R v Colella - [2016] SASC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v COLELLA
[2016] SASC 31
Reasons for Decision of The Honourable Justice Nicholson
8 March 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
The defendant was charged with the murder of her elderly husband Antonio Colella. She pleaded not guilty on the grounds of mental incompetence.
The prosecution conceded that the defendant was not mentally competent to commit murder at the time of the incident. The defendant conceded the objective element of the offence of murder and elected for both issues to be determined by Judge sitting without a jury. The Court exercised its discretion to determine first the issue of mental competence.
The Court considered all relevant psychiatric reports and witness statements tendered by the Prosecution. The opinions of the examining psychiatrists are accepted. The defendant was mentally incompetent to commit the offence of murder. The objective element of the offence of murder was established.
Held:
1. The Court is satisfied beyond reasonable doubt that the objective element of murder has been established.
2. The Court finds on the balance of probabilities that the defendant was suffering from a mental illness at the time she killed the deceased, and that she did not know that her conduct was wrong.
3. The defendant is not guilty of the offence of murder on the grounds of mental incompetence.
4. The Court declares that the defendant is liable to supervision and is subject to a limiting term of life.
Criminal Law Consolidation Act 1935 (SA) s 269A, s 269C, s 269FB, s 269O, referred to.

R v COLELLA
[2016] SASC 31
Criminal
NICHOLSON J.
Introduction

The defendant, Lucia Colella, was charged with having murdered her husband, Antonio Colella at Alberton on 6 July 2014. She pleaded not guilty by reason of mental incompetence. It was the prosecution case that early that morning the defendant who was 75 years old stabbed and bludgeoned her 76 year old husband to death in their bedroom.
The defendant through her counsel elected to have both the issue of mental incompetence and the issue of whether the objective elements for the offence of murder were made out to be tried by a Judge sitting without a jury.[1]
[1] Section 269B Criminal Law Consolidation Act 1935 (SA).
On 22 December 2015 and after hearing from counsel, I found the defendant not guilty of murder by reason of mental incompetence. I declared that she had been mentally incompetent to commit the offence and I declared that she was liable to supervision in accordance with the provisions of Part 8A of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). These are my reasons.
Legislative scheme
Part 8A of the Act provides a scheme for the detention or release on licence of defendants who suffer from a mental impairment and, as a consequence, have been acquitted of a criminal offence. Section 269C provides as follows:
269C – Mental competence
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 definition of “mental impairment” is provided for in s 269A(1):
269A – Interpretation
...
mental impairment includes–
(a)a mental illness; or
(b)an intellectual disability; or
(c)a disability or impairment of the mind resulting from senility,
but does not include intoxication.
Mental competence
I conducted the trial hearing by proceeding first with a consideration of the defendant’s mental competence. Counsel for the Director of Public Prosecutions conceded that the defendant was mentally incompetent at the time of the conduct the subject of the charged offence.
In addition to lay person and police witness statements, the materials before the Court included: psychiatric reports by Dr Geoffrey Seidel dated 14 August 2015 and 27 April 2015 and by Dr Craig Raeside dated 26 February 2015, 6 November 2014 and 22 September 2014 together with a statement of Dr Carole Fraser dated 6 May 2015.
Dr Fraser was the defendant’s treating psychiatrist at the Queen Elizabeth Hospital between 16 July 2014 and 7 November 2014. When the defendant first presented to Dr Fraser on 16 July 2014, after she had been discharged from the Royal Adelaide Hospital, she did not speak to anyone and had poor eye contact. Following this, she frequently told Dr Fraser that she wanted to die. The defendant was frightened and extremely agitated. She was having hallucinations during which she would see people, including her dead grandmother and people who were screaming at her. Members of the defendant’s family advised that the defendant had a prior history of psychosis and previously had been prescribed antipsychotic medication. However, she was not on any medication at the time of the incident. The defendant’s general practitioner had taken the defendant off the medication due to its side effects. The defendant also, in the time leading up to the incident, had experienced episodes of paranoia.
