The State of Western Australia v Ihalahewa
[2020] WASC 386
•26 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- IHALAHEWA [2020] WASC 386
CORAM: FIANNACA J
HEARD: 7 - 9 SEPTEMBER 2020
DELIVERED : 22 OCTOBER 2020
PUBLISHED : 26 OCTOBER 2020
FILE NO/S: INS 71 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
UPENDRA PATHMASRI IHALAHEWA
Accused
Catchwords:
Criminal law – Trial by judge alone – Murder – Insanity – Whether accused was mentally impaired – Whether accused lacked the capacity to know he ought not do the act
Legislation:
Criminal Code (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Evidence Act 1906 (WA)
Result:
Accused found not guilty on account of unsoundness of mind
Custody order made
Category: B
Representation:
Counsel:
| Prosecution | : | R F Owen |
| Accused | : | A Fedele |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Legal Aid WA |
Case(s) referred to in decision(s):
Cooley v The State of Western Australia [2005] WASCA 160
Evans v The State of Western Australia [2010] WASCA 34
Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Hall (1988) 36 A Crim R 368
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Porter (1936) 55 CLR 182
R v Porter [1933] HCA 1; (1933) 55 CLR 182
R v Radford (1985) 20 A Crim R 388
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
The State of Western Australia v Jones [2018] WASC 395
The State of Western Australia v Knock [2020] WASC 246
The State of Western Australia v Marotta [2018] WASC 329
Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254
Table of Contents
Charge and history of the proceedings
Accused's plea and formal admissions
Agreed facts and documentary evidence
Statutory requirements in relation to trials by judge alone
Principles of law applicable in this case
Issues to be determined
Evidence
Admissibility of evidence of the accused's statements other than in the EROI
Facts relevant to the alleged offence
Accused's presentation and accounts to medical staff shortly after the incident
Psychiatric evidence
Addresses
Findings
Conclusion
Orders
FIANNACA J:
Charge and history of the proceedings
Upendra Pathmasri Ihalahewa (the accused) has been charged on indictment that on 3 February 2019, at Balga, he murdered Darshika Nilmini Kudaligama Withana. It is alleged that he killed Ms Withana, his wife, by stabbing her with a large kitchen knife. He did so in the home they shared in Balga.
The prosecution case is that the accused killed Ms Withana[1] in a brutal and persistent attack. It is alleged the accused inflicted six penetrating stab wounds upon the deceased. Some of the wounds could not have been made without considerable force. The most serious wounds severed her jugular vein and entered her lung and chest cavity. It is also alleged the deceased suffered numerous cuts to her hands and fingers, consistent with being injuries suffered as she tried to defend herself. She also had a number of cuts to other parts of her body.
[1] Henceforth, as is customary, I will refer to Ms Withana as 'the deceased'. No disrespect is intended to the memory of Ms Withana or to her family by the use of that formal description.
The defence case is that the accused was in the grip of an acute psychotic episode at the time he killed his wife, and that he is not criminally responsible for the murder because he was of unsound mind.
On 9 March 2020, the accused applied for a trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA). The basis of the application was that the accused intended to plead not guilty on account of unsoundness of mind, and the only issue at trial would be whether the accused was of unsound mind at the time he killed the deceased. On 26 March 2020, Corboy J ordered that the accused be tried by judge alone.
The trial was held before me on 7 ‑ 9 September 2020.
Accused's plea and formal admissions
At the commencement of the trial, on 7 September 2020, the accused entered a plea of not guilty on account of unsoundness of mind. That plea invokes the defence under s 27 of the Criminal Code (WA), commonly referred to as the insanity defence.
The accused made formal admissions pursuant to s 32 of the Evidence Act 1906 (WA) (Evidence Act) in the following terms:
(1)Darshika Nilmini Kudaligama Withana is dead.
(2)The deceased was killed on 3 February 2019 at 15B Danehill Way in Balga.
(3)The cause of death was stab wounds to her neck and chest.
(4)[The accused] did the act(s) which caused her death.
(5)At the time of doing those act(s), [the accused] intended to cause her death.
Section 32 of the Evidence Act provides that an accused person, either personally or by his counsel or solicitor, in his presence, may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence. The formal admissions in this case were contained in a document signed by the accused and were stated aloud by his counsel during her opening address. They are sufficient proof of the facts admitted, but that does not preclude the State from relying also on other evidence that tends to prove those facts.
Agreed facts and documentary evidence
Prior to the commencement of the trial, the parties had agreed that the State's case could be put before the court by way of an Agreed Statement of Relevant Events,[2] the tender of the statements of various specified witnesses and a number of other specified materials contained in the prosecution brief (which consists of two bound volumes),[3] and the tender of an Agreed Book of Additional Materials (including electronic items).[4] By those means, the court would have before it evidence of the background of the accused, the history of the relationship between the accused and the deceased, the accused's movements on the day of the offence and various other matters relevant to the accused's state of mind leading up to the offence. In fact, much of the material would be relevant also to the accused's case.
[2] Exhibit 1.
[3] Exhibit 3.
[4] Exhibits 4A, 4B.
Accordingly, after the accused was arraigned, the prosecutor informed me that he intended to read aloud the Agreed Statement of Relevant Events by way of outlining the facts, and he would then tender the materials to be relied on in the prosecution brief and any further relevant materials. The State would then call the expert evidence on which it relied.
Counsel for the accused noted she would tender the document containing the formal admissions pursuant to s 32 of the Evidence Act[5] in an opening address and that, at the conclusion of the State's case, the defence would call the expert evidence on which the accused relied in support of the insanity defence.
[5] Exhibit 2.
Section 93 of the CPA provides that if an accused pleads not guilty to a charge on account of unsoundness of mind and the judge is satisfied that the only fact in issue is whether the accused is not criminally responsible under s 27 of the Criminal Code, the judge may decide the issue on any evidence and in any manner the judge thinks fit, if the prosecutor consents and the accused does not object to the judge doing so and if it is in the interests of justice to do so. Having regard to s 93 and the positions taken by the parties, I was satisfied that it was in the interests of justice to receive into evidence the Agreed Statement of Relevant Events, the witnesses' statements and the other specified materials (which I will list later in these reasons), and to then hear the evidence of the expert witnesses to be called by the State and the defence, for the purpose of determining whether the accused was of unsound mind in accordance with s 27 of the Criminal Code. The reports prepared by those experts were included in the documentary materials to be tendered.
The trial proceeded accordingly. The Agreed Statement of Relevant Events, the witnesses' statements and the other specified materials were received as exhibits. The State then called Dr Adam Brett, a consultant forensic psychiatrist, to give evidence.
At the conclusion of the State's case, the accused elected not to give evidence. However, the defence called Dr Victoria Pascu, also a consultant forensic psychiatrist, to give evidence.
Statutory requirements in relation to trials by judge alone
Section 120(1)(a) of the CPA provides that I may make any findings and give any verdict the jury could have made or given if the trial had been before a jury.
Section 120(2) of the CPA provides that my judgment must include the principles of law that I have applied and the findings of fact on which I have relied. It is necessary, therefore, for me to state the legal principles that I must apply in determining the charge.
Principles of law applicable in this case
Burden and standard of proof generally
The accused is presumed to be innocent of the offence charged.
The burden of proving the accused's guilt of the offence is on the State. The standard to which the State must prove the charge before the accused can be found guilty is beyond reasonable doubt. The State must prove each of the elements of the offence beyond reasonable doubt. If the State does not prove each of the elements beyond reasonable doubt, the only proper verdict is one of not guilty.
However, as will appear below, on a charge of murder, where the accused relies on the defence of unsoundness of mind, the defence comes to be considered once the State has established all of the elements of that offence other than intention. If the defence is established, the proper verdict is not guilty on account of unsoundness of mind.
The facts are largely not disputed by the accused. Where the facts are uncontroversial, it makes the fact‑finding task easier, but there remains a need for the court to be satisfied of the prosecution case beyond reasonable doubt in relation to the elements of the offence before the accused could be found guilty, or, as in this case, before it is necessary to determine the issue of unsoundness of mind. The accused does not have to prove anything in respect of the elements of the offence.
Inferences
The evidence in respect of both the events that resulted in the deceased's death and the accused's state of mind consists of admissions made by the accused and circumstantial evidence. To some extent, the finding of facts about those matters will depend on the drawing of inferences.
In determining what inference or inferences to draw from any particular aspect of the evidence, the evidence must be considered as a whole, not in isolation or piecemeal.[6]
[6] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [48] (Gummow, Hayne & Crennan JJ; Gleeson CJ agreeing at [5]).
Where it is necessary to draw inferences as to essential facts, I may draw an inference against the accused only if I am satisfied that it is the only reasonable inference available to be drawn. I must consider, therefore, whether there are any reasonable alternative inferences which would be consistent with the accused's innocence. This reflects the requirement that the State must prove each element of the charge beyond a reasonable doubt. However, to the extent that proof of the insanity defence depends on the drawing of inferences, the onus is on the accused to satisfy me the inference should be drawn on the balance of probabilities.
Expert evidence
At trial, two experts gave evidence, which was largely uncontested. Whilst neither a jury nor a judge sitting alone is bound to accept and act upon expert evidence, where there is no evidence or circumstance to contradict or cast doubt on that evidence, it would be unreasonable to reject the evidence.[7] In a case concerning a defence under s 27, where determination of the issue depends very much on the evidence of expert psychiatrists, a verdict cannot be given contrary to that evidence if there is no evidence or circumstance to contradict or cast doubt on it.[8] A factor that may be taken into account in deciding what weight to give to expert evidence is whether it incorporates assumptions not founded upon the evidence in the trial on which the expert's opinions rely.[9] More particularly, if an expert relies on factual matters contained in an account of relevant events given to him or her by the accused, the weight to be given to the expert's opinion, or some particular part of it, will depend on whether I accept those facts to have been proved.
[7] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 (Hone) [13] (Steytler P), [124] ‑ [125] (Miller JA).
[8] Hone [13] (Steytler P), [124] ‑ [125] (Miller JA).
[9] R v Hall (1988) 36 A Crim R 368, 361 (Allen J); Hone [125] (Miller JA).
In this case, where I have departed from the expert evidence, I will state why I have done so. For the most part, I have accepted the evidence of the experts. The question is what conclusions I can draw from it, having regard to the other evidence in the case.
Accused not giving evidence
The accused elected not to give evidence at the trial. Consistently with the principles in respect of the presumption of innocence and the burden and standard of proof, an accused person is under no obligation to give or adduce evidence. I draw no adverse inference against the accused in respect of his election not to give evidence.
