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R v Kemball

R v Kemball

Case [2020] NSWSC 1559 4 November 2020

Criminal Liability

Mental Illness Defence

Verdict of Not Guilty by Reason of Mental Illness

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Kemball [2020] NSWSC 1559
Hearing dates: 2 November 2020
Date of orders: 4 November 2020
Decision date: 04 November 2020
Jurisdiction: Common Law
Before: Johnson J
Decision:
1 In accordance with s.38 Mental Health (Forensic Provisions) Act 1990, the Accused, Peter John Kemball, is found not guilty of the charge of murder on the grounds of mental illness.
2 In accordance with s.39(1) Mental Health (Forensic Provisions) Act 1990, an order is made that Peter John Kemball be detained in a correctional facility or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law.
3 In addition:
(a) the Registrar is to notify the Minister for Health, as soon as practicable, of the making of these orders;
(b) the Registrar is to notify the Mental Health Review Tribunal, as soon as practicable, of the making of these orders and is to provide to that Tribunal the following documentation:
(1)    a copy of these reasons for verdict and orders;
(2)   the transcript of the trial;
(3)   copies of exhibits from the trial including the reports of Professor Greenberg and Dr Nielssen;
(4)   copies of the victim impact statements of Adam Douglas and Sean Douglas.
(c) the Registrar is directed to notify Justice Health, as soon as practicable, of the verdict and orders in this matter and provide to Justice Health copies of the following documents:
(1)   a copy of these reasons for verdict and orders;
(2)   copies of the reports of Professor Greenberg and Dr Nielssen.

Catchwords:
CRIMINAL LAW - Judge-alone trial - murder - defence of mental illness - mental health professional killed in course of duty by mentally ill person being treated in the community - accused with long history of mental illness - schizophrenia or schizoaffective disorder - medical expert evidence unanimously indicates defence of mental illness available - delusions involving persons including deceased - verdict of not guilty by reason of mental illness - victim impact statements received under s.30L Crimes (Sentencing Procedure) Act 1999 - importance of victim impact statements - order that accused be detained under s.39(1) Mental Health (Forensic Provisions) Act 1990

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Mental Health Act 2007
Mental Health (Forensic Provisions) Act 1990

Cases Cited:
Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210
Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28
Lucas v The Queen (1970) 120 CLR 171; [1970] HCA 14
Mizzi v The Queen (1960) 105 CLR 659; [1960] HCA 77
R v Hall (1988) 36 A Crim R 368
R v Jenkins (1963) 64 SR (NSW) 20
R v Klamo (2008) 18 VR 644; [2008] VSCA 75
R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226
R v M'Naghten (1843) 8 ER 718
R v…

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 Kemball

Details

AGLC: R v Kemball [2020] NSWSC 1559
Case: [2020] NSWSC 1559
Decision Date: 04 November 2020

CaseChat Overview and Summary

In the case of R v Kemball, the accused, who had a long history of mental illness, killed a mental health professional who was treating him in the community. The accused was tried in a judge-alone trial for the offence of murder. The primary legal issue before the court was whether the accused's mental illness negated his criminal responsibility for the murder. The court had to consider whether the defence of mental illness was available to the accused, given the unanimous medical expert evidence that such a defence was applicable due to the accused's schizophrenia or schizoaffective disorder, which included delusions involving the deceased.

The court examined the evidence and concluded that the accused's mental illness was such that it significantly impaired his ability to understand the nature and quality of his act or to know that it was wrong. The court accepted the unanimous expert evidence that the accused suffered from a severe mental illness that rendered him unable to form the requisite intent to commit murder. Consequently, the court found the accused not guilty by reason of mental illness. The court also received victim impact statements in accordance with section 30L of the Crimes (Sentencing Procedure) Act 1999, acknowledging the importance of these statements in the sentencing process. Given the verdict and the nature of the offence, the court ordered the accused's detention under section 39(1) of the Mental Health (Forensic Provisions) Act 1990.

Orders