R v Lavell

[2002] WASC 200

R -v- LAVELL [2002] WASC 200

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 200
Case No:	INS:18/2002	Heard:	5-7 AUGUST 2002
Coram:	EM HEENAN J	Delivered:	12/08/02
No of pages:	23	Judgment Part:	1 of 1
Result:	Not guilty on the grounds of insanity Acquitted of attempted murder
Category:	B
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Parties:	THE QUEEN SHANE ROGER LAVELL
Catchwords:	Criminal law procedure Trial by Judge alone Attempted murder Alternatively doing grievous bodily harm with intent Accused repeatedly stabbing his father in the neck Prior history of paranoid schizophrenia Defence of insanity Nature of special verdict
Legislation:	Criminal Code, s 27, s 283, s 294, s 297, s 594, s 651 and s 653 Criminal Procedure Act (1986) NSW
Case References:	Butera v Director of Public Prosecutions (Vic) (1987) 174 CLR Fleming v The Queen (1998) 197 CLR 250 Jones v Bartlett (2000) HCA 56; (2000) 75 ALJR 1 Stanton v R (2001) 24 WAR 233 Ward v The Queen (2000) 23 WAR 254 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : R -v- LAVELL [2002] WASC 200 CORAM : EM HEENAN J HEARD : 5-7 AUGUST 2002 DELIVERED : 12 AUGUST 2002 FILE NO/S : INS 18 of 2002 BETWEEN : THE QUEEN

Crown

AND

SHANE ROGER LAVELL
Accused

Catchwords:

Criminal law procedure - Trial by Judge alone - Attempted murder - Alternatively doing grievous bodily harm with intent - Accused repeatedly stabbing his father in the neck - Prior history of paranoid schizophrenia - Defence of insanity - Nature of special verdict

Legislation:

Criminal Code, s 27, s 283, s 294, s 297, s 594, s 651 and s 653

Criminal Procedure Act (1986) NSW

Result:

Not guilty on the grounds of insanity

Acquitted of attempted murder

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Category: B

Representation:

Counsel:

Crown : Mr J Mactaggart
Accused : Mr P J Hogan

Solicitors:

Crown : State Director of Public Prosecutions
Accused : Andree Horrigan

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

Butera v Director of Public Prosecutions (Vic) (1987) 174 CLR
Fleming v The Queen (1998) 197 CLR 250
Jones v Bartlett (2000) HCA 56; (2000) 75 ALJR 1
Stanton v R (2001) 24 WAR 233
Ward v The Queen (2000) 23 WAR 254

Case(s) also cited:

Nil

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1 EM HEENAN J: On 9 June 2001 in East Victoria Park Mr Roger Patrick Lavell was attacked and stabbed repeatedly in the neck and upper body. His son Shane Roger Lavell, now aged 24 years has been presented to this Court on an indictment charging him with the following offences:

1. On 9 June 2001 at East Victoria Park he attempted to unlawfully kill Roger Patrick Lavell.

2. And in the alternative, that on the same date and at the same place, with intent to do grievous bodily harm to Roger Patrick Lavell, he unlawfully did grievous bodily harm to Roger Patrick Lavell.

2 The accused has pleaded not guilty to both of the charges. By an order made by Hasluck J dated 29 July 2002, as a result of a prior application by the accused in open court, the trial on this indictment is to be before a Judge alone – Criminal Code 651A.

3 The trial was conducted before me on 5, 6 and 7 August and I must now make my findings and give my verdict as required by s 651B. In doing so this judgment is to include the principles of law which I have applied and the findings of fact on which I have relied (s 651B(2)). It is also provided by s 651C that, in relation to such trials without juries, if any written or other law (a) requires a warning, information or instruction be given to a jury in certain circumstances; or (b) prohibits a warning from being given to a jury in certain circumstances, the Judge in a trial by Judge alone is to take the requirement or prohibition into account if those circumstances arise in the course of the trial.

4 In Fleming v The Queen (1998) 197 CLR 250, in a case involving a trial of aggravated indecent assault before a Judge alone in New South Wales under s 32 of the Criminal Procedure Act(1986) NSW, which is similar to the provisions of s 651 of the Criminal Code (WA) it was held that there had been an error of law amounting to a substantial miscarriage of justice in that case by the trial Judge failing to demonstrate clearly that the warning required by law for corroboration had been taken into account. The High Court decided that not only must the principles of law applied by the Judge be stated but that there must be exposed the reasoning process linking the principles of law and the findings of fact and justifying the latter and, ultimately, the verdict.

5 In the present case, therefore, it is necessary to outline the principles of law which I consider should be applied in this case and to explain how these are applied in making the findings of fact and in reaching an

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ultimate verdict. In the first place, the onus is upon the Crown to prove every element of an offence charged against the accused person and to do so beyond reasonable doubt. Not only does this require the Crown to prove that the accused carried out the actions which are the basis of one or other of the offences charged, that in doing so he acted with a specific intent either to kill or to do grievous bodily harm as alleged, but the Crown must also establish beyond reasonable doubt that the actions of the accused were willed actions in the sense that they were voluntary actions not performed under the influence of any sane automatism. It is also necessary to note that in the present case, where the defence of insanity under s 27 of the Code has been expressly relied upon by the accused, that the onus of establishing insanity within the meaning of s 27 rests upon the accused, but that the burden of proof of insanity is upon the balance of probabilities and not the higher burden of proof beyond reasonable doubt.

