R v Jason Paul Kitson No. Dccrm-02-1354

R v JASON PAUL KITSON
DCCRM – 02 – 1354
REASONS FOR FINDING
OF HIS HONOUR JUDGE KITCHEN

The accused is charged with the offences of attempted rape, indecent assault, aggravated serious criminal trespass in a place of residence and common assault. The first two offences allegedly occurred on 3^rd June 2001 and the last two on 18^th July 2001. Each alleged offence occurred at the house premises in Kidman Park which the complainant shared with her female friend and the friend’s 8 year old daughter.
The accused pleaded not guilty to each charge.
The accused raised the defence of mental incompetence in relation to each of the charged offences. Pursuant to Section 269E of the Criminal Law Consolidation Act (the Act) and at the request of counsel for the accused and counsel for the prosecution I decided to proceed first with the trial of the mental competence of the accused.
Pursuant to Section 269B(1) of the Act the accused elected for the trial of his mental competence to be by a Judge sitting alone.
A person’s mental competence to commit an offence is presumed unless, on an investigation under Division 2 of Part 8A of the Act, he is found to have been mentally incompetent to commit the offence: Section 269D. By Section 269C, a person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, that person is suffering from a mental impairment and in consequence of the mental impairment does not know the nature and quality of the conduct, or does not know the conduct is wrong or is unable to control the conduct; a mental impairment includes a mental illness (S.269A).
The question then is whether the accused has established on the balance of probabilities (S269F.A(3)) that at the time of the alleged offences he was mentally incompetent to commit the or any of the offences.
The accused is 32 years old. For a number of years the accused and the complainant were intimate friends. In about 1996 the friendship ended and there was no contact between them until in April 2001, after the accused visited the complainant’s mother at a shack on the River Murray, the complainant telephoned the accused’s mobile telephone, the number of which he had left with the complainant’s mother, and spoke to the accused; the accused went to the shack and stayed there with the complainant and her mother for two or three nights. The complainant said the accused was “a bit strange and his behaviour was a bit over the top”; he told the complainant he wanted to marry her to which she replied she could not because she “didn’t really know him anymore and we haven’t spent any time together”.
About two weeks later the accused arrived “unannounced” to visit the complainant at the house she shared with her friend in Kidman Park. He stayed for about an hour and-a-half during which the complainant observed that “he was scatty, there was something not quite right” – she told him not to come to her house again unannounced.
Two weeks later the accused telephoned the complainant and said he was in the area; she invited him to the house. On this occasion he stayed for about two hours, during which the accused telephoned his then girlfriend to end the relationship. The complainant thought that conduct “really weird” and “told him off”. In her statement she said she had obtained and gave to the accused some information and brochures about his “disease” and talked at length about those with him.
At about 4.30 p.m. on 3^rd June 2001 the complainant was asleep in her bedroom. She was on her bed, under the cover of a quilt, wearing a tank-top and boxer shorts. Both her friend and the friend’s daughter were in the house. She awoke to find the accused standing by her bed. He said “Why don’t you just rub it in”; asked what he was talking about he said “All the men’s stuff, why don’t you just rub it in”. On the floor near the complainant’s bed there was a pair of boots, on the bed there was a man’s shirt and on her dressing table there was a tie, all part of the complainant’s uniform for work. Thinking “It may have looked like I had a guy staying over I said ‘What are you talking about, its my work stuff’”. The accused then left her bedroom and she heard him speak to (she thought) her friend’s young daughter. Then, as the complainant was about to get out of bed to go to investigate, the accused returned to her bedroom; it seemed to the complainant that the accused was “a bit edgy, a bit springy on his feet (and) he didn’t seem quite right”; he mumbled something about an iced coffee, sat on the bed and “started saying that he wanted sex” kissing her on her face and neck. The complainant said “J don’t, stop it”. The accused said “something like ‘If you’re not going to give it to me I’ll rape you’”, then got onto the bed, straddled her, pinning her down, squeezed her breast hard and bit her arms, breast and face. The complainant relates that she struggled and screamed. The accused “grabbed the outside of my vagina through my boxer shorts”. She said “Don’t do this J” to which the accused replied “Don’t call me that, I don’t like it, call me Samuel”, and continued biting and licking her in what she described to be an almost “frenzied attacking”. She then described “We looked at each other and made eye contact even though my head was still jammed down. I could feel that he sort of released some pressure on me”, she managed to free one of her arms from under the quilt, throw off the quilt, swing herself to the other side of the bed and reach for the telephone; as soon as she picked up the telephone the accused left her bedroom and the house.
The complainant went out of the bedroom and found her house-mate in the loungeroom to whom, in a state of distress (as the house-mate states), she complained that the accused had got on top of her when she was in bed, bit at her neck and breasts and said he was going to rape her. The house-mate states that about one or two hours later she answered the telephone, the caller identified himself as Jay and then asked her to bring the complainant to the telephone to which she responded that he was “not to ever ring my house ever again” upon which the caller hung up the telephone.
Those are the events of the first two counts - attempted rape and indecent assault.
There was no further contact or communication between the complainant and the accused until Sunday 18^th July 2001. At about 9.50 a.m. on that day, the complainant relates, she was awakened by the accused’s voice calling out the name of her house-mate. The house-mate was not at home – the complainant was alone in the house. Through the thin curtain material hanging in the doorway to her bedroom, the complainant saw the accused coming toward the bedroom. She got up, dressed, and confronted the accused just outside the doorway to the bedroom, demanded “What are you doing here”, whereupon the accused grasped her by her upper arms, she pushed against him causing him to move backwards toward the rear sliding door where she pushed him through the doorway, closed and locked the door and then telephoned the police.
Those are the events of the third and fourth counts – criminal trespass and common assault.
On 2^nd August 2001 police officers went to the accused’s flat. There was no response to knocking on the door. As they were about to leave, one of the officers saw a person within the flat peering at him through a window. Returning to the door there was again no response to knocks on the door. Police reinforcements were called, including a negotiator who, after about twenty minutes, was able to persuade the accused to leave the flat. He was arrested. He was questioned later in the day; the questioning was recorded on an audio/visual device and a transcript of it was produced.
Three psychiatrists gave evidence at the hearing; Dr Craig William John Raeside, Dr Maria Tomasic and Dr Jules Gerard Begg. Reports by each of them were tendered.
