The State of Western Australia v Marotta
[2018] WASC 329
•31 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MAROTTA [2018] WASC 329
CORAM: JENKINS J
HEARD: 22 - 23 OCTOBER 2018
DELIVERED : 31 OCTOBER 2018
FILE NO/S: INS 429 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
VINCENZO CARLO MAROTTA
Accused
Catchwords:
Criminal law - Trial by judge alone - Wilful murder - Insanity - Whether accused was 'in a state of mental disease' - Whether accused lacked capacity to know the he ought not kill - Whether accused lacked capacity to control his actions which killed
Legislation:
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)
The Criminal Code (WA)
Result:
Verdict of not guilty on account of unsoundness of mind
Custody order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr P M Usher |
| Accused | : | Ms G M Cleary & Ms K A Shepherd |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Ms K A Shepherd |
Case(s) referred to in decision(s):
Evans v The State of Western Australia [2010] WASCA 34
Hone v The State of Western Australia [2007] WASCA 283
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Porter [1933] HCA 1; (1933) 55 CLR 182
Radford (1985) 20 A Crim R 388
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
Ward v The Queen (2000) 118 A Crim R 78
JENKINS J:
The accused is charged on indictment that on 23 November 1989 at East Perth he wilfully murdered Van Phan Nguyen contrary to TheCriminal Code (WA) (the Code) s 278 (repealed).
The accused applied for trial by judge alone and on 7 May 2018 McGrath J ordered that the accused be tried by judge alone.[1]
[1] Criminal Procedure Act 2004 (WA) s 118.
At the commencement of the accused's trial before me, he entered a plea of not guilty on the ground of unsoundness of mind.[2]
[2] Criminal Procedure Act s 142, s 126(1)(d).
The judgment in a trial by judge alone must include the principles of law applied and the findings of fact on which the judge has relied.[3]
[3] Criminal Procedure Act s 120(2).
These are the principles of law which I have applied and the findings of fact on which I rely for finding that the accused is not guilty of wilful murder on account of unsoundness of mind.[4]
[4] Criminal Procedure Act s 146.
The evidence
The State tendered a statement of material facts, the recording of the interview between police and the accused conducted on 2 November 2016 (the 2016 EROI) and various documents referred to in the statement of material facts and the 2016 EROI. It also tendered a large number of medical records relating to the accused.
The State called Dr Steven John Reuben Patchett a consultant forensic psychiatrist to give oral evidence. His two written reports about the accused were tendered in evidence.[5]
[5] Exhibits 10 and 11.
The accused elected not to give evidence but tendered some written admissions and admitted the truth of the statement of material facts. He called Dr Victoria Pascu a consultant forensic psychiatrist to give oral evidence. Her written report about the accused was tendered.[6]
[6] Exhibit 12.
As a result of the combination of the accused's formal admissions, the application of the Evidence Act s 79C, the exception to the hearsay rule for statements made by a person about his bodily (including mental) feelings and symptoms contemporaneously to the time when his state of health was in question[7] and the parties’ consent, I can rely on the statements of opinions of doctors and other medical professionals recorded in medical notes and reports as evidence that those persons held those opinions. For the same reasons I can also accept the accused's statements about his mental feelings and symptoms made contemporaneously to the time when his state of health was in question as evidence of the truth of those statements. I can also accept the inculpatory and exculpatory statements made by the accused in the interviews with police and other conversations during which he made admissions as to his involvement in the murder of Mr Nguyen as evidence of the truth of their contents.
[7] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, 647.
Admitted facts
The accused made the following admissions[8] and I accept them as sufficient proof of the facts admitted without other evidence:
(1)At approximately 8.30 pm on 23 November 1989 on the pathway adjacent to the railway line and parallel with Wellington Street, Perth Vincenzo Carlo Marotta stabbed Van Phan Nguyen multiple times to the chest, head and body.
(2)At the time of stabbing Van Phan Nguyen Vincenzo Carlo Marotta intended to
do serious harm tokill Van Phan Nguyen.(3)At 10.59 pm on the same day Van Phan Nguyen died as a result of the stab wounds inflicted by Vincenzo Carlo Marotta to Van Phan Nguyen's head and chest.[9]
[8] Evidence Act 1906 (WA) s 32.
[9] Exhibit 3 substituted.
The accused's counsel tendered the written admissions in their unamended form after the prosecutor's opening. Prior to the accused closing his case I raised with the parties the fact that as a consequence of the form of the admissions there was an issue between the parties as to whether the State had proved that the accused intended to kill the deceased. The accused then amended the admissions to read as above. The accused's counsel told me that it had been the intention of the accused to admit all the elements of the offence. However up until the amendment to the admissions was made that had not occurred.
The only relevance of that history is that up until the amendment was made I had taken the view that the Criminal Procedure Act s 93 did not apply to the trial because I was not satisfied that the only issue between the accused and the State was whether under the Code s 27 the accused was not criminally responsible for his acts on account of unsoundness of mind. Rather, I had conducted the trial on the basis that it was a trial by judge alone governed by the Criminal Procedure Act s 119 and s 120.
The accused also admitted[10] the following facts relating to the elements of the charge of wilful murder:
[10] Evidence Act s 32. The admissions are contained in exhibit 1, statement of material facts.
1.The deceased was 52 years old as at the date of his death.
2.The deceased was ordinarily resident in Parry Street, East Perth.
3.The accused (date of birth 8 September 1962) was 27 years old as at the date of Mr Nguyen's death.
4.As at the date of Mr Nguyen's death the accused lived with his brother at a unit in Herdsman Parade, Wembley.
5.At about 8.20 pm the deceased purchased a pair of black leather joggers and two pairs of thongs at a shop in Hay Street, Perth.
6.At about 8.30 pm the deceased purchased plastic yellow wet weather pants and a pair of black rubber boots at Wellington Street, Perth (the surplus store).
7.After leaving the surplus store the deceased proceeded to walk home to East Perth along the path adjacent to the railway and parallel with Wellington Street.
8.At the same time, the accused was walking near to the train line across the road from the surplus store. He had with him a knife (a Falcon‑Inox dagger like an envelope opener which he had bought from the surplus store about 18 months earlier) in its sheath in his pants.
9.The accused started hearing voices telling him to kill people. He thought he saw Michael, an archangel, and Carmen (Eve) and that he knew they were getting together and getting him jealous because he was thinking he lived before as Adam as well as Daniel and Leonardo Da Vinci and thought 'what's he doing with Eve?'
10.The accused became angry and upset. When he heard the voices he thought he saw the devil and spirits on top of the police station on Beaufort Street. He thought they were up there watching him when he was down there.
11.He saw the deceased walking in front of him and thought 'alright, these voices are telling me to kill people and that is what I've got to do, that's alright, I'll kill this bloke'.
12.The accused approached the deceased from behind and stabbed him repeatedly in the head, chest and upper body.
13.The accused ran off, washed his hands of blood from stabbing the deceased and threw the knife in a rubbish bin. He dropped the knife sheath at the site.
14.Soon after, the deceased was located by witnesses lying on his back and across the path behind the St John Ambulance building, Wellington Street, along the railway line towards Moore Street, with the shopping bags around him. Witnesses observed that there was a lot of blood coming from the deceased's head. His left arm was raised. At about 8.55 pm emergency services were called.
15.The deceased was examined by the paramedics who did not find any signs of life.
16.Police attended and secured the crime scene.
17.At 10.59 pm pathologist Dr Hilton attended the scene and certified the deceased as life extinct.
18.After stabbing the deceased the accused walked to his brother's unit in Wembley.
19.Shortly after midnight the accused's brother returned to his unit after work and found the accused there. The accused said to him not to tell the police anything however his brother did not know what the accused was talking about. The accused stayed that night at the unit.
20.The next day on Friday, 24 November 1989 at about 6.00 am police returned to the crime scene and located the accused's brown leather knife sheath 40 ‑ 50 m along the walkway leading towards McIver Station, approximately 80 m from where the deceased had been located the evening before.
21.That morning the accused asked his brother for money. His brother gave him $150 and the accused left the unit. A few days later on 28 November 1989 the accused asked another brother for money. He recalls the accused telling him that he had done something bad and wanted to go away. He gave the accused $100 and observed that the accused was very angry. When he left him the accused told him not to speak with police.
22.At about midday on 28 November 1989 the accused went to a travel agent in Osborne Park and said to the sales employee that he wanted to go to Adelaide that day by bus and to purchase a one way ticket. The accused gave his name as Vince Marotta. He was told that there was a bus leaving later that day and he purchased and paid for the ticket. The accused subsequently caught this bus at 7.00 pm. His movements immediately thereafter are not known other than he withdrew money from his bank account on 8 December 1989 in Adelaide and on 19 December 1989 in Sydney.
23.Also on 28 November 1989 police attended at 'Cut It Out' knife shop in Perth and showed the proprietor the knife sheath that had been located by police near the crime scene. The proprietor made the following observations:
(i)it had an eagle crest embossed on the front;
(ii)the same crest was embossed on the clasp button;
(iii)it was one of a range of ten which he used to stock made by Falcon‑Inox;
(iv)it matched a sheath that contained a Spanish throwing knife; and
(v)this knife had a leather handle and a single‑edged blade about 15 cm in length which had a pointed tip in the style of a dagger.
24.The proprietor provided police with a sample knife and sheath.
25.On 24 November 1989 a post‑mortem was conducted by Dr Hilton. Dr Hilton identified the cause of the deceased's death as penetrating wounds to the head and chest, namely multiple penetrating wounds involving penetration of the brain, penetration of both lungs and penetration of the heart.
26.In summary Dr Hilton made the following observations:
(i)the victim was 164 cm in height and 66 kg in weight;
(ii)the incised wounds were to seven separate areas of the victim's body:
(iii)group 1 - central x 3 incised wounds;
(iv)group 2 - left chest x 3 incised wounds;
(v)group 3 - left shoulder x 3 incised wounds;
(vi)group 4 - left arm x 6 incised wounds;
(vii)group 5 - left hand x 3 superficial incised wounds;
(viii)group 6 - face x 1 incised wound;
(ix)group 7 - back of head/neck x 9 incised wounds; and
(x)there were 28 incised wounds.
