R v Delany

Case [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

  1. 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…

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R v Delany [2022] SASC 125
Case
[2022] SASC 125
Decision Date

CaseChat Overview and Summary

In the matter of the Crown versus Delany, the defendant was charged with the murder of Nathan Clark, as well as other related offences. The case was heard in the Supreme Court of South Australia, where the defendant's mental state at the time of the offence was a significant issue. The central legal issues revolved around whether the defendant's conduct was substantially caused by self-induced intoxication and, if so, whether the court should exercise its discretion under subsection 269C(3) of the Criminal Law Consolidation Act 1935.

The court examined the evidence and submissions from both parties, focusing on the defendant's mental health history, his use of illicit substances, and the events leading up to the offence. The prosecution argued that the defendant's intoxication was a substantial cause of his mental impairment, while the defence contended that the mental illness itself was the primary cause, with the intoxication being a symptom or part of the illness. The court considered the definitions of intoxication and mental impairment, as well as the relevant statutory provisions. It also took into account the legislative intention to treat mentally impaired individuals therapeutically rather than punitively.

Ultimately, the court found that the defendant's mental impairment was not substantially caused by self-induced intoxication. The evidence suggested that the defendant's mental illness, rather than the intoxication, was the primary cause of his incompetence. The court emphasised that the defendant's illness had led him to self-medicate with methamphetamine, which in turn exacerbated his underlying psychosis. As such, the intoxication was seen as a symptom of the illness rather than its substantial cause.

Based on this finding, the court held that the defendant was not guilty of the charged offences due to his mental incompetence at the time of the conduct. The court ordered that the defendant be subject to supervision in accordance with Part 8A of the Act and fixed a limiting term of life for the murder charge, which would operate concurrently with the terms for the other offences. The court also noted that there was no need for further psychiatric reports or consideration of the defendant's release into the community at that stage.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 offendingThe 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

Decision

Reasons for decision

NICHOLSON J
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.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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).