R v Patterson (No 5)

[2024] NSWSC 457

Supreme Court

New South Wales

Medium Neutral Citation:

R v Patterson (No 5) [2024] NSWSC 457

Hearing dates:

18 April 2024

Date of orders:

19 April 2024

Decision date:

19 April 2024

Jurisdiction:

Common Law - Criminal

Before:

Dhanji J

Decision:

(1)    The evidence of the accused's statements to Professor Greenberg as to what led to his psychotic episode were admissible.

(2)    The evidence tending to show drug use by the accused in custody was not admissible.

Catchwords:

CRIMINAL LAW – murder – evidence – admissibility – objections – aspects of evidence the Crown proposed to lead from its expert witness – relevance – witness heard from on the voir dire – where witness’ evidence on the voir dire was that the evidence was relevant to the opinion formed by him – whether probative value outweighed by prejudicial effect – reasons given

Legislation Cited:

Crimes Act 1900 (NSW), s 23A

Evidence Act1995 (NSW), ss 56, 137

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 28

Category:

Procedural rulings

Parties:

Rex (Crown)
Jason Patterson (Accused)

Representation:

Counsel:
K Ratcliffe (Crown)
MP King (Accused)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)

File Number(s):

2021/327813

Publication restriction:

Nil

EXTEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: The accused Jason Patterson is on trial having been charged with the murder of his sister Jody James. The issue in the trial is limited to the availability of a special verdict of act proven but not criminally responsible pursuant to s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and, in the alternative, the partial defence of substantial impairment provided by s 23A of the Crimes Act 1900 (NSW).

2. The Crown and the accused each rely on expert evidence. Professor Greenberg has been called by the Crown and Drs Farrar and Ellis have been called by the accused. They have given their evidence by way of concurrent evidence. There is no dispute amongst them that the accused was in a psychotic state at the time of the relevant acts. Professor Greenberg, on balance, is of the view the accused was suffering from a substance-induced psychotic disorder. Dr Farrar is of the view that he was suffering the effects of a schizophreniform disorder. Dr Ellis is of the view he was suffering from schizophrenia.

3. Objection was taken by the accused to aspects of the evidence the Crown proposed to lead from Professor Greenberg. While Professor Greenberg gave his evidence orally, the objections were identified in a table tendered on the voir dire, with references to Professor Greenberg's report of 10 March 2023, which anticipated the evidence that he would give orally.

4. The first objection was to evidence of the accused's self-assessment of the relationship between his drug use and his psychotic state on 17 November 2021. After hearing from Professor Greenberg on the voir dire and having heard argument, I ruled that the evidence of the accused's statements to Professor Greenberg as to what led to his psychotic episode were admissible. The evidence within this ruling was identified in a table and covered the following:

1. At page 6 point 44 of his report, Professor Greenberg asked the accused if he thought that ice and cannabis had any role in his behaviour, and he - that is, the accused - said they played a big part and put him in a psychosis.

2. At page 7 line 39 of the report, Professor Greenberg asked the accused to explain how he believed he killed his sister, and he said he was psychotic "because of the drugs, mixing them for too long".

3. At page 17 line 21 of the report, references were made to the accused's opinion as to the link between the use of drugs and the offence; and

4. At page 25 line 42 of the report, there are references to the accused's opinion about the cause of his psychosis.

5. The accused submitted that the evidence was irrelevant and thus inadmissible pursuant to s 56 of the Evidence Act1995 (NSW). In the alternative, if relevant, it was submitted that the probative value of the evidence was outweighed by its prejudicial effect and the evidence was thus inadmissible pursuant to s 137 of the Evidence Act.

6. Professor Greenberg has been called and qualified to give his expert psychiatric opinion. He was called on the voir dire in relation to the relevance of this particular evidence. His evidence on the voir dire was that the evidence I have identified was relevant to the opinion formed by him. He explained in his evidence on the voir dire why it was relevant to his reasoning process. It went to his opinion that the accused was suffering from a substance-induced psychotic disorder and not schizophrenia or a schizophreniform disorder. He said that people with schizophrenia tend to have limited insight. He said the evidence shows some insight on the part of the accused, with the result that whilst this part of the evidence was by no means definitive, it tended to point away from schizophrenia. In the circumstances of this case, the fact that it pointed away from schizophrenia had the necessary result that it pointed towards a drug-induced psychosis, they being, in essence, the alternatives at either end of the spectrum.

