R v Adam
[2012] SADC 119
•21 September 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ADAM
Criminal Trial by Judge Alone
[2012] SADC 119
Reasons for the Verdict of His Honour Judge Brebner
21 September 2012
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
Accused charged with causing a bushfire - application pursuant to s269C that accused was mentally incompetent to commit the offence - wrongfulness considered - reckless indifference considered.
Held: Application refused - accused mentally competent to commit offence - accused did not act intentionally or with reckless indifference - verdict of not guilty.
Criminal Law Consolidation Act 1935, s269 GA(2), 269D, 269C, 269A(1), referred to.
R v Radford (1985) 42 SASR 266; The Queen v Falconer (1990) 171 CLR 30; Bratty v Attorney General (Northern Ireland) [1963] AC 386; R v Kemp [1957] 1 QB 399; R v Jeffrey (1980) 7 A Crim R 55; R v Joyce [1970] SASR 184; R v Rahey (1977) 37 CCC (2nd) 461; Attorney-General for South Australia v Brown (1960) 44 Cr App R 100; R v Dix (1982) 74 Cr App R 306; R v Vernege [1982] Crim LR 598; Stapleton v R (1952) 86 CLR 358; Brown v R (1959) ALR 808; Mizzi v R (1960) 105 CLR 659; R v Holmes [1953] 2 All ER 324; M'Naghten's case (1843) 10 CI & Fin 200; R v Ey (No 2) [2012] SASC 116; Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; Tziavrangos v Hayes (1991) 55 SASR 416; Durward v Harding (1993) 61 SASR 283, considered.
R v ADAM
[2012] SADC 119
The accused is charged with causing a bushfire. The particulars of the charge are that on 29th March 2009, at Bridgewater, he caused a bushfire, being recklessly indifferent as to whether his conduct caused the bushfire.
The accused pleaded not guilty. He raised the issue of his mental competence to commit the offence charged. Pursuant to section 269E(2) of the Criminal Law Consolidation Act 1935, I determined to proceed first with the trial of the objective elements of the offence and the matter then proceeded under s269G accordingly.
The offence of causing a bushfire is created by section 85B of the Act which states:
85B—Special provision for causing a bushfire
(1) A person who causes a bushfire—
(a) intending to cause a bushfire; or
(b) being recklessly indifferent as to whether his or her conduct causes a bushfire,
20.12.2009—Criminal Law Consolidation Act 1935
Offences with respect to property—Part 4
is guilty of an offence.
Maximum penalty: Imprisonment for 20 years.
(2) A bushfire is a fire that burns, or threatens to burn, out of control causing damage to vegetation (whether or not other property is also damaged or threatened).
(3) An offence is not committed against this section if—
(a) the bushfire only damages vegetation (or other property) on either or both of
the following:
(i) the land of the person who causes the fire;
(ii) the land of a person who authorised, or consented, to the act of the
person who caused the fire; or
(b) the bushfire results from operations genuinely directed at preventing,
extinguishing or controlling a fire.
In the context of this particular charge, the objective elements of the charge are:
1. The accused performed the act which started the fire.
2. That the fire then burnt, or threatened to burn, out of control
3 That the fire caused damage to vegetation.
The trial of the objective elements
On the trial of the objective elements counsel for the prosecution tendered a number of statements and photographs. The contents of the statements are not disputed and the narrative which follows is derived from the statements.
The accused was bushwalking in the Adelaide Hills on the day in question. The temperature was about 27 degrees Celsius, the wind was south easterly at about 15kph and the relative humidity was about 23 percent. Some time in the afternoon a fire started in scrub in a reserve near Bridgwater. The fire eventually spread and burnt some 3.6 hectares of scrub. A number of Country Fire Service officers were mobilised to fight the fire. A number of police officers also attended the fire.
A CFS officer named Winwood found the accused trapped in the middle of a blackberry patch some ten metres from where the fire was burning. The accused told Mr Winwood that he had fallen off a walking track and become lost. Mr Winwood observed that the accused had scratches on his arms and legs. Mr Winwood, another CFS officer named Hong and Senior Constable Francis eventually rescued the accused from the blackberry patch.
Mr Winwood thought that the accused appeared exhausted, confused, slightly delerious and that he showed signs of being dehydrated. Mr Hong thought that he appeared tired and confused. Senior Constable Francis thought that he was slightly dehydrated. However, none of them suggests that he was unaware of his circumstances or that he was uncomprehending or incomprehensible.
S.C. Francis spoke to the accused before he was rescued from the blackberry patch. He ascertained that the accused’s name was Charlie Adam and that he lived at Parkside. The accused told him that he was exhausted, that he could not move and that he was cold and starting the shiver because of dehydration.
S.C. Francis spoke to the accused after he had been rescued from the blackberry patch and while they were waiting for the opportunity to evacuate the accused to safety.
QCharlie, do you know how the fire started at all, we have a lot of resources trying to work it out.
AI am aware of the circumstances surrounding the fire, yes.
QIn what way?
AI was walking from Mt Lofty to Mylor along the Heysen track and I fell down the embankment and got stuck so I lit a small signal fire to attract attention but it got a bit big. I tried to get away from it and got stuck in the blackberries where you found me. Do I need a lawyer at all?
QLets get you out first then we will discuss it OK.
AHas anyone been hurt or houses lost.
QNot that I am aware of, we will discuss it later. I should warn you that if you say anything about the fire it can be used against you in court OK.
AI understand.
The accused was arrested shortly after he was evacuated from the area where he had been located. A mobile telephone was amongst his possessions. By reference to their own mobile telephones SC Francis and another police officer concluded that there was in fact mobile telephone reception in the area where the accused had been located.
The statement the accused made to SC Francis satisfied me beyond reasonable doubt that the accused lit the fire.
The statements of the various CFS and police officers who attended the fire and the fire investigator who examined the area satisfied me beyond reasonable doubt that the fire burnt out of control for a time and that a significant amount of vegetation was destroyed or damaged as a result.
Additionally, the accused conceded through his counsel that the objective elements of the offence had been properly established.
Pursuant to section 269 GA(2), I then recorded a finding that the objective elements of the offence were established accordingly.
The accused’s case on the issue of competence
The trial then turned to the investigation of the accused’s mental competence to commit the offence.
It was the accused’s case that he was suffering from a mental illness at the time that he lit the fire in consequence of which he did not know that his conduct in lighting the fire was wrong.
The statutory provisions engaged
Determination of the question of the accused’s competence or otherwise to commit the offence charged involves a consideration of the relevant provisions of the Act and the respective functions of judge, jury and expert witness. These issues were comprehensively addressed by Judge Millsteed of this court in a recent paper entitled “Mental Competence”. I agree entirely with his Honour’s conclusions and much of what follows is directly derived or adapted from what he has written.
By virtue of s 269D of the Act, the accused is presumed to have been mentally competent to commit the offence unless he establishes on the balance of probabilities that at the relevant time he was mentally incompetent to do so.
The test of mental incompetence is laid down by s269C which provides as follows:
269C—Mental competence
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 the mental impairment—
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; or
(c) is unable to control the conduct.
For the purposes of the test section 269A(1) defines a mental impairment as follows:
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.
Also for these purposes section 269A(I) defines mental illness as follows:
mental illness means a pathological infirmity of the mind (including a temporary one
of short duration).
A qualification of the definition of mental illness for the purposes of the Act appears as a note to the definition of mental illness.
