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

1. 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.

2. Following their rescue by the Metropolitan Fire Service (“MFS”) and South Australia Police (“SAPOL”), both Mr Wiszniewski and Ms Cameron were taken to the Royal Adelaide Hospital (“RAH”) for treatment of suspected smoke inhalation.  Following assessment at the RAH Emergency Department, an inpatient treatment order level 1 authorising the detention of Mr Wiszniewski for a maximum of seven days under the Mental Health Act 2009 (SA) (“Mental Health Act”) was made on 17 July 2018.  The inpatient treatment order was confirmed by a psychiatrist on 17 July 2018. 

3. Mr Wiszniewski was transferred to James Nash House where he continues to be detained.

4. Mr Wiszniewski is charged with the offences of arson,[1] attempted murder,[2] and, in the alternative, aggravated endangering life[3] (“the alleged offending”).

   [1] Contrary to s 85(1) of the Criminal Law Consolidation Act 1935 (SA).

   [2] Contrary to s 11 and s 270A of the Criminal Law Consolidation Act1935 (SA).

   [3] Contrary to s 29(1) of the Criminal Law Consolidation Act 1935 (SA).

5. The consultant forensic psychiatrist, Dr Cassie Smith, prepared a report dated 13 May 2019[4] following her interview with Mr Wiszniewski wherein she expressed the opinion that Mr Wiszniewski has a primary psychotic illness, namely treatment resistant schizophrenia.  Dr Smith concluded that Mr Wiszniewski was fit to stand trial and that he has a mental incompetence defence available to him.  Dr Smith confirmed her opinion in a further report dated 7 October 2019.[5]  Mr Wiszniewski’s treating psychiatrist, Dr Owen Haeney,[6] considered in his report dated 3 October 2019[7] and confirmed in a letter dated 15 May 2020[8] that Mr Wiszniewski was suffering persistent delusional disorder at the time of the alleged offending and that he has a mental incompetence defence available to him.

   [4]    Exhibit D1.

   [5]    Exhibit D2.

   [6]    A consultant forensic psychiatrist at James Nash House.

   [7]    Exhibit D3.

   [8]    Exhibit D8.

6. Relying on the opinions of Dr Smith and Dr Haeney, Mr Wiszniewski pleaded not guilty at arraignment in this Court by reason of mental incompetence.

7. Mr Wiszniewski is presumed, pursuant to s 269D of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”), to be mentally competent to commit an offence unless he is found, on an investigation under Part 8A of the CLCA, to have been mentally incompetent to commit the alleged offending.

8. Mr Wiszniewski elected to have the investigation under Part 8A of the CLCA dealt with by a Judge sitting alone pursuant to s 269B(1) of the CLCA.

9. The trial of Mr Wiszniewski’s mental competence to commit the alleged offending was tried first pursuant to s 269F of the CLCA.

   Section 269FA trial of Mr Wiszniewski’s mental competence

10. Mr Wiszniewski is deemed mentally incompetent to commit the alleged offending if he satisfies the requirements in s 269C of the CLCA. Section 269C provides:

    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.

11. The Director of Public Prosecutions (“the Director”) did not call any psychiatric evidence.  It was submitted that the Director would be “critiquing” the opinions of Dr Smith and Dr Haeney.

12. The prosecution case is that Mr Wiszniewski was motivated or triggered by the stress and frustration he endured in caring for Ms Cameron, a matter that was the subject of rational thought processes, and the conduct was the product of someone who did appreciate the wrongfulness of his conduct at the time he committed the offending.

    The events of 16 July 2018

    Haidyn Hugh Auty-Jarldorn

13. In his affidavit,[9] Haidyn Hugh Auty-Jarldorn stated that he was a neighbour of Mr Wiszniewski and that he has had issues with Mr Wiszniewski in the past as Mr Wiszniewski had previously accused him of poisoning his water supply.  In the time that Mr Auty-Jarldorn had lived in his unit next to Mr Wiszniewski, he had rarely seen Mr Wiszniewski come out of the unit and, if he did, it was usually at night-time.  Mr Auty-Jarldorn was asleep on 16 July 2018 when his neighbour, Jaline Hurrell, woke him by knocking on his door saying she could smell smoke.  Ms Hurrell said her fire alarm had gone off a few times and that there was smoke coming off the roof of their unit block.  Mr Auty-Jarldorn gave his mobile phone to Ms Hurrell to ring 000.  He put his shoes on and ran to Mr Wiszniewski’s front door and:[10]

    … banged loudly on the front door to try and rouse them.  I was banging and then I realised that Peter was never going to answer the door anyhow.  I’ve known since I’ve lived here that Peter never answer’s (sic) the front door to anyone and I know it is barricaded so you can’t get in that way. …

    [9]    Exhibit P7.

    [10] Exhibit P7 at [4].

14. Mr Auty-Jaldorn then ran around the back of the unit.  He said that the gate was padlocked and he shouted out, “Peter” but there was no response.  He then climbed over the gate into the yard and continued yelling for Mr Wiszniewski and telling him to get out.  He could not get to the back door because of all the stuff in the yard.  Eventually, he saw a bathroom window slide open and saw Mr Wiszniewski telling him he had to help him get Ms Cameron out.  Mr Auty‑Jarldorn said that he was not able to get a metre up to the window because there was so much stuff up against the hot water system preventing access.

15. He said that there was no way he was going to be able to reach Mr Wiszniewski to help get Ms Cameron out as the bathroom window was too high and small and he knew that Mr Wiszniewski would not be able to get Ms Cameron up to the window.

16. He told Mr Wiszniewski there was no way he could pick her up and that he needed to go to the back door.  Mr Auty-Jarldorn managed to crawl over things and reach the back door but it was locked.  He then told Mr Wiszniewski that he had called the fire brigade and he went to wait with Ms Hurrell.

    Jaline Hurrell

17. Ms Hurrell stated in her affidavit[11] that her unit is in a set of three attached units which share the same roof.  Mr Wiszniewski’s and Ms Cameron’s unit is unit 2.  Mr Auty-Jarldorn lived on one side of unit 2 and she on the other.  Ms Hurrell described that she had “seen the male in unit 2 a few times, but not very often”.  Ms Hurrell had seen him go out sometimes around 5.00 pm or 6.00 pm, when he would take Ms Cameron for a walk in her wheelchair.  Ms Hurrell said that she “mainly avoided them” and stuck to herself.  She said, “I have tried talking to the male once but he seemed to ignore me which was kind of strange I thought”.

    [11] Affidavit of Jaline Mekah-May Hurrell affirmed 1 September 2018, provided to Dr Smith and Dr Haeney at time of seeking their reports, but not tendered as an exhibit.

    Probationary Constable Chantelle Ryder

18. Probationary Constable Chantelle Ryder recorded in her affidavit[12] that on 16 July 2018 she arrived at Mr Wiszniewski’s unit complex in Woodville Park soon after 7.30 am.  She saw white smoke emitting from the roof which appeared to be on fire.  She was told by members of the public that two persons were trapped in the bathroom of the unit.  She was told that the rear gate was locked and they were not able to get into the rear of the premises.

    [12] Exhibit P8.

19. She and another police officer jumped the rear fence.  She yelled out, “police”.  She heard a male yelling “Please help us” from behind a glass window.  She advised the man to step away from the window and proceeded to break the glass with a glass breaker.  She saw the man, whom she now knows as Mr Wiszniewski, in the bathroom.  She could hear that the shower was on.  Mr Wiszniewski told her that there was a female trapped with him who was wheelchair-bound.  Other police officers arrived at the scene.  Probationary Constable Ryder and another officer assisted Mr Wiszniewski to climb out of the bathroom window.  Probationary Constable Ryder noted that two officers who were attempting to force entry through the rear door were having significant difficulty.

20. Mr Wiszniewski refused to leave the area.  Probationary Constable Ryder asked Mr Wiszniewski to come out the front of the unit block while the police and MFS were working.  He refused and got in the way.  He seemed very concerned for Ms Cameron, who was still trapped.  Probationary Constable Ryder said that she had to physically force Mr Wiszniewski to the footpath as he was refusing to follow her directions.  She remained with Mr Wiszniewski, attempting to keep him calm as he appeared very distressed and concerned for Ms Cameron. 

21. Ambulance officers arrived on the scene and attempted to treat Mr Wiszniewksi but he refused until Ms Cameron was out of the premises. 

22. Just after 8.00 am, Probationary Constable Ryder heard on her police radio that both persons had been safely removed.  She then left Mr Wiszniewski in the care of paramedics.

    Constable Nikki Tiplady

23. In her affidavit,[13] Constable Nikki Tiplady stated that when she arrived at the scene numerous MFS vehicles were present and members of the MFS were fitting themselves with breathing apparatus.  She was in the company of Probationary Constable Ryder who smashed a window while she ran to the rear door of the house to try to gain entry.  The rear wooden door was closed and covered with a metal security door which was locked.  She began to kick the door, other officers jumped the fence and assisted in extracting Mr Wiszniewski through the bathroom window, while another officer assisted her in trying to gain entry through the rear door.  They broke the screen door and began kicking the main wooden door.  MFS officers then attempted to open the rear door with tools.

    [13] Exhibit P9.

24. It became apparent that the wooden door was barricaded from the inside and locked with bicycle padlocks to a metal structure inside the house, preventing access from the outside.  One of the officers entered the bathroom via the window to assist in calming Ms Cameron while they waited for the MFS to gain entry.

    Metropolitan Fire Service attendance[14]

    [14] Summary taken from Prosecution Case Statement.

25. The MFS arrived at 7.37 am.  It was apparent that points of entry to the unit were either locked and/or blocked from the inside.  The MFS were not able to gain access through the front door, even with the use of a sledgehammer.

26. A MFS member climbed into the bathroom to assist Ms Cameron with a breathing mask.  Ms Cameron did not say anything, but appeared distressed.  The MFS and police continued to attempt to open the rear door.  The rear main door and security door were secured with wire, cables, tape, and a padlock, preventing access.  The door also had numerous water cartons stacked up against it from the inside.  The MFS ultimately gained access by kicking the door off of its hinges. 

27. The MFS forced open the bathroom door from inside the unit and noticed a piece of wire attached to the skirting board in the hallway, which was attached to the inside of the bathroom door.  The fire scene investigator who attended later noted that there was a small metal screw attached to the inside bottom of the bathroom door.  A piece of wire was wrapped around the screw, going under the door and along the hallway.  The wire appeared to be used as a locking mechanism, preventing both the hallway door and the bathroom door from being opened.  The MFS were ultimately able to drag Ms Cameron in the wheelchair from the unit after they had cleared a number of objects out of their path.

28. Once they gained access, three fires were extinguished within the unit; one in the first bedroom, another in the second bedroom, and one in the loungeroom.

    Dr Dem Rahim Kibar

29. Dr Cem Rahim Kabir, a South Australian Ambulance Service MedSTAR medical retrieval consultant stated in his affidavit[15] that he was tasked to the Woodville Park unit on 16 July 2018.  On arrival, MFS and ambulance crews were already present and he noted a man who was concerned about the female in the unit who was being extracted.  The man was refusing any medical intervention.  Dr Kibar reported that the patient who was eventually extricated onto a stretcher had a history of Huntington’s chorea.  She also had intellectual impairment and was agitated.  Dr Kabir said that the woman’s upper body clothing was removed to facilitate examination.  He said that she had six layers of lower body clothing, four layers of her lower limb clothing were cut off on the scene prior to being conveyed to the Royal Adelaide Hospital.

