R v P No. Sccrm-97-33 Judgment No. 6312 Number of Pages 31 Criminal Law

[1997] SASC 6312

IN THE SUPREME COURT OF SOUTH AUSTRALIA

WILLIAMS, J

Criminal law - evidence - confessions and admissions - statements - records of interview - hearing on the voir dire as to whether admissions made to police should be excluded as unreliable or in the exercise of discretion for being unfair to the accused - accused exercised sensible judgment at interview - not unreliable - mental health of accused relevant to weight - evidence admissible. Pfitzner (1996) 66 SASR 161; Sinclair (1946) 73 CLR 316, applied.

Criminal law - particular offences - offences against the person - other offences against the person - sexual offences - accused charged with gross indecency and unlawful sexual intercourse - trial of objective elements of offences separate from question of accused's mental competence - whether case to answer on gross indecency charge - whether conduct alleged had requisite sexual nexus to s58Criminal Law Consolidation Act - 'indecency' defined - held: case to answer - objective facts established on both charges. CriminalLaw Consolidation Act ss48-65, s49(1), s58, s74, s269E, s269G; Juries Acts7, referred to. Knuller v DPP (1973) AC 435; R v Court (1989) 1 AC 28; R v Whitehouse (1955) QWN 76, applied.

ADELAIDE, 6-8 and 15 August 1997 (hearing), 20 August 1997 (decision)

#DATE 20:8:1997

#ADD 5:9:1997

Appearances :

Counsel for Prosecutor: Mr S Millsteed QC

Solicitors for Prosecutor: DPP (SA)

Counsel for Accused P: Mr N Vadasz

Solicitors Accused P: Herman Bersee

Order: finding of case to answer.

WILLIAMS J:

1. The Charges

The accused, (whom I will call "D"), has been brought before the Court upon the information of the Director of Public Prosecutions which charges the accused with offences as follows:

First Count - Gross Indecency (Section 58 of the Criminal Law ConsolidationAct 1935).

[D] between the 1st December, 1995 and the 31st January, 1996 at Mount Gambier, committed an act of gross indecency with [J], being a person under the age of 16 years.

Second Count - Unlawful Sexual Intercourse with a Person Under 12 (Section 49(1) of the Criminal Law Consolidation Act 1935.

[D] between the 1st December, 1995 and the 31st January, 1996 at Mount Gambier, committed an act of fellatio upon [J], a person of the age of about 1 year.

(Amendments were made to the information upon my order and the recitation of the charges as abovementioned includes the amendments).

Upon his arraignment the accused pleaded not guilty in respect of each count. In accordance with s7 of the Juries Act the accused by notice dated 23 July 1997 has elected to be tried by Judge alone and not by jury.

On 6, 7, 8 and 15 August 1997 I conducted a trial in the presence of Mr S Millsteed QC of Counsel for the Director of Public Prosecutions and Mr N Vadasz of Counsel for the accused. At the conclusion of the evidence and after receiving addresses of counsel I reserved my decision as to whether the Court should find that the objective elements of the offence had been established in accordance with s269G of the Criminal Law Consolidation Act.

It should be made a matter of record that the accused comes before me with a presumption of innocence; he is not required to prove anything. He is not to be found guilty of any charge unless the prosecution (which in all respects bears the onus of proof) can prove beyond reasonable doubt each and every of the elements which constitute that particular charge. However, in par4 of these reasons I have mentioned one topic upon which the accused carries an onus of proof.

2. Investigation of accused's Mental Competence - Procedure

At trial the defence raised as a preliminary issue the defence of mental incompetence to commit the offences and I directed (in accordance with s269E of the Criminal Law Consolidation Act) that the trial of that question be separated from the remainder of the trial. At the request of the parties (and after hearing their reasons) I decided to proceed first with the trial of the objective elements of the offences and I then embarked upon the procedure required by s269G of the Criminal Law Consolidation Act.

However, a question as to the mental health of the accused (and its consequences) immediately intruded into the trial of the objective elements.

The accused was interviewed by police on 8 December 1996 when he made extensive admissions; the interview was recorded on video and audio tape.

