R v Fang (No 3)

[2017] NSWSC 28

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Fang (No. 3) [2017] NSWSC 28
Hearing dates:	21 November 2016
Date of orders:	21 November 2016
Decision date:	03 February 2017
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Reasons for decision refusing to leave the defence of mental illness to the jury at the trial of the Accused
Catchwords:	CRIMINAL LAW – murder trial - Accused stabbed victim 20 times - whether defence of mental illness should be left to the jury - Accused using methylamphetamine (“Ice”) for about 12 months before killing - Accused had no family history of mental illness - Accused smoked significant quantity of “Ice” before killing - psychiatric evidence that Accused was subject to a defect of reason (a delusion) by reason of a disease of the mind (drug-induced psychosis) at the time of the killing - no other psychiatric condition present at the time - whether there was evidence of “disease of the mind” - held that no evidence of a “disease of the mind” in these circumstances - in any event, condition of Accused was substantially affected by substantial ingestion of “Ice” before the killing - defence of mental illness not left to the jury
Legislation Cited:	Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Attorney General of NSW v X [2013] NSWSC 1392 Bouchard-Lebrun v The Queen [2011] SCC 58; [2011] 3 SCR 575 Butler v State of Western Australia [2010] WASCA 104 Director of Public Prosecutions v Ararvanitidis [2008] VSCA 189 McNamara v State of Western Australia [2013] WASCA 63 R v Ayoub [1984] 2 NSWLR 511 R v Dargin [2008] NSWSC 751 R v De Souza (1997) 41 NSWLR 656 R v Derbin [2000] NSWCCA 361 R v Doolan [2010] NSWSC 147 R v Fang (No. 2) [2016] NSWSC 1784 R v Gagalowicz [2005] NSWCCA 452 R v Gibson [2016] VSC 634 R v Ham [2009] NSWSC 296 R v Jennings [2005] NSWSC 789 R v Kemp [1957] QB 399 R v Konidaris [2014] VSC 89 R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 R v Lukins (1903) 19 WN (NSW) 90 R v M’Naghten (1843) 8 ER 718 R v Martin [2007] VSCA 291; 20 VR 14 R v Martin (No. 1) [2005] VSC 518; 159 A Crim 314 R v Parker [2009] VSCA 19 R v Radford [1985] 42 SASR 266 R v S [1979] 2 NSWLR 1 The King v Porter [1933] HCA 1; 55 CLR 182 R v Sebalj [2003] VSC 181 R v Sebalj [2006] VSCA 106 R v Stones (1955) 56 SR (NSW) 25 Smith v State of Western Australia [2010] WASCA 176 Stapleton v The Queen [1952] HCA 56; 86 CLR 358 The Queen v Falconer [1990] HCA 49; 171 CLR 30 The Queen v Sullivan [1984] AC 156 Woodbridge v R [2010] NSWCCA 185; 208 A Crim R 503
Texts Cited:	Fisse, “Howard’s Criminal Law”, Law Book Co Limited, 5th edn, 1990 Gillies, “Criminal Law”, Law Book Co Limited, 4th edn, 1997 Glanville Williams, “Criminal Law - the General Part”, Stevens, 2nd edn, 1961 Howard and Westmore, “Crime and Mental Health Law in New South Wales”, Lexis Nexis Butterworths, 2nd edn, 2010 Sir Owen Dixon, “A Legacy of Hadfield, M’Naghten and MacLean” (1957) 31 ALJ 255
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

1. JOHNSON J: In November 2016, the Accused, Zhen Fang, stood trial before a jury upon a charge of murdering Ting Huang in 2014.

2. At the conclusion of the evidence, and before closing addresses, the Crown submitted that the defence of mental illness should not be left to the jury. I heard submissions on this topic on 21 November 2016 (T290-301). The Crown (MFI 18) and Senior Counsel for the Accused (MFIs 19 and 20) provided written submissions on this issue, which were supplemented by oral submissions.

3. At the conclusion of submissions, I ruled that I did not propose to leave the defence of mental illness to the jury in the circumstances of the case, and that I would publish my reasons for that decision at a later time (T301).

4. This judgment contains my reasons for that ruling.

5. This ruling considers a number of issues, including the question whether drug-induced psychosis, arising from the voluntary use of the prohibited drug methamphetamine (“Ice”), may (in the absence of any other form of mental illness) give rise to the defence of mental illness for a crime committed whilst a person is subject to that self-induced condition.

6. There was no dispute at the trial that the Accused had stabbed Mr Huang 20 times, thereby inflicting fatal wounds.

7. The evidence indicated that the Accused, who had no family or personal history of mental illness, had used the prohibited drug, methamphetamine, for some 12 months prior to the killing. On the evening of the killing, he and Mr Huang smoked a significant quantity of “Ice” and consumed some alcohol.

8. Three psychiatrists gave evidence that the Accused, at the time of the killing, was subject to a drug-induced psychosis resulting from his use of “Ice” over some months, and also his use of the drug on the night of the killing.

9. The psychiatrists who gave evidence were Dr Yvonne Skinner (for the Crown) and Dr Olav Nielssen and Dr Stephen Allnutt (for the Accused).

10. Following his arrest, the Accused remained in custody. He was not diagnosed with any psychiatric illness and, certainly by the time he was examined in 2015 and 2016 by the three psychiatrists, he did not appear to be suffering from any psychiatric illness.

The Evidence at the Trial

11. An outline of the Crown case appeared in R v Fang (No. 2) [2016] NSWSC 1784 at [3]-[25].

12. It was the Crown case that the Accused (then aged 36 years) stabbed Mr Huang, probably at premises at Guildford occupied by a Crown witness, Jian Feng Weng, on the evening of 6-7 September 2014. Forensic examination of the Guildford premises disclosed multiple locations where Mr Huang’s blood was or had been present, with indications that cleaning of a number of areas had occurred.

13. The Crown alleged that, after the killing, the Accused wrapped the body of Mr Huang in a doona cover which was taken from the Guildford premises. Thereafter, the Crown alleged that the Accused placed the wrapped body of Mr Huang in the boot of Mr Huang’s green Honda sedan. It was alleged that the Accused drove the green Honda some 12 kilometres from Kennedy Street, Guildford to East Street, Lidcombe, where the vehicle was parked in the street next to Rookwood Cemetery.

14. The vehicle was located by police in that location on 21 September 2014, when the body of Mr Huang was located. On the floor of the front seat of the vehicle were two bloodstained gardening gloves which carried the DNA of the Accused as well as Mr Huang.

15. On 10 September 2014, the Accused, accompanied by his wife, Xia He, attended a church where the Accused indicated to the pastor, Zheng Kui Yao, by use of a throat-slitting gesture, what he had done to another person. The Accused told the pastor that he sought forgiveness from God for this act. Before going to the Church, the Accused had told his wife that he had “done something really bad” whilst indicating a throat-cutting gesture.

16. On 11 September 2014, the Accused, his wife and a solicitor attended the Campsie Police Station where he was interviewed by Detective Sergeant Johnston. Put shortly, the Accused told Detective Sergeant Johnston “I have killed someone” and that the man had given him “a lot of Ice”. The Accused provided some information to Detective Sergeant Johnston, whilst indicating that he had a chequered memory of events.

