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District Court 25 November 2019

R v Cottam

[2019] NSWDC 738

Assault & violence
CRIMINAL TRIAL BY JUDGE ALONE WOUND WITH INTENT TO MURDER IN THE ALTERNATIVE DEFENCE OF MENTAL ILLNESS

Citation: R v Cottam [2019] NSWDC 738
Court: District Court of New South Wales
Date: 25 November 2019
Judge: Bright DCJ

Background

The accused, a security guard, was charged with wounding a colleague with intent to murder (Count 1) and, in the alternative, wounding with intent to cause grievous bodily harm (Count 2). The alleged offences occurred on 14 October 2018 at a power station site at Colongra, NSW, when the accused produced a folding knife and stabbed the complainant multiple times as he arrived to relieve the accused from his shift. The two men were not well known to each other.

The complainant sustained a 5 cm deep neck wound, two chest wounds, a stomach wound, and a finger laceration. He required surgery that day. During the attack, the accused made a series of disjointed and bizarre statements, including that he needed to kill the complainant in order to "get a girlfriend" and references to zodiac signs.

The trial proceeded as a judge-alone trial. At its commencement, both the Crown and defence agreed that the only live issue was whether the accused was not guilty by reason of mental illness. No witnesses were called; the trial proceeded entirely on documentary evidence, including psychiatric reports and recorded interview transcripts.

  • Whether the accused was suffering from a disease of the mind at the time of the alleged offences
  • Whether, as a result of that disease, the accused was labouring under such a defect of reason that he did not know the nature and quality of his acts, or did not know that what he was doing was wrong (the M'Naghten test)
  • Which of the competing psychiatric opinions should be preferred where they diverged

Decision

Bright DCJ was satisfied on the balance of probabilities that the accused was suffering from schizophrenia at the time of the offences, constituting a "disease of the mind" for the purposes of the mental illness defence. The evidence of deteriorating mental health extended back to the accused's teenage years, and the judge found that active symptoms of schizophrenia were present at the time of the attack, as reflected in his conduct during the incident, his demeanour during the police interview, and his presentation in Justice Health records in the months following.

Applying the M'Naghten test (drawn from R v M'Naghten (1843) and confirmed in Australian law by R v Porter (1936)), the judge found that while the accused knew the nature and quality of his acts, he did not know that what he was doing was wrong. This distinction separates an awareness of the physical character of an act from an understanding of its moral or legal wrongfulness.

Four psychiatrists provided reports. Three (Dr Allnutt, Dr Samuels, and Dr Furst) concluded that the mental illness defence was established, though they differed on the precise limb of the M'Naghten test engaged. Dr Samuels opined that the accused did not know the nature and quality of his act. Bright DCJ preferred the opinions of Drs Allnutt and Furst, finding that the evidence better supported the conclusion that the accused knew what he was physically doing but did not appreciate it was wrong.

The Crown and defence were in agreement that a verdict of not guilty by reason of mental illness was appropriate. The judge nonetheless conducted an independent assessment of all evidence before returning verdicts on each count.

Orders Made

  • Not guilty by reason of mental illness entered on Count 1 (wounding with intent to murder)
  • Not guilty by reason of mental illness entered on Count 2 (wounding with intent to cause grievous bodily harm)
  • The accused remanded in custody until 29 November 2019 for the making of an order under section 39 of the Mental Health (Forensic Provisions) Act 1990

Key Takeaways

  • The District Court confirmed that agreement between the Crown and defence on a mental illness defence does not relieve the trial judge of the obligation to independently assess all evidence before returning verdicts.
  • Under the M'Naghten test, a successful defence of mental illness requires proof on the balance of probabilities that the accused, by reason of a disease of the mind, either did not know the nature and quality of their act, or did not know it was wrong. Satisfying either limb is sufficient.
  • Where psychiatric evidence is not unanimous, the court is required to evaluate and prefer the opinions it considers best supported by the available evidence. Bright DCJ here preferred two of three expert opinions on the precise limb of the test that was engaged.
  • Schizophrenia, where actively symptomatic at the time of an alleged offence, can constitute a "disease of the mind" sufficient to ground the mental illness defence.
  • A verdict of not guilty by reason of mental illness does not result in an unconditional release. Under section 38(2) of the Mental Health (Forensic Provisions) Act 1990, the court must remand the person for an order under section 39, which may include detention in a mental health facility.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 27, 33(1)(a)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39
- Mental Health Act 2007 (NSW)

Cases:
- R v M'Naghten (1843) 8 ER 718
- R v Porter (1936) 55 CLR 182
- Mizzi v The Queen [1960] HCA 77
- Thomas v The Queen (1960) 102 CLR 584
- R v Tumanako (1993) 64 A Crim R 149