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Supreme Court 29 November 2018

R v Struthers

[2018] NSWSC 1824

Assault & violenceHomicide
CRIMINAL LAW TRIAL BY JUDGE ALONE COUNT AVERRING ATTEMPTED MURDER COUNT AVERRING MURDER

Citation: R v Struthers [2018] NSWSC 1824
Court: Supreme Court of New South Wales
Date: 29 November 2018
Judge(s): Button J

Background

The accused (referred to throughout the judgment by the pseudonym Lisa Struthers, to protect the identities of her children) was a 27-year-old woman with a history of unusual behaviour, drug use, and intermittent contact with mental health services. On 2 March 2017, she was in the Murray River at Moama, New South Wales, with her two sons, aged nine and five, referred to in the judgment as Edward and Daniel respectively.

The accused held Daniel's head underwater, drowning him, and made a sustained attempt to do the same to Edward. Those facts were admitted and undisputed. The accused was charged with the murder of Daniel and the attempted murder of Edward.

The trial proceeded before Button J alone, without a jury, pursuant to the consent provisions of the Criminal Procedure Act 1986 (NSW). Both the defence and the Crown submitted that the appropriate verdicts were special verdicts of not guilty on the ground of mental illness.

  • Whether the special defence of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) was established in respect of each count.
  • Whether the accused understood the nature of her acts, or understood that what she was doing was wrong, at the time of the offences.
  • If mental illness were not established, whether the partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW) would apply to reduce the murder charge to manslaughter.

Decision

Button J traced the accused's background in detail, finding a longstanding history of unusual behaviour from childhood, including social difficulties, apparent auditory hallucinations, and contact with mental health services. Her condition had worsened significantly in the period leading up to the offences, exacerbated by the abuse of cannabis and methamphetamine ("ice"). In the days immediately before the drowning, her parole officer and a mental health worker both observed marked agitation, distress, and what the court regarded as delusional thinking.

The court applied the longstanding test from McNaghten's Case (1843) and The King v Porter (1933): the defence of mental illness is established where a mental disease deprives a person of the capacity to know the nature and quality of the act, or to know that what they are doing is wrong. Button J was satisfied, on the balance of probabilities, that the accused was suffering from a serious mental illness at the time of the offences, and that this illness deprived her of the capacity to know that her actions were wrong.

Critically, all psychiatric experts, including those retained by both the defence and the prosecution, agreed that the mental illness defence was available and should be accepted. Button J noted the unusual position of the Crown actively supporting the special verdicts, and accepted that the unanimity of expert opinion, combined with the factual background, left no reasonable doubt on the point.

Given the findings on mental illness, the partial defence of substantial impairment did not require consideration.

Orders Made

  • Special verdict returned on the count of attempted murder: not guilty on the ground of mental illness.
  • Special verdict returned on the count of murder: not guilty on the ground of mental illness.
  • The accused to be detained at the designated mental health PODS at Mulawa Correctional Centre, Silverwater (or such other place as determined by the Mental Health Review Tribunal) until released by due process of law, pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • The Registrar directed to notify the Minister for Health, the Mental Health Review Tribunal, and Justice Health of the judgment and orders, and to provide those bodies with the reasons for verdict, the trial transcript, and the exhibits.

Key Takeaways

  • The Supreme Court confirmed that the mental illness defence under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) requires proof, on the balance of probabilities, that a mental disease deprived the accused of the capacity to know the nature of the act or to know that it was wrong, consistent with the McNaghten test as applied in Australia by The King v Porter.
  • Unanimous expert psychiatric opinion from both Crown and defence witnesses, while not determinative, formed a significant and compelling basis for accepting the special verdict.
  • A special verdict of not guilty on the ground of mental illness does not result in release. Under s 43(a) of the Mental Health (Forensic Provisions) Act 1990, the Mental Health Review Tribunal must not release a person into the community unless satisfied they will not seriously endanger any person.
  • Button J noted that s 39(1) permits immediate release in limited circumstances after such a verdict, but emphasised that no such release was remotely appropriate on the facts of this case.
  • Where the mental illness defence succeeds on both counts at a judge-alone trial, there is no occasion to consider partial defences such as substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment)
- Criminal Procedure Act 1986 (NSW), s 132 (trial by judge alone)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39, 43

Cases:
- McNaghten's Case (1843) 8 ER 718
- The King v Porter [1933] HCA 1; (1933) 55 CLR 182
- Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500
- R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490
- Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205