17. The Accused said “That night I was so fearful, I had so much Ice”. He was asked “Do you use a lot of Ice?” and the Accused replied “In the very first beginning I got a habit of smoking marijuana, he knew I smoked a lot of Ice especially when he gave me a lot of Ice to smoke”. The Accused had said that the man whom he had killed, whose name he could not recall, owned a green sedan and that he recalled that the car was taken to an area where there were “a lot of grave yards or cemetery”.

18. The Accused told Ms He, Detective Sergeant Johnston and also Mr Weng that the deceased had threatened to kill the Accused’s family.

19. Because of what the Accused was saying to police and his demeanour, police arranged for him to attend St George Hospital on 11 September 2014. On examination at the hospital, no diagnosis of psychiatric illness was made. Tests were made for drug usage which returned negative results. I will return to this topic.

20. Following the discovery of Mr Huang’s body in the boot of the green Honda on 21 September 2014, police came to interview Mr Weng on 24 September 2014. Mr Weng’s evidence at the trial accorded eventually with what he told the police on that occasion. Put shortly, Mr Weng said that the Accused and Mr Huang would visit his place at Guildford. Mr Weng said that the Accused and Mr Huang had been at his place one evening and had argued, with the Accused being “very aggressive” and “very emotional”. Mr Weng went to bed. The next morning, he woke to find that the Accused and Mr Huang were no longer there. He never saw Mr Huang again. Mr Weng located about eight empty beer bottles in the house, which indicated that the Accused and Mr Huang had consumed alcohol the previous evening.

21. There was no issue that Mr Huang had been stabbed 20 times to various parts of the body, including the throat.

Evidence Concerning the Accused’s Use of “Ice”

22. Ms He gave evidence that the Accused had been using cannabis and “Ice” (by smoking it) for up to 12 months prior to the killing in early September 2014 (T127).

23. The Accused made similar statements to Detective Sergeant Johnston (see [16]-[17] above) as well. The Accused had told Detective Sergeant Johnston that he had used a “lot of Ice” before the killing.

24. The histories provided by the Accused to the forensic psychiatrists who were called to give evidence at the trial were largely consistent with the evidence concerning the Accused’s use of “Ice” for a period of about 12 months prior to the killing. The Accused told Dr Nielssen that he usually took “Ice” with Mr Huang (T229).

25. As mentioned earlier (at [19]), on 11 September 2014, whilst the Accused was at Campsie Police Station speaking to Detective Sergeant Johnston, police formed the view that he may have mental health issues, and arranged for the Accused to be transported by ambulance to St George Hospital for a mental health assessment.

26. Testing was done on the Accused at the hospital which showed a negative result for drug and alcohol use.

27. Given that the killing likely occurred on the evening of 6 September or the early hours of 7 September 2014, the evidence of the psychiatrists was that it was unsurprising that negative results were returned, if the Accused had not used further drugs between the time of the killing and the time of the testing. The evidence was that methylamphetamine has a short half-life and does not linger in the human system, and would have likely been removed from the body after about 48 hours (T165, 174-175, 254).

28. Analysis conducted upon blood taken from the body of Mr Huang at autopsy disclosed a very high, if not lethal, level of methylamphetamine in his system (Exhibit F, paragraph 24; T145). In this respect, the psychiatrists emphasised that the post-mortem examination, and subsequent analysis, were undertaken upon the body of Mr Huang some 14 days after death. It was unclear what effect this post-mortem delay may have had upon the level detected in Mr Huang. What could be said, however, was that Mr Huang had ingested a significant amount of “Ice” before his death. This was significant given that the evidence was that the Accused and Mr Huang had both consumed “Ice” before the killing.

29. The Accused did not give evidence at the trial.

The Psychiatric Evidence Concerning the Accused’s Mental State at the Time of the Killing

30. There was some general evidence from the psychiatrists concerning the nature of “Ice”. Dr Allnutt said that “methylamphetamines are particularly nasty drugs and tend to be more likely to cause a psychosis than many of the other drugs” (T272). Dr Skinner described “Ice” as being “very addictive” (T213).

31. Upon the assumptions arising from the evidence and the histories provided by the Accused, each of the psychiatrists expressed the opinion that, at the time of the killing, the Accused was subject to a drug-induced psychosis (or substance-abuse psychosis) resulting from his use of “Ice”. The evidence was that the drug-induced psychosis was associated with his long-term and regular use of “Ice”, accompanied by his further ingestion of the substance before the killing (T166, 233, 271).

32. Although each psychiatrist expressed the opinion that the Accused could have experienced a drug-induced psychosis arising from his regular use of “Ice”, each of them accepted the critical importance of the final ingestion of “Ice” before the killing to the Accused’s mental state at the time of the stabbing.

33. Dr Skinner was asked by the Crown in evidence-in-chief (T167.26-50):

“Q. You've said that these were caused by the toxic effects of the illicit substance, methylamphetamine. Now, part of the history that you took was that he had consumed a large amount of ice at or around the time that Mr Huang was killed, is that correct?

A. Yes.

Q. I just wanted to ask you this: Is it possible that his ingestion of a large amount of ice at that time in fact caused him to act in the way that he did?

A. It's certainly probably a contributing - major contributing factor. The effects of ice probably caused him to behave as he did.

Q. As I understand it, your view is that he, at the time and in the days leading up to the killing, was suffering from a psychosis which was created by regular use of ice, is that right?

A. Yes.

Q. If, at the time of the killing, he had not been under the influence of ice, is it possible that he would not have suffered from hallucinations and delusions?

A. If he had not been using ice?

Q. Yes?

A. Yes, I don't think he would have been affected by delusions and hallucinations if he had not been using ice. There's no evidence of any problem with delusions or hallucinations or any abnormal mental state when I saw him in June, yes.”

34. Dr Nielssen was asked by the Crown in cross-examination (T247.36-46):

“Q. So, is it at least distinctly possible that this killing would not have taken place but for his heavy ingestion of ice at the time?

A. We could probably say, quite clearly, if he hadn't been an ice user over the previous months, he wouldn't have developed this state of mind and the killing's unlikely to have occurred.

Q. No, no, I am not putting that to you. What I am putting to you is: If he had not ingested this large amount of ice at the time of the killing, it is highly likely that the killing would not have occurred; do you agree with that?

A. Yes, I think that's probably correct, in the sense that it's made his underlying condition worse.”

35. Dr Allnutt was asked by the Crown in cross-examination (T279.48-T280.29):

“Q. Yet, there is evidence certainly in the interview that Detective Johnston had with him - this is transcript 120 line 10 - where he said, ‘That night I was so fearful, I had so much ice’, referring to the night of the killing. To Dr Skinner he said, ‘On that day they both had a lot of ice’. To Dr Nielssen, at 228 line 47, ‘As far as I can remember, is one night I ran into him at a friend's place and we had some ice. We had a big fight’. So, this question, at least on the accounts that he gives of an ingestion or perhaps substantial ingestion of ice at the time, coupled with evidence that they had been drinking alcohol, he had been drinking alcohol during the afternoon, Mr Weng gives evidence of drinking and cleaning up, I think, six or so cans, so maybe he had three. So, I want you to assume, just for the purpose of this, that he was significantly intoxicated at the time of the killing. Now, is it a very real possibility that any delusional thought that he had, as a result of a psychosis before the killing was very significantly exaggerated by the ingestion of both ice and alcohol?

