R v Fang (No. 1)

JOHNSON J: The Accused, Zhen Fang, is standing trial for the murder of Ting Huang in 2014. The Accused seeks to rely upon the partial defence of "substantial impairment" under s.23A Crimes Act 1900.

The Crown has called in its case Dr Yvonne Skinner, forensic psychiatrist. The Accused is to call in his case Dr Olav Nielssen and Dr Stephen Allnutt, both forensic psychiatrists. The evidence of the psychiatrists will touch upon the issue of substantial impairment and other issues.

In the course of cross-examination of Dr Skinner yesterday afternoon by Senior Counsel for the Accused, objection was taken by the Crown to a question put to the witness. The objection has led to submissions being made by counsel concerning the permissible areas of evidence which may be given by expert medical witnesses where substantial impairment is raised.

Section 23A Crimes Act 1900 is in the following terms:

Section 23A(1) contains two steps. The first step (s.23A(1)(a)) involves consideration of the question whether, at the time of the act causing death, the person's capacity to understand events or to judge whether the person's actions were right or wrong or to control himself, was substantially impaired by an abnormality of mind arising from an underlying condition.

The term "underlying condition" is defined in s.23A(8) as meaning "a pre-existing mental or physiological condition, other than a condition of a transitory kind".

The second step under s.23A(1)(b) arises if the Accused establishes the first step on the balance of probabilities. The second step requires consideration as to whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

Section 23A(2) provides that "For the purposes of subsection (1)(b), [that is, the second step] evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible".

The operation of s.23A(1)(b) was considered by the Court of Criminal Appeal in Potts v R [2012] NSWCCA 229; 227 A Crim R 217 at 223-224 [32]-[35]:

Accordingly, it has been emphasised that:

The Crown submitted that, although the psychiatrist witnesses may be asked questions about the sub-elements contained in s.23A(1)(a), a question cannot be asked as to whether, in the doctor's opinion, any impairment which may exist was substantial. In this respect, reliance was placed upon the judgment of Hunt CJ at CL in R v Trotter (1993) 35 NSWLR 428 at 431ff, where his Honour confined the areas where medical evidence could be given with respect to what was then described as the partial defence of "diminished responsibility".

It is important to keep in mind that s.23A was replaced in 1997, as a result of the Crimes Amendment (Diminished Responsibility) Act 1997. The 1997 Act followed examination of this partial defence by the New South Wales Law Reform Commission which recommended reforms: Report 82 (1997), “Partial Defences to Murder: Diminished Responsibility”, paragraphs 3.60-3.63.

The pre-1997 version of s.23A did not have an equivalent of s.23A(2), namely, it did not contain any express prohibition on areas where medical evidence could be given.

The 1997 version of s.23 introduced such an express provision. I have been taken by Senior Counsel for the Accused to the Second Reading Speech of the then Attorney General, the Honourable JW Shaw, with respect to the 1997 Bill (Hansard, Legislative Council, 25 June 1997). The Attorney General made quite clear how this legislation was intended to operate, at least with respect to the areas of prohibition of medical opinion evidence.

The Attorney General said:

In my view, as a matter of statutory construction and legislative intention, the current form of s.23A prohibits opinion evidence only on what I have described as the second step under s.23A(1)(b). That is the quintessential jury issue recognised in the partial defence of diminished responsibility, but now expressed with complete clarity concerning substantial impairment in s.23A(1)(b). As the Attorney General made clear in 1997, that second step was to be an area preserved solely for the jury, with medical opinion not being admissible with respect to it. This was a purpose or object of s.23A(1)(b) in the 1997 Act: ss.34, 35 Interpretation Act 1987.

I return then to the question which drew the objection to which this judgment relates.

I do not accept the Crown's submission that Dr Skinner cannot be asked questions about whether any impairment which she says existed was or was not substantial. In my view, Dr Skinner can be asked questions on that topic, no doubt in conjunction with other questions, which will seek to raise the sub-elements of the first leg of "substantial impairment" as contained in s.23A(1)(a).

Clearly, what cannot be sought is the opinion of any medical practitioner as to whether any impairment, which the medical practitioner considers existed, was so substantial as to warrant liability for murder being reduced to manslaughter.

To the extent that the objection taken by the Crown related to the expression of an opinion by Dr Skinner (on page 8 of her report of 28 July 2016) that the Accused was suffering from a substantial impairment at the time of the alleged offence, I consider that questioning on that area is permissible. That said, the sentence which contains that phrase states in full: “Thus, if drug-induced psychosis is considered an 'abnormality of mind', Mr Fang was suffering from a substantial impairment at the time the offences were committed.” In that sentence, I consider that Dr Skinner has, in a compressed way, raised the question as to whether drug-induced psychosis (that is, psychosis which is said to result from self-induced ingestion of the drug methylamphetamine or “Ice”) is capable of giving rise to the partial defence of substantial impairment.

That issue is affected by s.23A(3) which makes clear that self-induced intoxication by a drug is to be disregarded, for the purpose of determining whether the person was suffering from a substantial impairment. Dr Skinner appears to be raising that issue in the opening words of that sentence, but is then expressing a view which is clearly conditional upon the opening words.

I mention this expressly because the question which drew the objection from the Crown was going to remind Dr Skinner of this full sentence. There is force in the objection, if what Senior Counsel for the Accused is seeking to do is to place that sentence, in an unadorned way, before the jury.

I would uphold the objection to the use of that sentence in evidence. However, I will permit Senior Counsel for the Accused to cross-examine Dr Skinner about the components of s. 23A(1)(a), including the question as to whether Dr Skinner considers any relevant impairment to be substantial. That line of questioning is permissible, although, of course, as is clear, the witness cannot be asked questions touching upon the second leg in s.23A(1)(b).

Accordingly, I allow cross-examination of Dr Skinner in accordance with the ruling contained in this judgment.