The State of Western Australia v Krumins - [2023] WASC 364

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- KRUMINS [2023] WASC 364
CORAM:   MITCHELL J
HEARD:   13 - 20 SEPTEMBER 2023
DELIVERED          :   18 SEPTEMBER 2023
PUBLISHED           :   22 SEPTEMBER 2023
FILE NO/S:   INS 18 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
EMMA KRUMINS
Accused

Catchwords:

Criminal law - Criminal responsibility - Charge of murder with manslaughter as an alternative verdict - Decision as to defences which should be left to the jury - Voluntariness, accident, self-defence and defence against home invader - Inter-relationship between provision that a person is not criminally responsible for an act occurring independently of the person's will with provisions dealing with insanity and intoxication - Identification of the relevant 'act' when allegation is that the accused stabbed the deceased with a knife in the chest

Legislation:

Criminal Code (WA), s 23A, s 23B, s 26, s 27, s 28, s 244, s 248

Result:

Ruling as to directions given

Category: A

Representation:

Counsel:

Applicant	:	J Mactaggart
Accused	:	S D Freitag SC

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Accused	:	Dwyer Durack

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

Duffy v The Queen (1980) 3 A Crim R 1
Hawke v The State of Western Australia [2017] WASCA 40
Hawkins v The Queen (1994) 179 CLR 500
Koani v The Queen [2017] HCA 42; (2017) 263 CLR 427
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Beauchamp [2022] QCA 77; (2022) 298 A Crim R 180
R v Falconer (1990) 171 CLR 30
R v Horne [2022] QCA 90; (2022) 10 QR 753
R v Huni [2014] QCA 324
R v Kusu [1981] Qd R 136
R v Radford (1985) 42 SASR 266
Stack v The Queen [2002] WASCA 338
Stefanski v The State of Western Australia [2022] WASCA 5; (2022) 58 WAR 1
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Taylor [2021] WASC 470
Thorns v The State of Western Australia [2022] WASCA 127
Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171
Yarran v The State of Western Australia [2019] WASCA 159

MITCHELL J:

(This judgment was delivered extemporaneously on 18 September 2023 and has been edited from the transcript.)

I am considering the defences which should be left for the jury's consideration in this case in which Ms Krumins is charged with the murder of Mr Thompson. The State contends that Ms Krumins unlawfully killed Mr Thompson by deliberately stabbing him in the chest with a kitchen knife, with the intention of inflicting a penetrating wound to Mr Thompson's chest (which is an injury of such a nature as to endanger, or be likely to endanger, Mr Thompson's life).

Uncontentious facts

It is admitted in this case that Mr Thompson received a penetrating injury to the left side of his chest by a knife labelled by police as 'BME 2', which I will refer to simply as the knife. It is also admitted that the penetrating chest injury was received during an altercation between Ms Krumins and Mr Thompson at Ms Krumins' residence at unit 3 at an address in Rivervale on 21 September 2021. It is admitted that the penetrating injury was the cause of the deceased's death.
The mechanism of the deceased's death is not controversial and was explained by Dr Cooke, the forensic pathologist. The wound was 44 mm long at the wound entry to the chest, with a notch in the skin located 27 mm from the right end of the wound entry and 17 mm from the left end. The notch was an indication that there had been further cutting after the knife blade went into the skin. This was consistent with the 27 mm wide knife blade having cut into the skin and then made a further 17 mm cut.
The penetrating chest wound cut through the muscle on the front left side of the chest, sliced into the top of the sixth rib and entered the surface of the heart, cutting into the heart. There were two penetrations to the front of the heart, an upper and a lower penetration. The uppermost penetration passed through the back of the heart and into the lower part of the left lung and finished somewhere alongside the spine at the back of the chest. The overall depth of the uppermost wound track was 15 cm from the front of the chest. The lower wound track stopped inside the heart and had a depth in the range of 5 ‑ 7cm from the front of the chest. The length of each of the two wound entry points on the surface of the heart was 21 mm, and the two wound entries were 15 mm apart.
Dr Cooke said that death within a minute was an inevitable result of the injuries to the heart and lung sustained by Mr Thompson from the penetrating stab wound.
There is no controversy between the parties that the evidence establishes, beyond reasonable doubt, that the knife was held by Ms Krumins at the time it entered Mr Thompson's chest. There is also no controversy that the evidence establishes that the penetrating chest wound was inflicted in the vicinity of the door of the main bedroom while Mr Thompson was in a standing or upright position, although there is controversy as to precisely where he may have been standing at that time. There is also no controversy that the evidence establishes that, after sustaining the penetrating chest injury, Mr Thompson moved down the short hallway outside the main bedroom of unit 3 where he collapsed on the ground and tragically died. The penetrating chest injury was sustained at some time prior to a 000 call being made by Ms Krumins at 6.14 pm on 21 September 2021.

