Citation: R v Sheridan [2022] NSWSC 1669
Court: Supreme Court of NSW
Date: 9 December 2022
Judge(s): Garling J
Background
An accused stood trial for the murder of the deceased, killed in his bedroom on 15 March 2021. It was not in dispute that the accused strangled the deceased, nor that at the time he was suffering from a drug-induced psychosis so severe that he did not know his act was wrong.
The accused raised a defence of mental health impairment under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The two psychiatric experts disagreed on a critical point: the Crown's expert opined that the impairment was caused solely by the temporary effects of drug-taking, while the defence expert opined it arose from the combined effect of drug use and an underlying chronic substance-related psychotic illness.
This judgment addresses a pre-trial legal dispute about the proper jury directions, specifically which party bore the onus of proving (or disproving) the s 4(3) exception to the statutory definition of "mental health impairment."
Legal Issues
- Whether the exclusion in s 4(3) of the Act (which removes from the definition of "mental health impairment" conditions caused solely by the temporary effect of ingesting a substance, or by a substance use disorder) constitutes an exception that places the onus of proof on the Crown
- If the Crown does bear that onus, whether the standard of proof is beyond reasonable doubt or on the balance of probabilities
- Whether the earlier decision of Cavanagh J in R v Miller [2022] NSWSC 802, which resolved both questions in favour of the Crown bearing the balance-of-probabilities onus, should be followed
Decision
Issue 1: Whether s 4(3) creates an exception placing the onus on the Crown
Garling J held that s 4(1) of the Act describes what constitutes a mental health impairment, while s 4(3) provides an exception or exclusion, operating to remove certain conditions from the available defence (at [22]). His Honour reasoned that requiring an accused to disprove that their impairment was caused solely by substance use would impose a heavy burden of proving a negative, and that as a matter of principle such an exception ought to rest on the prosecution (at [23]-[24]).
Issue 2: Standard of proof
The accused argued the Crown's standard should be proof beyond reasonable doubt. Garling J rejected that submission. While the Crown must prove the elements of an offence beyond reasonable doubt, that obligation does not extend to every fact in a trial, and there was no sound reason to treat the s 4(3) facts differently (at [25]). The onus therefore rests on the Crown to establish the s 4(3) exception on the balance of probabilities (at [26]).
Issue 3: Consistency with Miller
Garling J noted that the Crown urged him not to follow R v Miller, arguing Cavanagh J had not addressed certain High Court authority on the distinction between offence provisions and defences. His Honour applied the principle of judicial comity, finding he would generally follow a decision of a co-ordinate judge unless plainly wrong, and was not persuaded that Miller was plainly wrong (at [20]-[21]). His conclusion entirely accorded with that of Cavanagh J (at [27]).
Orders Made
- The Crown bears the onus to prove the facts relevant to s 4(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act (NSW) 2020 on the balance of probabilities.
- The jury is to be directed in accordance with the ruling.
Key Takeaways
- Under s 4(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the provision operates as an exception to the definition of "mental health impairment" rather than as part of the accused's burden to establish the defence (at [22]).
- Where the Crown seeks to rely on the s 4(3) exclusion, it bears the onus of establishing the relevant facts, because requiring an accused to disprove that their impairment arose solely from substance use would impose the onerous task of proving a negative (at [23]-[24]).
- The standard of proof applicable to the Crown on this question is the balance of probabilities, not the criminal standard of beyond reasonable doubt (at [25]-[26]).
- Judicial comity informs the approach of a Supreme Court judge to a decision of a co-ordinate judge on the same court: departure is warranted only where the earlier decision is plainly wrong, a threshold Garling J was not satisfied was met in respect of R v Miller (at [20]-[21]).
- Both this decision and R v Miller confirm that the introduction of the 2020 Act, while it recast the common law defence of mental illness in statutory form, did not necessarily preserve unchanged every aspect of the burden of proof framework, particularly where the statute creates exceptions to the definition of the impairment itself.
Legislation and Cases Referenced
Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 s s 4, 28
Cases
- Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 41
- Dowling v Bowie (1952) 86 CLR 136; [1952] HCA 63
- R v Fang (No. 3) [2017] NSWSC 28; 264 A Crim R 554
- R v Miller [2022] NSWSC 802