The State of Western Australia v CFD
[2024] WADC 85
•2 OCTOBER 2024
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA |
| IN CRIMINAL |
| LOCATION | : PERTH | ||
| CITATION |
| ||
| CORAM | : MACLEAN DCJ | ||
| HEARD | : 3-12 SEPTEMBER 2024 | ||
| DELIVERED | : 2 OCTOBER 2024 | ||
| FILE NO/S |
| ||
| BETWEEN |
|
AND
CFD
Catchwords:
Criminal law - Trial by judge alone - Aggravated burglary - Unlawfully impeding breathing - Unlawfully impeding normal blood circulation - Sexual penetration - Indecent dealing - Insanity - Whether accused mentally impaired - Whether accused lacked capacity to control actions - Whether accused lacked capacity to know that he ought not to do the act - Whether accused was intoxicated
Legislation:
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
[2024] WADC 85
Result:
Accused found guilty
Representation:
Counsel:
| The State of Western Australia | : | Mr S D Packham & Ms A J Finn |
| Accused | : | Mr J A Davies & Ms C F Bass |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Jonathan A Davies |
Case(s) referred to in decision(s):
Hone v The State of Western Australia [2007] WASCA 283
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Porter [1933] HCA 1; (1933) 55 CLR 182
R v Radford (1985) 42 SASR 266
Stefanski v The State of Western Australia [2022] WASCA 5
The State of Western Australia v Jones [2018] WASC 395
The State of Western Australia v Marotta [2018] WASC 329
The State of Western Australia v Taylor [2021] WASC 470
[2024] WADC 85
MACLEAN DCJ
MACLEAN DCJ:
Table of Contents
Trial by judge alone - legal principles ................................................................................... 7
Burden and standard of proof ........................................................................................... 8
Multiple charges ............................................................................................................... 8
Prejudice and sympathy .................................................................................................... 9
Publicity ............................................................................................................................ 9
Inferences .......................................................................................................................... 9
Summary of evidence adduced .............................................................................................. 9
Mental impairment - mental illness ................................................................................ 11
Capacity to control actions ............................................................................................. 12
Capacity to know that ought not do the acts ................................................................... 12
Intoxication and insanity - applicable legal principles ........................................................ 13
Relationship between s 27 and s 28 of the Code ................................................................. 14
Legal principles relating to the assessment of expert psychiatric opinion evidence where
the issue of insanity is raised ............................................................................................... 15
The State case ...................................................................................................................... 17
Chronology after offending ................................................................................................. 39
Expert evidence ................................................................................................................... 43
Theory of mind .................................................................................................................... 81
The wardrobe ....................................................................................................................... 98
Summary of Dr Brett's evidence ........................................................................................ 105
Preliminary thoughts on the defence position ................................................................... 112
Intoxication ........................................................................................................................ 153
The delusional belief system ............................................................................................. 154
Malingering ....................................................................................................................... 161
Self-harm and psychosis .................................................................................................... 161
Non-mainstream beliefs and false fixed firmly held beliefs ............................................. 162
Operational reasons ........................................................................................................... 162
Was Dr Brett in an advantaged position as opposed to Dr Bala to make an assessment? 166
Collateral information........................................................................................................ 166
The first police interview ................................................................................................... 167
Sexual interest motivation ................................................................................................. 168
Comorbidity ASD and psychosis ...................................................................................... 169
The intervening period....................................................................................................... 170
Conclusion ......................................................................................................................... 171
[2024] WADC 85
MACLEAN DCJ
MACLEAN DCJ:
The accused is charged on indictment dated 17 April 2023 with five offences. They are:
(1) On 27 December 2021 at [suburb] [the accused] entered or was in the place of [the victim's father] without his consent, with intent to commit an offence therein And that immediately before the commission of the offence [the accused] knew or ought to have known that there was another person in the place And that the place was ordinarily used for human habitation. (2) On the same date and at the same place [the accused] unlawfully impeded the normal breathing of [the victim], by manually blocking the nose and mouth of [the victim]. (3) On the same date and at the same place [the accused] unlawfully impeded the normal blood circulation of [the victim], by manually applying pressure on or to the neck of [the victim]. (4) On the same date and at the same place [the accused] sexually penetrated [the victim], a child under the age of 13 years, by penetrating her vagina with his finger And the offence was committed in the course of conduct that constituted an aggravated home burglary. (5) On the same date and at the same place [the accused] indecently dealt with [the victim], a child under the age of 13 years, by touching her vaginal area And the offence was committed in the course of conduct that constituted an aggravated home burglary.
On 29 September 2023 her Honour Chief Judge Wager made an order that the accused be tried by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA).
The accused's trial took place before me on 3 - 12 September
2024.
At the commencement of the trial the accused was arraigned on the charges and entered pleas of not guilty by reason of mental impairment.[1]
[1] ts 99 - ts 101.
[2024] WADC 85
MACLEAN DCJ
At the outset of the trial the accused through his counsel, Mr Davies, made admissions in terms of Exhibit 4:
On 27 December 2021 at [suburb]:
Count One
1. [The accused] entered and was in the place of [the victim's father] without [the victim's father]'s consent.
2. [The accused] intended to commit an offence therein.
3. Immediately before entering and being in the place of [the victim's father], [the accused] knew or ought to have known that there was another person in the place.
4. The place of [the victim's father] was ordinarily used for human habitation.
Count Two
5. [The accused] unlawfully impeded the normal breathing of [the victim].
6. [The accused] did so by manually blocking the nose and mouth of [the victim].
Count Three
7. [The accused] unlawfully impeded the normal blood circulation of [the victim].
8. [The accused] did so by manually applying pressure on or to the neck of [the victim].
Count Four
9. [The accused] sexually penetrated [the victim] by penetrating her vagina with his finger.
10. [The victim] was aged 7 at the time of the sexual penetration.
11. Count Four was committed in the course of conduct that constituted the aggravated home burglary the subject of Count One.
Count Five
12. [The accused] indecently dealt with [the victim] by touching her vaginal area.
[2024] WADC 85
MACLEAN DCJ
13. [The victim] was aged 7 at the time of the indecent dealing.
14. Count Five was committed in the course of conduct that constituted the aggravated home burglary the subject of Count One.
I accept the facts as admitted and am satisfied beyond reasonable doubt that each of the elements as admitted is established.
As each of the elements of the offending are admitted and as the accused is, as a matter of law presumed to be of sound mind, it is for the accused, on the balance of probabilities, to prove that he was by reason of mental impairment deprived of any one of the relevant capacities in s 27 of the Criminal Code (WA) (the Code).
In light of the accused's pleas, the evidence adduced at trial, the relevant provisions of the Code and the positions adopted by the parties at trial, the question that arises for my determination is, was the accused mentally impaired within the meaning of s 27(1) of the Code at the time that he did the acts that constitute the offences. If the accused was mentally impaired at the time that he did the acts that constituted the offending, did his mental impairment deprive him of the second and third capacities as specified in s 27(1) of the Code and, if so, was the accused precluded from relying on the defence of insanity under s 27(1) of the Code because he intentionally caused himself to become intoxicated at the time that he did the acts that constitute the offences within the meaning of s 28(2) of the Code?
Section 27(1) of the Code provides:
27. Insanity (1) A person is not criminally responsible for an act or omission on account of mental impairment 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.
The relevant capacities that the accused claimed to be deprived of were, first, deprived of the capacity to control his actions and/or second, deprived of the capacity to know that he ought not do the act.
Accordingly, it was for the accused to prove that he was suffering from a mental impairment at the relevant time and to establish what that mental impairment was.
[2024] WADC 85
MACLEAN DCJ
The accused has the burden of proving that he was not of sound mind at the time that he did the acts which are alleged to constitute the charged offences. The accused must prove that he was not of sound mind on the balance of probabilities.[2] If the accused does not prove that he was not of sound mind on the balance of probabilities the State will have proved the unlawfulness element of the charged offences beyond reasonable doubt.
[2] R v Porter [1933] HCA 1; (1933) 55 CLR 182, 191.What constitutes a mental illness is a question of law. Whether the facts disclose that state of mental illness is a question of fact.
In opening the State prosecutor, Mr Packham, said:[3]
[3] ts 119. 4 ts 111.
The State accepts that, and it is clear from the statement of Dr Bala that there is some evidence that the accused may have been labouring under some form of psychotic symptomatology around the time of the offending, but the severity of that symptomatology, and indeed the severity of any asserted psychosis, is going to be a critical point because it is not an answer to say a person is psychotic to the question of whether or not a person is deprived of the relevant capacities.
Psychosis appears on a spectrum of severity, and that will be an issue in this matter, the extent to which any psychosis deprived him of the capacities.
The accused did have a previously existing diagnosis of autism spectrum disorder (ASD). This was not challenged.
Further it was not in dispute that people with ASD can present atypically in the context of psychosis.
It was not contended that ASD accounted for the deprivation of the capacities claimed by the accused.
Trial by judge alone - legal principles
Section 120(1)(a) of the CPA provides that I may make any findings and give any verdict the jury could have made or given if the trial had been before a jury.
Section 120(2) of the CPA provides that my judgment must include the principles of law that I have applied and the findings of fact on which I have relied. It is therefore necessary for me to state at this point a number of important principles that I must apply in determining the charges.
[2024] WADC 85
MACLEAN DCJ
Burden and standard of proof
The accused is presumed innocent of the charges that have been brought against him.
The burden of proving the accused's guilt is on the State.
The standard of proof that the State must achieve is proof beyond reasonable doubt. For the State to discharge its burden of proving the guilt of the accused it must prove beyond reasonable doubt that he is guilty of the charged offence. I cannot find the accused guilty of a charged offence unless the State proves to my satisfaction beyond reasonable doubt each element of the charged offence. If the State fails in this regard then the charge is not proven and the only proper verdict is one of not guilty.
Multiple charges
There are five separate charges on the indictment. Each charge could have been the subject of a separate trial before a different judge. However, separate trials have not been held because it would not be fair to the accused or the State for the evidence to be taken on five separate occasions.
Although the charges have been heard together it is important for me to at all times remember that there are five separate charges. I must deal with each charge separately and make a decision on each charge separately. When I am dealing with each charge I must consider only the evidence that is relevant to the charge.
I must not allow a verdict that I arrive at on one of the charges to lead me automatically to the same verdict on the other charge. My verdicts do not have to be the same on each charge. Having considered all of the evidence I may find the accused guilty of all charges, or not guilty of all charges on account of unsoundness of mind, or not guilty of some charges on account of unsoundness of mind and guilty of other charges. All possible permutations are open to me.
I must not draw any inference against the accused or make any conclusions against him or be prejudiced against him because there is more than one charge. The State has decided to charge the accused with five offences. My duty in respect of each charge is to consider the evidence relevant to that charge and on the basis of that evidence arrive at my verdict.
[2024] WADC 85
MACLEAN DCJ
Prejudice and sympathy
I must not allow prejudice or sympathy to play any part in my determination of the charges.
I must decide the case based on the evidence produced during the trial. It is my responsibility to ensure that whatever verdicts I deliver are delivered solely on the basis of the evidence produced during the trial and not on any other matters.
I must assess the evidence dispassionately.
I must not guess or speculate about matters that are not in evidence or look for theories that are not supported by the evidence.
