Tasmania v Lang
[2022] TASSC 61
•12 October 2022
[2022] TASSC 61
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Tasmania v Lang [2022] TASSC 61 |
| PARTIES: | STATE OF TASMANIA |
| v | |
| LANG, Christine Leila | |
| FILE NO: | 869/2020 |
| DELIVERED ON: | 12 October 2022 |
| DELIVERED AT: | Launceston |
| HEARING DATE: | 29 September 2022 |
| JUDGMENT OF: | Pearce J |
| CATCHWORDS: |
Criminal Law – Procedure - Trial had before judge without jury – Generally – Accused charged with arson contrary to the Criminal Code, s 268 – Defence of insanity.
Criminal Code Act 1924 (Tas), s 16.
R v Porter (1936) 55 CLR 182, The Queen v Falconer (1990) 171 CLR 30, followed.
Aust Dig Criminal Law [3164]
REPRESENTATION:
Counsel:
State: J Greenwood Accused: K Baumeler
Solicitors:
State: Director of Public Prosecutions
| Judgment Number: | [2022] TASSC 61 |
| Number of paragraphs: | 24 |
Serial No 61/2022 File No 869/2020
STATE OF TASMANIA v CHRISTINE LEILA LANG
| REASONS FOR JUDGMENT | PEARCE J |
12 October 2022
1 The accused, Christine Lang, is charged on indictment with one count of arson contrary the Criminal Code, s 268. She pleaded not guilty. In accordance with an order made by me pursuant to s 361AA of the Criminal Code, I conducted the trial as a single judge in place of a trial by jury.
Presumption of innocence and burden of proof
2 Ms Lang is presumed to be innocent until the prosecution proves her guilt to my satisfaction beyond reasonable doubt. The prosecution must prove that Ms Lang committed the act or acts which constitute the crime of arson.
3 However it is accepted by both the prosecution and defence that, if the acts which constitute the crime of arson are proved, the question arises of whether Ms Lang is criminally responsible for those acts by reason of mental disease: Criminal Code, s 16. She is presumed to have been of sound mind at the time that she committed the relevant acts unless the contrary is proved: the Code, s 15. She bears the onus of establishing that she is not criminally responsible on the ground of insanity, although the onus may be discharged on the evidence presented by the prosecution: the Code, s 381. The standard of proof is on the balance of probabilities: the Evidence Act 2001, s 141(2).
The charged crime
4 The indictment alleges that Ms Lang, on 16 April 2020, unlawfully set fire to the residential unit at 2/19 Bounty Street in Warrane. The unit was owned by the Director of Housing and was where Ms Lang lived with her son. A person is guilty of the crime of arson if he or she unlawfully sets fire to any building. The prosecution must establish that the person set fire to the building intentionally or with subjective recklessness, that is, appreciating that his or her act or acts may result in the building being set on fire but acting regardless of that risk.
5 All of the evidence was adduced on the prosecution case and is, with one exception, in the form of agreed facts and exhibits. At about 4.30pm on 16 April 2020 a neighbour saw smoke coming from Ms Lang's unit. A phone call was made to emergency services at 4.35pm. By the time they arrived the room which the evidence establishes was Ms Lang's bedroom was fully engulfed by flames and the fire was progressing into the roof space. The fire was extinguished but not before it caused extensive damage to the structure of the unit. The later investigation established that the origin of the fire was in that room, in the corner near the bed. There was no evidence that the fire could have resulted from a spontaneous, accidental or chemical ignition, and the author of the investigation report concluded that the fire was deliberately lit.
6 At the time the call was made to emergency services the occupant of the neighbouring unit, who had seen the smoke, found Ms Lang outside in the street. He asked what had happened and she told him that she had "set the place alight using a lighter." The police arrived soon after the fire service. Ms Lang was spoken to by two police officers. The conversations were recorded on a body worn camera. Some of the conversation took place in the presence of Ms Lang's son as he asked her what had happened. As will later be explained, Ms Lang was very unwell when those conversations took place. Her manner was vague and, at times, incoherent. However, she said that she had lit the fire with a cigarette lighter by lighting pillows in her bedroom. She produced a lighter and gave it to one
2 No 61/2022
of the police officers. I am satisfied that her admissions were true. She appeared to be distressed that she had burnt her son's belongings. What she said was entirely consistent with the result of the investigation into the cause of the fire. She would not have known what she told the police unless it were true. Later on the same day, when she was involuntarily admitted to hospital pursuant to an assessment order made under the Mental Health Act 2013, she told the admitting doctor that she set fire to her house and wanted to die. Much later she was interviewed by a forensic psychiatrist, Dr Rajan Darjee. By then, according to Dr Darjee, Ms Lang was "well". She again admitted that she had lit the fire and that one of the reasons she had done so was to kill herself.
