R v Monydeng (NO. 2) - [2023] SADC 16

District Court of South Australia
(Criminal)
R v MONYDENG (NO. 2)
Criminal Trial by Judge Alone
[2023] SADC 16
Reasons for Decision of his Honour Judge Stretton
17 February 2023
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - DETERMINATION OF ISSUES
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
The objective elements of the charges against Mr Monydeng were proven beyond reasonable doubt in a previous trial; R v Monydeng [2022] SADC 20. The matter then proceeded to a contested trial of the accused’s competency to commit the offences. The accused maintained his election for trial by judge alone. The accused maintained he was not competent to commit the crimes by reason of an acute psychotic relapse of his schizophrenia.
Held:
The section 269D statutory presumption of competence to commit the crimes has not been displaced on the balance of probabilities. The accused was competent to commit the crimes.
Criminal Law Consolidation Act 1935 (SA) Part 8A, ss 267A, 268, 269A, 269C, 269D, 269G, referred to.
R v Monydeng [2022] SADC 20, considered.

R v MONYDENG (NO. 2)
[2023] SADC 16
Background

The accused, Monydeng Monydeng, is charged with eight offences alleged to have been committed on 25 March 2020. It is alleged that between about 9.30am and 9.45am at Mile End and Torrensville, the accused offended against five separate women in a variety of ways before being apprehended and arrested by police at about 10.00am.
As a result of pre-trial agreement and the orders of prior judicial officers, the trial proceeded pursuant to Part 8A of the Criminal Law Consolidation Act (‘the Act’) commencing with a trial of the objective elements of the offence. Whilst an accused has a right to trial of the objective elements by jury in these circumstances,[1] the defence elected to have the matter dealt with by a judge sitting alone.
[1] Section 269B, Criminal Law Consolidation Act 1935.
On 25 February 2022 the court delivered judgment finding the objective elements of the offending proven beyond reasonable doubt.[2]
[2] R v Monydeng [2022] SADC 20.
Trial of the accused’s mental competence to commit the offences
Section 269G of the Act provides that subsequent to a finding that the objective elements of an offence are established the court must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant’s mental competence to commit the offence.
Section 269G (3) provides that at the conclusion of the trial of the defendant’s mental competence the court must decide whether it has been established on the balance of probabilities that the defendant was at the time of the alleged offending mentally incompetent to commit the offence, and if not must record a finding that the presumption of mental competence has not been displaced and proceed with the trial in the normal way.
Procedural Note
As the matter is a trial by judge alone, the court has not reviewed any part of the substantive or procedural history of the matter nor any declarations, transcript, or other material prior to the hearing, beyond the evidence called at the earlier trial of the objective elements of the offending, the factual findings made therein, and the further evidence led by counsel in the trial of the accused’s mental competence.
The trial of mental competence proceeded in the manner agreed between counsel.
Presumption of Mental Competence
A person’s mental competence to commit an offence is to be presumed unless the person is found on an investigation under Division 2 of Part 8A of the Act, to have been mentally incompetent to commit the offence.[3]
[3] Section 269D, Criminal Law Consolidation Act 1935.
The test for mental competence
Section 269A(2) provides that for the purposes of Part 8A the question of whether a person was mentally competent to commit a crime is a question of fact.
There are aspects of this matter of some complexity. As became apparent, the accused performed a series of actions over a period against a series of victims. He has a long history of mental illness. Subsequent toxicology indicates that he was very substantially under the effect of illicit drugs at the time. His intoxication at the time of the offending is relevant to the issue of his mental competence.
In these circumstances a number of matters must be considered. The primary test as to whether a person was mentally competent to commit an offence is set out in section 269C of the Act. It 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
(c)     is totally unable to control the conduct.
(2)If, on an investigation under this Division, a person is found to be mentally incompetent to commit an offence and the trial judge is satisfied, on the balance of probabilities, that the mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self‑induced intoxication (whether the intoxication occurred at the time of the relevant conduct or at any other time before the relevant conduct), the person may not be dealt with under this Part but may (if appropriate) be dealt with under Part 8.
Section 269A defines intoxication for the purposes of Part 8A as ‘a temporary disorder, abnormality or impairment of the mind that results from the consumption or administration of a drug’. Section 269A(2a) provides that intoxication resulting from the recreational use of a drug is to be regarded as self-induced.
Section 269A provides that consumption of a drug is to be regarded for the purposes of Part 8A as recreational use of the drug unless (a) the drug is administered against the will, or without the knowledge, of the person who consumes it; (b) the consumption occurs accidentally; (c) the person who consumes the drug does so under duress, or as a result of fraud or reasonable mistake; or (d) the consumption is therapeutic. Consumption of a drug is ‘therapeutic’ only if it is prescribed by a medical practitioner and used in accordance with the medical practitioner’s directions, or it is available without prescription from a registered pharmacist and consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer’s instructions.
As set out above in section 269C(2) if, on an investigation under Division 2 of Part 8A into a person’s mental competence to commit and offence, a person is found to be mentally incompetent to commit the offence and the court is satisfied, on the balance of probabilities, that the mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self‑induced intoxication (whether the intoxication occurred at the time of the relevant conduct or at any other time before the relevant conduct), the person may not be dealt with under Part 8A but may (if appropriate) be dealt with under Part 8.
Part 8 of the Act, ‘Intoxication’, deals with the issue of intoxication of an alleged offender in defined circumstances.
Section 267A defines intoxication for the purposes of Part 8 in similar terms as in Part 8A: as ‘a temporary disorder, abnormality or impairment of the mind that results from the consumption or administration of a drug’.
Section 268 provides that the mental element of an offence is to be presumed in certain circumstances. It provides:
268—Mental element of offence to be presumed in certain cases
(1)     If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if it is established that the defendant—
(a)formed an intention to commit the offence before becoming intoxicated; and
(b)consumed intoxicants in order to strengthen his or her resolve to commit the offence.
