R v Kenneth John Wipa No. DCCRM-97-409 Judgment No. D3802

[1998] SADC 3993

R v KENNETH JOHN WIPA

CRIMINAL
JUDGE KITCHEN

The accused is charged with three counts in the same information that on 4th March 1997 at Morphett Vale:-

1...... he assaulted Mark Jason Elliott thereby occasioning him actual bodily harm.

2...... he unlawfully and maliciously wounded David John Elliott with intent to do him grievous bodily harm.

3...... he assaulted Mark Jason Elliott.

He was arraigned on 10th June 1997 and pleaded not guilty to all counts.

.................. The accused’s trial was set for 18th November 1997 but it was vacated at the accused’s request so that his counsel could obtain further instruction in relation to an issue raised by the accused as to the mental competence of the accused to commit the offences alleged against him.  That issue was set for trial on 28th January 1998.  It came before me on that date.

.................. The accused’s counsel intimated that were the Court, after investigation pursuant to s269F of the Criminal Law Consolidation Act (“the Act”), to be satisfied that the accused at the time of the alleged offences was mentally incompetent to commit the offences, the facts to establish the objective element of each of the offences would be admitted pursuant to the Evidence Act.

.................. The accused elected to have the investigation, as to his mental competence to commit the offences charged, dealt with by a judge sitting alone.  I determined to try first the question of his mental competence (s269F).

.................. Section 269D of the Act provides that “A persons competence to commit an offence is to be presumed unless the person is found, on investigation under this Division, to have been mentally incompetent to commit the offence”. By s269F:-

“A.    (1)    The court -

(a).... must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental competence to commit the offence; and

(b)may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.

(2)... The power to require an examination and report under subsection (1)(b) may be exercised

(a).... on the application of the prosecution or the defence; or

(b)if the judge considers the examination and report necessary to prevent a possible miscarriage of justice-on the judge's own initiative.

(3)... If the court is not satisfied on the balance of probabilities that the defendant was at the time of the alleged offence mentally incompetent to commit the offence, the court must proceed with the trial of the offence in the normal way.

(4)... If the court is satisfied on the balance of probabilities that the defendant was at the time of the alleged offence mentally in competent to commit the offence, the court must record a finding that the defendant was mentally incompetent to commit the offence.”

........................... A question arose as to upon whom the onus lies to satisfy the Court on the balance of probabilities that the accused was at the time of the alleged offences mentally incompetent to commit the offences.

........................... Section 269C of the Act provides:-

“269C.. 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.”

The issue in the investigation concerning this accused is not whether at the time of the conduct complained of in the charged offences he did not know the nature and quality of the conduct or was unable to control the conduct, for as will appear later Dr Raeside’s opinion is that although the accused was suffering from a mental impairment, chronic paranoid schizophrenia, the impairment did not result in the accused not knowing the nature and quality of the conduct or being unable to control the conduct.  The issue is whether, as Dr Raeside opined, in consequence of the mental impairment the accused did not know that the conduct was wrong.

At common law it is for the accused to make out positively upon a balance of probability that he was not criminally responsible for the acts which constitute the crime charged against him, that he was not of such a mental condition at that time as to be criminally responsible and it is for the accused to displace the presumption that every person is presumed to be of sufficient soundness of mind to be criminally responsible for his actions.  R v Porter (1936) 55 CLR 181.

In Porter’s case Dixon J, as he then was, charged the jury upon the question of insanity in the criminal law.  After introducing the issue of whether an accused had a disease or disorder or disturbance of the mind of such a character that he was unable to appreciate that the act that he was doing was wrong he went on (pages 189/190):-

“Then I have used the expression “know”, “knew that what he was doing was wrong.”  We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual.  We are not dealing with right or wrong in the abstract.  The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time.  Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong?  If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.  What is meant by “wrong”?  What is meant by wrong is wrong having regard to the everyday standards of reasonable people.  If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged.  In considering these matters from the point of view of fact you must be guided by his outward actions to a very large extent.  The only other matter which can help you really is the medical opinion.  I think the evidence may be described as his outward conduct and the medical opinion.  It is upon this you must act.  The medical opinion included explanations of the course of mental condition in human beings generally.”

The question then is whether the Court is satisfied on the balance of probabilities that at the time of the conduct on which the information is framed, the accused was suffering from a pathological infirmity of the mind and could not reason about the matter with a moderate degree of sense and composure such that he could not know that what he was doing was wrong, that is wrong having regard to the everyday standards of reasonable people.

It follows from Porter (the direction in which was approved in Stapleton v R (1952) 86 CLR 358) that at common law the onus is on an accused to show on the balance of probabilities that the accused, through a disordered condition of the mind, did not know at the relevant time that what he was doing was wrong.

