The State of Western Australia v ABC - [2013] WADC 125

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- ABC [2013] WADC 125

CORAM: BOWDEN DCJ

HEARD: 30-31 AUGUST 2013

DELIVERED : 2 AUGUST 2013

FILE NO/S: IND 1338 of 2012

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
ABC

Catchwords:

Criminal law - Trial by judge alone - Unsoundness of mind

Legislation:

Criminal Code
Criminal Procedure Act 2004

Result:

Count 1 - not guilty due to unsoundness of mind
Count 2 - not guilty due to unsoundness of mind
Count 3 - not guilty due to unsoundness of mind

Representation:

Counsel:

The State of Western Australia : Mr B Hollingsworth
The Accused : Mr B Jones

Solicitors:

The State of Western Australia : Director of Public Prosecutions
The Accused : Jones Legal

Case(s) referred to in judgment(s):

Evans v The State of Western Australia [2010] WASCA 34
Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659
The Queen v Porter (1933) 55 CLR 182
The State of Western Australia v Evans [No 2] [2012] WASC 366

BOWDEN DCJ: The accused, who I refer to as ABC, is being tried by judge alone. Pursuant to the Criminal Procedure Act 2004 (CPA) I must apply as far as practical the same principles of law and procedure that apply to trial by jury, and if the law requires a warning or instruction or prohibits a warning from being given to a jury I must apply that requirement or prohibition. I must include in these reasons, the principles of law and my findings of fact - CPA s 119, s 120

The Indictment

ABC is charged with three offences being:
1.On a date unknown between 1 September 2011 and 10 September 2011 at Carlisle, he indecently dealt with DEF, a child who he then knew to be his lineal relative, by touching her vaginal area. DEF was a child under the age of 16 years.
2.On another date unknown between 1 September 2011 and 10 September 2011 at Carlisle, he indecently dealt with DEF, a child who he then knew to be his lineal relative, by rubbing her vaginal area. DEF was a child under the age of 16 years.
3.On 10 September 2011 at Carlisle, he indecently dealt with DEF, a child who he then knew to be his lineal relative, by rubbing her vaginal area. DEF was a child under the age of 16 years.

Admissions

ABC admitted pursuant to s 32 of the Evidence Act1906 that he dealt with DEF on each of the dates and in the manner alleged in each count and that each dealing was indecent, and that he knew DEF was his lineal relative and knew she was a child under the age of 16 years (exhibit 1).
By virtue of these admissions all the elements of each offences is proven and ABC would be guilty of each offence unless he proves on the balance of probabilities that he is not criminally responsible for his acts due to unsoundness of mind.
Indecency is matter of law not fact and arguably cannot be the subject of a s 32 admission, however, I am satisfied beyond reasonable doubt that each of ABC's admitted dealings was offensive and unbecoming to common standards of propriety and the element of indecency is established.

The issue

The state accepts that ABC has a mental impairment (chronic paranoid schizophrenia) which was present at the time of the alleged offence.
The issue is whether that mental impairment deprived him of the capacity to know that he ought not to do the acts constituting the offences.

