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Texts Cited: Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Review of Commonwealth Criminal Law Principles of Criminal Responsibility and Other Matters (Interim Report, July 1990) Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Chapters 1 and 2 General Principles of Criminal Responsibility (Final Report, December 1992) Stephen Odgers, Principles of Federal Criminal Law (Thomson Reuters, 4th ed, 2019)

Parties: The Queen (Crown) Julian Leslie Yeaman (Accused)

Representation: Counsel A Williamson (Crown) B Collaery (Accused)

Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Accused)

File Numbers: SCC 51, 288 of 2020

MURRELL CJ

The trial

1. The accused faces charges arising from incidents on 21 October 2019 and 31 May 2020. It was agreed that the trials should proceed together.

2. Pursuant to s 68B of the Supreme Court Act 1933 (ACT) (SCA), the accused elected to be tried by a judge alone.

3. When arraigned, the accused pleaded not guilty on the ground of mental impairment to the following three offences:

(a) Count 1: on 21 October 2019 commit arson, contrary to s 404(1) of the Criminal Code 2002 (ACT) (Criminal Code).

(b) Count 2: on 31 May 2020 intentionally inflict grievous bodily harm, contrary to s 19 of the Crimes Act 1900 (ACT) (Crimes Act).

(c) Alternative Count: on 31 May 2020 recklessly inflict grievous bodily harm, contrary to s 20 of the Crimes Act.

4. In relation to the incident on 31 May 2020, under s 49 of the Crimes Act further alternative verdicts are available, including causing grievous bodily harm, contrary to s 25 of the Crimes Act.

5. As required by s 68C(2) and (3) of the SCA, I set out the principles of law that I apply, the findings of fact that I make and the warnings, directions, or comments that I would have made to a jury had the matter be tried before a jury.

Key issues and onus

6. The defence did not dispute any fact concerning what had occurred on either occasion. Initially, the defence conceded that the elements of each offence were made out but submitted that, in relation to each charge, a special verdict of not guilty by reason of mental impairment should be entered under s 28(7)(a) of the Criminal Code. During the trial, the issue was raised as to whether, disregarding mental impairment, the evidence established that the accused had intended to inflict grievous bodily harm or had done so recklessly.

7. Section 321 of the Crimes Act does not apply because the prosecution did not agree to the entry of special verdicts. Consequently, the trials proceeded in the usual way, leaving it for the Court to decide whether, in relation to each charge, either a usual verdict or a special verdict should be entered: s 28(7)(a) Criminal Code, R v Aleer [2016] ACTSC 75 at [13].

8. Section 29(1) of the Criminal Code provides:

29 Mental impairment and other defences (1) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility.

9. As to the effect of s 29(1), in R v Jackson [2021] ACTSC 120 at [120]–[122], Mossop J referred to the decision of the High Court in R v Falconer (1990) 171 CLR 30 (Falconer) and continued:

120 The wording of s 29(1) is unfortunate because it suggests some burden upon the accused person to rely upon a particular matter in order to deny the existence of a fault element. The intention however is to ensure that in cases where a fault element cannot be established because of the mental impairment, that the matter is dealt with by way of a special verdict rather than an acquittal. … 121 The Falconer methodology suggests that in relation to determining whether the fault element … is established, first it is necessary to consider whether the Crown has excluded a possibility not arising from mental impairment. … 122. The Falconer methodology then directs the enquiry to the question of mental impairment under s 28. …

10. Consequently, I will first consider whether the prosecution has excluded a possibility that does not arise from mental impairment.

11. I will then consider whether, in relation to each charge, the accused is absolved of criminal responsibility by reason of mental impairment because:

(a) when carrying out the conduct required for the offence, he was suffering from a “mental impairment” (as defined in s 27 of the Criminal Code); and

(b) that mental impairment had the effect that he did not know the nature and quality of the conduct, did not know that the conduct was wrong, or could not control the conduct (within the meaning of s 28(1) of the Criminal Code).

12. As a person is presumed not to have been suffering from a mental impairment, it was for the defence to prove on the balance of probabilities, as a matter of fact, that the accused was suffering from a mental impairment: s 28(3), (4) and (5) of the Criminal Code.

13. The prosecution did not dispute that the accused suffered from a long-standing mental impairment, being schizophrenia. However, the prosecution did dispute the proposition that other conditions from which he suffered, being attention deficit hyperactivity disorder (ADHD) and border personality traits, could be considered as part of the “mental impairment” of the accused.

14. There was a significant dispute about which party bore the legal burden of showing (or negativing) that a mental impairment had one of the s 28(1) effects. The resolution of this dispute was important because the defence called a highly qualified psychiatrist who said that the accused’s schizophrenia had a s 28(1) effect, thereby raising a reasonable possibility that it did. The prosecution expert disagreed.

General directions

15. The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. The accused is presumed to be not guilty of each charge. If I have a reasonable doubt about his guilt, I must return a verdict of not guilty. To prove a charge beyond reasonable doubt, the Crown must prove each legal element of the relevant offence beyond reasonable doubt. The Crown need not prove each disputed fact beyond reasonable doubt.

16. In making findings of fact, I must rely upon the evidence, i.e. the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense. I must bring an open and unbiased mind to the evidence and consider it dispassionately and logically.

17. I must consider the reliability of witnesses, looking both at their honesty and the accuracy of their memory. If it is logical to do so, I may accept one part of a witness’s evidence and reject another part of the witness’s evidence.

18. The accused decided that he would not give evidence. He was entitled to exercise this aspect of his “right to silence”. I draw no adverse inference from his decision to do so.

19. The accused provided his version of each event to police. I must consider whether that version gives rise to a reasonable doubt concerning any charge, bearing in mind the expert evidence concerning the reliability of retrospective accounts given by the accused.

20. In relation to the questions of mental impairment and the effect of mental impairment, the parties called expert evidence from psychiatrists, Dr Le (who was called by the prosecution) and Dr Nielssen (who was called by the defence). By virtue of his training, study, and experience in psychiatry, each of the witnesses was qualified to give expert opinions about psychiatric matters. Where the opinions of the experts differed, I must consider the depth of the expertise of each witness, and whether his opinions were based on correct and thorough information. I must consider the expert opinions in the context of the relevant evidential burden and legal onus.

Evidence on the arson charge

21. On 21 October 2019, the accused was the sole occupant of cell 9 in the Accommodation West Unit at the Alexander Maconochie Centre (AMC).

22. Prior to 7PM, the accused placed linen in a cardboard box, which he positioned near the middle of the cell. He placed linen under a plastic mattress and positioned the bundle near the cell door. He covered a vent in the ceiling that was designed to detect smoke and activate an in-cell sprinkler system.

23. Using a lighter that he was entitled to possess, the accused ignited the cardboard box and the flammable material near the cell door.

24. He then used an intercom facility to call the Accommodation Unit monitor, saying words to the effect of “I have lit a fire, I’ve done it. Come and help me”.