A. I don't think we - the probability of that would have been markedly increased; whether it did or it didn't, I don't know. But the risk of getting an exacerbation in your psychosis when you take ice is very real. I mean, it makes sense that it would just aggravate things and would also contribute to disinhibition.

Q. By ‘disinhibition’, what do you mean?

A. An increased propensity to lose control and not think of consequences and act impulsively.

Q. And that disinhibition would have, in this case, would have resulted from the ingestion of ice plus alcohol?

A. Yes. Disinhibition is, you know - if the disinhibition could have been because of direct effects of the ice and alcohol in a pure intoxication sense, but the disinhibition could also be as a result of an aggravation of psychosis, which then leads a person to be more prone to responding to emotions because of misinterpretations of facts, so it is a combination of both, potentially. I don't know exactly what happened.”

36. The Accused had no history of mental illness. The psychiatrists noted that there was no family history of mental illness (T229-230, 262, 266, 268). Accordingly, the evidence pointed in the direction of the Accused developing a drug-induced psychosis as a result of his use of “Ice” over a number of months, and his use of that drug shortly before the killing.

37. The Accused was taken into custody on 4 October 2014 and has remained in the correctional system since then. Justice Health records indicated that there had been no diagnosis of mental illness, including psychosis, whilst the Accused was in custody, nor had he received any treatment for any psychiatric condition.

38. The Accused told the psychiatrists that he had experienced some hallucinations whilst in custody, but that these had ceased after a few months. The evidence of each of the three psychiatrists was that the Accused did not appear to be suffering from mental illness at the time of their examinations of him in 2015 and 2016 (T167, 232, 267). Dr Skinner examined the Accused on 17 June 2016 (T159). Dr Nielssen examined the Accused (by audio-visual link) on 30 August 2016 (T226). Dr Allnutt examined the Accused on 25 September 2015 (T261).

39. As Dr Nielssen put it, the Accused “recovered spontaneously without treatment” (T233). Dr Allnutt said that the Accused did not suffer from a “persisting psychosis” and that “it was a psychosis that was temporary that has now resolved” (T279).

40. Although there was evidence that “Ice” use may cause actual changes in the brain (Dr Allnutt, T272-273), there was no evidence in the trial that the Accused had experienced any such changes.

41. With varying degrees of emphasis, it was the evidence of the three psychiatrists that the Accused appeared to have been labouring under a defect of reason (a delusion that Mr Huang had threatened to kill the Accused’s family) arising from a suggested disease of the mind (drug-induced psychosis). Again with varying degrees of emphasis, there was evidence that, although the Accused understood the nature and quality of his act in killing Mr Huang, he did not know that it was morally wrong (T166-167, 233-234, 272-274).

42. Dr Skinner said that “psychosis” is “an abnormal mental state in which a person is experiencing things that are not real” (T167). These include “delusions” and “hallucinations”. Dr Skinner described a “delusion” as “a false belief, beliefs that are very firmly held and which the person believes but which are not true” (T167). “Hallucinations” can be in various forms, including hearing voices (T167).

43. Dr Nielssen was asked (T248.9-13):

“Q. So, what is a ‘delusion’?

A. Well, delusion's a fixed false belief held against evidence to the contrary.

Q. So, it is a belief in something that is completely wrong?

A. Yes.”

44. Questions were directed to the psychiatrist witnesses concerning the prospect that Mr Huang had actually threatened to kill the Accused’s family so that this was not, in fact, a delusion. In the course of an answer to the Crown, Dr Allnutt said (T278.47-279.8):

“The concern that I have is I don't know whether or not there was a direct threat made or not. I'm not sure of the nature of that threat; a threat might have been made, but it may have been just an empty threat; as people do in conversation. A serious threat may have been made; we don't know what happened and it may have been nothing to do with that at the time that the offending occurred.

The best I can say to the jury is, based on the information he provided, that is consistent with a diagnosis of a drug induced psychosis, therefore, he was prone to misinterpreting things because that is the nature of psychosis. Whether he did, how he did and what he misinterpreted at the time that the alleged offending occurred is difficult to know with certainty; but it appears that, at least before, he saw this person as a threat.”

45. Very real questions arose about the role of this assumed delusion, and what the Crown argued was the purposeful conduct of the Accused after the killing in allegedly wrapping Mr Huang's body in a doona and driving some 12 kilometres to leave the vehicle (and the body) at Lidcombe. These would have been significant issues for the jury to consider if the defence of mental illness has been left at the trial.

46. However, the question was whether the defence ought be left to the jury at all. The Court approached that question upon the basis that the defence ought be left if there was some evidence to support it so that the defence was fairly open: R v Ayoub [1984] 2 NSWLR 511 at 515.

47. The issue then was whether there was evidence of a defect of reason due to a disease of the mind, so that the defence of mental illness should be left to the jury.

Crown Submissions

48. The Crown submitted that it was a question of law for the Court to determine whether a disease of the mind, in the relevant sense, existed at the time of the killing: The Queen v Falconer [1990] HCA 49; 171 CLR 30 at 49.

49. It was submitted that the Accused bore the onus of proof, on the balance of probabilities, to demonstrate the defence of mental illness. It was necessary for the Accused to establish that, at the time of the act causing death, the Accused was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of his act, or if he did know it, not to know that what he was doing was wrong: R v M’Naghten (1843) 8 ER 718.

50. The Crown submitted that self-induced intoxication cannot be accepted as a “disease of the mind”: The Queen v Falconer at 52; R v Radford [1985] 42 SASR 266 at 274-275.

51. It was submitted that drug-induced psychosis alone is not capable of being a “disease of the mind”. Reliance was placed upon the decision of Bongiorno J in R v Martin (No. 1) [2005] VSC 518; 159 A Crim 314, where it was held that a “disease of the mind” was not demonstrated where there was a drug-induced psychosis only, with no other operative psychiatric condition being present in the accused person.

52. Even if drug-induced psychosis was capable of being a disease of the mind (which the Crown did not accept), it was submitted that the evidence here was that the use of “Ice” shortly before the killing had given rise to any delusion which may have existed.

53. Further, the Crown submitted that even if there was evidence of a disease of the mind, it was not sufficient to establish that the Accused was labouring under a defect of reason from a disease of the mind at the time of the killing. There must be evidence that the defect of reason operated to deprive him in one of the two ways stated in R v M’Naghten (at [49] above).

54. It was submitted that the evidence in this case did not support that proposition. It was said that even if there was evidence that the Accused suffered from a drug-induced psychosis at the time of the killing, the evidence from all of the psychiatrists was that the ingestion before the killing of “Ice”, as well as alcohol, impacted very significantly in exaggerating or exacerbating the effects of that psychosis and any delusions he felt towards Mr Huang.

55. In the circumstances, it was submitted that the particular defect of reason operating at the time came not from the drug-induced psychosis, but from the intoxication which operated to greatly exaggerate any delusion.

56. The Crown submitted that there was no evidence of a “disease of the mind” so that the defence of mental illness should not be left for consideration by the jury.

Submissions for the Accused

57. Mr Bellanto QC, pointed to the evidence of Drs Skinner, Nielssen and Allnutt touching upon the ingredients of the defence of mental illness. He submitted that there was sufficient evidence for these matters to be left to the jury.

