R v Telford

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v TELFORD
Reasons for Decision of The Honourable Justice Perry
26 August 2004
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY
MENTAL COMPETENCE
The accused was charged with multiple counts of fraudulently appropriating property, forgery and falsification of accounts involving the misappropriation of over $20 million from his employer - he used the funds to maintain a pathological gambling addiction involving betting large sums on horse races - after electing for trial by judge alone, he raised a defence of mental incompetence, arguing that the gambling addiction was a mental impairment and that in consequence of the impairment, he was unable to control the conduct alleged to give rise to the offending - held that even if he was unable to control his gambling habit, the relevant conduct was the conduct associated with the fraudulent misappropriations - on the evidence, the accused had failed to discharge the onus on him to prove on the balance of probabilities that he was unable to control that conduct - finding accordingly that the presumption of mental competence had not been displaced.
Criminal Law Consolidation Act 1935 Part 8A, s 269A, s 269C, s 269E and s 269FA(3), referred to.
R v Wipa (1998) 196 LSJS 447; M'Naghten [1843] 10 Cl and Fin 200; 8 ER 718; Question of Law reserved for the Full Court [No 1 of 1997] (1997) 70 SASR 251, considered.

R v TELFORD
[2004] SASC 248
Criminal

PERRY J. The accused, Dennis Craig Telford, is charged in this Court on an information alleging 32 counts of fraudulently appropriating property contrary to s 189 of the Criminal Law Consolidation Act 1935 (“the Act”), 11 charges of forgery contrary to s 235 of the Act, and 20 charges of falsification of accounts contrary to s 179 of the Act.
The offences were alleged to have been committed between May 1999 and April 2002.
On 19 September 2003, the accused pleaded not guilty to all counts. He elected for trial by judge alone.
Mr Borick QC of counsel for the accused then intimated that he wished to raise a defence of mental incompetence.
Before proceeding further, pursuant to s 269WA of the Act, I ordered that the accused be examined by three medical specialists.
In pursuance of that order, reports were furnished by Mr Richard Balfour, a psychologist, and from two psychiatrists, Dr Peter Herriot and Dr Kenneth O’Brien.
After the reports were furnished, the matter proceeded to trial before me, commencing on 11 May 2004.
Pursuant to s 269E(1), I separated the question of the accused’s mental competence to commit the offences from the remainder of the trial.
Pursuant to s 269E(2), with the consent of both counsel, I exercised my discretion to proceed first with the trial of the mental competence of the accused.
At the outset of the trial, I admitted into evidence as exhibits an extended summary of the facts tendered by Mr Pearce of counsel for the Director of Public Prosecutions (“the prosecution summary”), the three reports to which I have referred, and a number of witness statements.
Mr Borick QC consented to the tender of the prosecution summary as an agreed item of evidence.
Neither counsel sought to call any of the witnesses, including the authors of the three medical reports.
They agreed that the witness statements and the reports were to be accepted as part of the evidentiary material before me.
In the result, the trial of the accused’s mental competence proceeded on the basis of the documentary exhibits.
Factual Background
Most of the following statement of the facts is extracted from the prosecution summary.
The accused is now 44 years of age.
He was born and raised in Mount Gambier. He has spent most of his adult life there.
On leaving school, he took up employment as a clerical officer with Softwood Holdings Credit Union (“Softwood Holdings”).
He later obtained a diploma in accountancy.
At the age of 29 he took up employment in companies controlled by Mr Allan Scott. In particular, he was employed by South-East Telecasters Ltd (“SET”), later known as Ascot Media Investments Pty Ltd (“AM”), and K & S Corporation Ltd (“K & S”).
SET operated a television station at Mount Gambier. K & S. operates a trucking business and related enterprises.
The accused was employed by SET from about October 1989 until 31 August 1999, and thereafter by K & S, until his arrest on 17 April 2002.