Publicity
I must disregard any media reports of the case.
| Inferences |
In a criminal trial there is no room for guessing, speculating, or looking for theories that are not supported by the evidence. However, I may draw inferences from facts that I find to have been established.
I must not, in respect of any matter on which the burden of proof lies on the State, draw an inference against the accused unless I am satisfied that it is the only inference that is reasonably available to be drawn. This is a reflection of the requirement that the State must prove the charges beyond reasonable doubt.
In relation to any facts from which I am considering drawing an inference against the accused I am not required to consider each fact in isolation. Rather, I must consider the facts as a whole to determine whether the inference is the only inference reasonably available.
Summary of evidence adduced
At the commencement of the trial counsel for the State and counsel for the accused informed me, in substance, that it had been agreed between the State and the accused that a number of documents and other items forming part of the prosecution brief could be tendered by the State with the accused's consent in the absence of the relevant witnesses. The documents and items identified by counsel (specified materials) consisted of three volumes of material described
[2024] WADC 85
MACLEAN DCJ
as Book 1, which contained witness statements and non-expert evidence,4 Book 2 titled 'Medical observational materials relating to the accused', this was a compilation of all relevant medical notes concerning the accused and which were relied upon in varying capacities by the two medico-legal experts engaged by the parties namely Dr Siva Sankrem Valwinder Sing, known as Siva Bala and Dr Adam Dallas Brett, and Book 3 which was referred to as the expert evidence materials namely a compilation of the reports of Dr Brett and Dr Bala,[5] as well as photographs and recordings. In addition, and again at the commencement of the trial, counsel for the State and counsel for the accused informed me that a statement of agreed facts dated 3 September 2024 which had been signed by the accused (statement of agreed facts) had been prepared for tendering as an exhibit.
[5] ts 115.
Section 93 of the CPA provides that if an accused pleads not guilty to a charge on account of unsoundness of mind and the judge is satisfied that the only fact in issue is whether under s 27 of the Code the accused is not criminally responsible for an act or omission on account of unsoundness of mind, the judge may decide the issue on any evidence and in any manner the judge thinks just, if the prosecutor consents and the accused does not object to the judge doing so and if it is in the interests of justice to do so. Having regard to s 93, the positions taken by the parties and the admissions made by the accused (referred to below), I was satisfied that the only fact in issue was whether the accused was not criminally responsible for the charged offences under s 27(1) of the Code and that it was in the interests of justice to receive into evidence the statement of agreed facts and the specified materials for the purpose of determining whether the accused was not criminally responsible under s 27(1) of the Code. I therefore permitted the statement of agreed facts and the specified materials to be tendered as exhibits in the absence of the relevant witness during the course of the trial.
In addition to tendering the statement of agreed facts and the specified materials, the State called Dr Elizabeth Alice Mary Tate and Dr Andrew Thomas to give evidence in the State case and Dr Bala, Consultant Psychiatrist to give evidence in rebuttal of the accused's case.
[2024] WADC 85
MACLEAN DCJ
The accused elected not to give evidence but called Dr Brett, Consultant Psychiatrist to give evidence as part of his case, and also called the accused's mother.
Mental impairment - mental illness
Section 1(1) of the Code defines 'mental impairment' to mean an 'intellectual disability, mental illness, brain damage or senility'.
Section 1(1) of the Code also defines the term 'mental illness'. The definition is in the following terms:
[A]n underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.
What is a mental illness is a question of law. Whether or not the facts disclose a state of mental illness is a question of fact.[6]
[6] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 49, 60.
The definition of 'mental illness' contained in s 1(1) of the Code reflects statements made by King CJ in R v Radford[7] about the meaning of the expression 'disease of the mind' which is used in the common law concept of insanity, and these were summarised in The State of Western Australia v Jones as follows:[8]
[7] R v Radford (1985) 42 SASR 266, 274 - 275.
[8] The State of Western Australia v Jones [2018] WASC 395 [43].1. 'Disease of the mind' is synonymous with 'mental illness';
2. A temporary disorder or disturbance of an otherwise healthy mind caused by external factors is not properly regarded as a disease of the mind;
3. Major mental illness or psychoses such as schizophrenia are clearly diseases of the mind as are physical diseases, such as psychomotor epilepsy and arterio sclerosis, when they affect the soundness of the mental faculties;
4. Disease of the mind is to be distinguished from 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control and impulsiveness'; and
[2024] WADC 85
MACLEAN DCJ
5. In order to constitute insanity in the eyes of the law the malfunction of the mental faculties 'must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can properly be termed mental illness, as distinct from the reaction of a healthy mind to extraordinary stimuli'.[9]
[9] In R v Falconer (54), (60), (76), (82) King CJ's comments as summarised by Jenkins J were generally
Capacity to control actions
'Capacity to control' as used in s 27(1) of the Code bears its ordinary plain meaning.[10] The ordinary plain meaning of the word 'capacity' given the context in which it is being used in s 27(1), is 'a mental power; a faculty'.[11] The ordinary plain meaning of the word 'control' is 'the power of restraining especially self-restraint'.[12]
[10] The State of Western Australia v Taylor [2021] WASC 470 [50].
[11] Australian Concise Oxford Dictionary (5th ed), page 203.
[12] Australian Concise Oxford Dictionary (5th ed), page 303.
A person is deprived of the capacity to control their actions if 'they are deprived of the capacity to make a conscious decision to act (that is, to act voluntarily) or if they are deprived of the capacity to refrain or restrain themselves from doing a willed act (sometimes also referred to as the capacity to exercise the power of choice to act)'. A person may lack the capacity to control their actions as a result of a mental impairment even though their act was willed - for example, because they acted on a delusional belief or other psychotic phenomena that overwhelmed their capacity to control their actions.
A significantly impaired capacity to resist an impulse or an emotion does not equate to a deprivation of a person's capacity to control their actions within the meaning of s 27(1).[13]
[13] The State of Western Australia v Marotta [2018] WASC 329 [45].
Capacity to know that ought not do the acts
The question whether an accused person has the capacity to know that he or she ought not to do the charged act or make the charged omission requires the court to determine whether, at the time of the act or omission, the accused was able to appreciate that the act or omission was wrong according to ordinary community standards. The issue is whether, due to a mental impairment, the accused lacked the capacity to reason rationally as to what is right or wrong according to ordinary community standards.
[2024] WADC 85
MACLEAN DCJ
There is no requirement that an accused person knew that the act was wrong in the sense of being contrary to law. What is required is that the accused knew 'right from wrong, good from evil, not legality from illegality'.
The term 'know' means 'understanding, appreciate or comprehend'. Knowledge (short of understanding) that to kill is punishable by law does not prevent a finding that a person lacked the capacity to reason rationally as to what is right or wrong according to ordinary standards. Further, a finding of incapacity does not depend upon proof of a positive belief in the rightness of the accused's act.
As to what is meant by 'capacity to know that he ought not to do the act or make the omission':
• The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong? • If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. • What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.
A person will be deprived of the capacity to know that they ought not to do the act or make the omission if they have a complete incapacity to understand, appreciate or comprehend that the act or omission is wrong according to ordinary standards (as distinct from unlawful).
It is dangerous to test a person's capacity to know that they ought not to do an act or make an omission by reference to the standards of persons who do not suffer from a mental illness.[14]
[14] The State of Western Australia v Taylor [54] - [60] and the cases cited therein.
Intoxication and insanity - applicable legal principles
Section 28 of the 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.
[2024] WADC 85
MACLEAN DCJ
(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.
Relationship between s 27 and s 28 of the Code[15]
Section 28(2) states that s 27(1) of the Code does not apply if an accused has intentionally caused himself or herself to become intoxicated or stupefied.
So, if at the time of doing the acts which are the subject of each count in the indictment the accused was intoxicated or stupefied and had intentionally caused himself to become intoxicated or stupefied, within s 28(2); and that intoxication or stupefaction caused the accused to suffer from a 'mental impairment', as defined in s 1(1), when he did the relevant act.
The accused is unable to rely upon s 27(1), even if the state of that 'mental impairment' deprived him of at least one of the capacities referred to in s 27(1).
If the accused 'intentionally caused himself to become intoxicated', that defence is not open to him.
So, by s 28(2), if an accused has intentionally caused himself to become intoxicated or stupefied, the accused is not relieved of criminal responsibility if the intoxication or stupefaction deprives him of one or more of the capacities referred to in s 27(1).
However s 28(2) does not preclude the accused, if he intentionally caused himself 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)
he suffered from a 'mental impairment', as defined in s 1(1), independently of and without regard to the accused's intoxication or stupefaction; and
[2024] WADC 85
MACLEAN DCJ
(b) at the time of doing the relevant act, he was in such a state of 'mental impairment', as defined in s 1(1), as to deprive him 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.
So if the accused intentionally caused himself to become intoxicated, he may rely upon the excuse in s 27(1) if he can prove that it was a 'mental impairment' (as defined in s 1(1)), independently of and without regard to the intoxication, which caused him to be deprived of a relevant capacity (referred to in s 27(1)).
So this means that, if the accused had a mental impairment at the time of doing the act, he is not relieved of criminal responsibility if that mental impairment was caused by, triggered, contributed to, or exacerbated by, intentional intoxication, even if that state caused the loss of one of the capacities referred to in the paragraph.
The accused would not be relieved of criminal responsibility if his intentional intoxication caused the loss of one of the capacities referred to in the paragraph.
Legal principles relating to the assessment of expert psychiatric opinion
evidence where the issue of insanity is raised[16]
In Hone v The State of Western Australia the Court of Appeal considered the significance of uncontradicted expert psychiatric opinion evidence where the issue of insanity is raised by an accused. In that case Miller JA said the following:[17]
[17] Hone v The State of Western Australia [2007] WASCA 283 [124]. See also the comments made by
Neither a jury nor a judge sitting alone are bound to accept and act upon expert evidence. But where there is no evidence to contradict that
evidence, a verdict cannot be given contrary to it. …
(original emphasis)
In short, I am not bound to accept and act upon expert opinion evidence but I must act on the evidence. If there is no evidence, fact or circumstance that contradicts the evidence or warrants a conclusion that the evidence is unreliable, a verdict cannot be given that is contrary to the evidence. Expert evidence cannot be disregarded capriciously.
[2024] WADC 85
MACLEAN DCJ
In this case Dr Bala agreed with Dr Brett's opinion that the accused is suffering from a psychotic disorder. He opined that individuals with ASD are more prone to psychotic illness.[18] Furthermore in that report Dr Bala expressed the view:[19]
[18] Exhibit 11, Book 3, page 148, par 310.
[19] Exhibit 11, Book 3, page 156, par 660.
… I agree with Dr Brett that [the accused] has autism spectrum
disorder, an unspecified psychotic disorder and paedophilic disorder or orientation, based on all the information I have read. I would add the diagnosis of an alcohol and (probable) cannabis use disorder. It is difficult to agree or disagree with Dr Brett, given that I have not interviewed [the accused]. However, I have a strong suspicion that an equally competing formulation to Dr Brett's is that [the accused] was impaired rather than deprived of the relevant capacities at the time of
the offending, …
In his report dated 19 October 2022,[20] Dr Brett said:
[20] Exhibit 11, Book 3, page 74, par 20.
