R v Sleiman [2010] NSWSC 1206

New South Wales Supreme Court

CITATION : R v Sleiman [2010] NSWSC 1206 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 18 October 2010

JUDGMENT DATE : 20 October 2010

JUDGMENT OF : Schmidt J

DECISION : Not guilty by reason of mental illness.

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

Crimes Act 1900 Criminal Procedure Act 1986 LEGISLATION CITED : Mental Health Act 2007 Mental Health (Forensic Provisions) Act 1990 Mental Health (Criminal Procedures) Act 1990

CATEGORY : Principal judgment

Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659 R v Coles [2008] NSWSC 682 R v Coleman [2010] NSWSC 177 CASES CITED : R v Huy Pham [2007] NSWSC 1313 Regina v M'Naghton (1843) 8 ER 718 The King v Porter [1933] HCA 1; (1933) 55 CLR 182 Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358

PARTIES : Regina Omran Sleiman

FILE NUMBER(S) : SC 2010/10647

COUNSEL : Mr T Thorpe (Crown) Mr P Winch (Accused)

SOLICITORS : Office of the Director of the Public Prosecutions (Crown) Public Defender (Accused)

- 28 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SCHMIDT J

WEDNESDAY, 20 OCTOBER 2010

2010/10647 R v SLEIMAN

JUDGMENT 1 HER HONOUR: Pursuant to s 18 of the Crimes Act 1900 Omran Sleiman is charged with the murder of David Phillip Williams on 11 January 2010 at Belmore in the State of New South Wales. Under s 132(1) of the Criminal Procedure Act 1986 he has elected to be tried by a judge sitting alone. The Crown has consented to that election. A plea of not guilty has been entered by the accused, who has relied on the defence of mental illness. 2 Under s 133(1) of the Criminal Procedure Act, 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 he has been charged. I am satisfied that the evidence established his fitness. The accused is presumed innocent. He gave no evidence, but no adverse inference flows from that election. The accused does not dispute that he was responsible for the acts which caused Mr William's death. His defence was based on evidence which both parties accept showed that at the time that he caused Mr William's death, the accused was suffering from a mental illness, schizophrenia or 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.