Regina v Nguyen [2009] NSWSC 918

New South Wales Supreme Court

CITATION : Regina v Nguyen [2009] NSWSC 918

HEARING DATE(S) : 24/08/09, 25/08/09, 26/08/09

JUDGMENT DATE : 10 September 2009

JUDGMENT OF : Hoeben J

DECISION : Accused not guilty of murder, but guilty of manslaughter on each count.

CATCHWORDS : Criminal law - indictment charging two acts of murder - trial by judge alone - defence of mental illness - background evidence - psychiatric opinion - whether accused mentally ill under McNaughten rule or whether substantially impaired by an abnormality of the mind under s 23A of the Crimes Act 1900 - importance of letters left by accused.

Crimes Act 1900 LEGISLATION CITED : Criminal Procedure Act 1986 Mental Health (Forensic Provisions) Act 1990

CATEGORY : Principal judgment

The King v Porter (1933) 55 CLR 182 CASES CITED : R v Jennings [2005] NSWSC 789 R v McNaughten (1843) 8 ER 718

PARTIES : Regina Truong Thi Nguyen

FILE NUMBER(S) : SC 2008/19053001

COUNSEL : Ms M Cunneen SC - Crown Mr RC Pontello - Accused

SOLICITORS : Solicitor for Public Prosecutions - Crown Solicitor for Legal Aid Commission of NSW - Accused

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOEBEN J

Thursday 10 September 2009

2008/19053001 – REGINA v Truong Thi NGUYEN

JUDGMENT 1 HIS HONOUR: Nature of Proceedings The accused is indicted on a charge of murdering Joshua Bui on 19 February 2008 and of murdering Jade Bui on that same date. Pursuant to s 132(1) of the Criminal Procedure Act 1986 the accused elected to be tried by judge alone in relation to those charges. 2 Upon arraignment, the accused pleaded not guilty to both charges. 3 The charges arise from the killing by the accused of her two children on 19 February 2008. Joshua was born in March 2003 and was therefore almost five at the time of his death. Jade was born in February 2005 and was almost three. Although the precise cause of their deaths could not be ascertained as a result of the post mortem, the most likely cause in each case was asphyxiation (i.e. suffocation). This was confirmed in histories given by the accused to psychiatrists who examined her. 4 There was little dispute about the facts. By consent the Crown case statement, medical reports from psychiatrists, statements from witnesses and a copy photograph were placed before the Court. 5 The basis for the accused's plea of not guilty is mental illness under s 38 Mental Health (Forensic Provisions) Act 1990. In other words, the accused relies upon mental illness in the McNaughten sense. The accused submits that the appropriate verdict is "not guilty of murder on the grounds of mental illness". The Crown contends that this is a case to which s 23A of the Crimes Act 1900 applies and that the accused is guilty of manslaughter in that at the time of the offences she was suffering substantial impairment by abnormality of the mind. Accordingly, the real issue litigated has been the mental condition of the accused at the time of the killing of her children. 6 Because of the agreement as to the facts, the trial lasted only three days. The oral evidence comprised that of the accused's husband and relatives and friends of the accused. Three psychiatrists also gave evidence. Dr Allnutt and Dr Wilcox were called by the Crown and Dr Nielssen was called by the accused. The accused did not give evidence.