R v Burfield (No 2) - [2005] SASC 439

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BURFIELD (No 2)
Judgment of The Honourable Justice Gray
29 November 2005
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Accused pleaded not guilty to attempted murder and wounding with intent to cause grievous bodily harm - Court satisfied on balance of probabilities that at time of alleged offences accused was mentally incompetent to commit the offences - Court satisfied beyond reasonable doubt that objective elements of offence of attempted murder had been established beyond reasonable doubt - No need to consider alternative charge of wounding with intent.
Criminal Law Consolidation Act 1935 (SA) s 269FB, s269O, S 269Q, s 269R, referred to.
R v Burfield [2005] SASC 438, considered.

R v BURFIELD (No 2)
[2005] SASC 439
Criminal
GRAY J:

In R v Burfield,[1] I concluded that it had been established on the balance of probabilities that the accused was, at the time of the charged offences of attempted murder and wounding with intent to do grievous bodily harm, mentally incompetent to commit those offences. I recorded a finding to that effect.
[1] R v Burfield [2005] SASC 438
On 15 September 2005, I proceeded to hear evidence and representations in accordance with section 269FB(1) of the Criminal Law Consolidation Act 1935 (SA) as to whether the objective elements of the charged offences had been established. Section 269FB(1) provides:
If the court records a finding that the defendant was mentally incompetent to commit the offence, the court must 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.
I reached the conclusion that I was satisfied that the objective elements of the offence had been established beyond reasonable doubt. I recorded my finding in respect of the charge of attempted murder. That having been done the Crown accepted that there was no need to proceed and consider the alternative charge of wounding with intent. At the time of recording my findings, I indicated that I would give reasons. I now do so.
An attempt to commit a crime is itself a crime. The offence consists of an intention to commit the crime together with an act or series of acts by an accused able to carry out that intention. In respect to the charge of attempted murder, the prosecution must first prove that the accused intended to kill Rae Carmel Burfield. This is the subjective element of the offence; it is not an objective element.[2]
[2] objective element of an offence means an element of an offence that is not a subjective element;
Secondly, there must be an act or acts done by an accused in carrying out that intention. The act or acts must be immediately and not remotely connected with committing the crime. The act or acts cannot reasonably be regarded as having any purpose other than to commit the crime. The act or acts on which the prosecution rely must be deliberate and not accidental. It must also be established that the accused acted unlawfully and without lawful excuse.
I received into evidence declarations tendered by the Crown and two lengthy interviews of the accused. I also received the psychiatric reports referred to in Burfield. That material establishes to my satisfaction the following facts.
The accused lived with his mother, Rae Carmel Burfield, in Auburn, South Australia. On Thursday 9 September 2004, the accused received social security payments and travelled to Adelaide with his brother, Ian Burfield.
When the two returned to their mother’s home, the accused began saying “horrible things” to his mother. Ms Burfield left the house. She returned some time during the early hours of the morning of Friday 10 September 2004. Upon returning to the house, Ms Burfield went to the toilet inside the house. As she exited the toilet, she saw the accused in the door way with a kitchen knife in his hand. The accused began stabbing his mother in the left shoulder and chest area about eight times. The accused told Ms Burfield “I can’t stand the sound of the knife coming out of you” and ceased stabbing her.
Ms Burfield retreated back to the toilet, shut the door and spoke to the accused in an attempt to deter him from attacking her. The accused forced the toilet door open. He then punched Ms Burfield in the mouth with his fist. She fell to the floor. The accused began kicking his mother, saying, “I’m going to kill you, you fucking cunt. Why did you do those thing when I was young. You made me into a girl and you made me play footy.” The accused then jumped on top of Ms Burfield and began stamping on her hands and head. He then hit her with a broom handle and later with a metal tennis racquet.
Around this time, Ian Burfield entered the house. The accused told his brother what he had done. He said “Look at her, she should be dead, the amount of bashings I’ve given her”.
Ms Burfield was eventually able to escape from the house. She hid in bushes at the back of the house until sunrise on the morning of 10 September 2004. She was later discovered by Ian Burfield and police. She was treated by an ambulance on site and then taken to Clare Hospital.
Ms Burfield provided a statement to the police on 23 March 2005 in which she said that syringes found at her home during the police investigation of the incident were likely to belong to the accused, who was an amphetamine user, and not to her other son.
