R v Kakavand (No 2) - [2011] SASC 5

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v KAKAVAND (No 2)
Criminal Trial by Judge Alone
[2011] SASC 5
Judgment of The Honourable Justice Kelly
24 January 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES INVOLVING GRIEVOUS BODILY HARM OR SERIOUS INJURY
Trial by judge alone - accused pleaded not guilty to a charge of causing serious harm with intent to cause serious harm on the basis of mental incompetence to commit the offence - question of mental competence tried first under s 269F of the Criminal Law Consolidation Act 1935 (SA) - victim the accused's wife - accused suffered post-traumatic stress disorder related to imprisonment in Iran - accused found mentally competent - whether accused caused the victim serious harm - whether accused intended to cause the victim serious harm.
Held - Guilty - accused caused the victim serious harm - accused intended to cause the victim serious harm.
Criminal Law Consolidation Act 1935 (SA) s 23(1), referred to.

R v KAKAVAND (No 2)
[2011] SASC 5
Criminal: Trial by judge alone
KELLY J.
Introduction

On 21 December 2010, I ruled that the accused in this matter Ravanbakhsh Kakavand was mentally competent to commit the offence charged, namely aggravated causing serious harm with intent to cause serious harm. The trial of the accused then proceeded in the usual way.
Neither party called any further oral evidence at this stage of the trial. By consent the prosecution tendered a number of declarations. A summary of the declarations tendered is set out in Appendix A to this judgment. The prosecution also tendered all of the evidence taken at the hearing of the accused’s mental competence to commit the offence. That evidence included the reports of Dr Christopher Branson and Dr Craig Raeside and the accused’s evidence. The victim of the offence Ms Elnaz Adalat was not called by either party to give evidence at the trial. At this stage of the trial the accused elected not to give or call any further evidence. Both parties were content to rely on the evidence already presented at the hearing into the issue of the accused’s mental competence to commit the offence.
The accused is charged with the offence of aggravated causing serious harm with intent to cause serious harm contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA). The prosecution pleaded two circumstances of aggravation, that the accused used an offensive weapon namely a piece of timber while committing the offence and further, that the victim Ms Elnaz Adalat was the accused’s spouse.
The prosecution must prove beyond reasonable doubt three matters: the first, that the accused caused harm to Ms Adalat, the second, that the harm caused to Ms Adalat was serious harm, and the third, that at the time when the harm was caused to Ms Adalat the accused intended to cause her serious harm. The accused has denied that he ever intended to cause his wife any harm, let alone serious harm. It is fair to say that the accused’s state of mind at the relevant time is the critical issue at this stage of the trial. I must be satisfied beyond reasonable doubt that at the time when the accused struck Ms Adalat that he had the necessary intention.
The evidence of the civilian witnesses is critical to the prosecution case against the accused. Mr Darren McCormack, the first person to arrive on the scene, came upon the accused’s utility on the verge of a ditch by the side of River Road, Hahndorf. He observed both the driver’s and the rear driver’s door fully open. He did not observe any serious damage to the vehicle but saw the accused hunched over on the ground at the rear of the vehicle. He observed the accused raise both arms over his head while holding what appeared to be a block of wood about three feet long. At that time he heard a female who was lying on the ground screaming as if she was in severe pain. He then saw the accused strike the woman on the head with the lump of wood about eight times. He immediately got out of his vehicle and attempted to stop him.
Two other men came to the assistance of Mr McCormack. One of them, Mr Michael O’Rourke first observed the accused standing behind the utility in what he described as a wood chopping stance. The accused appeared to be chopping something on the ground but Mr O’Rourke said he was moving his arms much faster than a person would chop wood. When he came closer to the scene he saw the accused stop chopping and kneel down on the side of the road. He knelt very low with his hands in front of him. As Mr O’Rourke’s vehicle passed the accused on the side of the road he saw blood and then he could see a person lying on the ground with blood all over the hair and face. The next thing he heard was one of the other witnesses at the scene yelling out “stop”. He got of his vehicle and as he walked back towards the accused he saw him holding a lump of wood standing in a cricket stance looking directly at him. The accused then turned towards the female who was still lying on the ground and raised the wood over his head before hitting it down in the direction of the female. Mr O’Rourke then heard a sickening sound which he described as the sound of an impact with a wet piece of flesh. He then went to the assistance of Mr McCormack and brought the accused to the ground.
The third person who came to the assistance of the victim that morning was Mr Hamilton Walker. As soon as he realised that the accused was hitting a human being on the ground he also stopped and assisted Mr O’Rourke and Mr McCormack to restrain the man. He described the accused as “in a rage and he seemed to have tunnel vision on killing whoever was on the ground”.
Although the accused resisted the three men he said nothing at all to them at any stage.
The victim of the assault Ms Adalat was admitted to the Royal Adelaide Hospital. Her injuries included an undisplaced fracture of the occipital bone, lacerations to her face, arms, wrist and hands, and bruising to the abdomen. The lacerations were repaired surgically in hospital and Ms Adalat remained in the neurosurgery unit of the hospital for about 10 days until she was discharged on 11 December 2009. Whilst she was observed in the hospital she appeared to be suffering from anxiety and nightmares suggestive of a post‑traumatic stress reaction. As I have said earlier there was no evidence from Ms Adalat and there is no further evidence about her recovery or what has happened since her discharge from hospital on 11 December 2009.
