R v Milka - [2010] SASC 250

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v MILKA
Criminal Trial by Judge Alone
[2010] SASC 250
Judgment of The Honourable Justice Kelly
13 August 2010
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Accused pleaded not guilty to charges of causing harm with intent to cause harm and endangering life on the basis of mental incompetence to commit the offences - question of mental competence tried first under s 269F of the Criminal Law Consolidation Act 1935 (SA) - victim the accused's mother - where accused had a long history of drug use and admitted to drug use on the night before and morning before the incident - where accused suffered from seizures - whether accused suffered from mental illness - whether accused unable to control actions - whether any inability to control caused by mental illness.
Held - accused mentally competent to commit both offences - not shown on the balance of probabilities that accused unable to control his conduct - many factors contributed to incident - not shown on the balance of probabilities that accused unable to control conduct as a consequence of mental impairment.
Criminal Law Consolidation Act 1935 (SA) s 24(1), s 29(1), s 269A(1), s 269C, s 269D and s 269F, referred to.
R v Telford (2004) 89 SASR 352, considered.

R v MILKA
[2010] SASC 250
Criminal
KELLY J:
Introduction

The accused was originally charged with the crimes of attempted rape and attempted murder both allegedly committed on 16 July 2009 at Modbury Heights. Later, the Director of Public Prosecutions substituted those charges with a fresh information alleging two offences, the first, causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) and the second, a charge of endangering life contrary to s 29(1) of the Act.
On 1 February 2009 the accused pleaded guilty to both offences. On that day the matter was adjourned after the solicitor for the accused indicated that he wished to obtain a report in the matter for the sentencing submissions.
The matter next came on before another Judge of this Court on 9 March 2010. After a discussion between the Judge then presiding and counsel for the accused, the matter was further adjourned to enable the accused’s solicitor to obtain a further psychiatric report. The accused eventually applied before the same Judge to withdraw his pleas of guilty. That application was not opposed by the Director of Public Prosecutions and the pleas were formally withdrawn on 19 April 2010.
After the solicitor for the accused informed the Court that his client wished to raise a defence of mental incompetence the matter was listed for trial. The accused elected to be tried by judge alone and raised as a preliminary issue the question of his mental competence to commit the offences. Both counsel informed me at the outset that the objective elements of the offences would be admitted. I determined however to proceed first with the trial on the question of the accused’s mental competence to commit the offences under the provisions of s 269F of the Act.
At the outset of the hearing and without objection from counsel for the accused, the prosecutor tendered all of the relevant declarations.
The relevant statutory provisions
The test which governs the question of whether a person is mentally incompetent to commit an offence is set out in s 269C of the Act which provides:
269C—Mental competence
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.
A mental impairment for the purpose of the test is defined in s 269A(1) of the Act:
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 to mean “a pathological infirmity of the mind (including a temporary one of short duration)”.
Intoxication is defined to mean “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”.
By s 269D of the Act, there is a presumption that a person is mentally competent to commit an offence unless and until that presumption is displaced. The onus lies with an accused to establish on the balance of probabilities that he was not mentally competent at the time of the offence.
It was put on behalf of the accused that at the time of the alleged offences he was suffering from a mental impairment, in consequence of which he was unable to control his conduct and therefore he was mentally incompetent to commit the offences.
The basis for the submission that the accused’s mental impairment caused the inability to control his conduct is to be found in two of the expert reports tendered, namely the report of a neuropsychologist Mr Mark Reid and a psychologist Mr Richard Balfour. It will be necessary to deal with the expert reports in detail shortly.
The prosecution on the contrary argued that whether or not the accused suffered from a mental impairment, it was not that mental impairment but other factors which caused the accused to be unable to control his conduct. Moreover, it was submitted that the mental impairment alleged in any event did not cause a total inability to control the conduct but only a partial inability. It was therefore submitted that on either view of the matter, the accused could not satisfy the onus upon him to establish on the balance of probabilities that he was, at the time, mentally incompetent to commit the offences.
The factual background
Before dealing in detail with the evidence of the psychiatrists and psychologists, it is convenient to summarise the relevant facts. The accused Shane Milka is currently aged 26. Prior to the alleged offences he was living with his mother at Modbury Heights.
