R v Richards
[2025] SADC 72
•19 June 2025
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RICHARDS
Criminal Trial by Judge Alone
[2025] SADC 72
Reasons for the Verdicts of her Honour Judge Matteo
19 June 2025
CRIMINAL LAW - PARTICULAR OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM
The defendant is charged with one count of aggravated causing death by dangerous driving and three counts of aggravated causing harm by dangerous driving arising from her involvement in a multiple vehicle collision on the Port River Expressway at Gillman on 1 November 2022 ('the driving offences'). The defendant has pleaded guilty to four counts of leaving an accident scene after causing death or harm by careless driving. The defendant has raised a defence of mental incompetence in respect of the driving offences. At the time of the collision, the defendant was suffering an acute relapse of schizoaffective disorder characterised by persistent persecutory delusions.
The defence case is that at the time of the conduct alleged to give rise to the driving offences, the defendant was suffering from a mental impairment, in consequence of which she did not know that the conduct was wrong; that is, she could not reason about whether the conduct, as perceived by reasonable people, was wrong (per s 269C(1)(b) of the Criminal Law Consolidation Act 1935 (SA)).
The prosecution contends that for the purpose of assessing mental competence, the conduct which gives rise to an offence involving dangerous driving is the mere act of driving. The prosecution contends that the defendant has not displaced the presumption of mental competence in relation to the mere act of driving. In the alternative, the prosecution submits that the defendant has not established on the balance of probabilities that she did not know that her conduct in driving dangerously was wrong.
Held:
1. The conduct which gives rise to an offence of causing death or harm by dangerous driving is driving dangerously, not mere driving.
2. The defendant was mentally incompetent to commit the offences of aggravated causing death by dangerous driving (count 1) and aggravated causing harm by dangerous driving (counts, 2, 3 and 4).
Criminal Law Consolidation Act 1935 (SA) ss 19AB(1), 19AB(2), 19A(1), 19A(3), 269, 269A, 269B(1), 269C, 269C(1), 269C(1)(b), 269C(2), 269D, 269E(1), 269E(2), 269FA, 269FA(3)(a), Part 8A, referred to.
Schwark v Police (2011) 111 SASR 451; R v Coventry (1938) 59 CLR 633; Kroon v The Queen (1990) 55 SASR 476; Jiminez v The Queen (1992) 173 CLR 572; R v Cain (2011) 111 SASR 301; R v Kitt [2022] SADC 5; Masters v The Queen (2022) 102 MVR 223; R v Porter (1933) 55 CLR 182; Stapleton v The Queen (1952) 86 CLR 358; R v Childs [2023] SASC 103; Question of Law Reserved (No 1 of 2021) (2021) 140 SASR 135; Murphy (A Pseudonym) v The King [2023] SASCA 107, considered.
R v RICHARDS
[2025] SADC 72Overview
The defendant, Carlie Eileen Richards (‘the defendant’), is charged with eight offences arising from a multiple vehicle collision which she was involved in on the Port River Expressway at Gillman on 1 November 2022. The collision resulted in the death of Erica Kunimatsu Hoy and physical injuries being caused to Lisa Kunimatsu Hoy, John Michael Reader and Klio Mabel Bruckner. The defendant has pleaded guilty to four counts of leaving an accident scene after causing death or harm by careless driving contrary to ss 19AB(1)-(2) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) in relation to her admitted conduct in the immediate aftermath of the collision.[1] In relation to the collision itself, the defendant is charged with one count of aggravated causing death by dangerous driving contrary to s 19A(1) of the CLCA[2] and three counts of aggravated causing harm by dangerous driving contrary to s 19A(3) of the CLCA[3] (‘the driving offences’).
[1] Counts 5, 6, 7 and 8 on the District Court information (FDN23).
[2] Count 1 on the District Court information (FDN23).
[3] Counts 2, 3 and 4 on the District Court information (FDN23).
The defendant has raised a defence of mental incompetence in respect of the driving offences thus, by s 269E(1) of the CLCA, the question of her mental competence to commit the driving offences has been separated from the remainder of the trial. Pursuant to s 269E(2) of the CLCA, I determined it appropriate to proceed first with the trial of the defendant’s mental competence.
The defendant elected pursuant to s 269B(1) of the CLCA to have an investigation into her mental competence to commit the driving offences conducted by a judge sitting alone. The trial of the defendant’s mental competence to commit the driving offences proceeded in accordance with s 269FA of the CLCA.
The defendant’s mental competence to commit the driving offences is to be presumed unless she is found, on an investigation into that matter, to have been mentally incompetent to commit the offences.[4]
[4] Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) s 269D.
Section 269C(1) of the CLCA provides as follows:
269C—Mental competence
(1)A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; that is, the person could not reason about whether the conduct, as perceived by reasonable people, is wrong; or
Note—
Paragraph (b) adopts the test as stated and excludes from consideration whether the defendant could reason with a moderate degree of sense and composure as set out in R v Porter (1936) 55 CLR 182.
(c) is totally unable to control the conduct.
For the purpose of the investigation into the defendant’s mental competence to commit the offences, the defendant underwent an examination by a forensic psychiatrist, Dr Hoa Nguyen (‘Dr Nguyen’), who reported the results of his examination to the court and gave evidence. In summary, Dr Nguyen is of the opinion that at the time of engaging in the conduct alleged to give rise to the driving offences, the defendant was mentally incompetent as she was suffering from a mental impairment in consequence of which she did not know that the conduct was wrong.[5]
[5] CLCA s 269C(1)(b).
In this case, there is no dispute that the defendant’s driving which resulted in the collision on the Port River Expressway was objectively dangerous for she was driving at high pre-collision speeds. There is no dispute that at the time of undertaking that course of driving, the defendant was suffering from a mental impairment in the form of an acute relapse of schizoaffective disorder which was characterised by persistent persecutory delusions, in particular one about being followed by a small security vehicle. The issue in contest and for determination is whether, in consequence of that mental impairment, the defendant did not know that her driving conduct was wrong.
The defence case, based upon the evidence of Dr Nguyen, is that it is established on the balance of probabilities that the persistent persecutory delusions which were operating upon the defendant in consequence of her schizoaffective disorder rendered her incapable of knowing that her driving conduct was wrong, in the sense that she could not reason about whether the conduct, as perceived by reasonable people, was wrong (per s 269C(1)(b)).
The prosecution contends that, as the offence of causing death or bodily harm by dangerous driving does not require proof of an intention to drive dangerously, and the manner of driving is to be evaluated objectively, the mental element of the offence is a mere intention to drive. Therefore, in order to displace the presumption of mental competence to commit the driving offences, the defendant must establish on balance that the mental impairment consequence in s 269C(1)(b) attaches to her mere act of driving (or, driving simpliciter). The prosecution argument goes that the defendant cannot be found to be mentally incompetent unless it is established on balance that she did not know that her very act of driving was wrong, and that this question is to be addressed devoid of any consideration of the manner of her driving. If this is correct, the prosecution contends that Dr Nguyen supports a mental incompetence defence on the basis of a misunderstanding of the legal test for mental incompetence.
In keeping with the parties’ framing of, and approach to, the matter to be determined on the trial of the defendant’s mental competence to commit the driving offences, a preliminary issue to be determined involves identification of the conduct which gives rise to an offence of causing death or harm by dangerous driving. The issue may be framed in this way: what is the conduct in the form of a willed and voluntary act which gives rise to an offence of causing death or harm by dangerous driving, and to which a mental incompetence defence may apply? Is it driving dangerously or is it driving simpliciter (which happens to be dangerous)? In the context of this case, the issue for determination becomes whether, in order to displace the presumption of mental competence to commit the driving offences, the defendant must establish that in consequence of her mental impairment she did not know that her conduct in driving at high speed was wrong or that she did not know that her very act of driving (i.e. driving simpliciter) was wrong.
For reasons which I elaborate upon below, I consider that the conduct which gives rise to an offence of causing death or harm by dangerous driving is driving dangerously, not driving simpliciter (which happens to be dangerous). Therefore, in order to displace the presumption of mental competence and to be found to be mentally incompetent to commit the driving offences, the defendant must establish on the balance of probabilities that the persistent persecutory delusions which were operating upon her in consequence of the acute relapse of her schizoaffective disorder meant that she did not know that her conduct in driving at high speed was wrong, that is, she could not reason about whether that conduct, as perceived by reasonable people, was wrong.[6]
[6] CLCA s 269C(1)(b).
Before turning to that issue, it is convenient to commence with a summary of the evidence given in the trial.
Facts
The following facts were agreed:[7]
[7] Exhibit P1.
Dates of birth
1.The defendant, Carlie Eileen Richards, was born on 6 February 1984.
2.[…]
3.[…]
4.[…]
Overview of collision
5.At about 9.30 pm on 1 November 2022, the defendant, driving a green Holden Cruze (S606 BIE), collided with the rear of a red Toyota Prius (S339 AST) on the Port River Expressway. The collision occurred North-West of the Gillman Bridge.
The Port River Expressway
6.The Port River Expressway runs generally East-West. In the area of the collision, the Expressway runs North-East to South-West and consists of two South-West bound traffic lanes and two North-East bound traffic lanes. The South-West bound and North-East bound traffic lanes are separated by a raised centre median strip.
7.The collision took place in the South-West bound carriageway. The posted speed limit in the area of the collision was 60 kilometres per hour. There was overhead streetlighting for both directions of traffic. The roadway was made of bitumen and was in reasonable condition.
8.At the time of the collision, the roadway was wet but there was no rain falling. The weather was cool.
