R v Bini No. DCCRM-01-394

R v PETER BINI
[2003] SADC 35
Judge Muecke
Criminal
Introduction

The accused is charged with the following offence:
Statement of Offence
Armed Robbery. (Section 158(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Peter Bini on the 20^th of February 2001 at Munno Para, being armed with an offensive weapon, namely a firearm, robbed Felicity Jane Mellor of money in the amount of about $502.00.
The accused was committed for trial in this matter on 4 April 2001 and was first arraigned in this Court on 7 May 2001. The matter was ultimately listed for trial to commence on 3 October 2001. On that day the accused pleaded not guilty. I was informed that he raised the defence of mental incompetence pursuant to Division 2 (Mental Competence to Commit Offences) of Part 8A (Mental Impairment) of the Criminal Law Consolidation Act 1935 (SA) (the Act). I was also informed that the accused admitted the objective elements of the offence. I was further informed that the accused elected for trial by judge alone. The accused elected to have an investigation under Part 8A of the Act into both his mental competence to commit the offence and whether elements of the offence have been established conducted before a judge sitting alone without a jury (s269B of the Act).
The defendant (accused) having, on his trial, raised the defence of mental incompetence, I separated the question of his mental competence to commit the offence from the remainder of the trial and considered whether to proceed first with the trial of the objective elements of the offence or with the trial of the mental competence of the accused (s269E of the Act). Counsel for the accused and for the DPP submitted that I should proceed first with the trial of the objective elements of the offence. I decided to proceed first with the trial of the objective elements of the offence and indicated that I would proceed pursuant to s.269G of the Act (3/10/01, pp 7-8).
The Objective Elements
On 5 October 2001 I received evidence tendered by the DPP. That comprised various statements of witnesses. In the case of three witnesses that was supplemented by oral evidence. I refer to some of that evidence.
At about 4.00 pm on 20 February 2001 the woman referred to in the Particulars of Offence was working at the BP Smithfield Service Station located adjacent to Main North Road, Smithfield. She was working at the console register serving customers. She heard a beep which indicated that someone was ready to use petrol pump number 6. That pump was located on the far northern side of the petrol station. As she authorised the use of that pump she looked up and saw a male about 5’ 11” tall, slim build, with white short wavy hair with a white goatee in the area of that pump. A few minutes later she heard another noise through the console which indicated that that pump had finished being used. She saw the male person, who was about 50 years old, getting back into the driver’s seat of an old white Holden ute. Because he started his ute she became suspicious that he was going to drive off. She memorised the front registration number which was SGS-697. She kept watching the ute just in case he drove off but the ute stopped directly in front of the shopfront about 40 metres from pump 6. She saw the male step out of the driver’s side door. She continued serving the customers in front of her satisfied that the male was going to pay for his petrol.
The next thing was she looked up and saw a black balaclava. She then saw the male wave a gun in his right hand with the front of the gun facing directly at her. It was a rifle with a thin long barrel. He said “give me the money, everything, everything”. She said “no worries”. She opened the till and handed the person the whole till which had about $300 - $350 in it. Once he had the till he turned around, ran out, and drove off extremely fast heading in a southerly direction down Main North Road. She put a duress call through to police. At about 4.20 pm police arrived at the service station.
In her oral evidence the console operator said that the money involved was around about $500 to $517. She indicated that pump 6, where she first saw the man, was about 12 to 15 metres away from her. She said there was nothing unusual about the way the man went about putting petrol into his ute. She said that the mouth of the barrel of the rifle was pointed towards her when he approached her inside the shop. She said that the man left the shop by walking very fast. She did not think that he ran because it was a very small shop and it was hard for him to run with the cash drawer. Of the way in which the man spoke she said he was “very confident, very calm as though he knew he had me right where he wanted me; well, he did.” The man did not pay for $49 worth of Super Green which he had put in his ute.
At the same time Mr and Mrs Radford were filling their car at the BP Service Station. Mrs Radford watched a male filling his car with petrol. The male was wearing a woollen beanie on his head which was dark in colour. She thought it was strange because it was so hot. She saw the male get back into his car. It took him a while to start his car but when he did he drove right up to the front of the BP shop in front of the door. The car was blocking the entry/exit door to the shop. She saw the male get out of the driver’s seat and walk quickly towards the shop and enter it. After a few minutes she saw the same person come out of the store and saw that he had pulled his beanie down over his face, wearing it as a balaclava. All she could see were the eye holes of it. She saw that he was holding a long gun which she thought was a rifle. He was also holding a black box with which he had not entered the store. She looked at the registration number of the vehicle. She saw the man open the driver’s door, throw the gun and the box into the car, and get in it himself. It took him a few attempts to get the car started but when he did he left the service station travelling south on Main North Road (towards Adelaide). She saw that the vehicle had a “P” plate in its rear window. She said the man involved was a 50 year old caucasian, a little bit stocky, 5’4” tall, with a grey goatee thickish beard. His car was a light-coloured old utility. In her oral evidence she said that the vehicle was driven off quickly.
At about 4.13 pm on 20 February 2001 Constables Curtis and McLean were on mobile uniform patrol when they heard Police Communications dispatch to Elizabeth patrols a hold-up alarm at the BP Service Station, Main North Road, Blakeview. Constable Curtis was stationed at the Gawler Police Station and both constables were in the Gawler West area at the time of the dispatch. At about 4.16 pm they heard confirmation that there was in fact a hold-up, so they continued south towards the service station. They heard that the offender had left in a white Holden ute displaying a “P” plate, with registration SGS-697, and that he was armed with a shot-gun. They commenced searching the vicinity on the eastern side of the service station. They drove north-east along Medlow Road up a steep hill and when they got to the top of the hill they saw a white ute travelling north-east in front of them some distance away. They eventually caught up with the vehicle just west of the junction of Gawler One Tree Hill Road, Uleybury. Constable Curtis could see that the vehicle displayed a “P” plate and that it was blowing a large amount of smoke from the exhaust. When they got within 20 metres of the rear of the vehicle Constable Curtis saw that the driver was the only occupant. He noted the registration of the vehicle to be the vehicle wanted in relation to the hold-up. He advised Communications that they had located the vehicle and were following it. They dropped back to a safer distance from the rear of the vehicle. As they followed the vehicle the smoke being blown from the exhaust became thicker. They did not attempt to stop the vehicle as it proceeded north at a speed of about 80 kph. The vehicle continued to blow a large amount of smoke and it became apparent to Constable Curtis that it could not continue much further before the motor would cease to operate.
At about 4.44 pm the vehicle stopped at a stop sign at the intersection of First and Seventh Streets, Gawler South. It was facing north. A large cloud of smoke came from under it. The driver remained seated in the vehicle for a short time. The driver’s door then opened and Constable Curtis saw a male alight from the driver’s seat. He was Caucasian, approximately 50 years of age, 5’8” tall, with heavy build with grey hair and beard. He stood alongside the open doorway of his vehicle facing the two police constables as they alighted from their vehicle with revolvers drawn pointed in his direction. Constable McLean yelled at the male to put his hands up. The man stood there looking at them not moving. He then leaned back into the vehicle across the front seat before standing back up again holding a black rifle in his left hand. The police constables commenced to yell at the man “Police. Drop your weapon”. The man held the rifle so that it was pointing forward at an angle of 45 degrees to the ground. He turned and walked away from the police vehicle walking in a northerly direction. By that time two other police officers in a police vehicle had arrived at the scene. Constable Conway was one of those police officers. The male kept walking north as the police continued to yell at him to drop his weapon.
Constable Darlington then arrived at the scene to the north of the male with the rifle making him stop. Constable Conway commenced to speak with the male as the other police officers took positions behind cover. The male was facing Constable Conway still holding his rifle in the same position when he said “what do you think I’ve done this for? I want you to shoot me.” Constable Conway had a further short conversation with the man before the man squatted down on the ground and placed the rifle on the ground in front of him. He then knelt down on the ground and placed his hands behind his head as police officers moved forward and handcuffed him. The man was placed into a cage car, given his rights, and conveyed to the Elizabeth Police Station.
Cash to the value of $6.40 was found in the man’s pockets. Within his wallet found on him were notes and coins to the value of $495.60. Also in the wallet was found a South Australian photographic driver’s licence in the name of the accused. The photograph on it was of the accused. The address on the licence was 9 Springbank Road, Blakeview. In the vehicle was found a black balaclava in the passenger side floor-well. The rifle that the man had put down on the footpath was a .22 calibre bolt-action rifle with a black coloured wood stock. It contained no magazine. Police recovered a black plastic cash register till drawer.
Constable Frick attended at the BP Service Station at about 4.30 pm on 20 February 2001. He seized a security video there. He attended at the corner of Seventh and First Streets, Gawler South where he saw the person Constable Conway had spoken to. He was hand-cuffed and standing next to the cage vehicle. That person was the accused. He was present when Senior Constable Baker interviewed the accused in the presence of ’Lynne Russell. The accused declined to answer any questions and declined to take part in a forensic procedure. The accused was charged. The next day Constable Frick viewed the security video tape that was seized from the BP Service Station. He recognised the clothes being worn by the man depicted in the video as being similar to that worn by the accused at the time of his arrest.
Senior Constable Baker spoke to the accused’s solicitor, George Mancini, at about 5.49 pm on 20 February 2001. He was advised by Mr Mancini that the accused would not answer any questions in relation to the matter. Mr Mancini also advised him that the accused would not consent to a forensic procedure and would not consent to a formal identification parade until he had further discussions with him. Whilst waiting in the interview room for the arrival of Ms Russell Senior Constable Baker observed the accused to be quiet, he had a slight smell of liquor on his breath, and he appeared not affected by liquor or drugs. He was wearing a blue polo shirt with striped collar and grey Adidas shorts with black and grey stripes on the bottom. He wore prescription glasses. He had a grey goatee beard and a ginger/grey moustache. He had short grey curly hair and was of heavy build.
In his oral evidence Constable Curtis marked Exhibit P16A which showed the location of the BP Service Station, the place where the accused was apprehended and the route through which the police had followed the utility from where it was first seen until the place of apprehension. Constable Curtis said that distance was possibly about 10 kilometres. Constable Curtis agreed in cross-examination that the situation was a high risk situation, even from the time they first observed the utility. He agreed that as the events unfolded the high pressure situation increased dramatically. The escalating drama caused him to be concerned for his safety and the safety of other police officers. The conduct of the suspect indicated a lack of compliance with commands being yelled at him and an increasing escalation of the risks to the safety of police officers. He said that Constable Conway adopted a less threatening approach to the suspect and was trying to diffuse the situation by striking up a conversation with him. He could recall that the suspect had said “what do you think I’ve done this for, I want you to shoot me”, but he could not remember anything else that was said. He believed the suspect did say a few other things but not much. The incident came to an end by the suspect squatting on the ground and putting the rifle to one side. Constable Curtis said that he felt threatened during the incident but not threatened enough to pull the trigger of his weapon. He said that he would have felt threatened whatever the suspect was doing with the rifle that he held. Constable Curtis said that he did not hear Constable Conway say to the suspect, “Well, we are from Gawler, not Elizabeth, we don’t shoot”. Constable Curtis said that could have been said and he might not have heard it because he did not hear all the conversation.
