R v Clark
[2004] SASC 362
•12 November 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLARK
Criminal Trial by Judge Alone
Judgment of The Honourable Justice Nyland
12 November 2004
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DIMINISHED RESPONSIBILITY
Charge of attempted murder - trial by judge alone - mental impairment defence raised - objective elements of offence made out - whether accused mentally incompetent to commit the crime of attempted murder in accordance with provisions of s 269C - accused knew the nature and quality of his act - presumption of mental competence not displaced - accused mentally competent to commit the crime.
Criminal Law Consolidation Act 1935, ss 269A, 269C, 269G, referred to.
R v CLARK
[2004] SASC 362
The accused is charged with the attempted murder of his mother, Violet Rose Clark at Morphett Vale on 29 January 2003, or in the alternative, causing her grievous bodily harm with intent to do grievous bodily harm. On his arraignment, the accused pleaded not guilty to the charges against him. The defence thereafter raised a defence of mental incompetence. Pursuant to s 269G of the Criminal Law Consolidation Act 1935 (CLCA), I decided to proceed first with the trial of the objective elements of the offence.
On application by counsel for the accused, that trial proceeded before me as a judge sitting alone. By consent, the prosecution thereafter tendered the following exhibits:
P1
Statement of Violet Rose Clark 24/2/03
P2
Statement of Daphne Alison Ritchie Archer 13/2/03
P3
Statement of Heidi Somerville 22/8/03
P4
Statement of Seumas Marwood 3/2/03
P5
Two audio cassettes of conversations at the house and Flinders Medical Centre
P6
Transcript of audio record of interview
P7
Transcript of video record of interview on 30/1/03
P8
Video of interview conducted by Marwood with the accused on 31/1/03
P9
Statement of Jamie Paul Rose 1/3/03
P10
Statement of Phillip John Jeffery 29/1/03
P11
Statement of Shane Smart 29/1/03
P12
Statement of Michael William Prescott 2/2/03
P13
Statement of William James Kelsey 31/1/03
P14
Statement of John Hamilton Liersch 31/1/03
P15
Statement of Amanda Jayne Bratchell 30/1/03
P16
Statement of Peter Robert Clifton 6/8/03
P17
Statement of Daniel Alan Lacey 13/2/03
P18
Two handwritten notes relating to the Klu Kux Klan
P19
Two pages from a magazine entitled “God & Nazis”
P20
Note found in bedroom of accused entitled “Distant Echo”
P21
Statement of Stephen Paul Tasker 13/6/03
P22
Statement of Bradley Hooper 27/5/03
P23
Statement of Robert Alan Pearce 4/6/03
P24
Statement of Grant Allan Norris 17/2/03
P25
Bundle of five photographs of accused taken at Morphett Vale on 29/1/03
P26
Bundle of photographs taken by Norris on 29/1/03 of accused at Flinders Medical Centre
P27
Statement of Grant Alan Norris 17/4/03
P28
Bundle of five photographs marked GAN3 taken by Norris at Flinders Medical Centre of Mrs Clark
P29
Statement of Peter Russell McKenzie 17/3/03
P30
Claw hammer
P31
Bundle of 49 photographs taken 29/1/03
P32
Statement of Victor Botuch 20/8/03
P33
Statement of Christopher Gordon Hefford 5/8/03
P34
Statement of Chris Kostakis 30/6/03
P35
Statement of Doctor Ying Hui Yu 29/7/03
The evidence established that police officers attended at premises at 8 Jackson Close, Morphett Vale, at about 7.44 pm on Wednesday, 29 January 2003 as a result of a 000 call from the accused. The accused said in that call “I think I killed my mum with a hammer”. The operator asked him where he was, and he replied “8 Jackson Court. Please hurry, she’s … she’s still breathing. She’s making a funny noise”. At the house, they located Violet Clark lying on her left side in the hallway. Mrs Clark was bleeding heavily from a depressed skull fracture on the left side of her head. The accused was naked and crouching over Mrs Clark’s body. He had blood on his chest and neck and both arms. He had lacerations across both forearms which appeared to be self-inflicted.
