The State of Western Australia v Daly
[2019] WASC 386
•29 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DALY [2019] WASC 386
CORAM: MCGRATH J
HEARD: 2 - 5 SEPTEMBER 2019
DELIVERED : 29 OCTOBER 2019
FILE NO/S: INS 202 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
BEN WILLIAM CEDRIC DALY
Accused
Catchwords:
Criminal law - Trial by Judge alone - Murder - Insanity - Whether accused was mentally impaired - Whether accused lacked capacity to control actions - Whether accused lacked capacity to know that he ought not to do the act - Whether accused was voluntarily intoxicated
Legislation:
Criminal Code (WA), s 1, s 26, s 27, s 28, s 268, s 270, s 279
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 21, s 24
Criminal Procedure Act 2004 (WA), s 93, s 118, s 120, s 126, s 142
Evidence Act 1906 (WA), s 32, s 106R
Result:
Accused found not guilty on account of unsoundness of mind
Custody order made
Category: B
Representation:
Counsel:
| Prosecution | : | Mr B E F Tooker |
| Accused | : | Mr S D Freitag SC |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | David Manera |
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
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Lang [No 2] [2016] WASC 206
The State of Western Australia v Marotta [2018] WASC 329
Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254
MCGRATH J:
Mr Daly has been indicted on one count that pleads that on 19 November 2016 at Coolbellup he murdered Ian Michael Baz‑Bosch contrary to s 279 of the Criminal Code (WA).
Mr Daly made an application for a trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA). On 26 August 2019, Corboy J ordered that Mr Daly be tried by judge alone.[1]
[1] Criminal Procedure Act 2004 (WA), s 118.
At the commencement of Mr Daly's trial, a plea of not guilty on account of unsoundness of mind was entered by Mr Daly.[2] The State does not accept that the accused was of unsound mind at the time of the incident.
[2] Criminal Procedure Act 2004 (WA), s 126(1)(d), s 142.
Therefore, the issue at trial was whether Mr Daly could prove on the balance of probabilities that he is not criminally responsible for the killing of the deceased on account of unsoundness of mind. That issue requires the determination of the following matters:
(1)Was Mr Daly mentally impaired at the time he did the act that caused the death of the deceased?
(2)If Mr Daly was mentally impaired at the relevant time, did his mental impairment deprive him of one of the capacities, relevantly, to know that he ought not to do the act or to control his actions?
(3)If so, does the defence of insanity not apply because Mr Daly intentionally caused himself to become intoxicated?
For the following reasons, I am satisfied that it is more likely than not that Mr Daly was mentally impaired at the time he caused the death of the deceased. The mental impairment was of such a nature and intensity as to deprive Mr Daly of the capacity to know that he ought not to do the act that caused the death of the deceased and, further, deprived Mr Daly of the capacity to control his actions. I am also satisfied that it is more likely than not that Mr Daly was not intentionally intoxicated at the time he killed the deceased. For that reason, Mr Daly cannot be considered criminally responsible for his actions and must be found not guilty on account of unsoundness of mind.
Accordingly, I am required to make a custody order pursuant to s 21(1) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). Therefore, Mr Daly will be detained until released by an order of the Governor.[3]
[3] Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 24.
In these reasons, I will consider the following:
(1)The agreed statement of relevant events, the admissions made by Mr Daly pursuant to s 32 of the Evidence Act1906 (WA) and the evidence received at trial.
(2)The relevant legal principles.
(4)The psychiatric evidence.
(5)An assessment and the findings.
Admissions & Agreed Events
The accused made admissions pursuant to s 32 of the Evidence Act in the following terms: [4]
(1)The deceased victim in relation to this matter is Mr Ian Michael Baz‑Bosch (Mr Baz-Bosch).
(2)On Saturday, 19 November 2016 at Coolbellup Mr Daly stabbed Mr Baz‑Bosch in the neck with a knife.
(3)That stab wound was the cause of Mr Baz‑Bosch's death.
[4] Exhibit 3: Formal admission by Mr Daly pursuant to s 32 of the Evidence Act1906 (WA) dated 22 August 2019.
Both counsel for the State and the accused agreed to rely upon an agreed statement of relevant events.[5] In addition, given that the agreed statement of relevant events made reference to statements and material from the State's brief of evidence, a bundle of agreed materials was received as an exhibit.[6] During the trial the parties relied upon particular statements and material that formed part of the bundle of agreed materials.
[5] Exhibit 16: Statement of Relevant Events.
[6] Exhibit 4: Bundle of Agreed Materials.
The State called five witnesses to give evidence, those being Angela Burnby,[7] DG,[8] Elle Joy,[9] Detective Sloan,[10] the investigating officer, and Dr Steven Patchett,[11] Consultant Forensic Psychiatrist, who was called by the State in rebuttal to the defence's expert witness. At trial, I ordered that the witness Ms DG have her name supressed for reasons personal to her.[12] Mr Daly elected not to give evidence on his own behalf but called evidence from Dr Victoria Pascu, Consultant Forensic Psychiatrist.[13] In addition, exhibits were received during the trial including the CCTV footage that recorded the movement of the accused and the deceased and the infliction of the fatal injury on the deceased.[14]
[7] ts 89 ‑ 108, 2 September 2019.
[8] ts 108 ‑ 122, 2 September 2019.
[9] ts 123 ‑ 142, 2 September 2019.
[10] ts 143 ‑ 144, 2 September 2019.
[11] ts 221 ‑ 249, 3 September 2019.
[12] ts 70, 2 September 2019.
[13] ts 151 - 220, 3 September 2019
[14] Exhibits 6 - 12.
With respect to the agreed statement of relevant events, s 93 of the Criminal Procedure Act 2004 (WA) relevantly provides:
(1)If an accused pleads not guilty to a charge on account of unsoundness of mind and the judge is satisfied ‑
(a)that the only fact in issue between the accused and the State is whether, under TheCriminal Code section 27, the accused is not criminally responsible for an act or omission on account of unsoundness of mind; and
(b)that the prosecutor consents, and the accused does not object, to the judge doing so; and
(c)that it is in the interests of justice to do so,
the judge ‑
(d)may decide the issue referred to in paragraph (a) on any evidence and in any manner the judge thinks just; and
(e)for that purpose, may ascertain any fact by the verdict of a jury or otherwise; and
(f)may find the accused not guilty of the charge on account of unsoundness of mind; and
(g)if such a finding is made and a jury has been sworn to give a verdict on the charge, must discharge the jury from giving its verdict on the charge.
(2)Subsection (1) is in addition to and does not affect the operation of section 146.
Given that the parties consented to the statement of relevant events being relied upon, I am required to determine whether it is in the interests of justice to decide the issue in reliance on the agreed events. I am satisfied that it is in the interests of justice to receive the statement of relevant events as establishing part of the factual circumstances relevant to the determination of the issues in this case. As I have observed, the parties also rely upon a bundle of agreed materials that formed part of the State's brief of evidence. The relevant events are thereby supplemented by the contents of the tendered statements, the oral testimony of the witnesses and the exhibits received.
The agreed statement of relevant events is in the following terms:
Background
1.Ian Michael Baz-Bosch was born in Reynella, South Australia, on 14 July 1973. At the time of his death he was 43 years of age. Mr Baz-Bosch married Emerald Baz in 2007. They had two children, Malakai (DOB 23/3/06) and Temperance (DOB 26/9/11). In 2013 Ian and Emerald separated, but never divorced. At the time of his death Mr Baz-Bosch was single and living at 27 Leontes Way, Coolbellup.
