Porter.
  • Accepted expert psychiatric evidence that the accused's conduct was driven by delusional thinking, rendering him unable to reason about the wrongfulness of his actions, was sufficient to establish the mental illness defence.
  • Where a not guilty on grounds of mental illness verdict is returned, the court is required to order detention under s. 39 of the Forensic Provisions Act, with ongoing supervision by the Mental Health Review Tribunal.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss. 16, 19, 21A, 22, 39
- Criminal Procedure Act 1986 (NSW), s. 133

Cases:
- R v M'Naghten (1843) 8 ER 718
- R v Porter (1933) 55 CLR 182; [1933] HCA 1
- Fleming v R (1998) 197 CLR 250; [1998] HCA 68
- W v R [2014] NSWCCA 110
- Markou v R [2012] NSWCCA 64
- R v Winner (1995) 79 A Crim R 528
- R v Cahill [2016] NSWSC 1697
- R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226
- R v Afele [2014] NSWSC 366
- Mizzi v R (1960) 105 CLR 659; [1960] HCA 77
- R v Ayoub [1984] 2 NSWLR 511
- R v S [1979] 2 NSWLR 1