27.Police provided the sample knife from 'Cut It Out' to Dr Hilton. Dr Hilton told the police that he was of the opinion that the weapon used to inflict the deceased's wounds would be very similar in blade length and width to that of the sample knife provided and have at least a 10‑cm double edged blade. The sample knife - if used with sufficient force - was capable of producing the injuries to the deceased, especially the penetrating skull injury.
28.Dr Hilton was of the view that the 20 wounds to the head, mouth and left arm were most likely the first wounds inflicted and once the victim had fallen on his back he was stabbed a further seven times in the chest.
29.On 18 January 1990 information was received from a police officer nominating the accused as a person of interest for the murder of the victim. At that time the police officer was dating the accused's sister. It was the cryptic conversations that she had with the police officer which caused him to conduct preliminary inquiries into the accused.
30.Further inquiries by police revealed the accused's sometimes strange behaviour, his departure form Perth following the murder and that he had stabbed a person(s) in 1988.
31.The accused's brother was subsequently shown the sample knife and sheath by police and he stated that they were the same as those he saw the accused with when the accused was staying at his unit after being released from prison on 22 October 1989 and before he left to go interstate on 28 November 1989.
32.On 22 January 1990 a Look Out To Be Kept For (LOTBKF) the accused was sent to Queensland police in Brisbane.
33.On 8 February 1990 the accused was arrested in Queensland on a charge of vagrancy and sentenced to 3 days' imprisonment.
34.On 9 February 1990 Queensland Police notified Major Crime Squad detectives in Western Australia of the accused's arrest as a result of the LOTBKF and that he was being held at the Southport Watch house until 10 February 1990.
35.On 10 February 1990 Western Australian detectives attended the Southport Watch house and interviewed the accused.
36.After interviewing the accused the detectives were of the view that there was no direct evidence linking the accused to the death of Mr Nguyen. This was due to their opinion that there was insufficient evidence to charge the accused with the murder and he was released without charge from the Southport Watch House.
37.On 12 March 1990 Western Australian detectives travelled to Queensland to interview the accused together with a Queensland police officer and a nurse after he had been admitted to the John Oxley Memorial Hospital (JOMH). During the interview the accused stated that:
(i)I threw it (the knife) away;
(ii)it is where the television is;
(iii)I don't know (why I did the old bloke in East Perth); and
(iv)I don't know (where I went after that).
38.The detectives made the following observations:
(i)At first the accused was very aggressive and uncooperative. During the course of the interview he became less agitated and responded guardedly to questioning.
(ii)The accused acknowledged that the knife sheath found near the scene was his but could not and would not say how it came to be on the walkway.
(iii)The accused was shown a photograph of the sample knife and acknowledged that it was exactly the same as the knife he had when he left Canning Vale Prison on 22 October 1989.
(iv)The accused stated that he had disposed of his knife because it may link him to the murder. He threw it in a large rubbish bin at the rear of the flats where his brother lived.
(v)He drew a diagram of where he threw the knife.
(vi)The diagram showed the layout of the area in relation to Herdsman Parade and Marlow Street.
(vii)The accused became agitated again towards the end of the interview and eventually walked out.
39.The accused was told that he would be visited again in the morning to see whether he would be willing to speak to the detectives again.[11]
[11] Exhibit 1, statement of material facts.
40.On 13 March 1990 Western Australian detectives re‑attended the JOMH to interview the accused and they made the following observations:
(i)The accused was agreeable to being interviewed.
(ii)He was a lot calmer and responded to questioning a lot more favourably.
(iii)He again confirmed that the sheath was his and where he had thrown the knife.
(iv)He would not discuss details of the murder though as he stated that he wanted to put it out of his mind and did not want to think about it until he had to, that is, until he went to court.
(v)He then stated that he would be willing to discuss the offence after he had settled onto the medication that he was being given as part of his treatment.
(vi)He finally acknowledged that it was a waste of time for police to be looking at anybody else for the murder of Mr Nguyen.
41.On 19 April 1991 the accused was sentenced to life imprisonment with hard labour in the Supreme Court of Queensland at Brisbane by Justice Shepherdson for five offences of attempted murder, three offences of aggravated burglary and one offence of entering dwelling house with intent.
42.On 20 September 1993 Western Australian detectives were refused permission to interview the accused.
43.On 6 July 1994 the accused was granted an interstate prisoner transfer from Queensland to Western Australia. He was discharged from custody in Queensland and received at Casuarina Prison Perth the same day.
44.On 18 December 2002 the accused was asked to participate in a record of interview with police but he refused to answer questions.
45.On 15 October 2003 police interviewed a witness who knew the accused in prison. He told police that during their conversations the accused stated that he had committed several murders. The accused told him that the first person he stabbed was in Perth and then he caught a bus to Queensland.
46.On 22 October 2003 police interviewed a witness who met the accused in Casuarina Prison in 1997. The accused told him that he had gotten away with murder in Perth. The witness told police that amongst other things the accused said to him:
(i)I had been told to kill a person in Perth, the voices told me in my head to do it;
(ii)It happened in the central city;
(iii)I wandered into a below ground car park;
(iv)I often wander around the city but always carry a knife;
(v)A young bloke walked down into the car park and the voices told me to stab him;
(vi)The voices told me to kill him;
(vii)I lost the sheath of the knife;
(viii)I dropped it near the crime/as I was leaving the crime;
(ix)I threw the knife down a stormwater drain;
(x)I cleaned up in a toilet area; and
(xi)The person I stabbed had some sort of disability and the voices in my head told me to stab him.
47.The accused had boasted to the witness that he got away with this offence and that he had outsmarted the Major Crime Squad.[12]
[12] Exhibit 1.
48.On 14 April 2006 the accused was released from the Frankland Centre under parole conditions and his care was transferred to the State Forensic Community Mental Health Service.
49.In January 2016 the Western Australian Police Special Crime Squad reopened the investigation into the death of Mr Nguyen.
50.On 2 November 2016 while he was a voluntary patient at the Frankland Centre the accused was arrested on suspicion of the murder of Mr Nguyen.
51.The accused participated in the 2016 EROI during which he refused to answer questions relating to the death of Mr Nguyen on the basis of legal advice. At 4.30 pm the interview was resumed and the accused provided amongst other information the following information:
(i)What I can remember, I was walking in this little car park next to the train line across the road from the army surplus;
(ii)I had a knife on me in a pouch down my pants;
(iii)I started hearing voices telling me to kill people and I thought I saw Michael, an archangel and Carmen, who's Eve, that I know getting together and getting me jealous because I was thinking I lived before Adam as well as Daniel and Leonardo Da Vinci and that;
(iv)And I though what's he doing with Eve?
(v)And I was angry and upset and I heard the voices and I looked on top of the building an I thought I saw the devil and spirits up on top of the building, the police station down on Beaufort Street;
(vi)I thought they were up there watching me when I was down there;
(vii)I lost control;
(viii)And I saw one guy walking down and I said alright, these voices are telling me to kill people and that;
(ix)What I've got to do, I said, that's alright, I'll kill this bloke;
(x)And I went frenzy and stabbed him in the head and I stabbed him in the chest;
(xi)And I ran off down the road and washed my hands and threw the knife in a rubbish bin and remembered when I got home that I'd lost the pouch at the site;
(xii)I walked from the city;
(xiii)I washed my hands under the tap cause I had blood on them;
(xiv)I never took his wallet;
(xv)I never searched him, I was too scared and worried;
(xvi)It was a Falcon‑Inox dagger;
(xvii)I bought it from the army surplus about 18 months before because I had it when I stabbed the bloke in the nightclub;
(xviii)It was like an envelope opener;
(xix)I stayed at my … brother's place for a couple of nights;
(xx)When I was at his place I was hearing the voices as well and they said to attack him. And I opened the door and saw him in bed and I thought no, this can't be happening. So I ran off down the road;
(xxi)I was hearing voices for about a year on the streets;
(xxii)I wasn't on medication and had been diagnosed;
(xxiii)(The voices were telling me) to kill people, cut my hand off, drink petrol, eat shit, cut my penis off;
(xxiv)(My intention in stabbing the victim was hoping) that he died;
(xxv)I think I stabbed him once in the head and some times in the chest;
(xxvi)It happened really fast;
(xxvii)The voices were telling me to use my left hand as well;
(xxviii)I am right handed;
(xxix)I was walking behind the victim;
(xxx)I saw his shoulders and the back of his head;
(xxxi)I didn't want to do it and kill anyone;
(xxxii)I was very sick;
(xxxiii)The victim was standing;
(xxxiv)I think I got in front of him, I'm not quite sure (there were 27 stab wounds to the head and chest) that could have happened;
(xxxv)It lasted maybe 10 seconds;
(xxxvi)I think I put my shoes in the rubbish bin - because if you got prints from my shoes on the ground where the victim was stabbed;
(xxxvii)I didn't run away cause of what I'd done. I ran away because I was sick and hearing the voices and thought that if I left they would stop;
(xxxviii)I tried to do a few things that the voices were telling me to do so they would leave me alone. I was sick. I was hearing voices through the TV all day long and night, through the radio. In the air, through the car's exhaust, I thought God was talking to me through the car's exhaust and big jet planes making noises and saying things;
(xxxix)I had the knife and went like that (stabbing action from behind);
(xl)And then I came around;
(xli)And caught the hand, knife and stabbing him and he was trying to stop;
(xlii)I took the knife out of my left hand and started using my right hand;
(xliii)I don't know if it was the devil and evil spirits to mislead you guys thinking that the person that killed was left-handed or what;
(xliv)I thought it was God telling me;
(xlv)And that it was right by God that I did it;
(xlvi)(I was concerned that I might have left my footprints) as I don't want to get in trouble here and get arrested for what I've done;
(xlvii)I thought it was always wrong by man, by us, and the law, court of law and everything. But then I thought it's not wrong by god. And I thought god's telling me to do these things. So who should I listen to? Do I listen to god or do I do what man says you shouldn't do?
(xlviii)And to this day I don't really know quite sure if it was god or not; and
(xlix)I don't know where these voices belong to. I just think maybe it's the devil.[13]
52.At 5.40 pm the accused was charged with the murder of Mr Nguyen.[14]
[13] Exhibit 1, statement of material facts, pages 30 ‑ 33.
