R v Bini No. DCCRM-99-361

R v Peter BINI
[2000] SADC 137

His Honour Judge David
Criminal Jurisdiction

The defendant is charged with the following offences:-
“First Count
Statement of Offence
Armed Robbery. (Section 158(a) of the Criminal Law Consolidation Act, 1935).

Particulars of Offence
Peter Bini on the 23rd December, 1998 at Rosewater, being armed with an offensive weapon, namely a knife, robbed Theodore Joseph Ellenbork of money in the amount of about $1,100.

Second Count
Statement of Offence
Armed Robbery. (Ibid).
Particulars of Offence
......... Peter Bini on the 30th December, 1998 at Murray Bridge, being armed with an offensive weapon, namely a knife, robbed Karen Lee Nixon of money in the amount of about $400.

Third Count
Statement of Offence
Armed Robbery. (Ibid).
Particulars of Offence
......... Peter Bini on the 30th December, 1998 at Fullarton, being armed with an offensive weapon, namely a knife, robbed Alastair Ian Wyndham Miller of money in the amount of about $750.

Fourth Count

Statement of Offence
......... Assault with Intent to Rob Whilst Armed. (Section 158(a) of the Criminal Law Consolidation Act, 1935).

Particulars of Offence
......... Peter Bini on the 31st December, 1998 at Rosewater, being armed with an offensive weapon namely a knife, assaulted Robert William Winton, with intent to rob him.”

On arraignment he pleaded not guilty to each count and elected for trial by Judge alone. Furthermore pursuant to Section 269E(1)(a) of the Criminal Law Consolidation Act he has raised the defence of mental incompetence. The Prosecution agreed that it was properly raised. Both counsel agreed that the proper procedure would be to proceed first with the trial of the objective elements of the offences and if proved I would then turn to the question of a trial of the defendant’s mental competence.
On the trial of the objective elements of the offences the Prosecution tendered a number of declarations and no submissions were made by the defence in relation to that issue. Consequently on reading that material I found that the objective elements of the four charges have been proved beyond reasonable doubt. I therefore record a finding to that effect as required by Section 269N(A)(1) and (2) of the Criminal Law Consolidation Act.
I then heard evidence and representations on the question of the defendant’s mental fitness to stand trial. I now turn to that question.

Trial of Defendant’s Mental Fitness to Stand Trial

I remind myself that a person’s mental competence to commit an offence is to be presumed and the defendant must establish on the balance of probabilities that at the time of the offence he was mentally incompetent to commit the offence. I remind myself of Section 269C of the Criminal Law Consolidation Act which I set out in full:-
“A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment-
(a) does not know the nature and quality of the conduct; or

(b) does not know that the conduct is wrong; or
(c) is unable to control the conduct.”

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 Defendant’s case on Mental Competence

