Citation: R v Flame (No 3) [2020] NSWSC 1604
Court: Supreme Court of New South Wales
Date: 26 October 2020
Judge(s): Button J
Background
The accused was charged with murder following the killing of a close friend in the early hours of 4 November 2018. There was no dispute that the accused caused the death, nor that he believed at the time that the deceased was a demon posing a threat to him. The central issue at trial was whether the accused was suffering from a disease of the mind at the time of the killing.
The Crown's case was that the accused's state of mind was the product of voluntary intoxication by alcohol, cannabis, and a large quantity of MDMA, rather than any underlying mental illness. The defence case was that the accused, who was by the time of trial concededly schizophrenic, had in fact been suffering from a disease of the mind on the night of the killing, and that his subsequent diagnosis could properly support a backwards inference about his mental state at the relevant time.
The question before Button J arose during the trial proper. Evidence emerged that the accused had used prohibited drugs while in custody after the killing, and had also allegedly used heroin prior to his incarceration. The defence sought the exclusion of that evidence.
Legal Issues
- Whether evidence of the accused's use of prohibited drugs in custody after the killing was relevant to the issues of mental illness and substantial impairment before the jury.
- Whether evidence of prior heroin use was similarly relevant.
- Whether, even if relevant, the evidence ought to be excluded under section 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused.
Decision
Button J declined to exclude the evidence. His Honour reasoned that a significant part of the defence case involved reasoning backwards from the accused's subsequent mental state to his condition on 4 November 2018. To exclude what had occurred in the intervening period, including drug use, would produce an incomplete and artificially narrow picture for the jury.
His Honour identified several reinforcing reasons. First, the jury's task of distinguishing between drug-induced intoxication and an underlying disease of the mind as the operating cause of the accused's conduct necessarily required a full picture of his drug history. Second, expert opinions, particularly those formed well after the events in question, could not properly be understood or evaluated without knowing the circumstances in which those experts reached their conclusions. Third, while some of the drugs in question might rarely have psychoactive effects relevant to schizophrenia, there was some evidence they could in very rare cases, and they may also have affected the accused's responsiveness to medication over time.
On the section 137 question, Button J accepted that the evidence carried some prejudicial potential. Heroin, he noted, carries a particularly negative social stigma, and the jury might also be troubled by the accused obtaining and using drugs illegally while in custody. However, his Honour was satisfied that a short, firm direction to the jury could adequately address that prejudice by confining the use of the evidence to its proper purpose: understanding the accused's state of mind at the time of the killing and the validity of reasoning backwards from his subsequent condition.
His Honour also indicated that, to the extent the evidence was not to be used as credibility evidence against the accused, the jury could be directed plainly that it was admitted solely to provide a complete picture of his mental state, not to impugn his honesty.
Orders Made
• The evidence of prior use of heroin and subsequent use of unprescribed drugs is admitted as relevant to the defence of mental illness and the partial defence of substantial impairment
• The evidence is not excluded pursuant to s 137 of the Evidence Act 1995 (NSW)
Key Takeaways
- In a murder trial where mental illness was the primary defence, the Supreme Court held that evidence of the accused's post-offence and pre-offence prohibited drug use was relevant to both the mental illness defence and the partial defence of substantial impairment.
- Where a defence case depends substantially on reasoning backwards from a subsequently diagnosed mental illness to the accused's state of mind at the time of the offence, the intervening history, including drug use, forms part of the relevant evidentiary picture rather than a collateral distraction.
- Probative value was not outweighed by the danger of unfair prejudice under section 137 of the Evidence Act 1995 (NSW) where a targeted jury direction could adequately confine use of the evidence to its proper purpose.
- Expert psychiatric opinions formed well after the relevant events cannot be properly evaluated by a jury in isolation from the post-offence circumstances in which those opinions were developed.
- The court drew a distinction between a physical diagnosis, where unrelated conditions may be genuinely irrelevant to one another, and an inquiry into mental state, which is "subtle and not readily divided" across time, particularly where the central dispute is whether conduct flowed from temporary intoxication or an underlying disease of the mind.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 137 (exclusion of evidence where probative value is outweighed by danger of unfair prejudice)
Cases cited: No cases were cited in the judgment.