Sean Fewster analysis: Why the stabbing death of Adelaide Crows coach Phil Walsh cannot be legally described as a murder
ANALYSIS: The stabbing death of Adelaide Crows coach Phil Walsh cannot legally be called a murder even though, to most people, it appeared to be. Sean Fewster explains why.
- Main story: Cy Walsh won’t stand trial due to mental incompetence
- An outpouring of grief — How SA mourned Phil Walsh
- What is James Nash House? Where Cy Walsh is detained
- ‘Have I been a good father?’ Phil Walsh’s last interview
- Obituary: Phil Walsh, the man that lived the AFL dream
THE Adelaide Crows and Port Power will take to the field tomorrow for their 41st Showdown — but the players would be forgiven if their thoughts are elsewhere.
Like many people in Adelaide and around the country, the death of their mutual former coach Phil Walsh instead could be at the forefront of their minds.
Friday’s revelation that prosecutors will concede Phil’s son, Cy, was mentally incompetent at the time of the killing brings little comfort.
Likewise, the fact the crime still cannot be called murder, combined with many continuing suppression orders, leave questions that only increase the unease.
Until the next hearing on September 28, the Walsh “murder” hangs in a strange kind of legal limbo where it both is and isn’t an allegation, where it both is and is not a crime.
Strange, but not unusual — this fluid state is actually quite common at this point in the criminal legal process.
The difference here is that the public is normally not privy to these moments, which occur behind closed doors in unreportable “directions hearings”.
Friday’s hearing, however, took place in open court at the request of prosecutors who are, wisely, seeking to defuse the rampant speculation surrounding the case.
By way of recap, Cy Walsh has denied murdering his father on the grounds he was mentally incompetent at the time the killing occurred.
Legally speaking, that means it is a fact that Phil Walsh was killed but still only an allegation that incident meets the statutory definition of murder.
Even when prosecutors do formally concede Cy Walsh’s incompetence, that does not make him a murderer.
South Australian law holds that a person must be capable of understanding the wrongfulness of their actions in order to be guilty of any crime.
A person who was mentally incompetent at the time an offence was committed lacks that understanding and, therefore, cannot be found guilty.
Intoxication by liquor or drugs is not a factor in that determination — there must be a medically-diagnosed mental illness in order to be found incompetent.
On September 28, Cy Walsh will face a one-day competency trial held under the provisions of Section 269 of the Criminal Law Consolidation Act (1935).
It will hear evidence not from witnesses but from psychological and psychiatric experts about the state of his mental health.
If satisfied of incompetence, the court will find Cy Walsh not guilty of murder — but rule the “objective elements” of the offence have “been made out”.
That means a crime occurred even though the offender is, by virtue of their incapacity, not guilty in the legal sense.
That ruling does not guarantee a person walks free — indeed, it signals the exact opposite.
Those found not guilty by reason of mental incompetence serve a “limiting term”, which is a period under mental health supervision equal to a well offender’s jail term.
Limiting terms can, like sentences, be imposed for life and be served either in a secure facility, in the community or a combination of both.
Tomorrow will be a hard day for the Walsh family, the Crows, the Power and everyone touched by the tragic events of July 3, 2015.
September 28 will be more traumatic, however, when the true scope of this very sad case — and the destruction of a loving family — is revealed.
That the revelations will come just 72 hours before the 2016 AFL Grand Final — a game the Crows may very well be playing in — is even more devastating for South Australia.
