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Supreme Court 23 November 2017

R v SP

[2017] NSWSC 1579

Homicide
CRIMINAL LAW MURDER JUDGE ALONE TRIAL DEFENCE OF MENTAL ILLNESS

Citation: R v SP [2017] NSWSC 1579
Court: Supreme Court of New South Wales
Date: 23 November 2017
Judge(s): Hidden AJ

Background

The accused stood trial before Hidden AJ, sitting without a jury, charged with the murder of her two-year-old daughter at their home in Miller on or about 10 September 2016. The Crown case was not in dispute: the accused had drowned the child in a bath during what the evidence established was a psychotic episode. The sole issue at trial was whether the defence of mental illness had been made out.

The accused had a documented history of schizophrenia and had recently ceased taking her prescribed medication. In the days before the drowning, she had also experienced the breakdown of a significant relationship. She was found by police the following day in the Blue Mountains area, sitting in the middle of a road holding a bible after a motor vehicle accident, making repeated references to God and the devil. She was admitted to Blue Mountains Hospital and later assessed by a psychiatrist as presenting with a relapse of psychotic symptoms.

When police spoke with the accused at the hospital and later at Katoomba Police Station, she admitted to drowning the child. She described the act in terms of a deranged exorcism: she believed an evil entity had possessed the child and that drowning her would release the child's soul to heaven. The body of the child was discovered on 13 September 2016 by a friend of the accused.

  • Whether the accused had made out the defence of mental illness under the test established in The King v Porter (1933) 55 CLR 182 and M'Naghten's Case (1843)
  • Whether, applying Hawkins v The Queen (1994) 179 CLR 500, the court needed to determine the elements of the offence (including intent) before turning to the mental illness defence, or whether the defence could be considered independently
  • Whether, on the balance of probabilities, the accused was mentally ill at the time of the killing so as to not be legally responsible for her actions under s 38(1) of the Mental Health (Forensic Provisions) Act 1990

Decision

Hidden AJ found that the defence of mental illness was made out on the balance of probabilities and entered a special verdict of not guilty by reason of mental illness. His Honour considered the evidence of forensic psychiatrists and accepted that the accused was in the grip of an acute psychotic episode at the time she drowned the child.

The court addressed the procedural question arising from Hawkins v The Queen, which established that it is not always necessary to first determine whether the elements of the offence are proved before considering the mental illness defence. His Honour concluded that the accused's guilt need not be determined as a preliminary step, though he noted the outcome was the same on either approach.

On the question of intent, His Honour was satisfied beyond reasonable doubt that the accused intended to kill the child, as demonstrated by the act itself and her own statements that she drowned the child "to save her" and left her in the water "until her soul left her." However, the court found that intent was itself the product of a mind disordered by mental illness.

His Honour accepted that, following treatment in custody, the accused had developed insight into her actions and was deeply remorseful. The judgment concluded with an expression of sympathy to all those affected, and the accused was ordered to remain in custody subject to review by the Mental Health Review Tribunal.

Orders Made

  • The accused is to be detained in a correctional facility, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law, pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990.

Key Takeaways

  • The Supreme Court confirmed that, following Hawkins v The Queen (1994) 179 CLR 500, a court is not required to determine whether the elements of a charged offence are established before considering the defence of mental illness, though the outcome will often be the same on either approach.
  • A special verdict of not guilty by reason of mental illness is available where the accused establishes on the balance of probabilities that, at the time of the act, they were mentally ill so as not to be legally responsible for their actions under s 38(1) of the Mental Health (Forensic Provisions) Act 1990.
  • Proof of intention to kill does not defeat the mental illness defence: where that intention is itself the product of a mind disordered by mental illness, the defence can still be made out.
  • A finding of not guilty by reason of mental illness does not result in unconditional release. Under s 39(1) of the Mental Health (Forensic Provisions) Act 1990, the accused is detained and subject to ongoing review by the Mental Health Review Tribunal, with release contingent on a finding that it is safe to do so.
  • Evidence of acute psychotic symptoms, a diagnosed history of schizophrenia, recent cessation of medication, and the accused's own account describing delusional beliefs at the time of the killing were all relevant to the court's satisfaction that the mental illness defence was established.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38(1), 39(1)

Cases
- Hawkins v The Queen (1994) 179 CLR 500
- R v McNaghten (1843) 8 ER 718
- The King v Porter (1933) 55 CLR 182
- R v Minani (2005) 154 A Crim R 349; [2005] NSWCCA 226
- R v S [1979] 2 NSWLR 1