R v LANGE - [2007] SASC 243

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v LANGE
[2007] SASC 243
Reasons for Decision of The Honourable Justice White
29 June 2007
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY
Accused charged with offences of aggravated serious criminal trespass in a place of residence, unlawful wounding, aggravated robbery, attempted murder and in the alternative to attempted murder, wounding with intent to do grievous bodily harm - offences arose out of a single incident and involved one victim - objective elements of offences admitted - question of accused's mental competence to commit offences was raised - s 269C, Criminal Law Consolidation Act 1935 (SA) - trial of issue of mental competence heard by a judge sitting without a jury - whether accused suffered from a mental impairment at the time of the offences - whether, because of mental impairment, the accused was unable to control the conduct constituting the offences.
Held: accused did suffer from a mental impairment at the relevant time - mental impairment did not render accused incapable of controlling the conduct constituting the offences - presumption of mental competence not displaced.
Criminal Law Consolidation Act 1935 (SA), s 11, s 21, s 23, s 137, s 170, s 269A, s 269C, s 270A, referred to.
R v Radford (1985) 42 SASR 266; R v Harm (1975) 13 SASR 84, applied.
R v Byrne [1960] 2 QB 396, considered.

R v LANGE
[2007] SASC 243
Criminal

WHITE J: The accused is charged with five offences arising out of events occurring on 2 May 2005. They are aggravated serious criminal trespass in a place of residence, contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”); unlawful wounding, contrary to s 23 of the CLCA; aggravated robbery, contrary to s 137(2) of the CLCA; attempted murder, contrary to s 11 and s 270A of the CLCA; and, in the alternative to the charge of attempted murder, wounding with intent to do grievous bodily harm, contrary to s 21 of the CLCA. The accused pleaded not guilty to each of the charges.
A question of the accused’s mental competence to commit the offences was raised. I directed that the trial of the accused’s mental competence to commit the offence be separated from the remainder of the trial.
The accused elected for his trial, including the trial of his mental competence to commit the offences, to be heard by a judge sitting alone.
With the consent of the accused, I directed that the trial of the objective elements of each of the offences take place before the trial of the accused’s mental competence, and on that trial, I received the prosecution declaration statements. The accused accepted that the objective elements of each of the five offences had been proved. On the basis of the content of the prosecution declaration statements, and having regard to the concession of the accused, I was satisfied beyond reasonable doubt that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v LANGE

Details

AGLC: R v LANGE [2007] SASC 243
Case: [2007] SASC 243
Decision Date: 29 June 2007

CaseChat Overview and Summary

In the case of R v LANGE, the defendant was charged with several serious criminal offences, including aggravated serious criminal trespass, unlawful wounding, aggravated robbery, attempted murder, and wounding with intent to do grievous bodily harm. These offences arose from a single incident involving one victim. The objective elements of the offences were admitted, but the defendant raised the issue of his mental competence to commit the offences at the relevant time. The matter was heard by a judge sitting without a jury, with the central issue being whether the defendant suffered from a mental impairment that rendered him incapable of controlling his conduct, thus negating his criminal liability under section 269C of the Criminal Law Consolidation Act 1935 (SA).

The court examined the defendant's educational and employment background, which indicated that he was of above-average intelligence, having completed a BA with Honours and being a candidate for a Doctor of Philosophy degree before his studies were interrupted. Despite this, the court considered the defendant's long history of alcohol consumption and its impact on his mental health, particularly in the context of a motor vehicle accident in 2000. Neuropsychological evidence suggested that the defendant suffered from post-traumatic stress disorder (PTSD) with associated depression and cognitive impairment due to his alcohol consumption. However, the key legal issue was whether these impairments rendered him incapable of controlling his conduct as required by section 269C of the Act.

