R v Khan (No 10)

The accused is charged with committing a terrorist act on 10 September 2016 by stabbing Wayne Greenhalgh when Mr Greenhalgh was walking in the suburb of Minto. He has pleaded not guilty to that charge on the grounds of mental illness. The entirety of the evidence has been completed and the Crown's final address is about to commence.

The offence with which the accused has been charged is contrary to the Criminal Code 1995 (Cth) (“the Code”). His defence is governed by s 7.3(1) of the Code. Consistent with the terms of that section, there is no dispute that I should direct the jury in the following terms (“the agreed direction”):

Mr Anderson of counsel, who appears for the accused, has made it clear that he will not be submitting to the jury that the accused did not know the nature and quality of his conduct, nor will he be submitting to the jury that the accused was unable to control his conduct. Mr Anderson’s submission to the jury will be in terms of s 7.3(1)(b) of the Code, namely that the accused did not know that his conduct was wrong in the sense outlined in the agreed direction.

Mr Anderson has made an application for an additional direction to be given to the jury in relation to the accused's plea (“the additional direction”) in the following terms:

Save for the inclusion of the word "morally", the terms of the additional direction are taken from the decision of R A Hulme J in R v Pratt [2009] NSWSC 1108. The Crown does not oppose a direction being given in those terms, save for the inclusion of the word "morally".

Mr Anderson submitted that for the purposes of s 7.3(1)(b) of the Code, the word “wrong” means "morally wrong". In support of that proposition he cited a number of decisions, including R v McNaghten (1843) 8 ER 718; R v Porter (1933) 55 CLR 182; [1933] HCA 1 at 189-90; and Stapleton v R (1952) 86 CLR 358; [1952] HCA 56 at 374. He accepted, as I understood it, that the additional direction had the effect of incorporating into the agreed direction the word “morally”, in circumstances where that term was not a part of the legislation from which the agreed direction had been formulated.

However, Mr Anderson submitted that absent the additional direction, there may be uncertainty on the part of the jury as to the matter(s) of which they must be satisfied before they can return a verdict of not guilty on the grounds of mental illness. His application stems, at least in part, from the fact that some of the psychiatrists who have given evidence in the trial have made reference to whether the accused knew that his act was legally (as opposed to morally) wrong. Mr Anderson submitted that in the absence of the additional direction, questions from the jury in relation to that issue were likely.

Mr Anderson accepted that the focus of the jury's attention will be whether or not the accused knew that his conduct was wrong in the sense explained in the agreed direction. However, he submitted that if the additional direction were not given, it would not be made explicit to the jury that the word “wrong” in the agreed direction meant “morally wrong”. However, he accepted, as I understood it, that the additional direction essentially re-states, by the inclusion of the word "morally", what is already in the agreed direction, albeit in another form.

The Crown submitted that to direct the jury as to moral wrongfulness beyond the words which appear in the legislation would be both artificial and unnecessary. As I have noted, the Crown did not object to the proposed direction absent the word "morally".

Even accepting that the authorities cited by Mr Anderson support the view that s 7.3(1)(b) of the Code is directed towards the issue of moral wrongfulness, I am not persuaded that the additional direction should be given in the terms sought, although I am prepared to give it without the insertion of the word "morally".

In my view, the effect of the additional direction is to place what might be described as an unnecessary gloss on the terms of s 7.3(1)(b), and thus a gloss on the agreed direction. The terms of that agreed direction are taken directly from s 7.3(1)(b) which creates the defence. As Mr Anderson accepted, what he seeks in the additional direction is, in effect, already in the agreed direction, albeit expressed in a different form of words.

In my view, there is no real danger that the jury will query whether or not the distinction between legal and moral wrongfulness that has been referred to in some parts of the evidence is a matter that they will need to consider. The reason that no such danger will arise is because the agreed direction is not in those terms.

Further in my view, the proposition that absent the additional direction, questions from the jury might be forthcoming, is not something that justifies the direction being given. Such a proposition is necessarily speculative. If the jury asks a question in the course of their deliberations, that question, like all questions from the jury, will be discussed with counsel and answered.

For those reasons, I do not propose to give the additional direction in the form which has been sought.

The only remaining observation I make stems from the Crown's submission to which I referred earlier, namely, that to draw any distinction between what is morally wrong and what is legally wrong would be artificial and unnecessary. That is a proposition with which I generally agree. It is one which has necessarily impacted upon the conclusion that I have reached. It is also one which must impact on final addresses by counsel. Just as the jury will not be directed in terms which place a gloss on the terms of that part of the Code which creates the defence, counsel in their addresses should not do so either. It is important that counsel address the jury, obviously in accordance with the evidence, but also in accordance with the agreed direction, which, as I have noted, is based on the provisions of the Code which create the defence on which the accused relies.