R v BS
[2020] SASC 138
•29 July 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BS
Criminal Trial by Judge Alone
[2020] SASC 138
Judgment of The Honourable Justice Lovell
29 July 2020
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPTED MURDER
On 27 October 2018, the defendant violently attacked his mother leading to him being charged with her attempted murder. In the alternative, he is charged with aggravated causing serious harm with intent to cause serious harm. The defendant pleaded not guilty on the grounds of mental incompetence.
Court determined to proceed first with the trial of the objective elements – intention of the defendant to play no part in trial of objective elements – finding recorded that the objective elements of attempted murder established beyond reasonable doubt – finding recorded that defendant mentally incompetent to commit the offences charged – defendant not guilty of the offence of attempted murder by reason of mental incompetence – defendant declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’)
Held, per Lovell J:
1. Finding recorded pursuant to s 269GA(2) of the CLCA that the objective elements of the offence of attempted murder are established beyond reasonable doubt.
2. The defendant suffers from a mental impairment, namely Schizophrenia, and was suffering a psychotic relapse at the time of the offending.
3. Due to his mental impairment, at the time of the offending, the defendant did not know that his conduct was wrong.
4. Pursuant to s 269GB(5) of the CLCA, the investigation into the defendant’s mental incompetence is dispensed with and the defendant is declared mentally incompetent to commit the offences charged.
5. Pursuant to s 269GB(5) of the CLCA, the defendant is not guilty of each offence and declared liable to supervision under Division 4 of Part 8A of the CLCA.
Criminal Law Consolidation Act 1935 (SA) s 11, s 23, s 269A, s 269B, s 269C, s 269D, s 269G, s 270A, referred to.
Penney v The Queen (1998) 155 ALR 605; R v Reid [2004] SASC 221; R v T (1999) 75 SASR 235; R v Willoughby (No 2) [2017] SASC 191; R v Paauwe [2018] SASC 42; R v Male [2020] SASC 98; Stapleton v The Queen (1952) 86 CLR 358, considered.
R v BS
[2020] SASC 138Criminal Trial by Judge Alone
Overview
On 27 October 2018, the accused violently attacked LD leading to him being charged with her attempted murder.[1] In the alternative, he is charged with aggravated causing serious harm with intent to cause serious harm.[2]
[1] Criminal Law Consolidation Act 1935 (SA) ss 11 and 270A.
[2] Criminal Law Consolidation Act 1935 (SA) s 23.
The accused has not disputed the facts contained within the prosecution declarations. He accepts that the objective elements of the offence of aggravated causing serious harm with intent to cause serious harm are established. The accused has put the prosecution to proof on the objective elements of attempted murder.
The accused has a significant mental health history and, in 2004, was diagnosed with Chronic Schizophrenia. Although it is a matter I must determine, the prosecution conceded that the accused was mentally incompetent to commit either of the offences charged.
The accused elected for a trial by a judge sitting alone.[3] Pursuant to s 269G of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), and with the parties’ agreement, I proceeded first with the trial of the objective elements of the offence.
[3] Criminal Law Consolidation Act 1935 (SA) s 269B.
Trial of the objective elements
A trial that proceeds on the objective elements of an offence first is governed by s 269G of the CLCA. It provides:
269G—What happens if trial judge decides to proceed first with trial of objective elements of offence
If the trial judge decides to proceed first with the trial of the objective elements of the offence, the court proceeds as follows.
A—Trial of objective elements of offence
(1) The court must first hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established against the defendant.
(2) If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt, the court must record a finding that the objective elements of the offence are established; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
(3) On the trial of the objective elements of an offence, the court is to exclude from consideration any question of whether the defendant's conduct is defensible.
The objective elements of the offence of attempted murder
The offence of attempted murder is established by ss 11 and 270A of the CLCA. The elements of the offence are:[4]
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.
[4] Penney v The Queen (1998) 155 ALR 605 at 613 [29] per Callinan J.
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.[5]
[5] R v Reid [2004] SASC 221 at 4 [11] per Besanko J; R v T (1999) 75 SASR 235 at 241-242 [34]-[38] per Doyle CJ.