58. It was submitted for the Accused that the fact that the suggested disease of the mind was drug-induced psychosis did not stand in the way of the defence being left to the jury. It was said that the medical evidence was to the effect that “Ice” use can cause actual changes in the brain and that, once “Ice” use ceases, it takes time for the brain to reconstitute (T272-273). It was submitted that this evidence provided support for the defence of mental illness being left to the jury.

59. It was submitted for the Accused that it did not matter that the Accused may have used “Ice” before the killing which had some effect on him, in conjunction with the effects of his longer term use of the drug.

60. Accordingly, it was submitted that the defence of mental illness should be left to the jury.

The Defence of Mental Illness

61. At the outset, it is important to observe that the issue of whether the Accused’s condition was or was not within the legal concept of mental illness is not one for psychiatrists to determine.

62. The definition of what constitutes a mental illness is a matter of law: The Queen v Falconer at 49; Woodbridge v R [2010] NSWCCA 185; 208 A Crim R 503 at 530 [86]. What will constitute a “disease of the mind” is a matter to be determined by law, not psychiatry: R v Kemp [1957] QB 399 at 406.

63. The Supreme Court of Canada has observed that, for the purpose of the defence of mental illness, “disease of the mind” is a legal concept with a medical dimension: Bouchard-Lebrun v The Queen [2011] SCC 58; [2011] 3 SCR 575 at 602 [61]. The trial Judge is not bound by the medical evidence since medical experts generally take no account of the policy component of the analysis required by the law: Bouchard-Lebrun v The Queen at 602 [62].

64. Section 38 Mental Health (Forensic Provisions) Act 1990 provides for a special verdict of not guilty on the grounds of mental illness. Section 38 states:

“38    Special verdict

(1)    If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.

(2)    If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person.”

65. Where the defence of mental illness is left to a jury in a criminal trial, the presiding Judge must provide an explanation to the jury in accordance with s.37 Mental Health (Forensic Provisions) Act 1990. If a special verdict of not guilty on the grounds of mental illness is returned by the jury, the Judge will proceed in accordance with s.39 Mental Health (Forensic Provisions) Act 1990, which provides:

“39    Effect of finding and declaration of mental illness

(1)    If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.

(2)    The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person’s release.

(3)    As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order.”

66. When a special verdict of not guilty by reason of mental illness is returned, the accused person is not legally to blame for his or her actions and any order under s.39 is not made by way of punishment, but to protect the community (and its members) and the accused person: Attorney General of NSW v X [2013] NSWSC 1392 at [87]-[91].

67. Section 38 operates to give effect to the common law principles concerning the defence of mental illness: R v S [1979] 2 NSWLR 1 at 38-41; Howard and Westmore, “Crime and Mental Health Law in New South Wales”, Lexis Nexis Butterworths, 2nd edn, 2010, pages 286ff (“Howard and Westmore”). These principles involve application of the M’Naghten Rules as explained and applied in decisions including The King v Porter [1933] HCA 1; 55 CLR 182; Stapleton v The Queen [1952] HCA 56; 86 CLR 358 and The Queen v Falconer.

68. A number of propositions emerge from the authorities concerning the defence of mental illness.

69. Firstly, an accused person is presumed to be sane and possessed of a sufficient degree of reason to know the nature and quality of his act, and that what he is doing is wrong until he proves to the contrary: R v M’Naghten; The King v Porter at 183-184; R v S at 61; Howard and Westmore at 274-275.

70. Secondly, the onus lies upon an accused person to establish the defence of mental illness on the balance of probabilities: The King v Porter at 184; R v S at 41; Howard and Westmore at 272-274.

71. Thirdly, the second rule in R v M’Naghten is the practical foundation for the defence of mental illness - to establish the defence, it must be proved that, at the time of committing the act, the accused person was labouring under a defect of reason, from disease of the mind, so as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know that what he was doing was wrong, in the sense of being morally wrong according to the ordinary principles of reasonable men, not whether he knew it was wrong as being contrary to law: The King v Porter at 189-190; Stapleton v The Queen at 367-368.

72. Fourthly, the third rule in R v M’Naghten related to what is described as a “partial delusion” - if a person acts under a partial delusion and is otherwise sane, he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real - the Court will assess his position upon the basis that the deluded facts were in fact the true position. This part of the M’Naghten Rules has been much criticised as being unworkable: Fisse, “Howard’s Criminal Law”, Law Book Co Limited, 5th edn, 1990, page 462; Gillies, “Criminal Law”, Law Book Co Limited, 4th edn, 1997, page 231. It has been said that this rule is obsolete: Glanville Williams, “Criminal Law - the General Part”, Stevens, 2nd edn, 1961, pages 442, 497-501. Howard and Westmore note (at 308-309) that this “rule on delusions” has been said to be generally regarded as redundant and can safely be ignored as the second M’Naghten Rule (at [71] above) operates to effectively cover the field. At the same time, Howard and Westmore observe (at 309) that this aspect remains part of the common law and continues to be included in a number of statutory codifications of the M’Naghten Rules. I note that this part of the M’Naghten Rules was referred to in R v Lukins (1903) 19 WN (NSW) 90.

73. No submission was made by counsel in this trial with respect to this aspect of the M’Naghten Rules, so it does not arise for further consideration in this judgment.

The M’Naghten Rules and Intoxication

74. There was no issue of intoxication by alcohol or drugs in The King v Porter. Accordingly, the summing up of Dixon J (the classic statement of the principles) did not touch upon issues of a type which arise in this trial.

75. Dixon CJ returned to the defence of mental illness (extra-curially) in a 1957 paper entitled “A Legacy of Hadfield, M’Naghten and MacLean” (1957) 31 ALJ 255. In the course of that paper, his Honour expanded upon the topic, including reference to drunkenness and “other transient states attributed either to the fault or the nature of man”. As will be seen, this statement has been picked up in later decisions. Dixon CJ said at 260 (my emphasis):

“The common law, in most things, brought principle to the solution of the difficulties which facts present. The principle upon which a man who, while he is incapacitated through defect of reason from understanding the nature of his act, does what otherwise would amount to a crime is held by the common law to be guilty of no offence does not seem in itself to suffer from rigidity or complication. It appears simply to be that he should be absolved if his overt acts arise from causes which are independent of his own will, arise from no culpability on his part and, therefore, import no responsibility for his conduct. The reason why it is required that the defect of reason should be ‘from disease of the mind’, in the classic phrase used by Sir Nicholas Tindal [in M’Naghten], seems to me no more than to exclude drunkenness, conditions of intense passion and other transient states attributable either to the fault or to the nature of man. In the advice delivered by Sir Nicholas Tindal no doubt the words ‘disease of mind’ were chosen because it was considered that they had the widest possible meaning. He would hardly have supposed it possible that the expression would be treated as one containing words of the law to be weighed like diamonds. I have taken it to include, as well as all forms of physical or material change or deterioration, every recognizable disorder or derangement of the understanding whether or not its nature, in our present state of knowledge, is capable of explanation or determination.”

76. This passage was referred to by the New South Wales Court of Criminal Appeal in Woodbridge v R at 530-531 [89].

77. In The Queen v Falconer, the High Court considered features of the M’Naghten Rules in the context of an appeal from a conviction for wilful murder in Western Australia. Although the issue in The Queen v Falconer concerned concepts of sane and insane automatism, the decision is of importance in determining the meaning of “disease of the mind” in the common law defence of mental illness. After referring to several United Kingdom cases, Mason CJ, Brennan and McHugh JJ said at 45-46 (footnotes omitted):

“The references to ‘disease of the mind’ in these speeches come, of course, from the definition of insanity in the Rules in M'Naghten's Case [1843] EngR 875; (1843) 10 Cl & F 200, at p 210 (8 ER 718, at p 722); 4 St Tr (N.S.) 847, at p 931:

‘the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong’. (Emphasis added.)”