A condition that results from the reaction of a healthy mind to extraordinary external
stimuli is not a mental illness, although such a condition may be evidence of mental
illness if it involves some abnormality and is prone to recur (see R v Falconer (1990) 171
CLR 30).
The question of what amounts to a pathological infirmity of the mind thus arises.
What amounts to a mental illness within the meaning of the Act?
The definition of mental illness is based on the common law concept of “disease of the mind” as explained by King CJ in R v Radford[1]:
The expression “disease of the mind” is synonymous … with “mental illness” … The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called “defect of reason” in the M’Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli.
[1] (1985) 42 SASR 266 at 274.
King CJ’s explanation was cited with approval in The Queen v Falconer[2] by Mason CJ and Brennan and McHugh JJ subject to the qualification that a temporary mental disorder must not be prone to recur if it is to avoid classification as a disease of the mind.[3] Their Honours expressed the view that a mental condition, which was prone to recur, revealed an underlying pathological infirmity of the mind.[4] The prospect of recurrence is an important factor in determining whether an accused suffered from a “disease of the mind” appears to have its origins in reasons of policy. As Lord Denning said in Bratty v Attorney General (Northern Ireland):[5]
It seems to me that any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal.
[2] (1990) 171 CLR 30.
[3] (1990) 171 CLR 30 at 54.
[4] (1990) 171 CLR 30 Mason CJ, Brennan and McHugh JJ at 54.
[5] [1963] AC 386 at 412.
The relevance of the prospect of recurrence is retained in the footnote to the definition of mental illness.
It must be borne in mind at all times that the statutory expression “mental illness”, and its common law equivalent “disease of the mind”, are legal concepts and not medical terms.[6] It follows that in trial by jury the test of what amounts to a mental illness is a matter of law for the judge and the question of whether the particular accused was suffering from such an illness at the relevant time is a question of fact for the jury to determine in the ordinary way.[7] The Judge must direct the jury as to what amounts to a mental illness in the eyes of the law and it is then for the jury, and the jury alone, to determine whether the evidence satisfies them that the accused was suffering from a mental illness, as defined by the Judge, at the relevant time. In some cases it may thus be necessary for the Judge to rule as a matter of law whether the evidence has the capacity to support a finding that the accused was suffering from a mental illness. But once the issue is properly before the jury, it is for them and them alone to determine.[8]
[6] R v Kemp [1957] 1 QB 399 at 406.
[7] Falconer v R (1990) 171 CLR 30 Mason CJ, Brennan and McHugh JJ at 60.
[8] Jeffrey (1980) 7 A Crim R 55 at 59 (Tas CCA); see also R v Joyce [1970] SASR 184 Bray CJ Walters and Zelling JJ at 194-195.
It is thus clear and settled that the ultimate determination of the question of whether an accused was suffering a mental illness, as that expression is properly understood, is a matter for the jury and not for any medical witnesses who might express opinions on the issue.
That said, medical or psychiatric evidence may, and usually does, have the capacity to assist the jury to determine whether or not a condition which the accused was said to be suffering from at the relevant time amounted to a mental illness.[9] Where it is said that the accused was suffering from a particular form of mental disease, such as schizophrenia, medical evidence will be admissible to establish matters about which the jury would have no knowledge such as the diagnosis, nature and manifestations of the disease.[10] Moreover, an appropriately qualified expert may express their opinion as to whether the accused’s condition satisfies the legal test of mental illness and the other components of the test of mental incompetence.[11]
[9] R v Rahey (1977) 37 CCC (2d) 461 at 473-474.
[10] Attorney-General for South Australia v Brown (1960) 44 Cr App R 100 at 112-113; see also R v Dix (1982) 74 Cr App R 306 at 311; R v Vernege [1982] Crim LR 598.
[11] Stapleton v R (1952) 86 CLR 358 at 362; Brown v R (1959) ALR 808 at 811; Mizzi v R (1960) 105 CLR 659 at 662; R v Holmes [1953] 2 ALL ER 324; M’Naghten’s Case (1843) 10 CI & Fin 200.
This notwithstanding, it must be repeated that it is exclusively for the jury to determine the ultimate issue of whether or not the accused suffered from a mental illness at the relevant time and it is for them to do so by an application of the facts of the case to law as given to them by the Judge.
It is plain that the definition of mental illness and the strict separation of functions between judge, jury and expert medical witness must be borne in mind at all times. With the necessary modifications, the separation of functions must also be borne in mind in the context of trial by judge alone.
Against this background I will return to the legal meaning of mental illness in the sense of a pathological infirmity of the mind.
Mental illness in this sense is to be distinguished from “mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self control and impulsiveness”.[12] Thus conduct which is merely an expression of an accused’s personality or emotional state but nothing more falls outside the ambit of mental illness for the purposes of the Act.[13] Conduct such as aggressiveness, excitability or impulsiveness may, of course, result from an underlying pathological infirmity of the mind but if the conduct is not the product of the underlying pathological infirmity, it does not come within the ambit of mental illness and a defence of mental incompetence must fail accordingly.
[12] R v Porter (1933) 55 CLR 182 at 188-189 (cited with approval in Falconer v R (1990) 171 CLR 30 Mason CJ, Brennan and McHugh JJ at 53).
[13] J Clough and C Mulhern, Criminal Law (2nd ed Butterworths) at [15.24].
The definition of mental illness in the Act, like its common law equivalent disease of the mind, requires an infirmity of the “mind”. For these purposes “the mind” is used in its ordinary sense to mean “the mental faculties of reason, memory and understanding”.[14]
[14] R v Kemp [1957] 1 QB 399 at 407 per Devlin J.
As both Falconer and Radford make plain, a fundamental notion underpinning the concept of “pathological infirmity of the mind” is the distinction that is to be drawn between “internal” and “external” causes. Only causes internal to the defendant will constitute a mental illness or disease of the mind. The disturbance of an otherwise healthy mind by external factors, such as concussion or intoxication, cannot properly be regarded as a mental illness or disease of the mind.[15] In accordance with this dichotomy, the major mental diseases or psychotic disorders such as schizophrenia would clearly constitute mental illnesses.[16] So too would physical diseases such as epilepsy[17] and cerebral arteriosclerosis (hardening of the arteries causing reduced blood blow to the brain)[18] when they affect the soundness of the accused’s mental faculties.[19]
[15] R v Porter (1933) 55 CLR 182 per Dixon J at 189; R v Kemp [1957] 1 QB 399.
[16] R v Porter (1933) 55 CLR 182 per Dixon J at 189.
[17] R v Radford (1985) 42 SASR 266 at 274 (cited with approval in Falconer v R (1990) 171 CLR 30 Mason CJ, Brennan and McHugh JJ at 54); see also R v Rabey (1977) 37 CCC (2d) 461 Martin J at 477.
[18] Bratty v Attorney General for Northern Ireland [1963] AC 386 per Lord Denning at 412; R v Radford (1985) 42 SASR 266 per King CJ at 274.
[19] Bratty v Attorney General for Northern Ireland [1963] AC 386; R v Youssef (1990) 50 A Crim R 1 (CCA NSW); R v Cottle [1958] NZLR 999.
What is wrong within the meaning of the Act?
The question of what is meant by “wrong” for the purposes of the Act was also considered by Judge Millsteed and what follows is again adapted or derived from what his Honour has written.
“Wrong” for the purposes of the Act does not mean conduct which is legally wrong, rather it is conduct which is “wrong having regard to the everyday standards of ordinary people”.[20] The critical question is whether the accused was “disabled from knowing that it was a wrong act to commit in the sense that ordinary reasonable [people] understand right and wrong”.[21] In determining this issue, the trier of fact may consider whether the accused was unable to “reason with a moderate degree of sense and composure”[22] about whether the relevant conduct was wrong in this sense.