Finally, I mention the statement of Constable Pike that was tendered with an attachment. That was a “Running Sheet re 303, BP Service Station, Main North Rd, Smithfield”. The Running Sheet records at 16.44 hours “Gawler 30 advises male in First Street, Gawler, with firearm - advised stationary with f/arm”. It further records at 16.46 hours “Gawler 30 - advises suspect in custody cnr. First and Seventh Streets”. It further records at 17.07 hours “Advice from EH96 – wife of suspect - PETER BINNI (sic) - stated he was a ‘suicide by police type of guy’. Apparently disturbed (mentally). Supposedly drinking at the Tarlee Hotel. Left home address at 1330 hrs to go to Tarlee. (Doctor apparently in Hutt Street, ADELAIDE) Ph. no. of wife 8254 8526.” Also it is recorded at 1708 hours “EH71 (WELLS) on scene - Details relayed ...”.
The above was some of the evidence that was put before me by counsel for the DPP in the investigation under Part 8A of the Act into whether the objective elements of the offence are established beyond reasonable doubt (ss.269B(1)(b) and 269GA(1) and (2) of the Act). Following the case for the DPP on the objective elements I was informed by counsel for the accused that he did not have any evidence on the objective elements. Counsel for the DPP submitted that there was sufficient material before me for me to be satisfied beyond reasonable doubt that the accused was the perpetrator of the events at the service station and that I should record a finding (under s.269GA(2) of the Act) that the objective elements of the offence were established. Counsel for the DPP stated that given the intimation by the accused’s counsel at the outset of the trial that the objective elements were not in dispute, he proposed to say nothing more in his address. The accused’s counsel had no submissions to make.
Just after noon on 5 October 2001 I indicated that I was satisfied that the objective elements of the offence of armed robbery against the accused were established beyond reasonable doubt. I excluded from consideration on that question any question of whether the accused’s conduct was defensible (s.269GA(3) of the Act). I recorded a finding that the objective elements of the offence are established (s.269GA(2) of the Act).
Examination of Accused by Dr K O’Brien
Having recorded that finding I was obliged to proceed in accordance with s.269GB of the Act. Relevantly that part of s.269G provides:
(1)If the court records a finding that the objective elements of the offence are established, the court -
(a)     must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant’s mental competence to commit the offence; and
(b)    may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.
(2)The power to require an examination and report under subsection (1)(b) may be exercised -
(a)     on the application of the prosecution or the defence; or
(b)    if the judge considers the examination and report necessary to prevent a possible miscarriage of justice - on the judge’s own initiative.
(3)At the conclusion of the trial of the defendant’s mental competence, the court must decide whether it has been established, on the balance of probabilities, that the defendant was at the time of the alleged offence mentally incompetent to commit the offence and -
(a)     if so - must record a finding to that effect;
(b)    if not - must record a finding that the presumption of mental competence has not been displaced and proceed with the trial in the normal way.
After I recorded a finding that the objective elements of the offence were established counsel for the DPP applied, pursuant to s.269GB(2)(a) of the Act, for an order, pursuant to s.269GB(1)(b) of the Act, that the court require the accused to undergo an examination by a psychiatrist and require the results of the examination to be reported to the court. That application was opposed by the accused. After hearing argument, by order, I required the accused to undergo an examination by the psychiatrist, Dr K O’Brien, and I required the results of the examination to be reported to the Court.
I refused an application by the accused that I state a case to the Full Court of the Supreme Court as to whether I had power to make that order, or if I did, whether I was correct in exercising my power to do so. On 16 April 2002 the Full Court of the Supreme Court published reasons for dismissing an application by the accused for an order that that Court require me to reserve a relevant question for consideration and determination by that Court.
Dr O’Brien examined the accused on 13 and 21 May 2002. He chose to report the results of his examination to the Court by forwarding a written report dated 27 May 2002 to the Court. It was never suggested that that was not a proper way of reporting the results of his examination to the Court.
On 17 June 2002 I directed that the defence present his evidence and representations on the question of his mental competence to commit the offence first. I ruled, over objection by counsel for the accused, that I would permit the DPP to call Dr O’Brien as a witness at the “trial” should he seek to do so. I published brief reasons for these rulings (17 June 2002, pp 279, 282, 292). I also heard and determined a Rule 9 Application on behalf of the accused relating to Dr O’Brien’s report. Included in the grounds of the Rule 9 Application was a ground that the question as to whether a borderline personality disorder was a mental impairment within Part 8A of the Act had been the subject of a judicial determination in R v Bini (2000) SADC 137 and was therefore a matter that could not (or alternatively should not) be advanced by the DPP in these proceedings. It was submitted that I was bound by a previous decision of this Court as to that matter. Alternatively, it was submitted that, if I was not bound as a matter of law, I should follow a previous decision of this Court as to that matter. On 27 June 2002 I ruled that it was premature for me to decide whether, on evidence that I had not yet heard, a borderline personality disorder from which the accused may or may not have suffered at the time of the alleged armed robbery on 20 February 2001, fell within the definition of mental impairment within Part 8A of the Act. I considered that I could not make any decision on that matter until I had heard the evidence. I indicated that whilst I considered that it was premature for me to make any decision at that stage, that was not to preclude those representing the accused to argue, on the evidence that was properly before me at the end of the trial, either that I am bound as a matter of law to follow an earlier decision of this Court, or that I should do so as a matter of comity. I indicated that I would hear and determine any such issue at the conclusion of the trial.

My investigation under Part 8A of the Act into the accused’s mental competence to commit the armed robbery on 20 February 2001 commenced on 4 November 2002. Counsel for the accused and the DPP agreed that in that investigation I should have before me the evidence that was before me when I considered whether the elements of the offence were established.
Before coming to the evidence that was put before me by the defence and the prosecution on the question of the accused’s mental competence to commit the alleged armed robbery I refer to an earlier trial involving the accused. It is relevant and important to the matters that I have to consider and decide in this case. It pervades much of the evidence and the various applications and submissions that were made before me throughout my investigations under Part 8A of the Act.
Judge David’s Investigations
In 1999 the accused was charged with three armed robberies and an assault with intent to rob whilst armed. It was alleged that he committed those four offences in December 1998 at various places. On arraignment in this Court he pleaded not guilty to each count and elected for Trial by Judge Alone. He raised the defence of mental incompetence. Judge David conducted an investigation under Part 8A of the Act into whether the elements of the offences had been established and into the accused’s mental competence to commit the offences. Those investigations were conducted between 31 October 2000 and 7 November 2000.
The Judge found that the objective elements of the four charges had been proved beyond reasonable doubt and recorded findings to that effect. He then heard evidence and representations on the question of the accused’s mental competence to commit the offences. All the witnesses who gave evidence before Judge David gave evidence before me.
Judge David published reasons for his decision on 23 November 2000. In those reasons he wrote:
Dr White was of the opinion that the defendant was suffering from an adjustment disorder with depressed moods and a pre‑occupation with “suicide ideation”. Dr Chris Branson who has been treating the defendant since the middle of 1999 and is a practicing psychiatrist, is of the opinion that the defendant was suffering from a borderline personality disorder. He defined a borderline personality disorder in the following terms:-
“a personality disorder is an abnormality of a person’s basic personality style and characteristics, which derives from developmental factors and upbringing rather than the later development of a discrete mental illness (e.g. such as schizophrenia).”
He was also of the view that such a disorder produces serious effects on the sufferer’s thoughts, feelings and behaviour which could be seen to fit the description of a “pathological infirmity of the brain”.
I am therefore of the view that it has been proved on the balance of probabilities that at the time of the conduct giving rise to these four offences the defendant was suffering from a mental impairment. On either of the diagnoses of Dr White or Dr Branson I am of the view that it has been proved that such a mental impairment existed at the time. The Prosecution have not called any evidence to the contrary and indeed have not disputed that such an impairment did exist at the time. The question is whether it has been proved that as a consequence of that mental impairment in relation to each of the four offences the defendant was unable to control his conduct.
In his reasons the Judge referred to the accused’s case. He wrote:
The defendant’s case is that he was suffering from a mental impairment and because of that mental impairment was unable to control the conduct which was the subject of the charges. There is no argument that he did not know the nature and quality of that conduct or he did not know that what he was doing was wrong. There is no debate that “the conduct” is the conduct which is the basis of the offences.
There appears to be no reported decision on what is actually meant by the words “is unable to control the conduct”. I heard argument from counsel as to how I should interpret those words and I find that their interpretation is not without difficulty. However at the end of the day in my view those words should be given their everyday meaning. I therefore agree with the interpretation urged upon me by the Prosecution namely that “unable to control the conduct” means a total incapacity on the part of the defendant to restrain himself from committing the acts which form the subject matter of the charge. That is to be contrasted with a lesser loss of control such as severe temptation to which he succumbs. In my view in order to come within Section 269C(c) there must be a total inability to control the conduct in consequence of the mental impairment.
The Judge concluded his reasons in the following way:
Both Dr White and Dr Branson are of the opinion that “the conduct” was as a direct consequence of the mental impairment. Dr White gave a clear opinion that because of the mental impairment he could not control his conduct in respect to the commission of the robberies (transcript page 87 line 33) and also was of the view that when he told the Court that he did those robberies for the purposes of committing suicide that was consistent with his opinion (transcript page 93 line 1). Although he conceded that there might be other possibilities concerning the defendant’s state of mind and his behaviour at the time of the robberies nevertheless his opinion was that because of the mental impairment which he diagnosed the defendant was unable to control the conduct which is the subject of the charges.
Dr Branson was also of the opinion that because of his borderline personality disorder that at the time the defendant as a consequence of that was unable to control his conduct (transcript page 125). In explaining what he meant by the words “unable to control the conduct” he said what he meant by that term was “In this case, yes, I believe he was not equipped to do anything else with his feelings and emotions other than what he did in such an impulsive way and in that sense he was unable to control his conduct in the sense of his mental impairment” (transcript page 126 Line 11). When cross-examined he accepted the possibility that the defendant, when the symptoms of his mental impairment came on, may have acted in an impulsive fashion with a view to self destruction yet possibly could have a residual disability to resist if he wanted to (transcript page 134 line 22). However in reality Dr Branson was of the opinion that the defendant would not be in a situation which was capable of thinking clearly about the choices he might have.
I have been greatly assisted by the evidence of both Dr Branson and Dr White in the resolution of this very difficult question. However I remind myself that the ultimate decision is mine and not that of the expert witnesses. In my view their opinions are supported by the very facts surrounding the defendant’s behaviour at the time. In many ways the objective behaviour of the defendant is quite bizarre. That of itself of course does not mean that he was necessarily mentally impaired or that he was unable to control himself because of his mental impairment. There are many bizarre factual circumstances which appear in the criminal courts in relation to the behaviour of perfectly sane people. However the surrounding objective facts here reinforce the expert opinions. I note the strangeness of the behaviour in committing an offence almost a day or so after walking out on bail in relation to the first offence of the 23^rd December. I also note the odd behaviour in going back to the same service station that he robbed on the first offence and the almost casual way which the declarations indicate to me that these offences took place. Those factors combined with the uncontradicted evidence of the experts plus the defendant’s medical history sways me to the view that it has been proved on the balance of probabilities that as a result of his mental impairment he was unable to control the conduct which was the subject of the charges and therefore he was mentally incompetent to commit these four offences with which he is charged.
