R v Williams - [2017] SADC 121

District Court of South Australia
(Criminal)
R v WILLIAMS
[2017] SADC 121
Judgment of His Honour Judge Stretton (ex tempore)
13 September 2017
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - GENERALLY
Trial by judge alone of the accused's mental incompetence to commit the crime of aggravated causing harm with intent to cause harm.
Verdict: Mental incompetence not established
Criminal Law Consolidation Act 1935 ss 24(1), s 269E, s 269GB, s 269C, referred to.

R v WILLIAMS
[2017] SADC 121

STRETTON DCJ (ex tempore): Jesse Baydr Williams is charged with the offence of aggravated causing harm with intent to cause harm contrary to s.24(1) of the Criminal Law Consolidation Act 1935 (“the Act”).
Particulars of the offence are that it is alleged that on 11 December 2015 at Cheltenham he caused harm to Alaric Gomes intending to cause him harm. It is further alleged that he used an offensive weapon namely a knife to commit or when committing the offence.
He elected for trial by judge alone and accordingly the matter has proceeded before me without a jury.
On the trial of the matter the accused through his counsel raised a defence of mental incompetence pursuant to s.269E of the Act. He did that by way of two psychiatric reports each of which addressed the issue of Mr Williams' mental competence to commit the offence at the relevant time.[1]
[1] The report of Dr Owen Haeney, consultant forensic psychiatrist at James Nash House dated 30 March 2017; the report of Dr William Brereton, consultant forensic psychiatrist with Forensic Mental Services in South Australia, dated 18 July 2016.
On the basis of that material I was satisfied that the issue of mental incompetence was legitimately raised.
In those circumstances S.269E provides that the trial judge has a discretion to proceed first with the trial of the objective elements of the offence or with a trial of the mental competence of the accused. The statute provides that where the defence of mental incompetence has been legitimately raised those two trials must proceed separately.
Both counsel submitted that the court should proceed first with the trial of the objective elements of the offence and then with the trial of the defendant's mental competence. This was for two reasons: Firstly that the expert opinions of the psychiatrists were each expressed to depend to a material extent on what actually occurred on the evening in question. Accordingly the parties submitted it would be preferable to determine those facts prior to seeking the psychiatrists’ final views on the issue of the defendant's mental competence at the time of the alleged crime. The second reason was logistical in light of the fact that the doctors were not booked to attend until later in the week. I agreed with that course of action.
The trial of the objective elements of the offence was conducted yesterday and I delivered an ex tempore judgment finding the objective elements of the offence proven. It was proven beyond reasonable doubt that on 11 December 2015 at Cheltenham the accused did cause harm to Alaric Gomes. In short, it was established that he attacked and stabbed Mr Gomes with a kitchen knife and seriously injured him thereby. Given that the kitchen knife comprised an offensive weapon within the meaning of the Act, the offence was aggravated.
Accordingly, the court proceeded today to embark upon the required trial of the defendant's mental competence.
Mr Crowe and Ms Burrows for the parties took a laudably collaborative approach to the calling of evidence and both with each other's agreement outlined at the outset what their respective positions would be.
Mr Crowe's initial position was that on the anticipated evidence of Dr Brereton the accused was suffering mental impairment at the time the accused performed the physical acts as found, and that accordingly a finding on the balance of probabilities that the accused was mentally incompetent at the time of the events would be sought.
Ms Burrows' position was that based on the anticipated evidence of Dr Haeney and the totality of the circumstances, while mental incompetence was a possibility, it was more probable that at the time of the events in question the accused knew what he was doing and that it was wrong and that there was accordingly no defence of mental incompetence when one applies the statutory test.
Again by agreement, the evidence and exhibits tendered in the trial of the objective elements were re-tendered on the trial of the accused's mental competence. Ms Burrows tendered the photos, the map, the knife, the disc containing three videos of the accused taken subsequent to his apprehension by police an hour or so after the events, the transcript of proceedings which included the evidence of the victim Mr Gomes, an eyewitness Ms Quale and the investigating police officer Mr McGillan, and statements of some nine further witnesses.
Pursuant to the spirit of procedural collaboration earlier referred to, Ms Burrows then called her psychiatrist, Mr Haeney and tendered his report. I also received Dr Brereton's report at that time.
Dr Haeney summarised key aspects of his report. Dr Haeney was then asked to consider the evidence given yesterday. In particular, he was asked to have regard to the evidence of the two eyewitnesses and the investigating police officer, each of whom had contact with the accused in the early hours of the morning, either during the events leading up to the alleged crime, surrounding the alleged crime itself or in the several hours afterwards.
Importantly, Mr Haeney was asked to consider the video of the accused taken in those few subsequent hours and his responses to questions by police, his apparent demeanour and affect, together with toxicology evidence as to the contents of the accused's blood taken between 6 and 7 a.m. that morning.
Key aspects of the new material that Dr Haeney considered particularly instructive were the accused's presentation in the video, the toxicology results and some further facts concerning the relationship between the three protagonists, the accused, Mr Gomes and Ms Quale up to and surrounding the events. I have regard to the extent and detail of all of that evidence without repeating it.