Upon arrival at the house, Senior Constable Marwood activated an audio cassette and recorded conversations which were held with the accused at the house and later in the ambulance en route to the Flinders Medical Centre as well as conversations at the Flinders Medical Centre (P5).
At the commencement of the interview at the house, the accused said to the police “This is my mum. Look at what I have done to her. … I hit her seven or eight times with a hammer … I just lost it for a split second”. Later in the same interview, the accused repeated “I lost it for a split second. I just went crazy. ... She was going to go out because I was yelling at her and I stopped her by hitting her with a hammer”. The accused told the police that he had suffered from schizophrenia since he was aged about 18 years and was required to take Stelazine for that condition. The accused was subsequently conveyed to the Flinders Medical Centre for treatment for the injuries which he had inflicted upon himself.
At about 1.45 pm on 30 January 2003, Senior Constable Marwood conducted a further interview with the accused which was recorded on video (P8). The accused told the police that he had an argument with his mother about watching a movie. He was screaming and yelling at her. His mother went to leave the house. He then took a hammer (P30) from a cupboard and chased her and hit her repeatedly with it. He said he hit her once when she was on the ground then he walked away and came back ten seconds later and hit her again. He initially said he did not know why he did that. When he saw the amount of blood as a result of his mother’s injuries he called 000 and asked for help. He told the police that while he waited for help he cut himself with a razor blade and then ran a bath to kill himself while he was bleeding because he did not like what he had done to his mother.
When asked by police what he was thinking about doing to his mother, the accused said “I knew it must have, it was wrong and I knew it would have seriously hurt her but I was … I knew it was wrong and it was harming her because of the savage blow on the head …”. When he was asked whether he wanted to kill his mother he said “I thought, I didn’t want her to die because I wanted to get her help”. At the conclusion of the interview he acknowledged that he knew what he was doing was wrong and that he could “kill her or this is seriously hurting her”.
Dr Ying Hui Yu, a medical practitioner, treated Mrs Clark at the Flinders Medical Centre. He said (Exhibit P35) that she presented with multiple open skull fractures and cerebral spinal fluid leaking. She was in a semi-coma condition. Upon examination he noted a “depressed skull fracture to the right occipital region and part of the fragment tearing and obstruct of right transverse sinus. There was a fracture in the right mastoid process, multiple scalp lacerations in the right occipital region, ear pinna and right thumb”. In his opinion, the injuries were consistent with the victim being bashed repeatedly on the head with a hammer. Mrs Clark made a slow recovery from her injuries and was eventually transferred to the Hampstead Centre for further rehabilitation.
On the trial of the objective elements of the offence, consideration of whether the conduct of the accused is defensible is excluded. In view of the serious nature of the injuries suffered by Violet Clark and the admissions made by the accused that they were the result of repeated blows administered by him with the claw hammer, I am satisfied that the objective elements of the crime of the attempted murder of Violet Rose Clark are established beyond reasonable doubt. On 24 August 2004, I therefore recorded a finding that the objective elements of the offence of attempted murder had been established and thereafter proceeded to hear evidence and representations by the prosecution and the defence on the question of the accused’s mental competence to commit that crime.
The onus of establishing mental incompetence lies upon the accused on the balance of probabilities. At the commencement of the hearing as to mental competence, it was agreed that all of the documents which had been tendered with respect to the trial of the objective elements were also before me. In addition, the following further exhibits were admitted:
D38 3 volumes of medical records for Bradley Clark from Glenside.
D39 Medical report of Dr Ying Hui Yu dated 16 April 2003.
D40 Statement of Margaret Anne Lovelock dated 31 January 2003.
D41 Statement of David Glen Wastell dated 12 February 2003.
D42 Psychiatric report of Dr Jules Begg dated 24 February 2004.
D43 Psychological report of Dr Jack White.
D44 Curriculum vitae of Dr Jack White.
P46 Psychiatric report of Dr Narain Nambiar dated 12 May 2004.
