The State of Western Australia v Jones - [2018] WASC 395

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JONES [2018] WASC 395
CORAM:   JENKINS J
HEARD:   3 - 7 DECEMBER 2018
DELIVERED          :   17 DECEMBER 2018
FILE NO/S:   INS 26 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
IAN DENNIS JONES
Accused

Catchwords:

Criminal law - Trial by judge alone - Murder - Insanity - Whether the accused was in a state of mental impairment when he killed - Whether the accused understood what he was doing when he killed - Whether accused lacked capacity to control his act/actions which killed - Whether the accused lacked the capacity to know that he ought not do the act/s which killed

Legislation:

Criminal Code (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)
Mental Health Act 2004 (WA)

Result:

Not guilty on account of unsoundness of mind

Representation:

Counsel:

Applicant	:	Mr B E F Tooker
Accused	:	Mr J R Kelly SC & Ms K E Heath

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Accused	:	Aboriginal Legal Service (WA)

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

R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Porter [1933] HCA 1; (1933) 55 CLR 182
Radford (1985) 20 A Crim R 388
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Marotta [2018] WASC 329
Ward v The Queen [2000] WASCA 413; (2000) 118 A Crim R 78

JENKINS J:

The accused is charged on indictment that on 4 November 2016 at Eaton he murdered Tanya Leah Beattie contrary to the Criminal Code (WA) (the Code) s 279.
The accused applied for trial by judge alone and on 1 May 2018 Corboy J ordered that the accused be tried by judge alone.[1]
[1] Criminal Procedure Act 2004 (WA) s 118.
At the commencement of the accused's trial before me, the accused entered a plea of not guilty on the ground of unsoundness of mind.[2] The State opened its case on the basis that it was likely that it would agree at the end of the trial that this was the proper verdict.[3] It closed its case on that basis.[4]
[2] Criminal Procedure Act s 142, s 126(1)(d).
[3] ts 41.
[4] ts 329.
The judgment in a trial by judge alone must include the principles of law applied and the findings of fact relied on by the judge.[5]
[5] Criminal Procedure Act s 120(2).
These are the principles of law which I have applied and the facts on which I rely for finding that the accused is not guilty of murder on account of unsoundness of mind[6] because at the time he killed Mrs Beattie he was in such a state of mental impairment as to deprive him of capacity to control his actions.
[6] Criminal Procedure Act s 146.

The evidence

Other than the accused's formal admission that he caused the death of Mrs Beattie, the parties did not agree on the facts and so I must make findings of fact.
The State, with the consent of the accused, read into evidence and tendered the written statements of a large number of witnesses. It also played and tendered various audio and audio visual recordings and documents, including the deceased's and the accused's medical records.
The State tendered a written statement made in June 2016 by the accused's sister, Deanne Jones, about an incident with the accused on 7 June 2016. The statement was tendered by consent as propensity evidence pursuant to the Evidence Act 1906 (WA) s 31A.[7]
[7] Exhibit 16.
The accused elected not to give evidence. He called Dr Olav Nielssen, a consultant forensic psychiatrist to give oral evidence. His written report about the accused was tendered.[8]
[8] Exhibit 78.
In reply, the State called evidence from Dr Gosia Wojnarowska, consultant forensic psychiatrist and tendered her report.[9]
[9] Exhibit 79.

Admissibility of evidence

There is an issue as to the admissibility and weight to be given to various statements made by the accused out of court about his current and past actions, symptoms and feelings.
First there are accounts by the lay witnesses of their conversations with and observations of the accused. There was no objection to the receipt of this material and given that most of it forms part of res gestae it may be used by me to prove that the accused said or did various things. A lot of what the accused said is not relied on to prove the truth of what he said because his utterances were the result of a deluded and irrational mind.
Secondly there are the accused's and Mrs Beattie's hospital records. The State tendered these records and there was no objection to me receiving those documents as a reliable record of the events and conversations recorded and the opinions of medical and nursing experts expressed in them. They are admissible pursuant to the Evidence Act 1906 (WA) s 79C.
Thirdly there is the accused's history which he gave to Dr Nielssen and Dr Wojnarowska. The accused's statements to the doctors of past actions, feelings and symptoms cannot be used to prove the truth of the assertions in them unless they fall within an exception to the hearsay rule. One exception applies to admissions against interest. There are some comments made to Dr Nielssen which are admissible on this basis.
Another exception to the hearsay rule applies to statements made by a person about his bodily (including mental) feelings and symptoms contemporaneously to the time when his state of health was in question. The statements must be made at the time he experiencing the feelings or symptoms or soon afterwards.[10]
[10] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, 647.
The question is when is 'soon' after the late evening of 4 November 2016? Contemporaneity is the touchstone of admissibility of evidence on this basis. I conclude that anything said by the accused after 6 November 2016 is inadmissible to prove his bodily feelings and symptoms on 4 November 2016 unless his comments amount to an admission against interest. In this case not much turns on this issue because the accused has said very little about the events of 4 November 2016.
The accused's statements to medical professionals, whether they be the treating doctors and nurses or the two psychiatric expert witnesses, as to his feelings and symptoms at the time he spoke are admissible to prove his feelings and symptoms at that time.
In Ramsay[11] it was stated also that an expert medical witness may give evidence of a history given to him by a patient 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. The patient must give the evidence if it is to be relied upon to prove the truth. The High Court said that if the patient does not confirm in evidence what he said to the medical expert out of court, 'the physician's opinion may have little or no value'. In this case much of the accused's history is proven by contemporaneous hospital records.
[11] Ramsay v Watson (648 – 649).
The accused also made some admissions against interest to Mrs Hatfull and medical professionals at Bunbury Hospital. Both the inculpatory and any exculpatory parts of the conversations are admissible pursuant to the exception to the hearsay rule. When I consider the weight to be given to the statements I should take into account that the accused's out of court assertions were not sworn testimony. I must consider what weight, if any, to give to statements made by him that tend to inculpate or exculpate him. The exculpatory statements are not accepted by the prosecution. I may give them less weight than the admissions. That is a matter for me to determine. If I have a reasonable doubt as to whether any admission made by the accused is true then I cannot use it against him.

Admitted facts

At the commencement of the trial the accused admitted that:
On or about 4 November 2016 at Eaton I caused the death of Tanya Leah Beattie.[12]
[12] Exhibit 1.
I accept the admission as sufficient proof of the fact admitted without other evidence needing to be called in relation to that fact.[13] The accused did not admit how he caused Mrs Beattie's death or the circumstances surrounding her death.
[13] Evidence Act 1906 (WA) s 32.

General legal principles

The accused is presumed innocent of any offence open on the indictment. Putting to one side the issues raised by the plea of not guilty on account of unsoundness of mind, the State has the onus of proving his guilt of the charge. For the State to discharge that burden it is required to prove beyond reasonable doubt that the accused is guilty of the charge. The State bears the onus of proving each element of the charge to that standard.
If it is necessary to draw inferences from the evidence, I may only draw an inference adverse to the accused in respect of an issue on which the onus of proof is on the State if it is the only reasonable inference to draw from the evidence. If there is an alternative conclusion open within reason, I must not draw the inference necessary to prove the relevant element of the charge. This direction applies not only to each element of the charge but to any issue the onus of which is on the State to prove.
I must decide the case based on the evidence which has been produced in the trial. I must assess that evidence dispassionately. I must not decide the case based on prejudice against any person or sympathy towards any person. I must not guess or speculate about matters which are not in evidence.
Given that both parties agree that as of 4 November 2016 the accused was suffering from schizophrenia or a schizophrenia‑like illness, I should not judge his capacity to understand what he was doing, to control his actions or to know that he ought not do an act by the standards of people who do not suffer from a mental illness.
I must not reason that just because the accused assaulted his sister on 7 June 2016 that he must be guilty of this offence.
The two psychiatric witnesses are experts. Three other experts gave evidence. They are Dr Clive Cooke, forensic pathologist, Dr Victoria Fabian, neuropathologist, and Ms Penny Cooper, forensic scientist. The statements of other experts were read into evidence.
I am not bound to accept and act upon a witness's evidence, even an expert witness's evidence. I may reject expert evidence if there is other evidence to support my findings or if I conclude that the expert's opinion is unreliable or is based on an incorrect understanding of the law. Nevertheless, I am not entitled to disregard expert evidence capriciously. If there are no facts and no circumstances which, in my view, throw doubt on that evidence, I must accept it.
Neither party disputes the expertise of the opposing party's psychiatric expert witness. However, the experts are not in complete agreement on the name of the accused's mental illness or on the capacities which the accused had or was deprived of at the time he killed Mrs Beattie.
It is for me to decide whose opinion I accept in whole or in part. The determination of matters of conflict between witnesses may depend upon which party has the onus of proof in relation to the issue in dispute. It may also depend on my decision as to whether the facts upon which an expert's opinion is based accord with the facts as I have found them to be, whether the expert has taken into account the facts which I have found were not proven and the extent to which an expert's opinion reflects the law.
The accused did not give evidence. It was his right not to do so and his decision not to give evidence may not be used against him.
The State relies on alleged oral admissions made by the accused to others about his involvement in the death of Mrs Beattie. Before I can rely on an alleged admission I must be satisfied that the accused made the statement, it is true and that it implicates him in the death of Mrs Beattie.

Elements of the offence of murder

Before I may find the accused guilty of the offence of murder I must be satisfied that the State has proved each of the following elements of the offence to the standard of beyond reasonable doubt:
1.that the accused killed Mrs Beattie;
2.the killing was unlawful; and
3.at the time the accused killed Mrs Beattie he intended to cause Mrs Beattie's death or intended to cause her a bodily injury of such a nature as to endanger, or be likely to endanger, her life.
Before I can find that the accused killed Mrs Beattie I must be satisfied beyond reasonable doubt that he caused the death of Mrs Beattie either directly or indirectly by some means. This means that he has to have been proven to have made a significant or substantial contribution to the death of Mrs Beattie.
This is not a philosophical or a scientific issue. It is to be determined by applying my common sense to the facts as I find them, appreciating the purpose of the inquiry is to attribute legal responsibility in a criminal matter.
I will not determine the third element of murder as the accused has to satisfied me on the balance of probabilities of the insanity defence.[14]
[14] Ward v The Queen [2000] WASCA 413; (2000) 118 A Crim R 78.

The law applying to the insanity defence

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.[15] The accused has the burden of proving that he was not of sound mind at the time he did the act/s which are alleged to constitute the offence of murder. The accused must prove that he was not of sound mind on the balance of probabilities.[16]
[15] Criminal Code s 26.
[16] R v Porter [1933] HCA 1; (1933) 55 CLR 182.
Whether the accused proves that he was not of sound mind depends on the application of the Code s 27(1) which states:
Insanity
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
The State did not assert that s 27(1) did not apply because the accused was intoxicated.[17]
[17] See the Criminal Code s 28.

