The State of Western Australia v Bull
[2023] WADC 131
•3 NOVEMBER 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BULL [2023] WADC 131
CORAM: BOWDEN DCJ
HEARD: 30 & 31 OCTOBER 2023
DELIVERED : 3 NOVEMBER 2023
FILE NO/S: IND 224 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
COLIN DONALD BULL
Catchwords:
Criminal law - Trial by judge alone - Possession of child exploitation material - Unsoundness of mind - Section 27 Criminal Code - Dissociative identity disorder - Conflicting expert reports
Legislation:
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Result:
Verdicts of guilty on all counts
Representation:
Counsel:
| The State of Western Australia | : | Mr J C Walley SC |
| Accused | : | Mr F Butafa |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Frederick Butafa Solicitor |
Case(s) referred to in decision(s):
Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193; (1993) 68 A Crim R 349
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389
Minniti v The Queen [2006] NSWCCA 30; (2006) 159 A Crim R 394
NAD v The State of Western Australia [2013] WASCA 2
Parker v The Queen (Unreported, WASCA, Library No 960740, 20 December 1996)
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
Piccolo v The State of Western Australia [2007] WASCA 149
R v Baden-Clay [2016] HCA 35
R v Kotzmann (No 2) [2002] VSCA 21; (2002) 128 A Crim R 479
R v Merritt [1999] NSWCCA 29
R v Porter [1933] HCA 1; (1933) 55 CLR 182
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573; (1990) 51 A Crim R 181
The State of Western Australia v Herbert [2017] WASC 101
BOWDEN DCJ:
Mr Bull is charged with eight counts of possession of child exploitation material (CEM) on 2 December 2019 at Craigie. Each count relates to images located on different devices and is particularised as follows:
Count 1:
Electronic images and videos on a Casecom Halconee desktop computer.
Count 2:
An electronic image and videos on a HP Pavillion desktop computer.
Count 3:
An electronic video on a Toshiba Satellite laptop computer.
Count 4:
An electronic video on an Asus notebook computer.
Count 5:
Electronic videos and an image on a WD My Passport external hard drive.
Count 6:
Electronic videos and images on another WD My Passport external hard drive.
Count 7:
Electronic images on a compact disc.
Count 8:
Electronic videos on another compact disc.
Mr Bull has pleaded not guilty to each count and raises the question of unsoundness of mind. He says at the time of each alleged offences he was in such a state of mental impairment as to be deprived of the capacity to control his actions and therefore not criminally responsible pursuant to s 27 of the Criminal Code (WA).
Mr Bull says the possession of CEM occurred when his alter‑ego or another personality known as 'George' was possessing or controlling his mind and therefore he did not have the capacity to control his actions in downloading and possessing the CEM. This condition colloquially known as split‑personality is more correctly described as a dissociative identity disorder.
Trial by judge alone
An order that the trial be heard by judge alone was made by her Honour Chief Judge Wager on 21 September 2023 pursuant to s 118 of the Criminal Procedure Act 2004 (WA).
The trial principles
As a matter of law the following general principles apply.
Mr Bull is presumed to be innocent of each charge.
He is not required to prove his innocence or to give or call evidence in his defence.
The burden of proving his guilt rests on the State.
The State discharge its burden by proving each and every element of the charge being considered. Proving some elements but not others does not suffice. Mr Bull is to be acquitted if there is a reasonable doubt as to any element of the charge being considered.
The standard of proof is proving the elements of the charge is proof beyond reasonable doubt. That is the heaviest burden of proof known to law. Establishing that is more likely than not that he committed the elements or it is possible that he did or that it is probable that he did does not suffice. Proving strong suspicion that he did does not suffice.
The State do not need to prove beyond reasonable doubt each and every thing that their witnesses say but they must prove beyond reasonable doubt each and every element of the charge being considered.
The verdict must be based solely on the evidence presented at the trial. The evidence consists of the witnesses' answers to questions under oath or affirmation, the exhibits, the agreed facts, formal admissions and my physical observations of the witnesses. Counsel's questions, submissions, comments and observations are not evidence.
Any publicity about Mr Bull or anyone or anything connected to this case must be ignored. I am not aware of any such publicity.
As a matter of law each charge must be considered separately, and a separate verdict is required in respect of each charge.
A verdict of guilty or not guilty on one count does not necessarily mean that the same verdict is reached in respect of any of the remaining counts.
The verdict must be reached without prejudice, sympathy, speculation or conjecture and based solely on the evidence.
During the trial defence counsel led evidence that Mr Bull had pleaded guilty to these charges at one stage. This is not evidence of Mr Bull's guilt of any charge and is not evidence which supports the State's case or adds weight to the State's case and cannot be used by me to say that he is guilty of any of the charges or that he is the type of person who is likely to have committed such charges. As a matter of law no adverse inference can be drawn against Mr Bull as a result of that evidence.
The only relevance of that evidence is that it may explain why Mr Dunlop's first report did not specifically address the question of s 27 of the Criminal Code in terms that one would otherwise have expected if the report was prepared to solely address that issue.
The court must not speculate or guess about matters or look for theories not supported by the evidence.
I may draw inferences from proven facts. An inference is a logical deduction from the facts that have been proven. In drawing inferences I do not consider the facts in isolation but consider the combined weight of the facts which I find proven.
In a circumstantial evidence case such as this I can only be satisfied of guilt if the combined weight of the circumstantial evidence establishes beyond reasonable doubt that only one inference can be drawn, and that inference is that Mr Bull is guilty of the charge being considered: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573; (1990) 51 A Crim R 181.
Guilt must not only be a rational inference but the only rational inference that the circumstances enable me to draw: R v Baden-Clay [2016] HCA 35. The State must exclude all reasonable hypothesis consistent with innocence before I could convict on the charge being considered: R v Baden-Clay.
It is not for the defence to establish that some inference other than guilt can or should be reasonably drawn from the evidence or prove particular facts that would tend to support such an inference: Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 105; R v Baden-Clay [62].
The bare possibility of innocence should not prevent a finding of guilt if the inference of guilt is the only inference open to a reasonable man upon consideration of all the facts established by the evidence: Barca v The Queen; R v Baden-Clay; Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 661.
When looking to see if there is a hypothesis consistent with innocence, the hypothesis of innocence must be more than mere speculation or conjecture: R v Baden-Clay [55]. The hypothesis to be reasonable must possess some degree of acceptability or credibility and not be fanciful, impossible, incredible, not tenable, too remote or too tenuous: Parker v The Queen (Unreported, WASCA, Library No 960740, 20 December 1996); Piccolo v The State of Western Australia [2007] WASCA 149 [281].
The individual facts from which inferences are sought to be proven by the State do not have to be proven beyond reasonable doubt unless that individual fact is an element of the offence or an indispensable link in the chain of reasoning towards the inference of guilt: Shepherd v The Queen; Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521; Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193; (1993) 68 A Crim R 349; Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389.
The standard of proof of the individual facts which are not elements of the offence or indispensable links in the chain of reasoning towards the inference of guilt has been described as a 'different but unexplained standard': R v Merritt [1999] NSWCCA 29.
