The State of Western Australia v Djurasovic - [2021] WASC 466

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DJURASOVIC [2021] WASC 466
CORAM:   HALL J
HEARD:   13 AND 14 DECEMBER 2021
DELIVERED          :   22 DECEMBER 2021
PUBLISHED           :   22 DECEMBER 2021
FILE NO/S:   INS 80 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
MILKA DJURASOVIC
Accused

Catchwords:

Criminal Law – Two counts of murder – Accused charged with murdering her children – Whether accused of unsound mind at the time of the killings – Whether accused in a state of mental impairment – Whether accused was deprived of the capacity to know that she ought not do the acts – Expert psychiatric evidence unanimous that accused lacked relevant capacity

Legislation:

Criminal Code (WA), s 27
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 21

Result:

Not guilty on account of unsoundness of mind
Custody order made

Representation:

Counsel:

Prosecution	:	J C Whalley SC
Accused	:	M T Trowell QC

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	The Defence 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
Matheson [1958] 1 WLR 474; 42 Cr App R 145
Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659
R v Bailey (1977) 66 Cr App R 31
R v Chester [1982] Qd R 252
R v Dick [1966] Qd R 301
R v Falconer [1990] HCA 49; (1990) 171 CLR 30,
R v Hall (1988) 36 A Crim R 368
R v Matusevich & Thompson [1976] VR 470
R v Michaux [1984] 2 Qd R 159; (1984) 13 A Crim R 173
R v Porter [1933] HCA 1; (1933) 55 CLR 182
R v Radford (1985) 20 A Crim R 388
R v Rivett (1950) 34 Cr App R 87
R v Wallace [1982] Qd R 265
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
Taylor v The Queen (1978) 22 ALR 599
The State of Western Australia v Lang [No 2] [2016] WASC 206
Walton v The Queen [1978] AC 788 at 793
Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254

HALL J:

Every murder case, by definition, involves a tragic loss of life. However, this case is a profoundly sad one. The victims are two young children, sisters aged 6 and 10. They were bright, vibrant girls who were very much loved by their family. There is no rational reason why anyone would want to hurt them, least of all their mother, who, by all accounts, cared for them deeply.
But in 2019, their mother, the accused, stopped being rational. She developed a significant mental illness. Over a period of about 12 months she had a major depressive episode. As the depression became worse she experienced psychotic features, in particular delusional beliefs that she was consigned to a living hell from which there was no escape. She also came to believe that her children would suffer the same fate. In her delusional state she thought that the only way to end her own suffering, and to save her children from it, was to kill them and commit suicide. She succeeded in her plan to kill the children but failed in her attempts to end her own life.
The criminal law recognises that a person should not be held responsible for things that are done whilst suffering a mental illness if that illness deprives the person of the capacity to understand what they are doing, or the capacity to control their actions or the capacity to know that they ought not to do the act. The rationale is that it would not be right to punish a person for conduct which, due to mental illness, they have not chosen to do or which they cannot control or which they do not understand is wrong. It is a feature of a civilised society that it distinguishes between offenders who should be punished for their wilful acts and mentally ill people who should be treated for their illness.
In this case the evidence is uniform and clear. It compels a conclusion that at the time of the killings it is likely that the accused was suffering a serious mental illness. That illness was likely to have been of such intensity as to deprive her of the capacity to know that she ought not to do the acts that caused the deaths of her children. Accordingly, the accused cannot be considered criminally responsible for her actions and must be found not guilty on grounds of unsoundness of mind.
In these circumstances I am required to make a custody order pursuant to s 21 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). The effect of that order is that the accused will be detained until released by an order of the Governor: s 24.
The legal outcome does not diminish the enormity of the tragedy or the profound consequences for the family of the victims. The father of the girls and the extended family must live with their grief and loss. The accused, though excused by law, must live with the terrible knowledge that her children died as result of things she did when ill. Nothing I can do or say will relieve those effects, but these proceedings may assist in understanding what happened.
There is a natural tendency in a case like this for family members to wonder if things could have been different. The evidence here is that the accused’s illness was such that she did not reveal her delusions and kept her plans secret. In those circumstances it is very unlikely that anyone could have prevented what happened.

The charges and the proceedings

The accused is charged on an indictment containing two counts. They are that:
1.On 25 October 2019, at Madeley, Milka Djurasovic murdered Tiana Djurasovic.
2.On the same date and at the same place as count 1, Milka Djurasovic murdered Mia Djurasovic.
On 12 May 2021 the accused filed an application for trial by judge alone. In the affidavit supporting that application the accused’s solicitor stated that it was intended to agree a statement of facts with the prosecution and the only issue to be determined would be whether the defence of insanity under s 27 of the Criminal Code (WA) could be made out. On this basis, Corboy J was satisfied that it was in the interests of justice that there be a trial by judge alone and an order in that regard was made on 13 May 2021.
The trial occurred on 13 and 14 December 2021. At the commencement of the trial the accused was arraigned and entered pleas of not guilty. It was made clear, however, that the only issue was whether the accused was of unsound mind at the time of the killings.
The facts were put before the court in the form of an agreed statement of facts. That statement was read aloud by the prosecutor. Section 93 of the Criminal Procedure Act 2004 (WA) provides that if an accused pleads not guilty to a charge on account of unsoundness of mind and the judge is satisfied that the only fact in issue is whether the accused is criminally responsible under s 27 of the Criminal Code, 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. Having regard to that section and to the views expressed by the prosecution and defence, I was satisfied that it was in the interests of justice to receive the statement of material facts as establishing the factual circumstances relevant to the determination of the issue in this case.
The prosecution also tendered a book of materials, the prosecution brief, a video recording made by the accused on the day of the killings, a video recording of a police interview with the accused on 14 November 2019 and the report of Dr Adam Brett, a forensic psychiatrist. The prosecution also called Dr Brett as an expert witness.
The defence called two other forensic psychiatrists, Dr Mark Hall and Dr Victoria Pascu, and tendered their reports. The accused also gave brief evidence to confirm that the information she had provided to Dr Brett, Dr Hall and Dr Pascu was truthful and that the agreed facts were correct.[1]
[1] ts 50 - 51.