On the morning of 16 July 2009 some sort of altercation occurred between the accused and his mother. She said she was home in the middle of a telephone call when her son came up to her in the kitchen saying words to the effect of “I wanna have sex, I haven’t had it in a long time”. She replied “oh no, don’t start this again” and took an umbrella from nearby. When she started to hit the accused with the umbrella the accused then grabbed it out of her hands and threw it in the bin. He then grabbed his mother and started to remove her clothes by pulling her top up and her pants down. He then started to push her towards the couch by grabbing her arms and pushing her backwards towards the lounge. When she asked the accused why he was doing this he leaned over her and said “I am going to kill you”. The accused then picked a biro up from the coffee table and stabbed his mother through the neck with the biro. She grabbed the biro which snapped and threw it away. She then felt the accused applying pressure with one hand placed around her throat. She was telling him to stop and trying to peel his fingers off her throat but he continued to apply pressure until she lost consciousness. The next thing she recalls about the incident was the accused standing over her saying “I’ve brought you back, I’ve brought you back”. The accused had apparently performed CPR on her. The victim then got up and telephoned her daughter and told her to ring the police. She then locked herself in the toilet until the police arrived.
At the house shortly after the incident, when a police officer asked him what had happened, the accused told him that he had an argument with his mother and then it turned into a bit of a fight. He said they were arguing and then she hit him so he hit her back a few times. The accused claimed not to remember how many times he hit her in light of the fact that he had epilepsy and when he has a fit he does not remember much. He told the police that he and his mother have a lot of arguments. He also said that he had been on medication for his epilepsy and he had taken that medication in the morning.
He claimed not to remember anything else as the result of his epilepsy, however later that afternoon during an interview with the police at the Holden Hill Police Station, he told the police that he and his mother had a lot of arguments because she always antagonises him. He said that he could remember some of the events that morning and not others. His mother told him she was not feeling well and he remembered having an argument with her. He remembered her picking up an umbrella and hitting him with it. Although he initially claimed that he only remembered giving her CPR, midway through the interview he did appear to acknowledge that he had put a hand or hands around her throat. In the course of the same interview the accused told the police that he had consumed some amphetamine and had smoked three cones of marijuana the night before the incident, as well as another three cones of marijuana on the morning before the incident.
I have some reservations about the reliability of the accused’s answers to the police during this interview, which commenced at 2.07 pm on the afternoon of 16 July 2009. This is because the police officer continually questioned the accused in a way which suggested the answer and on the odd occasion when the accused appeared to be about to say something on his own volition, the police officer cut him off and went on with something else.
I have also viewed a videotape taken of the accused immediately after the police arrived at the premises on 16 July 2009, and listened to an audiotape of the interview in the afternoon at the Holden Hill Police Station; (It would appear that no videotape is available due to water damage while in storage at the Holden Hill Police Station). I have also had regard to the statements of other members of the accused’s family in addition to the victim’s statements.
Psychiatric evidence
Dr Craig Raeside was called by the prosecution. Dr Raeside is a qualified psychiatrist who became a member of the Royal Australian and New Zealand College of Psychiatrists in 1988. He has been practicing as a psychiatrist both in forensic psychiatry and private practice for many years.
Dr Raeside first examined and reported in relation to the accused on 19 August 2009. In that report, which was initially prepared for the purposes of a bail application on behalf of the accused, Dr Raeside suggested that a neuropsychological examination might be appropriate to explore the issue of the accused’s intellectual ability.
Dr Raeside formed the view after the initial examination of the accused that he did not display any psychotic features or psychotic thought disorder, however, he appeared to Dr Raeside to be of low intellectual ability possibly in the mild mental retardation range. In view of the accused’s reported epileptic seizures Dr Raeside considered further investigation was warranted. The accused himself told Dr Raeside that since stopping drugs he had not had any further seizures.
With regards to drug use, the accused told Dr Raeside that he had been a daily intravenous user of amphetamines up until the time when he was incarcerated on 16 July 2009. He reported that he had been in the habit of using Valium, Serepax and Panadeine Forte daily in addition to his ingestion of amphetamines and cannabis. He told Dr Raeside that his relationship with his mother, the victim in this matter, was frequently argumentative. He told Dr Raeside that his mother drinks excessively, that he wanted to move out from home but she did not want him to and that this led to frequent arguments, in the course of which he acknowledged some violence occurred between his mother and himself.
