R v Porter [1933] HCA 1; (1936) 55 CLR 182, R v Falconer (1990) 171 CLR 30, Hawkins v The Queen [ 1994] HCA 28; 179 CLR 500 followed.

Judgment Number: [2025] TASSC 53

1. The accused, Fraser Scott, is charged on indictment with one count of aggravated assault contrary to the Criminal Code, s 183. He pleaded not guilty. In accordance with an order made under s 361AA of the Code, I conducted the trial as a single judge in place of a trial by jury.

1. Mr Scott is presumed to be innocent until the prosecution proves his guilt to my satisfaction beyond reasonable doubt. The prosecution must prove that Mr Scott committed the act or acts, accompanied by the required state of mind, which constitute the crime of aggravated assault.
2. It is accepted by both the prosecution and defence that, if the acts which constitute the crime of aggravated assault are proved, the question arises of whether Mr Scott is criminally responsible for those acts by reason of mental disease: Criminal Code, s 16. He is presumed to have been of sound mind at the time that he committed the relevant acts unless the contrary is proved: the Code, s 15. He bears the onus of establishing that he is not criminally responsible on the ground of insanity, although the onus may be discharged on the evidence presented by the prosecution: the Code, s 381. The standard of proof is on the balance of probabilities: the Evidence Act 2001, s 141(2).
3. The prosecution evidence of the events of 4 August 2023 is comprised in a series of agreed facts. The accused did not give evidence but adduced evidence from an expert witness about his mental state at the relevant time.

1. The indictment alleges that on 4 August 2023, Mr Scott unlawfully assaulted the complainant, a young female, by pointing a firearm at her. Any person who unlawfully assaults another is guilty of a crime: the Code, s 184. It is not alleged that Mr Scott applied force or attempted to apply force to the complainant. The prosecution case is that he assaulted her by threatening by gesture to apply force to her by pointing a firearm or something which appeared to be a firearm at her, within the definition of assault in s 182. The crime of aggravated assault is created by s 183. Mr Scott is charged with aggravated assault because the Firearms Act 1996, s 115, provides that a person is guilty of a crime under s 183 of the Code if, during the course of an assault, the person carrying out the assault uses, threatens to use or was carrying a firearm or toy firearm.
2. A person commits the crime of aggravated assault if it is proved beyond reasonable doubt that:

(a) the accused;

(b) by a voluntary act or acts;

(c) made a threatening gesture to apply force to another person by pointing a firearm or toy firearm;

(d) at the time of the gesture, the accused used, threatened to use or was carrying a firearm;

(e) the accused:

i had the present ability to apply force to the other person; or

1. caused the other person to believe, on reasonable grounds, that he had the present ability to apply force; and

(f) the acts were unlawful; and

(g) at the time of the acts, the accused either:

1. intended to threaten the other person, that is, give some sort of indication that he may use the firearm to apply force; or
2. realised that the likely consequence of his actions was that the other person would apprehend that force was being threatened and proceeded regardless of the consequence.

7 At about 5.15 am on 4 August 2023 the complainant was working at McDonalds in Devonport. She was aged 19. A car driven by Mr Scott pulled in to the drive through. An unknown male was sitting in the passenger seat. At the first window Mr Scott stopped and ordered food which he paid for in cash. He then drove to the collection window where the complainant was working. At that window Mr Scott presented a black firearm, I infer a hand gun, which the prosecution does not dispute was a toy. He pointed the toy firearm at the sky and tapped it on the top edge of the window frame. As the complainant approached the window with the food she saw what Mr Scott was holding. He reached out and grabbed the food quickly with his left hand while, with his right hand, holding the firearm and pointing it at the complainant. The complainant thought it was a real gun, was very frightened and believed she may be shot. She had forgotten the drinks order. Not sure what to do, she retrieved the drinks and returned to the window. By that time the firearm had been given to the passenger, who held it near his stomach pointed towards the complainant. One of the males said "she's scared, she's a woman". The car remained at the window for a short time. A manager noticed that the complainant was upset and approached the car, at which time Mr Scott drove away.

1. The facts which Mr Scott agrees to be true establish to my satisfaction beyond reasonable doubt that Mr Scott's gestures were voluntary and intentional acts which constituted a threat to apply force to the complainant with the firearm, and that the complainant believed on reasonable grounds that he had the present ability to effect that purpose. I am satisfied beyond reasonable doubt that he has committed the acts charged in the indictment which would constitute the crime of aggravated assault.