The defendant gave evidence and called three witnesses namely Jocelynne Anne Russell, who was and is in a relationship with the defendant, Dr Jack White a psychologist and Dr Christopher John Branson, a psychiatrist.
The declarations which were presented to me concerning my decision on proof of the objective facts were also tendered on the trial of mental incompetence as were the records of the defendant’s medical history.
I set out briefly the uncontested objective facts in relation to the four counts. It was proved that on the 23rd December 1998 the defendant entered a service station at Rosewater armed with a knife and threatened a console operator demanding money which was handed over. He left in a motor vehicle the number of which was obtained. He was apprehended by the Police that evening and having admitted the offence was bailed. That behaviour related to count 1.
On the 30th December 1998, having been released on bail, he went into a shoe shop at Murray Bridge and threatened a member of the staff of the store with a knife and obtained $400.00. That was count 2.
Some hours after that he went into the Arkaba Hotel at Fullarton and threatened a drive‑in bottle department attendant with a knife and obtained $750.00. That was count 3.
And finally on the 31st December 1998 at Rosewater he went into a service station which was the same service station he robbed in count 1 and threatened the attendant with a knife and demanded money. The attendant however refused. The defendant then left in a vehicle which was observed and was finally apprehended by the Police. He was taken back to the Police Station where he made full admissions in relation to count 4. He was then interviewed about counts 2 and 3 and also made full admissions to those offences.
In evidence the defendant who is now aged 44 told the Court of his background and his work record and his medical history. I will not set those facts out. It is clear however that he has a history of attempted suicide and thoughts of suicide since he was 15 years old. He had a history of trouble with relationships, with alcohol and with gambling. He first went to Glenside Hospital in 1992 and on a number of occasions in 1993 went back to Glenside having admitted himself. He went to gaol in 1994 and while at Mobilong Prison he started a Prisoner Support Group. He continued with that activity after he was released on parole in November of 1994. He gave evidence that in 1997 he formed a relationship with Ms Russell and at the same time was running a number of men support groups. He gave evidence that he was fairly suicidal again during this period of time so much so that in 1997 he attempted suicide. He was also drinking very heavily. He then gave evidence about the lead up to the present offences. He gave evidence that he went to the Royal Adelaide Hospital in August of 1998 because of his suicidal thoughts.
In relation to the first offence of the 23rd December 1998 he said that he robbed the petrol station so that the Police could find him and shoot him and put everybody out of their misery. It was only for that reason. He did not know how he got to that particular service station. He said he bought the knife into the service station because it was one with which he wanted to slash his wrists. After he robbed the service station he drove his motor vehicle a few streets away, left it there and took a taxi to Glenelg. He then visited his brother at St Vincents Hotel at Glenelg and from the proceeds of the robbery gave him several hundred dollars. He then went to Hindley Street giving people money also from the proceeds of the robbery. The Police contacted his partner because he was driving her motor vehicle and she contacted the defendant. He instructed her to tell the Police where he was and he waited for them to pick him up. The gist of his evidence in relation to the first count was that he only committed that offence because he wanted to be shot by the Police.
After he was interviewed by the Police, on being given bail, he drove to Bordertown on his way to Victoria. He gave evidence that the reason he was going there was to get shot by the Victorian Police because in his mind they had a history of doing it better than the South Australian Police. That was from information that he had read in the newspapers. On the way to Bordertown he stopped at Murray Bridge and walked into a record store and then into a shoe shop and he gave evidence that he showed a knife to one of two girls who were there, demanded that she open the till which was eventually done and he grabbed a handful of notes and went out into his motor vehicle and headed towards Bordertown. That behaviour amounts to the objective facts which relate to count 2. He gave evidence that when he got to Bordertown he stayed in a hotel and started thinking of his partner and returned to Adelaide. He went to the Arkaba Hotel, bought a six pack of beer and while he was driving out stopped his motor vehicle and threatened the attendant with a knife and took money from the till. He then went down to Hindley Street giving money away. He said that he had been drinking most of that day. The next day he went back to the same B.P. service station at Rosewater that he had robbed on the 23rd December and threatened the attendant who refused to give him any money and the defendant walked out and drove off. That behaviour amounts to the objective facts in relation to count 4.
A short while after that he was apprehended by the Police. His evidence in relation to that offence was that he thought to himself “the more robberies I do the more they will think that I am a real bad guy and gun me down”. He gave evidence that when he was told by the Police on his mobile phone that the Star Force was going to come into it, he thought to himself “That is great, I am going to get gunned down, and everyone will be happy”.
Since his arrest on the fourth offence he has been seen by Dr Chris Branson his treating psychiatrist, and has had many sessions with him. In relation to the offences he gave the following evidence:-
"Q.... If you go back to these particular offences in December 1998, and what you were going through in your mind at that particular time, and just describe to us how your mind was feeling and what you were going through and your thinking and so forth.
A...... To me, each crime was just - the petrol station, the first one, the petrol station, was to basically get shot.
Q...... That was something you were thinking about.
A...... Yes, it was strong in my mind, very strong.
Q...... Were you thinking of anything else.
A...... Just that everybody would be happy without me, everybody would be better off without me. The shoe shop mainly was to get money to go to Victoria, so I could be shot by the Victorian police.
Q...... When you were thinking these thoughts of being shot, or not being around any more, were they thoughts of suicide.
A...... Yes.
Q...... Are they thoughts in your mind, or are they voices.
A...... No, not voices, they were definitely thoughts. It was just to get off the planet, get away from everybody.
Q...... When you say ‘get off the plant(sic)’, what do you mean by that.
A...... Die.
Q...... Could you control those thoughts.
A...... No.
Q...... Stop them.
A...... No. To me they were just stronger. At that time I was getting squeezed and squeezed, and the thoughts were getting stronger and stronger.
Q...... When you had those thoughts, were your thoughts to hurt anybody.
A...... No.
Q...... Prior to committing a robbery.
A...... No, never.
Q...... Were your thoughts to hurt yourself.
A...... Yes.
Q...... How long would these thoughts go for.
A...... Most of the day, sometimes two days. The shoe shop one was as soon as I left home and got in the car and started driving to Murray Bridge, the thought was to go to Melbourne and get shot. That lasted right up until evening time, when I was at the hotel.
Q...... When you came to do any of these robberies, did you think you were able to stop what you were doing.
A...... No.
Q...... Why not.
A...... It was just as soon as I walked into the petrol station or shoe shop, or the Arkaba - the Arkaba I still don’t understand. I bought a six pack and then I went back and robbed a petrol station. The thoughts were just uncontrollable, I just couldn’t control the actions. It was just a way of building up to the robberies, so that I could get shot.
Q...... After the last lot of robberies, how did you feel about what you had done.
A...... Very bad in myself. I was still wanting to die, because of the people around me, my friends - I felt I had hurt them, my fiancee. I just wanted to hurt them all.
Q...... How did you feel about what you had done to the people you had robbed.
A...... Well, as well, I felt like going back and apologising, but I didn’t know if that was going to be any good or anything. I knew that the girl at the shoe shop would have been scared out of her wits, and it was just not me. And my attitude, you know, when I think about it, I have got character references from managers and people, and here I am robbing shops and petrol stations. I just can’t believe it at time.”

The defendant also called his partner Jocelynne Anne Russell who gave general evidence supporting his suicidal tendencies leading up to the robberies, and two expert witnesses namely Dr Jack White, a psychologist and Dr Chris Branson, a psychiatrist. I deal with their evidence.
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 sufferers 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.
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 23rd 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.

[2000] SADC 137

23 November 2000