R v Paauwe - [2018] SASC 42

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v PAAUWE
[2018] SASC 42
Judgment of The Honourable Justice Hinton
4 April 2018
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - PROCEDURE
David Paauwe was charged with the attempted murder of his father. It was alleged that Mr Paauwe approached his father and struck him in the head a number of times with a meat cleaver.
The question of Mr Paauwe’s mental competence to commit the offence was reserved for consideration by this Court under s 269E(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). Under s 269B CLCA Mr Paauwe elected to have the question of his mental competence to commit the offence and the question of whether the objective elements of the offence have been proven beyond reasonable doubt, dealt with by a judge sitting alone.
Pursuant to s 269F(A)(5) CLCA the parties agreed that the investigation into Mr Paauwe’s mental competence to commit the offence should be terminated and a finding made that he was mentally incompetent to commit the offence. The parties also agreed that on the prosecution’s written case it was open to the Court to be satisfied beyond reasonable doubt that the objective elements of the offence could be established.
Held:
1. The investigation into Mr Paauwe’s mental competence to commit the offence of attempted murder is terminated pursuant to s 269F(A)(5)(a) of the Criminal Law Consolidation Act 1935.
2. Mr Paauwe was mentally incompetent to commit the offence of attempted murder.
3. The objective elements of the offence of attempted murder are established beyond reasonable doubt.
4. Mr Paauwe is not guilty of the offence by reason of his mental incompetence and liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935.
Criminal Law Consolidation Act 1935 (SA) Part 8A, referred to.
Penney v R (1998) 155 LAR 605; R v Willoughby (No 3) [2018] SASC 6, applied.

R v PAAUWE
[2018] SASC 42
Criminal
HINTON J.
Introduction

David Paauwe (Mr Paauwe) is charged that he did on 25 December 2016 attempt to murder his father, Edward Paauwe. The offence is alleged to have occurred during the Christmas day church service conducted by the Providence Bible Presbyterian Church at Mawson Lakes. It is said that whilst the congregation was at prayer Mr Paauwe approached his father and struck him in the head a number of times with a meat cleaver. Members of the congregation intervened and Mr Paauwe fled.
The question of Mr Paauwe’s mental competence to commit the offence was reserved for consideration by this Court under s 269E(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). Under s 269B CLCA Mr Paauwe elected to have the question of his mental competence to commit the offence and the question of whether the objective elements of the offence have been proven beyond reasonable doubt, dealt with by a judge sitting alone.
The matter was listed for trial on 12 December 2017. On that date the Court was advised that the prosecution and defence agreed that the investigation into Mr Paauwe’s mental competence to commit the offence with which he was charged could be terminated under s 269F(A)(5) CLCA and a finding made that Mr Paauwe was mentally incompetent to commit that offence. The Court was also advised that the prosecution’s written case, which was not disputed, was, if accepted, capable of proving the objective elements of the offence beyond reasonable doubt.
Despite the attitudes of the parties, Counsel for the prosecution considered the power contained in s 269F(A)(5) CLCA to be discretionary. Accordingly, it was for the Court to satisfy itself that it was appropriate to act on the agreement of the parties. Counsel for Mr Paauwe agreed. Counsel were also in agreement that it was for the Court to determine, despite the parties’ view, that the prosecution written case was capable of proving the objective elements of the offence with which Mr Paauwe is charged.
The Court received the following on the basis that the content is the evidence that the various persons would give had they been called:
·Report of Dr H Nguyen dated 12 April 2017 (Exhibit P1);
·Addendum Report of Dr H Nguyen dated 16 August 2017 (Exhibit P2);
·Email from Dr H Nguyen to Ms T Mullan (AGD) dated 4 December 2017 (Exhibit P3);
·Report of Dr Raeside dated 18 August 2017 (Exhibit P4);
·Report of Dr Raeside dated 1 November 2017 (Exhibit P5);
·Report of Dr Raeside dated 24 November 2017 (Exhibit P6);
·List of Declarations (including the thirty-six declarations referred to therein) (Exhibit P7);
·Photographic evidence from Sergeant Houston (MH1) (Exhibit P8);
·Photographic evidence from Sergeant Cross (LEC1) (Exhibit P9);
·DVD of Arrest and Record of Interview (Exhibit P10);
·DVD of footage taken at church (Exhibit P11).
On 1 February 2018, after considering the material tendered, I made the following orders:
1.The investigation into Mr Paauwe’s mental competence to commit the offence of attempted murder is terminated pursuant to s 269F(A)(5)(a) CLCA.
2.I find on the balance of probabilities that Mr Paauwe was mentally incompetent to commit the offence with which he is charged.
3.I find the objective elements of the offence with which Mr Paauwe is charged established beyond reasonable doubt.
4.I find Mr Paauwe not guilty of the offence of attempted murder and declare him to be liable to supervision under Part 8A CLCA.
My reasons for making those orders follow.
It is convenient to deal first with the objective elements of the offence charged.
The Objective Elements of the Offence of Attempted Murder
The offence of attempted murder is established by ss 11 and 270A CLCA. The elements of that offence are provided by the common law. Those elements are as follows: [1]
1.That Mr Paauwe specifically intended to kill his father;
2.That Mr Paauwe attempted to execute that intention to kill in the sense that he did an act or a series of acts which were immediately directed towards fulfilling that intention;
3.That the act or series of acts were done without lawful excuse.
[1] Penney v R (1998) 155 ALR 605 at 613 (Callinan J).
