Criminal Code Act 1924 (Tas) ss 16, 184, 361AA, 381.

R v Porter [1933] HCA 1, [1936] 55 CLR 182, The Queen v Falconer (1990) 171 CLR 30, followed.

Judgment Number: [2025] TASSC 15

1. The accused is charged on indictment with one count of assault contrary to s 184 of the Criminal Code. He has entered a plea of not guilty. In accordance with an order made by me pursuant to s 361AA of the Criminal Code, I conducted the trial as a single judge in place of a trial by jury.

1. The accused is entitled to the presumption of innocence. Accordingly, he is presumed to be innocent of this crime unless and until I am satisfied beyond reasonable doubt as to his guilt. The prosecution has the burden of proving the guilt of the accused beyond reasonable doubt.
2. In this case, it is common ground that if I am satisfied beyond reasonable doubt that the accused committed the act which is alleged to constitute the crime charged in the indictment, then the question of insanity arises on the evidence in respect of the accused's criminal responsibility for that act. By s 15 of the Criminal Code, the accused is presumed to have been of sound mind at the time that he committed the relevant act, until the contrary is proved. The onus of establishing that he is not criminally responsible for the act on the basis of the insanity provisions of s 16, accordingly falls on the accused. It can, however, be established on the evidence presented by the prosecution, s 381 of the Criminal Code. The standard of proof is on the balance of probabilities, see s 141(2) of the Evidence Act 2001.

1. The indictment alleges that the accused unlawfully assaulted his cousin, Keira Rigby on 9 September 2022, by grabbing her around the neck with one hand, applying pressure and holding a knife to her throat. There is no dispute that he committed these acts. The evidence as to this in the prosecution case, consisted entirely of agreed facts, statutory declarations of witnesses admitted by consent and not challenged by the defence, and other exhibits admitted by consent. The accused did not give evidence, but he adduced psychiatric evidence concerning the question of insanity.
2. The evidence so adduced establishes to my satisfaction beyond reasonable doubt, the following facts. On the said date, the accused was at his father's home, where he lived with his parents and the complainant. He started to drink alcohol in his bedroom in the morning. At around 12 pm, the complainant heard him in his bedroom yelling, screaming and speaking in strange voices. She says that this is a regular occurrence when he consumes alcohol. At around 1:15 pm, the complainant left the house for a short time. When she got home a short time later, the accused was in the lounge room playing music. He seemed happy and in good spirits. He then returned to his bedroom. Sometime later, the complainant was in the adjacent bedroom, and heard the accused "mumbling about God and people coming after him". When she left that room to return to the lounge room, she heard the accused say "Don't walk away from me, I'll kill you". The accused then followed the complainant into the lounge room, making comments to the effect that the Benevolent Society, a charity that the complainant had visited the day before, was sending people to kill him. He also falsely accused the complainant of having sexual intercourse in his daughter's bed, and continued to verbally abuse her. He told her that he was going to "slaughter" her because of it. The complainant was sitting on a couch in the lounge room at the time. The accused then put his right hand around the complainant's throat, pushing her backwards and at the same time, put a knife that he was holding at her throat and held it there. He was continuing to scream abuse at her while he was doing this. The complainant described the force that was used with his hand around her throat as initially 8 out of 10, but reducing it to 6 out of 10, after he pushed her backwards. The complainant's aunt then intervened and there was a confrontation between the accused and her, during which the complainant escaped from the house, ran to her vehicle and drove to a location from which she contacted police. All of this is described in statutory declarations of the complainant which were placed in evidence. Her version is corroborated by the accused's father in a statutory declaration by him.
3. Police eventually attended the premises and after a lengthy stand-off, during which the accused barricaded himself in his bedroom, he was arrested by them. Police located a knife in his bedroom which was identified by the complainant and the accused's father as the knife held by the accused to the complainant's throat.
4. The accused does not challenge the complainant's version of events. I am satisfied beyond reasonable doubt that he assaulted her in the manner alleged. There is clearly no room for any suggestion that the application of force involved in the said assault was lawful and the accused did not claim that it was.
5. It follows that I am satisfied beyond reasonable doubt that the accused has committed the acts charged in the indictment, which but for the effect of s 16 on the criminal responsibility of the accused for those acts, would constitute the crime of assault contrary to s 184 of the Criminal Code.

