R v Melehan [2010] NSWSC 210

New South Wales Supreme Court

CITATION : R v Melehan [2010] NSWSC 210

HEARING DATE(S) : 22 March 2010

JUDGMENT DATE : 23 March 2010

JUDGMENT OF : Schmidt J

CATCHWORDS : CRIMINAL LAW - judge alone trial - murder - defence of mental illness

Criminal Procedure Act 1986 LEGISLATION CITED : Mental Health Act 2007 Mental Health (Forensic Provisions) Act 1990

CATEGORY : Principal judgment

Mizzi v Regina [1960] HCA 77; (1960) 105 CLR 659 CASES CITED : Regina v Coleman [2010] NSWSC 177 Regina v M'Naghten (1843) 8 ER 718 Regina v Porter [1933] HCA 1; (1933) 55 CLR 182

PARTIES : Regina Tamie Melehan

FILE NUMBER(S) : SC 11710/2009

COUNSEL : Mr M O'Brien (Crown) Ms B Rigg (Accused)

SOLICITORS : Solicitor for the Public Prosecutions (Crown) Public Defender (Accused)

- 16 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SCHMIDT J

Tuesday, 23 March 2010

2007/16340 R v MELEHAN

JUDGMENT 1 HER HONOUR: The accused Tamie Melehan was charged with the murder of David Vaughan on 25 December 2008 at Gosford, New South Wales. On 22 March 2010, the trial proceeded before me as a judge sitting alone without a jury, the accused having made an election for such a trial under s 132(1) of the Criminal Procedure Act 1986, an election which was consented to by the Crown. The accused entered a plea of not guilty. 2 Section 133(1) of the Criminal Procedure Act provides that a judge trying a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt. A judgment by a judge in such cases must include the principles of law applied by the judge and the findings of fact upon which the judge relies (s 133(2)). If any act or law requires a warning to be given to a jury, the judge is to take the warning into account in dealing with the matter (s 133(3)). 3 There was no issue under the Mental Health (Forensic Provisions) Act 1990 as to the accused's fitness to be tried for the offence with which she had been charged. The accused is presumed innocent. She gave no evidence, but no adverse inference flows from that election. While the question of whether the accused had stabbed Mr Vaughan, causing his death, was initially in issue, after an adjournment it was announced at the hearing that the accused did not dispute that she was responsible for the act which caused Mr Vaughan's death. The accused pleaded not guilty to the murder of Mr Vaughan, relying upon the defence of mental illness. This defence was based on the evidence that at the time she caused Mr Vaughan's death, the accused was suffering from a mental illness, paranoid schizophrenia. 4 It follows that if I am satisfied that the Crown has proven the elements constituting the offence of murder, I am required to consider the defence of mental illness which the accused has raised.