R v Smailes

[2021] SASC 81

Supreme Court of South Australia

(Criminal)

R v SMAILES

Criminal Trial by Judge Alone

[2021] SASC 81

Reasons for the Orders of the Honourable Justice Bampton  (ex tempore)

1 July 2021

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

The defendant was charged with attempted murder or in the alternative aggravating causing serious harm with intent to cause harm or in the alternative intentionally causing harm to a prescribed emergency worker — defendant pleaded not guilty by reason of mental incompetence — investigation under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) dealt with by way of a Judge sitting alone — Court determined to proceed first with the trial of the objective elements of the offences pursuant to s 269G of the CLCA — defendant conceded the evidence establishes the objective elements of the offence of attempted murder — finding recorded pursuant to s 269GA(2) of the CLCA that the objective elements of the offence of attempted murder are established beyond reasonable doubt — defendant has a mental impairment as defined by s 269A of the CLCA — defendant at the time of the conduct giving rise to the charge of attempted murder was suffering a mental impairment and in consequence of the mental impairment he could not, pursuant to s 269C(1)(b) of the CLCA, reason about whether the conduct, as perceived by reasonable people, was wrong — pursuant to s 269GB(5)(b) of the CLCA defendant declared mentally incompetent to commit the offence of attempted murder, found not guilty of the offence of attempted murder and declared liable to supervision under Division 4 Subdivision 2 of the CLCA.

HELD:

1.Finding recorded pursuant to s 269GA(2) of the CLCA that the objective elements of the offence of attempted murder are established beyond reasonable doubt. Consequently, the charges in the alternative were not proceeded with.

2.Pursuant to s 269GB(5)(b) of the CLCA, the defendant declared mentally incompetent to commit the offence of attempted murder, found not guilty of the offence of attempted murder and declared liable to supervision under Division 4 Subdivision 2 of the CLCA.

3.Defendant committed to custody pursuant to s 269X(2)(b) of the CLCA.

Criminal Law Consolidation Act 1935 (SA) Part 8A, ss 269GA(1), 269GA(2), 269D, 269GB(1), 269GB(5)(a), 269A, 269C(1)(b), 269GB(5)(b), 269X(2)(b), Division 4 Subdivision 2, referred to.

R v SMAILES
[2021] SASC 81

1. BAMPTON J (ex tempore):  Josiah Smailes is charged with attempted murder, or in the alternative aggravated causing serious harm with intent to cause serious harm or in the alternative intentionally causing harm to a prescribed emergency worker (“the alleged offences”).

   The circumstances of the alleged offences

2. In March 2020, Mr Smailes was diagnosed as having a psychotic episode having previously been diagnosed with schizophrenia.  From 26 March 2020, he was a resident at the Trevor Parry Centre.  On 31 May 2020, a nurse and a community rehabilitation worker (“the worker”) attended the unit occupied by Mr Smailes.  The worker informed Mr Smailes that he was there to give him his medication and Mr Smailes said words to the effect “That’s good”.  Mr Smailes picked up a knife with his left hand, approached the worker and began striking at the top of the worker’s head in a downward motion with the knife.  The worker attempted to block Mr Smailes’ blows with his left hand, but Mr Smailes continued to strike at his face and arms.  The worker grabbed Mr Smailes and together they fell over the back of a couch.  Mr Smailes continued to swing towards the worker, however the worker was able to get up and leave the unit.

   Trial of objective elements of the alleged offences

3. Mr Smailes consents to the tender of the declarations filed by the prosecution in this matter in respect of the alleged offences with which he stands charged. Noting the prosecution agrees, the declarations are received into evidence (“the evidence”). I have, pursuant to s 269GA(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”), had regard to the evidence and the representations put by the prosecution and Mr Smailes in determining the question of whether I should find the objective elements of the alleged offences are established against Mr Smailes.

4. Mr Smailes agrees the evidence establishes the objective elements of the offence of attempted murder beyond reasonable doubt. I am satisfied that the objective elements of the offence of attempted murder are established beyond reasonable doubt. Pursuant to s 269GA(2) of the CLCA, I record a finding that the objective elements of the offence of attempted murder are established. Consequent upon this finding the offences charged in the alternative are not proceeded with.

   Trial of Josiah Smailes’ mental competence

5. Mr Smailes acknowledges he bears the onus of displacing the presumption of mental competence to commit the offence pursuant to s 269D of the CLCA.

6. Mr Smailes seeks, and the prosecution does not object to, the tender of the report of the psychiatrist Dr Amisha Jayawant dated 5 April 2021.  Accordingly, I receive it into evidence.

7. Pursuant to s 269GB(1) of the CLCA, I have had regard to Dr Jayawant’s report and the representations put by the prosecution and Mr Smailes on the question of Mr Smailes mental competence to commit the offence of attempted murder.

8. Dr Jayawant reports Mr Smailes has an established diagnosis of schizophrenia and autism spectrum disorder.

9. It is Dr Jayawant’s opinion that at the time of the conduct giving rise to the charge of attempted murder (“the conduct”) Mr Smailes was experiencing a relapse of schizophrenia.  Dr Jayawant considers that whilst Mr Smailes was aware of the nature and quality of his actions and was not totally unable to control his conduct, his ability to reason whether the conduct was wrong as perceived by reasonable people was impaired.  Accordingly, Dr Jayawant considers that Mr Smailes does not know that his conduct was wrong. 

10. I accept the evidence of Dr Jayawant.

11. Noting Mr Smailes and the prosecution agree that the investigation into Mr Smailes’ mental competence to commit the offence of attempted murder can be dispensed with, pursuant to s 269GB(5)(a) of the CLCA, I dispense with the investigation into Mr Smailes’ mental competence to commit the offence.

12. I find Mr Smailes has a mental impairment as defined by s 269A of the CLCA. I find that at the time of the conduct Mr Smailes was suffering a mental impairment and in consequence of the mental impairment he could not, pursuant to s 269C(1)(b) of the CLCA, reason about whether the conduct, as perceived by reasonable people, was wrong.

13. I declare, pursuant to s 269GB(5)(b) of the CLCA, that Mr Smailes was mentally incompetent to commit the offence of attempted murder and I find Mr Smailes not guilty of attempted murder and declare him liable to supervision under Division 4 Subdivision 2 of the CLCA.

14. I list this matter for submissions regarding disposition under Division 4 Subdivision 2 of the CLCA.

15. As I have declared Mr Smailes liable to supervision but the question of disposition is yet to be determined, I make an order pursuant to s 269X(2)(b) of the CLCA committing him to custody (being an appropriate form of custody determined, from time to time, by the Minister responsible for the administration of the Mental Health Act 1993 (SA)).