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[2014] ACTSC 153
Supreme Court of the ACT
2014-06-27
Original judgment source is linked above.
[2014] ACTSC 153 (27 June 2014)
CRIMINAL LAW - PARTICULAR OFFENCES - Property Offences - Cause damage to property - Trial by judge alone - Not guilty because of mental impairment
CRIMINAL LAW - GENERAL MATTERS - General Liability and Capacity - Pleas of not guilty because of mental impairment - Meaning of "cannot reason with a moderate degree of sense and composure" - Meaning of "could not control the conduct" - (ACT), s 28.
Crimes Act 1900 (ACT), ss 309, 324, Div 13.3
Criminal Procedure Act 1986 (NSW), s 33
Crimes (Mental Impairment and Unfitness to Plead) Act 1997 (Vic), s 20(1)(b)
Evidence Act 2011 (ACT), s 67(1)
Supreme Court Act 1933 (ACT), s 68C
Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Final Report, Chapter 2 General Principles of Criminal Responsibility (1993, Commonwealth of Australia), p 37
JA Simpson and ESC Weiser, The Oxford English Dictionary (1989, Clarendon Press: Oxford) v 9
Macquarie Dictionary (2009, Macquarie Dictionary Publishers: Sydney)
Professor Smith, Walton v R [1977] Crim LR 747
Daniel M'Naghten's Case ((1843) [1843] EngR 875; 10 Cl & Fin 200
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Kosian v The Queen [2013] VSCA 357
Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
R v Balaban [1953] SASR 282
R v Cox [2006] SASC 188
R v Crabbe [1985] HCA 22; (1985) 156 CLR 464
R v DM [2010] ACTSC 137
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Massey [2000] ACTSC 107
R v Matheson [1958] 1 WLR 474
R v McDermott (2003) 172 FCR 1
R v Milka [2010] SASC 250
R v Morrison [2006] SASC 344
R v Mulcahy [2010] ACTSC 98
R v Porter [1933] HCA 1; (1933) 55 CLR 182
R v Telford [2004] SASC 248; (2004) 89 SASR 352
R v Weise [1969] VicRp 117; [1969] VR 953
R v White [2003] VSCA 174; (2003) 7 VR 442
R v Whiteley (1991) 93 Cr App R 25
Sodeman v The King [1936] HCA 75; (1930) 55 CLR 192
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
Taylor v The Queen (1978) 22 ALR 599
Wray v The King [1930] WALawRp 30; (1930) 33 WALR 67
1. Kylie Louise Barker is not guilty of the offence of causing damage to the property of another on 8 July 2012 because of mental impairment.
2. Kylie Louise Barker is not guilty of the offence of causing damage to the property of another on 8 July 2012 because of mental impairment.
3. The parties be heard as to the orders to be made.
1. After an altercation at the Dickson Tradesman's Union Club Limited, trading as The Dickson Tradies Club, at Dickson in the Australian Capital Territory, the accused, Kylie Louise Barker, was arrested. She was charged with making a threat to kill another person and with damaging property and on 7 March 2013 was committed for trial to this Court.
2. On 22 May 2013, she signed an election under s 68B of the Supreme Court Act 1933 (ACT) to be tried by a judge alone.
3. Under s 68C of the Supreme Court Act a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as the verdict of a jury.
4. The judgment of the court in such a case must include the principles of law that I as the judge apply and the findings of fact on which I rely. Though on appeal from a trial conducted under procedure regulated by s 33 of the Criminal Procedure Act 1986 (NSW) (a similar provision to s 68C of the Supreme Court Act), the High Court in Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 at 263; [28] stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and, ultimately, the verdict that is reached. In R v Massey [2000] ACTSC 107, Einfeld J held that the obligations stated by the High Court in that decision set out the obligations of a judge conducting a trial by judge alone under s 68C of the Supreme Court Act.
5. That section also requires me, as the trial judge when considering my verdict, to take into account any warning, direction or comment that any Territory law requires to be given or made to a jury in such proceedings.
6. There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137; R v Mulcahy [2010] ACTSC 98.
7. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and Ms Barker are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
8. The prosecution bears the onus of proving the guilt of Ms Barker at all times. Ms Barker does not have to prove that she did not commit the offences charged.
9. If Ms Barker does adduce any evidence which is consistent with her innocence, she does not have to prove it; it is for the prosecution to disprove it or to show that it is irrelevant, otherwise the prosecution will not have proved its case.
10. The standard of proof of the prosecution case is proof beyond reasonable doubt and Ms Barker cannot be found guilty of the offences unless the evidence, which I accept, satisfies me beyond reasonable doubt of her guilt.
11. Ms Barker is presumed by law to be innocent of each of the offences with which she has been charged unless and until the evidence I accept satisfies me that each and every element of the relevant charges has been proved beyond reasonable doubt. Ms Barker then loses the presumption of innocence and I must find her guilty.
12. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then she remains presumed innocent and I must find a verdict of not guilty.
13. If I am satisfied that there may be an explanation consistent with the innocence of Ms Barker of any charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find Ms Barker not guilty.
14. I must determine whether each of the witnesses is a reliable witness, that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness's evidence and reject part of that evidence or accept or reject it all.
15. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but I may use my common sense, experiences and wisdom in assessing the evidence.
16. Although committed on a count of threat to kill and one count of causing damage to property, an indictment containing those counts together with a further count of causing damage to property was filed on 8 April 2013.
17. On the morning of the trial, however, a further indictment was filed. It contained only two counts as follows:
FIRST ... on 8 July 2012 at Canberra in the Australian Capital
COUNT Territory KYLIE LOUISE BARKER caused damage to property belonging to someone else, namely Dickson Tradesman's Union Club Pty Ltd trading as The Dickson Tradies Club and intended to cause, or was reckless about causing, damage to that property or any other property belonging to it.
SECOND ... on 8 July 2012 at Canberra aforesaid KYLIE LOUISE
COUNT BARKER caused damage to property belonging to someone else, namely Dickson Tradesman's Union Club Pty Ltd trading as The Dickson Tradies Club and intended to cause, or was reckless about causing, damage to that property or any other property belonging to it.
18. Ms Barker pleaded not guilty to each count. I was asked to take that plea as meaning "not guilty by reason of mental impairment". See s 28 of the Criminal Code 2002 (ACT).
19. The two offences of damaging property are offences against s 403 of the Criminal Code. The elements of the offences are
(3) she intended to cause or was reckless about causing damage to that property or any other property belonging to someone else.
20. Damage is a term interpreted widely: R v Whiteley (1991) 93 Cr App R 25 at 29.
21. That she intended to cause such damage simply means that she meant to cause it and recklessness means that she was aware of the risk that the consequences, here the causing of damage, was likely to result but nevertheless committed the acts that caused the damage: R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 at 469.
22. It is these elements that must be proved by the Crown beyond reasonable doubt.
23. Much of the evidence about the events of the evening in question were not challenged by Ms Barker. Accordingly, I do not have to consider much by way of competing versions of events.
24. The evidence was broadly given by the two security guards at the Club, Mr Hobalaj Fawehinmi and Mr Craig Singleton, supported by CCTV footage taken from various places at the Club. From their evidence, I make the following findings of fact.