Accused chose to speak to the police
The accused took part in an electronically recorded interview with the police. His account in that interview is evidence upon which I can make findings of fact, and it comes to be assessed in the same manner as I would assess the evidence of a witness in the trial. I have had regard to the fact that the account the accused gave to the police has not been tested by cross‑examination. I have also had regard to the accused's demeanour in answering questions, although I am mindful of the limitations of demeanour as a guide to credibility or reliability. Further, if I find that the accused was suffering from symptoms of mental illness at the time of the alleged offence and/or at the time of the police interview, and that those symptoms affected the orderliness of his thoughts and the reliability of his memory, those factors will naturally be relevant to the weight I give to his answers during the interview.
If an accused's account during a police interview is exculpatory, the general principle is that I cannot make a finding of guilt if the account gives rise to a reasonable doubt about his guilt. Even if I do not believe his account, it does not follow necessarily that the accused must be found guilty. His account would be put to one side and I would consider the balance of the evidence in the trial to determine if I am satisfied beyond reasonable doubt that the accused is guilty of the offence charged. However, in the circumstances of this case, given the formal admissions and the accused's admissions in his interview, there is a sufficient basis on which to find beyond reasonable doubt that the accused is guilty of murder if I were to reject the insanity defence. As the accused has the burden of establishing that defence, it is not a question of whether his account leaves me with a reasonable doubt about any relevant issue, but whether his account, either alone or in combination with other evidence, satisfies me on the balance of probabilities that he was of unsound mind in the relevant sense, as I discuss below.
Prejudice and sympathy
I bear in mind that I must not allow prejudice or sympathy to play any part in my determination of the charge. The case concerns the tragic loss of the life of someone who had left her family in Sri Lanka to make a life with the accused in Australia and who was entitled to trust the accused to care for her. The evidence also establishes that the accused was suffering from mental illness that caused him distress. These are matters that have relevance in the determination of the facts, but they must be assessed in a dispassionate manner.
Decision must be on the basis of the evidence
I must decide the case solely on the basis of the evidence produced in the trial, and not on any other matters.
I must not guess or speculate about matters that are not in evidence or look for theories that are not supported by the evidence.
Elements of the offence of murder
In order to prove the accused committed the offence of murder, the State must prove beyond reasonable doubt all of the following elements:
(1)the accused was the offender, being the person who did the relevant act or acts;
(2)the accused killed the deceased, in that, by his act or acts, he caused her death directly or indirectly;[10]
(3)the killing of the deceased by the accused was unlawful; and
(4)the accused intended to cause the death of the deceased, or intended to cause a bodily injury to the deceased that was, objectively, of such a nature as to endanger, or be likely to endanger, the deceased's life.
[10] Criminal Code s 270.
The accused formally admits that the deceased was killed by stab wounds to her neck and chest and that he did the acts which caused the deceased's death. The accused's admissions mean that the first two elements are not in issue.
As for the third element, a killing is unlawful unless it is authorised or justified or excused by law.[11] The accused's case is that he is not criminally responsible for the killing of the deceased (in other words, he is not liable to punishment as for an offence[12]) because he was of unsound mind, as provided for in s 27 of the Criminal Code. He does not suggest that his killing of the deceased was lawful (i.e. authorised, justified or excused) on any other basis provided for by law.
[11] Criminal Code s 268.
[12] Criminal Code s 1(1) – definition of 'criminally responsible'.
The central issue in this trial is whether the accused is not criminally responsible for killing the deceased, because he was of unsound mind, in the relevant sense, at the time he did the acts that resulted in her death. It is necessary to decide that issue before considering whether the accused had the relevant intention necessary to establish the offence of murder.[13] Only if the insanity defence under s 27 is not established will the question arise, whether the State has proved that the accused had the relevant intention.[14]
[13] Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 (Hawkins), 517; Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 (Ward) [20] (Kennedy J), [39] (Pidgeon J), [52] ‑ [56] (Wallwork J), [103] (Scott J). Wheeler J was alone in coming to the view that Hawkins did not mandate the order of consideration of the issues: [126] ‑ [146]. Pidgeon J qualified his acceptance of the proposition: [40] ‑ [42].
[14] Hawkins; Ward.
As I noted earlier, the accused formally admitted that, at the time of doing the acts which caused the deceased's death, he intended to cause her death. If the insanity defence is not established, the admission would be sufficient proof of the accused's guilt of murder. His case was not put on the basis that, in the circumstances of this case, the accused's mental illness would otherwise be relevant to the question of whether he had the capacity to form, or actually formed, an intention to kill or cause a life‑threatening injury to the deceased.[15] It may be that the accused's admission of an intention to cause the death of the deceased is relevant to my consideration of the insanity defence, if it informs the question of whether the accused's mind was disordered in the manner relevant for the purposes of s 27. However, if the insanity defence is established, there will be no occasion to make a finding in respect of the last element of the offence of murder.
Legal principles relating to s 27(1)
[15] Cf Cooley v The State of Western Australia [2005] WASCA 160 [28] ‑ [33] (Roberts‑Smith JA; Wheeler & Pullin JJA agreeing); Hawkins, 513.
I now turn to the law specifically concerning the defence of insanity.
Every person is presumed to be of sound mind, and to have been of sound mind at any time which is in issue, until the contrary is proved.[16] The accused has the burden of proving that he was not of sound mind at the time that he did the act which is alleged to constitute the charged offence. The accused must prove that he was not of sound mind on the balance of probabilities.[17]
[16] Criminal Code s 26.
[17] R v Porter [1933] HCA 1; (1933) 55 CLR 182.
Section 27 of the Criminal Code provides as follows:
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(2)A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
Accordingly, under s 27, mental impairment can either relieve a person of criminal responsibility, if it has deprived the person of one of the relevant mental capacities, or it can affect the extent of the person's criminal responsibility if the person was not deprived of any of the relevant mental capacities, but was acting in accordance with delusional beliefs caused by the mental impairment. In this case, the accused relies on s 27(1). His case is that his mental impairment deprived him of the capacity to know that he ought not to do the act which caused the deceased's death. Although it is part of that case that the accused was affected by delusions as a result of the mental impairment, it is not the accused's case that s 27(2) would operate to reduce his criminal responsibility in any respect if he was not deprived of the capacity to know that he ought not to do the act that resulted in the deceased's death. In other words, in the absence of proof that he was deprived of one of the relevant mental capacities, if the real state of things had been as he believed them to be in accordance with his delusions, there was nothing in those circumstances to relieve him of, or reduce, his criminal responsibility for his conduct.
Mental impairment
The term mental impairment is defined in s 1(1) of the Criminal Code to mean 'intellectual disability, mental illness, brain damage or senility'. 'Mental illness' is defined to mean 'an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.'[18]
[18] Criminal Code s 1(1).
What constitutes a mental illness is a matter of law, whereas whether or not the facts disclose a state of mental illness is a question of fact.[19]
[19] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 60.
In The State of Western Australia v Jones,[20] Jenkins J noted, referring to comments of King CJ in R v Radford,[21] that the definition of 'mental illness' in s 1(1) of the Criminal Code reflects the meaning of 'disease of the mind' in the common law principles concerning the defence of insanity. The terms are synonymous. As Jenkins J said, summarising the principles stated by King CJ in Radford, a temporary disorder or disturbance of an otherwise healthy mind caused by external factors is not properly regarded as a disease of the mind. However, a temporary disorder, even of short duration, that results from an underlying pathological infirmity of the mind, which can properly be termed mental illness, will come within the meaning of 'mental impairment'. Mental illness does not include 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self‑control and impulsiveness'.[22]
[20] The State of Western Australia v Jones [2018] WASC 395 (Jones) [43].
[21] R v Radford (1985) 20 A Crim R 388 (Radford), 396. As Jenkins J noted in Jones, the comments of King CJ in Radford in respect of what constitutes a 'disease of the mind' were generally approved by the High Court in the context of the provisions of the Criminal Code at that time in R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 60.
[22] Radford, 396; Jones [43].
It is not in dispute that schizophrenia and schizophrenia‑like illnesses causing psychoses are mental illnesses for the purpose of s 27 of the Criminal Code.
Capacity to know one ought not to do the act
The accused contends that, at the time he did the act or acts that resulted in the deceased's death, his mental illness deprived him of the capacity to know that he ought not to do the act or acts.
I respectfully agree with and adopt the analysis of the law and the conclusions reached by Jenkins J in The State of Western Australia v Marotta,[23] which her Honour reiterated in Jones,[24] in respect of this aspect of the insanity defence. As her Honour said, the reference to a person being deprived by mental impairment of the capacity to know that he ought not to do the act that constitutes the offence is generally considered to be equivalent to the alternative formulation under the M'Naghten rules at common law that the accused was labouring under such a defect of reason 'that he did not know that he was doing what was wrong'.[25] In fact, as appears in Stapleton,[26] the opinion in M'Naghten's case used the phrases 'act … that he ought not to do' and 'act that was wrong' synonymously. In Stapleton, the High Court did not draw a distinction between the two formulations. Similarly, in Evans v The State of Western Australia[27] the Court of Appeal proceeded on the basis that the principles in respect of the common law formulation of this aspect of the insanity defence applied when considering the issue under s 27.
[23] The State of Western Australia v Marotta [2018] WASC 329 (Marotta) [53] ‑ [56].
[24] Jones [47].
[25] See the discussion in Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 (Stapleton), 371 of the formulation of the relevant rules in the opinion of the judges to the House of Lords in M'Naghten's case.
[26] Stapleton, 372.
[27] Evans v The State of Western Australia [2010] WASCA 34 (Evans).
The starting point tends to be the jury direction given by Dixon J on a trial of murder in the original jurisdiction of the High Court in R v Porter,[28] where his Honour said in respect of this aspect of the insanity defence:[29]
It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression 'know,' ' knew that what he was doing was wrong.' We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.
[28] R v Porter (1936) 55 CLR 182 (Porter).
[29] Porter, 189 ‑ 190.
Dixon J further said that what is meant by 'incapacity' in this context is 'not that he reasoned wrongly, or that being a responsible person he had … unsound ideas, but that he was quite incapable of taking into account considerations which go to make right or wrong'.[30]
[30] Porter, 190.
In Stapleton, the High Court held that the capacity to know that one ought not to do an act does not require knowledge that the act is wrong in the sense that it is contrary to law; nor does knowledge that the act is punishable by law necessarily mean that a person has the capacity to know he ought not to do the act.[31] What is required is that the accused knows right from wrong according to reasonable standards, not legality from illegality.[32] The court acknowledged that, 'from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable.'[33] However, the danger of conflating the two ideas would arise if, notwithstanding that a person has complete incapacity to reason as to what is right or wrong because of mental illness, 'he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.'[34] The court identified the correct approach and the risk of a jury reasoning incorrectly in the following passage:[35]
For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing.
[31] Stapleton, 372, 375.