The State's case

There were no eyewitnesses to the altercation other than Mr Thompson and Ms Krumins. The State relied on admissions made by Ms Krumins to the 000 operator and ambulance officers that she had stabbed Mr Thompson. In the 000 call, Ms Krumins also made statements to the effect that Mr Thompson had threatened her life and attacked her. The State also relies on photographic evidence of blood stains and the expert opinion evidence of Sergeant Blaver who specialises in blood pattern analysis. The State invites the inference from the blood splatter on the exterior door of the main bedroom and within the main bedroom that the deceased was in the main bedroom with the bedroom door fully open at or immediately after he sustained the penetrating chest injury. On the State's case, there is insufficient room on the bedroom side of the door in its fully open position or in any position which could have been consistent with the blood spatter evidence for Ms Krumins to push against the door and spin around in the manner described in her evidence.
The State relies on evidence of the location, depth and width of the penetrating wound to Mr Thompson's chest, that the wound was inflicted by two distinct cutting motions and the force required for the knife to cut through a rib bone. The State invites the inference from that evidence that Ms Krumins must have intended to inflict a penetrating stab wound to Mr Thompson's chest. It relies on the evidence of Dr Cooke as to the organs, including the heart and lungs, located in the chest to prove that a penetrating stab wound to the chest is an injury of such a nature as to endanger, or be likely to endanger, life.

Defence evidence

Ms Krumins elected to give evidence and gave the following account of the incident on 21 September 2021. Ms Krumins was asleep on the couch and woke to see Mr Thompson coming through the front door of her unit, as she gave evidence that:[1]
I wasn't feeling intoxicated, I just felt like what you normally would when you just woke up, like sort of groggy.
[1] ts 319.
Mr Thompson told Ms Krumins that he had gotten her a kebab. When Ms Krumins asked why, Mr Thompson responded that she was looking too thin. Ms Krumins saw that the kebab was her usual order from a nearby kebab shop, but was not cut in half as she ordinarily wanted. She had no memory of cutting the kebab in half, eating the kebab or obtaining the knife, although identified it as cut in half and eaten from one of the forensic photographs. She said that she had the knife in her hand and stood up to return it to the kitchen.
As she stood up, Ms Krumins saw her purse on the dining table and asked Mr Thompson who paid for the kebab. Mr Thompson did not respond. Ms Krumins also asked Mr Thompson how he got into the unit and he did not respond. Ms Krumins was concerned about this as Mr Thompson had previously lost her keys and she was worried about a former violent partner who had been stalking her gaining access to the unit.
Ms Krumins then picked up her purse from the dining table and Mr Thompson's wallet from the coffee table with her left hand. She said, in an assertive but not an angry tone, 'Where's my credit card? What card did you use for paying for this?'. Mr Thompson then shouted, 'Give me my fucking shit back', in an aggressive tone. Ms Krumins said that Mr Thompson was slurring his words and his coordination 'was not 100%'.
Ms Krumins then began to back away in the direction of the main bedroom to try and put some distance between them. She thought that he would calm down if she was in the bedroom. As she was going towards the bedroom, she felt scared. When asked why, she responded:[2]
Well, just the anxiety of someone yelling at me and just triggers a horrible feeling. I just wanted to stop. I wanted whatever noise or anything that causes me that level of stress just to shoosh.
[2] Trial ts 327.
Ms Krumins then went into the main bedroom and threw her purse and Mr Thompson's wallet into the cupboard. She then tried to shut the bedroom door but could feel Mr Thompson pushing the door from the other side. Ms Krumins had her back towards the door with bent knees and was pushing against the door with her back and her arms. She was not able to shut the door, and her bare feet were slipping on the carpet. Ms Krumins was shouting, 'Stop, just leave me alone, I can't handle your behaviour, please stop'. Mr Thompson was on the other side of the door shouting, 'Open the fucking door. Give me my fucking shit back'. Ms Krumins was saying, 'Please just stop, make it stop, stop'.
Ms Krumins then spun around to her left to push the door while facing it, with her hands at about shoulder height. As she did so, her left hand made contact with the door and her right hand made contact with something. She pulled her right hand back and noticed the knife was in the hand. She saw blood on the knife which she knew was not hers. She then shut the door completely. Mr Thompson yelled, 'Open the fucking door' and then went silent.
Ms Krumins then telephoned a former partner and, after speaking to him, eventually opened the bedroom door. Ms Krumins observed Mr Thompson slumped in the dark hallway opposite the laundry/toilet door. She did not observe any injuries, thought she heard snoring and assumed he was drunk and passed out. She did not make any effort to check on Mr Thompson at that point. She later did check on Mr Thompson after again speaking to her former partner on the telephone. She saw that his facial colour was wrong and saw blood. Ms Krumins checked his wrist for a pulse and was unable to find one. She then called 000. Ms Krumins could not remember anything from the time of seeing the chest wound after rolling Mr Thompson over as instructed by the 000 operator until she had a flashback of sitting out at the front of the property and seeing the ambulance drivers come out.

General principles as to defences

A number of the provisions of the Criminal Code (WA), including s 23A, s 23B, s 244 and s 248, are often referred to as giving rise to 'defences'. However, despite that common reference, it remains for the State to exclude the application of those provisions where their potential application is raised by the evidence. It is established that, if there is some evidence capable of raising a defence, the legal or persuasive burden is on the State to exclude the application of the provisions beyond reasonable doubt. The accused bears an evidentiary onus of adducing, or pointing to prosecution evidence, on which a jury acting reasonably might fail to be satisfied beyond reasonable doubt of the facts necessary to prove that the defence does not apply. Whether such a defence should be left to the jury depends upon whether there is evidence at trial which, taken at its highest in favour of the accused, could fail to satisfy a jury beyond reasonable doubt that the defence is excluded. A defence which is raised by the evidence should be left even though no party seeks to have it placed before the jury. Slender evidence may be sufficient, depending on the facts and circumstances of the particular case, to discharge the evidential burden.[3]
[3] See, for example, Thorns v The State of Western Australia [2022] WASCA 127 [147] and Hawke v The State of Western Australia [2017] WASCA 40 [100] - [106].

