Mizzi v The Queen [1960] HCA 77

High Court of Australia Dixon C.J. McTiernan, Fullagar, Menzies and Windeyer JJ. Mizzi v The Queen [1960] HCA 77

ORDER Order that the application for special leave to appeal be granted and that the hearing of the application be treated as the hearing of the appeal. Appeal allowed. Order of the Supreme Court as Court of Criminal Appeal discharged. In lieu thereof order that the conviction for murder and judgment thereon be quashed and that a verdict and judgment of not guilty upon the ground of insanity be entered. Order that the appellant be kept in strict custody in some place usual for the purpose until the pleasure of the Governor of Victoria be known.

Cur. adv. vult.

The Court delivered the following written judgment:—

Nov. 8 Dixon C.J., McTiernan, Fullagar, Menzies and Windeyer JJ.

This is an application for special leave to appeal from an order of the Full Court of the Supreme Court of Victoria refusing the applicant leave to appeal from a conviction for murder. The decision was that of a majority of the Court, Herring C.J. and Gavan Duffy J., Monahan J. dissenting.

On 23rd December 1959 the prisoner killed a woman named Myrtle Bourke by stabbing her with a knife which he took from some place in the kitchen where they were at the time. It was the kitchen of a house in Fitzroy Street, Fitzroy, where he dwelt. She lived some doors up the street. They had become acquainted and had established a sexual association. For present purposes it is unnecessary to go into the circumstances of the sordid life they led or indeed to give an account of the detailed facts of the case.

He left her on the kitchen floor and went off to the police station. Ultimately he signed a written statement recounting what had occurred. This showed a clear enough perception of the course of events but there was much in it to arouse suspicion as to his sanity and as to the reality of some of the more or less trivial actions he ascribed to the dead woman. At his trial his defence was insanity. The defence was supported by three physicians, psychiatrists, who were called for the prisoner. No evidence was called by the Crown in rebuttal. The three physicians were of high qualification and experience; two were government officers whose work lay at the psychiatric clinic at Pentridge Prison. They had investigated the prisoner's condition for the Authorities. The third was a specialist in private practice. All three physicians deposed to the opinion that the prisoner suffered from a disease or disorder of the mind, namely paranoiac schizophrenia, as a result of which he had stabbed the woman. They considered that in consequence of this disease or disorder he had no appreciation of the wrongness of his act and they went as far as saying that it might well be that he had not a full or sufficient appreciation of the nature and quality of his act. The latter view was put by the witnesses on grounds that were not identical but one of the prison doctors said, in effect, that the prisoner's knowledge of what he was doing with the knife "was on a less responsible level than the word "know" is usually used". This may be taken to indicate the reason for their tendency to doubt or deny the sufficiency of the prisoner's appreciation of the nature and quality of his act. All three were of opinion that he should be certified as an insane person.