The State of Western Australia v AJ - [2008] WASC 215

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: THE STATE OF WESTERN AUSTRALIA -v- AJ [2008] WASC 215

CORAM: SIMMONDS J

HEARD: 30 SEPTEMBER 2008

DELIVERED : 30 SEPTEMBER 2008

PUBLISHED : 9 OCTOBER 2008

FILE NO/S: INS 65 of 2008

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecutor
AND
AJ
Accused

Catchwords:

Criminal law - Wilful murder or in the alternative murder - Plea of not guilty on account of unsoundness of mind - Criminal Code s 27

Criminal procedure - Determination of the issue of whether the accused is not criminally responsible for an act or omission on account of unsoundness of mind - By judge alone on the papers - Criminal Procedure Act 2004 s 93(1)

Criminal law and procedure - Opinion of psychiatrist that accused had such a state of mental impairment as to deprive him of the capacity to understand he ought not to have done the relevant act - Evidence of nature of killing and of what accused did and said before, at the time of and after the killing - Opinion in different terms of another psychiatrist on mental state of accused not long before the killing

Legislation:

Criminal Code (WA), s 1(1), s 27
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 3, s 24, s 26
Criminal Procedure Act 2004 (WA), s 93, s 126, s 146, s 147

Result:

Accused acquitted of charge of wilful murder on account of unsoundness of mind

Category: B

Representation:

Counsel:

Prosecutor: Mr A L Troy
Accused: Mr S D Freitag

Solicitors:

Prosecutor: Director of Public Prosecutions (WA)
Accused: Legal Aid (WA)

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

Hall v The Queen (1988) 36 A Crim R 368
Hone v The State of Western Australia [2007] WASCA 283
R v Bailey (1978) 66 Cr App R 31
R v Matheson [1958] 2 All ER 87; [1958] 1 WLR 474
R v Porter (1933) 55 CLR 182
The State of Western Australia v Hone [2007] WASC 64
The State of Western Australia v Iley [2006] WASC 107
The State of Western Australia v Wright [2007] WASC 80
Walton v The Queen [1978] AC 788

SIMMONDS J:

Introduction

The accused was charged with the offence of wilful murder, with the alternative of murder, to which he pleaded not guilty on account of unsoundness of mind.
Following his arraignment and pleas, submissions made to me by the prosecution and the defence and my consideration of the evidence before me, I found the accused not guilty of the charge of wilful murder on account of unsoundness of mind. I did this under the procedure in Criminal Procedure Act 2004 (WA) (CP Act) s 93. Having made that finding I made the custody order required by Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (CLMIA Act) s 21.
What follows are my reasons for decision. In them I begin by describing the procedural framework within which my decision was taken. I then set out the relevant law, and review the materials on which my decision was taken, before concluding with my finding as to unsoundness of mind from those materials and related matters.

