The State of Western Australia v Clemons - [2023] WADC 39

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CLEMONS [2023] WADC 39
CORAM:   MASSEY DCJ
HEARD:   27-28 MARCH 2023
DELIVERED          :   4 APRIL 2023
FILE NO/S:   IND BUN 109 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
REBECCA LEE CLEMONS

Catchwords:

Criminal law - Two counts of unlawful wounding - Whether accused of unsound mind at the time of the woundings - Mental impairment - Whether accused was deprived of capacity to control her actions or to know that she ought not do the act - Expert psychiatric evidence unanimous that accused lacked capacity in at least one respect - Custody order made

Legislation:

Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Criminal Procedure Act 2004 (WA)

Result:

Accused not guilty on account of unsoundness of mind on both charges

Representation:

Counsel:

The State of Western Australia	:	Ms K R Argue and Mr B R Stanwix
Accused	:	Mr H Sklarz

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Sklarz Lawyers

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

Evans v The State of Western Australia [2010] WASCA 34
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Porter [1933] HCA 1; (1933) 55 CLR 182
Radford v The Queen (1985) 20 A Crim R 388
The State of Western Australia v Djurasovic [2021] WASC 466
The State of Western Australia v Siddique [No 2] [2016] WASC 358
The State of Western Australia v Strabach [No 2] [2012] WASC 227

MASSEY DCJ:

The accused is charged on indictment with two counts of unlawfully wounding Jordan William Clemons. In each count there is a circumstance of aggravation alleged, namely that Ms Clemons was in a family and domestic relationship with Jordan Clemons.
On 17 January 2023 the accused filed an application for trial by judge alone supported by an affidavit sworn 17 January 2023 by her solicitor, Mr Sklarz. The orders sought in that application were granted by Wager CJDC on 23 January 2023.
The trial commenced on 27 March 2023 with the accused pleading not guilty on account of unsoundness of mind.
At the outset of the trial the accused admitted that she unlawfully wounded Mr Clemons in the shoulder and the head and admitted the circumstances of aggravation in each count. The sole issue with respect to each of the charges on the indictment was whether the accused had established, on the balance of probabilities, if she was of unsound mind at the time she wounded the complainant.
For the reasons which follow, I find that I am persuaded on the balance of probabilities that the accused was of unsound mind at the time she wounded Mr Clemons in each count and that consequently the verdict must be one of not guilty on each charge.

The proceedings

A statement of agreed facts was read to the court and tendered in written form.
Section 93 of the Criminal Procedure Act 2004 (WA) provides that, in a case where the accused pleads not guilty on account of unsoundness of mind, the judge may decide the issue on any evidence and in any manner the judge thinks just, provided the prosecutor consents, the accused does not object and it is in the interests of justice to do so.
I was satisfied that the statement of material facts should be received as establishing the relevant factual circumstances after having regard to the provisions of that section and the views expressed by the parties.
The prosecution also tendered a bundle of materials including the prosecution brief and the psychiatric report of Dr Brett dated 19 November 2022. During the course of the hearing footage from body worn cameras of two police officers, Senior Constable Page and Senior Constable Porter, was played and tendered in evidence.
The prosecution called Dr Brett as a witness and then closed the prosecution case.
The accused elected to testify herself and the defence then called Dr Pascu.
During the course of the defence case the prosecution tendered a psychiatric report commissioned by the accused's solicitors from Dr Pascu dated 27 June 2022.

The statement of agreed facts

I will set out the statement of agreed facts in its entirety. It reads as follows:
Background
1.The victim in this matter, Jordan William Clemons, is the accused's husband. At the time of this offence, they were living together with their two children Cruz (7 months old) and Chaz (5 years old) at 20 Taylor Street, Eaton.
2.Since the birth of their first child Chaz in 2016, the accused has suffered from mental health issues. At the time of this offence, she was medicated with Seroquel tablets (25mg). Approximately 3 years prior to this offending, the accused had been admitted to the Bunbury hospital for treatment of her mental health.
3.The victim was aware of the accused's struggles with mental health and referred to them as 'episodes'. Prior to this incident, the accused had never behaved in a violent manner towards the victim. The 'previous episodes' were only ever of a vocal nature.
4.In the weeks leading up to this offending, the accused was posting religious passages on her Pinterest page. Prior to this, the accused had never engaged in any religious practice, to the victim's knowledge.
The offending
5.On 14 May 2021, the victim left the family home at about 4:30am and drove to his workplace at 5350 Forest Highway, Myalup. The accused remained at home to care for their two small children.
6.Sometime after the victim had left the family home for work, the accused went to her neighbour Natasha Crosby‑McCormack's house. While there, the accused appeared highly anxious and was shaking. The [accused] told Ms Crosby‑McCormack to get rid of all plastics and to begin using a wood fire stove and a rainwater tank. The accused told Ms Crosby-McCormack that she had 12 days to sort these things out. The accused also told Ms Crosby-McCormack that she was on a mission that she was trained for.
7.The accused seemed conscious of her high anxiety because she told Ms Crosby-McCormack that she knew she had to calm down. When Ms Crosby-McCormack went to get dressed, the accused left the house and returned to her own home.
8.As a result of the accused's behaviour, Ms Crosby-McCormack contacted the victim at about 7am, and told him that the accused was acting strangely. Ms Crosby-McCormack informed the victim that the accused had said that she was packing her car because someone was after her.
9.The victim returned home immediately and saw that the accused's vehicle was parked in the driveway and the children's car seats had been removed. There was a large pile of household items such as pieces of an outdoor setting, chairs, toys, and a black easel sitting on the back patio.
10.Concerned that the accused was suffering 'from an episode', the victim entered the house through the back door and saw several glass jars sitting on the dining room table which he thought was odd.
11.The accused met the victim at the back door, asked what he was doing home and questioned whether their neighbour Ms Crosby‑McCormack had contacted him. The victim told the accused he had a meeting in town and had simply returned home to freshen up and have a cup of tea.
12.When the victim asked the accused what was going on at the house, the accused said, 'it is ok, I understand, it is not right'. When the victim suggested that they take their eldest son to school, the accused said she would do it herself before asking what the victim wanted to do after that.
13.The victim began making a cup of tea and suggested that after taking Chaz to school, they should attend the hospital together to speak with the Mental Health unit there. The accused began pacing around and repeatedly told the victim that she loved him before saying 'I will do anything but don't take me back to the hospital'. The victim told the accused the hospital visit was non‑negotiable, and they would be going there.
14.While the victim continued to make a cup of tea, the accused walked away down the hallway several times and returned to the kitchen area several times. The victim asked the accused to sit down at the table with him so they could talk but she continued walking back and forth.
15.When the victim turned around to remove the tea bag from his mug, the accused used a 20cm long black handled kitchen knife with a blade approximately 15cm long, to stab him to his back right shoulder. The victim felt immediate pressure to his shoulder area and realised he had been stabbed. [Count 1]
16.The victim used his left arm to reach around and grab the accused's arm and the two began to wrestle against each other. During the struggle, the victim was able to remove the knife from his shoulder and discard it onto the kitchen floor.
17.The victim and accused continued to wrestle against each other. Furniture was knocked over and the [struggle] moved from the kitchen area to the nearby computer area. At the time, 5‑year‑old Cruz was present.
18.The victim managed to make his way over to the window and call out for help. Despite this, the accused continued to wrestle with the victim before grabbing a clothes iron from atop a filing cabinet. The accused used the iron to strike the victim in the head multiple times. The blows drew blood and caused an 8cm superficial laceration to the victim's head. [Count 2]
19.As a result, the victim and accused fell to the floor together. While the victim attempted to remove the iron from the accused's grip, she wrapped the cord of the iron around the victim's neck and began trying to choke him. The pressure applied by the accused was insufficient to stop the victim's breath and he was able to remove the cord from around his neck.
20.The physical struggle between the two continued down the stairs and into the lounge room. When they were in the lounge room, the victim managed to restrain the accused by getting on top of her and holding her down.
21.Throughout the course of the struggle, the accused was speaking but her speech was largely incoherent. The accused asked the victim to kill her, called the victim a pussy and again told him to kill her. At one point, the accused said, 'we can both go, they are after us'.
22.While continuing to restrain the accused, the victim removed his mobile telephone from his pocket, called his neighbour Ms Crosby-McCormack and asked that she call the police and an ambulance.
23.Ms Crosby arrived at the victim and accused's house and tried to help the victim restrain the accused. Ms Crosby-McCormack applied a towel to the [victim's] back while he continued to restrain the accused on the ground. This occurred over a period of about 15 - 20 minutes until Ms Crosby-McCormack's partner Ryan Kinnell arrived and commenced restraining the accused.
24.The victim went to the front of his house to wait for the ambulance to arrive.
25.Police arrived at the address at about 8:09am following which the victim was transported by ambulance to the Bunbury Hospital. Police located the accused inside the house, still being restrained by Mr Kinnell. The accused was sedated and transported by Ambulance to the Bunbury Hospital.
26.Police seized the knife used by the accused from the kitchen floor after being told of its location by 5-year-old Chaz and the victim.
27.The accused was later admitted to the Acute Mental Health ward of the Bunbury Hospital where she remained as an in-patient until 14 June 2021. Upon her release from hospital, the accused was offered however declined to participate in a recorded interview with police. She was subsequently charged for this conduct and released upon a bail undertaking.
Treatment of injuries
28.The superficial laceration to the victim's head was cleaned and taped with steri-strips.
29.The 5 cm entry wound to the right upper scapular was cleaned and sutured and the victim received pain relief.
30.Medical practitioner Dr Clifford November opined that 'the stab wound to the back did not cause any immediate life threatening emergencies. It should not result in any permanent disability. If the injury was left untreated, there was the potential for infection, and reduced range of motion of the shoulder.'

