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R v Anderson

R v Anderson

Case [2017] NSWDC 148 12 May 2017

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District Court

New South Wales

Medium Neutral Citation: R v Anderson [2017] NSWDC 148
Hearing dates: 9 – 10 May 2017
Date of orders: 12 May 2017
Decision date: 12 May 2017
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
I enter the following special verdicts:-

1. Pursuant to s 38(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), on the charge of wounding Mr Andrew Anderson with the intention of murdering him, I find the accused not guilty by reason of mental illness;

2. Pursuant to s 38(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), on the charge of wounding Mr Andrew Anderson with the intention to cause him grievous bodily harm, I find the accused not guilty by reason of mental illness; and

3. Pursuant to s 38(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), on the charge of wounding Mrs Patricia Anderson with the intention to cause her grievous bodily harm, I find the accused not guilty by reason of mental illness.

Further, I also make the following orders and directions:-

4. In accordance with s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), I order that the accused be detained in a correctional centre or such a place that may be determined from time to time by the Mental Health Review Tribunal until his release by due process of law;

5. I direct that as soon as practicable, the Registrar of the Court notify the Minister for Health of the terms of this order; and

6. I direct that as soon as practicable, the Registrar of the Court notify the Mental Health Review Tribunal of this order and provide the Tribunal with the following documentation:

a. Copy of the reason for the verdicts and orders;

b. Transcript of the trial; and
c. The Exhibits tendered by the Crown and counsel for the accused at the trial.
Catchwords:
CRIMINAL LAW – wounding with intent to murder – wounding with intent to cause grievous bodily harm

DEFENCE – whether accused is criminally responsible for actions – whether the accused was suffering from mental illness at the time of the offences – no dispute that acts of the accused were voluntary

EVIDENCE – no contest as to expert psychiatric evidence – evidence revealed that accused did not know his actions were morally wrong
VERDICT – special verdicts of not guilty by reason of mental illness – effect of finding and declaration of mental illness – accused to be detained until release by due process of law
Legislation Cited: Crimes Act 1900 (NSW) ss 27 and 33(1)(a)
Criminal Procedure Act 1986 (NSW) ss 132 and 133
Evidence Act 1995 (NSW) ss 177
Mental Health (Forensic Provisions) Act 1990 (NSW) ss 37, 38 and 39
Cases Cited: AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8
Azzopardi v R (2001) 205 CLR 50
Fleming v R (1998) 197 CLR 250
Filippou v The Queen (2015) 256 CLR 47; [2015]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Anderson

Details

AGLC: R v Anderson [2017] NSWDC 148
Case: [2017] NSWDC 148
Decision Date: 12 May 2017

CaseChat Overview and Summary

The case before the court involved an accused, Anderson, charged with multiple counts of wounding with intent. The victims included Mr Andrew Anderson and Mrs Patricia Anderson. The court was tasked with determining whether Anderson was criminally responsible for his actions and whether he was suffering from a mental illness at the time of the offences. There was no dispute that the actions were voluntary. The court had to decide if Anderson could be held criminally responsible given his mental state at the time of the offences.

The primary legal issue was whether Anderson was criminally responsible for the acts committed, considering his mental state. The court had to determine if Anderson knew that his actions were morally wrong or if he was suffering from a mental illness that impaired his ability to understand the morality of his actions or to control his actions. The psychiatric evidence presented was uncontroverted and established that Anderson did not know his actions were morally wrong due to his mental illness.

In reaching its decision, the court considered the uncontroverted expert psychiatric evidence that confirmed Anderson's mental illness at the time of the offences. The court found that Anderson did not understand that his actions were morally wrong because of his mental illness. As a result, the court entered special verdicts of not guilty by reason of mental illness for each of the charges. Under the Mental Health (Forensic Provisions) Act 1990 (NSW), the court ordered Anderson to be detained in a correctional centre or another designated place until his release by due process of law.

The court issued orders directing the Registrar to notify the Minister for Health and the Mental Health Review Tribunal of the verdicts and orders. The Registrar was also instructed to provide the Tribunal with a copy of the reasons for the verdicts and orders, a transcript of the trial, and the exhibits tendered by the Crown and counsel for the accused at the trial.

Orders

Orders of the court

I enter the following special verdicts:-

1. Pursuant to s 38(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), on the charge of wounding Mr Andrew Anderson with the intention of murdering him, I find the accused not guilty by reason of mental illness;

2. Pursuant to s 38(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), on the charge of wounding Mr Andrew Anderson with the intention to cause him grievous bodily harm, I find the accused not guilty by reason of mental illness; and

3. Pursuant to s 38(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), on the charge of wounding Mrs Patricia Anderson with the intention to cause her grievous bodily harm, I find the accused not guilty by reason of mental illness.

