Stefanski v The State of Western Australia
[2022] WASCA 5
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: STEFANSKI -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 5
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 6 AUGUST 2021
DELIVERED : 31 JANUARY 2022
FILE NO/S: CACR 80 of 2020
BETWEEN: JASON RAINER STEFANSKI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: HALL J
File Number : INS 72 of 2015
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted on his pleas of guilty of two counts of murder - Whether a miscarriage of justice occurred because, upon the admitted facts, the appellant could not in law have been guilty of murder - Whether the appellant was not guilty of murder on account of unsoundness of mind - When the appellant killed the deceased he had a mental illness (namely, paranoid schizophrenia or psychotic disorder) - Appellant's mental illness most likely triggered by his use of illicit substances, particularly cannabis - Appellant's ingestion of cannabis in the days and weeks before the killings could have uncovered the underlying mental illness - Appellant's mental illness precipitated and exacerbated by his drug use - Appellant's psychotic symptoms at the time of the killings would not have been as severe or intense as they were if the appellant had not been using cannabis - Proper construction of s 27, s 28(1) and s 28(2) of the Criminal Code (WA) - Whether a miscarriage of justice occurred as a result of the primary judge acting on the appellant's pleas of guilty
Legislation:
Criminal Appeals Act 2004 (WA), s 39(1)
Criminal Code (WA), s 1(1), s 23A, s 26, s 27, s 28
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 21, s 24
Result:
Application for an extension of time to appeal dismissed
Appellant's application for leave to adduce additional evidence in the appeal granted
Leave to appeal granted
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | Mr S B Watters & Ms A M Taylor |
| Respondent | : | Ms A L Forrester SC |
Solicitors:
| Appellant | : | Kate King Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Armanasco v The King (1951) 52 WALR 78
Battle v The Queen (1993) 8 WAR 449
Bowden v The State of Western Australia [2013] WASCA 118; (2013) 45 WAR 168
Brennan v The King [1936] HCA 24; (1936) 55 CLR 253
Cameron v The Queen (1990) 2 WAR 1
Chowdhury v Kenny [No 2] [2012] WASCA 35
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Dearnley v The King [1947] St R Qd 51
Herlihy v R [1956] St R Qd 18
Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
McNaghten's Case (1843) 10 Cl & Fin 200; 8 ER 718
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Mikulic v The State of Western Australia [2011] WASCA 14
Network Ten v TNC Channel Nine [2004] HCA 14; (2004) 218 CLR 273
Parker v The King (1915) 17 WALR 96
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Question of Law Reserved (No 1 of 2021) [2021] SASCA 148
R v Arnold; Ex parte Attorney‑General (Qld) [2002] QCA 357; (2002) 134 A Crim R 151
R v Clough (No 2) [2010] QCA 120; [2011] 2 Qd R 222
R v Corbett [1903] St R Qd 246
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Foy [1960] Qd R 225
R v Hill [1979] VR 311
R v Kusu [1981] Qd R 136
R v Miers [1985] 2 Qd R 138
R v Mursic [1980] Qd R 482
R v O'Regan [1961] Qd R 78
R v Smith [1949] St R Qd 126
Re Bromage [1991] 1 Qd R 1
Schugman v Menz [1970] SASR 381
Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
The Queen v A2 [2019] HCA 35; (2019) 269 CLR 507
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Knock [2020] WASC 246
Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56
Vella v The State of Western Australia [2006] WASCA 129
TABLE OF CONTENTS
BUSS P
The primary judge's findings of fact in his sentencing remarks and the expert psychiatric evidence before his Honour
The appellant's application in an appeal to adduce additional evidence
The relevant provisions of the Code
The relevant provisions of the Criminal Code (Qld)
Relevant differences between the Code and the Criminal Code (Qld)
Two issues in relation to the proper construction of s 28 of the Code
The decision in Clough
The decision in The State of Western Australia v Herbert
The decision in The State of Western Australia v Knock
Counsel for the appellant's submissions
Counsel for the State's submissions
The merits of the appeal
Conclusion
MAZZA JA
Introduction
Why the ground of appeal cannot succeed
Construction of s 28(1) and s 28(2) of the Code
BEECH JA
Introduction
Statutory provisions
The proper construction of s 28(1)
The proper construction of s 28(2)
Why there is no miscarriage of justice
Conclusion
BUSS P:
This is an appeal against conviction.
On 27 November 2015, the appellant was convicted, on his pleas of guilty before Hall J, of two counts in an indictment.
Count 1 alleged that on 6 September 2014, at Woodvale, the appellant murdered William Peter Butler, contrary to s 279 of the Criminal Code (WA) (the Code).
Count 2 alleged that on 8 September 2014, at Woodvale and elsewhere, the appellant murdered Rainer Franz Josef Stefanski, contrary to s 279 of the Code.
On 2 December 2015, the primary judge sentenced the appellant on each count to life imprisonment with a minimum non-parole period of 23 years. His Honour ordered that the sentences be backdated to 6 September 2014 to take account of time the appellant had spent in custody for the offending.
The appellant requires an extension of time within which to appeal. The last date for appealing against conviction was 23 December 2015. The appellant did not file his appeal notice until 11 June 2020. The appellant's application for an extension of time is supported by his affidavit sworn 10 June 2020 and by an affidavit of his lawyer, Ashlee Marie Taylor, affirmed 10 November 2020.
The appellant relies upon one ground of appeal which reads:
A miscarriage of justice was occasioned because the appellant's pleas were entered in circumstances in which the integrity of the pleas of guilty [was] adversely affected by the appellant's erroneous understanding about whether he had an arguable defence to the charges of murder.
I would grant leave to appeal. However, the ground has not been made out. In the circumstances, it would be pointless to grant an extension of time. The appeal must be dismissed.
The primary judge's findings of fact in his sentencing remarks and the expert psychiatric evidence before his Honour
The primary judge's findings of fact in his sentencing remarks and the expert psychiatric evidence before his Honour were, relevantly, as follows.
On the evening of 5 September 2014, the appellant went to the airport to collect his friend Emma Tapsell. Ms Tapsell stayed with the appellant that night. During the night the appellant smoked cannabis almost continuously. According to Ms Tapsell, at about 1.00 am she became concerned about the appellant because his eyes were out of focus and his head was rolling around. Also, the appellant appeared to be frustrated. He hit the wall a number of times. He mumbled and made incoherent noises. Ms Tapsell took the smoking device from the appellant. He then seemed 'to come around'.
On the morning of 6 September 2014, the appellant woke early and went to work. While he was at work that morning he vomited. The appellant claimed that he had eaten 'something bad'. Later, the appellant was with a group of work colleagues who were talking. Without warning or provocation, the appellant punched one of his colleagues very hard to the face. Afterwards, the appellant was heard to say that voices had told him to do it. Another work colleague saw the appellant hitting himself in the head and striking his head on the steering wheel of his car.
At about 11.00 am on 6 September 2014, the appellant left work and returned home. He told Ms Tapsell that he had left work because he was ill. The appellant went to his room and smoked some cannabis. According to Ms Tapsell, the appellant reloaded the smoking implement a couple of times. She said that he appeared to 'zone out'. At about 12.15 pm, Ms Tapsell left the appellant's home with another friend. As she left, Ms Tapsell noticed that the appellant's eyes were not focussed and that he was leaning over the bonnet of a car in the driveway.
At about 12.30 pm to 1.00 pm, the appellant's mother saw the appellant come to the back of her house where his father was doing some woodwork. The appellant began to shake. It appeared to the appellant's mother that the appellant was angry. She endeavoured to calm him. The appellant said words to the effect, '[t]hey told me to do it. I don't want to do it and I know they are going to put me away'. The appellant's mother did not know what the appellant was talking about, but she endeavoured to console him.
The appellant's father took the appellant to a seat and sat with him. The appellant's mother went into the house and telephoned a medical help line. The appellant and his father then went inside and the appellant's mother handed the appellant the telephone so that he could speak to the person whom she had contacted. The appellant's mother attempted to telephone other people, including her medical practitioner and the appellant's brother and cousin. At some stage, the appellant and his father went outside again.
Later, when the appellant's mother went to go outside, the appellant met her at the door and said, '[d]on't go outside. Don't go outside. You don't want to see it'. The appellant's mother asked him what he had done, pushed passed him and ran to the back patio area. There she saw the appellant's father lying on the paving. His face was covered with blood and he had been beaten badly. She endeavoured to find a pulse and called for help. The appellant tried to pull his mother away. He stomped on the ground near his father's face. On two occasions the appellant used one hand to reach down and choke his father by the throat. The appellant's mother tried to stop the appellant, but he 'kept throwing her off'.
Eventually, the appellant's mother ran from the house. As she ran along the driveway, she saw her neighbours, Mr and Mrs Butler, and asked them to call the 000 emergency number. Mr and Mrs Butler had heard the appellant's mother's screams. Mrs Butler returned to her house and called the 000 emergency number. While making the call she went outside to ask Mr Butler the number of the adjoining house. At that time, Mr Butler was at the top of the driveway to the appellant's parents' home. Mrs Butler went inside her house again and completed the telephone call. She then went outside again. At that time, Mr Butler was still at the top of the driveway to the appellant's parents' home. He told Mrs Butler to telephone for an ambulance.
In the meantime, the appellant's mother had gone to the house of another neighbour, Derrick Tumath. Mr Tumath told the appellant's mother to enter his house. Mr Tumath then went to the appellant's parents' home. At the back patio area Mr Tumath saw the appellant, who was shirtless and on his knees. The appellant's hands were on his head and he was rocking back and forth. Mr Tumath asked the appellant what had happened. The appellant replied, 'I've done something bad'. Mr Tumath then saw a body lying face up on the lawn. He realised that it was the appellant's father. The appellant's father had been very badly beaten and appeared to be dead. Mr Tumath could not find a pulse.
At about this time, Mr Butler walked to the backyard of the appellant's parents' home. Mr Tumath asked him if he knew how to perform cardiopulmonary resuscitation. Mr Butler said he did not. Mr Tumath told Mr Butler to ensure that an ambulance had been called. Mr Butler then moved to the front of the appellant's parents' home. When Mr Butler walked towards the front of their home, the appellant followed him.
The appellant attacked Mr Butler in the driveway of the appellant's parents' home. The attack occurred quickly and with great force. Mrs Tumath looked out of the window of her house and saw the appellant on top of another man, who must have been Mr Butler. The appellant was sitting on Mr Butler and punching him repeatedly with two closed fists.
Mrs Butler had returned to her house to telephone for an ambulance. She then walked outside and saw the appellant standing in her driveway. Mrs Butler walked past the appellant. The appellant appeared upset. He did not say anything to her. Mrs Butler then went inside her house again. She noticed that the appellant had followed her and had entered her garage. The appellant ran towards her screen door but Mrs Butler managed to lock it. The appellant then went into Mrs Butler's backyard. He banged on a gate before leaving.