Mental impairment

The phrase 'mental impairment' is defined to mean:
Intellectual disability, mental illness, brain damage or senility.[18]
[18] Criminal Code s 1.
The accused says that he had a mental illness, being schizophrenia, at the time he did the relevant act/s which killed Mrs Beattie. 'Mental illness' is defined to mean:
[A]n 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;[19]
[19] Criminal Code s 1.
What is a mental illness is a question of law. Whether or not the facts disclose a state of mental illness is a question of fact.[20]
[20] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 60.
The definition of 'mental illness' reflects comments made by King CJ in Radford[21] about the meaning of the expression 'disease of the mind' which is used in the common law of insanity. Summarising the statement of King CJ
1.'Disease of the mind' is synonymous with 'mental illness';
2.A temporary disorder or disturbance of an otherwise healthy mind caused by external factors is not properly regarded as a disease of the mind;
3.Major mental illness of psychoses such as schizophrenia are clearly diseases of the mind as are physical diseases, such as psychomotor epilepsy and arterio sclerosis, when they affect the soundness of the mental faculties;
4.Disease of the mind is to be distinguished from 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self‑control and impulsiveness' and
5.In order to constitute insanity in the eyes of the law the malfunction of the mental faculties 'must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can properly be termed mental illness, as distinct from the reaction of a healthy mind to extraordinary stimuli'.[22]
[21] Radford (1985) 20 A Crim R 388, 396.
[22] Radford (86); in R v Falconer, the High Court generally approved of King CJ's comments even in the context of the then Code provisions.
It is not in dispute that schizophrenia and schizophrenia‑like illnesses causing psychoses are mental illnesses for the purpose of the Code s 27.
The accused says that his mental illness deprived him of the capacity to control his actions and/or the capacity to know that he ought not do the act/s. He does not suggest that it caused him to lack the capacity to understand what he did to kill Mrs Beattie.

Capacity to control actions

In The State of Western Australia v Marotta[23] I considered what it meant to be deprived of capacity to control one's actions for the purpose of the Code s 27. I see no reason to depart from the conclusions which I reached in that case. I set out below that portion of my judgment:
[23] The State of Western Australia v Marotta [2018] WASC 329.
39.The meaning of the Code s 27 where it says that an accused is not criminally responsible for an act if at the time of doing the act the accused is in such a state of mental disease as to deprive him of capacity to control his actions was discussed in R v Falconer.[24] Mason CJ, Brennan and McHugh JJ said:
[24] R v Falconer (46 ‑ 47).
'The incapacities to which s 27 refers include the incapacity to control actions whereas the M'Naghten Rules speak only of such a defect of reason 'as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.' The explanation for the inclusion of the incapacity to control actions in s 27 is that it mirrors the provisions of s 23, as Sir Samuel Griffith explained in his notes to the Draft Code, (1897), 14:
"An act to involve criminal responsibility must be voluntary, as distinguished from involuntary [s.23] - that is to say, it must be accompanied by volition. In order that an action may be accompanied by volition there must be in the first place perception, more or less accurate, of the facts, then a determination or choice of the action to be taken upon those facts, and finally the action. If the person in question is incapable from mental disorder of rightly perceiving the facts, he should be treated on the same footing as a man who in good faith misapprehends the facts [s.24]. If he is for the same cause incapable of exercising the power of determination or choice, he should be treated on the same footing as a man who does an act independently of the exercise of his will [s.23]." '
Also in Falconer Deane and Dawson JJ said:[25]
[25] R v Falconer (60).
'Where an accused's acts are alleged to be involuntary by reason of mental disease or natural mental infirmity, no distinction can be drawn between the defence of automatism - the absence of will accompanying the relevant acts of the accused - and the defence of insanity under s 27 of the Code. This is necessarily so because s 27 relieves a person of criminal responsibility for an act done in "such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions ...".
… Where the voluntariness of an accused's acts is to be determined by reference to a condition which, if it existed at all, must on the evidence have amounted to a state of mental disease or natural mental infirmity, the question whether the accused's acts were voluntary will be subsumed in the question whether the accused did in fact suffer from a state of insanity envisaged by the section such that it deprived him of the capacity to understand what he was doing or the capacity to control his actions. S 27 also applies where a person is by reason of mental disease or natural mental infirmity deprived of the capacity to know that he ought not to have acted as he did. That would seem to raise a question distinct from that of voluntariness.'
40.Their Honours equated a deprivation of the capacity to control ones actions to involuntariness pursuant to the Code s 23. Toohey J seems also to have equated involuntary action with the second limb of s 27. His Honour said:[26]
[26] R v Falconer (71) (Toohey J).
'Of course, insanity is not confined to involuntary action; insanity may be established even if a person has acted voluntarily, hence the need for lack of "capacity to understand what he is doing" or lack of "capacity to know that he ought not to do the act or make the omission" as components in s 27.'
41.Similarly, Gaudron J in Falconer said:[27]
'It is clear from the terms of s 27 of the Code - "such a state of mental disease or natural mental infirmity as to deprive him ... of capacity to control his actions" that the defence of insanity or unsoundness of mind encompasses involuntariness when it proceeds from a mental disease or natural mental infirmity.'
42.I conclude that the High Court has given what some authors have described as a 'very narrow sphere of operation' to the second limb of s 27.[28] A person is deprived of the capacity to control his actions where his actions occur independently of the exercise of his will and where the person cannot exercise the power of choice to act.
43.This construction of the second limb of s 27 does not exclude those cases where a person is by their mental [illness] deprived of the capacity to control their actions in the sense that they are deprived of the capacity to refrain from doing an act or in the sense that the effect of their mental [illness] on their mind deprives them of the capacity to choose to act.
44.In the case of the effect of mental [illness] on a person's capacity to control their actions the focus will often be on the extent to which their delusions or hallucinations controlled their actions or in the words of Sir Samuel Griffith deprived them of the power of choice.
45.It will involve a consideration of the extent to which their mental [illness] compromised their ability to will their actions or to decide not to act. But it is necessary to bear in mind that the Code s 27 only applies if the accused is deprived of capacity to control actions, as opposed to something less than that such as having a significantly impaired capacity to resist an impulse or an emotion.[29]
[27] R v Falconer (82) (Gaudron J).
[28] Colvin E, McKechnie J and O'Leary J, Criminal Law in Queensland and Western Australia - Cases and Commentary (8^th ed, 2018) 443 [17.33].
[29] The State of Western Australia v Marotta [39] ‑ [45].

Capacity to know that one ought not do the act/s

In The State of Western Australia v Herbert[30] I considered what it meant to be deprived of the capacity to know that one ought not do the act/s for the purpose of the Code s 27. I see no reason to depart from the conclusions which I reached in that case. I set out below that portion of my judgment.
[30] The State of Western Australia v Herbert [2017] WASC 101.
53.The phrase 'so as to deprive him ... of capacity to know that he ought not do the act', is generally considered to be equivalent to the common law's M'Naghten rules alternative, that the accused was labouring under such a defect of reason as 'that he did not know that he was doing what was wrong'.
54The leading Western Australian authority on the meaning of this limb of s 27 is Evans v The State of Western Australia [2010] WASCA 34 in which the Court of Appeal applied common law principles. McLure P considered the common law principles and said that there is no suggestion of any material distinction between the common law and s 27 on this point. Relevantly, her Honour said:
'The High Court in Stapleton elsewhere (367) 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 or of comprehending the nature or significance of the act.
There is no suggestion of any material distinction between the common law and s 27 on this point. Thus the real issue for the jury in this case was whether the appellant had established on the balance of probabilities that at the time of the killing his mental impairment resulted in a complete incapacity to reason as to what is right or wrong according to ordinary standards. The term "know" means "understand", "appreciate" or "comprehend". An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from understanding that he (or she) ought not do the act. Knowledge (short of understanding) that to kill is punishable by law does not prevent such a finding. Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct. Whether an act is right or wrong is determined by reference to an objective standard. The question is whether the appellant had a complete incapacity to reason as to what was, by that objective standard, right or wrong. In this case the appellant's subjective belief was relied upon by the experts to support the conclusion that he was in a psychotic state that prevented rational reasoning on right or wrong [30] ‑ [31].'
55Wheeler JA (Owen JA agreeing) also discussed the common law principles and then said:
'The authority most directly on point in this context is Stapleton v The Queen (1952) 86 CLR 358. In that case, having regard to the state of the evidence, it seems unlikely that there would have been any practical difference in result whether the jury had been directed in terms of a capacity to understand that an act was wrong according to ordinary standards, or to understand that it was contrary to law. It appears that that was the reason why the court would have "hesitated" to order a new trial simply because the jury had been directed that the test of insanity was whether the accused knew that firing a shot at another person was against the law (at 375). However, the court made it clear that such a direction was erroneous (at 367 ‑ 368).
It is not easy to summarise the detailed discussion of authority in Stapleton in a way which is capable of being fashioned into an appropriate direction in every case of insanity. However, the principles extracted from that discussion appear to focus upon two issues. 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... 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.
... 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 [59] ‑ [61].'
56As to what is meant by the expression 'capacity to know that he ought not do the act', I also rely on what the High Court said in Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 367:
'For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. See R v Davis (1881) 14 Cox CC 563, Stephen J, R v Kay (1904) 68 JP Jo 376, Stephen J. In R v Porter (1933) 55 CLR 1828 at pp 189, 190, this was expressed by Dixon J as follows:
"The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong (footnotes omitted)."[31]
[31] The State of Western Australia v Herbert [53] ‑ [56].
I conclude that a person who is in a state of mental illness is deprived of the capacity to know that they ought not do the act which kills if he 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.

