Police v Hellyer No. Scciv-01-1723

POLICE v HELLYER
[2002] SASC 61
Magistrates Appeal: Criminal

PERRY J. This is an appeal by the police against the dismissal by the Magistrates Court sitting at Adelaide of a charge of serious criminal trespass.
The basis of the dismissal was a finding by the learned trial magistrate that the prosecutor had failed to prove the necessary intention to commit the offence.
The charge was prosecuted on an information which alleged that the respondent:
“Between the 17^th day of June 2000 and the 24^th day of June 2000 at Hallett Cove .... entered the place of residence of John Mcpherson Southey as a trespasser with the intention of committing an offence to which this section applies.
Section 170(1) of the Criminal Law Consolidation Act 1935.”
I will address first the circumstances of the alleged offence.
At the relevant time the respondent and his wife Carolyn lived at 10 Constellation Street, Hallett Cove. The alleged victim and his wife, Mr and Mrs Southey lived next door at number 8.
In late April 2000 Mr and Mrs Southey left their house unoccupied while they took a caravanning holiday around Australia. Before they left, Mr Southey told the respondent that he and his wife would shortly be leaving on the holiday. He asked the respondent if he and the respondent’s wife would keep an eye on their property while they were away.
Mr and Mrs Southey left on their holiday on 27 April 2000. They left their house secured. All the doors and windows were locked with security locks.
They arranged for their daughter, Elena Williams, to keep an eye on the premises during their absence. She did so, periodically checking the house. When she worked on night duty, she stayed there.
On Sunday 18 June 2000, Ms Williams checked the house and found that it was secure. There was no sign of anything untoward.
Mr and Mrs Westerman live in a house which is directly behind the Southey’s property.
At about 10.00 am on Monday 19 June 2000 Mrs Westerman was in the backyard of her house, hanging clothes on the clothesline. She heard the sound of breaking glass, which appeared to be coming from the direction of the Southey’s house. She went inside to telephone her husband, but then noticed a neighbour, David Fagan, outside his house. She spoke to him, as a result of which Mr Fagan walked around to the front of the Southey’s residence. He looked over the fence at the side of the house and saw that the window had been smashed and that a rubbish bin was lying on its side near the fence. He also noticed that a hatchback car was parked in the driveway of the respondent’s house at number 10.
He returned to Mrs Westerman, and they telephoned the police.
While waiting for the police to arrive, Mr Fagan returned to the Southey’s house. After about five minutes he saw a person who was undoubtedly the respondent emerge from a garage on the respondent’s property. Mr Fagan recognised the respondent as the occupant of the house, although he did not know his name. The respondent’s hair appeared to be wet. A conversation took place as follows:
Mr Fagan said, “Did you hear the glass break?”
The respondent said, “Yes”.
Mr Fagan said, “Did you phone the police?”
The respondent said, “No, I’ve had my car broken into previously”.
Mr Fagan said, “I’ve phoned the police”.
The respondent said, “When they get here I will tell them about my car”.
The respondent then interrupted the conversation somewhat abruptly by walking off and entering his house.
Two police officers attended a little later on the same day, at about 11.10 am. They found the Southeys’ house unoccupied. The glass fragments lying below the window indicated that it had been smashed from inside. They also saw that some roof tiles had been removed, creating a hole in the roof.
One of the officers entered the house through the broken window. There was no evidence given at the trial as to what observations he made inside the house.
The police officers did not take the matter further at that stage.
Later on the same day, Mr Fagan secured the house by placing material over the smashed window.
On Friday 23 June 2000, Ms Williams called into the house on her way to work. She found a card left by the police behind the security door. She entered the house. In the middle of the family room she saw a computer desk which had been smashed. The computer was missing.
In the spare room she saw that the curtain was torn. She also noticed a bent golf club.
When she went into a room which she described as her room, she saw that the window had been smashed and that a sheet of colourbond had been placed over it. She noticed that the cutlery drawer in the kitchen was open. In the laundry she saw on the floor a knife which she recognised as a kitchen knife.
Ms Williams arranged for someone to repair the damage to the window, and contacted her parents, who by then were in Darwin. They returned home, arriving on Sunday 25 June 2000.