2.Ben William Cedric Daly was born in Fremantle on 18 March 1989. Mr Daly's father left Australia and moved to New Zealand when Mr Daly was very young (approximately 2 years of age). Mr Daly was raised by his mother, Clancy Watson. He has a half sister by the name of Paula Daly (DOB 30/5/80). Mr Daly grew up in Coolbellup where he lived at 7 Wella Court. He attended Koorilla Primary School and then went to Hamilton Senior High School. He obtained a trade after school but at the time of Mr Baz-Bosch's death was unemployed and living at home with his mother.
The events of 19 November 2016
3.Malakai Baz-Bosch was to attend a friend's 10th birthday party at Adventure World on Saturday 19 November 2016. The party started at 12pm. An arrangement was made between Emerald and Ian that Emerald would drop Malakai off at Ian's place in Coolbellup at about 10am.[15] At about 7:10am Mr Baz-Bosch set out from his home in Coolbellup to go to the shops to buy a birthday card and a fruit platter for the party. He was seen by a neighbour walking towards Coolbellup Avenue between 7:10am and 7:15am.[16]
[15] Statement of Emerald Baz dated 24 January 2017 [124] - [136]: Bundle of Agreed Materials, 1.
[16] Statement of Robert Witalik dated 8 December 2016 [10] - [23]: Bundle of Agreed Materials, 35.
4.Mr Baz-Bosch walked to a bus stop on Coolbellup Avenue. He was picked up by Transperth bus 2124 at 7:21am and was dropped off near the Coolbellup shops, on the corner of Coolbellup Avenue and Cordelia Avenue, at 7:23am.[17] His intention was to transfer to another bus. To do this he needed to get to a bus stop not far away on Cordelia Avenue.
[17] Exhibit 6: CCTV footage from Bus 2124; Statement of Edouard Easton dated 14 April 2017: Bundle of Agreed Materials, 38.
5.Ben Daly left the family home at 7:13am on the morning of Saturday 19 November 2016.[18] From there he walked to the Coolbellup shops. It takes about 8 minutes to walk from 7 Wella Court to the shops.[19] At 7:22am Ben Daly was captured on CCTV footage walking inside the Coolbellup Shopping Centre.[20] He walked along the western plaza, then turned left and walked down the northern plaza. At 7:23am he left the shopping centre via the North Entry and turned left, heading in the direction of Coolbellup Avenue.
[18] Exhibit 7: CCTV footage from 5 Wella Court, Coolbellup.
[19] Statement of Nickolas Peake dated 4 May 2017 [42] - [47]: Bundle of Agreed Materials, 210; Strava Report: Bundle of Agreed Materials, 217.
[20] Exhibit 8: CCTV footage from Coolbellup shopping centre.
6.At 7:23am CCTV footage from the BWS liquor store shows Ben Daly walking towards Coolbellup Avenue, in the direction of the bus stop that Ian Baz-Bosch used to alight from Bus 2124.[21]
[21] Exhibit 9: CCTV footage from BWS liquor store.
7.It is not known what happened between 7:24am and 7:29am.
8.At 7:29am Mr Baz-Bosch walks towards the bus stop on Cordelia Avenue. He sits down under the bus shelter.
9.Approximately 40 seconds later Ben Daly walks towards the bus stop on Cordelia Avenue. He comes from the same direction as Mr Baz-Bosch. Mr Daly walks up to the bus stop, checks the bus timetable and then stands on the eastern side of the bus stop. Mr Daly is seen wearing heavy clothing, including a big jacket. Whilst standing at the bus stop he obtains a knife from his clothing, holds it in his right hand and stabs Mr Baz-Bosch once in the neck. This happens at 7:31am.[22]
[22] Exhibit 10: CCTV footage from City of Cockburn library.
10.Mr Daly then runs off with the knife in his hand. He runs towards Coolbellup Avenue and then around the corner in a southerly direction, towards his home. At 7:36am, about five and a half minutes after the stabbing, Ben Daly walks into Wella Court and towards his home at 7 Wella Court.[23]
[23] Exhibit 11: CCTV footage from 5 Wella Court, Coolbellup.
11.Ian Baz-Bosch was stabbed as he was sitting at the bus stop. After being stabbed he stumbled across Cordelia Avenue and made his way to the shopping centre. He managed to get as far as the West Entry, where he encountered a number of civilians who attempted to render first aid.[24]
[24] See the statements of Barry Anderson dated 21 November 2016: Bundle of Agreed Materials, 71.
12.The first call to Emergency Services was made at 7:33am.
13.The first ambulance on the scene arrived at 7:43am.[25] When the ambulance officers got to Mr Baz-Bosch they could see that he had lost a lot of blood.[26] Upon examination the ambulance officers found a wound on the right hand side of his neck, just above the collarbone. The wound was about 5cm in length and was quite deep. The wound was not bleeding at the time.[27]
[25] Statement of Aleisha Walker dated 14 February 2017 [9]: Bundle of Agreed Materials, 79; St John Ambulance Patient Care Record 16157257: Bundle of Agreed Materials, 90.
[26] Statement of Lindsay Cameron dated 17 February 2017 [13] - [15]: Bundle of Agreed Materials, 84.
[27] Statement of Lindsay Cameron dated 17 February 2017 [19] - [21]: Bundle of Agreed Materials, 84.
14.Mr Baz-Bosch was taken by ambulance to Fiona Stanley Hospital. The ambulance departed the scene at 7:57am and arrived at the hospital at 8:03am.[28]
[28] Statement of Aleisha Walker dated 14 February 2017 [32] - [33]: Bundle of Agreed Materials, 79; St John Ambulance Patient Care Record 16157257: Bundle of Agreed Materials, 90.
15.Mr Baz-Bosch underwent emergency surgery at Fiona Stanley Hospital and was then transferred to the Intensive Care Unit on life support. Initial brain stem testing was performed on 20 November 2016. A second set of brainstem testing was performed on 21 November 2016 with brain death confirmed at 10am that day.[29] Dr Goh certified life extinct on 22 November 2016 at 3:36pm.[30]
[29] Fiona Stanley Hospital Discharge Summary: Bundle of Agreed Materials, 99.
[30] Mortuary Admission Form: Bundle of Agreed Materials, 102.
16.A post-mortem examination was performed by Dr Victoria Kueppers on 25 November 2016. In the opinion of Dr Kueppers, the cause of death was "complications of penetrating sharp force injury (stab wound) to the neck".[31]
[31] Confidential Report to the Coroner dated 2 December 2016, 1: Bundle of Agreed Materials, 104.
17.The full chronology of events captured on the CCTV footage at 5 Wella Court, Coolbellup is this:[32]
[32] Exhibit 12: CCTV footage from 5 Wella Court, Coolbellup.
Time Event 7:13am Ben Daly leaves home to walk to the shops. 7:21am Clancy Watson leaves in her red car to pick her daughter Paula Daly up from rehab. 7:36am Ben Daly returns to Wella Court after the stabbing with his jacket over his arm. 8:31am Clancy Watson returns to Wella Court in her red car with Paula. 11:31am Ben Daly leaves 7 Wella Court carrying a small bag. 1:32pm Ben Daly returns to 7 Wella Court, this time without the bag.
Police investigation
18.The first police officers to arrive at the scene were Sergeant Connor Magee and Constable Brian Macdonald. They arrived at about 7:45am. Sergeant Magee assumed the role of incident controller and established a Protected Forensic Area (PFA). As part of his role he located the victim's ID from inside his backpack. A short time later he handed control of the scene and the investigation over to Fremantle Detectives.[33]
[33] Statement of Alan Connor Magee dated 14 June 2017 [2] - [12]: Bundle of Agreed Materials, 93.