7. The accused in submissions questioned this reasoning process. It may be that the reasoning is flawed. Indeed, one can think of reasons why an individual may wish to regard a psychotic episode as drug induced rather than schizophrenia. Perhaps the reasoning is circular. The accused submitted that if called to give evidence on this subject, Dr Ellis would give evidence that the accused's self-assessment was not relevant.

8. That there may be conflicting views as to the value of evidence or that the reasoning process may be open to being tested does not make the evidence irrelevant. Plainly, on his evidence, the evidence objected to formed part of the reasoning process of Professor Greenberg. He is required to explain that reasoning process. The evidence is therefore relevant for that purpose. In the event the jury accepts Professor Ellis's evidence that the accused's opinion that it was a drug-induced psychosis is not relevant to determining a diagnosis, acceptance of that evidence will necessarily undermine Professor Greenberg's opinion. To that extent, Dr Ellis's opinion in fact underscores the relevance of the evidence.

9. Having found the evidence to be relevant, there remains the question of whether its probative value was outweighed by its prejudicial effect such that exclusion pursuant to s 137 of the Evidence Act is mandated. Counsel for the accused submitted that the evidence was of little probative value. That submission, however, said nothing about prejudice. Counsel was ultimately unable to point to any unfair prejudice in the evidence. It was for those reasons I admitted the evidence of the accused's statements as to what led to the psychotic episode.

10. Objection was also taken to evidence that the accused had not given up using drugs because he enjoyed taking them. Whilst that objection was bracketed with the objection I have just dealt with, no evidence was given on the voir dire to establish the relevance of that evidence. That evidence was not covered by the terms of my ruling, which referred only to the evidence of the accused's opinion as to the cause of his psychosis. No evidence having been led to establish the relevance of that evidence, I indicated earlier today that that evidence would not be admitted.

11. Objection was also taken to evidence of the accused's references to having used buprenorphine whilst in custody. Professor Greenberg had regard to a Justice Health record dated 13 December 2023 created by a registered nurse. There was no issue that the document was a record from Justice Health and, consequently, itself a business record. The particular entry reads:

“Pt states he has been IVDU since incarceration

states last used 1/52 ago

pt states that he has been injecting 1/4 bup strip daily”

12. Professor Greenberg gave evidence on the voir dire that the accused's drug use in custody was relevant because drug use would aggravate or worsen a schizophrenic illness. Professor Greenberg's opinion was that the accused showed no significant symptoms of schizophrenia from about eight or nine days following the alleged offending. Thus, the accused's drug use, as recorded in the note and which is to be assumed for the purposes of the ruling, made the absence of symptoms less likely if the accused in fact had schizophrenia, thus pointing away from the diagnosis of schizophrenia. Evidence pointing away from a diagnosis of schizophrenia, as I have indicated, has the necessary effect of pointing towards a diagnosis of substance-induced psychotic disorder.

13. It was not suggested that this aspect of Professor Greenberg's opinion was an essential step in his reasoning. Rather it was one of a number of threads relied on in support of his view that a diagnosis of substance-induced psychotic disorder was more likely, whilst acknowledging the matter is relatively finely balanced.

14. The probative value of the evidence is to be assessed on the basis that the evidence will be accepted. Acceptance of the evidence includes the basis for it, in this case, the note. Here the note reads, saliently, "[patient] states [that] he has been IVDU since incarceration". It is not an issue that "IVDU" stands for intravenous drug use.

15. The particular entry is, however, ambiguous. The more natural meaning is that the accused had been using intravenous drugs since the beginning of his incarceration. That said, however, the entry is not inconsistent with being understood as intravenous drug use “at some time since his incarceration”. The entry itself was made on 13 December 2023, more than two years after the accused entered custody. The ambiguity as to when the assumed drug use commenced and consequent inability to track that drug use or any such drug use with the progress of the accused significantly undermines the probative value of the evidence. Against that, the evidence is highly prejudicial.

16. The fact is that the accused is a man who has in brutal circumstances killed a person. He has linked his conduct to the use of drugs. Despite this, the evidence, if admitted, would be to the effect he has carried on using drugs. Acceptance or even a suggestion of acceptance of that evidence seems to me likely to result in a very unfavourable moral judgment being made against the accused. There is, in my view, significant unfair prejudice in the evidence. That is there is a significant danger that the evidence would be used in a way that is not logically probative with respect to its relevance.

17. I formed the view that the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused. For that reason I ruled that the evidence tending to show drug use by the accused in custody was not admissible.

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Decision last updated: 26 April 2024