R v Steele
[2012] SASC 55
•5 April 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v STEELE
[2012] SASC 55
Reasons for Decision of The Honourable Justice Gray
5 April 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC
MENTAL HEALTH - DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY
The defendant was charged with murder - the defendant elected to proceed to trial by Judge alone - the defendant was found to be mentally incompetent to have committed the offence as charged pursuant to section 269FA(5)(b) of the Criminal Law Consolidation Act 1935 (SA) - the defendant was found to have committed the objective elements of murder under section 269FB(ii) of the Criminal Law Consolidation Act - the defendant was found not guilty of murder but declared to be liable for supervision under Part 8 of the Criminal Law Consolidation Act with a limiting term of life.
Criminal Law Consolidation Act 1935 (SA) s 11, s 269, s 269A, s 269C, s 269D, s 269E, s 269F, s 269FA, s 269FB, s 269H, s 269M, s 269MB, s 269O, s 269P, s 269Q, s 269R, s 269T and s 269S, referred to.
R v Bober (No 3) [2010] SASC 31; R v Porter (1933) 55 CLR 182; R v Draoui (2008) 101 SASR 267; R v Zilic [2010] SASC 70, considered.
R v STEELE
[2012] SASC 55Criminal
GRAY J.
The defendant, Matthew Robert Steele, was charged with the offence of murder.[1] Particulars of the offence were that the defendant on 21 June 2006 at Clearview murdered Umberto Crisante. The defendant elected to be tried by judge alone. The defendant pleaded not guilty.
[1] Criminal Law Consolidation Act 1935 (SA) section 11.
The defendant admitted that the elements comprising the actus reus of the offence were admitted. The defendant accepted that there was no lawful excuse for his conduct. However, it was asserted that the defendant should be found not guilty of the offence of murder on the ground of mental incompetence.
Legislative Scheme
Before addressing the issues arising in this matter, it is convenient to briefly set out the applicable legislative scheme.
Part 8A of the Criminal Law Consolidation Act provides a scheme for the detention or release of defendants who suffer a mental impairment and as a consequence are acquitted of the charged offence. In Bober (No 3),[2] I conducted a review of the scheme provided by Part 8A, with particular emphasis on the process of setting a limiting term. In the course of this analysis, I outlined the legislative history and background to the introduction of Part 8A and considered the authorities which have addressed the provisions.
[2] R v Bober (No 3) (2010) 107 SASR 165.
As a consequence of this analysis, I identified the following relevant principles:[3]
[3] R v Bober (No 3) (2010) 107 SASR 165, [12].
·Part 8A of the Criminal Law Consolidation Act has a primary concern with ensuring the safety of the community.[4]
·Part 8A has introduced a legislative scheme for dealing humanely with the mentally impaired.[5]
·Part 8A invests the court with the responsibility of making findings with respect to mental impairment. This may involve a mental impairment affecting the ability to form the necessary intent to commit a crime[6] as well as a mental impairment affecting a person’s ability to enter a plea to a charge.[7]
·Once a finding of mental impairment has been made, the court, if it has not already done so, is obliged to consider whether the objective elements of the charged offence have been established.[8]
·If the court so concludes, then the court is obliged to record a finding to the above effect and to declare a defendant liable to supervision under Part 8A.[9]
·Following the making of such a declaration, the court is invested with a discretion to either release a defendant unconditionally, or to make a supervision order.[10]
·The supervision order can either commit a defendant to detention under Part 8A or alternatively order the release of the defendant on licence on conditions decided by the court.[11]
·On the making of a supervision order, the court is obliged to fix a limiting term. [12] This term limits the period during which the supervision order is in force. At the end of the limiting term, the supervision order lapses.[13]
·The court retains a discretion on the application of the Crown, the defendant, the Parole Board, the Public Advocate, or any person with a proper interest, to vary or revoke a supervision order, and if revoked, make in substitution any other order that the court might have made at first instance.[14]
·When fixing a limiting term, the court engages in a process that is the subject of express statutory provision. The process involves a consideration of the period of imprisonment 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.[15]
[4] Criminal Law Consolidation Act 1935 (SA) section 269S; R v Draoui (2008) 101 SASR 267, [44].
[5] South Australia, Parliamentary Debates, Legislative Council, 14 November 1995, 398 (Hon K T Griffin, Attorney-General); South Australia, Parliamentary Debates, Legislative Council, 3 August 1994, 33-34 (Hon K T Griffin, Attorney-General).
[6] Criminal Law Consolidation Act 1935 (SA) section 269C.
[7] Criminal Law Consolidation Act 1935 (SA) section 269H.
[8] Criminal Law Consolidation Act 1935 (SA) sections 269F, 269M.
[9] Criminal Law Consolidation Act 1935 (SA) section 269MB(2).
[10] Criminal Law Consolidation Act 1935 (SA) section 269O(1).
[11] Criminal Law Consolidation Act 1935 (SA) section 269O(1)(b); see also section 269Q which provides:
(1)If a defendant is declared to be liable to supervision under this Part, the Minister must, within 30 days after the date of the declaration, prepare and submit to the court by which the declaration was made a report, prepared by a psychiatrist or other appropriate expert, on the mental condition of the defendant containing—
(a) a diagnosis and prognosis of the condition; and
(b) a suggested treatment plan for managing the defendant's condition.
