R v Murphy
[2009] SASC 2
•8 January 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v MURPHY
[2009] SASC 2
Reasons for Decision of The Honourable Justice Gray
8 January 2009
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
MENTAL HEALTH - DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY
Defendant charged with murder – defendant pleaded not guilty and raised defence of mental incompetence, pursuant to sections 269C and 269E(1)(a) Criminal Law Consolidation Act 1935 (SA) – defendant fit to plead to charge – defendant elected for trial by Judge alone – trial of mental competence and objective elements of offence proceeded before Supreme Court Judge – whether defendant mentally incompetent to commit offence – consideration of tendered psychiatric reports – whether objective elements of offence satisfied beyond reasonable doubt – consideration of defendant’s tendered signed admission of objective elements pursuant to section 34 Evidence Act 1929 (SA) – consideration of declarations filed by DPP.
Held: Psychiatric reports establish that defendant was mentally incompetent to commit offence – finding recorded pursuant to section 269F A(5)(b) Criminal Law Consolidation Act that defendant mentally incompetent to commit offence – defendant’s admission and tendered declarations establish the objective elements of offence beyond reasonable doubt – finding recorded pursuant to section 269F B(2) that objective elements of offence are satisfied beyond reasonable doubt – finding recorded pursuant to section 269F B(3) that defendant not guilty of murder – declaration made that defendant is liable to supervision under Part 8A Criminal Law Consolidation Act – defendant to be kept in custody in James Nash House until further order.
Criminal Law Consolidation Act 1935 (SA) s 11, s 269, s 269A, s 269B, s 269C, s 269D, s 269E, s 269F, s 269G, s 269O, s 269S, s 269T, s 269X; Evidence Act 1929 (SA) s 34, referred to.
Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251, considered.
R v MURPHY
[2009] SASC 2Criminal
GRAY J
This is a trial by judge alone.
Arraignment
The defendant, Krystyl Sheleema Murphy, is charged on Information with the offence of murder. It is alleged that on the 30th day of December 2007, the defendant murdered Toby Tang Benson Garratt.[1]
[1] Criminal Law Consolidation Act, section 11 provides:
“Any person who commits murder shall be guilty of an offence and shall be imprisoned for life.”
The defendant pleaded not guilty to the charge and raised the defence of mental incompetence pursuant to sections 269C and 269E(1)(a) of the Criminal Law Consolidation Act 1935 (SA).
Psychiatric reports of Dr Craig Raeside dated 18 July 2008, Dr Maria Tomasic dated 9 October 2008, and Dr Kenneth O’Brien dated 6 November 2008, all proffered the opinion that the defendant was, at the time of each report, fit to plead.
Election For Trial By Judge Alone
The defendant, through her counsel, informed the Court that she elected for trial by Judge alone pursuant to section 269B(1) of the Criminal Law Consolidation Act.[2]
[2] Criminal Law Consolidation Act, section 269B(1) provides:
“An investigation under this Part by the Supreme Court or the District Court into—
(a)a defendant's mental competence to commit an offence or a defendant's mental fitness to stand trial; or
(b)whether elements of the offence have been established,
is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a judge sitting alone.”
Ordinarily, the order of proceedings is a matter for the trial Judge to decide. Pursuant to section 269E(2), a trial judge has a discretion to decide whether to proceed first with the trial of the defendant’s mental competence to commit the offence or with the trial of the objective elements of the offence. When a trial judge chooses to proceed first with the trial of the objective elements, the matter proceeds under section 269G of the Criminal Law Consolidation Act.
I propose to proceed first with the trial of the defendant’s mental competence, and so the matter will proceed under section 269F of the Act.[3]
[3] Criminal Law Consolidation Act 1935 (SA), section 269F provides:
“If the trial judge decides that the defendant's mental competence to commit the offence is to be tried first, the court proceeds as follows.
A—Trial of defendant's mental competence
(1)The court—
(a) must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental competence to commit the offence; and
(b) may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.
(2)The power to require an examination and report under subsection (1)(b) may be exercised—
(a) on the application of the prosecution or the defence; or
(b) if the judge considers the examination and report necessary to prevent a possible miscarriage of justice—on the judge's own initiative.
(3)At the conclusion of the trial of the defendant's mental competence, the court must decide whether it has been established, on the balance of probabilities, that the defendant was at the time of the alleged offence mentally incompetent to commit the offence and—
(a) if so—must record a finding to that effect;
(b) if not—must record a finding that the presumption of mental competence has not been displaced and proceed with the trial in the normal way.