(2)     If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if the defendant would, if his or her conduct had been voluntary and intended, have been guilty of the offence.
(3)     However, subsection (2) does not extend to—
(a)a case in which it is necessary to establish that the defendant foresaw the consequences of his or her conduct; or
(b)except where the alleged offence is an offence against section 48 (rape)—a case in which it is necessary to establish that the defendant was aware of the circumstances surrounding his or her conduct.
Example—
A, whose consciousness is impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, beats B up and B dies of the injuries. In this case, A could be convicted of manslaughter but not of murder (because A is taken to have intended to do the act that results in death but not the death).
(4)     …    (.. where the victim dies)
(5)     …    (.. where the victim suffers serious harm)
(6)     A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of the alleged offence if it is impaired to the extent necessary at common law for an acquittal by reason only of the defendant's intoxication.
The Evidence
The accused did not give evidence. He was entitled not to do so, and in exercising that important right available to anyone charged with a criminal offence, no adverse inference whatsoever arises.
Three psychiatrists were called during the trial of the accused’s mental competence to commit the charged offences. Each agreed that the accused probably knew the nature and quality of his conduct and was not totally unable to control it.
Where they differed was in their respective assessment of whether on the balance of probabilities the accused knew that the conduct was wrong; that is, in the words of section 269C (1)(b) the accused could not reason about whether the conduct, as perceived by reasonable people, was wrong.
Accordingly, it was common ground that a close assessment of what the accused did is very important in determining whether on the balance of probabilities, the accused knew that what he was doing was wrong.
The evidence as to the accused’s actions was called in the earlier trial of the objective elements of the offences. Given its central importance to the assessment of that issue, the court repeats the evidence as earlier summarised.
The court refers to the Information and particulars set out at paragraph 6 in R v Monydeng [2022] SADC 20 without repeating them in full.
The evidence in relation to Counts 2, 6, 7 and 8 was not contested at trial and accordingly dealt with in less detail than Counts 1 and 3-5. The only aspect of the evidence that was contested was not the observed conduct, rather simply whether the person observed was the accused. For the reasons explained in the earlier judgment, it was the accused. The following facts are proven beyond reasonable doubt.
Given the totality of the evidence, including the locations of the events in question, the times of those events and the consequent route of the accused, the court is satisfied beyond reasonable doubt they occurred in the order reflected in the information.
The first charged offence was Count 1, alleged property damage to a vehicle driven by a Ms Carli.
Ms Carli gave evidence that between 9.00 and 10.00am on 25 March 2020, she was returning to her office on South Road and was driving along Claremont Street, Mile End. As she crossed Ballara Street, Mile End, she saw a male in the middle of the road who remained there as she approached in her vehicle. Accordingly, Ms Carli tooted her horn whereupon the male turned around, looked at her and simply continued walking but as he did so was trying the door handles on the cars parked on either side of the road. He then turned, stared at Ms Carli, and stomped with his foot on the front bonnet of Ms Carli’s car causing her to accelerate and the male to get out of her way. As she drove by, the male kicked the rear passenger side door of her car, seriously damaging it, denting it, and chipping the paint.
Ms Carli described the attacker as a slim African male around six foot tall, wearing a blue hooded jumper pulled low over his forehead, and grey jeans, aged in his late teens or early twenties. There were two other males in the vicinity, one behind the attacker on the left-hand side of the road, the other in front of the attacker on the right-hand side of the road. She could not describe those persons, other than they had hooded jumpers pulled over their heads.
The damage to Ms Carli’s vehicle was $2,615.24.
That location is a very short distance from the King Street location where at about 9.30am the victim in relation to Count 2, a Ms Walker, was attacked by the accused.
At around 9.30am on the day in question, Ms Walker parked her car on King Street, Mile End behind her father’s van as they were both working at that address on that day. As she parked, she saw the accused and another male walk from Claremont Street across King Street and walk east along the northern footpath past her father’s van. When the accused was about in line with her vehicle, she got out and walked towards the back of the car, locking it, and placed her keys in her bag. As she got to the boot of her vehicle, the accused jumped from the gutter area and fly-kicked her with his right foot, striking her chest with some force, and knocking her flat on her back in the street.
She described the accused as of African appearance, aged about 20, with a slim build, approximately six foot two in height, wearing a light blue hooded long sleeved jacket with white coloured shoes. She described the second male as of short, stubby build with curly hair, and although she could not recall exactly what he was wearing, he had a red colour on him somewhere. As a result of the assault her chest was very sore, together with her lower back. At a later time, Ms Walker identified the accused by way of a standard photo identification procedure.
The next event was an attack on a Ms Baxter, represented by Count 3 in the Information of robbery and in the alternative, Counts 4 and 5, of assault and theft.
Ms Baxter was walking along Cumming Street on the morning in question, the street adjacent to the King Street address where Ms Walker had been assaulted and two streets from the Claremont Street location of the attack on Ms Carli.
Ms Baxter turned the corner onto Victoria Street when the accused, whom she described as being a tall, skinny, dark, African, wearing a grey or blue hoodie with what she perceived as grey or blue tracksuit pants, approached her quickly saying something she could not interpret. The male then did a ‘sweep kick’ connecting with the back of her right calf just below the knee causing her to fall on her back. The male then positioned himself on top of her and struck down at her with his elbow, hitting her in the middle of the chest. Ms Baxter tried to kick and punch to defend herself.
The male grabbed at Ms Baxter’s belt, was pulling at her stomach area and her jacket, then Ms Baxter saw her phone and her cards were on the road. Whilst still positioned on top of her, the male took her phone and her cards and went through the other items that had come out of her pocket during the course of the attack. Ms Baxter said the male grabbed her belongings, got off her, crossed the road and met up with another male wearing a hoodie who put his arms up towards him in a manner in which she described ‘I don’t know what you are talking about or, I don’t know you or yeah I’m your brother I don’t know’[4] type of way. Then they walked off, but not together.
[4] T61 – 25 January 2022.
