JOHNSON J: The Accused, Zhen Fang, is standing trial for the murder of Ting Huang in 2014. The Accused seeks to rely upon the partial defence of "substantial impairment" under s.23A Crimes Act 1900.
The Crown has called in its case Dr Yvonne Skinner, forensic psychiatrist. The Accused is to call in his case Dr Olav Nielssen and Dr Stephen Allnutt, both forensic psychiatrists. The evidence of the psychiatrists will touch upon the issue of substantial impairment and other issues.
In the course of cross-examination of Dr Skinner yesterday afternoon by Senior Counsel for the Accused, objection was taken by the Crown to a question put to the witness. The objection has led to submissions being made by counsel concerning the permissible areas of evidence which may be given by expert medical witnesses where substantial impairment is raised.
Section 23A Crimes Act 1900 is in the following terms:
"23A Substantial impairment by abnormality of mind
(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:
(a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and
(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
(2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.
(3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section.
(4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.
(5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead.
(6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death.
(7) If, on the trial of a person for murder, the person contends:
(a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or
(b) that the person is not liable to be convicted of murder by virtue of this section,
evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.
(8) In this section:
underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind."
Section 23A(1) contains two steps. The first step (s.23A(1)(a)) involves consideration of the question whether, at the time of the act causing death, the person's capacity to understand events or to judge whether the person's actions were right or wrong or to control himself, was substantially impaired by an abnormality of mind arising from an underlying condition.
The term "underlying condition" is defined in s.23A(8) as meaning "a pre-existing mental or physiological condition, other than a condition of a transitory kind".
The second step under s.23A(1)(b) arises if the Accused establishes the first step on the balance of probabilities. The second step requires consideration as to whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
Section 23A(2) provides that "For the purposes of subsection (1)(b), [that is, the second step] evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible".
The operation of s.23A(1)(b) was considered by the Court of Criminal Appeal in Potts v R [2012] NSWCCA 229; 227 A Crim R 217 at 223-224 [32]-[35]:
"32 For the purpose of s.23A(1)(b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible: s.23A(2).
33 It has been said that the issue under s.23A(1)(b) is a task for the tribunal of fact, which must approach that task in a broad commonsense way, involving a value judgment by the jury representing the community, and not a finding of medical fact: R v Trotter (1993) 35 NSWLR 428 at 431. It is often put to juries (as it was here) that an impairment is substantial if it is such as warrants the reduction of the crime from murder to manslaughter: R v Trotter at 431; R v Ryan (1995) 90 A Crim R 191 at 195; R v Majdalawi [2000] NSWCCA 240; 113 A Crim R 241 at 243 [10]-[11]. In R v Majdalawi, Adams J observed (at 247 [36]) that the 'value judgment by the jury representing the community' to which Hunt CJ at CL referred in R v Ryan 'is a decision about culpability' and hence 'is not a medical question'.
34 The directions of Kirby J to the jury in the present case (which were not challenged on appeal) illustrate the way in which a jury is invited to determine the s.23A(1)(b) issue. Kirby J directed the jury that the distinction between murder and manslaughter 'is both a legal distinction and a moral one' (SU66). Manslaughter is regarded as 'having less culpability than murder and it is, therefore, punished less severely' (SU66). If that 'incapacity did so operate and did impair him, then his moral blameworthiness would be reduced by reason of that impairment and the appropriate verdict would be manslaughter' (SU68).
35 Section 23A(1)(b) has been described as giving rise to 'an issue which is quintessentially one for the determination of a jury': R v Hucker [2002] NSWSC 1068 at [2] (Howie J)."
Accordingly, it has been emphasised that:
1. the second step under s.23A(1)(b) involves a quintessential jury question;
2. the second step does not involve a finding of medical fact;
3. it involves a value judgment by the jury representing the community - it is a decision about culpability and not a medical question.
The Crown submitted that, although the psychiatrist witnesses may be asked questions about the sub-elements contained in s.23A(1)(a), a question cannot be asked as to whether, in the doctor's opinion, any impairment which may exist was substantial. In this respect, reliance was placed upon the judgment of Hunt CJ at CL in R v Trotter (1993) 35 NSWLR 428 at 431ff, where his Honour confined the areas where medical evidence could be given with respect to what was then described as the partial defence of "diminished responsibility".
It is important to keep in mind that s.23A was replaced in 1997, as a result of the Crimes Amendment (Diminished Responsibility) Act 1997. The 1997 Act followed examination of this partial defence by the New South Wales Law Reform Commission which recommended reforms: Report 82 (1997), "Partial Defences to Murder: Diminished Responsibility", paragraphs 3.60-3.63.
