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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Reid

Details

AGLC: R v Reid [2004] SASC 221
Case: [2004] SASC 221
Decision Date: 27 July 2004

CaseChat Overview and Summary

In the case of R v Reid, the accused was charged with one count of attempted murder and, in the alternative, one count of wounding with intent to do grievous bodily harm. The accused had attacked a gym owner with a meat cleaver, causing serious injuries. The key issue for the court was to determine whether the objective elements of the offence of attempted murder were established beyond a reasonable doubt, excluding the subjective element of intent to kill. The accused conceded that the objective elements of wounding with intent to do grievous bodily harm were made out, but argued that those of attempted murder were not.

The court examined the acts of the accused, which included bringing a large meat cleaver down in a chopping motion towards the victim’s head and swinging it from other directions towards his head multiple times. The court concluded that these actions clearly constituted the objective elements of attempted murder. The court was satisfied beyond reasonable doubt that the accused’s actions amounted to an attempt to murder the victim, regardless of the subjective intent to kill. Therefore, the court found that the objective elements of the offence of attempted murder were indeed made out.

Based on the findings, the court held that the objective elements of attempted murder were established beyond reasonable doubt, and the accused was found guilty of attempted murder. The court did not need to consider the issue of the accused’s mental competence as it pertained to the objective elements of the offence. The court did not specify the final orders, but typically, this would involve sentencing the accused for the offence of attempted murder.

Orders

Orders of the court

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Background

Background to the litigation

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 2nd 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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