The State of Western Australia v Evans [No 2] - [2012] WASC 366

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: THE STATE OF WESTERN AUSTRALIA -v- EVANS [No 2] [2012] WASC 366

CORAM: HALL J

HEARD: 25-27 JULY & 18-20 SEPTEMBER 2012

DELIVERED : 9 OCTOBER 2012

FILE NO/S: INS 71 of 2008

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
ANTHONY THOMAS EVANS
Accused

Catchwords:

Criminal law - Trial by judge alone - Murder - Insanity - Whether accused lacked capacity to know what he did was wrong

Legislation:

Criminal Code (WA), s 1, s 26, s 27

Result:

Accused acquitted on grounds of unsoundness of mind
Custody order made

Category: B

Representation:

Counsel:

Prosecution : Mr D Dempster
Accused: Mr S Vandongen SC

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: GV Lawyers

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

Evans v The State of Western Australia [2010] WASCA 34
Evans v The State of Western Australia [2011] WASCA 182
Hone v The State of Western Australia [2007] WASCA 283
Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659
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
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
The State of Western Australia v Evans [2012] WASC 87
Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254

HALL J:

Introduction

The accused stands charged that on 13 November 2007 at Girrawheen he murdered Alana Marie Dakin. He pleaded not guilty to that charge and on 8 March 2012 applied for trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA). That application was granted by Commissioner Sleight: The State of Western Australia v Evans [2012] WASC 87.
The trial proceeded before me between 25 July and 27 July 2012 and between 18 September and 20 September 2012.
The accused has twice stood trial before a judge and jury in relation to this matter. In December 2008 he was acquitted of wilful murder but convicted of murder. On 26 February 2010 the Court of Appeal allowed an appeal against that conviction and a re‑trial was ordered: Evans v The State of Western Australia [2010] WASCA 34. A re‑trial occurred in September 2010, again before a judge and jury. The accused was again convicted of murder. On 5 September 2011 the Court of Appeal allowed an appeal against that conviction and a second re‑trial was ordered: Evans v The State of Western Australia [2011] WASCA 182. I mention that background only to explain why there has been a long delay between the commission of the alleged offence and this trial and because it has had an impact on the manner in which evidence was led at this trial.
The prosecution case consisted very largely of witness statements or the transcript of the oral evidence of witnesses given at the second trial. These were read out by agreement with the defence. This is a reflection of the fact that much of the evidence was not in dispute. A formal admission was also made at the commencement of the trial pursuant to s 32 of the Evidence Act 1906 (WA) that on 13 November 2007 at Girrawheen the accused had caused the death of Ms Dakin.
The only witnesses who were called to give oral evidence at this trial related to the issue of the accused's state of mind at the relevant time. In particular, that evidence related to the question of whether or not the accused was criminally responsible for his actions because he was in such a state of mental impairment as to lack the capacity to know that he ought not to do the act which caused the death of Ms Dakin: s 27 of the Criminal Code (WA). This was the principal issue at the trial.
In the event that the insanity defence under s 27 was not made out there were alternative issues raised by the defence. They were, firstly, that it was submitted that the evidence did not establish beyond reasonable doubt that the accused had an intention to do grievous bodily harm. Alternatively, if he did have such an intention, the defence case was that he acted on sudden provocation and should be found guilty of manslaughter only: s 281 of the Criminal Code (as it stood at the relevant time).
For the reasons that follow I am satisfied that it is more likely than not that the accused was in a psychotic state at the time he caused the death of Ms Dakin. That psychotic state was likely to have been of such a nature and intensity as to deprive the accused of the capacity to know that he ought not to do the act which caused Ms Dakin's death. Accordingly, the accused cannot be considered criminally responsible for his actions and I find him not guilty on grounds of unsoundness of mind.
In these circumstances I am required to make a custody order pursuant to the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 21. The effect of that order is that the accused will be detained until released by an order of the Governor: s 24. Given this conclusion the issues of intent or provocation do not arise.

The prosecution case

In October and November 2007 the accused and Ms Dakin were residing together at a house owned by the accused in Marangaroo Drive, Girrawheen. They had commenced a relationship approximately five months earlier. The relationship was one that was characterised by domestic violence and excessive use of alcohol, particularly on the part of Ms Dakin.
In September and October 2007 Ms Dakin travelled to Canada to visit her extended family. She was away for approximately five weeks. On her return on 23 October 2007 she resumed living with the accused. From the day of her return until Ms Dakin's death three weeks later there were a series of significant incidents involving alcohol‑fuelled violence.
The prosecution case included evidence of a number of incidents that had resulted in the police being called to attend. In particular, there had been a serious incident on 23 October 2007, following which the accused had been interviewed.
On the evening of 12 November 2007 there was another such incident. It occurred at the Marangaroo Drive house. Only the accused and Ms Dakin were present. The end result was that Ms Dakin was cut with a knife and died of her wounds in the early hours of 13 November 2007.
The prosecution evidence consisted of:
(1)witness statements and transcripts from the second trial;
(2)records of interviews with the accused on 23 October 2007 (regarding the earlier incident) and 13 November 2007; and
(3)oral evidence from Dr Adam Brett, a psychiatrist, as to the accused's state of mind.
I will deal with each of those classes of evidence below. Dr Brett's evidence will be considered in the context of the other psychiatric evidence, which was led by the defence.

Evidence of surrounding events (statements and transcripts)

First Class Constable Sarah Turner's evidence related to the earlier incident. She and another officer attended at the accused's home in response to a police communication at 7.45 pm on 23 October 2007. On her arrival other police officers and ambulance officers were already in attendance. Ms Dakin was handcuffed and being spoken to by the other police officers. Constable Turner noted that Ms Dakin had bruising and swelling to the left side of her face. Ms Dakin was intoxicated and uncooperative with the police. She refused to speak to police about what had happened. She was conveyed by ambulance to hospital.
Constable Turner said that she placed the accused under arrest and conveyed him back to Warwick Police Station where he took part in a recorded interview. She said that his demeanour appeared fine and that he was talking properly. She said that he did not appear to be intoxicated and was cooperative. During the interview the accused said that Ms Dakin had come at him with a knife and that he had punched her several times to the side of the face to get her to drop the knife. He said that he had acted in self‑defence.
Constable Turner said that a domestic violence incident report had been prepared but no charges had been laid. The accused's conduct and demeanour during the interview with police on 23 October 2007 was the subject of detailed consideration by psychiatrists called by both the prosecution and defence. I will refer to that evidence in more detail later in these reasons.
Constable Turner said that the police had issued Ms Dakin with a police order requiring her to stay away from the Marangaroo Drive address and away from the accused for 24 hours. Constable Turner said that there was a subsequent callout which she attended on either the 29 or 30 October 2007. No‑one was found at the Marangaroo Drive house on that occasion and the accused was subsequently located in Warwick and the matter was dealt with by another police officer.
In cross‑examination Constable Turner agreed that on 23 October 2007 Ms Dakin had been clearly intoxicated and aggressive and that the accused had been cooperative and polite. She accepted that it was possible that the accused had called the police on that occasion.
A further incident occurred on 27 October 2007. The evidence of Anna Merino, formerly a Senior Constable of police, was that on that day she had attended with another police officer at the Marangaroo Drive address. This was as a result of a call made by the accused. On arrival the police knocked on the door but were unable to obtain entry. Senior Constable Merino telephoned the accused, who was not at the premises, and he told the police that Ms Dakin was in the house and that he may have injured her because he had had to knock a knife out of her hand. The accused agreed to return to the house to let the police in. On entry the police officers found Ms Dakin asleep on the floor. One of her hands was swollen but she appeared to be otherwise uninjured. The police were unable to arouse Ms Dakin. An ambulance was called and she was taken to hospital. It was subsequently determined that she had a broken wrist.
Ms Merino said that she asked the accused what had occurred. He said that Ms Dakin had been drinking a lot that day and that they had been arguing. He said that she had pulled two kitchen knives on him and that he had had to use a stick to hit a knife out of her hand. He said he had only hit her hand with a pole to stop her attacking him with the knife. He said: 'Look charge me. I don't care. I just want her to get some help because I've tried to get mental health but they won't do anything' (ts 1820).
Ms Merino subsequently spoke to Ms Dakin in hospital, but she declined to make a complaint. The accused was not formally interviewed about this incident and no charges were laid.
Ms Merino said that on 2 November 2007 she was on duty at the Warwick Police Station when the accused and his father attended. She said that the accused's father raised concerns about Ms Dakin contacting the accused without his permission and asked for advice. Ms Merino told them that the best thing to do was for the accused to stay with his parents for that weekend. She suggested that the accused should go to court on the following Monday morning and get a violence restraining order. The accused agreed to do that.
In cross‑examination Ms Merino agreed that when the accused was contacted by her on 27 October 2007 he said that had he fled the house and left Ms Dakin inside as she was intoxicated and had pulled a knife on him in the kitchen. After returning to the house at the request of the police he told them that Ms Dakin was still inside and that she could have tried to hurt herself or tried to commit suicide and that they needed to get help for her. He said that Ms Dakin really needed help as she had been raped by four men some time ago and that that was why she was the way she was.
Sergeant Heather Osborne's evidence was that in November 2007 she was the Family Protection Coordinator for the North‑West Metropolitan Police District. In that capacity it was her job to review incidents of domestic violence that had required police attendance. On 29 October 2007 she spoke to the accused on the telephone. He had been happy to speak to her and said that they did need assistance. Sergeant Osborne explained the availability of counselling and outreach services. The accused was receptive to the suggestion. However, he said that he wanted to remain in the relationship and would not cooperate with police in pursuing any charges. There was a discussion regarding safety planning and the accused said that it sounded like something that would be valuable for him and he was happy to discuss it.
Sergeant Osborne also spoke to Ms Dakin and told her that, based on the information available, if Ms Dakin pulled a knife on the accused she could be charged with an offence. Sergeant Osborne told Ms Dakin about the need for help within a domestic violence situation and suggested the name of an outreach centre and women's refuge that may be of assistance to her.
On 30 October 2007 Sergeant Osborne saw the accused outside the Joondalup Courthouse. She asked him if he was there to get a restraining order and he replied that he was and that there had been further problems. Sergeant Osborne said that she hoped it all worked out for them and went on her way.
Jane Maton's evidence was that she had been the best friend of Ms Dakin and had known her for at least three years prior to her death. At the time they first met Ms Dakin was a recovering alcoholic. Ms Dakin continued to be sober until the last few months of her life. Her relapse into alcoholism had been triggered by a sexual assault which had occurred prior to her meeting the accused.
Ms Maton said that when she first met the accused he had told her how much he loved Ms Dakin. She would occasionally see them together but kept very much to herself. When she did see Ms Dakin she noted that she was continuing to drink alcohol; often beer, sometimes mixed drinks or vodka.
Sometime shortly after Ms Dakin returned from her holiday in Canada she contacted Ms Maton by text. Following this, police contacted Ms Maton and asked if Ms Dakin could come to stay with her. She was dropped off in the early morning of 30 October 2007. Ms Maton said that she noticed bruising to Ms Dakin's face, her arm was bandaged and she had blood matted in her hair. Ms Maton took Ms Dakin to hospital the following day where she received some stitches to her head and was advised that she would need plastic surgery to her hand. Ms Dakin stayed with Ms Maton for just under a week on this occasion.
Sergeant Charles Ruck's evidence was that he was on parole duties with another police officer in the early hours of the morning of 30 October 2007. They responded to a police call to attend the Marangaroo Drive address just after midnight. After finding no‑one at home, and speaking to Ms Maton, Sergeant Ruck made telephone contact with the accused. It was determined that the accused and Ms Dakin were at the accused's parents' house in Warwick. The accused returned to the Marangaroo Drive house at police request. He told the police that Ms Dakin had been drinking heavily and that they had decided to go to his parents' house to 'sort it out'. As they were driving Ms Dakin had tried to pull the steering wheel from the accused's hands and he was forced to push her away on several occasions.
Sergeant Ruck said that he gave the accused advice regarding how to obtain a violence restraint order. He also advised that the relationship was never going to be a positive one and that they should separate and not see each other again. The accused agreed that he would take out a violence restraining order.
The police then attended at the accused's parents' house in Warwick. They spoke to Ms Dakin briefly. She was described as being extremely abusive. Sergeant Ruck noted that Ms Dakin had a cast on her arm and bruising to her face, both of which appeared to be old injuries. He said that she was extremely intoxicated and was screaming for vodka. The police came to the conclusion that Ms Dakin needed to be removed from the house and she was served with a police order requiring her to stay away from the accused's parents' house for 72 hours. The police endeavoured to obtain emergency accommodation for Ms Dakin but were unsuccessful. They then contacted Ms Maton, who agreed to take her in.
Sergeant Ruck said that he found the accused to be quite personable. He understood what Sergeant Ruck was saying and understood that the relationship was at crisis point.
In cross‑examination Sergeant Ruck said that Ms Dakin had been extremely abusive initially. He said that this included calling the police names and demanding alcohol. He said that she was irrational. He said that when she was placed in the back of the police vehicle she had spat on Sergeant Ruck when he attempted to take her bag from her.
Deanna Caverley was a former police officer who had also been on duty on 30 October 2007. She had attended at the accused's parents' house with Sergeant Ruck. She described the accused as being calm and very cooperative. The accused's parents had said that they wanted Ms Dakin removed from their house.
When Ms Caverley spoke to Ms Dakin inside the house she described her demeanour as being highly intoxicated, abusive, swearing and not making much sense. Ms Caverley noticed an old cast on Ms Dakin's left arm and bruises to her face. Ms Dakin was asked to accompany the police but she refused. Attempts were made to persuade her, but eventually the police had to forcibly remove her from the property.
Ms Caverley confirmed that Ms Dakin spat on Sergeant Ruck when she was placed into the police van. A 72 hour police order was issued to Ms Dakin due to her anti‑social and aggressive behaviour.
Alana Joyce Stack gave evidence that in late 2007 she was working as a family violence worker at the Joondalup Family Violence Court. She said that on 30 October 2007 she had contact with the accused when he attended at the court to apply for a violence restraining order. He said that he was seeking the order against Ms Dakin and that there had been ongoing verbal and physical abuse between them. He said that there had been an incident the previous night in which Ms Dakin had been intoxicated and verbally abusing him. He said that after she left the premises he discovered that his keycard was missing from his wallet and that he had gone looking for her. He found Ms Dakin at an ATM withdrawing money. He said that he had then driven Ms Dakin to the Warwick Police Station. On the way she had hit him, pulled his hair and pulled on the handbrake of the car. He said he had defended himself by striking back at her. He told Ms Stack that there had been other incidents in which Ms Dakin had pulled knives on him and threatened to stab him. He told her that the police had issued a 72 hour police order against Ms Dakin due to her behaviour the previous night. He said that he could not go on with the relationship but he did not feel strong enough to end it and that was why he had come to get a restraining order.
Ms Stack made attempts to have the application for a restraining order listed that day but was unsuccessful. A later date was obtained of 5 November 2007. Ms Stack discussed the accused's safety with him and gave him the telephone numbers of counselling services. She suggested that he remove himself from the situation and not to go back to the house. He said he could go to stay at his parents' house.
On 2 November 2007 Ms Stack had a telephone conversation with the accused. He wanted to talk about the VRO process and about his situation. He again stated that he did not feel 'strong enough about the situation' (ts 1844). The accused left a telephone message on Ms Stack's answering machine later that day saying that he would come in to get the restraining order on the following Monday, being 5 November 2007. He did not do so.