[32] Stapleton, 367, 375.
[33] Stapleton, 375.
[34] Stapleton, 375.
[35] Stapleton, 367.
In Evans, McLure P said there was no suggestion of any material distinction between the common law test as stated by the High Court in Stapleton and s 27 of the Criminal Code.[36] Relevantly, her Honour identified the test as being 'whether at the time of the commission of the act the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act'.[37] Her Honour considered that, in the context of this capacity, the term 'know' means 'understand', 'appreciate' or 'comprehend'. Her Honour observed that whether an act is right or wrong is determined by reference to an objective standard. The question is whether mental impairment resulted in the accused having a complete incapacity to reason as to what was right or wrong by that objective standard.[38] Her Honour said:[39]
An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from understanding that he (or she) ought not do the act. Knowledge (short of understanding) that to kill is punishable by law does not prevent such a finding. Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct.
[36] Evans [31].
[37] Evans [30].
[38] Evans [31].
[39] Evans [31].
Similarly, Wheeler JA (Owen JA agreeing) in Evans considered that the principles to be extracted from Stapleton focussed on the following two issues:[40]
First, the ability to know that one 'ought not' to do an act or make an omission is a capacity to know that one 'ought not' to do it according to ordinary standards of right and wrong, rather than knowledge that the act is unlawful. As the High Court observed, from a practical point of view it often may not matter much, because in relation to serious offences the two ideas 'are not easily separable'. However, in cases where, as here, the distinction may arise, it should be made. The second principle is that the capacity which must be found to be lacking is not merely a capacity to appreciate, in some abstract sense, that others would view the act as wrong. Rather, it is a capacity of the particular accused either to discern the difference between moral good and evil, or to 'think rationally' of the reasons which would lead ordinary people to consider the act to be right or wrong.
[40] Evans [60].
In relation to the references in the authorities to whether an accused could reason with a 'moderate degree of sense and composure' or 'calmness', Wheeler JA made the following comments in Evans, which I take into account:[41]
Although a direction as to whether the accused was capable of reasoning 'with some moderate degree of calmness' or, as it was put in Porter, with 'a moderate degree of sense and composure' is sanctioned by authority, it may in some cases, in my view, run a risk of confusing the jury. That is because these offences generally take place in circumstances in which the accused is, plainly, not composed and not calm. The relevant issue is not whether the accused is, in fact, at the particular time, reasoning calmly and rationally. The question is whether the accused's mental condition is such that the accused is incapable of thinking in a rational way.
[41] Evans [61].
I will apply the principles I have outlined in this section when considering whether the accused has established on the balance of probabilities that, as a result of mental impairment, he was deprived of the capacity to know that he ought not to do the act that resulted in the deceased's death. Without limiting the full breadth of those principles, I respectfully agree with the summaries arrived at by Jenkins J in Jones[42] and Derrick J in The State of Western Australia v Knock,[43] which may be combined into the following proposition: A person will be deprived of the capacity to know that they ought not to do the act that constitutes the offence if they have a complete incapacity to understand, appreciate or comprehend that the act is wrong according to ordinary standards (as distinct from unlawful), in that the person is incapable of thinking rationally of the reasons which would lead ordinary people to consider the act right or wrong by ordinary standards, as opposed to the law.
Capacity to control one's actions
[42] Jones [48].
[43] The State of Western Australia v Knock [2020] WASC 246 [51].
As will appear below, the psychiatric evidence in this case was to the effect that it could not be said with any certainty that, at the time he inflicted the fatal injury to the deceased, the accused was deprived of the capacity to control his actions as a result of his mental impairment, for instance because the mental impairment caused him to act impulsively. It is not surprising, then, that the accused did not rely on a lack of the capacity to control his actions as a basis for submitting that he was not criminally responsible on account of unsoundness of mind. However, aspects of the psychiatric evidence did suggest that the accused's psychotic symptoms at the time he killed the deceased may have deprived him of the capacity to control his actions. In those circumstances, it will be necessary to consider the issue and I will have regard to the following statements of the law about that issue.
As with the previous issues, I respectfully agree with and adopt the analysis of the law and the conclusions reached by Jenkins J in Marotta,[44] which her Honour reiterated in Jones,[45] in respect of this aspect of the insanity defence. Her Honour adopted the statements of law in respect of the issue in the High Court decision of R v Falconer[46] and reached the following conclusions:[47]
I conclude that the High Court has given what some authors have described as a 'very narrow sphere of operation' to the second limb of s 27. A person is deprived of the capacity to control his actions where his actions occur independently of the exercise of his will and where the person cannot exercise the power of choice to act.
This construction of the second limb of s 27 does not exclude those cases where a person is by their mental [illness] deprived of the capacity to control their actions in the sense that they are deprived of the capacity to refrain from doing an act or in the sense that the effect of their mental [illness] on their mind deprives them of the capacity to choose to act.
In the case of the effect of mental [illness] on a person's capacity to control their actions the focus will often be on the extent to which their delusions or hallucinations controlled their actions or in the words of Sir Samuel Griffith deprived them of the power of choice.
It will involve a consideration of the extent to which their mental [illness] compromised their ability to will their actions or to decide not to act. But it is necessary to bear in mind that … s 27 only applies if the accused is deprived of capacity to control actions, as opposed to something less than that such as having a significantly impaired capacity to resist an impulse or an emotion.
[44] Marotta [39] ‑ [45].
[45] Jones [46].
[46] R v Falconer [1990] HCA 49; (1990) 171 CLR 30.
[47] Marotta [42] ‑ [45] (citations omitted).
Issues to be determined
In light of the accused's admissions and the agreed facts, the issue at trial was whether the evidence as a whole, but with particular reference to the expert evidence, established on the balance of probabilities that the accused was not criminally responsible for the murder of the deceased on account of unsoundness of mind. That issue requires the determination of the following matters:
(1)Was the accused mentally impaired at the time that he killed the deceased?
(2)If the accused was mentally impaired at the relevant time, did his mental impairment deprive him of one of the capacities referred to in s 27(1) of the Criminal Code, relevantly, the capacity to know he ought not to do the act?
As I have already noted, as a question also arose on the expert evidence as to whether the accused was deprived of the capacity to control his actions, I will consider that issue.
It was not in dispute that, at the relevant time, the accused suffered from a mental impairment. As will appear from the agreed facts and in my discussion of the evidence, that conclusion is well supported by the evidence presented at trial.
The question of whether the accused was deprived of a relevant capacity requires consideration of what is known of the circumstances in which he killed the deceased, the evidence concerning his mental state leading up to and immediately after the incident, and the opinions of Dr Brett and Dr Pascu as to the accused's mental capacity, based on that evidence and the surrounding circumstances and on their interviews with the accused. However, as I discuss below, there is an issue in respect of weight to be given to what the accused said in his interviews with Dr Brett and Dr Pascu, which has a bearing on the weight I give to particular aspects of their opinions.
Evidence
Although the State relied on the Agreed Statement of Relevant Events, it also tendered a large volume of material, including a substantial part of the prosecution brief, which was received as Exhibit 3.[48] Materials that are relevant to my findings of facts will be referred to in the course of these reasons as they become relevant. It is sufficient at this stage to summarise the categories of materials tendered.
[48] In referring to evidence in the prosecution brief, I will use the designation PB followed by the page number, rather than referring to Exhibit 3.
The materials tendered by the State from the prosecution brief included:
(1)a statement from the accused's brother, Gayan Priyanga Ihalahewage, who provides background information in relation to the accused, his history of mental illness and his relationship with the deceased. More particularly, he speaks of a deterioration in the accused's condition immediately before the alleged offence. He controlled the provision of medication to his brother for his mental illness, and he identified two packets of tablets and scripts found in the accused's home by police as the medication the accused was supposed to take, and the scripts for that medication;
(2)statements from two of the accused's neighbours who lived next door. They provide background information concerning the accused from the time he moved into his unit and the observations they subsequently made of his relationship with the deceased. They also heard sounds from the accused's unit at the time of the alleged offence;
(3)a statement from the accused's duty manager at his place of employment. He saw the accused on the night of 2 February 2019;
(4)statements of police officers who were involved in the arrest of the accused and in enquiries conducted as part of the investigation;
(5)the interim post‑mortem examination report, post‑mortem examination report and supplementary post‑mortem examination report prepared by the forensic pathologist who conducted the post-mortem examination of the deceased's body;
(6)reports in respect of further medical and scientific post‑mortem investigations concerning toxicology, histopathology, neuropathology and odontology in respect of the deceased;
(7)the statement of a registered nurse who took forensic samples from the accused;
(8)transcript of the accused's electronic record of interview with the police (EROI);
(9)discharge summaries from Sir Charles Gairdner Hospital and Swan District Hospital dated 23 May 2014 and 30 May 2014 respectively, concerning the accused's admission to those hospitals for a mental health issue;
(10)records from the Frankland Centre at Graylands Hospital relating to the accused's admission there on 4 February 2019 after he was arrested and his subsequent treatment; and
(11)the reports of Dr Victoria Pascu and Dr Adam Brett, the consultant forensic psychiatrists retained to examine the accused and provide an opinion on the issues arising from the insanity defence.
The various witness statements relied on by the State were also read into evidence by the prosecutor.
As I noted earlier, the State also tendered an Agreed Book of Additional Materials.[49] That volume included:
(1)records from the accused's general Practitioner (GP);
(2)the housekeeping roster from the Mercure Hotel,[50] where the accused was working on 2 February 2019;
(3)a transcript of the 000 call made by the accused after the alleged offence; and
(4)a plan of the accused's unit.
[49] Exhibit 4A.
[50] This was also tendered as Exhibit 5.
The Agreed Book of Additional Materials was accompanied by a USB flash drive,[51] which contained electronic materials, including:
(1)CCTV footage of the accused at the Pier Street Carpark when he was trying to retrieve his car from the carpark after work on the morning of 3 February 2019;
(2)CCTV footage from the taxi the accused took home on the morning of 3 February 2019;
(3)the audio recording of the 000 call made by the accused; and
(4)the EROI dated 3 February 2019.
[51] Exhibit 4B.
The State also tendered the toxicology report with respect to the accused,[52] a further plan of the accused's house[53] and a report of Dr Griffiths and Dr Ho (from the Frankland Centre) dated 24 October 2019,[54] which was the most recent update in respect of the accused's treatment at the Frankland Centre.
[52] Exhibit 6.
[53] Exhibit 7.
[54] Exhibit 8.
As well as the formal admissions signed by the accused,[55] the defence tendered a bundle of reports with the title page 'Table of Additional Documents for Dr Pascu.'[56] As the title indicates, the bundle consisted of materials that had been provided to Dr Pascu, and relied upon by her, for the purpose of preparing her report for these proceedings.
[55] Exhibit 2.