After publishing these reasons Judge David recorded a finding that the accused was, at the time of the alleged offences, mentally incompetent to commit the offences. He recorded that the accused was not guilty of those offences and declared him to be liable to supervision. He called for four reports pursuant to section 269Q of the Act. Dr Branson prepared a report pursuant to that section (Exhibit D18, dated 11 December 2000) as did Dr White (Exhibit D21, dated 15 December 2000 but incorrectly marked 15-8-2000)). Dr O’Brien also submitted what he referred to as a section 269T2a report pursuant to the Criminal Law Consolidation (Mental Impairment) Amendment Act 1995 (Exhibit D23, dated 28 December 2000).
On the morning of 20 February 2001 there was a Directions Hearing before Judge David. The accused attended at that hearing. It was on the afternoon of that same day that he committed the conduct which is alleged to give rise to the offence of armed robbery on 20 February 2001 which was the subject of investigations before me.
I now come to the evidence of the witnesses that were called before me as part of my investigation into the accused’s mental competence to commit the offence of armed robbery on 20 February 2001 alleged against him.
The accused Peter Bini
The accused was 46 years old when he gave evidence in November last year. He spoke of a difficult childhood. He thought he was about 18 years old when he attempted suicide by slashing his left wrist with a razor blade. He had thought about suicide a couple of years before then and, although he had made some preparations to suicide, he ended up drinking and falling asleep instead. Two or three years after the first attempt he slashed his wrist again in another suicide attempt. He had suicidal thoughts many times from when he was 15 years old. He described his thoughts in this way:
... it feels like my mind is like a vice and it’s squeezing, and just keeps squeezing and squeezing and it feels like I have to run, I have to go, I have to get off the planet. It’s like those type of feelings, those type of thoughts, and then I end up feeling what the doctors say is a self-destruction and I – all I want to do is do harm to myself which I know is true. All I want to do, I want to get off the planet, I want to die. I start feeling bad about myself. I think of the people that are around me that I’ve hurt around me and I’m no good to them anymore and the best thing to do is for me to commit suicide, to go away, and everybody else will be happy now that I’m not around.
At the age of 21 years he started a relationship with a woman and they were together for six years. They separated in August 1984. He blamed himself for that separation and “turned to the bottle”. He started drinking heavily and took up gambling. He was the treasurer of the social club at the place at which he was then working and he “got done for fraudulent conversion”. He signed some cheques for himself to get money to gamble. After his separation from his wife he was imprisoned for two months when he was about 27 years old for breaching a restraining order obtained by his former wife.
He commenced another relationship at about the end of 1986. There was a son from that relationship. That woman left him to go to Queensland with their son who was then three months old. He has not seen that son since. When he found out that she had left him he “just walked straight around the corner to the Christies Beach Hotel and got on the drink”. He said he always blamed himself when something like that went wrong. He thinks it is his fault and he must have done something for that to happen. At the time he purchased a knife and drove around in a motor vehicle thinking about suicide.
There was another relationship which commenced in January 1989. There were two boys from that relationship and it lasted, the accused thought, six years. There were arguments during the relationship and on one occasion he told his partner to take the children out of the house which she did. He locked all the doors and got all the sharp kitchen knives out of the drawers because he was going to commit suicide. The police arrived and he would not let them in. He eventually did and he was taken to Glenside Hospital where he stayed for four or five days. He had admitted himself to Glenside on two or three occasions prior to that.
He said that he behaved in these ways because of “the thoughts of being no good to yourself, no good to others, you are better off dead. It is just thoughts that you can’t keep out of your head … It’s just thoughts of wanting to kill yourself, you are no good to anybody, you are better off - everybody else would be happy if you weren’t around”. He said these thoughts of suicide were “just overwhelming, the thoughts of doing yourself in, getting off the planet”. He said he feels “out of control. Just to get it over and done with so I can get myself over and done with, get shot, get done, kill myself, whatever”.
In October 1993 he robbed a petrol station at Glenelg. He said :
That was after seeing Dean’s grave. I felt bad in myself and plus I was arguing with Leanne at the time as well. I wanted to go back to prison and I thought the best way to do it is to do something like that and I went to the police the following day and said ‘Did you have a petrol station robbed at Glenelg last night?’ and the sergeant at the desk said ‘Yes’ and I said ‘Well I did it’. He gave me a cup of coffee and I talked to detectives that was doing the incident and I confessed to them.
QWhat were your thoughts leading up to that robbery.
AThat robbery was wanting to do harm to myself. I thought my best position was to get away from everybody and go back to gaol and I would be out of everybody’s care.
QWere you feeling suicidal at all.
AYes, but I thought on that occasion that if I am away from everybody and in gaol then I am not going to hurt anybody and I am only going to hurt myself. And that was a three year, nearly a three year sentence, two years and eight months I think. There was originally a suspended sentence but it got changed. After that I did go to - I admitted myself to the Royal Adelaide as well.
QBut in respect to your thoughts at the time of this robbery, or leading up to it, did you have in mind anything about what the police might do.
AYes, that was if I could confront the police at the time of the robbery, hopefully I would have got shot and it was either being shot or go to prison.
QWas the thought of being shot by police part of why you robbed the petrol station.
AYes, yes to commit suicide.
After he was bailed on that charge he went to Glenside Hospital. He was ultimately imprisoned for this robbery, for fraudulent conversion in respect of the monies from the social club, and on charges of damaging property, assault police and resist police which had arisen from when he locked himself in his home in August 1993. He went to prison in March 1994 and was released on parole in November 1996, or thereabouts.
Whilst he was in prison he was involved in working with men’s support groups and that work continued after his release on parole. He lived with his former de facto partner but that only lasted a couple more months.
He commenced a new relationship with Jocelynne Russell in August 1997 and they became engaged in August 1998. His period on parole ended, perhaps, in November 1998. Before that happened he attended a conference concerning men’s groups in New South Wales. There he started to feel bad about himself, thinking what he was doing for other people but not doing anything for himself. This led to further suicidal thoughts and an occasion when he took some tablets causing an emergency admission to Royal Adelaide Hospital. This was as a result of the suicidal thoughts he had at the conference in New South Wales. He felt then that he was “no good for anybody, you’re a hypocrite, you’re just no good.” In August 1998 there was an incident when he purchased a knife and drove around the Adelaide Hills debating whether to slash his wrists or where to do it. He parked across the road from the Royal Adelaide Hospital and ultimately took the knife into the hospital where he was admitted for a week. He saw a psychologist there. He was referred to Dr Chris Branson in August 1998 but he did not follow up that referral. He did not see Dr Branson until the end of May the following year, 1999.
After his release from Royal Adelaide Hospital he continued to have suicidal thoughts. He had been prescribed an antidepressant which he took for a week. Just before Christmas he was visiting his brother when they were talking about the men’s support groups that he had been working with. His brother had said to him “yes, this is pretty good until you stuff up the next time”. He took that seriously and the next thing he knew he was robbing a petrol station on Grand Junction Road, Rosewater. He was thinking that he did that “for the confrontation with police initially”. He had a knife. He did not know why he had the knife other than to say to the attendant that you mean business. That was the knife that was in his car to commit suicide. He spoke to his partner ’Lynne on the phone and asked her to tell the police to ring him. They did and he told them where he was. They picked him up and he was arrested. He told police that he was not in his own mind and he was looking for a reason to do away with himself. He told them that after the robbery he was intending to do another one to get the police to chase him and kill him. He was given bail and he went home. He left the house and drove to Murray Bridge, stopped in front of a record store, walked in, showed one of the two female attendants there a knife and asked them to give him money. He grabbed a handful of notes and drove to Bordertown. He did that because he was going to Victoria to be shot by the police over there. He stayed at Bordertown and started thinking about his partner. He then started driving back to Adelaide and stopped at the Arkaba Hotel. He bought six cans of beer and as he was driving out he stopped his vehicle, went back to the attendant and demanded money from him. He said he had been drinking during the day leading up the robbery at Murray Bridge.
The following day he went back to the BP Service Station at Rosewater which was the Service Station which he had previously robbed. That was the one that he had got bail on. He attempted to rob it again. He thought that if he kept doing robberies sooner or later the Police were going to shoot him. He was then followed in his car by police who ultimately pulled in front of him, drew their pistols and told him to get out of his car. He was hand-cuffed and taken to the Port Adelaide Police Station. He was kept in custody until late January 1999 when he was placed on home detention bail.
These were the incidents into which investigations were conducted by Judge David in October and November 2000 to which I earlier referred.
The accused said he had suicidal thoughts at the time he committed the robberies in December 1998. Those thoughts were “very strong, very overwhelming”. He could not control those thoughts or stop them. He committed the robberies because he “wanted to be shot. I wanted to be shot by the police, because all my last attempts of taking a knife and it just didn’t happen, so I thought ‘I’ll get shot by the police, it will all be over with’”.
He said that before the 1998 robberies there was an occasion when he left home and went to Melbourne. He went to Melbourne because he “wanted to get shot over there because of the police (there) were better shooters”. He said the Adelaide police were not “renowned for shooting people”. When he got to Melbourne he met up with some people there that he knew and ended up coming back to Adelaide.

The accused saw Dr Branson in May 1999. He was prescribed an antidepressant and a mood stabilizer. He did not have suicidal thoughts thereafter in 1999 although on one occasion he had a few problems in his mind. He saw Dr Branson and that eased his mind.
The accused was asked to tell us about the circumstances of the events which led to the investigations that were conducted before me. He answered :
That was in January. I was under Judge David, seeing Judge David, and I think it was on the same day and I was found not guilty under mental incompetence to the three armed robberies and actually that day, being in court just - I didn’t understand it, it just went right through me, went in one ear and out the other. I wasn’t even concerned of Judge David’s findings, like it wasn’t, you know, a reaction or anything. My mind was just a blank, mainly for the fact that before I came into court, I was accused of allegations of sexual misconduct with my goddaughter by her stepfather.
QTell us a bit more about how that came about, what happened. Where you were told, what you were told.
AThat was the day before my time - the day before Judge David’s findings and a couple of days prior to that I had a party at my house because I was on bail, I think, for nearly 22 months while that trial was going on, and I had a party at my house and I invited some friends. I didn’t realise, I didn’t know until afterwards that because my spouse got a WorkCover payout from Corrections or from WorkCover, because my spouse was a Correctional Services officer for 11 years, and unfortunately when I did the robberies she got dismissed from her employment for being with me after 11 years of service which she was very unhappy about. But the people involved that accused me of molesting her daughter -
He said that he heard that from ’Lynne at Court on the day that he committed the robbery at Munno Para which is the subject of this charge. He said that when he came to Court on that day ’Lynne said to him about Mark and Randy asking for money. Then he said that she told him that two days before Court on 20 February 2001. He felt “very, very angry, ropeable”. He said then that on the morning of 20 February 2001 Lynne got another call from Mark Hill saying he had sexually molested his (Mr Hill’s) daughter (who was the accused’s god-daughter). He said he saw Mark Hill and his wife Ros before they went into Court that morning and Ros Hill was going to withdraw being a guarantor. He said these events were “absolutely gut turning”. When he walked into court to hear the Judge’s findings it just did not register to him. It went in one ear and out the other. He could recall some discussion in Court about whether he would go to James Nash House as a result of the Court’s findings and he was a bit concerned about going to James Nash House. He said after the Judge made his findings he was remanded for a month because he believed the Judge wanted to see Dr Ken O’Brien and wanted to know why James Nash House was not suitable for his condition. Dr O’Brien had said he would prefer that he was in the community under licence. He said he went home with ’Lynne but had to get out again. ’Lynne said “no, stay here and ring up Chris (Branson)”. He had said he was just going for a drive, he just needed to clear his head. He was really mad about the sexual allegations.
