The State of Western Australia v Haast
[2020] WASC 161
•15 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HAAST [2020] WASC 161
CORAM: MCGRATH J
HEARD: 4 - 5 MAY 2020
DELIVERED : 15 MAY 2020
PUBLISHED : 15 MAY 2020
FILE NO/S: INS 29 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
BRIAN ALAN HAAST
Accused
Catchwords:
Criminal law - Trial by judge alone - Attempted murder - Insanity - Whether accused was mentally impaired - Whether accused lacked the capacity to know that he ought not to do the acts - Whether accused lacked the capacity to control his actions
Legislation:
Criminal Code (WA), s 1, s 26, s 27, s 283
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 21, s 24
Criminal Procedure Act 2004 (WA), s 93, s 118, s 120, s 126, s 142
Evidence Act 1906 (WA), s 32
Result:
Accused found not guilty on account of unsoundness of mind
Custody order made
Category: B
Representation:
Counsel:
| Prosecution | : | Mr B B Sertorio |
| Accused | : | Mr S D Freitag SC |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | DG Price & Co |
Case(s) referred to in decision(s):
Evans v The State of Western Australia [2010] WASCA 34
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
Quartermaine v The Queen (1980) 143 CLR 595
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Porter [1933] HCA 1; (1933) 55 CLR 182
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Marotta [2018] WASC 329
Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254
MCGRATH J:
Mr Haast has been indicted on one count that alleges that on 17 October 2018 at Wangara he attempted to unlawfully kill Mark Damian Pember contrary to s 283(1)(a) of the Criminal Code (WA). The State case is that Mr Haast stabbed Mr Pember with a knife with the intent to kill and thereby caused bodily injuries to Mr Pember.
Mr Haast made an application for a trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA). On 22 July 2019, Corboy J ordered that Mr Haast be tried by judge alone.[1]
[1] Orders of Corboy J dated 22 July 2019.
At the commencement of Mr Haast's trial on 4 May 2020, a plea of not guilty on account of unsoundness of mind was entered by Mr Haast.[2] The State accepted at trial that the expert evidence supported a finding that the accused was of unsound mind at the time of the incident.
[2] Criminal Procedure Act 2004 (WA), s 126(1)(d), s 142.
Therefore, the issue at trial was whether Mr Haast could prove on the balance of probabilities that he was not criminally responsible for the attempted murder of the complainant on account of unsoundness of mind. That issue requires the determination of the following matters:
(1) Was Mr Haast mentally impaired at the time that he attempted to unlawfully kill the complainant?
(2) If Mr Haast was mentally impaired at the relevant time, did his mental impairment deprive him of one of the capacities contained in s 27(1) of the Criminal Code, relevantly, the capacity to control his actions or the capacity to know that he ought not to do the act?
For the following reasons, I am satisfied that it is more likely than not that Mr Haast was mentally impaired at the time he stabbed Mr Pember with the knife and thereby caused bodily injuries. I am further satisfied that the mental impairment was of such a nature and intensity as to deprive Mr Haast of the capacity to know that he ought not do the acts that caused the injuries to Mr Pember. Accordingly, Mr Haast cannot be considered criminally responsible for his actions and must be found not guilty on account of unsoundness of mind.
Therefore, I am required to make a custody order pursuant to s 21 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). Mr Haast will be detained until released by an order of the Governor.[3]
[3] Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 24.
In these reasons, I will consider the following:
(1) The Agreed Statement of Relevant Events, the admissions made by Mr Haast pursuant to s 32 of the Evidence Act 1906 (WA), and the evidence received at trial.
(2) The relevant legal principles.
(3) The psychiatric evidence.
(4) Assessment and findings.
Admissions and agreed events
The accused made admissions pursuant to s 32 of the Evidence Act in the following terms:[4]
(1)On 17 October 2018 at Wangara Mr Haast stabbed Mark Damian Pember.
(2) At the time he stabbed Mr Pember, Mr Haast had formed an intention to kill Mr Pember.
[4] Formal admission by Mr Haast pursuant to s 32 of the Evidence Act 1906 (WA) dated 11 November 2019, Exhibit 2, Agreed Book of Materials, 2.
Both counsel for the State and for the accused agreed to rely upon an Agreed Statement of Relevant Events.[5] Given that the Agreed Statement of Relevant Events made reference to statements and material from the State's brief of evidence, an Agreed Book of Materials was received as an exhibit.[6] During the trial the parties relied upon particular statements and material that formed part of the Agreed Book of Materials.
[5] Exhibit 1, Agreed Statement of Relevant Events.
[6] Exhibit 2, Agreed Book of Materials.
The State called one witness to give evidence, Dr Steven Patchett, Consultant Forensic Psychiatrist.[7] Mr Haast elected not to give evidence on his behalf but called evidence from Dr Victoria Pascu, Consultant Forensic Psychiatrist.[8] In addition, exhibits were received during the trial being further photographs taken at the scene of the incident.[9]
[7] ts 29 (04/05/2020).
[8] ts 61 (04/05/2020).
[9] Exhibit 3, Photographs numbered 7196, 7197, 7198.
With respect to the Agreed Statement of Relevant Events, s 93 of the Criminal Procedure Act provides:
(1)If an accused pleads not guilty to a charge on account of unsoundness of mind and the judge is satisfied ‑
(a)that the only fact in issue between the accused and the State is whether, under TheCriminal Code section 27, the accused is not criminally responsible for an act or omission on account of unsoundness of mind; and
(b)that the prosecutor consents, and the accused does not object, to the judge doing so; and
(c)that it is in the interests of justice to do so,
the judge ‑
(d)may decide the issue referred to in paragraph (a) on any evidence and in any manner the judge thinks just; and
(e)for that purpose, may ascertain any fact by the verdict of a jury or otherwise; and
(f)may find the accused not guilty of the charge on account of unsoundness of mind; and
(g)if such a finding is made and a jury has been sworn to give a verdict on the charge, must discharge the jury from giving its verdict on the charge.
(2)Subsection (1) is in addition to and does not affect the operation of section 146.
Given that the parties consented to the Agreed Statement of Relevant Events being relied upon, I am required to determine whether it is in the interests of justice to decide the issue in reliance on the agreed facts. After careful consideration, I am satisfied that it is in the interests of justice to receive the Agreed Statement of Relevant Events as establishing part of the factual circumstances relevant to the determination of the issues in this case. As I have observed, the parties also rely upon an Agreed Book of Materials that comprises part of the State's brief of evidence. The relevant events are thereby supplemented by the contents of the Agreed Book of Materials, the oral testimony of the witnesses and the exhibits received.
