The State of Western Australia v Hone

[2007] WASC 64

STATE OF WESTERN AUSTRALIA -v- HONE [2007] WASC 64

Link to Appeal : [2007] WASCA 283 [2007] WASCA 283

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 64
Published:	19/03/2007
Case No:	INS:135/2005	Heard:	19-23 FEBRUARY, 26 FEBRUARY - 3 MARCH 2007
Coram:	MURRAY J	Delivered:	2/03/07
No of pages:	51	Judgment Part:	1 of 1
Result:	Accused convicted of wilful murder
Category:	B
PDF Version

Parties:	STATE OF WESTERN AUSTRALIA LEVI WILLIAM  HONE
Catchwords:	Criminal law and procedure Trial by judge alone for wilful murder No matter of general principle
Legislation:	Nil
Case References:	Edwards v The Queen (1993) 178 CLR 193 Garrett v The Queen [1999] WASCA 169 Hawkins v The Queen (1994) 179 CLR 500 Kamleh v R (2005) 213 ALR 97 R v Porter (1933) 55 CLR 182 R v Schafferius [1977] Qd R 213 Shepherd v The Queen (1990) 170 CLR 573 T (a Child) v The Queen (1998) 20 WAR 130 Ward v The Queen (2000) 23 WAR 254 Willis v The Queen (2001) 25 WAR 217

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : STATE OF WESTERN AUSTRALIA -v- HONE [2007] WASC 64 CORAM : MURRAY J HEARD : 19-23 FEBRUARY, 26 FEBRUARY - 3 MARCH 2007 DELIVERED : 3 MARCH 2007 PUBLISHED : 20 MARCH 2007 FILE NO/S : INS 135 of 2005 BETWEEN : STATE OF WESTERN AUSTRALIA

State

AND

LEVI WILLIAM HONE
Accused

Catchwords:

Criminal law and procedure - Trial by judge alone for wilful murder - No matter of general principle

Legislation:

Nil

Result:

Accused convicted of wilful murder

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Category: B

Representation:

Counsel:

State : Mr B Fiannaca SC & Mr C G Astill
Accused : Ms G A Archer & Ms A M E Horrigan

Solicitors:

State : State Director of Public Prosecutions
Accused : Andree Horrigan

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

Edwards v The Queen (1993) 178 CLR 193
Garrett v The Queen [1999] WASCA 169
Hawkins v The Queen (1994) 179 CLR 500
Kamleh v The Queen (2005) 213 ALR 97
R v Porter (1933) 55 CLR 182
R v Schafferius [1977] Qd R 213
Shepherd v The Queen (1990) 170 CLR 573
T (a Child) v The Queen (1998) 20 WAR 130
Ward v The Queen (2000) 23 WAR 254
Willis v The Queen (2001) 25 WAR 217


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1 MURRAY J: This is an indictment, amended at trial, which charges the accused with the wilful murder of his mother, Donna Leigh Hone, and, in the alternative, with the murder of Ms Hone. The accused is further charged with the wilful murder of his four-year-old sister, Lileigh Margaret O'Doherty, and again, in the alternative, with her murder. By reason of the provisions of the Criminal Code (WA), s 279, the relevant alternative conviction open on the counts of murder is the offence of manslaughter under the Code, s 280. As pleaded therefore, the indictment provides for three verdicts of conviction in relation to each of the deceased persons, verdicts of wilful murder, murder or manslaughter.

The plea of not guilty by reason of insanity

2 After some preliminary argument to which I need not refer here, the accused, when arraigned, pleaded not guilty: Criminal Procedure Act 2004 (WA), s 126(1)(e) ("CPA"). He also pleaded not guilty on account of unsoundness of mind under the Code s 27: CPA, s 126(1)(d). By CPA, s 126(4), those pleas could be made together, but it was necessary, in relation to the plea of not guilty on account of unsoundness of mind, to have regard to the terms of CPA s 93(1), which provides that where such a plea is made and the Judge is satisfied -

"(a) that the only fact in issue between the accused and the State is whether, under the Criminal Code, s 27, the accused is not criminally responsible for an act or omission on account of unsoundness of mind;

(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 may determine the plea "on any evidence and in any manner the Judge thinks just" and may find the accused not guilty on account of unsoundness of mind. Of course, the Judge may not be prepared to make that finding, in which case the trial of the general issues raised by the plea of not guilty would proceed.

3 The section contemplates that the special plea of not guilty on account of unsoundness of mind may be made with the plea of not guilty, at the commencement of the trial or during the trial. Section 93(1)(g) provides that if the section is operated and the accused is found by the Judge to be not guilty on account of unsoundness of mind, any jury sworn to give a verdict on the charge is to be discharged. So it is in the
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contemplation of the legislation that the preconditions for the operation of the section may emerge during the course of the trial.

4 In this case, the matter was attended by the additional unusual circumstance that there had been an election (upon what grounds matters not) for trial by Judge alone: CPA, s 118, and by s 118(9), such an order having been made, it could not be cancelled once it was known that I was to be the trial Judge.

5 In the consideration of s 93, and having regard to the general plea of not guilty entered to each of the counts on the indictment, it soon emerged that, in truth, this was not a case where the only fact in issue between the accused and the State was whether the accused was not criminally responsible by the operation of s 27 of the Code. There was no admission of fact, under the Evidence Act 1906 (WA), s 32, that the accused unlawfully killed either or both of the deceased persons, and that he did so with any (or no) particular intent, accepted by the prosecution. All of those matters were, of course, put in issue by the general plea and there was nothing to show that those issues were not, in fact, joined between the prosecution and the defence. On that ground alone, having regard to CPA, s 93(1)(a), the section could not come into effect.

6 However, in addition, it emerged in argument that the State proposed to contest the question of unsoundness of mind relieving the accused of criminal responsibility under the Code, s 27, upon the ground that the defence could not establish, on the balance of probabilities, that the accused, whether or not mentally ill, was, at the relevant time, deprived of any of the capacities by which, under s 27, the accused's criminal responsibility for either of the homicides, was to be judged. Much of the evidence bearing upon that issue, and concerning the personality of the accused and his relationship with his mother, would also bear upon the question whether, if the accused killed either or both of the deceased persons unlawfully, he did so with any specific intent. Again, it appeared, the relationship between the accused and his mother, and his personality, would be relevant to the resolution of those questions. It therefore seemed that there would be very considerable overlap in the evidence which bore upon the question of unsoundness of mind affecting criminal responsibility and, if that was not found, the resolution of the issues raised by the general plea of not guilty.

7 In those circumstances there seemed to me to be little advantage in dealing separately with the question of criminal responsibility on account of unsoundness of mind. Nor, I thought, would it be in the interests of

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justice to do so within the framework of s 93(1)(d) by relaxing the rules of evidence and the manner in which the question of unsoundness of mind and its possible effect on criminal responsibility was to be determined. I ruled that I would not apply s 93, and the trial has proceeded as a trial by Judge alone in the ordinary way, applying the same principles of law and procedure as would be applied in a trial before a jury: CPA, s 119(1) and (3), which requires me to direct myself, effectively as I would a jury.

8 In addition, s 120(1) speaks of my finding or verdict as if a jury. Separately, s 120(2) provides.

"The judgment of the judge in a trial by judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied."

This is, of course, my judgment in the matter, published separately from the verdict, which I have already returned, that the accused is not relieved of criminal responsibility by the operation of s 27 of the Code, and that, in the case of the killing of each of the deceased persons, the accused was to be convicted of wilful murder.

The law generally

9 I turn firstly to matters of law. As to the offences charged in the indictment, the accused may not be convicted of any of them unless his guilt is established beyond reasonable doubt. Until such time there is a presumption of innocence available to him, which the prosecution bears the onus of removing by establishing guilt beyond reasonable doubt. That burden never shifts.

10 The elements of the offence of wilful murder are, firstly, that there must be a killing. The Code, s 270, provides:

"Any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person."

There is, in respect of both deceased persons, no question but that the accused killed them. He admits as much, and all the evidence is to that effect.

11 The killing must be unlawful. By the Code, s 268:

"It is unlawful to kill any person unless such killing is authorised or justified or excused by law."

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It is sufficient in this regard to say that in respect of neither of the deceased persons is there, in the evidence, any suggestion of any authorisation, justification or excuse for their killing. Both homicides were unlawful.

12 The Code, s 277, provides that any person who unlawfully kills another is guilty of wilful murder, murder or manslaughter. By s 278, wilful murder is a killing accompanied by an intention to cause death. In respect of such a specific intention, it must be established beyond reasonable doubt that when the acts which caused death were done, the accused intended to cause death, in fact.

13 If that intention is not established, the accused may be convicted in the alternative of the crime of murder if, in the circumstances of this case, he intends to do the person killed some grievous bodily harm: Code, s 279. Again, the intention must be established beyond reasonable doubt to exist in fact and to accompany, in the sense that it exists at the time of, the doing of the acts by which death is caused. The Code, s 1(1), defines the term "grievous bodily harm" as "any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health".

14 If neither such intention is established beyond reasonable doubt, the accused, having been proved to have unlawfully killed the particular deceased person, is to be convicted of the crime of manslaughter: Code, s 280.

Insanity

15 As to the plea of not guilty on account of unsoundness of mind, this refers to the terms of the Code, s 27, which are 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 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.

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 the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of

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things had been such as he was induced by the delusions to believe to exist."

16 By s 1(1) the term "mental impairment" is defined relative to this case to mean "mental illness". That term is, by the same section, 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."

There is, in my view, upon all of the evidence, particularly that of the psychiatrist, Dr Schineanu, no doubt that the accused was, at the relevant time, suffering from mental illness. The question upon which at this point the case turned, was whether the accused was, by his mental impairment or mental illness, deprived of any relevant capacity described by s 27 so as to lead to the conclusion that he was not criminally responsible for the acts by which he unlawfully killed either or both of the deceased persons.

17 It is trite to observe that by s 26 of the Code, the accused person was presumed to be of sound mind affecting his criminal responsibility until the contrary was proved. The burden of proof therefore rested upon him. It would be discharged if, on the balance of probabilities, he established the mental impairment and that it deprived him of a relevant capacity affecting criminal responsibility within s 27, that being necessarily to be established at the time of doing the acts which unlawfully caused the deaths.