The procedural framework for this decision

By indictment dated 29 May 2008 the accused is charged as follows:
(1)On 25 November 2007 at Beechboro [the accused] wilfully murdered [PJ].
(2)In the alternative to count (1) on the same date and at the same place [the accused] murdered [PJ].
PJ was the deceased's father. I will call him the deceased or father.
The matter was listed for trial by jury before me beginning on 30 September 2008.
CP Act s 93(1) provides as follows:
(1)If an accused pleads not guilty to a charge on account of unsoundness of mind and the judge is satisfied ‑
(a)that the only fact in issue between the accused and the State is whether, under The Criminal Code section 27, the accused is not criminally responsible for an act or omission on account of unsoundness of mind;
(b)that the prosecutor consents, and the accused does not object, to the judge doing so; and
(c)that it is in the interests of justice to do so,
the judge ‑
(d)may decide the issue referred to in paragraph (a) on any evidence and in any manner the judge thinks just;
(e)for that purpose, may ascertain any fact by the verdict of a jury or otherwise;
(f)may find the accused not guilty of the charge on account of unsoundness of mind; and
(g)if such a finding is made and a jury has been sworn to give a verdict on the charge, must discharge the jury from giving its verdict on the charge.
(2)Subsection (1) is in addition to and does not affect the operation of section 146.
CP Act s 146, provides as follows:
If under The Criminal Code section 27 an accused is found not guilty of a charge on account of unsoundness of mind, whether by a court of summary jurisdiction or by a jury's special verdict or by a judge under section 93(1) or in a trial by the judge alone, the court must record the finding.
The Criminal Code (WA) (Code) s 27 provides, in the part material to me, as follows:
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.
This provision needs to be read with Code s 1(1), 'mental impairment', which is as follows:
(1)In this Code, unless the context otherwise indicates ‑
…
The term mental impairment means intellectual disability, mental illness, brain damage or senility;
…
On the day of the commencement of the trial, 30 September 2008, the accused was arraigned and made the same plea to both charges, that he was not guilty of the charge on account of unsoundness of mind under Code s 27.
At that point, counsel for the prosecution stated the only issue between the accused and the state was as to the accused's soundness of mind at the time of the alleged offence. By this he indicated it was meant that there was no issue as to any other element of or defence to the offence of wilful murder as charged. Further, he stated that the prosecution consented and the defence did not object to my determining that issue on any evidence and in any manner I thought fit under CP Act s 93(1)(d) and s 93(1)(e).
For the purposes of such a determination, counsel for the prosecution tendered by consent the following:
•a statement of material facts dated 11 February 2008 (the statement of material facts);
•the papers in the prosecution brief, which is paginated from page 1 to page 403 (the papers), which include a letter dated 21 November 2007 (four days before the killing) to Dr Marcus Adonis of Gemini Medical Services which represents the report on the accused of Dr Laurence Blumberg, who is shown as a 'Consultant Psychiatrist' (the report of Dr Blumberg);
•the two video records with the prosecution brief, being one of an interview of the accused on 25 November 2007 and the other of a visit later that same day by the accused with police to the area near the place where the deceased was killed in search of clothing the accused said he had discarded (the video records);
•the report of Dr Stephen Allnutt, a consultant psychiatrist, dated 5 September 2008 (the report of Dr Allnutt) together with a curriculum vitae for Dr Allnutt (Dr Allnutt's curriculum vitae): the report of Dr Allnutt was obtained by the prosecution; and
•the report of Dr Barbara Zawadzki, shown as a 'Senior Medical Officer', and of Dr Peter Morton, shown as a 'Consultant Psychiatrist', dated 1 April 2008 (the 1 April 2008 report of Drs Zawadzki and Morton): this was a report addressed to the 'Presiding Magistrate, Stirling Gardens Magistrates Course [sic]'; there are three other copies of this report, respectively dated 19 February 2008, 14 March 2008 and 18 June 2008, in identical text, except that for the first Dr Morton's name appears first in the signature section of the report and for the first and the third they are addressed to 'The Honourable Judge, Supreme Court'.
I call the report of Dr Allnutt, the report of Dr Blumberg, and the 1 April 2008 report of Dr Zawadzki and Dr Morton, collectively, the medical reports.
A significant proportion of the papers, both of the video records, and the report of Dr Blumberg and the 1 April 2008 report of Drs Zawadzki and Dr Morton are referred to in the report of Dr Allnutt, together with other matter on which he drew.
In these respects, the report of Dr Allnutt states he had the opportunity to review what appear to be a number of the witness statements in the papers; medical records from four sources, records which appear to include some at least among the papers; a telephone conversation with Dr Blumberg, as the author of the report of Dr Blumberg; and a 'report dated 1 April 2008 by Dr Morton' which it was common ground before me was the 1 April 2008 report of Drs Zawadzki and Morton.
In these respects also, the report of Dr Allnutt refers to a 'clinical evaluation' with the accused Dr Allnutt conducted on 14 August 2008 at the facility to which the accused had been taken from prison for treatment, as well as a videoconference from Sydney with the accused on 1 September 2008; an interview Dr Allnutt conducted on 15 August 2008 with the de facto partner of the accused; and an interview Dr Allnutt conducted on the same day with the accused's mother.
Following the tender by counsel for the prosecution I have described counsel for the accused confirmed that under CP Act s 93 I could rely on the entirety of the material tendered in determining the charges in the indictment. He also made a formal admission pursuant to Evidence Act 1903 (WA) s 32 that the accused had killed the deceased. After some exchanges with me it became evident he did not regard himself or the accused as having made any formal admission pursuant to the provision as to any intention of the accused to cause the death of the deceased. However, counsel for the accused confirmed that the accused conceded through him that the only reasonable inference open on the materials tendered by the prosecution was that the accused had had that intention and no other evidence was proposed to be adduced on that or any other account.
Thus, counsel for the accused said, in his submission also the only fact in issue between the accused and the state was whether under Code s 27 the accused was not criminally responsible for the act by which the accused killed the deceased on account of unsoundness of mind.
On the basis of the submissions of counsel and my review of the material tendered by them both, I concluded that I was satisfied in the terms of CP Act s 93(1)(a), s 93(1)(b) and s 93(1)(c).
In particular, I concluded there was no issue between the accused and the state as to any element of or defence to the charge of the offence of wilful murder, including the element of the intention of the accused to cause the death of the deceased: see former Code s 278, which was in force at all times material to this prosecution. There was in this case no unqualified plea of not guilty as well as a plea of not guilty on account of unsoundness of mind (see CP Act s 126(4) on multiple pleas), and, although there was no formal admission under Evidence Act s 32 of the accused's intention, I was satisfied from the material tendered by consent by the prosecution and the position of the accused's counsel with respect to them that there was no issue between the accused and the state as to intention. Compare the position in The State of Western Australia v Hone [2007] WASC 64 [5] (Murray J) (plea of not guilty without qualification as well as plea of not guilty on account of unsoundness of mind). I have noted in relation to the former authority Hone v The State of Western Australia [2007] WASCA 283 (Hone (Court of Appeal)), to which I will have occasion to return in some detail below, and in which the Court of Appeal allowed the appeal from the conviction in that case. However, the Court of Appeal did not reach Murray J's determination that he was not satisfied CP Act s 93(1)(a) was met.
I further concluded that in the terms of CP Act s 93(1)(d) it was just I decide the issue of whether under Code s 27 the accused was not criminally responsible for his act which caused the death of the deceased on the material so tendered. Both counsel urged such a course on me, which was also that followed in The State of Western Australia v Iley [2006] WASC 107, to which I shortly return. I concluded it was not necessary to call any viva voce evidence, and in particular it was not necessary to have any or any combination of Dr Allnutt, Dr Blumberg, Dr Zawadzki or Dr Morton testify before me. I so concluded because of the position taken by both counsel and for the other reasons I will set out below, after I have described the evidence in the papers, the video records, and the medical reports.
I also concluded it was not necessary for me to ascertain any fact by a verdict of a jury. Again, both counsel urged this course on me. The factual matters in relation to the issue I described were ones as to which in my view there was no difference in the evidence of the sort to which the application of objective community standards by a jury might be desirable (see CP Act s 118(6)). The only significant apparent difference in the evidence for my purposes was in two of the medical reports. For reasons which will appear below I considered that that difference could be readily resolved without reference to such standards.
Having reviewed the material referred to with the assistance of submissions of counsel, and as I indicated at the outset of these reasons, I determined that the accused was not criminally responsible for his act which caused the death of the deceased. This determination was premised upon a determination that the accused did by his act cause the death of the deceased but did not involve a determination as to the accused's intention at the material time: see The State of Western Australia v Wright [2007] WASC 80 [19] (Miller J).
Had my determination as to criminal responsibility been otherwise, the question of intention would have arisen for formal determination. The matter would appear to be straightforwardly resoluble in accordance with the position of the defence in this case. However, it is not clear to me that in that case CP Act s 93 would have authorised me to proceed to determine the accused's guilt without having a jury sworn. That is because this case was not set down as a trial by judge alone and could not be so set down before me: see CP Act s 118(2). Compare the position in Iley, which had been set down as a trial by judge alone. I note that Iley was the only decision of this court that counsel or I could find where the court proceeded under s 93.
However, it is clear to me that having reached the determination as to the accused's criminal responsibility I did, I am under CP Act s 93 empowered to proceed to make a finding of guilt under s 147(2) without having to have a jury sworn.
Accordingly, I found the accused not guilty of the charge of wilful murder on account of unsoundness of mind, it being unnecessary to consider the alternative charge of murder. See Wright [46], [47] (Miller J).
I now set out the basis for my determination as the accused's criminal responsibility, beginning with the relevant law.

