R v Childs - [2023] SASC 103

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v CHILDS
Criminal Trial by Judge Alone
[2023] SASC 103
Reasons for Decision of the Honourable Justice Lovell
14 July 2023
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - GENERALLY
The defendant was charged with attempted murder. The defendant alleged he was mentally incompetent to commit the offence on the basis he could not reason his conduct was wrong. The prosecution contests that allegation.
The investigation to determine whether the defendant was mentally competent to commit the offence came before me pursuant to Part 8A of the Criminal Law Consolidation Act 1935 (SA).
Held:
1.The defendant was mentally incompetent to commit the offence of attempted murder pursuant to s 269(1)(b).

Criminal Law Consolidation Act 1935 (SA) s 269, referred to.
Evans v The State of Western Australia [2010] WASCA 34; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; R v Bonython (1984) 38 SASR 45; R v NCT (2009) 26 VR 247; R v Porter (1936) 55 CLR 182; Rhoden v Wingate [2022] NSWCA 165; Stapleton v The Queen (1952) 86 CLR 358; Taylor v R (1978) ALR 599, considered.

R v CHILDS
[2023] SASC 103
Criminal
LOVELL J:
Overview:

On 30 October 2018, the defendant shot Mr Barry Evans in the neck and the shoulder. Mr Evans was injured but survived the shooting. The defendant was Mr Evans’ cousin but the two of them had not seen each other for some time. The defendant was charged with attempted murder, and, in the alternative, endangering life. The defendant alleges he was mentally incompetent to commit the offence.
The mental competence of an accused to commit an offence is presumed unless a person is found on an investigation under pt 8A of the Criminal Law Consolidation Act 1935 (SA) (‘the Act’) to be mentally incompetent. The matter came before me as an investigation into the defendant’s mental competence to commit the offence pursuant to pt 8A of the Act.
The defendant was examined by two forensic psychiatrists, Dr Heaney and Dr Furst, for the purpose of the investigation. They both gave evidence for the defendant, and both opined that, at the time of the shooting, the defendant was mentally incompetent to commit the offence. Despite the psychiatric evidence and having elected to not call expert evidence to support their case, the prosecution contended that the defendant was mentally competent to commit the offence. That is, the prosecution submitted that I should not accept the opinions of the two psychiatrists and should find that the defendant has not discharged the onus of proving that he was mentally incompetent to commit the offence of attempted murder.
Conduct of the hearing
In Rhoden v Wingate, Sheller JA wryly observed:[1]
In an Arcadian forensic setting, if expert evidence is to be used, a party would first put its primary factual material before the court either in chief or in the course of cross-examining its opponent’s witnesses and then call expert witnesses to express opinions based on assumptions of fact that that party claimed the court would find proved to its satisfaction on the evidence. In practice that order of events is rare.
[1] [2002] NSWCA 165 at [1].
Neither Dr Furst nor Dr Haeney were asked to give their opinions on assumed facts. Both were provided with information by way of statements and documents that they were then asked to consider. However, not all the information provided to Dr Haeney was provided to Dr Furst. Further, both Dr Haeney and Dr Furst had seen the defendant in a clinical setting before the alleged commission of this offence. Both had access to their own notes plus various hospital records. Not all of these records were tendered.
Both Dr Furst and Dr Haeney are experienced witnesses. Their reports set out in detail the facts and information which they considered when arriving at their opinions. It was agreed that the psychiatrists were entitled to rely on the witness declarations and other records (as was I) with no witness being required for cross examination. The defendant admitted the objective facts of attempted murder.
I mention these matters not as any criticism of counsel in this case. Indeed, it was a very sensible way to approach this case as the parties both agreed that the facts were not in dispute.
The prosecution called one witness, namely, Brevet Sergeant Watts. He gave evidence regarding the police investigation. The prosecution also tendered several exhibits including a report of Dr Ngyuen and a report of Dr Pandit. Dr Pandit examined the defendant after he had been arrested and before he was placed in custody.
I have also taken into account the police interview with the defendant after he was detained. The video recording was tendered. I have used the transcript of the interview bearing in mind that it is the video recording which is the actual evidence. I have also had regard to the audio tapes of the prison calls made or received by the defendant.
The defendant called Dr Heaney and Dr Furst. Their reports were tendered and they were cross examined. The defendant called no other evidence. I will refer to some of these exhibits, where necessary, in these reasons.
The case was approached on the basis that the reports of Dr Furst and Dr Haeney set out all the material matters they relied on and I was therefore not required to make any findings of fact unless counsel pointed out factual errors in the reports. As it transpired Mr Lesses, counsel for the prosecution, did point out some factual errors. On those occasions, both Dr Furst and Dr Haeney accepted the corrections; it was therefore not necessary for me to make a finding.
I have approached this matter on the basis that the facts relied upon by Dr Haeney and Dr Furst have been established on the balance of probabilities. It is not necessary for me to make particular findings of fact. As the facts were not in dispute, the prosecution challenged what inferences could or should be drawn from that information provided.
Having considered all the evidence, I find that at the time the defendant shot Mr Evans he was mentally incompetent to commit the offence of attempted murder. My reasons follow.
Defendant’s medical history
To put into context the events of 30 October 2018, it is necessary to consider the defendant’s personal and medical history prior to the shooting. His medical history is not without its complications.
Dr Heaney and Dr Furst both examined the defendant, had regard to his personal and medical history, took into account the facts of the offending and provided their opinions on the issue. As it transpired, Dr Heaney had treated the defendant prior to the shooting. I have substantially relied on the history Dr Heaney obtained. The prosecution did not contest that history, only the inferences that could be drawn from it.