6 The case for the prosecution was that the accused's father Roger Patrick Lavell, met his son by pre-arrangement on the afternoon of 9 June 2001 and drove him to a unit at 2 Dane Street, East Victoria Park where the accused had been living. This was to assist the accused in moving his belongings and furniture from that unit to another house at Armadale to which his son was shifting. The accused, who had been diagnosed in June 2000 as suffering from schizophrenia and who had been prescribed anti-psychotic medication to control his symptoms had not been taking his medication for quite some time. In his father's car, on the way to the Dane Street unit on the afternoon of 9 June, the accused asked his father whether the father had molested him as a young child. This is the first occasion that any such enquiry or accusation of such conduct was ever put by the son to the father and it is now acknowledged by the accused to be entirely groundless. Mr Lavell denied and rejected his son's enquiry but the accused was unconvinced and conceived the idea that his father had indeed molested him when very young. On arrival at the Dane Street unit in East Victoria Park both men went inside. Mr Lavell Senior then went to the toilet at the unit. While the father was in the toilet the accused took a large carving knife from the kitchen and hid waiting for his father to come out of the toilet. As his father came out of the toilet the accused attacked him and stabbed him five or six times in the neck and upper body region with the large carving knife. In the result the blade of the knife was bent at right angles to the shaft as a result of the force employed.

7 The accused's father managed to get away out of the unit to the pathway outside and to begin to move away, with his hands to his wounded neck, in an attempt to staunch the bleeding. The Crown alleges

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that there was a short interval during which the accused discarded the bent carving knife, but went to the kitchen sink and seized another shorter, thinner bladed knife and then followed his father outside. On the verge outside the unit near the edge of Dane Street the accused then attacked his father again, stabbing him several times in the upper neck, chest, shoulder or back with the smaller knife. The father, although already wounded and bleeding, was attempting to fend his son off and to get away from him. He staggered across Dane Street and was helped by a young man and a young woman who had been using the laundromat in Dane Street. They had both seen what had taken place on the verge outside the unit and on the edge of Dane Street and at first believed that the younger man had been punching and beating the older man. Only when Mr Lavell Senior came closer did they notice that he was bleeding. The young woman fetched a towel for Mr Lavell Senior to try and stem the flow of blood.

8 The accused followed his father across the verge outside the unit to near where the young man and woman were with his father. He stopped a short distance away and they then both saw that he was holding a small knife. The woman remonstrated with him and he left the scene. An ambulance was called and the police notified. Police officers in patrol cars were quickly at the scene and followed a tow truck which had kept the accused under observation. They arrested him in a car park a short distance away.

9 After being cautioned by the police officers the accused showed them where he had dropped the second knife in an alleyway between the laundromat at Dane Street and the car park where he was arrested. The accused was taken to a police station and agreed to participate in a videotaped interview in the course of which he admitted stabbing his father. It will be necessary to detail the statements which he made in the course of that interview more fully later.

10 Mr Lavell Senior was conveyed by ambulance to Royal Perth Hospital where he underwent emergency surgery for injuries which were so severe that his life was in danger. As a result of intensive surgical and medical treatment he has, fortunately, survived but so great was his blood loss that he has suffered irreversible brain damage and partial right-sided paralysis. His injuries and their consequences are such that he has no memory of the events of the afternoon of 9 June 2001, either of the journey in the car with his son, or the events in the unit at Dane Street and their immediate aftermath. These injuries and their consequences have resulted in Mr Lavell Senior becoming unfit for his previous occupation

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as a clinical psychologist in the State Police Department and his disabilities are such that he is presently unemployable.

11 None of this was disputed or challenged by the accused. Rather, the accused asserts that, by reason of his condition of paranoid schizophrenia which was operating at the time he was not criminally responsible for the attack upon his father by reason of insanity which satisfies the criteria of s 27 of the Code. He also denied any intention to kill his father.

12 Therefore, in this case, it is necessary for the Crown to prove beyond reasonable doubt:

• that the accused unlawfully attacked his father at or outside the Dane Street unit on the afternoon of 9 June 2001;

• that the attack carried out was a willed, that is voluntary, act of the accused not performed under the influence of any condition of sane automatism;

• that the attack was undertaken by the accused either with the intention to kill the father or, for the alternative charge, with the intention of causing him grievous bodily harm;

• for the alternative charge, that the injuries inflicted by the accused did cause his father grievous bodily harm, that is bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health;

• that the attack and the injuries inflicted were not otherwise justified or excused by law.

13 Counsel for the Crown submitted, and counsel for the accused agreed, that by virtue of s 594 of the Code the accused might be convicted of any other indictable or simple offence under the Code, or any other indictable offence, which is established by the evidence and which is an element or would be involved in the commission of the offence charged in the indictment. So a conviction for doing grievous bodily harm, contrary to s 297 of the Code, would be open if it were established beyond reasonable doubt that, acting voluntarily, the accused inflicted grievous bodily harm on his father but it was not established that he did so with an intent to kill or with an intent to cause grievous bodily harm. It is possible

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that convictions for other lesser offences might also be open but, having regard to the evidence adduced, especially regarding the injuries suffered by Mr Roger Patrick Lavell, those possibilities do not in fact arise in the present circumstances.

14 On the evidence there is no doubt that the accused did attack his father in and outside the unit at Dane Street, East Victoria Park on the afternoon of 9 June 2001 by stabbing him repeatedly and thereby causing him grievous bodily harm. Nor is there any doubt that, in doing so, the actions of the accused were willed and voluntary in the sense that he was not behaving under the influence of any non-insane automatism. The possibility of such automatism was not raised by the accused and I am satisfied that it does not arise on the evidence. It is equally clear, beyond any doubt, that there was no lawful justification or excuse for this attack and none was suggested by or on behalf of the accused.