The court must find those facts proven before they can be considered in combination with other facts: NAD v The State of Western Australia [2013] WASCA 2 (the direction to that effect being approved by the Court of Appeal) or, put another way, the individual facts from which the inferences are sought to be proven must be proven to the court's satisfaction: R v Kotzmann (No 2)[2002] VSCA 21; (2002) 128 A Crim R 479; Minniti v The Queen[2006] NSWCCA 30; (2006) 159 A Crim R 394. A submission that such facts need to be proved on the balance of probabilities was rejected in R v Kotzmann (No 2) [492].
I may accept or reject the whole or part of the evidence of any witness.
It is the witness's evidence given on oath or affirmation at this trial which I must consider. If a witness has made a statement out of court such evidence is not evidence of the truth of what was said on those prior occasions unless the witness adopts that evidence or statement in this trial. Any inconsistency shown by a prior statement or evidence is only relevant to the assessment of the witness's credibility. Whether the inconsistency affects the witness's credit and, if so, how it affects the witness's credit is a matter entirely for me to determine.
In determining whether I am satisfied beyond reasonable doubt of Mr Bull's guilt I must not be concerned with the consequences of my verdict one way or another.
Mr Bull's evidence is to be assessed in the same manner as the evidence of any other witness. I can accept all that has been said. I can reject all that has been said. I can accept part of what he said.
Answers made by Mr Bull during the search video are evidence both for and against Mr Bull and the weight to be given to that evidence is a matter for me.
Subject to issues relating to the plea of unsoundness of mind dealt which I deal with later, if I accept Mr Bull's evidence in relation to not committing an element required to be proved by the State then he must be found not guilty. Even if I have difficulty in accepting his evidence but find what he said might be true or a reasonable doubt is raised in my mind on any element required to be proven by the State by any of the evidence adduced at the trial, Mr Bull must be found not guilty.
Subject to issues relating to the plea of unsoundness of mind dealt which I deal with later, even if I do not believe what Mr Bull had to say in respect of an element required to be proven by the State that does not mean by that fact alone I find him guilty. I put his testimony to one side and ask myself whether, based on the evidence that I do accept, the State has proven the elements of the charge then being considered beyond reasonable doubt.
Any alleged lies told by Mr Bull were not relied upon by the State in opening or closing as Edwards-type lies showing a consciousness of guilt and being evidence from which guilt could be inferred.
If I reach a conclusion that Mr Bull has deliberately lied that is not evidence of the guilt of Mr Bull of any of the charges. It is not evidence that it is capable of supporting an inference of guilt but it is a factor I may take into account in assessing the credibility of his evidence.
I should only accept evidence which I find to be truthful, that is, honestly given, reliable and accurate. An honest witness doing their very best to assist the court can be mistaken and inaccurate. A dishonest witness setting out to deliberately mislead the court can be convincing. The court must consider and assess the credibility or believability of each witness and the weight to be given to their evidence.
The evidence
The trial proceeded on 30 and 31 October 2023 at the Perth District Court.
The State called two witnesses: Officer Haisma from the Western Australian Police Service Digital Forensics Unit, and a psychiatrist Dr Hall. The defence called two witnesses: Mr Bull and the psychologist Mr Dunlop.
Six exhibits were tendered:
•Exhibit 1 were formal admissions made by Mr Bull pursuant to s 32 of the Evidence Act.
•Exhibit 2 was the search video.
•Exhibit 3 was a folder of technical crime documents.
•Exhibit 4 were medical reports of Mr Dunlop, Dr Hall and Mr Dunlop's curriculum vitae.
•Exhibit 5 was the discharge summary from the Joondalup Health Campus dated 20 February 2023.
•Exhibit 6 was the discharge summary from Sir Charles Gairdner Hospital dated 9 April 2020.
•Exhibit 7 was a diagram drawn for Mr Dunlop by Mr Bull.
Admissions made pursuant to s 32 of the Evidence Act
At the outset of the trial Mr Bull made a number of admissions pursuant to s 32 of the Evidence Act.
It is admitted that the computer and storage devices (the devices) referred to in each count were in Mr Bull's physical possession on 2 December 2019. Mr Butafa when questioned by the court said that this was intended to encompass legal possession as well, that is, the elements of knowledge, control or dominion and intent to have the CEM under Mr Bull's control or dominion (ts 145).
Subsequently in closing Mr Butafa 'walked back' the extent of that admission. To the State's credit Mr Walley SC did not take issue with this and accordingly the State are required to prove beyond reasonable doubt that the CEM on the device the subject of the count then being considered was in the legal possession of Mr Bull encompassing that he knew there was CEM on the device, that the CEM on the device was under his control or dominion and that he had an intent to excise control or dominion over that material.
It was also admitted that in relation to count 1, the Casecom computer, a total of 361 images and 110 videos of CEM were found on that device. I find a password was required to access the operating system of that device and Mr Bull provided that password to the police during the search.
In relation to count 2, the HP Pavilion desktop computer, it is admitted that 16 videos and 1 image of CEM were located on that device. I find a password was required to access the operating system and Mr Bull provided that password to the police during the search.
In relation to count 3, the Toshiba Satellite laptop computer, it is admitted that 1 video of CEM was located on that device.
In relation to count 4, the Asus X551M notebook computer, it is admitted that 1 video of CEM was located on that device. I find a password was required to access the operating system and Mr Bull provided that password to the police during the search.
In relation to count 5, the 750 GB WD My Passport hard drive, it is admitted that 100 videos and 25 images of CEM were located on that device.
In relation to count 6, the 2 TB WD My Passport hard drive, it is admitted that 30 images and 227 videos of CEM were located on that device.
In relation to count 7, a compact disc (CD), it is admitted that 62 images of CEM were located on that device.
In relation to count 8, another CD, it is admitted that 3 videos of CEM were located on that device.
Officer Haisma
Officer Haisma gave his evidence in an honest and straightforward manner and was not cross-examined by Mr Butafa.
I accept his evidence and his reports in relation to the forensic location of the CEM on the various devices and the other matters referred to in his reports and viva voice evidence.
It is not necessary to summarise his evidence as it is referred to when dealing with the specific charges.
Mr Bull
Mr Bull gave evidence that after his arrest he was admitted to Sir Charles Gairdner Hospital on 27 March 2020 and discharged on 9 April 2020. He was also admitted to Joondalup Health Campus on 17 February 2023 and discharged on 20 February 2023.
Mr Bull said that the history of abuse he reported to Mr Dunlop was true and the abuse continued until he was 18.
Mr Bull did not dispute that there were 458 CEM videos and 479 images across the various devices but maintained that he did not know there was any CEM on his devices. He accepted that his wife was the only other occupant of the residence and did not suggest that she had access to the devices that were in his possession.
He accepted that the downloads that were in progress when the police searched his residence were as a result of 'his fingers executing the computer commands necessary to initiate them' (ts 217). He agreed that the material located on the two CDs resulted from actions taken by him (ts 218). He agreed that 'he thought' the arrangement and storage of the CEM into various files and sub-files and sub-folders were as a result of his fingers executing the computer commands necessary to store and arrange those files.
Mr Bull said he used peer-to-peer downloading application and recalled using Shareaza and accepted that he used eMule.
He presumed that he had set up the locked folder on his computer but could not think of any purpose for why he had set it up (ts 220).
Mr Bull agreed that there was no mention of his alter‑ego 'George' in any hospital, medical or psychiatric record prior to his arrest in December 2019 (ts 221) nor any mention or reference to a dissociative identity disorder prior to his arrest in December 2019.
