R v Burnett
[2015] ACTSC 400
•16 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Burnett |
Citation: | [2015] ACTSC 400 |
Hearing Date(s): | 21 – 22 September, 16 December 2015 |
DecisionDate: | 16 December 2015 |
Before: | Robinson AJ |
Decision: | See [122] – [125] |
Catchwords: | CRIMINAL LAW – Particular Offences – unauthorised possession or use of prohibited weapons – damage to property – recklessly inflict grievous bodily harm – acts endangering life – possess offensive weapon with intent – dangerous driving – trial by judge alone – defence of mental impairment – found not guilty by reason of mental impairment. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 308, 324, 381 Criminal Code 2002 (ACT) ss 27, 28 Supreme Court Act 1933 (ACT) ss 68B, 68C |
Cases Cited: | Mulcahy v R [2012] ACTCA 3 Mule v R (2005) 221 ALR 85 The Queen v Falconer (1990) 171 CLR 30 |
Parties: | The Queen (Crown) David Burnett (Offender) |
Representation: | Counsel Mr S McLaughlin (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) S & T Lawyers (Offender) | |
File Number(s): | SCC 283 of 2014; SCC 238A of 2014 |
Robinson AJ:
Offences
Mr Burnett was arraigned on an indictment containing four counts:
On 19 September 2014 at Canberra in the Australian Capital Territory David Percival Burnett possessed a prohibited weapon and was not authorised by permit, or otherwise by the Prohibited Weapons Act 1996 (ACT), to possess the weapon.
And further that on 19 September 2014 at Canberra aforesaid David Percival Burnett caused damage to property belonging to someone else, namely UXC Limited, and intended to cause, or was reckless about causing, damage to that property or any other property belonging to someone else.
And further that on 19 September 2014 at Canberra aforesaid David Percival Burnett recklessly inflicted grievous bodily harm on Michael Munn.
And further that on 19 September 2014 at Canberra aforesaid David Percival Burnett intentionally and unlawfully threw or otherwise used an inflammable substance in circumstances likely to endanger human life or cause a person grievous bodily harm.
To this indictment Mr Burnett pleaded not guilty by reason of the fact that he was suffering from mental impairment at the time of the offences.
In addition to the above, two further charges were transferred, as related charges, pursuant to s 90B of the Magistrates Court Act 1989 (ACT). These were possess offensive weapon with intent (s 381 (1) Crimes Act 1900 (ACT) and dangerous driving (s 7 (1) of Road Transport (Safety and Traffic Management) Act 1999 (ACT)). The parties agreed I should proceed upon the basis that the same plea had been entered to those offences.
Counsel for Mr Burnett conceded that both the physical elements of the offences and also the fault elements of the offences had been proven by the Crown to the standard of beyond reasonable doubt, subject only to the special plea of mental impairment. That concession was correctly made.
Election for Trial by Judge alone
Mr Burnett has elected to be tried by a judge alone under s 68B of the Supreme Court Act 1933 (ACT). This election was made under the hand of Sarah Burnett as legal guardian. Mrs Burnett is the wife of Mr Burnett.
I am required by s 68C (2) of that Act to set out the principles of law applied and the findings of fact upon which I have relied.
Requirements of the Defence
Under the law of the ACT, the statutory embodiment of a form of the M’Naghten Rules is set out in ss 27 and 28 of the Criminal Code 2002 (ACT).
27Definition—mental impairment
(1)In this Act:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(2)In this section:
mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary
(3However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
28Mental impairment and criminal responsibility
(1)A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that—
(a)the person did not know the nature and quality of the conduct; or
(b)the person did not know that the conduct was wrong; or
(c)the person could not control the conduct.
(2)For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.
(3)The question whether a person was suffering from a mental impairment is a question of fact.
(4)A person is presumed not to have been suffering from a mental impairment.
(5)The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.
Agreed Facts
The parties placed before the Court an agreed statement of facts covering what might be called a narrative of the material events leading up to 19 September 2014, and the events of that day when the offences set out in the indictment took place. It is convenient to largely draw from that document as to those events and what follows.
Prior to starting that narrative, I record that it is common ground that prior to the events described below the accused “had never done anything reflective of bad character. He had lived a useful and blameless life”. That fact to my mind has some significance in this case outside the standard direction of good character and I will return to it below.
After leaving school, the accused attended the Australian Defence Force Academy in Canberra, completed a Bachelor degree in geography and economics and officer training at Duntroon. He had seen active duty and reached the rank of Major before transferring to Army Reserves in February 2003.
The accused commenced employment with UXC Limited (“UXC”) in December 2012. In this role, he worked as a contractor for the Department of Defence at the Royal Australian Air Force Base in Fairbairn, ACT. UXC has an office located at 18-20 Brindabella Circuit, Brindabella Park (the UXC office). The UXC office is located on the ground floor of that building and is accessible through a foyer. There are other businesses which occupy the remainder of the building.
On 31 July 2014, the accused was involved in a motor vehicle incident. Subsequently, the accused took personal leave from his employment for a stress-related condition. In August 2014 the accused lodged a worker’s compensation claim. From this time until 19 September 2014 there were various communications concerning when the accused was to return to work, what arrangements were to be made in the interim, and the prerequisites for the accused to return to work. Towards the end of this period, it became clear that the accused intended to return to work on 22 September 2014; there having been a medical certificate (issued by Dr Graeme Harrison) which expired on 20 September 2014.
On 18 September 2014, Lindsay Alabakis, People and Culture Advisor at UXC Limited, (Alabakis) advised the accused by email and telephone that, prior to returning to work, the accused would be required to provide a medical certificate stating that he had the capacity to return to work.
