R v Murray

Immediate context

1. Mr Graeme Leslie Murray (the accused) is charged with two counts of murder. I understand there to be no dispute that on 13 August 2021 he stabbed both of his parents to death. I also understand that the primary defence to be relied upon at trial is that, pursuant to s 28 of the Act, he is not criminally responsible for his fatal actions.
2. A trial by judge alone is listed to commence with the formal arraignment of the accused on Monday, 6 May 2024. The parties and I have agreed that, speaking generally, the elements of the primary defence need to be clear between Bench and Bar table before embarking on the evidence. Furthermore, in the particular circumstances of this trial, how one interprets the section may have a significant outcome regarding the establishment or not of the defence, or indeed whether the conduct of a trial (as opposed to, perhaps, a hearing pursuant to s 31 of the Act) is appropriate at all.
3. For those reasons, a directions hearing was urgently conducted on Friday 26 April when a notice of motion was filed by the Crown, on the controversy first coming to light; and I received very helpful written and oral submissions from both parties on 29 and 30 April 2024.

Broader context

1. The broader context for consideration of this question of statutory interpretation is as follows.
2. Between 1843 and March 2021, the bases upon which a person could be exculpated from a criminal offence by way of a special verdict (that exculpation leading nevertheless to their detention, almost always) founded upon their mental state were legally stable and tolerably clear. Paraphrasing M'Naghten's case [1843] EngR 875; (1843) 10 Cl & Fin 200; (1843) 8 ER 718, it was incumbent upon an accused person to establish on the balance of probabilities that: 1. The accused 2. at the time of the allegedly criminal act 3. was suffering from a defect of reason 4. arising from disease of the mind 5. that had the effect that they did not know either: 6A. the nature and quality of the act they were doing, or 6B. that what they were doing was (morally) wrong. (The correctness of this thumbnail sketch was agreed to by both parties before me.)
3. That common law test was contained in the statutory predecessor of the Act, but not otherwise altered.
4. A noteworthy aspect of the test was that, for the defence to be established and the special verdict returned, it needed to be established on balance that, at the time of the allegedly criminal act, the accused was suffering not only from "a defect of reason", but also that that defect arose from "disease of the mind".
5. As I have said, that test pertained for many decades, and was largely of ready application. In its terms, it ruled out the straightforward effect of intoxication with a psychoactive substance such as alcohol or a prohibited drug ("a substance"), because the effects of such substances do not constitute of themselves a disease of the mind.
6. In my experience, however, difficult questions could sometimes arise if a mental state was said to have been the possible result of the combination of the effect of a psychoactive substance after intoxication had subsided and a certain state of mind on the part of an accused. In particular, there was a question whether a vulnerability or susceptibility or proclivity to disease (as opposed to a disease itself) on the part of an accused person, combined with the effects on their mind of a substance that extended beyond mere intoxication, could found the defence.
7. That question was answered definitively in the negative in the decision of Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210. In that judgment of the Court, it was made clear that a pre-existing disease was required, not a mere vulnerability to same: see [95]-[105].
8. As I have said, in 2021 the common law test was replaced by that found in the Act, after a period of extensive consultation. The relevant sections are as follows: 4 Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if - (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons - (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by - (a) the temporary effect of ingesting a substance, or (b) a substance use disorder. ... 28 Defence of mental health impairment or cognitive impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person - (a) did not know the nature and quality of the act, or (b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). (2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities. (3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect. (4) In this Part, act includes - (a) an omission, and (b) a series of acts or omissions.
9. Those sections replicated much of the common law offence. But some changes are immediately noteworthy.
10. First, the concepts of "defect of reason" and "disease of the mind" have been replaced by the basal concepts of a mental health impairment and a cognitive impairment.
11. Secondly, the former is defined as being established if three kinds of disturbance are all established, to be found in s 4(1).
12. Thirdly, s 4(3) provides two explicit "carveouts" from the definition of a mental health impairment. But both carveouts, it can be seen, only operate if the purported mental health impairment is "caused solely by" another factor. In the case of s 4(3)(a), for the carveout to operate the factor that must be the sole cause of the purported mental health impairment is "the temporary effect of ingesting a substance".