15 The nature of the injuries sustained by Mr Roger Patrick Lavell are set out in Exhibit 1, a report from his treating specialist Dr Kim Fong FAFRM and these were also confirmed and described by Dr Fong in evidence at the trial. In this regard Dr Fong's report contains the following passages:

"Mr Lavell is a 46 year old Clinical Psychologist. On 9 June 2001 he received multiple stab wounds to his neck and upper body region---. These stab wounds resulted in various forms of structural damage to the surrounding muscles, arterial vessels and included a penetrating wound into the right lung. The massive loss of blood then led to Mr Lavell suffering a circulatory collapse, leading to severe hypotension and under-perfusion of his vital organs. Mr Lavell received an urgent transfusion of a total of 13 units of blood. His condition was complicated by the development of a coagulation disorder.

Mr Lavell underwent emergency surgery to explore the penetrating stab wounds to his neck. Various muscle structures were repaired including blood vessels which were identified and ligated. A large chest cavity haematoma were surgically drained. Mr Lavell had a very stormy recovery course, requiring a 17 day admission to the Intensive Care Unit.---My last examination of Mr Lavell took place in early November (2001). Physically his initial right sided limb weakness had improved significantly, but he still had some reduced strength and dexterity of his right sided limbs.

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His major disability relates to a severe and probably permanent level of cognitive deficiency. Mr Lavell has severe deficits affecting his attention, memory, abstract thinking and problem solving skills."

In the course of his oral evidence, Dr Fong said that Mr Lavell would almost certainly have died had it not been for the prompt and intensive medical emergency treatment and blood transfusion. He also explained that the normal volume of circulating blood for a man is about eight units. So by requiring transfusion of 13 units of blood, Mr Lavell had in effect lost about one and a half times his entire blood volume. No doubt some of this loss occurred during and because of the surgery but that was still as a consequence of the injuries inflicted upon him.

16 Mr Roger Patrick Lavell was called as a witness for the Crown and gave evidence. He confirmed that he had no recollection of the events of the afternoon and evening of 9 June 2001 and that he was presently unemployed. He was obviously severely incapacitated and showed limitation of movements and inability to use his right arm. Accordingly, I find that the stab wounds inflicted upon Mr Roger Patrick Lavell caused him grievous bodily harm.

17 The accused has admitted that it was he who attacked and stabbed his father. This admission was made in the course of a videotaped interview to the police officers on the evening of 9 June 2001 (Exhibit 7) and again when he gave evidence on oath before me at this trial. The videotaped interview with the accused took place at the Cannington Police Station after he had been arrested and cautioned. It is a videotaped interview of the kind referred to in Chapter LXA of the Code and took place between the accused and two police officers. It shows that the accused was informed, at the outset, that he had no obligation to participate in the interview or to answer questions. He was also warned that if he did answer a question the answer could be used against him in court later. The video interview included questions of the accused about his name, current address and his knowledge of his whereabouts at the time of the interview. I am satisfied that he gave his answers voluntarily, and voluntarily participated in the record of interview. I am also satisfied that throughout the course of the interview he was aware of his circumstances, could follow the proceedings rationally, and was able to give his own account of events.

18 In addition to these admissions, there was evidence before me from Clinton Paul Bisschops and Dajna Fistonic, the young man and the young woman, who had been at the laundromat in Dane Street, East Victoria

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Park and who saw a fight between two men on the verge or footpath outside the unit. Both these witnesses, whom I accept as completely truthful and reliable, described how they saw a younger man apparently punching an older man to the head and upper body and how the older man came across to them, sat down and was seen to be bleeding from the neck and upper body. The assailant followed the older man across the road and stopped only a short distance away from the pair. Mr Bisschops described how the assailant was then holding a knife. Miss Fistonic asked the assailant his name and he gave a name which Mr Bisschops did not hear. Mr Bisschops said that while he saw the younger man punching or beating the older man across the road from him opposite the laundromat, he heard the younger man say words to the effect "How could you do it---How could you do it to your own son", or something very similar. It was Mr Bisschops who stopped a passing tow truck and asked the driver to radio the police immediately and he saw this tow truck driver follow after the departing assailant. Miss Fistonic said that while at the laundromat in Dane Street with her boyfriend Mr Bisschops, she saw two men fighting across the road opposite the laundromat about 10 paces away. One of the men was throwing punches at the other to his head. She saw him strike about three blows and they appeared to be "pretty forceful". The other man was attempting to protect himself. The older man came across the road and sat down and asked her to call an ambulance, saying that he had been hurt. He was very distressed with injuries to his neck and chest. She fetched him a towel in an attempt to stem the bleeding. The assailant followed and stood a short distance away from Miss Fistonic and Mr Bisschops. Miss Fistonic saw that he was carrying a kitchen knife. She remonstrated with him and asked for his name and he replied "Shane". At this point she spoke to the injured man, who said words to the effect: "That's my son – he's psychotic and paranoid". An ambulance then arrived and took Mr Lavell Senior away.

19 A police officer, Constable S G Ford, gave evidence that he had been on duty on 9 June and was called to the Victoria Park Shopping Centre. He said he saw the accused, Shane Roger Lavell, walking in front of another police car in its headlights. He was called upon to stop and place his hands on his head. Constable Ford saw that he had blood on his hands and sleeve and that this appeared to be fresh. He was then cautioned and said that he understood the caution. He gave his name as "Shane". In response to a question, "Where's the knife Shane?", he said "Behind the Centre opposite a tavern". He then accompanied the police officers to a site in an alley way where the second knife was found. It was depicted in this situation, although protected by a plastic raincoat on account of rain,

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by the photograph, Exhibit 4. Another police officer, Senior Constable W R Matthews testified that he had been called to the laundromat at Victoria Park on the afternoon of 9 June. On arrival he saw an elderly man slumped in a doorway being assisted by a female. The, as a result of information received, he went to the car park at the shopping centre near the intersection in Mint Street. He saw a male person, the accused, walking and being followed by a tow truck driver. He saw him arrested and cautioned by another police officer and put in the rear of the police vehicle which Senior Constable Matthews was driving. He, too, heard the accused say that the knife was "in the alley way at the back of the laundromat". He attended at that scene and found the knife on the bitumen. He identified this knife (the second knife) as Exhibit 3.