In Question of Law Reserved (No. 1 of 1997) (CCA Judgment No. S6444 delivered 18th December 1997 unreported) Duggan J, with whose reasons Matheson and Nyland JJ agreed, examined the procedures established in part 8A of the Act concerning mental competence to commit offences, for the purpose of answering questions of law referred to the Full Court. In the course of his reasons Duggan J wrote (at page 9):-

“The interpretation of the relevant provisions in the Act cannot be divorced entirely from the common law as it had developed up until the passing of the Act. The test for mental incompetence draws heavily on common law concepts and expressions, and although the procedures introduced by the legislation represent a marked departure from that which was in existence before the Act was passed, the previous law is of some assistance in determining the legislative intention in introducing some of the new procedures.”

By s269E of the Act the question of a defendant’s mental competence to commit an offence is to be investigated if the defendant raises a defence of mental incompetence or the Court decides, on the application of the prosecution or on its own initiative, that the defendant’s competence to commit the offence “should be investigated in the interests of the proper administration of justice”. By whichever of those means an investigation is undertaken the standard of proof is on the balance of probabilities.

The DPP submits that where the defence raises the issue of mental competence, the onus is upon the accused to prove on the balance of probabilities that the accused was mentally incompetent to commit the offences charged and, as I understand, even where the Court on the application of the prosecution or on its own initiative decides to conduct an investigation, still the onus is upon the accused because by s269D mental competence to commit an offence is to be presumed unless on investigation the person is found to have been mentally incompetent to commit the offence.

At common law, insanity being a matter of defence, the onus of establishing it lies upon the accused.  R v Oliver Smith 6 Criminal Appeal Reports 19, and if there is evidence that the accused suffered from a mental disease when the incriminating act was done the judge must direct the jury on the issue if there is evidence supporting a finding of insanity.  Hawkins v R (1994) 179 CLR 500.

Does the fact that the Court may decide, at the request of the prosecution or on its own initiative, to conduct an investigation into an accused’s mental competence mean that no onus lies on the accused, or on the prosecution, the result of the investigation being determined simply on the question whether or not the Court is satisfied on the evidence brought before it and the representations made to it that the accused was mentally incompetent to commit the offence? Some support for that interpretation is found in s269F.A(5) which provides that if the prosecution and the defence agree the Court may dispense with or terminate an investigation and record a finding that the accused was mentally incompetent to commit the offence.

It might appear to be a strange and unusual construction of the statute to place upon an accused an onus to prove mental incompetence in a case where the investigation of that matter was not initiated by the accused but by the Court either on the application of the prosecution or on its own initiative. The use of the word “investigation” in s269E instead of the more usual concept of “issue” suggests that what is contemplated is not adversarial. However, s269B in providing that the investigation is to be conducted before a jury unless the accused has elected to have it dealt with by a judge sitting alone goes on:-

“(2).. The same jury may deal with issues arising under this Part about a defendant's mental competence to commit an offence, or fitness to stand trial, and the issues on which the defendant is to be tried, unless the trial judge thinks there are special reasons to have separate juries.”

(emphasis added)

which implies that there are issues joined where the question of the defendant’s mental competence or fitness to stand trial arises. See also s269F which speaks of the trial of the defendant’s mental competence to commit the offence.

..................................... In the second reading speech to the Bill which resulted in Part 8A as it now appears, the Honourable the Attorney‑General said that the Bill had been drafted to take up the recommendations in the report of the Criminal Law Committee to the Standing Committee of Attorney’s-General produced in December 1992. On the question of the burden of proof the committee proposed that the defence have an evidential burden only, but that it be a legal burden if (inter alia) the Act providing the defence “expressly creates a presumption that the matter exists unless the contrary is proved”. Section 269D of the Act clearly provides such a presumption.

..................................... By way of contrast:-

(a).... the Mental Health (Criminal Procedure) Act 1990 (NSW), which provides (by s10) that where a person’s unfitness to be tried for an offence is raised the Court must conduct an inquiry to determine the question on the balance of probabilities, also provides (by s12) that the inquiry is not to be conducted in an adversary manner and the onus of proof does not rest on any particular party to the proceedings in respect of the offence;

(b).... the Criminal Code Act  1995 (Commonwealth) by s7.3 negates criminal liability for an offence if at the time of carrying out the conduct constituting the offence the person was suffering from a mental impairment, but by ss7.3(3) a person is presumed not to have been suffering from such a mental impairment and the presumption is only displaced “if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment”.

