Hone v The State of Western Australia

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HONE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 283

CORAM: STEYTLER P
WHEELER JA
MILLER JA

HEARD: 11 DECEMBER 2007

DELIVERED : 11 DECEMBER 2007

PUBLISHED : 21 DECEMBER 2007

FILE NO/S: CACR 30 of 2007

BETWEEN: LEVI WILLIAM HONE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
Citation  :STATE OF WESTERN AUSTRALIA -v- HONE [2007] WASC 64
File No  :INS 135 of 2005

Catchwords:

Criminal law and procedure - Trial for wilful murder - Trial by judge alone - Issue of insanity raised by appellant - Uncontradicted expert psychiatric opinion to the effect that the appellant was of unsound mind - Whether trial judge correct in refusing to accept that opinion - Extent to which appellant's testimony relevant to issue - Whether trial judge correct to find appellant guilty of wilful murder - Application of onus of proof

Legislation:

Criminal Code, s 1(1), s 27
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 21
Criminal Procedure Act 2004 (WA), s 118(4), s118(9), s 110
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)(b)

Result:

Appeal allowed
Convictions quashed and verdicts of not guilty due to unsoundness of mind substituted
Custody order made pursuant to s 21(a) of Criminal Law (Mentally Impaired Accused) Act 1996 (WA)

Category: B

Representation:

Counsel:

Appellant: Mr A S Derrick
Respondent: Mr P D Yovich & Mr C G Astill

Solicitors:

Appellant: Andree Horrigan
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Hall (1988) 36 A Crim R 368
Mizzi v The Queen (1960) 105 CLR 659
R v Dick (1966) Qd R 301
R v Gemmill [2004] VSCA 72; (2004) 8 VR 242
R v Hall (1988) 36 A Crim R 368
R v Kosowicz [2005] NSWSC 234
R v Matusevich [1976] VR 470
R v Michaux [1984] 2 Qd R 159
R v Porter [1933] HCA 1; (1933) 55 CLR 182
R v Weise [1969] VR 953
State of Western Australia v Hone [2007] WASC 64
Taylor v The Queen (1978) 45 FLR 343

STEYTLER P: I have had the advantage of reading the judgment of Miller JA. I agree with him, for the reasons that he has given, that this was not a case in which it was open to the trial judge to reach any conclusion other than that the appellant's mental impairment deprived him of the capacity to know that he ought not do the acts of killing his mother and half‑sister. I wish only to mention a few additional cases concerning the approach which should be taken by a judge or jury in cases concerning uncontradicted psychiatric evidence.
In Taylor v The Queen (1978) 45 FLR 343 the appellant was charged with murder. Very strong expert medical evidence was led at the trial to the effect that the appellant had not been capable, as a result of a disease of the mind, of reasoning whether what he was doing at the time of the killing was wrong according to normally accepted standards. The jury nonetheless convicted him of murder. He appealed to the Full Court of the Federal Court. That court upheld his appeal on the basis that the trial judge's directions to the jury in relation to the way it should approach the medical evidence were inadequate.
Smithers J, in his reasons, said (352) that, where medical opinions in a case of this kind are accepted as honest and competent and are unchallenged, the jury should not reject or ignore those opinions unless:
the facts on which the medical witnesses have relied to form their opinions are not satisfactorily established or are contradicted by other acceptable evidence, or the jury are not persuaded that steps of reasoning in the formation of those opinions were soundly taken, or there is some other factor before them reflecting on the validity of the opinions expressed.
He referred, by way of comparison, to R v Matusevich [1976] VR 470, 475 where, he said, the presence of 'a strong and completely sane motive for the killing' and premeditation 'were held to explain the jury's refusal to act upon uncontradicted psychiatric evidence which was all one way'. He went on to say (355):
Where the fact in issue is the state and capacity of mind and the only evidence thereof is expert opinion, the jury should understand that where the competence and honesty of the expert are accepted his skill in the area should be respected and should only be rejected for good reasons. But if the jury are under the impression that on the relevant issue they must look at the 'facts' given in evidence other than by the experts as the source or primary source of proof of insanity, and that they are not bound by the opinions and are free to make up their own mind contrary to those opinions, then it is hard to think that they would be performing their task according to law.
In their separate reasons in Taylor, Connor and Franki JJ noted that a jury is entitled to examine the nature and quality of medical evidence in a broad and commonsense way (363). For example, in a case such as this the jury (or a judge, where the trial is by judge alone) could examine the nature of the killing and the conduct of the accused and his history in considering the weight to be accorded to psychiatric evidence. However, Connor and Franki JJ said that a jury cannot reject unanimous medical evidence 'unless there is other evidence which can displace or throw doubt on that evidence' (364). They quoted the following passage from the judgment of Gibbs J in R v Dick [1966] Qd R 301, 305 ‑ 306 (dealing with the defence of diminished responsibility under s 304A of the Criminal Code (Qld)):
The jury may reject unanimous medical evidence that an accused person was of diminished responsibility if there is other evidence to support their verdict … Here, however, the evidence showed that the actions of the accused before, at, and after the time of the shooting were quite irrational, and the evidence as to his words and conduct does not conflict with medical evidence.
In those circumstances, it seems to me that the case comes within the words used by the Court of Criminal Appeal in R v Matheson [1958] 1 WLR 474, 479:
'If, then, there is unchallenged evidence that there is abnormality of mind and consequent substantial impairment of mental responsibility, and no fact or circumstances appear that can displace or throw doubt on that evidence, it seems to the court that we are bound to say that a verdict of murder is unsupported by the evidence'.
In R v Michaux [1984] 2 Qd R 159, the court was concerned with a medical practitioner who had been convicted of offences of administering stupefying drugs and sexually assaulting a number of his patients. The offences had taken place over a couple of years. The police interviewed the appellant in relation to the earliest complaints before the later offences were committed. At the time of those interviews, the appellant categorically denied any impropriety. He made elaborate exculpatory attacks on the complainants. He also denied wrongdoing on other occasions, prior to the commission of the last of the offences, when challenged by friends of the complainants. At his trial, the appellant relied on a defence of insanity under s 27 of the Criminal Code (Qld) (equivalent to that section in this State).
There was no doubt, in Michaux, that the appellant had suffered from a mental disease at the relevant times. However, the evidence given by the experts on the question whether his mental state had deprived him of capacity to control his actions, or of capacity to know right from wrong, was equivocal. Further, on the appeal, the court considered that the jury was entitled to have regard to the appellant's course of conduct in denying the earlier attack and making exculpatory attacks on some of the complainants. It could treat these as being indicative of a guilty mind and one that was aware that the acts in question were legally and morally wrong. Connolly J (with whose reasons Campbell CJ & McPherson J agreed) said (164):
The principles which are applicable to a situation such as this are not, I think, in doubt. Where there is unchallenged medical evidence of facts which would bring an accused person within the provisions of s 304A of the Criminal Code and there is no evidence to cast doubt on the medical opinions, a verdict which fails to give effect to those facts will not be supported by the evidence and will be set aside and the lesser verdict substituted: R v Dick [1966] Qd R 301; R v Matheson [1958] 1 WLR 474; R v Chester [1982] Qd R 252. The same conclusion obviously follows when the facts would bring the accused within s 27: Taylor v The Queen … However, it is otherwise where there is evidence which casts doubt on the medical opinions. Such evidence may go to the factual basis assumed for the purposes of the medical opinions as in R v Wallace [1982] Qd R 265. Again it may be that the behaviour of the prisoner himself is such as to cast such a doubt. Cf Walton v The Queen [1978] AC 788, 793. And, of course, the jury is amply entitled to scrutinize the medical evidence itself for qualifications, concessions, and reservations. As their Lordships observed in Walton v The Queen … :
'It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence.'
There are many other cases in which a similar approach has been adopted. Examples are R v Hall (1988) 36 A Crim R 368, 370 ‑ 371, 380 ‑ 381 (discussed by Miller JA) and R v Kosowicz [2005] NSWSC 234 [69] ‑ [73] (Patten AJ). There are also cases which point to the danger of rejecting the reasoning of an expert (psychiatric) witness by reference to the reasoning of lay people, who use commonsense based on their experience of sane, rather than mentally ill, people.
Mizzi v The Queen (1960) 105 CLR 659 provides a good example. In that case, the applicant killed a woman. He then went to a police station where he ultimately signed a written statement recounting what had happened. The statement showed a clear enough perception of the course of events. However, its contents were such as to arouse suspicion as to his sanity. At the trial, the applicant relied on the defence of insanity. He led evidence from three physicians (each of whom was a psychiatrist) in support of that defence. The Crown called no evidence in rebuttal. However, the prosecutor cross‑examined the physicians for the purpose of showing that the prisoner could not but have known the nature and quality of his act. He also sought to show that, having regard to the fact that the applicant had gone to the police station immediately after killing the woman, and having regard, also, to the contents of the applicant's statement, he must be taken to have been aware that his act was wrong. The High Court (Dixon CJ, McTiernan, Fullagar, Menzies & Windeyer JJ) made the follow observation about this cross‑examination (663):
The reasoning upon which the cross‑examination was based was, of course, the kind of reasoning which a sane mind would pursue, while it is apparent from a reading of the transcript of the evidence that the reasoning of the witnesses was based on the belief or assumption which they adopted that the prisoner's mind was not a sane mind and accordingly would be governed by quite different beliefs and perceptions, and a different consciousness and understanding of the things that would be significant to the sane. In cases of this kind it may well happen that expert witnesses accepting the hypothesis that a prisoner is insane are not on the same ground as counsel adopting the opposite hypothesis and arguing according to the common sense of ordinary men supplied by the experience of sane persons.
After mentioning that this case was not one in which the medical evidence was under suspicion for partiality or in which it was contradictory, the court went on to say (663 ‑ 664):
The case is simply one in which an opposition was disclosed between the view which experts took of the matter and the conclusion which laymen would or might reach. From a forensic point of view at all events, it may be said that the acceptance of the medical view that the prisoner at the time of the commission of the homicide was incapable of understanding the wrongness of his act was made less easy for a jury by the tendency of the physicians to suggest that notwithstanding his possessing himself of the knife and inflicting deadly wounds upon his victim, the prisoner may have lacked a sufficient capacity to understand even the nature and quality of his act. The difficulty was doubtless increased by the fact of his going at once to the police station. The expert witnesses perhaps did not feel the difficulty, because they were concerned with a paranoiac schizophrenic and because they concentrated upon the confusion of mind apprehension and reason which in their view would beset such a person. But these very difficulties increased the importance of the jury's obtaining an understanding of what was being discussed under the term 'knowledge of the wrongness of his act'.
In R v Weise [1969] VR 953, the court was concerned with an appellant who had been convicted of the murder of his wife. He had raised a plea of insanity. He called two psychiatrists to give evidence. They were cross‑examined by the prosecution, but the Crown led no evidence in rebuttal. Barry J said (961):
The task of the jury was to decide on the evidence about the accused's conduct and personality and of the circumstances of the killing, and of the state of his mind, whether he was responsible according to law for his actions. In performing this task, it was perhaps inevitable that they would test the defence of insanity by the kind of reasoning which a sane person would employ. Inferring from the very thing he did and his subsequent account of the events that he knew he was shooting his wife with a shotgun with the intent to kill her, the jury would readily conclude from his conduct in telephoning the police that he knew, as a sane person would know, that it was wrong in the sense that it was contrary both to the law and to the ordinary standards adopted by reasonable men. The vice of such an approach, however, is that it treats a person who was suffering from a pathological mental state amounting to a definite disease entity as if he was capable, not only of understanding the significance of his actions, but also of making use of his knowledge.
He went on to say (963):
If the capacity to know that he is doing what is wrong is so grossly impaired in an insane person, by reason of his mental disease, that he lacks the ability of a sane man to know and to reason on the particular subject, it is manifestly unjust to test his awareness by the standards appropriate in judging the conduct of a sane man.
In the same case Smith J (with whom Adam J was in general accord) said (972), that, because of the way in which the issue had been left with the jury, there was:
a substantial risk that the jury would be led to overlook the fact that the experts had said that the history of the appellant's acts and words contained nothing inconsistent with their conclusion that he was legally insane; and to overlook, also, the consideration that, if the jury were to act upon their own opinions, based upon that history, they would be rejecting or ignoring that part of the experts' evidence, and would be acting upon their own laymen's views as to how the minds of insane persons work.
Similar comments have been made in Matusevich (475 ‑ 476) (Young CJ, Starke & Nelson JJ). Reference might also be made, in this respect, to R v Gemmill [2004] VSCA 72; (2004) 8 VR 242 [47] and following (Eames JA, Winneke P & Ormiston JA agreeing).