At the conclusion of the interview the accused was arrested. Whilst he was detained he was assessed at James Nash House. His examination involved him being interviewed by Dr K O'Brien, a Consultant Forensic Psychiatrist.

A preliminary issue was raised by the defence as to whether (upon the trial of the objective elements) I should receive into evidence the accused's statement to the police and likewise whether I should receive evidence of the accused's admissions to Dr O'Brien. Accordingly I conducted a hearing on the voir dire and I received the submissions of counsel as to the use which should be made of the abovementioned material at trial.

3. Hearing on the Voir Dire

It was conceded by counsel that the accused's statement was voluntary. However, the defence contended that the record of interview should be regarded as lacking all evidentiary value by virtue of unreliability arising out of the accused's mental state. Alternatively the defence contended that the record of interview should be excluded upon the basis of unfairness to the accused by virtue of circumstances personal to the accused; the defence contention was not founded upon any criticism of the investigating police but was based upon the mental state of the accused.

For the purposes of this preliminary application, I took oral evidence from Dr O'Brien (who was called by the Prosecutor) and also from Dr Craig Raeside, a Forensic Psychiatrist (who was called by the defence). I have reached the following conclusions with regard to the accused's statements:

1. The evidence of the accused's police interview should be admitted into evidence but the weight to be attributed to it will be affected by the evidence as to the accused's mental health. The evidence establishes that caution needs to be exercised in the use which is made of this material. The evidence does not go so far as to demonstrate that no regard can be had to the accused's admissions. In the circumstances of this case the evidence is not to be excluded as unreliable. In reaching this conclusion I have had regard to the principles discussed in Pfitzner (1996) 66 SASR 161 especially at 177 and Sinclair (1946) 73 CLR 316 especially at 337-338.

2. I do not consider that considerations of fairness require me to exercise a discretion to exclude the police interview. The accused exercised a sensible judgment as to whether to answer the police questions; he appreciated his right to remain silent and he appreciated the evidentiary use which might be made of statements. (see Pfitzner at 180-181). The onus was on the defence to establish (on the balance of probabilities) circumstances requiring the exercise of the discretion on the grounds of unfairness but I do not consider that this onus has been discharged. There was evidence that the accused at the time of his police interview did not believe that there was anything wrong with his conduct (see T32 and 63-64). However, he knew that he was being interviewed by the police about allegations of a serious nature and he exercised his own judgment in deciding what to answer (T72). That the accused was unable to appreciate the distinction between right and wrong with respect to the act in question is not in itself a basis for excluding a confession (see Sinclair v R 73 CLR at 335-6). Once the confession is shown to be voluntary and to be sufficiently reliable to have evidentiary value, care is necessary that doctrines of unfairness are not allowed to subvert the rules relating to voluntariness and unreliability (see Pfitzner at 180-181). In this case I consider that the accused, whilst suffering from schizophrenia had a sufficient appreciation of his situation and of his rights at the time of the police interview, and he exercised a sensible judgment with respect to those rights and his interests.

3. The evidence of Dr O'Brien should be admitted at trial only for the purposes of providing an appreciation of the accused's mental health at the relevant time - namely at the time of the events which are the subject of the charges and also at the time of the accused's interview by police. Dr O'Brien's evidence will be used at trial in the process of assessing the weight to be attached to the accused's statement to the police and to sound the note of caution to what I have already referred. It would be unfair in the circumstances in which the accused spoke to Dr O'Brien to allow his statements to be used as admissions as to the events which have given rise to these charges. The Prosecutor conceded this point.

4. The Facts Elicited Upon the Trial of the Objective Elements

The evidence at trial comprised the evidence of K (the accused's wife), the accused's admissions in a police interview and evidence from two forensic psychiatrists. There was also some documentary evidence - including affidavits filed in Family Court proceedings which assumed some significance.

(a) The evidence of K

K gave oral evidence.

