Mental Health Impairment Defence in NSW Supreme Court

The court examined whether the defendant's actions were influenced by a mental health impairment, specifically a drug-induced psychosis, under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The court decided to leave the determination of the defendant's mental state to the jury.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] [2022] NSWSC 802 Hearing dates: 2 - 3 June 2022 Decision date: 03 June 2022 Jurisdiction: Common Law Before: Cavanagh J Decision: Defences under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and s 421 of the Crimes Act 1900 (NSW) left to the jury. Catchwords: CRIMINAL PROCEDURE — Trial — Directions to jury — Self-defence with excessive force — Mental health impairment STATUTORY INTERPRETATION — Definition of "mental health impairment" — Exclusion — Onus of proof — Whether meaning of "mental health impairment" is question of fact for the jury Legislation Cited: Crimes Act 1900 (NSW) Interpretation Act 1987 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Cases Cited: [NAME] v The Queen 243 CLR 434; [2011] HCA 14 [NAME] v Director of Public Prosecutions (NSW) [2006] NSWCA 293 Moweno Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376 R v [NAME] [2022] NSWCCA 87 R v [NAME] (No 4) [2020] NSWSC 1826 R v [NAME] (No 2) [2021] NSWSC 1542 R v Pham [2021] NSWSC 196 R v [NAME] (No 1) [2021] NSWSC 1292 R v Tonga [2021] NSWSC 1064 [NAME] v Minister of Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Texts Cited: [NAME] and [NAME], Crime and mental health law in New South Wales: Supplement to the 3rd edition (2021, LexisNexis Butterworths) New South Wales, Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system: Criminal responsibility and consequences (May 2013) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 June 2020 Category: Procedural rulings Parties: [NAME]: Counsel: [redacted] [NAME] ([NAME])

Solicitors: [redacted] Legal Aid NSW ([NAME]) File Number(s): 2020/182872 Publication restriction: None

Judgment 1. On 20 June 2020, the [NAME] killed [NAME]. He did so by strangling her shortly after 1am.

2. Prior to that time there was no history of violence or even disharmony between the two. They appeared to be in a normal relationship. The only explanation for the conduct of the [NAME] is that he was suffering from an episode of psychosis at the time. There is a significant issue as to the relationship between the [NAME]'s drug taking and the development of that psychosis.

3. The [NAME] was charged with the murder of [NAME]. As outlined by the [NAME] and the [NAME] at the commencement of the trial, one of the principal issues (but not the only issue) is the defence raised by the [NAME] under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act).

4. Prior to the death of [NAME], the [NAME] had been a regular user of drugs. He had taken LSD approximately 30 times and regularly smoked cannabis. [NAME] was not a user of drugs at all.

5. The [NAME] last consumed LSD (prior to the death of [NAME]) on 9 June 2020, being 11 days prior to his killing of [NAME]. Following his arrest, he undertook testing for the purposes of determining the level of drugs in his body. The [NAME] called evidence from a forensic pharmacologist, [NAME], as to the meaning of the certificate obtained, showing the results of those tests. According to [NAME] (and there is no evidence to the contrary or any dispute about this), no LSD (Lysergic Acid Diethylamide) was detected in his system.

6. Further, the level of cannabis (Delta-9-tetrahydrocannabinol) was so low that according to [NAME] it was certainly not psychoactive at that concentration. According to [NAME], the level in his system indicated that he had not consumed a large quantity of cannabis recently. [NAME] explained this meant that the [NAME] had not been smoking a large amount of cannabis in the week to two weeks prior to the testing.

7. The [NAME] thus agrees that the [NAME] was not intoxicated with drugs at the time of the act which caused [NAME]'s death. This is not a case like other cases where the [NAME] person had just taken drugs and was plainly acting under the influence of those drugs when the offending occurred.

8. Rather, at the highest for the [NAME], it is a case where the [NAME] submits that the [NAME] was suffering from a drug induced psychosis (which is a form of psychotic disorder) on 20 June 2020, which continued for, on one view, only a month or two after 20 June 2020. Since that time, he has not taken any further drugs and it may be that he has not suffered any further psychotic episodes. He ceased medication in January 2021 and has not had any relapses since that time.

