R v Delany - [2022] SASC 125

Supreme Court of South Australia
(Criminal)

R v DELANY
Criminal Trial by Judge Alone
[2022] SASC 125
Reasons for Decision of the Honourable Justice Nicholson
3 November 2022
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - INDUCING INSANITY OR MENTAL IMPAIRMENT
Mr Delany was charged with five counts on the one Information arising out of his conduct on 19 August 2019. Mr Delany was diagnosed with schizophrenia in 2015 and has a long history of treatment and psychotic relapses. Mr Delany had not taken his anti-psychotic medication in the three months prior to his conduct. At the time of the conduct, according to expert evidence, Mr Delany had enough methylamphetamine in his system to cause drug induced psychosis.
An investigation into Mr Delany’s mental competence under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (the Act) was ordered, as to which Mr Delany elected to proceed by trial by Judge alone.
The defence conceded that the objective elements of all five offences had been proved beyond reasonable doubt. The prosecution conceded that Mr Delany was mentally incompetent at the time of the conduct, but argued, in accordance with subsection 269C(2) of the Act, that the mental incompetence was substantially caused by self-induced intoxication as a result of methylamphetamine consumption. As such, the power in subsection 269C(2) of the Act to proceed in accordance with the more punitive Part 8 of the Act was enlivened.
On 13 April 2022, as part of the Part 8A investigation, three experts gave evidence on the question of whether Mr Delany’s mental incompetence at the time of the conduct was substantially caused by the methylamphetamine he had consumed on that day.
Held:
1.The prosecution has failed to prove on the balance of probabilities that Mr Delany’s mental incompetence was substantially caused by self-induced intoxication as a result of his methylamphetamine ingestion and subsections 269C(2) and (3) of the Act are not engaged.
2.William Robert Delany is not guilty of all five counts on the basis that, at the time of the relevant conduct, he was mentally incompetent to have committed the offences pursuant to s 269C(1)(b).
3.William Robert Delany is to be subject to supervision in accordance with the provisions in Part 8A of the Act.

Criminal Law Consolidation Act 1935 (SA) ss 269A, 269C, 269D, referred to.
Question of Law Reserved (No 1 of 2021) [2021] SASCA 148; Royall v The Queen (1991) 172 CLR 378; R v McCarthy (2015) 124 SASR 190, considered.

R v DELANY
[2022] SASC 125
Criminal
NICHOLSON J.
Introduction and conduct constituting the alleged offending

Mr Delany has been charged with five counts on the one Information alleging a series of offences arising out of his conduct on 19 August 2019 (the conduct): murder; aggravated causing harm with intent to cause harm; assault causing harm; aggravated serious criminal trespass in a place of residence; and aggravated assault. Mr Delany was diagnosed with schizophreniform psychosis in 2012. He was diagnosed with schizophrenia in 2015. At the time of the conduct, Mr Delany had a significant amount of methylamphetamine in his system.
On 7 September 2020, Livesey J ordered that there be an investigation into Mr Delany’s mental competence to commit the offences with which he had been charged. Mr Delany elected for a trial by Judge alone. The prosecution conceded that Mr Delany was mentally incompetent at the relevant time to commit the charged offences. However, it raised the issue of whether the mental impairment that gave rise to the mental incompetence had been substantially caused by self-induced intoxication. If so, the question of whether he was to be dealt with pursuant to the therapeutically directed Part 8A of the Criminal Law Consolidation Act 1935 (SA) (the Act) or the potentially more punitive Part 8 of the Act would arise.
Since his diagnoses, Mr Delany has had a long history of treatment and psychotic relapses. In March 2019, his prescribed dose of the anti-psychotic medication aripiprazole, which was administered monthly,[1] was reduced from 400 mg to 300 mg. Mr Delany had last taken aripiprazole on 9 May 2019, over three months before the conduct. Mr Delany was not on any other form of anti-psychotic medication. In the weeks leading up to the conduct, several people observed Mr Delany act in an erratic and paranoid manner.
[1] Transcript of 13 April 2022, T30.
Mr Delany smoked methylamphetamine at least three times on 19 August 2019. An associate described his conversation at this time as “random” and he was described by associates as “wigging out”, breathing heavily, agitated, nervous, making no sense and “roaring”.
According to Professor Jason White, a psychopharmacologist, the methylamphetamine in Mr Delany’s system would have reached peak concentration, and he would have been most vulnerable to psychosis as a result, between 4.00 pm and 4.30 pm on 19 August 2019.[2] Mr Delany also consumed cannabis during the day, which can increase the likelihood of psychotic effects.[3]
[2] T16.
[3] T16.
Around 4.00 pm on 19 August 2019, Mr Delany was at Nathan Clark’s home unit. Mr Delany stabbed Mr Clark with a screwdriver multiple times. Mr Clark died as a result of his injuries.
Mr Delany left Mr Clark’s unit and approached Benjamin Stretton, who was standing outside his own unit which was in the same block as Mr Clark’s. Mr Delany hit Mr Stretton over the head two or three times with a brick or a rock.
Mr Delany then walked to a nearby house. Mark Knight observed Mr Delany trying to break into or damage his car out the front of his house. Mr Knight went outside to confront him and Mr Delany pushed Mr Knight to the ground, causing injury to Mr Knight. Mr Delany then followed Mr Knight inside his house where he took hold of a fire extinguisher and released it, spraying white powder into Mr Knight’s face.
Police arrived at the scene shortly after 4.00 pm. Initially, Mr Delany was arrested for refusing to provide his name and address and was taken to hospital. Mr Delany was later charged as set out above. A sample of his blood was taken that day. Only a trace amount of aripiprazole was in Mr Delany’s system. Professor White expressed the opinion that the aripiprazole would have had no effect at the time of the conduct.[4] There was also a relatively large amount of methylamphetamine in Mr Delany’s blood. Professor White stated that the amount of methylamphetamine would have been sufficient to trigger a psychotic episode.[5]
[4] T13-14.
[5] T14.