He agreed that his wife had never reported anything to him about having seen him in the altered state of 'George' saying she had seen him in an altered state, but not 'George' (ts 222).
Mr Bull agreed that in the period two years before his arrest, he was drinking whiskey and beer at night-time every day or every second day. He agreed that after he had come back from his mother's funeral he was drinking significantly more. Looking back he thought that was the start of his serious addiction to alcohol.
Mr Bull's evidence was to the effect that he would download adult pornography while he was drunk in his lounge room while his wife was in the other room watching TV and generally viewed that material within two or three days of it being downloaded and if CEM was present he would delete it. He said that material could be anywhere including a folder he did not recognise. If the folder had a name, he did not recognise he would open it and see what was in it.
Mr Bull said there had been an occasion when he was at a conference at a hotel when in the middle of the night he found himself in the hallway naked.
Mr Bull that his uncle George had never harmed him or sexually abused him but his brother had sexually abused him, maybe once.
Mr Bull agreed that he specialised in mortuary embalming and restoration cases involving advanced composition of bodies which was quite complex work. He said he was not suggesting that 'George' was controlling him when he was doing that work or that he was in a disassociated state when he was doing the embalming.
He denied that he was so drunk that he did not know what he was downloading.
Mr Dunlop and Dr Hall
Mr Dunlop and Dr Hall's evidence is dealt with later in these reasons. Both gave their evidence in a satisfactory way and I accept without reservation that both discharged their duty to assist the court with their genuinely held expert opinions.
Some relevant findings
I find, based on the search video, that the Casecom desktop computer (count 1) was located on the floor at the foot of the bed in the spare room. I accept Mr Bull's evidence that no one had access to the computer, it was password protected and no one else had the password and he provided the password to the police.
I find from the search video that the HP Pavilion desktop computer (count 2) was found on the computer desk in the front room.
I find from the search video that the Toshiba Satellite laptop computer (count 3) was located on the bed in Mr Bull's bedroom. I accept Mr Bull's evidence that it was his, no one else had access to it, the device was password protected and he provided the appropriate password.
I find from the search video the Asus X551M notebook computer (count 4) was located on top of the drawer in the computer desk in the front room.
I find from the search video that the 750 GB WD My Passport external hard drive (count 5) was located on the floor on the side of the bed. I accept Mr Bull's evidence that it was password protected and he provided the password to the police.
I find from the search video that the 2 TB WD My Passport external hard drive (count 6) was connected to the Toshiba laptop which was on the bed in Mr Bull's bedroom.
I find from the search video that the two CDs the subject of counts 7 and 8 were found with a stack of DVDs in the top shelf of the computer desk in the front room.
It is accepted by Mr Bull that all of these devices had CEM on them and all the devices were in his physical possession.
Mr Bull's evidence as to which devices were password protected are supported by the evidence of Officer Haisma.
In respect of count 1, an eMule peer-to-peer file sharing application was located on this device and a shortcut to launch that application was located on the desktop. The Shareaza application, another peer-to-peer file sharing application, was also installed. Mr Bull accepted his physical actions had initiated the eMule application that was in the process of downloading when the police attended on 2 December 2019, although he says these actions were the actions of 'George' that he was not able to control. The materials being downloaded included titles indicative of CEM. Mr Bull was not in possession of those materials because they had not been downloaded however the evidence of Mr Haisma was that the eMule application would show the name of the files and another step was required to be taken by the user to actually download those files.
Mr Bull's action in downloading those files with names indicative of CEM is circumstantial evidence capable of supporting an inference that at the time of the download he was interested in accessing CEM. That is the inference I draw. That is relevant to the issue of whether he had knowledge of the CEM that was admittedly on that device.
A shortcut to the Shareaza application was located on the desktop and previous search terms used revealed searches that I infer relate to CEM material.
In addition on the desktop of that device were a number of shortcuts to files that had CEM contained within. By clicking on to the shortcut (Ares and new folder (4) (Exhibit 3.6)) you could access CEM.
Additional CEM could be viewed by accessing the files that were located within the computer.
Officer Haisma's report shows that in October 2018 85 CEM videos were moved to a new folder created in October 2018 and in the same month a further seven CEM videos were transferred to a different new folder created in that month.
A timeline shows that in October 2018 five CEM video downloads commenced in the eMule application, and all five had the word 'molested' in the filename. The following day, two CEM video downloads began in the eMule application and one video with a title consistent with CEM was moved to a different folder. In the same month, 11 CEM videos began downloading in the eMule application, 10 of which were moved to a different folder by the user after downloading.
In relation to count 2, Shareaza was downloading at the time of the police search. Mr Bull cannot be in possession of that material because it was still being downloaded. However, the titles of the files being downloaded I infer are indicative of a person interested in ascertaining CEM.
Mr Bull does not dispute that he caused the download to be made although he says in effect that he was under the control of 'George'. Located on the desktop of that device are folders zxzxzx, Prism, and Matt (Exhibit 3.5.7). By clicking on those folders access to CEM is gained. Further CEM could be viewed by accessing the files that were located within the computer.
A hidden folder contained seven CEM video files located in one of the folders on this device. That folder and files contained within would not be displayed to a user until a password was entered which would in effect remove the hidden status making the folder visible.
A shortcut to launch Shareaza was located on the desktop, and that application showed current and previous use for downloading CEM files. Previously used search terms showed terms in some cases consistent with terms that I infer are associated with CEM material.
A timeline shows that in November 2019 two CEM files were downloaded from the Shareaza application and copied to another folder and the original sent to the recycle bin. On the same day two CEM files were downloaded in Shareaza and opened in associated applications.
In relation to count 3, the file containing CEM was visible on the desktop. If you opened the laptop you would see the file and are able to access the CEM located on it by literally clicking on the file (ts 168) (Exhibit 3.5.8).
In relation to count 4, CEM was located in a video file which was stored on the device. Once you open the video file the CEM is accessible. There is no evidence that the video file was located on the desktop (Exhibit 3.5.9).
In relation to count 5, the CEM was located in various folders. Once the hard drive is opened named folders would be shown and by clicking on those folders the images and videos would be seen (ts 176, ts 177) (Exhibits 3.5.10, 3.5.11, 3.5.12).
In relation to count 6, CEM files were located on the device. A number of CEM files were not contained inside a folder but those files would be displayed alongside the other folders when the hard drive was opened (ts 178) (Exhibits 3.5.13, 3.5.14).
In relation to both counts 7 and 8, images and the CEM material contained on the CDs, Mr Bull admits that his physical body movements had stored the CEM material on the CDs. I accept Mr Bull's evidence in this regard.
Mr Bull says all his actions that resulted in his physical possession of CEM on any device were the actions of 'George' that he was not able to control. I reject his evidence in that regard for reasons later explained.
Officer Haisma gave evidence relating to the date when the files were created on the system. The created date relates to when the file first existed on the particular device (ts 158). The modified date relates when the file was changed (ts 159) such as when they are converted to a different format or shortened, though simply opening the file, moving the file around would not change the modified date or time. The access date is when a user or a programmer accesses that file and that can be the date, for example, an anti-virus scan is activated.
Officer Haisma checked the time stamps shown on the various devices which showed slightly different times to 'real time' but nothing of consequence insofar as the issues before me are concerned.
I accept Officer Haisma's unchallenged evidence and his reports in relation to the forensic location of the CEM on the various devices and the other matters referred to in his reports and viva voice evidence.
