R v Berlingo No. Sccrm-01-296

R v BERLINGO
[2003] SASC 109
Criminal
Olsson AJ
Preliminary

In this matter the accused stands charged with the offence of murder. He has pleaded not guilty and elected for trial by Judge alone.
At the outset of the trial, it was indicated that the question of the accused's mental competence to commit the alleged offence, at the time when it was said to have been committed, was to be an issue raised as a defence.
Following discussion with counsel, I directed, pursuant to the provisions of s 269E of the Criminal Law Consolidation Act, 1935 ("s269E"), that the question of the competence of the accused to commit the alleged offence be separated from the remainder of the trial. It was common ground that it would be most appropriate to proceed first with the trial of the objective elements of the offence, as the factual evidence to be led in relation to them could well form an important context for consideration of the issue of mental competence.
The charge against the accused
The information against the accused asserts that, on 12 August 2001 at Hope Valley, he murdered his wife Francesca Berlingo.
To make good that charge the onus is on the Crown to prove beyond reasonable doubt that the accused unlawfully killed his wife, with the positive intention, at the time of the killing, of causing her death, or at least occasioning her grievous bodily harm.
It follows that the Crown must discharge its onus as to four separate and successive elements, which go to constitute the offence.
The first matter that the Crown must prove is that some act or acts of the accused caused the death of his wife.
The second is that any relevant act or acts of the accused, which in fact caused the death of his wife, were conscious and voluntary acts on his part.
Next, the Crown must prove that the act or acts causing the death of the accused's wife were unlawful.
Finally, the Crown must prove that, at the time at which the accused is said to have caused his wife's death, he positively intended to either kill her, or at least cause her grievous bodily harm.
So far as this last element of the crime is concerned, the expression "grievous bodily harm" means really serious bodily injury.
A person's intention is a fact and may be proved like any other fact. Very often, the best evidence of what a person intends is the inference which can be drawn from what that person says and does. If, for example, a person loads a pistol and discharges it at another, the inference is likely to be drawn that he intended to wound or kill that person.
I bear in mind that an intention is no less an intention because it is formed spontaneously. The intention required by the law to constitute an offence need not be planned or premeditated. It may be formed on the spur of the moment.
The Crown case is based on the proposition that the obvious intention of the accused can be divined from three specific aspects of the evidence, namely -
(1)The very nature of the act of manual strangulation asserted against the accused;
(2)The force said to have been applied to the neck of Francesca Berlingo, as evidenced by the bruising and injuries found at autopsy; and
(3)The accused's statements to the police after the alleged strangulation, which indicate a specific intention to kill Francesca Berlingo.
(I will return to these aspects in more detail in due course, when I review certain of the evidence.)
I bear in mind that, if I am ultimately satisfied that the death of Francesca Berlingo was caused by the unlawful, conscious and voluntary act or acts of the accused, but I am not satisfied that, at the time of any such act or acts he had the specific intent to kill her, or at least cause her grievous bodily harm, it will then be necessary for me to consider the potential issue of manslaughter.
If the accused caused the death of his wife by an act or acts that were conscious, voluntary, unlawful and inherently dangerous, then he would have committed at least the crime of manslaughter.
Thus, if he intentionally inflicted some type of force on his wife, without lawful excuse, then his act constituted an unlawful assault. Accordingly, if the Crown establishes that the accused manually strangled his wife, such an act of strangulation would plainly have constituted an unlawful assault.
An act constituting an unlawful assault is to be considered dangerous if a reasonable person, in the accused's position, would have realised that the act in question would have exposed the deceased person to an appreciable risk of serious injury.
It follows that if I am satisfied that the accused killed his wife by a process of manual strangulation, that his actions were, in the circumstances, voluntary and unlawful, and that they were dangerous, in the sense to which I have referred, but the fourth element of the crime of murder has not been established beyond reasonable doubt, then the accused would be not guilty of murder, but guilty of manslaughter.
If at least all of the elements of manslaughter have not been proved beyond reasonable doubt, then the accused must be found not guilty.
Superimposed upon those considerations is the need to address the legal aspects of the defence of mental incompetence. I will come to the relevant statutory provisions in that regard in due course.
The personal background of the accused
At the time of the alleged offence the accused was a man 72 years of age. He was born in a village in Calabria, Italy on 16 March 1929. He had little formal schooling. He attended a village school in Italy up to grade seven, but described himself as a poor student. His performance was at least such that he was promoted, year by year, up to the final grade. His spoken Italian is an old regional Calabrian dialect. He told the police that he emigrated to Australia in about 1949 at the age of 20 and, on arrival, was unable to speak, read or write English. He did not undergo any further formal education after arrival and is said by Dr Burrow to be functionally illiterate to some degree.
The evidence is by no means definitive as to the precise mode of employment of the accused in Italy. The case history obtained by Dr Raeside indicates that, on leaving school, Mr Berlingo learnt the trade of a tailor and continued to work at that trade until he came to Australia. I infer from the material before me that he must have learnt his trade by some type of informal apprenticeship with an established tailor.
After arrival in Australia the accused achieved sufficient competence in the spoken English language both to enable him to gain employment and also attend to his day-to-day affairs. He speaks, reads and understands basic English. The evidence indicates that, at home, the family normally spoke their Italian dialect and, in most areas of social discourse, such as the church environment and in family and social club settings, the dominant language spoken was Italian.
A video record of interview played in the course of the trial indicates that the accused speaks quite fluent basic English, albeit with an accent, and that he had little apparent difficulty in understanding questions put to him. He was, however, unable, on several occasions, to re-state the substance of what was said to him. This seemed to reflect some problem with short-term memory of actual words used.
On arrival in Australia the accused found that work in his trade was very scarce. Following short periods of employment in several forms of unskilled employment he obtained a permanent position with General Motors Holden as a metal finisher. Mr Berlingo continued in that capacity for almost 40 years until he eventually retired. He took a termination package in about 1992.
The accused married his wife Francesca Berlingo by proxy in about 1956. She was some seven years younger than him. She arrived in Australia in about 1958. The accused came to Australia first to find work and establish a home.
There were three children of the marriage namely Rosa Rita Berlingo, Giuseppe Anthony Berlingo, and Grace Seneca (nee Berlingo). All three gave evidence before me.
Of recent years the accused has had a variety of medical problems. However, the most significant of these, for present purposes, is cardiac illness associated with an earlier history of hypertension. He was diagnosed as having ischaemic heart disease with angina which led to him having coronary angioplasty in 1994 and 1995. He has exhibited atrial fibrillation and cholesterolemia. As at the time of his wife's death he was on a substantial range of medications for those conditions and other medical problems.
The narrative facts
At about 10.45 am on Sunday 12 August 2001, Giuseppe Berlingo was at his home at 59 Berri Road Hope Valley. This was only a short distance from the accused's house. He heard a knock at the front door and, when he opened it, found his father outside. His father had a couple of scratches near his left eye and another on one of his arms.
The accused came into the house. He commenced to cry, said that he was sorry for what he was about to tell Giuseppe and asked Giuseppe to forgive him. He told Giuseppe to ring up an ambulance and not to go to his place.
Giuseppe's wife Settimina ("Mina") was away at church at the time, but his sister-in-law Annalisa Agresta was present in the house, although she was on the telephone when the accused arrived.
Annalisa thought that the accused actually arrived at about 11.23 am. While still on the telephone, she heard the accused say something to the effect of "I'm a criminal, she is not there any more, I don't deserve to live". Annalisa terminated the telephone call and went into the lounge room to see what was happening. She immediately noticed that the accused had blood on his left lower arm, the left side of his face and blood stains on his clothing.
Annalisa went to telephone an ambulance to go to the parents' address. Giuseppe got his car keys and drove his father back to 23 Berri Road Hope Valley. Annalisa followed shortly thereafter.
On arrival Giuseppe and his father went into the house, by a door that leads off the carport. He saw his mother lying, partly on her back and partly on her side, on the floor of the family room area. Her eyes were closed and she did not respond when he spoke to her. There was blood on the back of her head.
His father was, at that point, standing next to Giuseppe. He was crying and saying that Giuseppe's mother was gone and that Giuseppe couldn't help her. He also said that he would be going too.
The two men went to the lawn area at the back of the house. Giuseppe asked his father why he had done this. The latter replied that, after all these years, the build up, he just couldn't take it any more and that he would be gone soon.
The police arrived at the house at about 11.41 am.
Both Giuseppe and Annalisa said that he, Giuseppe, had spoken with his mother earlier the same morning. Giuseppe thought that this was at about 9.45 am, although Annalisa thought that it was at about 10.45 am. Giuseppe said that he had invited both parents to dinner that night. There was, according to him, no indication of trouble between his parents. Indeed, Giuseppe said that he had never, previously, seen any violence between his parents.
The accused's daughter Rosa lived at home with her parents. She said that there had been no previous serious disharmony between them. On the day in question she had left home at what she thought was about 10.30 am to go to a friend's place at Salisbury Downs. Her parents had been made aware that she proposed being away all day. There had been no arguments before she left, or anything unusual about her parents' behaviour. She had been at home the previous evening and did not know of anything that might have caused friction or tension between her parents. When she left the house on the morning of her mother's death the latter was in the house listening to the radio and her father was outside in his "shed". This was a small room that had been constructed at the rear of the garage, by enclosing portion of the back verandah as shown in the plan annexed to the declaration of Brian John Kay and marked “Sun Room”.
She made the point that her mother was a stronger personality than her father. Her mother would, on the majority of occasions, make decisions relating to the household. Her father, who was a calm and patient man, would never disagree. Rosa was unaware of any substantial conflict between them. She considered that her parents had a close relationship, although they did not exhibit a great deal of overt physical or emotional affection towards one another. They also did not exhibit significant overt anger or any violence towards one another. They only had a very limited social life.
An ambulance was despatched at 11.22 am and arrived at 23 Berri Road Hope Valley at 11.44 am. The paramedics pronounced Mrs Berlingo dead shortly after arrival. Her face was cyanotic and she had blood stained saliva coming from the left side of her mouth and from her left nostril. The anterior throat region had marked bruising in the form of horizontal marks, which were a mottled red colour. There were no signs of rigor mortis.
Professor Byard, a pathologist, estimated death at 9 am, plus or minus three hours. He conducted a post-mortem examination of the body. He found that death was due to manual strangulation. He noted that there were abrasions around the neck and bruises in the neck strap muscles, being caused by the forceful application of hands to the neck of the deceased.
It was his view that the relatively well localised bruises in some of the muscles of the neck were typical of those caused by fingertip pressure. The pressure on the neck had been severe enough to cause fracturing of the underlying hyoid bone and thyroid cartilage. The forces on the neck had been applied for long enough to cause congestion of the face, pinpoint haemorrhages (petechiae) of the face and eyes, haemorrhages of the eyes, and ultimately loss of consciousness and death.
There were some linear abrasions around the neck which could have been caused by movement of the necklace chain worn by the deceased; and a short, curved superficial abrasion to the left side of the neck could have been caused by a finger nail - if the deceased had attempted to prise away the assailant's hands. They may equally have been caused by one of the assailant's fingernails.