9. The [NAME] says that that which happened on 20 June 2020 was a first episode psychosis, likely to be indicative of an underlying schizophrenic condition. On the [NAME]'s case, he had been showing signs or symptoms for weeks or months prior to 20 June 2020 which, with the benefit of hindsight, and having regard to the psychotic episode on 20 June 2020, were indicative of an underlying schizophrenic condition. In other words, the taking of drugs over a period acted upon a pre-existing vulnerability leading to the first psychotic episode on 20 June 2020 indicative of schizophrenia. Although there have been no psychotic episodes since, on the [NAME]'s case, there may be a relapse at any time.

10. During the course of the trial, I was informed that at the end of the evidence the parties would be making submissions as to the directions I should be giving to the jury. After the evidence concluded I received written submissions from the [NAME] and the [NAME], although it was not clear what the [NAME] wished me to do. The [NAME]'s submissions were to the effect that the [NAME] had established the mental health impairment defence under the MHCIFP Act. Bearing in mind that that is a matter for the jury, I asked the [NAME] whether he was seeking a directed verdict and he said that he was not. However, it emerged during oral submissions that the [NAME] was seeking that I give a direction to the jury that, in the circumstances of this case, there really was no decision for the jury to determine because the effect of my direction would be that the [NAME] would be entitled to a special verdict (I will come to the other issue raised in the submissions, being whether self-defence with excessive force should be left to the jury, later in this judgment).

11. The issue raised is an issue as to the proper construction of s 28 of the MHCIFP Act and, in particular, the proper construction of the definition of mental health impairment as set out in s 4 of the MHCIFP Act.

12. It is an important issue as, having regard to the evidence which has been adduced, the [NAME] may accept that the defence under s 28 of the MHCIFP Act would be established subject to the jury being satisfied that the [NAME] had a mental health impairment at the time of strangling [NAME].

13. The meaning of mental health impairment for the purposes of the MHCIFP Act is set out in s 4 of the MHCIFP Act.

14. Section 4 is in the following terms: 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.

1. There are matters of construction which the [NAME] submits must be determined by me prior to any directions given to the jury. They are:

1. The [NAME] submits that, on its proper construction, s (4)(3) could not apply because he has satisfied s 4(2). Subsection 4(3) could only apply to a situation where the [NAME] was suffering from the intoxicating effect of the drugs at the time of the offence rather than one of the disorders set out in s 4(2). Alternatively, the [NAME] submits that the condition on which the [NAME] relies (if it is supported by the evidence) would not satisfy s 4(3) and I should so direct the jury. There being no dispute that there were no drugs in his system at the time, he could not have been suffering from the intoxicating effects of the drugs. In circumstances in which there may be no dispute that the [NAME] was suffering from a mental health impairment except for the possible application of s 4(3), then the jury should be directed that the [NAME] was suffering from a mental health impairment as that term is defined in the legislation.

2. The other issue of construction relates to the onus of proof. The [NAME] submits that on a proper construction of s 4, s 4(3) operates as a form of exclusion or exception such that if the [NAME] asserts that the exception applies, the [NAME] bears the onus of proving the facts which give rise to the operation of the exclusion. That may be a significant point because, on one view of the evidence of the [NAME] expert, [NAME], he was uncertain whether the [NAME] was merely suffering from a temporary substance induced psychotic disorder at the time of killing [NAME] or whether it was a first episode psychosis induced by drugs but operating on an underlying vulnerability to schizophrenia. Even on the [NAME] case, if it is the latter, then s 4(3) would not apply and the [NAME] would be suffering from a mental health impairment as that term is defined in s 4.

1. In support of his submissions, [NAME] referred both to the common law and the previous regime which was governed by the Mental Health (Forensic Provisions) Act 1990 (NSW). 2. [NAME] summarised the defence primary submissions as follows: "The defence primary argument in this trial is that [NAME] was suffering from a First Episode Psychosis which is probably a manifestation of Schizophrenia. The evidence of [NAME] was to the effect that the provisions of s4(1) were satisfied and that at the time of the incident [NAME] was suffering a psychotic disorder (s4(2)(c)). That evidence establishes the Mental Health Impairment as required by s4."

1. The secondary submission is that even if the [NAME] is diagnosed with a drug induced psychosis, he still satisfies the definition of mental health impairment contained in s 4 of the MHCIFP Act. He submits this is in keeping with the intention of the MHCIFP Act which was to include drug induced psychosis as set out in the NSW Law Reform Commission's Report of May 2013 titled "People with cognitive and mental health impairments in the criminal justice system: Criminal responsibility and consequences" (the LRC Report).