    Fire scene investigation[16]

    [15] Exhibit P6.

    [16] Summary taken from Prosecution Case Statement.

30. Fire scene investigators attended the unit at about 9.40 am on 16 July 2018.  In the opinion of the fire scene investigator, Brevet Sergeant Andrew Bosley,[17] there were three areas of the origin of the fire, each deliberately lit.  The entire house had been locked from the inside with no signs of forced entry, other than that caused by the MFS officers.

    [17] Affidavit of Brevet Sergeant Andrew Bosley sworn 4 October 2018,provided to Dr Smith and Dr Haeney at time of seeking their reports, but not tendered as an exhibit.

31. The first seat of origin for the fire was in the loungeroom of the unit.  There was no accidental ignition source in the vicinity of the fire.  Burn patterns indicated that the fire started on top of a cabinet against the southern wall of the loungeroom.  A plastic mineral turpentine bottle without a lid and containing liquid was located amongst the household items in the loungeroom.  There was very little access into the room, with furniture and household items throughout. 

32. The second seat of origin was in a bedroom of the premises.  The bedroom door had been closed at the time of the fire.  Burn patterns indicated that the fire started in clothing inside a wardrobe in the bedroom.  No traces of accelerant were detected, but the use of accelerant could not be excluded.  There were no accidental sources in the vicinity of the fire. 

33. The third seat of origin was in the second bedroom of the unit.  The bedroom door had been closed during the fire.  A small fire had started amongst clothing, quilts, and suitcases.  There were no accidental ignition sources that could have started the fire.  There was a strong accelerant-like smell on the clothing.  A plastic mineral turpentine bottle without a lid containing liquid, a plastic methylated spirits bottle without a lid containing liquid, and a portable lighter were all found in the second bedroom.

34. Brevet Sergeant Bosley provided, as a part of his affidavit, a diagram detailing the location of the three fires in the unit.[18]

    [18] Exhibit P11.

35. Brevet Sergeant Bosley identified on the diagram the rear door of the unit as the location of the solid wire and plastic coated multi stranded wire attached to the inside door handle with grey duct tape and a padlock wrapped around a support bar attached to the interior wall of the unit as depicted in photographs 9, 10, and 11 of exhibit P1.

36. Brevet Sergeant Bosley also described the location of the length of wire attached to the interior bottom of the bathroom door with the opposite end of the wire ending at the base of the lounge room/hall door.

    Detective Brevet Matthew Schar

37. Detective Brevet Sergeant Matthew Schar deposed in his affidavit[19] that he was informed about a suspicious fire at Mr Wiszniewski’s unit and that he was requested to seize Mr Wiszniewski’s clothing at the Royal Adelaide Hospital and arrest him on suspicion of starting a fire and attempting to kill Ms Cameron and himself.  He said that at about 11.55 am on 16 July 2018 he attended on Mr Wiszniewski and informed him that they were going to place under arrest for the arson and attempted murder.  Mr Wiszniewski was asked if he would like anyone present when he was interviewed and he said, “Well I can’t say at the moment, I’ll probably have to speak to someone to see what a lawyer will do for me if I can find a lawyer”.  Mr Wiszniewski declined to answer any questions.

    [19] Exhibit P10.

38. The transcript of the interview annexed to Detective Brevet Sergeant Schar’s affidavit records that Mr Wiszniewski asked “why are you calling it arson for that, that’s assuming that a criminal act has happened” and further said, “Coming in claiming that I’ve done a criminal act are you”.

1. Mr Wiszniewski asked during the interview what was going to happen to Ms Cameron.  He said that they lived together, he had been her fulltime carer for 13 years, and there was no other accommodation he was aware of for her.

   Roderick Gordon Cameron

2. In his affidavit,[20] Ms Cameron’s father, Roderick Camerson, stated that Ms Cameron was diagnosed with Huntington’s disease in her 20s and that she also suffers schizophrenia as a result of drug use in her teenage years.  Ms Cameron’s mother suffered from Huntington’s disease and her older brother also suffers Huntington’s disease. 

   [20] Exhibit P12.

3. Mr Cameron first came to know Mr Wiszniewski when Ms Cameron was living in a house at Pennington.  Mr Wiszniewski was working as a care worker.  Mr Cameron asserted that Ms Cameron told him that Mr Wiszniewski was supplying her with marijuana and she did not want to take her medications because marijuana was better for her.  Mr Cameron detailed how he had words with Mr Wiszniewski whilst Ms Cameron was at Cramond Clinic.  He became aware that Mr Wiszniewski applied to the Guardianship Board to become Ms Cameron’s fulltime carer and that her moved in with her.  The Guardianship Board determined that Mr Wiszniewski could be her carer, but that she would remain under the Office of the Public Trustee.  Mr Cameron said that he informed the Guardianship Board that he did not approve of Mr Wiszniewski being Ms Cameron’s carer.  After Mr Wiszniewski became Ms Cameron’s carer, Mr Cameron said that he did not have any face to face contact with Ms Cameron for 10 years, until the fire occurred on 16 July 2018. 

4. Mr Cameron stated that he saw Ms Cameron in hospital on 17 July 2018, following the fire.  After he saw her, he drove to the unit and noted that it was boarded up.  He saw a pile of rubbish in the front yard and fluffy toys that he knew belonged to Ms Cameron. 

5. While he was looking through the rubbish, he opened a chest of drawers, pulled out a pillowcase, opened it and found a towel, another pillowcase, and two bits of rag wrapped around what appeared to be a ceiling fire alarm.  Mr Cameron left it with the neighbour.  He told the neighbour that he would ring the police and ask them to collect it. 

6. Mr Cameron considered that Mr Wiszniewski kept Ms Cameron isolated from him.  He said that he did have concerns as to how Mr Wiszniewski was coping caring for Ms Cameron, because he knew from experience that it would have been very tough and stressful.  Mr Cameron said that he (Mr Cameron) at times became very mentally unstable when he was a fulltime carer for his wife

   Detective Brevet Sergeant Jordan Koch

7. Detective Brevet Sergeant Jordan Koch conducted enquiries relating to Mr Auty-Jaldorn and Mr Wiszniewski and could not locate any criminal history relating to Mr Auty-Jaldorn or locate any incidents where Mr Wiszniewski has reported matters involving Mr Auty-Jaldorn.

   Assessment of Mr Wiszniewski at the RAH

8. Following rescue from the burning unit, Mr Wiszniewski was taken to the RAH for treatment of suspected smoke inhalation.

9. It is recorded in the RAH records[21] that on arrival Mr Wiszniewski was “crying, distressed”, said his name and that his partner’s name was Rachel, but after that “he refused to speak despite repeated questioning” by medical and nursing staff, and held his head in his hands.  He was under SAPOL custody and restrained with handcuffs. 

   [21] Exhibit D6.

10. Dr Georgina Manos, detailed the treatment of Mr Wiszniewski in her affidavit.[22]  She stated that he was kept overnight for observation and that when she examined him on 17 July 2018 she noted:

    … that he appeared dishevelled and was unable to make eye contact with medical officers.  His speech was pressured and he voiced significant paranoid thoughts surrounding police and government officials.  He did not appear to be suffering from any visual or auditory or olfactory hallucination.  He appeared suspicious and irritated.  His insight and judgement were poor. 

    Peter was subsequently medically cleared and referred for a mental health assessment.

    [22] Affidavit of Georgina Manos sworn 28 June 2020, provided to Dr Haeney at time of seeking his reports, but not tendered as an exhibit.

11. At 11.30 am on 17 July 2018 following a mental health assessment, Mr Wiszniewski was made subject to an inpatient treatment order level 1 pursuant to the Mental Health Act 2009 (SA). It was determined by Dr Raquel Frazer that Mr Wiszniewski had a mental illness, that he required treatment for his own protection or the protection of others, and that he had impaired decision‑making capacity relating to the treatment of his mental illness.

12. The medical progress notes record that he “declined breakfast” and refused other meals. 

13. The psychiatrist who reviewed the inpatient treatment order was Dr Ingrid Nielsen.  Dr Nielsen recorded in the inpatient progress notes that Mr Wiszniewski was a 50 year old single man, and that SAPOL required medical/psychiatric clearance for custody.  Dr Nielsen recorded that Mr Wiszniewski was awaiting a bedside hearing that afternoon on 17 July 2018.  She noted that Mr Wiszniewski had marked body odour, that SAPOL were in attendance outside the room, and that he was not shackled.  At the outset, Mr Wiszniewski declined to discuss the events around the fire, stating that he would talk to his lawyer.  Dr Nielsen noted that Mr Wiszniewski had:

    Pressured speech with a marked paranoid theme going back at least 10 yrs.  Complex egs of government plots, had been contacting multiple agencies for years before he met partner in 2005.  Worked as a disability care worker for years, got sick of $13/hr so went to uni and did engineering (? completed it).  Met partner in 2005. 

    Partner did not disclose [history] of Huntington Disease.  Shortly after they got together she became ill.  Progressive decline since then and unable to walk past [2 years].

    Dr Nielsen recorded that Mr Wiszniewski reported “having to struggle to get services including NDIS”, that he “declared all pharmaceuticals poisonous” and that they have made Ms Cameron’s Huntington’s disease worse: “She’s more disabled than other members of her family” with Huntington’s disease.  Dr Nielsen noted that he quoted “([with] ++ pressured speech) studies indicating medics are in collusion [with] other [government] bodies to poison us”.  Dr Nielsen recorded that Mr Wiszniewski “declined to answer questions about suicidality etc “no no no” to all questions”.

14. Dr Nielsen recorded that on examination Mr Wiszniewski was dishevelled with evidence of personal neglect and poor hygiene.  He was guarded with his answers and he was suspicious of the medical staff’s motives.  His speech was pressured and difficult to interrupt.  The content of his conversation consisted of “complex delusional and paranoid themes going back likely decades”.  He denied perceptual disturbances.  He was noted to have poor insight and judgement.  Dr Nielsen assessed him as presenting with “longstanding paranoid disorder”, that he denied contact with mental health services, that she was unable to do a full assessment as he declined to discuss the fire, and that he needed full forensic assessment regarding his diagnosis and treatment for his psychosis.  Dr Nielsen confirmed the inpatient treatment order and that he required a James Nash House bed.