After his arrest at the roadside the accused was taken to the Mount Barker Police Station and interviewed by Detective Malcolm Williams. In that interview the accused denied hitting his wife. He told the police that prior to setting out on the drive up into the hills his wife was upset for some reason to do with her wanting the accused to sign a paper to sponsor her sister to come to Australia. Apart from admitting that immediately prior to the incident Ms Adalat had grabbed his hand as he drove along River Road the accused claimed not to have remembered anything except the Iranian secret police surrounding him and wanting to capture him.
The accused gave an account later to Dr Christopher Branson. Dr Branson was the court‑appointed psychiatrist who examined him in August 2010. The accused also gave evidence at the hearing of the issue of mental competence.
I discussed in my earlier reasons some important differences between the account which the accused gave to the police immediately after these events on 1 December 2009 and subsequent accounts which he gave to the psychiatrists and later to this Court. In his conversation with the police during the interview on 1 December 2009 and again in this Court the accused tended to repeat over and over the same things and at times his answers to specific questions were non‑responsive and at times rambling. I accept that to some extent this might be a reflection of the accused’s personality and his particular style of communication which at times is florid and tending towards the dramatic.
I accept also that the accused suffers from a serious post‑traumatic stress syndrome caused by his experiences whilst a prisoner in Iran. At the end of 2009 immediately prior to these events, the accused was under a great deal of stress. That stress was undoubtedly exacerbated by financial difficulties which he and his wife were experiencing around that time. Even though the accused was reluctant to concede the extent of the financial stress that he was experiencing in the days leading up to 1 December 2009, I am in no doubt that he was at that time in a very fragile psychological state as a consequence of these factors.
It can be inferred from the accused’s first statement to the police on the morning of 1 December 2009 that a disagreement between himself and his wife in the car over the issue of sponsorship papers concerning his wife’s sister caused the accused to lose his temper. It can also be inferred from the accused’s statement to the police on that day that when he and his wife left their family home in the morning the accused was already in an extremely fragile psychological state.
The accused’s subsequent attempts both to the psychiatrists and in this Court to distance himself from any disagreement with his wife at or about the time of the assault is a clear indication that the accused realises that any concession on his part that he was annoyed with his wife immediately prior to the assault would not assist his case. As I have said in my earlier reasons I have some reservations about the evidence given by the accused about his state of mind at the relevant time.
This is not to say that the accused might not have suffered a period of dissociation during the episode. The behaviour of the accused after the assault upon his wife, which behaviour was observed by others, does tend to support the conclusion that at some stage he did suffer a period of dissociation. If in fact he did suffer a period of dissociation it is likely that the episode commenced when the three civilian witnesses launched themselves upon him, bringing him to the ground and restraining him. Nevertheless, I do not consider it necessary to make any finding beyond reasonable doubt whether the accused did suffer a period of dissociation or what the cause of that dissociative state might have been, because I am satisfied from all of the evidence beyond reasonable doubt that any dissociative state suffered by the accused that day did not commence until after the accused had commenced the assault upon his wife on River Road.
The observations of the three civilian witnesses at the scene support a conclusion beyond reasonable doubt that at the time when the accused delivered the blows upon Ms Adalat he did so with the intention of causing her serious harm. He used a large piece of timber to hit his wife in the region of the head while she was lying on the ground. He did this a number of times with purposeful and deliberate actions described by the witnesses. The piece of timber which he used was in the back of the utility. That much can be inferred from the photographs.
The accused’s claim to have been in a state of dissociation at the relevant time believing at the time that he was being attacked by the Iranian secret police does not accord with the objective evidence of the witnesses at the scene. Despite the fact that the accused claimed to have been remonstrating with the Iranian secret police about his wife’s innocence, nevertheless it was she that the accused attacked. Furthermore despite the fact that he claimed to have been arguing and protesting with the Iranian secret police he did not utter a single word to any of the witnesses at the scene, nor was he heard to be uttering a single word at the time he was observed beating his wife.
As I have remarked earlier this is not to say that the accused did not at some stage later experience a period of dissociation whether as a result of intense anger or brought on by a flashback associated with post‑traumatic stress syndrome. However I am satisfied that at the time when the accused commenced the assault upon his wife outside the car his actions were deliberate and purposeful. The inference can be drawn from all of the evidence that the accused, already in a fragile psychological state that morning, simply lost his temper and his self control as a result of the disagreement in the car with his wife as they drove along River Road. In that state the accused intentionally set about beating his wife with the piece of timber.
Given the nature of the injuries suffered by Ms Adalat it follows that I am satisfied beyond reasonable doubt that the prosecution have proved each of the elements of the offence. Accordingly I find the accused guilty.
Appendix A:
Matthew Elliot Argent dated 4 December 2009
Jennifer Margaret Dunstan dated 21 April 2010
Dr Rumal Jayalath dated 7 April 2010
Paris Timothy Leslie dated 1 December 2009
Darren Andrew McCormack dated 1 December 2009
Michael Rory O’Rourke dated 4 December 2009
Hamilton Scott Walker dated 1 December 2009
Brian Lester Watkins dated 16 February 2010
Malcolm George Williams dated 4 April 2010
Booklet of photographs of the scene (P2)
Videotape of the accused’s arrest at the scene on 1 December 2009 (P3)
Videotape of the interview between Detective Williams and the accused at Mount Barker Police Station (P4)
Lump of wood retrieved at the scene (P5)
Booklet of photographs of Ms Elnaz Adalat taken on 5 December 2009 (P6)