(5)The court may, if the prosecution and the defence agree—
(a)dispense with, or terminate, an investigation into a defendant's mental competence to commit an offence; and
(b) record a finding that the defendant was mentally incompetent to commit the offence.
B—Trial of objective elements of offence
(1)If the court records a finding that the defendant was mentally incompetent to commit the offence, the court must 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.
(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.
(3)If the court finds that the objective elements of the offence are established, the court must find the defendant not guilty of the offence but declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
(4)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.”
Trial Of The Defendant’s Mental Incompetence
The defendant bears the onus of displacing the presumption of mental competence pursuant to section 269D of the Act.[4]
[4] Criminal Law Consolidation Act 1935 (SA), section 269D provides:
“A person's mental competence to commit an offence is to be presumed unless the person is found, on an investigation under this Division, to have been mentally incompetent to commit the offence.”
By agreement, and pursuant to section 269F A(5) of the Criminal Law Consolidation Act, the prosecution and defence have asked the Court to dispense with the investigation of the defendant’s mental competence to commit the offence. Section 269F A(5) provides:
(5) The court may, if the prosecution and the defence agree—
(a) dispense with, or terminate, an investigation into a defendant's mental competence to commit an offence; and
(b) record a finding that the defendant was mentally incompetent to commit the offence.
By consent, the parties have tendered the earlier referred to psychiatric reports and have asked that they be received into evidence under section 269F A(1)(a) of the Act. [5]
[5] Criminal Law Consolidation Act 1935 (SA), section 269F A(1)(a) provides:
“(1)The court—
(a) must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental competence to commit the offence”
On 18 July 2008, Dr Raeside reported that in his view there was clear evidence that the defendant was suffering from a mental impairment at the time of the alleged offence, namely an acute relapse of chronic schizophrenia. He could find no evidence that clearly suggested that the defendant knew the wrongfulness of her actions at the time of the alleged offence. On this basis he supported a mental incompetence defence in this matter.
In his report, Dr Raeside expressed the opinion that at the time of the offence the defendant was suffering from a mental impairment:
Based on the information available to me and from my interview with Ms Murphy I would concur with a diagnosis of Chronic Schizophrenia - disorganised type, with evidence of an acute relapse at the time of the alleged offence. Indeed, her mental health had been poorly controlled in the months leading up to the alleged offence, with recurrent presentations and admissions to hospital. …
…
In my view there is clear evidence that Ms Murphy was suffering from a mental impairment at the time of the offence, namely an acute relapse of Chronic Schizophrenia.
Dr Raeside indicated that, in his view the defendant would have available to her a defence of mental incompetence under section 269C(b):
[H]er description of unusual perceptual experiences such as seeing a face coming out of Ms Garratt, or hearing voices saying that she wanted to die, or needed to be killed, would all be consistent with her psychotic state at that time.
There appears to be little other rational explanation as to why she would otherwise kill a woman who appeared to have been a friend of hers at the time. Of the numerous witness statements none seem to provide any alternative explanation, with most people suggesting that they were getting along well together.
… I could find no strong evidence that clearly suggests she knew the wrongfulness of her actions at the time of the alleged offence. Indeed, her disturbed mental state would seem to have produced difficulty in reasoning with a moderate degree of sense and composure about the wrongfulness of her behaviour.
…
I therefore would support a mental incompetence defence in this matter
On 9 October 2008, Dr Tomasic reported that in her opinion, on the balance of probabilities, the defendant was unable to understand the wrongfulness of her actions with a moderate degree of sense and composure. Dr Tomasic considered that there were grounds for a mental impairment defence based on her being unable to adequately understand the wrongfulness of her acts.
In her report, Dr Tomasic expressed the opinion that the defendant was suffering a mental impairment at the time of the offence:
Ms Murphy has a clearly documented history of Chronic Schizophrenia and was grossly psychotic at the time of the offence on 31 December 2007, related to ongoing chronic symptoms and a exacerbation related to non-compliance with medication and illicit drug and heavy alcohol use. Also contributing were social stressors of homelessness and loss to follow-up. On discharge from hospital on 30 October she had only had one injection of Consta, and therefore would not yet have had a therapeutic level (which takes three doses) and was reliant on being compliant with her oral medication.
Dr Tomasic’s conclusion supports a defence of mental incompetence under section 269C(b):
[I]n my opinion on the balance of probabilities she was unable to understand the wrongfulness of her actions with a moderate degree of sense and composure. She was grossly psychotic with psychotic thought disorder, disorganization, auditory and visual hallucinations, bizarre, grandiose and paranoid hallucinations and the belief that she had to kill Toby to save her.