25. A “code red” (indicating fire) was initiated and corrections officers responded by attending the cell appropriately dressed and equipped. Through an unsecured hatch in the cell door, they observed flames inside the cell. The accused was the only person in the cell. They unlocked and opened the cell door. They observed large flames that extended from the bunkbed to the cell ceiling.

26. The accused exited the cell. The corrections officers extinguished the fire using a dry chemical extinguisher. Nearby detainees were evacuated. ACT Fire and Rescue attended.

27. The accused was handcuffed and escorted to a clinical room. The accused commented that he was “willing to go out with a bang”. He also asserted that he was “fit to plea”.

28. In the clinical room, nursing staff decided that the accused should be moved to the Crisis Support Unit (CSU). While being escorted and strip-searched, the accused was compliant.

29. The next day, police attended the AMC and took photographs of the accused’s cell.

30. The accused agreed to be interviewed by Senior Constable Mulino. Among other things, the record of interview records the following:

Q 26 … This is about a fire that occurred in cell nine at the accommodation unit West in the Alexander Maconochie Centre last night at about seven pm. So that … A 26 And another fire that was lit by me a few weeks prior to that one. … Q 31 So, Julian, you indicated to us that you did want to say some things to us about that. What do you want to say? A 31 Yeah, I did want to say something. Um, my, ah—my mum, ah, ruined my childhood. Um, I was very angry about that. … [She] still to this day pretty much calls most of the shots or at least has a part to play … I don’t want to ever see her again. I can’t get rid of her because I’m completely and utterly financially dependent on her. … I really, really do believe that this is some sort of extravagant conspiracy concocted by some sort of psychopathic mind … The reason I lit the fire was because my stepdad told me I cannot plead guilty. … … A 34 … If someone tells me, “You can’t plead guilty,” I’ll say, “Okay.” Well, what I – what I can do is I can get my lighter, which I’m allowed in jail, and I’ll burn the fucking jail down because I’m not doing this. Q 35 Why does it upset you that you can’t plead guilty? A 35 Because I have nothing. I don’t even have—I don’t even have right to my own mind where I can say, “Yes, listen, I broke the law”. I—I really feel like all those threats I made against my mum, they were very bad, they were illegal. I should do punishment—I should be punished for that.” … I don’t have much left I can do. I don’t have much choice. And that’s why I lit the fire because I honestly don’t have a choice. And I’m protesting with … Q36 Julian, what are you specifically protesting against? Is it— A 36 That this is completely out of order. I’m not a criminal. I’m not insane. Everybody keeps telling me I can’t do this and I can’t do that, I have to go to rehab, I have to do this. …

31. The accused said that Dr Wyeth had told him that he was fit to plead but his stepfather had told him that he was not allowed to plead guilty. The accused stated that he would “rather die than have to put up with the life and the existence I’m bound to live by for the rest of my life”. He also stated that he wasn’t trying to kill himself or burn himself alive. However, when the opportunity arose: A 57 I will shoot up enough heroin—um, I’ve never touched heroin in my life. But I understand you can overdose on it very easily. My plan is to crawl down the drains near Canberra Grammar and, um, go underneath the earth. About a kilometre in. Shoot up a lot of heroin and get flushed out into the river just near Flinders. … Q 64 … You understand it’s a criminal offence, arson? A 64 Yes, I do. … A 65 I knew it was criminal. … A 66 But I don’t care. I just told you my care for anyone is very minimal … Q 71 How did you do it? And we’ll just finish it there. A 71 I just got a lighter and burnt the place. Grabbed a bunch of stuff, burnable stuff, and burnt it.

Findings on arson

32. Section 404 of the Criminal Code provides:

404 Arson (1) A person commits an offence if the person— (a) causes damage to a building or vehicle by fire or explosive; and (b) intends to cause, or is reckless about causing, damage to that or any other building or vehicle.

33. “Building” includes part of a building: s 404(4).

34. The elements of the offence are that:

(a) the accused engaged in conduct (physical element of voluntary conduct);

(b) he intended to engage in the conduct (meant to engage in the conduct);

(c) the conduct caused damage to a building by fire (result); and

(d) the accused intended to cause damage to the building (intended the result).

35. As to (d), s 18(2) of the Criminal Code provides:

18 Intention (2) A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.

36. As stated above, the defence conceded that each element of the offence was made out. Putting aside the issue of mental impairment, I am satisfied beyond reasonable doubt that the accused committed the offence. I am satisfied beyond reasonable doubt of each of the following matters.

(a) The accused used his lighter to ignite the fire in his cell; he called the Accommodation Unit monitor and said so. On the next day, he confirmed that he had done so. (b) The accused meant to light the fire. The arrangement of flammable material, the deliberate closing of the vent, the accused’s statements over the intercom and his statements to police demonstrate that he meant to light the fire.

(c) The fire caused damage to the accused’s cell, which was part of a building. The photographs that were tendered show the damage.

(d) The accused intended that the fire would cause damage. He must have known that damage would be the inevitable result of lighting a fire in a closed area. He told police that he had used “burnable stuff” and had “burnt the place”.

37. Later in these reasons, I will address the issue of mental impairment, as it affects criminal responsibility for this offence.

Evidence on the charge of intentionally inflicting harm

38. On 31 May 2020, the accused was a resident at the Dhulwa Forensic Unit (Dhulwa), where he was undergoing treatment.

39. At about 4:15PM, the accused was visited by the complainant, who is his mother. When she arrived, the complainant noticed that the accused did not look as well as he had done the previous week, when they had enjoyed a pleasant visit. He was underdressed for the cold weather and looked unkempt and dishevelled. She was a little concerned.

40. During the visit, the accused became unhappy because the complainant had not ordered items that he had requested. He complained that he could not organise his own finances because they were under the control of the Public Trustee. He demanded that the complainant release his affairs from control by the Public Trustee. The complainant told him that, before he could regain control of his own affairs, he would need to demonstrate financial competence.

41. The exchange escalated. The complainant decided to leave as it appeared that there would be no rational discussion. She commented on the cold and said that it was time for her to leave. The observer left to buzz her out. The complainant proceeded towards the door of the visiting room, which was a few metres away.

42. Up to that point, the accused had been sitting back in his chair. However, as the complainant reached the exit door, the accused suddenly stood up and approached her from behind, reaching her in three quick strides.

43. Immediately, he raised his right fist and forcefully struck the lower left back of the complainant’s head with a closed fist. The complainant stumbled forwards. She was struck with a closed fist for a second time, and she fell to the floor, where she remained cowering. The accused stood over the complainant and delivered two further punches to the back of her head. The complainant described the force of the blows as an 8 or 9/10 and as “really hard”.

44. The accused stopped, stepped back and moved to a different exit door, which led to the Visitors Courtyard. He was taken into care by security staff.

45. The incident was captured on CCTV. The time from when the accused stood up to when the attack concluded was five seconds.