Section 269A(1) CLCA defines an objective element of an offence as meaning an element that is not a subjective element.[2] A subjective element of an offence is defined in the same section as meaning voluntariness, intention, knowledge or some mental state that is an element of the offence. Having regard to these definitions, the objective elements of the offence of attempted murder are contained in the second of the elements as stated above, namely, the commission of an act or a series of acts which were immediately directed towards fulfilling the first element. An act or a series of acts which are immediately directed towards fulfilling the first element are those that are more than mere preparation to commit the offence and are sufficiently proximate to the completion of the offence such that it may be said that the accused has actually embarked on the commission of the offence.[3]
[2] Part 8A of the Criminal Law Consolidation Act, 1935 (SA) has been amended since 25 December 2016, the day of the alleged offence. It was not suggested by either the prosecution or the defence that such amendments as they relate to mental incompetence have retroactive effect. Accordingly, I have applied Part 8A as it was at 25 December 2016.
[3] R v Collingridge (1976) 16 SASR 117.
The evidence of the objective elements and my conclusion
There is no doubt that the conduct subject of the charge occurred during the course of a Christmas day service conducted by the Providence Bible Presbyterian Church. The Church used a room at the Mawson Lakes Primary School for its purposes. The room was set up so that rows of seats were divided by a centre aisle. Pastor David Weng presided from a position at the front of the room facing the congregation.
Edward Paauwe was in attendance with his wife Lehia. Edward Paauwe was the founding pastor of the Hope Bible Presbyterian Church. The Christmas day service was scheduled to start at 3 pm. About 25 to 30 people were present. Mr Paauwe was in attendance that day. That was not unusual.
Edward and Lehia Paauwe sat near the front as, despite his not being the celebrant, Edward was to preach during the service. Mr Paauwe was not sitting with his parents, but sat a few rows behind them.
Edward Paauwe recalls that the congregation was called to prayer and that as it was about to sing a hymn he was struck. His next memory was of being on the ground. He did not know what had happened to him.
Lehia Paauwe recalls having her eyes closed in prayer. Her husband sat to her right. She heard a noise to her right hand side. She opened her eyes and saw her son, Mr Paauwe, hitting her husband to the right side of his head. She did not see any knife but heard the thuds as the blows were struck.
The statements of other members of the congregation present make clear that most had their eyes closed as they stood praying. However at the sound of Mr Paauwe hitting his father many opened their eyes to see what was happening.
Two members of the congregation, Ms Yun Wah Lau and Ms Ka Yee Chu, did not have their eyes closed.
Ms Lau said that halfway through the prayer, she looked up because her daughter became fussy. She said she saw Mr Paauwe, whom she knew, walking over to the second row of seats on the right hand side of the room. He was holding a backpack in his hand. She saw him remove a shiny metal Chinese chopping knife from the backpack. She watched him use the chopping knife to hit Edward Paauwe, whom she referred to as Pastor Ed, on the head twice. Pastor Ed fell to the ground. She said that Pastor Weng and another member of the congregation then used chairs to push Mr Paauwe out into the hallway.
Ms Chu said her daughter was crying so she took her to the back of the room. As Ms Chu returned to her seat, she heard a man say “Huh” as if he was exerting himself. She looked to her right and saw Pastor Ed’s son standing near Pastor Ed holding a silver coloured knife that was rectangular in shape. He turned his face in her direction. She could clearly see that it was Pastor Ed’s son. Ms Chu said he hit Pastor Ed in the head three to four times. The sound was really loud. Pastor Ed fell to the ground. Pastor Ed’s son ran out of the door. Ms Chu grabbed the children around her who were crying and upset. She saw that Pastor Ed had cuts on his head and that there was a lot of blood near him.
A number of other witnesses describe seeing Mr Paauwe hit his father after they opened their eyes.
As mentioned, Mr David Weng was the pastor conducting the service. He stood at the front of the hall facing the congregation. He gave a statement that he saw Mr Paauwe, whom he knew, hitting Edward Paauwe to the top of his head and to the side of his face about four times using a silver meat cleaver. He said that each blow was very forceful and deliberate, and that Mr Paauwe said nothing in the course of delivering those blows. He did not even look up. He said the congregation had at this time also turned to look at the attack and had begun to yell and scream at Mr Paauwe. He recalled that Mr Paauwe was wearing a black t-shirt with a ‘Captain America’ motif on the front and dark coloured shorts.
Mr Ming Pong Ng attended the service with his wife, Ms Chu. He said he heard some shouting and someone saying “No” from the front of the room. He looked in the direction of the noise and saw a man with no hair standing next to Pastor Ed holding a square knife in his hand. He was holding the knife with both hands and chopped a few times down on Pastor Ed’s head. Pastor Ed fell to the ground. The man moved back and Pastor David was telling him to leave. He said the man was holding a backpack. He saw him put the square knife in the backpack. The man left.
Ms Sharon Foong was sitting next to Lehia Paauwe. She had her eyes closed in prayer at the material time. She heard a chopping sound to her right and heard someone screaming. She opened her eyes to see Pastor Ed collapsing to the floor. She saw that Pastor Ed had injuries to his head from which he was bleeding. She saw a man standing near Pastor Ed holding a chopper that had blood on it. The man, who she did not recognise, held a knapsack in his left hand. He tried to hit Pastor Ed as he was on the ground but Lehia blocked the blow with her right arm, shouting “No” quite loudly. The man who was attacking Edward Paauwe then said “Leave him alone”. She was not sure what happened next as there was so much going on. The next thing she knew the police were there.
It is unnecessary to further recount the content of statements provided by other members of the congregation. The statements are largely consistent.
