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Supreme Court 27 March 2019

R v Osmand

[2019] NSWSC 326

Homicide
CRIMINAL LAW OFFENCES AGAINST THE PERSON MURDER TRIAL BY JUDGE ALONE SPECIAL VERDICT NOT GUILTY BY REASON OF MENTAL ILLNESS

Citation: R v Osmand [2019] NSWSC 326
Court: Supreme Court of New South Wales
Date: 27 March 2019
Judge: Campbell J

Background

The accused was charged with the murder of his friend, who had been staying at the accused's rural property near Armidale during a temporary separation from his wife. During the second 2017 State of Origin rugby league game, the accused fatally stabbed the deceased in the neck with a knife while the deceased was lying on a lounge in the accused's home. The wound was severe, severing major blood vessels and causing death from blood loss and respiratory failure.

The accused freely admitted to police the following morning that he had killed the deceased. That admission, combined with forensic and pathological evidence, left the physical facts of the killing undisputed. The sole question before the court was whether the accused had established the mental illness defence on the balance of probabilities.

The trial proceeded before a judge alone, following an election by the accused made with appropriate legal advice and with the Crown's consent, as required under the Criminal Procedure Act 1986 (NSW). Notably, the Crown did not oppose a special verdict of not guilty by reason of mental illness, though Campbell J emphasised that the determination remained his to make.

  • Whether the accused had established the mental illness defence on the balance of probabilities under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • Whether the accused's mental illness, identified as a schizophrenic disorder, deprived him of the capacity to know the nature and quality of his act, or to know that it was wrong
  • The correct legal meaning of "wrong" in this context, specifically whether it refers to legal wrongfulness alone or extends to moral wrongfulness

Decision

Campbell J found that the accused suffered from a schizophrenic disorder and was in the grip of a severe psychotic episode at the time of the killing. Evidence from two forensic psychiatrists, Professor Greenberg and Dr Nielssen, established that the accused held a delusional belief that an alien threat required him to act. His telephone call to his mother shortly before or around the time of the killing illustrated the nature and severity of those delusions, including his stated belief that "the aliens are here and they are going to cook the earth unless I do something."

The judgment engaged with the M'Naghten rules as applied in Australian law, particularly the question of what it means for an accused not to know their act was "wrong." Applying the High Court's analysis in cases including Stapleton v R (1952) 86 CLR 358 and The King v Porter (1933) 55 CLR 182, Campbell J confirmed that "wrong" in this context means more than mere legal wrongfulness. It encompasses the capacity to reason about whether an act is wrong by the standards of reasonable people, that is, moral wrongfulness in the broad sense.

On the facts, the court was satisfied that the accused's delusional state deprived him of the capacity to know that the killing was wrong in either the legal or moral sense. His psychosis was so severe that he could not reason about the morality of his actions against ordinary community standards. The court was therefore persuaded on the balance of probabilities that the mental illness defence was made out.

Campbell J noted that a special verdict is expressly not the same as a verdict of not guilty in the ordinary sense. The accused was found still to present a danger to the community, with expert evidence indicating his condition was treatment-resistant, and detention was ordered accordingly.

Orders Made

  • Under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty of the charge of murder by reason of mental illness was returned.
  • Under s 39 of the Act, the accused is to be detained in a correctional facility or 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 judgment and the reports of Professor Greenberg and Dr Nielssen.

Key Takeaways

  • A special verdict of not guilty by reason of mental illness is not an acquittal in the ordinary sense. Under the Mental Health (Forensic Provisions) Act 1990 (NSW), the accused remains subject to detention and ongoing supervision by the Mental Health Review Tribunal, and cannot be released unless the Tribunal is satisfied the person will not seriously endanger others or themselves.

  • The legal test for "wrong" in the mental illness defence extends beyond knowledge that an act is illegal. Applying established High Court authority, the Supreme Court confirmed that the relevant question is whether the accused was capable of reasoning about whether the act was wrong by the standards of ordinary reasonable people.

  • Where both the Crown and defence accept that the mental illness defence is made out, a judge sitting alone retains an independent obligation to assess the evidence and determine whether the defence is established on the balance of probabilities. The parties' agreement does not remove the court's own responsibility.

  • Severe psychotic delusions of a paranoid or persecutory character, supported by contemporaneous evidence such as statements made at the time of the offence, can satisfy the court that an accused lacked the capacity to know their act was wrong in the legally relevant sense.

  • Under s 43(a) of the Forensic Provisions Act, the Mental Health Review Tribunal may not release a forensic patient into the community unless satisfied that the person will not seriously endanger any person, including themselves, and must provide notice to the relevant Ministers before doing so.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 38A, 39, 43(a)

Cases
- R v M'Naghten (1843) 8 ER 718
- The King v Porter (1933) 55 CLR 182; [1933] HCA 1
- Alford v Magee (1952) 85 CLR 437
- Stapleton v R (1952) 86 CLR 358
- R v Codere [1916] 12 CR App R 21
- R v Jenkins (1963) 64 SR (NSW) 20
- R v Pratt [2009] NSWSC 1108
- R v Rodrigues [2010] NSWSC 198