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 determined by a Judge sitting without a jury.[1]
[1] Section 269B of the Criminal Law Consolidation Act 1935 (SA).
On 3 November 2020, I received evidence relied on by the parties and heard from counsel for the Director of Public Prosecutions and counsel for Mr Lado on both issues. It was their joint submission that mental incompetence had been established and Mr Lado conceded the objective element. Nevertheless, I wished to further review the evidence and I reserved my decision.
Legislative scheme
Part 8A of the Act provides for a scheme for the detention or release on licence of defendants who suffer from mental impairment such that, as a consequence, they have been acquitted of a criminal offence. Part 8A has been recently amended[2] in a number of substantive and procedural respects which amendments commenced operation on various dates during and after September 2017.
[2] Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (No 19 of 2017).
Section 269C was substantively amended and now provides as follows.
269C – Mental competence
(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
Note—
Paragraph (b) adopts the test as stated and excludes from consideration whether the defendant could reason with a moderate degree of sense and composure as set out in R v Porter (1936) 55 CLR 182.
(c)     is totally unable to control the conduct.
(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.
(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 definition of “mental impairment” as provided for in subsection 269A(1) is now in these terms:
Mental impairment includes –
(a) a mental illness; or
(b)an intellectual disability; or
(c)a disability or impairment of the mind resulting from senility,
In order to satisfy the requirement in paragraph (b) of subsection 269C(1), it is no longer sufficient to reach a finding that the person in question at the time of the alleged conduct in question, by reason of a mental impairment as defined, could not reason with a moderate degree of sense and composure that the conduct in question was wrong having regard to the everyday standards of reasonable people.[3] Paragraph (b) and the drafting “Note” make it clear that this aspect of the test is as stated in that paragraph.
[3] The King v Porter [1933] HCA 1; (1933) 55 CLR 182. The amendment to Part 8A in this respect has effected a substantive change.
At the hearing on 3 November 2020, I proceeded pursuant to section 269F of the Act to hear from the parties on the question of Mr Lado’s mental competence first before proceeding to hear from the parties as to whether or not the objective element had been established. Following the reservation of my decisions, I considered and came to a final conclusion as to mental competence first before considering and coming to a final conclusion on the question of the objective element.
Mental competence
As earlier indicated, counsel for the Director of Public Prosecutions conceded that Mr Lado was mentally incompetent at the time of the conduct the subject of the charged offence and both parties agreed that an investigation into his mental competence to commit the offence of attempted murder could be dispensed with pursuant to paragraph (a) of subsection 269FA(5) of the Act. Nevertheless, I have now reviewed the evidence bearing on this issue. In addition to lay person and police witness statements, the materials before the Court included reports from two experienced forensic psychiatrists; one by Dr Amisha Jayawant dated 6 April 2020 and one by Mr Lado’s current treating psychiatrist, Dr Pei Lim, dated 16 September 2020.
Both reports presented a comprehensive investigation into and analysis of Mr Lado’s mental state as at the time of the conduct in question. Both confirmed that Mr Lado suffers from paranoid schizophrenia, characterised by persecutory and bizarre delusions, auditory hallucinations, delusions of reference and thought disorder, undiagnosed as at the time he engaged in the conduct in question. Schizophrenia is a recognised mental illness falling within the definition of mental impairment as provided for in subsection 269A(1) and, as such, satisfies the requirement in the chapeau to section 269C that Mr Lado was, at the time, “suffering from a mental impairment”.
I do not stay to summarise the factual bases relied upon by Drs Jayawant and Lim in support of their analyses and ultimate opinions. I am satisfied that their ultimate opinions are soundly based in the evidence that was before them.
Dr Jayawant concluded as follows.
At the time of the incident that led to the charge, I believe Mr Lado was experiencing psychosis, namely a primary psychotic disorder, which was later diagnosed as Schizophrenia. On the day of the incident, Mr Lado seemed to make links between various benign stimuli such as his conversation with his mother and stepfather, the interactions between his brother and stepbrother, the videos online, associating the hairstyles of rappers with killing, and the online conversations he was having. He was fearful about the safety of his brother and also worried about being “jumped on” by his family. At some stage during the day, it led to a realisation that he needed to kill his stepbrother, Gabriel. His explanations suggest this was delusionally driven. For example, he heard his parents telling him to hurt Gabriel because he was “creeping”, had “a vibe”, and that it had something to do with Gabriel being the tallest. I do not believe his behaviour was influenced by substance intoxication. This is supported by the toxicology report which was negative for alcohol and illicit substances. As described above, the persistence of psychotic symptoms for almost a year after the incident, while Mr Lado was abstinent from illicit substances and receiving treatment, makes drug-induced psychosis an unlikely diagnosis.
. . . .
However, his ability to reason whether the conduct was wrong, as perceived by reasonable people, was impaired. He was concerned about the safety of his brother, and his psychotic state exacerbated the fear that Gabriel would hurt to his brother or him if he did not kill Gabriel first. As such, I believe Mr Lado fulfils criteria for S269C(1)(b).
. . . .
In summary, I believe Mr Lado did not know his conduct was wrong, that is, he could not reason about whether the conduct, as perceived by reasonable people, was wrong. Therefore, I believe he has a mental incompetence defence available for this matter.
Dr Lim, Mr Lado’s treating psychiatrist, concluded as follows.
Based on all of the above, I believe that Mr Lado was suffering from an undiagnosed and untreated mental illness, namely Paranoid Schizophrenia at the time of the alleged offence. Paranoid Schizophrenia is considered a mental illness within the definition of mental impairment in Section 269A of the Criminal Law Consolidation Act.
