R v Male
[2020] SASC 98
•11 June 2020
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 98Criminal: Trial by Judge Alone
Peek J:
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 of 12 years at the time of the offence.
The accused pleaded not guilty to both alternative charges and elected for trial by judge alone.
Prior to the trial, the defendant raised the defence of mental incompetence and the Court ordered pursuant to s 269WA of the Criminal Law Consolidation Act, 1935 (CLC Act) that reports be prepared by each of Dr Narain Nambiar and Dr Owen Haeney. Both reports produced in response to that order (the Nambiar report dated 8 March 2019 and the Haeney report dated 26 November 2019) positively support that defence.
Following a directions hearing on 12 March 2020, the case came on in Court on 16 March 2020 and, in accordance with the wishes of both parties, I ordered pursuant to s 269E of the CLC Act that a trial of the objective elements of the offences would be heard first.
PART A: THE TRIAL OF THE OBJECTIVE ELEMENTS
The trial of the objective elements of the offences commenced on 16 March 2020 and thereafter proceeded by reference to the procedure referred to in s 269G of the CLC Act and having regard to the requirement that this trial be kept separate from any subsequent trial of the mental competence of the defendant.
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].
The second matter is that in early 2018, being a few months prior to the subject incident, Mr Ball took some photographs of the accused when she was in a drunken state (‘the compromising photographs’) and sent them to some of his acquaintances. There was no sexual aspect whatever involved in this incident, but it was most regrettable and, I accept, was deeply regretted by Mr Ball. Unsurprisingly, it was a further cause for serious disharmony in their relationship.
Events leading up to the subject incident on 29 May 2018
The accused had worked at Aldgate Pharmacy between 2005 and 2008. She later returned to work at Aldgate Pharmacy in 2015 as a pharmacy assistant and was working in this position up to 29 May 2018.[2]
[2] During that period (in December 2016) the accused completed training in a course carried out by the Pharmacy Guild.
In the three months immediately prior to 29 May 2018, Mr Ball was Amelia’s primary caregiver as the accused was suffering from various medical problems.
On 10 May 2018, the accused witnessed a serious car accident in Norwood and, on that same day, she attended at Mount Barker Hospital and complained of feeling anxious, suffering chest pain and other symptoms consistent with Post Traumatic Distress Disorder (‘PTSD’). On 24 May 2018, an in-patient treatment order was made and the accused commenced treatment at the Flinders Medical Centre (FMC) pursuant to that order.
The prosecution case concerning the events of 27 and 28 May 2018 and the subject incident on 29 May 2018
The prosecutor submitted that the objective elements are largely if not entirely established by the agreed facts (contained in Exhibit P1) and particularly paragraph six which appears thus:
Some time between 4.30pm and 5.51pm on Tuesday 29 May 2018, at Nairne Road, Woodside, the accused placed Diazepam (commonly known as Valium) and Promethazine, into a bowl of chocolate custard which she gave to the alleged victim to consume. The alleged victim consumed the bowl of chocolate custard.
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.
While a pill crusher was not located by police during their search of the premises, there was no suggestion on cross examination that Mr Ball was lying about the existence of the pill crusher or that his account of the conversation that occurred in respect of it was not accurate. Having regard to all of the evidence, I find that he did see the pill crusher and did have the above conversation with the accused.
The triple zero call
Mr Ball formed the view that the accused may have given some drug to Amelia and therefore made a triple zero call at 5.51 pm on 29 May 2018. The audio recording of that call and an agreed transcript were received in evidence.[3]
[3] Exhibit P13.
Mr Ball told the operator, inter alia, that he believed that the accused had given something to Amelia and requested an ambulance. At various times during the call, a distressed voice and noises resembling someone banging on a door in the background can be heard. Mr Ball gave evidence that the voice was that of the accused and the noises were caused by her in evincing a high level of displeasure at Mr Ball’s efforts to prevent her from taking Amelia away. He gave evidence that during the call, the accused placed Amelia on the seat of her car and was looking for, but unable to find, her car keys; and that he retrieved Amelia from the car and parked his utility vehicle behind the roller door of the car garage so as to prevent the accused from driving off in her car. Mr Ball’s evidence was consistent with the triple zero recording and, like almost all of his evidence, was hardly disputed by defence counsel.
The prosecutor submitted that it is clear from the triple zero call that, upon being interrupted by Mr Ball, the accused appeared to be determined to carry out a plan and that this evidence confirms that the accused’s acts were much more than mere preparation.
Evidence found at the Woodside premises
There was a substantial amount of relevant evidence found at the Woodside premises by Mr Ball and investigating police officers.
Dinner for Mr Ball left in the oven and the note found on the kitchen bench
The accused left dinner for Mr Ball in the oven, accompanied by a note on the kitchen bench which read:
Dina is in the fridge Just needs warming through
Can you save some for Moo’s lunch.
The prosecutor submitted that, whilst on a superficial view the words “Can you save some for Moo’s lunch” may indicate that the accused envisaged that Amelia (Moo) would be alive on 30 May 2018, the note was in fact intended to divert Mr Ball’s attention so as to allow the accused to carry out her plan without being disturbed. As put by Ms Townsend:
… essentially ‘Dinner is prepared. You don’t need to interrupt us’, so not relevant to the question of did she intend to kill or not, but relevant to the objective question of the acts that she was planning to carry out and hoping to carry out in a concealed fashion so that her plan could be completed without interruption.
Having regard to the whole of the evidence, I accept that submission.
Letters written by the accused
The prosecution tendered four pages of photographs of documents seized by police officers as Exhibit P20. The first page was a letter handwritten by the accused and addressed to her sister Melinda Heyer (‘Communication One’). Mr Ball gave evidence that he believed it was found by the accused’s Aunty Janine but was not certain whether he became aware of it before or after 29 May 2018. It contained the following passage:
To my dearest Mel,
Firstly let me tell you that you are & have been an AMAZING little sister. But more importantly you have blossomed into one of the most naturally wonderful mothers I have ever seen. Stella is amazing, funny, caring child I have ever come across. You did that! You!
I guess by now you know we’re gone. It’s nothing you did. Don’t blame yourself! Please don’t.
The problem lies within me. I have got to a point that I can’t take life anymore. Life has sure rammed some shit down my throat, and now I’m full.
In Mrs Coles grade one class we were asked to bring in something special. Mum let me take this funny odd china urn looking thing. She made me promise I would look after it.