The defendant is currently about 46 years old. His criminal antecedent report contains several different dates of birth. The defendant’s father suffered from paranoid schizophrenia but is now deceased. When the defendant was about seven years old his father was sent to prison and his mother formed a relationship with his father’s twin brother. His stepfather was physically violent towards him. The defendant endured a difficult upbringing being neglected and abused, and from the age of 14 years he was regularly before the Children’s Court, as it then was. The pattern continued as an adult with his offending becoming more serious. When he was approximately 20 years old, he committed three robberies and served time in prison. He was regularly in and out of gaol from that time. Over the years, he has been convicted of numerous offences of dishonesty and of violence.
On 22 October 2016, the defendant was charged with theft, aggravated possessing a firearm without a licence, possessing a prohibited weapon and keeping an explosive (‘the 2016 offending’). He was convicted and sentenced to a term of imprisonment with a non-parole period expiring around the time of this offending.
The defendant experimented with illicit drugs including heroin, cocaine, methamphetamine, cannabis, ecstasy and LSD. He denied using methamphetamine on a regular basis, but the toxicology report demonstrated he used methamphetamine leading up to the shooting.
Mental health
Prison records indicate that the defendant was seen once by the psychiatrist Dr Raeside at the Adelaide Remand Centre on 19 June 2007. No further details are available. The defendant consulted with a psychiatrist, Dr Jennings, at the Yatala Labour Prison on 30 June 2010 and 4 August 2010. Again, no further details are available.
On 11 August 2015, the defendant had been arrested after breaking into his daughter’s house and smashing a window. He later presented to the Lyell McEwen Hospital and a risk assessment was conducted. He presented to the hospital due to a sore on his arm, and, at the end of treatment by the Emergency Registrar, he stated he was hearing voices and had been hearing voices for approximately a week. He told health staff that he had been released from prison after serving a 20‑year sentence and denied the use of illicit substances. A mental state examination noted that the defendant was generally cooperative with the interview process but had poor eye contact. The Emergency Registrar concluded there was no evidence the defendant was psychotic or had a disorder of “thought form or delusional ideas”. However, as the defendant had reported hearing voices when he was about to be sent back to the cells, the Registrar considered the most likely reason for his presentation was that he was malingering.
At the time of his arrest for the 2016 offending, the defendant told police that the bag was given to him “by Intel and that the items weren’t his.” Dr Furst, at the request of the Magistrates Court, interviewed the defendant on 25 November 2016 for the purpose of preparing a report. Dr Furst attempted to explain the nature and purpose of his assessment, but the defendant refused to be interviewed. Dr Furst noted that the defendant was polite and appropriate but insisted that he was innocent of all charges. He said that “army Intel” had been watching him “from a distance” and that if Dr Furst retrieved “all their evidence” it would show that he had not been making bombs. The defendant refused to participate any further in Dr Furst’s examination.
Dr Furst, in his report to the Court dated 6 January 2017, stated that the defendant’s presentation suggested “that he may be suffering from persecutory or paranoid delusions possibly associated with auditory hallucinations consistent with a psychotic episode.” Dr Furst noted that it was relatively unusual to develop a psychotic episode de novo at age 40. Dr Furst observed that the defendant had a lengthy criminal history and had previously been assessed as malingering psychotic symptoms in order to avoid custody. With those caveats, Dr Furst recommended that the defendant be admitted to James Nash House for assessment.
The defendant was admitted to James Nash House from 9 January 2017 to 18 January 2017 under the supervision of the psychiatrist, Dr Haeney. On admission, the defendant initially denied experiencing auditory hallucinations but was often seen smiling incongruously; he remained extremely guarded about what he was thinking. During his admission, the defendant admitted he was experiencing auditory hallucinations of male and female voices that were intermittent and told him to harm others. He also reported that he thought other people could read his thoughts and, when pressed on that issue, his speech became disorganised. The defendant was diagnosed with schizophrenia. He was prescribed Quetiapine and referred for ‘follow-up’ in the prison psychiatric clinic.
The defendant returned to James Nash House on 24 May 2017 for further management of his psychosis. Although he was seen to be relatively settled, he displayed incongruent laughter. The medical records report that he stated he had ongoing auditory hallucinations of a derogatory nature and, at times, there was a “running commentary”. The defendant reported that he believed he had been implanted with a device by the government that he referred to as “intel” that he believed was monitoring him and was also able to control his thoughts and body. He referred to this process as “mob stalking”. The defendant was assessed as having schizophrenia with a well-entrenched delusional system that had not responded to the prescribed Quetiapine.
Dr Nguyen, in a report to the District Court dated 28 August 2017, whilst sceptical of some of the defendant’s comments about his mental illness, thought it likely he was suffering from a psychotic illness. He based that opinion on his interview with the defendant and the inpatient assessments whilst the defendant was at James Nash House. Dr Nguyen thought it likely that the defendant experienced symptoms of persecutory delusions relating to “Intel and mob stalking” as well as experiencing auditory hallucinations. Dr Nguyen considered that the defendant was suffering from schizophrenia but also met the criteria for an antisocial personality disorder.
Despite that diagnosis, Dr Nguyen did not support a defence of mental incompetence for the 2016 offending. The defendant, on 20 October 2017, was sentenced in the District Court for that offending, and some other minor offending. He was sentenced to imprisonment for two years, one month and six days with a non-parole period of 16 months backdated to commence on 22 October 2016 when he was first taken into custody.
