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12
Court of Criminal Appeal 28 September 2018

Fang v R

[2018] NSWCCA 210

Also reported as (2018) 97 NSWLR 876
HomicideDrugs
CRIME APPEAL CONVICTION

Citation: Fang v R [2018] NSWCCA 210
Court: NSW Court of Criminal Appeal
Date: 28 September 2018
Judges: Beazley P; R A Hulme J; Button J

Background

The appellant was convicted by a jury of the murder of his friend following a stabbing that occurred on the night of 6 September 2014. Both men had consumed significant quantities of alcohol and methylamphetamine (Ice) that evening. The appellant believed his friend had threatened to kill his family, and he fatally stabbed him during an argument.

At trial, the appellant did not dispute that he had killed the deceased. He raised the defences of mental illness and substantial impairment, as well as the issue of intoxication. The trial judge accepted that the appellant was experiencing a drug-induced psychosis at the time of the stabbing, but ruled that the defence of mental illness should not be left to the jury. The jury rejected the substantial impairment defence and returned a guilty verdict. The appellant was sentenced to 19 years' imprisonment with a non-parole period of 14 years.

On appeal, the sole question was whether the trial judge erred in refusing to leave the mental illness defence to the jury. The appellant argued that evidence of an underlying vulnerability to drug-induced psychosis was sufficient to enliven the defence.

  • Whether there was sufficient evidence that the appellant suffered from a "disease of the mind" for the purposes of the common law defence of mental illness
  • Whether the trial judge erred in declining to leave the mental illness defence to the jury
  • Whether a drug-induced psychosis, possibly arising from a pre-existing vulnerability to psychosis, can constitute a mental illness at common law

Decision

The Court of Criminal Appeal dismissed the appeal, finding that the trial judge had not erred in refusing to leave the mental illness defence to the jury. The threshold question was whether there was some evidence from which a jury could infer a reasonable possibility that the appellant was mentally ill within the meaning of the common law defence. The Court confirmed this test by reference to Woodbridge v R and R v Ayoub.

The legal standard for "mental illness" in this context requires an established defect of reason (in the M'Naghten sense) arising from an "underlying pathological infirmity of the mind," as stated in R v Falconer, which adopted passages from Radford v R. A transient mental disturbance caused solely by voluntary drug intoxication does not, without more, satisfy this requirement.

The Court examined the psychiatric evidence carefully. That evidence went no further than suggesting that some people who ingest drugs over time may be vulnerable to developing a psychosis. No objective evidence of brain changes was presented, there was no history of mental illness in the appellant or his family, and the evidence from his wife about behavioural changes before the stabbing was too general to support an inference of pre-existing mental illness. The psychiatrists' opinions on hallucinations rested on an unproven history.

The Court concluded that the psychiatric evidence, even taken at its highest, was insufficient either as a matter of diagnosis or as evidence that the appellant was suffering from a disease of the mind at the time of the stabbing. The mere possibility of an underlying vulnerability did not establish a mental illness for the purposes of the common law defence.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the test for leaving the mental illness defence to a jury is whether there is some evidence from which a reasonable possibility of mental illness, in the common law sense, could be inferred.
  • A defect of reason arising from a "disease of the mind" requires an underlying pathological infirmity of the mind, following R v Falconer (1990) 171 CLR 30 and Radford v R (1985) 42 SASR 266. A drug-induced psychosis does not automatically satisfy this requirement.
  • Evidence that some individuals who use drugs over time may be vulnerable to psychosis is insufficient, on its own, to establish a disease of the mind for the purposes of the common law defence of mental illness.
  • Where psychiatric expert opinions on hallucinations or mental state rest on an unproven clinical history, those opinions carry limited weight in establishing the factual foundation for the defence.
  • In dismissing the appeal, the Court drew a clear distinction between the defence of mental illness and the separate defences of substantial impairment and intoxication, each of which operates on distinct legal criteria.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 38
- Mental Health Act 2007 (NSW), s 3
- Criminal Code (ACT), ss 27, 28

Cases
- R v M'Naghten (1843) 8 ER Rep 718
- R v Porter (1933) 55 CLR 182
- R v Stones (1955) 56 SR(NSW) 25
- Radford v R (1985) 42 SASR 266
- R v Ayoub [1984] 2 NSWLR 511
- R v Falconer (1990) 171 CLR 30
- R v Youssef (1990) 50 A Crim R 1
- R v De Souza (1997) 41 NSWLR 656
- R v Derbin [2000] NSWCCA 361
- R v Ham [2009] NSWSC 296
- R v Doolan [2010] NSWSC 147
- Woodbridge v R [2010] NSWCCA 185
- R v Fang (No 4) [2017] NSWSC 323
- R v Pahl [2017] ACTSC 68
- Bouchard-Lebrun v R [2011] SCC 58