In the meantime, on 23 June 2000 a crime scene examiner, Senior Constable Taylor, examined the house and made some observations. He deduced that entry to the premises had been gained through the hole in the roof where the tiles had been removed, and then through a manhole in the gyprock ceiling. He concluded that the intruder had left through the bedroom window at the side of the premises, but by the time of his examination the window had been repaired. He located blood on the computer desk and took a sample of it.
On 7 July 2000, another police officer, Constable Jordan, in company with Detective Senior Constable McLean, attended at the respondent’s house. With his permission, they searched the house, but were unable to find any incriminating evidence. While they were there, the respondent verbally consented to give a mouth swab to enable DNA profiling.
When Constable Jordan attended at the respondent’s house again on 12 July 2000, the respondent denied any involvement in the break-in. Arrangements were made for him to attend the police medical officer to enable the mouth swab to be taken, but before the day appointed for that procedure, the respondent’s father in law contacted the police to say that the respondent refused to go on with it.
An interview took place between Constable Jordan and the respondent on Tuesday 1 August 2000 at Sturt Police Station. The interview was videoed. The respondent then formally declined to sign a consent form for the DNA testing. Part of the discussion which took place was as follows:
“Q20So the procedure that I was, I’m going to put to you is just as swab or DNA testing. The next question I have ask you is do you consent to the forensic procedure?
A20Well, no. I would like to add to that.
Q21Yep.
A21It is just like I said to you a few minutes ago, I don’t believe even if it come up negative I believe the man next door has a vendetta against me and he’d stop at nothing.
Q22Alright. I need to get you to sign it for me as well.
A22Yep.
Q23It just says here I’ve already asked you the question for consent and you said no and so I just need a signature on the bottom as well.
A23Yep.
Q24Just need a signature there. I think that is all about all there is. Have you got any other questions Heath?
A24No not really, just the one I asked you before and just like I said the guy is not going to stop, you know. He’s stalked us ever since we moved into the house. I don’t think he’s going to stop, and I’ve been through a fair bit of hell I’ve been in Glenside and everything and now like anti psychotic drugs the whole lot you know as you guys know I had people in my roof, which I thought had people in my roof I’ve gone through a fair bit of hell because of him.”
The police officers later obtained an order from a magistrate authorising a swab to be taken under the Criminal Law (Forensic Procedure) Act 1998. The sample taken pursuant to that order matched the blood sample taken from the computer desk. There could be no real doubt that the blood on the computer desk was that of the respondent.
The outcome of the DNA profiling prompted the police officers to conduct a further interview with the respondent, which was also videoed. The respondent said that he could not explain how his blood came to be inside the house, and he denied breaking into it. He said that he “wouldn’t have a clue” as to who might have broken into the house.
The facts and circumstances to which I have so far referred were established by evidence led by the prosecution in the form of statements which were tendered by consent. The prosecution did not call any oral evidence. At the conclusion of the prosecution case, counsel for the respondent conceded that there was a case to answer.
The respondent gave evidence and called Dr Craig Raeside, a psychiatrist. As well, he tendered reports of Dr Raeside and another psychiatrist, Dr Cate McFarlane.
The Respondent’s Evidence
The respondent was 32 years of age at the time he gave his evidence, and had no criminal record. He had lived at 10 Constellation Street with his wife since about 1990.
He said that he did not have a good relationship with Mr Southey. He said:
“He always used to, like, look over the fence at what we were doing. We even caught him trying to stare in at my wife having a shower over the fence which offended me.”
The respondent gave evidence that he had been using illegal drugs since about the age of 12, and that since then he had used marijuana, LSD, ‘speed”, “mushrooms” and “a lot of alcohol”. He said that when he drank alcohol, he would drink until he became intoxicated.
He said that he had no recollection of entering Mr Southey’s home, and that he had never wished to do so, or ever formed the intent to steal anything. He denied that he ever intended to enter Mr Southey’s home “to teach him a lesson”. He could offer no explanation as to how his DNA was identified in a blood sample found in Mr Southey’s home.
He said that he knew Mr Southey was going away on holidays because he saw that the Southeys were not home.
When asked to describe the approximate quantity of alcohol he would drink “on a daily basis” at about the time of the break-in, he said:
“In reference to beer, could be anything up to 12 cans. In reference to bourbon, it could be a bottle or almost 12 cans of pre-mixed bourbons ..... and also a whole flagon or like a whole cask of white wine.”