The Agreed Statement of Relevant Events is in the following terms:
Background
1.Brian Haast (accused) was aged 53 as at the date of the offence and is now 54.
2.He has no prior history of offending,[10] illicit drug use or alcohol abuse.
[10] Criminal history of the accused dated 1 November 2018, Exhibit 2, Agreed Book of Materials, 3.
3.He is married to Sharon Haast.[11] They have been together for over 30 years and have two adult children.
[11] Statement of Sharon Haast, 22 October 2018, Exhibit 2, Agreed Book of Materials, 103.
4.Mark Pember (complainant) was aged 40 years as at the date of the offence.
5.The accused had known the complainant for approximately 10 years, having met when they were working together at Fielders Steel in Osborne Park in 2008.[12]
[12] Statement of Mark Pember, 17 October 2018, [2] ‑ [5], Exhibit 2, Agreed Book of Materials, 4.
6.In 2011, the complainant and the accused started their own business, MBK Roof Accessories Pty Ltd (MBK), together with two business partners, Kevin Vear[13] and Kristopher Vear. Each of the four partners was a Director of MBK.
[13] Statement of Kevin Vear, 22 October 2018, [14] ‑ [19], Exhibit 2, Agreed Book of Materials, 87.
7.The Vears were silent partners who were not trade qualified.[14] The complainant and the accused worked at the business premises, which was a warehouse situated at Unit 9, 57 Paramount Drive, Wangara.[15]
[14] Statement of Mark Pember, 17 October 2018, [19], Exhibit 2, Agreed Book of Materials, 6.
[15] Statement of Mark Pember, 17 October 2018, [8], Exhibit 2, Agreed Book of Materials, 5.
8.The accused had a second job, working on the weekends as a patrolman for Wilson Security.[16]
[16] Statement of Sharon Haast, [23], Exhibit 2, Agreed Book of Materials, 105.
9.None of the Directors contributed any capital to finance MBK, which initially relied on an overdraft facility, secured against the complainant's home.[17]
[17] Statement of Kevin Vear, [20], [48], Exhibit 2, Agreed Book of Materials, 89.
10.The company was and always had been solvent and profitable, achieving reasonable success, such that the Directors were drawing fees, distributed equally between them.[18]
[18] Statement of Kevin Vear, [35] ‑ [41], [47], Exhibit 2, Agreed Book of Materials, 90.
11.However, the economic climate in 2016 resulted in a decline in income. The Directors stopped drawing fees. Employees, including the accused, continued to be paid a salary.
12.At around the same time, the complainant announced that he intended to move to Busselton with his family. This led to discussions about the future of MBK.[19]
[19] Statement of Mark Pember, 17 October 2018, [15], Exhibit 2, Agreed Book of Materials, 6; Statement of Kevin Vear, [49], Exhibit 2, Agreed Book of Materials, 92.
13.The Vears offered to buy out the other shareholders, on condition that the accused continued working for MBK for two years.[20]
[20] Statement of Mark Pember, 17 October 2018, [17], Exhibit 2, Agreed Book of Materials, 6.
14.While the accused was prepared to sell his shares in MBK, he wanted no part in its continued operation.[21]
[21] Statement of Mark Pember, 17 October 2018, [18], Exhibit 2, Agreed Book of Materials, 6.
15.The reason he proffered to Kevin Vear was that, without the complainant, he felt unable to shoulder the workload. The accused also expressed a concern that the complainant would compete with MBK and run their customer base down.[22]
[22] Statement of Kevin Vear, [53] ‑ [56], Exhibit 2, Agreed Book of Materials, 93.
16.In July 2018, the Directors convened a meeting to determine how to finance the purchase of the accused's shares. According to Kevin Vear, the accused's attitude to negotiations seemed positive, though he was somewhat 'intractable and indecisive'. The complainant impressed as eager to ensure that the accused was treated fairly.[23]
[23] Statement of Kevin Vear, [63], [93], [104], Exhibit 2, Agreed Book of Materials, 94.
17.Negotiations reached an impasse in around September 2018, when the accused announced that he was no longer willing to sell his shares. It was unanimously decided to wind up MBK. No apparent hostility flowed from that decision.[24]
[24] Statement of Mark Pember, 17 October 2018, [23] ‑ [24], Exhibit 2, Agreed Book of Materials, 7; Statement of Kevin Vear, [69], [80], [82], Exhibit 2, Agreed Book of Materials, 94.
Relationship
18.As far as those who knew them were aware, the relationship between the accused and the complainant was positive. An employee of MBK, James McGuinness, who worked alongside them for two years prior to the offence, did not notice any animosity. Nor was Mrs Haast aware of any issues between them.[25]
[25] Statement of Kevin Vear, [27], Exhibit 2, Agreed Book of Materials, 90; Statement of Lorraine Hegarty, [36], Exhibit 2, Agreed Book of Materials, 114; Statement of James McGuinness, 17 October 2018, Exhibit 2, Agreed Book of Materials, 100; Statement of Sharon Haast, [31], Exhibit 2, Agreed Book of Materials, 105.
Mental state prior to offence
19.In or around 2013, the complainant observed significant changes in the accused's behaviour, coinciding with a decline in the physical health of the accused and his mother.[26] In particular, the accused: (a) appeared unable to cope with stress; (b) suffered from anxiety; and (c) rejected certain work.
[26] Statement of Mark Pember, 17 October 2018, [12] ‑ [14], Exhibit 2, Agreed Book of Materials, 5.
20.Further, over a period of about two years, starting in 2016, the complainant noticed the accused became 'very private' and 'barely want[ed] to talk'.[27]
[27] Statement of Mark Pember, 17 October 2018, [25], Exhibit 2, Agreed Book of Materials, 7.
21.On 21 May 2018 the accused consulted Dr Cathy Bacon, a general practitioner. He reported a situational crisis, involving a business partner, who was allegedly stealing the company and threatening the accused.[28]
[28] Extracts from accused's medical history, Exhibit 2, Agreed Book of Materials, 127.
22.On 15 August 2018 the accused's brother died from cancer.[29]
[29] Statement of Sharon Haast, [50], Exhibit 2, Agreed Book of Materials, 107.
23.On 26 September 2018 the accused was referred to the Mirrabooka Adult Mental Health Service by Dr Bacon on an urgent basis. According to the letter of referral:[30]
[30] Letter of Referral, Dr Cathy Bacon, 26 September 2018, Exhibit 2, Agreed Book of Materials, 122.