Matters not requiring decision

1. It is convenient now to set out some matters that do not require a decision by me, because I understood them to be uncontroversial between the parties.
2. First, the meaning and effect of s 28 is uncontroversial, and will not be discussed further.
3. Secondly, no controversy about the meaning of a cognitive impairment arose, and it does not arise on the facts.
4. Secondly, on the facts of this case s 4(3)(b) does not require consideration.
5. Thirdly, there are at least three first instance judgments of this Court to the effect that for either carveout in s 4(3) to operate, the facts underpinning that carveout must be established by the Crown, on the balance of probabilities: see R v Miller [2022] NSWSC 802; R v Sheridan [2022] NSWSC 1669; R v Patterson (No 6) [2024] NSWSC 458. That formulation, in my respectful opinion, could also constitute an alteration to the defence at common law, because the accused bore the onus on the balance of probabilities with regard to all aspects of it.
6. In written submissions, the Crown submitted that those cases were wrongly decided, and that the onus of "disproving the carveout" falls upon the accused, on the balance of probabilities. But I did not understand the parties to be asking me to come to a firm view, at least at this stage of the trial, about that question of onus, as opposed to the parameters of the elements of the carveout (whoever it may be who must prove it) in s 4(3). Even so, in this judgment I express my view about it.

Two Crown theses

1. The Crown submitted that the section must be read in two ways, each of which was resisted by the accused.
2. First, s 4(2)(d) constitutes a mandatory exclusion. In other words, if an accused person is suffering from a putative mental health impairment that arises from a substance induced mental disorder that is temporary, then the accused does not fall within the section, and cannot rely upon the defence.
3. Secondly, relatedly but separately, s 4(3)(a) should be read as meaning that, in order for that carveout to fail, any other cause of a mental health impairment (apart, that is, from the factor of the temporary effect of ingesting a substance) must be "significant for clinical diagnostic purposes". To attempt to express the Crown thesis more comprehensibly (and leaving out questions of onus for the time being): if the only other cause for a mental health impairment pointed to by an accused person, above and beyond the temporary effect of ingesting a substance, is not significant for clinical diagnostic purposes, then the carveout will succeed, a mental health impairment is not established, and the defence must fail.

Crown submissions about s 4(2)(d)

1. I turn first to the more fundamental structural question, as follows (and in the following discussions I shall often leave out questions of onus, for the sake of clarity of statement of elements). If the three-pronged definition of a mental health impairment in s 4(1) is established by the accused on balance, and neither carveout in s 4(3) is established by the Crown on balance (on the current state of the law), but the mental health impairment possessed by the accused does arise from a substance induced mental disorder that is temporary; pursuant to s 4(2)(d), can that fact disentitle the accused from relying successfully upon the defence?
2. The Crown submitted in writing that no segment of s 4 can be analysed on its own; the whole section must be understood in the context of s 28, and both of the segments under discussion must be understood in the context of the pre-existing common law defence, and the relevant extrinsic materials.
3. Orally, the Crown reviewed a number of cases at first instance in this Court pertaining to the application of the section: R v Jawid [2022] NSWSC 788; R v Miller; Miller v R [2024] NSWCCA 51; R v Thompson (No 1) [2022] NSWSC 1044; R v EC [2022] NSWSC 1088; R v Hotoran [2023] NSWSC 1249. The point was made that, before the approach of Dhanji J in the trial that featured R v Patterson (No 6), as demonstrated by a written direction provided to the jury in that matter, MFI 28 (placed before me, and attached to this judgment), neither psychiatrist, lawyer, nor judge had adopted an approach to the section that regarded s 4(2) as being anything other than definitional, and therefore implicitly exclusionary.
4. It was said that learned authors have expressed the opinion, without feeling the need for elaboration, that the section as a whole does not significantly alter the common law: see generally, Anina Johnson, Dr Kerri Eagle and Corrie Goodhand, Crime and Mental Health Law in NSW: Supplement to the 3rd edition (2021, LexisNexis). And yet, it was said, unless s 4(2)(d) plays an excluding role from the definition of mental health impairment, the common law defence may indeed be altered, in that Fang v R may well be reversed.
5. Speaking generally, the Second Reading Speech evinces no intention whatsoever to alter the common law defence. Even so, it was accepted that the Second Reading Speech says nothing explicit about how one is to understand s 4(2).
6. The Crown submission was that no NSW Law Reform Commission (LRC) report prior to the passage of the new Act assists in the task of statutory interpretation.
7. In reply, it was clarified that the Crown submission was that, if an accused person fell within the definition of a mental health impairment to be found in s 4(1); and also happened to fall within s 4(2)(a), (b), or (c); even so, if they also fell within the putative exclusion in s 4(2)(d) (by way of the mental health impairment having arisen from a substance induced mental disorder that was temporary), then they would be excluded from having possessed a mental health impairment.
8. In other words, the submission was that s 4(2)(d) would override or "trump" the fact that an accused fell within any one of the first three paragraphs of s 4(2). It was said that the implicit negative proposition in s 4(2)(d) must have some excluding "work to do".