Dr Raeside first saw the accused on 7^th August 2001 at the Adelaide Remand Centre as part of a weekly psychiatric clinic he provided to inmates of the Centre. After speaking for some fifteen or twenty minutes with the accused, Dr Raeside arranged for the urgent admission of the accused to James Nash House, because of concerns about his mental state, where the accused remained (detained for some of the time under the provisions of the Mental Health Act) until 19^th September 2001 in the care of Dr Raeside or his colleagues being treated for an acutely psychotic state, a feature as I understand of the condition Dr Raeside diagnosed to be chronic schizophrenia.
Dr Raeside said that the accused had first been treated by a psychiatrist in 1997, was the subject of orders by the Guardianship Board in 1998 and 1999 and his most recent admission to a hospital for treatment, prior to 2001, had been the preceding Christmas.
Dr Raeside prepared a report on 18^th September 2001 for the purposes of a bail application by the accused. That report was based upon his involvement as the accused’s consulting psychiatrist while the accused was detained in James Nash House. For the purposes of preparing his further report dated 7^th November 2001 (Exhibit D1) Dr Raeside, who by that time had entered private practice, spent about half an hour with the accused; he had also read the statements by the witnesses and viewed the audio/visual recording of the accused’s interview by police officers on 2^nd August 2001. In his report dated 7^th November 2001 Dr Raeside set out his opinion:
“Mental Competence
In my opinion Mr Kitson was probably suffering from a mental disorder at the time of both offences, namely Chronic Schizophrenia with an acute relapse secondary to non-compliance with medication.
There is insufficient evidence to suggest that your client did not know the nature and quality of his actions. Rather, the information that is available would tend to suggest (if the witness statements are accurate) that he had some understanding of what was happening, in that he wanted to have sex with the victim. Further in relation to the trespass, there is no information to suggest that he did not know that he was entering into the house and that she did not want him there. The only dispute appears to be his ability to clearly understand the victim’s requests.
However, in relation to whether your client was able to know the wrongfulness of his actions I believe that there is significant evidence to suggest that he was unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions both at the time of the alleged intention to rape as well as the trespass. His thinking appears to have been significantly affected by his psychotic process and it appears that he may have been unable to rationally understand the victim’s reluctance, as well as possibly basing his anger on a misperception (that she was seeing another man). Although there is some doubt about this, in my opinion, on the balance of probabilities, I believe that he was unable to know the wrongfulness of his actions on both occasions.
There is no indication that your client was unable to control his conduct by virtue of mental illness.
Therefore, I would support a mental impairment defence in relation to all of Mr Kitson’s offences based on the reasoning above.”
Dr Tomasic and Dr Begg prepared reports which were requested by the Court, pursuant to Section 269WA of the Act, in February 2002 and May 2002 respectively.
Dr Tomasic interviewed the accused in March 2002 for the purposes of her report dated 14^th March 2002 (Exhibit D3); she also read the accused’s clinical case notes, the statements by the witnesses, the transcript of the accused’s record of interview on 2^nd August 2002 and Dr Raeside’s report (Exhibit D1). She expressed her opinion to be:
“Issues of Competence
Mr Kitson suffers from a mental illness, namely Chronic Schizophrenia and all of the evidence suggest that he was acutely psychotic at the time of the offences.
He appears to have a good understanding of his current charges, the significance of various pleas, and a reasonable understanding of the court and its officers. Therefore I think that he is currently fit to stand trial.
He appears to have had an adequate understanding of the nature and quality of his conduct at the time of the offences. However I would agree with Dr Raeside that Mr Kitson did not have an adequate understanding of the wrongfulness of his actions, based on his delusional beliefs about the victim and their relationship and his misinterpretation of events and comments secondary to his psychotic mental state.
There is no evidence to suggest that he was unable to control his conduct at the time of the offences.
Therefore in summary I consider that there are grounds for a mental impairment defence secondary to him having an inadequate understanding of the wrongfulness of his actions based on being unable to reason with a moderate degree of composure about the wrongfulness.”
Dr Begg interviewed the accused on one occasion in May 2002 for the purpose of preparing his report dated 7^th June 2002 (Exhibit D5); he also read the accused’s clinical case notes, the statements by the witnesses, the reports of Dr Raeside and Dr Tomasic and viewed the audio/visual recording of the accused’s record of interview.
In his report Dr Begg wrote:
“I note that Doctors Raeside and Tomasic formed the opinion that a mental impairment defence was available to Mr Kitson on the basis that he was not able to reason with a moderate degree of sense and composure about the wrongfulness of his actions. In my opinion the paranoid element of his schizophrenia interfered with his ability to judge whether or not Melanie was having an affair. He had difficulty separating his past anger that she had had an affair when they had had their first relationship from the present situation. Ms Page’s comments that he appeared crazy is consistent with his high degree of paranoia at the time of the assault. However the issue is not simply one of how he formed the erroneous belief but whether having formed that belief the actions which followed as a consequence of that belief, namely the attack upon Ms Page, was he able to reason about the wrongfulness of his actions? Evidence in favour of an inability to reason about the wrongfulness of his actions is that he did not appreciate early in the attack on Ms Page that what he thought was a playful sexual touching was being perceived by Ms Page as a violent attack. His asking to be called Samuel suggests he was unaware of his own identity. It appears from the statement of Ms Page that the attack was terminated when she used his name and gained eye contact, this I would interpret as an orienting response which brought him back into the reality of his situation. There are other factors present at the time of the attack which suggest that he was able to reason about the wrongfulness of his actions. His entry into the room was in a organised and planned manner consistent with the past experience of speaking with Ms Page’s house-mate, speaking to the young girl in the house and sitting on the side of Ms Page’s bed. When he stopped the attack on Ms Page he left the premises in an orderly manner, he did not respond to her angry retort. In effect I believe this is an acknowledgement that he understood the wrongfulness of his actions, if he was so unwell that he could not reason about the wrongfulness of his actions then I do not believe he would have left the premises and kept away from contacting Ms Page as long as he did. He rang in the evening to enquire about Ms Page which I believe is an appropriate thing to do if he believed that he may have upset her by his actions. He appears to have complied with the direction he was given not to recontact Ms Page for some weeks. Again I believe this is consistent with him being able to reason adequately about the wrongfulness of his actions.