15. In the Consumer Assessment Emergency Assessment document forming part of the medical records, it is recorded by Raquel Fraser that Mr Wiszniewski was:

    Thought disordered, tangential at times, no auditory or visual hallucinations, no ideas of reference, no insertion or broadcasting, Paranoid delusions evident+++ (pt believes that the government has been out to get him since 2005 when he was in university he also believes that the police and federal police are involved and also the CIA)

16. The following quotes in the RAH records are recorded as statements made by Mr Wiszniewski:

    °“three attempts have been made on my life by the government, one was when I was in hospital receiving an x-ray and they told me to lay on the bed and they targeted me with a device that left me with a bald patch on my neck and pain for 6 months, and the other two attacks I don’t wish to speak about”

    °“I was out having coffee with a friend and there was a man sitting beside me who was in the CIA he had a walkie talkie and was recording everything that I was [saying] with microphones”

    °“there was a man who turned up in a van to my house and was drilling under the house making a hole into the apartment and since he drilled I could smell alcohol and funny smells including dinner from the house next door”

    °“my neighbour called the police because [Rachel] was screaming, but the federal police turned up and was talking to the neighbour who organised someone to drill holes into the apartment and I believe that my neighbour was in on it and giving information about me to the government”

    °“a psychiatrist at the QEH was trying to kill my partner because of me, they did this by increasing her lithium by two thirds which made her very sick, they also abused her [by] putting her in seclusion for too long and by drugging her up”

    °“the police and government are out to get me and people are giving them information about me”

    ° “when I was studying engineering at university the government was notified about me because of my high marks and because of my research into different agents, they thought I was a threat to them”

    °“I keep receiving letters form the golden leaf society who want me to become a member of their elite powerful society because of my academic achievements at university, they heard of my high marks and wanted me to become a member”

17. It is recorded that Mr Wiszniewski denied homicidal and suicidal ideation and when asked stated, “I would never hurt [Rachel]”.  He denied neuro‑vegetative symptoms and stated, “I feel burnt out not depressed” and “I need more help from the government to help with [Rachel’s] needs as she is deteriorating and I am not getting the assistance I need”. 

18. Mr Wiszniewski was assessed by Dr Fraser as being at high risk for suicide and self-harm, at low risk for violence and aggression to staff, at high risk of absconding, highly vulnerable due to the level of active psychosis and lack of insight.

    Dr Jill Maxwell’s letters and statements

19. In her letter dated 8 August 2018[23] addressed to “To Whom it may concern”, Dr Maxwell explained that she first met Mr Wiszniewski and Ms Cameron in 2010 when she became Ms Cameron’s general practitioner.  Dr Maxwell stated that Ms Cameron:

    … suffers from Huntington’s Disease and her disability has been progressing in the eight years that I have known her, such that for the past year or so she has been unable to do anything for herself and has little or no meaningful communication.

    During the time that I have known them Peter has been Rachel’s only carer. It has been a privilege to witness his love for her and his dedicated caring.  He has assisted her with every activity of daily living, including toileting, feeding, transfers in and out of the wheelchair and looking after her every need.  He has taken care of all her medical needs, including giving medications and administering enemas when needed.

    In my opinion, Peter’s care of Rachel has been exemplary. It would not be possible for someone with such a profound disability to have better care than she has had with Peter.

    [23] Exhibit P2.

20. In her first affidavit affirmed 27 December 2018,[24] Dr Maxwell further explained that Ms Cameron also suffers psychosis and hypothyroidism and that the psychosis is considered to be associated with Huntington’s disease.  Dr Maxwell said that she would see Ms Cameron on average six times a year and that she would always be accompanied by Mr Wiszniewski.  She stated that at times she would see Mr Wiszniewski on his own to discuss Ms Cameron’s health as this was sometimes easier as Ms Cameron was generally restless in the consulting room.  Dr Maxwell stated that Ms Cameron was in her opinion “absolutely incapable of any type of statement about this matter even if maximum assistance was provided because her cognitive abilities are too limited”.

    [24] Exhibit P4.

21. Dr Maxwell concluded her affidavit referring to a “slightly disjointed” text message she received from Mr Wiszniewski on Saturday 14 July 2018 at 9.00 pm, which she did not see until the next day.  The message read as follows:

    HiDrMaxwell,sorry2txtU,we’reInAbadSituatnCosNDISisBeingDeniedRachel.AllPaperwkWasInDIShandsMnthsAgo.sheCanBarelyStanNowAndToiletnAndWashnBigAsk4me.itHasntStopdOurNiteVisits2city2giveHomelessPplWarmClothesAnd$$.forRachelHomeLifeSeemsNot2safeNearTerm.sorry4thtext.Talk2Usoon.pw

22. Dr Maxwell did not reply to the text, intending to address it when she returned to work on Monday 16 July 2018.  When she arrived at work on the Monday morning, she was informed about the fire by a staff member.

23. During the hearing of the investigation, I requested that Dr Maxwell be asked whether she had received text messages from Mr Wiszniewski prior to the text referred to above.  In her second affidavit affirmed on 25 February 2020,[25] Dr Maxwell stated at [7]:

    The nature of most of my communication with Peter was always about Rachel’s medical condition and that was it.  The only other relevant information I have about Peter and it is mentioned in my case notes and that is that on occasion he would express concern that people were watching and find evidence that he couldn’t look after Rachel for example his emails being hacked and he was being monitored.  I have documented this twice in my notes but it wasn’t enough for me to be concerned about his mental health.

    [25] Exhibit P13.

24. Dr Maxwell stated at [4] that in her earlier affidavit she said that “Peter was extremely caring towards Rachel to the exclusion of himself”.  By that, Dr Maxwell explained that “it appeared to [her] that he was spending all his time and energy on looking after Rachel and beside Rachel he really didn’t have a life of his own”.

25. In a letter dated 2 April 2020 to Mr Wiszniewski’s solicitor,[26] Dr Maxwell further explained that she first met Mr Wiszniewski in October 2010.  She described that he was the partner and carer for Ms Cameron, who had Huntington’s disease and who was becoming increasingly disabled, physically, mentally, and intellectually.  At that time, Ms Cameron was brought to Dr Maxwell as a new patient to her practice.  Dr Maxwell reported that over the next eight years Ms Cameron was brought to see her about five to 10 times a year.  She was always brought in by Mr Wiszniewski and Dr Maxwell said that she was impressed by his obvious, very intense care of her.  By “intense”, Dr Maxwell explained that she meant “caring for her and looking after her every need was clearly the entire focus of his life”.

    [26] Exhibited to an affidavit of Michael Hegarty affirmed 30 April 2020 (Exhibit D4) as “MH2”.

26. Dr Maxwell saw Mr Wiszniewski as a patient on very few occasions, for simple issues like a dental infection, always during a consultation that was booked for Ms Cameron.

27. Dr Maxwell described that in the early years of being consulted by Ms Cameron, Ms Cameron was independently mobile and could be quite aggressive, at times pushing or hitting people including members of the public or her medical staff.  Ms Cameron always responded well to Mr Wiszniewski, who was firm but very calming.  Dr Maxwell stated that she never saw Mr Wiszniewski show any anger towards Ms Cameron.  As Ms Cameron’s disability progressed and she became fully wheelchair-bound and unable to talk, Mr Wiszniewski remained calm with her but displayed increasing anxiety about her health and her comfort.  Dr Maxwell reported that Mr Wiszniewski was very distressed when Disability SA was unable to provide a suitable wheelchair for Ms Cameron and he spent a lot of time and energy trying to make the wheelchair better suited to her needs.  Dr Maxwell stated that Mr Wiszniewski was very attentive to Ms Cameron’s basic needs, her food intake, her bowels and bladder.  Over the years, Dr Maxwell said that he displayed increasing anxiety about her discomforts and an almost obsessive need to be seen as providing impeccable care to her. 

28. Dr Maxwell also reported that Mr Wiszniewski frequently expressed concern that people were watching him and judging his ability to care for Ms Cameron.  He told Dr Maxwell at some length about periods in the past when he was sure that his emails had been hacked and that he was being monitored.  Dr Maxwell stated that, on 11 June 2015, Mr Wiszniewski came in on his own to discuss Ms Cameron’s health issues.  Dr Maxwell said that on this occasion her notes record that Mr Wiszniewski was “Very concerned that Rachel’s father is trying to prove that he (ie Peter) is not competent to look after Rachel”.  On 27 April 2016, Dr Maxwell recorded in her notes “Discussion about issues in the past where he thinks he was being monitored and emails being hacked”.  Dr Maxwell stated that she remembered a number of other occasions when Mr Wiszniewski talked along the same lines.  Dr Maxwell said that while this apparent paranoia was slightly concerning, as Mr Wiszniewski was so attentive to Ms Cameron and clearly she was the entire focus of his life, Dr Maxwell did not foresee any risk of him causing harm to either of them or anyone else. 

29. Dr Maxwell also reported that, from time to time, Ms Cameron saw the psychiatrist, Dr Anthony Lavender.  In a letter to Dr Maxwell dated 14 March 2018, Dr Lavender referred to Mr Wiszniewski’s longstanding and very attentive care of Ms Cameron.  Dr Lavender also stated, “He has some paranoid ideation regarding the neighbour spying on them”.

30. Dr Maxwell detailed that she had given her mobile phone number to Mr Wiszniewski so that he could contact her if he had any concerns about Ms Cameron’s health that could not wait until the next available appointment.  Mr Wiszniewski sent her a text message in 2016 enquiring about test results, and twice in 2017 to discuss Ms Cameron’s appointments at the Queen Elizabeth Hospital and wanting Dr Maxwell to intervene in her management.  Dr Maxwell said that each of the messages was clearly written and logical, with appropriate grammar, spelling, and spacing, Dr Maxwell said that she was concerned about the text she received on Saturday 14 July 2018 at 9.00 pm but did not read until the following day referred to above.  She said that, to her great regret, she decided to wait until the Monday to contact Mr Wiszniewski in response.

31. Dr Maxwell concluded her letter to Mr Wiszniewski’s solicitor saying:

    In retrospect, it is clear to me that Peter’s mental health was gradually deteriorating as Rachel’s disabilities increased.  In my opinion, he was displaying early signs of psychotic illness in 2015, but he retained his ability and willingness to devote his life to caring for Rachel.

32. I asked Mr Wiszniewski’s solicitor to ascertain whether there were any health records relating to Mr Wiszniewski prior to 16 July 2018.  No records were located.  Upon Dr Maxwell’s reference to the psychiatrist Dr Lavender, further information regarding Mr Wiszniewski was sought from Dr Lavender.

    Dr Lavender’s letter

33. Dr Lavender reported in his letter dated 8 April 2020 to Mr Wiszniewski’s solicitor[27] that he was “aware that Mr Wiszniewski … was assessed by the [Western Community Mental Health Team] (West Team) on at least one occasion”.  Dr Lavender enclosed copies of the documents available to him regarding Mr Wiszniewski and Ms Cameron.

    [27] Exhibit D7.

34. One of those documents is Dr Lavender’s letter dated 20 February 2020 addressed to Mr Wiszniewski’s solicitor.  Dr Lavender reported that he was previously the treating psychiatrist for Ms Cameron who attended the Western Community Mental Health Service (Port Team) and he had been involved in her treatment and management from 2013 to March 2018, reviewing her approximately every three months.

1. Ms Cameron was brought to the appointments by Mr Wiszniewski, whom Dr Lavender understood had been her carer since 2006.  Dr Lavender described that Ms Cameron had severe Huntington’s disease which affected every area of her life with severe intellectual and physical disabilities.  She attended appointments in a wheelchair but could not tolerate being stationary, so the review would be conducted as they walked around the block over a 15-minute period.

2. Ms Cameron was not able to verbalise sentences but did make noises from which Mr Wiszniewski understood her wishes.  Dr Lavender said that he had to “be mindful of her reach as she could lash out with her arm and grab people.  She was often clutching a handful of flowers or a soft toy in her hand”.  Dr Lavender described that Mr Wiszniewski was very attentive to her needs and that she did not appear to be in any distress provided they kept walking.  However, if they stood still for longer than two minutes, Ms Cameron would become restless and make vocalisations until they moved again.