25. Sometime shortly after 11:00 pm, Ms Barker arrived by taxi at the Club. She was accompanied by a male. At the time, Mr Fawehinmi was outside the Club, screening persons seeking admission to the Club. He was standing by a number of bollards placed on the footpath adjacent to the Club, with straps between used to stream the prospective entrants to the Club.
26. Ms Barker, who was talking to herself, apparently making vulgar comments about the Queen, approached Mr Fawehinmi. As she came nearer, he could hear what she was saying. Ms Barker then said to him that she wanted to enter the Club and produced an identification card.
27. Mr Fawehinmi formed the opinion that Ms Barker was intoxicated and told her that she would not be admitted. Ms Barker became somewhat upset and said "Who the hell do you think you are? ... I could kill you for that". Mr Fawehinmi, who did not take the threat seriously, said "I'm only doing my job". Ms Barker became abusive, using offensive language.
28. A few minutes later, Mr Singleton, the senior security guard, and who had been watching from just inside the Club near the reception, came down the front steps of the Club. He said he had heard Ms Barker's raised voice.
29. He also assessed Ms Barker as being too intoxicated to be permitted entry to the Club and he confirmed Mr Fawehinmi's refusal of entry to her. Ms Barker had a cigarette in her hand and flicked it at Mr Singleton. It hit him on his shirt at chest height but he just brushed it off.
30. Ms Barker then put her hand down her shirt, between her breasts and pulled out a serrated steak knife and lunged it at Mr Fawehinmi and Mr Singleton. They both immediately backed off and ran back up the steps into the Club, calling on the receptionist to lock the doors.
31. Ms Barker then proceeded to pick up one of the bollards and, using it rather like a baseball bat, smashed it against a window that was to the right of the entrance to the Club. The glass, no doubt toughened glass, was cracked and some splinters came away on the inside, so fierce was the attack.
32. Ms Barker then cut the straps of another bollard, picked up the bollard, walked up a step or two and threw it at the door. It appears to have landed on the ground first and hit the front door, but without causing any damage.
33. Ms Barker then took a third bollard and, using it again like a baseball bat, smashed it against another window on the right of the front entrance. The glass in the window also cracked and shards splintered into the Club but the window did not shatter. I am satisfied that both windows were damaged within the meaning of s 403 of the Criminal Code.
34. Mr Fawehinmi and Mr Singleton decided to go out and try and disarm Ms Barker. As they left the inside of the Club, Mr Fawehinmi picked up a bollard and faced off against Ms Barker. Both stood their ground. Mr Singleton then went around the side of Ms Barker and, approaching her from behind, pinned her arms. Ms Barker thrashed about and brandished the knife which cut the webbing between Mr Singleton's thumb and forefinger. She was forced to the ground.
35. Mr Singleton held on to her wrist, however, and Mr Fawehinmi, who described her as "very strong" came over and helped to hold her wrist and try to contain her. They managed to release the knife from her grasp and it fell to the ground. Ms Barker started screaming about Australian courts, saying something like "Fuck the Australian court system, screw them" or similar.
36. The police had been called and officers came from Civic and Gungahlin. Constables Christopher Gresser and Lennard Bailey arrived in a caged vehicle which they had been driving in Dickson at the time. Statements made by them were tendered without objection.
37. They saw Mr Singleton and Mr Fawehinmi restraining Ms Barker, who was screaming and struggling at the time. They noticed the knife and Constable Bailey removed it from Ms Barker's reach.
38. The police officers attempted to pacify Ms Barker, but she continued to struggle. Eventually they managed to place handcuffs on her. At about this time, officers from Gungahlin arrived and assisted to arrest Ms Barker. Constable Gresser said to Ms Barker, "You're under arrest for assault." He then cautioned her and Ms Barker said, "Assault, is that all. I had a knife as well".
39. Constable Jodi Finn, who had arrived from Gungahlin Police Station, then searched Ms Barker and she was placed in the caged vehicle, still shouting about the weakness of the Australian justice system, and taken to the ACT Watch House where she was charged.
40. Mr Fawehinmi gave a more detailed description of Ms Barker's presentation. He said that, when she approached him initially, she seemed to be mumbling, talking to herself. As she came nearer, he could hear more clearly what she was saying and he described it as "a stream of vulgar words". He said she was talking in "a loud and intruding tone". Her comments, however, did not seem directed at anyone, they were just said "out to the air".
41. He thought that Ms Barker was "pretty wild". Indeed, he described her as "psychotic" but I understood that to be in a colloquial sense rather than in a strictly medical sense. He described his use of the term to mean that she was mentally sick, not mentally stable.
42. Mr Singleton said he did not hear the swearing that Mr Fawehinmi had heard, but he did say that she was screaming very loudly. He described her attack on the windows as "wild attacks" and said that she was struggling violently while he was trying to restrain her and also when the police arrived and were arresting her.
43. Constable Finn, the Informant, gave evidence and described Ms Barker as very aggressive, resisting police, kicking her legs and swearing at the top of her lungs. She said that there was a strong smell of alcohol on her. She later described Ms Barker as making "nonsensical threats".
44. When Ms Barker was taken back to the Watch House, Constable Finn became aware that Ms Barker was subject to a Psychiatric Treatment Order.
45. Photographs of the broken glass windows and the knife that she had obtained were tendered.
46. An affidavit of Ms Barker's lawyer was admitted by consent, though I was urged by the Crown to give little weight to some of the statements reported in it.
47. The affidavit was made because Ms Barker's mother, who had seen her some little time before the incident, had died on 17 April 2014. Under s 67(1) of the Evidence Act 2011 (ACT), notice was given of Ms Barker's intention to adduce the evidence under s 65(8)(a) of that Act.
48. The affidavit set out that a conference was held with Ms Barker's mother in counsel's chambers on 30 May 2013. Notes were taken of the conference and provided the basis for the account of the representations made by Ms Barker's mother of it.
49. That evidence was that Ms Barker had met with her mother on the day of the incident at the Dickson Tradies Club. Ms Barker's mother was, at the time, caring for Ms Barker's children and Ms Barker wished to see them.
50. Ms Barker's mother said that Ms Barker was "[n]ot herself"; she "wave[d] her arms and her eyes gave her away". Ms Barker asked to see her children but her mother refused telling her "you ... have not taking [sic] your medication". She asked her to leave and then rang the hospital telling them that Ms Barker was not on her medication and she did not want her near her home. She said that Ms Barker was angry and threw a cup at her. She said that because of her prior dealings, she knew that Ms Barker was not taking her medication.
51. An account for the repair of the windows in the sum of $4,580 was also admitted without objection.
52. Ms Barker has been diagnosed with bipolar affective disorder or schizo-affective disorder. She has been a consumer of mental health services in the ACT for a number of years.
53. From 28 February 2011 to 1 September 2011 and again from 27 April 2012 to 10 December 2013, Ms Nikki O'Dwyer, a psychologist employed by ACT Health, was her clinical manager with regular contact, including providing treatment and supervising her medication.