The law

The Criminal Code provides:
26.Presumption of sanity
Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes into question, until the contrary is proved.
27.Insanity
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the admission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or a capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(2)A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters but who is not otherwise entitled to the benefit of sub-section (1), is criminally responsible for the act or omissions to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
The defence must prove on the balance of probabilities that the accused was of unsound mind at the time of the commission of the alleged offence.
The Criminal Code defines 'mental impairment' as meaning intellectual disability, mental illness, brain damage or senility and 'mental illness' as meaning an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.
In Evans v The State of Western Australia [2010] WASCA 34, the court was dealing with the capacity of a person to know that he ought not to do the acts. Mclure P said:
An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from understanding that he (or she) ought not do the act. Knowledge (short of understanding) that to kill is punishable by law does not prevent such a finding. Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct. Whether an act is right or wrong is determined by reference to an objective standard. The question is whether the appellant had a complete incapacity to reason as to what was, by that objective standard, right or wrong [31]
In the same case, Wheeler JA referred to Dixon J in The Queen v Porter (1933) 55 CLR 182, 189 – 190:
The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. [56]
Her Honour said:
… the ability to know that one "ought not" to do an act or make an omission is a capacity to know that one "ought not" to do it according to ordinary standards of right and wrong, rather than knowledge that the act is unlawful. As the High Court observed, from a practical point of view it often may not matter much, because in relation to serious offences the two ideas "are not easily separable" (at 375). However, in cases where, as here, the distinction may arise, it should be made. The second principle is that the capacity which must be found to be lacking is not merely a capacity to appreciate, in some abstract sense, that others would view the act as wrong. Rather, it is a capacity of the particular accused either to discern the difference between moral good and evil, or to 'think rationally' of the reasons which would lead ordinary people to consider the act to be right or wrong. [60]
It is also important to avoid the danger of applying the standards of common sense and rationality used by sane rather than mentally ill people when considering ABC's actions and statements (Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659; The State of Western Australia v Evans [No 2] [2012] WASC 366 [253].
ABC elected not to give evidence and no adverse conclusion or inference can be drawn from his failure to do so.
I am to put aside feelings of prejudice and sympathy and determine the case solely on the evidence before me. The consequences of the verdict are not to be considered at this stage of the process.

The evidence

It is common ground that ABC was diagnosed with chronic paranoid schizophrenia at least by 2002 and has had multiple admissions to mental health units in Victoria and Western Australia. His previous admissions to mental health service providers in Western Australia include from 22 June 2009 to 7 August 2009, 13 August 2009 to 9 October 2009, 16 October 2009 to 2 December 2009, 3 June 2011 to 14 June 2011, 24 June 2011 to 1 August 2011, 11 September 2011 to 2 December 2011 and 2 December 2011 to 6 December 2011, 6 December 2011 to 28 March 2012. Some of those admissions involved ABC being disordered and delusional, for example, saying that he could talk to flies or was on an alien planet, or was pregnant and was part male/part female.

The prosecution evidence

Detective Johnson and the video record of interview

On 23 September 2011 ABC participated in a video recorded interview (VRI) with Detective Johnson (exhibit 3). During that interview, ABC admitted each dealing alleged in the indictment, that he knew he was the father of the victim and that she was under 13 at the time of the offences.
He told the police, inter alia, that his victim enjoyed the experience ('she seemed to like it', 'I figured she liked it'); that the victim wanted him to do it, ('DEF wanted me to', 'she seemed sexual'), that his victim benefited from the experience ('she talks, she's more communicating effectively', 'she relaxed', she went from being a bundle of nerves … to being relaxed and part of the family', 'she seemed to come to life, she fully came fully alive afterwards', 'she was smiling and googling', 'she did seem to change like she liked it'; that his victim initiated part of the contact ('she came over wanted to kiss me on the mouth', 'she kissed me on the mouth/lips'), that his victim had not been harmed ('I thought I am not doing any harm', 'I am not hurting her'), that he was confused when the offences were committed ('the first time was a bunch of confusion and I wasn't sure'); that others wanted him to be sexual with his daughter ('X wanted me to be sexual with DEF', 'X said can you push DEF (in the supermarket) but she said it in a peculiar way', 'she gets DEF's blanket and gives it to me' (to masturbate in), that being sexually abused as a minor is not unpleasant ('I remember stuff happening to me', 'I remember enjoying it'), that sexual contact between a father and daughter was not usual ('three or four girls were sexually touched by their fathers', 'all of my girlfriends have had things with their dads'), that both he and his 12 month old daughter found it a pleasurable experience ('I got excited', 'she seemed to get off on that'), and that others were involved in sexual behaviour with children ('I swear (her mother) was doing something similar'. 'A lot of porn actresses and models apparently had some sexual activity with their fathers'). He also expressed surprise at the reaction of others ('I was completely surprised because I kind of thought (the child's mother) she knew what was going on', ('it was just a stupid silly little thing').
As to the consequences of his behaviour, ABC told the police 'there was a risk but no danger' and he was 'getting around to thinking about the consequences and repercussions', 'I hadn't thought about (the consequences) completely at the time', 'I didn't think beyond that (I wasn't hurting her), but had the behaviour, the inappropriate behaviour continued for long, she may have been a social outcast, although apparently three and four girls are sexually touched by their fathers … I don't know whether she would be a social outcast or she would fit in really well … a lot of porn actresses and models apparently had some sexual activity with their fathers … as for consequences she may – I don't know. As to whether it is the right thing or not to be sexual with her I guess it is not the right thing but – no I disagree I think that at some point there has to be a certain level of – I don't know'
ABC also told the police that his daughter had been bashed and suffered brain damage whilst in the care of others. Detective Johnsons' evidence established that had occurred. ABC said as a result of the bashing DEF was intense, scared and nervous.
The content of the VRI were considered by Dr Febbo and Dr Brett in the preparation of their reports.