[20] R v Porter (1933) 55 CLR 182 Dixon J at 190.
[21] R v Porter (1933) 55 CLR 182 Dixon J at 190.
[22] R v Porter (1933) 55 CLR 182 Dixon J at 190.
In Stapleton v R[23] the High Court explained that a test based on an appreciation of legal wrongness “might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that everyone must be taken conclusively to know it, without proof that he does know it”.[24]
[23] Stapleton v R (1952) 86 CLR 358.
[24] (1952) 86 CLR 358 at 375.
The distinction between an accused knowing that his or her conduct is legally wrong and knowing that it is morally wrong, in the sense identified above, assumes considerable significance in cases where, for example, a defendant knowing that it is wrong to kill a person takes his or her child’s life in the hope of being able to care for them in a better world. Such a person would have a defence of mental incompetence because he or she did not understand that the conduct was wrong in a moral sense but would not have a defence if “wrong” meant “contrary to law”.
The concept of a complete lack of capacity to appreciate that to commit the act in question would be wrong “in the sense that ordinary reasonable [people] understand right and wrong” is self-explanatory and requires no further explanation. The concept of what amounts to an inability to reason about whether the conduct was wrong with “a moderate degree of sense and composure” requires some elaboration.
It seems tolerably clear from Porter[25] and Stapleton[26] that the expression contemplates a lack of sufficient understanding to distinguish between right and wrong in the relevant sense. (my emphasis)
[25] R v Porter (1933) 55 CLR 182 at 190.
[26] Stapleton v R (1952) 86 CLR 358 at 367.
In R v Jones[27] Sperling J reasoned that in straightforward cases such as homicide where a normal person would know without the need to consider the matter that, absent self defence, it was self-evidently wrong to kill another and he concluded that if because of mental illness an accused “…did not know that what he was doing was wrong because it was not self-evidently wrong to him in the way it would be to a sane person…the accused should be found not guilty by reason of mental illness”.
[27] R v Jones [1996] NSWSC 124.
In R v Ey (No 2)[28] at [36] Sulan J emphasised that the focus is on the accused’s capacity to understand and whether mental illness in question manifested itself in a way which prevented the accused from understanding that the conduct he engaged in was wrong.
[28] R V Ey (No 2) [2012] SASC 116
The approaches of Sperling J in Jones and Sulan J in Ey are consistent with the conclusion I have reached.
The course of the trial and the evidence
The accused was psychiatrically assessed by two appropriately qualified psychiatrists named Dr M. Ferris and Dr. A. Czechowicz. Reports of both were tendered at the outset of the trial of the accused’s mental competence. Further reports were later sought and tendered. I will set out the critical passages of each report. Dr Czechowicz eventually gave evidence. During the course of his evidence he corrected some passages of his reports. I will set out the corrected versions of his reports.
In D1 Dr Ferris reported as follows:
DETAILS OF THE OFFENCE
Mr Adams was able to clearly describe and explain details of the offence occurring on 29th March 2009. He acknowledge that it had been an extremely stressful time in the week leading up to the offence, as he had had family members staying with him and that this had been an unusual experience given that he and his wife usually led a relatively quiet life. On the afternoon of the offence he stated that he had decided to resume his walk on the Heysen Trail, which he had been completing over the last few months and planned to walk from Bridgewater to Mylor. He described himself as “an experienced bushwalker” and felt that he was well prepared for the walk on this occasion.
He acknowledged that he arrived at Bridgewater and subsequently missed his markings and found himself getting deeper and deeper into blackberries until he was physically caught and unable to get out. He stated that he felt extremely “stressed” and was “unable to think clearly at the time”. He remembered that many years ago in the UK he had lit a signal fire in order to be rescued when he had been walking, so he subsequently gathered leaves to make a fire. He stated that at the time he thought that a column of smoke would go up in the sky and someone would see his fire and be able to rescue him. He strongly denied any intention of deliberately spreading this fire, and strongly denied any thoughts that he might put himself or others at harm or risk by his actions. He reiterated that he “wasn’t thinking straight at the time”. He was unable to clearly describe what happened then, aside from stating that he had “stared in horror” as the fire had spread. The next thing he remembers is being rescued by the CFS with water bombers and found it difficult to understand why he was being arrested.
He acknowledged that at the time of the offence he had been compliant with his medications, however reported that he had been feeling a bit “high”, describing some disturbed sleep and increased energy. Collateral documentation from his psychiatrist Dr Nanda Nariavala clearly states that in late February 2009 Mr Adam was exhibiting warning signs of hyper mania and subsequently his antipsychotic medication Olanzapine was increased. On review two days prior to the offence, she also reports that he was still a bit high and stressed due to the guests in his house and there were high levels of anxiety, with mild ongoing hypermanic symptoms.
DIAGNOSIS
Based on my interview with Mr Adam and review of accompanying documentation I concur with the longstanding diagnosis of Bipolar Affective Disorder. History and collateral information indicate that at the time of the offence Mr Adam was likely to be suffering from a hypermanic episode of his Bipolar Affective Disorder secondary to social stressors in his family environment. His illness appears to be reasonably well-controlled by regular reviews by his private psychiatrist and ongoing compliance with his medication and thus he has not ever required any hospitalisations during the course of his illness.
ASSESSMENT OF MENTAL IMPAIRMENT DEFENCE
Based on my assessment of Mr Adam and using collateral information, it is my opinion that on the balance of probabilities he does fit the criteria for a “mental impairment” defence on the charge of Causing A Bushfire. Extensive history together with collateral information from his treating psychiatrist around the time of the offence and from police witness statements add weight to the hypothesis that it was highly likely that he was suffering from hypermanic symptoms of his Bipolar Affective Disorder at the time of the offence. These symptoms appeared to be readily present during clinical assessment in the week prior to the offence. It is my opinion that his judgement and reasoning appeared to have been impaired at the time, such that he did not know the wrongfulness of his actions and that he was unable to reason about his actions with a moderate degree of sense and composure.
In D2 Dr Ferris further reported:
1. Regarding the Wrongfulness of his Actions
It is my opinion that at the time of the offence Mr Adams’ judgement and reasoning was impaired to the extent that he was not able and did not turn his mind to the possibility that people or property could be harmed as a consequence of his actions.
2. Difference between a Rational and 111-Considered Decision
Based on my clinical assessment of Mr Adams and his discussion of his thought processes at the time of the offence, it is my opinion that his mental state was impaired such that he was experiencing a high level of distress, confused thought processes and an impairment in his reality testing. As such it is my opinion that his decision was irrational (based on his mental state) rather than ill-considered.
3. In reaching the conclusion of a “mental impairment” defence has it been taken into account his preparation and explanation of the fire?
I accept that it is reasonable to consider the time prior to the offence as well as his explanation after the offence in terms of assessing his overall mental state. I acknowledge that he was reasonably well prepared for his bush walk and able to explain some of his actions. However, I still maintain that at the crucial moment of consideration of the consequences and wrongfulness of his actions, he was significantly impaired in his judgment and reasoning as a consequence of his elevated mood secondary to hypomania of his Bipolar Affective Disorder. On the balance of probabilities, despite the fact that there is some evidence that he could be organised and give a reasonable explanation for his actions, he was unable to specifically know the wrongfulness of his act due to his impaired mental state.
