Supreme Court New South Wales Medium Neutral Citation: R v Sheridan [2022] NSWSC 1669 Hearing dates: 08 September 2022 Date of orders: 09 December 2022 Decision date: 09 December 2022 Jurisdiction: Common Law Before: Garling J Decision: Crown bears the onus to prove facts relevant to s 4(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act (NSW) 2020 on the balance of probabilities. Catchwords: MENTAL HEALTH — Criminal proceedings — Defence of mental health impairment — Exception to defence if impairment caused solely by temporary effect of ingesting substance or substance use disorder — Onus and burden of proof — Onus on Crown to prove exception to defence on balance of probabilities Legislation Cited: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ss 4, 28 Cases Cited: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 41 Dowling v Bowie (1952) 86 CLR 136; [1952] HCA 63 R v Fang (No. 3) [2017] NSWSC 28; 264 A Crim R 554 R v Miller [2022] NSWSC 802 Texts Cited: Not applicable Category: Procedural rulings Parties: The Crown Chadley Sheridan (Accused) Representation: Counsel: R Munro (Crown) B Robinson (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Ramsland Laidler Solicitors (Accused) File Number(s): 2021/74828 Publication restriction: The name of the child victim must not be published or broadcast in a way that connects them with these proceedings: s 15A of the Children (Criminal Proceedings) Act 1987 Judgment 1. On the fourth day of the trial of the Accused, Chadley Sheridan, upon an Indictment charging him with the murder on or about 15 March 2021 of Hamish Dunn ("the Deceased"), I heard argument about the proper directions to be given to the jury with respect to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the Act"). 2. At the conclusion of the argument, I indicated the directions which I would give and informed the parties that I would deliver reasons in due course. 3. These are my reasons for that ruling. Factual Background 1. It is not in issue in the trial that between 10pm and 11pm on 15 March 2021, the Accused killed the Deceased in his bedroom by strangling him. 2. It is also not in issue that at the time that occurred, the Accused was suffering from a drug-induced psychosis which had the effect that such was his impairment that he did not know that his act was wrong. 3. Equally, it does not seem to be in dispute that the drug-induced psychosis was at least partly the result of self-induced intoxication. 4. As I understand the evidence that is to be adduced from the experts, Dr Kerrie Eagle, a Consultant Psychiatrist instructed by the Crown, will express her opinion that the impairment of the Accused was caused solely by the temporary effect of his drug taking. 5. Dr Olav Nielssen, a Consultant Psychiatrist qualified to express an expert opinion on behalf of the Accused, will give evidence that the impairment of the Accused at the time he killed the Deceased, was not caused solely by the temporary effect of his drug taking, but rather by the combined effect of the drugs which he took together with an underlying and likely chronic substance-related psychotic illness, which Dr Nielssen concluded was a mental illness. The Legislation 1. The Accused raises a defence under s 28 of the Act, which is in the following terms: "28 Defence of mental health impairment or cognitive impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person— (a) did not know the nature and quality of the act, or (b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). (2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities. (3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect. (4) … (a) … (b) ..." 1. In order to understand the effect of s 28, it is necessary to consider the definition of "mental health impairment" in s 4 of the Act. It is in the following terms: "4 Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if— (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons— (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by— (a) the temporary effect of ingesting a substance, or (b) a substance use disorder." The Issue 1. The issue, which is one of statutory interpretation, relates to the onus and standard of proof. In short, the question is whether, having regard to the provisions of s 4(3) of the Act, the words provide an exclusion or exception such that if the Crown seeks to rely upon that exception, it bears the onus of proving the facts which give rise to that exclusion and, if so, the standard of proof which falls upon the Crown. 2. The latter point arises because of the terms of s 28(2) of the Act which provides that the question of whether a defendant had a mental health impairment is a question of fact to be determined by the jury on the balance of probabilities. Crown Submissions 1. The Crown submits that the terms of s 4(3) of the Act do not cast any onus at all on the Crown. 2. The Crown commenced its submissions by noting that the Act had not brought about any substantive change to the previous common law position which was that the Accused bore an onus to establish the defence of mental illness. The Crown noted that at common law, an accused was presumed to be sane and possessed of a sufficient degree of reason to know the nature and quality of their act, unless they proved to the contrary on the balance of probabilities: see R v Fang (No.3) [2017] NSWSC 28 at [68]‑[70]. 3. The Crown submitted that the purpose of s 4 of the Act was to provide a statutory definition of what constitutes a mental illness for the purposes of the s 28 defence. Accordingly, the Crown submitted that onus of demonstrating that any such impairment relied upon was not caused solely by the temporary effect of ingesting a substance, or a substance abuse disorder, rested on an accused. 4. Alternatively, the Crown submitted that another interpretation of the provisions of s 4 was that the provisions do not impose an onus on either the Crown or the Accused. 5. In its submissions, the Crown acknowledged that in R v Miller [2022] NSWSC 802 Cavanagh J had considered the same question, and upon the same submissions of the Crown as were made to me, and had determined that in a case where the Crown seeks to prove that the facts required for the operation of s 4(3) of the Act are present, it is the Crown who bears the onus of establishing those facts for the purpose of the application of s 4(3). His Honour also held that it was for the Crown to establish those facts on the balance of probabilities. 6. The Crown argues that I would not follow the decision in Miller essentially because, in his reasons, Cavanagh J had failed to consider the Crown's arguments based upon two cases, namely: Dowling v Bowie (1952) 86 CLR 136; [1952] HCA 63 and Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 41, that there is a distinction to be made between an offence provision which seeks to ascribe liability for an offence, or an exception for an offence, and an exception where a defence to a charge is being considered. Submissions for the Accused 1. The Accused submitted that, on a proper statutory interpretation of the provision of s 4(3) of the Act, the words there were an exception and, accordingly, the onus fell on the Crown to establish the exception. Discernment 1. As an ordinary principle of general application, whilst I am not bound by the decision of Cavanagh J in Miller, I would for reasons of judicial comity and legal certainty, generally follow that decision unless I was convinced that it was plainly wrong. 2. I am not so convinced. 3. As the statute makes explicit, the onus is on an accused to establish the defence of mental health impairment under s 28 of the Act. The provisions of s 4(1) describe what a mental health impairment is. The provisions of s 4(3) provide for an exception or an exclusion to the existence of a mental health impairment, namely when a person's mental health impairment is not of a kind which can be included within the definition and, accordingly, not available to be relied upon as a defence. 4. The provisions of s 4(3)(a) and (b) are capable of being established by facts. The negative implications of that subsection, namely that an accused's impairment was not caused solely by either the temporary effect of ingesting a substance, or a substance use disorder, would place a burden on an accused which would be very difficult to discharge. The accused would need to attempt to prove a negative. 5. As well, it seems to me, as a matter of principle, that such an exception or exclusion ought rest on the prosecution. 6. The Accused's argument that the onus on the Crown was one beyond reasonable doubt is unpersuasive. In the course of a criminal trial the Crown is obliged to prove the elements of an offence beyond reasonable doubt. Occasionally there may be a fact or facts which are also to be so proved but, generally speaking, there is no onus on a prosecution to prove every fact beyond reasonable doubt, and there seems to be no reason to include these facts as being facts which are required to be proved beyond reasonable doubt. 7. For that reason, I conclude that the onus of proof which rests on the Crown is that of one on the balance of probabilities. 8. In this respect, my judgment entirely accords with that of Cavanagh J. 9. Accordingly, the jury will be directed along the lines of this ruling. ********** Amendments 12 December 2022 - Correction of appearances on coversheet 12 December 2022 - Typographical errors 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: 12 December 2022