In regards to the second charge of trespass a few weeks later there is nothing to suggest that at the time he was not aware of his actions, indeed when asked to leave the premises he did. I note from his version that he did not enter the premises
In summary therefore I believe that at the time of the offence Mr Kitson was suffering from paranoid schizophrenia which did affect his attitude towards Ms Page however not to the extent that he could not reason with a moderate degree of sense and composure about the wrongfulness of his actions. I agree with the report of Doctors Raeside and Tomasic where they form the opinion that there was insufficient evidence to suggest that he did not know the nature and quality of his actions. I agree there is no indication that he was unable to control his conduct by virtue of mental illness.
I asked Mr Kitson a series of questions pertaining to the legal process, he quickly grasped the nature of my questions and was able to give a satisfactory understanding of the charges he is facing and the legal process.
Based on the reasons cited above and the information presented to me it is my opinion that he is fit to plead. It is my opinion that he does not have a mental impairment defence available to him.”
Each of Drs. Raeside, Tomasic and Begg gave evidence elaborating on their respective reports, and were cross-examined. Each of them states that at the time of the alleged offences the accused was suffering from the mental illness schizophrenia – chronic schizophrenia (Drs Raeside and Tomasic) or paranoid schizophrenia (Dr Begg).
Dr Raeside has considerable experience in the field of forensic psychiatry including six years full-time employment as a consultant in forensic psychiatry to the South Australian Forensic Mental Health Services. Dr Tomasic also has training in and has held positions in forensic psychiatry. Dr Begg embarked on general psychiatry as a trainee in 1995; in 1999 he was employed in forensic psychiatry for six months at James Nash House, in 2000 he gained a fellowship in psychiatry and since in the year 2001 he has been engaged full-time in general adult psychiatry with a special interest in psychotherapy and forensic psychiatric examinations.
Dr Raeside said he arrived at his opinion that the accused did not know his conduct on 3^rd June and 18^th July was wrong, because of his mental impairment, with “around the 70% mark of confidence”. Asked to identify the factors which caused him to state in his report “Although there was some doubt about this, in my opinion on the balance of probabilities, I believe that (the accused) was unable to know the wrongfulness of his actions on both occasions” he said his general practice was to approach with caution these types of matters where there is a sexual offence involved; he went on:
(P22)
"A… For example, someone can be acutely psychotic and be very unwell but still form the intent to commit a sexual act – not an illegal act but any sexual act – so that may be an element as to whether a person is mentally ill. But a mental illness may impair whether someone knows whether someone has consented or not because they may be so confused.”
…
(P22-24)
"A… One of the causes of my doubts is that he appears to have been an angry man; the victim describes him being aggressive towards her. She certainly doesn’t describe a loving caring sort of action, the action of a warm close relationship. It appears that his anger was related to his belief that she had been unfaithful to him, even though my understanding is that there had not been a relationship between them for five years or so, perhaps with some contact in that time but essentially nothing for five years. So working backwards, that is the issue that raised my concern, and the doubt there is that the actual act with which he has been charged relates to some anger, relates to his action acting in an aggressive manner.
It then depends on why he became angry and what that is based on. I believe that is based on paranoid delusional ideas, which means his thinking is not rational. He believes that Ms Page has not been faithful to him, that she is not therefore, if you like, responsive to him when he comes into the room, believing that there is some sort of a relationship between them that on the evidence clearly does not exist.
So you have two steps to it: the first that is (sic) he is psychotic, paranoid and is acting on the basis of those paranoid delusional ideas, but then that is fuelled by what might be considered rational anger. I will just clarify that. If Mr Kitson was not psychotic and he was not suffering from mental illness at the time and was, in fact, in a relationship with Ms Page and came in and saw her with another man, or had other evidence that she was being unfaithful to him, then he could rationally – become angry and even aggressive towards her. That would not offer him a mental impairment defence, it could not be based on a mental illness.
My opinion is that he has become angry based on his underlying paranoid delusional ideas and then acted on the basis of those ideas. In other words, as I have indicated in my report, I do not believe that he was able to reason with a moderate degree of sense and composure about the wrongfulness of those actions when taken as a whole.
As I understand it, Dr Begg has looked solely at the second part of that equation, which is his angry and aggressive response to her. One could argue that is a rational response if one believes that she was being unfaithful to him. It may not make it right in a moral sense, but one could understand that on a rational basis, rather than based on a mental illness.
But I think his actions were based on underlying paranoid delusional ideas. Therefore I came to some opinion that, whilst there is some doubt in that regard, taken as a whole, he was unwell and was acting in that psychotic state which impaired his reasoning overall.”
And, concerning the incidents on 18^th of July:
(P26)
"A… I think that again is in the context of him having no understanding of the inappropriateness or particularly the wrongfulness of his contact with her. I think it also supports my opinion about his earlier offence, in that if he had understood, appreciated, known the wrongfulness of what he was doing, he was unlikely to have attempted to make further contact with her. Now I accept that there are people who continue to act in that way without knowing themselves, but this is all based on the underlying foundation that he was acutely psychotic at the time, and he had delusional beliefs about his relationship with her.”

In cross-examination Dr Raeside explained further:
(P28-30)
"A… I think if you had stopped him in the doorstep before he walked in and said ‘Is it wrong to rape someone?’ he would have said ‘Yes’. He was able to appreciate that rape was not a good thing and that it was morally wrong. However, I think that based on his delusional ideas he then acted in an aggressive way; I wouldn’t say such as one might in a normal relationship, because I don’t know whether that is the case. What I am suggesting is that his whole course of actions were arising out of delusional beliefs. So therefore he felt, thought, understood that what he was doing was consistent with those beliefs. Whether those actions then – again it’s whether you put them together as a whole or separate them. If you separate them and say at some point that stops and then you just judge him basically on his actions, I think he could have accepted – he would have had an understanding that was inappropriate or wrong, but he doesn’t seem to have done anything else about it. He hasn’t hid or gone in wearing a balaclava or any of those things that would sort of go with a random rape or something like that. So I think it’s a difficult issue, which is why I put the doubt question in there and I can’t be any more specific than that.
(P31-32)
“A… (He) had visual images of her supposed infidelity in her bedroom. So in his mind he’s coming into the bedroom with his partner and sees his visual images, becomes angry and acts in a way that he’s alleged to have done. What I’m suggesting, your Honour, is that if we assume, for example, he had no mental illness, then, as you rightly say, that is not justification for him to act in that way, the mere fact of being unfaithful to him. What I’m suggesting is his thinking is distorted and whether those two issues are separated is one for your Honour. I can only point to the similar incident of which someone might kill another person, that, using the same logic, one could say well, just because I had a paranoid delusional belief about the nature of that person does not justify them in killing that other person, but a whole reason why they may have acted that way was based on a paranoid delusional belief.”