The accused was born on 29 October 1966. He met his wife K, (born 13 March 1975) in 1991 before her 17th birthday whilst she was still at school, where she stayed until she had completed Year 11. At that stage the accused was married to a friend of K's mother. At about the time that she turned 17, K went to live with the accused in 1992 at Portland in Victoria. As a result of her association with the accused she became estranged from her own parents in Mount Gambier and she seems also to have cut herself off from her friends. All this helps to explain why K put up with the treatment to which she was subsequently subjected and provides a background to understanding why she was slow to react in circumstances where she was left without family support and people to whom she might be expected to turn for help.

The accused and K were married on 8 September 1994 and on 27 September 1994 their son J was born.

The accused and K were living together at Unit 2, Powell Street, Mount Gambier at Christmas 1995 when K noticed the beginning of a pattern of bizarre behaviour on the part of the accused. On Christmas Day 1995 the accused told his wife that he was gay and was in love with a man who was living in a neighbouring unit. At about this time he had moved a bed into the lounge room and turned this into his own bedroom.

He started to drink his own urine. He commenced a practice in which he would urinate into his cup of coffee and then would drink it. K observed this phenomenon a few days after Christmas of 1995, a practice which he had seemed to follow two or three times a day over a period of a few months. A couple of days after the coffee incident first came to K's attention, she noticed that the accused urinated into a glass and then poured it into J's milk bottle and gave J the bottle to drink. The accused did this thereafter four or five times a week over a period of a few months. The accused's explanation to his wife for his conduct was that the drinking of urine helped stop him from being hungry. He explained that giving J the drink of urine stopped him from crying and whingeing and "gave him powers to make him grow".

In late December 1995 or early January 1996 K says that she noticed that the accused placed his own semen into J's mouth. K asserts that he masturbated into a drinking glass, transferred the ejaculate into his own mouth and then orally transferred it into the mouth of J. K's explanation of this is summarised in her evidence as follows:

"Q. Dealing with the first occasion.

A. Yes.

Q. How much later was it that you saw him after he left the kitchen.

A. About five, ten minutes later.

Q. When did you next see him.

A. When he came back into the kitchen.

Q. Did he still have the glass.

A. Yes.

Q. What did he do with it.

A. He had put the glass, empty glass on the sink. And I looked at [D] and his cheeks were puffed out, like he had something in his mouth.

Q. What did you see him then do.

A. I seen him walk into the lounge room, where [J] was.

Q. Where is the lounge room, in relation to the kitchen.

A. I could stand at the end of the bench in the kitchen and I could see everything in the lounge room.

Q. Was the lounge room next to the kitchen.

A. Next to the dining area, but the dining area was just off the kitchen.

Q. Was there a wall which separated the kitchen from the lounge room.

A. Yes, but it had a big arch in it.

Q. So, you could see from the kitchen into the lounge room.

A. Yes.

Q. When [D] left the kitchen, did you see where he went.

A. Yes, he went in the lounge room, where [J] was.

Q. Where were you, at the time.

A. I was in the kitchen still.

Q. Where were you making your observations from.

A. I had walked to the end of the bench, because I wanted to see what was happening.

Q. What did you see happen.

A I seen [D] kneel down beside [J] and put his mouth over [J's] mouth, like he was giving him a kiss.

Q. Can you describe what happened after that.

A. [J] screamed and [D] stood up.

Q. Did you ask [D] what he had done.

A. No.

Q. Did you ask him why he had put his mouth on the baby's mouth.

A. No.

Q. Did you see whether there was anything in the glass.

A. Yes, I had a look in the glass, before I walked to the end of the bench, and I seen the remains of white stuff in the bottom of it.

Q. What did it appear to be.

A. Semen.

Q. Was that the first occasion that anything of that kind had happened.

A. Yes.

Q. Was there a later occasion when there was an incident in the bathroom.

A. Yes.

Q. How much later.

A. I think it would be a few days later.

Q. Had you gone into the bathroom.

A. Yes.

Q. Where had you been, before you went into the bathroom.

A. I was in the lounge room. I finished bathing [J] and I went into the bathroom to hang out the towel.

Q. When you entered the bathroom, where was [J].

A. In the lounge room.

Q. What was he doing in the lounge room.

A. Playing.

Q. Was he in a highchair.

A. No, he was just lying on the floor, playing.

Q. You entered the bathroom to put a towel in the bathroom.

A. Yes.

Q. When you entered the bathroom, did you see anyone.

A. Yes, I did.

Q. Who did you see.

A. I seen [D].

Q. What was he doing.

A. He was leaning up against the cupboard, with a glass held to the bottom of his penis, and he was wanking himself ready to ejaculate in the glass.

