R v Butler No. Sccrm-02-121

[2002] SASC 5
R v BUTLER
Criminal (Ex Tempore)

LANDER J. The accused has been arraigned on a charge that, on 12 September 2002 at Karte, he murdered David Gerard. He has pleaded not guilty to that charge.
The accused has raised a defence of mental incompetence to commit the offence and as a result the question of the accused’s mental incompetence must be separated from the remainder of the trial: s 269E of the Criminal Law (Consolidation) Act 1935 (SA) (the Act).
In this case there is no question of the accused’s fitness to stand trial: s 269H.
As a consequence of the accused raising that issue, I have been asked to carry out an investigation into the accused’s mental competence to commit the offence pursuant to s 269B(1) of the Act.
The accused has elected, by his counsel, to have the matter dealt with by a judge sitting alone and that is his right: s 269B(1).
I had a discretion to proceed first with the trial of the objective elements of the offence or with the trial of the mental competence of the accused. In the circumstances of this case it seemed to me and was the submission of counsel, that it would be appropriate that I proceed first to determine the question of the accused’s mental competence to commit the offence. I therefore embarked on the inquiry in accordance with the provisions of s 269F of the Act.
I have been supplied with two psychiatric reports. The first is from Dr Chris Branson dated 21 August 2002, which was ordered to be provided by this court. The second is from Dr Kenneth O’Brien, a consultant forensic psychiatrist, which is dated 10 September 2002.
Both psychiatrists have offered the opinion that at the time the alleged offence occurred the accused was suffering from chronic paranoid schizophrenia.
Dr Branson expressed the opinion that the accused had been suffering from that mental condition for a period of six years. Indeed there is support for Dr Branson’s opinion inasmuch as the accused had been diagnosed much earlier than this offence with that condition.
The evidence appears to be that the condition is capable of being controlled to some extent by medication but only if the accused is prepared to submit to and to continue with that medication.
Both psychiatrists have offered the opinion that the accused was psychotic at the time the alleged offence occurred and therefore suffered a mental impairment. Both opined that the accused did not know that his conduct was wrong, in the sense that by virtue of his active illness he could not reason about its wrongfulness ‘with a moderate degree of sense and composure’.
Section 269C of the Act provides:
“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; or
(c)     is unable to control the conduct.”
The accused must be found to be mentally incompetent if he is suffering from a mental impairment and as a consequence does not know one of those matters referred to in s 269C.
It is the opinion of both psychiatrists that at the time the alleged offence occurred the accused did not know that his conduct in committing the alleged offence was wrong.
In those circumstances the accused has brought himself within s 269C(b) of the Act.
Both the prosecution and the defence have agreed that I should dispense with any further investigation into the accused’s mental competence to commit the offence and both have submitted that I should record a finding that he was mentally incompetent to commit the offence. Such a course is permitted pursuant to s 269FA(5) of the Act.
It was my opinion that it would be appropriate to dispense with any further investigation into the accused’s mental competence to commit the offence and upon the psychiatric reports, which had been tendered and received, record a finding that the accused was mentally incompetent to commit the offence and I did so. I confirm that I made a finding that the accused was mentally incompetent to commit the offence.
The Act provides that if I make such a finding I must then embark upon an inquiry into the objective elements of the offence with which the accused is charged.
On the trial of the objective elements of the offence I am obliged to exclude from consideration any question of whether the accused’s conduct is defensible: s 269FB(4).
‘Defensible’ is defined in s 269A:
“defensible” - a defendant’s conduct is to be regarded as defensible in proceedings under this Part if, on the trial of the offence to which the proceedings relate, a defence might be found to exist;”
‘Defence’ is also defined in s 269A:
“defence” - a defence exists if, even though the objective elements of an offence are found to exist, the defendant is entitled to the benefit of an exclusion, limitation or reduction of criminal liability at common law or by statute.”
On this inquiry I must therefore ignore any question of any defence which might be available to the accused.
The accused was released from Glenside Hospital on 24 March 2000, on the expiry of a limiting term imposed as part of his licence on the charge of threatening life which occurred in 1997. After his release he ceased taking his medication, which had been prescribed for his then diagnosed illness of paranoid schizophrenia. He went to Pinnaroo and Sydney, he travelled around Sydney, travelled to Melbourne and later the Gippsland. Eventually he contacted the deceased and asked whether the deceased would accommodate him for a few days.
At some stage whilst at the deceased’s house the accused became very angry, for reasons which he cannot articulate, and stabbed the deceased. When interviewed by a police officer on 14 September 2001, he admitted killing the deceased.
For the purpose of these proceedings the accused has admitted, pursuant to s 34 of the Evidence Act 1929 (SA), in a document filed in the court, and in submissions made by his counsel, that:
(1) On the 12th day of September 2001, Anthony Gordon Butler attacked David Gerard with a knife.
(2) During the course of the attack he caused the injuries described at page 4 and 5 in the statement of Dr John Duncan Gilbert dated 21 November 2001.
(3) Death was caused by injury described at page 4 and 5 of Dr Gilbert’s statement, a single stab wound with a knife to the chest resulting in massive haemorrhaging to the left chest cavity.
The admissions are consistent with the witness statements which have been provided to me and which I have read.
In my opinion, those admissions and witness statements establish the objective elements of the offence beyond reasonable doubt. Indeed, those admissions themselves establish the objective elements beyond reasonable doubt.
I therefore record a finding that the objective elements of the offence have been established.
Section 269FB(3) provides that if I find the objective elements to be established and that the accused was mentally incompetent to commit the offence, I must declare the accused to be liable to supervision under part 8A of the Act, at the same time as entering a verdict that the accused is not guilty of the offence.
I therefore enter a verdict that the accused is not guilty of the offence.
I declare the accused to be liable to supervision under part 8A of the Act.
The accused is committed to detention pursuant to s 269O(1)(b)(i). The Act requires me to make a limiting order pursuant to s 269O(2) of the Act. In doing so I must fix a term equivalent to the period of imprisonment that would, in the court’s opinion, have been appropriate if the accused had been convicted of the offence for which the objective elements have been established. If the accused had been convicted of the offence of murder he would have been sentenced to life imprisonment. In those circumstances I must fix a term equivalent to the period of life imprisonment. Therefore the accused is liable to supervision for the period of his life.

[2003] SASC 5

14 January 2003