1. The expert evidence of Mr Scott's mental state comes from Dr Georgina O'Donnell, who has a PhD in psychology with dual specialist endorsements as a Forensic and Clinical Psychologist. Dr O'Donnell has treated and assessed perpetrators and victims of crime since 1977 and has undertaken regular post graduate professional development. Dr O'Donnell's evidence is in the form of a report dated 11 November 2024. She inspected CCTV footage of the crime, watched three police body worn camera files of Mr Scott's arrest, inspected the Tasmanian Health Service records concerning Mr Scott including emergency and ambulance records, records of Mental Health Services and the Spencer Clinic. She interviewed Mr Scott on 28 October 2024.
2. Mr Scott is currently aged 49. At the relevant time he was 47. In Dr O'Donnell's opinion, Mr Scott suffers from bipolar disorder with manic episodes and psychosis. After leaving school Mr Scott joined the Air Force at age 19. Even then, his condition adversely affected his employment. He first received treatment for his mental health in his early 20's in Western Australia. He spent 13 years working as a civilian on Christmas Island. More recently he held employment as an aged care support worker. His duties included to drive the community bus. He currently lives independently and receives a disability support pension based on his mental health. He has three adult daughters.
3. Dr O'Donnell reported that between 1999 and 2024 Mr Scott required involuntary treatment under the Mental Health Act on numerous occasions. When experiencing active episodes of mental illness his symptoms included manic mood and erratic behaviour, pressured and tangential speech, pacing and restlessness, hyper arousal, lack of sleep, thought disorder, delusional beliefs, disorientation, heightened irritability and aggression, contradictory behaviours and tearfulness. He has been treated for many years with various combinations of anti-psychotic and mood stabilising medications, including by regular injection. At times his symptoms are so severe, and the risk to himself and others is such, that mechanical and chemical restraint is required. He is subject to a treatment order supervised by the Tasmanian Civil and Administrative Tribunal. His compliance and engagement with mental health treatment fluctuates with his mental state. He lacks insight into his illness and the need for assertive treatment when he is acutely unwell.
4. During the period leading up to and shortly following 4 August 2023, Mr Scott was admitted to the Spencer Clinic, the inpatient mental health service at the North West Regional Hospital from 8 to 19 July 2023, 6 to 18 August 2023 and 24 August to 15 September 2023. Thus, as Dr O'Donnell points out, within days of the incident at McDonalds, Mr Scott was receiving involuntary mental health care in the high dependency unit of the Spencer Clinic, where it was documented that he was experiencing a manic episode.
5. As to the events of 4 August 2023, Dr O'Donnell reported that Mr Scott told her had had limited recollection of the incident, and that he had no intention to cause harm to anyone. He acknowledged that "he may not have been thinking clearly as he knows he was manic at the time." He said that he had purchased a toy gun for a fancy dress party at the aged care facility, which may have been in his car.

1. Mr Scott could not be guilty of aggravated assault unless the prosecution proves that the act for which he is criminally responsible was done either with intent to threaten or with a realisation that a threat may be perceived. The evidence of mental disease is relevant to a determination of whether his act was done with either state of mind. If the evidence is not sufficient to prove that the mental disease produced any of the consequences prescribed by s 16(1)(a) or (b) it becomes necessary to consider the evidence of the formulation of intent. Evidence of mental disease remains relevant and admissible to that issue: Hawkins v The Queen [1994] HCA 28; 179 CLR 500. However, the issue of insanity is to be determined before any issue of intent: Hawkins at 517 per the joint judgment of Mason CJ, Brennan, Deane, Dawson and Gaudron JJ; Ward v R [2000] WASCA 413; 23 WAR 254.
2. Thus, the first question is what did the accused do, and is he criminally responsible for doing it.
3. The Code, s 16(1) provides:

"(1) A person is not criminally responsible for an act done or an omission made by him -

(a) when afflicted with mental disease to such an extent as to render him incapable of:

(i) understanding the physical character of such act or omission; or

(ii) knowing that such act or omission was one which he ought not to do or make; or

(b) when such act or omission was done or made under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist.