(2)If a supervision order is made against the defendant, the Minister must arrange to have prepared and submitted to the court, at intervals of not more than 12 months during the limiting term, a report containing—
(a) a statement of any treatment that the defendant has undergone since the last report; and
(b)any changes to the prognosis of the defendant's condition and the treatment plan for managing the condition.
[12] Criminal Law Consolidation Act 1935 (SA) section 269O(2)
[13] Criminal Law Consolidation Act 1935 (SA) section 269O(3)
[14] Criminal Law Consolidation Act 1935 (SA) section 269P.
[15] Criminal Law Consolidation Act 1935 (SA) section 269O(2).
The principles as identified above were relevant to the consideration of the issues arising with respect to the defendant. A number of further principles were outlined in relation to the process whereby a limiting term is to be set. It is unnecessary to include these matters as in the present proceeding – the relevant limiting term applicable is one of life.[16]
[16] That is, the sentence of imprisonment referable to the offence of murder is life imprisonment: Criminal Law Consolidation Act 1935 (SA) section 11.
Mental Competence
Where a defendant’s mental competence is at issue, the court has a discretion to proceed first with the trial of the objective elements of the offence, or alternatively with the trial of the mental competence of the defendant.[17] With the consent of both the Director and the defendant, I proceeded first with the trial of the mental competence of the defendant. The Director accepted that the evidence that was proposed to be led in the trial would establish that the defendant was not mentally competent to commit the offence of murder.
[17] Criminal Law Consolidation Act 1935 (SA) section 269E.
Before discussing the evidence led on the issue of mental incompetence, it is important to note that a person’s mental competence to commit an offence is to be presumed unless the person is found, on an investigation under the relevant division, to have been mentally incompetent to commit the offence.[18]
[18] Criminal Law Consolidation Act 1935 (SA) section 269D.
At the time I recorded my finding that the defendant was mentally incompetent to commit the crime of murder, it was agreed by counsel that I proceed pursuant to section 269F(5)(a) and dispense with an investigation into the defendant’s mental competence to commit the offence as there had already been an investigation conducted into the defendant’s mental competence pursuant to an earlier order of the Court. As a result of that order, three psychiatric reports were tendered to the Court. Those reports were of Craig Raeside – 1 August 2007, Chris Branson – 26 March 2008, and Kenneth O’Brien - 31 March 2008.
Pursuant to section 269C, a person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and in consequence of the mental impairment does not know the nature and quality of the conduct; or, does not know that the conduct is wrong; or, is unable to control the conduct.
Section 269A defines “mental impairment” as including:
(a) a mental illness; or
(b) an intellectual disability; or
(c) a disability or impairment of the mind resulting from senility,
but does not include intoxication;
“Mental illness” is additionally defined in section 269A as follows:
mental illness means a pathological infirmity of the mind (including a temporary one of short duration)1;
...
Note—
1A condition that results from the reaction of a healthy mind to extraordinary external stimuli is not a mental illness, although such a condition may be evidence of mental illness if it involves some abnormality and is prone to recur (see R v Falconer (1990) 171 CLR 30).
It is to be noted that in the present matter, the defence primarily relied upon was that the defendant did not know that his conduct was wrong, or alternatively, was unable to control his conduct.
The test for knowledge of wrongfulness of conduct was expressed by Dixon J in Porter in the following manner:[19]
The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the issue, the real question in this case. Was his state of mind of that character? … I have used the expression "know," "knew that what he was doing was wrong." We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.
[19] R v Porter (1933) 55 CLR 182, 189-190.
In respect of the level of control of conduct required in order for the defence pursuant to section 269C(c) to be available, Nyland J made the following apposite remarks in Zilic:[20]
In my opinion the law requires there to be a total lack of control in order for a defendant to avail him/herself of a defence pursuant to s 269C(c) CLCA. Although there is evidence that the defendant had some inability to control his actions when he killed his son, I do not consider that the impairment of control described by the medical practitioners is such as to provide the defendant with a defence to the charge, pursuant to the provisions of s 269C(c).
[20] R v Zilic [2010] SASC 70, [80].
The report of Dr Raeside comprehensively outlined the defendant’s background and mental condition. Dr Raeside outlined the defendant’s longstanding involvement with mental health services. Earlier admissions for self-harm were not attributed to a diagnosed psychiatric illness, but rather to alcohol abuse and poor impulse control together with an underlying personality disorder. During the 1990s the defendant was diagnosed with social phobia. He believed that much of his alcohol and drug abuse was an attempt to self-medicate his anxiety symptoms.
Dr Raeside outlined that the defendant had explained that in the recent years, he had begun hearing voices, like a newsreader’s voice, telling him that he was a bad person for smoking marijuana, or a good person when he went to work. The defendant believed he could communicate with the refrigerator and became increasingly paranoid about his safety, particularly about people following him. The defendant indicated that the use of amphetamines increased his paranoia and made him more anxious and sometimes made the voices worse. The defendant attributed his longstanding abuse of amphetamines to the onset of his paranoia and the voices, although he indicated that he was not using amphetamines at the time of the offence.