The prosecution submitted that the statement “I guess by now you know we’re gone” evinced an intention to kill both Amelia and herself and that the holding of such intention makes it the more likely that she did in fact carry out the acts alleged by the prosecution; and that this is so, even though it cannot be established precisely when the accused wrote that note.
The second page of exhibit P20 was ‘communication Two’ (of no present relevance) and the third and fourth pages together was ‘Communication Three’ which was found by Mr Ball on 28 May 2018 and has been referred to above.
The note found in the spare bedroom and the Will found on the kitchen bench
Senior Constable Perry gave evidence that on 30 May 2018, he and Detective Brevet Sergeant Brumpton, Detective Brevet Sergeant Simmonds and Crime Scene Officer Watkins arrived to search the Woodside premises at about 8.46 am.
Perry found a note at the bedhead in the spare bedroom (exhibit P11). He said that it was positioned “resting at the bedhead in a very obvious position. The writing on it was face-up so if you were to walk into the room and approach the bed itself you would certainly see the note”. The contents were as follows:
To day was a bad day,
I was hoping it would be so much better. A time to click 26 something came & canged [sic] my life. I don’t have much tolerance with the PTSD. I wish you could be kinder, gentler & more, more loving. No matter what was going on I am broken & all you think of is you. If things went differently today, being so fragile, we could have come together. Find someone else with no problems with kids. Be happy. A lot happened in my life that most people couldn’t cope with a hole life.
give me some room.
I know I’m at fault & sorry.
Kelly
The prosecutor submitted that the note should be construed as a sort of goodbye letter, particularly in the context of the other circumstances which included other documents found. Simmonds gave evidence that during that search he observed various documents relating to the accused, including a will, an advanced care directive and estate planning documents prepared by a law firm.
Text messages between Mr Ball and the accused on 29 May 2018
Exhibit P19 contains the following text messages between Mr Ball and the accused on 29 May 2018 (‘the 29 May text messages’):
Tuesday, 29 May 2018
Author
Time
Message
KM 8.55 am I really love u xxx
KB 8.59 am Love you too xxx
KM 12.09 pm Bub, I am really sorry. I am very ashamed and thats why I dont like talking or hearing about my suicide stuff. I am just trying to keep my-self together. I just want to feel safe, secure and loved at home. I hate the constant fighting. I want u to be my safe place. I need u to come to me for hugs.
Just look after me and every thing will be fine.
KB 12.16 pm I want that too darling. It just makes it hard when you lie to me about things. Why cant you tell me what you arr doing.. im here to help we are on the same team
KM 12.23 pm You dont have the best track record either
KB 12.23 pm With what?
KM 12.24 pm Lying
KB 12.24 pm What lying
KM 12.25 pm About the pics
KM 12.27 pm I thought we were on the same team to until that
KM 12.29 pm Obviously me saying sorry and how hard it has been hasn’t worked. Can u pick moo up at the bus please.
KB 12.29 pm Roghto
KM 12.40 pm This is going to end badly for us isn’t it. I did try to reach out to you with love. And I am asking for moo is because I had a bingle on my car today
KB 12.40 pm How bad?
KB 12.40 pm Cant we just wait and talk. Cant sort things out properly by msg.
KM unknown We r nicer to one another on text.
KM 2.39 pm Maybe we could go to sydey and u can order ur own lobster
KM 4.31 pm I loved u so much that I fot 3 text messages sent. U send 3 pics and its worse
KM 4.31 pm This is such a crappy life
KM 4.32 pm I love u so MUch and we are wasting our live
KB 4.32 pm 4 months ive paid for those fucking pics.
KB 4.32 pm If you couldn’t just get over it and let it go but you cant.
KM 4.36 pm O
KM unknown I am not strong enough …
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.
The prosecutor submitted that these admissions clearly confirm that the accused did perform a deliberate administration of a large quantity of a deleterious drug to Amelia. Further, the prosecutor submits that the admission concerning the pasta bake (together with the evidence that it was found in the oven with a note nearby on the kitchen bench) also supports the prosecution case that the accused intended to divert Mr Ball so that she could carry out her plan uninterrupted.
Admissions to Dr Fairbank
Dr Jared Fairbank deposed in an affidavit that at about 10.45 am on 31 May 2018 at the RAH, the accused stated to him, in the presence of Dr Samantha Burns, that she had taken an overdose and had given Diazepam to her daughter, Amelia; that she was able to obtain the drugs without a prescription because she worked as a pharmacy assistant; and that she wanted to die with her daughter so that they could be reunited with her late husband. Dr Burns also deposed in an affidavit that these admissions were made in her presence.
These admissions go to the objective elements of the charged offences in the same manner as the admissions to Dr Chesterman, but they also relate to another important confirmatory matter, the accused’s access to Diazepam and other drugs.
The accused’s access to Diazepam and other drugs
The prosecutor submits that there is a body of evidence from which, in the context of the other evidence in the case (including the finding of drugs at the Woodside premises on 29 and 30 May 2018), one can infer beyond reasonable doubt that the accused, without permission, took drugs from the Aldgate Pharmacy on 28 May 2018.
Medication taken from Aldgate Pharmacy on 28 May 2018
Mr Ball gave evidence that on 28 May at around 7 or 7.30pm, after Mr Ball, the accused and Amelia had eaten dinner, the accused left the house without notifying him; she was gone for about 40 minutes and upon her return was carrying a red coloured handbag. Mr Ball looked in the bag and noticed a number of pamphlets and a small container of tablets. The container did not have a prescription label affixed to it; rather, it was a plain white container without a name of any patient or doctor affixed to it. The fact that no prescription label was affixed to the container of tablets was significant to Mr Ball because it caused him to be suspicious and to confront the accused about how she had obtained the container. Mr Ball’s evidence of that confrontation is as follows:
Q. And what did you ask her.
A. I asked her where she’d been and then asked her if she had taken anything from the pharmacy, because she said she went to the pharmacy to get stuff for work, as in the pamphlets, and to start with she denied having anything else in there apart from the work material.
Q. Did you ask her whether she’d taken anything else.
A. I asked her to show me the bag.
Q. And what happened then.
A. She said - she said ‘Fine, I will’, and then I quickly went sort of ahead of her, or with her, and opened the bag and said ‘What are these?’ and then she said -
Q. Just before we come to that, was there a reason you went ahead of her.
A. I didn’t want her to get ahead of me and hide the tablets which I’d already seen and knew were there.
Q. Did you get back to the bag first.
A. Yep.
Q. And what happened then.
A. And then I said ‘What are these?’ and she said - she admitted that ‘Fine, I’ve taken some tablets from work’. She said that she needed them for when she was struggling and low, something to that effect, yeah.