(2) The fact that a person was, at the time at which he is alleged to have done an act or made an omission, incapable of controlling his conduct generally, is relevant to the question whether he did such act or made such omission under an impulse which by reason of mental disease he was in substance deprived of any power to resist.

(3) A person whose mind at the time of his doing an act or making an omission is affected by a delusion on some specific matter, but who is not otherwise exempted from criminal responsibility under the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the fact which he was induced by such delusion to believe to exist really existed."

1. I am satisfied that bipolar disorder is a mental disease within the meaning of s 16 and that Mr Scott was afflicted with that condition when he pointed the toy gun at the complainant. I direct myself in accordance with the comments of King CJ in R v Radford (1985) 42 SASR 266, as approved by Mason CJ, Brennan and McHugh JJ in R v Falconer [1990] HCA 49; 171 CLR 30 at 53. However, the existence of a mental disease by itself does not excuse an accused person. In Hitchens v The Queen [1962] TASStRp 6; [1962] Tas SR 35 , the Court of Criminal Appeal comprising Burbury CJ, Crisp and Cox JJ said at 49:

"It was for the accused affirmatively to establish to the satisfaction of the jury that upon the balance of probabilities he by reason of mental disease was not criminally responsible for his acts. For the mere existence of mental disease would not excuse him from criminal responsibility. Nor was it sufficient for him to prove that his alleged crime was the product of mental disease in the sense that it would not have occurred but for the existence of the disease. ...The law prescribes additional criteria to be established by evidence as a condition of criminal responsibility. An act may be a crime although the mind of a person who does it is affected by mental disease if such disease does not in fact produce upon his mind one of the results prescribed by the law as tests of criminal responsibility." (Citations removed)

1. In terms of s 16, Dr O'Donnell does not assert that the mental disease with which Mr Scott was afflicted at the time he threatened the complainant with the gun rendered him incapable of understanding the physical character of the act of pointing a gun at a person. As a result, s 16(1)(a)(i) of the Code has no operation. However, in Dr O'Donnell's opinion, s 16(1)(a)(ii) and s 16(1)(b) both apply. Counsel for both the prosecution and defence submitted that I should find that Mr Scott is not criminally responsible for the crime of aggravated assault by operation of s 16 of the Code. Counsel for the prosecution did not seek to draw any distinction between the operation of s 16(1)(a)(ii) and s 16(1)(b).

