R v Reid - [2004] SASC 221

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v REID
Judgment of The Honourable Justice Besanko
27 July 2004
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - OTHER CASES - ATTEMPTED MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Accused charged with one count of attempted murder and in the alternative with one count of wounding with intent to do grievous bodily harm – accused brought a large meat cleaver down in a chopping motion towards the victim’s head and then swung the meat cleaver from other directions towards the victim’s head a number of times – no dispute between the prosecution and the defence about the fact that the accused was mentally incompetent to commit either offence charged – where the accused elected to be tried by judge alone – where the objective elements of the offence tried before the question of the accused’s mental competence pursuant to s 269G of the Criminal Law Consolidation Act 1935 – where the accused conceded that the objective elements of wounding with intent to do grievous bodily harm were made out but submitted that the objective elements of attempted murder were not made out – whether the objective elements of attempted murder made out – held that the objective elements of attempted murder made out beyond a reasonable doubt.
Criminal Law Consolidation Act 1935 ss 11, 270A, 21, 269F, 269G, 269A, referred to.
R v T (1999) 75 SASR 235; R v Eagleton (1855) 169 ER 827; R v Cheeseman (1862) 169 ER 1337; R v Borinelli [1962] SASR 214; R v Barker [1924] NZLR 865; Davey v Lee [1968] 1 QB 366, considered.