(a)the accused was experiencing anxiety and depression following a protracted period of stress in a business he owned with two others;
(b)one of the partners 'sounds like a psychopath and is on a vendetta to harm' the accused;
(c)the accused felt 'boxed into a corner' by the other partners;
(d)he sought advice from two lawyers to resolve the issue, to no avail;
(e)the accused was desperate, not sleeping, tearful and had suicidal intent;
(f)his wife lost her job and the accused had to leave his second job;
(g)he was concerned 'he will end up with no income';
(h)and he had started taking an antidepressant known as Sertraline.
24.Although Mrs Haast was aware that her husband was taking antidepressants, the subject was never discussed in any further detail between them. Nor did Mrs Haast notice any changes in the accused's behaviour, after the medication was prescribed.[31]
[31] Statement of Sharon Haast, [36] ‑ [37], Exhibit 2, Agreed Book of Materials, 106.
25.The accused celebrated his 53rd birthday on 16 October 2018, the day before the offence. There was a gathering at his home.[32] Present for the celebration were Mrs Haast, her mother Lorraine Hegarty[33] and mother's partner Brian Lowry.[34]
[32] Statement of Sharon Haast, [56], Exhibit 2, Agreed Book of Materials, 106.
[33] Statement of Lorraine Hegarty, 22 October 2018, Exhibit 2, Agreed Book of Materials, 111.
[34] Statement of Brian Lowry, 22 October 2018, Exhibit 2, Agreed Book of Materials, 117.
26.Throughout the evening, the accused appeared to be his normal, happy self. There was no mention of any work or financial difficulties. There was nothing unusual about his behaviour.[35]
[35] Statement of Sharon Haast, [56] ‑ [69], Exhibit 2, Agreed Book of Materials, 108; Statement of Lorraine Hegarty, [44], Exhibit 2, Agreed Book of Materials, 115; Statement of Brian Lowry, [28] ‑ [39], Exhibit 2, Agreed Book of Materials, 119.
Index offence
27.On 17 October 2018, in accordance with his usual routine, the complainant arrived at work at 5:30am. The accused arrived about 15 minutes later. They greeted each other. The complainant made coffee for himself and the accused.[36]
[36] Statement of Mark Pember, 17 October 2018, [26] ‑ [29], Exhibit 2, Agreed Book of Materials, 8.
28.The complainant sat down on his work chair. He heard the accused rummaging around in a toolbox directly behind him.[37]
[37] Statement of Mark Pember, 17 October 2018, [31] ‑ [32], Exhibit 2, Agreed Book of Materials, 8.
29.From inside the toolbox, the accused retrieved a 23cm long kitchen knife.
30.A few seconds later, the accused approached the complainant from behind,[38] armed with the knife.
[38] Statement of Mark Pember, 17 October 2018, [33], Exhibit 2, Agreed Book of Materials, 9.
31.The complainant remained seated. Without warning, the accused swung his arm over the complainant's right shoulder. In a movement, described by the complainant as 'quick' and 'aggressive', the accused struck him in the chest. He felt a thump. At first, the complainant thought the accused had punched him.[39]
[39] Statement of Mark Pember, 17 October 2018, [34] ‑ [35], Exhibit 2, Agreed Book of Materials, 9.
32.The accused had, in fact, stabbed the complainant, intending to kill him.[40]
[40] Formal admissions pursuant to s 32 of the Evidence Act dated 11 November 2019, Exhibit 2, Agreed Book of Materials, 9.
33.Using a similar motion, the accused attempted to strike him a second time. To protect himself, the complainant raised his arms and crossed them over his face. He felt an impact on his forearms.[41]
[41] Statement of Mark Pember, 17 October 2018, [36] ‑ [38], Exhibit 2, Agreed Book of Materials, 10.
34.The complainant yelled out “what are you doing”. He does not recall the accused saying anything in reply.[42]
[42] Statement of Mark Pember, 17 October 2018, [39], Exhibit 2, Agreed Book of Materials, 10.
35.As the complainant went to stand, he received a laceration to the rear of his head, but is unable to recall how it was inflicted.[43]
[43] Statement of Mark Pember, 17 October 2018, [61] ‑ [62], Exhibit 2, Agreed Book of Materials, 14.
36.The complainant faced the accused, who appeared 'extremely angry but had a blank expression on his face as well'.[44]
[44] Statement of Mark Pember, 17 October 2018, [45], Exhibit 2, Agreed Book of Materials, 11.
37.The complainant was 'extremely scared and confused'.[45]
[45] Statement of Mark Pember, 17 October 2018, [44], Exhibit 2, Agreed Book of Materials, 11.
38.He saw the accused with a knife,[46] but cannot remember how he was holding it,[47] nor what type of knife he saw.[48]
[46] Statement of Mark Pember, 17 October 2018, [41], Exhibit 2, Agreed Book of Materials, 10.
[47] Statement of Mark Pember, 17 October 2018, [46], Exhibit 2, Agreed Book of Materials, 11.
[48] Statement of Mark Pember, 22 October 2018, [15] ‑ [16], Exhibit 2, Agreed Book of Materials, 17.
39.The complainant ran away because of what he described as 'the look of purpose' on the accused's face.[49] As he was running to the front door, the complainant looked over his shoulder and saw the accused chasing him.[50]
[49] Statement of Mark Pember, 22 October 2018, [16], Exhibit 2, Agreed Book of Materials, 17.
[50] Statement of Mark Pember, 17 October 2018, [47] ‑ [48], Exhibit 2, Agreed Book of Materials, 11.
40.The complainant fled the warehouse through the unlocked front glass door. After he was some distance from the door, the complainant looked back and saw the accused, but cannot remember precisely where or what the accused was doing.[51]
[51] Statement of Mark Pember, 22 October 2018, [18], Exhibit 2, Agreed Book of Materials, 17.
41.When he was about 20 metres down the driveway, the complainant noticed blood on his shirt and realised he had been stabbed.[52]
[52] Statement of Mark Pember, 17 October 2018, [51] ‑ [52], Exhibit 2, Agreed Book of Materials, 12.
What happened to the complainant
42.The complainant went to a nearby business known as 'Practical Products', situated at 51 Paramount Drive.[53]
[53] Statement of Mark Pember, 17 October 2018, [49] ‑ [50], Exhibit 2, Agreed Book of Materials, 11.
43.There, he sought assistance from an employee,[54] Thao Lam. When Mr Lam first noticed the complainant, he was holding his chest and yelling for help. Blood was running down his chest and legs.[55]
[54] Statement of Mark Pember, 17 October 2018, [53], Exhibit 2, Agreed Book of Materials, 12.