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,[6] as assessment of those matters includes the state of mind of an accused.
[6] R v Willoughby (No 2) [2017] SASC 191 at 2 [9] per Hinton J.
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:[7]
… 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.
[7] [2018] SASC 42 at 3 [10].
The prosecution must prove the objective elements of the offence beyond reasonable doubt.
Evidence of the objective elements
The trial proceeded on the papers with no witnesses called. A list of affidavits the prosecution sought to rely on to establish the objective elements of the offence was tendered by consent and became Exhibit P1. Exhibit P1 lists the affidavits of the following people:
Civilian
·LD, the victim (dated 2 February 2019 and 6 July 2019)
·CD, the victim’s husband/accused’s father (dated 27 October 2018)
Medical
·Danielle Spencer (dated 7 December 2018)
·Sophie Craven (dated 30 January 2019)
·Robert Van der Berg (dated 11 July 2019)
·Paul Hollington (dated 31 July 2019 and 19 November 2019)
·Carl Lam (dated 9 July 2019)
·Ruuard Jaarsma (dated 23 July 2019)
·Nicole Dean (dated 22 July 2019)
·Hui Shi (dated 22 August 2019)
·David Summerhayes (dated 1 August 2019)
Forensics
·Adam Gates (dated 29 January 2019)
·Briony Schadegg (dated 8 November 2018)
·Gary Goodwin (dated 7 July 2019)
·Natasha Mitchell (dated 29 May 2019)
·Sharon Wilczek (dated 27 November 2018)
·Mark Grobowski (dated 23 January 2019)
SAPOL
·Stephen McKeown (dated 4 March 2019 and 30 June 2019)
·Lauren Elletson (dated 14 November 2018)
·Jesse Williams (dated 13 November 2018)
·Victor Botuch (dated 15 March 2019)
·William Russell (dated 7 December 2018)
·James Mansfield (dated 4 December 2019)
·Sarah Luestner (dated 15 December 2018)
Two reports of Dr Raeside, dated 26 September 2019 and 5 June 2020, were admitted into evidence as Exhibit D2.
I have had regard to all the affidavits listed in Exhibit P1 and make the following findings.
Circumstances of the offending
The accused is the adult son of the victim, LD and her husband, CD. He was 33 years old at the time of the offending. LD was 59 years old. The offending took place on 27 October 2018 at the home of LD and CD in Seacliff Park.
The accused’s relationship with his mother was good, however it had been complicated by the accused’s long history of mental health problems, including Schizophrenia.
At approximately 12.30 am on 27 October 2018, the accused arrived at his parent’s Seacliff Park house. LD was home alone as CD was at work. The accused said to LD that there was “something wrong with his head” and he wasn’t “thinking straight”.[8] LD told the accused to go to sleep on the couch and she went upstairs to bed.
[8] Affidavit of LD dated 2 February 2019 at [11].
CD arrived home from work at approximately 1.40 am. He went to the rear garage and was talking on the phone. After approximately 20 minutes, CD stated that the accused came out to the garage and said “hello”, before returning inside. CD later came inside and went to bed.
LD and CD woke at approximately 7.00 am on 27 October 2018. CD left for work at approximately 7.15 am, seeing the accused momentarily before he left. LD got dressed and came downstairs to make herself a coffee. She went to get a loaf of bread out of the freezer in the garage. When she entered the garage, the accused was inside sitting quietly on a couch.
As LD opened the freezer and leaned in to take out the bread, the accused grabbed her from behind and started trying to push her head down into the freezer. She managed to fight him off and turn around to face him. The accused then grabbed her around her neck and punched her numerous times to the face. The accused was telling LD that “he needs to sort me out” to which she told him to “stop it”.[9] These interactions lasted for some time during which the accused asked LD “what did you do with my mum, where’s my mum”.[10] When LD said she was his mother, the accused punched her in the face again.
[9] Affidavit of LD dated 2 February 2019 at [25].
[10] Affidavit of LD dated 2 February 2019 at [25].
