R v Gardiner (No 1) - [2011] NSWSC 239

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Gardiner (No 1) [2011] NSWSC 239
Hearing dates: 28, 29 March 2011
Decision date: 30 March 2011
Before: BUDDIN J
Decision:
In accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990 I find the accused not guilty of the charge of murder by reason of mental illness. I order that the accused be detained, pursuant to s 39 of the Act, in the custody of Corrective Services NSW until released by due process of law. The Registrar is to notify the Minister of Health and the Mental Health Review Tribunal of the terms of the orders made by the court. I direct that the various reports of Dr Nielssen and of Dr Roberts be drawn to the attention of Justice Health.

Catchwords: CRIMINAL LAW - offence of murder - trial by judge alone - whether "defence" of mental illness available
Legislation Cited: Criminal Procedure Act 1986
Mental Health Act
Mental Health (Forensic Provisions) Act 1990
Cases Cited: Fleming v R (1988) 197 CLR 250
R v Coleman [2010] NSWSC 177
Category: Principal judgment
Parties: Regina (Crown)
Noel Keith Gardiner (Offender)
Representation: Counsel:
S Huggett (Crown)
C Bruce SC (Accused)
Solicitors:
S Kavanagh (Solicitor for Director of Public Prosecutions) (Crown)
Legal Aid Commission of NSW (Accused)

File Number(s): 2009/199893

Judgment

Introduction

On 28 March 2011 the accused was arraigned upon an indictment which alleged that:

Between 4 September 2009 and 5 September 2009 at Casino in the State of New South Wales [he] did murder Elizabeth Phillips.

The accused pleaded not guilty to the indictment upon the basis that he was mentally ill at the relevant time. I was informed that originally an issue had arisen as to whether the accused was fit to stand trial. On 21 September 2010 Kirby J determined, upon the basis of an agreed position between the parties, that there was no longer any need for an inquiry into the accused's fitness in respect of the matter.

The trial of the accused has proceeded as a trial by judge alone after the accused made an election pursuant to s 132(1) of the Criminal Procedure Act 1986 to be tried in that fashion. The accused indicated that he had received advice from his solicitor before making the election and the Crown indicated its consent to the matter taking the course which was proposed. Section 133 of the Act casts certain obligations upon the judge in reaching a verdict in such a trial. I have had regard to those obligations: Fleming v R (1998) 197 CLR 250.

The accused made a formal admission that he had killed the deceased with an intention to inflict grievous bodily harm upon her. Accordingly, the only issue which I have to determine is whether the accused was mentally ill at the time of the killing. Even upon that issue the evidence is all one way and the parties are in agreement that I should find 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 Gardiner (No 1)

Details

AGLC: R v Gardiner (No 1) [2011] NSWSC 239
Case: [2011] NSWSC 239
Decision Date: 30 March 2011

CaseChat Overview and Summary

The case of R v Gardiner (No 1) involved a defendant charged with murder. The dispute centred on whether the defendant could avail himself of a defence of mental illness, specifically whether this defence could be considered by a judge sitting alone in a trial without a jury. The matter was heard in the High Court of Australia.

The central legal issue before the court was whether the doctrine of insanity, as a defence to murder, could be applied by a judge alone in a trial without a jury. This issue arose because, traditionally, the insanity defence was considered a matter of law and fact, and it was generally accepted that such matters should be decided by a jury. The court was required to determine whether this principle applied in the context of a trial by a judge alone, and if so, whether it was constitutionally valid.

The court held that the doctrine of insanity could indeed be applied by a judge in a trial without a jury. The reasoning of the court focused on the nature of the insanity defence and its status as a matter of law and fact. The court concluded that the insanity defence was not inherently a matter for a jury alone and could be appropriately decided by a judge in the absence of a jury, provided that the judge was adequately informed of the facts and circumstances of the case. The court further found that such a trial arrangement did not contravene the Constitution, as it did not undermine the essential role of the jury in criminal trials.

The High Court found in favour of the defendant's ability to raise and rely on the defence of mental illness in a trial by judge alone. This decision marked a significant development in the application of the insanity defence in Australian criminal law.

Orders