Citation: R v Le [2019] NSWSC 483
Court: Supreme Court of New South Wales
Date: 30 April 2019
Judge(s): Wright J
Background
The accused was charged with the murder and armed robbery of a man at a unit block car park in Campsie, NSW, on 28 March 2015. The Crown alleged that the accused travelled from Cherrybrook to Campsie in response to text messages from an associate suggesting that someone had won money and that they should "take" it. The accused was said to have attacked the deceased with a knife in the underground car park, stabbing him multiple times, cutting his throat, and then taking the deceased's mobile phone and satchel bag before leaving the scene.
The accused was found unfit to be tried in April 2018, and the Mental Health Review Tribunal subsequently determined he would not become fit within 12 months. As a result, the matter proceeded to a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW). The accused was represented by counsel, and the special hearing ran over 11 days before Wright J sitting alone, without a jury.
The defence did not rely on the defence of mental illness. Instead, it challenged whether the Crown had established the accused's guilt beyond reasonable doubt on the circumstantial evidence, and alternatively argued that the accused's schizoaffective disorder substantially impaired his capacity at the time of the offence, reducing murder to manslaughter under s 23A of the Crimes Act 1990 (NSW).
Legal Issues
- Whether, on the limited evidence available, the Crown had proved beyond reasonable doubt that the accused committed the murder and armed robbery as charged, given the defence contention that a third party (referred to as Mr Shen) may have been responsible for the fatal injuries.
- Whether the accused suffered from an abnormality of mind arising from an underlying condition within the meaning of s 23A of the Crimes Act 1990 (NSW).
- Whether that abnormality of mind substantially impaired the accused's capacity to understand events, to judge whether his actions were right or wrong, or to control himself.
- Whether the partial defence of substantial impairment reduced the verdict on count one from murder to manslaughter.
Decision
Wright J was satisfied, on the limited evidence available, that the Crown had proved beyond reasonable doubt that the accused committed both the murder and the armed robbery. The defence argument that Mr Shen may have been responsible for the fatal injuries was assessed against the circumstantial evidence as a whole, including DNA evidence, telephone records, CCTV footage, and the accused's own admissions in recorded interviews. The court was not left with a reasonable doubt by the suggestion that Mr Shen was the perpetrator of the stabbing.
On the partial defence of substantial impairment, the court accepted that the accused suffered from schizoaffective disorder, a recognised mental illness, and that this constituted an abnormality of mind arising from an underlying condition at the time of the offence. Psychiatric evidence established that the disorder substantially impaired the accused's capacity to understand events, to judge whether his actions were right or wrong, or to control himself. The impairment met the statutory threshold of being "substantial" within the meaning of s 23A.
Because the partial defence was established on the balance of probabilities, Wright J returned a verdict that, on the limited evidence available, the accused committed manslaughter rather than murder on count one. The court also returned a verdict that, on the limited evidence available, the accused committed the armed robbery charged in count two.
Orders Made
• The accused is not guilty of murder on count 1, but guilty of manslaughter
• The accused is guilty of robbery armed with an offensive weapon on count 2
Key Takeaways
- A special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) proceeds as nearly as possible to a criminal trial, but the verdicts available differ: the court determines whether, on the limited evidence available, the accused committed the offence charged, an alternative offence, or should be acquitted.
- The partial defence of substantial impairment under s 23A of the Crimes Act 1990 (NSW) applies in special hearings and, if established on the balance of probabilities, reduces a verdict of murder to manslaughter, even where the underlying finding is expressed in terms of the "limited evidence" standard.
- Where an accused suffers from schizoaffective disorder at the time of an offence, that condition can constitute an "abnormality of mind arising from an underlying condition" for the purposes of s 23A, provided the evidence establishes that it substantially impaired the relevant capacities.
- In a circumstantial Crown case, the court applied the principle that guilt must be the only rational inference available from the facts taken as a whole, consistent with Shepherd v The Queen (1990) 170 CLR 573, before returning a verdict on the limited evidence standard.
- The accused's inability to participate in the proceedings due to unfitness did not preclude a finding of criminal conduct; the special hearing regime exists precisely to resolve such cases while protecting the accused's interests through mandatory legal representation and a not guilty plea entered by the court.
Legislation and Cases Referenced
Legislation
- Crimes Act 1990 (NSW), s 23A (substantial impairment by abnormality of mind)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 21, 21A, 21B, 22
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Cases
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Quinn v R [2018] NSWCCA 297
- R v Hutchison & Wilkinson [2018] NSWSC 1759
- R v Qaumi & Qaumi (No 12) [2017] NSWSC 134
- R v Trotter (1993) 35 NSWLR 428
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56