Dr David Stevens

Dr David Stevens is a consultant psychiatrist at the Bentley Health Service and was involved in ABC's care from June 2009 until about 12 months ago.
He said ABC suffered from schizophrenia, characterized by auditory hallucinations and bizarre delusions when unwell. ABC had been hospitalized, under his care, on several occasions both before and after the offences occurred and was the treating psychiatrist. Dr Stevens said ABC responded well to treatment.
Dr Stevens said that none of the admission/discharge summaries relating to ABC pre‑offence hospital attendances, referred to ABC holding beliefs related to sexual activity with a child
He said that when ABC was admitted to the Bentley Hospital on 11 September 2011, the day after the commission of the last two offences, hospital records show he was experiencing some delusional beliefs, including that he was pregnant and was part male/part female but not beliefs relating to sexual activity with his daughter.
Dr Stevens spoke to ABC on 13 September 2011 and he admitted he had been playing with his daughter, claiming that she had been 'rubbing against him in a sexual way' and admitted that he put his hands down the front of her nappy and touched her genitals and claimed that following this, she seemed to get 'stronger and healthier and appeared to enjoy it'.
Dr Stevens said that ABC was unclear about whether what he had done was wrong and referred to ancient Greek and Roman societies as examples where his actions may have not been against the law, and expressed the opinion that laws and society conventions regarding sexual abuse of children were arbitrary. ABC claimed what occurred had been 'blown out of proportion' and said 'I never hurt her' and 'she started it'. ABC was concerned that Child Protection may use his behaviour to take his daughter from him.
He described ABC's admission to hospital on this occasion as 'lengthy' but said ABC's reports of what he did to his daughter and his attitude regarding the abuse, were consistent throughout this period. Dr Stevens said he saw ABC about 10 times during the course of that admission.
Dr Stevens said it was possible that ABC may have been experiencing some psychotic symptoms at the time of the alleged offence, however there was no evidence that his actions were a direct result of those symptoms. He said that when ABC's mental state improved, following admission to the hospital and medication, he continued to hold the same belief about the alleged offences and did not express any regret or remorse about his behaviour.
Essentially, Dr Stevens was of the opinion (exhibit 7) that because the same beliefs relating to sexual contact with children were held whilst ABC was experiencing psychotic symptoms, and when he was not, those believes were not a direct result, or a consequence of his psychiatric condition.
Dr Stevens said that in his experience if ABC's delusional beliefs or hallucinations had been directly involved in his behaviour then once the symptoms resolved, ABC's feelings towards his behaviour would change and he would have expected some remorse.
He said that he was concerned that Mr Jones did not have a clear understanding of whether his actions were right or wrong and seemed to be trying to justify his actions, and was worried that he would continue to hold those beliefs towards sexual activity towards children. He said that ABC's justification for his beliefs about sexual activity towards children was not a consequence of experiencing psychotic symptoms or a delusional belief about his right to sexually exploit children.
Dr Stevens did not consider that when he complied, without the express consent of ABC it seems, with the police request (exhibit 4) for a report detailing ABCs condition/diagnosis and how that affected his behaviour, he was providing a specific medico‑legal opinion. Dr Stevens said he was just giving an account of his discussions with ABC and highlighting some of his concerns in the knowledge that other people would be providing medico‑legal reports on the questions of insanity.
His report did not disclose all the sources of information he relied upon in reaching his conclusion, although he stated those sources in his evidence.
Dr Stevens agreed that he did not detail within the report the results of his inquiries about the delusional beliefs that ABC was experiencing upon his admissions, or his belief that his victim seemed stronger and healthier and appeared to enjoy the sexual abuse or the influence of the delusional psychotic symptoms, or the nature of ABC's beliefs about his alleged action towards his daughter.
Dr Stevens was satisfied that the offending was not as a result of ABC experiencing delusional beliefs directly related to his daughter.

