R v MD - [2016] NSWSC 1286

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v MD [2016] NSWSC 1286
Hearing dates: 14 September 2016
Decision date: 14 September 2016
Before: R A Hulme J
Decision:
Not guilty by reason of mental illness

Catchwords: CRIMINAL LAW – murder – deceased infant daughter of accused – judge alone trial – not disputed that deliberate act of the accused caused the death – where sole issue is defence of mental illness – expert evidence unanimously indicates defence available – accused suffered from major depressive illness with psychotic features – not guilty by reason of mental illness
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) s 15A
Criminal Procedure Act 1986 (NSW) s 132
Mental Health (Forensic Provisions) Act 1990 (NSW) ss 38, 39(1)
Cases Cited: Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28
Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
Mizzi v The Queen (1960) 105 CLR 659; [1960] HCA 77
R v Falconer (1990) 171 CLR 30; [1990] HCA 49
R v M’Naghten (1843) 8 ER 718
R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226
R v Porter (1933) 55 CLR 182; [1933] HCA 1
R v Presser [1958] VR 45
Category: Principal judgment
Parties: Regina
MD
Representation:
Counsel:
Mr L Carr (Crown)
Ms J Manuell SC (Accused)
Solicitors:
Solicitor for Public Prosecutions
Oxford Lawyers

File Number(s): 2015/217607

Judgment

HIS HONOUR: The accused was arraigned before me this morning and entered a plea of not guilty to a charge that she murdered her 6 week old daughter ("FD") at Wallsend on 24 July 2015.
The law provides that nothing may be published or broadcast in a way that would identify the child: s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). To that end there can be no reference to the names of members of her family including the accused.
The accused applied for an order that she be tried without a jury and the Crown consented. Accordingly I made a trial by judge alone order pursuant to s 132 Criminal Procedure Act 1986 (NSW).

Crown case

Evidence in the Crown case establishes the following matters; none of which are disputed.
The accused was born in a small village in Senegal in 1989. She married her husband ("OD") in Senegal in April 2007. OD travelled to Australia alone in late 2007. Their daughter ("AD") was born the following March. She has significant congenital neurological abnormalities and she is deaf and cannot speak. The accused and AD were not reunited with OD until they moved to Australia on 3 April 2014.
In 2015, the accused lived with her family in Wallsend. OD's brother ("MS") and sister ("KD") also lived with them.
The deceased was born at John Hunter Hospital on 9 June 2015. The pregnancy was planned. Both the pregnancy and the delivery were uneventful. The baby was not afflicted with the same genetic condition as her sister and she…

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 MD

Details

AGLC: R v MD [2016] NSWSC 1286
Case: [2016] NSWSC 1286
Decision Date: 14 September 2016

CaseChat Overview and Summary

In the case of R v MD, the accused was charged with the murder of their infant daughter. The matter proceeded to a judge alone trial in the Supreme Court of New South Wales. The only issue in dispute was whether the accused was suffering from a mental illness at the time of the offence, which would negate the intent necessary for murder.

The court was required to determine whether the accused was suffering from a mental illness at the time of the offence and, if so, whether this illness negated the requisite intent for murder. The prosecution accepted that the accused's deliberate act caused the death of the infant but argued that the defence of mental illness was not available. The defence presented expert evidence that the accused suffered from a major depressive illness with psychotic features at the time of the offence, which impaired their ability to form the intent necessary for murder.

The court accepted the unanimous expert evidence that the accused suffered from a major depressive illness with psychotic features at the time of the offence. The court found that this illness negated the requisite intent for murder, and therefore the accused was not guilty of murder but guilty of manslaughter by reason of mental illness. The court noted that the defence of mental illness is available where the accused's mental illness negates the intent necessary for the offence charged. The court further noted that the defence of mental illness is a question of fact to be determined by the court on the evidence before it.

The court ordered that the accused be detained in a mental health facility until such time as the court is satisfied that they no longer pose a risk to themselves or others. The court also ordered that the case be referred to the Director of Public Prosecutions for consideration of appropriate charges in relation to the offence of manslaughter.

Orders