The law
When considering questions of criminal responsibility, the Act provides for mental incompetence due to mental impairment to be dealt with in two different ways depending on whether the mental impairment was substantially caused by self-induced intoxication. A person is presumed mentally competent to commit a criminal offence unless mental incompetence is found following an investigation under Part 8A of the Act.[6] Mental incompetence is defined in subsection 269C(1).
[6] Section 269D.
(1)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; that is, the person could not reason about whether the conduct, as perceived by reasonable people, is wrong; or

…
(c)     is totally unable to control the conduct.
Subsection 269C(2) deals with mental incompetence due to self-induced intoxication.
(2)If, on an investigation under this Division, a person is found to be mentally incompetent to commit an offence and the trial judge is satisfied, on the balance of probabilities, that the mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self-induced intoxication (whether the intoxication occurred at the time of the relevant conduct or at any other time before the relevant conduct), the person may not be dealt with under this Part but may (if appropriate) be dealt with under Part 8.
However, where a person is found to fall within subsection 269C(2), subsection 296C(3) empowers the trial Judge, notwithstanding, to deal with the person under Part 8A.
(3)However, despite the fact that the judge is satisfied that the person's mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self-induced intoxication, the judge may nevertheless make an order that the person be dealt with under this Part after taking into account—
(a)     the time and circumstances of when and how the intoxication caused the mental impairment; and
(b)     the interests of justice; and
(c)     whether the making of such an order would affect public confidence in the administration of justice.
The question of which of the three subsections is to govern a particular case can be assisted by expert evidence, but the ultimate determination is for the trier of fact.[7]
[7]    Question of Law Reserved (No 1 of 2021) [2021] SASCA 148 at [36] (Kourakis CJ), [90], [194] (Livesey JA).
The initial Part 8A hearing
On 7 September 2020, Livesey J ordered, pursuant to Part 8A of the Act, an investigation into Mr Delany’s mental competence to have committed the offences with which he had been charged. At that hearing, the prosecution conceded that Mr Delany had been mentally incompetent and the defence conceded that the objective elements of each of the charged offences had been proved beyond reasonable doubt on the basis of the prosecution declarations. His Honour made no findings or further orders; in particular, his Honour made no finding that Mr Delany was not guilty by reason of mental incompetence and that he was to be subject to supervision pursuant to Part 8A of the Act.
Thereafter, the matter was adjourned on a number of occasions before ultimately finding its way to the Court of Appeal for certain preliminary questions of law to be determined.[8]
[8] Question of Law Reserved (No 1 of 2021) [2021] SASCA 148.
Question of Law Reserved for the Court of Appeal
On 2 December 2020, Livesey J reserved three questions of law in this matter for the Court of Appeal.
1.If a defendant is found to be mentally incompetent to commit the offences with which he is charged and, at the time of the offending is found to be intoxicated as a result of self-induced intoxication, must the Court be satisfied on the balance of probabilities that the self-induced intoxication be the primary cause of the mental impairment at the time of the conduct alleged to give rise to the offending before the prohibition contained in s 269C(2) of the Criminal Law Consolidation Act 1935 (SA) is enlivened?
2.Within s 269(2), does the term “substantially caused” mean the primary cause?
3.Within s 269C(2), can there be more than one cause of mental impairment?
The three questions were answered in Question of Law Reserved (No 1 of 2021).[9] All three members of the Court, writing separately, found that the answers to the questions were “no” for the first two and “yes” for the third. Implicit in these answers is that self-induced intoxication does not have to be the sole or primary cause of the mental impairment in order for subsection 269C(2) to be engaged.[10]
[9] [2021] SASCA 148.
[10] And see Question of Law Reserved (No 1 of 2021) [2021] SASCA 148 at [90] (Livesey JA).
While the three questions of law reserved focussed on subsection 269C(2), Both Kourakis CJ and Livesey JA briefly considered subsection 269C(3).
Kourakis CJ expressed the following dicta:[11]
[11] Question of Law Reserved (No 1 of 2021) [2021] SASCA 148 at [33]–[34], [36].
I turn to the discretion conferred by s 269C(3) of the CLCA. A drug abuse disorder may be a symptom of a psychiatric illness, which can be brought under control by treating the illness, or it may be driven by an antisocial personality or other criminogenic traits which are resistant to treatment. In other cases in which self-induced intoxication substantially caused the impairment, the underlying mental illness may have resolved by the time of sentencing. The conferral of the discretion on the Court is not intended to punish offenders for taking drugs, but does recognise that in some cases of comorbidity there may be little utility in a Part 8A disposition. The manifest purpose of s 269C(3) of the CLCA is to allow the Court to make a judgment, in cases of comorbidity, on whether the rehabilitation of the offender is best assisted, and the protection of the community is best advanced, by a therapeutic or punitive disposition. It is for that reason that the application of Part 8A is subject to the discretion of the Court only when the relevant mental impairment is substantially caused by self‑induced intoxication, and not whenever it played any, even a minor, part in its causation. It is for that reason, too, that the discretion is enlivened whenever the mental impairment was substantially caused by self-induced intoxication and not only when it is primarily caused by it.
The culpability of the defendant arising from his or her voluntary ingestion of drugs or alcohol remains a relevant consideration but its weight will necessarily be limited for several reasons. First, the premise of the insanity defence is that persons who are not aware of the nature of their acts are not criminally responsible. Secondly, drug abuse by sufferers of major psychiatric illnesses is, as I earlier observed, often driven by a misguided desire to alleviate the illness’ symptoms. Thirdly, defendants will seldom foresee that their drug taking will result in the commission of the crime charged. True it is that in a general sense they are likely to appreciate in varying degrees that drug taking may exacerbate their illness but the offence for which they are to be sentenced is not the negligent self-management of their illness.
…
If the relevant mental impairment was substantially caused by self‑induced intoxication, the expert evidence on the relative contributions of the illness or the intoxication, and the degree to which treatment of the illness might still be effective, notwithstanding any co-existing drug abuse disorder, will inform the exercise of the discretion conferred by s 269C(3) of the CLCA.