The relevant law

Counsel for the prosecution directed me to Hone (Court of Appeal). This decision contains a review of the law that is particularly appropriate to this case, as it concerned the issue under Code s 27, of whether the accused was in such a state of 'mental impairment' as to have deprived him of the capacity to know that he ought not to do the act which caused the deaths in that case. As will be seen it was such deprivation of that capacity on which the defence relied in this case.
Hone (Court of Appeal) concerned a finding after a trial by judge alone that the accused was guilty of two offences of wilful murder, notwithstanding what on appeal was determined to be the uncontradicted expert opinion of a psychiatrist that the accused was of unsound mind at the relevant time, such that he was 'deprived of the capacity to know that he ought not to do the acts at the time of each of the killings and that he was not able to reason at the time of those killings': [115] Miller JA. The other members of the court agreed with Miller JA's reasons: [15] Wheeler JA; and [1] Steytler P.
I particularly note the following, from [124] Miller JA, where his Honour states that neither a jury nor a judge sitting alone is bound to accept and act upon expert evidence, but adds that 'where there is no evidence to contradict that evidence, a verdict cannot be given contrary to it'. He states that the relevant principles are 'well summed up' in Hall v The Queen (1988) 36 A Crim R 368 (NSWCCA), in the opinion of Roden J, from which his Honour quotes at length: [124]. I particularly note the following from that quotation, where (36 A Crim R at 370 ‑ 371) Roden J refers to R v Matheson [1958] 2 All ER 87; [1958] 1 WLR 474, R v Bailey (1978) 66 Cr App R 31 (Eng CA) and Walton v The Queen [1978] AC 788 (PC) as follows:
In both Matheson and Bailey, manslaughter verdicts were substituted for jury verdicts of guilty of murder, on the basis that the medical evidence was 'all one way', and there was no other material which would justify its rejection. It was otherwise in Walton … The Privy Council was there considering a murder conviction where a diminished responsibility defence had been rejected. In the judgment, which was delivered by Lord Keith of Kinkel, there are observations that 'the jury were entitled to regard (the medical evidence) as not entirely convincing', and 'their Lordships have come to be of opinion that in all the circumstances the jury were entitled not to accept as conclusive the expression of opinion by Dr Bannister'. After a consideration of both Matheson and Bailey, the following statement of principle was made:
'These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the defendant before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence.'
The effect of those decisions is accurately summarised in Professor Smith's commentary on Walton in [1977) Crim LR 747 at 748:
'If the medical evidence is all one way and in favour of the accused and there is nothing in the facts and surrounding circumstances which could lead to a contrary conclusion, then a verdict against the medical evidence cannot be sustained. In the present case there were facts and circumstances in addition to the medical evidence and the jury was therefore entitled to reject that evidence'.
Further, in Hone (Court of Appeal) Miller JA referred at [125] to the following from another member of the Court of Criminal Appeal in Hall, 380 ‑ 381 (Allen J), which goes to assessing the medical evidence:
In assessing medical evidence a multitude of factors must be taken into account ‑ including the standing of the expert, whether he expresses his opinion with conviction or with hedging, whether the opinion expressed in its nature seems reasonable or fanciful, whether it incorporates assumptions not founded upon the evidence given, and whether the evidence given, upon which the opinion is based, is to be believed. It is clearly settled that it can be unreasonable for a jury to reject medical testimony: Walton; Chester [1982] Qd R 252; 5 A Crim R 296.