Mrs Tumath called the police. She then went outside. While she was outside, the appellant's brother arrived. The appellant's brother saw Mr Butler lying on the driveway of the appellant's parents' home. Mr Butler had been badly beaten. The appellant's brother attempted to perform cardiopulmonary resuscitation on Mr Butler until the emergency services arrived.
After a while, Mrs Butler left her house to look for her husband. She saw him lying on the driveway with ambulance officers attending to him. Mr Butler had blood over his face. Mrs Butler knew that the person was her husband because of the clothes he was wearing. Mr Butler died at the scene. He had multiple severe injuries to his head and face. These included a large gaping compound laceration on the lower forehead, multiple fractures, bruising and smaller lacerations, a displaced right eye with a ruptured globe and injuries consistent with being held by the throat, including bruises and fractures in the cartilage of the neck. Mr Butler had aspirated large quantities of blood. His cause of death was head and facial injuries.
The appellant's father was treated at the scene by police and paramedics. He was then transported to hospital and placed on artificial life support. On 8 September 2014, the appellant's family, acting on medical advice, decided that the artificial life support should be removed. The appellant's father died on that day. The cause of his death was complications from head, neck and facial injuries.
The primary judge noted the appellant's admissions that, at the time of each killing, the appellant intended to cause the death of the deceased. His Honour said that this admission was consistent with the nature of the injuries suffered by each of the deceased. Those injuries must have been the result of multiple blows involving significant force to the face and the neck of each of them.
His Honour observed that the appellant had not used a weapon. He had used his hands and fists. His Honour said that the appellant was a young and strong man who had undertaken some martial arts training. The victims were elderly. The appellant's father was aged 69 and Mr Butler was aged 68. The appellant's attack on each of them was made without warning. The appellant suffered no significant injuries. After committing the offences, the appellant fled. He climbed fences and jumped onto the rooves of houses in making his escape.
The appellant was pursued by police and apprehended. He was physically aggressive towards the police officers. The appellant was taken to Royal Perth Hospital and examined. The examination found that the appellant was orientated as to place and time and was conversing normally. He was given a sedative and released to police custody. A blood sample was taken from the appellant at 10.20 pm that day. Analysis of the sample was consistent with the appellant being a chronic heavy user of cannabis.
In the early hours of the following morning, the appellant was escorted from police premises so that he could smoke a cigarette. The appellant began to shake and to rock backwards and forwards. He then began to moan and shout. He struck his head on a railing. The appellant violently resisted police officers who attempted to restrain him. The appellant was taken to a hospital and, after being reviewed, was transferred to Graylands Psychiatric Hospital.
On 6 and 8 September 2014, the appellant was given the opportunity of participating in an electronically recorded interview with police. He declined and exercised his right to silence.
The appellant was born on 26 February 1991. He was aged 23 at the time of the offending and was 24 when sentenced.
The appellant was close to his mother while he was growing up, but had a strained relationship with his father. The appellant has a brother, Mark, who is 7 years older. The appellant attended school to year 12. He formed some close relationships that continued throughout the following years. The appellant began studying information technology at TAFE, but ceased those studies after one semester.
The appellant then worked in a supermarket before a period of unemployment. He then spent 2 years 6 months as a surveyor's assistant before another period of unemployment. At the time of the offending, the appellant was employed as a labourer on a building site.
When he was aged 16, the appellant began a relationship with a girl who subsequently became his partner. When the appellant was aged 19 they had a daughter. The appellant's relationship with his partner was strained at times because of the appellant's use of drugs and alcohol. The relationship ended when the appellant was aged 20. Several weeks before his offending, the appellant was prevented from having contact with his daughter. He found this upsetting.
The appellant had no prior criminal record and no recorded history of violence.
The appellant began using cannabis and ecstasy at the age of about 16. He used ecstasy heavily until the age of 18. His use of that drug then diminished. However, the appellant's use of cannabis became heavier and more regular from the age of 18. Often he would smoke cannabis alone. At the age of 19 the appellant experimented with methylamphetamine, cocaine and LSD. He became a very heavy user of methylamphetamine at the age of about 20. From the age of about 22 the appellant reduced his use of methylamphetamine, but his consumption of alcohol escalated significantly. He would drink to excess on most weekends and on some weekdays. The appellant behaved in a childlike and aggressive manner when intoxicated. His parents repeatedly expressed to the appellant their concerns about him and his use of drugs and alcohol.
During the months immediately preceding the offending, the appellant used alcohol and cannabis to excess. He smoked four or five cones of cannabis each day. This excessive use of cannabis had a significant impact on the appellant's mental health.
Before the offending, the appellant had never been diagnosed with or treated for any mental illness. However, other people observed aspects of the appellant's behaviour which indicated that he was becoming unwell. He mumbled and spoke to himself. He hit himself on the head and struck his head against objects.
During the three months before the offending, the appellant began to have delusional beliefs that his work colleagues were communicating with him in a secret language. The appellant formed the belief that he was a member of a gang and that he could communicate with others by means of his thoughts. About one week before the offending, the appellant began to believe that someone was going to 'get him'.
After the offending, the appellant described his beliefs in detail to Dr Mark Hall, a consultant forensic psychiatrist, and to Dr Adam Brett, a consultant psychiatrist.
The appellant told Dr Hall and Dr Brett that on the day of the offending he received 'a visualisation' in his head from another person. The appellant believed that people were coming to kill him. The appellant told Dr Hall and Dr Brett that he went to the backyard of his parents' home to ask his father for help. The appellant claimed that he believed the voices in his head had told him that he had to kill his father. The appellant said he was aware that neighbours had come to help his father. He recalled seeing Mr Butler on the driveway. The appellant referred to hitting Mr Butler and to his arms moving, but said that many of the events in relation to the offending were 'a blank'.
Initially, Dr Hall concluded that at the time of the offending the appellant was suffering from a psychiatric disorder not otherwise specified, with a differential diagnosis of schizophrenia or cannabis induced psychotic disorder. However, after treating the appellant over several months, Dr Hall re-assessed his diagnosis and formed the opinion that the appellant suffers from paranoid schizophrenia. Dr Hall was of the view that the appellant was floridly psychotic at the time of the offending and that this episode marked the onset of paranoid schizophrenia. The florid psychosis was characterised by systematised and bizarre delusions of thought interference and bodily control, as well as auditory hallucinations. The psychosis had themes of grandiosity, religion and persecution.
Dr Hall noted that the appellant's psychosis arose against a background of cannabis dependence as well as a number of years of gradual decline in occupational and social functioning. There were indications that the appellant had a strong family history of psychotic illness. Dr Hall was of the view that the appellant's mental condition was a mental illness in that it was due to an underlying pathological infirmity of mind, albeit one that may have been induced by cannabis use, as distinct from simply a state of intoxication.
In his most recent report dated 1 December 2015, Dr Hall stated that the time of the offending marked the onset of paranoid schizophrenia and that the onset of paranoid schizophrenia was most likely triggered by the appellant's use of illicit substances, particularly cannabis, and that the appellant was vulnerable to the development of schizophrenia due to his family history of psychotic illness. Dr Hall said that the appellant's voluntary ingestion of cannabis and alcohol in the hours preceding the offending would not have resulted in the intensity of psychosis experienced by the appellant if the appellant did not suffer from an underlying mental illness or a vulnerability to developing a mental illness. The corollary to that, however, was that the appellant's psychotic symptoms would not have been as severe or intense as they were if the appellant had not been using cannabis.
Dr Hall also stated in his report dated 1 December 2015 that the appellant would have had no way of knowing that the ingestion of substances would aggravate a mental illness because the appellant did not know that he had a mental illness. Accordingly, although the appellant's ingestion of alcohol and cannabis in the hours before the offending was voluntary, the delusional beliefs that underpinned the offences were the product of his paranoid schizophrenia, which was at that stage undiagnosed and untreated.
Dr Brett expressed similar conclusions to those of Dr Hall.
In a report dated 19 June 2015, Dr Brett stated that at the time of the offending the appellant was floridly psychotic. Dr Brett said that the appellant's mental state appeared to have been deteriorating in the weeks before the offending as a result of stress arising from allegations made by the appellant's former partner and the appellant's increasing cannabis use. Dr Brett was also of the view that possible differential diagnoses were schizophrenia and drug induced psychosis. He said that the appellant was using significant amounts of cannabis in the days and weeks before the offending and that this could have uncovered an underlying mental disorder, such as schizophrenia, or could have by itself induced a psychotic disorder. Dr Brett did not believe that the appellant would have become so floridly psychotic if he had not used excessive amounts of cannabis. Dr Brett was of the view that the excessive use of cannabis precipitated the psychotic episode.
Dr Hall and Dr Brett were of the opinion that at the material time the appellant had a mental impairment which deprived him of the capacity to control his actions and the capacity to understand that he ought not do the acts of the offending. The appellant's mental impairment did not, however, deprive him of the capacity to understand what he was doing.
In a report dated 17 September 2014, Dr Gosia Wojnarowska, the Clinical Director of the Inpatient Unit, State Forensic Mental Health Services at the Frankland Centre, said that the appellant was fit to plead and fit to stand trial.
The primary judge noted that the appellant had decided not to attempt to rely upon the defence of insanity under s 27(1) of the Code because the appellant accepted that, pursuant to s 28(2) of the Code, the defence of insanity was excluded because the appellant voluntarily and intentionally caused himself to become intoxicated or stupefied by drugs. His Honour also noted that, by all accounts, any mental illness from which the appellant suffers was in abeyance and, some time ago, the appellant had been found fit to plead. His Honour then observed:
Last Friday, prior to entering pleas of guilty to these charges, I confirmed with your counsel that you understood the nature and consequences of your pleas, and that you were aware of the contents of the reports of Dr Hall and Dr Brett. The fact that you have not raised the defence of insanity does not mean that you were not suffering a mental illness at the time, which fell short of depriving you of the relevant capacities. Mental illness falling short of insanity can be relevant to penalty.
The primary judge said that a psychiatric condition that is a result of voluntary drug taking is, in general, not a mitigating factor. However, in the present case, the consensus of opinion of Dr Hall and Dr Brett was that the mental illness from which the appellant was suffering at the time of the offending was not solely caused by the use of cannabis. The appellant had an underlying mental illness that was precipitated and exacerbated by his drug use. His Honour accepted that the appellant was unaware of his underlying mental illness and the effect that the use of cannabis could have upon the illness.
The appellant's application in an appeal to adduce additional evidence
By an application in an appeal dated 11 November 2020, the appellant applied for leave to adduce additional evidence in the appeal. The additional evidence comprised an affidavit of Michael Anthony Perrella sworn 21 October 2020.
Mr Perrella is a legal practitioner. The appellant retained Mr Perrella as his solicitor when the appellant was charged with the two counts of murder. Mr Perrella appeared as defence counsel at the appellant's sentencing hearing on 2 December 2015.
In his affidavit, Mr Perrella deposes, relevantly, as follows:
(a)Mr Perrella first met the appellant on or about 11 September 2014 at the Frankland Centre [6].