[14] Exhibit 1, statement of material facts, page 33.
Elements of the offence of wilful murder
To find the accused guilty of wilful 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 Mr Nguyen;
(2)at the time the accused killed Mr Nguyen he intended to cause Mr Nguyen's death; and
(3)the killing was unlawful.
The accused admits all the elements of the offence of wilful murder. Putting to one side the insanity defence, the accused does not suggest that the killing was lawful.
As the issue of insanity has been raised, the element of an intention to kill falls to be determined only if the accused fails to satisfy me on the balance of probabilities of the insanity defence.[15] In any event, the accused admits that when he killed Mr Nguyen he intended to kill him.
[15] Ward v The Queen (2000) 118 A Crim R 78.
Issues for determination
The remaining issue is whether the accused has established on the balance of probabilities that he is not criminally responsible for his actions which killed Mr Nguyen on account of unsoundness of mind within the meaning of the Code s 27.[16]
[16] R v Porter [1933] HCA 1; (1933) 55 CLR 182, 184 (Dixon J). The parties agree that the law of insanity which applies to this case is the law as at the date the accused killed Mr Nguyen that being s 27 as it was at 23 November 1989.
This issue requires me to determine the following matters:
(1)Whether at the time the accused killed Mr Nguyen he was in a state of mental disease? The accused says that he was suffering from a mental disease namely paranoid schizophrenia.
(2)If the accused was in a state of mental disease, whether his mental disease deprived him of one of the capacities referred to in the Code s 27? The accused submits that he lacked the capacity to control his actions and/or the capacity to know that he ought not do the acts which killed Mr Nguyen.
The State submits that I should find that the accused suffered from a mental disease at the time that he killed the deceased and that he lacked both the capacity to control his actions and the capacity to know that he ought not do the acts which killed Mr Nguyen.
General legal principles
The accused is presumed to be innocent of the charge in the indictment. 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 of the charge. For the State to discharge that burden, it is required to prove beyond reasonable doubt that the accused is guilty of the charge. The State bears the onus of proving each element of the charge to that standard.
If it is necessary to draw inferences from the evidence, I may only draw an inference adverse to the accused in respect of issues on which the onus of proof is on the State if it is the only reasonable inference to draw from the evidence. If there is an alternative conclusion open within reason, I must not draw the inference necessary to prove the relevant element of the charge.
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 since 1989 at the latest the accused has suffered from a mental illness, I warn myself that it is dangerous to assess the accused's words and actions and to test the accused's capacity to know that he ought not act or his capacity to control his actions by the standards of people who do not suffer from a mental illness.
The two psychiatric witnesses are experts. The written report of another expert, Dr Hilton, was 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 or is based on an incorrect understanding of the law. Nevertheless, I am not entitled to disregard expert evidence capriciously. If there are no facts and no circumstances which, in my view, throw doubt on that evidence, I must accept it.
Neither party disputes the expertise of the opposing party's psychiatric expert witness or the experts' opinions which are the same on relevant issues. Although it is for me to decide whose opinion I accept in whole or in part, if the medical evidence is uncontradicted and there is no evidence of facts and circumstances which could lead to a different conclusion, then I may not reject the experts' opinions.[17]
[17] Hone v The State of Western Australia [2007] WASCA 283 and the cases cited therein.
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.
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.[18] The accused has the burden of proving that he was not of sound mind at the time he did the acts which he admits killed Mr Nguyen. The accused must prove that he was not of sound mind on the balance of probabilities.[19]
[18] The Code s 26.
[19] R v Porter.
Whether the accused proves that he was not of sound mind depends on the application of the first paragraph of the Code s 27 which as at 23 November 1989 stated:
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 disease or natural mental infirmity 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.
Mental disease
The phrase 'mental disease' was not defined in the Code.
The accused says that he had paranoid schizophrenia at the time he did the acts which killed Mr Nguyen.
What is a mental disease is a question of law for the judge. Whether or not the facts disclose a state of mental disease is a question of fact for the decider of facts.[20]
[20] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 60.
The definition of 'mental disease' reflects some of the comments made by King CJ in Radford[21] about the meaning of the expression 'disease of the mind' which is used in the common law of insanity. King CJ the then Chief Justice of the Supreme Court of Australia said that major mental illnesses or psychoses such as schizophrenia are clearly diseases of the mind.[22]
[21] Radford (1985) 20 A Crim R 388, 396.
[22] In R v Falconer the High Court generally approved of King CJ's comments even in the context of the Code provisions.
It is not in dispute that paranoid schizophrenia is a mental disease for the purpose of the then Code s 27.
Capacity to know that he ought not do the acts
The accused says that his mental disease deprived him of the capacity to know that he ought not do the acts which killed Mr Nguyen.
The phrase in the Code s 27 'so as to deprive him capacity to know that he ought not do the act' is generally considered to be the equivalent to the common law's M'Naghten rules limb that the accused was labouring under such a defect of reason 'that he did not know that he was doing what was wrong'.
The leading Western Australian authority on the meaning of this limb of the Code s 27 is Evans v The State of Western Australia.[23] The Court of Appeal applied the common law principles. McLure P said that there is no suggestion of any material distinction between the common law and s 27 on this point. Relevantly, her Honour said:[24]
The High Court in Stapleton elsewhere (367) identified the test as being whether at the time of the commission of the act the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act.
There is no suggestion of any material distinction between the common law and s 27 on this point. Thus the real issue for the jury in this case was whether the appellant had established on the balance of probabilities that at the time of the killing his mental impairment resulted in a complete incapacity to reason as to what is right or wrong according to ordinary standards. The term 'know' means 'understand', 'appreciate' or 'comprehend'. An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from understanding that he (or she) ought not do the act. Knowledge (short of understanding) that to kill is punishable by law does not prevent such a finding. Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct. Whether an act is right or wrong is determined by reference to an objective standard. The question is whether the appellant had a complete incapacity to reason as to what was, by that objective standard, right or wrong. In this case the appellant's subjective belief was relied upon by the experts to support the conclusion that he was in a psychotic state that prevented rational reasoning on right or wrong.
[23] Evans v The State of Western Australia [2010] WASCA 34. Evans was decided after amendments to the Code s 27 substituted the phrase 'mental impairment' for 'mental disease or natural mental infirmity'. It remains otherwise relevant to the construction of the Code s 27.
[24] Evans v The State of Western Australia [30] ‑ [31].
Wheeler JA (Owen JA agreeing) also discussed the common law principles and then said:
The authority most directly on point in this context is Stapleton v The Queen (1952) 86 CLR 358. In that case, having regard to the state of the evidence, it seems unlikely that there would have been any practical difference in result whether the jury had been directed in terms of a capacity to understand that an act was wrong according to ordinary standards, or to understand that it was contrary to law. It appears that that was the reason why the court would have 'hesitated' to order a new trial simply because the jury had been directed that the test of insanity was whether the accused knew that firing a shot at another person was against the law (at 375). However, the court made it clear that such a direction was erroneous (at 367 ‑ 368).
It is not easy to summarise the detailed discussion of authority in Stapleton in a way which is capable of being fashioned into an appropriate direction in every case of insanity. However, the principles extracted from that discussion appear to focus upon two issues. First, the ability to know that one 'ought not' to do an act or make an omission is a capacity to know that one 'ought not' to do it according to ordinary standards of right and wrong, rather than knowledge that the act is unlawful. As the High Court observed, from a practical point of view it often may not matter much, because in relation to serious offences the two ideas 'are not easily separable' (at 375). However, in cases where, as here, the distinction may arise, it should be made. The second principle is that the capacity which must be found to be lacking is not merely a capacity to appreciate, in some abstract sense, that others would view the act as wrong. Rather, it is a capacity of the particular accused either to discern the difference between moral good and evil, or to 'think rationally' of the reasons which would lead ordinary people to consider the act to be right or wrong.
In my view, the question in this case made it imperative that her Honour explain to the jury the two principles which I have described above. For completeness, I would add that it was not, in my view, necessary for her Honour to adopt the formula contended for by ground 2(b) of the grounds of appeal. Although a direction as to whether the accused was capable of reasoning 'with some moderate degree of calmness' or, as it was put in Porter, with 'a moderate degree of sense and composure' is sanctioned by authority, it may in some cases, in my view, run a risk of confusing the jury. That is because these offences generally take place in circumstances in which the accused is, plainly, not composed and not calm. The relevant issue is not whether the accused is, in fact, at the particular time, reasoning calmly and rationally. The question is whether the accused's mental condition is such that the accused is incapable of thinking in a rational way.[25]
[25] Evans v The State of Western Australia [59] ‑ [61].
It is also relevant to have regard to what the High Court said in Stapleton v The Queen[26] about the common law equivalent of the Code provision:
For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. See R v Davis (1881) 14 Cox CC 563, Stephen J, R v Kay (1904) 68 JP Jo 376, Stephen J. In R v Porter (1933) 55 CLR 1828 at pp 189, 190, this was expressed by Dixon J as follows:
'The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong (footnotes omitted).'
Capacity to control his actions
[26] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 367.
The meaning of the Code s 27 where it says that an accused is not criminally responsible for an act if at the time of doing the act the accused is in such a state of mental disease as to deprive him of capacity to control his actions was discussed in R v Falconer.[27] Mason CJ, Brennan and McHugh JJ said:
The incapacities to which s 27 refers include the incapacity to control actions whereas the M'Naghten Rules speak only of such a defect of reason 'as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.' The explanation for the inclusion of the incapacity to control actions in s 27 is that it mirrors the provisions of s 23, as Sir Samuel Griffith explained in his notes to the Draft Code, (1897), 14:
'An act to involve criminal responsibility must be voluntary, as distinguished from involuntary [s.23] - that is to say, it must be accompanied by volition. In order that an action may be accompanied by volition there must be in the first place perception, more or less accurate, of the facts, then a determination or choice of the action to be taken upon those facts, and finally the action. If the person in question is incapable from mental disorder of rightly perceiving the facts, he should be treated on the same footing as a man who in good faith misapprehends the facts [s.24]. If he is for the same cause incapable of exercising the power of determination or choice, he should be treated on the same footing as a man who does an act independently of the exercise of his will [s.23].'
