Citation: R v Lieu (No 2) [2018] NSWSC 486
Court: Supreme Court of New South Wales
Date: 20 April 2018
Judge: Campbell J
Background
The accused was charged with the murder of a man he had known for several years. On 29 November 2016, in a suburban shopping centre at Campsie in broad daylight, the accused stabbed the deceased 27 times with a kitchen knife he had purchased earlier that day for that specific purpose. The attack was witnessed by numerous bystanders and left no doubt as to identity or cause of death.
The accused was suffering from a severe, undiagnosed, and untreated Chronic Paranoid Delusional Disorder at the time of the killing. His delusional belief system had incorporated his friendship with the deceased, leading him to believe the deceased intended to kill him. The deceased had no knowledge of the accused's condition or his grievances.
The matter proceeded as a judge-alone trial, with both the Crown and the defence relying on the expert psychiatric evidence to jointly submit that the mental illness defence was established on the balance of probabilities.
Legal Issues
- Whether the accused's mental illness defence under s 23A of the Crimes Act 1900 (NSW) was established on the balance of probabilities.
- Specifically, whether the accused's Chronic Paranoid Delusional Disorder meant he did not know that his act was wrong at the time of the killing, within the meaning of the defence.
- Whether "wrongfulness" in that context means legal wrongfulness, moral wrongfulness, or both.
Decision
Campbell J found that the mental illness defence was established. The critical question under s 23A of the Crimes Act 1900 (NSW) was whether the accused's mental disease deprived him of the capacity to know that his act was wrong. The judge examined the distinction, drawn in cases such as Hawkins v The Queen (1994) and R v Codere [1916], between legal and moral wrongfulness, noting that a defendant need not be deprived of knowledge of both in order to satisfy the defence.
The expert psychiatric evidence, from Professor Greenberg (Crown psychiatrist) and Dr Teoh (defence psychiatrist), was not in contest. Both experts agreed that the accused suffered from a long-standing, systemised persecutory paranoid delusional disorder. His fixed, irrational belief that the deceased intended to kill him meant he believed he was acting in self-defence, which deprived him of the capacity to appreciate the moral wrongfulness of what he was doing.
The court noted that the accused's conduct immediately before and after the killing, including purchasing the knife, waiting for the deceased, and asking about likely sentence, might superficially suggest rationality. However, Campbell J accepted the expert evidence that this apparent deliberateness was consistent with the accused's delusional framework, not evidence that he understood his act to be wrong. On the balance of probabilities, the defence was made out.
Campbell J returned a special verdict of not guilty by reason of mental illness and expressly noted that this verdict is not equivalent to an ordinary acquittal. The court observed that the accused's condition remained severe, was treatment-resistant, and that he continued to present a danger to the community and to himself. Immediate release was not appropriate.
Orders Made
- Under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty of murder by reason of mental illness was returned.
- Under s 39 of that Act, the accused is 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.
- 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 copies of the reasons, orders, transcript of evidence, and psychiatric reports.
Key Takeaways
- A special verdict of not guilty by reason of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) does not result in release: the accused remains subject to detention and ongoing oversight by the Mental Health Review Tribunal.
- Under s 23A of the Crimes Act 1900 (NSW), the mental illness defence turns on whether the accused lacked the capacity to know their act was wrong. This encompasses moral wrongfulness, and deprivation of that understanding alone is sufficient to satisfy the defence, even where the accused retains some awareness of legal consequences.
- Apparent deliberateness in an accused's conduct, such as purchasing a weapon in advance or asking about sentencing, does not preclude a successful mental illness defence where expert psychiatric evidence establishes that the behaviour was driven by a delusional belief system.
- Where Crown and defence experts agree that the mental illness defence is established, and both parties submit accordingly, a trial judge in a judge-alone proceeding must still independently assess whether the defence is made out on the balance of probabilities.
- The Mental Health Review Tribunal may not release a person subject to a s 38 special verdict unless and until it is satisfied that the person will not seriously endanger themselves or any other person, consistent with s 43(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 23A (mental illness defence)
- Criminal Procedure Act 1986 (NSW), ss 132, 133 (trial by judge alone)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39, 43 (special verdict, detention, and Tribunal oversight)
Cases
- Alford v Magee (1952) 85 CLR 437
- Hadfield's case (1800) 27 State Trials 1281
- Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28
- R v Codere [1916] 12 Cr App R 21
- R v Jenkins (1963) 64 SR (NSW) 20