R v Walsh - [2016] SASC 157

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v WALSH
Criminal Trial by Judge Alone
[2016] SASC 157
Ruling of The Honourable Justice Bampton
28 September 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
The defendant was charged with the murder of his father – he pleaded not guilty on the grounds of mental incompetence – investigation into the defendant’s mental competence dealt with by way of a Judge sitting alone – Court determined to proceed first with the question of the defendant’s mental competence to commit the offence in accordance with s 269FA of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) – Court accepted psychiatric evidence and toxicology evidence – finding recorded that defendant mentally incompetent to commit the offence of murder pursuant to s 269FA(5)(b) – finding recorded that the objective elements of the offence of murder established beyond reasonable doubt pursuant to s 269FB(2) – defendant found not guilty of the offence of murder pursuant to s 269FB(3) and declared liable to supervision under Division 4 of Part 8A of the CLCA – supervision order made and limiting term of life fixed pursuant to s 269O(2) – order made committing the defendant to detention pursuant to s 269O(1)(b)(i).
HELD:
1. The defendant was not labouring under a drug induced psychosis at the time of the conduct, he was suffering a psychotic episode as a result of schizophrenia which at the time of the conduct was undiagnosed and untreated.
2. Finding recorded pursuant to s 269FA(5)(b) that the defendant was mentally incompetent to commit the offence of murder.
3. Finding recorded pursuant to s 269FB(2) that the objective elements of the offence established beyond reasonable doubt.
4. Pursuant to s 269FB(3) defendant found not guilty of the offence of murder and declared liable to supervision under Division 4 of Part 8A of the CLCA.
5. Limiting term of life fixed pursuant to s 269O(2).
Addendum
6. Further order made on 20 December 2016 committing the defendant to detention pursuant to s 269O(1)(b)(i) until further order.
Criminal Law Consolidation Act 1935 (SA) Part 8A, s 269, referred to.

R v WALSH
[2016] SASC 157
Criminal

BAMPTON J: Cy Jacob Walsh is charged with the murder of his father, Phillip John Walsh, at Somerton Park on 3 July 2015.
Mr Walsh has pleaded not guilty, raising the defence of mental incompetence.
Mr Walsh is presumed to be mentally competent to commit an offence unless he is found on an investigation under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) to have been mentally incompetent to commit the offence.
Mr Walsh has elected to have the investigation under Part 8A dealt with by a Judge sitting alone pursuant to s 269B(1) of the CLCA.
Mental competence
I commenced an investigation into Mr Walsh’s mental competence to commit the offence pursuant to s 269B(1)(a) of the CLCA.
I accept the opinions of the forensic psychiatrists Dr Furst, Dr Brereton and Dr Nambiar who have each examined Mr Walsh. Each psychiatrist has provided a written report expressing the opinion that Mr Walsh suffers schizophrenia and at the time of the conduct alleged to give rise to the offence (the conduct) was acutely psychotic.
Dr Furst, Dr Brereton and Dr Nambiar are all of the opinion that Mr Walsh suffered a mental impairment at the time of the conduct such that he was unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions.
I also accept the toxicology evidence regarding tests performed on blood, urine and hair samples taken from Mr Walsh following the conduct confirming that he was not intoxicated by any substance at the time of the conduct.
On the basis of Dr Furst, Dr Brereton, and Dr Nambiar’s opinions, the prosecution has conceded it is open to the Court to find that, at the time of the conduct, Mr Walsh was suffering from a mental impairment such that he was unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions.
I find that Mr Walsh was not labouring under a drug induced psychosis at the time of the conduct. I find he was suffering a psychotic episode as a result of schizophrenia which at the time of the conduct was undiagnosed and untreated.
Having regard to the opinions of the three forensic psychiatrists and noting the prosecution and the defence agree, pursuant to s 269FA(5)(a) of the CLCA, I dispense with an investigation into Mr Walsh’s mental competence to commit the offence, and, pursuant to s 269FA(5)(b) of the CLCA, I record a finding that Mr Walsh was mentally incompetent to commit the offence of murder.
Objective elements
Having made the finding that Mr Walsh was mentally incompetent to commit the offence, I must inquire into whether the objective elements of the offence have been established pursuant to s 269FB of the CLCA.
Pursuant to s 269FB(1), I have had regard to the evidence and representations put by the prosecution and the defence relevant to the question of whether the Court should find that the objective elements of the offence of murder are established.
I have considered the evidence surrounding the death of Phillip Walsh. Mr Walsh stabbed his father 20 times. At least two of those stab wounds were a substantial cause of death.
Having regard to that evidence and noting that Mr Walsh, through his counsel, concedes that there is sufficient evidence to make a finding that the objective elements of the offence of murder are established beyond reasonable doubt, I am satisfied beyond reasonable doubt that the objective elements of the offence of murder are established.
I therefore record a finding pursuant to s 269FB(2) of the CLCA that the objective elements of the offence have been established beyond reasonable doubt.
Not Guilty
Having found that the objective elements of the offence of murder are established and that Mr Walsh was mentally incompetent to commit the offence of murder, pursuant to s 269FB(3), I must find Mr Walsh not guilty of the offence of murder but declare him liable to supervision under Part 8A of the CLCA.
Supervision
Having found Mr Walsh liable to supervision, I make a supervision order pursuant to s 269O(1)(b). Pursuant to s 269O(2) of the CLCA, I fix a limiting term equivalent to the period of life imprisonment, being the term of imprisonment that would have been imposed if Mr Walsh had been convicted of the offence of murder.
Upon the making of a supervision order, the Minister for Mental Health must provide the Court with a report from psychiatrist regarding Mr Walsh’s diagnosis and prognosis and a suggested treatment plan pursuant to s 269Q of the CLCA. Further, the Crown must provide a report setting out the views of Mr Walsh’s next of kin and the victims of his conduct pursuant to s 269R of the CLCA.
Victim impact statement
The prosecutor read to the Court the heart wrenching victim impact statement of Mrs Walsh pursuant to s 269R(3). Mrs Walsh spoke of the devastating loss she and her family suffer and her enduring love and support for her son.
The matter is adjourned to a hearing on Tuesday 20 December 2016 at 10.00am to receive the s 269Q and s 269R reports.
Addendum
At the adjourned hearing on 20 December 2016, I received a report pursuant to s 269Q of the CLCA prepared by the psychiatrist Dr Owen Haeney detailing Mr Walsh’s prognosis and treatment plan. I also received a report pursuant to s 269R of the CLCA setting out the views of Mrs Walsh.
Dr Haeney reports that Mr Walsh’s schizophrenia has shown reasonable response to medication and that his personality and functioning are relatively well-preserved. Dr Haeney is of the opinion that, if Mr Walsh continues to undergo his recommended treatment plan, together with support and supervision, his prognosis is reasonably positive. Having regard to Dr Haeney’s opinion, it is clear that Mr Walsh’s current treatment and rehabilitation needs require that he be committed to detention at James Nash House.
I therefore committed Mr Walsh to detention pursuant to s 269O(1)(b)(i) of the CLCA until further order.
Finally, I indicated that any application for variation of the supervision order pursuant to s 269P of the CLCA may be made to me.