Also in Falconer Deane and Dawson JJ said:[28]
Where an accused's acts are alleged to be involuntary by reason of mental disease or natural mental infirmity, no distinction can be drawn between the defence of automatism - the absence of will accompanying the relevant acts of the accused - and the defence of insanity under s 27 of the Code. This is necessarily so because s 27 relieves a person of criminal responsibility for an act done in 'such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions ...'.
… Where the voluntariness of an accused's acts is to be determined by reference to a condition which, if it existed at all, must on the evidence have amounted to a state of mental disease or natural mental infirmity, the question whether the accused's acts were voluntary will be subsumed in the question whether the accused did in fact suffer from a state of insanity envisaged by the section such that it deprived him of the capacity to understand what he was doing or the capacity to control his actions. S 27 also applies where a person is by reason of mental disease or natural mental infirmity deprived of the capacity to know that he ought not to have acted as he did. That would seem to raise a question distinct from that of voluntariness.
[27] R v Falconer (46 ‑ 47).
[28] R v Falconer (60).
Their Honours equated a deprivation of the capacity to control ones actions to involuntariness pursuant to the Code s 23. Toohey J seems also to have equated involuntary action with the second limb of s 27. His Honour said:[29]
Of course, insanity is not confined to involuntary action; insanity may be established even if a person has acted voluntarily, hence the need for lack of 'capacity to understand what he is doing' or lack of 'capacity to know that he ought not to do the act or make the omission' as components in s 27.
[29] R v Falconer (71) (Toohey J).
Similarly, Gaudron J in Falconer said:[30]
It is clear from the terms of s 27 of the Code - 'such a state of mental disease or natural mental infirmity as to deprive him ... of capacity to control his actions' that the defence of insanity or unsoundness of mind encompasses involuntariness when it proceeds from a mental disease or natural mental infirmity.
[30] R v Falconer (82) (Gaudron J).
I conclude that the High Court has given what some authors have described as a 'very narrow sphere of operation' to the second limb of s 27.[31] A person is deprived of the capacity to control his actions where his actions occur independently of the exercise of his will and where the person cannot exercise the power of choice to act.
[31] Colvin E, McKechnie J and O'Leary J, Criminal Law in Queensland and Western Australia - Cases and Commentary (8th ed, 2018) 443 [17.33].
This construction of the second limb of s 27 does not exclude those cases where a person is by their mental disease deprived of the capacity to control their actions in the sense that they are deprived of the capacity to refrain from doing an act or in the sense that the effect of their mental disease on their mind deprives them of the capacity to choose to act.
In the case of the effect of mental disease on a person's capacity to control their actions the focus will often be on the extent to which their delusions or hallucinations controlled their actions or in the words of Sir Samuel Griffith deprived them of the power of choice.
It will involve a consideration of the extent to which their mental disease compromised their ability to will their actions or to decide not to act. But it is necessary to bear in mind that the Code s 27 only applies if the accused is deprived of capacity to control actions, as opposed to something less than that such as having a significantly impaired capacity to resist an impulse or an emotion.
Facts
I accept the admitted facts relating to the accused's actions on 23 November 1989 and the following days. However to put those facts into context and to determine whether the accused was suffering a mental disease on 23 November 1989 (which deprived him of one or both of the two relevant capacities for the purpose of the Code s 27), it is necessary to have regard to the accused's background prior to November 1989 and after that date. It is also necessary to have regard to psychiatric and other expert opinions expressed about the accused over the course of his life.
Background and psychiatric condition prior to 23 November 1989
It is not in dispute that the accused was born in Perth and is the second eldest child in a family of seven children.[32]
[32] There is nothing exceptional noted about his family upbringing.
The accused has told others that he had some disturbances of perception and visual disturbances when he was in primary school. He did not flourish in high school and left school at about the age of 16. His offending history commences at the age of 14 when he was convicted of breaking and entering and stealing offences. He offended regularly, including committing serious violence offences up until he killed Mr Nguyen. The details of his convictions are contained in the following table:[33]
[33] For the sake of completeness, the table includes his convictions for offences committed after he killed Mr Nguyen.
Conviction date
Age (years)
Opportunity for reoffending
Charges
Penalty
1 18/07/1977 14.9 Break enter steal
Stealing x 2Probation 12 months
Probation 12 months
2
24/01/1978
15.4
6 months
Stealing
Probation 12 months
3
22/01/1980
17.4 years
2 years
Firearm possessed no license
Committed to control of Dept of Community Welfare until 18 years old
4
23/01/1980
17.4 years
Aggravated assault female
and no release for 6 months
5
19/02/1980
17.5 years
Aggravated assault police
Common assault
Stealing$300 fine
$100 fine
$30 fine
6
29/08/1980
18 years
6 months
Grievous bodily harm
3 years imprisonment
7
24/12/1982
20.3 years
1 year
Unlawful damage
$100 fine plus restitution
8 20/01/1983 20.4 years 1 month Disorderly conduct $10 fine
Parole susp
9
20/12/1983
21.3 years
7 months
Assault occasioning bodily harm
Common assault3 months imprisonment
10
22/12/1983
21.3 years
On curtilage without lawful excuse
1 month imprisonment (concurrent with above)
11
19/04/1984
21.6 years
2 months
False name
$60 fine
12
03/04/1987
24.6 years
3 years
On premises without lawful excuse
3 months imprisonment
13
18/04/1988
25.6 years
11 months
Unlawfully interfere with motor vehicle
Reckless driving
Unauthorised driving motor vehicle
Fail to stop$100 fine
3 months imprisonment, MDL disqualified 12 months
14
27/05/1988
25.7 years
Nil
Escape legal custody
Resist arrest
Stealing1 month imprisonment
1 month imprisonment (conc)
1 month imprisonment (conc)
15
25/07/1988
25.9 years
1 month
Disorderly conduct
Loitering$100 fine
$75 fine
16
20/03/1989[34]
26.5 years
1 month
Unlawful wounding x 2
11 months imprisonment total
17
21/03/1989
26.5 years
Escape legal custody
1 month imprisonment conc
18
19/04/1991
27.4 years
4 months
Attempted murder
Burglary x 3
Entering a dwelling with intentLife imprisonment
4 years imprisonment
4 years imprisonment
19
04/10/1991
28.6 years
Common assault
6 months imprisonment
[34] Offence date 28 August 1988 and release date 22 October 1989.
The facts of the conviction on 29 August 1980 for grievous bodily harm are that the accused and his friends became involved in a scuffle with another group of young people. The accused produced an unloaded rifle and struck a female from the other group on the knuckles with its barrel. The victim argued with the accused about his actions. The accused struck the victim's right eye with the butt of the rifle. The victim's eye was dislodged from the socket and completely destroyed.
As a consequence of the commission of this offence the accused spent six months in youth detention.[35] A psychiatrist assessed him as having a paucity of thought and reactions which were considered to be in keeping with a state of high anxiety and some depression. He was not considered to have a psychiatric illness but rather to be emotionally immature and easily led.
[35] Exhibit 7, page 204.
On 1 April 1987 Dr J Booth consultant psychiatrist completed a report for the director of the probation and parole service in which he said that he had seen the accused on 30 March 1987 when he was in custody after having been found guilty of being unlawfully premises. Dr Booth formed the opinion that the accused's background 'strongly suggest the prodromal phases of a schizophrenic disorder'.[36] Dr Booth said that the accused was not interested in treatment and neither could he be certain that it would have much effect.
[36] Exhibit 7, page 214.
The accused was seen by Dr G L Rollo consultant psychiatrist at Fremantle Prison on 6 May 1988. He had been transferred from Wooroloo Prison after behaviour 'which caused some concern and suggested mental instability'. Dr Rollo referred to Dr Booth's opinion and said that two years later the suspicion remained that the accused was in the prodromal phases of a schizophrenic disorder, 'but without convincing evidence'.[37]
[37] Exhibit 7, page 201.
The facts of the offences for which he was convicted on 20 March 1989 are that on 28 August 1988 the accused was at a nightclub in Fremantle. An altercation developed between himself and victim one. Victim one punched the accused several times to the face. As he walked away the accused stabbed victim one in the left thigh. At this time victim two had her right hand on victim one's left side. As the accused stabbed victim one the knife also penetrated the webbing between the fingers of victim two's hand before the knife went into victim one. During the investigation of the offences, the police seized the knife and brown sheath used by the accused in the attack.
On 31 August 1988 the accused participated in a record of interview with the police during which he admitted stabbing victim one.
On 3 October 1988 the accused was admitted to Graylands Hospital. On 5 October 1988 he escaped by climbing over a security wall. He was captured the following day, remanded in Fremantle Prison and charged with escaping legal custody.[38]
[38] Exhibit 1, statement of material facts, page 6.
In the Graylands Hospital Discharge Summary dated 20 October 1988 Dr C P J Neinaber a consultant psychiatrist and Dr C de Felice a registrar in psychiatry said that it was considered that the accused was suffering from a schizophrenia form psychosis and after further history from Dr Booth it seemed more likely that this man had schizophrenia. That history appears to have been obtained by Dr Booth from the accused's mother. In relation to the accused's particular hallucinations and thought disorders the doctors reported:
He experiences auditory hallucinations and had done so for at least 9 months, saying that he heard god, Christ, Michael, David all speaking to him telling him to read the paper and other such things, and more recently had started to command him to do more disturbing things such as hanging himself, cutting his foot off, or harming others. He believed that he was plagued by the voices as a punishment for the bad things that he has done, and that he is caught up in a spiritual battle. He had also experienced times when the people on TV would say his thoughts as he though them. He also had ideas of reference from the TV, and on one occasion experienced visual hallucinations when he saw the archangel Michael on the clouds in a chariot with bulldogs.[39]
[39] Exhibit 8, page 760.
The doctors stated that Dr Lister the psychiatric superintendent had discharged the accused from the hospital to Fremantle Prison after the accused absconded from Graylands Hospital and because of his charges, his past record, the risk to the public (if the accused was at large in the community) and the inability to have a prison escort to guard him whilst in Graylands.