46. The complainant was conveyed by ambulance to The Canberra Hospital. Dr Van Diemen reported that:

(a) The complainant presented with right occipital (rear) scalp haematoma that was the result of blunt trauma and a left ankle Weber B fracture that may have been caused by abnormal rotational or other movement.

(b) The left ankle injury was surgically repaired, leaving permanent scarring.

47. When interviewed on 18 June 2020, the complainant stated that the accused had a complex serious mental illness that had responded very well to treatment at Dhulwa. Recently, he had commenced a new mood stabilising medication in the hope that it would prevent his mood from deteriorating as the day progressed. However, the new medication had not greatly helped in that regard.

48. The complainant considered that, on the day of the incident, the accused had interpreted her behaviour as disrespectful and had concluded that she was “cutting him off” by leaving early. She described the attack as “just an impulsive thing”, reflecting a long-standing tendency of the accused to behave impulsively.

49. On 19 June 2020, police interviewed the accused. He indicated that he understood the caution. He said that, prior to the interview, he had tried without success to contact his mother and stepfather and to speak to his lawyer. He believed that his lawyer and his stepfather would have advised him to say nothing. In part, the interview records the following.

A 9 …. But seeing as I’m always in the wrong and to police it’s nothing new to me, you know. I’m not afraid of saying what I have to say. And at the end of the day its the truth and it’s my version of the truth, and it suits me just fine as it is … Even though it might get me in trouble … … Q 30 Would you like to run me through the events of that day? A 30 … [U]sually when she visits me we have, um, a breakdown in social dynamic and, um, it usually amounts in a lot of, um, blame being thrown around … usually in my direction. … I get very little my own way, um, when it comes to my mum or my brother or my family. Um, I feel like my family is … ganged up on me and I’ve been labelled the black sheep and scapegoated in many ways. But apart from that, I have just, um, really, ah, hit—I decided to punch mum in the head three times, um, because she had decided to walk away, and she’d been telling me that everything was my fault, everything was my fault and I’m my own worst enemy and everything that’s bad that’s happened to me is because I’ve done something bad. And, um, I don’t believe that’s the case. … [I]n that moment when I hit mum, I just thought, you know what, I don’t—I don’t care about getting better, I don’t care about, um, ah, what mum has to say to me, which I usually try to make a very good go of. … I’ve made really colourful threats over the years and, um, I just did eighteen months for that, and then I did another, um, year in jail for that. … I bottle up a lot of anger. I don’t have the capacity to deal with it anymore. It’s unstable. I’m unstable. I don’t have control over myself. I have a mental illness. … [I]t’s been a long time that she’s been, um, very critical of me, and I can’t really deal with that anymore. … I could not help myself. Um, something in my brain kind of snapped and, um, I decided to hit her. … [J]ust bottled up frustration and years and years and years of of trauma that I blame her for. … … A 31 … I don’t mean to cause her any harm. I want to get—I want to—I want to be a family again. … A 33 I’m not happy about what I did. … Q 37 Okay. So prior to coming and talking to your mum on that day, how would you describe your emotions before you came in here and spoke with her the first time? A37. Um, I felt okay. Um, um, I felt like defending myself to, like, accusations and just trying to stay, um, diligent … I felt fairly positive when I came in. … A 38 … I don’t know why I did what I did. I just did it because it had been so long that I’d been putting up with her bullshit. … A 40 … I just—I—I cannot accept all this chaos as my own doing. … Q 42 All right. So run me through from when your mum stood up to leave, until you left the room? A 42 Um, she – she said, “That’s it. I’m leaving.” And she went and stood over there. Then I just thought, “You look so stupid. Um, take this.” Bang. … A 44 I just punched her in the head. Q 45 Okay. How many times did you punch her? A 45 I punched her in the head. Then she fell to the ground, because she went … [S]he really, um, gets very fearful of me. She thinks I’m trying to kill or something. And I’m not trying to kill her. … … Q 48 So you said that you hit your mum once in the back of the head with the right fist and she fell to the ground. What happened after that? A 48 … I didn’t know she broken her ankle. … [S]he did that same scream that she is always doing … it’s basically making a mountain out of a mole hill. And that’s what I attributed that scream to. Um, so I punched her in the head. I don’t scream like that when I get punched in the head, so I don’t know why she does. ... … A 49 It’s like the— “Help. I’m about to die,” like. … Q 51 So what was your intention when you—when you punched her? A 51 Just to teach her a lesson, to stop treating me like shit. Q 52 Were you aware that punching her would hurt her, at the time? A 52 Yeah. Q 53 Okay. And did you intend for her to feel that pain? A 54 It wasn’t about feeling pain. It was basically just about teaching her a lesson. … A 56 I hit her once in the head. Q 57 Mm. A 57 And then she fell to the ground. And I punched her twice in the head when she was on the ground. … Q 59 And we’ll use a scale of one to ten, one being the least and ten being the most. How hard would you say that you struck her? A 59 About a six.

Findings about intentionally inflicting harm

50. Section 19 of the Crimes Act provides:

19 Intentionally inflicting grievous bodily harm (1) A person who intentionally inflicts grievous bodily harm on another person is guilty of an offence punishable, on conviction, by imprisonment for 20 years.

51. The elements of intentionally inflicting grievous bodily harm are that:

(a) the accused engaged in conduct;

(b) he intended to engage in the conduct;

(c) the conduct inflicted grievous bodily harm on another person; and

(d) the accused intended (meant) that the conduct would inflict grievous bodily harm on the person.

52. In relation to the alternative offence of recklessly inflicting grievous bodily harm, the elements are:

(a) the accused engaged in conduct;

(b) he intended to engage in the conduct;

(c) the conduct inflicted grievous bodily harm on another person; and

(d) the accused was reckless about whether the conduct would inflict grievous bodily harm on the person.

53. A person is reckless if they have foresight of the possibility of the relevant consequence, but they nevertheless proceed. Consequently, to establish the offence of recklessly causing grievous bodily harm, the prosecution must prove beyond reasonable doubt that the accused foresaw that his actions may cause really serious injury to the complainant, but he nevertheless proceeded.

54. “Grievous bodily harm” includes permanent or serious disfigurement: Dictionary to the Crimes Act. However, it is not necessary that the harm be permanent or that it involve serious disfigurement. Any really serious injury may be “grievous bodily harm”.

55. In relation to the further alternative offence of causing grievous bodily harm, the elements are: (a) the accused engaged in conduct;

(b) he intended to engage in the conduct; and

(c) the conduct caused grievous bodily harm to another person.

56. Putting aside the issue of mental impairment, I am satisfied that the prosecution has proved the following matters beyond reasonable doubt.

(a) The accused struck the complainant’s head four times. The CCTV recording shows four strikes.

(b) He intended to strike her head. The accused’s intention is apparent from the forceful and repeated nature of the conduct, and from the statements that he made to police.

(c) The conduct of striking the complainant’s head caused direct harm to her head and the complainant was indirectly harmed when the force of the blows caused her to fall and fracture her ankle.