4. Is Mr Adams’ ability to provide narrative to a constable consistent with a conclusion of a mental impairment defence.
Just because Mr Adams fits the criteria for a mental impairment defence does not necessarily mean he would be unable to converse, provide a narrative or explain his actions to officers at the time of the offence. He was not experiencing a manic episode or a severe psychotic state at the time of the offence, hence it would be reasonable to assume that he would be able to interact, converse and provide a statement to the police in any manner that would be expected of someone who did not suffer from mental illness.
…
I appreciate that he was noted to make some rational and seemingly insightful comments around the time of the offence that would question this defence, however I feel on the balance of probabilities his hypomania was affecting his judgement and reasoning such that he did not know the wrongfulness of his actions and was unable to reason with a moderate degree of sense and composure.
In D3 Dr Czechowicz reported:
My comment on (s269c) is that: it has been established that this man suffers from a psychiatric disorder and when under stress his condition becomes unstable. He becomes psychotic and he loses insight and judgement hence we have the issues that occurred on 29/3/09.
When I questioned him about the nature and quality of his conduct: it is my understanding that the consequences of possible danger to others were not perceived by him, as he said “never entered my head”. My explanation for that is that his level of anxiety and his level of personal threat so impaired his thinking that he was unable to perceive the wrongfulness of the conduct. He was aware that he was lighting a fire. He was aware that lighting a fire is the way to attract attention in the northern hemisphere where he was brought up. His decision to light a fire had been influenced by his perceived need to implement an emergency response. The quality of his conduct in context and the nature namely (risk to others) was not perceived by him.
The second issue of mental competence is that whether he did not know that the conduct was wrong: He said he did not know that the conduct was wrong for reasons much the same as those listed in paragraph above. He was capable of controlling the conduct however as he felt that he was acting rationally at the time he went ahead and lit the fire.
I have looked at the other information hence it is my opinion that he meets the criteria of being mentally incompetent to commit the offence.
Looking at the papers which were supplied to me and specifically looking at the questions as set down and listed in the paper: R vs Adam – DPP Proposed Questions (final agreed version). I make the following comments.
The issue is that of examining the wrongfulness: In my opinion Mr Adam’s mental state was so affected by his mental illness and it was exacerbated by the level of stress and anxiety that he was experiencing at the time, that he did not know the wrongfulness of his actions and that he was unable to reason about his actions. This is a level of psychosis as listed by Dr Ferris which relates to the main symptoms of psychosis i.e. that of impaired insight and also of impaired judgment. Impaired insight and faulty judgment are the crucial symptoms of the psychotic process.
The question put to Dr Ferris was whether or not he realised or appreciated that light a fire was illegal. At the time his level of anxiety is such that his reason was impaired to the extent that he did not realise that lighting a fire (in the summer seas) was illegal in spite of having been in Australia for 32 years. This phenomenon of regression is not unusual in people who have a basic impairment of thinking in relation to a serious mental illness.
The second point on which Dr Ferris was questioned was whether or not he was capable of turning his mind to the possibility that people and property could be harmed as a consequence of his actions. Similarly to the first point it is my opinion that his reason was impaired by his mental illness hence he was at that time not able to turn his mind to the possibility that people or property could be harmed. The fact that he spoke with witnesses afterwards to ask whether or not someone had been hurt was after the fact and it was associated with a level of reduced stress namely that he had been found, that he himself had been saved and the danger which was stressing his mind when lost in the blackberry bushes had to a large extent receded.
If the prosecution and the defence agree, 269FA(5), confers a power on the court to dispense with an investigation into the question of an accused’s mental competence and to record a finding that the accused was mentally incompetent at the relevant time. Counsel agreed that I should exercise this power and they submitted that the contents of the three reports were a sufficient basis on which to do so.
Section 269FA(5) provides as follows:
(5) The court may, if the prosecution and the defence agree—
(a) dispense with, or terminate, an investigation into a defendant's
mental competence to commit an offence; and
(b) record a finding that the defendant was mentally incompetent
to commit the offence.
The power conferred by the section is plainly discretionary and, like all other discretions, it is to be exercised in the overall interests of justice. The discretion plainly contemplates that there will be cases where the judge might conclude that the issue of mental competence should be investigated notwithstanding the attitude of the prosecution and the defence. In my view this was such a case. I had reservations about whether the reports D1, D2 and D3 properly addressed the test of mental incompetence. In particular, the reports did not address the question of how Bipolar Affective Disorder satisfied the definition of mental illness and nor did they define mania and psychosis. Although I thought that the doctors probably had the proper tests in mind, I was not prepared to proceed further without evidence that this was in fact so. Accordingly, I was not, at that stage, prepared to exercise my discretion to terminate the investigation and record a finding that the accused was mentally incompetent to commit the offence charged.
I then adjourned the trial so as to enable counsel to consider their respective positions and obtain such further opinions as they saw fit.
Further reports were obtained from Dr Czechowicz. These reports were tendered by counsel for the accused when the trial eventually resumed.
In D4 Dr Czechowicz expressed the opinion that the accused suffered from a mental illness due to a psychiatric condition. He said that the psychosis he had mentioned in his earlier report was, as he understood it to be, “a pathological infirmity of the mind” which, although temporary, was an acute manifestation of symptoms of the illness the accused had suffered from for many years. He said that “psychosis is a loss of touch with reality due to reduced “insight” which results in faulty “judgment” ”. He then went to report as follows:
To answer your specific questions:
(1)At the time of the offence what was Mr Adam’s condition? He was suffering from a mental illness as defined by law. The mental illness at the time sufficient to cause an impairment of reason. The basis on which I have reached that conclusion is interviewing Mr Adam on several occasions, the first one being 17th April 2009 and subsequently when I saw him this year – I have reaffirmed my opinion.
(2)My opinion is based on my history compared with my knowledge and experience of other people suffering from similar disorders namely a baseline of an illness potentially causing pyschosis i.e. a state of mind in which a person is out of touch with reality which is understandable if the person at the time believed they were under threat and were in fear of potential death from exposure.
(3)It may have been an unreasonable fear if an objective assessment were to be made however, in Mr Adam’s case he struggled to escape from the environment which had enclosed him and by failing to do so he became more and more anxious highly confused with the consequence of trying to get help by very inappropriate means. I have no objective evidence that Mr Adam became psychotic at the time except his subjective history which is internally consistent and shows a complete lack of logic. Such behaviour is out of character with pathological fire setters who ensure a means of escape for themselves.
(4)In his situation and if the circumstances of what happened were as Mr Adam had told them to me I have no doubt that he was suffering from a mental illness in keeping with the meaning of the Act namely a state of mind in which reason is so affected that a person does things that later are evident (even to Mr Adam) as being totally inappropriate and which he now cannot logically explain. My explanation is that when one takes a psychodynamic understanding of a person under stress sit is common for the person to undergo a process of regression in which their thinking processes lose all the benefits of maturity that years give us and the person acts like a child of five or less.