Livesey JA observed:[12]
The matters specified may be regarded as open textured, intended to meet a very broad range of potential circumstances. Although cases of unintended or accidental consumption are excluded by the definition of “recreational use”, other cases of intoxication may give scope for the exercise of leniency (s 269C(3)(a)). The most obvious of these are cases where the intoxication – or abuse of drugs – is regarded as pathological or has been caused by the defendant’s difficulties with underlying mental illness. Whether or not that is so will be a question of fact, assisted by an understanding of a defendant’s longitudinal history, medical records and medical attendances over time. In addition, the requirement that the “interests of justice” be considered necessarily requires that consideration be given to a broad range of matters (s 269C(3)(b)). Similarly, the requirement to address whether making an order “would affect public confidence in the administration of justice” requires that consideration be given to concepts such as fairness, integrity and impartiality (s 269C(3)(c)).
The breadth of the potential circumstances to be addressed under s 269C(3) reflects that determining where the limits of criminal responsibility may lie will often depend, in difficult s 269C(2) cases, on a finely-balanced, nuanced assessment of the interaction between self-intoxication and the causes of mental impairment. The task set by s 269C(3) is necessarily tied to the particular circumstances of the case. In addition, the evaluation of what will often be a complex mix of medico-legal issues must be undertaken in a manner that is both fair to an accused and so as to preserve the expectation in the community that a defendant will be held criminally responsible for offending conduct in appropriate circumstances. How best to ensure the protection of the community and punish the offender will also be an important consideration.
Whilst an order can only be made after addressing the matters specified by s 269C(3), the potential for a defendant to be dealt with under Part 8A, even if the defendant’s mental impairment was substantially caused by self-induced intoxication, is important. The presence of s 269C(3) tends to reinforce the intention that, where appropriate, the Court is empowered to deal with defendants with what might be described as a therapeutic approach under Part 8A even where they would, prima facie, be subjected to ordinary criminal liability for their conduct because s 269C(2) is satisfied. That is, s 269C(3) is intended to ameliorate the potentially harsh operation of s 269C(2). Giving work to s 269C(3) tends to reinforce the modern, flexible approach to determining the most appropriate means of addressing the criminal liability and illness of the mentally impaired.
If it is difficult to satisfy s 269C(2), or if that test can only rarely be satisfied, there is correspondingly less scope to identify those cases where it is appropriate to adopt the flexible, therapeutic approach reflected in Part 8A. The overall statutory scheme does not assume that there is limited scope for the operation of s 269C(3). On the contrary, the statutory scheme appears to assume considerable potential scope for the operation of s 269C(3). Indeed, the existence and intended potential operation of s 269C(3) undermines the defendant’s arguments regarding the operation of s 269C(2) in this case.
(Footnotes omitted)
[12] Question of Law Reserved (No 1 of 2021) [2021] SASCA 148 at [229]–[232].
Resumed Part 8A hearing
Following the Court of Appeal determination, the matter came before me to complete the Part 8A investigation and to determine whether or not subsections 269C(2) and (3) were to be invoked.
Professor White, Dr Owen Haeney and Dr Craig Raeside gave evidence before me on the question of whether Mr Delany’s mental impairment at the time of the conduct was substantially caused by the methylamphetamine he had consumed that day. Further reports by each were also tendered.[13]
[13] Statement of Professor Jason White dated 20 January 2020; Report of Dr Craig W J Raeside dated 4 May 2020; Report of Dr Owen Haeney dated 29 July 2020.
Both Professor White and Dr Raeside stated that psychosis caused by relapsing schizophrenia and psychosis caused by the consumption of a large amount of methylamphetamine are indistinguishable.[14]
[14] T10 (Professor White), T27–8 (Dr Raeside).
Professor White performed back calculations which showed that Mr Delany had 0.81 mg of methylamphetamine per litre of blood in his system at the time of the conduct. Professor White said that Mr Delany would likely have been suffering a psychotic state because of both that amount of methylamphetamine and his schizophrenia.[15]
[15] T17.
Dr Raeside is a forensic psychiatrist at James Nash House. Dr Raeside opined that Mr Delany “was suffering an acute relapse of chronic schizophrenia” at the time of the conduct.[16] Dr Raeside found that the relapse of schizophrenia was “due to noncompliance with medication, aggravated by illicit drug use”.[17] Dr Raeside gave the following evidence:[18]
[16] T19.
[17] Dr Craig Raeside report (4 May 2020) at 37.
[18] T22.
Q.If you assume that at the same time as suffering from the mental impairment, namely schizophrenia, that he was intoxicated by methamphetamine at a level of 0.81 mg per litre and you assume that he suffers from a substance abuse disorder, would you say that the mental impairment at the time of the stabbing was caused by intoxication with methamphetamine or was it caused by the schizophrenia.
A.Obviously this is the complex issue there, but I certainly am of the opinion that his psychosis was not caused by the amphetamines. It was, in my opinion, caused by his schizophrenia that had been worsening for some time but at the time of his offending behaviour I think the amphetamines were certainly contributing to his overall psychotic state and also probably aggravating him more, the aggression and the driven nature was also contributed to by the amphetamines. But I wouldn't say it was caused in that extent but it was caused by the schizophrenia.
Dr Raeside said Mr Delany using methylamphetamine was “like throwing fuel on the fire”.[19] Later under cross-examination, the following exchange occurred:[20]
[19] T23.
[20] T32.
Q.Does that not mean then that a person who is in a position such as Mr Delany and has used a significant quantity of methylamphetamine at a time proximate to offending, offending in the course of suffering from a psychotic episode, will or may still manifest symptoms of schizophrenia notwithstanding that the impact of methylamphetamine has long worn off.
A.Yes.
Q.And notwithstanding that methylamphetamine was a substantial cause of the psychotic episode.
A.I would agree with you except for the word 'it was a substantial cause', which is the key word here but I agree that there can be cases in which amphetamines can be a substantial cause of a relapse of schizophrenia.
Q.Not the primary cause, just a substantial cause.
A.Yes.
Q.A substantially contributing cause.
A.Yes.
Q.Not the primary cause, we're on the same level there.
