R v McConnell - [2018] SADC 111

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCCONNELL
[2018] SADC 111
Reasons for Decision of Her Honour Judge McIntyre
9 November 2018
CRIMINAL LAW
Defendant charged with cultivating a large commercial quantity of a controlled plant for sale - defence of mental incompetence raised - election to have investigations into mental competence and elements of offences dealt with by a judge sitting alone - determination of mental competence under s269F of the Criminal Law Consolidation Act 1935 - whether defendant suffering from a mental impairment at time of offences - whether defendant knew that the conduct was wrong.
Held: On the balance of probabilities, the defendant was suffering from a mental impairment, paranoid schizophrenia, at the time of the offending and in consequence of that impairment, did not know that the conduct was wrong. Accordingly, the defendant was at the time of the alleged offence mentally incompetent to commit the offence
Criminal Law Consolidation Act 1935 s269WA,269F,269C, referred to.
R v W-B (1999) 73 SASR 45; R v Pangallo (1989) 51 SASR 254; R v Porter (1936) 55 CLR 182 at 189; Stapleton v R (1952) 86 CLR 358; R v Balaban [1953] SASR 282, considered.

R v MCCONNELL
[2018] SADC 111
Introduction

Matthew Dillon McConnell was charged on information in this court with one count of Cultivating a Large Commercial Quantity of a Controlled Plant For Sale, contrary to section 33B(1) of the Controlled Substances Act 1984 (the offence).
The particulars of the offence are as follows:
Matthew Dillon McConnell between the 9^th day of October 2016 and the 9^th day of November 2016 at Kadina, cultivated controlled plants, namely 100 cannabis plants, knowing or being reckless as to the fact they were controlled plants, and intending to sell the plants or their products or believing that another person intended to sell the plants or their products.
It was indicated by defence counsel that the defence of mental competence was to be raised. A report was ordered under section 269WA of the Criminal Law Consolidation Act 1935 (CLCA).
The police attended at Mr McConnell’s home address in Kadina on 9 November 2016, with a general search warrant. Mr McConnell presented himself at the front door of the premises. When questioned initially by police he told them that he had about 100 cannabis plants. Police searched the premises and found 100 immature cannabis plants growing outside in the rear yard. Mr McConnell was arrested and declined to answer questions during the police interview.
Mr McConnell, who was born on 17 July 1986, has a well-established history of paranoid schizophrenia. He has had documented psychotic episodes each of which responded well to anti-psychotic medication. His relapses have occurred on occasions when he has ceased taking anti-psychotic medication. There is little doubt that he was hospitalised and received treatment for psychotic episodes both before and after the charged offence. The issue for determination is whether he was mentally competent to commit the charged offence. For the reasons that follow I find that he was not.
The proceedings
The procedure for an investigation by the court into an accused’s mental competence to commit an offence is contained within Part 8A of the CLCA. The defendant elected to have the objective elements of the offences and the issue of mental competence dealt with by a judge sitting alone. The trial came on before me on 26 October 2018.
I determined to proceed under section 269F of the CLCA to deal with the trial of Mr McConnell’s mental competence to commit the offence. It does not appear in any event that the objective elements are in dispute.
Dr Jennings a consultant psychiatrist and the investigating police officer Brevet Sergeant Hansen gave evidence at the trial. In addition a number of exhibits were tendered; Dr Jennings’ two reports dated 21 December 2017 and 26 February 2018, a medical history from the Rural & Remote Mental Health Service relied upon by Dr Jennings in reaching his opinion, the first page of a folder of documents belonging to Mr McConnell and a disc with footage of Mr McConnell’s property, the cannabis crop, his arrest and his police interview.
Relevant statutory provisions
A person’s mental competence to commit an offence is to be presumed unless they are found to have been mentally incompetent to commit the offence. If the issue of mental competence is raised, the court must decide whether it has been established on the balance of probabilities that the accused was, at the time of the alleged offence, mentally incompetent to commit the offence. The onus for establishing this is on the accused.[1]
[1] R v W-B (1999) at 73 SASR 45.
Section 269C (1), provides:
269C—Mental competence
(1)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; that is, the person could not reason about whether the conduct, as perceived by reasonable people, is wrong; or
Note—
Paragraph (b) adopts the test as stated and excludes from consideration whether the defendant could reason with a moderate degree of sense and composure as set out in R v Porter (1936) 55 CLR 182.
