R v Henley - [2019] SADC 70

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HENLEY
[2019] SADC 70
Reasons for Decision of Her Honour Judge Schammer
7 June 2019
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
Defendant charged with one count of arson - defence of mental incompetence raised - election to have investigation into mental competence dealt with by a judge sitting alone - determination of mental competence under s269F of the Criminal Law Consolidation Act 1935 - whether defendant suffering from a mental impairment at time of offence - whether defendant knew that her conduct was wrong – whether defendant was unable to control her conduct.
Held: On the balance of probabilities, the defendant was suffering from a mental impairment, being a major depressive disorder, at the time of the offending and in consequence of that impairment, did not know that her conduct was wrong. Accordingly, at the time of the alleged offence, the defendant was mentally incompetent to commit the offence.
Criminal Law Consolidation Act 1935 SA s 269A, 269C, 269D, 269FA, 269F, 269H, pt 8A, div 2, referred to.
R v Cawte [2018] SASC 182; The King v Porter (1933) 55 CLR 182; R v Balaban [1953] SASR 282; R v Pangallo (1989) 51 SASR 254; Mizzi v The Queen (1960) 105 CLR 659; Stapleton v The Queen (1952) 86 CLR 358; R v Zilic [2010] SASC 70, considered.

R v HENLEY
[2019] SADC 70
Introduction

Grace Henley (the defendant) is charged with one count of arson, allegedly committed at Tea Tree Gully on 5 October 2016.
The defendant has pleaded not guilty to the offence on the basis that she was mentally incompetent to commit the offence pursuant to s 269C of the Criminal Law Consolidation Act 1935 (‘the Act’).
Pursuant to s 269D of the Act, a person’s mental competence to commit an offence is to be presumed unless the person is found, on an investigation under Part 8A, Division 2 of the Act, to have been mentally incompetent to commit the offence.
The defendant elected for that issue to be tried by judge alone.
I determined to proceed first with the trial of the defendant’s mental competence pursuant of s 269F of the Act. It does not appear in any event that the objective elements of the offence are disputed.
After hearing the relevant evidence and submissions made to the court on that issue, I find that it has been established on the balance of probabilities that the defendant was mentally incompetent to commit the offence. My reasons for that decision follow.
Section 269C
At the relevant time,[1] the Act stated:
[1] Part 8A of the Act was amended by the Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (No.19 of 2017). The relevant amendments to s 269 only came into effect as of 27 November 2017 and do not apply to this matter: see R v Cawte [2018] SASC 182 at [5]-[6].
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—
(a)does not know the nature and quality of the conduct; or
(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; or
…
(c)is totally unable to control the conduct.
…
Pursuant to s 269A of the Act:
269A—Interpretation
…
mental illness means a pathological infirmity of the mind (including a temporary one of short duration);
mental impairment includes—
(a)    a mental illness; or
(b)    an intellectual disability; or
(c)    a disability or impairment of the mind resulting from senility;
…
In this case there is no dispute that at the time of the alleged offending the defendant was suffering from a ‘mental illness’, namely a major depressive disorder.
I find that at the time of the alleged offending the defendant was suffering a ‘mental impairment’ within the meaning of s 269A(1) of the Act.[2]
[2] Based on the unchallenged evidence of Dr Rose and Dr Branson.
The issue for my determination is whether at the time of the alleged offending, in consequence of a mental impairment, the defendant did not know her conduct in lighting the fire was wrong, thus enlivening s 269C(b) and/or she was unable to control that conduct, thus enlivening s 269C(c). Section 269C(a) of the Act is not relevant to this matter. There is no evidence that the defendant did not know the nature and quality of her conduct. Further, there is no evidence to support a finding that the defendant is unfit to stand trial pursuant to s 269H of the Act.
Both Dr Rose, psychiatrist and Dr Branson, psychiatrist, consider that the defendant has a defence of mental competence available to her, but for different reasons. The prosecution disputes the psychiatrists’ findings on the basis that in each instance the psychiatrist has not appropriately applied the test under s 269C.
The onus is upon the defendant pursuant to s 269FA(3) to displace the presumption of competency pursuant to s 269D of the Act, on the balance of probabilities.
In order to satisfy the requirement in s 269C(b), the relevant enquiry is – am I satisfied on the balance of probabilities that at the time of the alleged conduct in question, by reason of a mental impairment, the defendant could not reason with a moderate degree of sense and composure that the conduct in question was wrong, having regard to the everyday standards of reasonable people.[3]
[3] The King v Porter (1933) 55 CLR 182; R v Balaban [1953] SASR 282; R v Pangallo (1989) 51 SASR 254; Mizzi v The Queen (1960) 105 CLR 659.
As Dixon J said in The King v Porter, ‘mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control and impulsiveness’ are to be distinguished from a ‘mental impairment’.[4] The defendant’s mental impairment must be of such character as to prevent a defendant from knowing that what they were doing was wrong.
[4] (1933) 55 CLR 182 at 188.
The enquiry is to be directed as to the condition of the defendant’s mind at the time of the act of arson, although in answering that question the defendant’s state of mind both before and after the relevant act may be helpful.
As to what is ‘wrong’ within this limb, wrongfulness is to be judged in the eyes of ordinary people having regard to the everyday standards of reasonable people. The relevant question is, did the defendant know her act to be morally wrong, not whether she knew she was acting contrary to the law.[5]
[5] Stapleton v The Queen (1952) 86 CLR 358.
It is to be emphasised that the mental impairment must have been of such character as to prevent the defendant from knowing what she was doing was wrong. Attention is to be drawn to the defendant’s understanding and whether her functions of understanding were ‘thrown into derangement or disorder’ by reason of her mental impairment. [6]
[6] The King v Porter (1933) 55 CLR 182 at 188-189.
In determining the operation of s 269C(c) of the Act, the law requires there to be a total lack of control in order for a defendant to avail themselves of this defence. Some inability to control one’s actions is insufficient.[7]
[7] R v Zilic [2010] SASC 70 at [80].
The Trial
The defendant called evidence from Dr Lynette Rose and Dr Chris Branson.
