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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Paauwe

Details

AGLC: R v Paauwe [2018] SASC 42
Case: [2018] SASC 42
Decision Date: 4 April 2018

CaseChat Overview and Summary

The case of R v Paauwe was heard by the Supreme Court of South Australia. The appellant, Mr Paauwe, was charged with attempted murder and wounding with intent to do grievous bodily harm, following an attack on his father during a church service. The central issue in the case was whether Mr Paauwe was mentally competent to commit the offence at the time of the incident. This determination hinged on whether Mr Paauwe had the capacity to understand the nature and quality of his act or if it was done by reason of mental disease or defect.

The court examined the legal framework for assessing mental competence, specifically under Section 269A of the Criminal Law Consolidation Act, 1935 (SA). The court distinguished between objective and subjective elements of the offence, concluding that the objective elements of attempted murder were met in this case. The evidence demonstrated that Mr Paauwe had carried out a series of acts directed towards fulfilling the objective of committing murder, which were more than mere preparation.

In delivering the judgment, the court concluded that Mr Paauwe had the requisite mental competence to commit the offence. Despite his history of schizophrenia, the court found that at the time of the incident, Mr Paauwe was in remission and not suffering from active psychotic symptoms. The court found that he was capable of understanding the nature and quality of his act and that it was not done by reason of mental disease or defect. Therefore, the court found Mr Paauwe guilty of the charges.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

HINTON J

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Ratio Decidendi

Legal Principle Established

Established by: HINTON J

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