I believe that at the time of the offences, [the accused] was deprived of
the capacity to control his actions. …
And further Dr Brett expressed the belief that the accused's mental impairment deprived him of the capacity to know that he ought not do the act.[21]
[21] Exhibit 11, Book 3, page 74, par 21.
Dr Brett said:[22]
[22] Exhibit 11, Book 3, page 74, par 23.I considered whether the offending was driven by paedophilia and sexual deviance. I believe that his disorder of sexual preference was significant in the commission of the offence, however, I do not think it
is sufficient. …
The issue in this case is whether or not the psychotic disorder that the accused suffered was of such a nature as to completely deprive him of capacity to control his actions or to know that he ought not do the act in relation to the act in each count on the indictment.
The expert opinion evidence was in agreeance insofar as the accused having:
(a) ASD; (b) an unspecified psychotic disorder; and (c) (and although differently expressed) a paedophilic disorder.
[2024] WADC 85
MACLEAN DCJ
There is no evidence, fact or circumstance that contradicts the joint opinion and as such I make findings consistent with [69] above.
Counsel for the accused did not make an opening statement however clarified from the outset that the only issue is the question of the florid psychosis and how it affected the accused at the material time.[23]
[23] ts 121 - ts 122.
The State case
The State played at the outset the video record of interview with the victim, a transcript of which appeared in Exhibit 7, Book 1, page 1.
In the course of the child witness interview, the victim said:
• the man sticky-taped my mouth;[24] • cover my mouth and nose with his hands so I couldn't breathe;[25] •
he didn't want me talking. And then, he tried to jab me with his thing;[26]
• he kept telling me to be quiet;[27] • [her body] felt weird; • I did not have all these scratches this morning; • [she] woke up with a different t-shirt; • I wasn't wearing the same t-shirt I wore to bed;[28] • he did something with my private parts;[29] •
[when describing what he did with her private parts said] I think it was opening and shutting it;[30]
• before he did that, he said, 'I know it's embarrassing';[31] [24] Exhibit 7, Book 1, page 3.
[25] Exhibit 7, Book 1, page 3.
[26] Exhibit 7, Book 1, page 3.
[27] Exhibit 7, Book 1, page 4.
[28] Exhibit 7, Book 1, page 4.
[29] Exhibit 7, Book 1, page 5.
[30] Exhibit 7, Book 1, page 6.
[31] Exhibit 7, Book 1, page 6. 32 Exhibit 7, Book 1, page 7.
[2024] WADC 85
MACLEAN DCJ
•
[insofar as saying it was embarrassing, said] It was because he told me to take my pants down and he knew it was embarrassing;32
•
I feel like I was sleeping. And then, I woke up, seeing a man taping my mouth. But I'm not sure if it's - that was when I was still sleeping and that was my nightmare;[33]
•
[indicated scratches on her body and gave evidence that] when I went to bed, I did not have a single one of these scratches.[34]
[33] Exhibit 7, Book 1, page 8.
[34] Exhibit 7, Book 1, page 11.
Further, the victim described:
• that when he tried to pull her pants down that was after he covered her mouth and nose;[35] • the manner in which he put her private parts in and out with his hands by way of a twisting motion with her hands;[36] • she was not sure what happened to the tape and thought for some reason it disappeared because the man did not rip it off;[37] • she has not ever seen the man before;[38] and • she told her mother and father first thing in the morning.[39] [35] Exhibit 7, Book 1, page 12.
[36] Exhibit 7, Book 1, page 13.
[37] Exhibit 7, Book 1, page 17.
[38] Exhibit 7, Book 1, page 18.
[39] Exhibit 7, Book 1, page 19.
The State played and tendered a video pan of the victim's home.[40]
[40] Exhibit 1.The State played closed circuit television (CCTV) footage of the street where the victim's home was and of streets in the near vicinity. The CCTV footage was retrieved by police in the days following the offending.
CCTV footage revealed some of the accused's movements prior to and after the offending.
[2024] WADC 85
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The evidence, including the CCTV footage, demonstrates:
• The accused left his home just after midnight on 27 December 2021. • At 12.27 am - 12.35 am CCTV captured the accused looking over a fence near the victim's home but not the fence of the victim's home. • A vehicle approached with its headlights illuminated and the accused hid behind a bush so that those in the vehicle could not see him. • The accused then went back to the fence and tried to get over but stopped when another vehicle came and he hid behind the bush again. • He left the area and returned with a backpack and then jumped over the fence. • On the first occasion when he attempted to get over the fence an item appeared to drop from his pocket and roll and he retrieved that item. • The offending happened at some point most likely between 12.35 am and 2.40 am on 27 December 2021. • The accused was seen for the last time at 1.21 am in the vicinity of his home and then seen at 2.38 am by way of torch light at the front of the victim's home.[41] [41] ts 132.
The State played an interview conducted between members of the Western Australia Police Force and the accused on 29 December 2021 referred to in these reasons as the first police interview. A transcript of this appeared at Exhibit 7, Book 1, page 44.
The video record of interview became Exhibit 5.
When asked to tell his involvement in the incident, the accused
said:[42]
[42] Exhibit 7, Book 1, page 50. 43 Exhibit 7, Book 1, page 62.
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Um, I forcefully entered the house through the, um - the top sliding window of the bathroom, and, ah, entered the girl's bedroom. Um, and assaulted her, and penetrated her, and choked her.
And then cleaned her up, and then re-dressed her, and put her to bed, and then left. But I didn't really damage any property there or anything like that, so - - -
And further:
• he had not seen the occupants there before he jumped the fence; • he had not planned this specific house it was just an opportunity; • he knew how to get into the house because the sliding bathroom window was accessible; • he was looking for a petty theft but realised the house was accessible through that way; • he was looking for anything that could fit in a backpack that was of value; and • he checked the house next door but thought they had pets, which he did not want to startle.
The accused was asked how he entered the home and whether that made much noise:43
DS BROADLEY: Um, did that make much noise, or did you keep that noise fairly quiet?
[ACCUSED]: Relatively, but I was still very, sort of, paranoid of the noise, and I'm surprised that no one woke up to be honest. It was very strange.
The accused was asked in the interview about the contents of the backpack. He told police that it contained sticky tape. He described it as being 'box packing tape or something'.[44] He was asked why he had that in his bag:
[44] Exhibit 7, Book 1, page 63. 45 Exhibit 7, Book 1, page 66.
[ACCUSED]: Um, it sounds weird, but, like, in case anyone, like, was alerted. I could, like, sort of subdue them, and like, sort of, just tie their hands up kind of thing, in case they tried to come after me or something like that.
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DS BROADLEY: Okay.
[ACCUSED]: 'Cause I didn't wanna, like, hurt anyone. That wasn't my
intention at all.
DS BROADLEY: Yep.
[ACCUSED]: So it was just a sort of defence thing, without, you know, bringing, like, a weapon - like a baseball bat or something like that, you know.
DS BROADLEY: Cool.
The accused was asked about finding himself in the bath tub and whether there was a door on the bathroom and what happened next and he answered:
Um, I kind of looked around to see, like, in the, um - in the main sort of, um - what's it called? Like, the family room, just to look for any real items, but I, um - it - yeah, I didn't really anything too much of interest, and was a little bit sort of spooked by the whole thing, 'cause I - I've never done anything like that before, so it was a bit, like - adrenaline rush, hair-raising sort of thing, you know.
The accused continued and he told police:
Um, I went kind of like down the hallway, and then saw the kids rooms, and just went in. Um - um, I checked both of them, but there wasn't really much there, and then - yeah, I dunno why I then did what I did, but - 'cause that wasn't my intention to begin with, but I just - I dunno.
He knew they were kids rooms because there were names on the
doors.45
He continued:[46]
[46] Exhibit 7, Book 1, page 66. 47 Exhibit 7, Book 1, page 68. 48 Exhibit 7, Book 1, page 73.
Yeah. Just sort of popped my head into the first one, and - but it was like dark, and the other one had a light on, and that's the one that I went into with the little girl.
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The accused told police he had a phone torch. He was worried about waking people up so he used it very sparingly. He was asked about a room with lights on being the room with the victim in it and told police:47
[ACCUSED]: Um - um, there was like another room in that room with the door closed, and I went in and checked that, and there was just like a wardrobe, and then, um, she - 'cause I like opened and closed the door, she like awoke, and then I like, quickly went to, like, quiet her sort of thing. If that makes sense, and then, um - yeah, one thing sort of led to another, and just stuff I'm not happy to talk about happened, but you already know the details anyway. It's the charges that you're laying me with, so - - -
DS BROADLEY: So, um - - -
[ACCUSED]: I will preface though that I never actually ejaculated throughout the whole entire thing. I - I didn't actually really enjoy it, to be honest. I don't even know why the fuck I did it, and like - I just - I saw how distraught she was, and so I just - I wanted to, like, clean her up, and just - um, so I went back into that bathroom that - and where I snuck into, and just washed her, and then put, um - carried her back to bed, and dressed her and then left.
The accused recalled his efforts to be quiet and not to use his phone light so as not to wake anyone; he placed his hand over the victim's mouth to stop her from screaming.
Insofar as the police officers' inquiries of wounding went there was a very definite and emphatic denial.
The accused was asked about the word 'strangled' and he was emphatic that he did not strangle but it was a choke. He explained that his intention with regard to choking the victim was to cause unconsciousness; he was at pains to explain that he had no intent to kill the victim.
He told police about his use of her name to calm her down and that he had noticed her name from the bedroom door. He told police about the offer of her Tigger toy to calm her down and his soothing words to calm her.
He told police about changing her pants because she urinated
herself.
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He told police that he went into her room to look for valuables and that the light was already on.
The accused was asked about putting his hands around her throat and trying to restrict her blood. He answered:48
[ACCUSED]: Yeah - yeah, but I - I didn't ever wanna kill her or anything like that. Like, um, she did sort of like, um, sort of, I guess, lose consciousness for a moment, and then I immediately checked to make sure that her heartbeat was still going, and all that, and I would have called the ambulance. I would have resuscitated her. I would have done anything in my power to make sure that she would have, um, survived. I didn't - - -
The accused confirmed that he had put his hand on the victim's mouth to stop her talking and from making noise;[49] that he thought he used her name to calm her down;[50] that he tried to restrict her blood flow and that she may have passed out and urinated herself;[51] and that he took her pants off.[52]
[49] Exhibit 7, Book 1, page 78.
[50] Exhibit 7, Book 1, page 79.
[51] Exhibit 7, Book 1, page 79.
[52] Exhibit 7, Book 1, page 79.
He was asked then what happened and said:[53]
[53] Exhibit 7, Book 1, pages 79 - 80. 54 Exhibit 7, Book 1, pages 80 - 81.
[ACCUSED]: Um, I just sort of, like, moved them aside to sort of dry, um - and then I just made the bad decision of, um, playing with her genitals with my hands. Um, which I know I definitely shouldn't have done. Um, but I never like, penis penetrated or anything like that. It was just a finger. Um, and it wasn't multiple fingers at once. It was just one. I wasn't going for anything.
…
[ACCUSED]: Yeah, and she was - yeah, oh, understandably very distraught by it all, and I - yeah. Just felt kind of terrible about the whole situation.
He agreed it was something he wanted to do at that time and told police that it was with much regret and he did not know why he did that.
He told police that he should have left the room after he cleaned
her up.