Dr Raeside had available to him, as did I, a series of reports prepared for the purpose of the Magistrates Court Diversion Program by various officers attached to that program. Those reports reveal that the accused first attended the Magistrates Court Diversion Program in January 2005. In an interview on 5 January 2005 the accused disclosed that he had commenced cannabis consumption at the age of 12, smoking on average a $25 bag per day. He told the author of the report that he had seizures for three years prior to 2005. The accused’s seizure history is documented in all of the Mental Health Diversion Program reports. In 2005 he was experiencing severe and frequent seizures. In fact it appears from those reports that the accused did not participate fully, or indeed at all, in the mental heath diversion program due to the frequency of the seizures.
That led to the accused’s referral to a neurologist Dr Graham Norton. I have also had the benefit of Dr Norton’s assessment of the accused. Dr Norton first saw the accused in early 2005. An Electroencephalogram (“EEG”) produced essentially benign results and did not show any significant focal epilepsy activity. In Dr Norton’s opinion the reported history of closed head injury was not significant to cause an epilepsy syndrome.
In a 24 September 2009 report requested by the accused’s solicitor for the purpose of these proceedings, Dr Norton stated:
I had several meetings with him [the accused] and on other occasions with his mother and his concerned siblings. It has always been my considered opinion that ongoing recreational use and probably abuse of marijuana and possibly amphetamine derivatives have been a major factor in his underlying seizure syndrome rather than postulating that he has a primary or idiopathic epilepsy diagnosis.
Later in that report Dr Norton said:
…It is my opinion and belief over many years of interacting with this young man, that his seizures sadly are the consequence of poor compliance, and use and abuse of recreational drugs. He has on occasions been prepared to admit that he has not complied with medication, giving as an excuse which is probably legitimate, that he has run out of money and could not afford the prescriptions, most of his finances it seems to me went towards his recreational drug use. On some occasions his mother has even suggested that he has stolen the money and things from the house to pay for his drug habit.
In relation therefore to your specific questions I believe that he has a ongoing seizure syndrome the consequence of his use and abuse of recreational drugs over many years. These typically often precipitated his admission to hospital when he has on occasions developed significant psychosis.
Specifically asked to express an opinion in relation to the charges then against the accused of attempted murder and rape, Dr Norton’s view was:
…such behaviour could not in a simplistic way, be attributed to epilepsy certainly during a seizure and it would be less likely to be the consequence of behavioural changes after the seizure.
Complex motor and volitional activity as described in the charges, are not usually attributed to either epilepsy or post-ictal features as post ictal behaviour is described as “not directed”.
Dr Norton concluded that the accused’s behaviour would rather be accounted for by his significant recreational drug use and abuse and other psychological factors addressed by a psychiatrist.
Dr Norton’s report of 24 September 2009 was followed by a further report from Dr Raeside on 16 November 2009. This report was a much more considered assessment than the previous one.
Dr Raeside concluded in this report that there was no clearly documented history to suggest any psychiatric disorder, in particular there was no strong evidence to suggest a psychotic illness such as Schizophrenia, although the accused’s family members had suggested disturbed thinking and possibly psychotic symptoms which in Dr Raeside’s opinion appear to be most likely related to drug abuse and possible drug withdrawal.
At that time Dr Raeside was of the view that there was currently no strong evidence to suggest that the accused was suffering from any mental impairment at the time of the alleged offence, with the possible exception of some type of drug related seizure activity or even a possible drug-induced psychosis.
After considering the whole of the material then available to Dr Raeside he concluded that the accused’s recollections and patchy memory of the events giving rise to the charges were inconsistent with a period of unconsciousness due to an epileptic seizure, or a period of disassociation. In Dr Raeside’s opinion they are much more likely to be consistent with the effects of drugs or intense anger.
Dr Raeside commented in relation to the sexually inappropriate behaviour of the accused, both earlier and during the incident in question, that the accused’s abuse of amphetamines might account for his reported high sex drive and the inappropriate sexual behaviour at times.
