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Supreme Court 25 October 2018

R v Tui

[2018] NSWSC 1619

Homicide
CRIMINAL LAW MURDER TRIAL BY JUDGE ALONE DEFENCE OF MENTAL ILLNESS RELEVANCE OF EVIDENCE OF PLANNING SPECIAL VERDICT

Citation: R v Tui [2018] NSWSC 1619
Court: Supreme Court of New South Wales
Date: 25 October 2018
Judge: Wilson J

Background

The accused was charged with the murder of a man in Shalvey on 16 July 2016. The deceased and the accused were related by marriage, though the two had not seen each other for seven or eight years before the incident. The accused had separated from his wife the day before and had been sleeping in his car.

In September 2017, the accused was found unfit to stand trial. The Mental Health Review Tribunal later concluded he would not become fit within the relevant twelve-month period, and the Crown proceeded to a special hearing before Wilson J sitting without a jury.

At the special hearing, both the Crown and the accused's counsel identified the defence of mental illness as the central issue. The accused's counsel submitted that the appropriate outcome was a special verdict of not guilty by reason of mental illness. The Crown accepted the defence could not be ruled out on the evidence, but argued the Court should instead find the accused guilty of manslaughter on the basis of substantial impairment.

  • Whether the accused had been proved, on the limited evidence available, to have committed the offence of murder or the alternative offence of manslaughter
  • Whether the defence of mental illness was made out on the balance of probabilities, such that a special verdict of not guilty by reason of mental illness should be returned
  • The relevance, if any, of evidence of planning to the mental illness defence

Decision

Wilson J conducted the special hearing under the framework in the Mental Health (Forensic Provisions) Act 1990 (NSW), which requires a special hearing to proceed as closely as possible to an ordinary trial. As no election was made by either party, the hearing proceeded before a judge alone, and the accused was taken to have entered a plea of not guilty.

The Court considered all available evidence, including psychiatric evidence, to determine whether the defence of mental illness was established. Under the M'Naghten rules, a verdict of not guilty by reason of mental illness is available where an accused, at the time of committing the act, was suffering from a defect of reason arising from a disease of the mind such that they did not know the nature and quality of the act, or did not know that what they were doing was wrong. The onus rests on the accused to prove that defence on the balance of probabilities, as confirmed in The Queen v Falconer (1990) 171 CLR 30.

Wilson J was satisfied on the evidence that the defence of mental illness had been made out to the requisite standard. The Court returned a special verdict of not guilty of the charge of murder by reason of mental illness, rejecting the Crown's alternative submission that a finding of manslaughter on the basis of substantial impairment was the appropriate outcome.

Following the special verdict, the Court was required to consider detention orders under s 39 of the Act. Satisfied that the accused's release would pose a serious danger to himself or members of the public, Wilson J ordered that he 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.

Orders Made

  • A special verdict of not guilty of the charge of murder by reason of mental illness returned under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • The accused to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law, pursuant to s 39 of the Act
  • The Registrar directed to notify the Minister for Health of the orders
  • The Registrar directed to notify the Mental Health Review Tribunal of the verdict and orders, and to provide a copy of the reasons and specified exhibits
  • A copy of the judgment to be forwarded to the Attorney-General for consideration of formal recognition of the heroism of two bystanders who intervened at the scene

Key Takeaways

  • A special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) is designed to ensure that an accused who is unfit to be tried is still acquitted unless it can be proved to the criminal standard, on the limited evidence available, that they committed the offence charged or an available alternative offence.
  • The defence of mental illness, commonly called the M'Naghten defence, requires proof only on the balance of probabilities, and the onus lies on the accused to establish it: The Queen v Falconer (1990) 171 CLR 30.
  • Where the defence of mental illness is made out at a special hearing, the verdict of not guilty on the ground of mental illness is equivalent in all respects to a special verdict under s 38(1) of the Act, and is followed by mandatory consideration of a detention order under s 39.
  • Under s 39, detention is ordered unless the court is satisfied that the accused's release would not seriously endanger their own safety or that of any member of the public.
  • Wilson J took the unusual step of formally commending two bystanders who intervened at the scene, and directed that a copy of the judgment be sent to the Attorney-General for consideration of formal recognition of their actions.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a)
- Criminal Procedure Act 1986 (NSW), s 20
- Evidence Act 1995 (NSW)
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
- Mental Health (Criminal Procedure) Act 1990 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 16, 19, 21, 21A, 21B, 22, 22A, 38, 39

Cases:
- R v James Va'a Tui [2017] NSWSC 1366
- R v M'Naghten (1843) 8 ER 718
- Stapleton v The Queen (1952) 86 CLR 358
- The Queen v Falconer (1990) 171 CLR 30