The service was being recorded using a camera situated at the rear of the room. I have watched the footage.[4] Mr and Mrs Paauwe are sitting to the right but only Mrs Paauwe can be seen on-screen. Approximately seven minutes and fifteen seconds into the service the sounds of the blows delivered by Mr Paauwe can be heard. Mr Paauwe is not visible. Pastor Weng reacts quickly and heads to his left and offscreen (to the right of screen as one views it). Lehia Paauwe can be seen to stand and turn to her right. Those around her also react. Mrs Paauwe can clearly be seen to fend off a blow directed at her husband. She steps back. As the congregation steps back from the attack, Edward Paauwe can be seen sitting in his chair, leaning to his left. He is struck a hefty blow to the right side of his head with a meat cleaver. The attacker cannot be seen. Edward Paauwe falls to the floor. A man in a short sleeved blue shirt sitting behind Mr and Mrs Paauwe picks up a chair and can be seen using it to fend off someone to the right of screen.
[4] Exhibit P11.
The police were called. In the vicinity of the room in which the service was held police located a black backpack. In it was two knives one of which was a meat cleaver. It had blood stains on it.
The police quickly ascertained that Mr Paauwe had attacked his father. He was arrested later that day by Detective O’Malley after being found in the garden shed at his home address. Soon after locating Mr Paauwe, and while at his home, the police activated a video camera for the purposes of recording the administration to Mr Paauwe of his arrest rights. The following is recorded:
O’MALLEY:Now David we’re investigating an incident that happened earlier today at Garden Terrace in MAWSON LAKES at about Three PM (15:00)
PAAUWE:Yes.
O’MALLEY:Where a person by the name of
PAAUWE:It was me
O’MALLEY:Edward.
Ok, just hang on one sec.
Edward PAUWEE was seriously injured during an incident alright.
PAAUWE:Ok.
O’MALLEY:So at this stage you’re going to be placed under arrest
PAAUWE:Sure
O’MALLEY:For Attempted Murder.
PAAUWE:Sure.
O’MALLEY:Do you understand that?
PAAUWE:Yes.
O’MALLEY:Now I’m going to be asking you some questions in relation to that, you’re not obliged to answer them.
PAAUWE:Sure.
O’MALLEY:But anything you do say may be given in evidence.
O’MALLEY:Do you understand that?
PAAUWE:Yes Sir.
O’MALLEY:What do you understand by that?
PAAUWE:Um I’m like, I think I’m guilty, of guilty, if the guy died then I’m guilty of murder but I think he’s Satan the dude’s Satan so I got to get rid of him.
Subsequently when Mr Paauwe was interviewed at the police station the following interchange occurred:
O’MALLEY:Are you able to tell me what happened earlier today?
PAAUWE:Well I’ve been planning to kill him.
And I thought the best way would be to chop him with a meat cleaver.
I’ve done this before by the way, I’ve done this before.
I thought somebody was The Devil, that was in Nineteen, Ninety Eight, or Nineteen Ninety Nine (1998 or 1999). That was at the Afton (inaudible) Hotel, somewhere near the city, South Terrace or something.
O’MALLEY:Mm.
…
PAAUWE: So, so look I just, I was just, I know that my Dad, he wasn’t just one of the, one of the regular devils, he wasn’t just in the inner circle of devils, I believe my Dad was Satan himself. I believe my Dad was Satan himself.
So he needed to be, he needed to be you know, I’m Jesus’, I think I’m Jesus’ bodyguard kind of thing you know and yeah, it just had to be done man. It had to be done.
O’MALLEY:Why did it have to be done?
PAAUWE:Because, because God was having trouble in Heaven. They’re trying to take over Heaven. The Devils are trying to take over Heaven so they need it to be done.
Mr Paauwe also told the investigating officers that he had started thinking about killing his father over the last couple of weeks. He repeated that his father was Satan and needed to be eradicated. When advised that his father was alive in hospital, he said, “that’s a bit of bad news”, and explained that he had hoped he was dead. He told the officers how he had waited for the congregation to have their eyes closed in prayer before he “whacked” him at least three or four times to the head. He commented that his mother had tried to protect his father. He took the meat cleaver and a knife with him in his backpack as he was planning to use the knife to cut his father’s head off. However, there were too many people around and so he “only chopped him a few times” and “didn’t have the opportunity to cut his head off”.
Mr Paauwe said the cleaver and knife came from his kitchen. He had “three, four maybe five chops” to his dad’s head and then he ran away. When asked what caused him to stop, he explained that it was because “everyone was crowding around me”. If he had had the opportunity, he explained, he would have sawn his father’s head off. He said that he gave it his best shot to kill Satan. He admitted that he was wearing his ‘Captain America’ t-shirt at the time.
Edward Paauwe suffered multiple lacerations to his scalp and a depressed skull fracture. His injuries required surgical intervention.
It is unnecessary to further summarise the evidence contained in the material tendered. It largely corroborates in one way or another the eye-witness accounts to which I have referred. Mr Paauwe’s account is consistent with the eye-witnesses’ statements and what can be seen on the camera footage.
I find beyond reasonable doubt that Mr Paauwe struck his father, Edward Paauwe, a number of forceful blows to the right side of the head with a cleaver. I am satisfied beyond reasonable doubt that those blows constituted an act or a series of acts which, if accompanied by an actual intent to kill Edward Paauwe, would be sufficient to sustain a conviction for the offence of attempted murder. I am, therefore, satisfied that the objective elements of the offence of attempted murder with which Mr Paauwe is charged have been proved beyond reasonable doubt.
I turn to the question of Mr Paauwe’s mental competence to commit the offence with which he is charged.
Background to the Offending
Mr Paauwe is 47 years of age. He was first diagnosed as suffering from Schizophrenia in 1996 when he was detained and admitted to Glenside Hospital after presenting at the Royal Adelaide Hospital seeking to be castrated. Upon being discharged he was managed as a psychiatric outpatient until leaving to travel with his family to the United States in 1998.