After noting the history of the long and complicated relationship between the accused and his mother, a relationship which he described as one of co‑dependence, Dr Raeside concluded that there was no evidence to suggest that a mental incompetence defence was available to the accused. Dr Raeside seems to have been influenced by the historical material which suggests that the accused’s behaviour becomes disturbed in conjunction with drug use and with the complicated relationship with his mother.
The accused entered pleas of guilty to both charges on 1 February 2010. Subsequently after discussion between the presiding judge and counsel for the accused, two further reports were obtained by the solicitor for the accused.
The first of these was the report of Mr Richard Balfour dated 5 March 2010. Mr Balfour is a psychologist who has been practicing as a forensic psychologist with both the government and private sectors for many years.
Like Dr Raeside, Mr Balfour was initially requested to provide a report to the Court for sentencing purposes following the accused’s pleas of guilty to the two charges of endangering life and causing harm. Mr Balfour took an extensive history from the accused including some history of the events giving rise to the charges.
Importantly, he noted that the accused told him he had been out with a male friend on the previous night and had purchased $100 worth of amphetamines in which he went halves with the other man. He then stayed up all night, returning to his mother’s house from his friend’s house at about 6.30 am in the morning. The accused said he had an argument with his mother about whether she would take him to his medical appointment that day but she refused to do so. According to the accused his mother said that she was tired. She had consumed alcohol. The accused told Mr Balfour he thought he was having a seizure of some kind at the time when he assaulted his mother.
At the time of his first report the opinion of Mr Balfour was:
At the time of the current offences, Mr Milka was sleep deprived. He was recovering from an amphetamine binge. He was feeling emotionally labile. His amphetamine usage would lead to feeling of irritability and also increased libido. His offending behaviour occurred very quickly after an explosive escalation following a pedestrian argument with his mother. I believe he would have been able to sufficiently appreciate the nature and quality of his actions, and their wrongfulness. Almost immediately after committing the offences, he quickly worked to resuscitate his mother. I do not believe he was acutely psychotic at the time of the current offences. Amphetamine is a drug which is well recognised for causing aggression and violent behaviour in people…
…Mr Milka’s offending behaviour is the actions of a man, with an intellectual disability of borderline severity, whose mental health has been destabilised by the effects of an intravenous amphetamine addiction and cannabis abuse, leading to explosive violent behaviour. Because of his low level of intelligence, he has poor insight into why he has offended.

Later in his report, before making recommendations for a structured rehabilitation program for the accused, Mr Balfour again noted:
…I believe his amphetamine addiction was the catalyst which resulted in his aggressive assault upon [his] mother…I believe that if he were to use amphetamine again he would present as a significant risk to his mother…
By these comments I understand Mr Balfour to say, in effect, that but for the ingestion of amphetamine the accused would not have attacked his mother.
After the events in court on 9 March 2010 Mr Balfour was asked to provide a further report. In his second report of 23 March 2010 Mr Balfour considered a number of specific issues about which he was questioned and concluded on the balance of probabilities that the accused was unable to control his conduct at the time of the offences. Mr Balfour therefore believed that the accused was entitled to the defence of mental incompetence under s 269 of the Act.
Mr Balfour was asked specifically to comment on the relationship between amphetamine addiction, prefrontal cortex damage (also known as frontal lobe damage or frontal dysexecutive syndrome), and a person’s ability to control conduct. After discussing frontal dysexecutive syndrome and its various causes, Mr Balfour expressed the opinion that chronic amphetamine use has numerous well documented deleterious effects including the development of a frontal dysexecutive syndrome. He pointed out that there is a body of research that indicates chronic amphetamine usage can permanently damage the prefrontal cortex leading to increased impulsivity. Mr Balfour preferred to describe the amphetamine addict as suffering from a defective impulse control rather than having developed a total loss of control.
In relation to the specific question as to whether the accused had such an abnormality, i.e., frontal dysexecutive syndrome, Mr Balfour went on to say:
To consider whether Mr Milka has suffered damage to his frontal cortex which has resulted in an inability to control his conduct I have considered the following three issues:
1. This is a difficult issue to reliably offer an opinion on because it requires differentiating between the disinhibitory effects of acute intoxication, the irritability associated with withdrawal (i.e., coming down), and an acquired brain injury caused by the chronic effects of amphetamine addiction. All three can overlap or co‑exist. The mental impairment law clearly states that intoxication alone is not considered a mental impairment.