The evidence

The State played footage taken from body worn cameras of Senior Constable Page and Senior Constable Porter. The footage was approximately 90 minutes in duration and depicted police arriving at the accused's house, where she was then being restrained by a member of the public. What can be seen thereafter are the attempts at engagement with the accused by the police, their restraint of her, her demeanour and language and then her placement onto a stretcher and removal by ambulance to the hospital.
Each of the expert psychiatrists were present in court when the footage was played. Neither of them had seen the footage and during the course of their oral evidence both of them confirmed that their opinions had been strengthened as a result of viewing it.
Until she was eventually placed on a stretcher the footage shows the accused lying on the ground being restrained firstly by a member of the public and then later by police. She was placed in handcuffs.
The footage is relevant to my assessment of the accused's mental state. Until she was given what was described by Dr Brett as being intramuscular medication she was aggressive, agitated, loud and irrational. The accused talked and yelled constantly and repetitively. She said a number of times that 'Mad Dog' (who I presume to be the member of the public restraining her) should kill her. She constantly said that he should show some 'Anzac spirit' and that 'your country needs you'. She mentioned a spaceship going to Mars and talked of plastic being the number one pollutant. She said that she should be put in a jet and sent to Mars. She constantly said things like 'your country needs you' and exhorted Mad Dog to fight 'for your country'. She said 'God bless America' and 'I'm sorry America' and mentioned the 'Father, Son and Holy Ghost'.
She spoke constantly throughout almost the entire 90 minutes of the recording and was only relatively calm towards its end, after having been given medication.

Dr Brett

Dr Brett was the only witness called by the prosecution. Amongst his other qualifications he is a forensic psychiatrist who was the Director of the Community Forensic Mental Health Service for a number of years, is the Deputy Psychiatrist for the Mentally Impaired Accused Review Board and also provides private reports. His report was tendered and he consequently spoke to his report.
The following is taken from his report. His sources of information included a clinical interview with the accused on 15 November 2022, an emailed request for a psychiatric report, the prosecution brief, a copy of the report from Dr Pascu dated 27 June 2022, and access to the Western Australian mental health database, including discharge summaries and current management plan.
According to his report, during her interview the accused told Dr Brett that her medication was being reduced in the weeks before the incident and that she had subtle signs that she was becoming unwell including poor sleep. She said that she was having more thoughts about her faith and during the day before the wounding occurred she started to become more unwell, believing that Australia was going to war and had to commence 'doomsday prepping'. She began to get intrusive thoughts about plastic and its toxicity.
Dr Brett said that the accused told him that she started feeling unwell and not right in the evening before the incident and that her husband went to work early in the morning of the day of the incident. She said that she felt compelled to start doomsday prepping and described to Dr Brett how she did so. She got increasingly elevated and saw more plastic which she regarded as toxic. She said that she started recalling her mine rescue training and heard phrases like 'clear the path, clear the path' and 'eliminate' which she understood to be a reference to plastic and making the area safe. She started getting wood and putting it in her car for when the electricity was cut and put a first-aid kit in her car. She then threw plastic things onto her front lawn, became paranoid that people were watching her and then started running. She went to a neighbour and told her to 'stick to your rainwater, they are going to poison our water supply' and ran home again. She went back to her neighbour and asked her not to call her husband.
Her husband arrived home and told her they needed to sit down and have a talk. He went to put the kettle on and she was worried he would see the playpen and that he would take her to hospital, where she did not want to go. She told Dr Brett that she heard a voice, which was inside her head and which she did not recognise and that she heard the term 'eliminate', which she took to mean 'kill' and believed it was referring to her husband. She said that she did not feel in control of her arms and told Dr Brett that the entity told her to do it and she did it. She said that she felt threatened that she would be sent to hospital and that after she had stabbed her husband she felt that her life was being threatened. She recalled the neighbour coming around and police arriving and being sedated and taken to hospital.
Dr Brett noted that the accused's husband said in his statement that doctors had been weaning the accused off lithium, and that when he arrived home he found a big pile of household items on the back patio. According to his statement, the accused's husband had noted that the accused had never acted out violently towards him. Dr Brett also noted that the neighbour, Ms Crosby, had provided a statement in which she said that the accused had come to her house that morning, but she was having some sort of mental episode and was in a doomsday frame of mind. Ms Crosby said that the accused was telling her that she had to get rid of all her plastics and get back to basics and that she needed to use the wood fire and rainwater tank. Ms Crosby noted the accused was in a state of high anxiety and shaking.
Dr Brett described the accused's previous psychiatric history. The accused stated that she had been diagnosed with bipolar affective disorder and had had two episodes of post‑natal depression. She said that her first mental health episode followed the birth of her first child which was a long labour resulting in an emergency caesarean section. She said that she sought medical help for post‑natal depression and was referred to a mother and baby unit at King Edward Memorial Hospital, which she stated was a bad experience. She said she had an adverse reaction to medication, was in and out of hospital and ultimately was given electro‑convulsive therapy (ECT) which she was very unhappy about.
She was subsequently put on heavy medication that she did not like and said that she did not recover to her pre-morbid state until her son was aged 3 or 4.
In the interview the accused went on to tell Dr Brett that lithium was recommenced in her second pregnancy and that the birth of her second child was also traumatic, as she underwent another caesarean section. She said that there were post‑delivery complications and she had a prolonged admission to hospital.
When she got home she was doing well. She said that her treating team started weaning her off lithium and Seroquel.
From collateral sources Dr Brett obtained a history of an episode of mild depression in 2012, and from 22 June 2015 to 11 July 2016 the accused was admitted to the Mother and Baby Mental Health Unit at King Edward Memorial Hospital, having been transferred from Bunbury Hospital with paranoid thoughts and religious delusions. She started hearing voices 48 hours after having delivered her first child. She described paranoid thoughts of the devil wanting to harm her baby and believed she was Mary, her husband was Joseph and her baby was Jesus Christ reborn.

