R v Kakavand - [2010] SASC 350

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v KAKAVAND
Criminal Trial by Judge Alone
[2010] SASC 350
Judgment of The Honourable Justice Kelly
21 December 2010
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Accused pleaded not guilty to a charge of causing serious harm with intent to cause serious harm on the basis of mental incompetence to commit the offence - question of mental competence tried first under s 269F of the Criminal Law Consolidation Act 1935 (SA) - victim the accused's wife - accused suffered post-traumatic stress disorder related to imprisonment in Iran - whether the accused was psychotic at the time of the alleged offending - whether the accused had a dissociative flashback before, during or after the alleged offending.
Held - accused mentally competent to commit the offence - not shown on the balance of probabilities that accused was psychotic or in a pathological dissociative state at the time of the alleged offending.
Criminal Law Consolidation Act 1935 (SA) s 23(1), s 269A(1), s 269C, s 269D, s 269WA , referred to.

R v KAKAVAND
[2010] SASC 350
Criminal: Trial by judge alone
KELLY J.
Introduction

The accused Ravanbakhsh Kakavand was originally charged with the crimes of attempted murder and aggravated causing serious harm with intent to cause serious harm. Both charges arise out of an incident which occurred on the morning of 1 December 2009 on River Road near Hahndorf.
On that date a number of civilian witnesses driving along River Road observed the accused striking his wife Elnaz Adalat on the ground with a lump of wood. He was tackled by those witnesses and restrained until police arrived and arrested him.
At his arraignment on 21 June 2010 the accused entered pleas of not guilty and sought an adjournment to seek a psychiatric report on the issue of the accused’s mental competence. On that date the Court ordered under the provisions of s 269WA of the Criminal Law Consolidation Act 1935 (SA) (the Act) that a report as to mental competence be prepared and forwarded to the Court.
After receipt of that report the matter was listed for a trial on the issue of the accused’s mental competence. On 23 November 2010 I made an order that the trial of the accused’s mental competence proceed before the trial on the objective elements of the offence.
On that date the Director of Public Prosecutions entered a nolle prosequi on the charge of attempted murder and the accused again entered a plea of not guilty on the alternative charge of aggravated causing serious harm with intent to cause serious harm contrary to s 23(1) of the Act.
By consent the prosecution tendered a number of declarations relevant to the issue of the accused’s mental competence at the time when the offence was allegedly committed. They were declarations of Darren Andrew McCormack, Michael Rory O’Rourke, Hamilton Scott Walker, Paris Timothy Leslie, Matthew Elliot Argent, Brian Lester Watkins, Jennifer Margaret Dunstan, Malcolm George Williams, and Dr Rumal Jayalath.
In addition to tendering the lump of wood allegedly used by the accused, the prosecution also tendered two videos depicting the arrest of the accused at River Road, Hahndorf on 1 December 2009 and an interview later at the Mount Barker Police Station with Detective Malcolm Williams. Although the quality of those recordings is not particularly good and at times it is difficult to discern what the accused has had to say, I have viewed both of those videos.
Section 269C of the Act sets out the test which governs the question of whether a person is mentally competent at the time an offence is committed. That section states:
269C—Mental competence
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a)     does not know the nature and quality of the conduct; or
(b)     does not know that the conduct is wrong; or
(c)     is unable to control the conduct.
A mental impairment for the purpose of that legal test is also defined in s 269A(1) of the Act:
mental impairment includes—
(a)     a mental illness; or
(b)     an intellectual disability; or
(c)     a disability or impairment of the mind resulting from senility,
but does not include intoxication
Mental illness is also defined in the Act to mean “a pathological infirmity of the mind (including a temporary one of short duration)”.
By virtue of s 269D of the Act there is a presumption that a person is mentally competent to commit an offence unless and until that presumption has been displaced. The onus of disproving that presumption lies with the accused who must establish on the balance of probabilities that he was not mentally competent at the relevant time.
The accused’s submission to this Court is that he was at the relevant time mentally incompetent by virtue of suffering from a mental impairment in consequence of which he did not know that the conduct was wrong. In other words the accused relies on the second limb of the test in s 269C(b) of the Act. The basis for this submission is to be found in the evidence of Dr Christopher Branson, one of two psychiatrists who examined the accused for the purposes of providing the Court a report. Both Dr Branson and Dr Craig Raeside gave evidence at the trial on the issue of the accused’s mental competence. Before dealing with the evidence of the psychiatrists it is helpful to summarise the relevant facts.
