R v Weiss - [2005] SASC 338

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v WEISS
Reasons for Decision of The Honourable Justice Bleby
6 September 2005
CRIMINAL LAW - PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS - SOUTH AUSTRALIA - GENERALLY
Defendant not guilty by reason of mental incompetence of attempted murder (s 11 and s 270A, Criminal Law Consolidation Act 1936), two counts threatening a person with a firearm (s 47A, Criminal Law Consolidation Act), discharging a firearm so as to frighten a person (s 51(1), Summary Offences Act 1953), damaging property (s 85(3), Criminal Law Consolidation Act) and two counts of possessing a firearm without a licence (s 11(1), Firearms Act 1977) – Defendant admitted objective elements of all offences – Finding defendant incompetent to commit the offences due to mental illness – Defendant declared liable to supervision under Part 8A of the Criminal Law Consolidation Act and committed to detention – Consideration of factors relevant to fixing limiting term as required by s 269O – Whether defendant should be released on licence – Consideration of factors relevant to release on licence (s 269S and s 269T Criminal Law Consolidation Act) – Effect on and responsibility of community in small country town – Determination of conditions having regard to available facilities – Limiting term of 7 years fixed – Defendant released on licence subject to conditions.
Criminal Law Consolidation Act 1936 (SA) s 11, s 47A, s 85(3), s 269G, s 269O, s 269P, s 269S, s 269T, s 270A; Summary Offences Act 1953 (SA) s 51(1); Firearms Act 1977 (SA) s 11(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v T (1999) 75 SASR 235; R v Weiss [2004] SASC 86, considered.

R v WEISS
[2005] SASC 338

BLEBY J: Trent Anthony Weiss was charged with the attempted murder of Thomas Fletcher Kerr contrary to s 11 and s 270A of the Criminal Law Consolidation Act 1936.
He was further charged with two counts of threatening Johanna Kate Kuykhoven and Glen Russell McDonald with a firearm contrary to s 47A of the Criminal Law Consolidation Act.
He was also charged with discharging a firearm so as to frighten Senior Constable Andrew David Francis contrary to s 51(1) of the Summary Offences Act 1953.
There was one charge of damaging property, being light fixtures owned by the Electricity Trust of South Australia, contrary to s 85(3) of the Criminal Law Consolidation Act.
Finally there were two counts of possessing a firearm without a licence contrary to s 11(1) of the Firearms Act 1977, one firearm being a sawn off rifle and the other being a single barrel shotgun.
All these alleged offences took place during the night of 29-30 January 2004 at Morgan, where Mr Weiss lived.
Mr Weiss pleaded not guilty to all counts by reason of mental incompetence, but through his counsel admitted the objective elements of each of the charges. The Director of Public Prosecutions conceded that he was mentally…

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 Weiss

Details

AGLC: R v Weiss [2005] SASC 338
Case: [2005] SASC 338
Decision Date: 6 September 2005

CaseChat Overview and Summary

The case of R v Weiss involved the defendant, Weiss, who was acquitted of several serious criminal charges due to being found not guilty by reason of mental incompetence. The offences included attempted murder, threatening a person with a firearm, discharging a firearm to frighten, damaging property, and possessing a firearm without a licence. The matter was heard in a South Australian court, where the defendant admitted to the objective elements of all the offences charged. The court needed to determine the appropriate legal outcomes given the defendant's mental state and the nature of the crimes.

The legal issues before the court were multifaceted, involving the determination of the defendant's mental competency, the applicability of the law concerning individuals found not guilty by reason of mental incompetence, and the subsequent steps to be taken under the Criminal Law Consolidation Act 1936. Specifically, the court had to decide on the appropriate conditions and limitations for the defendant's supervision and potential release on licence. The court needed to balance the need for public safety with the defendant's mental health needs, considering the impact on the community, particularly in a small country town.

In reaching its decision, the court meticulously considered various factors relevant to both the fixing of a limiting term and the release on licence. The court examined the defendant's mental health, the risk posed to the community, and the availability of facilities to support the defendant's supervision. The court determined that a limiting term of seven years was appropriate and that the defendant could be released on licence, subject to specific conditions designed to ensure both public safety and the defendant's well-being. The court's decision reflected a careful balance between these competing interests.

The final orders included a determination that Weiss was to be subject to supervision under Part 8A of the Criminal Law Consolidation Act 1936, with a limiting term of seven years. Weiss was to be released on licence, subject to conditions that would ensure compliance with the law and the safety of the community. These conditions were tailored to address the specific circumstances of the case, taking into account the defendant's mental health and the resources available in the local area.

Orders