R v Mauk

R v MAUK
[2000] SASC 99

Criminal
Trial by Judge Alone: Reasons for Verdict

DUGGAN J. The accused is charged with the murder of Craig Campbell at Glenelg on 19 May 1999. He has elected to be tried by judge alone.
Prior to the trial Mr Braithwaite, for the accused, intimated that the defence would be raising the issue of the accused’s mental competence to commit the offence. Part 8A of the Criminal Law Consolidation Act, 1935 allows a discretion to the court to decide whether to deal first with the question as to whether the objective elements of the offence have been established or to proceed first with the issue of the accused’s mental competence to commit the offence. I accepted the submissions of both counsel that I should address the proof of the objective elements first.
The accused is 29 years of age. At the time of the alleged offence the accused was sharing a flat at Gordon Street, Glenelg with the deceased who was 61 years of age. Mr Campbell’s body was found in the flat when police broke into it at approximately 10.00 pm on 19 May 1999. A subsequent post-mortem examination revealed that he had died as a result of blunt head and facial trauma. There were extensive injuries to the head, neck and torso.
The accused was arrested a short time later at a service station at Glenelg North. He was questioned at some length by the police but, for the most part, gave non responsive answers.
It is not in dispute that the accused inflicted the injuries which caused the death of the deceased. At the commencement of the proceedings this morning Mr Braithwaite made an admission on behalf of the accused in the following terms:
“Pursuant to s 34 of the Evidence Act, Craig Ingo Mauk admits that on 19 May 1999 at Glenelg he inflicted upon Craig Rodney Campbell the injuries described in the witness statement of Dr John Gilbert, dated 6 July 1999. These injuries were inflicted by kicking and stomping and included severe skeletal fractures and ‘closed head injuries’ which caused the death of Craig Rodney Campbell.”
In the light of this admission and the material in the depositions which were tendered by the prosecution, I find that the objective elements of the offence of murder have been established beyond reasonable doubt.
I turn then to the issue of mental competence to commit the offence of murder. The accused has a past history of paranoid schizophrenia which is extensively documented in the report of Dr Raeside, Consultant Forensic Psychiatrist employed at James Nash House. The accused was admitted to James Nash House shortly after his arrest and has been there under clinical care since that time. Friends and relations have observed strange behaviour by the accused over a period of some years. Eventually, on 11 May 1997, he was admitted to Glenside Hospital for a period of one month. He had exhibited signs of paranoia and had been behaving in a strange manner. On the occasion of his admission to Glenside his parents gave a history of him being suspicious of people for at least three years.
There was a second admission to Glenside Hospital on 9 July 1997. However the accused discharged himself against medical advice and, at this stage, it was considered that he could not be detained under the Mental Health Act.
Then on 4 January 1998 he was again admitted to Glenside Hospital suffering from an acute exacerbation of chronic paranoid schizophrenia. He had been taken to Flinders Medical Centre by family and friends. On this occasion he was detained under the Mental Health Act and transferred to a closed ward facility at Glenside Hospital. He denied any psychotic symptoms but staff observed a general paranoia. He applied unsuccessfully to the Guardianship Board to have his detention order lifted. The accused was unhappy about the diagnosis of schizophrenia and continued to deny any psychotic symptoms. This was contrary to ward observations. Eventually he was allowed back into the community. His family and friends tried hard to assist him, but they faced considerable difficulty in doing so.
When interviewed by Dr Raeside the accused said that he had little recollection of his admissions to Glenside Hospital. He admitted that he had tried to avoid those charged with supervising him in the community. He said he had stopped taking medication six months previously and had not received any case management because the authorities did not know his whereabouts.
The accused told Dr Raeside that he had become more paranoid during the month prior to the killing. He said he was unable to remember much of what happened on the day of the alleged offence. He said he recalled killing Mr Campbell by kicking him in the head. He was unable to give any explanation for his behaviour. He said that he killed the deceased “in the night time”.
The accused told Dr Raeside that after killing the deceased he went to visit a friend and invited the friend back to his flat later in the day. The friend did not go into the flat but the accused said he began knocking on neighbours’ doors asking them to telephone a friend to come and get him again. There are declarations from some neighbours who said that he asked them to contact his friends to come around. He was in an agitated state and he agreed with the suggestion of one of the neighbours that they call the police to get his friends for him. A short time later one of the neighbours asked if he still wanted him to ring the police and he said “Yes”. The neighbour then rang the police who subsequently attended at the flat.