The subsequent Fremantle Prison health service notes clearly indicate that the accused was regarded as having a diagnosis of paranoid schizophrenia. He was treated with anti‑psychotic medication for a while but when the doctors failed to note evidence of psychosis it was stopped.
The notes indicate that in early 1989 the accused was mainly concerned with a belief that his ear was blocked and there was something in his head. The notes indicated that on 27 February 1989 he was 'touchy + paranoid + refuses to discuss anything other than his ear'.[40]
[40] Exhibit 9.
The accused was interviewed for the preparation for a pre‑sentence report on 3 March 1989. The subsequent report by Mr Paul McEvoy, clinical psychologist, dated 16 March 1989 stated that the accused's general presentation was 'calm and reasonably cooperative' but that he showed 'signs of a relatively serious disturbance'. Mr McEvoy said that the accused 'made some comments suggestive of moderately bizarre ideas' but did not explain what these were.[41]
[41] Exhibit 8, pages 799 ‑ 800.
In early April 1989 the notes record that the accused's somatic complaints were increasing and on 10 April 1989 a note was made that this maybe a prodromal relapse of his psychosis. On 14 April 1989 there is a note of a relapse and that the accused was claiming that poison had been put into his coffee a year ago in Bunbury and that this was causing his present physical symptoms. He agreed to commence a dose of Pimozide an anti‑psychotic drug.
On 19 April 1989 a fellow prison inmate reported that the accused was having auditory hallucinations and held beliefs that he was God and that he must kill someone.[42]
[42] Exhibit 9.
The accused remained in Fremantle Prison after he was sentenced on 20 March 1989 to 11 months' imprisonment on each unlawful wounding offence to be served cumulatively on one another.
In June 1989 it was noted that the accused was still taking anti‑psychotic medication and there was no obvious evidence of psychosis. However in July and August there are notes indicating that he had ceased taking the anti‑psychotic medication. On 28 September 1989 Dr Rollo noted that he had multiple hypochondriacal concerns of near delusional quality. He had agreed to resume the anti‑psychotic medication.[43]
[43] Exhibit 9.
On 22 October 1989 the accused was released from prison and went to live with his brother in Wembley. The knife the accused used to commit the offences on 28 August 1988 together with its sheath were returned to him when he left prison. There is nothing to indicate whether he was given Pimozide to take with him into the community. I note that on 29 September 1989 he had complained that the medication made him feel faint and on 12 October 1989 he had declined to see a doctor.[44]
[44] Exhibit 9.
There is no record of any medical or psychiatric consultation between the accused leaving prison and 23 November 1989 being the date that the accused killed Mr Nguyen.
Events and psychiatric condition after 23 November 1989
As stated earlier, on 28 November 1989 the accused left Perth and he eventually travelled to Queensland. In early February 1990 he was living on the streets in Southport Queensland. On the evening of 13 February 1990 he stabbed six people one of whom died (the Queensland offences). The facts of these offences are not contained in the statement of material facts in this matter or the judge's sentencing remarks. However, the allegations are contained in various documents which are in evidence. What follows is a summary of the allegations which I give in order to provide some indication of the nature of the offences but I do not make any finding that these were the precise facts on which the accused was subsequently sentenced.
Late in the afternoon of 13 February 1990 the accused met victim one and they may have shared a large number of Valium tablets. Late that evening victim one was asleep on the grass in a park when he was awakened by the accused stabbing him. Victim two saw the incident and followed the accused into the park. He was confronted and stabbed by the accused. The accused then walked to another address where he struck victim three who apparently died from the assault. A fire was then set at that address. The accused was charged with the murder of victim three and arson but it does not seem that he was tried for, and he definitely was not convicted of, either the murder or arson.
The accused then went to another set of units. He broke into a unit and struck victim four who was sleeping on the head with a piece of wood. As he got up to defend himself he was stabbed by the accused. The accused then went to another set of units nearby and broke into one of them. Victim five was awakened by the accused. He struck her several times on the head with a piece of wood and then stabbed her several times. Victim six heard victim five cry out and entered the room. She was then struck by the accused and stabbed by him.[45] It is not mentioned that the accused knew any of the victims apart from victim one.
[45] Exhibit 7, pages 193 ‑ 194.
The accused was arrested soon afterwards. He assaulted a police officer involved in his arrest.
On 20 February 1990 Mr Jeffery Grantham forensic and clinical psychologist prepared a report for the Brisbane Correctional Centre in which he noted that the accused did not wish to discuss with him anything relating to the Queensland offences.
The accused told Mr Grantham that when he was arrested for vagrancy and held by the police for three days (this must be a reference to his arrest on 8 February 1990 during which he was interviewed by Western Australian detectives about Mr Nguyen's death) 'he was treated like rubbish'. On release he was 'agitated' and consulted a general practitioner to obtain a prescription for Valium. He said he did not drink any alcohol and declined to comment about whether he had been using other drugs.[46]
[46] Exhibit 8, page 801.
Mr Grantham said that during his discussion the accused had given 'little away'. He showed 'no sign of emotion that would correspond to a normal reaction to what he is alleged to have done. He did not report any major effects from having recently taken drugs nor show any sign of being psychotic'.[47]
[47] Exhibit 8, pages 801 ‑ 802.
Mr Grantham provided a further report on 28 February 1990 after he had interviewed the accused on a second occasion on 27 February 1990. Mr Grantham said that his assessment corresponded to the Western Australian diagnosis of schizophrenia. He did not report any positive signs of psychosis. The symptoms which he described were of the negative signs of schizophrenia.[48]
[48] Exhibit 8, page 803.
Unfortunately there are no other descriptions of the accused's mental state between 14 February 1990 and 12 March 1990 the date on which the accused was transferred to the John Oxley Memorial Hospital (JOMH).
On 12 March 1990 Dr Peter Fama a psychiatrist certified that he had that day examined the accused and formed the opinion that he was suffering from a mental illness of a nature or to a degree that warranted his detention at the JOMH.
The inpatient progress notes from JOMH state that the accused was on anti‑psychotic medication from the time of his admission. On admission he was 'somewhat suspicious and guarded but he had no overt psychotic features'.[49]
[49] Exhibit 7, page 8.
Dr Fama completed a report on 23 April 1990 in which he noted that he had seen the accused on seven occasions since his admission to the JOMH. Dr Fama said that overtly psychotic features had appeared gradually. On 30 March 1990 during an interview with a registrar he described hearing voices which told him he would go to hell. These voices squabbled amongst themselves because they feared that the accused was 'the creator'. On 3 April 1990 he warned staff to 'watch it' as he had 'friends in high places'. At interview on 20 April 1990 he interpreted the distant murmur of patients in the common room as a discussion of the trial and a condemnation of Jesus Christ.
Whilst at the JOMH the accused wrote prolifically. Some of these writings confirmed the psychotic process. He was occasionally involved in altercations with other patients and had been 'touchy' but not 'unduly truculent'.
The accused denied any part in the Queensland offences. He did not express any concern about the dead or injured. He had said that he had travelled to Queensland 'just to see what it was like'. Thus he had made no admissions to that date about his thoughts, feelings or motivations which resulted in the Queensland offences.
Dr Fama reported that:
(1)if the accused was fit to stand trial, a defence of insanity 'would be appropriate';
(2)the accused's mental condition was one of a persistent psychosis, namely paranoid schizophrenia;
(3)it was highly likely that at the time of the Queensland offences the accused was suffering from a disease of the mind, and that there is no other possible explanation for the Queensland offences;
(4)his paranoid schizophrenia would be sufficient to deprive him of the capacity to control his actions or to know that what he was doing was wrong;
(5)an excessive intake of Valium could aggravate but not cause the accused's protracted violent behaviour;
(6)the likely outcome of the accused's mental illness was chronic disability and continued high risk to the community; and
(7)further treatment might ameliorate the accused's symptoms but there was no realistic prospect of release from a security hospital.[50]
[50] Exhibit 7, pages 294 ‑ 299.
On 28 May 1990 Dr Donald A Grant consultant psychiatrist provided a report to the Queensland Mental Health Tribunal. Dr Grant had seen the accused on 22 May 1990 and had taken into account a large amount of written material relating to the accused including Dr Fama's report.
At interview the accused had declined to speak to Dr Grant about the Queensland offences. The accused said that:
(1)at the time of his arrest he believed he was well and that there was nothing wrong with him;
(2)he did not have any symptoms of illness, any problems with his thinking or any auditory hallucinations;
(3)for the first few days after his arrest he was not feeling 'too well' and he thought this may have been because the police put some kind of drug into his coffee; and
(4)he had not had any psychotic symptomatology since being arrested.
Dr Grant mainly relied on the written material in his possession to complete his report. On this basis he reached the same opinions as Dr Fama.[51] The accused declined to cooperate further in Dr Grant's examination.
[51] Exhibit 7, pages 312 ‑ 320.
On 3 August 1990 the accused was found fit for trial by the Queensland Mental Health Tribunal.[52]
[52] Exhibit 1 [78], exhibit 7, page 103.
In August 1990 the accused was seen at the JOMH on three occasions by a psychologist Ms C Spencer who prepared a psychology report on 24 August 1990. She noted that the accused was functioning within the normal range of intelligence. However he could demonstrate greater potential on tasks of visuomotor skills and constructive abilities than on verbal tasks. The testing revealed deficits in functioning that were just outside the normal range when encoding verbal material as well as deficits in acquired learning. His memory efficiency was found to be just marginally below average. Good attentional and concentrational skills were displayed throughout testing.
Ms Spencer said that the accused's clinical scale results corresponded to a profile type which describes antisocial traits in a narcissistic person who is depressed.[53]
[53] Exhibit 7, pages 153 ‑ 155.
On 28 August 1990 the accused was discharged from the JOMH and received at the Brisbane Correctional Centre to await trial.[54] The day before he told a staff member at the JOMH that he preferred not to take his medication and that he intended to refuse it when he returned to prison.
[54] Exhibit 1 [79].
