R v Male

Case [2020] SASC 98

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v MALE

Criminal Trial by Judge Alone

[2020] SASC 98

Judgment of The Honourable Justice Peek

11 June 2020

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPTED MURDER

CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT

On 29 May 2018, the accused placed a large amount of Diazepam and Promethazine in chocolate custard and gave it to her 7 year old daughter to eat, which she did. She was charged with the alternative offences of Attempted Murder (Count 1) and Aggravated Causing Harm with Intent to Cause Harm (Count 2). The accused pleaded not guilty and elected for trial by judge alone.

Prior to trial, the accused raised the defence of mental incompetence and an inquiry into her mental competence was ordered. The trial of the objective elements, was held first.

Held:

1. The objective elements of Count 1 and Count 2 are established beyond reasonable doubt.

Britten v Alpogut [1987] VR 929; Nicholson v The Queen (1994) 14 Tas R 351; R v Borinelli [1962] SASR 214; R v De Silva [2007] QCA 301, R v Irwin [2006] SASC 90; R v Reid [2004] SASC 221; discussed.

The trial as to mental incompetence was then held.

Held

1. The accused was mentally incompetent to commit either alternative offence.

2. The accused is not guilty of either alternative offence by reason of her mental incompetence and is declared liable to supervision under Division 4 Subdivision 2 of the CLC Act.

Criminal Law Consolidation Act 1935 (SA) Part 8A, referred to.

R v MALE
[2020] SASC 98

Criminal: Trial by Judge Alone

Peek J:

  1. Ms Kelly Vera Male (the accused) is charged on an Information dated 16 March 2020 with the following two (alternative) offences:

    First Count

    Statement of Offence

    Attempted Murder. (Sections 11 and 270A of the Criminal Law Consolidation Act, 1935).

    Particulars of Offence

    Kelly Vera Male on the 29th day of May 2018 at Woodside, attempted to murder Amelia Ruth Male.

    This is a “qualifying offence” within the meaning and for the purposes of section 44 of the Children and Young People (Safety) Act 2017.

    In the alternative to Count 1, Kelly Vera Male is further charged with the following offence:

    Second Count

    Statement of Offence

    Aggravated Causing Harm with Intent to Cause Harm. (Section 24(1) of the Criminal Law Consolidation Act, 1935).

    Particulars of Offence

    Kelly Vera Male on the 29th day of May 2018 at Woodside, caused harm to Amelia Ruth Male, intending to cause her harm.

    It is further alleged that Kelly Vera Male committed the offence knowing that Amelia Ruth Male was a child of whom she has custody as a parent or guardian.

    It is further alleged that Kelly Vera Male committed the offence knowing that Amelia Ruth Male was under the age…

Continue reading R v Male

Sign in free to access the full text

Details
AGLC
R v Male [2020] SASC 98
Case
[2020] SASC 98
Decision Date

CaseChat Overview and Summary

In the matter of R v Male, the defendant was charged with the offence of attempted murder under the Criminal Law Consolidation Act 1935 (SA). The case involved the administration of a large quantity of Diazepam mixed in chocolate custard to the defendant's daughter, Amelia, with the intention of causing her death. The defendant, who had a history of mental health issues, claimed that she was not competent to form the requisite intent to commit murder. The case was heard by a judge sitting alone, without a jury.

The primary legal issue before the court was whether the defendant had the requisite mens rea for the offence of attempted murder, given her mental state at the time of the alleged offence. The court had to consider the evidence of the defendant's mental health and capacity to form the necessary intent for attempted murder, as well as the objective elements of the offence.

The court found that the defendant had the requisite mens rea for the offence of attempted murder. The court accepted the evidence of the defendant's admissions to medical staff at the Royal Adelaide Hospital, in which she confessed to crushing up and feeding Diazepam tablets to Amelia with the intention of causing her death. The court also found that the objective elements of the offence of attempted murder had been established, as the defendant had deliberately administered a large quantity of Diazepam to Amelia with the intention of causing her death.

The court rejected the defendant's defence of insanity, finding that she was competent to form the requisite intent for the offence of attempted murder. The court found that the defendant's mental health issues did not impair her capacity to form the necessary intent for the offence, and that she was aware of the wrongfulness of her actions.

The court found the defendant guilty of the offence of attempted murder and ordered her to be detained in a mental health facility until she was no longer a danger to herself or others. The court also made orders for the defendant to undergo psychiatric treatment and for her to be subject to supervision and monitoring upon her release from the mental health facility.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