On 19 September 2014, the accused attended the Phillip Medical Centre where he was seen by one doctor and, being dissatisfied with that consultation, was then seen by Dr John Broderick. The accused sought and obtained a certificate stating that he was fit to return to work as of 22 September 2014.
At approximately midday on 19 September 2104, the accused attended the UXC office. He spoke to Gabrielle Webster, requesting she make a copy of the certificate issued by Dr John Broderick. The accused then asked to see George Katavic (who manages the Canberra branch of UXC) (Katavic). The accused waited a short period until Katavic exited his office. The accused had a brief conversation with Katavic, during which he provided a copy of the certificate issued by Dr John Broderick, and indicated his intention to return to work on Monday 22 September 2014. The accused then left the location and returned to his residence.
The accused scanned and then emailed the certificate issued by Dr John Broderick to Alabakis and then phoned her. The accused and Alabakis had a conversation concerning whether the accused would be able to return to work on 22 September 2014.
At around this time, the accused was engaged in regular text messages with his wife, Sarah Burnett. One exchange was as follows:
1:32pm – The accused: “I am pissed off.”
1:33pm – Sarah Burnett: “And so you should be. We can talk through this with the
lawyer. Are you breathing OK?”
1:34pm – The accused: “There is no point. They win.”
At approximately 1:55 pm the same day, Marie Bloxham, Claims Advisor with GIO Insurance, (Bloxham) telephoned the accused. The accused told Bloxham that he needed to withdraw his workers compensation claim. During that conversation, Bloxham advised the accused that she had seen the medical certificate that he had provided to UXC and that, as it was not in WorkCover format, it was not valid and he would not be able to return to work on 22 September 2014. The accused advised that he would be going back to work on 22 September 2014. Bloxham indicated that if he did he would be asked to leave. After some further discussion, the accused said: “I’m going to kill myself”. The accused then terminated the telephone call.
At 2:01 pm the same day, Nikki Hay, Rehabilitation Counsellor (Hay) sent an email to the accused, copying in Alabakis and others. This email informed the accused that the medical certificate provided was not sufficient for him to return to work.
At 2:05 pm the same day, the accused replied to Hay’s email. He said “You are all against me. The blood is on your hands.”
While at his residence, the accused sent the following text messages to Sarah Burnett:
2:21pm – “Stay away from the house”
2:22pm – “Do not bring the children here”
At about this time, the accused prepared three Molotov cocktails (using petrol within plastic juice bottles with white fabric as the wicks). Further, the accused taped a knife to one arm, and armed himself with a further knife, a tomahawk, army issued matches, and a pick handle.
At 2:37 pm the same day, the accused sent Katavic (and copied in Alabakis) an email which stated: “You have pushed me too far. Preparefire Hell”.
At 2:39 pm, the accused sent a text message to Sarah Burnett which said: “I love you”.
The accused then entered his vehicle, being a red Nissan Navara and drove to the UXC office. While on his way to the UXC office, the accused drove down the wrong side of Hindmarsh Drive for a short time, drove on the wrong side of bollards on Dairy Flats Road, and drove in such a manner as to force multiple vehicles to take evasive action. At approximately 2.55 pm the same day, the accused drove at speed into the car park of the UXC office and collided with two metallic bollards.
The accused exited his vehicle, leaving one of the Molotov cocktails and the tomahawk within the vehicle. As the accused exited his vehicle, he dropped one of the knives. The accused approached the building at speed while carrying a bag containing two of the Molotov cocktails in one hand, the pick handle in the other, and in possession of the knife which was taped to his arm.
The accused took one of the Molotov cocktails into the building, leaving the other in the bag outside the building. As the accused entered the building he used the pick handle to strike one of the glass sliding doors. The accused proceeded to enter the UXC office where he smashed a vase that had been situated on the front desk. The accused then used the pick handle to smash three glass doors and a large glass window. The Crown alleges that this was done to make sure police would attend. The accused’s actions caused the other UXC employees who were present to retreat into secure areas of the office and ultimately to leave the office through a side door.
While inside the office, the accused was shouting various statements. This included:
“I’m gonna get you. You can’t do this. I’m gonna smash all of you.”
“You fucking fire me, George.”
Shortly thereafter, the accused exited the UXC office and proceeded into an underground car park. He continued to shout statements like:
“I’m gonna get you George.”
“I want to see the regional director, where is George.”
The accused then proceeded to the front of the building where he was met by Sergeant Kehl, Constable Watt and Constable Munn of the Australian Federal Police. The accused came to within approximately five metres of the officers and yelled:
“Draw your weapons, draw your weapons.”
Constable Watt drew his firearm, took aim at the accused, and said:
Constable Watt: “Drop the weapon, drop it now.”
The accused: “I’m serious, shoot me.”
Constable Watt: “Mate, I don’t want to shoot you, just drop it.”
Meanwhile, Constable Munn held his hands out in front of him with his palms facing the accused and said:
“It’s okay mate, just calm down so we can talk about it.”
The accused placed the pick handle onto the ground, at which time Constable Watt placed his firearm into its holster. The accused then knelt and, using a match, lit the piece of white rag protruding from one of the Molotov cocktails. Constable Watt said:
“Don’t mate, it’s not worth it.”
The accused stood back up and Constable Watt redrew his firearm. The accused walked towards Constable Munn who said:
“Drop it, drop it.”
The accused was waving and tipping the Molotov cocktail. This caused an amount of petrol to catch fire and spill onto Constable Munn’s right leg, causing Constable Munn’s right leg to become engulfed in flames. It is not alleged by the Crown that the accused attempted to cause injury to any person. (Indeed, the accused was distressed to hear subsequently that an officer had been injured.) Constable Munn jumped over a small ledge and was assisted in extinguishing the flames by two members of the public. As a result of the accused’s actions, Constable Munn suffered partial thickness burns and some full thickness burns to his right leg between his ankle and knee. An updated medical report (Ex 8) fortunately suggests Constable Munn is making a recovery from the burns.