In addition the defendant tendered reports from Dr Rose dated 29 November 2018[8] and 23 March 2019[9] and reports from Dr Branson dated 10 September 2018[10] and 19 February 2019.[11]
[8] Exhibit D2.
[9] Exhibit D5.
[10] Exhibit D3.
[11] Exhibit D4.
The prosecution did not call any oral evidence, but tendered a bundle of materials,[12] relevant both to the defendant’s personal background and the events leading up to and immediately after the alleged offending.
[12] Exhibit P1.
Defendant’s personal background
The defendant is currently 41 years of age[13] and was 39 at the time of the alleged offending. She has a long history of mental illness relevant to her difficult and traumatic upbringing.
[13] Date of Birth: 5 August 1977; Exhibit P1, Lyell McEwin Hospital Reports, results and summaries.
The defendant was born in Adelaide and is the second oldest child in a family of 12 children. Her parents moved often and as a child her interaction with others was limited to attending school, where she was bullied and felt extremely isolated. The family was run in a cult-like manner, with no contact with neighbours or friends.
The defendant was a very bright student, but fell behind in her later high school years when she developed severe vertigo, headaches and fatigue, which symptoms went untreated. She first suffered suicidal thoughts as early as year 11, at which time a teacher became aware of her social isolation and unusual family life. Families SA became involved, as a result of which the defendant’s six younger siblings were placed in foster homes and she was denied any contact with them. By the age of 17, the defendant was living in a youth hostel.
Despite being of above intelligence, the defendant has rarely worked or studied, and was a victim of sexual abuse in her 20s. At the time of the offending she was in receipt of a Disability Support Pension.
Although the defendant has some contact with some of her siblings and her parents, they are not close or supportive of her and she has very few, if any friendships, and no close personal relationships. She has found it very difficult to trust others, and is socially isolated, such that her closest relationship has been with her cats.
The defendant has attempted suicide on several occasions.
On 31 August 2011, the defendant was found lying unconscious on the floor of a bathroom in a shopping centre after attempting to overdose on Temazepam, in the context of becoming overwhelmed with significant anxiety about starting a new job, such that she saw no future. She was admitted to the Lyell McEwin Hospital (LMH) thereafter and was initially detained under the Mental Health Act. During her admission she was noted to have significant social phobia with marked impairment in functional ability limited by that phobia, such that she rarely ventured outside of the home she shared with her cats. By the time of her discharge in mid-September 2011 she had started to engage better with hospital staff and denied suicidal ideation.[14]
[14] Exhibit P1, LMH Final Separation Summary dated 19 September 2011.
On New Years Eve, 2012 the defendant again attempted to overdose on prescription medication, but woke and called a taxi to the Lyell McEwin Hospital (LMH). Prior to her overdose she had written a suicide note, containing instructions as to the care of her cat, and had also contacted Lifeline on an anonymous basis, in an attempt to reach out for help.[15]
[15] Exhibit P1, LMH Final Separation Summary dated 4 February 2013.
Dr Rose noted the defendant would accumulate significant quantities of prescription medication, and carry them around with her, with a view to using them to end her life and to act immediately upon becoming overwhelmed by life.
The offending
On 5 October 2016 the defendant was living alone with her two cats in a unit she rented at 6, 1-9 Nicholas Drive, Tea Tree Gully (‘the unit’). She had lived there for several years and had some limited social contact with various of her neighbours.
Between 3.30 pm and 4 pm on 5 October 2016, the defendant caught a taxi to the Ridgehaven Veterinary Clinic and left her two cats at the counter.[16] She then returned to the unit.
[16] Exhibit P1, Statement of Robert Muskee dated 16 April 2017; Affidavit of Lisa Blood affirmed on 28 February 2019
Between approximately 4 pm and 4.20 pm that same day, the defendant used a match and a bottle of methylated spirits to light a fire inside the unit (‘the fire’),[17] resulting in extensive damage to the unit, assessed at between $45,000 and $47,000.[18] The fire’s origin was most likely on a two seater lounge chair situated in the lounge room of the unit.[19]
[17] Exhibit P1, Statement of Maree Plew dated 19 December 2016; Exhibit D2 and Exhibit D3.
[18] Exhibit P1, Statement of Richard Portakiewicz dated 10 January 2017.
[19] Exhibit P1, Statement of Michael Pickburn dated 6 January 2017.
The defendant panicked and subsequently fled the unit on foot, taking with her some sleeping tablets, a bottle of alcohol and a black bag.[20] The defendant hid in an alley and then took an overdose of prescription medication (Temazepam) and consumed half a bottle of wine, before calling a taxi to take her to the LMH. She lost consciousness in the taxi and was subsequently admitted to the LMH psychiatric unit, before being discharged on 24 October 2016.[21]
[20] Exhibits D2 and D3; Exhibit P1, statements of Benjamin Jankovic dated 16 March 2017 and Robert Muskee dated 16 April 2017.
[21] Exhibit P1, LMH Final Separation Summary marked ‘Not Sent’.
In the days preceding the fire, the defendant had thoughts of suicide, and her diary entries leading up to the day of the fire from 1 October 2016 include references to ‘sharp blade’, ‘another prescription sleeping pills’, ‘alcohol’, ‘pack/get rid of stuff’ and notations relating to the future care of her cats.[22] There is nothing in those diary entries directly relevant to any forward planning with respect to the fire.
[22] Exhibit P1, Appendix BJ1 to the declaration of Benjamin Jankovic dated 16 March 2017.
The defendant told LMH staff during her admission after the fire, that ‘she had been feeling very low for months, feeling hopelessness and emptiness, and simply that “she didn’t want to be here anymore.”’[23]
[23] Exhibit P1, LMH Final Separation Summary marked ‘Not Sent’.