The Agreed Facts

The Statement of Agreed Facts is as follows:
This case involves the killing of two young girls called Mia and Tiana Djurasovic. Reference hereafter to 'the killings’ is to the death of these two girls.
At the time of her death, the deceased Mia Djurasovic was 10 years old. She was 140cm tall and weighed 28kg.
The deceased Tiana Djurasovic was 6 years old, 115 cm tall and weighed 18 kg.
The following preliminary background facts come largely from the witness statement of the accused’s husband Nenad Djurasovic which is in the prosecution brief at pages 42 to 93.
The accused was the biological mother of the two deceased girls and as at 25 October 2019, she lived with her husband Nenad Djurasovic at 8 Bogdanich Way in Madeley.
Nenad Djurasovic was the biological father of the two deceased girls.
Nenad and his parents had moved to Australia in 1998 when he was 21 years old.
In year 2000 Nenad first met the accused who had moved to Australia from Serbia about a month before he met her.
When Nenad met the accused she was attending TAFE and studying medical science. She subsequently studied at Curtin University and was employed by the Red Cross Blood Service, initially as a medical scientist.
Nenad bought a Unit in Balga and the accused moved in with him in about 2007.
The accused and Nenad got married in Perth in 2008 and shortly before they got married they had a house built in Darch which they moved into in 2008.
Their first child Mia was born in 2009.
After Mia was born, the accused became more worried about the chemicals that she was using in the course of her work and at her request she changed roles from scientist to quality control officer.
Their second daughter Tiana was born in 2013.
Tiana was a generally healthy baby but soon after her birth her pediatrician heard a clicking sound coming from Tiana’s hips. That was monitored during her first 12 months.
In December 2016 the house in Darch was sold and the family moved to a new house in Madeley in early 2017.
In 2018 the accused became increasingly concerned at the clicking sound from Tiana’s hips. She would get Tiana to walk along the wooden floor and would have her head down listening out for the clicking sound.
The accused took Tiana back to the pediatrician and an X ray revealed that Tiana had mild hip dysplasia, a condition in which the hip socket doesn’t fully cover the ball portion of the upper thigh bone.
The pediatrician advised that this condition might resolve itself and recommended physiotherapy in the meantime.
The accused continued to do internet research on hip dysplasia and took Tiana to a physiotherapist who gave Tiana elastic straps and an exercise routine to assist her condition.
On subsequent visits to the pediatrician the doctor reassured the accused and Nenad that Tiana’s condition was mild and might resolve itself in the future.
In around 2019 the accused was struggling to sleep on a regular basis and in February 2019 she started complaining of stomach and chest pains and went to Joondalup Hospital to have these checked out.
Subsequent medical tests were unable to find anything physically wrong with her.
In mid‑2019 the accused stopped eating and her weight dropped from 70 kg to 60 kg. She appeared unhealthy
In July 2019 the accused appeared to her family members to be distancing herself somewhat from the family and spending a lot of time sleeping or lying down.
Around August 2019 the accused suggested preparing a will. Nenad suggested that they wait until her health had improved.
In mid-August the accused took Tiana to the doctors to have her blood tested and the results came back showing that Tiana had a low level of iron in her blood.
Those results appeared to shock the accused and she started to give Tiana iron-supplements.
As a result of her reaction to these results, the accused’s father Djuro was sufficiently concerned that he arranged for the accused to attend a Doctor in Cottesloe who had a lot of Serbian patients.
That doctor’s name was Dr Ponos and she prescribed the accused with Lexapro anti-depressants and Diazepam. She also referred the accused to a psychologist and a psychiatrist and gave the accused a sick note signing her off work for a month.
The accused saw the psychologist called Ms Pranjic and then a psychiatrist called Ms Stepanovic.
The following facts regarding the consultations between the accused and the psychologist Ms Pranjic come from Ms Pranjic’s witness statement at Brief pages 11 to 14.
In meetings with the psychologist Ms Pranjic between late August 2019 and early October 2019, Ms Pranjic observed that the accused appeared to be depressed, stressed and struggling with anxiety.
The accused told Ms Pranjic that her health had been deteriorating since October 2018 and that she had started to have panic attacks in February 2019.
She told Ms Pranjic that she had been anxious, had panic attacks and been in a generally low mood and that her mental health symptoms frightened her.
The accused told Ms Pranjic that she had lost weight, had not been sleeping well and that she had withdrawn from her social circle
The accused also told Ms Pranjic that she was happy in her marriage, that her husband was a good man and that she was happy with the relationship between her family and her husband’s family.
It appeared to Ms Pranjic that the accused was only worried about her job and a medical issue with her daughter which affected her hips.
Going back now to observations made by the accused’s husband Nenad.
Whilst the accused was on her first month of sick leave in August 2019, she was sleeping a great deal and Nenad was having to do all the housework.
The accused told Nenad that she was unable to concentrate so Nenad took over all basic duties around the house including cleaning, cooking and getting the children ready for school and bed.
On one occasion during this period the accused was in a low mood so Nenad took her to Sorrento Beach. He reassured the accused that everything would be fine and the accused told him that if anything happened to her he would be able to find someone else.
She referred to a family member who was looking after four children after his wife passed away and told Nenad that he should be able to look after two children.
Nenad told the accused that he loved her and didn’t want anyone else and they both cried.
In early September the accused went back to her GP and was signed off work for another month.
Around this time Nenad became concerned that the accused wasn’t taking her medication and began monitoring the blister packs in an attempt to check her compliance with her medication.
From 28 September to 1 October 2019, the accused, Nenad and the two girls went on a mini-holiday to Pemberton with members of their extended family.
The accused did not appear to enjoy the trip and appeared lethargic throughout. When they returned from the trip the accused spent a lot of time lying down in the master bedroom.
Nenad noticed that the accused became increasingly lethargic. She was not taking her anti-depressant medication regularly and she stopped having a daily shower. She stopped cleaning up around the house and the house was becoming increasingly messy. The accused was also sleeping with her running shoes on
Tiana’s birthday was on 2 October and the family had a birthday celebration at home. The accused spent the whole day in her bedroom.
Mia’s birthday was on 8 October and there was another family celebration at home. Again, the accused had little involvement in that celebration.
On the morning of Saturday 12 October 2019 Nenad spent some time cleaning the house while the children played.
The accused stayed in her room, only coming out occasionally to get something to eat or drink.
After lunch the accused called Nenad into the bedroom. She had a serious look on her face.
The accused asked Nenad what the plan was because she was unwell. She referred to the possibility that the Department of Child Protection would take the girls into care.
Nenad told the accused that he was fine to look after the children and that she just needed to take her anti-depressants regularly. The accused asked Nenad what would happen if she ended up in a mental hospital.
The accused appeared to Nenad to be worried that everyone would then tease the children because they had a crazy Mum. She appeared to be preoccupied with this and repeatedly asked Nenad what they would do.
Nenad advised the accused that they could move schools or move interstate if necessary and the accused eventually appeared to calm down a bit.
Sunday 13 October 2019 was 12 days before the killings.
On that day Nenad’s sister in law had a birthday celebration, There was a plan for the accused to go with the children to Kings Park and then to go on to the birthday celebration but on the day itself the accused stayed in bed and said that she didn’t feel like going.
The rest of the family went to the birthday celebration and the accused stayed in bed and was still in bed when the family later returned from the birthday celebration.