Q. Did she say anything about the fact that she hadn’t originally told you that she had the tablets.
A. She said ‘Fine, I lied’.
Q. What did you say when she said to you that she did have them and she’d taken them, she needed them for when she wasn’t good.
A. I told her that she’s doing the wrong thing and ‘You shouldn’t be stealing from work’ and she’ll lose her job, yeah.
Q. Did she say anything in response to that.
A. Not that I can recall. She would’ve said something but I just can’t recall exactly what it was.
Q. Did you say anything on the topic of the fact that you didn’t see any prescription label on the bottle.
A. Well, I just referred to ‘You shouldn’t be stealing from work’, regards to what was written on - yeah, obviously because her name wasn’t on there, otherwise if her name was on the bottle, I probably wouldn’t have said anything, I would’ve looked at her and said well that’s been prescribed to her and I probably would’ve let it go, because I know Kelly did take various medications throughout the time I’ve known her, so yeah.
Although a red handbag can be seen in the police photographs of the interior of the Woodside premises, none of the police witnesses at trial could recall searching it, and in fact Detective Simmonds and Detective Brumpton were positive that they did not.
The accused was employed at Aldgate Pharmacy at the relevant time. Mr Ball gave evidence that it is about a 15-minute drive from the Woodside premises.
Mr David Kuhn, an expert witness, stated that on 28 May 2018, the alarm system of Aldgate Pharmacy was disarmed at 7.08 pm and re-armed at 7.12 pm. I accept the prosecution submission that this would tend to indicate that whoever disarmed and re-armed the alarm system knew precisely what he or she wanted to accomplish within the pharmacy, and was able to do it in a short period of time. Mr Jack Hasanica (the owner of the pharmacy) and Wendy Honeybone (an employee there) depose in their respective affidavits that neither of them disarmed the alarm system on that evening.
I find that an entry of the Aldgate Pharmacy by the accused at 7.08 pm is consistent with Mr Ball’s evidence concerning the accused leaving home and later returning with the red coloured handbag, bearing in mind that the times he gave were approximations only. Having regard to all of the evidence, I find that the accused did take a quantity of drugs from the Aldgate Pharmacy between 7.08 pm and 7.12 pm on 28 May 2018.
Drugs seized from the RAH and the premises
Mr McLoughlin, the paramedic, testified that shortly after attending at the Woodside premises at 6.02 pm on 29 May 2018, he was involved in a disjointed conversation with the accused in an effort to obtain information as to what she had given to Amelia. Mr McLoughlin testified that during this conversation the accused (for whatever reason) was gathering personal effects by rummaging through containers and handbags. These personal effects included many different medications, which were in a large bowl. On cross-examination, Mr McLoughlin agreed that he looked in the bowl and searched through some of the medications, but he did not remove the bowl or any of the medications.
Later that evening, Mr Kenneth Hutchinson and Mr Paul Saward (also paramedics) arrived at the Woodside premises and took the accused to Woodside SAAS Station, arriving at about 7.30 pm. Mr Saward deposed that prior to leaving the Woodside premises he had received a bag containing packets of Amitriptyline, Panadol and Valium belonging to the accused.
Ms Jenna Laube, the attending paramedic on the later journey from the Woodside SAAS station to the RAH, deposed in her affidavit that Saward and Hutchinson had handed to her a bag full of assorted medications that had been with the accused. These medications were taken with the accused to the RAH and later seized by police (McDonald and Bray) at approximately 10.15 pm. Detective Brevet Sergeant Brumpton later compiled a summary of the items seized, tendered at trial as Exhibit P6. The medications seized at the RAH on 29 May 2018 and tendered at trial were as follows:
-3 boxes of Amitriptyline of 50 x 50 mg tablets, prescribed to the accused on 24/5/18 by Dr F Livesey (1 box had 11 tablets missing, 1 box was empty and the other box had 8 tablets missing);[5]
-1 box of Amitriptyline 50 x 50 mg tablets, prescribed by Dr Andrew Sykes on 16/4/18 (4 tablets remaining);[6]
-1 box of 50 Phenergan tablets (17 tablets remaining);[7]
-1 box of Paracetamol Plus Codeine 20 x 500mg/15mg tablets (2 x 10 tablet blister packs in the box) and 2 x 10 tablet loose blister packs containing 6 tablets; 1 x 10 tablet blister pack of Panamax; and 1 x 10 tablet blister pack of Paracetamol Plus Codeine (with 1 tablet remaining).[8]
[5] Exhibit P14.
[6] Exhibit P15.
[7] Exhibit P16.
[8] Exhibit P17.
As noted above, police searches at the Woodside premises located various relevant documents. Also found were various items of medication which were also seized and tendered at trial thus:
-1 box of Phenergan 50 x 25 mg tablets in blister packs (3 tablets missing) and 1 box containing a 100ml bottle of liquid Phenergan (about ¾ full);[9]
-1 box of Nurofen Zavance containing a 12 tablet blister pack (8 tablets missing);[10] and
-1 box of APOHealth Paracetamol Pain Relief, 100 x tablets in 10 caplet blister packs (22 missing) and 2 x 12 tablet blister packs of Chemists Own Strong Pain Extra (8 missing).[11]
[9] Exhibit P7.
[10] Exhibit P8.
[11] Exhibit P9.
On 30 May 2018, Mr Ball also found a further small plastic bottle of Antenex tablets at the premises. He contacted the police and Simmonds collected the pills that same day; it was tendered at trial as Exhibit P10, being ‘1 plastic bottle of Antenex (Diazepam) 5 mg tablets prescribed to the accused by Dr Sykes on 7/3/18 (13 tablets remaining)’.
The prosecutor submitted that the significance of the above evidence was that the accused had ample access to Diazepam; that Diazepam was missing from various packaging; and it was an agreed fact that Diazepam was administered to the accused.
Amelia’s blood analysis results and the range of Diazepam administered
The report of Professor Jason White dated 18 February 2019 was tendered by consent.[12] It included the results of an analysis of a sample of Amelia’s blood (collected at 7.30 pm on 29 May 2018) as follows:
-Diazepam 2.7 mg/L;
-Nordiazepam approximately 0.34 mg/L;
-Temazepam approximately 0.13 mg/L;
-Promethazine approximately 0.004 mg/L.
[12] Exhibit P22.