A.Yes.
Q.Just a substantial cause.
A.Yes, or a significant cause and I don't know what the difference is between 'significant' and 'substantial'.
Q.More than merely de minimis would be significant.
A.Yes.
(Emphasis added)

Dr Haeney is also a forensic psychiatrist at James Nash House and is Mr Delany’s treating psychiatrist. He stated in his report that:[21]
[Mr Delany’s] substance misuse would have further aroused and disinhibited him and exacerbated his underlying psychosis. On balance, however, I believe that Mr Delany’s mental impairment at the time of the conduct alleged to give rise to the offences was not substantially caused by his self-induced intoxication. The persistence of his illness in the months after the conduct, despite abstinence from intoxicants and despite treatment with medication, confirms in my opinion that the psychotic symptoms he experienced were not substantially due to the intoxicants.
[21] Dr Owen Haeney report (29 July 2020) at 38.
During his evidence, Dr Haeney said:[22]
Q.What you are saying is that the intoxication exacerbated the underlying psychosis.
A.Yes, it was clearly part of the context in which the offence occurred but was not, in my opinion, the cause of the mental impairment.
[22] T42.
I have extracted above what I understand to be the essence of Dr Raeside’s and Dr Haeney’s opinions concerning the subsection 269C(2) question. However, their reports and their evidence given before me are extensive. Their opinions as to whether or not self-induced intoxication was a substantial cause of the mental impairment were expressed in a number of slightly differently qualified ways.
The issues
I have reviewed the evidentiary material, including the prosecution witness declarations and the psychiatric reports, that was before Livesey J on 7 September 2020 and on the basis of which the prosecution and the defence gave their respective concessions. I have also reviewed the pharmacological and psychiatric reports and oral expert evidence that came before me. I am satisfied that the parties’ concessions were properly given. Insofar as it remains necessary, I express my satisfaction on the balance of probabilities and record findings that Mr Delany suffered from a mental impairment at the time he engaged in the conduct the subject of the charged offences as a consequence of which he did not know that his conduct was wrong[23] and, as such, was mentally incompetent to have committed these offences. I also express my satisfaction beyond reasonable doubt and record a finding that the objective elements of each of the charged offences were committed by Mr Delany.
[23] Subsection 269C(1)(b) of the Act.
If these findings were to remain undisturbed, Mr Delany would be entitled to a verdict of not guilty of all charges by reason of mental incompetence but rendered subject to supervision in accordance with the requirements of Part 8A of the Act. However, if subsection 269C(2) were to apply and the saving power in subsection 269C(3) not exercised, these findings would have no such legal effect. Rather, the matter would proceed in accordance with the provisions in Part 8 of the Act.
In the circumstances, two issues arise in this case: was Mr Delany’s conduct substantially caused by self-induced intoxication, that is, is it more likely than not that self-induced intoxication was a substantial cause (subsection 269C(2)); and, if so, can and should the power under subsection 269C(3) be exercised?
Further aspects of the evidence
The prosecution has provided a summary of the relevant evidence in uncontentious terms, which I accept. I set out below extracts from that summary[24] to be considered in addition to the evidentiary matters earlier set out.
[24] Prosecution submissions on s269C(2) of the Criminal Law Consolidation Act 1935 at [18].
Defendant’s conduct leading up to 19 August 2019, the day of the offending
The defendant’s mother Debra Delany states that the defendant started suffering from mental health issues in 2012, including paranoid delusions and auditory hallucinations. He was diagnosed with schizophrenia and schizoaffective disorder. It was at this time that she and the defendant’s father discovered the defendant was abusing methylamphetamine and cannabis. From 2012 to 2018 the defendant had five admissions to the Rural and Remote Mental Health Service due to suffering paranoid delusions. At the beginning of 2018 the defendant went to live with his parents on Hindmarsh Island. He was put on a Community Treatment Order and given intramuscular doses of Abilify.[25] While living with his parents the defendant was compliant with his medication regime. His parents also forbid him from using illicit drugs. He moved out of his parents’ house in June 2019 and went to live in Lobethal with a man. He told his parents that he had arranged to get his injections at Lobethal, but they didn’t believe he was truthful about this. Dr Sudev Santira Kesu, the defendant’s treating GP at the Balhannah and Mount Barker Medical Clinics, confirms that the defendant was compliant with his depo injections from 8 August 2018 to 9 May 2019, which was the date of the last injection he received at the clinic. It was when he moved out that his behaviour started to change and he thought the man he had moved in with was spying on him. In early July 2019 the defendant contacted Claude Lorenzin, a builder who he had previously worked with, asking if he had any work for him. Lorenzin re-employed the defendant as a carpenter. Around 20 July the defendant told Lorenzin that he was having issues with the person he was living with. Lorenzin offered for him to stay at his home. The defendant moved to Lorenzin’s home in St Agnes. The defendant worked for Lorenzin up until 13 August 2019. Since the defendant came back to work for him, Lorenzin observed that the defendant’s behaviour to be strange. He was paranoid, stating he believed people were tampering with his car.
Reece Firmager is a long term family friend of the Delany family. He is friends with the defendant. He states over the past few years he has watched the defendant’s mental health decline. On an occasion a few years ago Firmager and the defendant were at a mutual friends house playing video games. Firmager was talking to another male who was there. The defendant thought he was talking about him, so he came over and punched Firmager in the face giving him a black eye.
At about 3pm on the afternoon of 16 August 2019 Firmager drove around to his friend Chris Bullis’ home in Lobethal. When he arrived he observed the defendant’s Green Mitsubishi Lancer parked in an unusual way in Bullis’ driveway. Firmager drove up to the house and saw the defendant and Bullis talking outside the house. Firmager got out of his car and walked towards them. The defendant said “the last thing I need is witnesses” and he walked away towards his car. Firmager was concerned about the defendant’s behaviour so he called the defendant’s parents to advise them of his concerns. Debra Delany contacted police and reported the defendant as a missing person. Firmager left Bullis’ home about an hour after he had got there, and observed the defendant’s car to still be parked in the same location. However, the defendant was nowhere to be seen.
