Delaney v R

1. [1]

   HARRISON CJ AT CL: I agree with Davies J.

2. [2]

   DAVIES J: On 22 April 2022 in the Penrith Local Court the applicant pleaded guilty to the murder of his sister, Gabriella Delaney, on 3 June 2020. He adhered to that plea in the Supreme Court on 3 June 2022.

3. [3]

   On 19 October 2022 he was sentenced by Garling J to imprisonment for 21 years commencing 9 June 2020 and expiring 8 June 2041 with a non-parole period of 15 years 9 months expiring 8 March 2036: R v Delaney [2022] NSWSC 1327.

4. [4]

   The applicant now seeks leave to appeal against his conviction on the following ground:

5. [5]

   Leave is sought because the appeal is brought pursuant to the third limb of s 6(1) of the Criminal Appeal Act 1912 (NSW).

6. [6]

   The applicant also seeks leave to appeal against his sentence on the following ground:

7. [7]

   The applicant requires an extension of time to appeal because the Notice of Appeal was not filed until 28 November 2024. A Notice of Intention to Appeal had been filed on 1 February 2023.

8. [8]

   For the reasons which follow the applicant should be granted an extension of time to appeal, his appeal against his conviction should be allowed, and the matter remitted to the Supreme Court for retrial. In the circumstances it is not necessary to consider the appeal against sentence.

The Offending

1. [9]

   The applicant was sentenced on the basis of agreed facts which were summarised by the sentencing judge.

2. [10]

   The applicant and the deceased, who were biological siblings, lived together as the sole occupants of a detached flat at Cambridge Park. Their brother, Daniel, and his wife, Ms Tompkins, lived in the main dwelling house on the same property. The applicant’s cousin, Jayleb, lived in another unit on the property.

3. [11]

   On 3 June 2020, Jayleb came home from work between 3:30pm and 4:00pm. He went into the flat and spoke with the applicant and the deceased for five to ten minutes before leaving to go to his unit on the property. That interaction was entirely normal.

4. [12]

   Later that afternoon, after Jayleb left the flat, the applicant repeatedly struck the deceased in the head with a hammer, causing fatal injuries. As a result of the blows, the deceased suffered extensive fractures to her skull and face. The applicant’s assault on the deceased also caused bruising to her arms and legs, broken upper and lower front teeth, lacerations to her neck, and on the top of her skull. The applicant at the time he struck the blows did so with an intention to kill the deceased.

5. [13]

   The applicant wrapped the deceased’s body in a blanket on his bed. He took a single armchair from the living room and placed it upside down on the bed, on top of the deceased’s body.

6. [14]

   The applicant went to Jayleb’s unit and said he would be going “out for a couple hours, days”. Jayleb suggested he would go and see the deceased, to which the applicant responded that she had gone to a friend’s place. The applicant also refused Jayleb’s offer to care for their dogs while he was away.

7. [15]

   That night, the applicant went to a friend’s house and smoked methamphetamine. He did not sleep. The following day, he checked into a motel where he stayed the night.

8. [16]

   The applicant then caused $5,300 to be transferred from the deceased’s bank accounts to his bank account. Over the next few days, he withdrew a further $4,000 in cash and paid for two nights’ accommodation out of this money.

9. [17]

   On 4 June 2020, Jayleb attempted to contact the deceased. Ms Tompkins entered the flat and called out to the deceased and the applicant, but she received no answer. Ms Tompkins noticed that the dogs were locked in the flat.

10. [18]

    On 5 June 2020, the applicant went back to the flat, showered and changed his clothes. He left, and subsequently encountered Ms Tompkins along the road, who commented on his absence from the property. He dismissed her comments and said he would be away for a number of days.

11. [19]

    The applicant checked into a hotel, where he met two friends, with whom he smoked ice and cannabis.

12. [20]

    On 6 June 2020, the applicant again stayed away from the flat in a different motel.

13. [21]

    On 7 June 2020, he presented himself to Cumberland Hospital where he was voluntarily admitted in connection with his drug use. Jayleb visited the applicant at the Cumberland Hospital. In response to a question, the applicant said he hated leaving the deceased “at home with the dogs all weekend all the time”.