2. Based on the [NAME]'s written submissions I was uncertain as to what I was being asked to do. The submissions seemed to be directed at convincing me that the [NAME] was suffering from a mental health impairment within the meaning of s 4. However, during oral submissions, [NAME] clarified his position stating: "[NAME]: I ask your Honour to direct the jury that, once they establish that [NAME] satisfies subs (1), which he does, and-- HIS HONOUR: And (2). [NAME]: --a psychotic disorder, that that is the end of the matter. HIS HONOUR: You want me to direct the jury there's no issue for them to determine because the [NAME] accepts (1) and (2)? [NAME]: They don't need to consider subs (3), yes."

1. The effect of what I am being asked to do is to remove from the jury any possible application of s 4(3) in the MHCIFP Act.

2. The [NAME] rejects such an approach.

3. In further submissions provided by the [NAME] between the first and second day of argument, the [NAME] acknowledges that the legislature sought to give effect to the recommendations of the LRC Report.

4. The [NAME] refers to the LRC Report at 60 as follows: "3.82 The proposed definition of mental health impairment, set out above, also includes "substance induced mental disorders". It defines this term to include ongoing mental health impairments such as drug-induced psychoses, but excludes substance abuse disorders (addiction to substances) or the temporary effects of ingesting substances. Consequently a person who has a psychiatric disorder at the time of the offence, albeit one brought on by abusing substances, will fall within the definition. For example, a person with a drug induced psychosis will be included, as will a person who has a long term drug induced psychiatric disorder such as Korsakoff's Syndrome. 3.83 However, a person who is only addicted to substances without such complications falls outside the definitions, as does a person who has ingested a substance and is temporarily affected by it."

1. However, the [NAME] emphasises that the legislature did not adopt the definition of mental health impairment put forward by the LRC, noting that the difference is of significance for the purposes of this matter. The [NAME] says that the legislature sought to distinguish between temporary and non-temporary drug induced disorders.

2. The [NAME] submits that, if the legislature sought to ensure that all substance induced mental disorders were included in the definition of mental health impairment, then the words "that is not temporary" would have been unnecessary in s 4(2)(d).

3. The [NAME] refers to the evidence that it relies on in this matter as suggesting that the substance induced type psychosis is temporary. That is, there is no underlying condition. It was the ingestion of a substance (or substances) that caused the psychosis and it was only temporary.

Determination 1. The MHCIFP Act commenced on 27 March 2021. Although the events occurred on 20 June 2020, the MHCIFP Act applies to this trial. [1] Although the MHCIFP Act has been considered in a number of judgments, [2] I have been unable to find any case in which the meaning of s 4(3) has been discussed. Counsel agrees that this point has not been considered previously. Further, I am not considering whether the [NAME] was suffering from "a disease of the mind" as that term has been understood and applied in many cases. I am considering whether words in relatively new legislation must be given the meaning suggested by the [NAME] such that, as a matter of law, the question cannot be left to the jury. I am not in doing so resolving conflicts in the evidence or considering whether any verdict might be unreasonable.

2. The particular circumstances of this matter are somewhat unusual. The [NAME] had been consuming cannabis for a lengthy period and, indeed, had consumed LSD on 30 occasions prior to the date of the alleged offending. However, the last occasion in which he consumed LSD was 11 days prior to the offending acts.

3. The [NAME] was taken into custody immediately following the event. He did not consume any further drugs whilst in custody and, on the history presented whilst in custody, at least on one view of the evidence, it may be that he was not suffering from any psychosis within a month or two of the event. There is no evidence of any further relapse into psychosis at any time thereafter.

4. It is the [NAME] case that the [NAME] was suffering from a substance induced psychosis at the time of the events which was temporary in nature and that the [NAME] has made a complete recovery from that psychosis whilst in custody.

5. Of course, it is not my function to make any evidentiary ruling or make some determination as to the scope of any address which might be made by the [NAME]. I am not. This issue has been raised by the [NAME] for the purposes of requesting that I give a direction to the jury that s 4(3) has no work to do in the circumstances of this matter; that is a substance induced psychosis of a type that the [NAME] relies on (being temporary in nature) could not fall within the meaning of a mental health impairment caused solely by the temporary effect of ingesting a substance and thus there is no basis on which s 4(3) could apply. This is in circumstances in which the question of whether the [NAME] had a mental health impairment which had the effect required by s 28 is stated as being a question of fact for the jury to decide on the balance of probabilities.