With respect to the defendant’s behaviour prior to the offence, Dr Raeside summarised it as follows:[21]
When I first interviewed Mr Steele on 8/8/06 he began his account by telling me that for a while he thought he was being followed around by people, no-one in particular, just those he classed as “bad people”. He told me this was “fairly full on” for about a month prior to the alleged offence. He tried to get “stuck into work”, by spending increasing amounts of time and energy on “trying to keep safe, stay close to my family, and the few friends I had”. …
…
On the day in question Mr Steele woke early, but had not slept well. He remained quite paranoid about “bad people” and spent the day walking around “a fair bit”. He was living in a boarding house at Clerview [sic], with his parents living a few houses down from where the victim lived. Mr Steele walked to the cemetery and whilst there “read all the Red Shield plaques” and had a general look around as well. However, he became increasingly fearful that cars were following him, which he seemed to associate with having “spent so much time at my brother’s grave that people might have thought I had a death wish”.
Subsequently, Mr Steele walked back to his parents’ house, during which time he said he picked up a hammer in a toolbox which he used for protection. He said he walked up his mother’s driveway, but when she called out he walked off and began walking on the opposite side of the road. He recalled seeing a person who looked like someone in one of the cars that were following him and saw something shiny in his hand, but he was not sure if it was a knife or a gun. In retrospect he thought it might have been secateurs. However, this man was standing, walking towards him on the driveway so Mr Steele walked up to him and quickly hit him once on the head causing him to fall over. He then hit him a few more times, once in the cheek and the rest in his head. He believed that he might have called the man “a dog” at the end before walking off. He recalled seeing the man’s wife walking out of the house.
[21] Report of Dr Craig Raeside, dated 1 August 2007, pages 10-11 (hereinafter “Dr Raeside report”).
In a later interview, Dr Raeside sought further detail from the defendant about what had happened prior to the attack on Mr Crisante and recorded the following further information:[22]
He told me that as his mother called out when he walked down the driveway he told her that he would be “back in a minute” as he wanted to see the person who he thought was chasing him and wanted to “put an end to it”. He said that as he walked up the victim’s driveway “he popped out from behind a bush and I saw what I thought was a gun so I hit him with the hammer”. He said when the man’s wife came out he “realised I hurt him and I had done what I intended to do, so I walked off”. He told me he went back to his boarding house, but did not have a key and could not get in, so he went to the nearby Enfield Hotel where he had a beer, thinking about what had happened. He said this caused him to “spin out a bit, but in a way I was happy thinking it was over. I didn’t think I had killed him at that time, just thought I hurt him badly. I though this guy would get the word around to everyone to stop following me”.
[22] Dr Raeside report, pages 11-12.
Dr Raeside had regard to further materials, including a record of interview with the defendant’s parents, the prison medical file including notes from previous interviews with the defendant, and witness statements, before arriving at his conclusions and recommendations.
With respect to a diagnosis, Dr Raeside concluded:[23]
Mr Steele has previously been diagnosed with a Mixed Personality Disorder with Antisocial and Narcissistic Personality Traits. This personality disorder had rendered him more vulnerable to depressive episodes and anxiety symptoms, which he has attempted to self-medicate with illicit drugs and alcohol.
The history suggests drug-induced psychotic episodes at times, possibly in the month leading up to the alleged offence. However, his history of aggression appears to be a function of his poor impulse control and low frustration tolerance, together with disinhibiting effects of alcohol. Additionally, his personality disturbance adversely affects his interpersonal relationships, leading to increased stress and, together with his difficulty controlling this stress, towards self-destructive or outwardly aggressive behaviour.
[23] Dr Raeside report, page 21.
Dr Raeside made the following observations as to the defendant’s mental competence:[24]
Clearly an important part of the current assessment is whether Mr Steele was psychotic, or suffering any psychiatric disorder, at the time of the alleged offence. As indicated, there is evidence to suggest a deterioration in his mental state during the month preceding the incident, which was probably a function of the stress of the break-up of the relationship together with alcohol and amphetamine and cannabis use. His reported behaviour in the days preceding the alleged offence and on the day itself suggests unusual features which would be consistent with an underlying drug-induced psychosis of variable intensity. Certainly his parents appeared increasingly concerned about him as they observed a deterioration.
Therefore, for current purposes I would be prepared to accept that Mr Steele was experiencing a drug-induced psychosis at the time of the alleged offences, although this view should be tempered by the seeming lack of overt psychotic features upon his arrival at the Adelaide Remand Centre and the negative drug screen. However, I note in an unusual presentation and thought he was somewhat guarded. Therefore, there may have been psychotic features present, which were not readily identifiable, but by this itself would seem to suggest they were not extreme. He was only transferred to James Nash House some time later after psychotic features became more evident.
Notwithstanding Mr Steele’s description of persistence of psychotic symptoms after ceasing amphetamines previously I would not be prepared to diagnose Schizophrenia, although I think this is a working diagnosis at James Nash House currently. Rather, he may have developed a schizophrenia-like condition due to the long-term effects of amphetamines on him. Nevertheless, for current legal purposes I believe he was suffering from a mental impairment at the time of the alleged offence and that he continues to suffer some degree of ongoing psychiatric disturbance.
