R v Cawte - [2018] SASC 182

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v CAWTE
[2018] SASC 182
Reasons for Decision of The Honourable Justice Nicholson
13 December 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
The defendant was charged with having murdered his twin brother, Jake Cawte, on 3 March 2017. He pleaded not guilty by reason of mental incompetence.
The prosecution conceded that the defendant was mentally incompetent at the time of the conduct the subject of the charged offence. The defendant and prosecution requested by agreement that the Court record a finding that the objective element of the offence of murder is established.
The defendant elected for both issues to be determined by a Judge sitting without a jury. The Court proceeded pursuant to section 269F of the Criminal Law Consolidation Act 1935 (SA) and determined first the issue of mental competence. The Court considered all relevant witness statements and forensic psychiatric reports provided by the parties.
Held:
1.       on the balance of probabilities, at the time of the incident resulting in the death of his brother, the defendant was suffering from a mental impairment, namely a mental illness, and as a consequence, did not know that his conduct was wrong;
2.       beyond reasonable doubt, the objective element of murder has been established;
3.       the defendant is not guilty of the offence of murder on the grounds of mental incompetence; and
4.       the defendant is liable to supervision and is subject to a limiting term of life.
Criminal Law Consolidation Act 1935 (SA) s 269A, s 269B, s 269C, s 269D, s 269F, s 269FA, s 269FB, s 269O, s 269Q, s 269R, s 269T, Pt 8A; Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (SA), referred to.

R v CAWTE
[2018] SASC 182
Criminal
NICHOLSON J.
Introduction

Lucas Brian Timothy Cawte (Mr Cawte) was charged with having murdered his twin brother, Jake Cawte (the deceased), on 3 March 2017.
At approximately 10.45am that day, Mr Cawte attended at the Christies Beach Police Station and admitted having shot his brother at the address where they were both living, that his brother was dead and that Mr Cawte had been planning to shoot his brother “for weeks … to save him … from God”. The police immediately attended at the address provided by Mr Cawte and located the body of his brother. The cause of death was determined to be shotgun wounds to the head. There was a double barrel shotgun leaning up against the bed and a shotgun shell on the floor near the shotgun. There were no other persons located inside the house.
Mr Cawte admitted killing his brother. However, he pleaded not guilty to murder by reason of mental incompetence. Mr Cawte, through his counsel, elected to have both the issue of mental competence and the issue of whether or not the objective element for the offence of murder might be established by the prosecution to be determined by a Judge sitting without a jury.[1]
[1] Section 269B of the Criminal Law Consolidation Act 1935 (SA).
On 9 August 2018 and after reviewing the evidence available and hearing from counsel for the Director of Public Prosecutions and counsel for Mr Cawte, I recorded the following findings by reference to section 269F of the Criminal Law Consolidation Act 1935 (the Act):
(i)that Mr Cawte was mentally incompetent to commit the offence of murder at the time he unlawfully killed his brother; and
(ii)that the objective element of the offence of murder had been established.
As a consequence, I found Mr Cawte not guilty of the offence of murder by reason of mental incompetence. I declared Mr Cawte to be liable to supervision under Part 8A of the Act for the obligatory limiting term, being a period of life pursuant to section 269O(2) of the Act. I made an order committing Mr Cawte to detention pursuant to section 269O(1)(b)(i) of the Act. I also made directions for the preparation of various reports as required by sections 269Q, 269R and 269T of the Act. I now provide the following brief reasons in support of my conclusions.
Legislative scheme
Part 8A of the Act provides for a scheme for the detention or release on licence of defendants who suffer from mental impairment such that, as a consequence, they have been acquitted of a criminal offence. Part 8A has been recently amended[2] in a number of substantive and procedural respects which amendments commenced operation on various dates during and after September 2017. No relevant transitional provision has come to my attention. Accordingly, to the extent that the amendments effect a substantive change to the law, they do not apply with respect to the unlawful killing committed by Mr Cawte on 3 March 2017.[3]
[2] Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (No 19 of 2017).
[3] Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515.
In my view, section 269C is substantive. As at 3 March 2017, it provided as follows.