.................. Section 269F of the Act is silent as to upon whom the onus lies to prove mental impairment. The vacillation in the characterisation of the procedure to determine the question of mental competence under Part 8A as “an investigation”, “an issue” or “a trial” leaves it unclear whether an onus lies on any party and if so whether it is an evidential onus or an ultimate onus (legal burden). However, on reflection, where as here the accused raises the question of his mental competence, I have come to the view that the DPP was correct in submitting that the onus is on the accused to prove on the balance of probabilities that he was not mentally competent (within the meaning of those words as defined in the Act) at the time of the conduct alleged to give rise to the offence. It is not necessary for me to decide upon whom the onus would lie were the Court to decide, on the application of the prosecution or on its own initiative, that the defendant’s competence should be investigated.

.................. The Crown called Mark Elliott and David Elliott, the persons named in the particulars of the offences charged against the accused, and with the consent of the accused’s counsel tendered the declarations of the persons named in pp 2 and 3 of the transcript on the basis that the contents of each of those declarations would have been the evidence of the deponents if called, none of whom the defence wished to cross-examination.

.................. The defence called Samantha Leiticia Homekei Daniels, who has lived with the accused from time to time during the past 14 years and who has borne seven children by him.  The defence also called Dr CWJ Raeside, a psychiatrist.

.................. The Crown’s case against the accused, on the evidence of David Elliott and Mark Elliott, is that between about 6am and 7am on 4th March 1997, the accused kicked open the front door of the unit in Elsie Street, Morphett Vale in which David Elliott resided with his son Mark Elliott, his daughter Christine Elliott and Christine’s three month old child, assaulted Mark Elliott in the loungeroom by punching him to the head and kicking him in the ribs, stabbed David Elliott in the chest and in the buttocks with a knife when David Elliott came into the loungeroom from his bedroom, and then pulled down Mark Elliott’s trousers and slashed with the knife within two centimetres of Mark Elliott’s penis.  The accused then left accompanied by Samantha Daniels who had gone with him to the unit and had been present throughout the accused’s attack upon the two men.

.................. The evidence of Mark Elliott is that while he was being attacked by the accused the accused was saying that he (Mark Elliott) and his father David Elliott had “had sex with his wife”.

.................. Mark Elliott said that he had been introduced to the accused by Samantha Daniels when he and his father visited her about two or three weeks before the day of the alleged attack.  Samantha Daniels lived in the unit next door to that occupied by the Elliott family.  Mark Elliott related that on the occasion of that introduction the accused in an angry manner said to him and his father words to the effect “Do you know if anyone has been fucking my missus”, to which he replied he did not.  Mark Elliott said the accused asked the same question again “a couple of times” on the occasions Mark Elliott and the accused met after the day of the introduction.  Mark Elliott’s evidence is that he had not had sexual relations with Samantha Daniels and neither had he offered heroin to her or spoken to her about heroin although he and his father had smoked marijuana with her both before and after the day he was introduced to the accused.

.................. The evidence of David Elliott is that he had become acquainted with the accused and Samantha Daniels in Sydney some years ago.  He said he did not recognise Samantha Daniels when she moved into the unit next to his in Elsie Street but he recognised the accused on an occasion he and his son, Mark, visited her and the accused was there.  He said that in the course of that visit the accused in a “pretty violent, well, vile” mood asked “Whether anyone’s been playing around with Samantha”, to which he replied “No”, and the accused said “He’d kill anyone that was”.

.................. David Elliott denied he had had sex with Samantha Daniels and denied he had offered to supply heroin to her; he said he had asked her on one occasion to obtain heroin for him, but none was obtained.  He said he and his son had smoked marijuana with Samantha Daniels and the accused.

.................. David Elliott related that:-

“About 6 o’clock in the morning, Sam, I think it was, come to the window, woke me up asking if I had cigarettes, I said no and about half an hour later he kicked the front door in, had my son in the corner trying to cut his penis off.  I’ve come out the bedroom, he stabbed me three times.

Q...... Where did he stab you.

A...... In the chest, twice in the bum.

Q...... Did he say why.

A...... Well, no - he was going off at my son, something about ‘Pull your pants down, I want your penis’, my son got about a hundred holes in the quilt where he was trying to stab him.”

Detective Stephen Harding at 8.15 am on 4th March 1997 told the accused he was being arrested for unlawful wounding, and cautioned him.  The accused said “Yes.  I did it.  They pilled out my woman and they fucked her.  What would you have done”.  Told he did not have to say anything, he then said “I did it.  When she told me what they did I just lost it ... Will I go to gaol”.

Samantha Daniels evidence is that in 1997 she and the accused lived at Ferryden Park and several times (she said ten times) the accused asserted to her that she was sleeping with other men.  Some indication of her perception of her life with the accused at Ferryden Park is described in these passages of her evidence:- (pp 23-25)

“A.... Ken got psychotic and he used to lock me and my children in the house.  He’d get the couch and put it by the lounge door so I can’t get out, and he had machetes, and the only way I could get out the house was jump through the window and when I jumped through the window he jumped after me, so I couldn’t get away.