As will become apparent the focus in the hearing before me was principally upon the report of Dr Allnutt, which contains the conclusion that the accused at the material time was in such a mental state as to be deprived of the capacity to know he ought not to do the act which caused the death of the deceased.
I took from the quotations above that I should at the least consider in this case the evidence other than that described in the report of Dr Allnutt as to 'the nature of the killing, the conduct of the accused before, at the time of and after it and any history of mental abnormality', in addition to the standing of Dr Allnutt, the terms of his report, whether it incorporates assumptions not founded upon the evidence the report refers to and whether the evidence which the report refers to is to be believed, together with any other report going to the accused's mental state at or about the relevant time.
Of course, I should do so by reference to the onus and standard of proof in relation to the issue under Code s 27. The onus of proof on that issue is on the defence, and the standard is that of proof on the balance of probabilities: Criminal Law in Western Australia [s 27.10] (accessed 14 September 2008).
I proceed now to consider the evidence in this matter accordingly.

The nature of the killing

I here set out an account drawn from the statement of material facts.
At about 2.30 am on the morning of Sunday 25 November 2007 the deceased aged 61 years was in the living room at his home address with his 62 year old wife.
The accused, aged 34 and the son of the deceased, had gone to the deceased's address to confront him over issues involving sexual abuse of himself and his 5‑year‑old daughter.
The accused had turned off the power supply to the house at the meter box and attempted to gain entry to the house by smashing a sliding glass door without success.
The accused had then smashed a rear window and climbed through to gain entry. The deceased upon hearing the smashing glass had walked to the rear of the house to investigate. There he was confronted by the accused. A physical altercation ensued in which the accused forced the deceased to the ground. The accused placed his forearm across the throat of the deceased. The accused yelled at the deceased to admit that he had sexually interfered with him. The accused pushed his elbow into the throat of the deceased until he stopped breathing. The accused left the scene on foot and disposed of his clothing in bins and drains nearby. The deceased's wife alerted a neighbour who called the police. Upon attending the deceased was located in the rear of the house showing no signs of life. The accused was located several hours later at his home address.
A post mortem examination was conducted on Tuesday 27 November 2007 at the state mortuary where a cause of death was given as 'undetermined - pending neuropathology'. On Monday 11 February 2008, after further medical investigation, the cause of death was revised to 'injury consistent with blunt impact injury and neck compression'.

