R v Childs - [2023] SASC 103

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v CHILDS
Criminal Trial by Judge Alone
[2023] SASC 103
Reasons for Decision of the Honourable Justice Lovell
14 July 2023
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - GENERALLY
The defendant was charged with attempted murder. The defendant alleged he was mentally incompetent to commit the offence on the basis he could not reason his conduct was wrong. The prosecution contests that allegation.
The investigation to determine whether the defendant was mentally competent to commit the offence came before me pursuant to Part 8A of the Criminal Law Consolidation Act 1935 (SA).
Held:
1.The defendant was mentally incompetent to commit the offence of attempted murder pursuant to s 269(1)(b).

Criminal Law Consolidation Act 1935 (SA) s 269, referred to.
Evans v The State of Western Australia [2010] WASCA 34; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v Bonython (1984) 38 SASR 45; R v NCT (2009) 26 VR 247; R v Porter (1936) 55 CLR 182; Rhoden v Wingate [2022] NSWCA 165; Stapleton v The Queen (1952) 86 CLR 358; Taylor v R (1978) ALR 599, considered.

R v CHILDS
[2023] SASC 103
Criminal
LOVELL J:
Overview:

On 30 October 2018, the defendant shot Mr Barry Evans in the neck and the shoulder. Mr Evans was injured but survived the shooting. The defendant was Mr Evans’ cousin but the two of them had not seen each other for some time. The defendant was charged with attempted murder, and, in the alternative, endangering life. The defendant alleges he was mentally incompetent to commit the offence.
The mental competence of an accused to commit an offence is presumed unless a person is found on an investigation under pt 8A of the Criminal Law Consolidation Act 1935 (SA) (‘the Act’) to be mentally incompetent. The matter came before me as an investigation into the defendant’s mental competence to commit the offence pursuant to pt 8A of the Act.
The defendant was examined by two forensic psychiatrists, Dr Heaney and Dr Furst, for the purpose of the investigation. They both gave evidence for the defendant, and both opined that, at the time of the shooting, the defendant was mentally incompetent to commit the offence. Despite the psychiatric evidence and having elected to not call expert evidence to support their case, the prosecution contended that the defendant was mentally competent to commit the offence. That is, the prosecution submitted that I should not accept the opinions of the two psychiatrists and should find that the defendant has not discharged the onus of proving that he was mentally incompetent to commit the offence of attempted murder.
Conduct of the hearing
In Rhoden v Wingate, Sheller JA wryly observed:[1]
In an Arcadian forensic setting, if expert evidence is to be used, a party would first put its primary factual material before the court either in…

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 Childs

Details

AGLC: R v Childs [2023] SASC 103
Case: [2023] SASC 103
Decision Date

CaseChat Overview and Summary

The case of R v Childs involved a defendant accused of committing a serious offence, and the primary legal issue was whether the defendant was mentally competent at the time of the offence. The matter was heard in a court of law in Australia where the defendant's mental state and capacity to understand the wrongfulness of his actions were key points of contention. The court was required to determine if the defendant's mental incapacity was such that he could not understand that his conduct was wrong, as perceived by reasonable people, at the time the offence was committed.

The court considered the expert evidence provided by Dr Haeney, who was deemed qualified to offer his opinion on the defendant's mental state. Dr Haeney's report and subsequent testimony highlighted the conflicting information about the defendant’s mental condition, which included inconsistent self-reports and varying observations from mental health professionals and his Community Corrections Officer. Despite these discrepancies, Dr Haeney concluded that the defendant experienced command auditory hallucinations and symptoms of psychosis at the time of the offence, which impaired his ability to comprehend the wrongfulness of his actions.

The court concluded that the expert evidence was admissible and appropriately considered the factors outlined in Makita, which govern the admissibility and assessment of expert testimony. It was noted that the expert evidence was unchallenged in terms of the qualifications of the experts and the facts underpinning their opinions. The court accepted the experts' interpretation of the facts and their conclusions regarding the defendant's mental state. However, despite the unanimity in expert opinion, the prosecution argued that the caveats expressed by the experts should lead to a different conclusion regarding the defendant's competency. The court found that while the experts' opinions were persuasive, the ultimate determination of the defendant's mental competency remained within the purview of the court, which was to consider all evidence, including expert testimony, in reaching a decision.