Lead-up to the collision
9.Immediately prior to the collision on 1 November 2022, Erica Hoy, Lisa Hoy and Michael Reader were travelling South-West in a red Toyota Prius (S339 AST) on the Port River Expressway. Lisa Hoy was driving the Prius, Erica Hoy was in the front passenger seat and Michael Reader was in the rear driver’s side passenger seat. Lisa Hoy was wearing prescribed corrective glasses. All three were wearing seatbelts. The car’s headlights were on low-beam, its windows were closed and the radio was off. Lisa Hoy was complying with the road rules, including the posted speed limit, and paying due care and attention.
10.Immediately prior to the collision on 1 November 2022, Klio Bruckner was driving a silver Kia Cerato (S841 CRR) North-East on the Port River Expressway. The car’s headlights were on low-beam, its windows were closed and the radio was playing music at a low volume. Klio Bruckner was complying with the road rules, including the posted speed limit, and paying due care and attention.
11.The defendant received a text message at 9.20 pm on 1 November 2022 which read, ‘Can U come too Shannon pls, got petrol price if U’. The defendant’s mobile phone was not being used to make or receive calls, or to send or receive text messages, at the time of the collision.
The defendant’s speed
12.Over a period of 13 seconds immediately prior to the collision, the defendant drove her Holden Cruze at an average speed of 157 km/h, covering approximately 567 metres. The defendant drove at between approximately 158 km/h and 171 km/h five seconds prior to the collision, and at between approximately 159 km/h and 172 km/h three-and-a-half seconds prior to the collision. At the point of collision the defendant was driving at a speed of between approximately 137 km/h and 148 km/h.
Collision dynamics
13.The front right corner of the defendant’s Holden Cruze collided with the rear left corner of Lisa Hoy’s Toyota Prius. The collision forced the Toyota Prius over the centre median strip and into the path of Klio Bruckner’s Kia Cerato. The front side of Lisa Hoy’s Toyota Prius collided with the front of Klio Bruckner’s Kia Cerato.
14.As a result of the collision between the Toyota Prius and the Kia Cerato:
i. The Toyota Prius collided with the front of a Kenworth B-Triple truck; and
ii. The Kia Cerato collided with a Toyota HiAce van.
Dash camera footage[8]
[8] Exhibit P4 (USB containing footage, including dash camera footage).
15.Ka Lok Li was driving a motor vehicle on the Port River Expressway at about 9.30 pm on 1 November 2022, heading West. Mr Li had a camera mounted to his dashboard which recorded the roadway ahead of him. He also had a camera facing rearward which recorded the roadway behind him. The rear-facing camera captured footage of the approach of the defendant’s car to the point of the collision. The forward-facing camera captured footage of the collision between the defendant’s Holden Cruze and Lia Hoy’s Toyota Prius and the vehicles’ subsequent collisions.
Driver’s licences
16.As at 1 November 2022:
i. Lisa Hoy was the holder of a class C (car) South Australia driver’s licence […];
ii. Klio Bruckner was the holder of a provisional South Australia driver’s licence; and
iii. The defendant was the holder of a class C (car) South Australia driver’s licence.
Toxicology
17.No drugs or alcohol was present in Lisa Hoy’s blood at the time of the collision.
18.[…]
19.The defendant had methylamphetamine in her blood at a concentration of approximately 0.10 to 0.11 mg per litre of blood at the time of the collision but no other drugs or alcohol.
Vehicle examinations
20.Each of the defendant’s Holden Cruze, Lisa Hoy’s Toyota Prius and Klio Bruckner’s Kia Cerato was in a satisfactory condition prior to the collision. There was nothing mechanically wrong with any of the vehicles that would have contributed towards, or caused, the collision.
Causation
21.The defendant’s driving caused Erica Hoy’s death.
22.The defendant’s driving caused the following harm to Lisa Hoy:
i. An internal brain bleed;
ii. Two orbital fractures;
iii. A lacerated kidney;
iv. A twisted pelvis;
v. A broken nose with a deviated septum;
vi. A broken finger; and
vii. Soft tissue damage to various parts of her body.
23.The defendant’s driving caused the following harm to Michael Reader:
i. Lacerations to the face;
ii. Broken ribs;
iii. A fractured right clavicle;
iv. Multiple traumatic pneumatoceles (air-filled cavity lesions) and bilateral pulmonary contusions;
v. Abdominal injuries and bleeding;
vi. An injury to the liver;
vii. An injury to the left kidney; and
viii. Multiple fractures to the pelvis.
24.The harm Michael Reader suffered as a result of the defendant’s driving endangered his life.
25.The defendant’s driving caused the following harm to Klio Bruckner:
i. A complete fracture to the ulna and radial bones in her left arm;
ii. A puncture wound to her left knee; and
iii Internal bruising.
Interviews with the defendant[9]
26.Constable Adrian Skewes was the first police officer to speak to the defendant after the collision on 1 November 2022. His interaction with her was captured on body worn video. Constable Skewes arrested the defendant at about 9.48 pm on 1 November 2022 and, with other police, conveyed her to the Queen Elizabeth Hospital for the purpose of obtaining a blood sample from her. Constable Skewes then conveyed her, with another police officer, to the Port Adelaide Police Station arriving at about 10.50 pm.
27.Brevet Sergeants Jason Thiele and Darren Hayes interviewed the defendant at the Port Adelaide Cell Complex on 2 November 2022, beginning at about 12.20 am.
[9] Exhibit P4 (USB containing footage, including body worn camera footage and record of interview).
The prosecution tendered evidence in the form of location images and electronic recordings from a vehicle dash camera and police interviews conducted with the defendant (which are indicated by reference to the agreed facts above).
The prosecution also tendered a report of Professor Jason White, a pharmacologist, concerning the presence of methamphetamine in the defendant’s blood.[10]
[10] Exhibit P3.
The agreed facts and other evidence before me establishes that at about 9.30pm on 1 November 2022, the defendant was driving a Holden Cruze vehicle in the south-west bound lane on the Port River Expressway at Gillman, behind a Toyota Prius which was being driven by Lisa Hoy. Erica Hoy and Michael Reader where passengers in the Toyota Prius at the time.
Over a period of 13 seconds and a distance of approximately 567 metres, the defendant drove at an average speed of 157 kph before colliding with the rear of the Toyota Prius. That initial collision forced the Toyota Prius over the raised centre median strip which separated the south-west bound and north-east bound lanes, and into the oncoming path of a Kia Cerato driven by Klio Bruckner. The Toyota Prius went on to collide with the front of a Kenworth B triple truck, while the Kia Cerato went on to collide with a Toyota Hilux van.
The posted speed limit in the area of the initial collision was 60 kph. In the five seconds prior to the initial collision, the defendant drove at a speed between approximately 158 kph and 171 kph. At the point of the initial collision, the defendant was driving at a speed between approximately 137 kph and 138 kph.
At the time of driving and the immediate lead up to the initial collision, the defendant had approximately 0.10 – 0.11 mg/L of methylamphetamine in her blood. Recreational users of methylamphetamine most commonly exhibit blood concentrations in the range of 0.10 – 0.50 mg/L in the first six hours after taking the drug.[11] The defendant had a blood concentration of methylamphetamine that can produce significant effects on mental state and behaviour in people with experience of using the drug and that adversely affects driving.
[11] Exhibit P3, p.2.
The defendant’s driving was the cause of the initial collision with the Toyota Prius, the secondary collisions, and the resulting death of Erica Hoy and injuries to Lisa Hoy, Michael Reader and Klio Bruckner.
I make some observations regarding the recordings of police interviews conducted with the defendant which are referred to in the agreed facts numbered 26 and 27. In the few minutes before her arrest by Constable Skewes, the defendant is shown on the body worn video footage to be behaving in what might be described as an uncooperative manner;[12] she denied having been involved in a collision and expressed that she wanted the officer to get away from her. I also make the observation that the defendant made some strange comments at this time, including, “the woman probably fell out the window” (in reference to a woman running from the scene of a collision), “I don’t trust you” and “mark me up as dead”. Having been placed under arrest, and before being conveyed to hospital, the defendant made further strange, nonresponsive comments including, “do you not realise what’s going on?”, “I was supposed to be dead” and “you know where I have been. You’ve changed all the speed limits”. She appears to be uncomposed and dysregulated.
[12] Exhibit P4.
At the Queen Elizabeth Hospital (‘QEH’), the defendant’s demeanour such as it is shown on the body worn video may be described as belligerent, and she continued to make strange comments. At one point, in relation to the collision, the defendant asked police, “was there a paedophile in the boot?”. She later said, “I knew that accident was going to happen there. I knew fucking six years ago…”
When interviewed at Port Adelaide Police Station at 12.20am on 2 November 2022,[13] the defendant appears more composed. However, her presentation is odd. For example, she laughs incongruently when police are describing the vehicles involved in the collision and, at one point, places a plastic vomit bag on her head as if to wear it like a hat. When asked if she understood that she was being charged with leaving the scene of an accident after causing death, the defendant stated, “I was running for my life, okay do you understand that, do you understand that, do you?”
Psychiatric evidence
[13] Exhibit P4.
Report of Dr Nguyen
The defence tendered a report of Dr Nguyen dated 16 May 2024.[14] For the purpose of preparing his report, Dr Nguyen had access to details of the charges, the prosecution and defence case statements, affidavits forming the evidentiary foundation for the prosecution case and various hospital discharge summaries and other records relating to the defendant, which are enumerated in the body of his report.
[14] Exhibit D5.
Dr Nguyen also interviewed the defendant at the Adelaide Women’s Prison on 26 March 2024 (‘the AWP interview’).
Defendant’s psychiatric history
Dr Nguyen summarised the defendant’s reporting of her psychiatric history as follows:[15]
·She had been diagnosed with schizophrenia and bipolar affective disorder.
