R v AM
[2021] SASC 64
•1 June 2021
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 64Criminal: 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 the charges, that is, the overall circumstances and AM’s actions has not been challenged. However, AM pleaded not guilty to both charges by reason of mental incompetence and submitted that the evidence only supports a finding that the objective element of the lesser charge had been established and not that for Attempted Murder.
Through her counsel, AM elected to have both the issue of mental competence and the issue of whether or not the objective element for the offence of Attempted Murder had been established by the prosecution to be determined by a Judge sitting without a jury.[1]
[1] Section 269B of the Criminal Law Consolidation Act 1935 (SA).
On 7 May 2021, I received the evidence relied on by the prosecution and heard from counsel for the Director of Public Prosecutions and counsel for AM on both issues. It was their joint submission that mental incompetence had been established. Nevertheless, I wished to further review the evidence and I reserved my decision.
The legislative scheme dealing with mental competence to commit an offence
Part 8A of the Criminal Law Consolidation Act 1935 (SA) (the Act) provides for a scheme for the detention or release on licence of defendants who suffer from mental impairment such that, as a consequence, they are to be acquitted of a criminal offence. Part 8A has been recently amended[2] in a number of substantive and procedural respects which amendments commenced operation on various dates during and after September 2017.
[2] Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (No 19 of 2017).
Section 269C was substantively amended and now provides as follows.
269C – Mental competence
(1)A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; that is, the person could not reason about whether the conduct, as perceived by reasonable people, is wrong; or
Note—
Paragraph (b) adopts the test as stated and excludes from consideration whether the defendant could reason with a moderate degree of sense and composure as set out in R v Porter (1936) 55 CLR 182.
(c) is totally unable to control the conduct.
(2)If, on an investigation under this Division, a person is found to be mentally incompetent to commit an offence and the trial judge is satisfied, on the balance of probabilities, that the mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self induced intoxication (whether the intoxication occurred at the time of the relevant conduct or at any other time before the relevant conduct), the person may not be dealt with under this Part but may (if appropriate) be dealt with under Part 8.
(3)However, despite the fact that the judge is satisfied that the person's mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self induced intoxication, the judge may nevertheless make an order that the person be dealt with under this Part after taking into account—
(a) the time and circumstances of when and how the intoxication caused the mental impairment; and
(b) the interests of justice; and
(c) whether the making of such an order would affect public confidence in the administration of justice.
The definition of “mental impairment” as provided for in subsection 269A(1) is now in these terms:
Mental impairment includes –
(a) a mental illness; or
(b)an intellectual disability; or
(c)a disability or impairment of the mind resulting from senility.
In order to satisfy the requirement in paragraph (b) of subsection 269C(1), it is no longer sufficient to reach a finding that the person in question at the time of the alleged conduct in question, by reason of a mental impairment as defined, could not reason with a moderate degree of sense and composure that the conduct in question was wrong having regard to the everyday standards of reasonable people.[3] Paragraph (b) and the drafting “Note” make it clear that this aspect of the test is as stated in that paragraph.
[3] The King v Porter [1933] HCA 1; (1933) 55 CLR 182. The amendment to Part 8A in this respect has effected a substantive change.
At the hearing on 7 May 2021, I proceeded pursuant to section 269F of the Act to hear from the parties on the question of AM’s mental competence first before proceeding to hear from the parties as to whether or not the requisite objective element had been established. Following the reservation of my decisions, I considered and came to a final conclusion as to mental competence first before considering and coming to a final conclusion on the question of the objective element.
Mental competence
As earlier indicated, counsel for the Director of Public Prosecutions conceded that AM was mentally incompetent at the time of the conduct the subject of the charged offences and both parties agreed that an investigation into her mental competence to commit either offence could be dispensed with pursuant to paragraph (a) of subsection 269FA(5) of the Act. Nevertheless, I have now reviewed the evidence bearing on this issue. In addition to lay person and police witness statements, the materials before the Court included reports from three experienced forensic psychiatrists; one by AM’s current treating psychiatrist, Dr Harry Hustig, dated 29 March 2020, one by Dr Chris Branson, dated 8 October 2020 and one by Dr Narain Nambiar, dated 18 January 2021.
The three reports provide comprehensive investigations into and analyses of AM’s mental state as at the time of the conduct in question. Each psychiatrist expressed the opinion that AM suffered from a Major Depressive Disorder and episode at the time she engaged in the conduct in question. Major Depressive Disorder is a recognised mental illness falling within the definition of mental impairment as provided for in subsection 269A(1) and, as such, satisfies the requirement in the chapeau to section 269C that AM was, at the time, “suffering from a mental impairment”.
I do not stay to summarise the factual bases relied upon by each of the psychiatrists in support of their analyses and ultimate opinions. I am satisfied that their ultimate opinions are soundly based in the evidence that was before them.
Dr Hustig concluded as follows.