The defendant was assessed by the Outer Southern Community Mental Health Team on 1 August 2018. The defendant reported feeling well and he denied any symptoms. However, the following day his Community Corrections Officer expressed concern that the defendant was not taking his medication, was paranoid and had removed his SIM card from his phone to prevent being tracked. The defendant also thought he was being followed.
The defendant was then seen at the Emergency Department at Noarlunga Hospital on 14 August 2018 after he had been taken into police custody due to breach of bail conditions; he had tested positive for methamphetamine and also possessed a black plastic firearm. At that time, he reported suicidal ideation. He expressed a fear of going to prison due to hearing voices which he described as female and “constant but then they go away”. He said they tell him to kill someone such as a paedophile if he were in prison with one. He asked to be detained to get back to James Nash House. It was noted he was being treated with Quetiapine and another anti-psychotic, Aripiprazole. Following an assessment, the decision was made that the defendant did not require admission to hospital. When told this, the defendant became verbally aggressive and told the assessor that it would be his fault “if he killed himself or another person”.
Although the defendant was expected to remain in custody, by 18 October 2018 he had been released. During a phone call from his care coordinator on 26 October 2018, the defendant indicated he remained compliant with his medication although reported some side-effects. He denied feeling paranoid, or hearing voices. A planned visit to the defendant on 28 October 2018 did not occur due to a staff absence, but, in a phone call, the defendant indicated he felt well and had no concerns. After attempting to see the defendant the following week, the community care coordinator was informed of the defendant’s arrest.
The defendant’s next psychiatric review occurred on 13 May 2019 and was conducted by Dr Haeney in his capacity as a visiting psychiatrist to the Mount Gambier Prison. On examination, Dr Heaney considered the defendant to be emotionally labile, floridly psychotic (preoccupied with witches and warlocks) and in need of admission to hospital. At that time, the defendant was not on medication, and this was restarted. Dr Heaney arranged for him to be transferred to Yatala Labour Prison for increased support and monitoring while awaiting a bed in James Nash House. He was subsequently reviewed by colleagues of Dr Heaney who concurred with his opinion that the defendant was unwell.
The defendant was subsequently admitted to James Nash House between 13 March and 11 May 2020. The defendant had been admitted from prison where he had been remanded on the current charges. It was noted that his “psychotic symptoms included derogatory command hallucinations, graphic visual hallucinations, bizarre delusions regarding aliens, witches and warlocks, and thought broadcasting”. The defendant described both auditory and visual hallucinations occurring over 20 years. Due to his lack of response to medication, Dr Heaney considered that the defendant was suffering from treatment resistant schizophrenia. The defendant currently remains in James Nash House.
Discussion
The prosecution submitted that it was open to me to find that the defendant, prior to the shooting, did not suffer from schizophrenia. The submission was based on some doubts expressed by Dr Nguyen in his report to the Court in 2017 relating to the 2016 offending and Dr Heaney and Dr Furst in their reports and evidence in this matter. Dr Heaney and Dr Furst, while accepting that they held some doubts about the truthfulness of the defendant in relation to some matters, thought there was objective evidence supporting the diagnosis of schizophrenia. This was particularly so in relation to the defendant’s behaviour whilst in James Nash House. While accepting that providing a confident diagnosis was difficult, both Dr Furst and Dr Heaney considered that the evidence established that the defendant, prior to the shooting, suffered from schizophrenia.
I accept their opinions, which are based on not only their assessment of the defendant but also on the objective evidence of his admission in James Nash House in 2017. I find that, prior to the shooting, the defendant suffered from schizophrenia with symptoms of persecutory delusions relating to “Intel and mob stalking”. While I find that this was his underlying psychiatric condition, the real issue is whether the condition was operative at the time of the shooting.
The events surrounding the shooting
On 30 October 2018, the defendant, at around lunch time, cancelled his appointment with the Department of Corrections citing a fatty liver. However, the defendant had told Dr Furst that he had consumed a small amount of methamphetamine the night before. Thus, on the prosecution’s case, he had lied to the Department of Corrections and had cancelled his appointment because of his methamphetamine consumption.
The defendant and his partner, Miss Hannah Ivens, attended Centrelink at around 12.30pm. They left at 1.30pm. Centrelink’s CCTV footage captured the defendant acting in an apparently normal manner; he was waiting in line, scrolling on his phone. That footage was played in Court and tendered.
Later that afternoon, the defendant attended Mr Daniel Bowshire’s house; he is the cousin of the defendant and brother to Mr Evans. The defendant asked Mr Bowshire for his gold watch. It appeared that the defendant had an unexplained, sudden desire to retrieve the watch. The existence and whereabouts of the watch was unclear. From an exchange with Mr Bowshire, the defendant apparently formed the view that his aunty (Mr Evans’ mother) or Mr Evans were likely to have the watch.
Mr Bowshire called his mother warning her and Mr Evans of the defendant’s arrival. His warning was that “Billy [the defendant] was coming over to fight ‘Boof’ [Mr Evans]”.

In his statement, Mr Evans described a positive childhood relationship with the defendant which broke down, many years before the shooting, when the defendant was in prison. The defendant had threatened Mr Evans. He did not report the matter to the police, but he kept away from the defendant and said that he “didn’t see or hear of him again over the next 23 years or so until Tuesday, 30 October 2018.” Mr Evans reported no outstanding issues or debts between him and the defendant over that period.