Facts - Mrs Beattie's background

Mrs Beattie was born in Bunbury on 5 March 1975. At the time of her death Mrs Beattie was 41 years of age. She was 174 cm (5'8') tall and weighed 64 kg.[32]
[32] Exhibit 64.
On 28 November 2000 Mrs Beattie married Danny Beattie in Eaton, a north‑eastern suburb of Bunbury. Prior to their marriage they had purchased a home at 87 Pratt Road, Eaton. They were still living in that house at the time of Mrs Beattie's death.
Mr and Mrs Beattie have two daughters and one son. Their eldest daughter was born in 2001.[33] Their middle child, a daughter, was born in 2002 and their youngest child, a son, was born in 2009. They were all living together at the Pratt Road home at the time of Mrs Beattie's death. Mrs Beattie had a loving relationship with her three children.
[33] I will refer to Mrs Beattie's children as the eldest daughter middle child and son respectively in order to protect their privacy. I mean no disrespect.
Mrs Beattie was a registered nurse but she had not worked as a nurse for about 10 years prior to her death. In August 2016 she commenced working in a dental practice but she lost that job due to another staff member leaving and there being nobody to train her. At the time of her death she was not working outside of the house.
For at least a decade prior to her death, Mrs Beattie had substance abuse problems. At the time of her death and for many years beforehand she had an alcohol addiction which negatively impacted on many areas of her life. It affected her relationship with Mr Beattie, her children and with others in the community.
On 3 February 2016 Mrs Beattie was taken to Bunbury Hospital after she had collapsed at her children's school. Her breath alcohol level was .311. She was conscious on arrival at hospital. She discharged herself.[34] She lost her driver's licence as a result of the incident.
[34] Exhibit 77, page 49.
After Mrs Beattie lost her driver's licence she would walk to and from places she wanted to go to in Eaton. For example, she would walk to the children's school, to her friends' homes and to the Eaton shops.
Mrs Beattie had one close friend, Josephine King, who lived in Hamilton Road, Eaton about a 15 minute walk from the Pratt Road home. She would walk to and from Ms King's home and if she was too drunk, she would stay the night at Ms King's home rather than walk home in the dark.
Whilst walking around Eaton, Mrs Beattie met the accused who lived in Ann Street, Eaton. Mrs Beattie told Mr Beattie that she had met someone named Ian who lived on Ann Street. After that she continued to speak to Mr Beattie about the accused, sometimes in a positive way and sometimes not.

Facts - Mrs Beattie's actions in the week before her death

On 28 October 2016 Mrs Beattie came home early in the evening and told Mr Beattie that she was worried about the accused because his home was open and he was not home.
On Wednesday, 2 November 2016 Mr Beattie returned home around lunchtime and Mrs Beattie was not home. She came home later that afternoon and she was drunk. She started to speak to Mr Beattie about the accused. Mr and Mrs Beattie had an argument and Mrs Beattie picked up her backpack and left the Pratt Road home. A few minutes later she returned. She did not have her backpack with her and in Mr Beattie's words she looked 'spooked'.[35] She said that the accused was crazy and that he had killed two people at his house before.
[35] Exhibit 5 [98].
On Thursday, 3 November 2016 Mrs Beattie's backpack was not in the house and Mr Beattie asked her where her it was. Mr Beattie then left to take their son to school. When he got home he found a note on the kitchen bench from Mrs Beattie stating that she had gone to get her bag. That evening she walked to Ms King's home. She stayed there for about half an hour. She left at about 6.30 pm and returned home.
On Friday, 4 November 2016 Mrs Beattie got up and made her children's lunches. She appeared to be sober. The girls walked to school and Mr Beattie drove their son to school at about 8.30 am. He then returned home for about five minutes before driving to work. Just after 3.00 pm Mr Beattie picked up their son from school and drove him home. He was in a hurry as he wanted to get back to work. Mrs Beattie and the two girls were at home when he and his son arrived. Mrs Beattie told Mr Beattie that the police had called her and told her that they had found her bag. She asked Mr Beattie if he could take her to the police station to collect it. Mr and Mrs Beattie drove to the Bunbury Police Station at about 3.30 pm that afternoon. Mr Beattie dropped Mrs Beattie off at the Bunbury Police Station at about 3.45 pm.
After picking up a blue Billabong backpack from the police station, Mrs Beattie commenced to walk home. She may have taken a bus part of the way. At about 5.00 pm she arrived home and her eldest daughter noticed that she was 'slightly drunk'.[36] About 30 minutes later Mrs Beattie shouted at her son. Her eldest daughter told her to stop shouting. Mrs Beattie then left the Pratt Street home with the same backpack that she had collected from the police station. Mrs Beattie usually carried her purse, cigarettes, mobile phone and other personal items in the backpack. However, on this occasion she left her mobile phone at the Pratt Street home. Consequently, her phone records are not of any assistance in ascertaining her whereabouts after that point in time.
[36] Exhibit 7 [71].
Mr Beattie left work and arrived home at about 8.00 pm. Their eldest daughter says that he arrived home about an hour and a half earlier but nothing turns on this discrepancy. Mrs Beattie was not home when he arrived home and did not arrive home any time that evening. Mr Beattie and their eldest daughter assumed that she was at Ms King's house. Mr Beattie and the children spent the evening at the Pratt Street home. They did not hear from Mrs Beattie.
At about 7.00 pm on Friday, 4 November 2016 Mrs Beattie arrived at Ms King's home. In Ms King's opinion, Mrs Beattie was drunk but not as intoxicated as usual.[37] Mrs Beattie was upset and crying. She said that she had had words with Mr Beattie. Ms King recalls that she was wearing sneakers, tracksuit pants, a grey singlet and a ¾ length shirt over the top. Ms King also recalls her having a small burgundy bag with her. I think that Ms King is mistaken about her clothing and her bag.
[37] Exhibit 10 [5].
Ms King says that Mrs Beattie only stayed at her house for about 20 minutes. She claims that Mrs Beattie did not have her blue backpack with her but this is probably wrong. Mrs Beattie left Ms King's home and that is the last time she saw her.

Facts - accused's background and psychiatric condition up to the evening of 4 November 2016

The accused was born on 20 October 1966 to Margaret Ann Hatfull and Kevin John Jones. He has an older brother and a sister Deanne Maree Jones who was born approximately 2½ years later. His parents separated in 1978 and the accused lived with either his father or mother after that time. The accused says that around this time he was sexually assaulted. These appear to have been traumatic events in his life but it is unnecessary for me to make any findings about the long term effects of these events.
The accused did not do well at school. When the accused was a young man he became a member of an outlaw motor cycle gang. At some point he left the gang but his involvement remained a powerful motif in his life.
Around the age of 21 the accused married. He had two children to his wife. The marriage broke up in the context of the accused's unstable mental health, aggression and drug use.
The accused had two other children to two different women. One of the children Ashden who was born in January 1992 passed away after an accident in 2002 in which he apparently fell through a shower screen. There is only brief evidence about how Ashden died but Mrs Hatfull described it as 'a horrible accident'.[38] Mrs Hatfull described Ashden's death as having taken 'a toll' on the accused. He carried Ashden's ashes around until they were scattered in a river at Boyanup.
[38] Exhibit 12 [29].
The accused has a long psychiatric history. He was first admitted to Royal Perth Hospital on 1 June 1993 because he appeared depressed and had psychotic features with suicidal ideation. The accused gave a history of believing that someone was going to hurt him or kill his family. He believed that people were watching him from hidden positions, he had heard people talking about him in a disparaging way and had heard voices telling him to do things. He gave a history of very heavy cannabis, methamphetamine and alcohol abuse. He was treated as an in‑patient for ten days and started on antipsychotic medication. Within a week his delusions had ceased. He was discharged to be followed up in the long term by a community mental health clinic. He was discharged on the antipsychotic medication. The final diagnosis was amphetamine induced delusional disorder.[39]
[39] Exhibit 76, tab 1.
At the beginning of 1996 the accused was admitted to Graylands Hospital[40] where he remained an in‑patient for five days. He presented with a three month history of low mood, paranoid ideation, command and derogatory auditory hallucinations and suicide ideation. It was recorded that he was paranoid about swimming and he believed other bikies in his club were plotting against him.[41] He claimed to have recently been abusing alcohol, cannabis and amphetamines. He had personal problems. He was diagnosed with organic hallucinosis, organic delusional disorder and polysubstance abuse. After his paranoid ideation and auditory hallucinations had ceased, he was discharged on different antipsychotic medication.
[40] A hospital which treats patients with mental illnesses.
[41] Exhibit 76, tab 2.
Between 2000 and 2014 the accused presented at and/or was admitted to hospitals on multiple occasions with psychiatric symptoms. The histories which he gave differed. For example, in 2000 he apparently had delusions regarding his daughter being sexually abused and poisoned with amphetamines. In 2002 his delusional beliefs were related to his outlaw motor cycle gang associates. In 2004 he had been arrested when he had broken into a property. He claimed to own islands and the beach. He refused a nursing examination stating he had seen 'Dr Ireland, Dr Scotland and Dr Russia'.[42]
[42] Exhibit 76, tabs 2 - 7.
In 2013 the accused was taken by the police to hospital after allegedly setting fire to his car. Whilst speaking to police he ran in front of a car, took off his clothes and ran down the street.[43] Later, in March 2013 the accused was admitted to Bunbury Hospital with a history that police had taken him to hospital for an assessment after he was found threatening people. It was said that his thoughts were illogical and not goal directed. The content of his thoughts were paranoid themes regarding family, witchcraft and Pandora's Box being unearthed. He was verbally aggressive, claimed to be an elite Aboriginal tracker and to be helping to save the world.[44]
[43] Exhibit 75, tab 12.
[44] Exhibit 75, tab 13.
Later again in March 2013 he presented to Bunbury Hospital. He had been brought in by the police after neighbours had reported him spreading petrol around his front yard. He stated that he was cleaning a blanket as he thought in the past police may have been having sex there.[45]
[45] Exhibit 75, tab 14.
The hospital records are replete with references to the accused's chronic drug and alcohol abuse. There are also many references to his aggressive behaviour.
Over this period of time the accused received multiple diagnoses. For example, at Graylands Hospital he received the following diagnoses:
2000 - Delusional disorder:
2002 - Amphetamine induced psychosis, amphetamine abuse and antisocial personality disorder;
2002 - ? Delusional disorder, early relapse and ? amphetamine induced psychosis.
2004 - Delusional disorder - treatment resistant, antisocial personality disorder and polysubstance abuse;
2013 - Paranoid schizophrenia, antisocial personality disorder and polysubstance abuse history; and
2014 - Delusional disorder, dissocial personality disorder and polysubstance abuse.
At Bunbury Hospital he also received multiple diagnoses. These included schizophrenia, substance abuse disorder and antisocial personality disorder. It was often noted that he was non‑compliant with medication and that he continued to use illicit substances.
On 20 November 2014 the accused was admitted to Graylands Hospital with a history of having been taken into Geraldton Hospital after he had been found wandering. He was described as extremely aggressive and thought‑disordered. He believed that he was a king and needed to save many children. His mother reported that he had been using cannabis prior to that time. The accused stated 'I am natural. Nothing wrong with me'.[46]
[46] Exhibit 76, tab 9.