The accused told Dr Raeside that he believed his thoughts were being controlled by television. It is Dr Raeside’s view that the witness statements and police interviews support the diagnosis that the accused was in an acutely psychotic state around the time of the alleged offence. According to Dr Raeside’s report the accused’s mother gave a good description of the evolution of his psychiatric illness, increasing paranoid ideas, the development of poor personal hygiene, lack of motivation and general deterioration in his personality. She described psychotic thought disorder at times.
The accused rang his mother on the night prior to the offence and she said he sounded psychotic again. She called the emergency health service as she knew that he had not had medication for several months. She said that the first time she visited him after the alleged offence he was “the worst she had ever seen him”.
Three of the accused’s friends provided detailed and helpful statements which traced the gradual deterioration of the accused’s psychiatric condition. Neighbours and police have also provided descriptions of the accused’s thought disorder and paranoia. In Dr Raeside’s view the video of the police interview demonstrates the accused’s markedly disturbed mental state. According to Dr Raeside the accused has made only gradual and slow improvement since being in James Nash House.
Dr Raeside gave the following summary of his conclusions in relation to the accused’s mental state:
“In summary Mr Mauk is a 29 year old man with a history of an evolving psychotic illness for at least the last two to three years, but probably developing for at least six years. I would agree with the diagnosis of Paranoid Schizophrenia based on the existence of paranoid delusions, psychotic thought disorder, auditory hallucinations, and negative symptoms (flattening of mood, avolition, etc). He appears to have experienced a particularly severe form of the illness with several hospitalisations and marked disruption to his social and occupational functioning.
The history suggests regular and, at times, heavy marijuana use. Although this can aggravate the symptoms of schizophrenia (including paranoia as well as negative symptoms) many people so affected use the drug in an attempt to self-medicate. It is most unlikely that Mr Mauk’s symptoms and illness course are solely attributable to marijuana.”
Dr Raeside went on to say that there is abundant evidence that the accused was acutely psychotic at the time of the alleged offence.
Ms Follett, for the DPP, tendered a psychiatric report prepared by Dr K P O’Brien, the Director of Forensic Mental Health Services. Dr O’Brien examined the accused at the request of the DPP.
In the course of his report Dr O’Brien observed:
“There is very considerable evidence on the many statements made and available (acquaintances, friends and family) that for some months prior to the assault Mr Mauk’s mental state was deteriorating. This has been graphically described in Dr Raeside’s excellent report and, again, it is not necessary for me to repeat that detail. Suffice it to say that I am satisfied that Mr Mauk had suffered another relapse of his paranoid schizophrenia, most likely brought about or exacerbated by his non-compliance with medication and his excessive use of marijuana. I am satisfied that at the time of the attack on his flatmate, Craig Campbell, he was in a psychotic state.”
Dr O’Brien summarised the accused’s account of the incident:
“On questioning him directly about the murder, he gave me an account that was not very dissimilar to the one detailed in Dr Raeside’s report. Essentially, he told me that he had lost control over his behaviour but he did not know why this was the case. He told me that he felt he had ‘extra strength coming from his body’ and that he had ‘lost all sense of reality’. He said he was ‘acting bizarrely’. He told me earlier that day he had thrown a lighter at Mr Campbell and on he same day he recalled crawling round on the floor on his hands and knees because he felt that he was being watched through the lounge room window by friends of Mr Campbell. He said that as he was kicking Mr Campbell and there had been a ringing sensation in his head and a faint voice saying ‘Kill him, kill him’. Further inquiry revealed that there had been a deteriorating relationship with Mr Campbell for some weeks. Mr Mauk conceded that part of the reason for this was that he had started selling off some of Mr Campbell’s belongings (such as an antique clock) to pay for his drugs. Further inquiry about his drug use revealed that it was not merely marijuana that he was using but the anti Parkinsonian agent Artane (from which he got a ‘buzz’) and the minor tranquilliser Valium which he obtained by ‘doctor shopping’ and which he was taking at times up to 50 (5 mg) tablets a day! Regarding that latter preparation he told me that ‘it made me passive, tired, and I slept good’ but ‘I reckon it also made be get violent’.
Mr Mauk remained in the same flat as Mr Campbell’s body after the killing. He felt immediate remorse and perplexity at which (sic) he had done. The next day, he went across to a friend’s house (Darren Scott Lewis) and stayed there for a number of hours. Mr Lewis, in his own statement, gives a graphic account of Mr Mauk’s bizarre behaviour at that time. Eventually, Mr Lewis felt he could not cope with the behaviour any longer and drove Mr Mauk back to the flat where, to this recollection, Mr Mauk may have invited him in (but he refused).”
Both Dr O’Brien and Dr Raeside referred to the fact that the accused had smoked marijuana for many years. Dr O’Brien then summarised his views as to the accused’s mental state:
