The State of Western Australia v Knock
[2020] WASC 246
•2 JULY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- KNOCK [2020] WASC 246
CORAM: DERRICK J
HEARD: 15 - 18 JUNE 2020
DELIVERED : 2 JULY 2020
FILE NO/S: INS 96 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
SARAH ANNE KNOCK
Accused
Catchwords:
Criminal law - Trial by judge alone - Murder - Insanity - Whether accused was mentally impaired - Whether accused lacked capacity to control actions - Whether accused lacked the capacity to know that she ought not to do the act - Whether the accused was intentionally intoxicated - Construction of s 28(1) and s 28(2) of the Criminal Code (WA)
Legislation:
Criminal Code (WA)
Criminal Code (Qld)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)
Result:
Accused found not guilty on account of unsoundness of mind
Custody order made
Category: B
Representation:
Counsel:
| Prosecution | : | Mr B E F Tooker |
| Accused | : | Ms K A Shepherd & Ms A M Taylor |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Kate King Legal |
Case(s) referred to in decision(s):
Evans v The State of Western Australia [2010] WASCA 34
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
Mustac v The Medical Board of Western Australia [2007] WASCA 128
R v Bromage [1991] 1 Qd R 1
R v Clough (No 2) [2010] QCA 120; [2011] 2 Qd R 222
R v Corbett [1903] St R Qd 246
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Kusu [1981] Qd R 136
R v Porter [1933] HCA 1; (1933) 55 CLR 182
R v Radford (1985) 142 SASR 266
R v Smith [1949] St R Qd 126
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
The State of Western Australia v Brown [No 3] [2013] WASC 349
The State of Western Australia v Daly [2019] WASC 386
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Jones [2018] WASC 395
The State of Western Australia v Lang [No 2] [2016] WASC 206
The State of Western Australia v Marotta [2018] WASC 329
The State of Western Australia v Siddique [No 2] [2016] WASC 358
Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254
DERRICK J:
Introduction
The accused is charged on an indictment dated 31 January 2020 that on or about 5 November 2018 at Armadale she murdered Jennifer Ruth Lanciano (the deceased). The deceased was the accused's aunty.
On 6 March 2020 Corboy J made an order that the accused be tried by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA).
The accused's trial took place before me on 15 ‑ 18 June 2020.
At the commencement of the trial the accused was arraigned on the charge and entered a plea of not guilty on account of unsoundness of mind.[1] Accordingly, the accused did not dispute that she had caused the death of the deceased.
[1] CPA, s 126(1)(d).
At trial the State disputed that the accused should be acquitted on account of unsoundness of mind. The State's position was that I should find the accused guilty of murder.
In light of the accused's plea, the evidence adduced at trial, the relevant provisions of the Criminal Code (WA) (Code) and the positions adopted by the parties at trial, the questions that arise for my determination are as follows:
1.Was the accused mentally impaired within the meaning of s 27(1) of the Code at the time that she did the act that caused the deceased's death?
2.If the accused was mentally impaired at the time that she did the act that caused the deceased's death, did her mental impairment deprive her of any of the capacities specified in s 27(1)?
3.If the accused was mentally impaired at the time that she did the act that caused the deceased's death and if her mental impairment did deprive her of one or more of the capacities specified in s 27(1), is she precluded from relying on the defence of insanity under s 27(1) because she intentionally caused herself to become intoxicated at the time that she did the act that caused the deceased's death within the meaning of s 28(2) of the Code?
If the first two of the above stated questions are answered in the affirmative and the third of the questions is answered in the negative, the accused must be found not guilty on account of unsoundness of mind. If all three of the above questions are answered in the affirmative the accused must, in light of admissions made by the accused, be found guilty of the charged offence of murder. The State's position at trial was that all three questions should be answered in the affirmative with the result that the accused should be found guilty of murder.
In order for me to answer the three questions that arise for my determination, it is necessary for me to first address and deal with a number of topics. The topics that I will address before turning to answer the three questions that arise for my determination are as follows:
1.The legal principles relating to trials by judge alone;
2.The nature of the evidence adduced at the trial;
3.The statement of agreed facts;
4.The admissions made by the accused;
5.The elements of the charged offence of murder;
6.The applicable legal principles relating to s 27(1) of the Code;
7.The applicable legal principles relating to s 28(1) and s 28(2) of the Code and the interaction between s 27(1), s 28(1) and s 28(2);
8.The applicable legal principles relating to the assessment of expert opinion evidence;
9.The accused's history of substance abuse;
10.The accused's history of mental health issues;
11.The evidence adduced as to the conduct of the accused in the days leading up to the alleged offence;
12.The evidence adduced as to the conduct of the accused at around the time of the alleged offence;
13.The evidence adduced as to the conduct of the accused while in police custody after her arrest for the alleged offence;
14.The evidence of the accused's assessment and treatment since her admission to the Frankland Centre;
15.The forensic evidence;
16.The evidence relating to the alcohol content of wine consumed by the accused on 4 November 2018;
17.The accused's evidence;
18.The psychiatric opinion evidence; and
19.The toxicology opinion evidence.
Trial by judge alone - legal principles
Section 120(1)(a) of the CPA provides that I may make any findings and give any verdict the jury could have made or given if the trial had been before a jury.
Section 120(2) of the CPA provides that my judgment must include the principles of law that I have applied and the findings of fact on which I have relied. It is therefore necessary for me to state at this point a number of important principles that I must apply in determining the charge.
Burden and standard of proof
The accused is presumed innocent of the charge that has been brought against her.
The burden of proving the accused's guilt is on the State.
The standard of proof that the State must achieve is proof beyond reasonable doubt. For the State to discharge its burden of proving the guilt of the accused it must prove beyond reasonable doubt that she is guilty of the charged offence. I cannot find the accused guilty of the charged offence unless the State proves to my satisfaction beyond reasonable doubt each element of the charged offence. If the State fails in this regard then the charge is not proven and the only proper verdict is one of not guilty.
Accused giving evidence
The accused gave and adduced evidence in this case. She did not have to give or adduce evidence. Consistently with what I have said about the presumption of innocence and the burden and standard of proof no accused person has to give or adduce evidence. But in this case the accused chose to both give and adduce evidence and, as a result, to submit herself to cross‑examination by the prosecutor.
The fact that the accused chose to give and adduce evidence does not in any way detract from the important principles of our system of law that the onus is on the State to prove the charge that it presents against the accused and that the accused is presumed to be innocent unless the charge is proved beyond a reasonable doubt.
Prejudice and sympathy
I must not allow prejudice or sympathy to play any part in my determination of the charge.
I must decide the case based on the evidence produced during the trial. It is my responsibility to ensure that whatever verdict I deliver is delivered solely on the basis of the evidence produced during the trial and not on any other matters.
I must assess the evidence dispassionately.
I must not guess or speculate about matters that are not in evidence or look for theories that are not supported by the evidence.
Publicity
I must disregard any media reports of the case.
Inferences
In a criminal trial there is no room for guessing, speculating, or looking for theories that are not supported by the evidence. However, I may draw inferences from facts that I find to have been established.
I must not, in respect of any matter on which the burden of proof lies on the State, draw an inference against the accused unless I am satisfied that it is the only inference that is reasonably available to be drawn. This is a reflection of the requirement that the State must prove the charge beyond reasonable doubt.
In relation to any facts from which I am considering drawing an inference against the accused I am not required to consider each fact in isolation. Rather, I must consider the facts as a whole to determine whether the inference is the only inference reasonably available.
The evidence adduced - summary
At a pre‑trial directions hearing held on 10 June 2020 counsel for the State and counsel for the accused informed me, in substance, that it had been agreed between the parties that a number of witness statements forming part of the prosecution brief and other specified items forming part of the prosecution brief (the specified items) could be tendered by the State with the accused's consent in the absence of the relevant witnesses. In addition, at the commencement of the trial counsel for the State and counsel for the accused informed me that a statement of agreed facts dated 12 June 2020 (the statement of agreed facts) had been prepared for tendering as an exhibit.[2]
[2] ts 39, 40, 15 June 2020.
Section 93 of the CPA provides that if an accused pleads not guilty to a charge on account of unsoundness of mind and the judge is satisfied that the only fact in issue is whether the accused is criminally responsible under s 27 of the Code, the judge may decide the issue on any evidence and in any manner the judge thinks fit, if the prosecutor consents and the accused does not object to the judge doing so and if it is in the interests of justice to do so. Having regard to s 93 and the positions taken by the parties, I was satisfied that it was in the interests of justice to receive into evidence the statement of agreed facts, the witness statements and the specified items for the purpose of determining whether the accused was criminally responsible under s 27 of the Code. I therefore permitted the statement of agreed facts, the witness statements and the specified items to be tendered as exhibits. The statement of agreed facts was tendered by the accused.
In addition to tendering the witness statements and the specified items, the State called the following witnesses to give evidence at trial:
1.Mr Enzo Lanciano;
2.Ms Tianii Knock;
3.Senior Constable Tashwhile Eksteen;
4.Detective Sergeant Glenn Moore; and
5.Dr Adam Brett, consultant psychiatrist.
Dr Brett was called in rebuttal of the accused's case.
As I have already pointed out, the accused elected to give evidence. In addition, the accused called Dr Victoria Pascu, consultant forensic psychiatrist, and Dr Michael Robertson, chemist, pharmacologist and forensic toxicologist, to give evidence.
The statement of agreed facts
The statement of agreed facts[3] (omitting footnoted references to materials that form the basis of a number of the asserted facts) is in the following terms:
[3] Exhibit 3.
BACKGROUND
1.[The accused] is the niece of [the deceased].
2.The accused's mother, Elizabeth Whittaker (nee Knock), is the sister of the deceased.
3.At the time of her death the deceased was married to Enzo Lanciano.
4.Enzo Lanciano and the deceased lived at 25 Crawley Road in Armadale.
5.Enzo Lanciano and the deceased are and were Jehovah's witnesses.
6.Mr Lanciano's elderly father, Vincenzo Lanciano, lived next door at 23 Crawley Road, Armadale.
7.Vincenzo Lanciano was sometimes referred to as 'Mr Le' or 'Mr L'.
8.For medical reasons, including a minor stroke in 2012 and suffering cancer, Mr Vincenzo Lanciano required constant care including the deceased and others staying overnight at his house to assist with his ongoing care.
9.The deceased acted as Mr Vincenzo Lanciano's primary carer.
10.The accused stayed with Enzo Lanciano and the deceased at 25 Crawley Road for a period of time in approximately 2017.
11.About March 2018 the accused left Perth and travelled to Carnarvon where she remained until her return to Perth in late October 2018.
12.The accused is the mother of 8 children, none of whom resided with her during 2017 and 2018.
13.In 2018 the accused's four youngest children were living with a family in Narrogin.
14.In 2018 the accused's mother lived on her daughter's farm between Brookton and Pingelly.