P47Letter from Dr Rene Pols to “the Police Surgeon concerned” dated 30 January 2003.
Section 269A of CLCA defines mental illness as “a pathological infirmity of the mind (including a temporary one of short duration)”. Mental impairment is defined to include:
“(a) a mental illness; or
(b) an intellectual disability; or
(c) a disability or impairment of the mind resulting from senility.”
Section 269C states:
“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.”
There was no dispute at trial that the accused suffers from a mental illness. The accused, who is now aged 31, was diagnosed at the age of about 15 as suffering from schizophrenia. At the age of 18 he was first admitted to Glenside Hospital. He has had 10 to 12 admissions to hospital since that time, the last being in about 1997.
In recent times, the accused has been under the care of his general practitioner who has prescribed Stelazine for the treatment of his schizophrenia. I am satisfied that at the time that the accused committed this offence, he was suffering from a mental illness and therefore has a mental impairment, pursuant to s 269A(a). Nevertheless, the issue remains as to whether the accused was mentally incompetent to commit the crime of attempted murder in accordance with the provisions of s 269C.
The accused did not give evidence with respect to this matter, but Dr Begg, a psychiatrist, and Dr White, a psychologist, gave evidence on his behalf. Dr Pols and Dr Nambiar, both of whom are psychiatrists, gave evidence for the prosecution.
Dr Jules Begg:
Dr Begg interviewed the accused at the Adelaide Remand Centre on 24 February 2004 in order to prepare a report (Exhibit D42). The accused told Dr Begg about his history of schizophrenia. He told him that he had been under the care of his general practitioner who had prescribed Stelazine but said he did not take the Stelazine very often. Dr Begg went on to say:
“When asked to discuss his interest in serial killer casebooks [the accused] became evasive and dismissed these as not significant, citing his mother as having bought these books for him in 1991. I did however note that although somewhat vague and reluctant to talk about his psychiatric admissions, he very clearly enunciated how the Yorkshire Ripper was a Mr Peter Sutcliffe, who had killed prostitutes with a narrow hammer. He then appeared to lapse back into his more vague description of events.
[The accused] told me that on the day of the offence that there had been arguments during the day about inconsequential things. He had been listening to satanic music during the day and in the evening had listened to Black Sabbath rock music. He said the music had got into his head and he told me that he could not seem to be able to calm down. He thought he was going crazy again. He referred to the thoughts in his head and when I asked him to further elaborate he told me he could not remember much at all. He then thought he might be able to remember but was unsure, appearing perplexed as he struggled to recall for me what he had been thinking at the time. He told me that his mother had said to him ‘I am sick of that shit and said she was going to go’. He had begged her to stay, as he felt very dependent on her, as she had been washing all of his clothes and cooking his meals. He did not think he would be able to live without her. He told me that he got the hammer, which was located in the house and had then attacked her with the hammer. After the attack had finished he had then realised what he had done and panicked and rang the ambulance or police. When asked to focus again on his thinking during the act of assaulting his mother, he said that he had been thinking nothing, that his thoughts had been a blank.”
Later in the report, Dr Begg said:
“In the months leading up to the offence [the accused] had been watching violent videos five or six times per day, usually the same videos. He laughed as he told me about how he would watch these over and over again. His sleep patterns were significantly disturbed, often having a few hours of sleep during the day and then being awake all night. He would often go for two days without any sleep. Prior to the offence he told me that he had not slept for 36 hours. His self-care had deteriorated in the months leading up to the offence; he was showering less than once per week. He was smoking constantly.
He described a visual hallucination of the video cover talking to him and a command auditory hallucination to watch violent videos. Whilst watching the violent videos he had difficulty differentiating between the reality and the fantasy and at times had to stop the video to read Gospel passages in an attempt to calm the violent ideas.
On the day of the offence there were arguments with his mother and when she threatened to leave the house, yet again, he became enraged that he would have to look after himself, something which he believed he was not capable of doing. He told me that whilst he had some memory of attacking his mother, he did not realise what he was doing until the attack was over when he panicked and tried to undo his actions by both ringing 000 as well as attempting suicide.”