As stated previously, in March 1991 the accused was found guilty after trial of the Queensland offences. It seems that he did not rely on an insanity defence or diminished responsibility, which was then part of the Queensland law. Dr Fama prepared a report for sentencing. Prior to doing this he saw the accused on 28 March 1991 at the Brisbane Correctional Centre. He concluded that the accused's condition had changed a little since he had left the JOMH on 28 August 1990 although he was less anxious. The accused told Dr Fama that he felt that the prison environment suited him better than the hospital. He was receiving anti‑psychotic medication. Dr Fama said that the accused remained without insight and denied any present ideas of persecution or doubts about his personal identity. He dismissed his former writings asserting that he was Lucifer as merely 'fanciful ideas of no significance'.
Dr Fama's final diagnosis was that the accused had residual paranoid schizophrenia 'a condition which may again in future become exacerbated into an acute, violent phase'.[55]
[55] Exhibit 7, pages 309 ‑ 311.
On 19 April 1991 the accused was sentenced to life imprisonment for the Queensland offences.
On 6 July 1994 the accused was transferred at his request from Queensland to Western Australia. He was received at Casuarina Prison the same day.
The accused remained in custody in Western Australia in various prisons and the Frankland Centre until he was released on parole on 14 April 2006. Some of the medical notes from the prisons at which he was held are in evidence.
Dr Patchett summarised the records as showing that the accused's paranoid schizophrenia was well managed for much of the time on long‑acting injectable anti‑psychotic medication. He remained stable throughout most of the 11 years and presented with mostly negative symptoms of schizophrenia (amotivation, affective blunting and social withdrawal) and no positive symptoms (psychosis).
There was a period of five months towards the end of 1997 and the beginning of 1998 when the accused's anti‑psychotic medication was not administered. Dr Patchett says it is not clear why this happened but it appears to have been overlooked. In early 1998 he began to relapse and exhibit psychotic symptoms. He was reviewed by a psychiatric registrar on 30 January 1998 and described hallucinations and expressed delusional beliefs. He described a visual hallucination of seeing a face in the sky with a lightning bolt through one eye, of hearing God's voice and hearing the radio and TV talking about him. He described hearing 'the Holy Spirit' talking through other prisoners saying things like 'I rule, fool'.
The anti‑psychotic medication was reinstituted and the accused was followed up by the psychiatric registrar. He then described other psychotic phenomena such as the voice of God talking to him through music and telling him that he was a reincarnation of Leonardo Da Vinci, Daniel and Adam. He also spoke of how he knew Sylvester Stallone had been reincarnated, and that Burt Reynolds had been Shakespeare and King Solomon. He also believed that he was a reincarnation of John the Baptist because the voices called him Johnnie. There was also concern that he was taking an inappropriate interest in female staff and was described to be watching and even recorded to be 'stalking' a female staff member.
The accused settled over the ensuing four months in prison with the reinstatement of the anti‑psychotic medication and without the need for him to be transferred to the Frankland Centre.[56]
[56] Exhibit 8, pages 974 ‑ 980, exhibit 11, page 2.
The accused was interviewed in 1999 by Mr Roger Summers, clinical psychologist - registrar, for the preparation of a psychological report dated 22 October 1999.[57] The accused described hallucinations and illusions in the past tense, indicating a dearth of these experiences recently. The accused claimed he was not sure whether the voices he heard in the past directing him to kill another person were from God or from Satan. His hallucinations included seeing God in the sky coming down to him. He adamantly insisted that someone had spiked his coffee in prison and this event had initiated his illness.
[57] Exhibit 8, pages 849 ‑ 854.
Mr Summers assessed the accused's general intellectual functioning and found that his results were compatible, albeit slightly higher overall than previous testing.[58] Mr Summers considered that the accused's long‑term and short‑term memory were intact.
[58] Exhibit 8, page 851.
On 29 April 2002 Dr Zdenek Srna, psychiatrist, provided a report to the Western Australian Parole Board. He noted that he had interviewed the accused on one occasion on 17 April 2002. The accused told him that in his early 20s he met a female whom he lived with for two years. Towards the end of the relationship he began to hear a female voice in his right ear telling him to break up with his girlfriend. The voice kept telling him to drink petrol, to kill himself and to kill other people. He began to be concerned about his safety and for that reason he began to carry a knife with him. It was after this that the offences of 28 August 1998 occurred. After his release he moved to Queensland to get away from the voices. While in Queensland he swallowed some Valium tablets and he was woken up by voices commanding him to kill his companion. He stabbed him once in the heart and then he ran away and met another person whom he stabbed several times because he was commanded to by the voices.
Dr Srna noted that the accused had 'pronounced schizophrenic phenomena such as poverty of thought, slowing of thinking and psycho‑motor slowing'. However, Dr Srna could not elicit any significant formal thought disorder or any abnormality of content or thought or any other florid psychotic symptoms.
The accused told Dr Srna that he had been happy on his anti‑psychotic medication which he had been receiving for many years. He told him that since he had begun the current medication regime he had not been having any problems with voices or feeling anxious as he used to. He said that for eight years he has heard no voices.[59]
[59] Exhibit 1 [88], exhibit 8, pages 762 ‑ 768.
On 28 August 2002 Ms Mary‑Anne Martin, forensic psychologist, provided an independent clinical review/assessment to determine the accused's suitability for a pre‑release programme prior to his first statutory review, being 14 February 2003. Ms Martin noted that she had interviewed the accused on two occasions, being 12 and 18 December 2001.
The accused told Ms Martin that after leaving prison in October 1989 he went to stay with his brother. He stayed for about a week but left when he started hearing voices commanding him to kill his brother. He then travelled to Queensland. He acknowledged that police from Western Australia interviewed him in Queensland regarding a wilful murder enquiry. He said that the knife that was used in this murder was one that he threw in a dumpster when he heard the voices telling him to kill his brother.
The accused told Ms Martin that it was whilst he was in Bunbury Prison in 1981 that he started to experience auditory and visual hallucinations. This happened after another prisoner had put LSD into his coffee. The accused also reported a number of somatic complaints to Ms Martin which are confirmed by the prison medical reports.[60]
[60] Exhibit 1 [89], exhibit 8, pages 807 ‑ 825.
In relation to a period when he was living with his girlfriend, the accused said that he heard voices telling him to 'repent'. He started thinking that she was being unfaithful to him. He read the Bible eight times and saw a particular movie seven times during this period. At one point he did not sleep for seven days. At the end of the four‑year period he started to hear voices telling him to 'ice them' (meaning to kill people) and to 'eat shit'. He said he bought a knife and started to carry it around believing that that would make the voices stop. This was just prior to the offences on 28 August 1988.
The accused gave Ms Martin an account of the Queensland offences. This is one of the earliest and fullest accounts that he had given of those offences. He described taking 30 Valium tablets and drinking beer prior to the offending. He said:
[W]e fell asleep. When I woke up it was drizzling. I heard voices saying to 'Ice him'. I stabbed him in the chest with a pocket knife, and ran off. I stabbed the other bloke 3 times. I broke the branch off a tree, and ran into a flat. I could hear the voices on and off. I hit a man over the head, and he ran into the kitchen. I ran into another house. There was one woman in the bedroom. I hit her over the head 3 ‑ 4 times and stabbed her girlfriend in the breast. I was blacking out of it; I was just looking for somewhere to sleep. I tried to be merciful. I didn't want to do it deep down. It was like a magnet drawing me, I had no control.[61]
[61] Exhibit 8, page 810.
Ms Martin said that she had no reason to doubt the accused's veracity. However, I note that the account given by the accused does not accord entirely with other known facts. For example, he does not mention all of the victims or all of his assaults of them.
On 4 August 2003 Dr Patchett provided a report to the Parole Board of Western Australia which was a psychiatric assessment with particular regard to the accused's suitability for a pre‑release programme including its stages and components. For the purpose of preparing the report Dr Patchett interviewed the accused at Casuarina Prison on 11 June 2003.
The accused explained to Dr Patchett that he had experienced auditory hallucinations for four years prior to the Queensland offences. He said he heard God's voice telling him that he was Leonardo Da Vinci and Daniel the Prophet and then how the voices changed into those of the devil which persecuted him and ridiculed him. At the time of the Queensland offences he was hearing voices shouting at him to kill people, saying such things as 'people are no good' and 'you are a coward'. He said that these voices induced him to offend. He said that he continued to have a strong Christian faith and rationalised his whole psychotic experience in religious terms with the statement 'I am not sure why he [meaning God] has put me through all of this'.
The accused explained to Dr Patchett that he knew that he had an illness called schizophrenia but that such an affliction was a sign that he had lived a previous life as somebody famous.
Dr Patchett reported that the accused was cooperative in the interview setting but lacked spontaneity and presented with a clear affective deficit characterised by reduced range and amplitude of emotional response. There was evidence for mild thought disorder with tangentiality and some loosening of associations. He continued to hold grandiose beliefs. There was no objective evidence for perceptual disturbances and he was grossly cognitively intact, although he displayed vocabulary and quite unsophisticated syntax, probably reflective of his intellectual capabilities.[62]
[62] Exhibit 1 [93], exhibit 8, pages 795 ‑ 798.
On 31 January 2005 the accused was transferred to the Frankland Centre for pre‑parole assessment and rehabilitation. He remained an in‑patient until 30 March 2005 when he was returned to prison.[63]
[63] Exhibit 1 [96].
Dr Bryan Tanney, consultant psychiatrist, prepared a discharge summary report dated 29 April 2005. Dr Tanney noted that the accused continued to report preoccupation with religious beliefs but there was no evidence that these were to a delusional extent.[64] It is notable that when he was interviewed by psychiatrists and psychologists when he was in prison in Western Australia he did not make any admissions to killing Mr Nguyen despite knowing he had done so.
[64] Exhibit 1 [97], exhibit 8, page 867.
On 1 May 2005 the accused was transferred from Hakea to Acacia Prison and then to the Frankland Centre. He was released on parole on 14 April 2006.
Dr Patchett's evidence
Dr Patchett is a highly qualified and experienced consultant forensic psychiatrist. His qualifications and experience are not in dispute.
As mentioned earlier, Dr Patchett had seen the accused in 2003. In 2017 he was requested by the State to prepare a psychiatric report in relation to the accused's likely mental state at the time he stabbed Mr Nguyen. For the purpose of preparing the report he interviewed the accused on 20 October 2017.