Dr Fraser deduced that the defendant had been sleep deprived at the time of the incident as a result of the constant demands of looking after the house and the deceased, who required regular care due to his physical condition. She “ran the house” by doing the cooking and shopping but did not accept assistance from others, nor did her husband. Dr Fraser prescribed medication for the defendant. At the time the defendant was discharged from hospital, she was still experiencing auditory hallucinations, albeit faint.
Dr Raeside saw the defendant on 17 July 2014, shortly after she had been admitted. In his report dated 22 September 2014, Dr Raeside outlined the defendant’s background and mental condition. He noted that she had poor memory and did not produce any correct answers when he conducted the Montreal Cognitive Assessment. The defendant reported visual hallucinations involving dead people, some of whom spoke to her but she could not understand what was being said. As a consequence, she was frightened and paranoid.
When asked about the incident, the defendant did not have any recollection of what had occurred and struggled to inform Dr Raeside about what she had been charged with. The defendant recalled that the Saturday in question had been a “normal day” but that her next memory was in the hospital, where she recalled seeing police. She could not recall the police having attended at her Alberton home.
Dr Raeside noted that the defendant had a reported history of mental illness. Some 15 or so years earlier, she had experienced hearing the voices of her uncle and grandmother in her head. The voices would scream at her but she could not understand what was being said. She had been treated by her general practitioner who prescribed medication. The defendant said that the voices seemed to go away and, after a few months, she stopped taking the medication. A number of years later, the defendant experienced similar symptoms and again was prescribed medication. She was told that “it was nothing” and the information then available indicated that she may have suffered from a stroke. After being discharged from hospital, the defendant’s general practitioner treated her with Aspirin and she remained apparently well.
Dr Raeside obtained a history from the defendant’s family. The defendant had an episode almost twenty years ago of being superstitious and afraid. It was around this time that the defendant had been prescribed an antipsychotic drug, Stelazine, by her general practitioner. The defendant’s family believed she had improved and so the defendant stopped taking the medication. The defendant had since then had several apparent psychotic episodes, the most recent of which were about three to four months prior to the incident.
The defendant came to Australia from Italy at the age of 21. She grew up in the same village as the deceased. She married him by proxy while he was living in Australia and she later joined him in Australia. Dr Raeside noted that in the months leading up to the deceased’s death, she had not been sleeping well and had experienced increasing physical demands in looking after the deceased. The defendant denied to Dr Raeside having thoughts of wanting to put the deceased “out of his pain and suffering”. The defendant could not recall hearing any voices commanding her to do anything, or feeling paranoid about the deceased.
In his report dated 22 September 2014, Dr Raeside opined that the most likely diagnosis based on the information before him was major depressive disorder with psychosis. He noted that schizophrenia with recurrent episodes may be an alternative diagnosis. However, he highlighted the importance of reviewing the notes of the defendant’s general practitioner to assist in diagnosis clarification. He nevertheless concluded that the defendant had been suffering from a severe psychotic illness at the time of the incident.
Dr Raeside was asked to provide a further report following his receipt of additional written materials. After reviewing, and summarising aspects of, the general practitioner’s notes, Dr Raeside, in his report dated 26 February 2015, concluded that his opinion given in his report of 22 September 2014 had been “further strengthened”. Dr Raeside expressed the view that the defendant had a mental incompetence defence available to her; there was “clear evidence” that she had been suffering from a severe mental illness at the time of the offence, most likely a major depressive disorder with psychosis. In his opinion, the defendant, whilst knowing the nature and quality of her alleged actions, would have been “unable to reason with a moderate degree of sense and composure about the wrongfulness of the actions given the weight of her psychotic illness”.
Dr Seidel interviewed the defendant on 1 April 2015 and noted that this interview was difficult due to cultural and language barriers and that the defendant needed the assistance of an Italian interpreter. Dr Seidel concluded that there was “overwhelming evidence” that the defendant has suffered from a recurrent psychotic illness and that the most likely diagnosis for the defendant is major depressive disorder with psychotic features. Dr Seidel also provided a differential diagnosis of late onset paranoid schizophrenia. He noted that there was some speculation involved because of the defendant’s inability to recall the events. In arriving at his opinion, Dr Seidel was assisted by forensic psychiatric literature dealing with general psychogeriatric practice. Dr Seidel concluded that, on the balance of probabilities, the defendant lacked the requisite mental competence to commit the offence due to her illness, and that her psychosis may have contributed to her amnesia of the events.