He said that in conjunction with the alcohol, in around May and June 2000 he was taking marijuana, speed (daily), and “a lot of LSD all together”. He said he was working “on and off” and could not remember when it was that he was working.
He remembered seeing Dr Raeside and Dr McFarlane, and remembered that he had been admitted to Glenside Hospital and Mt Gambier Hospital during the course of the year 2000. He said that initially he was put on anti-psychotic drugs and that currently he was on an anti-depressant known as Cipramil.
Under cross-examination the respondent described the hallucinations that he had had from time to time associated with his drug and alcohol consumption. He said also that he had suffered lapses of memory, and occasionally passed out on the floor.
The respondent did not recall meeting Mr Fagan or coming out of the garage with wet hair. He denied having put the wheelie bin, which had been observed fallen over at the side of the Southeys house, near the fence.
When pressed as to the extent of his marijuana consumption at about that time, he said that it was up to 30 “cones” a day, and that he took a daily trip on LSD and also consumed amphetamines daily, at least a gram.
The respondent said it was a “daily event” for him to “get drunk on alcohol”.
He was cross-examined at length as to some discrepancies in the history which he had given to Dr Raeside and Dr McFarlane of his consumption of drugs. Based on a history taken by one of the two doctors, he was questioned as to whether or not he had an argument with his wife on 17 June 2000 which resulted in him spending the night at the Lockleys Hotel.
He admitted that he had possibly told Dr McFarlane that “on the 18 June 2000, the date of the alleged theft of Mr Southey’s computer, [he] had stayed the previous night at the Lockleys Hotel”. The respondent admitted that he had stayed at the Lockleys Hotel “a couple of times”. He agreed that he “more than likely” told the doctor that he had to wait until the bottle shop opened at 9 o’clock to collect the refund of cash deposit which he had made at the hotel.
The respondent agreed that it was “fair to say that [he had] no recollection of any events that occurred in the week prior to 18 June”. When asked how it came about that he could recall staying at the Lockleys Hotel and collecting the cash deposit the next morning, that is, the morning of the break-in, he thought that he was able to recall that because his wife “has a very good memory of it and she’s documented a lot of these happenings and it’s only because of that that I can, like, recall”.
Mrs Hellyer gave evidence which tended to support the respondent’s evidence as to his consumption of drugs and alcohol.
She said that from about the start of 2000 they were barely on speaking terms, and they had a lot of arguments. She gave evidence that at times he acted strangely, and appeared sometimes not to know who she was.
She tried to enlist some help from a friend of the respondent, Simon Fuller, who visited in about April 2000, but this was to no avail.
She denied knowledge of her husband bringing a computer system or anything resembling that into the house. She said that the respondent had never said anything to suggest that he had gone into Mr Southey’s house. She said that if their arguments got “bad enough”, the respondent would leave the house and stay either in a hotel, sometimes the Lockleys Hotel, or other times in caravan parks. She said that she had rung the Lockleys Hotel and confirmed that he had at times stayed there. When asked specifically whether she had any knowledge of her husband staying at the Lockleys Hotel on Sunday 18 June 2000, she said:
“I’m not sure what specific dates because it was stressful back then and some things are a bit of a blur. I definitely know he did around that date, time, but I don’t know if it was the exact date.”
Medical Evidence
In his report, Dr Raeside, who had access to the clinical notes of Glenside Hospital, was able to confirm that the respondent was first assessed psychiatrically on 8 July 2000 at Flinders Medical Centre, after having been taken there by the police. This was the day after the police officers first came to the respondent’s house. At Flinders Medical Centre he was diagnosed by Dr McFarlane as being psychotic, “thought to be induced by LSD or other drugs”. To quote Dr Raeside:
“He reported a range of paranoid ides (thought to be delusional in nature) in relation to ongoing harassment by his neighbour, the victim in this matter, and he believed that the police were somehow involved. This led to a period of disturbed behaviour in his roof, ...... Upon review by Dr McFarlane he was considered to have resolved sufficiently, but not completely, and his detention order was removed, and he was allowed to leave the hospital.”
Dr Raeside then spoke of a subsequent episode about a week later when the respondent was detained (he does not say by whom) on 14 July 2000 at Mt Gambier “with a relapse of his previous paranoia in relation to people in his roof”. On this occasion he was subsequently assessed at Glenside Hospital where he “displayed paranoid delusions, persecutory in nature, and disorganised agitated behaviour”. According to Dr Raeside:
“It was thought that this psychotic episode was related to recent stresses including loss of employment, marital conflict, and ongoing difficulties with his neighbour. Additionally, excessive use of marijuana was thought to have precipitated and exacerbated his psychotic symptoms.”
