Citation: R v Risi [2022] NSWSC 862
Court: Supreme Court of New South Wales
Date: 1 July 2022
Judge(s): R A Hulme J
Background
The accused was charged with murdering Shannon Weller and assaulting Allyson Thornton occasioning actual bodily harm. Both offences were alleged to have occurred in late March 2020 at a home unit complex in Gladesville. The accused had developed a delusional infatuation with Ms Thornton, a resident at the complex, and had come to believe her partner, Mr Weller, was subjecting her to domestic violence.
On 23 March 2020, the accused entered the unit occupied by Ms Thornton and Mr Weller through a window, using a ladder. He was subsequently found to have changed his appearance at a nearby gym shortly afterwards. Mr Weller later died from injuries sustained during the incident.
Prior to trial, a judge had found the accused unfit to be tried, and the Mental Health Review Tribunal subsequently confirmed he would not become fit within the relevant 12-month period. The Director of Public Prosecutions elected to proceed, which required the convening of a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). No election was made for a jury, so the matter proceeded before a judge alone.
Legal Issues
- Whether the physical elements of the offences of murder and assault occasioning actual bodily harm were proved to the required standard on the limited evidence available at a special hearing
- Whether the accused had a valid defence of mental illness under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), specifically whether his mental health impairment and cognitive impairment meant he did not know that his acts were wrong
- What verdict was appropriate under s 59(1) of the Act given the findings on the above questions
Decision
Hulme J was satisfied beyond reasonable doubt that the physical elements of both offences were established on the evidence available. The accused had entered the unit without authorisation, inflicted injuries upon Ms Thornton and Mr Weller, and Mr Weller had died from those injuries. The accused's own statements to a third party shortly after the incident, along with his efforts to alter his appearance at a gym immediately afterwards, supported those findings.
The court then turned to the defence of mental illness under s 28 of the Act. Two forensic psychiatrists, Dr Allnutt and Dr Furst, gave evidence. Both agreed that the accused understood the nature and quality of his acts, which was consistent with his post-offence conduct in changing his clothing and shaving off his beard. However, both experts were of the opinion that the accused did not know his acts were wrong.
The court accepted the expert evidence that the accused held a delusional belief that Ms Thornton was in danger from Mr Weller and that he was acting to protect her. Hulme J found that this delusional belief, arising from both a mental health impairment and a cognitive impairment, meant the accused could not reason with a moderate degree of sense and composure about whether the killing was wrong. He most likely believed his actions were necessary to protect Ms Thornton.
On that basis, the court was satisfied on the balance of probabilities that the defence of mental illness was made out. Although Dr Allnutt's opinion on the accused's psychosis was qualified because he had not been able to interview him, Dr Furst had conducted that interview and expressed the relevant views in even stronger terms. The defence was established in respect of both charges.
Orders Made
- A special verdict of act proven but not criminally responsible was returned on the charge of murdering Shannon Weller between 23 March 2020 and 29 March 2020 at Gladesville
- A special verdict of act proven but not criminally responsible was returned on the charge of assaulting Allyson Thornton occasioning actual bodily harm on 23 March 2020 at Gladesville
(Note: The judgment text provided does not reproduce any consequential custody or tribunal referral orders made following the verdicts, though such orders would ordinarily follow under the Act.)
Key Takeaways
- A special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is not a full trial; its purpose is to determine whether it can be proved to the criminal standard, on the limited evidence available, that the defendant committed the offence charged.
- Under s 28 of the Act, the defence of mental illness requires the court to be satisfied on the balance of probabilities that the accused, due to a mental health impairment or cognitive impairment, did not know that the act was wrong. This is a different and lower standard than the criminal standard applied to proving the physical elements.
- Knowledge of the "nature and quality" of an act and knowledge of its "wrongfulness" are distinct inquiries. Here, the accused was found to have understood what he was doing physically, yet still qualified for the mental illness defence because his delusional belief system meant he could not appreciate that his conduct was wrong.
- The Supreme Court confirmed that the absence of a direct interview by one expert does not necessarily undermine the availability of the mental illness defence, particularly where a second expert who did conduct such an interview expressed the relevant opinion in stronger terms.
- Where a special verdict of act proven but not criminally responsible is returned, the court proceeds to make orders under s 33 of the Act, which may include detention, conditional release, or referral to the Mental Health Review Tribunal, rather than any form of criminal punishment.
Legislation and Cases Referenced
Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 5, 28, 33, 34, 36, 47, 49, 53, 54, 56, 59, 60-63, 67
- Crimes Act 1900 (NSW), ss 18, 59
Cases:
- R v Tonga [2021] NSWSC 1064