Q...... Has he ever indicated to you why it is that he’s locking you in the house.

ABecause he loves me so much, and he just doesn’t want me to go to anybody else, he just wants me all to himself, don’t you honey.  I love you.

Q...... Was there any other incidents at Ferryden Park, or any incidents at all at Ferryden park where Mr Wipa became violent towards you.

AYes, he had the Armed Offenders Squad round, there was hundreds of cars around the place coming around to check to see if me and my children were okay.

Q...... Why did the armed defence squad come around.

AWell, he was accusing of me going with a bloke called Carl and he used to come around all the time and sometimes when Ken wasn’t home this bloke would come around, but I never let him in the house, and Ken accused me of sleeping with this bloke on several occasions and even got me son, he asked my son questions, and my son is only ten.

Q...... What is your son’s name.

ATarni.

Q...... Had you, in fact, been having sex with this man Carl.

ANo, I didn’t.

Q...... On any of the occasions where Mr Wipa has accused you of sleeping with other men, have those allegations been true on any occasion.

ANo.

Q...... Can you think of any other specific example where he has accused you of sleeping with other men.

AYes, when I was - when we were living at Rosewater he accused me of sleeping with a mate that was living with us, and I wasn’t doing that.

Q...... Who was the mate that was living with you.

ALawrence.

Q...... Why was Lawrence living with you.

AHe came with us from Sydney and he just come down as like a mate for Ken, and then he lived with us and stayed with us for about three or four years.

Q...... Was he living with you in Sydney, or just when you came to Adelaide.

AIn Sydney and in Adelaide as well.

Q...... How long had Lawrie been living with you prior to Mr Wipa making these allegations.

AAbout three years.

Q...... Was there anything that prompted Mr Wipa to make these allegations that you know of.

A...... I don’t know. I think it’s all in his mind, if you know what I mean.  He’s been sick for a long time, and I have been looking after him.  But, you know, off and on he’s been getting himself into trouble, caused through alcohol and stuff as well.

Q...... Just getting back to this incident at Ferryden Park:  Was there any incident that you are aware of that triggered that.  By way of example, did Carl come around, or did someone say to Mr Wipa something about Carl, is there anything that you know of that triggered it.

A...... I don’t know.  He could have heard it from elsewhere, but to myself he accused me, and then he asked my son and then I got bashed because he thought I told lies, and then I ran away a week later.

Q...... What were the lies that he thought you had told.

A...... That I slept with someone.  He thought that I had slept with Carl.

Q...... And, what, you had said that you hadn’t.

A...... Yes, and then a week later we were going down the shops, and I got my chance to run away, and I ran to the refuge and he couldn’t come and get me because the cops were there, the cops came and they took me and my five children to a refuge at Calvary in Noarlunga, and I stayed there.

Q...... This refuge at Noarlunga, is that the same refuge at Noarlunga where the assault upon you took place.

A...... Yes.”

Daniels evidence is that after she went to live in the unit next to the Elliott’s unit, David Elliott offered to supply heroin to her.  She said the accused was not present when that occurred and she did not tell him of it until after the accused was arrested for the offences now before the Court.  She said that about a week after she moved to live in the Elsie Street unit she told the accused where she was; he visited her and there was an occasion when David and Mark Elliott came to her unit and all of them, including the accused, smoked “dope”.  She said there was no discussion about her on that occasion.  She said she had not had sex with either of the Elliott men or told the accused or anyone else that she had; “Ken just presumed that because I was living there and there was men there and there was only supposed to be women living there”.

Daniels related that on the day before the alleged attack she and the accused visited the house of a Shane Green and stayed there until the next morning when the accused said “Let’s go back to the flat and get some food”.  They went to the unit, obtained some food and as she was closing the door to the unit the accused said “Sam come here” and then went to the door to the Elliott’s unit, kicked at it, the door flew open and he went in.  She followed him in.  He told her to sit down.  She said that the Elliotts were asleep, David Elliott got up, the accused said something to him, then became angry and stabbed David Elliott after he (the accused) had demanded that Mark Elliott expose his penis.

In cross-examination Daniels said that at Shane Green’s house the accused had punched her “Because of them blokes, all them blokes, Shane Green, Trevor - I don’t know what Trevor’s last name is.  They were being idiots.  Then Ken got up and clobbered me in the face”.

Concerning the incident in the Elliott’s unit, Daniels said the accused:-

“A.... He was yelling out ‘You fucked my missus, you fucked my missus, didn’t youse?  You fucked my missus’ to them and they said ‘No, we didn’t.  No, we didn’t’.