14. [22]

    On 8 June 2020, Ms Tompkins entered the flat again. She noticed the flat was very messy and smelt very bad. Ms Tompkins attempted to enter the applicant’s bedroom, where the deceased had been left, but the door was difficult to open because items had been left stacked behind it. She obtained help from Jayleb to open the door, and the two of them then observed the applicant’s bedroom to be messy and that it had a bad smell. They noticed several items stacked on top of the bed. They collected some personal items for the applicant and left.

15. [23]

    When Jayleb delivered the applicant’s personal items to him at the Cumberland Hospital, Jayleb asked the applicant whether he knew where the deceased was. The applicant denied knowing where she was.

16. [24]

    Later that evening, Aaron Delaney, another of the applicant’s brothers, entered the flat to look for the deceased. He spoke with Jayleb who indicated that the deceased was missing. Another family member telephoned the police and reported the deceased missing.

17. [25]

    Aaron went back to the flat to search for an indication as to where the deceased might be. He removed some items from the applicant’s bed and noticed an object that looked like a silhouette of a body under a blanket. He realised that it was the deceased’s body and reported his discovery to the rest of the family and to the police. Police attended as did an ambulance officer who confirmed that the deceased was dead.

18. [26]

    On 9 June 2020, the following morning, the applicant was arrested and taken into custody from the Cumberland Hospital for the murder of the deceased. After he was cautioned, he expressed surprise that his sister was involved and asked whether she was dead.

19. [27]

    Since he has been in custody, he has apologised to his family members for his acts.

Psychiatric Reports

1. [28]

   The lawyers acting for the applicant arranged for the forensic psychiatrist, Dr Adam Martin, to interview the applicant and to provide a report on the availability of a defence of mental health impairment pursuant to s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“MHCIFP Act”). Dr Martin interviewed the applicant on 20 September 2021 and provided his report on 3 December 2021. In the report, Dr Martin relevantly said:

2. [29]

   On 9 December 2021 following receipt of Dr Martin’s report, the applicant conferred with his solicitor and counsel via AVL from custody. The solicitor’s notes of that conference disclose the following:

3. [30]

   There were subsequent conferences between the applicant and his lawyers on 10, 13 and 15 December 2021 and 10, 12 and 21 January 2022. The notes of those conferences disclosed that the applicant understood that a mental illness defence was not available, that the mental health issues would be relevant to sentence and instructions were given to try to negotiate a plea to manslaughter. The applicant was advised about the discount for an early plea.

4. [31]

   On 8 March 2022 the Office of the Director of Public Prosecutions served a report from Associate Professor Anthony Samuels. Dr Samuels interviewed the applicant on 24 February 2022.

5. [32]

   Dr Samuels’ report of 24 February 2022 relevantly said:

6. [33]

   On 28 March 2022 the ODPP rejected the plea offer made by the applicant to manslaughter in full satisfaction of the indictment on the basis of s 23A of the Crimes Act 1900 (NSW).

7. [34]

   Subsequently the applicant and his lawyers conferred on 6 April 2022. The notes of the conference relevantly record the following:

8. [35]

   On 10 April 2022 the applicant signed a lengthy document prepared by his lawyers instructing them to enter a plea of guilty to murder. Amongst other things, this document, which must be taken as representing the advice the applicant was given, said:

9. [36]

   As noted earlier, the plea was entered on 22 April 2022.

10. [37]

    A letter following the sentence proceedings written by counsel for the applicant to his solicitors said this:

Legislation

1. [38]

   The MHCIFP Act relevantly provides:

Ground of appeal

1. [39]

   The basis of the appeal against conviction, which concerned the integrity of the plea entered by the applicant, was succinctly identified by Mr Buchen SC as follows:

The further evidence

1. [40]

   The applicant sought to read an affidavit of his solicitor which annexed emails passing between his solicitors at trial and the ODPP, file notes of conferences held between the applicant and his legal advisers prior to the entry of the plea, the letter of instructions to Dr Adam Martin and a report from Dr Olav Nielssen dated 22 February 2024 providing an opinion about whether the applicant had available to him the defence under s 28 of the MHCIFP Act.