Dr Adam Brett

Dr Brett is a consultant and forensic psychiatrist who has extensive experience.
He has prepared reports for the court relating to fitness to plea, dangerous sex offenders and sentencing. Dr Brett has given evidence on many prior occasions for both the prosecution and defence.
Dr Brett report (exhibit 9) said ABC was a chronic paranoid schizophrenic who also had the clinical disorder of substance use and paedophilia.
Dr Brett said his report was prepared in a very unusual way because ABC declined to be interviewed by him. As a matter of law, this is ABCs' right and no inference adverse to ABC can be drawn as a result of that decision. Dr Brett agreed that had he been able to interview ABC, he would have had more confidence in his assessment.
He said the report and evidence was based mainly, but not exclusively, on the content of ABCs interview with the police.
Dr Brett said there was material within that interview that showed ABC had knowledge that the act he performed was wrong because he acknowledged that there were risks involved in his conduct and was getting around to thinking about the consequences and referred to inappropriate behaviour.
He pointed out that there was no prior history of delusions involving sexual activity with children. He said Dr Febbo's report appears to have been prepared without Dr Febbo having access to discharge summaries and without Dr Febbo exploring ABCs sexual history.
Like Dr Stevens, he considered that although ABC had chronic delusional ideas and was mentally impaired at the time of the offending, ABCs beliefs that children would benefit from sexual contact were cognitive disorders not delusions. Dr Brett reached this conclusion primarily because when the psychosis resolved the beliefs were still present, and he said therefore, the beliefs were not a result of any delusions but relate to ABCs' core beliefs about sex and as such were cognitive disorders, which were not mental impairments.
Like Dr Stevens, Dr Brett also said ABC showed no remorse or regret for his conduct once the psychosis resolved and said this further supported the conclusion that the beliefs were as a result of a cognitive disorder and not schizophrenia.
In evidence‑in‑chief he said the fact that ABC was sexually aroused was important because that required a motivation for that behaviour and the delusion described did not provide a motivation. Dr Brett said that you need a drive to become sexually aroused and that drive is usually a fantasy about a sexual object, which in this case, was ABC's daughter and that drive was due to his beliefs about children as sexual beings and consistent with cognitive distortions. In cross-examination Dr Brett agreed that a person could act sexually as a result of delusions.
Dr Brett said it was a reasonable conclusion that some of these cognitive distortions were delusional, but concluded that ABC's behaviour was driven by his sexual drive and his cognitive distortions helped facilitate and justify his behaviour.

