R v Townsend [2016] NSWSC 218

Supreme Court New South Wales

Medium Neutral Citation: R v Townsend [2016] NSWSC 218 Hearing dates: 9, 10 March 2016 Decision date: 10 March 2016 Jurisdiction: Common Law Before: Adams J Decision: 1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) enter a special verdict of not guilty by virtue of mental illness.

2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW) order Mr Townsend be detained at the Long Bay Prison Hospital, or at such other place as may be determined by the Mental Health Review Tribunal, until released by due process of the law.

I recommend the transfer of the Mr Townsend to the Forensic Hospital, Malabar as soon as practicable. Catchwords: CRIMINAL LAW – murder – trial by judge alone – agreed facts – defence of mental illness – accused suffers from schizophrenia – special verdict of not guilty by virtue of mental illness Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39 Cases Cited: The King v Porter (1936) 55 CLR 182 Category: Principal judgment Parties: Regina (Crown) Brian Francis Townsend (Accused) Representation: Counsel: L Shaw (Crown) I Nash (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2014/329958

Judgment

Introduction 1. On 9 March 2016 the accused, Brian Francis Townsend was arraigned in this Court on an indictment charging him with the murder of Mr George Cornell on 9 November 2014. To that charge he pleaded not guilty. In substance, although he admits that he killed Mr Cornell, intending to do so, the outstanding question is whether, at the time, he was mentally ill so as not to be responsible according to law for his actions. If so, then the appropriate verdict is a special verdict under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) of "not guilty by virtue of mental illness". Such a verdict, where found, empowers the Court to order that the person be detained until released by due process of law or to be released either conditionally or otherwise. An order for release cannot be made unless the Court is satisfied, in substance, that the safety of the person or the public will not be seriously endangered by the person's release. 2. The defence is made out if the Court is satisfied, more likely than not, that at the time of the offence he was suffering from a mental illness such that he did not know that what he was doing was wrong. 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. This has been applied in such trials in this State ever since. 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."