R v Delaney (No 2)

[2020] NSWDC 610

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Delaney (No 2) [2020] NSWDC 610

Hearing dates:

9 October 2020

Decision date:

09 October 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Special verdict - not guilty by reason of mental illness.

Catchwords:

CRIME — Wound with intent — Defences — Mental illness

CRIMINAL LAW - Trial by judge alone - wound with intent to cause grievous bodily harm- defendant alleged to have stabbed his father multiple times - Special defence of not guilty by reason of mental illness - Schizophrenia - Psychiatrists for both parties agreed that defence available - Verdict of not guilty by reason of mental illness

MENTAL HEALTH — Criminal proceedings — Defence of mental illness — Special verdict of not guilty by reason of mental illness

Legislation Cited:

Criminal Procedure Act 1986

Mental Health (Forensic Provisions) Act 1990

Cases Cited:

Fang v R [2018] NSWCCA 210; (2018) 97 NSWLR 876

Hawkins v R (1994) 179 CLR 500

M'Naghten's Case, Re (1843) 8 ER 718

R v Delaney [2020] NSWDC 609

R v Issa, NSWSC, unreported 25/10/1995

R v Kirkman [2019] NSWSC 1826

R vMinani (2005) 63 NSWLR 490; [2005] NSWCCA 226

Ryan v R (1967) 121 CLR 205

Sodeman v The Queen (1936) 55 CLR 192

Stapleton v The Queen (1952) 86 CLR 358

The Queenv Lucas (1970) 120 CLR 171

The Queen vPorter (1933) 55 CLR 182

Category:

Principal judgment

Parties:

David Delaney (the accused)
Director of Public Prosecutions

Representation:

Counsel:
Mr S Fraser, Public Defender (for the accused)
Mr R Taylor, Solicitor Advocate (for Director of Public Prosecutions)

Solicitors:
Legal Aid NSW (for the accused)

File Number(s):

2019/00380537

Judgment

Introduction

1. On 30 November 2019, while at a unit at Daisy St Fairy Meadow, both David Delaney and his father, John Delaney suffered stab wounds. David Delaney was arrested and charged with wounding with intent to cause grievous bodily harm to his father: s 33(1)(a) Crimes Act 1900. David Delaney has been in custody since that date, first at St George hospital then at the Long Bay Prison Hospital, F Ward.

2. Today, David Delaney was arraigned and said he was not guilty. Today, sitting as a judge alone, I heard evidence in relation to that allegation. There is no real issue between either the prosecution and defence – both take the view, supported by expert opinion of two forensic psychiatrists, that David Delaney is not guilty of the charge; not because he did not do what was alleged and intend to do it but because of his severe long standing treatment resistant mental illness.

3. I must reach my own independent conclusion but I have no hesitation in finding David Delaney is not guilty of the charge that he on 30 November 2019 wounded his father, John Delaney, with intent to cause grievous him bodily harm. These are my reasons for reaching that special verdict.

Procedural matters

4. David Delaney was committed to the District Court at Wollongong for trial in May 2020. On 15 June 2020 an Indictment was filed but before David Delaney could be arraigned a question about his fitness to be tried was raised. On 9 October 2020 I was told that David Delaney’s fitness to be tried was no longer an issue. At the time I did not believe a fitness hearing was required. Having now read all the material, for abundant caution I revisited that decision this morning. After a short hearing I made a formal determination that David Delaney was fit to be tried: See separate judgment R v Delaney [2020] NSWDC 609.

5. David Delaney was then arraigned and said he was not guilty. The basis for that plea was an assertion that he was mentally ill and did not have the capacity to reason, such as to know what he was doing was wrong.

6. David Delaney was represented by Mr Fraser, Public Defender. Mr Taylor, Solicitor Advocate, appeared for the Director of Public Prosecutions.

7. A defence request for trial by judge alone had been agreed to by the Director of Public Prosecutions: s 132 Criminal Procedure Act 1986. It was agreed that the trial proceed immediately. No witnesses were required for examination or cross-examination. I was told John Delaney preferred not to be present in court but was being kept fully informed of what was occurring by staff of the Director of Public Prosecutions.

8. There was no dispute on any factual, forensic or legal matter. There was no dispute the formal elements of the offence were established beyond reasonable doubt.