Q...... Were you trying to stop him.

A...... Yes, I was screaming at him and I think he realised after he done it that he made them bleed, we got to get out of here.

Q...... What were you saying to him.

A...... I was telling him to stop it.  I was crying, saying ‘Stop, stop, why are you doing this?’

Q...... Did you tell Ken you hadn’t had sex with them.

A...... That’s why he went there, to ask them.

Q...... Why did you say that’s why you went there.

A...... That’s why he kicked the door open, that’s what I mean.

Q...... Is that what Ken said or is that why you think he kicked the door open.

A...... He said it to them when we were inside the house.

Q...... What did he say.

A...... ‘you fucked my missus’.  They say ‘No’.  He said ‘Did you give her anything?’.  They said ‘No’.  They were all asleep anyway when we went inside the house.”

Daniels related that before the incident at the Elliotts unit she was present when the accused asked their son Tane, then aged 10 years, and who was living with the accused, whether he knew “If mum done anything with anyone”.  She said the boy did not know what the accused was talking about.  She denied that Tane, in her presence, suggested that she had been having sex with the Elliotts.  She said the accused could have alleged to her that she had been having sex with the Elliott’s - she could not remember but then said he had “asked me about it but not on that day” and not before that day, meaning I think the day of the alleged attack upon the Elliotts.

Daniels said that about four or five months before the alleged attack upon the Elliotts, the accused had consulted a psychiatrist, Dr Darmer, over a period of about three months who (or it might have been a Dr Saraf) prescribed medication for the accused, serenace and cogentin.

Dr Raeside is a Fellow of the Royal Australian and New Zealand College of Psychiatrists who has practiced full-time in forensic psychiatry since 1992.  He is presently employed by the Forensic Mental Health Service based at James Nash House, the psychiatric in-patient unit for prisoners, where the accused has been one of his patients since he was transferred there from the Adelaide Remand Centre.

Dr Raeside wrote three reports dated 16th September 1997, 12th November 1997 and 26th November 1997 which were tendered as his evidence in chief.  They are Exhibit D1.

Dr Raeside’s memory is that he first saw the accused in August 1997 and diagnosed him to be a chronic paranoid schizophrenic.  He said he first formally interviewed the accused for the purpose of preparing a report upon his mental competence on 9th September 1997. For that purpose he had the James Nash House clinical case notes, the depositions of witnesses he listed in his report dated 16th September 1997, including David and Mark Elliott’s statements, and he also spoke to the accused sister, Denise Wipa by telephone.

In his first report, Dr Raeside recorded the health and personal history he obtained from the accused and what he was told by the accused about this alleged offence, concerning the latter of which he wrote (pages 3 - 4):-

“As previously discussed, your client said that his wife left him in January 1997 due to the violence in the home.  Together with her children she moved to Noarlunga where she was offered refuge by the Noarlunga Christian Centre.  However, Mr Wipa said that he followed her and he eventually was seeing her every day, but not living with her.

He related how he discovered that his wife had slept with two males next door (a father and son) David aged 39 and Mark aged 17.  Apparently Mr Wipa’s son told him first, saying that he had seen his mother kissing the neighbours.  Mr Wipa said that he then confronted her about the incident, which she initially denied.  However, he said that she eventually told him that she would tell him the truth if he “promised not to do anything”.  Apparently she then confessed to having sex with the neighbours.

In response to this information, Mr Wipa said he got a knife out of the kitchen and went next door.  He recalled kicking in the front door and stabbing David (the father) in the stomach and Mark (the son) in the penis.  He said he “told them not to mess around with me” and he added that he had known them from Sydney and that they were “junkies”.

Mr Wipa explained that after his partner had arrived at the refuge in Noarlunga she had called him to say “guess who’s here?” referring to the neighbours.  About two weeks prior to the alleged offense (sic), Mr Wipa said he had gone to Noarlunga and had approached them telling them “never to go to her house when I wasn’t there”.  However, he said that he believed that they had given her heroin and that she had never had heroin before.

I asked him why he believed she had had sex with them, to which he responded that he didn’t know and “didn’t ask why, I was just angry with her about taking heroin and the kids not knowing what was going on”.  Interestingly, Mr Wipa said that he hadn’t talked to her about the alleged offense (sic) since that time.

On specific questioning, Mr Wipa said he “just wanted to hurt them, I didn’t intend to kill them” because of what they had done to his wife.  He said that the thing that angered him the most was the fact that they had been to her house after he had told them not to go around and that they had given her heroin and “got into her as well”.