19.Forensic officers arrived at the scene at 9:14am.[34] Senior Constable Eksteen commenced a video recording of the scene at about 10:11am.[35]
20.On Monday 21 November 2016 officers from the Major Crime Squad, now known as the Homicide Squad, took over carriage of the investigation.[36]
21.On Tuesday 22 November 2016 the Major Crime Squad executed a Criminal Investigation Act search warrant at 7 Wella Court, Coolbellup. The people present during the warrant were Ben Daly, his friend Elle Joy and his mother Clancy Watson.[37]
22.At the completion of the search Ben Daly was un-arrested and the investigation continued.[38]
23.On Wednesday 28 December 2016 Ben Daly was arrested on suspicion of murder and interviewed at the offices of the Major Crime Squad. During the interview he made "no comment".[39] He was not charged and the investigation continued.
24.On Tuesday 17 January 2017 the Major Crime Squad executed a Criminal Investigation Act search warrant at 7 Wella Court, Coolbellup. During the search Detective First Class Constable Samuel Bosustow found a pair of Converse boots buried in the backyard.[40] These shoes are the shoes that Mr Daly was wearing when he stabbed Mr Baz-Bosch.
25.As part of the police investigation, a listening device was deployed in the house at 7 Wella Court, Coolbellup. On 30 March 2017 Ben Daly had a conversation with Bradley Hall. Bradley Hall was a friend of his who was living with him at the time. The conversation between the two of them was recorded by the listening device. During the conversation Mr Daly talked about hunting and killing paedophiles.[41]
26.At 7:25am that next day, 31 March 2017, police officers from the Major Crime Squad attended 7 Wella Court and arrested Ben Daly for the murder of Ian Baz-Bosch.[42] From there he was taken to the offices of the Major Crime Squad where he was formally interviewed for a second time. Again he made "no comment".[43]
27.Mr Daly was charged with murder that day and remanded in custody. Initially he was on remand at Hakea Prison. However, on 7 September 2017 he was transferred to the Frankland Centre. He has been detained there ever since.
[34] Statement of Tashwhille Duwayne Eksteen dated 3 October 2017 [7]: Bundle of Agreed Materials, 147.
[35] Statement of Tashwhille Duwayne Eksteen dated 3 October 2017 [11]: Bundle of Agreed Materials, 147; Exhibit 13: Video recording of scene.
[36] Statement of Dean Thomas Lampard dated 7 November 2018 [2] - [3]: Bundle of Agreed Materials, 103.
[37] Statement of Dean Thomas Lampard dated 7 November 2018 [7] - [10]: Bundle of Agreed Materials, 103.
[38] Statement of Dean Thomas Lampard dated 7 November 2018 [11]: Bundle of Agreed Materials, 103.
[39] Video recording of police interview 28 December 2016: Bundle of Agreed Materials, 331.
[40] Statement of Samuel John Bosustow dated 17 April 2017: Bundle of Agreed Materials, 191.
[41] Exhibit 14: LD product 31 March 2017.
[42] Statement of Ray Robert Flanagan dated 8 June 2017 [99] - [109]: Bundle of Agreed Materials, 194.
[43] Video recording of police interview 31 March 2017: Bundle of Agreed Materials, 340.
Relevant legal principles
Judge alone trial
In a trial by judge alone the judge is required to state the principles of law that have been applied in coming to a verdict.[44] The fundamental principles in any criminal trial are the presumption of innocence and that the prosecution bears the onus of proving each of the elements of the offence charged beyond a reasonable doubt. If the State does not prove each element beyond a reasonable doubt then the charge is not proven and the verdict must be one of not guilty.
[44] Criminal Procedure Act 2004 (WA), s 120(2).
To the extent that it is necessary to draw inferences as to essential facts from the evidence, it is important to consider whether there are possible alternatives consistent with innocence. It is not possible to draw an inference adverse to an accused person unless it is the only reasonable inference to be drawn. This is an aspect of the requirement that a charge must be proved beyond a reasonable doubt.
The State relied upon expert witness Dr Patchett and the defence relied upon expert witness Dr Pascu. I approach my assessment of Dr Patchett and Dr Pascu as I would for any other witness. I am not bound to accept and act upon any witness's evidence, including an expert witness's evidence. I may reject expert evidence if there is other evidence to support my findings or if I conclude that the expert's evidence is unreliable.
In Hone v The State of Western Australia[45] the Court of Appeal considered the proper approach to expert evidence not contradicted at trial. Both Steytler P and Miller JA stated that whilst neither a jury nor a judge sitting alone are bound to accept and act upon expert evidence, where there is no evidence or circumstance to contradict that evidence, a verdict cannot be given contrary to that evidence.[46]
[45] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138.
[46] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 [13] (Steytler P), [124] (Miller JA).
Further, I direct myself that it is dangerous to assess the accused's words and actions in testing the accused's capacity to know that he ought not to do the act or his capacity to control his actions by the standards of people who do not suffer from a mental illness.
The State made applications that Ms Burnby, Ms DG and Ms Joy be declared special witnesses under s 106R(1) of the Evidence Act who may give their evidence from outside the courtroom but within the court precincts and for their evidence to be transmitted to the courtroom by means of video link.[47] On 20 August 2019, Corboy J ordered that both Ms Joy and Ms Burnby be declared special witnesses. On 26 August 2019, Corboy J ordered that Ms DG be declared a special witness.
[47] Application dated 15 August 2019; Application dated 18 August 2019; Consent Notice dated 25 August 2019.
I direct myself that the giving of evidence by the respective special witnesses from outside the courtroom and the evidence being transmitted by means of video link is a routine practice of the court and I should not draw any inference as to the accused's guilt from the use of that procedure.
In assessing the evidence and reaching a verdict it is important to guard against any feelings of prejudice or sympathy. Any feelings of prejudice or sympathy must be put aside and the question of guilt is to be determined on an objective and dispassionate assessment of the evidence. I do so.
The accused did not give evidence. It was the accused's right not to do so and no adverse inference may be drawn against the accused in respect of his election not to give evidence.
Elements of the offence of murder
The elements of the offence of murder are that the accused killed the deceased, the killing was unlawful and the accused did so with either an intention to kill or an intention to cause an injury that was or was likely to be life endangering.[48]
[48] Criminal Code (WA), s 279.
It is unlawful to kill any person unless the killing is authorised, justified or excused by law.[49] A person who causes the death of another, either directly or indirectly, by any means whatever, is deemed to have killed that other person.[50] In this case the accused made a formal admission that he caused the death of Mr Baz‑Bosch by stabbing him in the neck with a knife. I am satisfied beyond reasonable doubt that Mr Daly killed the deceased.
[49] Criminal Code (WA), s268.
[50] Criminal Code (WA), s 270.
Whether a killing constitutes the offence of murder depends upon the intention of the accused at the relevant time. The accused has raised the defence of insanity. In circumstances where that defence has been raised, it is necessary to consider whether the accused is criminally responsible for the killing having regard to s 27 of the Criminal Code. It is only if that question is answered adversely to the accused that the next question arises, namely what the accused's intention was at the relevant time. The issue of insanity must, therefore, be determined before the issue of intent.[51]
[51] Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 [25] (Kennedy J).
In the event that the insanity defence is not established, it would then be necessary to consider whether the prosecution has proved that the accused had the intention to kill or cause a life endangering injury to Mr Baz‑Bosch at the time of his death.
Legal principles applying to the insanity defence
Every person is presumed to be of sound mind and to have been of sound mind at any time which comes into question, until the contrary is proved.[52] The burden is on the accused to prove that he was not of sound mind at the time he did the act that is alleged to constitute the offence. Mr Daly must prove that he was not of sound mind on the balance of probabilities.[53]
[52] Criminal Code (WA), s 26.
[53] R v Porter [1933] HCA 1; (1933) 55 CLR 182, 184.
Section 27 of the Criminal Code provides as follows:
(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.
Section 28 of the Criminal Code provides as follows:
(1)Section 27 applies to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means.
(2)Section 27 does not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not.
(3)When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.
