CITATION: R v Shane GILL [2009] NSWDC 229 HEARING DATE(S): 24 - 27 August 2009
JUDGMENT DATE:
27 August 2009JURISDICTION: 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 1990CASES 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 27TEXTS CITED: US Diagnostic Manual of Mental Disorders PARTIES: The Crown
Shane GillFILE NUMBER(S): DC 2007/9773 COUNSEL: Crown: Mr D Williams
Defence: Mr J DorisSOLICITORS: 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…
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- AGLC
- R v Shane Gill [2009] NSWDC 229
- Case
- [2009] NSWDC 229
- Decision Date
CaseChat Overview and Summary
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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