The State of Western Australia v Carter - [2021] WASC 203

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CARTER [2021] WASC 203
CORAM:   MCGRATH J
HEARD:   29 & 30 MARCH 2021
DELIVERED          :   25 JUNE 2021
FILE NO/S:   INS 14 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution

AND

HAROLD ANDRE CARTER
Accused

Catchwords:

Criminal law - Murder - Sentencing - Trial of issues - Whether accused suffering a mental illness at time of the offending - Whether accused attempting to flee jurisdiction at the time of arrest

Legislation:

Criminal Code (WA), s 279

Result:

Issues determined

Category: B

Representation:

Counsel:

Prosecution	:	Mr J Mactaggart
Accused	:	Mr P S Ash

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Peter Ash & Associates

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

Butler v The State of Western Australia [2010] WASCA 104
Damiani v The State of Western Australia [2006] WASCA 47
Krijestorac v The State of Western Australia [2010] WASCA 35
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Smith v The State of Western Australia [2010] WASCA 176
Wheeler v The Queen [No 2] [2010] WASCA 105

MCGRATH J:

On 29 March 2021, the offender pleaded guilty to one count that on or about 13 September 2019 at Nollamara he murdered Jessica Leanne‑Rose Carter. The parties have agreed the facts upon which Mr Carter pleads guilty save three issues. Accordingly, on 29 and 30 March 2021 a trial of issues was conducted to determine the factual issues in dispute.
The three factual issues in dispute between the State and the offender are:
1.Whether the offender was suffering from a mental illness at the time that he inflicted the lethal injury and if so, did that condition impair his mental functioning to such an extent that it reduces his blameworthiness or culpability for the offending behaviour. This issue requires a determination as to when the offender last used or consumed methylamphetamine prior to 13 September 2019, being the date upon which he killed the deceased. If that last occasion was not proximate to 13 September 2019, then a determination must be made whether the offender's condition progressed beyond self‑limiting periods of methylamphetamine-induced psychosis to a more enduring mental illness.
2.Whether the offender reacted to anything said or done by the deceased immediately prior to him killing the deceased.
3.Whether the offender was attempting to flee the jurisdiction at the time of his arrest at 4.17 am on 15 September 2019 at Terminal 2, Perth Airport.
The offender accepts that he must establish the first two of the factual issues in dispute on the balance of probabilities and that the State must prove the third factual issue in dispute beyond a reasonable doubt.

Relevant facts

I will provide a short summary of the offence based upon the proposed facts prepared by the State.[1] The offender and the deceased were in a relationship for approximately 12 years and resided at an address in Nollamara. At 6.00 pm on 13 September 2019, a neighbour recalled hearing a male and female talking loudly for approximately 2 ‑ 3 minutes. The neighbour heard the female voice state 'help me.' The loud voices then ceased. The State's case is that at that time the offender inflicted a penetrating injury, being a 19 cm wound, through the deceased's chest causing her death. The wound was inflicted with a large black handled knife which was 30 cm in length.
[1] Amended Statement of Material Facts filed by the State on 7 July 2020.
The offender left the deceased dying on the tiles of the hallway rendering no assistance nor contacting the authorities. That night the deceased remained at the premises. On 14 September 2019, the offender returned to his place of work and sent an SMS text to his daughter. Further, the offender attended at Belmont Shopping Centre. At 12.57 pm on 14 September 2019 the offender was involved in a single vehicle traffic accident after hitting a tree in Kewdale. The offender did not go to hospital, telling the attending paramedics that he had only a sore knee. The right-hand side of the vehicle was severely damaged. The State does not seek to prove whether the offender deliberately drove the vehicle into the tree to cause the crash or whether the crash was an attempt by the offender to self-harm. The offender contends that it was an attempt to self‑harm.
The offender then informed the deceased's father by SMS that he had been involved in a car accident. A series of text messages were then exchanged between the deceased's father and the offender. At no time did the offender refer to the fact that the deceased was dead.
On 14 September 2019 at 7.43 pm various messages were purported to have been sent from the deceased's Facebook account to family members about the traffic accident. One of the messages stated 'His new car hit a tree, yes on Wright Street'. Another message stated 'Harold was tired and wouldn't let me drive. He hurt his leg and a few scrapes but he's ok. I got a small scratch, is all'. The State contends that those messages were sent by the offender using the deceased's Facebook account at a time that he knew that the deceased had died. The offender accepts that he sent those Facebook messages.
At 9.52 pm on 14 September 2019, the offender telephoned the deceased's father and another member of the family answered the phone. The offender told the deceased's mother that he had dropped the deceased in the city at the Comedy Club with a girlfriend or girlfriends and that he was to pick the deceased up at 11.30 pm. The offender accepts that this was a deliberate lie.
In the early hours of the morning of 15 September 2019 the deceased's body was found in the hallway of the premises by a family member of the deceased.
In the early hours of the morning of 15 September 2019 the offender made a purchase of $21.95 for fuel at a Caltex Service Station in Westminster. The offender then withdrew $250 from an ATM.
At 4.03 am on 15 September 2019, the offender drove to Terminal 2 at Perth Airport and parked his car. At 4.17 am the offender was arrested by police officers at Terminal 2 whilst in possession of two passports in his name and a mobile phone which had a download for the details and the cost of an available flight leaving Western Australia to the Eastern States.