Section 16(1)(a)(ii) is made out but section 16(1)(b) is not

1. The evidence supports the conclusion that Mr Scott is exempted from criminal responsibility under s 16(1)(a)(ii). Accepting that Mr Scott is exempted from criminal responsibility under that provision, there is no room for the operation of s 16(3). The evidence does not support the conclusion that Mr Scott is absolved of criminal responsibility by operation of s 16(1)(b).
2. For s 16(1)(a)(ii) to apply, Mr Scott must establish that, when he was holding the gun and pointing it towards the complainant, he, by reason of his bipolar disorder, was incapable of knowing that his acts were ones he ought not to do. For s 16(1)(b) to have operation it must be established that Mr Scott's acts were in fact done under an impulse, and it was an impulse which, by reason of mental disease, he was, in substance, deprived of any power to resist: Hitchens at 55-56.
3. In her report, Dr O'Donnell expressed her opinion about s 16(1)(a)(ii) by stating her opinion that "Mr Scott acted impulsively during an acute phase of mental illness". She continued that "Mr Scott's general conduct on the day of the alleged incident was significantly influenced by his acutely mentally unwell state". In her report, Dr O'Donnell expressed her conclusion about s 16(1)(b) by saying that the provision applies because "Mr Scott's major illness resulted in acutely impaired judgment and insight at the time of the alleged incident." With respect to Dr O'Donnell, that evidence, even when read with the balance of her report, does not support the conclusion that either of those limbs of s 16 operated to absolve Mr Scott of criminal responsibility for his acts. For that reason, I gave leave for the accused to re-open his defence case and Dr O'Donnell gave some further oral evidence.
4. I will first address s 16(1)(b). The degree of impairment of volition required under that sub-section was addressed by the High Court in O'Neal v The Queen [1977] HCA 24; 141 CLR 496 where Barwick CJ and Mason J, with who Stephen and Aickin JJ agreed, held at 500 that to succeed in a defence under that sub-section "the defence must satisfy the jury on a balance of probabilities that, due to mental disease, the accused had lost all power to resist: that mental disease had left him with no power of resistance to the impulse to do the fatal act." Further, their Honours held that it is correct to say that it is for an accused to establish that "at the time he did that of which he is accused he was to all intents and purposes wholly unable by reason of mental disease to resist the impulse to do that act." It must be established that he could not resist the impulse, not just that he did not resist the impulse: see also Jeffrey v The Queen [1982] TASRp 20; [1982] Tas R 199.
5. As to the assertion in her report that Mr Scott acted "impulsively", Dr O'Donnell identified the "impulse" as "the posturing with the toy gun and the way in which he did that". She concluded that this was an impulse because "there was no logical reason to threaten or intimidate the food worker, having already paid and ordered the food..." and it was illogical for him to do so. I asked Dr O'Donnell again to identify what impulse she was referring to and she again referred to his possession of, and gesturing with, the toy gun, causing fear and intimidation for the complainant, and the action was "in a state of being erratic, expansive, grandiose, not having control of his [racing] thoughts, sleepless" and that it was an impulse in his manic state he could not resist.
6. Even supplemented by oral evidence and notwithstanding the terms of s 16(2), Dr O'Donnell's evidence, though not challenged by the prosecution, falls far short of establishing to my satisfaction that Mr Scott acted under an impulse at all, still less that there was an impulse he could not resist. I would accept that Mr Scott's mental illness may have caused him to act in a stupid, ill-judged, and impulsive way, in the sense that he acted without any pre-planning and on the spur of the moment, and that his acts lacked any logical foundation. However, Mr Scott had no recollection of the incident. He said nothing about, and gave no evidence of, any impulse in the sense that he was somehow impelled to do what he did and, in my respectful view, Dr O'Donnell's evidence does not establish the existence of any such impulse. The inference that there was such an impulse must be based on conjecture. Even if Mr Scott acted on the basis of an impulse there is no evidence from which I would infer that he could not, as opposed to did not, resist it.
7. As to the operation of s 16(1)(a)(ii), I direct myself in accordance with the charge to the jury given by Dixon J in R v Porter [1933] HCA 1; (1936) 55 CLR 182, stated and applied by Brett J in Tasmania v Smyth [2022] TASSC 50 at [24]:

"We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people."

1. Accordingly, Mr Scott must establish that he was, at the relevant time, affected by symptoms of bipolar disorder to such an extent that he was rendered incapable of knowing that pointing the gun at the complainant was an act he ought not do. He must demonstrate that, through the disordered condition of his mind, he was incapable of reasoning, with a moderate degree of sense and composure, that it was, having regard to the everyday standards of reasonable people, wrong to point the firearm at another person. The opinion in Dr O'Donnell's report that Mr Scott's illness resulted in acutely impaired judgment and insight, falls far short of establishing that he was incapable of reasoning that his act was wrong in that sense. However, I have concluded that the further oral evidence sufficiently established that proposition.
2. Dr O'Donnell took into account the evidence of what occurred, Mr Scott's mental health history including the fact that he was detained in a highly manic state only two days after this event, and formed the view that at the relevant time the symptoms of his mania were indicative of frontal lobe dysfunction. The neurological effects of his manic episode were such that, in Dr O'Donnell's opinion, Mr Scott did not have the decision-making capacity to appreciate that his actions would be quite threatening and frightening for someone who did not know what his intentions were. His social comprehension, judgment, decision-making and insight were lacking. According to Dr O'Donnell, Mr Scott, in that state, presented a risk to himself and others.
3. I confess to some hesitation about this evidence. The question of whether Mr Scott was, by reason of his bipolar disorder, incapable of knowing that the act of pointing a toy gun at another person was something he ought not to do was not squarely addressed. However, I am satisfied that the evidence of Dr O'Donnell about the nature of Mr Scott's condition and its likely effect on his actions, was sufficient to establish that proposition on the balance of probabilities. I take into account the absence of any adverse expert opinion and the prosecution's acceptance of Dr O'Donnell's opinion.

1. On the charge of aggravated assault contrary to s 268 of the Criminal Code, brought on indictment 165/2025, I return the following verdict, in the terms required by s 383(2) of the Code:

Mr Scott committed the acts charged, but is not guilty, on the ground that he was insane at the time so as not to be responsible according to law.