Notes on criminal courts (1/3): So you think you can defend

3 sentencing cases were observed at NSW Local and Supreme Court. On charges, 2 concern the crime of murder and the other concerns Common Assault and ABH (actual bodily harm). The observation study is part of CCP’s curriculum (Civil and Criminal Procedure).

Case 1: R v Weijie He 2021/00017077

Presiding officer: Justice J Lonergan

This is my first time observing a murder case, I admit I trembled??. By the time I reached court room, it was already full. Most were occupied by students doing the same assignment. The only seat I can see available was situated at the front row on the very left. USYD didn’t teach us which side of the court the defendant (D) will show up. So the moment when the police pushed the wheel chair sat by D, attached with chemical tubes and parked in front me, I was shocked by such proximity. I could smell the chemicals. I tried really hard not to throw up. Whoever designed this venue needs to experience the setting themselves to know the impact. The designer owes a duty of care not to put case observer through such mental shock. Only wish that is a common law rule. ?

21-yr-old D attacked 19 yr-old victim with a hammer and two knives in their apartment. D stabbed her to death before jumping off the building. The now-24-yr-old D pleaded guilty to murder. As per S19A of the Crimes Act 1990 (NSW), a person who commits murder is liable to imprisonment for life. However, mental impairment can be a partial to full defence. This includes a substance-induced mental disorder.

D argued he was delusional at the time of the murder, and suffered from a drug-induced psychosis, instead of intoxication from the use of drugs. D’s barrister had a good long debate with the prosecutor on when the drug-induced psychosis occurred and if D’s moral culpability was reduced.

In court, D was shown to have a pattern of binge drug ‘nitrous oxide gas’. A large body of research literature including psychiatrists and medicine experts were submitted to the court. D’s barrister tried to craft the argument flow:

• D used an excessive amount of drugs. These drugs can induce vitamin B12 and other deficiencies. These deficiencies can cause psychosis.
• D’s abnormal behaviours were observed 2 days before the event. Drug intoxication only has 10 minutes effect whilst the psychosis has a longer effect on human.
• D jumped off a 4-story building (caused by psychosis).
• D had a fixated thinking that someone else was involved in the murder.

It’s a tactical approach just as D’s early plea to attract 25% reduction. Almost every point in that argument serves the purpose of establishing the defence and minimising the sentence. When examining closely, logic flaws are clearly present:

• On the day of the murder, no one can testify whether D ingested and how much drugs were consumed before the act. D bears the onus to convince court that this is not a self-induce intoxication.
• The prosecutor pointed from text messages exchange of the victim and her friend, that D’s behaviour was less strange inside the apartment. This weakens the continuous psychosis effect. Cross examination on medical professionals supported the conclusion that the probability of psychosis cannot be determined. It was more like a drug intoxication.
• Extra-crucial punishment or self-inflicted injuries can be considered as mitigating factor but not sufficient to support psychosis argument.
• D’s attribution on someone else broke into the apartment later was proven to be his parent’s tactical coach.

Justice Lonergan in response tried uncovering the motive behind the act. The motives behind killing a partner can be anger, rage and jealousy. The evidence of a controlling and coercive domestic relationship weighs more than the possibility of psychosis in this case. D had an ongoing speculation that the victim was having a relationship with another guy. The victim tried to stop D from taking more drugs and said she was worried about him. Days before the event, the victim expressed in text messages to a friend she wanted to leave D. No exact facts here were associated with psychosis-related behaviours but rather a pattern of domestic violence.

Overall, I think the judge tried her best to assess the situation and exercising discretion (objective seriousness of the offence, subjective feature of offender, aggravating and mitigating factors and so on). It is worth mentioning Australia has an adversarial legal system, meaning the independent judge actually plays a rather passive role, deciding the claims based solely on the evidences and arguments presented forward. In a claim where the victim was murdered, and the defendant tried to argue mens rea, it is so easy to deviate into the rabbit holes of medical evidence yet overlook the holistic nature of the relationship from the victim’s angle, seeing what indeed occurred.

2 out of 3 cases I observed had mental health as partial to full defence. All 3 cases supplied retrospective reports produced by medical professionals such as psychologist and psychiatrist to the court as assessment materials. It seems now an essential practice for D’s lawyer to order a psychological profile. The authors of those reports can be reputable professionals who are seen as authority in their industries. However, the submitted report can be one of good written quality but poor reliability.

To profile D and the past events solely based D’s recollection is itself a biased exercise. In the absence of a deceased victim, such recollection is unable to be cross-examined, fine important details get lost in the process. To avoid the barbaric ‘better to kill than to maim’ situation, such psychological evidence ought to be assessed with caution, especially if it were to be a defence or mitigating sentencing factor.

The judge has a duty to apply instinctive synthesis, and to balance often incommensurable factors. Not to forget about the prosecutor’s role, the reasonable prospect of conviction is highly depended on the quality of the admissible evidence. I know public servants don’t get paid as half as some defence’s lawyer. The motivation of a prosecutor is never the billable hours he/she can get, but should be in protecting the general public interest. The strength of the admissible evidence has high correlation with prosecutor’s due diligence.

In criminal justice, presumption of innocence is one of the common law principles to ensure human rights are protected – so you are innocent unless proven guilty. In all 3 cases I observed, Ds pleaded early guilty to attract sentencing discount. To the designer/architect of the court, in your future design, a more generous spatial gap in-between defendant who plead guilty and the general case observer would be greatly appreciated ??.