EVENTS OF 25 OCTOBER 2018 TO 2 NOVEMBER 2018
15.On 25 October 2018, after arriving in Perth from Carnarvon, the accused went to the deceased's home in Armadale.
16.The accused was looking for a place to stay and Mr Lanciano and the deceased agreed that the accused could stay with them.
17.Mr Lanciano and the deceased also had another niece, Tianii Knock, living with them at the time.
18.The accused has a history of mental illness.
19.The deceased encouraged and tried to get the accused to see a doctor during the time that the accused was staying with the deceased and Mr Lanciano.
20.The accused refused to do so, with the exception of seeing a GP on one occasion.
21.The accused repeatedly requested that the deceased take her to Brookton so that she could see her mother, or alternatively to take the accused to Brookton Highway on the outskirts of the metropolitan area to enable the accused to hitchhike to Brookton.
22.The accused's repeated requests of the deceased to take her to see her mother resulted in arguments between the accused and the deceased, such as that recorded on the mobile phone of Tianii Knock.
SATURDAY 3 NOVEMBER 2018
23.On 3 November 2018 the accused argued with the deceased about being permitted to go in the car with the deceased.
24.The deceased and the accused had an argument with the accused wanting to go home to see her mother.
25.The deceased refused to give the accused a lift to see her mother.
26.Extracts of this conversation were recorded by Tianii Knock on her mobile phone.
SUNDAY 4 NOVEMBER 2018
27.On Sunday 4 November 2018, apart from attending a church meeting, the deceased spent the day at both 23 and 25 Crawley Road, Armadale.
28.Enzo Lanciano spent most of the day at home doing renovations, but did visit his father's residence from time to time during the day.
29.The accused was at 25 Crawley Road in the morning but left and didn't return until the afternoon. Upon her return she spent a short period of time at 25 Crawley Road, before going next door and staying there.
30.During the afternoon Giovanna Suckling visited her father, Vincenzo Lanciano, at 23 Crawley Road, Armadale.
31.Giovanna Suckling had travelled from Narrogin to Armadale together with Ms Suckling's uncle, Antonio Lanciano, and his partner, Achara Lanciano.
32.Ms Suckling is the sister of Enzo Lanciano and is the sister‑in‑law of the deceased.
33.The accused arrived at 23 Crawley Road whilst Ms Suckling and the others were there.
34.During the course of the afternoon the accused asked Ms Suckling for a lift to Narrogin to see her kids but this was declined.
THE EVENING OF SUNDAY 4 NOVEMBER 2018
35.On the night of Sunday 4 November 2018 the deceased took responsibility for the care of Vincenzo Lanciano.
36.This meant that the deceased slept in Vincenzo Lanciano's house at 23 Crawley Road on that evening.
37.Mr Enzo Lanciano went to his father's house around 6.30 pm to have dinner with the deceased and his father. Enzo Lanciano did not see the accused at that time.
38.Tianii Knock received a text message from the deceased's mobile phone at 6.59 pm on 4 November 2018 which stated: 'Sarah has past out she is fast asleep at Mr Le'.
39.After dinner Enzo Lanciano, his father and the deceased watched TV before Enzo Lanciano left for work at approximately 9 pm.
40.Enzo Lanciano's work commitments that evening were between 9 pm and 11 pm.
41.Enzo Lanciano finished work at about 11.00 pm, after which he returned to his home at 25 Crawley Road in Armadale.
42.Enzo Lanciano parked his vehicle in the carport at 25 Crawley Road next to the deceased's Holden Commodore and went to bed in the master bedroom.
MONDAY 5 NOVEMBER 2018
43.After being woken by the sound of a car horn, Enzo Lanciano found his wife's body in a bedroom at 23 Crawley Road, Armadale.
44.Mr Lanciano called 000 and informed the operator that his wife had been murdered.
45.The time of the 000 call was 4.41 am on 5 November 2018.
POLICE AND AMBULANCE ATTENDANCE AT THE SCENE
46.Police were tasked to attend 23 Crawley Road Armadale at 4.44 am.
47.Police arrived at the scene at 4.48 am.
48.The sun had just begun to rise.
49.The accused had left the premises by the time police arrived.
50.Four police officers entered the house at 23 Crawley Road where they observed Enzo Lanciano performing CPR on the deceased.
51.Police moved the deceased from the bed to the floor where they took over CPR from Enzo Lanciano until paramedics arrived from St John's Ambulance and took over the CPR.
52.Police established a Protected Forensic Area at 4.52 am; the outer boundary of that cordon was extended at 5.00 am.
53.At 5.15 am the deceased was moved onto a stretcher and placed onto a trolley and into an ambulance.
54.The deceased was taken by ambulance to Armadale Hospital where she was put on life support.
55.The deceased never recovered and life extinct was declared at 6.00 am on 6 November 2018.
ARREST OF THE ACCUSED
56.The accused was arrested by police walking north along Albany Highway at about 5.30 am on 5 November 2018.
57.She was taken to Armadale Police Station but was non‑compliant and difficult to manage.
58.CCTV footage from Armadale Police Station shows that the accused repeatedly said to the police 'I'm scared, I'm scared'.
59.The accused was transferred from Armadale Police Station to Perth Watch House.
60.Police were unsuccessful in attempting to obtain a blood sample from the accused. The nursing notes noted that the accused had collapsed veins and her behaviour meant that it was not possible for a blood sample to be taken from her.
61.She refused to participate in a police interview.
ADMISSION TO THE FRANKLAND CENTRE
62.The accused appeared in Perth Magistrates Court on 6 November 2018 and a hospital order was imposed.
63.The accused was transported to the Frankland Centre where she has remained ever since.
POST MORTEM EXAMINATION - CAUSE OF DEATH
64.A post mortem examination was performed by Dr Jodi White at the State Mortuary on 8 November 2018.
65.The cause of death was determined to be hypoxic ischaemic encephalopathy due to neck compression.
66.In Dr White's opinion the deceased's death was caused by manual strangulation (use of hands).
In light of the third of the previously identified questions for determination in this case, it is worth making the point in relation to par 38 of the statement of agreed facts that the agreed fact is that Ms Tianii Knock received from the deceased at 6.59 pm on 4 November 2018 the text message in the terms specified, not that the accused had in fact 'passed out' and was asleep at Mr Vincenzo Lanciano's house at that time. Having said this, and as will be apparent from my recitation later in these reasons of the accused's material evidence, the accused did not dispute that she was asleep at Mr Vincenzo Lanciano's house by 7.00 pm on 4 November 2018.
Admissions
At trial the accused made the following admissions pursuant to s 32 of the Evidence Act 1906 (WA):[4]
1.On 5 November 2018 at Armadale the accused applied blunt force (act of strangulation) to the deceased;
2.At the time of the act of strangulation the accused intended to kill the deceased; and
3.As a result of the act of strangulation by the accused the deceased died.
[4] Exhibit 2.
The elements of the offence of murder
The elements of the offence of murder each of which the State must prove beyond reasonable doubt in order to prove that the accused committed the charged offence are as follows:
1.The accused was the offender, that is, it was the accused who did the things which the State asserts constituted the offence;
2.The accused killed the deceased;
3.The killing of the deceased by the accused was unlawful; and
4.The accused intended to cause the death of the deceased, or intended to cause a bodily injury to the deceased that was, objectively, of such a nature as to endanger, or be likely to endanger, the deceased's life.
Any person who causes the death of another person, either directly or indirectly, is deemed to have killed that person.[5]
[5] Code, s 270.
As I have already indicated, the accused admitted at trial that she killed the deceased by strangling her.
It is unlawful to kill any person unless the killing is authorised, justified or excused by law.[6] The killing of a person will not be unlawful if the accused is not criminally responsible for the killing having regard to s 27 of the Code.
[6] Code, s 268.
As is apparent from my statement of the fourth element of the charged offence, the State must prove that at the time of doing the act that caused the death of the deceased, the accused actually had an intention to cause the death of the deceased, or to cause a bodily injury to the deceased that was, objectively, of such a nature as to endanger or be likely to endanger the deceased's life. Thus, whether a killing constitutes the offence of murder depends upon the intention of the accused at the relevant time.
When a defence of insanity is raised under s 27 of the Code to a charge of murder, as in this case, it is necessary to decide if the accused is criminally responsible for causing the death of the deceased before deciding if the State has proved that the accused had one of the requisite intentions for murder. The issue of insanity falls to be determined before the issue of intent.[7] If the insanity defence is not established, it then becomes necessary to consider whether the State has proved that the accused had one of the requisite intentions.
[7] Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 [25], [55] ‑ [57], [103].
Insanity - applicable legal principles
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.[8] The accused has the burden of proving that she was not of sound mind at the time that she did the act which is alleged to constitute the charged offence. The accused must prove that she was not of sound mind on the balance of probabilities.[9] If the accused does not prove that she was not of sound mind on the balance of probabilities the State will have proved the unlawfulness element of the charged offence beyond reasonable doubt.
[8] Code, s 26.
[9] R v Porter [1933] HCA 1; (1933) 55 CLR 182.
Whether the accused proves that she was not of sound mind depends on the application of s 27 of the Code. Section 27 of the Code is in the following terms:
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(2)A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
As is evident from its terms, s 27 contains two bases for relieving a person of criminal responsibility. The first of these is where the person is in a state of mental impairment that deprives them of one of the relevant capacities. The second only arises where a person has the relevant capacities but nonetheless has a delusion which affects some specific matter that is relevant to the charge. In this case only s 27(1) is relevant with the accused's case being that her mental impairment deprived her of the capacity to control her actions and the capacity to know that she ought not to do the act which caused the deceased's death.
Mental impairment - mental illness
Section 1(1) of the Code defines 'mental impairment' to mean an 'intellectual disability, mental illness, brain damage or senility'.
Section 1(1) of the Code also defines the term 'mental illness'. The definition is in the following terms:
[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.
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.[10]
[10] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 49, 60.
In The State of Western Australia v Jones[11] Jenkins J made the point that the definition of 'mental illness' contained in s 1(1) of the Code reflects statements made by King CJ in R v Radford[12] about the meaning of the expression 'disease of the mind' which is used in the common law concept of insanity. Her Honour summarised the statements of King CJ in the following terms which I respectfully adopt:[13]
1.'Disease of the mind' is synonymous with 'mental illness';
2.A temporary disorder or disturbance of an otherwise healthy mind caused by external factors is not properly regarded as a disease of the mind;
3.Major mental illness or psychoses such as schizophrenia are clearly diseases of the mind as are physical 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'.[14]
Capacity to control actions
[11] The State of Western Australia v Jones [2018] WASC 395 [43].
[12] R v Radford (1985) 142 SASR 266, 274 ‑ 275.
[13] The State of Western Australia v Jones [43].
[14] In R v Falconer (54, 60, 76, 82) King CJ's comments as summarised by Jenkins J were generally approved of. When Falconer was decided s 27 of the Code was differently worded. The subsequent amendments to the Code are consistent with King CJ's statement of principles, although the definition of 'mental impairment' is broader than that of 'disease of the mind' which was considered by King CJ.
