Citation: R v Pesamino [2020] NSWSC 1188
Court: Supreme Court of New South Wales
Date: 2 September 2020
Judge: Wilson J
Background
The accused was a resident at a block of units in Villawood, New South Wales. He faced three charges arising from two separate incidents in 2018: the murder of a fellow resident on 3 May 2018, assault occasioning actual bodily harm against a second resident on the same date, and a prior assault occasioning actual bodily harm against the deceased on 27 March 2018.
The March incident involved the accused grabbing the deceased by the throat and stamping on his foot, fracturing a toe. The May incident was far more serious: witnesses observed the accused attacking the deceased in his unit, causing catastrophic blunt force injuries to the face, head, and neck from which he died. During the attack, the accused also slammed a door into and pushed a neighbour who had intervened. The accused was found shortly after lying face-down in a nearby drain, unresponsive and moaning, with bloodied knuckles. He had no memory of the events.
The accused raised the defence of mental illness in respect of all three charges. The trial proceeded before Wilson J alone, without a jury, by consent of both parties.
Legal Issues
- Whether the Crown proved beyond reasonable doubt that the accused committed each of the three charged acts.
- Whether, on the defence of mental illness, the accused was suffering from a mental illness at the relevant times such that he was not criminally responsible for his actions under the M'Naghten rules as applied in New South Wales.
- Whether special verdicts of not guilty by reason of mental illness should be entered on all three counts.
Decision
Wilson J first confirmed the factual elements of each offence. The Crown's evidence, presented in documentary form without objection, established beyond reasonable doubt that the accused had deliberately assaulted the deceased on 27 March 2018, causing a fractured toe. It also established that the accused caused the deceased's death on 3 May 2018 through deliberate acts of blunt force violence, and that he assaulted the intervening neighbour on that same occasion. The accused called no evidence and did not dispute the facts.
The central issue was the defence of mental illness. Her Honour applied the M'Naghten rules, the long-standing common law test requiring the accused to have been suffering from a defect of reason, arising from a disease of the mind, such that he did not know the nature and quality of his act, or did not know that what he was doing was wrong. Expert psychiatric evidence supported the conclusion that the accused was suffering from a significant mental illness at the relevant times, and that his actions were driven by delusional beliefs, including irrational beliefs about someone breaking into his home, that had no connection to any actual conduct by the deceased.
Her Honour accepted the expert evidence and found that the defence of mental illness was established in respect of all three counts. She noted that the deceased had lived peacefully at the unit block for close to twenty years and did nothing to provoke either attack. His death, at age 41, was described as a terrible tragedy, and the Court extended its deepest sympathy to his family and friends.
Special verdicts of not guilty by reason of mental illness were returned on all three counts pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
Orders Made
- Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty by reason of mental illness was returned on each of counts 1, 2, and 3.
- Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the accused is to be detained in a correctional facility, or at 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 Minister for Health of the orders.
- The Registrar was directed to notify the Mental Health Review Tribunal of the verdicts and orders, and to provide the Tribunal with copies of the reasons, the indictment, and specified trial exhibits.
Key Takeaways
- Where the defence of mental illness is raised and supported by expert psychiatric evidence, the Crown must still prove the physical acts alleged beyond reasonable doubt before the court turns to the question of criminal responsibility.
- A special verdict of not guilty by reason of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) does not result in acquittal and release; s 39 requires the accused to be detained until released by due process of law, with the Mental Health Review Tribunal overseeing the process.
- The M'Naghten rules, as long confirmed in Australian jurisprudence, require proof that a disease of the mind caused a defect of reason such that the accused either did not know the nature and quality of the act, or did not know it was wrong.
- Delusional beliefs that have no rational basis in the conduct of the victim can ground the mental illness defence, even where the accused directed violence at a specific individual.
- The Supreme Court's approach here illustrates how a judge-alone trial operates in this context: where facts are undisputed, documentary evidence may suffice, and the judge resolves both the factual and legal elements of the mental illness defence without a jury.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 132, 132A
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39
Cases:
- R v M'Naghten (1843) 8 ER 718
- The King v Porter (1933) 55 CLR 182; [1933] HCA 1
- R v Falconer (1990) 171 CLR 30; [1990] HCA 49
- Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28
- Radford v R (1985) 42 SASR 266
- R v Jenkins [1964] NSWR 721
- R v Michaux [1984] 2 Qd R 159
- Taylor v R (1978) 22 ALR 599
- Tumanako v R (1992) 64 A Crim R 149