Q. Did you see whether he ejaculated.

A. Yes, he started to and I walked out of the bathroom.

Q. Did you say anything to him.

A. No.

Q. Why did you leave the bathroom.

A. Because I didn't really want to see what he was doing.

Q. Where did you go.

A. I went back into the kitchen.

Q. What did you then do.

A. I believe I was doing the dishes.

Q. Did you see [D] sometime later.

A. Yes.

Q. How much later.

A. About five minutes later.

Q. Where did you next see him.

A. He walked into the kitchen.

Q. Was he holding anything.

A. Yes, he had the empty glass in his hand again.

Q. What did he do with the glass.

A. He put it on the sink.

Q. After he had put the glass on the sink, what did he do.

A. He went in the lounge room, where [J] was.

Q. Did you see him go to the lounge room.

A. Yes.

Q. When you saw him enter the lounge ro om, what did you do.

A. I followed.

Q. Where did you go.

A. To the end of the bench.

Q. And could you see [D] when you got to the end of the bench.

A. Yes.

Q. Where was he.

A. He was in the lounge room with [J].

Q. And what was he doing.

A. He was getting ready in a position to kneel down beside [J] and I believe lean over to kiss him on the mouth, like, it looked like he was going to do, and then spit whatever he had in his mouth into [J']s mouth.

Q. Did you say anything to him.

A. I don't think so, no.

Q. What did you see him do after you got to the bench.

A. Kneel down beside [J] and then lean over [J].

Q. Did you see him do anything to [J] once he had done that.

A. Placed his mouth over [J's] mouth.

Q. Did you notice anything about [D's] cheeks.

A. Yes, I did.

Q. What did you notice.

A. Like, his mouth was full, like he had something in his mouth to make his cheeks all puffy.

Q. And what happened after [D] placed his lips on the baby's mouth.

A. [J] screamed.

Q. What did [D] do.

Q. I believe he spat whatever he had put into his mouth in [J's] mouth and then stood up and walked away."

(Whilst the practice above described occurred more than once it is the "bathroom incident" lastly above described and its sequel in the lounge room which was the incident upon which the prosecutor relied as the basis for Count 1. No question of duplicity arises).

There was another aspect to the accused's bizarre behaviour which appears to have come to a head in January 1996. K's description of this is as follows:

"Q. We will come back to the sequence of events in a moment. You have described that during this period over January of 1996 your husband would feed the child urine and semen.

A. Yes.

Q. Did your baby wear a nappy.

A. Yes.

Q. Did you change the nappy from time to time.

A. Yes.

Q. Did [D] also change the nappy.

A. Yes.

Q. And how often would he change the baby's nappy.

A. On average, three times a day.

Q. Did you ever see him do anything to the baby whilst he was changing the nappy.

A. Yes.

Q. What did you see him do.

A. I seen [D] suck on [J's] penis.

Q. I am sorry.

A. [D] suck on [J's] penis.

Q. On more than one occasion.

A. Yes.

Q. How often did you see him do that.

A. Every time he got the chance to change [J's] nappy.

Q. When was the first occasion that you saw [D] suck on the baby's penis.

A. In the lounge room.

Q. Of Unit 2, Powell Street.

A. Yes.

Q. And where were you at the time.

A. I was also in the lounge room.

Q. Where was [J].

A. On the floor in front of the heater.

Q. And where was [D].

A. Sitting by [J's] feet changing his nappy.

Q. And what did you see [D] do.

A. I seen [D] pin [J's] legs down so [J] couldn't kick, and I seen [D] kneel or bend over so he could suck on [J's] penis.