On the evening of 16 August 2019 the defendant turned up at the home of Brandan Hutchins and Kerrie Laughton in Woodside. They have known the defendant for years from growing up in the Woodside area. That evening the defendant turned up to the house and left. He was observed to have a bad injury to his leg. It was a gaping wound to his lower left leg which was bleeding. Hutchins got on his push bike and went looking for the defendant who he located on Lobethal Rd. The defendant was hobbling. Hutchins managed to convince the defendant to come back to his house. Hutchins mother cleaned the wound. They tried to convince the defendant to go to hospital to get treatment for it but he refused. The defendant told Hutchins he got the injury from shutting his leg in a door. He observed the defendant to be behaving erratically and with paranoia. He let the defendant stay over that night. During the evening Senior Constable Perry attended at the house looking for the defendant because he was listed as a missing person. Hutchings [sic] lied to Perry at this time and told her [sic] the defendant was not there. He got the defendant to contact his mother to tell her he was alright, which he did. The defendant spent the next day at Hutchins’ home. They drank alcohol and smoked cannabis. The defendant went and got his car from Bullis’ home and brought it back to Hutchins’ home. It had crash damage. As they [sic] day progressed and they drank more the defendant’s behaviour began to change. He wanted to party and play loud music. Hutchins wouldn’t allow it as he and Laughton have a 14 month old child that needed to nap. The defendant sat in his car and played loud music. The defendant left the house but returned a few hours later.
On 18 August 2019 Hutchins was becoming increasingly concerned about the defendant’s behaviour. That evening Senior Constable Perry returned to Hutchins’ property looking for the defendant. He let Perry speak to the defendant as he was getting worried about his behaviour. Soon after the defendant left in his car. That was the last time Hutchins saw him.
Senior Constable Perry states that when he spoke to Delany on the evening of 18 August 2019 outside 19 Kenton Valley Rd (Hutchins’ home) he observed an injury to the defendant’s leg which he advised he should seek treatment for. He asked him how he was feeling and the defendant stated he felt fine. Perry didn’t observe any damage to the defendant’s vehicle. Perry asked the defendant to call his mother and offered him the patrol phone to do so. He ended up calling and speaking to his father Michael Delany. Perry advised Michael Delany that the defendant was presenting fine apart from his leg injury which he had agreed to have treated promptly. The defendant told Perry he was staying at a friend’s house that evening in Mount Pleasant. Perry didn’t observe any signs of mental deterioration or imbalance at the time he spoke with the defendant. Debra Delany states the defendant is good at concealing his symptoms when he wants to.
The events of 19 August 2019
At about 12.27am on Monday 19 August 2019, a person by the name of Brock Rutyna received a phone call from the defendant. He knows the defendant through a mutual friend. Rutyna’s partner Rhiannon Lloyd also knows the defendant. The defendant told Rutyna that he had nowhere to stay and was hungry. Rutyna allowed the defendant to stay at his house for the night. The house is in Craigmore. The defendant arrived about 15 minutes later. Rutyna and the defendant sat out in the rear shed playing video games. Rutyna and Lloyd’s three small children were inside their house asleep. Rhiannon Lloyd returned home a few hours later. She came out to the shed and saw the defendant and Rutyna playing video games. She went to bed around 2am. Rutyna states no alcohol or drugs were consumed that evening. Rutyna observed that the defendant was not his normal self. He was talking about random things, such as that he believed everyone he knew was going to get a million dollars. At about 3.30-4am Rutyna left the defendant in the shed and went inside the house to bed. The following morning around 10am Brock Rutyna’s aunt, Cherie Rutyna, and Amy Nightingale arrived at the house. Nightingale has no fixed address and couch surfs at various friends around the northern suburbs. Cherie attended to assist taking Brock and Rhiannon’s children to day care. Nightingale went to the rear shed which is where the defendant was located. She introduced herself to the defendant as Aims. He introduced himself as Will. She started having a conversation with the defendant about the Freemasons. She observed the defendant to put down an ice pipe when she walked into the shed. He then offered her some to smoke which she did. Soon after the defendant and Nightingale left to go to her friend Ben Essex’s home. The defendant gave Nightingale the keys to his car to drive. During the car ride the defendant offered for Nightingale to keep his car.
They arrived at Ben Essex’s home at Whites Road Elizabeth. They went inside. They all smoked more ice. Soon after nightingale [sic] noticed that the defendant starting to breathe heavily. He became agitated and started talking about random things. Essex noticed the defendant had started to cry and then stated “I’ve got to go man, I’ve got to go”. Nightingale and the defendant left in his car. She took him for a drive to calm him down. She took him to another friends’ house, Dave (David Peters). They consumed more ice at Peters’ premises. The defendant started breathing heavily again. Peters noticed he was talking in what appeared to be two different voices. The defendant started to dry reach [sic] and then went outside and threw up. They were only at Peters’ house for 15 minutes and then left in the defendant’s car. They went for a drive. Nightingale describes the defendant as “wigging out”. He stated he wanted to listen to Rock and Roll. She told the defendant she knew a mate show [sic] loves Rock and Roll and that they could go there. That mate was the deceased, Nathan Clark.
[25]Abilify is the commercial brand name for aripiprazole; TS 14.
Submissions on the first issue
It is common ground, supported by the forensic psychiatric opinions, that Mr Delany was psychotic at the time of the conduct. Further, it is common ground, and I accept, that there were three potential “causes” of this psychotic state: (i) an acute relapse of schizophrenia alone; (ii) the high dosage of methylamphetamine, consumed immediately before the conduct, alone; and (iii) an exacerbation of a relapse of schizophrenia, caused by the methylamphetamine ingestion. If (i) were to be found, the matter would be dealt with pursuant to subsection 269C(1) (Part 8A). If (ii) or (iii) were to be found, the matter would be dealt with pursuant to subsection 269C(2) (Part 8) subject to the power in subsection 269C(3).