If these principles are applied to the present case, then, in my respectful opinion, it becomes apparent that the appeal must succeed. That is because, in the circumstances identified and for the reasons given by Miller JA, there was no evidence or circumstance that could displace or cast doubt upon the expert evidence given by the psychiatrist as regards the appellant's mental capacity at the material time.
It was for these reasons that I joined in the decision to allow the appeal.
WHEELER JA: I agree with Miller JA.
MILLER JA: At the hearing of this appeal, the court unanimously allowed the appeal, quashed the convictions of the appellant for wilful murder and substituted verdicts of not guilty on account of unsoundness of mind on both counts on the indictment. Pursuant to s 21 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA), a custody order was imposed. The court undertook to publish its reasons and these are my reasons.
The appellant was indicted on two counts of wilful murder and in respect of each the alternative of murder. The indictment read:
(1)On 14 March 2005 at Margaret River, Levi William Hone wilfully murdered Donna Leigh Hone.
(2)In the alternative to count (1), on 14 March 2005 at Margaret River, Levi William Hone murdered Donna Leigh Hone.
(3)On the same date and at the same place Levi William Hone wilfully murdered Lileigh Margaret O'Doherty.
(4)In the alternative to count (3), on 14 March 2005 at Margaret River, Levi William Hone murdered Lileigh Margaret O'Doherty.
The appellant made application to be tried by judge alone and an order to that effect was made by me on 14 August 2006: s 118(4) Criminal Procedure Act 2004 (WA). The order was made by reason of the fact that the psychiatric evidence to be led in the case was likely to be more properly determined by a judge alone than by a jury. This was because the psychiatric evidence was to be directed to the question whether or not the accused was of unsound mind at the time of the commission of the offences: s 27 Criminal Code.

When the order for trial by judge alone was made, it was expected that the psychiatric evidence to be called by the defence and that to be offered by the prosecution would be to the same effect and that there was to be no contest about it. It was thought that the case would require the trial judge only to determine whether the accused had established on the balance of probabilities that he was of unsound mind at the time of the commission of the offences.
The matter came on for hearing on 13 November 2006 before me. It then became apparent that it was not the case that the prosecution and defence were at one in relation to psychiatric opinion on the issue of insanity. Counsel for the appellant stated that it was her understanding that there were going to be 'two psychiatrists saying the same thing' until shortly before the case was to be heard on 13 November. Counsel for the respondent stated that the respondent had never indicated ('certainly in writing') that the psychiatric evidence would not be disputed.
It does, however, seem clear from the transcript of proceedings on 13 November 2006 that counsel for the appellant had received advice from the Office of the Director of Public Prosecutions on or about 4 August 2006 that the respondent would call a Dr McCarthy, whose evidence would be to the same effect as that to be put before the court by the appellant.
The case was unable to proceed on 13 November 2006 and was further adjourned. By then, it had to be tried by judge alone because the order made on 14 August 2006 could not be reversed: s 118(9) Criminal Procedure Act 2004.
The matter came on for hearing before Murray J on 19 February 2007. The trial was conducted pursuant to the provisions of s 119 of the Criminal Procedure Act 2004. As the issue of unsoundness of mind was in dispute, the question was whether the appellant could establish on the balance of probabilities that he was of unsound mind at the time of the killings within the meaning of s 27 of the Criminal Code: R v Porter [1933] HCA 1; (1933) 55 CLR 182, 184 (Dixon J). The question was whether the appellant could establish that at the time of the killings he was in such a state of mental impairment as to deprive him of the capacity to understand what he was doing, or of the capacity to control his actions, or of the capacity to know that he ought not to do the act.

The trial process

The trial before Murray J proceeded between 19 February and 3 March 2007. Much evidence was called. It went predominantly to the circumstances of the events of 14 March 2005 in Margaret River, but there was a good deal of other evidence in relation to the period leading up to that date and the sequel to it.
At the close of the prosecution case on 27 February 2007, the defence called evidence. The first witness was the appellant. The appellant's evidence was supported by the testimony of Dr Mircea Schineanu, a consultant psychiatrist experienced in forensic psychiatry. He was the only expert witness called. He testified that the appellant was, at the relevant time, suffering from mental impairment within the meaning of s 27 of the Criminal Code in that he suffered from a mental illness as defined in s 1(1) of the Code. He was also of the opinion that the appellant lacked the capacity to control his actions and that he lacked the capacity to know that he ought not to do the acts by which death was caused.
Recognising that it was only for the appellant to establish these facts on the balance of probabilities, the trial judge concluded that at the time of the killings, the appellant was mentally impaired within the meaning of s 27 of the Criminal Code because he was mentally ill as that term is defined. The trial judge did not, however, accept that on balance the appellant at the time of the killings was deprived of the capacity to control his actions, or to know that he ought not to do the acts which resulted in the death of his mother and sister. The trial judge concluded that forensic evidence of what the appellant did 'and establishing the decisions he made to carry out the killings and in the course of those events' was good evidence that he, in fact, had the capacity to control his actions and had the capacity to know that it was wrong to kill his mother and his sister (see State of Western Australia v Hone [2007] WASC 64).
The trial judge thus rejected the uncontradicted expert evidence of Dr Schineanu. The evidence was contested by counsel for the respondent, but no evidence was led in opposition to it. Whatever medical opinion the respondent held, it was not adduced in evidence.
It may seem surprising that counsel for the respondent (at trial) chose to contest the medical opinion of Dr Schineanu if he held a report containing similar opinion from Dr McCarthy. Counsel would have to have had powerful reasons for electing to ignore the opinion which the respondent had itself obtained (assuming it to be the same as Dr Schineanu) before embarking upon a course of seeking to contest and discredit the evidence of Dr Schineanu. This is not the place to inquire into the reasons for counsel taking that course. No ground of appeal is advanced in relation to it.
The conclusion reached by the trial judge was that in the absence of proof on the balance of probabilities that at the time of the killings the appellant was of unsound mind, the evidence was overwhelmingly in support of a conclusion beyond reasonable doubt that the appellant intended to kill both his mother and sister. Accordingly, he was convicted of the offences of wilful murder on counts 1 and 3 on the indictment.

Leave to appeal

Leave to appeal was granted by Wheeler JA on 28 May 2007 on nine grounds. Those grounds are divided between what are contended to be errors on the part of the trial judge in rejecting Dr Schineanu's evidence and errors in finding that the appellant had the capacity to know that he ought not to kill his mother and sister. The grounds of appeal are set out in full at [111].

The facts from the prosecution case and the trial judge's essential findings of fact