(b)The central question for Mr Perrella was whether the appellant could avail himself of the defence of insanity under s 27(1) of the Code [8].
(c)Prior to the appellant entering any plea to the charges, Mr Perrella arranged for the appellant to be assessed by Dr Hall. In his report dated 12 November 2014, Dr Hall expressed the opinion that the appellant was suffering a mental impairment at the time of the offending. Dr Hall's principal diagnosis was 'psychotic disorder not otherwise specified'. There was a differential diagnosis of 'schizophrenia' or 'cannabis induced psychotic disorder'. Dr Hall was of the view that the appellant's mental impairment deprived him of the capacity to control his actions and the capacity to understand that he ought not to do the relevant act in each case [9].
(d)Mr Perrella advised the appellant that Dr Hall's report supported an insanity defence. However, based on Mr Perrella's interpretation of s 28(2) of the Code, Mr Perrella 'had doubts about whether the appellant was able to avail himself of the insanity defence'. Mr Perrella advised the appellant that if, when he did the relevant acts, the appellant was intoxicated and his intoxication was intentionally caused, the insanity defence could not succeed irrespective of whether the appellant's psychosis deprived him of one of the capacities specified in s 27(1) of the Code [10].
(e)Mr Perrella made enquiries to find a suitably qualified expert to provide an interpretation of the appellant's toxicology results to determine if it was possible to ascertain whether the appellant was, in fact, intoxicated when he did the relevant acts. It was apparent to Mr Perrella, from his preliminary enquiries, that it would take several months for a suitably qualified expert to provide a report [11].
(f)Mr Perrella advised the appellant that, in the interim, the appellant should enter pleas of not guilty on account of unsoundness of mind. Mr Perrella believed that those pleas were entered on 11 March 2015 [11].
(g)Mr Perrella also advised the appellant to instruct him to apply for a trial by judge alone so that reasons for the verdicts would be given [12].
(h)The State arranged for the appellant to be assessed by Dr Brett. In his report dated 19 June 2015, Dr Brett said that the appellant had a mental impairment. Although Dr Brett was unable to provide a definitive diagnosis, he said that the appellant was suffering a 'first episode psychosis' and provided a differential diagnosis as between 'drug induced psychosis' and 'schizophrenia'. Dr Brett concluded that the appellant's significant cannabis use prior to the commission of the offences caused the appellant to become 'floridly psychotic'. Dr Brett concurred with Dr Hall that the appellant's mental impairment deprived him of the capacity to control his actions and the capacity to understand that he ought not to do the act in each case [13].
(i)Mr Perrella advised the appellant that Dr Brett's report supported a defence of insanity, but also supported a finding that the appellant was intoxicated when he did the relevant acts [14].
(j)Mr Perrella commissioned a report from Professor Jonathon Arnold, a consultant pharmacologist, to address the appellant's toxicology results. At about the same time, the State obtained a toxicology report dated 27 September 2015 from Dr Jonathon Grasko, a consultant chemical pathologist and toxicologist [15].
(k)Based on the reports of Professor Arnold and Dr Grasko, Mr Perrella formed the view that the State would have little difficulty in proving beyond reasonable doubt that the appellant was intoxicated when he did the relevant acts [16].
(l)Mr Perrella also formed the view, based on all of the evidence, that the appellant could not establish, on the balance of probabilities, that the appellant did not intend to become intoxicated [17].
(m)Mr Perrella advised the appellant that the decision of the Court of Appeal of Queensland in R v Clough (No 2)[1] was authority for the proposition that a person who has intentionally used a substance to become intoxicated cannot escape criminal responsibility pursuant to the defence of insanity if the intoxication triggered a psychotic state, even if the person was not intoxicated at the time of doing the acts which caused the death of the deceased. Mr Perrella understood that, on the authority of Clough, s 28(2) of the Code precluded the appellant from relying upon the defence of insanity [18], [20].
[1] R v Clough(No 2) [2010] QCA 120; [2011] 2 Qd R 222.
(n)Mr Perrella's understanding was that Dr Hall and Dr Brett were agreed that, irrespective of his underlying mental impairment, it was the appellant's consumption of cannabis which triggered the psychotic state under which the appellant was operating at the time he did the relevant acts [21].
(o)Based on Mr Perrella's understanding of the interaction between s 27(1) and s 28(2) of the Code, Mr Perrella advised the appellant that he would be convicted at trial [22].
(p)Mr Perrella advised the appellant that if he pleaded not guilty on account of unsoundness of mind and obtained an order for a trial by judge alone, the appellant could appeal against any verdicts of guilty and obtain a ruling from the Court of Appeal on the proper construction of s 28(2) read with s 27(1) of the Code, as applicable to the facts of the appellant's case [23].
(q)Mr Perrella advised the appellant that if he was found not guilty by reason of unsoundness of mind, either after trial or on appeal, the appellant would be detained at the Governor's pleasure, meaning 'there was no certainty as to if, or when, he would ever be released from detention'. Mr Perrella also advised the appellant that if he pleaded guilty, the appellant would receive a sentence of life imprisonment with a finite non‑parole period, meaning 'there was certainty, subject to the views of the Prisoners Review Board, as to when he would be released from detention' [24].
(r)The prospect of being detained at the Governor's pleasure weighed heavily on the appellant's decision to change his pleas to guilty. Mr Perrella's impression was that 'the uncertainty associated with being detained in a psychiatric institution for an undetermined period was a significant consideration in the appellant's decision to enter pleas of guilty'. The appellant entered those pleas on 27 November 2015 [25].
(s)Prior to the sentencing hearing, Dr Hall provided an updated report dated 1 December 2015 in which he crystallised his diagnosis and concluded that the appellant was not suffering from 'drug induced psychosis' at the relevant time, but rather was suffering the onset of 'paranoid schizophrenia'. Dr Hall added that the onset of paranoid schizophrenia was 'most likely triggered by [the appellant's] use of illicit substances, particularly cannabis' [26].
(t)Based on Mr Perrella's understanding of the decision in Clough and notwithstanding Dr Hall's definitive diagnosis of 'paranoid schizophrenia', Mr Perrella remained of the view that the appellant would be convicted had the matter proceeded to trial in that:
(i)Dr Hall's opinion was that the paranoid schizophrenia was most likely triggered by the appellant's intentional use of cannabis; and
(ii)Mr Perrella considered that the State could prove that the appellant was intoxicated when he did the relevant acts [27].
Counsel for the State did not require Mr Perrella for cross-examination.
The relevant provisions of the Code
Chapter V of the Code is headed 'Criminal responsibility' and comprises s 22 to s 36. Those provisions set out the circumstances in which a person is not criminally responsible for an act or omission.
At all material times, s 26, s 27 and s 28 of the Code have been as follows.
Section 26 provides that '[e]very person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved'.
Section 26 has not been amended since the Code was originally enacted.
By s 27(1):
A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
Section 27(2) provides:
A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
In s 1(1) of the Code:
(a)the term 'mental impairment' is defined to mean 'intellectual disability, mental illness, brain damage or senility'; and
(b)the term 'mental illness' is defined to mean 'an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli'.
Prior to the enactment of the Mental Health (Consequential Provisions) Act 1996 (WA), s 27(1) had referred to the concept of 'mental disease or natural mental infirmity'. The Mental Health (Consequential Provisions) Act deleted the concept of 'mental disease or natural mental infirmity' from s 27(1) and replaced it with the concept of 'mental impairment' as defined in s 1(1).
Section 27(2) was amended by the Criminal Code Amendment Act (No 2) 2009 (WA). Those amendments concerned matters of drafting style and did not make any amendments of substance.
Section 28 provides:
(1)Section 27 applies to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means.
(2)Section 27 does not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not.
(3)When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.
Section 28 was amended by the Criminal Code Amendment Act (No 2). Those amendments concerned matters of drafting style and did not make any amendments of substance.
The relevant provisions of the Criminal Code (Qld)
When the appellant in Clough committed the offence:
(a)Section 26 of the Criminal Code (Qld) was identical to s 26 of the Code.
(b)Section 27(1) of the Criminal Code (Qld) read:
A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person's actions, or of capacity to know that the person ought not to do the act or make the omission.
(c)Section 27(2), s 28(1) and s 28(3) of the Criminal Code (Qld) were identical in substance to s 27(2), s 28(1) and s 28(3) of the Code.
(d)Section 28(2) of the Criminal Code (Qld) read:
They [that is, the provisions of s 27] do not apply to the case of a person who has, to any extent intentionally caused himself or herself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not and whether his or her mind is disordered by the intoxication alone or in combination with some other agent.
Relevant differences between the Code and the Criminal Code (Qld)
Section 27(1) of the Criminal Code (Qld) was identical in substance to the first par of s 27 of the Code before the first par of s 27 was amended by the Mental Health (Consequential Provisions) Act to become s 27(1) of the Code as currently enacted.
The phrase 'and whether his or her mind is disordered by the intoxication alone or in combination with some other agent' in s 28(2) of the Criminal Code (Qld) does not appear in s 28(2) of the Code. That phrase was added by an amendment made in 1997 to s 28(2) of the Criminal Code (Qld). The amendment was made in response to the decision of the Court of Criminal Appeal of Queensland in Re Bromage.[2]
[2] Re Bromage [1991] 1 Qd R 1.
In Re Bromage (11 ‑ 12), the Court of Criminal Appeal held that the Mental Health Tribunal of Queensland was entitled to find that, at the time of the offending, the accused's mental condition was 'not one caused by the mere addition of alcohol', but was a mental condition in which 'the effects of the combined involuntary ingestion of pesticides and voluntary consumption of alcohol was probably more than the summation of their separate effects' and resulted in a state of mental disease which deprived the accused of one or more of the capacities specified in s 27 of the Criminal Code (Qld).
Two issues in relation to the proper construction of s 28 of the Code
In the present case, two issues arise in relation to the proper construction of s 28 of the Code.
The first issue is whether, in the case of an accused whose mind was allegedly disordered by unintended intoxication (within s 28(1)):
(a)it is also necessary for the accused to prove that a 'mental impairment' (as defined in s 1(1) of the Code) caused the accused to be deprived of a relevant capacity (referred to in s 27(1) of the Code) in order for the accused to be excused from criminal responsibility for the relevant act or omission; or
(b)it is sufficient for the accused to prove that it was the accused's mind, disordered by unintended intoxication, that caused the accused to be deprived of a relevant capacity (referred to in s 27(1)) in order for the accused to be excused from criminal responsibility for the relevant act or omission, regardless of the existence of or any role played by a 'mental impairment' (as defined in s 1(1)).
I will refer to this issue as the First Issue of Construction.
The second issue is whether, in the case of an accused who intentionally caused himself or herself to become intoxicated:
(a)the accused is precluded from relying upon the excuse in s 27(1) of the Code, even if the accused can prove that it was a 'mental impairment' (as defined in s 1(1) of the Code) and not the intoxication which caused the accused to be deprived of a relevant capacity (referred to in s 27(1)); or
(b)the accused may rely upon the excuse in s 27(1) if the accused can prove that it was a 'mental impairment' (as defined in s 1(1)) and not the intoxication which caused the accused to be deprived of a relevant capacity (referred to in s 27(1)).