The prosecution submits that this case falls within subsection 269C(2).[26]
The prosecution does not contend that the defendant’s intoxication was causative of his suffering from schizophrenia. The evidence demonstrates that that condition was pre-existing. What the prosecution submits is that on 19 August 2019 the defendant’s self-induced intoxication was a substantial cause of him suffering a psychotic episode of the intensity revealed in the evidence of those who interacted with him, as manifest in the conduct subject of the charges and in him not knowing that such conduct, his conduct, was wrong.
The prosecution does not dispute that the defendant was relapsing. However, the prosecution points to the defendant’s previous pattern of relapse as described by Drs Raeside and Haeney in their reports as indicative of the intensity of relapse to be expected. The difference between those past relapses and the conduct subject of the offending can be explained in no small part by the amount of methylamphetamine that the defendant had consumed - a high dose capable in itself, Professor White said, of causing psychoses.
All three experts agree that the level of methylamphetamine in the defendant’s blood would have impacted upon his underlying illness. Whether you describe that contribution as aggravating, exacerbating, or an aggravating contributing factor, to borrow from Dr Raeside’s fire analogy, petrol, being the methylamphetamine and the quantity of methylamphetamine, was thrown on the fire resulting in an increase in the rapidity of the defendant’s decline in mental health and substantial increase in intensity of the resultant psychosis.
Whilst there can be no doubt that the defendant was relapsing, having regard to the amount of methylamphetamine he smoked on 19 August 2019 and to the fact that the concentration of methylamphetamine in his blood would have peaked right about the time of his offending, it is more likely than not that his self-induced intoxication was a substantial cause of the intensity of his psychosis resulting in his offending.
[26] Prosecution submissions on s269C(2) of the Criminal Law Consolidation Act 1935 at [25]-[28].
The defence contends that the prosecution has not proven on the balance of probabilities that the mental impairment from which Mr Delany was suffering at the time of the conduct was substantially caused by self-induced intoxication:[27]
In other words, the effect of the psychiatric opinion is that, but for the mental illness suffered by Mr Delany, it is unlikely that the offending conduct would have occurred. When previously under the influence of methamphetamine there is no evidence that Mr Delany had engaged in violent behaviour. On one occasion when apparently suffering from his mental illness it was reported by family friend Reece Firmager that Mr Delany had punched him causing him a black eye. The evidence is therefore that the only past episode of violence occurred as a result of the mental illness.
…
In the absence of expert evidence that the mental impairment was substantially caused by intoxication by methamphetamine, the Director has not established that fact on the balance of probabilities.
Both psychiatrists agreed that persons suffering from schizophrenia are known to self-medicate using methamphetamine and other illicit substances and that their mental illness can prevent them from recognising that taking such substances can exacerbate their illness and effect their capacity to make a decision as to the taking of such substances. Dr Haeney noted that Mr Delany had said that the only way he could feel normal was to use methamphetamine.
In this way it can be seen that the illness that caused the mental impairment also had a role in causing Mr Delany to take the methamphetamine which in turned [sic] caused the exacerbation or aggravation of his underlying psychosis. In that sense the taking of illicit substances is itself a part of the mental illness. Just as paranoia, delusions and hallucinations are symptoms of schizophrenia, in this case illicit drug use can itself be seen as a symptom of such a condition, as well as a factor which aggravates it. This is one reason why the psychiatrists in this case have reached the conclusion that Mr Delany’s mental impairment was not substantially caused by methamphetamine intoxication.
(Footnotes omitted)
[27] Written submissions of the defendant at [40], [43]-[45].
Consideration
I will start my consideration of the cause of Mr Delany’s mental incompetence at the time of the conduct by stating and noting, with respect, my acceptance of eight preliminary observations[28] concerning the enquiry under subsection 269C(2) advanced by the prosecution.[29]
[28] My acceptance of proposition (iv) is qualified as explained later.
[29] Prosecution submissions on s269C(2) of the Criminal Law Consolidation Act 1935 at [6].
i.first, intoxication is defined in s 269A(1) as meaning a temporary disorder, abnormality or impairment of the mind that results from consumption or administration of a drug (which, in turn, is defined in s 269A(1) to mean alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning)).
ii.second, intoxication resulting from the recreational use of a drug is to be regarded as self-induced; s 269A(2a).
iii.third, what constitutes a mental impairment is defined in s 269A(1) as including a mental illness, an intellectual disability, or a disability or impairment of the mind resulting from senility and has been held to include intoxication.[30]
iv.fourth, the subject of the second inquiry [that is, the enquiry under subsection 269C(2)] is the cause or causes of the mental impairment operating at the time of the conduct alleged to give rise to the offence and in consequence of which the defendant is mentally incompetent,[31] and whether the cause or a substantial cause of that mental impairment was self-induced intoxication.
v.fifth, the prohibition contained in s 269C(2) only operates if the court is satisfied that it is more likely than not the case that self-induced intoxication was a substantial cause of the mental impairment operating at the time of the conduct alleged to give rise to the offence.
vi.sixth, the existence of a mental impairment resulting in any one of the prescribed incapacities, and whether or not that impairment was substantially caused by self‑induced intoxication, are questions of fact for the jury or the judge as the case may be.[32]
vii.seventh, it is not necessary that self-induced intoxication be the sole or primary cause of the mental impairment.[33] [Quotations from Question of Law Reserved (No 1 of 2021) omitted].
viii.eighth, the question of fact to be answered by the court and subject of the second inquiry will usually be answered with the assistance of expert opinion, but notwithstanding such opinion, the question is always one for the court to answer.[34]
(Emphasis in original)
Without finally deciding, I will accept proposition (iv) for the purposes of the present matter. It appears to follow from the obiter dictum of the Chief Justice cited in the footnote. However, no reasons in support of this analysis were provided by his Honour.
[30] As to intoxication amounting to a mental impairment, see Question of Law Reserved (No 1 of 2021) [2021] SASCA 148 at [23]-[24], [27]-[31] (Kourakis CJ), [217] (Livesey JA).
[31] Question of Law Reserved (No 1 of 2021) [2021] SASCA 148 at [4] (Kourakis CJ), [89] (Livesey JA).