It appears that the respondent settled quickly at Glenside Hospital and was discharged and followed up by Dr McFarlane.
The respondent gave a history to Dr Raeside of friction with Mr Southey, and described what was clearly a delusional episode which he said followed about a week after a visit from Mr Southey which in turn was soon after the break-in, when the respondent believed “that five men had been placed in his roof by his neighbour”, as a result of which he entered the roof and searched it for intruders. He said that he had damaged an air conditioning duct which he hit with a baseball bat during this incident. Eventually the police came, which apparently resulted in the admission to Flinders Medical Centre on 8 July 2000, to which I have referred.
Part of the history extracted by Dr Raeside was:
“He told me that he did not believe that he had done the house break on his neighbour, but could not say that it wasn’t him because of the DNA positive blood match. However, he believed that the police may have planted his blood and was suspicious about them taking his blood on the night at the Flinders Medical Centre.”
In his report Dr Raeside concluded that the respondent had a generally “unremarkable” past history, apart from heavy drug and alcohol abuse commencing in his early teens. However, he was of the opinion:
“... around the time of the alleged offence .... Mr Hellyer appears to have become increasingly paranoid and eventually psychotic. However, there is no evidence available that he was suffering from a psychotic disorder at the time of the alleged offence (assuming that he did it). He appears to have become acutely psychotic within a week after the alleged offence, precipitated in part by his neighbour’s actions towards his wife.” (emphasis added)
Dr Raeside diagnosed that the respondent was suffering from “a resolving Major Depressive Disorder and a resolved underlying psychotic disorder”. The nature of the psychotic disorder was unclear, although he thought that the respondent might possibly have an “evolving Schizophrenic Disorder which may have been precipitated by drug abuse”.
Dr Raeside was asked to express an opinion as to the respondent’s mental competence at the time of the alleged offence. As to that, in his report he states:
“There is no contemporary evidence of Mr Hellyer’s mental state at the time of the alleged offence other than the witness statement of David Fagan, a neighbour who observed Mr Hellyer shortly after the breaking of glass at the victim’s house. He was noted to be coming out of his garage and appeared to have just gotten out of the shower (due to his wet hair). This may seem to indicate lack of involvement by your client in the alleged offence. Mr Fagan comments that your client appeared somewhat unusual in that he walked off halfway through a conversation. There is no other indication that he was experiencing any psychosis at that time.”
He went on to observe that there was no evidence that if the respondent was involved in the break-in, this was due to paranoid illness, and further:
“... should psychotic motives have been behind it then it would be likely that Mr Hellyer would recall the incident. Psychosis as such does not usually impair memory, but more particularly impairs judgement and perception.”
Dr Raeside went on to say:
“Due to lack of evidence to the contrary I would therefore not be able to support a mental impairment defence in this matter. However, there is evidence that he was experiencing a severe psychotic illness within a week of the alleged offence and therefore it is likely that he was experiencing some paranoid ideas previously.
In her report, Dr McFarlane confirms the nature of the history given to her when she saw the respondent at Flinders Medical Centre on 8 July 2000 in terms consistent with the description given by Dr Raeside. This included an account by the respondent of his delusion as to people in the roof on the night before.
During the course of her report she said:
“Heath [the respondent] reported no previous psychiatric symptoms or treatment. He admitted to daily marijuana use, and occasional use of LSD. There were no other mental state features suggesting a functional psychosis such as schizophrenia (eg thought disorder, hallucinations, social withdrawal) and I agreed that it was most likely that his apparent paranoid psychosis had been precipitated by the use of LSD, and possibly marijuana.”

In subsequent attendances upon her, the respondent recounted to Dr McFarlane a description of other delusional episodes involving intruders in his house and intrusive behaviour by Mr Southey.
Dr McFarlane did not see the respondent for some time after 30 August 2000. She later saw him in February 2001, after he had been referred back to her by the respondent’s solicitors. She said that the respondent then gave some further history to her which had not previously been disclosed to her.