18 As to the process of decision-making, I think the law is clear. First, the Court must consider whether, on all the evidence, the prosecution has established beyond reasonable doubt, that the accused unlawfully killed either or both of the deceased persons. It is unnecessary to review the evidence specifically in relation to these questions. The evidence includes the admission of the accused person that he performed willed or deliberate acts which, on the evidence, caused the deaths of both his mother and sister. No question of the operation of the Code, s 23, arises. As I have already indicated, there is no question but that the killings by the accused were unlawful.

19 The accused's guilt of at least the manslaughter of each of the deceased persons having been established, the Court should go on to consider whether the accused has established, on the balance of probabilities, that the evidentiary presumption provided by the Code, s 26,

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is to be set aside because, in terms of s 27, the accused has proved that he had a mental illness constituting a mental impairment within the meaning of the Code which, at the time that he did the acts which caused the deaths, deprived him of one of the capacities affecting criminal responsibility set out in the first paragraph of s 27. I pause to add that although the evidence refers to various delusions, this is not a case where, if s 27 applies, it does so only because of the existence of those delusions, and the second part of s 27 need not be addressed to resolve the questions at issue in this case.

20 As to the procedural aspects, I rely upon the statements of the High Court in Hawkins v The Queen (1994) 179 CLR 500 and their application by the Court of Criminal Appeal of this State in Garrett v The Queen [1999] WASCA 169 and Ward v The Queen (2000) 23 WAR 254.

21 The psychiatric evidence raises two incapacities upon which I was required to make a judgment. It was not said that the mental impairment of the accused deprived him of capacity to understand what he was doing when he killed his mother and sister. Indeed Dr Schineanu expressed the view that he did know that he was assaulting them.

22 The opinion was given that he lacked the capacity to control his actions. There is no technical content to that expression, provided one bears firmly in mind that what is spoken of by s 27 is the "capacity" to control actions, not the exercise of that capacity. The term means what it says. The accused will not be criminally responsible if he lacks the capacity to control, in the sense of to decide whether or not to perform, the acts which caused either or both deaths.

23 The opinion was also given that at the relevant time the accused lacked the capacity to know that he ought not to do the acts by which death was caused. This is perhaps a more difficult concept, but for the purposes of this case it is sufficient to return to the classic statement of the law reported in R v Porter (1933) 55 CLR 182, a report of the directions given to a jury by Dixon J. At 189 - 190, his Honour is reported to have told the jury:

"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

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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."

24 What is meant by "incapacity" in this context was also explained by Dixon J when, at 190, his Honour said that the question 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 …"

25 In this case, as is usually the case, the evidence bearing upon the resolution of those questions was that which revealed what it was that the accused did in the process of killing his mother and sister, what he said in evidence about it and about his state of mind, and the expert psychiatric evidence. The questions of relevant incapacity did not, in my opinion, fall to be determined so much by the great body of evidence which bore upon the question of the accused's history and his behaviour leading up to the events of 14 March 2005, and the medical opinion in relation to the existence and progress of the accused's mental illness, but that which bore upon the question whether what I have already said I am satisfied was a severe mental illness at the relevant time, relieved the accused of criminal responsibility by the production of one or other or both of the incapacities relied upon in relation to the acts by which the death of either of the deceased persons was caused.

26 It is clearly insufficient merely to prove, on the balance of probabilities, that the accused was mentally impaired at the relevant time. What must be proved to the required standard is that the mental impairment produced an incapacity to control the actions by which death was caused or an incapacity to understand the wrongness of those actions according to the standards of ordinary people.

Some evidentiary rulings

27 Specifically in relation to the question of the proof of the expert opinion proffered in respect of the accused's mental impairment and its effect on his criminal responsibility, the prosecution asserted that the

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history and statements of the accused to the psychiatrist, Dr Schineanu concerning the delusions from which he was suffering at the time of the killings, the auditory hallucinations to which he was subject at that time, and generally as to his state of mind would only be admissible for its non-hearsay content. In other words, it was submitted that such evidence was only evidence of what the accused told the psychiatrist, but was not evidence of the facts of which the accused spoke.

28 It is trite to observe that the Court may not have regard to an expert opinion which depends on the existence of primary facts unless those facts are established by properly admissible evidence. Of course, even so, and particularly in the case of the insanity defence where expert medical opinion is generally received upon the existence of the very matters upon which, under s 27, the accused's criminal responsibility depends, it is for the Court to determine the existence of those matters and to accept or reject the expert opinion provided.

29 When it was put to senior counsel for the prosecution that the evidence of the history given to the medical practitioner by the accused was receivable under that exception to the hearsay rule which makes admissible declarations against interest by an accused person, because the statements made in the history provided to the doctor were to be regarded as "mixed" statements containing elements of admissions against interest as well as self-serving material, counsel responded that such evidence could not be led by the accused. The evidence would only be admissible to the extent that it was given in evidence by the prosecution.

30 There is some persuasive support in the authorities for the propositions advanced by the prosecution. The best case for the prosecution is R v Schafferius [1977] Qd R 213, but in my view the circumstances were unlike this case. Counsel relied upon the decision of the Court of Criminal Appeal in Willis v The Queen (2001) 25 WAR 217, a case dealing with the admissibility of out-of-court statements and the proposition that the admissibility of self-serving statements of that kind was secured by their association with statements against interest. A majority of the Court, Owen and Parker JJ, held in that case that because the content of a particular interview was entirely exculpatory, the trial Judge did not err in ruling it inadmissible when it was sought to be introduced by the defence by cross-examining the interviewing officer: Owen J at 238 - 239 [123], Parker J at 240 [133] - [134]. Their Honours upheld the ruling of the trial Judge because the content of the interview was considered to be entirely exculpatory, in light of the admission of evidence of another interview which had both inculpatory and exculpatory

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elements. It was no part of their Honours' reasoning that the evidence of the out-of-court statements was inadmissible because it was sought to be adduced, not by the prosecution, but by the defence.

31 In my opinion, there were clear inculpatory elements in what was said by the accused to the examining psychiatrist. Those out-of-court statements were admissible and carried with them any exculpatory material which might then be relied upon to ground the opinion offered. Of course, whether those statements were accepted as facts, and whether the opinions were accepted, was a matter for the Court.

32 A like question arose in relation to evidence which may be described as bearing upon the relationship between the accused and his mother and sister. I admitted a body of evidence, particularly of out-of-court statements made in telephone calls and otherwise by Ms Hone, about her relations with her son which, if used to establish that what she was saying was a fact, would be clearly hearsay evidence. This material was admitted for its non-hearsay character, and to the extent that I have had to have regard to that material I have been careful to use it in that way, the one exception being a statement which I judged to be part of the res gestae.

33 The admission of evidence of that kind was usefully discussed by the High Court in Kamleh v The Queen (2005) 213 ALR 97, and specifically, in relation to the admission of evidence of this kind as relationship evidence, I found it useful to refer to the decision of the Court of Criminal Appeal of NSW in R v Frawley (1993) 69 A Crim R 208, and the local decision of the Full Court in T (a Child) v The Queen (1998) 20 WAR 130. I merely advert to that matter for the purpose of making clear the basis upon which the material discussed at a directions hearing immediately prior to the trial and at the trial was admitted and the use which I have made of it.

Some historical matters

34 I will confine my reference to this evidence to that which appears to me to be most material. There was a statement tendered in evidence by the accused's father, Grant Lees. It spoke particularly of the early family history and referred to the difficulties that he had in maintaining contact with the accused during the years after he and Ms Hone separated in 1985. He speaks of the period when the accused came over to live with him in Queensland and of noticing that the accused was obviously smoking cannabis at this time. Eventually the accused returned to WA. From this time, Lees said he made it clear to the accused that whatever difficulties

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there might be from Ms Hone's end, he always wanted to have contact with his son. He refers to arguments between mother and son and he thought that the drugs made the accused self-centred and selfish. He refers to a trip that Georgia Carvolth and the accused's son Bailey took to Queensland in early 2005, and to sending a gift of shorts for the accused, including those he wore on 14 March 2005.

35 Other evidence of this kind was given by the accused's stepfather David Hone, his brother Nathan's father. He also, after separating from Ms Hone, kept in touch with both boys, the accused and Nathan, but there was nothing of particular materiality in his evidence.

36 Finally in relation to this category of witness, I refer to Mr Gary Scott. He and Ms Hone had been friendly since early in 2002, and their relationship was close, they were engaged to be married, since early in 2003. Scott therefore had a good opportunity to observe the relationship between the accused and his mother. Putting it very broadly, it was his impression that the accused's behaviour at times, when he lived in Margaret River with the rest of the family, injected an air of tension into the household. The accused had been described to him as an outward going, friendly and cheerful person, but he did not see this character in him. Indeed, at one point he became so frustrated with the accused's behaviour in relation to his mother, on an occasion when Scott judged that matters were building to an inevitable argument, that he actually assaulted the accused to try to prevent a worsening situation.

37 Latterly, however, in the months immediately preceding the killings, he thought he had seen a significant and substantial change in the accused, a considerable improvement in his behaviour and attitude. As Scott put it, he thought that for the first time he was getting to know the accused as the person described to him by family members, but whom he had not previously observed. According to Scott, Ms Hone throughout maintained her concern for the accused and endeavoured to keep him on the straight and narrow by adopting the inflexible rule that there was to be no drug use or alcohol use by the accused while he lived in her house.

38 The evidence of Georgia Carvolth, the then girlfriend of the accused, is of interest in relation to the events leading up to 14 March 2005 and the killings. Ms Carvolth met the accused in December 2002. They soon became intimate, and in January 2003 she was pregnant. The child is the accused's. He was born in September 2003. His name is Bailey. It seems it was only for a short period prior to Bailey's birth that they lived together, and shortly after that time the accused got into trouble for setting

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fire to motor cars. Ms Carvolth was living with her parents, and the accused went back to Margaret River to live with Ms Hone. Towards the end of 2003, Ms Carvolth took Bailey down to stay with them.