[32] Question of Law Reserved (No 1 of 2021) [2021] SASCA 148 at [36] (Kourakis CJ).
[33] Question of Law Reserved (No 1 of 2021) [2021] SASCA 148 at [32] (Kourakis CJ), [89] (Livesey JA).
[34] Question of Law Reserved (No 1 of 2021) [2021] SASCA 148 at [36] (Kourakis CJ), [90], [194] (Livesey JA).

Notwithstanding that the facts of the present matter occasioned the reference to the Court of Appeal in Question of Law Reserved (No 1 of 2021), I have not found that case to be of particular assistance. With respect, the questions were not difficult and the inevitable answers less so. Other questions concerning the interaction of subsections 269C(2) and (3) raise more difficulties, some of which were canvassed, although not conclusively, in each of the three Court of Appeal judgments.
Before addressing the issue of whether Mr Delany’s mental impairment at the time of the conduct was substantially caused by self-induced intoxication,[35] one must ascertain the nature of the mental impairment to which subsections 269C(2) and (3) are directed. This raises a question of statutory construction. Once that has been identified, the next question to arise is whether or not that mental impairment was substantially caused by self-induced intoxication.
[35] Subsection 269C(2).
Whilst this latter question requires content to be given to the word “substantially”, it begs another a priori question. Other than where self-induced intoxication is shown to have been the sole cause (in which case “substantially” will have been made out, although otiose) the concept of “substantially caused” connotes more than one cause, in which case the a priori question becomes was self-induced intoxication a cause, that is, one of two or more causes of the mental impairment. Only if the answer to this a priori question is yes does one go on to ask whether or not the mental impairment was substantially caused thereby.
A fundamental difficulty arising in this case and, I apprehend, that will arise in all such cases, is that each of the protagonists: counsel; the forensic psychiatrists who gave evidence; and myself, routinely use the same language – “substantially caused by” – as the statute requires. However, it cannot be known whether or not all or any of the protagonists agree on the content or meaning of the language used. This makes it particularly difficult when coming to assess and give weight to the expert evidence, bearing in mind that, whilst the ultimate question (“substantially caused by”) rests with the Court, where expert evidence of the nature that is before me, including expressions of professional opinion directly answering the ultimate question, is concerned, such evidence should be accorded respect and given significant weight. Of course, the notion of substantial cause is not unfamiliar in the criminal law.[36]
[36] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 411, 441, R v McCarthy [2015] SASCFC 177; (2015) 124 SASR 190 at [335]-[338].
A similar concern arises in connection with other suggested language used either synonymously or by way of contrast such as: primarily, significantly, appreciably and de minimis.
As it happens, I take the view that these are all different words with different meanings; none serves to elucidate the meaning of “substantially” but would only replace it with another open-textured word still requiring an evaluative judgment. “Primary” or “primarily caused by” clearly is not apposite.[37] In my view de minimis, a term favoured by the prosecution during submissions in the sense of any cause that is not de minimis will satisfy, is not and cannot be a substitute. The Latin tag denotes something that is immaterial, too small to be meaningful or taken into consideration. The full expression is de minimis non curat lex: the law does not govern or refuses to consider trifling things. The notion of a de minimis cause borders on being an oxymoron. If something is a cause, it cannot be trifling. If only de minimis causes were to be excluded, no cause would be excluded. Whatever “substantially” in the present context embraces, they are matters of substance, with heft, not trifles.
[37] Question of Law Reserved (No 1 of 2021) [2021] SASCA 148 at [90] (Livesey JA).
I return to the question of what constitutes the mental impairment for the purpose of subsection 269C(2). On a literal reading, the “mental impairment” at the time of the conduct referred to in subsection 269C(2) is the mental impairment that has been found to have given rise to the finding of mental incompetence pursuant to subsection 269C(1). Subsection 269C(1) asks two questions: did the defendant suffer from a mental impairment (as defined in section 269A) at the time of the conduct; and was one of the matters in paragraphs (a), (b) or (c) a consequence of that mental impairment?
On this literal approach, the “mental impairment” in subsections 269C(1) and (2) is the same state of mind and is separate from the consequences in paragraphs (a), (b) and (c) one of which must be established in order to allow a finding of mentally incompetent. However, this would appear to be inconsistent with the approach inherent in the prosecution’s proposition (iv) above and the Chief Justice’s obiter dictum in Question of Law Reserved (No 1 of 2021)[38] earlier referred to.
[38] [2021] SASCA 148 at [4].
On the literal approach outlined above, the question for Mr Delany becomes whether his psychotic state at the time of the conduct, simpliciter, was substantially caused by self-induced intoxication. On the approach consistent with the Chief Justice’s obiter dictum, the question becomes whether Mr Delany’s psychotic state at the time, being one of such a nature or extent that as a consequence he did not know that his conduct was wrong, was substantially caused by self-induced intoxication. These would appear to be different questions, although it may be that I have merely stated the same question in two different forms: perhaps the psychotic state at the time of the conduct, simpliciter, cannot be distinguished from the psychotic state being such that, as a consequence, Mr Delany did not know that his conduct was wrong.
In this case it is unnecessary to finally decide which of the two constructions is correct and judicial comity suggests that for the present I should adopt the approach of the Chief Justice; it is more likely to be what the legislature intended, if not what it has said.
However, on any analysis, the prosecution has not satisfied its burden of proving on the balance of probabilities (that is, more likely than not) that Mr Delany’s mental impairment at the time of the conduct, however described, was caused, let alone substantially caused, by self-induced intoxication.
The expert evidence supports the following, fundamentally relevant, propositions. First, it is not possible to distinguish between a psychotic state caused by schizophrenia and one caused by self-induced intoxication simply by analysing the patient’s mental state and consequential conduct at any given time. Second, whilst methylamphetamine consumption can cause either a relapse of a psychotic state or an exacerbation of a psychotic state (“fuel on the fire”) in a person suffering from schizophrenia, there is no way of knowing whether either has happened, as opposed to the schizophrenia having simply run its course or been triggered by other factors, in any particular case.