(c) is totally unable to control the conduct.
Mental illness is defined:
Means a pathological infirmity of the mind (including a temporary one of short duration).
Mental impairment includes –
(a) A mental illness: or
(b)A intellectual disability: or
(c)A disability or impairment of the mind resulting from senility.
The Prosecution accepts that Mr McConnell has paranoid schizophrenia and therefore did not dispute that he may have been suffering from a mental impairment at the time of the offending. However, the prosecution contends that, taking all of the relevant evidence into account, that the court could not be satisfied on the balance of probabilities that Mr McConnell was unable to appreciate that his conduct in growing the cannabis was wrong.
Mr McConnell relies upon the opinion of Dr Ian Jennings a Consultant Psychiatrist whose expertise and experience were not challenged. Dr Jennings’ opinion, as expressed in his reports, was based upon the material he identified in his first report including his interview with Mr McConnell and the documented history of his psychiatric condition. Mr McConnell’s statements to Dr Jennings about his state of mind constitute original evidence and can be acted upon without the need for Mr McConnell to give evidence himself.[2] Mr McConnell’s statements to Dr Jennings are consistent with the history outlined in the medical history from the Rural & Remote Mental Health Service tendered in evidence.
[2] R. v Pangallo (1989) 51 SASR 254
Dr Jennings did not alter his opinion when he gave evidence and, in particular, after he had the opportunity to view the videos of Mr McConnell’s arrest and interview by police in court. In summary, Dr Jennings’ opinion is that, whilst Mr McConnell is fit to stand trial, he was mentally incompetent to commit the offence because at the time of the conduct giving rise to offence, he was suffering from a mental impairment, paranoid schizophrenia and in consequence of that impairment, did not know that the conduct was wrong.
I consider Dr Jennings to be a careful and cogent witness. I have no hesitation in accepting his evidence and opinions.
Did Mr McConnell know that the conduct is wrong?
The section 269C(1)(b) adopts the test set out in R v Porter[3], but excludes from that test whether Mr McConnell could reason with a moderate degree of sense and composure. The test is rather whether it is established on the evidence that Mr McConnell could not reason about whether the conduct, as perceived by reasonable people, is wrong.
[3] (1936) 55 CLR 182 at 189.
Dr Jennings says that, in his opinion, Mr McConnell was psychotic at the time of the offending. Mr McConnell’s mental health had been deteriorating over a period of time. He stopped working in April 2015 due to this worsening condition and his belief that the Government and media were persecuting him. In particular he thought that Government forces were sending him coded messages through various media outlets. He had a distressing physical condition of cystic lumps on his head which he perceived were caused by the Government as a means of controlling him and as part of the ongoing persecution. In consequence of this it appears that he started investigating cloning technology and the possibility of getting a new body overseas. He decided to grow the cannabis to fund this process. He told Dr Jennings that the Government “owed him” for what they had done to his head and that he could “get away with growing the marijuana”.[4] He told Dr Jennings that he bought seeds on the internet to sell marijuana to obtain money in order to get a new body.
[4] Dr Jennings’s report 21 December 2017
It is apparent from what Mr McConnell said to Dr Jennings that he knew that growing cannabis was illegal. This is not however the question - the question is whether he knew that it was wrong according to the standards of reasonable people not wrong as being contrary to the law.[5]
[5] Stapleton v. R (1952) 86 CLR 358; R. v Balaban [1953] SASR 282
It is clear that Mr McConnell took some care over a period of time to establish and cultivate his cannabis crop. The plants were nurtured from seeds. The plants appeared healthy and well cared for. They varied in height from about 15 to 20 centimetres. The cultivation method, whilst not overly sophisticated, showed a degree of care and attention. Each cannabis plant was in a plastic pot and watered by an irrigation system comprising black pipes running along the top of the plants. The pipes were connected to a hose, which led to a 200 litre plastic drum with an electric pump in place. There was chicken wire netting on top of the plants.
When asked about this, Dr Jennings said that this activity on the part of Mr McConnell was not inconsistent with his impairment. He said that Mr McConnell was capable of very practical actions and assessments but that this was standard for people with schizophrenia. That diagnosis did not mean that the person was lacking any particular practical ability or the intelligence to undertake certain activities.
