Fang v R

Evidence

1. Before considering the trial judge's reasons, it is necessary to refer to the evidence relating to the appellant's drug use and his mental state before and after the stabbing.
2. The appellant did not give evidence at his trial. His wife gave evidence, as did Mr Weng. Expert psychiatric evidence was given by Dr Skinner, Dr Nielssen and Dr Allnutt. The psychiatrists all agreed that the appellant was suffering from a psychosis at the time he stabbed Mr Huang. The issue on the appeal was whether there was evidence sufficient to go to the jury that, at the time of the stabbing, the appellant suffered from a defect of reason arising from a disease of the mind.
3. The evidence of the psychiatrists is reviewed below in some detail, as it is the basis upon which the appellant contended that he had demonstrated that the defence of mental illness should have been left to the jury. It should be noted, however, that the history the appellant gave to each of the psychiatrists, including of the hallucinations he said he had experienced both before and after the stabbing incident, was the subject of a ruling pursuant to the Evidence Act 1995 (NSW), s 136.
4. Accordingly, the evidence of the history the appellant gave to the psychiatrists was evidence only of the fact of the history given and not evidence of the matters referred to in the history, subject to the following matters accepted by the Crown, namely, that there was evidence of drug use by the appellant in the period before the stabbing incident and that Mr Huang had made threats to the appellant, including that he was going to kill the appellant's family. The Crown also acknowledged that there was a question whether the appellant had suffered from delusions before the night of the stabbing.

Evidence of the appellant's wife

1. The appellant's wife gave evidence that the appellant had been using cannabis and Ice for up to 12 months prior to when the stabbing occurred. She said that the appellant "hadn't been normal for a period of time". In cross-examination, she said that for at least most of 2014, he would "fly into a rage quite often and that scared us a bit". Because of his behaviour, Ms He suggested to the appellant that he see a psychiatrist. However, there was no evidence that he did so.
2. Ms He did not give any evidence of the appellant hearing voices. In response to the direct question, "did he talk to you about hearing voices?", she said that it was very hard to have a conversation with him as he would "often talk nonsense". She gave no evidence of the appellant hearing voices. Ms He also said that when the appellant returned from China on 4 October 2014, he "appeared unhappy".

Evidence of Dr Skinner

1. The appellant gave a history to Dr Skinner that from July 2014, he had "occasional auditory hallucinations of voices on the radio". As reported by Dr Skinner, the appellant said that the voices would tell him "that they had control of his fate and that someone would hurt him or kill his family members". He told Dr Skinner that he "became very fearful but he did not tell anyone about it". The appellant also gave Dr Skinner a history that during the first two or three months in prison, he experienced "occasional auditory hallucinations from the television". These voices were speaking in Mandarin and told him that he and his family were at risk.
2. Dr Skinner explained the term "psychosis" in the following uncontroversial terms: "… an abnormal mental state in which a person is experiencing things that are not real. They include a number of things which can include delusions, a false belief, beliefs that are firmly held and which the person believes but which are not true and possibly hallucinations."
3. Dr Skinner said that it would probably take months of constant drug use for a psychotic state to develop. Dr Skinner was also asked about the effect of a psychotic state on an individual: "Q. And once [a psychotic state] developed, it [would then have] the effect of changing the person in the way the person would behave, the way the person would think, that type of thing? A. Well, if the person had delusions, as he claims, that he believed that his family was to be harmed, then his behaviour would be affected by that belief so that his behaviour would respond to that belief in ways of perhaps trying to protect his family in some way or to try and avoid the harm."
4. Dr Skinner considered that the appellant's functioning was substantially impaired at the time of the stabbing. She was of the opinion that the appellant probably appreciated what he was doing when he carried out the act of stabbing Mr Huang, but that he did not appreciate that it was wrong, because he believed he was doing it to protect his family.
5. Dr Skinner then gave the following evidence: "Q. Doctor, from your experience, do you agree that some people are more susceptible to come under the influence of, for example, ice or marijuana than others? A. Yes, that is a fact, yes. Q. And why is that? A. It's probably due to a number of factors, including genetic factors, that might pre-dispose, make a person more vulnerable to become dependent, but it also depends on the - the physical effects of the drug vary from person to person, so some people are more affected by lower doses of the drug and some people don't develop a psychosis even though they do continue taking the drug and people taking the same dose might have different effects. Some people are more vulnerable to develop a dependence on the drug, yes; and some people in a particular state might be more prone to develop a dependence." (emphasis added)
6. The appellant relied upon this as evidence that, as he had in fact developed a psychosis, he fell into that category of person who was more susceptible or more vulnerable to doing so.
7. However, Dr Skinner's evidence continued as follows: "Q. If a person was undergoing some deep-seated emotional troubles, parents diagnosed with cancer, his mother having suffered a serious motor vehicle accident, the relationship with his wife was going downhill, would they, if present, pre-dispose [the appellant], for example, to becoming more affected or would they have a bearing on his reaction to ice or marijuana? A. I don't know whether it would affect his reaction to the drug ice, but it would pre-dispose him to be more likely to take the ice because he felt bad about his circumstances. He might be more prone to take the drug to try to make him feel better, whereas if those circumstances did not exist, he might resist the idea of taking the drug."

