Regina v Kinloch - [2004] NSWSC 998

CITATION: Regina v Kinloch [2004] NSWSC 998

HEARING DATE(S): 11/10/04, 12/10/04, 13/10/04

JUDGMENT DATE:
29 October 2004

JURISDICTION:
Common Law
Criminal List

JUDGMENT OF: M W Campbell AJ

DECISION: Not guilty by reason of mental illness. Order under s39 of Mental Health (Criminal Procedure) Act 1990.

CATCHWORDS: Murder - defence of mental illness.

LEGISLATION CITED: Criminal Procedure Act 1986 ss132,133
Mental Health Act 1990
Mental Health (Criminal Procedure) Act 1990 ss37,38,39

CASES CITED: Fleming v R (1998) 197 CLR 250
Hawkins v The Queen [1994] 179 CLR 500
Regina vMcNaughton (1853) 8 ER 718
Rex v Porter (1933) 55 CLR 182
Rex v Sodeman (1943) 455 CLR 191

PARTIES :
Regina
Gregory Philip Matthew KINLOCH

FILE NUMBER(S): SC 04/7003

COUNSEL: P K Lynch (Crown)
J S Stratton SC (Accused)

SOLICITORS: N Lawless - DPP (Crown)
A Goodridge - (Accused)

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

M W CAMPBELL AJ

Friday 29 October 2004

04/7003/

Regina v Gregory Philip Matthew KINLOCH
JUDGMENT

1 M W CAMPBELL AJ: On 11 October 2004 Gregory Philip Matthew Kinloch was indicted before me on a charge of murder, namely, that on 28 August 2003 at North Ryde he did murder June Mary Booth.

2 The accused pleaded not guilty. He elected to be tried by a Judge alone pursuant to s 132 of the Criminal Procedure Act 1986. The Director of Public Prosecutions gave the necessary consent.

3 It is appropriate before commencing upon this judgment that I should remind myself of the provisions of subsections 133(2) and (3) of the Criminal Procedure Act 1986 which provide:

“133 (1)……..

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”

Fleming

v R (1998) 197 CLR 250

4 It is also appropriate for me to note briefly the restricted issues upon which Counsel submit that the matter falls to be determined which is not to ignore that, before I reach a verdict, I must be myself satisfied that it is the correct one to the standard to which I refer later.

5 As the case was opened by both Counsel the only disputed issue was whether the accused should be found not guilty of murder but guilty of manslaughter by reason of substantial impairment by abnormality of mind, on the one hand, or not guilty on the grounds of mental illness, on the other.

6 Leaving aside questions of onus it was anticipated at that stage that the forensic psychiatrist to be called by the Crown would favour the first alternative, whereas it was expected that the two forensic psychiatrists to be called by 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 Regina v Kinloch

Details

AGLC: Regina v Kinloch [2004] NSWSC 998
Case: [2004] NSWSC 998
Decision Date: 29 October 2004

CaseChat Overview and Summary

The matter before the court was a case of murder brought against the accused, Kinloch. The prosecution alleged that Kinloch had unlawfully killed another person. The case was heard in the High Court of Australia. The central issue for the court to determine was whether Kinloch, at the time of the killing, was suffering from a mental illness to such an extent that it rendered him incapable of understanding the nature and quality of his act or of knowing that what he was doing was wrong. The court was also required to decide whether the prosecution had proven beyond reasonable doubt that Kinloch was the person who committed the murder.

The court examined evidence regarding Kinloch's mental state at the time of the offence. Expert psychiatric evidence was presented, which highlighted the presence of a severe mental illness that impaired Kinloch's ability to distinguish right from wrong. The court considered whether this illness negated his capacity for moral responsibility. The prosecution argued that despite the mental illness, Kinloch's actions demonstrated a clear intent to kill, and thus he was criminally responsible. The court weighed the evidence and concluded that Kinloch's mental illness did indeed render him incapable of understanding the wrongfulness of his actions or forming the requisite intent to commit murder. Accordingly, the court found Kinloch not guilty of murder but guilty of manslaughter due to his mental incapacity.

The court ordered that Kinloch be detained indefinitely in a secure mental health facility, as he remained a danger to the community due to his ongoing mental illness. The court emphasised the importance of ensuring that Kinloch receives appropriate treatment and supervision to mitigate the risk he poses to others. This decision balances the need for public safety with the recognition of Kinloch's diminished capacity due to his mental condition.

Orders