R v Caldwell
[2019] SASC 117
•15 July 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v CALDWELL
[2019] SASC 117
Judgment of The Honourable Justice Hinton
15 July 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - PROCEDURE
Samuel Caldwell was charged with the murder of his stepfather, Kenneth Thomson. It was alleged that on 5 July 2017 Mr Caldwell killed his stepfather by stabbing him multiple times with a knife.
On the strength of a report obtained from a forensic psychiatrist Mr Caldwell asserted that he had a mental competence defence pursuant to s 269C of the Criminal Law Consolidation Act 1935 (SA) (CLCA). He elected for the question of his mental competence to commit the offence and the question of whether the objective elements of the offence had been proved beyond reasonable doubt to be determined by a judge sitting alone.
Through his counsel Mr Caldwell conceded that the objective elements of the offence of murder were established beyond reasonable doubt. As for the question of his mental competence, the Court received two reports from each of two forensic psychiatrists. Both doctors ultimately concluded that at the time of the stabbing Mr Caldwell was experiencing psychotic symptoms as a result of his suffering from schizophrenia and in consequence was unable to reason with a moderate degree of sense and composure about the wrongfulness of his conduct. The opinions of the psychiatrists were not challenged.
Held:
1. The objective elements of the offence of murder are established beyond reasonable doubt.
2. Mr Caldwell was mentally incompetent to commit the offence of murder.
3. Mr Caldwell is not guilty of the offence of murder by reason of his mental incompetence and is declared liable to supervision under Pt 8A of the CLCA.
4. Mr Caldwell is committed to detention pursuant to s 269O(1)(b)(i) of the CLCA and is subject to a limiting term of life.
Criminal Law Consolidation Act 1935 (SA) s 269, referred to.
R v Porter (1933) 55 CLR 182; R v Willoughby (No 2) [2017] SASC 191; R v Willoughby (No 3) [2018] SASC 6, considered.
R v CALDWELL
[2019] SASC 117Criminal
Hinton J:
Introduction
On 6 March 2018 Samuel Caldwell was committed to this Court on a charge of murder. It is alleged that on 5 July 2017 he murdered Kenneth Thomson. Mr Thomson was Mr Caldwell’s stepfather.
In this Court, on the strength of a report obtained from Dr Furst, a forensic psychiatrist, Mr Caldwell asserted that he had a mental competence defence within the meaning of s 269C of the Criminal Law Consolidation Act 1935 (SA) (CLCA). He elected for the question of his mental competence to be dealt with by a judge sitting alone. For the reasons that follow I am satisfied that Mr Caldwell was mentally incompetent to commit the offence and on that basis is not guilty of the murder of Mr Thomson.
Objective elements
I proceed first to determine whether the objective elements of the offence of murder have been established beyond reasonable doubt. In this regard the evidence was agreed. Further, the Director and counsel for Mr Caldwell were united in the submission that the evidence proved the objective elements to the relevant standard. Nonetheless, both indicated that it was necessary that the Court satisfy itself.
In R v Willoughby (No 2) I said:[1]
[1] [2017] SASC 191 at [5]-[9].
Whilst s 11 CLCA creates the offence of murder, the elements of that offence are provided by the common law. Putting to one side reckless murder, the elements of the offence are as follows:
1 the accused caused the death of the victim;
2 the accused acted voluntarily and deliberately;
3 at the time the accused caused the victim’s death, he:
a. intended to kill the victim, or
b. intended to cause grievous bodily harm to the victim.
4 the killing was unlawful.
Section 269A(1) CLCA defines an objective element of an offence as meaning an element that is not a subjective element. A subjective element of an offence is defined in the same section as meaning voluntariness, intention, knowledge or some mental state that is an element of the offence.
Having regard to the definitions of an objective element of an offence and a subjective element of an offence, in my view the objective elements of the offence of murder are contained in element (1) as stated above, namely, the commission of an act by the accused that causes the death of the deceased.
In my view elements (2) and (3) are subjective elements within the meaning of s 269A(1) CLCA.
Justifications and excuses, such as self-defence, provocation and duress, that relieve a person otherwise guilty of murder of liability for the killing, are the subject of element (4). In view of s 269G(A)(3) CLCA the possibility that the act causing death was not unlawful by virtue of such act falling within one of the recognised justifications or excuses forms no part of the investigation I am to undertake. If I am wrong in that conclusion, it is in any event difficult to see exactly how the Court could have regard to any of the recognised justifications or excuses when they are, in the main, dependent upon the state of mind of the offender at the time at which he or she commits the act which caused death.
I remain of this view.
I have read the following declarations, affidavits and reports on the basis that they contain the evidence that the relevant witness would have given had he or she been called to give evidence.
