The State of Western Australia v McCullock [No 2]

[2024] WASC 400

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MCCULLOCK [No 2] [2024] WASC 400

CORAM:   QUINLAN CJ

HEARD:   24 OCTOBER 2024

DELIVERED          :   31 OCTOBER 2024

FILE NO:   INS 49 of 2023

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

SARA JADE MCCULLOCK

Accused

Catchwords:

Criminal law – Charge of murder – Insanity – Whether issue of insanity must be considered and determined before issue of intention – Previous decision of the court – Whether previous decision overruled by subsequent legislation

Legislation:

Criminal Code (WA), s 26, s 27, s 279
Criminal Law (Mental Impairment) Act 2023 (WA), s 41, s 50
Criminal Procedure Act 2004 (WA), s 98(2)(a), s 113, s 146, s 147, s 149

Result:

Application dismissed

Category: A

Representation:

Counsel:

Prosecution	:	B F Stanwix & A J Finn
Accused	:	S Auburn

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	S Auburn

Cases referred to in decision:

BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; (2007) 162 FCR 234

Cooley v Western Australia [2005] WASCA 160; (2005) 155 A Crim R 528

Garrett v The Queen [1999] WASCA 169

Hawkins v The Queen (1994) 179 CLR 500

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v Lavell [2002] WASC 200

Smith v The Queen [2015] HCA 27; (2015) 255 CLR 161

Stanton v The Queen [2001] WASCA 189; (2001) 24 WAR 233

Stanton v The Queen [2003] HCA 29; (2003) 77 ALJR 1151

The State of Western Australia v Brown [2013] WASC 349

The State of Western Australia v Chaytor [2019] WASC 228

The State of Western Australia v Chiha [2015] WASC 138

The State of Western Australia v Chokolich [2024] WASC 346

The State of Western Australia v Daly [2019] WASC 386

The State of Western Australia v Davidson [2022] WASC 70

The State of Western Australia v Dent [No 2] [2023] WASC 261

The State of Western Australia v Djurasovic [2021] WASC 466

The State of Western Australia v Evans [No 2] [2012] WASC 366

The State of Western Australia v Haast [2020] WASC 161

The State of Western Australia v Herbert [2017] WASC 101

The State of Western Australia v Hone [2007] WASC 64

The State of Western Australia v Ihalahewa [2020] WASC 386

The State of Western Australia v Iley [2006] WASC 107

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

The State of Western Australia v Knock [2020] WASC 246

The State of Western Australia v Lang [No 2] [2016] WASC 206

The State of Western Australia v Marotta [2018] WASC 329

The State of Western Australia v McCullock [2024] WASC 143

The State of Western Australia v McDonald [No 2] [2010] WASC 355

The State of Western Australia v Pal [No 2] [2023] WASC 449

The State of Western Australia v Pearson [2022] WASC 191

The State of Western Australia v Petersen-Crofts [2021] WASC 47

The State of Western Australia v Quartermaine [2020] WASC 458

The State of Western Australia v Rigden [2018] WASC 217

The State of Western Australia v Shayler [2019] WASC 86

The State of Western Australia v Siddique [No 2] [2016] WASC 358

The State of Western Australia v Silins [2022] WADC 109

The State of Western Australia v Smith [2020] WASC 282

The State of Western Australia v Smith [2024] WASC 361

The State of Western Australia v St Clair Honey [2022] WASC 203

The State of Western Australia v Tarau [2005] WASC 290

The State of Western Australia v Taylor [2021] WASC 470

The State of Western Australia v Wright [2007] WASC 80

The State of Western Australia v Zahidi [No 2] [2024] WASC 8

Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664

Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254

Table of Contents

Introduction and overview

Procedural and factual background

The State's application

Statutory provisions

Criminal Code

Criminal Procedure Act

CLMI Act

Ward v The Queen

Post-Ward v The Queen

Appeal decisions

Single judge decisions

The binding authority of Ward v The Queen

The effect of the CLMI Act

Outcome for the present case

QUINLAN CJ:

Introduction and overview

1. For almost 25 years it has been the law in this State that, where a person is charged with murder and raises the defence of insanity under s 27 of the Criminal Code, the court must determine whether the accused is criminally responsible for the killing (in accordance with s 27) before determining the issue as to whether the accused had the requisite intention for murder. It is only where the defence of insanity is rejected by the judge (or jury as the case may be) that the question of the accused's intent falls for consideration.

2. This practice was established, in cases of murder (including the former offence of wilful murder), following the decision of the Full Court in Ward v The Queen:[1] a decision of a bench comprised of five judges of this court. While the identification of the ratio decidendi of Ward v The Queen is not without difficulty, the courts of this State have consistently applied it as having established the law as I have just described it.

   [1] Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254(Ward v The Queen).

3. The consequence of Ward v The Queen has been that where a judge (or jury) is satisfied that an accused is not criminally responsible for a killing by reason of mental impairment, the verdict that has been entered is a verdict of not guilty of the offence for which he or she has been charged (whether that be murder or manslaughter). As Kennedy J put it in Ward v The Queen:[2]

   [T]he jury could not acquit the accused of wilful murder and murder but find him or her not guilty of manslaughter on the ground of unsoundness of mind.

   [2] Ward v The Queen [20] (Kennedy J).

4. In the present case the accused, Sara McCullock, has been charged with the murder of her infant son, contrary to s 279 of the Criminal Code. The charge has been listed for trial next month before a judge sitting alone. It is not in dispute that Ms McCullock killed her son. The primary issue for determination at trial is whether Ms McCullock was, by reason of mental impairment, deprived of one or more of the capacities referred to in s 27 of the Criminal Code. Her intention at the time of the killing is also in issue.