Evidence of Dr Nielssen

1. The appellant also gave Dr Nielssen a history of voices coming "from the car radio or from the computer" and that he felt that his mind "was controlled". He said that the voices persisted for three to five months after his reception into prison. The appellant also said that his wife had "conned" him into seeing the family doctor who had given him medication, but that he had stopped taking it as it made him feel very tired.
2. Dr Nielssen suggested a differential diagnosis of substance abuse disorder or substance induced psychosis, rather than a relapsing psychotic illness such as schizophrenia, because: "… the symptoms emerged after several months of regular use of methamphetamine, which is a drug known to trigger psychosis in susceptible individuals, so many people will take it and not become psychotic, but if you're susceptible, you will. And also because [the appellant] appears to have recovered over a period of several months after he stopped using drugs, without any kind of treatment, and had remained relatively well during the two years that he spent on remand. So he recovered spontaneously without treatment."
3. Dr Nielssen continued: "So, from the information that was available, I formed the opinion that [the appellant] was in an abnormal state of mind around the time of Mr Huang's death and notwithstanding the real threats that had been made by Mr Huang, including threats to kill his own wife and her family, [the appellant's] account of the interpretation of threats by Mr Huang to his family had the quality of a persecutory delusion, which arose in the context of a drug-induced psychotic illness."
4. Dr Nielssen further stated: "… it was my opinion that his underlying psychotic illness amounted to a disease of the mind in legal terms and that he had a defect of reason in the form of the delusional belief that Mr Huang planned to kill his family, and impairment in the capacity for logical thought and emotional regulation that is associated with an acute psychosis. And my view was that it seemed likely that, at the time of the offence he believed that he was acting to protect his family and did not recognise that his action in killing Mr Huang was morally wrong at that time. … … it was my opinion that his psychotic illness was an underlying condition that was present before the offence …"
5. Dr Nielssen was asked further questions about the "mental health aspect" of using Ice: "Q. … With the ingestion of drugs, for example, ice, methamphetamine or amphetamine, if ingested regularly for a period, can they themselves produce an abnormality of mind? A. Yes, the reactions to methamphetamine exist on a spectrum of - it is described a little bit by Dr Skinner that you've got some people who can take, you know, huge amounts for days on end, not sleep for a week and not have any symptoms, but what typically happens after you've been awake for a while is you start to have illusions, see things out of the corner of your eye, misinterpret conversations, start to become suspicious, but after a - and that's a toxic delirium more than a psychosis and after a good night's sleep, all those symptoms resolve, the person realises they were affected by drugs and they carry on. At the other end of the spectrum is you've got people who have an illness like schizophrenia, have a tiny little bit of methamphetamine, and trigger off an episode that lasts for a month. And requires a long admission to hospital because they've got that underlying susceptibility and there's a spectrum in-between that a lot of people use drugs, not that many people get florid psychotic illnesses. Q. And could that abnormal state continue without using drugs? A. Well, again, it's - I've observed this quite often amongst people I've interviewed in gaol that - they're not known to have a history of mental illness, they've reached their third and fourth decades without admission to hospital, they've taken up heavy methamphetamine use and they've had a psychosis, a touch of unreality with delusional beliefs and it takes quite a while for those symptoms to resolve, you know, three and six months, as Dr Skinner says, is quite common."
6. In cross-examination by the Crown, in a passage relied upon by the appellant, Dr Nielssen stated: "… What I can say is that he had an enduring delusional belief, whether it was solely triggered by ice or due to an underlying vulnerability to develop psychotic illness. It seems clear that his state of mind was not normal in the period before, from his history, and certainly not normal in the time immediately afterwards, presumably when he was no longer intoxicated. And the effect of the ice used would almost certainly have been to exacerbate an underlying condition." (emphasis added)
7. Dr Nielssen stated that the appellant's use of Ice at the time of the murder "made his underlying condition worse". Dr Nielssen reiterated his opinion as to the appellant's vulnerability: "A. … I think he was affected by a psychotic illness. Q. A psychotic illness which developed as a result of him taking the drug ice over a period of time? A. That's right, over several months in a person with a vulnerability to develop psychosis. Q. So, is this correct: The continuation of the psychotic illness relied upon him continuing to take ice? A. That's right. Well, the symptoms abated over the histories given, is over several months after he stopped, and he hasn't relapsed since they abated. Q. Now, he seems pretty well; is that right? A. Well, as far as I can tell, with a single interpreter-assisted interview, but yes, he reports being free of symptoms. Q. So, the illness depends upon, simply, the continuation of him taking ice and, when he stops taking ice, it goes away - it takes a little while, but it does go? A. Yes, well, as I mentioned yesterday, it is not just straight-out intoxication; it is persistent use in a vulnerable person. Q. But it wouldn't be there, this psychosis, but for the ingestion of relatively large amounts of ice over a period of time? A. Presumably large amounts, yes, or increasing amounts, as is often the case. Q. So, as I said, as soon as it stops, it goes away in time and it has gone away, correct? A. Yeah … … Q. So, analysed in that way, would it be fair to categorise this illness as 'transitory'? A. Well, it depends upon the legal definition of 'transitory'. I would call it an underlying condition, a pre-existing condition that wasn't transitory, that was present for at least a number of months. Q. But for whose continuation depended upon him taking ice? A. Yes, ultimately, yes." (emphases added)
8. Dr Nielssen, in re-examination, confirmed his view that the appellant had an underlying condition. Significantly, for the resolution of the question in issue before the trial judge and on the appeal, Dr Nielssen identified the underlying condition as "an underlying vulnerability to psychosis". He opined that an underlying vulnerability could be due to a number of factors, including a head injury, migration, or an unknown family history.
9. Dr Nielssen was dismissive of the St George Hospital psychiatric assessment that the appellant was not suffering from a mental illness or disorder on 11 September 2014, as it was not undertaken by a psychiatrist, was cursory, and was undertaken using a telephone interpreter and in circumstances where no corroborative information was gathered. Dr Nielssen also observed that the appellant was not assessed by a psychiatrist in the year after his reception into prison.
10. It should be noted at this point that Dr Nielssen's opinion that the appellant's psychotic illness was an underlying condition that was present before he stabbed Mr Huang was based upon an understanding that the appellant had been prescribed anti-psychotic medication by his general practitioner and that he suffered hallucinations for some months after the offence. Neither of these matters was established in the evidence, as discussed later in these reasons. Indeed, there was no record of the appellant attending upon his general practitioner in the months before the stabbing incident, nor having been prescribed any anti-psychotic medication.

