The State of Western Australia v Lang [No 2]
[2016] WASC 206
•6 JULY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- LANG [No 2] [2016] WASC 206
CORAM: JENKINS J
HEARD: 27 - 29 JUNE 2016
DELIVERED : 6 JULY 2016
FILE NO/S: INS 180 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
GABRIEL GAUDI LANG
Defence
Catchwords:
Criminal law - Trial by judge alone - Murder - Attempted murder - Insanity - Whether accused was mentally impaired - Whether accused lacked capacity to know that he ought not do the acts - Whether his mental impairment deprived accused of a relevant capacity - Whether accused had 'intentionally caused himself to become intoxicated' by long term and/or recent cannabis use
Legislation:
Criminal Code (WA), s 1, s 26, s 27, s 28
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 21
Criminal Procedure Act 2004 (WA), s 113, s 118, s 120
Result:
Accused acquitted of murder and attempted murder on grounds of unsoundness of mind
Custody order made
Category: B
Representation:
Counsel:
Prosecution : Ms L E Christian
Defence: Mr T F Percy QC & Mr G Yin
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence: D G Price & Co
Case(s) referred to in judgment(s):
Director of Public Prosecutions v Beard [1920] AC 479
Evans v The State of Western Australia [2010] WASCA 34
R v Clough [2010] QCA 120
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v O'Connor [1980] HCA 17; (1980) 146 CLR 64
R v Porter [1933] HCA 1; (1933) 55 CLR 182
Radford (1985) 20 A Crim R 388
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
The State of Western Australia v Brown [No 3] [2013] WASC 349
Viro v the Queen [1978] HCA 9;(1978) 141 CLR 88
Ward v The Queen (2000) 118 A Crim R 78
JENKINS J: The accused is charged on indictment that on 15 December 2014, at White Gum Valley, he murdered Joan Marie Hendry. He is further charged that on the same date and at the same place he attempted to unlawfully kill Rosanna Lang.[1] The accused applied for a trial by judge alone and on 8 March 2016, Hall J ordered that pursuant to the Criminal Procedure Act 2004 (WA) s 118, he be tried by judge alone.
[1] Ms Hendry‑Lang is named in the indictment as Rosanna Lang. In her witness statement she calls herself Rosanna Arryal Hendry‑Lang. She is known as Rosie. I will refer to her as Rosie to distinguish her from her mother.
The accused pleaded not guilty on account of unsoundness of mind to each of the charges. The accused's trial proceeded before me on 27 ‑ 29 June 2016.
These are my reasons for finding that the accused is not guilty of both charges on the grounds of unsoundness of mind. In accordance with the Criminal Procedure Act s 113(1), I enter special verdicts in those terms. In accordance with the Criminal Law (Mentally Impaired Accused) Act 1996 s 21, I make a custody order in respect of the accused.
Issues
At the commencement of the trial, the accused's counsel admitted that the accused did the acts relevant to both charges, with the relevant intentions. The issue is whether the accused has established on the balance of probabilities that he is not criminally responsible for his admitted acts on account of unsoundness of mind? This issue requires me to determine each of the following matters:
(1)at the times the accused did the relevant acts was he mentally impaired?
(2)if the accused was mentally impaired, did his mental impairment deprive him of the capacity to know that he ought not do those acts? and
(3)if so, does the defence of insanity not apply because the accused intentionally caused himself to become intoxicated?
The evidence
With the consent of the accused, the State read into evidence the portions of the statements of the following witnesses:
(1)Patrick Christopher McCarthy.
(2)Ryan William Miles Shea.
(3)Henry George Slade.
(4)Simeon Isa Hadad.
(5)Lachlan Andrew Dymond.
(6)Jacob Ewart Savelsberg.
(7)Rosanna Arryal Hendry‑Lang.
(8)Bruce John Abbott.
(9)Danielle Elise Wigger.
(10)Ingrid Mary Wigger.
(11)Robert Ian Lang.
(12)Guy William Cooper‑Maitland.
(13)Christopher James Arrow.
(14)Matthew William Bewsher.
(15)Christopher John Turner.
The State also tendered some documents, such as a plan of the house, photographs, the post‑mortem report on Ms Hendry and the ChemCentre report relating to the forensic examination of certain items.
The accused elected not to give evidence personally. He called Dr Victoria Pascu, a consultant forensic psychiatrist, in his defence.
In rebuttal, the State called Dr Adam Brett, a consultant psychiatrist, to give oral evidence.
At the commencement of the trial I queried with counsel how the accused intended to prove the history which the accused gave to Dr Pascu. The State advised me that apart from some matters on which it said there was contradictory evidence, it did not take issue with the history given by the accused to Dr Pascu.
General legal principles
The judgment in a trial by judge alone must include the principles of law that the judge has applied and the findings of fact on which the judge has relied: Criminal Procedure Act s 120(2).
The principles of law which I apply are as follows.
The accused is presumed to be innocent of both charges. Putting to one side the issues raised by his plea of not guilty on account of unsoundness of mind, the State has the onus of proving his guilt. For the State to discharge that burden, it is required to prove beyond reasonable doubt that the accused is guilty of whichever charge which I am considering. The State bears the onus of proving each element of an offence to that standard.
If it is necessary to draw inferences from the evidence, I may only draw an inference adverse to the accused if it is the only reasonable inference to draw from the evidence. If there is an alternative conclusion open within reason, I must not draw the inference of guilt.
I must look at the evidence in respect of each charge separately. I must not reason that just because the accused is guilty or not guilty of one charge, the same verdict must follow in relation to the other charge. My verdicts do not have to be the same on each charge.
I must decide the case based on the evidence which has been produced in the trial. I must assess that evidence dispassionately. I must not decide the case based on prejudice against any person or sympathy towards any person. I must not guess or speculate about matters which are not in evidence.
Given that both parties agree that on 15 December 2014, the accused was suffering from a psychosis, I warn myself that it is dangerous to assess the accused's actions and test the accused's capacity to know that he ought not so act by the standards of ordinary people without a psychosis.