39 So in that haphazard way, including by telephone contact when they were apart, Ms Carvolth was in a position to form an impression of the relationship between mother and son. Her evidence was that it was generally all right. There were arguments, but never physical confrontations. It was Ms Carvolth's impression that Ms Hone was naturally worried about her son, particularly in relation to drug taking and his brushes with the law. I got the impression that she tried often to control his behaviour and correct him, despite the fact that really he was no longer a child. She tended to nag him and they had shouting matches. She would threaten to eject him from her house. The accused's evidence tended to confirm that view.

40 Ms Carvolth and the accused broke up, as I understand it, about March 2004 and there was little contact between them until after the accused was discharged from Bunbury Hospital on 6 September 2004. He had been admitted for treatment of his mental illness on 26 July 2004. Then I think they got back together again, at least briefly, over the Christmas of 2004 and the New Year of 2005. The accused seemed better. He was friendly and nicer to Ms Carvolth than he had been when she last saw him.

41 Jessica Beckley, a friend of the accused, spoke about a period during 2004 when the accused lived with her and with other young people at a property in Boodjidup Road, Margaret River. She was hopeless about time and frequently protested that she had a poor memory. Doing the best I can with her evidence, she seemed to me to be speaking about a period of some months immediately before the accused's admission to Bunbury Hospital, the circumstances of which I shall deal with in more detail when discussing the medical evidence. So Beckley was talking about a period ending in July 2004, and I accept her evidence as to the behaviour of the accused at this time.

42 He was weird, she said, and he became increasingly so as time went by. She described events such as the accused laughing to himself for no apparent reason. Suddenly he would stop laughing and just behave normally, or he would apparently burst into tears, and after he stopped that would simply get up and leave. There was an occasion when, while some occupants of the house were in the lounge room watching TV, there was a loud scream from the kitchen. It was the accused. When they

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rushed in to see what was wrong, he was naked. He stopped screaming and went off to his room. At the time he was taking valium, but Ms Beckley, of course, had no idea whether his worsening behaviour was a result of that. I think the valium may have been supplied by the witness Delia Lee, who spoke generally about the accused's drug use during this period.

43 There were times when he would take off his shirt and, for an appreciable period, breathing quickly, he would flex his arm muscles and his stomach muscles and examine himself. In my view, he was not simply showing off his physical development. Sometimes his eyes looked odd, sometimes they were strained and red, sometimes he would just stare at Ms Beckley and she was scared. As will be seen, there are distinct parallels between this account and accounts of his behaviour later and closer to the events of 14 March 2005. In any event, given the fact that her observation of the accused with his mother and little sister was somewhat limited, Ms Beckley thought the relationships were good and saw nothing untoward. Similar evidence about his relationship with his mother was given by his friend Paul Cunningham, who also said that in February 2005, when the witness offered the accused cannabis, he refused.

44 Ms Carvolth knew of his drug taking. She had seen him smoking marijuana. When they were together he did so on a practically daily basis, taking large quantities per day. Although the drug appeared to relax him, it also had adverse effects on him physically, making him tired, causing his eyes to become red. He had told her that he had used amphetamines at about the time they first commenced to live together, but she was unaware of this. He said that he found the drug a bad experience and he gave it up immediately and had not taken it since. The accused's evidence confirmed his consumption of very substantial quantities of cannabis during the first half of 2004.

45 As to his mental illness, Ms Carvolth was aware that when he was discharged from the Bunbury Hospital he was taking medication - lithium. That helped him, but again, he said it made him tired and he would often have to sleep during the afternoon. He said he became frustrated if he did not take the medication. By that she meant he was anxious and became cross over trifles.

46 There is no doubt that at times Ms Carvolth had seen the accused behaving oddly, particularly during the time when she was pregnant. He would say he was God. He would take off his shirt, extend his arms and

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say that he was controlling the wind. He said that red traffic lights did not apply to him, and he would laugh. Ms Carvolth did not take this seriously. However, he had, once in her presence and once that he told her about, tried to harm himself by cutting his arms, causing significant bleeding. They did not talk about why he had done that. The evidence of this witness, the accused and Gary Scott about this conduct did not give it great significance.

47 The evidence was that he loved his sister, Lileigh O'Doherty, and the little girl reciprocated, calling him by the pet name "Love I".

48 Towards the end of February 2005, Ms Carvolth took Bailey across to Queensland to see the accused's natural father, Grant Lees, and his partner. They were there some ten days and returned on Monday 7 March 2005. When they returned, Ms Carvolth said she told the accused that Lees had said that Ms Hone had actively prevented him from having access to the accused. I got the impression that that was news to the accused and may have upset him. Certainly, at one time, according to the evidence, he had believed that his father, Lees, did not want contact with him.

49 But when she was cross-examined Ms Carvolth said that the accused had long since been told that was not right, but that his mother had contributed to the loss of contact between him and his natural father. Ms Carvolth said she first learned of that from the accused's paternal grandmother, long before she went to Queensland, and she had told the accused, so that the confirmation by his father was not news to him. That was Lees' evidence also. Of course, it matters not whether that was true or false. The potentially significant point is that, whether by way of reminder or for the first time, this was what the accused was told in early March 2005.

50 Before dealing with specific events leading up to 14 March 2005, I should refer to the evidence of the sister of the deceased woman, Wendy Harrell. There was an attack on this witness's credibility, but nothing emerged which to my mind significantly damaged the capacity of the witness to command acceptance of the accuracy of her evidence, and I do accept it. Ms Harrell spoke generally of the relationship between the accused and his mother over the years. The terms in which she spoke were consistent generally with other witnesses. She said that Ms Hone was proud of her son, but naturally very concerned when, in later years, after he left school, he started to become affected by drug taking and ran foul of the law, on one occasion by committing a burglary in Margaret

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River and later when he burned two motor cars and was dealt with by the District Court in 2004.

51 Harrell's evidence was that Ms Hone became frustrated by her incapacity to amend the accused's behaviour. She supported him and tried to help him, but again Ms Harrell spoke in terms consistent with Ms Carvolth's evidence that there was a fair element of volatility in the relationship between mother and son. I think the evidence of the accused's friend Brett Hardy is consistent with this view, as is that of his brother Nathan.

52 The most important evidence given by Ms Harrell concerned a telephone conversation she had with both Ms Hone and the accused, the latter two people apparently being in Margaret River. This was either just before or just after Christmas 2004, presumably just before the accused came up to Perth to be with Ms Carvolth, and so perhaps three months or a little longer before the killings. The detail of this evidence appears at T304-306, and under cross-examination at T310-312. I accept this evidence of an angry exchange between mother and son, during which the accused certainly threatened to kill his mother, telling her to shut her mouth, she was always talking on the phone. He was obviously very angry, and I think from Ms Harrell's evidence, Ms Hone was angry also. When Ms Harrell intervened with the accused, siding with his mother, whether or not he specifically used the word "kill" when he spoke to her, he certainly threatened her, saying he wasn't afraid of her and she should watch her back as well. Accepting this evidence, as I do, I do not accept the accused's denials that this conversation occurred.

53 The incident is graphically demonstrative of the volatile nature of the relationship between the accused and his mother. It does not, I think, help to establish that over the months in 2005 leading up to the killings he harboured a growing determination to kill her. There is evidence also from Ms Harrell of her conversation with Ms Hone a couple of days before her death, when Ms Hone was concerned to establish the accused's whereabouts because of inquiries for him by his employer in Margaret River. It seems clear to me that the relationship had not, at least from her side, broken down or assumed any added dimension of hostility at that time.

54 Ms Carvolth said that she told the accused what Grant Lees had said about the part his mother played in keeping him and his natural father apart on about Wednesday 9 March 2005. She said that this was the day

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upon which the accused came by bus from Margaret River, as the accused confirmed.

55 That night, the accused, Ms Carvolth and two friends of the accused, Jesse Copeman and Correna Allen, went out to the White Sands Hotel in Scarborough. They were simply drinking and having a social evening, but the accused started an argument with Carvolth which broke up the evening. The argument continued when they went home. Carvolth punched the accused and he left with his friends. It is not clear to me why the argument started or what it was about. It would be speculative for me to suppose that the accused was cross because he was told or reminded of the role his mother played in keeping him apart from his natural father.

56 All four people involved, Carvolth, Allen, Copeman and the accused gave evidence in one form or another about the events of this period. There were minor variations in their accounts, but no material differences. Copeman had known the accused and Carvolth for some considerable period of time. His statement provides evidence about the accused's substantial drug use, particularly cannabis. He gives evidence of early oddities in the accused's statements. He used to say that he was king of Scarborough and the world and so he could take anything he wanted because it was his. Copeman thought that the accused's state of mind was deteriorating progressively after Bailey was born. It seems that at times during parts of 2003 and 2004, this witness and the accused were close. For a time they lived together.

57 Where the accused and Copeman gave evidence about common events there was one area of disagreement which was puzzling. Copeman said that in the summer of 2004 they used to amuse themselves by streaking performances at local cricket games. They would be chased, but they had an escape route and they were never caught. The accused, in his evidence, flatly denied that any such thing occurred and I was unable to say where the truth lay. It does not seem to be the sort of thing that Copeman would lie about or that the accused would falsely deny. I have not accepted the accused's evidence in respect of some matters upon which I have and will comment in the course of these reasons but in the end this disagreement between Copeman and the accused did not assist me to a wider view that the accused should be regarded as a generally unreliable witness.

58 The argument between Carvolth and the accused continued between the two, remotely over their mobile phones it would appear, on Thursday 10 March. The records of text messages on the accused's phone shows

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that he sent her some quite dreadful messages. Ms Hone rang Ms Carvolth that day, looking for the accused because his employer, the Xanadu Winery Restaurant outside Margaret River, wanted to contact him because they had work for him. On the Thursday night Carvolth went shopping in the Karrinyup Shopping Centre and saw the accused and his friends there. She told him that Ms Hone had been trying to get in touch with him, but nothing more occurred. Allen's evidence was that the accused spoke amicably by phone with his mother that night.