En-route to the United States the Paauwes spent a month in Singapore. Whilst the family was in Singapore Mr Paauwe attended a church camp in Indonesia. During the camp he formed the view that one of the men in attendance was the devil. He wanted to kill this man. For two days he thought about how he would do so. He armed himself with a knife, but subsequently threw it away, fearing that it may be used on him. Eventually he attacked the man, punching him four times to the head before running off. His father and friends took him to a hospital in Indonesia where he was medicated. He was then taken back to Singapore where he was admitted to a psychiatric hospital for a week.

The Paauwes then travelled via Europe to the United States. Whilst staying in Philadelphia Mr Paauwe was admitted to a psychiatric hospital where he remained for two to three weeks. He was treated with an anti-psychotic medication. Upon his discharge he returned to South Australia and took up residence at the Afton House Hostel.
Mr Paauwe had been at Afton House for two months when he started to think that one of the other residents was the devil. On the morning of 16 April 1999 during the breakfast service in the dining room at the hostel, Mr Paauwe took up a “small chopper” and struck the resident to the back of the head once before running out. A short time later he was arrested and not long after that he was detained at Glenside Hospital. He was 28 years old at the time.
Subsequently Mr Paauwe was charged with attempted murder and, in the alternative, with wounding with intent to do grievous bodily harm. He was found not guilty of attempted murder on the grounds of mental incompetence and declared liable to supervision.
Mr Paauwe spent 23 months in James Nash House and a further 23 months at The Glen. He was discharged from The Glen in February 2003. That was the last time, prior to his being arrested in 2016, that he was hospitalised. Since 2003 his illness has been medically controlled to the extent that for the twelve years preceding his arrest he was employed as a nurse at the Lyell McEwin Hospital.
For the two years prior to his arrest in 2016 Mr Paauwe had been in the care of a psychiatrist near Elizabeth Grove. As at March 2015 Mr Paauwe was prescribed Clozapine, an anti-psychotic medication. The dose prescribed was 300 mg taken at night. In January 2016 the dose was reduced to 275mg, then 250 mg in February and to 225 mg in March. Mr Paauwe’s schizophrenia was noted by the treating psychiatrist as being in remission with no active symptoms such as hallucinations, delusional ideas, or thought disorder. In June 2016 Mr Paauwe’s dosage was reduced to 200 mg and again it was noted that no psychotic symptoms were present. In July Mr Paauwe’s dosage was reduced again and he was advised, as indeed he had earlier been advised in June, to arrange an early appointment should he detect any change in his mental state.
The reduction in Mr Paauwe’s medication was precipitated by complaints made by him of side effects. The dosage was decreased further in November 2016 to 150 mg at night. On 8 December 2016 Mr Paauwe consulted his treating psychiatrist for the last time prior to his attack upon his father. The psychiatrist’s notes record “no psychotic symptoms”.
On 9 December 2017, Mr Paauwe visited his friend Dr Michael Lee, a general practitioner, at the doctor’s practice though not as a patient. Mr Paauwe told his friend that his, Mr Paauwe’s, dad was evil and the devil. In his statement, Dr Lee said that he recalled Mr Paauwe saying something about his mum which was not demeaning, but was “just neutral”. He thought this was unusual as Mr Paauwe was very close to his mother. He reported that Mr Paauwe told him that his medications had been reduced. Mr Paauwe told Dr Lee that he did not believe he was psychotic as he could function normally at work and was a very reasonable person. Mr Paauwe appeared normal and calm and Dr Lee did not see any indications that concerned him.
On 10 December 2016, Mr Paauwe sent an email to his mother stating:
Hi Mama
Dave here
how are you?
I hope all is well
I have something to tell you
it probably hurts me more than it will hurt you –
I have decided not to associate with you and Papa any more
I don’t like being around Papa
And I think I get bad luck when I am around him
bye for now
love
David
The email was a surprise to both of his parents and they became concerned about his mental health. Prior to receiving the email Edward Paauwe thought everything was fine and was not aware of any other issues leading up to the incident. In fact, Mr Paauwe had visited Victor Harbour with his parents for a few days in early December. Both his mother and father reported that he had acted normally, although his mother said he looked tired.
Lehia Paauwe replied to the email. Edward Paauwe thought that this was better bearing in mind the content of the email. She did not receive a response. On 22 December 2017, after returning from a nine day holiday to Myanmar, Lehia called Mr Paauwe’s psychiatrist to discuss her concerns about her son’s mental health. The psychiatrist was on leave and could not be reached.
The Psychiatric Reports
As indicated, reports from two forensic psychiatrists, Drs Nguyen and Raeside, were received in evidence. It was not disputed that Drs Nguyen and Raeside are experts in the legal sense nor that the opinions contained in their reports were within the field of their expertise. I do not pause, therefore, to set out their qualifications and expertise. I record, however, that I am satisfied that the opinions expressed by each psychiatrist did not trespass beyond their field of expertise.
Dr Nguyen
Dr Nguyen interviewed Mr Paauwe in James Nash House on 5 April 2017 and again on 16 August 2017. At the time of the first interview Mr Paauwe’s medication (Clozapine) had been increased to 400 mg daily after he was assessed as having experienced a psychotic relapse of his schizophrenia consequent upon the reduction in his medication. The reports provided in relation to both interviews conclude that Mr Paauwe was mentally incompetent to commit the offence of attempted murder.
Dr Nguyen recorded Mr Paauwe’s mental health history in terms not materially different to that set out above.
When first interviewed by Dr Nguyen Mr Paauwe did not present with any thought disorder, delusional thoughts, or perceptual disturbances. His affect was considered euthymic and his cognition, whilst not formally tested, appeared to Dr Nguyen to be “grossly intact”.
Mr Paauwe denied using illicit drugs around the time of the offence. He said he had been compliant with his prescribed medication (i.e. 150 mg Clozapine daily).