The two witnesses who gave oral testimony are experts. Written reports of other experts were tendered by consent. I am not bound to accept and act upon a witness's evidence, even an expert witness's evidence. I may reject expert evidence if there is other evidence to support my findings or if I conclude that the expert's opinion is unreliable. Nevertheless, I am not entitled to disregard expert evidence capriciously. If there are no facts and no circumstances which, in my view, throw doubt on that evidence, I must accept it.
Neither party disputes the expertise of the opposing party's expert witness or witnesses. However, there are areas of disagreement about some facts on which the psychiatrists' opinions are based. There is also disagreement between the psychiatrists as to the conclusions that can be drawn from those facts. It is for me to decide whose opinion I accept in whole or in part. The determination of matters of conflict may depend upon which party has the onus of proof in relation to the issue in dispute. It may also depend on my decision as to whether the facts upon which an opinion is based accord with the facts as I have found them to be.
The accused did not give evidence in this case. It was his right not to do so and his decision not to give evidence may not be used against him.
Elements of the offence of murder
Before I may find the accused guilty of murder, I must be satisfied that the State has proved each of the following elements of the offence to the standard of beyond reasonable doubt:
(1)that the accused killed Joan Marie Hendry;
(2)that the killing was unlawful; and
(3)that the accused intended to kill Ms Hendry or cause her a bodily injury of such a nature as to endanger, or be likely to endanger, her life.
The accused admits that he killed Ms Hendry. Putting to one side the insanity defence, the accused does not suggest that the killing was lawful. However, as the issue of insanity has been raised in this case, the third element of murder falls to be determined only if the accused fails to satisfy me on the balance of probabilities of the insanity defence: Ward v The Queen (2000) 118 A Crim R 78. In any event, the accused does not dispute that when he killed Ms Hendry he intended to kill her.
Elements of the offence of attempted murder
Before I may find the accused guilty of attempting to unlawfully kill, I must be satisfied that the State has proved each of the following elements of the offence to the standard of beyond reasonable doubt:
(1)that the accused cut Rosie;[2]
(2)the cutting was unlawful
(3)that at the time the accused cut Rosie he intended to kill her; and
(4)that the cutting was done with a view to putting his intention to kill into effect.
The accused admits that he cut Rosie. Putting to one side the insanity defence, the accused does not suggest that his acts which harmed Rosie were lawful. It logically follows from the dicta in Ward that the third and fourth elements of the offence fall to be determined if the accused fails to satisfy me of the insanity defence. In any event the accused does not dispute that when he cut Rosie he intended to kill her and his actions were done to put that intention into effect.
[2] A cutting is not an essential element of attempted murder but, in this case, it is the accused's acts by which he cut Rosie which satisfy the legal requirement that before he can be convicted of attempted murder he must have done something to put his intention to kill into effect.
The law applying to the insanity defence
Every person is presumed to be of sound mind and to have been of sound mind at any time which is in issue, until the contrary is proved: Criminal Code (WA) s 26. The accused has the burden of proving that he was not of sound mind at the time he killed Ms Hendry and at the time he cut Rosie. The accused must prove that he was not of sound mind on the balance of probabilities: R v Porter [1933] HCA 1; (1933) 55 CLR 182.
Whether the accused proves that he was not of sound mind depends on the application of the Criminal Code s 27(1) and s 28(1) and (2). Those provisions state:
27.Insanity
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
…
28.Intoxication
(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.
The phrase 'mental impairment' is defined in the Criminal Code s 1 to mean 'intellectual disability, mental illness, brain damage or senility'. The accused says that he had a mental illness at the time he killed Ms Hendry and attempted to kill Rosie. Mental illness is defined in the Criminal Code to mean:
An underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.
The Shorter Oxford Dictionary defines 'pathological' to mean 'pertaining to or dealing with pathology'. In turn, it defines 'pathology' to mean either 'the science or study of disease; that department of medical science, or of physiology, which treats of the causes and nature of diseases, or abnormal bodily affections or conditions'.
In Radford (1985) 20 A Crim R 388, 396, King CJ, of the South Australian Court of Appeal, said in relation to the meaning of the expression 'disease of the mind' when it is used in relation to the law of insanity:
(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 arteriosclerosis, 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 called ' "defect of reason" in the M'Naghten rules, 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'.
King CJ's comments were generally approved of in the context of the then Criminal Code provisions in R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 54, 60, 76 and 82.
When Falconer was decided, the Criminal Code s 27 was differently worded. The subsequent amendments to the Criminal Code are consistent with King CJ's statement of principles in Radford, although the definition of 'mental impairment' is broader than that of 'disease of the mind' which was considered by King CJ.
What is a mental illness is a question of law for the judge. Whether or not the facts disclose a state of mental illness is a question for the decider of fact.
The accused says that his mental illness deprived him of the capacity to know that he ought not do the acts by which he killed Ms Hendry and attempted to kill Rosie.
As to what is meant by the expression 'capacity to know that he ought not do the act', I rely on what the High Court said in Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 367:
For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. See R v Davis (1881) 14 Cox CC 563, Stephen J, R v Kay (1904) 68 JP Jo 376, Stephen J. In R v Porter (1933) 55 CLR 1828 at pp 189, 190, this was expressed by Dixon J as follows:
The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.
In Evans v The State of Western Australia [2010] WASCA 34 McLure P considered the common law principles and then said that there was no material distinction between the common law and s 27 on this point. Her Honour continued:
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 … [31].
Wheeler JA (Owen JA agreeing) also discussed the common law principles and then said:
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 [60].
If the accused satisfies me of the matters in s 27, he submits that he was not intoxicated and so s 28 is not relevant. The State says that s 27 does not apply because the accused has not proved on the balance of probabilities that he had not intentionally caused himself to become intoxicated. Therefore I must consider the meaning of intoxication and the legal principles relevant to s 28(2).
In The State of Western Australia v Brown [No 3] [2013] WASC 349 I considered the meaning of the Criminal Code s 28. I see no reason to change the views which I expressed then in the following terms:
[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].
