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Supreme Court 24 July 2019

R v BS

[2019] NSWSC 935

Homicide
CRIMINAL LAW TRIAL BY JUDGE ALONE KILLING OF 5 YEAR OLD BOY BY HIS FATHER DEFENCE OF MENTAL ILLNESS

Citation: R v BS [2019] NSWSC 935
Court: Supreme Court of New South Wales
Date: 24 July 2019
Judge: Hidden AJ

Background

The accused, a man with a long history of schizophrenia, was charged with the murder of his five-year-old son. The killing occurred at the family home on the morning of 8 June 2018, during what the evidence established was an acute psychotic episode. There was no dispute that the accused caused the child's death.

In the weeks leading up to the offence, the accused had been experiencing a significant relapse of his psychotic illness. He had been attended to by Community Mental Health Services on multiple occasions, was subject to a community treatment order, and had expressed delusional beliefs that his son was the devil. Family members, including his mother, had raised explicit concerns about the child's safety with clinicians.

The accused elected a trial by judge alone. The sole issue before the court was whether the defence of mental illness had been established.

  • Whether the accused had established, on the balance of probabilities, that he was not criminally responsible for the killing by reason of mental illness at the time of the offence.

Decision

The court applied the M'Naghten rules as they operate in New South Wales, which require an accused to prove on the balance of probabilities that, at the time of the act, he was suffering from a defect of reason arising from a disease of the mind such that he did not know the nature and quality of the act, or did not know that it was wrong.

Two forensic psychiatrists provided expert reports, and their conclusions were consistent. Both experts accepted that the accused was suffering from schizophrenia and was in the midst of an acute psychotic episode at the time of the killing. His motivation for the act was rooted entirely in his delusional belief system. He had sustained beliefs that his son was the devil, that he needed to kill him, and that both would subsequently be resurrected by God.

One expert noted that while the accused appeared to have had some awareness of what he was doing physically, his appreciation of the wrongfulness of his actions was severely and directly distorted by his psychotic state. The expert concluded that the offending occurred in direct nexus to delusional thinking arising from inadequately managed schizophrenia, and that the accused would not have been capable of reasoning with a moderate degree of composure.

Hidden AJ accepted this evidence. The Crown prosecutor also supported the submission that the defence had been made out. The court was satisfied on the balance of probabilities that the defence of mental illness was established, and entered a verdict of not guilty by reason of mental illness.

Orders Made

  • The accused was found not guilty by reason of mental illness.
  • The accused was to remain detained for an indefinite period, subject to treatment, rehabilitation, and supervision under the Mental Health Review Tribunal.
  • Upon any future release, the accused would remain subject to ongoing supervision, monitoring, and periodic Tribunal review.
  • The parties were to be consulted regarding the formal order to be made.

Key Takeaways

  • A verdict of not guilty by reason of mental illness does not result in immediate release. The accused remains subject to indefinite detention under the Mental Health Review Tribunal's supervision, with any eventual release accompanied by ongoing monitoring and periodic review.
  • The defence of mental illness is established on the balance of probabilities. This is a lower standard than the criminal standard applied to the prosecution's case.
  • Where an accused's motivation for an act is entirely rooted in delusional psychotic thinking, this can be sufficient to satisfy the requirement that the accused did not know the act was wrong, even where there is some awareness of what was physically occurring.
  • Consistent expert psychiatric evidence, combined with agreed facts, can allow a court to resolve the mental illness question without contested proceedings. Here, the Crown and defence were in agreement on the outcome.
  • The Supreme Court's judgment reflects the M'Naghten framework as clarified in Australian authorities including The King v Porter (1933) 55 CLR 182, which requires an inability to reason about the wrongness of an act with a moderate degree of composure.

Legislation and Cases Referenced

Cases:
- Hawkins v The Queen (1994) 179 CLR 500
- R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226
- The King v Porter (1933) 55 CLR 182

Legislation:
No specific legislation was cited in the provided text of the judgment.