78. Their Honours then referred, at 49-50, to Dixon CJ’s 1957 paper (referred to at [75] above). Their Honours said (my emphasis):

“In Reg. v. Foy (1960) Qd R 225, Philp J. held that unsoundness of mind comprehended every condition which Hale (Pleas of the Crown) had called ‘dementia’, whether the dementia were complete or partial, permanent or temporary or intermittent and whether it was ‘natural’ or caused by physical disease, concussion, labour or any other cause. It comprehended any disorder or derangement of the understanding and any destruction of the will: see pp 241-243. In his Honour's view, the limitation imported by ‘a defect of reason ... from disease of the mind’ in the M'Naghten Rules did no more than exclude ‘drunkenness, conditions of intense passion and other transient states attributable either to the fault or to the nature of man’, those being the words of Sir Owen Dixon in the paper earlier mentioned adopted judicially by Owen J. in Reg. v. Connolly (1959) 76 WN (NSW) 184, at p 185.”

79. Their Honours then referred to the judgment of Lord Diplock in The Queen v Sullivan [1984] AC 156, extracting the following passage at 50-51 (my emphasis):

“His Lordship's view was approved by Lord Diplock in Reg. v. Sullivan [1984] AC 156, at p 172:

‘I agree with what was said by Devlin J. in Reg. v. Kemp (1957) 1 QB 399, 407, that 'mind' in the M'Naghten Rules is used in the ordinary sense of the mental faculties of reason, memory and understanding. If the effect of a disease is to impair these faculties so severely as to have either of the consequences referred to in the latter part of the rules, it matters not whether the aetiology of the impairment is organic, as in epilepsy, or functional, or whether the impairment itself is permanent or is transient and intermittent, provided that it subsisted at the time of commission of the act. The purpose of the legislation relating to the defence of insanity, ever since its origin in 1800, has been to protect society against recurrence of the dangerous conduct. The duration of a temporary suspension of the mental faculties of reason, memory and understanding, particularly if, as in Mr. Sullivan's case, it is recurrent, cannot on any rational ground be relevant to the application by the courts of the M'Naghten Rules, though it may be relevant to the course adopted by the Secretary of State, to whom the responsibility for how the defendant is to be dealt with passes after the return of the special verdict of 'not guilty by reason of insanity.' To avoid misunderstanding I ought perhaps to add that in expressing my agreement with what was said by Devlin J. in Kemp, where the disease that caused the temporary and intermittent impairment of the mental faculties was arteriosclerosis, I do not regard that learned judge as excluding the possibility of non-insane automatism (for which the proper verdict would be a verdict of 'not guilty') in cases where temporary impairment (not being self-induced by consuming drink or drugs) results from some external physical factor such as a blow on the head causing concussion or the administration of an anaesthetic for therapeutic purposes.’

His Lordship's exclusion of self-induced impairment by drink or drugs mirrors the exclusion of intentional intoxication or stupefaction from the disorders of the mind covered by s.28. Cases of automatism caused in these ways do not fall for present consideration.”

80. Their Honours referred at 52-53 to United Kingdom and Victorian decisions where consideration was given to the concept of disease of the mind (my emphasis):

“In Reg. v. Quick [1973] EWCA Crim 1; (1973) QB 910 a distinction was drawn between a malfunction of the mind caused by an external factor and a malfunction caused by a bodily disorder in the nature of a disease which disturbed the working of the mind, the former type of malfunction not amounting to insanity. The view of Stable J. in Cooper was preferred to the broader view of unsoundness of mind espoused by Philp J. in Foy.

Sholl J. in Reg. v. Carter [1959] VicRp 19; (1959) VR 105 and in Reg. v. Meddings [1966] VicRp 42; (1966) VR 306 excluded from insanity some mental disturbances of a transient non-recurrent kind which are the consequence of external trauma. (That was the view which Stable J. formed of concussion in Cooper.) In Carter, Sholl J. said (at p 110) that it is

‘quite outside the policy of the law to extend the practice of (a qualified verdict resulting in indeterminate detention) to cases where there is no reason to fear any repetition of the crime and no evidence of any brain damage or disease which is likely to give rise to any such repetition.’

Accepting that some words used by Dixon J. in R. v. Porter [1933] HCA 1; (1933) 55 CLR 182 and by Devlin J. in Kemp were wide enough to cover any temporary malfunction or disorder of the mind, he did not think he ought to take the words ‘disease of the mind’ so far. He adhered to these views in Meddings. Sholl J.'s comments, to the extent that they refer to the prospect of recurrence as a discrimen for determining sanity or insanity, echo the speech of Lord Denning in Bratty, at p 412, where his Lordship said:

‘It seems to me that any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal’.”

81. In a passage which is important for present purposes, their Honours referred to and adopted a statement of King CJ in R v Radford at 274-275. In the present case, the Crown relied upon what was said in this regard in both R v Radford and The Queen v Falconer. Their Honours said at 53-54 (my emphasis):

“In his judgment in Radford, King C.J. (at pp 274-275) stated in summary form the effect of the authorities. In our respectful opinion, his Honour's judgment substantially states the common law and we quote the passage at length:

‘if a jury is called upon to decide whether a state of automatism is due to disease of the mind, upon conflicting evidence or conflicting interpretations of the evidence, it must be told what the law understands by that phrase and it should be told that in language which a jury of laymen is likely to grasp. The expression 'disease of the mind' is synonymous, in my opinion, with 'mental illness'. In his charge to the jury in The King v. Porter (at p 188) Dixon J. used the expression 'disease disorder or disturbance'. But the words 'disorder' and 'disturbance' must take their colour from the word 'disease' and refer to disorder and disturbance of the mental faculties which can be characterized as mental illness. In one sense automatism must always involve some disorder or disturbance of the mental faculties, but I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as disease of the mind as that expression is used in the M'Naghten rules. As Lord Denning pointed out in Bratty v. Attorney-General for Northern Ireland (at p 412), the major mental diseases or psychoses such as schizophrenia are clearly diseases of the mind. Moreover, physical diseases, such as psychomotor epilepsy, (Bratty v. Attorney-General for Northern Ireland) and arteriosclerosis (Reg. v. Kemp), when they affect the soundness of the mental faculties should be regarded as diseases of the mind. Lord Denning considered that any 'mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind': Bratty's case (at p 412). Disease of the mind is to be distinguished from 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self control, and impulsiveness': The King v. Porter (at pp 188- 189). The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called 'defect of reason' in the M'Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli. In my opinion the notion of 'disease of the mind' should be explained to the jury in some such terms.’

One may cavil at the description of a mere physical condition such as arteriosclerosis, albeit one which produces a ‘mental illness’, as itself a disease of the mind. But the dichotomy between mental illness and a healthy mind is correctly drawn. However, we would think it necessary that a temporary mental disorder or disturbance must not be prone to recur if it is to avoid classification as a disease of the mind. That is because a malfunction of the mind which is prone to recur reveals an underlying pathological infirmity. Subject to that qualification, the law is as stated by King C.J. in the passage cited. So stated, the law in Australia may not correspond precisely with the speech of Lord Diplock in Sullivan.”