Relevant law

In circumstances where an offender's mental illness or psychological difficulties have been self‑induced, his or her condition is not generally to be regarded as mitigating the offence. An offender's mental illness or psychological difficulty may be self‑induced by the ingestion of alcohol or illicit drugs. In these circumstances, the offender is generally to be regarded as morally responsible for his or her condition.[2]
[2] Damiani v The State of Western Australia [2006] WASCA 47 [41] ‑ [42]; Butler v The State of Western Australia [2010] WASCA 104 [8]; Smith v The State of Western Australia [2010] WASCA 176 [69] ‑ [75].
In circumstances when an offender's mental illness or psychological difficulties have not been self‑induced then the offender's condition is a relevant factor in the sentencing process. An offender who seeks to rely on mental illness or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her mental functioning to such an extent that it reduces the blameworthiness or culpability for the offending.[3]
[3] Wheeler v The Queen [No 2] [2010] WASCA 105 [9] ‑ [10].
The extent to which the mental illness or psychological difficulties effects the moral blameworthiness or culpability of an offender depends upon the nature, effect and severity of the condition and its symptoms. Mental impairment may also have other effects with respect to mitigation of sentence.[4]
[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 [25]; Krijestorac v The State of Western Australia [2010] WASCA 35.

Evidence received

At the trial of issues evidence was received from the offender;[5] Dr Hall, forensic psychiatrist;[6] Ms Shanhun, psychologist;[7] Dr Hales, general medical practitioner;[8] and Dr Petch, psychiatrist.[9] Further, various documents including a prosecution brief comprising witness statements[10] and medical reports were received as exhibits. I will outline the salient aspects of each witness.

The offender

[5] ts 23 ‑ 65.

[6] ts 66 ‑ 108.

[7] ts 116 ‑ 120.

[8] ts 120 ‑ 136.

[9] ts 136 ‑ 155.

[10] Exhibit 14, Prosecution Brief.

