R v Gardiner (No 1) [2011] NSWSC 239

Supreme Court New South Wales

Medium Neutral Citation: R v Gardiner (No 1) [2011] NSWSC 239 Hearing dates: 28, 29 March 2011 Decision date: 30 March 2011 Before: BUDDIN J Decision: In accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990 I find the accused not guilty of the charge of murder by reason of mental illness. I order that the accused be detained, pursuant to s 39 of the Act, in the custody of Corrective Services NSW until released by due process of law. The Registrar is to notify the Minister of Health and the Mental Health Review Tribunal of the terms of the orders made by the court. I direct that the various reports of Dr Nielssen and of Dr Roberts be drawn to the attention of Justice Health. Catchwords: CRIMINAL LAW - offence of murder - trial by judge alone - whether "defence" of mental illness available Legislation Cited: Criminal Procedure Act 1986 Mental Health Act Mental Health (Forensic Provisions) Act 1990 Cases Cited: Fleming v R (1988) 197 CLR 250 R v Coleman [2010] NSWSC 177 Category: Principal judgment Parties: Regina (Crown) Noel Keith Gardiner (Offender) Representation: Counsel: S Huggett (Crown) C Bruce SC (Accused) Solicitors: S Kavanagh (Solicitor for Director of Public Prosecutions) (Crown) Legal Aid Commission of NSW (Accused) File Number(s): 2009/199893

Judgment

Introduction 1On 28 March 2011 the accused was arraigned upon an indictment which alleged that: Between 4 September 2009 and 5 September 2009 at Casino in the State of New South Wales [he] did murder Elizabeth Phillips. 2The accused pleaded not guilty to the indictment upon the basis that he was mentally ill at the relevant time. I was informed that originally an issue had arisen as to whether the accused was fit to stand trial. On 21 September 2010 Kirby J determined, upon the basis of an agreed position between the parties, that there was no longer any need for an inquiry into the accused's fitness in respect of the matter. 3The trial of the accused has proceeded as a trial by judge alone after the accused made an election pursuant to s 132(1) of the Criminal Procedure Act 1986 to be tried in that fashion. The accused indicated that he had received advice from his solicitor before making the election and the Crown indicated its consent to the matter taking the course which was proposed. Section 133 of the Act casts certain obligations upon the judge in reaching a verdict in such a trial. I have had regard to those obligations: Fleming v R (1998) 197 CLR 250. 4The accused made a formal admission that he had killed the deceased with an intention to inflict grievous bodily harm upon her. Accordingly, the only issue which I have to determine is whether the accused was mentally ill at the time of the killing. Even upon that issue the evidence is all one way and the parties are in agreement that I should find the accused not guilty by reason of mental illness. 5The offender is now aged 22. It would appear that he was born in Inverell but that his family moved shortly thereafter to Casino. His parents separated when he was about 5 or 6 years of age following which he lived with his mother and a younger brother. At some stage the offender ran away and went to live with his father in Kempsey. Sadly his mother died not long thereafter. 6Following his mother's death, the offender moved to live with his aunt in Sydney and then with a succession of relatives in various parts of the city. The offender had a very disrupted education and was twice expelled from school for fighting. He left school in Year 8. He has a history of significant alcohol and illicit drug dependency and has never been employed. 7The accused is no stranger to the criminal courts. Moreover, he has also been dealt with on a number of occasions under the provisions of the Mental Health (Forensic Provisions) Act 1990 and/or its predecessors. He has also been placed in, and has absconded from, Rozelle Hospital on a number of occasions. Justice Health holds an extensive file containing his medical records.