6. The term "mental health impairment" when used in s 28 must be given the meaning set out in s 4 of the MHCIFP Act. I note also that the same definition of mental health impairment is now contained in the Crimes Act 1900 (NSW) for the purposes of s 23A of the Crimes Act.

7. The ordinary principles of statutory construction apply. In [NAME] v Minister of Immigration and Border Protection [3] the Court per Kiefel CJ, Nettle and Gordon JJ said: "The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." (citations omitted)

1. Both parties have referred to the decision of the [ADDRESS] of Criminal Appeal in R v [NAME] as well as the LRC Report and the Second Reading Speech of the Attorney-General. [4] In particular, the [NAME] relies on the statement of the Attorney-General as follows: "Clause 4 determines that a person has a "mental health impairment" if the person has a temporary or ongoing disturbance that would be regarded as significant for clinical diagnostic purposes and that impairs the person's emotional wellbeing, judgement or behaviour. A mental health impairment can arise from an anxiety disorder, an affective disorder, a psychotic disorder or a substance-induced disorder that is not temporary. 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."

1. It is permissible to have regard to the Second Reading Speech to identify the context in which the legislation was enacted and the mischief sought to be remedied. [5] However, it is not permissible to replace words that have a plain, ordinary meaning with the words used in the Second Reading Speech. I must not instruct the jury that it must consider "whether the [NAME] was on drugs" at the time of the events. They are not the words used in the legislation.

2. Further, the context in which s 4(3) is being considered is not merely the context of changes to legislation as recommended in the LRC Report.

3. The meaning of s 4(3) must be considered in the context of the MHCIFP Act as a whole, including s 4 as a whole. Section 4 is a provision in which the meaning of ordinary words is specified for the purposes of the MHCIFP Act. It is in the nature of a definition section, albeit that s 4(2) is non-exhaustive.

4. Section 4 is somewhat unusually worded in that s 4(1) specifies that a person has a mental health impairment if ss 4(1)(a), (b) and (c) are satisfied.

5. Subsections 4(2) and (3) then specify circumstances in which a mental health impairment would arise and when it would not.

6. There are perhaps two approaches to the construction of s 4, being either:

1. Subsections 4(2) and (3) set out what might be described as mutually exclusive circumstances as to when (if the person satisfies s 4(1)) a person has a mental health impairment and when a person does not; or 2. A person has a mental health impairment if s 4(1) is satisfied and if it arises in circumstances specified by s 4(2), except that it will not be a mental health impairment if s 4(3) is satisfied.

1. The difficulty with the first approach is that it renders s 4(3) redundant as once any of the matters set out in the s 4(2) are satisfied it is not necessary to consider s 4(3). That is, once a diagnosis of psychosis is made ([NAME] says that it is a psychotic disorder), then there could be no scope for considering whether the impairment was caused solely by the temporary effects of ingesting drugs. However, at least on one view of [NAME]'s evidence, it could be both, that it is a temporary psychotic disorder that only arose because of the ingestion of drugs without any underlying cause.

2. It is not clear why s 4(2) is even necessary unless it is to emphasise that the disturbance of thought must arise from some form of disorder. Presumably the intent of s 4(2) was to clarify the circumstances in which that mental health impairment might arise even if s 4(1) is satisfied. That is done by identifying non-exhaustive reasons as to the circumstances in which a mental health impairment may arise. The fact that s 4(2) is non-exhaustive gives weight to the argument that the purpose of s 4(2) was to ensure that the disturbance of thought must arise from a type of disorder.

3. However, as identified by the [NAME], the legislature decided to distinguish between substance induced mental disorders which were temporary and those which were not.

4. Thus, on a proper interpretation of s 4, not every substance induced mental disorder would necessarily satisfy the definition of mental health impairment. This is important as it tends to suggest that there may be circumstances in which a person would be suffering from a disorder which does not give rise to a mental health impairment as that term is defined, being a substance induced mental disorder that is temporary.