He was appointed company secretary of SET on 2 October 1989, a position which he retained until he commenced at K & S. He was appointed company secretary of K & S on 9 August 1989.
In addition to his role as company secretary, Telford was financial controller of both companies.
The accused has a history of gambling on horse racing, which appears to date back to about 1985. In that year, a fellow worker, who was an accountant employed at Softwood Holdings, encouraged him to bet on horse racing, and taught the accused a so-called system.
The accused used that system for about fifteen years.
At some stage, which is difficult to pin-point, what began as a recreational hobby turned into an obsession. He began wagering on credit in large sums of money, with two licensed bookmakers.
One of them was a licensed bookmaker named Seal; the other was an entity called Number One Betting Shop, later known as Sporting Bet Australia (Nobs).
The accused placed bets by telephone with both Seal and Nobs. He would give the name of the horse and the amount he wanted to wager. Each of the bookmakers kept a record and balanced his account at the end of each week.
If the accused made a loss over the week’s gambling, he would be obliged to make a deposit into either Seal’s or Nobs’ bank account, as the case may be, to balance the account.
If his winnings for the week exceeded his losses, the amount of the net credit would be paid to him.
Some indication of the pattern of his gambling is given in a statement furnished by Seal:
“I would not describe Craig Telford as a fanatical punter. When he commenced betting with me he was only betting in small amounts of about $1,000 to $2,000 in 1995. This amount steadily increased. Looking at my betting records I can see that from about September 2000 Telford started making bets between about $5,000 and $50,000 then from December 2000 he started making a few larger bets of $100,000. In June 2001 Telford made a bet of $200,000. The larger bets of $100,000 and $200,000 then started to become more frequent from about September 2001, and in March 2002 he started making a few $300,000 bets. In the last 18 months of betting I would describe Telford as a big punter. Whilst he was a big punter it wasn’t as if he had a gambling problem, he wasn’t placing regular bets on every race at every meeting it was more like large bets on specific races or the trots.”
If there was a debit balance on his account, the accused’s invariable habit was to meet any amount due by transferring funds from either SET, AM or K & S, to the bookmaker’s account.
In the event of a credit balance due to him on any weekly accounting by the bookmakers, the practice was that the bookmaker would transfer the credit into the accused’s own bank account or to someone else for his benefit.
The transfer of funds from either of the companies to the bookmakers was effected by the accused arranging electronic bank transfers. The fraud was concealed by forging various documents and creating false accounts, which gave the appearance that business debts incurred by the companies were being paid.
The accused was able to perpetrate the thefts by reason of the fact that he enjoyed a significant degree of independence as financial controller of the companies; was a signatory to the various bank accounts operated by the companies; had authority to approve payment of debts and to transfer money between the various bank accounts and to re-arrange investments of the companies; and was trusted by senior management.
The modus operandi adopted by the accused is summarised in the prosecution summary:
“Both corporations used electronic transfer of funds (EFT) to pay some of their accounts. Each company had similar systems in place for the use of EFT. At both Set / AM and then K & S Telford was one of a small number of employees authorised to approve the payment of accounts by EFT. Telford accomplished the bulk of the thefts by simple manipulation of the EFT systems and concealed them by forging various documents in order to create the impression that the various EFTs had been used to pay ordinary business debts of the company concerned whereas the reality was that the EFTs had been used to transfer funds into the account of one of the bookmakers in settlement of Telford’s debts.”
During the period over which the offences were committed, that is, just under three years, between May 1999 and April 2002, the accused misappropriated a total of $22,447,500 from the companies. This was made up by a total of 32 separate misappropriations ranging in amount from $20,000 to $3 million.
As I have explained, the accused’s practice was to place winnings in his own account, or otherwise to apply them for his own purposes. By managing his gambling in that way, he personally benefited to the extent of about $5,989,557.
Following the accused’s arrest, an extensive investigation was conducted into his financial affairs over the relevant period.
