The State of Western Australia v Cameron [No 2]
[2024] WASC 291
•16 AUGUST 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CAMERON [No 2] [2024] WASC 291
CORAM: MCGRATH J
HEARD: 11 - 13 AND 20 MARCH 2024
DELIVERED : 16 AUGUST 2024
FILE NO/S: INS 38 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
CALLUM JAMES CAMERON
Accused
Catchwords:
Criminal law - Trial by judge alone - Murder - Intent to kill - Intoxication - Drug induced psychosis - Whether intoxication deprived the accused of the capacity to form the requisite intention for the offence of murder - Whether the accused in fact had requisite intention for the offence of murder at the relevant time
Legislation:
Criminal Code (WA) s 27, s 28, s 279
Result:
Guilty of murder
Category: A
Representation:
Counsel:
| Prosecution | : | Ms K Robinson & Ms E-M Roberts |
| Accused | : | Ms H E Prince & Ms P A Hudson |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
R v Clough (No 2) [2010] QCA 120
Stefanski v The State of Western Australia [2022] WASCA 5
The State of Western Australia v Cameron [2024] WASC 37
The State of Western Australia v Daly [2019] WASC 386
The State of Western Australia v Davidson [2022] WASC 70
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Knock [2020] WASC 246
The State of Western Australia v Pal [No 2] [2023] WASC 449
The State of Western Australia v Quartermaine [2020] WASC 458
Viro v The Queen (1978) 141 CLR 88
MCGRATH J:
The accused has been indicted on one count that on 10 August 2022 at St James he murdered Carol Ann Cameron contrary to s 279 of the Criminal Code (WA).
On 19 February 2024, I ordered that the accused be tried by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA).[1]
[1] The State of Western Australia v Cameron [2024] WASC 37.
The accused's trial was conducted before me between 11 and 13 March 2024 and on 20 March 2024.
At the commencement of the trial, the accused entered a plea of not guilty to the count of murder but stated that he was guilty of the statutory alternative count of manslaughter.
At trial the issue in dispute was narrow in compass. Counsel for the accused stated that the defence relied upon s 28(3) of the Criminal Code, in that the accused's level of intoxication resulted in him being unable to form the requisite intention for the offence of murder.
For the following reasons, I have determined that the accused did form the requisite intention for the offence of murder at the time that he took possession of a knife and inflicted 62 stab wounds to the deceased. I am satisfied that the accused had the intention to kill the deceased. Therefore, I am satisfied that the accused is guilty of the offence of murder.
In these reasons, I will consider the following:
1.The conduct of the trial and issues.
2.Relevant legal principles.
3.Evidence received at trial.
4.Assessment and findings.
The conduct of the trial and issues
At trial, whilst the accused did not make any formal admissions pursuant to s 32 of the Evidence Act1906 (WA), the accused pleaded guilty to the statutory alternative count of manslaughter. The State did not accept that plea in satisfaction of the indictment.
The issue at trial was whether the accused held the requisite specific intention for the offence of murder at the relevant time. I will summarise the facts outlined by the State and the response by counsel for the defence during opening addresses. The following facts were not in dispute at trial.
The accused is the 27-year-old son of the deceased, Mrs Carol Cameron, who was 63 years of age. The accused and the deceased resided together in the family home at St James.
At approximately 2.00 am on 10 August 2020, the deceased called emergency services to request an ambulance for her son who she believed had overdosed on illicit drugs. At 2.06 am, ambulance officers Mr Bowring and Mr Vincent attended at the premises. The officers were met by the deceased who advised them that her son had taken ayahuasca (being a plant based psychedelic drug). The deceased stated that her son was acting 'weird', and expressed concern in respect to his behaviour. Accordingly, the deceased led the two ambulance officers to a bedroom at the end of the hallway in the premises.
The two ambulance officers found the accused lying on his bed rubbing his head into his pillow and appearing to be unresponsive to the presence of the ambulance officers. The deceased advised the ambulance officers that the accused had earlier that night taken ayahuasca, which had been taken on previous occasions but not in the quantity he had consumed on this occasion. In addition, the deceased stated that the accused had consumed lorazepam and olanzapine.
The accused sat up in his bed and appeared with his pupils dilated and with a vacant expression. The deceased assisted the accused in drinking some water and he then laid back down on his bed.
The ambulance officers decided to take the accused to hospital if he was willing to do so. The deceased encouraged the accused to get up from his bed. As she was so doing, Mr Bowring went outside to prepare the ambulance in order to transport the accused to the hospital. Subsequently, upon Mr Bowring's return to the bedroom a decision was made to request police assistance for the reason that the paramedics assessed that the accused's conduct was escalating and that he was becoming agitated.
The deceased was encouraged to move to the front door. The accused was reluctant to do so and lay on the sofa in the lounge room with his face in the cushions. The deceased continued to encourage the accused to go with the ambulance officers. The accused got up and walked into the kitchen area followed by the deceased. At that time they were out of sight of the two ambulance officers. The conversation between the accused and the deceased became more agitated with the deceased coaxing the accused to go with the ambulance officers, resulting in the accused telling her to 'fuck off'. At that time the ambulance officers heard the sound of cutlery being moved and the deceased shouting 'no, no, don't, stop' and 'he is stabbing me'. The ambulance officers observed the deceased coming in line with their vision while she was screaming for help and crawling along the floor as the accused stabbed her repeatedly with a knife. The ambulance officers retreated to the ambulance and activated a 'code black', requesting priority one police assistance.
Senior Constable Emery was the first officer at the scene. Mr Emery entered the premises with his firearm drawn and with his body worn camera activated. The deceased was located lying on the floor of the living room with a large amount of blood pooling around her body. Mr Emery then moved to the games room at the end of the hallway where he found the accused sitting on a couch with his feet on a coffee table and being remarkably calm. Mr Emery instructed him to hold out his hands, which the accused complied with. At that stage two other police officers entered and tried to arrest the accused, who commenced struggling and trying to break free. The accused was arrested with the assistance of several police officers and use of a taser and a baton.
The accused was escorted out of the house into a waiting ambulance. At this time the accused was shouting for assistance, stating 'call the police'. While travelling to Fiona Stanley Hospital, the accused appeared more subdued but asked a couple of times if his mother was okay and if he was in trouble.
At 4.05 am, the deceased was declared dead at Royal Perth Hospital. The cause of death was identified as multiple sharp force injuries, namely stab wounds.
During the postmortem examination 62 stab wounds were identified on the deceased. There were several stab wounds to the face, to both arms and to the back of the torso. There were also stab wounds to the chest, the left lower leg and the right hip.
A blood sample taken from the accused at Fiona Stanley Hospital showed the presence of a high level of N,N-Dimethyltryptamine (DMT), as well as other substances. The level of DMT is consistent with the accused having consumed a large amount of ayahuasca prior to the attack on the deceased.
Counsel for the accused opened on the basis that the accused did intentionally ingest the illicit substances and therefore, became voluntarily intoxicated. Counsel stated that the accused was intoxicated to such an extent that he was in an acute confusional state, being a delirium. As a consequence of the intoxication, the accused did not have the requisite intention for the offence of murder. Counsel stated that the defence relied upon s 28(3) of the Criminal Code. Counsel submitted that there was no evidence that the illicit drugs caused the onset of any underlying psychiatric illness, rather, a delirium.
Counsel for the accused contended that given the evidentiary circumstances, the State was unable to prove that the accused held the requisite intention for murder.
Relevant legal principles
Judge alone trial
In a trial by judge alone the judge is required to state the principles of law that have been applied in coming to a verdict.[2] I direct myself in respect to the following principles.
[2] Criminal Procedure Act 2004 (WA), s 120(2).
The fundamental principles in any criminal trial are the presumption of innocence and that the prosecution bears the onus of proving each of the elements of the offence charged beyond a reasonable doubt. If the State does not prove each element beyond reasonable doubt, then the charge is not proven and the verdict must be one of not guilty.
To the extent that it is necessary to draw inferences as to essential facts from the evidence, it is important to consider whether there are reasonable alternatives consistent with innocence. It is not permissible to draw an inference adverse to an accused person unless it is the only reasonable inference. This is an aspect of the requirement that a charge be proved beyond a reasonable doubt.
The State relied upon expert witnesses Dr Junkerstorff, Dr Brett and Professor Martin-Iverson and the defence relied upon expert witnesses Dr Wojnarowska and Dr Fenner. I approach my assessment of the respective expert witnesses as I would for any other witness. I am not bound to accept and act upon any witness' evidence, including an expert witness' evidence. I may reject expert evidence if there is other evidence to support my findings or if I conclude that the expert's evidence is unreliable.
In Hone v The State of Western Australia,[3] the Court of Appeal considered the proper approach to expert evidence which is not contradicted at trial. Both Steytler P and Miller JA stated that whilst neither a jury nor a judge sitting alone are bound to accept and act upon expert evidence, where there is no evidence or circumstance to contradict that evidence a verdict cannot be given contrary to that evidence.[4]
[3] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138.
[4] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138, [13] (Steytler P), [124] (Miller JA).
In assessing the evidence and reaching a verdict it is important to guard against any feelings of prejudice or sympathy. Such feelings must be put aside and the question of guilt determined on an objective and dispassionate assessment of the evidence.
The accused did not give evidence. It was the accused's right not to do so and no adverse inference may be drawn against the accused in respect of his election not to give evidence.
Elements of the offence of murder
The elements of the offence of murder are that the accused killed the deceased, the killing was unlawful, and that the accused did the act with either an intention to kill or an intention to cause an injury to the deceased that was, objectively, of such a nature that was or was likely to endanger the deceased's life.
It is unlawful to kill any person unless the killing is authorised, justified or excused by law.[5] A person who causes the death of another, either directly or indirectly, is deemed to have killed that other person.[6] In this case, the accused accepted that he did an act that caused the death of the deceased.
[5] Criminal Code, s268.
[6] Criminal Code, s 270.
Whether a killing constitutes the offence of murder depends upon the intention of the accused at the relevant time.
In this case the first three elements are not in dispute. The accused accepts that he inflicted injuries to the deceased that caused the deceased's death and that the killing was not authorised, justified or excused by law. The only element that is in issue is the fourth element of specific intent.
The intention to cause death or cause an injury that objectively is life endangering or likely to endanger life must have been held by the accused at the time of the doing of the act or acts that caused the death. Such an intention does not have to be held for a long time; it may be held only momentarily. Premeditation or a plan to kill is not required, though if such a plan was made it would be relevant in considering whether an intent to kill existed at the relevant time. An intention to kill is a state of mind and, as such, will usually be proven by inference from the circumstantial evidence. The question is whether the evidence establishes that the only reasonable inference is that the accused held the requisite intention for murder at the time he did the act that caused the death of the deceased.