This included a history of much greater consumption of drugs. She reported that at the time of the alleged offence in June 2000:
“He was smoking 15 cones of marijuana a day, and had been using methamphetamine ‘balls’ orally, since about March 1998. He also drank about 8 cans of ‘bourbon and coke’ throughout the night. From early 1998, he had about 20 LSD ‘trips’, but never suffered flashbacks.”
It appears from her report that the respondent told Dr McFarlane that:
“On 18 June 2000, the day of the alleged theft of Mr Southey’s computer, Heath had stayed the previous night at the Lockleys Hotel (I think after an argument with Carolyn). He had to wait until the bottle shop opened, he believes at or about 9 am to collect the refund of cash deposit he had made at the hotel. He returned home after this, but has no memories of what he did that day, adding that he ‘probably got smashed’.”
Dr McFarlane offered the opinion:
“At the time of the alleged offence [the respondent] was suffering from substance abuse and dependence, involving marijuana, amphetamines and alcohol. There is no evidence that Heath suffered from a drug induced paranoid psychosis until his presentation after using LSD on 8 July 2000.”
In his evidence, Dr Raeside stated that he agreed with the view that the respondent “... was experiencing psychotic disorder with prominent paranoid features” around the time of the admissions to hospital. He thought that a drug-induced psychosis rather than one with a schizophrenic base was more likely to have been the case with the respondent.
Dr Raeside answered a number of questions as to the causes of memory loss, which he thought more likely to be related to alcohol consumption rather than use of drugs. He did, however, agree that use of up to a gram of methamphetamine and up to 30 cones of marijuana a day, together with regular consumption of LSD and ingestion of substantial quantities of alcohol, “would invariably affect someone’s memory”. Dr Raeside was asked if there had been such a large consumption of drugs and alcohol, it was possible that Mr Hellyer “in reporting that he has no memory of the alleged incident might be absolutely correct in that proposition”, to which Dr Raeside replied, “It is certainly possible that he has no memory for that”. He was of the view that it was likely that Mr Hellyer was suffering from a mental illness at the time of the alleged offence.
He went on to say that he thought it “possible” that Mr Hellyer did not know the “nature and quality” of his conduct at the time of the alleged offence, or that his conduct was wrong. He thought, however, that the possibility that Mr Hellyer was unable to “control his conduct” was “less of a possibility”. He offered the view “in my experience very rarely would a mental illness cause one to be unable to control their conduct but it is certainly a possibility”. Dr Raeside reiterated in his cross-examination that there was “no contemporary evidence of what [the respondent] was like at the time of the alleged offence”.
As for the very heavy consumption of alcohol on the day of the alleged offence as reported to Dr McFarlane, Dr Raeside indicated that he had not been given that information at the time he assessed the respondent. He stated in cross-examination:
“As I’ve indicated in my report, I’ve reported what he said was his normal alcohol consumption and I certainly questioned him about his alcohol use, and from Dr McFarlane’s report, as we’ve discussed, he indicated that he’d drunk heavily on the day. Certainly that consumption of alcohol, if it’s over a long period of time, would induce some degree of tolerance to alcohol so therefore the effects would be less than might otherwise be in someone who was a novice to drinking. In other words, if someone never drank and then suddenly had a bottle of spirits they would be expected to be unconscious, possibly dead on the ground. So the fact that he could consume that amount of alcohol would suggest some degree of tolerance. If he was able to function, that is get out of bed or out of the house, go elsewhere, again would suggest some degree of tolerance, it would account for memory loss, total memory loss, for the time of the alleged offence, if he had consumed that amount or more. And, although I’ve got no evidence, it also could prevent him from forming the intent to commit the offence if he was sufficiently intoxicated.”
Later he returned to the evidence of what the witness Mr Fagan saw, as to which he said:
“... from the information available there was no other indication of psychosis, apart from this one comment that says he might have been a little unusual. But that of itself wouldn’t warrant a diagnosis of psychosis.”
When he was asked later again as to whether there was anything to suggest that the respondent might have been suffering from automatism, Dr Raeside replied:
“Again, that would be a possibility but there’s no evidence to support that either.”
When it was put to Dr Raeside that a certain amount of dexterity would be involved in removing ceiling tiles and entering the house through the manhole cover, he said:
“... if ... someone performs complex tasks then they’re less likely to be significantly intoxicated and therefore more likely to have some memory of the event, unless they consume large amounts after as well, further amounts.”