The Professor also noted the presence of multiple minor bruises and abrasions on other parts of the body, which were indicative of a struggle prior to death. There was bruising of the back of the head, to the soft tissues of the left side of the chest, the soft tissues of the upper chest and jaw, a laceration behind the ear, an injury to the tip of the tongue, and injuries to the hands, knuckles and right wrist.
Constable Savage stated that she arrived at the accused's home at about 11.41 am on 12 August 2001. She noted that Giuseppe and his father were both in the driveway. Giuseppe was near the roadway and waving to the police vehicle to stop and come towards him. This witness said that, as she approached the two males, the accused looked up at her and said "I murdered my wife." She replied "How did you do that?" His response was "I strangled her." Constable Savage then said to the accused "I warn you that anything you say may be taken down and given in evidence. Do you understand?"
At the time, Constable Savage noted that there was a small amount of dried smeared blood on the right front area of the grey, long sleeve windcheater which he was wearing. There was also a small amount of dried smeared blood on the back right area of the windcheater, near the shoulder. The accused was exhibiting about three scratches to the right side of his face on his cheek and had two scratches under his nose. There were also several small scratches to his left forearm.
The accused was interviewed by Detective Senior Constable Shaw and Detective Constable Smith at the Holden Hill police station, commencing at about 1.42 pm that day.
The interview took place shortly after the accused had had an opportunity of discussing his situation with a duty solicitor from the Legal Services Commission.
At a relatively early stage of the interview the accused was fully cautioned, having earlier been placed under arrest on suspicion of murder.
It was not a simple task to assimilate and understand precisely what it was that the accused was attempting to say in the course of a number of quite lengthy and rambling responses to questions asked of him. At times he was obviously very agitated. He presented with a quite bizarre episode of jocularity when the detectives introduced themselves at the commencement of the record of interview. For much of the time he fiddled with his reading glasses on the desk in a somewhat odd, repetitive fashion. At times he became agitated and upset with the police because he seemed to think that they were preventing him from telling his story and were asking unnecessary questions. He insisted that he had done wrong, had killed his wife and had to be punished for it.
In response to question 132 "Do you want to tell me what happened this morning?", the accused replied "I kill my wife. I strangle her." In answer to the following question the accused said "She tried to, she tried to defend herself. And she dragged me everywhere. The glass is broken, you see the glasses, you know, that normal glass is?" [He was here obviously referring to his spectacles.]
When asked "… how it all started?" the accused embarked upon a long rambling series of answers concerning a discussion which he had had that morning with his wife. This seems to have ranged over topics such as the invitation to dinner that evening, the fact that Giuseppe had apparently married someone of a different religious persuasion, a proposed trip to Queensland and its cost and restrictions which his wife had placed on turning on the gas heater.
It is extremely difficult to determine, from the record of interview, any rational or specific cause that had actually triggered off the physical interaction between the parties. The accused said that, at one point in his conversation with her, his wife commenced to cry, whereupon he lost his temper and killed her.
In answer to a question (196) "How did you get injuries to your face and arm?" The accused replied " With her hands. She got it from the fighting, went for a like I got shot there, got there from the hair but she tried to …" He went on to say "That happened because I put my hands on her throat and she with her hands tried to grab me on the side there or something. But I talked to myself, you’ve got no choice, this will be the end of your life." When asked whether one of the injuries was that on his arm, the accused agreed that he received it when his wife "tried to save herself".
A little further on in the interview these exchanges occurred -
"Q207        When you grabbed her, what were you going to do?
A              Kill her.
Q208        So you had made your mind up to do that?
A              Hey?
Q209       You’d made your mind up, had you?
A            No, no, I don't think so. I make my mind before.
…
Q211       How long ago?
A              Ah, because in this, since my son is getting married.
Q212        Since April?
A              In April."
Shortly afterwards, in response to a question as to whether he meant to kill his wife, the accused said -
"Yeah, I need to kill her because I can't handle any more. I have two choice. I said, how many time do I have to say I got two bloody choice. Kill myself or kill her?"
When asked whether he understood what was going to happen to him now, the accused responded that he understood -
"Because I have to pay for, I have to pay for, I done something, I don't like to do it.
…
But I have to. I had to. She forced me to do it. The other way, I've get to kill myself. I killed myself, know what's meaning, I am to enjoy, the, the house I build up."

A little later in the interview the accused was asked whether, when he had the argument with his wife, she assaulted him at all. He responded "Yeah because she reckon I am no good husband." When asked at question 271 "When did she do that?" the accused replied "When, before I tried, that's when I were, I lost my temper. I tried to do my best for the family but I am no good husband." He said that his wife had grabbed his face and dropped his glasses down. That was after he had first grabbed her. (He was here again referring to his spectacles).
As I understand what the accused later said it was to the effect that his wife complained about spending money, to the point at which he could never enjoy himself. This appears to have culminated in relation to Giuseppe's wedding, concerning which she was making statements to the effect that there was his new wife enjoying herself after his son had "put the money on". He also referred to taking his retirement money to the bank. It was originally invested in his name, but his wife then went down to the bank and without his knowledge changed the investment into the joint names of himself and herself, because it came through a joint bank account.
Finally, when asked why he waited for his wife to go cold before going to his son's place, the accused replied (Q333) -
"Ah well, I was upset. I tried to kill her and then do something about it. But my mind was to kill her. To finish, complete."
He went on to agree that he wanted to make sure that she was dead.
A careful study of the record of interview does not render it clear, even given the references above recited, precisely what it was that really triggered off the strangling of Francesca Berlingo. Specifically, it is not obvious why the accused said that he could not "handle any more" and why he had to kill his wife, or kill himself.
Be that as it may, the accused was charged with murder and placed in custody at that stage.
The presentation of the accused pre 12 August 2001
The three children of the accused each gave oral evidence in amplification and extension of their written statements. As Dr Donald Burrow, a specialist neurologist, pointed out in the course of his evidence, there was a high degree of unanimity in what they had to say. I find it unnecessary to embark on a detailed analysis of the evidence given by each of them individually, which I accept. Suffice to say that, collectively, they made these points -
(1)Their father was a quiet man, not given to violence. He had never before displayed physical aggression either to his wife or to them;
(2)The act of strangling their mother came as a complete shock to them, as the violent behaviour involved was quite out of character and there had been no recent overt sign of animosity or aggression between their parents;
(3)The accused was a patient person and there were never any serious disputes with his wife. At worst, there were occasional trivial arguments concerning domestic matters and these did not persist for long;
(4)He kept the garden immaculate up to the time of his wife's death and spent a good deal of time in the "shed" which he had personally built adjacent to the garage, and set up as his own "space";
(5)In the year or so prior to 12 August 2001 the accused became quieter and increasingly more withdrawn. It was noticeable that, when a family conversation occurred, he would, not infrequently, seem to be in his own separate world. Then, some time after a topic had been discussed and concluded, and the conversation had moved on, he would inappropriately give some delayed response to that topic. At times he appeared confused in relation to a prior conversation and also somewhat vague;
(6) On occasions when some contentious domestic topic arose between the accused and his wife (such as Mrs Berlingo's concern about Mina's religious affiliations) the accused would simply walk away, rather than become involved in an ongoing heated debate. This seems to have become more apparent in the lead up to 12 August 2001, when, at times, the accused would, uncharacteristically, become heated, commence yelling and then throw up his hands and retire to his shed. It was said that, in the months prior to 12 August 2001, the accused and his wife seemed to be drawing further and further apart and he would spend a great deal of his time in the room near the garage;
(7)In more recent times, he seemed reluctant to drive his car and, for example, would, instead, walk substantial distances to and from the shops, carrying quite heavy bags of purchases on the return journey. His attention to the road seemed to be lacking and he appeared to lose his confidence to drive.
The children also spoke of the somewhat odd demeanour of their father, following his arrest. He would ring them regularly from the Remand Centre, albeit for quite brief times. The conversations were strange, in that the events of 12 August 2001 and the pending court proceedings were never raised. There would be inconsequential unrelated questions raised by the accused. These would focus on aspects such as how building activities next door to his home were progressing. As Rosa said, the atmosphere generated was unusual and as if nothing had happened.
This evidence particularly falls to be considered in light of both the case history obtained by Dr Raeside from the accused and on the doctor's own interview with the children. The significant points noted by him were as follows -
(a)In the period immediately prior to 12 August 2001 there were several incidents in which the accused became disorientated. On one occasion he became lost in the street and felt like he "woke up and didn't know how I got there." Such episodes in fact occurred about weekly, with the accused "waking up" in the street, walking around and not knowing where he was. Sometimes this happened when he was on his way to do shopping;
(b)On one occasion when the accused had been driving his car he found himself near the ABC building on North East Road on his normal route back from the city, but was unsure how he had got there. This worried him and he avoided driving for that reason; and
(c)The accused's children reported that, in the months and years immediately prior to 12 August 2001 they found their father a bit vague at times. In conversation he would start a subject and get lost halfway through the discussion. Statements would, at times, seem out of context. They confirmed that the accused had become lost whilst out driving, or confused as to where he was and in which direction he should go. On one occasion he had been lost whilst walking down the road. These incidents occurred in locations and on routes well known to the accused.
One interesting feature of the evidence of the children was that they were of the impression that the relationship between their parents was, seemingly, a happy one - albeit that the mother was the dominant partner. On the case history given by the accused to Dr Raeside, it became apparent that, over a long period of time, the accused came to harbour a deep resentment at his domination by his wife and what he saw as unfair criticisms which she directed at him. For example, she blamed him for the fact that the eldest daughter had not married, saying that his lack of an active social life had led to that situation, or that it was, somehow, otherwise his fault.
It is important to bear the above aspects in mind, both individually and collectively, as they assume considerable importance in the reasoning of certain of the specialist witnesses.
Relevant statutory provisions
Part 8A of the Act sets out a detailed code as to the manner in which a criminal trial is to be conducted, in circumstances in which it becomes apparent that issues of mental incompetence arise.
Section 269C stipulates that a person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of that 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 section, "mental impairment" includes mental illness, or an intellectual disability, or a disability or impairment of the mind resulting from senility. However, it excludes the effects of intoxication.
There is a presumption of mental competence. An accused bears an onus of establishing any relevant mental incompetence relied upon on the balance of probabilities (R v Leach [2000] SASC 321).
Section 269E specifically enjoins a trial judge, in circumstances in which an accused's mental competence to commit an offence is raised, to separate the issue of such competence from the remainder of the trial. The trial judge has a discretion to direct that either the trial of the so-called "objective elements" of the offence be proceeded with first, or that the trial commence with a consideration of the mental competence of the accused.
As earlier recited, it was common ground that, in this case, the trial commence with a consideration of the objective elements of the offence. I directed accordingly.
In this regard the statute contains two relevant definitions. The phrase "objective element" is defined as meaning an element of an offence that is not a subjective element. The phrase "subjective element" is separately defined as meaning voluntariness, intention, knowledge or some other mental state that is an element of the offence in question.
The objective elements of the offence
In accordance with the requirements of s 269G of the Act I first received oral and documentary evidence relevant to the question of whether or not I should find that the objective elements of the offence charged against the accused had been established beyond reasonable doubt. At the conclusion of that evidence Mr Barrett, of senior counsel for the accused, presented no argument against a finding that such elements had been so established. I so found.