She was then commenced on antipsychotic medication to which she responded well and the psychosis resolved.
From 9 September 2016 to 5 November 2016 she was admitted to the Mother and Baby Mental Health Unit at King Edward Memorial Hospital having been referred by her community mental health team. She underwent a course of 12 ECT sessions, to which she responded well and lithium was commenced. Her mental state gradually improved and she was euthymic (normal) at discharge.
The discharge diagnosis was bipolar affective disorder, currently manic, severe, with psychosis and she was discharged on lithium and Risperidone, which Dr Brett described as an antipsychotic.
From 24 December 2018 to 14 January 2019 the accused was admitted to Bunbury Hospital in a mental health unit having been referred by her case manager after her husband had reported rapid deterioration in her mental state over four days. She was concerned that talking would compromise her safety, had limited insight, reported that the water environment was toxic and was in possession of religious items. She was commenced on medication and slowly settled. The discharge diagnosis was severe manic bipolar 1 disorder with psychotic features and she was discharged on Seroquel.
From 16 September 2020 to 29 September 2020 she was admitted to the Mother and Baby Mental Health Unit at King Edward Memorial Hospital but the discharge summary was not available to Dr Brett.
In February 2021 she was discharged from Bunbury Community Mental Health Services.
From 14 May 2021 (the day of the woundings) to 14 June 2021 she was admitted to Bunbury Hospital Mental Health Unit following the woundings. It was noted she required four police officers to restrain her and she required intramuscular sedation. She was hostile, talking about religious themes and was responding to unseen stimuli. She had stopped her lithium for the past few months and said that she had felt normal until the morning of the offences. Collateral information suggested she had been paranoid for at least the last few days, had a noted preoccupation with plastics, anger at her husband and stated that she had to complete her mission. She was recommenced on lithium and Seroquel and slowly settled. The discharge diagnosis was bipolar affective disorder, current episode manic and follow up was organised through her local mental health service.
On 1 August 2022 a community client management plan was noted and it was further noted that she had had two relapses of mania during planned trials off lithium, following only three to four nights of disruptive sleep. It was noted she was currently stable but needed urgent review if she experienced any early signs of relapse. Lithium and quetiapine were confirmed and it was recommended that she stay on lithium indefinitely.
Dr Brett noted there was no significant history of substance abuse and that the accused was currently medicated on lithium and Seroquel.
Dr Brett summarised her family and personal history.
In relation to his mental state examination, Dr Brett noted in his report that the accused was a good historian and her effect was reactive and euthymic. She was appropriately tearful at times and her speed was of normal rate and flow. There was no evidence of psychosis and there were no acute risk issues. Her cognition was grossly intact. She had some insight into her mental health issues, her treatment needs and her legal situation and he noted that she disagreed with her treating team about her diagnosis.
Dr Brett diagnosed the accused with bipolar affective disorder, currently in remission. He said there were no significant personality disorders or medical conditions. He also noted her current function was not impaired.
Dr Brett described the alternative (which he described as differential) diagnosis would include a post‑partum mood disorder which he said had more significance for her clinical management rather than for these legal issues. He was of the view that Ms Clemons was suffering from a mental impairment at the time of the woundings, namely the mental illness bipolar affective disorder, manic episode with psychotic features.
It was Dr Brett's opinion that the accused was not deprived of the capacity to know what she was doing at the time of the woundings.
He was of the view that her mental impairment deprived her of the capacity to control her actions at the time of the woundings, saying that he believed her mania and psychosis made her increasingly impulsive and unable to control herself.
Dr Brett was further of the view that the accused's mental impairment deprived her of the capacity to know that she ought not do the act. He believed that the accused thought that World War III was imminent and was preparing for doomsday. She had paranoid ideas about her husband and was concerned that he was going to take her to hospital, which would prevent her from doing her preparations. She believed she was on a mission. Dr Brett said that all of those beliefs were due to her mental impairment.
Dr Brett went on to say that he had considered whether the accused's behaviour was from anger due to being told that she was being taken to hospital but there was good evidence that she was unwell before hospital was mentioned, her behaviour was out of character and her behaviour and symptoms were consistent with previous relapses.
Dr Brett concluded by saying that she had responded well to treatment and is currently in remission. He recommended ongoing mental health follow up.
In his oral evidence Dr Brett confirmed his opinion in his report. He described the collateral information with which he had been provided as excellent and said that there was no contradictory information that he gleaned from his interview with the accused. He felt that he had sufficient information to make his conclusions. He described the differential diagnosis of post‑partum mood disorder as affecting any treatment issues, but effectively said that whether the diagnosis was bipolar affective disorder or post-partum mood disorder did not ultimately affect his conclusion that the accused was suffering from a mental impairment at the time she wounded Mr Clemons and that mental impairment deprived her of the capacity to control her actions and of the capacity to know that she ought not do the act.
He said that the reduction in the accused's medication prior to the offences contributed to her mental impairment. He said that although it was not a bad decision to try to take the medications away it was very difficult to predict what was going to happen. He said that he thought the mood stabiliser and antipsychotic were having more impact on Ms Clemons than previously thought and that stopping the medication, which to his understanding was a decision between the accused and her doctor, in retrospect was probably a bad idea.
He was aware that he and Dr Pascu differed in their views as to whether the mental impairment deprived the accused of the capacity to control her actions. He described this issue as a controversial one and said that he and Dr Pascu were not, in reality, very far apart but he stood by his view that the accused's mental impairment deprived her of the capacity to control her actions. He said that the footage from the body worn cameras had reinforced his view that the accused was clearly unwell.
He said that although he had considered whether the accused's behaviour could have been due to other factors such as being upset about the prospect of going to hospital he had, in effect, ruled those out. He said that the accused was mentally unwell and she was angry.
He said that the fact that the accused's symptoms were consistent with her previous mental health episodes as well provided him with a good indicator.
He said that the conclusion that the accused was currently in remission meant that she did not have any symptoms but this did not mean that her bipolar disorder had disappeared, but just meant that it was well controlled. He said the two commonest potential causes of a relapse would be stress to the accused or stopping her medication.