Evidence of Dr Allnutt

1. Dr Allnutt examined the appellant in September 2015, at which time he did not manifest symptoms of a psychotic disorder. The appellant gave Dr Allnutt a history suggesting that he had suffered a head injury when he fell off a car at the age of 16 or 17, which put him in a coma. However, Dr Allnutt stated that there was "no clear evidence of any neurological problem" at the time that he examined the appellant. In his consultation with Dr Allnutt, the appellant did not describe a family history of mental illness, such that Dr Allnutt considered that the appellant did not manifest a strong genetic predisposition to mental illness. Dr Allnutt considered that the appellant did not have a personality disorder and, in particular, did not have an antisocial personality disorder.
2. Dr Allnutt referred to the appellant's history of family stressors in the three to four years before the stabbing incident, namely, that the appellant's mother was involved in a serious motor vehicle accident, both his parents were diagnosed with cancer and the appellant's wife miscarried with twins. In Dr Allnutt's opinion, this triggered the onset of a depressive episode. The appellant's history was that it was in this context that he was introduced to Ice. At that time, he was already drinking alcohol and using cannabis intermittently.
3. Dr Allnutt was of the opinion that, on the information available, "drugs triggered the onset of a psychosis and as a consequence [the appellant] had a drug-induced psychosis".
4. Dr Allnutt then gave the following evidence: "Q. Once the psychosis or the underlying condition is there, if the ingestion of drugs ceased, would the condition be on-going for a period of time? A. For diagnosis of a drug-induced psychosis, there needs to be evidence of the onset of symptoms of psychosis, either during a period of intoxication or during a period of withdrawal that then persists. Methamphetamines are particularly nasty drugs and tend to be more likely to cause a psychosis than many of the other drugs. And methamphetamines also have been shown to cause actual changes in the brain, so they can trigger a disease process … … A. … If symptoms persist longer than a month, then that is consistent with an independent, almost illness process happening, so, in other words, the drug damages the brain and the damage persists … … where the person takes something like methamphetamines over a lengthy period of time, in this case about a year, so that the person's brain is continually exposed to methamphetamines which then starts causing changes in the brain. When the person stops the amphetamines, it takes time for the brain to re-constitute because there's been damage and therefore disease. In that sense psychiatrists would regard this as a condition and a mental illness and would regard it as something beyond … mere intoxication … The drugs have damaged the brain … That's why psychiatrists would regard this as an illness or a condition and therefore an underlying condition. People vary in their vulnerability to psychosis due to amphetamines. Some people take amphetamines and they feel high, lots of energy, great. When they go off it, they feel depressed and [the appellant] describes those. But in his case it's more than just the effect of the amphetamine which is the high euphoria, there's another level to it which is psychosis. He describes referential thinking and he describes paranoid ideation and he also has described auditory phenomena. Those are all symptoms of psychosis. So it's as though there's two levels to this. I think that explains it. … A. … There's research on the effects of the methamphetamines on the brain and it's still relatively at the early stages but there's evidence of brain damage in people who take methamphetamines, particularly over a long period of time, and are dependent on that …" (emphases added)
5. Dr Allnutt agreed in cross-examination that the psychosis from which the appellant was suffering at the time of the murder was temporary and had resolved by September 2015.