The accused turned and released one of the Molotov cocktail in a manner which caused it to fly in the direction of Sergeant Kehl. It is not alleged by the Crown that the accused threw the Molitov Cocktail at any person. The Molotov cocktail landed in front of Sergeant Kehl and then continued past him. Sergeant Kehl drew his Conducted Energy Weapon (Taser) and fired it at the accused. Consequently, the accused fell to the ground and was apprehended by Sergeant Kehl and Constable Watt, with Constable Munn returning to assist.
While being detained, the accused said:
“Why didn’t you just shoot me? You should’ve just shot me.”
Commencing at 5:42 pm the same day, the accused participated in a Taped Record of Conversation relating to a forensic procedure. Then, at 6:45pm the same day, the accused participated in a Taped Record of Interview. The events consisting of the criminal offences occurred at about 2.55pm to 3 pm.
Further Events Pre and Post 19 September 2014
It is relevant to the evaluation of the conduct of 19 September 2014 to consider the accused’s conduct before and after that date.
The relevant history prior to 19 September 2014 can be taken conveniently from a report written by Dr O’Dea, now the accused’s treating psychiatrist, on 24 November 2014:
Mr Burnett told me that leading up to his “first breakdown” on 31 July 2014, he had consulted his local general practitioner since February 2014, and enquired “about getting some sleeping pills”, and had also “had a chat to the Army medic the Saturday beforehand”, at an Army Reserve weekend at the Singleton Barracks.
He told me that he had his “first breakdown” on 31 July 2014, when he was taken to the Canberra Hospital Emergency Department, “on the Thursday afternoon”, after having being found on the side of the road “semi-conscious”. He told me that he had not been drinking alcohol or taking other substances at the time, “... I think I’d hyperventilated and passed out ... we live in a battle-axe block... I was in such a state ... I was trying to drive over a small brick wall ... I remember very little after that...”. He told me that he had been sedated at the Accident and Emergency Department at the Hospital after another “attack” in the Emergency Department, and was subsequently discharged home with a referral to the local Mental Health Assessment Team.
He told me that on Saturday 2 August 2014, the Mental Health Team attended his house, where he had again hyperventilated, and they had called an ambulance. He told me that as he did not want to return to the Canberra Hospital, he was taken to the Military Base Hospital at Duntroon, where he was admitted from 2-5 August 2014 and prescribed a tranquilising medication (Diazepam, Valium®), an antidepressant medication (Sertraline, Zoloft®), and a mood stabiliser (Quetiapine, Seroquel®).
He told me that he had not returned to work since 30 July 2014, with a worker’s compensation claim in place from 13 August 2014. He told me that following discharge from the Military Base Hospital at Duntroon, he had managed by his local General Practitioner, Dr Graham Harrison, and had made an appointment to consult a psychiatrist on 8 October 2014, “... but I didn’t make it that far ...”. He told me that he also commenced counselling on a weekly basis with Angela Jones from the Vietnam Veteran’s Counselling Service in Kingston.
He told me that he had a medical board review with the Army through this time and was placed on a Medical Category J23 with restrictions that he could not access weapons. He told me that as a result of this, he was formally on sick leave from the Army Reserves and UXC Consulting, but he had continued from home, “ ... taking calls ... mainly from uniform people ...”.
An assessment was conducted on 24 September 2014 by Dr Rhonda Dotson under s 309 Magistrates Court Act 1930 (ACT
).Relevantly, it records the events in the five days immediately post 19 September 2014.
David was remanded in the Watchhouse where he made his first attempt to self-harm by hanging. Two further attempts to hang himself followed – one at the Mental Health Assessment Unit (MHAU) at the Canberra Hospital and again on the Adult Mental Health Unit (AMHU). He was consequently nursed on a 1:1 special for several days until he was able to express that he would not harm himself again whilst in hospital.
The Further Evidence
The Crown tendered the DVD recordings of both police interviews referred to at paragraph [36] and a watch house interview. It also tendered photographs of the scene. The Crown did not call medical evidence and there was no evidence that the Crown had the accused medically examined.
After the Crown had opened its case, I was told by Counsel for the accused, Mr Doig, that he intended to call a single witness in his case, Dr O’Dea. I enquired of counsel how he proposed to prove the history and other matters upon which Dr O’Dea’s opinion was based. He told me he did not propose to prove any history and that the accused would not give evidence either. Counsel referred me to a practice in the Court that proof of history was never required. He said at T. 12 line 11-
His Honour: If it is necessary, how is A, B, C, D, E to be proved as facts?
Mr Doig: They don’t need to be proved as facts. Sorry to be obtuse, your
Honour, but in my experience in this jurisdiction this has never been an issue.
I do not believe that there is any sound basis for such practice. I returned to this issue later with both counsel. Reference needs to be made to the interaction of ss 60, 79 and 136 of the Evidence Act 2011 (ACT).
It is the case that hearsay may be admitted into evidence where it is relevant for another purpose other than the proof of an asserted fact and whether or not the person who made the representation had personal knowledge of the asserted fact. See s 60 (1) and (2) of the Evidence Act.
Section 60 of the Evidence Act has the effect that a history taken by a doctor and recorded in a medical report is evidence of the facts so recorded. Section 136 of the Evidence Act stands as the safeguard for the opposing party. See, for example, in this jurisdiction, Mulcahy v R [2012] ACTCA 3 at [77]-[81].
After further debate, Counsel for the Crown foreshadowed an application under s 136 to limit the use of evidence. Later, counsel for the Crown withdrew the application upon reflection.