Dr Brett accepted that mental illness makes it harder to differentiate between cognitive distortions of paedophiles and delusions of a mental disorder and said this may have been able to be clarified if he interviewed ABC.
Dr Brett agreed that suffering cognitive distortion does not rule out suffering from delusions. Dr Brett also said Dr Stevens was in the most advantageous position to assess ABC because he had treated him before the events, at the time of his admission to hospital immediately following the events and continued to treat him for some time after the events.
Dr Brett pointed out that during his interview with the police, ABC was able to give a coherent history, asking for a break half way through the interviews, was slightly fatuous and inappropriate at times, and smiling when discussing the offending behaviour.
Dr Brett said ABC made a number of statements consistent with cognate distortions of paedophiles. He described cognate distortions as sets a belief which offenders generate in order to overcome inhibitions against and guilt about offending and allow them to justify or excuse their actions.
He detailed ABC cognitive distortions as including ABC believes that children are sexual beings, that sex does not cause harm to children, that children are interested in having sex and are sexually knowing, and that ABC's experience of being sexually abused was good therefore sexual abuse would be good for his daughter.
Dr Brett said ABC had an extremely brittle illness and can become unwell quickly, and it was a treatment resistant disorder.
Dr Brett concluded that ABC had a mental impairment, which was present at the time of the alleged offending behaviour. He reached this conclusion based on the chronicity of the symptoms and the psychosis described when ABC was admitted to hospital shortly after the offending.
He said ABC's cognitive distortions were consistent with that of a paedophile offender and he appeared to be using those beliefs to help him justify his behaviour.
In his opinion, there was evidence that ABC knew that he ought not to do the act and the s 27 criteria were not fulfilled.

Dr Sam Febbo

Dr Febbo is a consultant and forensic who has extensive experience.
He has prepared reports for the court relating to fitness to plea, dangerous sex offenders and sentencing.
He prepared two reports in relation to the issue of ABC's unsoundness of mind (exhibit 6.1 and 6.2). He interviewed ABC on 20 December 2011 and 20 September 2012.
He said that ABC engaged appropriate at both interviews, and the history and presentation were consistent with a major psychiatric disorder, paranoid schizophrenia. In Dr Febbos' opinion, ABC had a severe psychotic disorder and was very unwell. He said the illness had not resolved, was treatment resistant and ABC still suffered from residue symptoms, and although he may have improved, the delusions still existed.
He said ABC was not suffering from a cognitive distortion, but rather a delusional belief which was a psychotic process. He said his delusional beliefs were bizarre, intense and fixed.
Dr Febbo said that although ABC was currently on antipsychotic medication, he continued to experienced intermittent psychotic symptoms including paranoid delusional ideation and auditory hallucinations.
He said the paranoid schizophrenia was severe in relation to the severity of the symptoms and the delusions and hallucinations experienced.
Dr Febbo said ABC's delusional beliefs included the belief that some form of sexual contact with his daughter was not only appropriate, but also beneficial, as it could potentially reverse the damage she had suffered when she was in the care of others, and expected of him. He said that although ABC understood his behaviour was unlawful and had an awareness that it may be morally wrong, the delusional belief system was so intense and extreme that they deprived him of his capacity to know that he ought not to do what he did and that was all part of the illness.