Dr Raeside said he believed the accused had an impaired appreciation of the complainant’s lack of consent. Asked whether he meant that the accused had no concept as to whether or not the complainant was consenting to sexual contact with him, he said:
(P33-34)]
"AWell, I have some reservations in that regard as well because – for two reasons: one he uses the word ‘rape’ with her. Secondly, he indicates, I believe, on the evidence from the victim, that he was going to get it from her anyway, which seems to indicate some idea that she was resistant to the idea of having sex with him at that time. So I think he understood that she was not consenting in that regard, but, based on his thinking at the time, he proceeded anyway.”
Dr Raeside’s opinion is that “If you were to ask (the accused) at the door ‘Is rape wrong?’ I believe he would have said ‘Yes’. If you were to stop him in the course of this conduct and say ‘Is what you are doing right now wrong?’ I believe that he would have said ‘No’ because based on the thinking and the reasoning, impaired as it was, that he was using”. The accused, he judged, believed that he was justified “or felt it was right to act” as he did based on his distorted thinking and his paranoid delusional ideas “because of the affront that he perceived had been caused to him” by, as I understand, the signs in the complainant’s bedroom of her “infidelity”.
Pressed whether or not the accused’s decision to cease his attack on the complainant and leave the premises indicated that the accused knew at that time that what he had been doing was wrong Dr Raeside said it was a possibility but unlikely; in his view the complainant’s pleas to the accused that he stop and then the act of picking up the telephone “was a further sign to him that she wanted him to stop and, probably in an angry way, he then left”.
Dr Raeside’s assessment of the accused is that prior to the alleged offences he lacked insight into the nature of his illness “his judgment was impaired and his ability to appreciate the benefits of treatment was also impaired”, and his mental illness “distorted the processes that go into” rational decision-making.
The principal features of Dr Raeside’s opinion are that the accused had a delusional belief, a manifestation of his mental illness schizophrenia, that there existed a close personal relationship between him and the complainant; on finding the complainant in her bedroom with articles he in his psychotic state perceived to indicate that she had been unfaithful to her relationship with him he, in a further manifestation of his illness, became angry and aggressive toward the complainant doing what he did to her in the bedroom in the delusional belief caused by his illness that he was justified in doing that. Concerning the events of 18^th July, his opinion is that the accused was becoming increasingly unwell, his delusional ideas about his relationship with the complainant persisted and he entered the house believing there was “an open invitation” that he could do so, unable to appreciate that it was wrong for him to go into the house.
Dr Tomasic explained that in her opinion the accused had a delusional belief about his relationship with the complainant and that he was very psychotic in schizophrenia at the time of the events on 3^rd June, misinterpreting what the complainant said and did. She considered it was a significant, bizarre thing that the accused asked the complainant to call him “Samuel”, and the complainant’s observations of his “scatty” behaviour and her description of his “almost frenzied attacking” conduct toward her “added weight to the fact (the accused) was acting secondary to his psychosis and his delusional beliefs”. Asked whether her opinion that the accused acted not knowing that his conduct was wrong, was a firm or “delicate” conclusion she said:
(P.63-64)
"AMore likely than not. I think it’s never black and white, there are always, you know, arguments for and against and there were some factors that, you know, could add weight to there not being a defence, you know, to him knowing, but I think there were more suggestions that he did not know.
QIf you are able to, can you just outline what factors you found persuasive to you to come to the affirmative conclusion that he did not know what he was doing was wrong.
AThere was clear evidence that he was extremely psychotic at the time, you know, to the point of disorganised thoughts, delusional thinking, bizarre behaviour and inappropriate behaviour, and that he has a history of psychosis, you know, that was well documented. The fact that he misinterpreted the significance of their relationship and her feelings towards him, not just in terms of a question of degree that it was delusionally based. So there seemed to be no evidence for his beliefs, yet he held them very strongly. The fact that his responses after – again I’d disagree with Dr Begg in his – he pointed to two things that he felt were against Mr Kitson not – against him not knowing the wrongfulness, and he said that one was that he left and didn’t respond angrily to her anger. I would actually see that as more consistent with his psychotic mental state at the time, because rape is a violent offence, I mean rape is violent and it’s anger based, yet all of his behaviour at that time was not anger, in fact it changed and it was inconsistent, and it seemed to be more likely to be secondary to psychosis and his thinking, which was not related to what was going on outside. And also the fact that he did ring her later that day, which again is inconsistent with something like an attempted rape, because it appeared that he didn’t understand the significance of his actions; even though he might have got some clue at the end that something was wrong, it certainly didn’t appear that he had a full understanding of how significant it was.
QThe full magnitude of what he was alleged to have done.
AYes.
QDo you place any weight in the factors identified by Dr Begg concerning his organised and planned movements before and after the episode in the bedroom.
AI don’t think that there was a question of Mr Kitson not being able to control his conduct, you know, in terms of the mental impairment defence, and that’s based on those sorts of things, that he was not completely disorganised in his behaviour. Things like walking into a building and opening a door, do not take a great deal of organization, so even people who have disorganised thinking and disorganised behaviour will generally still be able to do those sorts of actions, so I don’t think that that argues against it.”
Concerning the events of 18^th July Dr Tomasic’s opinion is that those appeared to be a consequence of the accused’s psychotic thinking and behaviour. Although, she said, it is very unclear what the accused was thinking at the time because he was not able to later describe it, it was not inconsistent with him being psychotic at the time, observing that generally memory is not well formed by persons who are acutely psychotic and neither are they able to later explain things.
Asked what countervailing factors she had considered before reaching her conclusions, Dr Tomasic said:
(P66)
"AI think against the conclusion, you know, it is always possible that this was retribution, that his actions were retribution for being rejected, they were based on anger. That’s always a possibility.
QThese are the actions of 3 June.
AYes. And the – I can’t actually recall – I didn’t bring my notes with me so I can’t recall the other –
QI’m sure they may be presented to you, but what about the factors identified by Dr Begg.