Undisputed facts

9. On 30 November 2019, John Delaney went to his son David’s unit in Fairy Meadow to deliver him some groceries. As John Delaney stood at the door, to hand the groceries over, his son said “thanks Dad.” David Delaney then stabbed his father repeatedly with a knife. John Delaney screamed, “David it’s me, your Dad.” He punched at his son and eventually was able to break free. John Delaney was able to run downstairs. His wife, who had been waiting in their car, drove him to Wollongong Hospital. At the hospital he was taken to an operating theatre where his wounds and abrasions were treated by washing and suturing. He had over 20 lacerations on his chest, shoulders, neck, mandible, cheek, ear, hand and upper arm.

10. After his father ran off David Delaney stabbed himself in the chest. He went to a neighbour’s unit. She called the ambulance and police. He was taken to hospital in a serious condition. At first the police thought David Delaney had been the victim of the assault but after the true situation came to light David Delaney was arrested at the hospital after he came out of a coma.

The defence of mental illness

11. Although not strictly a defence the law will excuse a defendant who commits a crime if at the time they were so mentally ill, that they could not be held responsible according to law. Section 38 Mental Health (Forensic Provisions) Act 1990 provides;

If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.

12. A judge sitting alone has the same powers as a jury.

13. The onus of proving this fact is on the defendant who must establish on the balance of probabilities that they were mentally ill at the time of the doing of the act constituting the alleged offence. The mental state of the defendant before or after that time is only relevant in so far as it assists the determination of what his mental state was likely to have been at that time.

14. Section 38 operates to give effect to the common law principles concerning the defence of mental illness. That ‘defence’ was first set out in in M'Naghten's Case, Re (1843) 8 ER 718. It was explained and refined in The Queen v Porter (1933) 55 CLR 182, Sodeman v The Queen (1936) 55 CLR 192 and Stapleton v The Queen (1952) 86 CLR 358.

“To establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

“Wrong” in the second limb of the M’Naghten rule means “wrong” according to “ordinary standards adopted by reasonable men”: Stapleton v The Queen at 375

15. The defendant’s state of mind must have come about from a disease, disorder or disturbance arising from some condition, which may be temporary, or of long standing, curable or incurable. Such a condition can be caused by some physical deterioration of the brain cells, but not necessarily. It may arise from some mental malfunction with no apparent organic basis. The cause of the disease may be unknown. In all cases it must result in the function of the person’s reason or understanding being thrown into a state of derangement or disorder.

16. A distinction is drawn between a defect of reason from an underlying mental illness as distinct from the reaction of a healthy mind to some extraordinary external factor, which is transient, that is, passing and not prone to recur.

17. When considering whether a defendant did, or did not, know the act to be wrong; it must be asked could the defendant through a disease, disorder or disturbance of the mind think rationally of the reasons, which to ordinary people would make that act right or wrong? If the defendant could not sense or appreciate or understand that his or her act was wrong the defence will be established.

18. Even if the defendant knew in some sense their act was wrong, if through a disordered condition of the mind the defendant could not reason about the matter with a moderate degree of sense and composure then the defence will also be established.

19. When considering the defendant’s capacity to reason or know what he or she was doing or know the physical nature or quality of the act or know that the act was wrong, the ordinary standards of reasonable people in our community is applied.

20. While medical evidence is not strictly required to prove the defence it is the usual and preferred option to call expert evidence from a psychiatrist or a psychologist or both: The Queenv Lucas (1970) 120 CLR 171.

Expert Psychiatric Opinion

21. Dr Richard Furst, a Forensic Psychologist, examined David Delaney and reviewed his medical and psychiatric history. In his expert opinion David Delaney “suffers from a relatively severe, chronic and treatment resistant schizophrenic illness…characterised by recurrent episodes of paranoid delusions, auditory hallucinations; including multiple commanding voices, mood disturbance and bizarre behaviour.”

22. In Dr Furst’s opinion at the time of the stabbing David Delaney was suffering from acute and overwhelming psychotic symptoms and was completely unable to appreciate the wrongness of his actions according to the standards of ordinary people. He felt he had no choice but to listen to the voices in his head and was accordingly devoid of the capacity for logical or moral reasoning. He was essentially deranged.

23. Dr Kerri Eagle shares that opinion. In her view while David Delaney understood the physical nature of his actions in stabbing his father his capacity to interpret reality and challenge his experiences, for instance the voices, was impaired by his illness. His actions appeared to be in response to auditory hallucinations and persecutory delusions incorporating his father and as such arose from his severe mental illness.