At some point, the accused let go of LD; he went to get a jerry can of fuel that was kept in the garage. LD tried to escape and ran towards the house, intending to lock the door, but the accused was too quick and he restrained her before she could do so. He had the jerry can of fuel with him. They both went inside the house.
LD told the accused she needed to get changed for work so he let her go upstairs but followed her, taking the jerry can with him. She distracted the accused until CD came home. She started to look for her clothes, asked to go to the toilet and was even permitted to take a shower. The accused always remained in her vicinity and never allowed her to leave. At some point, he placed the jerry can by the bathroom door. After her shower, she put a bathrobe on and tried to have a conversation with the accused.
LD described the accused throughout the attack as behaving like he was in a trance and his eyes being empty.[11] During the attack, the words spoken by the accused were as follows:
· “He said to me that he needs to sort me out”;[12]
· “What did you do with my mum, where’s my mum”;[13]
· “At one point I think he said to me I was an alien who had his family”;[14]
·“He was asking me if his sisters are still alive” and “what have you done to my mum?”;[15]and
·“He was insisting that I was some alien body who persecutes our family”.[16]
[11] Affidavit of LD dated 2 February 2019 at [29].
[12] Affidavit of LD dated 2 February 2019 at [25].
[13] Affidavit of LD dated 2 February 2019 at [25].
[14] Affidavit of LD dated 2 February 2019 at [29].
[15] Affidavit of LD dated 2 February 2019 at [35].
[16] Affidavit of LD dated 6 July 2019 (Appendix A) at 2.
At some point, LD tried reaching for a phone but the accused noticed and knocked it from her hands.
LD sat down on her bed. At approximately 10.10 am, whilst she was sitting on the bed, the accused picked up the jerry can and threw fuel over her and into her face. LD said that she lost consciousness at that point and does not remember anything about the assault past this point.
CD arrived home from work at approximately 11.45 am. Upon entering the house, he immediately smelt fuel and noticed the blinds were down. He went to the garage and noticed the jerry can was not there. He went back inside, opened the blinds and then went upstairs. Upon arriving upstairs, CD discovered LD lying, apparently unconscious, on the ensuite floor of the master bedroom. The accused was not present.
CD immediately tried to assist LD. He observed that she was breathing and there was blood around her and on her clothing. He noticed bruises to her face and body. Her elbow was twisted out of shape. He observed a jerry can outside the ensuite and a wooden broomstick with a bloodied handle resting against a wall. He called an ambulance.
LD was gagged at some point during the attack. The gag was made from pink electrical tape with a wad of tissues that had been stuffed in her mouth. An issue arose as to whether the gag was in LD’s mouth when CD found her or whether he had removed it upon finding her. The prosecution alleged that LD was left by the accused with the gag restricting her ability to breath. Counsel for the accused said the evidence was capable of supporting the inference that the gag was removed before the accused left the premises.
Danielle Spencer, one of the two paramedics who first attended the scene, stated that when she arrived LD “had pink electrical tape around her face and neck with toilet paper stuffed in her mouth”.[17] The other paramedic, Sophie Craven, stated that the when she saw the gag, it was just below LD’s mouth.[18] This is consistent with the photographs Ms Craven took of LD prior to the paramedics touching or moving her.[19] The photographs were annexed to the affidavit of Senior Constable Lauren Elletson, a police officer on the scene.[20] The photographs show the pink electrical tape wrapped around LD’s neck and face; the tape appears to have been pulled down as it is sitting on her chin. The wad of tissues is not in LD’s mouth but rather just below it, appearing to have come out once the electrical tape was pulled down to the chin.
[17] Affidavit of Danielle Spencer dated 7 December 2018 at [8].
[18] Affidavit of Sophie Craven dated 30 January 2019 at [7].
[19] Affidavit of Lauren Elletson dated 14 November 2018 at [26].
[20] Affidavit of Lauren Elletson dated 14 November 2018.
In her affidavit, Senior Constable Elletson noted that Ms Craven had stated that LD had a gag around her face which CD had pulled down from LD’s mouth.[21] However, this statement is not consistent with the evidence given by CD.
[21] Affidavit of Lauren Elletson dated 14 November 2018 at [26].
