The State of Western Australia v Chiha
[2015] WASC 138
•22 APRIL 2015
THE STATE OF WESTERN AUSTRALIA -v- CHIHA [2015] WASC 138
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 138 | |
| Case No: | INS:117/2014 | 13 - 16 APRIL 2015 | |
| Coram: | McKECHNIE J | 22/04/15 | |
| 50 | Judgment Part: | 1 of 1 | |
| Result: | Guilty murder Guilty unlawful wounding | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA MESSAOUD CHIHA |
Catchwords: | Criminal law Murder Intention to kill or cause life threatening injury Unsoundness of mind Depression a mental illness Whether insane automatism Turns on own facts |
Legislation: | Criminal Code (WA), s 27, s 279 |
Case References: | Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659 R v Falconer (1990) 171 CLR 30 R v Ping [2005] QCA 472; (2006) 2 Qd R 69 Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 Taylor v The Queen (1978) 45 FLR 343 Turner v The Queen [2004] WASCA 127 Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 Willmot v The Queen [No 2] (1985) 2 Qd R 413 Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91 Woodbridge v The Queen [2010] NSWCCA 185; (2010) 208 A Crim R 503 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- prosecution
AND
MESSAOUD CHIHA
Defence
Catchwords:
Criminal law - Murder - Intention to kill or cause life threatening injury - Unsoundness of mind - Depression a mental illness - Whether insane automatism - Turns on own facts
Legislation:
Criminal Code (WA), s 27, s 279
Result:
Guilty murder
Guilty unlawful wounding
Category: B
Representation:
Counsel:
prosecution : Mr N R Cogin
Defence : Mr S B Watters & Mr J J Morris
Solicitors:
prosecution : Director of Public Prosecutions (WA)
Defence : Morris Criminal Law
Case(s) referred to in judgment(s):
Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500
Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659
R v Falconer (1990) 171 CLR 30
R v Ping [2005] QCA 472; (2006) 2 Qd R 69
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
Taylor v The Queen (1978) 45 FLR 343
Turner v The Queen [2004] WASCA 127
Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254
Willmot v The Queen [No 2] (1985) 2 Qd R 413
Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91
Woodbridge v The Queen [2010] NSWCCA 185; (2010) 208 A Crim R 503
- McKECHNIE J:
How this case comes to court: an overview
1 Messaoud Chiha was married to Souad Benhammadi for more than 20 years. Originally from Algeria they eventually settled in Western Australia. There are four children of the marriage, two daughters, Wissam and Malak, and two sons, Youcef and Dheya.
2 By April 2013, the marriage was falling apart. Messaoud Chiha, who had been verbally and physically aggressive to his wife during the course of their marriage, threatened her with a knife on 23 March 2013 which resulted in the police being called and he being issued with a 72-hour notice preventing him from returning to the family home. The police did not find the knife because he had hidden it.
3 Five weeks later, on Monday, 29 April 2013, after dinner, Messaoud Chiha ordered Malak, Youcef and Dheya to go to bed. About 9.30 pm, he called his wife from Malak's room where she was reading and, shortly after, stabbed her repeatedly. Youcef, who tried to prevent the stabbing, was wounded probably when his father attacked him with a glass vase which smashed. Neighbours tried to calm Messaoud Chiha while the family locked themselves in the house and called for medical assistance. He complained to a neighbour about the laws of Australia that protect women. After appearing to settle, Messaoud Chiha shoulder charged the front door to no avail, so entered through the back of the house, jumping a fence to do so and picking up a piece of wood as a weapon. While his main purpose seems to have been to attack Youcef again, he also kicked his wife a couple of times in the head.
4 Paramedics arrived but it was too late. Souad Benhammadi died as a result of a penetrating wound to the chest. The kitchen knife Messaoud Chiha used to stab his wife was broken. He was restrained by neighbours until police arrived. Subsequently interviewed by police, he repeatedly denied killing his wife or having a knife.
5 Messaoud Chiha was tried as requested by him: by a judge sitting without a jury. The trial took place over four days from 13 to 16 April 2015 nearly two years after the death of his wife.
6 He asserts he is not criminally responsible because he was insane at the time. He argues that even if he cannot establish that he was of unsound mind, the State cannot establish that he committed the killing with any intent.
7 For the reasons which follow, on count 1 I find Messaoud Chiha guilty of murder. On count 2 I find Messaoud Chiha guilty of unlawfully wounding Youcef Chiha, his son.
The charges
8 The accused is charged that:
(1) on 29 April 2013, at Canning Vale, Messaoud Chiha murdered Souad Benhammadi; and
(2) on the same date and at the same place, Messaoud Chiha unlawfully wounded Youcef Chiha and that Messaoud Chiha was in a family and domestic relationship with Youcef Chiha.
9 At the commencement of the trial, the accused pleaded not guilty on account of unsoundness of mind under the Criminal Code (WA) s 27.
Admissions made
10 The accused made the following admissions pursuant to the Evidence Act 1906 (WA) s 32:
(1) on 29 April 2013, at Canning Vale, he stabbed Souad Benhammadi;
(2) he stabbed Souad Benhammadi with a knife causing a penetrative wound to the chest and other injuries;
(3) the knife used to stab Souad Benhammadi was a black-handled kitchen knife which broke during the incident; and
(4) Souad Benhammadi died as a direct result of being stabbed by him.
The legal principles
11 There are a number of legal principles which govern this trial.
1. The presumption of innocence
12 There is a legal presumption that the accused is innocent of the charge of murder or wounding. That presumption continues to apply throughout the trial and my deliberations, ceasing only if displaced by proof of guilt beyond reasonable doubt.
2. The burden of proof
13 The second principle flows from the first. At all times the onus is on the prosecution to prove the case of murder or wounding. This onus never shifts to the accused for the simple reason that his innocence is presumed. The accused did not give sworn evidence although he did make an extensive electronic record of interview (EROI exhibit J). The fact that he did not give evidence has no significance. It is his right and I draw no adverse inference from him because he has exercised that right.
3. The standard of proof
14 In order to sustain a verdict of guilty and negate the presumption of innocence, the prosecution must prove its case in respect of each count beyond reasonable doubt. Any less standard of proof is insufficient to find the accused guilty of the count of murder or wounding. If I am not satisfied beyond reasonable doubt that the only inference available is one of the accused's guilt, then the prosecution has failed to discharge the high standard of proof necessary to sustain a conviction. A conviction can only be sustained if there is no reasonable doubt about the accused's guilt. If the prosecution fails to establish the crime of murder then the alternative count of manslaughter is to be considered.
4. Presumption of sanity
15 There is a legal presumption that the accused was sane at the time he did the acts which led to death or wounding. By reason of his plea, the accused puts in issue the question of unsoundness of mind. The presumption can be displaced by evidence which establishes on the balance of probabilities that he was of unsound mind at the time. Because he is presumed to be sane, the burden is on the accused to establish that he is not.
16 During the course of these reasons, including the overview at the commencement I will use the expressions 'I find' or 'I am satisfied'. These indicate facts or other matters which I have found proven by the prosecution to my satisfaction beyond reasonable doubt or proven by the accused on the balance of probabilities. I will state facts that I find to have been proven. I use these expressions for convenience but have steadily borne in mind the necessary standard of proof required.
The real issues
17 The admissions made by the accused relieve the prosecution of the burden of proving that the accused killed the deceased. That killing is an unlawful killing unless excused by the provisions of the Criminal Code s 27, which relieve a person of criminal responsibility for certain acts done in a state of mental impairment.
18 The live issues in the case are:
• Whether the accused is relieved of criminal responsibility due to unsoundness of mind.
• If presumed sane, whether the accused killed the deceased with a specific intention.
19 In order to sustain a verdict for murder, the prosecution bears the burden of proving beyond reasonable doubt that at the time of the killing, the accused either intended to cause the death of the deceased, or intended to cause a bodily injury of such a nature as to endanger, or be likely to endanger, her life.
20 The defence bears the burden of establishing on the balance of probabilities that the killing was excused by reason of the accused's insanity.
21 The possible verdicts on count 1 are guilty of murder, guilty of manslaughter, not guilty on account of unsoundness of mind.
22 Although not the subject of a formal admission, it is not really in issue that in the course of the events of 29 April 2013 the accused attacked Youcef, I find that he did so by smashing a glass vase on Youcef causing lacerations which penetrated through the skin and which constitute wounding.
23 The possible verdicts on count 2 are guilty or not guilty on account of unsoundness of mind.
24 Most of the evidence is not in contest. In addition to physical exhibits, a plan, photographs and sketches, the evidence comes from members of the accused's family, neighbours, police who attended the incident on 23 March 2013, police who attended on the night of the killing and detectives who interviewed the accused and electronically recorded the interview. On the question of unsoundness of mind, I have the opinion of two experienced psychiatrists, Professor Skerritt and Dr Brett.
The post mortem
25 Dr Gerard Cadden, a forensic pathologist, conducted a post mortem examination of the body of the deceased. The principle matter of significance from his evidence was the small amount of force necessary to cause the fatal penetrating injury. I find there were at least two blows with a knife. One blow to the face caused two wounds joined by bruising. The second was the fatal wound entering from the back. There is a third wound to the face. While I find it was caused during the attack by the accused I am not satisfied how it was caused.
26 Bruising found on both sides of the deceased's head is equivocal. While it is highly likely that it was caused by the accused kicking the deceased in the head, the possibility that the bruising was caused by the deceased falling to the ground cannot be excluded. I am satisfied that the accused did kick or try to kick the deceased's head. This is relevant to his intention. Whether he was successful is of little moment.
The children of the marriage
27 The four children all gave evidence. As each had been declared to be a special witness by order of Hall J, their evidence was pre-recorded and played at the trial. In view of the common second name I mean no disrespect in using only their first names, for ease of expression. Youcef who is now 18, and gave evidence in chief by way of a pre-recorded statement, and was then cross-examined. The older children, Wissam and Malak and Dheya now 11, gave evidence and were cross-examined.
28 For the most part, their evidence about factual matters was not in issue and the cross-examination principally explored aspects of the accused's behaviour in the weeks prior to the killing to give background and context to the psychiatric evidence.
29 Although credibility is not a predominant issue except in a couple of areas, I was very favourably impressed by the evidence and recall of each of the witnesses, bearing in mind their age. Youcef Chiha was 16 at the time of the killing and gave a coherent account of the events and of the background of his parents' relationship so far as he could observe.
30 Malak was a thoughtful young woman whose evidence I also accept completely. In particular, I accept her evidence and the evidence of Wissam that in the earlier incident of 23 March 2013 the accused was armed with a knife.