Finally, and in D5, Dr Czechowicz amplified and clarified his earlier opinions. He said that Bipolar Disorder is characterised by episodes of severe psychosis which is defined as “a state of mind where the person is out of touch with reality namely lacking insight and judgment”. He said that stress can trigger psychosis and he accepted that the accused had been under the stress of having visitors and their dogs in the house. He also accepted that the accused had decided to take a walk on a 40 degree day with incomplete planning in order to “walk off” his stress. He did not necessarily regard this decision as rational. He was unable to establish whether the accused had missed any of his regular medication. He then stated his conclusions in the following terms:
I have gone into how the condition includes elements of psychosis. The opinion that I expressed in my addendum report in November of this year I still hold. In that report and the earlier report in September I had spoken about a mental mechanism called regression and I had made a comparison that his capacity for judgment and level of reasoning was that of a young child. Hence I reiterate my earlier opinion that Mr Adam suffers from a mental disorder that on the day he was affected by psychotic thinking, which limited his insight and impaired his judgment as he thinking was so affected that he was unable to reason to coherently evaluate the wrongfulness of his actions. His mental illness is a fluctuating condition which is in part controlled by medication but is accelerated when a person is in a state of anxiety which further impairs already fragile thinking.
My prognosis is that given ongoing close monitoring of the medication which goes part of the way that his treatment ought to be supplemented by exercises that instil methods of anxiety control into a person. There are anxiety control exercises that a person need to learn and to undergo training, training like the training to which young men in the military are subjected that allow them to control their person anxiety to throw themselves into situations at which they are at great personal risk.
It is my opinion that given this adjustment namely of improving a person’s resilience to anxiety would enable Mr Adam to avoid the loss of control to which he was subject at the time of irrationally lighting his fires.
Again I had concerns about whether these reports properly addressed the relevant criteria and notwithstanding the agreement of prosecution and defence, I was still not prepared to record a finding that the accused was mentally incompetent.
Against the background of all of these reports, Dr Czechowicz and the accused eventually gave evidence.
It is convenient to deal first with the accused’s evidence.
The accused was 66 years of age at the time he gave evidence. He was born in the United Kingdom in 1946. He immigrated to Australia in 1977 and married in 1978.
The defendant outlined some of his psychiatric history. He said that he was first diagnosed with depression in his early to mid thirties. He said that he had consulted a psychiatrist on a regular basis for many years and that as of the time the offence was said to have occurred he was taking lithium, olanzapine and sertraline as prescribed. He said that he was ordinarily compliant with his medication regime but that he would forget to take a single dose about four times a year, particularly if his routine is disrupted. He said he had experienced manic episodes over the years and that prior to those episodes he had exhibited symptoms of the onset of mania which he described as warning signs. He said these warning signs included agitation, increased physical and mental activity, increased mental acuity and restlessness. He said the episodes of mania started slowly and increased with considerable rapidity and that the symptoms included a belief that mental acuity is improving when third parties can see that the ability to make proper judgments is in fact deteriorating at which stage the episode becomes highly destructive.
The defendant said that in the week leading up to the day of the fire he and his wife had three adult guests and a dog staying in their home. He said that this was uncommon. He said that the presence of the guests and the dog upset his ordinarily peaceful regime and that he felt under agitated and under pressure as a result.
The defendant said that on the day in question he set out to walk from Mt Lofty to Mylor. He was equipped with a map, water, a mobile telephone and a whistle and he was carrying cigarettes and a lighter. He said that it was a warm day. He said that after he arrived in Australia he had joined a number of bushwalking clubs and that he regarded himself as a moderately experienced bushwalker. He said that as part of his training in the Boy Scouts when he was a teenager in England he was instructed about how to light signal fires to attract attention if he became lost while hiking. He said that the bushwalking season is April until November when the bushfire risk is at its lowest. He said he had some general knowledge about bushfires, but not from personal experience.
The defendant said that he walked from Mt Lofty to Bridgewater along the Heysen trail without incident however; he said that after he left Bridgewater he somehow missed the trail and became lost in bushland. He said that he then tried unsuccessfully to retrace his steps and that he then made his way back to the point where he had first realised that he was lost and attempted another route. He said that he found himself fighting his way through shoulder length blackberries. He said after he had been lost for about an hour he was fatigued, he was becoming panicky and he was confused. He described his feelings of panic as increased heart rate, feelings of disorientation and increased energy in an attempt to fight his way out of the blackberries.
None of his evidence about what happened up until this point, on the day in question, is inherently implausible.
It was at this stage that he lit the fire. His evidence on precisely how and why he lit it is as follows:
QNow, on that day a fire was lit; you know that.
AYes.
QCan you take his Honour to that moment, and the moments leading up to the fire and explain what happened.
AWell, I was really at my wit’s end to think what could I do, what should I do. And up popped this idea of ‘Oh, in the boy scouts we learnt to light a signal fire.’ So I managed to find a little sort of bare piece of ground and I kicked away some leaves, as I thought I don’t want it to be too near the other fire – the other flammable material, and just made a little pile of leaves and light that and someone will see the fire and they’ll come and rescue me.
QWhat do you mean by the other flammable material.
AWell, like leaves and grasses, small twigs.
QWas there any space around –
AThere was a little, not terribly much.
QWhat did you actually use to make the fire.
AJust my bare hands.
QWhat material if any from the bush did you use to start the fire.
ASome leaves, grasses and small twigs.
QHow did you ignite the fire.
AWith my cigarette lighter.
QWhat did you expect to happen after you lit the fire.
AWell, I expected a nice column of smoke to just go up into the sky and someone would say ‘Oh, there’s someone who needs rescuing’ (INDICATES).
QWhen you set out you had a mobile phone with you.
AI did.
QThat phone was operating.
AYes.
QAt any time before you lit that fire did it occur to you to simply pick up that telephone and ring for help.
AIt did not. It didn’t enter my head.
QWhen you lit that fire, did it occur to you that it could become out of control.
ANo. Because I had in my mind’s eye a little small fire with a column of smoke above it.
QWhen you lit the fire, did you think about surrounding houses in the area.
ANo, not at all.
QWhen you lit it, did you give any thought to the risk that people could be hurt by a fire.
AI didn’t give any thought to that.
QSo what happened when the fire started burning.
AIt just took off. And suddenly it was a big fire not a little one.
HIS HONOUR
QHow did it take off.
AWhoosh, it was almost like a noise like that.
QDo I take it from what you’ve been saying that it spread from the pile of leaves and other flammable material that you had assembled on the bare patch of earth.
AYes.
QHow big was this pile of material.
AIt might have been 150 mm.
QBy that do you mean width or height.
APerhaps 2, 200 in diameter.
XN
QI can’t hear.
A150 high by 200 diameter.
HIS HONOUR
QThat’s millimetres I think you said.
AYes.
QWhere did it spread to.
AUp the hill. I seem to recall being on a fairly steep slope, it went up the hill (INDICATES).
QAfter you’d ignited your signal fire, what was the next thing which caught alight.
AThe surrounding bush.
XN
QHow did you react.
AI was horrified. This was just something that I hadn’t thought of, and here it was you know, pretty heavy stuff, started a bush fire.
QDid you react to what you’d seen.
AWell, I didn’t do anything. There was nothing I could do.
QDid you make any attempt to put it out or not.
AYeah, I run a little bit further up and tried stamping on it but it was away, it was seconds before, that was it, it went away.
The accused then went on to say that he was ultimately located by the County Fire Service. He said that he did not intend to light a bushfire and he reiterated that he did not turn his mind to the question of risk to people or property. He said that it did not occur to him to blow his whistle or to attempt to use his mobile telephone.
As the prosecution were prepared to concede that the accused was relevantly mentally incompetent, Dr Czechowicz’s opinion was not challenged in cross-examination, Dr Ferris was not called for cross-examination on her reports and her opinions were not otherwise challenged.
The accused’s evidence is broadly consistent with the history he provided to Dr Czechowicz and Dr Ferris. Both of them proceeded on the assumption that the history he gave represented the truth of the matter.