I will refer to this issue as the Second Issue of Construction.
The decision in Clough
In Clough, the appellant was charged with the murder of his wife. After a trial before a judge alone, the appellant was found guilty of murder.
The appellant was aged 38 at the time of the trial. He had a long history of illicit drug abuse. The appellant had been using cannabis since the age of 15 and methylamphetamine since the age of 32. He had a psychotic disorder for which he was being treated.
The appellant was alleged to have murdered his wife on Friday 16 September 2005.
The trial judge found that the appellant had used illicit drugs in the days leading up to the victim's death, as follows [5]:
(a)on Sunday he smoked marijuana;
(b)on Monday he injected methylamphetamine and probably smoked marijuana;
(c)on Tuesday he smoked marijuana;
(d)on Wednesday he injected half a gram of methylamphetamine and smoked marijuana; and
(e)on Thursday he smoked marijuana.
The trial judge was satisfied, on the balance of probabilities, that at the time of the alleged murder on Friday 16 September 2005 [6]:
(a)the appellant suffered from a psychotic disorder which was a 'mental disease' within s 27(1) of the Criminal Code (Qld);
(b)the appellant was psychotic;
(c)the methylamphetamine which the appellant had voluntarily consumed on Wednesday 14 September 2005 was continuing to have a deleterious effect on his mental state;
(d)the appellant was deprived of the capacity to know he ought not do the relevant acts;
(e)the appellant would not have been deprived of that capacity but for the continuing effects on his mental state of the methylamphetamine which he had voluntarily consumed on Wednesday 14 September 2005; and
(f)there would not have been a substantial impairment of that capacity but for the continuing effects on the appellant's mental state of the methylamphetamine which he had voluntarily consumed on Wednesday 14 September 2005.
The appellant appealed against his conviction. He alleged that the trial judge had misdirected herself in relation to 'intoxication' within s 28 and had erred in applying, relevantly, s 27 and s 28(2).
Muir JA (Fraser JA agreeing and Applegarth J relevantly agreeing) held:
(a)The trial judge found, correctly, that the meaning of the word 'intoxication' in s 28 was a question of law [11].
(b)The ordinary meaning of 'intoxication' is 'wide enough to encompass more than comparatively short-term elation or stimulation'. 'Intoxication' within s 28(2) includes 'the secondary effect of amphetamine consumption from which the appellant was suffering at relevant times' [14].
(c)The purpose of the exclusion in s 28(2) of intentional intoxication or stupefaction from the relief from criminal responsibility afforded by s 27 is 'to deprive a person who has intentionally used a substance to become intoxicated or stupefied of the ability to deny criminal responsibility for his or her acts or omissions on the grounds of lack of mental capacity' [15]. There can be 'no sensible reason for not applying s 28(2) merely because the state of intoxication or stupefaction intentionally caused by the substance used by that person lasts for days rather than hours'. The text of s 28(2) contains 'no express temporal limitation and none is implicit' [15].
(d)The appellant's submission that if the appellant had a psychosis (or diseased mind) when he killed his wife, as the trial judge found, and if the psychosis (or diseased mind) deprived the appellant of a relevant capacity (referred to in s 27(1)), as her Honour found, then s 27(1) applied to relieve the appellant of criminal responsibility, and it did not matter that the lack of the relevant capacity was caused by a combination of an underlying mental condition and intoxication, should be rejected [25] ‑ [26].
(e)Section 27(1) applies only if it is the 'state of mental disease or natural mental infirmity' which deprives the person of one of the relevant capacities [26]. Further [26]:
Where a person is deprived of a relevant capacity by the effects of intoxication on a pre-existing condition, the pre-requisites for release from criminal responsibility are not engaged. If s 27(1) did apply in those circumstances, it would be inconsistent in its application with s 28 (unless construed as contended for by counsel for the appellant). Such a construction could also produce some unpalatable and/or unexpected results. For example, a person could obtain the benefit of the section where knowingly deleterious drug or alcohol consumption acted on a relatively minor mental disease to cause the loss of a relevant capacity. This construction of s 27(1) is consistent with that taken in England in relation to the broadly similar provisions of the Homicide Act 1957 (UK) and with authority in this State (See Re Bromage [1991] 1 Qd R 1 at 5; (1990) 48 A Crim R 79 at 83 and the cases there cited).
(f)The finding that the appellant's intoxication (if it existed contrary to the appellant's argument) was intentional was not challenged in the appeal [27]. Consequently, s 28(2) 'would clearly operate to prevent the appellant obtaining the benefit of s 28(1) unless the words "some other agent" in s 28(2) were incapable of including an underlying mental disorder such as the condition from which the appellant suffered' [27].
Muir J explained the significance of the words 'other agent' in the context of the phrase 'whether his or her mind is disordered by the intoxication alone or in combination with some other agent' in s 28(2) of the Criminal Code (Qld) (which phrase, as I have mentioned, does not appear in s 28(2) of the Code) as follows [29] ‑ [30]:
The words 'other agent' in 'mind is disordered by the intoxication alone or in combination with some other agent' relate to the words 'the intoxication'. 'Other agent' is therefore a reference to, or at least includes, a state or condition which operates to produce an effect, rather than only another toxic substance as the appellant's counsel argues. This construction accords with the general scheme of s 28. Section 28(1) makes the section applicable to a person in a state of 'intoxication or stupefaction caused … by drugs or intoxicating liquor or by any other means'. By operation of subs (1), it does not matter for the purposes of s 28 whether the state of intoxication or stupefaction is caused by alcohol, drugs, a combination of them or by 'any other means'. There is thus little justification for construing 'other agent' as meaning 'other toxic substance'. It is already plain from subs (1) that the intoxication to which subs (2) refers may be caused by a combination of drugs, intoxicating liquor or other substances.
Additionally, if 'other agent' was intended to mean 'other toxic substance', it would have been simple enough to select words which gave effect to that intent. Instead, the word 'agent', which is strongly indicative of a quite different and broader meaning, was selected. In my view, the words 'whether his or her mind is disordered by the intoxication alone or in combination with some other agent' were inserted out of an abundance of caution in order to remove any possible doubt about the meaning of the provision as it stood prior to amendment.
The decision in The State of Western Australia v Herbert
In The State of Western Australia v Herbert,[3] the accused was convicted, after a trial before Jenkins J alone, of five counts in an indictment. The accused pleaded not guilty to each charge on account of unsoundness of mind. Her Honour convicted the accused of all charges.
[3] The State of Western Australia v Herbert [2017] WASC 101.
Her Honour found that the accused had psychosis when he did the acts said to constitute each alleged offence [327]. However, her Honour was not satisfied, on the balance of probabilities, that the accused's mental impairment deprived him of any capacity referred to in s 27(1) of the Code [328]. Her Honour noted that it was unnecessary for her to decide whether the defence of insanity under s 27(1) did not apply because the accused had intentionally caused himself to become intoxicated within s 28(2) of the Code as the accused had failed to satisfy her Honour, on the balance of probabilities, of the requirements of the insanity defence [330]. Her Honour added that, in any event, had the accused so satisfied her Honour, the insanity defence would not have applied because the accused had failed to satisfy her Honour, on the balance of probabilities, that he did not intentionally cause himself to become intoxicated when he did the relevant acts [330]. Her Honour was satisfied, on the balance of probabilities, that the accused was intoxicated by, at least, cannabis and alcohol when he did the acts said to constitute the alleged offences [330].
In her reasons at [60] ‑ [61], Jenkins J referred with approval to the observations of Muir JA in Clough [26], which I have reproduced at [78(e)] above.
Her Honour then said:
(a)Section 27(1) of the Code applies only 'where the accused's state of mental impairment, which by definition does not include temporary intoxication by drugs and/or alcohol, deprives the accused of one of the relevant capacities' [61].
(b)Section 28(2) provides that s 27 does not apply 'to an accused who has intentionally caused himself to become intoxicated' [62]. Thus, 'even where an accused can prove that his mental impairment deprived him of a relevant capacity, he will not be able to avail himself of the insanity defence if he was voluntarily intoxicated at the time he did the relevant acts' [62].
(c)The accused had submitted that s 28(1) enlarges the application of s 27 to include 'a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means' [63]. The accused had also submitted that the purpose of s 28(2) is to clarify that such a person does not include 'a person who has intentionally caused himself to become intoxicated' [63]. Her Honour observed that, on the accused's construction of s 28(2), 'a person who was concurrently mentally impaired and intentionally intoxicated could still avail himself of the defence in s 27, as long as he could prove that his mental impairment (as opposed to his intoxication or a combination of mental impairment and intoxication) deprived him of a relevant capacity' [64]. Her Honour rejected the accused's submission as to the proper construction of s 28(2) for the following reasons [65] ‑ [66]:
There are two difficulties with this construction of s 28(2). The first is that it would be odd if s 28(2) excluded a person from relying on the defence of insanity by reason of intentional intoxication, when s 27 and s 28(1) do not say or suggest that intoxication is a basis for the defence. That is, s 27 does not include a person who is deprived of a relevant capacity by virtue of unintentional or intentional intoxication. Intoxication is irrelevant to determining whether the accused is not guilty of unsoundness of mind under s 27, in the sense that the accused must prove that he was mentally impaired (not intoxicated) and that his mental impairment deprived him of a relevant capacity. If the accused is correct, s 28(1) explicitly extends the application of s 27 to a person who is unintentionally intoxicated, in the sense that it provides that an accused may avail himself of the defence of insanity if his mind was disordered by unintentional intoxication and his unintentional intoxication alone or, possibly, in combination with a mental impairment deprived him of a relevant capacity. On this construction s 28(2) is superfluous.
The second is that s 28(2) refers to s 27; not s 28(1). If the intention was to exclude a person who was intentionally intoxicated from the extension of the defence of insanity provided for in s 28(1), s 28(2) would say that 's 28(1) does not include a person who has intentionally caused himself to become intoxicated'. The reference in s 28(2) to s 27 supports the view that a person falling within the description in s 28(2) cannot avail themselves of the defence of insanity, irrespective of whether his intoxication deprived him of relevant capacity.
It is apparent that Jenkins J was of the opinion that:
(a)By virtue of s 28(2), s 27(1) does not apply, in any circumstances, to an accused who has intentionally caused himself or herself to become intoxicated. Even where an accused can prove that he or she was mentally impaired and that his or her mental impairment deprived him or her of a relevant capacity referred to in s 27(1), the accused will not be able to avail himself or herself of s 27(1) if he or she was voluntarily intoxicated when the relevant acts were done.
(b)Despite s 28(1), unintentional intoxication is irrelevant in determining whether an accused is not guilty on account of unsoundness of mind under s 27(1), in the sense that the accused must prove that he or she was mentally impaired (not intoxicated) and that his or her mental impairment deprived him or her of a relevant capacity referred to in s 27(1).