5. This difficult issue is the subject of commentary in [NAME] and [NAME], Crime and mental health law in New South Wales: Supplement to the 3rd edition (2021, LexisNexis Butterworths). The very issue which is raised in this matter is discussed by the learned authors, albeit they do not cite any authority for their conclusion. [6]

6. The context in which s 4(3) must be construed includes s 4(1) and s 4(2). As I understand the [NAME]'s submissions, it is that s 4(3)(a) could only be construed in such a way as being limited to the circumstances in which the [NAME] person is on drugs or intoxicated by drugs and not suffering from any disorder. Of course, when a person is "on drugs" is not capable of a precise meaning but it is clear that in this matter the [NAME] was not intoxicated by drugs at the time of the events which occurred.

7. The [NAME]'s submission might be tested by considering what the position would be if a person of otherwise normal health took drugs, which were no longer detectable in the system, after say, 24 hours but, as a result of taking the drugs, developed a psychosis or suffered a psychotic episode (which could be describes as a psychotic disorder) which lasted for example, a week, without any further consequences. On the [NAME]'s argument, that person would be suffering from a mental health impairment and may be entitled to a special verdict. There would be no scope for considering s 4(3).

8. It is difficult to see that such an approach would be consistent with the purposes of the legislation or the ordinary natural meaning of the words used and, indeed, the context of s 4(3) having regard to s 4(2)(d).

9. As is plain from s 28(2), whether the [NAME] had a mental health impairment that had the effect set out in s 28(1) is a question of fact to be determined by the jury on the balance of probabilities. That question necessarily includes whether the [NAME] had a mental health impairment at the time that he strangled [NAME].

10. In my view, the words used in s 4(3) are not so clear as to exclude from their possible operation an impairment existing at the time of the event which is described as a substance induced disorder which was only temporary in nature and which was caused solely by the ingestion of drugs without any underlying cause.

11. I am satisfied that the issue raised by the [NAME] is a matter for the jury. Of course, I must give directions as to the law but I am not satisfied that, as a matter of law, the exception contained in s 4(3) could only apply in circumstances in which the [NAME] was intoxicated by drugs at the time of committing the act, or could never apply if s 4(2) is satisfied.

12. Whether the evidence supports that which the [NAME] asserts is not a matter for me. That is a matter for the jury. The [NAME]'s submission that the evidence is that the [NAME] had a mental health impairment was again not put to me on the basis that I should determine that there is no evidence which would support the [NAME]'s position.

Onus of proof 1. As set out in s 28(3) of the MHCIFP Act, until the contrary is proved, it is presumed that the [NAME] did not have a mental health impairment that had the effect set out in s 28(1).

2. It follows that in a case such as this where the [NAME] does not agree that the [NAME] had a mental health impairment that had the effect set out in s 28(1), the onus is on the [NAME] to rebut the presumption set out in s 28(3).

3. Although s 28 does not refer to the onus of proof, as it is the [NAME] who asserts that he had a mental health impairment that had the effect as required by s 28(1), then it must be that the burden falls on the [NAME] to establish that. Section 28(2) provides that that question is a question of fact to be determined by the jury on the balance of probabilities. The [NAME] is thus required to adduce sufficient evidence to satisfy the jury on the balance of probabilities.

4. The [NAME] submits that that same onus is imposed upon the [NAME] in respect of each of ss 4(1), (2) and (3). On the [NAME] case, the [NAME] thus must establish not only that:

1. He satisfies each of ss 4(1)(a), (b) and (c) and that his mental health impairment arises from one of the disorders referred to in s 4(2); but also, 2. Establish the negative, that is, his impairment was not caused solely by the matters referred to in s 4(3).

1. Section 4 is in the nature of a clarifying definition. [7] Words of ordinary English language are given a specified meaning for the purposes of the MHCIFP Act in s 4. Thus, a person will only have a mental health impairment for the purposes of the MHCIFP Act in accordance with s 4. When used in s 28, mental health impairment means that which is identified in s 4. More precisely the person will only have a mental health impairment if the circumstances set out in ss 4(1) and (2) exist. A person will not have a mental health impairment if the circumstances set out in s 4(3) exist.

2. As I have already indicated on my construction of s 4, s 4(3) creates an exception to the circumstances in which a person would have a mental health impairment even though the matters referred to in ss 4(1) and (2) would be satisfied. That is, I do not read s 4(2) and s 4(3) as being mutually exclusive provisions.

3. It is the [NAME] who asserts that the exception is enlivened. Whilst for the purposes of s 28 the obligation may be on the [NAME] to rebut the presumption arising in s 28(3), I do not consider that in the context of the criminal law and the purposes of the MHCIFP Act that the onus rests on the [NAME] to establish something that he does not assert but that which is asserted by the [NAME].

