R v Lado - [2020] SASC 223

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v LADO
Criminal Trial by Judge Alone
[2020] SASC 223
Decision of The Honourable Justice Nicholson
13 November 2020
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPTED MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
The defendant was charged with the attempted murder of his step brother. He pleaded not guilty by reason of mental incompetence.
The prosecution conceded that the defendant was mentally incompetent at the time of the conduct the subject of the charged offence. The defendant and prosecution requested by agreement that the Court record a finding that the objective element of the offence of attempted murder is established.
The defendant elected for both issues to be determined by a Judge sitting without a jury. The Court proceeded pursuant to section 269F of the Criminal Law Consolidation Act 1935 (SA) and determined first the issue of mental competence. The Court considered all relevant witness statements and forensic psychiatric reports provided by the parties.
Held:
1.      on the balance of probabilities, at the time of the incident the subject of the charge, the defendant was suffering from a mental impairment, namely a mental illness, and as a consequence, did not know that his conduct was wrong;
2.      beyond reasonable doubt, the objective element of attempted murder has been established;
3.      the defendant is not guilty of the offence of attempted murder on the grounds of mental incompetence; and
4.      the defendant is liable to supervision subject to a limiting term to be determined.
Criminal Law Consolidation Act 1935 (SA) s 269A, s 269B, s 269C, s 269D, s 269F, s 269FA, s 269FB, s 269O, s 269Q, s 269R, s 269T, Pt 8A; Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (SA), referred to.

R v LADO
[2020] SASC 223
Criminal
NICHOLSON J.
Introduction

Wani Philip Samson Lado (Mr Lado) was charged on Information with the attempted murder of his step brother, Gabriel Erineo Zingoyake. The offence is alleged to have been committed on 17 April 2019.
At approximately 4.30 am that day, Mr Lado took a knife from the kitchen of the house in which he and his step brother were living and went into his step brother’s bedroom. Mr Lado started to strangle the complainant with his hand around the neck. During the struggle, the complainant was stabbed in the chest, hand and eye. The mother of Mr Lado and the father of the complainant heard screams for help, entered the room and pulled Mr Lado away from the complainant.
Mr Lado has admitted his actions. However, on 3 November 2020, he pleaded not guilty to attempted murder by reason of mental incompetence. Through his counsel, Mr Lado elected to have both the issue of mental competence and the issue of whether or not the objective element for the offence of attempted murder has been established by the prosecution to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lado

Details

AGLC: R v Lado [2020] SASC 223
Case: [2020] SASC 223
Decision Date: 13 November 2020

CaseChat Overview and Summary

In the case of R v Lado, the defendant, Mr Lado, was charged with the offence of attempted murder for unlawfully attacking his stepbrother. The prosecution and defence jointly requested the court to establish a finding that the objective element of the offence was met. The case came before a South Australian court which exercised jurisdiction over the matter.

The court was required to address two primary legal issues. First, whether Mr Lado was mentally competent to commit the offence of attempted murder at the time of the attack, and second, if the objective element of the attempted murder offence had been established. The defence of mental incompetence was raised, which required the court to examine the defendant's mental state at the relevant time.

The court found that Mr Lado was mentally incompetent to commit the offence of attempted murder at the time of the attack, thereby absolving him of criminal liability for the offence. The court declared Mr Lado liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA) for a limiting term to be determined. An order committing Mr Lado to detention was made, with the direction for reports to be prepared and obtained as required by the Act. Mr Lado's detention in the forensic psychiatric institution, James Nash House, was noted.

In summary, the court found Mr Lado not guilty of attempted murder by reason of mental incompetence, and ordered his detention and supervision. The court will hear submissions from the parties on an appropriate limiting term before determining any future release conditions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

The prosecution and the defence, by agreement, have asked the Court to record a finding pursuant to subsection 269FB(2) that the objective element of the offence is established. I make that finding.Conclusion I record the following findings by reference to section 269F of the Criminal Law Consolidation Act 1935 (the Act).(i)That Mr Lado was mentally incompetent to commit the offence of attempted murder at the time he unlawfully attacked his step brother; and(ii)That the objective element of the offence of attempted murder has been established.As a consequence, I find Mr Lado not guilty of the offence of attempted murder by reason of mental incompetence. I declare Mr Lado to be liable to supervision under Part 8A of the Act for a limiting term to be determined pursuant to section 269O(2) of the Act. I also make an order committing Mr Lado to detention pursuant to section 269O(1)(b)(i) of the Act. I note that reports as required by sections 269Q and 269R will need to be prepared and that the Director will arrange for these. I direct that a report under section 269T is to be obtained. Mr Lado is presently detained in the forensic psychiatric institution, James Nash House. In the first instance, I will need to hear submissions from the parties on the issue of an appropriate limiting term. Thereafter, it will be a matter for further determination as to whether, and if so the extent to which, Mr Lado might in the future be released from or permitted periodic release from James Nash House in accordance with conditions of licence.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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