Following the alleged stabbing, Mr Wipa said that he “jumped in the car and left because I was angry”.  He went back to the church where he was soon confronted by police and arrested.  He related being surprised that the police were there as he had “told the victims not to call the police”.  He was unsure why he had told them this, but acknowledged that he might have been scared.  He added “I was so angry that I didn’t really now what was happening”.  However, he acknowledged that he knew it was illegal to assault them but had done so because of his anger.  On further questioning, he said that voices were not telling him to do this, but that he had noticed that since stopping his medication three days previously he had become “more angry than I had ever been”.

Dr Raeside in his report thought “a little puzzling” the conduct of Samantha Daniels as described to him by the accused, or set out in the depositions he had.  He asked that a statement be obtained from her about the events leading up to and during the time of the alleged attacks, the issue being, he wrote, “... whether (the accused) was able to reason with a moderate degree of sense and composure about the information that was apparently given to him by his defacto and his son”, Dr Raeside having concluded that the accused knew the nature and quality of his conduct and that it was unlikely he was unable to control his conduct as a consequence of his mental illness.

In his second report dated 12th November 1997, Dr Raeside wrote to the accused’s solicitor:-

“Thank you for your recent letter providing extra information regarding your client.  I understand that his de facto wife has informed you that the two male victims were supplying her with heroin.  However, she denies having sex with them.  Mr Wipa’s son apparently told his father that they were having sex with her.

With this extra information to hand I believe that on the balance of probabilities your client was not mentally impaired at the time of his offense (sic), pursuant to Section 269 of the Criminal Law Consolidation Act. It is possible that his mental illness at the time was affecting his ability to know the wrongfulness of his action, but it is more likely than not that he knew the nature and quality of his actions, the wrongfulness of them, and that he was able to control his conduct. Therefore I would not be able to support a mental impairment defense (sic) at this stage”.

In his third report dated 26th November 1997, Dr Raeside records that he had been provided with “... recent information obtained from Mr Wipa and Samantha Daniel (statement taken 18/11/97)”, referred to opinions he had expressed in his two previous reports and went on:-

“New Information
Mr Wipa’s letter
In his hand written letter to you Mr Wipa now denies that his son told him that Ms Daniels was sleeping with the neighbours and victims in the matter.  He states “it was just one big delusion I was having”, and added that he believed that what he was saying at that time was true.

Ms Daniels statement
Ms Daniels reports past paranoid episodes in which her partner accused her of being unfaithful to him.  She denies the truth of any of his allegations of being unfaithful.  Additionally she reports episodes of explosive violence towards her in the setting of his paranoia.

She admits that she was offered heroin by the victims, denies that she accepted the offer, but said that she told Mr Wipa subsequent to his arrest.  In relation to the actual incident she relates increasing paranoia on his part leading up to the attack and says that he was not taking medication at the time.

Conclusion
I return to my original opinion as expressed in my report of 16/9/97.  It is not critical whether Ms Daniels was sleeping with the neighbour and accepting heroin from them or not.  The issue at hand is your client’s mental state at the time of the offense (sic).  However, the new information seems to confirm that he was acting on delusional ideas rather than over reacting on fact.

If the new information is correct I therefore believe that, on the balance of probabilities, your client was not mentally competent at the time of the offense (sic) so as not to be able to reason with a moderate degree of sense and composure about the wrongfulness of his action.  In my opinion, if the recent information is accepted, he was psychotic and experiencing paranoid delusions at the time of the offense (sic).  I believe he knew the nature and quality of his actions and that he could have controlled his conduct.

In cross-examination Dr Raeside said he had no doubt that the accused had been mentally ill during the period he has been treating him and was mentally ill at the time of the alleged offence (page 52).

Dr Raeside referred to two incidents, related to him by the accused, which Dr Raeside said were examples of the accused’s paranoid ideas; they were, first, locking Samantha Daniels and the children in the house to prevent the children or one of them attending school because of the accused’s concern for their safety and, second, evicting a boarder from the accused’s house because he believed Samantha Daniels and the boarder were plotting to get rid of him.  Those two incidents found support for some of their features in the evidence of Samantha Daniels which I have set out earlier.

Dr Raeside said that most paranoid schizophrenics “Would know the wrongness of their action.  It would be uncommon, less common for someone to be deprived of that ability” and observed that there was nothing in the events of the incident at the Elliott’s unit, viewed alone, which pointed to the accused, although suffering from the mental illness he identified, not knowing the wrongfulness of his actions.  Therefore, Dr Raeside said at the time of his first report it was unclear on the information he then had whether the accused “was acting on the basis of delusional (ie paranoid) thinking at the time” - it was only possible the accused might not have been able to reason with a moderate degree of sense and composure about the wrongfulness of his acts, and so he sought further information “because if it was true that (the Elliotts) were supplying heroin to her (and it was true she was having sex with them), then it’s more likely that (the accused) chose simply to act aggressively because he was angry, and therefore, that, I suppose given his background, could be seen to be a reasoning with a moderate degree of sense and composure given the nature of him” (page 50), that is the accused was acting out of a wrong-headed belief in doing what he did and not acting with impaired judgment as part of a delusional belief caused by, or being part of, his illness.