CD stated that, when he found LD, the tape was around her neck and there were tissues underneath her chin.[22] He does not mention that he pulled the gag down from her mouth. Further, in the 000 call, CD tells the operator that LD has tape around her neck.[23] He mentions nothing of removing the gag from her mouth. The inference from his evidence is that he did not touch the gag when he arrived and it was not in LD’s mouth when he found her. In my view, CD is the best witness as to what position the gag was in when he first found LD. There was no challenge to his evidence. I find that the gag was not in LD’s mouth when CD found her.
[22] Affidavit of CD dated 27 October 2018 at [24].
[23] Affidavit of Stephen McKeown dated 30 June 2019 (Appendix A) at 5.
The accused was found by police at the Seacliff Yacht Club at approximately 1.10 pm that same day. It appeared that the accused had been swimming. He was arrested shortly after and taken to the Royal Adelaide Hospital for a mental health assessment.
Capgras Syndrome
Dr Raeside opined that it was highly likely that the accused was experiencing Delusional Misidentification Syndrome, also known as Capgras Syndrome, at the time of the offending.[24] Dr Raeside described the syndrome as “a psychiatric disorder in which a person holds a delusion that a friend, spouse, parent, or other close family member (or pet) has been replaced by an identical imposter”.[25]
[24] Report of Dr Raeside dated 5 June 2020 at 5.
[25] Report of Dr Raeside dated 5 June 2020 at 6.
Dr Raeside’s opinion was informed by what the accused told him in interviews, and LD had said in her statements, about the accused thinking LD was an alien or shape-shifting creature during the attack.
Whilst this diagnosis explains why the accused attacked his mother and the nature of the acts, I remind myself that his intention in attacking his mother is a subjective element and does not form part of my consideration as to the objective elements.
Injuries
LD had extensive and life-threatening injuries requiring her to spend close to two months in intensive care (27 October 2018 to 17 December 2018).[26]
[26] Affidavit of Robert Van der Berg dated 11 July 2019 at [5].
LD’s injuries included:
· full thickness defect on her vaginal vault. Blood was observed in her vagina and pelvis. The defect was repaired with sutures in surgery;[27]
[27] Affidavit of Dr Carl Lam dated 9 July 2019 at [6]; Affidavit of Paul Hollington dated 31 July 2019 at [5].
· defect to the anterior wall of the rectum;[28]
[28] Affidavit of Paul Hollington dated 31 July 2019 at [5].
· injury through enterotomies involving the small bowel (in two places) and the transverse colon;[29]
· several defects within the small bowel mesentery;[30]
· four defects in the left hemidiaphragm with a pericardial tear;[31]
· left lung injury;[32]
· penetrating left abdominal wall defect into rectus muscle;[33]
· right elbow dislocation with a vascular lesion (right brachial artery intima tear). The dislocation was reduced in surgery and then treated with a back slab and hinged brace. The vascular team operated to alleviate the occlusion in the brachial artery in surgery;[34]
· left proximal humerus fracture (the bone that runs from the shoulder to the elbow). This was treated with a collar and cuff. The orthopaedic surgeon noted LD was making good improvement but expected that a mild limitation to the function of the left shoulder and elbow would remain;[35]
· laceration over the inner angle of her left eye;[36]
· cut next to the left nipple, extending into the breast;[37] and
· petrochemical burns to about 7% of her total body surface of mixed depths - the left hip and lower abdomen and both breasts.[38]
[29] Affidavit of Paul Hollington dated 31 July 2019 at [5].
[30] Affidavit of Paul Hollington dated 31 July 2019 at [5].
[31] Affidavit of Paul Hollington dated 31 July 2019 at [5].
[32] Affidavit of Paul Hollington dated 31 July 2019 at [5].
[33] Affidavit of Paul Hollington dated 31 July 2019 at [5].
[34] Affidavit of Ruurd Jaarsma dated 13 July 2019 at [6].
[35] Affidavit of Ruurd Jaarsma dated 13 July 2019 at [6].
[36] Affidavit of Dr Nicola Dean dated 22 July 2019 at [6].