(d) When considered together, the complainant’s injuries amount to “grievous bodily harm”, although they are at the lower end of the range of what amounts to “grievous bodily harm”.

57. I am satisfied that the accused intended to hurt the complainant to some extent and thereby “teach her a lesson”. However, I am not satisfied that he gave any thought to the level of harm that would or could be occasioned to the complainant. I am not satisfied beyond reasonable doubt that the accused intended that his blows would inflict grievous bodily harm or foresaw the possibility that they would cause grievous bodily harm. His conduct was very impulsive and occurred without reflection. Notably, it was not the blows to the head but the accidental ankle injury that elevated the harm to “grievous bodily harm”.

58. I am satisfied beyond reasonable doubt that the conduct of the accused caused grievous bodily harm to the complainant. The deliberate and forceful blow to the back of the complainant’s head caused her to stumble and fall. Inferentially, she fractured her ankle when she fell. The nexus between the forceful blow and the injury to the ankle is clear; it was the blow that “caused” the ankle injury. Consequently, putting aside any issue of mental impairment, the accused should be found guilty of an offence against s 25 of the Crimes Act.

59. I turn to the evidence of the psychiatrists concerning the accused’s mental condition and the effect of his mental condition on criminal responsibility.

Evidence of Dr Joey Le

60. Dr Le provided a report at the request of Robinson AJ. He is a Fellow of the Royal Australian and New Zealand College of Psychiatrists. He has post graduate qualifications as a forensic psychiatrist, and he has worked as a forensic psychiatrist in NSW, Victoria, and the ACT. Since 2008, as a trainee psychiatrist and later as a qualified psychiatrist, he has worked with thousands of schizophrenia patients. He sees such patients “multiple times each week”.

61. Although Dr Le lacks the experience and standing of Dr Nielssen, he has significant experience, particularly in forensic psychiatry. He was a balanced and insightful witness who had thoroughly reviewed the available material. I concluded that his opinions were very reliable.

62. Dr Le reviewed key evidence to be called in the trials (including statements, and the CCTV footage of the incident on 31 May 2020), considered two reports of Dr Nielssen and reviewed the electronic clinical records of Canberra Health Services concerning the accused in the periods before and after each incident. On 12 March 2021, he interviewed the accused regarding both incidents.

63. From the material that he reviewed, Dr Le derived the following information. The information was admitted unconditionally.

(a) On 20 October 2019 the accused told a psychologist, “that he was having thoughts to set a fire in his cell because he hates his mother, hates his circumstances and because he has no control he would rather just burn the whole place down …”

(b) On the morning of 21 October 2019, the accused was transferred to the CSU because of concern about his mental health. He told a registered nurse that he felt “distressed around multiple issues in his life, custody, family, mental health ...” He denied that he intended to self-harm.

(c) Following the arson incident, a registered nurse recorded that the accused was “agitated about law case and upcoming court date”. He stated that Dr Wyeth would allow him to plead guilty but “his power of attorney wished otherwise”.

(d) On the morning of 22 October 2019 in the CSU, the accused told a registered nurse that he had been frustrated because his stepfather had given him legal advice with which he disagreed, he was frustrated with his mother, and he was frustrated with being in custody. The nurse opined that he was “not presenting as frankly psychotic”.

(e) On 26 May 2020 the accused was described as “possibly delusional with no reported hallucinations. Significantly tangential and at times illogical”. A registered nurse recorded “insight and judgement remain impaired”. On 28 May 2020 a registered nurse noted “continue(ing) (sic) to have poor coping skills, when he is not given what he wants immediately he would be angry and either damage property, swear or threaten staff”.

(f) On 29 May 2020, Dr Barker, a psychiatrist, noted that there were “[n]il delusional ideas shared. Thought form remains organised. Thought content is mostly focused on his next level studies. He did not share any thoughts of self-harm or harming other people”.

(g) In the hours before the incident on 31 May 2020, staff observed that the accused was generally settled, and he was focused when undertaking his gym program.

(h) Following the incident, on 1 June 2020 the accused said of the complainant that she “kept pissing me off. I don’t like her face. I don’t like her voice. I should have stepped on her neck. I could have killed her. I could go to jail by killing her or go to jail without killing her. I may kill someone in jail, that will be okay as they are criminals …”

(i) On 1 June 2020, the accused told a psychiatric registrar that he regretted assaulting his mother. He then said that she was responsible for his incarceration in prison and in Dhulwa and his conversation “was suggestive of long-standing building animosity towards her”. However, he described the assault of 31 May as impulsive, stating “it was because of how she spoke to me at the end of the visit, “we’re done””. In response, he had thought “yeah we are”. He blamed his mother because he was “the lowest of the low” and he remained “quite irritable and volatile”.

(j) Having viewed CCTV footage of the assault on 31 May, on 2 June a psychiatric registrar noted that the accused “did not seem particularly emotionally dys-regulated at the time”. When she saw him, she considered that he was “settled, remorseful, and guaranteed the safety of himself and others, although continued to show evidence of an ongoing external locus of control, citing his mother’s long-standing pattern of behaviour towards him as part of the reason for the attack”. He told the registrar that his mother had been dismissive towards him and had said “I’ve had fucking enough of this” as she went to leave. He then thought “I’ve had enough too” and attacked her. He was concerned about the legal consequences and his own feelings of guilt.

64. When seen by Dr Le on 12 March 2021, the accused provided the following information:

(a) He suffered from schizophrenia and borderline personality disorder.

(b) When people upset or ignored him, he experienced angry outbursts.

(c) In relation to the arson offence, he had been frustrated with imprisonment and had thought “if I’m going to sit here, I might as well get something for my money’s worth”. He had “just got worked up and decided that [he] would light a fire because [he] didn’t care if [he] did more time”. He thought “I’m going to fight against the country and resist oppression”. He also thought that “lighting a fire and continuing to light fires until the place was ashes on the ground would get me out of here”; “they would just open the door and let me out”. At the time, he had been extremely irritable.

(d) As to what he had expected after he set the fire, the accused said “I thought they would just open the door and put me into CSU. And I guess that’s what happened”.

(e) The accused described the assault on his mother as “like a hostage situation where the person keeping the hostage was trying to get in my head” and keeping him in Dhulwa. After he had complained to his mother that she was responsible for him being “stuck” in Dhulwa, she had stood and turned around. He had become angry and thought “this is my chance”. He was not trying to kill her, and he had not contemplated that she would break her leg. He was “just trying to hurt her to make her feel pain and teach her a lesson” because she had “fucked [his] whole life up”.

65. Dr Le said that, when interviewed, the accused was irritable in mood and blunted in affect. He was thought-disordered. He reported “fixed, longstanding overvalued ideas about his mother’s constant interference with his affairs and described an ambivalence about his relationship with her”. The accused reported thoughts of wanting to initiate a siege at the mental health unit, “in order to advance his belief in his entitlement to self-determination”.