Accordingly, the factual evidence contained in the eight medical reports (six reports from Dr O’Dea and two reports given under s 309 Magistrates Court Act) tendered in the accused’s case are in evidence for all purposes.
The Accused Case
The accused did not give evidence. His counsel told me from the bar table “everything your Honour needs with regard to what was in his mind at the time is there.” That was a reference to the DVD exhibits referred to at [40]. I also took counsel as referring to such cases as Mule v R (2005) 221 ALR 85 at [20]-[24].
I would normally approach the evidence of the accused contained in police interviews with great caution. In this case I accept the truth of what the accused told the police in the two interviews. His answers to police were convincing and credible. The interviews were conducted within three hours of the events in question. The accused was “cross examined” by police in an oppressive manner. He was told several times he was lying and that his answers did not make sense. One such lie was described as “blatantly obvious”. The interrogators also talked over him being dissatisfied with his attempts to answer. Parts of the interviews would be ruled inadmissible if objection had been taken. (I interpolate here to say that one possible reason for this treatment was the fact that their colleague had been badly injured in the course of duty by the accused and in circumstances where that colleague had been attempting to selflessly save the life of a person bent on committing suicide.)
I accept that the accused went to the UXC premises at Brinabella Park on 19 September 2015 at about 2.55 pm for the purposes of causing a disturbance which would precipitate the attendance of police who then, so he hoped, would shoot him. I accept the motivation for that action was that he perceived that his wife and children would benefit financially from his death through his entitlements. I also accept that the accused armed himself with two knives, three Molitov cocktails and one pick axe handle, so that when he encountered police officers (as he made sure he would) those police officers would be unable safely to get close enough to him to use their tasers but would be forced to shoot him with their glock pistols. He intended to create a credible threat and hoped that by doing so police would kill him.
I find that the accused had no intention of harming anyone other than himself and his choice of venue was motivated by concern for his children and neighbour.
I do not find it necessary to resolve the issues surrounding the actual merits of the accused’s treatment at work by UXC. I find that the accused believed, correctly or incorrectly, that his return to work was being unreasonably thwarted and he would not be allowed to return and resume paid employment. I also find that UXC, in the eyes of the accused, did not respond appropriately on that critical day to a threat of self harm made by the accused to kill himself.
Summary of Medical Opinion
As foreshadowed by counsel, the accused called only one witness in his case, Dr O’Dea. Dr O’Dea was examined in chief and cross examined. It is convenient to set out a summary of his evidence in chief before examining more closely each step in his reasoning process.
Dr O’Dea found that at the time of the offences the accused was suffering from a major depressive disorder.
Dr O’Dea found that the major depressive disorder arose from an underlying pathological infirmity of the mind and hence was a “mental illness”.
Dr O’Dea then found that the effect of the mental illness at the time of the offences was such that the accused did not know that the conduct was wrong and, additionally that the accused could not control his conduct at that time.
History of Treatment and Consultations
Dr O’Dea first examined the accused on 21 October 2014, about a month after the commission of the offences. He had access to the transcripts of the police interviews of 19 September 2014 with the accused. He examined the accused again in November 2014 and when the accused was granted bail in December 2014 Dr O’Dea arranged for the accused to be an inpatient at Mosman Private Psychiatric Hospital under his care. The accused spent 18 weeks there, consulted Dr O’Dea regularly, in addition, he had the support of psychologists and nursing staff. He responded to changes and increases in psychiatric medications. Dr O’Dea maintained consultations, supervision and monitoring after the accused left hospital and resumed life in the community. Dr O’Dea continues in that role. I refer to the frequency and extent of contact between Dr O’Dea and the accused as it gives a degree of confidence as to the opinions expressed of Dr O’Dea.
At this point, it is appropriate to mention the task Dr O’Dea has been asked to perform in these proceedings. It is the events of 19 September 2014 on which he must form an opinion as to the mental condition of the accused on the date of the offences. The doctor is required to extrapolate back to that date and there is an inherent difficulty in doing so. As the Crown pointed out, this task became even more difficult when it was evident that the effect of many other subsequent psychological events or stressors had to be taken into account. The Crown pointed out and the doctor agreed that such matters as the laying of criminal charges, being taken into custody, the fluctuations in the condition and the various medications would need to be taken into account. Dr O’Dea said that that could be done and he had done so. He stated that the illness had a predictability, there were some contemporaneous reports available to him and he had the benefit of studying the particular person and his responses over time.
Major Depressive Disorder
Dr O’Dea’s provisional diagnosis in October 2014 was that the accused suffered from a major depressive illness. The doctor gave evidence that, over time, he grew more confident and was able to confirm this diagnosis. More particularly, his final diagnosis is of major depressive illness with melancholic features including psychomotor agitation and retardation.
The doctor explained that a major depressive disorder is a constellation of symptoms and signs, primarily related to pervasive and persistent disturbance of mood. Biological functions which are impaired include problems with regulating moods and persistent fluctuations, problems with anhedonia, or difficulty from deriving pleasure, difficulty with thinking, concentration and attention, and impact on the biological rhythms of the sleep/wake cycle. Other symptoms can manifest including suicidal ideation and weight loss, all pointing to an underlying pathological process.
This diagnosis must be seen against what Dr O’Dea described as underlying personality issues of long standing problems with anger and aggression as well as adverse reaction to stress.
The Crown did not challenge this diagnosis.
Underlying pathological “infirmity of the mind”
The doctor explained that a structural abnormality of the brain or a chemical imbalance could lead to major depressive disorder. In this case, it was Dr O’Dea’s view that a chemical imbalance was the cause of the disorder.
The Crown did not challenge this view.
Did not know that the conduct was wrong and could not control the conduct at the time
In general terms, Dr O’Dea’s view was that the mental state associated with the disorder severely and significantly impaired a number of the accused’s key cognitive functionings and therefore his behaviours, including at the time of and in relation to the alleged offences.
