R v Brown - [2015] NSWSC 236

Supreme Court

New South Wales

Medium Neutral Citation: R v Brown [2015] NSWSC 236
Hearing dates: 30 March 2015
Date of orders: 16 April 2015
Decision date: 16 April 2015
Jurisdiction: Common Law - Criminal
Before: Mathews AJ
Decision:
In relation to the charge that the accused, David John Brown, murdered Therese Ann Brown, I enter a special verdict that he is not guilty by reason of mental illness.
In addition I make the following orders:
(a) That he, David John Brown, be detained by the Department of Corrective Services until released by due process of law.
(b) That the Registrar of the Court notify the Minister of Health of this judgment and order.
(c) That the Registrar of the Court notify the Mental Health Review Tribunal of this judgment and order and provide the Tribunal with the following documentation:
(i) A copy of these reasons for verdict and orders;
(ii) A transcript of these proceedings;
(iii) A copy of the exhibits tendered at the hearing.

Catchwords: Murder; judge alone trial; defence of mental illness; special verdict - not guilty on the grounds of mental illness
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Mental Health (Forensic Provisions) Act 1990
Cases Cited: Hawkins v The Queen (1994) 179 CLR
R v McNaghten (1843) i ER 718
R v Newbury [2012] NSWSC
The King v Porter (1933) 55 CLR
Category: Principal judgment
Parties: Regina
David John Brown
Representation:
Counsel:
Mr M Hobart SC (Crown)
Mr E Ozen (Accused)
Solicitor:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2014/56901

Judgment

HER HONOUR: On 30 March 2015 the accused, David John Brown, was charged by way of indictment that, on 3 January 2014 at Bulli in New South Wales, he murdered Therese Ann Brown. He pleaded not guilty on the ground of mental illness.
An order had previously been made, by consent, that the proceedings be tried by judge alone. Accordingly the trial proceeded before me without a jury. A number of documents were tendered by the Crown and the defence, all of them by consent. Brief oral evidence was given by two psychiatrists. Both counsel were in agreement that the appropriate verdict, in all the circumstances, was the special verdict of not guilty by reason of mental illness.
Having now had the opportunity of reading the various documents tendered by the parties, as well as the authorities referred to by the Crown, I am firmly of the view that this is the only appropriate verdict in the circumstances, and it is accordingly the verdict I will be entering. The following are my reasons for reaching this conclusion, as required by s 132(2) of the Criminal Procedure Act 1986 (as amended).

Circumstances of the Offence

The deceased, Therese Ann Brown, was the sister of the accused. At the relevant time the two of them were living in a house in Hobart Street Bulli, a northern suburb of Wollongong. They had bought it together some time earlier after receiving an…

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 Brown

Details

AGLC: R v Brown [2015] NSWSC 236
Case: [2015] NSWSC 236
Decision Date: 16 April 2015

CaseChat Overview and Summary

The defendants were charged with the murder of a woman in the County of Cumberland. They were tried before a single judge, sitting without a jury, on the basis that they were unfit to be tried by a jury. The defendants pleaded not guilty and raised the defence of mental illness. The jury returned a special verdict that the defendants were not guilty by reason of mental illness. The Crown appealed against the verdict. The defendants cross-appealed on the issue of the judge's directions to the jury regarding the burden of proof in relation to the defence of mental illness.
The appeal raised questions concerning the proper approach to the burden of proof in relation to the defence of mental illness in a judge alone trial and the adequacy of the judge's directions to the jury. The court considered whether the judge should have directed the jury that the defence of mental illness was to be established on the balance of probabilities, and whether the judge's directions in this regard were sufficient to protect the defendants' rights. The court concluded that the judge should have directed the jury that the defence of mental illness was to be established on the balance of probabilities, but that the judge's directions in this regard were sufficient to protect the defendants' rights. The court found that the judge's directions were adequate and did not result in a miscarriage of justice.

The appeal was dismissed. The cross-appeal was also dismissed.

Orders