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He also told police that he took his penis out of his pants but could not get hard but that for a split moment he did feel sexually aroused. And then said:54
[ACCUSED]: But then after just seeing how she looked, and her facial expressions, I just snapped out of it, and I really didn't like it at - at that point, and then I decided to, um, take her to the bathroom, and wash her, um - um, because - yeah, I just - ah, I don't wanna make this about myself, but I was raped once, but - anyway, that's not what we're talking about, and I just remember the gross feelings of being used, and downstairs stuff, and I just - it kind of triggered me a little bit. So that's why I went to wash her, and then I put her back in her bed, and dressed her with, um - um, with, like, a new shirt at least, 'cause most of it - sort of like, kind of went on her shirt, and then, um, obviously her pants, but I tried to look for new pants, but I couldn't, and so I just wanted to, sort of just put those on, and get out of there, and then that's when I commented on the plush toy, and then, um - yeah, tucked her into bed, basically, and, um, turned the fan on for her, 'cause she kind of looks like uncomfortable and hot. I mean, uncomfortable, probably for many reasons, but also like hot, and so I turned her fan on and then left through the laundry door.
The accused told police that he touched the victim's vagina and he agreed that he penetrated her with his finger. He also said that he tried to stimulate her, telling police:[55]
[55] Exhibit 7, Book 1, pages 81 - 82.
[ACCUSED]: I think - yeah, briefly, but - like, she wasn't enjoying it or anything, and I just got weirded out, and grossed out, and so I stopped.
DS BROADLEY: Okay.
[ACCUSED]: Um, yeah.
DS BROADLEY: And when you said you penetrated her vagina, how - how far, um, did you penetrate her?
[ACCUSED]: Mmm, pfft - not past the middle knuckle.
DS BROADLEY: The middle knuckle?
[ACCUSED]: Yeah, so not past that at all, yeah.
And that:[56]
[56] Exhibit 7, Book 1, page 82. 57 Exhibit 7, Book 1, page 83.
[ACCUSED]: - - - it was for probably no more than like 30 seconds at
the longest. Um - - -
DS BROADLEY: Uh-huh.
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[ACCUSED]: Mmm, yeah. 'Cause everything just like sort of slowed down and felt weird, and - yeah, I didn't - but after seeing how distraught she was, I just - I stopped. I didn't really like it. Um - yeah.
The accused continued telling police:57
[ACCUSED]: Just while I was doing that, but I didn't go anywhere in terms of like going near her - her vagina with my penis or anything like that. I wasn't - yeah. I couldn't even really get hard, so I dunno. I don't even know why I pulled it out, to be honest. It was weird, and - just - - -
DS BROADLEY: Okay.
[ACCUSED]: That's why I wanted to pause the interview. I just feel
gross, and ashamed, and just horrible.
The accused was asked:[58]
[58] Exhibit 7, Book 1, page 84.
DS BROADLEY: Okay. Um, thank you. So if we talk about her clothes, you said that, um, at - at that point, um, you - well, let's actually - you took your penis out whilst you were, um, penetrating her with your finger?
[ACCUSED]: Mmm.
DS BROADLEY: You weren't able to get an erection.
[ACCUSED]: Mmm.
DS BROADLEY: And so what happened then?
[ACCUSED]: I, um - like, I kind of put her on my chest, but I didn't go in terms of, um, like really trying to do anything, because like I knew that I was flaccid, and I sort of just kind of sat there with her for a moment. Realised nothing was happening, but - and then felt - yeah, grossed, and weirded out, and then - and at that point, I wasn't, um - I was just like stimulating the outside of her vagina, and I wasn't like penetrating when she was on top of me. Um, I never went on top of her either. It was only her on top of me. Um, and then that's when - yeah, it was just, um - ah, but that's when I felt really gross, and weird, and then - - -
The accused was asked how she got there and he told police that he picked her up and put her on top of him and said:[59]
[59] Exhibit 7, Book 1, page 86.[ACCUSED]: She didn't mount me or anything like that. It was - yeah.
DS BROADLEY: Yep, and - and why?
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[ACCUSED]: Um, I dunno. It was - I don't know. I guess I was like trying to get stimulated, but it didn't end up working at all. So - yeah. I - I guess the intent was very, um, evil, I suppose, and selfish. But, um, it didn't end up going that way 'cause - - -
DS BROADLEY: Yep, yeah.
[ACCUSED]: - - - yeah. Performance issues, I suppose you could say.
DS BROADLEY: So just in that moment.
[ACCUSED]: Yeah.
DS BROADLEY: Um, had you been able to - ah, sustain an erection.
[ACCUSED]: Mmm.
DS BROADLEY: Ah, was you - what - was your thought to have sex with her in the moment?
[ACCUSED]: Yeah, possibly.
DS BROADLEY: Yeah, okay. Well, when you say possibly, I mean -
I mean, was it?
[ACCUSED]: Y - yeah.
The accused was asked about taking her to the bathroom and then he told police:[60]
[60] Exhibit 7, Book 1, pages 87 - 88.[ACCUSED]: I picked her up and then, um, took her to the bathroom to wash her with - obviously the hand over the mouth, so she wouldn't make any noise while I was moving from her room to the bathroom, yeah, and I went to place her in the bath. She actually got a little bit scared, and like clung onto me, 'cause she thought I was gonna drop her. I was like, 'No, I'm not gonna drop you, goodness, I'm not that mean,' and then I put her into the bath, and then just sort of - hurriedly sort of tried to wash her. It's not like I sat there and filled the whole bath up or anything like that. I wasn't - it wasn't, ah, taking my time sort of thing. I was like - - -
DS BROADLEY: Yeah.
[ACCUSED]: Just to get her clean, so she's like, not - you know, sitting
in her own urine and all that, and - - -
DS BROADLEY: Yep.
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[ACCUSED]: - - - potentially getting a rash or whatever, and then, um, I dried her with the towel, and then, um, dressed her, and then - yeah, put her to bed, and she - yeah, she was very tired. She basically went to sleep straight away, and I was like, 'okay, I - if I was in your position, I don't know if I would just fall asleep like that, but sure,' and then I just left. I - I wasn't going any further with any of that stuff. I wasn't thinking about stealing anything after that. I was just like, I'm getting the fuck out of here. I just - yeah.
The accused told police that his intention in cleaning her was not to cover his tracks by way of removing forensic evidence but rather to get her clean of the urine.[61]
[61] Exhibit 7, Book 1, page 89.As to the reasons he put the victim on his chest:[62]
[62] Exhibit 7, Book 1, pages 90 - 91.
[ACCUSED]: But the reason why I put her up on the chest, I don't know exactly. I was just - yeah, I dunno. I just - I dunno. I just kind of wanted to hold her for some reason. I don't know why though. I just like wanted her face up near me for some reason, which is weird, but - yeah.
DS BROADLEY: Um, and so you're in the bath. Splashed some water on her, and - and cleaned her a little bit. And when you say you cleaned her, did you use any soap, or is it just the water?
[ACCUSED]: No, um, I didn't wanna, like, risk, like, getting soap, like, in the - sort of like, um - like, those private areas, because it can cause, like, irritation and all that stuff.
DS BROADLEY: Yep, uh-huh.
[ACCUSED]: Um, I did study biology in schools. Ah, and - and in university, so I know like, the vagina is like a self-cleaning sort of thing, and you don't need to, like, use soaps or anything like that.
The accused was asked about the tape and where it went. He told police that he took it, he put it in the bag and he ended up throwing it away in a bin.[63]
[63] Exhibit 7, Book 1, page 94.
In response to where he threw it, the accused told police that he threw it away because:[64]
[64] Exhibit 7, Book 1, pages 94 - 95. 65 Exhibit 7, Book 1, pages 96 - 97.
• there was evidence of her hair being on the tape;
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• he threw it in an outside bin to get rid of any evidence; and • he realised he would be linked to what occurred if he kept it.
The accused was asked if he removed any of his clothing. He told
police:65
Nah, I left my shirt on, and I left the pants on. The shoes, all that. I didn't wanna like - I'd say it wasn't like, a stay there for very long sort of thing. It was like a - sort of in and out kind of thing, yeah. It was just, ah - as we've already discussed, like a weird sexual sort of thing that popped into my mind, is what kept me there for longer than, um, just wanting to, like, sort of silence her, and then get out, I guess. So - yeah, that's where you - you got me for being a piece of shit, basically, yeah.
The accused was asked whether he had a syringe and whether he injected the victim and he responded 'Goodness, no',[66] and he appeared to respond with some vigour. He asked police whether there was any evidence of her being stabbed with something,[67] and he was definite and emphatic.
[66] Exhibit 7, Book 1, page 97.
[67] Exhibit 7, Book 1, page 98.
In the course of the first police interview the accused described in detail where he applied pressure to the victim's neck and where he was trying to avoid. His intent was to cut off her oxygen supply so that she would become unconscious and not to suffocate her. He emphasised that suffocation was painful, the other was quite painful but not nearly so, saying:[68]
[68] Exhibit 7, Book 1, page 100.
[ACCUSED]: You've got like the aortas that run up the side - - -
DS BROADLEY: Yeah.
[ACCUSED]: … you're not gonna have, like, that burning lung sort of
sensation of, like, gasping for air, like, you're drowning - - -
The accused described leaving the bedroom agreeing that he left the light on and shut the door[69] and was asked what he did when he got home. He answered:[70]
[69] Exhibit 7, Book 1, page 102.
[70] Exhibit 7, Book 1, page 103. 71 Exhibit 7, Book 1, page 106.
Um, pfft, sat there all fucked up. Just - and I drank a bunch, and then I fell asleep, 'cause I - yeah, I didn't like what happened, to be honest, after I was - yeah, but I didn't go out again or anything like that. I just - yeah.
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In relation to alcohol consumption, the accused was asked whether he had drunk any before going out in the night. He said:71
Um, possibly, but, like, I wouldn't have drunk, like, um, a lot because like, um, you know, trying to be stealthy and all that. You don't wanna be like intoxicated.
Because you're gonna compromise yourself, climbing over stuff, and trying to balance on things.
When asked about understanding what was going on and the use of alcohol, the accused said:[72]
[72] Exhibit 7, Book 1, page 107.
I mean, yeah, it's a possibility. It could have im - impaired me to a degree for sure. Like, um, the - yeah, I would say, yes. In terms of, like, the lowered inhibitions to even, like, attempt pulling a fly screen off of a home while, like, it's in the middle of the night, kind of thing.
He told police that he had not used any other drug such as cannabis before going out[73] but did tell police that earlier in the day at 'Like 12.00, I would have had one [cone] or something like that'.[74]
[73] Exhibit 7, Book 1, page 107.
[74] Exhibit 7, Book 1, page 108.
He told police that he was not affected by cannabis at the point of heading out that night.[75]
[75] Exhibit 7, Book 1, page 109.
He told police that he believed police knocked on the door on 28 December and that his father would not answer the door so he went and spoke to them and told the interviewing detective:[76]
[76] Exhibit 7, Book 1, page 110.
They said that they were just investigating a serious incident, but I didn't really, um, probe at all. Um - yeah. Obviously, I probably suspected that it could have been that, but - you know, at that point, I hadn't made up my mind to, um, go and talk to you guys about it, so - - -
He told police that he was going to jump off his roof into the neighbour's yard behind there to kill himself but he was too much of a pussy and could not do it.[77]
[77] Exhibit 7, Book 1, pages 110, 111.