Ultimately, the court made its findings based on the established facts and the expert opinions, ensuring that the expert evidence was properly assessed and not capriciously disregarded. The court's reasoning underscored the importance of expert evidence in cases involving complex mental health issues but also highlighted the necessity for judicial officers to exercise independent judgment when determining the relevance and weight of such evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I agree with Dr Haeney’s understanding of the test. The test is not directed towards an incapacity to reason on anything and everything; it directs attention to a narrower issue. The test requires the court to consider whether a defendant has a total incapacity to know that their conduct was wrong; that is, that they could not reason that their conduct was wrong as perceived by reasonable people. The relevant time is the time the offence is committed. In this matter, the relevant time is when the defendant fired the gun.The expert evidenceEvidence of Dr Haeney Dr Haeney’s report dated 2 October 2020 was tendered and he gave evidence in support of his opinions. Unsurprisingly, Dr Haeney’s qualifications and experience were not challenged; he is well qualified to express an opinion in this matter. In his report and in his evidence, Dr Haeney accepted that there was conflicting information about the defendant’s mental state around the time of the shooting. For example, in the weeks and months leading up to the shooting he presented as subjectively and objectively well to mental health staff, yet his supervising Community Corrections Officer reported unambiguous symptoms of psychosis. The defendant’s self-reports were also inconsistent. Whether he was taking his medication regularly is also unclear. Dr Haeney stated:His account of the offence is somewhat puzzling, potentially related to ongoing symptoms that urge him not to trust us and not to tell us anything. He gives a rather vague account of voices telling him to do it, but initially with little depth to his explanations. With persistence, and repeated interviews, he is able to provide further background to his beliefs about aliens controlling the world using their technology to infiltrate humankind, working with governments and a shadowy group he calls 'Intel' to monitor us. However, there appears little direct link between these beliefs and his conduct at the material time, other than one comment that the aliens were urging him to recover their technology. In a subsequent interview he reported the main motivation was the watch's sentimental value. He does, nonetheless, report clear symptoms of psychosis in the form of command auditory hallucinations urging him to get the watch and shoot the victim.His conduct does appear to be odd, to the victim and other family members as well as to me. To my knowledge, there is no other plausible motive for such a sudden, unheralded attack. The victim claimed to know of no reason why his cousin would attempt to kill him. He denied any dispute between them. He commented on Mr Childs' wild appearance and lack of discussion about the supposed reason for his attendance. Other witnesses and family members confirm no known reason for the attack, other than Mr Childs apparently seeking a watch from several years ago, despite another cousin agreeing to pay the debt. On arrival there seemed to be no conversation about the watch and instead Mr Childs tried to force his way in and shot the victim twice. In the police interview Mr Childs did make a comment that he wondered if his cousin had been responsible for the attack on him by masked men the previous week, although he has since denied believing this.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

While dealing principally with the question of the admissibility of opinion evidence, Heydon JA’s comments also deal with the question of how a trier of fact should assess the expert evidence. Consideration The prosecution accepted that both Dr Furst and Dr Haeney were well qualified to give expert evidence. The prosecution did not suggest that they were anything other than credible witnesses. The prosecution did, during the course of a well-directed cross examination, point to some errors in their recitation of the facts. To their credit, both Doctors accepted the corrections. They were also cross examined on what inferences could, or should, be drawn from various undisputed facts. Much of the cross examination was directed at the unreliability of the defendant’s statements subsequent to the shooting and also to the fact that it was clear that he knew, at least very quickly after the shooting, that what he did was illegal. As previously discussed, both Dr Haeney and Dr Furst had already considered most of these issues before arriving at their final conclusions. I accept their interpretation of the facts. For example, I accept their interpretation of the defendant’s use of the expression “Intel” during the course of his police interview. The additional matters raised were considered but both Dr Haeney and Dr Furst maintained that those additional matters did not cause them to change their respective opinions. For the avoidance of doubt, I find that the facts underpinning the opinions of Dr Furst and Dr Haeney have been established. I find that the inferences they drew from the facts were appropriate. Despite the unanimity of the opinion evidence, and that the facts underpinning the opinions are not disputed (only the inferences to be drawn from the facts), the prosecution submitted that given the caveats expressed by both Doctors, I should not be satisfied, on the balance of probabilities, that the defendant has established that he was mentally incompetent to commit the offence. This raises the issue of where the pre-conditions to admissibility of the expert evidence have been met, as expressed in Makita, how a judicial officer or jury then assesses the relevance and weight to be given to expert evidence particularly when it is accepted that the issue is one in which ordinary persons are unable to form a sound judgment about without the assistance of those possessing special knowledge or experience. It is a standard jury direction that where expert evidence is unchallenged, the jury, while not obliged to act on the evidence, must not capriciously disregard it. Relevant factors in assessing expert evidence include whether the expert is suitably qualified, whether the assumed facts underpinning the opinion are proved and whether the expert has given their evidence in a partial or impartial manner.[14][14] Taylor v R (1978) 22 ALR 599; R v NCT (2009) 26 VR 247, 253. On a trial by judge alone, the above factors are also relevant. The judge must write reasons that explain how the decision was reached. A capricious rejection of expert evidence simply because it is up to the trier of fact whether to accept the expert evidence is likely to be viewed adversely on appeal. That is not to say that the evidence cannot be rejected. It can, but there must be a proper basis for doing so. That is, I agree that the trier of fact cannot reason that simply because two psychiatrists agree that a defendant was mentally incompetent to commit an offence, they have no role to play in exercising their own independent judgement.