Inferences
In this case the prosecution relies on circumstantial evidence to establish the intent of the accused at the time. Circumstantial evidence is evidence of the surrounding circumstances relating to an event or occurrence. It can be contrasted with direct evidence; that is evidence of that event or occurrence as observed by a witness or recorded by some device. Where the fact in issue is a state of mind, as here, it is not uncommon for circumstantial evidence to be relied upon in order to prove that state of mind.
Circumstantial evidence is not necessarily any less reliable than direct evidence. Indeed, it may be more reliable in some instances because direct evidence can be the product of subjective interpretation and the fallibility of human perceptions and memory, whereas evidence of surrounding factual circumstances may be clear, objective and uncontested. This is not to say that some circumstantial evidence may not suffer from the same issues. It is important, therefore, to assess the weight of any evidence without any assumptions based on the category into which it falls. However, there are some important considerations that arise in respect of circumstantial evidence and the inferences that can be drawn from it.
Inferential reasoning is not speculation. Inferential reasoning is the drawing of a logical deduction from the proven facts. Inferential reasoning is not in any way a lesser form of coming to a conclusion than seeing something directly, but there are special rules that relate to it. When drawing inferences it is important that the evidence should not be looked at in a piecemeal way to determine what conclusions can be drawn from each part of the evidence when viewed in isolation. Rather, the whole of the evidence should be considered together to see what inferences can be drawn. A question or doubt that may arise where one piece of evidence is looked at in isolation may be resolved when the whole of the evidence is considered. A circumstance should not be rejected because, considered alone, no inference of guilt can be drawn from it. Further, a number of pieces of evidence that would not lead to an inference of guilt beyond reasonable doubt when taken separately, may establish guilt to that standard when taken together. Circumstantial evidence can cumulatively eliminate other possibilities. On the other hand, in some cases deficiencies in individual aspects of the evidence will not be resolved by other aspects of the evidence and those deficiencies may be sufficient to create a reasonable doubt, either alone or when considered cumulatively.
An inference of guilt, that is an inference adverse to the accused, cannot be drawn unless it is the only inference that is reasonably open on the evidence. If there is an innocent explanation that is open then an inference of guilt cannot be drawn. In practical terms this means that the prosecution must exclude any reasonable inference consistent with innocence. If the evidence taken as a whole leaves open any reasonable hypothesis consistent with innocence it is my duty to acquit the accused. This is an aspect of the requirement that guilt in a criminal case be proven beyond reasonable doubt, because if the evidence allows for the reasonable possibility that the accused is innocent then guilt beyond reasonable doubt has not been established.
For an inference to be reasonable it must rest upon something more than mere conjecture; the possibility of innocence does not prevent a finding of guilt if the inference of guilt is the only inference reasonably open upon consideration of all the facts proven by the evidence. When a case against an accused person rests substantially upon circumstantial evidence a verdict of guilty will not be open unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. To be satisfied beyond reasonable doubt of the guilt of the accused it is necessary that his guilt should not merely be a rational inference but that it should be the only rational inference that the circumstances allow to be drawn.
Intention and intoxication
As I have observed, the relevant issue at trial was that of intoxication. Intoxication is not a defence to a charge. A person is not necessarily excused or relieved of liability simply because they are intoxicated.
Intoxication may be intentionally caused by a person or be caused without intention. Where the use of drugs has been voluntary, as here, intoxication is usually intentionally caused. In these circumstances intoxication does not relieve the person of criminal responsibility for their actions, but it is relevant to the question of whether a specific intent was held. A specific intent is an intent to cause a particular result.
It is necessary that both s 27 and s 28 of the Criminal Code be considered. That is because both sections must be read together.
Section 27 of the Criminal Code provides as follows:
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(2)A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
Section 28 of the Criminal Code provides:
(1)Section 27 applies to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means.
(2)Section 27 does not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not.
(3)When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.
It is not necessary in this case to outline the relevant legal principles and authorities concerning s 27 of the Criminal Code. I outlined the applicable legal principles and authorities in The State of Western Australia v Pal.[7] I have considered those principles in determining this matter. In this case the question is not whether the accused was of unsound mind but whether he held the specific intention for the offence of murder at the relevant time.
Intoxication - applicable legal principles
[7] The State of Western Australia v Pal [No 2] [2023] WASC 449.
Where there is a question about whether an accused intentionally caused themself to become intoxicated, the onus is on the accused to prove, on the balance of probabilities, that that they did not intentionally cause themself to become intoxicated.[8] The accused does not dispute that he voluntarily consumed the illicit substances and thereby, became intentionally intoxicated.
[8] The State of Western Australia v Daly [2019] WASC 386, [37], [81]; The State of Western Australia v Davidson [2022] WASC 70, [47].
In Stefanski v The State of Western Australia,[9] the proper construction in respect of both s 28(1) and s 28(2) of the Criminal Code was determined. It is not necessary to outline the Court of Appeal's consideration of s 28(1) for the reason that the accused was intoxicated at the relevant time, and that it is not being asserted that the intoxication was caused without intention of his part.
[9] Stefanski v The State of Western Australia [2022] WASCA 5.
For completeness, I will outline the Court of Appeal's consideration of s 28(2) of the Criminal Code. The coram in Stefanski each wrote separate judgments but each agreed on the conclusion, which Buss P expressed as follows:[10]
[10] Stefanski vThe State of Western Australia [2022] WASCA 5, [152] - [154], [158].
So, by s 28(2), if an accused has intentionally caused himself or herself to become intoxicated or stupefied, the accused is not relieved of criminal responsibility if the intoxication or stupefaction deprives him or her of one or more of the capacities referred to in s 27(1). See Arnold [44].
However, s 28(2) does not preclude an accused, who has intentionally caused himself or herself to become intoxicated or stupefied, from relying upon s 27(1) if the accused is able to prove, on the balance of probabilities, that at the time of doing the act or making the omission:
(a)the accused suffered from a 'mental impairment', as defined in s 1(1), independently of and without regard to the accused's intoxication or stupefaction; and
(b)at the time of doing the relevant act or making the relevant omission, the accused was in such a state of 'mental impairment', as defined in s 1(1), as to deprive him or her of at least one of the capacities referred to in s 27(1), independently of and without regard to the accused's intoxication or stupefaction.
Section 28(2), read and construed having regard to s 27 and in the context of s 28(1), does not have the effect that s 27(1) does not apply, in any circumstances, to an accused who has intentionally caused himself or herself to become intoxicated or stupefied. There is no warrant for that conclusion in the text of s 28(2) when regard is had (as it must be) to the wider statutory context and the purposes of s 26, s 27 and s 28.
…
The answer to the Second Issue of Construction is that, in the case of an accused who intentionally caused himself or herself to become intoxicated, the accused may rely upon the excuse in s 27(1) if the accused can prove that it was a 'mental impairment' (as defined in s 1(1)), independently of and without regard to the intoxication, which caused the accused to be deprived of a relevant capacity (referred to in s 27(1)).
The meaning of 'intoxication' in s 28(1) & s 28(2) of the Criminal Code
In the State of Western Australia v Herbert,[11] Jenkins J considered the meaning of 'intoxication' in s 28(1) and s 28(2), and the meaning of 'disordered' in s 28(1), stating as follows:
[11] The State of Western Australia v Herbert [2017] WASC 101, [58] - [59].
In The State of Western Australia v Brown [No 3] [2013] WASC 349 and The State of Western Australia v Lang [No 2] [2016] WASC 206, I considered the meaning of the Criminal Code s 28. I see no reason to change the views which I expressed in those cases. In Brown, I said:
'[T]he Macquarie Dictionary defines 'intoxication' as including:
1.inebriation; drunkenness;
2.Pathol. Poisoning;
3.the act of intoxicating; and
4.overpowering action or effect upon the mind.
The Shorter Oxford Dictionary defines 'intoxication' as including:
1.The action of poisoning; the state of being poisoned; an instance of this.
2.The action of stupefying with a drug or alcoholic liquor; the making drunk or inebriated; the condition of being so stupefied or made drunk.
3.fig.
(a)The poisoning of the moral or mental faculties; a cause of this.
(b)The action or power of highly exciting the mind; elation beyond the bounds of sobriety.
…
In my view, the most appropriate definition of 'intoxication' is 'overpowering action or effect on the mind'.
…
The Macquarie Dictionary defines 'disordered' to mean 'in confusion' or 'mentally ill'. The online Oxford English Dictionary defines 'disordered' relevantly to mean:
1.put out of order, thrown into confusion; disarranged, confused, irregular; and
2.affected with bodily or mental disorder; out of health; deranged; morbid.
In my view, 'disordered' in s 28 means confused or disarranged. Thus, put in other words, the Criminal Code s 28 states that s 27 applies to a person whose mind is confused or disarranged by the overpowering action or effect on the mind of a drug, if the intoxication is caused without intention on his part. It is clear from what I have said that it is unnecessary for the purpose of s 28(1) that a large amount of the drug has to be consumed [45] - [49].
In Lang I said:
Using the same definition of intoxication, s 28(2) says that s 27 does not apply to a person who has intentionally caused his mind to be intoxicated; that is, subject to the overpowering action or effect of a drug or liquor.
I am of the opinion that s 28(2) refers to a person who has 'become intoxicated' at the time of the commission of the relevant acts.
The common law and cases on s 28 and similar statutory provisions do not suggest that an accused who has intentionally caused themselves at any point in the past to become intoxicated cannot rely on the defence of insanity. Neither does the State submit that is the meaning of the section. Rather, the State submits that s 28(2) says that the defence of insanity does not apply to a person who has intentionally caused himself to become intoxicated at any time in the past and that past intentional intoxication has contributed in some way to the deprivation of a relevant capacity.
In my opinion that is not the law. … That is, intentional intoxication disentitles, even a mentally impaired person, from relying on the defence of insanity. However, it is intentional intoxication at the time of the commission of the offence which the law is concerned about. In this respect I am of the view that s 28(2) reflects the common law as stated by Lord Birkenhead LC in Director of PublicProsecutions v Beard [1920] AC 479:
'But drunkenness is one thing and the diseases to which drunkenness leads are different things, and if a man by drunkenness brings on a state of disease which causes such a degree of madness, even for a time, as would have relieved him from responsibility if it had been caused in any other way, then he would not be criminally responsible.'