AThat’s right, no, the other thing, that’s right, was actually something that he said in Dr Raeside’s report, where he made a comment, and I haven’t got the quote in front of me, but he made a comment to say that he realised that the victim wasn’t happy with what was going on, but they are not the exact words. I’d have to look for that. He didn’t say anything like that to me but that, you know, might suggest that he had some appreciation of her distress, because my argument is that he didn’t have much appreciation, he didn’t seem to be in touch with what her reactions were at that time, so –
QYet, despite carefully considering those matters, you still were able to form the belief past the balance of probabilities that he did not know that his conduct was wrong on each occasion.
AYes, I think there was more evidence to suggest that he didn’t know.”
In cross-examination Dr Tomasic said that in her interview with the accused there was no suggestion he had an appreciation of the complainant’s distress in the events of 3^rd June; his version of the events, she observed, was “quite inconsistent” with that of the complainant but he appeared to her to be truthful and sincere in what he said. Asked whether the accused’s alleged use of words to the effect “I’ll take it anyway and I’ll rape you” suggested the accused knew the complainant was not consenting to sexual activity, Dr Tomasic said that if he used those words “that would add weight to the fact that it was an assault and he knew”; there was this further exchange:
(p.68-69)
"QJust assuming for the moment that those words were actually said, would that change your view about whether or not he appreciated the wrongfulness of his actions at that time, putting aside his history to you.
ASure, I understand.
QJust focusing purely upon what she says about that incident.
AIt would certainly change that, because it is a major factor if he were to have threatened her and then behaved according to that threat. There’s no doubt – even with that, there’s no doubt he was psychotic at the time, and his psychotic thinking would have affected his behaviour. But I think if I were clear that he had made that threat, I think that then would change, you know, the proportion of for and against, and I would say he did know the wrongfulness.
QSo in coming to your view that he did not know the wrongfulness of his actions, you have assumed that she is not a reliable historian about that comment about taking it anyway and threatening to rape; am I right about that.
ANo. Not that she’s not a reliable – I think it’s not the task of me doing a report to make a judgment about everything that the witness – that the victim might say, that’s a matter for the court to decide. I base it on the fact that there was no indication in the interview that he was lying, you know, that he was presenting, and so it’s based on that.
QBut if you were to put aside altogether his account, whether it be ‘That didn’t happen’ or ‘I can’t remember’, if you put aside altogether his account and you focus solely upon her account, and you accept that it’s a reliable account, would you then be of the view that he did appreciate the wrongfulness of his actions.
AI’m not sure that I can put aside his account completely. But if he had made the threat then I would say that it was less likely than not that he knew the wrongfulness, it was more likely that he knew the wrongfulness certainly.
QYou wouldn’t be satisfied, on the balance of probabilities, given that factual scenario, that he was mentally incompetent, at least he didn’t appreciate the wrongfulness of his actions.
AYes.”
However, putting aside the alleged words, and focussing only on the accused’s acts against the complainant Dr Tomasic’s view is that they would not necessarily suggest the accused knew that what he was doing was wrong; she explained that an acutely psychotic person can act in a bizarre or violent way under a delusional belief that the facts or circumstances are different from those which pertain. She said the accused’s description to her that the complainant “was being playful” was an obvious mis-interpretation of what was occurring.
Dr Tomasic agreed that the accused had described the incident on 3^rd June in different ways on different occasions but in her opinion a psychotic does not lay down memories in the normal way, they are not reliable historians and that the accused gave different descriptions of the same incident to different interviewers is consistent with him being psychotic at the time of the incident, so that although he knew that violence or rape was wrong the information she had “suggests he didn’t know that is what he was doing”. In Dr Tomasic’s view, that the accused after the incident on 3^rd June telephoned later that day to speak to the complainant was unlikely to have been for the purpose of apologising; given the complainant’s description of the incident, a call for that purpose “is inconsistent with the real event and more consistent with some distorted belief about the event”.
Concerning the incident on 18^th July Dr Tomasic said that from her recall, she having mislaid her notes, the accused did not have much memory of it. In her view his lack of memory was not a conscious decision to suppress a memory or to hide what he had done, but was most likely because of his illness. In her opinion the accused’s psychosis appeared to be worsening after early 2001 and based upon the accused’s pattern of behaviour in the period prior to 18^th July, and there being no information to suggest he knew what he did on that day was wrong, it is more likely than not the accused had irrational beliefs about what he was doing at the complainant’s house on 18^th July, although Dr Tomasic thought it to be “a difficult question to answer. I think based on the information and the pattern of behaviour it is more likely than not that (the accused) didn’t know the wrongfulness” of his actions on 18^th July “but there is lots of information missing”.
Dr Tomasic said that were the accused to have been so unwell as to not be able to know it was wrong to enter another’s house without permission, or to enter for the purpose of assaulting a person there, she would expect the accused to have had “problems” in for example other relationships and in maintaining employment; she pointed to the history included in Dr Begg’s report (paras 3 and 4 of page 4) to be information that the accused was having “problems” in other relationships and in obtaining work.
Dr Begg’s view is that the accused had been suffering from the mental illness paranoid schizophrenia since in 1998 which started to steadily deteriorate in about March 2001. In his opinion the accused’s illness significantly impacted upon how the accused saw his relationship with the complainant:
(P87)
"A… he’s likely to have had a strong sense of entitlement within that relationship, that the relationship was possibly more closer (sic) and intense and intimate than Ms Page may have viewed the relationship, and that, as a consequence of that view, he was in a position where he had, in effect, permission to be more intimate with her than perhaps Ms Page may have seen the relationship.”
but his conclusion was that the accused “was able to appreciate the wrongfulness” of his actions toward the complainant on 3^rd June. The factors which led him to that conclusion were:
·the accused told him he started making advances to the complainant at a time he had a mixture of emotions, including anger, toward her
·the complainant repulsed his advances, saying ‘no’ and pushing him away
·the accused “thought” that one of the comments she had made was she thought he had wanted to rape her, which the accused said (to Dr Begg) was a wrong impression about his intentions,
which showed to Dr Begg that the accused was able to think about what was going on during the incident with the complainant. Then the accused left, either having been pushed or asked to leave, and was yelled at by the complainant, which Dr Begg thought indicated the accused knew the complainant was angry with him; the accused did not “come back or retaliate toward” the complainant but then later in the day “rang to inquire how she was and that suggests to me that he had a sense that she had been upset by what he had done and in fact what he had done was wrong”; on being told (as the accused reported to Dr Begg) that he was not to contact the complainant again, he stayed away and eventually made contact with the complainant a few weeks later.