It was, in reality, common ground that, on 12 August 2001, the accused had unlawfully killed his wife by his apparently willed act of manually strangling her. It is also clear that, leaving aside the issue of mental competence, the accused had, according to his own subsequent statements, positively set out to kill his wife.
The subjective elements
The above finding having been made, the trial then proceeded as to the subjective elements of the offence charged. It should be said that certain of the evidence that was tendered in relation to the objective elements of the offence was relevant to, and formed an important basis for consideration of, the later expert evidence bearing on the topic of the competence of the accused at the time at which he killed his wife.
In essence, it was the submission of Mr Barrett QC that, on the whole of the evidence, the defence had demonstrated, on the balance of probabilities, that, at the time at which he killed his wife, he was mentally incompetent to commit an offence. This was because, by reason of mental impairment, he was unable to control the conduct which gave rise to Mrs Berlingo's death. That mental impairment was said to be a form of what is known as fronto-temporal lobe dementia.
Such a diagnosis was espoused by certain of the expert witnesses called to give evidence and denied by others. It is therefore necessary to proceed to an examination of the expert evidence in some detail.
Fronto-temporal dementia
A central factual issue in this case is whether, at the time of the offence alleged against him, the accused was suffering from some form of fronto-temporal dementia. It is therefore desirable that I commence by addressing the evidence touching on the nature and effect of this disease. The topic is conveniently dealt with in an addendum to the second report of Dr Burrow, a witness called by the defence, and there was general acceptance of what was said in it. What follows draws heavily on that source, but also reflects the evidence before me.
There is a variety of forms of dementia falling under the general rubrics of frontal lobe dementia or fronto-temporal dementia and, according to a witness, Professor Burns, there seems to have been a good deal of loose usage of those terms in the medical profession itself. For present purposes we are here concerned with fronto–temporal dementia of the degenerative type, which is said to be insidious in onset and gradual in tempo.
The dominant and initial features are usually character change and disordered social conduct. At least in the early stages, perception, spatial skills and memory remain relatively well preserved.
As the condition develops there is the loss of judgment, with disinhibition, social misconduct or social withdrawal, coupled with a progressive loss of expressive language or comprehension, or both. The loss of judgment seems to strike at the ability to strategically plan and execute. The overt symptoms are by no means standard or predictable, either in nature or degree.
Two broad spectrums of behaviour are usually noted, namely one of slowness, apathy, inertia and a spontaneity, and the other of restlessness, over activity, distractibility and disinhibition.
Poor judgement and socially inappropriate behaviour are among the major clinical manifestations of both presentations. There is usually early loss of insight and social awareness, an appearance of forms of disinhibition and an emergence of stereotyped and preservative behaviours.
The onset of this type of dementia normally commences between 40 and 70 years of age, but is not strictly confined to that age spectrum.
There is a range of possible overt signs, but family members usually report a significant change in personality of the sufferer. There can be a loss of initiative and interest in activities, difficulties with day-to-day memory functioning – but not so much of the amnesic nature as a so-called “strategic [memory] failure”, giving rise to inattention, inability to focus on the task in hand and easy distractibility.
In many instances sufferers can recall details of recent events and conversations, even though they cannot use their memories in socially appropriate or functionally productive ways. The lack of judgment and loss of insight tends to be coupled with, and lead to, the loss of ability to predict the adverse consequences of socially inappropriate behaviour and thus disinhibited behaviour. It also attacks faculties of strategic planning of activities and their execution.
The foregoing is but a brief precis of a complex range of possible features and their effects, but it will serve as a sufficient backdrop against which to discuss the medical evidence.
Radiological evidence
An important commencement point in such an exercise is a consideration of the considerable evidence touching on the physical state of the accused's brain, as revealed by successive MRI scans and a so-called PET scan. Even in this regard there was a significant degree of contention between various specialist radiologists and neurologists as to the true interpretation of the scan pictures.
It is logical, first, to review the evidence given by Dr Avninder Sandhu, the head of the Neuroradiology Department at the Royal Adelaide Hospital. He is a highly experienced and qualified expert in the field of neuroradiology and was, commencing in 1984, actually involved in pioneering work in London related to the development of MRI scanning, particularly in the field of scanning for Neuro radiological purposes. He teaches registrars, who aspire to become specialist Neuro radiologists.
Neuroradiology focuses on investigations of the brain and spinal cord and the disorders associated with those areas. The evidence suggests that Dr Sandhu is possibly the most experienced expert in the State in the reading and interpretation of MRI scans of the brain. I found him to be a most impressive witness, who was both lucid and convincing in his explanations and also objective. He gave his evidence with the aid of relevant scan pictures projected on the court room wall. I was readily able to follow the reasoning expressed by him.
In the course of his evidence he explained the differences between the MRI and PET scan techniques, although he did not profess to particular expertise in the latter technique.
A Neuro radiological MRI scan involves a very intimate analysis of the brain. The brain of the patient is made the focus of an extremely strong magnetic field, which has an effect on the ions in the hydrogen cells in it. The cells containing those ions are then subjected to a radio frequency pulse and the variations in tissue release energy back into a computer which is thereafter able to analyse it and generate an accurate picture of the relevant tissue on a progressive, section by section or "slice" by "slice" basis.
On the other hand, a PET scan output derives from the injection into the patient of a radioactive isotype which is, preferentially, taken up by different parts of the brain and body. That is then imaged on a machine which produces a series of colour pictures of segments of the brain.
In the instant case two successive Neuro radiological MRI scans of the accused's brain were carried out. The first was on 22 April 2002 and the second on 10 December 2002. A PET scan was carried out on 19 September 2002. Copies of the results were tendered in evidence.
Two radiologists junior to Dr Sandhu initially reported on the successive MRI scans. He independently reviewed those scans, at a later time, for the purpose of preparing to give evidence in this case.
The two written reports are somewhat curious as to their content, given that it seems common ground that no significant difference is said to be observed in the overall condition of the brain as at the two successive dates - although it must be said that the pictures of one or two slices of the brain seem clearer in the second scan than the first. At least they illustrate more readily certain features that were adverted to by Dr Sandhu.
In the report on the result of the first MRI scan Doctors Saloniklis and Scroop were of the opinion, inter alia, that -
"The ventricular calibre and subarachnoid spaces are slightly prominent for patient's age. The appearances suggest some generalised cerebral atrophy…."
The primary purpose of the second MRI scan was to determine whether there had been any apparent progressive deterioration in the condition of the brain in the eight month period that had elapsed since the first scan. On this occasion the report expresses the view that the slight prominence of the ventricular calibre and subarachnoid spaces is consistent with age related involutional change, rather than atrophic disease. No progression in condition was noted.
Curiously, no reason was expressed for the change in stance from the first report, given that there was said to have been no perceptible change in that the scan pictures. In any event the weight of specialist evidence is to the effect that, with a condition of fronto-temporal lobe dementia, it is most improbable that one would have been able to detect any significant progression of an atrophic condition over such a short timeframe as eight months. Professor Burns, to whose evidence I will come, accepted that the two reports were plainly inconsistent with one another. He was unable to identify any logical explanation for the change in report.
It is fair to say that Dr Sandhu did not agree with the report on the second MRI scan and was firmly of the view that both scans unequivocally demonstrated the existence of significant fronto-temporal lobe atrophy, beyond the norm associated with the ageing process for a man of the accused's age, together with a specific asymmetry of the Sylvian fissure, indicating a more localised loss of brain cells in one area. He stressed that there is no absolute, quantitative test of what constitutes a norm in dilatation of brain spaces. The assessment made is based on long experience. In his view other potentially causative factors giving rise to the degree of atrophy noted can be excluded.

Whilst it must be conceded that Dr Burrow, to whose evidence I will also come in due course, is not an expert in the field of neuroradiology, nevertheless, his day-to-day work requires him to examine and evaluate MRI scans of the nature of those under consideration in the present case. I consider it important that the conclusions drawn by him from the MRI pictures closely accord with those expressed by Dr Sandhu.
In the course of the trial a statement of Dr Scroop was tendered. In my opinion this does not resolve the question of the reason for the differing first and second reports, beyond making the point that the referring doctors were really asking for two slightly differing types of opinion.
Dr Scroop accepts that -
"… there appeared to be slightly more volume loss in the left and frontal temporal lobes as compared to the right. Secondary to that observation I saw a prominence of the left Silvian [sic] fissure …"
Given that situation she nevertheless adhered to the view expressed in the second scan report, as a subjective view on her part.
Is to be noted that Dr Scroop completed her fellowship in 1999, by way of contrast with Dr Sandhu's very extensive experience over many years.
Having orally discussed the situation with Dr Scroop, Mr Snopek indicated that he did not propose to proffer her as a witness, as he did not consider that her evidence would be helpful. I inferred from what he said that Dr Scroop had now orally expressed views that may not be consistent with certain of the written material previously signed by her. Both counsel conceded that there was little value in calling her and that her evidence would not be of assistance to either side.
Professor Sage, a Professor of Medical Imaging at the Flinders Medical Centre and Head of the Department of Radiology and Imaging, RGH Daw Park was, during the course of the trial, asked to express an opinion as to the MRI scan pictures. He opined that they revealed no abnormality and were consistent with the age of the accused.
It must be accepted that Professor Sage is also a very experienced, recognised expert in the field of neuroradiology. He acknowledged that, in making an assessment, it is important to have a detailed clinical perspective of the specific patient in considering scan images. That view was supported by other expert witnesses. He did not, however, seek to make any clinical examination or assessment of the accused prior to expressing his opinion. His primary evidence was based solely on a consideration of the MRI pictures taken on 10 December 2002, although he did look at the earlier MRI pictures during the course of his evidence and opined that they reinforced certain of his conclusions.
One curious feature of this case was that, despite the fact that both were aware of the inconsistencies between the two "Scroop" reports, neither Professor Sage nor Professor Burns (a neurologist called by the Crown) ever sought to look at the first MRI scan pictures prior to giving evidence. Each gave his primary opinion simply taking what was seen in the second scan pictures as his basis.
It is fair to say that Professor Sage readily accepted that an assessment of scan pictures of the brain as to the presence or absence of atrophy (and, thus, whether they disclose a normal or abnormal degree of shrinkage, beyond a mere age related situation) was highly subjective. I took him to agree that there was certainly room for experts to differ on this topic in an individual case, because of the lack of quantitative criteria and the need to base a judgment on personal experience. He adverted to a major problem of alleged "over diagnosis" that had arisen in another State, because of this difficulty.
Particularly when he contrasted both sets of MRI scan pictures, Professor Sage contended that there was, in fact, little or no asymmetry of the Sylvian fissure, specifically having regard to the fact that, on the occasion of the second scan, it appeared to him that the accused's head was at a slight angle when the pictures were taken. The other segments of the brain, such as the Gyri and Hippocampi, pointed to by him in the scan pictures, indicated that, in his opinion, there was no significant asymmetry and no sign of abnormal atrophy. He agreed that there were some general signs of asymmetry in the overall shape of the brain, but said that this was normal - such situations were commonplace.