59 On Friday 11 March the accused rang Carvolth. She picked him up at the Karrinyup Shopping Centre and they went back to her unit. He was distressed. He apologised for his behaviour on the Wednesday and Thursday. He told her he had a dogger and rigger course arranged which might lead to work in the mining industry. (It had been organised and paid for by Gary Scott.) The accused was enthusiastic about that. Ms Carvolth was encouraged. In the afternoon they went down to a nearby park with Bailey to feed the ducks. The accused's behaviour there was strangely detached, as it had been at the unit earlier. For example, he would be seen staring out the window. It took him some time to give an answer to her questions. She asked him about whether he was taking his medication and he said he did not have it with him. He had last taken it, he said, on Tuesday 8 March 2005. When he came up to Perth on the 9th he did not bring it with him.

60 Ms Carvolth apparently knew that the accused was planning to return to Margaret River, presumably so that he could go to work, if nothing else. He went by bus, which left about 5 pm. As she drove him to the East Perth bus station, and when there, he behaved strangely. While she drove, he stared at he and then he would laugh to himself. His behaviour frightened her. At the bus station he continued to behave strangely. He gave her a hug and clung to her for such a long time that the bus driver became agitated about the delay. Ms Carvolth said she spoke with the accused by phone at about 11 pm after he had arrived at Margaret River.

61 Her evidence was that she tried to make contact with the accused often on Saturday 13/3/05, but without success. She said, and Nathan Hone confirmed, that at one point she spoke to Nathan who said that the accused was not home. Nathan confirms that evidence. He said that he gave her that message because the accused, who was home, signalled to him that he should do so, that he did not want to speak to Ms Carvolth. The accused agrees that generally during this period he ignored he calls.

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62 Carvolth's evidence and that given by the accused persuades me that in this crucial period shortly before 14 March 2005, the accused was not taking his lithium and he ceased to do so on 8 March. The evidence of his treating psychiatrist, Dr Kemp, and of Dr Schineanu, was that the stabilising effect of the lithium evaporates quite quickly if it is not taken, (within a day or two) and indeed the evidence suggests that this is what was occurring to the accused at the time. His behaviour described by Ms Carvolth is suggestive of that fact, as is the evidence of the accused's behaviour in Margaret River.

63 The accused worked at the Xanadu Winery Restaurant on the evening of Saturday 12 March 2005. The chef and restaurant manager, Mr Booth, and his fellow worker, and the friend of his brother Nathan, Mark Yates, gave evidence which, in my view, fairly establishes that the accused was at least distracted, not his usual self, and in some respects was behaving oddly while he was at the restaurant. I do not think there is anything which would sustain a conclusion about his behaviour from Booth's evidence that he was, at one point, playing with kitchen knives, but there is other evidence of Booth about the accused's behaviour at the dishwasher, that he was not performing, that he would not look him in the eye, and that at one point he was giggling to himself without any apparent cause for amusement, to establish the proposition that he was behaving rather oddly. Yates' evidence generally confirms that, but to them the accused said that he had had a long day and he was tired. Indeed, as I have said, the previous night he travelled by bus to Margaret River and he was at least up late. Consistent, but less valuable evidence was provided by fellow workers, Ms Walley and Mr Murray.

64 There are matters of interest in the evidence of the accused's brother, Nathan Hone. There are difficulties with his evidence because I think it is clear that he was uncertain on which day or night after the accused's return to Margaret River the events that he was describing occurred. Perhaps it matters little, but I think the better view of his evidence is that most of the matters of his concern related to the events of Sunday 13 March 2005.

65 When the accused came down to Margaret River he returned to the family home. He slept on a couch in the living room. Nathan slept in the front bedroom. Ms Hone and Lileigh had their own rooms towards the rear of the unit, but they were not there for the bulk of the weekend, and as Nathan understood it, they were, as they were often, at Gary Scott's house in Prevelly. There was, as I understand it, some contact between the accused and his mother over that weekend. I think she and Lileigh came home on the Sunday afternoon and she berated her sons for not

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having kept the unit clean and for not washing the dishes. Nathan could not recall if they were eventually done, but there is evidence that they were washed, at least by or on the Monday morning. I gathered that on the Sunday Ms Hone and Lileigh left to return to Scott's house.

66 Nathan had contact with his brother on the Friday night, 11 March. It must have been late because of the timing of the trip, and I think Nathan's estimates of time generally are well out. If he was talking about the Friday night, and his recollection was accurate, he said that the accused looked rather a mess. He had hazy eyes. He stank. There was a marijuana smell about him, but when asked by his brother if he had been using that, he said he had only had a couple of beers. His eyes were red. It is difficult, I think, to say whether the accused had taken anything or not, or indeed whether he did so, despite his denials, later during the weekend. The accused gave evidence that he had last used cannabis on the night of 1 January 2005. There is no evidence to the contrary. In any event, the accused does not appear to have changed his clothing or his physical appearance over the weekend.

67 Although I am unable to find when matters occurred, or what the precise sequence of events was over the weekend, there is ample evidence from Nathan Hone, which I do accept, of the accused's odd behaviour. He would be observed simply standing staring out of the sliding doors in the dining area. He would frequently open and close the refrigerator, or he would simply stand and look into the interior of the fridge. In other words, he seemed distracted and he would have difficulty, apparently, responding when Nathan spoke to him. At one stage he was seen sitting on the kerb out the front. On another occasion he was banging on the dividing fence separating their unit from a neighbour. Nathan could not get him to talk about what was wrong. The accused said there was nothing wrong.

68 Most serious, it seems to me, is the evidence which was summarised in cross-examination and to questions by me at T276-7. Nathan said that the accused, apparently from his bed on the couch and as if his voice was muffled by a pillow or cushion, if he was not walking up and down mumbling and talking to himself, could be heard laughing in a false or sarcastic way, but then immediately screaming or shouting out, immediately followed by crying, a real sobbing, and then silence or more laughter. It seems abundantly clear to me that there was no play-acting involved in this. The accused was in a seriously disturbed condition.

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69 Before leaving the discussion of the evidence given by Nathan Hone, I would only mention that it was he who, on returning from work on Monday 14 March 2005, just after 4 pm, discovered the bodies, then no doubt deceased, of his mother and Lileigh lying on the kitchen and lounge room floor respectively. It has he who removed the plastic bags which were over their heads. It was he who immediately advised other members of his family and made an emergency call for an ambulance at about 4.30 pm.

Significant events on 14 March 2005

70 I should also mention that I accept the evidence that having left the accused at home when he went to work at about 7 am on the Monday morning, Nathan received a call from Ms Hone at about 8.44 am. She asked about the accused, if he had been acting strangely. She seemed to be worried. She said that he had grabbed a packet of cigarettes and run out of the door. That was the last contact that Nathan had with his mother.

71 Ms Hone had been seen earlier on that morning by a woman named Gail Wright in a Coles store. They had some casual conversation. Ms Wright said that Ms Hone appeared to be in a relaxed mood. A Ms Minchin saw the accused walking in Georgette Drive, wearing clothing which, from her description, was what he had been wearing generally during the weekend and which was later found at unit 2, 34 Jacaranda Crescent. Georgette Drive connects with Jacaranda Crescent, which is in a suburban area of Margaret River, south of the main township. The accused was walking in Georgette Drive towards the town, and away from Jacaranda Crescent. This, she said, was about 8.30 am. I shall deal in more detail in due course with the evidence of the accused, but this evidence fits together with his evidence that after an exchange with his mother at unit 2 he grabbed the cigarettes and left, walking into the town. His evidence was that he returned later, but nobody appears to have seen that.

72 As to times, Exh "59" is a useful record of the house phone at unit 2. When it is put together with other evidence it shows a number of telephone calls made by Ms Hone on this morning. The first of note was made just before 8.30 am. It was to Mr Scott. She was then worried about the accused's behaviour. He had just left. Scott told her that she should call "mental health" and tell them. He said she should lock the doors. She was calm but sounded concerned.

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73 She then made a number of calls to mental health agencies, all at about 8.40 am. She called the Bunbury Hospital, the Busselton Mental Health Clinic and the Margaret River Community Mental Health Service. She had no success in making useful contact, but it appears that an answering service at Busselton told her to ring back after 9 am. There is a call registered at 9.02 am, but no evidence that there was any answer. This is the last use of the house phone before a series of calls which evidently Nathan made at just before 4.10 pm.

74 Denise Lynnwas a friend of Ms Hone. She said that at about 9 am on 14 March 2005 Ms Hone called her on the phone, sounding distressed. The record in Exh "59" shows the call to have been made at 8.47 am and to have lasted for 14 minutes. When asked what was wrong she said it was the accused, who was back on drugs. She said she had rung Mental Health, as indeed she had, but she had no help there. Ms Hone said that the accused had come home and had a go at her. She had asked him to leave her house. He had responded that the house was his and she should leave. Ms Hone said that the accused had then left the house, but was waiting outside the front door.

75 Ms Lynn had not referred to this last matter in her original statement, but she remembered it in preparing for the first aborted trial of this matter in November 2006 and had advised the police accordingly. I do not think this was an invention by Ms Lynn. I think her recollection was accurate. She impressed me as a careful witness, saying no more than she believed was true. She said that Ms Hone had told her she was frightened, but was going to stand her ground. In my opinion, as will appear, this exchange is so closely connected to the killings as to be part of the res gestae and admissible to prove the content of what was said by Ms Hone shortly before she was killed.

76 34 Jacaranda Crescent, Margaret River, contains two units. The front one closest to Jacaranda Crescent is unit 1. The rear unit, unit 2, was that occupied by the Hone family; Ms Hone, her son Nathan, Lileigh O'Doherty and, from time to time, the accused.

77 The occupant of unit 1 is a Mr Bannister. Early in the morning of 14 March he saw the accused outside the front of the units. About half an hour later he heard what he described as "full on arguing" coming from unit 2. 15 or 20 minutes later, out the front of his unit, he looked up the road and saw the accused walking naked. In my view, this, in combination with other evidence, shows that the argument he heard

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occurred very shortly after Ms Hone's phone call to Ms Lynn was terminated. It was by then about 9 am.

78 Evidence was given by a Ms Chapman. It is her evidence which helps most closely to establish the time of the killings. Although the accuracy of her evidence was challenged upon the ground that she had made inconsistent statements to the police, I found her to be an impressive witness and I accept her evidence as an accurate and truthful account. She lived at 36 Jacaranda Crescent, with her two daughters and her brother. That makes her a neighbour, next door to unit 2, 34 Jacaranda Crescent. She took the children to school at about 8.45 am and returned home about 9.15 to 9.20 am.