The conduct of the accused before, at the time of and after the killing

The evidence in the papers and the video records is to the following effect.
Until a few days before 25 November 2007, the accused had lived with his parents at their address. He had moved there from the house he had been sharing with his de facto partner. She was the former partner of an elder brother of his. The accused had had two children with her, a boy then aged 3 and a girl then aged 5. I call them the 3‑year‑old and the 5‑year‑old respectively. She had had a son then aged 11 with the accused's elder brother. I call that son the 11‑year‑old.
The accused had moved out of the house to that of his parents because of a breakdown in relations with his de facto partner brought on by his increasing pre-occupation with thoughts that she was having an affair with the 11‑year‑old and that his 5‑year‑old might be involved.
During this period he returned to the house he shared with his de facto partner. He had installed or had moved to install cameras in it. He had moved in with a friend, but returned to his parents' home from time to time. This was for the purpose of visits with the three children who as a result of a court order could visit with him but only when the visit was under the supervision of his mother.
A few days before 25 November 2007 he had again moved out of his parents' house. This occurred after arguments he had had with his father about the accused's beliefs his father had put his tongue in the ear of the accused's daughter and that his father was continuing to engage in inappropriate behaviour towards her. The accused was at the same time voicing suspicions that his father was having a relationship with his de facto partner.
At about the same time the accused was voicing his belief his father had sexually abused him as a small boy. At the age of three or four he had voiced such a belief to his mother. He had repeated this belief to her subsequently, but had ceased doing so when in 1981 he had moved to Australia with her. He had again voiced the belief, this time to his de facto partner, in September or October 2007, but had not voiced it again to her until the day before the killing.
Two days before the killing, on 23 November 2007, the accused had had an argument with his father about what the accused believed was the conduct of his father towards the accused's daughter, and what he was continuing to do with her, and about what the father had done to the accused's half sister. The following evening, that of 24 November 2007, he had rung his mother on her mobile and in the course of the conversation told her she was immoral because she had had sex with her eldest son.
The accused's mother also believed that his father had put his tongue in the ear of the accused's daughter some three years previously. She had informed the accused of that belief, at which he had become extremely angry.
In the morning of 24 November 2007, the accused took the three children back to the house of his de facto partner. This had followed an incident which the accused believed he had witnessed, and which had led to a strong exchange with the victim. That incident had involved the victim that morning trying to have the 5‑year‑old go into the deceased's room. After taking the three children to the house of his de facto partner, the accused had returned to the home of his parents, and was very angry there, with the victim, and with his mother for staying with him.
On the afternoon of 24 November 2007 the accused was at the house of his de facto partner. During that afternoon he talked with her about the deceased putting his tongue in the ear of the 5‑year‑old, and about the accused having been 'raped' by the victim. The accused was very agitated, and said that the deceased would 'die'. In the evening his de facto partner brought him some marijuana which he smoked. Later she heard him speaking on the telephone with some one to whom he described being raped, about the deceased while naked trying to drag the 5‑year‑old into the deceased's room, and about the accused confronting the victim that morning about being raped. She heard him crying out that the deceased should not hit him.
He left the house at about 1.45 am on 25 November 2007 by car.
The accused broke into his parents' home, confronting the deceased and holding him to the ground with an elbow at his throat, as a result of which the deceased died. I return to the accused's understanding of the killing shortly.
Following the killing, the accused had fled the house, as police arrived. He disposed of the clothing he had been wearing. He walked back to the house of his de facto partner, arriving at about 6.15 am on 25 November 2007. Police were there. He said to them he was handing himself in, he was not a violent man, he had done 'it' and he had decided to 'sacrifice' his 'freedom' for the 'safety' of his children. While in custody in the house he was heard to say the deceased had raped him, the deceased had deserved what he got, the accused just wanted the deceased to 'admit it' but the deceased could not do that, and that he would not let the deceased rape the accused's children the way the deceased had raped him.
Between 7.20 am and 9.24 am on 25 November 2007 the accused was interviewed by two police officers. The interview was video recorded. This was the video record of interview referred to in the report of Dr Allnutt. It is one of the two video records: I call it the video recorded interview.
In the video recorded interview the accused admits that at 1.30 am he drove from the house of his de facto to his parents' home, planning to confront the deceased, to have him admit he had raped the accused, and that he had put his tongue in the ear of the 5‑year‑old and touched her in the region of her genitals. There he switched off the power in case the deceased came at him with a knife. He first tried to gain entry to the deceased's room through an opening for an air conditioner, then he threw himself at a glass sliding door, before he finally broke into the house through a rear window.
There the deceased came at him with a chair, which was broken over the accused's head. The accused took the deceased to the ground where he used an arm to hold him down, moving the elbow on to the deceased's throat. The accused told the deceased to make the admissions referred to and the accused would let him live. The accused intended that the deceased would make the admissions, both then and at a police station.
The deceased did not make the admissions. The accused stayed on top of the deceased with his elbow in the position described until he knew the deceased had passed away. The accused did not want to take the victim's life, but he wanted to protect his children from a 'sexual predator', and was prepared to sacrifice his freedom for theirs so as to protect them. He said they would be safe with his de facto partner. He did not go to and into his parents' home that night intending to kill the victim. But when the deceased refused to make the admissions the accused had sought of him, the accused concluded the victim had shown he would do 'it' to the accused's children. Thus, the only way to protect the accused's children was for the accused to take the deceased's life. He had 'no choice' in the matter.
The accused refers in the interview at a number of points to having seen the deceased while 'naked' on the morning of Saturday 24 November 2007 at about 7 am beckoning to the 5‑year‑old to come into the victim's bedroom. The accused refers to no one being 'there' for him when he was abused repeatedly, over a lengthy period, in his 'own' bedroom, by the deceased.
At a number of points during the interview, particularly when he was asked for detail about what happened after the deceased came at him with a chair, the accused appears to become very emotional, sobbing and at one point going under the interview table. He repeatedly says he was ashamed of what he did, and at a number of points indicates he could not bear to see his mother after what had happened. At one point he says it was 'very painful' to see the deceased 'pass away at my hands'. He also says 'I abhor' both 'violence' and 'sexual misconduct' because 'it' was done to him, and at another point that he did not wish to become like the deceased. The accused further says that, if there were a creator in heaven, the accused wishes such a creator would forgive him.
The interview had to be halted after about an hour when the accused went, sobbing, under the interview table, before being resumed about half an hour later.
The accused at most points in the interview appears to be lucid and anxious to 'clarify' for the interviewers what had happened, and where, in the house. He draws a number of plans of the house to achieve this. At a number of points he apologises for not being 'composed'. He refers to his 'photographic memory' by which he is able to provide the clarifications he believes the police require.
There is also an undated letter from the accused to the 11‑year‑old, evidently written after he was taken into custody, in which he states he is the descendant of a chief in New Zealand, by virtue of which he is himself also a chief and required to be tried in 'an international court of law', 'subject' to his 'tribal laws'.
There is also a letter, dated 27 November 2008, to the 5‑year‑old from the accused in which he states that 'Pop has gone away so you won't have to feel yucky anymore and the bad dreams and monsters will go away'.
There is another letter, also dated 27 November 2007, to his de facto partner in which he states, among other things, that the victim had raped the accused's half-sister; that he had 'found out yesterday by the Midland detectives' that the victim was not his real father, which was why 'they cremated his body' (apparently, that of the deceased); and that his elder brother had told him just before he was imprisoned that he was the accused's father, not his brother. The accused states that is why he could not accept his daughter 'being a victim to a pair Pedophile [sic] predators'.
There is also in the prosecution brief a transcript of a video record of an interview with the 11‑year‑old in which he denies any sexual abuse by his mother and recounts the accused's severe mood shifts when he talked about his and his siblings being sexually abused by their father.