It is to be noted that Dr Sandhu did not attach the same significance to the angle of the accused's head when the scan was taken as did Professor Sage. I understood him to say that, at least in relation to the axial slices, "axial scans are axial scans" which go, in the appropriate plane, from the base of the skull up to the top. The pictures should not be affected by any slight variation in the angle of the head when the scan is taken.
Professor Sage testified that there were great difficulties in attempting to relate the degree of shrinkage of the brain (or lack of it) to conditions of dementia. There were natural marked differences between persons of the same age group, particularly in age groups over 45. In some instances, an undoubtedly demented patient may have little or no sign of atrophy apparent on MRI scanning, whilst, in others, patients with an apparent perceptible degree of shrinkage might display no clinical signs of dementia at all.
Although, like others, he attempted to reconcile the differences between the two "Scroop" reports on the successive MRI scans, he was, like Professor Burns, constrained to concede that they were significantly inconsistent - there was an unexplained contradiction between them. He said that Dr Scroop had been a brilliant fellowship candidate, but that he fundamentally disagreed with her initial assessment to the effect that the ventricular calibre and subarachnoid spaces were slightly prominent for the patient's age; and that the appearances suggested some generalised cerebral atrophy.
This witness felt that there was simply nothing in the MRI scan pictures that positively supported diagnosis of either frontal lobe or fronto-temporal lobe dementia. Indeed, he went so far as to assert that the MRI scan pictures could well have been those of someone aged 50. He said that he did not even see any age related atrophy and was surprised that "this patient has cognitive problems". With respect, this seems to me to constitute an extraordinary assessment, as the accused plainly has significant cognitive problems and the weight of the evidence unequivocally indicates the presence of at least age-related, if no other, atrophy. It causes me to have serious reservations about the remainder of his evidence.
In cross-examination he agreed with other witnesses that the correct diagnosing of a patient depended very much on a careful examination and assessment of that patient, the history given by the family and, where relevant, the results of neuropsychological investigations. The imaging results were but one feature to be considered in such a context. Any ultimate, specific diagnosis of dementia was outside his specialty. If the accused did, in fact, have a progressive dementia of the type suggested in this case, Professor Sage would not have expected to see any substantial scan differences over an eight month period.
One interesting feature of his evidence was to the effect that the field of using MRI scans as a diagnostic tool in relation to conditions of fronto-temporal dementia has been a quite recent, developing area, with the result that there is relatively little definitive data and, as he put it, "clinicians are really still fairly subjective in this region as well, particularly in the fronto-temporal region".
He clearly espoused a quite conservative school of thought that lent against what he described as "over diagnosis", because of a concern as to the impact that such a diagnosis was likely to have on individual patients.
It will, at once, be seen that there is an irreconcilable and seemingly remarkable conflict between the honestly held opinions of Dr Sandhu and Professor Sage, each being of impeccable qualifications and experience - there being little, in terms of demonstrated capacity and expertise, to distinguish between them. With all due respect to her, Dr Scroop seems, over time, to have had a foot in both camps.
Neither of these witnesses displayed the "hired gun" syndrome. On the contrary, each presented as a careful and objective witness who, with manifestly honest conviction, expressed opinions genuinely held. The differences between them graphically serve to illustrate the fact that this area of investigation is, indeed, a relatively new field and that there is much scope for differing, individual, subjective assessment.
If it fell to me to make a decision in this case substantially upon the basis of an assessment of the MRI scan pictures taken, more or less, alone, I would be left in a very difficult position. However, it seems to me that which of the two conflicting viewpoints as to be preferred really derives from their consideration in the light of the wider evidence. When that is done, I am compelled to an acceptance of the opinion of Dr Sandhu, for reasons which will rapidly become apparent. In short, I consider that Dr Scroop "got it right" the first time.
The PET scan report appears to have been produced by a registrar supervised by a more senior doctor. So far as relevant it is expressed in these terms -
"Dedicated brain images were obtained, demonstrating a symmetric generalised reduction in perfusion to the cerebral hemisphere[s] and cerebellum. There does appear to be greater reduction in perfusion to the medial and inferior aspects of the temporal lobes bilaterally. There is no focal reduction within the frontal lobes or relative preservation of the motor cortex or basal ganglia to suggest a degenerative aetiology.
Conclusion The scan appearances are consistent with generalised atrophy. No specific features are demonstrated to suggest a frontal lobe dementia."
To some extent, this report is a little difficult to follow. On the one hand it recognises a degree of generalised atrophy and some differential reduction in perfusion in the temporal lobes. On the other, it does not identify any "specific" features that are suggestive of frontal lobe dementia. I took Dr Burrow to be of the opinion that the scan result was not only consistent with, but actually supported, his diagnosis. Professor Burns denied such a proposition.
Neuropsychological evidence
It is convenient to move on from that evidence to the opinions expressed by Mr Bell, a senior clinical psychologist employed by the Forensic Mental Health Services and Dr Michael Wood, a highly experienced Neuro psychologist. Fortunately, there is a significant degree of concurrence in the conclusions to which they independently came.
Dr Wood reviewed the accused in August 2002. He interviewed him and administered a series of tests directed towards ascertaining the levels of his intellectual and executive functioning and verbal learning and memory. This witness concluded that the accused presented as a man of very limited intellectual ability, who was then functioning in the borderline range of intelligence, having an overall IQ score of 74.
He specifically commented in his report that -
"There was evidence of a marked impairment of memory which was greater than would be expected for a person of his age although not significantly lower than his overall level of intellectual functioning. Tests of those processes which are affected by damage to the frontal lobes were administered and in all cases the performance achieved was significantly below average. Because of the very low level of overall intellectual functioning, it is difficult to conclude with confidence that there was a relative deficit specifically related to frontal lobe functioning. However, it is important to note that he was performing at a very low level on these tests and therefore his cognitive processes are very limited."
Dr Wood felt that, due to the fact that the accused's primary language and culture was Italian, it was difficult to assess his premorbid level of intellectual functioning. However, bearing in mind that he had retained regular employment for many years, had participated in raising a family and generally managed to cope, it was reasonable to assume that his premorbid level of functioning had been at least in the borderline to below average range, with an IQ score of about 80. I would merely pause to comment that, on my own assessment of the performance of Mr Berlingo throughout his video record of interview, it may well be that Dr Wood was erring on the side of conservatism in putting possible cultural and language difficulties into the equation.
Objective evidence of generalised brain atrophy, coupled with what he considered was the obvious drop in intellectual functioning, supported Dr Wood’s thesis that the accused was suffering from a form of dementia and had been so suffering for some time.
Dr Wood explained how he had arrived at the premorbid assessment (T 260) and I found his reasoning convincing. As he pointed out, a drop of six points at the relevant level of functioning was quite significant. The accused's memory functioning, in particular, was significantly below average for his age.
The test results obtained by Dr Wood were not inconsistent with those obtained by Mr Bell in December 2002. It is to be noted that the latter independently scored the accused's IQ at 71 and assessed that his premorbid score was probably somewhere in about the low average range, which extends from 80 to 89. Mr Bell is a highly qualified and experienced clinical psychologist, who has had an extensive practice in forensic neuropsychology. He is employed in the Forensic Mental Health Service and saw the accused on three separate occasions. He carried out a range of tests somewhat similar to those administered by Dr Wood, although it is important to note that he did not subject Mr Berlingo to the Brixton test of executive functioning.
As appears from his original written report, Mr Bell indicated that -
"Taking as a benchmark, the estimated premorbid level of functioning as being within the low-average range, these scores indicate the likely presence of a mild deterioration of intellectual and memory functioning, except in the case of his extremely low score on a test of reasoning and judgement.
Mr Berlingo performed a number of tests on which the executive functions of forward planning, strategy generation (problem solving), adherence to task requirements, and spontaneous verbal fluency were seen to have significant impairment in quality. The extent of this impairment of functioning was noted to be severe in absolute terms, indicating the presence of significant impairment in frontal lobe/executive functioning. The brain's frontal lobes are widely regarded as being involved in forward planning, problem solving, initiative generation and the inhibition of inappropriate and antisocial behaviour."
It is also instructive to note Dr Wood's summation in relation to the accused's executive functioning aspect. In his report he made the points -
"A measure of executive functioning (Brixton Test) which requires the individual to discern a pattern and respond appropriately was administered. Mr Berlingo was unable to comprehend the nature of the task and his performance was very significantly below average, falling in the "impaired" range. On further measures of executive functioning his performance was significantly impaired. His verbal fluency was noted to be very significantly below average, but this may result in part to his limited facility in English. Performance on a visual scanning task was below average and he had difficulty with letter sequencing, but not with number sequencing, which may reflect his educational background."
Viewing the outcome of his own psychological tests in the context of Dr Burrow's report of the existence of objective signs of brain deterioration, Mr Bell thought that there was evidence of mental impairment representing the effects of a fronto-temporal dementia.
In a later report, having been confronted by a report of Professor Burns which questioned the objective evidence of abnormal brain atrophy, Mr Bell initially said that, accepting that report, he no longer had confidence in his original assessment of the existence of dementia. This was despite the fact that, in later cross examination, he indicated that he still adhered to the validity of the test results upon which he had based his original opinion.
This witness gave oral evidence at some length. He indicated that, when he gave his revised written report, this, inter alia, reflected the report of the second MRI scan and that he was unaware of any opinion of Dr Sandhu. His evidence before me was given in the context of a then awareness of all relevant material and evidence before me at that stage, including that of Dr Sandhu.
Mr Bell made it clear that, in his opinion, the existence or lack of objective evidence of frontal lobe deterioration was a most significant factor in arriving at any ultimate assessment. His own tests indicated "very poor frontal lobe functioning" which, coupled with any positive evidence of frontal lobe impairment due to physical factors, could properly lead to a diagnosis of dementia. I took him, ultimately, to say that, if the substance of the evidence of doctors Sandhu and Burrow was accepted then he would, with confidence, rest on his initial opinion, rather than his revised position.
In the course of his evidence, Mr Bell described the typical range of clinical behavioural signs in a person suffering from frontal lobe dementia. (See T 135-136). Of particular significance was his comment that research indicates that it is possible that the first real evidence of the existence of a fronto-temporal disorder may well be the commission of a serious criminal act that is entirely out of character.
It seems to me that, in substance, the present evidence of Mr Bell strongly reinforces the views proffered by Dr Wood. He certainly validated the test assessments arrived at by the latter and the conclusions to which he came as to the general level of functioning of the accused, his likely premorbid situation and the deterioration that has obviously occurred.
What I found to be both striking and compelling about the evidence given by Dr Wood was his view that, as I understood him, certain levels of functioning of the accused were so grossly below average and his present learning capacity was so negligible that they are strongly suggestive of the existence of a fronto-temporal dementia. In this regard his conclusion is best illustrated by the following question-and-answer found towards the conclusion of his cross examination -
"Q The overall test results. What I am putting to you is you are not suggesting that only people with dementia would produce the results that we see Mr Berlingo producing; there could be other explanations.
A Yes, there could. These are sorts of results I wouldn't be surprised to find in a person who suffered a severe head injury in a motor vehicle accident, or an industrial accident, or have suffered from a serious mental illness. People with psychosis schizophrenia, which are published in research, will also show similar results of gross impairment in frontal lobe functioning."
