R v Fernando - [2011] NSWSC 1556

Supreme Court

New South Wales

Medium Neutral Citation: R v FERNANDO [2011] NSWSC 1556
Hearing dates: 7 December 2011
Decision date: 15 December 2011
Jurisdiction: Criminal
Before: Hall J
Decision:
In accordance with s.38 of the Mental Health (Forensic Provisions) Act 1990 I find the accused is not guilty of murder by reason of mental illness.
I order that the accused, Sharmin Fernando, be detained pursuant to s.39(1) of the Mental Health (Forensic Provisions) Act 1990, in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine until released by due process of law.
The court recommends that the Mental Health Review Tribunal give consideration to transferring Ms Fernando to a secure forensic hospital as soon as possible.
The Registrar is to notify the Minister for Health and the Mental Health Review Tribunal of the terms of the orders made by the Court. I direct that the reports of Dr Nielssen and Dr Westmore be drawn to the attention of Justice Health.

Catchwords: CRIMINAL LAW - murder - defence of mental illness - trial by Judge alone - expert psychiatric evidence that at the time of the fatal shooting the accused was acting under a schizophrenic delusion arising from long standing psychosis - not guilty by reason of mental illness
Legislation Cited: Mental Health (Forensic Provisions) Act 1990
Criminal Procedure Act 1986
Cases Cited: R v Jennings [2005] NSWSC 789
R v Porter (1936) 55 CLR 182
Category: Principal judgment
Parties: Regina
Fernando
Representation: Crown: K McKay
Accused: J Stratton SC
Solicitor for DPP
Legal Aid Commission of NSW

File Number(s): 10/279024

Judgment

Introduction

On 5 August 2011 Shamin Fernando (the accused) was originally arraigned upon a charge that on the 22 nd of August 2010 at Glebe she murdered Vincent Fernando (the deceased). To that charge she has pleaded not guilty on the ground of mental illness

On 24 October 2011 the Accused made an election pursuant to s32(1) of the Criminal Procedure Act 1986 for the charge against her to be tried by a Judge alone. Pursuant to that section the accused indicated that before her election she had sought and obtained advice. The Director of Public Prosecutions consented to the accused's election.

Accordingly, the trial of the accused proceeded before me on that basis on 7 December 2011.

Background to the fatal incident

On 7 December 2011 the Crown tendered three volumes of material which were admitted into evidence and marked respectively Exhibit A1, A2 and A3. Exhibit A3 contained, amongst other documents, statements of the Captain of the Sydney Pistol Club, the transcript of an electronically recorded interview conducted with the accused on Sunday 22 August 2010, the autopsy report dated 9 March 2011 and other statements and materials arising from police investigations in relation to the fatal incident.

Exhibit A2 and A3 contained clinical notes and medical reports concerning the accused's medical treatment and hospitalisation including over a period of several years before the incident.

The hearing proceeded upon the…

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 Fernando

Details

AGLC: R v Fernando [2011] NSWSC 1556
Case: [2011] NSWSC 1556
Decision Date: 15 December 2011

CaseChat Overview and Summary

The matter of R v Fernando involved a defendant charged with murder. The accused was alleged to have fatally shot a person under circumstances that warranted a murder charge. The case was heard by a judge sitting alone without a jury, as per the defendant's request. The central issue was whether the defendant could be held criminally responsible for the murder, given the submission that at the time of the offence he was suffering from a mental illness that impaired his responsibility.

The court was required to determine if the defence of mental illness was applicable in this case. This involved assessing the expert psychiatric evidence provided, which suggested that the defendant was experiencing a schizophrenic delusion at the time of the incident, a condition stemming from a long-standing psychosis. The defence argued that these mental health issues rendered the defendant incapable of understanding the nature of his actions or that they were wrong. The prosecution, on the other hand, contended that despite the defendant's mental illness, he was still capable of forming the requisite intent to commit murder.

In delivering judgment, the court considered the expert psychiatric evidence and the legal criteria for establishing a defence of mental illness. The court found that the evidence convincingly demonstrated that the defendant was indeed acting under a delusional state at the time of the offence, which negated the ability to form the necessary intent for murder. Consequently, the court accepted the defence and found the defendant not guilty by reason of mental illness. This conclusion was based on the understanding that the defendant's actions, though unlawful, were a product of his mental disorder and not a rational choice.

Orders