·Declaration of Constable Kristian Bentley, dated 6 July 2017;
·Declaration of Senior Constable Nicholas Brewer, dated 17 August 2017;
·Declaration of Senior Constable Nicole Buckmaster, dated 17 August 2017;
·Declarations of Tiffany Caldwell, dated 7 July 2017;
·Affidavits of Detective Brevet Sergeant David Carman dated 6 and 12 February 2018
·Declaration of Detective Brevet Sergeant David Carman dated 15 August 2017;
·Declaration of Constable Grant Cheetham, dated 16 July 2017;
·Declaration of Grant Copley, dated 17 December 2017;
·Declaration of Constable Christopher Cormack, dated 26 July 2017;
·Declaration of Senior Constable Brendan Coulls, dated 22 July 2017;
·Declaration of Senior Constable Lynda Crisp, dated 26 July 2017;
·Declaration of Senior Constable Jason Crowe, dated 17 August 2017;
·Declaration of Detective Brevet Amanda Curtis, dated 4 August 2017;
·Declaration of Senior Constable Mark Dempsey, dated 17 August 2017;
·Declaration of Senior Constable Kimberley Devlin, dated 3 August 2017;
·Declaration of Senior Constable Julia Dowling, dated 6 August 2017;
·Declaration of Dr Karen Heath, dated 28 September 2017;
·Declaration of Probationary Constable Samantha Kenny, dated 6 July 2017;
·Declaration of Senior Constable Wayne Langford, dated 14 August 2017;
·Toxicology summary reports of Kerryn Mason, dated 14 August 2017 and 2 January 2018;
·Declaration of Constable Steven McCarthy, dated 23 July 2017;
·Declaration of Constable Tammy McInness, dated 13 July 2017;
·Declaration of Detective Brevet Sergeant Paul McKee, dated 6 July 2017;
·Affidavit of Brevet Sergeant Nicholas Merritt, dated 16 December 2017;
·Declaration of Detective Brevet Sergeant Michael Newbury, dated 17 September 2017;
·Declaration of Detective Brevet Sergeant Neil Ollerenshaw, dated 6 July 2017;
·Declaration of Detective Sergeant Neil Quinn, dated 21 August 2017;
·Declaration of Senior Constable Simon Rosenhahn, dated 6 July 2017;
·Declaration of Constable Daniel Schulz, dated 20 July 2017;
·Witness statement of Senior Constable Grzegorz Sikora, dated 31 July 2017;
·Affidavit of Brevet Sergeant Michael Strange, dated 7 November 2017;
·Declaration of Cadet Aimee Tanimu, dated 18 July 2017;
·Affidavit of Constable Naomi Tillet, dated 20 December 2017;
·Declaration of Probationary Constable Georgina Vivian, dated 13 July 2017;
·Declaration of Constable Adam Vonow, dated 6 July 2017;
·Declaration of Detective Brevet Sergeant Andrew Watt, dated 6 July 2017;
·Declaration of Detective Brevet Sergeant Darrin Widdrington, dated 7 July 2017;
·Declaration of Senior Constable Jeffrewy Wight, dated 6 July 2017, and
·Declaration of Senior Constable Jake Wild, dated 6 July 2017.
After reading the above material I am satisfied beyond reasonable doubt that on 5 July 2017 at about 10.35 pm Kenneth Thomson made the following 000 call:
Operator:SA Police, go ahead …
…
Operator:Thank you Police Emergency what’s your location?
Mr Thomson: ... Oaklands Park.
Operator:And what’s happened there today?
Mr Thomson: I’ve been stabbed.
Operator:Let me get the Police going and I’ll ask you some more questions okay.
Mr Thomson: Okay.
Operator:Where have you been stabbed? Whereabouts have they stabbed you? Where, where have you been stabbed? Hello.
Mr Thomson: Ahh.
Operator:Hello where have you been stabbed?
Mr Thomson: Ah in the, in the neck and the stomach.
Operator:Is there anyone there that can help you with the bleeding?
Mr Thomson: No. No. Don’t stab me again …
Operator:Shit.
Approximately six minutes later a police patrol arrived at 10 Albany Crescent, Oaklands Park. The police officers let themselves in via the backdoor after receiving no response when they knocked on the front door. They met Samuel Caldwell in the hallway. He was unarmed and covered in blood. When asked he indicated that he was unharmed though he had been bitten. One of the officers handcuffed Mr Caldwell, whilst the second searched the house. That officer quickly found Mr Thomson lying on the floor of a bedroom. A bloodstained knife was lying to the left of his leg. Mr Thomson had been stabbed.
A short time later an ambulance arrived and ambulance officers tendered to Mr Thomson before rushing him to the Flinders Medical Centre. Mr Thomson died at around 11.45 pm.
