AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 4 December 2020

R v Coluccio (No 2)

[2020] NSWSC 1742

Homicide
CRIME MURDER DEFENCE OF MENTAL ILLNESS JUDGE ALONE SPECIAL HEARING ELDERLY HUSBAND STABS WIFE OF 48 YEARS INABILITY TO CONCEIVE OF WRONGFULNESS

Citation: R v Coluccio (No 2) [2020] NSWSC 1742
Court: Supreme Court of New South Wales
Date: 4 December 2020
Judge(s): R A Hulme J

Background

The accused, a 75-year-old man, was charged with the murder of his wife of 48 years. The killing occurred on 4 February 2019, when the accused stabbed his wife through the heart with a kitchen knife while she slept on the lounge. He then washed the knife, drove himself to the nearest police station, and made immediate admissions to police.

The accused had a long psychiatric history dating to the early 1990s, following the disappearance of his brother. He had been diagnosed with paranoid psychosis and had previously attacked his wife with a knife in 1995. For many years, his condition was stabilised with the antipsychotic medication Stelazine, prescribed by his treating psychiatrist. Approximately six months before the offence, Stelazine was withdrawn from the market, and the accused was still adjusting to a replacement medication at the time of the killing.

This was a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW). Hulme J had previously found the accused unfit to be tried, and the Mental Health Review Tribunal confirmed that unfitness was likely to continue for at least a year. The Crown elected to proceed to a special hearing rather than stay the proceedings, and both parties agreed the matter should be determined by the judge alone rather than by a jury.

  • Whether the accused was proven beyond reasonable doubt to have committed the act causing his wife's death
  • Whether the accused was not guilty by reason of mental illness, on the basis that a mental illness caused a defect of reason such that he did not know the nature and quality of the act, or did not know that it was morally wrong (the M'Naghten test)
  • Whether the accused could be released from custody, or whether he was required to be detained under s 39 of the Act

Decision

Hulme J was satisfied beyond reasonable doubt that the accused had caused his wife's death by a voluntary and unlawful act. The accused had made repeated admissions, demonstrated the stabbing motion to detectives, confirmed his intention to kill, and the autopsy confirmed that the stab wound was the sole cause of death. The depth and location of the wound indicated an intention to cause very grave harm or death.

Three forensic psychiatrists, Professor Greenberg, Dr Martin, and Dr Watt, reached a consensus diagnosis of schizoaffective disorder. They agreed that at the time of the killing, the accused was experiencing a relapse of his psychosis, likely triggered by the change in medication combined with his age. His psychosis manifested as delusions of jealousy: he believed his wife had been unfaithful, that his children were illegitimate, that they were mocking him, and that his deceased brother was God and was controlling him.

The psychiatrists agreed that the accused understood the nature and quality of his actions. He formed a deliberate intention to kill, waited for his wife to fall asleep, and then carried out that intention. His conduct in washing the knife and turning himself in to police also indicated awareness that his actions were legally wrong. However, the psychiatric evidence was unanimous that he could not conceive of the moral wrongfulness of what he was doing, because his delusional state deprived him of any capacity to reason about his actions. That incapacity, the court found, satisfied the M'Naghten test.

On the question of release, the court declined to order that the accused be released. He had expressed suicidal ideation in custody, and his own representatives conceded he posed a danger to himself at minimum. Dr Martin's view was that ongoing detention in a secure therapeutic environment was essential. The court instead ordered continued detention with placement to be determined by the Mental Health Review Tribunal, and recommended the Tribunal consider transferring the accused to a secure therapeutic facility as a matter of priority.

Orders Made

  • The accused is not guilty by reason of mental illness of the murder of his wife, pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990
  • The accused is to be detained at a correctional facility or such other place as determined by the Mental Health Review Tribunal from time to time, until released by due process of law, pursuant to s 39 of the Act
  • The Registrar is to notify the Minister for Health of the orders as soon as practicable
  • The Registrar is to notify the Mental Health Review Tribunal and Justice Health and Forensic Mental Health Network of the orders, and provide a copy of the judgment and exhibits including the psychiatric reports
  • The court recommended the Mental Health Review Tribunal consider the accused's case as soon as practicable, with a view to transferring him to a secure therapeutic facility

Key Takeaways

  • The M'Naghten test for mental illness as a complete defence requires proof that the accused either did not know the nature and quality of the act, or did not know it was morally wrong. In this case, awareness of legal wrongfulness was not sufficient to defeat the defence; the critical finding was the accused's incapacity to conceive of moral wrongfulness arising from his psychotic delusions.

  • A special hearing under the Mental Health (Forensic Provisions) Act 1990 proceeds even where the accused is unfit to be tried. The Act provides that the accused is taken to have pleaded not guilty, and the purpose of the hearing is to ensure no finding adverse to the accused is made unless the charge can be proven to the criminal standard.

  • Where psychiatric evidence in support of the mental illness defence is uncontested, s 38 of the Act directs the court to return a special verdict of not guilty by reason of mental illness. The Crown itself submitted it was open to the court to make that finding on the basis of the uncontested medical evidence.

  • A diagnosis of schizoaffective disorder with a documented history of psychosis, destabilised by a forced medication change, can ground a successful mental illness defence even where the accused's conduct was goal-directed and deliberate.

  • Returning a special verdict of not guilty by reason of mental illness does not result in the accused's release. Under s 39 of the Act, release requires the court to be satisfied on the balance of probabilities that the accused will not seriously endanger any person or member of the public. Where that threshold is not met, the accused is detained with placement determined by the Mental Health Review Tribunal.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 19, 21, 21A, 38, 39
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases:
- R v Coluccio [2020] NSWSC 855 (earlier unfitness finding in the same proceedings)
- R v M'Naghten (1843) 8 ER 817 (foundational statement of the mental illness defence test)
- R v Pesamino [2002] NSWSC 1188
- R v Porter (1933) 55 CLR 182
- The Queen v Falconer (1990) 171 CLR 30 (onus of proof on the mental illness defence)