[56] Exhibit 9.
Admissibility of evidence of the accused's statements other than in the EROI
There is an issue as to the admissibility of, and, if admissible, the weight to be given to, various statements made by the accused out of court in relation to the alleged offence and his symptoms and feelings at various times. The issue does not arise as a result of any objection made by either party, but as a result of the need to analyse the evidentiary basis for the opinions given in evidence by Dr Brett and Dr Pascu in the trial. It was acknowledged by both parties that the court can act only on admissible evidence in determining the weight to be given to those opinions. It is convenient to deal with the issue now, as its resolution will affect the extent to which I rely on the Agreed Statement of Relevant Events and my analysis of the opinions of Dr Brett and Dr Pascu in due course.
Statements made by an accused out of court will not be admissible if they come prima facie within the hearsay rule, unless they fall within an exception to that rule. Evidence is inadmissible hearsay if it consists of an extra‑curial statement that purports to state a fact and is relied upon for the truth of the statement; in other words, to prove that fact. Evidence of statements made by an accused or some other person involved in events relevant to the alleged offence (for instance, in this case, the deceased) will not be inadmissible as hearsay evidence if they are relied upon not for the truth (or testimonial) content of the statements, but rather as circumstantial evidence from which inferences might be drawn, for instance about the person's state of mind or the relationship between two people.
Exceptions to the hearsay rule include: admissions made by an accused about the alleged offence, and any exculpatory parts of a mixed statement that contains such admissions; statements that are made as part of the res gestae of the relevant events; and statements contained in records that come within s 79C of the Evidence Act.
Another exception to the hearsay rule applies to statements made by a person about his bodily (including mental) feelings and symptoms contemporaneously at the time when his state of health was in question. It is necessary for the statements to have been made at the time the person was experiencing the feelings or symptoms or soon afterwards.[57] As to when is 'soon' after the relevant event, Jenkins J noted in Jones that contemporaneity is the touchstone of admissibility of evidence on this basis.[58] As appears from the discussion in Ramsay v Watson, the rationale for the exception may be elusive.[59] It appears to have been born out of necessity, as it may be the best or only evidence of what a person was feeling or experiencing in terms of physical or mental symptoms at a particular time. However, that serves to emphasise the need for temporal connection between the statement and the experience the person is describing.
[57] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 (Ramsay v Watson), 647.
[58] Jones [16].
[59] Ramsay v Watson, 647 ‑ 648.
In Ramsay v Watson the High Court identified another basis upon which an expert medical witness can give evidence of statements made by a patient or person they were examining.[60] An expert medical witness may give evidence of a history given to him by a patient (or person being examined) and it is admissible as part of the foundation of the expert's opinion. However, the history is not admissible to prove the 'past sensations, experiences and symptoms' of the patient.[61] The patient must confirm the history in evidence if it is to be relied upon to prove the truth of that history. If the patient does not give evidence to confirm what he said to the medical expert out of court, the medical expert's opinion 'may have little or no value, for part of the basis for it has gone'.[62] Each case depends on its own facts.
[60] Ramsay v Watson, 648 ‑ 649.
[61] Ramsay v Watson, 649.
[62] Ramsay v Watson, 649.
Finally, in terms of principles, if a fact contained in a statement made by an accused (or some other person involved in events relevant to the alleged offence) is not in dispute between the parties, the making of the statement by the accused (or other person) may be relevant to the unfolding of the narrative and to explain behaviour or events that took place contemporaneously with the making of the statement or subsequently.
EROI
To the extent that the accused made statements in the EROI about his mental state (including beliefs about and feelings towards the deceased) and physical symptoms leading up to and at the time of the alleged offence, they are either part of or connected to his admissions in respect of the alleged offence or part of the contemporaneous circumstances of his participation in the interview (in that they may reveal his state of mind during the interview), which may be taken into account in assessing his answers during the interview. In each case, the statements are admissible.
As will appear when I outline the accused's account given in the EROI, it can properly be described as a mixed statement. It contains admissions that he killed the deceased, and that he intended to kill her, and statements in respect of his mental state, in particular his beliefs concerning the deceased, that could be regarded as exculpatory or self‑serving, in that they provide the foundation for the insanity defence on which he relies. All of the statements are admissible as an exception to the hearsay rule.[63] However, the question of what weight I give to any part of the accused's account is a matter for me to decide as the trier of fact. I may give less weight to exculpatory statements than to admissions.[64] That is a matter of assessment, having regard to the whole of the interview and other evidence.
Evidence of statements made by the accused before the alleged offence
[63] Nguyen v The Queen [2020] HCA 23 (Nguyen) [23] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[64] Nguyen [24].
Some of the evidence in the materials tendered by the State and the defence includes statements made by the accused at various times before the alleged offence, including several years earlier. Those materials include the statement of the accused's brother, medical records from the accused's admission to two hospitals in 2014 and statements made by the accused to his neighbours.
Statement of the accused's brother
In his statement, the accused's brother outlines observations he made of the accused's behaviour in the past, including statements made by the accused about beliefs he held. I am satisfied that the statements to which the accused's brother refers are relevant and admissible as evidence from which an inference can be drawn that the accused was suffering from mental illness and the onset of psychotic symptoms at the times to which the accused's brother refers. That speaks to the longstanding nature of the accused's mental illness, which is relevant to the opinions given by Dr Brett and Dr Pascu. The statements are not relied upon to prove the truth of the accused's beliefs. Rather, they are relied upon as delusional beliefs.
I note that the accused's brother also speaks of things said by the deceased concerning the accused's behaviour, particularly on the day before the alleged offence. The truthfulness of what the deceased said is not in dispute. The fact that the deceased demonstrated concern about the behaviour of the accused (her husband with whom she was living) may be a relevant piece of circumstantial evidence, which, in combination with other evidence, may tend to establish the state of the accused's mental health at the time of the alleged offence. It is also relevant circumstantial evidence about the reality of the deceased's feelings towards the accused, which bears upon the question of whether beliefs he held about her were delusional and demonstrative of psychosis.
Medical records from 2014
The materials include the hospital records from Sir Charles Gairdner Hospital and Swan District Hospital dated 23 May 2014 and 30 May 2014 concerning the accused's admission to those hospitals after an episode that raised concerns about his mental health.[65] The records were tendered by the State. The defence did not object to the records being received into evidence as a reliable record of the events and conversations recorded and the opinions of medical practitioners (including nurses) expressed in them. They are part of the materials on which both Dr Brett and Dr Pascu relied in ascertaining the accused's history of mental health.
[65] PB 667 ‑ 671.
The 2014 records are admissible as business records under s 79C of the Evidence Act for the truth of the observations recorded by the author of the notes in each instance, and that the conversations in the notes occurred as recorded. As the records were received without objection, there is no need to discuss the provisions or operation of s 79C further. However, it is necessary to note that under s 79C, it is the statement made by the author of the record that is received for its truth. The document is not received into evidence to prove the truth of statements made by the accused to, or in the presence of, the author. However, what the accused said is admissible to explain the actions that were taken during his admission at that time. It is also admissible if, circumstantially, it tends to establish that he was showing symptoms of a psychosis or other mental illness.
Statements made to his neighbours
As with other historical evidence that includes statements made by the accused, the evidence of statements made by the accused to his neighbours prior to the alleged offence was received without objection. Again, the truthfulness of those statements, which mainly concern the accused's sexual preferences and the circumstances in which he married the deceased, is not in dispute. Those matters are broadly relevant to the context in which the accused is alleged to have killed the deceased. They were referred to by him in the EROI. I am prepared to rely on the neighbours' evidence about the statements made by the accused in respect of those matters as relevant circumstantial evidence that sheds light on the accused's relationship with the deceased.
The 000 call
Soon after the alleged offence, the accused called the 000 emergency number and reported that his wife had died.[66] During the call, he made two brief and somewhat confusing statements about what had happened. Prima facie, they appear to suggest that the deceased started the violence. The statements are not part of the res gestae of the alleged offence, as the incident had concluded and the accused was purporting to give a historical narrative. Arguably the statements amount to a mixed statement that include an admission against interest coupled with an exculpatory explanation. However, in my opinion, the meaning of the accused's brief statements during the call is uncertain.
[66] Exhibit 4A, AB 71 ‑ 73.
In the absence of evidence from the accused to explain what he meant, I do not consider that I can give any weight to the statements. The fact that the accused made the call may be a relevant consideration in determining his state of mind at the time, and it provides context for the fact that the attending police were aware that the accused's wife was dead and that a knife had been involved. Otherwise, it is not part of the defence case that the deceased started the violence. Further, the defence did not rely on the accused's statements during the call as evidence that was probative of the insanity defence.
Statements to police officers who attended the scene
One of the police officers who attended the scene in response to the 000 call, Constable Lord, refers to a brief statement made by the accused that he was very tired and had not slept for days. That was in response to Constable Lord asking the accused if he was 'ok', when Constable Lord noticed that the accused's legs were shaking. The accused's explanation is admissible as a contemporaneous statement about his physical state at a time proximate to when the offence is alleged to have occurred. It tends to support subsequent claims he made in the EROI about his lack of sleep.
Statements to first attending doctor and upon admission to the Frankland Centre
After the EROI, the accused made statements about his mental state at the time of the alleged offence to a number of medical staff on 4 February 2019. He first spoke to a medical practitioner, Dr Bryan Jones, about that matter when he was assessed in the detention area of the courts for the purposes of a report to be provided to the magistrate, who was to preside over the accused's first appearance after he was charged.[67] The accused subsequently spoke about the matter to medical staff at the Frankland Centre upon being admitted there the same day.[68] There are then progress notes for the days and weeks that followed while the accused was being treated in the Frankland Centre. Of significance, there are notes of an assessment made in the morning on 5 February 2019, which contain descriptions given by the accused of his mental state and psychotic phenomena he was experiencing at that time.
[67] PB 568 ‑ 573 ('mental health triage' report dated 4 February 2019); Exhibit 9 (materials provided to Dr Pascu), 3 ‑ 4. The latter appears to be the original handwritten notes on which the electronic records at PB 568 ‑ 573 were based.
[68] PB 575, 580, 582, 662 ‑ 663.
In light of the principles I have discussed, the question to be determined in respect of these medical records is whether the statements made by the accused about his sensations, experiences and symptoms at the time of the alleged offence were made soon enough after the relevant event as to satisfy the requirement for contemporaneity, so as to come within the exception to the hearsay rule concerning such matters. If not, then the statements would come within the second category discussed in Ramsay v Watson and would not be admissible to establish the truth of those statements. The accused would need to give evidence of those matters before they could be found as facts on which subsequent expert opinions might be based.