Defences not contended for by accused

There are a number of these defences which counsel for the accused did not contend should be left to the jury. I agree that the evidence in this trial, taken at its highest in favour of the accused, could not fail to satisfy a jury beyond reasonable doubt that these defences were excluded. Given that it is a matter for me rather than the parties, I will briefly state my reasons for reaching that view.

Accident

Section 23A of the Code relevantly provides that, subject to provisions concerning criminal negligence, a person is not criminally responsible for an act which occurs independently of the exercise of the person's will. Section 23B provides that, subject to provisions concerning criminal negligence, a person is not criminally responsible for an event which occurs by accident.
In applying these provisions, it is necessary to distinguish between the act and the event. In a homicide case, the act is the death-causing act and the event is the death which results from that act. In stabbing cases, the act has been identified as the insertion of a knife into the body of the deceased while the event is the death of deceased.[4]
[4] See Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171 [27]; R v Beauchamp [2022] QCA 77; (2022) 298 A Crim R 180 [31] - [32].
As was noted by Buss P in Yarran v The State of Western Australia:[5]
The State can disprove accident, within s 23B, if it proves beyond reasonable doubt either that, subjectively, the accused intended or foresaw the victim's death as a possible outcome or consequence of the accused's act or omission or that, objectively, the victim's death would reasonably have been foreseen by an ordinary person, in the accused's position, as a possible outcome or consequence of the accused's act or omission (excluding, in each case, possibilities that are no more than remote and speculative).
[5] Yarran v The State of Western Australia [2019] WASCA 159 [110].
Once the act in this case is identified as the insertion of the knife into Mr Thompson's chest, it is impossible to conclude that the death of Mr Thompson is a consequence of that act which would not reasonably have been foreseen by an ordinary person. The evidence in this trial, taken at its highest in favour of the accused, could not fail to satisfy a jury beyond reasonable doubt that Mr Thompson's death was a consequence of the act of inserting a knife into his chest that would have reasonably been foreseen by an ordinary person, in the accused's position, as a possible outcome or consequence of that act. The defence of accident is not raised by the evidence.

Self-defence

Section 248 of the Code provides for the circumstances in which a person's harmful act (here the insertion of the knife into Mr Thompson's chest) may be lawful on the basis that the act is done in self‑defence. Section 248(3) also provides for the circumstances in which a person, acting in what is sometimes referred to as excessive self‑defence, might be guilty of manslaughter rather than murder. One requirement of both self‑defence and excessive self‑defence, provided for by s 248(4)(a), is that the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent. Another requirement, provided for by s 248(4)(c), is that there are reasonable grounds for that belief.
Some of the statements made by Ms Krumins in the 000 call, to the effect that Mr Thompson had attacked and threatened to kill her, might, if considered in isolation from the other evidence, be capable of giving rise to a reasonable doubt as to whether Ms Krumins might have been acting in self‑defence or excessive self‑defence. However, Ms Krumins' statements in the 000 call are not to be considered in isolation from her evidence in this trial. As was noted in R v Baden‑Clay,[6] an accused's evidence, even where it is rejected by a jury, may narrow the range of hypotheses reasonably available upon the evidence as to the circumstances of the death.
[6] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [54].
In the circumstances of this case, the State can prove that Ms Krumins was not acting in self‑defence or excessive self‑defence by proving either that she did not subjectively believe inserting a knife into Mr Thompson's chest to be necessary to defend herself against a harmful act by Mr Thompson, including a harmful act that is not imminent, or by proving that there were no objectively reasonable grounds for such a belief. Not only does Ms Krumins not give evidence as to the existence of such a belief, her evidence is inconsistent with her having had such a subjective belief. Ms Krumins said:[7]
Like, I'm not in fear that he's going to attack me. It's just that he's - he's now shouting, 'Give me my fucking shit back'. He's quite loud. It's vocal. It's triggering an anxiety response in me. So then I'm, like, retreating. (emphasis added)
In cross‑examination and re‑examination today Ms Krumins expanded on the reasons she was frightened but did not say that she feared that Mr Thompson would attack her or that she felt that stabbing him was necessary to defend herself against such an attack.
[7] ts 326.
In any event, the circumstances described by Ms Krumins are incapable of giving rise to an objectively reasonable belief that inserting the knife into Mr Thompson's chest was necessary to defend Ms Krumins from a harmful act, including one which was not imminent. While there were previous occasions on which Ms Krumins described Mr Thompson having significantly assaulted her, neither was very recent and the two remained friends. While Ms Krumins gave evidence of having broken some acrylic nails in a struggle to get Mr Thompson to leave unit 3 a few days before 21 September 2021, she did not describe violent conduct by Mr Thompson directed towards her on that occasion. On Ms Krumins' account, the worst that Mr Thompson did on the day of his death was to arrive with food for her, demand his wallet back when she took it and try to force entry into the bedroom into which Ms Krumins had taken his wallet. There was no basis for thinking that anything more than returning the wallet was required to make Mr Thompson desist from trying to enter the bedroom. There is no possible reasonable basis for any belief that inserting the knife into Mr Thompson's chest was necessary to defend Ms Krumins against an assault or other harmful act by Mr Thompson, including one that was not imminent.
The evidence in this trial taken as a whole and at its highest in favour of the accused, could not fail to satisfy a jury beyond reasonable doubt that Ms Krumins did not subjectively believe inserting a knife into Mr Thompson's chest to be necessary to defend herself against a harmful act by Mr Thompson, including a harmful act that was not imminent. Nor could that evidence fail to satisfy a jury beyond reasonable doubt that there were no objectively reasonable grounds for such a belief. Self‑defence and excessive self‑defence are not raised by the evidence.