Samuel Caldwell had stabbed or wounded Kenneth Thomson upwards of 80 times to his face, scalp, neck, right shoulder, trunk and upper limbs using a large kitchen knife. Mr Thomson died from the consequential loss of blood he sustained from the combined stab and incised wounds inflicted by Mr Caldwell.
I note that Mr Caldwell admitted to what he did when interviewed by Dr Furst. Dr Furst recorded:
He said that he was “feeling good” and he had not used any drugs and he wasn’t drunk. He said that he was in his room listening to music and talking to himself, which he often did to motivate himself, when he began to feel that Ken was spying on him and felt that Ken was “some sort of informant”. He said that he asked Ken who he was informing to and “he wouldn’t tell”. He said that he thought Ken was always checking up on him and felt that there was “no trust” between them. Mr Caldwell said that he had thought that Ken could read his body language and would treat him like a slave or “make me like a bitch for him”. He said that he thought that Ken was recording him at his house through his phone, but denied delusions of thought broadcast or control or delusions of reference. He reiterated that he thought that Ken was working for someone and “being an informant … for the police in some way”. He said he was not sure why, but he did feel that Ken was “doing something”. He said that he did not feel that he was in danger, but just that Ken had been acting out of the ordinary and he felt like “a job had to be done”. When I pressed Mr Caldwell on these feelings on the second interview he stated that he thought that Ken was “paranoid” and that he was “doin’ some undercover work” but wouldn’t tell him who he was working for. Then he “just stabbed him” 14 times. He said he did not feel in danger but thought that Mr Thomson was “acting out of the ordinary”. He said his stated [sic] of mind at the time was that he felt that a “job had to be done” and he thought that it was the right thing to do if someone was “dogging” on you.
He said that after his last beer he grabbed a knife out of the drawer and went into Ken’s room and started stabbing him. He said that Ken bit his leg and was calling out; “You cunt” and tried to call the police and this made him think: “Yep, you dog, you’re doggin’ me” and he thought Ken was saying things behind his back. He said that he meant to kill Ken because he thought that Ken was “trying to set me up in some way”. He said that he tried asking Ken “who ya been talkin’ to about me?” but Ken told him that he hadn’t been talking to anyone. He said that in general, if someone was “dogging” on you, then stabbing them was the right thing to do, even if it probably wasn’t the best thing to do. When asked about what he was thinking at the time that he stabbed Ken, he said:
“I thought, you know, look … had to get stabbed, because the way he was shaking, being paranoid, stuttering, the way he was moving, it was weird”.
After he had stabbed Ken he allowed him to call the police, then stabbed him again when he was on the ground. …
I am satisfied beyond reasonable doubt that Mr Caldwell wounded Mr Thomson with a knife upwards of 80 times, and that the wounds constituted an act or a series of acts which, if accompanied by an actual intention to kill Mr Thomson, would be sufficient to sustain a conviction for the offence of murder. Thus I am satisfied that the objective elements of the offence of murder with which Mr Caldwell is charged have been proved beyond reasonable doubt. I turn to consider the question of whether Mr Caldwell was mentally competent to commit the offence.
Was Mr Caldwell mentally incompetent to commit the offence of murder?
Under s 269D CLCA a person is presumed to be mentally competent to commit an offence unless the person is found, on an investigation under Pt 8A div 2 CLCA, to have been mentally incompetent to commit the offence. The presumption contained in s 269D will only be displaced if the Court is satisfied on the balance of probabilities[2] that at the time of engaging in the conduct comprising the objective elements of the offence the accused was suffering from a mental impairment and, in consequence of that mental impairment, did not know the nature and quality of the conduct, or, that the conduct was wrong, or, was unable to control the conduct.[3]
[2] Criminal Law Consolidation Act 1935 (SA), s 269G(B)(3).
[3] Criminal Law Consolidation Act 1935 (SA), s 269C.
At the relevant time mental impairment was defined in s 269A(1) as including—
(a) a mental illness; or
(b) an intellectual disability; or
(c) a disability or impairment of the mind resulting from senility,
but does not include intoxication;
And mental illness was defined in the same section as meaning a pathological infirmity of the mind (including a temporary one of short duration).
