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 the objective elements of each of the offences had been established.
I then proceeded with a trial of the accused’s mental competence. On that trial, the accused had the onus of establishing, on the balance of probabilities, that he was not mentally competent to commit the offences. I heard evidence from the accused himself and from witnesses called by him, namely, his general practitioner, Dr Nguyen, his psychatrist, Dr Czechowicz, and from Dr Wood, a neuropsychologist. The prosecution led evidence from Mr Reid, a neuropsychologist and from Dr Raeside, psychiatrist. In addition, a number of medical reports were tendered by consent without their authors attending to give evidence. A number of hospital and medical case notes were also tendered.
At the conclusion of the hearing, I announced my finding that the accused had been mentally competent to commit the offences. I said that I would publish my reasons later. Following my announcement of that finding, the accused asked to be re-arraigned. He then pleaded guilty to the first four counts The prosecution accepted those pleas in satisfaction of all counts. Given the pleas, the publication of reasons may, strictly speaking, be unnecessary. However, I publish these reasons as they address the principal matter which required decision in the trial and they may be of assistance to the parties in the sentencing process.
Circumstances of the Offending
In the first part of 2005, the accused was staying with his wife at premises in Marwick Court, Greenwith. The victim of the offences, who I will call JMM, lived with her husband and two children in Dynasty Court, Greenwith. Marwick Court is separated from Dynasty Court by a reserve. At about 2.00 pm on Monday 2 May 2005, JMM was home by herself. Through a window she saw the accused walking slowly up the street. He was then wearing a dark coloured suit-type jacket and blue denim jeans. JMM then attended to matters in the master bedroom of her home. While doing this, she became aware that the accused had entered the front door of her home. At this stage he had a pair of bright green coloured rubber dishwashing gloves on his hands.
JMM was terrified. She screamed and called out to her neighbour. The accused rushed towards her in the bedroom and, as he did so, took a knife from behind his back. The knife was similar in size and style to a kitchen breadknife. Against JMM’s resistance, the accused shut the bedroom door, while at the same time telling her to stop her screaming.
At about this time, JMM grabbed the knife blade with her right hand. She struggled with the accused but all the while holding the knife blade. JMM tried to escape through the bedroom door but was prevented from doing so. The accused wrested the knife from JMM’s hand. She went to the ground on her back. The accused restrained her by kneeling with his weight across her thighs. JMM continued to scream and at one stage grabbed the knife with her left hand. During the course of a struggle, the accused placed his left hand across JMM’s mouth, telling her to be quiet. He asked JMM whether she had children and where they were. He also asked whether there was anyone else in the house at the time. He said to JMM words like “I don’t want to hurt you, I need money. I need money for drugs”. He also told JMM to look at him and to look at his eyes.
JMM told the accused that she had some money in the bathroom. She explained to the accused where it was. He asked her to let go of the knife but JMM was too distrustful of him to do so. They walked together into the bathroom with JMM still holding the knife blade. In the bathroom, JMM had to let go of the knife in order to access the money. The accused was in an agitated state and yelling at JMM. When JMM produced the money, the accused snatched it from her and put it into his jacket. An exchange along the following lines then occurred:
Accused:“You’ve seen my face, you can put me into gaol for this”. (This was said more than once).
JMM:“I don’t know you, I don’t want to know you, I’ve never seen you before, I don’t want to remember your face, just take the money and go.”
Accused:“I can’t, I have to finish the job, I have to kill you.
Go into the bedroom and lie on the bed.”
JMM:“No, I’ll just sit here.”
Accused:“I’ll have to kill you.”
This was repeated several times.
JMM: (Yelling and screaming)
Accused: “I’ll have to kill you.”
At some stage the accused knelt down next to JMM, holding the knife in his right hand and raising it above his head. The knife was pointing towards JMM who was pleading with the accused for her life. The accused then started bringing the knife down with great force, several times, in a dagger-like action. He appeared to be aiming for JMM’s neck, chest and stomach. Each time he did this, JMM avoided or deflected the blow, either by grabbing the knife or part of the accused’s arm. All the while JMM was yelling and screaming. The accused attempted to prevent her doing so by placing his left hand across her mouth, but JMM bit him.