269C – Mental competence
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment –
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; or
(c) is unable to control the conduct.
The definition of “mental impairment” as provided for in subsection 269A(1) (also substantive) was in these terms:
Mental impairment includes –
(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.
In order to satisfy the requirement in paragraph (b) of section 269C, it has long been accepted that it is sufficient if a finding is reached that the person in question at the time of the alleged conduct in question, by reason of a mental impairment as defined, could not reason with a moderate degree of sense and composure that the conduct in question was wrong having regard to the everyday standards of reasonable people.[4]
[4] The King v Porter [1933] HCA 1; (1933) 55 CLR 182. One of the amendments to Part 8A earlier referred to has effected a substantive change in this respect. Paragraph (b) of subsection 269C(1) now provides:
Does not know that the conduct is wrong; that is, the person could not reason about whether the conduct, as perceived by reasonable people, is wrong; or …
The draftsperson has provided the following “Note” to this paragraph:
Paragraph (b) adopts the test as stated and excludes from consideration whether the defendant could reason with a moderate degree of sense and composure as set out in R v Porter (1936) 55 CLR 182.
Mental competence
At the hearing on 9 August 2018, I proceeded pursuant to section 269F of the Act[5] and considered the question of Mr Cawte’s mental competence first before proceeding to consider whether or not the objective element had been established. As earlier indicated, counsel for the Director of Public Prosecutions conceded that the defendant was mentally incompetent at the time of the conduct the subject of the charged offence and both parties agreed that an investigation into Mr Cawte’s mental competence to commit the offence of murder could be dispensed with pursuant to paragraph (a) of subsection 269FA(5) of the Act. Nevertheless, I reviewed the evidence bearing on this issue. In addition to lay person and police witness statements, the materials before the Court included reports from two very experienced forensic psychiatrists; one by Dr Craig Raeside dated 24 November 2017 and one by Mr Cawte’s treating psychiatrist, Dr Pei Lim, dated 5 March 2018.
[5] Whether section 269F is substantive or procedural is of no moment in the circumstances of this matter because I would adopt the same approach and come to the same decision whichever form of section 269F applies.
Both reports presented a comprehensive investigation into and analysis of Mr Cawte’s mental state as at the time of the conduct in question. Both confirmed that Mr Cawte suffers from schizophrenia, undiagnosed as at the time he engaged in the conduct in question. Schizophrenia is a recognised mental illness falling within the definition of mental impairment as provided for in subsection 269A(1) and, as such, satisfies the requirement in the chapeau to section 269C that Mr Cawte was, at the time, “suffering from a mental impairment”.
According to Dr Raeside:
[T]here is strong corroborative information to indicate that Mr Cawte was suffering a psychotic illness at the time of the death of his brother. This had probably been present for at least a year, probably longer, beforehand and unfortunately was misdiagnosed at the time of an earlier admission in November 2016, even after the initial presentation was highly suggestive of psychosis.
I do not stay to summarise the factual basis relied upon by Dr Raeside in support of his analysis and ultimate opinion. I am satisfied that the ultimate opinion expressed by Dr Raeside is soundly based in the evidence that was before him. Dr Raeside concluded:
[I]n my opinion it would appear that despite the intensity of the psychosis Mr Cawte knew that (sic) nature and qualities of his actions in killing his brother with a firearm and there is no indication to suggest that he was totally unable to control his behaviour, although influenced by the delusions. Rather, it would be my opinion that he would have been unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions, at the time probably feeling that he was helping his brother, saving him, or in some other way protecting him from the range of forces that Mr Cawte was experiencing in his delusional thinking. There might have been some acknowledgement but (sic) what he had done would need police involvement, but overall, on a balance of probabilities, I believe that he was impaired in his reasoning.
I therefore would support a mental incompetence defence in this matter.
[Emphasis in the original]
Dr Lim, Mr Cawte’s treating psychiatrist, expressed the view that Mr Cawte’s history and presentation was consistent with a diagnosis of paranoid schizophrenia characterised by auditory hallucinations, delusions of reference, and persecutory and bizarre delusions. At the time of the conduct constituting the charged offence, Mr Cawte was suffering from an untreated schizophrenic illness.