Ms Stack described the accused's demeanour as stressed, anxious, confused and upset. Ms Stack had some experience in dealing with people with mental illness. She said that, like many of the people that she dealt with at that time, the accused was highly agitated and anxious but she could not say whether that was the result of a mental illness or not.
The statement of Senior Constable Lawrence Ware was read into evidence. Senior Constable Ware was attached to the North‑West Metropolitan Domestic Violence Unit in November 2007. On Friday, 2 November 2007 he received a telephone call from the accused. The accused said that he wanted some advice in the event that his partner attended at his house over the weekend. Senior Constable Ware gave the accused advice regarding the operation of police orders, violence restraining orders and the contact numbers for police attendance if required. At the end of the conversation the accused said that he would more than likely stay at his parents' house for the weekend.
Senior Constable Garry Grimshaw gave evidence that he was on duty on Sunday, 11 November 2007. At 7.20 pm he attended at the Marangaroo Drive address in company with another police officer. On arrival the accused, his mother and Ms Dakin were in attendance.
Constable Grimshaw said that Ms Dakin appeared quite upset and agitated. She had a cast on one arm and injuries to her face. He said that Ms Dakin was very intoxicated. Constable Grimshaw spoke to Ms Dakin at the front of the house before speaking to the accused.
The accused was at the back of the house and appeared to Constable Grimshaw to be quite calm. His mother produced a power of attorney that related to the premises and asked that Ms Dakin be removed. The police were satisfied that Mrs Evans had legal authority for the request and decided to issue Ms Dakin with a 24 hour police order. The police then drove Ms Dakin to a clinic in Subiaco and a refuge in Nollamara in an attempt to obtain short term accommodation for her. This proved unsuccessful and Crisis Care then secured short term accommodation for her at a hotel.
The statement of Dennis Ng Fook was read into evidence. He stated that he was the owner of the Astra Lodge Motel in Albany Highway, Cannington. He said that on 11 November 2007 Ms Dakin came to stay at his hotel. That was as a result of a referral from Crisis Care. Crisis Care faxed a financial assistance voucher number to the hotel to cover a one night stay. There was a stipulation of no phone and no mini bar.
A statement of Miso Milankovic was also read into evidence. Mr Milankovic was a taxi driver who was called to an emergency job through Crisis Care on 12 November 2007. He collected Ms Dakin from the Astra Lodge in Beckenham at 10.25 am. He recalled that the woman he collected had something on her left arm which made him think that it was broken. She had a small suitcase which he placed into the boot of his taxi.
As they were driving, Ms Dakin asked Mr Milankovic to stop at a bottle shop. She said that she wanted to buy cigarettes. He pulled into a bottle shop and she went in and returned after about five minutes. He then took her to her destination.
The statement of Kirsty Lee Rowles was read into evidence. Ms Rowles was the assistant manager of the bottle shop that Ms Dakin attended on 12 November 2007. Ms Dakin purchased a bottle of sparkling wine. Ms Rowles noticed that Ms Dakin had aging bruising and cuts on her face. She also had a cast on her left arm.
Donna Lee Tancabel was a support worker at a women's refuge in November 2007. She gave evidence that she arrived at work at 1.30 pm on 12 November 2007. On arrival she met Ms Dakin. This occurred in the context of a medication handover process. Clients who stay at the refuge are asked to hand over their medication on arrival which is then dispensed on request. In the case of Ms Dakin there was a substantial amount of medication, possibly eight to ten packets. A note of the medications was made at the time and they included Efexor, Resperda and Seroquel. Following this process, Ms Dakin was assigned a bed at the refuge.
Ms Tancabel saw Ms Dakin again at 4.00 pm in order to complete the intake process. At this time Ms Tancabel noticed that Ms Dakin appeared to be in quite a lot of physical discomfort. She was slurring her words and Ms Tancabel noted that her breath smelt of alcohol. The refuge is classified as a dry house and the conditions are that clients can be asked to leave if they break the rules by consuming any drugs or alcohol. The rules were explained to Ms Dakin and it was noted that she was uncomfortable in discussing the issue of alcohol.
At the 4.00 pm meeting Ms Dakin was asked by Ms Tancabel whether she had consumed alcohol. She denied it and it was felt that there was nothing more that could be done at that stage. Later that evening, at 6.00 pm, Ms Dakin approached Ms Tancabel and said that she had consumed a bottle of alcohol. She was advised that she had broken the house rules and that the usual procedure was to discharge clients in those circumstances. The bottle of alcohol was located and found to be empty. Ms Dakin was advised that an attempt would be made to find alternative accommodation for her but she did not give her consent to that process. Ms Dakin said she had made contact with a friend and that she was to be picked up by that person. She then packed up her belongings and left at 6.30 pm.
Rhiannon Roberts was a bartender working at Greenwood Tavern in November 2007. On the evening of 12 November 2007 she was working at the drive‑thru bottle shop at the tavern. At around 10.00 pm, just before closing time, the accused and Ms Dakin drove into the bottle shop. The accused was driving. Ms Roberts noted that Ms Dakin had a broken left arm. She had a cast on that arm. The accused and Ms Dakin had a discussion about a particular wine that they wished to purchase. They could not remember the name and Ms Roberts suggested that they come and have a look inside to see if they recognised the label. Ms Dakin came inside and the accused stayed in the car.
Ms Roberts said that Ms Dakin seemed to be a little bit unsteady but was definitely not intoxicated. Ms Dakin could not find the wine that she was looking for but saw one that she had drunk before and bought two bottles. The bottles purchased were of a pink sparkling wine. Ms Roberts noted that when Ms Dakin put the money on the counter her hands we shaking. The video footage from the bottle shop was produced and played in evidence.
Senior Constable Mark Biffen's evidence was that he was stationed at Warwick Police Station in November 2007. He was on duty in the early morning of Tuesday, 13 November 2007. He and another officer responded to a call to attend at the Marangaroo Drive address. They arrived at approximately 2.55 am.
On arrival Senior Constable Biffen saw that an ambulance was already in attendance. He was told by one of the ambulance officers that Ms Dakin was deceased and he confirmed this. Her body was on the floor in the house in a pool of blood. He then made arrangements to secure the area for the purposes of forensic examination.
Susan Versace was a neighbour of the accused. She had had only one conversation with the accused and had never spoken to Ms Dakin, although she had seen her and believed she was living at the house.
Ms Versace said that at about 7.15 pm on the night before the incident she had heard loud banging noises coming from the back of the accused's house. She said it was so loud that she and her husband had turned the volume of their television up. The noises had continued but had 'eased off' by the time they went to bed at 9.30 to 9.45 pm.
The statement of Gregory Douglas was read into evidence. In November 2007 Mr Douglas was staying at a house which is to the rear of the accused's house. Mr Douglas said that at about 8.30 pm on Monday, 12 November 2007 he heard noises coming from the back of the accused's house. He got up and looked into the backyard and could see that there was a fire burning. He could hear a male 'talking really fast' (ts 1898). The man did not appear to be angry and was walking back and forth from the fire to the house.
Mr Douglas went back to bed but could still hear things being thrown onto the fire. He went to sleep and awoke again at 2.00 am. He went to the backyard and could smell smoke coming from the accused's property. He said that all the lights at the accused's house were still on in the rear yard.
The statement of Peter Douglas was read into evidence. Peter Douglas is the son of Gregory Douglas. Peter Douglas said that at about 9.00 pm on the evening of 12 November 2007 he heard the sound of someone chopping wood in the accused's backyard. He said that he could see fire and smoke and could hear voices, both male and female. The female voice was asking 'How was your day?' and how big the fire was going to get. It seemed to be 'an every day conversation' (ts 1899).
A bit later Peter Douglas heard the male voice 'just mumbling and talking to himself' (ts 1899). Peter Douglas went to bed at about 10.30 pm but said that after about 11.30 pm he could hear someone walking in and out of the rear door of the accused's house.
A statement from Rose Dakin was read into evidence. She is the mother of Alana Dakin. Rose Dakin confirmed that her daughter had problems with alcohol. She said that she would call her an alcoholic. She also had problems with prescription medications, including valium. She said that when Alana was sober she was really a lovely person; she had a bubbly personality and was very friendly to everybody.
Rose Dakin said that Alana introduced her to the accused in April 2007. At that time Rose was living in Broome and had come to visit her daughter. She said that in the beginning the accused seemed to be taking care of Alana in regard to the alcohol and prescription drug use.
Rose Dakin said that in the months prior to her death, Alana 'was not doing too well with her alcohol and pills' (ts 1901). On Monday, 12 November 2007 Alana had telephoned her mother at about 7.00 pm. She said that Alana said that she was at home with the accused. She could tell from the sound of her daughter's voice that she was under the influence of something. They had an argument and Alana swore at her mother and hung up.
A statement from Marius Dakin was also read into evidence. Mr Dakin is married to Rose Dakin and is the step‑father of Alana. He said that just after midnight on the morning of 13 November 2007 he received a telephone call from Alana. He said the conversation lasted about three or four minutes and she seemed to him to be 'a little lost soul' (ts 1902). She sounded relaxed but made a reference to the argument that she had earlier had with her mother.
Rodney Evans is the father of the accused. His evidence was that the accused had met Ms Dakin in April 2007 and then commenced a relationship with her. For most of that time they lived together at the Marangaroo Drive address.
Mr Evans said that Ms Dakin went on an extended holiday to Canada for about two months and returned about three weeks before she died. He said that in the three week period before her death he was aware that the relationship was a very troubled one. There had been troubles in the past but this period was 'very acute' (ts 1903). He was aware of a number of violent incidents in that period which he understood had been initiated by Ms Dakin. Some of those incidents had led to Ms Dakin and the accused ending up at his house. The police became involved and police orders were issued against Ms Dakin. He agreed that on these occasions Ms Dakin was often very drunk. He agreed that when drunk she could be intimidating or violent.
Three days before Ms Dakin's death the accused was staying at his parents' house. Ms Dakin arrived and began banging on the door. The accused was asleep in bed at this time. Mr Evans went out to speak to Ms Dakin and said that she was intoxicated and aggressive. He told her that he would call the police. She then threw pot plants at the house and smashed them. She claimed that the accused wanted to see her. She then got into a waiting taxi and left.
The morning after the incident just described, Mr Evans dropped his son back at the Marangaroo Drive house. He saw his son again on 12 November 2007. On that day Mr Evans called at the accused's house to pick up some paperwork. Whilst there he spoke to his son and noted that he was 'stressed, confused, wondering what he should be doing in general'. This included a concern regarding Ms Dakin's behaviour. The accused was confused about whether the relationship was continuing. Ms Dakin was continuing to contact him by telephone; on one hand he did not want that but on the other hand he felt he could not put her out on the street. Mr Evans wanted his son to come with him but the accused refused as he was trying to clean up the house.
In the early hours of the morning of 13 November 2007 Mr Evans was asleep when the accused knocked on his door. The accused was distressed, upset and 'sort of muttering different things'. The accused 'wasn't making a lot of sense at the time' (ts 1906) and said that he thought Ms Dakin was dead. Mr Evans said that the accused was crying. Mr Evans agreed with his wife that he would stay with the accused and she would go to the Marangaroo Drive house. The accused asked to speak to his brother Wayne who sat at the table and talked to him. The police arrived shortly after and arrested the accused.
In cross‑examination Mr Evans agreed that his son had given Mrs Evans a power of attorney on 11 November 2007. He said this had occurred because on that day the accused had arrived at their house and said, 'Look, I can't cope with this any more. Can you guys help me' and 'I haven't kind of got the courage, or whatever you want to call it, to evict her'. Mr Evans said that the idea was that Mrs Evans would be able to 'call the shots' and that they would try to get something done (ts 1909).
Mr Evans said in cross‑examination that when he arrived at their house on the morning of 13 November 2007 he said 'I think Alana's dead' but was then sort of muttering to himself and not speaking clearly. It seemed to Mr Evans that his son was not thinking clearly (ts 1909).
Mr Evans was asked to describe earlier occasions when the accused may have said or done things which were strange. He said that they went through a period where the accused claimed he was in touch with the spirit world and getting messages from the television. He said the accused would talk about a third eye and believed he had contact with a greater world. As a result of this Mr Evans had caused the accused to be admitted to a psychiatric institution in around July or August 1999. The accused had responded to this by saying that he felt betrayed and that he was not happy with his father.
The statement of Roberto Perrozzi was read into evidence. Mr Perrozzi is a paramedic who attended at the Marangaroo Drive address in the early hours of the morning on 13 November 2007. When he and his partner arrived at the address Mrs Evans was already in attendance and told him that she could not find a pulse. He found Ms Dakin's body on the floor in the lounge room in a large pool of blood. She was leaning slightly to the right and her right arm was resting over her chest. He noted that there was a large injury to her throat or neck. He confirmed that she was deceased. Rigor mortis was present.
Mr Perrozzi noticed that there was a towel or something similar over Ms Dakin's right shoulder as if someone had been attempting to stem the bleeding. He noticed that there was a knife on the floor just outside the pool of blood. It was a medium sized knife with a white handle.
Sergeant Bradley Cutler's evidence was that he attended at the accused's parents' house in the early morning of 13 November 2007. On attendance he was met by the accused's father who led him to the dining room. The accused identified himself when asked and was then cautioned. When asked whether he understood the caution he said 'Yes. But I'm not emotionally responsible for what I've done'. Mr Evans was then handcuffed and walked to the police vehicle. He was very compliant (ts 1914).
Sergeant Cutler described the accused's demeanour as 'very flat' and 'quite withdrawn'. As he was stepping into the back of the police van the accused said, 'I've just killed the woman I love'. Sergeant Cutler was asked the manner in which this was said and said that it was again very flat and said in a way that 'the realisation of what happened was starting to sink in as he was getting into the back of the van'. Sergeant Cutler thought that the accused was probably close to tears but he did not cry. The handcuffs were later removed for the accused's comfort and because he was not causing any trouble (ts 1915).
First Constable Ralph Sales also attended the accused's parents' house on the morning of 13 November 2007. He said that he had cautioned the accused and that the accused had agreed that he understood but said nothing more. Constable Sales said that when the accused was placed into the back of the police vehicle he asked the accused how he was and the response was, 'How do you think I feel, I've just killed the woman I love'. Constable Sales said that this was said quietly and that the accused was quiet and cooperative (ts 1920).
A statement of Senior Constable Graham Byass was read into evidence. Senior Constable Byass was with the Forensic Crime Scene Unit and described attending at the Marangaroo Drive premises and collecting a number of items for forensic testing.
Detective Senior Constable Richard Bowers conducted a video record of interview with the accused on the morning of 13 November 2007. Prior to commencing the interview he confirmed that the accused was willing and fit to be interviewed. He did not appear to be intoxicated or overly tired. When asked whether he was willing to participate the accused said, 'Yes, that's fine. If you want to do that do it. I would request you do it sooner rather than later. That way you'll get the best out of me' (ts 1673).
The record of interview was tendered and played at the trial. It is of particular significance not only because the accused gives an account of what occurred on the evening of 12 November 2007 but because it is a record of his demeanour at that time. Each of the psychiatrists who has given evidence at this trial has had the opportunity to review that record of interview and have taken it into account in reaching their conclusions regarding the accused's state of mind. I will refer to the interview in detail later in these reasons.
In cross‑examination Detective Bowers confirmed that the purpose of the interview was to advance the police investigation and not for any psychiatric purpose. He also confirmed that he had no training in psychiatry. When asked about the way in which the accused had answered questions, Detective Bowers said, 'I wouldn't say rambling conversationalist but it was an investigative interview and I did want to focus on particular points and, at stages, it was difficult to keep the accused on track'. He agreed that the accused had a blunted emotional expression throughout, regardless of what topic was being discussed (ts 1696).
Detective Bowers said that despite some odd references in the course of the interview it did not occur to him that the accused might need some sort of psychiatric help. However, he said that he had not met the accused previously and only formed an appreciation of him in the course of the interview. He said that this did later cause him to have some concerns and that he raised his concerns when he lodged the accused at the police lockup following the interview. He said that his particular concern was that the accused may self‑harm.