After a struggle, JMM was able to kick the accused in the groin. This caused the accused to fall and to drop the knife. When this happened, JMM was able to run from the bedroom and from the house. When she got outside she saw the accused walking briskly towards the reserve.
JMM sustained a number of serious lacerations to both hands as well as minor lacerations to her legs.
The account given above is taken from the declaration statement of JMM. I am satisfied beyond reasonable doubt about those matters. The accused said that he could not remember any of these events. He has not been able to give an account to any of the medical practitioners who have examined him.
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
The accused submitted that he was mentally incompetent to commit the offences because, as at 2 May 2005, he suffered from two mental impairments, one being the mental illness of post-traumatic stress disorder (“PTSD”) with associated depression and the second being an intellectual disability. That disability was an impairment of his cognitive functioning resulting from organic brain damage. The PTSD and depression were said to have been caused by experiences of the accused while in the army and while in Vietnam, and re‑activated by his experience in the MVA. The brain damage was said to have been caused by a head injury sustained in the MVA, together with the accused’s excessive alcohol consumption. The two impairments in combination had the consequence, it was said, that the accused was unable to control the conduct constituting the offences, within the meaning of s 269C(c).
The accused accepted that he knew the nature and quality of the conduct involved, and that he knew that his conduct was wrong.
The accused must first establish that as at 2 May 2005 he suffered from a mental impairment. Then he must establish, on the balance of probabilities, that in consequence of the identified impairment, he was unable to control his conduct.
I proceed on the following basis. If the accused, at the time of carrying out the objective element of the offences, was unable to refrain from a willed action, he had the relevant inability to control his conduct.[1] This circumstance would exist if the mind of the accused was such that he lacked the capacity to exercise willpower to control his physical acts.[2] What must be established is an actual inability to control the relevant conduct, ie, the conduct comprising the objective elements of the offences with which he is charged. Putting to one side those cases in which a partial inability to control the conduct is nevertheless so substantial that it can be said that there is no ability at all to control the relevant conduct, an impaired ability to control conduct is not sufficient for the purposes of s 269C(c).
[1] R v Radford (1985) 42 SASR 266 at 273 per King CJ; R v Harm (1975) 13 SASR 84 at 102 per Bright J.
[2] Cf R v Byrne [1960] 2 QB 396 at 403 per Lord Parker CJ.
There are two principal aspects of the evidence to be considered. The first is the psychiatric and psychological evidence and the second is the conduct constituting the offences. In my opinion, a number of inferences about the accused’s control of his conduct can be drawn from a consideration of that conduct, and the circumstances surrounding it.
Before addressing the expert evidence upon which the accused relies, it is appropriate to make findings about the MVA in which the accused was involved on 6 September 2000 and his alcoholism.
Motor Vehicle Accident
On 6 September 2000, at about 7.00 am, the accused was a passenger in the rear seat of a vehicle being driven by his wife from Alice Springs to Hart’s Range in the Northern Territory. He was unrestrained by a seat belt. While travelling at about 100 kph, the car rolled over and came to rest in a creek bed. The accused said that, apart from feeling the loss of control of the car commencing, he does not remember the actual rollover occurring. He remembers waking up with a large load on his chest. That turned out to be a crated trolley jack which had been in the cargo area of the vehicle. He said that he was gasping for air and was terrified. The accused was taken to a nearby station and then retrieved by the Royal Flying Doctor Service (“RFDS”) to the Alice Springs Hospital.
The case notes of the RFDS and the Alice Springs Hospital were in evidence. They show that the accused was first seen by the RFDS at about 9.40 am on 6 September 2000. He was described as argumentative and smelling of alcohol (the accused acknowledged that he had been drinking alcohol in Alice Springs on the night preceding the MVA). There was a 4.5 cm laceration on his scalp behind his left ear, but the blood loss was said to be minimal. He described no loss of consciousness. A Glasgow coma score was recorded as 15. This score indicates that there was no neurological impairment at that stage. The accused did, however, complain of headache as well as pain and bruising in his ribs. There was some disagreement as to the nature and extent of any head injury which the accused may have suffered. My conclusion is that any concussive head injury was not severe, and is unlikely to have been the cause of the cognitive deficits now being experienced by the accused.
