R v Struthers - [2018] NSWSC 1824

Supreme Court

New South Wales

Medium Neutral Citation: R v Struthers [2018] NSWSC 1824
Hearing dates: 26 November 2018 – 28 November 2018
Decision date: 29 November 2018
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
(1) On the count of attempted murder, I return a special verdict that the accused is not guilty on the ground of mental illness.
(2) On the count of murder, I return a special verdict that the accused is not guilty on the ground of mental illness.
(3) Pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990, the accused is to be detained in the designated mental health PODS at Mulawa Correctional Centre, Silverwater, or such other place as may be determined from time to time by the Mental Health Review Tribunal as an appropriate place, until released by due process of law.
(4) 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 me.
(5) The Registrar is to notify the Mental Health Review Tribunal and Justice Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by me, and to provide those bodies with the following documentation:
(a) A copy of these reasons for verdict and orders;
(b) A transcript of these proceedings; and
(c) A copy of the exhibits tendered at trial.

Catchwords: CRIMINAL LAW – trial by judge alone – count averring attempted murder – count averring murder – allegation that accused drowned one son, and attempted to drown other son – special defence of not guilty by reason of mental illness – psychiatrists agreed that defence available – verdicts of not guilty on the ground of mental illness
Legislation Cited: Crimes Act 1900 (NSW), s 23A
Criminal Procedure Act 1986 (NSW), s 132
Mental Health (Forensic Provisions) Act 1990 (NSW), s 38
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
Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205
The King v Porter [1933] HCA 1; (1933) 55 CLR 182
Category: Principal judgment
Parties: Regina (Crown)
Lisa Struthers (a pseudonym) (Accused)
Representation:
Counsel:
M Pincott (Crown)
E Wilson SC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2017/67645
Publication restriction: Pseudonyms adopted for child victims, accused, mother of victims, and grandmother of victims, in order to avoid identification of victims, pursuant to s 15A(5) of the Children (Criminal Proceedings) Act 1987 (NSW).

Judgment

Introduction

In the afternoon on 2 March 2017, Ms Lisa Struthers (a pseudonym for the accused, used in this written judgment to protect the identities of two children), then aged 27 years, was in the waters of the Murray River at Moama, a township in south-western New South Wales some distance to the west of Albury, and across the…

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 Struthers

Details

AGLC: R v Struthers [2018] NSWSC 1824
Case: [2018] NSWSC 1824
Decision Date: 29 November 2018

CaseChat Overview and Summary

The case of R v Struthers involved the defendant, Struthers, being charged with the murder of one son and the attempted murder of another. The dispute centred around the legal and factual findings required to determine Struthers' guilt or innocence, particularly in light of a special defence of not guilty by reason of mental illness. The matter was heard and determined in the Supreme Court of Victoria.

The central legal issue was whether Struthers was guilty of murder and attempted murder, and if so, whether the defence of not guilty by reason of mental illness was applicable. The court had to assess the evidence presented by the prosecution regarding the deaths and attempted deaths of the sons, and the defence evidence concerning Struthers' mental state at the time of the alleged offences. Additionally, the court needed to evaluate the psychiatric evidence provided by two psychiatrists, both of whom agreed that Struthers was not guilty by reason of mental illness.

In delivering the verdict, the court considered the psychiatric evidence and determined that Struthers was not guilty by reason of mental illness on both counts. The court found that the evidence supported the conclusion that Struthers was suffering from a mental illness at the time of the alleged offences, which negated the necessary mens rea for the crimes of murder and attempted murder. Consequently, Struthers was acquitted on both counts based on the special defence.

The final orders of the court were that Struthers be acquitted of both murder and attempted murder on the ground of not guilty by reason of mental illness.

Orders