R v Flame (No 3) [2020] NSWSC 1604

Supreme Court New South Wales

Medium Neutral Citation: R v Flame (No 3) [2020] NSWSC 1604 Hearing dates: 26 October 2020 Decision date: 26 October 2020 Jurisdiction: Common Law Before: Button J Decision: Evidence of drug use in custody not excluded Catchwords: CRIMINAL LAW – murder – trial by jury – whether evidence of drug use in custody by the accused after killing should be left to the jury – conceded by experts that the accused is schizophrenic – defence counsel submits evidence of drug use may be used for a credibility purpose and is prejudicial – relevance of the evidence to the consideration of the accused's state of mind at the time of the killing – evidence not excluded Legislation Cited: Evidence Act 1995 (NSW), s 137 Category: Procedural and other rulings Parties: Regina (Crown) Mathew Flame (Accused) Representation: Counsel: G Christofi (Crown) J Stratton SC & T O'Rourke (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Archbold Gittani Lawyers (Accused) File Number(s): 2018/339226

EX TEMPORE Judgment – REVISED

Background 1. In this trial there is no dispute that on 4 November 2018 the accused killed the deceased, his "best mate". And as I said to the jury on Friday, there seems to be no dispute that at the time the accused believed that he was in danger from the deceased, indeed that the deceased was a demon. 2. It has been explained by senior counsel for the accused that the primary issue in the trial is the question of mental illness, and in particular whether the accused at the time suffered from a disease of mind. That needs to be proven by the accused on balance. 3. The thesis for the Crown, speaking very primitively, is that there was nothing wrong with his mind at the time; it was the effect of a mixture of alcohol, cannabis, and a large quantity of MDMA. The Crown in particular points to the fact that, for a reasonably extended period after the killing, the accused, once the drugs "wore off" to use informal language, seemed to be mentally "alright", again to use the term of a layperson. 4. An important part of the defence thesis, on the other hand, is that sadly the accused, it seems, is now severely mentally ill and, indeed, schizophrenic. And an important part of the thesis of the defence experts is that that subsequent illness provides a powerful line of reasoning that there was indeed a disease of the mind on 4 November, and the tragic fatality cannot just be ascribed to the effect of temporary intoxication by prohibited drugs.