The overall picture which emerged from those investigations is summarised in the following passage in the prosecution summary:
“As has been stated, Telford’s misappropriations from SET / AM to the bookmakers totalled $22,447,500. Amongst other things, the investigations into Telford’s financial affairs revealed that during the period taken in by the charges Telford’s income from all sources other than monies received from the bookmakers totalled $1,224,125.64, that he received a total of $7,647,469 directly from the bookmakers, that the bookmakers paid a total of $700,011 to people who acted as agents for Telford in the purchase of property or horses thus making the net benefit Telford received from the bookmakers some $8,347,480. Of the amount that he received from the bookmakers Telford paid back to the bookmakers a total of $2,357,923 and his other expenditure totalled $4,928,016. At the time of his arrest Telford held a total of $1,563,928 in bank accounts in Australia, he was entitled or beneficially entitled to about $400,00 held in a bank account in New Zealand and a friend of his was holding $164,000 in cash on his behalf.”
The amount which I have previously referred to as the net benefit which the accused received from his gambling activities and misappropriations, namely $5,989,557, is the difference between the amount of $8,347,480, being the amount paid by the bookmakers to the accused or to others at his direction, and the sum of $2,357,923, which he paid back to the bookmakers.
The Statutory Provisions
The relevant provisions appear in Part 8A of the Act, which is headed “Mental Impairment”.
The central provision appears as s 269C which reads:
“269CA 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.”
In s 269A(1) there are two relevant definitions. They are:
“‘Mental illness’ means a pathological infirmity of the mind (including a temporary one of short duration).
‘Mental impairment’ includes-
(a)a mental illness; or
(b)an intellectual disability; or
(c)a disability of impairment of the mind resulting from senility,
but does not include intoxication.”
There is a presumption of mental competence:
“269DA person’s mental competence to commit an offence is to be presumed unless the person is found, on an investigation under this Division, to have been mentally incompetent to commit the offence.”
Section 269F sets out the procedure to be followed if the trial judge decides to proceed first with trial of the defendant’s mental competence to commit the offence, which is the case here. Relevantly, the section reads:
“269FIf the trial judge decides that the defendant’s mental competence to commit the offence is to be tried first, the court proceeds as follows.
Trial of defendant’s mental competence
A.(1) The court-
(a)must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant’s mental competence to commit the offence; and
(b)……
(2)……
(3)At the conclusion of the trial of the defendant’s mental competence, the court must decide whether it has been established, on the balance of probabilities, that the defendant was at the time of the alleged offence mentally incompetent to commit the offence and-
(a)if so - must record a finding to that effect;
(b)if not - must record a finding that the presumption of mental competence has not been displaced and proceed with the trial in the normal way.
*******
(5)……”
I would construe the sections to mean that where the defendant raises the issue of mental competence, the onus is on the defendant to prove on the balance of probabilities that he or she was not mentally competent.[1]
The Medical Opinions
[1] See R v Wipa (1998) 196 LSJS 447.
Dr Richard Balfour
Dr Balfour interviewed the accused for four hours at Yatala Labour Prison on 17 November 2003.
He reported to the court by letter of 2 January 2004.
He noted that the accused had never suffered from any serious physical illnesses, and did not have a history of any mental illness.
The accused has no history of drug abuse, except that for some years leading up to his arrest he has drunk alcohol to excess.
The accused told Dr Balfour that he is married. There are three children of the union, aged 8, 10 and 12 years.
The marriage was stable until about three years before the accused’s arrest, when the accused and his wife began having heated arguments, commonly precipitated by his returning home in an intoxicated state. His wife left him on a few occasions with the children, but returned.
According to the accused, his wife reacted badly to her discovery of his offending behaviour, of which she knew nothing prior to his arrest. At first she said that she wanted to divorce him, but she remains supportive. Dr Balfour considered the long-term future of their relationship to be uncertain.
The accused admitted to Dr Balfour that gambling had become an “obsession”.