The reasons of the trial judge set out the basic facts of the case. They are not in dispute. The trial judge first dealt with evidence of 'historical matters'. This established that the appellant (born in 1981) was the child of Grant Lees and Donna Leigh Hone. They had separated in 1985. The appellant had gone to Queensland to live with Mr Lees for a period. He was observed to be smoking cannabis. He returned to Western Australia. There were difficulties between the appellant and his mother, which Mr Lees considered were caused by the appellant's use of drugs. There was similar evidence from the appellant's stepfather, David Hone. There was evidence to the same effect from Gary Scott, who had been engaged to marry Ms Hone since early 2003. He described the appellant as injecting an air of tension into the household. He had assaulted the appellant on one occasion to prevent a worsening situation between the appellant and his mother. He thought, however, that in the months preceding the killings (which occurred on 14 March 2005) the appellant had improved in both behaviour and attitude. This was primarily because Ms Hone, through concern for the appellant, had endeavoured to keep him on a 'straight and narrow' path by adopting an inflexible rule that there was to be no use of alcohol or drugs in the house whilst the appellant was living there.
There was evidence from a Georgia Carvolth, a former girlfriend of the appellant, that she had met the appellant in December 2002. A child was born to them in September 2003 and for a short period after the birth of the child, the appellant and Ms Carvolth lived together. The appellant had then got into trouble for setting fire to motor vehicles and Ms Carvolth returned to live with her parents and the appellant went to Margaret River to live with his mother. Ms Carvolth's impression was that the relationship between the appellant and his mother was 'generally all right'. Although there were arguments, there were no physical confrontations and Ms Hone's primary concern seemed to be in relation to the appellant's drug‑taking and trouble with the law. Ms Carvolth and the appellant broke up in or about March 2004 and there was little contact between them until the appellant was discharged from Bunbury Hospital on 6 September 2004. He had been admitted there for treatment of mental illness on 26 July 2004.
Jessica Beckley testified that during 2004 the appellant had lived with her and other people at a property in Boodjidup Road, Margaret River. This appeared to the trial judge to be during a period of some months before the appellant's admission to Bunbury Hospital. Ms Beckley described the appellant as weird and increasingly so as time went by. He laughed to himself for no apparent reason. He would then stop laughing and behave normally, or he might burst into tears and then get up and leave. On one occasion, whilst watching television in the lounge room, Ms Beckley heard a loud scream from the kitchen. She went to the kitchen and saw the appellant. He was naked. He stopped screaming and went off to his room. At other times, he would take off his shirt and for a significant period of time breathe quickly, flex his arm muscles and stomach muscles and examine himself. The trial judge considered that this was not showing off his physical development. Ms Beckley said that sometimes the appellant's eyes looked odd. They were 'strained and red' and he would stare straight at Ms Beckley. From her limited observation of the appellant with his mother and sister, Ms Beckley thought the relationship was a good one.
There was evidence about the appellant's drug‑taking. Ms Carvolth said that she had seen him smoking marijuana. When they were together, he did so on a daily basis, taking large quantities each day. The drug had adverse effects on him physically. It made him tired and caused his eyes to become red. He had also told her that he used amphetamines. The appellant himself confirmed that he used substantial quantities of cannabis during the first half of 2004.
Ms Carvolth said that after the appellant's discharge from Bunbury Hospital, he was taking Lithium by way of medication. It helped him, but made him tired and he would often sleep during the afternoon. He became frustrated if he did not take the medication. Ms Carvolth had seen the appellant behave oddly. She heard him say that he was God. She saw him take off his shirt, extend his arms and say he was controlling the wind. He said that red traffic lights did not apply to him. On one occasion, he cut his arms, causing significant bleeding.
There was evidence that in early March 2005, the appellant was told that his mother had contributed to loss of contact between the appellant and his natural father, Mr Lees.
Wendy Harrell, sister of Ms Hone, testified that Ms Hone was proud of the appellant, but concerned in later years at his drug use and breaches of the law. On one occasion, he committed a burglary in Margaret River and later burned two motor vehicles for which he was dealt with in the District Court in 2004. Ms Harrell described Ms Hone as having become frustrated by her incapacity to change the behaviour of the appellant. She said that there was an element of volatility in the relationship between mother and son. She heard a telephone conversation between Ms Hone and the appellant around Christmas 2004. It was an angry exchange between Ms Hone and the appellant, during which the appellant threatened to kill his mother, telling her to shut her mouth and accusing her of always talking on the telephone. According to Ms Harrell, both the appellant and Ms Hone were very angry. When Ms Harrell intervened, she said that the appellant threatened her and told her that she should 'watch her back as well'. The trial judge accepted this evidence and rejected the appellant's denials in relation to it. Nevertheless, the trial judge did not think that the evidence established that in the months of 2005 leading up to the killings, the appellant had 'a growing determination to kill [Ms Hone]'. Evidence established to the satisfaction of the trial judge that the relationship between Ms Hone and the appellant had not broken down or assumed any added dimension of hostility, from Ms Hone's viewpoint at least, in the days immediately before Ms Hone's death.
There was evidence from a friend of the appellant, Mr Copeman. He gave evidence that he thought the appellant's state of mind had deteriorated progressively since the birth of his child. The appellant would describe himself as the king of Scarborough and of the world. He said that he could take anything he wanted because it was his.
There was evidence that the appellant travelled to Perth from Margaret River on Wednesday, 9 March 2005. He went to the White Sands Hotel in Scarborough with Ms Carvolth and two friends. There was an argument. It continued when Ms Carvolth and the appellant went home. Ms Carvolth punched the appellant and he left. The evidence of Ms Carvolth and his friends was that the appellant was behaving oddly. The argument between Ms Carvolth and the appellant continued on 10 March. On 11 March, the appellant rang Ms Carvolth and she collected him from the Karrinyup shopping centre and took him back to her unit. He was distressed that day. He apologised for his behaviour on the preceding Wednesday and Thursday. She observed him to be behaving strangely. He stared out the window. He took some time to answer her questions. She asked him about his medication and he said that he did not have it with him. He said that he had last taken his medication on Tuesday, 8 March 2005.
The appellant returned to Margaret River by bus on the afternoon of 11 March. He behaved strangely when Ms Carvolth drove him to the bus station. He stared at her and laughed to himself. He behaved strangely at the bus station itself. He hugged Ms Carvolth and clung onto her for so long that the bus driver became agitated about the delay. Ms Carvolth spoke with the appellant at about 11 pm that night when he had arrived at Margaret River. Her evidence was that she also endeavoured to make contact with the appellant, unsuccessfully, on Saturday, 13 March 2005. The evidence of Nathan Hone (Nathan) supports this.
The evidence established to the satisfaction of the trial judge that during the period shortly before 14 March 2005, the appellant was not taking Lithium. He had ceased to do so on 8 March. The medical evidence established that the stabilising effect of Lithium would evaporate quite quickly if not taken (within a day or two) and the trial judge concluded that the evidence suggested that this was what was occurring to the appellant at the time.
The appellant worked at Xanadu Winery Restaurant on the night of Saturday, 12 March 2005. He behaved oddly. At one point, he played with kitchen knives. At another, he giggled to himself, with no apparent cause.
After the appellant returned to Margaret River on 11 March 2005, he returned to the family home, where he slept on a couch in the living room. Ms Hone and Lileigh O'Doherty (Lileigh) had rooms towards the rear of the unit. They were not there for the bulk of the weekend. They were often at Gary Scott's house at Prevelly. It appears, however, that Ms Hone and Lileigh came home on the Sunday afternoon. She then berated her sons for not having kept the unit clean and for not washing the dishes.
Nathan gave evidence that after the appellant had returned to Margaret River, he looked a mess. He described him as having hazy eyes and stinking. He considered there was a marijuana smell about him, but when he asked his brother whether he had been using marijuana, he was told that he had only had a couple of beers. He described his eyes as red and it appears that the appellant did not change his clothing or physical appearance at all over the whole of the weekend. His behaviour was odd. Nathan described him as staring out of the sliding doors in the dining area. He would frequently open and close the refrigerator, or would simply stand and look into the interior of the fridge. He seemed distracted and seemed to have difficulty responding when Nathan spoke to him. On one occasion, he was sitting on the kerb at the front of the unit. On another, he was banging on the dividing fence separating the Hone unit from that of a neighbour. He would not tell Nathan what was wrong with him. Nathan heard him walking up and down within the unit, mumbling and talking to himself, laughing in a false or sarcastic way and then immediately screaming or shouting out in circumstances where this was immediately followed by crying, 'real sobbing' and then silence or more laughter. The trial judge concluded that there was no play acting in this behaviour and that the accused was in a seriously disturbed condition.

The events of 14 March 2005

On the morning of 14 March 2005, Nathan left the family home at 7 am to go to work. He received a call from his mother at 8.44 am. She asked whether the appellant had been acting strangely. She seemed to Nathan to be worried. She told Nathan that the appellant had grabbed a packet of cigarettes and run out of the door. This was the last occasion upon which Nathan spoke with his mother.
Ms Hone had been observed on the morning of 14 March 2005. She was in a relaxed mood when she was seen in Coles' store in Margaret River.
The appellant was observed by a witness walking in Georgette Drive, Margaret River, towards the town. This was away from Jacaranda Crescent where Ms Hone's unit was. The time at which the appellant was seen was about 8.30 am. The trial judge concluded that this fitted with the evidence that, after an exchange with his mother in the unit in Jacaranda Crescent, the appellant had grabbed cigarettes and left the unit, walking into the town.
The evidence revealed that Ms Hone made a number of telephone calls on the morning of 14 March. Just before 8.30 am, she rang Mr Scott. She was worried about the appellant's behaviour. He had then left the house. Mr Scott told her to call 'mental health' and tell them of the situation. He also advised her to lock the doors. His evidence was that she was calm, but sounded concerned.
Ms Hone did make a number of telephone calls to mental health agencies. They were at about 8.40 am. She called the Bunbury Hospital, the Busselton Mental Health Clinic and the Margaret River Community Mental Health Service. She was, however, unable to make any significant contact. An answering service at Busselton told her to ring back after 9 am and there is evidence that a call was registered at 9.02 am. That was the last use of the house phone before calls were made by Nathan, just before 4.10 pm.
Denise Lynn, a friend of Ms Hone, said that, at about 9 am on 14 March, Ms Hone called her on the telephone sounding distressed. She told Ms Lynn that the appellant was back on drugs. She said she had rung mental health, but she was unable to get any help. She told Ms Lynn that the appellant had come home and 'had a go at her', but she had asked him to leave the house and he had responded that the house was his and it was she who should leave. She said that the appellant had then left, but was waiting outside the front door. Ms Lynn said that Ms Hone told her that she was frightened, but was going to stand her ground. The trial judge admitted this evidence as part of the res gestae. He found Ms Lynn to be an impressive and careful witness and accepted her testimony.
The Hone residence was a rear unit at 34 Jacaranda Crescent, Margaret River. It was unit number 2. Unit number 1 was occupied by a Mr Bannister. He gave evidence that early on the morning of 14 March, he saw the appellant outside the front of the unit. About half an hour later, he heard what he described as 'full on arguing' coming from unit 2, and 15 or 20 minutes later, he looked out the front of his unit and saw the appellant walking naked on the street. The trial judge concluded that what Mr Bannister heard must have occurred at about 9 am, shortly after Ms Hone's telephone call to Ms Lynn.
A Ms Chapman gave evidence that she resided at 36 Jacaranda Crescent, next door to unit 2, 34 Jacaranda Crescent. She took her children to school and returned home between 9.15 and 9.20 am and from unit 2 next door she heard screaming and crying. The trial judge accepted her evidence, which he found to be accurate and truthful. The screaming and crying was loud and high pitched. The trial judge concluded that this was the voice of a child. Ms Chapman heard the words, 'You're terrible' and a male voice (which the trial judge concluded was the appellant) speaking loudly as if to correct the child. The male voice said, 'No, you're terrible'. The child then repeated, 'You're terrible'. The appellant then repeated, 'No, you're terrible'. These voices sounded as if they were coming from the room closest the fence which divided 34 Jacaranda Crescent from 36. This would have been the lounge or dining room. It was in the lounge room that Lileigh's body was ultimately found. The trial judge concluded that what Ms Chapman heard was an exchange between Lileigh and the appellant just before the appellant killed her, and just after Ms Hone had been killed.

The killings

Ms Hone and Lileigh were brutally killed in their home at unit 2, 34 Jacaranda Crescent on the morning of 14 March 2005. A post‑mortem report revealed that Ms Hone had been subjected to significant blunt force to her face. She had a broken nose and her dentures were broken and were dislodged from her mouth. She had injuries which were likely to have been inflicted by at least two and probably more applications of force by punches or kicks. She had defensive wounds to her fingers and other areas of both hands. The trial judge concluded that she had attempted to ward off at least four or five blows with a knife. These wounds may have been received first while she was on her feet, but also, at least in part, after she fell to the kitchen floor. Her cause of death was blood loss. She had a plastic bag over her head, which was probably knotted. The trial judge accepted Dr Clive Cooke's opinion that this bag was probably placed over her head in the last moments of her life, if not after death. Her death would have occurred two or three minutes after the attack upon her commenced.