The question of whether the statements were made soon after the relevant event is a matter of judgment. A relevant consideration is whether the accused's statements to the medical staff within a day or so of his participation in the EROI, indicate a perseverance of psychotic symptoms. As I will explain in due course, that conclusion is open. On balance, I am of the opinion that the statements made by the accused to Dr Jones and upon his admission to the Frankland Centre on 4 February 2019 are admissible as evidence of the fact he was experiencing the sensations and symptoms at the time of the alleged offence. However, the weight I give to those statements must be assessed having regard to all the circumstances, including the accused's account in the EROI.
The accused's statements to medical professionals at the Frankland Centre subsequent to 4 February 2019 as to his feelings and symptoms at the time he was assessed on each occasion are admissible to prove his feelings and symptoms at that time. Evidence of his feelings and symptoms over a period of time after his admission is relevant to the question of the severity of any psychosis he was suffering at the time of the alleged offence, particularly if the evidence establishes that symptoms persevered. However, any statements made by the accused after 4 February 2019 concerning his experiences at the time of the alleged offence do not satisfy the requirement for contemporaneity, in my opinion, and are not admissible to prove the fact of those experiences.
Arguably, in some respects, the accused's statements made to medical professionals on 4 February 2019 amount to admissions against interest combined with exculpatory statements in respect of the alleged offence, and are admissible on that basis. It is not clear whether the medical professionals were aware of the admissions made by the accused in his EROI. There is nothing in what was recorded on 4 February 2019 to indicate that the medical professionals proceeded on an assumption that the accused had killed the deceased. I would be prepared to accept that the accused's statements made when assessed by Dr Jones and when first assessed at the Frankland Centre come within the admissions exception. After that, it was known to those who were treating the accused that he had admitted killing his wife, and further investigations were concerned to ascertain his mental state. In my opinion, statements made by the accused after 4 February 2019 about his mental state at the time of the alleged offence are not admissible pursuant to the admissions exception.
Histories given to Dr Brett and Dr Pascu
The histories given by the accused to Dr Brett and Dr Pascu do not satisfy the contemporaneity requirement for admission of those histories under the first category identified in Ramsay v Watson. His statements to them of his feelings and symptoms at the time of the alleged offence cannot be used to prove the truth of the assertions in them on that basis.
Nor, in my opinion, is the history in each case admissible to prove the facts stated on the basis that it constitutes a mixed statement containing admissions against interest and exculpatory statements. Even if it did, I would be entitled to give less weight to the exculpatory statements if they are inconsistent with what the accused has said previously, in particular what he said in the EROI. However, I do not consider that the evidence is admissible on that basis. The accused had already made admissions to the police, and the interviews conducted by Dr Brett and Dr Pascu with the accused were not intended to elicit admissions that he killed the deceased. It is obvious that fact was assumed, as both psychiatrists commenced by ascertaining from the accused that he accepted most of what was contained in the Statement of Material Facts prepared by the police. Further, the evidence of Dr Brett and Dr Pascu was not adduced to prove that the accused killed the deceased or that he intended to kill her. It was adduced to assist the court to determine whether the accused was of unsound mind at the relevant time, based significantly on claims made by the accused to those consultant psychiatrists about his mental experiences at the time of the alleged offence.
It will be necessary, nevertheless, to outline the evidence of Dr Brett and Dr Pascu about the history given to them by the accused, as that history in each case underpinned the initial opinion provided by the expert. It will be seen that, in my opinion, there were some aspects of the histories the accused gave to them that were new and in some respects inconsistent with what the accused had said previously, particularly in his EROI.
Both Dr Brett and Dr Pascu suggested that the account given by the accused to them was likely to be more detailed in respect of his mental state, because the purpose of a psychiatric interview is different to that of a police interview, and police interviewers are not likely to explore to the same extent as a psychiatrist matters concerning psychotic phenomena that will be relevant to the insanity defence. However, in my respectful opinion, neither Dr Brett nor Dr Pascu was able to satisfactorily identify any specific aspect of the police interview that was deficient in that regard, or any aspect of their interviews with the accused that was more likely to elicit information about the accused's mental state that was absent in the EROI. In my opinion, as will appear from my outline of the EROI, there is ample evidence of the police interviewer probing the accused in respect of his mental state at the time of the alleged offence. Of course, quite properly, the accused's account was elicited by the police by questions that did not suggest the answers. The same approach was taken by the psychiatrists.
To the extent that the evidence of Dr Brett and Dr Pascu in each case suggested that the account he or she elicited from the accused was more reliable than that elicited in the EROI in respect of the accused's psychotic symptoms at the time of the alleged offence, I do not accept the proposition. In any event, it would not be a basis for overcoming the problem of admissibility pursuant to the first category identified in Ramsay v Watson. The history given by the accused to Dr Brett and Dr Pascu is received pursuant to the second category identified in that case. In the absence of evidence from the accused to establish the underlying facts, I will not rely on that history to the extent that it goes beyond facts established by other evidence, such as the EROI and the statements made by the accused to medical professionals on 4 February 2019.
Facts relevant to the alleged offence
Approach to finding the facts
The significant volume of material tendered by the parties was not intended simply to provide a foundation for the Agreed Statement of Relevant Events. It was intended also to supplement that statement, to enable me to make findings of fact beyond the Agreed Statement of Relevant Events to the extent I consider it necessary to do so.
Insofar as the Agreed Statement of Relevant Facts described the accused's relationship with the deceased and his beliefs and other mental states prior to the alleged offence, it relied substantially on what the accused said in the EROI.
What follows are the facts that I find established by a combination of the Agreed Statement of Relevant Events and my assessment of the materials tendered into evidence, which will form the factual background against which I will consider the evidence of Dr Brett and Dr Pascu. To the extent that I have relied on the Agreed Statement of Relevant Events, I have sought to convey the substance without necessarily following the wording in that statement. Where I have made significant findings that are additional to the agreed facts or I consider the agreed facts to be incorrect or incomplete, I have said so. I have not included references to the sources of the facts in the Agreed Statement of Relevant Facts except where there are direct quotes or where the source is of particular significance.
Background
At the time of the alleged offence, the accused was 44 years old. The deceased was also 44 years old. They had been childhood friends in Sri Lanka. They reunited when the accused returned to Sri Lanka from Australia in 2015. They married in June of that year and moved to Australia in 2017.
The accused has no criminal history in Western Australia.
The accused was born in Sir Lanka. His first language is Sinhalese. He communicates adequately in spoken English, which he studied in secondary school in Colombo.
The accused migrated to Australia on a student visa in 2002 and subsequently attained Australian citizenship. He initially lived in Queensland and was enrolled at university, studying for a graduate diploma in management. After failing to complete his tertiary studies at university, he went to TAFE in Queensland and obtained a qualification in hospitality.
In 2006 the accused moved to Western Australia and purchased a home within a unit complex at 15B Danehill Way, Balga.
The accused became acquainted with his neighbours, who lived in the adjoining unit. They knew him by his preferred name, Penn. One of the neighbours has said that the accused told them he was gay. That accords with the accused's admissions to the police that he had sexual relations with males, and with records obtained from the accused's GP, where it is noted that the accused identified as bisexual and reported having sex with men.[69]
[69] Exhibit 4A, AB4 ‑ 6.
The accused's brother, Gayan,[70] came to Australia in 2009 and lived with the accused in the unit (apart from times when the accused was in Sri Lanka without Gayan) until 2015, when Gayan married.
2014 – mental health issues
[70] For convenience and the avoidance of confusion by the use of Mr Ihalahewage's surname, I will henceforth refer to him by his first name.
After moving to Western Australia, the accused enrolled in a nursing course at TAFE. As part of these studies he completed a placement at the Frankland Centre in 2014.
While completing that placement, there was an incident between the accused and another colleague, which made the accused feel embarrassed and uncomfortable.
Following this incident, the accused started experiencing auditory hallucinations.[71] I note that in the EROI, the accused described hearing noises, and made a sound that is transcribed as 'dream, dream, dream, dream, dream, dream',[72] but which, on listening to the EROI sounds like a ringing noise. The accused voiced paranoid and suicidal thoughts and later collapsed in a seizure.[73]
[71] PB 252 (EROI).
[72] PB 252.
[73] PB 667 ‑ 668 (Sir Charles Gairdner Hospital admission) and 669 ‑ 671 (admission to Mental Health Unit at the Swan District Hospital).
Gayan, who was also living in Western Australia at the time, noticed signs that the accused was mentally unwell at the time of the Frankland Centre placement. Specifically, the accused was 'severely paranoid' and expressing seemingly unfounded concerns that police were coming to arrest him.
As a result, the accused was unable to work for several days.
Not long after returning to work, on 22 May 2014, the accused was admitted to Sir Charles Gairdner Hospital (SCGH) in a paranoid state. While a patient there, the accused reported persecutory delusions and stated repeatedly, 'I'm not gay.' At SCGH he was diagnosed with 'depression with psychotic features.'
He was then referred as an involuntary patient to the Mental Health Unit at the Swan District Hospital (SDMHU) where he remained between 23 and 30 May 2014. While in the SDMHU, the accused was diagnosed with 'situational crisis in the context of culturally appropriate concerns'. I add to the agreed facts that it appears the diagnosis was made on the basis that the incident at Frankland Centre with a work colleague, which led to the accused's embarrassment, left the accused believing that he would be perceived as gay and that he would be fired from work and arrested, and that his family in Sri Lanka would be 'stigmatised for his actions as homosexuality is not openly accepted in Sri Lanka'.[74]
[74] PB 669 (SDMHU discharge letter, 30/05/2014).
After he was discharged from the SDMHU, there is no record of the accused seeking treatment for mental health concerns in Western Australia. The accused told police in the EROI that he has never been treated for depression in Australia.
2015 – accused's return to Sri Lanka
After he was discharged from the SDMHU, Gayan decided to take the accused back to Sri Lanka, because he still seemed unwell and continued 'talking nonsense.' Once in Sri Lanka in 2015, the accused was hospitalised at Nagoda General where he was diagnosed with depression and was prescribed olanzapine (an antipsychotic) and fluoxetine (an anti‑depressant). The accused continued to be prescribed those medications subsequently, and packets of both medications and scripts for them were found in the accused's unit during the police investigation after the alleged offence.[75]
[75] PB 11 ‑ 17 (photographs of the items).
While in Sri Lanka, the accused attempted suicide by overdosing on his medication. Following that incident, Gayan took responsibility for dispensing the medication. He has described himself as becoming the accused's guardian from that point in time.
As I noted earlier, during the accused's return to Sri Lanka, he reunited with the deceased, who had been a childhood friend. In June 2015, the accused and deceased married. The accused told his neighbours that it was an 'arranged marriage.'
Return to Australia
In about February 2017, the accused returned to Western Australia from Sri Lanka with the deceased, and they commenced to live together in the accused's home in Balga.