2. [41]

   The Crown did not object to the material annexed to the solicitor’s affidavit except in relation to the report of Dr Nielssen on the basis of what was said by this Court in Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 at [436]-[439]. Ultimately, the applicant did not press for the admissibility of the report of Dr Nielssen and the Court rejected that report.

3. [42]

   The appellant in Xie sought to adduce further evidence at the hearing of his appeal against his conviction for five counts of murder. The Court discussed the distinction between a consideration of evidence that is said either to be new or fresh on the one hand and evidence to demonstrate that a trial departed from the essential requirements of the criminal process. The Court (Bathurst CJ, R A Hulme and Beech-Jones JJ) said:

4. [43]

   It was initially submitted by the applicant that Dr Nielssen's report was admissible to address what would have ensued had trial counsel taken the step that the applicant submitted should have been taken. Reliance was placed on what was said in RE v R [2024] NSWCCA 180.

5. [44]

   The position in RE was somewhat different from the position in the present case. An important issue in that case related to the timestamps on Instagram messages and whether they were consistent with the times recorded on call charge records. It was an issue whether Instagram messages were being sent by the complainant at a time when the accused was on a telephone call. The evidence sought to be adduced at the hearing of the appeal was whether the call charge records and the Instagram timestamps operated on the same timing system. An expert report was obtained to answer that question and was sought to be tendered at the hearing of the appeal.

6. [45]

   It was in those circumstances that Mitchelmore JA said at [98]:

7. [46]

   In the present matter, not only did Dr Nielssen's report go beyond showing what evidence might have been given at the trial, it expressed an opinion that the applicant made out the defence under s 28 of the MHCIFP Act. The applicant accepted that the latter opinion was not admissible.

8. [47]

   Dr Nielssen's opinion about what the proper approach to an assessment of whether the s 28 defence was made out is not necessary in the present case. The matter can be determined by an examination of the reports of Dr Martin and Dr Samuels and of the legal advice provided by the solicitors on the basis of those reports. The test that ought to have been applied under s 28 is one for the Court to determine. The approach another expert such as Dr Nielssen would have taken is not relevant.

Submissions

1. [48]

   The applicant submitted that both the psychiatrists provided their opinions on the basis that the applicant did not have a mental health impairment at the time of the offence because he was intoxicated. The applicant submitted that Dr Martin asked himself the wrong question by addressing whether the issue of acute intoxication with methylamphetamine could not be excluded as the most important factor being relevant to the alleged offending. The applicant submitted that neither expert considered whether intoxication was the sole cause of the applicant's impairment as provided by s 4(3) of the MHCIFP Act, or whether it was reasonably possible that the applicant's schizophrenia also contributed to his mental state at the time.

2. [49]

   The applicant submitted that the mistake was repeated in the legal advice given to the applicant in accordance with the expert opinion. In effect, the applicant was advised that he did not have a mental illness defence because he was intoxicated at the time of the offence.

3. [50]

   The applicant submitted that it appears likely that, if the experts had been required to consider whether the applicant’s intoxication by marijuana and/or ice at the time of the offence was the sole cause of his impaired state, they would have concluded it was reasonably possible it was not, given the applicant's long-standing mental health problems.

4. [51]

   The Crown submitted that the opinions expressed by the psychiatrists in their reports were not mistaken about the definition of “mental health impairment”. Although they did not use the word “solely” in their reports, it was apparent that after careful consideration each of the psychiatrists considered that intoxication provide the explanation of the applicant's behaviour.

5. [52]

   The Crown drew attention to the conclusions of Dr Martin in paras 37 and 38 of his report that the physical act appeared to have been most likely in the context of acute drug use, that it was not possible to state that the applicant did not know the nature and quality of his act or that it was wrong as a result of a mental health impairment as opposed to the effect of acute intoxication, that the offending appeared to have occurred in direct nexus to the effects of drug addiction affecting the applicant's level of control and judgment, and that the applicant's mental state at the material time could be assumed to have been the end product of drug addiction and intoxication affecting his thought processes and impairing his ability to behave rationally.