[24] Dr Raeside report, pages 21-22.
Dr Raeside considered that the motive for the defendant’s behaviour was to be found in his underlying paranoid delusional ideas, but that the defendant had knowledge of the nature and quality of his actions in striking Mr Crisante with a hammer. However, with respect to knowledge of the wrongfulness of his actions, Dr Raeside considered that it was less clear whether the defendant knew his actions to be wrong. Although the defendant seemed to feel justified in his actions based on his paranoid delusional ideas, his actions in attempting to clean the blood and hiding the hammer, suggested that he had knowledge of the wrongfulness of his actions. Ultimately Dr Raeside recorded that he was left with a significant degree of indecision in this regard and would “tentatively offer an opinion that the defendant was unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions”.[25] Dr Raeside emphasised that this opinion was based on the balance of probabilities. As a consequence, Dr Raeside supported a mental incompetence defence in the matter with the reservations as explained.
[25] Dr Raeside report, page 23.
Dr Branson also assessed the defendant’s competence to commit the offence. In his preliminary observations, Dr Branson noted that the appropriate diagnosis for the defendant was one of chronic paranoid schizophrenia:[26]
…Mr. Steele has an extensive history of contact with the Mental Health Services, dating back approximately to the age of 19 years. It appears that some of his first contacts were related to aggression (particularly directed against himself) whilst under the influence of alcohol and sometimes other drugs such as amphetamines. More recently, however, certainly over the last couple of years, there have been episodes of paranoid psychosis, sometimes associated with amphetamine intoxication but also in the absence of any recent amphetamine usage. It now seems clear that the appropriate diagnosis is of Chronic Paranoid Schizophrenia but the exact date of origin of this condition is difficult to assess in someone who has abused amphetamines, as the symptoms may be quite similar. …
[26] Dr Chris Branson report, dated 26 March 2008, pages 2-3 (hereinafter “Dr Branson report”).
Dr Branson outlined aspects of the defendant’s behaviour consistent with this diagnosis, both leading up to the offence and thereafter:[27]
In particular, Mr. Steele told me that he believed (and indeed still believed at the time of my interview with him) that he was being followed by a group of people who meant him some harm. He said that it was not clear to him why this was happening or what the common characteristics of this group of people might be. He said in particular that it seemed to him that he was being followed by certain cars in his local neighbourhood, and it also seemed that some of the people with whom he was living in the boarding house were part of this conspiracy. He said that it appeared that various people would “play tag team” in that someone would appear to be following him but then they would disappear and someone else would take over the pursuit.
In addition to the above, Mr. Steele told me that he was hearing voices for several weeks before the offence. He said the voice was lie a newsreader in his head, describing him and commenting about him. For example, he said that he voice would say either that he was a good person or a bad person and this was interspersed with words that were mumbled, that he could not understand. He sad that this made him extremely uneasy and he wondered how this related to the people who he believed were following him. Mr. Steele told me that the voices continued to affect him at the time of our interview although to a significantly lesser degree.
…
After arriving at the Adelaide Remand Centre, Mr. Steele told me that he spent most of his time in the infirmary at that institution. It appears that it was obvious to staff there that your client was significantly psychiatrically unwell. Mr. Steele told me that he was getting into fights with people regularly as they all seemed to be talking about him. He felt very paranoid about other inmates and about the officers. Eventually, he was seen by Dr. Raeside who organised his immediate admission to James Nash House.
Mr. Steele has remained at James Nash House since that time. If his mental health was good enough, it would be quite normal for him to be transferred back to the Adelaide Remand Centre with regular follow-up form one of the psychiatrists who visits that institution. However, this has not occurred and must, in my opinion, be an indication of how significantly psychiatrically disordered your client remains even over 18 months after his arrest.
Mr. Steele told me that it had been established that there was no amphetamine in his system at the time of his arrest. It is clear from reading the medical files that your client’s mental state did not improve over the course of a number of days following his arrest, which is what would be expected if his mental state abnormalities were due to amphetamine intoxication, or intoxication with other drugs. It now seems very clear that he has an established diagnosis of Chronic Paranoid Schizophrenia, and the course of his illness since his arrest would strongly support that diagnosis.
[27] Dr Branson report, pages 3-4, 6.
With respect to diagnosis, Dr Branson made the following further observations:[28]
I believe there is no doubt that Mr. Steele suffers from Chronic Paranoid Schizophrenia. The making of this diagnosis has been delayed beyond that which would normally occur because of the confounding variable of your client’s amphetamine usage. The extent to which his amphetamine usage has led to his mental illness is not completely clear, as previously explained. Nevertheless, this does not alter the fact that he currently suffers from a significant, treatment resistant psychotic illness, and it seems clear that his has been the case for at least the last couple of years.
At the time of the offence, there is no doubt in my mind that Mr. Steele was very seriously psychotic and certainly “out of touch with reality”. Whilst in one sense he had sought out the victim, he was doing this on the basis of completely delusional beliefs. He believed that there was a need to protect himself against some potential perceived attack, which explains why he had taken a weapon with him. Mr. Steele felt justified and relived in doing what he had done, whilst at the same time partly recognising the gravity of this and the potential consequences.