A large amount of written material was received including some agreed facts. I heard oral evidence from the following police and expert witnesses (in order of appearance): Crime Scene Officer Brevet Sergeant Watkins, Detective Brevet Sergeant Brumpton, Detective Brevet Sergeant Simmonds, Senior Constable Perry, Mr Jason McLoughlin (paramedic) and Professor Jason White. I accept their qualifications and that all were honest and helpful in giving their evidence. I also heard detailed evidence from Mr Kieran Ball, the husband of the accused. I also accept him as honest and helpful in giving his evidence.Background facts I will refer to aspects of the evidence of various of the witnesses in due course but it is not necessary to give a detailed summary of the evidence of each witness. In considering the evidence, I will refer to the administration of Diazepam mixed in chocolate custard to the alleged victim, Amelia (an agreed fact) and the lead up to it as “the subject incident”. Having considered all of the evidence, I make the following findings. The accused was born in 1980 in Adelaide and grew up in South Australia. In 2001, the accused was involved in a serious car accident and suffered serious injuries to her abdominal area such that she was eventually required to have a large part of her bowel surgically removed (in 2016). The accused met her first husband, Mr Jarrod Male, in 2005 and they later married. During the course of that marriage the accused had multiple miscarriages and an ectopic pregnancy. She later gave birth to Amelia Ruth Male (Amelia) on 21 October 2010. On 5 May 2013, Jarrod Male died of carcinoma of the bowel. Following his death, the accused and Amelia lived for a time with the accused’s mother, Ms Heather Evans. In about October 2013, the accused commenced a relationship with Mr Kieran Ball and they later married on 26 March 2016. Mr Ball assumed the role of step father to Amelia and performed normal parental duties. They and Amelia had commenced to live together at Balhannah and later moved to Nairne Road, Woodside (the Woodside premises), where they were living as at 29 May 2018. The relationship between Mr Ball and the accused generally The relationship between Mr Ball and the accused was volatile. It is unnecessary to go into detail except to mention two matters. The first matter has relevance in that it again surfaced in discussion between them in the immediate lead up to the subject incident. It was that when they were living at Balhannah, Mr Ball received numerous text messages from an unrecognised phone number (‘the Balhannah text messages’) wherein the unknown sender claimed to have seen him in the Barossa valley and proposed that they meet. Mr Ball showed the messages to the accused but she appeared to be indifferent to the matter. Eventually, Mr Ball confronted the accused about his suspicion that she was responsible for the text messages, which resulted in an argument between them. It was only much later, in circumstances referred to below, that the accused was to admit to being responsible for the sending of the text messages.[1] [1] Discussed below at paragraphs [19] to [21].

Evidence

Evidence Before The Court

The prosecution submitted that the fact that an objectively large quantity of deleterious drug was deliberately administered to Amelia is sufficient to establish the objective elements of attempted murder. Nevertheless, the prosecution adduced a substantial body of evidence confirmatory of the objective elements.The evidence of Mr Kieran Ball Mr Ball gave evidence that on 27 May 2018 (while the accused was still in the FMC), he found at the Woodside premises a letter in the accused’s handwriting, addressed to him (being the third and fourth pages of exhibit P20 and referred to as ‘Communication Three’). It contained the following passage:I can’t make everything better for you. No matter what it all comes down to, I’m being the problem. Nothing is easy for me. It never has been. Every time something goes wrong it always comes back to me.- I told the police about drugs.- I had one the night before in our house.- I gave this guy your number & he is messaging you.- I buy a phone & message you pretending I’m some girl you met.- The races.If I could switch life off I would but I can’t. You have your drugs. I have mine.Instead of coming together all this shit is tearing us apart. Me apart. I can’t be torn anymore. There will be nothing to be put back. I DID NOT DOB You in to the cops. I could have had Ame taken from me. Do you think I mad!I’m shutting down now. You won’t hear another word out of me. Goodnight. Mr Ball gave evidence that he interpreted the passages “I gave this guy your number & he is messaging you” and “I buy a phone & message you pretending I’m some girl you met” to be a reference to the Balhannah text messages; and that he believed that they amounted to the accused confessing to having been responsible for sending those text messages, or at least directing that they be sent. On 28 May 2018, the in-patient treatment was revoked and the accused was discharged. Mr Ball gave evidence that he collected her from the FMC at around 3.00 pm that day and that they had a heated argument about this letter ‘Communication Three’ in the car on the way home from the FMC. As a result of this argument, the accused got out of the car at Oakbank and Mr Ball drove the car home. The accused walked home.The pill crusher Mr Ball gave evidence that upon returning home, he happened to find inside a box a pill crusher he had not previously seen. He gave the following evidence of what happened following that discovery:Q. What did you do once you’d seen that item.A. I went down and spoke to Kelly in the bedroom and asked her why she bought a pill crusher.Q. Which bedroom was that.A. That would be the main bedroom.Q. What did you say to her.A. I asked her ‘Why have you bought this pill crusher’.Q. What was her response.A. Crushing tablets for children or, yeah, crushing pills.Q. Did she say who for.A. She just said children, for kids.Q. Did you say anything in response to that.A. Well, I told her ‘I don’t know why you need a pill crusher because Amelia’s not sick’.Q. What happened after that.A. After that I sort of - the conversation fizzled out I think and I cooked dinner, I believe.