31 Wissam is a highly intelligent woman studying a PHD in neuroscience. Notwithstanding the traumatic nature of the event and an understandable reaction to the actions of their father in killing their mother, I found her evidence and those of the others to be balanced and fair accounts of the family dynamics. Her observations in particular had the hallmark of maturity and, of course, a longer period of observation.
32 Dheya's evidence is of limited assistance because he was only in a position to observe a little of the fatal interaction as he remained in his room until Mr Willmouth led him to safety. His evidence about his parents' relationship is sparse. A more complete description, as might be expected, comes from his older siblings.
33 Their evidence conflicts with the account given by the accused in the EROI. For example, he denies he had a knife in the 23 March incident. I am satisfied that he did have a knife and that he hid it before police arrived.
34 The accused in his EROI and interviews with Dr Skerritt and Dr Brett denied any prior physical violence as opposed to verbal aggression against his wife. On the evidence of his children however, I find that he was physically violent to the deceased at various times during the marriage.
Family background
35 Wissam, who is now nearly 25, was born in Algeria, as was Malak and Youcef. Dheya was born in Australia. In 1997 when Wissam was about 7, the accused picked up a map and said he was going to Australia. The accused spent about three years working in Australia while the family remained in Algeria. During his time in Australia he was severely injured in an accident in 1999. He spent some time recovering before returning to Algeria. The family finally left Algeria when Wissam was about 11.
36 At the time when the accused left for Australia, Wissam's parents' relationship was good, they seemed very happy, showing affection to each other. Before he left, the three of them had a fantastic family holiday in Algeria. The family came to Australia in 2002 and on the way had a holiday in Malaysia. Wissam noted that her father was always supportive of her studies:
He pushed me to excel in my studies, academically and athletically (ts 120).
37 He wanted her to flourish and do as well as she could. He also supported the deceased with her studying English and child development.
38 Wissam described the relationship between her parents as 'good times and there was mostly bad times … There was physical abuse, verbal abuse, emotional and psychological abuse' (ts 104) always by her father and his family towards her mother. The physical abuse took the form of punching, pulling by the hair, shoving and slapping. The accused in his EROI denied that he was ever physically violent to the deceased though he conceded to verbal aggression. I am satisfied that he was violent on occasions as described by Wissam.
39 There was one big fight between the accused and deceased before they left for Australia over a pilgrimage the accused had given to his grandmother. There was some degree of separation and change of residence in Algeria.
40 However, once the family arrived in Australia, the relationship was pleasant and affectionate. The family first lived in Maylands which Wissam described:
It was pleasant and affectionate. It was a wonderful time (ts 106).
- Dheya was born in 2003. During this time the accused was working, although the deceased was not.
41 Things changed when a Tunisian friend came to live with the family. Tensions rose and the accused went out gambling with the friend and lost most of their savings. The family moved to Rivervale and then to Langford. The tension turned into aggression which was mostly verbal, though one incident was physical which involved the accused choking and shoving the deceased, pulling her hair and ripping her necklace off her neck. Wissam was holding a phone and said that if he did not let go, she was going to call the police.
42 From Langford the family moved to Seville Grove while they built a house at 3 Arklow Glen, Canning Vale, the scene of the killing. The plan of the house is exhibit B.
43 The relationship between the accused and the deceased at Canning Vale, as described by Wissam, was 'getting worse and worse, there was a lot of tension, a lot of aggression' (ts 108), which was always verbal by the accused to the deceased. The accused was unemployed at this time. He had been working at BGC but had sustained an injury to his knee. He received a compensation payout but did not work for about a year. During this time, he was very angry, 'controlling. He was - he was aggressive. We were - we were all walking on eggshells around him' (ts 109).
44 The deceased started working in about May 2005 in a childcare centre.
45 Wissam was married in 2012 and after her honeymoon lived with her husband in Carlisle, but would visit the Canning Vale house almost daily from late 2012, that is, in the six months or so prior to the killing. She described the relationship between her parents:
It was a very bad period between them. My dad was very angry, he was very aggressive, he was - he was very angry, just full of anger and rage (ts 110).
46 This expressed itself in the accused's controlling and verbal abuse. He was employed as a casual worker at One Steel Recycling. He made the deceased stop work.
47 In cross-examination Youcef agreed that in the two week period leading up to the killing the accused's behaviour had changed a bit. He was always aggressive but not to the point of murder:
What I'm suggesting to you is that your father was never physically aggressive towards your mother until that day of the time when she was stabbed---Yes. But he was always - he was always - he was always threatening her.
Do you mean verbally---Yes.
And do you mean like they were shouting and arguing---Yes.
And was that usually over finance and money---Yeah, most of the time (ts 76 - 77).
The accused's behaviour generally
48 Wissam did not agree that the accused's behaviour had changed drastically in the two or three months leading to death:
Well, it's always - well, it's been for as long as I could remember and back to when I was five years old; there were dark times and then there were good times.
… But the period just before my mum's death - and it wasn't just the three months, it was - it was I would say close to 12 months that it was - it was just getting worse and worse (ts 121).
49 In the 12-month period before the killing, the accused's behaviour was particularly difficult.
50 She noted that her father became concerned about the finances and building of a new house and the financial stresses caused a lot of arguments.
51 Malak described her parents' relationship in early 2013:
At the time leading to my mother's death their relationship had gone downhill. It was very horrible … it became very violent, they constantly fighting (ts 84).
52 She was around 12 when she first saw the accused hit the deceased. In late 2012, she noticed a change in their relationship:
He became very suspicious of everything that was going on in the house. He became very controlling of my mother and the fighting increased (ts 84).
- There was physical fighting by the accused towards the deceased, and throwing whatever was near him, breaking glass and cups, to punching, hitting and pulling her hair.
53 In cross-examination, Malak agreed that in the couple of weeks leading to the killing, the accused's behaviour changed quite dramatically. He did smoke a lot, but she did not notice any significant change in smoking.
54 The accused generally did not drink on a daily basis. He had stopped praying in the couple of weeks prior to the killing. In that couple of weeks he had also stopped showering and his personal hygiene had deteriorated.
55 The accused and the deceased were arguing about money, particularly money owed to Rahim and they had argued about money from the sale of the Suzuki, which the accused was planning to use to repay Rahim. He was quite angry about that. The accused became more suspicious of people. In his better periods, he was normal; he would work, come home, eat and sleep. He was fine to Malak and to her two brothers.
56 In the two weeks prior to the killing, Malak agreed that the accused was down or flat in his general demeanour. The accused gave contradictory answers to Malak as to why he did not go to work on the morning of the killing. Initially he told her that he did not wake up in time and later he said his windshields were not working and it was raining, even though it was not raining on that day.
57 Youcef said that the accused had stopped praying five times a day a little more than two weeks before the killing and that this was quite a marked difference in his behaviour. The accused had stopped having a shower every day. As to his suspicions:
Sure. If I can try and put it in sort of - in a broad - in a colloquial way like this - that he became very - his level of suspicion or his degree of suspicion heightened. He became a lot more suspicious of people in that two week period leading up to this event---No.
Would you agree that his level of suspicion heightened in the few days, the weekend prior to the Monday---A little bit.
Yes. What do you mean by that---A little bit.
What did you observe---He - how do I say this - just like he - the same thing I just said, his - just his trust issues were increasing. But he's always had trust issues, like, he's never put confidence in himself or others. If that makes sense.
When you say trust issues, you've spent most if not all of your life living in Perth, haven't you---Yes, I have.
Okay. Would you consider yourself to be a person with, sort of, western values and western outlook---Yes.
Okay. Do you - would you accept that your father still retains a level of what I might call Muslim tradition---What do you mean by Muslim tradition?
Okay. All right. He's a lot stricter than perhaps might be the father of your western friends, your Australian friends---No, because a Muslim man does not kill his wife.
Okay. All right. I can understand your anger---A Muslim tradition is not murder, it's actually peace (ts 79).
58 Wissam denied that the accused's behaviour in the 12 months prior to the killing had been unusual compared to earlier times because every time he would get angry he would break things and destroy things.
59 She described the behaviour of the accused, especially within the three-week period before the killing:
It was any added stimulus in the - we had to be invisible. We had to not exist to avoid getting in trouble. Or your dad would go into a rage?---Yes (ts 127).
60 He would be verbally and physically aggressive, though mostly verbal and breaking crockery, and turning the dining table upside down.
61 It was put to Wissam that it was fairly unusual behaviour that the cupboards had been bare and that the accused had thrown out all the food in the fridge, freezer and cupboards. She denied that it was unusual and that he had done it before.
62 Wissam was asked about the accused's hygiene:
Did you notice anything about his own personal hygiene in those couple of months leading up to your mum's - mum's death---Yes. He wasn't taking showers as he would - as often as he would. But this is not unusual.
Would you agree with me that in that two to three month period before your mum's death, your dad basically didn't really care how he looked or smelt---I - he did - he very much cared about how he looked and smelt. And it wasn't always that he didn't look after himself. There are times when he was immaculate.
In that two to three month period before your mum died, is that what you're talking about---I'm talking about always. But yes, the - as you've mentioned specifically, in those few months (ts 132).
63 She agreed it was an unusual thing for the accused to come home early from work or miss work for no reason.
The incident on 23 March 2013
64 The sale of a motor vehicle was a trigger for the accused's anger. The deceased owned a Suzuki Grand Vitara which the accused made her sell. He wanted the money to pay off a debt incurred to Rahim. However, the deceased entrusted the money to Wissam and her husband to find another car which they did. The accused's reaction to that was:
He was very aggressive, he was very violent and it resulted in the first time the police were called (ts 110).
65 The accused's anger at the deceased's failure to pay him the proceeds of sale clearly comes through his answers in the EROI (exhibit J1).
66 In the month or so before the killing:
[M]y dad was angry, he was aggressive and he was violent (ts 110).
67 Wissam was asked whether it was different in any way to how he had previously behaved:
No, but it was longer. It lasted a lot longer (ts 111).
68 When another car was bought, and the money not given to the accused, the accused became particularly angry:
My father's behaviour had become extreme. Daily there was breaking crockery and whatever else he could get his hands on (ts 124).
69 She used the word 'extreme' in the sense that there was no pacifying him:
[H]e would shout at anyone and everyone and he would break things if he didn't get his way or if anyone disagreed with him (ts 124).
70 Wissam, however, denied that this behaviour was unusual:
Absolutely not. I disagree there because he broke many things before. He - this is actually quite common behaviour in Algeria, breaking things (ts 124).
71 Wissam was at her home on the night of the incident, 23 March 2013, but she visited the Canning Vale house and observed a verbal argument:
My dad was leaning against the kitchen bench top. He was drinking a cup of coffee and he then threw that coffee at my mum, but it just skid past her, it just went past her. I was in front of her, so it went past me and past her and hit the wall behind us (ts 111).
