R v Burfield - [2005] SASC 438

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BURFIELD
Judgment of The Honourable Justice Gray
29 November 2005
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Accused pleaded not guilty to attempted murder and wounding with intent to cause grievous bodily harm - consideration of psychiatric evidence of accused's mental state at time of alleged offending - Court satisfied on balance of probabilities that at time of alleged offences accused was mentally incompetent to commit the offences.
Criminal Law Consolidation Act 1935 (SA) s 269B, s 269F, referred to.
R v Larizza (2004) 90 SASR 104, considered.

R v BURFIELD
[2005] SASC 438
Criminal
GRAY J:

On 10 September 2004, the defendant, Mark Andrew Burfield, was charged with the attempted murder of his mother, Rae Carmel Burfield. The defendant was also charged with wounding with intent to do grievous bodily harm. Upon arraignment he pleaded not guilty to both charges. An issue has arisen as to his mental competence to have committed the charged offences. [1]
[1] Three psychiatrists opined that the defendant was fit to plead and stand trial. For instance, Dr Tomasic concluded: “In my opinion Mr Burfield is currently fit to stand trial. I consider that he was mentally incompetent to commit the offences on the basis of suffering a mental impairment, namely psychosis related to Chronic Schizophrenia and amphetamine induced psychosis. I consider he did not know that his conduct was wrong and was unable to control his conduct”.
Part 8A of the Criminal Law Consolidation Act 1935 (SA) proscribes the procedures to be followed in the hearing and determination of the issue of mental competence. Part 8A has been described as a comprehensive manual of law and procedure relevant to a defendant’s fitness to stand trial and the defence of mental impairment.[2]
[2] R v Larizza (2004) 90 SASR 104.
Pursuant to section 269B of the Criminal Law Consolidation Act, the defendant elected to have his trial dealt with by a judge sitting alone.
Section 269F sets out the procedure to be followed when a trial judge decides that the defendant’s mental competence to commit the charged offences is to be tried first. I made that decision in this case. Section 269F relevantly provides:
(1)     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.
(5)     The court may, if the prosecution and the defence agree—
(a)dispense with, or terminate, an investigation into a defendant's mental competence to commit an offence; and
(b)record a finding that the defendant was mentally incompetent to commit the offence.
At the trial of the issue of the defendant’s mental competence, I received into evidence medical reports from three psychiatrists, Dr Raeside, Dr Tomasic and Dr Czechowicz. I was informed by both counsel for the Crown and the defendant that it was agreed that the defendant was mentally incompetent to commit the charged offences and that I should record a finding to that effect.
On 15 September 2005, I concluded that it had been established on the balance of probabilities that the defendant was, at the time of the charged offences, mentally incompetent to commit those offences. I recorded a finding to that effect. At the time of making and recording that finding I indicated that I would provide reasons for my finding. I now do so.
For the purposes of my consideration of the issue of mental competence, I also received into evidence, and have had regard to, a number of declarations tendered by the Crown as well as two interviews of the defendant. That material allows an outline of the offending to be recorded. Later in the proceedings I reached the conclusion that the objective elements had been established beyond reasonable doubt. I will discuss the factual circumstances of the offending in detail in my separate reasons in relation to that finding. What follows is a brief summary of the events leading up to and surrounding the commission of the offence.
In the early hours of the morning of Friday, 10 September 2004, Ms Burfield, the mother of the defendant, returned to her home at Auburn. She went to the toilet inside the house. As she exited the toilet she saw the defendant in the doorway with a kitchen knife in his hand. The defendant stabbed his mother in the left shoulder and chest area about eight times.
Ms Burfield retreated into the toilet and shut the door and spoke to the defendant in an attempt to deter him from attacking her. The defendant forced the toilet door open, punched Ms Burfield in the mouth, kicked her and said, “I am going to kill you, you fucking cunt, why did you do those things when I was young. You made me into a girl and you made me play footy”. The defendant then jumped on top of Ms Burfield and began stamping on her hands and head. He hit her with a broom handle and later with a metal tennis racquet.
At about this time another son entered the house. The defendant told his brother what he had done. The defendant said, “Look at her, she should be dead the amount of a bashing I’ve given her”.