As earlier indicated the Director has conceded the defence of mental incompetence. On the basis of the materials before the Court including the witness statements of family members and those outlining the circumstances of the immediate aftermath of the incident and the opinions of the examining psychiatrists, I am satisfied on the balance of probabilities that, at the time of the incident resulting in the death of Antonio Colella, the defendant was suffering from a mental impairment, namely a mental illness, within section 269A. I am satisfied that, as a consequence, the defendant did not have sufficient capacity to understand and did not understand the wrongfulness of her actions. I find that the defendant was mentally incompetent to commit the offence of murder.
Objective element of the offence
Pursuant to section 269FB(1) of the Act, it is necessary for me to consider whether the objective element of the offence, that the defendant’s actions caused the death of the deceased, has been established.
The objective element of the offence was conceded by counsel for the defendant. The witness declarations disclose the following factual summary.
At 7:46am on Sunday, 6 July 2014, an ambulance officer attended at the residence of the defendant in Alberton, which she shared with her husband, the deceased. The officer had responded to a medical duress alarm. The defendant presented to the ambulance officer at the front door of the residence as agitated, mumbling, and said words similar to “killing husband”. The defendant directed the ambulance officer to the main bedroom where he saw the deceased whose head appeared to be covered in blood. He also observed blood splattered on the walls of the room. The defendant was observed to have a knife tucked into her shirt. The ambulance officer returned to his vehicle and requested the attendance of the police and further ambulance officers.
Police arrived at the Alberton residence at approximately 8:00am and entered the premises. Soon after the police had entered the property, the ambulance officer was invited by police to attend to the deceased. The deceased was declared dead at the scene.
Following an autopsy, it was concluded that the deceased had suffered a number of sharp force injuries to his head consistent with being hit by an axe. The deceased also suffered stab wounds to his neck and to his chest. The injuries to the deceased’s head and body were each capable of causing his death. The police located two bloodstained knives on the bed where the deceased had been found and a bloodstained axe underneath the bed. The deceased had cuts to his left hand consistent with defensive injuries.
When the police arrived at the Alberton residence and knocked on the front door, the defendant answered the door and came out to the front porch of the residence. The defendant appeared upset, was shaking her head, pointing back towards the house and mumbling softly. She appeared to have blood on her clothes and hands.
The defendant was asked by police whether she had any injuries. She showed police a large cut to the inside of her left elbow and pointed to her chest, where there were multiple stab wounds. The ambulance officers then attended to the defendant and observed that the stab wounds appeared to be self-inflicted. The defendant was taken to the Royal Adelaide Hospital and was treated for her injuries.
In hospital, the police spoke to the defendant with the assistance of an interpreter and formally arrested her. This conversation was recorded. As the police officer was explaining to her that she was not obliged to say anything and that the conversations would be recorded and could be used in evidence, the defendant was recorded saying through an interpreter “Mm, I’ve done it, I killed my husband”. The defendant was charged later that day with the murder of the deceased.
The defendant was the only other person present at the address when the ambulance officer and police had arrived at the residence. She has no recollection of the incident. On my review of the evidentiary materials before the Court I am satisfied that the defendant killed the deceased. I am also satisfied that the possibility of self-defence is not raised on the evidence.
Conclusion
At the conclusion of the hearing on 22 December 2015, I was satisfied beyond reasonable doubt that the objective element of murder had been established. I was satisfied, on the balance of probabilities, that the defendant had been suffering from a mental illness at the time she killed the deceased, and that she did not know that her conduct was wrong. I found the defendant not guilty of murder on the grounds of mental incompetence.
I declared the defendant liable to supervision and made a supervision order pursuant to section 269O(1)(b)(i), and set a limiting term of life. I also ordered that the further reports required under Part 8A of the Act be obtained and adjourned the matter for further consideration.