Dr Balfour notes that the accused said:
“… that he functioned as if there were three levels in his life: family, work and gambling. He said that when he gambled he ‘switched off’ to the other areas of his life.
I asked Mr Telford why he had become addicted to gambling and he replied ‘I don’t know it was something that I was passionate. That passion changed from something that I enjoyed to something that controlled me’.
Mr Telford said that his offending commenced in 1999 and continued for approximately 3 years. He said that when he was not preoccupied with gambling he knew what he was doing was wrong. He acknowledges that he was able to avoid discovery by engaging in deception by falsifying a number of documents to hide the money trail and to maintain an appearance of financial propriety.”
Dr Balfour could find no clinical evidence to suggest that he accused suffers from a psychotic illness, that is, a break with reality, or from any intellectual disability.
However, he expressed the view that the accused suffers from a “pathological gambling disorder”. He expresses that conclusion in the following passage from his report:
“I believe that on balance it is most likely Mr Telford is an amateur / recreational gambler who developed a pathological gambling disorder that resulted in him offending; rather than him being an aspiring professional gambler who offended to indulge himself. Mr Telford meets the diagnostic criteria for having a pathological gambling disorder.
Pathological gambling disorder is an internationally recognised disorder (as described in DSM-IV) and is the subject of scientific enquiry.
The diagnostic criteria for Pathological Gambling are:
‘A. Persistent and recurrent maladaptive gambling behaviour as indicated by five (or more) of the following:
(1)is preoccupied with gambling (eg is preoccupied with reliving past gambling experiences, handicapping planning or planning the next venture, or thinking of ways to get money with which to gamble).
(2)needs to gamble with increasing amounts of money in order to achieve the desired effect.
(3)has repeated unsuccessful efforts to control, cut back, or stop gambling.
(4)is restless or irritable when attempting to cut down or stop gambling.
(5)gambles as a way of escaping from problems or of relieving a dysphoric mood (eg feelings of helplessness, guilt, anxiety, depression).
(6)after losing money gambling, often returns another day to get even (‘chasing one’s losses’).
(7)lies to family members, therapist, or others to conceal the extent of their involvement with gambling.
(8)has committed illegal acts such as forgery, fraud, theft, or embezzlement to finance gambling.
(9)has jeopardised or lost a significant relationship, job, educational or career opportunity.
(10)relies on others to provide money to relieve a desperate financial situation caused by gambling.
B. The gambling behaviour is not better accounted for by a Manic Episode.’”
From Dr O’Brien’s report, it appears that the letters “DSM” stand for “Diagnostic and Statistical Manual of Mental Disorders”, which is an American system of classification of mental disorders. Pathological gambling is also listed in the International Classification of Diseases (“ICD”) used by the World Health Organisation.
Pathological gambling is regarded as a “disorder of impulse control”.
The characteristics of a pathological gambling disorder are described by Dr Balfour in the following terms:
“Research evidence suggests that there may be a common psychobiological substrate underlying both pathological gambling and addictions to psychoactive substances which accounts for a number of similarities in the way the two disorders develop and are maintained. For example, pathological gamblers report experiencing an addictive euphoric sensation which is similar to the ‘high’ experienced by drug addicts; and pathological gamblers experience distressing withdrawal symptoms (which are similar to drug withdrawal) when they are unable to indulge in gambling and may act in ways which are out of character and irrational.
Furthermore, a common feature of pathological gamblers is that they hold a number of dysfunctional cognitions or irrational beliefs. Two dysfunctional conditions which are commonly observed in pathological gambling which appear to have a key role in the perpetuation of the disorder are the ‘Illusion of Control’ and ‘Chasing’. ‘Illusion of Control’ refers to the pathological gambler’s belief that a run of bad luck must come to an end; and that if they have been losing then the only way to get their money back is to continue gabling. It also refers to the gambler’s belief that one can master a skill in gambling and thus become a consistent winner. The ‘Illusion of Control’ explains why gamblers are industrious and expend a considerable amount of their time studying form guides in an attempt to design the elusive betting system which is infallible. ‘Chasing’ refers to the gambler’s urgent need to keep gambling (often with larger bets or the taking of greater risks) to undo a loss or series of losses. ‘Chasing’ is responsible for the snowballing financial difficulties pathological gamblers frequently experience.”

