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Supreme Court 4 December 2019

R v Khatib

[2019] NSWSC 1734

Homicide
CRIMINAL LAW MENTAL HEALTH DEFENCE PSYCHIATRIC EVIDENCE ACCUSED SUFFERED DEFECT OF REASONING ACCUSED UNABLE TO REASON WRONGFULNESS ACCUSED MENTALLY ILL AT TIME OF OFFENCE

Citation: R v Khatib [2019] NSWSC 1734
Court: Supreme Court of New South Wales
Date: 4 December 2019
Judge: Walton J

Background

The accused was charged with the murder of her 63-year-old mother at the family home in South Granville on 25 January 2018. It was not in dispute that the accused stabbed her mother five times between 6.10am and 6.18am that morning, and that one of those wounds proved fatal. The accused admitted the stabbing in a lengthy police interview conducted shortly after the incident.

The accused entered a plea of not guilty by reason of mental illness. The matter proceeded as a judge-alone trial under s 132 of the Criminal Procedure Act 1986 (NSW). The sole issue before the Court was whether the mental illness defence was made out under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

Two psychiatrists gave evidence: a consultant forensic psychiatrist called by the accused, and a psychiatrist called by the Crown. Both experts were cross-examined, and their evidence was unanimous in supporting the mental illness defence.

  • Whether the Crown had established beyond reasonable doubt that the accused voluntarily committed the act causing death, setting aside any mental illness.
  • Whether the accused was, at the time of the offence, labouring under such a defect of reason from a disease of the mind as to not know the nature and quality of her act, or alternatively, not know that what she was doing was wrong, satisfying the test in R v M'Naghten (1843).
  • What order should be made under s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW) following any special verdict.

Decision

Walton J first found that the Crown had established beyond reasonable doubt that the accused voluntarily committed the act causing the deceased's death, setting aside any consideration of mental illness. That factual foundation was uncontested.

The Court then turned to the mental illness defence. The applicable test is drawn from R v M'Naghten: an accused person is not criminally responsible if, at the time of the act, they were labouring under such a defect of reason from a disease of the mind as to not know the nature and quality of the act, or, if they did know it, not know that it was wrong. The onus rests on the accused to establish the defence on the balance of probabilities.

The psychiatric evidence of both Dr Furst and Professor Greenberg was unanimous in supporting the conclusion that the accused suffered from a disease of the mind and that this produced a defect of reasoning. On the basis of that unanimous expert evidence, and consistent with the principle in Tumanako v R (1992) that unanimous medical evidence cannot be rejected in the absence of other material casting doubt on it, Walton J was satisfied that the defence was made out. Specifically, the accused was found to have been unable, at the time of the offence, to reason about the wrongfulness of her act in accordance with the ordinary standards of reasonable people.

Having returned a special verdict of not guilty by reason of mental illness, the Court considered its obligations under s 39 of the Act. Counsel for the accused did not seek an immediate release into the community. The Court accepted that position, noting that both experts agreed the accused required ongoing assertive psychiatric care and forensic mental health services.

Orders Made

  • The accused was found not guilty of murder on the grounds of mental illness.
  • Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the accused was ordered 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 Attorney General, the Minister for Health, and the Mental Health Review Tribunal of the orders as soon as practicable.
  • The Registrar was directed to provide the Tribunal with a copy of the Court's reasons and the reports of both psychiatric experts.

Key Takeaways

  • The M'Naghten test, as clarified by Dixon J in The King v Porter (1933), requires that the accused, through a disease of the mind, was unable to reason about the wrongfulness of the act with a moderate degree of sense and composure, measured against the everyday standards of reasonable people.
  • Where psychiatric evidence supporting the mental illness defence is unanimous, a tribunal of fact cannot reject that evidence unless there is other material casting doubt on it, applying the principle from Tumanako v R (1992).
  • A disease of the mind encompasses any condition, temporary or permanent, of mental or physical origin, that throws the functions of reason, memory, or understanding into a state of derangement, but does not include the transitory effects of external factors such as drugs, violence, or psychological trauma acting on an otherwise healthy mind.
  • Under s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a court returning a special verdict must make an order addressing the accused's immediate future and cannot order release into the community unless satisfied, on the balance of probabilities, that the safety of the accused or the public will not be seriously endangered.
  • In judge-alone trials under s 132 of the Criminal Procedure Act 1986 (NSW), the judge carries the same obligations as a jury when evaluating the mental illness defence and determining whether the Crown has proved the underlying act beyond reasonable doubt before the defence falls for consideration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39

Cases
- R v M'Naghten (1843) 8 ER 718
- The King v Porter (1933) 55 CLR 182; [1933] HCA 1
- Stapleton v The Queen [1952] HCA 56; 86 CLR 358
- Mizzi v The Queen (1960) 105 CLR 659; [1960] HCA 77
- The Queen v Falconer (1990) 171 CLR 30; [1990] HCA 49
- Tumanako v R (1992) 64 A Crim R 149
- Hawkins v The Queen (1994) 174 CLR 500; [1994] HCA 28
- R v Minnani (2005) 63 NSWLR 490; [2005] NSWCCA 226
- R v Pratt [2009] NSWSC 1108
- R v Rodriguez [2010] NSWSC 198
- R v Lopez [2014] NSWSC 287
- R v Opie [2014] NSWSC 814
- R v Gourlay [2015] NSWSC 67
- R v Papley [2017] NSWSC 1068