(c)Section 28(1) merely stipulates that an accused who is unintentionally intoxicated is not precluded from relying upon s 27(1) if the accused can prove that when he or she was unintentionally intoxicated the accused was also in such a state of mental impairment as to deprive him or her of a relevant capacity referred to in s 27(1).
The decision in The State of Western Australia v Knock
In The State of Western Australia v Knock,[4] the accused was charged with one count of murder. She pleaded not guilty on account of unsoundness of mind. After a trial before Derrick J alone, the accused was found not guilty on that basis.
[4] The State of Western Australia v Knock [2020] WASC 246.
His Honour accepted psychiatric evidence to the effect that the accused was, at the time of the killing, suffering from paranoid schizophrenia [498]. His Honour was therefore satisfied, on the balance of probabilities, that the accused was, at the time of the killing, in a state of mental impairment within s 27(1) of the Code [498]. In particular, his Honour was satisfied, on the balance of probabilities, that at the time of the killing the accused was 'completely deprived of the capacity to know that she ought not to do the act that caused the deceased's death' [504].
At the trial, the State conceded that the accused was mentally impaired when she killed the deceased and that the mental impairment deprived the accused of the capacity to know that she ought not to do the act that caused the deceased's death [508]. However, the State contended that the accused had failed to prove that she did not intentionally cause herself to become intoxicated at the time of the killing [508]. In particular, the State contended that the accused had failed to prove that she did not intentionally cause her mind to become, at the time of the killing, subject to the overpowering action or effect of alcohol [508]. After reviewing the evidence, Derrick J concluded that the accused had proved, on the balance of probabilities, that she was not intoxicated when she did the act that caused the deceased's death [549]. Consequently, the accused was not precluded by s 28(2) of the Code from relying on the defence of insanity under s 27(1) [549].
Derrick J said that Jenkins J's interpretation of s 28(1) of the Code in Herbert was 'clearly contrary to the interpretation given to s 28(1) in a number of earlier Queensland authorities'; in particular, R v Corbett;[5] R v Smith;[6] R v Kusu[7] and Re Bromage (8). His Honour was convinced that Jenkins J's interpretation of s 28(1) was wrong [66]. His Honour said that s 28(1) 'does more than merely stipulate that a person who is at the relevant time unintentionally intoxicated is not precluded from relying on s 27(1) provided that they can prove that at the time of being intoxicated they were also mentally impaired and that the mental impairment deprived them of one of the capacities specified in [s 27(1)]' [67]. His Honour elaborated [67]:
[B]y providing that s 27 'applies to the case of a person whose mind is disordered by intoxication or stupefaction', s 28(1) makes clear that it is the disorder of the mind by unintentional intoxication (that is, by the unintentional overpowering of the mind by a drug or alcohol) that renders s 27 applicable, not just the unintentional intoxication itself. Further, given that the section has to be read in light of the terms of s 27, since it is that section that s 28(1) is applying to the person, it is readily apparent that the reference to the 'disordered' mind of the person is intended to be, and should be read as, a reference to a person who is deprived of one of the capacities specified in s 27(1). In other words, if a person, at the time of doing the relevant act or making the relevant omission, is deprived of one of the capacities specified in s 27(1) by reason of intoxication caused without intention on the person's part, then s 27(1) applies to the person and the person is not criminally responsible for the act or omission on account of unsoundness of mind. (original emphasis)
[5] R v Corbett [1903] St R Qd 246, 249.
[6] R v Smith [1949] St R Qd 126, 130.
[7] R v Kusu [1981] Qd R 136, 141 ‑ 142.
Derrick J said that, in his view, Muir JA in Clough 'was not … intending to convey that where a person is deprived of a relevant capacity by the effects of unintentional intoxication on a pre‑existing condition the pre‑requisites for release from criminal responsibility under s 27(1) are not engaged (or to put it another way, was not intending to convey that unintentional intoxication is irrelevant to determining whether the accused is not guilty on account of unsoundness of mind under s 27(1))' [77]. Derrick J added that, in his view, 'the point that Muir JA was … seeking to make was that if s 27(1) was construed to apply in circumstances where a person is deprived of a relevant capacity by the effects of intentional intoxication on a pre‑existing condition this would be inconsistent with s 28(2) which expressly provides that s 27(1) does not apply to a person who has intentionally caused themselves to become intoxicated even in circumstances where the person's mind is disordered not solely by the intoxication but by a combination of the intoxication with "some other agent"' [77]. Derrick J concluded at [79] that the reasoning of Muir JA in Clough did not support Jenkins J's interpretation of s 27(1) and s 28(1) in Herbert.
Derrick J said that there was a 'good argument' for concluding that Jenkins J's interpretation of s 28(2) of the Code in Herbert may not be correct [83]. In particular, his Honour was of the view that the effect of s 28(2), read with s 28(1), is that 'if a person, at the time of doing the relevant act or making the relevant omission, is deprived of one of the capacities specified in s 27(1) by reason of intentional intoxication, then s 27(1) does not apply and the person cannot escape criminal responsibility for the act or omission' [83]. His Honour added that, on that interpretation of s 28(2), 'if a person can prove on the balance of probabilities that their mental impairment as opposed to intoxication was the substantial or material cause of the loss of one of the capacities specified in s 27(1), the fact that the person was intentionally intoxicated at the time of doing the relevant act or making the relevant omission would not preclude them from relying on s 27(1)' [83]. However, despite the opinion he had expressed in relation to his alternative interpretation of s 28(2), Derrick J was not convinced that Jenkins J's interpretation of s 28(2) was wrong. His Honour therefore decided (but not without some reservation) to adopt and apply Jenkins J's interpretation of that provision [85].
Counsel for the appellant's submissions
Counsel for the appellant submitted that '[a]t the heart of' the appeal was the contention that the appellant's voluntarily intoxication 'did not necessarily preclude reliance by him on the defence of insanity'.
Counsel said that the appellant did not 'challenge the competency of the advice he was given by [Mr Perrella] at the time [the appellant's] pleas of guilty were entered'. What the appellant sought 'to agitate' on appeal was that Derrick J's decision in Knock, delivered after the appellant pleaded guilty, 'arguably casts doubt over the legal premise that underpinned [Mr Perrella's] advice'.
Counsel contended that Mr Perrella's advice to the appellant 'was based to a large degree on Mr Perrella's understanding of' the decision of the Court of Appeal of Queensland in Clough.
According to counsel for the appellant:
(a)Derrick J's decision in Knock [62] ‑ [86] 'has cast some doubt on the correctness of an earlier view' expressed by Jenkins J in Herbert [60] ‑ [67].
(b)In Herbert, Jenkins J, like Mr Perrella, was of the view that Clough supported her Honour's findings in relation to intentional intoxication and precluded reliance by an accused upon s 27(1) of the Code.
(c)However, in Knock, Derrick J was of the view that an accused who is intentionally intoxicated is not necessarily prevented from relying upon s 27(1).
Counsel argued that 'if the view of Derrick J as to what the decision in Clough actually entails is to be preferred to that of Jenkins J in Herbert, then [the appellant] would have an arguable defence such that his appeal should be upheld, the two convictions set aside and a trial ordered before a Judge sitting alone'.
Counsel said that the appellant had 'attempted to deduce' from the reports of Dr Hall and Dr Brett 'support for [the appellant's] proposition that had his initial pleas of not guilty been maintained and the charges proceeded to trial he could have arguably established on the balance of probabilities that his mental impairment as opposed to his voluntary intoxication was the substantial or material cause of the loss of one of the capacities specified in s 27(1)'. See Knock [83].
Counsel argued that the 'combined effect' of the reports is that 'they do not foreclose on the appellant's mental illness as being objectively viewed as a substantial or material cause of the loss of the capacities that he experienced at the time of the offending'.
Counsel for the State's submissions
Counsel for the State submitted in relation to the First Issue of Construction that, in the case of an accused whose mind was allegedly disordered by unintended intoxication (within s 28(1) of the Code), it is sufficient for the accused to prove that it was the accused's mind, disordered by unintended intoxication, that caused the accused to be deprived of a relevant capacity (referred to in s 27(1) of the Code) in order for the accused to be excused from criminal responsibility for the relevant act or omission, regardless of the existence of or any role played by a 'mental impairment' as defined in s 1(1) of the Code. In other words, it was submitted that a disordered mind caused by unintended intoxication is sufficient to relieve an accused of criminal responsibility if it is the mind, disordered by that intoxication, which causes an accused to be deprived of a relevant capacity.
Counsel submitted in relation to the Second Issue of Construction that, in the case of an accused who was intentionally intoxicated, the accused is precluded from relying upon the excuse in s 27(1), even if the accused can prove that it was a 'mental impairment' (as defined in s 1(1) of the Code) and not the intoxication which caused the accused to be deprived of a relevant capacity (referred to in s 27(1)).
It was contended that, as a matter of fact, an accused may be deprived of a relevant capacity because of the effect of intoxication upon a pre-existing mental impairment. That circumstance is addressed by the text of s 27 and s 28. There is no qualification to the application of s 28(2) in relation to s 27(1). If an accused was intentionally intoxicated, then s 27(1) ceases to have any application to questions of criminal responsibility. That is apparent from the text of s 28(2).
It follows, so it was argued, that any interaction between an accused's intentional intoxication within s 28(2), on the one hand, and the subject matter of s 27(1), on the other, is, as a matter of law, irrelevant. It is irrelevant because the text of s 28(2) does not contemplate any interaction between an accused's intentional intoxication within s 28(2) and the subject matter of s 27(1). Counsel submitted that whether intentional intoxication influenced an underlying mental impairment which caused the deprivation of a relevant capacity, or whether an underlying mental impairment operated independently of intentional intoxication to cause the deprivation of a relevant capacity, is irrelevant in relation to the insanity defence in s 27.
It was submitted that if the State's preferred construction is accepted, then the appeal must be dismissed in that there is no suggestion by the appellant that his intoxication was other than intentional.
Counsel for the State also submitted that, even if the appellant's preferred construction is accepted, the appellant is confronted by an insurmountable obstacle on appeal because he pleaded guilty to murder in order to avoid the consequences of a custody order under s 21 and s 24 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). Counsel referred to Mr Perrella's evidence to the effect that Mr Perrella advised the appellant that if he were to be found not guilty on account of unsoundness of mind then the appellant would be detained in a psychiatric facility for an indefinite period. Mr Perrella said that it was the prospect of indefinite detention in a mental health facility that 'weighed heavily' on the appellant and was a 'significant consideration' in his decision to plead guilty to murder. Counsel submitted that it is apparent from Mr Perrella's evidence that the appellant preferred the certainty of a fixed non-parole period as part of a sentence of life imprisonment for murder. In these circumstances, so it was submitted, it cannot be concluded that the appellant has suffered a miscarriage of justice. The appeal should therefore be dismissed regardless of how the First Issue of Construction and the Second Issue of Construction are resolved.