54. Ms O'Dwyer said of her relationship with Ms Barker, "we've always had a good relationship". She described Ms Barker when she was well and managed on medication as "a really lovely woman, she's very gentle, very friendly, quite meek, always ... willing to go along with what you have suggested ". Her affect at these times was flat, generally friendly, reactive, engaging. Her clothing would be bright and colourful and comfortable.
55. When Ms Barker was unwell, however, Ms O'Dwyer described her as "irritable, suspicious, erratic, ... impulsive ... more difficult to communicate with" and at times "aggressive" and "paranoid". Her affect was then guarded and suspicious. When unwell, her appearance was more dishevelled and she would wear dark clothing, including "hoodies".
56. Ms O'Dwyer described the stressors that led to Ms Barker decompensating into unwellness as including anything involving violence, such as when she witnessed it or was involved in it, issues with her husband or children and the use of alcohol, not necessarily to excess.
57. She said that Ms Barker could become unwell quite quickly, over a week or less.
58. In early 2012, Ms Barker was prescribed Seroquel, Risperidone and Lithium. It appears, however, that for about the first six months, she had not been taking the Seroquel because she said it prevented her from sleeping.
59. In late June 2012, she had made a posting on the social media site, Facebook, following her sister telling her that her son's puppy had been given away. She invited whoever had done that to meet her at the Ngunnawal shops to give the dog back. She then went there with a hockey stick, highly agitated, obviously intending to attack the person she suspected.
60. Just before this incident, she had experienced some significant stressors, being involved in a violent incident with her brother who had assaulted his partner and whom he injured.
61. While at the Ngunnawal shops, she was taken by the police to the Adult Mental Health Unit (AMHU) at The Canberra Hospital and admitted. She was, at the time, yelling loudly, making no sense, saying that she was a "dog fucker" and that she was "Chopper Read".
62. She was re-medicated, and her regime changed to depot injections.
63. Because of her satisfactory progress while in the AMHU, she was granted weekend leave on 8 July 2012. Ms O'Dwyer had recommended that leave as a transition to her discharge. She had visited Ms Barker in hospital a few days after her admission and noted that she was polite and friendly and showed some, though not complete, insight into her condition, some elevation in mood but hypomanic. With hindsight, however, she considers that the release on weekend leave was premature.
64. It was recorded in the notes of the AMHU that a "very agitated lady", who appears to have been Ms Barker's mother, called stating that Ms Barker "was not going well and that Kylie was going off her head, was yelling and swearing and throwing things around".
65. Ms Barker was returned to the AMHU on 9 July 2012 by police. While generally pleasant and polite, she did get upset at a taunt from a fellow resident. She reported some distressing Facebook messages with her sisters and an argument with her mother. She said she had gone to a pub in Civic and picked up a knife at the front door. She had drunk alcohol to intoxication and then went to the Dickson Tradies Club. At the AMHU, she was then medicated.
66. On 18 July 2012, she was discharged into police custody. She was returned to court and granted bail.
67. On 5 August 2012, however, she was re-admitted to the AMHU as she was threatening self-harm. She had been consuming drugs and alcohol and was disturbed, threatening to kill people who had "fucked her over". Although she said she had used drugs in breach of her bail conditions, that was not considered sufficient to arrest her for breach of bail conditions and so she was taken to the AMHU. She seemed to be subject to visual hallucinations with a significantly impaired judgment and insight.
68. On 14 August 2012, she was discharged though the discharge notes recorded
Risk of relapse and misadventure are high with use of alcohol or illicit substances.
69. She has, since then, not been readmitted to the AMHU.
70. On 3 January 2013, a Psychiatric Treatment Order was made in respect of her under s 36 of the Mental Health (Treatment and Care) Act 1994 (ACT); it was revoked on 13 June 201.
71. As noted above (at [18]), Ms Barker pleaded not guilty on ground of mental impairment. That matter is a circumstance where there is no criminal responsibility and is regulated by s 28 of the Criminal Code which relevantly provides:
28 Mental impairment and criminal responsibility
(1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that -
(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong; or
(c) the person could not control the conduct.
For subsection (1)(b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.
(3) The question whether a person was suffering from a mental impairment is a question of fact.
(4) A person is presumed not to have been suffering from a mental impairment.
(5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.
(6) The prosecution may rely on this section only if the court gives leave.
(7) If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must -
(a) for an offence dealt with before the Supreme Court - return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or
72. Section 28(1)(a) and (b) of the Criminal Code reproduces the common law as in the M'Naghten Rules (Daniel M'Naghten's Case ((1843) [1843] EngR 875; 10 Cl & Fin 200 at 210; 8 ER 718 at 722-3).
73. The effect set out in s 28(1)(b) has, however, been modified by s 28(2) which uses a different formulation, though it is one based on a formulation by Dixon J in R v Porter [1933] HCA 1; (1933) 55 CLR 182 at 190. See also Sodeman v The King [1936] HCA 75; (1930) 55 CLR 192 at 215.
74. Although it is said to have been used by trial judges to this day (Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Final Report, Chapter 2 General Principles of Criminal Responsibility (1993, Commonwealth of Australia), p 37 it does not seem to have been much explained or its boundaries discussed until incorporated into legislation.
75. Nevertheless, in Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 at 375, Dixon CJ, Webb and Kitto JJ stated that, in order for an accused to understand that their conduct was "wrong", for the purposes of establishing the defence of insanity (as the defence of mental impairment was then known), they had to have understood that it was wrong according to the ordinary principles of reasonable persons, rather than being wrong as contrary to law.
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. What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.
77. In R v White [2003] VSCA 174; (2003) 7 VR 442 at 451, Chernov JA, with whom Charles JA agreed, affirmed the remarks of the judge below that the expression "wrong" in s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to Plead) Act 1997 (Vic) (the equivalent of s 28(1)(b) and (2) of the Criminal Code) is
not directed to moral or legal concepts ... but to the accused's awareness that reasonable persons would disapprove as wrong the actions he is performing.
78. Nevertheless, this does not exclude considerations of legal or moral wrongness because as Redlich JA, with whom Coghlan JA and Dixon AJA agreed, said in Kosian v The Queen [2013] VSCA 357 at [67]
[i]t is customary for experts to analyse wrongness in legal and moral terms, because they are two of the criteria to which one will ordinarily have recourse when attempting to establish whether conduct is wrong.
79. It must, however, be remembered that an understanding of legal wrongness on the part of the accused will not, on its own, prevent the s 28 defence being made out.
80. As the High Court noted (at 375) in Stapleton v The Queen
The truth perhaps is that, from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong (his insane judgment even treating the act as one of inexorable obligation or inescapable necessity) he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.
81. In R v Balaban [1953] SASR 282 at 288, the Full Court of the Supreme Court of South Australia expressed the result of Stapleton v The Queen as requiring that
if the trial judge sees fit to explain to the jury the sense in what he is using the word 'wrong', the direction cannot stand if it leaves them to understand that the defence must prove that the prisoner did not know that his act was contrary to law.
82. See also R v McDermott (2003) 172 FCR 1 at 7; [32] where Higgins J applied this to the case before him, concluding
Of course, the accused did not reason calmly or logically about the moral dilemma he faced. Indeed, it seems to me that by reason of his mental illness he was unable to reason calmly about the moral quality of what he was doing. As a result, he did not know that what he was doing was morally wrong.
