The State of Western Australia v Chaytor
[2019] WASC 228
•2 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CHAYTOR [2019] WASC 228
CORAM: JENKINS J
HEARD: 26 JUNE 2019
DELIVERED : 2 JULY 2019
FILE NO/S: INS 3 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
NIGEL PAUL CHAYTOR
Accused
Catchwords:
Criminal law - Trial by judge alone - Murder - Attempted murder - Insanity - Whether the accused was in a state of mental impairment - Whether the accused understood what he was doing - Whether accused lacked capacity to control his act/actions - Whether the accused lacked the capacity to know that he ought not do the relevant acts
Legislation:
Criminal Code (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)
Mental Health Act 2014 (WA)
Result:
Not guilty on account of unsoundness of mind
Category: B
Representation:
Counsel:
| Applicant | : | Mr N R Cogin |
| Accused | : | Ms K A Shepherd |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Ms K A Shepherd |
Case(s) referred to in decision(s):
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Porter [1933] HCA 1; (1933) 55 CLR 182
Radford (1985) 20 A Crim R 388
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Marotta [2018] WASC 329
Ward v The Queen [2000] WASCA 413; (2000) 118 A Crim R 78
JENKINS J:
The accused is charged on indictment that on 27 April 2018 at Kelmscott he:
(1)murdered Keith David Chaytor contrary to the Criminal Code (WA) (the Code) s 279; and
(2)attempted to unlawfully kill Estelle Marie Chaytor contrary to the Code s 283(1).[1]
The victims of the alleged offences are the parents of the accused.
[1] I will refer to this charge as the attempted murder charge.
On 6 May 2019 the accused entered pleas of not guilty on account of unsoundness of mind.[2] The charges were then listed for trial.
[2] Criminal Procedure Act 2004 (WA) (CPA) s 126(1)(d), s 142.
On 14 May 2019 Corboy J ordered by consent that the accused be tried by judge alone,[3] and his trial took place before me on 26 June 2019.
[3] CPA s 118.
The parties submitted that the proper verdicts are not guilty on account of unsoundness of mind.[4] However I must determine the verdicts based on the evidence before the court.
[4] ts 12.
The judgment in a trial by judge alone must include the principles of law applied and the findings of fact relied on by the judge.[5]
[5] CPA s 120(2).
These are the principles of law which I have applied and the facts on which I rely for finding that the accused is not guilty of murder and not guilty of attempted murder on account of unsoundness of mind[6] because at the time he killed Mr Chaytor and attempted to kill Mrs Chaytor he was in such a state of mental impairment as to deprive him of the capacity to control his actions and to know that he ought not do the actions which killed Mr Chaytor and injured Mrs Chaytor.
[6] CPA s 146.
The evidence
The State tendered by consent a statement of agreed facts[7] and the State's prosecution brief.[8] The accused formally admitted the facts contained in the statement of agreed facts.[9] I accept the truth of those facts but not, of course, the truth of the contents of the accused's delusions.
[7] Exhibit 1.
[8] Exhibit 2.
[9] ts 12.
The accused elected not to give evidence. He called Dr Victoria Pascu, a consultant forensic psychiatrist, to give oral evidence. Her written report dated 13 December 2018 was tendered as part of the prosecution brief.[10]
[10] Exhibit 2 page 71.
In reply, the State called evidence from Dr Adam Brett, consultant psychiatrist, and tendered his report dated 2 April 2019.[11]
[11] Exhibit 2 page 88.
Admissibility of evidence
There is an issue as to the admissibility and weight to be given to various statements made by the accused out of court about his current and past actions, symptoms and feelings.
The accounts by the lay, police and medical witnesses of their conversations with and observations of the accused are admissible to prove that the accused said or did various things. They are admissible to prove the truth of what he said if they form part of the res gestae or contain admissions against interest. They are also admissible to prove the truth of his statements as an exception to the hearsay rule if they are statements about his bodily (including mental) feelings and symptoms which were made contemporaneously to the time when his state of health was in question. The statements must be made at the time he was experiencing the feelings or symptoms or soon afterwards.[12]
[12] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, 647.
Much of what the accused said is not relied on to prove the truth of what he said because his utterances were the result of a deluded and irrational mind. However the comments which the accused made to police officers and paramedics on 27 April 2018 are admissible on one or more of the above bases.
The accused's admissions of his involvement in the attack on his parents to the police in the interview conducted on 28 April 2018 are admissible to prove the truth of what he said.
The State also tendered the accused's medical records. They are admissible pursuant to the Evidence Act 1906 (WA) s 79C. The accused's statements to medical professionals, whether they be the treating doctors and nurses or the two psychiatric expert witnesses, as to his feelings and symptoms at the time he spoke are admissible to prove his feelings and symptoms at that time.
I must also consider the admissibility of the accused's history which he gave to Dr Pascu and Dr Brett months after the attack on his parents. The accused's statements to the doctors of past actions, feelings and symptoms cannot be used to prove the truth of the assertions in them unless they fall within an exception to the hearsay rule. The only applicable exception relates to the exception for admissions against interest. There are some comments made which are admissible on this basis.
Pursuant to Ramsay v Watson[13] an expert medical witness may give evidence of a history given to him by a patient and it is admissible as part of the foundation of the expert's opinion. However, the history is not admissible to prove the 'past sensations, experiences and symptoms of the patient'. The patient must give the evidence if it is to be relied upon to prove the truth. The High Court said that if the patient does not confirm in evidence what he said to the medical expert out of court, 'the physician's opinion may have little or no value'. The accused did not give evidence.
[13] Ramsay v Watson (648 ‑ 649).
There is a substantial body of evidence of the accused's sensations, experiences and symptoms at the time he killed Mr Chaytor and injured Mrs Chaytor shortly afterwards. Where there is conflict between that body of evidence and the histories which he gave to Dr Pascu and Dr Brett, I rely on the contemporaneous evidence of those matters. As I explain later in these reasons, that position affects the weight I give to the psychiatrists' opinions on some issues.
Agreed facts
The parties agreed the following facts and I find:
1.Nigel Paul CHAYTOR (Nigel Chaytor) is the 42‑year‑old son of the two victims, Estelle Marie Chaytor (Estelle Chaytor) and Keith Paul CHAYTOR (deceased) (Keith Chaytor).
2.Estelle Chaytor and Keith Chaytor were both aged 72 years old at the time of the offences.
3.In the lead‑up to the offending the accused had resided at a residential lodge in Mount Lawley where he was employed as the manager from Sunday evening until Friday afternoon.
4.The accused usually spent time at his parents' home at 12 Ensign Dale Kelmscott from Friday evening to Sunday evening, sleeping there on Friday and Saturday nights.
5.The accused sometimes varied this routine and stayed with his brother Martin Chaytor.
6.In the lead up to the offending Estelle Chaytor had noticed that the accused's mental health was deteriorating.
7.Around the weekend of the 21st of April 2018 Estelle Chaytor found evidence from which she inferred that Nigel Chaytor was not taking his mental health medication as had been prescribed.[14]
[14] Statement of Estelle Marie Chaytor dated 4 May 2018, PB 7.
8.Estelle Chaytor noticed in the days prior to the offending that the accused was not communicating with his parents, when he did he was very vague and was speaking about his 'third eye' and things of that nature.[15]
[15] Statement of Estelle Marie Chaytor dated 4 May 2018, PB 7, par 14.
9.Keith CHAYTOR had become very concerned about Nigel Chaytor's mental health in the days leading up to 27 April 2018.
10.On 25 April 2018 the deceased had sought to refer the accused to the Mental Health Triage service at the City East Adult Stream.
11.Clinical notes of the Mental Health Triage team note that:
'Referral from Dad Keith ... Father reports ongoing concerns regarding Nigel's behaviour and welfare over the last few weeks. He claims he is noncompliant with medications since February 2018, not eating, he has a sixth sense, talks to the spirits, openly responding to unseen stimuli'.[16]
[16] City East Adult Mental Health Triage clinical notes created 26 April 2018; Tab 3 Agreed Bundle of Documents for Trial.
12.That mental health service advised Keith Chaytor they would send someone to speak with Nigel Chaytor at his workplace.