Trial judge's reasons

1. The trial judge stated, at [5], that the matter upon which he was ruling was the question: "… whether drug-induced psychosis, arising from the voluntary use of the prohibited drug [Ice], may (in the absence of any other form of mental illness) give rise to the defence of mental illness for a crime committed whilst a person is subject to that self-induced condition."
2. His Honour observed, at [10], that following his arrest, the appellant was not diagnosed with any psychiatric illness. His Honour further observed that by the time the appellant was examined by the three psychiatrists in 2015 and 2016, he did not appear to be suffering from any psychiatric illness.
3. His Honour noted, at [31], that upon the assumptions arising from the evidence and the history given by the appellant, each of the psychiatrists was of the opinion that, at the time of the stabbing, the appellant: "… was subject to a drug-induced psychosis (or substance-abuse psychosis) resulting from his use of 'Ice'. The evidence was that the drug-induced psychosis was associated with his long-term and regular use of 'Ice', accompanied by his further ingestion of the substance before the killing …"
4. His Honour further observed, at [32], that although the appellant could have experienced a drug-induced psychosis arising from his regular use of Ice, each of the psychiatrists had accepted the critical importance of the "final ingestion" of Ice before the stabbing to the appellant's mental state at the time of the stabbing.
5. The trial judge, after referring to the factual background, reviewed the evidence as to the appellant's use of Ice and examined the psychiatric evidence concerning the appellant's mental state at the time of the stabbing. Having done so, his Honour noted, at [36], that the appellant had no personal history of mental illness, nor was there any family history of mental illness. His Honour noted that since being taken into custody on 4 October 2014, there had been no diagnosis of mental illness, including psychosis, nor had he been treated for any psychiatric condition.
6. His Honour referred, at [40], to Dr Allnutt's evidence that although the use of Ice may cause actual changes in the brain, "there was no evidence in the trial that [the appellant] had experienced any such changes". His Honour then observed, at [41], that: "With varying degrees of emphasis, it was the evidence of the three psychiatrists that [the appellant] appeared to have been labouring under a defect of reason (a delusion that Mr Huang had threatened to kill [the appellant's] family) arising from a suggested disease of the mind (drug-induced psychosis). Again with varying degrees of emphasis, there was evidence that, although [the appellant] understood the nature and quality of his act in killing Mr Huang, he did not know that it was morally wrong ..."
7. His Honour noted, at [45], the Crown's reliance on the appellant's "purposeful conduct" in allegedly wrapping Mr Huang's body in the doona, placing the body in Mr Huang's car, driving approximately 12 km, and then leaving the car, and the body, at Lidcombe. His Honour considered that this conduct would have been a "significant" issue for the jury, if the defence of mental illness had been left to the jury. However, the question for his Honour's determination was whether to leave the defence to the jury. His Honour stated, at [46], that he had approached that question on the basis that the defence ought to be left to the jury if there was some evidence to support it such that the defence was fairly open: see R v Ayoub [1984] 2 NSWLR 511 at 515. The question therefore, as his Honour posed it at [47], was "whether there was evidence of a defect of reason due to a disease of the mind, so that the defence of mental illness should be left to the jury".
8. His Honour observed, at [62], that what constitutes mental illness is a question of law. His Honour stated, relevantly for this matter, at [68]ff, that the following propositions emerge from the authorities concerning the defence of mental illness.
9. First, an accused person is presumed to be sane and possessed of a sufficient degree of reason to know the nature and quality of his or her act, and that what he or she is doing is wrong until he or she proves to the contrary: see R v M'Naghten (1843) 8 ER Rep 718; R v Porter (1933) 55 CLR 182; [1933] HCA 1 at 183-184; R v S [1979] 2 NSWLR 1 at 61; Howard and Westmore, Crime and Mental Health Law in New South Wales (2nd ed, 2010, LexisNexis) at 274-275.
10. Secondly, the onus lies upon an accused person to establish the defence of mental illness on the balance of probabilities: Porter at 184; S at 41; Howard and Westmore at 272-274.
11. Thirdly, his Honour stated: "… the second rule in R v M'Naghten is the practical foundation for the defence of mental illness - to establish the defence, it must be proved that, at the time of committing the act, the accused person was labouring under a defect of reason, from disease of the mind, so as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know that what he was doing was wrong, in the sense of being morally wrong according to the ordinary principles of reasonable men, not whether he knew it was wrong as being contrary to law: The King v Porter at 189-190; Stapleton v The Queen at 367-368."
12. His Honour then conducted an extensive review of the authorities regarding the M'Naghten rules and intoxication. His Honour noted, at [85], that in R v Falconer (1990) 171 CLR 30; [1990] HCA 49, which adopted and applied the judgment of King CJ in Radford v R (1985) 42 SASR 266, it was held that the defence of mental illness was not available "where an accused person's condition is the product of self-induced intoxication by alcohol or drugs". His Honour also observed, at [94], that the case law in New South Wales supported the proposition that: "… a drug-induced psychosis (or intoxication by alcohol or drugs) does not constitute a 'disease of the mind' unless there is also a separate psychiatric illness which is operative at the time of the act giving rise to the charge." See especially R v Derbin [2000] NSWCCA 361; R v Ham [2009] NSWSC 296; R v Doolan [2010] NSWSC 147.
13. His Honour considered, at [96] and [102], that the Victorian case law supported the proposition upon which the Crown relied, that is, that a drug-induced psychosis alone does not constitute a disease of the mind: see especially R v Martin (No 1) (2005) 159 A Crim R 314; [2005] VSC 518; R v Sebalj [2006] VSCA 106; R v Konidaris [2014] VSC 89; R v Gibson [2016] VSC 634. His Honour considered, at [104], that Canadian authority also supported the Crown's argument: see Bouchard-Lebrun v R [2011] 3 SCR 575; [2011] SCC 58.
14. His Honour then considered, at [105]-[112], the application to this case of the principles he had derived from the case law. His Honour observed, at [106], that Ice was a "contemporary scourge in the community" but that individuals, such as the appellant, "make a choice" as to whether to use it and that such individuals may be taken to have some awareness of its severe effects.
15. His Honour referred, at [107]-[108], to the policy lying behind the defence of mental illness and noted the "narrow parameters" within which the defence operates. As his Honour observed, at [108]: "The policy and content of the criminal law in New South Wales has, for some years, confined the ability of an accused person to rely upon self-induced intoxication by alcohol or a drug. In determining whether a person charged with murder was subject to substantial impairment by way of abnormality of the mind, self-induced intoxication must be put to one side entirely: s.23A(3) Crimes Act 1900 (as amended in 1997). Further, the capacity of an accused person to rely upon self-induced intoxication at trial is confined by the provisions in Part 11A Crimes Act 1900 (ss.428A-428I)."
16. His Honour concluded, at [109], that this was not a case where there was evidence that the appellant had an underlying existing mental illness which was triggered or exacerbated by his use of Ice. For that reason, the case was to be distinguished from those New South Wales and Victorian decisions where the accused had a pre-existing mental illness. Rather, in his Honour's view, stated at [110], the evidence indicated that any drug-induced psychosis from which the appellant was suffering at the time of the stabbing was the product of his use of Ice and that the appellant did not otherwise suffer from a disease of the mind.
17. In coming to this conclusion, his Honour noted that the appellant recovered spontaneously from his psychosis when he ceased using Ice. His Honour concluded, at [110], that the psychosis was "a temporary and not persisting state which flowed solely from [the appellant's] use of prohibited drugs". In his Honour's view, the appellant had not "adduced evidence that he was suffering from a 'disease of the mind' for the purpose of the common law test of mental illness".