Accordingly, s 27 of the Criminal Code contains two bases for relieving a person of criminal responsibility where there is a mental impairment. In this trial s 27(1) of the Criminal Code is applicable, with the relevant incapacities being that the accused did not have the capacity to control his actions nor the capacity to know that he ought not to do the act which caused the death of Mr Baz‑Bosch.
The term mental impairment is defined by s 1(1) of the Criminal Code to mean intellectual disability, mental illness, brain damage or senility. Mental illness is defined to mean 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.[54]
[54] Criminal Code (WA), s 1.
Whilst what constitutes mental illness is a question of law, the issue of whether or not the facts disclose a state of mental illness at the relevant time is a question of fact.[55]
[55] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 60.
In respect of the meaning to be given to 'mental illness', I respectfully adopt the outline of relevant legal principles stated by Jenkins J in The State of Western Australia v Herbert:[56]
[56] The State of Western Australia v Herbert [2017] WASC 101 [48] - [50].
The definition of 'mental illness' reflects some of the comments made by King CJ in Radford (1985) 20 A Crim R 388, 396 about the meaning of the expression 'disease of the mind' which is used in the common law of insanity. 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 disease, 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'Naughten 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'.
In R v Falconer [1990] HCA 49; (1990) 171 CLR 30, the High Court generally approved of King CJ's comments even in the context of the then Criminal Code provisions.
When Falconer was decided, the Code s 27 was differently worded. Section 27 was amended and the definition of mental impairment was inserted after Falconer was delivered. The subsequent amendments to the Code are consistent with King CJ's statement of principles in Radford, although the Code definition of 'mental impairment' is broader than that of 'disease of the mind' which was considered by King CJ. Nevertheless, acute intoxication with alcohol and for drugs is not a 'mental impairment'.
Capacity to know that one ought not to do the act
The accused contends that his mental illness deprived him of the capacity to know that he ought not to do the acts by which he committed the offence of murder. With respect to the meaning of the term 'capacity to know that he ought not to do the act', I refer to the High Court in Stapleton v The Queen:[57]
For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. See R v Davis (1881) 14 Cox CC 563, Stephen J, R v Kay (1904) 68 JP Jo 376, Stephen J. In R v Porter (1933) 55 CLR 1828 at pp 189, 190, this was expressed by Dixon J as follows:
'The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong (footnotes omitted).'
[57] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 367.
In Evans v The State of Western Australia[58] the Court of Appeal considered the application of the common law principles to s 27 of the Criminal Code. McLure P stated that there was no suggestion that there was any material distinction between the common law test as stated by the High Court in Stapleton v The Queen and s 27 of the Criminal Code. McLure P considered what is meant by the term 'know' in s 27 of the Criminal Code. McLure P observed that whether an act is right or wrong is determined by reference to an objective standard and the question is whether the accused had a complete incapacity to reason as to what was, by that objective standard, right or wrong.[59]
Capacity to control his actions
[58] Evans v The State of Western Australia [2010] WASCA 34 [30] - [31].
[59] Evans v The State of Western Australia [2010] WASCA 34 [31].
The accused also contends that his mental illness deprived him of the capacity to control his actions. The proper construction of the second capacity, namely whether an accused had the capacity to control his actions, was considered by Jenkins J in The State of Western Australia v Marotta.[60] I respectfully agree with her Honour's consideration of the meaning of the second capacity of being deprived of the ability to control one's actions. Jenkins J observed:
[60] The State of Western Australia v Marotta [2018] WASC 329.
39.The meaning of the Code s 27 where it says that an accused is not criminally responsible for an act if at the time of doing the act the accused is in such a state of mental disease as to deprive him of capacity to control his actions was discussed in R v Falconer Mason CJ, Brennan and McHugh JJ said:
'The incapacities to which s 27 refers include the incapacity to control actions whereas the M'Naghten Rules speak only of such a defect of reason 'as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.' The explanation for the inclusion of the incapacity to control actions in s 27 is that it mirrors the provisions of s 23, as Sir Samuel Griffith explained in his notes to the Draft Code, (1897), 14:
"An act to involve criminal responsibility must be voluntary, as distinguished from involuntary [s.23] - that is to say, it must be accompanied by volition. In order that an action may be accompanied by volition there must be in the first place perception, more or less accurate, of the facts, then a determination or choice of the action to be taken upon those facts, and finally the action. If the person in question is incapable from mental disorder of rightly perceiving the facts, he should be treated on the same footing as a man who in good faith misapprehends the facts [s.24]. If he is for the same cause incapable of exercising the power of determination or choice, he should be treated on the same footing as a man who does an act independently of the exercise of his will [s.23]." '
Also in Falconer Deane and Dawson JJ said:
'Where an accused's acts are alleged to be involuntary by reason of mental disease or natural mental infirmity, no distinction can be drawn between the defence of automatism - the absence of will accompanying the relevant acts of the accused - and the defence of insanity under s 27 of the Code. This is necessarily so because s 27 relieves a person of criminal responsibility for an act done in "such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions ...".
… Where the voluntariness of an accused's acts is to be determined by reference to a condition which, if it existed at all, must on the evidence have amounted to a state of mental disease or natural mental infirmity, the question whether the accused's acts were voluntary will be subsumed in the question whether the accused did in fact suffer from a state of insanity envisaged by the section such that it deprived him of the capacity to understand what he was doing or the capacity to control his actions. S 27 also applies where a person is by reason of mental disease or natural mental infirmity deprived of the capacity to know that he ought not to have acted as he did. That would seem to raise a question distinct from that of voluntariness.'
40.Their Honours equated a deprivation of the capacity to control ones actions to involuntariness pursuant to the Code s 23. Toohey J seems also to have equated involuntary action with the second limb of s 27. His Honour said:
'Of course, insanity is not confined to involuntary action; insanity may be established even if a person has acted voluntarily, hence the need for lack of "capacity to understand what he is doing" or lack of "capacity to know that he ought not to do the act or make the omission" as components in s 27.'
41.Similarly, Gaudron J in Falconer said:
'It is clear from the terms of s 27 of the Code - "such a state of mental disease or natural mental infirmity as to deprive him ... of capacity to control his actions" that the defence of insanity or unsoundness of mind encompasses involuntariness when it proceeds from a mental disease or natural mental infirmity.'
42.I conclude that the High Court has given what some authors have described as a 'very narrow sphere of operation' to the second limb of s 27. A person is deprived of the capacity to control his actions where his actions occur independently of the exercise of his will and where the person cannot exercise the power of choice to act.
43.This construction of the second limb of s 27 does not exclude those cases where a person is by their mental [illness] deprived of the capacity to control their actions in the sense that they are deprived of the capacity to refrain from doing an act or in the sense that the effect of their mental [illness] on their mind deprives them of the capacity to choose to act.
44.In the case of the effect of mental [illness] on a person's capacity to control their actions the focus will often be on the extent to which their delusions or hallucinations controlled their actions or in the words of Sir Samuel Griffith deprived them of the power of choice.
45.It will involve a consideration of the extent to which their mental [illness] compromised their ability to will their actions or to decide not to act. But it is necessary to bear in mind that the Code s 27 only applies if the accused is deprived of capacity to control actions, as opposed to something less than that such as having a significantly impaired capacity to resist an impulse or an emotion.
Intoxication and insanity
An issue at trial was intoxication. If Mr Daly satisfies the court that he lacked one of the two capacities under s 27 of the Criminal Code at the time of the incident, then further, he submits that he was not intentionally intoxicated. The State submits that if Mr Daly does satisfy the criteria for lacking capacity under s 27 then he has failed to prove on the balance of probabilities that he had not intentionally caused himself to become intoxicated. I will, therefore, outline the meaning of intoxication and the legal principles applicable to s 28 of the Criminal Code.