His delusional thinking and auditory hallucinations convinced him that his beloved twin would be tortured and killed. His reasoning was impaired by the barrage of messages he was receiving from the voices and the universe, and by his overwhelming distress and fear. His actions were driven primarily by the need to save his beloved brother from a painful, torturous death so that he could be reincarnated to a safer place. As a result of his psychosis, he was unable to reason with a moderate degree of sense and composure about the moral wrongfulness of his conduct. It could be argued that his subsequent actions in confessing to the police reflected some awareness of the legal wrongfulness of his conduct. Alternatively, it could also be viewed as him obeying the universe’s instruction to hand himself in. I believe a combination of the close bond between the twins and his disordered thinking meant that Mr Cawte would have chosen a solution that would “save” his brother, even if he knew that it was legally wrong. Therefore on balance, I would support a mental impairment defence …
[Emphasis in the original]
Again, I do not stay to set out the full reasoning and analysis of Dr Lim. I am satisfied that the ultimate opinions expressed by Dr Lim find substantial support in the evidence that was before her.
Section 269D of the Act (in its earlier and current form) provides for a presumption of mental competence. A person’s mental competence to commit an offence is to be presumed unless, following an investigation in accordance with the requirements of the Act, the person is found to have been mentally incompetent to commit the offence. The onus of demonstrating mental incompetence falls on the person claiming the defence and is to be satisfied on a balance of probabilities.
Having reviewed the evidentiary materials gathered by the Director of Public Prosecutions including the two expert psychiatric reports just referred to, I was satisfied on the balance of probabilities that, at the time of the incident resulting in the death of Mr Cawte’s twin brother, Mr Cawte was suffering from a mental impairment, namely a mental illness within subsection 269A(1) and that, as a consequence, he did not understand the wrongfulness of his actions. For these reasons, I found at the hearing of 9 August 2018 that Mr Cawte was mentally incompetent to commit the offence of murder at the time of the unlawful killing.
Objective element of the offence
Having made the finding as to mental incompetence in accordance with the procedure provided for in section 269FA, I then had to determine in accordance with the procedure set out in section 269FB whether or not the objective element of the offence of murder had been established. The objective element is that Mr Cawte’s actions caused the death of his twin brother. The onus rests with the prosecution to establish the objective element and to do so beyond reasonable doubt.
At the hearing on 9 August 2018, counsel for the Director identified the witness statements that the Director relied upon as relevant to the question of mental impairment and also as establishing beyond reasonable doubt that Mr Cawte committed the objective element for the offence of murder. Those witness statements included a number from various family members, numerous police statements, a statement from an officer of the South Australian Ambulance Service, a series of forensic science expert witness statements and a series of medical expert witness statements. Mr Cawte, both personally to the police and through his counsel in Court, has admitted that he shot and killed his twin brother with the shotgun that is in evidence. There is nothing in the prosecution witness statements to cast doubt on the reliability of that admission and much that is consistent with or supportive of its reliability. The prosecution and the defence, by agreement, have asked the Court to record a finding pursuant to subsection 269FB(2) that the objective element of the offence is established. On 9 August 2018, for the reasons just briefly summarised, I made that finding beyond reasonable doubt. I was also satisfied that the evidence did not give rise to any reasonable possibility that the killing was lawful.
Conclusion
At the conclusion of the hearing on 9 August 2018, I was satisfied beyond reasonable doubt that the objective element of murder had been established. I was satisfied on the balance of probabilities that Mr Cawte had been suffering from a mental illness at the time he killed his brother and that, as a consequence, he did not know that his conduct was wrong. I found Mr Cawte not guilty of murder on the grounds of mental incompetence.
I declared Mr Cawte liable to supervision and made a supervision order pursuant to section 269O and set a limiting term of life. I also ordered that further reports, as required under Part 8A of the Act, be obtained and adjourned the matter for further consideration. Mr Cawte has been detained in the forensic psychiatric institution, James Nash House, since 6 March 2017. It will be a matter for further determination as to whether, and if so the extent to which, Mr Cawte might in the future be released from or permitted periodic release from James Nash House in accordance with conditions of licence.