[55] Statement of Thao Lam, 19 October 2018, [3] ‑ [19], Exhibit 2, Agreed Book of Materials, 19.
44.Police arrived at about 6:00am. Among the first attending officers was Senior Constable Paul Duncan.[56] When he arrived, the complainant was on the floor, bleeding from his chest.
[56] Statement of Paul Duncan, 18 October 2018, Exhibit 2, Agreed Book of Materials, 22.
45.He reported having been stabbed by the accused with a kitchen knife. When further questioned by Duncan, the complainant said '[the accused] is paranoid, he is not right, he went into my lunch bag, took my knife and stabbed me with it, twice in the chest'.[57]
[57] Statement of Paul Duncan, [30], Exhibit 2, Agreed Book of Materials, 25.
46.At about 6:20am, the complainant was conveyed by St Johns Ambulance to Royal Perth Hospital in a stable condition.
Injuries sustained by the complainant
47.Upon examination, the following injuries were observed: (a) deep 1.5 cm stab wound in the left anterior chest wall (cardiac box); (b) deep 3 cm wound to the rear scalp; (c) superficial laceration over right distal fourth finger. There were no complications or vascular injuries. Sutures were applied to the chest laceration. The scalp laceration was stapled.[58] The injuries were photographed by police.[59]
[58] Report of Dr Amyna Jiwani, 13 November 2018, Exhibit 2, Agreed Book of Materials, 82 ‑ 83; Discharge Summary, 18 October 2018, Exhibit 2, Agreed Book of Materials, 84 ‑ 86.
[59] Bundle of images C1 ‑ C5 of the complainant at hospital, 17 October 2018, Exhibit 2, Agreed Book of Materials, 72 ‑ 76.
What happened to the accused
48.After the incident, the accused remained in the warehouse, where he self-inflicted seven stab wounds to his chest and deeply cut his wrists, in an attempt to end his own life.
49.Police attended the MBK warehouse at about 6:10am. The attending officers were Senior Constable Ralph Knight,[60] Constable Sorin Boata[61] and 1/C Constable Robyn Ferries.[62]
[60] Statement of Ralph Knight, 19 October 2018, Exhibit 2, Agreed Book of Materials, 47.
[61] Statement of Sorin Boata, 23 October 2018, Exhibit 2, Agreed Book of Materials, 38.
[62] Statement of Robyn Ferries, 18 October 2018, Exhibit 2, Agreed Book of Materials, 30.
50.The officers found the accused on the floor, conscious, laying in a pool of blood, with cuts to both wrists and multiple stab wounds to his chest.[63]
[63] Statement of Robyn Ferries, [16], [23], Exhibit 2, Agreed Book of Materials, 32; Statement of Sorin Boata, [30], [33], Exhibit 2, Agreed Book of Materials, 41; Statement of Ralph Knight, [12], [19], Exhibit 2, Agreed Book of Materials, 48.
51.Next to him on the ground, there was a serrated knife with a black handle.[64]
[64] Statement of Robyn Ferries, [17], Exhibit 2, Agreed Book of Materials, 32; Statement of Sorin Boata, [31], Exhibit 2, Agreed Book of Materials, 41; Statement of Ralph Knight, [17], Exhibit 2, Agreed Book of Materials, 48.
52.The knife was later photographed by forensic officers.[65]
[65] Bundle of images B1 ‑ B7, 9 November 2018, Exhibit 2, Agreed Book of Materials, 65 ‑ 71.
53.Halfway between the entrance and the accused, there was a smaller pool of blood.[66]
[66] Statement of Sorin Boata, [29], Exhibit 2, Agreed Book of Materials, 41.
54.Ferries later photographed the scene.[67]
[67] Bundle of images A1 ‑ A10 taken at 57 Paramount Drive, Wangara, 17 October 2018, Exhibit 2, Agreed Book of Materials, 55 ‑ 64.
55.Police performed first-aid. At the time, the accused was acutely distressed, repeatedly stating “just let me die” and “I have fucked everything up”.[68]
[68] Statement of Robyn Ferries, [22], [30], Exhibit 2, Agreed Book of Materials, 32; Statement of Sorin Boata, [26], [42], Exhibit 2, Agreed Book of Materials, 41; Statement of Ralph Knight, [13], Exhibit 2, Agreed Book of Materials, 13.
56.Ferries asked him to remain calm and avoid talking or moving, as they were trying to stem the bleeding. The accused insisted that she write down what he had to say. Ferries formally cautioned him. When asked whether he understood the caution, the accused paused for a short while before he stated “I had to do it, he was going to hurt my family, he's really smart, you don't know him”.[69] This was partly recorded by Ferries, contemporaneously in writing,[70] and is broadly consistent what Boata and Knight overheard.[71]
[69] Statement of Robyn Ferries, [29] ‑ [36], Exhibit 2, Agreed Book of Materials, 33.
[70] Notes made by Robyn Ferries, Exhibit 2, Agreed Book of Materials, 37.
[71] Statement of Sorin Boata, [41], Exhibit 2, Agreed Book of Materials, 42; Statement of Ralph Knight, [23], Exhibit 2, Agreed Book of Materials, 49.
57.Boata inspected the accused's mobile phone. Nothing relevant was identified.[72]
[72] Statement of Sorin Boata, [48], Exhibit 2, Agreed Book of Materials, 43.
58.Paramedics arrived and conveyed the accused to Royal Perth Hospital.
Accused's admission to hospital
59.Upon admission, the accused was lucid and capable of holding a conversation.[73] The accused remained awake, mostly looking at the ceiling and occasionally crying. At some stage, he said to Boata 'I tried to go to the doctor'.[74]
[73] Statement of Sorin Boata, [64], Exhibit 2, Agreed Book of Materials, 45.
[74] Statement of Boata, [57], [59], Exhibit 2, Agreed Book of Materials, 44.
60.Photographs were taken of the accused's injuries.[75]
[75] Bundle of images D1 ‑ D5 of the accused at hospital, 17 October 2018, Exhibit 2, Agreed Book of Materials, 77 ‑ 81.
61.At 10:05am the accused's mental state was assessed by a psychiatrist, Dr Alexandra Welborn, who recorded the following:[76]
[76] Medical notes of Dr Alexandra Welborn, 17 October 2019, Exhibit 2, Agreed Book of Materials, 128.
