Supreme Court New South Wales Medium Neutral Citation: R v Flame [2020] NSWSC 1013 Hearing dates: 12 June 2020 Decision date: 05 August 2020 Jurisdiction: Common Law Before: Button J Decision: Application for trial by judge alone refused. Catchwords: CRIMINAL LAW – murder – application by accused for trial by judge alone – opposed by Crown – foreshadowed defences of mental illness, substantial impairment and excessive self-defence – whether substantial impairment will require practical consideration by tribunal of fact – COVID 19 pandemic – pre-trial publicity – difficulties in judicial officer determining central normative element of substantial impairment Legislation Cited: Crimes Act 1900 (NSW), s 23A Criminal Procedure Act 1986 (NSW), ss 132, 365 Covid-19 Legislation Amendment (Emergency Measures) Act (2020) (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW), s 38(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Cases Cited: R v Cadman [2019] NSWSC 634 Fang v R [2018] NSWCCA 210 R v Gokhan Eyuboglu [2019] NSWSC 181 R v Hutchison & Wilkinson [2018] NSWSC 1759 R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 R v M'Naghten (1843) 8 ER 718 Category: Procedural and other rulings Parties: Regina (Crown) Mathew Flame (Accused) Representation: Counsel: L Lungo (Crown) J Stratton SC (Accused) Solicitors: Solicitors for Public Prosecutions (Crown) Archbold & Co Legal (Accused) File Number(s): 2018/339226 Publication restriction: Not to be placed on Caselaw before the conclusion of trial by jury Judgment Introduction 1. On 12 June 2020, I conducted a hearing with regard to an application made by Mr Mathew Flame (the accused) for his impending trial on a count of murder to be conducted without a jury and by judge alone. The application was brought pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) ("the Act"). Reliance was also placed on the newly inserted s 365 of the same Act. 2. The application was opposed by the Crown. Accordingly, the question for me is whether, in accordance with s 132(4) of the Act, it would be "in the interests of justice" for me so to order, perhaps informed by the readiness of Parliament to insert the new section to which I have referred. 3. For the following reasons, I reject the application. The trial will accordingly proceed with a jury later this year. For that reason, this judgment will not be promulgated until after the verdict of the jury is delivered. Sketch of background 1. The following summary is based upon the evidence placed before me at the hearing of the application. That consisted of the Crown case statement ("CCS"), and an affidavit of the solicitor for the accused. The latter document had annexed to it two psychiatric reports: the first of Dr Eagle of 10 September 2019, qualified for the accused, and the second of Professor Greenberg of 28 January 2020, qualified for the Crown. Summary of CCS 1. The alleged facts, seemingly undisputed, of the matter are as follows. The accused and Mr Liam Anderson (the deceased) were both young men, and close friends, at the time of the alleged offence. On 3 November 2018, they spent time socialising together along with other young friends, drinking beer and smoking cannabis. That was at a private home in the northern suburbs of Sydney. Later, they travelled to a hotel in Darlinghurst. There the group of friends, including the accused, consumed more alcohol and also took some "caps" of MDMA (known colloquially as ecstasy). It was noted by others that the accused appeared very intoxicated at the hotel, and his pupils were seen to be grossly dilated. 2. Eventually, the deceased, the accused, and the other young persons travelled back to the home in the northern suburbs. There they consumed more cannabis and alcohol. 3. Some time later, the accused and the deceased travelled to a third location, the apartment of a friend in a nearby beachside suburb. When the two young men arrived there, they both appeared to be drunk, but were in good spirits. Along with the occupants of the apartment, they drank more beer, smoked more cannabis, and the accused and others took some more ecstasy. By that stage, he had consumed a significant quantity of that prohibited drug. 4. According to at least one witness, the accused suddenly became "really closed off and looked upset…like he had no emotion." He did not respond to inquiries about his well-being. His behaviour was judged to be out of character, not just generally, but also in comparison to other occasions upon which he had consumed ecstasy with others. 5. He departed the unit on foot, with the deceased and another friend running after him. The general belief was that the accused was experiencing an adverse reaction to the substances that he had consumed, and needed to be looked after. Efforts were made to get him back inside, including by physical persuasion, but he rejected them. He did not speak to his concerned companions. Eventually, others returned to the unit, but the deceased followed the accused, explaining that he "would never leave my best friend". 6. At about 6 AM on 4 November 2018, the accused was seen by bystanders to be brutally assaulting the deceased in a park. Verbal efforts by others to have him stop were to no avail. According to one witness, it "was like I [the witness] wasn't there [to the accused]". Another witness described the accused as possessing "no emotion". The CCS recounts that the same witness described him as "emotionless and silent, as though he was in a daze". 