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. The common law is that voluntary intoxication does not negate the general intent required for criminal responsibility but in a charge requiring proof of a specific intent voluntary intoxication must be taken into account when deciding whether the accused had the necessary intent: Viro v the Queen [1978] HCA 9;(1978) 141 CLR 88; R v O'Connor [1980] HCA 17; (1980) 146 CLR 64. The Criminal Code s 28(3) reflects a modified position that intentional or unintentional intoxication may be regarded for the purpose of ascertaining whether an intention to cause a specified result existed where that is an element of the offence. Section 28(2) applies the general common law principles as modified by the Criminal Code, to the law of insanity. 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. Other issues may arise where it is suggested that at the relevant time the accused was both voluntarily intoxicated and mentally impaired. This is not such a case.
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) applies and s 27 does not apply.
The facts
In December 2014, Joan Hendry and her two children, the accused, then aged 19, and Rosie, then aged 21, lived at 37 Stevens Street, White Gum Valley. Bruce Abbott, Ms Hendry's partner, regularly stayed there too.
Ms Hendry and the accused had a very close relationship. Rosie had returned early in 2014 from Melbourne where she had been living. She did not have a close relationship with the accused but she was attempting to re‑establish their relationship.
On the evening of Friday, 12 December 2014, the accused went to a hotel and socialised with friends. His friends noticed that he was vague and replied 'no' or 'nothing' to their questions.
During the evening, the accused sent Rosie an SMS asking how she was going and when she replied he sent a further SMS saying that he was 'good' with a smiley face emoji. It seems that at that point he was at home as he said that he was going to bed. Rosie says that the communication was quite unusual because the accused did not normally SMS her.
Rosie spent Friday evening away from the house and did not speak to the accused until Saturday afternoon, 13 December 2014. I accept Rosie's evidence that then the accused was 'in his usual not really bothered mode'. Nevertheless, he left a banana on her desk with a note saying 'don't let me eat all these, love you'. Rosie then walked into the kitchen and saw the accused. He complained to her that she had not said 'hi' to him when she arrived home that morning. That surprised Rosie as the accused did not normally speak.
The accused spent most of Saturday evening at home but for some of the evening he was at a basketball court, which was close to his home, with a group of male friends. They played some basketball and some of them used cannabis. The parties are not in agreement as to whether the accused used cannabis that evening. Based on his own reports and that of other witnesses, I am satisfied that he did. Later, I will give more detailed reasons for this finding.
The accounts of a number of the male friends who were at the basketball court with the accused are in evidence. They each had different impressions of the accused but there is a common thread throughout the accounts. They variously describe the accused as 'disinterested', 'disconnected from reality', 'confused' and 'very low'. It is true that not all of the witnesses noted these characteristics but a sufficient number did to cause me to conclude that the accused exhibited unusual behaviour on that evening.
On the evening of Sunday, 14 December 2014, Rosie noticed the accused was behaving unusually. He was more communicative than usual with her and he was interested in spending time with her. He lay on her bed and watched a movie with her. He touched and squeezed her arm like he wanted to have human contact.
That evening the accused tried repeatedly to contact Ms Hendry, who was not home, by phone. He appeared relieved when he finally managed to speak to her. Before he spoke to his mother, the accused told Rosie that his mother may be angry with him because he had done a 'really bad thing' after basketball. When Rosie asked the accused what he had done, he told Rosie he had taken a blue pill which was for a good life and a red pill which was for a bad life. He said that as a consequence he was stuck in limbo. The inference is that he had, or believed he had, taken the pills the previous evening after playing basketball with his friends. Rosie assumed that the pills he talked about were mints she had seen on the table. She then gave him a blue mint. He said 'blue pill' and ate it. This seemed to relieve his concerns.
The next day, Monday, 15 December 2014, the accused went to a local café with family members. That afternoon he worked for Mr Abbott, who ran a garden landscape business. An employee of the business, Jacob Savelsberg, picked up the accused and together they made deliveries and planted plants. Jacob had known the accused since they were both boys.
Whilst they were driving between jobs, Jacob noticed that the accused was vague and mumbling. At one point he said words to the effect of 'people don't respect my wishes'. He did not provide an explanation when Jacob asked him for one.
Jacob asked the accused to plant a tree at their last job because he had injured his leg. The accused said that he did not want to put the tree in by himself. Jacob said that he would help him to do it. When they arrived at the address, Jacob said that the accused 'seemed like he wasn't really there'.
The next thing that Jacob noticed was the accused brushing his face with a reticulation cutting knife, like he was shaving. Jacob looked and saw that the accused was holding the knife to his own throat and pushing it against his throat. He said things to indicate that he was thinking of using it to harm himself. Jacob managed to persuade him to put the knife down and Jacob then took possession of it. During this time, Jacob noticed that the accused was not acting normally, was vague and was not very responsive. After they completed that job and were driving home, Jacob questioned the accused to see if he was all right. He offered to listen if the accused wanted to talk but the accused was not very responsive.
Jacob dropped the accused off at 37 Stevens Street and made him promise not to do anything stupid. After the accused got out of the truck, Jacob phoned Mr Abbott, who was at the Stevens Street address, and told him about the incident with the knife. Whilst Mr Abbott was on the phone to Jacob, the accused entered the bedroom where Mr Abbott and Ms Hendry were sitting. He stated that his sister had gone into the ground and he started crying. Ms Hendry reassured the accused by taking him to see Rosie who was in her bedroom area. The accused first heard Rosie's voice and then saw her. He touched her as if to make sure she was real and showed by his behaviour that he was shocked but relieved to see that she was not dead.
All the occupants of the Stevens Street address were concerned about the accused's behaviour. Ms Hendry called the accused's father, Mr Lang, and told him that the accused was acting strangely. He immediately went to 37 Stevens Street. After he arrived, discussions occurred and then a decision was made that the accused needed to go to hospital. Ms Hendry called the Alma Street Clinic, a community psychiatric clinic attached to Fremantle Hospital. She was advised that the clinic was open until 8.00 pm and that the accused could be brought in before then.