He drove his car to Tanunda and sat on a bar stool at the hotel there drinking beers. Some locals came in and started telling jokes and that made him feel a bit happier. He drank about $50 worth of beer over the bar. He rang his partner Lynne and asked her to put some money in his key card. That was about 2.30 – 3.00 pm. She refused and told him to return home to ring up Chris Branson. He ultimately agreed to go home. He said:
And I got into the ute and started driving back to home, and then the negative thoughts started coming again, a lot of thoughts that I am no good to Lynn because of all of this around her. Judge David’s findings weren’t even in my head. Going to Nash House was. Even though the finding was good, of not guilty, I knew it was either going to be Nash House or out into the community under licence. But that wasn’t in my mind, it was the accusations.
QWhich accusations.
AThe sexual allegations. Lynn - what I had done to Lynn from the fact - because there was a good chance she was going to lose her car that she had just bought because the department, when she got her payout, the Department of Correctional Services said she wasn’t allowed to get a government job for three years, I think she couldn’t do something else for another three years, she wasn’t allowed to see the media for three years, all this type of stuff. Because when she did get the sack she ended up getting her job back from the High Court because they found it was wrong to dismiss her.
QWere these the thoughts you had in your mind at the time.
AA lot of it I blame myself for her losing her job, which I still do. She lost her car at that time, she couldn’t keep up the payments and there was a good sense that she might lose her house that she was paying off, it was her dream home, she built it herself with the mob, and I just kept thinking that everyone would be better off without me. Lynn would be better off and there would be no more hurt, and I stopped before the Munno Para petrol station, the BP petrol station and I sat in the car and I was arguing, trying to get the thoughts out, but it was so overwhelming, the thoughts were there to ‘Okay, let’s rob the petrol station and have a confrontation with the police and do it right’. And then I remembered I had a rifle in the back of the ute which I got from one of the guys that I was seeing up near Clare in a domestic dispute, and I was still doing a little bit of men’s group stuff, and his wife asked if I could take the rifle away and I said ‘Yeah, no worries’, which I did, and put it in the back of the ute. It stayed there for nearly a week, I was always going to take it to the police station but it stayed there, I just kept forgetting about it. So I got the gun, there was no bullets for it, and I had a beanie in the car and I made a couple of holes in that and I thought ‘Make it look good, because if you make it look good you will get shot’, and I went in there and filled up the car with petrol and then drove in front of the shop and got out and then put the beanie on when I got out. I walked into the shop and said to the girl ‘This is a robbery’, she said ‘Okay’. She took the till out and I grabbed the till and walked out and put it in the car along with the rifle and drove off. I took the first turn left, which is not far from the petrol station, and drove right up to the top and stayed there for a while. I was only around the corner from home and I stayed there for a while thinking that - waiting for the police to get to the petrol station because I thought if I drove back I could confront the police at the petrol station and then it would all be over with. So I started the car back up, and I wasn’t too sure where this road went to, but I just followed it down and looked in the rear view mirror after a while and there was a police car behind me with no flashing lights or anything, just behind me about two cars back. We were the only ones on the road and I got down to a roundabout and I realised that I was in Gawler and I got down to the roundabout and the hose on my car blew, the radiator hose, and being a V-8 it just slowly stopped to a stall. So I got out the car and the police got out of theirs with their guns drawn and said ‘Put your hands in the air’. So I put my head back in the cabin of the ute and got the rifle out and pointed it at them and said ‘You put your hands in the air’.
QWhat was your thinking at that time.
AThat this was - I got a confrontation and all I had to do was get the rifle out and I was going to get shot. So I poked my head in and got the rifle out and said ‘Put your hands in the air’. And then it was just ‘Drop the rifle, drop the rifle’. So I am saying ‘You drop yours’ and ended up putting the rifle over my shoulder and walking down the street. Police came from everywhere, all over the place, behind trees and seemed to be behind poles, and there was one main officer that was talking to me with his gun drawn and I am pointing it at him, pointing the rifle at him. He is saying ‘Drop the rifle’ and I’m saying ‘No, shoot me’.
QWhat was your thinking in saying and doing that.
A‘Shoot me’, that everything would be over with. Lynn would be happy, I will be happy, there would be so many people who would be happy because I would be shot and I would be dead. Then the policeman said ‘No, we are not going to shoot, we have already seen Lynn and she told us why you have done it and we are not going to shoot you’. As soon as he said that, everything just went gone again, I just threw the rifle down and went to my knees and started crying, and I got into the van and as well, I don’t know if he meant this as a joke or to calm me down but he said ‘We are from Gawler, not from Elizabeth, we don’t shoot people’.
QWhat did you think about that and about what had been said to the police speaking to Lynn and why you had done it.
AWhen they said that ‘We know why you have done it’, and ‘Lynn has told us and we know why you have done it’, and ‘We are not going to shoot you’, I knew then that the effort was a failure and they were not going to shoot no matter what. And plus I didn’t have any bullets to like shoot in the air or things like that, there was nothing I could do.
QHad your thoughts about being shot by the police come to a stop.
AYes.
QWhen.
AAs soon as he said that and about ‘We are from Gawler, not from Elizabeth’ it just went dead again.
QWhen had those thoughts started on that day.
AThat was coming back from the hotel.
QThe hotel at Tanunda.
AYes.
QAfter you had spoken, by telephone, with Lynn.
AYes.
QHad those thoughts continued until they stopped.
AYes.
QWere those thoughts similar to thoughts you have mentioned in evidence having had in the past.
AYes.
QSimilar in nature.
AYes.
QSimilar in degree.
AYes.
QHow strong were these thoughts.
AVery strong.
QWere you able to control those thoughts.
ANo.
QWere those thoughts present before the robbery and leading up to the robbery.
AYes.
QWere they present during the robbery.
AYes.
QWhy did you commit the robbery.
ATo die, to get shot.
QWere you able, at the time of the robbery, to control your thoughts, these thoughts you have described.
ANo.
QDid you think you had a choice about what you would do whilst you had these thoughts.
ANo.
QDid you debate these thoughts in your mind.
ANo.
QWere you feeling rational.
ANo.
He said that the thoughts of getting himself shot and getting rid of himself were going through his head “like 100 miles an hour”. He remembered shaking and sweating and having a tightness in his head, like a vice turning and turning on his head squeezing it.
These symptoms started when driving back from Tanunda thinking how everything was going smoothly with Dr Branson and then the sexual allegations he felt were “a big kick in the guts”. He felt no matter how good he did, he was still going to get kicked and it was not worth living. He started blaming himself and thinking that ’Lynne would be better off without him. These feelings in his head were “very, very overwhelming” and continued until the officers said that they were not going to shoot him.
He said that the balaclava he used was already in the car which had been recently purchased by ’Lynne as a working car. “The owner left the beanie in there”. He said he had got the rifle from some acquaintances of his. He had taken it from their house just outside Clare indicating that he would drop it off at the Elizabeth Police Station. He had not yet done that.
He said that when he stopped before the service station-
... I was trying to get the thoughts out of my head, and because I only lived a short distance away, and I - the thoughts were just so overwhelming, I thought - I went to the car and I took the rifle and put it in the passenger’s side and went to the petrol station.
QHow were you trying to get the thoughts out of your head.
ABy just throwing them out of my head. It was - because they were coming in so quickly and overwhelming I was just fighting with them, I was saying as in ‘No, this is sort of’ - not ‘sort of’ - ‘This is wrong, I’ll go home, I’ll go home’ but the robbing the petrol station and ‘You’re no good’ again came into it and ‘You’re better off dead’ overruled that completely.
QWhen you were being pursued by the police, can you give us some more detail about that.
AThat was going down a side street from - which was off the top from the petrol station. I can’t remember the name of it. I don’t know the name of the road, but I was on - to me I was the only car on the road and I looked in the rear-vision mirror and there was no car behind me. Then after a while I looked, because my intentions were to go back to the petrol station because by that time the police would have got there and ‘I’ll go back to the petrol station and confront them with the rifle and get shot’, and then I looked in the rear view mirror, and there was a police car behind me, and with no flashing lights, and that’s when I said before that, the car blew a heater hose and conked out and I got out the car and the police got out their car with their guns and said -
QWhen you’d seen the police and whilst the police were in your vicinity up until you brought an end to the situation, or the situation ended, did you have thoughts.
AWhen I saw the police car in my rear view mirror I thought ‘This is great, I’m going to get shot, all I have to do now is get out the car with the rifle and that’ so I got out, ‘I’m going to have a confrontation with them, I’m going to get shot and everything will be all right and they’ll be all right and I’ll be all right.
QWere these thoughts similar to what you had at the time of the robbery.
AYes.
QA continuation of them.
Later in his evidence the accused was asked:
When you were thinking the thoughts at the time of the robbery or leading up to it that you’ve described, did you think about the consequences of what might happen in the robbery to anyone else apart from myself.
ANo. I knew that no-one was going to get hurt except for myself. I wanted to do my own self harm.
QDid you take money.
AYes.
QWhy did you take money.
ATo form the robbery.
...
QCould you explain that.
ATo let the police know that I robbed the petrol stations, so this is a robber and we’re looking for a guy with a gun who’s just robbed the petrol station of money and be wary of him, he might use the other firearm, and I’m hoping to be shot.
QDid you think at the time of the robbery that what you were doing was wrong.
ANo.
QWere you thinking at all about that.
ANo, I just wanted to get myself shot and get it over and done with.
HIS HONOUR
QWhy did you think the police would shoot you if you hadn’t done anything wrong.
ANo, the petrol station with the firearm, I thought ‘If I do this, then the police will shoot, especially robbing a petrol station with a firearm’, and I thought well now, like with the balaclava - I’m calling it a balaclava, it was a beanie, ‘The balaclava, the rifle, I’m going to get shot this time and everyone else will be happy and Lynn will be rid of me and, yes, everyone will be happy around me’.
QI thought you told Mr Mancini you didn’t think that robbing the service station was wrong.
AYes, his question was did I believe it was wrong at the time, and I said ‘No, it wasn’t’.
QWhy, if you didn’t believe it to be wrong, did you think the police would shoot you.
ANo, the question was if it was wrong at the time to me. To me no, it wasn’t wrong, because my main ambition was to be shot. That’s what I meant.
He said he did not feel that there was anything he could do to stop his thoughts at the time of the robbery nor anything he could do to stop the robbery. He said that the alcohol that he had had at the hotel had no effect on him.