Ms Baxter said that she later identified a Metro card and Woolworths card with her names on them, both seized from the accused. She said the other male was dark, but shorter with curly hair and not wearing a hoodie.
The assault on Ms Baxter was witnessed by Natasha Inglis, a resident in a house situated on the corner of Cumming Street and Victoria Street, Mile End. On the day in question, to her recollection between 8.00 or 9.00am, she was in her bedroom compiling a job application when she heard a car door shut outside. That caused her to look out her window overlooking Victoria Street, Mile End.
Ms Inglis recognised a man she had seen the day prior at around 4.00 to 5.00pm, on this occasion walking in a southerly direction along Victoria Street. It was the accused. Ms Inglis saw Ms Baxter walking from the southern side of Victoria Street, heading in a northerly direction towards Henley Beach Road. Ms Inglis saw the accused and Ms Baxter walk towards each other eventually meeting. She said Ms Baxter went to step around the male however the male turned and kicked her with a roundhouse kick, contacting Ms Baxter’s lower leg causing her to fall to the ground and onto the road.
Ms Inglis turned back into her room to get her mobile phone for the purposes of recording what she was seeing but when she returned to the window, the female was standing and yelling ‘give me back my phone’ and the accused was nowhere to be seen.
Count 6 involved an assault on a Ms Will-Jones. Ms Will-Jones was parking her boyfriend’s car in the Centrelink carpark on the corner of Henley Beach Road and Wainhouse Street at about 9.30am.
Tendered video footage shows that the accused had just attempted to queue jump those lined up outside the Centrelink office but had been refused entry by security guards, whereupon the accused loitered a few metres from the entrance.
As Ms Will-Jones exited her vehicle, she saw a male she described as Sudanese, about six foot two inches tall with slim build and short black hair wearing a grey or blue jumper, staring at her. It is not disputed that was the accused.
The accused then ran straight towards Ms Will-Jones, lifted his right leg, appearing to be about to kick her but stopped himself mid-motion, standing close in front of her effectively pinning her against the car.[5] CCTV video footage of the incident shows these events and depicts the accused apparently going to fly-kick Ms Will-Jones full to the middle of the chest but stopping his foot just centimetres from the upper middle part of her chest. The accused swung his arms near Ms Will-Jones head whereupon Ms Will-Jones ran into the Centrelink building to escape.
[5] T21.
As she entered the building, security staff directed her attention back to her vehicle where she saw the accused leaning his back on the driver’s side door of the car with his arms over the roof. A subsequent examination of the vehicle revealed no damage.
The assault on Ms Will-Jones was also witnessed by Nicola Dimasi, the Centrelink security guard who had just prior to the interaction with Ms Will-Jones observed the accused trying to jump the queue into Centrelink and had told the accused he needed to line up. Upon being told that, the accused had remonstrated and then walked off. A few minutes later a distressed Ms Will-Jones approached Mr Dimasi and pointed out the accused standing next to her vehicle before he was observed slamming the car door shut and walking off towards Henley Beach Road.

Tendered CCTV footage shows all of this and shows the accused wearing a blue hooded jumper and light blue denim jeans.[6] He appears tall and of African appearance.
[6] Exhibit P15.
Counts 7 and 8 involved an attack on a Ms Caristo.
Ms Caristo attended the same Centrelink at Torrensville at about 9.30am. She noticed the line at the front entrance was long and as a result decided to walk home. Ms Caristo walked towards an electrical store opposite Centrelink and soon noticed that someone was walking closely behind her. She moved to the side to enable that person to pass, however that person moved with her such that they remained directly behind her. Accordingly, she turned around and saw the accused standing straight in front of her close to her face. Ms Caristo was concerned and said, ‘the police are in there’ to which the accused responded, ‘I am the police’.[7]
[7] Affidavit of C Caristo dated 04/04/2020.
The accused grabbed Ms Caristo around the neck with both hands, pulled her around and threw her to the ground. She landed on her stomach. At this, Ms Caristo started screaming ‘help, help, someone’s kill me’.[8] She said she was petrified and thought she was going to die. The accused put his hand over Ms Caristo’s mouth to stop her screaming and grabbed her hair from behind and smashed her face into the pavement two to three times. Ms Caristo kept yelling for help.
[8] Affidavit of C Caristo dated 04/04/2020.
Ms Caristo could then feel the accused sitting on her pelvis area moving up and down in a backwards and forwards motion as if, in Ms Caristo’s impression, he was trying to rape her. The accused reached around and placed one of his hands between her legs and started to touch her genital area over the top of her clothes.
Video and the evidence of other witnesses indicate that members of the public screamed at the accused to stop, whereupon the accused got off Ms Caristo and ran away. Tendered CCTV footage from an adjacent shop shows the accused walking quickly and breaking into a run past that shop, shortly after members of the public could be heard screaming.[9]
[9] Exhibit P15.
Ms Caristo was left screaming, hysterical, crying and in pain.
These events were witnessed by members of the public. They saw the accused lying on top of Ms Caristo, moving his hips back and forwards, up and down from behind Ms Caristo, as if to have sex with her.
One of the witnesses chased the accused along Henley Beach Road and through several car parks to Ebor Avenue where the accused was apprehended by police. The accused was, at the time of his apprehension, in possession of a black hooded jumper, 16 Metro cards - one bearing Ms Baxter’s signature, and a Woolworths Rewards card also bearing Ms Baxter’s name.[10]
[10] T24.
The prosecution’s tendered documents included a map of the area indicating each location where an attack occurred, and noted that a person walking through each location starting at Claremont Street and ending up at Ebor Avenue would travel 2.2 kilometres, and that at an average walking speed this would take some 27 minutes.
Police were tasked to search the area around the Centrelink premises and at about 9.54am observed the accused standing on the northern side of Henley Beach Road outside the Royal Hotel drive-through. On approach by of the police, the accused ran to the rear of the car park, then down Norma Street to Ebor Avenue. Police overtook the accused who then stopped running and stood at the intersection of Norma Street and Henley Beach Road, whereupon he was apprehended by police.