The accused

The accused elected to testify in these proceedings.
She gave evidence that prior to the birth of her first child she was not suffering any mental illness. Before her first child was born she was working in an administration role at a settlement agency. She said that she was not anticipating having a caesarean section prior to it being performed and said that she remembered closing her eyes and having an out of body experience. She said that after she was released from hospital she became unwell and she sought help from a mental health place in Bunbury. She said she attended Bunbury Hospital in December 2018 and was prescribed medication. She said lithium was one of the medicines prescribed to her. She said that she had 13 sessions of ECT.
She said in February 2021 she was receiving antidepressants with the lithium and was hoping to wean herself off it. She said she had a discussion with her doctor and her lithium was reduced. She described herself as having wanted to stop using it because of the side effects. She said that she was currently on lithium as well as Seroquel.
She also said that if she did not have a solid night's sleep then she would take Temazepam.
She said that prior to the offences occurring she had stopped taking lithium with her doctor's concurrence and said that this would have occurred within a month of the offences happening.
She testified that she was not getting enough sleep in the lead up to the wounding, having a 6 month‑old baby and getting up to the baby in the evening.
She said that on the day the woundings occurred she woke up feeling unrefreshed and was hearing a song going through her head, which she said was 'The Last Day on Earth'. She said she was not herself.
She said that she had no prior criminal convictions.

Dr Pascu

Dr Pascu was called on behalf of the accused.
She is a consultant forensic psychiatrist and worked in the Frankland Centre as a consultant psychiatrist and later as inpatient director. She said she was the Acting Clinical Director for the State Forensic Mental Health Services for a few years and is currently the Director of Clinical Services at North Metropolitan Area Health Service Mental Health as well as the Acting Medical Co-Director for Adult Community Mental Health Services. She has given expert evidence in courts regarding the insanity defence, amongst other issues.
Dr Pascu confirmed the contents of her report, which was tendered in evidence. Her report said that her sources of information were an interview with Ms Clemons for three and a half hours on 19 May 2022, a copy of the statement of material facts, a copy of the indictment, the brief for prosecution, two letters from Dr Khorram, senior medical practitioner dated 9 and 19 November 2021, the client management plan dated 9 February 2021, a letter regarding the complainant dated 3 December 2021 authored by Dr Clifford November, a registrar at Bunbury Hospital Emergency Department, the discharge summaries for the accused from Bunbury Hospital and King Edward Memorial Hospital, copies of service events from Ms Clemons' medical file from Bunbury Community Mental Health Service, collateral information from Ms Clemons' family and friends, her treating doctor at Bunbury Community Mental Health Service and copies of medical files from Bunbury Community Mental Health Service and Bunbury Hospital.
What follows is a summary of Dr Pascu's report. Dr Pascu details Ms Clemons' account of the alleged events, saying that she accepted aspects as described in the statement of material facts. She said that after the birth of her first child the accused said she had a weird sense of like a kaleidoscope radiating and remembered that her husband had told her that the child was born but she could not remember any of it.
The accused told Dr Pascu that she was admitted to the Mother and Baby Unit at King Edward Memorial Hospital after she was discharged and was referred to the Bunbury Mental Health Clinic as she was diagnosed with psychosis. She said that the accused remembered feeling depressed and unwell again and was admitted again to the Mother and Baby Unit at King Edward Memorial Hospital and after she was discharged went back to the Bunbury Mental Health Clinic for follow up.
Ms Clemons told Dr Pascu that she had an admission to Bunbury Hospital in December 2018 and could not remember a lot but became unwell again. The accused said that she was in hospital for about three weeks and asked for her lithium and Risperidone to be changed and continued to follow up with Bunbury Mental Health on quetiapine. She said that when she became pregnant a second time she was restarted on lithium which she was not happy about but took the lithium as she did not want to get sick again.
The accused told Dr Pascu that after she had had her second child in September 2020 she was again admitted to the Mother and Baby Unit at King Edward Memorial Hospital where she stayed for a couple of weeks and was continued on the lithium and was started on quetiapine 200 mg a day. She said that after the delivery she was alright apart from needing pain relief after having a caesarean section and did not have psychotic symptoms. After she was discharged the accused said that she went home and continued to see mental health in Bunbury and continued to take lithium and quetiapine and was okay. She said that she had some side effects from the medication so it was gradually reduced as she asked to eventually go off them. She said she was off the lithium and was okay for a few weeks and was discharged from mental health to continue treatment with her GP. She said that in hindsight she thought the lithium was holding her together but she did not like it as it made her feel sluggish and drowsy.
In relation to the alleged offences Ms Clemons told Dr Pascu that after the lithium was stopped her sleep started to deteriorate and maybe two days before the offences she did not sleep at all. She said that the night before the woundings her husband went to hockey training and she was home with the kids and had an urge to go out with the children and picked up the car keys. She said she was lucky her husband got home. She said that after she had put the kids to bed she could not sleep at all as her chest was racing and her thoughts were racing.
Ms Clemons told Dr Pascu she went to sleep and woke up at around 4.00 am when her husband was up for work. She said she had thoughts in her mind and started feeling like it was doomsday and she was praying. She had thoughts that glass bottles had to have water in them and that vitamins in plastic bottles were toxic. Her first child started helping her put plastic things in the bin.
The accused told Dr Pascu that she started throwing plastic things on the lawn, repeating over and over 'plastic is spastic'. She thought there was no electricity after some sort of a war and she put wood in her car. She was getting more and more elevated and ripped the headrest and the baby seats and threw them in the bin as they were plastic. She went to the neighbour in her pyjamas and was not sure why she went there.
She then ran home and then went back to the neighbour and told her not to call her husband. Her husband then came home and she was shocked. She heard music but the radio was not on and she had a thought that it was their last day on earth and somehow if she moved something everything would be eliminated.
She remembered being in the kitchen talking to her husband but it was like there was no sound. She remembered him saying she was sick and that they should go to the hospital. She heard a voice saying eliminate which she described as like a male voice but she did not know whose it was. She heard that voice saying eliminate about five times, was not sure what it meant and then she ended up stabbing her husband. She said she remembered a force knocking the knife out of her hand and then her husband was on top of her. She said when her husband was on top of her there were other voices as if his dad was speaking to Jordan telling him to stand up and fight.
She said afterwards she was admitted to Bunbury Hospital for about four weeks, went to a step down facility and then got bail. She said she was followed up with Bunbury Mental Health and was back on lithium and quetiapine and was much better. Ms Clemons said that she had been feeling okay in her mood and was better when she saw her children and when she talked to her mother. She denied any psychotic symptoms and although she experienced intermittent passive deliberate self‑harm thoughts she was adamant she did not want to harm others or herself.
In relation to past history Ms Clemons told Dr Pascu that she had mild depression in 2012 for which she took an antidepressant for one month. She was diagnosed with a psychotic episode in the post‑partum period after the birth of her first child in 2016. She was transferred from Bunbury Hospital to King Edward Memorial Hospital Baby Unit on 22 June 2016 with paranoid and religious delusions.
Ms Clemons described hearing a voice approximately 48 hours after delivering her son and at the time assumed it was a reaction to the epidural injection. Collateral information from her husband described a four day period of worsening sleep and increased activity and he reported the accused became very religious.
The accused's symptoms worsened over a few days prior to her attendance to Bunbury Hospital and she was transferred to King Edward Memorial Hospital, and described paranoid thoughts of the devil wanting to harm her baby, belief she was Mary, her husband was Joseph and her first child was Jesus Christ reborn. She also reported the devil and God were fighting in her house and entering through the television screen.
Ms Clemons reported she was receiving messages from God via Facebook and reported two instances where she felt a member of the public was trying to hurt her.
On admission to hospital the accused presented with thought disorder, thought blocking and tangentiality. She described paranoid religious beliefs, described that the devil and other paranormal demons were trying to harm her and that she was receiving protective messages from God. She was discharged home with a diagnosis of post‑partum psychosis as her mental state settled.
She was readmitted to King Edward Memorial Hospital on 9 September 2016 with relapse of her major mental illness following a referral from Bunbury Community Mental Health Service.
On admission to hospital her speech was slow and quiet, there was significant psychomotor retardation and she described her mood as not great. There was no evidence of formal thought disorder and the content of her thought was around feeling a failure and feeling scared by thoughts of wanting to die. There was no evidence of obvious psychotic symptoms.
During that admission her antipsychotic medication was increased and the antidepressant, which had been started four days prior to admission, was continued. As there was no evidence of improvement the benefits of ECT were discussed with her and she consented to a course. She received a total of 12 treatments with good improvement in her mood, was commenced on a mood stabiliser, lithium carbonate, and due to cardiac side effects following the ECT she was reviewed and cleared by the cardiology team.
Following the ECT course, on 21 October 2016 there were concerns regarding early manic relapse. The following day her mental state markedly deteriorated. She was returned to hospital by police and continued treatment as an involuntary patient until 3 November 2016.
She remained irritable and agitated, there were underlying persecutory delusions with grandiose underpinning concerning conspiracies to detain her in hospital, lack of trust and misidentification.

