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Supreme Court 22 January 2021

R v Deakin

[2021] NSWSC 20

Assault & violenceHomicide
CRIME MENTAL ILLNESS MURDER AND ATTEMPTED MURDER ACCUSED STABBED HIS GRANDFATHER CONCESSION CORRECTLY MADE MENTAL ILLNESS DEFENCE PROVEN

Citation: R v Deakin [2021] NSWSC 20
Court: Supreme Court of New South Wales
Date: 22 January 2021
Judge: Beech-Jones J

Background

On 1 June 2018, the accused killed his grandmother and a member of the public, and stabbed his grandfather with intent to murder him, in a sequence of violent events spanning less than two hours in Bega, NSW. Psychiatric evidence established that at the time of the offences the accused believed his grandparents were vampires and that the member of the public who tried to calm him was part of a conspiracy against him. The accused was charged with two counts of murder and one count of causing grievous bodily harm with intent to murder.

The accused pleaded not guilty by reason of mental illness to all three counts. The trial proceeded before a judge alone, pursuant to an order made under s 132 of the Criminal Procedure Act 1986, and was heard over three days in January 2021.

Three psychiatrists provided reports before trial: two engaged by the Crown (Professor Greenberg and Dr Martin) and one engaged by the accused (Dr Neilssen). Each concluded, with varying degrees of certainty, that the mental illness defence was made out. A question arose, however, as to whether the accused's psychosis on the day was caused by schizophrenia or by drug consumption.

  • Whether the accused had discharged his onus of proving, on the balance of probabilities, that he was mentally ill at the time of the offences within the meaning of s 38(1) of the Mental Health (Forensic Provisions) Act 1990.
  • Whether the accused's psychotic state on 1 June 2018 was attributable to schizophrenia (a disease of the mind capable of grounding the defence) rather than drug-induced psychosis.
  • Whether, by reason of that mental illness, the accused was unable to reason with a moderate degree of sense and composure about whether his conduct was wrong according to the ordinary standards of reasonable people.
  • Whether the accused should be detained or conditionally released following a not guilty by reason of mental illness verdict.

Decision

The Crown accepted at the outset that the accused was psychotic on 1 June 2018, but initially contested the defence by pursuing the possibility, raised by Professor Greenberg and Dr Martin, that the psychosis was drug-induced rather than caused by schizophrenia. Drug-induced psychosis does not constitute a disease of the mind for the purposes of the mental illness defence, and so the distinction was legally significant.

After all three psychiatrists gave evidence together in a joint session on 19 January 2021, the Crown conceded that the accused had made out his defence. Beech-Jones J concluded that the concession was correctly made. The psychiatric evidence, taken as a whole, established on the balance of probabilities that the accused was suffering from schizophrenia and was in a psychotic state at the time of the offences.

As a consequence of that psychosis, the accused believed his grandparents were vampires and that the member of the public posed a conspiratorial threat to him. The court found that those delusions meant the accused could not reason with a moderate degree of sense and composure about whether his conduct was wrong, satisfying the legal test derived from McNaghten's Case and as interpreted in Australian courts including in The King v Porter (1933) 55 CLR 182.

Because the mental illness defence was established, verdicts of not guilty by reason of mental illness were entered on all three principal counts. The court also addressed a charge of driving with a prescribed illicit drug in his blood, returning a simple not guilty verdict on that count after considering the pharmacological evidence. The court was not satisfied that the accused's release would be safe, and ordered his detention until released by due process of law, with ongoing oversight by the Mental Health Review Tribunal.

Orders Made

  • On count 1 (causing grievous bodily harm with intent to murder the accused's grandfather): not guilty by reason of mental illness.
  • On count 2 (murder of the accused's grandmother): not guilty by reason of mental illness.
  • On count 3 (murder of Michael Horne): not guilty by reason of mental illness.
  • On the related charges (including driving offences and failing to stop when pursued by police): not guilty by reason of mental illness on each.
  • On the charge of driving with a prescribed illicit drug in his blood: not guilty.
  • The accused to be detained in a correctional facility or such other place as determined by the Mental Health Review Tribunal, until released by due process of law (s 39(1) of the Mental Health (Forensic Provisions) Act 1990).
  • The Registrar directed to notify the Mental Health Review Tribunal and provide it with the reasons for verdict, trial transcript, victim impact statement, and psychiatric reports.

Key Takeaways

  • The mental illness defence under s 38(1) of the Mental Health (Forensic Provisions) Act 1990 requires the accused to prove, on the balance of probabilities, that at the time of the offence a disease of the mind prevented them from reasoning with a moderate degree of sense and composure about whether their conduct was wrong by ordinary standards.
  • Drug-induced psychosis does not constitute a "disease of the mind" for the purposes of the mental illness defence, making the distinction between drug-induced psychosis and schizophrenia a critical factual question in cases where both diagnoses are raised.
  • Where the Crown initially contests a mental illness defence but later concedes it following joint expert evidence, the court retains an independent obligation to consider whether the concession was correctly made, rather than simply accepting it.
  • A verdict of not guilty by reason of mental illness does not result in unconditional release. Under s 39(1) of the Mental Health (Forensic Provisions) Act 1990, the court must order detention unless satisfied that the safety of the accused or the public will not be seriously endangered, with the Mental Health Review Tribunal assuming ongoing review responsibility at six-monthly intervals.
  • Expert psychiatric evidence is not binding on a judge sitting alone, but cannot be disregarded capriciously, a principle the court identified as of particular significance in this case given the centrality of the psychiatric opinions to the outcome.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 37, 38, 39
- Crimes Act 1900 (NSW), ss 18, 27
- Criminal Procedure Act 1986 (NSW), ss 132, 133, 166
- Mental Health Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- McNaghten's Case (1843) 8 ER 718
- The King v Porter (1933) 55 CLR 182
- Stapleton v The Queen (1952) 86 CLR 358
- Hawkins v The Queen (1994) 179 CLR 500
- R v Jenkins (1963) 64 SR (NSW) 20
- R v S [1979] 2 NSWLR 1
- R v Matheson (1958) 42 Cr App R 145
- R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226
- Goodridge v R [2014] NSWCCA 37
- Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210
- R v Fang (No 3) (2017) 264 A Crim R 554; [2017] NSWSC 28
- R v Papley [2017] NSWSC 1068
- R v Quinn (No 2) [2016] NSWSC 1244
- R v Kemball [2020] NSWSC 1559