In his report, Dr Balfour addresses the question whether the condition of pathological gambling meets the legal definition of “mental illness” in s 269A of the Act. In Dr Balfour’s view pathological gambling is a “mental illness”, in that it is a “pathological infirmity of the mind”.
It follows that in Dr Balfour’s opinion, the accused suffered from a “mental impairment” at the time of the offences.
However, he declined to find that he was mentally incompetent.
In reaching that view, he expressed the opinion that the accused appreciated the nature and quality of the conduct, and was aware that it was wrong. Furthermore, he was not prepared to find that the accused was “unable to control the conduct” (s 269C(c)), as he was of the view that the accused’s “poor impulse control” related to his gambling and not to his offending behaviour.
He said:
“With regard to his offending behaviour, I believe that he made a premeditated decision regarding the type of offending he would engage in; evaluating the risks and potential rewards involved; and what type of measures he would take to manage the risks.
I believe that Mr Telford would have been able to control his conduct while offending.
I would view Mr Telford’s pathological gambling as being only indirectly responsible for his offending behaviour because he still had control over deciding if he would offend and how he would offend to finance his gambling.”
Dr Kenneth O’Brien
Dr O’Brien conducted two interviews with the accused at Yatala Labour Prison, on 23 December 2003 and 8 January 2004. He reviewed the prison health file as well as the material on the court file.
Dr O’Brien agrees that there is no evidence of any psychotic illness or thought disorder, and he was of the view that the accused did not demonstrate “any features or mental illness, as such”.
When he came to deal with the statutory provisions, more particularly s 269 of the Act, he had some difficulty in accepting the appropriateness of the terminology. He described the definition of “mental illness” as a “pathological infirmity of the mind” as “a broad and rather unhelpful definition”, open to varying interpretations.
However, he agreed with Dr Balfour that the accused suffered from a pathological gambling addiction within the meaning of the diagnostic criteria in both DSM and ICD. He goes on to observe:
“It may be emphasised that the inclusion in (or mention of) a diagnostic classification manual, be it the DSM system or the ICD, does not necessarily transform that ‘condition’ into a mental illness. For my part I do not regard problem/pathological gambling to fall within, what I have always considered to be, the parameters of mental illness.”
He observed that after further scientific inquiry and research, it may be that the stage will be reached at which pathological gambling is “unambiguously regarded as a form of mental illness”. However, he was of the view that that stage has not yet been reached.
Not surprisingly, given that view, he regarded the process of addressing the criteria relevant to the formation of a view as to mental competence within the meaning of s 269C as a “redundant exercise”.
But in order to assist the court in case the court took the view that the condition described as “problem/pathological gambling” was a mental illness, he expressed the view that the accused knew the nature and quality of his conduct and knew that it was wrong.
As for the question whether the accused was “unable to control the conduct” (S 269C(c)), he offered the following opinion:
“By his own description, Mr Telford’s behaviour had a repetitive and ‘driven’ quality about it. I accept that some mental health professionals, including psychiatrists, might well term this irresistible. Should the court accept this view and also consider that his gambling behaviour is a ‘pathological infirmity of the mind’, then it would seem that Mr Telford would qualify for a ‘mental impairment’ defence. Again, with respect, I would not subscribe to such reasoning. I would view Mr Telford’s gambling behaviour as being on a continuum and for much of his gambling life he was quite capable of exercising a clear choice with respect to the behaviours in which he indulged (gambling). I am prepared to accept that towards the ‘end’ of his gambling career matters got increasingly out of his control and his behaviour became more and more reckless and irresponsible. However, to say that such behaviour was totally irresistible presents a considerable dilemma for a professional examiner such as I. In such extreme circumstances, I cannot offer a firm opinion other than to say that the earlier components of that continuum of behaviour were certainly, in my view, quite within his volitional control.”