83. Ms Barker relied on s 28(1)(b) of the Criminal Code and I shall consider that in the context of these principles.
84. Mr M Reardon, Crown prosecutor, raised the issue of what "moderate" might mean in the context of s 28(2). It seems to me that it means what the dictionary says. Thus, in the JA Simpson and ESC Weiser, The Oxford English Dictionary (1989, Clarendon Press: Oxford) v 9, it is relevantly defined as "[o]f medium or middling quantity, quality, size or extent" and in the Macquarie Dictionary (2009, Macquarie Dictionary Publishers: Sydney) it is relevantly defined as "of medium quantity, extent, etc".
85. In my view, a moderate degree of sense and composure means something more than a basic degree and something less than a perfect degree.
86. Ms Barker also relied on s 28(1)(c) of the Criminal Code. That provision appeared in the Griffith Criminal Code and is still found in s 27 of the Criminal Code Act 1899 (Qld).
87. The notion of a person not in control of their conduct for this provision is to be distinguished from automatism because the latter is the reaction of a healthy mind while the latter is the reaction of a person suffering from an underlying mental infirmity or mental disease. See R v Falconer [1990] HCA 49; (1990) 171 CLR 30 at 44, 62, 85. Mason CJ, Brennan and McHugh JJ explained in that case (at 46-7) the background as follows:
There are two aspects of apparent difference between the M'Naghten Rules and the Code. The first relates to the cause of the insanity or unsoundness of mind. The M'Naghten Rules speak only of a "disease of the mind" while the Code's umbrella term of "unsound mind" comprehends mental disease, natural mental infirmity (s 27) and a mind disordered by intoxication or stupefaction (s 28). The second, and more significant difference, relates to the effects of these respective causes. The incapacities to which s 27 refers include the incapacity to control actions whereas the M'Naghten Rules speak only of such a defect of reason 'as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.' The explanation for the inclusion of the incapacity to control actions in s 27 is that it mirrors the provisions of s 23, as Sir Samuel Griffith explained in his notes to the Draft Code (1897), p 14:
An act to involve criminal responsibility must be voluntary, as distinguished from involuntary (s 23) - that is to say, it must be accompanied by volition. In order that an action may be accompanied by volition there must be in the first place perception, more or less accurate, of the facts, then a determination or choice of the action to be taken upon those facts, and finally the action. If the person in question is incapable from mental disorder of rightly perceiving the facts, he should be treated on the same footing as a man who in good faith misapprehends the facts (s 24). If he is for the same cause incapable of exercising the power of determination or choice, he should be treated on the same footing as a man who does an act independently of the exercise of his will (s 23).
(The section numbers are altered to reflect the numbering of the draft sections as enacted.) Under the Code, the practical difference in the operation of s 23 on the one hand and ss 26, 27 and 28 on the other depends on the aetiology of the condition which deprives the accused of the capacity to control his actions: if mental disease or natural mental infirmity (under s 27) or a disorder of the mind (under s 28) are proved to have deprived the accused of the capacity to control his actions, the verdict of acquittal must be qualified under s 653; if it be a reasonable hypothesis on the evidence that some other cause, by itself, deprived the accused of that capacity, the verdict is an absolute acquittal. The dichotomy between automatism caused by unsoundness of mind and automatism otherwise caused is reflected in the verdict to be returned.
88. There is not a great deal of jurisprudence on this particular effect of mental impairment. It appears that the mental impairment must deprive the accused of the capacity to control their actions: Wray v The King [1930] WALawRp 30; (1930) 33 WALR 67 at 69.
89. In R v Telford [2004] SASC 248; (2004) 89 SASR 352 at 363; [100]- [101], Perry J held that the words in the similar South Australian legislation (Criminal Law Consolidation Act 1935 (SA) s 269C) "unable to control"
must be taken to identify a state of mind in which the accused is unable to form and implement a decision either to gamble or not
The word "unable" admits of no qualification.
90. See also R v Milka [2010] SASC 250 at [76] do the same effect.
91. More recently, White J considered the matter in R v Cox [2006] SASC 188 at [24]- [27] where his Honour said
92. It seems to me that this is the approach that I should take to the question of whether Ms Barker has made out the defence of mental impairment. As is clear, the test of proof is on the balance of probabilities (s 28(5) of the Criminal Code).
93. The expert evidence about this issue came from Dr Danny Sullivan. He prepared a Report dated 23 December 2012 that was tendered.
94. In the Report, he set out his qualifications and experience as a Consultant Forensic Psychiatrist; no issue was taken with his expertise. He also identified the materials provided to him.
95. He set out Ms Barker's personal, medical, psychiatric and substance abuse history. I do not need to address them here. He also conducted a mental state examination of Ms Barker on 30 November 2012.
96. During that examination, Ms Barker told him that she had smoked cannabis and drunk vodka. She had met "some guy" in Civic, clearly the man who had accompanied her to the Club. She told Dr Sullivan that
she had been experiencing communications with the spirits which had told her that she needed to have a drink with a woman at the Tradies Club.
97. I note that there is no other reference to this psychotic experience. Indeed, Dr D Gunaratne, Psychiatrist who prepared a report for the Magistrates Court following an assessment ordered under s 309 of the Crimes Act 1900 (ACT) reported
On 09/07/2012 when Ms Barker presented from courts on s 309 she was highly distressed about the incident which led to police interventions. She identified this incident as a harmful effect of alcohol which led to misadventure. There were no delusions or hallucinations. There was no grandiosity in her mood. She agreed to stay in the ward for a period of observation.
98. She was also assessed at the AMHU where it was also reported that there were no delusions, no hallucinations and that she believed "alcohol and other stressors made her act irrationally". Both those statements about the absence of delusions or hallucinations were said by Dr Sullivan to refer to the time of her assessment by Dr Gunaratne and at the AMHU and not to the time of the incident. I am satisfied that this is so. See below (at [134]).
99. Dr Sullivan also had access to Ms Barker's criminal history, Dr Gunaratne's report and a psychiatric report of Dr Graham George. The latter, dated 9 November 2012, contained Dr George's opinion as follows:
Ms Barker suffers from a serious mental illness. She has limited insight into her illness. She has been non compliant with oral medication in the past. These two factors alone would necessitate that she remain on a Psychiatric Treatment Order over time. Her prognosis remains guarded.
100. Dr Sullivan also had access to the records of ACT Mental Health, her criminal record and the police Statement of Facts for the offences.
101. The police statement of facts referred to police observing, after Ms Barker, had been placed under arrest "her to be highly aggressive and making nonsensical threats and statements to Police and to security". It recorded, also, that she was "not interviewed due to her level of intoxication and her mental state at the time of her arrest".
102. Dr Sullivan noted these matters in his Report.
103. His opinion as to her condition at the time of the offence is set out in his Report as follows:
[46] At the time of the alleged offence she was clearly intoxicated and was on leave from hospital. The degree to which her behaviour was influenced by psychosis is difficult to determine. There is no other evidence of her ever carrying a weapon and this would suggest that she was at the time psychotic in addition to being intoxicated. Intoxication is clearly the disinhibiting factor which has unleashed her aggression but the underlying basis of it would appear to be associated with mental illness. Furthermore her propensity to alcohol use appears intimately associated with her affective disorder.