The accused arrived at the Alice Springs Hospital at 1.24 pm on 6 September 2000, but walked out of the hospital without being seen by a doctor. He re-presented on the following day. X-rays at that time revealed fractures of the right seventh and eighth ribs. In addition, the accused had a small right pneumothorax. The accused was discharged from hospital on 10 September 2000.
Accused’s Alcoholism
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.
Dr Wood had access to copies of the reports of two CT brain scans and one MRI brain scan. He considered that these indicated the presence of cerebellar atrophy, but that there was no evidence of previous frontal lobe damage. Dr Wood agreed that the cerebellar atrophy could have been the result of chronic alcoholism.
Dr Wood concluded that the major cause of the accused’s cognitive impairment is likely to have been his chronic alcohol abuse rather than the effects of any head injury sustained in the MVA. Whatever its cause, he considered that the plaintiff did have some frontal lobe dysfunction. Dr Wood considered the accused’s impulsivity in particular to be consistent with the frontal lobe dysfunction which he had found on testing.
Dr Wood accepted that the accused may have an emotional disorder such as PTSD, but doubted that the MVA was a significant cause. He considered other factors in the accused’s background, including his army and mercenary service to be likely causes. With reference to the accused’s absence of memory of the events occurring on 2 May 2005, Dr Wood considered that this could be a consequence of the accused’s chronic alcohol abuse or, alternatively, a consequence of a dissociated state produced by the PTSD.
Dr Wood said that he “had doubts that [the accused] was able to adequately control [his conduct constituting the offences] because of the combination of his cognitive impairment and his impaired judgment”. It was the poor planning and, in particular, the gross lack of foresight evident in his actions which caused Dr Wood to have these doubts. He said that these features were consistent with the impaired cognitive functioning which he had found on testing.
Mr Reid examined the accused on 8 May 2006 at Yatala Labor Prison. He did not carry out the same intensive testing as had Dr Wood because repetition of the tests so soon after Dr Wood’s testing was likely to produce invalid results.
Mr Reid considered that the accused pre-morbidly had been of above average intellectual ability. His tests confirmed that the accused had some cognitive impairment and, in particular, impairment in new learning and short-term memory skills. Unlike Dr Wood, Mr Reid did not discern any significant impairment of executive functioning nor evidence of impulsivity. This difference in conclusion may be due to the fact that the tests administered by Mr Reid did not replicate exactly the tests administered by Dr Wood, or because of the accused’s professed tiredness when examined by Dr Wood. Mr Reid did accept, however, that the accused may have had some mild or subtle difficulties in executive functioning.
On the basis of the history and the contemporaneous medical records, Mr Reid concluded that the accused had not suffered a significant head injury in the MVA. He thought that the accused’s cognitive impairment was more likely to be caused by his long-term alcohol abuse than by a head injury in the MVA. Mr Reid also considered that the cerebellar atrophy revealed by the CT brain scans were more likely to be caused by the accused’s chronic alcohol abuse as such atrophy is rarely seen following traumatic brain injury.
Given that his testing did not reveal significant or substantial damage to the frontal lobes of the brain and, in particular, had not revealed impulsivity, poor planning or impairment in deductive reasoning, Mr Reid did not consider that the accused had been unable to control his conduct on 2 May 2005.
The Psychiatric Evidence
Dr Czechowicz is an experienced clinical psychiatrist having obtained his psychiatric qualifications in 1972.
The accused was referred to him in April 2001 for treatment for problems then thought to be due to the MVA. Dr Czechowicz was the accused’s treating psychiatrist in the period from April 2001 until 2 May 2005 (he last consulted the accused on 31 March 2005). As part of his responsibilities at James Nash House, Dr Czechowicz again treated the accused whilst he was held in custody in the period from 6 June 2005 to 10 January 2006. Dr Czechowicz’s last examination on 4 December 2006 was apparently at the request of the accused’s legal advisors, and in relation to the current proceedings. As is to be expected in these circumstances, Dr Czechowicz’s assessment and opinion concerning the accused has developed over time as further history and information has been provided to him, and as particular issues have become more prominent at different times.