A person is deprived of the capacity to control their actions if by reason of their mental impairment they are deprived of the ability to make a conscious decision to do the relevant act; to exercise the power of choice to act.[15] A person is not deprived of the capacity to control their actions merely by reason of having a significantly impaired capacity to resist an impulse or emotion.[16]
Capacity to know ought not to do the act
[15] R v Falconer (39 ‑ 40); The State of Western Australia v Brown [No 3] [2013] WASC 349 [44]; The State of Western Australia v Siddique [No 2] [2016] WASC 358 [51]; The State of Western Australia v Marotta [2018] WASC 329 [39] ‑ [45].
[16] The State of Western Australia v Marotta [2018] WASC 329 [45].
As to what is meant by the phrase 'capacity to know that he ought not to do the act or make the omission', in R v Porter[17] Dixon J said the following:
We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.
[17] R v Porter (189 ‑ 190).
Dixon J went on to say that what is meant by 'incapacity' in this context is 'not that he reasoned wrongly, or that being a responsible person he had … unsound ideas, but that he was quite incapable of taking into account considerations which go to make right or wrong'.[18]
[18] R v Porter (190).
In Stapleton v The Queen[19] the High Court held that it is not, in order for a person to possess the capacity to know that he ought not to do an act or make an omission, necessary for the person to know that the act or omission is wrong in the sense of contrary to law. What is required is that the accused knows right from wrong according to reasonable standards, not legality from illegality.[20] However, the court went on to observe:[21]
The truth perhaps is that, from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong (his insane judgment even treating the act as one of inexorable obligation or inescapable necessity) he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.
[19] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358.
[20] Stapleton v The Queen (367, 375).
[21] Stapleton v The Queen (375).
The leading decision in this State on the meaning of the phrase 'capacity to know that he ought not to do the act or make the omission' is Evans v The State of Western Australia.[22] In relation to this issue McLure P said:[23]
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.
[22] Evans v The State of Western Australia [2010] WASCA 34.
[23] Evans v The State of Western Australia [30] ‑ [31].
Wheeler JA, with whom Owen JA agreed, said:[24]
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. As the High Court observed, from a practical point of view it often may not matter much, because in relation to serious offences the two ideas 'are not easily separable' (at 375). However, in cases where, as here, the distinction may arise, it should be made. The second principle is that the capacity which must be found to be lacking is not merely a capacity to appreciate, in some abstract sense, that others would view the act as wrong. Rather, it is a capacity of the particular accused either to discern the difference between moral good and evil, or to 'think rationally' of the reasons which would lead ordinary people to consider the act to be right or wrong.
In my view, the question in this case made it imperative that her Honour explain to the jury the two principles which I have described above. For completeness, I would add that it was not, in my view, necessary for her Honour to adopt the formula contended for by ground 2(b) of the grounds of appeal. 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.
[24] Evans v The State of Western Australia [59] ‑ [61].
In my opinion the position can, in light of the above referred to authorities, be stated as follows: a person will be deprived of the capacity to know that they ought not to do the act or make the omission if they have a complete incapacity to understand, appreciate or comprehend that the act or omission is wrong according to ordinary standards (as distinct from unlawful).
It needs to be borne in mind that it is dangerous to test a person's capacity to know that they ought not to do an act or make an omission by reference to the standards of persons who do not suffer from a mental illness.[25]
[25] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138; Evans v The State of Western Australia [34], [63].
Intoxication and insanity - applicable legal principles
Section 28 of the Code provides:
(1)Section 27 applies to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means.
(2)Section 27 does not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not.
(3)When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.
The meaning of 'intoxication'
In The State of Western Australia v Herbert[26] Jenkins J made the following statements in relation to the meaning of 'intoxication' for the purposes of s 28(1) and s 28(2), and the meaning of 'disordered' for the purposes of s 28(1):
[26] The State of Western Australia v Herbert [2017] WASC 101 [58] ‑ [59].
In The State of Western Australia v Brown [No 3] [2013] WASC 349 and The State of Western Australia v Lang [No 2] [2016] WASC 206, I considered the meaning of the Criminal Code s 28. I see no reason to change the views which I expressed in those cases. In Brown, I said:
'[T]he Macquarie Dictionary defines "intoxication" as including:
1.inebriation; drunkenness;
2.Pathol. Poisoning;
3.the act of intoxicating; and
4.overpowering action or effect upon the mind.
The Shorter Oxford Dictionary defines "intoxication" as including:
1.The action of poisoning; the state of being poisoned; an instance of this.
2.The action of stupefying with a drug or alcoholic liquor; the making drunk or inebriated; the condition of being so stupefied or made drunk.
3.fig.
(a)The poisoning of the moral or mental faculties; a cause of this.
(b)The action or power of highly exciting the mind; elation beyond the bounds of sobriety.
…
In my view, the most appropriate definition of "intoxication" is "overpowering action or effect on the mind".
…
The Macquarie Dictionary defines "disordered" to mean "in confusion" or "mentally ill". The online Oxford English Dictionary defines "disordered" relevantly to mean:
1.put out of order, thrown into confusion; disarranged, confused, irregular; and
2.affected with bodily or mental disorder; out of health; deranged; morbid.
In my view, "disordered" in s 28 means confused or disarranged. Thus, put in other words, the Criminal Code s 28 states that s 27 applies to a person whose mind is confused or disarranged by the overpowering action or effect on the mind of a drug, if the intoxication is caused without intention on his part. It is clear from what I have said that it is unnecessary for the purpose of s 28(1) that a large amount of the drug has to be consumed [45] ‑ [49].'
In Lang I said:
'Using the same definition of intoxication, s 28(2) says that s 27 does not apply to a person who has intentionally caused his mind to be intoxicated; that is, subject to the overpowering action or effect of a drug or liquor.
I am of the opinion that s 28(2) refers to a person who has "become intoxicated" at the time of the commission of the relevant acts.
The common law and cases on s 28 and similar statutory provisions do not suggest that an accused who has intentionally caused themselves at any point in the past to become intoxicated cannot rely on the defence of insanity. Neither does the State submit that is the meaning of the section. Rather, the State submits that s 28(2) says that the defence of insanity does not apply to a person who has intentionally caused himself to become intoxicated at any time in the past and that past intentional intoxication has contributed in some way to the deprivation of a relevant capacity.
In my opinion that is not the law. … That is, intentional intoxication disentitles, even a mentally impaired person, from relying on the defence of insanity. However, it is intentional intoxication at the time of the commission of the offence which the law is concerned about. In this respect I am of the view that s 28(2) reflects the common law as stated by Lord Birkenhead LC in Director of Public Prosecutions v Beard [1920] AC 479:
"But drunkenness is one thing and the diseases to which drunkenness leads are different things, and if a man by drunkenness brings on a state of disease which causes such a degree of madness, even for a time, as would have relieved him from responsibility if it had been caused in any other way, then he would not be criminally responsible."
Thus, if an accused "brings on" mental impairment by past intoxication with drugs or liquor, s 28(2) does not disentitle him from relying on the defence of insanity, unless he is intentionally intoxicated at the time he does the relevant acts ...
On the other hand, I accept that the state of intoxication referred to in s 28(2) may be longer than the time the relevant accused subjectively experienced the effects of the drugs or liquor. In this respect, I agree with the conclusion of the Queensland Court of Appeal in R v Clough [2010] QCA 120 that the ordinary meaning of intoxication is wide enough to encompass more than comparatively short-term elation or stimulation.
It is a question of fact whether the accused was intoxicated and the accused's experience of the effect of the drugs or liquor may be only one of a number of matters relevant to that determination. Nevertheless, the drugs or liquor must still be found to have had an overpowering action or effect on the accused's mind at the time of the commission of the relevant acts, in order for him to be "a person who has intentionally caused himself to become intoxicated" so that s 28 (2) can apply and s 27 does not apply [36] ‑ [42].'
Both the State and the accused submitted that I should adopt and apply the definition of 'intoxication' as stated by Jenkins J in The State of Western Australia v Herbert. The State submitted that I should also adopt and apply the meaning given by Jenkins J in that case to the term 'disordered'.
I respectfully adopt the above statements made by Jenkins J in The State of Western Australia v Herbert in relation to the meaning of 'intoxication' for the purposes of s 28(1) and s 28(2). Therefore, a person's 'mind is disordered by intoxication' within the meaning of s 28(1) if their mind is disordered by the overpowering action or effect of a drug or alcohol.[27] Similarly, a person 'becomes intoxicated' within the meaning of s 28(2) if their mind becomes subject to the overpowering action or effect of a drug or alcohol.
[27] Although Jenkins J's comments were made in relation to the meaning of 'intoxication' for the purposes of s 28(1) and s 28(2) they are, in my view, equally applicable to the meaning of 'stupefaction' for the purposes of the sections. There is, in my view, no material difference between the meanings of these two terms as used in the sections. My references to 'intoxication' throughout the remainder of these reasons should be read as encompassing 'stupefaction'.
For reasons that I will elaborate upon shortly, I take a different view to that expressed by Jenkins J in The State of Western Australia v Herbert in relation to the meaning of 'disordered' as used in s 28(1).
When must the state of intoxication exist?
It is important to recognise that in order for s 28(2) to preclude reliance on s 27(1), the intoxication (that is, the overpowering action or effect on the mind) must be found to exist at the time that the person did the relevant act or made the relevant omission.[28] The drugs or alcohol must be found to have had an overpowering effect on the person's mind at the time of the doing of the relevant act or the making of the relevant omission in order for the person to be 'a person who has intentionally caused himself to become intoxicated' within the meaning of s 28(2). Thus if a person 'brings on' a mental impairment by past intoxication with drugs or alcohol, s 28(2) will not disentitle them from relying on s 27(1).
The intention element
[28] The State of Western Australia v Lang [No 2] [2016] WASC 206 [42]; The State of Western Australia v Herbert [59]; The State of Western Australia v Daly [2019] WASC 386[39].
In both s 28(1) and s 28(2) the notion of 'intention' is linked to the state of intoxication; that is, the result of ingesting drugs or alcohol rather than the act of doing so. Accordingly, the fact that a person has voluntarily consumed drugs or alcohol which results in them becoming intoxicated will not of itself be sufficient to bring them within the terms of s 28(2). It is only where the person voluntary consumes drugs or alcohol with the intention of causing themselves to become intoxicated, and they become so intoxicated at the time of doing the relevant act or making the relevant omission, that s 28(2) can operate to preclude them from relying on s 27(1).
It is a question of fact whether a person was at the relevant time intentionally intoxicated. The person's experience of the effect of the alcohol and/or drugs may be only one of a number of matters relevant to the determination of this question.[29]
[29] The State of Western Australia v Lang [No 2] [42].
