R v Xinfei Gu - [2009] NSWSC 1305

CITATION: R v Xinfei Gu [2009] NSWSC 1305

HEARING DATE(S): 23/11/09-27/11/09

JUDGMENT DATE :
27 November 2009

JURISDICTION: Criminal

JUDGMENT OF: Barr AJ

DECISION: I find that the accused is not guilty by reason of mental illness of the charge that he murdered Robert Woodger. I order that he be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.

LEGISLATION CITED: Mental Health Act 2007

PARTIES: Regina (Crown)
Xinfei Gu (Accused)

FILE NUMBER(S): SC 2008/11988

COUNSEL:
Mr R Herps (Crown)
Mr M Ierace SC (Accused)

SOLICITORS: R Herbert (Solicitor for Public Prosecutions)
S Sandig (Legal Aid Commission)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

BARR AJ

Friday 27 November 2009

2008 of 11988 Regina v Xinfei GU
VERDICT

1 His Honour: The accused, Xinfei Gu is charged with the murder of Robert Woodger on 20 June 2007 at Eastwood. On 6 February 2009 the accused was found unfit to be tried and was referred to the Mental Health Review Tribunal in accordance with the relevant legislation. The Tribunal considered the matter and concluded that the accused would not become fit to be tried within the ensuing period of 12 months. Accordingly, the Director of Public Prosecutions required that there be a special hearing into the question whether the accused committed the offence charged.

2 The accused cannot be tried for murder because he cannot, because of his mental condition, participate in a trial to the degree required by the law. Although a special hearing is very like a trial there are important differences. The accused cannot be found guilty of the charge and he cannot be sentenced. He can instead be found on the limited evidence available to have committed the offence charged or any alternative offence permitted by law, and, if that happens, the Court can impose an approximation of a sentence, called a limiting term. The accused can, however, be found not guilty, and if that happens all the consequences of an acquittal follow. He may also be found not guilty by reason of mental illness, with all the consequences of such a verdict.

3 The law provides that a special hearing be heard before a judge sitting without a jury unless there is an election on behalf of the accused or the Crown for trial by jury. There has been no such election in the present case and the special hearing has therefore been held before me as Judge of the law and the facts. I have heard the evidence and the submissions of counsel upon it and now deliver my verdict and reasons.

4 Mr Robert Woodger was on duty as a taxi driver in the early hours of 20 June 2007. Records resulting from electronic communications between his vehicle and the taxi base show that he set down a passenger at Marsfield, near…

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 Xinfei Gu

Details

AGLC: R v Xinfei Gu [2009] NSWSC 1305
Case: [2009] NSWSC 1305
Decision Date: 27 November 2009

CaseChat Overview and Summary

In the case of R v Xinfei Gu, the accused, Xinfei Gu, was charged with the murder of Robert Woodger. The trial was held in the Supreme Court of New South Wales, Common Law Division, before Barr AJ. The court had to determine whether the accused committed the offence of murder and whether he was not guilty by reason of mental illness. The court found that the accused was not guilty by reason of mental illness. The court based its decision on the evidence provided by two expert psychiatrists, Dr Lucas and Dr Skinner, who agreed that the accused was suffering from paranoid schizophrenia at the time of the events. The court accepted the evidence of the experts and found that the accused was unable to appreciate the wrongness of his actions due to his mental illness. Consequently, the court ordered that the accused be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.

Orders