A urine sample was also collected from Amelia at 10.16 am on 30 May 2018 and later analysis showed the presence of Diazepam, Nordiazepam, Temazepam, Oxazepam and Promethazine. Professor White gave evidence that such a urine sample shows only the presence or absence, but not the quantity, of certain drugs. It was also his evidence that the presence of Oxazepam in the urine sample of Amelia was likely a result of Diazepam having converted into Oxazepam.
Professor White’s evidence was that the Diazepam, Nordiazepam and Temazepam results were likely to have been attributable to the consumption of those drugs, although it was possible that the Temazepam reading was attributable to an additional drug. The Promethazine reading was a relatively low concentration and unlikely to have any significant effect; but it was possible for Promethazine to potentiate the overall effect of a drug such as Diazepam.
Professor White gave evidence that Diazepam is widely prescribed, mainly for the treatment of insomnia, but can also be prescribed for other purposes. It is sold under a number of brand names, including Valium. He gave evidence that Diazepam impairs balance and coordination. He agreed that if Amelia was described as appearing “drunk” or “intoxicated”, that that would be consistent with the effects of Diazepam.
Professor White testified that there are a small number of reported cases of death in otherwise reasonably healthy adults as a result of Diazepam consumption alone. He also stated that young children, such as Amelia, would potentially be more at risk of death as a result of Diazepam consumption due to their comparatively low tolerance to such drugs. He stated that one would never administer 75 mg of Diazepam to a seven-year-old child to see how they reacted to it, and that it was indeed unpredictable how they would react.
On cross examination, Professor White agreed that neither Diazepam nor Amitriptyline are “Schedule 8” drugs, which are dangerous drugs subject to stringent rules as to how they may be stored and dispensed. Further, he agreed that Diazepam overdoses having a fatal effect is rare and that the drug was indeed designed to be difficult to bring about death by overdose.
Professor White’s evidence was that the typical concentration of Diazepam in blood from a therapeutic dose would generally be under about 0.6 mg/L and that Amelia’s concentration of 2.7 mg/L indicated that a relatively high dose of the drug had been taken.
As to the likely time of ingestion of Diazepam, Professor White’s evidence was that the effects of Diazepam may appear as soon as 30 minutes after ingestion, and that peak concentration in the blood is usually reached around 90 minutes after ingestion, although taking food with it would slow the absorption process. Hence, Professor White estimated that Amelia’s ingestion of Diazepam could have been as early as 4.30 pm.
Professor White’s evidence was that when Amelia’s blood was taken at around 7.30 pm on 29 May 2018, it was likely that that was around the time of peak concentration. As to the relevance of the 2.7mg/L reading being the peak concentration, Professor White testified:
HIS HONOUR
Q. Can I ask you one question and counsel might want to ask something in consequence. In any event, I think you have basically told us that, for the reasons that you give in your evidence and in your report, you have proceeded on the assumption that the figure of 2.7 mg/l, milligrams per litre, of Diazepam was, in effect, the peak reading or the peak dose if you want to say.
A. Yes.
Q. And am I right in thinking, and this perhaps is obvious, but by proceeding in that way you are taking the most favourable approach to the question of how many tablets would likely have been given to the child.
A. Yes.
Q. In other words, by making that assumption, you are inevitably going to come out at the lowest possible number of tablets.
A. That’s correct.
Based upon the blood concentration of 2.7mg/L of Diazepam being assumed to be the peak concentration, Professor White considered that a range of between 11 and 21 (5 mg) tablets had been consumed by Amelia on 29 May 2018.
This range is consistent with the evidence of Mr McLoughlin (the paramedic) who testified that he had the following dialogue with the accused just prior to Amelia’s departure from the Woodside premises to be taken to hospital:
A. I said ‘Kelly, I need to know what you’ve given Amelia’.
Q. And did she provide you with some information about that.
A. Yep. She did.
Q. What did she tell you.
A. Well, she told me that she had given her 15 Valium, 15 mils of phenergan in liquid and some Panadol.
Mr McLoughlin described that the process of obtaining this information took about five minutes and involved repeatedly asking the accused the same question and getting her to maintain her focus. On cross examination, Mr McLoughlin accepted that the answer of “15 Valium, 15 mils of Phenergan and some Panadol” was not given in one sentence. Furthermore, he could not recall whether, at the same time as this information was elicited from the accused, Mr Chris Horne may have also been having a conversation with the accused.
However, it is to be noted that the range above is also consistent with the admission the accused made to Dr Chesterman on 30 May, that she “ingested and fed” 20 Diazepam tablets to Amelia.
Professor White was shown various of the exhibits being drugs that were seized from both the Woodside premises and the RAH on 29 May 2018. Specifically, he was shown two containers labelled ‘Phenergan’,[13] a bottle labelled ‘Antenex’,[14] numerous boxes labelled ‘Amitriptyline’,[15] a separate package labelled ‘Amitriptyline’,[16] and a box labelled ‘Phenergan’.[17] Professor White testified that the items were consistent with the blood results of the accused and Amelia. On cross examination Professor White stated that it was not possible for him to say, based on the analysis of Phenergan being in Amelia’s blood, whether any Phenergan induced by her was in liquid or tablet form.
[13] Exhibit P7.
[14] Exhibit P10.
[15] Exhibit P14.
[16] Exhibit P15
[17] Exhibit P16.
The accused’s blood results
Professor White stated that the accused’s blood sample (apparently taken at around 7.30 pm) contained the following substances:
-Alcohol 0.04%;
-Diazepam approx. 2.0 mg/L;
-Nordiazepam approx. 1.2 mg/L;
-Temazepam approx. 0.11 mg/L;
-Promethazine approx. 0.02 mg/L;
-Codeine 0.24 mg/L;
-Morphine approx. 0.01 mg/L;
-Amitriptyline 0.46 mg/L;
-Nortriptyline approx. 0.19 mg/L;
-Paracetamol approx. 30 mg/L;
-Naproxen approx. 38 mg/L;
-Loperamide approx. 3 µg/L;
-11-nor-9-carboxy- Δ9-tetrahydrocannabinol 8 µg/L.
The prosecutor conceded that the fact that the accused had these drugs in her system is of no real relevance to a consideration of whether the objective elements are proven beyond a reasonable doubt. I agree.
The applicable law and legal principles concerning the objective elements
Section 269GA of the CLC Act provides as follows:
A—Trial of objective elements of offence
(1) The court must first hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established against the defendant.
(2) If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt, the court must record a finding that the objective elements of the offence are established; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
(3) On the trial of the objective elements of an offence, the court is to exclude from consideration any question of whether the defendant’s conduct is defensible.