The offender gave evidence that he commenced using methylamphetamine in 2016.[11] He stated that by March 2017 he was using half a point to a point a day of methylamphetamine and that he would consume the drug with the deceased.[12]
[11] ts 25.
[12] ts 25.
In March 2017 the offender commenced suffering from paranoia and delusions.[13] The offender stated that on 17 March 2017 he attended Sir Charles Gairdner Hospital where he told the attending medical practitioners that he used the drugs intravenously. The offender gave evidence that that was untrue.[14] He contended that he said that to the medical officers because he thought 'that if I agreed to everything they told me that they wouldn't kill me'.[15]
[13] ts 25.
[14] ts 26.
[15] ts 26.
The offender accepted that the medical report from Sir Charles Gairdner Hospital recorded that he expressed the view to the medical practitioners that he believed his wife was out to get him and stated that she was slowly poisoning him.[16] In respect of this evidence, I observe that the Discharge Summary from Sir Charles Gairdner Hospital on 3 March 2017 states that the offender 'believes that he is a victim of voyeurism within his home via devices implanted within his computer and mobile phone'. Further, I observe that the records state that the offender's wife 'states that he has been responding to unseen stimuli'.[17]
[16] ts 28; Exhibit 2, Discharge Summary Sir Charles Gairdner Hospital dated 3 March 2017.
[17] Exhibit 2, Discharge Summary Sir Charles Gairdner Hospital dated 3 March 2017.
The offender gave evidence that in October 2017 he attended a general health practice, being the Kingsley Family Practice. At that time he informed the medical practitioner that he was using 'ice on and off'.[18] Further, the offender informed the medical practitioner that he was suffering from visual hallucinations and engaging in unusual actions like sticking alfoil on windows and unplugging electrical appliances. The offender stated that he did not inform the medical practice that he was suffering from paranoia or delusional issues at that time. He did not tell the medical practitioner that he was suffering from paranoia because he feared telling them the truth.[19]
[18] ts 29.
[19] ts 30.
The offender gave evidence that on 27 February 2018 he attended the medical practice for the reason that he was suffering from paranoia and delusions.[20]
[20] ts 30.
In respect of this evidence I observe that the Patient Health Records of the offender from Kingsley Family Practice were produced.[21] The records note that on 16 October 2017 the offender attended the practice and confirmed that he had been using 'ice' since March 2017. The notes record that he had experienced visual hallucinations and the effects of the drugs were impacting on his relationship. The medical records confirm that on 27 February 2018 the offender attended Kingsley Family Practice and stated that he had taken 'ice' and suffered hallucinations and symptoms of paranoia.
[21] Exhibit 3, Patient Health Records of the offender.
The offender stated that he attended on a psychologist in 2018, namely Ms Ioannidou, for the reason that he was suffering from paranoia. However, the offender accepted that he did not inform the psychologist that he was suffering from any paranoia or delusions for the fear that the psychologist was part of the conspiracy.[22] I observe that the medical records confirm that the offender did attend on Ms Ioannidou on 27 March 2018 and 8 May 2018.
[22] ts 31.
The offender stated that in July 2019 he went to Bali. Prior to this he had used methylamphetamine over a five day period.[23] Upon his return, he attended at the medical practice on 11 July 2019 stating that he had suffered panic attacks whilst in Bali. The offender gave evidence that he did not inform Dr Hales of the extent of his issues because he believed the doctor was part of the conspiracy.[24] Further, that the last time he used methylamphetamine prior to the incident on 13 September 2019 was at the end of June or early July 2019, and that he did not use methylamphetamine after that time.[25]
[23] ts 31.
[24] ts 32.
[25] ts 32.
The offender gave evidence that he did attend on Ms Shanhun after returning from Bali but he was not honest with her concerning his health issues. The offender stated that he informed Ms Shanhun that his wife was one of the persons that was trying to kill him.[26] On 4 September 2019, the offender attended on Ms Shanhun but stated that things were now fine. The offender stated during his testimony that he considered the health professionals were part of the conspiracy to kill him.[27]
[26] ts 33.
[27] ts 34.
The offender stated that during the period of July to September 2019 his relationship with the deceased was strained as a result of his mental health issues.
The offender stated that he received a text message from the deceased on 12 August 2019 asking why he had put her vape in the freezer and that she was 'sick of this weird shit'.[28] The offender gave evidence that he put his wife's vape in the freezer because he thought it was sending out electrical shocks towards him.[29]
[28] ts 37, Exhibit 5, Extraction report from mobile phone being Annexure D to the defence submissions filed 3 December 2020.
[29] ts 37.
The offender stated that on 13 September 2019 he did not go to work but remained at home. During the day he went to the local shops to get coffees and made a purchase at Woolworths. The offender then watched television with the deceased.[30]
[30] ts 38.
The offender stated that he did not consume drugs on 13 September 2019 but at 5.30 pm he consumed a beer.[31] Shortly after, the offender went to the kitchen to get another beer and upon his return to the living room he went to give his wife a kiss on the forehead. At that time he stated that his teeth 'accidently hit her head'.[32] The deceased then went to the bathroom and returned and said the words 'That's it. You and me are going to war' and then she hit the offender in the chest.[33] The offender gave evidence that at that time he then went to the kitchen, saw the knife, picked it up and then immediately attacked the deceased.[34] The accused stated that he then killed the deceased by stabbing her with the knife and accepted that at the time of stabbing the knife into the deceased's body he intended to kill her.[35]
[31] ts 40.
[32] ts 41.
[33] ts 41.
[34] ts 41.
[35] ts 41.
In cross‑examination the offender stated that he stabbed the deceased through the chest whilst she was lying on her back. The deceased found her way onto her back after a short struggle with the offender. As the deceased was lying on her back the offender extended his arm and plunged the knife into the deceased's chest.[36] The offender stated that his intention at that time was to kill the deceased.[37] He did so because 'she had said that they were going to war'.[38] The offender accepted during cross‑examination that there was absolutely no need for him to stab the deceased whilst she was on the floor.
[36] ts 50 ‑ 51.
[37] ts 51.
[38] ts 51.
The offender contended that he crashed his car after he killed the deceased in an attempt to kill himself.[39] The offender agreed that he lied to the police during his record of interview when he stated that he did not know what happened to the deceased.[40]
[39] ts 44.
[40] ts 52.
During cross-examination the offender accepted that during his interview with the police, when asked about the killing of the deceased, he stated 'not to his knowledge' and that he had done nothing wrong. The offender accepted that was a lie. Further, the offender accepted that after he had killed the deceased he did not disclose the death, he left the deceased in the hallway of the unit, and that he sent false text messages to other people in circumstances where he knew they were false.
In respect of his use of methylamphetamine and mental health, the offender gave the following evidence in cross-examination:[41]
[41] ts 57 - 58.
Mr Carter, I think you've indicated to my learned friend that you started using the drug, methylamphetamine, in late 2016. Is that correct?---Yes.
And that, Mr Carter, was about the time your mental state started deteriorating, wasn't it?---Yes.
Not before?---No.
You had had no issues with your mental state, or any psychiatric issues, prior to using methylamphetamine, had you?---No.
And it was when you began to use methylamphetamine that you began experiencing the symptoms that you've described several times today to his Honour and the court as paranoia?---Yes.
Thinking people were trying to kill you?---Yes.
And that is when you found it necessary to go to a doctor and that is when your wife urged you to seek treatment?---Yes.
Which you first did in March 2017 by going to the Sir Charles Gairdner medical complex?---Yes.
And had you previous to that spent a night at the Royal Perth Hospital complex?---Yes.
And that was entirely in relation, Mr Carter, to your - the purpose of that visit was because of symptoms caused by your use of methylamphetamine?---Yes.
And you were using a point - half a point, a point to a day, isn't it?---Yes.
And, Mr Carter, you used methylamphetamine on and off until at least June or July 2019, didn't you?---Yes.
You didn't ever make a conscious attempt to stop using methylamphetamine, did you?---I would go months at a time without using.
No. But whilst it is true that you sought medical help and went to doctors, you didn't go to any courses to deal with what we know as drug addiction, did you?---No.
You didn't seek any systematic help to deal with drug addiction, did you?---No.
And you would acknowledge to us all today that by June or July 2019, you had a quite significant habit, didn't you?---No.
No? You were a regular user, Mr Carter, weren't you?---I was a binge user.
A binge user?---Yes.
So then in March 2017 you binged?---Yes.
Did you tell the staff at Sir Charles Gairdner Hospital that you used about .5 of a gram a day?---Yes. When I had the drug.
I beg your pardon?---When I had the drug. Yes.
Yes. When you had the - yes. Right. And it was then that you started suffering from delusions?---Yes.
Then - and did those delusions, and the paranoia, cease, Mr Carter, when you stopped using drugs?---No.
But they continued, and the reason you had the paranoia and delusions - well, let me put it this way. The paranoia and delusions arose after you started significantly using methylamphetamine, didn't they?---Yes.
Then further in cross-examination the following question was put to the offender:[42]
I suggest to you that the times that you were experiencing paranoia and delusions were the times when you were ingesting drugs- using drugs?---Yes.
[42] ts 62.
In re-examination the offender clarified his answer concerning whether he only suffered delusions when ingesting prohibited drugs.[43] The offender stated that he did not agree with that proposition.