Q. And did you see whether he made contact with the baby's penis.

A. Yes.

Q. How.

A. [D] had his mouth around [J's] penis.

Q. Did you try and stop him.

A. I asked [D] why he had done that.

Q. Did he give you any explanation.

A. `To give [J] feeling down there.'

Q. And what did you say, if anything.

A. I said `[J's] too young to have feeling down there. He's only a baby.'

Q. Following that first occasion, how often did you see [D] suck the baby's penis.

A. It wasn't very often, but every time I heard [J] scream while [D] was changing his nappy, I believe that [D] was sucking his penis again.

Q. If we can just confine your evidence to the occasions when you actually saw him sucking the baby's penis. After that first occasion how many times, if any, did you see [D] suck the baby's penis.

A. On average, I think, once a week."

(It was the first occasion above described which was the subject of the charge in Count 2).

I was impressed by K as a witness whom I accept as a witness of truth and reliability. There was evidence that she took proceedings in the Family Court regarding custody of J and in the proceedings before me she was vigorously cross-examined as to the contents of the affidavits filed in the Family Court. The affidavits were prepared for a particular purpose and I would be slow to criticise the material in the affidavits which addressed the immediate urgent issue without fully canvassing matters which were not then crucial.

It is easy to criticise the affidavits and the comment is justified that there could have been more care in their preparation. However, I am required to assess K's credibility and I do not consider that the shortcomings in her affidavits contributed in any significant way to the assessment of her credit when one appreciates the logistic difficulties associated with the preparation of the Family Court proceedings. I found K's explanations to be convincing.

(b) The accused's record of interview by the police

K's evidence in all crucial respects is confirmed by the accused's admissions to the police. He acknowledged that he had drunk urine and gave it to J. He acknowledged that he had given his semen to J in the manner which K described. He acknowledged that he had placed his mouth over J's penis. The accused in his statement to the police and K's evidence to the Court were obviously dealing with the same events. There was some evidentiary gaps (small that they might be) in K's evidence which I would have no difficulty in filling by inference from the facts. However, the accused's record of interview fills these gaps and reinforces what K has said on oath. I have found the accused's evidence useful for this limited purpose even in the light of the caution which I mentioned in par3 of these reasons.

The accused was interviewed by Detective Senior Constable Davis at Mount Gambier Police Station on Sunday 8 December 1996 following a preliminary interview at Commercial Street East Mount Gambier earlier the same day; I have admitted both interviews into evidence and I have treated the second interview as being a continuation of the first for the purposes of my ruling as to the admissibility of this material.

The accused gave a cohesive and comprehensive account of his relationship with K and J. He exercised his right to decline to answer some questions; he demonstrated by his answers that he knew how his statement might be used.

He confirmed generally the evidence of K as regards the matrimonial history. He admitted transferring his semen from his own mouth to the mouth of J. He acknowledged that he placed his mouth over J's penis and that he sucked on his penis; the accused claimed that this "was the right thing". The accused claimed that feeding semen and urine to J seemed to stimulate his appetite.

To me it was significant that the accused was able to refute a suggestion when the need arose. Owing to a misunderstanding the accused misinterpreted a police question. He thought that an accusation was being made that his "inappropriate" conduct occurred at Jarrah Street Mount Gambier (an earlier mentioned residence); he was quick to deny any such assertion (see Q.No139-144 in Transcript of record of interview - Exhibit P4). As I understand K's evidence, his denial was justified and demonstrates how the accused was able to apply his mind to dealing with the true factual situation and how we was able to acquit himself properly in the course of the interview.

In his record of interview the accused gave his explanations for his conduct which disclose his bizarre beliefs - for example that his son was "gay". His explanation had little meaning for the police but with the benefit of the explanation of a forensic psychiatrist, his story suddenly acquired for me a meaning which reflects his disordered mind.

I have dealt with the accused's record of interview further in par6 hereof against the background of his mental health and I have there discussed his curious notion of a "gay" baby. In my assessment of the weight to be attached to the accused's record of interview (and the various segments thereof) I have paid close attention to the views of the psychiatrists as discussed below in par6.