Thus, if an accused 'brings on' mental impairment by past intoxication with drugs or liquor, s 28(2) does not disentitle him from relying on the defence of insanity, unless he is intentionally intoxicated at the time he does the relevant acts...
On the other hand, I accept that the state of intoxication referred to in s 28(2) may be longer than the time the relevant accused subjectively experienced the effects of the drugs or liquor. In this respect, I agree with the conclusion of the Queensland Court of Appeal in R v Clough [2010] QCA 120 that the ordinary meaning of intoxication is wide enough to encompass more than comparatively short-term elation or stimulation.
It is a question of fact whether the accused was intoxicated and the accused's experience of the effect of the drugs or liquor may be only one of a number of matters relevant to that determination. Nevertheless, the drugs or liquor must still be found to have had an overpowering action or effect on the accused's mind at the time of the commission of the relevant acts, in order for him to be 'a person who has intentionally caused himself to become intoxicated' so that s 28 (2) can apply and s 27 does not apply [36] - [42].
In The State of Western Australia v Knock,[12] Derrick J adopted the statements of Jenkins J in The State of Western Australia v Herbert in relation to the meaning of intoxication in s 28(1) and s 28(2) of the Criminal Code and observed:[13]
Therefore, a person's 'mind is disordered by intoxication' within the meaning of s 28(1) if their mind is disordered by the overpowering action or effect of a drug or alcohol. Similarly, a person 'becomes intoxicated' within the meaning of s 28(2) if their mind becomes subject to the overpowering action or effect of a drug or alcohol.
[12] The State of Western Australia v Knock [2020] WASC 246.
[13] The State of Western Australia v Knock [2020] WASC 246, [56].
Derrick J stated that the drugs or alcohol must be found to have had an overpowering effect on the person's mind at the time of the doing of the relevant act in order for the person to be 'a person who has intentionally caused himself to become intoxicated' within the meaning of s 28(2).[14]
[14] The State of Western Australia v Knock [2020] WASC 246, [56].
Derrick J also stated that in both s 28(1) and s 28(2), the notion of intention is linked to the state of intoxication. That is, the result of ingesting drugs or alcohol rather the act of doing so. Accordingly, the fact that a person has voluntarily consumed drugs or alcohol which results in them becoming intoxicated will not of itself be sufficient to bring them within the terms of s 28(2). It is only where the person voluntarily consumes drugs or alcohol with the intention of causing themselves to become intoxicated, and they become so intoxicated at the time of doing the relevant act or making the relevant omission, that s 28(2) can operate to preclude them from relying on s 27(1). I respectfully adopt Derrick J's reasoning.
Derrick J in The State of Western Australia v Knock also adopted and applied the observations of Jenkins J in The State of Western Australia v Herbert that the state of intoxication referred to in s 28(2) may be longer than the time the relevant accused subjectively experienced the effects of the drugs or liquor.
In respect to the meaning of 'stupefaction' in s 28(2), Derrick J stated that there are no material differences between the meanings of intoxication and stupefaction in s 28(2).[15] I respectfully adopt Derrick J's reasoning.
[15] The State of Western Australia v Knock [2020] WASC 246, [58].
In TheState of Western Australia v Davidson,[16] Mazza JA adopted the meaning given to the word intoxication by Jenkins J in The State of Western Australia v Herbert but observed that 'in my view, there is room for a construction of the word which is less demanding'.[17] I agree with Mazza JA. I must apply her Honour's construction of the word intoxication.
[16] The State of Western Australia v Davidson [2022] WASC 70.
[17] The State of Western Australia v Davidson [2022] WASC 70, [49].
Mazza JA adopted Jenkins J's statement that the state of intoxication referred to in s 28(2) may be longer than the time the relevant accused subjectively experienced the effects of the drugs or liquor. Mazza JA referred to the agreement of Jenkins J with the conclusion of the Queensland Court of Appeal in R v Clough (No 2),[18] that the ordinary meaning of 'intoxication' is wide enough to encompass more than comparatively short-term elation or stimulation.[19] In R v Clough (No 2) the Queensland Court of Appeal stated that the meaning of 'intoxication' includes the secondary effect of amphetamine consumption, that being a cerebral disturbance to a person's mental state which can last considerably longer than the primary effect of the methylamphetamine 'high'.[20] I also agree with the conclusion of the Queensland Court of Appeal in R v Clough (No 2) regarding the width of the meaning to be given to intoxication.
Intention and specific intent
[18] R v Clough (No 2) [2010] QCA 120, [14].
[19] The State of Western Australia v Davidson [2022] WASC 70, [49].
[20] R v Clough (No 2) [2010] QCA 120, [7].
Intoxication is relevant to determining specific intent because it may affect the ability of a person to think clearly or appreciate the consequences of their acts. The fact that a person may do acts whilst intoxicated that they would not do if sober does not necessarily mean that they do not do them with a specific intention. The fact of intoxication, if found, is one of the circumstances that may be relevant to whether a person has the requisite intention for the offence of murder.
In respect to intoxication, in Viro v The Queen Gibbs J stated:[21]
In a case where there is evidence fit to be considered by a jury that the accused was intoxicated as a result of the consumption of drink or drugs, it is not enough to tell the jury that the Crown must prove beyond reasonable doubt that the accused had in fact formed the requisite special intent. They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or by a combination of both, may be regarded for the purpose of ascertaining whether the special intent in fact existed. It should be explained that evidence that the accused was intoxicated will not in itself entitle him to an acquittal, because a person when intoxicated may form the necessary intent, and one who has formed the intent does not escape responsibility because his intoxication has diminished his power to resist the temptation to carry it out. However, the jury should be told that if, because of the evidence as to the effect of the intoxication or otherwise, they are not satisfied that the accused did in fact have the necessary intent, they must acquit of the crime which involves that intent.
[21] Viro v The Queen (1978) 141 CLR 88, 112.
I adopt the observations of Hall J in The State of Western Australia v Quartermaine:[22]
The question to be asked is whether it has been proven beyond reasonable doubt that the accused had the intent to kill at the relevant time. It is not enough to prove that he was capable of forming such an intent. However, if the evidence establishes that he was incapable of forming such an intent then, clearly, it would be impossible for the element of specific intent to be proven. The extent to which intoxication may have affected the ability of the accused to form an intent is, therefore, relevant, but proof that the accused had such an ability does not alone prove that he had the necessary intent.
Intoxication may vary as to its nature and degree. Different substances can produce different effects. Substances can also affect different people in different ways. What is relevant is the nature and degree of intoxication experienced by the accused at the time. Taking into account the effects of that intoxication, has it been proven beyond reasonable doubt that the accused intended to kill the deceased?
Expert opinion evidence was called in this case from experts regarding the effects of methylamphetamine and cannabis and the likelihood that the accused was experiencing psychotic delusions at the time of the killing. Expert evidence is opinion evidence based upon experience and learning. I am conscious that whilst expert opinion is relevant it is not determinative of any questions that I must answer. As the trier of fact it is a matter for me whether I accept or reject the expert evidence, however I should not reject expert evidence that is unchallenged.
Intoxication may also be relevant in a more general way. It may be relevant to the state of memory or the conduct of the accused. In drawing inferences from the words and actions of an intoxicated person it is important to take into account that intoxicated people may not act with same degree of care for what they say or thought about their actions as a sober person.
[22] The State of Western Australia v Quartermaine [2020] WASC 458, [31] ‑ [34].
Accordingly, the question to be determined is whether the State has proven beyond a reasonable doubt that the accused actually held the requisite intent at the relevant time. If I find that the accused was capable of forming such an intent, it is necessary that having that ability and in light of the entire evidence, the accused actually had the intention at the relevant time.
In determining whether the accused had the specific intent at the relevant time, the degree of intoxication experienced by the accused is a highly relevant fact but is not determinative. I must consider the entire circumstances of the incident.
In order to kill, the accused must be aware of what he is doing, that he is doing it to a person, and that his purpose is to cause the death of that person or an injury likely to endanger their life.
Whether a person lacked one of the capacities under s 27 of the Criminal Code may indicate the nature and degree of intoxication.[23] In this case, the expert evidence supports a finding that the accused lacked one or more of the capacities. However, there is no contention in this case that the circumstances afford the accused a defence of unsoundness of mind.
[23] The State of Western Australia v Quartermaine [2020] WASC 458.
Evidence received at trial
The overall factual circumstances were not in dispute at trial. The State tendered a number of witness statements by consent and called a limited number of witnesses whose testimony was not largely contested. The contested evidence concerned the expert witnesses.
The State called witnesses to give testimony, namely paramedics Mr Bowring and Mr Vincent and police officers Senior Constable Emery and Senior Constable Smith. In addition, the State relied upon testimony from Professor Martin-Iverson, toxicologist, Dr Brett, psychiatrist, and Dr Junckerstorff, forensic pathologist. The State tendered a number of other witness statements by consent.
The accused elected not to give evidence but adduced testimony from Dr Wojnarowska, psychiatrist, and Dr Stephen Fenner, psychiatrist.
I will outline the relevant aspects of each of the witnesses' evidence.
Outline of witnesses who gave oral testimony at trial and witness statements tendered
The State relied upon oral testimony from four witnesses who were the first responders at the incident, namely Mr Bowring (paramedic), Mr Vincent (paramedic), Senior Constable Emery and Senior Constable Smith. I will outline the salient aspects of their testimony. I will then provide an outline of the witness statements tendered by the State with consent of the defence.
Mr Bowring (Paramedic - St John Ambulance)
Prior to the commencement of Mr Bowring's evidence, the State tendered the emergency telephone call made by the deceased at 2.00 am on 10 August 2020.[24]
[24] ts 54 (11/03/2024); Exhibit 1, 000 telephone call made by the deceased at 2.00 am on 10 August 2020.
Mr Bowring gave evidence that at approximately 2.00 am on 10 August 2020 he was advised to attend the premises as a 'priority one'.[25] At 2.06 am, the ambulance arrived at the premises. A floorplan of the premises was tendered into evidence.[26] There was no dispute at trial concerning the location of the incident inside the premises.
[25] ts 55 (11/03/2024).
[26] Exhibit 3, Floor plan of 43 Palmerston Street, St James.
Upon arriving at the premises, the deceased informed the paramedics that the accused had taken a drug named ayahuasca and also benztropine, lorazepam and olanzapine.[27]
[27] ts 57 (11/03/2024).
Mr Bowring stated that he observed the accused lying on a bed rubbing his head by moving his arm in a continuous motion. He did not engage with the paramedics at that time.[28] The deceased expressed the view that she wanted her son taken to hospital and that she was not comfortable with his behaviour.