The accused was born in Iran and is now 45 years of age. He completed his education at Tehran University and obtained a degree in chemical science in 1991. He was studying for his master’s degree in organic chemistry when he was arrested by the police for political reasons in 1993. Thereafter he was detained in prison for nearly six years including 17 months in solitary confinement and two months in a dungeon. During that time he was subjected to psychical abuse and was tortured in many ways including being hanged and having bones broken. Later he was informed that he was sentenced to death.
After about 21 months the death sentence was commuted and after three unsuccessful attempts to escape the accused finally managed to escape from Iran to Turkey from which he came to Australia as a refugee. He was married to the alleged victim in this matter, Ms Elnaz Adalat by proxy in Iran as he could not attend.
Since arriving in Australia on 1 March 2001 the accused obtained employment through various contacts in the Iranian community working as a salesman of Persian rugs, studying English and then studying law for a time at Flinders University. He then had a period where he obtained a taxi licence and worked in the taxi industry for three years until he was assaulted by somebody with a sword. Because of the psychological stress associated with that assault, he sold his taxi. At that time he commenced to see a psychologist on a regular basis.
Later, he began to work in the building industry and obtained a number of licences including a general builder’s licence, a painting licence and a renovations licence. He was married to his wife in 2005 and she arrived in Australia in 2006. The accused and his wife have a son who is now three and a half years old.
In 2009 the accused was subjected to a number of financial pressures. He lost a contract involving quite a large sum of money and became indebted to the extent that the mortgagee of property owned by him was threatening to sell the property and another creditor was threatening to bankrupt him. In the lead up to 1 December 2009 he lost another contract after a dispute with his employer concerning an issue of asbestos removal and whose responsibility it was. He then undertook to obtain a bus driver’s licence and commenced a four week course which began at 5.30 am and finished at about 3 pm in order to obtain a bus driver’s licence so he could obtain employment as a bus driver.
Things came to a head on 1 December 2009. On that day the accused and his wife left the family home in circumstances that are disputed by the accused and drove to the hills. It was during the course of that trip that the ute being driven by the accused ran off the road and a few minutes later passersby observed him beating his wife with a lump of wood.
The evidence of the civilian observers is important.
Darren McCormack first observed the accused’s ute on the verge of a ditch on River Road with both the driver’s door and the rear driver’s side door fully open. There did not appear to be any serious damage to the vehicle but he saw the accused hunched over on the ground at the rear of the vehicle. He then saw the accused raise both arms over his head while holding a block of wood about three feet long and strike a female who was lying on the ground. He heard her screaming as if she was in severe pain. He saw the accused strike the woman on the head about eight times. He immediately got out of his car and yelled out things like “no, no, stop, stop”.
Two other men came to his assistance. One of them was Michael O’Rourke who first observed the accused standing behind the ute in a wood chopping stance. He appeared to be chopping something on the ground but Mr O’Rourke said he was moving his arms much faster than a person would chop wood. When he got closer he saw the accused stop chopping and kneel down on the side of the road. He knelt very low with his hands in front of him.
As he passed the accused Mr O’Rourke saw blood and then he could see a person lying on the ground with blood all over the hair and face. The next thing he heard was one of the other civilian witnesses saying “stop”. He got out of his car and as he walked back towards the accused he saw that he was holding a lump of wood standing in a cricket stance looking directly at Mr O’Rourke. The accused then turned towards the female who was still lying on the ground and raised the wood over his head before hitting it down in the direction of the female. Mr O’Rourke heard a sickening sound and what he thought was the impact with a wet piece of flesh. With the help of Mr McCormack, he then threw himself at the male and brought him to the ground.
The third civilian who came to the assistance of the victim that morning was Hamilton Walker. As soon as he realised that the accused was hitting a human being on the ground he stopped and assisted the other two civilian witnesses O’Rourke and McCormack to restrain the man. His description of the accused when he got out of his car was that “he was in a rage and seemed to have tunnel vision on killing whoever was on the ground”.
A striking feature in common between the evidence of all three civilian witnesses, Mr McCormack, Mr O’Rourke and Mr Walker, was that in their dealings with the accused he said nothing apart from asking them not to put so much pressure on his left arm when they were holding him down.