The merits of the appeal
An accused may enter a plea of guilty to a charged offence whether or not the accused believes that he or she has committed the offence. A court will act on an accused's plea of guilty when the plea is entered in open court by a person who is an adult and appears to be of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the accused's interests. There is no miscarriage of justice if the court does act on such a plea, even if the accused is not in fact guilty of the charged offence. See Meissner v The Queen.[8]
[8] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141 (Brennan, Toohey & McHugh JJ).
A plea of guilty to a charged offence necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. See R v Hill.[9] The plea also negatives all defences. See Schugman v Menz.[10]
[9] R v Hill [1979] VR 311, 312 (Young CJ, Menhenitt & Crockett JJ).
[10] Schugman v Menz [1970] SASR 381, 381-382 (Bray CJ).
As Dawson J observed in Meissner (157), an accused may plead guilty upon grounds other than the accused's belief in his or her guilt; for example, 'to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty'.
The circumstances in which a conviction based on a plea of guilty will be set aside on appeal were explained by Steytler P (with whom Wheeler JA and I agreed) in Vella v The State of Western Australia:[11]
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice: Borsa v R [2003] WASCA 254 at [20]; Hogue v The State of Western Australia [2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Borsa at [20]; Meissner v R (1995) 184 CLR 132 at 157 per Dawson J and Hogue at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa at [20] and Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5.
[11] Vella v The State of Western Australia [2006] WASCA 129 [26].
Steytler P's statement of principle was reproduced in substance by McLure P (with whom Mazza J and I agreed) in Mikulic v The State of Western Australia.[12] See also Chowdhury v Kenny [No 2][13] and Bowdenv The Stateof Western Australia.[14]
[12] Mikulic v The State of Western Australia [2011] WASCA 14 [23].
[13] Chowdhury v Kenny [No 2] [2012] WASCA 35 [8] (McLure P; Buss & Mazza JJA agreeing).
[14] Bowdenv The Stateof Western Australia [2013] WASCA 118; (2013) 45 WAR 168 [19] (Buss JA; McLure P & Mazza JA agreeing).
I will now consider whether, in the present case, a miscarriage of justice has occurred which requires that the judgments of conviction based on the appellant's pleas of guilty be set aside.
The Code, as originally enacted, adopted substantially Sir Samuel Griffith's draft Criminal Code, which had been enacted in Queensland by the Criminal Code Act 1899 (Qld).
Sir Samuel Griffith's notes in his draft Criminal Code stated that the source of the proposed provisions subsequently incorporated in s 26 and s 27 of the Code was 'common law' and the source of the proposed provision subsequently incorporated substantially in s 28 of the Code was 'probably common law'.
Sir Samuel made these comments in his notes in relation to the presumption of sanity and the defence of insanity at common law:
There is, perhaps, no branch of the criminal law which has given rise to more discussion and difference of opinion than the relation of mental infirmity to criminal responsibility. The rule of the Common Law is generally thus stated - Every man is presumed to be sane until the contrary is proved. To establish a defence on the ground of insanity it must be clearly proved that at the time of committing the act the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature or quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.
Later in his notes, Sir Samuel observed in relation to the proposed unsoundness of mind provision subsequently incorporated in s 27(1) of the Code:
I believe that any direction to a jury which omitted a reference to any one of the three elements - capacity of perception, capacity of choice, and moral capacity - in a case in which such an element was material would be contrary to the Common Law.
Sir Samuel said in a footnote to the provision subsequently incorporated in s 27(2) of the Code that the provision embodied 'the opinion of the Judges on the question actually submitted to them in McNaghten's Case'.
In McNaghten's Case,[15] the fourth question proposed to the Judges was: 'If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?'. All of the Judges (Maule J dissenting) answered the question as follows:
[T]he answer must of course depend on the nature of the delusion: but, making the same assumption as we did before, namely, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.
[15] McNaghten's Case (1843) 10 Cl & Fin 200; 8 ER 718, 723.
As I have mentioned, Sir Samuel commented in his notes that the source of the proposed provision subsequently incorporated substantially in s 28 of the Code was 'probably common law'. The common law as to intoxication when Sir Samuel prepared his draft Criminal Code was stated by Sir James Stephen in A Digest of the Criminal Law (5th ed, 1894).
In Article 28, Sir James Stephen stated the common law of insanity, relevantly, as follows:
No act is a crime if the person who does it is at the time when it is done prevented … by any disease affecting his mind
(a)from knowing the nature and quality of his act; or,
(b)from knowing that the act is wrong; … (footnotes omitted)
In Article 30, Sir James Stephen stated the common law in relation to drunkenness, as an excuse from criminal responsibility within the common law of insanity, as follows:
Voluntary drunkenness is not regarded as a disease affecting the mind within the meaning of Article 28; but involuntary drunkenness, and diseases caused by voluntary drunkenness, fall, so far as they affect the mind, within that Article.
If the existence of a specific intention is essential to the commission of a crime, the fact that the offender was drunk when he did the act which, if coupled with that intention, would constitute such crime, should be taken into account by the jury in deciding whether he had that intention. (footnote omitted)
The proper approach to the construction of the Code was enunciated by Dixon and Evatt JJ in Brennan v The King:[16]
[The Code is] intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered.
See also Kaporonovski v The Queen[17] and Stuart v The Queen.[18]
[16] Brennan v The King [1936] HCA 24; (1936) 55 CLR 253, 263.
[17] Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, 236 (Gibbs J; Stephen J agreeing).
[18] Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 437 (Gibbs J; Mason J agreeing).
As Gibbs J noted in Stuart (437):
(a)'it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground'; but
(b)'it should be remembered that the first duty of the interpreter of [the provisions of the Code] is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance'.
See also Vallance v The Queen.[19]
[19] Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56, 74 - 75 (Windeyer J).
The focus of statutory construction is on the text, context and purpose of the provision.
In SZTAL v Minister for Immigration and Border Protection,[20] Kiefel CJ, Nettle and Gordon JJ said:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] ‑ [71]; 72 ALJR 841; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]; 83 ALJR 1152). Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; 71 ALJR 312). This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
[20] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14].
The function of a definition in a statute is not, except in rare cases, to enact substantive law. Rather, its function is to provide aid in construing the substantive enactment that contains the defined term. The meaning of the definition depends on the context, and the purpose or object, of the substantive enactment. See Kelly v The Queen[21] and Allianz Australia Insurance Ltd v GSF Australia Pty Ltd.[22]
[21] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [103] (McHugh J).
[22] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 [12] (McHugh J).
In the present case, I will address the issue of intoxication or stupefaction, caused by drugs or intoxicating liquor or by any other means, for the purposes of s 26, s 27, s 28(1) and s 28(2) of the Code. It is unnecessary to consider the issue of intoxication or stupefaction, caused by drugs or intoxicating liquor or by any other means, for the purposes of s 28(3) or any other provisions of the Code. Also, it is unnecessary to consider the application of s 27 where the accused was not intoxicated or stupefied when he or she did the relevant act or made a relevant omission, but the accused had a 'mental impairment', as defined in s 1(1) of the Code, or the accused's mind was affected by delusions on some specific matter or matters, when he or she did the relevant act or made the relevant omission, caused by the appellant's historical and chronic use of drugs or intoxicating liquor.
Section 26 of the Code creates a presumption, until the contrary is proved, that an accused is of sound mind and, at any time which comes in question, was of sound mind.
Further and in any event, a miscarriage of justice will not occur, and an appeal court will not set aside a conviction based on a plea of guilty, merely because the appellant had an erroneous understanding about whether he had 'an arguable defence' to the charge.
In the present case, the allegation, as asserted in the ground of appeal, that the appellant had 'an erroneous understanding about whether he had an arguable defence to the charges of murder' is therefore misconceived. In any event, the alleged erroneous understanding has not been established on the material before the court. The appellant did not depose in his affidavit sworn 10 June 2020 (or in any other affidavit) that at the material time he had the alleged erroneous understanding.
The ground of appeal has not been made out.
Conclusion
I would grant the appellant leave to adduce the additional evidence from Mr Perrella. Leave to appeal should be granted. However, the ground of appeal has not been established. In the circumstances, there would be no utility in granting an extension of time to appeal. I would therefore dismiss the application for an extension of time. The appeal must be dismissed.
MAZZA JA:
I have had the advantage of reading the draft reasons of Buss P and Beech JA. I agree with them that this appeal must be dismissed and with the orders proposed by Buss P. What follows are my reasons for these conclusions.
All of the relevant factual background has been set out in Buss P's reasons. I will repeat it only insofar as it is necessary to explain these reasons.
Introduction
The ground of appeal seeks to impugn convictions for murder based on the appellant's pleas of guilty. The relevant legal principles applicable to an appeal against conviction following a plea of guilty are well established and are accurately described by Buss P in his reasons at [104] ‑ [108]. The onus on the appellant to satisfy this court that he has suffered a miscarriage of justice is difficult to discharge. While the categories of a miscarriage of justice in such circumstances are not closed, the appellant does not allege that any of the well‑recognised categories of miscarriage of justice described in [107] apply to this case. There is no issue that:
(a)The pleas of guilty were unequivocal and freely made without improper inducement, fraud, intimidation or the like.
(b)The appellant understood the charges and intended to admit his guilt.
(c)On the admitted facts, the appellant killed his victims and intended to do so.
(d)At the time he entered the pleas, he was fit to plead.
From shortly after the commission of the offences until he was later sentenced, the appellant had legal advice and representation from Mr Perrella, an experienced criminal lawyer. The appellant does not make any criticism of Mr Perrella's advice and representation, nor does he challenge the contents of Mr Perrella's affidavit in these proceedings, sworn 21 October 2020.
The sole basis upon which the appellant seeks to set aside the convictions is, as the ground of appeal states:
A miscarriage of justice was occasioned because the appellant's pleas of guilty were entered in circumstances in which the integrity of the pleas of guilty [was] adversely affected by the appellant's erroneous understanding about whether he had an arguable defence to the charges of murder'.
The 'arguable defence' referred to in the ground of appeal is a defence under s 27(1) of the Criminal Code (WA) (the Code), although the written submissions filed by the appellant refer briefly and without elaboration to a 'defence' available to him under s 28(3) of the Code.[34] This aspect of the appellant's case may immediately be put to one side because s 28(3) of the Code does not provide an excuse from criminal responsibility.[35]
[34] Appellant's submissions [59].
[35] See Herlihy v R [1956] St R Qd 18, 33.
Why the ground of appeal cannot succeed
In my opinion, the ground of appeal cannot succeed for three reasons.
First, there is no evidence before this court from the appellant as to his understanding, at the time he entered his pleas of guilty, of whether he had an arguable defence. Specifically, there is no evidence that he understood he had no arguable defence under s 27(1) of the Code. Mr Perrella says nothing about the appellant's understanding. If anything, the evidence of Mr Perrella, referred to at [180] below, undermines any assertion that the appellant did not understand he had an arguable defence under s 27(1) of the Code. It shows that the appellant was well aware such a defence was open to him and he chose not to pursue it.