Further, I also make the following orders and directions:-

4. In accordance with s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), I order that the accused be detained in a correctional centre or such a place that may be determined from time to time by the Mental Health Review Tribunal until his release by due process of law;

5. I direct that as soon as practicable, the Registrar of the Court notify the Minister for Health of the terms of this order; and

6. I direct that as soon as practicable, the Registrar of the Court notify the Mental Health Review Tribunal of this order and provide the Tribunal with the following documentation:

a. Copy of the reason for the verdicts and orders;

b. Transcript of the trial; and

c. The Exhibits tendered by the Crown and counsel for the accused at the trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Anderson [2017] NSWDC 148

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 18 of 18 shown

Insurance Australia Limited t/as NRMA Insurance v Asaner [No 2]
[2016] NSWSC 1078 Para 75

…from a mental illness at the time of the alleged commission of the offence, as well as the accused’s psychological history: see R v Settree (No 2) [2016] NSWSC 1078 at [26] (Campbell J).…
R v Settree (No 2)
[2016] NSWSC 1079 Para 61

…r Andrew Anderson were deliberate acts and the question of the accused’s alleged mental illness is irrelevant at this stage: see R v Settree (No 2) [2016] NSWSC 1079 at [16] – [17] (Campbell J).…
Filippou v The Queen
[2015] HCA 29 Para 4

…hese statutory obligations in accordance with the statements made in both Fleming v R (1998) 197 CLR 250; and Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [6] and [52].…
R v PCB
[2012] NSWSC 482 Para 74

…In R v PCB [2012] NSWSC 482, Johnson J at [46] – [48] summarised the principles applicable to a defence of mental illness in the following terms:-…
R v Rodriguez
[2010] NSWSC 198

…zzi v The Queen (1960) 105 CLR 659 R v Minani (2005) 154 A Crim R 349; [2005] NSWCCA 226 R v PCB [2012] NSWSC 482 R v Rodriguez [2010] NSWSC 198 R v Settree (No 2) [2016] NSWSC 1079 R v Smith (1837) 8 C & P 173 R v Shepherd [2003] NSWCCA 351 Category: Principal judgment Parties: Regina (Crown) Mr David Edward Ander…
R v Pratt
[2009] NSWSC 1108 Para 19

…[47] In R v Pratt [2009] NSWSC 1108 at [19]-[21], RA Hulme J provided the following helpful summary of relevant concepts: ‘[19] In relation to the concept of a 'disease of the mind' which produces such a defect of reason, the law requires that the accused's state of mind must have been one of disease, disorder or di…
R v Klamo
[2008] VSCA 75

…d to accept and act upon expert evidence, but they are not entitled to disregard it capriciously: R v Hall (1988) 36 A Crim R 368 at 370; R v Klamo [2008] VSCA 75; (2008) 18 VR 644 at 655 [44]. A jury (or Judge sitting alone) ought not reject unanimous medical evidence unless there is evidence which can cast doub…
AK v Western Australia
[2008] HCA 8 Para 5

…I also bear in mind the remarks of Heydon J in AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [85], where His Honour stated:-…
Hone v The State of Western Australia
[2007] WASCA 283

…lone) ought not reject unanimous medical evidence unless there is evidence which can cast doubt upon the medical evidence: Hone v Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 at 146-148 [124]-[126]; R v Klamo at 644-645 [44]-[50].’”…
R v Minani
[2005] NSWCCA 226 Para 59

…der the defence of mental illness that was raised by the accused. The defence of mental illness was considered in R v Minani (2005) 154 A Crim R 349; [2005] NSWCCA 226. In that case, Hunt AJA (with whom Spigelman CJ and Howie J agreed) held at [32]:-…
R v Shepherd
[2003] NSWCCA 351 Para 62

…(dermis) and the breaking of the outer layer (epidermis) is not sufficient: R v Smith (1837) 8 C & P 173; which was cited favourably in R v Shepherd [2003] NSWCCA 351 at [31] (Kirby J with whom Meagher JA and Shaw J agreed).…
Azzopardi v the Queen
[2001] HCA 25 Para 15