Defence against a home invader

Section 244 of the Code provides for a defence of use of force in response to a home invader. It applies to a person (the occupant) who is in peaceful possession of a dwelling. Ms Krumins was clearly an occupant in peaceful possession of unit 3.
In Thorns, the Court of Appeal left open the question of whether a person in the dwelling with the consent of the occupier could be a 'home invader' for the purposes of s 244 of the Code.[8] It is likewise unnecessary for me to resolve that question now. Even assuming that Mr Thompson might have been a home invader, in the circumstances of this case the use of force could only have been authorised under s 244(1)(d) of the Code if Ms Krumins believed, on reasonable grounds, the insertion of the knife into Mr Thompson's chest to be necessary to prevent him from committing, or make him stop committing, the offence of assaulting her. For the same reasons I have explained in relation to self-defence, the jury could not fail to be satisfied that Ms Krumins did not subjectively believe the insertion of the knife into Mr Thompson's chest was necessary to prevent him or stop him from assaulting her. Nor could the jury fail to be satisfied beyond reasonable doubt that Ms Krumins had no objectively reasonable grounds for such a belief. A defence against a home invader is not raised by the evidence.
[8] Thorns [148] - [149].

Defence under s 23A of the Code

This brings me back to s 23A of the Code. As I have noted, s 23A of the Code relevantly provides that, subject to provisions concerning criminal negligence, a person is not criminally responsible for an act which occurs independently of the exercise of the person's will.
While the criminal negligence provisions will arise for the jury's consideration if they come to address the verdict on the alternative offence of manslaughter, the criminal negligence provisions are not relevant to the charge of murder.[9]
[9] See Koani v The Queen [2017] HCA 42; (2017) 263 CLR 427.
To establish that the relevant act was willed in this case, it is necessary for the State to prove, beyond reasonable doubt, that the insertion of the knife into the deceased's chest was a conscious or deliberate act by Ms Krumins. Cases which have held that an unintended stabbing would not be a willed act for the purposes of s 23A and its equivalents include Ugle, Hawke and Beauchamp.
In Duffy v The Queen,[10] the evidence of the accused was that he intentionally struck the complainant with his hand not realising that he held a glass in his hand. He was convicted of unlawfully wounding the complainant. Wallace and Jones JJ held that the trial judge in that case erred in directing the jury that it did not matter whether the accused realised he had a glass in his hand when he hit the victim and in not leaving a defence under the predecessor to s 23A of the Code.[11] In Stack v The Queen,[12] the court proceeded on the basis that the predecessor to s 23A would apply to the stabbing of the victim by an accused who said that he had not known he had a knife in his hand when he caused the fatal injury.
[10] Duffy v The Queen (1980) 3 A Crim R 1.
[11] Duffy (9, 11).
[12] Stack v The Queen [2002] WASCA 338 [28].
In the present case, Ms Krumins' evidence is that she was not aware that the knife was in her hand when it entered Mr Thompson's chest and she did not intend or mean to stab him in the chest or at all. If that evidence were accepted by the jury, or they thought there was a reasonable possibility that it might be true, then the prosecution would not have proved the act to be willed for the purposes of s 23A of the Code. In that event, subject to the issues of mental illness or intoxication to which I will shortly turn, the jury would be required to deliver a verdict of not guilty of the offence of murder and any finding that Ms Krumins was guilty of manslaughter could only be on the basis of criminal negligence.
Therefore, unless s 23A of the Code does not apply because of the significance of mental illness or intoxication to Ms Krumins' state of mind at the time of the stabbing, I must leave that defence for the jury's considerations. I now turn to consider those issues.