Under cross-examination the accused said that the medication prescribed by Dr Branson through 2000 seemed to prevent him developing suicidal thoughts. He did not experience any such thoughts in 2000. He continued his medication into 2001. However, “leading to the last court case” with the Judge he was not taking his medication regularly. That was in January 2001 through to February 2001. He was taking about half his medication in that time. He had told Dr Branson in January that he was skipping some mornings but he did not tell him that he was only taking about half his medication. He said he was due to see Dr Branson again on 22 February 2001. The accused said he was not too sure why he dropped back to about 50 per cent of his medication. He thought it might have been because he was sleeping a lot because the trial was very draining. He said he thought it was in February that he was found not guilty on the ground of mental incompetence and also there were the sexual allegations, although he said these had only arisen a couple of days before 20 February 2001. The accused was asked:
Why did you drop back to half dosage in January of 2001.
AI thought I explained that, about the sleeping pattern that I had. I think that was the main factor of dropping back because I’d sleep, say, five till nine, then I’d sleep from – no. I’d wake up between five and nine, and sleep from nine till two, and wake up and go back to sleep from eight till five in the following morning. Those last couple of months was a drain on me. I’d just sleep and sleep and sleep.
HIS HONOUR
QI think what Mr Brebner is asking you, if you had been found not guilty before Christmas the year before and if these sexual allegations didn’t arise until the middle of February, what was the drain.
AThe thing is, that - no.
QWhat was the drain in January.
ANo, the drain was the whole court, for the last 22 months, your Honour. It wasn’t just January and February. It was the whole 22 months.
QI think Mr Brebner would then say: why did you not miss your medication in the whole of 2000.
AWell, that I was seeing Chris Branson on a regular basis. Started off fortnightly, then it went to monthly. And the reason I started off fortnightly was because we just started together and he wanted to do the medications and see which one can be and everything. Then I went to monthly and then that took, I think, the association, Mr Branson and myself, for that first 12 months, or even 20 months as far as I’m concerned, to me, was great. It was only the fact of the last - even though I say 20 months - was very tiring, and draining, on my account. Because half of it I was on home D bail I think and the other half I was on normal bail and the other half I was on me own bail, sort of thing. And I’m pretty sure that I came February 20 - if I’m wrong, tell me I’m wrong. We might have to get the transcripts out. I’m pretty sure Judge David wanted to see Ken O’Brien and Dr Chris Branson in March of 2001. And with the January and February of 2001, I’m pretty sure Judge David’s finding, I don’t know if it was in December - I’m sure it wasn’t before Christmas, I’m sure it was after Christmas. But I could be wrong. If it was before Christmas, why in February would he ask to see the doctors again in March? I’m pretty sure it was in March he made his finding of not guilty. In February I mean. I could be wrong.

The accused said that he had around 20 to 25 glasses and cans of beer at the Tanunda Hotel. By about 3.30 pm he was feeling pretty good but was not feeling affected by the alcohol at all. He said that he asked Ms Russell to put $50 in his account so he could access that money to keep on drinking and to spend the night at Tanunda.
The accused said that he started to have overwhelming thoughts about feeling bad about himself as he drove from Tanunda towards his home. He then started thinking about ’Lynne being better off without him. His thoughts were so overwhelming that he pulled over on the side of the road within viewing distance of the BP Service Station. The service station was on the left hand side of the road as he drove away from Tanunda towards his home. It was quite near where he was living. He used to go there and fill up with petrol. When he was there he was trying to fight the thoughts to get rid of them. They were overwhelming and he “started thinking to rob the service station, thoughts of coming in, robbing the service station, committing suicide in that way, of getting shot”.
The accused then said that his thoughts about getting himself shot by police started, not when he pulled up near the service station, but as he was just getting out of Gawler. The thoughts got stronger at the petrol station. He then said that they got stronger when he stopped before the petrol station. He then said he had an overwhelming desire to get police to shoot him from about the time he was pulled up just short of the service station. He could not control the thoughts, he could not stop them, they were just that overwhelming. He thought “everyone would be better off without me. I might as well get rid of myself. This is the best way to do it.” That was to do something that would attract the attention of the police. He agreed that “of course” he knew armed robbery was wrong, “very wrong”. He said “I think about the victims in the past and, if anything I could do to change that, but unfortunately, you can’t turn back time. I feel very, very bad and sad about what I’ve done in those situations”.
The accused agreed that there were occasions when he felt suicidal and had not committed offences. There were other occasions when he had felt suicidal and sometimes purchased implements for self-harm but was able to resist the suicidal thoughts. On two occasions he had ended up at the Royal Adelaide Hospital and on two other occasions at Glenside Hospital. He agreed that he resisted the suicidal thoughts because after driving around he had calmed down.
He agreed that he had filled up the tank of the ute with petrol at the BP Service Station. He was asked why he did that. He replied “I don’t know. I know it was low on petrol”. He was asked:
That wasn’t going to matter much if you were going to get shot, was it.
ANo.
QSo why did you fill it up.
AAgain, I don’t know. I went in, filled it up, drove the car in front of the shop and then got out and asked for the money.
QWhy did you bother to put petrol in the car at all. Why didn’t you just pull up, go in, and do what you had planned to do.
AI don’t know. Ask me a lot of questions about all the other ones, I just don’t know. The actions, I don’t know. Like I said, it was like a movie, everything went 100 miles an hour and everything was over within a minute. In my mind, everything was over within a minute and that’s including right up to the police. To me it was so quick.
QIs it a matter of you don’t know or is it a matter of you don’t want to tell us, Mr Bini.
ANo, it’s a matter of not knowing why it was done.
QWhat was the plan or idea that you had about getting shot. How were you proposing to bring that about.
ABy coming back to the petrol station.
QWhen did you first form that idea.
AThat was the arrangement of getting shot by the police because the police would be at the petrol station; go back to the petrol station, confront them with a rifle and get shot.
QWhen did you first decide on that strategy.
AI don’t know about deciding and I don’t know about strategy, it was just all in the head going around and around and around and ‘This is how it is going to be, you are going to rob the petrol station, you are going to go back, get shot by the police, everyone will be happy, Lynn will be happy, you will be happy, you won’t have to worry no more, Lynn won’t have to worry no more’ and that’s how it kept going over and over again.
He was also asked:
Is there any reason why you didn’t just wait at the service station for the police, take someone hostage perhaps.
ANo, well that’s - I don’t know, maybe - that’s definitely not in my character, no, it was frightful enough for the attendant as it was.
Further, he was asked:
Whilst you were driving towards Gawler, your overwhelming desire was to get shot by police, was it.
AYes.
QAnd there were some policeman behind you.
AYes.
QIs there any reason why you didn’t stop the car, get out and threaten them with the rifle at that stage.
ANo.
QThe reason you didn’t do that is that you were hoping these police weren’t interested in you and you would be able to get to Gawler and have a drink.
ANo, I was going to the petrol station.
QBut unfortunately for you the car broke down.
AYes.
QAt which stage you knew it was highly likely that the police would want to arrest you for the armed robbery.
AI didn’t even know they were following me for that.
QIsn’t it the case when the car broke down, you thought it was likely that the police would want to arrest you for the armed robbery and you decided to play out a charade of wanting to get shot by the police.
ANo.
The accused agreed that on each occasion in the past when he had purchased a knife he had suffered from overwhelming suicidal thoughts. He was asked:
On each occasion, either the thoughts have gone away or you have been able to resist the pressure of the thoughts. Is that the position.
AThe thoughts have died off, gone away.
QBefore you have got around to doing anything.
AYes.
He agreed that the robbery he committed in 1993 was committed because he wanted to go back to prison. It had nothing to do with suicide. He agreed that the fraudulent conversion offences he committed had nothing to do with suicide. He agreed they were motivated by his wish to maintain his lifestyle and to avoid spending his own money on alcohol. He said he was not feeling suicidal at the time of the armed robbery at Glenelg in 1993. He agreed that he had said at the hearing before Judge David that he was feeling suicidal on that occasion.
He was cross-examined about the robberies in December 1998. He said he had had a few Christmas drinks at his brother’s place immediately before the first robbery but was not drunk by the time he left. He could not remember if he was feeling happy when he left because that was a “blank” in his mind. He could not say whether he was feeling suicidal at the time he left. He agreed that in the investigation before Judge David he had said in evidence that he was fairly happy by the time he left his brother’s place and had said that he had rung his fiancée and said he was on his way home. He was then asked whether he was feeling fairly happy by the time he left his brother’s place or not and he replied “if I said that, then I was”. He gave the same response when some other evidence was put to him from the earlier investigation in which he denied feeling suicidal on leaving his brother’s place. The accused agreed that he did not try and engineer a confrontation with police to try and get shot after they caught up with him shortly after that robbery. He did not try and engineer a confrontation in any of the robberies in December 1998.
The accused agreed that he had been drinking heavily for a few days before the robbery at Munno Para on 20 February 2001. That had occurred at the party on Saturday, on Sunday and on Monday. He agreed that he had resumed drinking spirits not long before 20 February 2001. He had not told Dr Branson that.
The accused denied that Randy and Kim Pearce ever went to Court with him when the matter was listed in the earlier investigation concerning the robberies in December 1998. Randy Pearce knew that the charges were to be heard because he discussed them with him at his birthday party at his place about 30 October 2000. The accused denied that he ever came out of Court during the trial and said to Randy and Kim Pearce, by reference to evidence that he had just given, “good act, huh?”, or words to that effect. He denied saying to Mr Pearce “it’s all an act anyway” in referring to the mental incompetence hearing.
The accused confirmed that he found out that someone was making allegations that he had sexually molested two children two days prior to the attendance at Court on the same day as the incident at the BP Service Station on 20 February 2001. He said it was on the Sunday afternoon he found out and then Monday morning was the second phone call. He said he did not tell Dr Branson that he found out about those allegations in late January 2001. He then said he could have said to Dr Branson that those events occurred in late January.
’Lynne Russell
Ms Russell first gave evidence on 11 December 2002. She said she had known the accused for seven or eight years and has been in a continuing relationship with him. She gave evidence in the accused’s previous trial. During that trial and in February 2001 they lived together at her home address at 9 Springbank Road, Blakeview.
She said that on the Saturday night prior to Tuesday 20 February 2001 they had had a party. There was a small group including Randy and Kim Pearce. She could not remember what the party was for but they sat around and had a barbecue. The Pearces asked her if she could lend them some money and she refused. She thought that after the party the accused and others went back to Randy Pearce’s house to continue the party there. She didn’t go. She said that the accused returned to her house on the Sunday morning. Before he returned she received a telephone call from Randy Pearce saying that he believed the accused had molested his (Pearce’s) children. They (Randy and Kim Pearce) asked her to go to their place and talk to them about it which she did. When she came back the accused had already arrived home and she told him that the Pearces were accusing him of molesting the girls. The accused was really angry and really upset. He went very blank and started walking around as if he just did not know what to do and then he left. He had got the same blank look before. He seemed to withdraw into himself and he then got into the car and said “I’m going, I just need to go for a drive and I’ll be back”. But he did not come back and the next time Ms Russell saw him was at the police station on Tuesday 20 February 2001. She did not think she saw him on the Monday after the Saturday party nor on the Tuesday (20 February 2001). She saw him on the Tuesday but it was at the police station.