3. Mr Wiszniewski would provide an update of Ms Cameron’s condition, functioning, and management problems.  These issues centred around maintaining her hygiene, managing her food intake due to choking risk, constipation, and attending to her needs generally.  Dr Lavender said that each time it was discussed that if her needs were beyond Mr Wiszniewski, then Ms Cameron may need institutional care.  Mr Wiszniewski said that he wanted to avoid that as long as possible.

4. Dr Lavender reported that, on 22 March 2017, Mr Wiszniewski indicated that he was concerned that “the neighbour in unit 3 had repeatedly made calls to the police about him”.  Dr Lavender stated that Mr Wiszniewski thought this man worked for the government and was deliberately harassing him and Ms Cameron.  Dr Lavender said that he attempted to reassure Mr Wiszniewski that this man did not work for the government.

5. Dr Lavender was of the opinion that Mr Wiszniewski had some low level persecutory ideation regarding his neighbour and his possible surveillance.  He discussed this issue with the West Team nurse who had previously been involved in assessing Mr Wiszniewski following a call to police. 

6. Dr Lavender stated that at the next review on 28 June 2017 his notes indicate that Ms Cameron was calm and smiling in her wheelchair as they walked around the block.  Mr Wiszniewski’s main concern during the review was “feeling harassed by the man in flat 3 who had called SAPOL on him a few times”.  When police attended they were happy that Mr Wiszniewski was treating Ms Cameron well.  Mr Wiszniewski stated that he had seen the man watching him when they were at the Arndale Shopping Centre, and that he felt he was being stalked by him.  Mr Wiszniewski told Dr Lavender that Ms Margaret Cavan from the Office of the Public Advocate had attended him and Ms Cameron after she had received complaints “from the public” about Mr Wiszniewski’s care of Ms Cameron.

7. Dr Lavender stated that during a consultation on 14 March 2018 Mr Wiszniewski discussed the possibility of alternate accommodation as suggested by the Office of the Public Advocate.  However, he was concerned that Ms Cameron’s mental and cognitive state could deteriorate with a move to a new environment.  Dr Lavender’s notes record:

   … he has had some altercations with a neighbour in unit 3, he has some paranoid ideation regarding the neighbour spying on them, on the other hand the neighbour may well have his own issues and deliberately creates problems such as calling the police on Peter and has stated that he was involved in surveillance for a local MP.

8. 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

9. 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

10. 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.

11. 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.

12. 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.

13. 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. 

14. 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. 

15. Dr Smith detailed at [2.9][32] of her report Mr Wiszniewski’s hunger strike.  She reported at [2.10] that the antipsychotic Risperidone reduced the speed of his thoughts and treated the thought disorder, although “there was little change in his paranoid and persecutory delusional beliefs and he continued to experience referential delusional beliefs (psychotic phenomenon of an individual experiencing innocuous events and believing they have strong personal significance)”.  As a result, Mr Wiszniewski’s medication was changed to the antipsychotic Olanzapine 20 mg daily.  Dr Smith said that there has been no change in the quality or intensity of Mr Wiszniewski’s delusional beliefs with that drug, however, several months after starting that medication Mr Wiszniewski admitted to setting the fires, something he had always blamed on Mr Auty-Jaldorn.

    [32] All paragraph references to Dr Smith’s report are to the report dated 13 May 2019, Exhibit D1.

16. Dr Smith reported that Mr Wiszniewski said that he recommenced smoking cannabis in the two years prior to the fire and that he took measures to hide his smoking, such as covering smoke detectors.  He admitted to smoking four or five cones the night before the fires.

17. Dr Smith referred at [7.2] of her report to the treating team’s concern that Mr Wiszniewski “continues to display paranoid and persecutory delusional beliefs and he continues to view people’s actions in a self-referential, paranoid manner”.  She stated that he has “no insight into his illness”.  Due to the treatment resistant nature of his illness, the treating team recommended a trial of Clozapine (an antipsychotic reserved for treatment resistant psychotic illness) which Mr Wiszniewski declined. 

18. Dr Smith referred at [8.3] to Mr Wiszniewski’s remarks at the start of her interview with him on 21 March 2019 that he “wanted the person next door to get in trouble”.  Mr Wiszniewski said that he had been assaulted by his neighbour approximately three weeks prior to the fire and was in fear for his and Ms Cameron’s safety.  He said he had made a report about the incident.  Mr Wiszniewski said that he believed that the neighbour had contacted the police over eight times in a two-month period, alleging he had heard screaming from Ms Cameron.  He said that the neighbour had started to stalk him and described three stalking events in the past 12 months.  He also said that he held the belief that the neighbour had attempted four toxic gas attacks on their home in the 12 months prior to the fire.  He stated that there were two LPG gas attacks whereby he accused the neighbour of putting offensive odours into the atmosphere and his whole house was filled with smoke, following which the house smelled for three days.  He noted that prior to the fire, the neighbour was drilling down into the wall on an angle in the kitchen wall.

19. Mr Wiszniewski also reported hearing radio interference and came to the conclusion that it was some form of audio surveillance occurring.  He believed that his neighbours, specifically Mr Auty-Jaldorn were working with authorities to record possible instances of abuse to report back to Ms Cameron’s family, guardian, or psychiatrist. 

20. Mr Wiszniewski told Dr Smith that he believed that Mr Auty-Jaldorn had entered his unit and sexually assaulted Ms Cameron.  He reportedly came to this conclusion as Ms Cameron would no longer allow him to lay her on her stomach and apply the cream to the pressure area sores on her buttocks.  As a result, Mr Wiszniewski said that he took measures to prevent entry into the house.  He installed a bicycle lock around the backdoor handle, which he then attached to the disabled handrail.  In the weeks prior to the fire, he admitted to “beefing up” security which included placing wire and a padlock around the handle of the screen door and handrail while they slept to prevent Mr Auty‑Jaldorn from entering the property.

21. Mr Wiszniewski had a suspicion that Mr Auty-Jaldorn was coming in through the windows and so, in the days prior to the fire, he constructed a system which allowed him to keep all doors shut from within the house.  This involved a screw and wire system attached between internal doors.  Mr Wiszniewski stated that on the day of the fire, when Mr Auty-Jaldorn kicked out the bathroom window, he saw the effortless way in which Mr Auty-Jaldorn jumped up onto the bin and over the fence.  Dr Smith reported that Mr Wiszniewski interpreted this as proof that he had been coming over the fence on a regular basis to listen at their window.  Mr Wiszniewski added that he often wondered why his bin had been at an unusual angle, and he felt that this was evidence that Mr Auty-Jaldorn had been jumping the fence on a regular basis. 

22. In the week prior to the fire, Mr Wiszniewski had become increasingly stressed about Mr Auty-Jaldorn.  He told Dr Smith that he thought Mr Auty‑Jaldorn was coming into the house and that he became suspicious of him even more after he saw his mental state (during previous alleged altercations) and was worried what else he would do.  In addition, it was becoming increasingly difficult to provide care for Ms Cameron as her condition deteriorated to the point she was unable to mobilise.  He told Dr Smith that he could not look after her, she was heading for doom as she would not get the kind of care she was getting at home with him.  He said that he did not have any way of helping her any longer.  He said that he felt anguish and frustration at a big level.  He had decided that he would have to take Ms Cameron to hospital and had told Ms Cameron’s general practitioner of his intention to do so.

23. Mr Wiszniewski informed Dr Smith that he recalled that the night before the fire he stayed up all night watching the soccer World Cup.  The following morning, he packed Ms Cameron’s bags, got her dressed, and made her a hot meal, intending to take her to the Queen Elizabeth Hospital.  Mr Wiszniewski told Dr Smith, “I had no plan to set any fire”.  At some point during that morning, he started to pour the mineral turpentine around the house on clothing and furniture.  Mr Wiszniewski indicated that he had this stored in the house for the past 12 months as he was worried about leaving flammable liquids in the shed due to concerns about the neighbour.  He was unable to explain what it was that changed his mind.  One minute he had intended to take Ms Cameron to hospital, and the next minute he was pouring flammable liquid around the house.  When Dr Smith pressed him, trying to understand what had changed his mind, he stated, “I can’t say, perhaps the mushrooms made me not able to think”.[33]  He stated, “I definitely wanted to take her to hospital”, but acknowledged that he poured the flammable liquid and lit the fires in the loungeroom and bedrooms, making it impossible for her to get out of the house.  He stated, “I didn’t think at the time what the consequences would be, it came out of the blue”.  He went into the bathroom with Ms Cameron and shut the door, turned the shower on, and faced the showerhead at the door to prevent the fire from getting into the bathroom.  He said, “I didn’t want her to be harmed, I had no desire for that to happen, I still love her”.  He said, “I couldn’t get her out of the house and I stayed in the bathroom”.  He stated that he felt it was “the end of the line for him” and then stated, “I had no intent to hurt either one of us; I should have got her out”.  He then told Dr Smith that “part of it was that if the house was damaged then he [Mr Auty-Jaldorn] would not be able to stay”.  He stated that he thought Mr Auty-Jaldorn was also doing things to girls in the area and that he had reported Mr Auty-Jaldorn to neighbourhood watch and Crime Stoppers.  When asked if he intended to harm Mr Auty-Jaldorn with the fire, he stated, “I never thought I would harm anyone with the fire” and he reiterated, “I wasn’t thinking much at all when I set the fire, same as when I put the wires on the floor”.

    [33] Mr Wiszniewski reported that he had consumed psychoactive mushrooms 48 hours before the conduct.  There is no suggestion that he was affected by the mushrooms at the time of the conduct, Cf affidavit of Professor Jason White affirmed 2 August 2019.

24. Dr Smith stated at [12.8] that on the balance of probabilities it is her opinion that “Mr Wiszniewski’s view of the world and his behaviour was so profoundly affected by his thought disorder and paranoid psychotic symptoms at the time of the offence, that he was totally overwhelmed in the moment.  This, compounded by the stress he was under with Ms Cameron’s care needs resulted in his inability to reason, due his significant thought disorder and psychotic beliefs, about whether his actions at the time of the offence were morally wrong”.  Dr Smith concluded that she supported a mental impairment defence. 

25. Dr Smith’s further opinion was sought regarding several matters.  These matters included her opinion following viewing of the video footage of Mr Wiszniewski’s police interview, her comment regarding the affidavits of a paramedic and the pharmacologist Professor Jason White.  Mr Wiszniewski’s solicitor was also asked by the prosecution to refer Dr Smith to the decision in R v Ey (No 2).[34]Dr Smith provided her further comment in her report dated 7 October 2019.  Dr Smith said that having viewed the footage of the police interview it did not alter her opinion.  Dr Smith said the affidavit of Professor White expressed the view that Mr Wiszniewski was not intoxicated by psychoactive mushrooms at the time of the conduct.  Having considered the judgment in R v Ey (No 2), Dr Smith elaborated on her opinion that Mr Wiszniewski did not know the wrongfulness of his actions at the time of the conduct and discussed moral wrongfulness.  Dr Smith said that in her view, Mr Wiszniewski’s comments to the paramedic that he was watching the World Cup when he smelt smoke and his comments during the police interview suggest that he knew arson was an illegal act.  Dr Smith said she was trying to convey in her first report that Mr Wiszniewski’s comments suggest he displayed knowledge that the conduct was wrong in a legal sense.  However, in her opinion, owing to his mental impairment he did not know that the conduct was wrong in a moral sense.  That is, he could not reason about whether the conduct as perceived by reasonable people was wrong.  Dr Smith specifically referred to Sulan J’s comment in R v Ey (No 2) where he said “Central to the question, however, is whether her mind was so disordered as to hinder her ability to contemplate the moral wrongfulness of depriving the infant from care, judged by the standards of the reasonable person … I am not satisfied that the defendant due to her mental impairment was unable to reason about the moral quality of her omissions”.[35]

    [34] [2012] SASC 116 at [33]-[38].