82. In a separate judgment, Toohey J observed, at 76, that a person is not criminally responsible for an act or omission which occurs independently of the will, adopting what was said by King CJ in R v Radford at 276.

83. Gaudron J considered the concept of disease of the mind at 84-85, referring as well to Dixon CJ’s 1957 paper (my emphasis):

“Despite the differences directed by the language of the Code, that distinction is based on the same considerations as those that distinguish between the common law concept of a sane mind and the concept of a mind that has a defect of reason due to a disease of the mind. See Hitchens v. The Queen [1959] TASStRp 25; (1959) Tas SR 209, at pp 249-250; Hitchens v. The Queen (No.2), at p 49; Williams v. The Queen, at p 106. The distinction has sometimes been expressed in terms of mental states having an external cause and those that proceed from internal causes: Reg. v. Quick [1973] EWCA Crim 1; (1973) QB 910, at p 922. Sometimes the distinction has been expressed by reference to the transient or recurring nature of the particular mental state: Bratty, at p 412; Reg. v. Carter [1959] VicRp 19; (1959) VR 105, at p 110; Reg. v. Meddings [1966] VicRp 42; (1966) VR 306, at pp 309-310. In general terms, a recurring state which involves some abnormality will indicate a mind that is diseased or infirm, but the fundamental distinction is necessarily between those mental states which, although resulting in abnormal behaviour, are or may be experienced by normal persons (as, for example and relevant to the issue of involuntariness, a state of mind resulting from a blow to the head) and those which are never experienced by or encountered in normal persons. That point was made, although in a quite different context, by Dixon J. in Porter, at p 188, where his Honour observed that the diseased mind is to be distinguished from the ‘(m)ere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control, and impulsiveness’. See also the reference by Sir Owen Dixon in his paper ‘A Legacy of Hadfield, M'Naghten and Maclean’, (1957) 31 Australian Law Journal 255, at p 260, to ‘transient states attributable either to the fault or to the nature of man’. And in Radford, King C.J. (at p 274) distinguished between ‘an underlying pathological infirmity of the mind, ... which can be properly termed mental illness’ and ‘the reaction of a healthy mind to extraordinary external stimuli’.”

84. In R v De Souza (1997) 41 NSWLR 656, the Court of Criminal Appeal considered the question whether the effects of self-administered anabolic steroid use on brain cells constituted an “injury” for the purpose of s.23A Crimes Act 1900 (as it stood prior to amendment in 1997 to remove reliance on “self-induced intoxication”). Powell JA (Studdert and Levine JJ agreeing), at 678-679, referred to The Queen v Falconer, in considering the meaning of the word “disease” (my emphasis):

“While one might be accustomed to associate the word ‘disease’ with unhealthy conditions of the body brought about by infection, both as a matter of ordinary English usage, and as a matter of medical terminology, the word extends to include a condition of the body, or of some part, or organ, of the body, in which its functions are disturbed or deranged, which meaning has been applied to the word ‘disease’ in at least some legal contexts: see, eg, R v Porter (1933) 55 CLR 182 at 188-199; Re M (1982) 59 FLR 102; GPG v ACF [1983] 1 NSWLR 54; DW v JMW [1983] 1 NSWLR 61; GNM v ER [1983] 1 NSWLR 144. It should, however, be noted that this view of ‘disease’ is modified, when one is dealing with questions of criminal responsibility, so as to exclude effects which are more or less transitory, or are due to a temporary malfunction (see, eg, R v Carter [1959] VR 105 at 110, per Sholl J; R v Falconer (1990) 171 CLR 30), or are self-induced, as, for example, as the result of the consumption of alcohol or the use of drugs.”

85. It may be seen from the cases that a distinction has been drawn in circumstances where an accused person’s condition is the product of self-induced intoxication by alcohol or drugs. The defence of mental illness does not extend to such circumstances. The Crown relies upon this line of authority, including the statements in The Queen v Falconer which adopted and applied the judgment of King CJ in R v Radford.

Some New South Wales Decisions

86. A number of decisions in New South Wales have considered the approach to be taken when a killing occurs with the accused person suffering from an underlying psychiatric condition (such as schizophrenia) while being affected at the same time by alcohol or drug use, including drug-induced psychosis. This was the scenario in R v Derbin [2000] NSWCCA 361, where Mason P (Levine and Greg James JJ agreeing) expressed the principles to be applied in the following way:

“70    In R v Stones (1955) 56 SR(NSW) 25, the Court (Street CJ, Roper CJ in Eq and Herron J) said (at 29) that:

… insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged. The law takes no account of the cause of insanity. If actual insanity, permanent or temporary, in fact supervenes as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause.

71    Their Honours cited R v Davis (1881) 14 Cox CC 563 and Director of Public Prosecutions v Beard [1920] AC 479 at 500-1.

72    It does not matter to the criminal law whether the disease of the mind which produced a state of mind attracting the defence of mental illness is curable or incurable, temporary or permanent (The King v Porter (1933) 55 CLR 812 at 187-8, R v Kemp [1957] 1 QB 399 at 407, R v Quick [1973] QB 910 at 918).

73    These principles are in no way inconsistent with authoritative statements such as that ‘disease in the M’Naghten formula is not used … with reference to a temporary inefficient working of the mind due only to such outside agencies as alcohol or drugs’ (R v Carter [1959] VR 105 at 110 per Sholl J, emphasis added). In R v Meddings [1966] VR 306, Sholl J recognised that ‘mere transient causes such as alcohol alone … do not produce insanity within the meaning of the M’Naghten Rules’ (emphasis added). But he held that, if a person has a disease of the mind predisposing to a particular condition, then for the purpose of the defence it did not matter whether the ‘trigger’ was alcohol or a set of surrounding circumstances.”

87. There is no reference in R v Derbin to The Queen v Falconer or R v Radford. There may be some tension between statements in those cases and R v Stones (1955) 56 SR (NSW) 25, cited in R v Derbin at [70]. That said, the critical point in R v Derbin concerns the need for an underlying psychiatric condition apart from drug or alcohol use.

88. The Court of Criminal Appeal in R v Derbin substituted a verdict of not guilty, by reason of mental illness. An important aspect was the appellant’s pre-existing condition of schizophrenia which was exacerbated by drug and alcohol use (at [6], [75], [76](a), (d)).

89. The decision in R v Derbin was applied in R v Dargin [2008] NSWSC 751 where the accused person was suffering from an underlying psychiatric illness (schizophrenia) as well as the effects of drug use. A verdict of not guilty by reason of mental illness was returned.

90. The important feature in cases such as R v Derbin and R v Dargin is that what is required is a pre-existing “disease of the mind” (such as schizophrenia). That condition may be triggered by drug or alcohol use, but those features do not give rise to a “disease of the mind” unless there is also a psychiatric illness: Howard and Westmore, pages 295, 411-416.

91. There have been cases where the issues were not fully contested and the Court was not taken to relevant authorities. In R v Jennings [2005] NSWSC 789, the Crown accepted that the appropriate verdict was not guilty of murder on the grounds of mental illness in a case where the accused person was under the influence of “Ice” at the time of the offence. The decision in R v Derbin was not referred to in that case, nor were those in The Queen v Falconer and R v Radford.