EVENTS OF 27 APRIL 2018
13.At approximately 1:00 am on Friday 27 April 2018, Nigel Chaytor drove from his residential lodge accommodation in Mount Lawley to the Kelmscott area, parking his vehicle in the car park of the Armadale‑Kelmscott Memorial Hospital.
14.Nigel Chaytor then walked approximately 3 kilometres to 12 Ensign Dale, Kelmscott, (the family home), arriving at approximately 2:00 am.
15.Nigel Chaytor let himself into the family home with his key.
16.Keith Chaytor and Estelle Chaytor got out of bed and spoke to Nigel.
17.Nigel Chaytor told Keith and Estelle that he was not going to work the following day (Friday).
18.Nigel Chaytor also said he had left his car was at the hospital.
19.Estelle set Nigel up in the spare room because they had visitors arriving and using the room Nigel usually used.
20.Nigel Chaytor said to Estelle: 'There's someone coming to see you on Saturday'.
21.Estelle did not understand Nigel's comment.
22.Estelle Chaytor returned to her bedroom shortly thereafter.
23.Estelle and Keith Chaytor heard Nigel 'up and about' throughout the morning.
24.Keith Chaytor commented to Estelle that Nigel appeared to be restless.
25.At 7:00 am Nigel Chaytor entered the master bedroom and turned on the light.
26.Keith CHAYTOR told Nigel Chaytor to turn the light off and leave the room.
27.Keith Chaytor went to the ensuite.
28.Nigel Chaytor walked into the ensuite and commenced attacking Keith CHAYTOR, stabbing him several times to the chest.
29.Estelle CHAYTOR got out of bed and neared the door of the ensuite and Nigel Chaytor came out.
30.Nigel Chaytor then stabbed Estelle Chaytor several times to the chest and neck.
31.Estelle CHAYTOR put her arms up in front of her face to protect herself.
32.Nigel Chaytor repeatedly swung the knife at Estelle Chaytor before leaving the room.
33.Keith Chaytor walked out of the ensuite covered in blood before collapsing near the bed on the floor with wounds visible to his chest.
34.Nigel Chaytor had collected his phone and wallet and took a set of keys for Estelle CHAYTOR'S car and commenced reversing the car out of the garage.
35.Nigel Chaytor changed his mind, left Estelle's Chaytor's car on the driveway and ran to nearby parkland.
36.Emergency services were called and attended the scene.
37.Police arrived at 12 Ensign Dale Kelmscott at 7.25 am.
38.The accused was arrested in the nearby parkland by police at 7.52 am and was taken into custody.
39.Keith CHAYTOR was declared deceased at the family home.
40.Estelle CHAYTOR was conveyed to Royal Perth Hospital where she underwent emergency surgery for her injuries.[17]
[17] See Prosecution Brief pages 35 ‑ 51; see also Tab 3 Agreed Bundle of Documents for Trial.
CAUSE OF DEATH - POST MORTEM FINDINGS KEITH CHAYTOR
41.Keith CHAYTOR sustained multiple sharp force injuries to his chest with rib and lung injuries and blood present in his chest cavities.[18]
[18] Report of Dr Victoria Kueppers, Prosecution Brief pages 19 ‑ 33.
42.He had an injury to his right forearm that cut a major artery.
43.Keith CHAYTOR died as a result of these injuries.
44.Keith CHAYTOR sustained further non‑fatal stab injuries, including to his right thigh.
INJURIES TO ESTELLE CHAYTOR
45.Estelle CHAYTOR sustained stab wounds to the left side of her neck, chest and arm.
46.Estelle Chaytor required emergency surgery to attend to the wound to her jugular vein and then to explore the wounds to her body.
47.She also had surgery to her left arm and wounds to both thumbs. Estelle CHAYTOR remained in hospital from 27 April 2018 to 1 May 2018.
48.Estelle Chaytor has fully recovered from her physical injuries.
49.Estelle Chaytor has recently received treatment for depression.
ARREST OF THE ACCUSED
50.At 7:50 am on 27 April 2018, Nigel Chaytor was seen walking in the parkland adjacent to the family home and was arrested by responding police.
51.At the time of his arrest, Nigel Chaytor was covered in blood and was himself suffering bilateral hand wounds requiring surgery at Fiona Stanley Hospital on 27 April 2018.[19]
[19] Report of Dr Narula, Fiona Stanley Hospital, dated 27 April 2018 and operation report; Tab 8 Agreed Bundle of Documents for Trial.
52.The accused was attended to by the St John's Ambulance officers due to the lacerations to his hands.
53.The accused was taken to the Fiona Stanley Hospital arriving at approximately 9.31 am[20] and underwent surgery at Fiona Stanley Hospital later on 27 April 2018.
[20] Running sheets of Detective Constable Sarah Behan, PD 15317 and Statement of Detective Constable Sarah Behan dated 1 May 2018; Tab 4, pages 4.6 ‑ 4.16 Agreed Bundle of Documents for Trial.
54.During the course of, and following his arrest, the accused made a number of admissions to both attending St John's ambulance officers and to attending responding police officers.
55.Notes made by the St John's Ambulance officer after the arrest of the accused noted that the accused: 'Expressed he had (a) psychic pouring and was told to write it down on paper and to physically harm his family'.[21]
[21] Patient Care Record St John's Ambulance 17341482, page 5.2; Tab 5 Agreed Bundle of Documents for Trial.
56.Notes of police officers in attendance at the time of the accused's arrest state: 'Male stated he did it due to psychotic break. Stated he had a psychic pouring and just happened to be his parents, stated it needed to be done'.[22]
[22] Running sheets of Officer Sarah Behan, PD 15317, Statement of Officer Behan dated 1 May 2018 at pages 4.6 ‑ 4.16; Tab 4 Agreed Bundle of Documents for Trial.
57.Male stated: 'He needed AFP called and people called from the Rosicrucian Order. This is a spiritual place and did a … (unclear) with his parents'.[23]
[23] Running sheets of Officer Sarah Behan, PD 15317, Statement of Officer Behan dated 1 May 2018 at pages 4.6 ‑ 4.16; Tab 4 Agreed Bundle of Documents for Trial.
58.The accused further stated: 'I had to put them to sleep, I had to stab them. Spiritual law, pouring. They are manipulative and had to be put to sleep'.
59.Further, that:
(i)Spirits contact me through telepathy, spiritual awakening;
(ii)Been in a psychic world with my ancestors;
(iii)I didn't hurt myself on purpose;
(iv)Evil people, controlling entities - parents;
(v)Psychic pouring was on them (Parents);
(vi)Been with the group for a while now;
(vii)Was told by a spirit it had to be done;
(viii)Had to take them out by any means necessary;
(ix)Spiritual awakening - psychic abilities - do not have mental awakening;
(x)Ancestors told me I have a spiritual awakening;
(xi)Drs gave me tablets and I threw them out because I don't need it;
(xii)Follow spiritual laws;
(xiii)These laws come straight from the top RO is the highest law on the land;
(xiv)Putting people to sleep isn't against the law;
(xv)They still put people to sleep in Australia because it comes from the psychic realm;
(xvi)Speak to people around the world telepathicly [sic];
(xvii)So much stress off me now I got rid of two evil manipulative people now I don't care about the punishment.[24]
[24] Running sheets of Officer Sarah Behan, PD 15317, Statement of Officer Behan dated 1 May 2018 at pages 4.6 ‑ 4.16; Tab 4 Agreed Bundle of Documents for Trial. See similar recordings in running sheets and statements of other police officers and first responders (St John Ambulance Officers) present during arrest of the accused at Tab 4 of the Agreed Bundle of Documents for Trial (Statements of Stephen Cleal, Rhys McIntosh, Benajmin Blythe, Matthew Callaghan) and running sheets of officers who attended the scene including notes of Det First Class Constable Perhavec PD 14225, pages 6.7 ‑ 6.11 Agreed Bundle of Documents for Trial.
