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R v Flame

R v Flame

Case [2020] NSWSC 1013 5 August 2020

Mental Illness

Substantial Impairment

Excessive Self-Defence

Judicial Review

Constitutional Validity

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Flame [2020] NSWSC 1013
Hearing dates: 12 June 2020
Decision date: 05 August 2020
Jurisdiction: Common Law
Before: Button J
Decision:
Application for trial by judge alone refused.

Catchwords:
CRIMINAL LAW – murder – application by accused for trial by judge alone – opposed by Crown – foreshadowed defences of mental illness, substantial impairment and excessive self-defence – whether substantial impairment will require practical consideration by tribunal of fact – COVID 19 pandemic – pre-trial publicity – difficulties in judicial officer determining central normative element of substantial impairment

Legislation Cited:
Crimes Act 1900 (NSW), s 23A
Criminal Procedure Act 1986 (NSW), ss 132, 365
Covid-19 Legislation Amendment (Emergency Measures) Act (2020) (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW), s 38(1)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:
R v Cadman [2019] NSWSC 634
Fang v R [2018] NSWCCA 210
R v GokhanEyuboglu [2019] NSWSC 181
R v Hutchison & Wilkinson [2018] NSWSC 1759
R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226
R v M'Naghten (1843) 8 ER 718

Category: Procedural and other rulings
Parties: Regina (Crown)
Mathew Flame (Accused)
Representation:
Counsel:
L Lungo (Crown)
J Stratton SC (Accused)
Solicitors:
Solicitors for Public Prosecutions (Crown)
Archbold & Co Legal (Accused)

File Number(s): 2018/339226
Publication restriction: Not to be placed on Caselaw before the conclusion of trial by jury

Judgment

Introduction

On 12 June 2020, I conducted a hearing with regard to an application made by Mr Mathew Flame (the accused) for his impending trial on a count of murder to be conducted without a jury and by judge alone. The application was brought pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) (“the Act”). Reliance was also placed on the newly inserted s 365 of the same Act.
The application was opposed by the Crown. Accordingly, the question for me is whether, in accordance with s 132(4) of the Act, it would be “in the interests of justice” for me so to order, perhaps informed by the readiness of Parliament to insert the new section to which I have referred.
For the following reasons, I reject the application. The trial will accordingly proceed with a jury later this year. For that reason, this judgment will not be promulgated until after the verdict of the jury is delivered.

Sketch of background

The following summary is based upon the evidence placed before me at the hearing of the application. That consisted of the Crown case statement (“CCS”), and an affidavit of the solicitor for the accused. The latter document had annexed to it two psychiatric reports: the first of Dr Eagle of 10 September 2019, qualified for the accused, and the second of Professor Greenberg of 28 January 2020, qualified for the Crown.

Summary of CCS

The alleged facts, seemingly undisputed, of the matter are as follows. The accused and Mr Liam Anderson (the deceased) were both young men, and…

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.

Continue reading R v Flame

Details

AGLC: R v Flame [2020] NSWSC 1013
Case: [2020] NSWSC 1013
Decision Date: 05 August 2020

CaseChat Overview and Summary

The case of R v Flame involved the accused who was facing charges of murder. The accused applied for a trial by judge alone, which was opposed by the Crown. The defence anticipated presenting several defences, including mental illness, substantial impairment, and excessive self-defence. The court was required to determine whether the substantial impairment defence necessitated a practical consideration by the tribunal of fact. Additionally, the court considered the impact of the COVID-19 pandemic and pre-trial publicity on the accused's right to a fair trial. The primary legal issue was whether the substantial impairment defence warranted a jury trial, given the difficulties a judicial officer might face in determining the normative element of substantial impairment.

The court examined the legal framework surrounding the defence of substantial impairment and its implications for the trial process. It noted that while the defence of mental illness is typically heard by a judge alone, the defence of substantial impairment was a more complex matter. The court acknowledged that the normative element of substantial impairment required consideration by a jury, as it involved assessing the accused's ability to conform their conduct to the standard of reasonable conduct. However, the court also recognised the practical challenges posed by the COVID-19 pandemic and pre-trial publicity, which could affect the accused's right to a fair trial. Ultimately, the court determined that the substantial impairment defence did necessitate a jury trial to ensure a fair assessment of the accused's mental state at the time of the alleged offence.

In its reasoning, the court concluded that the accused's right to a fair trial, including the right to have the normative element of substantial impairment assessed by a jury, outweighed the practical difficulties posed by the pandemic and pre-trial publicity. The court held that the accused was entitled to a trial by jury to determine the substantial impairment defence. The court also noted that the other defences, including mental illness and excessive self-defence, could be considered by the judge in the context of the jury trial. The court emphasised the importance of ensuring that the accused's rights were protected, even in the face of challenging circumstances.

The court's final order was that the accused's application for a trial by judge alone was dismissed. The case would proceed to a trial by jury to determine the substantial impairment defence, with the other defences to be considered by the judge in the context of the jury trial. The court recognised the need to balance the accused's rights with the practical challenges presented by the pandemic and pre-trial publicity, but ultimately concluded that the right to a fair trial necessitated a jury determination of the substantial impairment defence.

Orders