AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 20 May 2019

R v Brian Lee (No.2)

[2019] NSWSC 586

Homicide
CRIME CRIMINAL LIABILITY MENTAL ILLNESS DEFENCE PROVED NO ISSUE OF PRINCIPLE

Citation: R v Brian Lee (No.2) [2019] NSWSC 586
Court: Supreme Court of New South Wales
Date: 20 May 2019
Judge(s): Garling J

Background

The accused was a 29-year-old man with a lengthy documented history of chronic schizophrenia who was charged with the murder of a stranger on the morning of 13 January 2018 in Hurstville, New South Wales. The victim, a 56-year-old man, was sitting on a bench in a park near Hurstville Railway Station eating breakfast when the accused approached him from behind and stabbed him, causing fatal wounds to his neck and chest.

The accused elected to be tried by judge alone. Both the Crown and defence agreed on all the relevant facts surrounding the death, with the only issue being whether a special verdict of not guilty by reason of mental illness should be entered under section 38 of the Mental Health (Forensic Provisions) Act 1990.

The accused had been diagnosed with schizophrenia in 2008 and had a documented history of hallucinations, paranoid delusions, and prior psychiatric admissions. His twin brother had alerted police before the stabbing that the accused appeared to be experiencing a psychotic episode and had said he intended to stab someone.

Legal Issues

  • Whether the Crown proved all elements of murder beyond reasonable doubt, absent the mental illness defence
  • Whether the accused was suffering from a mental illness at the time of the offence, specifically whether his schizophrenia constituted a "disease of the mind" for the purposes of the defence
  • Whether the accused's mental illness was such that he did not know that what he was doing was wrong, applying the M'Naughten test as formulated by Dixon J in R v Porter (1933) 55 CLR 182
  • Whether a special verdict of not guilty by reason of mental illness should be returned under section 38 of the Mental Health (Forensic Provisions) Act 1990

Decision

Issue 1: Elements of murder

Garling J was satisfied beyond reasonable doubt that the accused stabbed the deceased, causing his death, and that he intended to cause grievous bodily harm. The court pointed to the number and nature of the stab wounds, the accused's statement to his brother before leaving the house that he intended to stab someone, and his multiple admissions after the event to his brother, a support person, and police (at [25]-[26]). Absent the mental illness defence, all elements of murder were established (at [26]).

Issue 2: Disease of the mind

Both forensic psychiatrists, Professor Greenberg and Dr Furst, agreed that the accused met the criteria for chronic schizophrenia and that schizophrenia constitutes a "disease of the mind" for the purposes of the mental illness defence. Garling J agreed with that characterisation (at [44]). The court was satisfied on the balance of probabilities that the accused suffered from a mental illness at the time he killed the deceased, characterised by highly systematised, detailed, and specific hallucinations and delusions (at [45]-[46]). The acute psychotic episode was likely triggered by the accused discontinuing his medication and a lack of supervision (at [46]).

Issue 3: Knowledge of wrongfulness

The central question was whether the accused knew that stabbing the deceased was wrong. The court applied the test formulated by Dixon J in R v Porter, asking whether the accused was incapable of reasoning about right and wrong by everyday standards of reasonable people (at [65]). The court found that the accused was aware of the nature and quality of his actions, having intentionally stabbed the deceased, but that the knowledge-of-wrongfulness limb was in issue (at [61]-[62]). The accused heard voices, including one he attributed to a fictional Vietnamese gangster named "Phuong," instructing him to retaliate for a fabricated childhood home invasion that was itself a product of his paranoid delusions (at [47]-[51]).

Issue 4: Special verdict

Garling J accepted the expert psychiatric evidence of both Professor Greenberg and Dr Furst, noting that no party had tendered evidence to cast doubt on their opinions (at [69]). The court was satisfied on the balance of probabilities that the accused did not know that what he was doing was wrong at the time of the killing (at [70]). A special verdict of not guilty by reason of mental illness was returned under section 38 of the Act. The court also found it inappropriate to release the accused into the community, with or without conditions, and directed that his future treatment and supervision be determined by the Mental Health Review Tribunal (at [71]-[72]).

Orders Made

  • The accused is not guilty of the offence of murder on the grounds of mental illness
  • The accused is to be detained at the Metropolitan Reception and Remand Centre at Silverwater, or at such other place as determined from time to time by the Mental Health Review Tribunal, until released by due process of law
  • The Registrar of the Court is directed to notify the Minister for Health of the judgment and order
  • The Registrar of the Court is directed to notify the Mental Health Review Tribunal of the judgment and order, and to provide the Tribunal with a copy of the reasons for verdict and orders, a transcript of the proceedings, and copies of all exhibits tendered at trial

Key Takeaways

  • Chronic schizophrenia constitutes a "disease of the mind" for the purposes of the mental illness defence under section 38 of the Mental Health (Forensic Provisions) Act 1990, a characterisation accepted by the Supreme Court where two forensic psychiatrists were in agreement and no contrary evidence was tendered (at [44]).

  • Under the M'Naughten test as applied in New South Wales, a defendant may know the nature and quality of their actions yet still satisfy the mental illness defence if, by reason of a disease of the mind, they were incapable of reasoning about right and wrong according to everyday standards of reasonable people (at [60]-[62], [65]).

  • Where both parties accept expert psychiatric evidence and no contrary evidence is tendered, a trial judge should not reject that evidence: the principle from R v Huy Pham [2007] NSWSC 1313 and R v Coles [2008] NSWSC 682, affirmed here, is that uncontested expert opinions should be accepted (at [69]).

  • An accused's awareness that an act was legally wrong does not necessarily defeat the mental illness defence. Professor Greenberg distinguished between legal and moral wrongfulness, and the court ultimately found that the accused did not know his actions were wrong in the relevant sense despite some apparent awareness of legal consequences (at [66], [70]).

  • Following a special verdict of not guilty by reason of mental illness in a judge-alone trial, section 39 of the Mental Health (Forensic Provisions) Act 1990 empowers the court to order detention and referral to the Mental Health Review Tribunal, rather than release into the community (at [71]-[74]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1990
- Criminal Procedure Act 1986
- Mental Health (Forensic Provisions) Act 1990
- Mental Health Act 2007

Cases
- Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
- Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659
- R v Coles [2008] NSWSC 682
- R v Huy Pham [2007] NSWSC 1313
- R v Matusevich & Thompson [1976] VR 470
- R v M'Naughten (1843) 8 ER 718
- R v Porter [1933] HCA 1;(1933) 55 CLR 182
- R v Rodriguez [2010] NSWSC 198
- R v Winningham (unreported, NSWCCA, 10 May 1995)
- Regina v Matheis (1958) 58 SR (NSW) 321
- Stapleton v The Queen [1952] HCA 55; (1952) 86 CLR 358