AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 26 March 2019

R v Tran

[2019] NSWDC 644

Assault & violence
CRIME ALTERNATE COUNT JUDGE ALONE TRIAL BIZARRE AND AGGRESSIVE BEHAVIOUR UNPROVOKED ATTACK SUBSTANCE USE DISORDER

Citation: R v Tran [2019] NSWDC 644
Court: District Court of New South Wales
Date: 26 March 2019
Judge: Norrish QC DCJ

Background

The accused was charged following an unprovoked attack on a sleeping homeless man in Hyde Park, Sydney, in the early hours of 3 September 2017. The accused, who was also homeless, attacked the victim with a bottle and struck him repeatedly with a metal trolley, with some estimates placing the number of blows at up to 20. The attack caused grievous bodily harm. The accused made statements at the scene expressing an intention to kill the victim, and repeated those admissions to police in a recorded interview later that morning.

In the hours before the assault, security staff and police had observed the accused behaving bizarrely and aggressively toward another homeless man. The Crown alleged that the attack was carried out with intent to murder (Count 1), with an alternative count of inflicting grievous bodily harm with intent to cause grievous bodily harm (Count 2).

The accused elected to be tried by judge alone under s 132A of the Criminal Procedure Act 1986, an election the Crown opposed. His Honour had earlier ruled in a separate judgment to dispense with a jury and try the matter accordingly. The sole live issue at trial was whether the defence of mental illness was established.

  • Whether the Crown proved beyond reasonable doubt that the accused caused grievous bodily harm with intent to murder (Count 1), or with intent to cause grievous bodily harm (Count 2).
  • Whether the accused established the defence of mental illness on the balance of probabilities, requiring acquittal on both counts.
  • What detention order was appropriate if the accused was acquitted on the grounds of mental illness under s 39 of the Mental Health (Forensic Provisions) Act 1990.

Decision

His Honour accepted that the Crown had proved the physical elements of both counts and that the accused had made contemporaneous admissions about his intention. However, the central contest was whether the defence of mental illness applied. Both forensic psychiatrists called at trial, Dr Richard Furst (retained by the defence) and Dr Olav Nielssen (retained by the Crown), agreed that the accused was suffering from a defect of reasoning caused by a disease of the mind at the time of the offending. They differed on the precise character of that disease, with the diagnoses ranging across schizophrenia, substance-induced mental disorder, and substance use disorder with psychotic features, reflecting the accused's history of delusional thinking and hallucinations.

His Honour found that the accused had discharged the burden of establishing the mental illness defence on the balance of probabilities in respect of both counts. The fact that two eminent forensic psychiatrists reached broadly consistent conclusions about the presence of a qualifying mental disease, notwithstanding their differing diagnostic labels, appears to have been central to that finding.

Accordingly, His Honour returned verdicts of not guilty on the grounds of mental illness on both Count 1 and Count 2. Because neither count resulted in a conviction, there was no need to proceed to sentence.

Orders Made

  • Verdict of not guilty on the grounds of mental illness entered on Count 1 (grievous bodily harm with intent to murder).
  • Verdict of not guilty on the grounds of mental illness entered on Count 2 (inflicting grievous bodily harm with intent to cause grievous bodily harm).
  • Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, the accused was ordered to be detained in his current correctional facility, or such other facility as the Mental Health Review Tribunal may determine is appropriate, until released by due process of law.
  • His Honour directed that a copy of the judgment be forwarded to the Mental Health Review Tribunal upon revision.

Key Takeaways

  • Where both prosecution and defence forensic psychiatrists agree that an accused suffered a defect of reasoning from a disease of the mind, that consensus can be sufficient to support a finding that the mental illness defence is established, even where the two experts differ on the specific diagnostic label.
  • The mental illness defence places the burden of proof on the accused, to be discharged on the balance of probabilities. If that burden is discharged, acquittal is required on all counts for which the defence is raised.
  • A judge alone trial under s 132A of the Criminal Procedure Act 1986 requires the judge to expose the full reasoning process behind findings of fact, not merely to state bare legal principles and conclusions.
  • Under s 39 of the Mental Health (Forensic Provisions) Act 1990, an accused acquitted on the grounds of mental illness may be detained in a correctional or other facility as directed by the Mental Health Review Tribunal, rather than being released.
  • Contemporaneous statements of intent to kill, and admissions made during a recorded police interview, were treated as relevant to establishing the mental element of the charges, though ultimately those elements did not determine the outcome once the mental illness defence succeeded.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 132A
- Mental Health Act 2007 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 39

Cases
- R v De Souza (1997) 41 NSWLR 656
- R v Doolan [2010] NSWSC 147
- R v Falconer (1990) 171 CLR 30
- R v Fang (No 3) [2017] NSWSC 28
- Fang v R [2018] NSWCCA 210
- R v Ham [2009] NSWSC 296
- R v Derbin [2000] NSWCCA 361
- Radford v R (1985) 42 SASR 266
- Stones (1955) 56 SR (NSW) 25