66. In relation to the accused’s mental impairment, Dr Le stated: Mr Yeaman is a 38-year-old man who has psychiatric diagnoses of schizophrenia occurring on a background of borderline personality traits, as per DSM-5 (American Psychiatric Association 2013). He has a mental illness within the meaning of the Mental Health Act 2015, evidenced by the presence of serious disorder of thought form, persecutory and grandiose delusions. There is a marked functional decline evident over the course of his life from mid-adolescence, and he has an established diagnosis of schizophrenia which is not in dispute. There is a history of impulsive behaviour from childhood, as evidenced by his previous childhood diagnosis of ADHD, and borderline personality traits (diagnosed as borderline personality disorder by the treating team), which are likely to contribute to episodes of impulsivity and dysregulated behaviour. The presence of borderline personality traits affecting Mr Yeaman would not meet the description of “severe personality disorder” in section 27 of the Criminal Code 2002, and as such would not, in this writer’s opinion, could not be considered as a contributing factor in the consideration of eligibility for a defence of mental impairment under section 28. (emphasis in original)

67. Dr Le said that people suffering from schizophrenia usually understood right from wrong, appreciated the nature and quality of their conduct and could control their behaviour.

68. In relation to the arson offence, Dr Le said that the accused’s overall mental state was such that he had understood the nature and quality of his conduct, understood right from wrong and could control his conduct. The offence could be “conceptualised as an attempt to exercise control by one of the few means he felt he had available to him”. He opined that the accused’s impulsive behaviour was better explained by borderline personality traits and residual effects of ADHD than chronic schizophrenia. However, schizophrenia would have contributed to the conduct. Although the accused had foreshadowed the possibility of setting a fire, the fire was lit somewhat impulsively. There was evidence of thought disorder when the accused spoke to the police shortly after the offence.

69. In relation to the accused’s assault on his mother, Dr Le considered that the accused had known the nature and quality of the conduct and that it was wrong. He opined that the accused’s lack of control had not stemmed from schizophrenia; the visit had been unremarkable prior to the attack. However, schizophrenia does make people more prone to impulsive conduct. He pointed out that the accused’s belief that his mother was interfering with his affairs was, to an extent, founded in the reality that she was an active parent and carer who had expressed views that differed from his own. On the other hand, the accused’s belief that his mother was interfering with his mind was delusional. Dr Le described the impulsive attack as “a maladaptive response to being given information by his mother that he did not agree with, consistent with borderline personality traits”. It was reflective of longstanding animosity that had not manifested in repeated assaults, as one would expect if the accused was unable to control his conduct vis a vis his mother (not just threatening his mother, as he did frequently, but carrying through the threat, which occurred rarely). Rage had overwhelmed his ability to control his behaviour.

70. In Dr Le’s view, Mr Yeaman’s statements soon after the incidents were very relevant to an assessment of his state of mind at the time of the incidents.

71. Dr Le considered that Dr Nielssen had overemphasised the role of schizophrenia. He pointed out that the accused was not generally disinhibited (general disinhibition could reflect neurodegeneration from schizophrenia); rather, his aggression reflected a preoccupation with his mother that was more in keeping with border personality traits. Although the preoccupation was consistent with both schizophrenia and border personality traits, the consequent impulsive and disruptive behaviour was more reflective of border personality traits and ADHD. Dr Le said that there was a strong association between schizophrenia and ADHD, and schizophrenia would prevent a person from overcoming the effects of childhood ADHD, including impulsivity. There was a complex interaction between the three conditions, which explained the behaviour.

72. In Dr Le’s view, neither the accused’s border personality traits nor his ADHD met the description of “severe personality disorder”.

Evidence of Dr Olav Nielssen

73. Dr Nielssen is a highly qualified and experienced forensic psychiatrist who has had several dealings with the accused. However, the persuasiveness of his opinions is tempered by the fact that he had not read the accused’s record of interview concerning the arson, the Dhulwa notes on the accused, or the electronic clinical records concerning the accused.

74. Whereas Dr Le brought balance and thoroughness to his assessment of the accused, Dr Nielssen brought great experience and background knowledge of the accused.

75. Dr Nielssen interviewed the accused by telephone on 11 May 2020 and prepared reports dated 12 May 2020 (concerning fitness to plead to the arson charge), 2 February 2021 (after reviewing briefs of evidence) and 5 May 2021 (after reading Dr Le’s report). He had furnished earlier reports concerning the accused dated 17 March and 1 October 2019.

76. On 11 May 2020, the accused told Dr Nielssen:

(a) He intended to enter a plea of not guilty to the arson charge on the ground of mental impairment. He had been delusional at the time but did not want to talk about it.

(b) When interviewed by the police after the arson offence he had told them that he was fully aware of what he was doing and would do it again, which indicated his abnormal state of mind at that time.

(c) He was held in the acute area at Dhulwa but hoped to progress to the rehabilitation section soon. He had managed to stop smoking, was exercising to keep fit, was enrolled in a university pre-admission course, and hoped to obtain a driver’s license.

(d) He was “learning not to abuse [his] mother … [He had] done some really bad things to her”.

77. Dr Nielssen noted that the speech of the accused was relentless, and he was somewhat uninhibited and mildly disorganised in his speech. He was correctly oriented and demonstrated some knowledge of his legal position.

78. Dr Nielssen diagnosed schizophrenia which was chronic and partly treatment resistant, and substance use disorder (in remission). He noted that the accused’s frontal lobe impairment (schizophrenia) affected his emotional regulation and impulse control. He considered that the accused’s presentation when interviewed in May 2020 had improved since he was interviewed in 2019, reflecting a more stable medication regime and the fact that he was housed in a more therapeutic environment.

79. Dr Nielssen considered that the accused was fit to plead but had a defence of mental impairment to the arson charge. He stated:

In addition to the usual impairment in logical thinking and ability to consider the consequences of his actions arising from a severe and chronic form of schizophrenia, Mr Yeaman’s particular condition manifests in impairment in the capacity to moderate his communication and to control his actions.

80. In his report of 2 February 2021, Dr Nielssen maintained the psychiatric diagnoses of schizophrenia (chronic and treatment resistant) and substance use disorder (in remission). In relation to the events of 31 May 2020, Dr Nielssen stated:

His explanation was that it was to “teach his mother a lesson” after a heated discussion of the management of his financial affairs by the Public Trustee. However, the motive for the offence is consistent with Mr Yeaman’s enduring delusional belief that his mother had ruined his life, and is in keeping with the pattern of threats and assaults against his mother arising from those beliefs. Moreover, his actions in committing the offence demonstrate a complete lack of forethought as to the likely consequences of his actions indicating that he was deprived of the capacity to control his actions.