[28] ts 58 (11/03/2024).
Mr Bowring then engaged the accused in conversation. Mr Vincent asked the accused 'how he was doing'. To that question, the accused answered 'yeah, yeah, I am fine'.[29] The accused appeared dishevelled with his pupils dilated. His mother gave him a drink of water by bringing the cup to his lips. The accused changed his pants due to him urinating. Mr Bowring returned to the ambulance to make preparations to take the accused to the hospital. Upon his return the decision was made to telephone the police.[30] The reason for that decision was subject to examination.
[29] ts 59 (11/03/2024).
[30] Exhibit 2, Telephone call to St John Ambulance State Operations Centre made by Mr Bowring at 2.23 am on 10 August 2024.
Mr Bowring observed that the accused was walking around the room and pushing past things. Mr Bowring stated that the demeanour of the accused had changed from just being passive.[31] Mr Bowring stated that he became concerned for his safety. The accused's voice became louder and he was using expletives.[32]
[31] ts 62 (11/03/2024).
[32] ts 67 (11/03/2024).
Mr Bowring stated that the accused and the deceased commenced moving in the direction of the lounge when he doubled back and came through the hallway and into the kitchen. The deceased followed him into the kitchen.[33] At that time, Mr Bowring heard the noise of cutlery being moved, then he heard the deceased say 'stop. Don't. He's hurting me. He's stabbing me'.[34] Mr Bowring could hear the sound of stabbing noises and the deceased continuing to shout, 'he is stabbing me'. At that time, whilst the deceased was shouting, she fell into the paramedics' line of sight. When the deceased came into the line of sight, Mr Bowring stated that he observed the accused stabbing the deceased. The deceased was crawling away along the ground at this time.[35]
[33] ts 68 (11/03/2024).
[34] ts 69 (11/03/2024).
[35] ts 71 (11/03/2024).
The paramedics then activated what is referred to as a 'code black', requiring immediate assistance and both paramedics left the premises at that time. Upon the police arriving, the first police officer entered the premises whilst the paramedics remained outside. At this time, Mr Bowring received a telephone call from the St John Ambulance State Operations Centre in response to the code black alert.[36] As soon as the premises was secure, Mr Bowring stated that the paramedics re‑entered to attend to the deceased. Mr Bowring stated that the deceased was taken into an ambulance and transported to the hospital for treatment.[37]
[36] Exhibit 4, Telephone call from the St John Ambulance State Operations Centre to Mr Bowring in response to Mr Bowring's code black alert at 2.57 am on 10 August 2020.
[37] ts 75 ‑ 78 (11/03/2024).
In cross‑examination, Mr Bowring stated that he did not observe the accused's eyes being grossly dilated,[38] but did agree that his pupils were dilated and that his facial expression was vacant. Mr Bowring stated that when the accused was asked whether he was okay, he stated that he was.[39] Mr Bowring stated that when the accused stood up he appeared to be disorientated. Mr Bowring stated there was no direct threat made to them but it was necessary, in his opinion, to get the police for reasons of safety.
[38] ts 86 (11/03/2024).
[39] ts 87 (11/03/2024).
Mr Bowring stated there was a period of interaction and confrontation with the accused using expletives, but that only an abridged version had been recorded in his written statement to the police. Mr Bowring stated that he observed that the deceased wanted to care for her son and there was a confrontation occurring. Mr Bowring was cross‑examined as to whether his recollection was correct, in that he believed the accused was going to kill or hurt his mother and whether he had told Mr Vincent that belief. Mr Bowring agreed that it was not in his statement. Mr Bowring stated that it was an omission from his statement and the conversation that he had with Mr Vincent did occur.[40]
Mr Vincent (Paramedic - St John Ambulance)
[40] ts 108 ‑ 109 (11/03/2024).
Mr Vincent, paramedic, gave evidence that at approximately 2.00 am on 10 August 2020 he attended at the residence. Mr Vincent recalls attempting to communicate with the accused by shaking his shoulder whilst he was on the lounge. Mr Vincent stated that the accused appeared surprised but he stated that he was 'okay'.[41] The accused stated that he had ingested ayahuasca and benzodiazepine. Mr Vincent expressed the opinion that the accused 'seemed intermittently aware of what was happening'.[42]
[41] ts 116 (11/03/2024).
[42] ts 116 (11/03/2024).
Mr Vincent outlined the efforts made to make the accused stand and move towards a stretcher in order to take him to hospital. The accused moved towards the lounge and kitchen area with his mother following. At that time the decision was made by the paramedics to seek police assistance for the reason that the accused was intoxicated and that assistance may be required to take him to the hospital.
As Mr Vincent was standing near the lounge and front porch he heard shouting from the deceased's mother that she needed help and that she was being stabbed. Mr Vincent observed the deceased fall to the ground near the kitchen and lounge with a knife in her back. He then observed the accused stabbing the deceased further with the knife.[43] The paramedics then retreated from the scene. Upon the police arriving, the paramedics provided treatment to the deceased and she was taken to hospital where she was pronounced dead.[44]
[43] ts 120 (11/03/2024).
[44] ts 121 (11/03/2024).
In cross-examination, Mr Vincent confirmed that Mr Cameron was looking blankly but only intermittently.[45] Mr Vincent stated that he could not remember whether the accused's eyes were wide. Mr Vincent stated that at times the accused was lucid but then he appeared not to be hearing what was being said.[46] Mr Vincent recalled hearing the deceased trying to cajole the accused towards the ambulance by saying 'let's go'. Mr Vincent stated that just prior to the deceased calling out for help that she was being stabbed he heard the cluttering of cutlery.[47] He then heard the deceased say that 'he is stabbing me'.
Mr Emery (Senior Constable - WA Police)
[45] ts 123 (11/03/2024).
[46] ts 125 (11/03/2024).
[47] ts 128 (11/08/2024).
Senior Constable Emery attended at the premises at 2.25 am on 10 August 2020. Upon arriving, the officer activated his body worn camera and entered the premises.[48] The footage from the body worn camera was tendered into evidence.[49] I have reviewed and considered that video footage. The body worn camera footage produced by Mr Emery is consistent with his testimony. The defence did not submit otherwise.
[48] ts 130 (11/03/2024).
[49] Exhibit 5, Body worn camera footage from Officer Emery on 10 August 2020.
Upon entering, Mr Emery held his firearm and observed the deceased and then continued to the games room where the accused was sat on a couch. Mr Emery stated that he 'illuminated' the accused with his weapon mounted light but that he 'didn't flinch'.[50]
[50] ts 131 (11/03/2024).
Mr Emery stated that he approached the accused but noticed that he had a knife on his chest. As he approached he observed that the accused gave 'a very slight sort of acknowledgment'. Mr Emery stated that he told the accused to put his hands up and not move. At that time, Mr Goodbody moved forward to take the knife. A struggle started between the accused and the two police officers. Mr Emery stated that he then put his firearm away and took out his taser, which he discharged to stun the accused. Another officer used a baton to pry the accused's hands from under his body in order to place handcuffs on him.[51]
[51] ts 134 (11/03/2024).
Mr Emery stated that after the accused was restrained he asked him whether he was injured, to which he answered 'no'. The officer recalled that when the accused was walking to the ambulance he was calling for the police and for help.[52]
Mr Smith (Senior Constable - WA Police)
[52] ts 135 (11/03/2024).
At 5.23 am on 10 August 2020, Senior Constable Smith attended at the premises to undertake duties as a physical material manager, coordinating the collection of exhibits. Mr Smith produced a 3D walkthrough of the premises, identifying the layout of the rooms of the premises.[53] Mr Smith identified the knife that was used as the weapon by the accused in the back games room area.[54]
Ms Woods (Ambulance Officer - St John Ambulance)
[53] Exhibit 6, 3D Walkthrough of the premises.
[54] ts 142 (11/03/2024); Exhibit 7, Five photographs of the knife seized from the games room outdoor area.
Ms Woods, ambulance officer, gave a written statement dated 10 August 2020.[55] At 2.34 am on 10 August 2020, Ms Woods arrived at the premises. Upon entering the premises, Ms Woods observed that the deceased was lying on the floor with blood on her torso area. Ms Woods observed a knife near the deceased's feet. Ms Woods assisted in providing medical intervention.
[55] Exhibit 22, Statement of Ms Woods dated 10 August 2020.
Ms Woods observed the accused at the rear of the premises with police officers. Ms Woods stated that as the accused was walked outside, he stated 'help me, call the police', and further he shouted 'mum'. Ms Woods entered the ambulance with the accused. She recalls the accused stated that he had felt depressed and that he wanted to end his life. A paramedic asked him whether this was the reason that he took the ayahuasca, to which did not reply. He confirmed that he had taken 'ayahuasca'. During the journey to the hospital the accused asked whether his mum was going to be alright on six to seven occasions. Ms Woods recalls the accused asking the police officer whether he was under arrest, to which the officer replied something like 'yes you are - on suspicion of murder'. The accused stated 'I hope my mum's alright, I hope she is okay' and 'I feel terrible. I hope I don't go to prison for murder'.
At 3.16 am the ambulance arrived at the hospital.
Ms Evans (Paramedic - St John Ambulance)
Ms Evans, paramedic, gave a written statement dated 10 August 2020.[56] At 2.34 am on 10 August 2020, Ms Evans attended the premises with Ms Woods. After entering the premises, Ms Evans observed the deceased in the front lounge room and assisted in placing a stretcher under her body. Ms Evans then placed the defibrillator on the deceased's chest, observing a cardiac output, and subsequently took the deceased to the ambulance.
[56] Exhibit 23, Statement of Ms Evans dated 10 August 2020.
Ms Evans observed that the accused was in the back room surrounded by police officers with his hands cuffed. Ms Evans introduced herself to the accused. Ms Evans recalls that the accused threw his head back. Ms Evans asked the accused whether he would 'come out to the ambulance', to which he answered 'yes'. Ms Evans stated that when the accused was outside, he said 'get me the police'. The accused was placed onto a stretcher and into the ambulance.
Ms Evans was the driver of the ambulance that transported the accused to the hospital. During the journey, Ms Evans recalls that the accused was fairly calm and subdued, and she heard him ask a couple of times if he was in trouble and whether his mother 'was ok'. The accused stated that he had taken ayahuasca 'four hours ago'.
Upon arriving at the hospital, the accused was taken inside at which time he asked whether his mum was dead. Ms Evans replied that she did not know.