7. The worst of the assault involved the accused repeatedly stomping on the head of the deceased, which was bleeding profusely. Eventually, police and medical personnel arrived, and urgent efforts were made to save the life of the deceased. In the meantime, the accused "appeared calm and composed." When questioned by police "he looked confused and was unresponsive". He "continued to look at police mindlessly, as though in a daze." 8. Later, the accused became aggressive, and the police used capsicum spray to disable him. It was after that that he began to speak of "Satan". He mumbled statements to police about that figure, including words to the effect of "Satan is not going to be happy. Satan's going to kill you" and "I know I can kill them all Satan." The accused was otherwise rambling. 9. Despite the best efforts of ambulance paramedics and doctors attached to the care flight helicopter, the deceased was pronounced dead at 7:04 AM on 4 November 2018. 10. Whilst in police custody, the accused spoke repeatedly and seemingly sincerely of the presence of Satan, and the wishes and commands of that figure. At one stage, he was seen to be frothing at the mouth. 11. Later, when he seemed to be recovering more contact with reality, the accused enquired of a police officer whether the officer was "a real person". He also asked, seemingly sincerely, why he had been detained and placed in handcuffs. 12. When interviewed at 8:45 AM, he spoke of having "lost my mind in the fuckin' house", and having been "stuck in this trip for like days on end". He also spoke of having consumed too much MDMA, with the effect that he came to believe that the deceased "became the demon". 13. In a later, formal interview, he explained that "in my head there was a demon there… I had to fight and kill it", in order to save his own life. Later he spoke of the realisation that "it was actually my best mate that I just killed". 14. A post-mortem conducted on the body of the deceased two days later showed extensive injuries to his neck, head and face; facial bone fractures; oral injuries including broken teeth; fractures of the ribs and breastbone; extensive defensive injuries; bleeding, bruising and swelling to the brain; and aspiration of blood in both lungs. 15. Examination of the concentration of MDMA in the blood of the accused indicated that, at the time of the attack upon the deceased, the drug would have been within "toxic range". Dr Eagle, qualified by defence 1. To state now the effect of the report of Dr Eagle with great succinctness, it is that when she saw the accused in custody some months after the alleged offence, on 22 August 2019, he was mentally ill and medicated. He confirmed that he had never previously had cause to get help with regard to any mental illness. He spoke of hallucinations that he had experienced in custody well after the alleged offence. It was noted that the accused has no prior criminal record. 2. The mother of the accused had spoken with the psychiatrist, and said that, after the alleged offence, the accused had spoken of "devils, demons, voices were everywhere". His mother confirmed that although those manifestations no longer occurred, the accused continued to experience "paranoia". 3. Dr Eagle diagnosed the accused with a psychotic illness, and noted that he had already been diagnosed in custody with treatment-resistant schizophrenia, a chronic psychotic disorder. She also diagnosed substance use disorder, in remission in the custodial setting. 4. Dr Eagle was of the opinion that the accused was fit to be tried. 5. On the other hand, she came to the view that, at the time of the alleged offence, the accused was experiencing "an episode of psychosis that appears to have been precipitated by the use of MDMA and cannabis". 6. Dr Eagle went on to discuss the elements of the defence of mental illness, and expressed the view that they could be established on the balance of probabilities. To expand on that opinion, she felt that the psychosis from which the accused was suffering at the time of the alleged offence should be understood as a defect of reason, arising from a disease of the mind. Although she considered that the accused "likely had the capacity to appreciate the physical quality of his actions" at the time of the alleged offence, the psychiatrist came to the view that he did not have the capacity to appreciate the wrongfulness of those actions. 7. As for the partial defence of substantial impairment, Dr Eagle felt that the medical elements of that partial defence could also be established on the balance of probabilities. In conformity with that statutory ground of partial exculpation, she regarded the psychosis as an abnormality of mind arising from an underlying condition. Professor Greenberg, qualified by the Crown 1. Professor Greenberg also noted the absence of prior psychiatric history, although he did recount that the accused, on an occasion previous to that of the alleged offence, after having used ecstasy, briefly "thought his workmates were demons". 