Dr Begg concluded that the accused suffers from chronic and paranoid schizophrenia which was active at the time of the offence. He said:
“At the time of the act [the accused] had not been taking adequate medication for some months and was experiencing psychosis that was significantly impeding his ability to reason about the wrongfulness of his act”.
Dr Begg, in evidence, elaborated on these matters. He considered that the accused’s treatment by his GP had been inadequate and said (at Tr 48, 49):
“My ultimate conclusion was that he has a chronic schizophrenia. That is characterised by poor social functioning and delusions that involve violence towards women particularly as well as to himself, and perceptual abnormalities including auditory hallucinations, that he had been inadequately treated in the years leading up to the offence, that there had been a recurrence of psychosis in the weeks prior to the offence, and that the arguments with his mother, the watching of a lot of videos, the lack of sleep, the lack of medication had culminated in him becoming angry and this had also resulted in the abnormal thoughts, the psychotic thoughts coming to the forefront of his mind such that he had lost capacity to be able to reason about what he was doing and he responded solely to the psychotic thoughts by attacking his mother, and then having attacked his mother and in effect discharged the emotional anger he was experiencing, he was then able to regain some composure over his mind and the realisation of what had occurred then dawned on him, and he then has to deal with the unacceptable violence that he has now perpetrated, and the way of undoing that violence was to attempt to kill himself and call assistance for his mother.”
Dr Begg conceded that the accused’s statement in his phone call to the police that he had hit his mother with a hammer and thought he had killed her was consistent with a man who knew the nature and quality of his act. Dr Begg expressed the view, however, that the accused, having hit his mother, had discharged his violent impulses and violent ideas. That had alleviated some of his distress and had enabled the healthier part of his mind to take over and recognise what he had done.
Dr Begg did not consider that the admissions made by the accused to Marwood, that he knew what he had done was wrong and that he could kill or seriously hurt his mother, related to his mental state at the time that he struck his mother but rather to his understanding of the matter as at the time of the interview.
At the conclusion of his evidence, Dr Begg remained of the opinion that the accused did not understand the nature and quality of his actions and did not know that what he was doing was wrong and therefore was mentally impaired in accordance with the provisions of s 269C(a) and (b). He did not, however, consider that the accused was without the ability to control his conduct and s 269C(c) would therefore be excluded.
Dr Jack White:
Dr White is a psychologist. He interviewed the accused at the Adelaide Remand Centre for about two and a half hours on 23 February 2004 and provided a report (Exhibit D43). In that report he expressed the opinion that the accused satisfied the relevant diagnostic criteria for:
·Schizophrenia of the paranoid type;
·Adjustment Disorder with mixed anxiety and depressed mood;
·Borderline Personality Disorder;
·Anti Social Personality Disorder.
Dr White referred to the history given by the accused which included on the day in question watching a video of the film “Nightmare on Elm Street”, which was likely to cause images of violence. Dr White said that based on the provided data it was likely that the accused was having acute paranoid and delusional thoughts and believed that his mother was planning to leave him and in some way she had been influenced by the next-door-neighbour. He went on to say in his report:
“In my opinion, such delusional thinking is consistent with your client’s mental illness, and in this respect your client’s actions were a desperate response to stop the only person in the world that your client could associate with from leaving him. Your client indicated that following the assault he became aware of the horror of his actions and in a state of despair sought to end his own life.
In relation to Section 269C of the Mental Impairment Act, it is likely that your client understood the nature of his actions and that his actions were wrong. In my opinion the third [clause], “unable to control the behaviour” is the relevant clause. In this respect because of your client’s mental illness he was delusional and had a distorted perception of the world. As a result of watching a violent video during the day, he was primed for violence. In this state your client attacked his mother in an impulsive and spontaneous way. The strength of the impulsive act was exacerbated because of your client’s mental health state in combination with him being pre-programmed for violence having watched the video of “Nightmare on Elm Street”.