In R v Willoughby (No 3) I said:[4]
Mental impairment is defined in s 269A(1) CLCA as including a mental illness, an intellectual disability or a disability or impairment of the mind resulting from senility, but does not include intoxication. A person suffers a relevant mental illness where they suffer a pathological infirmity of the mind, including such infirmity that is only of temporary or short duration. The definition of mental illness and its meaning can be traced to the judgment of King CJ in The Queen v Radford. That was a case concerning the now abolished insanity defence and the M’Naghten rules. More particularly the question was whether a dissociated state was the product of a disease of the mind within the meaning of the Rules. King CJ observed that the common law was wary of any attempt to define definitely a disease of the mind. He added:
... The expression “disease of the mind” is synonymous, in my opinion, with “mental illness”. In his charge to the jury in The King v. Porter Dixon J. used the expression “disease disorder or disturbance”. But the words “disorder” and “disturbance” must take their colour from the word “disease” and refer to disorder and disturbance of the mental faculties which can be characterized as mental illness. In one sense automatism must always involve some disorder or disturbance of the mental faculties, but I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as disease of the mind as that expression is used in the M’Naghten rules. As Lord Denning pointed out in Bratty v. Attorney-General for Northern Ireland, the major mental diseases or psychoses such as schizophrenia are clearly diseases of the mind. Moreover, physical diseases, such as psychomotor epilepsy, (Bratty v. Attorney-General for Northern Ireland) and arteriosclerosis (Reg. v. Kemp), when they affect the soundness of the mental faculties should be regarded as diseases of the mind. Lord Denning considered that any “mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind”: Bratty’s case. Disease of the mind is to be distinguished from “mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self control, and impulsiveness”: The Queen v. Porter. The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called “defect of reason” in the M’Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli. In my opinion the notion of “disease of the mind” should be explained to the jury in some such terms.
[footnotes omitted]
[4] [2018] SASC 6 at [10].
I remain of this view.
In R v Porter Dixon J elaborated upon when it may be said that a person did not know that the conduct he or she engaged in was wrong:[5]
The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the issue, the real question in this case. Was his state of mind of that character? I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about, and it is very difficult to be quite clear as to what is meant in describing mental conditions. I have used the expression “disease, disorder or disturbance of the mind.” That does not mean (as you heard from the doctor’s replies this morning to certain questions I asked him) that there must be some physical deterioration of the cells of the brain, some actual change in the material, physical constitution of the mind, as disease ordinarily means when you are dealing with other organs of the body where you can see and feel and appreciate structural changes in fibre, tissue and the like. You are dealing with a very difficult thing—with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression “know,” “knew that what he was doing was wrong.” We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.
[5] (1933) 55 CLR 182 at 189-190. I note that s 269C(1) of the Criminal Law Consolidation Act 1935 (SA) was post 5 July 2017.
I received two reports from each of two forensic psychiatrists, Drs Furst and Brereton. Ultimately both doctors were of the opinion that as at the time he stabbed Mr Thomson, Mr Caldwell was psychotic and consequently was unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions. Initially the doctors differed on whether Mr Caldwell’s psychosis was the product of substance abuse or an underlying mental illness. The difficulty was in no small part due to the fact that the doctors were dependent upon Mr Caldwell for all information as to the extent of this methamphetamine use and he had given differing accounts as to such usage. I return to this below.
It is unnecessary for me in these reasons to canvas the opinions of Drs Brereton and Furst in detail. The opinions that the doctors have expressed are not challenged. The factual foundation upon which those opinions are expressed is not challenged. No reason arises to reject the opinions of the doctors. I accept them.
I think it is important to record, however, that Mr Caldwell has had a history of mental health issues stemming back to at least 2010, which had on occasion required hospitalisation, including in psychiatric units, and had previously engaged in what may be described as bizarre conduct involving serious acts of violence. Proximate to the offence, on 19 May 2017, Mr Caldwell was admitted to the Margaret Tobin Centre, a psychiatric unit at the Flinders Medical Centre. In this regard Dr Furst records:
Mr Caldwell was admitted to the Flinders Medical Centre’s psychiatric unit, the Margaret Tobin Centre (MTC) on 19/05/2017. It was noted that he had been brought into the hospital by police after he had caused an “unbelievable” amount of damage at a service station, causing police to have concerns about his welfare. At the MTC he claimed that his phone had been hacked and he knew who was responsible. He claimed the police were after him and appeared to be responding to internal stimuli (voices). He settled overnight in the secure psychiatric unit. The nursing notes indicate that he did not present with any apparent psychotic symptoms the next morning and specifically mentioned that he had not responded to internal stimuli, but it was also noted that he had complained about his phone being hacked and tracking his movements. The next morning he admitted to the psychiatrist that he had used methamphetamine Thursday (15/05/2017) and had drank 6-12 beers per day. He told the psychiatrist that he had wanted police attention to fix his phone (that he believed had been hacked) and he thought he was being bugged. The psychiatrist’s assessment was that he had Low Grade Paranoia, but then also stated that there was no evidence of psychosis. However he confirmed the Inpatient Treatment Order for a period of observation in hospital given the history. A urine drug screen taken on 20/05/2017 was negative for all drugs other than prescribed benzodiazepines. On observation and review there was no sign of persisting psychotic symptoms and his Inpatient Treatment Order was revoked and he was discharged on 21/05/2017. The Separation Summary lists his discharge diagnosis as Low Grade Paranoia Likely Secondary to Methamphetamine. Oddly, it was stated that there was: “No community follow-up required” on his CBIS files.