In my opinion she suffers from a bipolar affective disorder and adult ADHD and at the time of the offence was experiencing an episode of major depression with a loss of reality testing.
. . . .
I believe her conduct was driven by her depression and she did not engage in the reasoning over whether her actions were right or wrong but her actions were largely driven by her despair and sense of hopelessness. In my opinion in relation to the nature of her mental impairment she was totally unable to control her conduct at the time of committing the offence.
Dr Branson concluded as follows.
[AM] suffers from Borderline Personality Disorder, Bipolar Affective Disorder, and Attention Deficit Hyperactivity Disorder. Importantly, at the time of the alleged offences she was suffering from a major depressive disorder of significant severity to the extent that she was overwhelmed in coping with the requirements of daily life, particularly looking after her autistic son. This episode of illness has been present and gradually worsening for probably 12 months prior to the alleged offence.
. . . .
At the time of the offences, [AM] was suffering from a very significant mental illness, namely Major Depressive Disorder. This amounts to a mental impairment in terms of section 269C of the Criminal Law Consolidation Act.
. . . .
I do not believe that [AM] was able to reason about the wrongfulness of her conduct, as perceived by reasonable people, due to the severity and overwhelming nature of her major depressive illness, and the significant helplessness that she felt in attempting to cope with her autistic son.”
Dr Nambiar concluded as follows.
At the material time of the offence, it is my opinion that [AM] was experiencing Major Depression. Her Depression was due to an accumulation of stress. Her depression gave rise to irrational thinking. It has more recently been established that [AM] has experienced hypomanic episodes in her past which places the diagnosis of major depression now in the context of a broader definition of Bipolar II Disorder. Major Depression is a mental illness.
. . . .
Her ability to think clearly about simple matters, for example what to feed her son, became difficult for her and it would seem to me that, at the material time when she made the decision to end her own life and provide an overdose to her son, occurred in the cognitive distortion consistent with major depression. Her diminished ability to think and concentrate, excessive and inappropriate guilt, feeling of worthlessness, recurrent suicidal thoughts, are all consistent with the cognitive distortions that occur during an episode of major depression. On that basis, it is my opinion that [AM] did not know that the conduct was wrong; that is, she was unable to reason about the wrongfulness of her conduct, as perceived by reasonable people.
I note that Dr Hustig would support the defence in accordance with paragraph (c) of subsection 269C(1) whereas Drs Branson and Nambiar would rely on paragraph (b).
Section 269D of the Act provides for a presumption of mental competence. A person’s mental competence to commit an offence is to be presumed unless, following an investigation in accordance with the requirements of the Act, the person is found to have been mentally incompetent to commit the offence. The onus of demonstrating mental incompetence falls on the person claiming the defence and is to be satisfied on a balance of probabilities.
Having reviewed the evidentiary materials gathered by the Director of Public Prosecutions including the three expert psychiatric reports just referred to, I am satisfied on the balance of probabilities that, at the time of the incident the subject of the charges, AM was suffering from a mental impairment, namely a mental illness within subsection 269A(1), and that as a consequence, she either did not know that her conduct was wrong within the criterion in subsection 269C(1)(b) or was totally unable to control her conduct within the criterion in subsection 269C(1)(c) or both. For these reasons, I am satisfied that the Director’s concession was properly made and that at the time of her unlawful conduct AM was mentally incompetent to commit either of the offences charged.
Objective element of the offence of Attempted Murder
Having made the finding as to mental incompetence in accordance with the procedure provided for in subsection 269FA, I then must determine in accordance with the procedure set out in subsection 269FB, and in the first instance, whether or not the objective element of the offence of Attempted Murder had been established. The onus rests with the prosecution to establish the objective element and to do so beyond reasonable doubt.
In R v BS,[4] Lovell J was called on to identify the objective element or elements of Attempted Murder. I set out his Honour’s reasoning in full, with which I respectfully agree.
[4] [2020] SASC 138 at [6]-[9] (emphasis in original).
The offence of attempted murder is established by ss 11 and 270A of the CLCA. The elements of the offence are:
1the accused intended to kill the victim;
2the accused attempted to execute that intention to kill in the sense that the accused did an act or a series of acts which were immediately directed towards fulfilling that intention; and
3the act or series of acts were done without lawful excuse.
Section 269A(1) of the CLCA defines an objective element of an offence as an element of an offence that is not a subjective element. A subjective element of an offence is defined in the same section as meaning voluntariness, intention, knowledge or some other mental state that is an element of the offence. Having regard to these definitions, the intention to kill (element 1) is a subjective element and I am to exclude this element from my consideration.
Further, whether the act or series of acts were done without lawful excuse (element 3), that is, where there is a justification or excuse such as self-defence, provocation and duress that would otherwise relieve a person of a guilty verdict, does not form part of my investigation into the objective elements, as assessment of those matters includes the state of mind of an accused.