Dr White, in evidence, described the accused’s mental state at the time of the offence as “extreme and acute. He was clearly in a state of emotional breakdown and I suspect this had been building up for some period of time, and it was about to explode.”
Dr White, in evidence, initially expressed the opinion, consistent with his report, that the accused had been unable to control his actions which would have brought the accused within the provisions of s 269C(c). Prior to the completion of Dr White’s evidence the trial was adjourned to the following day. When Dr White resumed giving evidence, he indicated that on further reflection, and apparently as a result of an article by Dr Bernadette McSherry entitled Mental Impairment and Criminal Responsibility; Recent Australian Legislative Reforms he had reconsidered the issue of wrongfulness. As a result he now believed that the accused came within the provisions of s 269C(b).
Dr White was cross-examined about the questions and answers given by the accused to Marwood in his record of interview which on the prosecution case indicated that the accused knew that what he was doing was wrong. Dr White’s explanation with respect to that was consistent with the opinion expressed by Dr Begg. He said:
“A.What I am saying is that what you have here is two things: one, you have a memory reconstruction of the events so that retrospectively he is looking at what’s happened and he realises that what happened was wrong. So, he is speaking now in the future tense from the position of looking back. The other situation is that he has been asked questions in a very sort of assertive authoritative way and evidence from looking at material with vulnerable witnesses indicates that people who are more vulnerable are more inclined to answer ‘Yes’ to these sorts of questions.
Q.It is your opinion that it is more probable than not that he was acting in a vulnerable way and was answering the police questions incorrectly in the sense that when he said that he knew it was wrong, he didn’t know it was wrong.
A.Well, I’m saying that when he said he knew it was wrong, he is saying that in terms of his thinking as he was asked at the time of the question. I do not believe that he had the capacity, at the time of his offending, which is critical to, as I understand it, the issue that we are looking at - he didn’t have that information; that information wouldn’t be available to him. The memory of that information is not something that would be clear.”
He indicated that the accused’s profile indicated a high level of psychological disturbance and extreme impairment symptoms in areas of cognition, perception (psychotic symptoms) affect and personality.
Dr Pols:
Dr Pols is a psychiatrist and the director of the Consultation Liaison Psychiatry service at the Flinders Medical Centre. He was on duty on 30 January 2003 and saw the accused at the hospital on the day following this incident. Dr Pols was required to assess the accused in relation to the detention order made the previous night by Dr Giles who had admitted him. Dr Pols did not provide a report to the court but gave evidence concerning his assessment of the accused’s state of mind at the relevant time. Dr Pols described the accused as quite distressed about the fact that he had harmed his mother and said he was initially unwilling to talk about it.
Dr Pols said that eventually, after coaxing:
“… [The accused] told me that he was quite angry with his mother that night before because he had been verbally abusive to her and she said ‘Look, I’m going to leave’ and then he became, clearly, more anxious and angry. He said that she was not to leave and he then threatened to hit her, to get the hammer. He said to her ‘I’ll get the hammer, I’m going to get the hammer mum’ and she still wanted to leave and he then went and got the hammer and he told me that he hit her and she still wanted to leave and he hit her again and she still wanted to leave and then he said – how did he put it – I think he used the words ‘I lost it’. I think I put that on my – yes, I put a quote on my – on the form 2 of the Mental Health Detention Order. He said he lost it, he lost control of his anger. He indicated quite clearly that when she still tried to leave after he had hit her, he completely lost control of his anger. He indicated quite clearly that when she still tried to leave after he had hit her, he completely lost control and hit her and hit her until he said ‘I saw the blood’ and he came to his senses at that stage.”