She was asked to describe what she did on the day of 20 February 2001. She answered:
What I did. I got up. I had a shower, coffee, cigarettes, wondering where Peter was, did a little bit of housework, wondering - it was all going through my mind where Peter was, and I was on my own, and that’s just about all I did, I didn’t go out, and then the police - then Peter called me on the mobile.
QYes, what did he say.
AHe asked me to put some money into his account because he was at the Tanunda Hotel and he needed a little bit of extra money, which I said no, that I wanted him to come home and we would get help from Chris to alleviate - to help him.
QWhat did he say to that.
AAfter - well, he said he didn’t want to come home and he was still - he was worthless to me and he was no good to me and all that kind of stuff, that he just didn’t want to come home, but I pleaded with him to get in the car and come home and I was able to do that and then he hung up and I believed he was on his way home.
QWhat do you next recall happening.
APolice officers knocking on the door.
Ms Russell then described the visit she had from police officers after her telephone conversation with the accused. They asked her about the registered owner of the ute. She told them that the accused was on his way home and that when he gets into one of his moods he wants to destroy himself. She could hear police radios working and she heard the police officers say that “they’ve got Peter”. She said that at that point she said to the officers “all he wants you to do is shoot him, so don’t do that, just don’t shoot him”. She saw the police officer to whom she told that talk to the radio but she did not know what was said. She later went to the police station because the accused had asked her to sit in on the interview. The police officers were at her house for about 10 or 15 minutes.
She said that sometimes Mr Pearce would go to court at the earlier trial. She said she recalled an occasion when Mr Pearce wanted to stop being a guarantor but she did not think she could actually say which day that was. She recalled an occasion when Mr Hill wanted to stop being a guarantor. She was present when Mr Hill indicated that.
Under cross-examination Ms Russell said that she could hear it all happening on the police radios when they were at her home, talking between the officers, that they had apprehended the accused. She heard the words “we have him”. After she heard that she explained to the police officers that the accused was feeling very low and upset and that he just wanted them to shoot him. She heard the police officers say that “the wife has told us that he wants us to shoot him”. It is not clear from her evidence whether that was said by one police officer to another officer at the home, or whether it was said into a police radio. However, her evidence was that that was said after they had told her that they had caught the accused.
Following Ms Russell’s evidence Mr Mancini told me that as part of the defence case he wished to make a statement orally or in writing, or submit an affidavit sworn by himself. He sought to rely on ss.45B and 59J of the Evidence Act. He proposed that his oral or written statement or affidavit would be evidence in the trial. I heard argument on that submission notwithstanding that no written statement or affidavit was then in existence. Mr Mancini submitted that the affidavit he proposed to submit made him a witness but it did not compromise his continuing to act as counsel. Furthermore, it would not compromise his position if he were to be allowed to make a statement “as an officer of the court and to invite your Honour to accept it”. He submitted that if he had to give evidence he could not continue as counsel and would have to withdraw. That would involve unreasonable expense and delay.
Mr Mancini submitted that the matters upon which he sought to give “evidence” were not genuinely in dispute. He submitted that there was no proper basis for cross-examining him on his proposed statement or affidavit, and that there was no proper basis for suggesting that his evidence could be impugned.
It transpired that the matter about which Mr Mancini proposed to make a statement or submit an affidavit related to Ms Russell’s evidence that she was not in the precincts of the court on the morning of 20 February 2001, the morning of the armed robbery at Munno Para. Mr Mancini submitted that Ms Russell did not have a recollection of events of that morning and ultimately did not come up to proof about that matter.
On 19 December 2002 I ruled that I would not hear, as evidence, an oral statement by Mr Mancini from the bar table as an officer of the court, and I would not receive, if it was reduced to writing in some form, that evidence pursuant to the provisions of the Evidence Act upon which Mr Mancini had relied.
On 20 January 2003 the trial resumed with different counsel representing the accused.
Mr Mancini gave evidence that Ms Russell was in the precincts of the court on the morning of 20 February 2001 immediately before and immediately after a directions hearing before Judge David. He said he had an actual memory of that, and he had an actual memory of discussions taking place between the accused, Mark Hill and Ros Hill. The discussion related to whether or not Ros Hill would continue as a guarantor for the accused.
Under cross-examination Mr Mancini said that he did not have a particular recollection as to whether Ms Russell was at court on the day the verdict was announced “but it strikes me as being likely once again because of her personal interest in the outcome of the proceedings”. He said that he did not have any specific recollection of Ms Russell attending at court on various occasions after the verdict was announced and before 20 February 2001. He said there were attendances leading up to the hearing on 20 February 2001. He said he thought there was an attendance prior to 20 February 2001 when Mr Pearce was in attendance. Mr Pearce was a guarantor who wanted to be relieved of his obligations as a guarantor. It was a discrete hearing and Mr Mancini could not say whether that was in 2000 or 2001. He had no particular recollection as to whether Ms Russell was there on that occasion “but given the nature of the hearing, she probably would have”. He confirmed, however, that he was “certain” about Ms Russell being in attendance on the morning of 20 February 2001. He was not absolutely certain of the topics that were discussed that morning but he was “certain enough to be confident enough to tell you that his recollection was” that Ms Russell was talking to the Hills about “being guarantors or some difficulties with Mr Bini”.
Mr Mancini said that the matters that Mr Hill wanted to discuss were allegations of sexual assault by the accused involving their daughter and Ms Hill’s desire to withdraw as a guarantor. Mr Mancini thought that the question of guarantees may have been discussed earlier than 20 February 2001 and therefore there was the potential for Ms Russell to step in as a guarantor. Mr Mancini said he had fore-knowledge (prior to 20 February 2001) of the application to remove Ms Hill’s guarantee.
Following Mr Mancini’s evidence defence counsel successfully applied to recall Ms Russell.
Ms Russell said that since giving her evidence on 11 December 2002 she had turned her mind to the morning of 20 February 2001. She said she was very confused when she gave evidence previously and after leaving court she went home to her father’s place and was talking to him about what she had said. She said that from little things that he said and remembered she recalled that she had made some mistakes about what she had said in her earlier evidence. She said that she now had a genuine recollection of something that happened on the morning of 20 February 2001. That was a genuine recollection rather than being one due to what other people had told her. She said her father still feels it was a different day but she had actually now recalled the whole day.
The cause of her confusion was that when she gave her evidence earlier she “brought the court hearing ... Judge David and this court together in that time frame”. “I don’t know why I did that, it just happened for me while I was sitting here”. She mentioned stress and confusion. She said: “I brought Judge David’s case up into this one, because my mind was all confused and scattered”.
She said that on the morning of 20 February 2001 she went to court with the accused for a directions hearing. She recalled that Mark and Ros Hill were at court. Randy and Kym Pearce were also there. Her father was there as well. She said the Pearces were at court because Randy Pearce was a guarantor and he was going to revoke that. After court they went home. Her father went away for a holiday and then the accused went for a drive to Tanunda. The police arrived at her home later in the afternoon.

Based on these findings the accused has either been untruthful about these matters or he was confused as to them when he described these events to certain of the psychiatrists who saw him after he saw Dr Branson on 14 August 2001, and in his evidence. If he was confused then Ms Russell must also be confused because she has described the same sequence of events insofar as the allegations concerning the Pearce children are concerned. When she first gave evidence she described the accused as being so upset about the Pearce allegations that he left home on Sunday 18 February 2001 and did not return before the alleged armed robbery on Tuesday 20 February 2001. She said she did not hear from him again until he was in custody at the Elizabeth Police Station on that afternoon.
Another explanation is that the accused untruthfully related these events and their timing in the way he did because he thought that putting them in that way may be more convincing in explaining his conduct on 20 February 2001 and would assist in establishing, not only that he was suffering from a mental illness at the time of the alleged armed robbery, but also that as a consequence of it he did not know that his conduct was wrong or that he was unable to control it. Furthermore, the accused and Ms Russell may have discussed the events as described by the accused in his evidence so that Ms Russell could give untruthful evidence to accord with that of the accused.
Mr and Mrs Pearce also gave evidence which was to the effect that during the investigation before Judge David in October 2000 the accused said things which could be said to have been admissions by the accused that he had falsified his evidence before Judge David as to his mental incompetence to commit those alleged offences. I am satisfied that the accused said to Mr and Mrs Pearce that which they allege he said. I was particularly impressed with Mrs Pearce whom I consider to be a truthful and reliable witness as to this matter. However, I give no weight to this finding in my consideration of whether the accused was mentally incompetent to commit the alleged armed robbery on 20 February 2001. That is because of the evidence of the medical witnesses who were asked to comment on this issue.
In his evidence the accused said that in January 2001 until 20 February 2001 he was taking only one-half of his prescribed medication. He did not tell that to any of the medical witnesses who have examined him since 20 February 2001. Importantly, he did not tell Dr Branson that when he saw Dr Branson on 23 January 2001 before the alleged armed robbery and he did not tell Dr Branson that when he first saw him after it. He had complained to Dr Branson in December 2000 that some of the medication was causing problems for him and Dr Branson had reduced his prescribed dosage of medication. Dr Branson had seen no adverse affects from that reduction.
In November and December 2000 Doctors Branson, White and O’Brien examined the accused for the purpose of the matters that were then current before Judge David. These examinations occurred after Judge David’s finding that the accused was mentally incompetent to commit the armed robberies in December 1998. The accused’s trial before Judge David had taken place in October 2001 when the accused had been consulting with Dr Branson for nearly two and a half years. The accused’s evidence was that he had no suicidal thoughts in 1999 after he had been put on medication by Dr Branson at the end of May of that year. He said that in 2000 the situation was the same, in that he had no suicidal thoughts during that year. He said he had continued his medication into 2001 and it was in January 2001 through to February 2001 that he was only taking half of his medication.
Dr Branson saw the accused on three occasions in November 2000 and on 8 December 2000. He thought the accused was considerably more stable then than at most times in the past. He reported that the accused had improved his situation dramatically since seeking psychiatric assistance for his problems. There had been no recurrence of the out of control behaviour that resulted in the offences of December 1998. He reported that the accused appeared to have benefited considerably from both pharmacological and psychotherapeutic treatment. He thought it “should be possible to continue to assist him in gaining better control over his thoughts, feelings and behaviour, to the extent that offending behaviour in the future is much less likely”.
Dr White was even more positive. He reported after seeing the accused on 7 December 2000 that the accused reported no problems with depressive symptoms, anxiety symptoms or aggression. His “‘self harm’ subscale was also non-significant”. Dr White reported that “Overall, Mr Bini’s condition appeared remarkably stable and balanced, and not indicative of an axis I or II DSM-IV diagnosis”. Dr White was optimistic that, provided the accused maintained his then current therapeutic regime, his risk of re-offending would be greatly reduced.
The accused told Dr O’Brien on 27 December 2000 that he was taking his mood-stabilizing and his anti-depressant medication. Dr O’Brien noted in his report that in Dr White’s most recent report, "psychological testing administered tends to support Dr Branson’s clinical view that Mr Bini has a more positive outlook and depressive, anxiety and aggressive symptoms are no longer prominent”.