Crown submissions about s 4(3)(a)

1. I turn now to the second thesis.
2. In written submissions, it was said that the new statute has not significantly changed the common law defence.
3. In particular, it was said that Fang v R remains good law.
4. It was also said that there are very sound reasons of policy for that position, as discussed by Johnson J in R v Fang (No 3) (2017) 264 A Crim R 554 at 575; [2017] NSWSC 28.
5. It was said that the Second Reading Speech of the Attorney General showed no intention to alter significantly the common law defence.
6. The submission was that, however, after the LRC expressed itself in Report 138, a deliberate decision was made by Parliament to depart from the proposed legislation, in order to ensure the exclusion of a temporary drug induced psychotic disorder from the definition of a mental health impairment: New South Wales, Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system: Criminal responsibility and consequences, (May 2013).
7. The submission was made that, consistent with Fang v R, one must read into the idea of another cause, for the purposes of the chapeau of s 4(3), the requirement that that other cause be "significant for clinical diagnostic purposes".
8. The use of the adverb "solely", it was said, was so as to ensure that reliance on the defence in the context of a separate pathology as discussed in Fang v R should not be excluded. But the point was repeated that it was not intended to permit the accused to point to any other cause, whether pathological or not, in order to "defeat" the carveout.
9. It was said that, by definition or perhaps a process of elimination of causes, a person who develops an ongoing psychosis that extends beyond the period of intoxication, as a result of the ingestion of a substance that would not usually engender such an outcome, could always be said to have possessed some other inherent mental attribute. That would mean that the carveout could never be applied to such a person, wherever the onus falls. But that, it was said, could not have been the objective intention of Parliament.
10. Finally, as I have said, it was submitted in writing that decisions placing the onus of proving the matters in s 4(3) are wrongly decided, and that that onus falls upon an accused person, to be discharged on the balance of probabilities.
11. Orally, with regard to both controversies, the overarching point was emphasised that the section must be read as a whole.
12. Regarding s 4(3)(a) specifically, my attention was invited to the Second Reading Speech in the Legislative Assembly at Hansard p 2350, at the fifth complete paragraph of which the following appears: The requirement that the disturbance be "significant for clinical diagnostic purposes" means that the temporary or ongoing disturbance must be serious enough to result in a mental health diagnosis. Sadness, grief or anger would not suffice for the purposes of meeting the definition. The temporary effect of taking drugs or having a substance-use disorder is expressly excluded from the definition. This means that a person who commits a crime while on drugs or intoxicated, with no other clinically significant mental health impairment or cognitive impairment, will not be a person with a mental health impairment or cognitive impairment for the purposes of the bill. (See New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 June 2020 at 2350).
13. The submission was that those references must inform the interpretation of s 4(3), and that the last quoted sentence in particular demonstrates that only a clinically significant mental health impairment will be sufficient to constitute "another cause" for the purposes of that provision.
14. Separately, as I have said, the submission was that no report of the LRC assists the task of interpretation. Any submission to the contrary was resisted, on the basis that, to the extent that significant changes were to be made in accordance with any such report, they were clearly identifiable as such.
15. Orally, the thesis that s 4(3)(a) can only be interpreted with an outcome consistent with Fang v R was emphasised.
16. Finally in oral submissions about this thesis, it was accepted that neither party in this trial was asserting that, at the time of the alleged killings, the accused was actually frankly intoxicated by a substance (as opposed to suffering from some other, post-intoxication effect of it).