“I am satisfied that Mr Mauk suffers from chronic paranoid schizophrenia and this is exacerbated by his illicit drug taking. However, it is important to state that I do not believe his illness is merely a manifestation of illicit drug taking. The history/information that I have received would suggest that Mr Mauk has had both positive and negative symptoms of schizophrenia, namely disorganised thinking, vigilant and paranoid behaviour, poor hygiene and self neglect and that illicit drug use merely exacerbated his established illness. Although there have been periods when he has functioned at a higher level (usually when he is taking his prescribed medication, subject to active mental health supervision and taking fewer illicit drugs), I am satisfied that for the period preceding, and in and around the time of, the murder he was very unwell, that is actively psychotic.”
Both Dr Raeside and Dr O’Brien expressed firm disagreement with the view of a police doctor who examined the accused shortly after his arrest and could find no evidence of psychosis at the time of the examination.
The issue of mental incompetence is now regulated by the provisions in Part 8A of the Criminal Law Consolidation Act, 1935. “Mental impairment” is defined in s 269A as including -
“(a)   a mental illness; or
(b)   an intellectual disability; or
(c)   a disability or impairment of the mind resulting from senility.”
Section 269C 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.”
There is no doubt that at the time of the offence the accused was suffering from a mental impairment in the form of a mental illness. As I have pointed out, both psychiatrists are of the view that the accused was suffering from paranoid schizophrenia and that he was acutely psychotic at the time of the alleged offence. There is ample evidence based upon lay observations and medical history to support that diagnosis.
Dr Raeside then turned his attention in his report to the remaining criteria for a defence of mental incompetence under the Act. Whilst conceding that there was limited information about the accused’s understanding of the nature and quality of his actions at the time of the alleged offence it was Dr Raeside’s view that the accused probably did not have an adequate understanding of the nature and quality of these actions. He went on to conclude, however, that there was evidence which would suggest the accused had an impaired ability to reason with a moderate degree of sense and composure about the wrongfulness of his actions. This was supported by Dr O’Brien who said that he was of the view that by virtue of his illness the accused:
“Did not know that this act was wrong in the sense that he could not argue about the wrongfulness of it with a moderate degree of sense and composure. I have reached this conclusion because I believe that Mr Mauk was in such a state of psychotic disorganisation with respect to his thinking processes that he could not have properly appreciated what he was doing and the significance of it.”
It is clear that in expressing these opinions the psychiatrists had in mind the approach to determining wrongness which derives from Dixon J’s direction in R v Porter (1936) 55 CLR 182 at 189, 190:
“The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by ‘wrong’? What is meant by ‘wrong’ is wrong having regard to the everyday standards of reasonable people.
...
[Was he] disabled from knowing that it was a wrong act to commit in the sense that ordinary reasonable men understand right and wrong and [was he] disabled from considering with some degree of composure and reason what he was doing and its wrongness.”
Finally, Dr Raeside thought there was insufficient evidence to be conclusive about the accused’s ability to refrain from inflicting the injuries to his victim although he said that the evidence suggested an impaired ability to control his conduct based on his underlying psychosis. Dr O’Brien said he was unable to proffer an opinion about whether or not the accused could have controlled his behaviour although he said it would appear “that it had a ‘driven’ quality to it about which he may have had some ability to modify, particularly in the context of his account that he was subject to faint auditory hallucinations of a command variety at the material time”.
Both psychiatrists are of the view that the accused comes within the test for mental incompetence set out in the Act. Both Ms Follett and Mr Braithwaite have argued that I should accept that evidence.
Based on the material presented to me I find that at the time of the alleged offence the accused was suffering from a mental impairment and, in consequence of that impairment, he did not know that his conduct was wrong in the sense in which that concept is understood by the law. I accept the opinion that he was disabled by mental impairment from considering with some degree of composure and reason that what he was doing was wrong.
I find on the balance of probabilities that the accused was, at the time of the alleged offence, mentally incompetent to commit the offence.
Finally I turn to the orders which are available to me under s 269O of the Act. It is appropriate that I should make a supervision order. In that event, I am required to fix a limiting term equivalent to the period of imprisonment that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established. (s 269O(2)) It has been held that as there is a mandatory sentence of life imprisonment for murder the court is required in such cases to fix a limiting term extending over the accused’s life. (R v Williams (CCA 18 December 1997)). Accordingly I order that the accused be committed to detention under Part 8A of the Criminal Law Consolidation Act and that the limiting term be for the period of the accused’s life.

[2000] SASC 99

11 April 2000