6. [53]

   The Crown submitted that while Dr Martin noted that the applicant had a serious mental health impairment, it does not follow that he considered that condition contributed to the applicant's mental state at the time of the offence. His opinion, that it would be speculative to argue that the applicant was significantly impaired by chronic mental illness to the extent that he would not have been able to appreciate the wrongfulness of his behaviour or had been able to reason with moderate composure, does not imply that he opined that “it was speculative that it was one or the other” (namely mental health impairment or acute intoxication) as the applicant submitted.

7. [54]

   The Crown also drew attention to various conclusions of Dr Samuels which supported his opinion that the s 28 defence did not appear to be available to the applicant. Those conclusions in paras 136, 138, 145 and 152 of his report were that it seemed likely that the applicant was acutely intoxicated by substances (marijuana and possibly crystal methamphetamine) and this resulted in paranoia, hallucinations and aggression at the time of the offence, the history suggested that drug use on the day of the offence led to psychotic symptoms and violent behaviour in the context of an acute intoxication, the assault was unprovoked and out of character and almost certainly related to substance misuse, and while it was possible he had a sudden relapse of his underlying mental illness brought on by drug use in the preceding days or weeks, the applicant did not seem to have been unwell in the days beforehand, and witnesses did not note significantly unusual behaviour or abnormal thinking patterns in the hours afterwards.

8. [55]

   The Crown submitted that Dr Samuels’ statement at para 144 of his report that it “certainly is possible that use of marijuana and crystal methamphetamine led to an exacerbation of [the applicant’s] underlying psychotic illness which is well documented” should not be read in isolation. The statement appears in response to a request for comment as to whether there was any causal nexus between the offending and any mental health diagnosis, and if so, whether it was triggered by drug consumption. Secondly, the statement is immediately qualified by what follows where the applicant's apparently normal behaviour with his sister earlier was noted.

9. [56]

   The Crown submitted, that having regard to the conclusions of the doctors, each expert, on balance, concluded that the applicant’s disturbed mental state was the result of the temporary effect of ingesting a substance and was therefore not a mental health impairment for the purposes of the MHCIFP Act.

10. [57]

    The Crown submitted that each expert, on balance, concluded that the applicant’s disturbed mental state was the result of the temporary effect of ingesting a substance (s 4(3)(a)) and was therefore not a mental health impairment for the purposes of the MHCIFP Act.

11. [58]

    The Crown drew attention to a number of decisions by single judges of the Supreme Court who concluded that, while the accused has the burden of proof under s 4(1), the Crown has the onus of proof in relation to s 4(3). The Crown submitted that those decisions were incorrect in relation to the onus of proof for s 4(3) and that this Court should not follow them. The Crown submitted that s 4(3) is not readily conceptualised as an exception to a mental health impairment otherwise made out under s 4(1) and s 4(2), or as something that is asserted by the Crown as was set out in R v Miller [2022] NSWSC 802. The Crown submitted that this Court would determine that the party seeking to establish the existence of a mental health impairment bears an onus of proving, on the balance of probabilities, that the impairment was not caused solely by the temporary effect of ingesting a substance or a substance use disorder.

12. [59]

    The Crown submitted that the advice provided to the applicant was explicitly based on the opinions of Dr Martin and Dr Samuels. The Crown submitted that while the advice was recorded in relatively simple terms, it accurately reflected the experts’ opinions as to the availability of the s 28 defence and was not mistaken.

Consideration

1. [60]

   In Layt v R [2020] NSWCCA 231, Payne JA (Walton and Fullerton JJ agreeing) summarised the principles relating to conviction appeals following a plea of guilty as follows:

2. [61]

   In White v R (2022) 110 NSWLR 163; [2022] NSWCCA 241, this Court confirmed that when an application is made to withdraw a plea of guilt after conviction and sentence, the conviction can only be set aside if it is established that a miscarriage of justice has occurred in accordance with s 6(1) of the Criminal Appeal Act 1912 (NSW).