Prior to completing his report, Dr Patchett also reviewed a large amount of written material, some of which I have referred to. The parties consent to me taking into account Dr Patchett's opinion even though some of the material which he took into account is not in evidence.
During the interview on 20 October 2017 the accused displayed evidence of mild formal thought disorder with some tangential responses and 'elusive thinking' whereby his talk lacked the necessary substance and clarity to adequately convey meaning. The content of his speech had a consistent religious overtone and he often illustrated his ideas with reference to the Bible and his Christian faith. He asked Dr Patchett if he was a Christian.
The accused described previously held abnormal beliefs (delusions) and previously experienced abnormal perceptions (hallucinations) but he denied hearing voices currently. There was no evidence during the interview of him responding to unseen stimuli. Cognitively he was fully oriented in time, place and person. His attention and concentration was intact and his memory was patchy, particularly for events when he was floridly psychotic. He displayed limited insight into the presence of mental illness. He expressed feelings of regret rather than remorse in relation to the death of Mr Nguyen.
Dr Patchett diagnosed the accused with paranoid schizophrenia and mental and behavioural disorders due to the harmful use of alcohol and cannabis. He said that these mental and behavioural disorders were in the context of underachievement at school, underemployment, periods of homelessness, previous imprisonment in relation to serious offending and alcohol and cannabis misuse.
Dr Patchett concluded that there was both subjective and objective evidence that the accused probably developed psychosis at a young age, from at least his mid‑teens. His psychosis had been characterised by prominent auditory and visual hallucinations and grandiose, religiose and persecutory delusions. His auditory hallucinations had been extremely intrusive and persistent when he had not been receiving treatment and had the characteristic of being commanding in nature. He said that it is apparent that the accused has acted on commands in the past and that it seemed likely he had done so in relation to past offending and the killing of Mr Nguyen.
Dr Patchett noted that despite assertive psychiatric follow up and stable anti‑psychotic treatment for the past 27 years, the accused's illness had not fully responded to treatment. He displayed characteristic deficits in social and motivational function and had residual ambivalence about the nature of his psychosis. Dr Patchett believed that the accused's current anti‑psychotic medication Clozapine had resulted in gradual improvements in functioning, but he retained a preoccupation with religious beliefs that were central to his psychosis.
The accused still questioned what the true nature of reality is and was, and whether his psychotic beliefs and experiences were indicative of a special relationship with God or the devil. That is, the accused does not have a full appreciation of the unreality of his psychotic phenomena.
Dr Patchett concluded that the accused was seriously mentally ill when he committed the Queensland offences just three months after he killed Mr Nguyen. Dr Patchett believed it was highly likely that the accused was seriously unwell and psychotic at the time he killed Mr Nguyen on 23 November 1989. He said that he had previously been diagnosed with paranoid schizophrenia and was almost certainly experiencing psychotic symptoms from early 1988 onwards. Those symptoms consisted of visual and auditory hallucinations and grandiose, religiose and persecutory delusions.
Dr Patchett said that it is impossible to draw definitive conclusions about an individual's mental state 28 years ago. However, Dr Patchett said that besides the accused's memories of the events there was also contemporaneous and detailed information derived from contact with specialist forensic psychiatric services in Western Australia and Queensland which confirms that he was floridly psychotic and had been for some time. Dr Patchett said that it is apparent from the many accounts that the accused's psychosis has been persistent and the phenomena he experiences have remained remarkably stable throughout the years. He has consistently and repeatedly described auditory hallucinations of many voices, but one main one he thinks is God but could be the devil. Backing up that central voice he has described many times and consistently a chorus of voices who have included biblical and historical characters such as Lucifer, Daniel, Jesus, Eve, Adam, Carmen (who is Eve), Dana (Lady Wisdom) and Michael the Archangel. These voices have reinforced a chronic delusional belief that he is a reincarnation of Leonardo Da Vinci and is related through reincarnation to Adam, Joseph and Daniel, and also to the actor Tom Cruise.
In relation to whether the accused's state of mental disease deprived him of the capacities described in the Code s 27, Dr Patchett is of the opinion that the accused understood what he was doing when he stabbed Mr Nguyen.
Dr Patchett believed that it was likely that the accused was deprived of the capacity to control his actions at the time he stabbed Mr Nguyen. That is because the accused believed that the auditory hallucinations he was experiencing were in fact the voice of God (or the devil) and others who commanded him to do things including to stab people. He reported that the voices told him to attack the deceased and to stab him with his left hand not his dominant right hand, which he did.
Dr Patchett was of the view that it is probable that the accused was deprived of the capacity to know that he ought not do the act of stabbing the deceased with a knife which resulted in Mr Nguyen's death. That is because the accused told Dr Patchett and had told others that he had thought at times that he was carrying out God's work. He told Dr Patchett that 'God gives life and God takes it away. Maybe he was making me take the lives for him'.[65]
[65] Exhibit 10.
Dr Patchett's oral evidence
In his oral evidence Dr Patchett said that the accused's accounts of his psychotic delusions and hallucinations were 'remarkably stable' over the last 27 years.[66] He concluded that the accused was recounting genuine memories.[67]
[66] ts 68.
[67] ts 70.
Dr Patchett said that he believed that the accused had been psychotic for a couple of years prior to November 1989.[68]
[68] ts 71.
Dr Patchett said, in effect, that his opinion that the accused lacked the capacity to control his actions was heavily influenced by the accused's account that he changed the knife from the right hand to the left hand, and then he changed it from the left hand to the right hand after stabbing the deceased in the head. Dr Patchett said that while he did not have evidence that the accused heard a direct voice at the time telling him to change hands the accused had said that God said to use his left hand. That made Dr Patchett believe that it was possible or likely that the accused was unable to control his actions in that even if he had a policeman at his elbow, in the classic sense, he probably still would have used his left hand.[69]
[69] ts 71 ‑ 72.
In cross‑examination Dr Patchett said that psychiatrists find that the ability to control actions is most likely impaired in a person suffering from schizophrenia by command hallucinations telling the patient that they have to do something. In the accused's case he was of the opinion that the accused would have used his dominant right hand if he had not been commanded by a command hallucination to use his left hand.[70]
[70] ts 79.
However, Dr Patchett said that it was 'particularly' in relation to the third limb of s 27 that he was satisfied that the accused was deprived of the capacity to know that he ought not do the acts which killed Mr Nguyen. Dr Patchett said that the accused summarised the position very well when he said that his actions were wrong for man, but it was right to do for God.[71] I gained the impression from Dr Patchett's evidence that his opinion about the lack of this capacity was stronger than it was for the lack of the capacity to control actions.
[71] ts 72.
In cross‑examination Dr Patchett spoke of the tremendous difficulty in treating paranoid schizophrenia and that there is a view that people are never cured of the disease. Rather it waxes and wanes, assisted by medication but even patients on medication can have 'breakout periods of psychosis'.[72]
[72] ts 77.
He was also asked about the Fremantle Prison health services' notes from the 1980s[73] and he said that there was some disagreement between treating psychiatrists in the late 1980s about whether the accused had schizophrenia. Some of them gave him time off his anti‑psychotic medication. He thought the evidence was that when the accused was off his medication the voices came back. He said that the other 'worrisome thing' was that when the accused was in prison he was on oral anti‑psychotic medication being Pimozide 2 mg which the accused probably did not take after he was released in October 1989. The accused was also not released on a parole order or any form of community supervision.[74] Dr Pascu confirmed that her enquiries had not revealed any form of follow up for the accused in the community in late 1989 or early 1990.[75]
[73] Exhibit 9.
[74] ts 78.
[75] ts 86 ‑ 87.
Evidence of Dr Pascu
Dr Pascu is also a highly qualified and experienced consultant forensic psychiatrist. Her qualifications and experience are not in dispute.
Dr Pascu was requested by the accused's lawyers to prepare a report concerning the accused's mental illness, his likely mental state at the time he stabbed Mr Nguyen, his fitness to stand trial and his treatment needs and prognosis. For the purpose of these reasons, I need only consider Dr Pascu's opinion about his mental illness and his likely mental state at the time he stabbed Mr Nguyen. For the purpose of preparing the report, Dr Pascu interviewed the accused on 7 March 2017 at Casuarina Prison for approximately two and a half hours. She also reviewed a large amount of written material. Again, even though some of that material is not in evidence, there is no objection to me taking into account Dr Pascu's opinion.
The accused told Dr Pascu that he accepted the events as described in the statement of material facts.[76] He told her that what had happened was 'awful'. He said that he was not well when it happened and had been unwell since he was in about grade 5. He said at that time he 'looked in a trough and saw ice and my mind went clear; I just had this thought that I will put people on ice, meaning they will end up dead when I become an adult; I didn't know what that was but I felt like I heard a voice in the sky and I kept looking at the sun and the eclipse and thought I was going to get blind'.
[76] I assume this is a reference to exhibit 1.
The accused told Dr Pascu that about 18 months before he killed Mr Nguyen he started to hear voices telling him to cut off his hands, cut off his penis, to eat shit, drink petrol and kill people. He said that the voices were coming from everywhere including the TV, the radio, from the car exhaust and the plane exhaust. The accused said that after he got out of prison in October 1989 he lived on the streets. He did not take any treatment and did not get any medical or psychiatric follow up. He said that he had some medications but the doctors said he was just anxious even though he told them about the voices. He said that after he got out of prison the voices were even telling him to kill his brother. He stayed away from everybody.
On the evening that he attacked Mr Nguyen he was walking in the city. He said that he 'saw Eve and Michael the Archangel having it on together; I thought I was Adam and seeing Eve and Michael together I got very angry; the voices were telling me kill anybody, they didn't tell me to kill that poor man, just anybody I guess, whoever was there'.
The accused then described to Dr Pascu how he killed Mr Nguyen. It was a similar description to that which he described to the police in the 2016 EROI. He admitted to travelling to Queensland a few days after the killing and to committing the Queensland offences. He described ongoing voices commanding him to harm others and also to hurt himself.