[47] Ms Barker has an established diagnosis of schizoaffective disorder/bipolar affective disorder. This is a mental illness as set out in s 27 of the Criminal Code 2002 and would also satisfy the definition of a mental impairment.
[48] It is difficult to separate out her mental illness and intoxication. Ms Higgins has noted that Ms Barker is more prone to intoxication when mentally ill, and that her relapses are often accompanied by intoxication.
[49] At the time of the alleged offences it appears that Ms Barker was intoxicated and had only been recommenced on appropriate treatment for a relapse of schizoaffective disorder/bipolar affective disorder in the ten days before the alleged offences. I consider that on the balance of probabilities, Ms Barker was mentally impaired at the time of the alleged offences. Although more prominent psychotic symptoms had attenuated, it appears that poor judgment, liability of mood and irritability - features of her bipolar affective disorder - had not yet responded to treatment. These features appear intimately and causally associated to her binge alcohol use.
[50] Having considered the criteria at s 28 of the Criminal Code, I consider that when engaging in the conduct which forms the basis of these charges, Ms Barker knew the nature and quality of the conduct, but could not control the conduct, and could not reason about its wrongfulness with a moderate degree of sense and composure. The basis of her mental impairment is an underlying bipolar affective disorder/schizoaffective disorder and a relapse of this which had not fully responded to treatment; and her self-control and judgment were further affected by intoxication (although this is also causally associated with the underlying mental illness).
104. Dr Sullivan was called and, by direction under s 32 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), gave evidence by telephone from Melbourne. As appropriate, he was cross-examined extensively.
105. His curriculum vitae was tendered. It showed that he was duly qualified and had practised as a psychiatrist in correctional settings and as a forensic psychiatrist for most of the past fourteen years.
106. He was asked about the differential diagnosis where mental illness and intoxication are involved and noted that, where issues of causation are involved, it is necessary to "spend much time" trying to work out which was the primary diagnosis and which was the secondary diagnosis; which cause precipitates or triggers a relapse of the other. Collateral information from relatives is useful for diagnosis.
107. He stated that the hallmark feature of bipolar affective disorder is a manic episode which then results in all episodes of mood disorder thereafter, either mania, hypo mania or depression being attributed to the underlying bipolar affective disorder, a relapsing and remitting illness. Relapse may be triggered by situations such as intoxication, sleep deprivation, stress, and seasonal change. A manic episode is a change in behaviour and energy levels accompanied on occasion by irritability, aggressiveness, volatile mood changes, less sleep, change in appetite, greater sexual disinhibition, louder and faster talking and delusions of grandiosity. People suffering a manic episode are insightless. There can be delusions or hallucinations associated with bipolar affective disorder, but they are generally mood congruent.
108. As to schizo-affective disorder, he stated that it includes a mixture of both mood symptoms and psychotic symptoms which vary over time. It is also associated with impaired reasoning.
109. He said that manic episodes are most associated with disordered judgement and impaired insight, though often such episodes are of a fairly short period of onset before the person is hospitalised.
110. There was, in the proceedings, no real issue that Ms Barker was correctly diagnosed as suffering from a bipolar affective disorder or schizo-affective disorder.
111. He stated that on 29 June 2012, Ms Barker clearly was having a relapse where, from her baseline of behaviour, she was deteriorating to mania or psychosis. This, he pointed out, did not happen in the space of minutes or hours. While she was in hospital, she continued the relapse which could last for weeks or months after the particular episode had finished.
112. On 8 July 2012, he accepted, as I accept on the evidence, that Ms Barker was intoxicated. This was, Dr Sullivan felt, a marker of a relapse, though it was difficult to determine whether the relapse caused the drinking to intoxication or the other way round. It was relevant that ten days earlier she had been hospitalised as a result of a manic episode which would have been dampened by treatment but not dissipated. The symptoms, he considered, were also unusual for mere intoxication, including, for example, the nonsensical statements.
113. Dr Sullivan also contrasted intoxicated behaviour from that consequent upon mental impairment. For example, an intoxicated person will rant but more slowly than persons suffering a manic episode, they rant to people in their vicinity rather than generally and they rant about things happening in their life. Thus, he considered that the fact that Ms Barker was, as described by Mr Fawehinmi, ranting to herself or "into the air" about the Queen to be symptomatic of mania.
114. He also relied on the use of the weapon as an indication where, based on self-report and the materials he had been given, including her prior criminal record, there was no history of her using weapons, although in her earlier manic episode she had been carrying a hockey stick to use as a weapon.
115. He did rely on the spirit-induced motivation to attend the Club for a drink with an unnamed and unidentified woman.
116. He felt that the "prodigious strength" and insensibility to pain she displayed was consistent with mere intoxication or with mental illness. He considered, however, that the degree of violence and drive to aggression was irrational.
117. He considered also that the history was important, that Ms Barker had been hospitalised shortly before the incident.
118. He also considered the relevance of stressors which he said were "an important precipitant to relapses or to further episodes". He was taken to the fact that she had had a depot injection on 2 July but pointed out that the drug she was taking, Paliperidone, requires the first two injections to be taken a week apart and the third a month later and further injections at monthly intervals. Thus, in this case, he opined that it could not be concluded that the medication had really taken effect until sometime in early August.
119. He considered, too, that the confrontation with her mother after her release on weekend leave would have an impact leading to her further decompensating. Conflict in families is, he said, a common cause of relapse.
120. Dr Sullivan was taken to the evidence of Ms O'Dwyer who saw Ms Barker on 12 July 2012, two days after her second depot injection and described her as very unwell. She had said she was quite angry, very suspicious, very paranoid, illogical, making accusations of Ms O'Dwyer being complicit in the removal of her children, which was not only untrue but which she had never done before and was unusual. She was dressed in dark clothing and quite labile. Dr Sullivan said that this would be consistent with his diagnosis, showing that the episode had not resolved.
121. He was taken to his opinion, set out above (at [103]) and confirmed it. He considered that Ms Barker would know the nature and quality of her act.
122. As to her capacity to control her actions, he considered that she was not completely unable to control her conduct, but that her control of her conduct was impaired.
123. As to the ability to reason with a moderate degree of sense and composure about her conduct, he said
In terms of reasoning about the wrongfulness of the conduct once more, in many cases people will have a preserved basic sense of the wrongfulness of conduct but the reasoning process for a person affected by mental illness is markedly different. In this case, I was struck by the fact that during the course of treatment for a manic or psychotic episode that she retained impaired judgment, markedly labile mode and aggression which was incompatible with her normal persona, and significant irritability and hostility to other people, and I think that was associated with this particular episode more so than simple intoxication alone.
124. Given the criticality of his evidence, Dr Sullivan was cross-examined at some length. It is not necessary to set that out in full.
125. He was asked about his method of examination and agreed that he treated assertions by an examinee with some degree of scepticism. He also acknowledged that he had not treated Ms Barker, on whose candour memory and insight into her illness he was, to a large degree, reliant. He had, of course, access to her medical records and discussions with Ms O'Dwyer, a treating clinician of Ms Barker.
126. Dr Sullivan said that Ms Barker understood that he was examining her in the context of her criminal charges but that she did not express any particular anxiety about them. She was not at the time experiencing current delusions and acknowledged her diagnosis.
127. He concluded from his examination that there were no signs of unstable mental health or features that she was unwell at the time of examination.
128. For the examination he perused her medical records to gain an idea of the "donours" on which he had specifically to concentrate in the interview with her.
130. He accepted that there was an overlap in symptoms for intoxication and mental illness and that Ms Barker had a criminal history recording offences which have resulted from intoxication.
131. He acknowledged that on 8 July 2012, Ms Barker had experienced a number of emotional stressors, but agreed that they were not necessarily pathological. He said that, because people suffering from intoxication or an episode of mental illness often have an impaired recall of what happened, he relied to the degree possible on collateral sources of information.
132. He was referred to the reported Facebook posting by Ms Barker's sister and that there could have been some value in seeing that, but he had not done so.
133. He rejected the suggestion that, if the claimed association between Ms Barker being unwell and alcohol consumption was not well founded, he should change his opinion as he noted that this was not the sole basis for his opinion, though, it would influence it. He said that, in any event, he was sceptical of the self-report of people as to the estimates of consumption. He agreed with the suggestion that there was no independent verification of Ms Barker's drinking. He considered that Ms Barker was no more or less unreliable as to her drinking habits than anyone else.
134. Dr Sullivan was asked about Dr Gunaratne's report where he found no evidence of psychosis and said that, as he read the Report, he was reporting there were no psychiatric symptoms at the time of the examination, which, he said, did not mean that Ms Barker was not still suffering the effects of a psychotic episode. Thus, Dr Gunaratne's findings were not unusual.
135. It was then suggested that the absence of a finding that Ms Barker heard voices or spirits during the incident at the Club would reduce the likelihood that she could be said to have experienced psychotic symptoms and he agreed but pointed out that the absence of a particular symptom was not determinative; it was a matter of taking into account the overall context, the symptoms that are described and the pattern of behaviour.
136. He added that there was a problem in trying to define symptoms as manic or psychotic; there were usually a mixture of such symptoms.
137. He agreed that to determine whether a patient is experiencing symptoms of an illness, thought patterns and insight into her illness would be important; whether her mood was appropriate for the situation would also be relevant. He considered a lack of any threats or harm to the patient or others would be significant, too.
138. Dr Sullivan's attention was drawn to the record of a mental health worker who spoke to Ms Barker about twenty minutes prior to the incident at the Club. The record was as follows:
The author spoke with the consumer on her mobile phone at 2250. It was difficult to understand what she was saying due to background noise (she stated she was at King O'malleys pub in the city). She appeared upset during the phone call, she stated that she was concerned for the welfare of her children as she did not trust her mother who is currently caring for them. She stated that the children were not in her care because her mother thought she was 'mad'. She did acknowledge that she had 'bipolar' however she continued to reiterate that she loves her children and wants to be a mother to them.
I asked if she was ok and whether she should return to the hospital as she appeared upset. She stated 'No I'm with friends right now and I'm safe, a prenominate Aboriginal elder has died and we are in mourning. I'm with with the some elders right now and I have to be on my best behaviour out of respect for them'.
139. He agreed that this was relevant but denied that it was "highly relevant", he pointed out that what was important was the "holistic picture rather than sort of individual elements". It was, he said, negatives rather than positives that were especially relevant; thus he would draw more from whether the person was disoriented than that they were oriented. Someone who is oriented can be found to be mentally well or unwell. Her acknowledgement in the call that she was "bipolar" showed a degree of insight and her reference to her friends showed an awareness of that situation, but whether she understood her obligations following the death of the elder was less clear, though a basic understanding of least could be inferred. He agreed, too, that appropriate responses to the questions of the mental health worker would help to inform his opinion as to whether she was symptomatic.
140. He described his approach to the diagnosis as follows:
My approach to this, your Honour, is always to satisfy myself that the diagnosis that is made is supported by a sufficient factual basis that I can accept, and I was satisfied that there was, firstly a longitudinal history consistent with that, and, secondly, that the presentation around the time of the offence was consistent with an episode of that illness.
141. In relation to the question of whether her conduct was the product of her intoxication or of her mental illness, he said
... I believed that at the time there were discernible features of both evident but in the presence of marked intoxication, it becomes far more difficult to parse out the specific elements which are related to a bipolar or a psychotic episode with those diagnoses so at the time I wouldn't infer necessarily from any one aspect of her behaviour that it was attributable to only one or the other and taking into account that underlying assumption that intoxication itself is not simply a hallmark of mania in this woman, taking that into account, it's not the specific features of her behaviour alone on the night which led to my conclusion. It's also the context of where she is situated in the longitudinal trajectory of treatment of an episode of relapse of mental ill-health.
142. As a result, he concluded that there was a causal connection between Ms Barker's underlying mental illness and her conduct during the incident. He agreed that it was not the case that she was completely unable to control her conduct, but that her control of her conduct was impaired.
143. His attention was also drawn to the reference in the Statement of Facts to Ms Barker making "nonsensical threats and statements" and agreed that whether something was nonsensical could be explained by the context, but he pointed out that the use of "nonsensical" was a lay term and so would be different from the use of it by a clinician.
144. His attention was then turned to his conclusion that Ms Barker could not reason with a moderate degree of sense and composure. He said that he had not discussed with her the differences between a moral or legal sense of wrongness. He referred to the common report that people will say that they appreciate something is wrong in the eyes of other people but they feel compelled to do it for reasons related to their mental disorder. There was no evidence of this in the incident involving Ms Barker.
145. He denied that the fact that the next day Ms Barker expressed remorse or regret for her actions required him to change his view about whether Ms Barker could reason between right and wrong. He said that psychiatrists see people who regret their behaviour but are, at the time of the behaviour, unable to reason about it. It was, he agreed, more important to take account of an acknowledgement of consequences at the time.
146. He agreed that his opinion meant that Ms Barker could reason with sense and composure to some degree.
147. He was then asked whether an expressed understanding of the likely legal consequences of actions are an indication of whether the conduct might be seen as wrong and he said that it means that they may have a basic intellectual understanding.
148. Dr Sullivan's attention was drawn to Ms Barker's statements while being held by the police, "They will let me go, the courts", "The courts are useless" and "I couldn't care less, really" and said that while it indicates an understanding of the consequences of her conduct, it is consistent with the behaviour of someone who, when manic, is incapable of exercising sound judgement about reasoning about those consequences. He felt that it did not indicate that she understood what a reasonable person may think, but he agreed that it could show that her mania had not affected her to the extent that they are unable to tell whether a reasonable person would view that the conduct was wrong. He agreed that being able to think about the gravity of one's offending implies the capacity at least to reason about why it was that something may be wrong.
149. He was also taken to the exchange when Ms Barker was arrested and told that it was for assault. She replied "Assault, is that all? I had a knife as well." He agreed that it meant she was actually aware of how other people might see whether her conduct was serous or more serious than what she had been alleged to have done, but that it also indicated a deficiency in reasons and a significantly impaired judgement as a person with a normal reasoning capacity would not make matters worse by pointing out that they had a weapon, that they would be unlikely to quibble over the gradations of seriousness and would not be so belligerent in the context. Thus, he saw these statements as indicative of a level of intoxication or more.
150. He said that his opinion was based on the fact that her judgement was impaired, which impaired her reasoning about the wrongfulness of the conduct.
151. There was no issue between Crown and accused that the physical elements for the offences had been made out. The only issue was whether the defence of mental impairment available under s 28 of the Criminal Code had been satisfied.
152. Mr Hopkins submitted that I should be satisfied that the defence of mental impairment had been made out, principally on the list in s 28(1)(b) of the Criminal Code, but he did not concede that s 28(1)(c) was not made out.
153. The defence was made out not only on the basis of the expert evidence but also the lay observations of those at the scene of the incident and shortly after.
154. He submitted that s 28(4) placed an onus on the defence to make out the ground of mental impairment on the balance of probabilities, but submitted that it did not impose that burden on the defence so far as the effect that the mental impairment had as specified in s 28(1).
155. Mr Hopkins referred me to R v Morrison [2006] SASC 344. Similarly to what had been pointed out by Dr Sullivan, Duggan J said in that case (at [79])
It is clear from the psychiatric evidence that the history, both before and after the incident, must be taken into account in determining the cause of the psychotic behaviour.
156. What was in issue in that case was whether the inability to reason about the wrongness of the accused's acts with a moderate degree of sense and composure was caused by the underlying mental illness or by the methylamphetamine that the accused had taken. Duggan J continued (at [81]):
I accept that it is important to keep in mind the question of whether the taking of the drug enlivened an underlying mental illness. However, the crucial evidence in examining this causative issue is the steady and relatively rapid recession of the psychotic symptoms as the effects of the drug wore off. The significance of this consideration as an aid to diagnosis emerged strongly from the evidence.
157. In that case, however, the court had the opinions of four psychiatrists, with some difference of opinions between them.
158. I do not consider that the decision is of great assistance to me in this case.
159. Mr Hopkins placed weight on the opinion of Dr Sullivan and the fact that, despite the lengthy and detailed cross-examination, he did not resile from his opinion.
160. Mr Reardon contended that there was no causal connection between the conduct and the mental impairment, although he conceded that in the light of the evidence, it was open to the court to find such a connection.
161. I am not convinced that s 28 of the Criminal Code requires a connection of the kind that the Crown suggested. That is to say, the acts carried out by the person may not be caused by the mental impairment as, for example, where a person's delusion leads them incorrectly to perceive a threat causing them quite unjustifiably to kill another. There has to be a connection, of course, in that the person may simply, by reason of mental impairment, not appreciate that, say, an act of indecency that he or she commits on a child is wrong; the mental impairment has not caused the conduct but the lack of knowledge that it is wrong has meant that the person has not refrained from acting in that way.
162. As to the defence under s 28(1)(b) of the Criminal Code. He submitted that there were a number of matters that would cause me to reject or, at least, have a substantial doubt about Dr Sullivan's opinion. They were
• the telephone call to a mental health worker about twenty minutes prior to the incident in which Ms Barker showed insight and awareness of social obligations referred to above (at [138]);
• Ms Barker's comments about the judicial system and her perception of the consequences of her actions, that she would be "let go", referred to above (at [35]);
• Ms Barker's reference, when arrested for assault, to the fact that she was also carrying a knife, above (at [38]).
163. Mr Reardon submitted that the evidence that Ms Barker was making nonsensical comments could not be accepted as there was no evidence of context to those comments which may render them not nonsensical in actual fact.
164. Mr Reardon was also critical of Dr Sullivan's hesitation in making reference to the fact that the test in s 28(2) of the Criminal Code referred to the reasoning being about "whether the conduct, as seen by a reasonable person, is wrong", in particular that Dr Sullivan thought that the person may not consider, when identifying the consequences of their actions, the test of what a reasonable person would think. He accepted that the statements by Ms Barker expressed a subjective appreciation of the issue, but influenced by her intoxication and mania. He accepted, however, that Ms Barker's statements could possibly be evidence that her reasoning was not so affected as to be unable to tell whether a reasonable person would view her conduct as wrong.
165. Mr Reardon further submitted, however, that Ms Barker's statements were suggestive of deficient reasoning because of the belligerence of her statements and which may be seen as implicating her more seriously. Mr Reardon submitted that such admissions contrary to interest were matters that were not only made by people suffering a mental impairment but also those who were perfectly rational.
166. Mr Reardon also submitted that the statements were "contextually sound" as Ms Barker would see Mr Fawehinmi as being a person who would have some role in a prosecution for the offences which Ms Barker had committed.
167. Mr Reardon also submitted that, as with s 28(1)(c) of the Criminal Code, it was necessary to read s 28(1)(b) and (2) to mean a loss of control of the reasoning capacity.
168. The evidence of an expert is, of course, to be approached in the same was as the evidence of other witnesses, which is able to be accepted or rejected; the trier of fact, not the expert, is to determine the issues. Indeed, a court is not required to decide a case in conformity with expert evidence, even when uncontradicted. See Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 at 645.
169. In the case of mental impairment, the court is required to consider not just the evidence of the expert or experts on the issues, but all of the circumstances of the case. This will include the evidence of the actual commission of the alleged offence or offences, the behaviour of the accused, both before and after the alleged conduct said to constitute the offences and, importantly, any history of mental illness. Those matters may lead the court to reject the expert evidence and quite properly to do so.
170. That entitlement to reject the evidence is, however, subject to an important qualification. As Professor Smith accurately summarised the position in his commentary on Walton v R [1978] AC 288 in [1977] Crim LR 747 at 748
If the medical evidence is all one way and in favour of the accused and there is nothing in the facts and surrounding circumstances which could lead to a contrary conclusion, then a verdict against the medical evidence cannot be sustained.
171. Thus, the court may not capriciously disregard the expert evidence and should accept it unless there are facts which entitle it to reject or differ from the opinion of the expert or experts.
172. Indeed, as in R v Matheson [1958] 1 WLR 474, the failure to act in a criminal case on uncontradicted expert evidence may lead to the setting aside of the verdict. As Connor and Franki JJ said in Taylor v The Queen (1978) 22 ALR 599 at 618, a court may not reject unanimous medical evidence "unless there is other evidence which can displace or throw doubt on that evidence".
Where the fact in issue was the state and capacity of mind and the only evidence thereof is expert opinion, the jury should understand that where the competence and honesty of the expert are accepted his skill in the area should be respected and should only be rejected for good reason. But if the jury are under the impression that on the relevant issue they must look at the 'facts' given in evidence other than by the experts as the source or primary source of proof of insanity, and that they are not bound by the opinions and are free to make up their own mind contrary to those opinions, then it is hard to think that they would be performing their task according to law. And it appears to me that there was great danger that the impression of the jury would have been that referred to above. If so, that would explain the verdict which it is reasonable to think was quite unexpected.
174. In the case of mental impairment, however, there is an additional issue that must be borne in mind. The court must take into account that, were it to attribute to the accused the kind of reasoning that a person without a mental impairment may use, it may fail to appreciate the significance of the expert evidence. See, for example, Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659 at 664-5.
175. As Smith J said in R v Weise [1969] VicRp 117; [1969] VR 953 at 972
Putting the issue to the jury with this heavy emphasis upon their right, and duty, to act upon their own opinions if these differed from those of the experts given in the witness-box involved, in my view, a substantial risk that the jury would be led to overlook the fact that the experts had said that the history of the appellant's acts and words contained nothing inconsistent with their conclusion that he was legally insane; and to overlook, also, the consideration that, if the jury were to act upon their own opinions, based upon that history, they would be rejecting or ignoring that part of the experts' evidence, and would be acting upon their own laymen's views as to how the minds of insane persons work.
176. As the unanimous High Court said in Mizzi v The Queen at 663
The reasoning upon which the cross-examination was based was, of course, the kind of reasoning which a sane mind would pursue, while it is apparent from a reading of the transcript of the evidence that the reasoning of the witnesses was based on the belief or assumption which they adopted that the prisoner's mind was not a sane mind and accordingly would be governed by quite different beliefs and perceptions, and a different consciousness and understanding of the things that would be significant to the sane. In cases of this kind it may well happen that expert witnesses accepting the hypothesis that a prisoner is insane are not on the same ground as counsel adopting the opposite hypothesis and arguing according to the common sense of ordinary men supplied by the experience of sane persons.
177. I will approach the evidence in accordance with these authorities.
178. I have given careful and anxious consideration to the opinion of Dr Sullivan and the issues raised by the Crown.
179. There was little put to Dr Sullivan in cross-examination that he had not known. That is to say, there were few facts which he had not taken into account in coming to his decision.
180. The facts of which he was not aware were the comments made by Ms Barker when being arrested. Dr Sullivan had, however, reasons why they did not constitute contrary evidence to his opinion.
181. One of those reasons was the fact that Ms Barker, to Dr Sullivan's colloquialism, "wouldn't dig the hole deeper by pointing out that [she] had a weapon". Mr Reardon pointed out, quite correctly, that rational persons do make admissions contrary to interest. By itself, such an admission as an admission against interest cannot be an indicator of mental impairment.
182. That, however, is to reverse the test. That rational persons make admissions against interest does not mean that all those who make such admissions are rational.
183. That is to say, I did not hear Dr Sullivan say that this was proof of Ms Barker's mental impairment, but rather that it was consistent with it.
184. Further, the factors on which he relied were more than the simple fact of an admission against interest. Thus, for example, it is not immediately obvious that a rational person, when arrested, will make such an admission. Thus, the precise circumstances in which the admission is made are of importance. In addition, Dr Sullivan relied on the context and the manner in which Ms Barker said what she said, where the "degree of verbal aggression and statements about the matter ... were indicative of ... either a level of intoxication and/or of mania which was sufficient to impair her judgement at the time".
185. Dr Sullivan was also satisfied that the fact that Ms Barker had twenty minutes earlier been able to have some capacity to appreciate social obligations was not inconsistent with a manic episode.
186. Mr Reardon's submission about the statements described as "nonsensical" must also be rejected. It may be accepted that some unstated context may render the statements about the Queen, for example, not nonsensical. The taxi may have had a radio which was on and there may have been some reference to the Queen which upset Ms Barker so that, when she got out of the taxi she was still upset about that.
187. This is, of course, entire speculation. It also fails to recognise that the opinion of her ranting as nonsensical was really directed to the period after her arrest when Constable Finn expressed that view. At that stage, it seems unlikely that any speculative context could render nonsense into sense. In addition, Constable Finn would have been aware of any such context and thus, her opinion was, in a sense, a validation of the absence of any context that would have this effect.
188. This behaviour is part of the longitudinal history of the incident, namely Ms Barker's conduct after the incident which is clearly relevant for a determination of how her mental state must be assessed.
189. Mr Reardon also relied upon Ms Barker's comments about the judicial system. Given the frequency of mentally impaired persons coming into contact with the criminal justice system, it is not surprising that she may be well aware of the system and the likelihood that she would be caught up into it. It seems to me, however, that this is not a recognition by Ms Barker of the wrongfulness of the conduct. Indeed, the fact that she was dismissive of what might happen to her in the system may well be an indication in itself of her view of her conduct.
190. Finally, Dr Sullivan's response to the reference, in the statutory test, to consider whether the reasoning would allow for the view of the reasonable person does not seem to me to undermine his opinion. He was considering the capacity of Ms Barker to reason with a moderate degree of sense and composure. Indeed, he accepted that the reasoning was directed to the relevant question, namely whether her conduct was wrong. On the authorities, that is an approach that is accepted. If Ms Barker did not, as Dr Sullivan opined, reach that degree, it seems to me that a fortiori, she would not meet the statutory test.
191. It seems to me that the factual basis for Dr Sullivan's Report has been satisfactorily proved and that his reasoning has adequately been exposed and appears to me to be credible and reliable. This is especially relevant to note that I must be careful not to assume that I can assess the evidence of Ms Barker, who was prior to and after the incident, clearly unwell as if she were necessarily behaving as a rational person and take Dr Sullivan's opinion on her behaviour and thinking carefully into account.
192. Dr Sullivan's opinion was that Ms Barker's capacity to control her actions was improved but only partially. It is clear from my analysis of this provision and the relevant authorities, that this is not sufficient to find a defence of mental impairment under s 28(1)(c) of the Criminal Code. I reject that defence.
193. So far as Dr Sullivan's opinion that Ms Barker was unable to reason with a moderate degree of sense and composure (s 28(1)(b) and (2) of the Criminal Code) as to the wrongfulness of her conduct is, in my view, established on the balance of probabilities. For this purpose, I have had consideration to the whole of the evidence. That he eschewed the reference to a reasonable person does not, in my view, invalidates his opinion.
194. Accordingly, having carefully considered all the evidence and evaluated Dr Sullivan's report and the evidence he gave orally, I am satisfied on the balance of probabilities that Ms Barker had a mental impairment as provided for in s 28 of the Criminal Code.
195. This requires me to enter a special verdict under Div 13.3 of the Crimes Act 1900 (ACT). I shall hear the parties as to the disposition under s 324 of that Act.
I certify that the preceding one hundred and ninety-five (195) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Solicitor for the Crown: ACT Director of Public Prosecutions
Solicitor for the defendant: Legal Aid ACT
R
Barker [2014] ACTSC 153
(1998) 197 CLR 250
(1960) 105 CLR 659
(1961) 108 CLR 642
(1985) 156 CLR 464
(1990) 171 CLR 30
(2003) 172 FCR 1
(1933) 55 CLR 182
(2004) 89 SASR 352
(2003) 7 VR 442
(1930) 55 CLR 192
(1952) 86 CLR 358
(1978) 22 ALR 599
(1985) 42 SASR 266
(1975) 13 SASR 84