The defendant spoke with her neighbour, Maree Plew, at the LMH, two days after the fire. At that time, Ms Plew reports the defendant told her that she had lit the fire. Although she had not said why she had done so, she said ‘she wanted to erase her past’. According to Ms Plew, the defendant told her that she had been feeling ‘out of it’ for the past week, maybe a month and that although on the morning of the fire ‘everything was normal’, she then watched a DVD and thought ‘what was the point of the meaning of her life’. She had then taken her cats to the vet, came home and had used methylated spirits to light the fire. Ms Plew stated that the defendant told her that her original plan was to overdose in the unit after she lit the fire, and to burn in there, but the flames had lit up quickly, causing her to panic and run from the unit.
Medical Evidence
Dr Rose
Dr Rose first saw the defendant on 29 November 2018 at the request of the court during a two hour assessment. She described the defendant as being hostile and passive/aggressive during the course of the assessment, believing the purpose of the assessment was to give the prosecution case ‘fuel’. Dr Rose was unable to develop any rapport with the defendant during the assessment.
Dr Rose gave evidence that in conducting assessments of this type she would familiarise herself with the relevant documentation before and then often formulate hypotheses to test during the course of the assessment.[24] In this instance she said she was curious to ascertain if someone could be mentally incompetent of arson in the absence of a delusional disorder.[25]
[24] T 13.1-6.
[25] T 13.37-14.1.
The defendant told Dr Rose that at the time of the alleged offending she was ‘sick of life, couldn’t break out of it’ and that she had ceased taking her anti-depressant medication about eight months before.
She said that in the days before the fire she had been feeling worse, with pressure to ‘do something, create change’ and that avoidance techniques she usually utilised to manage these thoughts (such as going for a walk or bike ride, or watching a movie) were not working.
The defendant described having previously unsuccessfully attempted suicide, and that in the days before the fire having made plans around suicide, including purchasing tablets, alcohol and a knife, and that on the day of the fire she had come to the decision that she needed to act impulsively to end her life, that her life had to end that day, as her previous attempts had failed.
The defendant told Dr Rose that she called a taxi and took her cats to the vet, with plans to overdose with alcohol in the bathtub. She said that upon arriving home, she got the idea to set fire to the unit, so as to erase all evidence of her life and to avoid her family having to go through all her things. She said ‘if it burns they’ll have nothing to sift through, I’ll be wiped out’.
She had methylated spirits to clean with, so she poured it on her belongings and on her furniture and put a match to it. Her plan had been to take some tablets and fall into the fire and burn. However, the fire took hold much quicker than she had expected, with a lot of noise and black smoke. She panicked and fled, taking the tablets, alcohol and her handbag with her, but leaving an urn that contained her dead cat’s ashes.
The defendant told Dr Rose she hid in an alley and took the tablets with some alcohol. She reported saying to herself over and over again words to the effect of ‘what have I done’ and was angry with herself for lighting a fire so close to a conservation park and for doing something so ‘destructive, polluting and wasteful’. She called a taxi to take her to the LMH and lost consciousness in the taxi. While in hospital she expressed a desire to go home, not comprehending fully what she had done, and was later discharged unsuccessfully to Catherine House, from where she absconded twice, requiring a further hospital admission shortly thereafter.
While in hospital the defendant was initially very unresponsive, albeit she later became more interactive with staff, attended meals without prompting and expressed ongoing feelings of worthlessness and guilt about the fire. She was also very stressed about the prospect of speaking with police.
The defendant was discharged again to Catherine House where she stayed for around two months, and expressed anger at the circumstances in which she left there.
Dr Rose noted the defendant was diagnosed with major depression following her discharge from the LMH after the fire. She had been prescribed Seroquel, but had weaned herself off that and was refusing to see a GP or to have mental health treatment.
Dr Rose also considered the defendant was suffering a dysthymic disorder with chronic low mood and feelings of hopelessness and worthlessness, complex post-traumatic stress disorder and a personality disorder.
Dr Rose noted that the defendant’s plans for suicide had been well researched and recorded in the days leading up to the fire, as evidenced by the diary entries, and expressly noted the lack of any reference to the fire or an accelerant in those diary entries.
She took a history from the defendant that the thought to light the fire only occurred after she had dropped the cats to the vet, so as to ensure they were cared for in light of her plans to overdose in the bath. In her report, and in her evidence, Dr Rose opined that it was possible the defendant’s plans for the fire were there earlier than this and that in fact she had taken her cats to the vet so as to ensure their safety.
Dr Rose expressed the opinion that at the time she lit the fire, the defendant was aware of the nature and quality of her conduct, indeed her claimed intention was to destroy all traces of her existence. As such, she did not fulfil the criteria in s 269C(a) of the Act.
Further, Dr Rose considered that by her actions in ensuring her cats’ safety and her understanding that a fire would erase traces of her existence and save her family from having to sift through her belongings, the defendant demonstrated some control over her actions, meaning there was not a total loss of control over her actions, such that she did not fulfil the criteria in s 269C(c) of the Act.[26]
[26] Exhibit D2 at p.16.

However, Dr Rose expressed the opinion that due to the defendant’s depressive illness, with an intense focus on ending her life and what she described as ‘her level of dissociation’, it was probable that at the time she lit the fire, the defendant was unable to reason with a moderate degree of sense of composure that her actions in burning the unit were wrong.
In expressing this opinion Dr Rose noted it was only after the fire, in the context of her feeling calmer, having taking sedatives, the defendant appreciated that she had done something terribly wrong.
In her evidence Dr Rose elaborated on her opinion that the defendant was mentally incompetent under s 269C(b) of the Act.
Dr Rose explained that what the defendant had described at the time she lit the fire was an experience of significant symptoms of dissociation, being a disconnect from reality, an inability to connect with her surroundings, rather than a loss of awareness of reality. She described this as the defendant ‘being almost in a bubble’, and unable to connect with the world around her, as she had managed to do so in the past.[27] At the time the defendant lit the fire, she could not think of the consequences and was ‘stuck in how she felt in that instant’.[28]
[27] T 14.6-27.
[28] T 18.27-19.5.
Dr Rose noted that the defendant’s desire to return to her unit while at the LMH after the fire and her description of how she felt at Catherine House thereafter were also consistent with her experiencing episodes of dissociation.[29] She disagreed with Dr Branson that the defendant’s presentation at Catherine House was consistent with catatonia.