The application of the law in this case
In addition to the elements of each charge the State must prove beyond reasonable doubt that the possession of CEM in each charge was a willed act of Mr Bull.
Where an act is done by a conscious person the inference as a matter of fact can, as opposed to must, be drawn that the act was a willed act. It is a matter of fact whether on any particular charge such an inference is drawn.
If the State do not prove beyond reasonable doubt in any charge that the act was a willed act Mr Bull is to be acquitted of that charge.
If the State do not prove beyond reasonable doubt each and every element of the charge being considered Mr Bull is to be acquitted of that count irrespective of whether he is of sound or unsound mind.
If the State prove beyond reasonable doubt that the act was a willed act and prove beyond reasonable doubt each and every element of the charge I am considering Mr Bull would, absent a plea of unsoundness of mind, be guilty of the offence because s 26 of the Criminal Code provides that every person is presumed to be of sound mind until the contrary is proven and therefore he would be criminal responsible for his conduct.
If the State prove beyond reasonable doubt each and every element of the charge being considered and that it was a willed act and Mr Bull fails to prove on the balance of probabilities that he is of unsound mind, Mr Bull is to be found guilty of that charge.
If the State prove beyond reasonable doubt each and every element of the offence and that it was a willed act and Mr Bull proves on the balance of probabilities that he is of unsound mind at the time of the charge, Mr Bull is to be found not guilty of each of the charges by reason of unsoundness of mind.
It is an issue of unsoundness of mind as opposed to automatism that is raised because Mr Bull's case is he was suffering from a mental impairment of dissociative identity disorder that deprived him of his capacity to control his actions and s 27 is accordingly the issue. He is not raising automatism which is the malfunction of a sound mind that was transient caused by physical or psychological trauma which an ordinary person would be likely not to have withstood and not prone to recur.
Before considering the issue of unsoundness of mind I will determine whether the State have proven each of the element of the charges.
The elements
Mr Bull is charged with the possession on a particular date. This case is not directly concerned with the download of materials in 2018 and 2019 but whether he was in possession of CEM on 2 December 2019.
The first element the State must prove beyond reasonable doubt is that in respect of the charge that I am then considering CEM was on the device referred to in that charge on 2 December 2019.
Child exploitation material includes material that depicts, describes, or represents a person or part of a person who is or appears to be a child:
•In a sexual context, or
•Engaging in sexual activity, or
•In an offensive or demeaning context, or
•Being the subject of abuse, cruelty or torture whether or not in a sexual context,
in a way likely to offend a reasonable person.
Offensive in this context is an image that offends socially accepted standards so as to cause significant disgust, outrage or angst in the minds of reasonable persons.
Demeaning is defined as lowering the dignity of a person.
As a result of the admissions I am satisfied that each of the devices the subject of the respective charges contained the CEM that I have referred to in [45] - [52].
The second element the State must prove beyond reasonable doubt is that Mr Bull was in possession of the CEM on the device referred to on the charge then being considered on 2 December 2019.
To be in possession of the CEM to which the charge relates Mr Bull must have knowledge that CEM exists on that device and must have control or dominion over that material and must have the intention to exercise control or dominion over that material.
Knowledge
The State do not need to prove that Mr Bull knew that all the CEM referred to in the charge being considered was on the device to which the charge relates however they must prove beyond reasonable doubt that he knew that at least one image of CEM was on the device particularised in the charge being considered.
Knowledge in this regards means that Mr Bull must be aware that CEM was on the device or believed that it is likely in the sense that there is a significant or real chance that CEM was on the device.
Control or dominion
The State must also prove beyond reasonable doubt that Mr Bull, knowing that there was CEM on the device the subject of the charge then being considered, had the CEM under his control or dominion on 2 December 2019.
The State must prove that Mr Bull had the capacity or ability to access the CEM on the device referred to in the charge being considered before he can have the CEM under his control or dominion.
The State must prove beyond reasonable doubt that at least one image of CEM on the device referred to in the charge being considered was capable of being viewed by Mr Bull and that he had the ability to retrieve that image and view it before he can have that image under his control or dominion.
If the State prove beyond reasonable doubt the CEM is on the device and Mr Bull knew that and had the ability to access that image or images whenever he wished an inference could, as opposed to must, be drawn that it was under his control or dominion.
Intention
Further the State must prove beyond reasonable doubt that Mr Bull had the intention to exercise control or dominion over at least one image of CEM on the device the subject of the charge then being considered on 2 December 2019.
Knowledge, control or dominion and intention are all separate matters required to establish possession and each must be proven by the State beyond reasonable doubt and all three must coincide and exist at the time Mr Bull was alleged to be in possession of the CEM, that is, on 2 December 2019.
Has the State proven beyond reasonable doubt all the elements
There are eight separate counts on the indictment and each charge must be considered separately. I am entitled to consider them in any order that I wish to, however, I consider them in numerological order.
In considering each charge on the indictment I consider only the evidence relevant to that count, and I do not take into account the CEM located on any other device other than the device relevant to the charge then being considered.
In relation to count 1, the eMule application was in the process of downloading files indicative of CEM. I infer from this that at the time of the search Mr Bull had an interest in CEM. The device had shortcuts on it that enabled direct access to folders containing CEM. Additional CEM could be viewed by accessing the files located within the computer. Other evidence establishes that in the past new folders were created and CEM moved into those folders and the timeline shows that in the past CEM folders were moved to different folders.
Mr Bull said that he in essence was the only person who accessed the device, it was password protected, and he knew the password.
I infer that Mr Bull had on 2 December 2019 knowledge that CEM was on the device.
I am satisfied beyond reasonable doubt from the combined weight of the circumstances that the only reasonable inference to draw is that Mr Bull had an interest in CEM, that he knowingly downloaded the CEM and did so because he wished to view the material, he stored the files on the device so that he could view it when he wished to. He knew CEM was on that device.
There is no other reasonable, rational inference in my view open based on that evidence.
In relation to count 2, the Shareaza application was in the process of downloading files indicative of CEM. I infer from this that at the time of the search Mr Bull had an interest in CEM. Folders were located on the desktop that led directly to CEM and further CEM could be accessed on other files located within the computer. Hidden files were located, the Shareaza application showed search terms consistent with CEM, the timeline shows that in November 2019 files were downloaded and copied and opened in associated applications. Mr Bull said that he in essence was the only person who accessed the computer, it was password protected, he knew the password.
I find the State have proven beyond reasonable doubt the knowledge aspect of possession for this charge for the reasons expressed in [130] ‑ [132].
In relation to count 3, a CEM file was visible on the desktop, CEM could be located simply by clicking on that file.
I find the State have proven beyond reasonable doubt the knowledge aspect of possession for the reasons expressed in [130] ‑ [132].
In relation to count 4, a video file was stored on the device, once that file was opened, the CEM was accessible. Mr Bull said that he in essence was the only person who accessed the device, it was password protected, he knew the password.
I find the State have proven beyond reasonable doubt the knowledge aspect of possession for this charge for the reasons expressed in [130] - [132].
In respect of count 5, CEM was located in folders that would be showing when the hard drive was opened, clicking on those files would show the CEM.
I find the State have proven beyond reasonable doubt the knowledge aspect of possession of this charge for the reasons expressed in [130] - [132].
