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Supreme Court 18 July 2017

R v Whittall

[2017] NSWSC 1697

Homicide
CRIMINAL LAW JUDGE ALONE TRIAL DEFENCE OF MENTAL ILLNESS SPECIAL VERDICT NOT GUILTY BY REASON OF MENTAL ILLNESS

Citation: R v Whittall [2017] NSWSC 1697
Court: Supreme Court of New South Wales
Date: 18 July 2017 (reasons delivered 6 December 2017)
Judge: Mathews AJ

Background

The accused was charged with the murder of her de facto partner, which occurred in the early hours of 7 July 2014. On the evening before the killing, the accused had discovered messages on the deceased's phone that she interpreted as evidence he had resumed a relationship with a former partner. After a confrontation unfolded across that night, she arrived at the deceased's parents' home with a steak knife taped to her wrist and stabbed him in the abdomen. He died later that morning in hospital following emergency surgery.

The accused had a lengthy psychiatric history, including a diagnosis of Bipolar Affective Disorder from her early twenties. Both the Crown and defence psychiatrists agreed that at the time of the killing she was in the grip of an acute manic episode associated with that condition.

The trial proceeded before a judge alone, by consent, and was short. All evidence, including psychiatric reports, was tendered by agreement. The Crown forensic psychiatrist, Dr Jeremy O'Dea, gave oral evidence and was not cross-examined. Both parties joined in submitting that the appropriate verdict was not guilty by reason of mental illness.

  • Whether the accused's actions in causing the death were voluntary and intentional in the relevant legal sense (setting aside any evidence of mental illness at this stage of the analysis)
  • Whether the defence of mental illness was established on the balance of probabilities, applying the McNaghten Rules as interpreted in Australian law
  • Whether the appropriate verdict was the special verdict of not guilty by reason of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW)

Decision

Mathews AJ confirmed that there was no dispute the accused had inflicted the fatal stab wound and that her actions were voluntary and intentional in the relevant legal sense. The court noted, following the High Court's reasoning in Hawkins v the Queen (1994) 179 CLR 500, that once a mental illness defence is raised, it falls to the accused to establish that defence on the balance of probabilities. If established, no separate consideration of intent for murder is required.

On the question of mental illness, the court applied the McNaghten Rules as articulated in The King v Porter (1933) 55 CLR 182. The central question was whether the accused, at the time of the killing, was unable to reason with a moderate degree of sense and composure about whether her conduct was wrong, by reason of a disease of the mind.

Dr O'Dea gave evidence that the accused's Bipolar Affective Disorder constituted a disease of the mind and that, during the acute manic episode at the time of the killing, she would have been unable to reason about the wrongness of her actions in the required sense. He drew a clear distinction between this condition and her separate substance abuse disorder. The defence psychiatrist, Dr Samuels, agreed in his later reports that the defence was likely available. The expert evidence pointed uniformly in one direction.

Mathews AJ was abundantly satisfied that the accused met the test for the mental illness defence and entered the special verdict of not guilty by reason of mental illness pursuant to s 38 of the Act. A number of ancillary orders were also made, all by consent.

Orders Made

  • Special verdict entered: not guilty by reason of mental illness pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • Ancillary orders made by consent (specific terms not reproduced in the provided text)

Key Takeaways

  • Where the defence of mental illness is raised in a NSW criminal trial, the accused bears the burden of establishing it on the balance of probabilities; if established, the court need not proceed to determine whether the accused had the requisite intent for the charged offence.
  • Bipolar Affective Disorder, where it produces an acute manic episode that deprives the accused of the ability to reason about the wrongness of their actions, can constitute a "disease of the mind" for the purposes of the McNaghten Rules as applied in Australia.
  • The McNaghten test, as explained in The King v Porter, does not require total incapacity; the question is whether the accused could reason about the wrongness of their conduct with a moderate degree of sense and composure.
  • Unanimous expert psychiatric evidence, unrebutted and unchallenged, will carry significant weight in a judge-alone trial on a mental illness defence.
  • A distinct substance abuse disorder does not displace a separately established mental illness defence; the Supreme Court accepted the psychiatrist's evidence that the two conditions were independent.

Legislation and Cases Referenced

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

Cases
- Hawkins v the Queen (1994) 179 CLR 500
- R v McNaghten (1843) 8 ER 718
- R v Presser [1958] VR 45 (fitness to stand trial standard)
- The King v Porter (1933) 55 CLR 182