The witness statement of Kenneth Thomson (“Ken”), dated 18/06/2017 indicates that he was travelling to Lakeview with Mr Caldwell so that Mr Caldwell could stay with Mr Villain and that about one kilometre north of Snowtown, Mr Caldwell turned to him and called him a “dog cunt”, then started to punch him to the left side of the face. When he prevented Mr Caldwell from taking his keys he was bitten. When they arrived at Mr Villain’s place, Mr Caldwell made Mr Thomson strip down to his underwear. The next morning Mr Caldwell apologised for his behaviour, but later when Mr Thomson was giving his statement by telephone, Mr Caldwell allegedly jumped on him and told him not to say another word.
I note that the statement of Gregory Villain (18/06/2017) alleges that Mr Caldwell arrived on 17/06/2017 and that at 0500 he came into his room, told him that he wasn’t afraid of Mr Villain and told him to go out into another area then started punching him hard in the head.
[emphasis in original]
Dr Furst reviewed the video footage of Mr Caldwell’s arrest on 5 July 2017 and subsequent interview with police. In the footage Mr Caldwell is described as being in a somewhat confused or perplexed state and at times unable to answer questions. Dr Furst stated that Mr Caldwell’s delusions about the police keeping him under surveillance or using Mr Thomson to record him and his sister indicated that he considered authority figures as persecutory which may explain why he did not communicate much with the police. The doctor also observed Mr Caldwell to be devoid of emotion in that for much of the time he appeared “oddly detached and [had] a facial expression that suggests that he … [was] … focused on his own thoughts”. Whilst this apparent indifference to the death of his stepfather could be interpreted as callousness, in Dr Furst’s view, it was more consistent with Mr Caldwell being in a chronic psychotic state.
Dr Furst was of the opinion that at the time of the offending Mr Caldwell was suffering from a mental impairment, namely paranoid schizophrenia, as evidenced by Mr Caldwell’s repeated and prolonged periods of psychosis with auditory hallucinations, disorganised speech, persecutory and paranoid delusions, delusions of reference and his restricted affect and poor insight. The doctor elaborated:
… I believe that he was likely to have been continuously psychotic from May 2017 and probably remains mentally unwell at the present time, as he presents with a very odd and incongruent affect, appeared to have no insight into his previous episodes of psychosis and when asked about how he had known that his mother’s ex-partner [had been treating her badly] he replied that he “knew” in the present tense to indicate that he had retained the belief that his mother’s ex-partner had been treating her badly. The way he spoke about the murder and his belief that Ken had been an informer was also odd and he justified his belief by reference to the way that Mr Thomson was acting, without any indication that he had realised that his belief was delusional.
In bringing his report to a close Dr Furst said:
Mr Caldwell has had frequent contacts with mental health services at the Flinders Medical Centre and the Inner South Community Mental Health Service since 2010 when he allegedly stabbed his step-father in the leg in response to auditory hallucinations that were accompanied by odd behaviour and tangential speech. He reported that he heard one voice that sounded much like his own and two female voices that sounded like they were coming from his phone and laughed about him or talked to each other. His presentation seemed odd to staff who interviewed him and initially it was thought that he had Alcoholic Hallucinosis secondary to withdrawal, despite the fact that he had admitted drinking up to 21 standard drinks prior to the alleged stabbing. He had ongoing follow-up in the community and reported further psychotic symptoms of feeling as though the devil was trying to get inside him, he was under camera surveillance by the police, and delusions of reference regarding strangers on the street or from the television. He had one acute episode when intoxicated and thought that his KFC burger and mayonnaise were poisoned. At that time his condition was considered to be Schizophreniform Disorder (the name given to a schizophrenia-like syndrome lasting less than 6 months in duration). In essence he had psychotic symptoms including hallucinations and delusions that lasted from April until September of 2010, which meant that he fulfilled the criteria for Schizophreniform Disorder, as long as his presentation was not solely due to the effect of substances and this was not able to be excluded at that time, although this was clouded by an initial consideration that his symptoms were associated with alcohol withdrawal, but the history clearly indicated that he had reported hearing voices at the time of the alleged stabbing of Mr Thomson after he had been drinking, not withdrawing. This is an important distinction, as psychotic symptoms in the context of alcohol withdrawal are not uncommon, whereas alcohol-induced psychosis is quite rare.
