Citation: R v Khan (No 10) [2019] NSWSC 447
Court: Supreme Court of New South Wales
Date: 18 April 2019
Judge: Bellew J
Background
The accused faced a charge of committing a terrorist act contrary to the Criminal Code 1995 (Cth), arising from a stabbing incident at Minto in September 2016. He pleaded not guilty on the grounds of mental illness. The matter came before Bellew J immediately before the Crown's final address to the jury.
The defence under s 7.3(1) of the Criminal Code permits an accused to avoid criminal responsibility where, at the time of the relevant conduct, a mental impairment meant the accused did not know the nature and quality of the conduct, did not know the conduct was wrong, or was unable to control the conduct. The parties had agreed on the terms of a standard direction to be given to the jury. The live contest before the court concerned a proposed additional direction sought by the defence.
Legal Issues
- Whether the jury should receive an additional direction explicitly stating that the word "wrong" in s 7.3(1)(b) of the Criminal Code means "morally wrong."
- Whether directing the jury in those expanded terms would place an unnecessary gloss on the statutory language and the agreed direction.
Decision
Defence counsel sought an additional direction drawn substantially from R A Hulme J's formulation in R v Pratt, but with the word "morally" inserted before "wrong." Counsel argued that some psychiatric evidence had touched on whether the accused knew his act was legally (as opposed to morally) wrong, and that without the additional direction, jurors might be confused about which standard applied.
Bellew J declined to give the additional direction in the form sought, including the word "morally." His Honour accepted that the authorities cited by the defence support the view that s 7.3(1)(b) is directed at moral wrongfulness. However, he considered that inserting "morally" into the direction would place an unnecessary gloss on the statutory language from which the agreed direction was directly drawn.
His Honour also rejected the argument that a risk of jury questions justified the additional direction. That argument was necessarily speculative, and any question from the jury during deliberations could be addressed at that time in consultation with counsel. His Honour was prepared to give the additional direction without the word "morally," a position the Crown had accepted.
Bellew J added that the Crown's characterisation of any distinction between legal and moral wrongfulness as artificial and unnecessary was one he generally agreed with. That observation extended to counsel's final addresses: counsel were to address the jury consistently with the agreed direction and the terms of the statutory defence, without placing a gloss on the legislative language.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Supreme Court declined to include the word "morally" in a jury direction concerning the mental illness defence under s 7.3(1)(b) of the Criminal Code 1995 (Cth), finding that doing so would place an unnecessary gloss on the statutory language.
- Where an agreed jury direction is taken directly from the operative statutory provision, courts are not obliged to supplement it with additional characterisations of the key terms, even if those characterisations are supported by established authority.
- A submission that an additional direction was needed to forestall possible jury questions was rejected as speculative; any actual jury question can be addressed in the ordinary way, in consultation with counsel, if and when it arises.
- Bellew J confirmed that the principle against glossing on statutory language applies equally to counsel's final addresses: counsel must address the jury in accordance with the agreed direction and the relevant statutory provision.
- Drawing a distinction between legal and moral wrongfulness was characterised as both artificial and unnecessary in this context, a view that shaped the court's refusal to embed that distinction in the jury directions.
Legislation and Cases Referenced
Legislation
- Criminal Code 1995 (Cth), s 7.3(1)
Cases
- R v McNaghten (1843) 8 ER 718
- R v Porter (1933) 55 CLR 182; [1933] HCA 1
- Stapleton v R (1952) 86 CLR 358; [1952] HCA 56
- R v Pratt [2009] NSWSC 1108