…
It escalated again. That's when he went to the kitchen to bring the knife.
What I suggest to you is that he didn't have a knife on that earlier occasion---Okay.
Do you agree - do you agree or disagree---I disagree.
And what I suggest is that all your father did is he pushed your mother, put his hands on her chest and pushed her in the hallway---I strongly disagree. He slapped her twice, he poked her eye with his thumb, he had the knife which he then hid in the master bedroom.
Would you agree this was about two or three weeks before your mother died---Yes.
I suggest that he never punched her in the face or pulled her hair on that occasion---He didn't pull - I - he did pull her hair, yes. I don't think he punched her, he slapped her.
All right. I suggest to you he didn't do that, and you would counter back and say he did---Sorry?
All right. What I'm suggesting you, that he didn't slap her in the face, what do you say to that---Well, I don't think you were there. I was there.
Right. So you disagree with what I'm saying---I disagree with what you're saying, yes (ts 130).
- I accept her evidence.
72 Wissam described how his behaviour then changed pretending to pacify the situation so that Wissam and her husband left the house, intending to return to their home, but only got as far as Carousel when a phone call caused them to return. On the way back to Canning Vale, Wissam made a phone call to police. She arrived about 10 minutes before the police and she observed:
There was chaos at the front of the house, between my mum and my dad. My dad was trying to pull my mum away from the front. She was trying to, you know, to get away from him. He then slapped her a couple of times in front of me and he was trying to poke her eye out with his thumb (ts 112).
73 Wissam intervened and the accused went to the kitchen. On his return:
[H]is eyes were angry. His face was angry. But he was - but in his mouth he was saying that it's okay, it's okay, it's fine, but … he had a knife tucked behind the back of his pants (ts 113).
74 Malak saw a kitchen knife, chopping knife, held between his jeans and his shirt. He pulled it out saying to her to 'mind her own business and that it was between them two'.
75 In cross-examination, it was suggested that there was no knife produced by the accused. Malak disagreed. She knew the police did not find the knife because the accused had hidden it. She denied making that up. Although she did not see the accused hide the knife, it was found afterwards.
76 The family protested to him and the police arrived. Sergeant Kiddie and Constable Gravenall attended from Canning Vale Police Station. On arrival they observed the accused out the front speaking calmly with his son-in-law, Wissam's husband. The accused said he had had a bad day. In front of the house there were signs of disturbance including glass shards. Constable Kiddie spoke to the family while the accused was in the company of Constable Gravenall. When Sergeant Kiddie returned he said the accused was able to communicate easily with a slight accent, he appeared emotional. He spoke about a debt, needed to pay for the house and that he was working very hard. He appeared tired.
77 Constable Gravenall spoke with the accused who said that he basically would not go into details. He said he had had a bad day (ts 297). His demeanour was quite upset and emotional but by the time that the 72 hour order was served on him, about an hour and a half later, the accused had calmed down substantially. His speaking voice was a lot quieter and he told Constable Gravenall he was not angry any more.
78 Constable Gravenall could not recall the accused saying that he wanted the police to take him away. Police issued a notice requiring the accused to remove himself for 72 hours. He left and the police left shortly after but saw him on the side of Nicholson Road where they spoke to him again.
79 Wissam and her husband agreed that the accused could stay at their house and the accused followed in his car for a short time before the vehicle stopped and the accused indicated that they should return to the Canning Vale house. The police were just leaving and they saw the accused and spoke to him, following which he returned to Wissam's house where he had a coffee but he then declined to stay. Wissam went back to Canning Vale where she spent the night with her mother. In the morning she saw the accused parked in the driveway asleep.
80 The accused stayed with Wissam that day but insisted that he had to go back to the house:
[I]t was his house and that no one can tell him not to go back there (ts 115).
81 I am satisfied that the accused had a knife which he secreted on his body and which he later hid from police. This is a significant finding in evaluating the killing and the accused's intention then.
Mr Warren Polini
82 Mr Polini is a neighbour who lives opposite the Chiha family. He befriended the family and at one point when the Chihas were short of money he paid for the boys' football season and equipment, something the accused graciously accepted. He spoke to the accused about the argument over the car:
A couple of days or so after he was saying that he was upset about it and that the police had put a 72-hour - he wasn't allowed to be back at the house for 72 hours - can't (indistinct) and he was shitty that he'd lost - he thought he'd been pushed out of his own house and that the family were turning against him.
…
He was saying that the family was becoming too Westernised for his liking. He was losing control over what the family was doing and that he had felt he'd lost respect from the family and he wasn't happy about it.
All right. And how did you tell he wasn't happy about it---?--- His aggression. He had told me that he'd also set up a separate bank account, that he wasn't going to share any money with the family from that day on. There was also - he was going to save up the money and move back to Algeria. Yeah, lots of different bits and pieces, you know, sort of through a conversation of half an hour.
COGIN, MR: All right---To the fact---
Now------To the fact that he even went back and showed me scars on his body that he had a car accident when he was working to make, save money for the family and, you know, it was quite a personal conversation, I suppose you could speak, but he was angry (ts 180 - 181).
83 In cross-examination he agreed that the accused was a polite, friendly, conversational gentleman towards Mr Polini although he had his angry moments when he was fired from work and bits and pieces but always friendly to talk to.
84 He definitely supported the family in their education as noted in Wissam's evidence earlier.
85 Mr Polini explained that the Chiha family never had air-conditioning in the home so the two front windows would be open and generally the front door was open to let the sea breeze to cool the house:
Now, there was always yelling and abuse, verbal anger. Now, I couldn't see what was going on but I could hear Jamal yelling inside the house because I'm only 20 metres away, literally - literally 20 metres away and you could hear it.
All right. Now, would you agree with me, Mr Polini, that this yelling and - and - and shouting from inside number 3 Arklow Glen became far more regular and far more vociferous, if you will, in the weeks and months leading up to 29 April 2013---No, I wouldn't say that. It was quite regular.
All right. But as you say, you were across the road so you weren't aware of how arguments would - would begin and you weren't aware of the circumstances, correct---That's right (ts 195).
86 As to the accused's hygiene he said:
He wasn't a - a - a dirty man, an - an unkempt man---He was - put it - during the work week, he was always in scruffy dress other than on like a - a - I mean, I suppose it would be a Sunday when he'd have his Arabic dress on (ts 197).
Specific threats made by the accused
87 In the three weeks leading to the killing, the accused made a number of threats:
They were mixed threats, that he was going to kill the whole family in the car by driving up a tree and sometimes it was just killing himself and my mum (ts 116).
88 On one occasion at the front of the house at Canning Vale, the accused gave Wissam a sum of about $5,000 mixed Euros and US dollars and said that she should use this to look after the kids.
The events of 29 April 2013
89 During the day, the deceased and Youcef came to Wissam's house about 11.00 am. About 5.00 pm Malak rang and shortly after the deceased and Youcef left to return home.
90 Wissam received text messages from Malak, a phone call from her mother and later a phone call from Youcef, as a result of which she and her husband went to Canning Vale, calling the police on the way, although they were present by the time she arrived. In fact the police responded very quickly.
91 Malak, the accused and Dheya had dinner together. Afterwards, Malak went to Wissam's former room where her mother was, joined by Youcef and Dheya. While they were talking, the accused came in and told his children to go to bed. Youcef described how he and his mother had spent the day at Wissam's house and when they drove home and into the driveway they found the accused at the front door, standing there smoking. He was staring. He told Youcef (who was 16) to go to bed around 7.30. Youcef described the accused as trying to enforce his instruction to Youcef to go to sleep. Malak sent the two boys off and told the deceased to join her in her bedroom where there was a mattress on the ground. The accused went to a liquor store on two occasions, stayed in his room or in his car. During this time he wrote three letters.
'It's the end of Papa' - The suicide letters
92 During the period after the accused had sent his children to their bedrooms and before he came to Malak's room to speak with the deceased, the accused wrote letters to his children. These were subsequently recovered by police and put to the accused in the record of interview (exhibit J). One note found in the car is written on an envelope timed at 8.24 pm Monday, 28 April 2013 addressed to Malak, Yousef and Dheya:
It's the end of papa. I love my kids? Wissam and Aumair please look after … Yousef. 1. Discipline. 2. Education. 3. Happiness.
Papa. I love you.
93 The second is written to Aumair:
No family. No father or mother or cousin or aunty. We have you Aumair. I love you. And do you know me. Very good. Please look after these kids.
94 The third letter is timed at 9.13 pm on Monday:
I love you. Papa. Do I tell you in this night or not. Good. But I want very good. High education. 1. Yousef. 2. Dheya. So you have just to look after them and give good respect to yourself all the time. Pray [Prier] for Jamal and Souad.
- And apparently signed by the accused following which the note reads:
If you or Wissam understand this I'm not good but I'm very very very very very very very good. Papa Jamal. I love you kids Malak, Youcef, Dheya. Wissam and Aumair
96 The accused advanced explanations for each of these letters in the EROI trying to minimise their importance or when they were written. I do not accept his repeated explanations for the letters which make little sense. Rather, in the context of the events of 29 April 2013 they are a powerful indication of a man planning to kill himself and probably his wife because the arrangements for the children are entrusted to his son-in-law. They must have been written before the killing as there was no opportunity afterwards because the accused was constantly in the company of others.
97 The accused was not in the state of automatism when he wrote these letters. He clearly describes in the EROI why he wrote them even though I do not accept his explanation.
The events surrounding the killing
98 While Malak was texting her sister, and her mother was on the mattress reading a book, the accused came in demanding to talk to the deceased. She followed him out. Malak followed with Youcef. The deceased was in front of Malak and the accused was holding her wrist with his hand. He had a knife in his other hand, resembling a steak knife:
[W]hen you saw that did you say anything to him---I told him, 'Think about what you're doing and be smart'.
Did he say anything to you in reply---He told me, 'Go back to your room. It's none of your business'.
And what's the next thing that you saw him do---Then I saw him stab - not stab my mum but using the blade, he cut her.
All right. Was anyone else in the immediate vicinity of your mum and dad at that stage---My brother Youcef.
Did you see what Youcef was doing---Well, after he - after he pulled the knife and cut her, we all got involved and me, Youcef and my mum were fighting him off.
All right. You said that you saw your dad cut your mum. With what---A knife.
And whereabouts on her body did you see him cut her---The first - the first cut that I saw was in her neck, her side neck region.
All right---Between her jaw line - her jaw line and her neck. And the second was in the back of her chest, in the back of her - in the back.
Okay. So front part of her body or back part of her body---Her - the back part of her body.
And at that stage did you do something with a - a vase---I got - I got a vase that was next to the entrance of the house and tried breaking it on him.