Mr Lado knew the nature and quality of his conduct. He knew that stabbing the victim with a knife could result in death and waited until the victim was asleep to enhance his chances of success. This level of premeditation is not inconsistent with psychosis.
By all accounts, Mr Lado did not have prior conflicts with the victim. The violence was unprovoked and uncharacteristic of him. As described above, at the time of the alleged offence, he experienced a myriad of psychotic symptoms which distorted his thinking and caused him to lose touch with reality. His conduct was driven by a need to protect his younger brother, egged on by delusional inferences he was deriving from social media. Although he knew the legal ramifications of his actions, he was undeterred by incarceration due to his delusion that he would be safe from the toxic “air” in prison. As a result of Mr Lado’s delusional thinking about the victim, he did not know that his conduct was wrong in that he could not reason about whether the conduct, as perceived by reasonable people, was wrong. I would therefore support a mental impairment defence based on this limb of the Act.
Section 269D of the Act provides for a presumption of mental competence. A person’s mental competence to commit an offence is to be presumed unless, following an investigation in accordance with the requirements of the Act, the person is found to have been mentally incompetent to commit the offence. The onus of demonstrating mental incompetence falls on the person claiming the defence and is to be satisfied on a balance of probabilities.
Having reviewed the evidentiary materials gathered by the Director of Public Prosecutions including the two expert psychiatric reports just referred to, I am satisfied on the balance of probabilities that, at the time of the incident the subject of the charge, Mr Lado was suffering from a mental impairment, namely a mental illness within subsection 269A(1), and that as a consequence, he did not know that his conduct was wrong within the criterion in section 269C(1)(b). For these reasons, I am satisfied that the Director’s concession was properly made and that Mr Lado was mentally incompetent to commit the offence of attempted murder at the time of his unlawful conduct.
Objective element of the offence
Having made the finding as to mental incompetence in accordance with the procedure provided for in section 269FA, I then must determine in accordance with the procedure set out in section 269FB whether or not the objective element of the offence of attempted murder had been established. The onus rests with the prosecution to establish the objective element and to do so beyond reasonable doubt.
In R v BS,[4] Lovell J was called on to identify the objective element or elements of attempted murder. I set out his Honour’s reasoning in full, with which I respectfully agree.
[4] [2020] SASC 138 at [6]-[9].
The offence of attempted murder is established by ss 11 and 270A of the CLCA. The elements of the offence are:
1the accused intended to kill the victim;
2the accused attempted to execute that intention to kill in the sense that the accused did an act or a series of acts which were immediately directed towards fulfilling that intention; and
3the act or series of acts were done without lawful excuse.
Section 269A(1) of the CLCA defines an objective element of an offence as an element of an offence that is not a subjective element. A subjective element of an offence is defined in the same section as meaning voluntariness, intention, knowledge or some other mental state that is an element of the offence. Having regard to these definitions, the intention to kill (element 1) is a subjective element and I am to exclude this element from my consideration.
Further, whether the act or series of acts were done without lawful excuse (element 3), that is, where there is a justification or excuse such as self-defence, provocation and duress that would otherwise relieve a person of a guilty verdict, does not form part of my investigation into the objective elements, as assessment of those matters includes the state of mind of an accused.
The objective element of attempted murder is to be found in the second element. The second element, however, contains two premises. First, that there is an act or a series of acts (physical acts) and secondly, that act or acts are directed towards the fulfilling of the subjective intention, namely an intent to kill. However, I am not to have regard to any subjective intention. As Hinton J stated in R v Paauwe:
… the objective elements of the offence of attempted murder are contained in the second of the elements as stated above, namely, the commission of an act or a series of acts which were immediately directed towards fulfilling the first element. An act or a series of acts which are immediately directed towards fulfilling the first element are those that are more than mere preparation to commit the offence and are sufficiently proximate to the completion of the offence such that it may be said that the accused has actually embarked on the commission of the offence.
[Footnotes omitted]
At the hearing on 3 November 2020, counsel for the Director identified the witness statements that the Director relied upon as relevant to the question of whether it had been established beyond reasonable doubt that Mr Lado committed the objective element for the offence of attempted murder. Those witness statements were as follows:
·Gabriel Zingoyake dated 28 April 2019;
·Elizabeth John Taban dated 17 April 2019, 11 May 2019 and 23 October 2019;
·Anthony Erineo Zengoyake dated 17 April 2019 and 5 October 2019;
·Costatino Zingoyake dated 17 April 2019;
·Daryl Drury dated 10 June 2020 and 27 October 2019;
·Shannon Green dated 15 May 2019;
·Ashlee Renae Carlaw dated 9 June 2019;
·Peter Curt Bautz dated 4 July 2019;
·Christine Calvert dated 23 September 2019;
·Joanne Leslie Sanderson dated 29 April 2019;
·Bayley Hill dated 14 May 2019;
·James Savalaro dated 3 May 2019; and
·Interview of Lago Lado dated 11 May 2019.
Mr Lado, both personally to the police and through his counsel in Court, has admitted the physical actions perpetrated against his step brother as earlier briefly summarised. There is nothing in the prosecution witness statements to cast doubt on that concession and much that is consistent with or supportive of it. On my review of the evidence, I am satisfied that the objective element has been established. Mr Lado engaged in an act or series of acts immediately directed towards an intention to kill and which were more than mere preparation to commit the offence of murder and sufficiently proximate to the completion of such an offence.
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.