The court concluded that the defendant did suffer from a mental impairment at the relevant time but found that this impairment did not render him incapable of controlling his conduct. The neuropsychologist's opinion, while acknowledging the defendant's impairments, did not sufficiently address the specific inability to control conduct as contemplated by the statutory provision. The court held that the presumption of mental competence was not displaced, and the defendant was therefore found to be mentally competent to commit the offences.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The entry into the house constitutes the offence of aggravated serious criminal trespass; the lacerations to JMM during the struggle before the demand for money constitutes the offence of unlawful wounding; the taking of the money constitutes the offence of aggravated robbery; and the repeated bringing of the knife down in a dagger-like action constitutes the offence of attempted murder or, in the alternative, the offence of wounding with intent to cause grievous bodily harm, which are the subject of counts 4 and 5.The Accused’s Educational and Employment Background The accused was born in 1950 in Adelaide. He was 54 years old at the time of the offending. The accused left school in 1967 without having matriculated. He then spent three years in the Australian Army. He said that at the conclusion of his army service he became a member for six months of a multi-national task force working in Vietnam during the Vietnam war. This was a mercenary group. Although describing himself as a technician, the accused said that he had been engaged in fighting, including being involved in the killing of other persons. The accused returned to Adelaide and completed his matriculation in 1972 as a mature aged student. He then completed a BA with Honours at the University of Adelaide in the years 1973 to 1976. The accused then commenced study for the Degree of Master of Arts but in 1978 was accepted as a candidate for the Degree of Doctor of Philosophy. That degree was awarded in September 1982 for a thesis entitled “Cognitive and Behavioural Impulsivity Among Prisoners and Comparison Groups”. Between 1989 and 1994, the accused underwent six years of Undergraduate medical study at the University of Adelaide. Although a successful student in the early years, including winning an academic prize, he did not complete the degree. The accused has held a number of responsible executive positions, many of them with Aboriginal organisations. The first such position was that of Executive Director with the Kalana Community Association in Katherine in 1982, and the last as Town Clerk with the Arltarlpilta Town Council in 2000. The accused has not worked at all since a motor vehicle accident (“MVA”) on 6 September 2000. I accept that the accused has previously been a person of above average intelligence. His educational attainments and work experience are sufficient indication of that.Statutory Provisions Section 269C of the CLCA provides: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 expression “mental impairment” is defined in s 269A(1) as follows:“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 defined as:“mental illness” means a pathological infirmity of the mind (including a temporary one of short duration)Intoxication is defined as:“intoxication” means a temporary disorder, abnormality or impairment of the mind that results from the consumption or administration of intoxicants and will pass on metabolism or elimination of intoxicants from the body;The Accused’s Case

Evidence

Evidence Before The Court

For many years before May 2005, the accused had consumed large quantities of alcohol. This was acknowledged by the accused in his evidence and is borne out by many references in the medical and hospital case notes which were tendered. In October 1997 the accused acknowledged to the Modbury Hospital that he had been drinking approximately 90 g of alcohol a day for many years, with his consumption increasing over the previous three years. His daily consumption at that time was given as 20 pints of beer and one bottle of port. There were, however, periods (for example 1993 and 1994) when it was said that the accused had not consumed alcohol at all. In December 1998, the accused told a general practitioner that he was drinking three to four bottles of beer several times each week. At other times he has acknowledged binge drinking extending over several days. The accused said that his drinking increased after the MVA. The quantities consumed became greater, and the frequency and extent of the binges increased. His consumption increased to the extent that in 2002 he was admitted to the Kahlyn Hospital for treatment. This was successful and his consumption reduced in 2002 and 2003. However, after that the accused again began drinking large amounts episodically. This continued to May 2005.The Neuropsychological Evidence Dr Wood is a well qualified and experienced neuropsychologist. He carried out a neuropsychological examination of the accused at the Yatala Labor Prison on 10 March 2006. It was an extensive examination, comprising two hours in the morning, and two hours in the afternoon. As well as taking a history, Dr Wood administered a series of neuropsychological tests. As with the other practitioners who gave evidence, Dr Wood had access to a large number of medical reports concerning the accused. Many of those reports had been prepared in connection with his damages and compensation claims arising from the MVA. Dr Wood assessed the accused’s pre-morbid cognitive functioning (ie before the effects of his alcohol consumption and before any effects from the MVA) as being at least at the above average level. The accused is no longer functioning at that level. Instead, he operates at an average level of intelligence. The accused’s ability to learn and to recall new information is impaired. Dr Wood administered a number of tests to assess the accused’s executive functioning, ie, his capacity to engage in independent, purposeful, self-serving behaviour. Deficiencies in a person’s executive functioning may include a defective capacity for self-control or self-direction, and a heightened tendency to irritability, excitability, impulsivity, erratic carelessness, rigidity in thinking, and a difficulty in making shifts in attention. Impairment of the ability to plan effectively, to anticipate the consequences of actions, to self-regulate and self-control is also a consequence of impaired executive functioning. Although on some tests of executive functioning, the accused performed at above average levels, most of the tests indicated that his executive functioning was at below average levels. Dr Wood concluded that there was, in particular, an impaired ability to shift concepts and impaired inhibition of unwanted responses. The accused was observed to respond impulsively to some of the tests, ie, to respond quite quickly without apparent thought or consideration of the accuracy or of the consequences of his decisions.