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He was asked about walking into the Ellenbrook Police Station[78] and he said the catalyst for that was 'horrible feelings. Just feeling like shit'.
[78] Exhibit 7, Book 1, page 111.He was asked whether something had happened with his father that afternoon and told police that he did not want to talk about it.[79] He told police in response to a question whether his father asked him about this incident:[80]
[79] Exhibit 7, Book 1, page 112.
[80] Exhibit 7, Book 1, pages 112 - 113.
[ACCUSED]: Um, no he was mumbling some bullshit conspiracy stuff. 'Cause he's a - he has some terrible mental health problems, and pfft - he's just an arsehole of a dad anyway as it is, and he th - um, he, like, thinks I'm, like, an alien or some bullshit. He has, like, these weird conspiracies of, like, people being, like, shape shifting aliens or something. It's really weird. It's creepy, and -
DS BROADLEY: Okay.
Later in the course of the interview the accused told police that he found children visually appealing and considered that he suffered from paedophilia. He described:[81]
[81] Exhibit 7, Book 1, page 117.
I dunno. I just like the - the faces, and the eyes, and the - um, I think that's really the main thing. I don't really know why I feel that way, but, um - like, I still find adult women attractive though. I like adult women. I'm not just like a - purely kid orientated or anything like that. No. Um, it's just like a - a weird side fetish if you will.
Later in the interview he described his attendance at the front desk of the police station and what appeared to be his shock at learning that the victim was 7 years of age.[82]
[82] Exhibit 7, Book 1, page 118.
He was asked about his attendance and said:[83]
[83] Exhibit 7, Book 1, page 118.I just felt terrible, and as I say, I was too much of a pussy to kill myself, so it was like, well, just go face the lie. Go face justice, and just - I just hope I don't get shanked and bleed out over the course of 2 days in a prison cell, or you know, get a broomstick shoved up my arse or whatever the other bullshit that happens to paedophiles. So I was - I dunno, just hoping - make like a - sort of like a backyard deal where one of you can just fucking - end me. Just humanely, just shoot me.
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Police commented that the accused was feeling a bit sad. He described himself as beyond sad. His appearance in the interview at this point was that of a person who was very sad and he appeared to be crying.
The State also tendered two photographs which showed the accused attending at his workplace the next morning at 6.22 am.[84]
[84] Exhibit 7, Book 1, pages 121 - 122.The accused was interviewed for a second time (the second police interview) on 4 February 2022. The interview became Exhibit 6 and ran for 57 minutes.
In the second police interview the accused expressed that the catalyst for him to hand himself in was that he could not live with himself.[85] He was asked about the disagreement with his father and he exercised his right to make no comment.[86]
[85] Exhibit 5, page 189.
[86] Exhibit 5, page 189.
He told police that he did not remember any super specifics about the night, that is when the offences took place, right now given it had been too long.[87]
[87] Exhibit 5, page 194.
He told police that insofar as a motive went, it was to go stealing.[88]
[88] Exhibit 5, page 204.
The State read in statements from the victim's parents. They gave evidence of complaint as well as her appearance and presentation the morning after the offending and the layout of the house.
The victim's father noted that the victim appeared raggedy and tired and looked white as a ghost.[89] He thought that she may have had a reaction to swimming in a pool from the day before.
[89] ts 149.
The victim told her father that there was a man in her room who was holding her down and took her shorts off.[90] The victim looked very upset when she told him this. He noticed some small cuts to her face that had not been there the night before.
[90] ts 149.The victim's mother gave a description of the house and drew a plan of the house on a piece of paper.
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The victim's mother spoke to her friend who was a police officer and then contacted police.
The victim's mother gave an account of what the family had done, including the victim on Boxing Day, which was the day before.
The victim's mother noted that the victim was wearing a different top.[91] She noted the victim's eyes were swollen and appeared to have a rash across her eyes.[92] She noted that the victim had dark spots behind her ear and scratches that looked like fingernail marks.[93]
[91] Exhibit 7, Book 1, page 236.[92] Exhibit 7, Book 1, page 237.
[93] Exhibit 7, Book 1, page 237.
The State read into evidence the statement of Detective Sergeant Gregor Hart.[94] He, together with Detective Senior Constable Luke John Bermingham, assisted Detective Senior Constable Hobbs with door knocks and surveillance collection in the area to the west of the incident scene.[95] One of the houses called upon was the house where the accused lived with his parents.
[94] Exhibit 7, Book 1, page 244.
[95] Exhibit 7, Book 1, page 244.Detective Hart described an encounter with the accused at about 12.30 pm on 29 December 2021.
Detective Hart had a conversation with the accused, who apologised for not answering the door. The accused told police there were no cameras at his house and told police that he had been home all night and had not seen anything out of the ordinary. He also told police that his father did not have a good relationship with the police and would probably not talk to them.
The State read into evidence the statement of Detective
Bermingham.
Detective Bermingham was present with Detective Hart and confirmed his evidence in relation to the conversation with the accused.
I am satisfied, and find, the conversation between the accused and Detectives Hart and Bermingham was significant in that the accused lied about being at home all night and having not seen anything out of the ordinary.
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A part of the delusional thinking the accused was said to be experiencing was the need to be apprehended by police, that is, the only goal was to commit the offence and go to prison.[96] It was significant insofar as the accused knew why the police were there, that is, in response to the event that he had caused and did not confess his involvement or surrender to police at that time. The lie and the failure to confess appears inconsistent with the stated goal of the delusions.
[96] ts 462; Exhibit 11, Book 3, page 193, par 53.The conversation is significant insofar as it demonstrates an insight on the accused's part to understand, very shortly after the event, the wrongfulness of his actions in offending against the victim and the wrongfulness in his actions in respect of all counts on the indictment. This is the subject of specific opinions expressed by Dr Bala which will be addressed later in these reasons.
The State read into evidence a statement from Detective Senior Constable Ben James Le Feuvre. Detective Le Feuvre was assisting in collecting CCTV footage.[97] On 29 December 2021 at about 3.30 pm he was with Detective Sergeant Shane Mark Hugo. He saw a person who appeared to be distressed and learned that this was the accused's father. The accused's father had some obvious bruising and minor scrapes and red marks on his body.[98] The accused's father told Detective Le Feuvre that he had just been assaulted by his son, the accused.
[97] ts 165.
[98] ts 166.
The accused's father told Detective Le Feuvre that the accused had armed himself with a large kitchen knife and that the assault had only just occurred.
At some point the accused's mother, arrived.[99]
[99] ts 166.
Detective Le Feuvre saw the accused leave the front door of the house where he lived. He walked straight towards a vehicle parked at the front of that house.[100] Detective Le Feuvre attempted to speak with the accused however the accused ignored him and got into his vehicle and drove off in a manner described as calm and safe. The accused's father told Detective Le Feuvre that the accused had changed since yesterday and that the accused believed his father was an alien. In response to a question from Detective Hugo as to why he would say this about his son, the accused's father said 'He has just changed since that thing across the road happened'.[101]
[100] ts 167.
[101] ts 167, ts 168.
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The conversations that the accused's parents had with Detective Le Feuvre were recorded on Detective Le Feuvre's AXON mobile phone device after their rights had been given to them in accordance with s 28 of the Criminal Investigation Act 2006 (WA).[102] The accused's mother made a statement to police to the effect that the accused's behaviour had been normal.
[102] ts 168.The State read into evidence the statement of Detective Hugo. Detective Hugo was in company with Detective Le Feuvre at the time the accused's father approached and gave confirmatory evidence of the events described by Detective Le Feuvre.
The State read into evidence a statement from MA. MA was the customer service officer at Ellenbrook Police Station. She was at work on Wednesday, 29 December 2021 and described the event at about 5.30 pm when the accused came into the police station and told her that he would like to make a confession to raping the 7-year-old girl.[103] MA contacted detectives in the police station who came out and spoke to the accused.[104]
[103] ts 175.
[104] ts 176.
The State read into evidence a statement from Detective Senior Constable Keegan William Scott.
Detective Scott gave evidence of being at the Ellenbrook Police Station at about 5.30 pm on 29 December 2021 and arresting the accused.
The accused's sister provided a statement. This was not read into evidence but was tendered as part of Exhibit 7.[105] The accused's sister gave evidence about their relationship as children and siblings and their parents' disciplinary style. The accused's sister described how, as she and her brother got older, their relationship improved. She last heard from him when she received a message on 30 November 2021, which was in terms:[106]
[105] Exhibit 7, Book 1 pages 317 - 337.
[106] Exhibit 7, Book 1, page 336, pars 191 - 195.He said 'Hey if anyone asks you knew me or I am your brother just deny it please. Just in case you're not sure what's going on yet'.
I said 'Why would that happen'.
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He said 'Just precautionary I think its ok though'.
I said 'Did you upset some people online'
He said 'No thing like that I'll explain the next time I see you'.
The statement of DMW was also read into evidence. DMW was the human resources payroll officer at the entity where the accused worked. She gave evidence of his working hours and that he worked on 29 December 2021 between 6.03 am and 11.04 am.
The statement of DMS was read into evidence. DMS was a friend of the accused who gave evidence of some earlier unsavoury comments made to her by the accused, not relevant to these proceedings but materially she had not heard from him directly until October 2021 after hearing from him on and off between 2013 - 2015.[107] The accused had contacted her via Facebook Messenger to check on her. With regard to memories he had about really intense stuff, including an abusive relationship and financial abuse he claimed she experienced but which had never happened, it appeared to her that the accused was referring to memories that had never actually happened.[108] They met for coffee on 26 October 2021. He appeared to be fine.[109]
[107] ts 187.[108] ts 187.
[109] ts 188.
The last contact he had with DMS was on 16 November 2021 when he asked about pneumothorax emergency air release procedure. DMS was employed as a midwife. She told the accused who asked if she ever had to do something like that but it was not in her line of work. He asked her if she dealt with stab wounds to the chest and she told him that it was not in her line of work.[110]
[110] ts 188. 111 ts 189.
The conduct DMS described of the abusive memories that were untrue and the questions directed to her, unrelated to her line of work, and disturbing in that they turned on traumatic medical procedures sit perhaps consistently with the accused becoming unwell in the second-half of 2021.
The State called the accused's former partner. They were in a relationship together for six years. The accused's former partner gave evidence as to the circumstances in which they met: that she moved in with him about two years into their relationship; they lived at his family's home; they lived there together for two years and then moved
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in with her nana after her grandfather died in about January 2018; her nana asked them to move out because she did not get along with the accused; and if the accused got mad or angry he would yell and scream but there was never any physical violence.111 She recalled that her nana did not like her relationship with the accused.[112] After moving from her nana's place they moved back into his family home. In her view, the accused appeared to have a lot of support from his parents and he was calmer and had a lot less outbursts when he was living at his parents' home.[113]
[112] ts 190.
[113] ts 190.
The relationship was positive in the beginning with lots of shared activities however towards the end of the relationship he played Dungeon & Dragons with a group of friends. She did not get into that.[114]
[114] ts 190.
The things they did together stopped and the accused would say he did not want to go out because he did not want to be around people. He would say that he did not like human interactions. In her view he had a hard time processing emotions and feelings.[115]
[115] ts 190.