Ms Melinda Parker (Paramedic - St John Ambulance)
Ms Parker, paramedic, gave a written statement dated 27 August 2020.[57] Ms Parker attended at the premises. Ms Parker observed the accused standing calmly with police officers and paramedics next to an ambulance.
[57] Exhibit 24, Statement of Ms Parker dated 27 August 2020.
Ms Parker accompanied Ms Woods and Ms Evans in the ambulance with the accused. Ms Parker stated that Ms Woods took the accused's blood pressure and confirmed he had a heart rate of 140 beats per minute, which is extremely high, and had high blood pressure. Ms Parker stated that the accused's eyes were fully dilated and were rolling into the back of his head. Ms Parker recalls that the accused asked whether his mum was alright. Ms Parker answered, 'I don't know'.
The police advised the accused that he had been arrested on suspicion of murder and advised him of his rights and that he was being recorded.
Ms Parker asked the accused what he had taken, to which he answered 'ayahuasca'. Ms Parker asked the accused whether he remembered what happened, to which the accused replied 'no'. Ms Parker stated that the accused remained lying on his back in the ambulance with his eyes dilated and rolling toward the back of his head. The ambulance took 20 minutes to arrive at the hospital.
Mr Wilson (First Class Constable - WA Police)
Mr Wilson, first class constable, gave a written stated dated 10 August 2020.[58]
[58] Exhibit 25, Statement of Mr Wilson dated 10 August 2020.
Mr Wilson stated that at 2.34 am on 10 August 2020, he arrived at the premises with Mr McComb. Mr Wilson stated that he observed a female lying down in the middle of the lounge room with a large amount of blood around her body. Mr Wilson then continued to a room to the right of the lounge room. At that time he heard a police officer say words to the effect 'don't grab the knife'.
Mr Wilson then observed the accused sitting in a lounge chair in the rear entertainment area. Mr Wilson held his firearm at this time. He then observed either Mr Goodbody or Mr Eley step into the field of his view, causing him to lower his firearm. Mr Wilson then stated that he observed the accused resisting arrest, causing Mr Emery to taser the accused. Mr Wilson told the accused 'give us your hands'.
While the accused was being handcuffed by officers he was asking 'what's going on'. Mr Wilson stated that the 'male appeared confused, intoxicated or suffering a mental health episode'. Mr Wilson was involved with the transportation of the deceased to the hospital.
Mr McComb (Police Constable - WA Police)
Mr McComb, police constable, gave a written statement dated 10 August 2020.[59]
[59] Exhibit 26, Statement of Mr McComb dated 10 August 2020.
Mr McComb stated that upon his arrival at the premises at 2.33 am on 10 August 2020, he observed Mr Wilson draw his firearm. Mr McComb said he then drew his taser as he entered the front door of the property. Mr McComb observed the deceased lying on the floor of the loungeroom in a pool of blood. Mr McComb then moved towards the entertainment area at the rear of the property and heard an officer state 'don't you grab that knife'.
Mr McComb observed the police officers standing in the entertainment area facing the accused, who was sitting on the couch. At that time Mr McComb drew his firearm and pointed it towards the male accused. Two police officers then ran towards the accused and began restraining him. Mr McComb then holstered his firearm. During the altercation Mr McComb drew his taser and yelled 'taser, taser' whilst pointing the taser towards the accused. The accused was then physically restrained. Mr McComb observed that the accused's pupils were dilated and that he suspected that he was substance affected. At that time Mr McComb recalls the accused asking, 'what's going on'. Mr McComb said that the accused was resisting arrest with the consequence that the officer and the accused fells towards the ground. At that time Mr McComb heard a taser being deployed by one of the officers. The accused was then restrained and handcuffed.
Mr McComb stated that he heard an officer inform the accused that he was arrested on suspicion of murder and gave him a formal caution.
Mr Mirco (First Class Constable - WA Police)
Mr Mirco, first class constable, gave a written statement dated 10 August 2020.[60]
[60] Exhibit 27, Statement of Mr Mirco dated 10 August 2020.
Mr Mirco stated that upon his arrival at the premises at 2.30 am on 10 August 2020, he activated his body worn camera. Mr Mirco observed the deceased lying on the floor. At that time he heard yelling from the rear of the property.
Upon entering the rear of the premises, Mr Mirco observed that the police officers were struggling with the accused on the ground. As the accused was being restrained, Mr Mirco returned to the front of the address to prepare a vehicle to take the accused into custody. Upon returning to the rear of the premises, Mr Mirco observed that a number of police officers were holding the accused down. Mr Mirco stated that the accused became compliant and at one point picked up his head from the floor and looked directly at him. Mr Mirco stated that the accused's eyes were wide open as though he was staring through him.
Mr Mirco and Mr Emery removed the taser probes from the accused. Mr Mirco recalls that when the accused was taken to the front of the property he was yelling a number of times 'help' and that he was stating 'call the police'. Upon entering the ambulance, Mr Mirco observed Mr Kitson advise the accused that he was under arrest on the suspicion of murder. The ambulance then left the premises to take the accused to hospital.
Mr Kitson (Police Constable - WA Police)
Mr Kitson, police constable, gave a statement dated 10 August 2020.[61] At approximately 2.30 am on 10 August, upon Mr Kitson arriving at the premises he activated his body worn camera. Inside the premises, Mr Kitson observed a female lying on the floor with blood. Mr Kitson heard yelling and observed several officers making attempts to secure the accused. Mr Kitson observed that the accused was near a green, two‑seat couch at the rear of the premises and was lying face down on the pillow. At that time the accused was resisting the police, who were trying to secure him with handcuffs.
[61] Exhibit 28, Statement of Mr Kitson dated 10 August 2020.
At that time Mr Kitson heard a police officer shout 'taser, taser'. Further, Mr Eley stated, 'give me your arm' whilst using his baton in an open position to prise the accused's arm from under his body.
Mr Kitson was present when Mr Goodbody arrested the accused on the suspicion of murder. The accused responded, 'yes, sir' when told that he was under arrest. When Mr Goodbody cautioned the accused he replied, 'yes, sir'.
Mr Kitson observed the accused was yelling whilst he stood near the ambulance stating, 'where's mum, is she sleeping' and 'help'. Further, he observed the accused shouting 'help, help' and 'call the police'.
Upon entering the ambulance, Mr Kitson introduced himself to the accused and asked him whether he remembered what was said to him in the premises regarding his arrest. To that question the accused replied 'yes'. Mr Kitson then asked, 'what was said mate' to which the accused stated, 'murder'. Mr Kitson then asked, 'so you were arrested on suspicion of murder, is that correct'. The accused murmured but Mr Kitson was unable to determine what was said. At that time Mr Kitson gave a formal police caution and informed him of his rights. The accused did not reply but started rolling his eyes back. The ambulance then departed to take the accused to hospital.
Mr Goodbody (First Class Constable - WA Police)
Mr Goodbody, first class constable, gave a written statement dated 10 August 2020.[62]
[62] Exhibit 29, Statement of Mr Goodbody dated 10 August 2020.
At approximately 2.30 am on 10 August 2020, Mr Goodbody attended at the premises with Mr Eley. Upon arriving at the premises, Mr Goodbody observed Mr Emery drawing his firearm and, along with another officer with his taser drawn, entering the property. Mr Goodbody also drew his taser. Upon entering he observed the deceased lying on the floor with blood surrounding her.
Mr Goodbody heard Mr Emery stating the words 'show me your hands, show me your hands'. Upon entering the area he observed the accused sitting on the couch with blood on his hands and with a red kitchen knife resting on his stomach. Mr Emery stated the words 'keep your hands where they are'. Mr Goodbody moved towards the accused and grabbed the knife with his left hand and then threw it to the back of the couch.
At this time the accused suddenly flinched as if he was going to grab the knife. Mr Emery shouted at the accused not to move. At that time the accused stated, 'what's going on'. The officers then were shouting at the accused to get on the ground and stop resisting. Mr Goodbody stated that the officers commenced wrestling with the accused as he was resisting attempts to put handcuffs upon him. At one point Mr Emery tasered the accused.
The accused was moved from the couch to the floor to assist in securing him. At that time Mr Goodbody stated the words, 'Callum, we're all recording with our cameras and you're under arrest for murder, do you understand'. To that statement the accused stated, 'yes, sir'. Mr Goodbody then further stated the words 'okay, you don't have to answer our questions if you don't want to, but it will all be recorded and can be used in court, do you understand'. To that question the accused stated, 'yes, sir'. Mr Goodbody advised the accused that he had 'the right to a lawyer and to contact a family member or friend'. Further, Mr Goodbody recalled that one of the police officers asked the accused whether he was injured and that he responded that he was not.
Mr Goodbody produced body worn camera footage of his attendance at the premises.[63] I have viewed and considered the video footage. The body worn camera footage is consistent with the statement of Mr Goodbody. The defence did not submit otherwise.
Mr Eley (Police Constable - WA Police)
[63] Exhibit 17, Body worn camera footage from Officer Goodbody on 10 August 2020.
Mr Eley, police constable, gave a statement dated 10 August 2020.[64]
[64] Exhibit 30, Statement of Mr Eley dated 10 August 2020.
At 2.30 am, on 10 August 2020, he attended at the premises. Upon his arrival, he observed Mr Emery entering the premises with his firearm drawn. Upon entering the premises, he observed the female victim lying down in the living room with blood near her head and chest area. At that time he heard Mr Emery shout the words 'show me your hands'.
Mr Eley then moved to the rear of the premises where he observed the accused sitting on a couch covered in blood, with his hands above his head and a red knife lying across his chest. Mr Emery continued to speak to the accused saying 'keep your hands where I can see them'. Mr Eley observed Mr Goodbody move forward and grab the knife off the accused's chest and throw it to the side. At that time the accused then began to struggle with the officers. Mr Eley assisted by grabbing one of the accused's hands. Mr Eley then made two closed baton strikes to the accused's shoulder blade. The officers then apprehended the accused and placed him in handcuffs. Mr Eley observed Mr Goodbody give a caution to the accused and heard the accused reply 'yes, sir'.
Ms Mann (Senior Police Constable - WA Police)
Ms Mann, senior police constable, gave a statement dated 11 August 2020.[65]
[65] Exhibit 31, Statement of Ms Mann dated 11 August 2020.
On 10 August 2020, Ms Mann attended at Fiona Stanley Hospital to assist in guarding the accused.