The accused told Dr Pascu that he felt increasingly paranoid after being remanded in custody on 3 November 2016. He said that the voices had come back and he tried to keep them away by reading the Bible and attending church. He told her that they were derogatory in nature, but not currently commanding him to harm himself or others. He denied getting messages from the TV and radio.
Dr Pascu's mental state examination noted that the accused had a mild thought disorder with over‑inclusiveness and tangentiality. He described ongoing auditory hallucinations. There was also evidence of persecutory and grandiose delusions with religious content. He denied referential delusions, but described these in the past.
His mood was anxious and he was very worried that 'they will get me'. His affect (the external expression of his emotions) was restricted, blunted, anxious, with reduced range and at times increased intensity, needing a lot of reassurance. He had insight into his mental illness, his significant anxiety related to the court process and the need for and benefits of treatment. His judgment was fair. Cognitively he appeared to be grossly intact.
Dr Pascu diagnosed the accused with paranoid schizophrenia of a chronic nature even on treatment, with residual positive and negative symptoms. He had a history of substance abuse with current declared abstinence. He had a socially avoidant personality structure with antisocial traits. He had functional and occupational decline. He had no meaningful supports apart from family and significant anxiety relating to the court processes.
In Dr Pascu's opinion the accused's chronic paranoid schizophrenia had been present from his late teens, with a confirmed diagnosis in 1988. His illness was characterised by acute tormenting auditory hallucinations, derogatory in nature, and a command to harm others, with a religious content, alongside significant persecutory delusions which further contributed to him carrying a knife 'for protection'.
It is possible that in the past he used illicit substances to self‑medicate his evolving psychotic illness. The addition of illicit drug use may have further contributed to the early development of his psychotic illness. However, there was no clear precipitant to the accused's chronic mental illness.
Dr Pascu said that the accused was not treated consistently whilst in prison in Western Australia in 1988 and 1989. Further, following his release from prison in October 1989 the knife he had used during his prior offending was returned to him but he was not offered adequate psychiatric treatment and follow up. His mental health continued to deteriorate without any treatment following his release from prison in October 1989. He thereafter killed Mr Nguyen and travelled to Queensland where he committed the Queensland offences.
After the accused started to receive regular psychiatric treatment and follow up in 1990 his mental state improved. His mental state during the 2016 EROI showed evidence of him being initially more guarded and anxious and at times distracted. However, there was no evidence of him being actively psychotic and he had reasonable insight into his illness.
Dr Pascu was of the opinion that at the time the accused killed Mr Nguyen he was not deprived of the capacity to know what he was doing. He was deprived of the capacity to know that he ought not do the act due to his significantly impaired mental state and impaired judgment. He was deprived of the capacity to control his actions due to his serious mental illness which was untreated at the time.[77]
[77] Exhibit 12.
Dr Pascu's oral evidence
Dr Pascu said that the Fremantle Prison health services records confirmed her opinion that from 1987 and certainly from his admission to prison in 1988 the accused was psychotic.[78] He had psychotic symptoms such as auditory hallucinations and delusions. She said that in a prodrome you do not see the signs that clearly. The prodrome is more about 'a bit' of anxiety, depression and some behavioural problems.[79]
[78] ts 85.
[79] ts 89.
Dr Pascu expanded on the basis of her opinion that the accused was deprived of the capacity to know that he ought not to do the acts which killed Mr Nguyen. She said that due to his significantly impaired mental state and impaired judgment he was labouring under defects of judgment and reasoning. He knew that it was wrong for a man to do something like he did to Mr Nguyen because it was against the law, but not wrong for God. His reality at the time was that he was somehow connected to God and almost identified with God.[80]
[80] ts 90.
Dr Pascu also expanded on the basis of her opinion that the accused was deprived of the capacity to control his actions which killed Mr Nguyen. She said that she agreed with Dr Patchett's view that the command auditory hallucinations together with paranoid delusions were probably the strongest factors leading to that conclusion. In the accused's case having the command auditory hallucinations from God to do what he did and to change hands when he did so caused her to form the opinion that he acted clearly in response to command auditory hallucinations. She described the command auditory hallucinations and persecutory delusions as 'control override symptoms' showing that the accused was at a high risk of doing whatever act he was commanded to do.
Dr Pascu said that the accused's acts in throwing away his knife, shoes and clothing did not change her opinion about his capacity to control his actions because a person with a psychotic illness can still do normal things that everybody else does.[81]
[81] ts 90 ‑ 91.
Was the accused in a state of mental disease at the time he killed Mr Nguyen?
I find that the accused was suffering from paranoid schizophrenia, including the positive symptoms (hallucinations and delusions which are characteristic of a psychosis) of this illness when he killed Mr Nguyen.
Paranoid schizophrenia is a mental illness which falls within the meaning of 'a state of mental disease' for the purpose of the Code s 27 as it was on 23 November 1989.
This conclusion is based on the uncontroverted evidence of Dr Patchett and Dr Pascu which is supported by the opinions of other psychiatrists between 1988 and 1991, and the other findings of fact which I have made.
Did the accused's mental disease deprive him of the capacity to understand what he was doing when he killed Mr Nguyen?
The accused does not assert that he was deprived of the capacity to understand what he was doing when he killed Mr Nguyen. Both psychiatrists are of the opinion that he knew what he was doing. I am of the opinion that the accused knew what he was doing when he killed Mr Nguyen. It is clear that he knew he was holding the knife and he deliberately stabbed Mr Nguyen with it with the intention that he would die.
Did the accused's mental disease deprive him of the capacity to control his actions which killed Mr Nguyen?
Both Dr Patchett and Dr Pascu are of the opinion that the accused was deprived by his mental disease of the capacity to control his actions. This is on the basis that the accused has said that he was commanded by what he believed was God's voice to kill somebody. The psychiatrists testified that a command hallucination is a characteristic of paranoid schizophrenia. Their opinions were also influenced by the accused's statements that he stabbed Mr Nguyen with his non‑dominant hand because the voice he heard told him to do so.
As I find that the third limb of the Code s 27 has been proven it is unnecessary for me to decide whether the accused also was deprived of the capacity to control his actions which killed Mr Nguyen. However, as it was one of the limbs relied on by the accused and Dr Patchett and Dr Pascu agree that he was deprived of this capacity, I will make a decision in respect of it.
The factors which would support such a finding are those principally relied on by the psychiatrists which I have described above. Additionally, there are the following matters:
(1)there is no rational reason or motivation for the fatal attack on Mr Nguyen;
(2)three months later the accused committed the Queensland offences which were also lacking any kind of rational basis;
(3)the accused told the police in the 2016 EROI that he 'lost control' and stabbed Mr Nguyen in a 'frenzy'; and
(4)the accused was suffering from paranoid schizophrenia which, by itself, would make it more likely that he, as opposed to someone without the illness, would be deprived of the capacity to control his actions.
However, there are also the following factors which suggest that the accused had the capacity to control his actions:
(1)he consciously chose Mr Nguyen to attack;
(2)unlike in the Queensland offences, he did not continue to seek out and attack others;
(3)he was able to resist the voice he heard the following day which told him to kill his brother;
(4)immediately after the fatal attack on Mr Nguyen he consciously washed his hands and disposed of the knife; and
(5)he at all times maintained the ability to direct his actions such as by choosing where he would stab Mr Nguyen.
Thus, there are some facts and circumstances which cause me to hesitate before accepting the psychiatric opinion on this issue.
However, after giving what the authorities say is the proper weight to be given to uncontradicted psychiatric evidence, I am satisfied on the balance of probabilities that the hallucinations and delusions which the accused was experiencing and in particular the commands which he believed he heard from God telling him to kill someone and to use his non‑dominant hand to do it mean that he was deprived of the capacity to control his actions in the sense that he could not exercise his power of choice to act. This may be thought to be a broader concept than involuntariness. But as Sir Samuel Griffith said, if because of mental disease a man is incapable of exercising the power of determination or choice, he should be treated on the same footing as a man who does an act involuntarily; that is, he should be considered as being deprived of the capacity to control his actions.
It is my opinion that the accused has proven on the balance of probabilities that he was, because of his mental disease, incapable of exercising the power of determination or choice to act or not to act and thus deprived of the capacity to control his actions when he killed Mr Nguyen.
Did the accused's mental disease deprive him of the capacity to know that he ought not do the acts which killed Mr Nguyen?
I am satisfied on the balance of probabilities that at the time the accused fatally stabbed Mr Nguyen his mental disease deprived him of the capacity to reason as to what was right or wrong according to ordinary standards. That is, to know that he ought not do the acts which killed Mr Nguyen.
From what the accused said in the 2016 EROI he knew that to kill was punishable by law and against the laws of man. However, his positive symptoms of paranoid schizophrenia, being hallucinations and delusions, meant that he had a complete incapacity to reason that killing Mr Nguyen was wrong. That is because he believed that it was right by God and he was acting under a command to kill from a voice which he believed at the time was God's voice.
It is only subsequent to the death of Mr Nguyen that the accused has queried whether the command to kill came from God or the devil. That is as a result of conversations he has had with others to the effect that God would not command someone to kill in these circumstances.
This is a case where the distinction spoken about in Stapleton between what the accused understood was wrong at law and what he understood to be morally good and evil is highly relevant. The accused understood that it was against man's law to kill but he believed that it was morally good for him to kill because of the command he was receiving from God to kill. He was unable to think rationally of the reasons which would lead ordinary people to consider his actions to be wrong. His mental disease so governed his faculties at the time of the commission of the fatal acts that the accused was incapable of reasoning with 'some moderate degree of calmness as to the wrongness of the act'.
These findings are supported by the opinions of Dr Patchett and Dr Pascu.
Conclusion and verdict
Consequently the accused is not criminally responsible for his actions which killed Mr Nguyen. I find the accused not guilty of the murder of Van Phan Nguyen on account of unsoundness of mind and enter a verdict of acquittal on account of unsoundness of mind.[82] As required by law I make a custody order pursuant to the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 21.[83]
[82] Criminal Procedure Act s 147(2).
[83] Section 21 applies to my verdict as a consequence of the Criminal Code Act Compilation Act 1913 (WA) Appendix B s 4(2).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE JENKINS31 OCTOBER 2018
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