3. [62]

   In Sagiv v R (1986) 22 A Crim R 73, Lee J (with whom McInerney and Campbell JJ agreed) said at [80]:

4. [63]

   In the present case the evidence shows clearly that the plea to murder was entered on the basis of the advice given by the applicant's solicitors. That advice was in turn based on what appeared in the reports of Dr Martin and, to some extent, of Dr Samuels. If wrong advice was given, it must be ascertained if it affected the integrity of the plea. Senior counsel for the applicant made clear, in response to a question from the Court, that any ground of appeal alleging incompetence on the part of the lawyers did not add anything to the appeal if miscarriage was established and, hence, no such ground was raised. That must be correct, because the enquiry is not whether the lawyers were incompetent in giving the advice; rather, the enquiry is whether, if the advice was wrong, it affected the integrity of the plea and thus constituted a miscarriage of justice: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [31], [79] and [97].

5. [64]

   Sections 4 and 28 of the MHCIFP Act have clarified in statutory form what had been decided on common law principles, at least by this Court’s decision in Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210. What s 4 has done is to identify in the first place in sub-s (1) what constitutes a mental health impairment, to give in sub-s (2) what Button J in R v Murray [2024] NSWSC 503 at [51] described as “illuminative examples”, and then in sub-s (3) to make clear that a person does not have a mental health impairment if it was “caused solely by" either the temporary effect of ingesting a substance or a substance use disorder.

6. [65]

   The definition overcomes, therefore, some of the difficulties identified in a number of the cases referred to in Fang. Indeed, what now appears in s 4 might be thought to have been succinctly expressed by Powell JA (Studdert and Levine JJ agreeing) in R v De Souza (1997) 41 NSWLR 656 where he said that “disease” in the context of s 23A of the Crimes Act 1900 (NSW):

7. [66]

   Section 4(3) in particular removes the difficulty in cases where an accused had a pre-existing mental illness but the underlying mental illness was triggered or exacerbated by the use of alcohol or drugs: cf Fang at [56] and the decisions identified in that paragraph. Under s 4(3) a person does not have a mental health impairment for the purposes of the MHCIFP Act if the impairment is caused solely by drugs and/or alcohol, or a substance use disorder. As Dhanji J made clear in R v Patterson (No 6) [2024] NSWSC 458 at [16], the “caused solely by” test cannot be equated with a “but for” test where it would be sufficient to prove that but for the ingestion of drugs the psychosis would not have occurred.

8. [67]

   Both Dr Martin and Dr Samuels considered that the applicant suffered from a mental health impairment being schizophrenia. However, what both doctors struggled with was the fact that on top of the mental health impairment of schizophrenia they considered that the applicant was acutely intoxicated by substances at the time of the killing. Their difficulty appeared to be attributing cause or contribution to one or both of those matters. Dr Martin approached the matter at para 57 of his report by noting that acute intoxication with methylamphetamine could not be excluded. That was not, however, to engage with the test in s 4(3). It was not a question of not being able to exclude the drug ingestion but, rather, whether that was the sole cause of the impairment. Both doctors concluded that as a result of the acute intoxication the applicant did not have available the mental health impairment. That led each to the conclusion that the applicant did not fall within s 28 of the MHCIFP Act, despite s 4(3) excluding an accused, who otherwise had a mental health impairment, only in the circumstances where the impairment was caused solely by the use of the drugs.

9. [68]

   The Crown submitted that although Dr Samuels did not say in terms that the applicant’s impairment was caused solely by the temporary ingestion of a substance, that was the effect of his opinion as set out in paras 130 to 143 of his report. In my opinion, such a conclusion cannot be derived from Dr Samuels’ report. His only reference to “solely” in his report is in para 130 where he agrees with Dr Martin that it was difficult to be certain that the applicant’s behaviour “arose solely from” an affective disorder or a psychotic disorder. That was to reverse the enquiry. Section 4 is not concerned with finding that the offending behaviour arose solely from a particular disorder; it is concerned in sub-s (3) with excluding the impairment if it was caused solely by (in this case) the temporary ingesting of a substance.