At around this time Nenad noticed that the accused appeared to be obsessed with her phone. She was reading things repeatedly on the phone. Nenad asked her if she was reading medical articles but the accused claimed that she was just reading the news,
On Monday, 14 October Nenad returned to work after his period of annual leave. He would ring the accused at about 8 am when he was at work and a few times a day to check on her.
Sometime during that week Nenad noticed on the accused’s phone an internet page referring to “how to tie a rope.”
He also noticed another page referring to “How to make a fatal wound.”
When Nenad asked the accused about it she claimed that it must have been the children who had accessed those pages on her phone.
Around this time, Nenad noticed that the accused had a cut on her leg which appeared deep and was about 7 – 8 cm long. The accused told Nenad that she had cut herself with a new razor but the cut did not appear to Nenad to be a shaving cut.
On 21 October, Nenad found a typed letter from the accused which contained statements of regret and ominous 'last-resort’ type statements such as 'no none knew about my plans’ and 'I’m sorry for everything but I don’t see a different way out.’[2]
[2] Statement of Nenad Djurasovic paragraph [283] at BP 71 and Report of Dr Mark HALL 17/4/20 at paragraph [47].
Nenad asked the accused about this letter and she told him she had written it a couple of months ago and that it didn’t reflect her current thoughts. Nenad asked her why the letter was dated 21 October and the accused told him that she had edited the letter and saved it again.
On Thursday 24 October, the day before the killings, the accused appeared to Nenad to have improved somewhat. She was helping out around the house a bit more and was helping to bathe the children.
Nenad was relieved and thought that things were improving.
During the three-month period prior to the killings, other family members had noticed the accused’s change in demeanour and her lethargy.
Her mother Milica Pajic saw that the accused would have apparent panic attacks when she would just burst into tears and blame herself for anything and everything.[3]
[3] Statement of Milica Pajic paragraph [19] at BP 131.
The accused would say that everything was her fault and that Tiana would grow up with problems with her hip.[4]
[4] (supra) paragraph [20] at BP 132.
The facts read so far are derived from the evidence of people acquainted with the accused. The facts that follow relating to the period before the killings are derived from disclosures made by the accused after the killings to Dr Pascu and referred to in Dr Pascu’s report dated 30 December 2020.
The accused reported that between July and August 2019 her mood continuously deteriorated and she felt more depressed.[5]
[5] Report of Dr Victoria Pascu 30 December 2020 at paragraph [48].
Her depression worsened to the extent that she felt unable to function in her day-to-day activities and she started to think about what would happen to her children should she die. Her dreams became worse, more bizarre and she reached the stage that she didn’t know whether her dreams were real or not.[6]
[6] Report of Dr Pascu para [49].
She started thinking that everybody wanted to hurt her by hurting her children.[7]
[7] Supra [50].
Her thoughts became increasingly negative and she felt they were increasingly taking over her life.[8]
[8] Supra [51].
She felt her thoughts were coming from outside her head and that the only way she could stop that from happening was to kill herself.[9]
[9] Supra [53].
In the last two or three weeks before the killings the accused’s mood was very low, she was not getting any sleep and she would just stay in bed ruminating and having ongoing thoughts about killing herself.[10]
[10] Supra [70].
In September 2019 she started researching the internet about how to commit suicide and she had difficulties focusing on anything else except how to kill herself.[11]
[11] Supra [71] - [72].
As she thought increasingly about suicide, she thought that she could not leave her children behind and she then started thinking about how they could “all go together.” [12]
[12] Supra [76].
She increasingly catastrophized in her own mind what would happen if she died and the children were placed in care after her death.[13]
[13] Ibid.
As her mental state deteriorated it made sense to her that she had to die. She looked at the tags on her children’s school bags and they looked like morgue tags and she thought it meant that she and the children had to go.[14]
[14] Supra [77] and Report of Dr BRETT 24/8/21 paragraph [12].
Turning now to the day of the killings.
At about 6.45 am on Friday 25 October 2019, Nenad left the family home to go to work at Sir Charles Gairdner Hospital. When he left the house, his daughters were playing and were dressed in their pyjamas. The accused was still in bed.
The accused got up at about 7am and had the thought that “today’s the day.”[15]
[15] M. Hall, Psychiatric Report (17 April 2020), 52.
She took the knives, machetes and rope from the laundry and put them in the pantry.[16]
[16] Ibid.
Tiana saw the rope and knives and started crying. Tiana said “are you going to do something to me? I want to go to school.”[17]
[17] Ibid.
The accused then 'snapped out of it’ and got the children ready for school.[18]
[18] Ibid.
At about 8 am, Nenad had phoned the accused to check on the girls. During that call the accused sounded “upbeat and normal” according to Nenad.
At about 8.40 am, Nenad rang the accused again who complained that the girls were fighting about pencils.
The accused left the house with Tiana and Mia in her vehicle at 8.45 am and returned at 9.06 am.
Between those times she had driven with the children to school. She parked near the school office for ease of obtaining a 'late note’ and began to think about whether or not to proceed with her plans for that day.[19]
[19] Ibid 53.
After a few minutes of sitting in the car she decided to return home. Mia said that she wanted to go to school but the accused locked the car doors. She placated Tiana by telling her they were going to go shopping.[20]
[20] Ibid.
After they arrived home, Mia went into the home theatre to use her iPad and Tiana was following the accused around.[21]
[21] Ibid 54.
At that point the accused was undecided as to whether she would follow through with her plans that day.[22]
[22] Ibid.
By about 10.30am the accused resolved to proceed with her plan which was to kill the children and kill herself.[23]
[23] Ibid 55.
The accused plugged a vacuum cleaner into the wall and left it running to drown out any sound the children might make.[24]
[24] Ibid 56.
She then persuaded Tiana to go into the pantry. She approached Tiana from behind and placed a rope around her neck. Tiana said, “it hurts” and was moving her arms around.[25]
[25] Ibid.
Tiana lost consciousness after a couple of minutes and the accused then transferred the rope onto the doorhandle to maintain tension while she went to check on Mia and to check that Mia hadn’t been disturbed by the noise.[26]
[26] Ibid.
After a couple of minutes the accused returned to Tiana and took her to her (Tiana’s) bedroom.[27]
[27] Ibid.
Again, the accused placed the rope on a doorhandle to provide tension and waited for Tiana to die which took about 30 minutes.[28]
[28] Ibid.
During that time the accused was pacing round the house and coming in and out of Tiana’s room and checking her pulse.[29]
[29] Ibid.
Once she had confirmed that Tiana was dead the accused placed her on the bed.[30]
[30] Ibid.
After she had killed Tiana the accused tried to get Mia to take a Diazepam tablet but Mia wouldn’t do so.[31]
[31] Ibid 57.
The accused told Mia that she had a surprise for her and blindfolded her.[32]
[32] Ibid.
The accused took Mia to the pantry but Mia got scared and said “I feel like you’re going to stab me with a needle” and took the blindfold off herself.[33]
[33] Ibid.
Mia then saw the knives and ropes and got scared and upset.[34]
[34] Ibid.
Mia managed to get out of the pantry and asked the accused what was going on.[35]
[35] Ibid.
The accused was able to placate Mia and got her to vacuum the kitchen as a means of distraction.[36]
[36] Ibid.
At that point the accused thought about letting Mia live but concluded that Mia would be unable to live with the death of both her sister and her mother.[37]
[37] Ibid 59.
The accused told Mia that she (Mia) needed to vacuum the pantry.[38]
[38] Ibid.
When Mia went into the pantry the accused tried to strangle her with a rope.[39]
[39] Ibid.
Mia was fighting her and telling her “you need to get better.”[40]
[40] Ibid.
The accused and Mia struggled for several minutes. It was not easy to induce unconsciousness because the rope was not properly seated around Mia’s neck.[41]
[41] Ibid.
The accused therefore grabbed a knife and tried to stab Mia in the neck with it.[42]
[42] Ibid.
Mia continued to struggle for 5 or 10 minutes and Mia was grabbing the knife resulting in both the accused and Mia suffering cuts.[43]
[43] Ibid.
As Mia bled, she became progressively weaker. The accused was better able to place the rope around Mia’s neck and she proceeded with the strangulation.[44]