Dr Begg explained it was significant the accused did not remain at the house on 3^rd June. He said that whether a person understood that what they had done was wrong can be inferred from their actions after the event. Were the accused to have remained at the house, “or sat outside as if nothing had happened” that would imply he did not know what he had done was wrong. Dr Begg also said that in his view the accused’s behaviour before he entered the complainant’s bedroom the second time on 3^rd June – that is entering the house, going to the complainant’s bedroom, speaking with the young child in the household – did not appear to him to have been “terribly abnormal”, and, although the accused was suffering from a psychosis which was impacting on him, his prior functioning in the community indicated the impact was not to the extent his behaviour had become irrational.
Dr Begg agreed there were indications pointing to the accused not being mentally competent concerning the events on 3^rd June – the accused was confused by his strong emotions toward the complainant, he had “feelings” that she had been unfaithful to him, and:
(p.91-92)
"A… in this state of conflicting and opposite emotions, he seems to have made some statements to her that were not rational, like statements about ‘Having another girlfriend if I can’t get it from you’, that type of statement, I think, doesn’t bear a lot of logic but shows the degree of his anger. He made another statement about ‘Call me Samuel’ and when I asked about this he said ‘Well, it was an attempt to get her – if she didn’t like who I was as Jay, then maybe she would like me if I was Samuel’. So this shows that he was in quite a – if I can use the word, desperate state of mind where he was trying to grapple with very conflicting feelings, and in that state it is difficult to appreciate the wider ramifications of your actions. I guess ultimately when I thought about this to myself I thought; is this different to, say, a married man who wants to have sex with his wife and makes advances and becomes sexually aroused and then his wife says ‘No, don’t’ and I thought the key issue is; can he appreciate that she is saying ‘No, don’t, I don’t want to have sex tonight’? I felt that even though the reasoning about why he may have wanted to have sex and why he was angry was based in part, if not entirely but certainly in part, upon his psychosis; I felt that the reasons about whether she was saying yes or no, he was able to appreciate. So principally I fell on the side of finding that he was competent in my opinion.”
Asked how he would express his degree of confidence about the accused’s mental competence in relation to the events on 3^rd June, Dr Begg said “It wasn’t clear, it wasn’t obvious and it was finely balanced”. He said he was influenced by the opinions of Drs Raeside and Tomasic, which he respected, but:
(P92)
"A…ultimately it came down to the evidence that I could see about his capacity to know that what he was doing was wrong and that was, as I think I have already said, based upon his ability to reason about what was happening at the time, his ability to appreciate that she did not want to have sex with him and that being shown by his actions afterwards and, therefore, I came to a different conclusion to Drs Raeside and Tomasic.”

Dr Begg said it is known that schizophrenia is a disorder which disturbs a persons ability to control their impulses and to control their emotions, such as to easily put aside their feelings, but on balance he concluded there was evidence to show the accused could exert sufficient control over his emotions, and his ability to reason, and therefore understood the wrongfulness of his actions.
Concerning the events on 18^th July Dr Begg said the accused told him, in effect, that he went to the house and then left when he was told he could not come in, whereas the complainant described something quite different. Dr Begg “looked for evidence”, in both the accused’s version and the complainant’s version, of delusional thinking by the accused, of his psychosis being worse on that occasion, but there was none to indicate the accused was mentally incompetent and so “I was left only with the conclusion” the accused was competent. He said the complainant’s version of events did not provide much information on the issue of the accused’s mental competence – on one view it could be he was so psychotic and therefore confused and unsure about what was happening so that he could easily be taken hold of, led out and told to leave as he did, or conversely were the accused to have been attempting to enter the house, experiencing angry feelings about the complainant’s infidelity, but then, appreciating he was not wanted when told to get out, on being pushed back he did not retaliate and “appropriately” left the premises. He agreed it was very difficult to predict precisely how a person with the accused’s mental illness might react in the circumstances of the events on 18^th July – whether he would be physically aggressive or compliant.
In cross-examination, Dr Begg confirmed that his conclusion the accused was not mentally incompetent at the time of the events on 3^rd June and 18^th July was essentially based on his analysis of the accused’s actions. He said it was clear the accused had a delusional belief, as a result of his mental illness, about his relationship with the complainant.
(P97)
"A… However, I differ from Dr Raeside in that I think what he was saying was that because of this delusional idea about relationship, therefore what he did he could not think clearly about it; whereas I am coming down on the other side of the fence, so to speak, in saying that yes, he could think about it and the evidence that he could think about it with a moderate degree of sense and composure is the way in which he was – or the way in which his behaviour afterwards and during the event signifies a capacity to think about what he was doing.”
Nevertheless, to the suggestion that the accused’s action or behaviour of entering the house in a fairly orderly manner, leaving the complainant’s bedroom and the house after the attack on her, and later in the day telephoning to speak to the complainant, were equally consistent with the accused not knowing the wrongfulness of his acts on 3^rd June, Dr Begg said he could see “that that is a possibility”. He also agreed it is a possibility that the accused’s inability to remember the incident on that day was because he did not fully appreciate the wrongfulness of his actions. He repeated that his conclusion concerning the accused’s mental competence was finally balanced, absent “clear evidence that (the accused) was mentally incompetent as I would have expected to have seen”, but agreed others in his field may reasonably take a different view: “I am under no illusion that it is finely balanced. I mean, I think Dr Raeside’s report says that as well”.
Concerning the possibility that the accused’s inability to remember what happened on 3^rd June was because he did not appreciate the wrongfulness of his actions, Dr Begg in re-examination said that there were other possibilities:
(P108)
"AWell, as I said, it may have been due to the presence of psychosis at the time, confusing his thinking, which makes it more difficult to lay down memories and recall those memories. It may have been because of his interpretation of what happened as being at variance with Ms Page’s interpretation. It may have been that her interpretation of what happened was as variance with his. And certainly it contained elements of him trying to make sense of the allegations that were made against him.”
all of which he had considered in reaching his conclusion.
Dr Begg said his conclusion that the accused did have sufficient capacity to know that what he was doing was wrong, was based principally on the accused’s actions as related by the complainant, the accused leaving the house and then re-contacting her afterwards and then staying away for some time. “So I don’t think I have actually given a lot of weight to his explanations of events”. He went on to say that were the accused to have said, for example, that it was clear the complainant wanted to have sex with him, when the evidence is she did not, he (Dr Begg) would have concluded the accused did not know that what he was doing was wrong:
(P.109)
"A… Whereas, that history did not come forth. I acknowledge it may be because he cannot remember that type of reasoning, and I presume that is essentially Dr Raeside’s reasoning, that he was so deluded that he was unable to reason. Whereas I came to the other conclusion, on the basis principally of his behaviour as reported by Ms Page, and the absence from him of strong delusional beliefs, although I do acknowledge that there were delusional beliefs present.”
