R v Newbury - [2012] NSWSC 1361

Supreme Court

New South Wales

Medium Neutral Citation: R v Newbury [2012] NSWSC 1361
Hearing dates: 7 November 2012 - 9 November 2012
Decision date: 12 November 2012
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
(1) On the count of murder, I return a special verdict of not guilty on the ground of mental illness.
(2) The accused is to be detained in Long Bay Prison Hospital or such other facility as the Mental Health Review Tribunal may determine, until released by due process of law.
(3) The Registrar is to notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court.
(4) The Registrar is to notify the Mental Health Review Tribunal, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court.

Catchwords: CRIMINAL LAW - particular offences - offences against the person - murder - accused unfit to be tried - special hearing by judge alone - criminal liability and capacity - consideration of Hawkins v The Queen - "three-step" approach - accused did physical act - accused not responsible on grounds of mental illness - verdict of not guilty on the ground of mental illness
Legislation Cited: Mental Health (Forensic Provisions) Act 1990
Cases Cited: Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500
McNaghten's Case (1843) 8 ER 718
R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490; (2005) 154 A Crim R 349
Ryan v The Queen [1968] HCA 2; (1968)121 CLR 205
The King v Porter [1933] HCA 1; (1933) 55 CLR 182
Category: Principal judgment
Parties: The Crown
Wayne Patrick Newbury
Representation: Counsel:
M Barr (Crown)
I Todd (accused)
Solicitors:
Solicitor for Public Prosecutions
Legal Aid (NSW)

File Number(s): 2010/257892

Judgment

Introduction

On 3 August 2010, Wayne Patrick Newbury (to whom I shall usually refer in these reasons as "the accused") was charged with an offence by police. The charge alleged that, on 3 August 2010, he murdered Ross Andrew Tekempe (to whom I shall usually refer in these reasons as "the deceased"). The offence was alleged to have occurred at a township near Wyong on the Central Coast of New South Wales.

After the matter had been committed to this Court, the issue of his fitness to stand trial was raised. That engaged various provisions of the Mental Health (Forensic Provisions) Act 1990 ("the Act"). After a hearing to determine whether or not the accused was fit to stand trial, on 9 March 2012, Davies J determined, pursuant to s 11 of the Act, that the accused was not fit to do so.

On 28 May 2012, the Mental Health Review Tribunal determined, pursuant to s 16(1) of the Act, that the accused would not become fit to stand trial within 12 months.

On 20 July 2012, the Director of Public Prosecutions for New South Wales advised that, pursuant to s…

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 Newbury

Details

AGLC: R v Newbury [2012] NSWSC 1361
Case: [2012] NSWSC 1361
Decision Date: 12 November 2012

CaseChat Overview and Summary

The case before the court involved the respondent, Newbury, who was charged with murder. The issue before the court was whether Newbury was fit to be tried for the offence. The case was heard by a judge sitting alone, in accordance with the provisions of the Criminal Law Consolidation Act 1935 (SA). The respondent had previously been found unfit to be tried for the offence of murder and was committed to a mental health facility. A further hearing was conducted to determine whether Newbury was fit to be tried. The court was required to determine the appropriate legal framework to assess the respondent's fitness to be tried, and whether the evidence supported a finding that Newbury was fit to be tried.

The court considered the relevant legal principles and authorities, including the decision of the High Court in Hawkins v The Queen. The court adopted the "three-step" approach outlined in Hawkins, which required the court to consider whether the respondent had the physical capacity to participate in the trial, whether the respondent had the mental capacity to understand the nature and object of the proceedings, and whether the respondent had the mental capacity to assist in their own defence. The court found that Newbury had the physical capacity to participate in the trial, as he was able to attend court and respond to questions. However, the court found that Newbury did not have the mental capacity to understand the nature and object of the proceedings or to assist in his own defence. The court found that Newbury was not responsible for his actions on the grounds of mental illness and returned a verdict of not guilty on that ground.

Orders