Dr Czechowicz considered that the accused does suffer from PTSD with an associated major depression. As I understand it, Dr Czechowicz attributed the PTSD and depression to the accused’s military and mercenary experiences, particularly the latter. While the accused made a recovery from that PTSD (apparently without medical intervention) Dr Czechowicz considered that he remains sensitised to further PTSD on exposure to significant trauma. Dr Czechowicz considered the circumstances in which the accused found himself after the MVA (ie, in the vehicle with a large load on his chest and struggling to breathe because of the pneumothorax) to be such a circumstance. The accused’s increased alcohol consumption since the MVA can be attributed in part to the PTSD. Dr Czechowicz said that alcohol consumption is often associated with PTSD.
Dr Czechowicz also considered that the accused suffered damage to his brain in the MVA. His opinion was that even in the absence of physical signs of injury at that time, there would have been some concussion suffered by the accused. This damage, together with the effects of the accused’s chronic alcohol abuse, account for his impaired cognitive functioning. As part of his treatment, Dr Czechowicz has prescribed a number of medications for the accused. These included an anti-depressenant (Avanza), a mood stabiliser (Epilim) and sedatives (Imovane and Stilnox) as well as other medications.
When Dr Czechowicz last saw the accused on 31 March 2005, he was concerned about the effects of the insurer’s recent discontinuance of compensation payments to the accused. He considered that the stress which this was producing aggravated the accused’s psychiatric state. Dr Czechowicz predicted at that time that the discontinuance of the psychological treatment and medication would have an adverse effect on the accused.
In Dr Czechowicz’s opinion, the accused was unable to control his conduct on 2 May 2005. This was because of his inability to control his impulses.
Dr Raeside is an experienced forensic psychiatrist. He has seen the accused on three occasions, 5 May 2005, 23 May 2005 and 3 May 2006. Each of these consultations was for the purposes of forensic psychiatric assessment. Dr Raeside accepted that the accused suffers from PTSD and depression. He considered that the PTSD is probably attributable to the accused’s mercenary and military experiences, rather than the MVA. Dr Raeside also accepted that the accused suffers from significant cognitive impairment but considers that to be alcohol related. The cognitive impairments are a consequence of frontal lobe damage. Dr Raeside was also of the opinion that the accused may have been affected by alcohol and his sedative medication at the time of the offences, but accepted in cross-examination that this was an assumption on his part.
Dr Raeside considered that the accused had been able to control his conduct at all times. This conclusion was a consequence of a number of matters: Dr Raeside’s assessment of the PTSD and depression; his assessment of cognitive impairments; his assessment of the conduct itself; the absence of evidence of increasing aggressive behaviour by the accused in the period prior to May 2005; and the absence of evidence of inability to control his behaviour in the period subsequent to 2 May 2005.
Inferences from the Conduct of the Accused
In my opinion, it is possible to draw a number of inferences from the very nature of the conduct in which the accused engaged. There are a number of aspects of the conduct to be considered, including its duration, the complexity of the actions involved, the extent to which the conduct was purposeful or directed as opposed to being random or reflex, the extent to which the accused responded in a purposeful way to changes in circumstances whilst the conduct was occurring, and the accused’s motive.
The conduct in question here was reasonably prolonged. In terms of time, it may not have taken more than a few minutes, but it was certainly not instantaneous. It involved a degree of persistence on the part of the accused.
The conduct involved a reasonable level of complexity, even if in some respects it was unsophisticated. The accused prepared himself for the intrusion into JMM’s house, including by putting a knife in the back of his trousers, and having gloves available. It is a reasonable surmise that the accused wore gloves so as to avoid leaving fingerprints. In the events which happened, the efficacy of the wearing of gloves was reduced because the accused did not have a facial disguise and a house which he entered turned out to be occupied. It is evident that the accused had changed into the suit-type jacket from the clothing which he had been wearing earlier in the day. It is probable that the accused did this so as to provide a cover for the knife. It was a warm day, and there was no other purpose for the accused to wear a jacket. The accused was seen to walk past JMM’s house. He must have turned back in order to enter it. That is, the accused must have made a selection of JMM’s house. All these elements suggest that there was a degree of calculation in the accused’s conduct.