R v REID
[2004] SASC 221
Criminal
BESANKO J:
Introduction

Matthew Travis Reid is charged with attempted murder (ss 11 and 270A Criminal Law Consolidation Act 1935 (“CLCA”)). It is alleged that on 2^nd July 2003 at Adelaide he attempted to murder Mr John Chaniotis. He is charged in the alternative with wounding with intent to do grievous bodily harm (s 21 CLCA). It is alleged that on 2^nd July 2003 at Adelaide he unlawfully and maliciously wounded Mr John Chaniotis with intent to do him grievous bodily harm.
At hearings conducted before trial, the prosecution and the defence advised the Court that there was no dispute about the fact that the accused was mentally incompetent to commit either offence. The Court was referred to various psychiatric reports, namely, reports from Dr Craig Raeside dated 18^th August 2003 and 12^th November 2003 and reports from Dr Andrew Czechowicz dated 21^st January 2004, 16^th February 2004 and 2^nd March 2004.
The charges were listed for trial before me on 30^th June 2004. The accused has elected to be tried by judge alone.
Under Part 8A of the CLCA I have the option of conducting a trial of the question of the accused’s mental competence first and then conducting a trial of the objective elements of the offence (s 269F), or of conducting a trial of the objective elements of the offence first and then conducting a trial of the question of the accused’s mental competence (s 269G).
The prosecution submitted that I should conduct a trial of the objective elements of the offences first and that I should find that the objective elements of attempted murder are made out. The accused submitted that I should conduct a trial of his mental competence first and that, as to the objective elements of the offence, I should find that the objective elements of attempted murder are not made out. It was conceded by the accused that the objective elements of wounding with intent to do grievous bodily harm are made out.
Neither party was able to put a strong reason for the order of trial which they proposed. As there was a dispute as to whether the objective elements of attempted murder are made out or only those of the charge of wounding with intent to do grievous bodily harm, I decided that it was convenient to proceed first with a trial of the objective elements of the offence.
The Statutory Provisions
Attempted murder is an offence by reason of ss 11 and 270A of the CLCA. Those sections relevantly provide:
“Murder
11. Any person who commits murder shall be guilty of an offence and shall be imprisoned for life.
…
Attempts
270A. (1) Subject to subsection (2), a person who attempts to commit an offence (whether the offence is constituted by statute or common law) shall be guilty of the offence of attempting to commit that offence.
(2) Where under a provision of any other Act, or any other provision of this Act, an attempt is constituted as an offence, this section—
(a) does not apply in relation to that offence; and
(b) does not operate to create a further or alternative offence with which a person who commits the former offence might be charged.
(3) The penalty for an attempt to which this section applies shall be as follows:
(a) in the case of attempted murder or attempted treason, the penalty shall be life imprisonment or imprisonment for some lesser term;
(b) where the penalty or maximum penalty for the principal offence (not being treason or murder) is life imprisonment, the penalty for the attempt shall be imprisonment for a term not exceeding twelve years;”
Wounding with intent to do grievous bodily harm is an offence by reason of s 21 of the CLCA. That section provides:
“Wounding etc with intent to do grievous bodily harm
21.   Any person who unlawfully and maliciously, by any means—
(a) wounds any person;
(b) causes any grievous bodily harm to any person;
(c) shoots at any person;
(d)     attempts to discharge loaded arms of any kind at any person,
with intent to –
(e)     maim, disfigure, disable, or do other grievous bodily harm to, any person;
(f)resist, or prevent the lawful apprehension or detainer of, any person,
shall be guilty of an offence and liable to be imprisoned for life.”
The trial of the objective elements of the offence with which an accused is charged is governed by s 269GA of the CLCA in circumstances where the trial judge decides to proceed first with the trial of the objective elements. That section relevantly provides:
“What happens if trial judge decides to proceed first with trial of objective elements of offence
269G. If the trial judge decides to proceed first with the trial of the objective elements of the offence, the court proceeds as follows.
Trial of objective elements of offence
A. (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 is an interpretation section, and the following definitions are relevant:
“Interpretation
269A. (1) In this Part –
…
‘defence’ – a defence exists if, even though the objective elements of an offence are found to exist, the defendant is entitled to the benefit of an exclusion, limitation or reduction of criminal liability at common law or by statute;
‘defensible’ – a defendant’s conduct is to be regarded as defensible in proceedings under this Part if, on the trial of the offence to which the proceedings relate, a defence might be found to exist.
…
‘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;”
An intention to kill is a subjective element of the offence of attempted murder. It follows from the statutory provisions referred to above that I am to exclude this element from my consideration of whether the objective elements of the offence of attempted murder are established beyond reasonable doubt (R v T (1999) 75 SASR 235 per Doyle CJ at 241 – 242).
The Facts
The prosecution did not call any oral evidence. Rather, it tendered various witness statements and photographs. The accused did not call any oral evidence. He tendered the psychiatric reports referred to above, although on reflection I think these reports are only relevant to the question of the accused’s mental competence. Certainly, counsel for the accused did not suggest that the statements made by the accused to the psychiatrists as recorded in their respective reports were relevant to the question whether the objective elements of the offence of attempted murder are made out.
On the basis of the material put before me, I make the following findings of fact.
The accused was born on 22 January 1979, and was 24 years old at the time of the alleged offence. He is a single man who has never been married and he has no children.
In July 2003 Mr Chaniotis was the owner of J & A Fitness Academy at 22 Gilbert Street, Adelaide. The accused had been attending the gym for some years and he took lessons in kickboxing and then started doing some cleaning work. He was paid what Mr Chaniotis described as “some pocket money” for that work.
The accused went to the gym at about 2.00 pm on 2^nd July 2003. At about 4.15 pm the accused attacked Mr Chaniotis with a meat cleaver in the front office of the gym. Mr Chaniotis was on the telephone listening to voice messages. He was facing the weights area of the gym. He saw the accused running towards him from the weights area. The accused was about two metres away when Mr Chaniotis first saw him. The accused had his right hand raised, but at that point Mr Chaniotis did not see a weapon in his hand.
In fact, the accused had a meat cleaver in his hand. It was about 20 centimetres long and about 7 centimetres wide and it was silver with a black handle. I find that the accused’s first movement was to punch Mr Chaniotis on the right cheek. I find the accused was swinging the meat cleaver at Mr Chaniotis’ head in a forceful fashion. I find that the accused’s initial movement was a straight down chop towards the top of Mr Chaniotis’ head, and that the other movements were from other directions but were still aimed at his head. Mr Chaniotis had his hands up and they were struck about five times by the meat cleaver. Mr Chaniotis was able to fend off the attack and he ran from the area. The accused chased him and was swinging the meat cleaver at him. At one point the accused struck Mr Chaniotis on the left knee.
Mr Chaniotis suffered the following injuries as a result of the attack:
1.A fracture of the index finger proximal phalanx (ie., base of the finger), a fracture of the middle finger metacarpal head (ie., knuckle) and the ulnar styloid (ie., part of the wrist). Mr Chaniotis had a deep laceration over the back of his left hand between the index and middle finger metacarpal heads or knuckles. The index finger fracture was treated with internal wire fixation. The extensor tendon to this finger was found to be lacerated and was subsequently sutured. The middle finger metacarpal fracture was internally fixed with a wire. The extensor tendons to this finger were also found to be lacerated and sutured together. The ulnar styloid was internally fixed with a wire and a wrist extensor tendon was also found to be lacerated and was sutured. The skin wounds were closed and Mr Chaniotis’ left hand was placed in a plaster splint.
2.Superficial cuts to his middle and ring fingers on his right hand which were treated with simple dressings.
3.A small laceration approximately two centimetres in length in his left leg which was sutured when Mr Chaniotis was taken to theatre.
The Relevant Offence
The prosecution submits that I should find that the objective elements of attempted murder are made out. It submits that for this purpose it is sufficient that the elements of an assault are established, and that it is, in effect, left to the prosecution to exercise a proper judgment as to the precise charge which should be laid against the accused. It was submitted by the prosecution that unless it was clear to me that the prosecution had not exercised its discretion properly, I should find that an assault was enough to establish the objective elements of attempted murder.
The accused submits that the objective elements of attempted murder are not made out because the facts, and in particular, the nature of the injuries sustained by Mr Chaniotis could not, when viewed objectively, support such a verdict. Alternatively, he submits that any inference from the facts of an attempt to kill is so equivocal that there would have to be a reasonable hypothesis consistent with innocence. In the further alternative, he submits that the facts are equally capable of supporting a verdict of guilty on lesser charges, and in those circumstances the court could not be satisfied beyond reasonable doubt that the objective elements made out in this case are only attributable to an intent to kill and not the objective elements of some lesser charge.
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, or to decide if the submission made by the prosecution that proof of an assault is sufficient to constitute the objective elements of attempted murder is correct. In my view, whatever test is adopted, the objective elements of attempted murder are made out on the facts of this case. It is not sufficient to simply look at the injuries sustained by Mr Chaniotis. It is necessary to look also at the actions of the accused in inflicting those injuries. 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.
Conclusion
I am satisfied beyond reasonable doubt that the objective elements of attempted murder are made out.