20 A third police officer, Constable G Diamond, described how he attended the scene on the evening of Saturday 9 June and took a series of photographs inside and outside the unit at Dane Street and in the vicinity of the laundromat. These were received in evidence as Exhibit 6 (1-20). These include photographs of blood on the pathway outside the unit, blood near the front door of the unit, blood on the door sill, blood on papers on the floor of the entrance to the bedroom within the unit, a blood stained towel on the footpath near the laundromat and blood stains on the paved area outside the laundromat. These photographs include one taken of a large carving knife with its blade bent at right angles found in the sink of the unit at Dane Street but with no noticeable blood stains. This large carving knife became Exhibit 4 and was admitted by the accused to be the implement which he used in his first attack upon his father. None of this police evidence was challenged by the accused and I accept it all as being truthful and reliable.

21 Detective M E Langford then gave evidence of his interview at the Cannington Police Station with the accused in the presence of Detective Peter Clements on the evening of 9 June 2001. This is the interview which is the subject of the videotape (Exhibit 7). It is the videotape itself which is the evidence – Butera v Director of Public Prosecutions (Vic) (1987) 174 CLR 180. The account given in the videotape was not in any way challenged by the accused, although there were some minor inconsistencies between it and the evidence which he himself later gave but these did notrelate to any matter of significance.

22 Because of Mr Roger Patrick Lavell's impaired memory it is important to appreciate that the only account of events leading up to the attack and of what took place inside the unit at Dane Street is that which has been provided by the accused, in the videotaped interview and in his

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own evidence at this trial. In the interview the accused stated that as he and his father were driving towards the Victoria Park unit "For some reason I actually asked him if he had molested me because it just popped into my mind and just his reaction immediately I knew that he'd done it". He described how tears came to his father's eyes at the question and he interpreted (wrongly, as he now admits) this as meaning that his father displayed a guilty reaction to the question. On arrival at the unit the father went to the toilet and the accused said that he got a bit angry and got a knife from the sink. He said that he was "very, very nervous" and shaking and as soon as his father walked through the doorway from the toilet he started stabbing him in the chest, in the top side of the chest with the knife, in all about five or six times. Somehow his father managed to get out of the door. The accused said that he did not know what was happening and "somebody said to me to go and kill him". "This was just a voice. So I went and picked up a steak knife and I went and chased him and I just got very, very angry". The accused said that he stabbed his father a few times just on the top side of the shoulder area with the steak knife. He said that he saw two people on the side footpath who told him to drop the knife and that he did it. He turned around and co-operated with their voices and they told him to leave or to run or something of that nature. He turned around and started walking down the alleyway and "for some reason they were telling me that I was going to die".

23 He gave an account of hearing voices, and of his body changing and how thoughts ran into his mind about people killing him, of the FBI killing him and torturing him and of bikies torturing him. He said that he had been a complete mess and could not sleep. He said that he had not been eating and had just been walking around until all of his body had no more energy. He said that he did not feel as if he had control of his body. On further questioning by Detective Langford, the accused described the force he used when he first stabbed his father as being 9 or 10 on a scale of 1 to 10. He said that it was "definitely not me", it was someone else. He said that he had been possessed and that there had been forces or spirits which travelled through his unit. When asked what he had done with the knife that he used when he first stabbed his father, he said that he thought that he had just dropped it in the unit. After that he picked up the steak knife and went after his father for some reason, "As if I wanted to kill him". He said that he really did not know what he was doing at the time, but that he knew now that he had actually tried to kill his father and that he knew this was wrong. He said that he knew that before, but that when he was stabbing him "I'm pretty sure I was possessed." He demonstrated to the detectives how he had hidden around the doorway

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from the toilet with the knife and then swung his left hand with the knife and stabbed his father as he came into the room. He said:

"Then all of a sudden, you know, I just went like that and like --- as soon as I had the feeling that I was going to stab him, something that just took over me and I just stabbed him really quick like that. I just kept on stabbing him for some reason."

The accused then went on to tell the detectives that he had seen a psychiatrist and his own doctor just before seeing the psychiatrist. He assured the police that he had no criticisms of their treatment of him or of the way in which the interview had been conducted. At the completion of the interview he was charged with attempted murder and then he was transferred to Graylands Psychiatric Hospital where he was compulsorily admitted as an involuntary patient for assessment. With the evidence of Mr Roger Patrick Lavell, which I have already described, this completed the case for the prosecution.

24 The accused gave evidence and was cross-examined. He was born on 2 December 1977 and is aged 24 years at the time of this trial. He was aged 23 at the time of these events. He was born and raised at Armadale and is the eldest of four children in the family. His parents separated when he was aged about 7 years and he continued to live with his mother. However, cordial relations with his father were maintained and he and the other children used to visit his father nearly every weekend and would stay with his father for a week or so at a time during school vacations and at Christmas most years. While he had a few arguments with his father in the past there had never been any fights of a physical nature between himself and his father, nor was there any animosity between the two. As far as I could tell, the relations between father and son had been friendly and the father had taken a close interest in his son and in his other children at all times when they were growing up and endeavoured to maintain as close a relationship with them as was possible in the circumstances.

