Citation: R v Zhang [2014] NSWDC 331
Court: District Court of New South Wales
Date: 9 October 2014
Judge: Judge S Norrish QC
Background
The accused entered a police station foyer in Burwood on the evening of 5 August 2013, carrying a blank-fire revolver. He paced around the foyer, then raised the weapon and pointed it directly at Constable Driscoll's chest, repeatedly pulling the trigger. The firearm was unloaded and did not discharge. The officer retreated behind a door, and the accused threw the weapon to the floor seconds later.
The accused was subsequently assessed at Concord Hospital, where treating clinicians diagnosed him with drug-induced psychosis in the context of chronic methylamphetamine use. He had smoked methylamphetamine earlier that day. His mobile phone contained bizarre text messages including references to killing the government, and he presented with grandiose delusions and auditory hallucinations upon hospital admission.
The accused was tried by judge alone on an indictment containing four counts: using an offensive weapon with intent to intimidate (count 1), assaulting a police officer in the execution of his duty as an alternative to count 1 (count 2), and two counts of possessing a prohibited unregistered pistol without a licence or permit (counts 3 and 4).
Legal Issues
- Whether the Crown had established the accused used an offensive weapon with intent to commit the indictable offence of intimidation (count 1)
- Whether the Crown had established the elements of assault on a police officer acting in the execution of his duty (count 2, alternative to count 1)
- Whether the Crown had established possession of a prohibited and unregistered pistol without authorisation (counts 3 and 4)
- Whether the accused had established, on the balance of probabilities, the defence of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990, applying the McNaghten test
Decision
Count 1: Using an offensive weapon with intent to intimidate
The court accepted that the firearm was an offensive weapon and that the accused pointed it at the officer (at [18], [39]). However, the court was not satisfied beyond reasonable doubt that the accused possessed the requisite intent to intimidate. The court noted the brief duration of the incident, the absence of any prior relationship between the accused and the officer, and the accused's claimed motivation of surrendering the weapon (at [69]). The accused also knew the firearm was unloaded (at [67]). Accordingly, the court returned a verdict of not guilty on count 1 (at [2]).
Count 2: Assault on a police officer
The court was satisfied beyond reasonable doubt that the assault on Constable Driscoll was established. By presenting the firearm, the accused caused the officer to apprehend immediate and unlawful violence, as the officer's retreat itself demonstrated (at [70]). The court drew a distinction between the higher intent requirement for intimidation under count 1 and the lower threshold of intentional or reckless conduct sufficient for assault under count 2 (at [71]).
Counts 3 and 4: Possession of a prohibited and unregistered pistol
The Crown established possession of the prohibited pistol beyond reasonable doubt through CCTV footage and eyewitness evidence (at [24]). The relevant certificates confirmed the pistol was unregistered and that the accused held no licence or permit to possess it (at [25], [67]).
Mental illness defence (counts 2, 3 and 4)
The court applied the McNaghten test, as adopted in New South Wales under s 38 of the Mental Health (Forensic Provisions) Act 1990. Drawing primarily on the opinion of forensic psychiatrist Dr Allnutt, supported by the earlier assessments of Dr Westmore and psychologist Ms Robilliard, the court found on the balance of probabilities that the accused suffered a disease of the mind producing a defect of reason (at [72]). The court was satisfied the accused did not know that what he was doing was wrong according to ordinary community standards (at [72], [73]). The condition was characterised as a drug-induced psychosis that was persistent rather than a merely transient reaction to an external stimulus, and therefore qualified as a disease of the mind for the purposes of the defence (at [62], [73]). Special verdicts of not guilty on the grounds of mental illness were entered on counts 2, 3 and 4.
Orders Made
- Count 1: Not guilty
- Counts 2, 3 and 4: Not guilty by reason of mental illness
Key Takeaways
- A verdict of not guilty on the primary count of using an offensive weapon with intent to intimidate was available where the Crown could not establish the specific intent to intimidate beyond reasonable doubt, even though the physical elements of the offending were not in dispute (at [69]).
- The court confirmed that, in a judge-alone trial, the prosecution bears the burden of proving all elements of each charge beyond reasonable doubt throughout the trial, and no adverse inference may be drawn from an accused's exercise of the right to silence (at [11], [15]).
- Drug-induced psychosis can constitute a disease of the mind for the purposes of the McNaghten test where medical evidence establishes that the condition was persistent rather than a transient reaction to an external factor, and that it produced a defect of reason preventing the accused from knowing that his conduct was wrong (at [62], [73]).
- Under s 38 of the Mental Health (Forensic Provisions) Act 1990, the accused bears the onus of establishing the mental illness defence on the balance of probabilities, while the prosecution retains the burden of first proving the elements of each charge (at [11], [27]).
- In a judge-alone trial under the Criminal Procedure Act 1986, the trial judge is required to expose the full reasoning process, identify all applicable principles of law, and address any necessary evidentiary warnings, not merely state bare conclusions (at [9]-[10]).
Legislation and Cases Referenced
Legislation
- Crime (Domestic and Personal Violence) Act, 2007
- Criminal Procedure Act (1986)
- Firearm’s Act 1996
- Mental Health (Forensic Provisions) Act 1990
Cases
- Fleming v R (1998) 197 CLR 250
- McKinney and Judge v R [1991] HCA 6
- R v McNaghten [1843] UKHL J16