The accused did not want to go to the clinic. There was a delay before he agreed to go and a further delay before he was ready to go. Ms Hendry expressed a desire that she and the accused go together. Ultimately, at close to 8.00 pm Ms Hendry left with the accused with the intention of going to the Alma Street Clinic.
After Ms Hendry and the accused left, Mr Lang returned to his home and Mr Abbott watched a video on his laptop in the bedroom until he fell asleep.
Ms Hendry and the accused returned to the Stevens Street house some hours later. At about 10.42 pm Ms Hendry sent an SMS to Mr Lang which said that she and the accused were home after they had waited for two and a half hours in the waiting room. She said that the accused was 'ok'. Given the time at which they left the house, this message is consistent with Ms Hendry and the accused having returned to the house at about the time the SMS was sent.
Rosie was awake when Ms Hendry and the accused returned home. Ms Hendry told Rosie that an encounter in the hospital waiting area with a man who was talking about suicide made her decide to bring the accused home and to return to the hospital in the morning. It seems that the Alma Street Clinic was closed by the time they got there and they had waited in the emergency department of the Fremantle Hospital for over two hours, without being seen by medical staff.
The accused, his mother and sister sat and talked outside the house for a period of time. They then went inside, where Ms Hendry made a cup of tea. The three decided to play a game using a piece of paper and pencils. They sat at the kitchen table, which was in an open plan living/dining/kitchen area of the house. Ms Hendry and Rosie sat on one side of the table and the accused sat on the other.
While they were playing the game, on a number of occasions the accused took a piece of fruit from the fruit bowl and cut it into three pieces using a knife. Each time he cut a piece of fruit, he gave a piece to his mother and his sister. The accused showed little interest in the game but did play it.
After the second game, the accused told his mother and sister that he loved them and kissed their hands. He then got up and went behind his mother's chair. He bent over and hugged her from behind. His hands were around her chest area. Rosie saw him move his hands up towards his mother's neck. Ms Hendry said 'Gabe', referring to the accused. To Rosie, it looked like the accused was strangling Ms Hendry. However, it is beyond doubt that it was then that the accused inflicted the fatal knife wound to his mother's neck.
Rosie stood up and yelled at the accused. She moved to the short end of the table. Rosie saw the accused move away from their mother and she noticed he had a knife in his right hand. Ms Hendry stood up but did not say anything further. She walked or staggered into her bedroom.
The accused began to walk towards Rosie. Rosie walked backwards and yelled 'Gabe - no'. The accused continued to move towards Rosie with the knife. She tried to push it away with her right hand. The accused continued towards her with the knife held in front of him at chest height. By this time, Rosie was backed up against an armchair. She kicked the accused in the groin. He recoiled slightly before he managed to get on top of Rosie on the floor. Rosie was lying on her front and screaming for Mr Abbott. She tried to protect her neck from the knife. She felt something pressing against her neck and she felt pain.
Mr Abbott was woken up by screaming. When he looked around he saw Ms Hendry slumped in a corner of the bedroom near the door. He saw a large open cut to her neck. The cut was not bleeding but there was a large amount of blood on the ground. Mr Abbott did not think Ms Hendry was alive. He got up and squeezed her shoulders but got no response. He ran into the main living area and saw the accused holding Rosie from behind. Mr Abbott says they were both standing. The accused was trying to cut Rosie's throat.
Mr Abbott ran and grabbed the accused from behind. The accused was still making slicing motions with his arm. At that point, Mr Abbott saw the knife. Rosie managed to get away from the accused. Mr Abbott and the accused struggled before Mr Abbott was able to disarm and restrain him. Mr Abbott threw the knife on the ground towards a couch and a cupboard so it would be out of reach. Later, the police found a bloodstained kitchen knife on the ground against the wall between a couch and a cupboard.
Meanwhile, Rosie found Ms Hendry in the same place Mr Abbott had seen her when he woke up. Rosie thought her mother was alive. She ran outside the house and around the corner. She called an ambulance before calling her father.
After a time the accused managed to get free when Mr Abbott relaxed his grip. The accused then ran into the kitchen towards the knife block on the kitchen bench. Mr Abbott went after him but by the time he got to him, the accused had grabbed another kitchen knife and had cut his neck with slicing motions. Mr Abbott pushed the knife away from the accused's throat and managed to disarm the accused a second time. Later the police found a bloodstained knife on a shelf in the kitchen. Mr Abbott eventually managed to push the accused outside the house. Once the accused was outside, Mr Abbott went to see if he could help Ms Hendry.
After making the phone calls, Rosie returned to the house. As she did so, she saw the accused sitting on the couch on the front veranda. She went inside and locked the door behind her. She went to her mother's bedroom, where Mr Abbott was on the phone to paramedics getting instructions on first aid. Mr Lang arrived shortly after that. He also tried to help Ms Hendry by applying CPR. Soon afterwards, Ambulance officers arrived at the house. They attended to Ms Hendry but they quickly realised that she was dead.
Police officers were next to arrive at the house. They saw the accused on the couch and administered first aid to him until another ambulance arrived. The accused had inflicted a significant injury to his own neck.
Both Rosie and Mr Abbott suffered knife injuries. Rosie had cuts to her neck and both of her hands, Mr Abbott had a cut to his hand. The accused, Rosie and Mr Abbott were all taken to Fremantle Hospital.
Upon post‑mortem examination, the cause of Ms Hendry's death was determined to be an incised wound to her neck. It measured about 160 mm in length when closed, and approximately 30 mm in depth. The right carotid artery was completely severed and the right internal jugular vein was almost completely severed. The neck incision was consistent with the cutting action on the neck surface starting on the left and sweeping upwards and backwards to the right. It was consistent with being inflicted from behind by the accused using a knife held in his right hand.
The accused's background
There is an apparent history of bi‑polar affective disorder on the accused's father's side. There is also a history of alcohol misuse and depression in the extended family. Specifically, his mother had suffered from depression and a half brother had or has a bi‑polar disorder.