Medical Evidence
Three forensic psychiatrists gave evidence: Dr Craig Raeside, Dr William Brereton and Dr Hoa Nguyen. Each was well qualified in the field of forensic psychiatry and had considerable experience. The court considers each an expert in the field. Each provided at least one written assessment of the accused, and gave supplementary oral evidence on oath.
Dr Raeside initially clinically assessed the accused when he was an inpatient in James Nash House in June 2017, and again at the Adelaide Remand Centre in April 2020.
Dr Raeside assessed the accused via audio-visual link to Yatala Labour Prison at the request of his lawyers for the purposes of this matter on 11 March 2021.
Dr Raeside reported that at the time of his examination the accused did not display any psychotic features. Dr Raeside reported that the accused began to tire and lose concentration after about 20 minutes but continued to engage, although saying more frequently that he could not recall various matters in the past.[11]
[11] Report of Dr Raeside dated 11 March 2021.
Dr Raeside reported that available documentation showed the accused had first been diagnosed with Schizophrenia when he was hospitalised in 2014 after a psychotic episode in the context of cannabis and amphetamine use. He was again hospitalised in 2015 with a relapse of schizophrenia after failing to take his medication and while using illicit drugs. He was admitted to James Nash House for an extended period from June 2017 to January 2018 after having responded/engaged poorly under a Community Treatment Order. There was a further admission, this time to the RAH, in June 2019 with an acute relapse of Schizophrenia ‘following a similar pattern of non-engagement and non-compliance with medication.’
Dr Raeside reported that the accused’s most recent psychiatric admission prior to the events to which this case relate was an admission to the RAH from 8 February 2020 to 14 February 2020:
On admission he was clearly psychotic and could not tolerate any level of questioning around his mental health or medications and quickly became agitated as soon as these questions were asked. He was also paranoid, asking, “Why are you trying to kill me?”. Although he did not appear to be hallucinating, he was very agitated and his insight and judgement were impaired, with him not accepting his diagnosis or need for treatment.
Again, Mr Monydeng became settled in the closed psychiatric unit although he remained psychotic with thought disorder and perplexity. After being transferred to the open ward he remained hypervigilant and suspicious of staff and quickly absconded on 14/2/20.^[12]
[12] Report of Dr Raeside dated 11 March 2021, p 6.
Dr Raeside reported that the accused began to get into trouble with the police and spend time in juvenile custody from year 8 at school. His family variously would not have him live with them due to his disruptive behaviour, and when unwell had a history of aggressive behaviour. The Community Mental Health team would require a regime of police attendance with every home contact to administer medication because of the accused’s continued aggressive behaviour towards them.[13]
[13] Report of Dr Raeside dated 11 March 2021, p 8.
Dr Raeside reviewed the police evidence of the accused’s arrest and interview on the current charges, including video. Dr Raeside’s impression of that evidence was that the accused’s presentation could be consistent with drug intoxication or a psychotic relapse. Upon transfer to the RAH and a closed ward he displayed violence requiring the calling of a ‘code black’. Over the next few days his symptoms substantially improved with treatment and medication. He was ultimately diagnosed as having experienced a relapse of psychosis due to non-compliance with medication and possible illicit substance use. At the time of that report no toxicology results relating to the accused were available to the hospital or Dr Raeside.
Dr Raeside concluded his 11/3/2021 report by agreeing with the accused’s historical diagnosis of ongoing chronic schizophrenia with periodic acute relapses at times of non-adherence with medication, and substance use disorder. Dr Raeside conceded that there may have been some contribution to the conduct by illicit drug use, the details of which he was at that time unaware.
It appears that at the time of his first report Dr Raeside had only been provided with a small portion of the evidence as to what the accused had done, limited to a single ‘unprovoked attack in which he jumped in the air and kicked her (Ms Walker) in the chest; as well as being in possession of some stolen property’.[14] (My emphasis)
[14] Report of Dr Raeside dated 11 March 2021, p 8.
It was on these limited and plainly incomplete facts that Dr Raeside reached the following conclusion:
As such, the unprovoked nature of Mr Monydeng’s alleged assault appears entirely consistent with him acting on psychotic paranoia and possibly hallucinations with a prior history of bizarre aggressive behaviour when mentally unwell.
I therefore would support a mental incompetence defence in this matter in that it is likely that although Mr Monydeng probably knew the nature and quality of his actions (in assaulting the woman) he would have been unable to know the wrongfulness of his conduct by virtue of the psychotic impairment in his thinking. There is no indication he would have been totally unable to control his conduct, but there may have been some reduction in his impulse control.
Dr Raeside was then asked to provide an addendum report in relation to the other offences about which he had previously been provided no information. Dr Raeside’s second report is dated 21 July 2021.
Dr Raeside notes that he had since also been provided with information that a urine drug screening taken within hours of the offending was positive for both methylamphetamine and cannabis.
In his second report Dr Raeside said that these results would be consistent with a state of methylamphetamine intoxication at the time of the offending, irrespective of the contribution of the drugs to the accused’s worsening mental state and relapse of psychosis.
In his second report Dr Raeside said that while he remained of the view that the accused was psychotic, agitated and aggressive at the time of the events, in his view illicit drugs were a significant factor contributing to the relapse of the illness, and that many aspects of the accused’s behaviour could reflect ordinary motives such as trying to fund his ongoing drug use by stealing from the cars whose doors he tried to and on one occasion did open, and by stealing phone cards and cash. Dr Raeside said that the violent behaviour could also be consistent with anger, impulsivity, aggression towards those persons and, in the case of Ms Caristo, sexually motivated.
In light of this further information, Dr Raeside significantly qualified his view. He said:
With respect to his mental competence it would now be my view that Mr Monydeng’s alleged actions were likely a combination of acute relapse of Schizophrenia (due to non-compliance with medication and illicit drug use), the effects of acute methamphetamine intoxication with aggression and disinhibited sexual behaviour, and possibly financial motive in at least once case – possibly to fund further drug use.