Mr McCormack said that even though the accused resisted the three men by thrashing his body about in an effort to get free from their hold, he said nothing to them at any stage.
The victim Ms Adalat was admitted to the Royal Adelaide Hospital and remained there in the neurosurgery unit until 11 December 2009. She sustained multiple superficial lacerations to her body which required surgical repair. These included lacerations to her face, arms, wrist and hands. She had an undisplaced fracture of the occipital bone and soft tissue bruising to the abdomen. She was observed at the hospital to be suffering from anxiety and nightmares suggestive of a post-traumatic stress reaction.
The prosecution did not tender a statement from Ms Adalat nor was she called by the prosecution to give evidence. I therefore do not have the benefit of having any version of the events leading up to the incident from any person other than the accused. This has not been without complication as both psychiatrists, Dr Raeside and Dr Branson, in their initial and subsequent assessment of the accused considered the contents of Ms Adalat’s original statement to the police which contains a version of what occurred somewhat at odds with the version given by the accused to the police and in court. Nevertheless, for the purposes of determining this issue I have not had regard to anything said by Ms Adalat either to the police or to others about this matter.
Evidence of Dr Branson
Dr Christopher Branson initially provided a report in this matter at the request of the Court on 12 August 2010.
In that report Dr Branson was necessarily equivocal in light of the inconsistencies which he perceived between the history given to him by Mr Kakavand and the history of the interaction with his wife as recounted by his wife in her statement. At that stage Dr Branson expressed himself in the following way:
In order to resolve this matter, I believe that it may be that further clarification of the objective facts, as determined by the Court, will be required. In particular, Ms. Adalat’s current attitude to her statement of 10/12/09, and the reasons for any variations from it, would be useful to know. Information from Mr. Kakavand’s treating doctors at Modbury Hospital may contribute to a better understanding of the symptoms he was experiencing both before, during and after the offences.
By the time Dr Branson gave evidence on 24 November 2010 he had the opportunity to view all of the information available from the Modbury Hospital records about Mr Kakavand’s treatment there after admission in April 2010. It was also plainly obvious by 24 November 2010 that Ms Adalat would not be called as a prosecution witness and that her statement would not be presented to the Court.
Dr Branson formed the view that at the relevant time Mr Kakavand was experiencing a psychotic episode during which he was unable to reason with a moderate degree of sense and composure. Dr Branson’s opinion was formed on the basis of the account which Mr Kakavand gave of his thinking and behaviour at the time of the offence, the account which Mr Kakavand gave of his mental state leading up to the offence, and what Dr Branson described as “the apparently psychotic symptoms of visual and possibly auditory hallucinations” experienced by Mr Kakavand. Dr Branson’s ultimate conclusion is that the accused at the relevant time and leading up to the offence was suffering from a major depressive disorder with accompanying psychotic features.
Dr Branson’s conclusion that Mr Kakavand was suffering from psychotic symptoms such as visual and auditory hallucinations prior to the date of the offence seems to have been based on what he described as the corroboration for those symptoms found in the notes of the Modbury Hospital. In his assessment of the accused on 20 July 2010, Mr Kakavand reported to him that in the period of three or four weeks prior to the offence he had started to see shadows in the backyard and hear rustling noises which he began to think were hostile to him and might even be spying on him. At that time he told Dr Branson that he experienced these phenomena whenever he was alone but he told no one about it as he was very embarrassed. Dr Branson placed some emphasis on the fact that similar symptoms were reported to the staff at the Modbury Hospital in April 2010.
Thus it can be seen that Dr Branson’s opinion about the mental competence of the accused at the time of the offending appears to be principally based on Mr Kakavand’s own account to him supported, at least in Dr Branson’s opinion, by what Mr Kakavand told various doctors and psychiatrists at the Modbury Hospital during his admission there in April 2010.
Dr Branson was specifically questioned whether the behaviour of Mr Kakavand, as described by Mr O’Rourke at the side of the road on the day of the offence, was consistent with the scenario which Mr Kakavand had put to Dr Branson of a man suffering the delusion that the Iranian secret police were trying to arrest him, flailing about trying to ward them off himself or his wife. Dr Branson acknowledged that this was a very difficult question to answer particularly in light of the fact that he was not able to get any clear picture of the realities of the situation from speaking with Mr Kakavand. Even after reading the evidence of the accused at the hearing Dr Branson was still unable to obtain a clear picture of the sequence of events at the roadside. Dr Branson agreed that the description given by Mr O’Rourke of Mr Kakavand’s behaviour at the side of the road was equally consistent with the scenario of either a man having a psychotic episode or a man who was simply enraged and assaulting a person he had just been arguing with.