Section 28(2) of the Criminal Code applies the common law principles, as modified by the Criminal Code, to the law of insanity. With respect to the meaning of the term 'intoxication', I refer to Jenkins J in The State of Western Australia v Lang [No 2]:[61]
[61] The State of Western Australia v Lang [No 2] [2016] WASC 206.
In The State of Western Australia v Brown [No 3] [2013] WASC I considered the meaning of the Criminal Code s 28. I see no reason to change the views which I expressed then in the following terms:
[T]he Macquarie Dictionary defines 'intoxication' as including:
1. inebriation; drunkenness;
2. Pathol. Poisoning;
3. the act of intoxicating; and
4. overpowering action or effect upon the mind.
The Shorter Oxford Dictionary defines 'intoxication' as including:
1. The action of poisoning; the state of being poisoned; an instance of this.
2. The action of stupefying with a drug or alcoholic liquor; the making drunk or inebriated; the condition of being so stupefied or made drunk.
3. fig.
(a) The poisoning of the moral or mental faculties; a cause of this.
(b) The action or power of highly exciting the mind; elation beyond the bounds of sobriety.
…
In my view, the most appropriate definition of 'intoxication' is 'overpowering action or effect on the mind'.
…
The Macquarie Dictionary defines 'disordered' to mean 'in confusion' or 'mentally ill'. The online Oxford English Dictionary defines 'disordered' relevantly to mean:
1.put out of order, thrown into confusion; disarranged, confused, irregular; and
2.affected with bodily or mental disorder; out of health; deranged; morbid.
In my view, 'disordered' in s 28 means confused or disarranged. Thus, put in other words, the Criminal Code s 28 states that s 27 applies to a person whose mind is confused or disarranged by the overpowering action or effect on the mind of a drug, if the intoxication is caused without intention on his part. It is clear from what I have said that it is unnecessary for the purpose of s 28(1) that a large amount of the drug has to be consumed [45] - [49].
Using the same definition of intoxication, s 28(2) says that s 27 does not apply to a person who has intentionally caused his mind to be intoxicated; that is, subject to the overpowering action or effect of a drug or liquor.
I am of the opinion that s 28(2) refers to a person who has 'become intoxicated' at the time of the commission of the relevant acts.
It is a question of fact whether the accused was intoxicated. The accused's experience of the effect of the drugs may be only one of a number of matters relevant to that determination. The drugs must be found to have had an overpowering effect on the accused's mind at the time of the commission of the relevant acts in order for the accused to be 'a person who has intentionally caused himself to become intoxicated' so that s 28(2) of the Criminal Code applies and s 27 does not.
I now turn to the psychiatric evidence received at trial.
Psychiatric evidence
Dr Patchett
Dr Patchett provided a written report dated 26 June 2018 which was received in evidence.[62] Further, Dr Patchett gave oral testimony at trial.[63]
[62] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon.
[63] ts 221 - 249, 3 September 2019.
Dr Patchett received all relevant material[64] and interviewed Mr Daly on two occasions, being 6 June 2018 and 9 June 2018.[65] The first interview was described by Dr Patchett as an incomplete examination.[66]
[64] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon.
[65]Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 2; ts 223, 3 September 2019.
[66] ts 223, 3 September 2019.
Dr Patchett confirmed that Mr Daly has an extensive treatment history for a serious mental illness, that being paranoid schizophrenia.[67] That psychosis developed when Mr Daly was approximately 21 years of age and has been characterised by prominent auditory hallucinations and persecutory and grandiose delusions with aggressive and at times violent behaviour.[68]
[67] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 10.
[68] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 10.
The medical history of Mr Daly was outlined by Dr Patchett. That history is marked by continual admissions to health institutions for his mental illness.[69] In September 2013, Mr Daly was admitted to the Alma Street Clinic with psychotic and command auditory hallucinations telling him to stab and kill people.[70] Mr Daly revealed, at that time, the delusional belief that he had become possessed by was 'a child molester demon named Lukie'.[71]
[69] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 6 - 7.
[70] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 7.
[71] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 7.
Dr Patchett expressed the opinion that Mr Daly's psychotically disturbed state in the days prior to and including 19 November 2016 constitutes a mental impairment as defined by s 27 of the Criminal Code.[72] In Dr Patchett's opinion, there is no doubt that Mr Daly has a serious mental illness and that his mental state was seriously disturbed for the 'five or so years leading up to … the incident'.[73]
[72] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 13.
[73] ts 227, 3 September 2019.
During his second examination Mr Daly reported to Dr Patchett that he was unable to recall any details of the time leading up to and the circumstances surrounding the incident.[74] Dr Patchett reported that Mr Daly stated that he watched the news on the night of the incident and thought the deceased 'looked like a child molester, I don't think I did it'.[75] Dr Patchett recalled that Mr Daly stated that 'he heard someone saying there was a demon, he attached himself to me. It was Lukie, he said he was a child molester demon. I think he was tracking me to see if I was a child molester murderer, to see if I was a good person or a bad person'.[76] Mr Daly then spoke of having 'an exorcism, North of the river, got him removed (Lukie), I don't think he possessed you, just a voice'.[77]
[74] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 5 - 6.
[75] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 6; ts 226, 3 September 2019.
[76] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 6.
[77] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 6; ts 226, 3 September 2019.
Dr Patchett expressed the opinion that Mr Daly was clearly hallucinating and deluded, including in respect of his ability to detect paedophiles, and that his psychosis 'had a lot to do with' the incident.[78] However, Dr Patchett considered that there were some pieces of the jigsaw puzzle missing, in particular, the actual motivation for the killing.[79] Dr Patchett observed that there is no actual evidence 'from his mouth' to explain Mr Daly's reasoning and feelings at the time of the incident.[80]
[78] ts 228, 3 September 2019.
[79] ts 228, 3 September 2019.
[80] ts 228, 3 September 2019.
Dr Patchett stated that he was satisfied that at the time of the alleged offence Mr Daly was likely to have had a very disturbed mental state.[81] Therefore, it may be reasonably inferred that Mr Daly was mentally impaired within the definition of s 27 of the Criminal Code at the relevant time.[82] However, Dr Patchett stated that the presence of amnesia and the absence of an account or explanation by Mr Daly for the incident makes it very difficult to draw conclusions about the extent to which the delusions impaired his thinking and reasoning and whether he was deprived of one or more of the relevant capacities under s 27 of the Criminal Code.[83]
[81] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 10 - 11.
[82] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 11.
[83] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 11.
Dr Patchett concluded in his report that:[84]
In my opinion, Mr Daly's psychotically disturbed mental state in the days around 19 November 2016 constitutes 'mental impairment' as defined in s 27 of the Criminal Code.
Without having access to his thinking, feeling and reasoning at the time that he allegedly stabbed Mr Bosch, I cannot be satisfied, with a reasonable degree of certainty that Mr Daly was deprived of any or all of the s 27 capacities.
[84] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 13.
Dr Patchett was examined in respect of the medical reports produced[85] which addressed Mr Daly's mental health in the period prior to the offending. Dr Patchett stated that Mr Daly's mental illness was 'like it had been for a long time, not worse, not better possibly'.[86] Dr Patchett was asked whether he agreed with Dr Pascu's evidence that there had been a deterioration in Mr Daly's mental health in the period leading up to the offending.[87] Dr Patchett stated that it is difficult to judge such based on other persons' impressions and, therefore, did not offer an opinion.[88]
[85] Exhibit 19: Medical records of the accused from Fremantle Hospital.
[86] ts 240, 3 September 2019.
[87] ts 240, 3 September 2019.
[88] ts 240, 3 September 2019.
