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Supreme Court 28 February 2018

R v Cox

[2018] NSWSC 200

Homicide
CRIMINAL LAW MURDER SPECIAL HEARING

Citation: R v Cox [2018] NSWSC 200
Court: Supreme Court of New South Wales
Date: 28 February 2018
Judge: Hidden AJ

Background

The accused, a 50-year-old man with a long history of mental illness, was charged with murdering his neighbour at a Housing Commission unit in Sutherland between 29 April and 3 May 2016. Both men lived in the same block and had contact with the Sutherland Mental Health Service. The deceased, aged 60, had been staying in the accused's unit at the time of the killing.

The Crown alleged that the accused assaulted the deceased by punching him and striking him in the head with a chair and a bedhead. This factual allegation was not disputed. The accused came to police attention after he attended Sutherland Hospital's Emergency Department and, in a series of rambling conversations with clinical staff, admitted to the attack and asked to contact police.

Campbell J had previously found the accused unfit to be tried in August 2017. Following a further finding by the Mental Health Review Tribunal that he would remain unfit within the ensuing 12 months, the matter proceeded before Hidden AJ as a special hearing under the Mental Health (Forensic Provisions) Act 1990.

  • Whether, on the limited evidence available at the special hearing, the accused committed the offence of murder.
  • Whether the accused was not guilty on the ground of mental illness, being the only contested issue before the court.
  • Specifically, whether the accused's mental state at the time of the killing prevented him from appreciating that what he was doing was morally wrong, applying the test in The King v Porter (1936) 55 CLR 182.

Decision

The factual circumstances of the killing were not in dispute and were clearly established by witness statements and forensic psychiatric reports. The court found on the evidence that the accused had killed the deceased in the manner alleged by the Crown.

The sole issue was whether a verdict of not guilty on the ground of mental illness should follow. Hidden AJ heard oral evidence from two forensic psychiatrists, Dr Jonathan Adams and Dr Olav Nielssen, both of whom gave evidence about the accused's mental state at the time of the killing. Their evidence was uncontested.

The court accepted that the accused's belief that the deceased was going to kill his mother or rape his family and children was delusional. Two reasons supported this finding: there was no evidence that any family member was threatened by the deceased, and the accused had no children. The court also accepted that a pattern of irrational behaviour in the weeks before the offence was consistent with a disordered mental state caused by the accused's mental illness.

While some post-offence conduct, including attempting to wash blood from the wall and leaving the unit intending to travel to Perth, suggested some awareness of the unlawfulness of his actions, the court was nonetheless satisfied that at the time of the killing the accused was unable to appreciate that what he was doing was morally wrong. Applying the formulation of Sir Owen Dixon in Porter, the accused could not reason "with a moderate degree of sense and composure" about the right or wrongness of his actions. Accordingly, the court returned a verdict of not guilty by reason of mental illness.

Orders Made

  • Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, the accused is to be detained at the Mental Health Unit of the Metropolitan Remand and Reception Centre, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law.

Key Takeaways

  • A verdict of not guilty by reason of mental illness is available at a special hearing under s 22(1)(b) of the Mental Health (Forensic Provisions) Act 1990, even where the accused has been found unfit to be tried and remains so.
  • The applicable test for mental illness as a defence requires that, at the time of the act, the accused was unable to reason with a moderate degree of sense and composure about whether the act was right or wrong according to ordinary standards, as established in The King v Porter (1936) 55 CLR 182 and consistently applied.
  • Post-offence conduct suggesting some awareness of unlawfulness, such as cleaning a scene or fleeing, does not necessarily defeat a finding that the accused lacked the capacity to appreciate the moral wrongness of the act at the time it was committed.
  • Delusional beliefs underpinning an attack may be identified where the factual basis for those beliefs is demonstrably absent, for example, a belief that a victim threatened family members who faced no such threat and, in one respect, did not exist.
  • The Supreme Court confirmed that special hearings of this kind may be conducted in a relatively informal manner where the issue is limited, consistent with the approach endorsed in R v Zvonaric (2001) 54 NSWLR 1.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 16, 19, 22, 39

Cases:
- The King v Porter (1936) 55 CLR 182
- Hawkins v The Queen (1994) 179 CLR 500
- R v Zvonaric (2001) 54 NSWLR 1; [2001] NSWCCA 505
- R v Ronald Ian Cox [2017] NSWSC 1097