The accused's history of mental abnormality

There is among the accused's medical records in the papers what appear to be clinical notes which include that his partner in mid-November 2007 in the context of a 'domestic issue' said he was 'suffering a psychosis', which led to him being referred to Dr Blumberg.
The papers also include, as I have said, the report of Dr Blumberg which is three pages long and appears to have been prepared in the context of the 'domestic issue'. In the report of Dr Blumberg he says that the accused had told him of a number of incidents that had led to what Dr Blumberg describes as a 'decompensation in his mental state' and a suicide attempt on 10 August 2007. Those incidents were his discovery on 10 June 2007 of the 11‑year‑old in bed on top of the 5‑year old. He subsequently became suspicious that there was 'something going on' between his de facto and the 11‑year‑old. He acknowledged he had no proof, but 'could sense something wrong'. The accused also referred to an accident at work on 13 June 2007 when his left leg sustained burns requiring surgery and skin grafting.
Dr Blumberg also reports that the accused had told him of first coming into contact with psychiatric services in 2001 after the death of his brother, who had hung himself in prison. He had undergone a six month course of grief counselling with a psychologist.
The accused also said he had gone to a workers' compensation psychologist after the work accident on 13 June 2007, when the accused was suffering panic attacks and anxiety symptoms.
Dr Blumberg further says that the accused reported feeling 'stressed out and overwhelmed' at the time of the review Dr Blumberg conducted. However, the accused said he was sleeping normally, had a normal appetite, stable weight and reasonable energy levels. He was motivated, and enjoying pleasurable activities and spending time with his children. He referred to reasonable concentration and memory functioning. He denied any suicidal, self‑harm and violent thoughts. However, he also described a number of ongoing anxiety symptoms and was anxious and concerned about his children's future, his future and the safety of his children. He no longer experienced any panic attacks.
Dr Blumberg observes there was no evidence of 'any psychotic phenomenology, manic symptoms, or OCD symptoms', and the accused denied any paranoia, including 'delusions of persecution, thought interference or passivity phenomena' (page 2).
Dr Blumberg's diagnosis was that the accused as at the time of his report of 21 November 2007 fulfilled 'the criteria of an adjustment disorder with anxiety symptoms' (2). He had
no past history of violence or previous psychiatric admissions, and is currently not on any psychotropic medication. He has a history of a past significant failed suicide attempt where he described feeling overwhelmed and described 'everything being too much to cope with'. He stated on numerous times during today's review that his children were his life and he has taken the initiative and reported these alleged allegations to the Child Protection Unit as he was concerned for his children's safety and wellbeing (3).
The 'alleged allegations' appear to be of the sexual misconduct Dr Blumberg reports the accused describing to him.
I will return to this report below. I turn now to the report of Dr Allnutt. It is substantially longer than the three page report of Dr Blumberg, being 23 pages in length.
I begin my account of the report of Dr Allnutt by describing his qualifications and experience.

The report of Dr Allnutt: his standing and qualifications

From Dr Allnutt's curriculum vitae the following appears.
Dr Allnutt became a Fellow of the Royal College of Physicians of Canada in 1994 and a Fellow of the Royal Australian and New Zealand College of Psychiatrists in 2001. He has had 14 years full time experience as a forensic psychiatrist. He has testified as an expert witness in higher and lower courts in criminal and civil cases in Canada, New Zealand and Australia. His current positions include that of conjoint senior lecturer in psychiatry at the University of New South Wales, Clinical Director of the New South Wales Community Forensic Mental Health Services (since 2005) and a member of the New South Wales Mental Health Review Tribunal (since 2007).
From this material, I consider that Dr Allnutt is fully qualified to express the opinions he does in his report.

The terms of the report of Dr Allnutt

I have already referred to the matters listed in the report of Dr Allnutt on which he drew. In this section of my reasons, I will review the assumptions on which his opinion as to the accused's mental state at the time of the offence rests. I will consider the extent to which those assumptions rest upon the evidence given in the report and are congruent with the evidence I have previously referred to.
However, first I will set out Dr Allnutt's opinion.
If it is accepted that the beliefs that his de facto was having a sexual relationship with her 11‑year‑old son was delusional then it is reasonable to conclude that the belief that the Deceased had sexually abused him and had intention to sexually abuse his 5 year old daughter, K, (even if there was some elements of fact in this), still formed part of a delusional belief system and thus part of a mind dysfunctional in its capacity to reason about this. These beliefs were held with significant conviction to the extent that they derived from a chronic psychotic disorder causing delusions. Most psychiatrists would agree that a delusional disorder would meet criteria required of the legal definition of a 'mental impairment'.
In my opinion, his mental impairment was of a nature and quality that it impacted on his reasoning ability. Psychosis is a mental illness that impacts on a person's capacity to make rational interpretations of the person's environment and to appreciate that irrational interpretations are irrational (lacking insight) and delusional beliefs are pathognomic of psychosis.
His mental impairment was unlikely to have been of a severity that it deprived him of the capacity to understand what he was doing. The evidence, in my view, supports the view that he had capacity to decide to go to the Deceased's house to confront him and to understand that utilising force could in some way have the Deceased comply to his demands. I believe he had capacity to understand that by exerting some form of physical force on the Deceased he would potentially cause harm to the Deceased.
I believe that due to mental impairment he was significantly compromised in his capacity to know that he ought not to do the act. The evidence supports the conclusion that in the material time leading up to the alleged offence the Defendant was preoccupied with his belief that his daughter was under serious threat by the Deceased. This belief was compounded by another belief that his de facto was having sex with his 11 year old nephew and that he himself had been a victim of sexual assault by the Deceased. It is possible that to degree interactions with his mother and the knowledge that the Deceased had been in some way inappropriate with his sister added to his conviction in that this provided more tangible proof for him. He was highly emotional and anxious about his circumstances at the material time. He probably regarded his actions in confronting the Deceased, in the manner that he did at the material time of the alleged offence, as justified; because he was protecting his daughter from victimisation by the Deceased. This justification was derived from a delusional mind. I believe that while he maintained capacity to know the legal wrongfulness of his actions, that is, I believe he maintained capacity to understand that the behaviour that he was engaging in was potentially illegal and could result in criminal sanction (this is evident in the witness statements in which he stated that he was sacrificing himself to save his daughter); he was deprived of the capacity to reason about the moral wrongfulness of the matter with a moderate degree of sense and composure. That is, that he felt morally right and delusionally justified in acting as he did because he saw himself as acting a father protecting his daughter from a sexual predator. In this sense I am of the view that he was deprived of the capacity to know that he ought not to do the act.
While I accept that the issue is marginal, I am less inclined to conclude that he was deprived of the capacity to control his actions. In my view, while he was driven by strong emotional feelings the evidence suggests to me that he was in control of his actions and capable of making decisions; and that had the Deceased complied to his wishes he would likely have had capacity to resist applying further pressure to the Deceased's neck if he had chosen to do so (21 ‑ 22).