He pointed out that, for example, the test results related to executive functioning placed the accused in the “impaired” range. I did not take Mr Bell to dissent from that assessment.
I consider that the response cited above speaks volumes concerning the psychological status of the accused and the existence of a degree of abnormality which necessarily begs questions as to causation. It is flying in the face of the whole thrust of the evidence to suggest that the accused's deficits were little more than a reflection of his normal, generally low, level of intelligence and functioning.

In summary then, I consider that the evidence of both psychologists convincingly supports the thesis that it is more probable than not that, in the period leading up to 12 August 2001, the accused sustained a very substantial diminution of his intellectual capacity which, if taken in the context of an established objective situation of fronto-temporal deterioration, would strongly indicate the onset of a form of fronto-temporal lobe dementia.
In so concluding I am constrained to say that I agree with Mr Barrett's criticism of Mr Bell's change of stance when confronted with the opinion of Professor Burns. With all due respect, that change seems patently illogical. Given the specific test findings and the basis of assessment of premorbid functioning (from which Mr Bell did not resile), it is difficult, if not impossible, to perceive how - as a matter of logic - the Professor’s assessment could have had any bearing on the issue of the likely premorbid status of the accused.
The level of present functioning was not in question and the factors relied on concerning premorbid levels remained as valid as ever they did. I consider that the findings of Mr Bell, as originally expressed, were soundly based - particularly his proposition that the extremely poor executive functioning seen in Mr Berlingo during formal assessment would be likely to compromise his ability to exercise control of his conduct. His evidence strongly supported that of Mr Wood. As will be seen, independent tests conducted by Dr Burrow produced a similar result.
A conflict of neurological opinions
A major issue arises in this case as to which of the conflicting opinions expressed by Dr Burrow and Professor Burns ought to prevail. I will first deal with the evidence of the former.
Is important to note that Dr Burrow not only reviewed the relevant MRI and PET scans, but he also made a detailed clinical examination and assessment of the accused, personally interviewed the children of the accused and had careful regard to the neuropsycholological reports. Professor Burns based his opinion solely on a consideration of the relevant scan reports, and a viewing of the second MRI scan pictures, the video record of interview of the accused and certain documentary material supplied to him. He did not view the PET scan pictures.
It should also be said that Dr Burrow's evidence falls to be viewed in the context that he ultimately had the opportunity of considering all of the evidence which had been given at trial up to the point when he testified. This particularly included the evidence of Dr Sandhu and the information provided by the children of the accused. He had earlier viewed the videotape of the record of interview with the accused. The Professor was not acquainted with the detailed evidence given by Dr Sandhu, nor that given by Dr Wood.
Dr Burrow is a highly experienced specialist clinical neurologist. He commenced his neurologist training in Adelaide and completed it in North Carolina and at the Mayo Clinic. He received his fellowship in 1973 and has practised continuously as a neurologist in South Australia since 1979. He is currently the senior visiting neurologist at the Royal Adelaide Hospital and is a member of a significant private neurology practice.
It is obvious from his detailed reports that Dr Burrow conducted a very careful and detailed clinical examination of the accused, including the administering of a number of tests designed to complement and confirm the assessment already made by Dr Wood, the details of which were already known to him. In essence, the results of those tests pointed to conclusions identical to those arrived at by Dr Wood. He also agreed with the general assessment of Dr Wood as to the likely premorbid level of functioning of the accused. On the occasion of his initial assessment Dr Burrow arrived at the view that the accused had a brain condition that had changed his behaviour and ability to adapt. This was a type of dementia which, typically, in its earlier stages of onset, is characterised predominantly by changes in behaviour rather than cognition.
He said that many of Mr Berlingo's responses to him missed the point completely; and that an inability to carry out simple tasks suggested that he had a difficulty in comprehension, beyond any problem simply related to language or culture. He felt that the accused exhibited a receptive dysphasia (that is, he could not comprehend what he was being asked to do) or a motor apraxia (that is, he could comprehend it, but could not execute the task).
In the course of his evidence Dr Burrow indicated an important area of concurrence between his findings on examination and those of both Dr Wood and Mr Bell.
He made the point that the accused had quite a significant language disturbance, which led to a situation of considerable difficulty in getting him to undertake even quite simple motor tasks. I took him to arrive at that assessment even after having in mind any limitations applicable to the accused by reason of the fact that English was not his primary language. Dr Wood and Mr Bell both independently arrived at somewhat similar findings.
Dr Burrow considered that there was an involvement of the left hemisphere of the brain, which was producing a fluent dysphasic quality and that this was a reflection of extension into other regions of the temporal lobe. He argued that the asymmetry of the Sylvian fissures was not a typical asymmetry.
Dr Burrow had recommended that both the initial MRI scan and the PET scan be carried out with a view to ascertaining whether there was any physical evidence of disease of the brain that could either reinforce his clinical assessment or at least exclude other possibilities.
At the time of his first report he had received the first MRI scan report and pictures. He accepted that they were indicative of some degree of cerebral atrophy. In a supplementary report he reflected upon the outcome of a series of other specific investigations, including the PET scan. He was of the opinion that there was a significant measure of concordance between the clinical and the separate investigation results.
In the course of his oral evidence Dr Burrow amplified various aspects of his reasoning and spoke to his reports. It is not practical, in the course of what are already lengthy reasons, to recite this material in extenso.
Suffice to say that I found him to be a very impressive witness who was utterly objective, able to articulate his basis of reasoning in simple terms and generally compelling in what he had to say. This is the more so when it is borne in mind that he confessed that he had originally come to the situation with a slightly sceptical viewpoint, but had ultimately concluded that the statements and conduct of the accused had been completely consistent at all times.
These strongly pointed to a situation in which, although the cognitive function in some areas was reasonably preserved, the presentation of the accused was significantly abnormal in certain respects, in a manner which, when coupled with objective test results, drove Dr Burrow to the conclusion that the only logical explanation was that the accused was, in fact, suffering from a fronto-temporal dementia.
This witness was unequivocally satisfied that the MRI scan pictures did in fact indicate an atrophy of the brain. I took him to be in general accord with the evidence given by Dr Sandhu. As to this he commented -
"(T167) I would have to say that when I saw the scan I felt unequivocally the brain was atrophied, and it’s mild to moderate in severity, and it is rather non specific in its distributions except that it is asymmetrical - it is more marked on the left side - and that has very clear clinical correlations here and it actually supports the view that he had one of the primary dementias …."
He accepted the proposition that asymmetry in the brain does not necessarily indicate disease or organic damage, but he pointed out that the asymmetry of the Sylvian fissures is of a pattern that is very suggestive of atrophy in that region; and that what is now seen is not a typical asymmetry. It is, he said, specifically suggestive of an atrophic process that involves the cortex in the left temporal and frontal regions - a quite unexpected feature. He indicated that he had consulted with several experienced radiologists, who concurred in his view of the scan pictures.
In relation to the report on the PET scan which referred to a greater reduction in perfusion in the medial and inferior aspects of the temporal lobes bilaterally, Dr Burrow said that his researches indicated that, in some of the cases of fronto-temporal dementia a specific reduction in circulation of temporal lobes may in fact be much greater than that of the frontal lobes. The report therefore indicated a finding which amounted to a separate objective indication that there was a genuine organic process accounting for Mr Berlingo's difficulties.
To that extent he disagreed with the comment in the PET scan report which suggested that there were no features demonstrated to suggest a frontal lobe dementia. He accepted that experience indicated that the PET scan process had, in practice, proved to be of limited utility in relation to problems of this type and one should not seek to read too much from it.
Dr Burrow was of the view that the evidence of the children as to their father's conduct prior to 12 August 2001 and the sudden emergence of violent conduct on the part of a man who had been married for many years in a non violent and apparently stable family environment was entirely consistent with, and supported, his diagnosis.
It was pointed out to Dr Burrow that Professor Burns had indicated, in one of his reports, that he was influenced by the absence of any clear history by the accused's family of mental impairment or change. The former made the point that it is quite consistent with this type of dementia that certain cognitive functions of the person concerned are, at least initially, not greatly impaired, as is indicated by the relevant test results.
In any event he felt that the evidence emanating from the members of the family, as now before the court, does in fact indicate, without any equivocation, that there were significant changes in relation to the accused prior to the incident of 12 August 2001. That evidence was, he said, of surprisingly good quality in its detail.
He also made the point that, in his experience, it was almost always the case, with a fronto-temporal dementia, that the existence of it came to attention because of some initial quite bizarre feature. He gave a quite striking illustration of such a situation, in which a demented Italian father, who worked in partnership with his son as a tile layer and wanted to retire, threw bricks at his feet and smashed the bones in them so as to disable himself from continuing work. He did so because of an inability to find some other, reasonable manner of intimating to his son that he wished to retire (T 176). Dr Raeside also referred to this type of phenomenon in the course of his evidence.
Dr Burrow joined issue with the significance that Professor Burns seems to have attached to the fact that there was no significant change between what appeared on the first MRI scan, as contrasted with the second some eight months later. He agreed that there was no relevant change and said that, with the type of dementia in issue (by way of contrast with what is typically seen, for example, in relation to Alzheimer's disease), the onset is often profoundly slow and that, in the period in question, one would not normally anticipate any perceptible change.
In cross examination Dr Burrow made the point that, in the course of the last 10 years, the term fronto-temporal disturbance has largely replaced that of frontal lobe disturbance. This is because of a realisation that the frontal lobes and anterior temporal lobes are, in large measure, a single, integrated functional unit; and that it is unhelpful to attempt to isolate the one from the other, at least for present purposes. It seems to me that his explanation as to why the two areas are inseparable was compelling.
In the course of a searching cross examination by the Crown Prosecutor, Mr Snopek, Dr Burrow acknowledged the fact that, after the killing of his wife, the accused readily gave answers which both demonstrated a comprehension of what he had done and also constituted ready admissions that he had killed his wife, as well as statements that indicated his desire to be perfectly frank with those in authority as to what had transpired. The doctor did not see anything in such a situation which was inconsistent with his diagnosis.
On the contrary, he considered that the accused had been somewhat naive in his approach and that total openness, in a situation in which another person might well have declined to speak or may have proffered some explanation to exculpate themself, was entirely consistent with the type of dementia which he espoused. There was, he felt, a complete lack of strategy on the part of the accused, as revealed by his conduct and statements and a demonstrable compulsion to indicate what he had done.
The witness was impressed by what appeared to be a restlessness and a compulsion to tell all, in a manner that struck him as being abnormal. At times the accused became impatient with the police for, seemingly, not accepting what he was saying at face value. Dr Burrow felt that, in repeating his story from time to time, despite the fact that the police were interposing questions, amounted to a degree of perseveration and that it was actually that sort of driven, or compulsive, quality of returning to that which was on the accused's mind, and not being able to switch to a new subject, that was quite characteristic of fronto-temporal dementia.
Dr Burrow expressed the view that, when one analyses the record of interview, the responses given by the accused and his general conduct, it must be described as a very peculiar interview. Having viewed the video myself, I agree with that summation and I also accept that what is seen is, in its entirety, consistent with the broad thesis advanced by Dr Burrow as to the accused's level of functioning.