2. Acute intoxication clearly affects the functioning of the frontal cortex and results in defective autoregulation leading to poor impulse control in normal people. However, this loss of control is transient and would resolve itself once the effects of acute intoxication have passed. I would not consider the effects of acute intoxication alone to be a mental impairment which has resulted in a person being unable to control their conduct for the purpose of satisfying s.269C.
3. The issue of pathological intoxication also needs to be considered. Pathological intoxications refers to the fact that individuals with an acquired brain injury are overly sensitive to the acute effects of intoxicating substances. There is a pathological synergistic interaction between their brain damage and the intoxicant which amplifies the level of poor impulse control and disinhibition. The end result is that the individual can display highly impulsive and disinhibitory behaviours despite having only consumed a low to moderate amount of intoxicant. Their neurophysiological response is greatly amplified.
In Mr Balfour’s opinion the accused’s offending behaviour is consistent with a catastrophic loss of impulse control and the known effects of a frontal dysexecutive syndrome. He went on to say:
I believe Mr Milka’s impulse control problems are multifactorial in origin. Consequently, I believe determining if he was unable to control his conduct at the time of the current offences is a challenging task.
In formulating an opinion on this issue, I have considered all of the information that has been made available to me regarding Mr Milka.
I believe that Mr Milka clearly has a mental impairment because he has both a borderline intellectual disability and an acquired brain injury caused by substance abuse. Both of these conditions are known to affect the frontal lobe functioning of the brain. These conditions have certainly impaired his impulse control.
On that basis he expressed the view that, on the balance of probabilities, the accused was unable to control his conduct at the time of the current offences. However, as I have noted earlier, I understand Mr Balfour to be saying here that the “catastrophic loss of impulse control” he referred to resulted from a number of factors, not just one. Those factors include the possibility of either acute or pathological intoxication. When Mr Balfour’s remarks are analysed there is very little difference between his conclusions and Dr Raeside’s as to the cause of the accused’s behaviour on the morning of 16 July 2009.
A further report dated 7 May 2010 was then obtained from a forensic neuropsychologist Mr Mark Reid. Mr Reid has practiced in the fields of clinical and forensic neuropsychology for many years. Mr Reid concluded:
From a legal definition perspective of mental incompetence defence, the question to myself arises as to whether or not Mr. Milka would have behaved in the way he did with regard to the current offences, without the added effect of acute amphetamine use or indeed, withdrawing from that acute episode of amphetamine use. If not, this would constitute the added effects of “intoxication” or a temporary disorder.
I believe that it is highly probable that at the time of these alleged offences, Mr. Milka was displaying uncontrolled, impulsive sexual and aggressive behaviour, consistent with the underlying brain dysfunction I have described earlier, possibly further contributed to by acute effects of amphetamine use, even relatively small amounts. Given his underlying brain condition, he would not require large amounts of amphetamine to lead to the type of behavioural dyscontrol which is often seen with amphetamine induced psychosis. Mr. Milka would only require a small amount of amphetamines to amplify the underlying difficulties with impulsivity and inhibitory dysregulation.
Mr Reid concluded that the accused did have an entitlement to the defence of mental incompetence.
In the light of the issues which arose out of the two further reports of both Mr Balfour and Mr Reid, Dr Raeside was asked to comment specifically on the same issues. In his final report of 13 May 2010 Dr Raeside expressed the view that whilst he was satisfied that the accused satisfied the criteria of having a mental impairment based on his cognitive impairment with frontal lobe brain damage, nevertheless he was not satisfied that the accused was unable to control his conduct. In Dr Raeside’s opinion, if he had experienced a total inability to control his conduct it might be expected that he would be acting in a markedly disinhibited and poorly controlled manner in numerous situations across a variety of different circumstances with different people. He noted that the current offences arose out of the long-standing and quite conflicted relationship with his mother, and that the attack itself appears to have arisen out of the provocation of yet a further argument with his mother.
Finally Dr Raeside opined:
Although opinions have been expressed that Mr Milka’s underlying frontal lobe brain damage would impair his ability to control his behaviour to some extent, in this particular case there is little evidence to suggest that Mr Milka was unable to control his conduct, apart from the seemingly explosive and extreme aggression itself. This is in part because of the difficulty in finding evidence that someone could not control their behaviour. It [is] not possible to find evidence that someone could not control their behaviour, rather one looks for evidence that they did control their behaviour. I have found this a particularly problematic limb of the mental incompetence test for this very reason. It is extremely difficult to distinguish between someone who is unable to control for various reasons and someone who chooses not to control because of other factors.