Dr Raeside stressed, as I understood his evidence, that the strength or the severity and the basis of the accused’s delusional belief concerning Samantha Daniels sexual activity with the Elliott men and her use of heroin provided to her by them, is fundamental to his opinion that the accused did not know that his acts against those men were wrong; and an assessment as to the irrationality of the accused’s belief depended upon the information he subsequently obtained.  He said “If someone simply reaches a wrong-headed belief that’s probably all there is to it.  If someone is deluded, they may well have other factors such as disorganisational thinking” (page 55).  Dr Raeside was questioned about the information he later obtained

“Q.... What was the new information which, in your view, confirmed in your mind that he was delusional.

A...... The fact the he believed that he had been told she was having a sexual relationship with these men.  My original information was that he said he had been told by his son that his partner was having a sexual relationship with these two men.

Q...... That was the original information.

A...... Yes, and the subsequent information that I was provided with indicates that this idea hadn’t come from his son and hadn’t come from any other source apart from his own mind.

Q...... That was the only new information, was it.

A...... The other new information was that - well, certainly his partner denied being unfaithful to him, but also that he indicated that she had been offered heroin by these two men but had declined it and had not told him about their offer until after his arrest, indicating that he had not been aware from her or from others about heroin beforehand.  So both of those issues appear to have been products of his own mind.  But, as I say, of course that depends on whether you accept that information is accurate or not.

Q...... On the information you were given.

A...... Yes.  I note that information isn’t contemporary at the time of the offence, which is why -

Q...... One has to approach it with a degree of caution.

A...... Yes.

Q...... For the simple reason that memories can be defective.

A...... And, as I said, the question is whether you accept it as factual or not, that new information.

Q...... So that led you to think that his belief that there had been some inappropriate activity between his wife and the Elliotts was delusional.

A...... Yes.

Q...... Rather than sane wrong-headed, if I can use that expression.

A...... Yes.

Q...... But that, of course, doesn’t of itself mean that he was unable to appreciate the wrongness of the actions that he performed as a result of this belief.

A...... That’s correct.  It simply increases the likelihood.

Q...... And whether it tips it over the top, you can’t say.

A...... It is not for me to say.  I have offered an opinion, but it is not for me to decide that.

Q...... As you have already agreed, it is very - slightly different words - it’s pretty shaky ground.

A...... I’d say it was borderline on both sides of that balance.  If I was to allocate a percentage of that, I would say it was somewhere between 45% and 55% balance of probabilities; with it over 50% being delusional, slightly under if it is not delusional.

HIS HONOUR

Q...... I don’t understand that.

A...... If we assume the balance of probabilities is more likely than not or greater than 50% - Mr Brebner has used the words ‘on shaky ground’ - I would say if he was indeed acting on a delusional belief; in other words if the information supplied to me was accurate and it was a delusion, then he is probably in the 50% to 55% range.  If it was over-reacting to fact, or a wrong-headed idea as Mr Brebner uses, then it would be less than 50% and therefore would not be more likely than not.  But I’m not talking about 80%, 90% probability, but simply very close to the balance.”    (p57-59)

Dr Raeside was taxed about the effect on his opinion were it to be the case that:-

(a).... immediately before he broke into the Elliott’s unit the accused had seen Samantha Daniels go to the window of the unit and ask for a cigarette.

(b).... the accused had been present when heroin was discussed between Samantha Daniels and one of the Elliotts.

Dr Raeside said, as to the first, it would not make any difference because if the accused had a paranoid delusion about the sexual activities of Samantha Daniels with the Elliotts it would have been reinforced, and if he were not delusional on that matter the event would contribute to his wrong-headed idea about there being such a relationship.  As to the second he said:-

“... it certainly cuts down the possibility about whether heroin was actually involved but as far as his anger, it could also be the trigger to acting on a delusional belief but certainly it cuts down the question as to whether heroin was actually involved, if he had heard that” (page 60/61).

......... The final matter put to Dr Raeside by counsel for the DPP, and his answer, in my view lessened the weight of his opinion upon the issue in this investigation.  At page 61:-

“Q.... The plain fact of the matter is, even if he was delusional, he, nonetheless, could still have been able to appreciate the wrongness of what he was doing.

A...... Certainly, yes.”