It can be seen that Dr Allnutt is of the opinion it is only possible to arrive at a determination of incapacity in respect of what is the third of the three capacities from Code s 27, referred to. That is the 'capacity to know that he ought not to do the act or make the omission' which brought about the killing.
I should note that it was my understanding that counsel for the accused rested his defence on this opinion, and that counsel for the prosecution did not take issue with it. It can be seen that this opinion rests on the fundamental assumption that the accused had a 'belief system' about sexual abuse within his family that was at least in part the product of delusions and that was held with such 'conviction' that the belief system should be seen as derived from a 'chronic psychotic disorder'.
That disorder was of such a 'nature and quality' that it 'deprived him of the capacity to reason about the moral wrongfulness' of causing the death of the victim 'with a moderate degree of sense and composure'. That description of the reasoning impairment caused by the disorder referred to echoes the language used by Dixon J as he then was in his charge to the jury when his Honour was sitting in the original jurisdiction of the High Court and reported in R v Porter (1933) 55 CLR 182, 189 - 190. This is language which was quoted with approval in Hone [134] (Miller JA). That paragraph in Hone reads in full as follows (I have emphasised the language echoed in the report of Dr Allnutt):
The expression 'knew that what he was doing was wrong' imports a good deal more than the difference between right and wrong 'in the abstract'. Dixon J pointed this out in R v Porter:
'I have used the expression 'know,' 'knew that what he was doing was wrong.' We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by 'wrong? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged. In considering these matters from the point of view of fact you must be guided by his outward actions to a very large extent. The only other matter which can help you really is the medical opinion. I think the evidence may be described as his outward conduct and the medical opinion. It is upon this you must act. The medical opinion included explanations of the course of mental conditions in human beings generally (189 ‑ 190). (emphasis added)
The report of Dr Allnutt refers in some detail to matter emerging from his interviews with the accused, his de facto partner and his mother, as to the accused's beliefs about sexual abuse of the 11‑year‑old by his mother, about sexual abuse of himself and his half-sister by the victim, and about sexual dealings between his mother and one of his brothers, about inappropriate dealings between the 11‑year‑old and the 5‑year‑old, about an affair between the victim and the accused's de facto partner and about the victim's inappropriate behaviour and intentions towards the 5‑year‑old. There is other evidence of beliefs of that kind referred to in the papers and video records, as the account of that evidence above indicates.
That other evidence also tends to confirm the assumptions in the report of Dr Allnutt as to the degree of the conviction of the accused as to that sexual abuse, so far as it involved the victim, and the impact of that conviction on the accused's view of why the encounter he had with the victim in the early hours of 25 November 2007 took the fatal turn that it did. I refer here particularly to the letters written after he was taken into custody from the accused to the 5‑year‑old and to his de facto partner.
In addition the report of Dr Allnutt itself contains other evidence which does not appear in the papers or the video records and which is both believable and consistent with the description of the accused in the report I have quoted at length. That other evidence is of his behaviour not long before he left the house of his de facto at 1.45 am on 25 November 2007, and of his condition in prison that led to his transfer to a facility for treatment at which on 14 August 2008 Dr Allnutt conducted his clinical evaluation of the accused.
As to that behaviour, Dr Allnutt says that the accused told him that the evening before the killing he 'prepared' himself to go over to the house of his parents. He said by this meant he prepared himself 'spiritually'. He said he had 'climbed up a tree naked and began barking like a dog' and
His native tribe were dog spirits he explained. He was trying to set his spirits free on the Deceased but also hold on to them for when he got there (7).
Dr Allnutt says the accused's de facto told him that at about 9.30 pm that night she had found him outside calling to the 11‑year‑old, apparently while the accused was up a tree and saying he was invisible.
As to the condition of the accused that led to his transfer to a facility for treatment, I note the following account from the report of Dr Allnutt, referring to the 1 April 2008 report of Drs Zawadzki and Morton:
There was a report dated 1 April 2008 by Dr Peter Morton. He noted that he [the accused] had been transferred by Hakea Prison on 5 December 2007 under Section 27 of the Prisons Act and Section 29 of the Mental Health Act to Franklin Centre for assessment and treatment. At that time he was aggressive and paranoid towards prison officers. He believed he was at risk of being murdered by them; he had covered the camera in his cell with toilet paper; he hid food in the toilet believing it was poison; he described beliefs that inappropriate sexual relationships involving his children and his mother and he provided an account of the alleged offence relatively similar to the one he provided to me. Dr Morton noted a history of usage from age 17 which was occasional and irregular of cannabis, a history of amphetamine abuse but none since May 2007. He diagnosed him with a delusional disorder paranoid type and provided a differential diagnosis including schizoaffective disorder. He concluded that his mental condition was such that he would have been suffering from a mental illness at the time of the alleged offence to the extent that he would have been unable to determine that what he was doing was wrong. He also concluded that he was not able to control himself (18).
From my examination of the 1 April 2008 report of Drs Zawadzki and Morton, I consider this account of it in the report of Dr Allnutt to be accurate and sufficient for my purposes.
In my view the opinions of Dr Allnutt in his report are, in the terms of Hall 380 ‑ 381 (Allen J) as quoted in Hone [125] (Miller JA) above, expressed 'with conviction'; in their nature they appear to me to be 'reasonable'; they appear to me to incorporate assumptions 'founded upon the evidence given'; and, by reference to all of the other evidence in this case, that evidence referred to by Dr Allnutt is, it appears to me, 'to be believed'. They are also wholly consistent with the opinions expressed in the 1 April 2008 report of Drs Zawadzki and Morton, except as to the accused's capacity to control his actions. I did not understand counsel for the accused to be relying upon any lack of capacity of the accused in that respect.
There is, however, the matter of the report of Dr Blumberg, with which the report of Dr Allnutt also deals, to be considered. It will be recalled the report of Dr Blumberg does not diagnose the condition of the accused, as at the date (21 November 2007, four days before the killing) Dr Blumberg says he saw him, as Dr Allnutt (or Drs Zawadzki and Morton) did. That is, in the terms of the article by Professor Smith commenting on Walton as quoted in Hone [124] (Miller JA) above, on the face of it this is not a case where 'the medical evidence is all one way'. I turn to that matter now.

