R v Wiszniewski - [2020] SASC 226

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v WISZNIEWSKI
Criminal Trial by Judge Alone
[2020] SASC 226
Reasons for Decision of The Honourable Justice Bampton
27 November 2020
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPTED MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
MENTAL HEALTH - DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY
The defendant is charged with the offences of arson, attempted murder and in the alternative aggravated endangering life (“the alleged offending”) – where defendant pleaded not guilty and raised the defence of mental incompetence electing to have the investigation into his mental competence dealt with by Judge sitting alone pursuant to s 269B(1) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”) – where two psychiatrists provided reports and gave evidence that the defendant suffered a mental impairment and was mentally incompetent at the time of the conduct giving rise to the alleged offending – where the Director of Public Prosecutions contended that the defendant had not established that he was mentally incompetent at the time of the alleged offending – whether the defendant had a mental impairment as defined by s 269A of the CLCA – whether the defendant satisfied s 269C of the CLCA and was mentally incompetent at the time of the conduct giving rise to alleged offending in consequence of a mental impairment – where the trial of the defendant’s mental competence was tried first pursuant to s 269F of the CLCA.
Held: The defendant suffers a mental impairment as defined by s 269A of the CLCA – the defendant was mentally incompetent at the time of the conduct giving rise to the alleged offending pursuant to s 269C(1)(b) of the CLCA – finding recorded pursuant to s 269FA(3)of the CLCA that the defendant was mentally incompetent to commit the alleged offending – defendant conceded the objective elements of the alleged offending are established beyond reasonable doubt – finding recorded pursuant to s 269FB(2) of the CLCA that the objective elements are established – defendant found not guilty of the alleged offending and declared liable to supervision under Division 4 Subdivision 2 of the CLCA.
Criminal Law Consolidation Act 1935 (SA) s 11, s 85, s 29, s 269B, s 269C, s 269D, s 269F, s 269FA, s 269FB, s 269O(1)(b)(i), s 269X, s 270A; Mental Health Act 2009 (SA), referred to.
R v Ey (No 2) [2012] SASC 116, discussed.

R v WISZNIEWSKI
[2020] SASC 226
Criminal: Trial by Judge Alone

BAMPTON J: On 16 July 2018, Mr Wiszniewski lit three fires in the unit he shared with Rachel Cameron and then locked himself and Ms Cameron in the bathroom of the unit (“the conduct”). Mr Wiszniewski was the fulltime carer of Ms Cameron, who suffers Huntington’s disease. Ms Cameron is profoundly cogitatively and physically disabled, wheelchair bound, and unable to communicate.
Following their rescue by the Metropolitan Fire Service (“MFS”)…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Wiszniewski

Details

AGLC: R v Wiszniewski [2020] SASC 226
Case: [2020] SASC 226
Decision Date: 27 November 2020

CaseChat Overview and Summary

In the case of R v Wiszniewski, the defendant was charged with offences including arson, attempted murder, and aggravated endangering life. The defendant pleaded not guilty and raised the defence of mental incompetence, electing to have the investigation into his mental competence dealt with by the court sitting alone. The central issues were whether the defendant had a mental impairment and whether he was mentally incompetent at the time of the alleged offending due to that impairment.

The court found that the defendant did suffer a mental impairment as defined by section 269A of the Criminal Law Consolidation Act 1935 (SA). The evidence from two psychiatrists supported the conclusion that the defendant was mentally incompetent at the time of the alleged offending due to his mental impairment, specifically a delusional disorder. The court accepted the evidence of Dr Haeney, who opined that the defendant's conduct was an impulsive decision made in the context of his delusions and the distress he was experiencing. The court concluded that the defendant was mentally incompetent to commit the offences with which he was charged.

Consequently, the court found the defendant not guilty of the alleged offending by reason of his mental incompetence. The defendant was declared liable to supervision under Division 4 Subdivision 2 of the Criminal Law Consolidation Act 1935 (SA), and an order was made committing him to detention. The final orders included findings that the defendant had a mental impairment, was mentally incompetent at the time of the alleged offending, and that the objective elements of the alleged offending were established beyond reasonable doubt.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Dr Lavender reported that he was aware that Mr Wiszniewski had made complaints about Ms Cameron’s management by previous psychiatrists, when she was an inpatient some time before Dr Lavender’s involvement. Dr Lavender concluded his letter stating that:[28]My impression from discussing matters with Peter regarding Rachel and information he gave me regarding his neighbour was that he had persecutory ideation and beliefs about his neighbour and that there was tension and suspicion between them but not open conflict.[28] Exhibit D7.The psychiatric evidence The reports of Dr Smith[29] and Dr Haeney[30] referred to above were received into evidence and both gave evidence during the investigation.[29] Exhibits D1 and D2.[30] Exhibit D3.Dr Cassie Smith Dr Smith stated that the impression following the initial assessment at the Royal Adelaide Hospital was that Mr Wiszniewski: … presented with a long-standing, unspecified psychotic illness, possibly schizophrenia. He was placed on an involuntary inpatient treatment order, commenced on an antipsychotic medication Risperidone, 1 mg and was transferred to James Nash House to undertake further assessment and management. Dr Smith stated in her report dated 13 May 2019[31] that Dr Paul Furst assessed Mr Wiszniewski on his admission to James Nash House. Dr Furst’s impression was that Mr Wiszniewski was possibly showing symptoms of a delusional disorder, persecutory type. Dr Furst noted that there was no apparent evidence of mood symptoms and he was not suicidal. Mr Wiszniewski’s prescription of Risperidone was increased to 3 mg daily which Mr Wiszniewski reported slowed down his thoughts. [31] Exhibit D1. Dr Smith stated that when she reviewed Mr Wiszniewski the day following his admission he displayed “pressure of speech and underlying irritability”. She said that: It was extremely difficult to interrupt his conversation and he was tangential (his train of thought wandered, not returning to the initial topic of conversation). He was preoccupied with a number of paranoid and persecutory delusional beliefs as described above … He denied setting the fire and blamed his neighbour. He had not eaten anything since his arrest, drinking only water with sugar. He indicated he would not eat anything until he was released from custody. Dr Smith reported that Mr Wiszniewski had no prior contact with the mental health service in South Australia and that he gave a report of a period of depression diagnosed by a general practitioner. Collateral information was obtained from Mr Wiszniewski’s sisters on his admission. Dr Smith said that they described Mr Wiszniewski as an “intelligent, high functioning and intensely spiritual man”. They could not recall him having any paranoid ideas as an adolescent, however, they felt he began to develop some issues with authority in his thirties and began feeling victimised by police. He was described as “a bit of a loner, but had some friends”. Family closest to him described a recent change a few years ago where he had become fixated on events from the past, developed paranoid beliefs and that his appearance had become dishevelled. His family had also noted that he suffered numerous stressors prior to his arrest, including his partner’s physical deterioration, frustration with the transition from Disability SA to NDIS, and issues with his male neighbour.