At the time of the offences Dr O’Dea was of the opinion-
... that Mr Burnett’s mental state at the time of the alleged offences, that was associated with his Major Depressive Disorder, included: a severely depressed mood; strong suicidal urges and ideation; marked negative thinking; constant rumination regarding his predicament; low frustration tolerance; distress, despair, hopelessness and helplessness; and poor judgment and emotional control.
These above symptoms and signs of significantly impaired mood and thinking, by their very nature, would have been associated with significant impairment in his ability to reason and therefore make judgements about his predicament and appropriate responses to his predicament; and would have been associated with significant impairment in his ability to exercise control over his urges to act in relation to his predicament, and therefore his actions in relation to the alleged offences.
As such, and on the balance of probabilities, his above mental state at the time of the alleged offences would have had the effect that Mr Burnett would not have been able to reason with a moderate degree of sense and composure about whether his conduct in relation to the alleged offences, as seen by a reasonable person, was wrong, and as such, under the meaning of Section [28] of the ACT Criminal Code 2002, would not have known that the conduct was wrong, and furthermore would not have been able to control the conduct.
It was at this stage that the Crown took issue with the analysis and the two conclusions drawn by Dr O’Dea, those being that the accused would not have been able to reason that the conduct in question (that is, the elements of the offence) was wrong, and that he could not control his conduct at the relevant time.
Crown Submissions
It is convenient at this point to set out the Crown submissions. First, the Crown challenged Dr O’Dea’s approach in undertaking the extrapolation task set out above.
The Crown suggested in cross examination at T.84-
In relation to this process of working backwards I’m going to suggest that what you’ve in fact done is reason from the position that somebody under the grips of a mental illness, in this case major depressive disorder who acts in a particular criminal matter must have acted that way because of the mental illness, that that’s the reasoning process you followed in writing your reports[.]
I do not accept this criticism of the doctor’s methodology. The doctor formed his view on the balance of the evidence available reflecting on the events of 19 September 2014.
A second matter raised by the Crown in cross examination of Dr O’Dea brought into sharp focus the need to address the legal tests as to mental impairment to be applied in these proceedings. At T.85-
CROWN: In relation to that course, you have indicated yesterday and I know these aren’t your exact words, I’m happy for you to elaborate on this, but effectively that the mere fact the person comes to the conclusion that they should end their own life, commit suicide is evidence that that person is not reasoning properly and you have put aside the situation of somebody with a terminal illness?---
DR O’DEA: My point, of course I would make reference again to the DSM-5 item that you made reference to that in psychiatry and as a psychiatrist my profession takes this view and therefore I do, that if an able bodied person whose not at the end of their life takes the decision to end their life or have somebody – sorry, to commit suicide, that in and of itself is an unacceptable view and putting it in the context of the wider picture of anxiety and depression is a further symptom and of course a sign that people actively go out and do it because that goes from suicidal ideation to suicidal action that constitutes part of a mental illness.
HIS HONOUR: By definition? ---
DR O’DEA: By definition.
By definition is the way you put it yesterday as I understood it?
CROWN: ---Yes, yes.
At the bar table there was discussion, and two examples by way of explanation proffered, concerning first a Buddhist monk burning himself to death to promote a cause, or to prevent loss of life, and a person who decides to sacrifice his or her own life in order that others may escape death. At least in these examples and at one level there is planning, logic and rationality in these two examples.
I have carefully reflected on the opinions given by Dr O’Dea and his reasoning processes to determine whether his professional training relevantly colours his opinion in this case, where answers must be given in a legal framework and not a psychiatric framework.
The Crown directed my attention back to the statute. Section 13 of the Criminal Code defines conduct as:
an act, an omission to do an act or a state of affairs
When that definition is taken into account in s 28 of the Criminal Code, the Crown says that the focus of the defence of mental impairment is upon the conduct of the accused in committing the acts and omissions the subject of the offences. It is not upon the ultimate result sought to be achieved by the accused. It is the conduct which forms each offence that the accused must not know is wrong or is unable to control.
The Crown says it is not the decision of the accused to end his life that is the central focus when determining mental impairment in the legal sense. It is the reasons, decisions and actions he took in attempting to implement the strategy where that strategy consists of criminal acts and omissions.
The Crown did not take issue with the fact that the test in s 28 is directed not to legal and moral concepts of “wrong”. What is meant by wrong in this section is wrong having regard to the everyday standards of reasonable people. See, for example, R v Porter (1933) 55 CLR 182, 189/190 and R v White (2003) 7 VR 442 at 451. Nor did the Crown contend that an appreciation by the accused that his conduct will constitute a contravention of the criminal law necessarily be fatal to his defence.
Crown Case
The Crown’s factual submissions were limited to an examination of the accused’s reasoning processes and ability to control his conduct immediately before and at the time of the offences. The Crown focused on the accused’s interactions with the various persons in the lead up to the offences, comments made in each of the recorded conversations and record of interview and comments made by the accused during consultations with Dr O’Dea.
The Crown makes the case that an examination of the functioning of the accused’s efforts to return to his work reveal that the accused was functioning at least with (or exceeding) a moderate degree of sense and composure. It was clear to the accused that he needed a medical certificate and that it had to be produced to and accepted by the various people at UXC and GIO to be cleared to return to work. He eventually obtained such a certificate and deployed it. It was only after his efforts were thwarted that his conduct turned to or involved committing criminal offences. When it became clear to the accused that he would not be able to return to work on 22 September 2014 he commenced preparations for the commission of offences which would, in turn, lead to his death.