Section 269A relevantly provides:
objective element of an offence means an element of an offence that is not a subjective element.
…
subjective element of an offence means voluntariness, intention, knowledge or some other mental state that is an element of the offence.
I will deal first with the primary charge of attempted murder and then briefly with the alternative charge of aggravated causing harm with intent to cause harm.
The law of attempt in South Australia
In view of some submissions made by defence counsel, it is necessary to say something about the charge of attempted murder at common law (as it applies in South Australia), both in general and particularly in the present context of a trial of the objective elements of that offence under s 269 of the CLC Act.
The proximity requirement
There is no magic in the choice of words “the proximity requirement”. It is merely a convenient label by which to delineate the common law requirement that an accused person must be demonstrated to have proceeded some distance beyond the mere formulation of an intention to commit a particular offence before he can be convicted of attempting to commit that offence. Of course, the question will always be: ‘How far?’.
There are many analyses in the authorities concerning the correct answer to that question, and this will not be another one - I will not tarry beyond that which is required to settle the immediate matters before me. South Australian authorities have endorsed the approach which is usually referred to as the proximity test. Thus in R v Borinelli, the Court (Napier CJ, Mayo and Travers JJ) said of the meaning of “attempt”:[18]
On this we think that it is sufficient to say that we are unable – as the learned Judge was unable – to think of any definition of “attempt”, which would exclude the facts of the present case. The locus classicus is, probably, the judgment of Parke B. in R. v. Eagleton, where he said:– “Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are.”
In R. v. Cheeseman, the prisoner had, by means of a false weight, kept back meat which he intended to steal, but the fraud was discovered before he had actually moved away with it. It was held that he was rightly convicted of an attempt to steal. According to Blackburn J:–
“There is, no doubt, a difference between the preparation antecedent to an offence, and the actual attempt. But if the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.”
We think that this is, perhaps, the most intelligible explanation of the distinction between acts of preparation, i.e., remotely leading towards the commission of the offence, and acts “immediately” or “directly” connected with it, i.e. attempts to commit it. In other words, the line is to be drawn at the point where the individual begins to commit the offence, i.e. to do the thing which, if carried to its intended conclusion, would amount to the offence. [Citations omitted]
[18] [1962] SASR 214, 218.
More recently, in R v Irwin,[19] the Court of Criminal Appeal held that the correct test for an attempt in South Australia is that to be found in the judgment of Murphy J in Britten v Alpogut, commonly known as the ‘proximity test’:[20]
… at common law a criminal attempt is committed if it is proven that the accused had at all material times the guilty intent to commit a recognised crime and it is proven that at the same time he did an act or acts (which in appropriate circumstances would include omissions) which are seen to be sufficiently proximate to the commission of the said crime and are not seen to be merely preparatory to it.
[19] [2006] SASC 90.
[20] Britten v Alpogut [1987] VR 929, 938.
An ‘equivocality test’?
However, as I understood it, counsel for the accused submitted first, that an ‘equivocality test’ should be applied here rather than a proximity test; and second, that such an ‘equivocality test’ is not satisfied in the present case. Indeed, this seems to be the only submission put in the defence final address wherein counsel effectively conceded that if a proximity test is to be applied, that test is here satisfied:
HIS HONOUR: … If a person is thinking about ‘Wouldn’t it be nice to get rid of my rival at the business place. Wouldn’t it be nice if I poisoned him’, so he has a few thoughts along those lines. And perhaps he goes online and does a bit of research of untraceable poisons, things like that; does quite a bit of that actually and thinks about it for a fair while and makes some notes and so forth and so on. That’s all very well, but you would say that even though he has an evil plan in his mind he simply has not gone far enough down the track, he hasn’t even bought the poison let alone tried to put it into a mixture that his victim might drink, for example. It’s simply not proximate enough.
But if on the other hand a person procures the poison, comes up with a plan as to how to administer it, and puts it in the person’s pudding, let us say, to coin a phrase, and indeed the person eats the pudding, it is very, very hard to suggest that that is not proximate enough for the law of attempt. Would you agree?
MRS POWELL: I agree.
HIS HONOUR: The Crown case is, that with the exception of the pudding - and in fact they say it’s custard - it is exactly what I just put to you.
This is presumably why it was sought necessary to eschew a proximity test. Thus, defence counsel submitted:
MRS POWELL: I made the proposition that there is no authority that suggests the equivocality test is not something that is relevant and applicable to matters in South Australia.
HIS HONOUR: But is there any authority which says that there is something called an equivocality test which should be used in South Australia?
MRS POWELL: No your Honour, but your Honour will remember the comments of Besanko J in Reid where he made a very brief reference to definitions or tests to be used where attempts have been proved and he referred to the equivocality test and he referred to the proximity test. Either (sic neither) of those were disavowed by his Honour.
Reference to R v Reid[21] reveals that the accused was there charged with attempted murder, having brought a large meat cleaver down in a chopping motion towards the victim’s head and swung the meat cleaver towards the victim’s head multiple times. There was no dispute that the accused was mentally incompetent. In considering whether the conduct of the accused constituted the objective elements of attempted murder, Besanko J said:
I have considered the question of what constitutes the actus reus of the crime of attempt. Various tests have been adopted from time to time. There is what has been referred to as the proximity test (R v Eagleton (1855) Dears. 515 at 538 (169 ER 827 at 835); R v Cheeseman (1862) Le. & Ca. 140 (169 ER 1337); R v Borinelli [1962] SASR 214) and what has been referred to as the equivocality test (R v Barker [1924] NZLR 865; Davey v Lee [1968] 1 QB 366). It is unnecessary for me to decide if the actus reus of attempted murder as discussed in the authorities is the same as the objective elements of the offence of attempted murder within s 269G of Part 8A of the CLCA. … In my view, whatever test is adopted, the objective elements of attempted murder are made out on the facts of this case. … The acts of bringing a large meat cleaver down in a chopping motion towards Mr Chaniotis’ head, and then swinging the meat cleaver from other directions towards his head a number of times are clearly acts that, in my opinion, constitute the objective elements of attempted murder.
[21] [2004] SASC 221.
Thus, Besanko J did no more than note that an ‘equivocality test’ has been referred to in other jurisdictions but held that in light of the strong evidence in Reid, it was unnecessary to consider the matter further.
Whilst the application and utility of an ‘equivocality test’ has been considered in Australian jurisdictions within various statutory frameworks,[22] counsel for the accused could not point to any authority suggesting that any test other than the test adumbrated in Irwin should be applied in South Australia. I would suggest that perhaps the best and most comprehensive discussion of the matter is to be found in the judgments of the Tasmanian Court of Criminal Appeal in Nicholson v The Queen[23] where the Court decisively rejected the suggestion that an ‘equivocality test’ be adopted.