(a)the accused presented in a highly distressed state, accompanied by active suicidal ideation and was crying in an emotionally agonised manner;
(b)he displayed what were characterised as 'incorrigibly held persecutory delusions' about the complainant being a psychopath and a risk to him and his family;
(c)two weeks ago, the accused became certain that the complainant was going to 'put a hit on his wife and adult kids and kill them all';
(d)today, the accused felt 'he had to save his family by killing Mark and then killing himself'.
62.Dr Welborn completed a referral for an examination by a psychiatrist.[77]
[77] Referral for psychiatric examination, 17 October 2018, Exhibit 2, Agreed Book of Materials, 130.
63.A mental health assessment was conducted by Ms Michelle de Silva, Clinical Nurse Specialist, who recorded the following:[78]
[78] Ms Michelle de Silva's assessment, 17 October 2018, Exhibit 2, Agreed Book of Materials, 131.
(a)Mrs Haast reported that there was no indication to her that the accused was distressed and that the events leading to admission were a complete shock to her;
(b)Dr Bacon advised that since May 2018 the accused had reported increasing anxiety, depressive symptoms, poor sleep and heart palpations;
(c)the history provided to Dr Bacon suggested that this stemmed from ongoing traumatic workplace interactions with a bullying co-worker who the accused feared;
(d)Dr de Silva established a superficial rapport during her brief interview of the accused, who provided minimal responses and presented with a sullen affect;
(e)the accused was considered to be 'acutely at risk to self and others'; and
(f)he was deemed to have diminished capacity with a working diagnosis of psychotic depression.
64.On 23 October 2018 the accused was charged.
65.On 24 October 2018 he was transferred to the Frankland Centre.
Character of the accused
66.By all accounts, the alleged offence was shockingly out of character for the accused.[79] Kevin Vear regarded him as a personable, honest man with high integrity.[80] Mrs Haast had never known the accused to be aggressive. He did not use illicit drugs. He rarely consumed alcohol. When he did, it was typically limited to one drink.[81]
[79] Statement Sharon Haast, [69], Exhibit 2, Agreed Book of Materials, 109; Statement of Kevin Vear, [106] ‑ [107], Exhibit 2, Agreed Book of Materials, 98; Statement of Lorraine Hegarty, [11] ‑ [17], [52] ‑ [55], Exhibit 2, Agreed Book of Materials, 112; Statement of Brian Lowry, [39] ‑ [45], Exhibit 2, Agreed Book of Materials, 120.
[80] Statement of Kevin Vear, [88], [105], Exhibit 2, Agreed Book of Materials, 96.
[81] Statement of Sharon Haast, [38], [42], [44], Exhibit 2, Agreed Book of Materials, 106.
Relevant legal principles
Judge alone trial
In a trial by judge alone the judge is required to state the principles of law that have been applied in coming to a verdict.[82] The fundamental principles in any criminal trial are the presumption of innocence and that the prosecution bears the onus of proving each of the elements of the offence charged beyond a reasonable doubt. If the State does not prove each element beyond a reasonable doubt then the charge is not proven and the verdict must be one of not guilty.
[82] Criminal Procedure Act 2004 (WA), s 120(2).
To the extent that it is necessary to draw inferences as to essential facts from the evidence, it is important to consider whether there are possible alternatives consistent with innocence. It is not possible to draw an inference adverse to an accused person unless it is the only reasonable inference to be drawn. This is an aspect of the requirement that a charge must be proved beyond a reasonable doubt.
The State relied upon expert witness Dr Patchett and the defence relied upon expert witness Dr Pascu. I approach my assessment of Dr Patchett and Dr Pascu as I would for any other witness. I am not bound to accept and act upon any witness's evidence, including an expert witness's evidence. I may reject expert evidence if there is other evidence to support my findings or if I conclude that the expert's evidence is unreliable.
In Hone v The State of Western Australia[83] the Court of Appeal considered the proper approach to expert evidence which is not contradicted at trial. Both Steytler P and Miller JA stated that whilst neither a jury nor a judge sitting alone are bound to accept and act upon expert evidence, where there is no evidence or circumstance to contradict that evidence, a verdict cannot be given contrary to that evidence.[84]
[83] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138.
[84] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 [13] (Steytler P), [124] (Miller JA).
I also direct myself that it is dangerous to assess the accused's words and actions in testing the accused's capacity to control his actions or to know that he ought not to do the act that resulted in the charge by the standards of people who do not suffer from a mental illness.
Further, in assessing the evidence and reaching a verdict it is important to guard against any feelings of prejudice or sympathy. Any feelings of prejudice or sympathy must be put aside and the question of guilt is to be determined on an objective and dispassionate assessment of the evidence. I do so.
Mr Haast did not give evidence on his own behalf. It was Mr Haast's right not to do so and no adverse inference may be drawn against the accused in respect of his election not to give evidence.
Elements of the offence of attempted murder
Section 283(1)(a) of the Criminal Code provides that any person who attempts to unlawfully kill another is guilty of a crime. The elements of attempted murder are that the accused intended to kill the complainant, that the accused began to put his intention into execution by means adapted to its fulfilment, and manifested his intention by an overt act.[85]
[85] Quartermaine v The Queen (1980) 143 CLR 595, 598.
In this case Mr Haast made formal admissions that he stabbed Mr Pember and that at the time he did so, he had formed an intention to kill the complainant.
I am satisfied beyond reasonable doubt that Mr Haast took possession of a knife and then stabbed Mr Pember with that knife and thereby caused bodily injuries to Mr Pember.
Whether the act of stabbing Mr Pember with a knife constitutes attempted murder depends upon the intention of the accused at the time of inflicting the bodily injuries by stabbing Mr Pember. The accused has raised the defence of unsoundness of mind. In circumstances where that defence has been raised, it is necessary to consider whether the accused is criminally responsible for the act of stabbing Mr Pember with the knife having regard to s 27 of the Criminal Code. It is only if that question is answered adversely to the accused that the next question arises, namely what the accused's intention was at the relevant time. The issue of insanity must, therefore, be determined before the issue of intent.[86]
Legal principles applying to the insanity defence
[86] Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 [25] (Kennedy J).
Every person is presumed to be of sound mind and to have been of sound mind at any time which is in issue until the contrary is proved.[87] The accused has the burden of proving that he was not of sound mind at the time he did the act that is alleged to constitute the offence. The accused must prove that he was not of sound mind on the balance of probabilities.[88]
[87] Criminal Code (WA), s 26.
[88] R v Porter [1933] HCA 1; (1933) 55 CLR 182, 184.
Section 27 of the Criminal Code provides as follows:
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(2)A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
Accordingly, s 27 of the Criminal Code contains two bases for relieving a person of criminal responsibility where there is a mental impairment. In this trial, s 27(1) of the Criminal Code is applicable, with the relevant incapacities being that the accused did not have the capacity to control his actions or to know that he ought not to do the act.
