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2
Supreme Court 29 October 2020

R v Flame (No 2)

[2020] NSWSC 1602

HomicideDrugs
CRIMINAL LAW MURDER TRIAL BY JURY WHETHER COMPLETE SELF DEFENCE OR EXCESSIVE SELF DEFENCE SHOULD BE LEFT TO THE JURY

Citation: R v Flame (No 2) [2020] NSWSC 1602
Court: Supreme Court of New South Wales
Date: 29 October 2020
Judge: Button J

Background

The accused stood trial for murder. The prosecution alleged that he killed his close friend after consuming a large quantity of MDMA, during which he came to believe that his friend was either a demon or possessed by a demon. The primary defence was mental illness, with the central question being whether the accused was suffering from a disease of the mind causing psychosis, or whether his condition was caused solely by self-induced intoxication.

As the trial progressed, Button J was required to determine which legal pathways should be left open to the jury for deliberation. This ruling addressed specifically the question of self-defence, which in New South Wales has two components: the first leg asks whether the accused acted to defend himself; the second asks whether the conduct was a reasonable response in the circumstances as the accused perceived them.

Neither defence counsel nor the Crown pressed for complete self-defence to be left to the jury. The Crown also submitted that even the lesser form, excessive self-defence (which reduces murder to manslaughter), should not be left. Button J resolved both questions before the jury retired.

  • Whether complete self-defence under s 418 of the Crimes Act 1900 (NSW) should be left to the jury where the accused's belief that he was defending himself rested on a wholly fantastical delusion about a non-existent being.
  • Whether, even accepting the statutory "subjectification" of the second leg of self-defence, it was within Parliament's objective intention to ask a jury to assess the reasonableness of defending oneself against a demon.
  • Whether excessive self-defence should be left to the jury given that the accused's subjective belief, though wholly deluded, was caused by self-induced intoxication rather than a disease of the mind.
  • Whether the first leg of self-defence requires any objective foundation, or remains entirely subjective even where the underlying belief is completely divorced from reality.

Decision

Complete self-defence not left. Button J declined to leave complete self-defence to the jury. Although Parliament subjectified the second leg of self-defence (requiring the jury to assess reasonableness "in the circumstances as the accused perceived them"), his Honour concluded that this subjectification cannot extend so far as to require a jury to assess the reasonableness of defending oneself against a demon, which is a fantastical and non-existent being. To do so would produce a result so thoroughly counter-intuitive as to fall outside Parliament's objective intention. His Honour also noted that, if this extreme interpretation of the second leg were ever to be adopted, it would be better settled by the Court of Criminal Appeal than by a single trial judge.

Excessive self-defence left. The Crown argued that because the accused's belief was wholly deluded, the first leg of self-defence should also fail, and that both legs should be understood as requiring at least some grounding in reality. Button J rejected this, reaffirming that the first leg of self-defence is entirely subjective. His Honour relied on the analysis in R v Katarzynski [2002] NSWSC 613 and observed that no authority in the intervening 18 years had introduced any objective element into that first leg. Parliament, though it has explicitly excluded self-induced intoxication from many aspects of criminal liability, has not done so from the first leg of self-defence.

Button J acknowledged the tension this creates. A wholly deluded belief caused by a disease of the mind would likely be excluded from self-defence consideration under the sequencing principle in Hawkins v The Queen (the jury must reject mental illness before considering self-defence), whereas the same deluded belief caused by self-induced intoxication would not be excluded from the first leg. His Honour accepted that this was an awkward result but treated Parliament's explicit exclusions in other provisions as a deliberate legislative choice, not a gap to be filled by judicial implication.

Leaving excessive self-defence meant the jury could consider whether the accused, though perhaps not acting reasonably (second leg fails), genuinely believed he was defending himself (first leg succeeds), with the consequence of a verdict of manslaughter rather than murder. Button J regarded that outcome as far less counter-intuitive than a complete acquittal, and as more plausibly consistent with parliamentary intent.

Orders Made

• Complete self-defence will not be left to the jury
• Excessive self-defence, reducing murder to manslaughter, will be left to the jury

Key Takeaways

  • Button J held that the statutory subjectification of the second leg of self-defence under s 418 of the Crimes Act 1900 (NSW) has limits: requiring a jury to assess the "reasonableness" of defending oneself against a demon, a wholly fantastical and non-existent being, was found to exceed Parliament's objective intention.

  • Complete self-defence was not left, even though Parliament has subjectified the second leg, because the potential outcome of a complete acquittal on that basis was so counter-intuitive that the question was better resolved by the Court of Criminal Appeal than by a single trial judge acting on his own motion.

  • The first leg of self-defence remains entirely subjective, following R v Katarzynski [2002] NSWSC 613: a jury direction on excessive self-defence was required even where the accused's belief was based on a drug-induced delusion with no foundation in reality.

  • Parliament's silence on self-induced intoxication in the context of the first leg of self-defence was treated as deliberate, given the many provisions in which Parliament has explicitly excluded intoxication from aspects of criminal liability, including ss 23A(3), 61HE(4)(b), and 428D of the Crimes Act and s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Excessive self-defence reducing murder to manslaughter was found to sit more comfortably within parliamentary intent than complete self-defence, because the outcome is a reduction in degree of culpability rather than a complete acquittal for what was, on any view, a fatal act of violence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23A, 61HE, 418, 428D
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases
- Abdallah v R [2016] NSWCCA 34
- Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28
- R v Katarzynski [2002] NSWSC 613