A major wound which had fatal consequences was a knife wound to the abdomen, near the umbilicus. It was about 10 centimetres deep and tracked through the stomach. It severed the mesenteric artery and caused massive bleeding. The quantity of blood in the abdomen would have required a minute to a minute and a half to accumulate and this probably would have been whilst Ms Hone was on her back. Another knife wound which contributed to death was probably inflicted with a narrow‑bladed weapon to the front of the neck. This wound penetrated the left carotid artery and finished near the cervical spine.
There were three wounds to the right of the base of the neck, the middle one of which was a deep wound penetrating to the cervical spine. There were a number of knife wounds to the front of the body, the majority of which had probably been inflicted whilst Ms Hone was on the kitchen floor. There were knife wounds to the back and back of the right thigh, with a deep wound penetrating the leg at a 45 degree upward angle to the right femur. One knife wound was to the right of the back at waist level, involving the spinal processes. None of these was significant in terms of cause of death, but they were delivered at various angles. They indicated to the trial judge the continuation of an attack with a knife while the deceased struggled, at least briefly, on the floor of the kitchen to evade blows.
The conclusion of the trial judge was that there had been a sustained and determined attack with the use of two knives, both of which broke. One was a bread knife and the other a carving knife.
Lileigh sustained substantial blunt force to the face and to the sides of her head. She had a broken jaw and a displaced tooth. There was injury about the brain and under the left side of her head. Her skull was fractured. There were petechiae and abrasions about her neck and the upper portion of her torso, where there were also soft tissue haemorrhages. She had a plastic bag over her head.
There was patterned bruising and abrasions on one side of Lileigh's head, with what the trial judge described as 'carpet burn' abrasions to the opposite side of the face and head. The injuries bore evidence of a pattern of circles and lines of the kind found on the soles of soft sneakers. The trial judge was satisfied that these were consistent with the sneakers worn by the appellant. There was also recent bruising to the arms.
The injuries to the neck and upper torso were compression injuries, consistent with compression by standing or stomping on the neck and then by compression by hand. Some contribution by manual strangulation could not be excluded.
Lileigh was found on a carpet on the lounge room floor. Her death had been caused by asphyxiation. The trial judge concluded that this was caused by pressure of a substantial kind inflicted on her throat by standing on her, or stamping on her, and perhaps also by manual strangulation and plastic bag suffocation. The petechiae were held to be evidence of death caused in this way. The trial judge found it to be a possibility that the head injury, possibly caused by stamping on the head, had caused internal injury under the skull which contributed to death.
The trial judge concluded from the evidence of witnesses to the events surrounding the killings that Lileigh was killed after her mother and that she had witnessed the death of her mother and understood how wrong it was. DNA results from analysis of fingernail scrapings of Lileigh showed that she had attacked the appellant. The trial judge found that Lileigh had scratched the appellant's back as he knelt over Ms Hone, whilst attacking her on the ground.
Forensic evidence made it clear that the appellant was responsible for the two deaths. There was fingerprint evidence which linked the appellant to the scene. Two knife blades were found in the kitchen rubbish bin, together with the broken off handle of the larger of the knives. The handle of the smaller knife was found on the kitchen floor. Fingerprints on these were consistent with those of the appellant.
There was evidence that there had been a disturbance in the dining room area. Ms Hone's handbag was on the floor and her mobile telephone was partly protruding from it. There was a pair of sunglasses on the floor under the dining room table. There was evidence that Ms Hone had bled copiously. Her blood was identified on shoes worn by the appellant.
There was blood on the cupboard doors in the kitchen at the dining room end. This consisted of numerous blood spots and rivulets, which were relatively fine and which, in the opinion of an investigating officer, displayed evidence of projection under some force (perhaps arterial pressure) striking the surface of the cupboard doors and the kickboards below them at close to 90 degrees. This suggested to the officer that most of the blood spattering was from Ms Hone as a consequence of injuries she received when she was low on the ground. There was also blood on the kitchen drawers.
Clothing worn by the appellant was found in the bathroom. This consisted of a pair of boxer shorts, board shorts and a pair of shoes. On the board shorts was blood of both the appellant and Ms Hone. On the shoes was blood of Ms Hone. Blood on the sole of the shoes was consistent with the appellant having stepped in blood on the kitchen floor.

The sequel to the killings

At about 9.30 am on 14 March, the appellant was seen walking naked in Georgette Drive. His hair was wet. He was walking casually and was walking towards the Margaret River township from Jacaranda Crescent. He ignored people who shouted at him. A Constable Hastie, who knew the appellant, saw the appellant and yelled at him to get some gear on. The appellant looked at him, but blankly. According to Constable Hastie, there was no recognition. The appellant walked on. Eventually, he was stopped by police in a vehicle at the corner of Forrest Street and Georgette Drive. He said nothing, but climbed into the rear passenger seat of the vehicle. He was taken to the Margaret River Hospital, where he arrived at about 9.45 am. He was provided with a hospital gown and taken into a consulting room. He was asked whether he knew where he was and he said he could not remember, but that he was 'on the earth', 'in this room' and 'in this universe'. He said he did not remember whether he had a family or who he was. He was described by a nurse (Ms Hewitt) as speaking illogically and with a wild‑eyed expression. She said that at times he appeared to be looking through her. A doctor attended the appellant and gave him a sedative injection.
Ms Hewitt telephoned Bunbury Hospital for advice and spoke to a Nurse Lusty. Ms Lusty said that she thought the patient might be the appellant. She said this because the appellant had been committed to the psychiatric unit at Bunbury Hospital between July and September 2004.
Ms Hewitt went to the appellant and spoke his name, 'Levi'. He responded by lifting himself upwards and saying, 'Yes'. Ms Hewitt put to him that he was Levi Hone of Jacaranda Crescent and he replied, 'Yes'. According to an officer who was present, he smiled. The trial judge considered that the appellant's odd behaviour at this time was genuine and was 'not a construct for the purpose of laying a foundation of insanity'.
The trial judge reviewed a video record of examination of the appellant and the taking of samples and fingerprints from him. He concluded that the camera showed the appellant to appear to be almost unconscious at times, but able to rouse himself and follow what was occurring at other times. His speech was difficult to discern, his answers were odd and he repeated the propositions that he had no family, that everyone was his family, that he had no place of residence, but he lived everywhere. Again, the trial judge rejected a suggestion from the prosecution that the appellant's behaviour on this occasion was not genuine.
The prosecution also put before the court evidence relating to the appellant's appearances in various courts for different offences. Associated with this was evidence that, on one occasion, the appellant had suggested that he would use 'mental health issues' to get off a case. The prosecution suggested from this that the appellant was manipulative and untruthful and would mislead a court for his own advantage. The trial judge rejected that proposition and was not prepared to accept that the appellant was not genuine in relation to his state at the time of the commission of the offences the subject of the indictment.

History of the appellant's mental illness

There was substantial evidence relating to the appellant's mental condition. He was seen at Bunbury Regional Hospital on 26 July 2004, following an episode in which he had left Margaret River early one morning to walk to Perth. His intention was to go to the International Airport and to take a plane to New York. He was to reside at the top of the Empire State Building, from where he would perform his function of caring for the world by meditating and communicating with a higher power. He would end wars and establish peace and good order. He walked all day and into the night, sometimes on and sometimes off the highway. His behaviour was reported to police and he was apprehended and taken to the Bunbury Hospital, where he was admitted to the psychiatric unit.
Dr Kemp, who saw the appellant at the Bunbury Hospital psychiatric unit, concluded that he was in the grip of a psychotic episode, which was a manifestation of a schizo‑affective disorder, probably drug‑induced. Dr Kemp considered that the appellant was seriously ill and required intensive treatment and medication. He was slow to respond, but, by the time he was discharged in September 2004, he was free of psychotic symptoms and his delusions had cleared.
By March 2005, the position was different. I will come shortly to the evidence of Dr Schineanu about this.
Because there is no contest about the fact that the appellant was suffering from a mental illness on 14 March 2005, it is unnecessary to detail the history of the appellant's medical treatment and admissions to hospital which followed July 2004. He was last seen at Bunbury Hospital on 4 March 2005, when Nurse Skuthorp was satisfied with his progress. She found no manifestation of a recurrence of any psychosis and she considered the appellant to be focused on this treatment. His next appointment at the hospital would have been 18 March 2005. In the meantime, he was admitted to Bunbury Hospital on 14 March 2005, after the killings.

The defence case

The defence called the appellant. It is unnecessary to relate his evidence in relation to events leading up to 14 March 2005. There was sufficient independent evidence to support the proposition that he was seriously disturbed and suffering a mental impairment within the meaning of s 27 of the Criminal Code at that time.
The appellant gave evidence about the events that occurred on the morning of 14 March. He said that, at around 8.30 am, his mother and Lileigh walked into the house. She asked him to do the dishes and he told her to do the dishes, as it was his house and his planet. He grabbed her cigarettes, but she said to give her the cigarettes and sit down. He said he would not do so and, as he was walking backwards, she pushed him in the mouth. He said he turned around and walked to town.
In town, the appellant was sitting at the front of 'Chooks' in Margaret River, where he had a cigarette. He was feeling upset. He had been waiting for a car to pull up in front of his house and for a person to take him to the International Airport, where he could board a plane for New York. A car was not in the driveway of his house, so he thought it would be parked at the front of Just Jeans, which was across the road from Chooks. He had walked to town for this reason. His evidence was that he then started thinking and:
I had a voice telling me that in order for this car to show up out the front of Just Jeans I should walk home and actually punch my mother and leave straightaway and then when I would get back downtown the car would be waiting and this was seen as a trust with the people that if I was - if they were to believe me that I was this chosen person that this was part of my mission of what I had to do was punch my mother and then leave the house, come back downtown and the car would be waiting there for me.
What happened then?‑‑‑Pardon me?
What happened then?‑‑‑I started walking home. I left the cigarettes actually out the front of Chooks because I was expecting to return there and have another cigarette before getting in the car and leaving. Another thought was telling me that I could go into Just Jeans and choose some clothes before I got in the car for the drive to Perth. I was walking home and just this thought of, you know, to punch my mother and then to leave straightaway. I remember walking down the street. I walked up the driveway. I opened the flyscreen door. As I opened the flyscreen door mum had - mum opened the front door and I walked in and she followed behind me saying, 'What's been going on? Are you okay?' She followed me. I walked into the kitchen. She followed me into the kitchen. I grabbed a knife out of the drawer and we had a scuffle. She said to me a couple of times, 'I can help you. I can help you,' and just ‑ ‑ ‑
Okay. Take a deep breath?‑‑‑I remember I had a hold of her hair and she said again, 'I can help you. I can help you.' I remember flinging the knife down into her stomach once and we then had a wrestle on the ground. It's really hard to explain through this but at that stage we were both on the ground in the kitchen and I had pushed the knife that I had into the middle of her neck and then I think the handle broke. I pulled the blade out. I then - just through that mum just kept saying to me, 'I can help you. I can help you,' and that took place in the kitchen then I don't know why, I don't know how but my initial thought was just to walk in there and punch my mum and leave. I turned around and I said to my sister, 'Lileigh,' I said, 'Run to Daddy Ned's house right now.' She said something like, 'What?' and I said, 'Run Lileigh, run to Daddy Ned's house right now,' and she ran to the front door and was trying to open it but we couldn't and I kept telling her, 'Run, Lileigh, run'. I walked over to her and I had put my hands around her neck and she actually said to me, 'No, Luvi, no,' and I strangled her until she had passed out. I remember walking into the bathroom. I remember having a shower and I remember walking out the side gate and walking downtown.
The appellant said that he remembered grabbing two knives from the drawer, but he could remember using only one of the knives. He said he remembered stabbing his mother in the stomach and the neck, but nowhere else. He could not recall how he got scratches on his back. He knew nothing about plastic bags. He admitted that he caused the death of his mother and sister.
The appellant was cross‑examined at considerable length. A portion of the cross‑examination which was relied upon by the trial judge went to the question of whether the appellant knew that what he had done to his mother was wrong. The passage is as follows:
You knew what you had done to your mother was wrong, didn't you, Mr Hone?‑‑‑At the time or now?
Mr Hone, in telling your little sister, if what you tell us is true that you said to her, "Run to Daddy Ned's house right now," then you did so because you knew that what you had just done to your mother was wrong, didn't you?‑‑‑No, I told her to run because I was uncertain about myself.
But you knew you had just stabbed your mother, didn't you?‑‑‑I knew I had, yeah.
Yes?‑‑‑Yeah. Now, looking back ‑ ‑ ‑
No, I will stop you there. You know I'm asking you, Mr Hone ‑ ‑ ‑?‑‑‑At the incident or ‑ ‑ ‑
‑ ‑ ‑ about what was going through your mind at that time?‑‑‑At that time.
You knew you had stabbed your mother, didn't you?‑‑‑Sorry, once again I find it hard to explain from the point of view where I sit now to if I was actually back in that situation and what was - I was experiencing.
Mr Hone, it's very simple. You turned to your little sister and said to her, 'Run to Daddy Ned's house right now,' that's what you tell us now happened. You did so, do you agree, because you knew that you had just stabbed her mother?‑‑‑No, I was telling her to run because I was uncertain about myself.
What was there to be uncertain about, Mr Hone?‑‑‑I didn't feel right. I felt different, very different.
The prosecution came back to the subject later in the cross‑examination when the following exchange occurred:
Why would you not ordinarily want to punch your mother?‑‑‑It's something that's never really crossed my mind.
Because it was wrong. Correct?‑‑‑It is, yeah.
And you knew it was wrong to do that, didn't you?‑‑‑From where I sit now and looking back at it, yes.
No, from where you sat in Margaret River looking forward to it, Mr Hone, you regarded it as a test?‑‑‑Yes.
Because you were being asked to do something you knew was wrong. Correct?‑‑‑Yes.
And you were willing to show that you were prepared to do something that was wrong in order to be the chosen one. Is that the case?‑‑‑Correct.
As I will later point out, the trial judge placed particular emphasis on these answers. He described it as 'significant evidence about his state of mind at the time'.
Although the defence put to the trial judge that the evidence should not be accepted at face value as an accurate statement about the accused's state of mind at the time, the trial judge considered that the appellant understood the questions that were being asked of him and specifically understood that he was being asked not about what he thought now as to the rightness or wrongness of his conduct, but what he thought at the time. He concluded that the accused genuinely told the court that he knew at the time that what he did to his mother was wrong, even though his conduct was related to his deluded belief that it was necessary for him to perform a test to demonstrate his worth to be the saviour, etcetera.
No conclusion was reached by the trial judge about the accused's state of mind at the time of the commission of the offence against Lileigh. His Honour said that the accused in giving evidence about that 'did not go quite so far' (as he did in relation to his state of mind at the time he attacked his mother), but it seems to me that the appellant did not deal with the subject at all.
There was considerable cross‑examination of the appellant about the actual circumstances in which Lileigh was killed. The appellant said that Lileigh had run to the door and that he had gone over to her and strangled her. Later, he said that Lileigh had walked back to the couch and sat down. The prosecutor put it to the appellant that he was making the whole thing up, but the appellant denied it. He said that Lileigh was sitting on the couch and he could remember putting his hands around her neck. He said he put his hands around her throat and his hands went tense around her throat. He said that she closed her eyes, went limp and stopped moving, and he placed her on a rug in the lounge room.
It was put to him that he stomped on her, but he said he could not recall doing so. He had no explanation as to how his sister's jaw had been broken, or how she ended up with haemorrhaging in her head. He said he saw no blood coming from her. He said he had no memory of Lileigh calling out, 'You're terrible'. It was put to him that he had strangled Lileigh to stop her screaming, but he said, 'Not to my memory, no'.
It was put to the appellant that after the killings, he had showered because he had blood on him. The question was directed at showing that the appellant was functioning normally. The appellant said he could not recall if that was the specific reason, although he could think of no other reason why he might have done so.