The term mental impairment is defined by s 1(1) of the Criminal Code to mean intellectual disability, mental illness, brain damage or senility. Mental illness is defined to mean an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.[89]
[89] Criminal Code (WA), s 1(1).
Whilst what constitutes mental illness is a question of law, the issue of whether or not the facts disclose a state of mental illness at the relevant time is a question of fact.[90]
[90] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 60.
In respect of the meaning to be given to 'mental illness', I respectfully adopt the outline of the relevant legal principles stated by Jenkins J in The State of Western Australia v Herbert:[91]
[91] The State of Western Australia v Herbert [2017] WASC 101 [48] ‑ [50].
The definition of 'mental illness' reflects some of the comments made by King CJ in Radford (1985) 20 A Crim R 388, 396 about the meaning of the expression 'disease of the mind' which is used in the common law of insanity. The then Chief Justice of the Supreme Court of South Australia said:
(1)'disease of the mind' is synonymous with 'mental illness';
(2)a temporary disorder or disturbance of an otherwise healthy mind caused by external factors is not properly regarded as a disease of the mind;
(3)major mental illness or psychoses such as schizophrenia are clearly diseases of the mind as are physical disease, such as psychomotor epilepsy and arteriosclerosis, when they affect the soundness of the mental faculties;
(4)disease of the mind is to be distinguished from 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self‑control and impulsiveness'; and
(5)in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called 'defect of reason' in the M'Naughten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli'.
In R v Falconer [1990] HCA 49; (1990) 171 CLR 30, the High Court generally approved of King CJ's comments even in the context of the then Criminal Code provisions.
When Falconer was decided, the Code s 27 was differently worded. Section 27 was amended and the definition of mental impairment was inserted after Falconer was delivered. The subsequent amendments to the Code are consistent with King CJ's statement of principles in Radford, although the Code definition of 'mental impairment' is broader than that of 'disease of the mind' which was considered by King CJ. Nevertheless, acute intoxication with alcohol and for drugs is not a 'mental impairment'.
Capacity to know that one ought not to do the act
The accused contends that his mental illness deprived him of the capacity to know that he ought not to do the act which formed the offence of attempted murder. With respect to the meaning of the term 'capacity to know that he ought not to do the act', I refer to the High Court in Stapleton v The Queen:[92]
For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. See R v Davis (1881) 14 Cox CC 563, Stephen J, R v Kay (1904) 68 JP Jo 376, Stephen J. In R v Porter (1933) 55 CLR 1828 at pp 189, 190, this was expressed by Dixon J as follows:
'The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.' (footnotes omitted)
[92] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 367.
In Evans v The State of Western Australia,[93] the Court of Appeal considered the application of the common law principles to s 27 of the Criminal Code. McLure P stated that there was no suggestion that there was any material distinction between the common law test as stated by the High Court in Stapleton v The Queen and s 27 of the Criminal Code. Her Honour considered what is meant by the term 'know' in s 27 of the Criminal Code, observing that whether an act is right or wrong is determined by reference to an objective standard and the question is whether the accused had a complete incapacity to reason as to what was, by that objective standard, right or wrong.[94]
Capacity to control his actions
[93] Evans v The State of Western Australia [2010] WASCA 34.
[94] Evans v The State of Western Australia [2010] WASCA 34 [31].
The accused also contends that his mental illness deprived him of the capacity to control his actions. The proper construction of the second capacity, namely whether an accused had the capacity to control his actions, was considered by Jenkins J in The State of Western Australia v Marotta.[95] I respectfully agree with her Honour's consideration of the meaning of the second capacity. Her Honour observed:[96]
[95] The State of Western Australia v Marotta [2018] WASC 329.
[96] The State of Western Australia v Marotta [2018] WASC 329 [39] ‑ [45].
39.The meaning of the Code s 27 where it says that an accused is not criminally responsible for an act if at the time of doing the act the accused is in such a state of mental disease as to deprive him of capacity to control his actions was discussed in R v Falconer Mason CJ, Brennan and McHugh JJ said:
'The incapacities to which s 27 refers include the incapacity to control actions whereas the M'Naghten Rules speak only of such a defect of reason "as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong." The explanation for the inclusion of the incapacity to control actions in s 27 is that it mirrors the provisions of s 23, as Sir Samuel Griffith explained in his notes to the Draft Code, (1897), 14:
"An act to involve criminal responsibility must be voluntary, as distinguished from involuntary [s.23] - that is to say, it must be accompanied by volition. In order that an action may be accompanied by volition there must be in the first place perception, more or less accurate, of the facts, then a determination or choice of the action to be taken upon those facts, and finally the action. If the person in question is incapable from mental disorder of rightly perceiving the facts, he should be treated on the same footing as a man who in good faith misapprehends the facts [s.24]. If he is for the same cause incapable of exercising the power of determination or choice, he should be treated on the same footing as a man who does an act independently of the exercise of his will [s.23]." '
Also in Falconer Deane and Dawson JJ said:
'Where an accused's acts are alleged to be involuntary by reason of mental disease or natural mental infirmity, no distinction can be drawn between the defence of automatism - the absence of will accompanying the relevant acts of the accused - and the defence of insanity under s 27 of the Code. This is necessarily so because s 27 relieves a person of criminal responsibility for an act done in "such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions ...".
… Where the voluntariness of an accused's acts is to be determined by reference to a condition which, if it existed at all, must on the evidence have amounted to a state of mental disease or natural mental infirmity, the question whether the accused's acts were voluntary will be subsumed in the question whether the accused did in fact suffer from a state of insanity envisaged by the section such that it deprived him of the capacity to understand what he was doing or the capacity to control his actions. S 27 also applies where a person is by reason of mental disease or natural mental infirmity deprived of the capacity to know that he ought not to have acted as he did. That would seem to raise a question distinct from that of voluntariness.'
40.Their Honours equated a deprivation of the capacity to control ones actions to involuntariness pursuant to the Code s 23. Toohey J seems also to have equated involuntary action with the second limb of s 27. His Honour said:
'Of course, insanity is not confined to involuntary action; insanity may be established even if a person has acted voluntarily, hence the need for lack of "capacity to understand what he is doing" or lack of "capacity to know that he ought not to do the act or make the omission" as components in s 27.'