[44] Ibid.
It took less than 30 minutes for Mia to die after that. The accused again repeatedly paced the house and kept coming back to check Mia’s pulse.[45]
[45] Ibid.
The accused wanted to move Mia to her (Mia’s) bed, as she had done with Tiana, but Mia was heavy and there was a lot of blood so she was difficult to pick up.[46]
[46] Ibid 60.
The accused then spent some time pacing the house. She kissed and hugged the girls and[47] got some toys and placed them next to each girl.[48]
[47] Ibid 63.
[48] Ibid 61.
There were bloodstains in various rooms of the house and in the garage but these were identified through DNA analysis as being the blood of the accused, not Mia and are presumed to result from the infliction of self-harm by the accused and some or all of the injuries noted upon her arrest.
At around 2 pm, the accused’s husband received a text message from the accused asking him to pick up some Doritos and some milk on his way home
The accused then went to the garage and put two nooses around her neck. She then climbed a small ladder and pushed it away from her.[49]
[49] Ibid 62.
The accused had pre-fashioned the noose about a week earlier having watched an internet video about how to prepare a noose.[50]
[50] V. Pascu Psychiatric Report (12 October 2020) 33.
She awoke after 5-10 minutes of hanging, having been incontinent of urine. She managed to get the ladder back underneath her and released herself form the nooses.[51]
[51] Ibid. 1, 62.
The accused then panicked because her planned method of suicide had failed.[52]
[52] Ibid.
At about 2.47 pm the accused video-recorded herself on her phone. The recording lasted some 37 seconds, depicted her face only and appeared to show the accused with blood on her face and what appears to be a rope mark around her neck, associated with the suicide attempt referred to above.
In that recording the accused spoke in Serbian, a translation of which is as follows:
“I’m sorry everyone, I’m sorry”;
“I did not know how else” ;
“They were ok, they did not suffer too much”;
“That is Tiana, Mia fought a bit more”;
“ If I’m not finished yet as you are watching this”;
“Nenad, Please let me die, please let me”;
“I’m sorry ah sorry, sorry everybody, it’s all my fault, sorry, sorry, sorry.” At about 3.15 pm the accused’s husband rang her. He normally received notification on his phone when the house alarm was set and deactivated and not having received any notification that the alarm had been set, he thought that the accused may have forgotten to pick the girls up from school.
The accused answered the phone and told Nenad that she had picked up the girls from school. She also spoke about them going to a barbeque lunch with her father the following day.
Around this time, the accused got another rope and improvised a hanging arrangement in her wardrobe.[53] She is unsure whether this was before or after the phone call with the accused’s husband referred to above.
[53] Ibid.
The accused passed out but subsequently woke up. The accused then went into the bathroom and cut herself on the neck and arms with the machetes then got into a bath of warm water. The bleeding was very slow because she had not cut any major vessels or arteries. She then cut her legs to accelerate the bleeding but that was ineffective for the same reason.[54]
[54] Ibid.
She then exited the bath to put a note in the garage asking her husband to let her keep bleeding if he found her alive.[55]
[55] Ibid.
The accused then decided that she ought to leave the house and re-attempt suicide.[56]
[56] Ibid 1, 63.
She collected up the machetes, some hydrochloric acid, some whiskey and some pills. She also took water, bread, her ATM card and a blanket. She left her phone behind.[57]
[57] Ibid.
At 4.19 pm the accused’s vehicle was captured on CCTV leaving the house.
At about 5.45 pm the accused’s husband returned home and found Mia dead in the pantry. He was unable to locate Tiana during his search of the house.
Police and ambulance were called to the house and located Tiana on her bed, covered with a blanket.
Police commenced a search for the accused’s vehicle and it was located a short time later at a car park near Whitfords Beach some 10 to 15 minutes’ drive from her house.
At the beach the accused was planning to wait until it was dark and then walk into the ocean. She had tried to drink the acid she had brought with her but was unable to drink it all[58].
[58] Ibid 2, 43.
The accused was found by police in sand dunes about 100 metres away from her vehicle. She was lying down and covered in a grey blanket and dressing gown.
On being advised of her rights the accused was sobbing and said, “I just want to die.”
When located by police the accused had serious self-inflicted sharp force injuries and had drunk some hydrochloric acid. Police located two large machete knives underneath the accused and a smaller knife sticking though a green shopping bag in the accused’s immediate vicinity.
The accused was taken to Royal Perth Hospital for treatment.
In their search of the house police found a number of notes that the accused had written and typed.
Typed note 'SME 16’ included the following words:
“I love my girls more than anyone and anything and I am so sorry for not looking after them better.”
“I should have been more 'connected’ to my husband and friends. I did not like talking about my problems. I wish I had. I am so sorry for everything.”
A handwritten note 'SME 21’ addressed to the accused’s husband was dated 11/10/19 and included the following words translated from the original Serbian:
I should have looked after everything more, I can’t any more;
You now that the kids would grow up with problems and depression if only I go. You have knives in my clothes drawer;
I am at fault for everything...Sorry. I love you. And I love our girls the most in the world and Hate myself every second. I wouldn’t want them to grow up in a care of state and that anyone can abuse them And that nobody is friends with them. And that they are themselves helpless. And that they do not have a nice life like we had planned.
…
I can’t have them grow up without me;
They are already nervous / anxious. I wouldn’t want them to end up on medication, doing drugs, and all that is killing me;
I did nothing bad on purpose but that is how it ended up;
I thought that only I go but it would be horrible for them, just like it is for you now. Nenad didn’t know how bad / unwell I am, nobody didn’t I am very sorry and I hate myself and it is my fault but it can’t be different.
A search of the house located two knives in the sink of the ensuite bathroom of the accused’s bedroom. These were forensically tested and one (SME3) revealed the presence of Mia’s blood on the blade and the accused’s DNA on the handle.
The location of bloodstained clothing, towels and bloodstained water in the bath indicated that the accused had changed clothes to some extent after the killings.
Further police investigations revealed evidence that the accused had purchased a machete on 26 September 2019, a sash cord on 6 October 2019 and a rope on 10 October 2019.
On a date unknown she also purchased a whole knife block after she had made Google enquiries which revealed that different types of knife were better for inflicting different injuries. [59]
[59] Ibid 1, 40.
A post-mortem examination of the deceased girls was conducted with the following relevant results:
Mia Djurasovic
A ligature mark on the neck with fine spotty bruises (petechiae) present on the face and eyes;
A stab wound to the right side of the neck which extended to the spine;
Multiple, more superficial, sharp force injuries (incised wounds) to the left side of the neck;
Further sharp force injuries on the upper limbs with an injury of an artery of the right hand;
These arm injuries included an incised injury to the lateral aspect of the right upper arm approximately 115mm in length and 17mm wide with a depth of 7mm.
Toxicological analysis of Mia’s blood detected traces of Diazepam, a drug used to treat anxiety disorders which was prescribed to the accused but not to Mia.
Cause of death was recorded as 'multiple injuries.’
Tiana Djurasovic
A ligature mark on the neck with spotty bruises (petechiae) on the skin of the face and eye surfaces. No other significant injuries were noted.
Cause of death was recorded as 'ligature compression of the neck.’
Interviews with the accused
The accused was not initially interviewed owing to her state of mental and physical health and on 27 October 2019 she was charged with two counts of murder.
On 14 November 2019, police interviewed the accused at the Frankland Centre.
The accused answered general background questions and admitted to the authorship of some of the notes recovered by police in their search of the house.
The accused initially declined to speak about the events of 25 October 2019 although she told police about her trip to the school with the girls referred to previously in these facts.
After about 50 minutes the accused asked police for a break and the interview was suspended. The accused did not return to the interview room thereafter.