60.Notes recorded by attending police whilst the accused was at the Fiona Stanley Hospital on 27 April 2018 at 1402 hours record that the accused said the following:
(i)I had to stab them, I had to put them to sleep;
(ii)There's a psychic spiritual law that's handed down on me;
(iii)The Rosicrucian Order is the highest order on the planet;
(iv)I get them through telepathy;
(v)If I get a spiritual law handed down on my ancestors I have to do it;
(vi)They were controlling, they were evil manipulative people;
(vii)The psychic pouring was on them;
(viii)I feel free and happy, I have two evil people out of my life;
(ix)I was told by spirit guides how it should be done;
(x)There's no mental illness in having psychic gifts;
(xi)It's a psychic uplife, it's a spiritual awakening;
(xii)If I have a spiritual awakening and the laws come down on my chakra I have to take them out by any means possible;
(xiii)These laws come straight from the top, from psychic gifted people;
(xiv)No-one puts thoughts in my head, I communicate through people around the world by telepathy;
(xv)My brain snapped, I need to be put to sleep;
(xvi)Put a tube in my chest put a dart down it and put me to sleep;
(xvii)So much stress is off me now, I've got two insane evil manipulative people out of my life forever, regardless of the consequences;
(xviii)They had to be put to sleep, end of story.[25]
[25] Running sheets of police officers dated 27/04/18 2704180710 12639; pages 6.1 ‑ 6.6 Agreed Bundle of Documents.
61.On the 28 April 2018, Nigel Chaytor was interviewed by police and although, admitted the offence, showed significant signs of poor mental health and a delusional thought process.
62.The accused was interviewed under caution by homicide detectives at 10.19 am on 28 April 2018 as an arrested suspect for the offences of murder and attempted murder.
63.During the course of the interview under caution the accused said the following:
(i)He was a caretaker at Foundation Housing (T11; PB 62);
(ii)He used to be a printing tradesman in the graphic arts industry (T11; PB 62);
(iii)'Being tapped in the head from ... tapping on my mind ...' (T7, PB 58);
(iv)'I'm doing a case study with the Rosicrucian order' (T14; PB 65);
(v)It's a psychic case that I have with the Rosicrucian Order (T14; PB 65);
(vi)'I can't really explain it to people. Everyone's been tapped by the system ... there's a tapping of mind program going on around the planet' (T14; PB 65);
(vii)(Yesterday, the day of the offences) 'I was just fine. I had my connections with my, just had connections that I just knew what I had to do to get rid of the cult leaders. My family is the tapping of the mind program and my family is a cult. And I had to put two cult leaders to sleep under a psychic law' (T15; PB 66);
(viii)'Put to sleep, as in you go to bed. You know ... that's all you know, that's all' (T15; PB 66);
(ix)'I've been happy with how I've been treated but not with my injuries, not really ... well actually I'm being manipulated so I'm not really happy about that' (T17 ‑ 18; PB 68 ‑ 69).
64.The accused was admitted to the Frankland Centre on 29 April 2018 on a Hospital Order and has remained at the Frankland Centre as an involuntary patient since that time.
65.The admitting doctor at the Frankland Centre made notes on 30 April 2018, following the accused's admission to the Frankland Centre noting that the accused told doctors that:[26]
[26] Report of Dr Adam Brett, 2 April 2019 pars 43 ‑ 46, Prosecution Brief page 94.
(i)He had had a psychic experience from an order;
(ii)He was told to remove his parents;
(iii)He believed his parents were in a cult and under psychic law 'these people must be put down';
(iv)His parents were psychopathic and manipulative.
56.The accused was assessed as being psychotic and was commenced on antipsychotic medication.[27]
[27] Report of Dr Adam Brett, 2 April 2019 pars 43 ‑ 46, Prosecution Brief page 94 par 46.
PSYCHIATRIC HISTORY OF THE ACCUSED
67.The accused's first psychotic episode occurred in February 2014.
68.On 26 February 2014 the accused posted the following on social media:
'Hello everyone, I hope you all have a great life, unconditional love and empathy to the human race. We are all one consciousness in physical human form. A projection from the edge of the universe, in a holographic universe. Have no fear People, you last forever and ever, nothing ever ends.
Transformation of consciousness is here. I have had a pouring. I am a student with the Rosicrucian Order. We are all here to evolve our soul in physical life and have a human experience. On my first and last pass I was here for this event, all my life leads to this, it was meant to be. I have still had a great life, it's been a hard rod, but I got to where I want to be, I have now smashed the matrix and have come to consciousness.
Spiritual awakenings time on mother earth.
Love to all Nigel Chaytor 5/9/1975 to 26/2/2014.
Off to the 9th dimension, this is where the powerful souls and angels live.'[28]
[28] Facebook Post Nigel Chaytor's Facebook Profile 26 February 2014; Page 1.1 of Agreed Bundle of Documents for Trial.
69.Medical records from Armadale Mental Health Service show that the accused presented to the Emergency Department on the 25th of February (2014) following which he was admitted involuntarily to the Leschen Unit secure ward (High Dependency Unit).[29]
[29] See Tab 2, pages 2.1 ‑ 2.14 for medical notes from the accused's admission, especially page 2.12; Agreed Bundle of Documents for Trial.
70.The admission notes document that the accused claimed that he was possessed with cosmic and psychic abilities and that he was clairvoyant, that he was enlightened with spiritual energy through his 'crown chakra' and that he was connected telepathically to the metaphysical realm,[30] stating, inter alia, 'too much information is pouring in through my crown chakra' … 'because I am psychic'.[31]
[30] Summarised in Mental Health Tribunal Report 8 March 2016 re continuation of Community Treatment Order at pages 2 ‑ 3.
[31] See page 2.12 Agreed Bundle of Documents for Trial.
71.The Integrated progress Notes of Armadale Health Service of 26 February 2014 reflect that the accused stated he had experienced a spiritual awakening and is psychic. Stated this is not causing him any distress. The accused was commenced on Olanzapine.[32]
[32] Armadale Health Service, Integrated Progress Notes, entry 26/2/2014; Tab 2 Agreed Bundle of Documents for Trial.
72.The accused was hospitalised from 25 February 2014 until his discharge on 4 April 2014 on a Community Treatment Order under the Mental Health Act with the principal diagnosis of 'delusional disorder'.[33]
[33] Mental Health Case Transfer Summary signed Kira Creusot, page 2.12, Agreed Bundle of Documents for Trial.
73.On 11 March 2014, during the course of his admission to the Leschen Unit Open Ward, the accused absconded and visited the Australian Federal Police offices in Perth.
74.Whilst at the offices of the AFP the accused claimed to have deciphered a criminal code created by bikie gangs and making other claims about pastors in the Armadale area.[34]
[34] Mental Health Tribunal Report 8 March 2016 at page 3; pages 2.41 ‑ 2.47 Agreed Bundle of Documents for Trial; see also Inpatient Discharge Letter pages 2.10 ‑ 2.11; Tab 3 Agreed Bundle of Documents for Trial.
75.Clinical notes headed 'Client Management Plan' dated 30 March 2014 reflect:
'Nigel believes he has psychic ability of the highest order and that he is a clairvoyant (can make predictions come true). Believes he gets empowering of spiritual energy through his crown chakra that give him "Rosicrucian" - a particular sleep order and relaxes his mind. He also believes he is connected telepathically to the spiritual world and also frequently visited by spirits whose presence he can feel. He feels the messages all over his body by the spirits. He also hears them talking to him "Hi hello". He believes people are after him trying to central him and tap his mind. Feels he needs to go to the 9th dimension where he is from.'[35]
[35] Client Management Plan, Armadale Hospital dated 30 April 2014, page 2.7 Agreed Bundle of Documents for Trial.
76.Follow up reports from Armadale Health Service reflect that the accused was not compliant with his oral medication, was continually followed up by the Armadale Health Services to take the depot Injection.
77.During the course of follow up with the Mental Health Service the notes reflect that the accused 'still believes that may be Federal Police and pastor at church in Armadale are connected to each other and that pastor has network which supply drugs in the area' … and noting that he experiences chronic paranoid delusional themes residual in nature … and still lacks insight into his mental state. He believes that his CTO won't be renewed'.[36]
[36] Armadale Health Service, Integrated Progress Notes October 2014.
78.Armadale Health Service follow up clinical notes reflect that the accused was actively followed up in the community from his discharge from hospital in April 2014 until approximately January 2018.