81. Dr Nielssen opined that the offender was severely mentally impaired on 31 May 2020. He stated:

He has a chronic and unremitting schizophrenic illness resulting in disabling impairment in his ability to identify and dismiss delusional beliefs, his capacity for logical thinking in other situations, his ability to regulate his emotional responses and his ability to control his reaction to those symptoms. … Mr Yeaman is severely impaired by his condition. This is evident in his social performance prior to incarceration, and his utterly self-defeating behaviour in custody. His behaviour is largely due to the effect of the manifestations of his mental illness, including his chronic delusional belief that his mother has somehow ruined his life. … Mr Yeaman requires indefinite treatment by multidisciplinary forensic mental health service…

82. In cross examination, Dr Nielssen repeated that the accused’s conduct had been caused by his delusional belief about his mother, resulting in a loss of self-control. He said that the accused had a pervasive and permanent disability of logical reasoning and impulse control. Retrospectively, he knew that his conduct was wrong. Usually, he could control his impulses, but he was unable to do so at the time of the incident because of his condition.

83. In his report of 5 May 2021, Dr Nielssen disagreed with Dr Le’s view that the accused’s actions were a maladaptive response consistent with borderline personality traits, rather than a manifestation of early onset schizophrenia.

84. Dr Nielssen was of the uncompromising view that the accused’s behaviour was the manifestation of schizophrenia, a neurodegenerative condition affecting the frontal lobes of the brain, which control emotional regulation, social judgement (including reality testing of false ideas), volition, planning and impulse control. Impulsivity since childhood was an early manifestation of schizophrenia, as was the behaviour said to reflect borderline personality disorder. Dr Nielssen described the accused’s persecutory beliefs concerning his mother as a “chronic delusional idea” that was a symptom of schizophrenia. He stated:

Mr Yeaman’s illness is in some ways similar to a person who has suffered a traumatic frontal lobe injury, with loss of inhibition, grossly impaired emotional regulation and an inability to control his impulses. His ability to reality test the persecutory beliefs regarding his mother is also grossly impaired.

85. Dr Nielssen discounted the accounts that the accused had given after the events in question, describing them as unreliable and likely to be “post hoc rationalisation”.

86. Dr Nielssen said that, at the time of the arson, the accused had been acutely unwell as his treatment had been suboptimal. The incident had been planned without forethought to the consequences and in the context that the accused’s disorganised thinking meant that he could not think rationally, control his impulses, or exercise social judgement.

87. In relation to the accused’s attack on his mother, Dr Nielssen noted the accused’s chronic delusional beliefs about his mother, impaired capacity to control his impulses, and the absence of forethought as to consequences.

Findings in relation to the psychiatric evidence

88. At the time of the offences, the accused suffered from early onset schizophrenia (chronic and treatment resistant) and had also been diagnosed with borderline personality traits (or, possibly, borderline personality disorder) and ADHD. There was a complex past and present interaction between the three conditions, which need not (and probably cannot) be unravelled.

89. The accused was heavily preoccupied with the “wrongs” of his mother. In that regard, his beliefs were both delusional (that she was persecuting him by controlling his mind) and somewhat rational (that she believed that, in his present condition, he was unfit to control his own personal and financial affairs).

90. The accused was able to appreciate the nature and quality of his conduct. He understood whether, from the perspective of a reasonable person, conduct was wrong. However, because of his mental conditions, his capacity to judge the likely consequences of his actions was compromised.

91. Because of his mental conditions, the accused’s ability to regulate his emotions (particularly irritability and anger) and to control his impulses was significantly reduced. However, in general, he was able to control his behaviour.

92. Statements made by the accused soon after committing the offences are relevant in two ways. First, they provide some information as to the degree to which the accused was mentally disturbed at the time of the offending conduct. Second, “admissions” that he made may be true, although they may also reflect post hoc rationalisation of conduct.

Mental impairment

93. Division 2.3.2 of the Criminal Code deals with lack of criminal responsibility resulting from mental impairment. It comprises ss 27–29.

94. Pursuant to s 29(1) of the Criminal Code, mental impairment absolves an accused person of criminal responsibility only if it has one of the s 28(1) effects. First, it must be shown that, at the time of the offending conduct, the accused “was suffering from a mental impairment”. Second, it must be shown that the mental impairment had one of the s 28(1) effects.

95. Section 27(1) defines “mental impairment” as follows:

27 Definition—mental impairment (1) In this Act: mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

96. Section 27(2) defines “mental illness” as follows:

27 Definition—mental impairment … (2) In this section: 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.

97. The definition of “mental impairment” is broad and inclusive. It is not confined to “mental illness”. Similarly, the definition of “mental illness” (one type of mental impairment) does not directly align with medical understanding of the term.

98. The broad definition of “mental impairment” reflects the view of the Model Criminal Code Officers Committee (MCCOC) which had been tasked to prepare a uniform criminal code for all Australian jurisdictions. In its July 1990 Interim Report at 103 [9.39], the Review Committee stated that any definition:

should be broad and non-technical and should embrace all forms of mental disease, disorder or deficiency which might render the accused not responsible for his or her actions.

99. To qualify as a “mental impairment” it is not necessary that a condition meet a DSM-V definition, or that it be a “mental illness” or “serious personality disorder” in the sense understood by psychiatrists. A “mental impairment” may be the result of a combination of conditions.

100. Referring to the broad definition of “mental impairment” in the Commonwealth Code, at 95 [7.3.140] Odgers in Principles of Federal Criminal Law (Thomson Reuters, 4th ed, 2019) observed:

…it is reasonably apparent that a restrictive approach should not be adopted, with the consequence that the primary mechanism for weeding out unmeritorious claims of mental impairment would be the second limb of the defence.

101. What is important is the cognitive and behavioural impacts of a mental condition (or constellation of conditions). Does the condition have significant cognitive and behavioural impacts that may render the sufferer not criminally responsible for their actions? The inquiry then focuses on whether, at the time of the offending conduct, the condition did have one of the s 28(1) effects.

102. I am satisfied on the balance of probabilities that, at the time of each incident, the accused was suffering from a mental impairment. He was suffering from a constellation of mental conditions (schizophrenia, borderline personality traits and ADHD) that, in combination, meant that his ability to regulate his emotions, impulses and behaviour was significantly reduced. Burden of proof

103. Section 28 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. (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.

104. As noted above, in this case there is a preliminary issue concerning the legal burden of proving (or negativing) the “effects” set out in s 28(1) of the Criminal Code.

105. Section 56(1) of the Criminal Code provides that the prosecution has the legal burden of proving every element of an offence. Section 56(2) states:

56 Legal burden of proof—prosecution … (2) The prosecution also has the legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof on the defendant.

106. Section 58(2) provides:

58 Evidential burden of proof—defence … (2) A defendant who wishes to deny criminal responsibility by relying on a provision of part 2.3 (Circumstances where there is no criminal responsibility) has an evidential burden in relation to the matter.

