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Supreme Court 18 August 2020

R v Kelly; R v McLaughlin (No 1)

[2020] NSWSC 1088

Homicide
CRIMINAL LAW EVIDENCE WHERE ACCUSED CHARGED WITH MURDER ISSUE OF I NTOXICATION EVIDENCE EXCLUDED

Citation: R v Kelly; R v McLaughlin (No 1) [2020] NSWSC 1088
Court: Supreme Court of New South Wales
Date: 18 August 2020
Judge: Bellew J

Background

Two accused were charged with the murder of a man in Summer Hill, Sydney, in the early hours of 29 December 2018. The Crown alleged that the accused, both Irish nationals working in Sydney at the time, delivered a prolonged and fatal beating to the deceased near his parked vehicle on Grosvenor Crescent. The deceased died on 7 January 2019, with the direct cause of death identified as blunt force head injuries.

Both accused had been drinking heavily throughout the evening. Witness accounts and CCTV footage documented their progressive intoxication over several hours before the assault occurred. Intoxication therefore emerged as a significant issue in the trial.

The Crown retained Dr Richard Furst, a forensic psychiatrist, to provide separate expert opinions concerning each accused. The defence objected to the admissibility of those opinions, and Bellew J was required to rule on that objection before the trial proceeded.

  • Whether the expert opinions of Dr Furst were admissible under the Evidence Act 1995 (NSW), specifically whether they were relevant within the meaning of s 55
  • Whether the correct legal question in an intoxication defence is the accused's capacity to form the requisite intention, or whether the accused actually formed that intention
  • Whether the Crown's expert evidence, framed in terms of capacity, met the legal test applicable to murder charges where intoxication is raised

Decision

Bellew J traced the established line of authority holding that, where intoxication is raised as an issue in a murder trial, the relevant question is not whether the accused had the capacity to form the requisite intention but whether the accused in fact formed that intention. His Honour drew on the High Court's reasoning in Viro v R (1978) 141 CLR 88 and the NSW Court of Appeal's decision in Coleman v R (1990) 19 NSWLR 467 in confirming this distinction.

The NSW Court of Criminal Appeal's subsequent decision in Bellchambers v R (2008) 189 A Crim R 298 had expressly emphasised this point, and it had been confirmed again in Sullivan v R (2012) 221 A Crim R 490 and by the South Australian Full Court in R v Gardiner (2013) 117 SASR 143. Bellew J found that this line of authority was consistent and clear.

Dr Furst's opinions were expressed in terms of whether each accused had the capacity to form the intent to kill or cause grievous bodily harm. Because that framing addresses the wrong legal question, the opinions were irrelevant within the meaning of s 55 of the Evidence Act 1995. His Honour also rejected the Crown's reliance on R v May [2016] NSWSC 820, noting that the passages cited in that decision did not address the capacity-versus-actual-intent distinction at all.

Accordingly, the opinions of Dr Furst were excluded entirely.

Orders Made

• The opinions of Dr Furst are not admissible and are excluded.

Key Takeaways

  • Where intoxication is raised in a murder trial, the legally relevant question is whether the accused actually formed the requisite intention, not whether they had the capacity to form it. This principle is firmly established in NSW and has been confirmed at appellate level on multiple occasions.
  • Expert psychiatric evidence framed in terms of an accused's capacity to form intent does not satisfy the relevance test under s 55 of the Evidence Act 1995 (NSW), because capacity is not the issue the jury must decide.
  • The Supreme Court distinguished R v May [2016] NSWSC 820, finding that nothing in that decision addressed or undermined the capacity-versus-actual-intent distinction.
  • Bellew J applied a consistent line of authority from Viro v R through to Bellchambers, Sullivan, and Gardiner, treating the capacity question as having been definitively resolved against the Crown's position.
  • Expert opinion evidence, even from a qualified forensic psychiatrist retained by the Crown, will be excluded where it is directed at a legally irrelevant question.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 55
- Crimes Act 1900 (NSW)
- Court Suppression and Non-publication Orders Act 2010 (NSW)

Cases
- Viro v R (1978) 141 CLR 88; [1978] HCA 9
- Coleman v R (1990) 19 NSWLR 467
- Bellchambers v R (2008) 189 A Crim R 298; [2008] NSWCCA 235
- Sullivan v R (2012) 221 A Crim R 490; [2012] NSWCCA 41
- R v Gardiner (2013) 117 SASR 143; [2013] SASCFC 53
- R v May [2016] NSWSC 820