Mr Evans described the phone call made by his brother alerting him, his mother, and the other occupants to the fact that the defendant intended to visit about the watch which “no one knew anything about”. The defendant soon arrived and began banging on the door. He demanded to be let in. Mr Evans heard his mother telling the defendant to leave. Mr Evans approached the door and offered to fight the defendant, who did not respond but just stared at Mr Evans. Importantly, Mr Evans said that the defendant looked shocked by his appearance at the door. Mr Evans said that the defendant’s “eyes looked horrible, and he looked all revved up. He then said something to me but I don’t know what it was”. Later, Mr Evans said the defendant “was staring up at me, he didn’t take his eyes off of me. I remember the look on his face, like a wild animal, and he looked at me as if I was a rabbit or a snake, and he was hunting me. He seemed to be getting pleasure from it”.
There was some pushing and pulling at the screen door before the defendant put his right hand into his tracksuit pants pocket and took out a “silver, very small item”. Initially Mr Evans did not realise what it was and asked the defendant whether he had “a Taser or something?”. The defendant held the metal item towards Mr Evans is face with his arm outstretched, squeezing it rapidly as if trying to fire it. Initially it did not fire. Mr Evans then realised that the item was a gun with a “tiny barrel”. He began to move away but as he did, he saw sparks from the gun and heard a loud bang; he felt pain to the right side of his neck. He was knocked to the ground. Mr Evans stood up and grabbed a baseball bat from beside the door to try and knock the gun out of the defendant’s hand. The defendant attempted to evade this while simultaneously attempting to fire the gun again. The defendant reached through the gap in the screen door and shot Mr Evans in his upper right shoulder blade causing him to fall to the ground again. The defendant was then seen to run to a waiting car driven by Miss Ivens.
The defendant and Miss Ivens were later arrested at Miss Ivens’ family home. The defendant had showered and cleaned his clothes and shoes before the arrival of police. Some of his clothing was in the washing machine and some soaking in the laundry basin. Despite a police search, no gun was recovered.
The police interviewed the defendant who stated that he had an alibi as he had been at Miss Ivens’ family home all day and argued his innocence. In subsequent telephone calls from prison, which were recorded, the defendant suggested that he had acted in self-defence. The record of interviews and recorded prison calls were tendered.
Mr Evans was treated at the Flinders Medical Centre with one bullet being removed from the right rear of his skull having penetrated several centimetres under the skin but not penetrating the bone. The second bullet fractured Mr Evans’ shoulder. Fragments of the second bullet were removed from his back by the right shoulder blade.
This general summary of the background was not disputed. Mr Evans was not called to give evidence and his evidence was tendered on the basis that the Court (and the experts) could accept it. Doctors Heaney and Furst both relied on Mr Evans’ evidence as to the general lead up to the offending and his description of the defendant’s behaviour at the time of the shooting.
Before turning to an analysis of the psychiatric evidence it is appropriate to deal with the legal principles.
Mental competence
The defendant is presumed to be mentally competent to commit the offence.[2] That presumption is rebuttable and s 269C of the CLCA provides the mechanism whereby that issue is determined. Relevant to this case is whether that presumption can be rebutted pursuant to s 269C(1)(b), which provides:
[2] Criminal Law Consolidation Act 1935 (SA) s 269D.
269C—Mental competence
(1) 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—
…
(b)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; …
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.
Section 269A of the Act defines mental impairment. Relevant to the defendant, a mental impairment includes a mental illness which is a “pathological infirmity of the mind (including a temporary one of short duration)”.[3] I have already found that prior to and after the offending the defendant suffers, and continues to suffer, from a relevant mental impairment, namely, schizophrenia. The issue for decision is whether, in consequence of this mental impairment, at the time of the offending the defendant did not know that his conduct was wrong; that is, the defendant could not reason about whether the conduct, as perceived by reasonable people, was wrong.
[3] Criminal Law Consolidation Act 1935 (SA) s 269A.
The test
The defendant submitted that he has satisfied, on the balance of probabilities, the test as set out in s 296C(1)(b) of the Act. That is, the defendant submitted he has established that, at the time of the shooting, he could not reason about whether his conduct, as perceived by reasonable people, was wrong.
Two issues arise. First, what does the word “wrong” mean in the context of the legislation. Second, does the test require the defendant to establish that he had a complete incapacity to know that his conduct was wrong; that is, that he had a total incapacity to reason that his conduct, as perceived by reasonable people, was wrong.
While the Act now provides a code for determination on the question of whether a particular defendant was mentally incompetent at the time of the act charged, the common law that existed prior to the enactment of s 269 remains relevant to the interpretation of those provisions. So much can be seen by the note contained within s 269C(1)(b) that excludes from consideration whether the defendant could reason with a moderate degree of sense and composure as set out in R v Porter (‘Porter’).[4]
[4] (1936) 55 CLR 182.
Prior to the enactment of pt 8A of the Act, the law in South Australia was governed by the decisions in Porter and Stapleton v The Queen (‘Stapleton’).[5]
[5] (1952) 86 CLR 358.
In Porter, Dixon J clarified that what is ‘wrong’ is to be judged from the standards of everyday, reasonable people. He said in a jury direction:[6]
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. What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standard of reasonable people.
[6] R v Porter (1933) 55 CLR 182, 190.
In Stapleton, the High Court considered the correctness of an insanity direction that “the accused must satisfy [the jury] upon a balance of probabilities that he suffered from a disease, disorder or disturbance of the mind of such a character as to prevent him from knowing what he did was wrong, that is against the law”.[7] The High Court held that the direction contained an error; the correct test is whether the accused appreciated that the act was wrong according to the ordinary standards of reasonable people, not whether the accused was capable of understanding his act was contrary to law.[8] However, the High Court observed that in cases of murder the difference between a capacity to understand the wrongfulness, as opposed to the legality of the act, often might not be of much significance, but in some cases it might be decisive.[9] The Court said:
This perhaps means that in cases of serious crime, the fact that is punishable by law is enough to show the prisoner that it is something which he ought not to do, although the final test is that it is wrong according to the standard adopted by reasonable men. The truth perhaps is that, from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong … he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law [10]
[7]    Stapleton v The Queen (1952) 86 CLR 358, 364.