5. Gross Indecency - A Case to Answer?

At the conclusion of the prosecution case the defence submitted that the matters alleged by the prosecutor - even if established in evidence - did not constitute an offence within s58 of the Criminal Law Consolidation Act. Counsel for the defence submitted that the act of feeding semen to J did not have the sexual connotations which were an essential ingredient in the offence; the transfer of semen from the accused's mouth to J's mouth was for therapeutic purposes (to make J grow) and was not to be characterised as an indecent act. There is no suggestion that the accused engaged in the conduct as alleged for the purposes of his own sexual gratification.

Section 58 reads as follows:

"(1) Any person who, in public or in private-

(a) commits any act of gross indecency with, or in the presence of, any person under the age of sixteen years;

(b) incites or procures the commission by any such person of any act of gross indecency with the accused, or in the presence of the accused, or with any other person in the presence of the accused;

(c) is otherwise a party to the commission of any act of gross indecency by or with, or in the presence of, any such person, or by or with any other person in the presence of any such person, or by any such person with any other person in the presence of the accused,

shall be guilty of an offence and liable for a first offence to be imprisoned for a term not exceeding three years and for any subsequent offence to be imprisoned for a term not exceeding five years.

(2) It is no defence to a charge under this section that the act of indecency was committed with the consent of the person concerned."

This section is grouped with ss48-65 which carry the heading "Rape Defilement and Abduction". An offence against s58 is treated as a "sexual offence" for the purposes of s74 (persistent sexual abuse of a child) by virtue of s74(11). None of these matters is conclusive in leading to the construction of the Act which I have adopted. However counsel were in agreement that an offence against s58 does require conduct which has a sexual overtone or nexus. I am prepared to accept that submission.

In the circumstances of the present case I consider that the conduct upon which the prosecution relies (if it be proved) does have the requisite sexual nexus to bring it within s58.

In the context of s58, the word "gross" gives a quality to the word "indecent", its meaning is discussed in R v Whitehouse (1955) QWN 76. The history of s58 - introduced by the Act No 1670 of 1925 and amended by the Act No66 of 1975 shows that the section was originally intended to deal with conduct by a male in the presence of a girl under the age of 16 years; more recently the section has been amended to deal with acts by any person (irrespective of gender) against any child under the age of 16 years. I am satisfied that the conduct to which s58 applies goes far beyond homosexual acts. I consider that the incident involving transfer of semen to J upon which the prosecution relies is capable of being regarded as an act of gross indecency within s58.

Upon the prosecution case, having masturbated into a container, the accused took his own semen into his mouth and then transferred the substance directly from his own mouth into the mouth of J. In my view, this combination of facts is of a character which demonstrates a sexual component or colour sufficient to satisfy s58.

An act of indecency will include anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting (see Knuller v Director of Public Prosecutions (1973) AC 435 at 458 per Lord Reid).

If the act in question is inherently indecent, it is unnecessary that an indecent intention be demonstrated (see R v Court (1989) 1 AC 28 at 42-43). The way in which right minded persons would view the accused's conduct is not to be affected by the fact that the accused's motive is to provide sustenance to the child.

I consider that the conduct which is alleged upon the prosecution case infringes contemporary community standards of decency and propriety in a way which can be described as "gross".

Accordingly I conclude that the conduct which is alleged offends against s58 and gives rise to a case to answer.

6. The Accused's Mental Health

The accused suffers from active paranoid schizophrenia. His statements cannot be taken at face value because of the severity of his psychosis and his delusional beliefs. This mental illness was manifest at Christmas 1995 and continued until after his arrest - when he received treatment. At the time of the alleged offences his illness manifested itself by command auditory hallucinations (the hearing of "voices") and bizarre beliefs. For example he considered that his son was "shrinking". Upon interview by forensic psychiatrists he exhibited "perplexity" - an inability to properly understand his own behaviour - which actually puzzled him. He struggled to come to grips in explanation with aspects of his behaviour and his thinking. One manifestation of the accused's mental illness is Capgras syndrome; Dr O'Brien explained this as follows [T7]:

"It is a delusional disorder of substitution when a person believes that significant people in his or her life have been changed or substituted in some form or other. It was manifested in [D] by a belief that his infant son was shrinking in size; as well as that, that his wife was changing, and that he himself was being changed or substituted in some fashion."