Dr Clive Cook is the Chief Forensic Pathologist. He gave evidence that the cause of death was a penetrative wound to the neck. He said that this wound had penetrated into the left side of the neck causing partial avulsion of the jugular vein. He said that there also appeared to be other wounds in the right upper chest region and in the right arm. The wound to the right arm transected veins and caused damage to underlying muscles and tendons. He agreed that a knife found at the scene was consistent with being the cause of the injuries.
The prosecution tendered in evidence recordings of the interviews with the accused on 23 October 2007 and 13 November 2007. The particular relevance of the earlier interview was that it was suggested that the accused's demeanour in that interview was noticeably different from his presentation on 13 November 2007. If this was accepted it raised a question of whether there had been any deterioration of the accused's mental health between those two dates. It is necessary to consider the two interviews in detail.

The 23 October 2007 interview

This interview commenced at 10.30 pm. It is noticeable from the commencement that the accused is alert and attentive to the questions. He makes appropriate eye contact and appears to be more animated in his facial expressions than at the later interview. Indeed, in my view, the difference in demeanour is clear and marked.
After initial preliminaries and the caution the accused was asked to explain in his own words what happened leading up to him calling the police to attend at his home. He said that he had been working in the morning that day knowing that Ms Dakin would be arriving at the airport at 1.55 pm. She was returning to Australia after being away for five weeks. He referred to them having met in April and having been since engaged and in a committed relationship. He said that in the past they had had 'our fair share of issues' but that when he picked her up it was 'quite good, happy' and they proceeded to go home (VROI ts, 23.10.07, page 4).
The accused said that it had 'been noted' that Ms Dakin had issues with alcohol but his personal opinion was that her problems were more to do with a spiritual attitude or an understanding of how to control situations. He said that on the way home he bought alcohol 'as part of my way of saying well, yeah, we can drink alcohol and try to teach her that you can drink and control yourself' (VROI ts, 23.10.07, pages 4 ‑ 5).
The accused said that later they had an altercation when Ms Dakin became jealous and that she grabbed a knife that she had brought back from Canada and held it 'at me to express her emotions'. He said he felt fear that 'she may actually seriously harm me'. He said that the experience was quite confusing and it would take him sometime to try and understand his feelings. He said that he then decided to defend himself using a doona and a pillow. He said that in considering what he should do he thought about taking the knife off her or getting into a situation where he could get out. He said he was concerned that if she stayed with the knife she may hurt herself. He then decided that what he had to do was get the knife off her (VROI ts, 23.10.07, page 5).
The accused said that Ms Dakin had spent time in Canada with her native American family and this had given her the ability to know how to use a knife. He said because of that he knew that he was in a situation that was life threatening. He said that he then chose to give her a punch to the side of the face opposite the knife. His purpose was to distract her from the knife. He said that he hit her possibly three or four more times. He had then thrown a rug on top of the knife and had managed to get it off her and throw it behind him. He said that she tried to grab it with her left hand and that this could have caused a cut to that hand.
The accused said he had mixed emotions about hitting Ms Dakin and described himself both as a coward and a hero. He said he was not claiming 'righteousness' but did feel that his actions were basically controlled. He said he then told her that the police needed to be called. He said he was struggling physically with her at this time and rolled her onto her stomach and held her hands behind her back whilst he used a free hand to call the police on the telephone. He said that he continued to restrain her because the knife was somewhere behind him (VROI ts, 23.10.07, page 6).
The accused was asked where the knife had come from and he said that Ms Dakin had brought it back from Canada. It was a gift from her uncle to him. He said that the knife had been used earlier in a ritual where she had cut her thumb and his. He said that they had done this once before 'in a silly way to share each other's love and blood' (VROI ts, 23.10.07, page 9).
The accused was asked why he had been concerned about 'her emotions with the knife'. He said that since the day he had met her he had been subject to up and down emotions with Ms Dakin. He gave a brief account of her past history, which included the suicide of her biological father and being sexually assaulted on several occasions. He agreed that their relationship had been an emotional rollercoaster and said that he had become weary at times when she was going on about things and he got quite emotional back. He then said, apparently self‑consciously, 'I'm sort of babbling on' (VROI ts, 23.10.07, page 11).
The accused was asked how Ms Dakin had held the knife and he referred to it as being like a person going to skin an animal. He then referred to quadrants and to Ms Dakin following his every move and having him lined up. He then demonstrated what he meant and one of the police officers said that he understood. He said that Ms Dakin was making indications with the knife for him to step back. He said that it was at this point that he started to adopt a self‑defence strategy. He agreed that he had then made a decision to make a psychical assault upon her to get the knife away from her. He went on to describe how he had hit her to the face whilst he was standing on the bed. He said that Ms Dakin was standing on the floor next to the bed and he had the rug and pillow. He said that after hitting her four or five times he threw the rug on her and then jumped to the floor. He said that he came up underneath, took the knife off her and restrained her on the ground whilst he made the telephone calls. He said that he continued to restrain her until the police arrived (VROI ts, 23.10.07, pages 11 ‑ 14).
About a third of the way through the interview the second police officer took over the questioning. She was more direct and aggressive in her questioning style. On occasions she interrupted and talked over the accused. It is noticeable that he continues to remain engaged and responsive to the questioning. He does not appear to loose his concentration or train of thought. His account of what occurred remains rational and coherent.
The female police officer stated that she did not understand what the accused meant by his reference to quadrants and he responded by saying:
Well quadrant is if - where the centre of the body is, if you draw a cross, that's the quadrant of the body so if she's got it aimed at the centre of my quadrant so that's no matter where she wants to stab me in the lower right quadrant, the lower left, the upper right, the upper left, she's going to get it (VROI ts, 23.10.07, page 23).
When asked about the nature of the punches and how many times he punched her, the accused said:
Two times accurately and then cos they were quite chunky punches and then the third time was, ah, a concerned punch and then I look at the knife and the next time was another tap to make sure. I threw the rug on and then come after the knife (VROI ts, 23.10.07, page 31).
Towards the end of the questioning the accused was asked whether he could not simply have grabbed Ms Dakin's arm. He said this was 'absolutely not' an option because she knew what she was doing. He then again referred to her experience of hunting and being able to quarter and dissect an animal.
At the conclusion of the interview the accused says that he is 'emotionally a mess inside about this whole situation and, um, I'm really a bit lost as to what to do' (VROI ts, 23.10.07, page 49).
A comparison of the transcript of this interview with the transcript of the later one does not adequately convey the difference in demeanour. There are some digressions in this interview but they are not inconsequential and, on some occasions, are encouraged by the questioners. There are some oddly formal verbal mannerisms such as the use of the word 'elected' when the accused is describing decisions that he made. There are also some references to spirituality, in particular to the blood sharing ritual. However, this ritual is something that he ascribes to Ms Dakin's beliefs rather than his own and says that he thought it was 'a little bit over board' (VROI ts, 23.10.07, page 10). There are also references by the accused to he and Ms Dakin being together spiritually and having a spiritual commitment in their relationship, but those references are in the context of responsive answers to questions.

The 13 November 2007 interview

From the outset of this interview it is noticeable that the accused is much less expressive. He is generally unemotional and blunted in both appearance and tone.
At the commencement of the interview the caution is administered. The accused is then asked to repeat the warning in his own words. He said:
A. Um, well I can make a statement for myself that will cover that. Um, ah, I'm in severe shock, um, trauma and, ah, I, um, have nothing to deny or, ah, I wanna speak the truth but as for understanding what I've been through I'm ‑ I'm ‑ I am gonna need some, if its available, some sort of medical guidance and counselling---
Q. Certainly.
A. ‑ ‑ ‑ to explain ‑ ‑ ‑
Q. Yep.
A. ‑ ‑ ‑what I've been through.
Q. Okay.
A. I don't understand myself what ‑ why ‑ I understand but I'm very spiritual and ‑ ‑ ‑