At the age of six or seven the accused was diagnosed with severe dyslexia. In addition to dyslexia, the accused had speech difficulty when he was a young child.
The accused starting smoking cannabis when he was in High School. He told Dr Pascu and Dr Brett that he started smoking cannabis when he was about 15 and I have no reason to doubt that age. He also commenced using alcohol at about the same time but there is no history of alcohol abuse over the longer term.
At about the age of 16 the accused was assaulted. He lost two teeth and his jaw was broken. After this assault the accused's behaviour changed and he stopped socialising as much with his friends and in his sister's words he 'turned into a recluse'. The accused's cannabis use then increased to a significant extent.
After he left school the accused did some work for Mr Abbott and with his father but there is no evidence before me that he applied himself either to his studies or to developing a career.
There is evidence from a number of the accused's friends that over a period of time from the assault to a month or two before 15 December 2014, the accused was a very heavy user of cannabis. His friends describe his use variously as 'way too much', 'a lot', 'regularly since High School', 'he used to go pretty hard and I'm pretty sure all of those times we were together he'd smoked cannabis' and 'a heavy cannabis smoker'.
Rosie moved back to Perth from Melbourne in February or March 2014 where she had been living for a year. She says that she barely had conversations with the accused and that he used to hang out with his mates and smoke cannabis. She says that he would sit in his room and play computer games. She says that he would not always open the door when she knocked on it. Rather, he would talk through the door and only open it if there was a good reason to do so. Rosie says that she thinks the accused had 'severe social paranoia'. She said that he was nervous with conversations, even with her.
Rosie noticed that since she had returned from Melbourne, the accused had been smoking cannabis daily. She is not sure how much he smoked or how often but she could smell it from his room on most days and when she saw the accused she could see that his eyes were red. I have no reason to doubt these observations.
The accused told Dr Brett that his cannabis use was excessive and he would use it on a daily basis.
The accused told Dr Pascu that he first starting smoking cannabis on weekends at age 15 and that he then ceased for a while. At the age of 16 he starting smoking one or two cones a day to help him cope with the jaw pain and other pain following the assault. Again, I have no reason to doubt the accused's account.
There is also significant evidence which establishes that one or two months prior to 15 December 2014, the accused's use of cannabis decreased. Rosie says that the accused had been trying to stop smoking cannabis 'lately'. She says that he wanted to start changing and Ms Hendry told him he needed to get a job.
The accused's friends variously described a change in the accused's cannabis use. One says that he stopped smoking cannabis about a month before his grandmother visited from New Zealand. The witness said that the accused's grandmother stayed for about a month and that this was not that long before 15 December 2014. The witness says that when his grandmother left, the accused starting smoking again and the accused's anxiety levels seemed to increase. He spoke about being followed and seeing faces in trees and he was always anxious.
Another friend says that the accused had not been smoking so much in the month before 15 December 2014. Again, this was put down to his grandmother visiting and him wanting to make a good impression.
Another witness says that the accused stayed home a lot and was smoking a lot of cannabis but in the last couple of months he had been getting a bit better and had been coming out a bit more. That witness says that the accused told him that he had stopped smoking cannabis 'for a while'.
Another friend says that a couple of months before 15 December 2014, the accused stopped smoking cannabis and got rid of his bong.
The accused told Dr Pascu that in the month leading up to 15 December 2014, his use of cannabis had declined.
I accept that the accused had reduced his cannabis intake a month or so before 15 December 2014, but I do not know exactly when this occurred and the extent of the reduction in his use.
As I have already stated, I find that the accused had some cannabis on Saturday evening, 13 December 2014, at the basketball court.
One of the accused's friends who was at the basketball court says that he did not see anyone smoke cannabis that night. However, that witness arrived at the basketball court after the other young men and so it is possible that they used the cannabis before he arrived. Another of the accused's friends says that they smoked some cannabis but he cannot remember who used it. Another witness says he did not see the accused use cannabis that evening. One of the witnesses says that he took a bong to the court and the accused smoked cannabis.
The accused told Dr Pascu that a few nights before 15 December 2014, he was at the basketball court and he shared some dope. He thought that it had some DMT in it. It seems that at the time the accused thought it had some hallucinogenic drug in it because of the effect it had on him.
The accused also told Dr Brett that he last used cannabis two days before 15 December 2014 and he thought at the time that it had been laced with a hallucinogenic drug.
On 16 December 2014 at 4.18 am a sample of blood was taken from the accused. An analysis of it did not detect any tetrahydrocannabinol or other common basic drugs. A sample of urine was taken from the accused on 16 December 2014 at 5.30 pm. Its analysis indicated a number of prescription drugs which would have been given to the accused at hospital on that date. However, it was negative for cannabinoids by immunoassay, negative for common synthetic cannabinoids metabolites by immunoassay and other common basic drugs were not detected.
Dr Pascu and Dr Brett have different opinions as to whether these analyses indicate that the accused did not have any cannabis on the evening of 13 December 2014. Dr Pascu does not accept that the accused used cannabis on that evening because she said that she would expect that if he had it would have appeared in the analysis of his blood and urine. She expects that even if somebody is not a very regular user of cannabis it would be revealed in a drug screen one‑three weeks after they had last used. Dr Pascu discounts the accused's account of having used cannabis that evening because of his mental impairment.
Dr Brett says that he had no reason to disbelieve the accused's account. He said that the dosage was likely to be lower in a single use and so the accused's consumption on the evening of 13 December 2014 may not have reached the cut off level for testing on 16 December 2014. Dr Brett says that he has seen a lot of clients who had clearly been using drugs but who had had negative test results.
Both Dr Brett and Dr Pascu are experienced psychiatrists and clinicians. They have both worked in forensic psychiatry and, in particular, with patients who were drug affected or who claimed to have been drug effected. In light of the conflict between their evidence, my view is that I should rely on the evidence of the lay witness and the account of the accused. Despite his undoubted mental impairment, since the accused has been medicated and his psychosis has largely resolved, he has been able to give a good history which is confirmed by independent testimony. I am satisfied beyond reasonable doubt on this evidence that the accused had a small amount of cannabis on the evening of 13 December 2014.