2. On examination, Professor Greenberg felt that the mental status of the accused was essentially undisturbed in certain senses, including an absence of delusions, an absence of disorder of thought control, and an appropriate level of insight. 3. The author recounted in detail all the evidence with which he had been provided about the presentation of the accused before, during, and after the alleged offence. 4. The conclusion of Professor Greenberg was that, at the time of the alleged offence, the accused was suffering from a drug-induced psychosis that "came on" during his period of intoxication. The professor further opined that, at that time, there was no evidence of a pre-existing or extant mental illness that "was triggered or exacerbated by his drug use." 5. As for the mental state of the accused in recent times, Professor Greenberg diagnosed a schizophrenic disorder. 6. In providing a medico-legal analysis of the mental state of the accused at the time of the alleged offence, Professor Greenberg referred to the recent decision of Fang v R [2018] NSWCCA 210. In a nutshell, as for the defence of mental illness, the author did not consider that, on balance, the accused was suffering from a "defect of reason caused by disease of the mind". That was because the professor believed that, although the accused was indeed psychotic at the relevant time, it was caused by his ingestion of various substances, and not from any underlying disease of the mind. 7. In light of the subsequent development of a schizophrenic disorder, the professor did believe, however, that the accused "likely had an underlying vulnerability to developing this mental illness" at the time of the alleged offence. 8. Pursuing contingently the other elements of the defence of mental illness, the professor expressed the opinion that the accused did appreciate the nature and quality of his act, in the sense of appreciating that he had killed the deceased with his hands (having said that, the professor was of the opinion that the accused characterised the deceased as "an evil demon"). 9. As for the final element of the defence – lack of appreciation of the wrongfulness on the part of the accused of his own acts – Professor Greenberg expressed the opinion that the accused "did not know his conduct was wrong because he could not reason with a moderate degree of sense and composure about whether his conduct, as seen by a reasonable person, was wrong" (emphasis in original deleted). 10. Finally, as for the medical elements of the partial defence of substantial impairment, Professor Greenberg was not of the opinion that, at the time of the alleged offence, the accused "was substantially impaired by an abnormality of mind arising from an underlying condition". Rather, the professor felt that the accused merely possessed "an underlying vulnerability to developing" the abnormality of mind constituted by the schizophrenic disorder that developed subsequently, as a result of the intoxication with the various substances that I have recounted. Divergence between experts 1. In other words, my understanding is that the two psychiatrists agree about a great deal: that, at the time of the alleged offence, the accused was psychotic; at the time, he did appreciate the nature and quality of his acts; at the time, he did not appreciate the wrongfulness of what he was doing; and, subsequently, he has developed schizophrenia or a schizophrenic disorder. 2. The fundamental point of divergence between them is: whether, on the one hand, the mental state of the accused at the time of the alleged offence can be "sheeted home" to an inherent pathological condition from which he suffered at the time; or, on the other hand, whether his psychosis should be understood as the effect of intoxication with various substances, combined with a certain vulnerability to developing a mental illness subsequently, as a result of the effect of those substances. Another aspect 1. Finally, in terms of material placed before me, I was told from the Bar table that the father of the deceased is a rock musician who rose to prominence in the 1970s in Australia, and who retains something of a public persona. Submissions of the parties 1. Senior counsel for the accused explained that he believed the following issues would arise for the determination of the tribunal of fact at the trial. I understood from the following summary of issues that there is no question of the physical and mental elements of the offence of murder themselves being placed in dispute. 2. First, whether, on the balance of probabilities, at the time of the physical acts causing the death of the deceased, the accused was in a mental state that should lead to a verdict of not guilty on the ground of mental illness, with subsequent medical detention: see R v M'Naghten (1843) 8 ER 718 and s 38(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW). (No reference was made by either counsel to the impending Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), no doubt because it is not yet in force). The point was made that the only area of dispute between the two psychiatrists and the parties in that regard is whether the psychosis suffered by the accused at the time of the alleged offence was founded upon a disease of the mind (Dr Eagle), or founded upon intoxication with drugs and alcohol (Professor Greenberg). If the former were established on balance, it was submitted, the defence would be established; if it were not, the defence would fail. 3. Secondly and contingently upon the failure of the primary defence, whether the accused, on balance, was substantially impaired at the time of the alleged offence, with the result that he should be found guilty of manslaughter as opposed to murder: see s 23A of the Crimes Act 1900 (NSW). Again, the point of divergence between the experts was said to be whether the psychosis was an underlying condition inherent to the mind of the accused, or rather something "external" that was precipitated by alcohol and prohibited drugs. 