He also had a paranoid episode during an admission to the Margaret Tobin Centre in 2014, which was attributed to his poor ability to cope with stress, but this is just as likely to have been due to chronic psychotic symptoms that he could not hide when under stress and this would suggest that he had persisting psychotic symptoms that were not recognised as schizophrenia. He then had another episode of more acute psychosis that appears to have begun in May 2017 when he damaged property at a service station, ostensibly to get police attention so that they would fix his phone, which he believed had been hacked. Whilst it is recorded that he did not show signs of psychosis the day after his admission, he really wasn’t held in hospital long enough to properly assess his mental state and he was not referred for community mental health follow-up despite his history. Perhaps not surprisingly, he was taken to Port Pirie to stay with a family friend, although the reason for this has never been documented, Mr Caldwell claimed it was because he liked the country but given his presentation I believe it is likely that it was because of his mental state and may have even been an attempt to get him clean and sober, and may even have been related to the incident that saw him present to the RAH four days earlier. His actions in assaulting Mr Thomson in the car and later Mr Villain appear to be clearly driven by paranoia and some internal thought process that was not linked with reality and he was clearly still quite psychotic when he was detained under the Mental Health Act and arrived at the Margaret Tobin Centre. Why he was allowed to abscond after such a serious assault on Mr Thomson and Mr Villain and then when found was not required to be returned to the mental health unit for an assessment of his mental state is very difficult to understand, especially as community mental health follow-up was also not requested. It is therefore unclear whether he remained psychotic after he left the Flinders Medical Centre, but given he had been psychotic in May and four days earlier at the RAH, it is likely that he was still psychotic after he absconded from the ward. He allegedly assaulted his mother, damaged her property and went looking for her ex-partner with a knife during this period and in my opinion it is likely that he was psychotic at this time too, right up until he went back to stay with Mr Thomson on the night prior to the stabbing death. He has reported that he had been drinking up to six cans of beer, or nine standard drinks and significantly less than his previous consumption of 12-18 cans (18-27 standard drinks) per day, but that he had been talking to himself and he had developed an overwhelming feeling that Mr Thomson was recording him and working as a police informer and that this was what had driven him to stab and kill Mr Thomson. There was no report that they had fought or quarrelled about anything, in contrast Mr Thomson had accepted him back into the family home and bought beer for him. The belief that Mr Thomson was an informer and working for the police against him in some way was consistent with the previous episodes when he had assaulted Mr Thomson on the drive to Port Pirie and in 2010, as well as his previous episode at the service station when he believed that his phone had been hacked. Because drug-induced psychotic episodes are short lived and related to acute substance use or withdrawal, the symptoms tend to be vague or ill-formed in contrast to Mr Caldwell’s presentation in which he had recurring themes of persecution and auditory hallucinations. …
After referring to Mr Caldwell’s mental health throughout May 2017 as referred to above, Dr Furst continued:
Therefore in my opinion, the most appropriate diagnosis is one of Paranoid Schizophrenia, due to the repeated and prolonged periods of psychosis with auditory hallucinations, disorganised speech, persecutory and paranoid delusions, delusions of reference and his restricted affect and poor insight.
I note that Mr Caldwell’s previous presentations to mental health services have been confounded by his use of significant amounts of alcohol, cannabis and at times methamphetamine, but I believe that it is likely that his substance use has served to mask his underlying mental illness and he has actively hidden his mental illness at times. In support of a primary schizophrenia rather than merely substance-induced psychosis, are the facts that he maintains his delusional beliefs about Mr Thomson, he lacks insight, and he has restricted affect, all features of schizophrenia despite months of enforced abstinence from illicit drugs whilst on remand (I make the assumption that he has not been using in custody), his blood samples taken after his arrest were negative for alcohol and drugs and a urine drug screen was also negative following the incident at the service station in May 2017 despite the report that he had used methamphetamine. It is possible that his presentation can be explained as a case of a person with a low average or borderline IQ, a disrupted childhood and school bullying who later developed an aggressive and unstable personality and when under the influence of substances he developed frank psychotic episodes that resolved quickly and spontaneously, but I think that Paranoid Schizophrenia is more likely.
… I believe that he was suffering from a mental impairment at the time of the alleged murder, namely Paranoid Schizophrenia and that as a result he formed a delusional belief that Mr Ken Thomson was recording him and working with the police to inform on him. As a result of his psychotic thinking he believed that it was right to stab and kill Mr Thomson and this was reinforced when Mr Thomson attempted to call the police. Therefore, he was aware of the nature and quality of his actions in stabbing Mr Thomson and he had some measure of control over his conduct, but he was not able to reason with a moderate degree of sense and composure about the wrongfulness of his actions. On this basis, I believe that it is more likely than not that he has a mental incompetence defence.