On 6 November 2008, Dr O’Brien reported that, in his opinion, the defendant had available to her a mental impairment defence. Dr O’Brien reported that although he accepted that polysubstance and alcohol abuse contributed to her ongoing psychosis, he was satisfied that at the material time – that is, the killing of Toby Garratt – the defendant was actively psychotic. At that time, she entertained a variety of bizarre delusional ideas, and although she would have known the nature and quality of her conduct, she would not have known that her conduct was wrong, in the sense that she was unable to reason about its wrongfulness with a moderate degree of sense and composure.
Dr O’Brien concurred with the diagnosis of schizophrenia “which has consistently been made over time and in a variety of psychiatric facilities by psychiatrists.”
Dr O’Brien is of the view that, at the time of the offence, the defendant was suffering a mental impairment:
I am satisfied that at the material time (that is the killing of Toby Garrett [sic]) she was actively psychotic. At that time, she entertained a variety of bizarre delusional ideas (as outlined in the body of my report). She seems to have been of the view that her victim was “the chosen one” and that by killing her (and the woman whose face she saw) she would be saving both of them.
Dr O’Brien is of the opinion that the defendant would meet the test of mental incompetence under section 269(b) of the Act:
Although your client would have known the nature and quality of her conduct (strangling Toby Garrett [sic]), in my opinion she would not have known that her conduct was “wrong” (in the sense that she was unable to reason about its wrongfulness with “a moderate degree of sense and composure”). Although there was a command-like quality to her psychotic experiences at the time, it is possible that she could have desisted from her actions although that might have been quite difficult for her. However, on balance I believe that she could have controlled her conduct. Nevertheless, that limb of the “mental impairment” criteria is redundant in view of my affirmative opinion with respect to the “wrongfulness” test.
These three reports establish that the defendant was mentally incompetent. I record a finding, pursuant to section 269F A(5)(b)[6] of the Criminal Law Consolidation Act, that the defendant was mentally incompetent to commit the offence.
[6] Criminal Law Consolidation Act 1935 (SA), section 269F A(5)(b) provides:
“(5)The court may, if the prosecution and the defence agree—
(a)dispense with, or terminate, an investigation into a defendant's mental competence to commit an offence; and
(b) record a finding that the defendant was mentally incompetent to commit the offence.”
Trial Of The Objective Elements Of The Offence
The parties consented to the tender of the declarations filed on behalf of the Director of Public Prosecutions in this Court in respect of the offence with which the defendant stands charged, and agreed that those declarations should be accepted into evidence pursuant to section 269F B(1) of the Criminal Law Consolidation Act. That section provides:
If the court records a finding that the defendant was mentally incompetent to commit the offence, the court must 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.
Pursuant to section 34 of the Evidence Act 1929 (SA) and in the presence of the defendant, counsel for the defendant admitted the existence of the objective elements and the facts deposed to in the declarations that have been filed with this Court. The defendant signed an admission in the following terms:
I, Krystyl Sheleema MURPHY of c/- James Nash House, 140 Hilltop Drive, OAKDEN SA 5086 agree with the opinion of Dr Craig Raeside, Dr Maria Tomasic and Dr Kenneth O’Brien that I am mentally fit to instruct and to stand trial at the present time.
I have instructed my counsel, Bronwen Waldron, that I admit the objective elements of the offence of murder and I formally admit that between the 29th December 2007 and the 31st December 2007 in Adelaide I unlawfully caused the death of Toby Garratt by manual strangulation.
Questions regarding deliberate intention and/or reckless indifference are subjective elements of an offence and the Court must exclude those elements from its consideration of whether the objective elements of the offence are established beyond reasonable doubt.[7]
[7] See Question of Law Reserved (No. 1 of 1997) (1997) 70 SASR 251. Section 269A of the Criminal Law Consolidation Act 1935 (SA) defines an objective element of an offence as “an element of an offence that is not a subjective element” and a subjective element of an offence as “voluntariness, intention, knowledge or some other mental state that is an element of the offence”.
Evidence Tendered
The declarations filed establish the following material facts.
Ms Garratt arrived in Adelaide from Perth on 20 November 2007, and stayed at a backpacker’s hostel in Adelaide. Her accommodation was arranged by Metro Home Link, an agency that arranges emergency accommodation for people. She stayed for 8 nights. The owner of the hostel believed she needed assistance as she did not seem capable of looking after herself. The owner gave evidence that he observed that someone from Metro Home Links called her every day, and she had three mental health workers attend and speak to her three or four times in the period she stayed at the hostel. Several people who stayed at the backpacker’s hostel also gave evidence that she appeared to have mental health problems and could not look after herself properly. She left the hostel on 28 November 2007.