4. Thirdly and further contingently upon the failure of those two defences, whether the Crown could prove beyond reasonable doubt that the accused did not honestly believe that it was necessary to do what he did in self-defence, in accordance with the "first leg" of the statutory "defence" of self-defence: see Division 3 of Part 11 of the Crimes Act. It was explained that the belief on the part of the accused that he was being menaced by a demon would be central to this contention. It was also explained that there would be no reliance upon the "second leg" of self-defence, with the result that the contention of the accused would be that he should be found guilty of manslaughter on the basis of excessive self-defence, and not completely acquitted of homicide. 5. Having foreshadowed the issues that he believed would need to be determined by the tribunal of fact at trial, senior counsel explained that the application for a judge alone trial rested upon five bases. 6. The first was the proposition that the primary issue between the Crown and the accused set out above means that it is most unlikely that the tribunal of fact would need to consider the partial defence of substantial impairment. It was accepted that that partial defence certainly involves considerations of community standards that are arguably only assessed by a judge (as opposed to twelve members of the wider community) with great difficulty. But the submission in a nutshell was that there are only two practical outcomes with regard to the primary defence of mental illness, as follows. 7. Either the tribunal of fact would be satisfied that the psychosis was an inherent disease of the mind, and thereafter go on to return a verdict of not guilty on the ground of mental illness. The result of that would be that substantial impairment would not need to be considered. 8. On the other hand, if the tribunal of fact found that the psychosis was "external", with the result that the defence of mental illness were rejected, and substantial impairment needed to be considered, then that partial defence would fail with regard to its "first leg", because the tribunal of fact would identically reject the proposition that the accused suffered from any inherent "abnormality of mind arising from an underlying condition". The result of that would be that the normative judgment that comes "later" in substantial impairment would not require consideration by the tribunal of fact. 9. Either way, it was said, in a trial by judge alone, the tribunal of fact would not be required to apply the particular community standard that is central to the consideration of substantial impairment. 10. In short, senior counsel submitted at the hearing that, although consideration of the partial defence of substantial impairment was theoretically possible, and that partial defence would need to be "left", on the facts of the matter and the opinions of the experts summarised above, it would be most unlikely in a practical sense to come before the tribunal of fact for consideration. 11. A similar point was made in relation to the determination of community standards as to any other aspect of the trial: they will not be required to be brought to bear on the matter, because determination of the other elements of the defence of mental illness and the partial defence of substantial impairment will be a matter of assessment of medical opinion, and determination of the "first leg" of self-defence is entirely subjective (in contrast to its "second leg"). 12. And in any event, it was said in written submissions and emphasised at the hearing, the consideration of the "application of objective community standards" referred to in s 132(5) of the Criminal Procedure Act is not explicitly referred to in the more recent s 365 of the same Act. I understood the submission to be that the objective intention of Parliament is that, in the current public health emergency, trials by judge alone are to be more readily facilitated, including with regard to criminal allegations involving the application of community standards. 13. Secondly, senior counsel for the accused submitted that the directions that would need to be provided to a jury would be complex, and relate to a large number of different and difficult matters: the elements of the offence of murder, including voluntariness and the mental elements; the defence of mental illness; the partial defence of substantial impairment; and the "first leg" of self-defence. And of course the onus and standard of proof with regard to the first two defences is in sharp contrast to that of self-defence. 