    [35] [2012] SASC 116 at [47]-[48].

26. Dr Smith concluded her second report stating that, having taken into account the additional information she was asked to consider, it remained her opinion that on the balance of probabilities that Mr Wiszniewski’s “behaviour was so profoundly affected by his thought disorder and paranoid psychotic symptoms at the time” of the conduct that as a result “he could not reason about whether the conduct as perceived by reasonable people was wrong”.

27. In cross-examination, the following exchange took place:

    QSo in terms of every day standards of right and wrong, do you agree that that concern that he was displaying, telling the doctors ‘Leave me alone, I’m worried about her’, was his moral compass basically working at that moment.

    AI suppose this comes down to how I understand the situation.  Like I said, from what he’s said to various people in the hours and days after the alleged offence he knew that the act of arson was wrong in terms of it was against the law.  The underlying reasons why he allegedly lit the fire are what I can’t necessarily definitively comment on.

    …

    Q.But that in the relevant sense of right and wrong contemplated by the statute, that he didn’t know it was wrong.

    A.Yes. Morally wrong. In a moral sense.

28. Dr Smith agreed that her opinion is that there is a clear distinction between a person appreciating that “their conduct amounts to a crime against the law on one hand, while not being able to know or understand that what they are doing is wrong according to the standards of everyday people”. Dr Smith agreed that Mr Wiszniewski “knew and appreciated what he was physically doing in setting fire to the house and he knew it could cause harm to Ms Cameron, if not kill her, had there been no intervention”.  She agreed that “he appeared to have some appreciation or knowledge that at least one of his acts amounted to the crime of arson”. 

29. Dr Smith agreed that prior to March 2019, Mr Wiszniewski always denied setting the fire and in March 2019 he confessed to setting the fire.  Dr Smith agreed that one of primary matters driving Mr Wiszniewski’s thought processes and stressors in the days leading up to the alleged offending were, in fact, some concrete problems that had a rational basis, in particular with respect to the care of Ms Cameron.

1. Dr Smith was asked whether Mr Wiszniewski’s six or seven months of denial from the day of the offence, and the fact that he has never been open about what happened, caused her to doubt her opinion about mental incompetence.  Dr Smith said that it did not cause her to doubt.  She said that it was not a straightforward case, particularly because Mr Wiszniewski’s reasoning behind his actions at the time of the alleged offending is not known.  Dr Smith said that she does not have an understanding about why he was not truthful.  She agreed that it was “sort of one lingering issue or doubt that has surrounded this case” and:[36]

   … I have reflected on what may have led to that, of course.  So I thought perhaps it was that he was concerned about his legal defence, or perhaps it was that he was concerned, it had been several months after treatment was started and I know that he was quite paranoid about government agencies and, you know – for example, he didn’t want a lawyer that was provided by legal aid, he was very adamant he wanted a private lawyer, so I wonder whether, with treatment, some of the paranoia surrounding trust of government agencies might have played a role, but they’re just pure speculation.

   [36] T59.

2. When asked by the prosecutor “How is it you say it’s all a product of his knowledge of the criminal wrong but not the moral wrong, and I use ‘the moral wrong’ just as a very abrupt shorthand for the legal test, everyday reasonable person”,[37] Dr Smith responded:[38]

   I guess the motivations behind his act and his subsequent behaviour after the act might not necessarily be linked.  So, for example, if looking at the motivation driving the act at the time and then he, you know, realising what he’s done, having done it, he may then understand what he’s done is wrong in terms of the legal sense and, subsequently, be trying to either not talk or not be open about what he’s done.  So what I’m trying to say is understanding the act is, I guess, different in a sense to some of the actions after it.

   [37] T63.

   [38] T63.

   Dr Owen Haeney

3. Dr Haeney first assessed Mr Wiszniewski on 12 July 2019 and has been his treating psychiatrist since 17 July 2019 upon Mr Wiszniewski’s transfer to the Ken O’Brien Centre. 

4. Dr Haeney agreed that Mr Wiszniewski has “been honest that he would prefer a mental impairment defence to the alternative, which is understandably not an uncommon situation for how patients define themselves”.[39]   Dr Haeney is of the view that Mr Wiszniewski has not ever lied to him or tried to exaggerate his symptoms in order to achieve a mental impairment defence.  If anything, Dr Haeney considered Mr Wiszniewski has done the opposite.  He explained that, for example, there are areas where it would have been helpful if Mr Wiszniewski “was able to say more and might make this matter more clear‑cut, but he’s not been able to provide that information”.[40] 

   [39] T83.

   [40] T84.

5. Dr Haeney concluded that, given the totality of the information, he was more persuaded that at the time of setting fire to his unit Mr Wiszniewski was not able to reason as a reasonable person would that what he was doing was wrong.  Dr Haeney said that if Mr Wiszniewski was asked at the time he was spreading mineral turpentine around the unit whether what he was doing was legal, he would have known it was not legal to burn the unit down whilst he and Ms Cameron were in it.  However, Dr Haeney is of the opinion that he would not have been able to reason as a reasonable person would because of the influence of not just the stress he was under, but also the delusions he had about the persecution that he and, to an extent, Ms Cameron were subject to.

6. It is Dr Haeney’s opinion that Mr Wiszniewski is suffering a persistent delusional disorder.  Dr Haeney explained that a delusion is “a pathological form of thought content whereby the person has a false fixed idea entirely out of keeping with their social, educational, cultural, religious background that is fixed and unshakeable, so it is held with absolute conviction”.[41]  A persistent delusional disorder “is a mental illness whereby those are the primary symptoms and they are present for an extended and persistent period of time, usually at least one month but often significantly longer and it occurs without some of the other characteristic symptoms of other psychiatric illnesses such as schizophrenia”.[42]  A persistent delusional disorder is a psychotic disorder with psychotic symptoms which are a “break in an individual’s understanding of reality”, for example, “somebody who hears voices that are not there, that other people can’t hear, sees things, smells things that other people cannot see or smell, or believes things that are manifestly untrue to other people”.[43] 

   [41] T81.

   [42] T81.

   [43] T81.

7. Dr Haeney said that it appeared to him “that there is a pattern of Mr Wiszniewski interpreting things in a very unusual manner, self-referential and often with a persecutory flavour, and he describes that going back, … to virtually school and university days, of incidents happening and him interpreting that as being something to do with him, some persecutory element to it, but perhaps not always held with that absolute conviction or certainty”.[44]  Dr Haeney is of the opinion that there is evidence of clear delusions experienced by Mr Wiszniewski spanning at least several years.  In answer to a question about whether a stressful situation such as caring for Ms Cameron could give rise to a separate mental health issue, Dr Haeney said that stress is pervasive and “can be very difficult to manage and can trigger a mental illness”.[45]  It would not be considered a mental illness itself, but “it may be a trigger for psychotic disorders, for depression, for bipolar disorder, for anxiety or any other number of issues”[46] and it could potentially trigger a persistent delusional disorder. 

   [44] T82.

   [45] T83.

   [46] T83.

8. Dr Haeney said that it is more probable than not that Mr Wiszniewski was substantially motivated by his underlying delusional beliefs at the time of the conduct and on the balance of probabilities that gives rise to a mental incompetence defence. 

9. He was asked in examination-in-chief about his comment in his report[47] regarding a second opinion being requested from another consultant, who agreed that Mr Wiszniewski was likely suffering from a delusional disorder with potential underlying paranoid personality traits.  Dr Haeney said he believes that it was Dr Craig Raeside who gave that opinion.  He also referred to Dr Furst’s diagnosis of a likely psychotic illness, probably persistent delusional disorder, on Mr Wiszniewski’s admission to James Nash House.  When asked whether there was any utility in breaking down a distinction between a delusional disorder and schizophrenia, Dr Haeney said “there’s not really much doubt that one or the other of those were present at the material time”.[48]  He said that, essentially, the conditions have similar symptoms and the treatment is the same.  Dr Haeney said that there have been some improvements since Mr Wiszniewski has been admitted to James Nash House.  He said that, whilst he did not treat Mr Wiszniewski for the first year at James Nash House, from the reports of those who have known him longer, such as, Dr Smith, it is evident that there have been improvements in the expression of his thought content and that he has become less preoccupied with some of the persecution that he believes occurred.  However, many of his core beliefs still persist.  Dr Haeney said:[49]

   … there are one or two aspects that he is able to accept that he may not have been correct in the belief that he held at the time.  For example, that his neighbour was creeping in through the windows and sexually assaulting his partner while Mr Wiszniewski slept.  But largely he still believes that he has been subject to a great deal of persecution by [a] myriad of different personnel and agencies over many years.

   [47] Exhibit D3 at [4.5].

   [48] T85.

   [49] T85.

10. Dr Haeney said that he has spoken to Mr Wiszniewski about a potential change in treatment because of his concern regarding residual symptoms.  He said that it would be his recommendation that Mr Wiszniewski be treated with clozapine, although Mr Wiszniewski is somewhat reluctant.  Dr Haeney said clozapine is by far the most effective treatment for schizophrenia and similar disorders but it does have some side effects, which is why it is not used as a first line treatment. 

11. In cross-examination, Dr Haeney agreed that his conclusion about mental impairment has not been a straightforward one.  He agreed that the case was difficult and that he has had to speculate in the absence of certain information to reach his opinion.

12. It was put to Dr Haeney that Mr Wiszniewski had no prior documented mental health history.  Dr Haeney said that Mr Wiszniewski may have sought treatment for depression from his general practitioner, but he is not aware of any prior documented history of delusional disorders.  In response to a question about there being minimal collateral information about Mr Wiszniewski’s mental health, Dr Haeney said that he was not sure he would use the word “minimal”.[50]  He said there is obviously information directly from Mr Wiszniewski and inferences from some of the witness statements that reflect Mr Wiszniewski’s mental state going back several years, as well as Mr Wiszniewski’s own reports and reports from his family members. 

    [50] T87.

13. The second matter put to Dr Haeney by the prosecution was that there was some disparity in the primary diagnosis between himself and Dr Smith.  He said that Dr Smith preferred her diagnosis of schizophrenia with delusion disorder and that he considered Mr Wiszniewski’s diagnosis fits more with a delusional disorder, but would certainly acknowledge that schizophrenia is a possibility.  Dr Haeney said that he did not have the advantage of seeing Mr Wiszniewski when he was first admitted and he knows that Dr Smith placed significant weight on the disorganisation in his expression of thought when he first came into James Nash House.

14. The third matter put to Dr Haeney was that there had been a long period of denial, evasiveness, and finger‑pointing by Mr Wiszniewski.  He agreed that there was a period of roughly six months from the date of the conduct through to March 2019 where there was a denial and evasiveness which raised a question about Mr Wiszniewski’s honesty and credibility in the content of his self‑reporting. 