92. In R v Ham [2009] NSWSC 296, there was evidence that the accused person had a history of schizophrenia as well as being affected by drugs at the time of the killing ([123]). Importantly, Hall J approached the case upon a basis which is consistent with the approach in R v Derbin (although his Honour was not taken to that case). Hall J said at [158]-[160]:

“158    The voluntary ingestion of prohibited drugs including amphetamines in itself provides no excuse or justification for unlawful or criminal conduct which is carried out under the influence of such drugs.

159    In the present case, it has been necessary to give close consideration to the evidence that establishes the existence and the effects of any underlying mental illness in the accused at the time he killed Ms Baillie and to separately evaluate the effects on him of having ingested methylamphetamines.

160    It is clear on the evidence that the accused was affected by methylamphetamines in the hours before he stabbed the deceased. It is equally clear that, over several years, he had suffered from schizophrenia and its effects.”

93. In R v Doolan [2010] NSWSC 147, an accused person was found not guilty by reason of mental illness on a charge of murder. Consistent with the principles in R v Derbin, Hall J said in R v Doolan at [32]:

“The question as to whether the accused suffered from a drug induced psychosis or whether she had an underlying genetic or other condition that was precipitated or aggravated by a drug psychosis is a fundamental one in determining whether or not the accused has the basis for a defence in accordance with the M’Naghten Rules.”

94. I am satisfied that authority in New South Wales supports the position that a drug-induced psychosis (or intoxication by alcohol or drugs) does not constitute a “disease of the mind” unless there is also a separate psychiatric illness which is operative at the time of the act giving rise to the charge.

95. As will be seen next, this position is supported strongly by decisions from the State of Victoria.

Victorian Decisions Concerning Drug-Induced Psychosis

96. The Crown submission in this case is supported by Victorian authority concerning the meaning of “disease of the mind” in the context of drug-induced psychosis. The meaning of the term “mental impairment” in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) has been considered, with the common law principles with respect to the defence of mental illness being applied: R v Sebalj [2003] VSC 181.

97. In R v Martin (No. 1), Bongiorno J concluded that the term “mental impairment”, which was synonymous with the term “disease of the mind”, did not include cannabis-induced psychosis so that the accused person was not entitled to an acquittal on the ground of mental impairment. His Honour referred to the decisions in The Queen v Falconer and R v Radford and said at 317 [15]-[19]:

“15.   The question of law which I must answer is whether cannabis-induced psychosis, as described by Dr Sundram and as applying to this accused in this case, is a temporary disorder or disturbance of an otherwise healthy mind caused by external factors such that it cannot be properly regarded as a disease of the mind, as that term is used in the common law.

16.   The common law was expressed by the judges in Falconer's case in the same passage where they accepted (with one minor qualification irrelevant for present purposes) the statement of King CJ’s in Radford. Specifically they accepted King, CJ’s statement that:

‘…I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as disease of the mind as that expression is used in the M'Naghten Rules’ [R v Falconer (1990) 171 CLR 30 at 53].

17.   Dr Sundram agrees that the accused is not psychotic when he is not taking marijuana and as an example of that he said that at the time he examined him he was showing no psychotic symptoms at all.

18.   In the context of this case at least, and on the evidence of Dr Sundram as to this particular accused's condition, although able to be described as a psychosis, Mr Martin's condition falls within the exclusion that King CJ referred to in Radford and which was accepted by the High Court in Falconer. It was a temporary disorder or disturbance of an otherwise healthy mind caused by external factors, that is to say caused by the ingestion of cannabis and no other cause.

19.   This ruling may be affected ultimately by the evidence yet to be given on the trial. Even if I were to rule now that cannabis-induced psychosis, as described in this case, was a disease of the mind for the purposes of the defence of mental impairment, that ruling would be subject to possible revision in light of the facts as they emerge on trial. The ultimate question of law which must be answered will be whether there is any evidence capable of supporting an acquittal by the jury on the ground of mental impairment.”

98. Bongiorno J concluded at 318 [21]:

“Accordingly, I rule that the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 has not, so far as the defence of mental impairment is concerned, altered the common law and that the term mental impairment is synonymous with the term disease of the mind. In this case, on the evidence which I have heard, the condition described by Dr Sundram as cannabis-induced psychosis is not a disease of the mind which would be such as to entitle the accused to an acquittal on the ground of mental impairment. The accused will not be entitled to raise the defence of mental impairment upon his trial.”

99. Courts in Victoria have held consistently that a drug-induced psychosis (unaccompanied by a separate psychiatric illness) does not constitute a disease of the mind as understood in the common law: R v Sebalj [2006] VSCA 106 at [12]; R v Gibson [2016] VSC 634 at [7].

100. The decision in R v Martin (No. 1) was applied in R v Konidaris [2014] VSC 89, where a question arose as to whether the person charged with murder was subject to a drug-induced psychosis or a manifestation of an underlying schizophrenic illness. T Forrest J said at [28]-[31] (my emphasis):

“28.   I have explained the relevant operation of the Act earlier in these reasons. There is unanimity amongst the three psychiatrists that Mr Konidaris did not know that shooting his grandparents and burning their house was wrongful. Whist he knew the nature and quality of his conduct he was unable to reason with a moderate degree of sense and composure about whether that conduct, as perceived by reasonable people, was wrong.

29.   Prima facie this unanimous evidence would appear to satisfy s 20(1)(b) of the Act and establish the defence of mental impairment. I have observed earlier in these reasons that there was a critical disagreement between the psychiatrists as to the underlying cause of the accused’s mental state at the relevant time. As I have explained, if the underlying cause of this mental state was paranoid schizophrenia then this is a disease of the mind and thus a mental impairment within the meaning of s 20 (see R v Radford; R v Falconer; R v Sebalj). If the underlying cause of this mental state was a drug-induced psychosis then it will not amount to a disease of the mind or a s 20 mental impairment. In Radford, King CJ said:

…I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as a disease of the mind as that expression is not in the M’Naghten Rules.

30.   This statement was cited in Falconer, where the High Court set out the common law defence of insanity. In 1997, the Act codified the common law defence of insanity in this State. Single judges of this Court have held that the Act has not altered the common law and that the term ‘metal impairment’ is synonymous with the term ‘disease of the mind’. (See R v Sebalj; R v Martin; R v R). I agree with those pronouncements.

31.   I have observed that all psychiatric opinion is that the applicant did not know his conduct was wrongful in the relevant sense. None say that he did not appreciate the nature and quality of his act. Thus, this is a defence that is said by the parties to have arisen under s 20(1)(b) of the Act.

32.   It follows from the above, that before I can enter a verdict of not guilty under s 21(4), I must be positively satisfied of the following propositions:

(a)    that the accused did not know that his conduct was wrong in that he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by a reasonable person, was wrong; and

(b)    that the aetiology or cause of this lack of knowledge was an underlying mental illness or disease of the mind and not a drug-induced psychosis.”

101. His Honour was positively satisfied that, at the relevant time, the accused person suffered from paranoid schizophrenia and concluded that his persistence of delusional beliefs and negative symptoms argued strongly in favour of an underlying schizophrenic illness, and equally strongly against a differential diagnosis of drug-induced psychosis (at [33]-[34]).