On the basis of their own assessments as supported by information with which they had been provided, Dr Ferris and Dr Czechowicz each concluded that the defendant suffered from longstanding Bipolar Affective Disorder. As has been seen, Dr Czechowicz said that Bipolar Disorder is characterised by recurrent episodes of mania. He said that severe episodes of mania can produce psychosis. He defined psychosis as a state where the sufferer was out of touch with reality and thus unable to perceive reality in the way that a normal person would. He says that an episode of mania can affect the sufferer’s capacity to reason and to think logically. In this regard he said that two diagnostic indicia of whether a sufferer was experiencing psychosis were the level of the individual’s apparent insight into his or her behaviour and the level of judgment they display.
Furthermore, Dr Czechowicz said that stress can be a trigger mechanism for episodes of mania. He said that those who suffer from Bipolar Disorder are more susceptible to stress however, he qualified this by saying that a sufferer who was taking appropriate medication would be less vulnerable to stress and to impairment of insight or judgment however, he said that manic episodes can occur notwithstanding that the sufferer was appropriately medicated. In this regard he also said that episodes of panic can compact on the mental processes and that heat can produce physical stress.
Dr Czechowicz regarded the medication regime described by the defendant as appropriate. He said that missing one day’s medication would usually not have a great deal of impact, but missing several days in succession would. He said that missing one dose of medication may or may not render the sufferer more vulnerable to an episode of mania.
Dr Czechowicz said that the accused would have known that he was lighting a fire and it is plain from what the accused said to SC Francis and from his evidence that he knew that what he was doing was lighting a fire. Whether he thought that the fire he was lighting would confine itself to the leaves that he had piled up is another question.
When Dr Czechowicz’s reports are read in conjunction with his evidence, it can be seen that he is of the opinion that on the day of the fire the accused was experiencing stress arising out the disturbance to his routine caused by the house guests, that this stress was then exacerbated by heat, fatigue and panic arising out of the situation in which he found himself to the extent that his underlying Bipolar Disorder manifested itself in a psychotic episode which in turn limited his insight and judgment to the extent that he was unable to reason about the wrongfulness of his conduct in lighting the fire with the requisite moderate degree of sense and composure. Dr Czechowicz expanded on this by saying that in his opinion irrational thinking led to the accused lighting the fire and that he would not have understood the wrongfulness of his actions in so doing.
Dr Ferris is of a similar opinion. Her views are set out above. Specifically, she said that in her opinion, the accused was “significantly impaired in his judgment and reasoning as a consequence of his elevated mood secondary to hypomania of his Bipolar disorder”. When addressing the accused’s apparent ability to provide a sensible narrative to SC Francis, Dr Ferris said that the accused was not manic or acutely psychotic at the time of the offence. However, and when her reports are read as a whole, it is plain that this is a typographical error and that she was expressing this particular opinion in relation to the time the accused spoke to SC Francis. Dr Czechowicz said that he regarded Dr Ferris’ opinion as congruent with his own, which it plainly is.
Dr Czechowicz went on to express the opinion that the accused was not aware of the wrongfulness of his conduct. His evidence about what he had in contemplation by his use of the word wrongfulness was as follows:
HIS HONOUR
QWhat did you have in contemplation by your use of the word ‘wrongfulness’.
AWrongfulness is a person who is unable to make the correct judgment because of some reason, and the reason that I have proposed is that he was suffering from a mental illness.
QCorrect judgment about what.
ACorrect judgment about the consequences of the action that he was undertaking at that time. Lighting a fire in our conditions, even in March, poses a significant danger to persons and property.
Dr Czechowicz went on to say that it was his opinion that the accused was experiencing a psychotic episode at the time that he lit the fire which caused him to think irrationally and thus to light the fire. He also expressed the opinion that the accused had been subject to a combination of escalating stressors which would have taxed his mental resilience which could have exacerbated his level of psychotic thinking to the extent that it would have effected his capacity to reason in the sense of his ability to think logically and rationally and to make judgments.
Finally, Dr Czechowicz dealt with what he called regression. This arose in the context of the accused’s evidence that he had been taught to light signal fires when he was a boy scout. Dr Czechowicz said that the psychotic episode which the accused was suffering had led his thoughts to regress back to his childhood.
What is factual context in which the issue of mental competence is to be determined?
The issue of the mental competence of the accused to commit the offence charged is to be determined as at the time he performed the act which caused the bushfire. That act must therefore be identified.
The accused said he lit what he intended to be a signal fire that spread to the surrounding bush. The only other possibility is that he directly ignited a section of the bush.
In view of the conclusion I have reached on the issue of the accused’s mental competence, it is not necessary to determine, which it was at this stage, and for present purposes I will proceed on the basis of the accused’s evidence, that he lit what he intended to be a signal fire.
Was the accused suffering from a mental illness within the meaning of the Act?
The opinions of the psychiatrists were not challenged. There appears to be ample material to support their conclusion that the accused was suffering from a Bipolar Affective Disorder of long standing and I am thus satisfied on the balance of probabilities that he was.
The issue thus becomes one of whether Bipolar Disorder is a pathological infirmity of the mind and thus a mental illness for the purposes of the Act.
The test of pathological infirmity of the mind and thus of mental illness set out in Radford, as approved and qualified by the High Court in Falconer, was propounded by King CJ in the context of a charge of homicide and the observations of Lord Denning in Bratty were made in the same context. The test and the observations must thus be adapted to the circumstances of cases which do not involve physical violence in the ordinary sense and in such a way that appropriately reflects the test, the observations of Lord Denning, and the policy considerations underlying both.
The test can appropriately be adapted in these terms: Conduct which would ordinarily amount to the objective elements of a crime which results from an underlying malfunction of the mind which is likely to recur rather than from the reaction of an otherwise healthy mind to extraordinary external stimuli amounts to a pathological infirmity of the mind and thus to mental illness.
The issue thus becomes one of whether, on the evidence, Bipolar Disorder satisfies this test.
Those who suffer from Bipolar Disorder are prone to experience recurrent episodes of mania and psychosis in the sense of a loss of touch with reality in the further sense of an inability to see reality as a normal person would. An accumulation of stressors can cause episodes of psychosis. It can thus be seen that stress can cause the sufferer to lose touch with reality in the sense of losing the ability to see reality as a normal person would. These are not the reactions of an otherwise healthy mind to extraordinary external stimuli. As the episodes of mania are likely to recur, even if appropriate medication is prescribed, the Disorder cannot be regarded as anything other than an underlying malfunction of the mind and thus to a mental illness for the purposes of the Act.
Accordingly, I am satisfied on balance that the accused was suffering from a mental illness within the meaning of the Act. Indeed, the prosecution does not contend otherwise.
Did the accused lack sufficient understanding to know that the conduct was wrong?
In most cases where mental competence is in issue the conduct in question is both readily identifiable and self-evidently wrong according to the everyday standards of ordinary people.
As I am proceeding on the basis of the accused’s account of the matter for the purposes of determining the issue of his mental competence, the relevant conduct is thus his lighting of the leaves he had piled up on the patch of ground he had said he had cleared.
As a matter of commonsense and experience any ordinary person would regard any conduct which created even the slightest risk that a bushfire (as defined in the Act) might be caused as being the wrong thing to do.
