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Supreme Court 7 August 2023

R v Huynh

[2023] NSWSC 920

HomicideDomestic & family violence

Citation: R v Huynh [2023] NSWSC 920
Court: Supreme Court of New South Wales
Date: 7 August 2023
Judge: Campbell J

Background

The accused, a woman then aged 37, was charged with the murder of her husband in Bankstown on 28 March 2021. She had been in a de facto relationship with the deceased since approximately 2004, and the couple had two sons together. The accused also had a daughter from a prior relationship.

The agreed facts established that the deceased had subjected the accused, her daughter, and her elder son to sustained verbal and physical violence over many years. Specific incidents, some of which were reported to police, included serious physical assaults on the accused and threats against her children.

The accused entered a plea of not guilty. Both the prosecution and defence agreed that the matter should proceed under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFPA), on the basis that the proposed evidence established the mental health impairment defence. The sole remaining question was whether the Court itself was satisfied, on the balance of probabilities, that the defence was made out.

  • Whether the proposed evidence, including two expert psychiatric reports and an agreed statement of facts, satisfied the Court on the balance of probabilities that the mental health impairment defence under s 28 MHCIFPA was established.
  • Specifically, whether the accused, at the time of the stabbing, did not know that her act was morally wrong (the second limb of the s 28 defence), by reason of a mental health impairment.
  • Whether the Court should enter a special verdict of not criminally responsible by reason of mental health impairment, and what consequential orders should follow.

Decision

Campbell J confirmed the general legal framework under Part 3 of the MHCIFPA. The defence requires proof, on the balance of probabilities, that the accused had a mental health impairment that caused her either not to know the nature and quality of her act, or not to know that her act was wrong in a moral sense. Only the second limb was relevant here: it was not disputed that the accused understood the physical nature of the stabbing.

The Court received reports from two forensic psychiatrists, Dr Olav Nielssen and Dr Adam Martin, both of whom diagnosed the accused with Major Depressive Disorder and Post-Traumatic Stress Disorder. Campbell J noted there was no real difference between their diagnoses and that both experts provided like reasons clearly leading to the same conclusion. Applying the principle from R v Jenkins (1963), the Court found that concurrent expert opinion of this character, in the absence of contradictory evidence or illogicality, carried strong probative force and ought not be rejected.

His Honour was satisfied on the balance of probabilities that the accused suffered a mental health impairment within the meaning of s 4 MHCIFPA, encompassing both an anxiety disorder (PTSD) and an affective disorder (Major Depression), and that this impairment caused her not to know that her act of stabbing the deceased was morally wrong at the time it occurred. The Court accordingly found the s 28 defence established. His Honour also noted, carefully, that the presence of domestic violence did not of itself justify murder, and that no issue of self-defence or extreme provocation had arisen in the proceedings.

The Court entered a special verdict pursuant to s 30 MHCIFPA, finding that the act of fatally stabbing the deceased was proven beyond reasonable doubt, but that the accused was not criminally responsible. Campbell J explained the supervisory role the Mental Health Review Tribunal would assume going forward, including its powers to order detention, treatment, or conditional release, as well as the rights of the deceased's family to register on the Victims Register under s 156 MHCIFPA.

Orders Made

  • A special verdict was entered: the act of fatally stabbing the deceased is proven, but the accused is not criminally responsible by reason of mental health impairment.
  • The jury summoned for the trial was dispensed with.
  • The accused was referred to the Mental Health Review Tribunal under s 34 MHCIFPA.
  • The accused was ordered to be detained at such place and in such manner as the Mental Health Review Tribunal determines, until released by due process of law (s 33(1)(b) MHCIFPA).
  • The Registrar was directed to notify the Minister for Health and the Mental Health Review Tribunal of the orders, and to provide the Tribunal with the Court's reasons and the exhibits.

Key Takeaways

  • Under s 31 MHCIFPA, where both parties agree that the proposed evidence establishes the mental health impairment defence, the Court (not a jury) must still independently assess that evidence and be satisfied on the balance of probabilities that the defence is made out before entering a special verdict.
  • A special verdict of "not criminally responsible" does not result in acquittal; the act itself is found proven beyond reasonable doubt, but criminal responsibility is negated solely by reason of the established mental health impairment.
  • Where two forensic psychiatrists reach the same diagnosis and provide convergent reasoning, the Supreme Court confirmed that such concurrent expert opinion carries strong probative force and should not be rejected in the absence of contradictory evidence or demonstrated illogicality (following R v Jenkins and R v Rodrigues).
  • Major Depressive Disorder and Post-Traumatic Stress Disorder each fall within the definition of "mental health impairment" in s 4 MHCIFPA, as an affective disorder and an anxiety disorder respectively.
  • Following a special verdict, the accused becomes a "forensic patient" subject to the Mental Health Review Tribunal's supervision, and family members of the deceased may register on the Victims Register under s 156 MHCIFPA to receive notifications and have their views considered in Tribunal proceedings.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 30, 31, 33, 34, 85, 156, 157
- Evidence Act 1995 (NSW), s 80

Cases
- R v Jenkins (1963) 64 SR (NSW) 20
- R v Rodrigues [2010] NSWSC 198
- R v Holmes [2021] NSWSC 1325
- R v Sands [2021] NSWSC 1325
- R v Lambros [2023] NSWSC 462
- R v Fleming (Special Verdict) [2023] NSWSC 561
- Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28
- Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8