In relation to count 6, CEM files were located on the device, a number of the files that would be displayed alongside other folders when the hard drive was opened.
I find the State have proven beyond reasonable doubt the knowledge aspect of possession for this charge for the reasons expressed in [130] - [132].
In relation to both counts 7 and 8, CEM was stored on those CDs and Mr Bull admits that his actions had stored them.
I find the State have proven beyond reasonable doubt the knowledge aspect of possession for these charge for the reasons expressed in [130] - [132].
Considering each count separately I am satisfied beyond reasonable doubt that Mr Bull knew that the CEM was on the device the subject of each charge.
Considering each charge separately I am also satisfied beyond reasonable doubt that the CEM on each device was under his control or dominion as I am satisfied that the CEM was on the device and that Mr Bull as a matter of fact knew the CEM was on the device and had the ability to access that device and access the CEM it contained. It was literally one or two clicks away.
Further I am satisfied beyond reasonable doubt that Mr Bull had the intention to exercise control or dominion over the CEM on the storage device the subject of the count being considered. I infer as the only reasonable inference that the whole reason that the CEM was downloaded and stored was so that he could access it as and when he desired. This is the only reasonable inference to be drawn from his acts of storing the CEM in the manner he did on the device being considered.
I find that the State has proven beyond reasonable doubt each and every element of each charge.
Further I am satisfied beyond reasonable doubt the only reasonable inference to draw is that the possession of the CEM the subject of each charge was a deliberate willed act of Mr Bull. The physical acts required to download and store the CEM on the device were I find Mr Bull's willed acts as was the associated knowledge of, control or dominion, and intention to exercise control or dominion over that CEM. There is no other reasonable inference based on the evidence that I have referred to available.
As a matter of law each charge must be considered separately and I cannot, and have not, reasoned that because the State have proven all the elements of one charge that means they have proven all the elements of another charge then being considered. That is impermissible reasoning in law.
As a matter of law a finding the State have proven all the elements of one or more charges is incapable in law of proving that the State have proven all the elements of any other charge I am then considering.
If I am satisfied beyond reasonable doubt the State have proven all the elements of one or more charge and are satisfied beyond reasonable doubt that showed Mr Bull had an interest in CEM and a willingness to give effect to that interest by possessing such material (which I refer to as a tendency) and are satisfied beyond reasonable doubt that tendency existed at the time of the charge then being considered by me that then and only then the law would permit me to take the fact that Mr Bull has that tendency into account with all the other evidence relevant to the charge then being considered in determining whether I was satisfied the State have proven beyond reasonable doubt all the elements of that charge.
That is the only permissible basis that I could use a finding the State have proven all the elements of one charge in respect of another charge that I was considering.
It is not the finding the State have proven all the elements of one charge that is of any relevance, it is the tendency.
As a matter of law by itself the existence of that tendency cannot prove the State have proven all the elements of another charge that I am considering.
Even if I found that Mr Bull did have such a tendency I could not conclude that by that fact alone the State have proven all the elements of any other charge.
It could not lead me to automatically finding the State have proven all the elements of any other charge on the indictment.
As a matter of law it does not follow that because a person has tendency that he always acts on that tendency.
I cannot use that tendency if I found it existed in substitution in any way for evidence of the incidents charged on the charge then being considering.
I cannot use that tendency evidence to fill any gaps in the prosecution case.
Nor could I say that because Mr Bull has a tendency the State's other evidence should therefore be automatically accepted.
However as indicated I am satisfied beyond reasonable doubt that the State have proven the elements of each count on the indictment by considering only the evidence relating to that count. I have not used or considered a finding that the State have proven all the elements of one count in any shape or form when considering another count on the indictment. In other words I am satisfied of Mr Bull's guilt in respect of each individual charge without considering any tendency evidence.
Mr Bull's position
Mr Bull's position as evidenced by his statements in the search video, Exhibit 2, was in effect that he would download adult pornographic material, sometimes by using peer-to-peer applications and when those materials were downloaded he would generally, within two or three days, open those files and examine them. If there was any CEM he would delete it as this was not the material he was interested in.
Mr Bull's position at trial is essentially he does not dispute that his physical actions downloaded and stored the CEM but says that he is not criminally responsible for his acts by virtue of unsoundness of mind because at the time of possessing that material he was in such a state of mental impairment so to deprive him of his capacity to control his actions.
The mental impairment he says he was suffering from is of dissociative identity disorder impairment which he says deprived him of his capacity to control his actions in possessing the CEM. He says that his alter-ego, 'George', was in effect the person making those keystroke entries and his act in possessing the CEM was an act over which he had no control and therefore he is not guilty by reason of unsoundness of mind.
The defence of unsoundness of mind
Every person is presumed to be of sound mind until the contrary is proved: the Criminal Code s 26.
Mr Bull has the burden of proving that he was not of sound mind at the time he did the acts which are alleged to constitute each offence. He must prove that he was not of sound mind on the balance of probabilities: R v Porter [1933] HCA 1; (1933) 55 CLR 182.
Section 27 of the Criminal Code provides:
(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 the 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.
Section 1(1) of the Criminal Code defines 'mental impairment' as including 'mental illness'.
'Mental illness' means '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': Criminal Code s 1(1).
'Mental impairment' therefore includes a 'mental illness' which is an underlying pathological infirmity of the mind whether of short or of 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.
An 'infirmity of the mind' is a weakness of the mind. An underlying pathological infirmity of the mind is an underlying infirmity of the mind which is related to disease or an abnormal bodily condition: The State of Western Australia v Herbert [2017] WASC 101 [10] Jenkins J.
A person is deprived of the capacity to control their actions if they are deprived of the capacity to make a conscious decision to act (that is, to act voluntarily) or if they are deprived of the capacity to refrain or restrain themselves from doing a willed act.
If the effect of a person's mental impairment is to deprive them of the capacity to refrain from doing an act, that is, to exercise the power of choice to act, they will, by reason of their mental impairment, be deprived of the capacity to control their actions within the meaning of s 27(1) even though the act was a willed or deliberate act; an act done as a result of a consciously made decision.
What constitutes a mental illness is a question of law.
I accept the evidence of Dr Hall that dissociative identity disorder is a mental impairment (mental illness) within the definition of s 27 of the Criminal Code.
I accept that if Mr Bull's actions in possessing the CEM on 2 December 2019 were as a result of dissociative identity disorder he would have been deprived of his capacity to control his actions within the meaning of s 27.
Whether the evidence establishes Mr Bull was suffering a mental illness, dissociative identity disorder, is a question of fact.
The diagnostic criteria
The DSM-5, published in 2014 lists the diagnostic criteria for dissociative identity disorder as follows:
A.Disruption of identity characterised by two or more distinct personality states, which may be described in some cultures as an experience of possession. The disruption of marked discontinuity in sense of self and sense of agency, accompanied by related alterations in affect, behaviour, consciousness, memory, perception, cognition, and/or sensory-motor functioning. These signs and symptoms may be observed by other or reported by the individual.
B.Recurrent gaps in the recall of everyday events, important personal information, and/or traumatic events that are inconsistent with ordinary forgetting.
C.The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
D.The disturbance is not a normal part of a broadly accepted cultural or religious practice. Note: In children, the symptoms are not better explained by imaginary playmates or other fantasy play.