My second concern is of a more general nature. This relates to the prevalence of people with low intellectual ability, substance abuse, frontal lobe impairment (whether due to head injuries, substance abuse, or other factors), and antisocial personality disorders. Many of these people come before the courts for offences in which their behaviour has been poorly controlled and impulsive. Consequently, if the Court was to decide that in Mr Milka’s case he was mentally incompetent for the alleged offence, based on the combination of his frontal lobe cognitive impairment together with poor ability to control his behaviour, then I think it likely that this would open a way for numerous future defences of a similar nature. Whilst obviously this should not necessarily preclude Mr Milka in his own particular circumstances, I think it is a point worth considering.
Dr Raeside, Mr Balfour and Mr Reid were called to give oral evidence at the trial. I was greatly assisted by their opinions. The clinical opinions of the three experts differed only in one area, namely the issue whether the accused’s behaviour at the time of the offence demonstrated a total or partial loss of control. Both Mr Balfour and Mr Reid were of the view that there was a total loss of control. Dr Raeside was not persuaded that the behaviour of the accused was consistent with a total loss of control.
This is an important issue to resolve in determining whether the accused has discharged the onus upon him in this trial. Dr Raeside maintained the opinion expressed in his final report that the cause of the accused’s loss of control at the time of the offences, irrespective of whether the loss of control was total or partial, was caused by a number of factors not just one. He referred to the relationship with the accused’s mother which was dynamic and fluctuated from day to day depending on what happened. He noted that the aggression towards his mother occurred after an argument with her and after she had provoked him in his own mind by hitting him with the umbrella. He noted that given the accused’s cognitive impairment the effect of the other drugs including amphetamines or cannabis may be magnified even when consumed in relatively small amounts.
Without the benefit of a toxicology report, the opinion of each of the experts could only be estimates based on the reported history. On that reported history Dr Raeside concluded that the accused may well have been coming down from the amphetamine ingestion from the previous night, in which case he would be more irritable and likely to be aggressive. If the frontal lobe damage was the cause of the loss of control that morning, Dr Raeside expressed the opinion that there is no reason which would render him unable to control his behaviour in one moment of time but then able to control it in another moment of time. In other words if the behaviour was due to the acquired brain injury then he would be unable to control continuously, it would not fluctuate. That factor was an important one in Dr Raeside’s ultimate conclusion that the accused’s behaviour at the time of the offending was more likely to have been caused by drugs than the underlying frontal lobe brain damage.
Mr Balfour when cross‑examined specifically about the topic agreed with the following propositions:
Q     To that extent, therefore, you accept that, to some degree, during the course of this incident the accused had some control over what he was doing.
A     Yes.
Q     It is just a question of how much.
A     Yes.
Q     And his control would have been far greater had he not had $30 or $50 of amphetamine, some cones the night before and three cones earlier that day.
A     Yes, that is one element in the mix that would impair his control.
Mr Reid in cross‑examination was also asked to comment upon Dr Raeside’s opinion concerning the extent of the accused’s loss of control:
Q     Going finally to Dr Raeside’s report, what he is – I understand – saying is that the accused had some control, the extent of it is difficult to determine but to some extent he had control, particularly evidenced by his goal-driven activity. Do you agree with that or not.
A     Yes, but I would like to qualify that a little bit if I may?
Q     Please.
A     I would perceive that during the argument with his mother he became angry. He then developed some goal-directed behaviour, as you describe it. In other words, he wanted to have an outlet for that anger and aggression towards his mother, which he did. On previous occasions he has been able to perhaps desist at that stage, but on this occasion he couldn’t or didn’t. Whether he could or whether he chose not to is something we cannot answer because we do not know, it is a judgment. But, again, it comes back to those variables. But he may well have started out with goal-directed behaviour, then with the increased anger that emerged or grew, there may have been further disinhibiting effects on the frontal lobe of the brain because of the natural secretion of the neural transmitters that occur in those situations. Mr Milka’s threshold, if you like, for developing that situation in his brain, I believe, is likely to be really quite low because of his underlying brain damage, including the antisocial personality disorder and we know that people who have antisocial personality disorders have similar types of changes in their brain, we know that now.