Q. Yeah.
A. ‑ ‑ ‑ this is a new experience for me ‑ ‑ ‑ (VROI ts, 13.11.07, page 4).
There continued to be references to spirits and spirituality throughout the interview, often in a manner that is non‑responsive to the questions. For example, he is asked whether he is tired and fit to continue (bearing in mind that this interview commences at 5.30 am on the morning of 13 November 2007). He said:
A. Well I feel like sleeping and in a ‑ in a ‑ in a spiritual kind of way I don't feel like ‑ ‑ ‑
Q. All right.
A. ‑ ‑ ‑I'm ‑ I'm ‑ I'm in the spirit world and, ah, I don't ‑ I don't classify that as a mental illness. I'm a very spiritual person (VROI ts, 13.11.07, page 7).
The accused makes frequent references to being in shock and needing medical assistance to try and understand what has happened. For example, he said:
[T]here's a briefing to some of her colourful history and the episode tonight is, ah, um, in - in a way that, ah, basically I killed her ... I will need medical assistance on trying to understand that. Um, I'm in a lot of shock as to, ah, not being able to deal with her not being here (VROI ts, 13.11.07, page 10).
When asked whether his state of shock prevents him from talking to the police the accused says:
Yeah, I can - I - I'm not - I'm completely happy to speak ... but to understand I guess, um, some of it (indistinct) I am of sound mind to say that I killed her. ... Um, but it wasn't prior planned. Ah, I never wanted to kill her. I wish I hadn't killed her. Um, it's not even a case of remorse because I'm in love with her so, ah, it's more I guess maybe it is remorse, I'm not sure, but ... (VROI ts, 13.11.07, page 10).
Later in the interview he also says:
A. In order to go into more about understanding why I've done this ‑ ‑ ‑
Q. Mm hmm.
A. ‑ ‑ ‑ I'm really gonna need some medical help.
Q. Yep, okay.
A. Um, I don't know what type of medical person. There's so many different types ‑ ‑ ‑
…
A. I really need to find out the kind of person, ah, look, if you want ‑ if you have a specific person and you wanna find your ‑ ‑ ‑
Q. Mm.
A. ‑ ‑ ‑ side of the story ‑ ‑ ‑
Q. Mm hmm.
A. ‑ ‑ ‑ then that's what you'll get but if I ‑ ‑ ‑
Q. All right.
A. ‑ ‑ ‑ can find someone within the ‑ within the realms of reality that can help ‑ ‑ ‑
Q. Yeah.
A. ‑ ‑ ‑ through what I believe in and what see that can explain ‑ ‑ ‑
Q. All right.
A. ‑ ‑ ‑ for me on my behalf (VROI ts, 13.11.07, page 48).
The accused gives some background of his relationship with Ms Dakin. He states that they were engaged to be married and that she was the first and only person he would ever be in love with. He stated his love for Ms Dakin regularly through the interview (VROI ts, 13.11.07, pages 9 ‑ 11, 15, 19, 20, 28 and 33). He said that Ms Dakin was an alcoholic but he also believed that she suffered from post‑traumatic stress as a result of being the victim of sexual assaults. He described her as being a very angry girl who would get physically violent (VROI ts, 13.11.07, pages 20 ‑ 21).
When asked how he was feeling the accused said that he had taken an anti‑anxiety tablet the previous day. He said:
I ‑ I've been suffering some bad anxiety, um, being with Alana with the rape side of things ‑ ‑ ‑ and, ah, I had a lot of, ah, anger towards the people that have hurt her, falling in love with her and ‑ ‑ ‑ and had a lot of bad thoughts and went to a doctor about it so that I feel like bringing these guys to justice and killing them and all that sort of thing - - - I didn't wanna feel like that and, ah, he suggested that I just have these tablets and it's just anxiety (VROI ts, 13.11.07, page 13).
The accused gave an account of how he had come to pick Ms Dakin up from a refuge the previous night. He said that she had telephoned him from the refuge in contravention of a police order (VROI ts, 13.11.07, page 15). He said to her:
A. ‑ ‑ ‑ I said, 'Look you're not supposed to be ‑ be calling here', and 'Oh, I love you,' and I said, 'Well I love you too but this can't go on. This is ‑ ‑ ‑
Q. Yep.
A. ‑ ‑ ‑ you know, this is ‑ this is ridiculous. I ‑ I do love you but you need to get help and you ‑ when you get help you know I'll ‑ I'll stay your fiancé and when you get help and come back to ‑ you can come back to me when you get help then hopefully things will work out (VROI ts, 13.11.07, page 15).
The accused said that he had driven to the refuge and collected Ms Dakin. He had suggested to her that they did not drink from thereon (VROI ts, 13.11.07, page 23) and she had said, 'That's fine but not today. Tomorrow'. He had accepted this but said that they should get some food so they were not drinking on an empty stomach. He tried to pretend that he had forgotten to go to the bottle shop but she reminded him (VROI ts, 13.11.07, page 25). The accused went to order some takeaway food and left Ms Dakin in the car telling her that they would go to the bottle shop after he had got the food (VROI ts, 13.11.07, page 26). When he returned he found that she had gone to the bottle shop on her own, leaving the car unlocked and the key in the ignition. He said that he was fearful that with that type of thinking and with alcohol it could lead to her becoming violent (VROI ts, 13.11.07, page 27).
At this point in the interview the police officer expressed a concern about the accused's welfare. He responded by saying:
A. Oh, I'm - I'm more worried about my welfare if I don't get to say everything I know so.
Q. Okay. So you want to continue?
A. I - I - I need to continue, yes (VROI ts, 13.11.07, page 27).
The accused said that after they returned to his house they both drank alcohol. During the evening there was a discussion about the accused selling his assets and buying a campervan so that they could go travelling and see if their relationship would work (VROI ts, 13.11.07, page 30). The accused said that Ms Dakin had recently returned from a holiday in Canada which he had financed. He said that this had nearly killed him financially and that he had pains in his arms and chest as a result of the stress (VROI ts, 13.11.07, page 32). Whilst in Canada Ms Dakin had been arrested for drunk and disorderly behaviour, shoplifting and other offences. The accused had lost money as a result of this and Ms Dakin had also missed her flight back to Australia (VROI ts, 13.11.07, page 33).
The accused said that during the course of the night he had been outside burning off in preparation for selling up. He said he went inside and Ms Dakin was on the phone to her mother in Broome. This caused him to become angry because he had placed a bar on long distance calls but Ms Dakin had reversed it without his knowledge (VROI ts, 13.11.07, page 34). The accused then said:
[S]he [the deceased's mother] ended up hanging up ‑ ah, hanging up on Alana and saying that I hate you and that I wish you weren't my daughter and all this and regardless of what I feel like I thought that was quite rough of what she'd said and, um, I was comforting her and, um, and it all starts to get a bit blurry from here because there was a lot of basically where in the past the, ah, um, I started getting blurry on the domestic violences when I've just spent so much time trying to be there for her and calm her that she's just I guess in a way she's abused me and ‑ ‑ ‑ I've just blanked out in a way (VROI ts, 13.11.07, page 35).
Ms Dakin then made further long distance calls to her step‑father in Broome and her uncle in Canada. There was a suggestion that her uncle had made a sexual advance to her whilst she was in Canada. The accused then said:
A. That escalated into her becoming quite, ah, erratic and violent and, um, then we just seemed to finish off the rest of the drinks and, ah, and I ‑ it gets a little bit blurry from there but, um, I ended up with a knife in my hand but I ‑ I can't remember the exact reasons for grabbing the knife because I ‑ I don't know how or why I've turned because it's gone from me being totally supportive of her ‑ ‑ ‑
Q. Mm hmm.
A. ‑ ‑ ‑ and then, ah, all ‑ it was something to do with her wanting to fight everyone and taken on and I said, 'Well, you know, well, you know, if you're gonna be causing all this trouble and ringing and around and that don't you think you should discuss it with me and, you know, and if you are gonna get into a fight [with] anyone don't you think that you should allow me to get in that position because I'm a better fighter' and then ‑ ‑ ‑
Q. Yeah.
A. ‑ ‑ ‑ it started getting onto, 'Oh, you're not, I am,' and then the knife came into it and, ah, I went and grabbed the knife but in what familiar order because usually she grabs the knife but for this time I grabbed it.
Q. Mm hmm.
A. I ‑ I admit I grabbed it and it was, ah, um, there was no intention to ‑ to do it ‑ to stab her or anything but then in the heat of the moment it became, ah, clear to me that I had some kind of not ‑ it was not like a though[t] to stab her it was more like a, um, a challenge. Not by me but by her. Oh, well, you know, 'Do it then,' and then it became egotistic, ah, like, ah, drunk, um, emotional, egotistical, knife in the hand ‑ where's this going ‑ and the fact that there's just so much trouble been in our relationship with other people and finances and this and that it's just blowing up and, ah, then she wanted the knife and I said, 'No, I'm not giving you the knife,' and then she stuck her hand out and said, 'I wanna die cut my arm.' I said, 'I'm not fuckin cutting your arm, all right. I'll put the knife away now.' I put the knife away and then she said, 'I want the knife, I want the knife,' and, ah, I can't remember exactly ‑ I wish I ‑ I wish I could remember. Maybe in time with a bit of counselling I can remember more about this part, um, but I can't remember. It was a ‑ it's a fold out knife and I can't remember the lead up to it but at one point she's gone like that and I've just slashed her arm there ‑ ‑ ‑
Q. Mm hmm.
A. ‑ ‑ ‑ and it opened up so much that I could see her ‑ all her tendons (VROI ts, 13.11.07, pages 36 ‑ 37).