Ms Shanhun

[43] ts 63

Ms Shanhun, a registered psychologist, gave evidence that she treated the offender in three one-hour sessions on 15 July 2019, 12 August 2019 and 4 September 2019.[44] Ms Shanhun stated that she was unable to do a full assessment of the offender given the limitations in three one-hour sessions.[45] During the first treatment session on 15 July 2019, the offender stated that he did not trust those closest to him. Consequently, Ms Shanhun determined that it was necessary to refer the offender to a psychiatrist.
[44] ts 116 - 118; Exhibit 15, Report of Ms Shanhun dated 3 October 2019.
[45] ts 117.

During the session with the offender on 12 August 2019, the offender stated that people were trying to kill him and in particular his wife.[46] Ms Shanhun stated that she was unable to make a diagnosis concerning any psychosis given that she is not a trained psychiatrist.
[46] ts 118; Exhibit 15, Report of Ms Shanhun dated 3 October 2019.
Ms Shanhun contacted the offender's general practitioner who expressed surprise that the offender was experiencing paranoia and in particular, paranoia that persons were trying to kill him. The general practitioner informed Ms Shanhun that she would organise a psychiatric assessment.
At the third session on 4 September 2019, the offender appeared pleased that he was able to do all the things he wanted to do and was more amenable and affable. Ms Shanhun stated that her opinion remained, though, that the offender should be referred to a psychiatrist notwithstanding his presentation at the third session.[47]

Dr Hales - Kingsley Family Practice

[47] ts 119.

Dr Hales, general medical practitioner, is attached to the Kingsley Family Practice in Greenwood. The offender was Dr Hales' patient in 2019. Dr Hales produced a Patient Health Summary for the offender in respect of his treatment at the practice by herself and other medical practitioners.[48] The records establish that on 16 October 2017 the offender attended the practice and stated that he had been using 'ice on and off' and that he suffered from visual hallucinations.[49] Further, that on 27 February 2018 the offender reported to the medical practice that he was paranoid and felt people were talking about him on television.[50] On 2 March 2018, the medical reports record that the offender attended an appointment for counselling from a psychologist but that he did not receive any treatment because 'he did not wish to pay any out of pocket'.[51]
[48] Exhibit 3, Patient Health Summary for the offender.
[49] Exhibit 3, Patient Health Summary for the offender.
[50] Exhibit 3, Patient Health Summary for the offender.
[51] Exhibit 3, Patient Health Summary for the offender.
On 3 May 2019, the offender attended on Dr Hales seeking a referral to see a psychologist. The offender reported that he had been of low mood, feeling quite anxious and was not sleeping. The offender stated that he had previous suicidal ideation but not currently. The offender told Dr Hales that he did not take any drugs and did not drink alcohol.[52]
[52] Exhibit 3, Patient Health Summary for the offender.
On 11 July 2019, the offender attended on Dr Hales. At that time Dr Hales referred the offender to a counsellor. On 22 July 2019, the offender reported to Dr Hales that he had ongoing low mood and felt his anxiety was worsening with daily panic attacks.[53] On 17 August 2019, the offender attended on Dr Hales complaining of chest pains resulting in a referral to Joondalup Hospital for an assessment and again on 19 August 2019 for a follow-up in respect of the chest pains and a cardiovascular review.
[53] ts 123; Exhibit 3, Patient Health Summary for the offender.
On 11 July 2019, the offender informed Dr Hales that he had a panic attack whilst on holiday in Bali. Dr Hales did not recall whether there was discussion regarding drug use.[54]
[54] ts 127.
Dr Hales had no recollection of whether or not Ms Shanhun contacted her on 22 August 2019 concerning paranoia symptoms being suffered by the offender. The medical records state that on 27 August 2019 Dr Hales received a telephone call from the deceased stating the offender had expressed thoughts of suicidal ideation.[55]
[55] Exhibit 3, Patient Health Summary for the offender.
On 30 August 2019, the patient records state that the offender reported that he was not having any hallucinations or delusions.[56]
[56] Exhibit 3, Patient Health Summary for the offender.
On 4 September 2019, Dr Hales asked whether the offender had engaged with Community Mental Health. Dr Hales understood that the offender had not done so.

