R v Osmand - [2019] NSWSC 326

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Osmand [2019] NSWSC 326
Hearing dates: 25 March 2019
Date of orders: 27 March 2019
Decision date: 27 March 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Under s 38 Mental Health (Forensic Provisions) Act 1990 (NSW), I return a special verdict of not guilty of the charge of murder by reason of mental illness.
(2) Under s 39 of the Act Andrew John Osmand is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.
(3) I direct the Registrar to notify the Attorney General, the Minister for Health and the Mental Health Review Tribunal of these orders as soon as practicable;
(4) The Registrar is to provide the Tribunal with a copy of my reasons and of the reports of Professor Greenberg and Dr Nielssen.

Catchwords: CRIMINAL LAW – offences against the person – murder – trial by judge alone – special verdict – not guilty by reason of mental illness – schizophrenic disorder – distinction between legal and ‘moral’ wrongfulness – finding of not guilty by reason of mental illness
Legislation Cited: Crimes Act 1900 (NSW), s 23
Criminal Procedure Act 1986 (NSW), ss 132, 133
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Alford v Magee (1952) 85 CLR 437
R v Codere [1916] 12 CR App R 21
R v M’Naghten (1843) 8 ER 718
R v Jenkins (1963) 64 SR (NSW) 20
R v Pratt [2009] NSWSC 1108
R v Rodrigues [2010] NSWSC 198
Stapleton v R (1952) 86 CLR 358
The King v Porter (1933) 55 CLR 182; [1933] HCA 1
Category: Sentence
Parties: Regina (Crown)
Andrew John Osmand (Accused)
Representation:
Counsel:
B. Campbell (Crown)
K. Dailly (Accused
Solicitors:

File Number(s): 21017/187455

judgment

The accused, Andrew John Osmand, was arraigned before the Court on 25 March 2019 on an indictment charging that on or about 21 June 2017 at Dangarsleigh he murdered his friend, Kevin Robert Hodges. He pleaded not guilty.
On 7 February 2019 on the election of the accused, made after receiving appropriate legal advice, and with the consent of the Crown, I ordered that the accused was to be tried without a jury. Under s 132(2) Criminal Procedure Act 1986 (NSW) the Court must make an order for trial by judge alone if both the accused and the prosecutor agree.

The Crown case

The Crown case is that the accused killed Mr Hodges during the second State of Origin rugby league game in 2017 by stabbing him with a knife. The stabbing occurred in the lounge room of the accused’s home in the Dangarsleigh area about 13 Kilometres south of Armidale. Mr Hodges had been staying there during a temporary separation from his wife. Mr Hodges and his wife had reconciled before his death and planned to resume cohabitation. But, against his better judgment, Mr Hodges had decided…

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 Osmand

Details

AGLC: R v Osmand [2019] NSWSC 326
Case: [2019] NSWSC 326
Decision Date: 27 March 2019

CaseChat Overview and Summary

The case of R v Osmand involved the defendant, Osmand, who was charged with murder. The matter was heard in the Supreme Court of Victoria. Osmand's defence was that at the time of the offence, he was suffering from a schizophrenic disorder and therefore was not criminally responsible for his actions. The court was tasked with determining whether Osmand was guilty of murder, and if not, whether he was not criminally responsible by reason of mental illness.

The primary legal issue before the court was whether Osmand's mental illness at the time of the offence rendered him not criminally responsible for murder. The court had to consider the distinction between legal and moral wrongfulness and whether Osmand's actions, though morally reprehensible, were excused due to his mental disorder. The court also needed to decide whether the evidence supported a finding of not guilty by reason of mental illness.

The court found that Osmand's schizophrenic disorder met the criteria for a psychiatric disability under the relevant statute. It was established that at the time of the offence, Osmand was experiencing delusions and hallucinations which significantly impaired his ability to understand the nature and quality of his act or that it was wrong. The court concluded that, as a result of his mental illness, Osmand was not criminally responsible for the murder. Consequently, the court entered a verdict of not guilty by reason of mental illness.

As a result of the court's findings, Osmand was not convicted of murder. Instead, he was ordered to be detained in a mental health facility, pending further orders from the court regarding his treatment and management.

Orders