The accused referred to attempts made by him to stop the bleeding to Ms Dakin's arm. He then said:
A. ‑ ‑ ‑ I can't remember how I ended up, whether I took the rug away, but somehow I managed to bandage that up ‑ ‑ ‑
Q. Mm hmm.
A. ‑ ‑ ‑ and then, um, was speaking to her and, um, said, 'Okay, well ‑ well I was in some sort of shock I just spoke to her for a second then, ah, ah, then we ended up in this ‑ at this particular point we started arguing over who was the stronger person and she said, 'I'm the stronger person'. I said, 'I'm sick of this shit, Alana, you're not the stronger person. You gotta stop fucking getting us into this shit'. 'I am.' 'You're not.' 'I am.' 'You're not.' And then I just remember grabbing the knife and I sliced her neck twice (VROI ts, 13.11.07, page 39).
The accused provided a sketch of the house and indicated where Ms Dakin was at the time she was stabbed. He also drew a sketch of her upper torso in order to indicate the wounds. He then said:
There was two slash marks ‑ ‑ ‑ (indistinct) a forward motion and a back motion but when I actually ‑ it was so emotional and, ah, not ‑ not, you're doin' it but you're not doin' it (VROI ts, 13.11.07, page 43).
When questioned further regarding the injury to Ms Dakin's arm the accused said:
Q. In relation to, um, you ‑ you mentioned that Alana was laying down. You're ‑ you're providing care for her ‑ her injury on her wrist ‑ on her arm.
A. That's correct.
Q. Okay.
A. But at the point of the cut that, um, my mind was flicking from one end to the other to ‑ to keep her alive or let ‑ kill her ‑ ‑ ‑
Q. Yeah.
A. ‑ ‑ ‑ basically and ‑ ‑ ‑
Q. Yeah.
A. ‑ ‑ ‑ um, and through no prior planned experience ‑ ‑ ‑
Q. Mm hmm.
A. ‑ ‑ ‑ I elected to ‑ to kill her. Um, ‑ ‑ ‑
Q. Okay.
A. ‑ ‑ ‑ and I was talking to her and see her ‑ her biological mother had just told her that she wished she wasn't her daughter and the girl's been raped so many times and she's been under the care of her stepfather since she was two ‑ ‑ ‑ and the girl's just so distraught and all she ever talked about was the spiritual side of her ‑ her biological father ‑ ‑ ‑ and, ah, um, in a kind of way I felt like I was relieving her from her pain and, um, ‑ ‑ ‑ I felt a sense of, ah, I felt her father there waiting for her and, ah, ‑ ‑ ‑ um, ‑ ‑ ‑
Q. So you ‑ you mentioned that you were ‑ when you were leaning over and she had first injury to her arm ‑ ‑ ‑
A. That's correct.
Q. ‑ ‑ ‑ you ‑ you mentioned that, ah, you were deciding ‑ you were flickering through whether to help her or kill her.
A. Not ‑ not on the arm, no. That ‑ that was a complete shock reaction (VROI ts, 13.11.07, pages 45 ‑ 46).
He was asked about how much time passed between the injury to the arm and the 'final injuries'. He said that about ten minutes passed and that she had then provoked him into 'a real verbal fight' (VROI ts, 13.11.07, page 52). He continued:
[S]he's, ah, saying something along the lines that, 'You're still not fucking tougher than me. You still can't fuckin (indistinct) little cut on my hand and I'm not whingeing'. She wanted [the] cover off. She wanted me to let her go and everything and I didn't actually have her but she was indicating to take the tourniquet off. I said, 'I can't take that off, mate, that's ‑ if ‑ if I take that off you'll bleed to death'. 'No, I fuckin won't. No I won't bleed to death,' and at this particular point the actual ‑ the, ah, the altercation I'll call it because I don't even know whether you'd call it a struggle ‑ ‑ ‑ as to the point where I decided to ‑ or have reacted in a similar manner to the first cut ‑ ‑ ‑to strike her again but then struck her in the neck area. At that point I realised I'd gone too far and the next one was intentional strike to finish like a ‑ a job ‑ ‑ ‑ (indistinct) (VROI ts, 13.11.07, page 53).
The accused was questioned about the strike path of the knife and said:
Q. So I just need to know the ‑ the actual strike path as to the knife and how you ‑ ‑ ‑
A. Was from this direction ‑ from this ‑ ‑ ‑direction ‑ ‑ ‑ um, so (indistinct) I'll show you there. Ah, I ‑ I (indistinct) like that so I ‑ the actual altercation ‑ cos there was a lot of anger going on ‑ ‑ ‑ even though I'm still trying to avoid and focus on this but she's crept up in crouch ‑ more crouch position but I can't remember exactly what she did but my reaction just grab the knife and sliced in that direction.
Q. Okay.
A. And then sliced again back in that direction and then ‑ ‑ ‑ the blood ‑ and then there was that much blood and, ah, and I didn't ‑ I couldn't help her and in the end I actually helped her bleed to death by actually not ‑ its not like ‑ yeah, I killed her, that's fine, but its not like I was trying to ‑ ‑ ‑ kill her cos I hated her, I ‑ ‑ ‑ I helped her to pass on ‑ ‑ ‑ to the spirit world and I spoke to her and I held her forehead and ‑ and I ‑ and then her last moments I spoke to her the whole way and said, 'You're Dad's here, your real Dad. You're finally gonna get to be with your real Dad,' and it was sincere spiritual passing on (VROI ts, 13.11.07, pages 55 ‑ 56).
As to the return stroke he said:
Q. The return stroke if you like, the one ‑ the second where you've come back ‑ ‑ ‑‑
A. Yeah.
Q. ‑ ‑ ‑ ‑ um, which one of the two would have been the ‑ strongest with the best connection do you think?
A. The one coming back.
Q. Okay.
A. For some reason I felt that I'd gone too far and had (indistinct) like, um, putting her out for misery at that point.
Q. Okay. So the ‑ the second one your intention ‑ ‑ ‑
A. The first one was, ah, ah, as indecisive as the arm ‑ ‑ ‑
Q. Yep.
A. But the third one was a calculation of a decision that ‑ ‑ ‑
Q. Okay.
A. ‑ ‑ ‑ that I'm gonna kill you then cos she was tempting me to kill her. She wanted me to kill her but ‑ ‑ ‑
Q. Yeah.
A. ‑ ‑ ‑ it was like that ‑ it'd ‑ it'd just been brewing domestic violence ‑ ‑ ‑
Q. Mm.
A. ‑ ‑ ‑ for time (indistinct) and ‑ ‑ ‑
Q. Okay.
A. ‑ ‑ ‑ we ‑ we ‑ we were in love with each other and we just kept thinking that ‑ ‑ ‑
Q. Anthony, ‑ ‑ ‑
A. ‑ ‑ ‑ it was gonna get better (VROI ts, 13.11.07, pages 57 ‑ 58).
The accused was then asked what he was wearing. He described the clothes and said that they were hanging up in the shower. He said that he had showered afterwards because he was in 'two or three states of mind' (VROI ts, 13.11.07, page 61). He described one of these as feeling dirty and sick in a kind of way that he had never felt before. He said that another thought he had was trying to cover it up some how but nothing specific came to mind. He said he chose to have a shower and clean himself and clean his thoughts. He then said:
A. I got out of the shower. I went back - I - I got dressed, I went back in, I looked at her. I sat down and I spoke to her spirit. I spoke to her.
Q. Yep.
A. And, ar, I just wanted to do the right thing. I love her, mate (VROI ts, 13.11.07, page 62).
After showering the accused drove to his parents home and told them what had happened. He was asked whether he drove straight there or went to any other places. He said:
A. No, drove straight there. I contemplated going, I just had this uncanny weird urge to have, ah, McDonalds. To have a McDonalds meal and go to - to through the drive thru and get something to eat from McDonalds and then go to Mum and Dads but then I elected to just keep going to Dads (VROI ts, 13.11.07, page 64)
When he got to his father's house he said he tapped on the window and asked his father to come out because he needed to speak to him. He said that he told his father, 'The worst thing that could possibly happen has happened and I've killed Alana'. He said that after telling his parents what had happened he was 'just a mess'. He then refers to telling his mother that if she was going to the house she should be prepared for what she would see (VROI ts, 13.11.07, page 65).
At this point in the interview the accused's voice became very quiet and the police interviewer asked him to come forward closer to the microphone. He then said:
A. Sorry, I think Alana's knocking me out in the spirit world.
Q. Yep, all right.
A. She still loves me I know that (VROI ts, 13.11.07, page 66).
The accused remained at his parents' house until the police arrived. He referred to continuing to talk to Alana:
A. --- Um, in a strange way I was talking to Alana and -
Q. Alright.
A. --- Working out how we were going to be loyal in this arrangement cos as far as I'm concerned and as much, ar, and regardless of what anyone says we're still engaged and, ar, it's, ar, if - if people don't believe in the after life that's alright but we did -
Q. Mm.
A. ---And we have our own journey still and, um, what's not done here will be done there and that - that - in our eyes that's got nothing to do with suicide. That's just, ar, when you die - while you're alive and when you die (VROI ts, 13.11.07, page 67).
He also referred to talking to Alana after he had showered. He said he had walked back into the room, sat on the lounge and talked to her. He said he had also lost his brother the previous year and that there was an energy 'that a person's still alive that you know when they're not'. He said he just 'worked with that'. He said that in the shower he had just washed himself with water and 'it was like I was washing it off me and into me at the same time' (VROI ts, 13.11.07, page 69).
The police officer then returned to what had been described as the second and third injuries. The injuries referred to are those to the neck and chest. The exchange was as follows:
Q. Um, now just when you went through things you ‑ you told us that the ‑ you ‑ you described it as a second and third injury. You said that, um, you slashed her twice the second and third injury. The first one was to her arm, is that right?
A. Yes, that's correct.
Q. And ‑ and the second and third injury can you just tell me why ‑ why was there the third injury? Why did you do it the third time?
A. Ah, it felt to me like some sort of, um, instinctive finishing move because it was too ‑ too much ‑ cos I'd tried to fix the first slash, when the second one happened it became a shock and the first one was so bad that the next one was more, ah, a decision that it had gone too far and that I had to put her out of her misery because she was gonna die anyway (VROI ts, 13.11.07, pages 71 ‑ 72).
The accused then explained how he came to bandage Ms Dakin's arm after the first cut. He said:
A. I said, 'You do realise how much your ‑ your arm's cut?' She said, 'Yeah, that's ‑ that's why I want a fuckin cigarette. Give me a fuckin cigarette.' They were pretty much her words.
Q. And ‑ and you told us that you were ‑ you were attending the injury.
A. That's correct.
Q. You ‑ you applied first aid.
A. Ah, I was in shock at first, as well (indistinct).
Q. And ‑ and then it ‑ it whilst you were attending her injury you ‑ you were kneeling down beside her in a carer's position you described it as. That the, ah, the ‑ the second injury ‑ you ‑ you caused the second injury ‑ you slashed her.
A. Yeah. Yeah, there was, ah, some sort of altercation but I ‑ without some sort of counselling cos at that ‑ the point of taking care of the first cut ‑ ‑ ‑
Q. Mm.
A. ‑ ‑ ‑ I'd never seen anything like that, let alone inflicted it on someone.
Q. Mm.
A. Um, all I specifically remember is the cuts ‑ ‑ ‑
Q. Yeah.
A. ‑ ‑ ‑ and, um, some sort of struggle because you ‑ when you do the forensics on the cuts you'll see that she was ‑ was trying to sit up or move in some kind of fashion for it to be cut like that because when I went and sliced in the first time almost sort of like pinned her in the ‑ in the ‑ between the chin and the chest sort of thing. I ‑ I can't remember exactly ‑ ‑ ‑ (indistinct) very vague on, um, exact - - - things (VROI ts, 13.11.07, pages 72 ‑ 74).
The questions then returned to the issue of how the accused came to inflict the second and third wounds. The following exchange occurred:
Q. can you ‑ can you tell us why between like tending her from the first injury which ‑ which went on for some time you tending to her you ‑ you picked the knife up and ‑ and slashed her across the neck?
A. It was a verbal argument ‑ ‑ ‑
Q. Mm.
A. ‑ ‑ ‑ that it was a verbal argument that she was stating that I was a pussy and that I wouldn't kill her and I didn't have the guts to kill her and, ah, that, ah, she'll ‑ she'll always be stronger than me cos she could kill ‑ she could kill a human and I couldn't and blah, blah, blah, and I wasn't ‑ I know Alana and at that point it ‑ it's not personal but she, ah, well she, when she got the drink in her, it is personal but it's not and I just got confused.
Q. So ‑ ‑ ‑
A. I ‑ I don't really know why I did it. I just got confused and anger. Combination of anger and confusion.
Q. Okay. So that was the words she used that you were a pussy and that you couldn't kill her, is that right?
A. Ah, yeah, I know but she was really, you know, harping that I wouldn't ‑ I wouldn't do it or couldn't do it or sort of thing.
Q. Yeah.
A. I though well I fuckin can, you know, but I don't want to. I don't wanna (indistinct) and that became, well fuck, and I did.
Q. So she was challenging you to kill her was she?
A. Oh, yeah (VROI ts, 13.11.07, page 74).
The accused said he did not understand why he did the first slash. He said it was a reaction and that she had wanted him to slash her. He said there was a lot of pushing to get to that point and it was not a simple thing. He then said he was going to need to speak to counsellors for a long time in order to explain it in depth and that it could not be done in one night. He said that he did not understand why it had occurred himself (VROI ts, 13.11.07, page 75).
The accused was then asked whether Ms Dakin spoke after he had inflicted the wounds to her neck and chest. He said:
She was, 'Get off me, get off me,' but the blood was coming out that fast that I knew she was dying and I was ‑ I was just watching in shock. Um, I didn't know what I was gonna do. I didn't know what was happening really. I was, ah, experiencing it for the first time and I was just losing the love of my life and (indistinct) I got no one to blame and just feeling horrible and just looking at options. When I said that I thought about covering it up it was more just like a part of a list of options like a general list, you know, just like what ‑ what can I do. What do I do, what can I do here. I can do this, this might happen. I can do this, this might happen. I elected to come to the police through my parents. Um, and I don't ‑ I ‑ I respect the law but I don't agree with it completely so I've learnt to always go through someone to come to the police to ‑ just so that you at least get to tell your story first to ‑ ‑ ‑ (VROI ts, 13.11.07, page 77).
A little later he said:
A. ‑ ‑ ‑ and I sat with here her, cos I sort of ‑ I spoke to her in her passing and I ‑ I helped ‑ I helped sort of held on her ‑ on her pressure - bit of pressure on around where the cut was, um, to assist with the ‑ the bleeding of the last bits and not so that it hurt to try and ease the pain and had her ‑ her forehead and spoke to her about, 'Can you see, ah, the light? Can you see your father,' and, 'You've been wanting to see him,' and I tried to turn it into, um, without sort of people knowing Alana and I and without being justified for what I've done, um, with our beliefs I just wanted her to ‑ to I wanted her dad to be there for her (VROI ts, 13.11.07, page 79).
The accused agreed that he had helped Ms Dakin bleed to death. This had involved holding her chest in order to make the bleeding faster (VROI ts, 13.11.07, page 80). The accused was questioned about the previous 24 hour police notice and was asked the circumstances in which that had issued. He said that he was unable to go into other incidents because his memory was 'just not right at the moment'. He said that his main purpose was just to deal with the events of that night 'because I love the girl and, ah, she - I just want her to feel justice in the after life and I still want her to be there for me when I get there, so' (VROI ts, 13.11.07, page 83).
The accused said that at his parents' house he was bawling his eyes out, talking to Ms Dakin and saying sorry to her and that he was basically hysterical at that point (VROI ts, 13.11.07, page 83). When asked by the police who was responsible for the death he said that both he and Ms Dakin were responsible. When asked whether anyone else contributed to the factors that led to the death he said that Ms Dakin did (VROI ts, 13.11.07, page 85).
It should be noted that Ms Dakin's blood alcohol content on post‑mortem examination was 0.259%. The accused's blood alcohol content as measured following the police interview was nil.