Trevor McEvoy has known the accused for approximately 12 to 13 years. The accused’s father is Mr McEvoy’s cousin. He is divorced from Rae Burfield. Mr McEvoy knew the family on a social basis. He described the accused as “highly strung” and stated that his mental stability was declining rapidly and he was becoming more violent.
Mr McEvoy was awoken at about 5am on Friday 10 September 2004 by a knock at his front door. It was the accused holding a tennis racquet. He appeared agitated and asked if his mother was at the house. Mr Evoy told him she was not. The accused told Mr McEvoy that he was looking for his mother to “finish her off”. He then said he had stabbed his mother many times and hit her with a broom handle and broken her arm and she had then run away. The accused wanted to come into the house, but Mr McEvoy refused. He kept asking about his mother. He asked Mr McEvoy not to call the police. Mr McEvoy stated that the accused told him he wanted to kill his mother to get the money. The accused told Mr McEvoy that his mother had made him play football and had turned him into a poofter. The accused said that when he had finished killing him mum he would only get 5-10 years in jail and that if he helped the police he would be out early. The accused stayed outside Mr McEvoy’s house for about 20 minutes and then walked off. As soon as he had left, Mr McEvoy rang the police.
Senior Constable Hill was off duty on 10 September 2004 when he received a phone call from Mr McEvoy. Mr McEvoy advised that he had just had a visit from the accused who was holding a tennis racquet and looking for his mother. Constable Hill then recalled himself to duty and attended Clare Police Station at about 5.40am where he advised the officer on duty of the complaint. At about 7am, Constable Hill and Sergeant Harris attended at the accused’s mother’s address. The accused and his brother met them at the door. The accused said “I thought you’d come looking for me. I can’t believe she survived.” The following conversation then took place:
Hill           What happened?
Accused    I stabbed the fuck out of her. She walked away.
Hill           Where is she now?
Accused    I have no idea
HillAt this stage you will be detained on suspicion of committing a serious offence. Do you understand.
Accused    Yes.
The accused was then handcuffed and placed in a police vehicle. A search for the accused’s mother ensued. The accused’s mother was located in bushes outside of the house. She was terrified and complaining of pain and cold. Police observed stab wounds in her upper left arm and called for an ambulance.
At about 8.25am, crime scene examiner Senior Constable Mylchreest arrived at the scene. Constable Hill then had a conversation with the accused which was recorded on video. The accused was then placed in cells at Clare Police Station and charged with attempted murder and unlawful wounding.
Constable Mylchreest conducted an investigation at the scene. A number of items were seized from the scene including a “Wiltshire” knife with a single serrated blade length of 120mm. There appeared to be blood on the blade. Constable Mylchreest also noted that the tyres on the vehicle parked outside the house had been let down. Smears of blood were also found on the exterior surface of the rear door of the house and on a large wooden broom head on the passageway floor. A large amount of blood was located on the carpet in the passageway. Blood splatters were also located on the wall. Samples of the blood were taken. A large pool of blood was located on the tiled floor of the toilet. A metal tennis racquet was also located and seized. A number of syringes and a “bong” constructed from a soft, plastic drink bottle and a brass pipe were found the bedrooms.
Photographs of all items collected were taken.
On 10 September 2004 Claire Wendy Rowe was employed as a General Practitioner Registrar at Clare Medical Centre. At about 9.15am she responded to a request from Clare Hospital to attend to a stab victim. The victim was identified as Ms Burfield. Ms Burfield arrived at the hospital on a stretcher and appeared “bedraggled and shocked”. She was hypothermic as a result of spending the night outdoors in low temperatures. Ms Burfield told Dr Rowe that she had been stabbed, hit with a broomstick, kicked and stamped on and that she had spent the night hiding outside in bushes.
Dr Rowe observed Ms Burfield to have bruising to the head, swollen lips and hands and 12 stab wounds, mainly to her left arm and left chest area. She also suffered from a three to four centimetre laceration to her head and a stab wound 1.5 centimetres in length to her abdomen. X-rays and a CT scan excluded the possibility that she had suffered any internal injuries. However, Ms Burfield suffered a large haematoma to the back of her skull and required a blood transfusion as a result of the stab wounds.
Constable Hill interviewed the accused at around 9am Friday 10 September 2004. Constable Hill relayed the conversation the he had had with the accused at the scene. The accused was given his rights and reminded that he was under suspicion for attempted murder. The accused told Constable Hill that he needed a cigarette and that he had not slept for three to four days.