Dr Patchett expressed the opinion that Mr Daly's beliefs about the need to kill paedophiles might have distorted his thinking to the extent that it deprived him of the capacity to understand what he was doing, or the capacity to control his actions, or the capacity to know that he ought not to do the act.[89] In the alternative, Dr Patchett observed that there were a number of possible explanations for Mr Daly's behaviour independent of his disturbed mental state, including that he wished to join the Coffin Cheaters and accordingly, he believed that to initiate himself with the club, he would have to kill a paedophile.[90]
[89] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 11.
[90] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials to be relied upon, 11 - 12.
In his testimony, Dr Patchett stated that in his opinion Mr Daly may have lacked one or more of the three capacities in s 27(1) of the Criminal Code.[91] However, Dr Patchett stated that the lack of one of the capacities does not stand out more than the other possibilities to explain Mr Daly's actions, namely Mr Daly's longstanding beliefs that the world had to be rid of paedophiles and that the violence was driven by Mr Daly's methylamphetamine use.[92]
[91] ts 234, 3 September 2019.
[92] ts 234, 3 September 2019.
Dr Patchett gave testimony regarding the effect that methylamphetamine and cannabis has on a person with schizophrenia.[93] During his examination Dr Patchett was asked whether he was able to determine if Mr Daly was using illicit drugs at the time of the offending.[94] Dr Patchett stated that he agreed with Dr Pascu that a positive urine drug screen test is the only real way of knowing whether a person is taking methylamphetamine or other illicit drugs.[95] Further, Dr Patchett stated that he was unable to obtain a history from Mr Daly concerning his illicit drug use at the relevant time.[96]
[93] ts 235, 3 September 2019.
[94] ts 236, 3 September 2019.
[95] ts 236, 3 September 2019.
[96] ts 237, 3 September 2019.
Dr Patchett expressed the opinion that the post-offence conduct of Mr Daly, namely the shaving of his hair, the burying of his shoes and allegedly concealing his beanie and the knife did not assist in determining one way or the other whether Mr Daly was criminally insane.[97] However, the post‑offence conduct could be consistent with a person who lacked one of the capacities under s 27 of the Criminal Code.[98]
Dr Pascu
[97] ts 240, 3 September 2019.
[98] ts 240 - 241, 3 September 2019.
Dr Pascu provided two written reports dated 15 February 2018 and 1 March 2019 respectively which were received in evidence as part of the defence's case.[99] The second report was commissioned for the purpose of Dr Pascu reviewing her first report in light of Dr Patchett's report dated 26 June 2018 and the State's brief of evidence.[100] Dr Pascu interviewed Mr Daly on two occasions for three hours in total in preparing her first report and interviewed Mr Daly for a further one hour in preparing her second report. In addition, Dr Pascu gave oral testimony at trial.[101]
[99] Exhibit 20: Report of Dr Pascu dated 15 February 2018; Exhibit 21: Report of Dr Pascu dated 1 March 2019.
[100] Exhibit 21: Report of Dr Pascu dated 1 March 2019 [1].
[101] ts 151 - 220, 3 September 2019.
Dr Pascu's clinical diagnosis was that Mr Daly has a significant mental illness, being paranoid, chronic and treatment-resistant schizophrenia.[102] Further, Mr Daly has limited insight into his significant mental illness.[103] Dr Pascu confirmed that Mr Daly has a well‑documented history of chronic paranoid schizophrenia since at least 2012 and that, despite ongoing treatment since his admission into hospital in September 2017, there has been no noticeable improvement in Mr Daly's mental state.[104]
[102] Exhibit 21: Report of Dr Pascu dated 1 March 2019 [20].
[103] Exhibit 21: Report of Dr Pascu dated 1 March 2019 [20].
[104] Exhibit 21: Report of Dr Pascu dated 1 March 2019 [21] - [22].
During his interviews Mr Daly reported that he did not have any recollection of the events leading up to the offence.[105] However, Dr Pascu gave evidence that Mr Daly remembered climbing from his bedroom window in the morning prior to the offending.[106]
[105] Exhibit 20: Report of Dr Pascu dated 15 February 2018 [7]; Exhibit 21: Report of Dr Pascu dated 1 March 2019 [7].
[106] ts 176, 3 September 2019.
Dr Pascu stated that Mr Daly did not deny the alleged offence and explained the offence through his fixed delusional system.[107] Mr Daly reported to Dr Pascu that he hears voices both day and night saying bad things which causes him distress and that he worries about others getting him.[108] Mr Daly reported that he feels that 'I have special powers and I can save kids from paedophiles; sometimes I hear that from the TV and the radio, they talk about me saving the kids; I was thinking of suing them, the voices…'.[109] During her testimony, Dr Pascu stated that the voices were command external auditory hallucinations which implied that Mr Daly himself was a paedophile and that he should hurt others.[110] The voices were often received through the medium of television or radio broadcasting.[111]
[107] Exhibit 21: Report of Dr Pascu dated 1 March 2019 [25].
[108] Exhibit 20: Report of Dr Pascu dated 15 February 2018 [8] - [9].
[109] Exhibit 20: Report of Dr Pascu dated 15 February 2018 [9].
[110] ts 160, 3 September 2019.
[111] ts 161 - 162, 3 September 2019.
Dr Pascu stated that Mr Daly believed that he had special powers which permitted him to identify paedophiles by simply looking at the person.[112] Mr Daly maintained that he was recruited by a bikie gang to pick out paedophiles and to 'help the world get rid of the evil'.[113]
[112] ts 162, 3 September 2019.
[113] ts 163, 3 September 2019.
Mr Daly reported to Dr Pascu that he was feeling unwell in the months leading up to the offending.[114] During his interviews Mr Daly reported that he did not have any recollection of the events leading up to the offence.[115] In her first report, Dr Pascu records that Mr Daly stated 'I saw the man's photo on the news, he looked like a child molester, his eyes looked like the eyes of a paedophile, I cannot remember what they say I did I am pretty sure I must have been at home at the time in bed; I thought someone stabbed that man because he looked like a molester'.[116]
[114] Exhibit 20: Report of Dr Pascu dated 15 February 2018 [11].
[115] Exhibit 20: Report of Dr Pascu dated 15 February 2018 [7].
[116] Exhibit 20: Report of Dr Pascu dated 15 February 2018 [7].
In preparation for the second report, Dr Pascu asked Mr Daly about his special powers. Dr Pascu records the answer in her report in the following terms:[117]
Mr Daly said 'I cannot say, the angels knew he was a paedophile and I knew but cannot say more.' When asked about information provided in statements by his school colleagues and friends where it was reported that Mr Daly told friends that he was employed by a bikie gang with the job to rid the world of paedophiles, Mr Daly said in a very quiet voice and indicating with his eyes upwards 'they knew, the angels, so I knew from them; he was a paedophile it was in his eyes; I cannot say more, I cannot talk about anything otherwise it will be bad.'
[117] Exhibit 21: Report of Dr Pascu dated 1 March 2019 [10].
To that question, Dr Pascu stated that Mr Daly 'looked at me' while he 'came closer' and then, pointing with his eyes upwards, stated 'the angels' were 'telling him, helping him with this special ability to pick paedophiles' but that he could not continue talking because it would be bad.[118] Dr Pascu then asked Mr Daly whether the angels were present and to that question Mr Daly 'just pointed upwards with his eyes'.[119]
[118] ts 162 - 163, 3 September 2019.
[119] ts 163, 3 September 2019.
During her testimony, Dr Pascu, whilst accepting that Mr Daly did not clearly indicate that he committed the offence because the victim was a paedophile, by 'putting it in context of his delusional system' during the interviews for the second report 'he did indicate that he had some involvement in the incident leading to the victim's death'.[120]
[120] ts 175, 3 September 2019.
Dr Pascu stated that after the multiple interviews it became 'obvious that there is enough evidence to provide an opinion'.[121] That is, by the time the second report was prepared, Dr Pascu was 'even more confident'.[122]
[121] ts 170, 3 September 2019.