The relevant psychiatric findings were that there was evidence of a form of thought disorder. There was also evidence of content of thought disorder in terms of grandiose delusions and delusions of persecution. He had no suicidal/homicidal thoughts. His judgment was compromised and his insight was poor. He believed he had been kidnapped. He was prescribed Olanzapine, an anti‑psychotic medication, but he continued to refuse to take it and so it was administered by depot injection. He remained very paranoid, abusive, hypervigilant and labile in his mood.
The Graylands Hospital notes record that the accused was aggressive towards female staff and tried to attack them. This resulted in him being placed in seclusion. He continued to receive depot injections if he refused oral medication.
On 22 December 2014, the day before his discharge from hospital the accused was considered to be 'quite settled, polite even though continued to remain insightless'.[47] The nursing staff felt that it was not necessary to force him to take Olanzapine by depot injection as he was much improved and not aggressive. He was agreeable to taking a different antipsychotic by depot injection until he received a second opinion in the community.
[47] Exhibit 76, tab 9, page 2.
On 23 December 2014 the accused was released on a community treatment order (CTO).[48] An appointment was organised for him in late December at the Geraldton Community Mental Health Clinic. The day before his discharge Mrs Hatfull rang Graylands Hospital and said that she was not happy that the accused was to be discharged as she believed that he was still unwell and required containment. The nursing notes on that date record that the accused was pleasant but he remained delusional and insightless. The record of the nurse's conversation with the accused bears out these descriptions.
[48] A CTO is an order made under the Mental Health Act 2004 (WA) under which a person can be provided with treatment in the community without informed consent being given to the provision of the treatment.
At the beginning of June 2016 the accused's mental health was poor. Early on the morning of 5 June 2016 Mrs Hatfull called the Bunbury Hospital to advise that the accused had been missing for two days. He had returned home the previous evening and smashed things in his caravan which was parked on her property. She had called police but the accused had left. She reported that the accused had been claiming that persons unknown had hacked his bank account.
In the early hours of 6 June 2016 Mrs Hatfull called again stating that the accused had been picked up by the police after crashing his car into a petrol bowser. The police had detained him until approximately 9.00 pm on 5 June 2016 but he was then back in his caravan. Mrs Hatfull reported that she could hear the accused yelling and banging. She was too frightened to go outside. She thought that he might be using substances but she did not know. The accused had expressed some paranoid ideas about his mother having doped him in his sleep. The hospital called the police and requested that they attend.
On 6 June 2016 the accused's sister woke up at about 7.00 am to hear the accused outside her home. She could hear him saying 'weird things'. She gave him a drink and spoke to him. She permitted him to sleep in her home. At about 11.30 am the accused went outside to have a cigarette and about five ‑ 10 minutes later Ms Jones went outside and he had left.
At about 6.30 pm that night Ms Jones returned home and saw the accused wandering up her street. He was soaking wet from rain. At about 9.30 pm she walked into her house and she could see that the accused had moved items, such as pictures and ornaments, and he had done some cooking. The kitchen and house was a mess. The accused said 'they've been here again! Look what they've done!' Ms Jones could see that the accused had made the mess. He spat on the floor and told her to be quiet when she spoke. He stepped on the spit and he would only allow her to speak when his foot was on it.
Ms Jones decided to go to sleep and leave the accused in the kitchen area. She was woken up at about 3.30 am on 7 June 2016. She could hear the accused yelling in the kitchen. He was saying that he was an Aboriginal God and talking about Ashden's death. Ms Jones went out into the kitchen. She told him that he was in her house. He then charged at her and pushed her with both hands in her chest. He pushed her with such force that she was lifted off the ground and thrown about 2 m. She hit the wall with the back of her head and shoulder. She landed by the front door. She told the accused that he had hurt her and he said that he was going to hurt her more. She reminded him that she was his sister and he then denied that and said that she was 'Loni', his former partner.
Ms Jones got up and the accused came towards her. He held his right forearm against her throat and pushed her against the front door. He pushed her head to one side so she was still able to breathe. She was scared that he would kill her. He then turned away from her, turned back and slapped her once across the face with the front of his open palm. He screamed something about the devil. He then threatened to kill her. He charged back at her and she invoked Jesus' name as she is a Christian. The accused then backed off. Ms Jones picked up her personal belongings, got into her car and left the house. She and her mother Mrs Hatfull went to the police station to report the incident.
At about 4.50 am that morning the accused presented to the Bunbury Hospital with a police escort. It was noted that he was delusional. An attempt was made to give him oral medication but he spat it out. The medical records[49] record that the accused admitted taking amphetamines but there is no record in the medical notes which are in evidence that any drug screen was performed.
[49] Exhibit 75, volume 1, tab 16, page 7.
There is another triage note at 7.00 am on 7 June 2016 indicating that the accused was at the hospital in handcuffs. The writer noted that the accused knew him as he used to be his case manager. Despite that, the accused had said that the writer was an alien and reptile. His case was discussed with a more senior medical officer. It was determined, seemingly without any drug screen being done, that the accused had a drug‑induced psychosis and that he was too unstable and unpredictable to be examined further. Police assistance was required to provide IV sedation and antipsychotic medication.
The progress notes record that at about 7.45 pm the accused sat up and pulled out his IV line. He was allowed to leave. The police were informed.[50] A discharge letter states that the diagnosis was '+ psychiatric - drug‑induced mental disorder'.[51] It was noted that on presentation the accused was abusive and aggressive. There were definite psychotic symptoms. He believed that he was the creator of the universe and had been in touch with aliens. It was acknowledged that it was unclear what drugs he had taken and when.
[50] Exhibit 75, volume 1, tab 19, pages 11 ‑ 12.
[51] Exhibit 75, volume 1, tab 16, page 11.
At 10.30 pm the same day, 7 June 2016, the accused again presented to the Bunbury Hospital having been brought in by the police after he had been at his mother's place behaving inappropriately. It was noted that his behaviour was aggressive and he thought that he needed to save the world and kill the aliens.
Another triage note dated 8 June 2016 at 11.20 am records a discussion with a more senior medical officer who advised that the accused had no acute mental illness as recent symptoms related to drug misuse. He was discharged and referred to a community health clinic.
At 1.00 pm on 8 June 2016, Mrs Hatfull contacted the Bunbury Hospital to complain about the accused's discharge from hospital. She told them that he was mentally unwell and a danger to others, citing his assault on his sister.
On 9 June 2016, the police rang Bunbury Hospital. They said that they were attempting to locate the accused to bring him into the Emergency Department for assessment again.[52]
[52] Exhibit 75, volume 1, tab 16, pages 32 ‑ 33.
On 11 June 2016, the accused was admitted to Bunbury Hospital. The hospital records note that he was found to be nonsensical in speech by the police. When he was assessed in hospital he was 'floridly thought disordered'. It was noted that he had not been compliant with his prescribed psychiatric medication as per Graylands Hospital discharge summary of December 2014.
A drug screen was performed on 11 June 2016 which was positive to cannabis but negative to other common illicit drugs.[53] This result, together with the fact that the accused remained psychotic until the antipsychotic medication had time to take effect, indicates that he probably was not suffering a drug‑induced psychosis on 6 and 7 June 2016.
[53] Exhibit 75, volume 1, tab 17, page 7.
The accused was treated in hospital with Olanzapine administered orally and depot injections of another drug. He responded well to treatment and was not psychotic at the time of his discharge on 24 June 2016.[54]
[54] Exhibit 75, volume 1, tab 17, page 3.
A referral to a community mental health clinic dated 21 June 2016 recorded a diagnosis of 'antisocial personality disorder + methamphetamine psychosis'.[55] I do not understand this diagnosis given that the drug screen taken on 11 June 2016 on his admission to hospital was negative for amphetamines. The report also noted that the accused had refused his evening Olanzapine of late. The risk management section of the report said that he currently presented as low risk of aggression. This comment was made after he had been spent the last 10 days in hospital being properly medicated. The goal was said to be to monitor and assess his mental state and efficacy of medications.
[55] Exhibit 75, volume 1, tab 17, page 53.
A registrar wrote a letter in relation to the accused's presentation to the Bunbury Hospital on 11 June 2016. It noted that the accused believed he had been sent to save the universe. He said that the police were created as kangaroos after creation and were here to eat us all and he would save us. The impression was that he had a drug‑induced psychosis even though all that he had done was admitted to drinking (presumably alcohol) that day.[56]
[56] Exhibit 75, volume 1, tab 17, page 55.
Sometime in the middle of 2016 the accused purchased 6 Ann Street, Eaton. This home was close to that of his mother and stepfather. During October 2016 the accused's then partner Lonielle Ware[57] lived with the accused. Ms Ware's son and his then girlfriend moved into a caravan at the back of the Ann Street home.
[57] The accused and Ms Ware had an on again/off again relationship.
On 6 October 2016, the accused voluntarily presented at Bunbury Hospital saying that he needed a psychiatric admission as he was feeling mentally unwell. He said that he recognised that he had the initial symptoms of psychosis and he wanted to get on top of his condition before it escalated. He was admitted overnight and reviewed the following day by a locum psychiatric registrar who assessed him as having no acute psychotic symptoms and not voicing any suicidal/homicidal ideas. He was discharged home with follow‑up by a community mental health clinic. His discharge medicine was Olanzapine orally morning and evening. Urinalysis testing carried out on admission was negative for any drugs tested.
After this admission the accused told Ms Ware, her son and his partner to leave the Anne Street house. This occurred by mid‑October. Ms Ware knew Mrs Beattie from the neighbourhood. She said that up to the time she left the house Mrs Beattie had never been inside it.[58]
[58] Exhibit 17 [42].
On 14 October 2016 Eryn Cowcher, a neighbour who lived at 2 Ann Street, saw an interaction between the accused and Mrs Beattie on 14 October 2016. She saw the accused and Mrs Beattie pushing and shoving each other in the middle of Ann Street.
Mrs Hatfull noted that on the accused's 50^th birthday on 20 October 2016 he did not seem himself. On 21 October 2016, she took him to see a psychiatrist. She was concerned that the accused was talking about people talking to him in his dreams and making other comments or statements that did not make sense.
On Saturday, 22 October 2016, the accused said to Mrs Hatfull that he was going to have a drink with Ashden. By this comment she assumed that he was going to the river at Boyanup because the accused had a close association between Ashden and the river.
On 25 October 2016, the police told Mrs Hatfull that the accused's car and some clothing had been found near the water at Buffalo Beach, a nearby beach. The police told Mrs Hatfull that they were looking for the accused. After receiving the visit from the police, Mrs Hatfull went to his house to check if he was there. She noted the house was immaculate with very little mess.
On Thursday, 27 October 2016, the accused came to Mrs Hatfull's house. He pulled out a number of different vegetables from her garden and threw them around the place.
Later that day the accused asked her for some money. She and her husband gave him $55 and she drove him down to the local shops where he bought a six‑pack of whiskey mixer and some tobacco. When he got back into the car she told him that he should not drink whilst he was taking medication. He became angry and said that he was sick of needles and pills and that is why he killed his kids. Mrs Hatfull tried to change the subject. He said that he had made another woman and she was a replica of Mrs Hatfull. He said that he was free and 'the boys and I' can go wherever they liked. He also threatened to kill her by extending his arm, pointing his finger at her (imitating a gun) and saying 'bang'.[59]
[59] Exhibit 12 [77].
Mrs Hatfull dropped the accused at his home. In the afternoon of the same date Mark Payne, an acquaintance of the accused's, visited him at his home. He said that the accused was talking strangely about stars, Zeus and other things. He said that he could tell that he had drunk a few cans of alcohol. He also saw him smoke out of a small brass pipe but did not see him put anything into the pipe.
Whilst they were talking a woman walked past the house who it appears was Mrs Beattie. Mrs Beattie and the accused spoke briefly on the road, she came to the house and Mr Payne left.
The night that the accused returned home after having left his car on the beach, his neighbours Shane Jones, his wife Joanne Jones and her sister Leah Smith, who were living in a caravan at Mr and Mrs Jones' house, saw the accused. They gave varying accounts of their observations. The observations include that the accused was naked at the front of his house, he was playing loud music and he was cursing and smashing up his house.
Mr Jones heard the accused yelling that he was going to 'whack' everyone and that he had a 'safety switch'. He said that a few times.
The next day, Friday, 28 October 2016, the accused visited his mother. She asked him why he did not stay home and he said that he could not go home as it was going to 'blow and you're in it'.[60] Later that day, Mrs Hatfull observed the accused walking along the road and then hiding in her vegetable garden. He came to her house and she refused to let him inside. She reminded him of his threats from the previous day. He denied threatening her and walked off. As he did so he walked through her garden and snapped a tree in half. Later, Mrs Hatfull noticed that the accused had done even more damage to her garden by ripping up and damaging various plants.
[60] Exhibit 12 [80].
That afternoon the accused spoke to Mr Jones and asked him if he knew who had trashed his house. Mr Jones knew that the accused had done it but did not tell him.
On about Wednesday 2 November 2016, the accused asked Mr Jones to take him to Buffalo Beach to collect his car. Mr Jones agreed to do that despite observing that the accused was 'looping out'.[61] As they were driving they saw a shooting star and the accused said that it was his plane falling out of the sky. He told Mr Jones that Perth Airport was closed. As the sun was going down he looked over towards Buffalo Beach and said that it was a once in a lifetime event and that it was his land. He asked Mr Jones if he could see the dragon, referring to the skyline. He looked at Mr Jones and said 'I had to whack our mother'. Mr Jones asked him what he meant and he said that 'she is part of the Phoenix Foundation'. Mr Jones asked him what the Phoenix Foundation was and he told him that they thought they were the controllers of the universe. The accused said that he was the controller of the universe and he had to 'whack them all'.
[61] Exhibit 19 [86].
When they got to Buffalo Beach he said some other odd things and asked Mr Jones if he wanted to have a drink with him. Mr Jones said he needed to get going and he drove back home.
Around this time Mrs Hatfull and the accused's neighbours noted that the accused was creating unusual sculptures in his garden using various household items, including family photographs.
In light of his deteriorating condition, Mrs Hatfull made numerous calls to Bunbury Hospital and others expressing her concerns about the accused's mental health and her concern that he might harm her or someone else.
On Thursday, 3 November 2016, Ms Smith saw the accused standing out the front of his property naked. That was the last time she saw the accused. Mr and Mrs Jones were absent from home from then until after 4 November 2016. Whilst they were absent, Maureen Smith, Ms Leah Smith's mother, stayed at Mr and Mrs Jones' house. On the evening of 3 November 2016 she saw the accused's 4WD sitting in his driveway with all the doors open and the hazard lights on. She did not see the accused. She heard a car hit something on the road. She and Ms Leah Smith went outside and saw a pot plant on the road.
The following morning, Friday, 4 November 2016, Ms Maureen Smith noticed a wheelbarrow tipped over next to the driveway of the accused's house. She saw the accused go to the car, open the door and play music from it. Later that afternoon she saw the accused place a yellow mat on his driveway. He was then dressed in black tracksuit pants and a black T‑shirt. That was the last time she saw him.
At about 10.30 am on 4 November 2016 Ms Jo Clark, a security guard at the Eaton Fair Shopping Centre, saw the accused walking through the shopping centre in nothing but a sarong which was covering the lower half of his body.
At about 11.00 am on 4 November 2016 the accused was at the Eaton Bowling Club. He asked for a pot of water which he was given. Michelle Birrell, the approved manager, saw him walk outside with the glass of water, walk up the street and hang his jacket off a street sign. He then walked across Pratt Road and down the bank towards the river.
At about 2.00 pm he came back into the club. He asked for more water. When Ms Birrell asked him where the first glass was, he said he had been beaten up down the river. She gave him another glass of water and he walked out the front of the club. She saw him tip the water out of the glass onto the ground and place the glass in the letterbox. He then walked across the road and sat in the bus shelter for about an hour.