A structural limitation in the Code

Section 23A appears in the same chapter as s 26, s 27 and s 28 of the Code and must be read in the context of those provisions. Section 26 provides that:
Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.
Under s 27 of the Code:
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.
Section 1 of the Code provides contains the following definitions relevant to the operation of s 27(1). The term 'mental impairment' is defined to mean intellectual disability, mental illness, brain damage, or senility. The term 'mental illness' is defined to mean:
An underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.
Section 28(1) and s 28(2) provide for when s 27 will apply to 'a person whose mind is disordered by intoxication or stupefaction', and that s 28 does not apply to 'a person who has intentionally caused himself to become intoxicated or stupefied'.
An accused bears the onus of proving to the contrary under s 26 of the Code. However, the operation of s 26 ‑ 28 would be of little consequence if an involuntary act resulting from mental impairment or intoxication could excuse an accused from criminal responsibility under s 23A of the Code. To address that issue, the courts have drawn a structural implication that s 27 and s 28 of the Code govern cases involving alleged insanity or intoxication that might otherwise have come within s 23A of the Code.[13]
[13] See Stefanski v The State of Western Australia [2022] WASCA 5; (2022) 58 WAR 1 [128] and cases there cited
In the present case, there is no evidence that, at the time the knife entered Mr Thompson's chest, Ms Krumins lacked any of the capacities referred to in s 27(1) of the Code. There is no evidence of unintentional intoxication. There is no basis for suggesting that Ms Krumins has proven a defence under s 27 or s 28 of the Code.

Involuntariness and mental impairment

I now turn to deal with the significance of the accused's possible mental health issues for the operation of s 23A of the Code.
The principal authority in this area is the decision of the High Court in R v Falconer.[14] The accused in that case had shot her husband, from whom she was separated, with a shotgun after he entered her house unexpectedly, sexually assaulted her and reached out as if to grab her hair. This occurred against the background of a violent relationship and the disclosure by the deceased in that case that he had sexually abused the couple's daughters. The accused's evidence in that case was that she could remember nothing after her husband reached as if to grab her hair until she found herself on the floor with a shotgun next to her and her husband dead on the floor.
[14] R v Falconer (1990) 171 CLR 30.
The accused in Falconer sought to tender evidence from two psychiatrists that she may have been in a dissociative state at the time of pulling the trigger, resulting from a combination of psychological stress and psychological conflict between her love for her husband and her repulsion by his acts.[15] The trial judge in Falconer excluded the evidence. The Court of Criminal Appeal allowed the accused's appeal against her conviction on the basis that the evidence was admissible as going to the issue of voluntariness under the predecessor to s 23A of the Code. The Crown appealed to the High Court, which unanimously dismissed the appeal.
[15] Falconer (36 ‑ 37).
The evidence of the dissociative state in Falconer was treated as evidence of 'automatism' caused otherwise than by unsoundness of mind. The judges of the High Court adopted the distinction drawn by King CJ in R v Radford,[16] in the following terms:
The essential notion appears to be that 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 be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli. In my opinion the notion of 'disease of the mind' should be explained to the jury in some such terms.
[16] R v Radford (1985) 42 SASR 266, 274 - 275.
Mason CJ, Brennan and McHugh JJ would have included an additional qualification that 'a temporary mental disorder or disturbance must not be prone to recur if it is to avoid classification as a disease of the mind'.[17] Brennan, Dawson, Toohey and Gaudron JJ did not do so. Those four judges also seemed to adopt the approach to the issue taken by Toohey J:[18]
The jury should first ask itself whether the Crown has disproved, beyond reasonable doubt, non-insane automatism ... If the Crown has failed to do so, then the accused will be entitled to an unqualified acquittal.
But if the Crown has disproved non-insane automatism, it may have done so, not because the acts said to constitute the offence were voluntary, but because they were the involuntary product of an unsound mind. Thus, if the answer to the first question is in the affirmative, the jury should go on to ask a second question, namely, whether the accused has proved, on the balance of probabilities, insanity within the meaning of s. 27 …
[17] Falconer (54).
[18] Falconer (77). See Deane and Dawson JJ at 59 and Gaudron J at 86.
This passage recognises that there are two ways in which the State may prove that the defence of involuntary act in s 23A does not apply. The first way is by proving that the act was deliberate. The second way is to prove that the involuntariness of the act was caused by an unsound mind. I would extrapolate that the State may also prove that s 23A does not apply by proving the involuntariness of an act done independently of the will was the product of intoxication.
I note that s 27 was amended to its current form, and the associated definitions introduced, by the Mental Health (Consequential Provisions) Act 1996 (WA). The second reading speech to the Bill for that Act identified the purpose of the amendments to adopt the definition used in Falconer as recommended by the Murray review of the Code.
The High Court considered the interaction between the Tasmanian equivalents of s 23A and s 27 of the Code in Hawkins v The Queen.[19] The question was whether psychiatric evidence which did not establish an insanity defence is admissible on the issue of whether the accused intended to kill or cause a life-threatening injury. The High Court held that the evidence was admissible on the issue of intention but not voluntariness of the act of shooting the father, which was the circumstance in that case.
[19] Hawkins v The Queen (1994) 179 CLR 500.
In considering s 13 of the Tasmanian Code (which provided the defence of involuntariness) and s 16 (which provided the defence of insanity), the court said:[20]
One basis for distinguishing between the two avenues of excuse is to confine the relevance of mental disease to the defence of insanity, denying its relevance to the issue of voluntariness. This has been the solution adopted in most if not all jurisdictions. The solution requires, of course, the determination by the court of the character of any mental abnormality the existence of which is proved or raised by the evidence. Where evidence of a mental abnormality is relied on by the defence and the issue is criminal responsibility for the incriminated act, it is necessary to characterize the abnormality in order to determine whether the connexion, if any, between the alleged abnormality and the doing of the act falls for consideration as a question of voluntariness or as a question of insanity. (emphasis added)
[20] Hawkins (510).
After referring to Falconer, the court in Hawkins said:[21]
[I]f the only evidence tendered to raise the question of the voluntariness of the incriminated act is evidence of a mental abnormality amounting to a 'mental disease' under s. 16 or 'mental disease or natural mental infirmity' under the Codes of Western Australia and Queensland, the admissibility of the evidence does not depend on its relevance to the issue of voluntariness but on its relevance to the issue of insanity. And, if there be evidence of mental disease but the evidence is incapable of proving that the mental disease produced any of the consequences prescribed by pars (a) and (b) of s. 16(1), that evidence is both insufficient to establish insanity and irrelevant to the issue of voluntariness.
[21] Hawkins (510).
Hawkins establishes that the evidence of the forensic psychiatrist Dr van Hattem in the present case was admissible on the question of whether Ms Krumins killed Mr Thompson with an intention identified in s 279(1)(b) of the Code. However, it is now necessary to for me to determine the character of the mental abnormality attributed to Ms Krumins, for the purpose of determining the application of s 23A of the Code and the relevance of the psychiatric evidence to the question of volition.

