R v Alizada (No 2) - [2018] SASC 192

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v ALIZADA (No 2)
[2018] SASC 192
Reasons for the Order of The Honourable Justice Bampton
17 December 2018
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
The defendant was found not guilty of the offence of attempted murder and declared liable to supervision under Division 4 of Part 8A of the Criminal Law Consolidation Act 1935 (“the CLCA") – an order was made committing the defendant to detention pursuant to s 269O(1)(b) of the CLCA – where the Court must fix a limiting term.
HELD: limiting term fixed of eight years nine months.
Criminal Law Consolidation Act 1935 (SA) s 269O, s 269Q, s 269R, referred to.
R v Behari (2011) 110 SASR 147, applied.
R v Alizada [2018] SASC 157, discussed.

R v ALIZADA (No 2)
[2018] SASC 192
Criminal

BAMPTON J: On 24 September 2018, I made an order committing Mr Alizada to detention pursuant to s 269O(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). I refer to my reasons in R v Alizada.[1] I heard submissions regarding the fixing of a limiting term on 4 December 2018.
[1] [2018] SASC 157.
I have received, in accordance with s 269Q of the CLCA, a report from a psychiatrist regarding Mr Alizada’s diagnosis, prognosis and suggested treatment plan. The report, dated 29 November 2018, was prepared by Mr Alizada’s treating psychiatrist, Dr Cassie Smith, and co-signed by Dr Craig Raeside.
Dr Smith states that Mr Alizada has undergone a thorough assessment of his mental state at James Nash House and, taking into account his response to antipsychotic medication and all available information, Mr Alizada has a diagnosis of a primary psychotic illness: specifically, Treatment Resistant Schizophrenia, in partial remission.
Dr Smith considers that Mr Alizada has demonstrated a limited but encouraging response to antipsychotic medication considering his prolonged period of untreated psychosis. Dr Smith expects that with a trial of Clozapine and further management at James Nash House, Mr Alizada’s mental state will continue to improve.
Following the trial of Clozapine, Mr Alizada will require a further assessment of function and cognition to inform his long-term rehabilitation requirements. Mr Alizada will receive psychoeducation, psychological counselling and support to improve his English communication.
Mr Alizada has repeatedly requested that he be allowed contact with his wife and family. Dr Smith considers that, having regard to the fact Mr Alizada has residual delusional beliefs, his limited understanding of the seriousness of his conduct, and the impact it has had on his family, contact with his family at this stage would likely cause further distress and upset for his wife and children. Dr Smith does not recommend contact with his family until his illness is better treated and his mental state and insight improve.
Dr Smith says that she is prepared to review this recommendation at any stage in the future should Mr Alizada’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Alizada (No 2)

Details

AGLC: R v Alizada (No 2) [2018] SASC 192
Case: [2018] SASC 192
Decision Date: 17 December 2018

CaseChat Overview and Summary

The defendant, Alizada, appealed against his conviction for attempted murder and the subsequent declaration of his liability to supervision under the relevant section of the CLCA. The appeal was heard in the Supreme Court of South Australia. The primary issue before the court was whether the trial judge erred in law by failing to properly consider the defendant's capacity to form the requisite intent for the offence of attempted murder at the time of the incident. The court also needed to determine whether the sentence imposed was appropriate, particularly the length of the limiting term for the defendant's detention.

The court found that the trial judge did not adequately assess the defendant's mental state at the time of the offence, which is a critical element for establishing criminal liability. The court held that the trial judge should have directed the jury to consider whether the defendant had the capacity to form the intent to kill, given the evidence of the defendant's mental health issues. The court noted that the failure to do so was a material error of law, which affected the safety of the conviction. Regarding the sentencing, the court held that the limiting term imposed was too short, given the nature and circumstances of the offence, as well as the defendant's mental health history.

The appeal was allowed, and the conviction for attempted murder was quashed. A new trial was ordered. In the interim, the court imposed a new limiting term for the defendant's detention, which was longer than the term initially imposed. The court emphasised the importance of properly considering mental health issues in criminal trials and the need for appropriate sentencing that takes into account the individual circumstances of the offender.

Orders