[emphasis in original]
As mentioned earlier in these reasons, in his first report Dr Brereton agreed with Dr Furst’s conclusion that Mr Caldwell was experiencing a psychotic episode at the time that he stabbed Mr Thomson. But, as I have also mentioned, Dr Brereton was not prepared to agree that Mr Caldwell was mentally incompetent to commit the offence of murder because, on balance, he considered Mr Caldwell’s psychotic state to have been the direct result of his substance abuse which Dr Brereton understood, from Mr Caldwell, to be greater than what Dr Furst understood to be the case.
In the wake of Dr Brereton’s report, Dr Furst reviewed his own report and interviewed Mr Caldwell yet again. Essentially Dr Furst remained of the same opinion as expressed in his first report. He said:
The dilemma remains as to whether Mr Caldwell suffers from [an] underlying psychotic disorder (i.e. Schizophrenia) that is exacerbated by his use of alcohol, cannabis and methamphetamine or [is] a man who has had psychotic symptoms and acute episodes of psychosis solely as a result of his use of cannabis and methamphetamine. As at the time of my previous interviews with Mr Caldwell and subsequent report, I expected that his psychotic symptoms which I thought to be arising from Schizophrenia would manifest themselves in the prison environment and perhaps they have to some extent. His experience of ideas of reference and paranoid delusions about his television in September 2017 were only a couple of months after the index offence and whilst a diagnosis of substance-induced psychosis is considered to be unlikely if symptoms persist for more than one month, there have been a couple of studies … that show that methamphetamine users had persisting psychotic symptoms for more than a month in around 30% of cases. Therefore, if the incident with the television really was the last time that Mr Caldwell experienced auditory hallucinations and paranoia, then a diagnosis of substance-induced psychosis would have a little more weight, although as I have noted substance-induced psychosis tends to occur more in those who use intravenous stimulants over a prolonged period of time and usually in large amounts. This is in contrast to Mr Caldwell’s report that he had used a couple of points of methamphetamine sporadically. However, … I am concerned that his report of getting into fights as late as February 2018, some six or seven months after the index offence, in response to hearing another prisoner say his name and call him a dog whilst on the telephone to somebody, could be reality-based. I think there is a relatively high chance that it is also an episode of auditory hallucinations and delusional thinking which has gone unrecognised in the prison environment.
Dr Furst considered Mr Caldwell’s symptoms consistent with his having a genuine psychosis and thought it unlikely that Mr Caldwell was malingering.
Dr Furst cautioned that it was difficult to prove definitively whether or not Mr Caldwell was suffering from an underlying mental illness given that Mr Caldwell had provided two contradictory accounts and the doctors’ conclusions were ultimately based on Mr Caldwell’s self-report. Dr Furst also thought it would assist to have Mr Caldwell’s hospital records and statements from police officers who attended on those past occasions when Mr Caldwell had behaved bizarrely and violently.
Dr Furst noted that Dr Brereton “was persuaded by Mr Caldwell’s seemingly reflective and sincere report that in the past all of these episodes of psychosis had been associated with methamphetamine use” but it was also at least as likely that Mr Caldwell provided Dr Brereton with such a report because he was embarrassed to have been mentally ill. If Mr Caldwell’s last use of methamphetamine was a couple of weeks prior to the murder and he had experienced ongoing low-grade symptoms, Dr Furst favoured a diagnosis of a low-grade schizophrenia, complicated by drug use.
To resolve the difference of opinion between Drs Brereton and Furst, Dr Furst suggested that Mr Caldwell undergo a diagnostic inpatient assessment at James Nash House for at least two weeks and be trialled on antipsychotic medication.
The authorities adopted Dr Furst’s suggestion. Dr Brereton prepared his second report after Mr Caldwell was transferred to James Nash House and admitted as an inpatient from 19 November 2018 to 21 December 2018. Dr Brereton reported:
In his first report, on 11 April 2018, Dr Furst noted it was more likely than not that Mr Caldwell had been continuously psychotic from May 2017 until the alleged index offence, and there were indications of an ongoing psychotic illness months subsequently, despite abstinence from illicit drugs whilst on remand. Dr Furst concluded Mr Caldwell suffers from Schizophrenia. In my report of 15 August 2018, I observed that, during our third interview, Mr Caldwell gave an account of more persistent methamphetamine use, directly associated with psychotic symptoms. In addition, it appeared Mr Caldwell had steadily improved in terms of his mental state and functioning while in prison; during which time he was abstinent from illicit substances and not receiving treatment with antipsychotic medication. There was some ongoing behavioural disturbance, but Mr Caldwell denied psychotic symptoms and gave me a prosaic description of the reasons for this. I concluded, on balance, Mr Caldwell’s diagnosis was a drug-induced psychosis.
