R v Gray

[2008] SADC 127

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v GRAY

Criminal Trial by Judge Alone

[2008] SADC 127

Ruling of His Honour Judge Rice

2 October 2008

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ACCUSED UNFIT TO PLEAD OR INCAPABLE DURING TRIAL

Accused charged with two offences of Endangering Life - mentally unfit to stand trial - consideration of objective elements involved possible defence of self-defence (and therefore lawful excuse) - whether part of objective elements or a subjective matter.

Held: s 269MB(3) precludes a consideration of self-defence.

Criminal Law Consolidation Act 1935 ss 29(1), Part 8A, 269A, 269MA(5), and 269MB, referred to.
R v Parenzee [2008] SASC 245; R v Gillard [2008] SASC 38; Question of Law Reserved (No 1 of 1997) 70 SASR 251, applied.

R v GRAY
[2008] SADC 127

The charges

1. The accused is charged with two counts of Endangering Life pursuant to s 29(1) of the Criminal Law Consolidation Act 1935.  The particulars of both counts are as follows:

   Michael John Gray on the 18th day of April 2007 at Campbelltown, without lawful excuse, drove a motor vehicle at Michael Payne, and intending to endanger Michael Payne’s life or being recklessly indifferent as to whether Michael Payne’s life was endangered.

2. Although each charge is in the same terms, they relate to two separate and distinct actions by Mr Gray in the driving of his car at the victim.  The details are referred to below.

3. Counsel for the accused, Ms Waite, has submitted that the Court record a finding that the accused is mentally unfit to stand trial and liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935. 

4. Both counsel concede that the accused was mentally unfit to stand trial.  There is no dispute as to the objective elements of the alleged offences save and except an issue of self-defence to which I will return.

5. The accused elected for a trial of the objective elements of the alleged offences by Judge alone.

   Background of the charges

6. The factual material for this matter has largely been agreed and the trial proceeded on evidence provided in the declarations of various witnesses, including a statement from the victim.

7. The main declarations relied upon are:

   1.Michael Payne dated 24 August 2007 – the victim.

   2.David Game dated 15 August 2007 – prepared a medical report relating to the victim compiled from the Royal Adelaide Hospital case notes.

   3.Kevin Dean Styles dated 12 August 2007 – witness to the events the subject of these charges.

   4.Trevor Sharples dated 18 April 2007 – Constable of Police who attended the Norwood Police Station on the morning of Wednesday 18 April 2007 and spoke with Mr Gray.

   5.Rowen Male dated 27 August 2007 – present with Constable Sharples at the Norwood Police Station when Mr Gray was spoken to and searched, a large kitchen knife being found in his jeans pocket.

   6.Marcus Wells Cooper dated 27 August 2007 – attended at the scene.

   7.Detective Sergeant Seneca dated 12 August 2007 – principal investigation officer – attempted to speak with Mr Gray.

   8.Christopher Andrew Graham dated 19 July 2007 – examined Mr Gray’s vehicle.

8. I commence by giving a brief summary of the facts.

9. The accused was invited to the unit of Michael Payne on the evening of Tuesday, 17 April 2007 for social drinks with another man, Kevin Styles.  The three men had previously become acquaintances whilst staying at Palm Lodge mental health facility.

10. Over the course of the night the accused, Mr Payne and Mr Styles consumed several alcoholic drinks on the front porch and the conversation flowed into controversial issues such as religion and paedophilia. 

11. At some point in the evening, the accused, having seen a photograph of Mr Payne’s nine year old daughter, told Mr Payne that be believed she was “going to be a great fuck when she gets older”.  Upset and enraged by this comment, Mr Payne threatened and chased the accused with a large kitchen knife yelling, “I am going to fucking stab you”.

12. Fearing for his safety, the accused ran to his car, a red Ford Festiva hatch, which was parked across the road in front of the unit.  Upon starting his car, the accused proceeded to accelerate towards Mr Payne at which point Mr Payne threw the knife into his front yard.  The accused then struck Mr Payne with the vehicle knocking him to the ground so that he was lying in the gutter.  The accused reversed the vehicle and accelerated towards Mr Payne a second time, pinning him between the vehicle and the gutter, and then drove off.

13. At around 3.00 a.m. the following morning on Wednesday, 18 April, the accused attended the Norwood Police Station in a red Ford Festiva wanting to report an assault.  Police also attended the scene at Mr Payne’s unit and Mr Payne was taken by ambulance to the Royal Adelaide Hospital where he was subsequently treated for several trauma injuries, most notably fractures of the left leg.

    The mental condition

14. The psychiatric report of Dr Asokan details the mental condition of the accused and whether he is mentally unfit to stand trial.

15. According to the report, the accused has been suffering from Paranoid Schizophrenia since the age of 18 and has been admitted to mental institutions on numerous occasions.  The accused is required to take antipsychotic medication to control his mental disorder and will require long-term future treatment.

16. The accused cannot recall particular details about the offence, could not understand why or when he was arrested and could not rationally respond to the allegations on which the charges are based.  He claims he was in a “catatonic” state for weeks after the offence.

17. Constable Sharples and Probationary Constable Male reported that the accused was extremely unsettled at the Norwood Police Station on the Wednesday morning, either staring vacantly into space or rambling various details about paedophilia and stabbing people.  He was found carrying a large kitchen bread knife in his jeans pocket, claiming that it was for protection against Mr Payne.