15. The fourth matter put to him was that Mr Wiszniewski had apparently never spoken openly about his thought processes at the time of setting fire to the unit.  Dr Haeney acknowledged that was the most difficult area.  He said Mr Wiszniewski has not given any account of his conduct, he has moved on from blaming it on other people and has said “I did it but I can’t explain why”.  Dr Haeney said that there is “a lacuna, a hole, where an explanation would be nice”,[51] however, Mr Wiszniewski maintains that he does not know why he did it.  Dr Haeney has discussed potential motives and put potential hypotheses to him to which Mr Wiszniewski says “No, that’s not why I did it.  I don’t know why I did it”.[52]

    [51] T89.

    [52] T89.

16. Dr Haeney said “the difficulty is he’s excluded almost every reason I could hypothesise”.[53]

    [53] T89.

17. Dr Haeney was taken to para [6.9] of his report,[54] where he said, “There are some difficulties in making this assessment given that Mr Wiszniewski’s account or recollection of the material time is somewhat lacking in detail” and that some speculation is required. Dr Haeney said that he did not “believe there is too much speculation about the presence of a mental impairment at the time” and that “there is clear and persistent evidence that Mr Wiszniewski was suffering with a psychotic illness … a mental illness which would be considered a mental impairment under the Criminal Law Consolidation Act”.[55]  He clarified that his comment about speculation “comes as to whether or not that led to Mr Wiszniewski being able to reason, as judged by reasonable people, that his conduct was wrong, because we don’t have a clear explanation of what drove his conduct”.[56]  Dr Haeney said “having considered all possibilities, possible motives, nonpsychotic motives, the presence of the undoubted psychosis at the time, I believe it’s more likely than not that his actions were primarily driven by his psychotic illness”.[57]  When asked why, Dr Haeney said:[58]

    Because Mr Wiszniewski believed that he was being subject to persecution by neighbours, by police, by government, by mental health services, by all the people around him and that in that situation, I believe when he’s faced with being unable to manage his partner’s significant disabilities any further, believing that people were actually entering into his flat, into his unit, to sexually assault her, to undermine his care of her, then I think that is a more likely reason for him starting the fires than anything else that I have heard.  But, I acknowledge, that is speculation because Mr Wiszniewski does not say that.

    [54] Exhibit D3.

    [55] T91.

    [56] T91.

    [57] T91-92.

    [58] T92.

18. It was put to Dr Haeney that at one stage Mr Wiszniewski explicitly told him that it had nothing to do with mental illness and that it was actually concerned with his worries about NDIS funding.  Dr Haeney said that “Mr Wiszniewski has a lack of insight which is a core feature of psychotic illnesses, that is a failure to recognise that the beliefs he has are not true.  So, him not identifying psychosis would be an expected part of the illness, rather than lending support to the idea that it wasn’t driven by psychosis”.[59]  Dr Haeney referred to Mr Wiszniewski talking about frustration at the lack of care or lack of funding from NDIS, but that Mr Wiszniewski has never said that he set the fire because of lack of care and support.

    [59] T92.

19. Dr Haeney agreed that if it is correct that Mr Wiszniewski has been suffering from delusional thought processes for some years, he did not commit any serious crimes during that period and that he admirably looked after Ms Cameron during those years.  Dr Haeney also agreed that there had to be an event, a build-up of stress or pressure, that provided some kind of trigger for him to take the drastic step of setting fire to the unit.  It was put to him that Ms Cameron’s care issues were the dominant trigger.  Dr Haeney’s response was that he considered it would be difficult to argue with that and that the fact that Mr Wiszniewski was no longer able to care for her and had seen her deteriorating to the point that she was non-verbal and unable to stand, seemingly protesting at some of the care he was trying to provide, was undoubtedly a great source of stress for him.  Dr Haeney further said that he is of the view that there was a deterioration in Mr Wiszniewski’s mental state as that stress mounted:[60]

    There [are] new delusions that he’s no longer even safe in his own unit despite all the precautions he has.  People are getting in and doing things despite all the measures he can take.  So my understanding, my formulation, interpretation of what is happening is that his mental state was worsening in conjunction with that stress.

    Dr Haeney agreed that the “beefing up” of security around the house would be an example of the efforts Mr Wiszniewski went to due to his delusional thoughts in terms of trying to keep intruders out of the unit.  He agreed that there were features of the house and its security which reflect aspects of Mr Wiszniewski’s paranoid and delusional thinking.  It was put to Dr Haeney that it is not as simple as saying “delusional thinking, put all of that in a box, therefore he must have eventually burnt his house down”.  Dr Haeney replied:[61]

    Mental health is not that simple, no.  I’d agree that the presence of those delusions, the triggers of the additional stress he was facing, I believe more likely than not, certainly not beyond any reasonable doubt, I believe that that triggered the behaviour.  

    Dr Haeney said that if the inverse of the prosecution argument was looked at, and Mr Wiszniewski was not suffering from delusions but just managing a partner, he did not think Mr Wiszniewski would have set fire to the unit.

    [60] T93.

    [61] T94-95.

20. Dr Haeney was asked about the increasing demands in the level of care for Ms Cameron, the lack of financial support and frustrations with NDIS which were playing on Mr Wiszniewski’s mind together with a sense of personal frustration about being able to continue the care.  Dr Haeney said that they were real concerns.  However, he said that they were also influenced by the delusions he was suffering.  It was not just that Mr Wiszniewski thought he could not provide care for Ms Cameron anymore, he actually did not believe that she would be looked after, that there were “people out there trying to hasten [her] death for financial benefit”, and there were people spying on him and intruding on his life because he complained about her care.  Dr Haeney considered that whereas it would be perfectly reasonable for someone to have concerns about not being able to care for a loved one, that Mr Wiszniewski’s concerns were heavily exaggerated and pronounced by the delusions that he had about the persecution that he and Ms Cameron had suffered.  Dr Haeney said that there is always an interaction between delusions and the reality.  He agreed that there were real and concrete issues that Mr Wiszniewski was having to process and deal with and that he was having some rational thought processes in relation to those concerns.  Further, Dr Haeney commented that Mr Wiszniewski has always been very open and candid when talking about his concerns and stressors in relation to Ms Cameron.  Dr Haeney noted that Dr Smith gleaned similar details regarding concerns and stressors in the early stages of working with and interviewing Mr Wiszniewski. 

21. It was postulated by the prosecution that there was a bit of a pattern in relation to Ms Cameron and her care issues, that Mr Wiszniewski has been very candid and cogent about what was causing him concern.  Dr Haeney agreed and said that there were notable exceptions of him trying to cast blame on his neighbour and being unable to provide an explanation for the motivation for the fire, however, “generally he’s been very candid about all aspects, including the real stresses coming from Ms Cameron’s illness and also the imagined stresses from his multiple delusions and persecutory beliefs.  He’s candid about all of those aspects”.[62]

    [62] T97.

22. Dr Haeney said that since he has known Mr Wiszniewski, “he has always accepted that he did what he did and that there will have to be some sort of outcome from the court processes.  He’s not tried to avoid any particular outcome”.[63]

    [63] T97.

23. It was put to Dr Haeney that from March 2019 onwards, Mr Wiszniewski has expressed a “positive attitude towards securing a mental impairment defence”.  Dr Haeney said that as he detailed in his report, Mr Wiszniewski has “been clear that that’s what he would prefer as being more palatable to the alternative, but he’s not tried to fill in that lacuna on the motivation with one of the options that has even been put to him”.[64]  I asked Dr Haeney:[65]

    Q.So, in other words, he’s not saying to you ‘Yes, I had these delusions at the time, that fills that gap that I have been unable to satisfactorily explain for the last couple of years that I’ve been in James Nash House’.

    A.Absolutely.  He could easily have said ‘Yes, that sounds about right.  I did that because I was worried about X, Y and Z’, but he’s not sought to do that.

    [64] T98.

    [65] T98.

24. Dr Haeney was questioned about Mr Wiszniewski’s conduct after setting the fires from calling out “Help” through to March 2019.  He was referred to Mr Wiszniewski refusing medical treatment and being fixated on Ms Cameron and being concerned for her welfare.  He was asked whether he would agree that that was a normal emotional response to that particular situation.  Dr Haeney stated that it is “somewhat difficult to speculate what is a normal emotional response because that is such an abnormal situation”[66] but that it is an expected reaction, rather than a normal one.  It was pointed out that Mr Wiszniewski had the presence of mind to pass on relevant information in relation to Ms Cameron’s condition.  It was Dr Haeney’s opinion that in relation to what was suggested as “normal behaviour” was not inconsistent with a delusional disorder, or indeed with any mental illness.  He stated that one of the characteristic features, and one of the features that led him to prefer delusional disorder as a primary diagnosis, was that the behaviour of delusional disorder sufferers is often otherwise well‑preserved.  He said that:[67]

    It would be relatively unusual for somebody to have been suffering from schizophrenia for 10 years and yet able to care for themselves, to care for an individual as profoundly disabled as Ms Cameron, whereas delusion disorder, characteristically the delusions are relatively well circumscribed.  They are delusions about those aspects, but that doesn’t mean that the person cannot look after themselves, look after others or even provide expected responses in certain situations.

    Dr Haeney agreed that if an individual suffers a delusion disorder, it is not unexpected that they would be able to explain the condition or needs of their partner for whom they care.

    [66] T99.

    [67] T101.

1. When asked about Mr Wiszniewski’s comment to a paramedic that he had been watching soccer when he smelt smoke, Dr Haeney said that he considered it is likely that Mr Wiszniewski was being evasive and that he would have known that he had set the fires. However, Dr Haeney, explained that does not mean he could not have been psychotic at the time because people who have psychosis can still be devious, manipulative, lie, etc.  Dr Haeney said that he does not consider there is anything in what Mr Wiszniewski said that suggests that he could not have been psychotic and that the majority of the evidence suggests that he was.  It was suggested that Mr Wiszniewski had the presence of mind and the ability to give the answer, “I was inside watching soccer on the TV and I smelt smoke” to avoid getting into trouble.  Dr Haeney agreed that whilst Mr Wiszniewski appeared to have that presence of mind that does not mean that he was not acting in response to delusions or acting under the effect of the delusions at the time. 

2. Dr Haeney was asked about Mr Wiszniewski’s report at the Royal Adelaide Hospital staff to the effect that he was not sure how the fire started.  Dr Haeney’s response was, “I can’t be certain but again, I don’t think that’s inconsistent with delusional disorder.  In my mind there is no doubt that he was psychotic at the time”.[68] 

   [68] T103.

3. Dr Haeney was then taken to the period following the fire to March 2019 where there was a prolonged period of denial and it was suggested that that stemmed from a deliberate decision to not say anything and not make any admissions.  Dr Haeney said that he was of the view that Mr Wiszniewski hoped he might get away with it, that there may be no ability to prove that he had started the fires and therefore avoid the consequences.  It was put to Dr Haeney that that was consistent with someone who, from the very beginning, appreciated the wrongfulness of his conduct in setting fire to the unit.  Dr Haeney said that there is obviously a concern that Mr Wiszniewski understood, within a short period of time, that setting fires could have serious consequences.  However, Dr Haeney did not consider that that means that Mr Wiszniewski was not unwell at the time or that he knew that his conduct was wrong at the time he started the fires.  Dr Haeney said that he could not be certain with regard to the wrongfulness aspect, and he was not trying present himself as certain, and that he had reached his conclusion on the balance of probabilities, and that if the standard was certainty he probably would not reach the same conclusion.

4. Dr Haeney said that Mr Wiszniewski’s lack of explanation for the conduct is the core of his lack of certainty and that he considered that his post-fire conduct was not unexpected and not inconsistent with a mental illness at the relevant time.