The accused's psychiatric history

The accused has an extensive history of prior admissions to psychiatric hospitals. The discharge summaries from those hospitals were obtained and provided to the psychiatrists who gave evidence in these proceedings. Dr Victoria Pascu, who was called by the defence, gave evidence as to the history. That history was not challenged and it is convenient to refer to it at this point
The accused was first admitted to the Mental Health Unit at Sir Charles Gardiner Hospital on 4 August 1999. He was taken to the hospital by some friends from the Eckankar Religious Group. The friends had brought him to the hospital because of a concern that he was expressing beliefs that were beyond those they considered normal for their group. This included hearing messages from the television and radio when they were switched off.
During this admission he was described as behaving inappropriately, making snarling noises, feeling stressed and down in his mood. His affect was described as guarded, suspicious, puzzled and fatuous (meaning a disconnect between his mood and the external expression of that mood). He appeared to stare into space as if responding to external stimuli. He referred to difficulties in knowing what was real and what was not real. He was discharged from hospital after four days with a diagnosis of psychotic disorder, schizophrenia and possible depressive symptoms with anxiety and panic.
Dr Pascu gave evidence that she had conducted some research into the Eckankar Religious Group. She said that they had beliefs about death, spirituality and souls. This included believing that different souls came together after death. She said that it was not unusual for young people who were becoming mentally unwell to seek explanations for their deteriorating state in spiritual beliefs. She suggested that in Mr Evan's case he tried to find an explanation for his spiritual thoughts by finding a group that he believed shared them. She noted that his spiritual beliefs did not appear to have any basis in his family history. Furthermore, his presenting symptoms, including hearing messages from the television and radio and making snarling noises, had no basis in spiritual beliefs. These were typical symptoms of a psychotic state.
The accused's second admission occurred shortly after the first, on 20 August 1999, to the Joondalup Hospital. The discharge notes stated that he presented with a number of religious ideas and beliefs which led to a diagnosis of psychosis being raised, though this was thought to need further clarification. During this admission the accused described 'a thinking muscle that existed both in the forehead and the right elbow and that he was able to feel the chi force flowing through his veins'. He said that by use of this thinking muscle he could tell things about people. The discharge summary stated that there was a significant risk of the accused developing a major psychotic disorder and follow up assessments were organised with a community health nurse.
The third admission occurred on 17 October 1999, again to Joondalup Hospital. This followed a sudden marked deterioration in the accused's mental state with clear thought disorder, disorientation and confused feelings. He described being unable to know what was real and what was not. He presented with disorientation, referential and persecutory delusions. He again referred to messages being sent through the television and exhibited bizarre theories about electricity coming from above from satellites and also from the ground 'which squashes people'.