At 3.15 pm, upon arrival at the hospital, she observed the accused lying on a bed. Ms Mann introduced herself to the accused. Ms Mann stated that the accused then started to cry, yell and wail. Ms Mann stated the accused said 'I killed my mum. I wanted a hug. Then I woke up and she had a knife in her chest. I haven't used meth for 9 months. I just got my life back on track'.
Mr Gibson (Police Constable - WA Police)
Mr Gibson, police constable, gave a statement dated 10 August 2020.[66]
[66] Exhibit 32, Statement of Mr Gibson dated 10 August 2020.
On 10 August 2020, Mr Gibson was on duty with Ms Ziba. At 2.35 am, Mr Gibson arrived at the premises. At that time he observed the deceased lying on the floor with a large amount of blood near her body. Upon hearing yelling from the rear of the property, he went to the rear area. Mr Gibson heard a police officer stating 'taser, taser' before hearing the sound of a taser being deployed. Upon his arrival at the rear of the premises, he observed police officers attempting to restrain the accused. Mr Gibson observed that the accused had been handcuffed and that there was a red knife to the right of the couch. Mr Gibson assisted in restraining the accused.
Mr Gibson stated that a paramedic came into the room and said 'mum's gone'. Mr Gibson stated that the accused appeared intoxicated by a substance other than alcohol. Mr Gibson said that he observed that the accused had enlarged pupils and did not seem to be aware of where he was or what was going on. Mr Gibson stated that in his opinion, the accused was in a state of shock. Mr Gibson stated that the accused was informed by the police that he was under arrest for murder and a caution was given. Mr Gibson stated that the accused did not respond coherently.
The accused was informed by police that he was to be escorted to an ambulance. At that time the accused responded, indicating that he understood and he followed directions as he was escorted. Mr Gibson assisted in escorting the accused to the ambulance. Mr Gibson recalls the accused was calling for his mother multiple times and shouted the words 'help' and 'call police' several times. The accused stated that he was thirsty and asked for water on multiple occasions.
Mr Gibson's body worn camera was activated from the time of his arrival until his departure from the scene.[67] I have viewed and considered the video footage. The body worn camera footage is consistent with the statement of Mr Gibson. The defence did not submit otherwise.
[67] Exhibit 18, Body worn camera footage from Officer Gibson showing movement of the accused towards the ambulance on 10 August 2020.
Mr Gibson's partner, Mr Ziba, travelled onboard the ambulance while he followed in a marked police vehicle.
Upon arrival at the hospital, Mr Gibson observed the accused responding to medical staff and answering their questions. The accused stated that he had used a drug called ayahuasca. The accused asked medical staff about the welfare of his mother multiple times. At that time a medical doctor attended the room and asked the accused questions about what he remembered and what had happened. To that request, the accused confirmed that he had heard voices in his head and that he remembered having a knife and stated that he got it from the kitchen.
Mr Ziba (First Class Constable - WA Police)
Mr Ziba, first class constable, gave a statement dated 10 August 2020.[68]
[68] Exhibit 33, Statement of Mr Ziba dated 10 August 2020.
On 10 August 2020, Mr Ziba was on duty in company with Mr Gibson. At 2.35 am, Mr Ziba arrived at the premises. At that time, Mr Ziba recalls that he could hear a male shouting from inside the property. Upon entering the premises, Mr Ziba observed the deceased lying on the floor and he heard a distinctive crack, which was the police taser being deployed. Upon moving towards the rear of the premises, he observed the accused struggling with a number of officers. Mr Ziba assisted in securing the accused with handcuffs.
Mr Ziba observed a police officer give the accused his rights confirming that he was under arrest on the suspicion of murder. Mr Ziba recalls that the accused made incoherent noises in response to his rights. Along with other officers, Mr Ziba escorted the accused to the ambulance.
At 3.03 am, the ambulance left the premises with Mr Ziba accompanying the accused. At 3.10 am, whilst in the ambulance, Mr Ziba recalls that the accused stated 'I feel disgusted. I hope my mum is ok. Am I going to jail'. Whilst travelling in the ambulance, Mr Ziba observed the accused's eyes rolling back in his head and that he appeared to be affected by an unknown substance.
At 3.19 am, the ambulance arrived at the hospital. Whilst present at the hospital, Mr Ziba heard the accused ask medical staff 'is my mum dead, is my mum dead? I'm shocked'.
Mr Ziba stated that during his initial arrest, the accused was shouting for the police to be called and that he called the present police officers 'fake police'. Further, Mr Ziba stated that in his presence, the accused was compliant but at times he appeared dazed and confused.
Mr Ziba produced body worn camera footage showing the arrest of the accused and showing the accused in transit in the ambulance to hospital.[69] Further, Mr Ziba produced body worn camera footage showing the accused at hospital undergoing assessment.[70] I have viewed and considered the two portions of body worn camera footage. The body worn camera footage is consistent with the statement of Mr Ziba. The defence did not submit otherwise.
Dr Junkerstorff (Forensic Pathologist - PathWest WA)
[69] Exhibit 19, Body worn camera footage from Officer Ziba showing the arrest of the accused and conveyance to Fiona Stanley Hospital on 10 August 2020.
[70] Exhibit 20, Body worn camera footage from Officer Ziba showing accused at Fiona Stanley Hospital undergoing medical assessment on 10 August 2020.
Dr Junckerstorff, forensic pathologist, gave testimony at trial and also produced two reports dated 1 September 2020 and 12 March 2021 respectively.[71]
[71] Exhibit 15, Forensic Pathologist Report of Dr Junckerstorff dated 1 September 2020; Exhibit 16, Supplementary Forensic Pathologist Report of Dr Junckerstorff dated 12 March 2021.
Dr Junckerstorff expressed the opinion that the cause of death was multiple sharp force injuries. Dr Junckerstorff identified 62 separate stab wounds (penetrating sharp force injuries) to the deceased's face, neck, arms, legs, back and chest.[72] Dr Junckerstorff produced 33 photographs of the 62 injuries.[73]
[72] ts 242 (12/03/2024).
[73] Exhibit 14, Bundle of 33 photographs referred to by Dr Junkerstorff.
The accused does not deny he inflicted the injuries to the deceased. I will provide an outline of the main injuries. The nature and extent of the injuries is a relevant factor in determining the state of mind of the accused at the time he inflicted the blows with the knife that caused the injuries to the deceased.
Dr Junckerstorff expressed the opinion that it was a combination of the injuries that were fatal but that there were three injuries that were most significant. Dr Junckerstorff stated that the most significant injuries included the injury to the right side of the chin, the injury to the upper right side of the chest and injuries to the back of the deceased.[74]
[74] ts 255 (12/03/2024).
In respect to the injury to the chin, Dr Junckerstorff stated that this internal injury cut completely through an artery in the side of the neck, being the superior thyroid artery that supplies the thyroid gland. The consequence of the cut to the superior thyroid artery is that the arterial pressure is higher than the venous pressure so one would expect greater bleeding in that region. The superior thyroid artery is a small artery compared to the femoral arteries. The superior thyroid artery will initially spasm and contract and reduce the blood loss, but the artery will open up again causing bleeding into the soft tissues.[75] Photograph number 14 showed the severity of the injury with the statis depth of the wound estimated at 73 millimetres.
[75] ts 256 (15/03/2024).
The second main injury was the wound to the right upper chest, which transected the axillary artery, which is the major artery supplying blood to the arm.[76] The wound track is through the fatty tissue beneath the skin and a muscle in the upper arm, and then transects the axillary artery. The injury to the axillary artery is by itself potentially fatal.
[76] ts 257 (15/03/2024).
The third injury was the wound to the right side of the back of the chest and referred to as injuries 4 and 6. Dr Junkerstorff stated that the difficulty with assessing the two injuries is that the wound track beneath the skin appears to merge. It is not possible to determine whether the wound track is due to injury 4 or 6, or a combination of both. The wound track goes through the muscles between the ribs of the chest, namely the eighth and ninth rib, and then through the eighth rib and into the lower lobe of the right lung. Consequently, there was a penetrating injury to the lung from either of the wound paths or a combination of both.
Dr Junckerstorff said that these injuries were life threatening if untreated given that the injuries will cause the lungs to collapse, resulting in respiratory difficulties.
Toxicology and psychiatric evidence at trial
The State relied upon Dr Brett, consultant psychiatrist, and Professor Martin-Iverson, toxicologist. Dr Brett's evidence comprised two reports dated 23 January 2021 and 10 January 2024 respectively, and his oral testimony. Professor Martin-Iverson's evidence comprised one report dated 18 October 2021 and his oral testimony.
The defence relied upon Dr Fenner, consultant psychiatrist, and Dr Wojnarowska, consultant psychiatrist. Dr Fenner gave oral testimony and Dr Wojnarowska's evidence comprised two reports dated 1 April 2023 and 6 July 2023 respectively, and oral testimony.
Toxicology Evidence
At trial, the State tendered a ChemCentre toxicology report in respect of the accused. At 7.55 am on 10 August 2021, a sample of blood was taken from the accused for examination.[77] The ChemCentre Certificate of Analysis dated 24 February 2021 with respect to the accused's sample relevantly states:
[77] ts 168 (12/03/2024).
BLOOD (PRESERVED) (F1018162-3) (J3241147) (Lab No 20T0910001) ALCOHOL Not Detected AMPHETAMINE 0.04 mg/L MOCLOBEMIDE Approx. 0.3 mg/L MORPHODROL Tentatively Identified N,N-DIMETHYLTRYPTAMINE (DMT) Detected OLANZAPINE Detected OXAZEPAM Detected PSILOCIN Detected TETRAHYDROCANNABINOL 1.7 ug/L OTHER COMMON BASIC DRUGS Not Detected BLOOD PRESERVED) (F1018162-3) (J3241147) (Lab No 20T0910002) ALCOHOL Not Detected N,N-DIMETHYLTRYPTAMINE (DMT) Approx. 13ug/L PSILOCIN Approx. 1 ug/L
Professor Martin-Iverson (Toxicologist)
Report of Professor Martin-Iverson
Professor Martin-Iverson stated in his written report that the level of amphetamine in the accused's blood was 1/1000th of the average peak after 25 mg dexamphetamine oral administration in men aged 18 to 45 years. Therefore, Professor Martin-Iverson expressed the opinion that amphetamine is unlikely to be relevant to the incident.[78]
[78] Exhibit 10, Report of Professor Martin-Iverson, p 2.