Her dose of lithium was increased over the next few days with additional anti‑agitation medications being prescribed, which led to a gradual improvement in her mental state. As her mental state improved she appeared euthymic, although her thought process continued to be slow at times.
She was discharged home on 5 November 2016 with a diagnosis of bipolar affective disorder, most current manic episode, severe with psychotic symptoms, on a combination of mood stabilising and antipsychotic medications. Follow up was to continue with Bunbury Community Mental Health Service and her GP.
She was later admitted to King Edward Memorial Hospital on 20 September 2020, four days after the birth of her second child, for monitoring of mental state and titration of a dose of lithium post‑partum. She was admitted as a voluntary patient.
She remained stable on medication and was discharged home on 29 September 2020 with a diagnosis of bipolar affective disorder in remission on a combination of lithium carbonate and quetiapine.
She continued treatment and follow up with Bunbury Community Mental Health Service and her GP.
In late 2020 she requested her medications be reduced and ceased and this occurred over a number of weeks. As she was stable in her mental state on 21 February 2021 her care was transferred to a GP on a small dose of the antipsychotic quetiapine to help with her sleep.
In the lead up to the offences the accused reported she ceased lithium a few months prior. Her husband reported that she ceased lithium earlier that year and was non‑compliant with a small dose of the antipsychotic medication quetiapine for approximately three months. He said that she appeared paranoid and pre‑occupied with plastics spoiling the water and elevated in her mood and affect for a few days prior to the incident. On the morning of the offences she appeared unwell, putting car seats on the lawn. Her husband reported that the incident appeared to have been precipitated by him suggesting a review by the mental health team at the clinic.
On admission to hospital after the offences the accused was described as restless, agitated, pressured in her speech, irritable and guarded with poor insight and impaired judgement. She reported to the admitting doctor that she had to complete her mission. She was admitted as an involuntary patient and medications were reintroduced.
As her mental state gradually improved her care was transferred to the Bunbury Step Up Step Down Unit after 32 days on 14 June 2021 to continue her recovery. She was discharged with a diagnosis of bipolar affective disorder, most recent manic episode, on a combination of mood stabiliser and antipsychotic medications on bail to live with a friend in Australind.
She continued follow up with Bunbury Community Mental Health Service and information from her treating doctor confirmed she has remained stable on the medication with no evidence of effective and psychiatric symptoms. She has been compliant with her psychiatric treatment and had regular follow ups from her GP.
Dr Pascu described the drug and alcohol history given to her by Ms Clemons, and concluded there was no evidence to suggest alcohol or substances were involved at the time of the alleged offences.
Dr Pascu also reported on Ms Clemons' personal and family history.
As to her mental state examination, Dr Pascu said that there is no evidence of psychomotor agitation or retardation and no evidence of abnormal movement being observed. There was no evidence of agitation or aggressive outbursts and evidence of appropriate sadness when talking about the offences.
The accused denied active thoughts or plans to harm herself, although admitted to passive thoughts of not wanting to be around following the offences. There was no evidence of any thoughts of harm to others, including her husband or the children.
There was no evidence of formal thought disorder and no evidence of current, active psychotic symptoms, delusions or hallucinations.
The accused had insight into her major mental illness and the benefits of treatment, and cognitively appeared intact with no evidence of attention, concentration or memory problems.
Dr Pascu diagnosed the accused with bipolar affective disorder, most recent episode manic with psychotic symptoms currently on treatment, in remission.
Dr Pascu concluded that the offences of unlawful wounding occurred whilst the accused was experiencing a relapse of her major psychiatric illness bipolar affective disorder manic episode with psychotic symptoms. She said that the accused developed a post‑partum psychotic illness with psychotic and affective symptoms and over the years the diagnosis was clarified to that of bipolar affective disorder with manic and some depressive episodes complicated by psychotic symptoms. She said that the course of ECT received for treatment of her depressive illness led to a manic relapse with psychotic symptoms which required reintroduction of a combination of mood stabilising and antipsychotic medications.
It appeared to Dr Pascu that the accused had been untreated since the transfer of care to her GP, which in her opinion had led to the deterioration in her mental state leading up to and at the time of the offences. Dr Pascu was of the opinion that the offences were more likely than not secondary to the relapse of the accused's major mental illness with affective and psychotic symptoms secondary to lack of treatment for a few months prior. In her opinion the incident occurred while experiencing a relapse of her illness with a manic episode with psychotic symptoms.
Dr Pascu was of the view that at the time of the alleged offences the accused was suffering from an acute, affective, paranoid psychotic episode as part of her underlying untreated major mental illness, namely bipolar affective disorder which fulfilled the criteria for a mental impairment under s 27 of the Criminal Code (WA).
Dr Pascu concluded that the accused was not deprived of the capacity to know what she was doing. She further concluded that she was deprived of the capacity to know that she ought not do the act due to her acutely impaired mental state and the impaired judgement. Finally, Dr Pascu concluded in her report that the accused was not deprived of the capacity to control her actions. She said that although due to the effective psychotic episode this capacity might have been impaired there was, in her view, no sufficient evidence to suggest that she was deprived of it.
Finally, Dr Pascu's report concluded with an assessment of the likely risk posed by the accused in the future and recommendations as to future treatment.
In her oral evidence Dr Pascu confirmed the contents of her report. She said that she agreed with the evidence of Dr Brett as to his diagnosis of bipolar affective disorder.
She understood from Ms Clemons that there was not a lot of input from her GP to closely monitor her medications and when Dr Pascu left messages to try and talk to her GP he was unavailable.
In retrospect it was Dr Pascu's view that the accused should have stayed on lithium.
Dr Pascu confirmed that she had not seen the footage from the body worn cameras before the trial but said that what she saw and heard in that footage was consistent with somebody who was experiencing an acute psychotic episode.
She confirmed that her report differed to that of Dr Brett in concluding that the accused had the capacity to control her actions. She said that psychiatrically for her to say that somebody was deprived of that capacity would require the person to experience command auditory hallucinations at the time of the offence. She said there was no evidence available to her when she wrote the report to say that the accused was experiencing a command auditory hallucination to hurt her husband. She said that the capacity was definitely impaired because of the psychosis but she simply did not have sufficient evidence to conclude that the accused lacked capacity to control her actions.
In cross‑examination she was taken to examples in her report of Ms Clemons hearing voices, particularly where she had said that she had heard a voice saying 'eliminate'. Dr Pascu said that this was not, in her view, a command hallucination to hurt the complainant.
However she said that if she had the information contained in Dr Brett's report that the accused had told Dr Brett that she had heard the term 'eliminate', which the accused took to mean kill and believed it was referring to her husband, then she would have concluded that it was more likely than not that the accused was deprived of the capacity to control her actions. She also said that having watched the footage from the body worn cameras she would probably be more inclined to say that the accused was more likely than not deprived of the capacity to control her actions as well.