…
[28] Dr Branson report, page 9.
Dr Branson considered that the defendant had available the defence of mental incompetence, making the following conclusions and recommendations:[29]
Your client, Matthew Steele, suffers from Chronic Paranoid Schizophrenia and was very seriously psychotic at the time of the killing of the victim of the offence.
Chronic Paranoid Schizophrenia is a mental impairment in terms of Section 269 of the Criminal Law Consolidation Act. There is no evidence, in my opinion, that your client’s conduct at the time of the offence was influenced by amphetamine or other drug intoxication, but it seems very clear that it was influenced by his psychotic symptoms, especially delusions and hallucinations of a significant degree.
Whilst your client would have been able to understand the nature and quality of the act that constituted the offence, I do not believe that he would have been able to reason with a moderate degree of sense and composure about its wrongfulness. Certainly there is some evidence of a partial understanding of its wrongfulness in the sense that he disposed of the weapon, but he nevertheless felt himself justified as having acted in self defence. This belief is based entirely on delusional ideas.
It is unclear as to whether your client would satisfy the third criterion of a defence of mental incompetence (i.e. that he was unable to control his conduct) as the meaning of this term is extremely problematic with regard to psychiatric assessment. However, in a general sense I believe it is clear that Mr. Steele’s psychosis would have rendered him unable to control his conduct at least to the extent that an average person would have been able to.
For the above reasons, I believe that your client is entitled to a defence of mental incompetence on the charge of murder.
[29] Dr Branson report, pages 9-10.
Dr O’Brien assessed the defendant some time after the previous assessments and at a time when the defendant had been a patient at James Nash House. The report of Dr O’Brien confirmed the opinions of Dr Raeside and Dr Branson, that the defendant was mentally incompetent at the time of committing the offence:[30]
…I am satisfied that at the time of the attack Mr Steele was actively psychotic and his actions were determined by his conspiratorial delusional beliefs. He has been subject to these beliefs for some time prior to the incident and was becoming increasingly apprehensive and fearful. In my clinical opinion, it is more likely than not that in recent years Mr Steele has developed Paranoid Schizophrenia although an argument could be made that perhaps it is a Drug-Induced Psychosis (particularly if his narrative that he had not used amphetamines for some time prior to the murder is not correct). However, it has been necessary to keep him in James Nash House for a protracted period of time an and he has needed energetic treatment. I am confident that James Nash House for the most part is an illicit drug-free environment and particularly amphetamine-free. The continuation of his symptomatology in the absence of access to amphetamines supports the view that he now suffers form Paranoid Schizophrenia and most likely did so in an active phase at the time of the murder. Indeed, that is the opinion of both Drs Raeside and Branson. If anything, perhaps, Dr Branson had been more emphatic about this than Dr Raeside. However, both express the view that he has available to him a “mental impairment” defence and I would concur with their opinion. I do so, because Paranoid Schizophrenia is a “mental illness” within the meaning of the legislation. It is my opinion that at the material time he was suffering from this illness and its presence resulted in him being unable to understand the wrongfulness of his conduct in the sense that he could not reason about it “with a moderate degree of sense and composure”. Furthermore, it would be my opinion that he knew the nature and quality of his conduct and most likely could have controlled that conduct, albeit with some difficulty. However it is the “wrongfulness” limb of the test that I believe affords him a “mental impairment” defence.
[30] Dr Kenneth O’Brien report, dated 31 March 2008, pages 6-7 (hereinafter “Dr O’Brien report”).
It is to be noted that the authors of all three reports considered that the defendant was fit to stand trial at the time of their assessments.
The psychiatric reports provided the opinion that the defendant had a mental impairment in that he had a mental illness, which, as earlier noted, is defined as a “pathological infirmity of the mind”. The reports all provided the opinion that, despite the precise cause for the onset of the defendant’s mental impairment, he was not mentally competent at the time of committing the offence. All three psychiatrists offered the opinion that the defendant did not know that his conduct was wrong. Dr Branson additionally considered that the defendant’s psychosis would have rendered him unable to control his conduct. These opinions accord with the test for a mental incompetence defence pursuant to section 269C of the Criminal Law Consolidation Act.[31]
[31] Section 269C of the Criminal Law Consolidation Act 1935 (SA) provides:
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a)does not know the nature and quality of the conduct; or
(b)does not know that the conduct is wrong; or
(c)is unable to control the conduct.
As earlier discussed, the Director did not challenge the psychiatric evidence, but accepted that the evidence fully justified a finding that the defendant was mentally incompetent to commit the offence of the murder of Mr Crisante.
Objective Elements of the Offence
I then proceeded with the trial of the objective elements of the offence. The Director of Public Prosecutions tendered witness declarations and these were received as though the declarations were evidence given on oath in the trial. A document containing formal admissions by the defendant was also received as evidence. Those admissions were in the following terms:[32]
The accused MATTHEW ROBERT STEELE admits;
That on the 21st June 2006 at approximately 11.00 a.m. at 27 High Avenue Clearview South Australia he, without lawful excuse, attacked Umberto Crisante with a hammer.