Determination

24. In R v Kirkman [2019] NSWSC 1826 Justice Button set out, with admirable succinctness, the issues required to be determined in matters such as this. With unfeigned respect I have adopted His Honour’s approach as a model for this judgment.

25. Here the undisputed evidence well establishes, on balance, that:

1. David Delaney’s acts caused grievous bodily harm.

2. There is doubt that those actions were willed and deliberate movements of his muscles. Although there is, as the defence note, some authority for the proposition that if not established by objective facts failure to establish specific intent can lead to an acquittal, I am not legally required to go further with regard to any proven intention: R v Issa, NSWSC, unreported 25/10/1995, per Sperling J; Ryan v R (1967) 121 CLR 205; Hawkins v R (1994) 179 CLR 500; and R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226.

3. The objective facts specifically the number of blows struck with the knife, do however establish that he specifically intended to inflict grievous bodily harm.

4. He has had a disease of the mind for many years, and that he was suffering from it very acutely on 30 November 2019.

5. He was a drug user but despite any drug use his underlying disease of the mind was present and active this day. In my findings I disregard the effect of any illicit substances he may have taken: Fang v R [2018] NSWCCA 210; (2018) 97 NSWLR 876.

6. His disease of the mind led to a defect of reason. That is not merely established by the opinions of the two experts, both of which I accept. It is also shown by the evidence of what he did to his father that day and his father’s perceptions of his son’s change in demeanour when he met him at the front of the unit to collect the food being delivered. His father said “Suddenly I saw his face change and I can only describe the look as anger…I thought to myself during the flurried attack… he wants to kill me.”

7. He did appreciate the nature and quality of his act. This part of the defence has not been established. On a superficial level, he knew the legal wrongfulness of his actions as he attempted to blame his father for the self-inflicted stab wound.

8. He had no appreciation whatsoever of the moral wrongfulness of his actions. This final necessary leg of the mental illness defence is amply established.

Conclusion

26. In short: I am satisfied beyond reasonable doubt that David Delaney voluntarily committed an act that wounded his father and he did so with the intent to cause his father grievous bodily harm. I am also satisfied on the balance of probabilities that, at the time he did so, he was suffering from a disease of the mind that led to a defect of reason; that led in turn to him failing to appreciate the immense moral wrongfulness of his actions. For those reasons, I return a special verdict of not guilty by reason of mental illness.

Meaning of the verdict

27. I will explain the meaning and effect of my verdict. In doing so, I, again, adopt the summary given by Justice Button in R v Kirkman at [45] – [51]. A special verdict of not guilty by reason of mental illness verdict is not a complete acquittal.

28. First, it is true that the defendant will not be heldcriminally responsible for his actions, as a result of his mental state on the evening of 30 November 2019. But there is no doubt that his physical acts directly caused the injuries to his father.

29. Secondly, the fact that I have entered a verdict of not guilty of a special kind does not reduce the tragedy of what occurred and its impact on all the Delaney family.

30. Thirdly, while s 39(1) Mental Health (Forensic Provisions) Act 1990 allows for the immediate release, in limited circumstances, of a person found not guilty on the ground of mental illness in this case, that is not possible.

31. Fourthly, effect of my verdict, and the orders that I make today is that the defendant will be committed to the long term care and control of the Mental Health Review Tribunal. Pursuant to s 43(a) of that Act, the Tribunal must not release him into the community unless and until it is satisfied that the defendant will not seriously endanger any person, including himself.

32. Fifthly, while the evidence now before me indicates that David Delaney has responded well to treatment and that significant progress has been made, much more will be needed before he can resume life in the community. Absent a clear treatment plan and stable accommodation he still poses a danger to the community. Whether and when and under what conditions he is to be released are decisions that will and must be made by the Mental Health Review Tribunal.

Orders

33. I make the following orders:

1. David Delaney is to continue to be detained at Long Bay Prison Hospital or at such place as may be determined from time to time by the Mental Health Review Tribunal.

2. The Registrar must notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by me.

3. The Registrar must notify the Mental Health Review Tribunal and Justice Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by me, and provide those bodies with the following documentation:

1. A copy of these reasons for verdict and my orders;

2. A copy of the exhibits tendered at trial.

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Amendments

15 October 2020 - Cases cited edit only

21 October 2020 - Spelling error only

Decision last updated: 21 October 2020