R v BS - [2020] SASC 138

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 138
Criminal 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…

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 BS

Details

AGLC: R v BS [2020] SASC 138
Case: [2020] SASC 138
Decision Date: 29 July 2020

CaseChat Overview and Summary

In the case of R v BS, the defendant, BS, faced charges related to an attempted murder of his mother, LD. The incident occurred at the home of LD and her husband, CD, in Seacliff Park. BS, who had a history of mental health issues, including schizophrenia, was found to have inflicted severe injuries on LD using a broomstick, which led to life-threatening conditions. The prosecution relied on affidavits and medical reports to establish the elements of the offence. BS accepted that his actions constituted an attempt but contested the severity of the charge, arguing for a lesser charge of attempted grievous bodily harm (GBH).

The court had to determine whether the prosecution had established the objective elements of the offence of attempted murder and whether BS was mentally competent to commit the offence. The court found that the objective elements of the offence of attempted murder were indeed established beyond reasonable doubt. The court rejected the argument that evidence of BS's intention or mental state could influence the decision on the appropriate charge. Given that BS's mental incompetence was conceded by the prosecution based on the opinion of Dr Raeside, the court found BS not guilty of attempted murder but declared him liable to supervision under the Criminal Law Consolidation Act.

The court's reasoning hinged on the clear establishment of the objective elements of the offence and the agreed mental incompetence of the defendant. The final orders included a finding that BS was not guilty of attempted murder due to mental incompetence, but he was declared liable to supervision under the relevant provisions of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.