R v Flame (No 2) - [2020] NSWSC 1602

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Flame (No 2) [2020] NSWSC 1602
Hearing dates: 29 October 2020
Decision date: 29 October 2020
Jurisdiction: Common Law
Before: Button J
Decision:
Complete self-defence not left to the jury.
Excessive self-defence left to the jury.

Catchwords:
CRIMINAL LAW – murder – trial by jury - whether complete self-defence or excessive self-defence should be left to the jury – whether the jury should be asked to reflect upon the reasonableness of response when believing that one is defending oneself against a “demon” – complete self-defence not sought to be relied upon by defence counsel – neither counsel submits that complete self-defence should be left – Crown submits that excessive self-defence should also not be left – complete self-defence not left, but excessive self-defence left to the jury

Legislation Cited:
Crimes Act1900 (NSW), ss 23A, 61HE, 418, 428D
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases Cited:
Abdallah v R [2016] NSWCCA 34
Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28
R v Katarzynski [2002] NSWSC 613

Category: Procedural and other rulings
Parties: Regina
Mathew Flame
Representation:
Counsel:
G Christofi (Crown)
J Stratton SC & T O’Rourke (Accused)
Solicitors:
Solicitors for Public Prosecutions (Crown)
Archbold Gittani Lawyers (Accused)

File Number(s): 2018/339226

REVISED EX TEMPORE Judgment

Introduction

The time has come in the trial at which the vexed question of self-defence, and whether it should be left to the jury in any form, needs to be conclusively determined.
I say “vexed”, because the extreme circumstances of this trial give rise to some very challenging questions about the objective intention of Parliament with regard to s 418 and following of the Crimes Act1900 (NSW). In particular, the extremity of this case is, to state the facts very succinctly, that it is alleged that the accused, believing that his “best mate” was either a demon or demonic, killed him, tragically, after having ingested a large quantity of MDMA.

Background

The primary issue in this trial is whether the defence of mental illness should succeed. To state the issue very primitively, the question is, "was the accused suffering from a disease of mind at that time, that led him to be in a state of psychosis, or was it simply the drugs that he had taken?" Even so, the parties have been helping me to explain to the jury as we go, orally and in writing, all of the other legal pathways that could open up during their deliberations.

Self-defence?

The question is whether tomorrow I should leave either what I call “complete self-defence”, in other words, the possibility of success of the accused with regard to both “legs” of the defence, thereby leading to a complete acquittal; or leave what I call “excessive self-defence”, that is, the possibility of success of the accused with regard to the first leg but the failure of the accused with regard to the second leg, thereby leading to a…

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 (No 2)

Details

AGLC: R v Flame (No 2) [2020] NSWSC 1602
Case: [2020] NSWSC 1602
Decision Date: 29 October 2020

CaseChat Overview and Summary

The case of R v Flame (No 2) involved a criminal trial where the defendant, Flame, was accused of murder. The case was heard in the Supreme Court. The primary dispute centred on whether the principles of self-defence, both complete and excessive, should be left to the jury's consideration, especially in the context of the defendant's state of mind and the perceived threat he was defending against. Defence counsel did not seek to rely on complete self-defence, while both parties agreed that excessive self-defence should not be left to the jury. The Crown, however, argued that the jury should also not be permitted to consider excessive self-defence.

The court was required to decide whether excessive self-defence should be left to the jury's consideration, especially in circumstances where the defendant believed they were defending themselves against a perceived supernatural threat, described as a "demon". The central issue was whether the jury should be asked to reflect upon the reasonableness of the defendant's response when they genuinely believed themselves to be in such a dire situation. The court had to balance the principles of self-defence against the gravity of the crime of murder.

The court determined that complete self-defence was not left to the jury as it was not sought to be relied upon by defence counsel. However, the court held that the principles of excessive self-defence should be left to the jury. The court found that while the defendant's belief in facing a "demon" was a factor, the jury could still assess the reasonableness of the response within the legal framework of self-defence. The court recognised that the jury could consider the defendant's state of mind and the perceived threat in evaluating the defence of excessive self-defence.

The final orders of the court included leaving the defence of excessive self-defence to the jury while not allowing the defence of complete self-defence. The jury was directed to consider the defendant's actions in the context of self-defence, including the perceived threat and the defendant's state of mind, in determining whether the response was reasonable.

Orders