Citation: R v Miller [2022] NSWSC 802
Court: Supreme Court of New South Wales
Date: 3 June 2022
Judge: Cavanagh J
Background
The accused was charged with the murder of a woman he strangled in the early hours of 20 June 2020. There was no prior history of violence or conflict between the two, and the only explanation put forward for his conduct was that he was experiencing a psychotic episode at the time.
The accused had a history of drug use, including LSD and cannabis, but drug testing following his arrest showed no LSD in his system and cannabis at a level too low to be psychoactive. The Crown accepted that he was not intoxicated at the time of the killing.
The key dispute was whether the accused was suffering from a "mental health impairment" within the meaning of s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act), which determined whether the special verdict defence under s 28 of that Act was available. A secondary issue was whether self-defence based on excessive force should also be left to the jury.
Legal Issues
- Whether s 4(3) of the MHCIFP Act, which excludes from the definition of "mental health impairment" any impairment caused solely by the temporary effect of ingesting a substance or by a substance use disorder, applied on the facts of this case.
- Whether s 4(3) operates as an exception or exclusion such that the Crown bears the onus of proving the facts that enliven it, rather than the accused bearing the onus of disproving it.
- Whether the definition of "mental health impairment" under s 4 is a question of fact for the jury to determine, or a question of law for the judge to resolve by direction.
- Whether the issue of self-defence with excessive force should be left to the jury.
Decision
The meaning of "mental health impairment" is a question of fact for the jury. Cavanagh J held that the definition in s 4 does not create a pure question of law for the judge. Whether the accused had a mental health impairment at the relevant time, including whether the s 4(3) exclusion applies, is a factual question that the jury must resolve. The accused was not seeking a directed verdict, and the court declined to direct the jury that the s 4(3) exclusion could not apply as a matter of law.
The s 4(3) exclusion does not apply automatically where the accused was not acutely intoxicated. The court accepted that the absence of drugs in the accused's system at the time of the offence was relevant but not determinative. The contest on the evidence was whether the accused suffered a drug-induced psychosis (a temporary substance-induced mental disorder) or a first-episode psychosis indicative of an underlying schizophrenic condition triggered by prior drug use. Only the former would engage the s 4(3) exclusion. Even the Crown's expert, Professor Greenberg, expressed uncertainty on this point.
On the onus of proof, s 4(3) operates as an exclusion. Cavanagh J accepted the submission that because s 4(3) operates as a form of exception to the definition, the Crown bears the onus of establishing the facts that bring the exclusion into operation. This was consistent with the general principle that where a provision excludes a matter that would otherwise fall within a definition, the party seeking to rely on the exclusion bears the burden of proving it.
Self-defence with excessive force was left to the jury. The accused had made statements immediately after the killing indicating he believed he was defending himself against a demon. Although this belief was not rational, the test for self-defence is subjective. Cavanagh J held the evidence was capable of supporting a reasonable doubt as to whether the prosecution had excluded self-defence, and so this question was also left for jury determination.
Orders Made
• The question of self-defence will be left to the jury to determine
Key Takeaways
- Under the MHCIFP Act, whether a person has a "mental health impairment" as defined in s 4, including whether the s 4(3) exclusion applies, is a question of fact for the jury and does not resolve into a pure question of law for the trial judge to direct away.
- Section 4(3) of the MHCIFP Act functions as an exception or exclusion from the definition of "mental health impairment," and the Crown bears the onus of proving the facts necessary to enliven it.
- A drug-induced psychosis that is temporary and substance-caused may engage the s 4(3) exclusion; a first-episode psychosis that is indicative of an underlying psychiatric condition such as schizophrenia, even if initially triggered by drug use, may not.
- The absence of drugs in a defendant's system at the time of an offence does not, by itself, resolve whether s 4(3) applies. The nature of the underlying disorder remains the critical factual question.
- Where the evidence shows a defendant held a genuine subjective belief, however irrational, that defensive force was necessary, the issue of self-defence (including with excessive force) must be left to the jury rather than withdrawn from its consideration.
Legislation and Cases Referenced
Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Crimes Act 1900 (NSW)
- Interpretation Act 1987 (NSW), s 34(2)(f)
Cases
- R v DB [2022] NSWCCA 87
- R v MC (No 2) [2021] NSWSC 1542
- R v Tonga [2021] NSWSC 1064
- R v Siemek (No 1) [2021] NSWSC 1292
- R v Pham [2021] NSWSC 196
- R v Flame (No 4) [2020] NSWSC 1826
- SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
- Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14
- Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293
- Moweno Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376