·She had previously denied having these conditions, but said that she ‘now’ believed that she had them;
·The defendant reported seeing a psychiatrist, Dr Burgess, in prison every three months; and
·The defendant reported previous admissions to the Morier Ward, Glenside and Murray Bridge Hospital, with her longest admission being for three months in the Morier Ward.
[15] Exhibit D5, p.4.
Dr Nguyen documented the defendant’s historical pre-offence hospital admissions from the hospital discharge summaries.[16]
[16] Exhibit D5, pp.4-5.
In October 2004, the defendant was transferred from the Murray Bridge Hospital to the Morier Ward with an exacerbation of auditory hallucinations commanding her to kill her husband and commit suicide, in the context of ceasing use of an anti-psychotic drug six weeks earlier. It was referenced that the defendant’s first psychiatric illness was that of post-natal depression diagnosed in 2000. The defendant was taking anti-psychotic and anti-depressant drugs for post-natal depression, and was commenced on a mood stabiliser. A history of amphetamine use and drug-induced psychosis was noted, the defendant having previously been admitted in April 2004 for drug-induced psychosis secondary to amphetamine and cannabis abuse. The discharge diagnosis, on 9 November 2004, was schizophrenia, with a secondary diagnosis of bipolar disorder.
The following year, in August 2005, the defendant was re-admitted to the Morier Ward. Five weeks prior to admission, the defendant suffered a first trimester miscarriage and became depressed. The defendant was admitted to Morier Ward on account of non-compliance with her medication and becoming increasingly agitated and violent towards her husband. The defendant reported ‘ideas of reference and paranoid thoughts’, and had developed an urge to hurt her husband, which she acted upon. In the week prior to the admission, the defendant had left her husband and used amphetamines, cannabis and alcohol to excess. During the admission, the defendant was treated with anti-psychotic drugs leading to her mental stabilisation and early discharge.
On Christmas Day in 2008, the defendant was admitted upon presentation at an emergency department with a polypharmacy overdose when she was six months pregnant. Attention-seeking behaviour was self-reported and the defendant was discharged being deemed a low risk.
Accounts of collision given by the defendant
Dr Nguyen summarised the accounts given by the defendant in clinical settings about the circumstances of the collision.
Dr Nguyen noted that on 2 November 2022, when the defendant was assessed at the QEH to determine her fitness for custody, she reported ‘being chased/followed by another car while driving and was trying to get away’ and persistent persecutory delusions over the previous four to five weeks, which were noted as follows:[17]
someone had been hiding in the trunk of her car
was being followed by an Indian couple
someone had put cat litter into her yoghurt
when driving always felt that she was being followed
[17] Exhibit D5, p.13.
The defendant also admitted to driving at up to 180 kph.
The defendant was admitted to James Nash House (‘JNH’) between 3 November 2022 and 19 June 2023. Dr Nguyen noted the following from the discharge summary relating to that admission:[18]
in the four – six weeks following her offence she believed that her partner was a paedophile due to her daughter presented with a tick which was since resolved and she also believed that her partner was having an affair due to him allegedly becoming increasingly violent towards her. On the day of the offence, Carlie reports that she was at a petrol station and saw an Indian woman in a car crying and a ?weird? – looking guy working at the newsagent section of the petrol station who she believed was a paedophile and working with her partner. Carlie reported that she believed that this man at the petrol station may be wanting to steal the Indian woman’s child and that’s why she was crying.
Carlie reports that after this incident she was swerved by a car possibly to harm her. Carlie reported that she recognised the woman from a similar incident four months ago. After driving off, Carlie reports that a small security vehicle was following her and her GPS began to malfunction and she was receiving ideas of reference from the radio. Carlie then began to believe that the person who swerved her was the person having an affair with her partner. She then drove erratically to escape from the security vehicle. She also had delusional thinking that she had to ? race ? the car that swerved her for her partners love and she reports she her car slid into an embankment. She walked to the nearest petrol station to call the police about the accident but had not realised that she had hit anyone.
[18] Exhibit D5, p.13.
While in JNH, the defendant’s paranoia persisted for months before her mood and psychotic symptoms were stabilised by a combination of mood stabilising and anti-psychotic medications.[19]
[19] Exhibit D5, pp.13-14.
Dr Nguyen obtained a history regarding the alleged offending from the defendant in the course of the AWP interview on 26 March 2024. It may be summarised as follows:[20]
[20] Exhibit D5, pp.11-12.
·In the two months leading up to the alleged offending, the defendant had been experiencing paranoid delusions relating to her partner (Paul). She broke up with her partner in the week prior to the alleged offending.
·The defendant described having heard voices for six weeks, and other delusions.
·On the day of the alleged offending, the defendant was helping her friend to clean her house. She received a phone call to go to Salisbury and went to pick up a bag of dope for her friend.
·She had seen her partner earlier that day; he wanted her to go on her medication.
·The defendant thought that there was a ‘little security car’ following her. She was suspicious when her GPS had taken her to Gawler instead of Port Adelaide.
·When she got to Gawler, she noticed a security car, and believed it had something to do with the air force and army. She thought it was related to her ex-partner, who had a cousin that worked in the army. She thought that she was watching her.
·The defendant said that prior to the collision, before arriving in Gawler, she had stopped at Mawson Lakes to get chewing gum and a drink. She said she saw a woman crying in a car and believed that a man was delivering her child to the person in the service station. She believed him to be a paedophile.
·The defendant said that her mind kept switching to different things to stress about, that she felt like she could connect with spirits and some people could see them around her.
·The defendant admitted to smoking about half a point of methylamphetamine with a friend about five hours before the collision, and said she did not want anyone to know she was using ‘dope’ that day as she knew she would ‘lose everything forever’.
·In the car, she sped up because she was ‘trying to lose the security car’.
·The defendant recalled hitting the bridge, but did not recall a collision involving other vehicles. She said that her car was ‘snaking out then hit the bridge’, and her ‘wheels turned in’.
·The defendant recalled extricating herself from her vehicle and going over a hill to a service station to get cigarettes.
·When the police approached her, the defendant thought they ‘set [her] up’. She said someone had shot her tyre out, which was why she lost control.
·She thought she would ‘get a smoke and then deal with it’.
·She felt like ‘all the other threat was gone’.
·Upon being made aware at the police station that other vehicles were involved, she did not believe it and thought police were trying to trick her.
Dr Nguyen’s opinion
Based on the defendant’s described pattern of illicit drug use, which it is not necessary to summarise, Dr Nguyen considered that she probably met the diagnostic criteria for cannabis and methylamphetamine use disorder, which may have precipitated her initial psychotic episodes, which ‘unmasked a pervasive psychotic disorder which has been diagnosed as schizoaffective disorder’. He considered that her history and presentation at the AWP interview were consistent with this diagnosis. Dr Nguyen considered the defendant to be in relative remission.
On the topic of the defendant’s mental competence to commit the driving offences, Dr Nguyen concluded that at the time of the alleged offences, it appeared that the defendant was experiencing a relapse of her schizoaffective disorder which was characterised by auditory hallucinations, referential delusions and persecutory delusions, which had persisted for several weeks prior. Dr Nguyen went on:[21]
This led to forming delusions that she was being followed by a security car and she also described needing to race a car to prove her love for her ex-partner whom she had recently broken up with. Due to these delusions, she would have been unable to know the wrongfulness of dangerous driving and subsequently causing harm and death due to these delusions when compared to reasonable people.
[21] Exhibit D5, pp.14-15.
On this basis, in his report Dr Nguyen supported a mental incompetence defence in respect of the driving offences. Dr Nguyen was of the opinion that methylamphetamine probably served to disinhibit reckless action and impair judgment, rather than producing ‘the paranoid delusions implicated in her inability to know the wrongfulness of her conduct’. Dr Nguyen considered that the relapse of the defendant’s schizoaffective disorder, rather than methylamphetamine, was the significant contributor to her paranoid delusions.[22]
[22] Exhibit D5, p.15; Dr Nguyen’s opinion on the role of methylamphetamine was consistent in his evidence-in-chief (T43-44).
As to the offences of leaving an accident scene after causing death or harm by careless driving, Dr Nguyen considered that there appeared to be no clear delusions that would have rendered the defendant unable to know the wrongfulness of the conduct of leaving the scene of an accident. He said that this was probably significantly influenced by the defendant’s methylamphetamine intoxication at the time which would have impacted upon her ability to problem solve appropriately.
Evidence of Dr Nguyen at trial
Dr Nguyen gave evidence of his training, qualifications and experiences. Dr Nguyen obtained his basic medical qualifications from the University of Adelaide in 2002, and completed psychiatry training in 2011, when he was granted Fellowship of the Royal Australian and New Zealand College of Psychiatrists. He has worked as a consultant psychiatrist with the Southern Adelaide Mental Health Service, Forensic Mental Health Service and at the Royal Adelaide Hospital. Since 2020, Dr Nguyen has been working in the Older Persons Mental Health Service in the Acute Inpatient Unit at the QEH. Dr Nguyen also conducts a private psychiatry practice.
In 2013 Dr Nguyen undertook a training course with a subspecialty focussed on forensic psychiatry conducted by the Royal Australian and New Zealand College of Psychiatrists. He regularly provides reports to South Australian courts concerning issues of mental fitness and competence in the context of Part 8A of the CLCA, and gives evidence about such matters.
Dr Nguyen’s expertise was not challenged.
Dr Nguyen said that it is relevant to know a person’s mental health history in determining their mental state at a given time. Regarding the defendant’s psychiatric history from the hospital discharge summaries to which he had access, Dr Nguyen said that most or all of her inpatient admissions related to psychotic episodes.