E.The symptoms are not attributable to the physiological effects of a substance (e.g., blackouts or chaotic behaviour during alcohol intoxication) or another medical condition (e.g., complex partial seizures).
Before considering this issue I briefly summarise the relevant expert's evidence.
Mr Dunlop
Mr Dunlop is a psychologist with over 42 years' experience, including working at the Graylands Psychiatric Hospital, Safecare Inc, Department of Child Protection, Department of Corrective Services and in private practice.
He was the treating psychologist of Mr Bull.
He provided two reports, being Exhibit 4.1 (27 October 2020) and Exhibit 4.2 (13 March 2023). Mr Dunlop stressed that his second report was not intended to be a reflective report as it was just a summary of the notes he had taken from meetings with Mr Bull and others, bearing in mind that he had a stroke between the first and second report and was not able to do anything other than, at that stage, provide his notes.
In total Mr Dunlop had seen Mr Bull on 18 occasions. Taking into account his associate, Ms Paige's consultations and group therapy, Mr Bull had been seen by Mr Dunlop's practice on about 56 occasions.
Mr Dunlop described Mr Bull as open, honest, hesitant, shy, withdrawn and depressed but an intelligent, accomplished and sensitive man with serious underlying mental health problems who had also been struggling with a serious addiction to alcohol in recent times.
Mr Dunlop reported that Mr Bull had been exposed to alcohol and drugs from when he was 12 or 13, and he was a heavy alcohol user following the loss of his and his wife's first two babies and the death of his father.
Mr Dunlop reported that Mr Bull had told him that he witnessed his older brother, Dennis, [redacted], raping her on a regular basis from the age of about 7 and said his older brother physically abused him in the most traumatic way. Mr Bull reported that he was not sexually abused by his brother.
Mr Bull also described an accident at work that left him with a fractured skull and nose.
Mr Dunlop detailed Mr Bull completing his apprenticeship, subsequent marriage, successful employment and ultimately successful efforts with his wife in raising a family.
Mr Dunlop noted that as a teenager Mr Bull used alcohol and drugs to moderate his stress, depression and anxiety. Mr Bull reported to Mr Dunlop that he used LSD as a method to disassociate himself and escape the levels of stress and distress, that when he was 12, as the result of an LSD trip, he experienced an outside the body experience and was a regular astral traveller. About that time he began to experience the presence of a persecutory voice which he called 'George'.
Mr Dunlop said that in Mr Bull's case, 'George' was an alter‑ego living inside Mr Bull's head and mind and persecuting him and Mr Bull became extremely distressed to the point of suicide when he experienced 'George' making an attack on him.
Mr Dunlop said 'George' was an internalisation of Mr Bull's experience of being repeatedly traumatised and persecuted by his brother, and to a lesser extent, his mother and that the negative voice of 'George' was dominant and when associated with the extreme traumatic experiences of the kind Mr Bull had suffered 'George's' voice became so loud and intense that Mr Bull's actions was in effect the actions of 'George' rather than his own.
Mr Dunlop said dissociative identity disorder results from the human capacity to deal with extreme pain, stress or distress, simply by going numb. The individual in essence can retreat to avoid the overwhelming pain or distress, in effect, by going outside or disconnecting from his body.
One way they retreat is to become a wholly different person. In Mr Bull's case, this was with 'George' and that is the persona who had taken over control of his actions and downloaded the CEM. Mr Dunlop said this was a dissociative identity disorder.
Mr Dunlop said individuals in a dissociative or fugue-like state have no recall of what they have done, nor do they have control over what they were doing.
Mr Dunlop said Mr Bull had a history of repeated trauma very early on in his life and had experiences of disassociation which was consistent with the diagnosis of dissociative identity disorder.
Mr Dunlop said Mr Bull's actions in downloading the CEM were actions over which he had no control and that at the time he was in a dissociated, fugue-like state of dissociative identity disorder. He said Mr Bull had no control over the actions of 'George' who he 'guessed' was drawn to this type of material as the consequence of having been an observer [redacated] sexually abused as a child by his brother and witnessing his brother's sexual activity in his early teens.
He said Mr Bull could genuinely have not recalled having downloaded the CEM.
As I understand Mr Dunlop's reports, he based his diagnosis of dissociative identity disorder on the following factors:
1.The presence in Mr Bull's life of another individual ('George') who was hostile to him and out to get him.
2.Mr Bull's experiences of dissociation. He said Mr Bull had a long history of a capacity to disassociate, going back to when he was 12 ‑ 14, including astral travelling and an incident in a hotel where he found himself naked either in the lobby or outside of the hotel room and could not remember anything about the incident. Mr Dunlop said disassociation was a mechanism through which Mr Bull escaped from extreme pain and distress, in effect, by going outside or disconnecting from his body and this was an indicator that Mr Bull was in a dissociative identity disorder.
3.Mr Bull reported many experiences of gaps in his memory. Mr Dunlop referred specifically to the hotel incident and an example where Mr Bull walked his dog and in essence was gone for three hours and had no memory of it and gave other examples of memory gaps.
4.Reports of Mr Bull phasing in and out at various times including in conversations with his wife was another indicator that Mr Bull was in a dissociative identity disorder.
5.Mr Bull's ability to talk nonchalantly with his brother who was responsible for inflicting terrible trauma on him was an example of him disconnecting from his feelings and an example of disassociation which in turn was indicative of dissociative identity disorder.
6.Mr Bull's ability to work as a mortuary embalmer for the last 22 years and to undertake reconstruction work in circumstances where he was regularly working with disfigured bodies led Mr Dunlop to say this was a piece of evidence of Mr Bull's capacity to dissociate which in turn was indicative of dissociative identity disorder. Mr Bull had told him others had on average only lasted 7 or so years in this occupation.
He said that 'George' was not attributable to the consumption of alcohol but rather, alcohol was a way Mr Bull attempted to escape from the distresses he experienced when 'George' was present.
Notwithstanding that Mr Bull had told Mr Dunlop that his brother had only physically abused him Mr Dunlop said that Mr Bull was not ready to fully acknowledge that he was sexually abused as a child, possibly by his brother. Mr Dunlop said the truth of which would only emerge in long term therapy.
Mr Dunlop reported that 'George's' presence in Mr Bull's life fluctuated dramatically. It was strong on and off during the teens and early adult life and then diminished but returned with a vengeance after the loss of the first two children. More recent events such as Mr Bull's father dying, Mr Bull subsequently re‑connecting with his brother, his mother's death, Mr Bull returning to New Zealand for his mother's funeral and the disharmony between he and his sister following his mother's death, ultimately resulting in his sister's rejection of him which created added stress for Mr Bull.
Mr Dunlop said that after his sister's rejection of him, there was an increased presence of 'George' including 'George's' voice intensifying and increased hostility by 'George' towards Mr Bull. Mr Dunlop said Mr Bull tried to deal with this by increasing his alcohol intake and accessing pornography and because of his dissociative identity disorder he was unaware of doing so. He said Mr Bull's capacity to maintain the dominance and control that he could normally exercise, seems to have broken down and resulted in his other self ('George') playing an equal or almost important part in his life which led to a period of heavy drinking, his hospitalisation and diagnosis of paranoid schizophrenia.
Mr Dunlop was not surprised that Mr Bull had major psychological and behavioural problems as a teenager. It was surprising that he came to lead a relatively stable and healthy life and has been able to raise two healthy and stable children and have a successful career.