The expert evidence

Dr Mark Hall

Dr Hall is a consultant forensic psychiatrist who has been practicing for many years and has prepared reports and given evidence in the District Court and the Supreme Court. He was commissioned by the defence to produce a report, which is dated 17 April 2020.[60]
[60] Exhibit 9.
Dr Hall conducted three interviews with the accused at Bandyup Women's Prison on 31 January 2020, 7 February 2020 and 14 February 2020. These interviews were for the purpose of obtaining a history of the accused and conducting a mental state examination as to her current condition. Dr Hall noted that the information provided by the accused was consistent with collateral sources of information, including other witness statements contained in the prosecution brief.
The accused told Dr Hall that in 2018 she became very preoccupied with Tiana's hips. Specialists had indicated mild hip dysplasia. The accused believed that she should have done something differently and she was disappointed and distressed to find that Tiana's hips were not perfect. She formed an irrational belief that because she had not done something to prevent this from occurring, Tiana was going to have serious problems in the future.
Around the same time, the accused started to experience pain in her upper abdomen and was prescribed medication for reflux. However, the pain persisted and in January 2019 she underwent a CT scan that revealed a hiatus hernia. The pain continued and the accused became increasingly worried that she was having a heart attack. Despite her doctor telling her that there was nothing wrong with her heart, she was not reassured. Around February 2019 she started to wake in the early morning with shortness of breath and chest pain. On one occasion she attended a hospital Emergency Department because she thought she was having a heart attack. In Dr Hall's view, the accused was experiencing symptoms consistent with a panic attack.[61] After returning from the hospital the accused continued to have persistent palpitations, shortness of breath, anxiety and inability to sleep.
[61] Exhibit 9 [27].
In March 2019 the accused was having nightly dreams about Tiana's hips. She also continued to be worried about dying from some undiagnosed heart condition and leaving her children without a mother. She felt agitated and suffered from insomnia. She began withdrawing and spending less time with her family. Her preoccupation with guilt over Tiana's hips would intrude even when she was doing other things. By April 2019 she was also becoming preoccupied with concern about dental work for Mia.
Between April and June 2019, the accused lost her appetite and began losing weight. She described feeling mentally agitated 'like I was on speed'. She continued to wake in the early morning and engaging in negative rumination and self‑criticism regarding 'past decisions'. She would wake in the morning feeling very agitated and 'unable to face the day’.[62]
[62] Exhibit 9 [30].
By June or July 2019, the accused's guilty ruminations had intensified to the extent that they interfered with her ability to attend to everyday tasks, including work. However, she had no insight into the abnormal nature of the extent of her preoccupation about Tiana's hips and very little insight into her developing depressive illness. She did not seek help as she believed that her depressed mood was a natural consequence of her own poor choices. Her shame as to those choices was too great to reveal them to a doctor.
By around July or August 2019, in addition to low mood, agitation, insomnia, loss of appetite, weight loss, inability to mentally attend to tasks and guilt preoccupation, the accused was having panic attacks several times a day during which she would tremble and vomit. She described having scattered thoughts and 'dreams of hell' which was 'a cold, foggy place'. She would wake in the morning with a bad feeling that would last all day. She stopped believing in God and felt like 'a zombie' in the sense that she could not feel anything.[63] She then realised she had depression but did not believe it was treatable because the health issues that concerned her were events that had actually occurred.
[63] Exhibit 9 [32].
The accused described the development of nihilistic ideation. She felt so cold inside that she did not see how her state was compatible with existence, but this state was nonetheless interminable and inescapable. Nihilistic contemplation of her non‑existence, even in the absence of a fully formed suicidal ideation at that stage, led her to worry about being absent from her children and that, in their grief, her children would experience the same fate. As she described it, her children 'will be stuck in this hell'.[64] She did not share these beliefs with anyone and had no insight into the pathological nature of her beliefs.
[64] Exhibit 9 [32].
By August 2019 the accused felt so hopeless that she began to have much more frank suicidal ideation, despite the absence of formed plans at that stage. At around that time, she took Tiana for a blood test that revealed low iron. She became obsessed with the results of this test and viewed it as evidence of her failure as a mother. Her husband reports that around this period the accused had become very jumpy, she would punch her legs for no reason and that her legs would jerk at night whilst she was in bed.
On 19 August 2019, the accused attended a general practitioner who spoke Serbian. The accused said that at this time she was finding it harder to speak English so found it easier to seek a doctor who spoke Serbian. The doctor undertook some testing using the Depression Anxiety and Stress Scale (DASS‑21) which indicated that the accused was in the severe range on the depression axis and in the extremely severe range on the anxiety axis. The doctor prescribed the accused an antidepressant and Diazepam for the anxiety. A referral was also given to see a psychiatrist. The accused did not disclose her suicidal ideation to the doctor because she felt ashamed to do so. Further, she did not take the antidepressant medication because she could not see how it could possibly change history or her own feelings of guilt about things that had actually occurred.
The accused attended on the psychiatrist to whom she had been referred on 7 September 2019. The psychiatrist's notes indicated that the accused was difficult to engage and provided only short responses to questions, that she described her mood as a little sad but not depressed and that she denied any current or past suicidal ideas. The psychiatrist diagnosed the accused as suffering from generalised anxiety disorder and dysthymia (pervasive low‑grade depressed mood in the absence of other symptoms of a depressive episode). This diagnosis had a marked disparity with the score on the Depression Anxiety and Stress Scale administered by the general practitioner. However, the accused said that she under-reported her feelings and beliefs to the psychiatrist and did not reveal her suicidal thoughts.[65] The psychiatrist managed to convince the accused to take antidepressant medication but she did so only erratically because she believed that there was no point in doing so.
[65] Exhibit 9 [39].
Sometime after this, the accused began to buy items with which to kill herself. She was undecided as to the method and so purchased ropes and knives. She also began to undertake research on the Internet as to how to inflict fatal injuries. Without revealing her plan, on one occasion she asked her husband how he would cope if she was gone. Her husband told her that he would manage but he did not think that the girls would be able to manage in her absence. This caused her to believe that there would be disagreement about care arrangements for the children. She also had increasing fear that her children would be trapped through eternity in a cold, zombie like hell following her passing. This led her to have thoughts about killing the children in addition to herself so that she could save them from that fate.
Around late September the accused's suicidal ideation became cemented, though she was undecided in relation to killing her children. Her depressed mood continued and she stopped having showers, was very messy around the house, and began sleeping with her running shoes on. Approximately two weeks prior to the killings, the accused began spending time laying down in her room and only coming out to eat or drink. She became absolutely convinced that the children would be ruined, either by her mental illness or by her suicide.
On 21 October 2019 the accused's husband found a typed letter containing statements of regret and some ominous 'last resort' type statements. This was a letter that the accused had begun writing a few months earlier and had been constantly updating. On the same day, the accused's husband also found a bottle of hydrochloric acid. She told him that this was for cleaning purposes and he accepted the explanation. She moved the knives and rope that she had purchased the following day because she was worried that her husband might find them.
On 24 October 2019 the accused began to feel that she needed to accelerate her plans for suicide because she was concerned that her husband might attempt to stop her. On that day, she wrote another letter in order to explain things. According to her husband, the accused appeared to have improved on this day. She smiled more and was helping around the house. She helped him with bathing the children and with housework.
The following day, 25 October 2019, the day of the killings, the accused said that she woke up thinking that 'today's the day'.[66] She got the knives and rope from the laundry and put them in the pantry. The events of that day have been described in more detail in the statement of agreed facts. The accused said that she was undecided as to whether she would follow through with her plan until after returning home from the school. After killing the children, she attempted to kill herself by hanging, both in the garage and then in a wardrobe. When those attempts failed, she cut herself and got into a bath filled with warm water. When this also failed, she worried that it was getting late and felt time pressure. In these circumstances, she decided that she ought to leave the house to re-attempt suicide. She went and kissed the girls, collected up some knives, the hydrochloric acid and some whisky and some pills. She drove to Whitfords beach car park with the intention of cutting herself or walking into the sea to drown. She tried to drink the hydrochloric acid but said that it burnt her mouth and tasted bad. Soon afterwards she was located and arrested.
[66] Exhibit 9 [52].
Dr Hall said that the accused's lifelong personality style is characterised by obsessional traits including perfectionism, stoicism, task orientation, indecisiveness and a vulnerability to guilt and self‑remonstration. She utilises the psychological coping mechanism of 'isolation of affect' whereby negative emotions are screened off in the conscious mind only to manifest, indirectly, in other ways, most commonly as physical symptoms.[67] In interviews with Dr Hall the accused exhibited numbness and superficial reactivity. He said that this was a defence mechanism whereby painful feelings are screened out by not experiencing the emotion associated with the trauma. He stressed that this was not a voluntary or conscious action and, as such, should not be interpreted as callousness or lack of remorse.
[67] Exhibit 9 [75].
In Dr Hall's opinion, the accused has suffered a lifelong history of unhealthy patterns of negative self‑referential thinking that have been consistent and constant and occur outside of her conscious awareness. The predominant things present in her negative thinking have been holding herself to an impossible standard and catastrophising. She also has a long history of abnormal anxiety symptoms for which she has never received a diagnosis or treatment. She has experienced a mixture of obsessive/compulsive symptoms, body dysmorphia, illness anxiety (hypochondriasis), simple phobias and panic attacks. These symptoms justify a diagnosis of generalised anxiety disorder.[68]
[68] Exhibit 9 [77].
Dr Hall said that the accused's personality style and her anxiety disorder has rendered her vulnerable to rapid and problematic escalation in anxiety and rumination, coupled with an inability to process that distress on a conscious level, when triggered by stressful events or circumstances. This in turn leads to vulnerability to the further development of depression due to both the wearing down of coping resources and the neurobiological underpinnings common to both anxiety and depression.
In Dr Hall's view, the accused's downward trajectory commenced in 2017 in the context of a number of stressful events. The insidious escalation of her anxiety continued, and she developed obsessional doubt and preoccupation regarding her daughter's hips which then progressed to guilty rumination. Any insight into her escalating anxiety disorder and the development of depression was prevented by her defence of isolation of affect.
Dr Hall said the accused was suffering a major depressive episode that had become fully expressed. This is confirmed by so called 'physiological shift' symptoms including agitation, loss of appetite and insomnia.[69] Her guilty preoccupation became delusional around July 2019. In Dr Hall's view, this preoccupation was delusional in the sense that it was fixed, firmly held on inadequate grounds, and unable to be altered by evidence or rational argument to the contrary. As such, at that point, the accused had progressed to suffering from a severe, major depressive disorder with psychotic features. The presence of delusions was consequent to, and indicative of, the severity and progression of her depressive illness. The depressive illness was secondary to, and superimposed upon, her untreated generalised anxiety disorder.[70]
[69] Exhibit 9 [79].
[70] Exhibit 9 [80].
Dr Hall said that in August 2019 the accused's delusional guilt was complicated by a sense of nihilism in that her internal affective state was that of cold, bleak nothingness. This, together with delusions of guilt, precipitated suicidal ideation. She then envisaged that in the event of successful suicide her daughters would be left with the same inescapable and interminable cold, bleak nothingness. She had no insight into the delusional nature of her guilty and nihilistic beliefs.[71]
[71] Exhibit 9 [81].
Dr Hall said that at the time of the alleged offending, the accused was suffering from a severe major depressive disorder with psychotic features. She was experiencing nihilism characterised by an empty, cold nothingness that was in her mind incompatible with existence. Her belief that it was interminable and inescapable reflected a profound hopelessness that was itself a product of the depression in that it defied logic and reasoning. Coupled with the above was her delusional guilt, related to what she irrationally but firmly believed were failures of mothering on her part that would adversely impact her children to an untenable extent. She became suicidal in the context of the above. In considering the effect of her suicide on her children, she came back around to the empty, cold nothingness that was incompatible with existence and assumed that her children would be stuck in the same interminable and inescapable hell. In that sense, she believed that killing her children was an altruistic act that released them from certain doom and that it would have been inhumane to leave them behind.[72]
[72] Exhibit 9 [83].
Dr Hall said that psychiatric formulation of the accused's homicidal ideation was predicated on the assumption that her attempt at suicide, which ultimately failed, was indeed genuine. He said that he was of the firm opinion that her suicide attempt was genuine.[73] She incorporated redundancy in her method of suicide by having extra ropes and other methods to kill herself. However, the indecisive aspect of her personality, amplified by the indecision inherent in major depression, caused her to be unable to decide for some time whether she would proceed with strangulation or use a knife. When her planned suicide method failed, she was unable to devise another successful method. She was also relieved of some of the intense energy and tension that had reached a crescendo during the killing of her daughters. Dr Hall said that it was not at all uncommon in intended murder-suicides for the suicide to fail for a combination of reasons such as this.
[73] Exhibit 9 [84].
In considering the capacities referred to in s 27 of the Criminal Code, Dr Hall came to the following conclusions. He said that the accused was not deprived of the capacity to understand what she was doing. That is, she understood that she was killing her children. Nor was she deprived of the capacity to control her actions. That is, her actions were not the result of an irresistible impulse. They were planned and premeditated. However, in his opinion, the accused was deprived of the capacity to know that she ought not to do the acts which caused the deaths of her children. That is, she believed the killing of her children was an altruistic act that would release them from certain doom and that it was inhumane to leave them alive following her intended suicide. Her delusional mental state caused her to believe that her daughters, were they to go on living after the suicide of their mother, would be trapped in an empty, cold nothingness that was incompatible with existence, interminable and inescapable.[74]
[74] Exhibit 9 [83].
In oral evidence, Dr Hall was asked with what degree of confidence he held the opinion that the accused had a mental infirmity that deprived her of the capacity to know that she ought not to do the act. He said that he held that opinion with a high degree of confidence.[75]