Consideration

1. This appeal raises the application of two interrelated principles: first, the principles governing the defence of mental illness; and secondly, what must be established in order for the defence to be left to the jury. In determining whether the defence should have been left to the jury, it is important to understand at the outset that, as the trial judge noted, what is necessary for the defence of mental illness to be established is a question of law: see Falconer at 49 (per Mason CJ, Brennan and McHugh JJ), 60 (per Deane and Dawson JJ), and 74 (per Toohey J). As Gaudron J explained in Falconer at 84, it is a "question of law whether [the] evidence raised a mental state involving a disease of the mind or natural mental infirmity". Whether or not the accused suffered from a mental illness at the relevant time is a question of fact: see Falconer at 60 (per Deane and Dawson JJ) and 74 (per Toohey J).
2. It is convenient to refer to the second of these principles first. Where an accused raises a defence of mental illness, there may be, as was the case here, a question whether that defence should be left to the jury. In R v Shields [1967] VR 706, the Supreme Court of Victoria stated, at 707-708, that "if the evidence at a trial reasonably raises a defence of insanity it is the duty of the trial judge … to submit that issue to the jury". The test was stated in similar terms in respect of sane automatism in Woodbridge v R (2010) 208 A Crim R 503; [2010] NSWCCA 185. In that case, Davies J (McClellan CJ at CL and R S Hulme J agreeing in part) stated, at [73]: "All that needs to be shown, therefore, for the matter of sane automatism to be left to the jury is that there should be some evidence from which it can be inferred that there is a reasonable possibility that the act of the accused was not voluntary. The matter to be determined is whether there was any evidence from which it could be inferred that there was the reasonable possibility of an involuntary act."
3. In R v Youssef (1990) 50 A Crim R 1, Hunt J stated, at 3, that "[t]he authorities make it clear that such a reasonable possibility must be shown by admissible evidence".
4. The trial judge approached the question of whether to leave the defence of mental illness to the jury on the basis that the defence ought to be left if there was some evidence to support it such that the defence was fairly open, as stated by Street CJ (Slattery J agreeing) in Ayoub at 515. Both parties accepted that this was the applicable test.
5. We do not consider there to be any material difference between this formulation of the question and that stated in the more recent decision of Woodbridge. No submissions were made by the parties as to any difference between the tests in Ayoub and Woodbridge.
6. The defence of mental illness in New South Wales is governed by the Mental Health (Forensic Provisions) Act 1990 (NSW), s 38. That section provides as follows: "38 Special verdict (1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness. (2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person."
7. A "mentally ill person" is defined in s 3 to have the same meaning as in the Mental Health Act 2007 (NSW). "Mental illness" is also defined in that Act. It is not necessary to dwell on those definitions for present purposes, as it is accepted, as the trial judge pointed out at [67], that s 38 operates to give effect to the common law principles concerning the defence of mental illness. In essence, these principles involve the application of the M'Naghten rules, as those rules have been explained and applied in this jurisdiction.
8. In M'Naghten, the House of Lords stated: "… to establish a defence on the ground of insanity, it must be clearly proved that at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or as not to know that what he was doing was wrong."
9. The meaning of the expression "disease of the mind" within the M'Naghten rules was considered by King CJ in Radford, at 274: "The expression 'disease of the mind' is synonymous, in my opinion, with 'mental illness' … I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as disease of the mind as that expression is used in the M'Naghten rules. As Lord Denning pointed out in Bratty v Attorney-General (Northern Ireland) [[1963] AC 386 at 412] … any 'mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind'." This statement was endorsed as correct by Mason CJ, Brennan and McHugh JJ in Falconer at 53.
10. In Radford, King CJ also stated that for there to be a disease of the mind, there had to be "an underlying pathological infirmity of the mind". However, his Honour considered that the underlying infirmity did not have to be permanent and could be of long or short duration. As his Honour explained, at 274-275: "The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called 'defect of reason' in the M'Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli. In my opinion the notion of 'disease of the mind' should be explained to the jury in some such terms."
11. In Falconer at 54, Mason CJ, Brennan and McHugh JJ considered that the dichotomy drawn by King CJ between mental illness and a healthy mind affected by an external stimulus was correct, but added: "… a temporary mental disorder or disturbance must not be prone to recur if it is to avoid classification as a disease of the mind. That is because a malfunction of the mind which is prone to recur reveals an underlying pathological infirmity."
12. Their Honours then considered the difficulties that arise when a temporary mental disorder or disturbance is precipitated by psychological trauma. Their Honours noted, at 55, that, in a case of "a transient malfunction of the mind precipitated by psychological trauma", the problem lies in determining the cause of the malfunction, that is, whether it is the trauma itself or "the natural susceptibility of the mind to affection by psychological trauma". In determining the relevant cause, their Honours considered that it was necessary for the law to postulate: "… a standard of mental strength which, in the face of a given level of psychological trauma, is capable of protecting the mind from malfunction to the extent prescribed in the respective definitions of insanity. That standard must be the standard of the ordinary person: if the mind's strength is below that standard, the mind is infirm; if it is of or above that standard, the mind is sound or sane."
13. Their Honours continued that if a psychological trauma causes: "… a sound mind, possessed of the requisite standard of strength, to malfunction only transiently so as to produce the effects mentioned in the M'Naghten Rules … the malfunction cannot be attributed to mental infirmity but to 'the nature of man': that is to say, a malfunction which is transient and not prone to recur and to which the mind of an ordinary person would be subject if exposed to the same psychological trauma is neither a mental disease nor a natural mental infirmity. It is … [not] an instance of insanity at common law."
14. Toohey J (Deane and Dawson JJ agreeing) also endorsed as correct the approach of King CJ in Radford in the passages cited above. His Honour additionally cited with approval the following passage from Radford: "The decided cases provide examples of various external factors which have disturbed otherwise sound minds in a way which has raised the issue of automatism. Examples given by Lord Diplock, speaking for the House of Lords in Reg v Sullivan, are blows to the head causing concussion and the administration of anaesthetic for therapeutic purposes. These are physical factors, but there are examples of automatism resulting from psychological or emotional stress being left for the consideration of juries: Reg v Pantelic; R v K; R v Sproule; R v Wiseman. There is no reason in principle for making a distinction between disturbance of the mental faculties by reason of stress caused by external factors and disturbance of the mental faculties caused by the effects of physical trauma or somnambulism. The significant distinction is between the reaction of an unsound mind to its own delusions or to external stimuli on the one hand and the reaction of a sound mind to external stimuli, including stress producing factors, on the other hand." (emphasis added) (footnotes omitted)
