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Supreme Court 16 May 2019

R v Drummond-Murray

[2019] NSWSC 575

Assault & violenceHomicideTheft & property
CRIMINAL LAW MURDER STEALING DEFENCE RAISED OF MENTAL ILLNESS MURDER CAUSATION OF DEATH

Citation: R v Drummond-Murray [2019] NSWSC 575
Court: Supreme Court of New South Wales
Date: 16 May 2019
Judge: Wright J

Background

The accused was charged with four counts: the murder of a man at a Surry Hills homeless shelter on 16 August 2017; causing grievous bodily harm with intent to murder that same man on 6 November 2015 (an alternative to the murder count); assaulting a police constable on 7 November 2015; and stealing a knife from a Woolworths store on 6 November 2015.

The gap between the dates of the first and second counts reflects the nature of the alleged harm. The accused stabbed the victim on 6 November 2015, rendering him a tetraplegic. The victim did not die until nearly two years later, on 16 August 2017, with the Crown case being that his death resulted from the injuries and consequent tetraplegia.

The accused had a longstanding schizophrenic condition. Both a District Court fitness hearing (in 2017) and a subsequent Supreme Court finding (in December 2018) determined he was unfit to be tried. After the Mental Health Review Tribunal concluded in March 2019 that the accused would not become fit within 12 months, the Director of Public Prosecutions proceeded by way of a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW).

  • Whether the accused committed any of the four counts charged, assessed against the criminal standard of proof on the limited evidence available at a special hearing
  • Whether the defence of mental illness was established, specifically whether the accused suffered a defect of reason from a disease of the mind such that he did not know his actions were wrong
  • Whether the victim's death on 16 August 2017 was legally caused by the injuries inflicted on 6 November 2015 (for the purposes of the murder charge)

Decision

Wright J conducted the special hearing as a judge sitting alone, as no election was made by either party for a jury. A special hearing proceeds as closely as possible to a criminal trial, but the available verdicts include a finding that the accused is not guilty on the ground of mental illness. The accused was taken to have pleaded not guilty to each count.

Both the Crown and defence forensic psychiatrists were unanimous in their opinion that the accused suffered from schizophrenia or schizoaffective disorder, constituting a disease of the mind. Both experts further agreed that, at the time of the relevant conduct, the accused did not know his actions were wrong due to a defect of reason arising from that disease. This unanimous expert opinion directly satisfied the M'Naghten test for the mental illness defence, as it has been applied in Australian courts.

The causation question arose because the murder charge required proof that the victim's death resulted from the injuries inflicted almost two years earlier. Wright J addressed whether the stabbing and the resulting tetraplegia constituted a legally sufficient cause of the death in 2017.

Given the unanimous expert position and the joint submissions of both Crown and defence, the court returned verdicts of not guilty on the ground of mental illness on all four counts. The accused was ordered to be detained in custody until released by due process of law, pursuant to the statutory regime governing such verdicts.

Orders Made

  • Count 1 (murder): special verdict of not guilty on the ground of mental illness
  • Count 2 (causing grievous bodily harm with intent to murder): special verdict of not guilty on the ground of mental illness
  • Count 3 (assault of a police constable): special verdict of not guilty on the ground of mental illness
  • Count 4 (stealing): special verdict of not guilty on the ground of mental illness
  • Pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), the accused is to be returned to his current place of custody and detained there, or at such other place as is appropriate, until released by due process of law
  • The Registrar of the Court is to notify the Minister for Health and the Mental Health Review Tribunal of the verdicts and orders

Key Takeaways

  • Under the Mental Health (Forensic Provisions) Act 1990 (NSW), a person found unfit to be tried may nonetheless face a special hearing, which proceeds as nearly as possible to a criminal trial and can result in a verdict of not guilty on the ground of mental illness.
  • The M'Naghten test remains the applicable standard for the mental illness defence in New South Wales: an accused must have suffered a defect of reason from a disease of the mind such that they did not know their actions were wrong at the time of the conduct.
  • Where both the Crown and defence forensic psychiatrists agree that an accused did not know their actions were wrong due to a recognised mental illness, that unanimous expert opinion directly supports the mental illness defence across all counts, including charges of lesser gravity such as assault and theft.
  • A not guilty verdict on the ground of mental illness does not result in unconditional release. Section 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW) requires the accused to be detained until released by due process of law, with the Mental Health Review Tribunal and the Minister for Health notified accordingly.
  • The decision also raised, in the context of the murder count, the question of legal causation where death occurs nearly two years after the infliction of injuries, illustrating that the chain of causation can extend over a substantial period where ongoing medical consequences are established.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 27, 58, 117
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 16, 19, 21, 21A, 21B, 22, 38, 39
- Evidence Act 1995 (NSW)

Cases
- M'Naghten's Case (1843) 10 Cl & Fin 200; 8 ER 718
- The King v Porter (1933) 55 CLR 182; [1933] HCA 1
- The Queen v Falconer (1990) 171 CLR 30; [1990] HCA 49
- Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
- Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28
- Radford v R (1985) 42 SASR 266
- R v Zvonaric (2001) 54 NSWLR 1; [2001] NSWCCA 505
- R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226
- Da-Pra v R; R v Da-Pra [2014] NSWCCA 211
- Reynolds v R [2015] NSWCCA 29
- Dunkley-Price v The Queen (2015) 73 MVR 450
- Robb v The Queen [2016] VSCA 125
- R v Hadler (No 2) [2018] NSWSC 1804
- R v Drummond-Murray [2018] NSWSC 1870