From his observations of the video of the accused at the arrest scene he believed that the dissociative stage of the accused’s behaviour had come to an end by the time the police arrived at the road side.
Dr Branson conceded that if the symptoms which Mr Kakavand reported experiencing prior to the assault were not in fact experienced by him, that is, Mr Kakavand’s account of that was not accurate, then the basis for his conclusion that Mr Kakavand was psychotic at the relevant time would be considerably weakened. The following exchange took place between counsel for the prosecution and Dr Branson:
QAbsent of those symptoms, assuming he wasn’t suffering from those symptoms at the time of this event, is it likely that there may have been some sudden onset of a psychotic episode during the course of that drive.
AIt is still possible. Particularly in the situation of people with serious post-traumatic stress disorders, brief psychotic reactions can occur, usually triggered by some other form of trauma or upset. But one would have to say that’s a lot more rare than the sort of situation I believe applies to this case.
QIs there a possibility that the dissociative state in this case may have occurred at the time that this man was grabbed by other people and taken to the ground; that that sort of event might trigger a dissociative state.
AYes, that’s possible.
QThat might explain his confusion about the whereabouts of his wife during the police interview, mightn’t it.
AIt might but the assault was occurring by the time he was tackled by bystanders. So if there was nothing abnormal about his mental state until the point he was tackled by the bystanders, then one would expect him to have a memory of what had happened.
QSo can I just ask you this: one has to accept the account of his symptomatology leading up to the motor vehicle accident, frankly, on the face of what he says.
AWell yes, as one always does with psychiatric examination unless there are other sources of corroboration.
QAnd, in this case, there is some comfort in your assessment by the symptomatology he gave when admitted to the Modbury Hospital in April 2010.
AYes, I think that’s a good way of putting it.
Evidence of Dr Raeside
Dr Craig Raeside, a forensic psychiatrist who has been practising in the field of both private and forensic psychiatry since 1993 was also called on behalf of the accused.
Dr Raeside first saw the accused on 8 December 2009. He observed the accused on the video which was taken by the police both at the road side and during the interview later with the police. He concluded that the accused’s presentation at the road side immediately after the event was consistent with the accused having been in a dissociative state.

Dr Raeside adopted a conservative approach to his assessment of the accused’s condition at the time of the assault upon his wife. He expressed a firm view that the accused suffers from a severe post‑traumatic stress disorder with ongoing severe symptoms over many years as a result of his experiences in the Iranian prison. However Dr Raeside saw no evidence of any history of psychosis prior to the accused’s admission to the Modbury Hospital in April 2010. Dr Raeside noted that at least one of the psychiatrists who examined the accused at the Modbury Hospital after his admission, Dr Cherrie Galletly, also appeared to hold the same view.
Dr Raeside’s conclusion was that the accused suffered dissociative symptoms including flashbacks that he was being followed by the Iranian police. There is however no objective evidence that the accused was experiencing any psychotic symptoms prior to the offence on 1 December 2009.
In Dr Raeside’s opinion the critical issue really was the timing of the commencement of the flashback. If the flashback commenced prior to the assault on his wife, then in Dr Raeside’s opinion that would support a conclusion that the accused was mentally incompetent at the time of the offence. However if the dissociative flashback occurred at some stage after he commenced assaulting his wife, in Dr Raeside’s opinion that would not give rise to a finding that the accused was mentally incompetent at the time.
If the accused’s dissociative flashback had occurred prior to the assault on his wife, Dr Raeside was of the view that the most likely cause of the accused’s dissociative flashback would be a strong emotion he must have experienced in the car while he was travelling along with his wife.
However, Dr Raeside’s ultimate conclusion was that the most likely explanation for the accused’s dissociative state was that the accused, in a state of intense emotion, assaulted his wife. Further, the actions of the three civilian witnesses who launched themselves at the accused and brought him to the ground was most likely to have triggered the flashback.