Facts ‑ events on the evening of 4 November 2016

Mrs Cowcher said that she did not notice anything unusual on the evening of Friday, 4 November 2016 but that her son Jaylen came in from outside and told her something. He then went and played outside again for a short period of time before coming back inside.
On 10 November 2016, Jaylen was interviewed by the police and his interview was admitted into evidence.[62] Jaylen told the police that he was outside on his trampoline when he heard some words. He said that he went inside at around 7.20 pm ‑ 7.30 pm and told his mum what he had seen and heard. He said he heard arguing near the back fence which was in the direction of the accused's home. He said he saw a man and a woman pushing each other and kicking and hitting each other. He said that they were arguing about something. He said that they were screaming and swearing. He said there was also lots of slamming of doors and 'stuff'.[63] Jaylen could only identify the female as someone who came past the house and said hello sometimes. He did not know her name. He did not know who the male was but he had heard his music up real loud. He said that he lived two or three doors down from where it happened. He said that he lived on Stanton Street. He said that the woman had walked past his house with her two daughters. He said that sometimes she was 'like really dopey … like waving around'.[64]
[62] The interview appears to have been tendered by consent rather than pursuant to a specific statutory provision.
[63] Exhibit 24.2, page 8.
[64] Exhibit 24.2, page 27.

Jaylen may well have been describing an argument between the accused and Mrs Beattie early in the evening on 4 November 2016.
In light of Ms King's evidence that Mrs Beattie left her home at around 7.20 pm on 4 November 2016 and the evidence which I will relate about Mrs Beattie's body being found at the accused's home on 5 November 2016 without her having returned to her home in the meantime, I conclude that sometime shortly after 7.20 pm Mrs Beattie visited the accused at his home. Jaylen's evidence is consistent with Mrs Beattie and the accused arguing at that time.
Pradeep Shrestha and his wife, Rushba Khadgi, lived at 6B Ann Street, next door to the accused. At about 11.00 pm that evening, Mr Shrestha heard a woman's scream coming from the accused's home. He said that he could not say it was a loud scream but it was loud enough for him to hear it in his bedroom. He said that it was only one scream and it went for a second or two.
Ms Khadgi said that she got home from work at about 10.45 pm on 4 November 2016. When she was getting changed she said that she could hear loud voices coming next door from the accused's home. She said that she heard a woman's voice but she could not hear what she was saying. She said that after that she put headphones in her ears and she did not hear anything else.
I infer that Mrs Beattie was still alive at around 11.00 pm on 4 November 2016 and that she was then in the accused's home.

Facts - events on 5 November 2016

At about 7.30 am on Saturday, 5 November 2016, Ms Clark saw the accused sitting at a bus stop at the entrance to the Eaton Fair Shopping Centre. He appeared to be arguing to himself. Ms Clark approached the accused and asked him if he was alright. He was wearing shorts and a T‑shirt without shoes. The accused told Ms Clark that the freemasons had taken his money and were going to chop him up and eat him. He stated that Ms Clark had also eaten him. She noted that his behaviour became more aggressive the more he spoke.
Ms Clark called the police at 7.57 am. The police arrived at about 8.30 am and spoke to the accused. Police Officer Kahn Le Prevost‑Shepherd was one of the officers who spoke to the accused. The accused told the officers that he was waiting for a bus. Officer Le Prevost‑Shepherd did not believe that the accused was delusional. The accused was told that he could not swear as children and members of the public were in the nearby vicinity and the accused acknowledged that. The police left the accused at the bus stop.
At about 11.00 am on 5 November 2016, the accused was seen within commercial premises at 1 Temple Road, South West Highway, Waterloo. He was sitting in a large puddle of water near the back tyre of a truck. He was covered in mud. Robert Dwyer, the caretaker of the premises, approached him and asked him what he was doing. The accused said that he was there to sort something out. He said that God had gotten on to him. He said that someone would not let him marry their daughter and everyone was trying to rip him off. He also said things about the devil. At the same time he was pushing his hand through the water and picking up handfuls of mud out of it. Mr Dwyer formed the opinion that there was something not right with the accused.
Mr Dwyer asked the accused how he had gotten into the premises. The accused told him that he had come through the gate and that he had got locked in. However, Mr Dwyer said that he could have got out the same way he came in. Mr Dwyer told the accused that he could not stay and the accused replied that he was working with God and that Mr Dwyer had to go.
Mr Dwyer advised Jeffrey Clark, his supervisor, of the accused's presence in the yard. He arrived about 20 minutes later. By this time the accused had got out of the puddle and dried himself but he was still covered in mud. He had no clothing on apart from a pair of shorts. The accused walked over to Mr Clark's car and Mr Clark asked him what he was doing. The accused told Mr Clark that he had just walked from Eaton and because it was hot he thought he would have a cool down.
The accused told Mr Clark that he was heading to the river in Boyanup because that is where his son was buried.[65] He asked if Mr Clark could give him a lift to Boyanup. Mr Clark agreed to do so. On the way the accused told Mr Clark that he thought that Mr Dwyer was the devil. They had a conversation about motorcycles and the accused then went quiet. Mr Clark said he could see that the accused was very agitated. He was looking at Mr Clark and fiddling with his glovebox and a set of keys in it. He asked Mr Clark for two wrenches. Mr Clark asked him what he wanted the wrenches for and he said that he had something to do when he got to the river. Mr Clark did not give him the wrenches.
[65] It seems that Ashden's ashes are scattered there.
The accused told Mr Clark that his son was buried at the river in Boyanup. The closer they got to Boyanup the more he elaborated on this account. The accused told Mr Clark that his whole family had been buried at the river.
Mr Clark dropped the accused off near The Bull & Bush Tavern on Bridge Street, Boyanup. At about 1.40 pm Erin Lilly, the manager of The Bull & Bush Tavern, saw the accused walk into the main bar area of the tavern. He was only wearing shorts. The accused ordered a drink and went outside. The accused purchased a stubbie of Emu Export at 1.43 pm. Ms Lilly went outside to investigate a complaint that the accused had stolen another customer's lighter. The accused approached her. He was swearing loudly saying that it was his home and that the big tree had his name on it. Somebody else told him it was time for him to go home. He then walked towards the general store. As he did so he was swearing and talking to himself.
Carole Orr lived at an address on South Western Highway. At about 3.45 pm she heard somebody at her door. She got up and saw the accused at her door. He asked her if she had a couple of cigarettes and a drink of water. She asked him who he was and he said that he was 'Thorn' and he was also known as Ashden but that 'they called him Tracker'.[66] Ms Orr had a query in her mind as to whether she had met the accused previously. She asked him to come into her house. They sat at the dining table. Ms Orr asked the accused where he lived and he replied 'Eaton'. He said that he had left the house as there were family in there and 'there was shit all over the house and shit all over the backyard'.[67]
[66] Exhibit 42 [15].
[67] Exhibit 42 [22].
During the conversation Ms Orr picked up that the accused may have mental health issues. A neighbour came to the door and said something to her. She then went back and asked the accused to leave which he did. He walked in a south‑east direction along South Western Highway towards Donnybrook. Ms Orr said that the accused did not appear to be intoxicated.
Between 7.30 pm ‑ 8.15 pm that evening Joelene Billington was driving along South Western Highway near Boyanup. The car in front of her braked and swerved. She slowed down. She then saw what she thought was a naked person on her right side. She turned around and drove back up the road away from Boyanup. She saw an item in the middle of the road and a naked male, who was the accused, on the left side of the road. He was just staring across the road. Ms Billington called the police. She did a U‑turn to resume her journey. She saw the accused walk into the middle of the road and then turn to face her vehicle. He motioned to her to continue to drive forward and then he walked across the road.
Senior Constable Keith Fay was dispatched to investigate. Approximately 1 km south of the Boyanup town site on South Western Highway he saw the accused still naked and sitting on the eastern verge. He recognised the accused as a result of having dealings with him while he was stationed in Bunbury. He spoke to the accused and in his opinion he was disoriented and dishevelled. He asked the accused how he had made his way to Boyanup and where he was going but the accused did not respond. The accused was placed in the rear section of the police vehicle. Senior Constable Fay collected a pair of shorts which were in the middle of the road but the accused said they did not belong to him.
The accused was taken to Bunbury Hospital. He became agitated and aggressive after arrival at the hospital. He refused to be examined and became increasingly agitated and aggressive. He yelled and screamed loudly. He grabbed a blood pressure measuring device and pulled it to the ground. The accused was refused any further treatment and he was escorted by the police outside. He remained in an agitated and aggressive state, abusing passers‑by.
After about 30 minutes the police were told by medical staff that the accused would not receive any further treatment at the hospital. Senior Constable Fay then requested a letter to the effect that the accused was fit to be held in police custody. This was handed to him. It is a mystery to me how that letter was prepared given that the accused had not been examined. The accused was then taken to the Bunbury Police Station.