The onus is on an accused to prove on the balance of probabilities that they did not intentionally cause themselves to become intoxicated.[30]
Does intentional intoxication preclude reliance on s 27(1) in circumstances where the person proves that their mental impairment deprived them of one of the specified capacities?
[30] The State of Western Australia v Herbert [57]; The State of Western Australia v Daly [37], [81].
It is at this point necessary to address the question whether a person who has intentionally caused themselves to become intoxicated is precluded by s 28(2) from relying on s 27(1) even where the person has proved on the balance of probabilities that at the time of doing the relevant act or making the relevant omission they were in such a state of mental impairment as to be deprived of one of the capacities specified in s 27(1)? This question cannot be properly addressed without also addressing the interaction between insanity under s 27(1) and unintentional intoxication under s 28(1).
In the State of Western Australia v Herbert[31] Jenkins J addressed the issue of the interaction between s 27(1) and s 28. In relation to this issue her Honour said the following:[32]
[31] The State of Western Australia v Herbert [2017] WASC 101.
[32] The State of Western Australia v Herbert [60] ‑ [67].
In R v Clough [2010] QCA 120, the Queensland Court of Appeal considered the relationship between unsoundness of mind and intoxication. Muir JA made the following statement which is applicable to the Code s 27. When considering it, the Code term 'mental impairment' should be read for 'mental disease or natural mental infirmity'. His Honour said:
'It can readily be seen from the plain words of s 27(1) that the sub‑section applies only if it is the "state of mental disease or natural mental infirmity" which deprives the person of one of the specified capacities. Where a person is deprived of a relevant capacity by the effects of intoxication on a pre‑existing condition, the pre‑requisites for release from criminal responsibility are not engaged. If s 27(1) did apply in those circumstances, it would be inconsistent in its application with s 28 (unless construed as contended for by counsel for the appellant). Such a construction could also produce some unpalatable and/or unexpected results. For example, a person could obtain the benefit of the section where knowingly deleterious drug or alcohol consumption acted on a relatively minor mental disease to cause the loss of a relevant capacity [26].'
I agree with his Honour's reasoning, so that the Code s 27 only applies where the accused's state of mental impairment, which by definition does not include temporary intoxication by drugs and/or alcohol, deprives the accused of one of the relevant capacities. The onus is on the accused to prove that any mental impairment he suffered deprived him of a relevant capacity.
The question then is what role does the Code s 28 play? It also can be 'readily seen from the plain words of' the Code s 28(2) that the subsection says that the Code s 27 does not apply to an accused who has intentionally caused himself to become intoxicated. Thus even where an accused can prove that his mental impairment deprived him of a relevant capacity, he will not be able to avail himself of the insanity defence if he was voluntarily intoxicated at the time he did the relevant acts. As the onus is on the accused to prove that he falls within the Code s 27, the onus must be on the accused to prove that he was not voluntarily intoxicated.
The accused submits that an alternative construction of the Code s 28 is that s 28(1) enlarges the application of s 27 to include 'a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means'. He submits that the purpose of s 28(2) is to clarify that such a person does not include 'a person who has intentionally caused himself to become intoxicated'.
On this construction of s 28(2), a person who was concurrently mentally impaired and intentionally intoxicated could still avail himself of the defence in s 27, as long as he could prove that his mental impairment (as opposed to his intoxication or a combination of mental impairment and intoxication) deprived him of a relevant capacity.
There are two difficulties with this construction of s 28(2). The first is that it would be odd if s 28(2) excluded a person from relying on the defence of insanity by reason of intentional intoxication, when s 27 and s 28(1) do not say or suggest that intoxication is a basis for the defence. That is, s 27 does not include a person who is deprived of a relevant capacity by virtue of unintentional or intentional intoxication. Intoxication is irrelevant to determining whether the accused is not guilty of unsoundness of mind [sic] under s 27, in the sense that the accused must prove that he was mentally impaired (not intoxicated) and that his mental impairment deprived him of a relevant capacity. If the accused is correct, s 28(1) explicitly extends the application of s 27 to a person who is unintentionally intoxicated, in the sense that it provides that an accused may avail himself of the defence of insanity if his mind was disordered by unintentional intoxication and his unintentional intoxication alone or, possibly, in combination with a mental impairment deprived him of a relevant capacity. On this construction s 28(2) is superfluous.
The second is that s 28(2) refers to s 27; not s 28(1). If the intention was to exclude a person who was intentionally intoxicated from the extension of the defence of insanity provided for in s 28(1), s 28(2) would say that 's 28(1) does not include a person who has intentionally caused himself to become intoxicated'. The reference in s 28(2) to s 27 supports the view that a person falling within the description in s 28(2) cannot avail themselves of the defence of insanity, irrespective of whether his intoxication deprived him of relevant capacity.
Although I agree with the State's construction of s 28(2), my decision on this point of construction is not determinative of my verdicts as I have found that the accused has failed to prove that his mental impairment deprived him of a relevant capacity.
Thus it would appear from Jenkins J's above cited statements that in her Honour's opinion s 27(1) is not, in any circumstances, capable of applying to a person who is, as a result of intoxication, deprived of one of the capacities specified in the section. In her Honour's view, and despite the existence of s 28(1), 'intoxication is irrelevant to determining whether the accused is not guilty [on account of] unsoundness of mind under s 27, in the sense that the accused must prove that he was mentally impaired (not intoxicated) and that his mental impairment deprived him of a relevant capacity'. In her Honour's view s 28(1) does nothing more than stipulate that a person who is at the relevant time unintentionally intoxicated is not precluded from relying on s 27(1) provided that they can prove that at the time of being intoxicated they were also mentally impaired and that the mental impairment deprived them of one of the capacities specified in the section.
The State submits that Jenkins J's interpretation of s 28(1) is correct. The State submits that s 28(1) seeks to clarify the application of s 27(1) not expand its operation.[33] The State submits that the words 'disordered by intoxication' are a reference to intoxication in the way that intoxication is 'normally understood' and that the words are not a reference back to the loss of the three capacities specified in s 27(1).[34]
[33] ts 380 ‑ 383, 18 June 2020.
[34] ts 380 ‑ 383, 18 June 2020.
Jenkins J's interpretation of s 28(1) is, in my opinion, clearly contrary to the interpretation given to s 28(1) in a number of earlier Queensland authorities.[35] Nonetheless, for reasons of judicial comity I should adopt and apply Jenkins J's interpretation of s 28(1) unless I am convinced the interpretation is wrong.[36] With respect, I am so convinced.
[35] R v Corbett [1903] St R Qd 246, 249; R v Smith [1949] St R Qd 126, 130; R v Kusu [1981] Qd R 136, 141-142; R v Bromage [1991] 1 Qd R 1, 8.
[36] Mustac v The Medical Board of Western Australia [2007] WASCA 128 [38].
Section 28(1) provides that 'Section 27 applies to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part …' (emphasis added). The use of the words 'whose mind is disordered by' is important. The use of these words makes clear that s 28(1) does more than merely stipulate that a person who is at the relevant time unintentionally intoxicated is not precluded from relying on s 27(1) provided that they can prove that at the time of being intoxicated they were also mentally impaired and that the mental impairment deprived them of one of the capacities specified in the section. If this was the intended meaning of s 28(1) there would be no need for the words 'whose mind is disordered by' to appear in the section. Indeed, there would be no need for the section at all because the fact of the involuntary intoxication would be of no relevance to the determination of whether a person was not criminally responsible on account of unsoundness mind by reason of s 27(1). However, by providing that s 27 'applies to the case of a person whose mind is disordered by intoxication or stupefaction', s 28(1) makes clear that it is the disorder of the mind by unintentional intoxication (that is, by the unintentional overpowering of the mind by a drug or alcohol) that renders s 27 applicable, not just the unintentional intoxication itself. Further, given that the section has to be read in light of the terms of s 27, since it is that section that s 28(1) is applying to the person, it is readily apparent that the reference to the 'disordered' mind of the person is intended to be, and should be read as, a reference to a person who is deprived of one of the capacities specified in s 27(1). In other words, if a person, at the time of doing the relevant act or making the relevant omission, is deprived of one of the capacities specified in s 27(1) by reason of intoxication caused without intention on the person's part, then s 27(1) applies to the person and the person is not criminally responsible for the act or omission on account of unsoundness of mind.
The construction of s 27(1) and s 28(1) that I favour is the construction that has been given to the sections in the above noted Queensland authorities. Thus as long ago as 1903 Griffith CJ in the case of R v Corbett, in the course of directing a jury on a charge of manslaughter, said the following:[37]
It was suggested by counsel that if the prisoner was so intoxicated that he did not know what he was doing at the time, he is not criminally responsible for [G's] death. That is not the law, and never was the law. Drunkenness is never a defence unless it amounts to unsoundness of mind. No one can escape liability merely because he is intoxicated. If you come to the conclusion that the prisoner was so intoxicated that his mind was so absolutely disordered, and he was thus deprived of capacity to understand what he was doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act with which he is charged, you may be able to find him not guilty on the ground of insanity. But if he intentionally caused himself to become intoxicated that defence is not open to him. It is, however, a defence if his mind was so disordered as to be unsound within the meaning of s 27 of the Criminal Code, and if this condition was caused by intoxication which arose without intention on his part.
[37] R v Corbett (249).
In construing s 27(1) and s 28(1) in the way that she does, Jenkins J places significant reliance on the decision in R v Clough (No 2)[38] (cited in her Honour's judgment as R v Clough). Her Honour clearly considers the decision in R v Clough (No 2) to support her construction of s 28(1).
[38] R v Clough (No 2) [2010] QCA 120; [2011] 2 Qd R 222; The State of Western Australia v Herbert [60] ‑ [61].
In R v Clough (No 2) the appellant was found guilty after a trial by judge alone of murdering his wife. He appealed against his conviction. One of his grounds of appeal was that the trial judge had erred in her application of s 27, s 28(2) and s 304A of the Criminal Code (Qld) (Qld Code).[39]
[39] R v Clough (No 2) [1]. Section 304A of the Qld Code is concerned with diminished responsibility and is not relevant to the present discussion.
The appellant had a long history of drug abuse. He had a psychotic disorder for which he was being treated.[40]
[40] R v Clough [2].
The trial judge found that at the time of the homicide:[41]
1.the appellant was suffering from a psychotic disorder;
2.the appellant was psychotic;
3.methylamphetamine that the appellant had recently and voluntarily consumed was continuing to have a deleterious effect on his mental state;
4.the appellant was deprived of the capacity to know that he ought not do the act that caused his wife's death;
5.the appellant would not have been deprived of the capacity to know that he ought not do the act but for the continuing effects on his mental state of voluntarily consumed methylamphetamine; and
6.there would not have been a substantial impairment of the appellant's capacity to know that he ought not do the act but for the continuing effects of the methylamphetamine.