7 The evidence establishes to my satisfaction beyond reasonable doubt that Ms Lang deliberately and intentionally, without justification or excuse, set fire to her housing unit. She does not contend to the contrary. I am satisfied beyond reasonable doubt that she has committed the acts charged in the indictment which, but for the effect of s 16 on her criminal responsibility, would constitute the crime of arson.
| Insanity | |
| 8 | There is some evidence of Ms Lang's conduct before and after she lit the fire which sheds light on her mental state. Earlier that day she was seen by a neighbour at a pharmacy, acting strangely and appearing to be shaking and confused. The same neighbour saw her on the nature strip outside her home just after the fire was first noticed. She again appeared confused. A different neighbour saw Ms Lang outside her home at about 3.00 pm, about an hour before she set the fire. She appeared to be off balance. She then shook the fence and tried to climb it. |
| 9 | Dr Darjee's evidence was admitted as part of the prosecution case. He holds degrees in science and medicine from the University of Edinburgh, as well post-graduate degrees, a Master of Philosophy and Doctor of Medicine from the same university. He is a fellow of both the UK and Australia/New Zealand College of Psychiatrists. He is currently acting deputy clinical director of the Tasmanian Statewide Forensic Mental Health Service. He holds similar appointments in Victoria and an academic position in forensic mental health. Until 2018 he worked in forensic psychiatry in Scotland for 20 years. He is widely experienced and is the author of many academic publications. His considerable expertise is not in dispute. |
| 10 | Dr Darjee's evidence is in the form of a report dated 6 June 2022 supplemented by oral testimony. He interviewed Ms Lang on 3 May 2022 and had access to all of her Tasmania Health Service mental health records. He viewed the body worn camera footage taken by the police after the fire and an audio visual recording of an interview of Ms Lang conducted by the police later the same day. |
11 The Code, s 16(1) provides:
"(1) A person is not criminally responsible for an act done or an omission made by
him -
(a)
when afflicted with mental disease to such an extent as to render him incapable of:
(i)
understanding the physical character of such act or omission; or
(ii)
knowing that such act or omission was one which he ought not to do or make; or
(b)
when such act or omission was done or made under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist."
3 No 61/2022
12 In terms of the criminal responsibility of Ms Lang according to the terms of s 16, Dr Darjee's opinion is that she was, at the relevant time, suffering from a mental disease, an acute exacerbation of schizoaffective disorder with prominent psychotic and depressive symptoms. He described the condition in these terms:
"… schizophrenia is a severe mental illness that affects about 1 per cent of the population. And it's a type of psychosis, so we use the term psychosis when someone has a mental illness where they lose touch with reality – so, they develop symptoms like delusions, hallucinations, disordered thinking. And schizophrenia is an illness where a person develops those symptoms and, fortunately, it usually responds well to antipsychotic medication. Sometimes, we use the term schizoaffective disorder when someone meets the criteria for having an illness like schizophrenia but they also have prominent symptoms of a mood disorder – either depression or mania or elation. So, either way, the person has symptoms of schizophrenia but schizoaffective disorder just means they have the additional mood symptoms, as well."
13 Dr Darjee does not assert that the mental disease with which Ms Lang was afflicted at the time she lit the fire rendered her incapable of understanding the physical character of the act of lighting the fire. As a result, s 16(1)(a)(i) of the Code has no operation. Nor does Dr Darjee's evidence support the finding that Ms Lang lit the fire "under an impulse which, by reason of mental disease, she was in substance deprived of any power to resist". Accordingly, s 16(1)(b) has no part to play. However, in Dr Darjee's opinion, when Ms Lang set fire to her unit she, by reason of her schizoaffective disorder, was incapable of knowing that her acts were ones she ought not do. If that opinion is accepted, Ms Lang would not be criminally responsible for her acts according to the terms of s 16(1)(a)(ii). The prosecution does not challenge his conclusion.
14 A summary of the essential aspects of Dr Darjee's evidence is sufficient to explain the basis of his opinion. At the time of the fire Ms Lang was aged 62. In her early life she became a nurse and worked in that capacity until about 2015. She had been troubled by mental illness for about 30 years. She first consulted a psychiatrist in the 1990s or 2000s but her diagnosis at that stage was unclear. For reasons connected to her mental health she had 13 admissions to hospital during 2013 and 2014 after the end of her second marriage. Her complaints included various hallucinations and delusions. In the community she was managed by mental health services. Her diagnosis was complex post-traumatic stress disorder related to childhood abuse and psychotic decompensation under stress.
15 During the period leading up to the fire she wanted to return to nursing, but became paranoid about why her qualification papers had been lost by the regulation authority. She had ceased her medication and her thoughts became disordered. She believed that a ghost was haunting the house and felt she had to kill it and kill herself. Before lighting the fire she took two separate overdoses of medication. The notes of her admission following her arrest record that she was acutely psychotic and suicidal. She said that she was hearing voices and thought someone had "done voodoo." She wanted to "burn everything to get rid of the ghost" which had been disturbing her for months. She described hearing her thoughts projected out loud and felt people on the television were talking about her. There were various other psychotic symptoms including other delusions and hallucinations. In Dr Darjee's opinion Ms Lang:
"… genuinely believed that the house was haunted and that she had to die, and that her only option was to burn down the house to get rid of the ghost and to kill herself. However, in my view, she was capable of controlling her behaviour generally, albeit that she felt she had no other choice, under the circumstances, than to set the fire."