And did you succeed---No, I didn't.
Did you see anything else happen with that vase---Youcef and my father continued fighting into the theatre and he - my father got the vase and broke it on Youcef.
Whilst that was happening what was happening with your mother---My mother collapsed on the floor.
And whereabouts in the house---At the entrance of the house.
And did you see the knife---The knife was next to the door. (ts 88 - 89).
99 Malak ran to Mr Polini's home and he came running to help with Mr Willmouth. After seeking help, Malak telephoned the ambulance and police. The accused saw the phone, kicked Malak in the face and the phone fell.
100 There was some challenge to Malak's evidence about being kicked in the face because it was not in her original police statement, though it was in her second statement. I am satisfied that the accused did kick her in the face while she was trying to call for help.
101 Youcef described the incident. The accused had come into his room a few times, Youcef thought to double check if he was asleep but shortly after 9 o'clock he heard Malak say, 'Put it down'. Youcef ran and:
I saw him holding my mum on the wrist and my sister on the side telling him - and I didn't realise what he was holding till I came a lot closer, in between my mum and dad. And then I saw him holding a knife behind his wrist, hiding it. … [A]nd then he told me to go back to bed. And then he's like -- he told 'I'm just going to talk to her'. And I'm like, 'This is not a talk if you have a knife, at least put the knife down'. Then I think - and then it happened way too fast. He just raised his -- like, got his arm and then went over my shoulders and then stabbed her (Interview page 2 - 3).
102 Youcef then described the fight he had with the accused until the neighbours came. He described how the accused smashed the glass vase onto him.
103 On the night of the killing Mr Polini had come home and showered then he and his partner had dinner with Mr Andrew Willmouth, a friend who had been invited. They were watching television when a noise was heard. Mr Polini went to the front door and saw Malak running for assistance. He went to the house and saw the deceased lying close to the front door face up. The accused and Youcef were in a fight. The accused was trying to kick the mother, Youcef was trying to fight him off (ts 183).
104 Mr Polini separated the two and turned back to the deceased when:
[The accused] come back through into the prayer room or the first room on the right-hand side.
…
[The accused] had a - was a ball - glass-balled vase
…
And at that stage, he was in full flight and smashed it over Youcef (ts 183).
105 Mr Polini broke up the fight with the assistance of Mr Willmouth and physically removed the accused and sat him down on the smoking stool where the accused would have a cigarette outside at night. The accused was in an aggressive sort of mood, and yelling about the 'fuckin Australian law'.
106 Once Mr Polini had led the accused out of the house to his smoking stool he said that the accused was aggressively ranting about the law and things like that:
But he didn't really calm down, did he, because he was ranting. Whether or not it was about Australian law, that's not really my interest, Mr Polini. Just the fact that he was sitting and ranting. Do you agree or disagree with me---I disagree cos he had calmed down. He did rant. He calmed down. That was when Nathan, the neighbour, had - was in his boxer shorts, and he was basically - not saying he was there for backup, but he was there, and when Jamal had settled, Nathan has then gone back home to put some clothes on, because he was standing in his boxer shorts. That was when he sprung up again and done the old Harry Bolt round the house (ts 200).
107 Mr Polini was asked about the accused ranting outside:
Well, "ranting" is one of those words. I rant if things don't go right for me and I'm on a job. Well, I drop the odd swear word and have a little tanty-ranty, whatever you want to call it, myself, and that's just what you do. What happened that night - - -
What was Mr Chiha doing out the front of the house when he was on the stool---Smoking.
No, no, when - when you took him out the front after you'd removed him from the house---Defaming the Aussie law, women and their rights that they have in this country, just - it wasn't like a - - -
Tone of voice---In a - in an angry voice. It wasn't like a gibberish ranting, you couldn't understand what he was saying. It was just chucking the shits, basically.
Was it loud, quiet---Medium range. Wasn't - it wasn't as loud as what I've heard him scream when he's been in the house and I'm across the road and I could hear it, put it that way. It was, yeah, medium sort of - type of medium range. It wasn't a berserk - as - you know, when you - you watch the news and you see these guys on ice and they're going - that's what I call a rant, when they're instoppable(?) - unstoppable to - and takes 1,800 police to try and arrest the man. That's a rant (ts 204).
108 Mr Polini said that the accused had smashed his phone on the drive, something confirmed by Mr Willmouth although he did not know it was a phone.
109 In relation to anger:
You've never seen Mr Chiha, Jamal, so angry, so aggressive, before in the three or four years that you'd known him, correct---I have heard the anger. I haven't seen it through the open windows and front door. No, I have - I haven't seen it with my - I've seen anger where he's been beating his chest in my garage while he's talking to me, but, you know--- (ts 201).
…
I've seen him aggressive and angry when he's been in my garage with me and he's been beating his chest with one hand saying whatever the words he was saying about he - he's a man and he's lost respect from his family (ts 202).
110 Mr Polini made the point that on this night the accused had no aggression towards Mr Polini whatever. He only had aggression to the deceased and Youcef. This tends to suggest that the accused was focused in his endeavours but bore no malice to other persons other than the deceased and Youcef.
111 Although the point was made in cross-examination that neither Mr Polini nor his partner ever reported the earlier arguments they had heard to the police, my impression of Mr Polini's evidence and some comments he made is that he regretted not reporting them. I have no reason to doubt his evidence as to the shouting that he overheard from the Chiha house and that it was, as he says, 'aggressive'. There are many reasons why a person might not call the police but the fact that he did not does not lessen the gravity of the aggression he over heard.
Mr Andrew Willmouth
112 Although Mr Willmouth was aware of the accused he had not had a conversation with him, more of a passing hello. His evidence confirmed Mr Polini's account of their intervention that night. He said:
When you escorted Jamal outside, what did - how did you do that---With no force at all. Basically, as Warren and I sort of probably contained the situation, there was no aggression at all shown by Jamal. He came out quite willingly and openly, and there was absolutely no aggression shown towards myself or Warren (ts 209).
113 When the accused had been removed to the back room:
He became very cooperative with us again as previous. Once we had him in that position, he didn't put up any fight towards Warren or myself. He didn't - he was saying something. I don't recall what he was saying. It was more muttering or it was - I don't remember what it actually was (ts 214).
114 Mr Willmouth then led Dheya from the house to safety. He returned to let the accused know his son was being looked after. The accused said he was a good man.
Mr Nathan King
115 Mr King lived a little up the road from the Chiha house and was asleep in the back of his house because he had an early start at work the following morning when he heard a scream which caused him to run out the front of the house. He observed Mr Polini and Mr Willmouth holding the accused and bringing him outside and Youcef went back inside:
After Youcef went back inside, we've walked him over to the front of the garage, sat him down, and then he started talking about the laws of Australia not being - protects the woman (ts 224).
116 Mr King returned home to get some clothes on because he was only in his boxer shorts.
117 He was asked about his observations of the accused:
And were you able to - to look into his eyes at this point, Mr King---Briefly, yeah.
Did he appear wild, frenzied, uncontrolled---No.
Were his eyes glassed over---Tell me what you mean by glassed over.
Almost that he didn't - he wasn't really looking at a person the way I'm looking at you now or you're looking at me now. He appeared somewhat glazed or somewhat disassociated from his current surroundings, to your perception?---I didn't really pay attention to his eyes, really (ts 228 - 229).
118 While Mr King was gone, the accused jumped up, went towards the front door 'hip and shouldered the door'. Mr Polini tried to restrain him and calm him down:
And then he's sprung up and he's sprinted around the front of the house, leapt over the side fence and within seconds, he was back into the house. And I've - I've run back around, banged on the front door, "Let me in. Let me in. He's coming around the back". By the time I'd got into the house, he's had a - a bit of construction pine and he's flying through here towards Youcef again. His anger was only towards Youcef. He was - at - not at any stage did he attack myself or Andrew and the mother, he was, you know, kicking her if - when he got close enough, he was kicking her in the head a - a couple of times (ts 185).
119 Again the accused was restrained, this time in the back room until the police arrived. To Mr Polini's recollection the accused put his arms up, saying 'Take me, I'm a bad man. Take me, I'm a bad man' (ts 185).
120 The neighbours were restraining the accused, trying to get a hold of him but he fought them off, came back and hit the deceased some more while she was on the floor. He had a wooden plank which he threw towards the deceased.
The EROI (exhibit J1)
121 During the course of the lengthy EROI the accused consistently denied possessing a knife at relevant times or killing his wife even though at times he appeared to accept responsibility. In the same manner he denied injuring Yousef.
122 When an EROI is admitted into evidence all of its contents are admissible not simply those which are adverse to the accused. The evidence contained is available generally. An EROI is not made on oath and account can be taken of this fact. In that sense it is similar to the long discarded 'statement from the dock'. But like other evidence or witnesses' accounts, a court is able to give what weight it thinks proper to the contents. It is not bound to accept or accept uncritically every statement made and a court may accept some parts of an EROI while rejecting other parts of an EROI. The fact that the accused has chosen to voluntarily make an EROI does not, of course, suggest that he has assumed a burden of proving his innocence.
123 During part of the EROI the accused became emotional, at one point crying. At another point he sighed, sobbed and put his head on the table. Interestingly, on one occasion he beat his breast in a manner similar to that described by Mr Polini.
124 The EROI is at times a little difficult to follow. The accused speaks good English with an accent but due probably to emotion at times speaks quickly and at a pitch and rate that makes occasional words difficult to understand. He tended to wander off the topic of the question at times. I attributed this to his emotional arousal and fixation on proceeds of sale of the car and other financial issues, not on dishonesty. I had available to me a transcript of the interview which I used as an aid in listening to the EROI and was on occasion able to pick up words which the transcript had marked as 'indistinct'. It is of course the EROI itself which is the evidence not the transcript.
125 When taken to the events, his first descriptions of the killing (page 13 of the first DVD):
I don't understand how she died.
126 Page 15:
She start crying. My kids, they come in. We start fighting. I don't know. I don't have knife. I don't have nothing. I don't have knife. She start the problem for nothing, for nothing. Knife, knife, knife, knife, knife. Where is knife. No knife. I don't know. If I did that I don't know. If she killed me I don't know. [Indistinct] We are fighting. We are fight because it's not a fight until someone dies. It's not fight … someone dies.
So what do you remember next? I remember all, all, all.
…
Not, not fight to kill my wife. She love me, I love her, I love kids but just only this (indistinct) my wife, she give me some (indistinct) she never give me (indistinct) she said to me, 'I don't trust you. I don't give my jewellery. I don't need to drive this car.'
127 The accused then repeated what he had said about the car and money problems. He became highly emotional and broke into tears when talking about the earlier event and their disruption, describing: 'There's no food. No breakfast'. And he had to go out and ask some people, 'They give me breakfast' he broke down and sobbed and wailed.