Facts - the finding of Mrs Beattie's body

Mrs Hatfull was advised by police that the accused had been picked up. She decided to go to his house. Another son, Murray, drove her there. The lights inside and outside the house were on. The flyscreen door was closed but the solid wooden door was open. Mrs Hatfull went inside and found the house in disarray. She opened the door to the spare bedroom. She found Mrs Beattie, who she did not know, lying crosswise in a semi‑foetal position on the mattress of the single bed in the room. Mrs Beattie was dead.
The bed had a slatted wooden base and a wooden frame. The slats directly underneath Mrs Beattie's head and the top part of her body had become dislodged from the frame. Consequently, the mattress sagged a bit under her weight. Mrs Beattie was lying on her left‑hand side with her head away from the door. Her shoulder was on the edge of the mattress. Her face and neck were resting on the frame of the bed. The top of her head and hair were not supported by the bed. Her hair fell over the side of the bed and onto the floor.
Mrs Beattie had on a maroon and grey striped T‑shirt. She was not wearing any other visible clothing.
There was what appeared to be a full bladder of wine and multiple boxes of oxycodone medication which had been prescribed for the accused on the floor close to the bed. There was a wine glass which had been tipped over on the floor close to the medication and wine bladder.
The only other furniture in the room was a roll top desk. The police later found some of Mrs Beattie's possessions in the knee hole of the desk. There was also a wine glass on top of the desk.
Mrs Hatfull did not register those details but of course she saw Mrs Beattie. Her son told her to go outside and she did. Murray also went into the room but it does not appear that he stayed long. They then called the police.
The police commenced an investigation into the death of Mrs Beattie. It did not take long for them to connect the accused with his home and the death of Mrs Beattie. At 10.40 pm the accused was arrested at the Bunbury Police Station lock‑up under suspicion of causing Mrs Beattie grievous bodily harm.

Facts ‑ the accused's condition after 5 November 2016

Sergeant Adrian Maughan, then a detective senior constable at Major Crime Squad, was allocated the role of investigating officer into the death of Mrs Beattie. In the early hours of 6 November 2016, he and other officers drove to Bunbury. At 6.30 am that day they attempted to speak to the accused. He noted that the accused's mood swung towards aggressive and delusional at times making conversation difficult.
Detective Sergeant Graham Johnston introduced himself and asked the accused whether he understood why he was there. The accused said that his name was not Ian but rather 'Thorn' and that he was there because he was helping them out. He said that he would never hurt anyone. He told the police that they were acting like they were the law but that he was the law. He said that Detective Sergeant Johnston was an imposter and spoke about his police force. He accused the police of eating his son. The accused was loud, irritated and belligerent. After a short period the police ended the conversation.[68]
[68] Exhibit 70.
At 1.00 pm he had another conversation with the accused. During the conversation the accused asked:
Are you here to speak to me about the chick who was killed at my house?[69]
[69] Exhibit 68 [26].
The accused told Sergeant Maughan that he had a twin brother that was separated from him at birth for the purpose of killing the girl. Once again, the accused became verbally aggressive and delusional. Later that day the accused spoke to Sergeant Maughan about his involvement in an intergalactic police force. He refused to speak about the female in his house.
Arrangements were then made to have the accused assessed at Bunbury Hospital. He was admitted to the Psychiatric Intensive Care Unit (PICU) at the hospital[70] and remained there as an involuntary patient until 9 December 2016 when he was discharged to police custody.
[70] On a form 1A which is a referral for a psychiatric assessment by a mental health practitioner on an involuntary basis; ts 294.
On 6 November 2016, the police completed forensic procedures on the accused which included taking a sample of his blood. This was analysed for alcohol and common drugs. Alcohol, cannabis and other common basic drugs were not detected in the sample. Midazolam, a benzodiazepine, was found at an apparently therapeutic level.[71]
[71] Exhibit 60.
On 9 November 2016, Bunbury Hospital conducted a drug screen urinalysis which was positive for cannabis and benzodiazepines.[72] There is no evidence to explain how the blood test on 6 November 2016 was consistent with the positive result for cannabis on 9 November 2016. In the intervening period the accused was in police custody and it is not reasonable for me to infer that he could have used cannabis. Dr Cooke opined that it could be explained by a difference in cut off or threshold levels for the reporting of a positive detection.[73] What is most important about these results is that there is no evidence in either screen of the accused having consumed amphetamines or of him being acutely intoxicated with cannabis at the time Mrs Beattie was killed.
[72] Exhibit 61.
[73] ts 236.
For a considerable amount of time that he was an in‑patient the progress notes record that the accused was agitated, hostile and verbally aggressive. On many occasions he was managed by being placed in seclusion. He also required Acuphase, a rapid tranquiliser.[74] Despite being treated with Olanzapine and other drugs from the time of his admission, he was grandiose and delusional. He repeatedly expressed deluded views such as that he was the creator, he was the universe, he was the planet Zircon and he was in control of everyone. There were times also when he was settled and reasonable.
[74] ts 294.
Until 11 November 2016 extra security staff were required to manage his behaviour. Even after it was decided to stand those security guards down, there are frequent references in the notes to the accused's aggressive and intimidating behaviour. On a couple of occasions he physically assaulted others (although not seriously), he tipped over furniture in anger when his needs were not met and he was not cooperative in taking his medication or complying with staff requests.
On Tuesday 22 November 2016, Mrs Hatfull had a telephone conversation with the accused which was monitored by the police. Mrs Hatfull asked the accused who 'Tanya' was and told him that she had found a note from Tanya in his house. The accused in response denied any knowledge saying 'I don't know, I had nothing to do with it'. He then changed the subject.
Towards the end of November a noted improvement in the accused's behaviour was noted, although some irritability remained. Even on 30 November 2016, it is recorded that he continued to talk about saving the world and other grandiose themes.[75]
[75] Exhibit 75, volume 2, tab 23, page 95.
The hospital notes indicate it was not until the first week of December 2016 that the accused was able to have rational conversations which displayed some insight into his circumstances.
On 7 December 2016, a nurse conducted a substance use assessment with the accused. This was when he was more rational. He said that he had last used cannabis prior to his admission to hospital and that his usual amount was half a cone. He denied recently using any illicit drugs in the period immediately prior to his admission to hospital.[76]
[76] Exhibit 75, volume 2, tab 23, page 137.
On the morning of 9 December 2016, the accused was discharged to police custody. He was discharged on a CTO, to receive Olanzapine by depot injection regularly and to be followed up at a community mental health clinic.
When the police picked the accused up from the hospital they arrested him on suspicion of the murder of Mrs Beattie.
Whilst the accused was an in‑patient at Bunbury hospital it does not seem that he spoke a lot about the reasons why he was in hospital and the death of Mrs Beattie. There is the following evidence relating to comments he made about Mrs Beattie:
1.18 November 2016 ‑ the accused told a clinical nurse specialist 'I worked out who killed my son. It was a coffin cheater. There's a dead coffin cheater in my house'.[77]
2.23 November 2016 ‑ the accused told a doctor that he was not violent and he did not kill. He said 'I know there was a body in my house. She drops in for drinks. I don't know what happened.' The accused also said 'she was the devil'. He told the doctor that he had lost his switch and that when he loses his switch he is taken care of by the switch. These comments were made when the accused was still grandiose and delusional.[78]
3.30 November 2016 ‑ the accused told Mrs Hatfull that he thought that he would end up spending the rest of his life in jail. She asked him why and he told her that he had killed a coffin cheater. After some further conversation he said 'I killed a girl (or a woman).' Mrs Hatfull asked him how he knew and he said that he saw it on TV. She said where and he said 'Ann Street'. He told her something along the lines of he choked or strangled the girl. Mrs Hatfull recalled that it had something to do with her neck.[79]
4.3 December 2016 ‑ the accused spoke to a registered mental health nurse who he knew from previous admissions and told her that he felt no remorse for what he had recently done.[80]
5.6 December 2016 ‑ the accused told a psychiatrist that if he had 'this medication (Olanzapine) earlier, that woman would still be alive'. He then said 'I don't even feel remorse because it wasn't me, I was sick. The system has failed me'. The accused was distressed and crying.[81]
6.8 December 2016 ‑ the accused told an advanced skilled enrolled nurse that if he had been sent to PICU he 'wouldn't have killed someone and now I have to suffer'.[82]
[77] Exhibit 73, Exhibit 75, vol 2, tab 23, page 72.
[78] Exhibit 75, vol 2, tab 23, page 82.
[79] Exhibit 13 [32] ‑ [54].
[80] Exhibit 71, Exhibit 75 vol 2, tab 23, page 101.
[81] Exhibit 72, Exhibit 75, vol 2, tab 23, page 107.
[82] Exhibit 74, Exhibit 75, vol 2, tab 23, page 109.
In relation to the admissions made to Mrs Hatfull on 30 November 2016 the State led evidence that Dr Cooke's report which concluded that Mrs Beattie died from neck compression was not published until 20 September 2017.[83] It also led evidence that the police did not advise the media prior to 30 November 2016 that Mrs Beattie had been strangled or choked.[84] It submitted that I ought to put weight on that admission against interest in particular as proof that the accused knew from his own knowledge that he had strangled or choked Mrs Beattie. Consistent with the expert medical evidence I am satisfied that the accused applied a broad force to Mrs Beattie's neck but for reasons stated later I do not find his admission probative in proving how he did that.
[83] Exhibit 65.
[84] ts 250. The accused submitted that I ought not admit this evidence because of its late disclosure. I have decided to admit it but I find it of little assistance in determining the issues in this case.

