R v Loughrey [2011] NSWSC 1456

Supreme Court New South Wales

Medium Neutral Citation: R v Loughrey [2011] NSWSC 1456 Hearing dates: 4/11/2011 Decision date: 29 November 2011 Jurisdiction: Criminal Before: Fullerton J Decision: Not guilty by reason of mental illness Catchwords: CRIMINAL LAW - murder - intent to murder - trial by judge alone - defence of mental illness - special verdict Legislation Cited: Criminal Procedure Act 1986 Mental Health Act 2007 Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Waterlow [2011] NSWSC 326 Category: Principal judgment Parties: The Crown Matthew Peter Loughrey (Accused) Representation: Counsel A McCarthy (Crown) P Hamill SC (Accused) Solicitors Director of Public Prosecutions (Crown) Mitchell Lawyers (Accused) File Number(s): 2011/4767

Judgment 1HER HONOUR : On 5 January 2011 Matthew Peter Loughrey, a mental health patient at Bloomfield Hospital in Orange, attacked a nurse, Emily Pritchard, whilst armed with a knife. She suffered multiple lacerations to her hand. Another nurse, Robert Fenwick, intervened and was fatally stabbed in the chest. He also received injuries to his face, right wrist, palm and thumb, upper right forearm and left ring finger. 2On 30 September 2011 Mr Loughrey was charged with wounding Ms Pritchard with intent to murder her and with the murder of Mr Fenwick. 3On 25 October he was arraigned before me and pleaded not guilty to both charges on the grounds of mental illness as provided for in s 22 of the Mental Health (Forensic Provisions) Act 1990 ("the Act"). 4With the consent of the Director of Public Prosecutions, and with leave granted under s 132 of the Criminal Procedure Act 1986, the trial was fixed for 4 November 2011 and to proceed on that date without a jury. 5The sole issue at trial was whether Mr Loughrey had discharged the onus of establishing that he should be acquitted of both charges on the grounds of mental illness pursuant to s 38 of the Act. This is sometimes referred to as a special verdict. The defence is made out if I am satisfied that, more probably than not, at the time of the offences Mr Loughrey was suffering from a mental illness such that he did not know that what he was doing was wrong. 6In R v Waterlow [2011] NSWSC 326 Hidden J, in considering the test for mental illness as I have stated it, also said: [17] The test was explained by Sir Owen Dixon in his summing-up to the jury in a murder trial in Canberra in 1933, in which the issue was mental illness: The King v Porter (1936) 55 CLR 182. Although couched in the language of a past generation, it would be difficult to find a more lucid explanation of it. Speaking of the accused in that trial, His Honour said (at 189-90): "... The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people." 7The Crown did not seek to persuade me that a special verdict ought not be entered in this case. 8By consent, and without objection, the Crown tendered: an agreed statement of facts; a number of witness statements; transcripts of recorded conversations between police and Mr Loughrey; a transcript of a recorded conversation between police and Mr Fenwick on the day of the attack; photographs of Ms Pritchard's injuries and the knives used in the attack; and a medical report from Dr Samson Roberts, consultant forensic psychiatrist, dated 31 August 2011. 9Mr Hamill SC relied upon the following psychiatrists' reports: (1)Dr Stephen Allnutt, dated 3 May 2011 and 13 July 2011; (2)Dr Olav Nielssen, dated 12 June 2011; (3)Dr Bruce Westmore, dated 26 July 2011. 10The psychiatric reports from all four consultant psychiatrists reflect a uniformity of opinion that at the time of the fatal attack upon Mr Fenwick and the attack upon Ms Pritchard Mr Loughrey was suffering from a mental illness that deprived him of the capacity to consider the moral or legal consequences of his behaviour. 11Mr Hamill also tendered selected material from the compendious medical records relating to Mr Loughrey's care at Bloomfield which included records of the treatment he has received from other health services dating from the time when the need for medical intervention for his mental disability was first identified as a young boy. Mr Hamill also relied upon a statement from Mr Loughrey's mother, which was received after the hearing but with the express consent of the Crown. 12No oral evidence was called in the proceedings.