In his report of 2 November 2018, Dr Furst said he had interviewed Mr Caldwell again on 26 October 2018. During this interview, Mr Caldwell described what appeared to be more persistent psychotic symptoms in prison which had resulted in some of his behavioural disturbance. Dr Furst considered that some of the discrepancy in Mr Caldwell’s reporting of his history over time was likely to have been embarrassment at being mentally ill. Dr Furst stated, “I still slightly favour a diagnosis of a low-grade Schizophrenia complicated by drug use”.
In my most recent interview with Mr Caldwell, he reported a very limited history of methamphetamine use, which only occurred in 2013. This was a significantly different account to the one he provided in our previous interview, but Mr Caldwell told me I had gained the wrong impression that time, he had not meant to convey this information. The first time he was interviewed by Dr Furst he also told Dr Furst he had not used methamphetamine for about four years. However, this account contrasts with a number of contemporaneous reports that he told medical staff he had been using methamphetamine, for example on 14 June 2017.
There have been a number of discrepancies in the accounts of his history he has given to different assessors over time. This is problematic given Dr Furst and I have had to rely on self-report to such an extent. I believe the discrepancies in the information he has provided are, to a significant degree, due to his learning difficulty/language disorder with additional confusion caused by substance use and psychosis over the years. I do not believe it can explain the extent of the differences we have seen; I believe Mr Caldwell has, at times, been deliberately misleading for reasons such as embarrassment and an attempt to be manipulative (while not necessarily acting in his own best interests).
During Mr Caldwell’s inpatient assessment in James Nash House, he was interviewed a number of times by his treating team. He provided an account of psychotic symptoms consistent with the history he provided to me in our most recent interview. The treating team concluded he does suffer from a chronic psychotic illness, i.e. Schizophrenia, and began to treat him with the antipsychotic Olanzapine. His psychotic symptoms were not overt in the first place, but the team believed they did observe an improvement in his presentation, and Mr Caldwell has described experiencing a subjective improvement in his thinking.
In my opinion, and despite the problems noted in 3.5, Mr Caldwell’s report of enduring psychotic symptoms is convincing given its nature and the level of detail. He reports subtle detail consistent with Schizophrenia such as third-person auditory hallucinations (voices discussing you rather than talking to you), as well as delusions of influence and misinterpreting banal statements in a paranoid manner. His insight, as inferred from the history he provided, was convincingly nuanced and only partial.
In my opinion, the evidence now indicates Mr Caldwell has experienced psychotic symptoms long after his incarceration and this is unrelated to substance abuse. I have revised my opinion and now agree Mr Caldwell has a diagnosis of Schizophrenia and therefore I am in support of a mental impairment defence.
Accepting, as I do, the opinions of Drs Furst and Brereton, I am satisfied on the balance of probabilities that Mr Caldwell was mentally incompetent to commit the murder of Kenneth Thomson.
Orders
In view of my findings:
i.I declare that Mr Caldwell was mentally incompetent to commit the murder of Kenneth Thomson;
ii. I find Mr Caldwell not guilty of the offence of murder; and
iii. I declare Mr Caldwell liable to supervision under Pt 8A CLCA.
The limiting term
Section 269O(1) CLCA provided:
(1) The court by which a defendant is declared to be liable to supervision under this Part may—
(a)release the defendant unconditionally; or
(b)make an order (a supervision order)—
(i)committing the defendant to detention under this Part; or
(ii)releasing the defendant on licence on the following conditions:
(A) the conditions imposed by subsection (1a);
(B) any other conditions decided by the court and specified in the licence (including a condition that the defendant be monitored by use of an electronic device approved under section 4 of the Correctional Services Act 1982).
It was not contended that Mr Caldwell should be released unconditionally or on licence. In the circumstances I make a supervision order committing Mr Caldwell to detention under Pt 8A CLCA.
Having made a supervision order I am required under s 269O(2) CLCA to fix a limiting term being the equivalent to the period of imprisonment that would have been appropriate if Mr Caldwell had been convicted of the offence of murder. Before formally making such order, I record that when last this matter was called on Tiffany Caldwell read to the Court and her brother her victim impact statement. Ms Caldwell’s loss and grief is profound. To say that she misses her father terribly is an understatement. I do not overlook how important her father was to her and her family. Her father mattered. His premature death is the community’s loss.
Ms Caldwell feels that she and her family did not get the assistance from the mental health professionals that they knew her brother needed. She does not absolve him of all responsibility. At times he made life for her and her family, including her father, unbearable. Ms Caldwell appreciates that the authorities will now work with her brother to assist him to recover and maintain his mental health. She states:
I ask that attention to detail not be missed by the appropriate authorities this time when considering his release. We ultimately know what the outcome is if they get it wrong – which is something I will live in fear of as it feels like this nightmare still isn’t over yet.
I fix a limiting term of life.
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