Decision

Reasons for decision

I do not attach much significance to the absence of reports of uncontrolled behaviour by the accused since 2 May 2005. It is possible that the absence of reports of behaviour of this kind is explicable for other reasons. For example, the accused has since 2 May 2005 been living in a much more controlled environment, he does not have access to alcohol and he is subject to a more consistent medical regime. The absence of aggressive behaviour may be attributable to these aspects.Conclusion For these reasons, I am not satisfied that the accused was mentally incompetent as at 2 May 2005. I am not satisfied that the presumption in favour of mental competence had been displaced.

Ratio Decidendi

Legal Principle Established

Considered as a whole, this conduct does not have the character of being unwilled or uncontrolled. There is no suggestion that the accused was acting in some form of autonomic state.Consideration of Issues I am satisfied that as at 2 May 2005 the accused did suffer from a mental impairment. In fact, he suffered from two different kinds of impairment: the first being the PTSD with associated depression, and the second being the cognitive impairment. I accept that there may have been some deterioration in the accused’s condition in the months prior to 2 May 2005. There is support for this conclusion in the notes of Dr Nguyen and in the assessments of Dr Czechowicz. The insurer’s discontinuance of payments for compensation which was communicated on 7 March 2005 would itself have been a source of stress. I am satisfied that it was stressful for the accused. It effected a material change in his circumstances. It also made less available continuing psychological treatment and continued medications. The evidence on this topic is not very specific, but I consider that there may well have been some reduction in either the availability of medications to the accused, or alternatively, a reduction in the regularity of his taking of those medications. This too may help explain the accused’s conduct on 2 May 2005. Although a good proportion of the evidence and some of the submissions were directed to an identification of the precise causes of the two impairments which have been identified, I accept the submission of Ms David, who appeared for the accused, that it is unnecessary to make findings on that topic. It is sufficient for the finding to be made that the accused did suffer from PTSD with associated depression, as well as an impairment of his cognitive functioning. As to the extent of the cognitive impairment, I accept the opinion of Dr Wood in preference to that of Mr Reid. Dr Wood saw the accused for longer than did Mr Reid and administered more neuropsychological tests. As already noted, Mr Reid was understandably reluctant to repeat tests so soon after the administration of those same tests by Dr Wood. But it did mean that Dr Wood had a greater opportunity to observe the accused and a greater amount of material upon which to base his assessment. Moreover, Dr Wood’s assessment of the cognitive impairment of the accused is more in keeping with that of Ms Ryan, the neuropsychologist who carried out assessments of the accused in 2002. I accept that the accused has the cognitive impairments which were found by Dr Wood. However, I do not accept Dr Wood’s opinion as to the accused’s inability to control his conduct. In my opinion, Dr Wood’s opinion did not address the kind of inability to control conduct contemplated by s 269C of the CLCA. When asked in what way he considered the accused to have been unable to control his conduct, Dr Wood gave the following answer:I thought for an intelligent individual his problem-solving ability sounded to be quite impaired. He appears to be – and this is the difficult one, it’s difficult to know what’s going on in a person’s head at that point of time – difficult, it’s probably almost impossible – but he appeared to be in an agitated state and carried out actions which failed to show an understanding of the consequence of those actions. I don’t know how to express it, so I sat down and thought how I would have done the same thing.