Determination regarding s 4(2)(d)

1. In my respectful opinion, the thesis of the Crown about the excluding role of s 4(2)(d) must be rejected. In other words, I respectfully agree with the approach adopted by Dhanji J in the written direction in the trial of R v Patterson. I say that for the following reasons, in general conformity with the submissions for the accused.
2. First, I accept that s 4(2) does not constitute a carveout, or indeed an explicit "carve in"; by the latter, I mean a mandatory inclusion within the definition of mental health impairment. I believe that it provides nothing more than illuminative examples. The chapeau speaks merely of disorders from which a mental health impairment may arise, not disorders from which such an impairment must, or will always, arise. Its language therefore makes clear that it is not exclusive, or even mandatorily inclusive. In fact, by way of its reference to "other reasons", the chapeau does not even limit the source from which a mental health impairment may arise to a "disorder". In structure, it is amorphous indeed.
3. Secondly, the proposition in the subsection is that an impairment may arise from a substance induced mental disorder that is not temporary. But that permissive statement does not play a prohibitory role with regard to the contrary, as a matter of grammar or logic. To seek to express my analysis simply: the fact that an impairment may arise from a state of affairs that is not temporary, does not mean that the same impairment cannot arise from a state of affairs that is temporary. The former permissive proposition does not preclude the latter antithetical proposition as a possibility.
4. Thirdly, more generally, if Parliament had intended s 4(2)(d) to operate as a carveout, it could readily have said so explicitly. And the structure could have conveniently followed that of the two explicit carveouts that do appear, by way of s 4(3). It would have been a very simple thing for Parliament to have added: Section 4(4): A person does not have a mental health impairment for the purposes of this Act if the person's impairment arises from a temporary substance induced mental disorder. But Parliament did not.
5. Fourthly, the "temporariness" of a substance induced mental disorder under consideration cannot have significant weight, bearing in mind that, by way of s 4(1)(a), certain temporary disturbances are explicitly included.
6. Fifthly, returning to the chapeau of s 4(2), once the disorder from which a mental health impairment has arisen falls within s 4(2)(a), (b), or (c), then the permissive provision has been fulfilled. So much is demonstrated by the use of the phrase "any of the following disorders" at that location.
7. Sixthly, even if I am fundamentally wrong in my approach to s 4(2)(d), and it does play some excluding role with regard to what otherwise may be a mental health impairment, I do not believe that it overrides or trumps a mental health impairment that also falls within the preceding subparagraphs of s 4(2). In other words, if a particular disorder could be characterised as fitting within both one of the first three subparagraphs, and also s 4(2)(d), to the extent that the first three subparagraphs permit of inclusion, and the last operates as exclusion, I cannot accept that the last has overriding force.
8. Seventhly, it is true that many first instance decisions show that many psychiatrists, lawyers, and judges have seemingly assumed, sub silentio, that s 4(2) generally may play some more powerful, definitional role. But without descending to analyse each of the cases to which I was invited, my understanding is that in none of those cases was this issue of statutory interpretation squarely raised for resolution. Indeed, it is noteworthy that some of those cases were hearings by way of s 31 of the Act, which, by definition, do not feature any dispute at all. In my respectful opinion, on the material placed before me, the first case in which this issue was squarely confronted was R v Patterson.
9. Eighthly, it is true that this reading may have the potential to expand the defence. It may also be that such an outcome was subjectively not intended by certain stakeholders in the reform process. But I do not think that that state of affairs can undercut the clear language and statutory structure of this reworking of the defence.
10. In summary: I consider that, in order for the defence to succeed, the tribunal of fact must be satisfied that all three attributes of a mental health impairment have been established on balance, in accordance with s 4(1).
11. Thereafter, the tribunal of fact must consider whether the carveout in s 4(3) operates with the effect that the accused did not have a mental health impairment (I shall discuss the meaning of s 4(3)(a) and the question of onus shortly).
12. As Dhanji J explained to the jury by way of the notes (as opposed to the elements) in MFI 28 in the trial of R v Patterson, s 4(2) provides illumination about possible disorders that may underlie the disturbances collectively qualifying as a mental health impairment. Section 4(2) does not contain mandatory including or excluding elements of the defence. In particular, s 4(2)(d) does not prohibit a mental health impairment as otherwise defined from arising from a temporary substance induced mental disorder.