10. [69]

    The remaining paragraphs in Dr Samuels’ report relied on by the Crown, to the extent that they throw light on this central issue, are focused on the applicant’s ingestion of the drugs which leads to Dr Samuels’ conclusion at para 137 that “therefore” the applicant does not have the defence of mental health impairment. He does acknowledge at paras 138 and 144 that it was possible that the applicant had a relapse or an exacerbation of his underlying mental illness brought on by the drug use, but he then fails to address the test in s 4(3) in respect of that possibility.

11. [70]

    Those advising the applicant appear to have taken the matter a step further by advising that the defence was not available because “drug use cannot be excluded”, because the applicant “would have to prove that he was not taking drugs”, “would have to exclude the drug use at the time as a contributing factor", and “because of the interrelationship between schizophrenia and the likelihood of a drug induced psychosis”.

12. [71]

    None of this advice engaged with the “caused solely by” test in s 4(3). Wherever the onus lay in relation to s 4(3), the applicant did not have to prove that he was not taking drugs at the time nor did he have to exclude the effect of drug consumption as a contributing factor. The jury only had to be satisfied on all the evidence that the applicant’s impairment at the time was not solely caused by (relevantly) the temporary effect of ingesting the drugs. If they were so satisfied, then they had to consider under s 28 if the mental health impairment had either of the effects set out in that section.

13. [72]

    The advice given to the applicant was wrong advice. While it was ultimately a matter for the jury do decide if the applicant had a mental health impairment, on the basis of s 4(1) and (3) and whether that mental health impairment had the effect in s 28(1), the advice given to the applicant was, in effect, that he did not get to first base for those matters to be put to the jury, because he fell outside the definition in s 4. That advice left the applicant in the position of only being able to offer a plea first to manslaughter, probably based on s 23A of the Crimes Act or, if that was rejected (as it was), a plea to murder.

14. [73]

    As a result of being wrongly advised in relation to s 4 and its impact for the defence under s 28, there is a significant possibility that the wrong advice affected the outcome and the applicant has been deprived of the chance of a special verdict. In that way, there has been a miscarriage of justice. In those circumstances, the conviction will be set aside and the matter remitted to the Supreme Court for trial.

15. [74]

    This determination is not dependent on the question of who has the onus of proof under s 4 and that issue does not strictly arise. However, in deference to the arguments advanced and for the assistance of the trial court, the following are my reasons for concluding that where the issue of mental health impairment is raised by the accused, the onus of proof of demonstrating a mental health impairment within s 4(1) lies on the accused but if the evidence discloses either of the matters in s 4(3) and the Crown seeks to argue that s 4(3) applies, the onus is on the Crown to show that the impairment was caused solely by those matters.

16. [75]

    The issue of the onus of proof in relation to s 4 appears first to have arisen in R v Miller [2022] NSWSC 802 in the context of the directions that were to be given to a jury during a trial where the accused had asserted that he suffered from a mental health impairment, but the Crown asserted that the impairment was caused solely by one or other of the matters in s 4(3). Justice Cavanagh said:

17. [76]

    Subsequently, in R v Sheridan [2022] NSWSC 1669 a similar question arose where an accused sought to demonstrate that he had a mental health impairment, but the psychiatrist instructed by the Crown considered that the impairment was caused solely by the temporary effect of the accused's drugtaking. Garling J was referred to Miller and his Honour said that for reasons of judicial comity he would ordinarily follow a decision of another judge of the Court unless he was convinced that it was plainly wrong. His Honour said that he was not so convinced, and went on to say:

18. [77]

    The determinations in Miller and Sheridan were followed in R v Patterson (No 6) [2024] NSWSC 458, although without any resistance by the Crown to the obligation placed on it under s 4(3) as determined in those cases.

