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R v Brewer (No. 2)

R v Brewer (No. 2)

Case [2015] NSWSC 1547 23 October 2015

Criminal Liability

Mental Illness Defence

Duty of Counsel

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Brewer (No. 2) [2015] NSWSC 1547
Hearing dates: 6,7,8,9,13,15 and 19 October 2015
Date of orders: 23 October 2015
Decision date: 23 October 2015
Jurisdiction: Common Law
Before: Bellew J
Decision:
1. I find the accused not guilty of the murder of Visakesvaran Velupillai on the grounds of mental illness.

2. I order that the accused be detained, pursuant to s. 39 of the Mental Health (Forensic Provisions) Act 1990, in an appropriate correctional centre, or in such facility as the Mental Health Review Tribunal may determine, until he is released by due process of law.
3. I direct the Registrar to notify the Minister for Health, and the Mental Health Review Tribunal, of these orders.
Catchwords:
CRIMINAL LAW – Offences – Murder – Where accused charged with murder – Where psychiatrists qualified on behalf of the Crown and the accused each expressed the view that a defence of mental illness was available – Accused found not guilty on the grounds of mental illness
PRACTICE AND PROCEDURE – Legal practitioners – Duties and responsibilities of counsel – Where medical evidence established the availability of a defence of mental illness – Where the accused asserted in evidence that he was not mentally ill – Where the accused had instructed his Counsel not to pursue a defence of mental illness – Where defence was raised on the evidence – Responsibility of the Court to consider the issue
Legislation Cited: Criminal Procedure Act 1986
Mental Health (Forensic Provisions) Act 1990
Cases Cited: Dezfouli v R [2007] NSWCCA 86
Flemming v R [1998] HCA 68; (1998) 197 CLR 250
Markou v R [2012] NSWCCA 64; (2012) 221 A Crim R 78
R v Afele [2014] NSWSC 366
R v Foy (1922) 39 WN (NSW) 20
R v McNaughten (1843) 8 ER 718;
R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490
R v Porter [1933] HCA 1; (1933) 55 CLR 182
R v S [1979] 2 NSWLR 1
R v Stables [2014] NSWSC 697
R v Winner [1995] 79 A Crim R 528
W v R [2014] NSWCCA 110
Category: Principal judgment
Parties: Crown - Regina
Adam James Brewer - Accused
Representation:
Counsel:
Crown – Mr M Barr
Accused – Mr P Skinner
Solicitors:
Crown – Director of Public Prosecutions (NSW)
Accused - Longton Legal

File Number(s): 2014/77670
Publication restriction: Nil

Judgment

Introduction

Adam James Brewer has pleaded not guilty to a charge that on 13 March 2014, at Pendle Hill in the State of New South Wales, he murdered Visakesvaran Velupillai (“the deceased”).
The Crown has previously consented to the trial proceeding before a Judge alone, without a jury. The statutory framework for a trial before a Judge alone is provided by s. 133 of the Criminal Procedure Act 1986 (“the CPA”) which is in the following terms:

133 Verdict of single Judge
(1) A Judge who tries criminal proceedings without a jury may make any…

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 Brewer (No. 2)

Details

AGLC: R v Brewer (No. 2) [2015] NSWSC 1547
Case: [2015] NSWSC 1547
Decision Date: 23 October 2015

CaseChat Overview and Summary

In the case of R v Brewer (No. 2), the defendant stood accused of murder. The dispute centred on whether the accused was guilty of murder, and if so, whether he was legally accountable for his actions due to a mental illness. The case was heard in the Supreme Court of Queensland. The accused had instructed his counsel not to pursue a defence of mental illness, despite medical evidence suggesting that such a defence was available. The Court was required to consider the issue of the accused's mental state and whether it impacted his criminal responsibility.

The court needed to determine if the accused was mentally ill at the time of the offence and, if so, whether this illness absolved him of criminal responsibility. Additionally, the court had to consider the responsibility of counsel in the context of the accused's instructions. The central legal issue was whether the court could proceed to consider the defence of mental illness despite the accused's instruction to the contrary, and if so, whether this would lead to an acquittal on the grounds of mental illness.

In its reasoning, the court held that the availability of a defence of mental illness could not be ignored, even if the accused had instructed his counsel not to pursue it. The court emphasised the importance of ensuring that the accused's rights were protected and that all potential defences were considered. The court found that the accused was not guilty of murder on the grounds of mental illness, acknowledging that despite the accused's instruction, the defence was valid based on the medical evidence presented. The court's decision underscored the duty of the court to consider all available evidence and defences, irrespective of the accused's personal wishes.

The court ordered that the accused be found not guilty of murder due to mental illness. The ruling highlighted the critical role of medical evidence in criminal cases where mental illness is a defence and underscored the court's obligation to consider such evidence thoroughly. The court's decision ensured that the accused's rights were upheld and that all legal defences were appropriately considered.

Orders