The deceased, who was a qualified teacher in Sri Lanka, worked part time as an Uber Eats delivery driver, but otherwise stayed at home.
The accused was employed as a housekeeper for the Mercure Hotel in Perth.
Relationship between the accused and deceased
The accused said in his EROI and to medical professionals when he was admitted at the Frankland Centre that he and the deceased argued from time to time. Notes made at 3.15 pm on 4 February 2019 indicate that the accused said the arguments had increased in the last week.[76]
[76] PB 575. This is not referred to in the Agreed Statement of Relevant Events.
The neighbours did not hear the couple argue during the time they lived at the Balga home, but noticed that the deceased seemed consistently miserable.
There are no incidents recorded on the WA Police Incident Management System involving the accused and the deceased.
The Agreed Statement of Relevant facts also notes that the records obtained from the accused's GP in Western Australia from 2017 to 2019 show that none of his presentations were for mental health related issues.
Not long after the deceased and accused moved to Balga together, the deceased asked the accused to refinance the unit, so that she could purchase a car. He refused. However, it appears she acquired a vehicle at some stage, because there is evidence from one of the neighbours that on an occasion when one of the tyres of the deceased's vehicle was flat, the accused refused to pay for it to be replaced. The neighbour eventually assisted the deceased to replace the tyre.[77]
[77] PB 29.
The agreed facts in relation to the accused's perception of the deceased and his relationship with her are derived largely from what the accused said in his EROI. Although what the accused's answers in the EROI were at times disjointed and tangential, in the main his answers were responsive and I had the impression he was doing his best to recall events. Moreover, in most respects, his account to the police is generally consistent with later accounts he has provided about the relationship. I am satisfied that I can rely on what the accused said in the EROI as a true account of the accused's experiences.
On that basis I find that, after the accused and the deceased commenced to live in Balga, as time passed, the accused started to feel increasingly 'uncomfortable and unsafe'. He heard the deceased say, on two occasions, 'If you come to Sri Lanka, I'll get my friends to kill you.' It would appear that the last of those occasions occurred a couple of months before the incident. In light of all the evidence concerning the accused's mental state, I am satisfied that his beliefs were delusional. The evidence from Gayan, and the accused's own description of what the deceased was attempting to do on the morning of 3 February 2019, suggests that, despite her unhappiness in the marriage, the deceased cared for the accused. I find that it is implausible that the deceased would have made the threats to kill the accused. Neither party suggested otherwise. The accused's belief that he had heard the deceased make such threats was delusional and may have consisted of auditory hallucinations.
The accused has described that he would look at his wife and see 'different faces', like she was a 'ghost' or 'zombie'. He has said that sometimes he saw 'the teeth' or 'different people in her', as though she was a different lady. He has said the food he consumed tasted different and that he saw different colours (which I take to mean that colours appeared different to what they actually were). Clothing sometimes appeared to be 'inside, outside'.
The couple slept in separate bedrooms. The accused felt uncomfortable with the deceased. His mind told him he was not safe, so he avoided the home, staying there only to sleep, and leaving before his wife woke up. He struggled to sleep. The accused tried sleeping during the day, but the sound of his wife sweeping at his door prevented him from falling asleep. I would add that it is not clear from the accused's account to the police whether the sound of sweeping was real or imagined. What is clear is that it was an annoyance which contributed to a build up of feelings of distress.
The accused felt scared when he saw the deceased, and worried 'who is coming?'[78] The accused felt unable to cope. He was worried that the deceased thought less of him because she was a qualified teacher and he was a cleaner, even though she did not work as a teacher here.[79] The accused became withdrawn and barely spoke to the deceased. I note that he said to the police that they were not angry, just not talking.[80]
[78] PB 259.
[79] PB 258 ‑ 259.
[80] PB 259.
The accused and the deceased initially had a sexual relationship, but sexual intimacy ceased a year before the offence.
As I noted earlier, records from the accused's GP indicate that the accused identified as bisexual and reported having sex with men, and the accused told one of his neighbours that he was gay.
The accused told police that he used a website to meet random men for casual sex. He suspected that his wife knew about his sexual activities, but was not sure. He said there was one occasion, while they were watching a movie, when he told her that he liked one of the male actors. The deceased responded, 'You do whatever you want.'
Declining mental health
In the days leading up to the incident, the accused felt he was 'living in a cemetery.' He told the deceased he no longer wished to stay in the house. The deceased suggested they travel together. The accused said he did not want to travel with her, but would be happy if she travelled with friends, or even if they separated. However, the deceased said to the accused, 'I don't want to leave you.' The accused told police that he thought the 'devil was coming' because his wife did not want to leave him.
The accused had not taken his medication for a long time.
I note that Gayan says that he would give weekly doses to the deceased to give to the accused. He had continued to retain control of the medication because he feared the accused might attempt suicide again. He says that the deceased was giving the accused his medication for a while, but she told Gayan that the accused had stopped taking the medication.[81]
[81] PB 7 ‑ 8.
The accused told the police that, after he stopped taking his medication, he felt different. When he was in a good mood he was fine and could sleep, but when he felt rushed or stressed, he began to see 'different faces' and he was not able to sleep.
Alleged offence
Evening before the offence
The accused was rostered to start a nightshift at the Mercure Hotel at 10.30 pm on 2 February 2019.
That afternoon the accused's brother received a phone call from the deceased, who told him that the accused's behaviour had changed.
The accused drove to work, leaving home at about 5.30 pm to 6.00 pm, an hour earlier than usual. He parked his car at the Pier Street parking complex in Perth.
While in the carpark, the accused sat in his car for a long time because he was 'so confused' and not feeling well. In the preceding two days, he had not been feeling safe in himself. He told police: 'A lot of confusing things [happened] the previous day and since [then] I couldn't sleep … I am not [in] a safe place in my mind.' He heard 'noises coming, flights going, planes coming, so many things.'[82]
[82] PB 253.
At 6.00 pm Gayan called the accused. The accused told Gayan that he had not slept for three to four days. Gayan believed that the accused had relapsed, because he was saying the sort of things that he customarily said whilst acutely unwell.
Later that evening, while the accused was still at work, Gayan went to the Balga home to deliver the accused's medication. The deceased invited him inside. She showed Gayan the accused's room where, it appeared, the accused had been sleeping on the floor and urinating into a bucket.
Whether the accused lacked a relevant capacity
[168] ts 164.
I am now going to turn to the opinions of Dr Brett and Dr Pascu in respect of whether the accused was deprived of one of three capacities relevant to the insanity defence. They were largely in agreement in their opinions.
Capacity to understand the nature of the act
Neither Dr Brett nor Dr Pascu was of the opinion that the accused's mental impairment deprived him of the capacity to understand the nature of what he was doing. He was aware of his physical acts, namely that he was stabbing the deceased, and he was aware that his acts may kill the deceased.
Capacity to control his actions
Both Dr Brett and Dr Pascu were of the opinion, on the basis of the accused's account that he experienced hallucinations commanding him to kill the deceased and that he was not able to control himself, that the accused was likely deprived of the capacity to control his actions.
Dr Brett stated in his report:[169]
I believe that his mental impairment is likely to have impaired his ability to control his actions. I believe that his psychosis impacted on his ability to think clearly and make informed decisions about what he was doing.
[169] ts 127.
However, in evidence, he said that he regarded the second limb of s 27 to be an 'equivocal limb'. He said:[170]
I think the phrase is that the – the difference between an irresistible impulse and an impulse not resisted is impossible to make from a clinical perspective, so I don't like to rely on that limb.
[170] ts 127.
Dr Brett considers the second limb to come very close to the third limb of s 27, in that both limbs involve a capacity to make a choice to act. That is so, as I noted above in outlining the law. However, as I also noted, the scope of operation of the second limb is quite narrow, and the effect of the mental illness must be such as to have caused the accused to have acted independently of the exercise of his will. Impairment of his power to resist is not sufficient; there must be a complete deprivation of the accused's power to choose to act, as a result of the mental illness. In the case of delusions and hallucinations, the question is to what extent they controlled the accused's actions so as to deprive him of the power to choose.
Dr Brett is of the view that command hallucinations are not sufficient 'in themselves' to satisfy the second limb of s 27. They can result in a deprivation of the person's capacity to control their actions when they are linked with other symptoms that result in a disordered mind. In the accused's case, Dr Brett thought it was more likely that the accused would act on the command hallucinations because they were consistent with his delusions, in particular the belief that he would be killed. However, Dr Brett thought it was debatable whether that meant that the accused was deprived of control over his actions. In the final analysis, Dr Brett could not say definitively that the accused was deprived of the capacity to control his actions. Of course the standard to which I need to be satisfied is on the balance of probabilities. However, the uncertainty expressed by Dr Brett is compounded by the fact that the basis on which he did initially express the view that the second limb of s 27 was likely satisfied was the existence of command hallucinations.
Dr Pascu was of the opinion that the accused was more likely than not deprived of the capacity to control his actions. Her impression was that Dr Brett took a more abstract or academic approach than hers. While she agreed that the concept is 'a bit more abstract', she said she took a 'pragmatic, clinical perspective' to her analysis of whether the accused satisfied the criteria for the incapacity.[171] She said that, from that perspective:[172]
… the combination of what we call the threat control override symptoms which is command auditory hallucinations related to a persecutory delusion also associated with increased affect, agitation, anger and fear … the triad of those three symptoms means that the risk of committing a violent offence is much higher … [F]rom my perspective, if a person has those three symptoms at the same time … and they tell you that at the time they just couldn't control what was happening, in my mind that would mean that he was deprived.
[171] ts 161.
[172] ts 161.
It must be said that the test is not concerned with the risk of committing a violent offence. Rather, it is concerned with the capacity to choose to act. It may be that being deprived of the power to choose to act is likely to increase the risk of a person acting violently, but to focus on the likely outcome is to distract from consideration of the real issue.
In any event, Dr Pascu's opinion in respect of the accused's situation was dependent on acceptance of his statements to her that he experienced auditory hallucinations commanding him to kill the deceased. When asked whether she would still regard the accused to have been deprived of the capacity to control his actions if I were not satisfied of the presence of command auditory hallucinations, Dr Pascu said:[173]
I would say that capacity was impaired, but without the command auditory hallucinations, I wouldn't say that he was deprived.
[173] ts 163.
Dr Pascu further explained that, without the command hallucinations, the accused had the capacity to control his actions within his delusional 'reality', because he was making conscious decisions to act as he did in killing the deceased in response to the belief he had that she was plotting to harm him.
Capacity to know he ought not to do the act
Both experts concluded that the accused was deprived of the capacity to know that he ought not to do the act (the third limb of s 27).