That during the course of that attack he caused the injuries described in the report of Dr.Cala dated 16th March 2007
That Umberto Crisante died as a result of the injuries suffered in the abovementioned attack.
That Umberto Crisante died at 11.53 a.m. on the 21st June 2006 as stated in the Report of Death of Dr. Rose Skalicky of that date
[32] Those admissions were tendered pursuant to section 34 of the Evidence Act 1929 (SA) which relevantly provides:
A person may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence: Provided that the admission shall be made by the accused either personally or by his counsel or solicitor in his presence, or, in the case of a body corporate, by its counsel or solicitor.
The injuries suffered by Mr Crisante as outlined in the report of the pathologist, Allan David Cala, of 16 March 2007, included: extensive skull and facial bone fractures; cerebral swelling; haemorrhaging; contusions to the brain; facial and head lacerations and left arm injuries consistent with being defensive wounds. The degree of force required to inflict the facial and head injuries was assessed to be severe to extreme.
As earlier mentioned, declarations were tendered by the prosecution and admitted into evidence without opposition, in addition to admissions from the defendant. The declarations were received as though they were given by the witnesses as sworn evidence. The receiving of the declarations into evidence and the reading of the defendant’s admissions satisfied the requirement outlined in section 269FB(1) that:
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.
It was on the basis of the declarations and the admissions of the defendant read in Court that I made the finding that I was satisfied that the objective elements of the offence of murder were established beyond reasonable doubt. It is to be emphasised that it was accepted that the defendant was fit to stand trial and as a consequence, the admissions made could be acted upon.
The declarations included those of arresting police officers, the declaration of the widow of Mr Crisante, of her neighbours who attended on her husband shortly following the assault, of medical practitioners involved in the examination of Mr Crisante and of residents of the boarding house at which the defendant lived. It is unnecessary to outline the contents of each declaration, however it is appropriate to outline a summary of the more important facts and circumstances established by those declarations.
The defendant was apprehended by police in the vicinity of the address at which the assault on Mr Crisante occurred. Police officers were conducting a mobile patrol of the area in an attempt to locate the suspect of the assault when they observed a male, later identified as the defendant, walking along the road. The police approached the defendant. During the conversation with the defendant, one police officer observed that the defendant appeared to be avoiding eye contact and to be nervous. The defendant was wearing blue sports pants with white areas down the sides. The white areas could be covered when the zips were closed. During the conversation, the defendant attempted to zip close the side of his pants. At this stage, the officer observed red marks on the white areas of the defendant’s pants which appeared to be blood spatter marks. Similar markings were apparent on his jumper. The defendant was subsequently arrested and charged.
The widow of Mr Crisante in her statement described being inside at a time when her husband had gone outside for the purpose of picking mandarins from the tree in their yard. She described hearing two loud screams. She quickly ran outside. She saw a man walking in the driveway towards the front driveway gate. He appeared to be walking at a normal walking pace. The widow asked the man “where’s my husband?”. The man looked towards her and said “[h]e’s alright now”. The widow noted that the man held a hammer in his right hand, the head of which was red in colour. Following the short conversation, the man continued to walk away. The widow did not watch him walk away, intending to look for her husband. On turning to walk down the driveway, she noticed her husband behind the mandarin tree. She ran to him and saw blood on his face. He was not moving or responding and she attempted cardiopulmonary resuscitation until the arrival of the ambulance. The widow identified the defendant from a photographic identification folder as being the man she saw leaving her property.
A hammer was found in the garbage bin at an address near to where the attack occurred. There appeared to be blood on the hammer. The injuries of Mr Crisante were consistent with having been inflicted with a hammer. There was evidence indicating that the defendant had been carrying a hammer.
A number of witnesses observed a man fitting the description of the defendant in the neighbourhood shortly after the attack on Mr Crisante.
It is apparent that the defendant’s parents resided near the premises at which the defendant attacked Mr Crisante. The defendant’s parents outlined their concern about the defendant’s mental state in the weeks prior to the attack on Mr Crisante. They described his behaviour as being erratic. His mother’s statement notes that “[o]ver the last week I saw [the defendant] starting to be in his psychosis again. It is a gradual progression that gets worse over the days”. She further outlined the defendant’s behaviour shortly before the attack, where the defendant was behaving so unusually that she called her husband to tell him that “something wasn’t right with [the defendant] and that we have to call someone”. The defendant’s father similarly observed that in the weeks prior to the attack, the defendant “seemed to have been more confused that normal”. The defendant’s father outlined his concerns regarding a large number of strange and cryptic text messages sent by his son, and other erratic behaviour.
There was evidence provided by a resident at the boarding house at which the defendant resided as to the defendant’s unstable behaviour, including mood swings and violent and aggressive behaviour. Further evidence in relation to his behaviour was provided by a former partner, who indicated that she considered he had a mental condition.
The reports of Dr Raeside, Dr Branson and Dr O’Brien earlier referred to, in addition to outlining the defendant’s mental competence to commit the offence, outlined the sequence of events leading to the death of Mr Crisante. Those reports provide the context to the declarations which provide evidence of the defendant’s involvement in the attack.