By way of summary of the Crown case, it is convenient to record a number of conclusions which are justified by references to the evidence. These are:
(a)that the accused wanted to end his life;
(b)that he believed the ending of his life would enable his family to access his life insurance and property;
(c)that he did not want to hang himself in the family home because his family (including his children) might find him;
(d)that inducing a fatal shooting by police was how he wanted to end his life;
(e)that he did not make the decision to involve police lightly;
(f)that it was not appropriate to be shot at his own house as his neighbour had PTSD;
(g)that he could be shot at his employer’s premises; and
(h)that he had to create a scene to attract the attendance of police and gain a comprehensive response.
The above is a summary. It does not show that the accused’s entire process of reasoning and detail. The process set out above reveals that the accused was able to change his plans and then substitute new plans out of a concern for those for whom he cared. He was able to gauge the harm that the impact of his actions would have on these people.
The Crown then draws attention directly to the circumstances of the offences against the above background. The accused, it was said, demonstrated an appreciation that the conduct of possessing a Molotov cocktail in the circumstances was illegal given the accused’s disclosures that he wanted to elicit a response from police. The Crown conclusion is that, in the light of the demonstrated appreciation by the accused of the impact that possessing the Molotov cocktails would have on others, “it is difficult to see how the accused was not able to reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person is wrong”.
I do not embrace this submission entirely as it does not give proper weight to a critical aspect of the accused’s reasoning process. I disagree with the Crown’s contention-“In fact, the accused’s sole reason for possessing the Molotov cocktails was to “pose a greater threat.” The evidence reveals that the reason he took the Molotov cocktail to the scene was that it was seen by him as a way to avoid being tasered because police would not be able to come into Taser range. It is not contended by the Crown that the accused intended to use the Molotov cocktail as a weapon. Its sole function was to provide distance between the police and the accused. In that way it would be a threat but its function was to summons police at a measured distance to him. It is not obvious to me that the accused saw or reasoned that such conduct would be seen by a reasonable person as wrong in the relevant sense.
Next the Crown makes a specific submission in respect of the property damage. It will be remembered that when the accused arrived at the UXC premises there were no police in attendance. I accept the submission that the actions of the accused in damaging property at those premises was an attempt to elicit a police response for the purposes of the implementation of the accused’s plan to have police shoot him dead. I also accept that the accused would have appreciated that his actions were illegal in the sense that the police would arrive because they had been summoned in respect of illegal criminal damage having occurred.
The Crown makes similar submissions in respect of the other offences. I accept that there is more than a modest degree of planning and logic employed by the accused in the execution of his plan to have himself killed by police on that day. I also accept that the accused felt a grievance against UXC arising out of his employment and his return to work and also that the accused believed that UXC had failed to comply with a protocol concerning his threat of self-harm made from his house. The Crown submitted that in accordance with the accused’s grievances he “targeted” the UXC office as the venue for the offending. I do not attach great weight to the venue finally chosen by the accused as the place for his death. First, the accused was hopeful of a police presence at UXC by reason of the email he sent. Second, I see it as only a default position on the facts after he had first determined to take his own life and had discarded another place for inconvenience.
In its submissions on “conduct”, the Crown again drew my attention to the position that the accused must prove he was unable to control the conduct comprising the physical elements of each offence. It was immaterial whether the accused was able to make a determination/choice of whether to end his life. The Crown submitted that an examination of the accused’s thought processes in relation to why each offence was committed (as referred to above) demonstrated a reasoned approach by the accused and one where he was able to control his actions in respect of the physical elements of each offence. A matter which the Crown stressed in oral argument was that at no time had the accused in all his various accounts to police and Dr O’Dea ever suggested that he had an inability to control his actions.
Whether Mental Impairment Proved
I am satisfied beyond reasonable doubt that the accused committed the physical elements of each of the offences. I am also satisfied that, but for the plea of mental impairment, the accused had the requisite intention or fault element in respect of each offence and that the Crown has established this beyond reasonable doubt. The accused is not, therefore, entitled to be acquitted of any offence before consideration of mental impairment.
My task is to determine whether at the time of the offences the accused has proved, on the balance of probabilities, that he was suffering from a mental impairment, as defined, and that this mental impairment had the effect that he did not know that his conduct was wrong and additionally or alternatively that he could not control his conduct. I must start from the presumption that the accused is not suffering from a mental impairment and I must determine whether I find, as a fact, that mental impairment has been made out by the accused.
I find that the accused at the time of the offences accused was suffering from a major depressive disorder.
I find that the major depressive disorder arose from an underlying pathological infirmity of the mind and hence was a “mental illness” within s 27 of the Criminal Code.
I am persuaded of the last two matters by the opinion of Dr O’Dea, the accused’s medical history pre and post the offences, the accused’s previous ability to function in society (and with underlying personality issues), the objective facts proven as to the offences and what the accused has said about those matters to police and Dr O’Dea.
I also have regard to the nature of the very endeavour on which the accused embarked on that day over a matter of one and a half hours. Reduced to simple terms, his plan was to commit suicide by being shot dead by police at the age of 43 as a result of a workers compensation/resumption of employment dispute leaving a wife and two daughters aged 9 and 11, whom he clearly loved.
There is no evidence that the Crown sought to have the accused medically examined. I am aware, that as the tribunal of fact, I am not bound by the opinion of any expert witness even if uncontradicted.
Reasoning - Conduct was wrong
I am to apply the statutory test for determining whether a person knows that the conduct was wrong as set out at s 28 (2) of the Criminal Code. I have already set out the meaning of “wrong” in this context in [77] above.
When s 28 (1) (b) and s 28 (2) are placed together the required analysis becomes:
The accused is not criminally responsible if the impairment had the effect that the person did not know the conduct was wrong.
The person does not know the conduct was wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.
I find, on the balance of probabilities, that at the time of the conduct in question the accused has established that he did not know that his conduct was wrong. He was unable to reason with a moderate degree of sense and composure about whether his conduct, as seen by a reasonable person, was wrong.