Initially, those opinions were based on the accused's account, which included the command hallucinations and a belief that he would be killed by the deceased imminently. Accordingly, Dr Brett stated in his report:[174]
I believe that his mental impairment deprived him of the capacity to know that he ought not to do the act. At the time of the offence he was acutely psychotic. His thoughts were confused and he could not think clearly. He believed that his wife was part of a plot to have him killed. He was frightened of her and believed he would die imminently.
[174] ts 128 ‑ 129.
In Dr Brett's evidence-in-chief the following exchange occurred, reinforcing the significance of what the accused had told him:[175]
So again, it's one of those times, doctor, where your opinion is informed by the whole of the interview and his description of what he was feeling - - -?---Yes.
- - - but in regards to the concept that he was commanded – him to kill his wife the fact that the accused didn't use those discrete words in the electronic record of interview does that impact on either your opinion or the veracity of his account to you in your assessment?---No, I don't think it does.
And again, he stated that he was not given an option and felt compelled to do as he was told is – and what he described to you, paragraph 11, doctor, he stated at the time he felt he had to do the act. He believed that if he did not act as he did he would be killed. He described being in a state of fear and confusion. Now, in respect of your ultimate conclusion in regards to the third limb of section 27, is that – is that the functional paragraph of what the accused told you or has some importance in regards to your final conclusion?---Yeah, I think that's a very important paragraph in regards to the final conclusion, yeah.
[175] ts 118.
Dr Pascu explained her opinion as follows:[176]
[In] my view he was deprived of that capacity, given the fact that at the time he was acting in a psychotic reality, so his actions at the time in his psychotic reality might have been very well justified.
[176] ts 161.
Dr Pascu later clarified that she understood it was not a question of whether the accused felt that he was justified, in his psychotic reality, but whether he was deprived of the capacity to know it was wrong. She said:[177]
So what I meant by that – I don't think he had the capacity to know that there were other choices at the time.
[177] ts 186.
The fact that the accused called 000 did not affect the opinions of Dr Brett and Dr Pascu that the accused was deprived of the capacity to know he ought not to do the act. That issue is to be determined relative to the time the accused killed the deceased. On both accounts to Dr Brett and Dr Pascu, the accused described being brought back to reality when he saw his wife was dead. The accused did not describe such a realisation in the EROI. However, even if I disregard the accused's account to Dr Brett and Dr Pascu, the fact that he contacted the police would demonstrate a realisation that what he did was unlawful. It is clear from the authorities to which I referred in discussing the law that the question is whether the accused had the capacity to know that he ought not to do the act according to ordinary standards of right and wrong, rather than knowledge that the act was unlawful. While the two ideas may not be easily separable, I accept in the circumstances of this case that the distinction can and should be drawn.
Both Dr Brett and Dr Pascu were asked to consider whether their opinions would change if I were to disregard the accused's statements to them about command hallucinations and a belief that the deceased would kill him imminently, and rely only on what the accused said in the EROI and to Dr Jones and Dr Griffiths before and at the time of his admission to the Frankland Centre.
There are four answers given by Dr Brett which, in my opinion, indicate ultimately that Dr Brett maintained his opinion in respect of the third limb of s 27, despite the need to put to one side the accused's claims of experiencing command hallucinations in a context in which he believed the deceased would kill him imminently.
The first answer was in response to a question I asked:[178]
[The] question I asked, though, is would it make any difference in your opinion [as to] whether he was acting with a disordered mind at the time that … prevented him either from being able to control his actions or to understand that what he was doing was wrong, whether he did so because he believed that she wanted to kill him or because he did not believe she wanted to kill him at that point in time but simply wanted to bring to an end the psychotic phenomena that he was suffering? --- I think because he believed that she was integral into the psychosis he was suffering, I don't think it would have made a difference, in my opinion.
[178] ts 106.
The second answer was also a response to a question I asked:[179]
[I]f I can't say one way or the other whether in fact [the accused] was suffering a command hallucination, if there is no direct evidence of that before me, would it still be the case in your opinion that his mind was so disordered at the time that he simply … did not have the capacity to know that he ought not to do the act? --- Yes, I think he was.
[179] ts 140.
The third answer involved defence counsel, Ms Fedele, putting to Dr Brett the various matters on which he relied to conclude that the accused was deprived of the third capacity, omitting references to command hallucinations to kill the deceased and the delusional belief that the deceased was going to kill him imminently. The remaining propositions were as follows:[180]
I believe that his mental impairment deprived him of the capacity to know that he ought not do the act. I believe that at the time of the offence he was acutely psychotic. His thoughts were confused and he could not think clearly. He believed that he was possessed by the devil. He was experiencing perceptual disturbances (hallucinations). This included hearing airplanes and wagtails, which were a bad omen. I believe that he acted as a result of these psychotic phenomena.
[180] ts 141 ‑ 142.
In the following exchange, Dr Brett appeared to accept that his opinion would be the same, although his answer was qualified:[181]
[W]hat Mr Ihalahewa was suffering at that time, in the way that I've just read it, would we still be seeing the same result and still be here today? --- It would give him less motivation to act as he did. I think he would've still been deprived of the capacity but … it would've been harder to explain it from a psychiatric perspective.
[181] ts 142.
With respect, I do not see why it is harder to explain, given the accused's indication in the EROI that he was no longer able to tolerate the psychotic phenomena he described to the police. At one point, Dr Brett gave evidence that he could not say categorically that there was sufficient evidence, on the basis of the EROI alone, to conclude the accused was deprived of any relevant capacity under s 27. However, when I have regard to the evidence of both Dr Brett and Dr Pascu concerning the effect of the psychosis on the accused at the time he killed the deceased, there was a crescendo of disturbing phenomena, irrespective of command hallucinations and a belief of imminent death. What the accused told the police appears to reveal a disordered mind that lacked the capacity to 'think rationally' of the reasons which would lead ordinary people to consider the act to be right or wrong.
The fourth relevant answer given by Dr Brett was also to a question I asked:[182]
Can there be a situation where a disordered mind, because of a psychotic illness, can cause a person to act in those circumstances, that is, because they simply no longer want to tolerate the behaviour when, if they did not have the psychotic illness, they would not have acted in that way?---Yes, I think they could. I – I don't think it would happen in this case but, yes, it's a plausible hypothesis.
[182] ts 143.
Dr Pascu initially was somewhat resistant to consideration of a scenario other than what the accused had described to her. That is evident from the following exchange in cross-examination (italics added):[183]
I'm going to ask you to theorise or assume that in respect of your opinion in regard to whether he was deprived of the capacity to know that he ought not do the act - - -? --- Yep.
In that frank psychotic episode that he's described, if he didn't believe that his wife was going to kill him in that moment that he then proceeded to kill her, would you still be of the opinion that he had - he lacked the capacity to know that he ought not do the act due to his mental state? --- It's difficult to theorise when we know that he killed because he would have been killed. Well, he believed he would be killed. Again I think it would make it less likely, but that's not the only aspect of his psychotic reality. Certainly that's the strongest aspect as far as his wife is involved, but there were other aspects of feeling threatened by her, taken home. So the killing was the ultimate reason.
Yes. And I appreciate it's a question of degree in some respects? --- Yep.
But when you use the language of 'was more likely than not deprived of the capacity to know that he ought not do the act' - - -? --- Yep.
- - - would you still be satisfied at that threshold test of whether the accused had the capacity to know that he ought not do the act if at the time he did the killing or just before he actually didn't believe his wife was going to kill him then?---It's difficult - it's difficult to say. For me it would be to assume something which I don't believe is the case - - -
Yes? --- - - - because he very clearly said that that's why he did what he did, because he felt that his life was in danger. To say that if - if he didn't believe that, it's possible.
[183] ts 166.
Earlier, Dr Pascu had in fact expressed agreement with Dr Brett that, 'even if there was no command auditory hallucination', the accused did not have the capacity to know he ought not to do the act. However, that was in a context in which it was assumed that the accused acted in a 'frank psychotic episode' in which he believed he had to kill or be killed.[184] The exchange quoted in the preceding paragraph shows that Dr Pascu was not prepared to disregard the accused's account to her that he believed he was going to be killed by the deceased.
[184] ts 165.
Notwithstanding Dr Pascu's reluctance to consider a scenario she regarded as hypothetical, it was sufficiently clear from her answers that aspects of the accused's psychotic reality other than command hallucinations were relevant to her consideration of whether the accused was deprived of the capacity to know he ought not to do the relevant acts, and it was possible he was deprived of the capacity, even if one removed from the scenario the command hallucinations and the accused's belief that he was going to be killed imminently.
Moreover, Dr Pascu did express the view that the accused was deprived of the third capacity, even if one disregards his claims of auditory command hallucinations and a delusional belief that his life was at imminent risk from his wife:[185]
If the - the torment - if he incorporated his wife in the torment of the psychosis, but did not actually believe that she was going to kill him at that point in time, so it wasn't that he acted so much out of fear of dying but out of a desire to bring to an end the torment of the psychosis, would that make any difference to your opinion? --- No. No, I think that - I think that it would still - I would still say that at the time because of the torment of the psychosis, the only way for whatever reason whether it's relationship only or both of them, the only way for him to get out of the psychosis or the situation was to do what he did.
[185] ts 186.
More generally, Dr Pascu explained that, when considering the third capacity, it is necessary to bear in mind that a psychotic person's reasoning is defective, and he does not see questions of what is morally right or wrong in the same way as a person of sound mind, including in relation to killing someone.[186] In the delusional and hallucinatory world of the accused, who was acutely psychotic, he was not able to think rationally of the consequences or other reasons why he should choose not to commit the fatal acts.[187]
Alternative scenario
[186] ts 191 ‑ 192.
[187] ts 192.
Both Dr Brett and Dr Pascu were asked to consider whether, in killing the deceased, the accused may have been motivated by relationship issues with the deceased or his extra-marital homosexual affairs. In particular, they were referred to passages in the EROI in which the accused appeared to say that he did not want to live with the deceased.
Dr Brett said that he could not find significant support for such motivation. He did not think the accused's comments in the EROI[188] reflected a scenario in which having enough of the relationship and wanting his own life somewhere else were precipitating factors for the accused's violent attack on the deceased. Dr Brett believed that when the accused said, 'Enough, enough' as the reason for his actions, he was referring to the hallucinations the accused was experiencing:[189]
He does refer to the planes, the noise, the birds and I think at that time he just felt overwhelmed by his psychotic process. His wife massaging oil into his hair was just part of all of that, giving him the medication that he just became overwhelmed and that's why he believed that she wanted to kill him and – and acted like he did.
[188] PB 266.
[189] ts 105.