Having regard to the content of all the declarations and the admissions of the defendant provided in Court, I was satisfied beyond reasonable doubt that the objective elements of the offence of murder had been established, and I recorded a finding to that effect pursuant to section 269FB(2).[33]
[33] Section 269FB(2) of the Criminal Law Consolidation Act 1935 (SA) provides:
…
(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.
Pursuant to section 269FB(3),[34] the consequence of my finding as to the defendant’s lack of mental competence and satisfaction with respect to the establishment of the objective elements of the offence, was to find the defendant not guilty of the offence, but declare him to be liable to supervision under Part 8A of the Criminal Law Consolidation Act.
[34] Section 269FB(3) of the Criminal Law Consolidation Act 1935 (SA) provides:
…
(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.
...
On 21 May 2008 I recorded my finding that the defendant was mentally incompetent to commit the offence the subject of the information pursuant to section 269FA(5)(b) of the Criminal Law Consolidation Act 1935 (SA).
On 18 July 2008, following the receipt of further materials, including a victim and next of kin counselling report,[35] victim impact statements, an antecedent report of the defendant and a further psychiatric report,[36] I made an order pursuant to section 269O(1)(b)(i) committing the defendant to detention under Part 8A of the Criminal Law Consolidation Act. I fixed a limiting term of life.
[35] Section 269R of the Criminal Law Consolidation Act 1935 (SA) 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
[36] Prepared pursuant to section 269Q of the Criminal Law Consolidation Act 1935 (SA).
These are my reasons for the finding that the defendant was mentally incompetent to commit the offence of murder, for the finding that I was satisfied that the objective elements of murder had been established beyond reasonable doubt and for the order committing the defendant to detention with a limiting term of life.
Supervision of the Defendant
Division 4 of Part 8A of the Criminal Law Consolidation Act is entitled “Disposition of persons declared to be liable to supervision under this Part”. Section 269O outlines the actions available to a court, having declared an individual liable to supervision under Part 8A of the Act. Pursuant to section 269O, when a person is declared liable to supervision under Part 8A of the Criminal Law Consolidation Act, the court may release the person unconditionally or make a supervision order, either committing the person to detention under Part 8A or releasing the person on licence subject to conditions decided by the court. Section 269O 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 established1.
(3)At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
Note—
1The 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.
If a defendant is declared to be liable to supervision under Part 8A, the Minister must, within 30 days after the date of the declaration, prepare and submit to the court a report, prepared by a psychiatrist or other appropriate expert, on the mental condition of the defendant. That report is to contain a diagnosis and prognosis of the defendant’s mental condition and a suggested treatment plan for managing that condition.[37]
[37] Section 269Q of the Criminal Law Consolidation Act 1935 (SA) relevantly provides:
Section 269R further requires the preparation of a report on the views of the next of kin of the defendant and of the next of kin of the victim killed as a result of the conduct of the defendant.[38] Both the further report on the defendant’s mental condition prepared by the appropriate expert and the report pursuant to section 269R were before me.
[38] Section 269R of the Criminal Law Consolidation Act 1935 (SA) relevantly provides:
(1)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.
(2)A report is not, however, required under this section if the purpose of the proceeding is—
(a)to determine whether a defendant who has been released on licence should be detained or subjected to a more rigorous form of supervision; or
(b) to vary, in minor respects, the conditions on which a defendant is released on licence.
The victim and next of kin report disclosed the ongoing grief suffered by Mr Crisante’s family in this matter. The report disclosed that the family continued to be traumatised by their loss despite the assistance of professional support. The family were opposed to my finding with respect to the mental competence of the defendant, as they felt that the defendant had been absolved of guilt associated with his actions and would not be imprisoned at any stage. The author of the report noted that this angered the family greatly. The family expressed the opinion that the defendant should be returned to prison once his mental state improved. The family expressed a strong wish that the defendant not be released from detention, particularly pointing to his violent history. The family had concerns about the community’s safety should the defendant be released in the future, stating that it was evident that support and supervision may not be sufficiently provided. The family indicated that as the Court had found the defendant not guilty by reason of mental impairment, he should be required to engage in psychiatric treatment and comply with medication.
The report outlined the ongoing stress experienced by the defendant’s parents following the attack on Mr Crisante by their son. They outlined the grief experienced by the loss of their son as a consequence of his detention in James Nash House. The defendant’s parents further recounted that they had moved house following the attack on Mr Crisante by their son. They had received threatening letters from anonymous writers, labelling them “murderers” and their son a “psycho”. The defendant’s parents were relieved that their son has been able to access support and psychiatric treatment at James Nash House, but were exasperated that such an extreme situation had to occur before this assistance was rendered. They had sought assistance for the defendant on several occasions in the past but had been disappointed and frustrated with the response from professional organisations within the mental health system. They felt that they had been let down by the system.
A report of a forensic psychiatrist, Narain Nambiar, was provided outlining a diagnosis and prognosis of the defendant’s condition and a suggested treatment plan.