[29] T 16.34-17.26.
Dr Rose gave evidence that the defendant had a long standing experience of dissociation, at times worse than others. She considered that at the time the defendant lit the fire, her dissociation had been exacerbated by the depressive illness she was suffering at that time, in combination with her personality disorder, being an avoidant personality disorder, in the context of having ceased taking her depression medication some months beforehand.[30]
[30] T 23.22-29.
She described the level of the defendant’s dissociation at that time as being moderate. She explained that this was between the two extremes of ‘mild’ dissociation (where a person is on auto-pilot, thinking of other things) and ‘severe’ dissociation, where a person was in a ‘fugue-like state’, being something extremely rare.[31]
[31] T 29.28-30.1.
Dr Rose was asked in cross-examination why it was that the defendant could not appreciate the wrongfulness of her conduct while in such a state, and she explained:[32]
I think it was the level, significant level of depression that she was experiencing, which left her unable to, less able to think and reason clearly and think things through clearly and the intense fixation on ‘I need to do it. I need to do it today. I need to do it immediately’ without any further planning or organisation. ‘I have just got to do it’. So it was that level that left her unable to think more broadly about the wrongfulness of what she was doing.
(my emphasis)
[32] T 30.28-36.
She agreed that the defendant’s fixation with ending her own life led her not to consider the consequences of her actions.[33]
[33] T 30.37-31.2.
It was suggested to Dr Rose that the defendant’s concern to have her cats cared for, whether it be because of the fire or her intended suicide, demonstrated ‘some level of cognition and reasoning at that time’. Dr Rose said:[34]
AThe cats were seen, I guess, as family, children, family and so there was some ability but not a broader ability.
QWhat do you mean by ‘some ability’ as opposed to a ‘broader ability’.
ASome ability was the cats were right in front of her and she could think about them and they were very important to her but there was no thought about the environment, about the neighbours that she was friends with, about the landlord. The only – she could think about herself and what was right in front of her at that moment but not beyond that.
(my emphasis)
[34] T 31.12-22.
She agreed that the defendant’s ability to think about the wellbeing of the cats meant she ‘still had some degree of reasoning’.[35]
[35] T 31.33-38.
During cross-examination Dr Rose was asked about a note she made during the course of her assessment that the defendant had told her she decided to set the fire ‘that morning’. She agreed with a proposition put to her that if the defendant had made the decision to light the fire in the morning, she would have had time during the day to process and think about the wrongfulness of her conduct, thus providing a plausible explanation as to why she took the cats to the vet – namely to escape the fire, not for the cats to simply be cared for in her absence.[36]
[36] T 29.5-23.
Dr Rose explained that had the defendant determined earlier in the day to light the fire, this meant she had some idea as to the wrongfulness of her conduct at the time she lit the fire, specifically that she knew it would be wrong to harm her cats by exposing them to the fire. In her first report Dr Rose also stated that if, in fact, the defendant had planned to set fire to the unit earlier in the day, such that she took her cats to the vet so as to ensure they were safe from the fire, that would indicate an awareness by her that the fire could cause harm to others, meaning she did have the ability to reason with composure that setting fire to the unit was ‘wrong’.
The note made by Dr Rose that the defendant told her she first planned the fire in the morning was inconsistent with other aspects of her history. Dr Rose said she was unable to question the defendant as to that inconsistency during the assessment because of her hostility and irritability.[37] She agreed that these inconsistencies, and other inconsistencies in her description of the 2013 suicide attempt, caused her some concerns as to the defendant’s veracity.[38]
[37] T 37.1-9.
[38] T 37.36-38.14.
Although Dr Rose was uncertain as to the precise timing of events, she maintained that the defendant had a depressive illness in the setting of a personality disorder such that she was experiencing dissociation at the time she lit the fire.[39] She agreed that she could not be ‘really sure’ as to the impact that level of dissociation had on the defendant at the time she lit the fire, due to her inability to test various hypotheses during the assessment given the defendant’s level of hostility.[40]
[39] T 38.23-27.
[40] T 39.4-16
When asked about the defendant’s actions immediately after lighting the fire, namely running from the unit, but taking the tablets, alcohol and her bag with her, Dr Rose stated that this could be explained by several possibilities. One such possibility was that the intensity of the fire was such that it reconnected her to reality, such that she suddenly realised the wrongfulness of what she had done. The other was that she was distressed as once again her suicide plans had not unfolded as she had intended.[41] Dr Rose did not think the fact the defendant ran from the fire meant that she knew she had done wrong when she lit it, rather this was consistent with an automatic response to such a frightening situation.[42]
[41] T 40.4-24.
[42] T 40.25-35.
Further, Dr Rose explained that the fact the defendant had the presence of mind to take her bag and various other items with her after the fire, indicated it was possible she was capable of reasoning at that point in time, but did not assist in determining her ability to do so as at the time she lit the fire.[43] She agreed this demonstrated that she was able to think about the consequences of some of her actions, not whether it was wrong or not, at that point in time, namely when she was still contemplating suicide.[44]
[43] T 42.6-19.
[44] T 43.10-16.
Dr Rose agreed that at the time the defendant was hiding after running from the fire she may have appreciated she had done something wrong.[45] When asked how it was the defendant could know the wrongfulness of her conduct then, but not at the time of lighting the fire, Dr Rose said:[46]
The shock of the fire, the smoke, the noise. She used very physical things previously to try and remain connected. It’s a bit like if you’re driving on automatic pilot and suddenly someone beeps their horn at you and you realise you’ve run a red light, you’ll suddenly come back to reality again. So it could have been the shock and the reality of the smoke and the flames and the heat and the noise that actually made her more aware of her actual surroundings rather than just thinking ‘I’ve got to do this’.
[45] T 43.23-28.
[46] T 44.1-
It was also suggested to Dr Rose in cross-examination that what the defendant was doing by lighting the fire, was in fact a ‘cry for help’, or to alert neighbours to enter the unit to find her, as opposed to a real intention to end her life. It was suggested that the defendant’s behaviour in a prior suicide attempt was similarly a cry for help. Dr Rose agreed this was a possibility but considered an alternative hypothesis was that it was only after the event that the defendant appreciated what she had done.[47] She did not think the defendant’s actions in lighting the fire were simply a cry for help.[48]
[47] T 46.24-32.