Despite the unusual nature of some of the impulsive and aggressive behaviour there is no identifiable psychotic motive. He did not voice delusional ideas about victims. It is not clear if he was experiencing auditory hallucinations commanding him to act in that way, but his overall psychosis was the prominent factor affecting his reasoning, judgement, and behaviour. However, he was seen in company with one or two other males that decreases the likelihood that his alleged actions were primarily the result of his psychosis, with financial motive and associated drug use a possibility.
Therefore, although mentally ill with a psychotic relapse, there is some indication that Mr Monydeng knew the nature and quality of his conduct and the wrongfulness of it. Further, there is no indication he was totally unable to control his behaviour, notwithstanding some disinhibited sexual and violent actions. Additionally ongoing illicit drug use, including around the time leading up to the alleged offending appears to have been a contributing factor.
Essentially, it is very difficult to offer an opinion in relation to Mr Monydeng’s mental competence in relation to these other matters (having already supported a mental incompetence defence in relation to the aggravated assault on Ms Walker). I understand the defendant has the burden of proof and that is on the balance of probabilities, or more likely than not. If one takes 50% as to the cut off with 51% competent and 49% incompetent, then clearly there is very little difference between the two.
I would support a mental incompetence defence in relation to each of these offences if drugs are not considered to be a substantial cause. However, there is very little difference between them all (just above or just below the balance of probabilities). The complication relates to the contribution of illicit drugs and possible financial and sexual motives.[15]
[15] Report of Dr Raeside dated 21 July 2021, pages 6-7.
After the trial of the objective elements of the alleged offending concluded in February 2022, the transcript of that trial was provided to Dr Raeside, and Dr Raeside again spoke to the accused. Dr Raeside was asked to provide a further report.
Dr Raeside in his final report dated 19 May 2022 advised that reading the trial evidence had been of great assistance, providing him with further insight into the nature of the accused’s behaviour, although in his view none of the witnesses had provided any clear description of the accused’s mental state apart from seemingly impulsive, unprovoked aggression.
It must be observed from his final report that Dr Raeside’s description of the accused’s behaviour indicates that Dr Raeside may not have appreciated that the accused’s initiation of violence on the day was not ‘unprovoked’. In his evidence Dr Raeside also indicated that so far as he was aware, it was unknown why the accused kicked the doors of Ms Carli’s vehicle.[16]
[16] T14.
In fact, the trial evidence, when appreciated in its proper chronology, establishes that the accused’s violence was initially precipitated in the context of Ms Carli sounding her vehicle’s horn at him as he walked along the carriageway in front of her, possibly interrupting his attempts to break into vehicles by testing their door handles. He then stomped on her bonnet, causing her to accelerate at him forcing him to jump out of the way, and it was only then that the accused kicked the rear passenger side door as the vehicle passed him. Both having the horn sounded at him and having to jump aside to avoid being hit by Ms Carli’s accelerating vehicle, provide an obvious provocation for a person in the accused’s agitated, methylamphetamine-affected state.
Dr Raeside remained of the view that the accused was suffering an acute relapse of his schizophrenia, but was also acutely intoxicated, in addition to any psychotic illness and the role the drugs played in causing the relapse.
Dr Raeside said:
… In my opinion, the illicit drugs were a significant factor contributing to the relapse of his illness, separate from any intoxicating effects they may have had on him at the time of the offending.
I continue to offer the opinion that the offending was consistent with him being in an agitated and aggressive state, with methamphetamine also associated with increased energy and agitation, as well as increased sexual drive. Therefore, some of his behaviour could be consistent with him seeking to fund his ongoing drug use (stealing a phone, cards, cash, trying to open car doors, etc.), as well as for sexual purposes, but it could also have been opportunistic.
Therefore, I continue to offer the same opinion as in my report of 21/7/21. It is my view that Mr Monydeng’s alleged actions were likely a combination of acute relapse of Schizophrenia as well as the acute effects of methamphetamine intoxication with aggression and disinhibited sexual behaviour, as well as possibly financial motive in relation to the cards and phone etc.
When initially cross-examined, Mr Raeside indicated he had not been given the opportunity to read the reports of the other two psychiatrists Dr Brereton and Dr Nguyen. The court adjourned briefly for that to occur.
In cross-examination Dr Raeside gave evidence that even though the accused was in his opinion psychotic at the time of the events, having a psychotic episode does not necessarily prevent a person in the accused’s situation from knowing the wrongfulness of his behaviour.
Dr Raeside explained that if in fact the accused’s motives were psychotically driven, for example just random attacks for no reason, then it is unlikely that he would appreciate the wrongfulness of that behaviour.
Dr Raeside continued to explain that, on the other hand, if notwithstanding he was psychotic at the time, his actions were for specific motives such as financial or sexual, and hence non-psychotically driven, it is likely that the accused would also know the wrongfulness of that behaviour. Dr Raeside agreed that there were indeed some indications of such motives, and that this was the issue for the court to determine.^[17]
[17] T28-29.
In further cross-examination Dr Raeside gave evidence that he believed that illicit drugs in the form of cannabis and methylamphetamine had a very large impact and were a major factor in the accused relapsing into psychotic symptoms on the day.[18]
[18] T31.
Dr Raeside agreed with comments in both Dr Brereton’s and Dr Nguyen’s reports that because the accused had never said anything about his motives to perform the actions in question, the doctors are left to speculate about those motives in coming to their views as to the accused’s mental competence to commit the charged crimes.
Dr Raeside agreed that a person motivated by antisocial behaviour and/or by the influence of others present at the time would reduce the likelihood of the behaviour being psychotically driven.[19]
[19] T35-38.
Dr Raeside agreed that the accused has an underlying antisocial personality and a combination of the antisocial personality disorder exacerbated by the illicit drugs could have been the cause of his conduct quite independent of his schizophrenia.[20]
[20] T42-43.