1. As already noted, the accused does not contest the version of events set out above but claims that he is not criminally responsible for the assault having regard to the provisions of s 16 of the Criminal Code. He did not give evidence, but some psychiatric and psychological reports were tendered on his behalf. I also heard oral evidence from Dr Georgina O'Donnell, the author of one of the reports. Dr O'Donnell is a registered psychologist, with considerable expertise in clinical and forensic psychology.
2. The psychiatric reports that were tendered were prepared by psychiatrists engaged by the Chief Forensic Psychiatrist for the purpose of an investigation commenced by me under the Criminal Justice (Mental Impairment) Act 1999, in respect of the fitness of the accused to stand trial for this charge. The reports were prepared while the accused has been an inpatient of Wilfred Lopez Centre (WLC). His custodial history is complicated, but suffice to say, according to the reports, he has been in custody since his arrest on 29 October 2023, on unrelated charges. He was admitted to WLC on 9 November 2023, after being found to be "floridly psychotic" and exhibiting other symptoms of mental illness while in custody on remand. He has been there ever since. The psychiatric reports were prepared by psychiatrists involved in his treatment, and were provided to me as background information concerning the accused's mental health, and also because Dr O'Donnell has read and relied upon the contents of those reports.
3. The first report is dated 29 April 2024 and was prepared by Dr Kadiveti, a consultant psychiatrist. Dr Kadiveti describes the accused as having a lengthy history of mental health treatment, including admissions to hospital dating back to 2018. There is a consistent history of psychotic and cognitive symptoms, including paranoid delusions, and past diagnosis of schizophrenia. The author states that as at the date of the report, the accused is "experiencing a severe and complex case of mental illness, treatment resistant schizophrenia, characterised by persistent psychotic symptoms, including delusions, hallucinations, markedly impaired psychosocial functioning and significant cognitive impairment." It is noted that the accused has had "various treatments including antipsychotic and mood stabiliser medications and electroconvulsive therapy". He was being treated at the time of the report in the prison hospital by anti-psychotic medication. On the fitness issue, the psychiatrist concluded that, at that time, the accused was unfit to stand trial.
4. I was also provided with a report dated 26 August 2024 by another forensic psychiatrist, Dr Kylie Lloyd. Dr Lloyd described herself as the accused's treating consultant psychiatrist since 25 February 2024. This report provided information in respect of the accused's mental health history consistent with that already described. Dr Lloyd noted "an established diagnosis of schizophrenia, substance use disorder". Dr Lloyd considered that the accused was fit to stand trial provided that appropriate remediation measures were taken during the hearing. The fitness investigation was terminated after the receipt of that report.
5. Dr O'Donnell's opinion as expressed in her report and oral evidence, relies on the accused's documented mental health history and prior formal diagnosis of treatment resistant schizophrenia. This is consistent with the information in the psychiatric reports. Dr O'Donnell's opinion as to the question of the accused's criminal responsibility under s16 in respect of the alleged crime, can be summarised as follows:

(a) Although the accused was affected by alcohol at the time of commission of the crime and has a history of substance use, "there is also clear evidence that he was experiencing the symptoms of paranoid psychosis at the time". These are experienced independently of the effects of the alcohol and other substances and Dr O'Donnell notes that the symptoms have persisted during his time at the WLC. She was of the opinion that he was experiencing the psychosis as a symptom of mental disease, in particular the treatment resistant schizophrenia, at the time of the offending.

(b) The mental illness rendered the accused incapable of knowing that the acts constituting the assault were ones which he ought not do. His "verbally expressed ideation...provides evidence that he was acting under paranoid delusions and was experiencing self-harm and violent ideation". The paranoid delusions had left him incapable of reasoning in a sensible way as to whether his actions were right or wrong. His capacity for judgement had also been markedly impaired.

(c) As to s 16(1)(b), Dr O'Donnell is of the opinion that the symptoms had resulted in an impulse for the accused to act as he did, and that the mental illness had deprived him of the power to resist this impulse.