General legal principles

Section 119 and s 120 of the Criminal Procedure Act apply. Section 119 provides that I must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. If any written or other law requires information or a warning or instruction to be given to the jury in certain circumstances, or prohibits a warning from being given to a jury in certain circumstances, then I must take the requirement or prohibition into account if those circumstances arise in the course of trial.
Section 120(2) provides that the judgment of the court must include the principles of law that have been applied and the findings of fact upon which the judge has relied. It is not enough to simply state the principles and the factual conclusions. The judgment must reveal the process of reasoning which makes clear how conclusions have been reached. Where, in the case of conflicting evidence, the evidence of one witness has been preferred over that of another I must state why that is the case.
The following principles have general application to this case.
The accused is presumed to be innocent of the charge against her. This presumption is not removed unless the court is satisfied beyond reasonable doubt of her guilt.
The burden of proof is on the prosecution throughout. The accused does not have to prove her innocence or anything else. She is not obliged to give evidence or call evidence in her defence. The burden of proof never shifts to the accused.
Each element of the offence must be proved beyond reasonable doubt. The words 'beyond reasonable doubt' bear their natural and ordinary meaning. Beyond reasonable doubt is the highest standard of proof known to the law. It is a high standard, but not an impossible standard.
My determination must be made solely on the evidence without speculation. Evidence is the testimony from the witnesses called, and the materials tendered in evidence as exhibits.
I must consider the evidence dispassionately and objectively, without sympathy or prejudice. I must approach the evidence in a rational and impartial way and put aside any sympathies or prejudices. I must not be concerned about the consequences of my verdict.
The questions, statements and comments of the counsel involved in this case are not evidence. Whilst I have paid careful attention to the submissions made on behalf of the State and the accused, I am conscious that the submissions of counsel are not evidence. Whilst it is proper for me to take into account those submissions, it is ultimately a matter for me as to the conclusions I reach from the evidence.
I am the judge of the law and of the facts. I must assess the truthfulness, accuracy and reliability of each of the witnesses called. I may accept the evidence of a witness in whole or in part or reject it in whole or in part. In doing so, I am bound to consider all of the evidence presented at trial. It is for me to decide what weight to be given to the evidence.
It is for me as the judge of the facts in this case to assess the credibility of the witnesses and to decide what weight is to be given to their evidence. Credibility involves honesty, but an honest witness may have a poor memory or might otherwise be mistaken. I must not only decide whether a witness is honest, but whether the evidence the witness gives is accurate and reliable.
I must not guess or speculate about matters which are not in evidence, or look for theories which are not supported by the evidence.
The accused has a right to silence. That right commenced from her arrest and continues through the trial. The accused was not obliged to speak to the police or give evidence at her trial, but she did elect to give evidence and adduced other evidence. I am conscious of the fact that despite the election of the accused to give and call evidence at her trial she bears no onus of proof.
I cannot draw an inference of guilt, that is, an inference adverse to the accused, unless it is the only inference reasonably open on the facts.

Elements of the offence

The State must prove each and every element of the alleged offence beyond reasonable doubt.
The date and place alleged in the indictment are not elements of the offence and do not have to be proved beyond reasonable doubt. The elements the State must prove in each charge are as follows:
(i)Identity.
(ii)That Jordan William Clemons was wounded. A person is wounded if their skin is broken so as to cause them to bleed. The prosecution must prove beyond reasonable doubt that the complainant received an injury where the continuity of the skin was broken through the full thickness so that it bleeds. It must be an injury which breaks the skin and penetrates below the epidermis.
(iii)That Rebecca Lee Clemons caused the wound to Mr Clemons. The question of causation for me to decide is not a philosophical or a scientific question but a question to be determined by me applying my common sense to the facts as I find them, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.
(iv)That Rebecca Lee Clemons caused the wound unlawfully. In this context unlawful means prohibited by law, or, to put it another way, contrary to law and not excused.
If all of those elements are proved beyond reasonable doubt I must consider the circumstance of aggravation, namely that the accused was in a family and domestic relationship with Jordan William Clemons. A family and domestic relationship includes a relationship between two people who are married to each other. In this case there is no issue that the accused and Mr Clemons were married to each other at the relevant time.

The issues

There is no dispute from the accused that all of these elements and the circumstance of aggravation have been proved beyond reasonable doubt. The issue in this trial is whether the accused has established on the balance of probabilities that she is not criminally responsible for unlawfully wounding Mr Clemons on account of unsoundness of mind. In determining that issue I am required to determine each of the following matters:
(i)At the time the accused wounded the complainant, was she mentally impaired?
(ii)If the accused was mentally impaired, did her mental impairment deprive her of the capacity to understand what she was doing when she wounded Mr Clemons or the capacity to control her actions which wounded Mr Clemons or the capacity to know that she ought not to do the acts which constituted the wounding?
(iii)Every person is presumed to be of sound mind and to have been of sound mind at any time which is in issue, until the contrary is proved: s 26 of the Criminal Code. The accused has the burden of proving that she was not of sound mind at the time she did the acts which are alleged to constitute these two offences. The accused must prove that she was not of sound mind on the balance of probabilities: R v Porter [1933] HCA 1; (1933) 55 CLR 182.