79 From unit 2 next door she heard screaming and crying. It was loud, high-pitched, evidently a young child. I accept that she heard the child use the words, "You're terrible." A male voice responded. It was the accused. He spoke loudly, as if he was correcting the child. He said, "No, you're terrible." The child, who I accept was Lileigh, repeated, "You're terrible." The accused repeated what he had just said. The voices sounded as if they were coming from the room closest to the fence dividing 34 Jacaranda Crescent from 36. This would have been the lounge or dining room. It was in the lounge room that Lileigh O'Doherty's body was found. I am satisfied that what Ms Chapman heard was an exchange between the child and the accused just before he killed her, and therefore, as will appear, just after Ms Hone had been killed.

The events immediately after the killings

80 In any event, Ms Chapman went into the kitchen and put the kettle on while she waited for her brother to wake. They left the house at about 10 am, she said, and no sooner had they done so when, nearby, they passed the accused, walking naked, in Georgette Drive. They reported this to the police.

81 Many people saw the accused walking naked at about this time, and a number of them reported it to the police. It was universally reported that his hair appeared to be wet. His hands were either covering his privates or he was playing with himself or not touching himself at all, but just walking casually. Those who gave times specified about 9.30 am onwards. He caused quite a stir as he walked purposefully back towards Margaret River township from Jacaranda Crescent. Some shouted at him. He ignored them all.

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82 One of those who saw the accused was PC Hastie, who was on leave. He knew the accused because they both played for the same rugby union football team. Hastie said that he yelled to the accused, "Get some gear on." The accused hesitated and looked at him for a moment, but it was a blank look. There was no recognition, and the accused walked on. That seems to me to be a genuine reflection of the state of the accused at the time. The accused said in evidence that he had a vague recollection of this incident.

83 Shortly after he was seen by these witnesses, PC Stephen and Sergeant Pheasant of the Margaret River police, having been alerted by calls to the police station, went out in a marked police car and encountered the accused on the corner of Forrest Drive and Georgette Road. They stopped the car, and the accused came across to it and, although nothing had been said, he simply climbed into the rear passenger seat. The accused later described the car as a nice Commodore. He says that in his confused and deluded state at the time he thought this car would take him to the "Just Jeans store" where he would obtain clothing, and that he would then be taken to Perth International Airport where he would leave by air for America. More of that later.

84 The officers took the accused to the Margaret River hospital. There they met a nurse on duty, a Ms Hewitt. When the evidence of these three witnesses is put together, a reliable account of what occurred emerges. They arrived at about 9.45 am. The accused was provided with a hospital gown to cover his nakedness, and he was taken in to the hospital consulting room. In answer to questions about whether he knew where he was, he said he couldn't remember, that he was "on the earth", and "in this room", and "in this universe". He professed not to remember if he had family or who he was. Nurse Hewitt said that he spoke illogically and that he had a "wild-eyed expression". However, he denied auditory hallucinations. She thought that although at times he was looking at her, he appeared to be looking through her. She thought he may be having visual hallucinations, but when asked what he could see, he said there were lots of things on the wall, as there were.

85 A local doctor, Dr Pennington, attended and gave the accused a sedative injection. Apart from an injury to the right hand and a minor cut on the inside of his lower lip, he appeared to be unhurt.

86 I am prepared to place reliance upon Ms Hewitt's judgment about the genuineness of the accused's behaviour. He did not appear to her to be play-acting. Some of his answers were responsive to the questions asked,

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but some were not. She thought him to be mentally unstable and that is why she made the judgment that he ought to be admitted to hospital and receive psychiatric treatment.

87 The evidence of the police officers confirms that the accused professed not to know his name or to have any family. When he was asked if he had parents he did not answer. He was clearly not entirely out of touch with reality because he knew what time it was, that it was daytime, and matters of that kind. But his behaviour was odd. He smiled on occasions and laughed a little, without apparent cause. At one point he suddenly began to sob.

88 For the prosecution, particular reliance is placed upon evidence given by Ms Hewitt and Sergeant Pheasant. Ms Hewitt had telephoned Bunbury Hospital for advice in relation to the process of involuntary committal of the accused as a mental patient. She spoke to a nurse there. It was, in fact, Nurse Lusty. When discussing the matter with her, Ms Lusty said she thought the patient might be Levi Hone. As will appear, she thought that as a result of Hone's earlier committal to the psychiatric unit at Bunbury Hospital between July and September 2004.

89 Ms Hewitt spoke to the accused who was then lying facing away from her on a bed in the consulting room. She spoke his name, "Levi". Immediately the accused responded by lifting himself towards her and saying, "Yes." After a further exchange with Nurse Lusty, Hewitt put to the accused that he was Levi Hone of Jacaranda Crescent and he replied, "Yes." Sergeant Pheasant said the accused smiled.

90 For the prosecution it is put to me that I should regard this evidence as proof that the accused was not genuinely out of touch with his surroundings and did not genuinely have the lack of memory that he professed, a significant point so soon on 14 March after the accused had killed his mother and little sister. However, for my part, I am not so persuaded. As I have said, there is much evidence which suggests that the accused's odd behaviour at this time was genuine, and was not a construct for the purpose of laying a foundation of insanity. I see no reason to suppose that the accused might not genuinely have lacked memory at that time of who he was and what he had done, his memory as to who he was being recalled and refreshed by putting to him his name and place of residence.

91 Similarly, I was provided with evidence by Detectives Wellstead and Froude, together with the statement of PC Motu, of their dealings with

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the accused at the Bunbury Hospital psychiatric unit on the following day, 15 March. Over a period of some two hours, Detective Froude took a video record of processes of examination of the accused and the taking of samples and fingerprints from him. He was photographed by PC Motu. It was evident to me that the accused had been substantially sedated, a process which continued upon his admission to Bunbury Hospital on the previous day, following the sedation given to him by Dr Pennington in Margaret River. At times, the camera shows the accused to appear to be almost unconscious. At times when his co-operation is sought in the investigation processes, he rouses himself and follows what is occurring.

92 Again, however, when Detective Wellstead attempted to interview the accused he had his eyes closed for long periods. His speech is difficult to discern on the video. His answers are at times very odd. He repeats the propositions that he has no family, but everyone is his family; that he has no place of residence, but he lives everywhere, and matters of that kind.

93 For the prosecution it was put to me that I should conclude from this material that the accused was deliberately pursuing a construct of insanity which he commenced on the previous day. I should conclude, so it is put, that his behaviour was not genuine. That conclusion, it is said, I should reach, because there are times when the accused appears to follow what is happening and co-operate with the requests made of him. In my opinion, from this circumstance the conclusion pressed upon me does not follow. On the contrary, I was not persuaded that the accused's profession of belief in some very odd propositions was not genuine. I am unable to use this material to negate the genuineness of the proposition that the accused was adversely affected by mental illness at these times.

94 There are a couple of specific matters to which I should refer in this regard. A particular point was made about the injuries to the accused's hand, including the back of the knuckles and the wrist. It is obvious, I agree, that these injuries could not have been received in an ordinary fall, but I am unable to say that the accused lied about this because he well knew that the injuries had been received, as I think they probably were, when he struck his mother heavy blows to the face and during the fight which immediately preceded her death. His demeanour is such, as I have said, that I am unable to conclude that he was not genuine in his belief in what he said, but was in some way attempting to cover his tracks. His evidence was that he could not recall how these injuries were received.

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95 Similarly, it is put to me that I ought to conclude that his loss of memory was feigned and the odd answers were deliberately designed to give the impression of unsoundness of mind because, although he professed not to know his name and the other matters to which I have referred, he responded immediately when Nurse Hewitt called out, "Levi." For my part, I am not able to exclude the view that his loss of memory may have been genuine, but that at that point instant recognition was triggered when his name was put to him.

96 In short, although what was asserted was not that lies in the strict context ofEdwards v The Queen(1993) 178 CLR 193, were being relied upon, the argument put to me does rely on my reaching the conclusion that the accused was deliberately feigning and seeking to falsely portray himself as being in a mentally disturbed state. If I should reach that conclusion it was submitted that I ought to use that view to conclude that the accused was, in reality, not in such a mentally disturbed state and that he was dissembling because he well knew that he had just killed his mother and sister, and he wished to avoid criminal responsibility for those acts.

97 The onus of persuasion rests upon the prosecution in this regard and I cannot take the first step which grounds the argument. I ought to say that because of the importance of the conclusion urged upon me in its affect upon the criminal responsibility of the accused for the killings, I would not reach the view advanced to me by the prosecution unless I was satisfied beyond reasonable doubt, unless it was the only inference reasonably open to me, having regard to all the evidence: Shepherd v The Queen (1990) 170 CLR 573. I take that view because this is clearly a link in a chain of reasoning to guilt of one of the alternative homicides charged in the amended indictment.

Matters concerning previous court appearances

98 On 20 March 2003, in company with some juveniles, the accused went to the Margaret River Senior High School. The juveniles entered the school while the accused kept watch, and his vehicle was used as a getaway car. They broke and entered the school and stole various items of property in which the accused shared. Later, he endeavoured to sell a stereo system for cash at a pawn shop, supporting his entitlement to sell the property by an act of fraud. On 29 July 2003, he pleaded guilty in the District Court to offences of burglary and fraud. He was released on an intensive supervision order for a period of 18 months. He admitted when

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cross-examined that he knew what he was doing when he committed the offences, in which he engaged for money.

99 Three months only after this court appearance, on 30 October 2003, he committed offences of arson concerning two motor vehicles. He had been the driver of one of them, a vehicle used by a friend, when there was a collision in which the vehicle was damaged. The accused at the time had no valid motor driver's licence. He could not therefore confess to the true circumstances in which the vehicle had been damaged. To facilitate an insurance claim by his friend, the two of them set fire to and damaged the vehicle. For reasons which do not emerge clearly, a fire was set in other circumstances at the same time so as to cause damage to another vehicle. The accused said he was out of control, but he agreed that the motivation for his conduct was to facilitate an insurance fraud.