[48] T 47.34-35.
After giving her evidence, Dr Rose was asked to assess the defendant again and to prepare another report, having regard to the specific question as to when it was that the defendant first formed the intention to light the fire.
In her report dated 23 March 2019, Dr Rose noted that during this second interview the defendant was much more engaging and reactive than at the time of her first assessment, and that the defendant attributed her earlier presentation to anger and the effects of having recently ceased her medication.
The defendant told Dr Rose that at the time of the offending she had no particular routine, sometimes sleeping all day and being awake during the night. She said on the day of the fire she had woken and then started watching a movie on her laptop, without knowing what time it was. She said the decision to take the cats to the vet was a sudden one, as she had decided that she could not go on and that something was going to happen that day. She explained further that after returning home from the vet, she felt even worse, and ‘just wanted to erase me, my stuff, evidence that I was ever on the planet’. She said it was only then, when she was alone and highly anxious, that she decided to light the fire.
Dr Rose considered that the defendant’s decision to light the fire, before taking the tablets, demonstrated significant impulsivity and that her decision to leave her burning unit without retrieving her dead cat’s ashes, or photographs, led her to conclude this was not a ‘cry for help’.
Dr Rose concluded:[49]
Ms Henley took the cats to the vet with plans to suicide by tablets, alcohol and cutting in the bath, and it was only when she arrived home from the vet that she formed the idea to light the fire. She started the fire not long after, and though she planned to take tablets so that she would be unaware and not flee, she lit the fire precipitously without taking the tablets, supporting that she was unable to control her actions and acted impulsively.[50]
The history supports that Ms Henley is someone oversensitive to others and the impact of her actions on them. It is out of character and supports impulsivity and lack of awareness of wrongfulness that she did not consider the potential impact of her actions on the neighbours and others.
[49] Exhibit D5, pp.7-8.
[50] Noting that Dr Rose’s conclusion as to the defendant’s inability to control her actions as expressed therein is possibly inconsistent with the conclusion she reached in her earlier report on p.16.
Dr Branson
Dr Branson assessed the defendant twice, for 105 minutes on 30 January 2018 and then again for 120 minutes on 15 February 2018.[51] He is of the opinion the defendant was mentally incompetent to commit the offence, however he considers she met the criteria in both s 269C(b) and s 269C(c) of the Act.
[51] T 50.31-34.
Dr Branson took a very similar history to Dr Rose as to the defendant’s state of mind in the months and days leading up to the fire. The defendant told Dr Branson that she was ‘chronically suicidal’, albeit that was not something she considered unusual for her. However, in the days immediately before the fire she said these feelings increased significantly and she tried to distract herself by bush walking and taking photographs.
On the day of the fire she had tried to watch a movie, but was not taking it in. She started to think of suicide, in the context of making ad hoc plans to do so in the days before, and made a decision to take her cats to the vet, dropped them on the counter and then caught a taxi home.
She said that it was only when she got home that she developed sudden strong feelings to attempt to erase herself, her belongings, her surroundings, her whole existence. She said the idea of burning her possessions, taking an overdose and dying in the fire came to her quite suddenly, being unusual as she was not generally an impulsive person.
The defendant said she then found some methylated spirits and poured them over all of her clothes and possessions, then threw a match onto it. She was frightened by the ferocity of the fire which was much greater than she expected, panicked and ran from the house, taking with her the pills and wine she was going to use to overdose.
She described that in the period thereafter she smelled smoke and felt distressed that there must have been something very wrong with her and that she needed help. In hindsight, she said what she had done was totally against her values, which were focussed on preventing damage to the environment.
While in hospital the defendant remained suicidal and had no clear memory of what she had done until about a week later. She then deeply regretted what she had done and felt very guilty for causing trauma to her neighbours and landlord.
After spending 22 days at the LMH the defendant was discharged to Catherine House. She described it as being extremely unpleasant and of being visited by a mental health worker and a sensation of being unable to speak or even move, such that she was taken by ambulance to Glenside Hospital. Dr Branson was of the opinion that what the defendant had described in this respect was a state of catatonia which was often related to very severe depression.
Dr Branson took a lengthy history from the defendant as to her personal background and previous psychiatric history. Like Dr Rose he considered the defendant to be of above average intelligence (possibly within the superior range), and although he described her mood as mildly depressed when he saw her, there were no signs of psychosis.
Dr Branson expressed the opinion that at the time of the alleged offending the defendant was suffering a significant Major Depressive Disorder. In forming this opinion he noted the condition was of very significant severity given what he described as her experience of catatonia several weeks thereafter. He said that this condition had led the defendant to attempt suicide in a highly disorganised way, with impulsivity and being completely out of character, in the context of chronic and increasing suicidal ideation.
He noted that in addition there were some borderline personality traits, but not sufficient to satisfy the criteria for a borderline personality disorder as such.
Dr Branson expressed the opinion that while the defendant knew the nature and quality of her conduct in lighting the fire, he did not believe she ‘was reasoning with a moderate degree of sense and composure’,[52] nor was ‘she able to control her actions’ as a result of her major depressive illness. He therefore considered her mentally incompetent to commit the offence pursuant to s 269C(b) and s 269C(c) of the Act.
[52] Noting this terminology does not fully address the requirements of s 269C(b).
In his second report Dr Branson was asked to comment in some differences of opinion between him and Dr Rose. He conceded it was possible that the defendant was suffering significant dissociation, rather than catatonia, while at Catherine House, but that this made no difference to his opinion as to her mental competence at the time of the alleged offending. He reiterated that in his view all of the history supported a finding that the offending was committed in an ‘extremely impulsive and irrational fashion’ being inconsistent with it being the result of any long-term plan.
In evidence Dr Branson maintained his opinion that at the time of the alleged offending the defendant was suffering a major depressive disorder.