5. Dr Haeney was asked about the text message sent by Mr Wiszniewski to Dr Maxwell on 14 July 2018.  It was put to him that it was a rational cry for help.  Dr Haeney said that he considered it was a reasonable response to the situation and that he did not think it was inconsistent with the presence of a delusional disorder.  He said that he had concerns about the way the text message was written, it “seems unusual, it doesn’t seem well thought out.  There’s some punctuation there but the vast majority of the punctuation is missing.  He’s able to capitalise acronyms appropriately but has other random capitals in other places”.[69]  Dr Haeney said that he did not consider the text message to shed a great deal of light on Mr Wiszniewski’s mental state at the time or his motivation for starting the fire.

   [69] T105-106.

6. It was put to Dr Haeney that it was possible that, amid all the paranoid and delusional thoughts, Mr Wiszniewski made a conscious and rational decision to end it all, and end Ms Cameron’s life, by setting fire to the unit.  Dr Haeney agreed that it was possible.  However, he reiterated that on the balance of probabilities he considered Mr Wiszniewski’s “thought processes were also likely to have been influenced by the persecutory delusions he had, that actually they were not safe from government, from neighbours, that she would not be safe in care. That she would not be provided with the standard of care she needed if she was in hospital because people were trying to end her life for financial gain, that government were trying to discredit him”.[70]  Dr Haeney said there “is a very real desperation in his situation that potentially could lead a rational person to feel ‘We are all better off if there is a mercy killing’”.[71]  However, in acknowledging that possibility, Dr Haeney concluded that, on balance it is “very unlikely that that could occur independently of the multiple delusions that were also present and … his actions were probably influenced by those delusions as well”.[72]

   [70] T107.

   [71] T107.

   [72] T107.

7. Dr Haeney said that one cannot “disentangle the stress from the delusions” and “that the delusions are likely to have heavily influenced his thought processes at the time, his ability to reason about whether his conduct was wrong”.[73]

   [73] T109.

8. Dr Haeney reported that during a consultation on 13 September 2019 Mr Wiszniewski appeared to be more open to the idea that he may have been unwell at the time of the conduct.  Mr Wiszniewski was struggling to come to terms with what had happened and the forensic mental health team’s opinion about his mental state.  Dr Haeney reported that Mr Wiszniewski is now willing to acknowledge that some of what he believed might not be true, but he still maintains many false beliefs including that various people have made attempts on his life.

9. During an assessment on 3 October 2019, Dr Haeney concluded that Mr Wiszniewski was being frank about trying to get away with the conduct.  It was put to Dr Haeney that that speaks of someone who has enough wherewithal to deliberately pick out and choose what he is telling medical staff.  Dr Haeney said that in his view “it suggests he does have an ability to pick and choose”[74] and that it displays a lack of insight that there was ever any doubt that it was he who started the fires given all of the forensic evidence.  Dr Haeney is of the opinion that it speaks more to Mr Wiszniewski’s “desperation, forlorn hope that he might get away with it, rather than any cunning or grand plan”.[75] 

   [74] T116.

   [75] T116.

10. Dr Haeney was asked for his comment about the assertion that Mr Wiszniewski had been either selective or non-committal in what he had previously told Dr Haeney and Dr Smith because he always had the idea that it could affect his criminal case and his defence.  Dr Haeney said that it is “not uncommon that patients are reluctant to tell their story with complete openness before the final court judgment has been handed down.  That’s certainly something we see”.[76]  It was put to Dr Haeney that, having regard to these observations, “from a psychiatric point of view, that this does raise alarm bells about whether Mr Wiszniewski did in fact have enough intellect and foresight to be guarded in what he was telling you and [Dr] Smith over the period of the assessment”.[77]  Dr Haeney’s response was that he considered that Mr Wiszniewski’s “conduct does raise a number of alarm bells” but his conclusion remains the same.  His conclusion is that it is “more likely than not that he was unwell at the time and that that was a significant driver of his conduct on that day”.[78]  Dr Haeney explained that any psychiatric judgement “is borne on weighing up different possibilities and exploring the strengths and weaknesses of those possibilities”.[79]  He said that were “there a non-psychotic motivation that provided a stronger hypothesis for the motivation for starting the fire”,[80] he might prefer that, but he was not aware of any. 

    [76] T117.

    [77] T117.

    [78] T117.

    [79] T118.

    [80] T119.

11. Dr Haeney was asked whether a conscious and deliberate decision to end life in desperate circumstances was such a non-psychotic motivator.  Dr Haeney said he did not believe it was “one that can be disentangled from the psychosis that [Mr Wiszniewski] was experiencing at the time”.[81] 

    [81] T119.

12. Dr Haeney said that psychotic autopsies conducted on completed suicides look at the mental state of the person using information available to try and elucidate their mental state.  He stated that “the vast majority of people committing suicide have evidence of mental illness around that time”.[82]  He said that he cannot say for certain that Mr Wiszniewski’s actions were not driven by a reasonable desperation, but given that there was, in his view, “an unambiguous presence of delusions at the time, it would be unlikely that he could have the motivation to end Ms Cameron’s life, and potentially his own, distinctly from those delusions”.[83]  He considered that it was not likely that Mr Wiszniewski could hold that motivation separate from the numerous delusions he had. 

    [82] T119.

    [83] T119.

13. It was put to Dr Haeney that he was giving Mr Wiszniewski the benefit of the doubt in terms of psychotic thought processes playing a causal role in the offending.  Dr Haeney disagreed saying that, “it’s looking at the entire clinical picture and feeling that it’s more likely his actions were driven by his psychosis, or heavily influenced by his psychosis, rather than being distinct and separate to the psychosis”.[84]

    [84] T120.

14. Dr Haeney was asked about Mr Wiszniewski’s responses to the police at the hospital to the effect that that they were suggesting a criminal act had occurred.  Dr Haeney said that he had factored this comment into his opinion.  He said that it “clearly suggests he knew a criminal act had occurred at that time in the aftermath”[85] of the conduct.  He was asked whether that was relevant, from a psychiatric point of view, to the ultimate test of whether Mr Wiszniewski knew what he was doing was wrong according to the standards of reasonable people.  Dr Haeney said that he considered those comments were certainly relevant, however, given the totality of the information, he was more persuaded that at the material time Mr Wiszniewski was not able to reason as a reasonable person would that what he was doing was wrong.  He was asked how he could say that when Mr Wiszniewski made the comments to police some four or five hours after the fire.  Dr Haeney said it is his view that Mr Wiszniewski was “labouring under the influence of not just the real distress but also the delusions that he was unambiguously suffering from and that that influenced his ability to reason as a reasonable person would at the time”.[86]

    [85] T121.

    [86] T121.

15. I asked Dr Haeney whether, in his experience, it is uncommon for patients to have no history of having accessed psychiatric services prior to admission to James Nash House.  Dr Haeney said that it is “probably more common that people do have psychiatric history but it’s certainly not uncommon for the offence that brought them to James Nash House to be their first contact with services”.[87]  I also asked whether, in his forensic mental health experience, it is not uncommon for patients to appreciate that their conduct was wrong soon its commission.  Dr Haeney said that he had seen plenty of cases where the mental impairment defence was unambiguous, yet immediately after the incident the person knows that they have done something that they should not have, but actually at the time were under the influence of the psychosis.  He explained that they are not able to reason and weigh up all the relevant factors when they are performing the unlawful act.

    [87] T121-122.

16. In relation to Mr Wiszniewski’s inability to explain, or the absence of an explanation for, the conduct, Dr Haeney said that it is not uncommon for psychosis to be associated with difficulty remembering what occurred afterwards as it impairs the ability to lay down those memories.  He explained that it is not uncommon that people cannot explain exactly why they did what they did, but often collateral and contemporaneous evidence leaves little room for doubt.

17. Finally, Dr Haeney commented that Mr Auty-Jaldorn’s reference to Mr Wiszniewski having accused him of poisoning his water supply and that he had rarely seen him outside, together with comments regarding the barricading of the unit, speaks to Mr Wiszniewski’s underlying mental state going back several years and shows that he was trying to protect himself and Ms Cameron from imagined aggressors and persecutors.  He said that “it gives clear evidence that despite the fact that he was clearly able to function [and] that Dr Maxwell was saying he actually cared for Ms Cameron extremely well, he was still labouring under likely delusions at that time”.[88]

    Affidavit of Mr Wiszniewski dated 29 April 2020[89]

    [88] T124.

    [89] Exhibit D5.

18. Mr Wiszniewski swore an affidavit deposing to, in the main, matters or complaints concerning events in his past and his interactions with authorities regarding complaints about Ms Cameron’s care.  Dr Haeney described the matters deposed to by Mr Wiszniewski and the documents exhibited to his affidavit in a letter to Mr Wiszniewski’s solicitor dated 15 May 2020.[90]  Dr Haeney reported:

    I will not attempt to review each of the exhibits submitted to the court for this letter, but would be happy to do so in an addendum report should one be required.  In summary, the affidavit provides evidence of Mr Wiszniewski’s previous character and prior episodes in which he has made complaints, made self-referential inferences about wider events, or believed he or his partner are subject to persecution and conspiracy.  It is clear this behaviour spans a lengthy period and a great deal of documentation reflecting a belief that his partner was raped in Cramond Clinic (psychiatric unit at the Queen Elizabeth Hospital) in 2007 and that this was being covered up, despite little evidence to support the claim.  However there is mention of similar problems even before that, with reference made to an “horrific story” involving his dental care, in a letter from the manager of the Magdalene Centre dated 24^th January 2001.  Mr Wiszniewski confirms to me that he believes he was mistreated by a dentist who deliberately tried to damage his teeth and then masqueraded as another dentist in order to continue treating Mr Wiszniewski when he tried to change to another practitioner. 

    [90] Exhibit D8.

19. Dr Haeney noted the majority of the exhibits to Mr Wiszniewski’s affidavit as dating from 2007 to the current admission.  He said that within those exhibits Mr Wiszniewski alleges ill-treatment or persecution by a number a disparate persons and agencies, including mental health services (and specific nurses or doctors), a radiologist/radiographer, university lecturers, police, the former State Premier Jay Weatherill, the Guardianship Board, Housing SA, Disability SA, the Office of the Public Advocate, Ms Cameron’s father, and several neighbours.  Dr Haeney noted that on two occasions Mr Wiszniewski thought that spy organisations had interest in him and that there were three instances of an attempt being made on his life.

20. Dr Haeney reported that Mr Wiszniewski complained to multiple agencies including the police, the Police Complaints Authority, various politicians, the Health and Community Services Complaint Commissioner, the Ombudsman, the Independent Commissioner Against Corruption, the Office of Public Integrity, and other organisations.  As noted by Dr Haeney, the responses included in the exhibits suggest that there was little basis for the majority of Mr Wiszniewski’s concerns. 

21. In relation to exhibit PW9 an undated, handwritten, and typed statement by Mr Wiszniewski offering his account of the events of 16 July 2018, Dr Haeney commented:

    It is clear that at the time of writing the letter Mr Wiszniewski was attempting to mislead the investigation by denying involvement and instead suggesting “I believe that Haydyn (his neighbour) was responsible for the fire”.  He describes his belief that his neighbour was accessing his unit and sexually assaulting Ms Cameron while Mr Wiszniewski slept.   However, in relating his plan to seek hospital care for [Ms Cameron], he makes a telling statement which, I believe, sheds light on his mental state at the material time.  He indicates that he decided to seek care for her “as her deterioration and these likely attacks for [Ms Cameron] would not allow me to give her the care and safety she needed”.  He also noted that while talking to her about this decision, “I know Haydyn would have heard this” having made earlier reference to him listening at the windows.  He also confirms that believed (and still does) that his neighbour was using ‘bugs’ or surveillance devices to listen in to their conversations.