Dr Walton was asked to comment on the behaviour of the accused as referred to by Wayne Evans in his evidence. This included the references to hearing voices from the television and being monitored by satellites. Dr Walton said that this behaviour was entirely consistent with a diagnosis of schizophrenia.
When interviewed by Dr Walton in 2010 the accused continued to refer to spiritual concepts. He said that there were spirits around him that he could sense. In particular, he said that Ms Dakin was present at the time of the interview and that he could communicate with her. By the time of this interview the accused had been in custody for some years and had been medicated for psychosis during that period.
Dr Walton said that the accused had been serially observed by psychiatrists over many years and, even though there had been apparent difficulty with applying a consistent diagnosis (which he said was far from unheard of), there had been repeated observations and histories taken from him which were reasonably consistent in terms of psychotic disturbance from at least 1999. In Dr Walton's view this showed that there had been a continuity of illness that would encompass the period of offending. The fact that psychosis of a similar type was observed both before and after the event increased the likelihood that the accused was suffering from psychosis at the relevant time. He said that the presence of significant domestic disturbances in the weeks prior to 13 November 2007 were such as could induce an acute breakdown in a person who is suffering from schizophrenia.
Dr Walton was also asked to consider the first and second police interviews. He said that the accused was significantly less mentally disturbed in the first interview. He was more emotionally responsive and less tangential. In Dr Walton's view this 'virtually excludes' (ts 2127) the proposition that any differences in behaviour could be attributable to a personality disorder. That is so because personality traits ought to be consistent over time. The fact that there were significant changes increased the likelihood that those changes were due to illness.
Dr Walton said that there were limitations on use of the interview of 13 November 2007 as evidence of the accused's mental state. This was firstly because it was not a psychiatric evaluation. Quite properly the police were more interested in determining the facts rather than eliciting symptoms. However, Dr Walton thought that it was significant how difficult it was for the police to conduct the interview with the accused. The accused was repeatedly asked quite simple concrete questions and would progressively drift further and further away from the original topic. Dr Walton described this as a textbook example of schizophrenic thought disorder. Given that the interview occurred a relatively short time after the offence Dr Walton had a reasonable degree of confidence that how the accused appeared on the video was, at a minimum, how he was likely to have been at the time of the killing.
There was also a striking lack of emotional expression exhibited by the accused in the interview. This was most obvious when he was describing the inflicting of the wounds without obvious distress. Dr Walton said this was a fairly classic feature of schizophrenia which was usually described as emotional incongruity; that is, a mismatch between the subject matter and the overt expression of emotion.
Dr Walton identified a number of examples in the interview of what he considered were thought disorder. He stressed however that it was important to take into account the context of the whole interview. He said that normal conversations can be a bit odd at times but the odd thinking on the part of the accused occurred repeatedly in the interview. The first example referred to was after the caution was given and the accused made a statement regarding how difficult for him it was to understand what had occurred and that he was a spiritual person. Dr Walton thought this was significant because it occurred early in the interview and it was unusual in his experience for an invitation to explain the caution to produce this type of response. He considered it was an indicator of psychotic disturbance. Other examples of disordered thinking were given as being at interview transcript pages 10, 18, 37, 45, 47, 53 ‑ 54, 56, 61 ‑ 62 and 71.
Dr Walton was asked whether he agreed with Dr Brett's proposition that the accused's incongruous affect and disordered thinking in the 13 November 2007 interview could be attributed to a combination of him being tired, the severity of the incident and his usual manner of answering questions. He noted that the accused was asked whether he was tired and, whilst he did not answer that question, observations did not suggest that he was terminally tired. He was not yawning, nodding off to sleep or not listening to the questions. It was highly probable that he would have been experiencing some degree of tiredness but it was not a striking feature of the interview.
As regards the severity of the incident, Dr Walton said that a variety of responses might be expected but the accused's response was most unusual. A more common response would be what was described as 'stunned mullet' where a person is just essentially mute and unresponsive. Another common response would be someone who is markedly distressed and tearful. However, in the case of the accused he was attentive to questions but his responses were bizarre. Dr Walton did not see this as a shock reaction.
As regards whether the accused's behaviour could be attributed to his habitually odd way of answering questions, Dr Walton agreed that there was evidence that he had exhibited some odd behaviour over time. However, he said that the severity of it seemed to have significantly waxed and waned, which would suggest that it was an illness phenomena rather than merely being part of his conversational style.
Dr Walton was taken to those parts of the interview where the accused seemed to indicate some awareness that he had done something wrong. Dr Walton said that the first point to be made about these were that this interview was occurring some hours after the event by which time the accused had had time to reflect and seen the reactions of his parents and the police. It was likely that that had some impact on him. For this reason, statements in the interview could not be seen as a direct comment about the accused's state of mind at the time of the killing. Dr Walton also said that the comments may be an indication that the accused had an appreciation of the legal wrongfulness but not the moral wrongfulness of his actions. He had an appreciation that he was responsible for the death and that in such circumstances police would be routinely involved. However, Dr Walton considered that to go beyond that and suggest that the accused had the capacity to make an appropriate moral judgment would be hazardous.
Dr Walton concluded by saying that he was convinced that the accused had a psychotic illness. He said that this illness included having deluded ideas which, at a minimum, were a significant distracting factor in terms of trying to reason sensibly about things which involved an appreciation of the moral implications of an act. He said that there was manifest evidence that the accused's thinking was disturbed at the time of the interview. The indications are that he would have been struggling to think clearly in a similar fashion at the time of the killing. Dr Walton accepted that he could not exclude other possibilities but, in his view, the overwhelming weight of the psychiatric evidence was that the accused was in a sufficiently disordered frame of mind as to deprive him of the capacity to know that he should not have done the act which caused the death of Ms Dakin.
In cross‑examination Dr Walton maintained that comments made by the accused during the interview and to his father after the event were unlikely to be indicative of an appreciation of the moral wrongfulness of the act. He was asked:
Q. Does that suggest that he knew that that was wrong?
A. It suggests that he had an appreciation of the legal consequences of wounding someone. And there might be an implication in that that also might be accompanied by moral appreciation but it's not clear that that's the case.
Q. And do you add that qualification because, almost by definition, criminal acts involve moral wrongdoing and not all moral wrongdoing involves a crime?
A. No, it's more to do with his appreciation. And, of course, I'm bearing in mind that he's told me directly much later that he still considers what he did was right which is a much more unequivocal statement than he gets to anywhere in this record of interview (ts 2156).
As to some of the passages, Dr Walton did not accept an interpretation that they showed an appreciation of the moral wrongness of the act. He was asked particularly about a reference by the accused to him crying in the back of the police vehicle and saying he was sorry. When asked whether this was an acknowledgement that the accused had done the wrong thing, Dr Walton said:
Not necessarily. Again, it could be no more than expression of loss and sorrow in that sense. I agree with, though, that it - it's consistent with possibly some appreciation of it. But what I would add to that is, as I read it, these suggestions that he might have had some sort of moral appreciation, to me at least, are well outweighed by the other evidence of his distorted thinking. That's the first point. The other thing is, of course, this statement is occurring some hours after the event. And the fact that it is occurring after his appreciation of killing her is relevant. It doesn't necessarily reflect that that was his frame of mind precisely at the time of the killing. Which, of course, is the relevant question (ts 2160).

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) Criminal Procedure Act 2004 (WA). 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 offence 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 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 could be convicted of the crime of murder it would have to be proven beyond reasonable doubt that he committed that offence. At the relevant time s 279 of the Criminal Code provided that a person who unlawfully kills another with, inter alia, an intent to do grievous bodily harm is guilty of murder. The relevant elements of the offence, for the purposes of this trial, are that the accused killed Ms Dakin, that the killing was unlawful and that he did so with intent to do grievous bodily harm.
It is unlawful to kill any person unless the killing is authorised, justified or excused by law: s 268 of the Criminal Code (WA). 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 made a formal admission that he had caused the death of Ms Dakin and I am therefore satisfied beyond reasonable doubt that he killed her.
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 killing 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 his 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 an intention to do grievous bodily harm to Ms Dakin at the time of her killing. If that intention is proven beyond reasonable doubt the issue of provocation is then raised by the defence.
The partial defence of provocation, as it existed at the relevant time, would have the effect of reducing the offence from one of murder to manslaughter: s 281 Criminal Code. The defence submission is that the accused acted in the heat of passion caused by sudden provocation and before there was time for his passion to cool. The test for provocation is by reference to what an ordinary person could or might have done: Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58, 69. Having been raised, and assuming it is reasonably open on the evidence, it would be necessary for the prosecution to exclude provocation beyond reasonable doubt. It is unnecessary for me to refer in any more detail to the principles relating to provocation since I am satisfied that on the evidence in this case the insanity defence has been made out.
Finally, 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

Section 27 of the Criminal Code as it stood at the relevant time, provided as follows:
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 admission 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.
A person whose mind, at the time of his doing or omitting to do an act, is effected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, 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 he ought not to do the act which caused the death of Ms Dakin.
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.
Every person is presumed to be of sound mind and to have been of sound mind at any time which comes in question until the contrary is proved: s 26 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 a capacity to know that a person ought not to do an act, Dixon J said in Porter:
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 (189 - 190).
His Honour went on to say that what is meant by incapacity in these contexts was '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'.
In Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 the High Court held that there was 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:
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 (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 view the act as wrong. Rather it is a capacity of the particular accused either to discern the difference between moral good and evil or to think rationally of the reasons which would lead ordinary people to consider the act to be right or wrong: Evans v The State of Western Australia [2010] WASCA 34 [60] (Wheeler JA).
Also in Evans McLure P considered what is meant by the term 'know' in s 27:
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 [31].
In Hone v The State of Western Australia [2007] WASCA 283 the Court of Appeal considered the significance of uncontradicted expert psychiatric opinion where the issue of insanity has been raised by an accused. Whilst this is not a case of uncontradicted evidence, Hone does assist in how psychiatric evidence can be dealt with. Miller JA said:
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 Hall (1988) 36 A Crim R 368, where a number of relevant cases were reviewed. Roden J said:
Juries are not bound to accept and act upon expert evidence. Nevertheless they are not entitled to disregard it capriciously. These two propositions have found expression and support in a line of authorities developed in England with regard to the defences of insanity and diminished responsibility.
In Rivett (1950) 34 Cr App R 87, Lord Goddard CJ, said:
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 (94).
The Court of Criminal Appeal was there dealing with medical evidence relating to a defence of insanity.
Eight years later, when dealing with a defence of diminished responsibility, Lord Goddard showed the other side of the coin, in Matheson [1958] I WLR 474; 42 Cr App R 145, saying (at 478; 151):
While it has often been emphasised, and we would repeat that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors' evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be 'a true verdict in accordance with the evidence'.
In Bailey (1977) 66 Cr App R 31, another diminished responsibility case, Lord Parker CJ said (at 32):
The court has said on many occasions that of course juries are not bound by what the medical witnesses say, but at the same time they must act on evidence, and if there is nothing before them, no facts and no circumstances shown before them which throw doubt on the medical evidence, then that is all that they are left with, and the jury, in those circumstances, must accept it.
In both Matheson and Bailey, manslaughter verdicts were substituted for jury verdicts of guilty of murder, on the basis that the medical evidence was 'all one way', and there was no other material which would justify its rejection. It was otherwise in Walton [1978] AC 788; 66 Cr App R 25. The Privy Council was there considering a murder conviction where a diminished responsibility defence had been rejected. In the judgment, which was delivered by Lord Keith of Kinkel, there are observations that 'the jury were entitled to regard (the medical evidence) as not entirely convincing', and 'their Lordships have come to be of opinion that in all the circumstances the jury were entitled not to accept as conclusive the expression of opinion by Dr Bannister'. After a consideration of both Matheson and Bailey, the following statement of principle was made:
These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the defendant before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence.
The effect of those decisions is accurately summarised in Professor Smith's commentary on Walton [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.
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 [124] - [126] (original emphasis).

