R v Patterson (No 6)

HIS HONOUR: The accused in this matter, Jason Patterson, is on trial for murder of his sister. He does not deny his responsibility for the relevant acts, nor that he acted with, should it come to it, the relevant intention. His position is that the appropriate verdict is one of act proven but not criminally responsible pursuant to s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”).

Each of the Crown and the accused have called and rely on expert evidence in relation to the availability of that verdict. The Crown called Professor David Greenberg. The accused called Doctors Andrew Ellis and Anna Farrar.

Ultimately, the issue in the trial has come down to the question of whether the accused was suffering from a mental health impairment within the definition in s 4 of the Act. In order to assist the jury, they have been provided with a written direction in relation to the availability of that verdict. Three issues were identified as determinative of the availability of the special verdict. The written direction [1] set them out as follows:

The jury were also, as part of the written direction, provided with a number of notes to assist them in determination of issues 1 to 3. The notes included a note which, in essence, reflects s 4(2) of the Act. A further note indicates that issue 3 is not contentious. That note is a reflection of the evidence of each of the doctors that the accused either did not know the nature and quality of his act or, if he did, he did not know it was wrong in the relevant sense. Whilst there was a difference of agreement as to whether the accused knew the nature and quality of his act, that disagreement is of no moment.

The real issue in the trial was identified at a relatively early stage as being issue 2. That is, there was no dispute amongst the psychiatrists, and no issue taken with their opinion, that the accused had satisfied, on the balance of probabilities, issue 1, reflecting s 4(1) of the Act. It was accepted, that being the case, it was for the Crown to satisfy the jury on the balance of probabilities of one of either (a) or (b) as set out in issue 2 which reflects s 4(3) of the Act. That formulation, placing the onus on the Crown on the balance of probabilities, was accepted by the parties to be appropriate in light of the decisions in R v Miller [2022] NSWSC 802 and R v Sheridan [2022] NSWSC 1669. The trial has now reached the stage where I am shortly to sum up to the jury, the evidence of the experts, and all other evidence in the trial, having been given.

The evidence of the three psychiatrists was that the accused was suffering a psychotic episode at the time of the relevant acts. Dr Ellis was of the view that the psychosis related to, or perhaps more correctly, was the result of schizophrenia. Dr Farrar was of the view that the accused suffered a schizophreniform disorder; in essence, a disorder similar in nature to schizophrenia but in which the duration of the illness was not such as to warrant the full diagnosis of schizophrenia.

Professor Greenberg's view was that, on balance, the accused was suffering from a drug-induced psychosis. It should be acknowledged that all doctors were of the view that alternatives were possible. That is, Professor Greenberg, whilst of the view that on balance the condition was a drug-induced psychosis, also accepted that it was possible that he was suffering from schizophrenia or a schizophreniform disorder. Both Doctors Ellis and Farrar acknowledged that it was possible that it was a drug-induced psychosis. Each was respectful of the opinion of the others, acknowledging that differentiation between these diagnoses is difficult. Indeed, it transpires that in 25 per cent of cases where a person is diagnosed as having a drug-induced psychosis, they are later found to have been suffering schizophrenia. The error, unsurprisingly, also goes the other way, highlighting the difficulty for the experts.

Be that as it may, what is significant for the purposes of the trial is that each of the doctors agree that whether it be drug-induced psychosis, schizophrenia or a schizophreniform disorder, the accused had, at the time of the act causing death, an impairment of the type described in s 4(1) and issue 1 of the directions. Each of the doctors, including Professor Greenberg, has also unequivocally expressed the opinion that the impairment suffered by the accused at the time of relevant events was not caused solely by the temporary effect of ingesting a substance. Each has also expressed the opinion that the impairment was not caused solely by a substance use disorder. In other words, each of the experts called in the case has provided an opinion, acceptance of which has the inevitable result that the Crown must fail on issue 2 and, consequently, must fail in any argument that the accused should not receive the benefit of the special verdict, (if “benefit”’ is the correct term in this context).

Despite this evidence, the Crown Prosecutor submits that the jury could, nonetheless, return a verdict of guilty; that is, the jury could reject the availability of the special verdict. The difficulty for the Crown is that the expert evidence is all one way.

The law in this context is well-established. It was reviewed comprehensively in Hone v Western Australia (2007) 179 A Crim R 138. Justice Miller referred to an earlier statement from R v Hall (1988) 36 A Crim R 368, where Roden J said at 370-371:

It can be accepted that there will be cases where the expert evidence is based on certain facts. It may be that there is a question as to those facts and that, in the event that the jury were not satisfied of the facts, it would be well open to them not to accept expert evidence, even if it was otherwise unanimous: see generally Reberger v R [2011] NSWCCA 132; R v Klamo (2008) 184 A Crim R 262; Ukropina v R [2016] NSWCCA 277.

It was accepted on behalf of the Crown that if the opinions of either Dr Ellis or Dr Farrar were to be accepted as to the nature of the accused's disorder, then the Crown would fail in its contention that the special verdict should not be returned.

As I understand it, the Crown's contention is that it is firstly open to the jury to accept the evidence of Professor Greenberg as to the diagnosis. Secondly, in accepting that evidence as to his diagnosis, they do not need to accept his opinion as to the condition not being caused solely by the temporary effect of ingesting a substance or a substance use disorder.

The difficulty with the Crown's position is, it seems to me, in its attempt to sever the opinion of Professor Greenberg. That is, the Crown wishes to rely on Professor Greenberg's evidence that the use of drugs was a cause of the psychosis. The Crown would rely on that part of the opinion to establish a causal link between the use of drugs and the psychosis but then would seek to sever the opinion that the drugs were not the only link. Even if this could be done, there is simply no evidence that the use of drugs was the only cause.

The Crown submitted that, whilst unable to point to evidence of any opinion that the use of drugs was the sole cause, it was a question for the jury. That is, the jury themselves assessing the evidence which they have heard could, in the Crown submission, form their own view that the use of drugs was the sole cause.

In making that submission, the Crown accepted that the test in s 4(3) of the Act cannot be equated with a “but for” test. It is, therefore, not enough for the Crown to establish that but for the ingestion of drugs the psychosis would not have occurred.

In circumstances where the onus is on the Crown to establish that the accused's psychosis was not caused solely by one of the matters in s 4(3)(a) or (b) of the Act, it is necessary that there be some evidence of this fact. There is none.

In those circumstances, it is in my view appropriate that the jury be directed in clear terms. For those reasons, I indicated to the parties after argument that it is my intention to direct the jury along the lines of the following: