R v O'Brien [2013] ACTSC 42

1. The offences allegedly committed on 21 August 2011 are these.
   1. possessing prohibited weapons, namely two throwing knives, when not authorised by permit or otherwise to do so, contrary to section 5(1) of the Prohibited Weapons Act 1996 (ACT);
   2. dishonestly riding in a motor vehicle, namely Daewoo hatchback registered number New South Wales XXX-XX0, owned by Ms Lisa Kendrigan, taken by someone without the consent of Ms Kendrigan, contrary to section 318(2) of the Criminal Code 2002; and
   3. intentionally or recklessly causing damage to the metal screen door and the frame of the wooden entrance door at Unit XX, Block XX, Bega Court in Kogarah Lane, Reid, belonging to ACT Housing, contrary to section 403 (1) of the Criminal Code 2002.

These are the offences referred to in the third indictment dated 16 May 2012 (SCC 10D/2012).

1. The offences allegedly committed on 23 August 2011 are these.
   1. intentionally or recklessly causing damage to a motor vehicle, namely Ford Festiva sedan, contrary to section 403(1) of the Criminal Code 2002;
   2. engaging in conduct that contravened the protection order made under the Domestic Violence and Protection Orders Act 2008 (ACT), contrary to section 90(2) of that Act; and
   3. intentionally or recklessly causing damage to the letterbox at XX Karri Street, O'Connor, owned by Ms Annette Rawson, contrary to section 403(1) of the Criminal Code 2002.

These are the offences referred to in the second indictment dated 16 May 2012 (SCC 10C/2012).

1. On 18 January 2012 the accused appeared before a magistrate in the ACT Magistrates Court for a case management hearing in relation to the charges for the various offences and, as he had earlier pleaded not guilty to the various charges, he was committed to this court to stand his trial in relation to those charges.
2. On 22 August 2012 the accused filed a Notice of Election pursuant to section 68B of the Supreme Court Act 1933 (ACT) to be tried by a judge without a jury in relation to each set of charges. I am satisfied that the accused's solicitor advised the accused as to the effect of electing to be tried by a judge without a jury.
3. On 9 February 2012 the accused's trial was listed before his Honour Refshauge J on a directions hearing. His Honour noted being told by the accused's counsel that "significant issues of mental impairment will be raised".
4. On 12 July 2012 the accused's trial was again listed before his Honour Refshauge J on a directions hearing. On this occasion the accused's solicitor filed in court the accused's pre-trial questionnaire in which, in answer the question 15, "Which, if any, of the following defences will be raised - (c) Mental impairment?", the accused's solicitor answered, "Yes." His Honour noted being told by the accused's solicitor that the "Primary issue is defence of mental impairment."
5. On 20 September 2012 the accused's trial was again listed before his Honour Refshauge J on a directions hearing. On this occasion his Honour noted being told by the accused's solicitor that "the mental health issue is mental impairment, not fitness to plead" and that "two days of hearing time may be required for the mental impairment issue".
6. On 26 October 2012 the accused's trial was listed before his Honour Refshauge J for callover for a date for trial to be fixed. His Honour fixed the trial for 19 and 20 February 2013.
7. On 14 February 2013 the accused's trial was listed before me on a directions hearing. This hearing was requested by the Crown prosecutor to ascertain whether the accused admitted the facts relied upon by the Crown to prove the accused's commission of the various offences. The accused's counsel consented to the Crown prosecutor handing to me the statements of the various witnesses upon whom the Crown relied to prove the accused's commission of the subject offences.
8. Accordingly, on 19 February 2013 the accused appeared before me on his trial. On his being arraigned with each of the various offences he pleaded not guilty. I noted that he had elected to be tried by me without a jury and that I had the statements of the various Crown witnesses. At this point the accused's counsel submitted that the accused did not have a case to answer in relation to two of the charges.
9. Firstly, the accused's counsel submitted that, in relation to count 2 on the indictment related to the offences allegedly committed on 23 August 2011, that is, the offence of contravening a protection order (see paragraph 6 above), the Crown had not proved that the accused had been served with the order.
10. Secondly, the accused's counsel submitted that, in relation to count 3 of the indictment related to the offences allegedly committed on 21 August 2011, that is, the offence of dishonestly riding in a motor vehicle taken by someone without the consent of the owner (see paragraph 5 above), the Crown had not proved that the accused had acted dishonestly in riding in that vehicle.
11. As to the accused's counsel's submissions, I commented, in effect, that it appeared to me from what was noted by His Honour Refshauge J that the only issue in the trial was whether the accused had a mental impairment at the times of his doing the things that he had allegedly done.
12. However, as to the accused's counsel's submissions,
    1. in relation to lack of proof that the protection order had been served on the accused, I allowed the Crown prosecutor to reopen the Crown's case and I received the statement of Constable Hulbert (see Exhibit M) as to service of the order upon the accused on 8 August 2011; and
    2. in relation to lack of proof that the accused had acted dishonestly in riding in a motor vehicle taken without the consent of the owner, I concluded that, as the evidence proved that the motor vehicle was not owned by the accused and that he had driven the motor vehicle, the accused had acted dishonestly in riding in, that is, driving, that motor vehicle.
13. The Crown's case is contained within the following exhibits:
    1. Exhibit A: Statement of John Anthony Dillon 06 July 2011
    2. Exhibit B: Statement of John Anthony Dillon 28 July 2011
    3. Exhibit C: Statement of Darren Andrew FitzRoy 02 December 2011
    4. Exhibit D: Statement of Tobias Seldon 20 December 2011
    5. Exhibit E: Statement of Robert Heath Langlands 05 December 2011
    6. Exhibit F: Statement of Kendelle Treloar 09 December 2011
    7. Exhibit G: Statement of Kenneth Charles Williams 09 December 2011
    8. Exhibit H: Statement of Omar Malcolm Ramsden 15 December 2011
    9. Exhibit J: Statement of XX 23 August 2011
    10. Exhibit K: Statement of Annette Rawson 23 August 2011
    11. Exhibit L: Statement of Lennard Bailey 01 December 2011
    12. Exhibit M: Statement of Peter Lee Hulbert 03 April 2012
    13. Exhibit N: Statement of Mark Battye 16 December 2011
    14. Exhibit O: Statement of Shaun Pine 01 December 2011
    15. Exhibit P: Statement of Lisa Marie Kendrigan 21 August 2011
    16. Exhibit Q: Statement of Lauren Ellerton 21 August 2011
    17. Exhibit R: Statement of Kym Johnson 21 August 2011
    18. Exhibit S: Statement of Rogello Palomar 21 August 2011
    19. Exhibit T: Statement of Robert Heath Langlands 05 January 2012
    20. Exhibit U: Statement of Brett Allan Booth 22 December 2011
    21. Exhibit V: Evidentiary certificate issued 15 December 2011 pursuant to section 17(a) of the Prohibited Weapons Act 1996 of a search of the register of weapons
    22. Exhibit W: Crime Scene Examination Continuity Report 21 August 2011
    23. Exhibit X: Statement of Renee Debbie-Maree Wilson 07 December 2011
14. The accused's case is contained within
    1. his evidence, and
    2. the report (Exhibit 1) and the evidence of Dr Stephen Allnutt, forensic psychiatrist.
15. The circumstances in which the accused committed the various offences are not in dispute, although, as to the offence allegedly committed on 18 May 2011 (see paragraph 3 above), the accused denies either intentionally or recklessly causing damage to any electrical wiring in the electrical circuit box. Taken from the Crown's exhibits, this is what happened.

1. At some time between 2.00 am and 2.30 am on 18 May 2011 Mr Tobias Seldon, the occupant/owner of one of the ten units in the Braddon Park Views block of units at XX Wise Street, Braddon, was awakened from his sleep by the growling of his dog. On awakening, he heard noises, like metal striking metal, coming from the basement car park beneath his unit. He left his unit and went to the car park to investigate the cause of the noises that he had heard. When inside the car park he saw a man, who was the accused, standing at an electrical circuit box, the cover of which had been removed and was standing on the ground (see the photographs attached to Exhibit E), manipulating some of the wires within the circuit box. He asked the accused, "What are you doing here?" and the accused replied, "Oh, mate. You scared me. I'm just fixing some of your electrical problems." After saying, "No, you're not, mate," to the accused, he left the car park and returned to his unit to call police (see Exhibit D). Later, it was noticed that the electrical wiring for the unit block's intercom system had been damaged, with the result that the system was not operating (see paragraph six of Exhibit E). This damage cost $110 to be repaired (see Exhibit H).
2. At about 2.25 am on 18 May 2011 Constable Robert Langlands and Constable Kendelle Treloar attended at Mr Seldon's unit in response to his call to police. After speaking with him, they went with him to the door into the car park (see the photograph attached to Exhibit E), and, after he had used his card-key to open the door, they went into the car park where they found the accused. After asking him for "identification," for which the accused provided an ACT driver's licence in his name, Constable Langlands asked the accused, "You don't live here, what are you doing here?" and he replied, "I'm a contractor from Telstra. I'm here fixing jumper cables." After noting that he was wearing a gray jacket, a dark long-sleeved shirt, blue-jeans and black sneakers, without any "Telstra" logo on his clothing, and that he did not have any tools with him, Constable Langlands asked the accused for his contact at Telstra, and he replied, "I work for Mr and Mrs Smith who used to live in Florey." After some further conversation, which need not be recited, the accused handed a small plastic bag containing cannabis (see the photograph attached to Exhibit E) to Constable Langlands and he said that he had paid $70 for the cannabis. While speaking with Constable Langlands in the presence of Constable Treloar, the accused was in an agitated state. He was speaking hurriedly, and occasionally non-sensically, and he punched himself to his face. Constable Langlands thought that he was under the influence of an intoxicating substance or suffering from a mental illness (see Exhibit E). Constable Treloar thought that he was under the influence of an intoxicating substance (see Exhibit F). The accused later told Constable Langlands that he was "bi-polar," and that he had used a small amount of amphetamines.
3. At about 2.44 am on 18 May 2011 Sergeant Kenneth Williams also attended at Mr Seldon's unit in response to his call to police. He saw Constable Langlands and Constable Treloar in the car park talking with the accused. He saw that the accused was "undergoing very sudden mood swings. His clothing was dishevelled. His pupils were non-responsive to light or external stimuli. He randomly punched himself in the face, and then practiced his "Elvis" kung-fu moves." He believed that the accused was under the influence of intoxicating substances, and that he was moderately intoxicated (see paragraph nine of Exhibit G).

The Offences Allegedly Committed between 25 June 2011 and 4 July 2011

1. At some time between 25 June 2011 and 4 July 2011 the accused, without permission or lawful excuse, entered the garage at XX Schonell Circuit, Oxley, owned by Mr John Dillon, and he stole a chainsaw and two plastic boxes containing camping equipment owned by Mr Dillon (see Exhibit A). Mr Dillon did not become aware of the burglary and theft until 5 July 2011, after which he reported them to police (see paragraph four of Exhibit C).
2. On 5 July 2011, after reporting the burglary and theft to police, Mr Dillon spoke with some of his neighbours about what had happened, and, when speaking with one neighbour, who lived at XXX Newman Morris Circuit, he noticed the plastic boxes, in which he had packed his camping equipment, under a pergola at the rear of premises at XXY Newman Morris Circuit. These premises were occupied by the accused and his then girlfriend, Ms Shannon Roffey. Mr Dillon reported what he had seen to police (see Exhibit A).
3. At about 7.15 pm on 5 July 2011 Sergeant Chris Bird, Constable Darren Fitzroy, Constable Daniel Gardiner, Constable Kellie Cochrane and Constable Matthew Hall attended at XXX Newman Morris Circuit in response to Mr Dillon's report of what he had seen on those premises. Police, with the consent of Ms Roffey, entered the premises to seize the plastic boxes. On entering onto the pergola, police found the stolen chainsaw in addition to the plastic boxes which contained Mr Dillon's camping equipment (see Exhibit C).
4. At about 2.30 pm on 26 July 2011 the accused put a piece of paper under the front screen door of Mr Dillon's home (see paragraph 7 of Exhibit B). I interpose to note that, although the Crown prosecutor referred to this piece of paper as a "sorry note", I have not been provided with this piece of paper and that I have not been told what was written upon it.
5. At about 2.45 pm on 26 July 2011 Mr Dillon arrived at his home. He saw a neighbour and the accused standing on the footpath and talking together. After he had walked up to them, the accused asked him, "Are you the bloke who lives in that house?", nodding towards his home, and he replied, "Yes." Then the accused said, "G'day, my name is Blake O'Brien and I just want to unreservedly apologise. I am the bloke that stole your little red chainsaw and camping gear. I want you to know I was fucked up on drugs and not on my meds and I promise you it will never happen again." (see paragraph 12 of Exhibit B). In further conversation the accused said, in part, "I promise it will not happen again. I was on drugs and off my meds. My head was fucked up and I was walking around at nights. I took the little red chainsaw and met your pups," (see paragraph 14 of Exhibit B) and "I'm sorry. It won't happen again and we're neighbours now like it or not." (see paragraph 20 of Exhibit B).

The offences allegedly committed on 21 August 2011

1. On 19 August 2011 Ms Lisa Kendrigan parked her motor vehicle, Daewoo hatchback, registered number New South Wales XXX-XX0, on Newman Morris Circuit, Oxley, adjacent to XX Newman Morris Circuit. At about 9 pm on 20 August 2011 she saw that her vehicle was where she had left it. At about 9.20 am on 21 August 2011 she found that her vehicle was not where she had left it. She reported the theft of her vehicle to police (see Exhibit P).
2. At about 1.45 pm on 21 August 2011 the accused drove the Daewoo hatchback owned by Ms Kendrigan along Lonsdale Street, Braddon, before stopping it adjacent to the Bottle-O liquor shop at XX Lonsdale Street (see Exhibit Q). His half brother, Mr Nicholas Bolas, was the front seat passenger in the vehicle. After stopping it, the accused left the vehicle and walked into the shop. He was wearing a long tan coloured trench coat, a Driza-Bone, over his other clothes and he had a tool belt around his waist, from which a hammer was hanging, (see Exhibit Q). On entering into the shop, he walked to the counter at where the shop attendant, Ms Kym Johnson, was standing. Although Ms Johnson asked him, "Can I help you?", he did not reply but he grabbed a packet of beef jerky, which was on a stand sitting on the counter, with such force that the stand fell from the counter onto the floor. He then walked out from the shop and returned to the vehicle. However, after reaching the vehicle, he turned toward the shop and he kicked over a wooden sign and a wooden barrel which were at the front of the shop, after which he returned to the vehicle, entered it and drove it away. After the vehicle had been driven away, Ms Johnson called police and reported what had happened (see Exhibit R).
3. At about 2.02 pm on 21 August 2011 Constable Robert Langlands and Constable Nathan Watts, who had heard of what had happened at the Bottle-O shop in Braddon, came upon the Daewoo hatchback parked and unattended in the driveway facing a garage of the Argyle Apartments at XX Currong Street, Reid. Constable Langlands reported the finding of the vehicle to ACT police operations. Constable Watts left Constable Langlands at the vehicle and went into the apartment block to door knock the residents (see Exhibit T).
4. A few minutes before 2.28 pm on 21 August 2011 Mr Rogello Palomar heard loud knocking on the metal screen door at the front entrance into his unit, Unit XX, Block XX, Bega Court in Kogarah Lane, Reid. He opened the wooden entrance door in response to the knocking and saw two men. The men were the accused and his half brother, Mr Bolas. He left the metal screen door closed and locked. A conversation ensued between him and the men, in which the men asked for "Mick." As he had become scared that the men might try to force their way into his unit, he closed and locked the wooden entrance door, whereupon one of the men kicked the metal screen door. He used his mobile telephone to call police to report what had happened. While talking to police, he saw the two men walk from Bega Court across Kogarah Lane towards Boolee Street then onto the driveway of a building on the opposite side of Kogarah Lane to Bega Court and out of his sight. After talking with police, he opened the front entrance door to his unit and he saw that the metal screen door and the wooden door frame of the wooden entrance door had been damaged (see Exhibit S and the photographs attached to Exhibit T).
5. While he was waiting at the Daewoo hatchback for the arrival of forensic police, Constable Langlands heard yelling by males coming from Bega Court about a block away from him and he saw a police car being driven along Currong Street. He waved down the police car and told Constable David McMennemin and Constable Gareth Edwards what he had heard coming from Bega Court, following which Constable McMennemin and Constable Evans left him and went off towards Bega Court (see Exhibit T).
6. Shortly afterwards, Constable Watts rejoined Constable Langlands at the Daewoo hatchback and then Constable Langlands left Constable Watts at the vehicle and went to Bega Court. On his arrival in Kogarah Lane, he heard yelling by males coming from a garden of a building opposite Bega Court. On reaching the garden, he saw that Constable McMennimen had control of Mr Bolas and that Constable Evans had control of the accused. He saw that the accused was wearing a brown full length Driza-Bone jacket. He saw Constable Evans remove a light brown tool belt, from which was hanging a hammer (see the photograph attached to Exhibit T), from around his waist and a black pouch containing two throwing knives (see the photograph attached to Exhibit T) from around his left ankle.

The offences allegedly committed on 23 August 2011

1. At about 11.40 pm on 23 August 2011 Ms XX met the accused in the car park of Kanangra Court in Allambee Street, Reid, notwithstanding that she had obtained a protection order against him only 18 days earlier because of his violent conduct towards her (see the order attached to Exhibit J and see, also, Exhibit M). They went together in Ms XX's motor vehicle to the Medicare office in Civic, then to a shop in Braddon, then to the Northbourne Flats in Braddon where the accused was living and then to Allawah Court in Braddon at where, after being away from her for a few minutes, the accused said her, "I cannot get any until 8 o'clock. You will have to come back and pick me up." I interpose to say that I know that "any" refers to either amphetamine or methamphetamine. Then they commenced to return to the Northbourne Flats. However, during the trip the accused became agitated. He turned up the volume of the vehicle's stereo system. He demanded to be driven to "Annette's place.' He kicked in the glove box in the vehicle's dashboard. He pulled the vehicle's rear vision mirror off the windscreen and he pulled the blue tooth receiver off the driver's side sun visor and threw it out of the vehicle (see the photographs attached to Exhibit L). Upon arriving at "Annette's place", Ms XX left the vehicle, ran up to the front door of the home and knocked on it and, after the door was opened, entered into the home (see Exhibit J).
2. "Annette" is Ms Annette Rawson and "Annette's place" is XX Karri Street, O'Connor. As she was waiting for the front door to be opened, Ms XX saw the accused leave the vehicle and walk towards the home and, while walking, kick the letterbox at the front door of the home. After the front door was opened by Ms Rawson, Ms XX entered the home and, when inside, she used her mobile telephone to call police to report what was happening. While she was talking to police the lights in the home went off (see Exhibit J).
3. After the lights in the home had gone off, Ms Rawson opened her home's front door and she saw the accused in the front of her home, the basin of her concrete birdbath lying on the ground with the pedestal standing near it (see the photographs attached to Exhibit L) and Ms XX's motor vehicle parked on the street in front of her home. She called out, "Hey, turn my power back on" to the accused and she closed the home's front door and, shortly afterwards, the lights in the home came back on. While they were waiting inside the home for the arrival of police, Ms XX received a few calls on her mobile telephone from the accused's mobile telephone, calls which she did not answer (see Exhibit J), and Ms Rawson heard the accused calling out, "I want Nick." and, "I want to see Nick" (see Exhibit K). Then police arrived at the home and, after speaking with him, arrested the accused and took him away (see Exhibits L, M, N and O).

1. As I have said already, on 19 February 2013 I commenced to conduct the accused's trial. On that day I heard evidence given by the accused and evidence given by Dr Allnutt.
2. The accused's overall explanation or reason for the offences allegedly committed on 18 May 2011, between 25 June 2011 and 4 July 2011 and on 21 August 2011 is that he believed that he, "was a contestant or a participant in what I felt to be an international search for the next Messiah. I felt that I was a finalist in this search." (See transcript page 16, line 10).
3. As to the offence allegedly committed on 18 May 2011 the accused's evidence-in-chief was:

"It was late at night. I was walking around Braddon and I saw two bright red lights across Haig Park. I believed that those lights were an indication or a message that I should head in that direction and that I would find something of importance.

And what did you do?---I walked through the park. I got to the red lights and found a newly completed, what appeared to be a newly completed apartment complex and I started looking around the apartment complex for the clue or for the item that had been left there for me.

Right, and did you find a clue or an item?---I didn't. I don't believe so.

And did you do anything in relation to any of the electrical services at the apartment?---I did. I went into the underground car park and removed the cover of some kind of telephone exchange.

And did you do anything with that exchange device?---No I didn't."

(See transcript page 16, line 36 to page 17, line 10.)

1. As to the offences allegedly committed between 25 June 2011 and 4 July 2011 the accused's evidence-in-chief was:

"You attended, at some point, on your neighbour's residence?---I did, yes.

Can you tell His Honour what led to you going to your neighbour's residence?---It was, again, it was late at night. I was in the lounge room watching TV and listening to the radio I think and I received a message that I should go outside and have a look around, that I'd find something important.

And so what significance did you attribute to the message?---Well, I believed it was a message from the group or the people that were organising this search for the Messiah.

And what did you do in response to the message?---I went outside and I had a - I walked around, just walked around the house, went across the road and noticed that there was - one of my neighbours had an open garage door. I walked up to the gate and I was greeted by the two dogs that lived there. The dogs were very friendly and I took this as an indication that I was at the right place and that I should proceed. So I opened the gate, went into the shed and found the chainsaw that were sitting there quite prominently. So I picked that up and then on my way out of the backyard I saw to large plastic cases sitting on the table and I believed them to be of some importance. So I picked them up and then went back to the house.

Right, and did you do anything with those objects?---I examined them when I got home. I could not find anything that struck my eye as being overly important so I just put them in the backyard."

"It was this Messiah competition in your mind that made you go and take the chainsaw and the other items?---Yes.

I suppose you knew that they were not yours?---I knew that I hadn't owned them previously but I believed that they had been left there for me."

1. As to the offences allegedly committed on 21 August 2011 the accused's evidence-in-chief was_:_

"Now, I take you on to August of 2011. So 21 August 2011, you have been charged with riding dishonestly in a motor vehicle?---Yes."

You'd been charged in relation to some property damage at some flats?---Yes.

Would you tell his Honour how you came to be associated with the motor vehicle?---Again, it was late at night. I was living in Oxley, and I'd had an argument with Shannon. So I left the house and I wanted to get into Civic to meet with XX and I went into a car park and found a vehicle. That vehicle was unlocked, and I took that as a sign that the vehicle had been left there for me. I opened the vehicle and saw that the ignition had been tampered with, and I was able to start the car with a screwdriver or with a key that didn't fit the car.

And you subsequently drove that car?---I did. I drove to Civic, where I met XX. And we went to a friend's house and stayed there that night.

And did you subsequently attend at a flat with Mr Bolas?---I did the next day, yes.

And can you tell His Honour what your recollection is of that attendance at the flat?---Yes. We went to a flat together where I had purchased drugs off somebody in the past, and we were looking for that person. His name was Mick.

Can I just pause you there. Why were you looking for that person?---To buy drugs.

And why were you interested in purchasing drugs?---Because I was fatigued and I was feeling tired and I felt that I needed to be aware and awake.

And, again, why did you feel the need to be awake rather than sleeping it off?---Because I believed I was part of a search for the next messiah. I believe that I was a contestant or a finalist in the search.

And what do you recall happening at the flats?---I recall the gentleman answering the door saying that Mick wasn't there. I believe my brother said, "Let's just kick the door," and I believe he kicked the door.

You had a hammer with you?---I did. I picked up a tool belt at my friend's house that morning before I left to go and find Mick. I put the tool belt on and thought that I might need it."

(see transcript page 19, line 44 to page 20, line 43)

I note that the accused did not say anything about the incident at the Bottle-O shop in Braddon (see paragraph 31 above). I note, also, as to his possession of the tool belt, from which he had hung a hammer, and of the two throwing knives, the accused said:

"You had a hammer with you?---I did. I picked up the tool belt at my friend's place, that morning before I left to go and find Mick. I put the tool belt on and thought that I might need it."

"And the throwing knives, are you able to tell His Honour why you had them?---Not for any particular reason. I remember finding them at my friend's house where I had stayed the night before and strapping them to my leg. I had - when I was arrested I actually forgot that I had them."

(See transcript page 56, line 45 to page 57, line 4.)

"I remember strapping them onto my ankle, but with everything that happened that day, by the time the police arrested me I did not even remember that I had them."

1. However, the accused's explanation or reason for the offences allegedly committed on 23 August 2011 is different from his explanation or reason for the offences allegedly earlier committed. His explanation or reason for the offences allegedly committed on 23 August 2011 was that he had "suddenly came to believe very strongly that my brother Nick and XX had been engaged in a sexual relationship" (see transcript page 21, line 29.)
2. As to the offences allegedly committed on 23 August 2011, the accused's evidence-in-chief was:

"Yes?---And then my brother - and then we began driving and I suddenly came to believe very strongly that my brother Nick and XX had been engaged in a sexual relationship. And I got quite agitated and demanded that and XX take me to where Nick was staying in O'Connor.

Yes?---On the way in the car I was angry. I removed her rear-view mirror from the window. I kicked the dash of her vehicle and then went and got - and then when we got to XX's house in O'Connor where Nick was staying XX rushed inside. Annette let her in and locked the door and I followed, knocking on the door, trying - asking to speak to my brother. The door was not answered. I was trying to find XX and she would not answer the phone so to elicit some kind of response I opened the power box at Annett's house and turned off power. That did not do me any good. I was still - I still was not getting inside or able to get in touch with XX or Nick on the phone. I pushed over her birdbath and I bent the cover of her mailbox - the lid of her mailbox. And it was soon after that the police arrived."

1. Dr Allnutt interviewed the accused on 12 November 2012 via audio link. I assume that the accused was in Canberra. I know that Dr Allnutt was in Sydney. The interview lasted between one and one and a half hours. Dr Allnutt's report, Exhibit 1, is the result of the interview and the review of the documents referred to by him in his report. Dr Allnutt concluded that, as to the accused's mental state generally, he suffered from bi-polar affective disorder (see paragraph 3 on page 7 of Exhibit 1) and a substance abuse/dependence disorder (see paragraph 4 on page 7 of Exhibit 1) which had aggravated the symptoms of his bi-polar affective disorder and that, as to the accused's mental state at the time of his committing of the alleged offences, he was exhibiting "symptoms consistent with a "mental impairment" arising out of his bi-polar affective disorder" (see paragraph 3 on page 8 of Exhibit 1), although "the mental impairment would not have been of such a severity that it had the effect that he did not know the nature and quality of his actions" (see paragraph 4 on page 8 of Exhibit 1 and see also section 28(1)(a) of the Criminal Code 2002); but may have "had the effect that he did not know the wrongfulness of his actions" (see paragraph 5 on page 8 of Exhibit 1 and see also section 28(1)(b) of the Criminal Code 2002) and may have "had the effect of reducing his capacity to control his actions and to be more impulsive and act without thought" (see paragraph 6 on page 8 of Exhibit 1 and see also section 28(1)(c) of the Criminal Code 2002.)
2. Dr Allnutt repeated his opinion in his evidence-in-chief and maintained his opinion during cross-examination. He agreed, however, that the accused's explanations or reasons for what he is alleged to have done (see paragraphs 40 and 44 above) could be "a mere concoction" (transcript page 92, line 10), although he "had not seen any information that suggests he is fabricating or embellishing" (transcript page 92, line 30). I asked Dr Allnutt:

"Doctor, I do not deny that he has bi-polar one, all I'm asking is, is it possible that he has concocted the story about the search for the Messiah in order to cover his guilt in relation to a series, 16 in all, of criminal offences?Yes, it is always possible that people can do that. It is possible.

1. As I am the judge of the facts as well as the judge of the law, I recognise that the following general principles, which are designed to ensure that an accused person receives a fair trial according to law, govern the trial:
   1. the Crown has the burden to prove the guilt of the accused;
   2. the accused does not have any burden to prove anything other than that he was suffering from a mental impairment at the times when he did the things that he is alleged to have done;
   3. the level or standard of proof upon the Crown is proof beyond reasonable doubt;
   4. the accused is presumed to be innocent unless and until his guilt is proved by the evidence beyond reasonable doubt;
   5. I must bring an open and unbiased mind to the evidence, I must view it coldly, clinically and dispassionately and I must not let emotion enter in to the decision-making process;
   6. I must assess the evidence rationally, using logic and common-sense;
   7. I may accept a witness's evidence wholly or in part, or reject a witness's evidence wholly or in part;
   8. As he gave evidence during the trial, something that he was not required to do, I must assess the accused's evidence as I assess the evidence of the other witnesses. His evidence is not any better or any worse than the evidence of any other witness simply because he is the accused. If I reject his evidence, I must not find him to be guilty unless other evidence, which I accept, satisfies me beyond reasonable doubt of his guilt;
   9. If the evidence satisfies me beyond reasonable doubt of the accused's guilt, then the accused loses the presumption of innocence and I must find him to be guilty;
   10. If, however, the evidence fails to satisfy me beyond reasonable doubt of the accused's guilt, then the accused remains presumed to be innocent and I must find him to be not guilty;
   11. If the accused has a burden to prove something, the level or standard of proof of that something is the balance of probabilities.

I have listed these principles in other cases (see R v Mulcahy [2010] ACTSC 98, R v Hill (2012) 266 FLR 1 and R v Butler (2012) 266 FLR 168) and I do not see any need in this case to expand upon those principles.

1. After the close of the accused's case and in the absence of a Crown case in reply, the accused's counsel submitted that the evidence did not prove beyond reasonable doubt that the accused had either intentionally or recklessly caused damage to the electrical wiring in the electrical circuit box of ACT Strata Management Services on 18 May 2011 (see paragraphs 3 and 21 to 24 inclusive above). The accused's counsel relied upon the accused's evidence that:

"And did you do anything with that exchange device?---No, I didn't."

"And can you tell His Honour about the wire?---They were wires that I found in the - once I took the plastic cover off the telephone exchange, I found them in the bottom of the case. They were loose and I picked them up."

"Do you agree that you cut the wires?---No I don't."

"And what you've told his Honour today is that you admit taking the cover off the box but not cutting the wires, is that correct?That is correct, yes.

I put to you that you did cut the wires, they weren't already cut?Well, I disagree with you that I cut the wires. I wouldn't disagree that in taking the cover off, I may have done some damage to the wires because I understand through reading through the facts that there was an intercom that was damaged but I have no recollection whatsoever of intentionally damaging the wires.

1. The Crown prosecutor submitted that the conclusion that the wiring of the unit block's intercom system had been damaged could be made on the evidence that, after the accused had been found inside the basement car park, the unit block's intercom system was found to be not operating (see paragraph 6 of Exhibit E) and the damage to it was repaired at the cost of $110 (see Exhibit H), and the conclusion that the damage to the wiring of the intercom system was caused by the accused could be made on the evidence of Mr Seldon that, on his seeing the accused standing by the electrical circuit box with the cover of the box standing on the ground, he saw the accused, "manipulating some of the wires in the circuit box." (see paragraph 6 of Exhibit D.) The Crown prosecutor submitted that these conclusions were supported by the state of the electrical wiring as seen by police (see the photographs attached to Exhibit E).
2. I agree with the Crown prosecutor. I am satisfied beyond reasonable doubt that the accused intentionally, in the sense of deliberately, damaged the wiring in the electrical circuit box of the unit block's intercom system with the result that the intercom system ceased to operate, although the evidence does not reveal precisely what was that damage. I reject the accused's evidence as it flies in the face of the objective facts. I consider that it is implausible, if not fanciful, that somehow or other the electrical wiring within the circuit box was damaged when the cover of the box was removed from the box. I consider that the accused's acts in entering into the unit block car park, although how he did so is not revealed by the evidence; removing the cover from the electrical circuit box and placing it on the ground against a wall; and then removing the wiring from the box and "manipulating" it, that is interfering or tampering with it, so as to render the intercom system inoperable were intentional acts of the accused designed to produce the result that occurred.
3. Accordingly, I am satisfied by the Crown's evidence (see paragraph 19 above), that the essential elements of each offence with which the accused stands charged have been proved beyond reasonable doubt. Indeed, with the exception of the offence allegedly committed on 18 May 2011 (see paragraphs 3, 21 to 24 and 49 above), I understand that the accused does not dispute that the essential elements of each of the other offences with which he has been charged have been proved beyond reasonable doubt (see transcript page 105, line 26). Therefore, I make the following findings beyond reasonable doubt:
   1. On 18 May 2011 the accused intentionally caused damage to electrical wiring in an electrical circuit box at Braddon Park Views at XX Wise Street, Braddon, owned by ACT Strata Management Services;
   2. Between 25 June 2011 and 4 July 2011 the accused entered the garage at XX Schonell Crescent, Oxley, owned by Mr John Dillon as a trespasser intending to commit theft of property;
   3. Between 25 June 2011 and 4 July 2011 the accused dishonestly appropriated a chainsaw and camping equipment of Mr John Dillon intending to permanently deprive Mr Dillon of the property;
   4. On 21 August 2011 the accused possessed prohibited weapons, namely two throwing knives, when he was not authorised by permit or otherwise to do so;
   5. On 21 August 2011 the accused dishonestly rode in a motor vehicle owned by Ms Lisa Kendrigan which had been taken by someone without the consent of Ms Kendrigan;
   6. On 21 August 2011 the accused intentionally caused damage to the metal screen door and the frame of the wooden entrance door at Unit XX, Block XX Bega Court, Reid, owned by ACT Housing;
   7. On 23 August 2011 the accused intentionally caused damage to a motor vehicle owned by Ms XX;
   8. On 23 August 2011 the accused engaged in conduct that contravened a protection order made in favour of Ms XX; and
   9. The accused intentionally caused damage to a letterbox at

XX Karri Street, O'Connor, owned by Ms Annette Rawson.

4. My findings that the accused did the various things that he is alleged to have done brings me to the issue of whether the accused, at the time of doing those things, was suffering from a mental impairment which rendered him not criminally responsible for those things.
5. Section 28 of the Criminal Code 2002 provides that:

(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

(2) 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

(b) for any other offence - find the person not guilty of the offence because of mental impairment.

mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a "reactive condition") resulting from the reaction of a healthy mind to extraordinary external stimuli.

(3) However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

1. I accept that, at the time of doing the things that he did, the accused was suffering and had suffered for a long time from bipolar affective disorder and that, also, he was suffering from substance abuse/dependence disorder. But his suffering from these disorders did not mean, necessarily, that he had a mental impairment so as to render him not criminally responsible for the various things that he had done.
2. As I have said already, the accused relies upon the opinion of

Dr Allnutt expressed in his report, Exhibit 1, and his evidence given on

19 February 2013. From his report I know that Dr Allnutt reviewed these documents:

1. Letters from the current partner of the accused dated 11 October 2011. 2. Letters from John Byrne dated 23 October 2011. 3. Report by registered psychologist dated 24 October 2011 and; 4. Report by Dr George dated 30 September 2011.

I know that Ms XX is the accused's fiancée and that Dr George is a psychiatrist, but I do not know who is Mr Byrne or what is the name of the psychologist. Moreover, I do not know what is contained in the documents reviewed by Dr Allnutt other than as commented upon by him in his report (see pages 6 and 7 of Exhibit 1) and I do not know what, if any, impact those documents had upon Dr Allnutt's opinion. Indeed, I do not know whether the accused gave Dr George or the psychologist an explanation or reason for his conduct and, if he did, whether it was the same as given to Dr Allnutt.

1. Also, I note that, for over 10 years until about January 2011, the accused had been treated by Dr Lew Drew of City Medical Centre (transcript page 14, line 23), that "he had been admitted in July 2011 for two weeks at Canberra Hospital," (see paragraph 5 on page 5 of Exhibit 1), that for about 8 months when imprisoned in the AMC following his arrest on 23 August 2011, he was assessed and treated by Medical Health Services of the AMC (transcript page 22, line 20) and that "since his release from the AMC he has been treated by Dr Reedy of Belconnen Mental Health" (transcript page 23, line 4). I wonder why, given the main issue in this trial, I have not been provided with a report of Dr Drew or of Dr Reedy or a copy of the clinical notes of Canberra Hospital or of the AMC Mental Health Services. I do not know whether the accused gave an explanation or reason for his commission of the alleged offences when admitted into Canberra Hospital or at the AMC or to Dr Reedy, and, if he did, whether it was the same as given to Dr Allnutt.
2. Furthermore, it must not be overlooked that, except perhaps for 4 or 5 days before the offences allegedly committed on 23 August 2011, the accused was using amphetamines over the period from May 2011 to August 2011, and that he knew that his using amphetamines would affect his state of mental health. His evidence under cross-examination was this.

"Are you aware of when you take these drugs that it affects your bipolar?---I'm aware that it has done in the past, yes.

And explain to His Honour how you know how it affects you when you take these kinds of drugs with your bipolar?---Well when I take Speed and amphetamines if I'm taking them regularly often I will forget to take my medication or not take my medication. I won't be getting enough sleep so I become sleep-deprived and it seems to, I guess in retrospect, I can say it seems to exacerbate my mental state.

But you take them anyway?---I have in the past, yes.

And you did on those occasions too over these couple of months?---I was using amphetamines regularly over that period, yes".

"And did the doctors tell you that a use of another drug would interfere with your bipolar disorder?---They certainly did. That's something that, when I'm well, I'm able to accept and process as factual information. But when I become unwell and my perspective on the world becomes skewed I guess I'm no longer able to assess that rational part of myself that should tell me that things aren't going well. I'm not sleeping, I'm - you know my thoughts start racing. I certainly shouldn't be taking amphetamines. I don't have access to that kind of ..."

1. As to the use of amphetamine or methamphetamine by a person suffering from bipolar disorder, Dr Allnutt said:

"Can I just clarify with what you, doctor - rather can I just clarify that with you doctor? Are you saying that the consumption of these substances would make, or could make, his bipolar worse?---Yes.

As distinct from merely being intoxicated with the substances?---That's correct. It follows that, if the substance in a person without bipolar disorder experiences similar symptoms similar to bipolar disorder when intoxicated on the substances that person with bipolar disorder would likely experience an exacerbation if he took amphetamines".

1. I consider that, in determining whether the accused was suffering, at the times when he did the things that he did, from such a mental impairment, that is, a delusion, that:
   1. he did not know the nature and quality of his conduct, that is, in other words, that he did not know what he was doing; or
   2. he did not know that his conduct was wrong, that is, in other words, he could not distinguish between right and wrong; or
   3. he could not control his conduct, that is, in other words, he did not have any control over what he was doing;

the accused's words and actions at those times must be taken into account.

1. As to the offences committed on 18 May 2011, I see nothing in what the accused did that shows or suggests that he was acting under a delusion. I see nothing in what the accused said to or did towards Mr Seldon that shows or suggests that he was acting under a delusion. I consider that what the accused said to Mr Seldon and repeated to Constable Langlands in the presence of Constable Treloar to be a lie, however implausible it was, simply told to cover his being in the basement car park at that time of the early morning. I consider that the way the accused acted in the presence of Constable Langlands, Constable Treloar and Sergeant Williams shows that he was acting under the influence of a prohibited drug, rather than under a delusion.
2. As to the offences committed between 26 June 2011 and 4 July 2011, I see nothing in what the accused did on this occasion that shows or suggests he was acting under a delusion. I consider that what he did on 26 July 2011 shows that he was not then acting under the influence of a prohibited drug or a delusion. I consider that his explanation on 26 July 2011 for what he did on the earlier occasion was correct, that is, he was "on drugs and off my meds", (see paragraph 13 of Exhibit B). I consider that he was acting under the influence of a prohibited drug, rather than under a delusion.
3. As to the offences committed on 21 August 2011, I am unable to decide whether the accused was acting under the influence of a prohibited drug or a delusion when he drove the motor vehicle of Ms Kendrigan. As he did not give an explanation or reason for doing what he did at the Bottle O Liquor Shop, I am unable to say that he was acting under a delusion when doing what he did. I see nothing in his evidence about his taking of the tool belt, hammer and throwing knives which shows or suggests that he was acting under a delusion. I consider that what he and his half-brother did at the entrance doors into the unit of Mr Palomar to be the actions of people either under the influence of a prohibited drug or withdrawing from the influence of a prohibited drug, rather than the actions of people acting under a common delusion.
4. As to the offences committed on 23 August 2011, I see that everything that the accused did during this day to show that he was acting while withdrawing from under the influence of a prohibited drug, rather than under a delusion. None of the police who were involved in his arrest saw any abnormality in his behaviour at the time of his arrest. Indeed, when Constable Pine asked the accused, "Hey, Blake, how are you?", the accused replied, "Yeah, good," (see Exhibit O).
5. In the result, the accused has failed to prove on the balance of probabilities that at each of the occasions when he committed one of the various offences he was suffering from such a mental impairment that he did not know the nature or quality of what he was doing on each occasion, that he did not know that what he was doing was wrong or that he could not control what he was doing. Rather, I am satisfied that he knew what he was doing, that he had control over what he was doing and that he knew that what he was doing was wrong.
6. I think, frankly, having considered the evidence, that the accused's explanations or reasons for doing the things that he did were concocted by him in the hope of avoiding criminal responsibility for what he did.
7. Accordingly, I find the accused to be guilty of each of the nine offences with which he stands charged, as detailed in paragraph 52 above.

I certify that the preceding sixty eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the accused: Darryl Perkins Solicitor