128 Throughout the EROI as I have said the accused constantly denied having a knife or killing the deceased, often getting emotional at such a point. For example, in the second DVD page 4:
This is our planning. My wife, she passed away. She [indistinct] my own daughter. She [indistinct] I'm not kill her.
129 At which point the accused broke down, put his head on the interview table, sobbed and sighed. He had been talking about travelling with his wife.
130 At page 11 on the second DVD the accused advanced a reason why he could not have killed the deceased with a knife:
I don't. I don't. I don't kill her. I don't kill her. I don't kill her my friend. I don't kill her. I don't have knife. I don't have knife. I told you I'm sit outside. I come. My wife come [indistinct] start screaming [indistinct]. I don't know from here. Maybe you see my my clothes it's all cut.
So how did those cuts happen? I don't know. I don't have knife. If I have knife the police they come, they find the knife in my hand.
Not necessarily. Are you not telling us the most important part of this? I tell you the most important. I'm not lying. I, I, me if [indistinct] I finish with you I kill myself because I don't want this life, it's gone, my wife gone.
Why would you want to kill yourself? Yes, nothing, nothing left, nothing left.
131 During the course of the EROI the interviewer put certain facts to the accused for his comment. These were obviously facts obtained from statements of other people and included questions about the destruction of photographs and questions about petrol in containers. Where there is no evidence in this trial about such matters (and I have used those as examples) I have disregarded those portions of the EROI. The accused made no admissions about them.
132 I have also ignored some of the interviewer's comments. It is the accused's answers that are relevant.
133 Despite the accused's constant and emotional denial that he did not have a knife and did not stab the deceased, at trial the accused made those express admissions. I am not prepared to treat his statements in the EROI as lies indicating a consciousness of guilt. Nor does the prosecution invite me to. Mr Cogin points out appropriately that Dr Brett has advanced an explanation of possible amnesia, that it may be a defensive mechanism to shield a person from the impact of their crimes. Necessarily his denial of the killing and the use of a knife in the EROI must be completely set aside in view of the admissions. I set aside his denials of physical aggression to the deceased at earlier points of their marriage because I am satisfied that the evidence of Wissam and Malak is true. But I am satisfied as to the actions of the accused from all of the objective evidence including the admissions and do not use the EROI in my reasoning towards guilt.
134 Rather, the significance of the EROI and the denial is in the use that might be made of the EROI in ascertaining the accused's mental state at the time of the killing. In other words, whether he was, on the balance of probabilities, of unsound mind at the time he did the acts that would otherwise attract criminal responsibility.
Insanity
135 The definition of a mental impairment includes 'mental illness' which is defined as an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary but, does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli: Criminal Code s 1.
136 Criminal liability is excused for insanity: Criminal Code s 27:
(1) A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(2) A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
137 If at a trial a question arises whether the accused was not criminally responsible for an act or omission on account of unsoundness of mind, if the court finds the accused not guilty of the charge on account of unsoundness of mind it must return and record a special verdict to that effect: Criminal Procedure Act s 113, s 146.
138 In Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 the High Court considered sections of the Criminal Code (Tas) similar to the Code s 23 and 27. After dealing with R v Falconer (1990) 171 CLR 30 the court continued:
[I]f the only evidence tendered to raise the question of voluntariness of the incriminated act is evidence of a mental abnormality amounting to a 'mental disease' under s 16 the admissibility of the evidence does not depend on its relevance to the issue of voluntariness but on its relevance to the issue of insanity. And, if there be evidence of mental disease but the evidence is incapable of proving that the mental disease produced any of the consequences described by paras (a) and (b) of s 16(1), that evidence is both insufficient to establish insanity and irrelevant to the issue of voluntariness.
Mental disease, by itself, is no excuse for the doing of an incriminated act but s 16 provides an excuse (not criminally responsible) when, and only when, the consequence and measure of the mental disease are as prescribed by paras (a) and (b) of s 16(1). It would destroy that limitation on the defence to allow evidence of mental disease to destroy the inference that an act is willed when it is done by a person of sound mind. If it were otherwise, the practical consequence of destroying that inference would be the outright acquittal of an offender although that offender, if he was suffering to any extent from a mental disease, was not suffering to the extent prescribed by paras (a) and (b) of s 16(1). That is a sound enough reason to reject evidence of mental disease in determining the issue of the voluntariness of an act done by a person presumed to be of sound mind. But there is no such reason for excluding evidence of mental disease in determining whether an act done by a person who is criminally responsible for the act was done with a specific intent. … What a person who is criminally responsible for his act intended when he did the act is an issue which must be determined by the jury as an inference from all the evidence which is relevant to that issue and no presumption of law exists to relieve the jury of that duty [513].
139 The court said:
In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved (the latter by reference to either s 13 or s 16) before there is any issue of the specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused's mental condition at the time when the incriminated act was done fell short of insanity under s 16 [517].
140 In Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 the plurality view was expressed by Kennedy J:
In the latter case of Garrett v R [1999] WASCA 169, a majority of this Court held that the Court was bound by the views of the High Court in Hawkins v R and that, accordingly, the issue of insanity falls to be determined before the issue of intent. In my view, the opinion expressed in the joint judgment of five members of the High Court clearly represented its considered opinion and, it follows, it must be accepted and applied. In the present case, the appellant admitted the killing and the next question was whether he was criminally responsible for the killing, having regard to the terms of s 27 of the Act. Only if that question was answered adversely to the appellant did the next question, what was the appellant's intention at the material time, require consideration. The substitution in 1966 of the new s 653, requiring a special verdict as to the offence of which the accused was acquitted cannot, in my opinion, require a different conclusion, although it was no doubt incorporated in the Code on the basis of the decision in Perkins v R [25].
141 In Woodbridge v The Queen [2010] NSWCCA 185; (2010) 208 A Crim R 503:
In R v Radford (1985) 42 SASR 266 at 276 King CJ explained the difference between sane automatism and insane automatism as follows:
'The significant distinction is between the reaction of an unsound mind to its own delusions or to external stimuli on the one hand and the reaction of a sound mind to external stimuli, including stress producing factors, on the other hand'.
This statement was said by Hunt J in R v Youssef (1990) 50 A Crim R 1 at 5 to be the clearest statement of the distinction. King CJ’s discussion of the distinction was approved in R v Falconer (1990) 171 CLR 30 at 41–42 48–49 60 and 76 and 85.
In Falconer Gaudron J said (at 85):
'In general terms, a recurring state which involves some abnormality will indicate a mind that is diseased or infirm, but the fundamental distinction is necessarily between those mental states which, although resulting in abnormal behaviour, are or may be experienced by normal persons (as, for example and relevant to the issue of involuntariness, a state of mind resulting from a blow to the head) and those which are never experienced by or encountered in normal persons … And in Radford, King CJ (75) distinguished between "an underlying pathological infirmity of the mind, … which can be properly termed mental illness" and "the reaction of a healthy mind to extraordinary external stimuli" [65] - [67].The evaluation of expert evidence
143 The role of medical expert evidence and the approach to its evaluation has been considered in a number of cases.
144 In Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 the High Court said: [2]
But to argue in the circumstances that it offended against the rules of logic is to mistake the nature of rational inference and of intellectual persuasion as to probability in the attribution of events to causes. That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves 'Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?' [2].
145 This does not mean that a jury (or a judge) can wilfully disregard expert evidence. In Taylor v The Queen (1978) 45 FLR 343 Smithers J:
Where the fact in issue is the state and capacity of the mind and the only evidence thereof is expert opinion the jury should understand that where the competence and honesty of the expert are accepted his skill in the area should be respected and should only be rejected for good reason. But if the jury are under the impression that on the relevant issue they must look to the 'facts' given in evidence other than by the experts as the source or primary source of proof of insanity, and that they are not bound by the opinions and are free to make up their own mind contrary to those opinions, then it is hard to think that they would be performing their task according to law (355).
146 In a case of mental impairment in Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659:
Although no evidence was called in rebuttal of the case for the prisoner upon the defence of insanity, counsel for the Crown cross-examined the three physicians who gave evidence of his insanity, and the cross-examination was directed to show that the prisoner could not but know the nature and quality of his act and that, having regard to his repairing to the police station immediately after killing the woman and to the statement he there made, he must be taken to have been aware that his act was wrong. The reasoning upon which the cross-examination was based was, of course, the kind of reasoning which a sane mind would pursue, while it is apparent from a reading of the transcript of the evidence that the reasoning of the witnesses was based on the belief or assumption which they adopted that the prisoner's mind was not a sane mind and accordingly would be governed by quite different beliefs and perceptions, and a different consciousness and understanding of the things that would be significant to the sane. In cases of this kind it may well happen that expert witnesses accepting the hypothesis that a prisoner is insane are not on the same ground as counsel adopting the opposite hypothesis and arguing according to the common sense of ordinary men supplied by the experience of sane persons. (at p663)
However this may be there are many reasons why, when a defence of insanity is strongly supported by expert evidence that an accused person was suffering from a disease or disorder of the mind, the instructions to the jury should include an attempt to explain not only the test which they must apply but also the real meaning of the expert evidence in its bearing upon that test and the considerations which may properly be used in deciding to accept or reject the opinions advanced [4].
147 With these principles in mind I turn to the evaluation of the expert evidence.
148 On the issue of insanity the accused called Professor Paul Skerritt and the State called Dr Adam Brett in response.
149 Their respective curriculum vitae were tendered and I am satisfied that each is eminently qualified to express an opinion.
150 A precondition to the defence of insanity under the Code s 27 is that the accused must be suffering from a mental impairment. Both Professor Skerritt and Dr Brett agreed that at the time of the killing the accused was suffering from an illness of depression.
151 In the view of the two psychiatrists, which also happens to conform with my lay view, there is no doubt that the accused was suffering from depression.
Professor Paul Skerritt
152 Professor Skerritt gave evidence that he had seen the accused professionally on only one occasion in October 2013. He sat in on the pre-recording of the evidence of Wissam, Malak and Youcef. He had a number of documents that were provided to him including some statements from the children - Malak on 30 April 2013, Youcef on 30 April 2013 and Wissam on 5 December 2013.