The objective element of attempted murder is to be found in the second element. The second element, however, contains two premises. First, that there is an act or a series of acts (physical acts) and secondly, that act or acts are directed towards the fulfilling of the subjective intention, namely an intent to kill. However, I am not to have regard to any subjective intention. As Hinton J stated in R v Paauwe:
… the objective elements of the offence of attempted murder are contained in the second of the elements as stated above, namely, the commission of an act or a series of acts which were immediately directed towards fulfilling the first element. An act or a series of acts which are immediately directed towards fulfilling the first element are those that are more than mere preparation to commit the offence and are sufficiently proximate to the completion of the offence such that it may be said that the accused has actually embarked on the commission of the offence.
[Footnotes omitted]
It follows that I must be satisfied that AM committed an act or acts which were more than mere preparation towards killing L and sufficiently proximate to the completion thereof, that is, the death of L, such that it may be said that AM had actually embarked on the commission of the offence of murder. In undertaking this enquiry any question of intention is to be ignored. In other words, the second element is to read, for this purpose, “… the accused did an act or a series of acts which [had the accused held the requisite intention] would qualify as being immediately directed towards fulfilling that [requisite] intention”.
At the hearing on 7 May 2021, counsel for the Director identified the witness statements that the Director relied upon as relevant to the question of whether it had been established beyond reasonable doubt that AM committed the objective element for the offence of Attempted Murder. Those witness statements were as follows:
·Julie Fisher dated 16 October 2018;
·Margaret Jane Maynard dated 27 August 2018;
·Julie-Anne Jacobs dated 30 January 2019;
·Heath Michael Polyak dated 11 October 2018 and 7 March 2019;
·Erin Lee Traeger dated 24 October 2018 and 21 February 2019;
·Paul Strachan dated 29 April 2019;
·Kerryn Evelyn Mason dated 8 November 2018;
·Dr Jane Edwards dated 15 January 2019;
·Professor Jason White dated 23 July 2019 and 18 December 2019;
·Kerry Bates dated 8 May 2019; and
·Dr Richard Wilhelm Daehn dated 28 November 2019.
There is nothing in the prosecution witness statements to cast doubt on AM’s admission that she deliberately administered the prescription medication found in L’s system and much that is consistent with or supportive of that.
AM admitted to a nurse that she gave L about 20 tablets containing Temazepam. She admitted to a police officer that she administered 30 such tablets and told another doctor that it was about 20 such tablets. The empty packaging in close proximity to AM and L indicated that 10 mg tablets had been available. This is not disputed. The administration of something between 20 and 30 10 mg tablets is consistent with Professor White’s toxicology results. It suggests that L was given approximately 200-300 mg whereas the usual adult dose is 5-20 mg. There is no prescribed dosage for children.
Professor White calculated that the concentration of Temazepam, at its peak, in L’s system was 15.6 mg per litre of blood; a very high concentration. Professor White also expressed the opinion that while deaths from Temazepam overdose were rare they are possible. This level of concentration has been found in a small number of adult fatalities.
In his addendum report of 18 December 2019, Professor White expressed the following opinions.
The concentration of temazepam in blood was 2.8 mg/L. In the original report it was assumed that the blood concentration of temazepam increased over the first two hours after consumption before reaching a peak and then declining gradually. The time between consumption and blood sample collection was estimated at 20 hours. If the time between consumption and blood sample collection was 24.3 hours (based on dosing at midday on the 25th August 2018 and blood collection at 12.22pm on the 26th August 2018) and the same assumptions are made concerning the rate of decline, then the peak concentration that would have occurred at about 2pm on the 26th August 2018 would have been approximately 15.6 mg/L. As noted in the original report, such an estimate should be considered very approximate only.
This estimate is a very high concentration and is in the range found in the small number of fatalities for which temazepam concentration has been reported. In three cases of temazepam only being present in post-mortem blood, the concentrations ranged from 3.8 to 10 mg/L2. However, such comparisons are difficult as changes can occur in drug concentration after death and in two of these cases the people were elderly with potentially comprised health.
Whether or not fatality occurs at such high concentrations is determined by a number of factors, most of which are unknown. These included the speed of absorption of the drug, how rapidly it is metabolised, the person’s tolerance for the effects of the drug and the position of the person’s body (as any blocking of the airways will increase the risk of fatality). The general health of the individual also plays an important role. In the case of [L], he is presumed to have been otherwise healthy but with little or no tolerance to the effects of temazepam. In addition, drug interactions would also have played a role in determining the likelihood of fatality from the temazepam overdose. In particular, while some of the drugs present in the blood may have increased the risk of fatality, the dexamphetamine may have played a protective role in preventing fatality.
On my review of the evidence, I am satisfied that the objective element for Attempted Murder has been established. I am satisfied beyond reasonable doubt that the overdose of Temazepam was deliberately administered by AM to L and was potentially fatal. AM engaged in an act immediately directed towards killing L and which was more than mere preparation to commit the offence of Murder and sufficiently proximate to the completion of such an offence.
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.
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