41.Similarly, Gaudron J in Falconer said:
'It is clear from the terms of s 27 of the Code - "such a state of mental disease or natural mental infirmity as to deprive him ... of capacity to control his actions" that the defence of insanity or unsoundness of mind encompasses involuntariness when it proceeds from a mental disease or natural mental infirmity.'
42.I conclude that the High Court has given what some authors have described as a 'very narrow sphere of operation' to the second limb of s 27. A person is deprived of the capacity to control his actions where his actions occur independently of the exercise of his will and where the person cannot exercise the power of choice to act.
43.This construction of the second limb of s 27 does not exclude those cases where a person is by their mental [illness] deprived of the capacity to control their actions in the sense that they are deprived of the capacity to refrain from doing an act or in the sense that the effect of their mental [illness] on their mind deprives them of the capacity to choose to act.
44.In the case of the effect of mental [illness] on a person's capacity to control their actions the focus will often be on the extent to which their delusions or hallucinations controlled their actions or in the words of Sir Samuel Griffith deprived them of the power of choice.
45.It will involve a consideration of the extent to which their mental [illness] compromised their ability to will their actions or to decide not to act. But it is necessary to bear in mind that the Code s 27 only applies if the accused is deprived of capacity to control actions, as opposed to something less than that such as having a significantly impaired capacity to resist an impulse or an emotion.
The psychiatric evidence
Dr Patchett
Dr Patchett provided a written report dated 22 June 2019 which was received in evidence.[97] Dr Patchett received all relevant material[98] and interviewed Mr Haast on 18 June 2019.[99]
[97] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 157 ‑ 169.
[98] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 158; ts 30 ‑ 31 (04/05/2020).
[99] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 157.
Dr Patchett gave testimony at trial.[100]
[100] ts 29 (04/05/2020).
Dr Patchett confirmed that Mr Haast has had no history of any formal contact with mental health services prior to the incident. However, on 26 September 2018, Dr Bacon, a general medical practitioner, referred Mr Haast to the Mirrabooka Community Mental Health Service 'for an urgent assessment and management.'[101] Dr Bacon's referral letter states that Mr Haast is 'not sleeping, is tearful, has suicidal intent' and is exhibiting 'anxiety and depression following a protracted period of stress in a business.'[102] That referral was not actioned.
[101] Dr Cathy Bacon's letter of referral dated 26 September 2019, Exhibit 2, Agreed Book of Materials, 122.
[102] Dr Cathy Bacon's letter of referral dated 26 September 2019, Exhibit 2, Agreed Book of Materials, 122.
Dr Patchett outlines that Mr Haast described the progressive development of depression and then suicidal ideation. Mr Haast disclosed classical depressive symptoms of poor sleep, poor appetite, weight loss and the inability to make decisions.[103] Dr Patchett expressed the opinion that about a year prior to the incident Mr Haast clearly developed depression and anxiety in relation to negotiations around the winding up of the roof accessories firm which was his primary form of employment.[104] Dr Patchett stated that with the worsening of the depression and anxiety, Mr Haast began to focus his concerns on Mr Pember and with time he developed delusional ideation concerning Mr Pember's motives, his deceptive capacity and the perceived threat to Mr Haast and his family.[105]
[103] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 160.
[104] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 167.
[105] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 167.
Dr Patchett states that in the two months prior to the incident, Mr Haast began to think that Mr Pember would stop at nothing and firmly believed that Mr Pember intended to kill Mr Haast and his family. Mr Haast 'seriously believed at the time that Mr Pember was clever enough to do it and get away with it to avoid paying Mr Haast out.'[106]
[106] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 160.
Dr Patchett observed that Mr Haast was unable to recall what happened and what thoughts, feelings, perceptions and impulses he was experiencing on the morning of the incident.[107] Dr Patchett stated that in the absence of Mr Haast's subjective account, the contemporaneous statements made to the witnesses are the best indications of the mental state of Mr Haast when he was inflicting the bodily injuries to Mr Pember. Dr Patchett expressed the view that the statements made by Mr Haast to the police officers and Dr Welborn at Royal Perth Hospital 'are remarkably consistent and reveal the previously undisclosed delusional system.'[108]
[107] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 167.
[108] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 168.
Following the incident, Mr Haast was an inpatient at the Frankland Centre between 24 October 2018 and 13 May 2019. Mr Haast's delusional beliefs became apparent. Given the persistence of the delusional beliefs, the diagnosis made at the Frankland Centre was delusional disorder and major depression.[109] Mr Haast was given antipsychotic medication and on 10 May 2019 was discharged with the follow-up treatment to be conducted by the Mirrabooka Mental Health Clinic on a Community Treatment Order pursuant to the Mental Health Act2014 (WA).
[109] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 163.
Dr Patchett expressed the opinion that at the time of his examination of Mr Haast on 18 June 2019, the delusional beliefs were still present.[110]
[110] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 166.
The formal diagnosis made by Dr Patchett was that Mr Haast is afflicted with a Delusional Disorder and Depressive Episode with Suicidal Ideation.[111] Dr Patchett stated in his report that it was probable that Mr Haast was psychotic with paranoid delusions at the time of the assault on Mr Pember and that he had been psychotic for some time prior to the incident.[112]
[111] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 168.
[112] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 168.
Accordingly, Dr Patchett stated that Mr Haast 'was clearly suffering from a major mental illness at the time.'[113]
[113] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 168.
Dr Patchett expressed the opinion that as a consequence of the mental impairment it was more likely than not that Mr Haast was deprived of the capacity to know that he ought not to do the acts.[114] However, Mr Haast was not deprived of the capacity to understand what he was doing at the time.[115]
[114] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 169.
[115] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 168.
Dr Patchett stated that in his opinion it is difficult to determine whether Mr Haast was deprived of the capacity to control his actions without clear recollections of what Mr Haast was thinking, feeling and perceiving at the time of the incident. Dr Patchett stated that Mr Haast did not describe the type of psychotic experiences that often lead to impaired control of one's actions, such as command hallucinations or delusional passivity phenomena.[116]
[116] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 168.
Dr Patchett expressed the opinion that if a person was under the influence of command hallucinations or delusional passivity phenomena then a decision is not made, rather the person subject is responding to 'something so powerfully compelling they just have to do it.'[117] Dr Patchett was unable to find, based upon all the evidence, that Mr Haast was deprived of the capacity to control his actions.[118]
Dr Pascu
[117] ts 45 (04/05/2020).
[118] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 168.
Dr Pascu provided a written report dated 5 February 2019 which was received in evidence as part of the defence case.[119] Dr Pascu received all relevant material and on 12 December 2018 interviewed Mr Haast for three hours.[120]
[119] Report of Dr Pascu dated 5 February 2019, Exhibit 2, Agreed Book of Materials, 139 ‑ 156.