Dr Victoria Pascu

[75] ts 42 - 44.

Dr Pascu is also a consultant forensic psychiatrist of many years' experience. She has given evidence on numerous occasions in the courts, including in the Supreme Court. She too interviewed the accused for the purpose of obtaining a history and conducting a mental state examination.[76] She had access to the prosecution brief and other materials.
[76] Exhibit 8.
Dr Pascu interviewed the accused at Banyup Women's Prison on 16 and 23 July 2020. The information provided by the accused to Dr Pascu was not materially different from that provided to Dr Hall and, thus, it is unnecessary to repeat that history.
In Dr Pascu's opinion, the accused has a history of generalised anxiety disorder and an obsessional perfectionistic personality structure. Over the years she coped with her anxiety and obsessional personality style by appearing to detach emotionally from situations which may further increase anxiety. Her history of anxiety and her personality structure predisposed her to the development of the depressive illness.[77]
[77] Exhibit 8 [137], [139].
Dr Pascu is of the view that towards the end of 2017 the accused's mental state started to deteriorate in the context of a number of stressors, including the family moving to a new house, work related issues and increasing preoccupation with health problems of her daughter and herself. By early 2018, she was becoming increasingly suspicious and interpreting her dreams. This led to obsessional thoughts and an increasing preoccupation with her daughter's hip dysplasia. Her anxiety and depression presented in symptoms such as experiencing gastric and chest pain and experiencing panic attacks which caused her to present to the Emergency Department of a hospital.
Dr Pascu says that by early 2019 the accused's depressive symptoms gradually deteriorated with the development of 'physiological shift symptoms' including deteriorating sleep, reduced energy levels, reduced appetite and increasing levels of agitation associated with the worsening depression. She also experienced constant ongoing preoccupation with the guilt related to her children's and her own health. In Dr Pascu's opinion, this guilty preoccupation developed a delusional character by July or August 2019. Soon after this, the accused appears to have developed delusions of nihilism and feelings of emptiness which led to her developing more persistent thoughts of suicide.[78]
[78] Exhibit 8 [144] – [145].