153 Professor Skerritt was the author of an article in 1999 'Irritability and Psychiatric Disorder' which was tendered. Professor Skerritt noted the diagnosis of depression and said:
But his moods and so on weren't entirely explainable just in terms of the circumstances, but by triggering off an illness of depression, which essentially means a disregulation of mood so it doesn't work properly. So that was - that was the essence of the diagnosis. Connecting that with the alleged offence was a bit more of a - of a jigsaw operation, which I - I think became clearer in my mind with the subsequent information that I received (ts 321)
154 Professor Skerritt thought that the evidence showed an intermittent quality of depression with quite a severe episode in a few months before the killing:
The next - the next part was how that connected with the commission of the offence and I think there was certainly a bit of a jigsaw there. We certainly know that depression can be associated with aggression. Most typically, it's aggression directed towards the person themselves and he did actually express suicidal thoughts to me. I became aware later that there were a couple of notes which were referred to in the police interviews yesterday and I must say, having looked at those notes, I agree with the officers that they were to all intents and purposes, suicidal notes. And what happens in the disturbed brain of a depressed person is that there is a great deal of aggression expressed towards the person himself which commonly results in suicide, but also towards other people (ts 325).
155 Professor Skerritt clearly connected aggressiveness to the depression noting that the question was whether the illness caused a loss of control or a loss of ability to control his actions:
But we've got the gap in his memory. Now, we know that many people who commit violent crimes have gaps in their memories and that by itself doesn't necessarily provide the defence known as automatism or that particular part of - of section 27. … We might perhaps assume that what we couldn't identify precisely historically was that that included aggression towards himself as well as to other people, particularly to his wife. And that he switched off and those impulses were able to come through to the surface without the participation of the action of the will and having sat through three and a half hours of police interviews yesterday, I - I got one very important bit of history that the officers got that - that I didn't get so well. And that was that there was a rather sudden switch off that when he approached the situation that resulted in the death of his wife, relatively suddenly his - his brain switched off and his - his stream of memory came back again, I think when the handcuffs were put on or something like that. But that - that's very typical of the history of what happens in a process of dissociation where there is a mounting tension at the time. The person's brain switches off so they have a gap in memory over that period of time and they can do things which the parts of their brain that are generated by the illness tell them to do but without the participation of the will. And so I thought when we added all of those things together, that was how it came out to me, that he did have a serious illness and that it stopped him from making a conscious decision to kill his wife, but it flowed straight through from - from processes related to the illness without a decision making process on his part.
WATTERS, MR: So in your view, did his illness affect his capacity to control his actions---Yes. I believe it did for that short period of time identified by his loss of memory (ts 326 - 327).
156 Professor Skerritt thought that Constable Flynn's observations of the accused's actions being switched on and off fitted very well indeed. Dr Brett described the illness as a major depression.
157 Professor Skerritt considered psychosis but did not have a chance to satisfy himself about that. He described dissociation:
[t]here is that disconnection between what the brain is determining to do and what the muscles are actually propelling the person around doing (ts 331).
158 Professor Skerritt, in reference to his report (which was not tendered) said:
With all of these complicated processes going on in his mind - - referring to the factors we've just discussed - - and with a gap of memory, I think that the somewhat unusual circumstances of insanity, or at least insane automatism, without the presence of actual delusions is a likely explanation of these tragic events (ts 334).
159 He said that he held this view a little bit more strongly after seeing the EROI and a little bit of information given today about the other policeman's observation (ts 334).
160 Professor Skerritt was asked about evidence of the accused hyper-ventilating or breathing very fast when he was first arrested and he said:
I keep getting little bits of information about this case that - that all fit into, you know, what I've referred to as a jigsaw, but hyperventilation is certainly a symptom of quite severe anxiety. And if we're looking at that scenario of mounting stress and suddenly switching off, then anxiety would be possibly the more common cause than straightforward depression. So it would surprise me not at all that at that time and right through that whole sequence, he had the mixture of anxiety and depression which is very common. And the anxiety part contributed to the switching off and dissociation (ts 336 - 337).
161 Sergeant McGee gave evidence of a time when Constable Flynn had put the accused on the ground when he was trying to stand up. Constable Flynn applied pressure to the shoulder blade area with his leg but once he stopped struggling and it was obvious that he had calmed down, 'we sat him up and put him back on the chair. He was breathing heavily'. He said he was never really volatile but he was being very vocal' (ts 271).
162 Once he was sitting back he was breathing heavily:
He was - every now and again, he - he'd - he'd, like, try and get his breath back, you know. Obviously, being handcuffed in a - in a - in a position, I'm aware of positional asphyxia so I was a bit concerned about the way he was breathing. He breathed quickly for a little while as if he was trying to get his breath - breath back after you've been running or exerting yourself but then he was calmed down (ts 271 - 272).
163 In cross-examination Sergeant McGee was taken to this part of his evidence and agreed that the accused was breathing very heavily:
Would you say he was hyperventilating---No, but what he would do occasionally which was - sort of sticks in my mind was he would, like, breathe rapidly for a short period of time, like hyperventilating, but very very short period of time. To me I've done it myself when you're - when you're puffed out, you're trying to get your oxygen back.
When you say short period of time, what - what - are you able to put a timeframe on that---Three, four seconds. A very short period, like, you know, a dozen breaths.
And this is when you're observing him the first time you're in there for about a - one and a half minutes, is that right---I noticed it - I noticed it really prominently after we had the little struggle on the ground. I didn't notice the rapid breathing at the very start. He was - he was puffed. He looked like he'd - he'd exerted himself at the start but the rapid breathing I - I specifically remembered after we'd - we put the - picked him up off the floor.
But he was certainly breathing very heavily when you first saw him in that room seated on the couch, wasn't he---He - yeah, he'd exerted himself. He was breathing heavy, yeah (ts 280).
164 There is an obvious explanation for the accused's heavy breathing at that stage. Firstly, he had been engaged in strenuous activity relatively recently, running around the side of the house, climbing the fence, getting into the back room armed with a piece of wood. Secondly, he had been restrained by Mr Polini and then by Constable Flynn who had physically put him in a position which at least gave rise to Sergeant McGee's sense of awareness of asphyxia. There is no other evidence that would lead me to prefer an explanation of anxiety as the cause of the heavy breathing.
165 In cross-examination Professor Skerritt was taken to his notes of the one interview he conducted with the accused. Among his notes, which he put in quotation marks:
Not crazy, very good heart, but I get angry easily (ts 339).
166 The accused also mentioned getting angry with his family in Algeria but, 'they know me'.
167 In relation to the day of the wife's death:
Well, that was what he'd volunteered when I was asking about the day of his wife's death.
Mm---The - the - he mentioned something about the money. He wanted to have some money to give to his friend, that -which I didn't - didn't enlarge on very much. I knew that there'd been a lot money problems. He said he was shopping and came back and his wife wasn't home. He said his wife had dreamed that somebody was going to kill her, and at that point we - we got to - he said remember nothing until the police came. And he said he did not remember - - -
So what point didn't he remember - - ----In - in the history given to me, that was a - a - a little bit vague. And I had to go away not being quite clear about that. But he said that he remembered nothing until the police came and he did not remember his wife coming home. Through the day he said he felt normal, discussing things with this daughter, and said, "I - I might find myself in the police station." I'm not quite sure what he - he meant by that. So that was about the best I could - - -
When did he say he might find himself in a police station---When I was inquiring about - about what he was like that day. And when he - he said he was discussing things with his daughter. And when there's a - - -
Did he mention which daughter he was discussing------No.
- - - thing with---No. No, not - no. Or if he did I didn't write it down.
No. But he might find himself in a police station---Yes (ts 342).
168 Professor Skerritt noted that the description given to him was somewhat vaguer than the one he gave in the EROI. It was a description of a gap in the accused's memory:
I don't have the capacity to determine whether people are telling the truth or not about that (ts 343).
169 Professor Skerritt said the fact that the accused could give an account to the police and a lesser account to him did not cause concern over the ultimate conclusion:
I actually prefer the elucidation of the symptoms from the police to my own with respect to the diagnosis (ts 345).
170 Professor Skerritt was taken to his diagnosis of depression and said:
The symptoms that are of relevance in this kind of context are that the person thinks very badly of himself to the point of thinking he'd be better off dead. But there - and I've commented on it in that paper, that the idea of punishing yourself versus punishing other people is part of the mental processes that are really very severely disturbed in depression. And if the depression is very severe, it's possible that those processes of the illness can come through to behaviour (ts 348).
171 Professor Skerritt clarified that in his opinion the accused did not have the capacity to understand what he was doing or the capacity to control his actions.
172 As part of his reasoning Professor Skerritt said:
[t]his was a very tense, violent scenario that was developing at the time, and his anger was developing at the time, and my suggestion is that at a point that level of anger reached such a state that his brain switched off from it.
…
Well, because although he'd been angry before, this was uncharacteristic behaviour, and we do have this question of the - a period of amnesia (ts 352 - 253.
173 He said that what was uncharacteristic was killing his wife:
But the violent conduct that had preceded this in the marriage, what do you say about that---Well, that obviously didn't lead to that dissociative process going on. We - we know that the anger was there. There's no question about that, and that was related, in my view, to the development of periods of illness. On this particular occasion it obviously reached a height that it hadn't reached before, and we could see the mounting tension and - and violence in the situation until finally he switched off from it and committed the offence.
What evidence do you have that says that the other periods of violence were associated with an illness---There's the chronological account that there is this period of a few months when his behaviour was uncharacteristic and violent like that, and as I understood he wasn't normally like that when he - when he wasn't sick (ts 353).
174 At 354:
Now, I know I've made some speculations about his brain process, and - and - and you're making one that there was a - an underlying core of potential violence that was brought out by the illness, and that's quite possible. But the question is whether it actually happened, whether - whether the violence itself was continuous, or whether it was triggered off by the illness. And it may well have been something that was lurking there waiting to be triggered off. That's a distinct possibility, but not something to cause actual behavioural changes continuously (ts 354).
175 In a further response Dr Skerritt said:
Well, you see, I think your - your classification of it's possibly insane automatism is based on the memory loss, isn't it---?---The - not - not entirely. The - the memory loss is a - is an indicator of that process that the - the brain switches off. Sort of - certainly said it's not the only one, but history of mounting tension in a difficult situation, then switching off, and then behaviour that's uncharacteristic is - is the whole - the whole of the scenario. The - the memory is not entirely the - the indicator for it, but it is a pointer of the fact that it can start and finish at particular points (ts 354 - 355).
176 From this he said:
So when I add all of those together that makes me come up with that conclusion. The - the - the gap in the memory is significant. It's not - not the only thing, and it's actually just a marker of the fact that the brain's not working that well in that time (ts 355).
177 Although the level of violence in this case had not been visited on the deceased before, I am satisfied that frequently throughout the marriage the accused was physically violent towards the deceased and during the incident of 23 March 2013 he had gone so far as to arm himself with a knife even though he did not use it. I do not accept Professor Skerritt's description of the violence as 'uncharacteristic'.