Character of Ms Krumins' mental abnormality

Dr van Hattem diagnosed the following psychiatric conditions in Ms Krumins by reference to the International Classification of Diseases 11, ICD‑11:
1.Complex post-traumatic stress disorder (PTSD);
2.A harmful pattern of use of alcohol; and
3.An episode of dissociative amnesia.

I will put the diagnosis of harmful pattern of use of alcohol to one side until dealing with the issues of intoxication.
The diagnosis of dissociative amnesia may also be put aside for two reasons. The first is that the episode of dissociative amnesia identified by Dr van Hattem began when the accused first saw the knife wound to Mr Thompson's chest. That is after the time when the act which is the subject of the charge had occurred. Secondly, dissociative amnesia is an inability to recall for a period around traumatic events after they have occurred rather than an inability to control actions in the moment.
Dr van Hattem gave the following definition of PTSD:[22]
PTSD is a condition that develops after a person has been exposed to a traumatic event and for psychiatric purposes, a traumatic event can be a lot of things but is generally or at least traditionally, was considered to be a life-threatening situation, it might be something that the person experienced themselves or witnessed and it only needed to be perceived as life-threatening or at that level of intensity, even if an objective observer might have said it wasn't actually that dangerous.
…Not everyone will develop symptoms after being exposed to trauma but a particular syndrome occurs frequently enough that it's been classified and that's what we call PTSD …
[22] ts 255.
Dr van Hattem identified three core symptoms of PTSD:[23]
1.re‑experiencing the traumatic event;
2.avoidance of thoughts or memories or things that remind them of that traumatic event; and
3.persistent, heightened awareness or heightened threat sensitivity.
[23] ts 255 ‑ 256.
Complex PTSD refers to PTSD occurring after a series of traumatic events rather than a single event, with domestic violence relationships being a classic example. Additional symptoms people with complex PTSD also experience were described as follows:[24]
problems with affect regulation, that is to say, the ability … to control their emotional responses. They'll often feel diminished, defeated or worthless and have excessive feelings of guilt or shame or failure relating to the traumatic events and they frequently have difficulty sustaining relationships and feeling close to others.
[24] ts 256.
After describing the long history of family violence experienced by Ms Krumins, Dr van Hattem said:[25]
These, … repeated breaches of … safety manifested in the symptoms of the complex PTSD, particularly hyperarousal, being sensitive to threats, seeing something as threatening when another person might consider it just a bit of a bother but not a danger. That would mean that if something was a genuine danger, it could be perceived much more intensely by her as well. That's a feeling that overlaps with anxiety and is often described as an anxious feeling by the people who are suffering from it.
[25] ts 258 ‑ 259.
In cross-examination, Dr van Hattem said that the symptoms of PTSD could change a person's priorities and influence what their intention might be, but would not influence the ability to form an intention.
Dr van Hattem also referred to dissociative symptoms, of which dissociative amnesia was one example. He gave the following definition of 'dissociation':[26]
A disassociation includes involuntary disruption or discontinuity in the normal integration of one or more of the following. So it can include identity, sensations, perceptions, effects, thoughts, memories, control over bodily movement and behaviour in some cases. This is sometimes complete but it's more generally and more commonly a partial experience. It can vary from day to day, hour to hour or in an intense situation, perhaps from minute to minute.
[26] ts 260.
Dr van Hattem also said of the accused:[27]
I think it's very likely that Ms Krumins was experiencing many of the dissociative symptoms that would be expected in a highly intense situation, such as not being able to fully take in her surroundings and - and having perhaps tunnel vision or being - being very limited in what she could perceive and being very distressed. But I'm not sure that her actions were being dictated by a dissociative condition.
[27] ts 262.