[8]    Stapleton v The Queen (1952) 86 CLR 358, 375; Evans v The State of Western Australia [2010] WASCA 34 at [28] per McLure P.
[9]    Stapleton v The Queen (1952) 86 CLR 358, 370-371.
[10] Stapleton v The Queen (1952) 86 CLR 358, 375.
Thus, at common law, there is no requirement that an accused know the act is wrong in the sense of it being contrary to law; it is knowing right from wrong, not legality from illegality. There is nothing in the text or context of s 269C that would suggest a different approach should be adopted. That is, knowledge (short of understanding) that to attempt to kill, for example, is punishable by law does not prevent a finding of mental incompetence. Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct.[11] To put that another way, matters which would connote an understanding by a person of sound mind may not be operative if a person is incapable of reasoning rationally because of a mental impairment. That said, although the test is concerned with whether a defendant had the capacity to know that reasonable people would regard their conduct as wrong, as the High Court observed in Stapleton, a defendant’s comprehension as to whether their actions were legally wrong is not irrelevant to that evaluative task.
[11] Evans v The State of Western Australia [2010] WASCA 34 at [31] per McLure P.
I turn next to the question of whether the defendant has to establish that he or she had a complete incapacity to know that their conduct was wrong. The text of the section certainly suggests a complete incapacity is the correct test. The note to s 269C(1)(b) specifically excludes from consideration whether the defendant could reason with a moderate degree of sense and composure as set out in Porter.
Under s 269C(1)(b) of the Act, the defendant must prove that he or she does not know that their conduct was wrong. The term 'know' means understand, appreciate or comprehend. An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from having the capacity to know that he or she ought not do the act. The wording of the section supports the interpretation that the defendant must establish that, at the time he fired the shots at Mr Evans, his mental impairment resulted in a complete incapacity to reason as to what is right or wrong according to ordinary standards.
Dr Haeney was cross examined about his understanding of the test set out in s 269C(1)(b) of the Act. In particular, he was questioned about whether the defendant had a total incapacity to reason or whether he retained some capacity. Dr Haeney, correctly in my view, answered that question in the context of the wording of s 269C(1)(b). That is, he conceded that, in a general sense, the defendant retained a capacity in that he could do and say things leading up to the shooting that demonstrated a capacity to reason. That, however, as Dr Haeney observed, is not the way the test is worded. The test is whether he retained any capacity to reason that his conduct was wrong as perceived by reasonable people. Dr Haeney was of the opinion that, on the balance of probabilities, he had no capacity to reason that his conduct was wrong as perceived by reasonable people.
I agree with Dr Haeney’s understanding of the test. The test is not directed towards an incapacity to reason on anything and everything; it directs attention to a narrower issue. The test requires the court to consider whether a defendant has a total incapacity to know that their conduct was wrong; that is, that they could not reason that their conduct was wrong as perceived by reasonable people. The relevant time is the time the offence is committed. In this matter, the relevant time is when the defendant fired the gun.
The expert evidence
Evidence of Dr Haeney
Dr Haeney’s report dated 2 October 2020 was tendered and he gave evidence in support of his opinions. Unsurprisingly, Dr Haeney’s qualifications and experience were not challenged; he is well qualified to express an opinion in this matter.
In his report and in his evidence, Dr Haeney accepted that there was conflicting information about the defendant’s mental state around the time of the shooting. For example, in the weeks and months leading up to the shooting he presented as subjectively and objectively well to mental health staff, yet his supervising Community Corrections Officer reported unambiguous symptoms of psychosis. The defendant’s self-reports were also inconsistent. Whether he was taking his medication regularly is also unclear.
Dr Haeney stated:
His account of the offence is somewhat puzzling, potentially related to ongoing symptoms that urge him not to trust us and not to tell us anything. He gives a rather vague account of voices telling him to do it, but initially with little depth to his explanations. With persistence, and repeated interviews, he is able to provide further background to his beliefs about aliens controlling the world using their technology to infiltrate humankind, working with governments and a shadowy group he calls 'Intel' to monitor us. However, there appears little direct link between these beliefs and his conduct at the material time, other than one comment that the aliens were urging him to recover their technology. In a subsequent interview he reported the main motivation was the watch's sentimental value. He does, nonetheless, report clear symptoms of psychosis in the form of command auditory hallucinations urging him to get the watch and shoot the victim.
His conduct does appear to be odd, to the victim and other family members as well as to me. To my knowledge, there is no other plausible motive for such a sudden, unheralded attack. The victim claimed to know of no reason why his cousin would attempt to kill him. He denied any dispute between them. He commented on Mr Childs' wild appearance and lack of discussion about the supposed reason for his attendance. Other witnesses and family members confirm no known reason for the attack, other than Mr Childs apparently seeking a watch from several years ago, despite another cousin agreeing to pay the debt. On arrival there seemed to be no conversation about the watch and instead Mr Childs tried to force his way in and shot the victim twice. In the police interview Mr Childs did make a comment that he wondered if his cousin had been responsible for the attack on him by masked men the previous week, although he has since denied believing this.