Second, in any event, the mere existence of an arguable defence does not justify the setting aside of a conviction based on a plea of guilty. The existence of an 'arguable defence', even a strongly arguable defence, falls short of establishing that an offender could not, in law, be found guilty. It must be borne in mind, as stated by Dawson J in Meissner v The Queen[36], that an accused person may enter a plea of guilty for reasons other than a belief as to his or her guilt. Such reasons include, relevantly to this case, a more advantageous penalty.
[36] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157.
In the present case, having regard to the evidence in [22] ‑ [25] of Mr Perrella's affidavit of 21 October 2020 (which was unchallenged by the appellant), while Mr Perrella advised the appellant that he would be convicted, this statement, in the context of his discussions with the appellant, was an expression of opinion as to the likely outcome of a trial. It was not a statement that the appellant had no arguable defence or that he could not reasonably defend the charges. Nor, in my opinion, could the appellant have reasonably understood it in this way. Having regard to Mr Perrella's affidavit, I find that the appellant freely and voluntarily decided that he did not wish to enter pleas of not guilty by reason of unsoundness of mind. He did so for fear that to plead not guilty on this basis would expose him to the risk, which he regarded as undesirable and was unwilling to take, of being detained in a psychiatric facility for an indefinite period pursuant to a custody order made under s 21 and s 24 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).
Third, even on the construction of s 28(2) of the Code urged upon this court by the appellant, as Buss P demonstrates in his reasons at [162] ‑ [164], and as acknowledged by Beech JA at [223], the expert psychiatric evidence was incapable of discharging the appellant's onus to prove that his mental impairment at the time of the commission of the offences was independent of his admittedly intentional intoxication.
Construction of s 28(1) and s 28(2) of the Code
I now turn to the issues of statutory construction raised in this appeal in respect of s 28(1) and s 28(2) of the Code. While the outcome of the appeal does not depend upon the resolution of these issues, it is highly desirable for this court to decide them, having regard to the different opinions expressed by Jenkins J in The State of Western Australia v Herbert[37] and Derrick J in The State of Western Australia v Knock.[38]
[37] The State of Western Australia v Herbert [2017] WASC 101.
[38] The State of Western Australia v Knock [2020] WASC 246.
Buss P has set out the text of s 26, s 27 and s 28 of the Code, outlined the statutory history, stated the proper approach to the construction of the Code and statutes generally, and summarised the submissions of the parties. I respectfully adopt, without repetition, what his Honour has written in respect of these matters.
As to the issue of the construction of s 28(1), I, like Beech JA, agree with Buss P's construction set out at [134] and [135]. I do so for the reasons given by Buss P. Accordingly, and with great respect to her Honour, Jenkins J's construction of s 28(1), as expressed in Herbert, should not be followed.
As to the issue of construction in respect of s 28(2), as I understand the reasons of Buss P and Beech JA, they reach the same conclusion, although their paths of reasoning differ.
I agree with their conclusion (see Buss P [152], [154] and [158] and Beech JA [219] ‑ [221]). My reasons for doing so are set out below.
The appellant's submissions essentially adopt the construction posited, but ultimately not adopted, by Derrick J in Knock. The respondent's submissions closely resemble Jenkins J's construction of s 28(2) in Herbert. Both constructions are, in my opinion, open on a strictly textual analysis of the language used in s 28(2); that is, without resort to considerations of context and purpose.
Section 27, s 28(1) and s 28(2) of the of the Code are interrelated and must be construed in this context. Section 28(3) is not so interrelated with s 27. This is because, as I have explained at [176], it does not deal with criminal responsibility.
Broadly speaking, s 27, s 28(1) and s 28(2) deal with the criminal responsibility of a person whose mind has been disordered by mental impairment, delusions and things that intoxicate or stupefy the mind. Section 27, s 28(1) and s 28(2) do not relieve a person from criminal responsibility simply because their mind was disordered by reason of these things.
In the case of a person with mental impairment, such a condition only relieves a person from criminal responsibility if it deprives that person of at least one of the capacities referred to in s 27(1). By s 27(2), a person suffering from delusions, who is not otherwise entitled to the benefit of s 27(1), remains criminally responsible 'to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist'. Section 28(1) and s 28(2) deal with an intoxicated or stupefied person. Each paragraph expressly refers to s 27 and when it is to be applied (s 28(1)) or disapplied (s 28(2)).
Things which intoxicate (typically alcohol) or stupefy (typically drugs) may deprive a person of one of the capacities referred to in s 27(1), or may cause or contribute to the kind of delusions referred to in s 27(2). They may also cause, contribute to, or exacerbate a mental impairment.[39] However, mere intoxication or stupefaction provides no relief from criminal responsibility. As Griffith CJ said in his frequently cited charge to the jury in R v Corbett,[40] 'No one can escape liability merely because he is intoxicated.'
[39] See, in this respect, the observations of Kourakis CJ in Question of Law Reserved (No 1 of 2021) [2021] SASCA 148 [24], albeit in a different statutory context.
[40] R v Corbett [1903] St R Qd 246, 249.
Intoxicants and stupefiers may be consumed with or without intention. As a matter of common human experience, such things are usually intentionally consumed. There are instances when they are not intentionally consumed, for example, where a person is unwittingly or surreptitiously given alcohol or slipped a drug.
The Code, like the common law, recognises that the moral culpability of someone who intentionally consumes a thing which intoxicates or stupefies is different to that of someone whose consumption is unintentional. Accordingly, different legal consequences apply to a person depending upon whether their intoxication or stupefaction is intentional or unintentional. This is reflected in s 28(1) and s 28(2), which distinguish between persons who are intoxicated or stupefied without intention (s 28(1)) and those who intentionally cause themselves to become intoxicated or stupefied (s 28(2)).
The effect of s 28(1) of the Code, in the case of s 27(1), is to expand its ambit beyond that of a person with a mental impairment and excuse from criminal responsibility a person who is unintentionally intoxicated and whose state of unintentional intoxication caused the person to be deprived of at least one of the specified capacities.
Section 28(1) would also apply s 27(2) to a person suffering from delusions and not otherwise entitled to the benefit of s 27(1), whose delusions were caused by unintentional intoxication.
The effect of the broad language used in s 28(2) of the Code is to disapply s 27 in the case of a person who has intentionally caused themselves to become intoxicated or stupefied.
Relevantly to s 27(1), this means that:
(a)a person who has a mental impairment at the time of doing the act or making the omission, is not relieved of criminal responsibility if that mental impairment was caused by, triggered, contributed to, or exacerbated by, intentional intoxication, even if that state caused the loss of one of the capacities referred to in the paragraph; and
(b)a person is not relieved of criminal responsibility if their intentional intoxication caused the loss of one of the capacities referred to in the paragraph.
Relevantly to s 27(2), this means that a person whose intentional intoxication caused the person to suffer delusions is not excused from criminal responsibility to the extent specified in the paragraph.
I do not think, as Derrick J posited in Knock,[41] that s 28(2) provides only that 'if a person, at the time of doing the relevant act or making the relevant omission, is deprived of one of the capacities specified in s 27(1) by reason of intentional intoxication, then s 27(1) does not apply and the person cannot escape criminal responsibility for the act or omission'. Certainly it has this effect. However, its ambit is wider than this. In my opinion, and in addition, s 28(2) has the effect referred to in [197(a)] above.
[41] Knock [83].
As broad as the language of s 28(2) of the Code is, and notwithstanding the absence in s 28(2) of the words present in s 28(1), 'whose mind is disordered by intoxication or stupefaction', it does not go as far as that interpretation stated by Jenkins J in Herbert and contended for by the respondent. To do so would have the effect of disapplying s 27(1) to a mentally impaired offender who was, at the relevant time, deprived of one of the nominated capacities by reason of mental impairment, where their voluntary intoxication had no causative effect in relation to either the mental impairment or the loss of the capacity. Such a construction would, in my opinion, be manifestly unjust and should not be preferred.
I recognise that such a case will be rare. As a matter of fact, having regard to the tendency of intoxicating and stupefying substances to mimic, trigger, cause or exacerbate some mental impairments, it will be evidentially difficult to disentangle these effects from an accused's
mental impairment and the loss of one of the capacities referred to in s 27(1). Nevertheless, there will be cases where an offender is able to discharge this onus and establish, on the balance of probabilities, that they were deprived of the relevant capacity solely by reason of their mental impairment and that their voluntarily intoxication played no role.
In my opinion, the construction of s 28(2), which accords to the statutory text and has due regard to context and purpose, is that described by Buss P and Beech JA. Again, with great respect to Jenkins J, her construction of s 28(2) in Herbert should not be followed.
BEECH JA:
Introduction
Like Buss P, I would refuse an extension of time and dismiss the appeal. Subject to one qualification, I agree with his Honour's reasons. The qualification relates to the proper construction of s 28(2), which is dealt with in [143] ‑ [158] of his Honour's reasons. My construction of s 28(2), and my reasons for adopting that construction, are as follows.
Statutory provisions
The text of the relevant statutory provisions, their legislative history and the terms of the substantially equivalent provisions in the Criminal Code (Qld) are set out in Buss P's reasons. For convenience, I reproduce the key provisions.
Section 27 of the Criminal Code (WA) provides as follows.
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(2)A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
Mental impairment is defined in s 1 to mean intellectual disability, mental illness, brain damage or senility.
Sections 28(1) and (2) provide as follows:
(1)Section 27 applies to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means.
(2)Section 27 does not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not.
The proper construction of s 28(1)
I agree with Buss P's construction of s 28(1) set out at [134] ‑ [135] and [142], and with his Honour's reasons in that regard. In my view, as his Honour explains, this construction flows from the plain meaning of the provision, read with s 27. It is also supported by a consistent stream of authority, including, in the High Court, The Queen v Falconer,[42] and in the appellate courts of Queensland, in R v Smith[43] and Re Bromage.[44]
[42] The Queen v Falconer [1990] HCA 49; (1990) 171 CLR 30, 44, 46 ‑ 47, 81.
[43] R v Smith [1949] St R Qd 126, 130.
[44] Re Bromage [1991] 1 Qd R 1, 8.
To construe s 28(1) as requiring a person whose mind is disordered by unintentional intoxication to prove that they lost one of the capacities referred to in s 27 by reason of a mental impairment, as distinct from by reason of the disordering of the mind by intoxication, would render s 28(1) superfluous. Such a construction is to be avoided. In any event, nothing in the text of s 28(1) supports, much less sustains, such a construction.
The proper construction of s 28(2)
I turn to s 28(2), with which the appeal is more directly concerned.
The parties' submissions as to the proper construction of s 28(2) are outlined in Buss P's reasons. In summary:
(1)The appellant invites the adoption of the construction of s 28(2) identified, but not adopted, by Derrick J in The State of Western Australia v Knock:[45]
(a)On its proper construction, s 28(2) provides only that if a person, at the time of doing the relevant act or making the relevant omission, is deprived of one of the capacities in s 27(1) by reason of intentional intoxication, then s 27(1) does not apply.