15. As these judgments indicate, a difficult question can arise where a temporary mental disorder or disturbance is produced by external factors. Gaudron J also made reference to this in Falconer, at 84-85, as follows: "The distinction has sometimes been expressed in terms of mental states having an external cause and those that proceed from internal causes: Reg v Quick. Sometimes the distinction has been expressed by reference to the transient or recurring nature of the particular mental state: Bratty; Reg v Carter; Reg v Meddings. In general terms, a recurring state which involves some abnormality will indicate a mind that is diseased or infirm, but the fundamental distinction is necessarily between those mental states which, although resulting in abnormal behaviour, are or may be experienced by normal persons (as, for example and relevant to the issue of involuntariness, a state of mind resulting from a blow to the head) and those which are never experienced by or encountered in normal persons. That point was made, although in a quite different context, by Dixon J in Porter, where his Honour observed that the diseased mind is to be distinguished from the '[m]ere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control, and impulsiveness' … And in Radford, King CJ distinguished between 'an underlying pathological infirmity of the mind ... which can be properly termed mental illness' and 'the reaction of a healthy mind to extraordinary external stimuli'."(emphasis added) (citations omitted)
16. There are a number of decisions of intermediate appellate courts which have applied the principles discussed in Radford and Falconer. By reference to Falconer, in R v De Souza (1997) 41 NSWLR 656, Powell JA (Studdert and Levine JJ agreeing), stated the matter succinctly in terms that when dealing with questions of criminal responsibility, "disease" excludes effects: "… which are more or less transitory, or are due to a temporary malfunction … or are self-induced, as, for example, as the result of the consumption of alcohol or the use of drugs."
17. In Derbin, the accused was suffering from the mental illness of schizophrenia whilst also being affected by alcohol and drugs at the time of the commission of the offence. The Court did not refer to Radford or Falconer. Rather, Mason P quoted, at [70], from R v Stones (1955) 56 SR(NSW) 25, in which the Court stated that: "… insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged. The law takes no account of the cause of insanity. If actual insanity, permanent or temporary, in fact supervenes as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause."
18. As the trial judge in this case pointed out at [87], there may be some tension between this statement and the High Court's decision in Falconer and its adoption of the statements in Radford, as discussed above. This Court is of course bound by Falconer and, in any event, the accused in Derbin had a pre-existing mental illness of schizophrenia, so that that case is distinguishable on its facts. Further, as the trial judge also commented, Mason P's observations in Derbin seemed to accept "the need for an underlying psychiatric condition apart from drug or alcohol use" for the defence of mental illness to be available.
19. We have not found it necessary to review all of the authorities to which the trial judge referred, including the Victorian and Canadian decisions. As his Honour correctly stated, those authorities support the proposition that "a drug-induced psychosis (unaccompanied by a separate psychiatric illness) does not constitute a disease of the mind as understood in the common law". However, as the appellant placed particular reliance on the observations made in Doolan and R v Pahl [2017] ACTSC 68, it is necessary to consider those decisions.
20. Doolan concerned the question whether the accused, who had murdered her infant son, had made out the defence of mental illness. Hall J referred, at [112]ff, to the principles of the defence of mental illness, citing the statement of King CJ in Radford set out above at [71], and the observations of Gaudron J in Falconer, set out above at [72]. A particular focus of the appellant's reliance on Doolan was the psychiatric evidence of Dr Westmore in that case, who was recorded in the judgment as having said that: "…most drug induced psychoses are transient, short-lived experiences. The longer a patient remains mentally ill after having taken drugs, the greater the index of suspicion that they have schizophrenia or an underlying vulnerability, a genetic vulnerability to that illness." (emphasis added)
21. The appellant then referred to the following passages of Hall J's judgment: "[132] The voluntary ingestion of prohibited drugs, including amphetamines, in itself provides no excuse or justification for unlawful or criminal conduct which is carried out under the influence of such drugs. [133] In the present case, it has been necessary to give close consideration, in particular, to the medical evidence in order to determine whether or not, on 28 July 2005, the accused acted by reason of the effects of an underlying condition resulting in a mental illness at the time she killed the deceased and to separately evaluate the effects of the ingestion of amphetamines. [134] It is clear on the evidence that the accused was affected by the ingestion of prohibited drugs in the hours before and leading up to the death of the deceased. However, on the medical evidence, it is also clear that, at least since 2001, the accused has suffered a number of episodes of drug induced psychosis and that has given rise both to a vulnerability to further psychosis and, as well, an underlying condition independent of the effects of her drug taking on and before 28 July 2005. [135] The medical evidence does, accordingly, establish that, at the time she killed the deceased, she suffered from an abnormality of mind by reason of mental illness. The abnormality of mind significantly impaired the accused's perception of events and her ability to know right from wrong. [136] It is clear from the medical evidence that, leaving aside the effects that the drugs had upon the accused, she could not reason with a moderate degree of composure in the state that she was in on the day the deceased died. [137] The medical evidence … does establish the underlying condition to which I have referred from which the accused suffered, quite apart from the effect of the drugs that she had taken, whether they would have affected her capacity to reason to a very marked extent. [138] Apart from evidence given by Professor Greenberg, the other medical evidence does not go so far as to establish that the accused did not have sufficient awareness of what she was doing when she placed the baby in the bath containing water. However, the medical opinion in this case uniformly establishes that on the probabilities, the accused did not know that what she was doing was wrong, in that she could not reason with a moderate degree of sense and composure that what she was doing was both legally and morally wrong." (emphases added).
22. As explained below, the appellant's reliance on Doolan revolved around what he contended was an acceptance both legally and medically that a vulnerability to psychosis as a result of the ingestion of drugs is evidence of a mental illness for the purposes of the defence, such that the defence should have been left to the jury.
23. The appellant also relied upon the decision of the Supreme Court of the ACT in Pahl. In that case, Murrell CJ was concerned with the defence of mental impairment for the purposes of the Criminal Code (ACT). Mental impairment is defined in s 27 of that Act to include mental illness. "Mental illness" is defined, relevantly, in the following terms: "27 Definition - mental impairment … (2) In this section: mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli. (3) However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur." This definition substantially, albeit not precisely, reflects the test in Radford.
24. The Criminal Code (ACT), s 28 states the test for mental impairment and criminal responsibility, relevantly, as follows: "28 Mental impairment and criminal responsibility (1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that - (a) the person did not know the nature and quality of the conduct; or (b) the person did not know that the conduct was wrong; or (c) the person could not control the conduct."