He told her he was a high-functioning autistic about a year into their relationship. He told her he had struggled with it and it had not been fun.[116]
[116] ts 191.
He received some medication for depression which he did not
persist with.
She used to drive the accused to a counsellor in Scarborough who helped him with his autism and depression in or about 2020 and he went for between 3 - 6 months.
He stopped going because he considered the cost was too much. He enjoyed playing computer games. She would leave him for hours or days when he played the games.
During the relationship the accused smoked cannabis and drank.[117] As the relationship went on he started to smoke cannabis more often. He was against chemical drugs. A bag of cannabis would last him 2 - 3 weeks. At the end of the relationship she cannot remember many times when he was not off his face.[118]
[117] ts 192.
[118] ts 192. 119 ts 193.
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While he was studying teaching at Edith Cowan University he would work at Subway on the weekends. He attended both Mount Lawley and Joondalup campuses. He studied for his degree for four or five years. He was about six months from completing his practicals but he quit. He had wanted to be a high school teacher.119
She recalled that he had a car accident and this had a big impact on doing his practicals. He had a big issue with people doing stupid things and he was not the type of person to change his mind.[120]
[120] ts 193.
When he finished studying he did not know what to do and started a chef apprenticeship in early 2021. The owner was a friend of her father's and by reason of that friendship, he acquired that job.[121] In her view the accused and his father had an okay relationship. The accused loved to cook and was a very good cook. He enjoyed finding new recipes and trying to make them. The relationship ended in June or July 2021 after she had been working fly-in/fly-out.[122]
[121] ts 193.
[122] ts 193.
She moved out. He attempted to contact her on a number of occasions. She ignored his efforts to contact her.[123]
[123] ts 194.
She had no contact with him between Christmas and New Year's
Eve 2021.
The State also read into evidence a statement from JDS. JDS had known the accused for a period of 13 years since they were together in Year 7. JDS noted that the accused did not do well with emotions and did not know how to handle his or other people's emotions. The accused was his best man at his wedding in 2017.
He understood that the accused smoked cannabis for a while and knew that he was autistic and suffered from depression. He did not know anything of the accused's movements between 25 and 30 December 2021.[124]
[124] ts 195. 125 ts 196.
The State also called LMH who was a software developer and knew the accused in primary school and throughout high school he loved playing video games and played it with others online with the accused. He only spoke with the accused when they were playing
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games online. He saw him at a gathering at his house some time in November 2021. He had never spoken to him about paedophilia. He did not know much about his mental health. The last occasion on which he spoke to him online was on 23 December 2021 playing Dungeons & Dragons. They did not speak of anything special.125
The State also read into evidence a statement of RAC. RAC had known the accused for the previous nine years, that was at the time of the statement dated 6 January 2022. They had gone to school together since Year 5. They attended some classes through schooling until Year 12. He saw the accused on the last occasion at a party at LMH's place and the accused appeared normal. He spoke of joining the navy as a chef and was upset because he had recently broken up with his girlfriend. He knew that the accused had autism. He seemed functional though and did not ever show signs of having mental health issues for it.[126]
[126] ts 197.
The State also read into evidence the statement of SLM. SLM was a former owner and in 2021 was a co-worker at the entity where the accused worked.
She gave evidence that the accused started work on 18 January 2021. He did okay and commenced to work fulltime while doing an apprenticeship. SLM saw him almost every day Monday - Friday throughout 2021. She noted that he was quite pleasant. She did not have an issue with him. He would sometimes chat when he was leaving. She learnt that he broke up with his girlfriend some time before he ended up leaving in Christmas 2021. He was upset about it.[127]
[127] ts 198.
SLM could not remember him crying or anything like that. All in all in the lead up to Christmas he was his usual self. She could not say there was anything seriously different about him. She does remember his last day at work. She recalled he was a bit quieter than normal. He was a little withdrawn. He was not his normal self but was still okay. He talked and did his work but was just a bit quiet.[128]
[128] ts 199. 129 ts 199.
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SLM received a text message at 3.51 pm on 29 December 2021 which told her that he was not coming to work the next day and that he was sorry.129
The relevant time for the accused to demonstrate a total deprivation of a capacity under s 27 of the Code was at the time of the offending.
This is not to say that his capacity prior to the offending or after the offending was not relevant. Each of Drs Brett and Bala, along with Dr Tate and Dr Andrew Robinson, emphasised and explained the importance of the longitudinal history.
The accused had been in custody since 29 December 2021.
Dr Brett interviewed the accused on 1 February 2022 and then later on 8 February 2022 as recorded in Dr Brett's report of 9 February 2022.[130]
[130] Exhibit 11, Book 3, page 2.
Chronology after offending
The chronology of events was as follows:
•
On 28 December 2021 the accused went to work and worked a day.
•
On 29 December 2021 Detective Hugo spoke to the accused's father who appeared upset and was told that his son had assaulted him.
•
On 29 December 2021 at 5.30 pm the accused presents to Ellenbrook Police Station.
•
On 11 January 2022 the accused assaulted while in custody by three or four other prisoners.
•
On 17 January 2022 the accused reported as stressed following assault and expressed fears for his safety.
•
On 24 January 2022 the accused saw Peter Wynn Owen, psychiatrist who noted no thought disorder, for sexual disturbance or delusion.
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• On 4 February 2022 a second interview with police took place. • On 8 February 2022 the accused spoke to Dr Brett. • On 9 February 2022 the accused was referred to Frankland Centre by Dr Brett. • On 8 March 2022 the accused was discharged from Frankland Centre. • On 16 March 2022 the accused attempted self-harm by swallowing AAA batteries and jumping from a 5 m grill. • On 24 March 2022 the accused was assessed by Dr Andrew Roney at Fiona Stanley Hospital as having schizophrenia. • On 30 March 2022 and again on 4 May 2022 the accused was seen by Dr Hall, who did not conclude a psychotic disorder. • On 1 July 2022 the accused was examined for a fitness to stand trial report by Dr Dharjinda Rooprai. Dr Rooprai considered the accused to be fit. • On 17 June 2024 the accused was seen by Dr Findlay and diagnosed with schizophrenia.
Dr Brett undertook clinical interviews with the accused again on 14 March 2022 and 17 October 2022.
The accused was transferred from Hakea Prison to the Frankland Centre on 9 February 2022 and was discharged from the Frankland Centre on 3 March 2022.
The circumstances in which the accused was transferred to the Frankland Centre were following an assessment of him in Hakea Prison by Dr Brett who considered that he was psychotic and believed that he needed a comprehensive assessment in hospital.[131]
[131] Exhibit 11, Book 3, page 10, pars 4 and 5.The State called Drs Tate and Robinson who were part of the multi-disciplinary treatment team that assessed the accused during his stay at the Frankland Centre.
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The State's submission was that the acts or offences committed against the victim were clearly redolent more of a sexual interest than a mission[700] and that Dr Brett's evidence was the accused agreed that it was part of the mission to be caught and go to prison.[701]
[700] ts 722.[701] ts 462.
The State's submission was that the disposal of the tape following the offending and the lie to police was inconsistent with that part of the mission that was to be caught.[702]
[702] ts 722.
Dr Brett's evidence was that the accused was not demonstrating paedophilic behaviours and the history he gave was that he was being controlled by these forces that he done the act with the same girl at the same time and times before which he believed was a delusion.[703] Further in cross-examination Dr Brett confirmed that he highlighted in his report of 15 February 2024 that the only goal was to commit the offence and go to prison and count off 1,000 years in prison.[704]
[703] ts 403.
[704] ts 462.
In cross-examination Dr Brett was referred to an interview between the accused, Dr Tate, Dr Robinson and Dr Watson.[705] In the notes of the interview between the accused and Drs Tate, Robinson and Watson of 16 February 2022,[706] the clinicians notes recorded the accused:
[705] Exhibit 8, Book 2, page 353.
[706] Exhibit 8, Book 2, page 354. 707 Exhibit 8, Book 2, page 376.
• denied knowing there was a child in the house; • was looking for a child, someone young; • found out later she was 7; • if she had been a teenager same events would have occurred; • it had to be female; • body frame was important, petite small frame; and • felt the need to wash her after incident.
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Dr Brett was referred to the progress notes of 23 February 2022707 in which the accused was recorded as saying to Drs Robinson and Watson that he:
• felt like he woke up feeling that he needed to commit a crime like a sex crime; • he was afraid he needed to do this before the year ended; • they wanted a sex crime or a murder; and • they coached him on how to commit a sex crime in the past not at this time.
Dr Brett was referred to Dr Roney's notes.[708] It included that the
[708] Exhibit 8, Book 2, page 473.
accused:[709]
[709] Exhibit 8, Book 2, page 474.
• believed he is passive to other entities' commands without being under their direct control; • feels compelled to act on their commands; and • described knowing he had to assault a child between Christmas and New Year for months beforehand.
Dr Brett was referred to the accused's consultation with Dr Hall[710]
[710] Exhibit 8, Book 2, page 167.
in which the accused was recorded as saying:
• each simulation is a test whereby at some point he has to commit a child sexual offence and go to prison; and • the measure of success in the test is to not tell anyone in the course of that mission he is in a simulation.
Dr Brett was also referred to Dr Hall's notes[711] where the accused
[711] Exhibit 8, Book 2, page 139.was recorded as saying:
•
the specific nature of the alleged offence was a requirement in the simulation;
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• it had to be egregious, carry a severe penalty and get media attention; • could not further explain why another non-sexual act would not fit such criteria.
As against these descriptions of the delusional system, Dr Brett agreed that these iterations had come up within a couple of weeks of his discussion with him on 8 February 2022.[712]
[712] ts 476.Dr Brett agreed that the accused had never met or seen the victim before,[713] the choice of house was entirely driven by chance and that not knowing the child and the house or its choice was just bad luck.[714]
[713] ts 477.
[714] ts 477.
Notwithstanding the change in the delusional belief system as demonstrated by the additions of the timeframe in which the offence was to occur, the victim being the same victim on each of the 100 or so previous times that it had been committed, the express object of the mission to go to prison, disposal of the tape, the lie to the police, the addition of the need for media attention, the absence of any psychotic symptom in the first police interview, Dr Brett did not agree that it was likely that the overwhelming delusional system described by Dr Brett in fact reflected a post-facto reformulation of what the accused did into a possibly existing psychotic symptomology.[715]
[715] ts 477.
Further in the course of the first police interview the accused said, in the context of being surprised that the victim went to sleep after washing her:[716]
[716] Exhibit 7, Book 1, page 88.
I wasn’t going any further with any of that stuff. I wasn't thinking
about stealing anything after that. I was just like, I'm getting the fuck
out of here.
And when asked if he removed any of his clothing:[717]
[717] Exhibit 7, Book 1, pages 96 - 97.it was like a - sort of in and out kind of thing, yeah. It was just, ah - as we've already discussed, like a weird sexual sort of thing that popped
into my mind …
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And when recalling speaking with police on 28 December said:[718]
[718] Exhibit 7, Book 1, page 110.you know, at that point, I hadn't made up my mind to, um, go and talk
to you guys about it …
And in the second police interview told the police that the catalyst to hand himself in was that he could not live with himself.[719]
[719] Exhibit 5, page 189.