18. With respect to the night in question, the accused admits to his comment about Mr Payne’s daughter and that My Payne came at him with a knife, although he claims that these two events occurred days apart.  According to Dr Asokan, at the time of the offence the accused was “experiencing psychotic symptoms” and “unable to appreciate the wrongfulness of his actions or to control his impulses.”

19. The accused suffers from delusions, is unable to develop rational thought and does not understand “about the roles of the officers of the court and about the concept of a guilty or non-guilty” plea.  He is, therefore, unable to exercise his procedural rights or follow any course of proceedings.  Dr Asokan concluded that the accused is not able to instruct counsel or participate in the legal process and, therefore, is not fit to plead.

    Conclusion

20. I am satisfied that Dr Asokan’s report sufficiently covers the mental status of the accused and thus dispense with the need for any further investigations pursuant to s 269MA(5)(a) of the Criminal Law Consolidation Act 1935. 

21. I am further satisfied on Dr Asokan’s report that the accused is mentally unfit to stand trial and record a finding as such pursuant to s 269MA(5)(b) of the Criminal Law Consolidation Act 1935.

    The objective elements

22. As agreed, I need to consider the objective elements.  The objective elements that need to be proved beyond reasonable doubt for each charge are:

    1.that the accused was the person who drove the car at Mr Payne;

    2.that the accused knew the act of driving at Mr Payne was likely to endanger his life;

    3.that the accused intended to endanger Mr Payne’s life or was recklessly indifferent as to whether Mr Payne’s life was endangered;

    4.that those actions, in combination with the requisite knowledge and either of the stated mental elements, was without lawful excuse.

23. Both Mr Payne and Mr Styles knew the accused and could identify him as the driver of the vehicle.  The accused also identified himself to Constable Sharples and Probationary Constable Male at the Norwood Police Station after the incident, and they noted that the only car in the area was a small red vehicle parked approximately 20 yards away from the police station on Osmond Terrace. 

24. The report of Dr Game outlines the injuries sustained by Mr Payne.  Although none of Mr Payne’s injuries was in itself life threatening, there can be no doubt that the physical act of deliberately driving a motor vehicle at another with the intent to harm, is life threatening behaviour.  Indeed, had Mr Payne been struck in the face, rather than the leg, his injuries would have been far more severe, if not fatal.

25. In reaching a conclusion about the second element as to knowledge, I have applied the law as to the meaning of “likely” in accord with the decision of the majority in R v Parenzee[1]

    [1] [2008] SASC 245 per Doyle CJ (with whom Anderson J agreed on this point) at para 73.

26. Subject to the question of lawful excuse, I have no doubt that both charges are made out but on the basis of reckless indifference.

    Lawful excuse – self-defence

27. The issue of self-defence has been raised mainly in relation to the first count in that the accused was said to be in genuine fear for his life upon being chased by Mr Payne who was in possession of a large kitchen knife.

28. I do not question that the accused may have feared for his life at the time of the original incident, however, under subsec (3) of 269MB, “...the court is to exclude from consideration any question of whether the defendant’s conduct is defensible.”  “Defensible” is defined in s 269A(1) in that “a defendant’s conduct is to be regarded as defensible in proceedings under this Part if, on the trial of the offence to which the proceedings relate, a defence might be found to exist”.

29. The case of R v Gillard[2] considered the effect of the provisions under s 269MB.  However, that case dealt with s 269MB prior to its amendment in late 2000 whereby it provided that the court must record a finding that the objective elements are established if satisfied beyond reasonable doubt and that “there is, on the evidence before the court, no defence to the charge…”

    [2] [2008] SASC 38.

30. In Gillard, Justice Nyland considered Question of Law Reserved (No 1 of 1997)[3] in which a person found mentally unfit upon a charge of murder could not rely on the defence of self-defence because, as stated by Justice Duggan, “the state of mind which would attract the defence of self-defence is a subjective element of the offence for the purposes of Pt 8A” and therefore to be excluded.[4]  In accordance with Justice Duggan’s reasoning, Justice Nyland found that the defendant’s “state of mind or knowledge [was] irrelevant to the determination to be made on the trial on the objective facts.”[5]

    [3] 70 SASR 251.

    [4] Justice Duggan, Question of Law Reserved (No 1 of 1997) 70 SASR 251 at 262.

    [5] Justice Nyland R v Gillard [2008] SASC 38 at para 40.

31. As to s 269MB as it now stands, Justice Nyland considered that “the definition of a subjective element in s 269A is unaffected by the amendment and continues to exclude ‘voluntariness, intention, knowledge or some other mental state’ from the consideration on the trial of the objective facts.”[6]  I consider the amendments to s 269MB to clearly exclude the possibility of considering self‑defence in determining the objective elements of this offence.

    [6] Justice Nyland R v Gillard [2008] SASC 38 at para 42.

32. Regardless of s 269MB, on the facts of this case, I find that the acts of the accused are otherwise excessive and disproportionate to the immediate threat and a claim of self-defence would not succeed if the trial continued as normal.

    Conclusion

33. I find that the objective elements of each charge are made out.

34. The issue of self-defence is excluded by subsec (3) of 269MB.

35. I am satisfied, beyond reasonable doubt, that the objective elements of the offences are established. I declare the accused liable to supervision pursuant to s 269MB(2) of the Criminal Law Consolidation Act 1935.