Dr Nambiar expressed a diagnosis in the following terms:[39]
For the purpose of assessing Mr Steele’s mental state at the material time of the offence I reviewed the previous reports provided by the court. It is clearly simple conjecture with regards to Mr Steele[’s] former diagnosis and as to whether the psychotic episode he was experiencing at the time of the offence was primarily due to a schizophrenic illness. Ultimately Mr Steele’s persistence of psychotic symptoms over a prolonged period of time including during a period of abstinence following his admission to James Nash House support a diagnosis of schizophrenia. In my opinion, although Mr Steele may have experienced drug induced episodes of psychosis in the past it seems apparent to me that it is more likely that he has in fact developed schizophrenia.
It is also significant to note that Mr Steele has a history of a dysfunctional personality with antisocial and borderline traits.
[39] Dr Narain Nambiar report, dated 1 July 2008, page 3 (hereinafter “Dr Nambiar report”).
With respect to the defendant’s prognosis, Dr Nambiar stated:[40]
Mr Steele’s prognosis is at this stage unclear. Significant poor prognostic factors are a pre-morbid history of personality dysfunction with prominent Antisocial and Borderline features. Other negative aspects to his past history include polysubstance abuse and episodes of self harm and aggression. Mr Steele’s response to treatment has been more impressive over the last few months as compared to relatively poor in the first 18 months of his treatment at James Nash House. At this stage his form of schizophrenia would appear to be somewhat treatment resistant and he may continue to have some residual features of schizophrenia for the rest of his life. It would be imperative that Mr Steele remains completely free of illicit substances and alcohol and that he is taught the early warning signs of his illness and how to deal with stress and anxiety in order to reduce the risks of relapses.
It was noted that the defendant appears to be genuinely remorseful about his actions, keen to make amends and engage in further treatment.
[40] Dr Nambiar report, page 4.
Finally, Dr Nambiar provided the following opinion and recommendations regarding the treatment of the defendant:[41]
At the present time I would advocate for Mr Steele being committed to detention to remain at James Nash House for a significant period of time during which time he will undergo successive trial with medication, undergo a full multidisciplinarian care plan assessment with a risk management plan devised in preparation for his eventual transition into the community.
[41] Dr Nambiar report, page 5.
When making an order under Division 4 of Part 8A, the court is directed to apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.[42] The matters which the court is to have regard are relevantly outlined in section 269T as follows:
(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.
…
[42] Criminal Law Consolidation Act 1935 (SA) section 269S; R v Draoui (2008) 101 SASR 267, [44] (Sulan J).
Having regard to the medical reports before the Court, it was apparent that the nature of the defendant’s mental impairment meant that he is likely to remain a danger to the community if released. Dr Nambiar noted that the defendant’s form of schizophrenia appeared to be “somewhat treatment resistant”. Dr Nambiar’s report suggested that the defendant’s mental impairment would continue if the defendant did not remain free from illicit substances and alcohol. As a consequence, Dr Nambiar further considered it imperative that the defendant learn the early warning signs of his illness and how to deal with stress and anxiety. Again these matters suggested that the defendant’s condition was not able to be independently managed and he would continue to be a threat to the safety of the community if released. Having regard to the prognosis provided by Dr Nambiar, it was apparent that the defendant required ongoing supervision at that stage to manage his mental illness. As a consequence, I made a supervision order committing the defendant to detention under Part 8A of the Criminal Law Consolidation Act.
As earlier set out, pursuant to section 269O(2) of the Criminal Law Consolidation Act it was necessary for me to fix a limiting term, which is a term equivalent to the period of imprisonment or supervision that would have been appropriate if the defendant had been convicted of the offence of which the objective elements had been established. In fixing this term, I was required not to take into account the defendant’s mental impairment. The objective elements of the crime of murder have been established and accordingly the limiting term applicable was one of life.[43] As a consequence, I fixed a limiting term of life. It is further relevant to record that counsel for the defendant acknowledged that supervision for life was appropriate in the circumstances.
[43] Criminal Law Consolidation Act 1935 (SA) section 11.
Ongoing Proceedings
When a defendant is the subject of an order of ongoing detention, an obligation arises on the Minister to ensure that the defendant is psychiatrically reviewed each year and a report forwarded to the court.[44] With the exception of the year 2010 this process has been followed and the Court has been provided with annual reports addressing the defendant’s psychiatric state. I have reviewed those reports.
[44] Criminal Law Consolidation Act 1935 (SA) section 269Q.
More recently, the defendant has made application for an order for limited release on supervision pursuant to section 269P of the Criminal Law Consolidation Act. That application is presently before the Court and psychiatric reports have been prepared to assist the Court in its consideration of the application. At a recent directions hearing, further information at the Court’s request is being sought, as well as a report from the Parole Board. At the parties’ request, I publish the reasons for my conclusions that the Director had established the objective elements of the offence but that the defendant was not guilty on the grounds of mental incompetence. I also publish my reasons for committing the defendant to detention under Part 8A of the Criminal Law Consolidation Act and for fixing the limiting term of life.
(1)If a defendant is declared to be liable to supervision under this Part, the Minister must, within 30 days after the date of the declaration, prepare and submit to the court by which the declaration was made a report, prepared by a psychiatrist or other appropriate expert, on the mental condition of the defendant containing—
(a) a diagnosis and prognosis of the condition; and
(b) a suggested treatment plan for managing the defendant's condition.
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