Of particular relevance was the fact that the evidence given yesterday admitted of the possibility of a clear motive to commit the crime. Whilst otherwise the accused's actions may have been out of the blue, it became clear from the evidence that when the accused entered the bedroom of Ms Quale in the early hours of the morning to give her some cake that he had brought over earlier, possibly in the hope of rekindling his previous intimate relationship with her or, at least, giving her cake, he found Mr Gomes in bed with her. His reaction in stabbing Mr Gomes was consistent with the way that former lovers often react when they find people they are interested in in bed with somebody else. In other words, the facts revealed a motive for the accused to commit the crime.
In light of all of the evidence as just summarised, Dr Haeney gave evidence that he was of the view that the accused would have been able to, and was, reasoning with a degree of sense and composure when he attacked Mr Gomes, and that he was accordingly not mentally incompetent at the time of the events.
Dr Haeney referred to a number of matters to support that view. He noted the seemingly rational and responsive way that the accused behaved when spoken to by police over an extended period of time, only an hour or so after the event. He noted the fact that the accused was located seemingly hiding from police, having found his way home and that, in Dr Haeney's view, psychosis does not normally resolve in a matter of minutes or hours after a psychotic event so that it is likely that the accused's apparently stable mental state, as shown during his presentation to police, reflected his mental state an hour or so earlier when the events occurred.
I have regard to everything that Mr Crowe raised in cross-examination and, of course, to the totality of Dr Haeney's evidence.
At the conclusion of Dr Haeney's evidence the court took the morning break and allowed Mr Crowe some requested extra time to speak with Dr Brereton. Dr Brereton had, overnight, been provided with the transcript of yesterday's hearing, including the video of the accused's presentation to police in the early hours of the morning.
Upon resumption Mr Crowe informed the court that he had spoken to Dr Brereton and that Dr Brereton's view, having read yesterday's evidence of the eyewitnesses and watched the video of the accused concerned, was that he no longer supported the position that, on the balance of probabilities, the defendant was mentally incompetent at the time of the alleged offence.
In those circumstances, Dr Brereton no longer supporting the case that Mr Crowe had opened on, Mr Crowe indicated that he would not be calling Dr Brereton and he would not be putting any further evidence or submissions in support of a mental incompetence defence.
Mr Crowe indicated that would if possible withdraw the accused's case that he was suffering from mental incompetence. He raised whether the trial would need to proceed or whether the mental incompetence case could simply be discontinued.
Brief discussion of s.269GB within the framework set out by s.269E ensued. That framework appears to mandate the court's determination of the issue of mental incompetence so long as it is raised by the defence. It is a fine question whether that mandates the trial to continue to its conclusion and result in a finding come what may, or whether the hearing is intended to be subject to all the normal rights and discretions that counsel pursuing an adversarial case would have, including the ability to discontinue the case.
In all the circumstances, rather than embark on the academic consideration required to determine that issue, although I would have been happy to do so if counsel had requested it, counsel agreed that I simply determine the case on the basis that no further evidence was called.
Counsel were also happy for me to deliver an extempore decision, subject to the publication of more detailed formal reasons at a later stage should that be requested by counsel.
I have regard to the evidence of Mr Gomes and Ms Quale as to the events of the evening in question and on the basis of their evidence I find that the accused did enter the bedroom where Mr Gomes was asleep. He brought with him cake and a knife to cut it with. On balance, he was likely unaware of Mr Gomes' presence, intending to wake Ms Quale with the cake that he had earlier brought over. It is likely, on the balance of probabilities, that everybody had fallen asleep some hours earlier at the end of a long day and that the accused awoke and got the idea of taking the cake in, maybe to rekindle something with Ms Quale or, at least, give her cake and was surprised, shocked or at least struck by the fact that Mr Gomes was in there in bed with Ms Quale. He reacted adversely, lost his temper and attacked Mr Gomes rationally and not in a state where he was mentally incompetent. He ground the cake into Mr Gomes’ face to humiliate or distract him and at the same time stabbed him with the knife.
Coming to that view I have also had regard to Dr Haeney's evidence and Dr Brereton's evidence as to the nature of the accused’s underlying psychiatric condition.
I have had regard to the video of the accused after the event, Dr Haeney's opinion and the concession made by defence counsel as to Dr Brereton's revised opinion upon him viewing the materials overnight.
The accused has the onus on the balance of probabilities to establish a defence of mental incompetence. S269C provides that 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 a mental impairment does not know the nature and quality of the conduct or does not know the conduct is wrong or is unable to control the conduct.
In my view none of those states of affairs are established on the balance of probability. Rather, it is likely the accused lost his temper when he saw his former partner in bed with Mr Gomes and deliberately stabbed Mr Gomes whilst intending to humiliate or distract him by grinding the cake into his face at the same time.
That concludes my ruling.