Dr Raeside saw the accused on many occasions between 7^th August 2001 and 12^th November 2001, the date of his report Exhibit D1. Dr Begg was asked whether, that being the case, Dr Raeside was in a better position to assess the accused’s mental competence at the time of the alleged offences; he said:
(P110-112)
"AIt’s a difficult question to give a yes or no answer to. I mean, clearly in arriving at an opinion about mental competence, the more evidence you have, the easier it is, but ultimately the evidence has to be about the person’s functioning on the day in question. I think the advantage that Dr Raeside may have had is to certainly have more of an understanding of how Mr Kitson was responding to his delusional beliefs; to how strongly he was holding on to them at the time; how much he seemed to be – for want of a word, what is his insight into his beliefs at the time. And \if Dr Raeside clearly saw that – I think he said he was floridly psychotic when he was transferred to James Nash House. I’m not sure – I can’t recall seeing evidence about, you know, what his thinking about Ms Page was at the time, but if Dr Raeside was able to see evidence of that, then that would put him in a better position than I was to be able to move backwards to the actual night in question. But as I said, I have acknowledged that his thinking was influenced but (sic) his psychotic thought processes and, in particular, his delusions regarding Ms Page and his sense of entitlement to that relationship. So in that respect, Raeside may be in a better position to be able to make a judgment.”
Each of the three psychiatrists is of the opinion that at the time of the alleged offences the accused was suffering from a mental impairment, namely the mental illness schizophrenia. Their opinions on that issue were not challenged, and the information or other observations upon which each of them relied were in my view identified so as to provide a sound basis for their respective opinions. I therefore find that the accused has established that at the time of the conduct giving rise to the alleged offences he was suffering from the mental illness schizophrenia.
It is the opinion of each of the psychiatrists that the accused, notwithstanding he was suffering from a mental illness at the time of that conduct, did know the nature and quality of, and was able to control, the conduct.
The question for the court is whether on the balance of probabilities the accused, in consequence of his mental illness, did not know that the conduct was wrong.
What is meant by “wrong” in the context of Section 269C is not defined or explained in the Act. The defence of insanity before it was replaced by the provisions of Part 8A of the Act, is to be found in the M’Naghten Rules ([1843] 8 ER 718)as explained in more recent cases; to establish a defence on the grounds of insanity it was for the accused to clearly prove that, at the time of the committing of the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong “according to the ordinary standards accepted by reasonable people”. R v Balaban (1953) SASR 282, 289 per Napier CJ citing, inter alia, Stapleton v The Queen (1952) 86 CLR 358. In Stapleton’s case the court quoted with approval the following words of Dixon J (in R v Porter (1933) 55 CLR 182 at 189, 190:
“The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.”
Dr Begg’s approach to the question of the accused’s mental competence at the time of the events on 3^rd June was predicated on his opinion that the accused was suffering from the mental illness paranoid schizophrenia which deluded the accused to believe “he had, in effect, permission to be more intimate with (the complainant) than perhaps (she) may have seen the relationship”, and he was confused by his strong emotions toward the complainant and the conflict which was engendered between those emotions and the accused’s perception of infidelity on her part. Dr Begg then proceeded to reason, by analogy, whether the accused’s actions in pressing his sexual attentions upon the complainant were different from those of, as I understood, a married man not suffering from a mental illness whose wife rejects his sexual advances; so the question became was the accused, notwithstanding the mental illness which deluded him to believe he had an entitlement to embark on sexual intimacy with the complainant, able to appreciate the complainant’s rejection of his advances for that purpose and knew it was wrong to proceed as he did. Dr Begg looked to the accused’s actions before and after the accused’s actions against the complainant in the bedroom (and as I apprehend but to a lesser extent his words or his related memory of them during those events) to come to a finely balanced conclusion that the accused was able to reason, and appreciate, that the complainant did not want to have sexual relations with him and it was wrong for him to continue.
Dr Raeside’s approach was different. He, like Dr Begg, considered that the accused’s mental illness deluded him to believe he had a close personal relationship with the complainant; when the accused perceived what he believed were signs of the complainant’s infidelity in that relationship anger, which was based on his underlying paranoid delusional ideas, arose in the grip of which the accused was not able to reason with a moderate degree of sense and composure about the wrongfulness of his actions – indeed Dr Raeside’s opinion is that the accused’s thinking was distorted and in some way he believed he was justified in what he did.
Dr Raeside considered the accused’s behaviour at the house on 3^rd June, as a whole, upon the basis that in his opinion the accused was then suffering from the mental illness he identified which impaired the accused’s capacity to reason: while recognising it to be a possibility that ceasing the attack upon the complainant and leaving the house was an indication the accused knew his conduct toward the complainant was wrong, Dr Raeside for the reasons he gave considered that to be unlikely.
It is, no doubt, true that in order to decide as a matter of fact, what a person’s intentions or thought processes were at a particular time, the actions and words of that person before during and after that time are to be carefully considered and evaluated. That is the approach Dr Begg used as I understood. However it seems there may well be difficulties in the way of such an approach where the particular individual is suffering from a mental illness of the nature of that affecting this accused; - it may be that the affected person’s conduct arises out of delusional beliefs causing distorted thinking. Dr Raeside’s opinion is the accused’s mental illness had that affect and the accused therefore did not know that what he was doing was wrong.
Dr Begg acknowledged that others in his field of expertise may reach a conclusion different from that he arrived at, finely balanced as it was. He also agreed that Dr Raeside may be better placed, by reason of his involvement with the accused, to form a conclusion about the accused’s mental functioning at the time of the conduct the subject of the charges. Dr Begg was careful to identify the particular reasons why that may be so and the matters he identified were not specifically, at least not in any detail, part of the evidence from Dr Raeside. Nevertheless, in my view, in assessing the opinions of Dr Raeside and Dr Begg the former’s greater experience and his involvement as the accused’s senior treating psychiatrist should be given weight, particularly where Dr Begg’s conclusion was finely balanced.