Defendant suffering from a mental impairment of schizoaffective disorder
Regarding the defendant’s post-collision admission to JNH, Dr Nguyen said that it appeared that the length of that admission (over seven months) was due to an acute relapse in her schizoaffective disorder. Dr Nguyen defined schizoaffective disorder as follows:[23]
I think put simply one can conceptualise it as a combination of a bipolar illness and a schizophrenia. So bipolar illness usually relates to episodes of mania and psychosis. Both of those states can present with psychotic symptoms as well but those psychotic symptoms don’t always have to be present during the acute episode of mania or depression. Schizophrenia relates to a purely psychotic illness and not – sorry, they – during those episodes of psychosis they don’t have any diagnostic or there’s no – sorry, I’ll rephrase that. So during those psychotic episodes and schizophrenia they do not meet the diagnostic criteria for a full episode of depression or mania in conjunction. So a person that has schizoaffective disorder, when they – during an episode and it doesn’t have to be every episode, but there are features of both psychosis as well as either an episode of depression or mania.
[23] T26-27.
For a number of months the defendant experienced both psychotic and mood symptoms related to her schizoaffective disorder and several conventional treatments were trialled. This suggested that in the days following the collision, the defendant was suffering from a severe relapse of her schizoaffective disorder. At this time, the defendant’s psychosis was characterised mainly by paranoia which, he said, ‘clinches a diagnosis of psychosis’.[24]
[24] T25.
Dr Nguyen considered that the defendant’s report at the time of the AWP interview of hearing voices for the six weeks preceding the collision was plausible, given her history of experiencing auditory hallucinations during previous psychotic episodes. The referential delusions which in part characterised the defendant’s schizoaffective disorder took the form of songs on the radio which had a subliminal meaning for her. I did not understand Dr Nguyen’s evidence to be that auditory hallucinations and/or referential delusions were operating upon the defendant specifically at the time of, or in connection with, the defendant’s pre‑collision driving, other than as features of her baseline schizoaffective disorder relapse.
The defendant’s experience of persecutory delusions
As noted above from Dr Nguyen’s report, the defendant’s schizoaffective disorder relapse was in part characterised by persecutory delusions. Dr Nguyen explained that a persecutory delusion is a fixed false belief related to a degree of paranoia. In evidence-in-chief, Dr Nguyen said that the defendant’s persecutory delusions were persistent, meaning that they existed irrespective of, and did not tend to fluctuate with, external influences, such as illicit drugs. During the JNH admission, the defendant experienced psychotic symptoms in the form of persecutory delusions for a period of months which, Dr Nguyen said, was helpful in determining whether they were operating upon her at the time of her driving. Dr Nguyen concluded, from a combination of the defendant’s history of schizoaffective disorder with hallucinations and persistent persecutory delusions during her time at JNH, that at the time of the driving she was ‘suffering from’ persistent persecutory delusions.[25]
[25] T26.
By reference to the JNH discharge summary, Dr Nguyen considered that the defendant’s report of seeing an Indian woman crying at a petrol station and a male who she believed was a paedophile could be regarded as a persecutory delusion, which she perceived as a sense of threat. Noting the defendant’s later reference to a paedophile at the time of her arrest, Dr Nguyen considered that the repetition of a persecutory delusion adds weight to the conclusion that she was suffering from a schizoaffective disorder at the relevant time.
Being followed by a small security vehicle
Dr Nguyen considered that the defendant’s report of being followed by a small security vehicle represented another persecutory delusion, with an element of paranoia. He noted a consistency in the delusion involving the defendant being ‘chased/followed’ by another vehicle reported earlier at the QEH on 2 November 2022, indicating or confirming the persecutory nature and persistence of the delusion.[26] The defendant’s reported delusions in the weeks prior to the collision included a feeling that she was being followed when driving, as noted at the QEH. Dr Nguyen said that this was a further example of paranoia, which added ‘more examples of the symptomology she was experiencing’. [27]
[26] T30.
[27] T33.
Dr Nguyen linked this persecutory delusion relating to the small security vehicle to the defendant’s driving in a manner which he explained as follows:[28]
[28] T29-30.
Q.So if I can just go through that bit by bit. Then it's a persecutory delusion that she thought that as a result of what she'd seen at the service station she would have been chased by a small security vehicle.
A.Yes.
Q.That she then drove in the way that she drove to escape from that small security vehicle which was a delusion.
A.Yes.
Q.And so her driving then, is this correct, was then a direct consequence of that delusionary or persecutory delusion.
A.Yes.
Q.So she was, essentially, driving to escape from a vehicle that she perceived to be chasing her.
A.Yes.
Q.Notwithstanding of that, there's no evidence of a small security vehicle chasing her.
A.Yes.
Based upon the history obtained in the course of the AWP interview, Dr Nguyen took the defendant’s reports of being followed by a little security car and of the GPS taking her to Gawler instead of Port Adelaide to be paranoid perceptions of the information that the defendant was presented with. He said that he did not delve into it too much deeper to see how strongly held the idea was. As to the defendant’s report of her mind switching to different things to stress about prior to the collision, Dr Nguyen considered that the existence of having a flight of ideas, which is a symptom of mania, might have at various stages led to the defendant having different delusional thoughts in rapid succession in a short space of time. He said that the defendant’s predominant experience was of persecutory delusions, the themes of which flicked from one paranoid idea to another, with one idea being the need to get away from the small security vehicle which was following her.
Dr Nguyen said that the paranoid delusion about being followed by the small security vehicle gave an indication of what the defendant’s motivation was, meaning her motivation for driving in the way that she did, which was to escape from her perceived follower.[29] I understood Dr Nguyen to be saying that it was in this sense that the defendant’s driving was undertaken in consequence of her schizoaffective disorder, namely, that she was acting in response to the persecutory delusion involving the small security vehicle following her. Dr Nguyen gave the following evidence:[30]
[29] T40.
[30] T40-41.
Q.And because she was responding to persecutory delusions, is that why you say she would have been unable to know the wrongfulness of her dangerous driving and causing harm and death at the time.
A.Yes, it coloured her ability to reason to conduct her behaviour.
Q.So essentially because of the delusions, the schizoaffective and severe nature of that episode, she wasn't able to reason about wrongfulness in the way that a reasonable person would.
A.That's correct.
Q.And that's why you provided the opinion, that Ms Richards had a mental incompetence defence in relation to the driving offences.
A.Yes.
Q.Just to be clear, that's the second limb of the mental incompetence defence, in terms of not being able to reason about the wrongfulness.
A.Yes, that's my understanding.
Further on, Dr Nguyen was asked the following questions, and gave the following answers:[31]
Q.So without going over it too much again, her delusions schizoaffective disorder and her paranoid delusions led to her directly drive in the way she did and that's why you found she was mentally incompetent in relation to the driving offences.
A.Yes.
Q.There's a clear nexus between her illness, her delusions, her paranoid nature of those delusions and the reason why she drove in the way she did.
A.Yes.
[31] T46.
Dr Nguyen went on to explain by agreement with counsel’s leading questions that the defendant’s serious schizoaffective relapse led to persistent paranoid delusions which ‘caused her to believe she needed to drive to get away from this car which was part of the delusion … and the only way she could do that was to drive in the way that she did’.[32]
A need to race?
[32] T49.
Dr Nguyen seemed to acknowledge[33] in evidence-in-chief that the defendant’s report of a decline in her mental state relating to the breakdown of her relationship was a relevant factor in his assessment of her mental impairment at the relevant time, suggesting that it was ‘probably a combination of’, causative of, and resultant from, her acute episode.[34] As to the defendant’s report of needing to race a car to prove her love for her ex-partner, which I note is documented in the JNH discharge summary as ‘thinking that she had to ? race ? the car that swerved her for her partners love’,[35] Dr Nguyen said that he did not examine the defendant in great depth regarding that matter. He said that while it may have been a delusion, it was characteristic of the defendant’s thought content and appraisal of those sort of ideas, and that it ‘could be part of a bit of a flight of different ideas that one experiences during a manic episode’.[36]
[33] T42.
[34] T42-43.
[35] Exhibit D5, p.13.
[36] T43.
As I understood Dr Nguyen’s evidence, the defendant’s statement about needing to race was less informative of her inability to know the wrongfulness of her dangerous driving than her delusion about being followed by the small security vehicle. Dr Nguyen gave the following evidence on that topic:[37]
HER HONOUR
Q.Dr Nguyen, can you assist me to understand if Ms Richards spoke in terms of racing a car prior to the collision, how that sits with her lacking knowledge of the wrongfulness of her conduct.
A.I think it depends on how intensely she held that idea. I think that if it met the diagnostic criteria for a delusion, that it was an unshakeable ideas that she had to race that car, otherwise there was, you know, 100% certainty that she proved that she did not love her ex-partner, then that would constitute a delusional belief and, therefore, one could argue that there would be an inability to know the wrongfulness on that aspect, I suppose.
Q.Are you able to evaluate the intensity of any belief held in that regard by Ms Richards.
A.I could have. I think the other thing was, I suppose, the associated evidence around that is less conclusive, compared to the existence of the paranoid delusions, which is partly the reasons why I didn't labour so much on the aspect of her thought content at the time.
[37] T46.
Dr Nguyen went on to say that it was plausible that the racing claim could be an aspect of her schizoaffective reaction and delusion in combination with a phenomena relating to mania or even substance intoxication.[38]
[38] T48.
Dr Nguyen said that the defendant’s description of a need to race to prove her love for her ex-partner did not in any way impact on his finding that she was delusional at the relevant time, or on his ultimate opinion.