Dr van Hattem described the 'most extreme and rarest form of dissociation' as being 'a complete state in which a person can't remember anything about what they did and didn't appear to be in control of themselves if observed in that state'.[28] He accepted that one possible outcome of an escalating dissociative state would be loss of the ability to perceive that something was being held in a person's hand.[29]
[28] ts 272.
[29] ts 274.
During the course of Dr van Hattem's cross-examination, the following exchange occurred with counsel:[30]
Do you agree with me that the experience of dissociation is not always pathological? That is, it's not always caused by an underlying mental health issue?---That's correct. It sometimes forms a psychological defence mechanism.
And it's a psychological defence mechanism on some occasions to help a person manage traumatic events that are occurring to them and it's a - it's protecting their mind, essentially, from the trauma that they're experiencing. Is that the formulation, when you say it's a defence mechanism?---That's one way of making sense of it, yes.
And do you agree, and this is from paragraph 46 of your report, that:
Dissociation is understandably common in people exposed to violence and can often also be seen in persons who have committed violent acts.
?---That's correct.
[30] ts 275 ‑ 276.
Dr van Hattem accepted the following statement as a fair summary of his conclusions:[31]
Due to a dissociative experience, in your opinion, Ms Krumins' perception of her surroundings could have been limited. And that's consistent with you saying she was not fully able to take in her surroundings. She retained, in your opinion, the ability to - freedom to act in a physical way, as in she could move parts of her body with freedom, but she's doing so in the context of potentially limited information, not fully able to take in her surroundings.
[31] ts 279.

Later, Dr van Hattem observed:[32]
The distinction, I guess, between nonpathological dissociation and pathological dissociation is whether it causes dysfunction. In this instance, you could say that the dissociative amnesia is causing dysfunction because it's adding a lot of complexity to these proceedings because she can't remember exactly what was happening, whereas other forms of dissociation that may have been occurring around the same time, were protecting her from becoming overwhelmed, even more so by the situation that if you've been taking in the full sensory information at the time that there was a perceived immediate threat, her brain wouldn't have been able to process it quickly enough to do anything at all and she would have frozen.
…
[M]y impression from - of Ms Krumins' history and - and all that I read about her, is that she is more prone to experiencing dissociation than the average person because of her trauma history, but even without that trauma history, any other person perceiving an immediate threat might experience some of the same dissociative symptoms.
[32] ts 280.
In my assessment, the account of dissociative symptoms which may have been experienced by Ms Krumins are not the symptoms of a 'mental impairment' as that term is defined in s 1 of the Code. The only potentially appliable limb of that definition is 'mental illness'. The dissociative symptoms are not an underlying pathological infirmity but the reaction, which may be experienced by any person, to a perceived threat. Dr van Hattem does not regard the dissociative symptoms reported by Ms Krumins, other than the dissociative amnesia, as pathological. Dr van Hattem's description of those symptoms is consistent with the psychological defence mechanism held by the High Court in Falconerto fall outside the scope of s 27 of the Code.
PTSD may well be a mental illness as defined, but there is no evidence in this case that its symptoms affected Ms Krumins' capacity to form an intent. Dr van Hattem's evidence is to the contrary. While PTSD may have made the accused more susceptible to perceiving a threat and 'more prone to experiencing dissociation than the average person because of her trauma history', this seems to me too remote a connection to regard any dissociative symptoms as symptoms of or resulting from PTSD.
In my view, the dissociative symptoms, which are the only abnormality which may have contributed to Ms Krumins' mental state, are not characterised as a mental impairment as defined in s 1 of the Code. Proof that those dissociative symptoms contributed to an involuntary insertion of the knife into Mr Thompson's chest would therefore not prove that s 23A does not apply to the unwilled act described by Ms Krumins because the unwilled act she described was a result of mental illness as defined. Further, the evidence of Dr van Hattem as to her reported dissociative symptoms may be taken into account by the jury in determining whether or not the State has proved that Ms Krumins deliberately stabbed Mr Thompson.