The issue thus becomes one of whether the accused has satisfied me on the balance of probabilities that at the time he lit what he intended to be a signal fire, and to adapt what Sperling J said in Jones and what Sulan J said in Ey, his underlying Bipolar Disorder, irrespective of whether or not it had manifested itself in mania or psychosis, had affected his capacity to understand the implications of what he was doing to the extent that it was not self-evidently wrong to him to do what he in fact did.
As set out, Dr Czechowicz said that the accused would have known that he was lighting a fire and it is plain from his evidence that he knew that that was what he was doing. As also set out, he said that the stressors which the accused was subjected to on the day in question affected his underlying Bipolar Disorder to the extent that the disorder manifested itself in a psychotic episode which in turn limited his insight and judgment to the extent that he was unable to reason about the wrongfulness of his conduct in lighting the fire with the requisite degree of sense and composure in that he would not have understood that it was wrong to do what he did in the sense that he would not have been able to judge that lighting a fire “in our conditions, even in March, poses a significant danger to persons and property”.
As also set out, Dr Ferris was of the opinion was that notwithstanding that the accused was not manic or in a severely psychotic state at the time, he was unable to “specifically know the wrongfulness of his act”.
Obviously, if the accused was actively psychotic at the time, as postulated by Dr Czechowicz, the possibilities that he was deprived of the capacity to distinguish between right and wrong according to ordinary everyday standards is significantly increased.
As can further be seen, the accused said that all he wanted to do was to light a signal fire. He said that he found a piece of bare ground, that he kicked away some leaves because he did not want the leaves he piled up to be too close to “the other flammable material” in the form of leaves, grasses and twigs and that he contemplated a little small fire with a column of smoke above it. He said that the pile of leaves he built was about 15cm high and about 20cm across. He said that he lit the leaves with his cigarette lighter, that it took off and that the surrounding bush caught fire and that suddenly it was a big fire and not a little one. He said that it did not occur to him that it might burn out of control because he only contemplated a small fire.
The potential impact on the opinions of Dr Czechowicz and Dr Ferris of this evidence of the accused’s about what he had in mind, about what he wanted to do, how he went about it and, significantly, about what he wanted to avoid is self evident.
As Dr Czechowicz gave evidence after the accused had given his evidence, I called the matter on for further hearing after I had reserved my decision for the purpose of giving counsel for the accused the opportunity to consider the potential ramifications of this evidence and to respond to it if she wished.
An addendum report was obtained from Dr Czechowicz addressing this issue. It was ultimately tendered by counsel for the accused and marked D8. No further report from Dr Ferris was tendered. Counsel for the accused intimated that she did not propose to apply to re-call Dr Czechowicz and prosecuting counsel did not require him to be called for further cross-examination.
In D8 Dr Czechowicz reported that he had read the relevant passage of the accused’s evidence and that he had noted that the accused had said that he recalled his experience in the scouts and that what eventually caught fire was the “surrounding bush”. He then expressed his opinions as follows:
I considered the information in the transcript which was very similar to the information obtained by me in several interviews that I had with Mr Adams. At the time of my examinations I had concluded that he had “regressed”. Such regression occurs at times of severe mental stress and the description that Mr Adam gave about how his mind worked at the time he lit the fire describes such a process. I have noted that in the transcript he makes reference specifically to his Boy Scout training in the northern hemisphere. I had addressed this issue in my report dated 29/9/2010 when I elaborated on various types of fire setters associated with emotional disturbance. In this case the emotional disturbance is interwoven with the chronic mental illness from which Mr Adam suffers for which he had been getting and continues to get treatment. At the times of these events I have alluded to a probably hiatus in his treatment hence a greater level of susceptibility to a psychotic manner when experiencing emotional turmoil i.e. he believed that he would risk his life by being lost in the bush and not being found. To our rational minds it is difficult to imagine that an adult person lost in the Adelaide Hills was likely to expire however, that would not be so if one operated with a limited perspective of a 5 yr old to which the regression had driven Mr Adam. Hence his decisions were far from rational and he was unable to evaluate the facts of his surroundings and his circumstances at the time.
In brief, I still hold my opinion as I stated to the court that Mr Adam at the time of the event had a mental impairment and that his mind was unable to rationally evaluate the facts especially those related to the possible consequences of his actions and the risks involved.
As can be seen from the report, Dr Czechowicz was of the view that regression had put the idea of lighting a signal fire into the accused’s mind. Although regression might be symptomatic of a manifestation of the accused’s mental illness it is not of itself determinative of the critical question of whether the accused was unable to understand the wrongfulness of his contemplated conduct even though his intentions and where he got the idea from were abundantly clear.
As can also be seen, Dr Czechowicz is of the opinion that the accused’s conduct was irrational, that he was unable to evaluate his situation, that he had regressed to the point where his perspective was that of a five year old and that he would have been unable to evaluate the possible consequences of his actions and the risks involved.
It seems implicit in the way Dr Czechowicz ultimately expressed himself that it was opinion that notwithstanding the accused’s own evidence about how the lit the fire, he was psychotic and he had regressed to the extent that he was unable to evaluate whether or not lighting what he intended to be a signal fire was wrong according to everyday standards.
It is plain from the summary of the accused’s evidence at [] that he kicked some leaves away because he did not want to light his signal fire too close to the surrounding flammable vegetation. It is necessarily implicit in his evidence in this regard that he recognised the risk that lighting his signal fire too close to the vegetation might set it alight and also that he did not want to set the scrub alight.
It is also plain from the accused’s evidence that he comprehended the situation in which he had found himself and that he had come to the conclusion that he needed to summon assistance in order to alleviate his predicament. At worst the conclusion he came to might have been totally wrong but it cannot be said to be totally irrational. His ability accurately to comprehend his predicament and his ability to reason that he needed assistance is inconsistent with his mind being disabled to the extent that he would have been unable to know what was wrong according to the standards of ordinary people.
It is then plain that the first option he considered was to light a signal fire and that the options of using his whistle or his phone did not occur to him. The option that he settled on was plainly the worst of the options that was available to him but his choosing it does not of necessity mean that he was not thinking rationally enough or that it would not have been self-evident to him that lighting a signal fire was wrong.
Notwithstanding that he might have been psychotic and that he might have regressed, it is thus plain from his own evidence that the accused had retained the capacity to reason in the way that he said that he did and to recognise the risk that the bush might be set alight if he lit a signal fire and also to identify and implement the steps that were available to him to obviate or minimise that risk. His ability to recognise the very risk which made lighting a signal fire wrong according to the standards of ordinary people and to recognise that it was a risk he should attempt to obviate demonstrates that it was self-evident to him that lighting a signal fire in such a way that it created a risk that the surrounding scrub might be set alight was something that he should not do.
In this regard, and as can be seen, an error of judgment does not necessarily mean that the accused did not know that what he was doing was wrong. The fact that he did not think that the scrub would be set alight is thus not to the point in the sense that it does not of itself demonstrate that he lacked the capacity to recognise that what he was doing was wrong.
It follows that it is my view that Dr Czechowicz gave insufficient weight to the implications of the accused’s own evidence and that neither his ultimate opinion nor that of Dr Ferris can survive them.
It follows that I am not satisfied that it is more probable than not that the accused did not know that the relevant conduct was wrong or that he was unable to reason about the matter with a moderate degree of sense or composure, as that expression is properly understood.
The presumption contained in s269D has not been displaced and pursuant to s269G(B)(3)(B) of the Act, I record a finding that the presumption of mental competence has not been displaced.
Have the prosecution proved the subjective elements of the charge?
Also pursuant to s269G(B)(3)(B) I must now “proceed with the trial in the normal way”. This involves determination of the question of whether the prosecution have proved the subjective elements of the charge beyond reasonable doubt.