In the same case 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 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 the case of the 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:
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 & McPherson J agreed) said (164):
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, 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' [6].
His Honour also noted that in assessing the actions of an accused person it may be important to avoid the danger of applying the standards of commonsense and rationality used by sane rather than mentally ill people. 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 that what he had done was wrong was his attendance at a police station immediately after he had killed a woman. That, too, 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, Fullaghar, Menzies and Windeyer JJ) said:
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 a sane mind and accordingly would be governed by quite different beliefs and perceptions, and a different consciousness and understanding of the things that would be significant to the sane. In cases of this kind it may well happen that expert witnesses accepting the hypothesis that a prisoner is insane are not on the same ground as counsel adopting the opposite hypothesis and arguing according to the common sense of ordinary men supplied by the experience of sane persons [4].
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 that case. In the present case all of the psychiatrists are in agreement that the accused was suffering from a mental impairment at the time of the killing. However, they have different views as to the nature and severity of the mental illness that the accused was suffering. More importantly, they have different views as to whether mental illness at the time of the killing deprived the accused of the capacity to know that he ought not to do the act which caused the death of Ms Dakin. Accordingly, this is a case that requires close analysis of the evidence of the psychiatrists and of the evidence of surrounding events.

Findings

There can be no doubt that from at least 1999 the accused suffered from a mental illness. This was of a fluctuating severity but was sufficiently severe on a number of occasions to result in his admission to psychiatric hospitals. The symptoms were not always precisely the same, however they were similar in that they involved delusional beliefs, significantly disordered thinking and, sometimes, hallucinations.
Whilst is it not necessary for me to reach a conclusion as to an appropriate diagnosis, I do accept the evidence of Dr Pascu and Dr Walton that when seen in its totality, this evidence indicates that the accused has suffered from chronic schizophrenia. The nature of this illness is such that it is likely to have continued since 1999 at varying levels of intensity, with acute episodes occurring when the accused confronted particularly stressful times in his life.
The evidence of the accused's father and of his brother support the conclusion that the mental illness is one of longstanding. I accept Wayne Evans' evidence that there was a pattern in the accused's behaviour where his illness would become worse and he would have difficulty coping and maintaining his independence. At these times he would return to live with his parents who would provide him with support and assistance until he was well enough to engage with a more independent life. This pattern continued up to and including 2007.
In the three weeks prior to 13 November 2007 the evidence points clearly to the accused becoming stressed and having difficulty coping. His reports to the police, his return at one point to live with his parents and his attempts to obtain a violence restraining order are indicative of this.
All of the psychiatrists accepted that stress could be a relevant factor in a deterioration of mental illness. In my view, stress is particularly relevant in the accused's case. His past psychiatric history indicates that acute episodes have occurred following periods of high stress. The three week period prior to 13 November 2007 was a turbulent one for the relationship of the accused and Ms Dakin. There were several violent incidents in which Ms Dakin was drunk and highly aggressive. The occurrence of these incidents is confirmed by independent police evidence. These incidents would likely have caused stress to any person. I accept Dr Pascu's evidence that in the accused's case they were likely to have caused a deterioration in his mental illness.
This deterioration is supported by the contrast between the accused's presentation at the interview on 23 October 2007 and at the interview on 13 November 2007. As I have earlier noted, there is a marked and significant difference between the accused's appearance and the way in which he answers questions at these two interviews. That difference is much more readily apparent from a viewing of the interviews than from a reading of the transcript. I accept that there are some odd features in the earlier interview but these are far more frequent, pronounced and noticeable in the second interview.
Prior to the first interview the accused had experienced a period of approximately five weeks during which Ms Dakin was away in Canada. He later described that period of five weeks as one of comparative stability. The following three weeks were of a very different nature on any view. That the events of those weeks caused anxiety and stress to the accused and resulted in a deterioration of his mental condition is consistent with his differing presentation at those two interviews.
Dr Brett suggested that the difference between the interviews could be explained by tiredness, the difference in the severity of the consequences and the accused's usual manner in answering questions. The last factor could not account for the difference, as I accept that personality is a constant factor.
As regards tiredness, whilst it is entirely possible that the accused was tired at the time of the second interview given that it occurred in the early hours of the morning and that he had had no sleep for a considerable period beforehand, the features that have been referred to as bizarre or unusual in this interview by Dr Pascu and Dr Walton are not features that can be sensibly attributed to tiredness. In any event, the overt signs of tiredness were not obvious and the accused at no stage made any complaints of being tired.
As regards the different consequences, it is certainly true that at the time of the second interview the accused was aware that his actions had resulted in a death. However, as Dr Walton pointed out, his response to that consequence was not one of shock, disbelief or distress. I accept that the better explanation for his behaviour at the second interview is that there had been a deterioration in his mental illness.
The significant question is whether the accused was deprived of the capacity to know that he ought not to do the act which caused the death of Ms Dakin at that time. This requires an examination of the surrounding events in order to determine the likely degree of severity of the illness at that time. I accept Dr Pascu's evidence that it is important to bear in mind the whole context, including the accused's prior psychiatric history. This is a particularly relevant consideration when viewing the interview of 13 November 2007.
Viewed in isolation, some of the behaviour and the answers given by the accused in the second interview could possibly have explanations other than that the accused was suffering an acute psychotic episode. Dr Brett was of the view that the accused's conduct was within the range of normal, bearing in mind the traumatic circumstances and the accused's unusual personality. In regard to whether the accused had the relevant capacity, Dr Brett noted statements made by the accused to his father and in the interview which appeared to acknowledge the wrongfulness of his actions.
In contrast, Dr Pascu and Dr Walton considered that the accused exhibited behaviour in the 13 November 2007 interview that was likely to be indicative of a psychotic episode. Dr Pascu believed that when seen in the light of the accused's psychiatric history, the accused's responses and behaviour were consistent with a past pattern. As regards references to the wrongfulness of his actions, Dr Pascu and Dr Walton noted that these were acknowledgements that in some cases were equivocal, occurred in the context of a police interview not a psychiatric assessment and occurred some hours after the event when psychosis may have been subsiding. They both believed that the totality of the evidence favoured a conclusion that at the time of the killing the accused was suffering a psychotic episode of sufficient severity to deprive him of the relevant capacity.
I have come to the conclusion that the evidence of Dr Pascu and Dr Walton is to be preferred. One reason for that is that a factor which Dr Brett took into account was that at his 2008 clinical interviews with the accused he was unable to elicit any psychotic symptoms. A possible reason for this may be that psychosis was not present at that time. However, it is notable that both Dr Pascu and Dr Walton were able to elicit clear psychotic symptoms in their later interviews with the accused. Dr Pascu's first interview had, furthermore, been conducted less than three months after Dr Brett's second interview with the accused. This tends to show that the illness is, as Dr Pascu has suggested, one that is persistent and longstanding. Whilst chronic schizophrenia can be a fluctuating illness, the fact that Dr Brett could not detect symptoms of psychosis but that the other psychiatrists could, suggests that there may be other reasons for this other than an absence of psychosis, such as a lack of sufficient rapport. The fact that Dr Brett did not elicit psychotic symptoms has influenced his conclusions as to the nature and severity of the accused's mental illness.
The second reason why I prefer the evidence of Dr Pascu and Dr Walton is that their evidence gives more emphasis to the surrounding context. In particular, the accused's psychiatric history and the events in the three weeks preceding 13 November 2007. The accused was not a person who was said to have had an unprecedented psychotic episode. He had a long and well documented history of mental illness. That history was relevant in considering possible explanations for his actions. It was also relevant in assessing his conduct in the second interview. Whether the things he said in that interview were normal expressions of spiritual beliefs and the difficulties that might be faced by a normal person dealing with traumatic events, when taken out of the context of his history, invites comparisons with standards that are not appropriate to the accused. This is not to suggest that psychosis should simply be presumed. Rather, in examining the accused's actions and behaviour it is relevant to take into account the whole context. When that whole context is taken into account the best and most likely explanation for the accused's behaviour in the second interview is that he was experiencing an acute psychotic episode at that time.
The third reason why I prefer the evidence of Dr Pascu and Dr Walton is that, in my view, their interpretation of the second interview is more convincing. That interview is strikingly unusual in many respects. The accused is often unresponsive to questions and volunteers information which is bizarre and, sometimes, incoherent. He frequently expresses confusion and the need for expert assistance to understand what has occurred. It is apparent that he is motivated to engage in the interview out of a desire to try to capture and understand what has happened. He says that this needs to be done at that time and it is apparent that he is thinking as much about his own welfare as any desire to assist the police. His struggle to comprehend is understandable in a context where his illness has prevented him on past occasions from being able to distinguish what is real and what is not. The accused's frequent references to spirituality and even to being 'knocked out in the spirit world' by Ms Dakin are clearly more consistent with delusions and, possibly, hallucinations than being the expression of normal religious beliefs.
These conclusions are reinforced when the accused's presentation at the first interview is considered. That difference relates not only to tone and appearance but also to the content. The difference is so marked as to strengthen a view that the accused was suffering an acute stage of his illness as at 13 November 2007.
The statements made by the accused to his father and the police following the killing, and during the second interview, may indicate an awareness of the legal wrongfulness of his actions. However, I note that these statements are made after the event and are not, therefore, inconsistent with a lack of capacity at the relevant time. A number of the statements are, in any event, vague or equivocal. The possibility that the accused had some awareness of the legal consequences but was, nonetheless, deprived of moral judgment is a very real one. It would be wrong, in my view, to measure the accused's words and conduct by those applicable to an entirely sane man (just as in Mizzi attendance at a police station by a man suffering from paranoid schizophrenia could not be assumed to be indicative of an awareness that what was done was wrong).
Having considered all of the evidence, I am satisfied on the balance of probabilities; that is, that it is more likely than not, that at the time of the killing the accused was suffering an acute psychotic episode and that he was deprived of the capacity to know that he ought not to do the act which caused the death of Ms Dakin. I have come to that conclusion because it is likely that the psychotic episode was one that involved delusions and dysfunctional thinking of such severity that the accused was unable to make the relevant moral choice. That psychotic episode was a manifestation of his chronic schizophrenic illness and was consistent with episodes that he has suffered in the past.

Conclusion

I find the accused not guilty on grounds of unsoundness of mind. The accused will be the subject of a custody order pursuant to the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 21.