Dr Hall

Dr Hall, forensic psychiatrist, prepared two reports dated 20 August 2020[57] and 8 January 2021,[58] and was examined at the hearing. Dr Hall prepared the second report after receiving further medical records concerning the offender. Therefore, the second report dated 8 January 2021 was received as Dr Hall's final report.
[57] Exhibit 11, Report of Dr Hall dated 20 August 2020.
[58] Exhibit 12, Report of Dr Hall dated 8 January 2021.
Dr Hall stated that the offender contended that he last used methylamphetamine in June 2019 and that he told a mental health nurse on 15 September 2019 that he last used methylamphetamine eight weeks earlier. Further, that on 16 September 2019 he told the police that he last used methylamphetamine six weeks earlier. Therefore, Dr Hall concluded that the offender was using methylamphetamine with some regularity between the period shortly prior to June 2019 and August 2019.[59]
[59] Exhibit 12, Report of Dr Hall dated 8 January 2021 [39].
Dr Hall stated that the offender was an unreliable historian in relation to his drug use and that he was 'probably underreporting the extent of that' (the use of methylamphetamine).[60]
[60] ts 74.
Dr Hall stated that during his interview with the offender he stated that in the two weeks prior to the offending he was feeling really anxious and paranoid.[61] Dr Hall stated that the offender's presentation of his psychosis had a genuine quality to it.[62] Dr Hall formed the opinion that at some point the offender has had 'experiences of psychosis, and that they were genuine psychotic symptoms'.[63]
[61] ts 73.
[62] ts 73.
[63] ts 74.
Dr Hall diagnosed that the offender's condition had not progressed beyond self-limiting periods of methylamphetamine induced psychosis to a more enduring mental illness. It is likely that the offender had experienced intermittent exacerbations of psychosis from early 2017 in relation to his use of methylamphetamine. Accordingly, Dr Hall's diagnosis 'is recurrent drug induced psychosis - in remission'.[64] Dr Hall stated that in his opinion the offender had relapsed to paranoid psychosis between May 2019 and August 2019 in the context of methylamphetamine use but that the psychosis appeared to be settled by early September 2019 in the absence of treatment with antipsychotic medication.[65]
[64] Exhibit 12, Report of Dr Hall dated 8 January 2021 [41].
[65] Exhibit 12, Report of Dr Hall dated 8 January 2021 [43].
Dr Hall gave evidence that it remains unclear the extent to which the offender's methylamphetamine use was ongoing or intermittent. Similarly, it is unclear as to whether the lack of disclosure to health professionals or documentation of psychosis on several visits is indicative of the absence of psychotic symptoms at such times or the withholding of symptoms by the offender.[66]
[66] Exhibit 12, Report of Dr Hall dated 8 January 2021 [42].
Dr Hall specifically addressed the possibility of any causal relationship between the offender's mental health and the offending. In his first report Dr Hall stated:[67]
Unfortunately, implausible aspects to Mr Carter's account (such as his behaviour following the offending) undermine his otherwise vague and poorly elaborated claim of a generally causal relationship between his paranoia and the index offending. They similarly undermine the reliability of his self-report of the amount and proximity of his use of substances including alcohol to the offending. Overall, Mr Carter's account is considered too unreliable to be confident about any direct causal contribution to the offending from his self‑reported paranoia.
[67] Exhibit 11, Report of Dr Hall dated 20 August 2020 [34].
Dr Hall expressed the following opinion in his second report regarding the issue of any causal relationship between the offender's mental health and the offending:[68]
Other than Mr Carter's limited self-report regarding the offence itself, there is insufficient objective information to comment with confidence on the extent of any causal relationship between his claimed paranoid ideation at the time of the offence and the act of offending. In my clinical opinion, however, it is unlikely that if his paranoia was so intense as to drive the killing of his wife, that he would have sufficient insight to repeatedly attest to police during the interview on 16 September 2019 that he is 'paranoid' and to say that he needs 'mental help' and to be 'institutionalised'. Furthermore, as stated previously, it would appear from the records that Mr Carter's mental state had settled by early September 2019. If the offence was indeed driven by psychotic beliefs, as claimed by Mr Carter, then it is currently unknown what may have caused an exacerbation on that particular day.
[68] Exhibit 12, Report of Dr Hall dated 8 January 2021 [44].
During his testimony, Dr Hall stated that he was unable to elicit from the offender a clear relationship between the paranoia and the offending. That is, Dr Hall was not able to 'get him to elaborate or flesh it out in any way that could make me confident of stating what that relationship was'.[69] Dr Hall stated that he 'couldn't be confident that there was a relationship' between his reported psychosis and the alleged offence.[70]
[69] ts 74.
[70] ts 75.
Dr Hall stated that if the paranoia and the psychosis were so intense as to cause the offender to kill the deceased, for 'it to remit so quickly by 16 September 2019 to the point where you can talk about it' is 'very unusual and very unlikely'.[71]
[71] ts 89.
In cross-examination, Dr Hall accepted that psychiatrists can hold honest but contrary beliefs.[72] Dr Hall accepted that a person who has a sensitivity to a drug may with limited use fall into psychosis and that the subsequent recovery periods will be longer and the psychosis will probably be more severe.[73] Dr Hall accepted that there was a possibility that the offender may be such a person.
[72] ts 90.
[73] ts 91.
In cross-examination, Dr Hall stated that he relied upon statements of the offender to medical practitioners to the effect that his condition had improved. Dr Hall accepted that he could not express an opinion with a high degree of confidence that the symptoms had attenuated. Further, Dr Hall stated that the offender's claim that he had not used methylamphetamine since late June/early July 2019 was conceivably true.[74]
[74] ts 96.
At the completion of the cross-examination I asked counsel whether Dr Hall held an opinion regarding the post-offence conduct of the offender and its relevance, if any, to the issue of whether the offender was suffering a psychosis. Dr Hall stated that he did not know the motive of the offender in undertaking the post-offence conduct. Dr Hall stated that if a person is very acutely psychotic they are less likely to be able to coordinate the actions that comprised the post‑offence conduct. However, if a person did coordinate the actions then those actions do not necessarily exclude psychosis.[75] The answer given, therefore, addressed Dr Hall's opinion as to whether the offender was suffering a psychosis when he undertook the post-offence conduct over the days following the offending.
[75] ts 107.
In re-examination, Dr Hall was asked why he was of the opinion that a person 'so shortly after the commission of such a serious offence' would not have the insight to realise that he was paranoid, that he needed medical assistance and needed to be institutionalised. Dr Hall stated:[76]
To kill a loved one on the basis, and solely on the basis of your paranoid delusions or psychosis is indicative of being extremely psychotic - extremely unwell, and to develop insight - to come down from that peak of psychosis to develop some insight so quickly is extremely atypical - highly - highly unlikely.

