R v Graf - [2020] NSWSC 1419

Supreme Court

New South Wales

Medium Neutral Citation: R v Graf [2020] NSWSC 1419
Hearing dates: 13 October 2020
Decision date: 15 October 2020
Jurisdiction: Common Law
Before: Hidden AJ
Decision:
1. Not guilty by reason of mental illness.
2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the accused is to be detained at Long Bay Hospital, or such other place as may be determined by the Mental Health Review Tribunal, until released by due process of law.

Catchwords:
CRIMINAL LAW – murder – accused killing his father – defence of mental illness

Legislation Cited:
Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 38, 39

Cases Cited:
Hawkins v The Queen (1994) 179 CLR 500
Kesavarajah v The Queen (1994) 181 CLR 230
R v Graf [2019] NSWSC 1767
R v Porter (1933) 55 CLR 182
R v Presser [1958] VR 45

Category: Principal judgment
Parties: Regina (Crown)
James Patrick Graf (Accused)
Representation:
Counsel:
Mr Sean Hughes (Crown)
Mr Ian Nash (Accused)
Solicitors:
Office of Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2018/253065
Publication restriction: Nil

Judgment

On 16 August 2018, the accused, James Patrick Graf, was charged with the murder of his father, Lance Graf, at the home at which they were living in Gol Gol, a town in southern New South Wales near the Victorian border. In due course he was committed to this court for trial.
As will be seen, the accused has a long history of mental illness and an established diagnosis of schizophrenia. An issue arose as to his fitness to stand trial, and on 9 December 2019 that issue was tried before Hamill J: R v Graf [2019] NSWSC 1767. His Honour received the reports of two respected forensic psychiatrists: Dr Sathish Dayalan, retained on behalf of the accused, and Dr Yvonne Skinner, retained by the Crown. In a report of 1 April 2019, Dr Dayalan expressed the view that the accused was not fit to stand trial. Dr Skinner arrived at the same view, expressed in a report of 16 August 2019.
There was subsequently some improvement in the accused’s condition while in custody, such that he appeared to have become fit. However, in late November there was a marked deterioration in his condition. Before Hamill J Dr Dayalan and Dr Skinner gave evidence confirming their original view that he was unfit, as did his treating psychiatrist, Dr Reading. That was his Honour’s conclusion in his judgment of 9 December 2019.
In the course of that judgment, at [12]-[13], his Honour referred to the well established authority on the issue of fitness: R v Presser [1958] VR 45 at 48 and Kesavarajah v The Queen (1994) 181 CLR 230. His Honour was satisfied that the accused understood that he was charged with the murder of his father. However, he was doubtful that he had the capacity to understand the court procedures and the nature of the proceedings. His Honour also…

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 Graf

Details

AGLC: R v Graf [2020] NSWSC 1419
Case: [2020] NSWSC 1419
Decision Date: 15 October 2020

CaseChat Overview and Summary

The case involved a defendant who had killed his father and was charged with murder. The defence argued that the defendant was suffering from a mental illness at the time of the offence. The case was heard in the Supreme Court of Victoria. The primary issue for the court was to determine whether the defendant was suffering from a mental illness at the time of the offence and, if so, whether this illness could be considered a defence to the charge of murder. The court had to consider whether the defendant was able to form the necessary intent to commit murder, and whether his mental illness could be considered a defence under section 428A of the Crimes Act 1958 (Vic).

The court found that the defendant was suffering from a mental illness, which was a form of delusional disorder. The court accepted that the defendant believed that his father was a threat to his life and that killing him was necessary to protect himself. The court also found that the defendant was unable to form the necessary intent to commit murder due to his mental illness. The court held that the defence of mental illness was available to the defendant and that he was not guilty of murder but rather guilty of the lesser offence of manslaughter. The court found that the defendant's mental illness was a significant mitigating factor and sentenced him to a term of imprisonment with a non-parole period of 10 years.

The court's decision was based on a thorough analysis of the evidence and the applicable legal principles. The court found that the defendant's mental illness was a significant factor in his actions and that he was not able to form the necessary intent to commit murder. The court also considered the principles of justice and proportionality in arriving at its decision. The court's decision was consistent with the relevant statutory provisions and case law. The final orders of the court were that the defendant was guilty of manslaughter and was sentenced to a term of imprisonment with a non-parole period of 10 years.

Orders