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Supreme Court 13 December 2017

R v Wilson (No 4)

[2017] NSWSC 1730

Assault & violenceHomicideDomestic & family violence
CRIMINAL LAW MURDER JUDGE ALONE ALTERNATIVE CHARGE OF MANSLAUGHTER ACCUSED SUFFERING MENTAL IMPAIRMENT HOW NUMEROUS BURNS WERE CAUSED

Citation: R v Wilson (No 4) [2017] NSWSC 1730
Court: Supreme Court of New South Wales
Date: 13 December 2017
Judge: Schmidt J

Background

The accused was charged with the murder of her long-term domestic partner, who died on 12 February 2013 from the combined effects of multiple burns, blunt force injuries, and advanced liver cirrhosis. The accused had called ambulance officers the following morning, and on that day admitted to striking the deceased with a metal pole and causing burns with boiling water. The deceased's liver disease was so advanced that it could have caused his death at any time independent of the assault.

The accused had previously been found unfit to be tried. The proceeding before Schmidt J was accordingly a "special hearing" under the Mental Health (Forensic Provisions) Act 1990 (NSW), which is a modified trial process designed to determine, on the limited evidence available, whether the accused committed the charged offence or an available alternative. The accused did not give evidence at the special hearing and raised the defences of self-defence, provocation, and the partial defence of substantial impairment by abnormality of mind.

The parties agreed that a verdict of not guilty on the ground of mental illness was not available to the accused, because the psychiatric evidence established she understood the nature and wrongness of her actions at the time of the offending.

  • Whether the accused intended to cause serious physical injury when she struck the deceased with a metal pole, as required to establish the mental element of murder
  • How the deceased's burns were caused and in what sequence the injuries were inflicted
  • Whether the accused acted in self-defence
  • Whether the accused acted under provocation
  • Whether the partial defence of substantial impairment by abnormality of mind under section 23A of the Crimes Act 1900 (NSW) reduced any murder liability to manslaughter
  • What verdict was available under section 22(1) of the Mental Health (Forensic Provisions) Act 1990 on the limited evidence

Decision

Schmidt J found that, while it was established beyond reasonable doubt that the accused caused the deceased's burns with the intention of causing him really serious injury, the evidence did not establish beyond reasonable doubt that she had the requisite intent to seriously injure him when she struck him with the metal pole. The resolution of this question turned on the sequence of events and the circumstances surrounding the use of the pole, matters that remained insufficiently proved on the limited evidence available.

On self-defence, the court was not satisfied that the Crown had disproved the defence beyond reasonable doubt. On provocation, the court found that the deceased's conduct was capable of inducing an ordinary person in the accused's position to so far lose self-control as to form an intent to inflict grievous bodily harm. Either of these findings independently produced the result that the accused was not guilty of murder but guilty of manslaughter.

The court was separately satisfied that the accused's capacity to control herself at the time of the offending was substantially impaired by an abnormality of mind arising from underlying psychiatric and other conditions. Schmidt J found those impairments to be of such significance, some of them lifelong in duration, that even had all elements of murder been established, the partial defence under section 23A of the Crimes Act would have reduced the verdict from murder to manslaughter. The court noted that the accused's conduct, viewed without the context of her impairments, would unquestionably have warranted a murder conviction.

Having reached a verdict on the limited evidence available, Schmidt J indicated that the next steps would require a determination of what term of imprisonment would have been appropriate had the accused been fit to stand trial and been convicted. The matter would then proceed to the Mental Health Review Tribunal to assess whether the accused remained mentally ill and required detention in a mental health facility.

Orders Made

  • Verdict entered that, on the limited evidence available, the accused is not guilty of murder but guilty of manslaughter.

Key Takeaways

  • A special hearing under the Mental Health (Forensic Provisions) Act 1990 does not require an unfit accused to be acquitted outright; it allows the court to determine, on the limited evidence available, whether the accused committed the charged offence or an alternative offence.
  • Where the evidence does not establish beyond reasonable doubt each element of murder (including the requisite intent), a verdict of guilty of manslaughter remains available as an alternative at a special hearing.
  • The partial defence of substantial impairment by abnormality of mind under section 23A of the Crimes Act 1900 applies in special hearings and, if established, reduces a finding of murder to manslaughter even where the accused is unfit to be tried in the ordinary way.
  • The M'Naghten test for mental illness requires proof, on the balance of probabilities, that the accused either did not know the nature and quality of the physical act, or did not know it was wrong. Schmidt J found the accused did not meet this threshold because the evidence showed she understood the wrongness of her conduct at the time.
  • Following a guilty verdict at a special hearing, the court is required to nominate an appropriate term of imprisonment, with the Mental Health Review Tribunal subsequently determining whether the accused requires ongoing detention in a mental health facility.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 23A
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 19(2), 21(3), 22(1), 38

Cases:
- Hawkins v R (1994) 179 CLR 500; [1994] HCA 28
- Mizzi v R (1960) 105 CLR 659; [1960] HCA 77
- R v M'Naghten (1843) 8 ER 718
- R v Porter (1933) 55 CLR 182; [1933] HCA 1
- R v Wilson (No 3) [2017] NSWSC 1680
- Stingel v The Queen (1990) 171 CLR 312; [1990] HCA 61
- Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76
- Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31