Mr Paauwe reported to Dr Nguyen that he started noticing psychotic symptoms 4-6 weeks prior to Christmas day. These symptoms included thoughts that a watch his brother gave him contained a camera and a tracking device which was able to control him. He thought his brother was working with his father and that there was a nuclear war coming. He reported buying $260 worth of groceries in response to the risk of nuclear war but in cash because if he used Eftpos the beast would control him.
Dr Nguyen also records that around the time of the alleged offence Mr Paauwe experienced thoughts that the television could read his “brainwave thoughts” and that if he listened to music next to his digital television the beast could control his thoughts. Mr Paauwe also reported thinking about “Doomsday Preppers” and what to put in a bunker. These thoughts were connected to his preparation of his garden shed which he then used as a hideout after attacking his father. He had cleaned the shed out and moved in his bed, table, computer and groceries. He also left room for his motorcycle.
Dr Nguyen reports:
Mr Paauwe said that one week prior to the alleged offence he had planned to kill his dad. He said that he believed that his father was a very evil person for approximately six weeks with progressively increasing intensity. He said that he thought that his father “was the beast, false prophet, antichrist, Satan”. Leading up to the offence Mr Paauwe said that he felt threatened by his father. He said he thought his father would suffocate him and his cat as well. He said that he became significantly fearful. He added that “if it was me [being harmed] that would be okay. If it was my cat – I love my cat!” He said that he believed that his father was an evil man leading people down the wrong path. He recalled thinking that “it was me or him and therefore I decided to kill him”. This occurred a week prior to the subject offence.
Mr Paauwe said that he attacked his father on Christmas Day. He described to me the planning that went into the commission of the offence. He said that he had already been to the church the day before where he inspected the area. He said that he would have to change his clothes and plan an escape route.
On the day of the offence, Mr Paauwe said that he got to church 30 to 40 minutes prior to the service. He said that he parked his bike in the parking bay around the church. He put a bag of clothes into under (sic) the strap of his seat. He placed a change of shoes underneath a nearby tree. He said that he dressed himself with a change of clothes underneath his top layer. He carried a meat cleaver and a serrated knife in his backpack. He said that he planned to “chop dad with a cleaver”. He said that he would subsequently “cut his head off with a serrated knife when he passed out”. Mr Paauwe said that he would have shot his father in the head if he had a gun but did not know where to get one from.
[emphasis in original]
Mr Paauwe admitted waiting until the congregation bowed their heads and closed their eyes in prayer before striking. He then said that he proceeded to strike his father four to five times. Due to the commotion that erupted he was unable to complete his plan. He fled, initially on foot and then by motorcycle. He went back to his home where hid in his garden shed. He did not expect the police to find him there.
In his first report Dr Nguyen expressed the following opinion:
At the time of the alleged offence, there seems to be significant evidence that Mr Paauwe was experiencing a psychotic relapse of his schizophrenia. This appears to be precipitated by a gradual reduction of his Clozapine over approximately 12 months. His psychotic symptoms were characterised by persecutory and religious delusions and in particular that his father was evil and satanic. He also began to form the belief that his father wanted to suffocate him and his cat. He believed that if he did not kill his father, he would be killed himself. Based on these delusions, he decided to act out to commit the alleged offences.
Therefore on the basis of these delusional beliefs, I opine that Mr Paauwe was unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions. There is no evidence to suggest that he was unable to know the nature and quality of his actions nor be unable to control them. There is evidence to suggest that there was a significant amount of planning prior to the commission of the offence. However, Mr Paauwe’s delusional thinking was the most striking feature of his presentation and his ability to be insightful and reason about the wrongfulness of his actions were severely impaired.
Dr Nguyen’s addendum report, dated 16 August 2017, was prepared upon his subsequent receipt of the witness statements compiled by police and after his review of the recording of Mr Paauwe’s arrest and interview with police. Dr Nguyen said:
Mr Paauwe’s presentation during the arrest (MAH00015.mp4) is indicative of his psychotic episode at the time with persecutory delusions and thought disorder. When he was explained his arrest rights, he responded unusually that “I think I died and I’m guilty of murder. But I think he’s Satan. The dude is Satan. So I’ve got to get rid of him.” (approx. 1 minute 30 seconds). I also noted him to preservative regarding his concern about the welfare of his cat (sic). He was also presenting as overfamiliar by often relating to the police as “bro” and “mate”. He occasionally complained that he was not really paying attention, which was possibly attributable to a degree of thought disorder. He also appeared to be unusually interested in the officer’s wristwatch and enquired inappropriately “That’s a Casio watch or a Citizen?” He also presented as jovial in his conversation with the police. He also was disinhibited when he was searched by the police (approx. 1 hour 16 minutes) and said to the officer “You can stroke my cock, I don’t care.”
During the interview at the police station (MAH09000.mp4 and MAH00001.mp4) Mr Paauwe presented as odd, disinhibited and overfamiliar with the police officers. He was observed to shift his gaze around often and attempted to engage the officers in trivial conversation. During the interview, Mr Paauwe also told the police interviewing officer that “I’ve been planning to kill him. I thought the best way was to chop him. I’ve done it before in ‘98, ‘99.” He also stated that his dad was not a regular devil and that he “believed he was Satan himself” and he thought that he was Jesus’ body (sic) and “it just had to be done, man. It had to be done.” He later explained that a motivation to commit the offence was “Cause God may have trouble in heaven. They’re trying to take over heaven. The devils are trying to take over heaven. So it needed to be done.” These are some of the examples of Mr Paauwe’s delusional beliefs during the interview which also were similar to what he had reported to me in my initial interview with him.
[emphasis in original]
Dr Nguyen considered that the statements and recordings affirmed his original opinion, namely, that at the time of attacking his father Mr Paauwe suffered persecutory delusions regarding his father “which rendered him unable to know the wrongfulness of his actions with a moderate degree of sense”.