100 In respect of these matters, together with the consequent breach of the intensive supervision orders made by the District Court on 29 July 2003, the accused was to appear before the District Court on 17 November 2004. I have mentioned that his mother had been upset by behaviour of this kind, and yet she and Scott brought the accused to Perth for his court appearance in respect of which he was legally represented. They stayed overnight at the house of his grandmother, Ms Brown, before attending the court on the following day.

101 It seems that on that evening there was a discussion as to what might happen on the following day. Ms Brown, Mr Scott and the accused all gave evidence of it, but their accounts were different. Ms Brown said that the accused was unwilling to plead guilty because, as she thought he said, others involved had "got off". He suggested to her that he would use "mental health issues" to get off the case. He was nervous, but he had some confidence that this might work. Ms Brown said that she told the accused that the courts were well aware of the dishonest use of such a ploy and it would count against him. The accused, she said, "smirked". Mr Scott said, as I understood his evidence, that the advice that he and Ms Hone gave was to say that he was not fully responsible by reason of his consumption of drugs and alcohol.

102 The accused said that although he recollected such a conversation, nothing of the kind recounted to the court by his grandmother had been said. He said that he did not then know what would be said about his mental health for which, at the time, he was receiving treatment in the community under the guidance of the district mental health nurse, Nurse Skuthorp, in Margaret River, and monitored by his community corrections

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officer under the terms of the original intensive supervision orders. The accused said that he had seen his lawyer and been advised to plead guilty. This advice had been accepted and this was what he expected to do on the following day.

103 The evidence about what occurred in the court was established by tendering the transcript. The accused did plead guilty to the two charges and to the breaches of the intensive supervision orders which those convictions involved. It is evident that the sentencing Judge, Blaxell DCJ as his Honour then was, initially raised concern about the accused's mental health and sought further information. The matter was adjourned to enable the inquiries to be made. Mr Scott and Ms Hone were despatched in a frantic endeavour to organise a community corrections officer to provide the court with an oral report.

104 This was managed, and the accused was fortunate again to be released on intensive supervision orders for a period of 18 months despite the fact that he had been told, on the occasion of his first appearance in the District Court, that if he breached the intensive supervision orders he would in all likelihood be sent to gaol. In the oral report made to the court, the community corrections officer said that the accused had maintained himself drug and alcohol free. That was not in fact true because, as the accused admitted, he had been using alcohol and indeed had used it on the occasion of the offending. He readily admitted in cross-examination that he misled the court for the purpose of painting himself in the best possible light.

105 It was submitted to me by the prosecution that this history showed the accused to be a manipulative and untruthful individual, well-prepared to lie to mislead a court to his own advantage. I think the proposition put to me was that if that was my conclusion it would be a fact which, together with other evidence, might cause me to reject the proposition that the accused was indeed suffering from delusions and auditory hallucinations which might be manifestations of a mental illness in circumstances calculated to relieve him of criminal responsibility.

106 It is clear, I think, that nothing in this court history and the events concerning it speaks well of the accused and his character, but as will appear I am not, by having regard to such matters, persuaded to reject the genuineness of the accused's evidence in relation to his state at the time of the commission of the offences before the Court. Further, I should say that it is not completely clear to me that the conversation with the accused on the night before the court appearance on 17 November 2004 was as

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related by Ms Brown. Particularly is that so having regard to the legal advice which the accused had apparently received and the course of the proceedings on the following morning.

The progression of mental illness

107 The evidence, including particularly that given by the accused, referred to what in retrospect were early warning signs of the mental illness of schizophrenia becoming symptomatic in the accused. It is clear that his cannabis use became, as I have said, very heavy indeed, particularly during the period after he left school and when he went to Queensland to stay with his father, Grant Lees. It was during that period that the accused experienced what he described as a strange disconnected feeling. It did not recur for some time. It was, I think, rightly attributed to the drug use. At that time or a little later, he commenced to experiment with crystal methylamphetamine.

108 By the end of 2002 he was living with people in Perth who used cannabis and amphetamines. The episodic feeling of disconnection became more severe. He developed a paranoia that the people with whom he was living would attack and beat him up. He commenced to suffer delusional beliefs at around about that time or in early 2003 at about the time when Ms Carvolth became pregnant. His situation improved during those periods when he ceased or substantially reduced his drug use.

109 In Margaret River during 2003 his drug use worsened to the point that he could not work. It was at about this time that he became involved in the offences committed at the Margaret River school.

110 Things went from bad to worse when he moved into the house in Boodjidup Road in about April 2004. Again he was smoking cannabis every day in substantial quantities and was experimenting from time to time again with the drug called "crystal meth". The accused could not remember much of the behaviour described, particularly by Ms Beckley, but some of it he did recall and attributed to delusional beliefs that he was a special power, a chosen individual with a capacity to communicate telepathically with people. He was chosen, he thought, to take care of the world and to bring together in peace and harmony the people of all races and religions.

111 The episode which led to his admission to the Bunbury Regional Hospital on 26 July 2004 was a manifestation of this delusional system constructed in the accused's mind. He left Margaret River early one morning to walk to Perth. He was going to the International Airport

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where he was to take a plane to America, to New York. His residence, he understood, was to be at the top of the Empire State Building, from where he would perform his function of caring for the world by meditating and communicating with a higher power. It was there he would perform his role to end wars, to establish peace and good order. He walked all day and into the night, beside and sometimes on the highway. He recalled incidents where he came close to being struck by one or more motor cars. It is clear that he must have been a danger to traffic and that his behaviour was reported to police because, as he walked, he was eventually apprehended by police officers who took him to the Bunbury Hospital where he was admitted to the psychiatric unit.

112 He was attended by a consultant psychiatrist working at the hospital, Dr Kemp, and with him was the clinical nurse specialist, Ms Lusty. It will be recalled that she was the nurse at the Bunbury Hospital who was contacted by Nurse Hewitt from Margaret River, and who thought, by reason of her contact with the accused in 2004, that Nurse Hewitt's then unknown patient might be the accused.

113 I will endeavour to summarise the evidence given by Dr Kemp and Nurse Lusty when the accused was spoken to initially on 27 July 2004. The witnesses gave some detail of the nature of the delusions which were afflicting the accused at that time. The accused was hospitalised until 6 September 2004 when he was discharged. Initially he made only slow progress and the hospital record reveals that Dr Kemp understood that he was still in a deluded state on 13 August. Dr Kemp said, his cognition was intact when he was admitted. He could tell where he was and what was happening around him. There is evidence that that was the position when he was again received at the Margaret River Hospital on 14 March 2005.

114 Dr Kemp was satisfied, in July 2004, that the accused was in the grip of a psychotic episode, a manifestation of a schizo-affective disorder, probably drug-induced. In other words, Dr Kemp's opinion, which was also later that of Dr Schineanu, was that the accused in 2004 was suffering from a form of schizophrenia and had been for some time. Such a mental illness, Dr Kemp explained, might remain latent and asymptomatic until something triggers it and makes the existence of the illness manifest by the presence of psychotic symptoms, such as hallucinations of an auditory or visual kind, or both, and experiencing delusions which to the patient are very real and, to a greater or lesser extent, distort his or her perception of reality.

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115 Dr Kemp was of the view that the accused at this time was seriously ill. He required intensive treatment and medication. Although slow to respond, by the time of his discharge Dr Kemp was satisfied that he was free of psychotic symptoms and his delusions had cleared. But Dr Schineanu's evidence was that in March 2005 the accused was again suffering a further manifestation of psychotic symptoms evidencing the existence of the same disease, again made manifest by auditory and visual hallucinations and the full flowering of the delusional belief system constructed in the mind of the accused.

116 As I understood the evidence of these two witnesses, the available medical treatment cannot cure the mental illness itself. The accused will always suffer from schizophrenia which may or may not be triggered in the future by the occurrence of some external event impacting upon the accused in just the way that the distortion of his thought processes developing into full-blown psychosis was probably originally brought on by prolonged excessive drug abuse.

117 What can be treated are the symptoms. Appropriate drug treatment can remove the delusions and restore the patient to normal thought processes. That was the situation of the accused when he was discharged from Bunbury Hospital on 6 September 2004. The medications prescribed were principally intramuscular antipsychotic injections to be given fortnightly. Dr Schineanu said that it would ordinarily be expected that such medication would be required for a year or more. However, in the case of the accused, at his request, because he said the medication was making him too drowsy and was interfering with his work commitments, he was reviewed by Dr Szudej, a psychiatrist, in early November 2004 and the accused's last intramuscular injection was received on 8 November 2004, after which he was required to receive no further medication of that kind.

118 In conjunction with that medication, when released from hospital the accused was prescribed regular doses of lithium carbonate. These were capsules taken orally. Lithium is a mood stabiliser designed, as I understand it, to keep the patient on an even keel and to prevent the highs and lows of reaction to life's external stimuli which may trigger a further psychotic episode. Again, the medication can have the effect of making the patient drowsy and "flat", which was the accused's experience. He therefore sought to change the dose, which was a daily ingestion of three capsules, from two in the morning and one in evening to one in the morning and two in the evening.

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119 This was permitted and, as I have already indicated, I am satisfied that the accused, by and large, kept up the dose of this medication until 8 March. But of course, as I have already said, by that time any therapeutic effect of the antipsychotic medication would have long since completely dissipated and the effect of the lithium would be gone within a day or two after it was last taken, a result which I think is consistent with the obvious re-emergence of the accused's symptoms, certainly by 10 March and particularly over the weekend of 12 and 13 March.

120 Other evidence which to my mind confirms these conclusions was that given by the senior community mental health nurse, Ms Skuthorp, to whom the management of the accused was referred by the Bunbury Hospital psychiatric unit on his discharge. She saw him first on 8 September 2004 and was in regular contact with him, not always on the dates when, or at the times when, appointments were made. However, there were regular contacts from that time until she last saw him on 4 March.

121 She reported good progress and stable mood during this period. After the accused was granted intensive supervision orders by the District Court on 17 November 2004 it seems that Nurse Skuthorp and the accused's community corrections officer maintained contact and the accused co-operated in drug and alcohol counselling. Initially, as I understand it, that was to be group counselling. The accused attended one such session conducted by a community mental health officer, a Mr Brearly, on 1 December 2004. There were to be others, but the accused did not come, and the evidence shows that he sought and obtained an alternative procedure whereby he was to receive individual counselling, as he did on occasions from Nurse Skuthorp.