107. In s 58(7), in relation to a matter, “evidential burden” is defined to mean:

58 Evidential burden of proof—defence … (7) In this Act: evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

108. Section 59 provides:

59 Legal burden of proof—defence A burden of proof that a law imposes on the defendant is a legal burden only if the law expressly— (a) provides that the burden of proof in relation to the matter in question is a legal burden; or (b) requires the defendant to prove the matter; or (c) creates a presumption that the matter exists unless the contrary is proved. (emphasis added)

109. In relation to the first s 29(1) matter to be established—“mental impairment”—s 28(5) provides that the s 28(4) presumption that a person is not suffering from a mental impairment is displaced only if a party proves on the balance of probabilities that the person was suffering from a mental impairment. Section 59(b) and (c) confirm that an accused person who asserts “mental impairment” bears a legal burden to prove on the balance of probabilities that, at the time of the offending conduct, they were suffering from a “mental impairment”. The parties agreed that this was the proper approach; it is for an accused person who relies on the existence of “mental impairment” to prove it.

110. It was in relation to the second matter informing criminal responsibility—whether the mental impairment had a s 28(1) effect—that the parties disagreed.

111. The parties accepted that s 58(2) and (7) of the Criminal Code cast an evidential burden on an accused person to point to evidence suggesting a reasonable possibility that a relevant mental impairment had a s 28(1) effect. However, the defence submitted that, once the evidential burden was satisfied, the legal burden shifted to the prosecution. The prosecution submitted that it bore no legal burden; it was for the defence to prove on the balance of probabilities both that the accused had a “mental impairment”, and that the impairment had a s 28(1) effect.

112. In support of its contention, the prosecution made the following submissions.

(a) The Criminal Code is largely a codification of the common law defence of insanity, the 1843 M’Naghten Rules. At common law, the defence carried the legal burden of establishing insanity. In its final report in December 1992 at 39 [302.2], the MCCOC observed that, in all jurisdictions, the defence bore the burden of proving the insanity defence on the balance of probabilities

(b) If the legislature had intended to dramatically change the common law, there would have been a reference to the change and the reason for the change in the Explanatory Statement or parliamentary debate. There was no such reference.

(c) It is unworkable to cast a legal burden on the prosecution to negate beyond reasonable doubt the proposition that a mental impairment had a s 28(1) effect. Psychiatry is an inexact science in relation to which reasonable and well-qualified experts may disagree, making it very difficult for the prosecution to establish the suggested negative proposition (really, three propositions) to the standard of beyond reasonable doubt.

(d) The legislation is ambiguous as to where the legal burden lies. Consequently, s 139 of the Legislation Act 2001 (ACT) requires a purposive approach to interpretation. Applying a purposive approach, the legal burden lies on the defence.

(e) In cases of ambiguity affecting basic criminal law principles, it is desirable that there be consistency across Australian codes and between Australian jurisdictions: R v Barlow (1997) 188 CLR 1 at 32 per Kirby J. The Criminal Code should be interpreted in a manner that is consistent with the Criminal Code Act 1995 (Cth) (Commonwealth Code), i.e. as casting the legal burden on the defence.

113. The prosecution referred to R v Pahl [2017] ACTSC 68. In that case, the central issue was whether the accused’s psychotic state at the time of the offending conduct reflected a “mental impairment”. The accused contended that he suffered from mild neurocognitive disorder or “mental impairment” that made him more vulnerable to becoming psychotic under the influence of alcohol. I was not satisfied that the accused suffered from a mild neurocognitive disorder. I found that his psychotic behaviour had been the reaction of a relevantly healthy mind to the external stimulus of alcohol: at [152]. It was accepted that the accused had to show on the balance of probabilities both that he suffered from a “mental impairment” and that the mental impairment had a s 28(1) effect: at [99]. However, in the event, the Court did not need to decide which party was responsible for proving that a mental impairment had a s 28(1) effect. Consequently, the decision is of limited assistance in this case.

114. The provisions of the Criminal Code were enacted after the equivalent provisions in the Commonwealth Code. Both codes are based on the recommendations of the MCCOC.

115. While s 28 closely follows s 7.3 of the Commonwealth Code, it does not mirror the Commonwealth Code. Section 28(1) is the same as s 7.3(1) of the Commonwealth Code and s 28(3) is the same as s 7.3(2) of the Commonwealth Code. However, s 28(4) and (5) of the Criminal Code differ from s 7.3(3) of the Commonwealth Code, which provides:

7.3 Mental impairment … (3) A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment. (emphasis added)

116. In the Commonwealth Code, the reference to “such a mental impairment” clearly refers to the limited class of mental impairment that is the subject of s 7.3(1), i.e. a mental impairment that has a relevant effect. Section 13.4 of the Commonwealth Code is identical to s 59 of the Criminal Code; it provides that, where a law expressly creates a presumption that a matter exists until the contrary is proved, the legal burden lies on the defendant.

117. As Penfold J observed in R v Mason [2019] ACTSC 161 (Mason) at [72]–[73]:

118. In short, the Commonwealth legislation clearly applies the presumption in s 7.3(3) to both parts of the mental impairment test, and accordingly s 13.4 of the Commonwealth Code imposes a legal burden on the defence in respect of both aspects of the mental impairment defence. 73. The ACT version of the provision, on the other hand, says nothing to indicate that the s 28(4) presumption applies not just to mental impairment as defined in s 27 but also to the effects of mental impairment described in s 28(1). (emphasis in original)

119. In Mason, Penfold J referred to DPP v Scheele [2016] ACTCA 23 (Scheele) in which the Court of Appeal had referred to the principle of statutory construction that the court will not disregard the clear words of the legislative provision thereby extending the scope of criminal liability, even if it thinks that the clear words reflect inadvertence or error. At [75], her Honour continued:

In this case the relevant provisions of the Criminal Code relate to burdens of proof rather than to criminal liability directly. However, the imposition of a burden of proof on the defendant in a criminal matter may have a significant impact. Accordingly, it seems to me that the principal identified by the Court of Appeal in Scheele would also be offended in this case by reading a provision that has been deliberately altered by the legislature in a grammatically significant way as if, despite that alteration, it imposed the same, heavier, burden of proof on a defendant in a criminal case as was effectively imposed by the original version of the provision.

119. Penfold J’s remarks were obiter, but her Honour was inclined to the view that s 59 of the Criminal Code should not be read as imposing a legal burden on the defence in relation to the “effect” part of the mental impairment test: [76], [637].

120. Section 28(4) expressly creates a presumption that a person was not “suffering from a mental impairment” and s 28(5) expressly addresses the s 28(4) presumption. However, s 28 does not expressly create a presumption that a “mental impairment” has no s 28(1) effect. An accused has a legal burden only if the law expressly says so, expressly requires the accused to prove the matter, or expressly creates a presumption that the matter exists unless the contrary is proved.

121. Consequently, while s 58(2) creates an evidential burden, s 59(c) does not operate to impose a legal burden on an accused person to prove on the balance of probabilities that a mental impairment had a s 28(1) effect. It is for the prosecution to negative the possibility that, at the time of offending conduct, a mental impairment had any s 28(1) effect.