Detective Geoffrey Cardwell subsequently interviewed the accused later in the morning on 10 September 2004. The accused admitted to stabbing and bashing his mother. During this interview, the accused complained of feeling very stressed. He said that he had not slept for days and that he had not taken any amphetamines. The accused told Detective Cardwell that he was “mentally stressed”. Later in the interview, the accused said:
Oh I’m definitely psychotic, I’m in and out of reality, I’m not sure if certain things happen or not. I have claimed responsibility for things I have dobbed myself in for,
The accused asked Detective Cardwell whether his mother was still alive. When he was told that she was he replied:
Because I shit you not … and I will tell you without being asked the question. I did enough to her, to kill her, I left her there thinking she would bleed to death.
The accused appeared to be surprised that the police officers were “not terrified of me”, telling them that he was a “very dangerous man”.
The accused described stabbing his mother to Detective Cadwell. He expressed surprise that she had survived the attack. He described the sound of the stabbing. The accused told Detective Cadwell that he believed his mother to be a criminal, alleging that she had acted violently and abusively towards him as a teenager.
The accused recounted the circumstances of his offending to Detective Cadwell in similar terms to the account provided to the psychiatrists and consistent with the account given by his mother. He described stabbing his mother as “pokes”. When asked what he intended to do when he was stabbing and hitting his mother, the accused said “I wanted to fuck her up like I had not fucked her up before”.
The accused told Detective Cadwell that he had obtained methylamphetamine on the Monday prior to the offending. He explained that on the night of the offending he thought his mother was planning to “sneako” him or “have a shot” at him.
This evidence established the objective elements of the crime of attempted murder. On 15 September 2005 I reached the conclusion that the objective elements of the crime of attempted murder had been proven beyond reasonable doubt. In accordance with section 269FB I found the accused not guilty of the offence of attempted murder on the ground of mental incompetence.
The psychiatric evidence about the defendant’s present medical state included the following:
Dr Raeside:
Mr Burfield appears to have shown only modest improvement over various months of treatment in James Nash House despite large doses of antipsychotic medication. Whilst he appears to be generally more settled behaviourally he continues to display fixed delusional ideas, ongoing paranoia, and a willingness to act aggressively if needed. This combination renders him at high risk of dangerous behaviour in the future and he requires close supervision in a closed psychiatric environment.
Dr Tomasic:
[Mr Burfield] has improved with inpatient management and antipsychotic management, however he remains agitated and psychotic, with ongoing homicidal thoughts and lack of insight. He continues to pose a high risk of aggression and requires ongoing secure inpatient management.
Having regard to the medical evidence discussed in Burfield and in particular to the opinions of Drs Raeside, Tomasic and Czechowicz as to the defendant’s present mental state, I declared that the defendant was liable to supervision under Part 8A of the Criminal Law Consolidation Act.
Section 269O of the Criminal Law Consolidation Act provides:
(1)The court by which a defendant is declared to be liable to supervision under this Part may—
(a) release the defendant unconditionally; or
(b) make an order (a supervision order)—
(i)committing the defendant to detention under this Part; or
(ii)releasing the defendant on licence on conditions decided by the court and specified in the licence.
(2)If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established.
(3)At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
I made a supervision order pursuant to section 269O(1)(b) committing the defendant to detention under Part 8A.
Having made these declarations and orders on 15 September 2005, I adjourned the fixing of a limiting term pursuant to section 269O(2) for further consideration. Before I am able to fix that limiting term, the appropriate Minister will need to make arrangements for the provision of a report pursuant to section 269Q. That section provides:
(1)If a defendant is declared to be liable to supervision under this Part, the Minister must, within 30 days after the date of the declaration, prepare and submit to the court by which the declaration was made a report, prepared by a psychiatrist or other appropriate expert, on the mental condition of the defendant containing—
(a) a diagnosis and prognosis of the condition; and
(b) a suggested treatment plan for managing the defendant’s condition.
It will also be necessary for the Crown to prepare a report pursuant to section 269R. That section provides:
(1)For the purpose of assisting the court to determine proceedings under this Division, the Crown must provide the court with a report setting out, so far as reasonably ascertainable, the views of—
(a)     the next of kin of the defendant; and
(b)     the victim (if any) of the defendant's conduct; and
(c)     if a victim was killed as a result of the defendant's conduct—the next of kin of the victim.
The proceedings are adjourned to 29 November 2005 at 9.30am.

subjective element of an offence means voluntariness, intention, knowledge or some other mental state that is an element of the offence;