Determination regarding s 4(3)(a)

1. Turning now to the second thesis of the Crown, I begin by expressing my respectful opinion that the question of onus relating to the carveout in s 4(3) is contestable. That is very largely because the accused bore the onus of establishing the common law defence on the balance of probabilities in its entirety. To express that another way, I consider that, with regard to the common law defence, it was incumbent upon the accused to establish on balance that, quite apart from the effect of a substance, there was an underlying pathological infirmity of the mind operating at the crucial time that substantially contributed to the consequential elements of the defence: see Radford v R (1985) 20 A Crim R 388 at 396; (1985) 42 SASR 266; as for causation in criminal law, see Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27; Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11.
2. But the point is soundly made, with respect, by Garling J in R v Sheridan [20]-[21] and Dhanji J in R v Patterson (No 6) at [5], that, sitting at first instance, I should only decline to follow those decisions if satisfied that they are clearly wrong, or perhaps that there are compelling reasons not to follow them. I am not satisfied of either proposition, with the result that, at the trial, I would direct myself identically.
3. Turning to the central thesis of the Crown about s 4(3)(a), I do not accept that one should read into the carveout a requirement that any other cause for the mental health impairment, said to nullify the carveout, must be significant for clinical diagnostic purposes. That is so for the following reasons.
4. First, neither those words, nor anything like them, appear in the subsection.
5. Secondly, Parliament has chosen to use the phrase "caused solely by" without further elaboration. The adverb means what it says: the temporary effect of ingesting a substance must be the only, or single, or exclusive, cause of the mental health impairment. The structure tells one nothing about the attributes of the "other cause", and certainly says nothing restrictive about its nature.
6. Thirdly, having said those things, that does not mean that the putative other cause for the mental health impairment could be something completely external to the mind of the accused. It must be, I think, some aspect of their brain, or mind, or mental or emotional functioning. Were it otherwise, the potential nullification of the carveout would be absurdly broad.
7. Fourthly, I do not consider that the portion of the Second Reading Speech to which I was invited and that I have extracted above is to different effect, for the following reasons.
8. Read in context, I believe that the first two sentences are discussing the fundamental definition of mental health impairment, not the parameters of the carveout.
9. As for the last two sentences, I believe that they are making the utterly orthodox point that simple intoxication, without more, can never constitute a mental health impairment. The phrase in the last sentence "while on drugs or intoxicated", surely refers to being actually intoxicated by prohibited drugs, or drunk as a result of alcohol. No doubt, with respect, the Attorney General was at pains to make clear that nothing had changed with regard to actual intoxication: without more, it could not be a disease of the mind at common law, and without more it cannot be a mental health impairment.
10. But what is under discussion here is something different; namely, the proposition that another cause that excludes the carveout must of itself have one of the defining attributes of a mental health impairment. That is another proposition entirely, one which, as I have said, I do not accept.
11. In short: I reject the second thesis as well. I consider that the words of s 4(3)(a) set out the carveout from the prior establishment of the definition of a mental health impairment, and the circumstances in which it can be nullified by an accused person.

Reflection

1. Speaking generally, I accept that these outcomes may have the practical effect in some cases of expanding the defence. I also accept that this outcome may cut across some of the discussion of underlying policy aims of the common law defence to be found in the judgment of Johnson J in R v Fang (No 3). Relatedly, I think it possible that this outcome was not subjectively intended by some persons involved in the development of the new legislation. But none of that means that, when considering the undoubtedly new structure and terminology of the defence, one can shy away from the objectively ascertainable intention of Parliament arising from the words actually used in the section.
2. Finally, reflecting more globally now on the text, context, and purpose of the new statutory regime regarding the defence: the context was a determination to revisit the common law defence, consult widely, thereafter place it in statutory form, alter its fundamental building blocks, and have it apply to all criminal proceedings on indictment (at the least). Its purpose, I accept, cannot be demonstrated by extrinsic materials to have been to alter particularly the understanding of the intersection between post-intoxication drug-induced mental conditions, inherent mental conditions (broadly defined), and criminal liability. But, to be a little repetitive perhaps, the absence of extrinsic material supporting that specific purpose cannot, in my opinion, detract from the text, in the sense of the clear structure of the section, and the words Parliament chose to use within it.

Conclusion

1. In short: as the tribunal of law in the judge alone trial, I propose to "direct myself" as the tribunal of fact that s 4(2)(d) does not play an excluding role with regard to an otherwise established mental health impairment. At most, I would reflect upon it as the latter tribunal as one of a number of illuminative examples.
2. Secondly, I propose to direct myself that the Crown bears the onus on the balance of probabilities of establishing the proposition in s 4(3)(a).
3. Finally, I propose to direct myself 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 him possessing an already established mental health impairment, then the carveout in the same subparagraph would fail, and that impairment would fall within the defence. Patterson MFI 28 (111486, pdf)

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