Involuntariness and intoxication

Dr van Hattem's diagnosis of a harmful pattern of use of alcohol is not significant for the operation of s 28 of the Code. It does not go to whether an accused's mind was disordered by the intoxicating effects of alcohol at the time of the alleged offence. As was noted by Jenkins J in The State of Western Australia v Herbert,[33] in a passage adopted by Derrick J in The State of Western Australia v Taylor,[34] the reference to a mind disordered by intoxication in s 28 is to a person whose mind is confused or disarranged by the overpowering action or effect on the mind of alcohol or another drug. It is intentional intoxication at the time of the commission of the offence which the law is concerned about, rather than mental impairment arising from past experience with alcohol or other drugs.
[33] The State of Western Australia v Herbert [2017] WASC 101 [58] - [59].
[34] The State of Western Australia v Taylor [2021] WASC 470 [62].
In Stefanski, the Court of Appeal considered the interaction of s 27 and s 28 of the Code in cases where an accused was both intentionally intoxicated and suffering from a mental illness. Buss P held that an intentionally intoxicated accused could rely on s 27 of the Code by proving that they suffered from a mental impairment which deprived them of a relevant capacity 'independently of and without regard to the accused's intoxication'.[35] Mazza JA held that a person who has a mental impairment is not relieved of criminal responsibility if the mental impairment was 'caused by, triggered, contributed to or exacerbated by intentional intoxication'.[36] Beech JA held that s 27 could apply where 'the intoxication did not trigger and played no part in the person's mental impairment or their loss of a relevant capacity'.[37]
[35] Stefanski [153].
[36] Stefanski [197] ‑ [200].
[37] Stefanski [220]. See also to similar effect R v Huni [2014] QCA 324 [60].
In my view, a similar analysis applies in relation to the interaction between s 23A and s 28 of the Code, with the significant qualification that in the case of s 23A (and in contrast to s 27), the State bears the onus of proving that s 23A does not apply to excuse criminal responsibility. That is, one way in which the State may prove that s 23A does not excuse criminal responsibility of an accused is to show that intoxication triggered or significantly contributed to the relevant act occurring independently of the exercise of the accused's will.
This means that an accused cannot rely on an involuntary act triggered or significantly contributed to by intentional intoxication as excusing criminal responsibility under s 23A of the Code. The accused cannot call in aid an involuntary act which he or she contends is triggered or significantly contributed to by intentional intoxication. Further, the State can prove that s 23A does not apply by showing that the involuntariness of the accused's act was triggered or significantly contributed to by intentional intoxication.
In the present case, there is very limited direct evidence as to the extent of Ms Krumins' intoxication and its impact at the time the knife entered Mr Thompson's chest. As I have noted, Ms Krumins' evidence is that she did not feel intoxicated when she awoke on the couch to find Mr Thompson entering her unit. Exhibit P9, the ChemCentre report of analysis of Ms Krumins' blood sample showing a blood alcohol reading of 0.086%, was received by the ChemCentre on 29 September 2021. Mr Sakrajda indicated[38] that he was not able to say what time or date samples were taken in relation to Ms Krumins. None of the first responders described Ms Krumins as behaving in a drunken manner. Sergeant Frankhuizen, who arrived at the unit at 6.37 pm, said he did not direct anyone to take a sample of Ms Krumins' blood and, while she seemed 'a little bit out of it', he did not form the view that was caused by alcohol.[39]
[38] ts 155.
[39] ts 107.
It may be open to the State to contend that the inference that Ms Krumins was intoxicated in a manner which contributed to the act of inserting the knife into Mr Thompson's chest is to be drawn from a number of features of the case. On the State's case, that inference might be drawn from the evidence of Ms Krumins going on a bender, her inability to recollect any other events on the day of Mr Thompson's death and the large volume of partly consumed alcohol in her unit. It might also draw inferences of a general nature from the alcohol levels in the analysed blood sample from Ms Krumins which the jury would infer must have been taken sometime after her arrest (even if the precise time was not known) when she would not have had access to alcohol.
On this state of the evidence, it would be open to the jury to have a reasonable doubt about whether the involuntary act described by Ms Krumins was triggered or contributed to by intentional intoxication. On that basis, the evidentiary onus as to the application of s 23A is met, notwithstanding the evidence of Ms Krumins' alcohol consumption around the time of the offence.
It follows from what I have said that I do not agree with the observation of Macrossan J in R v Kusu[40] to the effect that intoxicated persons should not be deprived of a possible defence of accident (by which, in context, his Honour meant involuntary act) because their intoxication made a contribution to the relevant event. The other two members of the court in Kusu did not adopt that observation. While Macrossan J's observations were referred to in R v Horne,[41] that was for the purpose of distinguishing the situation addressed by Macrossan J from that being considered in Horne rather than adopting Macrossan J's analysis. I do not consider myself bound by the observations of Macrossan J in Kusu.
[40] R v Kusu [1981] Qd R 136, 145 - 146.
[41] R v Horne [2022] QCA 90; (2022) 10 QR 753 [32] - [35].
I consider the approach I take to be consistent with the approach taken in Hawkins. On that approach, evidence of mental illness not excusing criminal responsibility under s 27 of the Code is irrelevant to the issue of whether the act was voluntary under s 23A of the Code. By analogy, evidence of intoxication not excusing criminal responsibility under s 28 of the Code is irrelevant to the issue of whether the act was voluntary under s 23A of the Code. In both cases, the only significance of mental illness or intoxication is that one way the State can prove that s 23A is not engaged is by proving, beyond reasonable doubt, that mental illness or intoxication caused the accused to act independently of his or her will.

Conclusion

For these reasons, Ms Krumins has satisfied the evidentiary onus of raising a defence in s 23A of the Code. The onus then falls on the State to prove, beyond reasonable doubt, that s 23A does not exclude Ms Krumins' criminal responsibility for the act of inserting the knife into Mr Thompson's chest. The State can discharge that onus by proving that the act did not occur independently of Ms Krumins' will. It could also discharge that onus, at least theoretically, by proving beyond reasonable doubt that involuntariness resulted (including by being triggered or contributed to) by mental illness or intoxication.
I have concluded that the mental abnormality of dissociative symptoms described by Dr van Hattem is not to be categorised as a mental illness as defined in the Code. It clearly does not fall within any other limbs of the defined term 'mental impairment'. Therefore, the jury may have regard to Dr van Hattem's evidence as to dissociative symptoms in considering whether the accused deliberately inserted the knife into Mr Thompson's chest.
I have also concluded that the only relevance of evidence of intoxication is if the jury are satisfied beyond reasonable doubt that an involuntary insertion of the knife into Mr Thompson's chest was caused by (including being triggered or contributed to by) Ms Krumins' intoxication by alcohol consumption. I propose to direct the jury accordingly. Of course, intoxication is still relevant to be taken into account in assessing the question of a subjective intention to inflict an objectively life‑threatening injury.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
22 SEPTEMBER 2023