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Supreme Court 3 May 2024

R v Murray

[2024] NSWSC 503

Homicide
CRIMINAL PROCEDURE JUDGE ALONE TRIAL MURDER DIRECTIONS DEFENCE OF MENTAL HEALTH IMPAIRMENT EXPERT EVIDENCE

Citation: R v Murray [2024] NSWSC 503
Court: Supreme Court of New South Wales
Date: 3 May 2024
Judge: Button J

Background

The accused was charged with two counts of murder arising from the fatal stabbing of both his parents on 13 August 2021. The primary defence was mental health impairment under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act"). The accused was said to have been suffering from a substance-induced psychotic disorder at the time of the killings, and both Crown and defence psychiatrists agreed that he had a mental health impairment as defined by the Act.

A judge-alone trial was listed to commence on 6 May 2024. Before formal arraignment, a dispute emerged between the parties about the proper construction of s 4 of the Act, which defines "mental health impairment." The resolution of that dispute was capable of determining whether the defence could be established at all, and potentially whether the matter should proceed as a trial or instead as a hearing under s 31 of the Act.

Button J conducted an urgent directions hearing and received written and oral submissions from both parties. This judgment resolves the competing constructions of s 4 before the trial commenced.

  • Whether s 4(2)(d) of the Act, which refers to "a substance induced mental disorder that is not temporary," operates as a mandatory exclusion, meaning an accused whose impairment arises from a temporary substance-induced disorder falls outside the definition of mental health impairment entirely.
  • Whether the carveout in s 4(3)(a), which excludes impairments "caused solely by the temporary effect of ingesting a substance," is borne on the prosecution or the accused to disprove.
  • How the phrase "caused solely" in s 4(3)(a) operates, specifically whether a contributing cause arising from the accused's own brain, mind, or mental state (beyond simple intoxication) is sufficient to defeat the carveout.

Decision

On s 4(2)(d) as an excluding provision: Button J rejected the Crown's argument that s 4(2)(d) operates as a mandatory exclusion for temporary substance-induced disorders. His Honour reasoned that s 4(2) is a non-exhaustive list of examples of disorders from which a mental health impairment may arise. The prefatory words of s 4(2) make this clear: the list is illustrative, not exhaustive. Accordingly, s 4(2)(d) is not a carveout at all; it is simply one example of a source from which a qualifying impairment may arise, and the negative attribute in the example (that the disorder is "not temporary") does not reverse-engineer an exclusion for disorders that are temporary.

On who bears the onus for s 4(3)(a): Button J agreed with the existing line of first-instance authority holding that the Crown bears the onus of establishing the factual basis for a carveout under s 4(3) on the balance of probabilities. The Crown had submitted those cases were wrongly decided, but His Honour respectfully disagreed. He noted this represents an alteration from the common law position, where the accused bore the full onus of establishing the defence.

On the meaning of "caused solely" in s 4(3)(a): His Honour held that the carveout operates only where the temporary effect of ingesting a substance is the sole cause of the mental health impairment. If there is any other cause connected to the accused's own brain, mind, or mental state, the carveout fails and the impairment remains within the defence. Importantly, that other cause does not need to meet any further threshold, such as being clinically significant for diagnostic purposes. Button J acknowledged this reading may produce a broader defence than Parliament subjectively intended, but concluded that the clear text and structure of the provision compelled it.

Orders Made

No formal orders were extracted in the text provided. Button J indicated how he would direct himself as tribunal of both law and fact in the judge-alone trial, resolving the three interpretive questions in the accused's favour on each point.

• Direct that s 4(2)(d) does not play an excluding role with regard to an otherwise established mental health impairment
• Direct that the Crown bears the onus on the balance of probabilities of establishing the proposition in s 4(3)(a)
• Direct that unless the Crown could establish on balance that there was no other cause arising from the brain or mind or mental state of the accused, apart from the temporary effect of ingesting a substance, for the accused possessing an already established mental health impairment, then the carveout in s 4(3)(a) would fail and that impairment would fall within the defence

Key Takeaways

  • Under s 4(2) of the Act, the list of disorders from which a mental health impairment "may arise" is illustrative and non-exhaustive. Section 4(2)(d), which refers to a substance-induced mental disorder "that is not temporary," does not operate to exclude temporary substance-induced disorders from the definition of mental health impairment.

  • The Crown bears the onus, on the balance of probabilities, of establishing that a carveout under s 4(3) applies. This follows three earlier first-instance decisions of the Supreme Court (Miller, Sheridan, Patterson) and represents a departure from the position at common law, where the accused bore the full onus on the mental health impairment defence.

  • The "caused solely" requirement in s 4(3)(a) is interpreted strictly: if there is any contributing cause of the mental health impairment that is distinct from the temporary effect of ingesting a substance, the carveout is defeated. That additional cause does not need to be clinically significant or satisfy any further criterion.

  • A substance-induced psychotic disorder that is temporary may still constitute a qualifying "mental health impairment" under the Act, provided the three cumulative conditions in s 4(1) are satisfied and the Crown cannot establish that the impairment was caused solely by the temporary effect of ingesting a substance.

  • The Supreme Court's construction reflects the objectively ascertainable parliamentary intention derived from the text of the Act, even where extrinsic materials do not specifically address the intersection between transient drug-induced mental conditions and criminal liability.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 31

Cases:
- M'Naghten's Case [1843] EngR 875; (1843) 10 Cl & Fin 200; (1843) 8 ER 718
- Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210
- Miller v R [2024] NSWCCA 51
- R v EC [2022] NSWSC 1088
- R v Fang (No 3) (2017) 264 A Crim R 554; [2017] NSWSC 28
- R v Hotoran [2023] NSWSC 1249
- R v Jawid [2022] NSWSC 788
- R v Miller [2022] NSWSC 802
- R v Patterson (No 6) [2024] NSWSC 458
- R v Sheridan [2022] NSWSC 1669
- R v Thompson (No 1) [2022] NSWSC 1044
- Radford v R (1985) 42 SASR 266; (1985) 20 A Crim R 388
- Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
- Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11