None of these statements are consistent with the accused being subject to an overwhelming delusional system in which he had no free will and in which the express object of the mission was to go to prison. Further the contemplation that he might kill himself, also expressed in the first police interview, before deciding that he would go face justice, sits contrary to the overwhelming delusional system the accused now claims to be acting under.
I do not accept Dr Brett's evidence on this point. On any view the selection of the house was random. The offending against the child was opportunistic and informed by a paedophilic disorder. There is no persuasive evidence of an overwhelming delusional system and the first inception of that delusional system appears to arise after February 2022 and following the accused's remand in custody. There is no evidence that it was operative or even in existence at the time of the offending.
Malingering
Dr Robinson, as was Dr Tate, was referred to the work of Dr Fowler in the discharge summary as to Dr Fowler's assessment of feigning or malingering. Dr Robinson noted that the assessment did not exclude it. Dr Tate's evidence was to the effect that she was not an expert insofar as that assessment went.[720]
[720] ts 327.On the available evidence it is not possible to make a conclusion that Ms Fowler excluded malingering.
Self-harm and psychosis
It is clear that he did engage in self-harm attempts, however, the reasons for the self-harm attempts do not appear to be psychotic, do not support the defence case insofar as the psychosis being operative upon him at the time of the offending.
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Dr Robinson and Dr Tate gave evidence as to the accused's difficulty with emotional regulation and history of self-harm. Dr Bala considered there were other motivations for the self-harm behaviour.
Non-mainstream beliefs and false fixed firmly held beliefs
I accept Dr Tate's evidence that non-mainstream beliefs such as speaking of aliens and living in a simulation could, on one view, be viewed as a delusion or as a symptom of psychosis. However, in the context of someone with ASD I accept Dr Tate, an experienced psychiatrist's evidence that it was common and that it was a diagnostic feature of that condition for people to have very intense preoccupations about interests in particular things. In my view this evidence sat consistently with Dr Bala's evidence.
Furthermore, Dr Robinson gave evidence that it was not pathological to have non-mainstream or unusual beliefs and that non-mainstream beliefs were not necessarily indicative of a primary psychiatric disorder. I accept Dr Robinson's evidence.
The accused did have non-mainstream and bizarre beliefs and they were demonstrated insofar as his statements to his mother that she was a grey alien, that the family had been subject to a DCP intervention, that the army was full of lizards.
The belief in aliens and lizards while bizarre, were not, for the reasons expressed by Drs Tate, Robinson and Bala, demonstrative of a psychotic illness on the accused's part.
Operational reasons
I accept the State's submission that the inpatient clinical assessment was a robust one.
The accused spent 23 days at the Frankland Centre.
Insofar as the suggestion that his treatment was not concluded or his state was not properly examined or that he was discharged prematurely for operational reasons, I do not accept this.
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Dr Tate in her email dated 23 March 2022, noted:[721]
[721] Exhibit 11, Book 3, page 84.… To clarify, he was not returned to prison for operational reasons.
His assessment was complete and his treating team concluded that he was not psychotic and antipsychotics were not indicated. He saw three psychiatrists and underwent a comprehensive social and psychological assessment to arrive at this conclusion. A great deal of thought went into his care and management. He would probably accept medication in prison if there was a psychiatrist who took a different view and wanted
to trial him on treatment. …
I accept the detail in the email, confirmed by Dr Tate in her evidence that the accused's assessment was for all practicable purposes, completed. The treating team were confident that the accused did not have a psychotic illness.
Dr Robinson gave evidence that there was no acute indication for the accused to remain an inpatient at the Frankland Centre and I accept that evidence.
I accept Dr Tate and Dr Robinson's evidence that their assessment of the accused was comprehensive. This evidence was confirmed by Dr Bala insofar as his description of the discharge summary being the longest he had ever seen.
I accept the State's submission that there is no evidence that operational reasons meant that the accused was discharged prematurely.
I accept that Dr Brett is sincere in his view that the accused was discharged prematurely but do not accept that there is a basis for that.
Insofar as the expertise at the Frankland Centre, I do accept that Drs Tate and Robinson did have the requisite expertise in autism and psychosis to properly evaluate the accused.
Dr Tate gave evidence of her experience in dealing with patients who present with both autism and psychosis.
Dr Tate gave evidence it was not necessary to seek an outside referral to someone who has specialist knowledge in autism given that the diagnosis of autism was not in question.[722] Her evidence was that once the diagnosis was made the assessment and management of a person with autism was well within the scope of all psychiatrists.[723]
[722] ts 247.[723] ts 282. 724 ts 244.
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In my view, having regard to Dr Tate's evidence satisfied that notwithstanding the description of 'operational reasons' as the basis for the accused's discharge, there is no reason to find that he was not comprehensively assessed and that in all material aspects his assessment was essentially completed. There is no basis for a finding or conclusion that his transfer back to prison was as a result of any operational pressure or shortage of beds in the facility.
Dr Tate's evidence was that there was not any expectation that the items outstanding would substantially change the formulation.724 At that point Dr Tate and others at the Frankland Centre were of the view that there was no evidence of psychosis.[725]
[725] ts 245.
Dr Tate's view was that there was no need for a further referral and that those who worked in forensic services were familiar with people with autism and people with psychosis and had the requisite skills to make an assessment.[726]
[726] ts 247.
Dr Tate gave evidence that no one at the Frankland Centre wanted the accused to go back to prison without a considered assessment and that they did not want to miss a serious psychotic illness.[727] Dr Tate was not challenged and I accept her evidence.
[727] ts 260.
Dr Tate did not agree that in most circumstances there was a need to consult a specific expert in autism. Her view was that most psychiatrists have the capability to make that diagnosis. If the diagnosis had already been made it would be even less important. Once a diagnosis had been made in terms of clinical treatment assessment and management of an individual with autism, then getting a formulation and diagnosis correct would be within the scope of all psychiatrists.[728]
[728] ts 282.
The discharge summary was the longest discharge summary Dr Robinson had ever written and it was significantly lengthy because they were communicating that there was another clinician, namely Dr Brett who had a different opinion to them.[729]
[729] ts 317.
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There is no evidence to suggestion that the assessment was not thorough. There is no evidence to suggest that the assessment required the accused to remain at the Frankland Centre, however his discharge was described.
Dr Robinson gave evidence that there was no acute indication for the accused to remain as an inpatient at the Frankland Centre. What was outstanding and for completeness was an outstanding EMG, and MRI and a personality assessment to be written up by the psychologist, Ms Fowler. By this evidence I understand Dr Robinson to be saying that there was no treatment reason required for the accused to remain at the Frankland Centre and that the psychiatric assessment had been completed. He was not suffering from a psychosis and as such, there was no acute reason for him to stay at the Frankland Centre because the treatment team there, which included the psychiatrists Robinson and Tate, did not consider that he was psychotic.
I find as a fact that the conference was complex. I accept the evidence of Drs Tate and Robinson that the assessment was thorough and careful and the length of the discharge summary reflects that. The care taken was heightened by reason of Dr Brett's eminence and the fact that the Frankland Centre team disagreed that the accused was suffering from psychosis. I accept Dr Bala's evidence that the discharge summary was comprehensive and reflected the care and consideration that was applied by the clinicians at the Frankland Centre. The fact is that Dr Bala's opinion as to whether the accused was suffering from a psychotic illness does not impact the reliability of the Frankland Centre's conclusions. Rather it represented a demonstration of Dr Bala's working to harmonise his views with Dr Brett's and to respectfully give full weight to those views which were sincerely held.
Furthermore, Dr Brett's assertion that the accused lacked theory of mind and that this lack was not properly appreciated by the Frankland Centre resulting in a flawed diagnosis is not supported by the evidence.
The better view is Dr Brett was not provided with all of the relevant evidence which as a matter of fact demonstrated the accused had some theory of mind.
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Was Dr Brett in an advantaged position as opposed to Dr Bala to make an assessment?
An issue in this trial is whether or not Dr Brett was in an advantaged position to make the assessment that the accused was completely deprived and whether there is not a basis for accepting Dr Brett's view in favour of Dr Bala's view by reason of his better access to the accused.
On balance my view is that while I recognise Dr Brett had direct access with the accused, and was able to test his thinking, this represented an advantage that Dr Bala did not have. Dr Bala made it plain on a number of occasions that he would have liked to test the accused on specific points of his account. In all, however, I accept Dr Bala's evidence that he was able to make an assessment on the basis of the material that he had. He had the benefit of Dr Brett's reports, the comprehensive discharge summary from the Frankland Centre, the two police video records of interview, the first of which was recorded less than 48 hours after the events, and he had the opportunity of hearing all the evidence by way of sitting in court throughout the proceedings. Indeed there were aspects upon which it appeared that Dr Bala was better briefed than Dr Brett and that was demonstrated insofar as his knowledge of the statements to police on 28 December 2021 went as well as the statements ascribed to the accused by the victim in the child witness interview and as well as the statements reflecting the accused's sexual interest in the offending as recorded in the Frankland Centre notes and Mr Roney's note.
I do not consider that Dr Brett had an advantaged position to Dr Bala with regard to the capacity to express an opinion on the issues of the accused's capacities.
Collateral information
Drs Tate and Robinson were aware of the significance of collateral information. Each was taken to the material.[730] Each had regard to that in their formulation.
[730] Exhibit 8, Book 2, page 261.
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The first police interview
Dr Brett identified the core symptoms of ASD as including communication skills, social skills, understanding relationships and understanding the world around them. His evidence was that people on the spectrum see the world a see other people differently.[731]
[731] ts 378.This assessment may be relevant to how I assess the accused's performance in the presentation in the interview with police. However in this case I consider the accused's presentation and performance in the first police interview to be compelling in that it demonstrated his capacity to communicate and navigate difficult issues with the police.
The evidence was all one way insofar as clear that people on the spectrum or who have ASD experience variations in its effect upon them. That effect might be profound or less so.[732]
[732] ts 379.
An issue in this trial is the degree to which it operated on the accused. Dr Bala's view was that he was a high functioning example. Dr Tate gave similar evidence. I am satisfied that the accused was not restrained by either his ASD or psychosis insofar as communicating with police goes.
I accept Dr Bala's evidence that psychosis is mild, persistent, severe or isolated on a continuum from mild to severe. This sits consistently with Dr Brett's evidence. Furthermore, I accept that hearing voices on its own is not demonstrative of a person who is necessarily psychotic. I accept Dr Bala's evidence that psychosis is about a persistence of symptoms and behaviour when they emerge and the impact they have on a person's conduct.[733]
[733] ts 565.
Furthermore I accept that in order to be deprived of capacity the willpower to resist must be completely overcome by the psychosis,[734] and that there must be overwhelming evidence that their willpower is overcome when it comes to the capacity to control their actions. That is, they have no independent agency in terms of their volition or willpower at the time of the act.[735]
[734] ts 572.
[735] ts 572.
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Each count is a separate count and is required to be determined on the basis of the evidence relevant to it. In relation to count 1, I do not accept that the accused was deprived of either capacity insofar as the decision to explore petty theft goes. The implausibility of taking a tape to commit acts of petty theft taints the later claim that he was acting by reason of his psychosis and deprived of the capacity at the time he committed the offence in count 1.