At the conclusion of his cross-examination, Dr Raeside was asked:
“Q.Is there any evidence or information to suggest to you that the accused was not aware of the nature or quality of his actions.
A.No.”
I must say that I found the manner in which the evidence was led as to the appellant’s likely mental state at the time of the alleged offence to be confusing and in large measure, ill-directed.
The medical reports which were tendered and the examination and cross-examination of Dr Raeside were couched in terms appropriate to an inquiry pursuant to Part 8A of the Criminal Law Consolidation Act 1935 (“the Act”). But neither the appellant nor the respondent raised before the learned trial magistrate an argument as to whether or not the respondent was, within the meaning of Part 8A, mentally incompetent to commit the offence. What the respondent was raising was a defence that at the relevant time his actions were either involuntary, in the sense that they were not consciously willed, or that he lacked the specific intention to commit the offence. However, Dr Raeside was examined by the respondent’s counsel in the first place as to what mental condition might explain that respondent’s alleged lack of memory of the incident, and in the second place as to whether or not the respondent was suffering from “a mental illness” in terms appropriate to an inquiry under Part 8A of the Act.
For example, during the course of his examination-in-chief, Dr Raeside was asked:
“Q.In your professional opinion, is it possible that, at the time of the alleged offence, Mr Hellyer was suffering from a mental illness.
A.I would go further than that. I think it’s likely that he was suffering a mental illness at the time of the alleged offence.
Q.Thank you. You have told his Honour that you weren’t able to support a defence of mental impairment professionally.
A.Yes.
Q.On the balance of probabilities.
A.Yes.
Q.Thank you. That notwithstanding, is it possible that, as a result of drug-induced psychosis or psychosis resulting from a possible schizophrenia disorder, that, at the time of the alleged offence, Mr Hellyer may have been suffering from a mental impairment.
A.Mental impairment in the sense of a mental disorder or the mental impairment as far as 269(c)?
Q.Well, I might go through the placitum in a moment. In terms of a mental disorder.
A.I think it’s likely that he was suffering from a mental disorder and that he had been suffering from that mental disorder for some time as evidenced by his wife’s comments.
Q.Thank you. And perhaps dealing with the particular matters under s 269(c) of the Criminal Law Consolidation Act, given all the information that you had when you saw Mr Hellyer and the short information that you’ve been provided with today, in your professional opinion, is it possible that at the time of the alleged offence, Mr Hellyer did not know the nature and quality of his conduct.
A.I think that’s possible, yes.
Q.Furthermore, is it possible that Mr Hellyer didn’t know that his conduct was wrong.
A.I think that’s possible as well, based on his paranoid ideas and delusions.
Q.Thank you. And furthermore, is it possible that Mr Hellyer was unable to control his conduct.
A.That obviously is a possibility. I think that’s less of a possibility than the others. In my experience, very rarely would a mental illness cause one to be unable to control their conduct but it’s certainly a possibility.”
The learned trial magistrate, confronted with evidence couched in terms of mental impairment under Part 8A, was prompted to make the following findings at the conclusion of his reasons for judgment:
“Having regard to those explanations for the apparent inconsistencies between the defendant’s evidence and his previous statements and also the support derived from Carolyn Hellyer’s evidence, which I accept, I am satisfied that during the period leading up to the alleged offence the defendant was abusing drugs and alcohol to such a degree that they significantly affected his behaviour and his relationship with his wife. Although I have reservations about the defendant’s credibility and the reliability of his evidence, I am unwilling to reject his evidence on this topic. It follows that it is at least a reasonable possibility that the defendant’s evidence on that topic might be true. It is also at least a reasonable possibility that Dr Raeside’s conclusion, or opinion, concerning the defendant’s likely mental state at or about the time of the alleged offence might be correct. According to Dr Raeside, if the defendant was suffering from a mental disorder or mental illness then, it was also reasonably possible that, at the time of the alleged offence, he did not know the nature or quality of his conduct or that his conduct was wrong. In those circumstances it is also a reasonable possibility that he was not capable of forming an intention to commit an offence of larceny. On the evidence before me, I am unable to exclude that reasonable possibility. The mental disorder and its effects might explain why a person with no previous history of offending might behave in such an uncharacteristic way.
Because the prosecution has failed to prove an essential element of the alleged offence beyond reasonable doubt the law requires me to dismiss the charge, which I do.” (emphasis added)
It will be seen from that passage that the evidence of Dr Raeside was pivotal to the conclusion which the learned magistrate reached.