Later he expressed the conclusion:
“… it is the court’s prerogative to decide what does or does not constitute a ‘pathological infirmity of the mind’. Should the court deem that Mr Telford’s condition is indeed a ‘pathological infirmity of the mind’ I have gone on to express the view that in my opinion Mr Telford knew the nature and quality of his conduct and knew that that conduct was wrong. The volitional component of the test is more problematical but, as I have argued in the body of my report, I cannot offer a firm opinion that at any time his gambling behaviour had such an irresistible quality that would qualify him for a ‘mental impairment’ defence.”
Dr Peter Herriot
Dr Herriot had two interviews with the accused at Yatala Labour Prison: the first on 4 December 2003 and the second on 10 December 2003. In addition, he read the court file, including the prosecution summary.
In his report he expressed the view that the accused:
“… displayed symptoms consistent with diagnoses of both pathological gambling and alcohol dependence. There was no other evidence of any other mental illness at the time. I conclude that he therefore was suffering from a mental impairment given that both these conditions are classified as mental illnesses.”
After setting out the terms of s 269C, Dr Herriot goes on to express his conclusion in the following terms:
“Mr Telford was aware of the nature and quality of the conduct given the nature of the activities and deception that took place and although he stated [he] did not think about the right or wrong of the situation, he did know that he conduct was wrong. As to whether Mr Telford was able to control the conduct, he was clearly in the grip of an extremely strong urge to gamble that he found very hard to subdue and which seemed to override all other considerations. I do not however conclude that he was unable to control his conduct. On these grounds, it is my opinion that Mr Telford was mentally competent at the time of these offences.”
Findings as to the accused’s mental condition
There are obviously some differences of opinion between the three medical experts whose reports are before the Court. Resolution of those differences is not made any easier by reason of the fact that neither counsel saw fit to call any of the experts to give evidence.
I am therefore in the position of having to do my best to come to findings as to the likely mental state of the accused, on the basis of the written material alone.
Where necessary to resolve differences, I prefer the opinions expressed by Dr Balfour. He had an extended interview with the accused, and as well, gives an impressively detailed account of the accused’s personal history.
The terms in which Dr Balfour dealt with the specific questions which arise in the context of the statutory provisions indicated a good grasp of those provisions.
Dr Balfour makes a clear separation in his report between the accused’s control of his gambling and his control of his “offending behaviour”.
On the other hand, Dr O’Brien expresses his opinion as to the accused’s ability to control his conduct in terms which suggests that he regarded the question as relating only to his ability to control his gambling. He said, for example:
“.. for much of his [the accused’s] gambling life he was quite capable of exercising a clear choice with respect to the behaviours in which he indulged (gambling).” (my emphasis)
In his conclusion he states:
“I cannot offer a firm opinion that at any time his gambling behaviour had such an irresistible quality that would qualify him for a mental impairment defence.” (my emphasis)
With respect to him, Dr O’Brien does not appear to address the more relevant question, which is whether the accused was able to control his conduct insofar as it related to the fraudulent misappropriation of his employer’s funds, which is the conduct alleged to constitute the offending.
As for Dr Herriot, I am unable to discern whether he had in mind the relevant distinction. There may be an element of ambiguity in his conclusion:
“As to whether Mr Telford was able to control the conduct, he was clearly in the grip of an extremely strong urge to gamble that he found very hard to subdue and which seemed to override all other considerations.” (my emphasis)
Dr Herriot does not expressly distinguish between control of the gambling and control of the actions associated with the criminal conduct.
I stress that in making those comments about the opinions expressed by Dr O’Brien and Dr Herriot, I do not mean to criticise either of them. They gave most helpful reports. The technicalities involved in the statutory provisions are complex and not easy to apply.