[37] Affidavit of Dr Nicola Dean dated 22 July 2019 at [6].
[38] Affidavit of Dr Nicola Dean dated 22 July 2019 at [6] and [9].
The internal injuries were life-threatening. They required immediate and multiple surgeries to repair.[39]
[39] Affidavit of Paul Hollington dated 31 July 2019 at [6].
Dr Paul Hollington, Head of Colorectal Surgery at Flinders Medical Centre, opined that the intra-abdominal and intra-thoracic injuries are consistent with penetration from a long instrument, such as a pole, via the vagina and/or anus. Given the site and location of the injuries, it is possible that there was more than one episode of penetration, and likely that penetration occurred both via the vagina and anus separately.[40]
[40] Affidavit of Paul Hollington dated 19 November 2019 at [6].
The act or series of acts
Given the evidence, I find the accused did the following acts:
·pushed LD’s head into the freezer;
·punched LD multiple times to and about her face;
·held onto her neck with one hand;
·threw petrol on LD, aiming at her face;
·inserted a wooden broomstick into LD’s vagina and/or anus and pushed it inside her to the height of her diaphragm;
·stabbed LD’s breast, almost slicing off her nipple;
·gagged LD by stuffing toilet paper in her mouth before wrapping electrical tape around her head multiple times; and
·left LD with life-threatening injuries without getting her any assistance.
Submissions
The prosecution contend that the objective elements of attempted murder are easily established on the facts of this case. Counsel for the prosecution, Ms Boord, submitted that the task for me is to determine whether the prosecution has proven, beyond reasonable doubt, the objective elements of attempted murder based on the acts of the accused and the injuries caused to LD. The intention of the accused in committing those acts is irrelevant when determining whether the objective elements are made out.
By conceding that the objective elements of the offence of aggravated causing serious harm with intent to cause serious harm are established, the accused has admitted the acts which caused the injuries to LD.
Counsel for the accused, Ms Johnson, submitted that whilst intent does not need to be proved by the prosecution, the Court must take into account all of the circumstances. Ms Johnson submitted that the actions of the accused to the extent they are known, the words spoken by the accused, and his state of mind to the extent there is evidence of that, are relevant. Ms Johnson contended that any evidence of the accused’s intention can inform the Court as to which is the most appropriate charge for the Court to find proven beyond reasonable doubt. In this case, she submitted that the comments made by the accused during the attack more accurately support a finding that the acts were done with an intent to cause serious harm to an “imposter” from whom he was attempting to elicit information, rather than an attempt to kill.
Further, Ms Johnson submitted that the fact the gag was not in LD’s mouth when CD found her suggests strongly that the accused removed it before he left, leaving LD’s airways unobstructed. She contended that such an act is less suggestive of an intent to kill.
Ms Johnson submitted that the injuries in this case were bizarre and it has not been established beyond reasonable doubt that they were inflicted with the objective of causing death.
The law of attempt
The accused accepted that the acts committed by the accused amounted to an “attempt” in relation to either charge.[41]
[41] For a helpful discussion of the law of attempt, see the comments of Peek J in R v Male [2020] SASC 98.
Consideration
I reject Ms Johnson’s submission that evidence of intention or state of mind of the accused can inform my decision as to what is the most appropriate charge. Evidence of intention, or state of mind of the accused, is only relevant in evaluating the probability that the defendant committed the objective elements of the offence charged.[42] That is not an issue in this case as there is no doubt that the accused inflicted the injuries.
[42] R v Willoughby (No 2) [2017] SASC 191 at 33 [198] per Hinton J.
I have already found the accused committed the acts alleged. I find beyond reasonable doubt that the accused inflicted all of the injuries on LD. In particular, I find, beyond reasonable doubt, that the accused inserted the broomstick into LD’s vagina and/or anus and pushed it to the height of her diaphragm and punctured her lung. The presence of four separate defects in the left hemidiaphragm suggests that there were up to four acts of such penetration.