But Dr Raeside’s evidence was tied to considerations peculiar to Part 8A. In particular, the conclusion which he expressed in his report, which he enlarged upon during his evidence at the hearing, was that, in his view, a defence of mental incompetence under s 269C of the Act, could not be made out, as he could not be satisfied on the information which he had been given on the balance of probabilities that the respondent was suffering from a mental impairment within the meaning of the section, and that in consequence of that impairment either did not know the nature and quality of his actions, or did not know that his conduct was wrong, or was unable to control his conduct.
The most that can be made of Dr Raeside’s evidence is that although for those reasons he felt that the medical basis for a defence under s 269C was not made out, he was prepared to accept that it was possible that on the day of the offence the mental condition of the respondent might have been such that the state identified in one or other of the three conditions referred to in s 269C might have existed. At the same time, Dr Raeside thought that the third possibility, namely, that the respondent was unable to control his conduct, would be a rare possibility.
That view led the learned trial magistrate to conclude inferentially that even although a defence of mental incompetence could not be made out on the medical evidence as it stood, he was unable to exclude the possibility that the respondent either did not know the nature or quality of his conduct or that his conduct was wrong. He went on to reason from there that it was reasonably possible that he was not capable of forming the necessary intention.
With respect to the learned trial magistrate, that process of reasoning is inherently flawed and does not take account of critical provisions which are to be found in Part 8 and Part 8A of the Act.
In the first place, the question of memory loss and the possible causes for it was largely beside the point. A person may suffer retrograde amnesia through consumption of alcohol or drugs or both, with the result that they have no memory of what they might have been doing at the time of the commission of the offence. But the fact that the respondent suffered retrograde amnesia to that extent does not throw much light on the question whether or not the respondent formed the specific intent to commit the crime at the time of its commission. A reasonable doubt as to the existence of the specific intent necessary for a crime of this nature is not raised simply by evidence offering a plausible explanation for memory loss.
As for the question of mental incompetence, pursuant to s 269D:
“A person’s mental competence to commit an offence is to be presumed unless the person is found, on an investigation under this Division, to have been mentally incompetent to commit the offence.”
Division 2 comprises s 269C to s 269G (inclusive). The magistrate did not conduct an investigation under Division 2. Accordingly, on a strict application of the section, if it applied, the respondent’s mental competence was to be presumed.
I use the expression “if it applied” as, for other reasons, I do not think that Part 8A, which includes Division 2, applied.
For a person to be found mentally incompetent, he or she must be found to be suffering from a “mental impairment” which in turn causes one or more of the consequences referred to in s 269C.
Under s 269A, mental impairment includes:
“(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;” (emphasis added)
Intoxication is separately defined in the same section as follows:
“intoxication means a temporary disorder, abnormality or impairment of the mind that results from the consumption or administration of intoxicants and will pass on metabolism or elimination of intoxicants from the body;”
It is clear enough on the medical evidence that if the respondent was suffering from any mental disorder at all, it was either a drug-induced psychosis or what Dr Raeside described as an “... evolving schizophrenic disorder which may have been precipitated by drug abuse”.
It follows that if there was a mental disorder, it was either directly induced by drugs or precipitated by drugs. Even if there was an underlying schizophrenic disorder which gave rise to a temporary manifestation of the psychosis precipitated by ingestion of drugs or alcohol, it seems to me that the condition should be regarded as falling within the definition of “intoxication” in s 269A. It should properly be characterised as a “temporary disorder, abnormality or impairment of the mind” which results from a consumption or administration of intoxicants. Furthermore, it is a condition which presumably will pass on “metabolism or elimination” of the intoxicants from the body.
Once that conclusion is reached, the condition ceases to be a “mental impairment” within the meaning of Part 8A with the result that Division 2 was not applicable. Part 8 of the Act is then drawn into play.
Within that Part, s 267A defines consciousness as including:
“(a)volition;
(b)intention;
(c)knowledge;
(d)any other mental state or function relevant to criminal liability;”
In this case, the questions of volition and intention were relevant. Section 268 provides as follows:
“(1)If the objective elements of an alleged offence are established against a defendant but the defendant’s consciousness was (or may have been) impaired by intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if it is established that the defendant-
(a) formed an intention to commit the offence before becoming intoxicated; and
(b) consumed intoxicants in order to strengthen his or her resolve to commit the offence.