Ms Burfield eventually escaped from the home, hid in bushes at the back of the house until sunrise where she was later discovered by her other son and the police.
Dr Raeside, a psychiatrist, reported on two occasions. On 8 April 2005, he expressed the following conclusion:
I have previously expressed serious concerns about Mr Burfield’s mental competence to commit the alleged offences given his “delusional” views about his mother, paranoid fears for his safety, and his description of the attack. From reading the various statements and viewing the interview I would now be more conclusive in that I believe that Mr Burfield was psychotic at the time of the alleged offences. Whilst he appears to have known the nature and quality of his actions (in stabbing and assaulting his mother, with a real possibility that she would die), I would have serious concerns about his ability to reason with a moderate degree of sense and composure about the wrongfulness of his actions.
There is some indication that he knew the legal wrongfulness, by anticipating that he would be kept in custody, but he appears to demonstrate genuine lack of understanding and appreciation, as well as knowledge, of the moral wrongfulness of his actions. He believed that his mother deserved to die, he had wanted her to do so for many years, and finally attacked her. However, he seems to have resisted deliberately inflicting fatal wounds (in his view), being unable to bring himself to do so. However, he reported being surprised that she had not died from what he had done. The slashing of the tyres and the cutting of the telephone wires might indicate efforts to avoid detection, but in the greater context it would appear that he did this to prevent his mother from escaping.
There is insufficient evidence to be conclusive about where [sic] Mr Burfield was able to control his conduct. Certainly, he appears to have had a driven quality to his actions, based on underlying delusional ideas, but it is unclear whether he simply chose to go ahead with these actions, or felt otherwise compelled. In fact he states he did resist inflicting fatal wounds to her head.
Consequently, I would be prepared to support a defence of mental incompetence in this matter given the weight of Mr Burfield’s psychosis at the time of the attack, his actions based on underlying bizarre delusional ideas in relation to his mother, and the contemporary account of him at the time.
Dr Tomasic, a psychiatrist, reported to this court on 29 June 2005. On the issue of mental competence she reported:
In my opinion Mr Burfield suffers from a mental impairment, namely Chronic Schizophrenia, and was psychotic at the time of committing the offences related to an exacerbation of his illness related to amphetamine abuse, indicating a drug-induced component of his psychosis, and non-compliance with medication.
He appeared to understand the nature and quality of his conduct, being aware that he was harming his mother and planning to kill her.
However, in my opinion, he did not know that his conduct was wrong, believing that his life was in danger and that his mother “was trying to kill me”. He made no attempt to hide his actions after the offence, and he reported feeling completely justified in his actions, and he continues to express marked persecutory delusions and homicidal [sic] towards his mother and cousin Trevor.
There is also some evidence to suggest that he was unable to control his conduct based on his psychotic thought disorder, agitation and command hallucinations.
Therefore, in my opinion Mr Burfield was mentally incompetent to commit the offences.
Dr Czechowicz, a psychiatrist, reported to this Court on 4 July 2005. His conclusions were in the following terms:
It is my opinion that he was mentally incompetent to conduct the offences for which he was charged on 10/9/04. He has a mental illness namely schizophrenia and has suffered from this illness for at least 10 years. He had early problems of an antisocial nature – so it is my opinion that he also has antisocial personality disorder or at least antisocial traits. He uses illicit drugs in large amounts as his history demonstrates, and has admitted to having taken amphetamines several days before however in my view this only aggravated his basic condition of schizophrenia which had been diagnosed earlier.
Additionally:
(a)as outlined above it is my opinion that on 9^th and 10 October 2004 he did not know the nature and quality of his conduct, nor
(b)did he know that the conduct was wrong and
(c)at the time he was unable to control the conduct due to his absolute conviction of his mother’s guilt generated by his established and ingrained delusional system.
This evidence allowed me to conclude that it had been established on the balance of probabilities that the defendant was, at the time of the charged offences, mentally incompetent to commit those offences. As earlier observed, I recorded my finding to that effect.