Professor Martin-Iverson stated that in respect to moclobemide, the therapeutic levels range from 0.5 to 1.5 mg/L and the half-life is 1‑2 hours after a single use but double that with continued use. Therefore, it is likely that moclobemide was pharmacologically active at the time of the alleged offending. Professor Martin-Iverson expressed the opinion that moclobemide would increase serotonin levels and increase the effect of both DMT and psilocin, both of which are drugs that activate serotonin receptors.[79]
[79] Exhibit 10, Report of Professor Martin-Iverson, p 2.
Professor Martin-Iverson stated that psilocybin causes the psychedelic effects of derealisation, depersonalisation phenomena, virtual hallucinations, thought disorders and changes in affect (emotion and emotional expression) and mood. Professor Martin-Iverson expressed the opinion that it is unlikely that this drug would have produced much 'psychedelic' effect on its own, even with the addition of moclobemide. However, it may have acted to increase the effect of DMT, along with moclobemide.[80]
[80] Exhibit 10, Report of Professor Martin-Iverson, p 2.
Professor Martin-Iverson stated that the accused 'would have been intoxicated at a severe level with the level of DMT, potentiated by the two other drugs (moclobemide especially and psilocin)'.[81]
[81] Exhibit 10, Report of Professor Martin-Iverson, p 3.
Professor Martin-Iverson confirmed that tolerance does not develop to ayahuasca as it does to other hallucinogens.[82]
[82] Exhibit 10, Report of Professor Martin-Iverson, p 3.
Further, Professor Martin-Iverson stated that given that the accused has a history of schizophrenia and reported auditory hallucinations, 'it is likely that the drugs were not only intoxicating but had precipitated a psychotic episode resulting in hallucinations, paranoid delusions and thought disorder such that he would not have had a grasp on reality. That is, an interaction amongst the two or three drugs and an underlying psychotic illness likely resulted in a loss of contact with reality'.[83]
Professor Martin-Iverson's oral testimony at trial
[83] Exhibit 10, Report of Professor Martin-Iverson, p 3.
During his oral testimony, Professor Martin-Iverson confirmed that amphetamine is a psychomotor stimulant and that the amphetamine level of 0.04 mg/L is 'quite low'; too low to have any significant impact on the accused and unlikely to have any relevance.[84]
[84] ts 170 (12/03/2024).
Professor Martin-Iverson stated that moclobemide is an inhibitor that reduces depression. The level of 0.3 mg/L is consistent with a 50 mg dose, which is lower than a therapeutic dose. The level is consistent with the accused having taken one 150 mg tablet. Given that there are ayahuasca preparations that contain moclobemide, Professor Martin-Iverson was unable to state the source of the moclobemide.[85]
[85] ts 171 (12/03/2024).
The level of cannabis supported a finding that the accused 'would not have been high on cannabis at the time of the incident'.[86]
[86] ts 174 (12/03/2024).
Professor Martin-Iverson stated that ayahuasca is usually a combination of two plants, one of which contains monoamine oxidase (MAO) inhibitors and the other is a shrub that contains DMT. The DMT component produces hallucinations.
In respect to DMT, the drug has a short half-life. If DMT is taken with MAO inhibitors the half-life is between 30 minutes and an hour.
In respect to the drug psilocybin, that drug and DMT act on the same receptors to produce hallucinations.
Professor Martin-Iverson stated that hallucinogens cause changes in 'perception and changes in feelings' and 'what is called depersonalisation, which is where you lose the sense of oneself'.[87] DMT causes hallucinations and dissociated changes in cognition and emotion with a degree of anxiety and agitation.[88] Professor Martin-Iverson stated that there is support for a view that persons with an underlying psychotic disorder are more prone to having a psychotic reaction when they take hallucinogenic drugs including DMT.
[87] ts 175 (12/03/2024).
[88] ts 176 (12/03/2024).
Professor Martin-Iverson stated that the accused's level of intoxication was very high or at the 'severe level'. The level of intoxication from DMT peaks about one hour after consumption but if taken with moclobemide or another MAO inhibitor, slows the metabolic rate but depending on the consumption, the peak would last much longer with the effect usually completely gone in approximately six hours.[89]
[89] ts 178 (12/03/2024).
Professor Martin-Iverson stated at that level of intoxication, the accused was most likely unaware of his surroundings because he was having a psychotic reaction.[90] Professor Martin-Iverson stated that it was 'possible and highly likely' that the accused had a loss of contact with reality.[91]
[90] ts 179 - 180 (12/03/2024).
[91] ts 192 (12/03/2024).
During her testimony I asked Dr Wojnarowska the following questions:[133]
[133] ts 328 - 329 (15/03/2024).
McGRATH J: In this case, on the body-worn camera footage, for example, I've observed the police at one point say to him, 'can you stand up?' And the accused stands up. 'We're going outside. Walk,' and he does that. I just wanted to raise just - he seemed to - the reality that whatever he's in, is able to understand the reality the policemen are in when they instruct him to do that?---Yes. Yes, your Honour. But again, when you look at this video footage, so there is this period of time that he - he responds. He obeys and he says, 'Yes, sir', on a number of occasions. But then he stands in front of the ambulance and screams, 'help'. Then he accuses the police of being a fake police. So that's what they mean by fluctuating levels of consciousness, of knowing where he is and what's happening.
Is it - for example, if his reality is, at that moment, they're fake police, a person in that position - this is just a proposition. I'm testing what you're saying. So he's outside - or a person is in a similar situation to Mr Cameron and he forms, in his reality, these are fake police. He could decide - couldn't he decide to lash out to escape and use violence as a means to escape?---He could.
And isn't that then, in that scenario, a person acting with purpose?---It is. But the object of the attack is not the real person that he wanted to attack because - - -
Yes. Yes. I understand. And the - and I'm putting the proposition in that case with the fake police, the person - his motivation or her motivation, say, is to get away from the fake police. The means by which that person gets away from the fake police is the infliction of violence. It's a false reality but in that reality - - -?---Yes.
- - - That person knows what they want to do?---Yes. For that moment. Yes.
Yes?---Yes.
Absolutely. And it's about that moment in time?---That moment.
Because putting other cases, we often have mental impairment cases where it's schizophrenia and a person is regrettably suffering from an acute schizophrenia and it's all agreed that that person is in this completely different reality and within that reality, they may look at somebody but rather than seeing a police officer they see maybe a KGB agent from the old Soviet Union?---Yes.
It's completely false, but they're so fearful they inflict violence and they've got to inflict violence to save themselves?---Yes.
They're acting with purpose then, aren't they, to use your word?---Yes.
Dr Wojnarowska stated that in her view, Mr Cameron's cognition was impaired by the high levels of DMT with a high level of impairment.[134]
[134] ts 331 - 332 (15/03/2024).
In respect to intention, I asked Dr Wojnarowska the following questions:
McGRATH J: Dr Wojnarowska, in your report at page 16, paragraph 83, that's before you?---Yes.
So I was looking at the first and penultimate line, you say:
There was no evidence of prior aggression towards his mother who called the ambulance and indicated his risk of violence was low at that time.
You've given that evidence?---Yes.
You then go on to say:
As Mr Cameron is unable to recall the details of the incident, it's difficult to speculate what was his intention. However, it is evident that he did not plan and had no motivation to cause his mother any (indistinct) anyone else on that day.
Is that correct there? When you refer to his inability to recall, that then means it's difficult to speculate on intention?---Yes.
Yes. Yes. Ms Prince, thank you. Any further questions? Yes.
In cross-examination, Dr Wojnarowska confirmed that a person who is delirious and feels fearful might act in order to do something about that fear.[135] Further, a person may act in order to eliminate the source of the fear. A person who is fearful can be angry, and they can be violent as a consequence.
[135] ts 334 (15/03/2024).
Dr Wojnarowska confirmed that a person who is in a state of delirium has fluctuating levels of consciousness, meaning the person may go in and out of consciousness.[136]
[136] ts 335 (15/03/2024).
In re-examination, Dr Wojnarowska stated there can be periods of time where a person who is so affected and in a state of delirium caused by intoxication that they are not able to perform acts consciously. Dr Wojnarowska said that from the body worn camera footage after the incident there are already fluctuating levels of consciousness in responding to the police's requests, but also irrational behaviour.[137]
[137] ts 337 (15/03/2024).
Assessment and findings
I am satisfied that the accused killed the deceased by inflicting multiple stab wounds to her body. I am satisfied that the accused walked to the kitchen area of the premises voluntarily. I find that the accused determined to walk towards and enter the kitchen area. Immediately after entering the kitchen, the accused opened the cutlery drawer and moved the cutlery for the purpose of retrieving the weapon used. After locating the knife, the accused immediately inflicted a persistent, violent assault on the deceased.
I accept the testimony of Dr Junkerstorff that the accused inflicted 62 separate stab wounds (penetrating sharp force injuries) to the deceased's face, neck, arms, legs, back and chest. The combination of the injuries was fatal. I make that finding beyond a reasonable doubt.
I am satisfied that the act of stabbing the deceased 62 times with the knife and causing her death was unlawful. I make that finding beyond a reasonable doubt.
I am satisfied that the accused was heavily intoxicated at the relevant time. The level of DMT at the relevant time would have been approximately 1.3 mg/L. Professor Martin-Inverson stated that in experiments, the highest dose he has observed is between 0.85 to 1 mg/L.[138] Professor Martin-Iverson stated that the accused's level of intoxication was very high or at the 'severe level'. The level of intoxication from DMT peaks about one hour after consumption but if taken with moclobemide or another MAO inhibitor, slows the metabolic rate but depending on the consumption, the peak would last much longer with the effect usually completely gone in approximately six hours.[139] Professor Martin-Iverson stated that it was 'possible and highly likely' that the accused had a loss of contact with reality.
[138] ts 171 (12/03/2024).
[139] ts 178 (12/03/2024).
I find that the accused was intoxicated at the severe level. Substances may affect persons in different ways. What is relevant is the nature and degree of intoxication experienced by the accused at the relevant time. The nature and degree of the intoxication is important because it will be relevant in determining the type of impairment the accused had at the relevant time. Intoxication does not necessarily deprive a person of the ability to form an intent to cause a specific result. I must take into account the nature and degree of the accused's intoxication and also assess the entirety of the evidence in determining the issue of intent. In so doing, I am mindful of the opinion of Professor Martin-Inverson regarding the extent of the intoxication.
I am also satisfied and do find that the accused intentionally became intoxicated as a result of his voluntary consumption of the illicit drugs.