The accused’s evidence as to why he reduced his own medication by half in January and February 2001 was totally unconvincing. He referred to not sleeping leading up to Judge David’s verdict which he said in evidence and to Dr Branson occurred on 20 February 2001. It in fact happened well before that, on 23 November 2000. He then referred to the stress of the trial. If there was stress occasioned by the trial it would have more likely occurred during the lead up to the trial and during it, not after it. Up to the end of 2000 the accused was taking his medication as prescribed with the effect that he had suffered no suicidal thoughts for some time and was considerably more stable than in the past. Not only that, the accused said that he considered the ultimate verdict was a favourable one. Whilst his evidence as to why he ceased taking half his medication in January/February 2001 was utterly unconvincing, there was no explanation at all to why he did not inform Dr Branson on 23 January 2001 or on 14 August 2001 that he had reduced his medication to the extent that he claimed he had during the trial.
I am satisfied that the accused was, as at 20 February 2001, taking his medication as prescribed by Dr Branson. I am so satisfied notwithstanding Mr Pearce’s evidence that the accused was not taking his medication, at least was not at the time Mr Pearce sought to withdraw as his guarantor. If Mr Pearce was told that by the accused, I think it more likely that the accused was referring either to a reduced prescribed medication or to an occasional and irregular missed dose. Dr Branson’s evidence was that the missing of a dose or two would not have diminished the therapeutic effect of the prescribed drugs.
As to the accused’s use, or abuse, of alcohol in the several weeks preceding 20 February 2001, I am satisfied that he had resumed the drinking of spirits and that he had in that time consumed a significant amount of spirits. I am satisfied that during that time he also drank considerable quantities of beer in addition to spirits. I am satisfied that the accused had been a significant user and abuser of alcohol over many years. Accordingly, he had a significant tolerance of alcohol and could consume vast quantities of it without being much affected by it and without apparently being affected by it.
As to the events in the week preceding 20 February 2001 I have little confidence in relying on the evidence of the accused and Ms Russell. I am satisfied that Mr Pearce was granted leave by the court to withdraw as one of the accused’s guarantors on Wednesday 14 February 2001. I am satisfied that either on that day or the day following the accused was aware both of Mr Pearce’s withdrawal as a guarantor and part of the reasons for it. That was that Mr Pearce was accusing the accused of sexually molesting his daughter or daughters.
As I have already indicated it was the accused’s and Ms Russell’s evidence that there was then a barbecue on the night of Saturday 17 February 2001 at which Mr and Mrs Pearce were present. The accused’s evidence was that he learnt of the allegations of sexual abuse that the Pearces were making on Sunday 18 February 2001 and that he slept most of Monday 19 February 2001. He attended before Judge David on the morning of Tuesday 20 February 2001. Mr and Mrs Hills were present as was Ms Russell. He then, or shortly before, learnt of further allegations of sexual abuse made by the Hills. That was resolved at least to some extent because Mrs Hills did not withdraw as a guarantor. The accused’s evidence was, and his account to some of the medical witnesses was, that the events before Judge David did not make any impression on him because he was so outraged by the allegations of his sexual abuse of children. He said that what happened went in one ear and out the other. He said that after the hearing he and Ms Russell went home. He said that he told Ms Russell that he was going out for a drive to clear his head and ignored her pleas to stay home and to ring Chris (Branson). He then drove to Tanunda and to an hotel there.
When she first gave evidence Ms Russell said that the accused left home on Sunday morning, 18 February 2001 after hearing of the allegations made by the Pearces. She did not see him again until after the alleged armed robbery on the afternoon of 20 February 2001, although she spoke to him on the telephone when he was at the Tanunda Hotel.
When she next gave evidence she said that she had a clear recollection of the events over those days, which recollection was different from her earlier evidence. She said that the accused went to Spalding on Sunday 18 February 2001, he slept for most of the Monday 19 February 2001 and they both went to court on the morning of 20 February 2001.
Mr Mancini’s evidence was that he positively recalled Ms Russell attending at court on the morning of 20 February 2001. He could not, however, be so positive about Ms Russell attending at court at other times. It transpired later that Mr Pearce said in evidence that Mr Mancini was present on Wednesday 14 February 2001 when he was granted leave to withdraw as a guarantor. That was when he told the court that he alleged the accused had sexually molested a member of his family. Ms Russell said in her evidence that she thought she was there when Mr Pearce sought to withdraw as guarantor, although she said in her later evidence that Mr Pearce was there on the morning of 20 February 2001.
In light of the conflicting evidence on this issue I cannot be satisfied as to whether or not Ms Russell was present at court on the morning of 20 February 2001. I cannot be satisfied one way or another on that matter.
One explanation, however, for Ms Russell’s later evidence is that she had given her earlier evidence to the best of her recollection but had been convinced by the accused that her earlier recollection was incorrect. Alternatively, she had been asked by the accused to give untruthful evidence so that it accorded better with his own evidence.
Because of the unsatisfactory state of this evidence I am unable to find whether or not Ms Russell saw the accused after the court hearing on the morning of 20 February 2001. Whatever the situation may be as to that, I think it improbable that Ms Russell tried to talk the accused into seeing Dr Branson that morning. That is because the accused found out about the Pearce allegations about three weeks prior to 20 February 2001 rather than three days before as attested to by the accused and Ms Russell. Furthermore, the accused was due to see Dr Branson anyway the very next day.
I am satisfied that the accused drove to Tanunda and spent some time at an hotel there drinking a considerable quantity of beer. I am satisfied that during the time there, by a combination of conversation with other patrons and the alcohol he drank, he became happy. I am satisfied that he telephoned Ms Russell asking her to put some money into his bank account so that he could use it to continue drinking. I am satisfied that when Ms Russell refused he decided to leave the hotel and drive towards his home. I am not satisfied that Ms Russell asked him to come home to go and see Dr Branson, but I am satisfied that she did ask him to come home.
The BP Service Station at Munno Para is on the left-hand side of the highway as one drives from Gawler to Adelaide. Blakeview, the suburb in which the accused and Ms Russell were living, is also on the left-hand side of the highway not far past the BP Service Station. That service station was known to the accused. He had used it to obtain petrol from time to time.
I am satisfied that the accused stopped his vehicle some short distance before he reached the service station. I shall return later to consider his thoughts as he sat in his car.
The accused stopped his vehicle at the service station and filled it with petrol at a pump away from the office of the service station. He then committed the acts which constituted an armed robbery as described by the witnesses whose statements I read and whose evidence I heard when investigating whether the objective elements of the alleged armed robbery were established beyond reasonable doubt.
The accused’s conduct at the service station included filling up his ute with petrol at a pump away from the office of the service station. At the time he did that he was wearing a beanie. It was a hot day. He drove from the pump to the front of the office of the service station. He pulled down the beanie to make it appear as a balaclava with two eye holes that he had previously formed in the material. He went into the office holding a rifle, pointed it at the attendant there and demanded money. The till was given to him. He left the office quickly, got into his ute and drove quickly away from the scene.
As to what happened after that there is evidence from the accused and from a number of police officers.
The accused said that after he left the BP Service Station he drove off the main road at the first turn to his left and stopped his vehicle. He was just around the corner from his house. After a while there he decided that his best way of confronting police was to drive back to the service station where he assumed police would then be. He would confront them and hopefully be shot. He said that he drove off on his way to return to the service station. He said he was not too sure about where the road went. He said that he saw a police vehicle following him while he was on this journey. He did not stop, however, until his “car blew” causing him to stop. He got out of his car. When the police stopped and drew their weapons he leant inside the cabin of the utility, got his rifle and pointed it at the police. There was a confrontation and it was only when a police officer said to him that they had seen ’Lynne and she had told them why he was doing this that he realised that he would not be shot and he surrendered.
Evidence from police officers was to the effect that a police car followed the accused for about 10 kilometres until the accused’s car stopped at an intersection. The accused’s vehicle reached speeds of 80 kpm. The police dropped back behind him to a safe distance. They described the accused as standing beside the driver’s side door and when they drew their weapons he retrieved his rifle from his vehicle after a short while.
Constable Conway was the police officer who spoke to the accused. The effect of his evidence accorded with some of the evidence of the accused and some of the accounts given by the accused to the medical witnesses. However, Constable Conway said that he did not at any time prior to the accused’s arrest know that other police officers had visited Ms Russell’s house at Blakeview and spoken to her. At no time did he say words to the effect, “we have seen ’Lynne and she has told us why you have done this.” He did not say that because he did not know at that time who the accused was and had not heard that police had visited Ms Russell’s house and spoken to her.
I am satisfied that at no time did anyone at the scene of the accused’s arrest say to him, prior to his arrest, that police had seen ’Lynne and she had told them why he had done what he had done. I am satisfied that Constable Conway was the only police officer at the scene who spoke to the accused, with the exception of the two police officers who were in the car that followed his vehicle for ten kilometres. Those officers did not, however, say anything to the accused other than “drop your weapon” or words to that effect.
I am convinced that Constable Conway is an accurate and reliable witness as to the events at the confrontation leading up to the accused’s arrest. He impressed me as a witness of honesty and reliability and his evidence was aided by the use of a contemporaneous record of what was said and done.
I acknowledge that there are some entries in the communications log (which was not tendered) which might indicate that some police officers knew from Ms Russell before the accused’s arrest that the accused wanted police to shoot him. I am satisfied that the accused’s evidence that police said to him that they had seen ’Lynne and been told why he was doing this is inaccurate or false. The running sheet (which was tendered) indicates that such information was recorded in the log subsequent to the accused’s arrest. In addition, Ms Russell’s evidence was to the effect that she told police officers that the accused wanted to be shot after she learnt that the police “had him”. I do not particularly rely on this evidence as I consider Ms Russell’s evidence to be unreliable in that regard, as well as in other respects.
The accused’s evidence on this topic was similar to that which he told some medical witnesses on this same topic. Dr Begg, in particular, considered it an important feature of the history that was given to him. In his opinion it supported to some extent his view that the accused was in something of a dissociative state from some time before he reached the BP Service Station until police commented that they had seen ’Lynne.
The accused may have given the evidence that he did and told the medical witness that which he did because such a statement was made to him by police officers after his arrest and he was confused about when it was said. Alternatively, he was told by Ms Russell afterwards that she had told them that, and he was confused. As a further alternative, he untruthfully said that the police said that to him because he thought it might make his case more convincing and compelling.
I now deal with the accused’s evidence as to his thoughts as he was driving from Tanunda to his home. This part of the trial is a very important part of the investigation into the accused’s mental competence to commit the alleged offence of armed robbery. All the medical witnesses have expressed their opinions based on what the accused had described to them as to his thoughts during the time leading up to, during and after the events constituting the alleged armed robbery. Their opinions have been formed and expressed largely based on the accused’s description of his thoughts.
His thoughts, particularly during the time immediately prior to the events alleged to constitute the armed robbery, are important, not only as to whether I am satisfied that he was at that time suffering from a mental illness, but also as to whether, as a consequence of any mental illness, he did not know that the conduct was wrong or he was unable to control it.