79.Dr Pascu noted that following January 2018 there appears to have been no follow up organised.[37]
[37] Report of Dr Victoria Pascu dated 13 December 2018 at par 68; Prosecution Brief page 84.
80.Clinical Notes for 16 February 2015 reflect that the accused:
'Spoke at length about his spiritual awakening prior to admission. He stated that he had been contacted by powerful psychics the world over that had precipitated his awakening. He states the voices he hears are focused on loving kindness. He states that as he now knows what they are he is no longer distressed. He stated he had alien contact 2013 prior to his awakening. He states that these beliefs are in the context of his spirituality. He states he has had two or three events since leaving hospital of this nature but he's ok about them now because he understands them.'[38]
[38] Armadale Health Service Integrated Progress Notes entry 16/2/2015, pages 2.18 ‑ 2.19 Agreed Bundle of Documents for Trial.
81.The Community Treatment Order was renewed on 28 October 2014 and was ongoing until late 2016.[39]
[39] Report of Dr Victoria Pascu dated 13 December 2018 at par 67; Prosecution Brief page 84.
82.Contact with Armadale Health Service continued throughout 2015 with the clinical notes reflecting that the accused maintained that he had no mental illness, he did not believe that he needed injections (depot) and that he feels that 'the angels in his home are healing him'.[40]
[40] Armadale Health Service Integrated Progress Notes entry 30/4/2015, pages 2.28 ‑ 2.30 Agreed Bundle of Documents for Trial.
83.The clinical notes reflect further that the accused did not wish to take the depot because he 'get(s) healing from paranormal interventions, contacts with ancestors. Reported alien/UFO contact 2013 with aliens coming into his home'.[41]
[41] Armadale Health Service Integrated Progress Notes entry 7/05/2015; pages 2.30 ‑ 2.31 Agreed Bundle of Documents for Trial.
84.Clinical notes of contact with the accused by the Armadale Health Service in late 2015/2016 shows that the accused was increasingly antagonistic towards the Community Treatment Order and taking the depot injections, that he had little insight into his mental health and management of his mental health illness.
85.The accused was actively followed up on a regular basis through to early 2017 for his depot injections; case notes reflect that the accused was not accepting of the need for the CTO to remain, nor for the need for him to take depot injections, nor oral medications.
86.In the Mental Health Tribunal report dated 8 March 2016, for the purposes of determining whether the Community Treatment Order ought to remain in respect of the accused, Dr Payal Sawhney, consultant psychiatrist, made a number of observations.[42]
[42] Mental Health Tribunal report dated 8 March 2016 at pages 2.41 ‑ 2.47 Agreed Bundle of Documents for Trial; Mental Health Tribunal Report dated 23 December 2016; pages 2.48 ‑ 2.55 Agreed Bundle of Documents for Trial.
87.Dr Sawhney noted that the accused had:
(i)Reported having a guardian angel who gives him back massages;
(ii)Reported auditory hallucinations (he has reported having telepathic sessions with psychics around the world where they discuss their thoughts);
(iii)Continued to lack insight into his mental illness;
(iv)Did not consider that he required antipsychotic medication or input from mental health services;
(v)Reported having paranormal experiences since 2007 after his grandmother passed away, feeling her presence with her hands on his cheeks;
(vi)Reported feeling his grandfather patting him on the day he was buried and then passing his fingers down the accused's back;
88.Dr Sawhney diagnosed the accused with schizophrenia.
CRIMINAL HISTORY
89.The accused comes before the Court with no criminal history.
ADMISSION TO THE FRANKLAND CENTRE
90.The accused was referred to the Frankland Centre on a Hospital Order on 29 April 2018.
91On arrival into hospital Consultant Forensic Psychiatrist Gosia Wojnarowska assessed the accused as having a major mental illness (paranoid schizophrenia).[43]
[43] Report of Dr Brett, Consultant Psychiatrist, to The Presiding Magistrate dated 26 June 2018 at pages 10.3 ‑ 10.6 Agreed Bundle of Documents for Trial (opinion at page 10.5).
92.Dr Wojnarowska by report to The Presiding Magistrate Perth Magistrates Court dated 26 June 2018 also noted:[44]
(i)On arrival in hospital Mr Chaytor reported intensely held beliefs of a grandiose nature that he is psychic clairvoyant with spiritual powers;
(ii)He expressed multiple paranoid delusions regarding cults and greater powers;
(iii)Mr Chaytor's mood is very stable but his chronic delusions remain;
(iv)Mr Chaytor is aware of the actions that led to him being arrested, he does not deny them and states that it was a psychic ruling handed down to him and he simply had to obey;
(v)Nigel has developed much more insight since his commencement on Clozapine.
(vi)He now accepts that the events for which he has been charged may have been the result of mental illness which he calls a 'psychic attack';
(vii)He believes he was of unsound mind at the time describing himself as 'not in body and soul';
(viii)His delusional belief system around the Rosicrucian order appears to be diminishing.[45]
[44] Report of Dr Brett, Consultant Psychiatrist, to The Presiding Magistrate dated 26 June 2018 at page 10.6.
[45] Exhibit 1.
General legal principles
The accused is presumed to be innocent of both charges on the indictment. Putting to one side the issues raised by the pleas of not guilty on account of unsoundness of mind, the State has the onus of proving his guilt of the charges. For the State to discharge that onus it is required to prove beyond reasonable doubt that the accused is guilty of a charge. The State bears the onus of proving each element of a charge to that standard.
If it is necessary to draw inferences from the evidence, I may only draw an inference adverse to the accused in respect of an issue on which the onus of proof is on the State if it is the only reasonable inference to draw from the evidence. If there is an alternative conclusion open within reason, I must not draw the inference necessary to prove the relevant element of the charge. This direction applies not only to each element of a charge but to any issue the onus of which is on the State to prove.
I must decide the case based on the evidence which has been produced in the trial. I must assess that evidence dispassionately. I must not decide the case based on prejudice against any person or sympathy towards any person. I must not guess or speculate about matters which are not in evidence.
Given that both parties agree that as of 27 April 2018 the accused was suffering from schizophrenia or paranoid schizophrenia, I should not judge his capacity to understand what he was doing, to control his actions or to know that he ought not do an act by the standards of people who do not suffer from a mental illness.
The two psychiatric witnesses are experts. I am not bound to accept and act upon a witness's evidence, even an expert witness's evidence. I may reject expert evidence if there is other evidence to support my findings or if I conclude that the expert's opinion is unreliable or is based on an incorrect understanding of the law. Nevertheless, I am not entitled to disregard expert evidence capriciously. If there are no facts and no circumstances which, in my view, throw doubt on that evidence, I must accept it.
Neither party disputes the expertise of the opposing party's psychiatric expert witness. However, the experts are not in complete agreement on the capacities which the accused had or was deprived of at the time he killed Mr Chaytor and injured Mrs Chaytor.
It is for me to decide whose opinion I accept in whole or in part. The determination of matters of conflict between witnesses may depend upon which party has the onus of proof in relation to the issue in dispute. It may also depend on my decision as to whether the facts upon which an expert's opinion is based in accordance with the facts as I have found them to be, whether the expert has taken into account the facts which I have found were not proven and the extent to which an expert's opinion reflects the law.
The accused did not give evidence. It was his right not to do so and his decision not to give evidence may not be used against him.
The State relies on alleged oral admissions made by the accused to others about his involvement in the incident the subject of the charges. Before I can rely on an alleged admission I must be satisfied that the accused made the statement, that it is true and that it implicates him in a charge.
Elements of the offence of murder
Before I may find the accused guilty of the offence of murder I must be satisfied that the State has proved each of the following elements of the offence to the standard of beyond reasonable doubt:
(1)that the accused killed Mr Chaytor;
(2)the killing was unlawful; and
(3)at the time the accused killed Mr Chaytor he intended to cause Mr Chaytor's death or intended to cause him a bodily injury of such a nature as to endanger, or be likely to endanger, his life.
Before I can find that the accused killed Mr Chaytor I must be satisfied beyond reasonable doubt that he caused the death of Mr Chaytor either directly or indirectly by some means. This means that he has to have been proven to have made a significant or substantial contribution to the death of Mr Chaytor.