The essence of the prosecution approach to the question of unsoundness of mind of the appellant is indicated by the following question:
Mr Hone, isn't it the case that you, realising the enormity of what you had done - the horrific nature of what you had done to your mother and your little sister, you wanted to impress on the authorities immediately that you were not of your right mind and that's why you went walking naked down the street?‑‑‑No, that's not the case at all.

Psychiatric evidence

Dr Mircea Schineanu told the court that he was a qualified consultant psychiatrist, who had worked in psychiatry for 12 years before coming to Australia. For 19 years he had worked in Australia at the Graylands Hospital. He had been in the forensic unit for the past eight years. He stated early in his evidence how he saw his role in testifying before the court:
I see my role as really being here not for defence, not for prosecution, even if I am called and I wrote a report for the defence, that report, in fact, is very similar to the report which I wrote to the court so I am here for the court and here to represent and to tell the court what is known about mental illnesses and probably this is my stand.
Dr Schineanu was asked for his view as to whether the appellant was mentally ill at the time of the killings. The question and answer were as follows:
[W]hat is your view as to whether he was mentally ill at the time of the killings?‑‑‑I'm not sure that I understand clearly your question but I will answer and if you think that is not the right - or I don't cover it, let me know please. So based only on my assessment, I find out that Mr Hone at that time - he was suffering from a mental illness and this is based the mental state examination. He was presenting with typical characteristic symptoms of a mental illness. He was having perceptual disturbances in different locality, especially auditory hallucinations. He was having delusions, what we would describe polymorphous delusion which means they are colourful and quite rich. He was having thought disorder. His emotional state, his affect, was abnormal. All these symptoms, which are the main symptoms for reaching a diagnosis of a mental disorder, they were present at that time, so that was the basic conclusion what I reach after I saw him.
Dr Schineanu was then asked his opinion in relation to the appellant's capacity to know that he ought not to do the acts which caused the deaths of his mother and sister. He said:
My opinion was that Mr Hone was deprived of the capacity to know that he ought not to do the act at the time of the index offence, and this was in fact based on the fact that at that time he was under the influence of florid psychotic symptoms caused by a disease of the mind. At the time he believed in those delusion what he had, that he was a chosen person to save the world, that he had the mission to do that, and most importantly the foundation of his belief was his psychosis, was his irrefutable certainty in his delusion, in all his symptom, hallucinations. So at that time, being affected by psychosis, Mr Hone was not any more accessing personalised cognitive perspective. The world for him had no personalised meaning and instead he was a passive recipient of incoming sensory from everywhere, what he was seeing, what he was thinking, what he was - from outside, I mean, and from inside from his own mind. At that time he was so intensely psychosis - psychotic, that his psychosis was so intense. He was so immersed in that psychosis and so absorbed by what was going on in his mind that, by analogy, I would say that he acted like an automaton - like a robot, and he was not able to reason and to have normal judgment to know that he ought not to do his act, because his mental illness in fact is causing a defect in reasoning and deprive him of the capacity to appreciate the wrongfulness of his act, and therefore he didn't know that he ought not to do that act.
Dr Schineanu was asked whether the appellant's behaviour in showering after the killings was consistent or inconsistent with somebody who was floridly psychotic. He replied that it was not inconsistent and gave the following explanation:
It is not inconsistent, and that is what is so difficult to understand - the mental illness and how our brain function. To have a mental illness is not similar to be profoundly demented. A profoundly demented person - a very demented person may not be able to have a shower because he doesn't know how to open it and not able to do a cup of tea. A mentally ill person is not deprived of those capacities because the cognitive functions are not so impaired to deprive him of that capacity. So a psychotic person, especially - even when he's psychotic, to be psychotic doesn't mean that - the psychotic process has to influence and to contaminate all the aspects of the human life. A psychotic patient - he still can have a shower, he still can make a cup of tea.
...
Are you able to explain that in the context of your opinion that Mr Hone was psychotic at the time?‑‑‑I would just like to, if I am able to, because I read while I was waiting this morning - the transcript came yesterday, I think, and finally this morning, your Honour - first of all, that my explanation without looking on the transcript would be that, yes, I would consider that it is a kind of half‑automatic type of behaviour. The psychosis really doesn't interfere with him knowing that is a shower, to turn the water on and to get out of the shower. It is not - so he would be able to have a shower.
Dr Schineanu was asked whether the appellant's account of Lileigh being told to run to Ned's house, running to the door, twisting the handle and then going back to the couch where he put his hands around her neck, if accurate, would affect the doctor's assessment of whether he was deprived of the capacity to know he ought not to do what he did. Dr Schineanu replied that it would not. He was asked to explain why and he said:
Can you explain that for us?‑‑‑Because, you see, the mental - our psychic doesn't function in a kind of sliced compartmentalised way
... that doesn't change my opinion that at that time he was so unaware and so psychotic that he was not able to reason to the extent that his behaviour was not normal. He was not able to reason and to see that what he was doing was unlawful. I don't think that he was capable at that time to do all those things.
You say you 'don't think', what is your level of belief about that?‑‑‑Well, probably it's a misformulation. I am convinced that at time he was but I don't think that this piece of information has any significance at least for me in making that judgment.
The next question and answer were important:
All right. I also want to ask you about some other evidence. He said he remembers being told he had to go home and punch his mother but he has no recollection of being told he had to stab her and no recollection of being told he had to do anything to his sister. Is that recollection of his consistent or inconsistent with your views?‑‑‑Once again I have to repeat myself unfortunately that for us makes such clear sense. Everything it's fitting in the context of somebody who is fully absorbed in a psychotic situation and his behaviour and everything was according with that situation that psychotic situation.
Dr Schineanu was asked about the appellant's statement that he knew it was wrong to go back and punch his mother. He said of the question and answer:
... it was a kind of trying to squeeze up, squeeze out from Mr Hone a certain answer, which it's so easy to be done in psychiatry because in psychiatry and in psychology that's what I was just trying to say earlier, that sometimes when we make people who have no clear recollection, clear memory, if we continuously are suggesting that a certain event happened they may accept it, but in this case I think that, for example, Mr Hone answer that question when he said that, 'From where I sit now, looking back at it, yes,' and that is in fact the essence of this debate. At this point in time Mr Hone is reanalysing. He is asked to reinterpret his psychotic behaviour, his psychotic state, two years ago ...
The matter was further pursued and Dr Schineanu said:
... for any mentally ill person who experiences a psychotic episode and we are asking to explain or to detail or to explain what was going through that person's mind at that time, it's very difficult to accept every answer of that person as being reflecting 100 per cent the reality what happen at that time. Why? Because now we are asking the patient - that person who at that time was psychotic but now is in remission, is not psychotic. At that time it was irrational. At this time is not irrational. His reasoning is normal. So that person in fact now finds himself in that difficulty to translate, to recall something which was mad and to translate to put in something which has a bit of reason, a bit of logic. In fact I find that in similar cases is extremely difficult and the translation, now that person when he's in remission and has a normal reasoning, is made with a lot of corrections and a lot of errors and therefore I don't think that I would be able to rely on that translation 100 per cent. I would always question how correct is today's statement with what happened in that person's mind at that time.
...
It is my opinion that Mr Hone, who was so unwell at that time, at that time he couldn't make decision. He couldn't choose. He didn't have the liberty because he was restrained in his liberty by his mental illness to decide what to do and what not to do.
To the judge, he added:
At that time he was not able to make a rational decision. He was not able to choose or to select what he would like to do. Even if he's saying to me this, I don't believe that because I know that there is not any evidence in psychiatry to support his claim, so therefore I would say that this is how he sees the day, what happened two years ago.
In my opinion, these were important answers in relation to the appellant's evidence about his knowledge of what was right or wrong when he went back to punch his mother.
Dr Schineanu was cross‑examined aggressively and at length. It was put to him that a person who is suffering psychosis and who is delusional can, nevertheless, know the difference between right and wrong. The doctor answered that this was correct, but that it required 'specification'. The next question and answer was:
Yes, but as a general proposition the fact that a person is floridly psychotic does not exclude a capacity to - necessarily exclude, all right - so does not necessarily exclude a capacity to understand right from wrong. You agree with that?‑‑‑No. I would agree that when a certain point in the psychotic state, a certain intensity, is reached I will say that there is no capacity to normal reasoning and there is no capacity for him to see that he is doing the right thing or the bad thing.
... There is a certain point when there is no way how a psychotic person could understand the difference between right and wrong.
Dr Schineanu was at pains to point out that the question could not be 'compartmentalised', saying:
I think that our way of thinking about mental state at the time of killing and how probably you think about it is a little bit different because you are compartmentalising and you are looking specifically to each element somehow independently from the next one, so you are taking out auditory command, auditory hallucinations. You want to put that under the microscope like it would not have any other connection with the delusions which he had during that episode and probably with his behaviour.
A key passage in the doctor's testimony was to the following effect:
What I tried to make you to understand or the court to understand, that is not so simple. He's not killing the mother because of auditory hallucinations. It was killing the mother because he was floridly psychotic at that time, and you may remember that in the morning I mention that it's so probably easy in court when you have a clear command auditory hallucination described but that is not the main reason why whoever kills under the auditory hallucinations of person. It is the psychotic state.
A further important passage was:
... if somebody had those hallucination, if the rest of his mental state, the rest of his psychic life, the rest of his cognition, of his reasoning, is not affected, that means he has no insanity defence. On the other hand if somebody may kill some person and there is no very specific auditory hallucination saying, 'Go and kill,' but everything at least from medical point of view points that his mental state was so disturbed that he could not make a decision and he was deprived of that capacity to know that he ought not to do the act, he has an insanity. This is how at least we were told and this is how the psychiatrists around the world see the psychotic states. It is not only auditory hallucination or some delusional material. It has to be looked at all in that context.
When cross‑examined about the appellant's statement that he knew it was wrong to go back and punch his mother, Dr Schineanu said:
Mr Fiannaca just going back to your own court, initially when you ask him:
Would you not ordinarily want to punch your mother -
he said, 'It's something that has never really crossed my mind,' and you said, 'Because it was wrong,' and he said 'Correct. It is.' After then you said:
And you knew it was wrong to do that, didn't you -
and Mr Hone said, 'From where I sit now and looking back at it, yes,' which is exactly a correct answer based on what we know in psychiatry. He couldn't say more ...
When it was put to Dr Schineanu that the appellant had said that, as he sat in Margaret River, he regarded it as a test to go back to his mother and punch her and that he was being asked to do something that he knew was wrong. The doctor said:
This is kind of suggesting to a person a certain answer which in his case it's easy to accept and to say, 'Yes.'
There were numerous other passages in Dr Schineanu's evidence where he made it clear that his opinion was that at the time of the killings, the appellant was an irrational and insane person who did not have the capacity to know that he ought not to do the act. He lacked 'combative thinking'.
Dr Schineanu was at pains to impress upon the court that, from a psychiatric point of view, when assessing mental illnesses and understanding psychoses, it is difficult, if not impossible, to make artificial divisions of mental functioning. As the doctor put it, that does not help to understand the mental illness. The same observation was repeated to defence counsel during re‑examination, when Dr Schineanu pointed out that psychiatry is a different discipline from many other medical disciplines, such as cardiology. Psychiatrists do not have many tests and tools to help in reaching a diagnosis. Their main examination tool is listening, questioning and weighing what they hear. It is dangerous and wrong to compartmentalise the understanding of mental functioning in units or fragments.
Dr Schineanu repeated in re‑examination what he had said to the cross‑examiner about the appellant's capacity to know right from wrong. He said:
Sorry, Dr Schineanu. I was asking you what you meant by saying 'knowing it was wrong'?‑‑‑What I mean is that as we look at mental illness, as we look at this time when this event occurred, in my view he was at that time holding unsound ideas, unsound feelings. He had unsound reasoning. Therefore, he was not able to appreciate the wrongfulness of the act at that particular time. Now, it's true that yesterday or before yesterday when he was here, somehow he admitted that, yes, he admitted what was right and what was wrong - the difference - but as I mentioned before, I don't know if that is really what he experienced at that time and what he was able to do at that time based on how we look at the psychosis and how we find that his mental state was at that time. We would be very surprised if he would be able to have this (indistinct) of normal reasoning or normal appreciation of what he was doing. This is especially - it was just, as I repeatedly said, the climax of his psychosis. I would not consider that is a reflection of what happened at that time in his mind and of his capacity to distinguish, to have the cognitive appreciation of what was right and what was wrong.
The trial judge picked up the question and the following was Dr Schineanu's answer:
On the basis that the words were said, yes?‑‑‑That the words were said, I would accept that he knew that there was some danger involved in his action. I was saying that he knew - let's say that he knew that the act was wrong, still, based on his mental state at that time, he believed that what he was doing he was entitled to do it because he acted based on his delusion and he thought that he has to save the world and his act in his delusional thinking very more slightly he regarded as a duty and therefore that people would appreciate that he was doing the right things to save the world ...

