R v Gianisis [2001] NSWSC 851

New South Wales Supreme Court

CITATION : R v Gianisis [2001] NSWSC 851 FILE NUMBER(S) : SC 70025/01 HEARING DATE(S) : 20/7/2001 JUDGMENT DATE : 20 July 2001

PARTIES : Regina Mark Ronald John Gianisis JUDGMENT OF : Dowd J at 1

COUNSEL : Mr PM Winch- Accused Mr PS Dare- Crown SOLICITORS : Legal Aid Commission of New South Wales- Accused Director of Public Prosecutions (NSW)- Crown CATCHWORDS : Murder - Plea of guilty on the ground of mental illness - Judge alone trial - Psychiatric evidence - Mental Health Review Tribunal LEGISLATION CITED : Mental Health Act 1990 Mizzi v R (1959-1960) 105 CLR 659. CASES CITED : Re M'Naghten's Case (1843) 8 ER 718. The King v Porter (1933) 55 CLR 182. DECISION : 1. Not guilty of murder on the ground of mental illness; and 2. The accused is to be detained in the Psychiatric Ward at the Hospital of Long Bay Correctional Centre, or at such other places as may be referred by the Mental Health Review Tribunal, until released by the due processes of law.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

DOWD J

20 JULY 2001

70025/01 Regina v Mark Ronald John GIANISIS

Remarks on Sentence 1 HIS HONOUR: In this trial, the accused, Mark Ronald John Giansis, is indicted in that on 16 June 2000, at Lithgow, in the State of New South Wales, he did murder Glen Joseph Pateman. The accused has pleaded not guilty, and it is submitted by his counsel that the evidence admitted before me, and having been tendered by the Crown, clearly makes out that that defence of not guilty is on the basis of the accused being not guilty on the grounds of mental illness. 2 The trial before me is without jury, being pursuant to an election dated 13 July 2001 by the accused for the trial to be by judge alone, and the Crown Prosecutor consents to that course, and I consider that it is a proper matter so to do. 3 I direct myself that the crime of murder is committed where the act of the accused, which caused the death of the deceased, was done by him with an intention to kill or to inflict grievous bodily harm. In the present case, the Crown must establish beyond reasonable doubt that it was the accused who did the act which caused the death of the deceased; that the act was a deliberate one on the part of the accused; and that it was done with an intention to kill or to inflict really serious bodily harm. The onus of proof is therefore of the criminal standard, and the Crown has to establish that beyond reasonable doubt. 4 The defence of the accused of not guilty on the grounds of mental illness, requires the accused to make out that defence and he bears the onus of proving that, but the onus on him requires him to establish proof of the defence on the balance of probabilities, and I direct myself that if on the balance of probability I am satisfied that the accused lacked criminal responsibility by reason of mental illness, such verdict does not mean that the accused will go free. 5 I further direct myself that the question of not guilty by reason of mental illness relates to the time when the offence was committed, and in determining the state of mind at the time, I may be assisted by his mental history and his position subsequently.