(2)A defendant’s consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of an alleged offence if, because of impairment of consciousness, a subjective element of the alleged offence cannot be established against the defendant.”
On the facts of this case, s 268 would not appear to be of application in that there is no evidence upon which it would be proper to find that the respondent had formed an intention to commit the offence before becoming intoxicated, if he was intoxicated at the relevant time.
Section 269 provides:
“(1)On the trial of a defendant who was (or may have been) intoxicated at the time of the alleged offence, the question whether the defendant’s consciousness was, or may have been, impaired by intoxication to the point of criminal irresponsibility-
(a) is not to be put to the jury by the judge, the prosecutor or the defendant; and
(b) if raised by the jury itself, is to be withdrawn from the jury’s consideration, unless the defendant specifically asks the judge to address the jury on that question.
(2)A defendant’s consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of an alleged offence if, because of impairment of consciousness, a subjective element of the alleged offence cannot be established against the defendant.”
The terms of s 269 make it plain that it is only on a trial by jury that it is of application. This means that it cannot be of application in the Magistrates Court.
In any event, here, the respondent undoubtedly raised the issue of intoxication and it was necessary for the learned magistrate to deal with it.
Once it is accepted that neither Part 8 nor Part 8A of the Act were of application, the question which arises if whether or not, on the basis of Dr Raeside’s opinion that it was possible that at the time of the alleged offending the respondent was suffering from a psychotic condition, albeit precipitated by ingestion of drugs or alcohol or both, with the result that the respondent might not have known the nature or quality of his conduct or that his conduct was wrong, this properly supports the conclusion that the prosecution failed to exclude the possibility that the respondent lacked the specific intent necessary to commit the crime.
If a defendant might not have known the nature or quality of his conduct, this would normally support the view that he or she lacked the specific intent necessary to commit the crime. On the other hand, a failure to appreciate that the conduct was wrong would not necessarily have the same consequence.

But as to that aspect of the matter, the evidence of Dr Raeside must be considered in the context of the evidence as a whole.
Part of that evidence was the respondent’s own evidence to the effect that he had spent the night at the Lockleys Hotel and checked out at 9.00 am, after retrieving his deposit. If that was true, he could hardly have got himself into the state which, on his case, he was said to have been at the time of the alleged offence, which occurred at about 10.00 am.
There is, however, some doubt as to whether or not the respondent’s evidence as to where he had spent the preceding night is reliable, as he has no direct recollection of it, and was relying upon what his wife had told him. Essentially, this, I suppose, was hearsay evidence. If it was to be excluded, given that his wife was unable to say in the witness box whether the night in question was a night which he had spent at the Lockleys Hotel, it might be unsound to base any conclusion upon a finding that he did spend the night there.
But that is not an end of the matter. In determining whether or not the prosecution excluded any possibility that the respondent lacked the specific intent necessary to commit the crime, it was necessary for the learned trial magistrate to have regard to the objective circumstances in which the offence was committed.
I have already described the nature of the entry by the respondent into the house, the evidence of the condition of various objects in the house which were obviously interfered with by him, the removal of the computer, the nature of his exit from the house, the fact that it seems likely that he used the rubbish bin to stand on to get over the fence to return to his own house, and the condition in which he was observed soon afterwards by the witness Mr Fagan.
It is necessary for me to assess the evidence myself, including the evidence as to those matters.[1]
[1] Taylor v Hayes (1990) 53 SASR 282 and Rowland v Police (2001) 79 SASR 569.
In my opinion, the objective circumstances to which I have referred lead overwhelmingly to the conclusion that the intruder, who was proved to be the respondent, must have intended to enter the house with the intention of committing the relevant offence, namely, larceny, and further, that his actions were consciously willed.
I would quash the order of dismissal and substitute a finding that the respondent is guilty of the offence charged.
I would refrain from entering a conviction on the footing that to do so would interfere with one of the sentencing options which may be available when the respondent is sentenced.
I would refer the matter back to the Magistrates Court for the respondent to be sentenced in the light of these reasons and any other matters which may be put forward on the question of penalty.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
[1] Taylor v Hayes (1990) 53 SASR 282 and Rowland v Police (2001) 79 SASR 569.

[2002] SASC 61

27 February 2002