It is, I think, important to bear firmly in mind that this witness did not ever suggest that, at the time of the killing of his wife, the accused did not know the nature and quality of his conduct or that it was wrong. Rather, it was his opinion that, at the time in question, the accused had been unable to control his conduct by reason of a mental impairment of the nature of a fronto-temporal dementia. Such a situation is not, he said, inconsistent with the retention of a fair level of cognitive integrity. As to this he testified -
"(T209) But the nature of the fronto temporal dementia is, in fact … the cognitive memory functions are very much better preserved than the ability to undertake a sequence of executive thoughts, which in fact … allow a person to plan, to formulate an action. In the context of its social circumstances it causes major social and behavioural changes, in the absence of very much cognitive dysfunction … there is in fact actually some cognitive decline … but it's not upon that that the diagnosis primarily rests, it rests upon, mainly on the behavioural changes."
As to his view that the impairment suffered by the accused was such that he was unable to control his relevant conduct, Dr Burrow opined that the inability to control the conduct is in fact actually related to an inability to form a strategy for any other alternate choice. It is the lack of choice, or the ultimate choice, and the ultimate capacities that is the relevant consideration. He went on to say that the primary disturbance of fronto-temporal dementia is said to be a disorder of character and of social conduct. It is a disturbance which relates to the ability to make a response that is reasonable. In other words, it gives rise to an inability to react reflectively and find an acceptable approach to the situation with which a person is confronted. There is a loss of reflective capacity; a loss of ability to find some other alternative strategy or way of executing what the person is trying to achieve; and a lack of sensitivity to another person's position. It is to be seen that all of these indicia are classic features associated with fronto-temporal dementia.
I now turn to the evidence of Professor Burns. As already emerges, this witness did not have the benefit of a clinical examination and assessment of the accused nor, in my opinion, did he have the benefit of a full appreciation of the conduct of the accused prior to 12 August 2001. His views were based upon a consideration of the various scan results, the reports of certain of the other medical specialists, and a review of the transcript of some evidence given in this case. He did not have the benefit of a study of the detailed evidence given by Dr Sandhu.
Distilled to the essence, his view was that any changes seen in the MRI scan pictures were age related and do not represent an atrophic process. He therefore rejected the thesis advanced by Dr Burrow, as well as the views expressed by Dr Sandhu. In short he said that he saw no basis for concluding that there was evidence of fronto-temporal lobe dementia.
Professor Burns accepted the point made by Dr Burrow to the effect that there is no quantitative or empirical means of determining whether there is abnormal atrophy and/or frontal lobe dementia. What is necessarily involved is an exercise in professional judgment based upon experience. He agreed that, in such an exercise, an adequate clinical examination of the patient was important.
At the time of writing his initial report on 5 November 2002 Professor Burns had this to say -
"Atrophic changes occur in the brains of all of us who age. This can vary considerably, it tends to become more prevalent with age but there is not a good correlation between the degree of so-called atrophy and performance. Persons can be performing normally and have quite marked atrophic changes and persons can be demented and have no or minimal change on the scan. Hence the role of the MRI scan is to exclude other disorders and to give some overall marker of atrophy and sometimes to enable one to measure progression of atrophy when there is doubt. In this case, there was no atrophy confined to the frontal lobes. I acknowledge that this does not exclude the diagnosis of frontal lobe dementia but it doesn't give any specific support for that diagnosis. Likewise, the PET scan is a non-specific tool and has shown non-specific findings without selective hypoperfusion or hypometabolism of the frontal lobes. Both Dr Wood and Dr Burrow have used the word "mild" suggesting to me that this is not a florid or obvious case but perhaps an early case, if at all."
Professor Burns went on to report that the critical factor is the history given by the family and that, on the material then before him, he did not read any convincing description that indicated that they had felt that the accused had undergone any significant personality change. In particular, he was unable to discern in the history given by the children any reference to inappropriate or antisocial behaviour.
Having reviewed the second MRI scan Professor Burns was firm in his view that any changes seen were in fact age related and did not represent an atrophic process. He noted the report that there had been no progression since the previous scan some eight months previously. Moreover he considered that there did not appear to be any selective atrophic process involving the frontal lobes.
The Professor said that, whilst he could not categorically exclude a diagnosis of fronto-temporal dementia, he believed that the diagnosis remained unproven and was unsupported by the history given by the family and the Neuro imaging findings.

In so concluding he acknowledged the views expressed by Mr Bell and the fact that he had not actually seen the accused. However, he expressed himself as being very much influenced by the absence of any clear history given by the family of relevant mental impairment or change. There was, in his view, simply no concrete evidence of the existence of a progressive neurological disorder.
Professor Burns also gave oral evidence at some length.
He adhered to a stance which was diametrically opposed to that of both Dr Burrow and Dr Sandhu.
There can be no doubt that, like Dr Burrow, Professor Burns is a highly qualified and obviously well regarded neurologist, with a great deal of relevant experience. The evidence in that regard is set out at length at pp 371 - 376 of the transcript and there is no need to rehearse it in these reasons.
He reiterated what he had said in his report to the effect that, whilst he could not, categorically, exclude a diagnosis of frontal lobe dementia, he saw no persuasive evidence in the instant case to support such a diagnosis; and was fundamentally at odds with Dr Burrow in that regard.
It is a not undue simplification of his attitude that an MRI scan is not a reliable determinant of the existence of significant atrophic disease of the type here in question, in a situation where there is nearly always some degree of age related dilatation. It is essential to look for other independent clinical and external indicia of dementia.
Whilst the MRI scan can be a reliable positive tool in either excluding the existence of various types of disease, or positively demonstrating specific types of situations such as the presence of tumours or highly localised conditions, it is not, taken alone, a good diagnostic tool as to more generalised types of atrophic disease. I took him to indicate that, in any event, it was possible, in some cases, for a patient to have established fronto-temporal dementia, at least of mild to moderate severity, and that there might not be much atrophy apparent in MRI scan pictures of the brain that person.
He said that he saw nothing in the scan results to suggest abnormality and that it was not uncommon to see some degree of asymmetry of the brain. He volunteered that he would be strongly influenced if the children had expressed concern about relevant changing behaviour patterns in the year or two prior to the killing of Mrs Berlingo, but he did not think that the statements that he had read went that far. Behaviour was, he testified, the most important single point in the diagnosis of a fronto-temporal dementia.
He accepted that it was a disadvantage not to clinically examine the accused, but he felt that what he had read and what he had seen in the video record of interview did not reveal any significant signs. The medical history of hypertension and atrial fibrillation could raise the possibility of cerebrovascular disease, but there was no indication of such a situation in the scan pictures.
Professor Burns rejected any notion that the evidence of the inappropriate, delayed "joining in" conversations by the accused was significant for present purposes, although he did not descend to any reasons why that was so. He thought that the fact that the accused had still maintained his garden contra-indicated a frontal lobe dementia, because persons with such a condition often became apathetic and lost interest in things. He considered that the incidents of loss of geographic orientation were irrelevant, because these were more related to the function of the right parietal lobe.
I took this witness to accept that the killing incident itself seems markedly out of character, but he felt that, given the progressive nature of a frontal lobe dementia, the absence of other antisocial events greatly lessened its significance.
He was of the view that the degree of loss of brain volume at the accused's age was not abnormal and was, in any event, a very non-specific finding. No proper diagnosis could be made, based on MRI scan pictures alone. Whilst conceding the asymmetry in the Sylvian fissure area, he argued that, not only is such a situation not uncommon, but also that, if it was evidence of undue atrophy in that area, one would have expected evidence of some adverse effect on the accused's speech.
He went on to say that whether or not specific abnormal signs would show up on an MRI scan with a person clearly exhibiting fronto-temporal dementia could depend on how florid the overt signs of dementia were. In florid presentations it is to be expected that clear signs of discrete unusual atrophy would be observable. No signs were apparent and there was no evidence of any progressive atrophy over time.
Professor Burns did not disagree with Dr Burrow's point that many areas of brain function are integrated and that to say that the temporal lobes play no part in behaviour would be incorrect. However, it was his point that the MRI and PET scan results were non-specific and non definitive and one had to focus on evidence of actual behaviour itself. Little assistance could, for example, be derived from the general PET scan indications in this case.
It seems to me that, at the risk of some oversimplification, Professor Burns' evidence in chief can best be epitomised by citing the following extract of his evidence at p 408 of the transcript -
"Well, I believe the MRI scan is normal for his age. I acknowledge that there is an asymmetry of the Sylvian fissure. I don't believe there is any significant cortical atrophy associated with that. Even if there were……, that abnormality is not consistent with the clinical hypothesis here that he has got a frontal lobe dementia. So if it is a pathological finding it is an incidental one."
I consider that, with all due respect to him, certain of the responses which Professor Burns was constrained to give in the course of his cross-examination necessarily undermined the force and logic of his reasoning as above summarised. At least to some extent, these displayed a degree of lack of comprehension on his part of the full detailed facts. It seems to me that he may well have fallen into the trap of dismissing a number of relatively modest factual indications on an individual basis as not, in themselves, being of great significance, without having due regard to the cumulative impact of the totality of them.
Without descending to undue detail, it appears to me that these aspects of his cross examination are revealing –
(1)He agreed that, in descending order, the following four matters were of importance in considering a potential diagnosis of dementia in this case:
·    the history of the accused’s pre-incident behaviour, particularly as related by close members of his family;
·    a clinical examination and assessment of the accused;
·    the results of neuropsychological examination and testing; and
·    the Neuro radiological investigations of the accused.
(2)He further agreed that this type of dementia is usually of slow progression and manifestation of florid symptoms can be long after actual onset.
(3)He had no relevant experience with persons committing significant criminal acts as a result of this type of dementia and was quite surprised by other evidence to the effect that, not infrequently, a criminal act has been the first florid manifestation of a condition of dementia. Professor Burns’ personal experience had been related to situations in which a family had reported unusual behaviour in the domestic setting.
(4)He accepted that certain aspects of the accused’s behaviour during his video record of interview were at least unusual. Points discussed with him were-
·    he agreed that, at the beginning of the interview, when introductions were being made, the accused’s behaviour was quite odd and his laughter inappropriate.
·    he accepted that the accused frequently fiddled with his spectacles in a repetitive fashion, although he did not feel that he did so in stereotypical fashion. (It was put to him that there was stereotypical conduct associated with this and I think that there is some force in that assertion).
·    equally he accepted that, during the record of interview, the accused did, several times, express impatience, continually asserting that he had killed his wife. However, the Professor felt that, in so doing, his behaviour was not preservative.
(5)Whilst he agreed that certain of the discussion had by the accused with Dr Burrow was capable of being regarded as an inability to be able to plan or look strategically at a problem, it could also well merely evidence a realistic understanding of a situation and that others could not help him. Professor Burns simply took one of two views seen by him as reasonably available and, on that score, happened to disagree with Dr Burrow.
(6)Although he had originally expressed the view that the described episodes of the accused’s disorientation whilst driving and walking were probably manifestations of a loss of memory, more related to the function of the parietal lobe, he did accept that they could, equally, evidence an inability to strategically plan a trip – especially if he was on a familiar route on the way home, as was the case.