In the house, having been confronted by JMM, the accused acted in a purposeful and adaptive way. He shut off JMM’s means of escape by closing the bedroom door; he warned her repeatedly to be quiet; he placed his hand across her mouth; he pinned her to the floor; he enquired about the presence of others in the house (it is reasonable to suppose that he was concerned about the possibility of detection, and others coming to her aid or raising an alarm); he told JMM of his purpose (ie, he needed money for drugs); he told JMM to take him to the money in the bathroom and, having obtained the money, told her that because she had seen his face and could put him in gaol he had to “finish the job” by killing her. The accused targeted vulnerable parts of JMM’s body. When JMM did manage to escape, the accused left the house promptly, and walked briskly away. He was later seen by a neighbour removing his jacket and wearing only one glove. These elements indicate that the accused modified and adapted his behaviour to meet the changing circumstances while in the house.
This conduct could not reasonably be described as random or reflex. On the contrary, it was purposeful and directed. The accused seemed particularly concerned about the prospect of detection, or of being disturbed.
The accused had a clear motive, ie, to obtain money with which to buy alcohol. Immediately after changing his clothing, the accused went to a nearby hotel.
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.
One may accept that these offences were poorly planned and carried out without much thought for the consequences. But those features do not lead rationally to the conclusion that their perpetrator was unable, in the sense I have outlined above, to control his conduct. Conduct which is poorly planned and ill thought out may be as controlled as well planned and sophisticated conduct. The accused’s conduct may be explicable by reference to the PTSD and his cognitive impairments. That is, those conditions may explain how a man of the accused’s background and pre-morbid intellectual capacity came to be engaged in the relevant conduct. But it does not, in my opinion, lead to the conclusion that the accused was not in control of his conduct.
There is a further reason for reservation about acceptance of Dr Wood’s opinion. Dr Wood seemed to accept that the accused may have been acting out training given to him in the army or, alternatively, actual experiences whilst working as a mercenary. The evidence from the accused is not sufficient to enable a conclusion to this effect to be drawn. Furthermore, Dr Czechowicz did not report being given a history of the accused being trained in, or involved in, knife attacks. Dr Czechowicz described the information which he had obtained from the accused about his Vietnam experiences as being cursory.
I am willing to accept that the accused did have the symptoms which Dr Czechowicz attributed to the PTSD. Dr Czechowicz’s opinion was that as at 2 May 2005 the accused was in a period of disinhibition. This disinhibition resulted in particular from the damage to his frontal lobes. It led to the accused making inappropriate responses to his impulses. Dr Czechowicz considered the accused’s behaviour to be out of character, and this factor, together with his diagnosis about the underlying conditions, led him to the opinion that the accused was unable to control his impulses. Dr Czechowicz acknowledged however that this conclusion could not be asserted with confidence. I am willing to accept that the accused may have been impulsive and prone to act without planning or thinking through the consequences. But that is not the same thing as saying that the accused was not able to restrain himself from acting in that way. Once again, my opinion is that the features to which Dr Czechowicz has referred might help explain the accused’s conduct but not to the extent of indicating that he was not able to exercise control at all over his conduct. I consider that the opinion of Dr Raeside is more persuasive on this topic.
Even had I preferred Dr Czechowicz’s evidence, it would not have warranted a conclusion that the accused was unable altogether to control his conduct. Dr Czechowicz considered that the accused suffered from impaired control of his impulses but acknowledged that he could not express any conclusion at all as to the extent of the control which the accused was able to exercise. As noted above, it is an inability to control conduct, and not just an impaired ability, which is required for the purposes of s 269C(c) of the CLCA.
I have referred above to the nature of the conduct in which the accused engaged. The inference I draw from the conduct is that it was quite controlled. Neither of the opinions of Dr Wood or Dr Czechowicz suggest to me that that conclusion is inappropriate.
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.