Citation: R v Degei [2021] NSWSC 45
Court: Supreme Court of New South Wales
Date: 5 February 2021
Judge: Hidden AJ
Background
The accused was charged with the murder of a 64-year-old woman at Carramar on 25 August 2018. He had been discharged from a mental health facility just 17 days before the incident and had not taken his prescribed antipsychotic medication in the two days leading up to the events. On the day in question, he had consumed alcohol and cannabis.
Witnesses observed the accused behaving in a disturbed and apparently irrational manner throughout the day. In the early afternoon, he approached a residential unit complex, collapsed in the garden, then rose and attacked the deceased, an unknown woman who had come outside to assist him. He punched her and stomped on her head three times. After the attack, he walked past a witness in a casual manner, appearing, in that witness's words, "disconnected from reality." The deceased died from blunt force head injuries.
Because of his mental illness, the accused was found unfit to stand trial. The matter therefore proceeded as a special hearing under s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW), conducted by a judge sitting without a jury. The accused also faced a series of related offences on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), including assaulting a police officer and resisting arrest.
Legal Issues
- Whether the accused was not guilty by reason of mental illness of the murder charge, applying the defence under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW)
- Which limb of the M'Naghten Rules applied, specifically whether the accused did not know that his acts were morally wrong
- Whether the same verdict of not guilty by reason of mental illness should be applied to the related offences on the s 166 certificate
Decision
Hidden AJ was satisfied beyond reasonable doubt that the accused caused the death of the deceased by deliberate acts. The question then turned to whether the defence of mental illness was established on the balance of probabilities, the burden borne by the accused.
The court applied the M'Naghten Rules as consistently interpreted in Australian authority. The relevant test, drawn from decisions including Stapleton v The Queen (1952) 86 CLR 358 and The King v Porter (1933) 55 CLR 182, asks whether the accused, due to a disordered state of mind caused by mental illness, either did not understand the nature and quality of his acts, or did not know that those acts were wrong by the everyday standards of reasonable people. The focus in this case was the second limb: whether the accused appreciated the moral wrongfulness of his conduct.
Two forensic psychiatrists, one retained by the defence and one by the Crown, assessed the accused. Both were in agreement that the elements of the mental illness defence were made out at the time of the alleged offences. In light of that uncontested expert opinion, the court was satisfied that the accused did not know his acts were morally wrong. Hidden AJ accordingly found the accused not guilty by reason of mental illness on the murder charge.
The court also applied the same verdict to the related offences recorded on the s 166 certificate (common assault, assaulting a police officer, and two counts of resisting an officer). His Honour accepted the Crown prosecutor's submission that all those offences were committed in the course of the same psychotic episode. This approach was consistent with that taken by Beech-Jones J in the earlier decision of R v Deakin [2021] NSWSC 20.
Orders Made
- The accused is not guilty by reason of mental illness of the murder charged in the indictment.
- The accused is not guilty by reason of mental illness of each of the charges in sequences 2 to 5 on the s 166 certificate.
- Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the accused is to be detained at a correctional facility or such other place as determined from time to time by the Mental Health Review Tribunal, until released by due process of law.
- The Registrar is to notify the Minister for Health as soon as practicable.
- The Registrar is to notify the Mental Health Review Tribunal and Justice Health and Forensic Mental Health Network, and provide copies of the judgment, orders, trial transcript, and the medical reports of Dr Furst (dated 4 February 2019) and Professor Greenberg (dated 23 February 2020 and 27 January 2021).
Key Takeaways
- At a special hearing under s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a verdict of not guilty by reason of mental illness is available under s 22(1)(b), even where the accused is unfit to stand trial.
- The mental illness defence requires the accused to establish, on the balance of probabilities, that due to a disordered state of mind caused by mental illness, they either did not understand the nature and quality of their acts or did not know those acts were morally wrong by everyday community standards.
- Where both the defence and Crown psychiatric experts agree that the elements of the mental illness defence are made out, the court found that agreement to be determinative on the question of moral wrongfulness.
- Related offences recorded on a s 166 certificate that arise from the same psychotic episode as the principal charge may appropriately receive the same verdict of not guilty by reason of mental illness, consistent with the approach in R v Deakin [2021] NSWSC 20.
- A verdict of not guilty by reason of mental illness does not result in unconditional release. Under s 39 of the Act, the accused is detained and remains subject to supervision by the Mental Health Review Tribunal until released by due process of law.
Legislation and Cases Referenced
Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 16, 19, 22(1)(b), 38, 39
- Criminal Procedure Act 1986 (NSW), s 166
Cases:
- Hawkins v The Queen (1994) 179 CLR 500
- Stapleton v The Queen (1952) 86 CLR 358
- The King v Porter (1933) 55 CLR 182
- R v Degei [2020] NSWSC 1267
- R v Deakin [2021] NSWSC 20