In his second report of 13 March 2023, Mr Dunlop noted that Mr Bull had gone into increasing levels of depression due to the fear of receiving a jail term, and being deported to New Zealand which would result in he and his wife losing contact with their children and grandchildren.
Mr Dunlop said that even though Mr Bull told him that he knew a real person named 'George' who was his mother's brother, Mr Bull told him that person did not do anything bad to him and he was a nice bloke, being different to the alter‑ego 'George'. Mr Dunlop said this raised a possibility that he may have been sexually abused by his uncle George.
Dr Hall
Dr Hall is an experienced psychiatrist who provides psychiatric reports to the court and to the Mentally Impaired Accused Review Board and the Prisoners Review Board and under the Dangerous Sexual Offenders Act 2006 (WA).
Dr Hall provided two reports, that being Exhibit 4.3 (dated 12 January 2021) and Exhibit 4.4 (dated 7 September 2023).
Dr Hall accepts the DSM-5 recognises a dissociative identity disorder as a recognised psychiatric condition and is a mental illness.
He noted that Mr Bull was highly anxious about the potential for a prison sentence and reported that if he received a prison sentence he would commit suicide.
Dr Hall noted that Mr Bull reported using LSD as a juvenile and reported to staff at Sir Charles Gairdner Hospital in March 2020 that he was still drinking half a bottle of whiskey per night.
Mr Bull reported that his brother terrorised him and physically assaulted him and [redacted] his sister.
Dr Hall noted Mr Bull's explanation that he downloaded a lot of adult pornography and he downloaded CEM inadvertently, and was unaware of the folders which contained the CEM. Mr Bull reported that he was not aroused or viewing the material for sexual gratification.
Dr Hall said Mr Bull spontaneously volunteered an account regarding 'George' and engaged in a degree of impression management whereby he would repeatedly redirect the assessment to the topic of 'George' and to expanding on the childhood trauma he suffered even when out of context. Dr Hall described it as like an agenda by Mr Bull.
Mr Bull told him 'George' took 'over him, kidnapped him, overpowered him' and had always been there.
Dr Hall said Mr Bull had a vulnerability to depression, long‑standing problems with alcohol, and appeared to suffered a marked deterioration in emotional and psychological functioning about 18 months to two years ago in the context of increased alcohol use, re‑traumatisation, through significant family events, bereavements and losses.
Dr Hall said there was no contemporaneous record of 'George' taking over the actions of Mr Bull prior to him being charged.
Dr Hall said he has extensive experience with people charged with offences, and it is not unusual for them to process feelings of guilt and shame which would otherwise overwhelm them by searching for something to blame their actions upon as a matter of psychological survival.
Dr Hall said Mr Bull used 'George' to defend against overwhelming moral, shame, remorse and guilt. That is, he is committed to believing what provided a defence mechanism to acknowledging the wrongfulness of his acts. Dr Hall said that it is highly possible that Mr Bull's beliefs regarding 'George' serves as a form of moral disengagement via exculpatory illness identity, a scheme to which Mr Bull was quite welded.
Dr Hall said that the stance of denial is extremely common and is a psychological defence against shame, remorse and guilt, so extreme that it can overwhelm a person and a form of moral disengagement.
Dr Hall said he did not believe Mr Bull was suffering from dissociative identity disorder.
Dr Hall said Mr Dunlop's description of Mr Bull making references to watching himself and feel like somebody else was doing things for him but being conscious at the time and having such sufficient memory to be able to describe these events to Mr Dunlop, is more consistent with a dissociative state, such as depersonalisation than with an alternate separate identity as is required for dissociative identity disorder.
Dr Hall said that depersonalisation does occur in dissociative identity disorder but not all depersonalisation occurs as the result of dissociative identity disorder. I note that Mr Dunlop agreed with this assertion.
Dr Hall reported that Mr Bull's claims that 'George' was trying to talk him into suicide was potentially an auditory hallucination and it was common that people who have depressive symptoms or psychotic conditions to have auditory hallucinations which are often derogatory or commanding them to do things including suicide.
Dr Hall said that Mr Bull's symptoms would suggest that the alter‑ego ('George') was commanding the host (Mr Bull) and they were interreacting rather than being separate identities. He said the DSM‑5 diagnostic criteria refers to distinct personality states and a marked discontinuity in the sense of self which Dr Hall said refers to a requirement that they be not present at the same time. Dr Hall said Mr Bull had quite a considerable awareness of his sense of self. Dr Hall acknowledged there was a trend towards expanding that concept to the point where identities may interact with one another but said this was not the current diagnostic criteria. He said interacting of the alter-ego and the host was not consistent with the DSM-5 definition (ts 196, ts 197).
Dr Hall said even if 'George' was in Mr Bull's mind genuinely talking to him and he was experiencing memory lapses and fading in and out and feeling a sensation of himself outside his body and found himself on an occasion naked in a hotel lobby, it would not cause him to conclude that a dissociative identity disorder was a credible diagnosis. He said all of those experiences taken together did not constitute dissociative identity disorder (ts 203).
Dr Hall said that the gaps in Mr Bull's memory are most likely related to adverse neurological effects of both acute and chronic alcohol abuse. He said that there were a number of diagnostic possibilities that could explain the memory loss, including alcohol related neurocognitive disorders, stress, and advanced age. He said the memory lapse was far more likely to be caused by other things and is more consistent with alcohol use.
Dr Hall said that the references to Mr Bull being split into good and bad persons is not specific or indicative of dissociative identity disorder and can represent internal moral conflict.
Dr Hall accepted that Mr Bull disassociated with 'ease' but said that in itself is not diagnostic of a dissociative identity disorder. He said you can have disassociation without having dissociative identity disorder and a degree of disassociation is healthy, particularly as a protective mechanism and is not specific to dissociative identity disorder.
Dr Hall said the reference in Mr Dunlop's report to Mr Bull zoning or phasing out while suggestive of disassociation, falls well short of being indicative of the presence of another separate identity.
Dr Hall says while it is not uncommon or unknown for people to have lingering symptoms, he did not believe that Mr Bull was malingering, but rather genuinely believed the position that he has now put forward in relation to 'George'.
Mr Hall said the phenomena of depersonalisation, and the memory loss as most likely from causes other than dissociative identity disorder.
Conclusion in relation to the medical experts
Mr Butafa criticised Dr Hall saying there was no basis for his assessment that Mr Bull's lapses in memory were as a result of alcohol abuse because the CT and MRI scans referred to in the Sir Charles Gairdner Hospital discharge summary of 9 April 2020 reported the CT and MRI scans as being normal.
Firstly, Dr Hall was aware of those CT and MRI scans because he referred to them in his report. Secondly, there is absolutely no evidence at all to establish that any impairment caused by alcohol would show on the CT or MRI scan by way of a lesion as Mr Butafa suggested. There is no merit in that submission (ts 316).
Mr Butafa also submits that Dr Hall having only spent two hours with Mr Bull had an insufficient basis to write a report. This was not put to Dr Hall and this point has in my view no merit.
Mr Butafa also relies on Exhibit 6 the discharge summary of 9 April 2020 where Mr Bull reporting memory loss, somebody taking over his body, astral travel and when he comes back somebody else was there, hearing voices saying things to him and calling the voice 'George' as supporting Mr Dunlop's diagnosis.