Conclusion of the trial judge on the psychiatric evidence

The trial judge reviewed the psychiatric evidence and summarised his understanding of the doctor's evidence in the following way:
My understanding of the way in which Dr Schineanu formed his opinion is as follows. He accepted, as do I, the evidence which establishes that the accused was suffering from delusional beliefs and the auditory hallucinations he reported, but Dr Schineanu's view was that it should be accepted that what he described as command hallucinations had, by the time the accused returned home, reached such a point of intensity as to overwhelm the accused so as to prevent him from having any capacity to do other than to follow the instructions. He could not, in that situation, be said to have a capacity to know that he should not perform the acts commanded because it would be wrong to do so, and he could not, in that situation, be regarded as having a capacity to control his actions. [179]
His Honour added:
Having formed an opinion, which I accept, as to the nature of the mental illness, and having formed an opinion about its growing intensity, he concludes that therefore the accused could not reason between right and wrong, and because of that incapacity he could not be regarded as having a capacity to control his actions. It is here that we part company. But it is that approach which led Dr Schineanu to say in evidence that he could not accept the accused's evidence that he did, at the relevant time, know that he ought not to do the acts in question, that it was wrong to do them. [182]
In my opinion, it was not for the trial judge to 'part company' with Dr Schineanu. The trial judge was not a psychiatrist. It was not for him to express a view on how a psychiatric conclusion should be reached. There was no competing evidence to suggest that Dr Schineanu was wrong in his conclusion that the growing intensity of the mental illness was such that the appellant could not reason between right and wrong.
The trial judge concluded that at the time of the killings, the appellant was mentally impaired within the meaning of s 27 of the Criminal Code. He was mentally ill as that term is defined. He suffered and continues to suffers from schizophrenia. He did not, however, accept that on Monday, 14 March 2005, the appellant's psychotic symptoms were 'peaking' or that they were generally worsening from what was a severe state. His Honour said that he did not see evidence to that effect. There was, however, expert opinion evidence from Dr Schineanu that, from all that he was told, this was the case.
The trial judge finally concluded:
On the balance of probabilities, I think the accused's psychotic state was causally linked to the killings, but I am not persuaded, on balance, that they resulted in the accused being deprived of the capacity to control his actions or to know that he ought not to do the acts which resulted in the deaths of his mother and sister. Indeed, I would conclude that the forensic evidence of what he did and establishing the decisions he made to carry out the killings and in the course of those events, is good evidence that he in fact had the capacity to control his actions. He had the capacity know that he ought not to kill his mother and sister, he had the capacity to know that it was wrong to do so. Nothing in the delusional system operating upon his mind removed that capacity, as I think he himself confessed in evidence. Despite that, he purposefully went about the performance of acts, the detail of which I have discussed when discussing the forensic evidence, which caused the deaths. I was not persuaded on the balance of probabilities of the lack of any relevant capacity. [187]

Having reached this conclusion, the trial judge found that there was overwhelming evidence that the appellant intended to kill both his mother and his sister, resulting in verdicts of wilful murder in each case.

Grounds of appeal

The grounds of appeal advanced by the appellant are as follows:
Errors in Rejecting: Dr Schineanu's Evidence
1.The Trial Judge erred in fact in rejecting the evidence of Dr Schineanu to the effect that the mental illness suffered by the appellant significantly impaired his thinking and his reasoning processes so that he was deprived of the capacity to know that he ought not do the acts which killed his mother and sister in that:
(a)the rejection of the evidence was based upon His Honour's characterisation of the opinion of Dr Schineanu as being based entirely upon the view that the delusions and command auditory hallucinations overwhelmed the accused so as to prevent him from having any capacity to do anything but follow the instructions contained in the hallucinations; (Reasons [173] ‑ [182]); and
(b)that characterisation was erroneous; Dr Schineanu's opinion was not based entirely upon that view (transcript 1036, 1063, 1098, 1101 ‑ 1104, 1161, Ex 68, p11) - rather his view was that the delusions and hallucinations were part only of the floridly psychotic state of the appellant.
2.The Trial Judge erred in law in rejecting Dr Schineanu's opinion in that in testing whether the appellant's psychosis had overwhelmed his capacity to engage in ordinary reasoning and decision making processes by looking at what the appellant actually did, he applied a test which required the appellant to prove his insanity to the standard of beyond reasonable doubt, when the onus upon the appellant was to prove his insanity on the balance of probabilities. (Reasons [180]).
3.The Trial Judge erred in law and, or alternatively, in fact in rejecting Dr Schineanu's opinion on the ground that Dr Schineanu did not first 'independently [form] the view that the evidence [led] to the conclusion that the appellant probably lacked' the identified capacities and then 'conclude that such incapacities were probably caused by the [appellant's] mental illness'; Reasons, para [181], [182]. There was no expert evidence nor was there anything else to support the Judge's conclusion that forming a view as to whether the appellant was deprived of the relevant capacities independently of and thus prior to forming a view as to whether the appellant was suffering from a mental illness would make an opinion as to the existence of those capacities more reliable than an opinion in relation to that issue derived by first forming a view as to the appellant's mental illness.
4.Further or alternatively to ground 3, the Trial Judge erred in law in failing to give adequate reasons for rejecting Dr Schineanu's opinion.
Errors in finding: that the Appellant had the capacity to know that he ought not kill his mother and sister
5.The Trial Judge erred in law in failing to give adequate reasons for finding that the appellant's evidence as to his state of mind while in town recited at para [164] of the Reasons was reliable evidence that he knew at the time of stabbing his mother that it was wrong to do so, in circumstances in which there was evidence to the contrary to which His Honour did not refer.
6.Further or alternatively to ground 5, the Trial Judge erred in fact insofar as he relied upon the evidence of the appellant recited at para [164] of the Reasons in support of a conclusion that the appellant had the capacity to know that he ought not do the act by which he killed his mother in that:
(a)any awareness that punching his mother was wrong revealed by the evidence was an awareness in the context of his deluded beliefs and auditory hallucinations summarised by the Judge at [155]-[157], accepting the appellant's evidence at T882-884; and
(b)those deluded beliefs and auditory hallucinations demonstrated that he could not reason with a moderate degree of sense and composure.
7.The Trial Judge erred in finding at para [187] of the Reasons that the appellant had the capacity to know that he ought not kill his mother and sister in that, insofar as he relied upon the evidence the subject of Grounds 5 and 6, he erred as alleged in those grounds.
8.If and insofar as the Trial Judge relied upon matters other than the evidence the subject of grounds 5 and 6, His Honour made an error of law in failing to provide adequate reasons for the conclusion in para [187] of the Reasons that the appellant had the capacity to know that he ought not to kill his mother and sister and that he had the capacity to know that it was wrong to do so in that His Honour did not identify the findings of fact that he relied upon to arrive at those conclusions.
9.The Trial Judge erred in fact in finding at para [186] of the Reasons that there was no evidence that immediately preceding and at the relevant time on 14 March 2005 the appellant's psychotic symptoms were peaking or generally worsening from a severe psychotic state in circumstances where:
(a)The appellant testified that:
(i)on 14 March 2005 he was under a god like sense of direction, that the voices were very guiding and that they seemed very real; and
(ii)while he was walking back from town to his house he felt like his brain was 'really tense' and 'cramping together'; and
(b)on 14 March 2005 the appellant acted on the delusional beliefs and auditory hallucinations as summarized by the Judge at paras [155]‑[157] of the Reasons, accepting the appellant's evidence at T 882-884.
Grounds of appeal and concise particulars of them are required to be stated succinctly (Supreme Court (Court of Appeal) Rules 2005 (WA) r 32(4)(b)). The grounds cannot be described as succinct.