Post-collision conduct
In his report and in evidence, Dr Nguyen said of the footage of the defendant’s arrest following the collision that she presented as belligerent, critical and agitated, but goal-directed in her behaviour. In evidence, he clarified that belligerence does not exclude the experience of delusion and/or schizoaffective disorder. With respect to the defendant’s statements at 10.25pm about already being dead and knowing that the accident was going to happen years ago, Dr Nguyen said that was an odd statement, but that it did not impact upon his findings that the defendant was suffering from delusional beliefs at the time of the driving, or that she was unable to know the wrongfulness of the driving.
Dr Nguyen gave evidence that his conclusion that the lack of clear delusions rendering the defendant unable to know the wrongfulness of her conduct in leaving the scene (that is, lack of mental incompetence defence on those offences) did not exclude the presence of persecutory delusions at the time of the driving offences.
Cross-examination of Dr Nguyen
What ‘conduct’ did he consider?
Dr Nguyen was cross-examined about his consideration of what constituted the defendant’s conduct for the purpose of arriving at his ultimate opinion that the defendant was unable to know the wrongfulness of her conduct. Dr Nguyen said that the conduct which he considered that the defendant did not know was wrong was the conduct of driving dangerously causing death or harm.[39] He then said that his opinion was based solely upon an assessment of the defendant’s ability to reason about the driving divorced from its manner.[40] Dr Nguyen was then asked the following clarifying question, and answered:[41]
Q.So it just relates to the driving itself, not the manner of her driving, that's your opinion.
A.I think that because of her delusional beliefs, it did - sorry, it did influence the manner in which she was driving in that she was driving recklessly to avoid the consequences of being subject to the - her persecutory beliefs, or the outcome of her persecutory beliefs.
[39] T50, L11.
[40] T50, L20.
[41] T50, L21 – L28.
At a later point in cross-examination, Dr Nguyen was asked whether his conclusion about the defendant being unable to know the wrongfulness of her conduct would be the same or different if the conduct was limited to simple driving (‘just driving’), to which he responded:[42]
It would be, yeah, a different scenario to consider. There are other aspects to bear in mind such as an awareness of how wrongful to drive whilst intoxicated, for instance. I suppose that’s an example that comes to mind so we’re looking at a different set of variables – sorry, set of circumstances and different risks as well.
The defendant’s capacity to reason about other matters
[42] T63, L27 – L33.
Dr Nguyen was asked about the defendant’s self-report in the AWP interview that on the day of the collision she was helping a friend to clean her house and that she received a phone call to go to Salisbury and went to pick up a bag of dope for her friend. He said that he believed this involved an intentional decision to drive to pick up drugs, and that the defendant should have been capable of reasoning about the wrongfulness of acquiring drugs. On setting out on that drive, the defendant was able to know the nature and quality of the conduct of driving and she was able to exercise a degree of control over that conduct.
Dr Nguyen confirmed that in the course of the AWP interview, the defendant reported that she noticed the small security car at Gawler after she had left a Mawson Lakes service station. Dr Nguyen said that when the defendant left the Mawson Lakes service station, she knew that she was driving and made an intentional decision to do so.
With respect to the defendant’s reported ‘need to race’ which, in the terms of Dr Nguyen’s report, in part represented a delusion which operated upon the defendant to render her unable to know the wrongfulness of dangerous driving, Dr Nguyen agreed it was implicit that racing would involve driving above the speed limit. The defendant could and, Dr Nguyen assumed, did, form an intention to drive above the speed limit. As to whether, having formed such an intention, the defendant could reason about whether the conduct of racing was wrong, Dr Nguyen said that he thought the defendant would have had a diminished ability to reason. He agreed that she could reason about the wrongfulness of racing, but that ‘it would not be considered to be consistent with an ordinary person’.[43] As to whether the defendant could reason about whether the conduct, as perceived by reasonable people, was wrong, Dr Nguyen said that it would depend on the intensity of her belief and whether it reached a delusional level.
[43] T53.
On the topic of racing, Dr Nguyen concluded, in a shift from the terms of his report, that he was inconclusive about whether the defendant’s beliefs about racing were sufficient to support a conclusion that she would have been unable to know the wrongfulness of her conduct.
Post-collision conduct
By reference to Dr Nguyen’s opinion that the defendant’s conduct in leaving the scene lacked a clear link to delusions but that this did not exclude the presence of delusions, he did not agree with the proposition that the experience of delusions did not necessarily inhibit reasoning about wrongfulness. He said this would depend on what the defendant was trying to reason the wrongfulness of.
Regarding the defendant’s reports in the AWP interview concerning her apprehension of the collision and events in the aftermath, such as someone having shot her tyre out, Dr Nguyen said that he did not clarify when the defendant had those thoughts.
Dr Nguyen acknowledged that the defendant’s departure from the scene of the collision was motivated at least in part by self-preservation. The defendant also engaged in goal-orientated behaviour at the hospital following her arrest, such as by attempting to delay or frustrate the obtainment of a sample of her blood. Dr Nguyen agreed that such goal-orientated behaviours demonstrated an understanding on the defendant’s part that she had been involved in a collision, that she bore some fault in respect of it and that she had a responsibility to remain at the scene. Dr Nguyen characterised the defendant’s reasoning process in this regard as hasty and somewhat superficial, and not to the same depth of understanding she has gained since becoming well.
Dr Nguyen was cross-examined as to the point of distinction between the defendant knowing that it was wrong to leave the scene, and not knowing that her earlier driving conduct was wrong:[44]
[44] T59 L24 – T61 L10.
Q.So she went through a reasoning process at that time with respect to her immediately past conduct in driving and being involved in the collision.
A.Yes. I suppose it depends on where one might draw or one might place a threshold of what's acceptable or legally acceptable as well.
Q.The thought process that she went through involved an understanding of the driving in which she had just been engaged, didn't it.
A.I think there was - I mean, I think overall she had an appraisal of what she had been doing but, well, in driving, but had probably had limited or diminished depth of understanding of the actual circumstances that she found herself in.
Q.She knew enough, didn't she, to know that she had a responsibility to stay at the scene of the collision.
A.I think ultimately that was my conclusion.
Q.And she could reason about the wrongfulness of leaving; I think you've already said that.
A.Yes.
Q.Does that not tend to indicate that she could also reason about the wrongfulness of the manner of her driving itself.
A.I think the manner that she was driving with - the manner in which she was driving was significantly more influenced by her psychosis at the time or the persecutory delusions particularly.
Q.But it's the case, isn't it, that she could experience delusions and still reason through the wrongfulness of her conduct, and I'm just speaking in a general sense. Someone with her condition could experience delusions and still reason through the wrongfulness of her conduct, is that so.
A.Yes. I think it depends on the scenario and it depends on the factors that she's having to negotiate. There probably wasn't enough of a link between the persecutory delusions that she was experiencing or expressed that indicated to me that she would find it wrong to - sorry, she would find it - she would not wrong to leave the scene of an accident.
Q.But the point I make to you, and you can agree or disagree, is that if she was capable of reasoning through that process, the delusions which contributed to her driving didn't inhibit her ability to reason through the wrongfulness of her driving.
A.Sorry, if you can repeat that again?
Q.The fact that she could reason through the wrongfulness of her conduct notwithstanding delusions indicates that she could apply that reasoning about the wrongfulness of her driving.
A.I think it's very specific to the task at hand. Driving in a responsible manner is a different task to remaining at the scene of an accident.
Q.It's not the case, is it, in your opinion that Ms Richards honestly believed that she was driving appropriately or in a safe manner.
A.I think that - I suppose it's speculating a little bit, but I mean she did admit that she was driving or speeding which indicates an awareness that she was driving irresponsibly or in a dangerous manner if we speculate to that level so she was aware that she was conducting herself in that way, but her reasoning for doing so was a significant factor for me.
Re-examination
In re-examination, Dr Nguyen clarified that the reference in his report to the defendant’s described need to race a car to prove her love for her ex-partner[45] was not intended to be an extension of his comment about persecutory delusions. He said that he did not form any concrete opinion about how the racing concept/thought existed independently from the other symptoms which formed part of the defendant’s relapse of schizoaffective disorder.[46] He was unable to be conclusive about whether the racing thought was intense enough to form a delusion in its own right that impaired her ability to know the wrongfulness of her conduct. He described it as part of the picture or ‘phenomenology’ that the defendant presented with that characterised her condition. Ultimately, he said that any equivocation as to whether the racing thought was part of the defendant’s psychosis did not cause him to alter his opinion that the defendant did not know the wrongfulness of her driving conduct.[47]
[45] Exhibit D5, p.14.
[46] T65.
[47] T66.
The contentions of the parties
The defence invites me to accept the evidence and opinions of Dr Nguyen in support of a finding that the defendant was mentally incompetent to commit the driving offences. The defence submits that the conduct to which the mental incompetence ‘defence’ attaches is the defendant’s pre-collision act of driving at speed, which was objectively dangerous. The defence submits that Dr Nguyen’s opinion that in consequence of the defendant suffering from a mental impairment in the form of schizoaffective disorder with persistent persecutory delusions she did not know that conduct was wrong is effectively uncontroverted and cogent in its own right.
Dr Nguyen’s evidence was very clearly to the effect that the defendant would have experienced persecutory delusions related to her schizoaffective disorder irrespective of the methylamphetamine in her system. The prosecution does not dispute this conclusion. It is common ground between the prosecution and defence that the defendant’s mental impairment at the time of the pre-collision driving was not substantially caused by self-induced intoxication.[48]
[48] CLCA s 269C(2).
