R v Alizada
[2018] SASC 157
•24 September 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v ALIZADA
Criminal Trial by Judge Alone
[2018] SASC 157
Reasons for the Orders of The Honourable Justice Bampton
24 September 2018
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
The defendant was charged with the attempted murder of his wife - he pleaded not guilty on the grounds of mental incompetence - investigation into the defendant's mental competence dealt with by way of a Judge sitting alone - Court determined to proceed first with the question of the defendant's mental competence to commit the offence in accordance with s 269FA of the Criminal Law Consolidation Act 1935 (SA) ("the CLCA") - Court accepted psychiatric evidence - finding recorded that the defendant was mentally incompetent to commit the offence of attempted murder pursuant to s 269FA(5)(b) - finding recorded that the objective elements of the offence of attempted murder established beyond reasonable doubt pursuant to s 269FB(2) - defendant found not guilty of the offence of attempted murder pursuant to s 269FB(3) and declared liable to supervision under Division 4 of Part 8A of the CLCA - order made committing the defendant to detention pursuant to s 269O(1)(b).
HELD:
1. Finding recorded pursuant to s 269FA(5)(b) that the defendant was mentally incompetent to commit the offence of attempted murder.
2. Finding recorded pursuant to s 269FB(2) that the objective elements of the offence established beyond reasonable doubt.
3. Pursuant to s 269FB(3), defendant found not guilty of the offence of attempted murder and declared liable to supervision under Division 4 of Part 8A of the CLCA.
4. The defendant is committed to detention pursuant to s 269O(1)(b) of the CLCA.
Criminal Law Consolidation Act 1935 (SA) Part 8A, s 269, referred to.
R v ALIZADA
[2018] SASC 157Criminal: Trial by Judge alone
BAMPTON J: Rahmatullah Alizada is charged with the attempted murder of his wife, Sideqa Alizada (“the offence”). Mr Alizada was arraigned this morning. Pursuant to s 284 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”), I ordered that a plea of not guilty be entered on his behalf. The defence of mental incompetence to commit the offence has been raised.
Mr Alizada is presumed to be mentally competent to commit an offence unless he is found on an investigation under Part 8A of the Act to have been mentally incompetent to commit the offence with which he is charged.
Mr Alizada has elected to have an investigation under Part 8A dealt with by Judge sitting alone pursuant to s 269B(1) of the Act.
Mental competence
Pursuant to s 269E(2) of the Act, I have determined to proceed first with the trial of Mr Alizada’s mental competence to commit the offence.
Mr Alizada has the onus of displaying the presumption of mental competence pursuant to s 269D of the Act.
The reports of the forensic psychiatrists, Dr Nambiar dated 19 February 2018 and Dr Haeney dated 31 May 2018 and 4 August 2018, have been provided to the Court. All reports have been tendered into evidence by consent.
Dr Nambiar is of the opinion that Mr Alizada suffers psychosis in the context of schizophrenia or delusional disorder. He considers the delusions that Mr Alizada held in regard to the safety of his family and concerns about the stability of his marriage appear to have been an instrumental component in what gave rise to the offence. Dr Nambiar states that, in his opinion, Mr Alizada’s mental health issues satisfy the criteria for mental impairment. Further, as a result of his mental illness, he did not know the nature and quality of his conduct and used a knife to stab his wife because he believed she would leave him and take the children.
Dr Haeney is of the opinion that Mr Alizada suffers a significant mental illness in the form of a psychiatric illness occurring in the context of a mood disorder. That is, he became profoundly depressed, suffering psychotic symptoms, particularly delusions of loss or nihilism. Dr Haeney considers it is more probable than not Mr Alizada’s mental illness affected his ability to know at the time of the offence that his conduct was wrong.
Dr Nambiar and Dr Haeney are therefore of the opinion that Mr Alizada suffers a mental impairment as defined by s 269A of the Act. Dr Nambiar is of the opinion that, pursuant to s 269C(a) of the Act, Mr Alizada at the time of the offence did not know the nature and quality of his conduct.
Dr Haeney is of the opinion that at the time of the offence it is more probable than not that Mr Alizada did not know that his conduct was wrong pursuant to s 269C(b) of the Act. Dr Nambiar and Dr Haeney’s opinions established on the balance of probabilities that Mr Alizada was mentally incompetent as defined under s 269C of the Act to commit the offence with which he is charged. Having regard to those opinions and noting that the prosecution and defence agree, pursuant to s 269FA(5)(a) of the Act, I dispense with the investigation into Mr Alizada’s mental competence to commit the alleged offence.
Pursuant to s 269FA(5)(b) of the Act, I record a finding that Mr Alizada was mentally incompetent to commit the offence of attempted murder.
Objective elements
Having made the finding that Mr Alizada was mentally incompetent to commit the alleged offence, I must inquire into whether the objective elements of the offence have been established pursuant to s 269FB of the Act.
The prosecution relies on the declarations filed in this matter detailed in the list handed to me this morning. The declarations have been tendered into evidence.
Mr Alizada admits the facts deposed to in the declarations. Mr Alizada concedes that the evidence contained in the declarations establishes beyond reasonable doubt the objective elements of the offence. Having regard to that evidence, I record that Sideqa Alizada suffered deep stab wounds to her chest and abdomen and a stab wound to her left thigh. Without surgical intervention, she had a high risk of dying. Those stab wounds were inflicted by Mr Alizada with an offensive weapon, namely a knife.
Accordingly, I record a finding pursuant to s 269FB(2) of the Act that the objective elements of the offence are established beyond reasonable doubt.
Not guilty findings and declaration
Having found the objective elements established pursuant to s 269FB(3) of the Act, I find Mr Alizada not guilty of the offence of attempted murder but declare him liable to supervision under Division 4 Subdivision 2 of the Act.
Supervision order
Having found Mr Alizada liable to supervision, I make a supervision order committing him to detention pursuant to s 269O(1)(b) of the Act. Pursuant to s 269O(2) of the Act, I must fix a limiting term, being the term of imprisonment that would have been imposed if Mr Alizada had been convicted of the offence.
I will hear submissions on the fixing of a limiting term on a date to be agreed with counsel.
Upon the making of the supervision order, the Minister for Health and Wellbeing must provide the Court with a report from a psychiatrist regarding Mr Alizada’s diagnosis, prognosis and suggested treatment pursuant to s 269Q of the Act. The prosecution will provide reports pursuant to s 269R of the Act.
I also order a report pursuant to s 269T of the Act.
These findings were delivered with the assistance of an interpreter.
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