Grounds 1 to 4

I propose to treat grounds 1 to 4 as a contention that the trial judge erred in rejecting Dr Schineanu's opinion that the appellant, having reached a floridly psychotic state of a certain intensity, had no capacity for normal reasoning and no capacity to see that what he was doing was wrong.
Ground 2 contends that the trial judge applied a test which required the appellant to prove his insanity to the standard of beyond reasonable doubt. I do not think, however, there is any substance for that contention. The trial judge was aware at all times that the standard of proof was proof on the balance of probabilities (see reasons [26]).
I have already mentioned that the trial judge did not accept Dr Schineanu's opinion that the intensity of the appellant's psychotic state was such that, at the relevant time, he could not reason between right and wrong when he caused the death of Ms Hone and of Lileigh. I have quoted passages from the evidence of Dr Schineanu which make it clear that the doctor's view was that the appellant was deprived of the capacity to know that he ought not to do the acts at the time of each of the killings and that he was not able to reason at the time of those killings. He said that the appellant did not have normal judgment to know that he ought not to do the act (in each case) because his mental illness was causing a defect in reasoning which deprived him of the capacity to appreciate the wrongfulness of his act.
Dr Schineanu's view was that the appellant was at a peak of maximum disturbance. He was so psychotic that he was not able to reason. His behaviour was not normal. He could not reason and see that what he was doing was 'unlawful'. By this, Dr Schineanu meant that the appellant was unable to distinguish between right and wrong.
It seems to me that Dr Schineanu was formulating a proposition which was easy to understand. The appellant was suffering from such a psychotic condition that he was unable to make any decision. As the doctor put it, 'he couldn't choose'. He did not have the liberty to make a decision because he was restrained in his liberty by his mental illness to decide what to do and what not to do. Dr Schineanu expressed the opinion that there is a certain point when there is no way by which a psychotic person can understand the difference between right and wrong. That point had, in his opinion, been reached by the appellant on the day of the killings.
The trial judge concluded that Dr Schineanu had formed a view that, because of the growing intensity of the appellant's psychotic condition, the appellant 'therefore' could not reason between right and wrong. The doctor's opinion was not quite as simplistic as that. It was that a point had been reached at which the appellant was so floridly psychotic that he had no capacity for normal reasoning. For this reason, he had no capacity to distinguish the difference between right and wrong. Dr Schineanu was not saying that in every case a psychotic state will mean that a person suffering that state will have no capacity to understand the difference between right and wrong. He was dealing specifically with the appellant and the evidence in relation to his condition on the morning of the killings.
It is my view that Dr Schineanu's evidence in relation to the appellant's condition and his capacity to understand the difference between right and wrong was compelling and ought to have been accepted by the trial judge. Dr Schineanu's opinion was not based solely upon a view that psychotic people are unable to distinguish between right and wrong, but was based upon what the appellant told him in this case and what the independent evidence revealed. That independent evidence revealed a man who was undoubtedly suffering a mental illness. The intensity of it was testified to by a number of witnesses who saw the appellant in the days leading up to and on the day of the killings. The appellant's behaviour was clearly abnormal. He was a seriously disturbed person. On the day of the killings, his mother did no more to him than criticise him for failing to keep the unit clean and for failing to wash the dishes. Ms Hone was so concerned about him that she made a number of telephone calls on the morning of 14 March seeking professional assistance. Unfortunately, she was unable to make contact with either the Bunbury Hospital, the Busselton Medical Clinic or the Margaret River Community Mental Health Service. Had she been able to do so, it is possible that the events that then followed might not have occurred.
The appellant, for no fathomable reason, returned to the unit in which Ms Hone and Lileigh were present. He proceeded to attack Ms Hone in a brutal manner and to cause her death in the way in which I have described. He then caused the death of Lileigh. Perhaps significantly, he said that he told Lileigh 'to run'. This is consistent with the knowledge that he was about to do something terrible to her and was powerless to prevent it.
Having killed both Ms Hone and Lileigh, the appellant behaved in a bizarre manner. It is true that he showered and that, in so doing, he must have intended to wash blood from his body. However, Dr Schineanu gave a cogent explanation why a person in a psychotic state might still be able to do that. I have quoted the passage in which Dr Schineanu made it clear that a mentally ill person is not deprived of all capacities. His cognitive functions are not so impaired as to deprive him of the capacity to shower, as the appellant did.
On the other hand, the appellant made no attempt to conceal what he had done. He left his clothing in the unit. He left the knives in the unit. He made no attempt to clean up the blood which was visible in different parts of the unit. He made no effort to dispose of the bodies. Instead, he walked naked to the town of Margaret River. Everything suggested that he was, indeed, suffering from an intense psychosis which had reached its peak at the time the killings were carried out. This was the opinion of Dr Schineanu. It was because of Dr Schineanu's opinion about the intensity of the psychotic state that he concluded that the appellant was restrained in his liberty to determine what he could do and what he could not do, and precluded from reasoning the difference between right and wrong.
I can find no basis upon which the trial judge could reject the opinion of Dr Schineanu. It was expert opinion which was uncontradicted. There were ample facts upon which the opinion could be based. I can find no facts or circumstances which could be said to be sufficient to throw doubt on the opinion of Dr Schineanu. In my opinion, the trial judge should have accepted it.
Neither a jury nor a judge sitting alone are bound to accept and act upon expert evidence. But where there is no evidence to contradict that evidence, a verdict cannot be given contrary to it. The principles were well summed up by Roden J in Hall (1988) 36 A Crim R 368, where a number of relevant cases were reviewed. Roden J said:
Juries are not bound to accept and act upon expert evidence. Nevertheless they are not entitled to disregard it capriciously. These two propositions have found expression and support in a line of authorities developed in England with regard to the defences of insanity and diminished responsibility.
In Rivett (1950) 34 Cr App R 87, Lord Goddard CJ, said (at 94):
'The second matter for emphasis is that it is for the jury and not for medical men of whatever eminence to determine the issue. Unless and until Parliament ordains that this question is to be determined by a panel of medical men, it is to a jury, after a proper direction by a judge, that by the law of this country the decision is to be entrusted.
The Court of Criminal Appeal was there dealing with medical evidence relating to a defence of insanity.
Eight years later, when dealing with a defence of diminished responsibility, Lord Goddard showed the other side of the coin, in Matheson [1958] I WLR 474; 42 Cr App R 145, saying (at 478; 151):
'While it has often been emphasised, and we would repeat that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors' evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be "a true verdict in accordance with the evidence",'
In Bailey (1977) 66 Cr App R 31, another diminished responsibility case, Lord Parker CJ said (at 32):
'The court has said on many occasions that of course juries are not bound by what the medical witnesses say, but at the same time they must act on evidence, and if there is nothing before them, no facts and no circumstances shown before them which throw doubt on the medical evidence, then that is all that they are left with, and the jury, in those circumstances, must accept it.'
In both Matheson and Bailey, manslaughter verdicts were substituted for jury verdicts of guilty of murder, on the basis that the medical evidence was 'all one way', and there was no other material which would justify its rejection. It was otherwise in Walton [1978] AC 788; 66 Cr App R 25. The Privy Council was there considering a murder conviction where a diminished responsibility defence had been rejected. In the judgment, which was delivered by Lord Keith of Kinkel, there are observations that 'the jury were entitled to regard (the medical evidence) as not entirely convincing', and 'their Lordships have come to be of opinion that in all the circumstances the jury were entitled not to accept as conclusive the expression of opinion by Dr Bannister'. After a consideration of both Matheson and Bailey, the following statement of principle was made:
'These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the defendant before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence.'
The effect of those decisions is accurately summarised in Professor Smith's commentary on Walton in [1977) Crim LR 747 at 748:
'If the medical evidence is all one way and in favour of the accused and there is nothing in the facts and surrounding circumstances which could lead to a contrary conclusion, then a verdict against the medical evidence cannot be sustained. In the present case there were facts and circumstances in addition to the medical evidence and the jury was therefore entitled to reject that evidence'. (370 ‑ 371)
Allen J summarised the position as follows:
There is no rule of law that a verdict of guilty will be quashed as unsafe in any case in which the verdict is inconsistent with medical evidence called for the accused - even where no medical evidence has been called for the Crown. On the other hand there is no rule of law that an appellate court will not quash such a verdict - refusing to do so because it is open to a jury to reject the opinion of any expert witness. Each case is unique. The totality of the evidence must be weighed: Walton (1978] AC 788; 66 Cr App R 25. In assessing medical evidence a multitude of factors must be taken into account - including the standing of the expert, whether he expresses his opinion with conviction or with hedging, whether the opinion expressed in its nature seems reasonable or fanciful, whether it incorporates assumptions not founded upon the evidence given, and whether the evidence given, upon which the opinion is based, is to be believed. It is clearly settled that it can be unreasonable for a jury to reject medical testimony: Walton; Chester (1982] Qd R 252; 5 A Crim R 296. (380 ‑ 381)
Application of these principles to the present case confirms my view that the trial judge ought to have accepted the opinion of Dr Schineanu. He was a well experienced psychiatrist, whose qualifications were not in question. His view was unshaken in cross‑examination. His opinion was founded upon evidence as to which there was no relevant challenge (see Hall, 381 (Allen J)). The verdicts which were reached by the trial judge were verdicts which, in my opinion, he could not reasonably have come to.
Ground 4 contends that the trial judge erred in law by failing to give adequate reasons for rejecting Dr Schineanu's opinion. I can find no substance in this contention. The trial judge's reasons were more than adequate. The question is whether they were wrong.
I would therefore uphold grounds 1 and 3 of the grounds of appeal.