Pursuant to s269GB(4), and for the purposes of proceeding with the trial in the normal way, the “objective elements of the offence are to be accepted as established”.
As can be seen from [4], the subjective elements of the charge require proof that the accused either intended to cause a bushfire or that he was “recklessly indifferent as to whether his … conduct caused a bushfire”. As can also be seen from [4], a bushfire is a fire “that burns, or threatens to burn, out of control causing damage to vegetation”.
As the objective elements of the offence are to be taken to have been established, I am satisfied that the accused’s conduct caused a bushfire within the meaning of the Act. Determining whether he caused the bushfire intentionally or with an attitude of reckless indifference involves a consideration of precisely how the bushfire itself was caused.
As has been seen, it is self-evident that if the accused caused the bushfire he must have done so either by lighting a signal fire, which in turn ignited the surrounding scrub, or he must have somehow directly ignited a section of the scrub itself.
As has also been seen, the accused’s account of events was not challenged by the prosecution. In particular, it was never directly put to him that the reality of the matter was that he had not lit a signal fire but that he had deliberately and directly set fire to the surrounding vegetation.
Evidence which passes uncontradicted and unchallenged by cross examination should ordinarily be accepted unless it is inherently implausible. Precision Plastics Pty Ltd v Demir[29].
[29] (1975) 132 CLR 362 at 371-372 per Gibbs J.
As set out, the accused was carrying a mobile phone and a whistle. The inherent probabilities of the situation are that a person in his position would attempt to use either his mobile phone, or his whistle, or both before embarking on the potentially highly dangerous alternative of lighting a signal fire in the Adelaide Hills in autumn. Viewed in isolation, the accused’s evidence that he did not think to use his whistle or his mobile phone and that he lit what he intended to be a signal fire instead is plainly implausible.
The accused’s evidence cannot however, be considered in isolation. The questions of whether his Bipolar Disorder manifested itself in mania or psychosis and, if so, with what severity, and whether his reasoning and his judgment became compromised and, again if so, to what extent must be considered, as must the question of whether anything else might have affected his reasoning and his judgment.
If it remains a reasonable possibility that the accused’s judgment and reasoning was affected by mania or psychosis, as Dr Czechowicz believes, but not to the point where he was unable to distinguish right from wrong, or if it is reasonably possible that his reasoning and judgment was otherwise compromised, then his evidence that he lit what he intended to be a signal fire might not be so implausible that it ought to be rejected and the alternative accepted beyond reasonable doubt.
The accused has a history of mania secondary to his Bipolar Disorder. There is evidence of the existence of a combination of stressors which had the capacity to lead to an onset of mania. There is no evidence to the contrary. The possibility that this combination of stressors did in fact exist thus cannot be excluded. Dr Czechowicz’s opinion that this accumulation of stressors induced an episode of psychosis and Dr Ferris’s opinion that the accused’s judgment and reasoning was impaired secondary to hypomania are also unchallenged and, again, there is no evidence to the contrary.
The fact that the accused was mentally competent at the relevant time does not of itself exclude beyond reasonable doubt the possibility that his judgment and reasoning did in fact become compromised by psychosis, albeit not severe enough to render him mentally incompetent, mania, panic, or by some other aspect of the exigencies of the situation in which he found himself, or by some combination of some or all of these factors.
The possibility that the accused’s judgment and reasoning became compromised in this way must thus be taken into account.
The inherent unlikelihood that a person whose judgment and reasoning was not compromised would light a signal fire is, in my view, insufficient to exclude beyond reasonable doubt the possibility that the accused’s judgment and reasoning became compromised to the extent that notwithstanding that he was still able to differentiate between right and wrong, he nonetheless impulsively and stupidly lit what he intended to be a signal fire.
As this possibility cannot be excluded, it follows that the question of whether the prosecution have proved the subjective elements of the charge stands to be determined on the basis of the accused’s evidence that he was intending to light a signal fire comprised of leaves, grasses and twigs.
Intentional lighting of the bushfire in the sense of directly igniting the scrub cannot arise on this basis. The question of whether the accused was recklessly indifferent thus arises for consideration.
The question of what amounts to reckless indifference for the purposes of s85(1) of the Act was considered by White J in Tziavrangos v Hayes[30] and by Perry J in Durward v Harding[31]. Section 85(1), amongst other things, makes it an offence to damage property intentionally, “or being recklessly indifferent as to whether property … is damaged.”
[30] (1991) 55 SASR 416.
[31] (1993) 61 SASR 283.
In reliance on White J’s reasoning in Tziavrangos, and as Perry J concluded in Durward, that the elements of reckless indifference are relevantly:
1. The existence of a risk that the conduct might cause damage.
2. That the accused was aware of the particular risk.
3. That the accused proceeded notwithstanding his awareness of the risk.
As can be seen, if the particular accused does not advert to the particular risk, then he cannot be said to have been recklessly indifferent to that risk.
Section 85 is in the same part of the Act as s85B. Both deal with analogous conduct. The expression “recklessly indifferent” is not qualified for the purposes of either section by the wording of the particular section in such a way as to give the impression a different meaning for the purposes of each section. There is thus no reason why the elements of reckless indifference as identified in Durward should not apply to charges brought under s85B.
The existence of the residual possibility that the accused’s judgment and reasoning were compromised must also be taken into account in considering whether the prosecution have proved each element of reckless indifference to the requisite standard.
As can be seen, the accused initially adverted to the risk that lighting what was intended to be a signal fire too close to the surrounding scrub could have caused the scrub to ignite, and that he took steps to obviate that risk, and that after he had done so it did not occur to him that things might burn out of control.
It is necessarily implicit in the accused’s evidence that he thought it was safe to light the pile of leaves, grasses and twigs after he had kicked away the leaves, and in this regard he said that starting a bushfire “was just something that I hadn’t thought of”. As the possibility that he did in fact intend to light a signal fire cannot be excluded, and as there is nothing to suggest that he did not, in fact, go about in the manner that he described, the possibility that he did not advert to the risk that a bushfire might then be caused after he had kicked the leaves away cannot be excluded either.
The possibility that his judgment and reason were compromised plainly also bears on the question of what he might or might not have adverted to and increases the possibilities that immediately before he applied his cigarette lighter he did not, as he says, advert to the relevant possibility.
I am thus not satisfied that the prosecution have proved that the accused was relevantly recklessly indifferent.
I enter a verdict of not guilty accordingly.
My ultimate conclusion about the factual basis on which the question of whether the prosecution have proved the subjective elements of the charge was to be determined and my verdict of not guilty should not be taken to mean that I positively accept the accused’s evidence that he was merely intending to light a signal fire and that he went about it in the way that he said that he did. In fact, I do not accept his evidence in this regard. But my non-acceptance of his evidence does not necessarily mean that the contrary has been proved beyond reasonable doubt and the psychiatric evidence is such that the possibility that he did in fact act in the way that he says that he did cannot be excluded to the necessary standard. If the standard of proof was on the balance of probabilities, the position might well have been different, and if the Scottish verdict had been available to me I would have returned it.
I feel constrained to say that the ultimate result might have been avoided if the now repealed s88 of the Act had been re-introduced when s85B was introduced. Amongst other things, that section provided that it was an offence punishable by life imprisonment to unlawfully and intentionally set fire to grass.
I should also add that nothing I have said in these reasons is to be regarded as any criticism whatsoever of counsel for the prosecution.
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