But the distinction between control of the gambling and control of the offending behaviour is, for reasons which I will come to, critical in determining whether the statutory criteria to determine mental incompetence are made out.
On the basis of the opinions expressed in the reports and the other factual material which is before me, I find that the accused suffered at the relevant time from a pathological gambling disorder answering to the classification of an “impulse control disorder”, within the diagnostic criteria which is contained in the Diagnostic and Statistical Manual of Mental Disorders.
While I understand the difficulties experienced by Dr O’Brien in regarding such a condition as a “mental illness” for the purpose of the statutory provisions, in my view, the pathological gambling disorder was a pathological infirmity of the mind within the meaning of the definition of mental illness in s 269A(1) of the Act.
It follows that it was within the definition of “mental impairment” for the purposes of s 269C.
Assuming for one moment, (contrary to the conclusion which I ultimately reach), that the word “conduct” in s 269C may apply to the accused’s conduct in gambling rather than his conduct in committing the fraudulent misappropriations, it is nonetheless an open question as to whether the evidence establishes, even on a balance of probabilities, that the accused was unable to control the conduct within the meaning of s 269C(c).
Dr Balfour sets out the accepted diagnostic criteria for pathological gambling as described in DSM-IV in the passage from his report which I have quoted above. It will be seen that there are ten criteria. The tabulation of the criteria are preceded by the words “A persistent and recurrent maladaptive gambling behaviour as indicated by five (or more) of the following …”. Dr Balfour does not indicate which five (or more) of the criteria he would regard as being applicable to the accused.
Later, as I have already indicated, Dr Balfour states:
“I believe that Mr Telford’s poor impulse control relates to his gambling and not to his offending behaviour.” (my emphasis)
Dr Herriot’s report would not seem to take the matter much further, in that although he refers to “pathological gambling” and “extremely strong urge to gamble that he found very hard to subdue and which seemed to override all other considerations”, he does not expressly refer to the degree of control which the accused might have been able to exercise with respect to his gambling habit, if he was able to control it at all.
Dr O’Brien seems clearly to be of the view that at least most of the time when the accused was engaged in heavy gambling, he was able to control it. Dr O’Brien states:
“… for much of his gambling life he was quite capable of exercising a clear choice with respect to the behaviours in which he indulged (gambling).”
The words “unable to control” in s 269C(c) must be taken to identify a state of mind in which the accused is unable to form and implement a decision either to gamble or not.
The word “unable” admits of no qualification. But the difficulty posed by the state of the evidence is that it is impossible to find, even accepting the diagnosis that the accused is a pathological gambler, that this necessarily means that the impairment of his ability to control gambling is so acute that it is right to say that he is “unable to control’ the tendency.
Without wanting to place undue reliance upon the statement of Mr Seal, which I have quoted above, it appears from that statement and from other evidence, that the accused did not bet every day, and neither did he bet on every race. Clearly enough there must have been some degree of selection of races and of horses which informed the decision to place a particular bet at a particular time.
In the result, on the whole of the evidence, even allowing for the fact that the accused describes himself as having a gambling “obsession”, I am unable to be satisfied on the balance of probabilities that the accused was “unable to control the conduct”, if the word “conduct” is taken to refer to his gambling habit.
I turn to the accused’s actions in carrying out the offences the subject of the charges. His conduct in that respect involved a lengthy and calculated course of conduct over a period of time, including the giving of instructions to other members of staff; in arranging telephone transfers of funds; in forging records; and taking other steps to execute, in a clandestine fashion, quite intricate transactions.
On no view of the evidence could it be suggested that the accused was “unable to control” that conduct. Mr Borick QC did not suggest otherwise.
The Issues
Mr Borick QC argued only one point. It is a short point.
He contended that the word “conduct” where the word appears in s 269C in the circumstances of this case, applies to the accused’s conduct in gambling, rather than his conduct in committing the substantive offences.