[41] R v Clough [6]
The trial judge found that 'intoxication' in s 28(2) of the Qld Code included the secondary effect of methylamphetamine consumption from which the appellant was suffering at the time of the killing.[42] She was satisfied that the appellant had intentionally caused himself to be intoxicated with methylamphetamine and could therefore not rely on s 27(1) of the Qld Code to absolve himself from criminal responsibility for the killing.[43]
[42] R v Clough (No 2) [9].
[43] R v Clough (No 2) [9].
The wording of s 27 of the Qld Code was for present purposes substantially identical to s 27 of the Code. The wording of s 28(1) and s 28(2) of the Qld Code was as follows:[44]
(1)The provisions of section 27 apply to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his or her part by drugs or intoxicating liquor or by any other means.
(2)They do not apply to the case of a person who has, to any extent intentionally caused himself or herself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not and whether his or her mind is disordered by the intoxication alone or in combination with some other agent. (emphasis added)
[44] R v Clough (No 2) [24].
The italicised words in the above quoted s 28(2) of the Qld Code do not, of course, appear in s 28(2) of the Code.
On the appeal the argument advanced by the appellant was that the words 'some other agent' used in s 28(2) were limited to alcohol or drugs and that therefore s 28(2) did not, by its terms, preclude a person who had an underlying mental illness that had been exacerbated by intoxication such that the person was deprived of one of the relevant capacities, from relying on s 27(1).[45] In other words, the argument that the court was considering was whether the words 'some other agent' were incapable of including an underlying mental disorder such that s 28(2) dealt only with a person who had a disordered mind due to intoxication and nothing else.[46]
[45] R v Clough (No 2) [21], [27].
[46] R v Clough (No 2) [21].
The court rejected the appellant's argument and concluded that the words 'other agent' referred to, or at least included, 'a state or condition which operates to produce an effect, rather than only another toxic substance'.[47] It was in this context that Muir JA (with whom Fraser JA and Applegarth J agreed)[48] made the statements quoted by Jenkins J in par 60 of her judgment in The State of Western Australia v Herbert. However, when these statements are read in the context of the facts of the case (a case in which it was not in dispute that the appellant's state of intoxication was intentionally induced), the precise terms of the section that the court was considering and the particular issue that was before the court for determination it is, in my view, tolerably clear that Muir JA was not by his statements intending to convey that where a person is deprived of a relevant capacity by the effects of unintentional intoxication on a pre‑existing condition the pre‑requisites for release from criminal responsibility under s 27(1) are not engaged (or to put it another way, was not intending to convey that unintentional intoxication is irrelevant to determining whether the accused is not guilty on account of unsoundness of mind under s 27(1)). Rather, the point that Muir JA was, on my reading of his judgment, seeking to make was that if s 27(1) was construed to apply in circumstances where a person is deprived of a relevant capacity by the effects of intentional intoxication on a pre‑existing condition this would be inconsistent with s 28(2) which expressly provides that s 27(1) does not apply to a person who has intentionally caused themselves to become intoxicated even in circumstances where the person's mind is disordered not solely by the intoxication but by a combination of the intoxication with 'some other agent' (which, as I have pointed out, on the court's interpretation was not limited to some other toxic substance but included a state or condition which operates to produce an effect). That this was the point being made by Muir JA is apparent from not only his Honour's reference to the 'unpalatable result' of a person obtaining the benefit of s 27(1) where 'knowingly deleterious drug or alcohol consumption acted on a relatively minor mental disease to cause the loss of a relevant capacity' (emphasis added), but also the following statements made by his Honour in the paragraph of his judgment immediately following the paragraph cited by Jenkins J:[49]
The finding that the appellant's intoxication (if it existed contrary to the appellant's argument) was intentional was not challenged. Nor was the finding in subparas (d) and (e) of para [73] of the Reasons. Consequently, s 28(2) would clearly operate to prevent the appellant obtaining the benefit of s 28(1) unless the words 'some other agent' in s 28(2) were incapable of including an underlying mental disorder such as the condition from which the appellant suffered. (emphasis added)
[47] R v Clough (No 2) [29].
[48] R v Clough (No 2) [36], [37].
[49] R v Clough (No 2) [27].
Muir JA's reference to the 'benefit of s 28(1)' is an obvious reference to the fact that in the situation where the intoxication is unintentional, s 28(1) operates to render s 27(1) applicable to a person who is, by reason of the state of intoxication, deprived of one of the capacities specified in the section even in circumstances where the person was deprived of the relevant capacity by the effect of intoxication on a pre-existing condition.
Accordingly, for these reasons I do not consider that the statements made by Muir JA in R v Clough (No 2) do in fact provide support for Jenkins J's interpretation of s 27(1) and s 28(1).
I turn to s 28(2).
As is apparent from the above cited pars 62 and 65 ‑ 66 of Jenkins J's judgment in The State of Western Australia v Herbert, in her Honour's view the effect of s 28(2) is that if a person is intentionally intoxicated at the time of doing the relevant act or making the relevant omission, they are precluded from relying on s 27(1) even if they can prove not only that the state of intoxication did not deprive them of one of the capacities specified in s 27(1), but also that they were, at the same time as being intoxicated, in a state of mental impairment and that the mental impairment deprived them of one of the specified capacities. In other words, on her Honour's interpretation of s 28(2) intentional intoxication (that is, an intentional causing of the mind to be subject to the overpowering action or effect of a drug or alcohol), regardless of whether or not the intoxication, as opposed to a mental impairment, is the substantial or material cause of the person being deprived of one of the capacities specified in s 27(1), precludes the person from relying on s 27(1). Her Honour's interpretation of s 28(2) has been followed and applied by at least one other judge of this Court.[50] Moreover, it appears to be consistent with the penultimate sentence of the above cited portion of the direction given by Griffith CJ in R v Corbett as well as with statements made in the other Queensland authorities that I have cited (although in these cases the question whether intentional intoxication precludes a person from relying on s 27(1) even in circumstances where the person can prove that a mental impairment, as opposed to intoxication, was the substantial or material cause of the person being deprived of one of the capacities specified in s 27(1), was not the focus of attention).
[50] The State of Western Australia v Daly [38], [81] ‑ [94].
The State urges me to accept as correct Jenkins J's interpretation of s 28(2). The State submits that the section must be interpreted on its terms, that it refers to intoxication per se, and that it does not on its terms speak about the relative contribution of intoxication and mental impairment on the loss of capacity.[51] The State submits that if it was parliament's intention that s 27(1) should apply to a person who, despite having intentionally caused themselves to become intoxicated, is able to prove that they were at the relevant time mentally impaired and that the mental impairment was the substantial cause of the loss of one or more of the capacities specified in s 27(1), then this intention would have been reflected more clearly in the wording of the section.[52]
[51] ts 380 ‑ 383, 18 June 2020.
[52] ts 380 ‑ 383, 18 June 2020.
I have carefully considered the reasoning and analysis of Jenkins J in the State of Western Australia v Herbert in relation to the meaning of s 28(2). Despite her Honour's reasoning and analysis there is, in my respectful opinion, a good argument for concluding that the wording of s 28(2) does not have the effect identified by her Honour and that the section, when read in light of s 28(1) and on its proper construction, provides only that if a person, at the time of doing the relevant act or making the relevant omission, is deprived of one of the capacities specified in s 27(1) by reason of intentional intoxication, then s 27(1) does not apply and the person cannot escape criminal responsibility for the act or omission. Thus on this interpretation of the section, if a person can prove on the balance of probabilities that their mental impairment as opposed to intoxication was the substantial or material cause of the loss of one of the capacities specified in s 27(1), the fact that the person was intentionally intoxicated at the time of doing the relevant act or making the relevant omission would not preclude them from relying on s 27(1). This was the interpretation of s 28(2) that the accused contended I should adopt.[53]
[53] ts 402 ‑ 403, 18 June 2020.
The construction of s 28(2) suggested in the previous paragraph reflects the policy that if a person intentionally intoxicates or stupefies themselves to such an extent that they are deprived of one or more of the capacities specified in s 27(1), they cannot expect to be excused from criminal responsibility for any act or omission done or omitted to be done even though they were deprived of the capacity.
For reasons of judicial comity I should adopt and apply Jenkins J's interpretation of s 28(2) unless I am convinced that the interpretation is wrong. Despite the opinion I have expressed above in relation to the alternative interpretation of s 28(2) I am not, given the plain wording of the section, convinced that Jenkins J's interpretation of the section is wrong. I therefore intend (not without some reservation) to adopt and apply Jenkins J's interpretation of s 28(2). I make two points in this regard. First, s 28(2) does not provide that s 27 does not apply to a person whose mind is disordered by intentionally caused intoxication. The fact that the section does not so provide does, in my view, lend support to Jenkins J's interpretation of the section. Second, it is likely to be a rare case in which a person who has intentionally caused themselves to become intoxicated (that is, has intentionally caused their mind to be subject to the overpowering action or effect of a drug or alcohol) will be able to prove that it was their mental impairment as opposed to the intoxication that deprived them of one of the capacities specified in s 27(1).
I note that in pars 65 and 66 of her judgment in The State of Western Australia v Herbert Jenkins J appears to advance two arguments in support of her interpretation of s 28(2). Both arguments, so far as I can discern, are founded on what is in my respectful view her Honour's incorrect interpretation of s 28(1). It necessarily follows that I do not find the arguments persuasive.[54] Rather, and as I have stated, my conclusion that I am not convinced that Jenkins J's interpretation of s 28(2) is wrong is founded on the plain wording of the section (that is, the words 'Section 27 does not apply to the case of a person who has intentionally caused himself to become intoxicated') and on nothing else.
[54] I take Jenkins J's reference in [66] to 'the extension of the defence of insanity provided for in s 28(1)' to be a reference to the construction of s 28(1) which I favour but which her Honour rejected.
The significance of uncontradicted expert opinion evidence
In Hone v The State of Western Australia the Court of Appeal considered the significance of uncontradicted expert psychiatric opinion evidence where the issue of insanity is raised by an accused. In that case Miller JA said the following:[55]
[55] Hone v The State of Western Australia [124] ‑ [125]. See also the comments made by Steytler P at [6], [13].
Neither a jury nor a judge sitting alone are bound to accept and act upon expert evidence. But where there is no evidence to contradict that evidence, a verdict cannot be given contrary to it. The principles were well summed up by Roden J in Hall (1988) 36 A Crim R 368, where a number of relevant cases were reviewed. Roden J said:
'Juries are not bound to accept and act upon expert evidence. Nevertheless they are not entitled to disregard it capriciously. These two propositions have found expression and support in a line of authorities developed in England with regard to the defences of insanity and diminished responsibility.
In Rivett (1950) 34 Cr App R 87, Lord Goddard CJ, said (at 94):
"The second matter for emphasis is that it is for the jury and not for medical men of whatever eminence to determine the issue. Unless and until Parliament ordains that this question is to be determined by a panel of medical men, it is to a jury, after a proper direction by a judge, that by the law of this country the decision is to be entrusted."