Grounds 5 to 9

Grounds 5 to 9 relate to the trial judge's conclusion that the appellant had the capacity to know that he ought not to do the acts by which he killed Ms Hone and Lileigh.
I do not consider there is any substance in ground 5, which contends that there was a failure to give adequate reasons for finding that the appellant's evidence as to his state of mind prior to the killings was reliable evidence. The trial judge gave full reasons for the conclusions he reached. The same observation can be made about ground 8 which challenges the adequacy of reasons for the trial judge's conclusion that the appellant had the capacity to know that he ought not to kill his mother and sister, and had the capacity to know that it was wrong to do so. Sufficient reasons were given for the conclusions reached by the trial judge.
The substantial grounds are grounds 6, 7 and 9. Grounds 6 and 7 contest the trial judge's conclusion that, from the evidence of the appellant himself, it could be concluded that the appellant had the capacity to know that he ought not to do the act by which he killed his mother and the act by which he killed his sister. Ground 9 contends that the trial judge erred in concluding that there was no evidence that, immediately preceding and at the relevant time on 14 March 2005, the appellant's psychotic symptoms were peaking, or generally worsening, from the severe psychotic state.

I have pointed out how the appellant answered in cross‑examination the question whether he knew what he had done to his mother was wrong. He was questioned about the matter twice. In his first answer, he made it clear that as he sat 'now', he found it hard to explain what he was experiencing. In his second answer he said that from where he sat now and looking back on what occurred, he knew it was wrong to punch his mother. Significantly, he told the cross‑examiner that it had never really crossed his mind to punch his mother. He agreed that this was because it was wrong. He then said that, looking back, he could see that it was wrong. He was then asked whether 'from where [he] sat in Margaret River looking forward to it', he regarded it as a test and he said he did. It was then put to him that this was because he was being asked to do something he knew was wrong. He answered in the affirmative. He was then asked if he was willing to show that he was prepared to do something that was wrong in order to be the chosen one and he said that this was correct.
There are two things to be said about these answers. The first is that they were given by the appellant as he sat in the witness box at his trial in February 2007. Whatever the appellant said, they clearly had an element of reconstruction. The appellant initially made it clear that, looking back, he could see that what he did was wrong. It was then put to him that he should consider the questions in the context of where he sat in Margaret River on the day in question. That begs the question whether he was capable of doing that. The second point is that the first question related to the 'test' and the second was itself related to the 'test'. I am not at all sure that the appellant's answers were a clear and unequivocal statement that, at the time he killed his mother, he was able to appreciate the difference between right and wrong . It was not put to him in that way. Further, the subject was not raised in relation to Lileigh.
The expression 'knew that what he was doing was wrong' imports a good deal more than the difference between right and wrong 'in the abstract'. Dixon J pointed this out in R v Porter:
I have used the expression 'know,' 'knew that what he was doing was wrong.' 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. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged. In considering these matters from the point of view of fact you must be guided by his outward actions to a very large extent. The only other matter which can help you really is the medical opinion. I think the evidence may be described as his outward conduct and the medical opinion. It is upon this you must act. The medical opinion included explanations of the course of mental conditions in human beings generally. (189 ‑ 190)
Applying this statement to the present case, it seems to me that Dr Schineanu's testimony made it very clear that, through the disordered condition of the appellant's mind, he could not reason about the question whether his acts were wrong 'with a moderate degree of sense and composure'. The opinion of Dr Schineanu was medical opinion which included 'explanations of the course of mental conditions in human beings generally'. In my view, it was persuasive opinion. It was that, when a certain point of intensity is reached in the psychotic state, there is no capacity for normal reasoning and no capacity for a person to see that what he is doing is wrong. This is exactly the concept that Dixon J formulated in R v Porter.
Dixon J pointed out in R v Porter that the question will often be whether a man, through disease, or defect, or disorder of the mind, could, or could not, think rationally of the reasons which, to ordinary people, make an act right or wrong. The trial judge seems to have overlooked this fact. His view was that, despite his psychotic condition, the appellant had the capacity to know that he ought not kill his mother and sister; that 'he had the capacity to know that it was wrong to do so'.
The trial judge placed considerable importance on the appellant's evidence in cross‑examination that, sitting in Margaret River, he knew that it was wrong to go back and punch his mother. The trial judge actually translated the appellant's answers on this point to his understanding in relation to both victims, but this was wrong. The appellant was only cross‑examined about his knowledge of what was right or wrong in relation to going back to punch his mother.
The trial judge quoted the relevant passage in the cross‑examination. His Honour was clearly influenced by this evidence, because he said:
For the defence it was put to me that I should not accept that evidence at face value as an accurate statement about the accused's state of mind at the time, but having heard the accused give that evidence and having seen him do so, I think it is clear that he did understand the context in which the questions were being asked. Specifically, he did understand that he was being asked, not what he thought now as to the rightness or wrongness of his conduct, but what he thought at the time.
For the defence it was put to me that if I should conclude that he was mentally ill at the time and was operating in a deluded state, I should also form the view that he was probably unable to reason with any reasonable sense and composure about the rightness or wrongness of his conduct, according to the standards of ordinary people. But in my opinion, as I have said, I should accept that the accused genuinely told the Court that he knew at the time that what he did to his mother was wrong, even though his conduct was related to his deluded belief that it was necessary for him to perform the test to demonstrate his worth to be the saviour, the chosen one, to the voices in his mind. [165] ‑ [166]
Linked to this conclusion was the trial judge's conclusion about the appellant's killing of Lileigh. He said:
If he made the statement telling Lileigh to run, to my mind it implies that, knowing the child had witnessed and indeed had tried to stop the killing of Ms Hone, then unless it was beyond his power to do so because she had made her escape, he would have to silence her. I add that whatever may have been the position with respect to auditory hallucinations affecting Ms Hone, the accused gave no evidence to suggest that his delusion involved, in any way, harming his sister. [169]
In my view, this conclusion runs counter to the evidence of the appellant and that of Dr Schineanu. It predicates that the appellant was not suffering a psychotic condition which was peaking at the time of the killings, but rather that the appellant made a cold and calculated decision that, because Lileigh had observed the killing of Ms Hone, she, too, would have to be killed unless she was able to escape. The two things do not fit easily together. If he was telling Lileigh to escape (and the trial judge does not suggest otherwise), it does not fit with a calculated killing which was not driven in any way by the appellant's psychotic state. Rather, the statement to Lileigh to run seems more consistent with the appellant's peaking psychotic condition in which he knew that if Lileigh did not escape, he might be driven to do something terrible to her. Also, it is hard to see why, he should have decided to kill Lileigh because she had witnessed the killing of her mother. As I have said, the appellant made no effort to conceal what he had done. Had he been capable of any form of rational thought, it must have been obvious to him that, by walking naked down the street, he would draw attention to himself, that his bloodstained clothes would soon be found and that his fingerprints were on the knives that had been used, the handle of one of which was lying on the floor, close to his mother's body.
The cross‑examination, upon which the trial judge placed emphasis, did not proceed to investigate whether the appellant knew it was wrong to kill his mother (or his sister). It was not suggested that the voices heard by the appellant told him to kill. The escalation from a direction to punch to a killing is inexplicable. Punching his mother in the face was one thing for the appellant, but killing his mother was an entirely different thing. Although a normal person might know that to punch a person in the face is wrong and to kill another is most certainly wrong, it cannot be assumed that the appellant, labouring as he was under a florid psychotic condition (which on the evidence of Dr Schineanu had peaked) knew that it was wrong to punch and also wrong to kill.
An inescapable aspect of the case is that although there had been some degree of conflict between the appellant and his mother, it was not deep‑seated. The appellant had nothing to gain from his mother's death. Likewise with Lileigh. By all accounts, the appellant got on well with both of them. These facts, together with the actual circumstances of the killings, point to something at least very odd about the appellant's mental state at the relevant time.
The trial judge was not persuaded on balance that the appellant's psychotic state resulted in him being deprived of the capacity to control his actions or to know that he ought not to do the acts which resulted in the death of his mother and of his sister. He said:
I would conclude that the forensic evidence of what he did and establishing the decisions he made to carry out the killings and in the course of those events, is good evidence that he in fact had the capacity to control his actions. He had the capacity [to] know that he ought not to kill his mother and sister, he had the capacity to know that it was wrong to do so. Nothing in the delusional system operating upon his mind removed that capacity, as I think he himself confessed in evidence. Despite that, he purposefully went about the performance of acts, the detail of which I have discussed when discussing the forensic evidence, which caused the deaths. I was not persuaded on the balance of probabilities of the lack of any relevant capacity. [187] (Emphasis added)
The trial judge's reference to the appellant's confession in evidence seems to me to be an overstatement of what the appellant, in fact, said. In any event, Dr Schineanu said he would be very surprised if the appellant could have normal reasoning or normal appreciation of what he was doing, given the climax of his psychosis which existed. The trial judge does not appear to have appreciated or accepted that conclusion.
Ground 9 contends that the trial judge erred in concluding that there was no evidence that, immediately preceding and at the relevant time on 14 March 2005, the appellant's psychotic symptoms were peaking, or generally worsening from a severe psychotic state. However, I have set out the evidence that supports a conclusion that the symptoms were peaking ([98], [99] and [104]). On this evidence, and on his own conclusions drawn from his expertise as a psychiatrist, Dr Schineanu formed that opinion. In my view, it was a compelling conclusion.
In my opinion, there is substance in grounds 6, 7 and 9 and I would uphold them.

Conclusion

This was a case in which the killing of Ms Hone and of Lileigh were really inexplicable other than as the acts of a person suffering from a mental illness. This illness had the result that the appellant was in such a state of mental impairment as to be deprived of the capacity to know that he ought not to do the acts. The appellant was suffering from a psychotic condition which was florid and which, at the relevant time, made him irrational and deprived him of normal reasoning. On the evidence, he was unable to know that his acts were wrong in the sense described by Dixon J in R v Porter:
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?
The trial judge accepted that the appellant had satisfied him on the balance of probabilities that he was mentally impaired within the meaning of s 27 of the Criminal Code.
By 14 March 2005, the appellant was in a serious psychotic state. Although the trial judge was unable to find evidence that the psychotic symptoms were peaking, or generally worsening from a severe state, the evidence suggested to the contrary. Independent witnesses testified to the appellant's bizarre behaviour in the days leading up to and on 14 March. Everything suggests that his condition was peaking. Dr Schineanu concluded that it was.
Although the trial judge found himself unable to accept that the appellant was deprived of the capacity to know that he ought not kill his mother and sister, and had the capacity to know that it was wrong to do so, there was, in my opinion, no justification for that conclusion. It was contrary to the medical evidence, which evidence was compelling. The trial judge's conclusion sought to separate the appellant's mental impairment and his capacity to know right from wrong. Dr Schineanu went to considerable lengths to stress that a person experiencing the degree of psychosis suffered by the appellant on 14 March 2005 suffered in turn a defect in reasoning which deprived him of the capacity to appreciate the wrongfulness of his act. Dr Schineanu discounted the appellant's answer in cross‑examination that he understood that going back to punch his mother was wrong by pointing out that, at the relevant time, he was irrational. He did not have normal reasoning. As he put it:
I would always question how correct is today's statement with what happened in that person's mind at that time.
On the totality of the evidence, there was, in my view, only one conclusion that could be reached. That was that the appellant was suffering from a mental illness which constituted a mental impairment within the meaning of s 27 of the Criminal Code and that mental impairment deprived him of the third of the capacities mentioned in s 27; namely, the capacity to know that he ought not to do the acts of killing Ms Hone and Lileigh. The trial judge's conclusion to the contrary cannot be sustained and accordingly the appeal must be allowed. The specific grounds of appeal that I uphold are grounds 1, 3, 6, 7 and 9.

[2007] WASCA 283

12/11/2007