(7)He seems to have accepted that the results of some of the tests to which the accused was subjected by Dr Burrow were susceptible of more than one interpretation, one of which was consistent with the effects of fronto-temporal dementia.
(8)He accepted that the evidence of the odd conversations had by the children with the accused by telephone post 12 August 2001 and the nature of them could be consistent with fronto-temporal dementia. The same could be said of the evidence of the children related to the increasing withdrawal of the accused to his shed, prior to that date; his delayed reaction phenomena in relation to family discussions; and his increasing vagueness.
I took him to make the same concession concerning the evidence that, in more recent times prior to the killing of his wife, the accused would become involved in arguments, throw up his hands and walk away to his shed. He accepted that there was positive evidence that all children had noticed specific relevant changes in the behaviour of their father, albeit that no one of them had been of a particularly florid nature. On the other hand, he did not feel that the overall picture was one of radical change.
(9)He agreed that the final acts which led to the killing of Mrs Berlingo were very florid manifestations of violence by a man with a long history of non violence and avoiding confrontation. Nevertheless, he felt that, because it was an apparent “one-off” incident, it may not necessarily evidence the product of dementia. This witness would have expected some prior history of lead up incidents of increasing antisocial behaviour and he saw none. (It was in this connection that, when his attention was drawn to the evidence of Drs Raeside and Burrow as earlier recited, he said that he had had no relevant experience of criminal conduct of that type.)
(10)When Dr Wood’s detailed evidence concerning the deterioration in the accused’s premorbid intellectual functioning was put to him, he conceded that he was not in a position to challenge that assessment, agreed to, as it was by Mr Bell and Dr Burrow. He accepted that this situation was consistent with the existence of fronto-temporal dementia.
A significant portion of the cross examination focused on Professor Burns’ view of the MRI scan pictures. Suffice to say that he conceded that the interpretation of them was necessarily subjective, but adhered to his original opinion that they disclosed no abnormality. I see no point in elaborating on what I have earlier said in that regard.
How, then, is this extraordinary conflict of opinion between two eminent, highly qualified and experienced witnesses (both of whom assert that they have consulted elsewhere with experienced radiologists and whose conflict is mirrored by the differences in diagnosis of Dr Sandhu and Professor Sage) to be resolved?
Each presented as a credible and impressive witness and each had persuasive points to advance.
At the end of the day there are a number of pointers that I consider to be of importance. Not necessarily in any specific order of significance these are -
(1)I consider that Dr Burrow's evidence was based on a far more extensive and in-depth investigation than that of Professor Burns. Not only did he conduct a very detailed clinical examination of the accused, which included his own independent verification of certain of the tests carried out by Dr Wood and Mr Bell, but he also personally interviewed Mr Berlingo's children. In my opinion, he had a substantially sounder and wider base on which to formulate an overall opinion reflecting all relevant factors, than was the situation with Professor Burns.
In this regard I make the point that I do not consider that the written declarations of the children - considered alone - adequately convey a truly definitive picture of the past conduct of the accused. This only emerges on a composite study of those declarations, the oral material and the most helpful case history documented by Dr Raeside.
(2)It is my impression that Professor Burns was inclined, too lightly, to discount the curious and out of character nature of the killing itself. This was a sudden, unprovoked and most violent and protracted act of aggression, the like of which had never before been demonstrated by the accused over some 39 years of marriage. He had always previously presented as a quiet, patient man, not given to serious contention.
The events of 12 August 2001 constituted a truly bizarre scenario that, of its very nature, begged obvious questions. Such a situation fell well within the scope of the evidence of Drs Raeside and Burrow and Mr Bell that, in some cases, the first overt behavioural evidence of a fronto-temporal dementia can be an inexplicable, serious criminal or other bizarre act.
(3)As appears from my earlier recitation of the accused's unusual pre 12 August 2001 behaviour, there were obvious and significant signs of a form of progressive deterioration, that tend to support the thesis that the degree of dilatation shown in the MRI pictures may well not be purely age related. I by no means ignore Professor Burns' point as to the functional significance (in terms of area of the brain) of some of the signs referred to, but this must be viewed in the context of the admittedly integrated nature of brain functions, in the lead up pattern of behaviour to the florid event of 12 August 2001.
With respect, it appeared to me that the Professor was prepared, too lightly, to jettison those signs (the full extent of some of which he did not seem to have appreciated or been aware), as irrelevant. He now accepts that many of them may have been susceptible of more than one interpretation. It is the cumulative effect of the totality of these features that is all important.
(4)It seems to me that a fundamental flaw in the reasoning of Professor Burns is that he seems to have accorded little or no significance or weight to the important neuropsychological evidence. A striking feature of that evidence is that, when tested post 12 August 2001, the accused performed at a level described by Dr Wood as being akin to those associated with persons who have suffered a severe head injury in a motor vehicle accident, or industrial accident, or have suffered from a serious mental illness.
The accuracy of that assessment was never successfully impeached and seems to accord with results obtained by Mr Bell. It was, separately, confirmed by the tests administered by Dr Burrow.
Given what I have already said on the topic of the likely premorbid level of functioning, the quite dramatically low level of functioning stood as a very important matter for consideration - yet due weight seems not to have been given to it.
(5)Professor Burns conceded that, in reviewing the second MRI scan pictures, he was unaware that other professionals had noted any significant speech defect in the accused - although he claimed that he knew of the existence of what he described as "some subtle speech defect". What he meant by that expression is by no means clear, as he did not elaborate on it.
In cross examination, he agreed that, in framing speech, the temporal lobes govern the concept of expression, whilst the motor function of actually uttering words is governed by the frontal lobes. There is, thus, a necessarily integrated function involved (see his description at T 511-512). Aphasia due to atrophy can, accordingly, manifest itself in various forms. There can be a problem of conceptualising, a problem in the motor function of expression, or both.
Where this witness parted company with Mr Barrett QC was that he saw nothing in the MRI scan pictures to suggest a cause for the substantial speech related defect noted by Drs Burrow and Wood and Mr Bell, because he declined to categorise any asymmetry or shrinkage seen as being abnormal.
He agreed that asking a person to undertake motor tasks was one acceptable method of testing language, but, in the case of the accused, the cause of his deficit was not explicable by anything to be discerned in the MRI pictures. He did not quarrel with Dr Burrow's point that, if a fluent dysphasic quality had been detected, then it was, necessarily, a reflection of extension into other regions of the temporal lobe.
I must confess that I had some difficulty with certain evidence given by Professor Burns in re-examination, during which he argued that the finding by Dr Burrow of the existence of fluent dysphasia did not support a diagnosis of fronto-temporal dementia, because fluent dysphasia implied pathology in the posterior temporal region. That reasoning would seem to me, necessarily, to ignore his earlier concurrence in the proposition that there is a necessary integration of function of the relevant areas of the brain.
(6)I have no difficulty with the evidence of Professor Burns that a degree of dilatation with ageing and the presence of asymmetry are not, of themselves, indicative of abnormality. However, the fact of the existence of a degree of atrophy, coupled with the behaviour to which I have adverted and also the compelling psychological evidence of a marked degree of diminution of intellectual functioning from the premorbid condition, combine to found a substantial basis for concluding the existence of abnormality.
I found it particularly significant that Professor Burns seems to have dismissed the psychological conclusions from his reasoning. At least he made no relevant reference to it. Logically, it is a factor touching on function and behaviour and bearing on the development of progressive abnormality in a most important fashion - as Dr Burrow obviously appreciated.
With all due respect I consider that Professor Burns seems largely to have ignored the importance and significance of the substantial deterioration of the accused’s premorbid intellectual functioning - to the point that his learning capacity had become negligible and his executive functioning seriously impaired. Such a scenario casts a very important light on other evidence and which of several possible interpretations of it is likely to be the more accurate.
At the end of the day I must remind myself that it is common ground that no quantitative measure is available and a conclusion is necessarily a subjective assessment by the medical experts, based on their experience and a proper appreciation of all relevant factors. In reviewing this contentious evidence I must bear firmly in mind that I am not to make relevant findings on the basis of proof beyond reasonable doubt, but on the balance of probabilities.
In so doing I further remind myself of the vital need to give due weight to each of the four areas of consideration earlier referred to, having regard to the relative importance of them. It seemed to me that, as the trial proceeded, there was a serious danger of this fundamental approach being lost. As the great debate concerning the proper interpretation of the MRI scan pictures developed, that topic had a tendency to become all consuming. The intense focus on it eventually threatened to overshadow and subsume all else. It is important to remember that, in the context of the present case, it was probably the least important basis for arriving at a proper assessment of the accused. It was never disputed that, in descending order of importance, the scan results came last.

After anxious consideration, I am compelled to the conclusion that, on the balance of probabilities and particularly having regard to the matters to which I have just referred, the conclusions of Dr Burrow must be preferred to those of Professor Burns. I accordingly accept them, supported as they are by Dr Sandhu, Dr Wood and, in large measure, Mr Bell. As I will shortly demonstrate, they also derive considerable support from the opinions expressed by Dr Raeside. In coming to that conclusion I note that, in re examination, Professor Burns said that the various matters put to him in cross examination had certainly given him food for thought, but that they had not changed his opinion about the situation. Bearing in mind the manner in which he had, at the outset, unequivocally nailed his colours to the mast, albeit with a less than full appreciation of all relevant evidentiary factors, that attitude is, perhaps, unsurprising.
The psychiatric evidence
Two highly experienced forensic psychiatrists, namely Doctors Ken O'Brien and Craig Raeside, gave oral evidence at trial. Each of them had a wealth of documentary material in the form of other medical reports, the results of the various scans, opportunities of reviewing the video record of interview of the accused and conducting group interviews of the accused's children and of examining the accused himself.
It must be said that Dr Raeside conducted the more extensive interviews of the accused and had the signal advantage of being able to converse with the accused in his native Italian language. This is very apparent from the doctor's recorded case history and his recitation of the personal background of the accused in his initial report, which is far more definitive in that regard than almost any other material before me. My earlier recitation under the title "The presentation of the accused pre 12 August 2001", inter alia, reflects much of the result of his factual investigations and his understanding of the history of the accused prior to the events of that date. There is therefore no need to reiterate it at this point.
It should be said at the outset that both of these witnesses were careful to make it clear that, to some extent, they had to accept the material generated by, and evidence of, other medical specialists at face value and were, quite properly, not prepared to move outside the boundaries of their own specialty.
It is convenient, first, to turn attention to the evidence of Dr Raeside. He was a most impressive witness who had obviously gone to great pains to obtain a comprehensive picture of the history of the accused and to clinically examine him at length on a number of occasions over a period of time. He had seen the accused on some 15 separate occasions (albeit not all being for lengthy consultations) and was actually the first of the experts to have examined the accused, having initially seen him on 31 October 2001. I found his reasoning to be both objective and convincing.
Dr Raeside was of the opinion that, when he first examined the accused on 31 October 2001, the latter was clearly suffering an adjustment disorder with depressed mood, consequent on the killing of his wife and his subsequent incarceration. However, at that point, the doctor did not have any of the scans (which were carried out a later date) nor, of course, the opinions of Dr Burrow or Dr Wood available to him. In the absence of that material Dr Raeside was then unable to conclude that there was sufficient indication that the accused was suffering a mental impairment at the time at which he killed his wife.