Decision

Reasons for decision

It was contended that at the time he gave a description of what occurred and attempted to deflect blame, he had not been undergoing treatment for very long. He has since undergone treatment and come to terms with what has happened and is coming to the realisation, as a result of his treatment, that there is an issue that needs to be addressed. It was further submitted that at no time has Mr Wiszniewski really been able to understand what occurred at the moment he lit the fires. It was proffered that Mr Wiszniewski may probably never know what was going on, his life was in turmoil, he was clearly distressed and upset and his delusional beliefs fed into his thought processes. Section 269FA conclusion and finding Dr Smith and Dr Haeney are of the opinion that Mr Wiszniewski suffers a mental impairment and at the time of the conduct he was mentally incompetent. Dr Smith’s evidence in cross examination regarding legal versus moral wrong and Mr Wiszniewski’s motivations at the time of the conduct was a little unclear. I infer it is her opinion that Mr Wiszniewski knew it was legally wrong to light the fires at the time of his conduct but that he was not able to reason about the wrongfulness of his actions as a reasonable person would because of his mental impairment. However, where Dr Smith’s evidence is unclear and differs from that of Dr Haeney, I prefer the evidence of Dr Haeney. Dr Smith and Dr Haeney are of the opinion that Mr Wiszniewski’s mental impairment is a psychotic illness. Dr Smith considers the psychotic illness he suffers is treatment resistant schizophrenia and Dr Haeney considers he suffers persistent delusional disorder. These conditions have similar symptoms and the same treatment. The RAH records detailing the psychiatric assessment of Mr Wiszniewski, as well as the references to Dr Furst’s and Dr Raeside’s assessments of him support the diagnosis of a psychotic illness. Dr Maxwell’s and Dr Lavender’s reports of their interactions with Mr Wiszniewski suggest he suffers delusions and paranoia. So too the evidence of Mr Auty-Jaldorn and evidence of Mr Wiszniewski’s barricading of his unit. Mental impairment is defined by s 269A of the CLCA to include a mental illness. I am satisfied that Mr Wiszniewski suffers a mental illness namely a delusional disorder as diagnosed by his treating psychiatrist, Dr Heaney. The evidence supports the conclusion that there was a deterioration in Mr Wiszniewski’s mental state as the stress of his situation in caring for Ms Cameron mounted. I accept Dr Haeney’s opinion arrived at following consideration of the available information and his assessments of Mr Wiszniewski that the conduct was on the balance of probabilities an impulsive decision that occurred in the context of the delusions under which he was labouring and the distress he was facing. I accept Dr Haeney’s evidence in response to the prosecution’s assertion that Mr Wiszniewski’s behaviour was “rational” following the conduct. Dr Haeney said that behaviour referred to by the prosecution is not inconsistent with a delusional disorder and that in his opinion Mr Wiszniewski was psychotic at the time.[95] [95] T103.

Ratio Decidendi

Legal Principle Established

In accordance with s 269FA(3)(a) of the CLCA, I record a finding that it has been established on the balance of probabilities that Mr Wisniewski was, at the time of the alleged offending, mentally incompetent to commit the offences with which he is charged.Section 269FB findings and declaration It was conceded by Mr Wisniewski that the objective elements of the alleged offending are established beyond reasonable doubt. Accordingly, I record a finding that the objective elements are established pursuant to s 269FB(2) of the CLCA. I find Mr Wisniewski not guilty of the alleged offending by reason of his mental incompetence and declare him liable to supervision under Division 4 Subdivision 2 of the CLCA. I make an order pursuant to s 269O(1)(b)(i) of the CLCA committing Mr Wiszniewski to detention.Orders1.Mr Wiszniewski has a mental impairment as defined by s 269A of the CLCA.2.Mr Wiszniewski was mentally incompetent at the time of the conduct giving rise to the alleged offending pursuant to s 269C(1)(b) of the CLCA.3.I record a finding pursuant to s 269FA(3) of the CLCA that Mr Wiszniewski was mentally incompetent to commit the alleged offending.4.Mr Wiszniewski has conceded that the objective elements of the alleged offending are established beyond reasonable doubt.5.I record a finding pursuant to s 269FB(2) of the CLCA that the objective elements of the alleged offending are established. 6.Accordingly, pursuant to s 269FB(3) of the CLCA, I find Mr Wiszniewski not guilty of the alleged offending and declare him liable to supervision under Division 4 Subdivision 2 of the CLCA.7.Pursuant to s 269O(1)(b)(i) of the CLCA, I make an order committing Mr Wiszniewski to detention.