With reference to Dr Nguyen’s report, and the additional factor set out therein that when hospitalised after the events in question and properly medicated in the absence of illicit drugs, the accused’s psychosis settled relatively quickly rather than being protracted, Dr Raeside said that he agreed with Dr Brereton’s opinion that that the illicit drugs were in fact a substantial cause of the mental impairment on the day in question.[21]
[21] T47-51.
Dr Brereton provided a report dated 9 December 2022.
Dr Brereton interviewed the accused for this purpose on 20 October 2022 for 45 minutes, at which time the accused unilaterally ended the interview by disengaging with Dr Brereton and switching off the audio-visual link (AVL).
Dr Brereton said he had also been responsible for the accused at Ashton House in 2018. Dr Brereton had read Dr Raeside’s reports and Dr Nguyen’s report.
In Dr Brereton’s opinion the accused has antisocial personality traits if not an antisocial personality disorder. The accused also has a substance use disorder, particularly with cannabis and methylamphetamine, that has worsened the course of his schizophrenia.[22]
[22] Report of Dr Brereton dated 9/12/2022, p 17.
In Dr Brereton’s opinion these factors mean that the extent to which the accused’s violence and aggression on any occasion are attributable to his psychosis, or on the other hand his substance abuse, is very difficult to determine.[23]
[23] Report of Dr Brereton dated 9/12/2022, p 17.
In coming to his ultimate view, Dr Brereton further explained the difficulty he faced. There was a paucity of evidence as to the most important issue (the accused’s mental state at the time of performing the acts in question), and hence any opinion that he and any other psychiatrist might give would be based to a significant degree on speculation and inference rather than actual evidence.[24] Dr Brereton said:
The question of Mr Monydeng’s mental competence is difficult to determine. As the previous psychiatrists have noted, Mr Monydeng was known to be psychotic when in hospital between 8 and 14 February 2020. He then spent time in the community untreated and using substances. The alleged offending occurred on 25 March 2020. He was admitted to hospital between 26 March 2020 and 8 April 2020. On his admission, he was observed to be suspicious, uncooperative, disorganised, hostile and threatening. He needed significant acute sedation with antipsychotic and benzodiazepine medication. He apparently reported he believed the government was against him and the clinicians considered him to be psychotic.
Despite the presence of psychosis, there is a paucity of evidence linking Mr Monydeng’s psychotic symptoms with the alleged offending behaviour in a way that informs one of the three limbs of the mental incompetence test, i.e. knowledge of nature and quality, knowledge of wrongfulness, and ability to control conduct.
Mr Monydeng told Dr Raeside that, prior to the alleged offending, he had been “sick”. In April 2020, he told Dr Raeside he had been confused, paranoid and hearing voices at the time of the alleged offending. In March 2021, he said to Dr Raeside he thought people were trying to hurt him and he was hearing voices at that time. The most Mr Monydeng told me about his symptoms around the time of the alleged offending was that he had thoughts people were trying to ‘get’ him and his thoughts were spinning fast. These reports do not link directly with the alleged behaviour.
The unprovoked, apparently motiveless, nature of most of Mr Monydeng’s alleged offending, coupled with his erratic behaviour at the Centrelink office, suggest his behaviour could be attributed to the agitated, aggressive behaviour he typically displays when he is psychotic. The alleged assault/indecent assault on one victim appears bizarre, occurring as it did on a busy main road, by a shop, and opposite Centrelink offices. He made an odd comment, “I am the police”. On the other hand, offending which involved theft, and the kicking of a car which had sounded its horn because Mr Monydeng was trying the door handles of parked cars, appear to have straightforward, mundane explanations.
Mr Monydeng’s history, and positive urine drug screen immediately after the alleged offending, mean there is a high likelihood he was intoxicated with cannabis and methamphetamine at the time. Methamphetamine intoxication can give rise to impulsive, aggressive and agitated behaviour.
In my opinion, Mr Monydeng was suffering from a mental impairment at the time of the alleged offending (a psychotic relapse of his schizophrenia). Overall, I believe he probably would not have committed the alleged offences if he had not been psychotic and on balance, I believe his psychotic symptoms (which probably consisted of persecutory ideas, auditory hallucinations and thought disorder) motivated his offending such that he did not know his conduct was wrong. That is, as a result of his psychosis, it is likely he could not reason about whether his conduct, as perceived by reasonable people, was wrong.
As a result, I would support a mental incompetence defence for these offences. However, I find this particularly finely balanced, and my opinion is based on speculation/inferences which the Court may not find persuasive, and may not be sufficient to overcome the presumption of competence.[25]
[24] See also T 77.
[25] Report of Dr Brereton dated 9/12/2022, pages 18-19.

Dr Brereton also concluded that the accused’s ingestion of cannabis and methylamphetamine as evidenced by the toxicology, together with the accused’s history and admissions, was in his opinion the substantial cause of the accused’s psychotic symptoms at the time in question.[26]
[26] Report of Dr Brereton dated 9/12/2022, pages 19-20, T 66.
In cross-examination Dr Brereton expressed the view that while it was hard to be certain about the accused’s genuineness when interviewed, the accused made no real effort to engage with any part of the interview, and it was highly likely he just decided to shut down the interview and was not entirely honest about the amount he could remember.[27]
[27] T70.
Dr Brereton agreed with Dr Raeside’s evidence in saying that a person can be psychotic while committing an offence, but that offending can be entirely unrelated to and unmotivated by psychotic symptoms.[28]
[28] T74-75.
Dr Nguyen provided a report dated 11 July 2022.
Dr Nguyen interviewed the accused for the purpose of the report on 12 May 2022, by video call, for one hour.
Dr Nguyen said that he had previously treated the accused during his hospital admissions to James Nash House and to Ward 2G at the RAH.
