R v Shane Gill - [2009] NSWDC 229

CITATION: R v Shane GILL [2009] NSWDC 229

HEARING DATE(S): 24 - 27 August 2009

JUDGMENT DATE:
27 August 2009

JURISDICTION: Criminal

JUDGMENT OF: Knox SC DCJ

DECISION: I find the accused not guilty by reason of mental illness.

CATCHWORDS: Criminal law - Sexual assault - Special hearing - Judge alone hearing - Directions - Chronic schizo affective disorder - Hallucinations - Voices - Disordered thought processes - Hawkins and Minani:questions to be asked and order of questions to be asked on consent and knowledge where insanity raised - Not guilty by reason of mental illness - Conditions of release - Compliance with medication

LEGISLATION CITED: Crimes Act 1900
Mental Health (Forensic Provisions) Act 1990

CASES CITED: Doe v R [2008] NSWCCA 203
Flemming v R (1998) 197 CLR 250
Hawkins v The Queen (1994) 179 CLR 500
R v Minani [2005] NSWCCA 226
R v M'Naghten (1843) All ER 229
R v Hawkins (1994) 122 ALR 27

TEXTS CITED: US Diagnostic Manual of Mental Disorders

PARTIES: The Crown
Shane Gill

FILE NUMBER(S): DC 2007/9773

COUNSEL: Crown: Mr D Williams
Defence: Mr J Doris

SOLICITORS: Crown: NSW DPP
Defence: Dribbus Kovcevic

JUDGMENT

Indictment

1 The accused has been charged on an indictment containing the following count:

On or about 23 February 2007 at Towradgi in the state of New South Wales, did have sexual intercourse with CD without consent and knowing that CD had not consented to the sexual intercourse.

2 This charge was brought after an incident in which sexual intercourse is alleged to have taken place between the complainant and the accused at the complainant’s home in the early hours of the morning of 23 February 2007. The principal issues in the trial are whether the sexual intercourse that occurred was without consent and the accused’s mental capacity at the time.

3 The charge was brought pursuant to section 61I of the Crimes Act 1900. It is not an offence of specific intent for the purposes of section 428B.

Procedural background

4 The issue of the accused’s fitness to plead was raised on 28 February 2008. A fitness hearing was conducted before Judge Goldring on 28 April 2008 and the accused found unfit to plead.

5 Thereafter the accused was referred to the Mental Health Review Tribunal. On 21 August 2008 the Tribunal found that he would be unlikely to be fit to plead within a 12-month period.

6 The Director of Public Prosecutions advised on 11 February 2009 that there be further proceedings. Judge Conlon of this Court then directed on 30 March 2009 pursuant to s19(1)(b) of the Mental Health (Forensic Provisions) Act, 1990 that a special hearing be held. This trial commenced on 24 August 2009.

Procedure adopted

7 The relevant procedures to be adopted are set out in section 21A of the Mental Health (Forensic Provisions) Act, 1990.

8 The Crown was given leave to amend the indictment as to the dates of the alleged offence. The amended indictment was read to…

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 Shane Gill

Details

AGLC: R v Shane Gill [2009] NSWDC 229
Case: [2009] NSWDC 229
Decision Date: 27 August 2009

CaseChat Overview and Summary

The case of R v Shane Gill was heard in the Supreme Court of South Australia. The accused, Shane Gill, was charged with sexual assault. The dispute centred on Gill’s mental health status at the time of the offence and whether he was capable of forming the necessary intent to commit the crime. The court was required to determine whether Gill was not guilty by reason of mental illness under the relevant provisions of South Australian law.

The primary legal issue was whether Gill suffered from a mental illness that impaired his ability to understand the nature and quality of his act or to know that it was wrong. The court had to consider evidence related to Gill’s chronic schizoaffective disorder, hallucinations, and disordered thought processes. A key issue was whether Gill had the capacity to consent to sexual activity and to understand the wrongfulness of his actions. The court referred to the guidelines set out in the cases of Hawkins and Minani to assess these matters.

After considering the evidence, the court found that Gill suffered from a severe mental illness that rendered him incapable of understanding the nature and quality of his act or knowing it was wrong. The court accepted that Gill’s hallucinations and disordered thought processes significantly impaired his decision-making abilities. Consequently, the court ruled that Gill was not guilty by reason of mental illness. The court also made orders for Gill’s release under specific conditions, including compliance with prescribed medication.

Orders

Orders of the court

I find the accused not guilty by reason of mental illness.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Shane GILL [2009] NSWDC 229
HEARING DATE(S):	24 - 27 August 2009
JUDGMENT DATE:	27 August 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Knox SC DCJ
DECISION:	I find the accused not guilty by reason of mental illness.
CATCHWORDS:	Criminal law - Sexual assault - Special hearing - Judge alone hearing - Directions - Chronic schizo affective disorder - Hallucinations - Voices - Disordered thought processes - Hawkins and Minani:questions to be asked and order of questions to be asked on consent and knowledge where insanity raised - Not guilty by reason of mental illness - Conditions of release - Compliance with medication
LEGISLATION CITED:	Crimes Act 1900 Mental Health (Forensic Provisions) Act 1990
CASES CITED:	Doe v R [2008] NSWCCA 203 Flemming v R (1998) 197 CLR 250 Hawkins v The Queen (1994) 179 CLR 500 R v Minani [2005] NSWCCA 226 R v M'Naghten (1843) All ER 229 R v Hawkins (1994) 122 ALR 27
TEXTS CITED:	US Diagnostic Manual of Mental Disorders
PARTIES:	The Crown Shane Gill
FILE NUMBER(S):	DC 2007/9773
COUNSEL:	Crown: Mr D Williams Defence: Mr J Doris
SOLICITORS:	Crown: NSW DPP Defence: Dribbus Kovcevic