He argued that the phrase “conduct alleged to give rise to the offence” was in the circumstances ambiguous, and that the ambiguity should be resolved in favour of the accused.
He further contended that on the basis of the expert reports, his client was suffering from a mental impairment within the meaning of the section, and that he had established on the balance of probabilities that as a result he was “unable” to control the [gambling] conduct.
In my view, the argument fails both with respect to the necessary factual findings and with respect to the construction of the section.
As for relevant factual findings, I have already concluded that the evidence falls short of establishing on the balance of probabilities that even if the relevant conduct was to be regarded as the accused’s actions with respect to gambling, he was unable to control that conduct.
Even if I was to be wrong in that conclusion, I would not accept the construction of the section suggestion by Mr Borick QC.
In my view, the “conduct” within the meaning of that word in the context of the section, refers to the actions which constitute the actus reus of the offence.
Before the enactment of Part 8A of the Act, which was inserted by Act No 91 of 1995, operative from 2 March 1996, the question of mental competence was dealt with by the common law rules relating to insanity. The common law principles find expression in which were known as the M’Naghten Rules,[2] which in turn involve proof that:
“… at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.”[3] (my emphasis)
[2] M’Naghten [1843] 10 Cl and Fin 200; 8 ER 718.
[3] Ibid 209; 722.
Clearly, pursuant to the M’Naghten Rules, proof of the defence of insanity turned on proof of the state of mind of the accused at the time of committing of the act, that is, at the time of the commission of the actus reus.
Turning to s 269C, I start with the premise that the word “conduct” should be given a consistent meaning where it appears throughout the section.
Subparagraphs 269C(a) and (b) refer to knowledge of “the nature and quality of the conduct” and that “the conduct is wrong”. In doing so, they reflect the M’Naghten Rules. The words “is unable to control the conduct” go beyond the classic formulation of the M’Naghten Rules.
For a number of reasons, it seems to me that the legislature could not have intended by use of the expression “conduct alleged to give rise to the offence”, to be referring to conduct which occurred before the actus reus.
In the first place, if the legislature intended such a significant departure from the law as it had previously applied, one would expect to see a much clearer indication of such an intention.
Furthermore, the words “does not know the nature and quality of the conduct” and “does not know that the conduct is wrong” would be singularly inapt to apply, for example, in the circumstances of this case to the conduct of the accused in gambling, as opposed to his conduct in committing the substantive offences.
In the context of the M’Naghten Rules, from which they have clearly been drawn, those words attach to the state of mind of the accused at the time of the commission of the actus reus.
I find support for the approach which I have suggested in the judgment of Duggan J in Question of Law reserved for the Full Court [No 1 of 1997],[4] when he said, with reference to various questions which had been posed as to the construction and operation of Part 8A of the Act:[5]
“The interpretation of the relevant provisions in the Act cannot be divorced entirely from the common law as it had developed up until the passing of the Act. The test for mental incompetence draws heavily on common law concepts and expressions, and although the procedures introduced by the legislation represent a marked departure from that which was in existence before the Act was passed, the previous law is of some assistance in determining the legislative intention in introducing some of the new procedures.”
[4] (1997) 70 SASR 251.
[5] Ibid 258.
The common law principles which previously applied may properly inform the process of construction of the provisions now in question. The conduct for the purposes of s 269C(c) means the conduct which is a physical element in the commission of the offence.
In my view, for these reasons, the construction suggested by Mr Borick QC is untenable.
Conclusion
For the reasons which I have given, the accused has failed to satisfy the onus upon him to prove on the balance of probabilities that he was mentally incompetent to commit the offences charged.
In accordance with s 269FA(3)(b), I record a finding that the presumption of mental competence has not been displaced.
The consequence of that finding is that I must proceed with the trial in the normal way.
I will give to counsel an opportunity to make submissions as to how the trial should now proceed in light of the findings which I have made.

[2004] SASC 248

26 August 2004

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Criminal Liability

Mental Competence

Presumption of Mental Competence