[122] ts 170, 3 September 2019.
Dr Pascu stated that 'at the time of the offences Mr Daly's mental state was more likely than not altered by his underlying untreated psychotic symptoms as part of his major mental illness, paranoid schizophrenia'.[123] Dr Pascu expressed the opinion that 'from a psychiatric point of view an insanity defence can be supported'.[124] Dr Pascu determined that while Mr Daly was not deprived of the capacity to know what he was doing, Mr Daly was more likely than not deprived of the capacity to know that he ought not to do the act due to his impaired mental state and judgement and was more likely than not deprived of the capacity to control his actions due to his serious mental illness.[125]
[123] Exhibit 20: Report of Dr Pascu dated 15 February 2018 [97].
[124] Exhibit 21: Report of Dr Pascu dated 1 March 2019 [32].
[125] Exhibit 20: Report of Dr Pascu dated 15 February 2018 [90]; Exhibit 21: Report of Dr Pascu dated 1 March 2019 [32].
Dr Pascu confirmed that the post‑offence conduct by Mr Daly, comprising the shaving of his hair, the burying of his shoes and allegedly concealing his beanie and the knife did not assist in determining one way or the other whether Mr Daly was criminally insane.[126] However, the post‑offence conduct was consistent with a person who lacked one of the capacities under s 27 of the Criminal Code at the time of the killing.[127]
[126] ts 213 - 214, 3 September 2019.
[127] ts 213 - 214, 3 September 2019.
Assessment and findings
I turn first to the question of whether Mr Daly has proven on the balance of probabilities that he lacked one or more of the three capacities in s 27(1) of the Criminal Code. I will then turn to the issue of intoxication.
After carefully considering the entirety of the evidence, I am satisfied on the balance of probabilities that Mr Daly's mental impairment deprived him of two capacities under s 27(1) of the Criminal Code, namely that he lacked the capacity to know that he ought not to do the acts and that he was deprived of the capacity to control his actions. I make that finding for the following reasons.
There is substantial evidence that supports the finding that Mr Daly has an entrenched and untreatable mental impairment, namely paranoid schizophrenia. His psychosis first commenced around the age of 21 years and has been characterised by prominent auditory hallucinations and persecutory and grandiose delusions with aggressive and violent behaviour.
There is substantial evidence that supports the finding that Mr Daly was suffering that mental impairment in the period prior to 19 November 2016 and has continued to suffer from that mental impairment since the offending, notwithstanding intensive treatment. I do not find that there was any improvement in Mr Daly's condition in the period prior to 19 November 2016. Since his arrest, Mr Daly has continued to display psychotic features including auditory hallucinations and persecutory delusions, notwithstanding treatment, including at the Frankland Centre.
There has not been a significant improvement in Mr Daly's psychotic symptoms which confirms 'the aetiology of the psychosis being primarily functional and due to his paranoid schizophrenia'.[128]
[128] Exhibit 21: Report of Dr Pascu dated 1 March 2019 [25].
There is substantial evidence that Mr Daly suffers from a long‑term delusional belief that he must kill paedophiles. Mr Daly has a fixation concerning child molester demons and believes that he has special powers to save children and believes in the need to kill the molesters. Mr Daly has a long‑term history of auditory hallucinations concerning that delusion. Both Dr Pascu and Dr Patchett confirm that to be the case. The evidence of Ms DG, Ms Joy and Ms Burnby and their statements also support that finding.
Dr Pascu had three meetings with Mr Daly in 2018 and 2019 and produced two reports. The multiple meetings and examinations were necessary due to Mr Daly being suspicious and very guarded about the incident due to the paranoid part of his psychotic illness.[129] Dr Pascu stated that after the first meeting she was unable to give an opinion.[130] After the second examination which was conducted in preparation for the first report, Dr Pascu concluded that there was sufficient material to express an opinion.[131] After the third examination, Dr Pascu stated that she was 'even more confident' of the opinion expressed.[132]
[129] ts 158, 3 September 2019.
[130] ts 170, 3 September 2019.
[131] ts 170, 3 September 2019.
[132] ts 170, 3 September 2019.
I accept Dr Pascu's evidence that in the examinations Mr Daly stated that he 'knew' that the person stabbed was a paedophile and, in the context of his delusional system, knew who the paedophiles were and that he must rid the world of paedophiles. Mr Daly clearly stated that the reason the man died was because he was a paedophile. The State submits that Mr Daly did not clearly make an express utterance that he did the act of killing for the reason that the victim was a paedophile. That is so. However, I am of the view that it was not necessary for Mr Daly to do so with such clarity.
Mr Daly suffers from psychotic episodes with a long-term entrenched, untreatable mental impairment. The actions of Mr Daly were entirely consistent with his delusional system. At two separate examinations with Dr Pascu, Mr Daly expressly referred to the killing of the man at the bus stop and that he died for the reason that Mr Daly believed he was a paedophile. Mr Daly stated that 'the angels knew he was a paedophile' and that he also knew that the victim was a paedophile but that 'I cannot say more'.[133] Mr Daly then 'said in a very quiet voice and indicating with his eyes upwards "they knew, the angels, so I knew from them; he was a paedophile it was in his eyes; I cannot say more, I cannot talk about anything otherwise it will be bad".'[134] Dr Pascu stated that there was a clear parallel between the views being expressed by Mr Daly and the circumstances of the deceased's death. Accordingly, I am satisfied that Mr Daly was explaining his actions through his fixed delusional system.
[133] Exhibit 21: Report of Dr Pascu dated 1 March 2019 [10].
[134] Exhibit 21: Report of Dr Pascu dated 1 March 2019 [10].
Dr Patchett did not reject the proposition that Mr Daly, at the time of the stabbing, had a mental impairment with the consequence that he did not have one of the capacities under s 27 of the Criminal Code. Dr Patchett stated that the psychosis 'had a lot to do with the killing' but that he 'can't be sure' that he lacked one of the three capacities under s 27.[135] Dr Patchett could not exclude that at the time of the incident Mr Daly was intoxicated or that he was acting in accordance with his delusional beliefs regarding paedophiles but still had the relevant capacities.
[135] ts 228, 234, 3 September 2019.
For reasons that I will outline below, I am satisfied that Mr Daly was not intoxicated at the relevant time. Further, I do not accept that the killing occurred because of Mr Daly's delusional beliefs but that his mental impairment at the time did not deprive him of one of the relevant capacities.
Dr Patchett stated that Mr Daly did not expressly state that he did the act of killing and explain why he did so. In assessing the utterances of Mr Daly to the psychiatrist, I must be mindful that he has a significant mental impairment. Dr Pascu observed that Mr Daly was guarded and concerned about saying too much in the presence of the angels. The utterances made by Mr Daly concerning the killing must be assessed in that context. Further, Dr Patchett accepted that there are situations where a person who is having a psychotic episode or acting under delusions may not be able to give a coherent account of what they did.[136] However, Dr Patchett expressed the opinion that he would not expect the amnesia to be for the length of time that Mr Daly committed the act.[137]
[136] ts 242, 3 September 2019.
[137] ts 242 - 243, 3 September 2019.
I accept the reasoning of Dr Pascu. The State submitted that the evidence of Dr Pascu is based upon inferences. Dr Pascu is a highly experienced psychiatrist who formed an opinion based upon three examinations, an analysis of the medical history of Mr Daly and an interpretation of the utterances made by him. The fact that inferences were drawn is not impermissible. The utterances of Mr Daly concerning the killing of the victim and the reasons for his killing, properly understood in light of the medical history of Mr Daly, constitute explanations of what he did and why he did it.
Accordingly, I am satisfied that Mr Daly's mental impairment deprived him of two of the relevant capacities, namely the capacity to know that he ought not to do the act and the capacity to control his actions.