He disagreed with the concept that the treating psychiatrist was in the best position to diagnose ABC's condition at the time of the offences because he said forensic psychiatrists have the training and expertise to deal with the relationship between psychotic illness and offending behaviour.
Dr Febbo said he thought that the delusional beliefs had been held for a long time, even prior to the birth of ABCs daughter, and after her birth the beliefs probably became more fixated.
Dr Febbo said that delusional beliefs can be resistant to treatment and persist and ABC had remained unwell despite treatment. He believed that he was grossly impaired at the time of the offending.
Dr Febbo said the time of the offending, ABC would be unlikely to be able to rationally think, as is shown by the fact that a day later he was thinking that he was half male/half female. He said ABC did not have the capacity to stop his behaviour because of his delusional beliefs.
He agreed that many of the statements made by ABC during the course of the VRI like 'she seemed sexual', 'humans are sexual', 'I didn't hurt her', 'she seemed to like it', 'she seemed to get off on it', 'DEF wanted me to do it', 'a lot of girls had stuff with their father', 'I was sexually aroused', 'I put my hand there to get a better feel', 'I didn't get around to thinking of the consequence', 'not the right thing – I disagree I don't know – 'other people might find it inappropriate' were consistent with cognitive disorders, however he maintained they were delusional beliefs.
Dr Febbo said ABC believed that the sexual activity was expected of him because of his delusionary beliefs. He believed that because for example past girlfriends had sex with their father and his wife gave him the victim's blanket, these were signs that sexual contact was appropriate. Further, he believed he would be assisting his daughter to recover from the brain damage she suffered whilst in the care of others and believed he was expected to have sexual contact because other fathers had done so with their daughters.
The State say Dr Febbo's conclusions were based in part on information provided to him by the accused which was not confirmed by evidence from any source. They argued that Dr Febbo's report and evidence were inadmissible as the primary facts upon which he based his conclusion were not established in evidence.
The State said a number of ABC's statements to Dr Febbo fell within this category, including ABC's statements that he had been 'thinking about this since he was 22', that he had seen a TV show which depicted a father choosing lingerie for his young daughter, that his partner's mother's best friend received a perfume card with a symbol of a penis on it, his belief that children want to be close and intimate, his partner's conversation with a nurse, and hearing the television saying positive stuff about he and his daughter, half hearing voices at the time of the offence, and generally hearing voices and people talking about him and hearing music in his head and believing that he could read what other people were thinking.
These matters were not established by other evidence as ABC elected not to give evidence and they were not referred to by ABC in his VRI or any other evidence, however sufficient primary facts relied upon by Dr Febbo were referred to in the VRI (see [19], [20], ts 194 - 197) to enable his reports and evidence to be admitted.
Dr Febbo said his diagnosis was not based on any one statement made during the psychiatric interview, rather a combination of things including the interview considered as a whole, the consistency between the mental state examination and ABC's history and of course his judgement.
Dr Febbo based this conclusion in part on ABC's delusional interpretation of real content, real perception being interpreted in a delusional manner and his description of experiences in keeping with the delusional referential ideation.