I will not determine the third element of murder as the accused has satisfied me on the balance of probabilities of the insanity defence.[46]
[46] Ward v The Queen [2000] WASCA 413; (2000) 118 A Crim R 78.
Elements of the offence of attempted murder
Before I may find the accused guilty of the attempted murder charge I must be satisfied that the State has proved each of the following elements of the offence to the standard of beyond reasonable doubt:
(1)that the accused stabbed Mrs Chaytor;
(2)that the stabbing of Mrs Chaytor was unlawful;
(3)that at the time the accused stabbed Mrs Chaytor, he intended to kill her; and
(4)that the accused stabbed Mrs Chaytor with a view to putting into effect his intention to kill her.
It follows from the reasoning in Ward v The Queen that because the accused has satisfied me of the insanity defence I ought not determine whether the third and fourth elements of attempted murder have been proved.
The law applying to the insanity defence
The accused's acts which killed Mr Chaytor and injured Mrs Chaytor will not be unlawful if he was of unsound mind at the time he did them.[47]
[47] This is sometimes called the insanity defence.
Every person is presumed to be of sound mind and to have been of sound mind at any time which is in issue, until the contrary is proved.[48] The accused has the burden of proving that he was not of sound mind at the time he did the acts which are alleged to constitute these two offences. The accused must prove that he was not of sound mind on the balance of probabilities.[49]
[48] Criminal Code s 26.
[49] R v Porter [1933] HCA 1; (1933) 55 CLR 182.
Whether the accused proves that he was not of sound mind depends on the application of the Code s 27(1) which states:
Insanity
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
The State did not assert that s 27(1) did not apply because the accused was intoxicated.[50]
[50] See the Criminal Code s 28.
Mental impairment
The phrase 'mental impairment' is defined to mean:
Intellectual disability, mental illness, brain damage or senility;[51]
[51] Criminal Code s 1.
The accused says that he had a mental illness, being paranoid schizophrenia or schizophrenia, at the time he did the acts which are alleged to constitute both offences.
'Mental illness' is defined to mean:
[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;[52]
[52] Criminal Code s 1.
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.[53]
[53] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 60.
The definition of 'mental illness' reflects comments made by King CJ in Radford[54] about the meaning of the expression 'disease of the mind' which is used in the common law of insanity. Summarising the relevant portions of the statement of King CJ:
(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 of psychoses such as schizophrenia are clearly diseases of the mind.
(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'.
(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'.[55]
[54] Radford (1985) 20 A Crim R 388, 396.
[55] Radford (396); in R v Falconer, the High Court generally approved of King CJ's comments even in the context of the then Code provisions.
It is not in dispute that schizophrenia and paranoid schizophrenia are mental illnesses and states of mental impairment for the purpose of the Code s 27.
The accused says that his mental illness deprived him of the capacity to control his actions and/or the capacity to know that he ought not do the acts. He does not suggest that it caused him to lack the capacity to understand what he was doing when he attacked his parents.
Capacity to control actions
In The State of Western Australia v Marotta[56] I considered what it meant to be deprived of capacity to control one's actions for the purpose of the Code s 27. I see no reason to depart from the conclusions which I reached in that case. I set out below that portion of my judgment:
[56] The State of Western Australia v Marotta [2018] WASC 329.
39.The meaning of the Code s 27 where it says that an accused is not criminally responsible for an act if at the time of doing the act the accused is in such a state of mental disease as to deprive him of capacity to control his actions was discussed in R v Falconer.[57] Mason CJ, Brennan and McHugh JJ said:
[57] R v Falconer (46 ‑ 47).
'The incapacities to which s 27 refers include the incapacity to control actions whereas the M'Naghten Rules speak only of such a defect of reason 'as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.' The explanation for the inclusion of the incapacity to control actions in s 27 is that it mirrors the provisions of s 23, as Sir Samuel Griffith explained in his notes to the Draft Code, (1897), 14:
"An act to involve criminal responsibility must be voluntary, as distinguished from involuntary [s.23] - that is to say, it must be accompanied by volition. In order that an action may be accompanied by volition there must be in the first place perception, more or less accurate, of the facts, then a determination or choice of the action to be taken upon those facts, and finally the action. If the person in question is incapable from mental disorder of rightly perceiving the facts, he should be treated on the same footing as a man who in good faith misapprehends the facts [s.24]. If he is for the same cause incapable of exercising the power of determination or choice, he should be treated on the same footing as a man who does an act independently of the exercise of his will [s.23]." '
Also in Falconer Deane and Dawson JJ said:[58]
[58] R v Falconer (60).
'Where an accused's acts are alleged to be involuntary by reason of mental disease or natural mental infirmity, no distinction can be drawn between the defence of automatism - the absence of will accompanying the relevant acts of the accused - and the defence of insanity under s 27 of the Code. This is necessarily so because s 27 relieves a person of criminal responsibility for an act done in "such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions ...".
… Where the voluntariness of an accused's acts is to be determined by reference to a condition which, if it existed at all, must on the evidence have amounted to a state of mental disease or natural mental infirmity, the question whether the accused's acts were voluntary will be subsumed in the question whether the accused did in fact suffer from a state of insanity envisaged by the section such that it deprived him of the capacity to understand what he was doing or the capacity to control his actions. S 27 also applies where a person is by reason of mental disease or natural mental infirmity deprived of the capacity to know that he ought not to have acted as he did. That would seem to raise a question distinct from that of voluntariness.'
40.Their Honours equated a deprivation of the capacity to control ones actions to involuntariness pursuant to the Code s 23. Toohey J seems also to have equated involuntary action with the second limb of s 27. His Honour said:[59]
[59] R v Falconer (71).
'Of course, insanity is not confined to involuntary action; insanity may be established even if a person has acted voluntarily, hence the need for lack of "capacity to understand what he is doing" or lack of "capacity to know that he ought not to do the act or make the omission" as components in s 27.'
41.Similarly, Gaudron J in Falconer said:[60]
'It is clear from the terms of s 27 of the Code - "such a state of mental disease or natural mental infirmity as to deprive him ... of capacity to control his actions" that the defence of insanity or unsoundness of mind encompasses involuntariness when it proceeds from a mental disease or natural mental infirmity.'
42.I conclude that the High Court has given what some authors have described as a 'very narrow sphere of operation' to the second limb of s 27.[61] A person is deprived of the capacity to control his actions where his actions occur independently of the exercise of his will and where the person cannot exercise the power of choice to act.
43.This construction of the second limb of s 27 does not exclude those cases where a person is by their mental [illness] deprived of the capacity to control their actions in the sense that they are deprived of the capacity to refrain from doing an act or in the sense that the effect of their mental [illness] on their mind deprives them of the capacity to choose to act.
44.In the case of the effect of mental [illness] on a person's capacity to control their actions the focus will often be on the extent to which their delusions or hallucinations controlled their actions or in the words of Sir Samuel Griffith deprived them of the power of choice.
45.It will involve a consideration of the extent to which their mental [illness] compromised their ability to will their actions or to decide not to act. But it is necessary to bear in mind that the Code s 27 only applies if the accused is deprived of capacity to control actions, as opposed to something less than that such as having a significantly impaired capacity to resist an impulse or an emotion.[62]
[60] R v Falconer (82).
[61] Colvin E, McKechnie J and O'Leary J, Criminal Law in Queensland and Western Australia - Cases and Commentary (8th ed, 2018) 443 [17.33].
[62] The State of Western Australia v Marotta [39] ‑ [45].
Capacity to know that one ought not do the act/s
In The State of Western Australia v Herbert[63] I considered what it meant to be deprived of the capacity to know that one ought not do the relevant act/s for the purpose of the Code s 27. I see no reason to depart from the conclusions which I reached in that case. I set out below that portion of my judgment.
[63] The State of Western Australia v Herbert [2017] WASC 101.
53.The phrase 'so as to deprive him ... of capacity to know that he ought not do the act', is generally considered to be equivalent to the common law's M'Naghten rules alternative, that the accused was labouring under such a defect of reason as 'that he did not know that he was doing what was wrong'.