The pre-1997 version of s.23A did not have an equivalent of s.23A(2), namely, it did not contain any express prohibition on areas where medical evidence could be given.
The 1997 version of s.23 introduced such an express provision. I have been taken by Senior Counsel for the Accused to the Second Reading Speech of the then Attorney General, the Honourable JW Shaw, with respect to the 1997 Bill (Hansard, Legislative Council, 25 June 1997). The Attorney General made quite clear how this legislation was intended to operate, at least with respect to the areas of prohibition of medical opinion evidence.
The Attorney General said:
"Proposed new section 23A(1)(b) is the centrepiece of the new defence. It returns the jury to the central position of assessing the culpability of the accused person. Under the old defence of diminished responsibility, some commentators felt that the opinions of the expert witnesses - that is, the psychiatrists and psychologists - dominated the jury's decision as to whether or not the defence succeeded. The new defence returns the jury to the central role by requiring the jury to determine whether the impairment, once established, was so substantial as to warrant liability for murder being reduced to manslaughter. In coming to its verdict, the jury brings to bear the community's collective wisdom and its sense of justice.
Proposed new section 23A(2) emphasises community values. It does this by preventing expert witnesses from giving an opinion as to whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. The experts will only be able to give evidence about whether there was a substantial impairment under proposed new section 23A(1)(a).
…
… The amendments emphasise the role of the jury. They give the experts concrete tests by which to assess the impairment of the accused. They do not permit the experts to give evidence about the ultimate moral assessment which the jury must make; …"
In my view, as a matter of statutory construction and legislative intention, the current form of s.23A prohibits opinion evidence only on what I have described as the second step under s.23A(1)(b). That is the quintessential jury issue recognised in the partial defence of diminished responsibility, but now expressed with complete clarity concerning substantial impairment in s.23A(1)(b). As the Attorney General made clear in 1997, that second step was to be an area preserved solely for the jury, with medical opinion not being admissible with respect to it. This was a purpose or object of s.23A(1)(b) in the 1997 Act: ss.34, 35 Interpretation Act 1987.
I return then to the question which drew the objection to which this judgment relates.
I do not accept the Crown's submission that Dr Skinner cannot be asked questions about whether any impairment which she says existed was or was not substantial. In my view, Dr Skinner can be asked questions on that topic, no doubt in conjunction with other questions, which will seek to raise the sub-elements of the first leg of "substantial impairment" as contained in s.23A(1)(a).
Clearly, what cannot be sought is the opinion of any medical practitioner as to whether any impairment, which the medical practitioner considers existed, was so substantial as to warrant liability for murder being reduced to manslaughter.
To the extent that the objection taken by the Crown related to the expression of an opinion by Dr Skinner (on page 8 of her report of 28 July 2016) that the Accused was suffering from a substantial impairment at the time of the alleged offence, I consider that questioning on that area is permissible. That said, the sentence which contains that phrase states in full: "Thus, if drug-induced psychosis is considered an 'abnormality of mind', Mr Fang was suffering from a substantial impairment at the time the offences were committed." In that sentence, I consider that Dr Skinner has, in a compressed way, raised the question as to whether drug-induced psychosis (that is, psychosis which is said to result from self-induced ingestion of the drug methylamphetamine or "Ice") is capable of giving rise to the partial defence of substantial impairment.
That issue is affected by s.23A(3) which makes clear that self-induced intoxication by a drug is to be disregarded, for the purpose of determining whether the person was suffering from a substantial impairment. Dr Skinner appears to be raising that issue in the opening words of that sentence, but is then expressing a view which is clearly conditional upon the opening words.
I mention this expressly because the question which drew the objection from the Crown was going to remind Dr Skinner of this full sentence. There is force in the objection, if what Senior Counsel for the Accused is seeking to do is to place that sentence, in an unadorned way, before the jury.
I would uphold the objection to the use of that sentence in evidence. However, I will permit Senior Counsel for the Accused to cross-examine Dr Skinner about the components of s. 23A(1)(a), including the question as to whether Dr Skinner considers any relevant impairment to be substantial. That line of questioning is permissible, although, of course, as is clear, the witness cannot be asked questions touching upon the second leg in s.23A(1)(b).
Accordingly, I allow cross-examination of Dr Skinner in accordance with the ruling contained in this judgment.
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Decision last updated: 20 April 2018