Insanity - principles

Section 27 of the Criminal Code is a follows:
27.Insanity
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(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.
Each of the prosecution and defence accept that the evidence establishes that s 27(1) is relevant and that the accused lacked capacity in at least one, if not two aspects.
'Mental impairment' is defined in s 1(1) of the Criminal Code. It includes mental illness, which in turn 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.
In The State of Western Australia v Siddique [No 2] [2016] WASC 358 [47], Jenkins J considered what is meant by the expression 'disease of the mind' and a mental impairment and referred to comments made by King CJ in Radford v The Queen (1985) 20 A Crim R 388, 396. The then Chief Justice of the Supreme Court of South Australia said:
(1)'disease of the mind' is synonymous with 'mental illness';
(2)a temporary disorder or disturbance of an otherwise healthy mind caused by external factors is not properly regarded as a disease of the mind;
(3)major mental illness or psychoses such as schizophrenia are clearly diseases of the mind as are physical diseases, such as psychomotor epilepsy and arteriosclerosis, when they affect the soundness of the mental faculties;
(4)disease of the mind is to be distinguished from 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self‑control and impulsiveness'; and
(5)in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called ' "defect of reason" in the M'Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli'.
Her Honour went on to say that s 27 was amended after the High Court's decision in R v Falconer [1990] HCA 49; (1990) 171 CLR 30 and that the amendments to the Criminal Code were consistent with King CJ's statement of principles in Radford.
What is a mental illness is a question of law for the judge. Whether or not the facts disclose a state of mental illness is a question for the trier of fact.
One of the capacities which the accused says she lacked is the capacity to control her actions.
In The State of Western Australia v Strabach [No 2] [2012] WASC 227, Commissioner Sleight considered the meaning of the phrase and said at [64] - [65]:
64What is meant by the expression 'the capacity to control her actions' is not defined in the Criminal Code. In the High Court decision of R v Falconer [1990] HCA 49; (1990) 171 CLR 30, Mason CJ, Brennan and McHugh JJ [13], and Deane and Dawson JJ [12] referred to an automatism due to an unsoundness of mind. An automatism is a state of mind in which a person's actions occur independently of his or her conscious will; that is, involuntarily. A classic example of an automatism often given is a person sleepwalking. However, the High Court in R v Falconer was dealing with the question of an automatism and in my opinion was not seeking to define the full meaning of the expression 'capacity to control' in s 27. Murray J in The State of Western Australia v Hone [2007] WASC 64 [22] stated that the capacity to control meant the capacity to 'decide whether or not to perform the acts which caused' the offending behaviour.
65I believe the words 'capacity to control' must be given their ordinary natural and everyday meaning. The Oxford dictionary defines 'control' as meaning 'the power of restraining, especially self restraint'. The loss of 'capacity to control' must be a significant impairment of a person's mental processes so as to lose the power or control of self‑restraint. Whether there is a loss of such a capacity is a question of degree. It is clearly relevant in deciding whether a person has lost the power of self restraint (that is the capacity to control his or her actions) to take into account whether the person is suffering from delusional beliefs and thinking; and the extent to which the person is subject to auditory hallucinations.
(citations omitted)

The accused also says that she lacked capacity to know that she ought not do the act.
In Porter at (189) ‑ (190), Dixon J said:
We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.
In Evans v The State of Western Australia [2010] WASCA 34, McLure P considered the common law principles and said that there is no suggestion of any material distinction between the common law and s 27 on this point.
Her Honour said at [30] ‑ [31]:
30The High Court in Stapleton elsewhere (367) identified the test as being whether at the time of the commission of the act the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act.
31There is no suggestion of any material distinction between the common law and s 27 on this point. Thus the real issue for the jury in this case was whether the appellant had established on the balance of probabilities that at the time of the killing his mental impairment resulted in a complete incapacity to reason as to what is right or wrong according to ordinary standards. The term 'know' means 'understand', 'appreciate' or 'comprehend'. An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from understanding that he (or she) ought not do the act. Knowledge (short of understanding) that to kill is punishable by law does not prevent such a finding. Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct. Whether an act is right or wrong is determined by reference to an objective standard. The question is whether the appellant had a complete incapacity to reason as to what was, by that objective standard, right or wrong. In this case the appellant's subjective belief was relied upon by the experts to support the conclusion that he was in a psychotic state that prevented rational reasoning on right or wrong.
Wheeler JA (Owen JA agreeing) also discussed the common law principles and then said:
59The authority most directly on point in this context is Stapleton v The Queen (1952) 86 CLR 358. In that case, having regard to the state of the evidence, it seems unlikely that there would have been any practical difference in result whether the jury had been directed in terms of a capacity to understand that an act was wrong according to ordinary standards, or to understand that it was contrary to law. It appears that that was the reason why the court would have 'hesitated' to order a new trial simply because the jury had been directed that the test of insanity was whether the accused knew that firing a shot at another person was against the law (at 375). However, the court made it clear that such a direction was erroneous (at 367 ‑ 368).
60It is not easy to summarise the detailed discussion of authority in Stapleton in a way which is capable of being fashioned into an appropriate direction in every case of insanity. However, the principles extracted from that discussion appear to focus upon two issues. First, the ability to know that one 'ought not' to do an act or make an omission is a capacity to know that one 'ought not' to do it according to ordinary standards of right and wrong, rather than knowledge that the act is unlawful. As the High Court observed, from a practical point of view it often may not matter much, because in relation to serious offences the two ideas 'are not easily separable' (at 375). However, in cases where, as here, the distinction may arise, it should be made. The second principle is that the capacity which must be found to be lacking is not merely a capacity to appreciate, in some abstract sense, that others would view the act as wrong. Rather, it is a capacity of the particular accused either to discern the difference between moral good and evil, or to 'think rationally' of the reasons which would lead ordinary people to consider the act to be right or wrong.
61In my view, the question in this case made it imperative that her Honour explain to the jury the two principles which I have described above. For completeness, I would add that it was not, in my view, necessary for her Honour to adopt the formula contended for by ground 2(b) of the grounds of appeal. Although a direction as to whether the accused was capable of reasoning 'with some moderate degree of calmness' or, as it was put in Porter, with 'a moderate degree of sense and composure' is sanctioned by authority, it may in some cases, in my view, run a risk of confusing the jury. That is because these offences generally take place in circumstances in which the accused is, plainly, not composed and not calm. The relevant issue is not whether the accused is, in fact, at the particular time, reasoning calmly and rationally. The question is whether the accused's mental condition is such that the accused is incapable of thinking in a rational way.
(citations omitted)
In Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 the Court of Appeal considered the significance of uncontradicted expert psychiatric opinion where the issue of insanity had been raised by the accused. At [124] ‑ [125] Miller J said:
124Neither a jury nor a judge sitting alone are bound to accept and act upon expert evidence. But where there is no evidence to contradict that evidence, a verdict cannot be given contrary to it. The principles were well summed up by Roden J in Hall (1988) 36 A Crim R 368, where a number of relevant cases were reviewed. Roden J said:
Juries are not bound to accept and act upon expert evidence. Nevertheless they are not entitled to disregard it capriciously. These two propositions have found expression and support in a line of authorities developed in England with regard to the defences of insanity and diminished responsibility.
In Rivett (1950) 34 Cr App R 87, Lord Goddard CJ, said (at 94):
'The second matter for emphasis is that it is for the jury and not for medical men of whatever eminence to determine the issue. Unless and until Parliament ordains that this question is to be determined by a panel of medical men, it is to a jury, after a proper direction by a judge, that by the law of this country the decision is to be entrusted.
The Court of Criminal Appeal was there dealing with medical evidence relating to a defence of insanity.
Eight years later, when dealing with a defence of diminished responsibility, Lord Goddard showed the other side of the coin, in Matheson [1958] I WLR 474; 42 Cr App R 145, saying (at 478; 151):
'While it has often been emphasised, and we would repeat that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors' evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be "a true verdict in accordance with the evidence",'
In Bailey (1977) 66 Cr App R 31, another diminished responsibility case, Lord Parker CJ said (at 32):
'The court has said on many occasions that of course juries are not bound by what the medical witnesses say, but at the same time they must act on evidence, and if there is nothing before them, no facts and no circumstances shown before them which throw doubt on the medical evidence, then that is all that they are left with, and the jury, in those circumstances, must accept it.'
In both Matheson and Bailey, manslaughter verdicts were substituted for jury verdicts of guilty of murder, on the basis that the medical evidence was 'all one way', and there was no other material which would justify its rejection. It was otherwise in Walton [1978] AC 788; 66 Cr App R 25. The Privy Council was there considering a murder conviction where a diminished responsibility defence had been rejected. In the judgment, which was delivered by Lord Keith of Kinkel, there are observations that 'the jury were entitled to regard (the medical evidence) as not entirely convincing', and 'their Lordships have come to be of opinion that in all the circumstances the jury were entitled not to accept as conclusive the expression of opinion by Dr Bannister'. After a consideration of both Matheson and Bailey, the following statement of principle was made:
'These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the defendant before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence.'
The effect of those decisions is accurately summarised in Professor Smith's commentary on Walton in [1977) Crim LR 747 at 748:
'If the medical evidence is all one way and in favour of the accused and there is nothing in the facts and surrounding circumstances which could lead to a contrary conclusion, then a verdict against the medical evidence cannot be sustained. In the present case there were facts and circumstances in addition to the medical evidence and the jury was therefore entitled to reject that evidence'. (370 ‑ 371)
125Allen J summarised the position as follows:
There is no rule of law that a verdict of guilty will be quashed as unsafe in any case in which the verdict is inconsistent with medical evidence called for the accused - even where no medical evidence has been called for the Crown. On the other hand there is no rule of law that an appellate court will not quash such a verdict - refusing to do so because it is open to a jury to reject the opinion of any expert witness. Each case is unique. The totality of the evidence must be weighed: Walton (1978] AC 788; 66 Cr App R 25. In assessing medical evidence a multitude of factors must be taken into account - including the standing of the expert, whether he expresses his opinion with conviction or with hedging, whether the opinion expressed in its nature seems reasonable or fanciful, whether it incorporates assumptions not founded upon the evidence given, and whether the evidence given, upon which the opinion is based, is to be believed. It is clearly settled that it can be unreasonable for a jury to reject medical testimony: Walton; Chester (1982] Qd R 252; 5 A Crim R 296. (380 ‑ 381)
(citations omitted)
In The State of Western Australia v Djurasovic [2021] WASC 466, Hall J said at [76]:
Of course, in any particular case it is not sufficient to merely establish that the accused had a mental illness at the time of the alleged offence. It is the degree and effect of that illness upon the relevant capacities that is important.
His Honour went on to say at [77] that:
Steytler P also noted in Hone that in assessing the actions of an accused person it may be important to avoid the danger of applying the standards of common sense and rationality used by sane rather than mentally ill people. Hone [7].