The prosecution submission involves two alternatives:
1.That Dr Nguyen’s opinion as to the defendant’s mental incompetence ought not be accepted as it is founded upon an incorrect framing of the test of mental incompetence, namely that the conduct to which mental incompetence attaches is driving dangerously (as opposed to driving simpliciter); or,
2.If the conduct to which mental incompetence attaches is driving dangerously, Dr Nguyen’s evidence does not sufficiently support a finding on balance that the defendant did not know that her driving conduct was wrong.
The prosecution’s first and primary contention is based upon the decision of Gray J in Schwark v Police (‘Schwark’).[49] The prosecution submits that the decision in Schwark stands as authority for the proposition that for an offence involving dangerous driving, mental incompetence is to be assessed by reference to the culpable conduct comprising of the mere act of driving. That submission is based, as I understand it, upon Gray J’s holding at paragraph [14] in relation to the availability of a mental incompetence defence in that case that:[50]
Relevantly, the conduct alleged to give rise to the offence was the act of driving. The question more particularly is whether the defendant knew the nature and quality of his act in driving and that he was able to control the act of driving. The conduct of dangerous driving or bad driving is to be assessed objectively.
[49] (2011) 111 SASR 451.
[50] Ibid [14].
What conduct gives rise to an offence involving dangerous driving?
Consistent with the parties’ framing of, and approach to, the key issues in dispute in this matter, it is appropriate to deal firstly with the question of what conduct mental competence considerations attach to for an offence of dangerous driving.
The offence of causing death (or harm) by dangerous driving requires proof of three elements:
1.That the accused drove a vehicle.
2.That the accused drove the vehicle in a dangerous manner.
3.By driving in that manner, the accused caused the death of (or harm to) another.
The third (causation) element may be put to one side for the purpose of determining the issue of mental competence in this case.
The first and second elements are distinct, but they overlap as both are concerned with the common action of the accused driving a vehicle. The first element requires proof of a voluntary act of driving; the accused must intend to drive a vehicle.[51] However, the accused need not intend to drive dangerously. The second element involves an objective assessment of whether the driving is dangerous.[52]
[51] R v Coventry (1938) 59 CLR 633 638; Kroon v The Queen (1990) 55 SASR 476 478; Jiminez v The Queen (1992) 173 CLR 572 577.
[52] R v Cain (2011) 111 SASR 301 [18].
The cases which are concerned with the requirement of a voluntary act of driving in proof of a dangerous driving offence treat the act of dangerous driving as indivisible; it is the voluntariness of the dangerous driving which is essential to liability. That is not to say that the accused must intend to drive dangerously, but that the accused must intend the act of driving which is assessed objectively to be dangerous. In other words, although the quality (dangerousness) of the driving is to be evaluated objectively, that driving must be intended.
As to the requirement of a voluntary act of driving, in Kroon v The Queen[53] (‘Kroon’), King CJ elaborated that where the driving or apparent driving is deprived of its voluntary character by, for example, automatism or unconsciousness, the offence is not committed.[54] The court in Kroon held that a person who drives a vehicle while asleep is not acting in consequence of an exercise of the will and is, therefore, driving involuntary. In his analysis of this issue, King CJ, with whom Mohr J agreed, concluded that offences of causing death or harm by dangerous driving ‘clearly imply some fault on the part of the driver’.[55]
[53] Kroon v The Queen (1990) 55 SASR 476.
[54] Ibid 478.
[55] Ibid 479.
In separate reasons, White J cast the requirement for proof of a voluntary act of driving as follows:[56]
The word "voluntariness" correctly recognised that the Crown had to prove beyond reasonable doubt that the act of dangerous driving which was alleged to be in breach of s 19a(1) of the Criminal Law Consolidation Act 1935 had to be a voluntary act, an act of which the driver was aware and for which he could properly be held criminally responsible.
[56] Ibid 87.
I note that White J explicitly linked the voluntariness requirement to ‘the act of dangerous driving which was alleged to be in breach of s 19A(1)’.
White J provided examples of objectively dangerous driving for which a driver would not be criminally culpable for want of voluntariness or awareness:[57]
Objectively assessed dangerous driving may have resulted from a driver's sudden and unexpected loss of consciousness or from some illness of which he or she had no prior warning whatsoever; or he or she might have lost control through some structural defect in the steering or brakes of a well-kept well-serviced car. These instances of apparent dangerous driving due to circumstances beyond the control or awareness of a driver are not acts of dangerous driving within the meaning of s 19a. In my opinion, s 19a must be construed so as to include an element of personal responsibility on the part of the accused for what happened.
[57] Ibid [490].
In Jiminez v The Queen[58] (‘Jiminez’), the High Court approved the decision in Kroon, inclusive of King CJ’s determination that dangerous driving requires a voluntary act of driving. The majority of Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ referred to and endorsed King CJ’s observation that ‘an offence such as culpable driving requires the relevant driving to have been voluntary’.[59] The reference to ‘relevant driving’ is plain and instructive; it relates the requirement for voluntariness to the driving under consideration.
[58] Jiminez v The Queen (1992) 173 CLR 572.
[59] Ibid 578.
There is no express or implied suggestion in Kroon or Jiminez that a voluntary act of driving which is interrupted or superseded by some state of involuntariness on the part of the driver continues to be a voluntary act. Kroon and Jiminez hold to the contrary in so far as sleep operates to deprive an act of driving of its voluntary quality.
At a broad level, this analysis of culpable driving from a voluntariness perspective is instructive in determining the question which arises in this case as to what conduct gives rise to an offence of dangerous driving for the purposes of an assessment of a defendant’s mental competence to commit such an offence.
The prosecution contends that the mental element of an offence involving dangerous driving is an intention to drive and, therefore, that the conduct to which a mental incompetence outcome may attach under s 269C(1) of the CLCA is an intentional act of driving.[60] In the course of argument, counsel for the prosecution submitted the following:[61]
So if having made an intentional decision to drive, she at some point during that drive began to suffer or labour under delusions which on balance your Honour was satisfied deprived her of mental competence, in my submission, it wouldn't alter the outcome that, having embarked on an intentional act of driving, she's mentally competent.
…
[If] she formed an intention to drive and did, then any subsequent mental incompetence while driving is not captured by the test.
[60] Written submissions of the prosecution (3 February 2025) paragraphs [3], [7], [12], [19].
[61] T75-76.
Immediately it can be seen that the prosecution position does not allow for a change in mental state on the part of a defendant in the course of a driving journey. The intractability of that position seems to me to be inconsistent with the requirement for an act of driving (which is dangerous) to involve a voluntary act. There could be no argument that a driver who sets out to drive voluntarily and who is rendered unconscious during that act of driving is culpable for the ‘driving’ undertaken while unconscious, notwithstanding that the initiating act of driving was voluntary.
Schwark v Police
As I have already noted, the prosecution submission is based upon the approach of Gray J in Schwark. The prosecution submits that I am bound by the decision in Schwark.
Schwark appears to be a somewhat unique case in the sense that it involved an appeal by a defendant against an order for licence disqualification where he had been found mentally incompetent to commit an offence of causing bodily harm by dangerous driving and released on licence, which appeal was abandoned in the face of a cross-appeal by the prosecution against the magistrate’s dismissal of the complaint on the ground of the defendant’s mental incompetence. The cross‑appeal was conceded on the basis of an acceptance by the defendant that the magistrate’s finding of mental incompetence was informed by a psychiatric report which suggested that the psychiatrist author had not understood the nature of the particular offence. Gray J considered that the appeal raised issues of public importance and provided reasons for his orders setting aside the acquittal and convicting the defendant of the offence of causing harm by dangerous driving.
The circumstances of the defendant’s driving, which were not in dispute, were that he had offered to take a passenger for a drive in his V8 Holden motor vehicle. In the course of the drive, the defendant began showing off to his passenger by revving the engine and causing the vehicle to drift sideways on several occasions. On the last occasion of drifting sideways, the defendant lost control of the vehicle, which collided with a tree in the medium strip, trapping and injuring his passenger. The defendant made admissions to the driving when interviewed by police. The admissions included that he had induced wheel spin on several corners prior to the collision, and that he had put his foot down on the accelerator before the sideways drift into collision with the tree. The defendant said that he drove in this manner for something to do.
At the time of Schwark, s 269C was in different terms to the current provision. The material difference related to the terms of what is now in s 269C(1)(b) concerning a person’s knowledge that the conduct giving rise to the offence is wrong.
Before turning to the impugned psychiatric evidence, Gray J stated:[62]
[13] Section 269C of the Criminal Law Consolidation Act provides:
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; or
(c) is unable to control the conduct.
[14] Relevantly, the conduct alleged to give rise to the offence was the act of driving. The question more particularly is whether the defendant knew the nature and quality of his act in driving and that he was able to control the act of driving. The conduct of dangerous driving or bad driving is to be assessed objectively.
[62] Schwark v Police (2011) SASR 451 [13]-[14].
The prosecution places significant emphasis on paragraph [14] and contends that it amounts to a holding that the conduct giving rise to an offence involving dangerous driving is the mere act of driving itself, a matter to which I shall return.
According to the reasons of Gray J, it was not in dispute that the defendant’s act of driving was a willed act, and the psychiatric report on which the magistrate acted in (erroneously) finding the defendant mentally incompetent did not negate this proposition. The driving was objectively dangerous, caused bodily injury to the passenger and therefore, Gray J concluded, clear error was demonstrated.