Accused's account of his mental state
The accused gave the following account to Dr Pascu of his mental state from after the assault to 15 December 2014:
After the assault I started to feel more anxious. I stopped drinking and stopped going to parties I started smoking more dope, as I ended up self‑medicating for the painful jaw and for the anxiety. Thinking back, I think things started to happen about 15 months before the incident. The dope was also making me feel more paranoid. The voice started as well about 18 months back. My dad told me that he noticed more change in my behaviour about two months this happened.
…
Some nights at home I felt that this thing which was created in my mind about old people and Christmas. I thought, like, people were getting in my head saying strange things, that they are going to do bad things. I thought that they could switch off my mind at any point. I thought someone was doing sexual things to me while I was switched off. This got really bad about two days before this happened. I thought it was normal to feel like that, something to do with Christmas time with Father Christmas.
…
Approximately two weeks before the incident I found a mark in the tree in the front yard. It looked like devil’s face was there. I took a photo with my camera. I thought it was a sign from the trees that the world will end. I showed this sign to my family one time, about one week before the incident. I was at the basketball court late at night with a couple of my friends. It was me, Eva and Patrick looking at stars. Patrick asked where was the moon. We all looked around and couldn’t see it. I got all worried about that. A few days later, I was worried again that the moon disappeared and that meant that the world was ending.
…
Three or four days later I had a conversation with my mum about the moon disappearing and the world ending. Mum reassured me it was okay, it was an eclipse but I continued worrying that the world was ending. I was getting more and more worried by this. Finally, I found the moon the next day. I felt better and I told mum I found the moon. A few nights before the incident, we got out at the basketball court and shared some dope. I didn’t have much as I was feeling weird. I felt that people around me, my friends, could communicate from the distance.
I thought that everyone could do that, messing my thoughts, putting thoughts in my head. I even thought at the time that my friend put some DMT in the smoke. I remember we played a bit of basketball and sat down. I started getting these weird thoughts and I still felt that I was normal. …
…
When playing basketball, I thought a gun was pointed at my head. I thought I had to play hard or it would kill me. I thought my stepdad and the groundkeeper would kill me and they were going to bury me at the basketball court. I saw some time ago that not far from the basketball court, there was a green patch next to the court. I thought that someone was buried there. We thought it was strange. It was so green. We played there every about two weeks and we were always curious about the green patch.
…
My thoughts were all dodgy like something was interfering with them. I went home, I walked to my mum – to my mother’s room. She wasn’t there. My stepdad was there. I thought we were being watched and my mum was in it with them. Maybe the mafia. I don’t really know. One of my friends was telling me about tunnels on the Fremantle.
…
I somehow felt that my stepdad became part of the group doing this to me. They wanted to see how good I was at basketball. It felt like everything was part of the mafia or something like that, the government was corrupt by those people. I believe that my sister, Rosie, was a hostage, but at one point, I thought my mum was a willing participant. It was all really confusing and worrying. I remember that evening, I walked to the kitchen and there were two minties on the table – one blue and one red as if they were packed just for me.
I thought if I took the red one, I will die on the planet. If I took the blue one, life would just continue on earth. In the end I ate both and I felt in limbo. It felt scary as if all I did was no hope, felt very stressed. I went to my room and felt really weird. My mum came home so I realised it was all fine and I went to sleep.
…
On Sunday – Sunday was just a normal day. I cannot really remember much of it. On Monday, I woke up just like usually, went and had coffee with mum and my stepdad. When I went to the coffee shop, I felt that everybody was communicating with my mind. I was really feeling paranoid. I played noughts and crosses with my mum. My stepdad went to work. We finished coffee with mum and she dropped me off at Replants. That’s my stepdad’s business.
…
… and after that my stepdad asked me to go together with Jacob and help a colleague of his to install grass trees. I was feeling more and more paranoid.
I remember we got there. We assessed the job. We had to get the grass tree to the person’s house. I thought we were planting grass trees on a dead body buried there. I thought that it was my mother or my sister who was buried there. I thought I would be next. The mafia or something would kill me, as they killed my mother and my sister. We kept working. I didn’t say anything to Jacob. We installed the two grass trees.
…
We went to the next job. I thought that was when I was going to be killed and buried. We got to the job and assessed it. We got the grass trees. I ended up putting the knife to my throat. On the way there, I was chatting in my mind. I thought Jacob was communicating with my mind. I thought Bruce, my stepdad, was involved with the government and got Jacob to bury me. As I said, I got a knife to my throat, as I thought I would die anyway.
Jacob managed to talk me down and to put away the knife. I told him I was using the knife to shave, but he knew that was not true. We managed to finish the job. I think I was relieved I didn’t kill myself. On the way home I heard on the radio a song called I Love Myself. I just knew that was for me. I had a sad feeling that I had just buried my mum and my sister under the grass tree. Jacob took me home. It was about 5 in the afternoon.
…
When I got home, I went to my mum’s room. They were both there, mum and stepdad. He was on the phone. I told mum that Rosie was in the ground, buried. Mum came with me to my sister’s room. She called my sister, as she was in the bathroom. I believe that, when Rosie answered, it must have been a voice recording. When Rosie came out, I touched her and I felt relieved that she was there. At first I thought it was a hologram of Rosie.
We all had a group conversation about the day. Jacob told them about the knife incident. I realised when I got home Bruce was talking to Jacob on the phone. My mother drove us to the emergency department at Fremantle Hospital. All these things were going on in my mind. I really miss my mum. I could tell her what I was thinking and she would help reassure me that everything will be okay.
We waited in ED with mum for about two hours, as she was told that the triage at Alma Street was closed. We didn’t talk much. There were lots of people there and things were becoming overwhelming, just too many people there. Things in my mind were getting worse. Mum drove us home. I thought it would be better if we crashed the car, as things were too bad. I thought that we would just be killed anyway and buried, Mum, Rosie and me.