I now turn to the psychiatric evidence. A preliminary issue is whether the accused was mentally impaired in terms of s 27 of the Criminal Code at the relevant time. At trial neither the State nor defence submitted that the Court should find that the accused was mentally impaired within the meaning of s 27(1) of the Criminal Code. Rather, the State and defence submitted that a finding should be made that the accused became intentionally intoxicated and as a consequence, became psychotic. The position of the State and defence was that the accused was acutely intoxicated with a subsequent acute confusional state arising from his level of intoxication attributable to his voluntary consumption of ayahuasca and other illicit substances.
I will consider the evidence concerning whether the accused was suffering from a mental impairment. Both Dr Brett and Dr Wojnarowska expressed opinions that it is likely that the accused has an underlying mental illness, namely schizoaffective disorder. However, the accused has not previously been diagnosed with having a schizoaffective disorder. I accept this opinion of Dr Brett and Dr Wojnarowska.
Dr Wojnarowska stated that the accused has an underlying functional illness, namely schizoaffective disorder, with his psychotic episodes being usually triggered by drug use, stress and his underlying vulnerable brain structure.
Dr Wojnarowska expressed the opinion that at the time of doing the relevant act, the accused was suffering a delirium due to intoxication with DMT substances and there was no evidence that the intoxicating substances caused any underlying schizoaffective illness. Dr Wojnarowska stated the incident occurred as a consequence of the DMT intoxication and not from his underlying psychotic condition.
Dr Brett expressed the opinion in his report that the accused was in such a state of intoxication that he was in an acute confusional state with probable psychosis.
In his report of 10 January 2024, Dr Brett diagnosed that the accused was suffering from a schizoaffective disorder and polysubstance abuse. Dr Brett stated that the diagnosis of schizoaffective disorder is not certain. In cross-examination he expressed the opinion that the diagnosis was provisional.
Dr Brett stated that whilst the accused probably had an underlying mental disorder, namely schizoaffective disorder, it was a drug induced disorder and that he was confident that the incident was an episode of psychosis precipitated by drug use. During his testimony, Dr Brett stated that the accused was suffering from a combination of intoxication, psychosis and an acute confusional state of delirium, with those disorders overlapping in symptoms. In the end, Dr Brett appeared to settle on an opinion that the primary disorder was the intoxication and subsequent confusional state arising from the use of ayahuasca and other illicit substances.
Dr Fenner stated that the history and presentation of the accused at the hospital was consistent with an acute intoxication with psychotic symptoms. Dr Fenner stated that if the accused was suffering from a psychotic episode, he would not have recovered so quickly.
The expert opinion supports a finding that that the accused's primary disorder was his level of intoxication and the consequential confusional state arising from the consumption of ayahuasca. That is, the accused was suffering from a delirium due to intoxication with the DMT substances. I make that finding.
I am satisfied that the expert opinion did not support a finding that the accused was of unsound mind due to a mental impairment. I make that finding. That is, the evidence of Dr Brett and Dr Wojnarowska did not contend that the accused suffered from a mental impairment and thereby, was not criminally responsible.
In any event, where unsoundness of mind is caused by intentional intoxication as a result of the voluntary consumption of drugs, an accused person is precluded from relying upon the defence of unsoundness of mind. The effect of s 27 of the Criminal Code is that a person who voluntarily takes drugs and thereby intentionally causes himself to become intoxicated should be held responsible for his actions, even if the drugs result in loss of the particularised capacities.
However, whether a person lacked one of the capacities under s 27 of the Criminal Code may indicate the nature and degree of intoxication.[140] Both Dr Brett and Dr Wojnarowska expressed the opinion that the accused did lack one of the capacities.
[140] The State of Western Australia v Quartermaine [2020] WASC 458.
Dr Brett expressed the opinion that given the accused's state of intoxication and his mental health he would have likely been deprived of the capacity to know that he ought not do the act. Dr Brett stated that it was the accused's severe level of intoxication and acute confusional state that is most relevant to causing this deprivation.[141] Further, Dr Brett stated that given the accused's level of intoxication and his underlying mental health, it is unlikely that he was able to control his actions.[142]
[141] Exhibit 13, Report of Dr Brett dated 10 January 2023, p 19.
[142] Exhibit 13, Report of Dr Brett dated 10 January 2023, p 19.
Dr Wojnarowska expressed the opinion that the accused had no capacity to understand what he was doing at the time of the incident. Further, Dr Wojnarowska stated that the accused did not know that he ought not do the act. Dr Wojnarowska stated that it was difficult to express an opinion on whether the accused lacked the capacity to control his actions given his reported lack of memory of the incident.[143]
[143] Exhibit 35, Report of Dr Wojnarowska dated 6 July 2023, [6].
I am satisfied that s 27 of the Criminal Code has no application to the accused. I am satisfied that the accused did voluntarily consume illicit drugs and thereby was intentionally intoxicated. However, the opinion of the psychiatrists that the accused lacked a capacity may indicate the nature and degree of intoxication.
Intention finding
I now turn to the fourth element of the offence of murder, namely whether the State has proven intent beyond a reasonable doubt. The question of whether the accused had the requisite intention for the offence of murder is a question of fact to be determined having regard to all the relevant circumstances, including that the accused was intoxicated at the relevant time.
The nature and degree of the intoxication is important because it will show the extent of the impairment that impacted on the ability of the accused to form a specific intent. However, intoxication, including severe intoxication, does not necessarily deprive a person of the ability to form an intent to cause a specific result. Further, the fact that the accused may have done an act whilst intoxicated that he would not do when sober does not necessarily mean that he did not intend to do it, or to do it with a specific purpose.
The accused told the psychiatrists that he has no recollection of the event. Therefore, the accused is unable to give an account of his actions which would be relevant to determining his intention, if any, at the relevant time. Dr Brett observed that the accused, during his immediate post act conversations with the first responders, did not give any account or indication that he linked his killing of the deceased to a psychotic phenomena.[144] Dr Brett stated that he accepted the proposition that in order to establish the intent of a person you would have to assess the surrounding circumstances.
[144] ts 203 (12/03/2024).
The accused's behaviour prior to the infliction of the attack on the deceased must be considered. I have outlined the testimony and witness statements of the paramedics and the police officers who attended at the residence. I make the following findings.
Upon the arrival of the ambulance officers the accused appeared to the officers to be disorientated, confused and not properly engaging with the officers. However, the accused appeared to comprehend what was occurring and what was being said. I am satisfied that the accused's interaction with the first responders was marked by his ability to communicate with the paramedics, and subsequently to the attending police officers.
I note that Mr Bowring asked the accused 'how he was doing' and the accused answered 'yeah, yeah, I am fine'. Further, the accused stated that he was thirsty and asked for a glass of water. The accused was asked to get out of bed by the deceased, and did so. Whilst the accused undertook those actions and was conversing, both ambulance officers observed that he was disorientated and at times displayed a blank look, but at other times he appeared lucid.[145]
[145] ts 213 (12/03/2024).
I am satisfied that the accused's behaviour then escalated from being passive to being confrontational and using expletives. I find that the accused became confrontational and that the ambulance officers consequently decided to seek the assistance of the police for reasons of safety. I accept the testimony of Mr Bowring and Mr Vincent in respect to the escalation of the behaviour of the accused.
In order to have intentionally killed the deceased, the accused must be aware of what he is doing, that is, stabbing the deceased. The evidence that indicates that at various times prior to, and immediately after, the incident the accused lacked awareness must be considered. The fact that at various moments the accused appeared to be unaware of his surrounds is supportive of the contention that he was unable to form a specific intention for the offence of murder. However, the fact that the accused's awareness may have been impaired at various moments must be assessed in the context of other evidence that supports a finding that at the relevant time the accused had awareness and did act with purpose. The accused had the capacity to form intent and acted with intent when he stabbed the deceased.
The accused's behaviour to the deceased became aggressive with expletives being directed to her, including telling her to 'fuck off', 'go away' and 'leave me alone'.
The accused then walked into the kitchen area with the deceased following. The conversation between the accused and the deceased continued to escalate. The paramedics gave evidence that they heard the noise of cutlery, followed by the deceased shouting that she was being stabbed. The witnesses then heard and observed the accused stabbing the deceased.
The acts of the accused walking into the kitchen and retrieving the knife from the cutlery draw were purposeful acts. I find that the accused was aware of his acts and their purpose. Dr Brett accepted the proposition that what a person does with an item, such as a knife, immediately after retrieving the item strongly supports the purpose for which the item was picked up. I find that the accused retrieved the knife with the purpose to inflict an attack on the deceased. I find that the accused knew that the person whom he was stabbing was a person and further, that the person was his mother.
The accused inflicted 62 stab wounds to the deceased's face, neck, chest, back, arms, hips and legs. The extent of the injuries is significant for the reason that it supports a finding that the purpose of the accused was to cause the death of the deceased. This was not a spontaneous act of picking up a knife and stabbing the victim once. The accused went to the kitchen, retrieved a suitable weapon and then inflicted a prolonged, brutal attack on the deceased. I accept that the killing was not premeditated. Rather, I find that the accused became angry and acted with purpose by inflicting the violent attack. The intensity of the attack is consistent with a person intoxicated with illicit substances. I accept that the accused's level of intoxication combined with his anger were factors that bear strongly on his decision to attack the deceased.
During the period after the accused's arrest and when being transported to hospital, the accused displayed a level of consciousness and engagement with the officers. On other occasions during this period, the accused was described by the officers as confused, disorientated and intoxicated. The body worn camera footage shows the accused showing an awareness of what is occurring in his responses to paramedic Ms Evans and agreeing to go outside to the ambulance. The accused was responsive to questions asked of him by the first responders. In turn, the accused asked questions of the first responders, seeking clarification as to the likely consequence of his actions and requesting confirmation regarding his mother's state.
The accused's behaviour in asking for the police and for help is not inconsistent with my finding that the accused held the intention to kill. The confused behaviour is consistent with the accused suffering from the extent of his intoxication.
I have been mindful in assessing the words and actions of the deceased that intoxicated persons do not always behave in the same way as sober persons. However, having taken that fact into account, I am satisfied that the accused had the capacity to form an intent, and in fact did so.
Dr Wojnarowska expressed the opinion that the accused did not have the capacity to know what he was doing. I am satisfied that the accused did know what he was doing at the relevant time. That is, the accused knew that he was stabbing a person and that the person was the deceased. I have made that finding based on the entirety of the circumstances.
I am satisfied that the accused's actions were clear, unequivocal and purposeful. I am satisfied beyond a reasonable doubt that when the accused stabbed the deceased with the knife 62 times, he intended to kill her.
Verdict
Accordingly, I find that the accused is guilty of the offence of murder.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
16 AUGUST 2024
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