Dr Nguyen prepared his third report, in an email format, after reviewing clinical notes prepared by the psychiatrist responsible for the care of Mr Paauwe at the time of his offending. Dr Nguyen observed that the notes did not identify any psychotic symptoms upon review of Mr Paauwe on 8 December 2016 just prior to the alleged offence. He speculated that Mr Paauwe could have either attempted to conceal his symptoms or have lacked insight into them, or might not have been asked questions about them. In any event, Dr Nguyen confirmed that Mr Paauwe reported to him that he started noticing symptoms 4-6 weeks prior to the commission of the alleged offence.
Dr Nguyen noted that there was a corroborated account of Mr Paauwe’s unusual behaviour before the offence in the statements made by his parents which, in his view, made it very probable that Mr Paauwe was experiencing a psychotic episode that was assessed and treated at James Nash House after the offence. He maintained that, despite the content of the treating psychiatrist’s notes, Mr Paauwe was mentally incompetent to commit the offence.
Dr Raeside
Dr Raeside was generally in agreement with Dr Nguyen’s observations and opinions. He concluded that Mr Paauwe was mentally incompetent to commit the offence of attempted murder because he was unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions because of the weight of his psychotic thinking at the time.
At the commencement of his report dated 18 August 2017, Dr Raeside advised that he had prepared a report with respect to Mr Paauwe’s mental state in 1999 when Mr Paauwe was also charged with attempted murder. That offending occurred in “very similar circumstances to the current matter”. On that occasion Mr Paauwe was found mentally incompetent to commit the offence. Dr Raeside said:
Reference to my earlier reports note that he began to believe that white paint on the road was actually “God’s blood”. He had a habit of reading words backwards, which gave them different meanings that had significant meaning to him. He began to believe that the victim at that time (a resident of a boarding house) was Satan “because whenever I was around him I would get chills”. He believed that the man had raped a young girl and killed her in the carpark next to the hostel where they were staying and had subsequently hidden her body in a black garbage bag.
And:
…It is also worth noting a similar, but slightly different serious offence in 1999 in which he was initially charged with wounding with intent to do grievous bodily harm by attacking a fellow hostel resident with a meat cleaver based on religious delusional beliefs, particularly that the other resident was Satan.
When interviewed by Dr Raeside Mr Paauwe reported that he started having delusions a couple of weeks before the attack. Dr Raeside noted that he had previously said they started probably several months before, at least in the initial stages. Like in his interview with Dr Nguyen, Mr Paauwe reported a number of different delusions leading up to the alleged offending. He said he thought that a Casio watch that his brother gave him had a tracking device in it and that his father was the “antichrist, a false prophet and Satan.” He reported that he would not look into a mirror for about six weeks prior to the offence because he thought that “somehow my Dad was accessing what I saw in my reflection, like a photographic memory, my Dad could see what I was looking at.” Mr Paauwe reported that this continued during the initial few weeks that he was in James Nash House.
As to his discussion with Mr Paauwe about the attack upon his father Dr Raeside reported:
…there is a significant disconnect in Mr Paauwe’s mind between the actual nature and seriousness of this attack on his father and his views about it in his own mind. He seems to have only recently accepted that his thinking might have been distorted and that he should not have acted the way he did, but has no emotional context or connection to it at present. Indeed both at the time of the police interview and at the time of my interview he showed more concern about his cat than he did about his father.
With respect to the question of whether Mr Paauwe suffered from a mental impairment at the time of the alleged offending, Dr Raeside reported:
Mental Impairment
There is clear documentary evidence to support that Mr Paauwe has had a mental impairment and was suffering from a mental impairment at the time of the alleged offending. As noted, there is extensive past documentation supporting a diagnosis of Chronic Paranoid Schizophrenia as far back as 1997 when he was first admitted to Glenside Hospital. Significantly, his psychotic symptoms are often of a religious, grandiose, or sexual nature and this has been a consistent pattern at times of relapse of his psychosis.
After noting the historical evidence of Mr Paauwe’s condition, Dr Raeside considered the “more relevant” question was what contemporary evidence was available of a decline in Mr Paauwe’s mental health in the lead up to the alleged offence. In this regard, he noted the progressive reduction in Mr Paauwe’s antipsychotic medication during 2016. Mr Paauwe reported that the reduction was to combat drowsiness he was experiencing in the morning. For twelve years Mr Paauwe had been prescribed 300 mg of Clozapine and was stable, but this had been gradually reduced during 2016 to 150 mg. Dr Raeside also referred to the email sent by Mr Paauwe to his parents on 10 December 2016, a message he had sent to an estranged friend “out of the blue” stating that he had been assaulted in the city, and Mr Paauwe’s presentation in his record of interview with police. Dr Raeside said:
…in terms of Mr Paauwe’s mental state around the time of the alleged offences, I would refer to the actual interviews between Mr Paauwe and police. He makes a number of religious, sexual, and grandiose comments that are clearly delusional in nature. There are also unusual features, such as his preoccupation about the cat in contrast to concerns about the alleged offence. He displays a disinhibited, elevated manner, attempting to engage police in rather trivial matters, such as “anything interesting on the news today?” He displays a degree of psychotic thought disorder, with tangentially and some referential thinking, such as when learning that one of the police officer’s first name was Adam he immediately began talking about various religious associations with the name Adam. He appears sexually disinhibited, such as during a discussion about the handcuffs with Mr Paauwe telling police “you can stroke my crotch. I don’t care”.