Dr Pols did not think there were any clear signs of any schizophrenia disorder at the time of examination other than the ideas expressed by the accused about hammers being somewhat different from those of other people. Dr Pols considered there was nothing in the accused’s presentation which suggested he was incapable of knowing the nature and quality of his conduct in hitting his mother with a hammer. Dr Pols thought the accused understood very well what he was doing and that he knew that it was wrong. In his opinion, the accused’s high arousal was an effect of anger which had escalated because his mother was not doing what he wanted her to do. Following his examination of the accused, Dr Pols wrote to the police surgeon on 30 January 2003 (Exhibit P47) and commented:
“There is no evidence of any positive signs of schizophrenia (hallucinations, delusions, thought disorder, inappropriate associations or affect). He was aware that what he was doing was wrong when he attacked his mother three times in succession. ‘I just lost it’.”
Dr Nambiar:
Dr Nambiar is a consultant forensic scientist who works primarily for Forensic Mental Health Services. Dr Nambiar interviewed the accused at the Adelaide Remand Centre on 4 May 2004 and provided a report for the court (Exhibit P46). Dr Nambiar confirmed that the accused was able to establish a diagnosis of schizophrenia by confirming a number of chronic symptoms of that condition. He said:
“He reported a life long history of auditory hallucinations, paranoid delusions, messages from the TV and radio suggesting referential delusions and various other perceptual disturbances including hearing demonic voices and seeing visions of relatives and friends. He also demonstrated poor concentration and attention span throughout the interview suggesting that he experiences quite severe cognitive disturbances as a result of his schizophrenia.”
He then went on to refer to the information provided with respect to what happened on the day of the offence:
“In relation to the offence itself [the accused] told me that on that particular day he had been feeling particularly argumentative. He told me that he had not been sleeping that well for at least a few days prior to the offence and that he had missed some of his Stelazine tablets. On the day that the event occurred his mother had gone out presumably to visit the neighbours whilst he remained at home watching TV. When his mother returned he recalled that she had borrowed some videos for him and that during the course of a conversation she had with him he became increasingly angry with her and then ‘just [lost] it’. In his terms he ‘schizoed out’. He told me that he felt that his head was buzzing and that ‘my brain was fucked’. He told me that he felt that his brain needed to be fixed and that his mother had made contact with Noarlunga Mental Health Services who had come out to assess him and that he had been experiencing increasing number of symptoms of his schizophrenia. He told me that on that particular day he had been talking to himself and answering himself. He had been yelling and screaming because he had been hearing voices.”
Dr Nambiar went on to say that:
“[The accused] has a very chronic and distressing form of schizophrenia that has plagued him for the last thirteen years. It has been characterised by chronic persistent auditory hallucinations, paranoid delusional thinking and a deterioration of functioning and withdrawal from society. He has developed an intense dependency on his mother that often becomes hostile given the closeness of their living arrangement. [The accused] has repeatedly been frustrated by his illness and the lack of response to treatment and has clearly lost faith in psychiatric services by disengaging with him in the last five years. There is a history of impulsive behaviour, which on many occasions has been driven by anger.
Clearly, [the accused] has a well-established diagnosis of schizophrenia which constitutes a mental impairment according to the legal definition.
At the material time of the offence, although [the accused] was experiencing chronic persistent symptoms of his illness, he clearly understood the nature and quality of his actions as he physically assaulted his mother.
Mr Clark describes feeling extremely angry with his mother and that an argument ensued for no particular reason that he could recall, however in this state of anger he had the presence of mind to leave the lounge room go into the hall and obtain a hammer from a drawer, return to the lounge and then assault his mother many times till she dropped to the ground. Immediately realising the magnitude of harm that he had inflicted upon his mother he then attended to her checking if she was alive and then called for help. His immediate reaction following that was to want to punish himself and therefore attempted to take his own life.
The behaviour as described by Mr Clark would suggest to me that although he was experiencing chronic symptoms of his illness, it was anger that drove him to assault his mother in a manner that was not necessarily impulsive but rather due to culmination of many conflicts that he had had with her in the approximate time to the offence. Mr Clark’s actions and descriptions of what he felt at the time would suggest to me that he clearly knew the wrongfulness of his behaviour.
Finally, although [the accused] gave in to an impulse, which led to his behaviour, I would suggest that this was directly related to his angry state of mind rather than his psychotic state of mind.”