Dr Petch

[76] ts 108.

Dr Petch is a forensic psychiatrist who commenced treating the offender after he was remanded in custody.[77] Dr Petch produced the medical records from Hakea Prison in respect of the offender. Dr Petch stated that his role as a treating psychiatrist was not to determine the mental state of the offender at the time of the offending and therefore, he did not make that assessment.[78] Dr Petch confirmed that he did not analyse the extent of any psychosis at the time of the killing.
[77] ts 138; Exhibit 13, Medical Records from Hakea Prison.
[78] ts 144.
In cross-examination, Dr Petch stated that the offender's mental health was 'like a meth-induced schizophrenia picture'.[79] Dr Petch stated that he was unable to determine at what point the offender's illness was not being caused by methylamphetamine. Dr Petch formed the opinion that the offender developed a paranoid psychosis.
[79] ts 151.
Dr Petch stated that 'just because you have a psychosis doesn't mean the psychosis caused you to do whatever you did, you still have a degree of volition and it's that that's very important in cases such as this. So I haven't analysed that at all'.[80]
[80] ts 152.
Dr Petch stated in re-examination that the offender's mental illness is 'not classical schizophrenia because schizophrenia isn't generally caused by meth. But this is like a meth‑induced schizophrenia picture'.[81] Dr Petch stated that:[82]
I think some people are of the view that it's definitely caused by meth. I think because we see that so often. I think other people are of the view that perhaps he has a schizophrenic illness. But time will tell. I don't think we have completely excluded one or the other possibility. I think my own view is probably that he has what I would call a drug‑induced schizophrenic illness now. So the drugs he took have induced an enduring chronic condition of schizophrenia and which he will become - he will be psychotic from time to time. But that that illness was not caused by the hereditary factors and other factors we see in schizophrenia. But in this case, was actually induced at first by meth. So I think he has chronic mental illness now, which will need treatment.
[81] ts 151.
[82] ts 149

Determination of factual issues

I now turn to the specific issues that I must determine. I will first determine the issue of whether the offender attempted to flee after the offending act.