Dr Branson was asked to explain further why he considered the defendant was mentally incompetent under s 269C(b). He stated:[53]
From what Miss Henley told me it is clear that she had been having suicidal thoughts for a number of days of increasing severity and she felt on the day of the offence she felt that it was imminent that she should act on those thoughts but the means by which she intended to commit suicide had to do with an overdose of medication and alcohol. The impulse, I think it was, to set fire to her unit was a very sudden and quite irrational one. She was immediately shocked by what she had done and was surprised at the ferocity of the fire and was not reasoning in a way which actually allowed her to carry out her plan, which would have been to have taken the medication and the alcohol before lighting the fire. In fact, she hasn’t done that. It seemed to me that this was a highly reckless and impulsive act related to her difficulties in reasoning and thinking at the time which in turn was related to her severe depression.
[53] T 52.1-18.
He considered it likely that dissociation was part of her presentation at that time, such that ‘she was not, in a sense, fully aware of the reality of what she was doing’.[54]
[54] T 53.13-23.
In cross-examination he further explained that the defendant was very sensitive to environmental concerns such that the act of lighting a fire was a complete anathema to her. This, coupled with the impulsivity of her act in lighting the fire, led him to believe that ‘she must have lacked all reason to have acted in that way’, and it was this lack of reasoning which demonstrated to him that the defendant did not appreciate that her conduct in lighting the fire was wrong.[55]
[55] T 56.16-28.
The following exchange occurred in cross-examination:[56]
QWhy is Miss Henley’s inability to reason, why is it that she can’t understand it is wrong to light the fire.
AWell, the inability to reason deprives her of even considering wrongfulness or making a judgment about that. It was so impulsive, so reckless, so unreasoning, that I don’t think she could be said to have appreciated the wrongfulness of the conduct at exactly that time.
[56] T 57.14-20.
Although he agreed that the defendant’s act in dropping her cats to the vet demonstrated she was able to engage in reasoned thought at that time, he distinguished between her decision to commit suicide, her decision to drop the cats to the vet and her decision to light the fire, the latter being a sudden, impulsive decision in the context of a very severe depression.[57]
[57] T 58.1-59.13.
When asked whether his opinion in that respect would change if in fact the defendant had determined to light the fire during the morning, rather than in the afternoon after taking the cats to the vet, Dr Branson said that he did not believe that to have been the case, based on the history as provided to him by the defendant. He agreed that if that was true, and the defendant took her cats to the vet to keep them safe from the fire, then it was possible she did appreciate that lighting the fire was wrong.[58] He later said, in response to questioning by me, that he did not discuss this alternative factual scenario with the defendant and would need to do so to determine whether it impacted on the opinions he had otherwise expressed.[59]
[58] T 59.21-60.1.
[59] T 67.14-32.

Dr Branson explained that even if the defendant had thought earlier in the day about lighting the fire that did not necessarily mean that at the time she lit the fire she appreciated the wrongfulness of her conduct. This would depend upon the extent to which her major depressive illness and suicidal thoughts were impacting on her state of mind at that time. In this respect he noted that the defendant was still presenting in a highly dissociated state when in hospital, which in his view supported his opinion as to mental incompetence.[60]
[60] T 69.8-70.20.
In re-examination Dr Branson agreed that someone in a dissociated state may not necessarily have an awareness of the passage of time, depending on the severity of the state of dissociation.[61]
[61] T 71.6-15; T 71.24-27.
Dr Branson did not have any particular concerns as to the defendant’s veracity, despite being told of a different history being obtained by Dr Rose as to the timing of the decision to light the fire and some differences in her history as to the circumstances of her 2013 suicide attempt when compared to the LMH records pertaining to her admission at that time.
It was suggested to Dr Branson in cross-examination that the defendant’s behaviour in fleeing from the unit taking with her the medication, alcohol and her bag, was inconsistent with his finding that just moments before she did not know her conduct was wrong.
Dr Branson’s response was very similar to that of Dr Rose, namely that the sudden explosion of fire would serve to focus the defendant’s mind on what she was doing and what she had done, and that the instinct for self-preservation likely kicked in. He said the fact she took the items she needed to continue with her suicide attempt was not surprising, albeit it demonstrated she was, at that time, able to reason enough to know she needed to take them with her.[62]
[62] T 62.22-64.5.
As to s 269C(c) of the Act, Dr Branson described the defendant’s actions as ‘essentially out of control’ at the point she lit the fire, such that ‘it didn’t seem to me that she was really able to control that conduct at the time.’[63]
[63] T 52.24-27.
In cross-examination he stated that ‘arguably nobody is ever totally out of control of anything but just in terms of the impulsivity and the suddenness of the act, it seemed to me that is about as unable to control your conduct as can be.’[64] He agreed that the fact the defendant turned her mind to the necessity to retrieve the methylated spirits and the matches indicated that, to some extent, she had control over her actions.[65]
[64] T 55.12-17.
[65] T 55.25-56.11.
Submissions
Defence counsel reiterated the opinions expressed by Dr Rose and Dr Branson which supported the defendant’s claim that she was mentally incompetent at the time she lit the fire. Although there was some difference for the basis of those opinions, he noted that neither opinion had been contradicted.
Defence counsel submitted that the explanation given by the defendant as to why she told Dr Rose the thought to light the fire was made in the morning, namely that she was unaware as to the time given her mental state, was consistent with her being in a dissociative state at the time. He reminded the court as to Dr Rose’s view that the defendant was a person who ‘would struggle greatly with significant deceit’ and was unable to disguise her honesty or anger.[66]
[66] T 16.22-30.
The prosecutor submitted that neither Dr Rose, nor Dr Branson, had applied the correct legal test with respect to mental incompetence, such that I should reject their opinions.
Dealing first with Dr Branson’s opinion as to s 269C(c), of the Act, the prosecutor submitted that the defendant’s clarity of thought, in knowing she required accelerant and matches and taking steps to retrieve them in order to light the fire, demonstrated that she was not totally unable to control her conduct, as required to meet the relevant criteria. She submitted that Dr Branson had effectively conceded as much in his evidence.