14. Thirdly, he submitted that the extremely brutal death of the accused gives rise to the risk that a jury of twelve laypersons may be affected by great prejudice against the accused. 15. Fourthly, he invited attention to the fact that the matter had already attracted considerable pre-trial publicity, due to the public stature of the father of the deceased, and would be likely continue to do so. While senior counsel for the accused conceded that directions to the jury may mitigate the prejudicial impact of a highly-publicised trial, he submitted that the ongoing publicity could well pose a further danger of prejudice to the accused. 16. Fifthly and finally, he submitted that in light of the current global public health emergency, the intended effect of the Covid-19 Legislation Amendment (Emergency Measures) Act (2020) (NSW) was generally to facilitate more judge alone trials. That particular legislative intention in light of the public health emergency was emphasised at the hearing before me. He also suggested that not only would a judge alone trial lead to the matter being shortened, but it could also facilitate the trial beginning at an earlier date. That was said to be not only in the interests of the administration of justice generally, but also of those who love the deceased, and indeed the accused, who is after all an imprisoned person who is, on both cases, suffering from a severe mental illness. 17. The Crown prosecutor respectfully agreed with all that had been said by senior counsel on behalf of the accused, except for one matter. It was explained that the simple basis for resistance to the application was the deep undesirability of a judge determining the normative standard to be found in the partial defence of substantial impairment. And the possibility, even if it be a small one, of that outcome was said to tell powerfully against the success of the application. Determination 1. As for myself, like the Crown prosecutor, I respectfully agree with all that was said on behalf of the accused, save for one matter. I shall state my points of agreement succinctly. 2. I agree that explaining the elements of murder, the defence of mental illness, the partial defence of substantial impairment, and the "defence" of excessive self-defence to 12 laypersons will be difficult. That is so not only because of the multiplicity of legal questions that the jury will need to be asked and answer, and not only because of the differing burdens and standards of proof that the jury will need to understand and apply. It is also because of the process whereby the jury will need to disregard certain elements of murder for the purposes of the defence of mental illness, but contingently reflect upon them for the purposes of substantial impairment and excessive self-defence: see Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28 and R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226. 3. Having said that, I do not believe that the problems in explanation and comprehension of those legal matters are insurmountable, especially since I will have the benefit of the assistance of highly experienced criminal counsel in doing so. 4. I also accept that the horrific nature of the violence inflicted upon the deceased may prejudice a jury against the accused. But I am confident that, with the assistance of both counsel, I can craft persuasive directions that would minimise the risk of such prejudice. I also consider that, before empanelment, the jury panel could be informed of that aspect of the case, and persons who express discomfort with the subject matter would be readily excused by me. 5. I also accept that, bearing in mind that the father of the deceased is a person of some renown, it is possible that members of a jury could have feelings for and against him and his family. Having said that, the father of the deceased was, I believe, most well-known many years ago. I also think it most unlikely that any member of the public would determine the outcome of this murder trial based upon his or her opinion of a relative of a deceased young man who has died in these tragic circumstances. Furthermore, I believe that that is the kind of matter that is very readily forestalled by persuasive directions. 6. I also accept that, both generally and specifically – in the context of the public health emergency that Australia is currently enduring – a trial by judge alone could be listed, conducted, and resolved more quickly than a trial by jury. To be weighed against that logistical convenience, and the further facilitation by Parliament of it by way of the recent amendment, is the abiding need to ensure nevertheless that to proceed in that way would be in the interests of justice. 7. I also accept that, speaking generally, a judge is as well-equipped as a jury to determine whether physical and mental elements of an offence particular to an accused person have been proven; which of competing medical opinions are to be accepted; and whether a subjective belief in the necessity of doing something in self-defence has been disproven. In other words, I accept the proposition that none of those elements of the offence or various defences tell against the application. 