25 The accused continued to live with his mother at Armadale and attended Armadale Senior High School completing Year 12 of his education and the tertiary entrance examination (TEE). He enrolled in a course in teaching at Edith Cowen University, Mount Lawley at the age of 19 and completed the first year of that course satisfactorily. He transferred to a course in geology at Curtin University, Bentley, for two years. He successfully completed the first year of the course and then moved to the Kalgoorlie campus of the University (the WA School of Mines) for the second year, living and studying in Kalgoorlie. He was not successful in that second year and was excluded from the course. He

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returned from Kalgoorlie and lived in his mother's old house at Armadale and then enrolled at the Leederville TAFE. That did not seem to last for very long as the accused found work in Meekatharra and moved up there, coming back on weeks off to his home in Armadale.

26 The accused described how, in about December 1999, he came to the belief that other people could read his mind and how he was hearing voices. He went and saw his own general medical practitioner, Dr Jamieson, who referred him to a psychiatrist, Dr O'Connell. According to the accused, Dr O'Connell made a diagnosis of schizophrenia and prescribed anti-psychotic medication for him. He commenced on this medication and his symptoms ceased. However, he stated that he just stopped taking his medication sometime in mid-2000 and that he suffered no ill-effects for about four or five months but then his symptoms started to come back. He said that he was in fear of his life and that he believed that the FBI, or the Mafia or bikies would torture or kill him. He claimed that he was very frightened and that on one occasion he attended Royal Perth Hospital and wanted to be locked up for his own safety. He says that he threatened a police officer at the hospital with a knife, not with any intention of doing the officer harm, but in order to precipitate an arrest so that he would be locked up and protected. However, he was given medication by the hospital and sent home. At this time the accused was living with friends, who had a young child, at a unit in Hubert Street, East Victoria Park. This was difficult and he moved to the Dane Street unit in order to be alone. He had been living there for about four months before the attack upon his father.

27 In 2001 the accused re-enrolled at Curtin University for a course in applied geology but, as appears from evidence subsequently given by his mother, his attendance was intermittent and he did not take his examinations. The accused says that he harboured fear, that he believed that he was possessed by demons, that he heard voices and that he was in fear of death. He said that he was not taking any medication, was not sleeping and was not eating. He said that he was frightened to stay in his unit at night and would walk about the streets so that he could not be harmed. He would walk to Curtin University and sometimes stay in the computer room where he thought he would be safe or would walk to Kings Park and try and sleep in the bush. He said that he was visiting his mother and father who were telling him to go back to the psychiatrist and that he did so but that the doctor did not find anything wrong with him. He described how his condition gradually got worse and the intensity of the fear factor increased so that he was constantly in fear of his life. He described delusions of being possessed by the Devil, by bikies and by an

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Indian. He says that he walked around inside his unit at night with a knife because of his fear of attack.

28 He stated that by 9 June 2001 he wanted to get out of the unit at Dane Street because he was afraid. He had made arrangements with his step-father to live at Armadale and for his natural father to pick up his gear and assist in the move.

29 In describing the events of 9 June 2001 the accused said that he was a complete mess and was "freaking out". He says that while he was in the car with his father he asked his father to take him to hospital but did not get much of a reaction. He said that he saw a black aura pulsing off his father and thought that his father was the Devil. He claimed to have been thinking along these lines for several months. On getting out of the car he asked his father if he had molested him as a child and was convinced that his father had indeed molested him. His father appeared to be pretty shocked and denied the accusation and seemed to be a bit teary-eyed. He said that he had never molested the accused.

30 On entering the unit at Dane Street the accused was still certain that his father had molested him and was quite upset. He said in evidence that he picked up a large carving knife, which was not bent at the time he picked it up and he thought that his father was the Devil and was going to possess him. He also thought that bikies would come and get him. He said that he used the knife to stab his father in the chest and intended to hurt him. He said that he did not know whether or not he intended to kill his father but believes that had he intended to kill him he would have succeeded in that task. He said that he stabbed his father three or four times in the unit and once in the street outside. He said that he blacked out after stabbing his father inside the unit and dropped the knife on the floor in the lounge. He said that he did not see the knife again after he dropped it and did not put it in the kitchen sink. The accused said that after four or five seconds, when he recovered from the blackout, his father was gone. He picked up another knife from the kitchen because he wanted to harm his father some more. He went outside to the car park and found his father on the pavement near Dane Street looking towards the accused and holding his wounds. The accused says that he repeatedly tried to stab his father outside the unit and may have connected once. He says that he wanted to harm him and was still afraid and was calling out "How could you do it to me.", an allusion to the belief of childhood molestation. He said in evidence that he did not remember talking to the young woman or anyone else near Dane Street, although a different account in this regard was given in the videotape interview to the police.

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He says that he sat down alone and that some people came over to him. That he remained in this position for 14 or 15 seconds and started walking back when he heard a voice say "run", but he walked away down an alleyway and threw the knife away. He walked in the direction of the shopping centre. The police arrived and he showed them where the knife was.

31 The accused was much better nourished and in better condition when giving evidence at this trial in comparison to his appearance on the police video. He said that he was about five or six kilograms under weight at the time of the video because he had not been eating. In cross-examination he told the Crown prosecutor that he thought his father was the Devil and had thought this for about two weeks before his attack. He claimed that he was not really religious but regarded the Devil as the creator of evil. He said that in June 2001 he had been seeing devils and demons and that the lady across the road had been practicing voodoo upon people. He claimed to have been having hallucinations for three or four months before and would see dark spirits or souls before going to sleep. He agreed that he had deliberately stabbed his father five or six times in the chest area but claimed that it was not premeditated. He said that he did not think that he had attempted to kill his father but that voices had told him to kill him. He accepted that, at the time of the trial, he knew how to control his actions but claimed that at the date of the attack he probably did not. He says that he did not know at the time that it was wrong to attack his father. He knew afterwards that it was wrong but not as he was doing it.