155 Although this exchange with his mother was what caused him to go down to the town, he said there was another reason. He had been waiting for a car to arrive at his home. It was to be made available to him to drive to Perth to the International Airport to board a plane which would take him to New York. Of course, the car did not arrive at Jacaranda Crescent. And so the accused's evidence was that not only did he leave and go to the town because of what his mother had done, but he thought the car would come and park outside the "Just Jeans" shop which is just across the road from "Chooks".

156 As he sat there and smoked the cigarette he thought that, as he was connected to or the embodiment of the world, when he was hurt, as he had been injured when his mother pushed him, it was as if she had hurt the earth, and that had to be made right. He said:

"I had a voice telling me that in order for this car to show up out the front of Just Jeans I should walk home and actually punch my mother and leave straight away and then when I would get back downtown the car would be waiting and this was seen as a trust with the people, that if I was - if they were to believe me that I was this chosen person, that this was part of my mission, of what I had to do was punch my mother and then leave the house, come back downtown and the car would be waiting there for me." (T884).

157 He said he walked home, expecting after he punched his mother that he would return to Just Jeans, have another cigarette, choose some clothing, get in the car and drive to Perth.

158 When he got home he went to the front door. His mother opened it to admit him. She was asking him if he was okay. He walked into the

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kitchen and she followed. "I grabbed a knife out of the drawer and we had a scuffle." He said that she repeated a number of times, "I can help you. I can help you."

159 He said that having got the knife he had her by the hair, he struck her with the knife in the stomach, they wrestled on the ground, he pushed the knife into the middle of her neck. The handle broke. He pulled the blade out. He said nothing more about the killing of Ms Hone. It is evident that if this is a genuine recollection, it is in no part necessarily wrong, but it is substantially incomplete. Dr Schineanu's evidence was that such a partial recall is not at all surprising for a person suffering from a psychotic episode of schizophrenia, as the accused was.

160 He then spoke of his sister. He said to her, "Run to Daddy Ned's house right now." The name of her natural father was Edward O'Doherty. After a little confusion he says that she ran to the front door and attempted to open it, but she could not do so. He kept telling her, "Run, Lileigh, run." He said he walked over to her and put his hands around her neck. She said, "No, Love I, no." But he strangled her until she was unconscious. Again, this may generally be an accurate account of what occurred, but it is only a partial account having regard to the evidence of which I have already spoken. The accused then said that he walked into the bathroom, had a shower, left the house and commenced to walk to the Margaret River township. To the extent that it is necessary, I have mentioned his evidence about these matters.

161 As to what occurred at the house, I should say that the accused purported to have a recollection of obtaining the second knife. He could not remember his sister scratching him on his back, he could not remember the towel that was found in the outside bin, but he accepted that he must have put it there. He could not remember obtaining the plastic bags from the position where they were kept in the kitchen and using them as I have described.

162 It is evident then that not only is his account of what occurred at best a partial recollection, but when one has regard to the objective forensic evidence it is also clear that in some respects the account the accused gives is wrong. I am unable to find that his account was deliberately falsified. It did not seem to be an account particularly designed to portray him in a better light, but it is my view that generally speaking the reliable account of what occurred is to be found by putting together the other evidence which I have discussed, rather than by analysis of the evidence of the accused.

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163 Under cross-examination, the accused elaborated upon the delusional belief that the voices required him to undergo a test. He had to demonstrate his worth to be the one chosen to save the world. He had to punch his mother (there was nothing about harming the child) to demonstrate that although that was not his inclination he would do as he was told, although, of course, on his account when he returned to the house he did not punch his mother but went straight to the kitchen drawer to get the knife.

164 He was brought back to this notion of a test and he gave what seems to me to be significant evidence about his state of mind at the time:

"And you say it was a test that you were being put to. Correct?---That's right.

How was it a test, Mr Hone?---Like I described yesterday with myself believing that, say, like the religion of Buddhist people being the Buddhist temples and Christians pray to their God as Zulus would in Africa that if there was a situation that arose and I needed to meditate on it or come to a decision on it, that they would be able to give me an order and also people of the earth has sensed something was wrong by contacting their god spiritually that would come to me, that this was seen as a test of trust if I were to listen to what people were saying.

In other words, a test to see whether you would do something that you were instructed to do even if it was something you would not ordinarily want to do. Correct?---Yes.

Why would you not ordinarily want to punch your mother?---It's something that's never really crossed my mind.

Because it was wrong. Correct?---It is, yeah.

And you knew it was wrong to do that, didn't you?---From where I sit now and looking back at it, yes.

No, from where you sat in Margaret River looking forward to it, Mr Hone, you regarded it as a test?---Yes.

Because you were being asked to do something you knew was wrong. Correct?---Yes.

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And you were willing to show that you were prepared to do something that was wrong in order to be the chosen one. Is that the case?---Correct."

165 For the defence it was put to me that I should not accept that evidence at face value as an accurate statement about the accused's state of mind at the time, but having heard the accused give that evidence and having seen him do so, I think it is clear that he did understand the context in which the questions were being asked. Specifically, he did understand that he was being asked, not what he thought now as to the rightness or wrongness of his conduct, but what he thought at the time.

166 For the defence it was put to me that if I should conclude that he was mentally ill at the time and was operating in a deluded state, I should also form the view that he was probably unable to reason with any reasonable sense and composure about the rightness or wrongness of his conduct, according to the standards of ordinary people. But in my opinion, as I have said, I should accept that the accused genuinely told the Court that he knew at the time that what he did to his mother was wrong, even though his conduct was related to his deluded belief that it was necessary for him to perform the test to demonstrate his worth to be the saviour, the chosen one, to the voices in his mind. I shall deal separately shortly with the evidence of Dr Schineanu on the point.

167 The accused in giving evidence did not go quite so far in relation to his evidence that he called out to Lileigh to run to her father's house. It was put to him that he said that because he was afraid for her. He agreed, and added that he was "very uncertain about myself" (T903). He added that he didn't feel right. He felt different. He wasn't 100 per cent. He wasn't feeling too good.

168 The accused appears not to have told anybody that he said this to Lileigh just prior to killing her, until he volunteered it when evidence. It is not a statement which is favourable to him because, if it was said, it implies that he had at that time at least come to the shocked realisation that what he had done to his mother had resulted or was in the process of resulting in her death. The statement he says he made to Lileigh, telling her to run, was not apparently overheard by Ms Chapman who, as I have already found, heard a different exchange between the accused and Lileigh, an exchange the accused did not recall occurring.

169 If he made the statement telling Lileigh to run, to my mind it implies that, knowing the child had witnessed and indeed had tried to stop the

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killing of Ms Hone, then unless it was beyond his power to do so because she had made her escape, he would have to silence her. I add that whatever may have been the position with respect to auditory hallucinations affecting Ms Hone, the accused gave no evidence to suggest that his delusion involved, in any way, harming his sister. I think the accused's evidence was a genuine recollection of something that in fact occurred coming to him as part of a process of returning recollection after initial memory loss which was discussed in some detail in the evidence of Dr Schineanu.

170 There is only one other area of the accused's evidence in relation to what happened at the house at the time when his mother and sister were killed to which I wish to refer. The accused was cross-examined for a considerable period. His account was tested thoroughly. I have not overlooked this material, although I have only commented briefly upon some aspects. The matter I wish to note is the accused's evidence about showering. He conceded at various times that he had blood on his hands and his shorts. He said he did not notice blood on his torso, but as I have already indicated, I think he must have had blood on his bare chest. In any event, he said he could not recall why he showered.

171 I think he did so to remove the blood, but it is noteworthy, I think, that he did not seek to dispose of his clothing and shoes, leaving them, in their bloodstained condition, on the floor of the bathroom. Nor did he attempt effectively to hide the towel which he had taken, wrapped around the injury to his hand, when he left the house. He said he did not dress, but left the house naked because he was going to Just Jeans to get the clothing which had been promised to him, before travelling by car to the International Airport and thence by air to America. I have already indicated that I do not think that his actions immediately after the killings ought to be regarded as an attempt to lay the foundation for an insanity plea. The thought process involved in making such a decision and commencing the deception by walking naked from the house is, in my view, too calculating to be accepted, given the view I have formed about his psychotic state at the time, perhaps best summarised by the accused's evidence in re-examination:

"Now, you were asked by Mr Fiannaca about the test that you believe that you had to do and you were asked to explain what you were thinking about that test, and I want to ask you firstly about your evidence about having a test that you had to go home and punch your mother. Okay?---Mm.

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Can you tell us, as best you can, what you were thinking at the time about that test - not what you think about it now but what you were thinking about it at the time - about that test?---I had - I saw it as a test with something else I was - that was running through my mind with being - I think I explained that I had felt that I was spiritually connected with the world and things like eating Vegemite could produce oil - Vegemite and honey - and that if a part of my body was damaged, it would damage a part of the world, and the reason people were asking me to punch my mother was because she had pushed me in the face and that that might have some impact on the world." (T1017)

The psychiatric evidence

172 The defence called the expert psychiatrist, Dr Schineanu. I accept his very considerable expertise and that his opinion was formed after the application of appropriate investigative procedures. He did not immediately accept what he was told by the accused. He tested that history against other evidence. He tested his own clinical observations against independent evidence of what may be described as the primary facts, the history provided by the accused to the extent that it was independently verified and, in the doctor's opinion, might be accepted.

173 I will endeavour to summarise very briefly the conclusions expressed in his report. Dr Schineanu referred particularly to the account of the accused that as he returned home after waiting for the car in the township, the voices "were bad", "like a bell was above me and hammering". As I understood it, Dr Schineanu thought that the voices in their commands to carry out the tests were becoming more insistent, more demanding, presenting the accused with less and less capacity to resist the instruction until by the time he reached the house his "functional psychosis" was full-blown and had reached the peak of intensity that demanded the conclusion that the accused's schizophrenia was at a point where he committed the offences "as a consequence of insane delusions and command auditory hallucinations". (Report P 9).