25. Paragraphs (a) and (b) of the definition accord with the M'Naghten definition. Paragraph (c) adds a further descriptor of what constitutes mental impairment for the purposes of criminal responsibility in the ACT legislation.
26. Murrell CJ observed, at [117], that the distinction drawn in Radford and Falconer between the effect of external factors on a healthy mind and circumstances where the person was suffering from an underlying mental abnormality, "sits uncomfortably with contemporary understanding of mental functioning". Her Honour explained: "… if abnormal behaviour flows from psychological trauma it is often difficult to say whether the behaviour results from a pre-existing mental condition (or mental vulnerability to development of the condition) or from the impact of the external trauma on a reasonably normal mind."
27. Her Honour, at [118], referred to the effects of alcohol and other intoxicating substances, stating that: "… it is common experience that a particular type of behavioural response tends to be repeated whenever a particular individual is intoxicated by particular substance to a particular degree. Sometimes, that behaviour is psychotic. If not all individuals become psychotic in the same circumstances, then logic suggests that those who do become psychotic must have an underlying mental vulnerability to developing psychosis when intoxicated. In that sense, it could be said that they have an underlying pathological infirmity of the mind."
28. Her Honour then posed the question required by the definition of "mental illness" in the legislation, namely whether "such an underlying pathological infirmity of the mind give[s] rise to a defence of mental impairment".
29. Her Honour, after reviewing the authorities, including the primary judge's decision in Fang (No 3), which is the subject of this appeal, concluded, at [133]: "… (b) Most people are vulnerable to developing psychological conditions of one sort or another. The mere fact that a person is more psychologically vulnerable than others to developing a condition when exposed to an external stimulus does not mean that they lack a relevantly healthy mind. Nor does it mean that, if they choose to consume substances and then experience an adverse reaction, they should be absolved from criminal responsibility. Many people who have a psychological condition (for example, depression or anxiety) which makes them somewhat more vulnerable to external stimuli (including substances) operate quite normally within the community. For the purposes of the defence of mental impairment, generally these people can be considered to have a healthy mind. They have a reasonable level of psychological resilience and fall within the wide spectrum of psychological normality or 'health' that means that they are not mentally impaired for the purposes of the criminal law. (c) On the other hand, some people have a more serious condition, such as a psychosis, which significantly impacts upon their ability to operate normally within the community. Such a condition may be chronic and may become florid either spontaneously or when triggered by an external stimulus, including substance use. These people do not have a relevantly healthy mind. If their serious chronic condition becomes florid when triggered by substance use, the resulting florid condition is not a 'reactive condition' but a manifestation or temporary aggravation of the underlying chronic condition. (d) If a condition is 'prone to recur' when a person is exposed to external stimuli of one sort or another, then under s 27(3) of the Criminal Code, the tendency to recurrence may provide evidence of mental illness, but does not necessarily establish that the person has a mental illness. It may be some evidence of an underlying chronic condition such as a psychosis. Section 27(3) goes some way to addressing the problems associated with universal application of the 'Falconer qualification'. Not every person whose abnormal mental condition is 'prone to recur' should be considered to be mentally impaired. (e) In cases concerning substance related psychotic behaviour and the defence of mental impairment, it is useful to consider whether there is evidence of a pre-existing chronic psychotic condition (in which case, the defence may be available even if a florid psychotic episode has been triggered by substance use). It is also useful to consider whether psychotic symptoms persisted when intoxication wore off, or rapidly receded as intoxication wore off. The rapid receding of symptoms suggests that there was no underlying chronic condition and/or that the operative cause of the psychotic symptoms was the substance use, rather than any underlying chronic condition. (f) The purpose of the defence of mental impairment (community protection from the actions of those who are not morally blameworthy) is not readily applicable where an accused poses a community risk only when they make an informed choice to consume a large quantity of alcohol knowing that it is likely to result in bizarre behaviour." (emphasis added)
30. It will be apparent from the emphasised portion of para (b) above that the appellant sought to gain support for his argument that the defence of mental illness should have been left to the jury from Murrell CJ's acknowledgement that persons may be "vulnerable to external stimuli".
31. As mentioned earlier, the appellant did not dispute that the trial judge had correctly stated the law, but rather that his Honour erred in finding that there was no evidence to go to the jury on the question whether he was suffering from a mental illness when he stabbed the deceased. That question must be determined by reference to the legal test for mental illness and the test as to the sufficiency of evidence required for the defence of mental illness to be left to the jury.
32. The legal test for whether a person suffered from a mental illness at the time of the commission of a crime is that stated by Falconer, adopting the passages from Radford discussed above at [66]-[71]. In essence, it must be established that there is a defect of reason in the M'Naghten sense which results from "an underlying pathological infirmity of the mind": see Radford at 274; Falconer at 53.
33. The difficulty which has arisen in the cases, and which was recognised in both Radford and Falconer, is where a person suffers from a temporary disorder of the mind associated with the ingestion of intoxicating substances. In those cases, the question is whether the person suffered from a mental illness in the legal sense or whether the person was acting under an external stimulus such as drugs or alcohol but was otherwise of sound mind.
34. In both Radford at 274 and Falconer at 54, there is an acceptance that there will be a mental illness in the legal sense where the mental disorder is "prone to recur". It is in that context that King CJ in Radford, as endorsed by the High Court, referred to "external factors" operating on an "otherwise healthy mind". In part, it was this aspect of the concept of mental illness with which Murrell CJ was dealing in Pahl in the passages set out above. Her Honour stated, by reference to the qualifying provision in the Criminal Code (ACT), s 27(3), that a tendency to recurrence may be evidence of a mental illness. Her Honour was of the view, however, that a tendency to recurrence does not necessarily establish that the person has a mental illness. To that extent, her Honour's view departs from the statements in Radford and Falconer which we have already discussed. In those cases, it was stated that a proneness to recurrence meant that there was a mental illness, whereas on her Honour's view, a proneness to recurrence was an evidentiary matter in determining whether there was a mental illness.
35. As to the balance of her Honour's reasons and contrary to the appellant's submissions, there is nothing in her observations that is of assistance to the appellant, including her reference, at [117], to current understandings of "mental functioning" sitting uncomfortably with the distinction drawn in Radford and Falconer between an external stimulus on a healthy mind and an underlying mental illness. Significantly for the appellant's argument, at no stage did her Honour elevate vulnerability to psychosis in a person who has ingested drugs or alcohol, to a mental illness.