Despite the fact that the accused at relevant times would be unable to "argue about the wrongfulness of the act with a moderate degree of sense and composure", Dr O'Brien gave the following evidence:

"Q. In your opinion, was [D's] illness such that it would prevent him from relating events which he actually experienced when he was being questioned by police.

A. No, I do not believe that his illness would have prevented him from recalling experiences."

I reject the suggestion that the accused may have simply adopted the terms of his wife's complaints in the affidavit material filed in the Family Court. An affidavit by K sworn on 11 September 1996 gives the bare outline of the relevant evidence as to the accused's conduct. This has been filled out in evidence upon the present trial by K and reflects the accused's record of police interview. There are variations between the two versions; as the accused acknowledges conduct "depends on how you look at it". K gave evidence that the accused claimed to have sucked J's penis "to give him feeling down there"; in her affidavit of 11 September 1996 (par16) K says precisely the same; the accused in his record of interview [Q300] refutes this and claims that this was being confused with his reason for massaging J. This is an example of the accused giving evidence which was not based on the affidavit. Upon a close examination of the accused's statement with K's evidence before me and her affidavit evidence in the Family Court, I am convinced (in the light of the psychiatric evidence) that the details of the accused's record of interview do not owe their origins to his adoption of K's affidavit evidence. The affidavit may have put the accused on notice generally of the nature of the allegations which were being made against him. Notwithstanding this fact (if it occurred) I find that the accused told his own story in his record of interview based on his own experiences; his delusions are not difficult to identify in the record of interview; they provide a bizarre rationale for his behaviour. The accused's behaviour is attributable to his beliefs; there is a "loose association" which may be identified between the bizarre beliefs and his conduct if one makes allowance for the underlying delusion. In some instances the "perplexity" identified by Dr O'Brien is patent in the record of interview because (as the expert evidence confirms) the accused does not really understand the matters which motivate him.

The defence called only one witness - Dr Craig Raeside; his evidence was taken for the purpose of the preliminary hearing (as abovementioned); I was later asked to treat that evidence as the defence evidence for the purposes of the trial of objective facts in the event that I admitted the accused's record of police interview as evidence at trial. Accordingly, in accordance with the request of defence counsel this evidence has been treated as evidence at trial as a result of my preliminary ruling referred to in par3 hereof.

Dr Raeside provided a useful insight into the accused's mind and his state of health. I record the following extract from Dr Raeside's evidence.

"Q. Another manifestation of his schizophrenia was that he suffered from bizarre delusions.

A. Yes, that was one of the most noteable features about [D]. Again, from a professional point of view, he presented as a very interesting case in which he had a rare condition associated with his delusional ideals. That is Capgras syndrome, named after a Frenchman called Capgras. What that is is a misidentification syndrome in which a person may believe that there are doubles of certain people or strangers have taken over well-known people. For example, strangers have assumed the identity of their father or mother - in this case, [D] believed he was his baby. That is a well recognised and quite rare condition and is getting less. So, that is actually a delusional disorder. A delusion is a fixed false belief that is usually unshakeable to counter argument. Despite any logical argument, the person maintains that illusion. ...... Q. [D], you found, believed there were quite a few copies of [J] and himself.

A. Yes.

Q. The copies of his son were somewhat smaller by a couple of inches than natural born.

A. Yes.

Q. He held that belief when you interviewed him in February 1997.

A. Yes. He continued to - I am trying to recall whether he maintained that belief or he was telling me he had that belief. My recollection is he continued to maintain that belief initially when I saw him. Certainly when he arrived at James Nash House, before preparing the report for the court matter, he certainly described that to staff; quite notable. We gave no usual caution not to discuss his offences because notes could be subpoenaed or whatever but he freely spoke about this rather bizarre delusional syndrome he had about different copies of his baby, he could only tell because they were slightly smaller and, upon going into it further, he used the word `gay' baby to relate to that and said he had been a gay baby himself and by `gay' he meant there had been copies of them and duplicates made. He couldn't give an explanation for why he used that word.