To prove its case, the prosecution must propound an inference based on the wider circumstances. In this case, the prosecution relies in particular on the fact that Mr Delany’s conduct occurred very soon after, and on the day, he had consumed what, on the basis of Professor White’s count back evidence, was a substantial quantity of methylamphetamine. However, Mr Delany had last taken his medication three months previously. Prior to being medicated, he had experienced psychotic episodes. Again on the basis of Professor White’s analysis, he was essentially a person suffering from schizophrenia with a history of psychotic episodes who was unmedicated.
The prosecution has the unenviable task of demonstrating that the point along the spectrum of psychotic behaviour where Mr Delany crossed the line, such that his psychotic symptoms brought about his conduct and his not knowing that it was wrong, had been caused in part by the methylamphetamine. This can be the case according to the expert evidence but has it been proved to be so in Mr Delany’s case?
In my view, the expert evidence and the evidence of Mr Delany’s conduct prior to and leading up to the conduct is not sufficient to prove, on balance, that Mr Delany’s mental impairment at the time of the conduct (however described) would not have subsisted in the absence of the methylamphetamine. In other words, it cannot be said, on balance, that he would not have suffered a psychotic episode of sufficient intensity to cause him to act as he did and not to know that his conduct was wrong, in any event. The methylamphetamine may have contributed to the outcome or it may not have. That is as far as the evidence goes.
I do not suggest this of the prosecution, but I have been conscious of the need with an enquiry of this type to avoid post hoc ergo propter hoc reasoning.
If I am incorrect, and the better finding were to be that the prosecution has proved, on balance, that Mr Delany’s mental impairment was (substantially) caused by self-induced intoxication, I would, in that event, exercise the power available pursuant to subsection 269C(3) to deal with Mr Delany under Part 8A rather than Part 8 of the Act. This disposition of the matter was agreed to during argument by both prosecution and defence. The prosecution’s concession here was clearly justified. The parties have identified a number of factors that support this conclusion.
The second issue – section 269C(3)
The defence argues that this case, where Mr Delany consumed methylamphetamine when he was already psychotic, can be distinguished from the case of “a defendant who is rational and not psychotic, and who only becomes psychotic as a result of consuming a drug”.[39] The prosecution highlights that Mr Delany has no prior convictions for violence.[40] Both parties attribute Mr Delany’s drug use and non-compliance with medication to a lack of insight into their effects.[41] The prosecution contends that “this is not a case of ‘dutch courage’ or of a defendant who knows or has demonstrated a propensity to violence under the influence of drink or drugs and being non-compliant with his medication”.[42] Furthermore, there is substantial support in the evidence that Mr Delany’s extant schizophrenia was itself a contributing factor to his decision to consume methylamphetamine on the day. It is an unfortunate term but one well understood by legal and medical professionals who work in this area, that many who suffer mental illness seek to “self-medicate” with illicit drugs. The mental illness contributes to the lack of insight that leads to drug taking. As such, a person’s culpability for drug taking and their conduct whilst drug affected can be lessened.
[39] Defence written submissions section 269C(3) Criminal Law Consolidation Act 1935 (SA) at [15].
[40] Prosecution submissions on s269C(3) of the Criminal Law Consolidation Act 1935 at [10].
[41] Prosecution submissions on s269C(3) of the Criminal Law Consolidation Act 1935 at [11]; Defence written submissions section 269C(3) Criminal Law Consolidation Act 1935 (SA) at [14].
[42] Prosecution submissions on s269C(3) of the Criminal Law Consolidation Act 1935 at [11].
Both parties submit that it would be in the interests of justice for Mr Delany to be dealt with under Part 8A. It would serve him and, in particular, the community better if he was able to receive treatment and rehabilitation through the forensic mental health service whilst under supervision for the rest of his life.
Under Part 8, and because of Mr Delany’s level of intoxication, it is most unlikely that he would be convicted of murder. Much more likely would be a conviction for manslaughter with a penalty of imprisonment for a term of only some years. He would not receive the same level of treatment, and at the end of his term he would be released into the community, still suffering from schizophrenia and without compulsory supervision and treatment by the mental health authorities.
In deciding that Mr Delany should, in any event, be dealt with in accordance with Part 8A, I have taken into account the matters in paragraphs (a), (b) and (c) of subsection 269C(3). As far as paragraph (c) is concerned, this issue is to be considered in the context of a legislative intention that, in the usual case, a person with a mental impairment who is found mentally incompetent to commit a criminal offence should be treated therapeutically and not punitively. It is within this framework that the question of whether to treat such a person whose mental impairment was substantially caused by self-induced intoxication in accordance with Part 8A would affect public confidence in the administration of justice, is to be considered. I am satisfied that in Mr Delany’s case, properly informed, the public’s confidence would not be diminished but to the contrary, enhanced.
Conclusion
For the reasons given above, I am not satisfied that subsections 269C(2) and (3) have been engaged. I enter verdicts that Mr Delany is not guilty of each of the charged offences on the basis that, at the time of the relevant conduct, he was mentally incompetent to have committed the offences. He is to be subject to supervision in accordance with Part 8A of the Act.
Both parties have submitted that if such a finding were to be made, it would not be appropriate for consideration to be given at this stage to the release of Mr Delany into the community under supervision and in accordance with conditions of licence. I agree. As such, there is no good reason to order the provision of further psychiatric reports to assist with determining the proper disposition of the matter. At present and for the foreseeable future, Mr Delany is under the care of Dr Haeney in a secure forensic psychiatric institution. With reference to the charge of murder, I am obliged to fix a limiting term of life and I do so. I direct that Mr Delany continue to be detained in a secure forensic psychiatric institution until further order.
I also need to fix a limiting term with respect to all of the other charged offences: aggravated causing harm with intent to cause harm; assault causing harm; aggravated serious criminal trespass in a place of residence; and aggravated assault. This limiting term will operate wholly concurrently with the limiting term of life applicable to the murder charge. Before fixing this limiting term and entering formal orders, I will hear any victim impact statements that are to be read and any further submissions counsel may wish to make.