Dr Pascu believes the killings occurred in the context of the accused's untreated severe major, agitated depressive illness with psychotic symptoms. She says that it is known in the psychiatric literature that mothers suffering from depressive illness with suicidal ideation may consider killing their children as an altruistic act, feeling that they could not leave their children alone in the world.[79]
[79] Exhibit 8 [150].
In Dr Pascu's view, the accused's suicide attempt was a genuine attempt for her to release herself from the torment of her feelings.[80] Following the death of her daughters it is likely that the intensity of her emotions somewhat decreased, which likely contributed, together with her underlying indecisiveness as part of her obsessional personality style, to difficulties in deciding whether to proceed with hanging herself or to stab herself.
[80] Exhibit 8 [151].
As to the relationship between the accused's mental illness and the killings, Dr Pascu is of the view that the undiagnosed and under treated severe major depression with psychotic symptoms, together with the background of significant generalised anxiety disorder and her obsessional personality structure, all contributed to her impaired judgement.
Dr Pascu concluded that it was more likely than not that at the time of the killings the accused believed that she had to commit suicide and save her daughters from being left behind without their mother. Whilst the accused was not deprived of the capacity to know what she was doing, or the capacity to control her actions, she was deprived of the capacity to know that she ought not to do the act which caused the deaths of her children.[81]

Dr Adam Brett

[81] Exhibit 8 [153], [155], [159].

Dr Brett is also a consultant forensic psychiatrist with many years' experience in providing reports and giving evidence in the courts, including the Supreme Court. He was engaged by the prosecution to prepare a report[82] and interviewed the accused at Bandyup Women's Prison on 9 August 2021 and 17 August 2021. He also had access to the prosecution brief and other materials relating to the case. Again, the history provided by the accused to Dr Brett was not materially different from that provided to Dr Hall and it is unnecessary to repeat it.
[82] Exhibit 7.
In Dr Brett's opinion, the accused has a presentation and a history that is consistent with major depression with possible psychotic features. This condition developed some time before the killings and worsened in the months preceding them.[83] Dr Brett noted that the information provided by the accused was consistent with other collateral sources of information. He said that the accused developed suicidal ideation and researched and made plans to kill herself as the episode continued. She described nihilistic delusional beliefs regarding her future and the future of her children.
[83] Exhibit 7, 18.
Dr Brett said suicide is a rare event and difficult to predict. The mainstay of management can be managing the underlying depression. Murder parasuicide is an even rarer event and thus even harder to predict. He said that in retrospect there were risk factors for completed suicide however, this would have been much harder to assess at the time. He also notes that the accused was good at putting on a 'brave face' and minimising her symptoms.[84]
[84] Exhibit 7, 18.
Dr Brett says that it appeared that the accused presented as a bit brighter in the days before the killings. He said that this could occur when people have decided to undertake their plans and are less agitated as a result. Another reason can be that medication was starting to work which increased energy levels and made her more likely to act on her thoughts.
In Dr Brett's view, the offending behaviour was consistent with that defined in the literature as altruistic murder parasuicide or extended suicide. That is, the accused was so depressed that she believed that her life was not worth living and that she wanted to save her children from the same fate. These beliefs are consistent with delusions. That is, she held these beliefs firmly; they would not have been amenable to rational debate and they were held with faulty logic.[85]
[85] Exhibit 7, 18, 19.
In Dr Brett's view, at the time of the incident the accused had a mental impairment as defined in the Criminal Code, namely the mental illness of major depression with psychotic features. Whilst he did not believe that the accused was deprived of the capacity to understand what she was doing, or to control her actions, he is of the opinion that she was deprived of the capacity to know that she ought not to do the acts.[86] She believed that the world was a terrible place and that she felt like a zombie. She did not believe that her depression was treatable and that if she went to hospital she would be drugged and raped. She did not want her children to live in the horrible world or to suffer how she was suffering. She believed that it was the best thing for her children to die and then she tried to kill herself.[87]
[86] Exhibit 7, 19.
[87] Exhibit 7, 19.

General legal principles

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: s 120(2) of the Criminal Procedure Act. Amongst the most fundamental principles in any criminal trial are the presumption of innocence and that the prosecution bears the onus of proving each element of the offences charged beyond reasonable doubt. If the prosecution fails in this regard then the charge is not proven and the only proper verdict is one of not guilty.
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. This is an aspect of the requirement that a charge be proven beyond reasonable doubt.
Before the accused can be convicted of the crime of murder, it would have to be proven beyond reasonable doubt that she committed that offence. The relevant elements of the offences, for the purposes of this trial, are that the accused killed each of Tiana and Mia Djurasovic, that the killings were unlawful and that she did so with either an intention to kill or an intention to cause an injury that was or was likely to be life endangering.
It is unlawful to kill any person unless the killing is authorised, justified or excused by law: s 268 of the Criminal Code. A person who causes the death of another, either directly or indirectly, is deemed to have killed that other person: s 270 of the Criminal Code. In the present case, the accused accepted that she caused the deaths of her children. I am therefore satisfied beyond reasonable doubt that she did kill them.
Whether a killing constitutes the offence of murder depends upon the intention of the accused at the relevant time. In the present case a defence of insanity has been raised. Where that defence has been raised, it is necessary to consider whether the accused is criminally responsible for the killings having regard to s 27 of the Criminal Code. Only if that question is answered adversely to the accused does the next question arise, namely, what was her intention at the relevant time. The issue of insanity falls to be determined before the issue of intent: 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 proven that the accused had the intention to kill or cause a life endangering injury to each of her children at the time of the killing.
In assessing the evidence and reaching a verdict, it is important to guard against any feelings of prejudice or sympathy. Such feelings must be put aside and the question of guilt determined on an objective and dispassionate assessment of the evidence.

Insanity – legal principles

Section 27 of the Criminal Code provides as follows:
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.
As is evident, the section contains two bases for relieving a person of criminal responsibility where there is a mental impairment. The first of these is where the mental impairment deprives the person of one of the relevant capacities. The second only arises where a person has the relevant capacities but nonetheless has a delusion which affects some specific matter that is relevant to the charge. In the present case the first basis is relevant, and the defence case is that the accused was deprived of the capacity to know that she ought not to do the acts which caused the death of her children.
Section 1(1) of the Criminal Code defines 'mental impairment' as including mental illness, and mental illness is itself 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 Lang [No 2] [2016] WASC 206, Jenkins J referred to what is meant by a disease of the mind and a mental imparirment. I respectfully adopt what her Honour there stated:[88]
[88] Lang [No 2][27] – [30].
In R v Radford (1985) 20 A Crim R 388, 396, King CJ, of the South Australian Court of Appeal, said in relation to the meaning of the expression 'disease of the mind' when it is used in relation to the law of insanity:
(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'.
King CJ's comments were generally approved of in the context of the then Criminal Code provisions in R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 54, 60, 76 and 82.
When Falconer was decided, the Criminal Code s 27 was differently worded. The subsequent amendments to the Criminal Code are consistent with King CJ's statement of principles in Radford, although the definition of 'mental impairment' is broader than that of 'disease of the mind' which was considered by King CJ.
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 decider of fact.
Every person is presumed to be of sound mind unless the contrary is proved: s 26 of the Criminal Code. Accordingly, the accused has the burden of proving insanity and the standard of proof is the balance of probabilities: R v Porter [1933] HCA 1; (1933) 55 CLR 182.
As to what is meant by capacity to know that a person ought not to do an act, Dixon J said in Porter:[89]
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'.
[89] Porter (189 - 190).
Dixon J went on to say that what is meant by 'incapacity' in these contexts is 'not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong'.[90]
[90] Porter (190).
In Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 the High Court held that there is no requirement that an accused knows that the act is wrong in the sense of contrary to law. What is required is that the accused knows right from wrong, good from evil, not legality from illegality. However, the High Court observed:[91]
The truth perhaps is that, from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong … he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.
[91] Stapleton (375).
The High Court also held in Stapleton that the capacity which must be found to be lacking is not merely a capacity to appreciate in some abstract sense that others would have viewed 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 that would lead ordinary people to consider the act to be right or wrong: see, Evans v The State of Western Australia [2010] WASCA 34 [60] (Wheeler JA, Owen JA agreeing).
Also in Evans, McLure P considered what is meant by the word 'know' in s 27:[92]
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.
[92] Evans [31].
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 has been raised by an accused. Miller JA said:[93]
[93] Hone [124] – [125].
Neither a jury nor a judge sitting alone are bound to accept and act upon expert evidence.  But where there is no evidence to contradict that evidence, a verdict cannot be given contrary to it.  The principles were well summed up by Roden J in R v Hall (1988) 36 A Crim R 368, where a number of relevant cases were reviewed. Roden J said (at 370 - 371):
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 R v 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] 1 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 R v 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)
Allen 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)