102. Application of the Victorian approach to the present case was strongly supportive of the Crown submission that the defence of mental illness should not be left to the jury in this case.

Canadian authority Concerning Drug-Induced Psychosis

103. Reference was made earlier to the decision of the Supreme Court of Canada in Bouchard-Lebrun v The Queen. The decision concerned the Canadian statutory defence of mental illness (s.16 Criminal Code) in the context of a person subject to drug-induced psychosis. Le Bel J (for the Court) said at 611-612 [85]-[86] (my emphasis):

“[85] In this context, I conclude that the appellant was not suffering from a ‘mental disorder’ for the purposes of s. 16 Cr. C. at the time he committed the assault. He has failed to rebut the presumption that his toxic psychosis was a ‘self‑induced stat[e] caused by alcohol or drugs’ in accordance with the definition in Cooper. A malfunctioning of the mind that results exclusively from self‑induced intoxication cannot be considered a disease of the mind in the legal sense, since it is not a product of the individual’s inherent psychological makeup. This is true even though medical science may tend to consider such conditions to be diseases of the mind. In circumstances like those of the case at bar, toxic psychosis seems to be nothing more than a symptom, albeit an extreme one, of the accused person’s state of self‑induced intoxication. Such a state cannot justify exempting an accused from criminal responsibility under s. 16 Cr. C.

[86] This conclusion takes account of the policy considerations referred to by Dickson J. in Cooper. In light of Dr. Faucher’s expert assessment of the frequency of toxic psychosis in circumstances analogous to the ones in the instant case, the appellant’s position, if adopted, would affect the integrity of the criminal justice system in ways that would be difficult to accept. If everyone who committed a violent offence while suffering from toxic psychosis were to be found not criminally responsible on account of mental disorder regardless of the origin or cause of the psychosis, the scope of the defence provided for in s. 16 Cr. C. would become much broader than Parliament intended. These considerations reinforce the conclusion that the toxic psychosis of the appellant in this case is covered by Cooper’s exclusion of ‘self‑induced states caused by alcohol or drugs’.”

104. These sentiments have traction in the context of the present case - the underlying policy of the common law defence of mental illness would be distorted, if not defeated, if a person in the position of the Accused was able to secure his acquittal on a charge of murder because of the passing effects of his use of a prohibited drug which was not the product of his inherent psychological makeup.

Returning to the Present Case

105. The M’Naghten Rules were fashioned in an era when the use and abuse of drugs was limited. Excessive consumption of alcohol was a well-known phenomenon and the later cases have sought to deal with that form of conduct in the context of the classification of a “disease of the mind” for the purpose of the M’Naghten Rules. The position articulated by Dixon CJ in his 1957 paper (see [75] above) has been referred to in that respect. The High Court considered this topic further in The Queen v Falconer, applying what had been said by King CJ in R v Radford.

106. In the latter part of the 20th Century and the early years of the 21st Century, a wide variety of powerful prohibited drugs are available in the community and are used and abused with a variety of adverse outcomes. The drug methamphetamine or “Ice” is acknowledged widely as a contemporary scourge in the community. Individuals such as the Accused make a choice as to whether they use illegal drugs such as “Ice”. It might be inferred that users of “Ice” are likely to have some awareness of its severe effects. The ongoing use of “Ice” provides for a compounding scenario where drug-induced psychosis may be manifested, frequently with violent consequences.

107. It is important to keep in mind the policy which lies behind the defence of mental illness in the criminal law. In truth, the defence operates within relatively narrow parameters. The accused person must demonstrate on the balance of probabilities that, at the relevant time, he or she was subject to a defect of reason due to a disease of the mind. The New South Wales and Victorian cases, to which reference has been made, confirm the appropriate response in principle to cases of drug-induced psychosis unaccompanied by other psychiatric illness.

108. The policy and content of the criminal law in New South Wales has, for some years, confined the ability of an accused person to rely upon self-induced intoxication by alcohol or a drug. In determining whether a person charged with murder was subject to substantial impairment by way of abnormality of the mind, self-induced intoxication must be put to one side entirely: s.23A(3) Crimes Act 1900 (as amended in 1997). Further, the capacity of an accused person to rely upon self-induced intoxication at trial is confined by the provisions in Part 11A Crimes Act 1900 (ss.428A-428I).

109. The evidence in the present case indicated that the Accused had no family history or personal history of mental illness. The medical evidence pointed to such problems as he had as arising from his use of “Ice”. This is not a case where there is evidence of an underlying existing mental illness in the Accused, which was triggered or exacerbated by his use of “Ice”. It may be distinguished from a number of cases in Victoria and New South Wales, to which reference has been made, where there was a pre-existing mental illness which was accompanied by drug use leading to a drug-induced psychosis.

110. The evidence indicated that any drug-induced psychosis, from which the Accused was suffering at the time of the killing, was the product of his use of “Ice” and that the Accused did not otherwise suffer from a disease of the mind. The Accused’s condition resolved spontaneously after he ceased using the drug. This was a temporary and not persisting state which flowed solely from the Accused’s use of prohibited drugs. The Accused has not adduced evidence that he was suffering from a “disease of the mind” for the purpose of the common law test of mental illness.

111. Even if there was doubt concerning this conclusion, the evidence here indicated that the ingestion of a significant quantity of “Ice” shortly before the killing played a highly significant role in the Accused’s state of mind at the time of the killing. Even if his condition prior to that ingestion could be characterised as a “disease of the mind” (which I do not accept), what affected the Accused significantly was the actual use of “Ice” before the killing. But for the use of “Ice” before the killing, the medical evidence suggests that the Accused would not have experienced a drug-induced psychosis at the time when the killing occurred. The principles in the authorities which have been mentioned operate to exclude reliance upon the defence of mental illness in these circumstances.

112. Accordingly, I was satisfied that the appropriate course was to decline to leave the defence of mental illness to the jury.

Relevance of Drug-Induced Psychosis on Sentence

113. The Accused was found guilty of murder at trial. At the sentencing phase, it will be necessary to determine the approach to be taken to a murder committed by a person under the influence of a drug-induced psychosis. Attention will be given to the special rule concerning self-induced intoxication contained in s.21A(5AA) Crimes (Sentencing Procedure) Act 1999 as explained in decisions such as R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 at 59 [220].

114. Further, there are a number of decisions where the relevance of drug-induced psychosis on sentence has been considered: R v Gagalowicz [2005] NSWCCA 452 at [36]-[38]; R v Martin [2007] VSCA 291; 20 VR 14 at 18-22 [15]-[30]; Director of Public Prosecutions v Ararvanitidis [2008] VSCA 189 at [24]-[34]; R v Parker [2009] VSCA 19 at [33]-[41]; Butler v State of Western Australia [2010] WASCA 104 at [8], [54]-[75]; Smith v State of Western Australia [2010] WASCA 176 at [69]; McNamara v State of Western Australia [2013] WASCA 63 at [98] and R Gibson at [6]-[9], [95]-[107].

115. The approach to sentence in this case will require consideration to be given to the principles expressed in these authorities.

Conclusion

116. On the evidence adduced in the Crown and defence cases at trial, I was not persuaded that there was evidence that warranted the defence of mental illness being left to the jury.

117. It was for these reasons that I determined on 21 November 2016 not to leave to the jury the defence of mental illness.

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Decision last updated: 03 February 2017