36. The same may be said of the observations of Hall J in Doolan. In Doolan, there was evidence that the accused had suffered a number of episodes of drug-induced psychoses prior to the occasion on which she killed her son, which gave rise to a vulnerability to further psychosis. The trial judge was satisfied that quite apart from the effect of the drugs she had taken on the night and "whether they would have affected her capacity to reason", the accused had an underlying condition that meant that "she could not reason with a moderate degree of composure". His Honour was satisfied therefore that the defence of mental illness was available to the accused. His Honour did not find that the appellant's vulnerability to "further psychosis" as a result of the drugs she took was a 'mental illness', as the appellant in this case contended.
37. It may be that, at some point, the observations in Radford and Falconer as to the tendency of a mental disorder, present at the time of the offending, to recur will have to be considered having regard to the "contemporary understanding of mental functioning". However, that could only be on the basis of expert evidence. Significantly in this case, there was no evidence of any such tendency or of any recurrence, as discussed later in these reasons.
38. There was no dispute on the medical evidence that the appellant was suffering from a drug-induced psychosis at the time that he stabbed Mr Huang and that he probably did not appreciate that what he was doing was wrong. However, the authorities are clear that that is not sufficient to demonstrate that a person is suffering from a mental illness for the purposes of the common law defence. This leads to the question of what mental illness the appellant was suffering, if any.
39. The appellant contended, relying on the evidence of Dr Nielssen in particular, that there was evidence that he had an "underlying vulnerability to psychosis" such that the defence of mental illness should have been left to the jury. However, on questioning from the bench, the appellant accepted that he was not able to specifically identify the underlying mental illness from which he was suffering and conceded that neither could the psychiatric experts. Nonetheless, he contended that the expert evidence identified that he had an "underlying susceptibility, vulnerability to develop a psychosis if there was one triggered by an external stimuli" and that that was sufficient for the defence of mental illness to be left to the jury.
40. The expert evidence was consistent in that it accepted that some people are more vulnerable to developing a dependence upon drugs and to the occurrence of psychosis with the long term use of drugs. "Long term" for this purpose was accepted to be "months". Dr Nielssen, upon whose evidence the appellant placed particular emphasis, considered that the appellant had "an underlying condition", which he described as "an underlying vulnerability to develop psychotic illness". Dr Allnutt gave evidence that there was early evidence-based research indicating that the long-term ingestion of methamphetamines caused brain damage. In Dr Allnutt's opinion, if symptoms of psychosis "persist longer than a month then that is consistent with an independent, almost illness process happening".
41. The appellant thus placed emphasis on the fact that the psychiatrists had given evidence that different people have different susceptibilities to drugs and other intoxicating substances. In this regard, the appellant submitted that the decisions in Doolan and Pahl were directly on point and supported his case that an underlying vulnerability to psychosis constituted, or could constitute, a mental illness for the purposes of the defence of mental illness. For the reasons stated above, we do not accept that submission.
42. As already indicated, the question for the trial judge was whether there was some evidence from which it could be inferred that there was a reasonable possibility that the appellant was mentally ill, having regard to the meaning of that term for the purposes of the defence of mental illness. That question was essentially an evidentiary one. In this regard, it was necessary for the trial judge to ascertain whether there was evidence to support the views expressed and opinions given by the psychiatrists. It was also necessary to understand whether, given the medical evidence, the appellant was suffering from a mental illness in a legal sense.
43. One of the significant factors to which each of the psychiatrists referred in considering whether the appellant was suffering from a mental illness was the history he gave them of having suffered from auditory hallucinations before and after the stabbing incident. The psychiatrists considered the continuation or recurrence of aspects of a disordered mental state in the form of continuing hallucinations to be relevant to the question whether the appellant was suffering from a mental illness at the time of the stabbing incident. Had there been some evidence of this kind, the appellant would have had a basis upon which to argue that the defence of mental illness ought to have been left to the jury.
44. The appellant also gave a history of having been prescribed anti-psychotic medication in the months prior to the murder. This aspect of the expert evidence was, as we have indicated, subject to a ruling under the Evidence Act, s 136.
45. The difficulty for the appellant, therefore, was that there was no evidence that he was experiencing auditory hallucinations either in the period before or after the stabbing. His wife did not give such evidence. Nor was there anything in the appellant's Justice Health records to indicate that he had reported experiencing auditory hallucinations, or that he had been observed to exhibit unusual behaviour, which might be taken as an indication of ongoing mental health problems. The records of the appellant's general practitioner, which were in evidence, did not record that he had been prescribed anti-psychotic medication during this period, and there was no evidence that he had been to see a psychiatrist.
46. The appellant did not give evidence and there was no objective evidence, such as might have been revealed on an MRI, of changes to the brain that may have indicated the presence of a mental illness. At its highest, the evidence was that the appellant had exhibited behavioural changes, including a tendency to fly into a rage, in the months before the murder. However, his wife's evidence in this regard was quite general, as was her evidence that the appellant would speak "nonsense". Ms He did not, and was not asked to, elaborate on what she meant by this. In our opinion, her evidence did not give rise to an available inference that the "nonsense" to which she referred was the appellant responding or otherwise talking to hallucinatory voices. It could have been, for example, because he had just taken drugs. This, of course, is a matter of speculation only. The point is there was no evidence that he had suffered hallucinations in the months before the stabbing.
47. None of the psychiatrists commented on Ms He's evidence as to the appellant's conduct in the period leading up to the stabbing. To the extent that the medical experts focussed on the appellant having had hallucinations in the periods before and after the stabbing, their views were based on an unproven history. Nor was there a history of mental illness, either personally or in his family.
48. As we have explained, given the s 136 limitation on the evidence of the psychiatrists, and the limited extent of the evidence given by the appellant's wife, there was no evidence such that the defence of mental illness was fairly open: see Ayoub at 515; and no evidence from which it could be inferred that there was the reasonable possibility that the appellant was mentally ill for the purposes of the defence: see, by analogy, Woodbridge at [73]. The suggestions in the psychiatric evidence that some persons who ingest drugs over a period of time may be vulnerable to developing a psychosis was not sufficient either as a matter of diagnosis to establish a disease of the mind, or of the appellant suffering such a disease of the mind at the time he stabbed Mr Huang.
49. The appeal should be dismissed.

Orders

1. The Court makes the following orders: (1) Grant leave to appeal. (2) Appeal dismissed.

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