Dr Haeney noted that, after the shooting, the defendant fled and then sought to deny responsibility. Prior to the police arriving, the defendant changed his clothes and washed the gunshot residue from his hands. At the time of his arrest, the defendant denied any involvement in the offending and maintained that position during subsequent interviews conducted by the arresting officers. In subsequent (recorded) telephone conversations from prison, the defendant maintained that he was not involved. Dr Haeney considered that the defendant’s ability to “dissemble” so convincingly was a “cause for concern when considering the veracity” of the defendant’s subsequent accounts of what occurred. Dr Haeney considered these actions relevant to whether the defendant “did not know his conduct was wrong”. However, Dr Haeney noted that there is a difference between knowing that an act is illegal and knowing it is wrong.
The fact that the defendant used the expression “robotting or robot” to describe the sensation that he was being controlled by outside forces, like the voices, was a matter that Dr Haeney thought was of significance. Dr Haeney described it as a symptom of schizophrenia called ‘passivity phenomena’. The defendant’s use of the expression was an effective description of the experience.
The videotaped records of interview between the police and the defendant (and transcripts) were supplied to Dr Haeney. Having watched the videotapes, Dr Haeney considered that references by the defendant to “intel” was consistent with “a psychotic” reference rather than him seeking assistance from the “intelligence section” of the police force. The defendant in the years leading up to the shooting had used the expression “intel” and in circumstances where it was obviously used in a psychotic manner. Dr Haeney thought, in the context in which it was used in the interview, it was more likely to be a psychotic symptom than any other explanation.
Having considered the material, Dr Haeney opined:
He was clearly sufficiently aware of the illegality of his conduct and potential consequences so as to try to evade responsibility for the offence. However, I believe there is evidence that he was not able to reason about whether his conduct, as perceived by reasonable people, was wrong. If he was experiencing persecutory delusions in the weeks beforehand, exacerbated by a real attack on him the previous week, also experiencing auditory hallucinations commanding him to harm the victim, then on balance I am of the opinion that this would have affected his ability to reason about whether his conduct was wrong. I form this opinion on the balance of probabilities, acknowledging that there is significant conflicting or inconsistent information from the sources available. I am persuaded most by his pre-existing diagnosis of schizophrenia, some contemporaneous evidence of active mental illness, the rather bizarre nature of the attack and the current lack of an alternative plausible motive. However, this opinion is offered not without some reservations and I reserve the right to reconsider should new information come to light.
The prosecution put to Dr Haeney the following significant matters which it suggested demonstrated that the defendant had a capacity to reason right from wrong at the time of the shooting:
·CCTV footage of the defendant lining up at the Centrelink Office appeared to show him acting normally leading up to the shooting. Further, the defendant called his correctional supervisor and cancelled his appointment.
·That the defendant was not in a floridly psychotic state leading up to the shooting.
·The shooting was deliberate and purposeful.
·The evidence of Mr Evans that the defendant had a “revved up” look in his eyes and that prior to, and at the time of, the shooting there was no conversation about a watch.
·The defendant’s ingestion of methamphetamine prior to the shooting may be a reason for his “revved up” look.
·The defendant lied to the police and covered up his offending.
·Much of the evidence of psychotic symptomology came from the defendant himself. Given the problems with his credibility, the content and veracity of his self-reports were questionable. There was no consistent theme about the voices the defendant is alleged to have heard.
·There is no obvious or solid causal connection between the voices the defendant claims to have heard and acted upon when committing the offence.
·There were potential motives to commit the offence, namely, that the Evans family did in fact possess a watch of the defendant. Also, the defendant had been subject to an assault in the driveway of his house a few days before the shooting and may have blamed Mr Evans (although there was no evidence Mr Evans was involved).
·The defendant’s reference in the interview to wanting the involvement of “intel” may have been a genuine attempt by him to involve the police intelligence section.

Dr Haeney accepted that he was aware of those matters, and he had taken them into account. He stated that those matters had given him cause to be cautious about the matter. However, even taking into account the above matters, he was still of the opinion, on the balance of probabilities, that the defendant, at the time of the shooting, could not reason about whether the conduct as perceived by reasonable people was wrong. As discussed earlier, I consider that Dr Haeney applied the correct test.
Evidence of Dr Furst
Dr Furst’s qualifications and experience were not challenged. He is well qualified to express an opinion on the issues arising in this matter.
Dr Furst interviewed the defendant initially on 25 October 2019 at the request of the defendant’s solicitors. He spoke with the defendant for about 90 minutes. Dr Furst considered that the defendant was not telling him the truth about some aspects of the offending and reported his impression to the defendant’s solicitors. He reinterviewed the defendant at Yatala Labour Prison on 17 January 2020.
Dr Furst’s report dated 24 May 2020 details his contact with the defendant from both the first and second interviews. At the completion of his second interview, Dr Furst considered the defendant to be “significantly unwell” and recommended that he be admitted to James Nash House and undergo a trial with the medication Clozapine. The defendant was admitted to James Nash House on 11 May 2020 and Dr Furst reinterviewed him on 22 May 2020.
Dr Furst reviewed the defendant’s psychiatric history set out earlier in these reasons. Dr Furst opined:
Mr Childs is a 44-year-old man who presents for psychiatric assessment having taken a firearm to his cousin's house and demanding return of a watch, before shooting the victim and then decamping from the scene. Mr Childs is a man who was genetically predisposed to the development of schizophrenia given his father also suffered from the illness and it appears that he has suffered from active psychosis for many years, possibly as far back as 2010 as he has indicated, but almost certainly from 2015 when he presented to the Lyell McEwin Hospital reporting psychotic symptoms and seeking hospitalisation and treatment. By the time of his offending and my assessment in 2016 he had an entrenched set of delusional beliefs involving monitoring and persecution from 'Intel' and this was subsequently confirmed during his first admission to James Nash House in 2017.