32 From this account it can be seen that there are some small inconsistencies in the explanation which the accused gave to the court and the explanation which he gave to the police officers in the videotape. The account given in court contains far more detail about a history of hallucinations, a belief of being possessed and a belief that his father was the Devil. The account given to the police describes the discussion with the young man and the young woman near the laundromat, whereas in court the accused claimed that he could not remember any such discussion. In court the accused said that he dropped the first knife on the floor in the unit and did not place it in the sink, but the knife was found in the sink by the police in the course of their investigations shortly afterwards in circumstances which suggest that only the accused can have placed it there.

33 Having heard the other evidence and observed the accused while giving evidence in this Court, I have come to the conclusion that both

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accounts which he has given are substantially true but that his recollection of details is variable and that there are certain aspects of the events of the afternoon of 9 June that he cannot recall. I do not regard any part of either account of the events given by the accused as knowingly false but, rather, I have concluded that in some respects the accounts are incomplete and unreliable. In particular I have concluded that, after using the first knife, to attack his father the accused placed it in the sink at the unit and selected the second knife to continue the attack a few moments later outside. There is no doubt that he did see, approach and speak to the two young people outside the laundromat and gave his name to them. I am also satisfied, beyond any doubt, that he attacked and stabbed his father with the second knife outside the unit and on the verge of Dane Street more than the once he has said. I accept that there were at least three blows with the knife during this episode as seen by Dajna Fistonic. For reasons which will emerge shortly I also accept that, although he did not mention it to the police during the videotaped interview, the accused had, shortly before the incident, been thinking that his father was a devil and was experiencing other delusions or hallucinations which, although unjustified, caused him great fear.

34 Evidence was given by the mother of the accused, Mrs Maureen Ann Lavell, who provided more information about the accused's family background and education and his behaviour and medical treatment over a period of some years before this incident. I regarded Mrs Lavell as a truthful and reliable witness and I accept her evidence. Accordingly, I find that the accused did not display signs of any alarming behaviour until after he returned from Kalgoorlie to Perth in late 1999, having been terminated in his course at Curtin University – School of Mines. About four weeks after his return his mother thought that he was a bit different and had changed. He lived with her from December 1999 until February 2000 before moving to another house in Walcher Way, Armadale, where he stayed with two male friends from February to October 2000. During this period he visited his mother once or twice a week and kept asking her if he could come and stay, complaining that he was hearing voices in his head and that they were driving him crazy. His mother advised him to see a doctor and both mother and son visited the family general practitioner Dr Jamieson. He referred the accused to a consultant psychiatrist, Dr O'Connell, and Mrs Lavell accompanied her son to a consultation with this specialist. At this consultation, later confirmed as occurring on 13 June 2000, Dr O'Connell made a diagnosis of schizophrenia, prescribed anti-psychotic drugs and explained the diagnosis to Mrs Lavell, including giving a description of likely side

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affects of the medication. One such side affect was possible weight gain. About a month later the accused was gaining weight and was not happy with this. He left the accommodation in Welcher Way and went to stay with another friend in Victoria Park. He used to contact his mother regularly by telephone and told her that he had decided to discontinue the prescribed drugs. He told her sometime later that he had started hearing voices again.

35 In November 2000 Mrs Lavell received a phone message on her answering machine from her son saying that he was at Royal Perth Hospital and requesting her to pick him up. His mother eventually located him at the Victoria Park house and described him as being "doped up to the eyeballs". Mrs Lavell and her daughter took him to his mother's home by car. His mother managed to persuade the accused to visit Dr O'Connell again and his sister took him to an appointment with Dr O'Connell in November 2000 which, as a result of evidence given by Dr Schineanu, I find to have been on 27 November 2000. He was then settled on his anti-psychotic drug regime again and returned to the East Victoria Park flat for some time. Then because of some incident he was evicted. He then obtained other accommodation and, as already described, later moved into the unit at Dane Street.

36 He was in the habit of telephoning his mother at least weekly and Mrs Lavell has described him constantly complaining of hearing voices in his head and telling her that he had again stopped taking his medication. He made complaints to her that an Asian man was "cracking on to him" and that lecturers at the University were "eyeballing him" all the time, and that other students were trying to kill him. He was in the habit of visiting her at her home late in the evenings between 11.00pm and 1.00am. It was obvious to her that he had not been eating and she would feed him up on these occasions. He kept asking her what he should do and she constantly urged him to see Dr O'Connell and to resume taking his medication.

37 According to Mrs Lavell the accused's behaviour deteriorated after he moved to the unit at Dane Street. He was complaining to her that there was evil in the flat, that there was an Indian lady doing voodoo on him and that he had seen oil and blood in the stove and running down the walls of the unit. She explained that he was frightened of being attacked and that it was necessary for her to lock him in a bedroom at her home, and for nails to be inserted in the windows so that they could not be opened in order to make him feel safe and allow him to sleep. He spoke to his mother about his father and said that like everyone else, the father was plotting to kill him.

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38 There was an episode at the mother's home some three or four days before 9 June 2001. The accused had come to sleep at his mother's home the night before because he claimed that he could not find his keys. His younger brother, aged 18 years, came home and he accused his brother of stealing his keys and playing mind games with him. He became quite agitated and pushed his brother about. His mother stepped between them and the accused calmed down. He had never shown any anger or violence towards his brother or other members of the family before.