Dr Tomasic said in cross-examination that if the accused in fact threatened to rape the complainant and proceeded to act as the complainant described then it was more likely that the accused knew the wrongfulness of his conduct. However Dr Tomasic appears to have qualified that view in this exchange (in cross-examination)
(P83)
"QI think with the police interview it was put to him that he in fact used terms such as ‘If you don’t give me what I want I’m going to rape you’, concerning the allegations of 3 June, and yet he continued to talk about the history of events in a way that differed markedly from the alleged victim. Is that consistent with his delusional beliefs affecting whether he knew the conduct was wrong.
AYes.”
The Crown’s submission is that in determining the issue before the court the court should accept the truth and accuracy of the words the complainant states were spoken by the accused namely that he did use the word “rape” in the context she related in the course of the sequence of events as she described them. In my view that is the correct approach where, as here, those expressing an opinion as to the accused’s mental competence at the relevant time have had regard to the complainant’s statement, the accused does not challenge the substantial accuracy of it, and there is nothing to suggest it is inherently improbable or it would be otherwise unsafe to rely upon it.
Dr Raeside included in his review of matters material to his opinion that the accused used the word “rape” which he said was one of the reasons he had reservations whether the accused had no concept the complainant was consenting or not consenting to sexual contact with him. However, that the accused used the word “rape” and that the accused likely understood the complainant was not consenting to sexual contact were factors Dr Raeside took into account in concluding the accused was in a psychotic state and in Dr Raeside’s view “the accused would have seen his behaviour as justified based on his distorted thinking and his paranoid delusional ideas”.
Dr Begg noted that the accused told him he believed the complainant had misinterpreted, as an intention to rape, the accused’s words to the complalinant “If I don’t get it from you I’ll get it from another girlfriend” which Dr Begg said indicated the accused was “able to think about what’s going on during that encounter with (the complainant)”. It was a factor Dr Begg considered in reaching his conclusion as to the mental competence of the accused, but as I understood Dr Begg it was principally the actions of the accused before and after the accused’s conduct toward the complainant in her bedroom upon which he placed greater reliance as the basis for his opinion.
Counsel for the defence emphasised Dr Raeside’s greater opportunity, as the accused’s treating psychiatrist, to have formed a judgment as to the extent of the accused’s illness and therefore be better placed than Dr Begg to express and explain his opinion concerning the mental competence of the accused at the time of the alleged offending. This in conjunction with Dr Raeside’s greater experience in the field of forensic psychiatry and that Dr Raeside had considered each of the matters which Dr Begg identified as the basis for his different conclusion, should bring the court to find that the accused has established mental incompetence on the balance of probabilities. Counsel submitted that the accused’s poor and varying memory of the events on 3^rd June (which the Crown did not suggest was feigned or contrived) was consistent with the accused being so psychotic on that day his actions and words at and proximate to the time of his conduct toward the complainant, even if her version of it is accurate and truthful, cannot be relied upon to show the accused knew that what he was doing was wrong, because the accused’s delusional beliefs in effect robbed the accused of the ability to understand or appreciate that which ordinary people would have known to be wrong. Counsel pointed to the accused’s telephone call, later in the day of the events in the bedroom, to be inconsistent with the accused’s earlier conduct being knowingly wrong, and that the accused entered the Kidman Park house on 18^th July showed not only a further deterioration in the accused’s mental state but was evidence he did not know the wrongfulness of his conduct on 3^rd June.
The Crown’s submission is that Dr Tomasic having said that her opinion as to the accused’s mental competence would be different were the accused to have used the word “rape” and then proceeded to act as the complainant described, the issue resolves into a consideration of and the weight to be given to the respective opinions of Dr Raeside and Dr Begg, having regard to the complainant’s version of the events on 3^rd June and 18^th July because the accused cannot be accepted as an accurate historian. Insofar as the opinions of Dr Tomasic are concerned, it is submitted that at best her conclusions, as expressed in her evidence and were the accused to have used the word “rape”, weigh against the defence of mental incompetence having been established by the accused.
Counsel contended that Dr Begg in relying upon the conduct by the accused which Dr Begg identified as the basis for differing from Dr Raeside’s conclusion, recognised that a person suffering from a mental illness may still know particular conduct is wrong and that Dr Begg’s approach (which counsel described as “linear”) to the issue should be preferred to the holistic approach by Dr Raeside, on the basis that the accused’s conduct tended, as Dr Begg explained his interpretation of it, to evince knowledge of the wrongfulness of his actions.
A difficulty with this submission is that Dr Begg acknowledged the accused’s psychotic state impaired the capacity to lay down memories, or to later relate whatever memories there may have been, of precisely what it was the accused may have delusionally believed at the material time. Dr Raeside, on the other hand, in his consideration of all the same factors used by Dr Begg, was of the opinion that the extent of the accused’s psychotic induced delusional beliefs as he judged them were such that for some reason the accused felt or believed he was justified in what he did, in other words he did not know that what he was doing was wrong.

As I earlier observed Dr Raeside’s contact with the accused over a period of time as the accused’s treating psychiatrist, and his greater experience in the field of forensic psychiatry are important matters to which I should and do have regard in the weight I give to his opinions; this is more particularly so where the conclusion of Dr Begg is, as he said, finely balanced and other psychiatrists may reasonably have a different opinion as to whether the accused knew his conduct was wrongful.
I have come to the view that Dr Raeside’s opinion should be preferred; it had regard not only to his own diagnosis of the nature and extent of the accused’s mental illness and what the accused said at various times about the events the subject of the alleged offences, but also the complainant’s version of those events and her observations about the accused’s behaviour both before 3^rd June, and on that day immediately before the accused’s acts toward her.
I find the accused has established on the balance of probabilities that at the time of the conduct on 3^rd June, the acts of alleged attempted rape and indecent assault, he was suffering from the mental illness chronic schizophrenia and in consequence of that mental illness he did not know the conduct was wrong.
As to the conduct on 18^th July I accept Dr Raeside’s opinion that the accused at that time was suffering from the same mental illness, and because of that mental illness the accused believed he was permitted to enter the house at Kidman Park and therefore he did not know his entry into the house was wrong. I infer from Dr Raeside’s evidence as a whole that the accused, also by reason of his mental illness, believed he had a ongoing personal relationship with the complainant and he did not know it was wrong to touch the complainant in the manner in which it is alleged he did.
I am satisfied on the balance of probabilities that the accused at the time of each of the offences alleged against him was mentally incompetent to commit those offences and I record a finding accordingly.

[2002] SADC 137

25 October 2002