(d) Dr O'Donnell is of the opinion that s 16(3) is not relevant because the accused was incapable of reasoning in a way that would mean that he would know that the acts were ones he ought not do. Under questioning by me, she explained that the constellation of psychotic symptoms arising from the schizophrenia, which included paranoid delusions and auditory hallucinations, went well beyond being able to reason in the manner contemplated by s 16(3).

(e) I raised with Dr O'Donnell the evidence as to the accused's intoxication and its apparent association with the onset of symptoms. The psychologist reaffirmed that the symptoms of schizophrenia exist and are experienced by the accused independently of intoxication. She noted the lengthy history of such symptoms and the fact that they have continued while the accused has been incarcerated in WLC. She did not consider that the intoxication caused the mental illness but accepted that it may have a triggering effect, as noticed by the complainant. However, this did not change her view that the mental illness existed independently of the effects of the alcohol.

1. Dr O'Donnell's evidence was not challenged by the prosecution. I accept this evidence and in particular the opinions which she has expressed.

Findings in respect of s 16

1. I am satisfied that the accused was afflicted with mental disease when he committed the assault on Ms Rigby. In determining this question, I direct myself in accordance with the comments of King CJ in The Queen v Radford (1985) 42 SASR 266, as approved by Mason CJ, Brennan and McHugh JJ in The Queen v Falconer (1990) 171 CLR 30 at 53, as follows:

"The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called 'defect of reason' in the M'Naughten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli."

1. Applying this test to the evidence in this case, there is no doubt in my mind that the accused was experiencing symptoms of schizophrenia, in particular paranoid delusions and auditory hallucinations, at the relevant time and that the schizophrenia is a mental disease within the meaning of s 16.
2. I am not satisfied that the schizophrenia rendered the accused incapable of understanding the physical character of his actions (s 16(1)(a)(i)). However, the psychiatric evidence clearly supports a finding the accused was, at the time of committing the relevant acts, affected by symptoms of schizophrenia to such an extent that he was rendered incapable of knowing that the act was one which he ought not do. (s 16(1)(a)(ii)). It also supports a finding that the accused committed the relevant acts under an impulse that he was unable to resist because of the disease (s 16(1)(b)).
3. On the s 16(1)(a)(ii) question, I direct myself in accordance with the charge to the jury by Dickson J in R v Porter [1933] HCA 1, [1936] 55 CLR 182, as follows:

"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. Ultimately, these are questions of fact for me. Of course, my determination of them is informed by all of the evidence, including the psychiatric opinion. I am satisfied that the evidence clearly establishes that the accused was severely affected by psychotic symptomology at the time that he committed these acts. He had been suffering symptoms of paranoid delusions, hallucinations and disordered thinking on a regular basis since at least 2018. This is precisely what occurred on the day of the alleged crime and resulted in the accused attacking the complainant. I accept the evidence of Dr O'Donnell about this. It is entirely consistent with statements made by the accused before and during the assault as reported by the complainant. Further, I have viewed the footage taken from the body worn camera of the arresting officer during the stand-off, which took place when police arrived after the attack. The disordered and delusory nature of the accused's thinking is obvious from his comments and behaviour during those events.
2. Having regard to all of the evidence, I am satisfied, on the balance of probabilities, that the capacity of the accused to reason and appreciate whether his actions in perpetrating the assault were right or wrong, was so severely impaired by the symptoms of schizophrenia, in particular the paranoid delusions and auditory hallucinations, that he was rendered incapable of knowing that the acts were ones which he ought not do. I am also satisfied that the acts were done under an impulse which, by reason of the schizophrenia, he was in substance deprived of any power to resist. The fact that the symptoms may have been triggered by the consumption of alcohol does not affect the application of s 16, as explained by Dr O'Donnell. It follows from this that the accused is not criminally responsible for those acts under ss 16(1)(a)(ii) and 16(1)(b) of the Code, and further, that s 16(3) has no application to the circumstances of this case.

1. Having regard to these findings, I return the following verdict:

The accused 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.