54.The leading Western Australian authority on the meaning of this limb of s 27 is Evans v The State of Western Australia [2010] WASCA 34 in which the Court of Appeal applied common law principles. McLure P considered the common law principles and said that there is no suggestion of any material distinction between the common law and s 27 on this point. Relevantly, her Honour said:
'The High Court in Stapleton elsewhere (367) identified the test as being whether at the time of the commission of the act the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act.
There is no suggestion of any material distinction between the common law and s 27 on this point. Thus the real issue for the jury in this case was whether the appellant had established on the balance of probabilities that at the time of the killing his mental impairment resulted in a complete incapacity to reason as to what is right or wrong according to ordinary standards. The term "know" means "understand", "appreciate" or "comprehend". An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from understanding that he (or she) ought not do the act. Knowledge (short of understanding) that to kill is punishable by law does not prevent such a finding. Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct. Whether an act is right or wrong is determined by reference to an objective standard. The question is whether the appellant had a complete incapacity to reason as to what was, by that objective standard, right or wrong. In this case the appellant's subjective belief was relied upon by the experts to support the conclusion that he was in a psychotic state that prevented rational reasoning on right or wrong [30] ‑ [31].'
55.Wheeler JA (Owen JA agreeing) also discussed the common law principles and then said:
'The authority most directly on point in this context is Stapleton v The Queen (1952) 86 CLR 358. In that case, having regard to the state of the evidence, it seems unlikely that there would have been any practical difference in result whether the jury had been directed in terms of a capacity to understand that an act was wrong according to ordinary standards, or to understand that it was contrary to law. It appears that that was the reason why the court would have "hesitated" to order a new trial simply because the jury had been directed that the test of insanity was whether the accused knew that firing a shot at another person was against the law (at 375). However, the court made it clear that such a direction was erroneous (at 367 ‑ 368).
It is not easy to summarise the detailed discussion of authority in Stapleton in a way which is capable of being fashioned into an appropriate direction in every case of insanity. However, the principles extracted from that discussion appear to focus upon two issues. First, the ability to know that one "ought not" to do an act or make an omission is a capacity to know that one "ought not" to do it according to ordinary standards of right and wrong, rather than knowledge that the act is unlawful... The second principle is that the capacity which must be found to be lacking is not merely a capacity to appreciate, in some abstract sense, that others would view the act as wrong. Rather, it is a capacity of the particular accused either to discern the difference between moral good and evil, or to "think rationally" of the reasons which would lead ordinary people to consider the act to be right or wrong.
... Although a direction as to whether the accused was capable of reasoning "with some moderate degree of calmness" or, as it was put in Porter, with "a moderate degree of sense and composure" is sanctioned by authority, it may in some cases, in my view, run a risk of confusing the jury. That is because these offences generally take place in circumstances in which the accused is, plainly, not composed and not calm. The relevant issue is not whether the accused is, in fact, at the particular time, reasoning calmly and rationally. The question is whether the accused's mental condition is such that the accused is incapable of thinking in a rational way [59] ‑ [61].'
56.As to what is meant by the expression 'capacity to know that he ought not do the act', I also rely on what the High Court said in Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 367:
'For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. See R v Davis (1881) 14 Cox CC 563, Stephen J, R v Kay (1904) 68 JP Jo 376, Stephen J. In R v Porter (1933) 55 CLR 1828 at pp 189, 190, this was expressed by Dixon J as follows:
"The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong (footnotes omitted)."[64]
[64] The State of Western Australia v Herbert [53] ‑ [56].
I conclude that a person who is in a state of mental illness is deprived of the capacity to know that they ought not do the act which kills or by which he puts his intention to kill into effect if he is incapable of thinking rationally of the reasons which would lead ordinary people to consider the act right or wrong by ordinary standards, as opposed to the law.
Psychiatric evidence ‑ Dr Pascu
Dr Pascu is a qualified and experienced forensic psychiatrist. She is the director of clinical services for North Metropolitan Health Service Mental Health. She is well qualified to provide an expert opinion in relation to the accused.
At the request of the accused's lawyers, Dr Pascu prepared a report concerning the insanity defence, the accused's fitness to stand trial and treatment and management recommendations. In order to prepare her report and opinion Dr Pascu read a letter of instructions from the accused's lawyers, a statement of material facts, the statements of the paramedics, police and Mrs Chaytor and the accused's medical files from the Frankland Centre and Armadale Hospital. She viewed a recording of the interview between the police and the accused. On 23 November 2018 she interviewed the accused for about two hours.
Dr Pascu took a history from the accused. The accused told Dr Pascu that he stopped using taking his medication 'properly' in about February 2018 and that two days before this incident he 'almost felt sick and dizzy, sick mentally'.[65] He described going to his parent's home on the evening before incident and hearing 'mumbling' during the night. In the morning he 'heard the clear voice' that told him to 'take out those cult leaders, my parents'. He said that the voice did not say why but it was clear and repetitive. He said that he went to the kitchen and got out the biggest knife that he could find. He said that he kept trying to stop himself but he could not. He recalled going into his parent's bedroom and stabbing first his father and then his mother when she approached. He claimed to have stabbed himself as he stabbed his father 'almost like trying to protect' his father. He said that the voice stopped after he stabbed his parents.[66]
[65] Report page 3.
[66] Report page 4.
The accused described his 'psychic experiences' which became more prominent over the approximately two weeks before the incident in the following terms:
I have been channelling to a higher level body, meditating; it is the Rosicrucian order, a spiritual thing, doctor, a psychic order for psychic people, it is metaphysical and spiritual; it is about the higher sense of self coming into the body, increasing the energy inside the body, this then puts the physical body to sleep and moves the higher sense of self into another higher spiritual, higher body; I haven't yet shifted into the higher body and I am waiting for the shift to happen, I need this body to have like a tube in the chest; the higher self moves into other body for ever and when that happens the self will be put to sleep and will fly out at the back, like wings; when that happens the body will have no organs it will be immortal; this didn't happen to me but it will.
Dr Pascu noted that the history that the accused gave to her was similar to that which he gave on admission to the Frankland Centre soon after this incident.[67] Since being admitted to the Frankland Centre he has been made an involuntary patient under the Mental Health Act 2014 (WA) and has been treated with an antipsychotic medicine.[68]
[67] Report page 8.
[68] Report page 8.
At the time of Dr Pascu's interview, the accused accepted that he had a mental illness and that he needed to continue to take his medication. He expressed remorse for what he had done.[69]
[69] Report page 9.
The accused was cooperative but distant towards Dr Pascu. There was no evidence of aggression, agitation, pressured speech or of a formal thought disorder. There was evidence of ongoing persecutory and grandiose delusions. He denied command hallucinations since the stabbings. His judgment was fair and cognitively grossly intact.[70]
[70] Report page 12.
Dr Pascu assessed the accused as being fit to stand trial.[71]
[71] Report pages 15 ‑ 16.
Dr Pascu diagnosed the accused with chronic paranoid schizophrenia which on treatment was partly in remission. She opined that his illness evolved for a period of time prior to his admission to hospital in 2014. Dr Pascu noted that the symptoms of the illness had reappeared when the accused ceased being compliant with his medication after his community treatment order (CTO) lapsed[72] and that the symptoms worsened in the period leading up to the incident when the accused ceased taking his medication. She concluded that there is no evidence to suggest that the accused was intoxicated with any substance at the time of the incident.[73]
[72] Dr Pascu said that on her reading of the material a second CTO lapsed in October 2017 and he was last reviewed by a psychiatrist in January 2018. There was no evidence of follow up after January 2018.
[73] Report page 14.
Dr Pascu expressed the opinion that at the time of Mr Chaytor's death and Mrs Chaytor's injury the accused had a relapse of acute psychotic symptoms with evidence of persecutory delusions, command auditory hallucinations, impaired judgment and impaired capacity to understand the consequences of and to control his actions. She described this cluster of symptoms as 'threat control override symptoms'. In her oral testimony she said that combination of symptoms often produces fear and anger in the patient. That combination of symptoms makes forensic psychiatrists, very alert to the acute risk that person poses.[74]
[74] ts 37 ‑ 38.
Dr Pascu is of the opinion that at the time the accused killed his father and injured his mother, he:
(1)was not deprived of the capacity to know what he was doing;
(2)was deprived of the capacity to control his actions; and
(3)was deprived of the capacity to know that he ought not do the relevant acts.