It can be seen from the foregoing passages in the evidence of both Mr Balfour and Mr Reid that at the end of their evidence, neither witness appears to have unequivocally stated that the accused’s conduct exhibited a total loss of control at the relevant time. In addition, Mr Balfour and Mr Reid in both their reports and oral evidence appear to have acknowledged that there may have been other factors at work in addition to the frontal lobe damage identified. Each expert appears to have had a different view of the legal requirements in relation to s 269C of the Act, however that is of no real moment as I have had no difficulty in distinguishing between the clinical opinion of each of the experts and their understanding of the legal requirements.
Discussion and conclusion
It can be seen from the foregoing that there are really two issues in real contention. The first is whether the accused at the time of the offending was unable to control his conduct. The second is whether, if he was unable to control his conduct, that inability was in consequence of a mental impairment.
To answer those questions it is necessary to determine, if possible, what actually happened on 16 July 2009, in particular what the accused did and said in the period leading up to the assault on his mother as well as the background leading up to 16 July 2009. The issue of the accused’s ingestion of illicit drugs is one issue which needs to be considered. A complicating factor is that there is really no reliable evidence of how many drugs the accused consumed in the 24 hour period before the incident, or what effect, if any, they had on his behaviour that morning. The accused admitted to police to ingesting a quantity of amphetamine intravenously the night before the incident and smoking three cones of cannabis the evening before and again on the morning of the incident.
However the accused is not necessarily the most reliable historian as to the quantity of drugs actually consumed. As Dr Raeside pointed out a drug addict is almost invariably unreliable about the quantity of drug consumed and in the main will tend to understate it.
There is however a well documented history of the accused’s abuse of illicit drugs, mainly cannabis and amphetamines. The effects of amphetamines as the experts pointed out are also well documented. A person who habitually abuses amphetamine can exhibit a high sexual drive and inappropriate sexual behaviour together with aggression. The difficulty in the context of this case is that some of these behaviours are also exhibited by people who suffer from frontal lobe brain damage. The accused is a person who falls into both categories.
All three experts ultimately agreed that the accused suffers from a mental impairment. Specifically each expert agreed that the accused does have a cognitive impairment together with frontal lobe brain damage which in itself is sufficient to constitute a mental impairment for the purpose of s 269C of the Act. There was also agreement that the accused, by reason of his well documented history, suffers an antisocial mixed personality disorder. That is not itself sufficient to constitute a mental impairment for the purpose of the Act, however it was undoubtedly one of the factors relevant to the cause of the accused’s behaviour when he assaulted his mother on 16 July 2009. All three experts agreed also that a person with the accused’s cognitive impairment and frontal lobe damage would be particularly sensitive to ingestion of drugs and/or alcohol and therefore would need to refrain totally from the consumption of either drugs or alcohol. There was also no disagreement between the three experts that the ingestion of amphetamines and/or cannabis can exacerbate impulsive and aggressive behaviours in persons suffering from borderline intellectual disability with frontal lobe damage.
The question which arises for me, bearing in mind the onus on the accused, is whether I am satisfied on the balance of probabilities, whether the accused was unable to control the conduct resulting in the offences against his mother, and whether if he was unable to control his conduct, that inability was in consequence of the mental impairment.
Having regard to the material before me, including the well documented history of amphetamine and cannabis abuse, I consider it highly probable that the accused’s conduct at the time of the offences, was caused by anger and frustration with his mother in the context of an argument which occurred after his mother repelled inappropriate sexual advances by the accused. I cannot determine to what extent the accused was affected by amphetamines/cannabis, however I am satisfied that he was affected at the time or was coming down after his ingestion of amphetamines and cannabis the night before and the morning of the incident. I consider it was highly probable that the accused, in an irritable state caused by loss of sleep, itself the result of the ingestion of illicit drugs, provoked yet another argument with his mother in the course of which he lost his temper, albeit temporarily, after his mother repelled his sexual advances.