Findings

Both psychiatrists agree that, at the relevant time, the accused lacked capacity to know that she ought not do the act. At the time of writing the reports there was some disagreement between the psychiatrists as to whether the accused lacked the capacity to control her actions. Dr Brett was of the view that she did whereas Dr Pascu was of the view that she did not lack that capacity.
However, ultimately during the course of her oral testimony Dr Pascu was of the view that, as a consequence of a command auditory hallucination about which Dr Brett had been informed and as a result of viewing the footage from body worn cameras, it was more likely than not that the accused was deprived of the capacity to control her actions.
What is evident from a combination of what is contained in the reports, the oral testimony of both Dr Pascu and Dr Brett and the testimony of the accused is that the accused began suffering from a serious mental illness sometime after the birth of her first child in 2016. I find that some time shortly thereafter she began suffering from bipolar affective disorder which at various stages thereafter was in remission after being placed on medication.
At the reduction and complete cessation of her use of prescription medication, in particular lithium and Seroquel sometime shortly prior to the offences occurring the accused again suffered from bipolar affective disorder.
At the time of the commission of the offences the accused was suffering from bipolar affective disorder. From a combination of what is contained in the reports of both psychiatrists, from their oral testimony, from the testimony of the accused and from the footage from the body worn cameras I find that the accused, at the time of the commission of the offences, was suffering from acute affective, paranoid psychotic episode as part of her underlying untreated major mental illness, namely bipolar affective disorder.
I find that this illness is a mental impairment as defined in s 1(1) of the Criminal Code.
The accused formed delusional beliefs about a doomsday scenario occurring. Her mania and psychosis made her increasingly impulsive and unable to control herself. She believed that World War III was imminent, was preparing for doomsday and had paranoid ideas about her husband and was concerned that if he took her to hospital she would be prevented from doing her preparations for the doomsday scenario she envisaged and for which she believed she was on a mission. I find that, consistent with the evidence of Dr Brett, she was also angry at this possibility, but that in fact, her anger was caused by her view that she was being thwarted in her preparation by her husband.
Both psychiatrists were of the view that at the time of the offences the accused was deprived of the capacity to know that she should not do what she did. I accept that evidence and am fortified in that view by the footage from the body worn cameras, which clearly shows the accused in a psychotic state immediately after she wounds her husband.
I am also satisfied on the balance of probabilities that, notwithstanding the initial disagreement by Dr Pascu as to Dr Brett's conclusion, at the time of the offences the accused was deprived of the capacity to control her actions. As I have said, ultimately Dr Pascu came to the view that, on the balance of probabilities, the accused did lack that capacity and I accept her evidence and that of Dr Brett in that regard. The command auditory hallucinations about which Dr Pascu spoke as being a possible precondition for making such a finding are, in my view, also evident from what one hears on the body worn camera footage.
I am therefore satisfied on the balance of probabilities that at the time of the offences the accused was deprived of the capacity to control her actions and deprived of the capacity to know that what she was doing was wrong.
It therefore follows that the accused must be found not guilty on account of unsoundness of mind in respect of each of the charges she faces.
Having found the accused not guilty on the basis of unsoundness of mind and given that the offence is an offence included in the first schedule to the Criminal Law (Mentally Impaired Accused) Act 1996 (WA), it follows that a custody order must be made. The effect of that order is that the accused will be detained in an authorised hospital, a declared place or a prison until release by order of the Governor: s 24.
A report by the Mentally Impaired Accused Review Board addressing issues such as the degree of risk to the safety of the community, the suitability of continuing treatment in the community and the likelihood of compliance with conditions will be a necessary precondition before the accused can be released from the custody order.

Orders

I make the following orders:
1.That on each of counts 1 and 2 on indictment BUN 109 of 2021 the accused is not guilty on account of unsoundness of mind.
2.That there be a custody order in respect of the accused pursuant to s 21 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
TM
Associate to Judge Massey
3 APRIL 2023