Conclusions

I found each of Dr Stevens, Dr Febbo and Dr Brett to be credible, honest and reliable witnesses doing their best to assist the court.
I accept ABC had not expressed any delusionary beliefs about sexual contact with children or his daughter prior to the incident nor when hospitalised within a day of the last two offences.
Both Dr Stevens and Dr Brett were firmly of the opinion that because ABC's distorted beliefs about sexual contact with his daughter existed after the psychosis resolved and after medical treatment and hospitalisation, this indicated those beliefs were not a consequence of the psychosis and were cognitive distortions.
Both Dr Brett and Dr Stevens were also of the opinion that as ABC expressed no remorse about his behaviour after the psychosis resolved, this further supported their opinion that his believes were not a consequence of the psychosis.
However, I prefer the evidence of Dr Febbo to that of Dr Stevens and Dr Brett for the following reasons.
As forensic psychiatrist, I place more weight on the evidence of Dr Febbo and Dr Brett, who are both eminently qualified and experienced and due to their training, qualifications and experience deal with the relationship between psychotic illness and offending behaviour.
Dr Brett, through no fault of his own, did not interview ABC. This places Dr Brett at an enormous disadvantage and reduces significantly the weight I attach to his evidence. His conclusions are largely, but not exclusively, based on his interpretation of the VRI. That interview was conducted by the police officers who naturally ask different questions than forensic psychiatrists conducting a formal assessment would.
Dr Brett both in his report and his evidence said it would have been beneficial and preferable to interview ABC so he could explore his cognitive distortions, sexual history and better assess his mental state at the time of the alleged offences. He agreed he would have been able to provide a better assessment and have more confidence in his assessment if he had access to ABC.
Dr Brett acknowledged that ABC's undoubted mental impairment made it harder to differentiate between cognitive distortions of paedophiles and delusions of his mental disorder, and that this may have been able to be clarified by interviewing ABC.
Dr Stevens was the treating psychiatrist before and after the offences and saw ABC within two days of the offending and was the psychiatrist who had the most dealing with ABC. However, Dr Stevens agreed that he was not asked to and did not provide any detailed information directly referable to s 27 in his report and said the report was just his account of discussions with ABC and highlighted his concerns and provided his assessment of ABC mental state during the admission. Dr Stevens said he was aware that ABC would be assessed by independent psychiatrists. Dr Stevens had not seen the VRI.
I reject the assertion that Dr Stevens apparent failure to obtain the informed consent of ABC in providing the report to the police, shows the standard of care he provided to ABC was lacking. I accept Mr Jones' criticisms that Dr Stevens did not clearly explain the reasoning process in his relatively brief report and was not clear about the length or content of the meetings he had with ABC during the course of his hospital admission relevant to the charges, but I attach little weight to these criticisms.
I prefer Dr Febbo's evidence because of his experience and training as a forensic psychiatrist and because he was the only psychiatrist who both saw ABC and viewed the VRI.
Whilst the State validly points out that Dr Febbo did not become involved until some three months after the offences (in a the fitness to plead issue) and that some of the material he relied upon for his conclusion had not been established in evidence and he had not seen the discharge summaries, the very core of Dr Febbos conclusions that ABC believed sexual contact with his 12 month old daughter was not harmful, and she enjoyed it and that it was beneficial to her and it was common for daughters to have sexual contact with their fathers and that others wanted him to be sexual with his daughter and were encouraging it, were all matters referred to by ABC in the VRI and therefore properly proved before this court.
The State say there is nothing to support Dr Febbo's conclusion that ABC believed that he was expected to have sex with his daughter as opposed to being encouraged to have sex with her. I reject this submission. Dr Febbo's conclusion is clearly based on the whole effect of the beliefs, rather than concentrating on one phrase used by ABC.
The State submit that because the accused said in the VRI, although he did not think touching his 12 month old daughter on the vagina was inappropriate, some people would 'definitely, probably, think that it is inappropriate'. This must be considered in light of the context of his previous answer that 'as to whether it is the right thing or not to be sexual with her I guess it is not the right thing but – no I disagree, I think that at some point there has to be a certain level of – I don't know. I don't know how to answer the question' and his statements that he was 'a pretty nice guy, I think I can raise a daughter well.'
One must be careful to avoid the danger of applying a sane persons standards of common sense and rationality to statements made by a long term chronic paranoid schizophrenic, however the VRI considered in its entirety and in conjunction with his illness and Dr Febbo's opinion shows that ABC capacity to discern the difference between moral good and evil or to think rationally of the reasons which lead ordinary people to consider the act to be right or wrong is absent.
As I have said, I prefer the evidence of Dr Febbo to that of Dr Stevens and Dr Brett. The evidence of Dr Stevens and Dr Brett does not cause me to doubt Dr Febbo's evidence.
Ultimately, the question is whether I am satisfied on the balance of probabilities that at the time of the commission of the offences ABC had a mental impairment which deprived him of the capacity to know that he ought not to do the acts constituting the offences. Whilst experts are entitled to express their opinions, it is a question for me to determine.
I find as follows.
1.ABC was suffering from a mental impairment (chronic paranoid schizophrenia) at the time of the commission of the offences.
2.The mental impairment was longstanding and had resulted in his admission to health care facilities on approximately five occasions between 22 June 1999 and the date of the offences.
3.Prior to the commission of the offences, ABC had experienced other bizarre delusions due to his mental impairment.
4.At the time of the commission of each offence, ABC suffered from the bizarre delusion that sexual contact with his daughter was not only appropriate but also beneficial, and could potentially reverse the brain damage she suffered, and such contact was expected of him.
5.The delusions were due to the mental impairment.
6.The delusions were so intense and extreme that they deprived ABC of his capacity to know that he ought not to do the acts constituting the offence in that his mind was so disordered that he could not reason about the matter with a moderate degree of sense and composure and therefore did not know what he was doing was morally wrong.
7.I find ABC is not guilty on each offence by reason of unsoundness of mind.