[22] As examples, see: R v De Silva [2007] QCA 301 and Nicholson v The Queen (1994) 14 Tas R 351.
[23] (1994) 14 Tas R 351.
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.
Therefore, in the light of that possibility, I indicate that I am satisfied beyond reasonable doubt that the objective elements of the alternative charge (including the requirement that harm was actually caused to Amelia and, as well, the averred circumstances of aggravation) are also established.
PART B: THE TRIAL OF MENTAL COMPETENCE
On 19 March 2020, the trial of the mental competence of the accused to commit either of the two alleged offences commenced.
Prior to that date, two forensic psychiatrists, Dr Nambiar and Dr Haeney, had prepared reports dated respectively 8 March 2019 and 26 November 2019 (the s 269WA expert reports) in which each concluded, on the balance of probabilities, that the accused was, at the time of the subject incident, mentally incompetent to commit either of the alternative charges.
The prosecution did not propose to tender a report of any other expert propounding a different conclusion. Rather, the prosecutor submitted in the broad that she wished to take a two stage approach. The first stage was to call a substantial amount of evidence concerning the accused’s medical history said to bear on her mental state leading up to, and at the time of, the subject incident which, it was submitted, had not been taken into account by Dr Nambiar and Dr Haeney. The second stage was to then cross-examine each of those Doctors on the evidence given in the first stage with a view to persuading the Court that their original conclusions in the s 269WA expert reports should not be accepted.[24]
[24] Possibilities envisaged by the prosecutor obviously included one or both of Dr Nambiar and Dr Haeney abandoning or modifying his original position; or, even if both remained resolute, persuading the Court that their opinions should not be accepted having regard to all of the evidence.
Stage One: The accused’s medical history
During stage one, a substantial amount of evidence was called and tendered concerning the accused’s long and unfortunate medical history. Documentary and oral evidence was given by (in order of appearance) Dr Arun Gupta, Dr Catherine Chesterman, Dr Michelle Atchison and Dr Andrew Sykes. I accept Doctors Chesterman, Atchison and Sykes as honest witnesses and being of appropriate expertise.
Had Stage Two proceeded as planned, it may have been necessary to set out and analyse in considerable detail all of the evidence given. However, I foreshadow that, after Stage One had been completed, and following a further process to be outlined below, the prosecutor determined to no longer contest the conclusions originally reached in the s 269WA expert reports. Accordingly, I will only briefly summarise some of the topics considered during the Stage One evidence.
2001 car accident and diagnosis of post-traumatic stress disorder
In 2001, the accused was involved in a car accident. Her pelvis was fractured; she sustained moderately severe neurological damage to the nerve supply to her large bowel; and she continued to suffer from constipation for many years after the accident. In 2016 she accused underwent an operation to have her large bowel removed; and since then she has suffered from faecal incontinence, largely treated by taking doses of Gastro-Stop and wearing pads. The accused was subsequently diagnosed with PTSD following the trauma of the 2001 car accident.
There was some divergence amongst the doctors as to whether the accused suffered from PTSD or complex PTSD. However, this is a matter that I need not dwell on for present purposes. I note that whether a diagnosis of PTSD or complex PTSD was preferred by a particular doctor, it was consistent in their respective opinions that the symptoms and a diagnosis of either PTSD or complex PTSD followed the 2001 car accident.
The death of Mr Jarrod Male
On 5 May 2013, the accused’s first husband and father of Amelia, Mr Jarrod Male, died. Unsurprisingly, his death was an important stressor that contributed to the accused’s mental health conditions. Following his death, the accused was involved in various arguments with his parents concerning his will which caused the accused a great deal of distress and unhappiness. As noted above, on the day following the subject incident, the accused admitted to Dr Chesterman that “she’d crushed about 20 Diazepam tablets which she’d then ingested and fed to her daughter in an attempt to cuddle up in bed and float off together and be reunited with her first husband”.
The diagnosis, and treatment of, major depression
Dr Sykes gave evidence that the accused was first diagnosed with major depression in 2000 for which she was treated between 2000 and 2018 by various doctors at the Hills Medical Service, including himself. He described his understanding of major depression as, broadly, “a mood state that limits your ability to function day-to-day in an effective fashion”. The diagnosis of major depression and treatment thereof can be traced back to a consultation with Dr Sue Taylor in 2000 in which Dr Taylor prescribed the accused Zoloft 100 mg. The accused consulted with Dr Taylor again on 18 October 2000 and this prescription was continued. On 17 July 2003, Dr Peter Zammit diagnosed the accused with major depression and prescribed Zoloft 100 mg twice daily with five repeats. Dr Zammit made the same diagnosis and prescribed the same medication to the accused on 21 January 2004 and 18 April 2005. On 11 May 2006, Dr Sykes diagnosed the accused as suffering from major depression and prescribed her Zoloft 100 mg with five repeats. The accused’s treatment changed on 21 January 2010, when Dr Morgan diagnosed the accused as suffering from major depression and prescribed her Amitriptyline 50 mg tablets with three repeats. Dr Sykes gave evidence that Amitriptyline is an older anti-depressant that has certain side effects that were useful in controlling some of the accused’s more troubling symptoms such as insomnia. On 16 June 2010, Dr Alan diagnosed the accused as suffering from major depression and continued the prescription of Amitriptyline. Dr Sykes did the same on 9 December 2011, and again on 23 April 2012, 27 October 2012 and 29 November 2013. Dr Sykes gave evidence that on 29 November 2013, he observed that the accused looked “underfed and gaunt”, did not present herself to her usual standards and was distressed due to a dispute involving Jarrod Male’s estate. On 15 January 2016, Dr Alan diagnosed the accused as suffering from major depression and prescribed her with Amitriptyline. Dr Sykes did the same on 4 August 2016, and Dr Taylor did the same on 19 January 2017.
Events immediately leading up to the subject incident
In the period of approximately two months leading up to the subject incident, the frequency of the accused’s medical appointments accelerated, concurrently with a deterioration in her mental health. This acceleration resulted in the admission of the accused to the FMC under an inpatient treatment order. I now turn to this period.