The Court of Criminal Appeal was there dealing with medical evidence relating to a defence of insanity.
Eight years later, when dealing with a defence of diminished responsibility, Lord Goddard showed the other side of the coin, in Matheson [1958] 1 WLR 474; 42 Cr App R 145, saying (at 478; 151):
"While it has often been emphasised, and we would repeat that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors' evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be 'a true verdict in accordance with the evidence'."
In Bailey (1977) 66 Cr App R 31, another diminished responsibility case, Lord Parker CJ said (at 32):
"The court has said on many occasions that of course juries are not bound by what the medical witnesses say, but at the same time they must act on evidence, and if there is nothing before them, no facts and no circumstances shown before them which throw doubt on the medical evidence, then that is all that they are left with, and the jury, in those circumstances, must accept it."
In both Matheson and Bailey, manslaughter verdicts were substituted for jury verdicts of guilty of murder, on the basis that the medical evidence was "all one way", and there was no other material which would justify its rejection. It was otherwise in Walton [1978] AC 788; 66 Cr App R 25. The Privy Council was there considering a murder conviction where a diminished responsibility defence had been rejected. In the judgment, which was delivered by Lord Keith of Kinkel, there are observations that "the jury were entitled to regard (the medical evidence) as not entirely convincing", and "their Lordships have come to be of opinion that in all the circumstances the jury were entitled not to accept as conclusive the expression of opinion by Dr Bannister". After a consideration of both Matheson and Bailey, the following statement of principle was made:
"These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the defendant before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence."
The effect of those decisions is accurately summarised in Professor Smith's commentary on Walton in (1977) Crim LR 747 at 748:
"If the medical evidence is all one way and in favour of the accused and there is nothing in the facts and surrounding circumstances which could lead to a contrary conclusion, then a verdict against the medical evidence cannot be sustained. In the present case there were facts and circumstances in addition to the medical evidence and the jury was therefore entitled to reject that evidence." (370 ‑ 371)'
Allen J summarised the position as follows:
'There is no rule of law that a verdict of guilty will be quashed as unsafe in any case in which the verdict is inconsistent with medical evidence called for the accused - even where no medical evidence has been called for the Crown. On the other hand there is no rule of law that an appellate court will not quash such a verdict - refusing to do so because it is open to a jury to reject the opinion of any expert witness. Each case is unique. The totality of the evidence must be weighed: Walton [1978] AC 788; 66 Cr App R 25. In assessing medical evidence a multitude of factors must be taken into account - including the standing of the expert, whether he expresses his opinion with conviction or with hedging, whether the opinion expressed in its nature seems reasonable or fanciful, whether it incorporates assumptions not founded upon the evidence given, and whether the evidence given, upon which the opinion is based, is to be believed. It is clearly settled that it can be unreasonable for a jury to reject medical testimony: Walton; Chester [1982] Qd R 252; 5 A Crim R 296. (380 ‑ 381)'
In short, although neither a jury nor a judge sitting alone is bound to accept and act upon expert evidence, if there is no evidence, fact or circumstance that contradicts the expert evidence, a verdict cannot be given that is contrary to the evidence.
The accused's history of illicit substance use[56]
[56] Report of Dr Pascu dated 26 February 2019 [38] ‑ [43] (Exhibit 42); Report of Dr Brett dated 30 November 2019, [62] ‑ [66] (Exhibit 45).
The accused has at various times during her life and for extended periods used illicit substances and alcohol.
The accused starting using cannabis at the age of 13, although she has reported using this drug only irregularly over the three to four years prior to the alleged offence.
The accused started using methylamphetamine at around the age of 19. She has done so ever since at least up until a few months before the alleged offence.
The accused's history of mental health issues
Prior to the alleged offence the accused had a history of mental health issues mainly in the context of illicit drug and alcohol use. A summary of the relevant history is as follows:[57]
[57] Exhibit 42 [19] ‑ [22]; Exhibit 45 [32] ‑ [54].
1.The accused was diagnosed with depression at the age of 16 and prescribed an antidepressant;
2.In 2002 the accused was referred to the Esperance Community Mental Health Service by her general practitioner. The accused had anxiety and was noted to be in a violent relationship. The accused's medication at the time included an antidepressant, an antipsychotic and a sedative. She was noted to have alcohol dependency;
3.On 1 May 2002 the accused was referred to the Narrogin Mental Health Service. On referral it was noted that the accused had been trialled on a number of medications and that her compliance had been poor. It was noted that she had significant substance abuse issues, involving alcohol, cannabis and amphetamines (used intravenously). The accused was not on any medication at the time;
4.In 2002 the accused was assessed by the Peel Mental Health Service. She was noted to have moderate depression and borderline personality traits;
5.On 21 May 2006 the accused was discharged from Collie Hospital. She was three months pregnant. She reported fleeting suicidal ideas and had mild obsessive compulsive symptoms;
6.On 29 June 2011 the accused attended the Narrogin Mental Health Service. She was assessed following expressed suicidal ideation. She had prepared a rope. She was taking Diazepam (Valium), a sedative, at the time;
7.On 16 October 2018 the accused presented to Carnarvon Hospital after being referred by Carnarvon Family Services. She was noted to have a positive urinary drug screen for methylamphetamine and marijuana. She reported that she 'just did not feel right', that she felt anxious and that she could not explain what was wrong. She requested to be sent to Graylands. The clinical impression was that her anxiety and agitation was secondary to recent drug use. She did not appear to have a form of psychiatric illness. When the formulation of a management plan was explained to the accused she took her belongings and left the hospital;
8.On 17 October 2018 the accused underwent a mental health triage assessment in Carnarvon. It was noted that her intravenous drug use needed to be addressed. Long term rehabilitation was recommended;
9.On 26 October 2018 the accused underwent a triage assessment by Armadale Mental Health Services by telephone. The deceased had reported concerns about the accused. The accused was noted to be disorientated. She reported that she had last used drugs two weeks previously. She appeared vague and disorientated. She requested medication to help with her condition. She admitted to being afraid but not paranoid.
In addition to the above, in November 2017 the accused described to her mother how the Crown Casino had inserted a microchip into her neck. The accused expressed to her mother a belief that she and her family were being watched from the sky. She became paranoid about mobile phones.[58]
[58] Exhibit 45 [48].
The evidence of the conduct of the accused in the days leading up to the alleged offence
During the trial the State adduced evidence of the conduct of the accused in the days leading up to her alleged commission of the charged offence including on 4 November 2018. The evidence came from Mr Enzo Lanciano (Enzo), Ms Tianii Knock (Tianii), Ms Giovanna Suckling (Giovanna), Mr Antonio Lanciano (Antonio), Ms Achara Lanciano (Achara) and Mr Vincenzo Lanciano (Vincenzo).[59] The evidence of Giovanna, Antonio, Achara and Vincenzo was adduced by the tendering with the consent of the accused of the witness statements that they had provided to the police and which formed part of the prosecution brief.[60]
Enzo Lanciano
[59] I will from this point onwards use the first names of the civilian witnesses for ease of reference and distinction. No disrespect is intended by my use of their first names.
[60] The witness statements were part of the collection of witness statements that I allowed into evidence under s 93 of the CPA. The State also read into evidence and tendered a statement made by Mr Wayne Dohnt dated 3 April 2020 (Exhibit 14). However, Mr Dohnt's evidence was limited to him saying that at one point while he was at Mr Lanciano's house between 3.00 pm and 5.00 pm on the afternoon of 4 November 2018 he heard raised voices coming from inside the house, that one of the voices sounded like the voice of the deceased and that he did not recognise the second voice.
Enzo's evidence as to the accused's behaviour in the days leading up to the alleged offence including on 4 November 2018 was as follows.[61]
[61] ts 52 ‑ 92, 15 June 2020.
The accused stayed with him and the deceased (his wife) at their house at 25 Crawley Road in Armadale for approximately a week and a half prior to the deceased's death. He and the deceased made one of the two front bedrooms of their house available to the accused. The front bedroom was next to the front door.
The accused probably only slept in the house for two of the nights during the period of time for which she stayed with him and the deceased. The accused came and went as she wanted and did her own thing.
He remembers a conversation that he had with the accused while she was staying with him and the deceased. During the conversation the accused spoke to him about obtaining private health cover for her mental health. She did not want to go through the public health system because she was worried about the public health system and the Department for Child Protection (DCP) obtaining her mental health records. During the conversation the accused also spoke to him about the problems she had in Carnarvon, the problems she had with Centrelink and her relationship problems.
During the time that the accused stayed with him and the deceased he did not see anything untoward in the relationship between the accused and the deceased. There was one incident when he came home from work and there was something going on between the accused and the deceased. He does not know what the discussion was about. He just agreed with what the deceased was saying and the issue disappeared.
Is the accused precluded from relying on the defence of insanity under s 27(1) because she intentionally caused herself to become intoxicated at the time that she did the acts that caused the deceased's death within the meaning of s 28(2) of the Code?
The questions that must be addressed in determining if s 28(2) operates to preclude the accused from relying on s 27(1), bearing in mind that I have decided for reasons of judicial comity to adopt Jenkins J's interpretation of s 28(2) as stated by her Honour in The State of Western Australia v Herbert, are as follows:
1.Has the accused proved on the balance of probabilities that she was not intoxicated at the time that she killed the deceased; that is, has the accused proved that her mind was not subject to the overpowering action or effect of alcohol at the time that she killed the deceased?
2.If the accused has failed to prove on the balance of probabilities that she was not intoxicated at the time that she killed the deceased, has she proved on the balance of probabilities that she did not intentionally cause herself to become intoxicated?
The State, although it concedes that the accused was mentally impaired at the time of killing the deceased and that the mental impairment deprived the accused of the capacity to know that she ought not to do the act that caused the deceased's death, contends, for reasons that I will refer to further below, that the accused has failed to prove that she did not intentionally cause herself to become intoxicated at the time of killing the deceased; that is, has failed to prove that she did not intentionally cause her mind to become, at the time of killing the deceased, subject to the overpowering action or effect of alcohol. The tension inherent in the adoption of such an approach is readily apparent.
I note in relation to the above questions that at trial the accused, consistently with the case law to which I have referred earlier in these reasons, accepted that she bore the burden of proving that she was not precluded by s 28(2) from relying on s 27(1).[132]
Has the accused proved that she was not intoxicated at the time that she killed the deceased?
[132] ts 403 ‑ 404, 18 June 2020.
In order to answer the question posed it is necessary for me to make findings of fact in relation to the amount of alcohol that the accused consumed on 4 November 2018, and also in relation to the time or times at which she consumed the alcohol.
I note at the outset that the accused gave her evidence in a very flat, monotone and emotionless way. As Dr Pascu testified, the accused presented as a person who suffers from a chronic psychotic illness. It was therefore difficult for me to draw from the accused's demeanour any firm conclusions one way or the other as to her overall credibility. All that I am able to say in this context is that I did not detect from the way the accused presented or answered questions any overt or obvious signs that caused me to have concerns about her credibility.