Decision

Reasons for decision

I conclude that while it may be possible to hypothesise a factual scenario in which a question may arise in the future as to whether the actus reus of attempted murder as discussed in the common law authorities is the same as the objective elements of the offence of attempted murder within s 269G of Part 8A of the CLC Act, that question did not arise for decision in R v Reid and it does not arise here. Even if one were to ask as to whether the actions of the accused in Reid or in the present case were “equivocal”, the answer would be resoundingly in the negative in both cases, having regard to the strength of the totality of the evidence. Conclusion concerning the objective elements of attempted murder Having regard to all of the evidence, and for all of the above reasons, I make the following findings beyond reasonable doubt. First, that on 29 May 2018, at some time between 4.30 pm and 5.51 pm at the Woodside premises, the accused mixed (deliberately and not accidentally) a large quantity of the drug Diazepam into a bowl of custard; gave it to Amelia to consume; and Amelia did consume it. On the basis of the expert evidence which I accept (and adopting the interpretation most favourable to the accused), Amelia’s resultant peak blood Diazepam concentration was at least 2.7mg/L, from which it is to be inferred that Amelia consumed between 11 and 21 (inclusive) tablets (5 milligram) of Diazepam. (Such a range is consistent with the admission the accused made to Dr Chesterman on 30 May, that she “ingested and fed” 20 Diazepam tablets to Amelia; it is also consistent with the evidence of Mr McLoughlin who said that the accused told him she had given Amelia “15 Valium, 15 mils of Phenergan and some Panadol”). Secondly, on the basis of the expert evidence of Professor White, the concentration of Diazepam resulting from a therapeutic dose of Diazepam is generally under 0.6 mg/L and that the present dosage constituted an overdose of at least 4½ times a therapeutic dose. Thirdly, on the basis of the expert evidence of Professor White, that overdoses of Diazepam can potentially cause death, with children and the elderly being most at risk. Fourthly, the acts done by the accused were not merely preparatory to the crime of murder but were sufficiently proximate to the commission of that crime such as to constitute the actus reus of an attempt to murder at common law and under the CLC Act. I therefore conclude that the objective elements of the offence of attempted murder have been established beyond reasonable doubt.The alternative charge of aggravated causing harm with intent to cause harm Although I have concluded that the objective elements of the offence of attempted murder have been established beyond reasonable doubt, it is not possible to dismiss the lesser alternative charge from the case at this initial stage because one potential outcome is that, if the accused were found to be mentally competent, it might occur at the later trial of the subjective elements that the required mental intent for attempted murder is not established whereas the required mental intent for the lesser alternative charge is established.

Ratio Decidendi

Legal Principle Established

The prosecutor submitted that the 29 May 2018 text messages show that, in the eyes of the accused, things had become hopeless, a conclusion rendering it all the more likely that she wished to “escape” the marriage and for her and Amelia to be reunited with her first husband (Jarrod Male deceased) in heaven.[4] [4] As to which wish, see below.The administration of Diazepam to Amelia by the accused It was an agreed fact that the accused placed Diazepam and Promethazine in chocolate custard which she then gave to Amelia to eat (and she did so). The prosecutor submitted that these were deliberate acts directed to enticing Amelia to consume the drugs and noted that Mr Ball gave evidence that chocolate custard was not an item that was purchased for the family every week. He said:Q. With what sort of frequency would it be purchased.A. Every now and then sort of. Yeah, once every month or two, you know what I mean. It wasn’t, yeah -Q. Was it something that would be more purchased as a bit of a special treat.A. Yeah, I think it was a special - yeah, sort of as a treat or if it was going to go with something else, a dessert, some dessert, yeah. I mention in passing that there was a series of questions put to several prosecution witnesses in cross-examination drawing attention to an apparent brown stain that may have been consistent with chocolate custard at the bottom on the fridge in the kitchen. No witness was able to provide an explanation as to when or how such a staining (or spillage) occurred, and the matter was not addressed by the defence in closing submissions.The accused’s admissions made at the Royal Adelaide Hospital On 29 May 2018, the accused was taken by ambulance to the Royal Adelaide Hospital (RAH), arriving at 8.03 pm. Mr Jason McLoughlin, a paramedic who had attended at the Woodside premises at 6.02 pm, testified that just prior to departing for the RAH with Amelia he had heard words to the effect that “the accused wanted to go to sleep with her daughter and never wake up” but he could not recall whether it was the accused or someone else, who had said those words to him. Because of that uncertain provenance I will disregard that evidence. In the two days that followed, 30 and 31 May 2018, the accused made two very important sets of admissions to medical staff at the hospital as follows.Admissions to Dr Chesterman Dr Catherine Chesterman attended upon the accused at the RAH on 30 May, 1 June, 4 June , 8 June, 13 June and 18 June of 2018. On 30 May 2018, the accused admitted to Dr Chesterman that she had crushed up about 20 Diazepam tablets that she “ingested and fed” to Amelia in an attempt to “cuddle up in bed and float off together and be reunited with her first husband”. The phrase “ingested and fed to the alleged victim” does not specify the amounts of drug consumed by the accused and fed to Amelia respectively but the accused did tell Dr Chesterman that she thought the number of tablets used would be enough to kill both herself and Amelia. The accused also told Dr Chesterman that she had made a pasta bake for Ball’s dinner on 29 May 2018 so that he would not wake her and would not notice the overdose until the following morning.