R v Fang (No. 1) - [2016] NSWSC 1783

Supreme Court

New South Wales

Medium Neutral Citation: R v Fang (No. 1) [2016] NSWSC 1783
Hearing dates: 17 November 2016
Date of orders: 17 November 2016
Decision date: 17 November 2016
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Allow questions of Dr Skinner as to the degree of the Accused’s impairment and whether it was substantial.

Catchwords: CRIMINAL LAW – murder trial - Accused relies on partial defence of substantial impairment by abnormality of mind - evidence of forensic psychiatrist - permissible areas of opinion evidence - medical opinion open on matters in s.23A(1)(a) Crimes Act 1900 - opinion may be expressed concerning degree of impairment and whether substantial - statutory prohibition upon medical opinion of matters in s.23A(1)(b) - whether impairment so substantial as to warrant liability for murder being reduced to manslaughter a question solely for the jury
Legislation Cited: Crimes Act 1900
Crimes Amendment (Diminished Responsibility) Act 1997
Interpretation Act 1987
Cases Cited: Potts v R [2012] NSWCCA 229; 227 A Crim R 217
R v Trotter (1993) 35 NSWLR 428
Texts Cited: New South Wales Law Reform Commission: Report 82 (1997), “Partial Defences to Murder: Diminished Responsibility”
Category: Procedural and other rulings
Parties: Regina (Crown)
Zhen Fang (Accused)
Representation:
Counsel:
Mr C Maxwell QC (Crown)
Mr AJ Bellanto QC; Ms YC Lin (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Andrew Scali (Accused)

File Number(s): 2014/291301
Publication restriction: ---

JUDGMENT

JOHNSON J: The Accused, Zhen Fang, is standing trial for the murder of Ting Huang in 2014. The Accused seeks to rely upon the partial defence of "substantial impairment" under s.23A Crimes Act 1900.
The Crown has called in its case Dr Yvonne Skinner, forensic psychiatrist. The Accused is to call in his case Dr Olav Nielssen and Dr Stephen Allnutt, both forensic psychiatrists. The evidence of the psychiatrists will touch upon the issue of substantial impairment and other issues.
In the course of cross-examination of Dr Skinner yesterday afternoon by Senior Counsel for the Accused, objection was taken by the Crown to a question put to the witness. The objection has led to submissions being made by counsel concerning the permissible areas of evidence which may be given by expert medical witnesses where substantial impairment is raised.
Section 23A Crimes Act 1900 is in the following terms:

“23A    Substantial impairment by abnormality of mind
(1)    A person who would otherwise be guilty of murder is not to be convicted of murder if:
(a)    at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and
(b)    the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
(2)    For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 1783
Decision Date: 17 November 2016

CaseChat Overview and Summary

The case before the court was a murder trial where the accused relied on a partial defence of substantial impairment by abnormality of mind. The defendant, Fang, was charged with murder but claimed a diminished responsibility due to a mental condition. The court needed to determine the admissibility and weight of forensic psychiatric evidence in establishing the defence. The primary legal issues were whether the medical opinion on the degree of impairment and its substantiality was permissible and whether the court could consider the evidence in determining the degree of impairment. Additionally, the court needed to decide if the question of whether the impairment was so substantial as to reduce the liability for murder to manslaughter was a matter for the jury or the court.

The court considered the statutory framework provided by section 23A of the Crimes Act 1900, which delineates permissible areas of opinion evidence for forensic psychiatrists. It concluded that while medical opinion on the degree of impairment and its substantiality was permissible, opinions on matters listed in section 23A(1)(b) were not. The court found that the medical evidence could assist the jury in determining the extent of the impairment, but the ultimate question of whether the impairment was so substantial as to warrant a reduction in liability from murder to manslaughter remained for the jury. The court emphasised that the jury was to assess the evidence and decide whether the accused's mental condition substantially impaired their responsibility for the crime.

Ultimately, the court held that the forensic psychiatrist's evidence was admissible to the extent it addressed the degree of impairment and its substantiality. The court directed the jury to consider this evidence in determining whether the accused's mental condition substantially impaired their responsibility for the crime. However, the decision on whether this impairment warranted a reduction in liability from murder to manslaughter remained within the purview of the jury. The court provided clear guidance to the jury on how to assess the medical evidence and apply it to the legal criteria set out in the Crimes Act 1900.

Orders