Dr Nambiar in evidence said that he had not seen the letter written by Dr Pols to the police surgeon (Exhibit P47) until just before he came into court to give evidence. Having considered the opinion expressed in it, however, he considered that it affirmed the account given to him by the accused in that he denied experiencing any of the positive symptoms of his illness. Dr Nambiar accepted that at the relevant time the accused was continuing to experience chronic positive symptoms of his illness as evidenced by the accused’s statements that on the day in question he had been talking to, and answering, himself and had been hearing voices but nevertheless believed that the accused had not reached the stage at which his judgment was so impaired that he could not control what he was doing nor not know what was right or wrong. Dr Nambiar said that he asked the accused to explain what he meant when he said he “Lost it” and “He used the term that a lot of people with mental illnesses use, that is he said he ‘schizoed out’.”
Dr Nambiar considered that the accused was expressing anger at the time he hit his mother but that changed to remorse immediately afterwards when he realised that he had hurt her and saw her in a hurt state.
Conclusion
Dr Begg was a good witness but his opinion that the accused did not understand the nature and quality of his actions and did not know that what he was doing was wrong was, in my view, inconsistent with the evidence provided by the accused’s 000 call to the police and his later statements to Marwood in which he appeared to admit, quite unequivocally, that what he did was wrong and explain the reason why. The questions and answers in the interview conducted by Marwood appear to be quite straightforward and in my opinion do not suggest that it was more probable than not that the accused was talking about his state of mind at the time that he was speaking to the police as opposed to the time at which he assaulted his mother as was suggested by Dr Begg. Although Dr White to some extent supported the opinion expressed by Dr Begg, I have to say that I found Dr White’s evidence to be confusing. Of particular concern was Dr White’s overnight change of opinion from an initial assessment that the accused had an inability to control his actions (s 269C(c)) to a belief that the accused lacked an understanding about the wrongfulness of them (s 269C(b)). This left me with the impression that Dr White did not fully appreciate the issues relevant to s 269C(c) which Dr Begg described (in my view accurately) in the following way:
“Q.I just want to come back to the concept of inability to control his conduct or reaction. Do you agree with me there’s a world of difference between an inability to control one’s actions and choosing not to control one’s actions.
A.Yes.
Q.Can the distinction be diagnosed.
A.Yes.
Q.How is it diagnosed.
A.Based on the history of the person talking about how their actions have been controlled outside of themselves, that they have an experience of themselves being a passive recipient of some controlling force that makes them do things, and so we see a history of this occurring not only in issues of violence but I would expect that there would be other areas where he felt controlled in what he was doing. That wasn’t present in this case and, therefore, I believe it was the former, where he didn’t know what he was doing in terms of the consequences, etc.”
In the circumstances I do not rely on the opinion expressed by Dr White. In any event both Dr Begg and Dr White did not see the accused until a substantial period of time after the occurrence of this incident. In my opinion the best evidence of the accused’s state of mind at the relevant time is that obtained closer to the occasion on which he assaulted his mother. This is provided by Dr Pols who saw the accused the morning after the assault while he was still in the Flinders Medical Centre. Dr Pols did not think that the accused was demonstrating any signs of his schizophrenia disorder at that time although he was distressed about the fact that he had harmed his mother. Although Dr Nambiar, like Dr Begg and Dr White, did not see the accused until comparatively recently, I thought he was a good witness who gave his evidence in a completely objective manner and his opinion was consistent with that expressed by Dr Pols in P47. Dr Nambiar accepted that the accused had been suffering positive symptoms of his schizophrenia on the day in question but nevertheless believed that the accused when assaulting his mother had acted out of anger and not as a result of any inability to control his actions. He considered that the accused knew the nature and quality of his act and knew that what he was doing was wrong. I accept the evidence of Dr Nambiar. The defence has, therefore, failed to displace the presumption of mental competence. None of the matters contained in s 269C have been established on the balance of probabilities. I therefore find that the accused was mentally competent to commit the crime of attempted murder.
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