Dr Nielssen said that schizophrenia is a neurodegenerative condition affecting the frontal and temporal lobes of the brain. The brain of a person with schizophrenia is already smaller and it shrinks faster than the brains of the rest of the population. Typically the social performance of a schizophrenic patient deteriorates over time and the illness becomes increasingly treatment resistant. Dr Nielssen said that the course of the accused's illness had been a little bit atypical in the sense that he had gone periods without treatment and without rapid relapse.[113]
[113] ts 259.
Dr Nielssen confirmed that when he spoke to the accused had a loss of spontaneity, blunting of emotional reactions and paucity of speech. He said that it appeared that the accused's antipsychotic medication, Olanzapine had ameliorated the acute symptoms of the accused's illness but it had not done anything for the so called negative symptoms of schizophrenia. It also had not enabled the accused to gain insight or self‑awareness in the sense that he still believed that his florid psychosis was as a result of stress.[114]
[114] ts 260.
Dr Nielssen said that contrary to the opinion expressed in his report and after reading the Criminal Code s 27 he was now of the opinion that the accused at the time he caused Mrs Beattie's death was not in such a state of mental impairment as to deprive him of the capacity to understand what he did. He said that he assumed that the accused would have a basic knowledge of the physical nature and quality of his actions, even though he reported not remembering them.[115]
[115] ts 263.
Dr Nielssen said that he did not believe that the accused was 'quite at the standard of being' an automaton when he killed Mrs Beattie but he was deprived of the capacity to control his actions. He said that the accused's capacity to control his actions was grossly impaired by the effects of the psychosis in a number of ways. First he had delusional beliefs regarding Mrs Beattie. Secondly he was acutely aroused. Thirdly he had a 'great impairment' in his ability to control his anger and fourthly he had grossly disorganised thinking, being an incapacity to think logically about what the consequences of his behaviour might be.[116]
[116] ts 264 ‑ 265.
Dr Nielssen said that the accused's delusional beliefs about Mrs Beattie made him afraid of his safety and to feel terribly wronged. The accused's acute arousal meant that he lacked the capacity to think logically. He could not think logically that he could be wrong about his thoughts and feelings about Mrs Beattie and the death of Ashden and that those thoughts and feelings could be could be caused his illness recurring. That was because his thinking was so illogical, disorganised and bizarre. The illness also effected the accused's emotional regulation. Dr Nielssen said that the capacity to control anger and to control emotions during an acute psychotic episode is often grossly impaired. Further in relation to the accused's disorganised thinking Dr Nielssen said that schizophrenia being a frontal lobe neuropathy affects decision making, impulse control, the capacity to plan, capacity for logical thinking and the ability to perceive reality.[117]
[117] ts 274.
In cross‑examination Dr Nielssen said that he believed that the accused was deprived of the capacity of exercising freewill in a clear mind.[118]
[118] ts 282.
In Dr Nielssen's opinion at the relevant time the accused was deprived of the capacity to know that he ought not do the act which caused Mrs Beattie's death. He said that this was the main area in which the insanity defence applied to the accused.[119] That is because he believed that the accused was affected by a delusional belief that Mrs Beattie was involved in the coffin cheaters and the coffin cheaters had been involved with the death of his son. In those circumstances he was deprived of the ability to recognise that he should not have assaulted her.[120]
[119] ts 265.
[120] ts 265.
In cross‑examination Dr Nielssen was asked whether it was difficult to form an opinion in relation to the accused's capacity to know that he ought not do the act which killed Mrs Beattie given that the accused claimed not to remember that act. Dr Nielssen said that from a psychiatric point of view it is clear that the accused was acutely unwell in the relevant period. He cited the accused's behaviour of taking his clothes off, lighting fires, 'tearing' his house apart, making sculptures in his yard and pulling up his mother's plants as evidence of the accused's behaviour caused by his mental illness. He said that it is not difficult in the context of that behaviour to conclude that at the time he killed Mrs Beattie he was deprived of the capacity to know that he ought not do that act.[121]
[121] ts 282.
Dr Nielssen said that his opinions were not dependent on the accused believing that Mrs Beattie was involved with the coffin cheaters and that the coffin cheaters were involved in the death of his son. He said that his opinion relied on the severity of the accused's mental illness, with all the bizarre beliefs that went with it. However it did seem to him that the fact that the accused went to visit his son's grave after he left Mrs Beattie made it likely that these beliefs were involved in his thinking in some way or another.[122]
[122] ts 283.
Dr Nielssen said that the persistence of the accused's psychosis after he was arrested on 5 November 2016 and properly medicated showed how acutely mentally ill he was.[123]
[123] ts 269.
In relation to the accused's repetitive assertion that while psychotic that he had a switch, Dr Nielssen said that it could be an idiosyncratic word usage being a manifestation of a thought disorder or it could indicate that his capacity for self‑control was impaired and he was trying to describe the way he could not control his actions.[124]
[124] ts 271.

Psychiatric evidence ‑ Dr Gosia Wojnarowska

At the request of the State Dr Wojnarowska prepared a report dated 11 December 2017. Dr Wojnarowska is a highly qualified forensic psychiatrist. She is currently head of clinical services at the Frankland Centre, the State's forensic mental health facility and the State Forensic Mental Health Services. She is well qualified and experienced to give an opinion in this matter.
Dr Wojnarowska was provided with the prosecution brief, Graylands Hospital medical records, Bunbury Hospital medical records and prison calls made by the accused.[125] Dr Wojnarowska interviewed the accused for three hours on 7 October 2017. Dr Wojnarowska also had access to Dr Nielssen's report.
[125] The prison calls are not in evidence. There is nothing in Dr Wojnarowska's report to indicate that they influenced her opinion. It also seems that both psychiatrists had access to the accused's prior criminal record. The record is not in evidence and I have taken no account of references to the accused's prior criminal history.
Dr Wojnarowska said that the accused was able to provide a good history regarding his life and the events leading up to October 2016. He told her that he had a very hazy recollection of life events between October 2016 and January 2017.
At interview Dr Wojnarowska found the accused's affect to be of normal range, depth and reactivity. His speech was fluent and forthcoming with no evidence of a formal though disorder or psychotic phenomena. His insight was fair and his judgment was not impaired. It seems that he was in better mental health and more insightful than when he was seen by Dr Nielssen.
The accused did not make any admissions to Dr Wojnarowska about this charge. When questioned about what he thought had happened between him and Mrs Beattie he said 'I honestly don't know, I wish I could remember and feel sorry for what I have done. I feel nothing because there is nothing in my mind to feel sorry for'.[126]
[126] Exhibit 79, page 4.
Dr Wojnarowska said that the accused fulfilled the criteria for a schizophrenia-like syndrome characterised by recurrent psychotic episodes interspaced with periods of relatively normal functioning. Her other relevant diagnoses were anti‑social personality disorder and cannabis use disorder.
Dr Wojnarowska expressed the opinion that the symptoms of psychosis were present prior to, during and for a prolonged period (until the end of January 2017) after the incident which resulted in the death of Mrs Beattie. She said that his presenting symptoms were bizarre and in excess of what would be expected given the type of drug he had used (cannabis). This suggested the existence of an independent non‑substance induced psychotic disorder. In her opinion he was psychotic at the time he killed Mrs Beattie and as such, the criterion for mental impairment in the Code s 27 was fulfilled.
Dr Wojnarowska believed that the accused most likely knew that his actions (which killed) would lead to Mrs Beattie being harmed. She believed that the possibility of the accused being delirious at the time is low and therefore, there was no reason to suggest that he did not know what he was doing.
In Dr Wojnarowska's opinion the accused was not capable of controlling his actions at the time he killed Mrs Beattie. His executive functioning which controlled his impulses and behaviour were severely compromised by the presence of psychosis. His judgment was impaired. His motive for killing Mrs Beattie would remain unknown as he reported no memory of the events.
Dr Wojnarowska said that the significant majority of people, even when experiencing symptoms of psychosis understand that killing another person is wrong. She said that it is only if a person perceives that their life (or presumably another's life) is in danger that it can be said that they lacked the capacity to know that they ought not do an act which killed. Dr Wojnarowska said that she could not comment if, due to his delusional beliefs, the accused thought that his life was in danger or if Mrs Beattie had posed any threat to him. She said that she could only infer from his statements about the bikies that he perceived any bike gang member as a threat to him.
Dr Wojnarowska testified that at the time the accused killed Mrs Beattie he was suffering from a mental impairment being an acute psychotic illness. She said that there was strong evidence of a deterioration in his mental health since the middle of 2016. She was of the opinion that the accused was in full relapse when he presented to Bunbury Hospital on 6 October 2016. It is not very clear to her why that was not detected at the hospital.[127]
[127] ts 291.
Dr Wojnarowska saw some significance in the accused's references to having a switch. In her opinion this was an indication that the accused did not think that he was in full control of his body or his actions. Rather there was a switch which controlled his behaviour.
Dr Wojnarowska said that the accused's behaviour leading up to 4 November 2016 was very bizarre and disorganised. It included grandiose and bizarre delusional beliefs such as that he was the controller of the universe. She said that there was illogicality in this thought. That is even if he thought was the controller of the universe there was no logical connection between 'whacking' other people and being the controller of the universe. Consequently he was also thought disordered.[128]
[128] ts 293.
In Dr Wojnarowska's opinion the accused was so aroused at the time he killed Mrs Beattie that the memories of that moment probably did not crystallise in his mind. She accepted he was telling the truth when he said that he could not remember what he was thinking at that time.[129]
[129] ts 295.
Dr Wojnarowska, like Dr Nielssen, said that the accused was not an automaton at the time he killed Mrs Beattie. Rather the presence of acute psychosis severely comprised his mental state. The psychosis affected the functioning of the frontal lobe of his brain which controls the executive functions. It controls and inhibits behaviour and impulses. In her opinion the accused was not able to control his actions at the time he killed because of the influence that psychotic symptoms had on the frontal lobe of his brain and his ability to control his behaviour and impulses.[130]
[130] ts 296.
In Dr Wojnarowska's opinion the third alternative criteria in the Code s 27(1) had not been established. Her starting point was that she had not encountered many people who, even in highly psychotic state, did not know that they should not harm or kill another person. She acknowledged that it was possible to envisage a situation in which a person who was in a very specific delusional state about a person or situation would not know they should not do a harmful act to another. The evidence that the accused thought that Mrs Beattie was engaged or involved his son's death meant that he knew that killing Ashden was wrong and by inference that he maintained a core belief that killing another person was wrong. Dr Wojnarowska could not see evidence to support a finding that the accused had thought that Mrs Beattie was a direct risk to other people to the extent that he did not know that he ought not have done the act which killed her.[131]
[131] ts 297 ‑ 298.
Dr Wojnarowska said that despite this opinion she was of the view that as at 4 November 2016 the accused was in a highly disordered state and his capacity to reason was compromised.[132] She admitted that it was a possibility that he could not reason about a matter with a moderate degree of sense and composure.
[132] ts 300.