Acceleration of the accused’s PTSD and major depression
In the evening of 29 March 2018, Ms Melinda Heyer (the accused’s sister) received a phone call from the accused. Ms Heyer’s recollection of that conversation was that the accused was slurring her words and said that she had taken a number of pills. The accused put Mr Ball on the phone and he and Ms Heyer decided that the accused should be taken to hospital. The accused was taken to the RAH and admitted as an attempted suicide patient. Two days later, the accused was released from hospital and, over the next few days, made comments to Ms Heyer minimising the suicide attempt.
On 9 April 2019, the accused and Mr Ball attended at Crafers Clinical Psychology. The accused consulted with Mr Franklin McCurdy and told him that in the previous week she had taken a large overdose of Valium, but that it was not a suicide attempt; it was rather an attempt to have a “solid sleep” to lessen her suffering. Mr McCurdy’s assessment was that the accused had an extreme anxiety problem; a perfectionist orientation; and, whilst not suffering from Obsessive Compulsive Disorder, had a strong fear of judgment by others. In that regard, Mr McCurdy said that the drunken photos taken by Mr Ball in early 2018 were a trigger for the accused, who was also “embarrassed (that) Amelia saw me drunk”.
Also on 9 April 2018, the accused consulted with Dr Anna Billington. At this consultation, the accused scored 17 for depression (extreme range), 7 for anxiety (moderate) and 18 for stress (extreme). Dr Billington recorded the main issues discussed as: relationship issues, alcohol, overdose of Valium, complex PTSD and the anniversary of her first husband’s death from cancer”.
The accused continued to see Mr McCurdy numerous times throughout April and May 2018. On 26 April 2018, the accused consulted with Mr McCurdy (with Mr Ball in attendance) and told Mr McCurdy that she had been on the phone with Lifeline the previous evening as she was suicidal. Mr McCurdy recalled that the accused was borderline hysterical and was arguing with Mr Ball with regard to a trip Mr Ball had planned to visit a friend in Sydney; eventually, the accused reluctantly told Mr Ball that he should go to Sydney. Mr McCurdy viewed the accused’s messaging on this issue as manipulative and that she was not actually suicidal. Mr McCurdy did, however, suggest to her that she consider going into the Adelaide Clinic, which she strongly opposed. Her final consultation with Mr McCurdy was on 15 May 2018, at which time she told him that his previous comment about her being manipulative had weighed on her for two days.
On 4 May 2018, the accused sent a text message to Ms Heyer which read “no create me so Moo can fit with us. jarrod is buried deep so we can all fit”. (The name “Moo” is a nickname for Amelia.) After receiving this text message, Ms Heyer called the accused, but she did not answer. Ms Heyer then drove to her house, knocked on the door and sent numerous text messages to her but to no avail. However, in the early hours of the following morning, the accused texted Ms Heyer saying “I’m ok” and “Sorry”. Later that afternoon, the accused sent the following text message to Ms Heyer: “Don’t worry about me anymore. The pain I feel is so horrific that I’m medicating it to take it away. I was under the influence when I text you. I wont bother you anymore. Sorry again”.
On 10 May 2018, the accused witnessed a car accident involving a pedestrian and later that same day she attended at Mount Barker Hospital and complained of feeling anxious, suffering chest pain and other symptoms consistent with PTSD. Later that evening the accused sent a text message to Ms Heyer saying that she had witnessed a car accident.[25]
[25] It is also of note that on the day of the subject incident the accused was involved in a minor car accident, which was referred to in a text message she sent to Mr Ball at 12.28 pm on that day, as follows: “This is going to end badly for us isn’t it. I did try to reach out to you with love. And I am asking for moo is because I had a bingle on my car today”.
The following day, on 11 May 2018, the accused visited her parents’ house. The accused’s mother, Ms Heather Evans, recorded in her diary that day:
Kelly came in very distressed and said she was desperate for help but wouldn’t let us suggest any help. She threatened to put Amelia to sleep! I spoke to Mel and I rang Lifeline. Mel and Keiren to intervene tomorrow.
Further, Ms Evans stated in her affidavit:
My recollection of this incident was that Kelly came to our house in her pyjama’s and I was under the impression she may have been intoxicated. I recall asking Kelly words to the effect of how are you going to do that, and my best recollection Kelly replied, ‘I have my ways’. I do recall that when Kelly said this she was imitating the use of a Mortar and Pestle with her hands as if she was crushing something, which I assume was meant to be medication.
On the morning of 13 May 2018 (‘Mother’s Day’), Ms Heyer visited the accused at her house to offer her help. The accused did not receive this visit well and told Ms Heyer words to the effect that she had ruined her day. Ms Heyer left and the accused sent her abusive text messages later that day. Two days later, Ms Heyer visited the accused again for a coffee and the accused criticised her for visiting her on Mother’s Day.
On 14 May 2018, the accused consulted with Dr Sykes who observed that she was “in an acute distressed state following witnessing an accident in Norwood that brought up a whole lot of her own memories of her accident”. Dr Sykes testified that the accused’s mental state that day could be best summarised as “highly distressed”. He testified that she was usually calm and well presented, but on this day she behaved out of character and that “it was just not Kelly”.
At some time in the period between 14 May 2018 and 16 May 2018, Ms Melinda Heyer called Dr Sykes and informed him that she was very concerned about statements that the accused had been making – and that she feared for the accused and Amelia’s safety. On 16 May 2018, the accused consulted with Dr Sykes who prescribed Valproate and discussed her seeing a new psychologist, Ms Alison Robb (instead of Mr McCurdy). Two days later, on 18 May 2018, the accused again consulted with Dr Sykes, at which consultation Dr Sykes said the accused seemed to be in an improved condition. He again consulted with her on 21 May 2018, at which time he reduced her dosage of Valproate from 500 mg twice daily to 200 mg twice daily, and reduced her dosage of Amitriptyline from four at night to three at night. He also asked her to try to minimise alcohol intake.
On 22 May 2018, in the morning, the accused consulted with Dr Robb. Under a DASS21 assessment, the accused scored “in the mild range for depression, extremely severe range for anxiety and severe range for stress”. She reported extreme sleepiness and confusion, which she attributed to adverse effects of sodium valproate. Dr Robb thought that, although she was not at an immediate risk of harm, her suicide risk was elevated and required a co-ordinated care plan. He put forward the possibility of hospital admission, but she preferred a one-off review with a psychiatrist and ongoing therapy with Dr Robb.
Later that day, at about 11.53 am, the accused called Ms Heyer in a distressed state. Ms Heyer visited the accused at her home, where she was “in a ball in front of the fire in her dressing gown” and was cold and shaking. Ms Janine Evans was also present. Ms Heyer and Ms Evans attempted to convince her to go to hospital, but she resisted and then went to sleep. Later that afternoon, Ms Heyer reported her concerns regarding the accused to Dr Susan Taylor.