The accused's incapacity to control his actions was a result of his severe, untreated mental illness, in particular the clear command hallucinations in combination with the persecutory delusions which told him to kill the cult leaders (his parents).[75]
[75] Report page 15.
The accused's incapacity to know that he ought not do the act was due to his significantly impaired mental state and impaired judgment due to his acute psychosis with persecutory delusions and command hallucinations. In her oral testimony Dr Pascu said that the accused told her that the voice kept telling him he had to do what he had to do, and he could not stop himself from following through with the action.[76]
[76] ts 39.
I asked Dr Pascu whether the accused's comments to her that he had tried to stop himself (from stabbing his parents), tried to ignore the command to kill and cut himself because he was 'almost like trying to protect' his father indicated that the accused knew that it was wrong to kill his parents. Dr Pascu said that her opinion was that out of the two capacities of which she believed he was deprived she thought that he was definitely deprived of the capacity to control his actions but that the command to kill hallucination was so strong that it also deprived him of the capacity to know that he ought not kill. She said that it was very difficult to untangle the two capacities.[77]
[77] ts 47 ‑ 48.
In re‑examination Dr Pascu said that what she was saying was that the accused's reality was that of his psychosis and that in that reality stabbing his parents was 'the right thing to do'.[78]
[78] ts 49.
Psychiatric evidence ‑ Dr Brett
At the request of the State, Dr Brett prepared a report dated 2 April 2019. Dr Brett is a highly qualified psychiatrist. He is well qualified and experienced to give an opinion in this matter.
Dr Brett was provided with a request for a psychiatric report, the Western Australian Police statement of material facts, the witness statements of Mrs Chaytor and two family members, and the police interview with the accused. Dr Brett also had access to the Western Australian mental health database, and to the accused's clinical file at the Frankland Centre. Dr Brett also liaised with the accused's treating mental health professionals. Dr Brett interviewed the accused on two occasions in March 2019.
Dr Brett said that the accused was 'quite a vague historian' and became distressed when he was 'pushed'. However his account to Dr Brett was consistent over the two interviews and with other accounts which he has given.[79]
[79] Report page 2.
The accused told Dr Brett that at the time he went to his parents' home he had 'an overload of his thoughts'. He described command hallucinations to 'take out' his family. He believed that they were cult members. He was vague about who was making the commands but he felt unable to stop doing what they asked. He did not feel in control of himself. He said that he tried to fight the commands but they were too overwhelming. He described getting the knife and being unable to resist the command to 'take out' his parents. He denied that this involvement with the Rosicrucian movement had anything to do with the incident.[80]
[80] Report page 3.
Dr Brett found the accused to be slightly superficial and he (the accused) did not appear to understand the gravity of his situation. The accused told Dr Brett that he had been depressed. His affect was slightly restricted and inappropriate at times. He expressed ongoing spiritual beliefs about Rosicrucians.
Dr Brett diagnosed the accused with chronic treatment resistant schizophrenia. He said that at the time he interviewed the accused about a year after the relevant incident he was still psychotic despite a prolonged admission to hospital with ensured compliance with medication. Dr Brett said that there was only a semantic difference between his diagnosis and that of Dr Pascu.[81]
[81] ts 60.
Dr Brett is of the opinion that at the time the accused killed his father and injured his mother, he:
(1)was not deprived of the capacity to know what he was doing;
(2)was deprived of the capacity to control his actions; and
(3)had decreased capacity to know that he ought not do the relevant acts.
The decreased capacity to control his actions arose from the fact that he (the accused) did not feel in control of his actions and felt that external factors were controlling him.[82]
[82] Report page 10.
In evidence Dr Brett explained his opinion as follows:
This limb of the insanity defence is very difficult to prove one way or the other. It's an impulse control thing. Traditionally, we talk about the policeman at the elbow test, so would he have acted like this if there was a policeman present? And I think he may well of because he was so psychotic. But it is a very difficult limb to prove one way or the other because we all act at times impulsively and so it's very difficult to rely on that limb. So I would say that it was certainly decreased. Whether it was absent or not is a different issue.[83]
[83] ts 57.
In cross‑examination Dr Brett agreed that he could not say categorically that the accused was not deprived of this capacity.
The accused's incapacity to know that he ought not do the acts arose from his delusions that his parents were part of a cult and that they were manipulative and psychopathic. He had incorporated them into his delusional belief system. He was also experiencing auditory command hallucinations to kill them. These were overpowering and he was unable to control his actions.[84]
[84] Report page 11.
In evidence Dr Brett said that the accused did not give him the same history which he gave Dr Pascu of trying to protect his father whilst he stabbed him. He said that the history he received from the accused was that he thought his parents were evil and psychopathic. That was the key to him not thinking that his actions were morally wrong. He thought he was doing the right thing, consistent with his delusional system and the auditory hallucinations.[85]
[85] ts 58.
When I suggested to Dr Brett that the history which the accused gave to Dr Pascu of trying to almost protect his father could be the result of a growing awareness that what he had done was wrong, Dr Brett agreed that could be the case but the history which he received was that the accused felt overwhelmed by his psychotic symptoms and that feeling overrode his appropriate beliefs about his parents. He said that he 'was fairly confident' that at the time he did not know that he ought not do the acts. Dr Brett accepted that prior to the stabbing the accused was conscious of a conflict between his feelings for his parents and the command to kill them. He also accepted that the accused now knows what he did was wrong so that 'his narrative [had] probably changed'.[86]
[86] ts 59.
Count 1
Has the State proved that the accused killed Mr Chaytor?
I am satisfied beyond reasonable doubt that the accused killed Mr Chaytor in that he repeatedly stabbed him and thereby caused the injuries which caused his death.
Was the accused in a state of mental impairment at the time he killed Mr Chaytor?
I find that when the accused killed Mr Chaytor he was suffering from a psychosis which was the result of schizophrenia or paranoid schizophrenia. For my purposes there is no significant difference between the two diagnoses.
This finding is based on the uncontroverted evidence of Dr Pascu and Dr Brett. Their evidence is supported by the history of the accused’s illness and the observations of witnesses who saw and heard the accused at the relevant times.
Schizophrenia when it is accompanied by symptoms of psychosis falls within the meaning of 'a state of mental impairment' for the purpose of the Code s 27(1).
Did the accused's mental impairment deprive him of the capacity to understand what he was doing when he killed Mr Chaytor?
Neither Dr Pascu nor Dr Brett were of the opinion that the accused was deprived of the capacity to understand what he was doing when he killed Mr Chaytor. I agree with their opinions.
The accused has given numerous accounts of his relevant actions. In all of them he appeared to know at the time of his actions that he was stabbing the victims, and that as result of his assaults they may die.
I am not satisfied that the accused has proven on the balance of probabilities that his state of mental impairment deprived him of the capacity to understand what he was doing when he killed Mr Chaytor.
Did the accused's mental impairment deprive him of the capacity to control his actions which killed Mr Chaytor?
Dr Pascu is of the opinion that the accused was deprived by his state of mental impairment of the capacity to control his actions. This is on the basis that the accused was subject to a command hallucination and persecutory delusions which then affected his judgment and capacity to control his actions. She said that she believed the accused when he told her that he felt powerless to resist the command to kill his parents.
Dr Brett on the other hand concluded that this capacity was impaired but the accused was not deprived of this capacity. This is on the basis that he could not say that the accused was deprived of this capacity as opposed to him acting impulsively.
I have discussed earlier in this judgment the law relating to this limb of s 27. I will apply my conclusion that although the High Court in Falconerpreferred a narrow view of this limb (which appears to equate it to an unwilled or involuntary act done by a sane person), it still includes those cases where a person is by their mental illness deprived of the capacity to control their actions in the sense that they are deprived of the capacity to refrain from doing an act or in the sense that the effect of their mental illness on their mind deprives them of the capacity to choose to act.
I am cognisant that the Code s 27 only applies if the accused is deprived of capacity to control actions, as opposed to something less than that such as having a significantly impaired capacity to resist an impulse or an emotion.
