R v WM (No 2) - [2019] NSWDC 861

District Court

New South Wales

Medium Neutral Citation: R v WM (No 2) [2019] NSWDC 861
Hearing dates: 30 April; 1, 2, 3, 6 May; 18, 19, 20, 21, 22, 25, 26 November 2019
Date of orders: 09 December 2019
Decision date: 09 December 2019
Jurisdiction: Criminal
Before: P Taylor SC DCJ
Decision:
Warren Murray is found not guilty of counts 1 and 2 on the indictment, and not guilty in respect of the alternative offence of attempted sexual intercourse without consent.

Catchwords: CRIMINAL PROCEDURE - special hearing - sexual intercourse without consent – mental illness – burden of proof – attempted sexual intercourse without consent
Legislation Cited: Crimes Act 1900, s 61HA, s 61HE, s 578A
Criminal Procedure Act 1986, s 162
Evidence Act 1995, s 165
Mental Health (Forensic Provisions) Act 1990, s 10, s 14, s 15, s 16, s 19, s 21, s 21A, s 22, s 23
Cases Cited: Anderson v The Queen [2010] VSCA 108
R v Randall (1991) 53 A Crim R 380
Category: Principal judgment
Parties: Regina
WM (Accused)
Representation:
Counsel:
Mr T Abdulhak (Crown)
Mr B Robinson (Accused)
Solicitors:
Office of Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2015/260022
Publication restriction: S 578A of the Crimes Act 1900 (NSW) applies. A person shall not publish any matter which identifies the complainant in the proceedings or any matter which is likely to lead to the identification of the complainant. As such, pseudonyms have been used in the published judgment for all persons except for police officers and expert witnesses.

Judgment

A. Introduction

Warren Murray*[1] is charged with engaging in two counts of sexual intercourse with Sarah Martin* without her consent. In addition to denying the offences, and the statutory alternative offences of attempted sexual intercourse without consent, Mr Murray has raised, as an alternative, the defence of not guilty by reason of mental illness via a special hearing.
1. S 578A of the Crimes Act 1900 (NSW) applies. A person shall not publish any matter which identifies the complainant in the proceedings or any matter which is likely to lead to the identification of the complainant. As such, pseudonyms have been used in the published judgment for all persons except for police officers and expert witnesses. * Denotes a pseudonym.

B. A special hearing

Following an inquiry under s 10 of the Mental Health (Forensic Provisions) Act 1990 (MH(FP) Act), Mr Murray was on 19 July 2017 found unfit to be tried for the offences under s 14 of the Act. That unfitness is presumed to persist until or unless the contrary is proved, under s 15.
In accordance with s 14 of the MH(FP) Act, Mr Murray was referred to the Mental Health Review Tribunal, who in January 2018 found that Mr Murray "will not become fit to be tried for the offences with which he has been charged within 12 months of the Court's finding of unfitness", in accordance with 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 WM (No 2)

Details

AGLC: R v WM (No 2) [2019] NSWDC 861
Case: [2019] NSWDC 861
Decision Date: 09 December 2019

CaseChat Overview and Summary

The case before the court involved a criminal matter where the accused, Warren Murray, faced charges of sexual intercourse without consent and attempted sexual intercourse without consent. The proceedings were held in the County Court of Victoria. The defence argued that the accused was suffering from a mental illness at the time of the alleged offences, which impacted his ability to form the requisite intent for the crimes.

The central legal issues for the court to decide were whether the accused had the requisite intent for the offences of sexual intercourse without consent and attempted sexual intercourse without consent, and whether the defence of mental illness was valid in absolving the accused of criminal responsibility. Additionally, the court needed to determine the appropriate burden of proof in this context.

The court found that the accused was not able to form the requisite intent for the offences due to his mental illness at the time of the alleged incidents. This was based on expert psychiatric evidence that established the accused’s mental state. The court held that the prosecution had not discharged the burden of proof beyond reasonable doubt. Consequently, the accused was acquitted of the charges of sexual intercourse without consent and the alternative offence of attempted sexual intercourse without consent.

Orders

Orders of the court

Warren Murray is found not guilty of counts 1 and 2 on the indictment, and not guilty in respect of the alternative offence of attempted sexual intercourse without consent.

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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Medium Neutral Citation:	R v WM (No 2) [2019] NSWDC 861
Hearing dates:	30 April; 1, 2, 3, 6 May; 18, 19, 20, 21, 22, 25, 26 November 2019
Date of orders:	09 December 2019
Decision date:	09 December 2019
Jurisdiction:	Criminal
Before:	P Taylor SC DCJ
Decision:	Warren Murray is found not guilty of counts 1 and 2 on the indictment, and not guilty in respect of the alternative offence of attempted sexual intercourse without consent.
Catchwords:	CRIMINAL PROCEDURE - special hearing - sexual intercourse without consent – mental illness – burden of proof – attempted sexual intercourse without consent
Legislation Cited:	Crimes Act 1900, s 61HA, s 61HE, s 578A Criminal Procedure Act 1986, s 162 Evidence Act 1995, s 165 Mental Health (Forensic Provisions) Act 1990, s 10, s 14, s 15, s 16, s 19, s 21, s 21A, s 22, s 23
Cases Cited:	Anderson v The Queen [2010] VSCA 108 R v Randall (1991) 53 A Crim R 380
Category:	Principal judgment
Parties:	Regina WM (Accused)
Representation:	Counsel: Mr T Abdulhak (Crown) Mr B Robinson (Accused) Solicitors: Office of Director of Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2015/260022
Publication restriction:	S 578A of the Crimes Act 1900 (NSW) applies. A person shall not publish any matter which identifies the complainant in the proceedings or any matter which is likely to lead to the identification of the complainant. As such, pseudonyms have been used in the published judgment for all persons except for police officers and expert witnesses.