39 His mother rang the Psychiatric Emergency Team on three occasions with a request for them to take and treat the accused but they were not authorised to respond. She telephoned the police and asked that her son be arrested and assessed but the police were unable to respond. He told his mother, while he was living at Dane Street, that he was "possessed by the Devil" and did not trust her, believing that even she was out to kill him. There were many other descriptions of irrational and disordered fears expressed by the accused to his mother during the early part of 2001 and I accept Mrs Lavell's evidence as a truthful account of what she was told by her son.

40 Before undertaking the examination of the significance of the evidence it is necessary to summarise the testimony given by two psychiatrists called for the accused, Dr David J Lord FRANZ CP. and Dr M Schineanu FRANZ CP. Dr Lord, who is a psychiatrist in private practice also having responsibilities for the Southwest Mental Health Service, examined the accused at the request of his solicitor in August 2001. Dr Schineanu, a consultant psychiatrist to the Graylands Hospital, was responsible for the assessment and treatment of the accused following his compulsory admission on 10 June 2001 and, with another psychiatrist at that Hospital, still oversees his care. Both psychiatrists prepared written reports of their examinations of the accused and they are, respectively, Exhibits 8 and 9. I accept as accurate the details recounted in both reports and the history and diagnosis in each report.

41 Both doctors made a diagnosis of paranoid psychotic disorder, namely schizophrenia, and have identified this as a well established mental illness. For the accused it had been a long-standing mental illness by mid-2001 and it is now a lifelong disorder. Anti-psychotic medication is necessary for its control and the suppression of symptoms.

42 Dr Schineanu elicited a history of schizophrenia in the accused's maternal grandmother which is significant in that there is a genetic association with this disease. Both doctors accepted the diagnosis of

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schizophrenia which had been made by Dr O'Connell in June 2001 and regarded the accused as a typical example of a young man suffering from paranoid schizophrenia. Dr Lord explained how, if a diagnosis of schizophrenia was made on the basis of voices and hallucinations and these symptoms were subsequently controlled by anti-psychotic medication, the reappearance of symptoms after the patient ceased taking the medication, is confirmatory of the diagnosis. Dr Lord regarded the attack by the accused upon his father as occurring when the accused was floridly psychotic and was actively hallucinating. He described the attack as occurring during an acute psychotic episode.

43 Dr Lord stated that the accused was suffering from this mental illness in June 2001, but that in his opinion he understood what he was doing because there were signs that the attack upon the father was organised, planned (if only momentarily before) and was not random. However Dr Lord was of the opinion that the accused at the time was unable to control his actions and was behaving under the influence of the psychotic hallucinations commanding him to kill. In Dr Lord's opinion it was uncertain whether the accused had the capacity to know that he ought not attack his father in this way but he expressed a tentative opinion that the accused probably did know this but could not withstand the auditory commands coming from his hallucinations. Dr Lord also explained that the deliberate behaviour, such as selecting one knife and then another, and pursuing his father outside the unit, is consistent with florid psychotic behaviour in that it is prompted by the hallucinatory behaviour.

44 The opinion of Dr Schineanu is essentially to the same effect. He had prepared a series of reports on the accused's condition and progress having seen the accused first on 11 June 2001 the day after his admission. It was Dr Schineanu who had assembled information about the accused's prior medical treatment. This was that the accused had first been seen by Dr O'Connell on 13 June 2000 when a diagnosis of schizophrenia was made and the anti-psychotic medication first prescribed. He was seen again by Dr O'Connell on 20 June, 4 and 26 July, 25 August, 8 and 22 September 2001. The accused was also seen at Royal Perth Hospital on 26 November 2000 and by Dr O'Connell the next day, 27 November. He was seen again by Dr O'Connell on 1 December and 12 December 2000 and last on 23 April 2001. There was a history of substance abuse but a drug screen at Graylands Hospital after admission was not positive for any illicit substances such as opiates, amphetamines (Ecstasy), benzodiazepines, marijuana or alcohol. Dr Schineanu confirmed that the diagnosis was of paranoid schizophrenia – a severe mental illness.

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45 In the opinion of Dr Schineanu, at the time of the attack on his father, the accused understood what he was doing in a simplistic way, in the sense that he knew he was attacking and stabbing his father. However, Dr Schineanu is of the opinion that the accused did not have an ability to control his actions and said that this ability to control was totally impaired at the time. Dr Schineanu observed that the accused's behaviour showed some planning and rationality but was of the opinion that the accused's sense of reality was distorted by delusions and hallucinations and that his affective (emotional, and volitional) states were all affected. In the opinion of Dr Schineanu the accused did not, at the time, have a capacity to control his actions. Dr Schineanu also expressed the opinion that it was uncertain whether the accused had the capacity to know that he ought not to have attacked his father, but he expressed the further view that if the accused did know this he had no clear ability to think properly and was not able to think in abstract terms. Dr Schineanu stated that some of the main symptoms of schizophrenia are ambivalence and suggestibility. Ambivalence in this setting means that the patient is unable to make choices, and the suggestibility indicates a readiness to act upon some form of prompting. In cross-examination Dr Schineanu observed that it was his opinion that the accused acted as he did because of his psychotic illness and would not have done so otherwise.

46 No further evidence was adduced. By his counsel, the accused relies upon the defence of insanity under s 27 of the Code. The facts which I have already found clearly show that the accused attacked his father and stabbed him repeatedly inside and outside the unit at Dane Street in a manner which caused his father grievous bodily harm and which, but for the intensive medical treatment administered to the father would certainly have caused death. The accused has also admitted that he acted this way because voices and other hallucinatory experiences commanded him to kill his father, although in his interview with the police on 9 June 2001, he doubted whether he had intended to kill his father, and in evidence to this Court said that he does not believe that he intended to kill.