After having given consideration to the law and the evidence, I am satisfied on the balance of probabilities that the accused has proven that the psychosis (being a symptom of his schizophrenia) deprived him of the capacity to control his actions which killed Mr Chaytor.
In making this finding, I have taken into account that Sir Samuel Griffith said that if because of mental disease a man is incapable of exercising the power of determination or choice, he should be treated on the same footing as man who does an act involuntarily; that is, he should be considered as being deprived of the capacity to control his actions.
The accused was floridly psychotic at the time he killed. He believed that he was being commanded by a third person to kill his parents who he believed were evil people. The command overwhelmed him and all rational thoughts of the love and affection which he had for his parents. He deliberately acted on the command but he was not able to choose not to act on it.
A person with a psychosis may still have the capacity to control their actions. It is the severity of the accused's psychosis which is persuasive. The accused's actions and words on 27 April 2018 were very deluded. Soon after the killing his account of his actions evidenced the severity of his delusions and the nature of the command to kill his parents. These delusions and the command controlled his actions in the sense that they deprived him of his power of choice. Similarly his account of his actions when he was admitted to the Frankland Centre evidenced the extent and severity of his psychosis. He expressed multiple paranoid delusions regarding cults and greater powers and told doctors that his actions were the result of a psychic ruling handed down to him and that he simply had to obey. Dr Wojnarowska stated that he reported intensely held beliefs of a grandiose nature that he was a psychic clairvoyant with spiritual powers.
As a consequence he did not have the capacity to decide whether, for example, a thought was the product of a delusion or an emotion caused by his psychosis such that he should choose not to do an act that was the result of that thought. In this way he acted without his own determination or choice.
In coming to this finding, I have taken into account Dr Brett's contrary opinion. He referred to the question as to whether the accused would have stabbed his parents if a policeman was present. Whilst that test is often helpful, it can mask the true issue. A psychotic person may not have acted as alleged if a policeman had been present because presence of the policeman may have broken through the false reality which was a product of their psychosis. Whereas if there is no policeman or other person present and they are overwhelmed by the symptoms of the psychosis, they should be able to rely on the insanity defence if they are deprived of their power of choice even if in different circumstances they may have acted differently.
Did the accused's mental impairment deprive him of the capacity to know that he ought not do the acts which killed Mr Chaytor?
It is unnecessary for me to make a determination on this issue as I have found that the accused lacked the capacity to control his actions.
Both psychiatrists are of the opinion that the accused also lacked this capacity. The only reason I hesitate to rely on their opinions is that the accused has more recently expressed to the psychiatrists that he tried to fight the command to stab his parents. This suggests that he knew what he was doing was wrong. He also told attending police that there was 'so much stress off me' because he had killed 'two evil manipulative people' and that he did not care 'about the punishment'. The latter comment indicates that he knew that what he had done was wrong according to human law.
The accused's comments much later to Dr Pascu, and to a lesser extent, Dr Brett to the effect that he tried to stop himself from stabbing his parents are not consistent with those that he made soon after stabbing his parents which were to the effect that his parents were evil and had to be killed as well as to the effect that he was told to kill by a higher being and he had to obey that order. I rely on what he said at the time rather than on what he said to the psychiatrists.
I also take into account that Dr Pascu is of the opinion that the accused had persecutory beliefs that is that if he did not act as commanded his life would be in danger.
I find that the accused was in a very specific delusional state at the time he stabbed his parents. He believed that his parents were evil and killing them was the right thing to do. He believed that he had been commanded by 'the highest law on the land' to kill them and 'it (the killing) needed to be done'. There is evidence to support a finding that the accused thought that his parents were a direct risk to other people to the extent that he did not know that he ought not stab and kill them.
A conclusion that an accused lacked the capacity to control his actions is very close to a finding that he was without the capacity to know that he ought not do the acts which killed but it is not quite the same thing. The difference may be between an inability to stop, think and choose before acting on an impulse to act (incapacity to control actions) and stopping, thinking and choosing to act before acting but not being able to think rationally of the reasons which would lead ordinary people to consider whether the chosen act is right or wrong (incapacity to know that one not ought do the act). The latter ability is not absent simply because the first is absent.
However I conclude on the basis of the accused's otherwise motiveless attack on his parents and what he said very soon after it that the accused was at the time he attacked his parents acting on the command of the 'highest law' to attack his parents. He delusionally believed that the command to kill came from the highest law, which was morally above the law that may impose earthly punishments. He did not have the capacity to know that he ought not act on the command because he was incapable of reasoning with any degree of calmness as to the wrongness of his acts. He was incapable of thinking rationally of the very obvious reasons, reasons which would lead an ordinary non‑psychotic person to know that stabbing his parents was morally and legally wrong.
I accept the opinion of the psychiatrists that the accused was deprived of the capacity to know that he ought not do the acts which killed Mr Chaytor. This is because I accept that what the accused said on 27 April 2018 accurately reflected his state of mind at the time of the attack.
Count 2
Has the State proved that the accused stabbed Mrs Chaytor?
I am satisfied beyond reasonable doubt that the accused repeatedly stabbed Mrs Chaytor.
Has the State proved that the stabbing was likely to endanger human life?
Mrs Chaytor received multiple serious injuries as a result of the accused stabbing her. She required surgery to prevent more serious consequences to her health. I am satisfied beyond reasonable doubt that the stabbing was likely to endanger her life.
Was the accused in a state of mental impairment at the time he stabbed Mrs Chaytor?
I find that when the accused stabbed Mrs Chaytor he was suffering from a psychosis which was the result of paranoid schizophrenia.
Schizophrenia when it is accompanied by symptoms of psychosis falls within the meaning of 'a state of mental impairment' for the purpose of the Code s 27(1).
Did the accused's mental impairment deprive him of the capacity to understand what he was doing when he stabbed Mrs Chaytor?
Neither Dr Pascu nor Dr Brett were of the opinion that the accused was deprived of the capacity to understand what he was doing when he stabbed Mrs Chaytor. I agree with their opinions for the same reasons which I expressed in relation to this issue and count 1.
I am not satisfied that the accused has proven on the balance of probabilities that his state of mental impairment deprived him of the capacity to understand what he was doing when he stabbed Mrs Chaytor.
Did the accused's mental impairment deprive him of the capacity to control his actions which injured Mrs Chaytor?
Only Dr Pascu was of the opinion that the accused was deprived by his state of mental impairment of the capacity to control his actions. This is on the basis that the accused was subject to command hallucinations and persecutory delusions. He tried to resist the commands but felt powerless to do so.
I am satisfied on the balance of probabilities that the accused has proven that his mental impairment deprived him of the capacity to control his actions which injured Mrs Chaytor. In making this finding I apply my reasoning in relation to this issue and count 1.
Did the accused's mental impairment deprive him of the capacity to know that he ought not do the acts which injured Mrs Chaytor?
My reasoning in relation to this issue and count 1 applies equally to count 2.
For those reasons I am satisfied on the balance of probabilities that the accused's mental impairment deprived him of the capacity to know that he ought not do the acts which injured Mrs Chaytor.
Conclusion and verdicts
For the above reasons the accused is not criminally responsible for his actions which killed Mr Chaytor and injured Mrs Chaytor.
I find the accused not guilty of the murder of Keith David Chaytor on account of unsoundness of mind.
I find the accused not guilty of the attempted murder of Estelle Marie Chaytor on account of unsoundness of mind.
I enter verdicts of acquittal on account of unsoundness of mind on both charges on the indictment.[87]
[87] CPA s 147(2).
As required by law I make a custody order.[88]
[88] Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 21(a).
Comment
Nothing in this judgment should be read as endorsing the portion of Dr Pascu's report under the heading of 'recommendations'. To the extent that the doctor contemplates the future release of the accused on anything other than a CTO, I wish to make it clear that on present indications it is my opinion that if the accused is released from custody (a decision which is not for me to make) he should be on and remain on a CTO in order to ensure the safety of the community.
It is likely that Mr Chaytor would not have been killed and Mrs Chaytor would not have been injured by the accused if his CTO had remained in place. The emphasis in his future treatment and management should be on protecting the community rather than on employing the treatment and management options that are least restrictive for the accused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Jenkins2 JULY 2019
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