Dr Nguyen had been responsible for the accused during his most recent hospitalisation prior to the events in question, when the accused was admitted under Dr Nguyen’s care to Ward 2G at the RAH on 8 February 2020. On that occasion the accused had been located at a hotel behaving in an aggressive and abusive manner towards other patrons and was detained by police at the request of his community mental health team to receive his required medication. When he was taken to the RAH the accused’s escalating agitation and violent behaviour triggered a ‘code black’ emergency response. It became plain the accused had ceased taking his medication and had resumed taking illicit drugs. The accused absconded from the RAH on 14 February 2020.[29]
[29] Report of Dr Nguyen dated 11/7/2022, p 11.
Dr Nguyen reviewed the accused’s assessment and re-admission to Ward 2G at the RAH on 25 March 2020 shortly after his apprehension for the events in question in this case.
During his assessment for the purposes of his report, Dr Nguyen took the accused through each of the charged offences in detail. In response to every allegation the accused said he could not remember the incident.
In Dr Nguyen’s opinion the accused’s history and his presentation at interview supported the diagnosis of schizophrenia. In Dr Nguyen’s opinion the accused also displays features of an antisocial personality disorder which further complicates management of his severe mental illness, further compounded by the accused’s pattern of cannabis and amphetamine misuse.[30]
[30] Report of Dr Nguyen dated 11/7/2022, pages 12-13.
Dr Nguyen concluded that there was insufficient evidence to establish that the accused was mentally incompetent at the time of the events, and that on the available evidence it was more probable that the accused’s conduct was largely driven by antisocial behaviour and the influence of others. Dr Nguyen expressed his ultimate opinion in the following terms:
At the time of the alleged offences, it would appear that Mr Monydeng was sub-optimally treated as he had been non-compliant with his depot medication. The hospital admissions one month prior and following the commission of the alleged offences found him to be acutely psychotic. Days prior to the alleged offending, he had absconded from hospital and it is probable that he was experiencing ongoing psychotic symptoms around the time of the offences.
Mr Monydeng provided no account for his alleged offending and said that he could not remember anything. He was unable to describe his mindset around the time of the offending. It would seem probable that he was experiencing problems with thought disorder, irritability and impulsiveness. The role of possible drug intoxication is unclear but is probably relevant and contributed to his conduct in the commission of the offences and impaired memory of the allegations. His impaired memory of the offences may be genuine but I also had some suspicion that he may have been trying to conceal knowledge of the incidents. Similarly, I found him to be avoidant regarding elaboration of his past offending.
However, when considering a nexus between Mr Monydeng’s experience with possible delusions that are typical with his relapses and other psychotic symptoms AND with the subject allegations, this seems to be lacking when considering the legislation. There does not seem to be evidence to suggest that Mr Monydeng was unable to know the nature and quality of his actions, not be able to know the wrongfulness of them nor be able to control them. On several incidents, it is alleged that he had decamped which indicates some knowledge of wrongfulness, Alternatively, this may be driven by paranoia when he was approached by authority figures such as police.
In summary, there is insufficient evidence to support Mr Monydeng with a mental impairment defence for any of the charges. It is more probable that the commission of the offences were largely driven by antisocial behaviour and, for some of the offences, with influences from others.
Analysis
The court has been assisted by written and oral addresses. The court has regard to the totality of the evidence, which it has also carefully re-read, together with each and every argument of counsel, however will not set them all out.
The accused is presumed to have been competent to commit the alleged offences,[31] the objective facts of which have been proven.[32]
[31] Section 269D, Criminal Law Consolidation Act 1935.
[32] R v MONYDENG [2022] SADC 20.
It is for the court to determine whether this presumption has been displaced by proof on the balance of probabilities that either the accused did not know the nature and quality of his conduct, or did not know that the conduct was wrong; that is, he could not reason about whether the conduct, as perceived by reasonable people, is wrong, or that he was totally unable to control his conduct.[33]
[33] Section 269C, Criminal Law Consolidation Act 1935.
It is not submitted, nor is there any evidence to establish, that the accused did not know the nature and quality of his conduct. Neither is it submitted nor is there any evidence to establish that he was totally unable to control his conduct.
Accordingly, the issue remains whether there is evidence that establishes on the balance of probabilities that, in the words of section 269C (1)(b), the accused did not know that the conduct was wrong; that is, he could not reason about whether the conduct, as perceived by reasonable people, was wrong.
The events of 25 March 2020 are clear, as set out in the factual findings of this court in R v Monydeng [2022] SADC 20 and earlier summarised in these reasons.
The court accepts the expertise of the three psychiatrists who gave evidence in the present proceedings. Each were competent and experienced in the field of forensic psychiatry. Each had interviewed the accused for the purpose of their forensic analysis, and each had supplementary clinical experience with the accused at other times. Each wrote comprehensive and competent reports. Each gave evidence in a considered and helpful way. The court has been greatly assisted by their evidence.
It was common ground that the accused has schizophrenia, having first been diagnosed with it in 2014. It is also common ground that the accused has a long history of anti-social behaviour reflected by, amongst other things, aggression, violence, crime and illicit drug-taking.
It is also common ground that while each of the three psychiatrists did what they were asked to do and consequently expressed an opinion as to whether at the time of the alleged offending the accused knew that his conduct was wrong, each recognised there was very limited information about what was in fact the primary issue, being the accused’s actual mental state at that time.
In particular, there was very little direct evidence as to what the accused was thinking, and crucially what his motivation was to attack each of the respective victims. The accused is not recorded as saying anything to indicate what his intentions were at the time of each attack, nor did he provide much explanation when apprehended, nor even when specifically interviewed about the events by each psychiatrist. For example, in a clinical situation, a person might say why they did what they did. They might disclose a psychotic motivation if they had one, for example ‘everyone was trying to kill me’. On the other hand, they may describe a rational non-psychotic motivation such as trying to rob someone or wanting to sexually assault them.
Each psychiatrist agreed that the accused, as a person with schizophrenia, who having ceased taking his medication and having ingested illicit drugs, was suffering a relapse of psychosis at the time in question.