Dr Raeside reviewed the situation in September 2002, having been supplied with the reports prepared by Dr Burrow and Dr Wood, as well as the MRI head scan report produced in April 2002. It is fair to say that Dr Raeside was heavily influenced by the conclusions expressed by Dr Burrow and felt that this added a significant contribution to the understanding of the accused's behaviour in killing his wife. He felt that it would be important to obtain further information from family members as to the behaviour of the accused prior to 12 August 2001, to enable a proper judgment to be made as to whether, given a diagnosis of objective signs of a dementia stemming from organic causes, it could be said, on the balance of probabilities, that the accused had been unable to control his conduct.
Dr Raeside subsequently interviewed the three children of the accused. As I have indicated, his resume of the outcome of that interview is substantially in accordance with the summary earlier attempted by me in these reasons. Having done so, this witness was prepared to support the thesis that, at the time when the accused killed his wife, he was, on the balance of probabilities, suffering from a mental impairment whereby he was unable to control his conduct. He considered that, although anger seemed to have been a motive in her killing, this appeared to have been based on faulty reasoning due to confusion arising out of the accused's underlying mental disorder. He considered that there was no other reasonable explanation as to why the accused would have killed his wife on the occasion in question.
This witness adhered to that conclusion in giving oral evidence at trial. He indicated that he did so, having considered the further opinions expressed by Dr Sandhu and Professor Burns and noted the divergence of opinion as to the neurological evidence. As I understood the bottom line of his evidence it was to the effect that he has substantially accepted the opinions of Drs Burrow and Sandhu for the purposes of his assessment. He accepts that if those opinions were not to prevail then the probability of a mental impairment leading to an inability to control conduct would necessarily reduce to about 40%.
In the course of his evidence Dr Raeside said that he had considerable experience with patients who had frontal lobe disorders of various types. I took him to indicate that such experience was useful in considering conduct said to stem from a fronto-temporal disorder (T 312-313). He made it clear that he fully appreciated that it was always necessary to take a step by step approach in a situation such as that now under consideration. The first was to determine whether there was, in fact, any degree of mental impairment. The second was to then ascertain whether there was evidence that such impairment had, in the particular circumstances, led to an inability to control conduct.
On the basis earlier recited, he was satisfied that, on the balance of probabilities, there was not only an established mental impairment, but also that it had led to an inability to control conduct at the time of the killing.
As I understood him, he saw no inconsistency in arriving at that diagnosis in absence of any clear history of prior aggressive behaviour of a serious nature, inter alia, because it was one of the characteristics of dementia that a person could act impulsively and spontaneously. Such a view is, of course, consistent with the other evidence indicating that it is quite possible that the first overt evidence of the existence of a fronto-temporal disorder may well be the commission of a florid, serious criminal act, entirely out of character.
He further agreed, in cross examination, that there was substantial evidence to indicate that certain of the cognitive functions of the accused had not been impaired at the time of the killing. Like other witnesses, he made the point that such a situation is by no means inconsistent with either the existence or the impact of a condition of fronto-temporal dementia and an inability to control conduct as a consequence of it. In that regard he was in accord with what had been said by Dr Burrow. (T 310-311)
Pages 314-315 of the transcript contain a convenient summation of the successive processes of reasoning which were adopted by Dr Raeside and, in my view, they reflect a sound basis of approach for present purposes.
Dr O'Brien initially examined the accused on 8 November 2002. He recommended that a second neurological opinion be sought from Professor Burns and that additional neuropsychological testing be carried out. This was done by Mr Bell. He then again interviewed the accused on 18 February 2003, after viewing the video record of interview of the accused. He also had available to him the other reports and scans that had been considered by Dr Raeside.
It is fair to say that the summation by Dr O'Brien of the outcome of his interview with the accused's children suggests to me that he did not procure from them material which was as extensive as that obtained by Dr Raeside. So far as I am aware, Dr O'Brien does not speak the Italian language. He indicated that, from a diagnostic perspective, there did not seem to be much concrete or confirmatory information obtained from the children, although he noted that they were extremely surprised at what had occurred, bearing in mind their collective knowledge of their father and their parents' marriage.
Dr O'Brien acknowledged that this is a complex case. However, unlike Dr Raeside, he seems to have proceeded on the basis of an unquestioning acceptance of the conclusion reached by Professor Burns, although I was initially unable to detect why it was that he was disposed to prefer that conclusion to the reasoning of Dr Burrow.
I think that it is fair comment to say that the ultimate opinion arrived at and adhered to by this witness is that summarised in his written report of 27 February 2003 in these terms -
"On the basis of the evidence I have to date, I am unable to state with sufficient confidence that Mr Berlingo has a progressive dementing illness. In that respect, I have been particularly influenced by the opinion of Dr Richard Burns. Should Dr Burns alter his view for any reason, it would be necessary for me to reconsider my opinion in the light of any new information made available. However, at this juncture, I am unable to support arguments that, at the time of the death of his wife, Mr Berlingo was ‘mentally impaired’."
In giving oral evidence Dr O'Brien did not really add anything of substance to his written report. He conceded that he had not read the transcript of Dr Sandhu's evidence and said that his position was that he would not be assisted by doing so, because the resolution of any dispute between him and other experts would be outside his field of expertise. It became apparent in cross examination that Dr O'Brien had proceeded on the basis of the conclusions of Professor Burns simply because he was familiar with his reputation and was not very familiar with the work or reputation of Dr Burrow. It was my impression that, if the opinion of Dr Burrow was to be preferred, Dr O'Brien might well feel constrained to revise his opinion.
In those circumstances, whilst I recognise the standing and experience of Dr O'Brien in forensic psychiatry, I am unable to attach much weight to his opinion because it does not reflect a balanced assessment and judgment of all of the relevant evidence and medical opinions in the case. It is, with respect, scarcely a compelling basis for a judgment merely to accept the view of one expert on the basis that he is known; and put to one side a large quantity of other evidence of well qualified experts, simply because of a lack of personal knowledge of those persons.
Conclusions to be drawn
As Dr Raeside correctly appreciated, the Act mandates a two-step approach to a situation such as that now before me.
The two successive questions to be asked and answered are -
·Did the accused suffer from a mental impairment at the time when he killed his wife?
·If so, did this result in the accused being unable to control his conduct in strangling her?
As I earlier indicated, the accused bears the onus of demonstrating that it is more likely than not that the proper answer to each question is in the affirmative.
It is common ground that, if it be shown that the accused was, at the relevant time, suffering from a condition of fronto-temporal dementia, then he was plainly suffering from a mental impairment within the meaning of the statute. Such a condition certainly satisfies the first and (probably) the third prongs of the statutory definition of that phrase. It is a form of mental illness and, in the context of this case, it can properly be said that the condition is one which gives rise to a disability or impairment of the mind resulting from senility (at least in the broad sense). There may even be a reasonable argument that it also gives rise to an intellectual disability.
The foregoing analysis of the evidence inevitably leads me to the conclusion that it is more probable than not that, at the time when he strangled his wife, the accused was suffering from a condition of fronto-temporal dementia.
Whilst I have given careful and anxious consideration to the contrary views expressed by Professor Burns and Sage and what has been said by Mr Bell and Dr O'Brien, I do not find their ultimate assessments convincing. I have already expressed my detailed views concerning their evidence and there is no need to retraverse the same ground.
Suffice merely to say that I consider that such evidence was inherently flawed. In most instances the experts concerned did not have a grasp of the full factual circumstances and, at least to some extent, there was a lack of logic in certain of their reasoning processes, as I have earlier demonstrated.
I am of the firm view that the combined evidence of Drs Burrow, Sandhu, Raeside and Wood, supported as it is in many respects by that of Mr Bell, abundantly establishes, on the balance of probabilities, that, at the time at which the accused killed his wife, he was suffering from a mental impairment of the nature of a condition of fronto-temporal dementia. I accept that evidence and find accordingly. I do not consider the contrary evidence of Professor Burns and Sage and that of Dr O'Brien convincing, for reasons that I have already expressed.
The first of the above questions must therefore be answered in the affirmative.
What, then, of the issue of causation?
In all fairness, the Crown Prosecutor adopted the stance that, if I found for the accused on the issue of mental impairment, then, in the relevant circumstances, a finding of inability to control conduct would follow, as a matter of logic.
I consider that that is a proper and commonsense concession.
The incident which led to the death of the accused's wife was really as bizarre as it was totally unforeseeable. It was a manifestation of extreme violence that stemmed from no apparent substantial provocation and was entirely out of character. The accused was considered by his family to have been a quiet, patient man who would always retreat from significant confrontation. There was no history of prior violence.
Moreover, the expert evidence convincingly establishes that it is not infrequently the case that, with a progressive fronto-temporal dementia, the existence of that condition can first be manifested - so far as others are concerned - by some inexplicable, florid, criminal act. That is precisely what occurred in the instant case. The accused's children are to be pardoned for not reading and appreciating the significance of those signs that, with the benefit of hindsight, were in fact apparent.
On the facts of the present case I need not occupy a great deal of time with a consideration of the issue, touched on by counsel, as to whether it must be shown that the inability to control conduct is wholly, or may only partly be, due to the dementia in question.
As to this type of issue Dr Raeside said -
"… if he has a frontal lobe dementia or disorder, his control was significantly impaired. I see it in terms of a point of no return, almost, that once the threshold of that is lowered by virtue of the mental disorder he quickly passes that before he can then control his behaviour. An example might be alcohol, for example might impair one's ability to control, but it's a progressive type of thing, depending on how intoxicated you are, about whether you have the ability to control. With him we're talking about a physical underlying template that's impaired, therefore affects his ability to control in that sense. Although he was aware that he was strangling her, he seems to have been unable then to stop. Even after the initial reaction, in that, according to him, just by having not formed any premeditation to do so. [Sic] So we're not talking about a slap or a punch, or a hit with an object that then killed her, but an ongoing thing in which he then failed to control his behaviour …"
The evidence given at trial indicates that the only logical inference to be drawn is that the accused's dementia so undermined his judgment - in the sense of his ability to plan and execute an appropriate strategy to deal with the situation with which he perceived himself to be confronted - as to lead to the disinhibited behaviour that actually occurred. It is patent that the accused must have appreciated the nature and quality of his acts and that they were wrong. However, he obviously suffered a loss of reflective capacity to find some other way to deal with the situation. There is simply no other logical explanation for his conduct.
That being so, the second question adverted to above must also be answered in the affirmative.
Verdict
Accordingly, in terms of the provisions of s 269GB(3) of the Act, I expressly find that, on the balance of probabilities, the accused was, at the time of the offence alleged against him, mentally incompetent to commit it. I so declare.
I therefore return a verdict of not guilty of the offence charged and further declare that the accused be liable to supervision under Part 8A of the Act.
I will hear counsel as to what consequential orders ought to be made pursuant to s 269O of the statute. A necessary precursor to those submissions would appear to be the preparation of reports as envisaged by ss 269Q and 269R.

[2003] SASC 109

11 April 2003