Dr Raeside’s report of 1 November 2017 makes clear that his first report was prepared without viewing the footage of Mr Paauwe’s arrest and interview with police. Having the benefit of viewing that footage, and thus of seeing Mr Paauwe’s mental state at the time of his arrest rather than drawing conclusions from the transcript of the interview, he reported that Mr Paauwe:
…presents as unemotional and matter of fact, except when he appears to become distressed talking about the loss of his cat Casio. He is not depressed or elevated in mood. He is not anxious. This is obviously in stark contrast to his frank comments about intending to kill his father and attacking him. As noted previously, he expresses a range of markedly bizarre religious, grandiose and paranoid delusional ideas centred around his father being Satan and needing to be killed. He does not demonstrate psychotic thought disorder or appear to be responding to any hallucinations.
Dr Raeside considered that the footage did not cause him to alter the opinions he had previously expressed. That said, Dr Raeside qualified his view about Mr Paauwe possibly being sexually disinhibited because the statement in the transcript that Mr Paauwe made permitting the officer to stroke his crotch may have been, “you can touch my crotch”. Mr Paauwe may have been giving his permission for a police officer to touch him as part of any search.
Returning to his report of 18 August 2017, Dr Raeside concluded:
Knowledge of the Wrongfulness of the Actions
This is clearly the most potentially contentious aspect of the mental impairment test. As noted, I believe there is clear evidence that Mr Paauwe was mentally ill, but that he was able to know the nature and quality of his alleged actions. He also appears to have known the wrongfulness of his actions, at least the legal wrongfulness, or how other people might view it. The most obvious example of this is that in his planning he also planned his escape and ways to evade the police subsequently. He clearly displays a knowledge that police would be involved and even that he expected to go to jail should he be apprehended. He discussed with police about creating a hideout out of the bunker, hoping police would not look there when they came to his house. He refers to dressing in a way that he could remove his outer clothing “because I was trying to make a getaway … if they reported to the police that somebody was wearing, you know, a black t-shirt with orange sneakers, and then I was wearing a white t-shirt with blue sneakers, then I wouldn’t get caught”. He adds “I knew the police would come over eventually” and makes some comments about not wanting the police to break down the door leading to his cat escaping.
However, in my view, it is also quite apparent from Mr Paauwe’s comments to police that notwithstanding his knowledge of the legal wrongfulness, that police would be involved and try to apprehend him, he also believed that he was both morally and religiously justified in acting as he did. In other words, he believed that he was acting out of a higher good because he believed that his father was the devil and he had some religious sanction to get rid of him. He clearly states that he hoped he had died and explained that it would be a problem if he was still alive.
His reasoning also appears to be impaired, such as his preoccupation about the cat rather than his father. As noted, he acknowledged that is was a “nasty thing”, but repeatedly said he “had to do it”. Indeed, he tells police “now it’s finished and I have, I feel free. It’s all over and done with so I give, I gave it my best shot … I gave it my best shot to kill Satan and now it’s up to the rest of whoever wants to kill him, well that’s up to them, but I’ve done my best shot, I’ve let people know that my dad was evil, evil” (sic). As noted, there are contemporary accounts prior to the incident in which Mr Paauwe referred to his belief that his father was evil.
As noted, Mr Paauwe appears to have experienced a range of delusional beliefs and interpretations to words in the Bible, and elsewhere, as well as perceptions of his father’s behaviour, that led to his increasing delusional belief about his father being evil and the devil himself. Additional to his thoughts he also refers to “very uncomfortable feelings in my body”. He refers to his initial thoughts that his father was “bad luck”, that perhaps should be seen in its Chinese context, which would be more serious than might otherwise be used in general conversation. He tells police “a bit later it developed that I needed to kill him, so I just went through with it”. When asked by police who was telling him that he needed to kill his father he had difficulty explaining and simply said “it’s just how I felt … you know. Things were coming together”. He then added that he believed his father might be a rapist, again he “just had a feeling that he might be a rapist as well … and I think rapists they, they deserve to die, they should be given the death penalty”.
In my view, notwithstanding clear indication that Mr Paauwe had a superficial understanding that his actions might be considered wrong legally, he also appears to have believed on higher spiritual grounds that his actions were right and justified and even after the fact told police that he felt liberated by doing it, having done his best. This is also consistent with his complete indifference at the time to the impact of his actions, not only on his father, but also his mother and the numerous people who witnessed the incident.
I would add that notwithstanding his plans to change clothing, the fact that he committed the act in front of a large group of people, most of whom knew him, would not ordinarily be the best way to evade detection. Likewise, his “hideaway” was not particularly sophisticated as an effort thinking police would not search there. Nevertheless, the lack of sophistication does not necessarily indicate the presence or lack of knowledge of the wrongfulness of actions, but I believe it is consistent with his overwhelming delusional beliefs leading to his actions based on those delusional beliefs.
In my view Mr Paauwe was unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions because of the weight of his psychotic thinking at the time.
[emphasis in original]
As with Dr Nguyen’s email, Dr Raeside’s third report of 24 November 2017 was prepared following receipt of Mr Paauwe’s treating psychiatrist’s notes. Those notes record that the psychiatrist did not observe any outward signs of psychosis such as perceptual disturbances, delusional ideas, or psychotic thought disorder in her reviews of Mr Paauwe prior to Christmas day 2016. Dr Raeside remarked that the notes of 8 December 2016 immediately prior to the offending simply state “no psychotic symptoms”.
Like Dr Nguyen, Dr Raeside concludes that the notes do not change his opinion that Mr Paauwe was mentally incompetent to commit the offence with which he is charged. Dr Raeside referred to the contemporary accounts of a decline in Mr Paauwe’s mental health in the lead up to Christmas day. He notes that even Dr Lee, a close friend and a medical practitioner, did not see any “indications that would concern me”. Dr Raeside states that Mr Paauwe told him that it was not until about a week prior to the alleged incident that he formally started thinking about killing his father. This is consistent with Dr Nguyen’s interview. Dr Raeside was of the opinion:
… that Mr Paauwe began to experience a number of delusional ideas during the course of 2016, likely in association with a relapse of psychosis secondary to the reduction in the Clozapine dose. It is my view that this was a fairly precipitous decline, to half the dose within a few months, and it is not surprising that he began to experience psychotic features again. However, in this particular case, the primary psychotic features appeared to be the development of delusional ideas (much as with his previous offence) and not necessarily showing outward signs of deterioration, such as marked thought disorder or responding to auditory hallucinations, again consistent with his previous history.