19. [78]

    Finally, the issue was considered in advance of the trial commencing in R v Murray [2024] NSWSC 503. The Crown again sought to argue that Miller, Sheridan and Patterson (No 6) were wrongly decided. Button J took the same course as that taken by Garling J in holding that there were no compelling reasons not to follow the earlier decisions. Nevertheless, his Honour considered that what he described as the “carveout” in s 4(3) might be considered 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 the defence (at [21]), and he suggested that the question of onus relating to the carveout in s 4(3) was contestable (at [62]).

20. [79]

    Although the Crown argues that it is the entirety of s 4 which provides the definition of mental health impairment with the result that sub-s (3) is not to be regarded as an exception, that submission does not take account of the requirement, on that construction of s 4, that the accused would at the outset have to prove that his impairment was not caused solely by both of the matters set out in s 4(3)(a) and (b). This is where the Act has arguably brought about a change to the common law position.

21. [80]

    In R v Radford (1985) 42 SASR 266, King CJ said at 274:

22. [81]

    In that way, a temporary disorder or disturbance, so described, would not constitute a disease of the mind to bring the M’Naghten rules into consideration. By contrast, such a condition might satisfy s 4(1). To exclude it, it must be a condition which falls within s 4(3).

23. [82]

    Accordingly, in my opinion, s 4(3) provides an exception or a qualification to what is contained in s 4(1).

24. [83]

    In Dowling v Bowie (1952) 86 CLR 136, Dixon CJ (Fullagar and Kitto JJ agreeing) said at 139:

25. [84]

    In Waters and Others v Mercedes Holdings Pty Ltd and Others [2012] FCAFC 80; (2012) 289 ALR 489, the Full Court of the Federal Court said:

26. [85]

    Applying that principle to the construction of s 4 of the MHCIFP Act does not impugn any principle associated with onus and burden of proof in the criminal law. The accused has the burden of demonstrating that he falls within s 28(1) of the MHCIFP Act if he asserts that he falls within it. So much is clear from s 28(3). The effect of that is that the applicant must bear the onus of proof in relation to s 4(1).

27. [86]

    The Crown correctly points out that s 4 is a definition that not only plays an important role in the s 28 defence, but also provides the basis for diversionary orders in the Local Court under s 14 of the MHCIFP Act and it is a definition relevant to the question of fitness under s 36 of that Act. The Crown also correctly points out that it is not always the accused who seeks to invoke s 4. Support for that submission may be found in Falconer at 62-63.

28. [87]

    It is not clear, however, why those matters have any bearing on considerations of the onus of proof within s 4. Every consideration of whether an accused has a mental health impairment will not engage the matters in sub-s (3). For example, in R v Jawid [2022] NSWSC 788 the Crown at a judge alone trial asserted that the accused had a mental health impairment under s 28 of the MHCIFP Act with the result that a special verdict ought to be given. On the other hand, the accused contended that he merely had a defence of substantial impairment under s 23A of the Crimes Act. In that case, the Crown had the onus of establishing that the accused had a mental health impairment which should result in a special verdict. No issue arose under sub-s (3).

29. [88]

    The question of who bears the onus of proof under sub-s (3) only arises if an issue is raised suggesting that the accused's impairment is caused solely by the matters in that sub-section. If the accused asserts only that he suffers from a mental health impairment and the Crown seeks to show that the accused does not have a mental health impairment for the purposes of the Act (whether s 28 or otherwise) then the onus of proof is on the Crown to prove the exception that it has raised. The analysis by Cavanagh J in Miller is correct. In that regard, the directions provided by Dhanji J in Patterson (No 6) should be accepted as the preferred directions in circumstances where an accused relies on a mental health impairment and the Crown relies on sub-s (3).

30. [89]

    There is no onus on the accused under sub-s (3) even in circumstances where on his own case, a substance or a substance use disorder is raised by the evidence. That is because unless it is shown that the impairment was caused solely by the ingesting of the substance or the substance use disorder, the accused will not be precluded from relying on a mental health impairment.

Conclusion

1. [90]

   I would propose the following orders:

2. [91]

   WEINSTEIN J: I agree with Davies J.