where unidentified intruder hypothesis does not rise to the level of a reasonable possibility
Quick Take
1In a wholly circumstantial murder case, the hypothesis of an unidentified intruder must have a foundation in the evidence to constitute a reasonable possibility; where there is no evidence whatsoever of any third-party intrusion and the hypothesis amounts to mere speculation, it does not rise above the fanciful and does not preclude a finding of guilt beyond reasonable doubt.
2Where the mental health impairment defence under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is raised, the correct reasoning sequence is to first determine whether the Crown has proved the physical element of the offence beyond reasonable doubt, and then to consider the defence; no question of intent arises if the accused is not criminally responsible by reason of mental health impairment.
3The distinction between legal and moral wrongfulness under s 28(1)(b) requires assessment of whether the accused, by reason of mental health impairment, could reason with a moderate degree of sense and composure about whether the act was wrong as perceived by reasonable people — chronic treatment-resistant schizophrenia with residual psychotic symptoms may satisfy this test on the balance of probabilities.