174 As to the application of s 27 of the Code, in his report Dr Schineanu expressed his conclusions in the following way. In the first place, he said that the accused was not deprived of the capacity to understand what he was doing. Indeed, he went further, and said that in Dr Schineanu's view the accused "knew that he physically assaulted his mother and half-sister". I too think that there is powerful evidence, to which I have referred, for

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the view that the accused knew what he was doing when he killed Ms Hone and Lileigh.

175 But Dr Schineanu expressed the opinion that the accused was deprived of the capacity to know that he ought not to do the acts by which death was caused in each case. He said that the accused:

" … was labouring under bizarre delusions and command auditory hallucinations. Therefore, Mr Hone was unable to distinguish between true and false beliefs or between relevant or irrelevant facts."

176 He went on to refer to the evidence in support of that conclusion, particularly the accused's description of the nature of the commands to which he was subjected as he returned home. In the result, Dr Schineanu said:

" … it is obvious that Mr Hone, at the time of the index offences, acted like a robot, like an automaton, obeying the instructions received from auditory hallucinations whilst he was living in his own bizarre delusional world. Due to his state of mind at that time Mr Hone was deprived of the capacity know that he ought not to do the act."

177 It can be seen, I think, from the way Dr Schineanu presents his opinion in the report, that his view was that the accused must have been deprived of the capacity to know that he ought not to do the acts by which death was caused in each case, simply because of the intensity of the commands that he was receiving and the increasing intensity of those commands peaking at the point of time when the killings were performed.

178 That this was the way in which Dr Schineanu's opinion was formed is made clear by the fact that in his report the doctor goes on to say that in his view the accused was also deprived of capacity to control his actions. He says that it was as if the accused was acting under duress because his will was overwhelmed by psychosis. He was, Dr Schineanu said, in his opinion, in a situation where the force of the hallucinations and delusions was such that he felt he had no choice to control what to do or what not to do. His only choice, in Dr Schineanu's opinion, was to do what he was told by the voices to do. The report concludes:

"Due to his emotional turmoil, it was impossible for Mr Hone, at that time, to stop and think whether what he was doing was wrong and consequently to restrain himself from doing the act.

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Therefore I believe that Mr Hone was deprived of the capacity to control his actions." (my emphasis)

179 Dr Schineanu did not depart from this view of the case in his evidence. His view is perhaps well encapsulated in his evidence-in-chief and in his answers to questions by me at T1034 - 40. My understanding of the way in which Dr Schineanu formed his opinion is as follows. He accepted, as do I, the evidence which establishes that the accused was suffering from delusional beliefs and the auditory hallucinations he reported, but Dr Schineanu's view was that it should be accepted that what he described as command hallucinations had, by the time the accused returned home, reached such a point of intensity as to overwhelm the accused so as to prevent him from having any capacity to do other than to follow the instructions. He could not, in that situation, be said to have a capacity to know that he should not perform the acts commanded because it would be wrong to do so, and he could not, in that situation, be regarded as having a capacity to control his actions.

180 It all depends on the intensity of the hallucinations overwhelming the capacity to engage in ordinary reasoning and decision-making processes. But Dr Schineanu accepts that an important way of testing whether psychosis had reached such a state was to look at what was done and make a judgment about whether what was done, independently verified, was inconsistent with the proposition that the accused's behaviour was only explicable by the view that he was acting entirely under the command or control of his psychotic state. It is to be accepted, Dr Schineanu said, that a functional psychosis such as that afflicting the accused will have fluctuations of intensity, peaks and troughs as it were, and even at the peak will not necessarily disconnect the accused entirely from the real world and from an appreciation of the significance of his conduct according to the standards of the ordinary world.

181 It is essential, in my view, to understand that Dr Schineanu's opinion in relation to the loss of the capacities he identifies flows directly from his view that the nature and growing intensity of the accused's psychotic state had reached the point, at the relevant time, that he could not make a rational decision to perform or not to perform the acts which led him to cause the deaths of Ms Hone and Lileigh. In other words, Dr Schineanu is not independently forming the view that the evidence leads to the conclusion that the accused probably lacked the capacity to control his actions, and to know that he ought not to do the acts in question, and then to conclude that such incapacities were probably caused by the accused's mental illness.

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182 He approaches it from the other direction. Having formed an opinion, which I accept, as to the nature of the mental illness, and having formed an opinion about its growing intensity, he concludes that therefore the accused could not reason between right and wrong, and because of that incapacity he could not be regarded as having a capacity to control his actions. It is here that we part company. But it is that approach which led Dr Schineanu to say in evidence that he could not accept the accused's evidence that he did, at the relevant time, know that he ought not to do the acts in question, that it was wrong to do them. Nor could he accept that the accused's evidence was reliable when he said that he knew it was wrong, according to ordinary standards of behaviour, to walk naked in the street, but he regarded this as another test which the voices were telling him he must perform (T1006).

183 Further, it was clear that Dr Schineanu had difficulty in accepting that the accused had, as he gave in evidence, told his sister to run. The doctor noted that such a thing had never been said to him, and he queried whether it was a true recall or a construction, although I think there is no evidence to suggest that that may be so. In any event, Dr Schineanu said, if the accused said that it would not affect his opinion, and the reason why it would not affect his opinion was his view that the intensity of the psychosis was such that it could not be accepted that the accused really meant what he said, noting that the accused's evidence was that he said it because he did not feel "right". A useful summary of the way in which Dr Schineanu's opinion was formed can be found in his cross-examination at T1098 - 1102, T1112 - 3 and T1161 - 4, and in re-examination at T1180 - 3.

My conclusions as to insanity

184 I was satisfied on the balance of probabilities that at the relevant time, the time of carrying out the killings, the accused was mentally impaired within the meaning of s 27 of the Code. He was mentally ill, as that term is defined. In fact, he suffered and continues to suffer from schizophrenia. He commenced to be symptomatic as a result of drug use probably as early as 2002 or 2003, but certainly upon his admission to the Bunbury Regional Hospital at the end of July 2004 the accused suffered from full-blown psychosis. It produced auditory hallucinations and a set of delusional beliefs which were not markedly different when the symptoms recurred later. He was treated and discharged.

185 It might be said that as his treatment continued in the community his mental illness was in remission, but as a result of the combination of the

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cessation of his intramuscular antipsychotic injections in November 2004, and the fact that he ceased to take the prescribed dose of lithium carbonate, which was designed to and did in fact keep his moods more stable and enabled him to handle the vicissitudes of his rather disturbed life, his symptoms soon returned shortly after 8 March 2005. By the weekend immediately preceding Monday 14 March, the accused was again in a serious psychotic state. The auditory hallucinations, some visual hallucinations and delusional beliefs of the kind that he had previously experienced were again manifest.

186 All the evidence persuades me to that conclusion and I accept the psychiatric opinion of Dr Schineanu to that effect, but I do not see evidence that immediately preceding and at the relevant time on Monday 14 March the psychotic symptoms were "peaking" or that they were generally worsening from what I accept was a severe state.

187 On the balance of probabilities, I think the accused's psychotic state was causally linked to the killings, but I am not persuaded, on balance, that they resulted in the accused being deprived of the capacity to control his actions or to know that he ought not to do the acts which resulted in the deaths of his mother and sister. Indeed, I would conclude that the forensic evidence of what he did and establishing the decisions he made to carry out the killings and in the course of those events, is good evidence that he in fact had the capacity to control his actions. He had the capacity know that he ought not to kill his mother and sister, he had the capacity to know that it was wrong to do so. Nothing in the delusional system operating upon his mind removed that capacity, as I think he himself confessed in evidence. Despite that, he purposefully went about the performance of acts, the detail of which I have discussed when discussing the forensic evidence, which caused the deaths. I was not persuaded on the balance of probabilities of the lack of any relevant capacity.

The intention to kill

188 I have said that in my view the psychosis from which the accused was suffering at the relevant time was causally linked to the deaths. Having regard to the evidence which I accept and to which I have referred in detail above, I concluded that I could come to a firm view about what occurred.

189 At the house, the accused argued with his mother. He took the cigarettes and left the house, walking to the town. His behaviour was so disturbed and disturbing that Ms Hone commenced the round of telephone calls which I have discussed, including particularly the call to her friend,

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Ms Lynn, during which, I think, the accused returned home, no doubt driven by his psychosis. Ms Hone saw him and he saw her yet again on the phone, no doubt, he thought, again discussing him and his problems. Inside the house the argument was resumed with some heat. This was overheard by the neighbour, Mr Bannister. It matters not what was said on each side, but I think it is clear that, lacking drug assistance to stabilise his mood, the accused lost his temper and attacked Ms Hone.

190 That attack was of a sustained and very violent character, initially by blows, but soon with a knife. At some stage Lileigh tried to intervene to help her mother. The accused persisted. When one knife broke he went to the drawer and obtained a second, resuming the attack on Ms Hone despite her defensive efforts and her struggles on the floor of the kitchen. She was soon rendered unconscious, and very shortly after that bled to death.

191 In the meantime one can only imagine the distress of the child. It was overheard by Ms Chapman. The accused, I find, came to the horrified realisation that he had indeed succeeded in killing his mother. He told Lileigh to run, in a desperate attempt to avoid having to deal with her as a witness to his crime. But he immediately attacked the child in the way that I have described when reviewing the evidence of Dr Cooke. Again the attack was sustained and of a violent character. He exerted pressure on the child's throat. It was a clear attempt to strangle her. Apart from manual strangulation, he exerted considerable pressure on the child's head and the region of her upper torso and throat by standing on her or stamping on her.

192 In my opinion, the evidence was overwhelming. It satisfied me beyond reasonable doubt that the accused intended to kill both his mother and his sister. The evidence upon which I rely in that regard is the forensic evidence, particularly that of the pathologist, Dr Cooke. There was no clear or sensible motive for those killings, but the accused killed his mother because in his psychotic state he lost control. He was angry and he pursued the attack until it must have been clear to him that his mother was dying or had died. He killed his sister, again without premeditation, because she had witnessed the killing, and told him that she realised that it was a bad thing for him to do, and because she would not or could not go away. The accused had to silence her, and he did so by intentionally killing her, hence the verdicts which I have returned.