On the basis of the medical evidence, I find, beyond reasonable doubt, that the internal injuries caused by the act of inserting the broomstick in such a way were life-threatening and, but for medical intervention, would have resulted in the death of LD. I am satisfied, beyond reasonable doubt, that the accused committed those acts which, if accompanied by an actual intent to kill LD, would be sufficient to sustain a conviction for the offence of attempted murder. I am, therefore, satisfied that the objective elements of the offence of attempted murder with which the accused is charged have been proved beyond reasonable doubt.
Therefore, I am satisfied that the objective elements of the offence of attempted murder have been established beyond reasonable doubt. Clearly, the objective elements of the alternative charge have been made out.
Pursuant to s 269GA(2) of the CLCA, I record a finding that the objective elements of the offence of attempted murder have been established beyond reasonable doubt.
As I have found that the objective elements of the offence of attempted murder are established beyond reasonable doubt, I will now determine the question of the accused’s mental competence.[43]
[43] Criminal Law Consolidation Act 1935 (SA) s 269GB.
Mental incompetence
A person is presumed to be mentally competent to commit an offence unless the person is found, on an investigation under Part 8A, Division 2 of the CLCA, to have been mentally incompetent to commit the offence.[44] The accused raised a defence of mental incompetence and, based on the opinion of Dr Raeside, the prosecution conceded that he was mentally incompetent to commit either of the offences. Section 269GB(5) of the CLCA provides that:
(5) The court may, if the prosecution and the defence agree—
(a) dispense with, or terminate, an investigation into a defendant's mental competence to commit an offence; and
(b) declare that the defendant was mentally incompetent to commit the offence, find the defendant not guilty of the offence, and (subject to Division 3A) declare the defendant to be liable to supervision under Division 4 Subdivision 2.
[44] Criminal Law Consolidation Act 1935 (SA) s 269D.
The power contained in s 269GB(5) is discretionary and it is for the Court to satisfy itself that it is appropriate to act on the agreement of the parties as to the accused’s mental incompetence.
A person can be deemed mentally incompetent to commit an offence if they satisfy the requirements in s 269C of the CLCA. Section 269C states:
(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.
I have considered the two reports of Dr Raeside.[45]
[45] Exhibit D2.
Mental impairment
There is no doubt that the accused has an extensive and well-documented history of Schizophrenia. Dr Raeside opined that he was suffering a psychotic relapse at the time of the offending.[46]
[46] Report of Dr Raeside dated 26 September 2019 at 27.
Dr Raeside has examined the accused previously, in 2003 and 2007, for the purpose of providing forensic reports. It is clear from Dr Raeside’s report that the accused has suffered from paranoid delusions since he was 17 years old. Persecutory delusions are a common thread throughout the accused’s mental health history and there is a pattern of him becoming aggressive and violent when unwell and not complying with his medication.
The accused would self-medicate at times with both alcohol and drugs, which exacerbated his condition. A toxicology summary on urine obtained from the accused after the offending showed no illicit drugs in his system.
At the time of the offending, the accused had just returned from Darwin. When asked about the day of the offending, the accused responded:
Things were going from bad to worse; I’m not sure, just unwell. I had just come back from Darwin, got in a few fights on the train and didn’t sleep properly, unmedicated, unwell.
When asked how he could explain what he had done to his mother, the accused responded, “I can’t think of any reason why I would do it”.[47]
[47] Report of Dr Raeside dated 26 September 2019 at 18.
As mentioned earlier, in his report dated 5 June 2020, Dr Raeside opined that it is highly likely that the accused was experiencing Delusional Misidentification Syndrome, also known as Capgras Syndrome, at the time of the offending.[48] This diagnosis explains the accused’s delusions that his mother had been overtaken by aliens and provides some explanation for his behaviour in attacking LD.
[48] Report of Dr Raeside dated 5 June 2020 at 5.
In his report, Dr Raeside refers to a comprehensive psychiatric assessment done by Dr Chesterman in the emergency department of the Royal Adelaide Hospital. The assessment took place on 27 November 2018, a month after the offending, and was done for the purpose of determining if the accused was fit for custody. Dr Chesterman noted that “with persistent gentle questioning, delusional paranoid content emerged… which was associated with marked thought disorder, derailment, trailing off into incomprehensible muttering”.[49] Dr Chesterman found that the accused’s presentation was “consistent with an exacerbation of Paranoid Schizophrenia” and he required “urgent inpatient psychiatric care and stabilisation of his mental state and was deemed ‘unfit for custody’”.[50]
[49] Report of Dr Raeside dated 26 September 2019 at 25.