The accused's evidence, to which I have already referred, was that at around 11.00 am she drank approximately half of the bottle of McWilliam's Smooth Tawny port, that at about 3.30 pm she consumed the remaining 2 cm of port that was left in the bottle, and that at about 3.30 pm to 4.00 pm she had a few sips from a bottle of Vincenzo's homemade wine. There is no dispute that the bottle of port that the accused drank from was the bottle of port that was on 5 November 2018 found in the recycling bin at the rear of Vincenzo's house. Nor is there any dispute that the bottle of homemade wine that the accused drank from was the unlabelled bottle that was on 5 November 2018 found in the recycling bin at the rear of Vincenzo's house.
The State submits that I should reject the accused's evidence as to her consumption of alcohol on 4 November 2018, and find that she drank all of the bottle of port and all of the bottle of wine. The State further submits that if I find that the accused did drink all of the bottle of port and all of the bottle of wine I should also find, on the basis of Dr Robertson's evidence, that she was intoxicated at the time that she killed the deceased.[133] The State concedes that if I find that the accused only drank the amount of port and wine that she asserts that she drank I should find that she was not intoxicated at the time that she killed the deceased.[134]
[133] ts 400, 18 June 2020.
[134] ts 400, 18 June 2020.
I note that although it is for the accused to prove on the balance of probabilities that she was not intoxicated at the time that she killed the deceased, it is not for the accused to prove on the balance of probabilities that she did not drink all of the bottle of port and all of the bottle of wine. Given that it is the State that is asserting that I should on all the evidence find that the accused did drink all of the bottle of port and all of the bottle of wine, it is the State that bears the burden of satisfying me (not to any particular standard) of this asserted fact.
There is, of course, no direct evidence that the accused consumed all of the bottle of port and all of the bottle of wine. Nonetheless, the State advances a number of contentions which it submits, when considered in conjunction with each other, should lead me to find that the accused did drink all of the bottle of port and all of the bottle of wine. The contentions advanced by the State can be summarised as follows:
1.The statements made by the accused to Dr Pascu in February 2019 and to Dr Brett in November 2019 amount to admissions that she consumed a larger amount of alcohol than the amount she admitted to consuming in her evidence;[135]
[135] ts 387, 18 June 2020.
2.When the bottle of port and the bottle of wine were found by the police in the recycling bin at the rear of Vincenzo's house they were empty. The most obvious explanation for the bottles being empty is that the accused had drunk the entirety of their contents;[136]
3.The accused's evidence that she tipped out what she thought was left in the bottle of port does not make sense. If the accused bought the bottle of port because she wanted to drink the port to make herself feel better, more relaxed and safer, it does not make sense that she would, having drunk approximately half of the bottle, tip out what she thought was the remainder. Nor does it make sense that she would then put the bottle in her bag;[137]
4.In her evidence the accused provided conflicting explanations for tipping out the port, namely that she was at the time doing all sorts of strange things,[138] that she did not feel like drinking the rest of the port and did not want to keep it for later,[139] and that she did not want to rely on the port to make her feel better and wanted to get to the bottom of why she was feeling scared.[140] The provision by the accused of these conflicting explanations reflects adversely on the credibility of her evidence;
5.The accused's evidence that she only had a few sips of the wine does not make sense. Having just obtained the wine there would be no reason for her to have only a few sips and then tip it out;[141]
6.In her evidence the accused provided conflicting explanations for tipping out the wine, namely that she did not want to drink the rest of the wine and wanted to lay down,[142] that she was doing a lot of things because she had schizophrenia,[143] that after having a few sips of the wine she felt relaxed enough and did not need any more[144] and that she wanted to have her bearings about her.[145] The provision by the accused of these conflicting explanations reflects adversely on the credibility of her evidence;[146]
7.The accused's evidence that she tipped the wine out under the lemon tree in the rear yard of Vincenzo's house is inconsistent with the evidence of officer Eksteen that he did not see any large pools of red liquid during his forensic examination of 23 Crawley Road;[147]
8.The evidence of Enzo was that the accused was joyful and in good spirits as opposed to being in a depressed state;[148]
9.The evidence of Tianii was that the accused appeared drunk;[149]
10.The accounts that the accused provided to Dr Pascu in February 2019 and to Dr Brett in November 2019 as to the amount of alcohol she consumed on 4 November 2018 were significantly different to the accounts that she provided to them in her later interviews with them and in her evidence. The differences in the accounts reflect adversely on the credibility of the accused's evidence as to the amount of alcohol she consumed. This is particularly so given that because her mental state had over time improved she developed a better ability to understand her legal situation and the relevance of intoxication to her ability to rely on the defence of insanity;[150] and
11.The accused's evidence as to why she drove the deceased's car back to 23 Crawley Road after having killed the deceased, namely to collect her bags, lacks credibility and the lack of credibility of this evidence reflects adversely on her credibility overall, particularly the credibility of her evidence relating to her alcohol consumption.[151]
[136] ts 387 ‑ 388, 18 June 2020.
[137] ts 388, 18 June 2020.
[138] ts 241, 16 June 2020.
[139] ts 241 ‑ 242, 16 June 2020.
[140] ts 242, 16 June 2020.
[141] ts 388, 18 June 2020.
[142] ts 222, 14 June 2020.
[143] ts 246, 14 June 2020.
[144] ts 246, 14 June 2020.
[145] ts 246, 14 June 2020.
[146] ts 398 ‑ 399, 18 June 2020.
[147] ts 389 ‑ 390, 18 June 2020.
[148] ts 392, 18 June 2020.
[149] ts 392, 18 June 2020.
[150] ts 394 ‑ 396, 18 June 2020.
[151] ts 399 ‑ 400, 18 June 2020.
In response to the State's above advanced contentions I make the following observations.
I accept that the accused's conduct, as described by her, comprised of her pouring out at least part of the bottle of port and pouring out the majority of the bottle of wine does not on the face of it appear logical. However, it must be borne in mind that the accused, at the time of engaging in this conduct, was acutely unwell. She was psychotic. Her actions on the day in question cannot be judged by reference to what might be expected from an ordinary reasonable person. Further, as to the suggestion that it does not make sense that the accused, on her account, after pouring the port out put the bottle in her bag, the fact is that such conduct was entirely consistent with her delusional belief system, namely that she could not leave any rubbish anywhere because she thought that this would enable her to be tracked down through the microchip in her neck.
I accept that some of the accused's answers as to her reasons for disposing of some of the port and most of the wine were not entirely consistent. However, it is, in my view, necessary, in assessing the importance of these inconsistencies to make allowance for the fact that the accused is still suffering from a chronic mental illness. In addition, the distinct impression I gained from watching and listening to the accused give her evidence, particularly during cross‑examination, was that she perceived repeated questioning on a particular topic as demonstrating the questioner's dissatisfaction with her previous answer and as giving rise to the need for her to give a different answer to the same question. This, in my view, was particularly evident when she was being cross‑examined as to her reasons for pouring out the port. In short, the inconsistencies in some of the answers given by the accused to which the State draws attention do not cause me to take an adverse view of the accused's credibility.
I do not consider that the fact that the bottle of port and the bottle of wine when found in the recycling bin were empty is of significance. The fact that the bottles were empty is equally consistent with the evidence given by the accused.
I do not accept the State's submission that if the accused had poured most of the bottle of wine under the lemon tree at the rear of Vincenzo's house signs of this having occurred would have been apparent, or would have been noticed, by the forensic officers who carried out the forensic examination of 23 Crawley Road. Officer Eksteen's evidence went no further than establishing that the thorough forensic examination conducted of 23 Crawley Road did not uncover any 'large pools of red liquid'. The lemon tree, as is revealed by the video recording of the scene taken by officer Eksteen at the beginning of the forensic examination of 23 Crawley Road,[152] is planted in the lawn area at the rear of the premises. Moreover, it appears from viewing the video that the area directly under the tree is slightly sandy and not covered with the full thickness lawn that exists elsewhere throughout the rear yard. This being the case, and as a matter of common sense, if the wine was poured onto the porous surface under or around the base of the lemon tree on the afternoon of 4 November 2018 there would not be any 'large pool of red liquid' left by the time of the forensic examination which was conducted at some time after 10.00 am the next day. Indeed, in my view any residual signs of red wine poured by the accused under or around the base of the lemon tree on the afternoon of 4 November 2018 would have disappeared by the time that the forensic examination of 23 Crawley Road occurred.
[152] Exhibit 4.
I do not, for reasons that I will expand upon below when I turn to deal with Dr Robertson's evidence, consider that Enzo's evidence as to the way that the accused was acting during the time that he spent talking to her on the afternoon of 4 November 2018 provides positive support for the contention that she had by the end of his conversation with her drank all of the bottle of port.
Similarly, I do not, for reasons that I will also expand upon below, consider that Tianii's evidence as to the way that the accused was acting on 4 November 2018 provides positive support for the contention that the accused drank all of the bottle of port and all of the bottle of wine.
In relation to the statements made by the accused to Dr Pascu and Dr Brett in February 2019 and November 2019 respectively, and the alleged changes in her accounts, I make the following points.
First, I do not accept that the statements made by the accused to Dr Pascu in February 2019 and to Dr Brett in November 2019 can be construed as amounting to admissions by her that she drank the quantity of port and wine that the State asserts that she did or even a greater quantity of port and wine than she admitted to drinking in her evidence. The accused's statement to Dr Pascu in February 2019 that she remembered drinking 'quite a bit' is not inconsistent with the accused's evidence as to how much port and wine that she drank on 4 November 2018 and can in no way be construed as an admission that she drank all of the bottle of port and all of the bottle of wine. Similarly, the accused's statements to Dr Brett in November 2019 that she was drinking a bottle of wine, that she went on to drink an unknown quantity of a bottle of home brewed wine, and that she could not remember how much wine in total she drank is not inconsistent with the accused's evidence as to the quantity of port and wine that she consumed on 4 November 2018 and cannot be construed as an admission to having drunk all of the bottle of port and all of the bottle of wine.
Second, I do not accept that the statements that the accused made to Dr Pascu in February 2019 and to Dr Brett in November 2019 in relation to the quantity of alcohol that she drank on 4 November 2018, to which I have just referred, are in fact inconsistent with the statements that she made to each of them in their later interviews with her and in her evidence. The accused's later statements as to the quantity of alcohol that she drank on 4 November 2018 are more detailed than her earlier statements. However, they are not inconsistent with the earlier statements.
Third, the evidence given by both Dr Pascu and Dr Brett establishes that there is an explanation for the accused being able to recently provide a more detailed account of how much alcohol she consumed on 4 November 2018, the explanation being that as her psychotic condition has improved with treatment she has been able to retrieve from her laid down memories more details of the events of the day in question. It should be noted in this regard, as Dr Pascu pointed out in her evidence, that the accused's recently improved or more detailed recollections have not been limited to the issue of alcohol consumption but have extended to all aspects of the events leading up to, surrounding, and following her killing of the deceased. The accuracy and truthfulness of these additional recollections is not challenged.