Gray J upheld a number of the cross-appellant’s complaints about the psychiatric evidence, including that the psychiatrist appeared to have considered that the defendant’s awareness of the wrongfulness of his conduct was a relevant consideration. The psychiatrist had reported that there was ‘some evidence’ that the defendant did not know the wrongfulness of his conduct and that he held some beliefs of justification. This led Gray J to make the observation that the psychiatrist appeared not to have understood that ‘the relevant willed act in the charged offence was driving, not the wrongfulness of the manner of driving.’[63] There was a further criticism of the psychiatrist asserting that the defendant was ‘unable to adequately control his behaviour’ without disclosing the basis for this conclusion, which appeared to relate to the manner of the defendant’s driving (rather than ‘the mere act of driving’).[64]
[63] Ibid [16].
[64] Ibid [18].
Gray J concluded that the magistrate’s findings, which seemed to have involved a simple adoption of the psychiatrist’s conclusion of mental incompetence, were flawed and that the magistrate had overlooked the need to consider the elements of the offence and to assess whether the act of driving was a willed act.
Returning to what the prosecution contends is the holding in paragraph [14] by which I am bound in this case, the prosecution submitted as follows:[65]
The prosecution submits it is of note that Gray J did not frame the question of the defendant’s mental competence as including whether the defendant knew that his act in driving was wrong. While the second limb of s 269C provides that a defendant is incompetent if he/she does not know that the conduct alleged to give rise to the offence is wrong, the prosecution submits there is no sense in which driving, of itself, is wrong. It would therefore result in a nonsense to find a defendant mentally incompetent if he/she did not know that his/her conduct in driving, as perceived by reasonable people, was wrong because driving, of itself, would not be perceived as wrong by reasonable people. Thus, as Gray J held, the question of mental competence, when it arises in respect of causing death or harm by dangerous driving, is related to the first and third limbs of the test in s 269C.
[65] Written submissions of the prosecution (3 February 2025) [12].
The prosecution submission proceeds to a conclusion that, ‘as the defendant [in Schwark] had formed an intention to drive for the purpose of transporting his passenger, he was apparently mentally competent to commit the offence’.[66]
[66] Written submissions of the prosecution (3 February 2025) at [13].
I do not accept that Schwark’s case stands for an immutable proposition that the mental element in an offence involving dangerous driving is merely an intention to drive, irrespective of what form that driving takes.
Gray J’s characterisation of the evidence of the defendant’s driving being a willed act as overwhelming had to have been informed by the defendant’s admissions to engaging in the acts of driving which, on the prosecution case, were objectively dangerous – such as inducing wheel spin on corners and ‘putting his foot down’. His Honour’s conclusions about the errors made by the psychiatrist were tied directly to the defendant’s willed act of driving, which had these features.
Insofar as his Honour noted that the defendant admitted an intention to drive and a purpose for driving, I do not take his Honour to be saying that the requisite intention for dangerous driving amounted to an intention to merely put the vehicle in motion to convey his passenger. His Honour said this:[67]
It appears that the defendant accepted an intent to drive and that accordingly his driving was a willed act. He drove for a purpose, namely to take his passenger for a drive. The question of his willed acts thereafter and in particular as to his erratic and dangerous driving was to be assessed objectively.
(emphasis added)
[67] Schwark v Police (2011) 111 SASR 451 [17].
To my mind, his Honour’s reference to the need to objectively assess the dangerousness of ‘his willed acts thereafter’ makes it plain that his Honour’s analysis proceeded on the basis that the defendant had to have intended the acts of (dangerous) driving.
I do not consider that Schwark precludes limb s 269C(1)(b) from having application in a case involving dangerous driving.
Other cases
Both the prosecution and the defence addressed the reasons for the orders of his Honour Judge Muscat for releasing a defendant on licence in R v Kitt (‘Kitt’).[68]
[68] [2022] SADC 5.
Mr Kitt was found not guilty of offences of aggravated causing death and harm by dangerous driving by reason of mental incompetence. As is explicit in Judge Muscat’s reasons, the Director of Public Prosecutions had conceded Mr Kitt’s mental incompetence to commit the offences with which he was charged on the basis that he was suffering from an episode of mania with psychotic features at the time. The Director’s concession in that case, which Judge Muscat observed to be properly made, was based upon the evidence of two psychiatrists, both of whom concluded that the defendant was unable to know, or could not reason about, the wrongfulness of his driving.
The prosecution submits, and the defence properly concedes, that I am not bound by the reasons of Judge Muscat for they are specific to a case where there was a concession about the availability of a mental incompetence defence. The prosecution further points out that it is unclear whether the concession (and therefore his Honour’s characterisation of it being properly made) even contemplated the decision of Gray J in Schwark. Upon my interpretation of Schwark, that matters not. I do not know if, and if so why, there is a difference in the prosecution’s position regarding the law between Kitt’s matter and this matter. I am not bound by Kitt, however, it does stand as an example of a case in which a mental incompetence defence has attached to a dangerous driving offence arising from limb (1)(b) of s 269C, which is concerned with a person’s ability to know the wrongfulness of their driving conduct in consequence of suffering from a mental impairment.
In NSW, the inability of a person to understand the wrongfulness of his driving conduct on account of schizophrenia manifesting in persistent persecutory delusions has been determined by the Court of Criminal Appeal to warrant a special verdict of not guilty by reason of mental illness.[69]
[69] Masters v The Queen (2022) 102 MVR 223.
Conclusion concerning conduct which gives rise to an offence involving dangerous driving
An offence of dangerous driving is only committed at the point at which the defendant’s driving becomes dangerous and not before. Therefore, it is the dangerous manner of the driving which constitutes an offence, not mere driving. The defendant need not intend to drive dangerously or badly, however, in my view, the defendant must intend to drive in the manner which constitutes the dangerous driving.
I am unable to reconcile the requirement for an act of dangerous driving to be voluntary with a proposition that, for the purpose of an assessment of a defendant’s mental competence to commit an offence of driving dangerously, the mere act of driving disengaged from its dangerous quality constitutes the conduct which must be considered. I do not accept the prosecution’s analysis which equates driving simpliciter with the conduct giving rise to the driving offences.
The prosecution’s case against the defendant is that she drove a vehicle at high speed which was dangerous to other road users. It is conceded that driving at such speed was objectively dangerous. The prosecution need not prove that the defendant intended to drive at a dangerous speed. However, in my view, the prosecution would have to prove that the defendant intentionally (or voluntarily) drove at high pre-collision speed – for that act of driving is the act which constitutes the (objectively) dangerous driving. This, in my view, is the conduct giving rise to the driving offences, and therefore, the conduct by reference to which mental competence is to be evaluated.
Mental competence
In this case, the defendant was mentally incompetent to commit the driving offences if, at the time of driving at high speed on the Port River Expressway prior to the collision, she was suffering from a mental impairment and, in consequence of the mental impairment, she did not know that the driving was wrong; that is, she could not reason about whether the driving at high speed, as perceived by reasonable people, was wrong.
Mental impairment
By s 269A of the CLCA, mental impairment includes a mental illness, which means a pathological infirmity of the mind (including a temporary one of short duration).
The medical records catalogued by Dr Nguyen establish that the defendant has a long history of psychiatric illness which has been characterised by psychoses. The defendant’s psychiatric history supports Dr Nguyen’s conclusion that the defendant suffers from schizoaffective disorder. Schizoaffective disorder is a pervasive psychotic disorder.
The prosecution accepts that at the time of undertaking the pre-collision driving, the defendant was suffering from a mental impairment in the form of an acute relapse of her schizoaffective disorder. I accept Dr Nguyen’s conclusion, and accordingly I find, that at the time of driving on the Port River Expressway on 1 November 2022, the defendant was suffering an acute relapse of her schizoaffective disorder. That conclusion is well supported by the defendant’s reported experience of delusions in the weeks preceding the collision and by the treatment subsequently administered.
Knowledge of wrongfulness
As the note to s 269C(1)(b) of the CLCA makes clear, it adopts the test of knowledge that conduct is wrong as stated by Dixon J in his direction to the jury in R v Porter[70] (minus the exclusion). Dixon J directed the jury on this topic as follows:[71]
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 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.
[70] (1933) 55 CLR 182.
[71] Ibid 189-190.
The note to s 269C(1)(b) excludes from consideration whether the defendant could reason with a moderate degree of sense and composure – the ‘Porter gloss’.
In Question of Law Reserved (No 1 of 2021),[72] Livesey JA (as he then was) stated:[73]
The text of paragraph 1(b) and the drafting note make clear that what had been described as the “Porter gloss” has been removed. As Nicholson J observed in R v Lado, the test therefore no longer incorporates whether the defendant could reason with a moderate degree of sense and composure. Nonetheless, it must still be determined whether the defendant recognised that the alleged conduct was wrong by the standards of everyday reasonable people.
[72] Question of Law Reserved (No 1 of 2021) (2021) 140 SASR 135.
[73] Ibid [111].
It must be shown that the defendant did not know that the conduct was wrong by reference to the everyday standards of reasonable people, as opposed to knowing that the conduct was contrary to law.[74]
[74] Stapleton v The Queen (1952) 86 CLR 358 [375]; Question of Law Reserved (No 1 of 2021) [127].
In R v Childs,[75] Lovell J, determining whether a defendant was mentally competent to commit an offence of attempted murder by shooting considered whether s 269C(1)(b) requires proof of complete incapacity on the part of a defendant to know that their conduct is wrong. His Honour said:[76]
Under s 269C(1)(b) of the Act, the defendant must prove that he or she does not know that their conduct was wrong. The term 'know' means understand, appreciate or comprehend. An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from having the capacity to know that he or she ought not do the act. The wording of the section supports the interpretation that the defendant must establish that, at the time he fired the shots at Mr Evans, his mental impairment resulted in a complete incapacity to reason as to what is right or wrong according to ordinary standards.