(b)Consequently, if a person can prove on the balance of probabilities that their mental impairment, as opposed to intoxication, was the substantial or material cause of the loss of one of their capacities specified in s 27(1), the fact that the person was intentionally intoxicated at the time of doing the relevant or making the relevant omission would not preclude them from relying on s 27(1).
(2)The respondent submits that a person who was intentionally intoxicated is precluded from relying upon the excuse in s 27(1) even if they can prove that it was a mental impairment and not the intoxication that caused them to be deprived of a relevant capacity.
[45] The State of Western Australia v Knock [2020] WASC 246[83].
As will be seen, I do not accept the first step of the appellant's submissions, but arrive at a construction substantially similar to the construction the appellant advances, by a different path of reasoning.
In my respectful opinion, the text of s 28(2) - '[s]ection 27 does not apply to ...' reveals that its purpose and effect is to disapply s 27 from cases that are within the ambit of s 28(2). Applying the presumption that a statutory provision is not to be construed in a manner that would render it superfluous,[46] the purpose and effect of s 28(2) is to disapply s 27 in circumstances where, but for s 28(2), it would or might otherwise be applicable. Specifically, its purpose and effect, in my opinion, is to disapply s 27 in the following situations:
(1)If a person intentionally causes themselves to become intoxicated,[47] and the intoxication triggers or exacerbates a mental impairment that deprives the person of one of the capacities in s 27, s 28(2) operates to exclude the application of s 27(1) to that person. In the hypothesised circumstances, but for s 28(2), s 27(1) would have applied to relieve the person of criminal responsibility, since its conditions of operation are satisfied: the person was in a state of mental impairment that deprived them of one of the relevant capacities.
(2)If a person intentionally causes themselves to become intoxicated, which triggers delusions, s 28(2) operates to exclude the person from relying on s 27(2) to limit their criminal responsibility. In these hyphothesised circumstances, but for s 28(2), s 27(2) would have limited the person's criminal responsibility to the extent applicable if the real state of things had been such as the person was induced by the delusions to believe to exist.
[46] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [71].
[47] Section 28 refers to both intoxication and stupefaction, but, for present purposes, reference to stupefaction does not assist or alter the analysis, so that limb of s 28 need not separately be discussed. I will use intoxicated as a shorthand for intoxicated or stupefied.
In my view, this construction also finds support in the textual differences between s 28(1) and s 28(2). Section 28(1) refers to a person 'whose mind is disordered by intoxication …'. By contrast, s 28(2) simply refers to a person who has become intoxicated. The additional italicised words in s 28(1) reflect its purpose and effect of extending the operation of s 27(1) in the manner explained by Buss P at [135], adopting what was said by Macrossan CJ in Smith. The italicised words are an element of the delineation of the additional species of case to which, by s 28(1), the operation of s 27(1) is extended in the manner set out in [135] of Buss P's reasons. The absence of these words from s 28(2) seems to me to reflect its different purpose of disapplying s 27(1) from a case to which it would otherwise have applied.
The construction of s 28(2) set out in [213] above is, in my view, also supported, albeit indirectly, by what was said by McPherson J (with whom Moynihan & Byrne JJ agreed) in Re Bromage. In that case, the mental condition of an accused person was referred to the Mental Health Tribunal constituted under the Mental Health Services Act 1974 (Qld). That Act provided that the Tribunal's duty was to inquire and determine whether the person was, at the time the alleged offence was committed, suffering from unsoundness of mind, the latter term being defined to mean 'that state of mental disease or natural mental infirmity described in s 27 of the Criminal Code'. Thus, as is explained in Re Bromage, the function of the Tribunal was not to determine the criminal responsibility of the accused.[48]
[48] Re Bromage (5 - 6), (10 - 11).
The Tribunal found that at the time of the alleged offence, the patient was deprived of the capacities described in s 27 as a result of the addition of alcohol to a mind that was or could properly be found to be a 'state of mental disease' within s 27 of the Code.[49] The appellant challenged the Tribunal's decision on the ground that the respondent patient's state of mind was the product, at least in part, of intoxication caused by voluntary ingestion of alcohol and that the effects of such intoxication should be excluded in deciding whether the respondent was suffering from unsoundness of mind. McPherson J rejected that argument, saying as follows:[50]
In my respectful opinion this approach to the matter does not address the point at issue. The question for the Tribunal is, as I have previously said, not whether a person in the position of the respondent is criminally responsible for the act or omission giving rise to the alleged offence. The Tribunal is not designed as a substitute for a jury at a criminal trial. Its sole function is to determine whether at the time of the alleged offence the 'patient' was suffering from unsoundness of mind as defined. The Tribunal is, as I have already pointed out, not even charged with the duty of determining whether such unsoundness of mind had any relation to the act or omission leading to the alleged offence. Much less is it fixed with the task of deciding whether the patient in fact did the act or made the omission, without which no offence could be found to have been committed.
The fundamental feature of the Mental Health Services Act is that the provisions relevant here, and in particular s. 33(1)(a), introduce into the legal system a quite novel regime, under which the Tribunal is expected to reach a decision that is independent of conceptions of criminal responsibility as defined in Ch. V of The Criminal Code. The provisions of the Chapter are relevant to such a decision only to the extent that they are adopted by the Act. The only relevant instance of such adoption is in s. 28A of the Act, which ascribes to the expression “unsoundness of mind” the meaning given by the Code to that state of mental disease or natural mental infirmity described in s. 27. As I have said, a consequence of so incorporating it is that decisions expounding those meanings under s. 27 of the Code are for the most part definitive for the purpose of s. 28A of the Act. For example, what was said by Philp J. in Dearnley v. The King suggests that delirium tremens may constitute a state of mental disease under s. 27 even though it is traceable to voluntary consumption of alcohol. But, except where they are explicitly or implicitly imported into the inquiry or determination required by s. 33(1)(a) of the Act, it would be wrong to assume that other provisions or conceptions of Ch. V of the Code are also incorporated. Among the provisions not explicitly so adopted are those in s. 28 concerning the non-exculpatory consequences of intoxication intentionally caused.
The result is, it seems to me, that in performing its function under s. 33(1)(a), the Tribunal is required to decide whether the patient’s state of mind at the particular time in question answers the description of mental disease or natural mental infirmity in s. 27 of the Code. In approaching that task it is to be borne in mind that the Code differentiates between such a state or condition and one that is nothing more than a mind disordered by intoxication or stupefaction by drugs or intoxicating liquor or by any other means. Such a disorder is outside the conception of mental disease described in s. 27. On the other hand, that conception in s. 27 does not affirmatively exclude consideration of the impact on an existing state of mental disease of intoxication intentionally caused. Section 28 does so, but that is a matter relevant to notions of criminal responsibility under Ch. V, with which the Tribunal is not concerned. (emphasis added)
[49] Re Bromage (9 - 10).
[50] Re Bromage (10 - 11).
In summary, McPherson J held that a capacity‑depriving mental disease induced by intoxication would not, by virtue of s 28, have had exculpatory consequences, but nevertheless such a mental disease was relevant to the Tribunal's function of determining whether there was mental disease of a kind described in s 27 of the Code and thus 'unsoundness of mind'.
To construe s 28(2) in the manner identified, but not adopted, by Derrick J in Knock[51], as summarised in [211](1)(a) above, would be to deprive the provision of any substantive operation. His Honour identified, as a plausible construction of s 28(2), that it provides only that if a person, at the time of doing the relevant act or making the relevant omission, is deprived of one of the capacities specified in s 27(1) by reason of intentional intoxication, then s 27(1) does not apply and the person cannot escape criminal responsibility for the act or omission. Reading s 27 alone - in other words, without regard to s 28 - a person whose intoxication deprived them of a relevant capacity could not rely on s 27 to avoid criminal responsibility. That is because s 27 encompasses those who are deprived of a relevant capacity by mental impairment. It does not assist those who are deprived of a relevant capacity by intoxication. Section 28(1) extends the protection of s 27 to those who are deprived of a relevant capacity by unintentional intoxication. Thus, a person who is intentionally intoxicated is not assisted by s 28(1). Consequently, a person deprived of a relevant capacity by intentional intoxication does not fall within s 27, including as extended by s 28(1), and that is so without any need for s 28(2).
[51] Knock [83].
For these reasons, I would not read s 28(2) as merely reinforcing the exclusion of a person who is intentionally intoxicated from operation of s 28(1). In my respectful opinion, the terms of s 28(1) themselves unambiguously effect that exclusion, as s 28(1) applies only to those whose intoxication is 'caused without intention on his part'. Rather, to my mind, s 28(2) disapplies s 27 in circumstances where it would have otherwise been applicable, in the manner set out at [213] above.
However, in my view, if a person intentionally became intoxicated and also, at the time of the relevant act or omission, suffered from a mental impairment depriving them of a relevant capacity, but the intoxication did not trigger and played no part in the person's mental impairment or their loss of a relevant capacity, then s 28(2) would not exclude s 27. I accept that, as the respondent contends, these hypothesised circumstances fall within the literal meaning of the words of s 28(2). However, when the language of s 28(2) is read in its context, having regard to its evident object and to the consequences of the wide construction,[52] in my view, s 28(2) is properly construed to operate in the manner described in [213] above, but without affecting a case of the kind described in the first sentence of this paragraph.
[52] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; Network Ten Pty Ltd v TNC Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 [11]; The Queen v A2 [2019] HCA 35; (2019) 269 CLR 507 [37], [124].
Thus, a person who is intentionally intoxicated could rely upon s 27(1) of the Code if, and only if, they establish, on the balance of probabilities, that (i) at the time of the relevant act or omission they were in such a state of mental impairment as to deprive them of a relevant capacity and (ii) the mental impairment and their loss of capacity was entirely independent of the person's intoxication. Although reached by a different path of reasoning, my conclusion as to the proper construction of s 28(2) mirrors that of Buss P - see [153], [154], [158] above.
Why there is no miscarriage of justice
For two reasons, the appellant has not established a miscarriage of justice arising from his plea of guilty.
First, for the reasons given by Buss P, in the present case, the evidence was incapable of discharging the appellant's onus to prove that his mental impairment at the relevant time was independent of his admittedly intentional intoxication.
Secondly, for the reasons Buss P explains at [165] ‑ [166], the appellant made a considered decision to plead guilty to avoid the consequences of being found not guilty on account of unsoundness of mind, namely, being detained in the psychiatric facility for an indefinite period. In those circumstances, applying the principles outlined by Buss P in [104] ‑ [108], any erroneous understanding about whether he had an arguable defence to the charges of murder does not give rise to a miscarriage of justice. Moreover, in the absence of evidence from the appellant himself, the evidence of Mr Perrella did not sustain an inference that the appellant had, and acted on the basis of, any identified erroneous understanding as to whether he had an arguable defence.
Conclusion
I would make orders to the effect stated by Buss P.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KW
Associate to the Honourable Justice Buss
31 JANUARY 2022
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