As to what the accused’s thoughts were at this vital time, I have to rely largely on his own evidence. All the medical evidence was to the effect that the accused had for many years prior to 20 February 2001 suffered from a borderline personality disorder. From time to time, particularly when under stress, this disorder had produced severe and bizarre symptoms. In a general way, I am satisfied about much of the history of the accused’s past, including his past psychiatric history, his admissions to hospital and what he told the medical witnesses upon which their various diagnoses of borderline personality disorder were based. I am satisfied, for example, that there were occasions when the accused was overwhelmed by thoughts which were consistent with a diagnosis of borderline personality disorder, even a severe or florid one from time to time. I am also satisfied that there were occasions when the accused was overwhelmed by thoughts of poor self-esteem, uselessness, negative thoughts, or feeling bad about himself leading to a wish to put an end to his life by some means or another. On his own evidence, however, there were occasions when he was in situations of crisis where he neither committed offences as a means of relieving his feelings during those times nor, if he did, did he then provoke a confrontation with police by which he intended to be shot.
I am satisfied that events such as I have just described occurred during the accused’s life when he was taking no medication for his condition.
Accordingly, there were occasions in the past that the accused described when he was overwhelmed by thoughts consistent with his personality disorder which did not result in either him offending, or him provoking a confrontation with police. These occasions occurred when he was not medicated at all.
Another matter that I need to take into account when considering the accused’s evidence about what was going through his mind before, during and after the alleged armed robbery on 20 February 2001 is that there were a number of aspects of his evidence about which I have considerable doubts as to whether he was telling the truth. Apart from a couple of occasions during his evidence when he got upset with the Crown Prosecutor in cross-examination, it seemed to me that the accused gave his evidence at the trial in a calm, careful and rational way. That was not inconsistent with the evidence of one of the medical witnesses who said that the accused may appear quite normal and rational. He appeared very calm and very confident to the attendant at the BP Service Station on the afternoon of the alleged armed robbery. I must be careful not too readily to draw an adverse judgment as to the accused’s credibility in light of the medical witnesses’ opinions as to his personality disorder. Some of the medical witnesses described him as having a severe borderline personality disorder. Others described him as having a borderline personality disorder which manifests itself in a severe form in situations of stress. I do not consider there is any difference in these descriptions. The accused did not appear to me to be severely stressed whilst giving his evidence. On the other hand, I did not think that he gave his evidence in a bland or unemotional way, in the manner that was referred to by Dr Begg when he took a history from the accused on 18 October 2002. Notwithstanding his disorder I am satisfied that the accused was deliberately untruthful in some of his evidence at trial and in the history he gave to some of the medical witnesses. I return to those matters later in these reasons. They are important, however, to my consideration of the accused’s evidence as to what his thoughts were before, during and after the alleged armed robbery.
Whilst it is difficult, for the above reasons, to be confident about making findings as to what was going through the accused’s mind as he drove home from the hotel at Tanunda, I am satisfied that the circumstances were such as to justify a finding that he did have thoughts about how worthless he was and how those in his life would be better off without him. Although I am not satisfied that the first allegations of sexual molestation were made as close in time to 20 February 2001 as both the accused and Ms Russell asserted, there seems to be no doubt that the allegations were made and were made by both of the accused’s guarantors for bail. I am satisfied, therefore, that these allegations were in his thoughts but I am not satisfied that he was overwhelmed by thoughts of them. Furthermore, I am satisfied that it would have been apparent to the accused on the morning of 20 February 2001 that one possibility was that Judge David might order that he be detained at James Nash House rather than being released on conditions recommended by the various medical experts (despite his assertions at various times that it all went in one ear and out the other). There had also been the telephone conversation, which I find occurred, between the accused and Ms Russell wherein she refused to fund the accused’s further drinking.
In these circumstances I am satisfied that the accused’s mind was in stress and in stress of the type which is consistent with his borderline personality disorder as diagnosed by all medical witnesses.
I am not convinced, however, that his thoughts at that time had advanced to the stage of focussing on an intention to provoke a confrontation with police and get shot. I am not satisfied that that was a principal focus of the accused at any time before the alleged armed robbery. I am satisfied that he thought in terms of doing an armed robbery to relieve his stress and to relieve stress on those close to him, but I am not satisfied that there was anything in the nature of a formulated plan to commit the armed robbery to provoke a confrontation with police and get shot. That only came later when his “car blew” and police confronted him with their guns drawn.
I am satisfied, however, that at the time of the events that constituted the alleged armed robbery at the BP Service Station at Munno Para on 20 February 2001, the accused was suffering a mental illness as that term is used in Part 8A of the Act. I make that finding as a matter of fact on the balance of probabilities.
(This finding is not made on the basis that I have found that the accused was suffering a “borderline personality disorder” or a “severe borderline personality disorder”. It is not necessary for me, as a trier of fact, to find that any label is an appropriate label before I can find, as a matter of law and of fact, that the accused was suffering a mental illness at the time of the conduct which is alleged to constitute an armed robbery. Dr Branson’s evidence that a less severe form of borderline personality disorder than that suffered by the accused may not be a pathological infirmity of the mind illustrates this. It is a matter for me to consider whether, as a matter of fact, he was suffering a mental illness at the relevant time based upon the proper construction, as a matter of law, of “mental illness” as it is used in Part 8A of the Act. Labels may be a convenient means by which diagnoses are made and evidence is given in investigations such as this, but they do not determine issues of law and fact.)
I have little doubt that the accused knew that the conduct which constituted the alleged armed robbery was wrong. His evidence that he did not think it was wrong was unconvincing. The circumstances were such, and there was other evidence of the accused, that satisfies me that he knew that the conduct was wrong in the sense that that word is used in s.269C(b) of the Act. The accused had previously committed robberies, even alleged armed robberies. He had just been “tried” for three alleged armed robberies. No-one suggested that he did not know that those armed robberies (that were alleged to have been committed in December 1998) were wrong. The accused’s evidence was that when fighting with his thoughts to rob the BP Service Station on 20 February 2001 he said to himself “This is wrong, I’ll go home”. He also said that he knew armed robbery was wrong, “very wrong”. I am convinced that the accused knew that the conduct which constituted the armed robbery on 20 February 2001 was wrong in the relevant way. Dr Branson’s opinion was that he did not, but in fairness to Dr Branson his opinion was based on the history he obtained from the accused, not on the evidence I have heard both from the accused and from others.
Accordingly, I am not satisfied that it has been established, on the balance of probabilities, that as a consequence of the mental illness that the accused was suffering at the time of the conduct alleged to give rise to the armed robbery he did not know that the conduct was wrong.
There was considerable opinion evidence from the expert medical witnesses as to whether, in consequence of any mental illness suffered by the accused at the time of the alleged armed robbery, he was unable to control the conduct which constituted the alleged armed robbery.
I was impressed with all the expert medical witnesses who gave evidence during the investigation. They all acknowledge the difficulty in construing and applying concepts of control of conduct to any case, and in particular to this case. I have been assisted by the evidence of each of them in considering my decision on this question.
There are a number of important considerations that I have had to regard to in considering this question. They include the following facts and circumstances:
·The accused had suffered crises in the past as a result of his borderline personality disorder which had not resulted in him committing offences, or if they did, he did not provoke a confrontation with police in order to be killed.
·The accused had no suicidal thoughts in the years leading up to 20 February 2001 after he had commenced medication and continued taking it for his condition.
·I am satisfied that he did not take less than his prescribed medication in January 2001 up to 20 February 2001.
·I am satisfied that the accused had increased his alcohol intake (including his intake of spirits) in the weeks and months leading up to 20 February 2001 and he had a significant amount of alcohol at the Tanunda Hotel on 20 February 2001.
·The particular circumstances of the alleged armed robbery itself including, the use of a beanie cum balaclava, a rifle, the fact that he filled up his utility with petrol prior to the conduct constituting the alleged armed robbery, and his apparent calmness and confidence during the armed robbery.
·That he was driving away from the scene and was followed by police for a considerable distance at a relatively high speed. He did not stop his vehicle to confront police when he saw a police vehicle following him. I do not believe the accused’s evidence that he thought it was “great, I’m going to get shot” when he saw police following him after the alleged armed robbery. It was only when his vehicle could go no further that he stopped and he then confronted the police by using a rifle which he took from the car after he had alighted from it.
·His explanations as to why he filled up his ute and why he did not stop his vehicle when he saw police following him were lame, contrived and unconvincing.
·My satisfaction that police officers did not say to him just prior to his surrendering that they had spoken to ’Lynne and she had told them why he had done it.
·My satisfaction that what the accused told psychiatrists and gave evidence about police saying that he had seen ’Lynne and she had told them why he was doing it was a conscious, untruthful embellishment of his account of the confrontation because he considered that such an embellishment would assist a favourable finding in this case.
·My satisfaction that the accused’s evidence about reducing his medication by half in January to 20 February 2001 was a conscious untruth and said because he thought it might assist his case.
·My satisfaction that both the accused and Ms Russell consciously and untruthfully gave evidence that the sexual abuse allegations were made after the barbecue at their home on the Saturday night immediately before 20 February 2001. I am satisfied that they did that because they thought that by putting the sexual abuse allegations closer to 20 February 2001 that would give added weight to the accused’s case that he was mentally incompetent to commit the conduct that constituted the alleged armed robbery on 20 February 2001. I am satisfied that they collaborated to give this untruthful evidence.
Notwithstanding the matters I have just listed I am, as I have already said, satisfied that the accused was suffering from a mental illness at the time of his conduct on 20 February 2001. However, I am not satisfied that, in consequence of that mental illness, he was unable to control the conduct which constituted the alleged armed robbery in the way the law requires me to consider and decide this issue.
I am satisfied that the accused did “debate” whether or not to commit the conduct constituting the armed robbery when he was sitting in his stationary car with his thoughts. His evidence was that as he was sitting there the thoughts were coming quickly and overwhelmingly. He was fighting with them saying - “‘This is wrong, I’ll go home, I’ll go home’ but the robbing the petrol station and ‘you’re no good’ again came into it and ‘You’re better off dead’ overruled that completely”. I am not satisfied that those latter thoughts did overrule the thoughts about going home completely. I am convinced that the accused, as he sat in his ute “debating” whether to commit an armed robbery, had a choice to do so and knew he had a choice to do so. I am satisfied that he knew he had the capacity to choose and to desist from committing the conduct constituting the armed robbery. He consciously elected, however, not to desist and he chose to do the conduct that constituted the armed robbery. Dr Branson had been treating him for some time and had encouraged him to do other than self-destructive things if he felt distressed by his thoughts. I, like Dr O’Brien, consider that the issue of the accused’s alcohol consumption before and on 20 February 2001 is important. I am convinced that his alcohol consumption contributed to the accused’s choice not to drive home but to commit the robbery. Even if I am wrong in this, the accused’s alcohol consumption together with all the other factors I have mentioned, would have resulted in my not being satisfied that he was unable to control his conduct.
Accordingly, I am not satisfied that it has been established, on the balance of probabilities, that as a consequence of the mental illness that the accused was suffering at the time of the conduct alleged to give rise to the armed robbery he was unable to control that conduct.
Accordingly, my decision is that it has not been established, on the balance of probabilities, that the accused was at the time of the alleged armed robbery mentally incompetent to commit it.
I record a finding that the presumption of mental competence has not been displaced. I shall proceed with the trial in the normal way.

[2003] SADC 35

1 April 2003