As Dr Raeside pointed out that explanation does sit more comfortably with the evidence of what the civilian witnesses saw and heard the accused doing during the time he was assaulting his wife. If for example the accused did believe he was being followed by the Iranian police and set upon by them, it is surprising that he did not say anything to any of the witnesses other than “don’t hurt me”. This is particularly so in light of the fact that the accused himself claimed to have remonstrated with the police protesting his wife’s innocence when no one heard anything like that uttered by the accused during the whole time that he was observed by the road side. Furthermore he claimed to have been defending his wife from the Iranian police even though it was his wife who he immediately set upon. Thus Dr Raeside concluded, even accepting the accused’s account, it is less likely that the accused went into a dissociative state prior to the car running off the road for which there has been no apparent explanation than at some stage subsequently, for which there are a number of explanations.
Dr Raeside made the obvious point that not all dissociative states are pathological and that intense anger for example, can produce a dissociative state which might lead to the kind of behaviour observed in the accused on 1 December 2009. Dr Raeside was cross‑examined about the causes of dissociation and said:
A.…In Mr Kakavand’s case it’s quite consistent that he doesn’t have an accurate recollection. He may have and he is not choosing to share it, but I think his description seems genuine in that regard. However, as I have said, there are the inconsistencies in the behaviour itself that a more likely scenario would be he crashed, came off the road, became angry, witnesses came by and then he assaulted them instead. He had some sort of dissociated state rather than the scenario that appears to have occurred in this state. Unless perhaps he was already angry and then blamed his wife for the car going off the road and then lost it even more and his dissociation proceeded to that point. I would say if that was a dissociation due to anger, notwithstanding his [vulnerabilities], I would not consider that to be a mental impairment in the narrow sense as far as the offence is concerned. Rather, the issue [is] was he in a dissociative state that caused the offence to occur. There is a narrow line between that. Again, the key information that would help would be his wife’s account of what occurred. It may not be accurate, but that would be the type of information, a first-hand account of his demeanour leading up to that.
QAre there a number of alternatives, that he may have dissociated before he commenced an assault upon his wife and thereby the assault was committed in a dissociated state; is that one of the possibilities.
AYes, I would divide that into two though. One would be whether the dissociation was part of a post-traumatic flashback, this is before the assault began. Or secondly, as he became increasingly angry for whatever reason, he then dissociated in his anger.
QEven before the assault commenced there is a possibility that the dissociation was not due to post-traumatic stress disorder but simply due to anger.
AYes, but he is clearly someone who has got significant vulnerabilities and a propensity to disassociate and it is then drawing a very fine line between was it the mental impairment that was causing the dissociation that caused the assault. In my own view, I would think there is a distinction between whether it’s a post-traumatic flashback or whether it is dissociation related to anger. The reason I say that is not just in this particular instance. Again, the courts see many people who have vulnerable personalities with a tendency to dissociate and then lose it and aggressively attack someone. I would be reluctant to put them all in the same box as having a mental impairment, at least for a mental incompetence defence.
Thus it can be seen that Dr Raeside drew a distinction between a dissociative state caused by post‑traumatic stress syndrome and a dissociation caused by anger or some other emotion. Dr Raeside acknowledged that in the case of someone who has significant vulnerabilities and a propensity to dissociate, such as the accused, it may be difficult to draw that very fine line between the mental impairment which caused the dissociation or anger or some other strong emotion which caused the dissociation.
One of the difficulties in identifying the specific cause of the accused’s behaviour that morning is the fact that there is not, as Dr Branson noted, any really intelligible clear evidence before the Court as to actually what did happen.
The accused did give an account to the police and to the psychiatrists who examined him. However as both psychiatrists noted, it is difficult to get any clear picture of the realities of the situation from the accused’s account as to what happened. In his evidence to this Court, the position was much the same.
The accused continued to repeat over and over again the same things. At times his answers were non‑responsive. In addition to that there are some important differences between the things which the accused told the police and the psychiatrists and what he said in court.
For example the accused denied in court that his wife’s request to assist a member of her family was an issue, although he did concede that his wife had tried to persuade him to go to a lawyer to sign some papers for sponsorship for her sister a few days before 1 December 2009. He said to Dr Branson that he had left his home on the morning of 1 December 2009 at about 8.30 am to talk to an engineer however his wife insisted on coming with him because she wanted him to see a lawyer concerning her sister’s application to come to Australia. In court whilst the accused did not entirely resile from the statement that he had some argument with his wife, he insisted that it was an argument about whether she would come with him that morning because she had been complaining to him that they did not spend enough time together. A number of aspects of the accused’s evidence about the trip to the hills does not make much sense in terms of his own expressed desire on that day to do a number of other jobs that he needed to get done.