16 In his oral testimony, Dr Darjee said that his observations of Ms Lang on the body worn camera footage and in the police interview strengthened his opinion. He concluded that:
4 No 61/2022
"She clearly had delusions. She probably had hallucinations. She also appeared to be quite severely depressed with suicidal ideation. So, in my view at the time that the offences occurred, she was very unwell."
17 A little later, when asked by the prosecutor whether he was able to say, in general terms, how unwell Ms Lang was on 16 April 2020, Dr Darjee answered:
"I think she was severely and floridly unwell. I think that's as unwell as people get when they're suffering from psychosis and, clearly, I think – thinking of her history … that's the most unwell that she's ever been."
18 My own observation of the body worn camera footage and the interview is to a similar effect. Ms Lang appears vague, non-responsive and at times incoherent. There are long periods of silence. For much of the police interview she said nothing and appears to be falling asleep.
19 In the course of the evidence I expressed some reservations about whether Ms Lang's condition affected her to such an extent as to render her incapable of knowing that the act of setting fire to her unit was one which she ought not to do. I asked Dr Darjee whether his conclusion was consistent with the evidence that, during the events immediately after the fire, Ms Lang went searching for her son to ensure that he was not inside the unit, went to the neighbouring unit to ensure that its occupant was not still inside, and then seemed to appreciate that what she had done had resulted in her son's belongings inside the unit had been burnt. That evidence suggested to me the possibility that Ms Lang had the capacity to understand that she had acted wrongly, even if her mental illness led her to do what she did. Dr Darjee explained the position in this way:
"I think in those moments afterwards she realised she'd done something that she shouldn't have done. I think at the time that she actually did it, she wasn't able to appreciate the wrongfulness of what she was doing."
20 During cross examination, Dr Darjee returned to the same subject and continued:
"Her reasoning was seriously affected by her illness in that her reason for wanting to do that was to do with a ghost and to do with her ending her own life because of her acute mental illness at the time.
…
…what a person thinks afterwards is different from what they think at the time in
terms of the time of the offence.… I think you also have to consider the global impact of a severe psychotic state of an individual in terms of what happens is there can be some quite rapidly shifting feelings, emotions, beliefs. There's also the impact on someone's emotional state in terms of severe depression and her perception of what's going on around her. So it wasn't just that she had these particular delusional beliefs and then acted on them. She had those beliefs. They help us understand why she acted in that way, but her ability to reason and her judgement was also globally affected in terms of the various other factors that were due to her being acutely unwell at the time."
21 Counsel for both the prosecution and defence submitted that I should find that Ms Lang is not criminally responsible for the crime of arson by operation of s 16(1)(a)(ii) of the Code. The effect of Dr Darjee's evidence was that the symptoms being experienced by Ms Lang at the time of committing the crime included not only the delusions and suicidal ideation, but also that her ability to reason and exercise judgment was so impaired that she did not have capacity to know the rights and wrongs of her conduct. The evidence supports the conclusion that Ms Lang is exempted from criminal
5 No 61/2022
responsibility under the second limb of s 16(1)(a)(ii). Accepting that Ms Lang is exempted from
criminal responsibility under that provision, there is no room for the operation of s 16(3).
Section 16 findings
22 I am satisfied that schizoaffective disorder is a mental disease within the meaning of s 16 and that Ms Lang was afflicted with that condition when she set fire to her unit. I direct myself in accordance with the comments of King CJ in The Queen v Radford (1985) 42 SASR 266, as approved by Mason CJ, Brennan and McHugh JJ in The Queen v Falconer (1990) 171 CLR 30 at 53.
23 I am not satisfied that the condition rendered Ms Lang incapable of understanding the physical character of the act of setting fire to her unit, s 16(1)(a)(i), nor that she committed the act under an impulse that she was unable to resist, s 16(1)(b). However, I accept Dr Darjee's unchallenged opinion about the operation of s 16(1)(a)(ii). His evidence, taken with the other evidence, satisfies me on the balance of probabilities that Ms Lang was, at the time of committing the relevant acts, affected by symptoms of schizoaffective disorder to such an extent that she was rendered incapable of knowing that setting the unit on fire was an act she ought not do. In so finding I direct myself in accordance with the charge to the jury given by Dickson J in R v Porter (1936) 55 CLR 182, stated and applied by Brett J in Tasmania v Smyth [2022] TASSC 50 at [24]. Through the disordered condition of her mind, Ms Lang was incapable of reasoning, with a moderate degree of sense and composure, that it was wrong, having regard to the everyday standards of reasonable people, to set fire to her unit.
| Verdict | ||
| 24 | On the charge of arson contrary to s 268 of the Criminal Code, brought on indictment 80/2021, I return the following verdict, in the terms required by s 383(2) of the Code: | |
|
0
3
1