He had two admissions to James Nash House, during which it was proved that his illness was resistant to standard treatment and surprisingly, there was not thought to be a clear link between his bizarre offending behaviour in taking a pipebomb to a shopping centre and his chronic delusions, nor was he thought to require further inpatient treatment, but allowed to discharge himself and return to prison taking only quetiapine, a medication that had proven to be only partially effective at best.
Mr Childs' report that he was still hearing voices when he left James Nash House is consistent with the discharge summary indicating that he was discharged before an alternative to risperidone depot could be started. In turn, this supports Mr Childs' claim that his illness got worse when he left prison and stopped taking his prescribed quetiapine a few weeks before the alleged offences. I do not believe that drug use played any significant role in his psychotic symptoms or offending behaviour.
Dr Furst considered that prior to the shooting the defendant had, for at least several years if not longer, suffered from paranoid schizophrenia. Whilst that diagnosis was not beyond doubt, Dr Furst was reasonably confident that there was objective evidence to support the diagnosis.
Like Dr Haeney, he considered the principal issue to be whether that condition was operative at the time of the shooting. Dr Furst concluded that it was and that it deprived the defendant of his capacity to know that his conduct was wrong.
In reaching this conclusion, Dr Furst did not disregard the defendant’s post-offence conduct, particularly his protestations of innocence. Dr Furst considered that the post-offence behaviours of covering up or trying to avoid the consequences demonstrated that the defendant was aware of the nature and quality of the conduct and that it was illegal, rather than wrong. This was particularly so for the defendant given his lengthy criminal history. Dr Furst considered Mr Evans’ description of the defendant’s behaviour an important factor as well as the defendant’s description that he felt “robotted”. This description is consistent with a “little-know symptom of schizophrenia known as a passivity phenomenon”.
Dr Furst opined:
However, he would not have been able to know the wrongfulness of his actions as a result of his florid psychosis and paranoia, perhaps fuelled by Mr Evans allegedly advancing upon him through the doorway with a baseball bat. If Mr Evans was not carrying the bat at the time that Mr Childs shot at him, it does not alter my opinion that he shot in response to his psychotic symptoms.
Dr Furst later conceded, under cross examination, that the defendant’s psychosis was not “florid” at the time. However, that change did not cause Dr Furst to alter his ultimate opinion as to the defendant’s inability to know the wrongfulness of his actions.
Like Dr Haeney, Dr Furst was challenged in cross examination on the significant matters set out earlier in these reasons; I will not repeat them. Like Dr Haeney, Dr Furst accepted that such matters were all relevant and required consideration when coming to a conclusion. Indeed, they made him cautious. However, like Dr Haeney, when taking those matters into account, Dr Furst maintained his opinion that, at the time of the shooting, the defendant was deprived of his capacity to know that his conduct was wrong as perceived by reasonable people.
I find that, like Dr Haeney, Dr Furst applied the correct test.
The approach to the expert evidence
At common law the general rule is that a witness may give evidence only as to matters mediated by their senses. While that generally relates to what a witness saw or heard, it can extend to what a witness tasted, smelt or felt. However, the opinion of a witness is not admissible. A recognised exception to this rule relates to expert opinions. The law recognises that, so far as matters calling for special knowledge or skill are concerned, judges and jurors are not necessarily equipped to draw the proper inferences from the facts stated by witnesses. Thus, a suitably qualified witness may give opinion evidence with respect to matters about which ordinary persons are unable to form a sound judgment about without the assistance of those possessing special knowledge or experience.[12] It is accepted in this matter that the question of mental competence is one in which an appropriately qualified witness could be of assistance to the Court in deciding that question.
[12] R v Bonython (1984) 38 SASR 45, 46-47.
In South Australia, the conditions governing the admissibility of evidence tendered as expert opinion are governed by the common law. Those conditions were outlined by Heydon JA (as His Honour then was) in Makita (Australia) Pty Ltd v Sprowles (‘Makita’):[13]
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R, on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.
(citations omitted)
[13] (2001) 52 NSWLR 705 at [85].
While dealing principally with the question of the admissibility of opinion evidence, Heydon JA’s comments also deal with the question of how a trier of fact should assess the expert evidence.
Consideration
The prosecution accepted that both Dr Furst and Dr Haeney were well qualified to give expert evidence. The prosecution did not suggest that they were anything other than credible witnesses. The prosecution did, during the course of a well-directed cross examination, point to some errors in their recitation of the facts. To their credit, both Doctors accepted the corrections. They were also cross examined on what inferences could, or should, be drawn from various undisputed facts. Much of the cross examination was directed at the unreliability of the defendant’s statements subsequent to the shooting and also to the fact that it was clear that he knew, at least very quickly after the shooting, that what he did was illegal.
As previously discussed, both Dr Haeney and Dr Furst had already considered most of these issues before arriving at their final conclusions. I accept their interpretation of the facts. For example, I accept their interpretation of the defendant’s use of the expression “Intel” during the course of his police interview. The additional matters raised were considered but both Dr Haeney and Dr Furst maintained that those additional matters did not cause them to change their respective opinions.
For the avoidance of doubt, I find that the facts underpinning the opinions of Dr Furst and Dr Haeney have been established. I find that the inferences they drew from the facts were appropriate.
Despite the unanimity of the opinion evidence, and that the facts underpinning the opinions are not disputed (only the inferences to be drawn from the facts), the prosecution submitted that given the caveats expressed by both Doctors, I should not be satisfied, on the balance of probabilities, that the defendant has established that he was mentally incompetent to commit the offence. This raises the issue of where the pre-conditions to admissibility of the expert evidence have been met, as expressed in Makita, how a judicial officer or jury then assesses the relevance and weight to be given to expert evidence particularly when it is accepted that the issue is one in which ordinary persons are unable to form a sound judgment about without the assistance of those possessing special knowledge or experience.
