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Supreme Court 13 July 2017

R v Birri Morris

[2017] NSWSC 945

Homicide
CRIMINAL LAW SPECIAL HEARING MURDER CIRCUMSTANTIAL CASE MENTAL ILLNESS DEFENCE SPECIAL VERDICT ENTERED

Citation: R v Birri Morris [2017] NSWSC 945
Court: Supreme Court of New South Wales
Date: 13 July 2017
Judge(s): Campbell J

Background

The accused was charged with the murder of a man who died on 2 January 2015 at a Brisbane hospital from injuries sustained in Lismore on 21 December 2014. The deceased suffered severe blunt force head trauma and a stab wound; the head injuries were the primary cause of death. The central factual question was how those fatal injuries came to be inflicted.

The accused had been found unfit to be tried by Hulme AJ in February 2016, applying the criteria from the Victorian decision in R v Presser. The Mental Health Review Tribunal subsequently assessed him twice and concluded he would not become fit to be tried within 12 months. The Director of Public Prosecutions then directed that the matter proceed to a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW). Neither party elected for a jury, so Campbell J sat alone as the tribunal of both law and fact.

  • Whether the Crown proved beyond reasonable doubt that the accused committed the physical act causing the deceased's death (the actus reus of murder).
  • Whether the accused had established the mental illness defence on the balance of probabilities, having been assessed by two psychiatrists as suffering from untreated paranoid schizophrenia at the time of the offending.
  • What verdict and consequential orders were available under the Mental Health (Forensic Provisions) Act 1990 (NSW), and whether the accused should be released into the community.

Decision

Campbell J was satisfied beyond reasonable doubt that the accused committed the physical act causing the deceased's fatal injuries, thereby establishing the actus reus of murder. The court noted that, where the mental illness defence is raised and succeeds, no separate question of intent needs to be determined: following Hawkins v The Queen (1994) 179 CLR 500, the existence of a mental illness that negates criminal responsibility means intent does not fall for determination.

On the mental illness defence, both psychiatric experts agreed the accused suffered from untreated paranoid schizophrenia at the relevant time. The court accepted their unanimous opinion, applying the test from The King v Porter (1933) 55 CLR 182 (the foundational Australian authority on the defence, which requires the accused to have been incapable of knowing the nature or wrongness of the act due to a disease of the mind). The accused had discharged the onus of establishing the defence on the balance of probabilities.

The court entered a special verdict of not guilty on the ground of mental illness under s 38 of the Act. Campbell J emphasised that a special verdict is not equivalent to an acquittal. The accused's mental illness was described as far from cured and not completely under control, and the court was not satisfied that releasing him would be safe for himself or others.

Orders Made

  • Under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict was returned that the accused is not guilty of murder by reason of mental illness.
  • Under s 39 of the Act, 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.
  • The Registrar was directed to notify the Minister for Health of the orders.
  • The Registrar was directed to notify the Mental Health Review Tribunal of the special verdict and orders, and to provide the Tribunal with a copy of the reasons, orders, and psychiatric exhibits.

Key Takeaways

  • A special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) is not a criminal trial in the ordinary sense: it proceeds on "limited evidence," the accused is taken to have pleaded not guilty, and any unfavourable finding constitutes a qualified finding of guilt rather than a conviction.
  • Where an accused raises the mental illness defence and expert psychiatric evidence unanimously supports it, a court conducting a special hearing will generally accept that evidence unless its factual assumptions are shown to be materially wrong.
  • Under Hawkins v The Queen, once a mental illness defence is made out, the question of intent does not require separate determination, even though there may be no inherent inconsistency between a mental illness and the existence of a specific intent.
  • A special verdict of not guilty on the ground of mental illness results in the accused continuing as a forensic patient under the supervision of the Mental Health Review Tribunal: release into the community requires a separate Tribunal determination that the person would not seriously endanger others, together with notice to the relevant Ministers.
  • The onus of proving the mental illness defence rests on the accused and is discharged on the balance of probabilities, a notably lower standard than the Crown's burden of proof beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 12, 14, 16, 19, 21, 21A, 22, 38, 39, 42, 43, 46
- Criminal Procedure Act 1986 (NSW), ss 133(1), (2), (3)

Cases:
- R v Presser [1958] VR 45
- The King v Porter [1933] HCA 1; 55 CLR 182
- Hawkins v The Queen (1994) 179 CLR 500
- R v Minani (2005) 63 NSWLR 490
- Stanton v The Queen [2003] HCA 29; 77 ALJR 1151
- R v McNaughten (1843) 8 ER 718
- Alford v Magee (1952) 85 CLR 437
- Commissioner for Road Transport and Tramways v Prerauer (1950) 50 SR (NSW) 271