R v Flame (No 3)
[2020] NSWSC 1604
•26 October 2020
Supreme Court
New South Wales
Medium Neutral Citation: R v Flame (No 3) [2020] NSWSC 1604 Hearing dates: 26 October 2020 Decision date: 26 October 2020 Jurisdiction: Common Law Before: Button J Decision: Evidence of drug use in custody not excluded
Catchwords: CRIMINAL LAW – murder – trial by jury – whether evidence of drug use in custody by the accused after killing should be left to the jury – conceded by experts that the accused is schizophrenic – defence counsel submits evidence of drug use may be used for a credibility purpose and is prejudicial – relevance of the evidence to the consideration of the accused’s state of mind at the time of the killing – evidence not excluded
Legislation Cited: Evidence Act 1995 (NSW), s 137
Category: Procedural and other rulings Parties: Regina (Crown)
Mathew Flame (Accused)Representation: Counsel:
Solicitors:
G Christofi (Crown)
J Stratton SC & T O’Rourke (Accused)
Solicitor for Public Prosecutions (Crown)
Archbold Gittani Lawyers (Accused)
File Number(s): 2018/339226
EX TEMPORE Judgment – REVISED
Background
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In this trial there is no dispute that on 4 November 2018 the accused killed the deceased, his “best mate”. And as I said to the jury on Friday, there seems to be no dispute that at the time the accused believed that he was in danger from the deceased, indeed that the deceased was a demon.
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It has been explained by senior counsel for the accused that the primary issue in the trial is the question of mental illness, and in particular whether the accused at the time suffered from a disease of mind. That needs to be proven by the accused on balance.
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The thesis for the Crown, speaking very primitively, is that there was nothing wrong with his mind at the time; it was the effect of a mixture of alcohol, cannabis, and a large quantity of MDMA. The Crown in particular points to the fact that, for a reasonably extended period after the killing, the accused, once the drugs “wore off” to use informal language, seemed to be mentally “alright”, again to use the term of a layperson.
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An important part of the defence thesis, on the other hand, is that sadly the accused, it seems, is now severely mentally ill and, indeed, schizophrenic. And an important part of the thesis of the defence experts is that that subsequent illness provides a powerful line of reasoning that there was indeed a disease of the mind on 4 November, and the tragic fatality cannot just be ascribed to the effect of temporary intoxication by prohibited drugs.
Issue
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The issue has arisen whether the jury should know about subsequent use of prohibited drugs by the accused in custody. As well as that, on one version, the accused has said that, in fact, quite apart from using cannabis and MDMA before 4 November 2018, he was also abusing the drug heroin, and it is said that that should be excluded from evidence as well.
Defence submissions
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The point, as I understand it, as has been made by senior counsel for the accused, is that, really, the experts are agreed, and indeed were agreed as at January 2020, that the accused is schizophrenic. So that this whole question of other drug use and subsequent drug use, might lead down a false path, bearing in mind that the focus of the jury must be on the early morning of 4 November 2018.
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It is also said that, to the extent that the accused has given different versions to different people about his use of prohibited drugs, both in custody and perhaps before his incarceration, if that is not to be used against him as credibility evidence, then, even so, there would be a very real temptation for the jury to do just that.
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The final overarching point is that, even assuming that the evidence is relevant, it would surely be prejudicial for the jury to know about heroin use if, in truth, heroin use is not implicated in the mental state of this man as at 4 November or, indeed, subsequently. Indeed, for the jury to know that he has been allegedly abusing opioids, sedatives and so forth; again, that would give rise to prejudice. And really, with regard to the aetiology of schizophrenia, it would be very unlikely for that to be able to be ascribed to drugs of that kind.
Determination
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Even so, I think that the drug use of the accused both before 4 November 2018 and after is compendiously relevant to the issues that the jury is going to have to decide.
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I think that it is important that a significant part of the defence case is a reasoning backwards from how the accused appeared subsequently. In other words, I think it would be strangely artificial to leave out from the tribunal of fact’s consideration - and, indeed, the evidence given by the psychiatrists - the use of drugs, unprescribed or prohibited, in the months and years after 4 November 2018.
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I say that simply because ascribing causation to drugs or a possible disease of the mind on 4 November 2018 is going to be a difficult and important part of the jury's role.
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Secondly and relatedly, I think that to provide diagnoses, especially diagnoses of a subsequent state, without all that has occurred in between, could lead to an incomplete and artificial picture.
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The third thing is that Dr Allnutt (qualified by the defence) saw the accused very recently, and came to his opinions and specifically grappled with this issue of reasoning backwards. But I think that again, in light of the fact that Dr Allnutt's opinion well post-dates the drug use in question, it would simply be artificial and incomplete to leave out an important part of what has been happening in the life of the accused.
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Furthermore, I think that, even accepting that the drugs under discussion may very rarely be psychoactive, in terms of having an effect in terms of schizophrenia as opposed to sedation and so on, even so there is some evidence that, in very rare circumstances, they can.
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As well as that, I think that the other drugs that the accused may have had in his body might cast light on the responsiveness to medication on his part over the months and years since his incarceration. In other words, again I think that to leave that out, would, arguably, make the medical records themselves incomplete.
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Finally, what we are discussing here really is the state of a human mind on 4 November 2018. The tribunal of fact will be asked to come to findings about the state of that mind, as I have said, based on a lot of material, what had happened before, what was happening during, and what has happened in the months and years afterwards.
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In other words, it is not like, to my mind, a physical diagnosis of a broken toe with which a sore throat has nothing to do, or almost nothing to do. I think we are talking about something subtle and not readily divided, especially in light of the issues that are joined between the parties: (a) what was the operating factor on 4 November, drugs or something underlying; and (b), to what extent can one safely and appropriately “reason back”?
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I do think that the evidence of the prior use of heroin and the subsequent use of unprescribed drugs is relevant to the defence of mental illness and the partial defence of substantial impairment.
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I accept that there will be some prejudice in the jury hearing about that. I think that heroin is a notoriously damaging drug. I think that in the general community it is possibly seen as more damaging than cannabis and perhaps ecstasy. As well as that, I think the jury will be troubled by the thought of a person being incarcerated for murder, and even so, obtaining drugs illegally in custody and using them.
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But I do think that a short firm direction can deal with that readily. I think the point can be readily made to the jury that they are hearing about that evidence in order to understand the state of mind of the accused on 4 November 2018, and, to the extent that one can, safely reason back from his subsequent state of mind.
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I also think that, as needs be, if it be the case that the evidence is not to be admitted for a credibility purpose, the jury would be receptive to me, if necessary, saying to the jury simply: “This is not being used to call the accused a liar or dishonest. It is simply being used in order to give you a complete picture as to precisely what his state of mind was back then, what his state of mind is or has been subsequently, and what role, if any, prohibited drugs have played in that.”
Conclusion
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For all of those reasons, I believe that the evidence is relevant to those two defences.
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I also do not believe that it requires exclusion pursuant to s 137 of the Evidence Act 1995 (NSW).
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Decision last updated: 13 November 2020
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