The matter of the report of Dr Blumberg

I have already dealt at some length with the terms of the report of Dr Blumberg. I have noted he makes no diagnosis of psychosis, delusional disorder or distorted moral reasoning. Indeed, at one point in his report he describes the accused's presentation to him in Dr Blumberg's 'mental state examination' in terms that 'there was no formal thought disorder'.
However, I have noted the evidence as to the way in which the accused's presentation as a person anguished over what he believed was a history of family sexual abuse appears to have varied over the time leading up to the killing.
I have also noted that the report of Dr Blumberg rested only on a review of the accused himself, without the further matter (documentary, video and interviews with others, matter which also related to the time of the killing and its aftermath), on which the report of Dr Allnutt also rested. In this connection I further note the following, at the end of the report of Dr Blumberg:
I am more than happy to provide a more detailed comprehensive psychiatric report and review him again if the need arises (3).
This more limited basis for the report of Dr Blumberg and its language in the last respect is consistent with what appears in the report of Dr Allnutt as to his telephone conversation on 4 September 2008 with Dr Blumberg about the latter's report. The report of Dr Allnutt says this as to that conversation:
He stated that on the day that he assessed the Defendant he found his presentation to be bizarre. Overall he had limited information other than that obtained during the clinical interview and was considering seeking further information. While he was concerned about a delusion at the time he did not have enough evidence to conclude this and thus formulated, in the absence of more evidence that the Defendant was describing a very dysfunctional family environment to him. In retrospect, having regard to the events and information (provided by me) he stated that the Defendant's presentation at the time he saw me was, in light of that the new information, consistent with delusional beliefs as well (15).
The matter just quoted is, of course, hearsay. However, I consider that CP Act s 93(1) authorises me to rely upon hearsay evidence, at least where I consider it 'just' to do so. Given the matters in the report of Dr Blumberg and all of the other evidence I have considered in this decision, I believe it is 'just' to rely upon the hearsay evidence I have described.
I should not conclude this section of my reasons without confirming that no criticism of the report of Dr Blumberg appears to me to emerge from the report of Dr Allnutt, and none is meant by these reasons. The report of Dr Blumberg was prepared on much more limited information, as at an earlier point in time, and, so far as I can tell, under different time constraints from those for the report of Dr Allnutt.

Whether I should call for testimony, and in particular testimony from Dr Allnutt and Dr Blumberg

I considered it followed from my review of all of the evidence in this case, as well as the position of counsel for the prosecution and for the accused, that it was not necessary for me to call for testimony from any of the psychiatrists, or indeed for any other testimony.

My findings

On the basis of the foregoing I found the accused at the time he acted so as to cause the death of the victim was, in the terms of Code s 27, 'in such a state of mental impairment as to deprive him of capacity to know that he ought not to do the act' and thus I found he was not criminally responsible for the acts referred 'on account of unsoundness of mind'.
I therefore found the accused not guilty of the charge of wilful murder on account of unsoundness of mind: see CP Act s 142(2) and Wright [46], [47] (Miller J).
These findings meant, as I stated at the hearing on 30 September 2008, that I was required to make and did make a 'custody order' in respect of the accused as required by the CLMIA Act s 21, read with sch 1. See Wright [48] (Miller J).
The general effect of such an order (CLMIA Act s 3 'custody order') is set out in s 24, which reads as follows:
24. General effect of custody order
(1)A mentally impaired accused is to be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Board, until released by an order of the Governor.
(2)A mentally impaired accused is not to be detained in an authorised hospital unless the accused has a mental illness that is capable of being treated.
(3)A mentally impaired accused should be detained in an authorised hospital only if the Board is satisfied ‑
(a)the accused has a mental illness requiring treatment;
(b)the treatment is required in order ‑
(i)to protect the health or safety of the accused or any other person; or
(ii)to prevent the accused doing serious damage to any property;
(c)the accused has refused or, due to the nature of the mental illness, is unable to consent to the treatment; and
(d)the treatment can only be provided satisfactorily in an authorised hospital.
(4)Subsection (3) is a directory provision.
(5)A mentally impaired accused is not to be detained in a detention centre unless the accused is under 18.
The 'Board' there referred to is the Mentally Impaired Accused Review Board (CLMIA Act s 3 'Board').
CLMIA Act pt 5, of which s 24 forms a part, sets out in more detail the effects of a 'custody order'.
The effect of the custody order, as I confirmed at the hearing on 30 September 2008, is that the accused was remanded in such custody.