The detention order imposed on the accused on 24 May 2018 pursuant to s 21 of the Mental Health Act (SA) – and her subsequent release on 28 May 2018
On 23 May 2018 at 9.09 am, the accused sent a text message to Ms Heyer stating, “I asked Kieran to organise some one to be with me today. Now the suicidal, crack pot is on her own”. Shortly after, at 10.26 am, the accused sent another text message to Ms Heyer stating, “you have been an awesome sister to me and grown up into the one the most beautiful mother. But the friendship between us has been the most important. I love you, Rick and stell to the moon a nod back”. Ms Heyer did not respond to either message. At around 5.20 pm the accused sent another text message to Ms Heyer stating, “the message above should have been my last. But I fucked that up too”. At this time, Ms Heyer realised that the previous two messages were intended to be a suicide message.
On the following day, 24 May 2018, Ms Heyer and the accused together consulted with Dr Sykes. Dr Sykes who described the consultation thus:
Q. What was her presentation on that day.
A. She came in with Melinda, Melinda did all of the talking or most of the talking. Kelly was withdrawn, quiet, angry and didn’t really want to be there. Melinda told me a lot about Kelly’s alcohol consumption and how that was way above what I had ever considered it could possibly be and the fact that Kelly had made a couple of suicidal threats or suicidal comments to Melinda over her text messaging, some of which I think she showed me. At this stage I thought this is beyond me and I need to detain this person and get her help somewhere. Before I could even mention that Kelly got up and walked out.
After she abruptly left the premises, Dr Sykes signed a detention order pursuant to s 21 of the Mental Health Act (SA). He gave evidence that it was not his custom to detain people, and that the detention order in respect of the accused was “probably the first detention order [he had] made since [he] left Glenside and that was 25 years ago”. He also pointed out that a large proportion of his work (between 30% and 40%) as a general practitioner concerns mental health issues.
After leaving Dr Sykes’ premises, the accused went to the Aldgate Pharmacy. She there told Ms Honeybone that she had left the doctors’ office “because Melinda had taken over”. Ms Honeybone attempted to convince the accused to return to the doctors’ office but she refused, so Ms Honeybone drove her home. On that journey home, Ms Honeybone deposed in her affidavit:
Kelly was in a state, by that I mean that she was very distressed and sobbing. She was telling me that she felt that her family had abandoned her including her husband. She said “Sometimes I have thoughts of doing something to myself”. I took that to mean she had thoughts about suicide.
Later that day, 24 May 2018, the accused was admitted to the FMC and was initially conveyed to the Emergency Department. At 6.40 pm, Dr Fen-Fen Koh assessed the accused as presenting a low risk of suicide or self-harm. The progress notes in respect of the accused on 25 May 2018 stated that the accused was ‘not happy being in hospital’ but that she ‘denied suicidal thoughts’. The accused was later transferred to the Margaret Tobin Ward on 26 May 2018.
Dr Arun Gupta gave lengthy evidence concerning his consultation with the accused on 28 May 2018 at 10.30 am and the circumstances under which he signed an order on that day releasing her from detention. He also testified that after releasing her, he later became aware that she had made a suicide attempt and attempted to harm her daughter on 29 May 2018; he maintained that that information did not change his opinion that his diagnosis on 28 May 2018 was correct on the information available to him at that time.
It is not necessary to set out Dr Gupta’s evidence. I considered him to be defensive concerning his decision to release the accused and I had some difficulty in accepting various parts of his evidence. Where any of his evidence conflicts with the evidence of the other expert witnesses, I prefer that other evidence.
The Addendum Reports of Dr Nambiar and Dr Haeney
Following the completion of the evidence called on Stage One, I heard submissions from counsel as to the way in which Dr Nambiar and Dr Haeney should be cross-examined on their reports. It was determined that prosecution counsel, in consultation with defence counsel, would formulate a series of written questions to be submitted to each of the doctors, referring them to particular parts of the evidence to be considered by them (including the evidence given on Stage One); the doctors would then each prepare addendum reports answering those questions and would later attend at Court to be cross-examined on those addendum reports by prosecution counsel (with liberal re-examination by defence counsel).
The list of proposed questions was later received from prosecution counsel and in Court on 23 March 2020 I discussed with counsel the proposed questions and suggested certain alterations. Both counsel agreed with those alterations and on 24 March 2020, with consent of the parties, I made an order that Dr Nambiar and Dr Haeney each provide an addendum report to be prepared by reference to the set of revised written questions that were delivered to the doctors on that date. In preparing such addendum reports, the doctors were to have regard to particular evidence from the trial of objective elements; and the entirety of the transcript of the evidence of Dr Gupta, Dr Chesterman, Dr Atchison and Dr Sykes; and associated hospital and medical records.
On 14 April and 22 April 2020 respectively, Dr Nambiar and Dr Haeney provided separate addendum reports in which they each considered in detail all of the questions submitted. Each concluded that, on the balance of probabilities, the accused was mentally incompetent to commit the alleged offending.
Conclusion
By the time of a scheduled directions hearing on 30 April 2020, the additional reports had been received. At that directions hearing, the prosecutor intimated that she no longer wished to cross-examine either Dr Nambiar or Dr Haeney and now conceded that the defendant was mentally incompetent at the relevant time. She submitted that the Court should proceed by reference to s 269G(B)(5) of the CLC Act and Ms Powell for the defendant agreed with that procedure being adopted.
Having regard to all of the evidence, I too came to the conclusion that the defendant was mentally incompetent at the relevant time. Accordingly, in Court on 5 May 2020, by consent of both parties, I made the following orders pursuant to s 269G(B)(5) of the CLC Act:
1. I hereby terminate the investigation into the defendant’s mental competence to commit an offence.
2. I find that the defendant was at the relevant time mentally incompetent to commit either of the two alternative offences charged.
3. I find the defendant not guilty of both alternative offences.
4. I hereby declare the defendant to be liable to supervision under Division 4 Subdivision 2 of the CLC Act.
5. That the report referred to in section 269Q of the CLC Act be prepared and submitted to the court.
6. That an expert report be prepared and submitted to the court pursuant to section 269T of the Act.
7. That a victim and next of kin report be prepared and submitted to the court pursuant to section 269R of the Act.
The Court was then adjourned for submissions to be made both in relation to these reports, when available, and generally as to the further appropriate orders to be made.
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