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Supreme Court 23 October 2018

R v Fraser

[2018] NSWSC 1598

Homicide
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON HOMICIDE MURDER WHERE ACCUSED ACTED UNDER DELUSIONS

Citation: R v Fraser [2018] NSWSC 1598
Court: Supreme Court of New South Wales
Date: 23 October 2018
Judge: Fagan J

Background

The accused was charged with the murder of a motorcyclist on the Pacific Motorway near Byron Bay on 6 January 2017. She drove a Ford Falcon station wagon at speeds estimated between 160 and 200 kilometres per hour into the rear of the deceased's motorcycle, killing him at the scene. Ten witnesses observed her vehicle weaving dangerously between lanes over a distance of more than 30 kilometres before the collision.

The accused pleaded not guilty and relied solely on the mental illness defence under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The trial proceeded before Fagan J alone, following a judge-alone order made with the Crown's consent under the Criminal Procedure Act 1986 (NSW).

Both the defence psychiatrist (Dr Furst) and the Crown's own psychiatrist (Dr Samuels) agreed that, at the time of the collision, the accused was suffering from a psychotic illness involving paranoid delusions and auditory hallucinations. The Crown did not contest the availability of the mental illness defence and tendered Dr Samuels' report in its own case, leaving the question of a special verdict to the Court.

  • Whether the Crown proved beyond reasonable doubt that the accused's voluntary acts caused the deceased's death.
  • Whether the accused was suffering from a disease of the mind at the time of the offence.
  • Whether, as a result of that disease, the accused was so impaired that she did not know the nature and quality of her acts, or did not know that what she was doing was wrong, within the meaning of s 38(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • At what stage in the analysis the mental illness defence falls to be determined, having regard to the required elements of murder.

Decision

Fagan J first addressed causation and voluntary action. Drawing on extensive circumstantial evidence, including witness accounts, road markings, vehicle damage, and the autopsy findings, his Honour was satisfied beyond reasonable doubt that the collision and the deceased's death were caused by voluntary acts of the accused. The forensic and physical evidence left no reasonable hypothesis consistent with innocence.

Following the approach confirmed in Hawkins v The Queen (1994) 179 CLR 500 and R v Minani (2005) 63 NSWLR 490, his Honour held that the mental illness defence is to be determined after voluntary causation is established but before the court examines whether the specific intent for murder has been proved. This sequencing is significant: a finding of mental illness at that intermediate stage makes it unnecessary to resolve the element of intent.

On the mental illness question, Fagan J accepted the uncontested psychiatric evidence of both experts. The accused was suffering from a psychotic illness characterised by paranoid delusions and auditory hallucinations. By reason of that disease, she did not know the nature and quality of her acts, or that what she was doing was wrong, at the time of the collision. The legal test, drawn from R v M'Naghten (1843) 8 ER 718 and R v Porter (1933) 55 CLR 182, was satisfied on the evidence.

Fagan J entered a special verdict of not guilty by reason of mental illness. His Honour concluded with observations about the profound loss suffered by the deceased's family, the remorse expressed by the accused (now stable and medicated), and the broader difficulties of managing episodic psychosis in the community where risk of serious harm can exist even where a patient does not otherwise present as violent.

Orders Made

  • A verdict of not guilty by reason of mental illness was entered.
  • The accused was ordered to be detained, pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), in the place where she had been remanded in custody, or in such other place as the Mental Health Review Tribunal may direct, until released by due process of law.
  • The Registrar was directed to notify the Attorney General, the Minister for Health, and the Mental Health Review Tribunal, and to provide each with copies of the trial judge's reasons, the report of Dr Furst (exhibit 1), the report of Dr Samuels (exhibit A), and the accused's letter (exhibit 2).

Key Takeaways

  • Under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty by reason of mental illness is available where the accused, by reason of a disease of the mind, did not know the nature and quality of their acts or did not know those acts were wrong at the time of the offence.
  • The Supreme Court confirmed, applying Hawkins v The Queen and R v Minani, that the mental illness defence is to be determined after voluntary causation is established but before the court considers whether the Crown has proved specific intent. If mental illness is made out at that point, the intent element need not be resolved.
  • Where both the Crown's and the defence's psychiatric experts agree that the mental illness defence is established, the court is still required to satisfy itself independently that a special verdict is appropriate, rather than simply adopting the agreed position.
  • A special verdict of not guilty by reason of mental illness does not result in unconditional release. The accused is detained under the Mental Health (Forensic Provisions) Act 1990 (NSW) and remains subject to the oversight of the Mental Health Review Tribunal until released by due process of law.
  • The decision illustrates that episodic psychosis, even where a patient has not previously exhibited significant violence, can give rise to lethal conduct, and that the community safety considerations attending mental illness cases extend to the mandatory detention and notification regime following a special verdict.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39
- Criminal Procedure Act 1986 (NSW), s 132

Cases:
- R v M'Naghten (1843) 8 ER 718
- R v Porter (1933) 55 CLR 182; [1933] HCA 1
- Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28
- R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226