Dr Haeney was cross examined about his understanding of the test set out in s 269C(1)(b) of the Act. In particular, he was questioned about whether the defendant had a total incapacity to reason or whether he retained some capacity. Dr Haeney, correctly in my view, answered that question in the context of the wording of s 269C(1)(b). That is, he conceded that, in a general sense, the defendant retained a capacity in that he could do and say things leading up to the shooting that demonstrated a capacity to reason. That, however, as Dr Haeney observed, is not the way the test is worded. The test is whether he retained any capacity to reason that his conduct was wrong as perceived by reasonable people. Dr Haeney was of the opinion that, on the balance of probabilities, he had no capacity to reason that his conduct was wrong as perceived by reasonable people.
I agree with Dr Haeney’s understanding of the test. The test is not directed towards an incapacity to reason on anything and everything; it directs attention to a narrower issue. The test requires the court to consider whether a defendant has a total incapacity to know that their conduct was wrong; that is, that they could not reason that their conduct was wrong as perceived by reasonable people. The relevant time is the time the offence is committed. In this matter, the relevant time is when the defendant fired the gun.
[75] R v Childs [2023] SASC 103.
[76] Ibid [56]-[58].
I have determined that the mental element for an offence of dangerous driving involves a willed act of driving which is objectively dangerous, as opposed to a mere willed act of driving. Therefore, in this case, in order to displace the presumption of mental competence, the defendant must establish on the balance of probabilities that in consequence of her mental impairment, she did not know that her conduct in driving at speed prior to the collision was wrong.
I am to determine the question of whether the defendant knew that her driving conduct was wrong as a matter of fact, having the benefit of Dr Nguyen’s expert opinion evidence.[77] Although the prosecution has not led any contrary expert opinion evidence, I am not obliged to accept Dr Nguyen’s opinion.[78]
[77] Question of Law Reserved (No 1 of 2021), (2021) 140 SASR 135 [197] (Livesey JA).
[78] Murphy (A Pseudonym) v The King [2023] SASCA 107 [132] (Livesey P, Lovell JA and Buss AJA).
Dr Nguyen is a qualified and experienced forensic psychiatrist. His evidence was detailed, measured and, in my assessment, given in a manner which was intended to assist the court in arriving at an accurate appraisal about the defendant’s mental capacity and functioning. The facts relating to the defendant’s driving conduct and post-collision statements are admitted by agreement,[79] and the history provided to Dr Nguyen by the defendant is accepted by the prosecution.[80]
[79] T7; Exhibit P1 (statement of agreed facts).
[80] T69.
I accept Dr Nguen’s conclusion that at the time of driving, the defendant was suffering from persistent persecutory delusions, which were a product of the relapse of her schizoaffective disorder. The experience of such delusions formed part of the defendant’s mental state both before and after the collision. The defendant’s report of being followed by a small security vehicle represented a persistent persecutory delusion, which is a fixed false belief. Dr Nguyen was not challenged in respect of his characterisation of this phenomenon. The defendant’s claim of being following by a vehicle is a theme which can be traced back to four to five weeks prior to the collision, based on her report to staff at the QEH on 2 November 2022.
Dr Nguyen explained that the defendant drove to escape from the small security vehicle which was chasing her, being the persecutory delusion which was operating upon her. The defendant’s driving to escape this perceived chase was responsive to the persecutory delusion. I accept Dr Nguyen’s conclusion that the delusion coloured the defendant’s ability to reason about the wrongfulness of her conduct in the way that a reasonable person would. I accept Dr Nguyen’s explanation for the defendant's inability to reason about the wrongfulness of her conduct of driving at speed being that the persistent persecutory delusion of being chased caused her to believe that she needed to drive in that way in order to get away from the perceived following car.
I accept Dr Nguyen’s evidence that he did not examine the defendant in great depth regarding her report of needing to race a car to prove her love for her ex‑partner. Although Dr Nguyen’s report on its face seemed to equate the delusions about being followed by a small security vehicle and needing to race as explanations for the defendant’s inability to know the wrongfulness of her driving conduct, by the end of his evidence it was clear that it was the former delusion which unequivocally supported his ultimate opinion. I accept Dr Nguyen’s evidence that the defendant’s description of a need to race does not detract from the intensity and consequence of the persistent persecutory delusion about being followed or chased by the small security vehicle and needing to get away from it.
The prosecution points to the defendant’s reported actions of driving to get dope and of needing to race as being contra-indicative of an inability to reason about whether her conduct in driving dangerously prior to the collision was wrong. The reported (or reportedly intended) trip to get dope was, as I understand the history given by the defendant in the AWP interview, punctuated by the stop at a Mawson Lake’s service station and the diversion to Gawler. Even if, as Dr Nguyen conceded, the defendant was able to reason about the wrongfulness of acquiring drugs, I am unable to see how such a state of thought is incompatible with the defendant subsequently feeling compelled to drive in a particular manner to escape from a delusive pursuer.
To the extent that Dr Nguyen accepted that the defendant formed an intention to race, he said that was from ‘the history that was available’.[81] It was noteworthy that Dr Nguyen himself did not obtain a history of racing in the course of AWP interview. The singular reference to needing to race seems to derive from the JNH discharge summary which includes the notation “[s]he also had delusional thinking that she had to ?race? the car that swerved her for her partner’s love…”[82] There is no evidence before me as to what the question marks either side of the word ‘race’ are intended to denote. It is not unreasonable to hold a doubt as to whether that word was used. At all events, Dr Nguyen’s evidence was ultimately that he did not evaluate the intensity of the need to race belief. On the assumption that the defendant could reason about the wrongfulness of racing (which is based upon her use of the expression ‘race’), in the opinion of Dr Nguyen, her reasoning ‘would not be considered to be consistent with an ordinary person’.[83] Given the lack of certainty about, and context surrounding, the defendant’s use of the term ‘race’, and the conditional nature of Dr Nguyen’s responses to questions on the topic of the defendant’s capacity to reason about racing, I am not prepared to conclude that the defendant formed an intention to race. As I have said, I accept Dr Nguyen’s evidence that the defendant’s expression of thought on this topic is subservient to the small security vehicle delusion.
[81] T52.
[82] Exhibit D5, p.13.
[83] T53.
Finally, the prosecution points to the defendant’s mental competence to commit the offences of leaving the scene and their temporal proximity to the driving offences as an indicator of mental competence with respect to her conduct in driving dangerously. I accept Dr Nguyen’s evidence that the point of distinction between the two sets of offences relates to the presence of a clear persecutory delusion rendering the defendant unable to know the wrongfulness of her conduct in respect of the driving offences, and the absence of any clear delusion relating to her conduct in leaving the scene. I do not accept the prosecution’s submission that the defendant’s ability to reason about the wrongfulness of leaving the scene of the collision imputes to her an ability to have reasoned about the wrongfulness of her earlier dangerous driving conduct as a reasonable person would have.
The prosecution did not, through cross‑examination of Dr Nguyen, weaken or mitigate the causal link between manifestation of the defendant’s acute schizoaffective disorder in the form of a persistent persecutory delusion about being chased by a small security vehicle and the defendant’s inability to reason about whether her pre-collision conduct as perceived by reasonable people was wrong.
Findings
I make the following findings relating to the defendant’s mental competence:
1.The defendant has a long-documented history of psychiatric illness, which has coincided with her use of cannabis and methylamphetamine.
2.There have been historical occasions on which the defendant has experienced drug induced psychoses.
3.The defendant suffers from schizoaffective disorder, which is a pervasive psychotic disorder. She is currently in relative remission.
4.In the weeks preceding the collision on 1 November 2022, the defendant had been experiencing persistent persecutory delusions which included delusions about being followed.
5.Following the collision, when the defendant first spoke to medical personnel at the QEH on 2 November 2022, she reported that she was being chased or followed by another car from which she was trying to get away and she admitted to driving at speed.
6.The defendant repeated her report of being followed by another car (a ‘small security vehicle’) and driving to get away to medical staff at JNH during her admission between 3 November 2022 and 19 June 2023, and to Dr Nguyen during his interview of her at AWP on 26 March 2024.
7.I find that while driving on the Port River Expressway prior to the collision, the defendant experienced a paranoid persecutory delusion in the form of, or related to, being pursued by another vehicle (‘the persecutory delusion’) and that this delusion was the product of the defendant’s schizoaffective disorder which, at that time, was in acute relapse.
8.I do not consider that the methylamphetamine in the defendant’s system produced or substantially produced the persecutory delusion which the defendant experienced.
9.I accept that the defendant knew the nature and quality of her conduct of driving at speed on the Port River Expressway prior to the collision.
10.I accept that the defendant was able to control her conduct of driving at speed on the Port River Expressway prior to the collision.
11.I find that the persecutory delusion operated upon the defendant so as to interfere with her ability to reason about whether her conduct of driving at speed on the Port River Expressway prior to the collision was wrong, such that she did not know that the conduct was wrong.
Conclusion
I find on the balance of probabilities that at the time of driving at high speed prior to the collision on the Port River Expressway the defendant was suffering from a mental impairment, namely an acute relapse of schizoaffective disorder which caused her to experience a paranoid persecutory delusion, in consequence of which she did not know that her conduct was wrong; that is, she could not reason about whether the conduct, as perceived by reasonable people was wrong.
I find that the defendant was mentally incompetent to commit the offences of aggravated causing death by dangerous driving (count 1) and three counts of aggravated causing harm by dangerous driving (counts 2, 3 and 4). I record a finding to that effect pursuant to s 269FA(3)(a) of the CLCA.
Further, I do not consider that the defendant’s mental impairment at the time of the pre-collision driving was substantially caused by self-induced intoxication, therefore, s 269C(2) of the CLCA has no role in relation to the way in which the defendant is to be dealt with under Part 8A.
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