Q. He didn't use `gay' in the modern sense of homosexual.

A. No. I specifically asked him and he said that's not what he meant. He said that was a word given to him. I understood that related to some sort of auditory hallucination or some other system where that came to be associated with that belief.

Q. Another one of his delusions was that he was a feeder.

A. Yes.

Q. And that he was required to feed J in a number of different ways.

A. Yes, that's correct. He believed that these smaller babies were being substituted for his real baby and that they were small and needed to have their appetite stimulated in order to make them grow. He had a number of beliefs such as urine and semen would stimulate the appetite and help him to grow. He said he did that because he wasn't eating and needed to stimulate his appetite. He talked of the role of the feeder. He meant he would transfer fluids from one person to another and, in this case, gave me an example, saying that he would, as I have got in the report - that he licked [K], his wife, on the vagina and then went to [J] and put it on [J's] tongue, that he was an intermediary to feed [J] from another person. Quite bizarre.

Q. Was that a belief he held at the time of your interview with him.

A. Yes.

Q. It was a belief that, as far as you could tell, he maintained throughout that period of his illness.

A. It sounded like it had been present for a long time, that it was something that had been part of his illness and he continued to believe that until only recently.

Q. He might have believed that for all of 1996.

A. Maybe longer. It was well entrenched into his belief system.

Q. The notion of transferring or passing on urine and semen to [J], from what you say, quite clearly fits in with Capgras' Syndrome.

A. No, I don't know that it quite fits in. It is consistent with the idea there were duplicates of his baby and to stimulate the appetite, he believed J needed to be fed in some way.

Q. Assuming that those things happened, in your view were they conducted in a sexual or non-sexual manner.

A. I specifically asked him about that. He denied any sexual satisfaction or intention of that and really related it simply to this delusional syndrome of the baby needing to be fed in a certain way. At times he said initially he felt uncomfortable doing it because it seemed very odd to him. He then talks about how he was led to believe it was the right thing to do, couldn't be specific where that had come from. He seemed to indicate initial reticence but did it because he needed to do it because of the baby's wellbeing. He told me he drank his own semen and urine and had done so for a while, for similar reasons."

Dr Raeside provided me with an explanation into the way in which "loose associations" (to which I have already referred) could be identified in the disordered thought processes and behaviour of a person suffering from schizophrenia. Dr Raeside's evidence included the following:

"Q. Another manifestation of his schizophrenia was disjointed thinking.

A. Yes, that is a feature - one of the cardinal features of schizophrenia.

Q. Can you just elaborate on disjointed thinking.

A. Again, the technical word is `thought disorder' in which a person's thinking process as well as content is disordered. For example, a person may not make logical connections between individual thoughts or trains of thought and they have what we can call loose associations, that is, get off the track very easily in a sort of disjointed illogical way. They may experience other things such as tangential thinking in which they follow one particular part of a thought and then keep going until soon it has no connection to the original thought at all. People that are more unwell, and I think [D] was an example of this, can have what we call poverty thinking in which thoughts are removed from their head, or they have no thoughts in their head at all, or they are thought blocking - the train of thoughts are blocked and they can't proceed past that point."

Even after making allowance for the mental health of the accused, I am convinced that the evidence given by K is true; the evidence of the accused and K serves as reinforcement of each other. The accused's conduct is explicable by reference to his mental health. I find these conclusions to be compelling upon the uncontroverted evidence.

7. Formal Finding

Upon the whole of the evidence I am satisfied beyond reasonable doubt with respect to the facts mentioned below.

I find that between 25 December 1995 and 31 January 1996:

1. the accused, having collected his own semen by masturbation, transferred the semen from his own mouth to the mouth of J, his one year old son, by spitting the substance into J's mouth.

2. the accused placed his mouth over J's penis and sucked it.

By reason of these facts I am satisfied that the objective facts have been established beyond reasonable doubt with respect to the offences respectively alleged in each of the two counts upon the information.

In accordance with s269G of the Criminal Law Consolidation Act I record a finding that the objective elements of the offences respectively charged in Count 1 and Count 2 upon the information are established.