These are self-serving statements made after Mr Bull's arrest. The discharge summary was one of the documents viewed by Dr Hall before he prepared his two reports. Nothing in either of the discharge summaries causes me to doubt Dr Hall's conclusions.
I find that Mr Dunlop is an experienced psychologist of long standing, and I accept him as an expert in his field. He spent much more time with Mr Bull than Dr Hall. Dr Hall saw Mr Bull on one occasion for approximately two hours. Mr Dunlop and his associates (including group therapy) saw Mr Bull about 56 occasions and therefore over a longer period of time.
Dr Hall, whilst accepting that dissociative identity disorder is a recognised mental illness, has not personally dealt with any cases of a person suffering from this disorder. Mr Dunlop has experience with other persons who he says suffer from such a disorder.
Dr Hall is a an experienced consultant psychiatrist of long standing and I accept he is an expert in his field. He has a medical degree and specialist training in psychiatric illness.
Mr Dunlop has a Bachelor of Electrical Engineering, a Bachelor of Arts, and a Master of Psychology, but does not have a medical degree.
Notwithstanding Mr Dunlop's numerous awards and memberships of professional bodies, I find that by benefit of his medical training and specialist psychiatric training, Dr Hall is more qualified to speak as to mental illnesses than Mr Dunlop and for that reason prefer his evidence over that of Mr Dunlop.
In addition as Mr Bull's treating psychologist Mr Dunlop accepted that he had a duty of care towards Mr Bull and agreed that his primary relationship with Mr Bull was that of a therapeutic nature, however, he did not accept that he lacked independence as a result of his position as a treating psychologist. I find that Mr Dunlop's opinion lacks a degree of independence by virtue of the fact that he is Mr Bull's treating psychiatrist. Part of Dr Dunlop's process is creating a space in which Mr Bull was encouraged to report whatever comes to his mind without having to worry about whether it is logical, makes sense, is good or bad, and/or socially acceptable.
Prior to giving his evidence, Dr Hall had seen the reports of Mr Dunlop and refers to each of the reports. That is, he considered what Mr Dunlop had to say before he reached his conclusion.
Neither of Mr Dunlop's two reports refer to him having seen Dr Hall's reports and having considered Dr Hall's opinion. I acknowledge that before he gave his evidence, Mr Dunlop had remained in the court while Dr Hall gave his evidence and Mr Dunlop maintained his opinions even after hearing Dr Hall's evidence.
Other evidence tends to support Dr Hall's conclusion in one way or another.
Mr Bull reported to both Mr Dunlop and Dr Hall that 'George' had been in his life since he was approximately 14 and yet there is no mention in any hospital, medical or psychiatric record of 'George' prior to Mr Bull's arrest. I find the complete lack of any mention of hospital, medical or psychiatric record of 'George' prior to Mr Bull's arrest is consistent with the conclusions reached by Dr Hall that Mr Bull does not suffer from dissociative identity disorder.
Dr Hall's evidence that memory loss, dissociative state, zoning and phasing out, and depersonalisation are all consistent with cause other than dissociative identity disorder was not really disputed by Mr Dunlop. The point of difference appeared to me to be that Dr Hall said they were not specific or indicative by themselves or in combination of dissociative identity disorder, whereas Mr Dunlop said that in combination they supported his diagnosis.
Dr Hall said it was more likely that Mr Bull's memory loss was alcohol related. Mr Dunlop said it was not.
There is ample other evidence to support Dr Hall's opinion in this regard. Even Mr Dunlop concluded that Mr Bull struggled with a serious addiction to alcohol in recent times and concluded that his alcohol use increased dramatically after he returned from New Zealand after attending his mother's funeral in the second half of 2018. Mr Dunlop said that after his sister's rejection of him following the mother's funeral, Mr Bull tried to deal with it by increasing his alcohol intake. Mr Bull's own evidence was that he was drinking at the time two years before his arrest every day or every second day at night‑time, drinking whiskey and beer and after his mother's funeral he started to drink significantly more and that was when he started to struggle with a serious addiction to alcohol.
I accept his conclusion that Mr Bull falls short of establishing two or more distinct personality states that has a disruption of marked discontinuity in the sense of self.
I accept Dr Hall's conclusion that Mr Bull does not suffer from dissociative identity disorder.
Whilst the burden is on Mr Bull to show that he does suffer from dissociative identity disorder and the offences of possession on 2 December 2019 occurred as a result of that dissociative identity disorder when he did not have the capacity to control his actions I find positively that I prefer the evidence of Dr Hall and am satisfied that Mr Bull did not have a dissociative identity disorder.
Conclusion on Mr Bull's evidence
I found Mr Bull's evidence implausible in relation to not possessing the CEM.
Mr Bull's evidence both in court and in the search video to the effect that if he found CEM he would delete it is not consistent with the objective facts relating to the CEM found on the devices. The objective facts show that a large amount of CEM was not deleted. In some cases for example in counts 1, 2 and 3 there were either shortcuts on the desktop that led directly to the files containing CEM or the file was visible on the desktop. In other counts files were stored on the computer. Mr Bull admitted in relation to counts 7 and 8 that his actions stored the CEM on the discs. This is completely inconsistent with his evidence and it cannot be accepted in relation to those matters.
I find it implausible that if 'George', his alter‑ego, was present in his life since he was 14 that there would be no medical, or hospital note or record prior to his arrest of 'George's' influence on his life.
According to Mr Dunlop and Mr Bull, Mr Bull told Mr Dunlop that his brother had physically abused him but not sexually. Mr Bull told Dr Hall that he had not been sexually abused, but only physically assaulted by his brother.
Mr Dunlop in his second medical report raises a possibility that despite Mr Bull saying to the contrary that he may have been sexually abused by his brother. Mr Dunlop's evidence and report says that in over 90% of the cases people who carry out sexual abuse have themselves been sexually abused (Exhibit 4.2).
Mr Bull's evidence in court, after the report, is that his brother maybe sexually abused him 'maybe once' saying 'Yeah I remember once' (ts 226).
This is no evidence that Mr Bull has read Mr Dunlop's reports however in the context of a therapeutic relationship where Mr Dunlop says in his report (Exhibit 4.2, par 7.14) that part of the process is creating a space in which the client trusts the therapist sufficiently to report whatever comes to his mind without having to worry about whether it is logical, makes sense, is good or bad and/or socially acceptable it raises at least a suggestion that Mr Bull is adopting matters raised in his therapy session.
I reject Mr Bull's evidence that he did not know of the CEM on the various devices as inherently implausible. The CEM could only be on the devices if it had been downloaded. For the reasons given in respect of each charge the only reasonable inference is that he knowingly possessed the CEM and I reject his evidence to the contrary.
I have no doubt that Mr Bull believes that he has dissociative identity disorder occurring in circumstances where Mr Dunlop made such a diagnosis. It is not necessary for me to determine whether it is as a psychological defence mechanism for the shame otherwise associated with accepting responsibility for these matters as referred to by Dr Hall in his evidence.
Verdict
For these reasons I am satisfied beyond reasonable doubt that the State has proven all the elements of each charge and that possession of the CEM was a willed act of Mr Bull. I find that he was not suffering from dissociative identity disorder which deprived him of his capacity to control his action on the date on which he is charged with committing the various charges.
I find Mr Bull guilty of each charge.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KH
Associate
3 NOVEMBER 2023
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