R v AM - [2021] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v AM
Criminal Trial by Judge Alone
[2021] SASC 64
Reasons for Decision of the Honourable Justice Nicholson
1 June 2021
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPTED MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
The defendant was charged with the Attempted Murder of her son. She was also charged, in the alternative, with Aggravated Endangering Life. She pleaded not guilty to both charged offences by reason of mental incompetence.
The prosecution conceded that the defendant was mentally incompetent at the time of the conduct the subject of the charged offences. The defendant admitted that the objective element of the alternative offence had been established but maintained that the objective element of Attempted Murder had not. The prosecution maintained that the objective element of Attempted Murder had also been established.
The defendant elected for both issues to be determined by a Judge sitting without a jury. The Court proceeded pursuant to section 269F of the Criminal Law Consolidation Act 1935 (SA) and determined first the issue of mental incompetence. The Court considered all relevant witness statements and forensic psychiatric reports provided by the parties.
Held:
1.On the balance of probabilities, at the time of the incident the subject of the charges, the defendant was suffering from a mental impairment, namely a mental illness, and as a consequence, did not know that her conduct was wrong;
2.Beyond reasonable doubt, the objective element of Attempted Murder has been established;
3.The defendant is not guilty of the offence of Attempted Murder on the grounds of mental incompetence; and
4.The defendant is liable to supervision subject to a limiting term to be determined.

Criminal Law Consolidation Act 1935 (SA) ss 269A, 269B, 269C, 269D, 269F, 269O, 269Q, 269R, 269T, Pt 8A; Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (SA), referred to.
R v BS [2020] SASC 138, considered.

R v AM
[2021] SASC 64
Criminal: Trial by Judge Alone
NICHOLSON J.
Introduction

AM was charged on Information with the Attempted Murder of her son and, in the alternative, the offence of Aggravated Endangering Life. The relevant conduct is alleged to have been committed on 26 August 2018.
The prosecution case in brief is that, on 26 August 2018, AM administered to her 11 year old son, L, an overdose of the prescription drug Temazepam. She also administered to herself a prescription drug overdose and cut her wrists and neck in an apparent suicide attempt. Both were discovered by AM’s mother on the morning of 27 August 2018 in barely responsive states. There is evidence that AM was having great difficulty in coping, as a single mother, with the care of L as a consequence of her mental health problems and L’s severe behavioural difficulties. L suffers from Autism Spectrum Disorder, Asperger’s Syndrome and Attention Deficit Hyperactivity Disorder.
The evidence directed to the factual basis of…

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 AM

Details

AGLC: R v AM [2021] SASC 64
Case: [2021] SASC 64
Decision Date: 1 June 2021

CaseChat Overview and Summary

In the Supreme Court of South Australia, the defendant, AM, was charged with the attempted murder of her son, L, and, alternatively, with aggravated endangering of life. AM pleaded not guilty to both charges on the basis of mental incompetence. The prosecution conceded that AM was mentally incompetent at the time of the offence but maintained that the objective element of attempted murder had been established. AM argued that the objective element of attempted murder had not been established. Both parties agreed that the matter be determined by a judge sitting without a jury. The court was required to determine whether AM was mentally incompetent at the time of the offence and, if so, whether the objective element of attempted murder had been established.

The court found that AM was suffering from a mental impairment at the time of the offence and that she did not know her conduct was wrong. The court also found that the objective element of attempted murder had been established. Given that AM was found to be mentally incompetent, she could not be held liable for the offence of attempted murder. The court found AM liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA) for a limiting term to be determined. The court declined to make an order committing AM to detention at that stage, as she was already on home detention bail without incident. The court directed that a report under section 269T of the Act be obtained and noted that reports as required by sections 269Q and 269R of the Act would need to be prepared. The court observed that AM had consistently maintained that she did not intend to kill L and meant him no harm, but rather intended to sedate him so that he was not conscious when she took the overdose.

The court ordered that submissions be made on the issue of an appropriate limiting term during which AM is to be supervised under Part 8A of the Act and the nature of that supervision. The defendant was found not guilty of the offence of attempted murder by reason of mental incompetence. AM was declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA) for a limiting term to be determined. The court declined to make an order committing AM to detention at that stage. The court directed that a report under section 269T of the Act be obtained.

Orders

Orders of the court

The defendant was charged with the Attempted Murder of her son. She was also charged, in the alternative, with Aggravated Endangering Life. She pleaded not guilty to both charged offences by reason of mental incompetence.

The prosecution conceded that the defendant was mentally incompetent at the time of the conduct the subject of the charged offences. The defendant admitted that the objective element of the alternative offence had been established but maintained that the objective element of Attempted Murder had not. The prosecution maintained that the objective element of Attempted Murder had also been established.

The defendant elected for both issues to be determined by a Judge sitting without a jury. The Court proceeded pursuant to section 269F of the Criminal Law Consolidation Act 1935 (SA) and determined first the issue of mental incompetence. The Court considered all relevant witness statements and forensic psychiatric reports provided by the parties.

Held:

1. On the balance of probabilities, at the time of the incident the subject of the charges, the defendant was suffering from a mental impairment, namely a mental illness, and as a consequence, did not know that her conduct was wrong;

2. Beyond reasonable doubt, the objective element of Attempted Murder has been established;

3. The defendant is not guilty of the offence of Attempted Murder on the grounds of mental incompetence; and

4. The defendant is liable to supervision subject to a limiting term to be determined.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

In these circumstances, it is unnecessary to consider the alternative offence.Conclusion I record the following findings by reference to section 269F of the Criminal Law Consolidation Act 1935.(i)That AM was mentally incompetent to commit the offence of Attempted Murder at the time she administered Temazepam to L; and(ii)That the objective element of the offence of Attempted Murder has been established. As a consequence, I find AM not guilty of the offence of Attempted Murder by reason of mental incompetence. I declare AM to be liable to supervision under Part 8A of the Act for a limiting term to be determined pursuant to section 269O(2) of the Act. AM is presently on home detention bail and has been since 7 December 2018 without incident. In the circumstances I decline, at this stage, to make an order pursuant to section 269O(1)(b)(i) of the Act committing her to detention. I note that reports as required by sections 269Q and 269R will need to be prepared and that the Director will arrange for these. I direct that a report under section 269T is to be obtained. As I have noted, AM is presently in the community on home detention bail. In the first instance, I will need to hear submissions from the parties on the issue of an appropriate limiting term during which AM is to be supervised under Part 8A of the Act and as to the nature of that supervision. I add one more observation. Whilst a finding as to the nature of AM’s intention is not a relevant consideration when considering the mental incompetence offence, I do record that AM at all times has said that she did not intend to kill L and meant him no harm. Her intention was to sedate him so that he was not conscious whilst she took the overdose, expecting that L would be found and look after.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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