[120] Report of Dr Pascu dated 5 February 2019, Exhibit 2, Agreed Book of Materials, 140.
Dr Pascu gave oral testimony at trial.[121]
[121] ts 61 ‑ 72 (04/05/2020).
Dr Pascu stated that Mr Haast, at the time of the incident, was suffering from a major depressive illness which had likely been progressively deteriorating over the previous twelve months.[122] Dr Pascu stated that in the months leading up to the incident Mr Haast, whilst suffering worsening depression and underlying anxiety, held beliefs about Mr Pember that 'most likely became overvalued ideas and progressively these beliefs developed delusional characteristics.'[123]
[122] Report of Dr Pascu dated 5 February 2019, Exhibit 2, Agreed Book of Materials, 153; ts 62 (04/05/2020).
[123] Report of Dr Pascu dated 5 February 2019, Exhibit 2, Agreed Book of Materials, 153 ‑ 154.
Dr Pascu in her written report expressed the opinion that Mr Haast was, at the time of the incident, suffering a mental impairment, namely a major depressive illness with psychotic symptoms.[124] Dr Pascu stated that the psychotic symptoms were not associated with other psychotic symptoms (hallucinations) or evidence of thought disorder. Rather, the persecutory beliefs appear to have been secondary to the severe mood changes compounded by Mr Haast's anxiety and hypersensitivity.[125] Dr Pascu confirmed that diagnosis in her testimony.[126]
[124] Report of Dr Pascu dated 5 February 2019, Exhibit 2, Agreed Book of Materials, 154.
[125] Report of Dr Pascu dated 5 February 2019, Exhibit 2, Agreed Book of Materials, 154.
[126] ts 62 (04/05/2020).
Dr Pascu in her written report stated that due to Mr Haast's severe major depressive illness with persecutory delusions relating to the victim becoming a threat to him and his family, further compounded by the underlying anxiety, Mr Haast's capacity to control his actions was significantly impaired. Dr Pascu expressed the opinion in her written report that 'it is likely that Mr Haast might have been deprived of this capacity at the time of the incident given that his actions were based on the delusions of persecution and the perceived threat towards him and towards his family.'[127]
[127] Report of Dr Pascu dated 5 February 2019, Exhibit 2, Agreed Book of Materials, 155.
During her testimony, Dr Pascu maintained the opinion that was expressed in her written report that Mr Haast was deprived of the capacity to control his actions at the time of the incident.[128] Dr Pascu expressed the opinion that the combination of the level of emotional intensity being experienced by Mr Haast and the worsening delusions of persecution contributed to Mr Haast being deprived of the capacity to control his actions.[129]
[128] ts 66 ‑ 67, 71 (04/05/2020).
[129] ts 69 (04/05/2020).
Dr Pascu, in her written report, expressed the opinion that Mr Haast was not deprived of the capacity to know what he was doing or the capacity to know that he ought not to do the act.[130]
[130]Report of Dr Pascu dated 5 February 2019, Exhibit 2, Agreed Book of Materials, 155.
During her testimony Dr Pascu clarified her opinion.[131] Dr Pascu stated that after further considering all relevant material that formed the basis of her written report and now having been afforded the opportunity to consider Dr Patchett's report, her revised opinion was that Mr Haast was also deprived of the capacity to know that he ought not to do the act.[132]
[131] ts 61 ‑ 72 (04/05/2020).
[132] ts 63, 65, 66 (04/05/2020).
Assessment and findings
In this case the State does not submit that I should make any findings contrary to the expert evidence of Dr Patchett and Dr Pascu. There is no evidence or circumstances that contradict the expert evidence.
I am satisfied on the balance of probabilities that Mr Haast was suffering from a mental impairment at the time of the incident. That mental impairment was Delusional Disorder. I accept the formal diagnosis that at time of the incident Mr Haast was suffering from Delusional Disorder and Depressive Episode with Suicidal Ideation.
I now turn to the question of whether Mr Haast has proven on the balance of probabilities that he lacked one or more of the three capacities in s 27(1) of the Criminal Code.
After carefully considering the entirety of the evidence, I am satisfied on the balance of probabilities that Mr Haast's state of mental impairment deprived him of the capacity to know that he ought not to do the act. Both Dr Pascu and Dr Patchett expressed the opinion that it was more likely than not that Mr Haast was deprived of the capacity to know that he ought not to do the act.
I am not satisfied that it was more likely than not that Mr Haast was deprived of the capacity to control his actions at the time of the incident. There is a diversity in the opinions of Dr Patchett and Dr Pascu in relation to this capacity. I prefer the reasoning of Dr Patchett that Mr Haast did not describe the kinds of psychotic experiences that ordinarily lead to impaired control of a person's actions such as command hallucinations or delusional passivity phenomena.[133]
[133] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 168; ts 44 (04/05/2020).
Further, Dr Patchett observed that it is difficult to determine if Mr Haast was deprived of the capacity to control his actions at the relevant time without clear recollections of what he was thinking, feeling and perceiving.[134]
[134] Report of Dr Patchett dated 22 June 2019, Exhibit 2, Agreed Book of Materials, 168.
In addition, Mr Haast stated to Dr Pascu in the interview that the act of stabbing Mr Pember was something 'I just decided to do it in that moment'.[135] Dr Patchett expressed the opinion that if a person was under the influence of command hallucinations or delusional passivity phenomena then a decision is not made, rather the person subject is responding to 'something so powerfully compelling they just have to do it.'[136]
[135] Report of Dr Pascu dated 5 February 2019, Exhibit 2, Agreed Book of Materials, 145; ts 45 (04/05/2020).
[136] ts 45 (04/05/2020).
Conclusion
I am satisfied on the balance of probabilities that at the time Mr Haast did the act of stabbing Mr Pember with the knife and thereby causing bodily injuries, he was in a state of mental impairment namely Delusional Disorder. As a consequence of being in that state of mental impairment, Mr Haast was deprived of the capacity to know that he ought not do the act of stabbing Mr Pember with the knife. Therefore, the requirements of s 27 of the Criminal Code have been satisfied. Mr Haast is not criminally responsible for his actions by reason of unsoundness of mind.
Accordingly, I find the accused not guilty of the count of attempted murder on the indictment on account of unsoundness of mind. Therefore, the accused will be the subject of a custody order pursuant to s 21 of the Criminal Law (Mentally Impaired Accused) Act.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Research Orderly to the Honourable Justice McGrath15 MAY 2020
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