In making that finding I have adopted the view of Refshauge J in Queen v Barker [2014] ACTSC 153 at [85] that “a moderate degree of sense and composure means something more than a basic degree and something less than a perfect degree”.
My reasons for making this finding are as follows.
First, the events of the day, taken from the agreed facts establish that the accused was making plans to return to the workforce about which he was positive. At 1.32 pm he first expressed unhappiness about the progress of that plan in a text message to his wife. By 1.55 pm he had been told of the UXC response and said in a further text message to his wife he would kill himself. By 2.05 pm he reinforced his threat with the “blood on hands” email which he sent to UXC. By 2.21 pm we can infer, from a text to his wife, he had decided to hang himself in his own house. Very soon thereafter he had changed his plans and now prepared Molotov cocktails. By 2.39 pm we can infer from the text to his wife, that he was contemplating death. At approximately 2.55 pm to 3.00 pm the accused committed the conduct to attempt to bring about his own death.
Although it was said there was time to consider each step and change plans, I take the time line as being indicative of a very sudden progression of disappointment, anger, suicidal ideation to suicidal action and the accused’s mind being overwhelmed by a perceived necessity to kill himself.
I bear in mind that this conduct is also consistent with a very angry and impulsive but not mentally impaired person. However, against this is the fact that the accused has never been in trouble (par [9]) despite long standing personality issues.
Second, the manner of driving to the UXC premises casts doubt on whether he was able to function adequately in carrying out a simply repetitive task of driving a car. The facts are consistent with an inability to concentrate on the task of driving because his mind was overwhelmed by something else or impaired by some mechanism. I find that the manner of the driving to the UXC premises probably reflects upon his mental condition at that time. It will be recalled from the agreed facts that:
While on his way to the UXC office, the accused drove down the wrong side of Hindmarsh Drive for a short time, drove on the wrong side of bollards on Dairy Flats Road, and drove in such a manner as to force multiple vehicles to take evasive action. At approximately 3:00pm the same day, the accused drove at speed into the car park of the UXC office and collided with two metallic bollards.
The accused said that not only did he not want to cause damage to his car but he saw it as being inherited by his wife upon his death. It should be remembered that “entitlements” was a stated prime motivation for the suicide. However, by itself, the manner of driving is insufficient to conclude that the accused was suffering under a mental impairment whilst driving to the UXC offices. The Crown called my attention to the fact that there are many other explanations for poor driving.
HIS HONOUR: I don’t know that I understand it that way. I think he’s got other things, bigger things in his mind.
CROWN: And for that reason, he’s not concentrating fully on the road, as I’m sure everybody in this room at some stage has found themselves thinking about work or similar, and realising that they’re drifting between lanes, or similar.
But the first thing that the doctor ascribed it to was, he was angry. Now, we’ve already discussed the point about anger, and that being an underlying personality issue, and not part of the mental illness or mental impairment.
HIS HONOUR: That’s true.
CROWN: For that reason, that has to be put outside your Honour’s assessment of section 28. There can be all number of reasons we could hypothesise as to his dangerous driving. I suggested to the doctor this morning that well, why would one be careful driving if they just wanted to kill themselves anyway, there seems little point and your Honour will be well aware of the effects of adrenalin and so forth on these kinds of things. It is my submission that little can be taken from the manner of driving in itself.
Third, as the tribunal of fact, I have regard to the stated objectives and motivations of the accused in wanting to end his life. I do not reason that suicide can only be undertaken by someone, who, by hypotheses, must be mentally ill. Nevertheless, an examination of the motivations and objectives has a capacity to throw light on the ability to reason at the time. As the tribunal of fact, I find that the stated objectives and motivations of the accused in wanting to end his life at the time he did were not the product of what I would see as a usual thought process in my fellow citizens. In particular, they gave no proper thought or consideration to other comparably simple avenues of resolving the issues of his employment and no proper thought to a raft of other consequences of a successful suicide, some economic and some social.
Fourth, I take into account that the accused first decided to take his own life by hanging. This required no breach of the criminal law. That manner and place of death was only discarded because of its impact on others.
Fifth, I take account of his functioning both pre and post 19 September 2014 set out at [39] and [41] above. I am influenced, in particular, by the state of events on 31 July 2014 and the three further attempts at suicide in the days following 19 September 2014. Whilst these matters are not directly relevant to the functioning of the accused on 19 September 2014 they throw light on it.
I conclude that, at the time of the events between 2.55 pm and 3.00 pm the accused was not able reason with a moderate degree of sense and composure. His mind was fixated on carrying out the events which would lead to his death. It is true that his actions and plans to achieve this end involved reasoning and predicting the course of events. It also involved a knowledge and appreciation of harm caused to others. At the time, I do not think that the accused had the requisite capacity to reason on the topic about how his conduct could be seen.
Dr O’Dea was taxed on this in cross examination. The flavour of the questions and answers on this topic can be gained from this interchange at T.89/90 with the Crown-
He knew by dying and doing it himself in a hanging fashion that somebody would find him? ---Yes.
And that he knew if he did that at home it was highly probable to be loved ones?---Yes.
Likewise - - -?---But of course, as you said, there's some things that he was clear and correct about, but that doesn't mean that they formed a logical basis for the conclusion that that was a sensible and appropriate outcome.