Mr McConnell took some steps to conceal his cannabis plants. The plants were planted in the open in his back garden. The garden was fenced and he had taken steps to increase the height of the fence by the addition of shade cloth. He further took steps to protect his crop by placing CCTV cameras in his back garden. Whilst these attempts to conceal and protect the plants were rudimentary it was put by the prosecution that these attempts were suggestive of an understanding on the part of Mr McConnell that his actions were wrong. There is some force to that proposition.
Mr McConnell told Dr Jennings he took these steps principally to prevent the plants being stolen but also to prevent “people dobbing me in”. It is however also clear that Mr McConnell thought that the police knew what he was thinking and therefore knew that he had the plants. Mr McConnell further expressed the view to Dr Jennings that “It’s not like they (the police) were going to come and knock on my door”[6]. Dr Jennings noted that when the police did knock on his door Mr McConnell freely admitted having the cannabis plants in his garden. Dr Jennings described Mr McConnell’s demeanour as seen in the police videos as fairly calm even a bit fed up with the process. These observations are congruent with a belief that the police knew about the plants and that there was nothing wrong with him having them.
[6] Exhibit D2
When Mr McConnell was being informed of his rights by police it was clear that he understood them and was capable of exercising them. When informed of his right to a lawyer he requested that police find him “a good one”. It was put to Dr Jennings that this was indicative of Mr McConnell knowing how much trouble he was in. Dr Jennings did not accept this proposition and explained why that was the case in his evidence.
I accept Dr Jennings’ evidence as consistent with my own observations of the video. Mr McConnell can be seen to behave in a calm, almost nonchalant way as the police inspected his crop. He made no attempt to prevent the police from doing this. He did not seek to justify his crop. The request for a “good” lawyer came after Mr McConnell had been conveyed in handcuffs to the police station. At this point he was aware that some action was being taken. He did not seek to justify himself or his conduct. As Dr Jennings said in his evidence:
….I don’t know how he would have seen the arrest by police tying in with his delusional beliefs about the Australian Government affecting his whole life and wellbeing. Now I think it would be a perfectly natural, even if he believed that growing the marijuana was legal but he is taken away by the police and he had these delusional beliefs, he would still be concerned about his legal rights. I don’t think that contradicts his view that the marijuana was a legal crop. [7]
Some three months after his arrest Mr McConnell went to the police with a folder of what he described as evidence that he asked Brevet Sergeant Hansen to give to the detectives. Officer Hanson did not take the folder but took a copy of the first page which he attached to his report of Mr McConnell’s attendance.[8] This document is consistent with Mr McConnell’s delusional beliefs about the Australian Government as set out above. Dr Jennings gave evidence that Mr McConnell’s actions were consistent with Mr McConnell continuing to act on his delusions after his arrest specifically believing that he was innocent and had a case that he could present to the police. Dr Jennings further said that Mr McConnell’s failure to raise his belief that he was doing nothing wrong until a few months after his arrest was not inconsistent with his holding that belief at the time of the offending. He said that it is not uncommon for people to take some time to open up about their delusional beliefs because they feel people are acting against them and they have to have some level of trust. Further it is not possible to know how the police arresting Mr McConnell played into his delusional beliefs about persecution by the government.[9]
[7]    TX 18 - 19
[8]    Exhibit D6
[9]    TX 20
Conclusion
Mr McConnell has a well-documented mental illness; paranoid schizophrenia with associated psychotic episodes and delusional beliefs. He has had medical treatment for psychotic episodes both before and after the offending behaviour. Dr Jennings’ evidence is that people with delusional beliefs and chronic psychotic symptoms as a result of schizophrenia can live in our community and work on a day to day basis. They can do so without offending. They can appreciate the difference between right and wrong depending on their psychotic symptoms. The psychotic symptoms of Mr McConnell took the form of delusional beliefs about government control of his brain, the need to source and finance a new body and his immunity. In short he considered that whilst it might have been wrong for others to grow cannabis it was not wrong in all of the circumstances for him to do so. I find, on the balance of probabilities, that at the time of the offending Mr McConnell held these delusional beliefs and that he was mentally incompetent to commit the offence of cultivating a large commercial quantity of a controlled plant for sale.
I will record a finding to that effect under section 269FA(3)(a) of the CLCA.
I will now hear counsel as to the objective elements of the offence under section 269F B of the CLCA.