Each psychiatrist agreed that a psychotic relapse does not mean that a person necessarily doesn’t know the wrongfulness of all the conduct they undertake when in such a state. As very clearly articulated by Dr Raeside, the court itself needs to closely examine the conduct in question and form a view whether there appears to be an irrational psychotic motivation, or a rational explicable motivation, as that is indicative of whether the accused appreciated the wrongfulness of his actions.
Dr Raeside explained that if in fact the accused’s motives were psychotically driven, for example random attacks for no reason, then it is unlikely that he would appreciate the wrongfulness of that behaviour. On the other hand if, notwithstanding he was psychotic at the time, his actions were for specific motives that were financial or sexual in nature, and hence non-psychotically driven, in Dr Raeside’s view it was likely that the accused would also have known the wrongfulness of that behaviour. Dr Raeside was careful to observe that there were indeed some indications of such motives, and that that was the issue for the court to determine.
The evidence establishes that the accused is a person with an underlying antisocial personality, with a history of antisocial behaviour including aggression, violence and crime, compounded by and variously associated with the consumption of the very illicit drugs he had taken on the day of the events in question.
On close analysis of the events, all have a rational and non-psychotic explanation for the accused’s actions, particularly when one appreciates the accused’s antisocial personality and being under the influence of a cocktail of illicit drugs, cannabis and methylamphetamine.
The accused was initially walking along the carriageway of Claremont St Mile End, about to start testing the doorhandles of successive cars when Ms Carli sounded her horn directly behind him. This may well have upset or enraged the accused, in any event providing an obvious potential motive for him to then stomp on her bonnet. She then reacted by accelerating at him, causing him to jump out of the way, providing still further reason to potentially enrage the accused, such that he kicked and damaged her rear car door as she passed by.
Very shortly after this the accused came across Ms Walker, another woman, getting out of a car in the next street. It is quite possible the accused was still enraged at the woman who had sounded her horn and then driven her car at him, and decided to vent his anger at the next women he met. It is possible he had not been able to get into any of the cars whose doors he had been trying, and here was a woman getting out of a car, providing him an opportunity to access an unlocked vehicle.
Very shortly after this, in the next adjacent street, the accused attacked Ms Baxter by kicking her to the ground, whereupon he immediately struck her, pulled at her jacket and as soon as her phone and cards spilled free took them and any other items of apparent value before decamping across the road to another person who he began interacting with. Robbery is the obvious motive.
The evidence establishes that the accused then tried to jump the queue to get into the nearby Centrelink office, an action potentially consistent with the logical motive to obtain money from Centrelink. When told he had to queue like everybody else, the accused responded rationally and left.
The accused then saw another woman getting out of a car, and threatened her by nearly fly-kicking her, before opening the door of her car, consistent with a rational motive to scare her away from her car before she could lock it so that he could steal items from the car. This is consistent with the potential motive for his earlier conduct in trying the handles of the cars in Claremont St.
After this the accused approached Ms Caristo, and when she claimed the police were nearby, said ‘I am the police’. This is consistent with an intention to intimidate Ms Calisto into compliance, or to dissuade her from calling out for help. The subsequent attack has obvious potential motives of aggression, frustration and sexual violence.
On the other side of the coin, as indicated by the psychiatrists, there is little evidence of any psychotic motivation at any stage of these events. The accused did not say anything to indicate any irrational or delusional reason for any of the individual attacks either at the time of each individual attack, or upon his apprehension, or indeed at any time afterwards.
The attack on Ms Walker, viewed in complete isolation, might seem completely irrational. But when viewed in light of the accused’s drug-affected and potentially enraged state, just having been honked at, having tried to break into cars, and then just having been nearly run down by another woman in another car, a non-psychotic and, in that sense, rational potential motive of frustration and anger towards the next women in a car he ran in to, is apparent.
The comment to Ms Caristo, ‘I am the police’, when the accused, if rational, would know he was not a police officer, might in isolation seem completely irrational. But such comment is also consistent with a motive to secure Ms Caristo’s compliance with the sexual assault which was to follow and persuade her of the pointlessness of calling for help.
The accused’s actions of ceasing his sexual attack on Ms Caristo when others intervened and breaking into a run when their remonstrations got louder, and running for several streets when someone pursued him after these events, then stopping when police caught up with him are all consistent with a rational attempt to avoid apprehension, and a rational decision to stop running when apprehension became inevitable.
At the end of the day, whilst the court accepts that the accused was having a relapse of the psychosis associated with his schizophrenia on the day in question, upon a careful analysis of the totality of the evidence, and upon undertaking the close analysis of the accused’s actions in performing the events comprising the alleged events recommended by all three psychiatrists, the court is satisfied on the balance of probabilities that there is a rational potential basis for the accused’s actions in relation to each of the charged offences, and, when properly analysed, an absence of any significant indicia of psychotic motivation in relation to each of the charged offences.
In relation to each of the charged offences, which the court has considered separately, in the court’s opinion, the accused knew the conduct he was performing was wrong.
If the court is wrong about that, and the accused’s psychotic relapse caused the accused not to know that the charged conduct was wrong, then if that were the case, based on the unanimous evidence of Dr Brereton and Dr Raeside, the court finds that any such mental impairment would have been substantially caused by self-induced intoxication on the part of the accused within the meaning of section 269C (2).
Conclusion
In relation to each of the charged offences, considered separately, on the balance of probabilities, the accused knew the conduct he was performing was wrong.
Consequently, it has not been proven on the balance of probabilities within the meaning of section 269C of the Act that the accused did not know that his conduct was wrong; that is, that he could not reason about whether the conduct, as perceived by reasonable people, was wrong.
It is not submitted that there is any other basis upon which the accused could be found mentally incompetent to commit the charged offences.
Accordingly, the statutory presumption of mental competence has not been displaced.
The accused was accordingly mentally competent to commit each of the charged crimes.