Intoxication
The evidence supports a finding that Mr Daly has a history of significant illicit drug abuse. That finding was not in dispute at trial. The issue is whether I am satisfied on the balance of probabilities that Mr Daly was not intentionally intoxicated at the time of inflicting the lethal injury to the deceased.
The State contends that I should not be so satisfied. For the following reasons, I am satisfied that Mr Daly was not intoxicated at the relevant time.
Given that Mr Daly inflicted the lethal injury on 19 November 2016 and was arrested on 31 March 2017, there is no toxicology report that supports a finding that Mr Daly was intoxicated at the relevant time. Rather, the State contends that an inference may be drawn that Mr Daly was intoxicated.
As I have observed, there is evidence that supports the fact that Mr Daly has a significant history of using illicit drugs. Both Dr Patchett and Dr Pascu outlined Mr Daly's history of using illicit drugs.[138] Mr Daly commenced using methylamphetamine when he was 15 years of age and reported that he has used that substance regularly since that time.[139] In respect of cannabis, Mr Daly reported that he commenced using that substance when he was 8 years of age and by his mid‑teens he was a regular user and has continued to do so on a regular, often daily, basis.[140]
[138] Exhibit 20: Report of Dr Pascu dated 15 February 2018 [45] - [48]; Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials relied upon, 9.
[139] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials relied upon, 9; Exhibit 20: Report of Dr Pascu dated 15 February 2018 [47].
[140] Exhibit 22: Report of Dr Patchett dated 26 June 2018 and index of materials relied upon, 9; Exhibit 20: Report of Dr Pascu dated 15 February 2018 [45].
The State also called three witnesses to give evidence, namely Ms Burnby, Ms Joy and Ms DG, who gave testimony that addressed, in part, Mr Daly's illicit drug use.
Ms Burnby, a friend of Mr Daly since childhood, confirmed that Mr Daly commenced using illicit drugs, namely cannabis, ecstasy and methylamphetamine, in 2013.[141] The friendship then ended but it appears that intermittent contact continued. Ms Burnby did not observe Mr Daly in the period immediately prior to 19 November 2016 and, therefore, has no knowledge as to whether Mr Daly was intoxicated on that date.
[141] ts 92, 2 September 2019.
Ms DG, a friend of Mr Daly since childhood, confirmed that she observed Mr Daly using drugs, namely ecstasy, cannabis and methylamphetamine around 2005.[142] Ms DG then spent a number of years living outside Western Australia, returning in 2015.[143] Ms DG did not observe Mr Daly in the period immediately prior to 19 November 2016 and, therefore, has no knowledge as to whether Mr Daly was intoxicated on that date.
[142] ts 110 - 111, 2 September 2019.
[143] ts 117, 2 September 2019.
In 2016, Ms Joy met Mr Daly.[144] Around September 2016, Ms Joy moved into Mr Daly's home.[145] Ms Joy confirmed that she has observed Mr Daly taking drugs, namely methylamphetamine and marijuana.[146] Ms Joy stated that Mr Daly would consume methylamphetamine three to four times a week.[147]
[144] ts 123 - 125, 2 September 2019.
[145] ts 125, 2 September 2019.
[146] ts 130, 138, 2 September 2019.
[147] ts 130, 139, 2 September 2019.
However, Ms Joy stated that she did not observe Mr Daly take any drugs the night before the incident.[148] In the morning on the day of the incident Ms Joy observed Mr Daly climb out of the bedroom window but did not give evidence concerning any consumption of illicit drugs by him.[149]
[148] ts 139, 2 September 2019.
[149] ts 128 - 129,137 - 138, 2 September 2019.
The parties also referred to the statements of two witnesses, being Ms Toomey and Mr Humphreys.[150] Mr Humphreys stated that the night before the murder in Coolbellup, Mr Daly appeared at Mr Humphreys' residence requesting 'meth'.[151] Ms Toomey stated that at approximately 1.00 am on 19 November 2016, Mr Daly arrived at their premises requesting that he be given some 'meth'.[152] Both Mr Humphreys and Ms Toomey confirm that methylamphetamine was not given to Mr Daly.
[150] Bundle of Agreed Materials, 281 - 300.
[151] Bundle of Agreed Materials, 290 - 291 [15] - [26].
[152] Bundle of Agreed Materials, 295 - 300 [10] - [22].
Dr Pascu gave evidence that it was a possibility that the psychotic symptoms on 19 November 2016 were caused by the use of illicit drugs. However, Dr Pascu stated that for a psychiatrist to make a diagnosis of drug induced psychosis there needs to be evidence that the person actually used drugs that day.[153] Dr Pascu was asked in cross‑examination whether it was more likely than not that Mr Daly was under the influence of drugs at the relevant time.[154] Dr Pascu confirmed that a positive drug screen was necessary in order for her to make such a finding.[155] The question was once again put to Dr Pascu. Dr Pascu answered that it was more likely than not that Mr Daly was intoxicated at the relevant time.[156] However, that answer was qualified by Dr Pascu stating that he might have been.[157] Dr Pascu stated that she did not know if Mr Daly had used drugs on 19 November 2016 but, given his entrenched drug habit, it was more likely than not.[158]
[153] ts 181, 3 September 2019.
[154] ts 217 - 219, 3 September 2019.
[155] ts 218, 3 September 2019.
[156] ts 218, 3 September 2019.
[157] ts 218, 3 September 2019.
[158] ts 219, 3 September 2019.
Dr Patchett stated that he was unable to conclude whether Mr Daly was intoxicated.[159] Dr Patchett agreed with Dr Pascu that a positive drug screen test was 'the only real way of knowing' whether a person was intoxicated with methylamphetamine.[160]
[159] ts 236, 3 September 2019.
[160] ts 236, 3 September 2019.
Accordingly, I am satisfied on the balance of probabilities that Mr Daly was not intentionally intoxicated at the time he inflicted the fatal stab wound to the deceased. There is evidence that supports a finding that Mr Daly has a long entrenched drug habit that is marked by frequent consumption of methylamphetamine. However, there is no evidence that supports a finding that Mr Daly had taken any illicit substances in the period prior to the offending. Ms Joy stated that she did not observe Mr Daly take illicit drugs the night before the incident. Further, at 1.00 am on 19 November 2016, Mr Daly requested drugs from Mr Humphreys and Ms Toomey but was refused. Therefore, it may be inferred that in the early hours of 19 November 2016, Mr Daly was not in possession of illicit drugs, namely methylamphetamine.
Given that Mr Daly was not arrested until approximately four months after the offending, there was no opportunity to undertake any toxicology testing. The fact that Mr Daly was a frequent user of illicit substances and committed the offence is an insufficient evidentiary basis to support a contention that he was intoxicated. I reiterate that it is for Mr Daly to prove on the balance of probabilities that he was not voluntarily intoxicated. I am so satisfied.
Conclusion
I am satisfied, on the balance of probabilities, that at the time Mr Daly did the act that caused the death of the deceased, he was mentally impaired. Consequently, he was deprived of the capacity to know that he ought not to do the act and the capacity to control his actions. That is, Mr Daly lacked the capacity to know that he ought not to kill the deceased by the act of inflicting the knife wound to the neck of the deceased and he could not control that action. Therefore, the requirements of s 27 of the Criminal Code have been satisfied. I am also satisfied that it is more likely than not that Mr Daly was not voluntarily intoxicated. Accordingly, Mr Daly is not criminally responsible for his actions by reason of unsoundness of mind.
I find the accused not guilty of the count on the indictment on account of unsoundness of mind. Accordingly, the accused will be the subject of a custody order pursuant to s 21 of the Criminal Law (Mentally Impaired Accused) Act.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DH
Research Orderly to the Honourable Justice McGrath29 OCTOBER 2019
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