…
We got home. It was quite late. We played a board game with mum and Rosie. Stepdad was asleep. What they say happened, it did happen. I thought it would be better if I did it, kill all of us, mum, Rosie and myself, than being buried alive. We were in danger. I loved them. That’s why I had to do it myself, so we would not be buried alive. I thought Bruce was part of it all. I knew that we were in danger. I had to do something. Otherwise, we would have been killed. [86 - 91].
Dr Brett was not asked to give a full account of the history given to him by the accused told him but there is nothing in his evidence to indicate that he received any different account from the accused to that given to Dr Pascu.
Barring the question of the accused's drug use on the evening of 13 December 2014, the parties accept the accused's account as an accurate reflection of the accused's experiences and beliefs. I accept it also.
The accused's mental health after the incident
Whilst the accused was in the intensive care unit at Fremantle Hospital he was reviewed on a number of occasions by Dr Hart, a psychiatrist. Dr Hart made a preliminary diagnosis of acute psychotic episode, likely part of a prodromal illness with prominent negative symptomology, complicated by limited insight on the background of early neurodevelopmental pathology.
On 21 December 2014 the accused was transferred to the Frankland Centre, the secure forensic psychiatric unit. A diagnosis was made by Dr Corbu, his treating psychiatrist, that the accused was suffering a psychotic disorder. Since that time the accused has been detained at the Frankland Centre as an involuntary patient.
Since being detained at the Frankland Centre the accused has been treated with a combination of anti‑psychotic and anti‑depressant medication. He has not been taking illicit substances. When Dr Pascu saw him in July 2015 she formed the opinion that he had schizophrenia, likely paranoid type. He still had some positive symptoms and there was evidence of obvious negative symptoms. She is guarded as to the accused's prognosis. Dr Pascu said that since his admission to hospital he has been treated with a number of combinations of anti‑psychotic medications. He has not been able to tolerate one of the most effective drugs because of its side effects. Dr Pascu said that despite consistent treatment since December 2014 there has not been a significant improvement in his mental state. The positive symptoms of schizophrenia such as hearing voices, having delusions and being paranoid have improved but they have not entirely disappeared. The negative symptoms of schizophrenia such as the blunted affect, being incongruous and avolition (not doing things) remain.
Dr Brett saw the accused in September and October 2015. I refer to his diagnosis later in these reasons. His account of the accused's symptomatology is not different to that of Dr Pascu.
Was the accused mentally impaired when he killed Ms Hendry and injured Rosie?
The evidence is that the accused's mental state was the same or similar at the time he killed his mother and at the time he injured his sister. Consequently, I will not distinguish between those occasions.
Dr Pascu and Dr Brett gave evidence that at the time the accused killed his mother and injured his sister he was mentally impaired. Dr Pascu is of the opinion that at that time he had the onset of a schizophrenia with prominent negative symptoms which, normally would be seen in more advanced forms of schizophrenia. She says that it was a first episode psychosis but she identifies it with the development over a longer period of schizophrenia. She is of the opinion that this illness had been developing for approximately two years beforehand, if not longer. On the basis of the statements of family members, she thinks that the accused's behavioural changes, linked to the development of his mental impairment, may have started even before the age of 16.
Dr Pascu gave evidence that the accused has a number of risk factors for the development of schizophrenia. These include a relevant family history, neurodevelopmental deficits as evidenced, for example, by his dyslexia, the trauma of the assault when he was about 16 and his chronic cannabis use.
Dr Pascu is of the opinion that at least in the day leading up to but possibly longer than that, the accused was functioning in a delusional reality where he was convinced that his loved ones were going to be killed. She is of the view that in his mind, that was his reality. Consequently, she believes:
[H]is cognitive functioning and his judgment was affected by his illness to the point …the decision he made at the time was coloured by his impaired judgment and because of … the acute psychosis (ts 105).
Dr Pascu described schizophrenia as a 'group of disorders which are characterised by distortions of a person's thinking, cognition, perception, affect, emotion'. She said that for a psychiatrist to make a diagnosis of schizophrenia, there had to have been some or all of these symptoms for at least six months. In cross‑examination, Dr Pascu said that there also needs to be evidence of the condition having an impact on the person's functioning.
Dr Pascu acknowledged that a person could suffer a psychotic episode that is caused by the use of cannabis. She said that in her experience the accused presented with symptoms that were different from those exhibited by people suffering a psychotic episode from acute intoxication. Further, she said that patients who have psychotic symptoms as a result of regular, chronic and heavy use of drugs have a different presentation from that of the accused. Also, if someone suffered an acute psychotic episode as a result of drug use in her experience it might continue for a few days but she would not expect the symptoms to be present two years afterwards, as in the case of the accused.
Dr Brett is of the opinion that at the relevant time the accused was suffering from a first‑episode psychosis, most likely to be schizophrenia. This was in conjunction with cannabis abuse, a depressive order with anxiety features and historically, a specific reading disorder. He says that the modern trend in psychiatry is to make an initial diagnosis of first‑episode psychosis and to call it that for 'the first year or two' until a definitive diagnosis could be made as there are a lot of causes of psychosis and it is difficult to be absolutely accurate in the first assessment.
Dr Brett says that it seems that the accused had some prodromal, or early symptoms, of schizophrenia over an extended period. He agrees with Dr Pascu that the accused has a lot of risk factors relating to the development of schizophrenia.
Dr Brett testified that there is a very clear relationship between cannabis use and psychotic disorders. He said that the difference between schizophrenia and a drug induced psychosis is that the schizophrenia is chronic. It has got a variable prognosis. However, once it is triggered by a psychotic episode, it continues. Whereas, a drug induced psychosis would be reducing after 48 hours.
Dr Brett is of the opinion that the accused's cannabis use, particularly on the evening of 13 February 2014, triggered an episode of schizophrenia which got increasingly worse and which was unrelated. By 'unrelated' Dr Brett meant unrelated to the cannabis intoxication. Dr Brett is of the opinion that the accused had a simmering psychosis for a number of weeks but that in the two days prior to the evening of 15 December 2014, the psychosis became much more florid.