22. Dr Haeney considered that, overall, the exhibits to Mr Wiszniewski’s affidavit expose a concerning pattern of behaviour spanning nearly 20 years, which “demonstrates features consistent with a paranoid personality disorder, with evidence of excessive sensitivity to setbacks and rebuffs, suspiciousness and a pervasive tendency to distort experience by misconstruing the actions of others as hostile, persistent self-referential attitude and preoccupation with unsubstantiated, conspiratorial explanations of events”. 

23. Dr Haeney noted, however, that there were also features which are not consistent with a paranoid personality disorder.  In particular, Mr Wiszniewski has been convinced of a number of clearly false beliefs, out of keeping with his educational and cultural background.  Dr Haeney stated that, for example, Mr Wiszniewski has beliefs that on several occasions people have tried to kill him, giving him poisoned chocolate or using a focussed x-ray beam to erode his blood vessels.  Mr Wiszniewski believes that neighbours, mental health services, police, and politicians conspired to surveil him and attack Ms Cameron.  Dr Haeney stated that these are delusions.  The depth, strength, and duration of these beliefs, in his opinion, exceeds the characteristic distortions seen in paranoid personality disorder, noting that the delusions are pathological, indicating an underlying illness (rather than a disorder of personality). 

24. Dr Haeney considered that while the longitudinal history suggests that Mr Wiszniewski has a paranoid personality structure, he also suffers delusions.  Dr Haeney concluded his letter, stating:

    Mr Wiszniewski’s precise motivation for starting the fire remains uncertain.  He has not been able to shed further light upon it.  Comments made in exhibit PW9 suggest that at the very least, his fears about his and his partner’s safety (which, in my opinion, are delusions) contributed to his delusions that he could no longer care for her at home. 

    and that:

    … Mr Wiszniewski also feared what would happen to him and [Ms Cameron] afterwards, given his perception of the conspiracies and cover ups believed had beset them.  While his initial intention may have been to seek hospital input for [Ms Cameron], instead he started a fire that jeopardised her life, his own life and the lives of his neighbours and emergency services personnel. 

    Dr Haeney was recalled to give further evidence.  He reiterated that on the balance of probabilities his opinion that Mr Wiszniewski’s delusions materially impacted upon his actions and that without these delusions he is unlikely to have engaged in the conduct.  Dr Haeney considered that it is more likely than not that the consequence of his mental impairment was that Mr Wiszniewski could not reason at the time of the conduct about whether the conduct, as perceived by reasonable people, was wrong. 

    The Director’s submissions

25. The prosecution disputed the “very hypothetical and speculative opinion” Dr Smith and Dr Haeney have arrived at in connecting Mr Wiszniewski’s alleged offending. It was submitted that Mr Wiszniewski’s conduct post-fire was rational and indicative of his appreciation of the wrongfulness of his conduct, for example, his cries for help before being rescued, and his interactions with the first responders. Furthermore, the prosecution submitted that the comments Mr Wiszniewski made to Detective Sergeant Schar during an interview, detailed at para [38], were an attempt to distance himself from the offending and imply the fires were accidental. The post-fire conduct together with his denials, evasiveness and his capacity to pick and choose answers after the fire undermine the claim of mental incompetence. It was argued the psychiatrists “have paid lip service” to what the prosecution submitted is Mr Wiszniewski’s deliberate lack of candour in arriving at their “speculative opinion about his mental incompetence”. It was contended that when the psychiatrists were asked what role the delusional thinking played in the alleged offending they said they do not actually know. It was submitted that Dr Smith’s evidence on the topic of criminal wrongfulness was to the effect it all turned on Mr Wiszniewski’s motivations for the conduct. It was pointed out that her evidence on this topic was not clear and she appeared to be struggling with the ultimate issue. The prosecutor agreed that any lack of clarity in her evidence on the issue may be attributable to her lack of experience giving evidence and addressing the test prescribed by s 269C of the CLCA.

1. The prosecution accepted that Mr Wiszniewski’s actions in barricading his home and “beefing up security” in the weeks prior to the fire are “probably a reflection of some of the delusions that he was experiencing prior to the conduct”.  However, it was submitted that these security measures are really important because they reveal the practical and harmless effects of his delusional thinking.  It was contended that this was “chalk and cheese with any suggestion of someone who has a tendency to commit serious crimes”.  It was further contended that the delusions did not ever go as high as to be the prompt to the commission of the alleged offending.

2. Submissions were made about Mr Wiszniewski deliberately removing the smoke detector referred to by Ms Cameron’s father.  Mr Wiszniewski told Dr Smith that he removed the detectors so that his cannabis smoking would not be detected.  He told Dr Haeney he removed it and wrapped it up to prevent activating it when he smoked cannabis.  It is not clear whether he gave these answers in response to being told about the smoke detector found by Mr Cameron.  Further, there is no reference to smoke detectors by the fire scene investigator.

3. It was submitted that Dr Maxwell’s second affidavit and letter dated 2 April 2020 make retrospective observations about Mr Wisniewski’s mental health deteriorating as Ms Cameron’s condition worsened, but that Mr Wisniewski still retained his willingness and ability to care for Ms Cameron.  It was submitted that this dovetails with the evidence of Dr Haeney that outside of his delusional thought processes Mr Wisniewski was still able to function reasonably well.  It was submitted that Dr Maxwell’s evidence provides some insight into the nature of Mr Wisniewski’s mental health around 2015 but it does not impact or have any bearing on the acute issue of mental competence to commit the alleged offending.  It was argued that Mr Wisniewski’s mental health issues were not so extreme at the time of the conduct as to render him a dysfunctional individual.  On the contrary, he was still able to live and function in a way that did not prevent him caring for Ms Cameron. 

4. It was also submitted that Dr Haeney’s letter dated 15 May 2020 does not change Dr Haeney’s opinion about mental incompetence, but what it does do is provide some kind of insight into the nature and history of Mr Wisniewski’s paranoid thought processes over an extended period of time.  It was submitted that the prosecution had not challenged that Mr Wisniewski had a history of mental health issues.

5. It was argued that “We still don’t have any direct insight as to what the thought process or motivation was on the part of Mr Wisniewski”.[91]  It was submitted that this case is particularly difficult as Mr Wisniewski has had many opportunities to explain his conduct but never has, and the doctors do not have a proper explanation for what he did.  In response to my comment that the other unusual characteristic of this matter is that Mr Wisniewski has not clung onto what might be viewed as a favourable explanation that has been put to him by his psychiatrist, the prosecutor stated:[92]

   … the prosecution submission is the reason why he hasn’t been truly forthcoming is because it is going to reveal a knowledge of the wrongfulness of what he was doing, which is why it’s no fluke or coincidence within moments of the fire being lit, he is behaving in a rational way, he is concerned about [Ms] Cameron, he’s concerned for her wellbeing and all of that behaviour at the scene is consistent with someone who knew exactly what was going on and that what they did was wrong.

   It was contended that “how on earth on the requisite standard, in light of all of that, the doctors are still clinging to a speculative opinion about not appreciating the wrongfulness of what he did is beyond me”.[93]

   [91] T214-215.

   [92] T215.

   [93] T215.

6. It was submitted that there are significant and underlying deficiencies in Dr Smith’s and Dr Haeney’s method and their ultimate opinions such that I should find the presumption of mental competence has not been displaced.

   Mr Wiszniewski’s submissions

7. It was submitted that Mr Wiszniewski had, for a long period of time, a significant mental health problem.  He developed distrust of people from his time university and, over time, his distrust has gotten worse.   

8. It was submitted that Dr Maxwell had observed that there was a deterioration in his behaviour, as did Dr Lavender. It was pointed out that when he was first assessed at the Royal Adelaide Hospital it was discerned that he had a psychiatric illness and he was admitted to James Nash House under a s 269X order. Dr Furst was of the view that there was a mental health issue on admission, as was Dr Smith.

9. It was pointed out that Dr Haeney considered that Mr Wiszniewski was under the influence of a mental impairment at the time of the conduct and that he pointed out that over the time that Mr Wiszniewski has been at James Nash House he has been receiving medication and he has been talking to his treatment team. In that time, it was submitted, his thought processes have improved.[94] 

   [94] Exhibit PW9, forming part of Exhibit D5.

10. 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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. It is apparent that in March 2019 Mr Wisniewski accepted responsibility for the fires after months of denial and blaming his neighbour.  Dr Smith noted that whilst there was no change in the quality or intensity of Mr Wisniewski’s delusional beliefs upon the change in his medication to Olanzapine, several months after starting that medication he admitted to setting the fires.  Dr Haeney commented that there had been very gradual improvement in Mr Wisniewski over the time he had been at James Nash House.  In this context, Dr Haeney said that it is quite likely that he accepted responsibility in March 2019 for having set the fires after months of receiving medication and his delusional beliefs being challenged by his treating psychiatrists.

17. Mr Wisniewski remains unable to explain why he set the fires despite being given possibilities by Dr Haeney.  Dr Haeney said that it is not uncommon for psychosis to be associated with difficulty remembering what occurred afterwards as it impairs the ability to lay down those memories.  He explained that it is not uncommon that people cannot explain exactly why they did what they did.  Dr Haeney explained that in the absence of a clear explanation for the conduct he had considered all possible motives, including nonpsychotic motives and the presence of the undoubted psychosis at the time of the conduct.  Having done so he was led to conclude that it is more likely than not that Mr Wiszniewski’s actions were primarily driven by his psychotic illness[96] and that he was unable to reason that the conduct was wrong as perceived by reasonable people.[97]  Dr Haeney explained that:[98]

    Because Mr Wiszniewski believed that he was being subject to persecution by neighbours, by police, by government, by mental health services, by all the people around him and that in that situation, I believe when he’s faced with being unable to manage his partner’s significant disabilities any further, believing that people were actually entering into his flat, into his unit, to sexually assault her, to undermine his care of her, then I think that is a more likely reason for him starting the fires than anything else that I have heard.  But, I acknowledge, that is speculation because Mr Wiszniewski does not say that.

    [96] T91-92.

    [97] T91.

    [98] T92.

18. I am satisfied, pursuant to s 269C(1)(b) of the CLCA, that, at the time of the conduct giving rise to the alleged offending, Mr Wiszniewski was suffering a mental impairment namely a delusional disorder and, in consequence of that mental impairment he did not know that the conduct was wrong, that is he could not reason about whether the conduct, as perceived by reasonable people, was wrong.

19. Having considered the whole of the evidence and, in particular, the evidence of Dr Haeney in response to the issues of concern and the criticism of the psychiatric opinion by the prosecution, I am satisfied that it has been established on the balance of probabilities that Mr Wisniewski was, at the time of the conduct, mentally incompetent to commit the alleged offending pursuant to s 269FA(3) of the CLCA.

20. 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

21. 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.

22. 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.

23. I make an order pursuant to s 269O(1)(b)(i) of the CLCA committing Mr Wiszniewski to detention.

    Orders

    1.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.