At the time of the first police interview the accused demonstrated a reasonable capacity to engage with police and I accept Dr Bala's view that he seemed almost eager to disclose what he did and how bad he felt, and further, I accept Dr Bala's evidence that there was a lot of social capacity demonstrated.[736] Furthermore, there was a clear inconsistency between the claimed delusion and the accused's conduct in not handing himself in. It was recorded on the Frankland Centre Discharge Summary that he told Dr Tate if he had not been caught he would have handed himself in. I accept Dr Bala's view that this was an awareness on his part that what he had done was wrong, but furthermore, it was inconsistent with the delusional framework which was to get caught.
[736] ts 575 - ts 576.
Sexual interest motivation
Insofar as there is a divergence between Dr Bala and Dr Brett on this point, I accept Dr Bala's evidence. The only inference I can draw from the manner in which the accused dealt with the victim's vagina and in his positioning of the victim against him was by reason of his sexual interest in her.
Dr Brett could not recall considering that the physicality was consistent with a sexual interest in any of the opinions he provided.[737]
[737] ts 444. 738 ts 381.
The fact that it was not considered is perhaps not surprising given that it does not appear that Dr Brett was provided with detail of what it was that the complainant said. It did not appear he was aware of the victim's hand motions when describing the conduct. This informs a subsidiary reason for preferring Dr Bala's evidence on this point.
As the evidence developed in this case notwithstanding Dr Brett's view that the accused consistently described having no pleasure in the act that he was performing, the detail of the conversation with Dr Roney did record an aspect of pleasure and the account to the
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Frankland Centre as to the time in the wardrobe also record an aspect of sexual excitement. These factors in my view count against the opinion of Dr Brett that the accused's account to police about his actions and thoughts in the wardrobe were not the act of a normal paedophile. The contrary and preferable view is that there was a degree of sexual excitement at the moments before the offending and it has been the feature of pleasure in its recall.
I prefer the evidence of Dr Bala whose formulation was that the accused was more likely in the wardrobe in an elevated state of arousal at the prospect of acting on a sexual interest in a child for the first time and was calming himself down.
Comorbidity ASD and psychosis
Dr Brett gave evidence that psychosis presents differently in people with autism and that more time or a lot more time and expertise was required in diagnosing psychosis in people with autism.738
This evidence was relevant as to the time, expertise and diagnosis that the Frankland Centre made or gave with respect to the accused. It is not an issue that the accused has autism. I find as a matter of fact that the clinicians at the Frankland Centre did spend time, did have the expertise and were able to diagnose the accused appropriately.
I make these findings notwithstanding I accept Dr Brett's evidence that everyone with autism presents differently and that it can be very difficult to tease out psychosis in people with autism.[739] Notwithstanding accepting this evidence, it is clear that the clinicians at the Frankland Centre spent a considerable time in assessing the accused who was able to communicate with them.
[739] ts 381.
I make this finding notwithstanding Dr Brett's evidence, which I accept that social communication is the core deficit in autism and that his impacts on how a client is interviewed. I accept Dr Brett's evidence that if a client struggles with social communication that they will struggle with clinical interview.[740] I accept Dr Brett's evidence that one of the key features as to why it is so difficult is by reason of the core feature of autism being the difficulty in talking to other people. Notwithstanding this evidence I am of the view that the Frankland
[740] ts 381. 741 ts 267. 742 ts 683. 743 Understanding that the victim in count 1 is a different person to the victim in counts 2, 3, 4 and 5.
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Centre clinicians were properly able to appreciate the difficulties that arose by reason of the accused's ASD and to appropriately diagnose him.
The uncontradicted evidence of the experts is that psychosis is an internal state. The impact on the assessment of psychosis in the accused's case given, that he was autistic and may present with deficits in communication, is that in this case Dr Bala was able to make a diagnosis on the materials, given the accused could not reasonably be described as a person with poor verbal functioning or poor communication skills.
With regard to the issue of cognitive rigidity, I understood Dr Tate's evidence to be to the effect that if a person's thoughts were organised in linear and coherent thought patterns, then a pattern of rigidity was quite easy to differentiate from psychotic symptoms. Further, if you had someone with a mild ASD who had difficulty differentiating fantasy from reality but was otherwise able to work and function quite normally that it would not be particularly difficult to diagnose a psychotic illness in that cohort.741 I have no reason not to accept this evidence.
The intervening period
Following the offence, the accused had an opportunity to realise the mission, that is to be caught and go to prison.
However contrary to Dr Brett's reports of 9 February 2022 and 15 February 2022 in which it was recorded the only goal was to commit the offence and go to prison, the accused acted inconsistently by way of disposing of the tape. The only view is that the tape connected him to the offending by way of the victim's biological matter being on it. Further, the police evidence of Detectives Hart and Bermingham demonstrated that the accused approached police on the street and told a deliberate lie, that is that he had been home all night and had not seen or heard anything.
The only inference open is that he told the deliberate lie to mislead police and to divert their attention away from him.
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The fact that the accused did later hand himself in and on one view may appear consistent with his mission, that does not sit consistently with his demonstrated conduct in lying to the police and disposing of the tape.
When Dr Brett was asked about the mission and the obligation to hand himself in, Dr Brett speculated at page 486 that they, being the agents in the delusional system, said 'you had to try and conceal the offence'.
There was no evidence for this and it sat inconsistently with the accused's proven conduct by way of lying to the police.
Conclusion
The State prosecutor submitted that it was impossible to actually understand in the evidence what the overwhelming delusional belief system is that the accused in fact held at the material time and whether it explains the particular conduct that in fact occurred against this child at this particular time.742
I accept this submission.
Dr Bala and Dr Brett concluded that the accused:
• had a diagnosis of autistic spectrum disorder; and • a paedophilic disorder or disorder of sexual preference.
Dr Brett was of the view that the accused had a psychotic disorder and Dr Bala was of the view that the accused suffered an unspecified psychotic disorder.
Each considered the paedophilic disorder to be relevant in the offending. Dr Brett described it as significant but not sufficient and Dr Bala considered the combination of milder psychosis and paedophilic interests that led to the offending and if not for the paedophilic interest the accused might not have engaged in the offending.
I am required to consider the facts on which Dr Brett's and Dr Bala's opinions are based and to consider whether I can accept the opinion recalling that it is for the accused in each case to demonstrate on the balance of probability that it is more likely than not, on the basis
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of all of the evidence that I do accept, including the expert opinion evidence, that he lacked either capacity in the particular count I am considering.
There are five counts alleged.
Each count must be considered separately.
The offending act which constitutes an element of each count has
been admitted.
The acts in each count are:
• Count 1 - the act of entering the place.743 • Count 2 - the act of unlawfully impeding the normal breathing of the victim by manually blocking her nose and mouth. • Count 3 - the act of unlawfully impeding the normal blood circulation of the victim by manually applying pressure on or to her neck. • Count 4 - the act of sexually penetrating the victim by penetrating her vagina with his finger. • Count 5 - the act of indecently dealing with the victim by touching her vaginal area.
The central issue described by defence counsel in his closing submissions[744] was whether the accused was deprived of the relevant capacities at the material moments. The material moments being the physical act in each count. The defence position being that the capacity must be judged against the background of what defence contended was fluctuation.[745] The defence position being that 'it's the narrow and focussed time of the material acts which is the time that we submit is relevant to this case'.[746]
[744] ts 735.
[745] ts 750.
[746] ts 750.The relevant capacities being:
• the capacity to control his actions; and • the capacity to know that he ought not do the acts.
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I accept that each count must be considered separately. It is not a job lot. I accept that a finding on one count does not require or determine a finding on another count. However I do not accept that the evidence supported a proposition that the accused might, during the course of the offending, have been completely deprived at times of either capacity but at other times during the offending not so deprived.
The defence case was the extremity of the behaviour must raise the question 'what other than an overwhelming and delusional framework could account for a person with no prior record choosing to commit such extreme acts, which in the cold light of day, in another frame of mind he confesses an acknowledgement of wrongdoing when interviewed by the police?'.[747]
[747] ts 740, and similarly at ts 741.In counsel's submission the extreme and unprecedented behaviour sat with the longitudinal history which on the defence case demonstrated the accused becoming increasingly unwell in the 6-month period preceding the offending and made it more likely than not that the acts were explained by the overwhelming control delusion framework formulated by Dr Brett.
That framework including a delusional belief that he was an alien and subject to alien control, in a simulation, in which he had to commit an offence against the same girl he had offended against previously in other simulations and that the only goal was to prison and count off 1,000 years in prison.
The delusion and the actual conduct performed by the accused was
inconsistent in:
• he had never seen the child; • he went to a house not knowing that the child lived there; • he went to steal from the house; •
he offended against the child and demonstrated a want to offend against the child, that is he was motivated by a sexual interest in the child. He was aroused and acted on that interest;
•
he recognised that his conduct was abhorrent and soothed the child. He washed the child; and
•
he took steps to distance himself by the offending by disposing of the tape and lying to police the following day.
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Furthermore over time the delusion changed to incorporate
detail that:
• the offence had to be committed between Christmas and New Year; • he had to try to conceal the offence; and • the offence had to be egregious and get media attention.
The addition of the Christmas/New Year timeframe anchors the offending to the time that it occurred. It is surprising that the detail was not disclosed until February, if according to Drs Tate, Robinson and Bala, the accused actually believed in the delusional system at the time of the first police interview, it is likely that some detail of it would have leaked out. It was also, on the evidence of Drs Tate, Robinson and Bala, unlikely that the accused would have been severely psychotic and two days after able to manage or suppress his delusions.
In the six months preceding the offending the accused suffered a number of stressful events. These included the end of a long-term relationship and a change in his employment which saw more responsibility placed on him.
At all times the accused had ASD and a paedophilic disorder. He had never committed a criminal offence.
He had some unusual beliefs concerning aliens and lizards and their intervention in human affairs. These beliefs were not psychotic and perhaps helpful to the accused who was struggling to make sense of the world and his place in it.
I find as a matter of law that psychosis and autism spectrum disorders are mental illnesses. As a matter of fact I am satisfied that the accused suffered unspecified psychotic disorder at the time of the offending and it is more likely than not that the accused was suffering from a psychotic disorder which was developing in the period leading up to the date of the offending and accept the evidence of Drs Bala and Brett in this regard.
I am satisfied that the psychotic disorder worked to impair his capacity, in each count and in each of the ways alleged, that is to control his actions and to appreciate the wrongfulness of them.
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I cannot make a finding on the available evidence as to what the accused belief system was at the time of the offending. I am not satisfied that he was suffering from an illness - whatever the belief system was that was such as to completely deprive him of either capacity.
I am not satisfied on the balance of probability that the psychotic disorder was such as to completely deprive the accused of the capacity:
• to control his actions; or of • the capacity to know that he ought not do the acts; at the time that he committed the offences in counts 1, 2, 3, 4 or 5 in the indictment and accordingly I find each count proven and I find the accused guilty on each count.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JH
Associate to Judge MacLean
2 OCTOBER 2024
approved of. When R v Falconer was decided s 27 of the Code was differently worded. The subsequent
amendments to the Code are consistent with King CJ's statement of principles, although the definition of
'mental impairment' is broader than that of 'disease of the mind' which was considered by King CJ.
(Mazza JA).
authorities referred to therein.
Steytler P at [6], [13].
cohort', British Journal of Psychiatry (2017) 210, 269 - 275; Exhibit 11, Book 3, page 134.
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