[50] Report of Dr Raeside dated 26 September 2019 at 25.
Dr Raeside added that Dr Chesterman’s assessment of the accused a month after the offending was consistent with the accused’s presentation upon arrival at James Nash House and his continued presentation whilst there. Dr Raeside stated:
… he presented as psychotic upon arrival at James Nash House with persistent psychotic symptoms throughout, perhaps more recently with some reduction in positive symptoms, but certainly persistent negative symptoms.
Further, in his report dated 5 June 2020, Dr Raeside noted that even after the assault, the accused “remained convinced his mother was a shape-shifter” and he explained that it wasn’t until a few weeks later in hospital that he started to doubt what he had thought at the time.[51]
[51] Report of Dr Raeside dated 5 June 2020 at 4.
These assessments, made some time after the offending, demonstrate that the accused was clearly still labouring under the effects of his Paranoid Schizophrenia long after the offending. Further, it demonstrates that the psychosis was not drug‑induced as one would expect the symptoms to have subsided once the drugs had left his system.
Mental competence
Dr Raeside opined that the accused was suffering a psychotic relapse at the time of the offending, secondary to non-compliance with medication.[52] LD’s evidence is consistent with such a diagnosis. She reported disturbances in the accused’s mental state during the attack, namely that he was acutely paranoid, believed she was an alien, and wanted to know what had happened with his mother and sisters.
[52] Report of Dr Raeside dated 26 September 2019 at 27.
Dr Raeside stated that:
It is unclear whether [the accused] knew the nature and quality of his alleged actions as there is simply insufficient information to judge this. However, I believe on the balance of probabilities that the severity of his psychosis would have rendered him unable to reason about the wrongfulness of his actions, particularly if motivated by persecutory and paranoid delusional beliefs. There is no indication that he would have been totally unable to control his conduct. However, I would note that the severity of the injuries sustained by his mother clearly suggest marked anger. I could find no other indication as to why he would have been so angry, other than the delusional belief that his mother had somehow been taken by alien forces. I cannot provide any adequate explanation as to the sexual component of the attack.
Therefore, I would support a mental incompetence defence in this matter.
(Emphasis added)
Dr Raeside considered the accused mentally incompetent at the time of the offending. Given the information in Dr Raeside’s reports and, in particular, the likely diagnosis of Capgras Syndrome, it can be inferred that the accused, whilst in a psychotic state, believed his actions were an “inexorable obligation or inescapable necessity”[53] in the circumstances where his mother had been taken over by alien forces. That is, his psychotic delusions impacted him so severely that he believed he had no choice and others in his position would do the same. Consequently, the accused did not know the wrongfulness of his actions.
[53] Stapleton v The Queen (1952) 86 CLR 358 at 375 per Dixon CJ, Webb and Kitto JJ.
No reason arises to reject the reports of Dr Raeside and I accept them and the opinions expressed within them.
I am satisfied that the accused suffers from Schizophrenia and has done so his entire adult life. I am satisfied that, at the time of the offending, the accused was suffering a psychotic relapse and experiencing persecutory delusions that his mother had been taken over by alien forces.
I am satisfied that at the time the accused attacked LD, he did not know that his conduct was wrong in that, due to his psychotic state, he believed he had no choice and others in his position would do the same.
Under s 269GB(5) of the CLCA, I dispense with any further investigation into the accused’s mental competence to commit the offence of attempted murder. I am satisfied that it is appropriate to record a finding that the accused was mentally incompetent to commit the offence of attempted murder. I therefore declare that the accused was mentally incompetent to commit the offence and find him not guilty of attempted murder. I declare that he be liable to supervision under Part 8A of the CLCA.
Orders
I find the accused not guilty of the attempted murder of LD by reason of his mental incompetence and declare him liable to supervision under Part 8A of the CLCA.
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