It is a standard jury direction that where expert evidence is unchallenged, the jury, while not obliged to act on the evidence, must not capriciously disregard it. Relevant factors in assessing expert evidence include whether the expert is suitably qualified, whether the assumed facts underpinning the opinion are proved and whether the expert has given their evidence in a partial or impartial manner.[14]
[14] Taylor v R (1978) 22 ALR 599; R v NCT (2009) 26 VR 247, 253.
On a trial by judge alone, the above factors are also relevant. The judge must write reasons that explain how the decision was reached. A capricious rejection of expert evidence simply because it is up to the trier of fact whether to accept the expert evidence is likely to be viewed adversely on appeal. That is not to say that the evidence cannot be rejected. It can, but there must be a proper basis for doing so. That is, I agree that the trier of fact cannot reason that simply because two psychiatrists agree that a defendant was mentally incompetent to commit an offence, they have no role to play in exercising their own independent judgement.
Evidence from a properly qualified expert is generally more reliable than a lay person’s opinion (including a judicial officer’s) because an expert has more information relevant to the matter and the experience of evaluating such information. Clearly a judicial officer must have regard to that. However, I cannot “outsource” the decision and simply defer to the expert evidence. I must exercise my own independent judgement in arriving at a conclusion.
There is a distinction between intellectual autonomy and intellectual individualism.[15] Intellectual autonomy is not incompatible with relying on the thinking of others; thinking for oneself and relying on experts are not exclusive options. That is, thinking for oneself does not mean thinking by oneself. It is important that appropriate weight be given to expert evidence not because judicial officers and experts have the same role but precisely because they have different roles. It is my role to decide the ultimate question of mental competence. The role of the experts is to provide an opinion that will assist me in deciding that question.
[15] Jonathan Matheson and Kirk Lougheed, Epistemic Autonomy (Routledge, 1^st ed, 2021).
I accept that both Dr Haeney and Dr Furst have carefully considered all the relevant facts; they were both impressive witnesses. Both doctors agreed that the data were not of such a clear and unambiguous kind that it definitively resolved the dispute. Both made concessions where appropriate and neither showed any tendency to ignore contradictory data. I could not detect any self-serving bias in their interpretation of the information. To the contrary, both were acutely aware that there were, in this case, several competing hypotheses. For example, both doctors considered that the defendant may have been malingering and/or only partially incapacitated by his mental illness.
When cross-examined, both doctors were able to explain clearly and logically how they had considered those facts that pointed away from their opinions and why the inferences that could be drawn from those matters did not change their final opinion. In doing so, they relied on their expertise to explain how facts, which may appear to a lay person to perhaps be contrary to their opinions, are capable of a quite different interpretation. A good example lies in the interpretation of the fact that the defendant was clearly aware, very quickly, that in shooting Mr Evans, he had performed an illegal act. Both Dr Haeney and Dr Furst were convincingly able to explain how the defendant possessing that state of mind, but suffering from schizophrenia, would still not necessarily have any capacity to determine right from wrong as perceived by reasonable people.
Both Dr Haeney and Dr Furst accepted that their opinions are not entirely objective. In reasoning towards their opinions, both doctors accepted that part of that process included personal judgement based on their training and experience. In psychiatry, experience and training play an important role in reaching any conclusion. That is, there is a degree of subjectivity in reaching conclusions and this case is perhaps a good example of that. Both Dr Haeney and Dr Furst explained that there are matters which may demonstrate an understanding by a person of sound mind, but which may not do so if a person is incapable of reasoning rationally because of a mental impairment. I have no expertise as to when the normal shades into the abnormal in that context.
While I can assess parts of Dr Furst and Dr Haeney’s evidence, for example, whether there is a proper factual basis and whether I consider that bias, conscious or unconscious, is present, the subjective parts of their opinions based on their training and experience I am not qualified to reject. I consider that in these circumstances I should give considerable weight to the opinions of Dr Furst and Dr Haeney. The fact that they both reach the same conclusion is an important factor in this case.
The defendant bears the onus of proof on the balance of probabilities. There is no onus on the prosecution. The defendant must persuade me that at the time of the shooting he was incapacitated by his mental illness and could not reason about whether his conduct, as perceived by reasonable people, was wrong.
I have considered the facts and inferences relied upon by the doctors. They have not, in my opinion, overlooked any relevant matter. As mentioned earlier, I consider that the facts upon which they rely in coming to their opinions have been established. I find that they have given their evidence in a straightforward and honest manner. They have not overlooked or ignored facts or inferences contrary to their opinions.
I agree with the prosecution, and indeed both Dr Haeney and Dr Furst, that the issue is not easy to resolve. However, I am persuaded by, and accept, the opinions of Dr Haeney and Dr Furst.
I find, on the balance of probabilities, that at the time of the shooting the defendant did not know that his conduct was wrong; that is, he could not reason about whether the conduct, as perceived by reasonable people, was wrong.
I find that the defendant was mentally incompetent to commit the offence.
It was common ground that prior to the shooting the defendant had consumed a small amount of methamphetamine. Both psychiatrists considered the operation of s 269C(2) of the Act and whether his mental impairment was substantially caused by intoxication (the ingestion of methamphetamine). Both considered that the methamphetamine did not substantially cause his mental impairment. The prosecution did not seek to challenge that aspect of the evidence. I find that s 269C(2) has no role to play in the context of this case.