Ms Garratt then resided at Palm Lodge, the Mental Health Services premises. During December, she met and became friends with the defendant, Timothy Denton and Daniel Anthony, who were all staying at Palm Lodge.
Gary William Pountney gave evidence that he saw Ms Garratt on a bus on 14 or 15 December 2007. Ms Garratt was crying, and told Mr Pountney that the girl who she was staying with had stolen all of her cash and clothes. Mr Pountney invited Ms Garratt back to his home, where she stayed for about an hour. He next saw her approximately a week later, on 21 December 2007, and several times between that day and 24 December 2007. He gave evidence that she took Zoloft medication.
Amber Louise Willing saw Ms Garratt and the defendant catch a train to Adelaide together at about 10.00pm on 22 December 2007.
Timothy Denton gave evidence that the defendant and Ms Garratt were expelled from Palm Lodge on 23 December 2007 for using drugs and alcohol in their rooms.
Alicia Bridget-Meg Charnstrom, a key worker involved in exceptional needs for Anglicare clients, received a phone call on the morning of 24 December 2007 that one of her clients, Timothy Denton, was moving back into a house that he had previously occupied. The house was occupied by a different client. Ms Charnstrom attended the house to tell Mr Denton that he was not able to stay there. When she arrived, she saw Mr Denton, Ms Garratt and the defendant were all at the house. She gave them a lift to Palm Lodge.
On the nights of 25 and 26 December 2007, Ms Garratt and the defendant stayed at the house of Matthew Hutchens, who met them at 8.00pm on 25 December 2007.
Leon Byass saw Ms Garratt, the defendant and one other man at a bus stop at about 3.00pm on 27 December 2007. Ms Garratt was loudly groaning. Mr Byass called the police, and when they arrived Ms Garratt and the defendant ran down the street.
Timothy Denton saw Ms Garratt and the defendant in town again on the afternoon of 28 December 2007.
Michelle Creten, a support worker at the Salvation Army Towards Centre Independence Sobering Up Unit, gave evidence that Ms Garratt and the defendant attended at the centre at about 10.40pm on 29 December 2007. Ms Creten arranged for accommodation for that night, and they left the centre at about 10.15am the next day, 30 December 2007.
Danica Lee Ashworth, assistant manager of the Stag Hotel, gave evidence that the defendant and Ms Garratt sat at an outside table at the Stag from midday until about 4.30pm on 30 December 2007. When a band started playing inside, Ms Garratt and the defendant went inside the Stag.
Several witnesses saw Ms Garratt and the defendant dancing at the bar of the Stag between 4.30pm and 5.30pm. Witnesses gave evidence that Ms Garratt appeared to them to be on drugs. The defendant was warned by a bouncer to stop smoking, but later she started smoking again and so was removed from the premises. Ms Garratt left the premises with her.
Later, at about 7.30pm, Ms Garratt and the defendant were seen sitting outside the Strathmore Hotel. Ms Garratt was crying, and the defendant was not comforting her.
CCTV footage shows that Ms Garratt and the defendant walked along North Terrace toward West Terrace at 9.24pm. At 9.25pm they crossed West Terrace heading toward the oval on the other side of West Terrace. Between 10.19pm and 10.24pm, footage shows the defendant walking alone along West Terrace and North Terrace.
At about 6.10am on 31 December 2007, police on mobile patrol were waved down by three females who had found a person collapsed on an oval near Port Road and West Terrace.
More police were called to the scene. Police found Ms Garratt lying dead on the oval, and they noticed several small marks around her throat.
On 2 January 2008 at about 6.00pm, Matthew Hutchens and Doug Hensen saw the defendant. They spoke with her, and went back together with her to the house where Mr Hutchens and Mr Hensen lived. They called the police, and the police arrived to question the defendant. The defendant admitted her involvement in strangling Ms Garratt.
Findings
The unchallenged evidence set out in the tendered declarations together with the defendant’s in court admissions establishes the objective elements of the offence beyond reasonable doubt, and I record such a finding pursuant to section 269F B(2).[8]
[8] Criminal Law Consolidation Act 1935 (SA), section 269F B(2) provides:
“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.”
I record my finding, pursuant to section 269F B(3), that the defendant is not guilty of the offence of murder. I further declare that the defendant is liable to supervision under Part 8A of the Act. Section 269F B(3) provides:
If the court finds that the objective elements of the offence are established, the court must find the defendant not guilty of the offence but declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
Disposition
Where a defendant is found liable to supervision under Part 8A of the Act, the Court is required to determine the disposition of that person. Section 269O of the Criminal Law Consolidation Act provides:
(1)The court by which a defendant is declared to be liable to supervision under this Part may—
(a) release the defendant unconditionally; or
(b) make an order (a “supervision order”)—
(i) committing the defendant to detention under this Part; or
(ii)releasing the defendant on licence on conditions decided by the court and specified in the licence.