Given the actions of the accused during the incident, I agree with Dr Raeside’s assessment that the accused exhibited behaviour consistent with him having at least partial control of his actions. In this regard I note the incident began when the accused made inappropriate sexual advances to his mother. He became aggressive in response to being hit by his mother with the umbrella. At that point he then said he intended to kill her and grabbed her around the throat and commenced to strangle her. He desisted at the point when she lost consciousness.
Moreover he appears to have at least some recall of the incident. Notwithstanding the obvious deficiencies in the record of interview between the police officers Moon and Middleton and the accused on the afternoon of 16 July 2009, I am satisfied that the accused there demonstrated that he did have some recall of the incident.
He later told Dr Raeside who interviewed him in August and again in November 2009 about further details of the incident. To the extent that he disclosed the same detail in his interview with the police on the day of the incident, I consider I can more confidently rely on what the accused told Dr Raeside as an accurate account of what the accused in fact remembered about the incident. That recall, as Dr Raeside pointed out, is inconsistent with the accused having had any seizure or engaging in any robotic unwilled action. It is also inconsistent with an inability on the part of the accused to control his conduct.

It is significant that when the police first began to question the accused and asked him how the incident evolved he immediately referred to the fact that his mother and he were always arguing about his desire to move out.
Moreover, there is considerable basis to be found in the history of his relationship with his mother why an argument of this severity would seemingly erupt out of nowhere.
The accused was tired that morning, he had not slept the night before. On any view of the matter he was in the process of coming down from amphetamine and cannabis ingestion. He was in a relationship with his mother which each of the experts described as one of co-dependence exacerbated by frequent conflicts. Therefore I consider when the incident is seen in its true context there is nothing bizarre about the accused’s actions.
As Dr Raeside said, it is his common experience in the criminal justice system to see mothers the victims of aggression from adult sons with various disabilities that have put them in that sort of co-dependent relationship, regardless of other issues which might be present.
The accused’s inappropriate request to his mother for sex might have been the consequence of his heightened sexual drive as a result of ingestion of drugs or as a result of his mental impairment, or both. I simply cannot say. However, I find that there is a strong possibility that the accused simply lost his temper after his mother hit him with the umbrella.
In these circumstances I am not persuaded that the accused’s conduct on the morning of 16 July 2009 constituting the two offences against his mother was in consequence of the mental impairment he suffered. There are simply too many other external factors which might have contributed to such inappropriate behaviour. In light of the history of the accused’s previous inappropriate sexual and aggressive behaviour to other members of his family which seems to have occurred in the context of his drug taking, it is my view that no‑one could ever say whether the accused’s behaviour was account of his disabilities or on account of his drug taking. What I do find is that but for the consumption of amphetamines and other illicit drugs on that evening, the accused is unlikely to have behaved in the way he did in committing the two offences that morning.
It follows from that, I am not satisfied on the balance of probabilities that the accused was unable to control his conduct as a consequence of his mental impairment.
Furthermore I do not consider that the accused’s behaviour during the commission of the two offences is consistent with an inability to control his conduct within the meaning of s 269C of the Act. That is the final issue which needs to be addressed in light of the disagreement between the experts as to whether the conduct of the accused in relation to his mother at the time of the offences, demonstrated a complete or partial inability to control the conduct.
In my view the phrase “is unable to control the conduct” means exactly what it says. A person is either able to control his conduct or he is not. In this respect I agree with the observations of Perry J in R v Telford (2004) 89 SASR 352 at 363 [101] when he said the word "unable" admits of no qualification.
A person who has even some control of the relevant conduct is not a person in my view, who is unable to control his conduct in the relevant legal sense. For the reasons I have already explained I am of the view that the accused’s behaviour during the incident demonstrates he had, at the very least, some control of his conduct during the relevant time. He told his mother he wanted sex and then proceeded to try and remove her clothes. She fought him off. He then said he wanted to kill her, pushed her down, stabbed her with a pen and commenced to strangle her. He desisted when she turned blue as she lost consciousness. He then performed CPR until she regained consciousness. There is nothing in his behaviour subsequent to that to show that he was not in control of his conduct.
For these reasons I am not persuaded that the accused has satisfied the onus on him under s 269C of the Act. On the contrary I am positively satisfied that the accused was able to some degree to control the relevant conduct when committing the offences against his mother.
I find therefore that he was mentally competent to commit both offences.