Finally, in relation to the State's submission concerning the accused's explanation for returning to 23 Crawley Road in the deceased's car, I do not consider that the accused's evidence in this regard was sufficiently implausible as to reflect adversely on the credibility of other aspects of her evidence, most specifically her evidence as to the extent of her alcohol consumption. The accused was at the relevant time in a psychotic and heightened emotional state. In these circumstances I do not find it difficult to accept, even taking into account that she had apparently moved her bags from near Vincenzo's computer to the garage area, that the accused forgot to take the bags with her when she went to 25 Crawley Road to obtain the accused's car. Nor, given the accused's delusional belief system and the importance of the bags to her within that belief system, do I find it difficult to accept that she, on realising that she did not have her bags with her, drove back to 23 Crawley Road to collect them.
In summary, in my view none of the contentions advanced by the State provide a sound basis for taking an adverse view of the accused's credibility or for making a positive finding that the accused did drink all of the bottle of port and all of the bottle of wine.
In any event, there are, in my view, two good reasons for accepting the accused's evidence as to the quantity of alcohol that she consumed on 4 November 2018.
First, apart from Enzo, none of the people who were present at either 23 Crawley Road or 25 Crawley Road on the afternoon of 4 November 2018 saw the accused drinking. None of Giovanna, Antonio and Achara, who I am satisfied on the basis of Giovanna's evidence were at Vincenzo's house until at least 3.30 pm (and probably a little later), saw the accused drinking any wine. Further, Vincenzo, who I am satisfied spent some time speaking to the accused after Enzo had spoken to her and after Giovanna, Antonio and Achara had left his house, did not see the accused drinking any wine. I acknowledge that none of Giovanna, Antonio and Achara were constantly watching the accused or even paying any significant attention to her. Nonetheless, if the accused had consumed all of the bottle of homemade wine over a period of time following the completion of her conversation with Enzo, as opposed to having only a few sips out of the bottle, it is reasonable to expect that one or more of Giovanna, Antonio, Achara and Vincenzo would have seen her drinking the wine at some point during the afternoon.
The second reason for accepting the accused's evidence as to the quantity of alcohol that she consumed on 4 November 2018 is that the evidence adduced from other witnesses as to how the accused was acting during their interactions with her on the afternoon of that day is, when considered in light of the uncontradicted evidence of Dr Robertson, broadly consistent with the accused's account of events and totally inconsistent with the suggestion that she consumed all of the bottle of port and all of the bottle of wine. This statement requires some further elaboration.
Dr Robertson's evidence was, as I have already stated, that if the accused drank half the bottle of port (equating to six standard drinks) plus an additional 100 mL of the port (equating to the 2 cm in the bottom of the bottle) plus 60 mL of the homemade wine (representing a few sips), her BAL at 4.00 pm, 5.30 pm and 6.30 pm, using the average metabolism rate of 0.015% per hour,[153] would have been 0.13%, 0.1% and 0.09% respectively. According to Dr Robertson, most people with a BAL of around 0.1% - 0.12% or higher will typically experience an excitement phase with one or more signs of frank intoxication.
[153] Given the accused's height and weight at the relevant time and the available evidence of her history of alcohol use and abuse, there is not a sufficient basis for adopting anything other than the average rate of metabolism in her case. Neither the State nor the defence argued to the contrary.
Dr Robertson's evidence was also that if the accused had drunk all of the bottle of port and all of the bottle of homemade wine prior to 6.30 pm her BAL at 7.00 pm, using the average rate of metabolism of 0.015% per hour, would have been 0.38%. Further, on Dr Robertson's evidence a person with a BAL of 0.38% would be profoundly intoxicated and, if not in a coma or a deep sleep, would present with confusion and a possible inability to walk and talk.
It may be accepted that if the accused had consumed all of the bottle of port and all of the bottle of wine by some time prior to 6.00 pm on 4 November 2018 her BAL at 6.00 pm may not have peaked and might not have been quite as high as 0.38%. Nonetheless, it is quite clear from Dr Robertson's evidence that if the accused had drank all of the bottle of port and all of the bottle of wine her BAL at around 6.00 pm would still have been very high and close to 0.38%. In other words, she would have presented as being profoundly intoxicated.
Against the background of Dr Robertson's evidence it is necessary to return to the evidence of the witnesses who interacted with the accused during the afternoon of 4 November 2018.
The evidence of Tianii was that during her exchange with the accused at around 2.30 pm the accused was happy and talkative. Tianii also testified that when she arrived at 23 Crawley Road at around dinner time (that is, around 6.00 ‑ 6.30 pm) the accused was on the computer with Vincenzo and then proceeded to accuse her (Tianii) of abusing her (the accused).
The evidence of Enzo was that he spent 15 to 20 minutes sitting with and talking to the accused at some point during the afternoon, and that during this time the accused was joyful, not slurring and not drunk, and that she had nothing wrong with her.
The evidence of Giovanna was that when the accused arrived at Vincenzo's house she was very quiet and that at some point after the accused's arrival she had a conversation with the accused during which the accused asked for a lift to Narrogin. It is apparent from her evidence that Giovanna did not observe anything in the accused's demeanour to make her think that the accused was intoxicated.
Finally Vincenzo's evidence was that the accused did not seem drunk when he spoke to her, this conversation on my finding having occurred after Giovanna, Antonio and Achara had left his house.
In short, although it might be said on the basis of the evidence given by Tianii and Enzo that the accused was experiencing at least the 'excitement phase' of alcohol consumption during their interactions with her on the afternoon of 4 November 2018, this being consistent with the accused having by the time of the interactions a BAL of around the level that one would expect if she had consumed around half the bottle of port (say around but not more than 0.12%), there is simply nothing in the evidence given by Enzo, Tianii, Giovanna and Vincenzo that suggests that the accused was, at any point on 4 November 2018, profoundly intoxicated or even exhibiting frank signs of intoxication. Indeed, the evidence of Tianii as to her interaction with the accused at around 6.00 pm in my view conclusively establishes that the accused was not at that time profoundly intoxicated and consequently could not have had a BAL of anything like 0.38%, this being the approximate BAL that she would have had at around 6.00 pm if she had consumed all of the bottle of port and all of the bottle of wine.
In summary, in my opinion the evidence given by the witnesses as to how the accused acted during the afternoon and early evening of 4 November 2018, when considered in light of the evidence given by Dr Robertson, not only supports the accused's evidence as to how much alcohol she consumed on that day, but also establishes that the accused could not have consumed all of the bottle of port and all of the bottle of homemade wine as alleged by the State. Indeed, it might even be argued on the basis of Dr Robertson's evidence as to the signs of 'frank intoxication' that one would expect a person who has a BAL of 0.13% to exhibit, that the accused has overestimated by some small amount the total quantity of alcohol that she consumed on 4 November 2018.
In light of all of the matters to which I have referred, and for the reasons that I have given, I accept the accused's evidence as to the quantity of alcohol that she consumed on 4 November 2018. I find that from around 11.00 am on 4 November 2018 the accused consumed a little over half of the bottle of McWilliam's Smooth Tawny port (it is not possible to be more precise) and a relatively small amount of the bottle of homemade wine, perhaps a few sips (approximately 60 mL), but certainly not more than a glass.
Further, I am also satisfied on the basis of the accused's evidence considered in conjunction with the evidence of the other witnesses that the accused had finished consuming the alcohol that she did consume by no later than 6.00 pm and most likely by around 4.30 to 5.00 pm.
Having made the above findings it remains to consider whether the accused has proved on the balance of probabilities that she was not intoxicated at the time she did the act causing the deceased's death.
In light of the accused's evidence as to what she did immediately after she killed the deceased and the fact that Enzo made the triple zero call at 4.41 am, I am satisfied that the accused killed the deceased at around 4.00 am on the morning of 5 November 2018. The State does not suggest that I should make a finding to the contrary.
On the uncontradicted evidence of Dr Robertson, if the accused from 11.00 am on 4 November 2018 consumed approximately the quantity of port and homemade wine that I have found that she did, her BAL at 4.00 am on 5 November 2018 would likely have been 0%. Indeed, on Dr Robertson's evidence even if contrary to my finding of fact the accused from 11.00 am drank the entire bottle of port plus a glass of the homemade wine, which of course is considerably more alcohol than I have found that the accused did consume, her BAL at 4.00 am would have been 0.06%. It is clear from Dr Robertson's evidence that the mind of a person with a BAL of 0.06% would not be overpowered by the action or effect or alcohol; that is, the person would not be intoxicated.
In addition, the evidence of both Dr Pascu and Dr Brett was, in essence, that if on 4 November 2018 the accused consumed the quantity of alcohol that I have found she did consume, the alcohol would not have played any role in her killing of the deceased and would not have had an overpowering action or effect on her mind.
In light of the evidence of Dr Robertson, Dr Pascu and Dr Brett to which I have just referred, I am satisfied that the accused was not intoxicated at the time that she killed the deceased.
It follows that the accused has proved on the balance of probabilities that she was not intoxicated at the time that she did the act that caused the deceased's death and is therefore not precluded by s 28(2) from relying on the defence of insanity under s 27(1).
Has the accused proved that she did not intentionally cause herself to become intoxicated?
In light of my answer to the previous question, it is not necessary for me to deal with this question. Nonetheless, I will make the following brief observations in relation to the question.
The accused's evidence was that she consumed the alcohol to make her head feel a bit better, to make her more relaxed and to make her feel safe. The State submitted, in response to a question from me, that in giving this evidence the accused admitted that she was intentionally causing herself to become intoxicated. The State submitted that an intention on the part of the accused to in effect give herself some relief from her psychotic symptoms is the same as drinking alcohol with the intention of becoming intoxicated. The State did not refer me to any authorities in support of this submission.
In my view there may be grounds for arguing that a person who is acutely psychotic and who consumes alcohol with the perhaps misguided aim of reducing the intensity of their psychotic symptoms is not consuming alcohol with the intention of causing their mind to be overpowered by the effect of alcohol. However, the point was not one which was agitated on behalf of the accused and the submissions made by the State on the issue were brief. In these circumstances, and given that it is not necessary for me to do so, I will refrain from expressing a concluded view on the point.
Conclusion
For the reasons I have given, I find the accused not guilty of the charge of murdering Jennifer Ruth Lanciano on account of unsoundness of mind and enter a judgment of acquittal on account of unsoundness of mind.[154]
[154] CPA, s 146, s 147(2).
As required by s 149(1) of the CPA and s 21 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) I make a custody order in respect of the accused. The effect of the custody order is that the accused will be detained until released by an order of the Governor.[155]
[155] Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 24.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
2 JULY 2020
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