(2)If a court makes a supervision order, the court must fix a term (a "limiting term") equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established.1 .
(3)At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
Note—
1 The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant's mental impairment.
In the circumstances of this case it would not be appropriate for the Court to make an order for the defendant’s unconditional release under section 269O(1)(a). Counsel for the defendant conceded that in the circumstances of this case it would be appropriate for the court to make a supervision order under section 269O(1)(b).
Following the making of a declaration of liability to supervision under section 269F B(3), in deciding whether to commit the defendant to detention or to release her on licence, the Court must apply the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community, pursuant to section 269S, and take into account the following matters outlined in section 269T:
(1) In deciding proceedings under this Division, the court should have regard to—
(a) the nature of the defendant's mental impairment; and
(b) whether the defendant is, or would if released be, likely to endanger another person, or other persons generally; and
(c) whether there are adequate resources available for the treatment and support of the defendant in the community; and
(d) whether the defendant is likely to comply with the conditions of a licence; and
(e) other matters that the court thinks relevant.
(2)The court cannot release a defendant under this Division, or significantly reduce the degree of supervision to which a defendant is subject unless the court—
(a) has considered at least three reports (“expert reports”) each prepared by a different psychiatrist or other appropriate expert who has personally examined the defendant, on—
the mental condition of the defendant; and
the possible effects of the proposed action on the behaviour of the defendant; and
(b) has considered the report most recently submitted to the court by the Minister under this Division; and
(c) has considered the report on the attitudes of victims and next of kin prepared under this Division; and
(d) is satisfied that—
(i) the defendant's next of kin; and
(ii) the victim (if any) of the defendant's conduct; and
(iii)if a victim was killed as a result of the defendant's conduct the next of kin of the victim,
have been given reasonable notice of the proceedings.
(2a) However, the court may act on the basis of one or two expert reports if—
(a) the supervision order arose from proceedings based on a charge of a summary (rather than an indictable) offence; and
(b) satisfied that, in the circumstances of the case, the report or reports adequately cover the matters on which the court needs expert advice.
(3)Notice need not be given under subsection (2)(d) to a person whose whereabouts have not, after reasonable inquiry, been ascertained.
As I am satisfied that it is appropriate to declare the defendant liable to supervision, the Court is required to order three psychiatric reports pursuant to section 269T(2)(a) of the Act to assist the Court in deciding whether it is appropriate to release the defendant on conditions of licence, or to make an order reducing the degree of supervision.
The prosecution is required pursuant to section 269R(1) of the Criminal Law Consolidation Act to provide the Court with a report setting out the views of the victims of the defendant’s conduct and the views of the defendant’s next of kin. Section 269R(1) provides:
For the purpose of assisting the court to determine proceedings under this Division, the Crown must provide the court with a report setting out, so far as reasonably ascertainable, the views of—
(a) the next of kin of the defendant; and
(b) the victim (if any) of the defendant's conduct; and
(c) if a victim was killed as a result of the defendant's conduct the next of kin of the victim.
It is appropriate that determination of these proceedings be adjourned to allow for the preparation of those reports.
Counsel for the defendant concedes that in the circumstances of this case, the appropriate order would be under section 269O(1)(b)(i) committing the defendant to detention under Part 8A of the Act.
Once a court makes a supervision order, the court must fix a limiting term under section 269O(2). The limiting term for the offence of murder is fixed by reference to the mandatory sentence for murder in the case of a defendant who has been found guilty of the offence.[9] The defendant has conceded that the appropriate limiting term in these circumstances is a supervision order for life. Despite these concessions, I must consider the reports that have been ordered before I determine whether to make an order for detention, and if an order for detention is made, the length of the limiting term.
[9] Question of Law Reserved No. 1 of 1997 (1997) 70 SASR 251.
Section 269X(2) provides power to release the defendant on bail or to commit the defendant to custody in James Nash House, pending the further consideration of this matter. The section provides:
If a court declares a defendant to be liable to supervision under this Part, but unresolved questions remain about how the court is to deal with the defendant, the court may—
(a)release the defendant on bail to appear subsequently to be dealt with by the court; or
(b)commit the defendant to some appropriate form of custody (but not a prison unless the court is satisfied that there is, in the circumstances of the case, no practicable alternative) until some subsequent date when the defendant is to be brought again before the court.
Having regard to the psychiatric opinions I order that the defendant should be kept in custody at James Nash House until further order.
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