Did the offender attempt to flee the jurisdiction?

The State contends that the offender attempted to flee the jurisdiction after killing the deceased. The State relies upon the arrest by police of the offender at 4.17 am on 15 September 2019, in possession of his two passports and with details of a flight leaving Perth downloaded on his mobile phone, at Perth Airport.
During his testimony the offender stated during examination‑in‑chief that he 'had thoughts of fleeing' but that he 'was never going to go through with it' because of his daughters.[83]
[83] ts 45.
During cross‑examination the offender accepted that he was arrested at Perth Domestic Airport with his two passports and a mobile phone.[84] Further, the offender accepted that he went to the airport twice after he killed the deceased.[85]
[84] ts 55.
[85] ts 55.
At the time of his arrest police seized the offender's mobile phone which had a download of the details of an airfare for Qantas Airways in the amount of $1,810.85.[86] The download was made whilst the offender was at the airport. Those airline ticket details were downloaded by the offender at the airport 'because he had thoughts of going home'.[87] The offender stated in re-examination that he did not have funds to pay for the ticket. I do not accept that contention. The offender was in full-time employment prior to his arrest and was meeting his financial obligations including the payment of rent, school fees and child support.[88]
[86] ts 55.
[87] ts 56.
[88] ts 25.
To the proposition that he was at the airport trying to get a flight the offender stated that 'I went to find somewhere quiet that I could just lay down'.[89] The offender stated that he considered that at the airport he could lie down quietly. The offender denied that he attended the airport in order to depart the jurisdiction. The offender during his evidence stated that he carried his passports with him in the event he 'had to go in case people were trying to kill me'.[90]
[89] ts 56.
[90] ts 38.
The offender did not contend that he was suffering from a psychosis at the time he attended the airport. Rather, he made a conscious decision to attend the airport for the specific reason that he stated during his testimony.
I do not accept the offender's contention that he went to the airport to find a quiet place to lie down. Given that he had killed the deceased, there were no other persons at his family residence. The offender could readily have rested at the residence. Instead he travelled to the airport with his passports and searched flight availability to leave the jurisdiction. Counsel for the offender submitted that the offender did not have any luggage and that fact supported a finding that the offender did not intend to flee the jurisdiction. I do not accept that submission. The offender had killed the deceased, engaged in post-offence conduct to mislead her family, and then attended the airport with his passports with possible flight details on his mobile phone. The only reasonable inference open in light of the entire circumstances is that the offender attended the airport to flee the jurisdiction.
In giving the testimony that he was not planning to depart the jurisdiction and that he attended the airport because he wanted to find a quiet place to lie down, the offender was telling a deliberate untruth to the court. I do not believe the offender and find that he has deliberately constructed a fanciful concoction.
The offender was unable to purchase an airline ticket and board a flight due to his arrest by police officers. In short, the police thwarted the offender departing the jurisdiction. Ultimately, the offender was going to be apprehended whether this was upon boarding a flight or upon landing in another city but the fact remains that he intended to depart the jurisdiction.
Accordingly, I am satisfied beyond a reasonable doubt that the offender attempted to flee the jurisdiction. He was endeavouring to do so when he was arrested at Perth Airport.

Was the offender suffering from a mental illness at the time of inflicting the lethal act?

The evidence establishes that the offender commenced using methylamphetamine in March 2017 and is an entrenched consumer of that prohibited drug. The offender accepts that he commenced using methylamphetamine at that time.
The offender's mental health issues are inextricably linked to his consumption of methylamphetamine. I find that whilst the offender has suffered from a psychosis, those intermittent exacerbations of the psychosis from approximately March 2017 have been caused by his use of methylamphetamine. Prior to the offender consuming methylamphetamine the offender did not suffer those mental health issues.
I am not satisfied that by 13 September 2019 the offender's mental health condition had progressed beyond self-limiting periods of methylamphetamine induced psychosis to an enduring mental illness. I have doubt as to whether the offender last used methylamphetamine in July 2019. However, even if the offender did last consume methylamphetamine in July 2019, that fact does not establish that the offender was suffering from an enduring mental illness. I accept Dr Hall's evidence in that regard. I have considered Dr Petch's evidence. Dr Petch, whilst expressing the view that the mental illness had now progressed to a chronic mental illness, stated that he was unable to determine at what point the offender's illness was not caused by methylamphetamine.
In any event, I am not satisfied that the offender was suffering a psychosis at the time that he inflicted the fatal injury on 13 September 2019. I have made this finding for the following reasons.
I find that the offender is a person who has deliberately told untruths to the police concerning his actions in killing the deceased and further whilst giving testimony at the hearing before me. I find that the offender is lacking credibility.