As to s 269C(b) of the Act, the prosecutor submitted that neither expert had applied the correct legal test namely, was the defendant, by reason of her major depressive disorder, unable to reason with a moderate degree of sense and composure that her act in setting fire to the unit was wrong.
She submitted that on all of the evidence I could not be satisfied that the defendant’s mind was so disordered at the time she lit the fire that she was unable to appreciate the wrongfulness of her actions.
In this respect the prosecutor submitted that both experts had placed emphasis on the claimed impulsivity of the defendant’s decision and act to light the fire in expressing their opinion pursuant to s 269C(b). She submitted that in doing so, the experts had equated impulsivity with mental incompetence, and had not properly considered the question as to whether the defendant’s mind and thinking was so disordered by reason of her mental illness at the time that she could not have appreciated the act in lighting the fire was wrong.
The prosecutor argued that in doing so, the experts had confused the concepts of recklessness and mental incompetence. She argued that the defendant’s actions, in making a clear and logical decision to overdose on pills and alcohol, of taking her cats to the vet, of deciding to erase her memory by lighting the fire, all demonstrated that she was thinking clearly about her future and her family in the context of wanting to end her life. She submitted these actions demonstrated that the defendant knew exactly what she was doing, that she was thinking rationally and logically about the steps she needed to carry out her plan and that in setting the fire she was acting deliberately and purposefully in order to achieve her stated goal. It was submitted the defendant was reasoning with a moderate degree of sense and composure, such that she did understand that lighting the fire was morally wrong, and that the defendant had not displaced the presumption of mental competency.
The prosecutor submitted the defendant’s actions in retrieving the methylated spirits and matches were inconsistent with her thinking being so disordered and outside the realms of normality such that she did not have the ability to appreciate her conduct was morally wrong with a moderate degree of composure. The prosecutor argued that merely acting impulsively was insufficient, unless it was accompanied with an inability to reason her conduct was wrong.
It was submitted that although the defendant may not have considered the consequences of lighting the fire, this did not mean she did not have the ability to understand the act of lighting the fire was morally wrong. She submitted that Dr Rose had conflated the two concepts of reckless indifference and mental competence in that she had based her opinion on the issue as to whether the defendant appreciated the wrongfulness of her conduct on the fact she had not considered the consequences of her actions at the time she lit the fire.
The prosecutor emphasised what Dr Rose had said during examination-in-chief as to the basis for her opinion, namely:[67]
I believed, however, that because of her mental state, the depression, the personality difficulties and the dissociation, associated particularly with the depression and personality difficulties, that she was not fully aware that the conduct was wrong. She was absolutely fixed on ‘I’m going to do this. I’m going to do this now. I’m going to die now. I’m going to do this without thinking and planning it. I’m going to do it.’ She didn’t stop to think about anything other than that, her need. ‘I’m going to set fire now before I think about it.’
[67] T 26.18-28.
She suggested Dr Branson had also applied the wrong test, namely he was satisfied the defendant had not considered her conduct to be wrong at the time she lit the fire, rather than being satisfied as to whether, at that time, she had the ability to reason her conduct was wrong.
The prosecutor also emphasised that the defendant’s actions immediately after lighting the fire demonstrated that she was acting with clarity of thought. She submitted those actions were inconsistent with her mind being in such a disordered state, moments earlier, as to being unable to appreciate her conduct was morally wrong.
Further, the prosecutor reminded the court that in each instance Dr Rose and Dr Branson had based their opinions largely on the subjective account given to them by the defendant, an account which had not been tested under cross-examination, such that I should exercise caution in accepting their opinions.
Findings
Although the defendant did not give evidence, the records in evidence from the LMH support a finding that for many years the defendant has suffered significant mental health issues, which at times have been so severe that she has made several attempts to take her life.
The evidence supports a finding that at the time the defendant lit the fire she was intending to take steps to end her life. In the days preceding the fire she made notations in her diary consistent with such an intention. The diary entries refer to sleeping pills, alcohol, ‘sharp blade’ and a query as to what to do with her two cats. Importantly these entries make no reference to anything connected with fire.
The observations of the defendant’s neighbour, Ms Plew, are pertinent. She stated:[68]
Weeks before the fire happened I had not seen Grace. I would describe Grace as ‘withdrawn’ and on the last occasion I became concerned about Grace’s behaviour as she appeared even more withdrawn.
[68] Exhibit P1, Statement of Maree Loudes Plew dated 19 December 2016 at p.2.
Ms Plew also commented that the defendant’s reported behaviour in taking her cats to the vet in a taxi, with her hair down, was totally out of character.
These observations, albeit in a small way, are consistent with the defendant’s description of her state of mind in the months and days leading up to the fire.
There is no dispute the defendant was suffering a major depressive disorder at the time she lit the fire. Her actions and decision making on the day of the fire must be considered in this context, as must her recollection now of precisely what occurred and in what order, on that day.
The prosecutor highlighted the numerous decisions made by the defendant both immediately prior to and after she lit the fire. The defendant has consistently maintained that the decision she made to light the fire was done so as to erase her past, to obliterate any record of her or her belongings, to make it as if she had never existed. It was submitted that this demonstrated the defendant was capable of reasoning, of being aware of the likely consequences of her actions and of acting so as to achieve a stated goal.
While there is some strength to that submission, it is important to remember that at that time the defendant was fixated with a desire to end her life, while suffering a major depressive illness. Although she was able to think about how and why she could complete certain tasks, that does not, in my view, equate to a finding that she was therefore ‘reasoning with a moderate degree of sense and composure’. It does however demonstrate that she was aware of the nature and quality of her conduct and able to control her actions.
I reject Dr Branson’s opinion that at the time the defendant lit the fire, the defendant fulfilled the criteria for mental incompetence pursuant to s 269C(c) of the Act. She was able to control her conduct despite her mental impairment. She was capable of taking deliberate, considered and measured steps to achieve her stated goal, namely to set fire to her belongings with a view to erasing any evidence of her existence. She was able to control her conduct and did so.