In Hone, Steytler P referred to other cases where, notwithstanding psychiatric evidence of incapacity, there had been a conviction. However, in such cases there was invariably a basis upon which the psychiatric evidence could be properly discounted. For example, in R v Matusevich & Thompson [1976] VR 470 the presence of a strong and sane motive for the killing and premeditation explained the jury's refusal to act upon uncontradicted psychiatric evidence.
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.  In Hone, Steytler P referred to R v Michaux [1984] 2 Qd R 159; (1984) 13 A Crim R 173, a case involving a medical practitioner who was convicted of offences of administering stupefying drugs and sexually assaulting a number of his patients. Steytler P said:[94]
There was no doubt, in Michaux, that the appellant had suffered from a mental disease at the relevant times.  However, the evidence given by the experts on the question whether his mental state had deprived him of capacity to control his actions, or of capacity to know right from wrong, was equivocal.  Further, on the appeal, the court considered that the jury was entitled to have regard to the appellant's course of conduct in denying the earlier attack and making exculpatory attacks on some of the complainants.  It could treat these as being indicative of a guilty mind and one that was aware that the acts in question were legally and morally wrong.  Connolly J (with whose reasons Campbell CJ and McPherson J agreed) said (at 164; 177 ‑ 178):
The principles which are applicable to a situation such as this are not, I think, in doubt. Where there is unchallenged medical evidence of facts which would bring an accused person within the provisions of s 304A of the Criminal Code and there is no evidence to cast doubt on the medical opinions, a verdict which fails to give effect to those facts will not be supported by the evidence and will be set aside and the lesser verdict substituted:  R v Dick [1966] Qd R 301; R v Matheson [1958] 1 WLR 474; R v Chester [1982] Qd R 252. The same conclusion obviously follows when the facts would bring the accused within s 27: Taylor v The Queen (1978) 22 ALR 599. However, it is otherwise where there is evidence which casts doubt on the medical opinions. Such evidence may go to the factual basis assumed for the purposes of the medical opinions as in R v Wallace [1982] Qd R 265. Again, it may be that the behaviour of the prisoner himself is such as to cast such a doubt. Cf Walton v The Queen [1978] AC 788 at 793. And, of course, the jury is amply entitled to scrutinize the medical evidence itself for qualifications, concessions, and reservations. As their Lordships observed in Walton v The Queen:
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.
[94] Hone [6].
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.[95] In Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659 one of the factors that the prosecution sought to rely upon as revealing that the accused had an awareness of what he had done was wrong was his attendance at a police station immediately after he had killed a woman. That was a case in which a man had stabbed his partner and was found to be a paranoid schizophrenic. In this regard the High Court (Dixon CJ, McTiernan, Fullagar, Menzies & Windeyer JJ) said:[96]
The reasoning upon which the cross‑examination was based was, of course, the kind of reasoning which a sane mind would pursue, while it is apparent from the reading of the transcript of the evidence that the reasoning of the witnesses was based on the belief or assumption which they adopted that the prisoner's mind was not sane and accordingly would be governed by quite different beliefs and perceptions, and a different consciousness and understanding of the things that would be significant to the sane. In cases of this kind it may well happen that expert witnesses accepting the hypothesis that a prisoner is insane are not on the same ground as counsel adopting the opposite hypothesis and argument according to the common sense of ordinary men supplied by the experience of sane persons.
[95] Hone [7].
[96] Mizzi, 633.
In Hone there was no evidence or circumstances that could displace or cast doubt upon the expert evidence given by a psychiatrist as to the lack of mental capacity of the appellant. In the present case, all three of the psychiatrists are in agreement that the accused was suffering from a mental impairment at the time of the killings.

Findings

There can be no doubt that from at least early 2019 the accused was suffering from a serious mental illness, namely major depression. This condition increased in severity during the year and resulted in panic attacks, lethargy, disconnection from family and weight loss. In the months leading up to the killings the illness began to have psychotic features. In particular, the accused formed delusional beliefs regarding her own health and the health of her children and nihilistic beliefs that she was trapped in an inescapable world characterised by cold and bleak nothingness. The beliefs were delusional in the sense that they were fixed, firmly held on inadequate grounds, and unable to be altered by evidence or rational argument to the contrary.
All of the psychiatrists agree that at the time of the killings the accused had progressed to suffering from a severe major depressive disorder with psychotic features. Her delusional guilt and nihilistic beliefs led to thoughts of suicide. Although she saw a psychiatrist and a psychologist, she did not accept that treatment was possible and did not reveal her suicidal thoughts. She had no insight into the delusional nature of her beliefs and continued to firmly hold them. In the days prior to the killings she became more compliant with medication and this resulted in increased energy. However, the suicidal ideation persisted and was now dangerously coupled with increased motivation. She also formed a belief that if she died her children would be stuck in the same interminable and inescapable hell. She believed that it would be inhumane to leave her children behind and that by killing them she would save them from certain doom. In this distorted and irrational mind-set killing her children was, for the accused, an act of love.
All of the psychiatrists are firmly of the view that at the time of the killings the accused lacked the capacity to know that what she was doing was wrong. She may have had some awareness that her acts would be perceived in a different way by others, and this accounts for her concealment and deceit, but from her own perspective she believed that she had to act as she did in order to save herself and her children from a terrible fate.
I accept the opinions of the psychiatrists that at the time of the killings the accused was suffering a major depressive episode with psychotic features and that this deprived her of the capacity to know that she should not do what she did. Not only are all of the psychiatrists in agreement in this regard, all of the collateral evidence supports this conclusion. The psychiatrists all agree that the accused’s suicide attempts were genuine and that there is nothing to indicate that her illness has been feigned or exaggerated.
I am satisfied on the balance of probabilities that at the time she killed her daughters the accused was deprived of the capacity to know that what she was doing was wrong. Indeed, her delusional state of mind led her to firmly believe that what she was doing was both necessary and right. The requirements of s 27 of the Criminal Code have been met. Therefore, the accused is not criminally responsible for her actions on account of unsoundness of mind.
The verdict in respect of each of the two counts must be not guilty on account of unsoundness of mind. Such a verdict requires that there be a custody order pursuant to s 21 of the Criminal Law (Mentally Impaired Accused) Act.[97] The effect of that order is that the accused will be detained in an authorised hospital, a declared place, or a prison until released by an order of the Governor: s 24. Whether and when release occurs is dependent on 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.
[97] Criminal Procedure Act, s 149(1).

Orders

I make the following orders:
1.That on each of counts 1 and 2 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 Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Hall
22 DECEMBER 2021