122. For the reasons advanced by the prosecution, it is very likely that the legislature intended that the defence would bear the legal burden of proving that a mental impairment had any s 28(1) effect. However, the words of the Criminal Code fail to give effect to such an intent.

123. Consequently, in relation to each of the offences of arson and causing grievous bodily harm, the prosecution bore the burden of proving beyond reasonable doubt that the accused’s mental impairment:

(a) did not have the effect that the accused did not know the nature and quality of the conduct (lighting the fire or delivering the blow);

(b) did not have the effect that the accused did not know that the conduct was wrong (could not reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, was wrong); and

(c) did not have the effect that the accused could not control the conduct.

Mental impairment and offence of arson

124. As stated above, the parties accepted that s 58(2) and (7) of the Criminal Code cast an evidential burden on an accused person to point to evidence suggesting a reasonable possibility that a relevant mental impairment had a s 28(1) effect.

125. There was no evidence that the accused did not know the nature and quality of his conduct on 21 October 2019. As to this effect, the defence has not satisfied the evidential burden.

126. In any event, as to the arson offence, I am satisfied beyond reasonable doubt that the accused knew the nature and quality of his conduct and there is no reasonable possibility that he did not know the nature and quality of the conduct. The accused deliberately created two piles of flammable material and covered a vent in the ceiling to prevent smoke activating the sprinkler system. He then ignited the flammable material using a cigarette lighter. Having ignited the fire, he immediately summonsed help via an intercom system, saying “I have lit a fire”. These are not the actions of someone who does not know the nature and quality of their conduct of lighting a fire. As the accused told the police on the following day:

I just got a lighter and burnt the place. Grabbed a bunch of stuff, burnable stuff, and burnt it.

127. There was little if any evidence suggesting that the accused did not know that the conduct was wrong, as seen by reasonable people.

128. In any event, I am satisfied beyond reasonable doubt that the accused did know that the conduct was wrong; he could reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, was morally wrong and there is no reasonable possibility that he failed to reason that the conduct would be regarded as morally wrong. As he told the police, he understood that the fire would cause damage by burning. Immediately after lighting the fire, he called for help. He undertook the conduct because it was wrong, and it would therefore attract attention to his plight, operating as “protest” against the extent to which others controlled his life. While the accused’s reasoning was somewhat bizarre, that does not diminish the fact that he knew that the conduct itself was regarded as wrong by reasonable people.

129. There was evidence that the accused’s mental impairment affected his ability to regulate his emotions and behaviour.

130. However, the “effect” that is the subject of s 28(1)(c) is “could not control the conduct”; it is not “had difficulty controlling the conduct”.

131. I note that, in the July 1990 Interim Report of the MCCOC at 103 [9.38], the Review Committee discussed the utility of retaining an “effect” that addressed inability to control conduct. The Committee observed that it may be difficult to distinguish between an irresistible impulse and one that is simply not resisted, and continued:

The view has also been expressed that it is rarely the case that a person is deprived of all capacity to control his or her actions and that in genuine cases of uncontrollable conduct the defendant will almost invariably display a level of irrationality sufficient to amount to lack of knowledge within the accepted meaning of the McNaghten Rules. On the whole, the Review Committee is disposed to think that …irresistible impulse should not be a separate test.

132. This view was not adopted in the Final Report: at [302]. However, the discussion in the Interim Report concerning whether “could not control conduct” should be included as an “effect” made it clear that “could not control the conduct” refers to “no ability to control conduct” rather than significantly reduced ability to control conduct.

133. I am satisfied beyond reasonable doubt that the accused was able to control the conduct of lighting the fire. The lighting of the fire was not an act of “uncontrollable impulse”. The accused chose to light the fire, appreciating that he could have made another choice. There was a degree of planning associated with the fire, albeit planning based on bizarre reasoning. On the day before the offence, he said that he was considering lighting a fire as a protest. The conduct occurred only after the accused had piled flammable material together and covered the ceiling vent. The circumstances establish that the conduct was not purely impulsive.

134. In relation to the offence of arson, I decline to return a special verdict.

Mental impairment and offence of causing grievous bodily harm

135. There was no evidence that the accused did not know the nature and quality of his conduct on 31 May 2020. As to this effect, the defence has not satisfied evidential burden.

136. Although his mother perceived that the accused’s condition during the visit was fragile and deteriorated as the visit progressed, the CCTV footage shows that he was outwardly calm before the outburst in which he assaulted his mother. As he told police three weeks later:

I decided to punch mum in the head three times, um, because she had decided to walk away

137. The degree to which the accused was psychologically disturbed fell far short of a condition in which he did not know the nature and quality of his conduct.

138. Further, I am satisfied beyond reasonable doubt that the accused knew that his conduct was wrong. A few weeks earlier he had told Dr Nielssen that he was:

learning not to abuse [his] mother … [He had] done some really bad things to her

139. After the incident, he told police that he “was not happy” about what he had done.

140. On the day in question and prior to the incident, the accused appeared to be generally settled and he was focused on his gym activities. He concluded the incident, walked away calmly and allowed himself to be taken into the care of security staff. On the following day, he expressed regret for the assault. Two days later, on 2 June 2020, he expressed remorse and feelings of guilt.

141. However, the prosecution has not negatived the reasonable possibility that the accused’s mental impairment had the effect that he could not control his conduct. The accused was morbidly preoccupied with thoughts that his mother dictated and had ruined his life. Immediately before the assault, the conversation turned to the issue of financial control of the accused’s affairs. Sensing that the accused was becoming increasingly irrational, and that the situation was getting out of hand, his mother decided to leave. The accused exploded with rage. The period from when the accused was seated and outwardly calm to when he terminated the vicious assault was only five seconds.

142. The accused’s mental impairment means that his impulse control is significantly compromised. There is at least a reasonable possibility that the accused’s somewhat delusional preoccupation with his mother overwhelmed him and inflamed his rage to such an extent that he was completely unable to control his conduct during the five second period of the attack.

Verdicts

143. I enter the following verdicts. (a) Count 1 (arson): Guilty.

(b) Count 2 (intentionally inflict grievous bodily harm): Not guilty.

(c) Alternative to Count 2 (recklessly inflict grievous bodily harm): Not Guilty

(d) Statutory alternative to Count 2 (cause grievous bodily harm): Special verdict of not guilty because of mental impairment.

I certify that the preceding one hundred and forty-three [143] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date: **************

Amendments

19 October 2021 Insert “a” to read “either a usual verdict” Paragraph: [7] Replace “is disrespectful” with “as disrespectful” Paragraph: [48] Replace “How me times” with “How many times” Paragraph: [49] Replace “blow in the injury” with “blow and the injury” Paragraph: [58] Replace “Neilssen” with “Nielssen” Paragraph: [71] Delete “in respect” from “in respect in respect Paragraph: [117] Replace “is defined” with “as defined” Paragraph: [117] Delete “the” from “despite the that alteration” Paragraph: [118] Replace “by reasonable” to “by a reasonable” Paragraph: [128]