As for what happened on the actual journey the accused told Dr Branson that he wanted to be in the hills as it was a pleasant and relaxing area. At some stage his wife told him he was driving too fast and she started screaming. He started to believe then he was being followed and that the people following him wanted to take his wife away. He recalled his car running off the road and then being surrounded by secret police.
In court the accused said he was not sure what the sequence of events was, whether he heard his wife screaming before or after he started to drive the car very fast. However he did say that he was remonstrating and shouting with the secret police saying with reference to his wife words to the effect of “she is innocent”, “she has not done anything with politics”, “just leave her alone” and so on. That evidence does not accord with the observations of any of the civilian witnesses at the scene.
In court the accused denied repeatedly that there had been any argument with his wife immediately prior to the car running off the road. He appeared to be unwilling to concede that there was any friction or difficulty with his wife that morning other than her desire to spend more time with him.
The accused is obviously a highly intelligent man. Prior to his arrival in Australia he achieved impressive qualifications from the Tehran University in Iran. I accept that since arriving in Australia he has suffered from a severe post‑traumatic stress syndrome. In addition, having to study all over again to obtain qualifications to work in this country only to lose important contracts for reasons which he perceived as unfair, would have caused a great deal of extra stress to the accused. It is an unfortunate concatenation of circumstances which led to this highly educated and highly qualified man finding himself under a great deal of financial pressure. Although the accused to some extent tried to minimise the financial pressure he was under at that time, the evidence points to the contrary position. The evidence is undisputed that he was having difficulty paying the mortgage and that he had just lost some important contracts. All of these matters must have been playing on his mind on 1 December 2009.
Nevertheless I do have some reservations about the veracity of some aspects of the accused’s account in this Court about the events which led to the car running off the road on 1 December 2009. Overall I gained the impression that the accused was well aware that a concession that there had been an argument or any friction between himself and his wife in the few moments leading up to the incident would not necessarily assist his cause. The accused admitted in evidence that he told Dr Raeside during Dr Raeside’s first consultation in the infirmary only certain things and withheld other information. His explanation for doing that was that he simply wanted to get out of the infirmary. For these reasons I cannot wholly accept everything the accused has said about the events of 1 December 2009.
I do accept that the accused does not have a good memory as to the precise sequence of events that happened after the assault commenced upon his wife. However this is not necessarily inconsistent with the accused having suffered an episode of dissociation caused directly by intense anger during an argument with his wife. The critical issue for this Court is to determine at what stage the dissociative state began and what led to it.
There is no evidence of the accused ever having suffered from any psychotic symptoms prior to his admission to the Modbury Hospital in April 2010. The evidence of the symptoms he reported has come only from the accused’s account. There has been no evidence that he has ever displayed such symptoms. Against that background I have considered whether the accused’s behaviour at the scene was caused by the accused being in a psychotic state, or whether the accused was in a state of dissociation caused by having a flashback arising out of his post‑traumatic stress syndrome, or whether the accused was in a dissociated state caused by an episode of intense anger after an argument with his wife.
While I have been greatly assisted by the opinions of Dr Raeside and Dr Branson, I acknowledge, as they did, evidence of the facts which occurred on 1 December 2009 is sparse to say the least.
Even accepting that the accused at some stage did lapse into a dissociative state I do not consider it possible to make any finding about the precise moment when that dissociative state commenced. Like Dr Raeside, and for very similar reasons, I consider it to be far more likely that the accused’s apparent dissociation was caused by an intense argument with his wife in the car in the few moments immediately preceding it running off the road. In that sense I consider it far more likely that the assault upon his wife commenced while the accused was in a state of intense anger, and not at that stage, in the course of a dissociative flashback. I regard it as particularly significant that even in terms of his own belief at that time, namely that he was trying to defend his wife from the Iranian secret police, it was his wife who he was setting upon and he said nothing to anyone at the scene or to the police about that.
In these circumstances it must follow that the accused has not discharged the onus upon him to displace the presumption of mental competence. I therefore find that the accused was mentally competent to commit the offence.