I accept the evidence of Dr Hall concerning whether there exists any causal nexus between the mental health issues of the offender and the offending behaviour. Dr Hall specifically considered this issue. I accept Dr Hall's finding that in his clinical opinion there was insufficient evidence to be satisfied that there was a causal nexus between the offender's reported psychosis and the alleged offence.
Dr Petch presented cogent evidence concerning the mental health of the offender upon his incarceration. Dr Petch was very clear that he was unable to give an opinion as to the mental health of the offender at the time of the offending behaviour. Dr Petch stated that was not a role he purported to undertake as a post-offence treating psychiatrist.
Therefore, Dr Hall is the only psychiatrist who has thoroughly undertaken an analysis of the entire medical evidence and interviewed the offender, and he determined that there is insufficient evidence to establish a causal link between the reported psychosis and the offending. I accept Dr Hall's opinion.
Accordingly, I find that the offender inflicted the fatal injury with the intention to kill and was not suffering a psychosis at the time of undertaking that act.

Was there a physical altercation between the offender and the deceased that precipitated the lethal act?

I now consider the issue of whether there was a physical altercation between the offender and the deceased that precipitated the murder.
The offender gave evidence that he did not consume drugs but did at 5.30 pm consume a beer. The offender then went to the kitchen to get another beer and upon his return to the living room he went to give his wife a kiss on the forehead. At that time he states that his teeth 'accidently hit her head'.[91] The deceased then went to the bathroom and returned and said the words 'That's it. You and me are going to war' and then she hit the offender in the chest.[92] The offender gave evidence that at that time he then went to the kitchen, saw the knife, picked it up and then immediately attacked the deceased.[93] The offender stated that he killed the deceased by stabbing the deceased with the knife and accepted that at the time of stabbing the knife into the deceased's body he intended to kill her.[94]
[91] ts 41.
[92] ts 41.
[93] ts 41.
[94] ts 41.
In cross‑examination the offender stated that he stabbed the deceased through the chest whilst she was lying on her back. The deceased found her way onto her back after a short struggle with the offender. As the deceased was lying on her back the offender pushed the knife into her chest.[95] The offender accepted during cross‑examination that there was absolutely no need for him to stab the deceased whilst she was on the floor.
[95] ts 50 ‑ 51.
Counsel for the offender submitted that the State did not challenge the evidence of the offender concerning whether there was the contended altercation between the offender and the deceased. I find that counsel did put to the offender that he was lying with respect to the contended incident that precipitated his attack on the deceased. I make this finding based on the questions asked of the offender during cross‑examination. Counsel for the State put the following propositions to the offender:
But in any event, as you've acknowledged, you stabbed her exactly through the chest, and deliberately did so, didn't you?---Yes.
Intending to cause her death?---Yes.
But your evidence is, is it not, also that, in addition to your delusional beliefs that you say that you held - what, she had bitten you on the lip or bitten you on the forehead, or something; is that correct?---No.
What do you say that she did, then?---I kissed her on the forehead and my tooth hit her on the forehead.
And your teeth hit her on the forehead? And what did she do to you?---She hit - she punched me in the chest.
She punched you in the chest. And that's another reason why you say you stabbed your wife; is that correct?---Yes.
I suggest to you, Mr Carter, that that's an outright lie---No.
I do not accept the testimony of the offender. Therefore, I am not satisfied on the balance of probabilities that that incident occurred nor am I satisfied that the deceased uttered the words contended by the offender. In any event given my finding that the offender was not suffering a psychosis at the time that he killed the deceased then the incident is not material to sentencing. Even if the incident did occur as the offender described then he has overreacted to a minor clash of heads when a kiss was being exchanged. His response to a minor incident was to inflict a brutal attack on a defenceless woman using a lethal weapon.

Conclusion

Accordingly, I find that the State has proven beyond a reasonable doubt that the accused did attend Perth Airport at approximately 4.00 am on 15 September 2019 with the intention to flee the jurisdiction. At the time of his arrest the offender was endeavouring to depart the jurisdiction.
I find that the offender's mental health issues are inextricably linked to his consumption of methylamphetamine. I find that whilst the offender has suffered from psychosis, those intermittent exacerbations of the psychosis from March 2017 have been caused by his use of methylamphetamine. I am not satisfied on the balance of probabilities that the offender's mental health condition had progressed beyond self‑limiting periods of methylamphetamine induced psychosis to an enduring mental illness. I am not satisfied on the balance of probabilities that the offender was suffering a psychosis at the time that he inflicted the fatal injury on 13 September 2019.
Further, I am not satisfied on the balance of probabilities that the contended physical altercation between the accused and the deceased occurred. I am therefore not satisfied on the balance of probabilities that the deceased made the utterances at the time that the alleged physical altercation occurred.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Research Orderly to the Honourable Justice McGrath
25 JUNE 2021