But when you're saying the conclusion - it's a sensible and appropriate outcome, you're referring back to the very start premise that he wanted to kill himself as effectively meaning that everything that followed was devoid of proper logic and proper reasoning?---Not - in a sense yes, but also in the context - because, you know, it's the other thing of this sort of island of sanity in a sea of madness that this was not something that I as a psychiatrist can take in isolation, just this one thing he's saying that he wants to kill himself and why shouldn't people be able to kill themselves. We're looking at it in the overall context of what was going on for him at the time. And many of the things you've described, if I step back - even though they may have logical sequences to them, still seem to be highly inappropriate and depressive and that there are alternatives that he wasn't weighing up and thinking about at the time that could have adequately managed the situation for him other than commit suicide. And, you know, getting into the logic that you're running with, the fact that it may make his family okay, he's not thinking about the emotional impact it's got on his family and his children. He's only thinking about the financial impact.
It is a fair summary of Dr O’Dea’s opinion on this topic that he regarded the demonstrated logic, planning and appreciation of some of the foreseen results as being insufficient to conclude that the accused was able to reason with a moderate degree of sense and composure about whether his conduct, as seen by a reasonable person, was wrong. Dr O’Dea adhered to his opinions set out above at [66] and [68] on the topic of ability to reason.
I accept Dr O’Dea’s reasoning process set out above. I accept that the planning, some logic, changing plans and some appreciation of the harm done to others as well as other consequences are truly indicators that the accused had the capacity for reasoning to the requisite degree about whether his actions were “wrong”. However, when those matters are considered in the context of the entirety of the accused circumstances I find that the accused was not able to reach the standard of being able to reason with a moderate degree of sense and composure as to whether as seen by a reasonable person his conduct was wrong in the relevant sense.
In assessing his evidence I do not consider that Dr O’Dea’s last opinion that the accused was unable to reason with a moderate degree of sense and composure, suffers from a flaw in the reasoning process, outlined above, that a person (absent last terminable stages of life) is mentally ill. Dr O’Dea’s opinion has a secure grounding in the facts and does not rely on definitions or presumptions from the psychiatry profession.
Could not control his conduct at that time
An inability to control conduct is not part of the traditional M’Naghten defence. The Commonwealth, ACT, NT, SA, Queensland and WA jurisdictions have embraced it in their Codes.
The defence needs to be distinguished from automatism. The distinction is taken up in The Queen v Falconer (1990) 171 CLR 30. For present purposes, it is only necessary to set out examples of automatism to distinguish that from mental impairment. The suggested instances of sane automatism (from Falconer at 61) are sleepwalking in some circumstances, some cases of epilepsy, concussion, hypoglycaemia and dissociative states.
There has been a difficulty of long standing in the decided cases concerning inability to control conduct. That difficulty is that it is very difficult to determine if a person was truly unable to control their conduct or simply just did not control their conduct. For example, in R v Byrne [1960] 2 QB 396, 404, Lord Parker CJ referred to the difficulty-
Furthermore, in a case where the abnormality of mind is one which affects the accused’s self-control the step between “he did not resist his impulse” and “he could not resist his impulse” is as the evidence in this case shows, one which is incapable of scientific proof. A fortiori there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses. These problems which in the present state of medical knowledge are scientifically insoluble, the jury can only approach in a broad, common sense way.
See also the case quoted by the Crown on the hearing, R v Cox [2006] SASC 188 at [25]-[26].
The conduct which the accused must prove he was unable to control is the conduct comprising the physical elements of the offences. I am also conscious that s 28 (1) (c) provides that the person must establish they could not control the conduct, as opposed to having an impaired ability to control the conduct.
I am unable to find that the accused has proved that he could not control the relevant conduct at the time of the offences. I find that it is more probable than not that the accused could control his conduct in the relevant sense and that he was able to act in accordance with his plans and execute the physical elements of the offences. It may well be that those acts were planned, undertaken and executed from an incapacity to reason properly but that is not the point under consideration.
I acknowledge a circularity or overlap of the processes of reasoning and the processes of willed acts. Nevertheless, a distinction can be made on the facts that I have found when applied to the legislation.
Further Directions
Pursuant to s 68C of the Act I am required to set out the principles of law I have applied and the findings of fact on which I have relied. I am also required to state any warning, direction or comment that I am required to take into account. I have applied the principles below. I have stated the facts found above.
As the tribunal of fact as well as the judge of the law, I must find the facts and draw the inferences from them as well as apply the law to the facts as I find them. I must bring an open mind to the evidence and view it dispassionately and not let emotion enter into my decision. Both the Crown and the accused are entitled to a verdict free of partiality prejudice, favour or ill will. The verdict that I deliver must be in accordance with the evidence.
The properly made concession in this case (par 4 above) makes it unnecessary to set many standard directions.
I must determine whether a witness is honest and reliable. I can accept part of the witness’ evidence, reject part of that evidence or reject or accept the totality of that evidence.
I must determine the facts in accordance with the evidence and I may use my common sense, experiences and wisdom in assessing the evidence.
I have stated further propositions of law above in the body of the judgment which I have applied to the facts of this case.
Order
Pursuant to s 324 of the Crimes Act I return a verdict of not guilty by reason of mental impairment to the following charges:
(a)unauthorised possession or use of prohibited weapons;
(b)damage to property;
(c)recklessly inflict grievous bodily harm;
(d)acts endangering life;
(e)possess offensive weapon with intent; and
(f)furious/reckless/dangerous driving.
On the offender’s undertaking that he will go to the ACT Civil and Administrative Tribunal (ACAT) this afternoon, and if the offender is not able to progress his case this afternoon he will take advice from the ACAT as to when to return, I order that the offender submit himself to the jurisdiction of the ACAT to enable the ACAT to make a mental health order.
I note that I am satisfied that it is appropriate to make the order above on the criteria set out in s 308 of the Crimes Act 1900 (ACT).
I order that the offender submit to the jurisdiction of the ACAT to enable the ACAT to make recommendations as to how the offender should be dealt with.
| I certify that the preceding one-hundred and twenty-five [125] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: Date: 22 December 2015 |
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