…
In my view, the reduction in Clozapine (ostensibly to minimise some of the side effects) should have been done much more slowly and cautiously, allowing time to observe any early signs of relapse of psychosis prior to a further reduction in dose. Even so, it would have been difficult to identify these early signs given Mr Paauwe’s lack of insight, and thought disorder that only come at a latter stage once the delusional ideas have already become prominent.
Was Mr Paauwe mentally incompetent to commit the offence?
Section 269D CLCA provides that a person is presumed to be mentally competent to commit an offence unless the person is found, on an investigation under Part 8A Division 2 CLCA, to have been mentally incompetent to commit the offence. Section 269C CLCA provides that a person is mentally incompetent to commit an offence if, at the time of engaging in the conduct comprising the objective elements of the offence, the person was suffering from a mental impairment, and, in consequence of that mental impairment, did not know the nature and quality of the conduct, or, that the conduct was wrong, or, was unable to control the conduct.
Mental impairment is defined in s 269A(1) of the CLCA as including a mental illness, an intellectual disability or a disability or impairment of the mind resulting from senility, but does not include intoxication. A person suffers a relevant mental illness where they suffer a pathological infirmity of the mind, including such infirmity that is only of temporary or short duration.[5]
[5] Criminal Law Consolidation Act, 1935 (SA), s 269A(1).
There is no doubt here that Mr Paauwe has long suffered from a mental impairment – Schizophrenia. It is not suggested that his mental impairment meant that Mr Paauwe was unable to control his conduct. Thus the real question is whether, as a consequence of his schizophrenia, Mr Paauwe did not know the nature and quality of his conduct at the time he attacked his father, or, did not know that that conduct was wrong.
Neither Dr Nguyen nor Dr Raeside conclude that Mr Paauwe did not know that his conduct was wrong. However, both are satisfied that Mr Paauwe was unable to reason with a moderate degree of sense and composure that his conduct was wrong. In R v Willoughby (No 3)[6] I considered the meaning of the phrase “does not know that the conduct is wrong” in s 269C(b) CLCA. I said:
The language used is that of Dixon J in The King v Porter. In that case, Dixon J, in a summing up including instruction on the application of the M’Naghten rules, said to the jury:
The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the issue, the real question in this case. Was his state of mind of that character? I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about, and it is very difficult to be quite clear as to what is meant in describing mental conditions. I have used the expression “disease, disorder or disturbance of the mind.” That does not mean (as you heard from the doctor’s replies this morning to certain questions I asked him) that there must be some physical deterioration of the cells of the brain, some actual change in the material, physical constitution of the mind, as disease ordinarily means when you are dealing with other organs of the body where you can see and feel and appreciate structural changes in fibre, tissue and the like. You are dealing with a very different thing—with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression “know,” “knew that what he was doing was wrong.” We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged. In considering these matters from the point of view of fact you must be guided by his outward actions to a very large extent. The only other matter which can help you really is the medical opinion. I think the evidence may be described as his outward conduct and the medical opinion. It is upon this you must act. The medical opinion included explanations of the course of mental conditions in human beings generally.
I appreciate that I am here concerned with the application of s 269C(b) and not the M’Naghten rules. However, Parliamentary Counsel has chosen in s 269C(b) and (c) to use terminology that has, in relation to the question of mental incompetence, an established meaning. In those circumstances, I think it the case that the established meaning is the intended meaning. Nothing in the text of s 269C or the context of Part 8A more generally suggests otherwise.
[footnotes omitted]
[6] [2018] SASC 6 at [47].
I remain of this view.
No reason arises to reject the reports of Drs Nguyen and Raeside, I accept them and the opinions expressed in them.
I am satisfied that Mr Paauwe’s mental health declined during 2016 following the progressive reduction of his medication to half of the dose that had stabilised his condition for approximately 12 years. I am satisfied that at the time of striking his father, Mr Paauwe was experiencing persecutory delusions that his father was Satan.
I note that Mr Paauwe’s treating psychiatrist did not observe Mr Paauwe to have any psychotic symptoms as late as 8 December 2016. The treating psychiatrist’s view did not cause Drs Nguyen or Raeside to waiver in their opinions that Mr Paauwe was mentally incompetent to commit the offence. Both Drs Nguyen and Raeside point to evidence supporting their opinions, namely, the email Mr Paauwe sent to his parents, Mr Paauwe’s conduct upon visiting Dr Lee, and his presentation as evident in the police recordings of his arrest rights and interview.
On the evidence tendered, and accepting the opinions of Drs Nguyen and Raeside, I am satisfied that Mr Paauwe was suffering psychotic symptoms with increasing intensity for at least 4-6 weeks leading up to Christmas day 2016. I am satisfied that at the time he attacked his father it is more likely than not that Mr Paauwe did not know that his conduct was wrong in that, due to his psychotic state, he was unable to reason with a moderate degree of sense and composure that his conduct was wrong.
In the circumstances I am satisfied that it is appropriate to terminate any further enquiry into Mr Paauwe’s mental competence to commit the offence with which he is charged. I am satisfied that it is appropriate to record a finding that Mr Paauwe was mentally incompetent to commit the offence of attempted murder on 25 December 2016.
Orders
I find Mr Paauwe not guilty of the attempted murder of Edward Paauwe by reason of his mental incompetence and declare him liable to supervision under Part 8A CLCA.