I am satisfied on the basis of all the evidence, including the psychiatric evidence, that at the time the accused killed Ms Hendry and injured Rosie he was suffering from a mental impairment. That mental impairment was a mental illness as defined in the Criminal Code. It was a first‑episode psychosis, probably schizophrenia.
His mental impairment was not a condition that resulted from the reaction of a healthy mind to extraordinary stimuli. This is because I accept that the accused has suffered prodromal symptoms of schizophrenia for a significant period of time. It is unnecessary for me to determine the exact length of time he had those symptoms. It is sufficient that I am satisfied that he did not have a healthy mind for at least the period from the assault on him when he was about 16.
The cannabis which the accused used on 13 December 2014 and prior to that date may have adversely affected his already unhealthy mind. However, the fact that his mental illness has persisted for 18 months after the relevant events, the history of prodromal symptoms over a lengthy period, the presence of a number of other risk factors for developing schizophrenia, the evidence of the accused having paranoid and delusional thoughts before 13 December 2014 and the evidence as a whole, satisfies me that the accused's mental illness which he was suffering on 15 December 2014 was not a condition that resulted from the reaction of a healthy mind to extraordinary stimuli.
Did the accused's mental impairment deprive him of the capacity to know that he ought not do the acts which killed Ms Hendry and injured Rosie?
Dr Pascu gave evidence that given the accused's acute psychosis, which affected his entire thinking at the relevant time, the decision he made to act was in his view the morally right decision to make. She is of the opinion that his reality 'coloured his entire belief system'. Dr Pasu said:
I think – when I saw him, I think the first time he described almost an altruistic desire to help his mum, his sister and himself to get away from this awful thing of being buried alive. So it was almost he felt that he had to do that because he loved them and he didn’t want other people to hurt them (ts 105 - 106).
Dr Pascu testified that the accused was deprived of the capacity to know that he ought not do the relevant acts because 'his thinking, cognition and judgment at the time were coloured by the acute psychotic symptoms' he was suffering.
Dr Brett gave evidence that in his opinion the accused was deprived of the capacity to know that he ought not do the relevant acts. He said that the accused was in such a state of psychosis that he believed his actions were morally right. Dr Brett testified that the accused thought that he was attempting to save his mother and his sister and the only solution for him within this psychotic state was to act as he did.
I am satisfied that the accused's mental impairment deprived him of the capacity to know that he ought not do the acts by which he killed Ms Hendry and attempted to kill Rosie. Because of his psychosis he was of the opinion that his actions were morally good and he was unable to think rationally of the reasons which would lead ordinary people, who were not suffering his mental impairment, to consider his actions to be wrong.
Did the accused intentionally cause himself to become intoxicated?
As a result of the above findings, the accused is not criminally responsible for the relevant acts unless he intentionally caused himself to become intoxicated: Criminal Code s 28(2). Before I consider this question in more detail, it is relevant to note that the accused acknowledges that the onus is on him to satisfy me on the balance of probabilities that he did not intentionally cause himself to become intoxicated. Further, the relevant issue under s 28 relates to intoxication by cannabis. There is no suggestion that he was intoxicated by any other substance or that he was stupefied in any relevant sense. There is no evidence that raises the possibility that he was intoxicated in order to afford an excuse for the commission of an offence.
The Criminal Code s 28 provides that the defence of insanity applies to a person whose mind is disordered by intoxication without intention on his part by drugs. However, it does not apply to someone who has intentionally caused themselves to become intoxicated.
In respect to the Criminal Code s 28, I find that the accused at the relevant times was not intoxicated. Consequently, the express provisions of s 28 do not apply to the facts of this case.
The reason why the accused's mind was not disordered by intoxication is that at the time the accused did the relevant acts his mind was disordered by his mental illness. That mental illness may have been aggravated or even to some extent triggered by cannabis use on the evening of 13 December 2014. However, by the time the accused did the relevant acts the cannabis he used on 13 December 2014 was not affecting him. He was not intoxicated by it. Any intoxication he had experienced as a result of the cannabis use was not operative in any relevant sense.
In this respect, I rely particularly on the evidence of Dr Brett who says that from his clinical perspective intoxication by cannabis would occur within around six hours of taking the drug. That is, the intoxicating effect would last for about six hours. Dr Pascu's evidence was not substantially different.
Thus, the accused has satisfied me that at the time he did the relevant acts he had not intentionally caused himself to become intoxicated. He was at the time of the commission of his acts unaffected by the cannabis which he had taken on the evening of 13 December 2014. Intoxication on 13 December 2014, if it occurred, or at any earlier time or the combined effects of intoxication at any other time than the evening of 15 December 2014 are not disentitling factors for the purpose of s 28(2). Such intoxication may have contributed to the mental illness which on the evening of 15 December 2014, deprived him of the capacity to know that he ought not do the relevant acts but that does not mean that he is disentitled to the application of the insanity provisions in the Criminal Code s 27.
Conclusion
I am satisfied beyond reasonable doubt that the accused killed Joan Marie Hendry. I am satisfied on the balance of probabilities that the accused is not criminally responsible for his acts which killed Ms Hendry on account of unsoundness of mind. I am satisfied that at the time of doing those acts he was in such a state of mental impairment as to deprive him of capacity to know that he ought not do the acts. I am satisfied on the balance of probabilities that at the time of the commission of those acts he had not intentionally caused himself to become intoxicated.
I am satisfied beyond reasonable doubt that the accused cut Rosanna Lang. I am satisfied on the balance of probabilities that the accused is not criminally responsible for his acts by which he cut Rosie on account of unsoundness of mind. I am satisfied that at the time of doing those acts the accused was in such a state of mental impairment as to deprive him of capacity to know that he ought not do those acts. I am satisfied on the balance of probabilities that at the time of the commission of those acts the accused had not intentionally caused himself to become intoxicated.
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