However, in determining the potential application of s 269C(b) of the Act, the test was stated by Dixon J in The King v Porter:[69]
The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing but that he was quite incapable of appreciating the wrongness of the act…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 standards of reasonable people.
(my emphasis).
[69] (1933) 55 CLR 182 at 189-190.
Although Dr Rose agreed with a proposition put to her by the prosecutor that she had some initial concerns about the defendant’s veracity due to some apparent inconsistencies in her history, I note her observation that the defendant ‘would struggle greatly with significant deceit’.[70]
[70] T 16.29-30.
There were some inconsistencies in the defendant’s description of her earlier suicide attempt in 2013 when compared to that recorded in the LMH notes. However, it is important to remember that what the defendant was describing was a recollection from many years earlier and from a time when she was so mentally distressed she was attempting to take her life. As such, those inconsistencies do not cause me to otherwise doubt the defendant’s veracity.
The lack of any diary entry relating to the fire is consistent with the defendant’s claim that the decision to light the fire was one she made impulsively, and separately to her earlier decision to end her life. The defendant’s description to Dr Branson, Dr Rose and Ms Plew as to what she did on the day prior to lighting the fire, is also remarkably consistent.
The fact the defendant lit the fire before taking the tablets, being out of order, was also consistent with her decision to do so being spontaneous and impulsive, rather than something she had spent several hours thinking through. As such despite not hearing evidence from the defendant I accept her claimed explanation for her comment to Dr Rose that she made the decision to light the fire ‘in the morning’ being in error, and the result of the defendant being unaware of the passage of time due to her dissociated state.
I accept and find that on the day of the fire the defendant was in an ‘almost dreamy’ state in the context of having felt ‘unreal’ for several days, and of documenting her plans for suicide, which were becoming increasingly stronger. She tried to distract herself from thoughts of suicide by watching a movie but was unable to do so. I accept that consistent with her earlier planning, she took her cats to the vet, not to keep them safe from a fire, but to ensure they were cared for when she ended her life. I find on balance that she only made the decision to light the fire upon returning from the vet.
I accept the evidence of Dr Rose that immediately prior to lighting the fire the defendant was not psychotic, rather she was in a moderate state of dissociation, such that she was disconnected from reality, in her own ‘bubble’, and unable to consider things outside of that bubble. This meant she was unable to think about the consequences of her actions, and was fixated on achieving her goal to end her own life.
I agree with the prosecutor’s submissions that if the defendant was unable to consider the consequences of her actions this does not mean, of itself, that at the time she lit the fire, she was unable to reason with a moderate degree of sense and composure that her conduct was morally wrong.
However, I note Dr Rose’s opinion that at the time the defendant lit the fire, she was suffering a significant level of depression and her thinking was focussed on the task at hand, namely to end her life and the steps to take around that, rather than beyond that. As Dr Rose said, it was that level of depression ‘that left her unable to think more broadly about the wrongfulness of what she was doing’.[71]
[71] T 30.28-36.
The fact the defendant was able to appreciate the necessity to have an accelerant and a match to light the fire, and able to take steps to retrieve these, is consistent with her acting purposefully within her bubble. It is consistent with her having knowledge of the nature and quality of her conduct and is consistent with her having control over her actions. Using the terminology Dixon J used to address the jury in The King v Porter,[72] she knew she was lighting a fire, she knew how she was lighting the fire and she knew why she was lighting the fire. However in the context of her major depression, and dissociated state, it does not, in my view, demonstrate the defendant had the broader ability to reason with a moderate degree of sense and composure that her conduct was morally wrong.
[72] (1933) 55 CLR 182 at 189.
I agree with Dr Branson that at the time the defendant lit the fire she did not turn her mind to the fact her conduct was wrong, being conduct fundamentally inconsistent with her concerns to protect the environment. I agree with the prosecutor’s submission that is not the test under s 269C(b).
However I also find, based on my analysis of all of the evidence, that because of her mental illness, the defendant did not have the ability to reason with a moderate degree of sense and composure that her conduct was morally wrong. I find that the defendant’s state of mind at the time she lit the fire was disconnected from reality, such that she was unable to think beyond the task at hand and to the wrongfulness of her actions.
While her actions in retrieving the methylated spirits and matches were purposeful in the context of her impulsive decision to light the fire, by reason of her major depression, the defendant was fixated on ending her life and erasing her existence, and incapable of thinking sensibly and in a composed manner beyond that.
The prosecutor placed considerable emphasis on the fact the defendant panicked immediately after lighting the fire and ran from the unit, taking her bag, pills and alcohol with her. I accept the evidence of both Dr Rose and Dr Branson that this is consistent with the ferocity of the fire, in terms of the heat, the noise and the smoke, shocking the defendant back into a sense of reality and prompting her inherent desire for self-preservation. While this was only moments in time after the act of lighting the fire, it does not, in my view, mean that when she lit the fire the defendant knew that her conduct was wrong in the manner described by Dixon J.
The prosecutor also argued that the defendant’s act in lighting the fire was another cry for help, rather than a genuine suicide attempt. While it is possible that was the case, the defendant’s conduct in destroying her belongings, and leaving the unit without taking her dead cat’s ashes or photographs, tells against this.
When all of the evidence is carefully considered, I am satisfied that at the time she lit the fire, the defendant was suffering significant major depression. Her actions in lighting the fire were impulsive and undertaken in the context of a fixation to end her life, in circumstances where previous such attempts had been unsuccessful.
Although the defendant was able to act purposefully in taking steps to achieve this goal, I am satisfied on the balance of probabilities that when she lit the fire she was suffering significant major depression, with suicidal thoughts, as consequence of which the defendant was unable to reason with a moderate degree of sense and composure that her conduct was wrong, having regard to the everyday standards of reasonable people.
I am satisfied that at the time of the alleged offending, the defendant was mentally incompetent to commit the offence pursuant to s 269C(b) of the Act.
Orders
1Pursuant to s 269FA(3)(a) I record a finding that it has been established on the balance of probabilities that at the time of the alleged offending, the defendant was mentally incompetent to commit the offence pursuant to s 269C(b) of the Act.