Has the State proved that the accused killed Mrs Beattie?

The State's case is that the accused killed Mrs Beattie by choking her. Mr Tooker on behalf of the State said that he used the word 'choke' in contrary distinction to smothering or strangulation. That is in the sense that smothering would be applying an object like a pillow over someone's face and strangulation would be using the hands to choke someone around the neck or using a ligature to strangle someone. By choke he meant a broad application of force that is widely distributed to the neck region. Mr Tooker said that in light of DNA evidence I should be satisfied beyond reasonable doubt that the accused had skin to skin contact with the neck area of Mrs Beattie.
I am satisfied beyond reasonable doubt that the accused killed Mrs Beattie in the sense that he applied a broad force in some manner so as to compress her neck. I agree with the State that the evidence proves that the accused did not smother Mrs Beattie, strangle her with his fingers alone or use a narrow ligature to strangle her. I am also satisfied beyond reasonable doubt that deceased did not fall against something which alone compressed her neck. Given the injuries to both sides of her neck I am satisfied beyond reasonable doubt that the accused physically applied force to one side of her neck at least.
The neck compression in conjunction with her gross intoxication with alcohol and to a lesser extent drugs caused her death. In this way the accused made a significant or substantial contribution to her death.
I accept that it is likely that he caused her death by exerting pressure with his hand or arm but given that there is a distinct lack of direct evidence about the mechanism by which he applied force to her neck, I am not prepared to find that he did so in any particular manner.
In addition to Dr Cooke's evidence the State relies on the admission made by the accused to Mrs Hatfull, the DNA evidence and the propensity evidence of Ms Jones to prove that the accused choked Mrs Beattie with skin to skin contact. I accept that those matters provide support for a conclusion that he used his hand or arm to apply pressure to Mrs Beattie's neck. However, I conclude that there are still other reasonable possibilities open on the evidence given that any broad application of moderate force for a few seconds could have caused the resulting injuries.
Mrs Hatfull, said that the accused told her that he had choked or strangled the girl or woman found at his house. She said it had something to do with her neck. She clearly could not remember the exact words that he had used. She was upset upon hearing his words so her recall may not be perfect. Further I am not satisfied that the accused was entirely rational at the time of the conversation. The admission does not appear to me to be an admission that he had used his hand or arm to apply pressure to Mrs Beattie's neck.
The accused's DNA on Mrs Beattie's neck and the upper portion of her top is consistent with any number of mechanisms for the application of force. It is also consistent with the accused touching Mrs Beattie after the application of force to her neck.
The propensity evidence from Ms Jones to the effect that the accused used his right forearm against her throat as he pushed her against the front door is some evidence supporting a conclusion that he may have done the same to Mrs Beattie, although not against a door it seems. Nevertheless the very different circumstances in which that assault happened as compared to the assault on Mrs Beattie does not persuade me that it is of great probative value in answering the question as to how the accused applied force to Mrs Beattie's neck.

Was the accused in a state of mental impairment at the time he killed Mrs Beattie?

I find that when the accused killed Mrs Beattie he was suffering from a psychosis which was the result of either schizophrenia (Dr Nielssen) or a schizophrenia‑like illness (Dr Wojnarowska). The psychiatrists did not agree on the name of his mental illness and I do not know which one of them described it by its correct name. However it is not necessary for me to decide on its name. Whatever his condition is called it caused a psychosis and it falls within the definition of mental illness in the Code.
This finding is based on the uncontroverted evidence of Dr Nielssen and Dr Wojnarowska. Their evidence is supported by the observations of witnesses who saw and heard the accused at the relevant times.
Schizophrenia or a schizophrenia‑like illness when it is accompanied by symptoms of psychosis falls within the meaning of 'a state of mental impairment' for the purpose of the Code s 27(1).

Did the accused's mental impairment deprive him of the capacity to understand what he was doing when he killed Mrs Beattie?

Neither Dr Nielssen (in his oral evidence) nor Dr Wojnarowska were of the opinion that the accused was deprived of the capacity to understand what he was doing when he killed Mrs Beattie. Both psychiatrists were of the opinion that the evidence fell short of providing a basis for the conclusion that he did not know that he was applying pressure to Mrs Beattie's neck and that to do so may harm her.
I am not satisfied that the accused has proven on the balance of probabilities that his state of mental impairment deprived him of the capacity to understand what he was doing when he killed Mrs Beattie.

Did the accused's mental impairment deprive him of the capacity to control his actions which killed Mrs Beattie?

Both Dr Nielssen and Dr Wojnarowska were of the opinion that the accused was deprived by his state of mental impairment of the capacity to control his actions. This is on the basis that the accused was in a highly aroused and disordered state at the relevant time.
Dr Nielssen appeared to be particularly persuaded of the lack of this capacity by the accused's later statements that he believed that the coffin cheaters were responsible for Ashden's death and he believed Mrs Beattie was a coffin cheater. However he also relied on three other factors to justify his opinion.
Dr Wojnarowska was more persuaded of the lack of this capacity by the effect of the accused's mental illness on the frontal lobe of his brain, this being the area which controls our impulses and behaviour and the accused's acute state of arousal.
Neither psychiatrist was of the opinion that the accused was an automaton or was suffering from any kind of seizure at the time he killed Mrs Beattie.

After giving the proper weight which is to be given to uncontradicted psychiatric evidence, I am satisfied on the balance of probabilities that the accused has proven that the psychosis (being a symptom of his schizophrenia or a schizophrenia‑like illness) deprived him of the capacity to control his actions which killed Mrs Beattie. In making this finding I have taken into account that Sir Samuel Griffith said that if because of mental disease a man is incapable of exercising the power of determination or choice, he should be treated on the same footing as man who does an act involuntarily; that is, he should be considered as being deprived of the capacity to control his actions.
I am not persuaded that the accused was deprived of this capacity simply because he had a psychosis. A person with a psychosis may still have the capacity to control their actions. It is the severity of the accused's psychosis which is persuasive. His actions and words around and including 4 November 2016 were very deluded, disorganised and bizarre. His mind which would normally control those words and actions was similarly disorganised and incapable of staying with a thought for a reasonable period of time. As a consequence he did not have the opportunity or capacity to decide whether for example a thought was the product of a delusion or an emotion caused by his psychosis such that he should choose not to do an act that was the result of that thought. In this way he acted without his own determination or choice.
Another matter of significance was the accused's highly aroused state. The thoughts of actions which were flitting through his mind were emotionally charged often with anger (as seen towards his mother also) and frustration and thus prone to make him volatile and to act violently towards things, animals or people. I take into account that a lack of capacity to control emotions (including anger) does not equate with a lack of capacity to control actions. Rather it is the combination of the manifestations of his psychosis which satisfies me on the balance of probabilities that at the time the accused killed Mrs Beattie he was incapable of exercising the power of determination or choice and thus the capacity to control his actions.

Did the accused's mental impairment deprive him of the capacity to know that he ought not do the acts which killed Mrs Beattie?

It is unnecessary for me to make a determination on this issue as I have found that the accused lacked the capacity to control his actions. Therefore I do not intend to come to a final determination on it.
In any event it is difficult to come to a final conclusion about this issue because there is a lack of evidence as to why the accused did what he did. Dr Nielssen relied heavily on the accused being deluded that the coffin cheaters were responsible for Ashden's death and that Mrs Beattie was a coffin cheater. In my view there is a lack of evidence to satisfy me on the balance of probabilities that this is why the accused did what he did although I accept that he was very deluded and disorganised in his thinking.
My conclusion that the accused lacked the capacity to control his actions is very close to a finding that he was without the capacity to know that he ought not do the acts which killed Mrs Beattie but it is not quite the same thing. The difference in this case is between an inability to stop, think and choose before acting on an impulse to act (incapacity to control actions) and stopping, thinking and choosing to act before acting but not being able to think rationally of the reasons which would lead ordinary people to consider whether the chosen act is right or wrong (incapacity to know that one not ought do the act). The latter ability is not absent simply because the first is absent. The circumstances may not arise where the second capacity, if it exists, can be exercised.[133]
[133] In June 2016 when the accused attacked his sister it seems that she was able to make him stop, think and choose whether to act. When he did so he stopped attacking her. This indicates that he retained the capacity to know that he ought not attack her.

Conclusion and verdict

For the above reasons the accused is not criminally responsible for his acts/actions which killed Mrs Beattie. I find the accused not guilty of the murder of Tanya Leah Beattie on account of unsoundness of mind and enter a verdict of acquittal on account of unsoundness of mind.[134] As required by law I make a custody order pursuant to the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 21(a).
[134] Criminal Procedure Act s 147(2).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Research associate to the Honourable Justice Jenkins
17 DECEMBER 2018