I agree, except to the extent that Dr Brett may have been suggesting that the accused believed the deceased wanted to kill him imminently. Dr Brett noted there was no evidence of prior domestic violence, a point also made by Dr Pascu. Dr Brett was of the opinion that the evidence is more consistent with the accused having acted as a result of his psychosis than with a first episode of (non-psychotic) domestic violence. While I agree with that analysis, I do not agree with Dr Brett's initial view that the accused's actions were not connected with relationship issues.
Having regard to all that the accused said to the police and to the doctors he saw on 3 February 2019, the unhappy relationship he had with the deceased and his desire to leave the relationship could be regarded either as the result (at least in part) of his delusional beliefs and the hallucinations he had about the deceased, or as a contributing factor to those delusional beliefs and hallucinations. In my view, it is likely the relationship problems and the accused's psychosis were in a kind of feedback loop, in which both worsened over time.
Dr Brett was asked whether someone with a disordered mind due to a psychotic illness, who cannot reason properly as to what is right or wrong, may respond in a violent way to resolve domestic problems in circumstances where a person of sound mind ordinarily would not. Dr Brett considered that to be a plausible hypothesis, but did not think it would apply to the accused's case.[190]
[190] ts 143.
Dr Pascu said that the accused did not indicate to her that he had wanted the relationship with the deceased to stop. The accused told Dr Pascu that he and the deceased were getting along fine, with no more arguments than any other couple. He told Dr Pascu that the deceased wanted to travel, which he had mentioned in the EROI, but he did not mention that she did not want him to leave him or that he then felt that the devil was coming him (as he had described in the EROI). In my opinion, it was very clear from the EROI that there were difficulties in the accused's relationship with the deceased. The fact he was sleeping in a separate bedroom is evidence of that. It is not to the point to say that such behaviour was part of his psychosis, because it clearly affected his relationship with the deceased.
In any event, Dr Pascu noted that the accused had incorporated his wife into his delusions about a year before the alleged offence, but it got much worse the week before 3 February 2019. The essence of her evidence was that what happened on 3 February 2019 was not an extreme act of violence by a person of sound mind in response to relationship problems. It was the act of a person in the grip of an acute psychosis. The impact of the accused's psychosis was a more significant driver for the accused wanting to leave the deceased than domestic issues or his desire to pursue sexual relations with men.
Addresses
It is not necessary for me to outline counsel's addresses. They were of considerable assistance, but I have considered the issues raised on behalf of the accused in the course of these reasons and in the assessment and findings that follow. Ultimately, the issue was narrow and the defence submissions essentially reflected the evidence of the experts. The State in effect conceded that it was open for me to be satisfied on the balance of probabilities that the accused was of unsound mind at the time of the alleged offence, because he was deprived of the capacity to know that he ought not to do the act. It did not press a contrary position.
Findings
The accused's admissions are sufficient to prove beyond reasonable doubt that the deceased was killed, and that it was the accused who killed her by inflicting the penetrating stab wounds to her neck and chest that resulted in her death. I am satisfied that the body of evidence adduced in the trial and the agreed facts to which I have referred establish those elements of the offence of murder beyond reasonable doubt in any event.
Although the accused's admission that he intended to kill the deceased is not relevant, in terms of proving that element of the offence, until I have determined the issue of whether the accused was of unsound mind at the relevant time, it is a proper acknowledgement, in my opinion, of the irresistible conclusion to be drawn from the nature of the injuries inflicted on the deceased. That conclusion is reinforced by the accused's admission during the EROI that he intended to kill the deceased – to 'finish her off'. In my opinion, this is a case in which the formation by the accused of the intention to kill the deceased, and the brutality with which he carried out that intention, are relevant to the question of whether the accused was labouring under a mental impairment that disordered his mental processes to the extent that he was deprived of the capacity to know that he ought not to do the act. I will return to that point later.
In the course of outlining the facts, I have made a number of findings about the circumstances of the accused's relationship with the deceased, the accused's mental decline leading up to the morning of 3 February 2019, and the circumstances in which the accused killed the deceased.
In short, the accused and deceased had been unhappy in their relationship. That may have been in part because of the accused's sexual preference for men. It was also because of the accused's psychotic symptoms and the fact that he incorporated the deceased into his paranoid delusional beliefs. Whether or not the marriage was an 'arranged marriage', it appears to have been ill-fated from early on, a fact that was not lost on the accused's neighbours. However, although the accused had wanted to leave the deceased, she did not want him to leave. Of course, we do not have the deceased's account of events and the reasons why she would want to continue to live with the accused. We do know that the deceased had cooperated with Gayan to administer medication to the accused for his psychiatric condition, and that, despite the fact that she may have been unhappy in the marriage, she cared sufficiently for the accused's welfare to contact Gayan when it appeared the accused's mental condition was deteriorating in the days leading up to 3 February 2019.
The signs of that deterioration were obvious to Gayan when he visited the accused's unit. They included the fact that the accused had become reclusive in his room and was urinating in a bucket in his room. The accused had stopped taking his medication. Gayan sought to engage with the accused to ensure he recommenced taking his medication.
When the accused returned from work on the morning of 3 February 2019, it was obvious to the deceased that he was tense, as she sought to soothe him by massaging oil into his hair. However, in other respects, the accused behaved in a normal way, making himself breakfast and eating it. After asking the deceased to desist with the hair oil, he had another coffee. However, they argued about the massage and, in the circumstances I described in detail earlier, the accused attacked the deceased with the knife with considerable and persistent violence, causing her death.
I am satisfied on the balance of probabilities that the accused was suffering from a mental impairment, namely paranoid schizophrenia, at the time of the alleged offence. I am also satisfied on the basis of what the accused described to the police in the EROI and what he said to medical professionals soon after, in the period up to and including his admission to the Frankland Centre, that the accused was acutely psychotic at the time he killed the deceased. In arriving at that conclusion, I have relied on the opinions expressed by Dr Brett and Dr Pascu in that regard.
The issue is whether the accused was deprived of one of the relevant capacities under s 27 of the Criminal Code when he killed the deceased.
I am satisfied on the balance of probabilities that, in attacking the deceased, the accused was motivated, at least in part, by his delusions that the deceased intended at some stage to harm him. Those delusions included the belief that, in massaging hair oil into his hair, the deceased was imbuing him with something evil, which added to his torment. They also included a belief that the deceased was plotting with her friends to kill him. However, I do not find that the accused killed the deceased because he believed that he was at imminent risk of being killed or even harmed by the deceased at the time of the offence. More particularly, I am not satisfied that the accused was hearing voices commanding him to kill the deceased and telling him it was necessary to do so in order to avoid being killed himself. Rather, the accused was experiencing distressing psychotic phenomena which had built up over time and came to a 'crescendo' on the morning of the offence. The accused killed the deceased to end the psychotic torment he was experiencing.
As I noted earlier, I consider that the fact the accused intended to kill the deceased and the brutality with which he carried out that intention are relevant to the issues whether the accused acted in a psychotic state and lacked one of the relevant capacities for the purposes of the insanity defence. That is because there is no evidence that the accused had behaved in a violent manner towards the deceased or anyone else in the past. Despite difficulties in their relationship and the fact that the accused had suffered psychotic symptoms for some time, he had sought other means to deal with his issues, mainly by avoiding contact with the deceased.
That is not to say that persons of sound mind and prior good character are incapable of committing violent acts and acting with murderous intent. Examples of such cases can be found readily in the annals of criminal justice. However, when considered against the history of the accused's relationship with the deceased and his mental decline, the extreme nature of the accused's reaction to the deceased's acts in trying to soothe the accused when he returned from work on 3 February 2019 tend to reinforce the conclusion that he was acutely psychotic and incapable of reasoning as a person of sound mind would reason. To a sound mind, it would have been obvious that the deceased was acting with a caring intention in attempting to soothe the accused. She had demonstrated her concern about the accused's deteriorating mental condition when she had contacted his brother.
Rather than appreciate that the deceased was trying to care for him, the accused continued to incorporate the deceased into his delusional paranoia, perceiving her as someone who was evil, in the nature of a zombie, and complicit in the tormenting auditory and visual hallucinations he was experiencing, including noises and omens of impending doom.
The accused's condition did not deprive him of the capacity to understand the nature of the acts he committed in stabbing the deceased and causing her death. In fact, his admissions in the EROI support the conclusion that he well knew what he was doing.
Despite my rejection of command hallucinations as a factor that compelled the accused to act as he did in killing the deceased, the circumstances described by him to the police and to the medical professionals soon after raise the possibility that the accused did not have the capacity to control his actions. At one point he said to Dr Griffiths that he 'could not control it'. However, his account to the police was of deliberate behaviour calculated to bring an end to a situation he could no longer bear. As he said, he had had enough. On balance, having regard to the opinions of Dr Brett and Dr Pascu, I am not satisfied that the accused was deprived of (in the sense of completely lacking) the capacity to control his actions, being the second limb of s 27 of the Criminal Code.
However, I am satisfied on the balance of probabilities that the accused was deprived of the capacity to know that he ought not to do the act which killed the deceased (the third limb of s 27 of the Criminal Code). I am satisfied that the accused became overwhelmed with the psychotic symptoms and the resulting torment he was experiencing at the time, which left him with no ability to reason rationally as to what was right or wrong according to ordinary standards. I am satisfied he was not able to appreciate the wrongness of the acts of violence he committed upon the deceased which caused her death.
Tragically, the deceased lost her life while trying to help the accused, whose mental illness had not been adequately managed, in part because of his failure to take his medication, resulting in a calamitous eruption of his psychosis into violent and fatal acts. Sadly, it is not the first case of its kind.
Conclusion
For the reasons I have given, I am satisfied on the balance of probabilities that, at the time he killed the deceased, the accused was deprived of the capacity to know that he ought not to do the act.
Therefore, I find the accused not guilty of murder on account of unsoundness of mind, and I will enter a judgment of acquittal on that basis.
The consequence of an acquittal on account of unsoundness of mind is set by law. Section 21(a) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (Criminal Law (Mentally Impaired Accused) Act) provides relevantly that, if an accused is acquitted of the charge of murder on account of unsoundness of mind, the court must make a custody order, which is an order that the accused be kept in custody in accordance with pt 5 of that Act.[191] Part 5 of the Criminal Law (Mentally Impaired Accused) Act provides, by s 24(1), read with the provisions that follow, that an adult accused in respect of whom a custody order has been made is to be detained in an authorised hospital, a declared place or a prison, as determined by the Mentally Impaired Accused Review Board, until released by an order of the Governor.
[191] Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 3 – definition of 'custody order'.
Orders
I enter judgment of acquittal of murder on account of unsoundness of mind.
I make a custody order pursuant to s 21(a) of the Criminal Law (Mentally Impaired Accused) Act.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HF
Associate to the Honourable Justice Fiannaca26 OCTOBER 2020
2
15
3