47 It is therefore necessary to consider what verdict I should return in the light of these facts and according to law. Counsel for the prosecution has submitted that I am bound to consider and determine the defence of insanity before addressing the issue of whether or not the Crown has proved that, at the time of the attack, the accused intended to kill his father or, alternatively, intended to cause him grievous bodily harm. This submission relies upon the decision of the Court of Criminal Appeal in Ward v The Queen (2000) 23 WAR 254. With respect, I do not consider that the decision in Ward goes so far, or that the observations of three of

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the Judges, Kennedy, Wallwork and Scott JJ, should be taken as representing the ratio decidendi of that decision. Wheeler J (with whom Pidgeon J agreed) expressly concluded that there was no principle of law which required a jury to be told, in a prosecution for wilful murder, that they must determine the issue of insanity before proceeding to decide any issue of specific intent. Wheeler J considered that so long as a clear direction is given in respect of each applicable issue, the onus and standard of proof is made clear in relation to each issue, and it is made clear to the jury that it is only when they have rejected any possibility of unqualified acquittal that they may turn to issues of insanity, neither any principle of law nor any requirement of fairness to the accused dictates that issues arising in a trial be considered in any particular order. Both Pidgeon and Wheeler JJ concurred in the unanimous decision of the court that, in Ward, the appeal against conviction should be dismissed and, accordingly, the ratio decidendi is to be found from an examination of the judgments of all five members of the court, including the judgments of Pidgeon and Wheeler JJ who took a different view to the other three Judges on this particular sub-issue. The difficult question of ascertaining the ratio decidendi of a decision of a court of several members, all of whom have agreed in the result but who have given different, and sometimes inconsistent, reasons for doing so, has been fully analysed by the High Court in Jones v Bartlett (2000) HCA 56; (2000) 75 ALJR 1. A review of the authorities and the learned writings on this subject is to be found in the judgments of Gummow and Hayne JJ at [199] – [207] and of Kirby J at [228] – [237]. Upon the authority and the reasons explained in Jones v Bartlett, I consider that I am free to adopt, as an approach to any question of the order which possible verdicts should be considered, the observations of Wheeler J (with whom Pidgeon J agreed) and which, with all respect, appear to me to be preferable in principle. I note also that the view of Wheeler J appears to have been preferred by Malcolm CJ and Murray and Owen JJ in Stanton v R (2001) 24 WAR 233.

48 Perhaps the more controversial issue remaining from Ward v R (supra) concerns the question of what consideration of issues specific intent still needs to be given, once a finding of insanity has been made, in order to return a special verdict as required by s 653 of the Code. I accept, as Scott J has explained in Ward (supra), that it may sometimes be very difficult, perhaps even impossible, to reach findings about specific intent where the tribunal of fact is satisfied, on the balance of probabilities, that the accused was insane at the relevant time. Much will depend on the nature of the mental disease, illness or infirmity which produces the condition of insanity and the extent to which the reason of

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the accused is deranged by that process. These difficulties do not arise in the present case and it is unnecessary and undesirable for me to consider them further, but I must say that, with respect to those who take a different view, there appears to me to be a statutory imperative requiring the tribunal of fact to consider and return a special verdict under s 653 identifying the offence of which, by reason of the finding of insanity, the accused has been acquitted.

49 In this case I find that the accused had been suffering from paranoid schizophrenia, a serious mental illness, since June 2001 at the latest and that this caused him, when untreated, to experience hallucinations, delusions, irrational fears that his life was threatened and to misinterpret the actions and intentions of other persons. I also find that from about April 2001 the accused's mental disease was in an uncontrolled state because of his failure to take anti-psychotic medication. From then on he was experiencing, at frequent intervals, severe hallucinations, delusions and was frequently, but irrationally, in great fear of his life.

50 I also conclude that, on the afternoon of 9 June 2001 the accused experienced a florid psychotic episode which caused him to form the unsubstantiated and irrational belief that his father had molested him as a young child, that his father was a figure of evil and that he should kill his father. I also find that, under the influence of this mental illness the accused spontaneously decided that he should attack his father with a knife and kill him. He planned and carried out this attack, more or less instantaneously but with a degree of planning and persistence which satisfies me, beyond any doubt, that it was intentional, although the intention proceeded from a disordered mind. He carried out his attack with the use of considerable force and with two weapons pursuing his father from the interior of the unit to the road verge outside. His words "How could you do it – to your son" overheard by Mr Bisschops show that he was acting in the belief that his father had molested him. Although that belief was unsubstantiated, irrational and a product of his deranged mind, it revealed his purpose. The accused himself explained that he heard voices which told him to kill his father and that he acted on them. In these circumstances I consider that, at the time he attacked his father, the accused had the intention of killing him.

51 On the other hand I am also satisfied that the accused has established that at the time of the attack upon his father, and while he was inflicting the stab wounds, the accused was in such a state of mental impairment as to deprive him of the capacity to control his actions and that, therefore, he is not criminally responsible for his conduct by reason of his insanity.

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52 I find that the accused, Shane Roger Lavell, is not guilty on account of his unsoundness of mind at the time of his attack upon his father. In so acquitting the accused I also return a special verdict pursuant to s 653(1)(b) of the Code that it is the offence of attempted murder of which he is so acquitted.

53 I will hear counsel as to the formal judgment to be entered as a result of these verdicts and upon what orders should be made if judgment is entered.