178 Cross-examination concluded with Professor Skerritt acknowledging that on 28 January 2014 he could not determine whether the accused was eligible for the defence of insanity. His report dated 3 March 2015 did but he had not interviewed the accused or looked at the EROI. The only new information was from the evidence of the children.
179 I have taken account of Constable Flynn's description of the accused adopting what he described as a thousand miles stare when the accused was braced, rigid, tense, panting. He was non-responsive and continued to stare straight ahead. He did not acknowledge Constable McGee. His breathing was rapid. His mood changed like flicking a switch when Mr Willmouth told him that his son was being looked after and he acknowledged with words and then slumped back on the couch and continued to pant and stare straight ahead.
180 This behaviour occurred in the aftermath of the killing and I accept as probable Dr Brett's explanation of a defence mechanism called 'disassociation' which defends the person from re-experiencing the trauma they have had.
Dr Adam Brett
181 Dr Brett saw the accused on 29 December 2014. His notes record that the accused's account of the alleged offence was sketchy:
He was also able to give a good account of the event which occurred before the index offence, although I note the chronology is inconsistent with other reports. He was able to recall the start of an argument with his wife then he stated that he did not remember anything until the police arrived.
Did he say where the start of the argument occurred---He - he just said it was in the house (ts 361).
182 In the weeks preceding the offence:
He described significant problems in the relationship with his wife. One of the things he focused on - but I think that was more indicative of their relationship - was an incident related to a car which his wife used and his wife sold, I understand, through her son-in-law, and she refused to give him the money from the proceeds for that car, wishing to purchase another car with the money, and it seemed that was a critical thing for him. Also it appears their relationship was worsening and she left the matrimonial bedroom and had moved into her daughter's bedroom and had been sleeping in one of the daughters' bedrooms and also another daughter's bedroom. So he - he described those incidents as a great insult to him.
Did he discuss - or did he tell you, I should you, what emotions arose from that---Yes. He - he described that his main emotion was anger. When I asked him about his mental health issues he stated that his main mental health issue was his anger.
And did he tell you how long that had been an issue for him---Yes, he said that had been a problem all of his life (ts 361 - 362).
183 Dr Brett conducted a second interview with the accused on 3 March 2015. There was a critical difference in relation to the incident of 23 March 2013:
In the first interview, he acknowledged threatening his wife with a knife and - but he stated that the - the threat was just verbal. By that, he meant that he - he had the knife and he threatened her but didn't have any intent of using the knife. On the second interview, he stated that he hadn't had the knife and the evidence he gave for this was that the police had searched him and they did not find the knife (ts 362).
184 Dr Brett said the accused blamed the police quite a lot for their intervention and that the 72 hour police order made him extremely angry. He believed that the main issue related to the money and he believed that he was right about this and he stated that the police also believed he was right in his actions.
185 In the days leading to the killing the accused stated that his mood was angry but also sad and low.
186 At the first interview the accused gave an account of the day:
[H]e gave an account of not going to work and he stated that that was because he'd been drinking the night before. But he also gave an account of the windscreen wipers not working and it was unclear which of those was the main reason for him not going to work. He stated that on the - on the day of the offence that he was at home with his youngest son and another child. He stated that he went shopping with them to get some groceries and they came back and they had a meal. He stated that his wife came back to the house but she did not eat with them and he said that this made him angry, but he - he ate with his children. Then he did recall that he asked his children to go to bed early (ts 365).
187 He said that the note on the envelope and the note dated 9.13 pm were suicide notes.
188 Dr Brett said that although he does not remember the allegations that is quite common in violent offences:
There's a lot of reasons why he may not remember the offence. Obviously that may be due to his alcohol use. He - he's previously had blackouts when using alcohol, and that obviously makes him more susceptible to that. It may be a defence mechanism. And a defence mechanism is called dissociation which defends the person from re-experiencing the trauma they've had. Now, that's different from a - a dissociative disorder which is an underlying pathology, and there's - there's a - a number of those. So I didn't believe that he was to - I don't think his depression deprived him of the capacity to understand the - the physical act that he was doing. And the evidence for that for me was the - there was some planning in the offence.
COGIN, MR: What evidence do you rely on for planning---?---The - the - that was the police interview, and I understand evidence in the court that he had a knife which he - he took to the bedroom, which I heard earlier in the - in the trial. So there was some planning. He took a knife. He took it to the - to the room where his wife was. He told his children to go to bed earlier, which is unusual and different from normal. He'd also made some notes which indicate he either wanted to kill himself or kill someone else. And again it's unclear whether these were suicide notes or homicide notes, or suicide/homicide notes. So there is an element of - of planning towards that. So my opinion was that he wasn't deprived the capacity to understand what he was doing. And if I can address the automaties and part - and the - and the amnesia, his amnesia wasn't really consistent with the amnesia you would expect in a dissociative or automatic state. Firstly, to have an automatism, you have to have a significant disorder - and obviously where - there's differences between sane and - and insane automatisms. But obviously in Falconer(?) there was a psychological blow. But again, in - in this case, I couldn't see evidence of a significant stressor which precipitated this episode. So that's the first thing you look for. The second is the amnesia. There are gaps - there - there - there's snippets of things he remembers, which is not consistent with dissociation. And more importantly, is - is when someone comes out of a dissociation, they're usually shocked as to what has occurred, and I don't think that was the case with Mr Chiha. Firstly, in the police interview he stated that he remembered seeing his wife on the ground and he sat down in the police interview to show - to demonstrate what her position was. If he was in a dissociative state, and that was his first memory coming out of the dissociative state, his wife had blood on her and she was lying on the floor, you'd expect him to come back into reality quite quickly and do something about it. Usually people coming out dissociation are shocked of what they've done, so I think post-act isn't consistent with a dissociation. And also following that that the subsequent violent events which occurred - the - the specific one for me which counts against an automatism is when his daughter was trying to call her - the ambulance or the police to get assistance that he assaulted her and kicked the phone away. Again, that to me isn't an automatic act. So the combination of all these acts are - are quite complex. It's not a simple case of attacking his wife to attacking his son as well.
Jumping over a fence and grabbing a piece of wood and coming back and attack. Preventing his daughter from calling the - the emergency services. So I think all those actions are far too complex to be part of an automatism. The - the second part of the limb is their capacity to control your actions. And - and again, obviously that's linked with automatism. It's a very difficult one to - to - to prove from a psychiatrist perspective, and - and the old adage is: what's the difference between an irresistible impulse and an impulse not resisted? And - and it's very difficult to - to really tell. We used a policeman at the elbow test as a sort of - a gross test to - to try and address that one. But again, I - I think given the planning and the previous threats, this counts against an impulsive act. Again, he - he took a knife to the room. There wasn't - there was notes. There had been previous behaviour of a similar ilk. And the - the third limb is whether he was deprived of the capacity to know that he ought not do the act. And obviously that's the - the moral issue of whether he thought the act was morally right or wrong. Not legally right or wrong, but morally. And there's no evidence of psychosis, which usually is - is the key feature to - for this - this limb as a defence. He didn't express any psychotic beliefs about his wife and I don't believe that the depression in itself could explain that behaviour. And - and I - I believe that it was better explained by anger within the context of depression and intoxication (ts 376 - 378).
189 In cross-examination Dr Brett conceded that his behaviour in the five week period before the killing vacillated between being normal and angry. He said that the timeframe for the actual physical incident is incredibly important for impulsivity because the impulse works in the brain:
So you have an impulse to act on something and then you act, so it's - it's - it's extremely rapid (ts 391).
190 He reiterated that the issue with the notes does point towards some planning before he picked up the knife:
[T]his limb of the Criminal Code is a very difficult one for psychiatrists to - to - to manage, like I say to the difference between irresistible impulse and impulse not resisted is, you know, the difference between sunset and dusk, and so I think it's very difficult to prove either way, and really, to - to make this limb work there's got to be good evidence of somebody who's got an impulse control disorder (ts 393).
Findings and conclusions on insanity
191 Although I have listened to and subsequently read all the medical evidence, including Professor Skerritt's article, I have only summarised and concentrated on the evidence as to capacity. A number of matters were explored by Professor Skerritt and Dr Brett such as the effect of the accident in 1999, the possibility of psychosis and the possibility of alcoholic blackout. But as neither of them relied on such matters to form their final opinions on capacity I have put them to one side.
192 Although the accused was suffering from a mental impairment at the time, I am not persuaded on the balance of probability that he was deprived of any of the capacities set out in the Code s 27. While Professor Skerritt's opinion of a dissociative state at the time of the killing is a theory, I do not consider it a strong or realistic possibility. Moreover, the conclusion rests on an insufficient foundation. It is significant that Professor Skerritt was unable to form a diagnosis in 2014. Very little changed between that opinion and his subsequent opinion in March 2015 that the accused was deprived of a capacity to control his actions. Professor Skerritt had available statements from three of the children in 2013. There is no evidence in the trial as to what those statements contained but the only extra information came from the children's evidence at the pre-recording. That evidence, contrary to Professor Skerritt's opinion, indicated that violence in the relationship was a characteristic and that the violence had escalated to at least a threat of a knife five weeks before.
193 Professor Skerritt did not refer to the evidence as to what the accused said to Malak and to Youcef immediately prior to the stabbing. Those comments indicate some deliberation on the accused's part and an awareness that he did not want them to witness what he was about to do.
194 I am attracted to Dr Brett's opinion and I find that there was a good deal of premeditation in the accused's acts that night, that preclude as a realistic possibility his acting in a dissociated state at the time of the killing.
195 The premeditation included:
• motive - the accused was clearly angry at his wife both generally and specifically in relation to the car and the proceeds of the sale. This was the cause of the incident of 23 March 2013 and his anger about that continued. As indicated in his EROI he was also angry that his wife was no longer performing what I will call for convenience 'wifely duties' and had moved out of the bedroom and was not cooking. This was anger directed at her;
• threats - the accused had in mind both suicide and murder as indicated in the threats he made during that five week period. While the threats by themselves could be regarded as 'fleeting', to use Dr Brett's word in another context, they have weight in considering what came to pass;
• the suicide notes - the notes clearly indicate that the accused expected that his family would be without parents. The letter to the son-in-law shows an indication on the accused's part that neither the accused nor his wife will be around to look after the children. That is why he wrote to the son-in-law;
• early bedtime - insisting that Youcef, Malak and Dheya go to their room and to sleep early was unusual and indicates an intention to get them out of the way or at least out of view of what was to come;
• called the deceased out of the bedroom - the accused knew where the deceased was. She was in Malak's room 'he came in demanding to talk to my mum (Malak ts 87);
• the words spoken just before the killing - Malak gave evidence that the accused was holding the deceased at the wrist with a knife in his other hand. She told him: 'Think about what you're doing and be smart. He told me, Go back to your room. It's none of your business' (ts 88). He told Youcef to go back to bed and then said, 'I'm just going to talk to her';
• arming himself with the knife - this is an act of some deliberation. The accused had to find a knife, carry it with him and then use it;
• re-attacking Youcef - after the accused had been settled on the smoking stool he ran back into the house as described having armed himself again, this time with a piece of wood;
• no surprise expressed at any time as to what had occurred.