8. Turning to the fulcrum of the application, I understand the force of the submission that, as a practical matter, the central normative question within substantial impairment is perhaps unlikely in the circumstances of this case to require determination by the tribunal of fact, whether judge or jury. 9. Even so, both parties seemed to agree that the partial defence would need to be left to the consideration of the tribunal of fact, in light of the opinion of Dr Eagle, and the legal requirement that defences be left for consideration that are, to state the test broadly, reasonably open. 10. In other words, substantial impairment cannot conclusively be ruled out as an issue in this trial. Indeed, it has been "ruled in", at least as a theoretical matter, in light of the opinion of Dr Eagle. 11. Turning now to the related question of whether one can be sure that it could not arise as a practical matter, I raised with senior counsel for the accused whether there could possibly be any difference between "a defect of reason arising from a disease of the mind" and "an abnormality of mind arising from an underlying condition". I am by no means sure that there is a difference, and I know of no authority on the point. Having said that, in creating the partial defence to be found in s 23A of the Crimes Act, and its differently formulated predecessor in the same section, Parliament has (no doubt informedly) declined to replicate the primary elements of the defence of mental illness. 12. The point of my concern is this: if there is any chance of those concepts being different, or applying differently to the difficult question of whether a "vulnerability" could be thought of as a "disease" or an "abnormality", that would mean that one cannot be sure that the thesis of senior counsel that substantial impairment could not arise as a practical matter is correct. 13. As well as that, one knows from experience that the predictions of counsel and judges as to how a trial will run, and which issues will or will not arise, can never be completely reliable, in light of the organic nature of litigation. 14. In short, in my opinion I believe that it cannot be definitively ruled out that the tribunal of fact will need to consider substantial impairment in a real way, including its normative component. 15. As for that component, I believe that it is quintessentially a matter for the reflection and discussion of twelve members of the community. In my respectful opinion, it is a question that is only answered with great difficulty –and perhaps not entirely satisfactorily – by a single person, who inevitably brings his or her individual if not idiosyncratic thoughts and feelings about the world and the human beings who inhabit it to the question. 16. Other judges have spoken about the difficulty of grappling with the normative question: see, for example, the judgment of Hamill J in R v Hutchison & Wilkinson [2018] NSWSC 1759; as have I: see R v Eyuboglu [2019] NSWSC 181. And yet in my experience, juries have no difficulty in coming to a verdict that reflects their answer to the normative question: see as an example only R v Cadman [2019] NSWSC 634. That is understandable, because they engage in an intense process of discussion and reflection between a large number of persons in which their thoughts and feelings about the two different forms of homicide are able to be fully developed. 17. In short, I regard myself as poorly qualified to answer the normative question crucial to substantial impairment. Indeed, I go further: in light of my extensive exposure – including but not limited to my role as a judge of the Common Law Division of this Court – to the administration of criminal justice; to the nuances within the two forms of homicide; to the substantive and procedural history of the development of murder and manslaughter; to the various legal and factual forms that the two kinds of homicide can take; and to bail, sentencing, and parole patterns attaching to them, one might say that I am "anti-qualified" to determine the normative question. To state my view in more orthodox language: far from being an advantage, I believe that my legal knowledge and practical experience of the offence of homicide is a positive disadvantage in determining the normative question that is so important to substantial impairment. 18. That to my mind is a powerful, indeed determinative, argument against this trial being conducted by judge alone. I am affirmatively satisfied that to do so would not be in the interests of justice. Conclusion 1. In summary, I agree that no other factor argues forcefully for a trial by jury, and there are some important arguments in favour of a trial by judge alone. I believe, however, that there is some prospect that the normative component of substantial impairment will be a "live issue" in the trial. I believe that it is very much to be preferred that a jury determine that question rather than me. Despite the force of the submissions of senior counsel for the accused, I cannot accept that it would be in the interests of justice for this trial to proceed with the possibility of that question being determined without the views of twelve members of the community being brought to bear upon it. For those reasons, the statutory test is not made out, and I therefore do not propose to grant the application. Order 1. Application for trial by judge alone refused. ********** 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: 13 November 2020