4. On the [NAME] case, if an [NAME] person does not adduce sufficient evidence to prove that his impairment was not caused solely by both of the matters set out in ss 4(3)(a) and (b), then the [NAME] would not have proved that which is required by s 4. I use the word "both" because if the onus is on the [NAME] to prove a negative, then in circumstances in which ss 4(3)(a) and (b) are the alternatives, then the [NAME] would have to prove that neither ss 4(3)(a) or (b) applied.

5. In my view, as it is the [NAME] who asserts that the facts required for the operation of s 4(3) are present, it is the [NAME] who bears the onus of establishing those facts for the purposes of the application of s 4(3).

6. The [NAME] must establish the matters referred to in ss 4(1)(a), (b) and (c) and that his mental health impairment arises out any of the disorders (or for other reasons) as set out in s 4(2). However, it is for the [NAME] to establish on the balance of probabilities that despite any satisfaction in respect of ss 4(1) and (2), the [NAME]'s mental health impairment was caused solely by one of the matters referred to in ss 4(3)(a) or (b).

Self Defence with Excessive Force 1. The [NAME] submits that the defence of self-defence with excessive force should not be left to the jury, that is, that the evidence taken at its highest is not capable of raising reasonable doubt in the mind of the jury as to whether the [NAME] has excluded self-defence. [8]

2. In order to be left to the jury there needs to be evidence capable of indicating a reasonable possibility of a belief by the [NAME] that his conduct was necessary to defend himself. [9]

3. In support of his submission the [NAME] contrasted cases such as R v [NAME] (No 4) [10] and R v Pham. [11] The [NAME] submits that the evidence taken at its highest would not leave open a reasonable doubt as to whether the [NAME] believed that it was necessary to defend himself, suggesting that the [NAME] planned the assault and had the opportunity to remove himself from any perceived threat of harm. The [NAME] also refers to the statements of the [NAME] that "we got into a fight" and the [NAME]'s statements in the triple-0 calls to the effect that he had killed a person and that it was a female demon.

4. On the other hand, the [NAME] submits that in considering whether the evidence is capable of supporting a doubt in the mind of a jury, the evidence must be taken at its highest in favour of the [NAME]. [12] This assessment is undertaken without any assessment of whether the evidence should be accepted. The [NAME] points to statements he made in the immediate period following the strangling of [NAME] to the effect that he had killed a demon and that it was trying to suck the life out of him. He further points to his evidence to the effect that he did not perceive any alternative. Further, as shown on the body worn video, the [NAME] was trying to get into the Police car even after the event.

5. The essential question, if left to the jury, would be whether the [NAME] has proved that the [NAME] did not believe that it was necessary to defend himself. That question must be determined having regard to the [NAME]'s perception. It is his belief at the time that is relevant. Obviously, the [NAME]'s belief was not rational and the [NAME] accepts that he was suffering from a disturbance of mind at the time but contends that the [NAME] was not suffering from a mental health impairment at the time. As such, the question is not whether the [NAME]'s belief was rational or objectively reasonable. The test is subjective.

6. In my view, the evidence is capable of supporting a reasonable doubt in the mind of the jury as to whether the prosecution has excluded self-defence and in the circumstances the question will be left to the jury to determine.

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Endnotes 1. R v Tonga [2021] NSWSC 1064 at [6]-[10] ([NAME]); R v [NAME] (No 1) [2021] NSWSC 1292 at [9] ([NAME] J).

2. See, for example, R v [NAME] [2022] NSWCCA 87 ("R v [NAME]"); R v [NAME] (No 2) [2021] NSWSC 1542. 3. (2017) 262 CLR 362; [2017] HCA 34 at [14].

4. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 3 June 2020 at 2350.

5. See Interpretation Act 1987 (NSW), s 34(2)(f).

6. See 27-28.

7. See Moweno Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376 at [61] ([NAME] in Eq). 8. [NAME] v Director of Public Prosecutions (NSW) [2006] NSWCA 293 ("[NAME]") at [19] (Ipp JA).

9. Ibid. 10. [2020] NSWSC 1826 at [15]-[16] ([NAME]). 11. [2021] NSWSC 196 at [35]-[56] ([NAME]). 12. [NAME] v The Queen 243 CLR 434; [2011] HCA 14 at [36] ([NAME], Crennan and Kiefel JJ). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2022