The accused did not give evidence and therefore many of the matters set out in Dr Raeside’s reports, and sourced from the accused, have not been proved; indeed as to some of them there is no evidence at all, they are simply Dr Raeside’s record of what he was told by the accused.  The accused’s counsel submitted that were the accused to have been called to give evidence the Court “would have been faced with having to decide on each piece of evidence that he gave whether that was evidence according to his recollection, or was it a product of delusion currently operating, or is it in any other way effected by his mental illness”.  That may be so, but the onus (as I have decided) being on the accused the Court has not had the benefit of the accused’s evidence nor the opportunity to weigh his evidence on matters concerning the accused’s belief that Daniels had sexual relations with the Elliott men and had used heroin provided by them.

Dr Raeside described as “borderline” whether the accused was unable to appreciate the wrongfulness of his act by reason of a delusional belief concerning Daniels sexual relations with the Elliotts or the use of heroin by her, basing his view in relation to the accused’s belief that it had been the product of his own mind on the new information referred to in his evidence which I have reproduced earlier, and as to which he said “that it depends on whether you accept that information is accurate or not”.

The substance of Dr Raeside’s opinion is that if indeed the accused’s belief concerning Daniel’s relationship with the Elliotts and her use of heroin was the product of his own mind, that is it was a paranoid delusion, then it was more likely than not that the accused’s attacked upon the Elliotts was a manifestation of his chronic paranoid schizophrenia in which on the balance of probabilities he did not know that what he was doing was wrong.

Each of David Elliott, Mark Elliott and Samantha Daniels denied there had been any sexual relationship between them and Samantha Daniels said that as she remembered the only time Wipa had accused her of such a relationship with the Elliotts was after the day of the alleged attack him upon the Elliotts. 

What the accused reported to Dr Raeside he was told by his son Tane of Daniels relations with the Elliotts, the accused subsequently withdrew and as I have said Samantha Daniels deposed that as best she remembers the accused (contrary to what he told Dr Raeside) did not assert such a relationship to her before the day of the alleged attack.  This evidence points to the accused having a paranoid delusional belief that Daniels had had sexual relations with the Elliotts.

There is a conflict between David Elliott and Samantha Daniels concerning the topic of heroin.  He said he asked her to obtain heroin for him.  She said he offered heroin to her which she declined.  David Elliott said that the accused was present when the topic of heroin was spoken about between him and Daniels.  Daniels said the accused was not present.  Whichever version is the truth on this topic of heroin neither supports or points to there having been a use of heroin by Daniels supplied by either of the Elliott men or anyone else.

On the evidence and accepting Dr Raeside’s opinion generally as to the accused’s mental illness, on the balance of probabilities the accused on the day of the alleged attack had a paranoid delusional belief that Daniels had had sexual relations with the Elliotts and she had used heroin supplied by them.  And that being the case then whether Daniels asked David Elliott for a cigarette (as he described) just before the accused broke into the Elliott’s unit is equivocal upon the question of whether the accused knew his actions to be wrong, that is he could not reason with a moderate degree of sense and composure.

Dr Raeside’s opinion is that if the accused did indeed have a delusional belief as to Samantha Daniels relationship with the Elliott men and that she had used heroin supplied by them, then in his actions upon that delusional belief, and in the context of the matrix of his mental illness, the accused more probably than not, to the degree Dr Raeside described, could not know that what he was doing was wrong.  I note, again, that Dr Raeside said the accused’s case is borderline.  In that connection:-

(a).... Dr Raeside wrote in his first report that the accused “... acknowledged that he knew it was illegal to assault them but had done so because of his anger.  On further questioning, he said the voices were not telling him to do this, but that he had noticed that since stopping his medication three days previously he had become “more angry than I had ever been”.

(b).... When arrested a few hours after the attack the accused said inter alia “Will I go to gaol?”

Dr Raeside was not questioned about the part, or the effect, those two matters played in the opinion he finally formed.  I assume he had regard to them in reaching his ultimate opinion and whatever weight might be given to them by a lay mind as tending to show the accused’s knowledge of the wrongfulness of his actions, expert medical opinion would not give them such weight.

.................. In the result the Court is left with the opinion of Dr Raeside being founded on the accused having at the material time a paranoid delusional belief concerning Daniels relationship with the Elliotts and her use of heroin.  I have earlier found that the evidence supports that the accused had such a belief, and that being the case, the factual basis for Dr Raeside’s opinion is established and notwithstanding the degree by which Dr Raeside judged that the accused’s delusional belief meant that he could not know that his actions were wrong, there is no sound basis on which the Court should reject his opinion.

.................. I am satisfied on the balance of probabilities that at the time of the conduct the subject of the alleged offences the accused was suffering from a mental impairment, namely the mental illness chronic paranoid schizophrenia and in consequence of that mental impairment he did not know that the conduct was wrong.