…The accused did not give evidence in response to the Crown case: see Azzopardi v R (2001) 205 CLR 50. The accused was entitled to give evidence, but was under no obligation to do so. The accused is entitled to say nothing if he so chooses and to make the Crown prove his guilt to the high standard which is required,…
Fleming v The Queen
[1998] HCA 68 Para 4

…I approach these statutory obligations in accordance with the statements made in both Fleming v R (1998) 197 CLR 250; and Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [6] and [52].…
Hawkins v The Queen
[1994] HCA 28

…on which the Crown must prove in such a case is not always an easy one where there is an element of mental illness involved. In Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 (at 510, 512-514, 517), the High Court held that, contrary to what had previously been thought to be the law in this State, evidenc…
Lucas v The Queen
[1970] HCA 14

…llness, I observed in R v Rodriguez at [45]: ‘Although medical evidence is not essential to prove the defence of mental illness ( Lucas v The Queen [1970] HCA 14; [1970] 120 CLR 171 at 174), it is the invariable experience of criminal courts in this State that medical evidence is adduced on this issue. Juries (a…
Mizzi v The Queen
[1960] HCA 77 Para 73

…e defence of mental illness. As I have also stated, it is the accused who bears the onus of proof, on the balance of probabilities: Mizzi v The Queen (1960) 105 CLR 659 at 664 – 665.…
R v Porter
[1933] HCA 1

…e persons, or when he cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing: The King v Porter [1933] HCA 1; (1933) 55 CLR 182 at 189-190.’…
(1843) 8 ER 718
(1843) 8 ER 718

…rensic Provisions) Act 1990 . The defence of mental illness is to be determined in accordance with the M'Naghten rules laid down in R v M'Naghten (1843) 8 ER 718. Those rules provide that every person is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the co…

Legislation cited in this decision · 5

Mental Health (Forensic Provisions) Act 1990 (NSW)
37, 38, 39 4 mentions (from Para 106)
Crimes Act 1900 (ACT)
27, 33(1)(a) 3 mentions (from Para 70)
Criminal Procedure Act 1986 (NSW)
132, 133 3 mentions (from Para 2)
Evidence Act 1995 (Cth)
177 2 mentions (from Para 70)
Mental Health Act 2007 (NSW)
1 mention (from Para 84)

Medium Neutral Citation:	R v Anderson [2017] NSWDC 148
Hearing dates:	9 – 10 May 2017
Date of orders:	12 May 2017
Decision date:	12 May 2017
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	I enter the following special verdicts:- 1. Pursuant to s 38(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), on the charge of wounding Mr Andrew Anderson with the intention of murdering him, I find the accused not guilty by reason of mental illness; 2. Pursuant to s 38(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), on the charge of wounding Mr Andrew Anderson with the intention to cause him grievous bodily harm, I find the accused not guilty by reason of mental illness; and 3. Pursuant to s 38(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), on the charge of wounding Mrs Patricia Anderson with the intention to cause her grievous bodily harm, I find the accused not guilty by reason of mental illness. Further, I also make the following orders and directions:- 4. In accordance with s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), I order that the accused be detained in a correctional centre or such a place that may be determined from time to time by the Mental Health Review Tribunal until his release by due process of law; 5. I direct that as soon as practicable, the Registrar of the Court notify the Minister for Health of the terms of this order; and 6. I direct that as soon as practicable, the Registrar of the Court notify the Mental Health Review Tribunal of this order and provide the Tribunal with the following documentation: a. Copy of the reason for the verdicts and orders; b. Transcript of the trial; and c. The Exhibits tendered by the Crown and counsel for the accused at the trial.
Catchwords:	CRIMINAL LAW – wounding with intent to murder – wounding with intent to cause grievous bodily harm DEFENCE – whether accused is criminally responsible for actions – whether the accused was suffering from mental illness at the time of the offences – no dispute that acts of the accused were voluntary EVIDENCE – no contest as to expert psychiatric evidence – evidence revealed that accused did not know his actions were morally wrong VERDICT – special verdicts of not guilty by reason of mental illness – effect of finding and declaration of mental illness – accused to be detained until release by due process of law
Legislation Cited:	Crimes Act 1900 (NSW) ss 27 and 33(1)(a) Criminal Procedure Act 1986 (NSW) ss 132 and 133 Evidence Act 1995 (NSW) ss 177 Mental Health (Forensic Provisions) Act 1990 (NSW) ss 37, 38 and 39
Cases Cited:	AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 Azzopardi v R (2001) 205 CLR 50 Fleming v R (1998) 197 CLR 250 Filippou v The Queen (2015) 256 CLR 47; [2015]…