196 The deliberation in all these matters combined establish conclusively that the accused's actions were not impulsive or in a state of disassociation or lack of control. They showed sustained control to achieve an object, the death of his wife.
197 The defence of insanity fails
Intention as an element of the cause of murder
198 The crime of murder is committed if a person unlawfully kills another and the prosecution proves beyond reasonable doubt that the accused:
(a) intends to cause the death of the person killed; or
(b) intends to cause a bodily injury of such a nature as to endanger or be likely to endanger the life of the person killed or another person.
199 For ease of expression I shall refer to this second intention as an intention to cause a life endangering injury although I am mindful that an injury likely to endanger life caused with intention can be sufficient.
200 In Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91 (McLure P) held that although the injury must have been intended its dangerousness need not have been foreseen:
The expression 'of such a nature' as to endanger, or be likely to endanger, life is in my view intended to define the scope or types of bodily injuries that must be intended, being bodily injuries that have the (objective) potential consequence or effect. That is, s 279(1)(b) is partly subjective and partly objective; the accused must subjectively intend to cause bodily injuries which objectively endanger life, or would be likely to endanger life [25].
201 In R v Ping [2005] QCA 472; (2006) 2 Qd R 69 (Chesterman J):
'Intention' has no specific legal definition. It is to be given its ordinary, everyday, meaning. 'Intention' is the act of 'determining mentally upon some result'. It is a 'purpose or design' (see The Macquarie Dictionary) [29].
202 In Willmot v The Queen [No 2] (1985) 2 Qd R 413 (Connolly J):
The mental element which must be proved when a case of murder goes to the jury under s 302(1) [s 279(1) WA] is intention to cause death or do grievous bodily harm. The ordinary and natural meaning of the word 'intends' is 'to mean, to have in mind'. Relevant definitions in the Shorter Oxford English Dictionary show that what is involved is the directing of the mind, having a purpose or design. The notion of desire is not involved as the learned judge rightly held. A person may do something, fully intending to do it, although he does not in the least desire to do it.
203 Intention is a statement of mind and is a fact capable of being proved like any other fact.
204 Intention does not require premeditation but may be formed and executed within a moment. It is different from motive. The prosecution does not have to prove motive: Criminal Code s 23. If, as here, I find a motive for the accused's actions, that is one of the circumstances that can be taken into account in determining whether the prosecution has proved the accused acted with an intention.
205 Intention may be proved through circumstances and the drawing of inferences. The circumstances of a killing may be such that it is inevitable to conclude the accused's purpose must have been to kill or cause a life endangering injury. However, as with the drawing of any inference adverse to an accused, the circumstances must be such that the inference as to the accused's intention to kill or cause life threatening bodily injury is the only available inference to be drawn. If there is another inference reasonably available then it follows that the prosecution has not established this element of the offence beyond reasonable doubt. The ultimate issue is always the accused's state of mind which, on occasion, may not be the same as objective factors may apparently indicate. I have borne this steadily in mind.
Anger and intention
206 The effect of anger on the formation of intention can cut both ways as Wheeler JA reminds us in Turner v The Queen [2004] WASCA 127:
The interaction of the emotion of anger with an accused person's formation of an intent is not an easy one to articulate. It was submitted to us by the appellant's counsel that, in the words of the headnote to Cutter v The Queen (1997) 143 ALR 498 in this case, as in that: 'The circumstances … could not exclude the possibility that [the deceased] was stabbed in anger and with aggression but not with an intent to take his life'. The submission, at times, appeared to verge on the proposition that anger and aggression were emotions which precluded the formation of an intention to kill. That obviously is not the case. Anger and aggression may well be emotions which lead to the formation of such an intention.
The process of forming an intention is a mental process involving the capacity to reason and to understand what the consequences of an action may be. Anger is an emotion, a state of feeling rather than a state of mind. Indeed, Wylde's Dictionary (Wylde Universal Dictionary of the English Language, London) defines emotion in one of its uses as 'any of the feelings, contrasted with the mental processes of reasoning' (emphasis supplied).
However, it is common experience that there may on occasion be an interaction between states of emotion or feeling, and the ability to reason or the process of reasoning, particularly when emotions are very heightened. In this case, for example, it would have been open to the jury to consider the possibility that the appellant was in such a state of anger at the time that he stabbed the deceased, that although he lashed out at her intending to harm her, he did not stop to contemplate with any degree of precision what harm would or might flow from the attack which he launched. In that sense, the appellant's anger would have been a matter which the jury could consider, and it was wrong for his Honour to direct them as he did that, as a matter of law, it did not affect the issue of guilt [18] - [20].
Intoxication and intention
207 The Criminal Code (WA) provides that intoxication, whether complete or partial, may be regarded, for the purpose of ascertaining whether the State has satisfied me that the accused had a specific intention either to kill or to do a life threatening injury: Criminal Code s 28(3).
208 It is the experience of the court that sometimes a person can act when drunk in a way that they would never dream of acting when sober. Being intoxicated might give a person anger and might give them an intention. But it is also the experience of the courts that sometimes acts really are just drunken acts. They are not acts that have any particular mind directing them or intention going with them. Alcohol can cause a person to do something in such a drunken state that they may not really have had any particular intention to achieve any consequence of the act.
209 It was put to Wissam that it was not usual for the accused to drink alcohol and her response was:
It's very usual for my dad to drink alcohol. He's been drinking since Algeria (ts 131).
210 She clarified that in day to day life he did not drink alcohol but when there was the cycle of aggression he would.
211 Her father's smoking heavily increased in the two to three month period before the killing.
212 Mr Polini was asked whether he noticed anything about the accused's sobriety when he attended on the night:
There was alcohol on his breath. There was a bottle inside the house on the dining table; half a bottle - it was a bottle on there, anyway, which had been opened.
… A pre-mix bourbon or whiskey - no, it wasn't whiskey, it was a - yeah, a pre-mixed bourbon or Bundy or one of those style pre-mix drinks. Had a dark label. He had a bit of - he had alcohol on his breath (ts 186).
213 Mr Polini said:
I know the difference between being tiddled and being half pissed.
…
From my experience dealing with the boys and that growing up, it wasn't drunk in any way, shape, or form (ts 186, 187)).
214 When Sergeant McGee attended he did not consider that the accused was drunk although he could smell alcohol. He said the accused was steady on his feet, did not slur his words (noting that he had lost some teeth and tended to mumble) and was clear-eyed. In cross-examination he was challenged as to the manner in which he could observe that the accused was steady on his feet in a short space of time involving the handcuffing first to the front and then to the back of the accused. He said he observed at that point and also when the accused was walked out of the house through the garage.
215 Youcef said:
Do you recall that your dad drank quite a bit of alcohol that weekend---Yes.
And that's quite unusual for him, isn't it---Yeah.
That was something very different for him---Yes (ts 77).
216 Exhibit L are records from the Dan Murphy Liquor Store in Canning Vale which show that in the space of an hour the accused bought two lots of alcohol. On 29 April 2013 at 18.36 he bought four Jim Beam and Cola premix cans and bought another four Jim Beam and Cola premix cans at 19.24. There is no evidence as to the consumption of these cans apart from one observation. However, it is logical that the accused drank the first four cans of Jim Beam which is why he bought the second four cans. I will assume in his favour that he drank the contents of all the cans. This is also consistent with what he told Dr Brett. The accused in his EROI did not regard himself as intoxicated, a state he described in effect as being when a person cannot remember anything. He said he could remember things.
217 In the course of the EROI the accused gave evidence about his drinking. He said:
In the last three days, 'I drink a lot to go to sleep and before the day before yesterday I drink a lot. I don't wake up to go to work (EROI page 12).
218 He said after dinner he drank Jim Beam (first DVD page 22). He described (page 28, 29) going to the liquor store to get Jim Beam and said at page 31:
And is that the drink you usually drink is it, Jim Beam? I, I drink in my life three night, three days.
So this is the only time you have ever done it, three times? Yeah, yeah, here in Australia. Just only three days. Um, yes Monday and say Sunday and say Saturday.
219 He also said that he had stopped praying three days ago:
Okay, and that's because of the drinking? Yeah, because, ah, I was very very upset (page 32).
220 He was asked:
Do you know what drunk is? Drunk means someone he know nothing. He forget everything. Mmm but I think I know (page 33).
221 He said he had a disagreement with Malak because he had asked her to get the keys for the vehicle and she had refused and then:
I go straightaway and drink another four beer (second DVD page 24).
222 On the whole of the evidence I am prepared to accept that the accused was intoxicated to some degree but that his level of intoxication fell far short of having any impact on his capacity to form an intention to commit murder. If it had any effect, coupled with the accused's great anger towards the deceased, it positively contributed to the formation of his intention.
Conclusion and finding on the counts of murder and wounding
223 As the accused has failed to satisfy me on the balance of probabilities that he was insane at the time of committing the admitted acts or the act of wounding which I am satisfied occurred, the consequence is that the act causing death and the act of wounding were unlawful acts. The accused is therefore guilty of count 2 - unlawfully wounding Youcef, a person with whom he was in a family and domestic relationship.
224 As to count 1, I am satisfied beyond reasonable doubt that the accused intended to kill the deceased. The reasoning I apply is essentially the same reasoning as I have just set out in concluding that the accused was not in a state of disassociation.
225 I have taken into account Dr Cadden's evidence of the small amount of force necessary to cause the fatal wound. I have taken into account the accused's consumption of alcohol. I have also taken into account his state of mind which was, to a degree, disturbed by his illness of depression.
226 I cannot be satisfied that his return to the home was motivated solely to further attack the deceased who was by this time on the ground in the front entrance hall. An alternative explanation is that he returned to further attack Youcef. However, I am satisfied that he kicked the phone out of Malak's hand and the obvious reason for this action was to prevent assistance being obtained for his wife.
227 The inevitable conclusion on all of the evidence is that the accused harboured intense feelings of antagonism towards the deceased for many reasons and on the night decided that he would kill her and possibly himself. Murder suicide had been on his mind for some time. To this end he made some preparations such as putting the children into their bedrooms and arming himself with a knife. Notwithstanding the presence of Malak and Youcef he almost immediately stabbed at his wife causing her to sustain the injuries she did, fighting Youcef off as he vainly tried to protect her. The accused intended to kill the deceased and succeeded.
228 I find the accused guilty as charged of both counts.
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