5. The State has applied, pursuant to s 98(2)(a) of the Criminal Procedure Act 2004 (WA) (Criminal Procedure Act), for an order that in Ms McCullock's trial the court is to decide all factual elements of s 279 of the Criminal Code, including any specific intent, before deciding any question of criminal responsibility under s 27 of the Criminal Code. Ms McCullock supports the State's application.

6. It will be immediately apparent that the order sought by the State is contrary to the practice established by Ward v The Queen. The State submits that in light of the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act) the 'rule' in Ward v The Queen has been overridden and ought not be followed. Alternatively, the State submits that, properly understood, Ward v The Queen permits the court to adopt the course proposed by the State and that the CLMI Act requires that it does so.

7. Put simply, the State submits that (contrary to what Kennedy J said in Ward v The Queen) it would be open to the court to acquit Ms McCullock of murder (in the absence of a finding of the intent required for murder) but find her not guilty of manslaughter on the ground of mental impairment. The State submits that in such a case the limiting term set by the court pursuant to s 50(2) of the CLMI Act would be the 'best estimate' of the term of imprisonment that the court would, in all the circumstances, have imposed for the offence of manslaughter, rather than murder.[3] Otherwise, the State submits, the application of the rule in Ward v The Queen would lead to an unjust result.

   [3] Subject to the other assumptions required by s 50 of the CLMI Act.

8. For the reasons that follow, and as attractive as aspects of the State's position may be from a general policy perspective, I am unable to accept the State's submissions. The approach required by Ward v The Queen reflects fundamental principles of criminal responsibility under the Criminal Code. The CLMI Act does not address those well‑established matters of principle and cannot be construed as having, by implication, intended to change or alter them. The reasoning in Ward v The Queen, as it has long been understood and applied, is reasoning of the Full Court of this court. Even if I disagreed with that reasoning (which, at present, I do not), or considered that it leads to inconvenient or even 'unjust' results, I consider that I am bound to follow it.

9. I have set out what I consider to be the proper approach, as a matter of law, in relation to the determination of the issues at Ms McCullock's trial. To the extent that the approach I have identified is thought to lead to inconvenient or unjust results in the application of the CLMI Act, those are matters that must be dealt with, in an appropriate case, by the Court of Appeal or otherwise addressed by the Parliament.

Procedural and factual background

1. Ms McCullock is charged that on or about 26 April 2022 at Madora Bay she murdered Jace Air Martin, contrary to s 279 of the Criminal Code. Jace was Ms McCullock's 14‑month‑old son.

2. On 23 April 2024, Forrester J granted an application for trial by judge alone.[4] The trial is listed to commence on 12 November 2024.

   [4] The State of Western Australia v McCullock [2024] WASC 143 (McCullock).

3. The State case is that Ms McCullock killed Jace at some point between about 8.00 pm on 26 April 2022 (when Ms McCullock last spoke to her family) and 5.00 am the following morning, when police attended at Ms McCullock's house and discovered her holding Jace's deceased body. It is not in dispute, and will be admitted at trial, that Jace died as a result of head injuries and that Ms McCullock caused those injuries by striking Jace's head on the ground.[5]

   [5] McCullock [15] (Forrester J).

4. It is also not in dispute that Ms McCullock has a history of mental ill‑health. Both parties intend to lead expert evidence at trial, to the effect that, at the time Ms McCullock did the act which caused Jace's death, Ms McCullock was deprived of the capacity to know that she ought not do the act, and that she was deprived of that capacity due to her acutely impaired mental state and impaired judgement.[6]

   [6] McCullock [17] ‑ [18] (Forrester J).

5. Accordingly, and without pre-empting any finding by the trial judge, if the expert evidence to be called by the parties is accepted by the trial judge, it will mean that Ms McCullock is not criminally responsible for the act that caused Jace's death (pursuant to s 27 of the Criminal Code). That is, of course, a matter for the trial judge.

6. In addition, the State will adduce evidence that, after Ms McCullock was arrested, and while receiving medical treatment, she made statements to the effect that she had killed Jace because she believed he was going to be tortured for eternity and she had struck him on the ground, believing that killing him would prevent him from being tortured. Plainly, if that evidence is accepted as reliable evidence as to her state of mind at the time of the killing, it would be able to support a finding that, at the time of the killing, Ms McCullock intended to kill Jace (albeit that her intention would have been the result of a delusion caused by her mental impairment).

7. Nevertheless, whether Ms McCullock did have the intention required to prove the offence of murder (as opposed to manslaughter) is not an admitted fact for the purposes of trial. The State accepts that, if it is necessary for the court to determine the issue of Ms McCullock's intention, it is a live issue as to whether the admissions Ms McCullock is said to have made during her treatment accurately reflected her state of mind at the time that she killed Jace.

8. The issue that arises in the State's present application is whether, and if so at what point, the court would be required to determine whether Ms McCullock had the intention required for the offence of murder.

The State's application

1. As I have said, the order sought by the State is that in Ms McCullock's trial the court is to decide all factual elements of s 279 of the Criminal Code, including any specific intent, before deciding any question of criminal responsibility under s 27 of the Criminal Code. That is, the State submits that, at trial, the court must make a finding as to whether it is satisfied beyond reasonable doubt that Ms McCullock intended to cause the death of Jace (s 279(1)(a)) or intended to cause Jace a bodily injury of such a nature as to endanger, or be likely to endanger, Jace's life (s 279(1)(b)), before considering s 27 of the Criminal Code.

2. The State submits that, in the event that the court is not satisfied that Ms McCullock had either such intention and is satisfied that Ms McCullock is not criminally responsible for the act which caused his death pursuant to s 27 of the Criminal Code, the appropriate verdicts would be a verdict of acquittal on the charge of murder and a verdict of not guilty by reason of mental impairment on the statutory alternative charge of manslaughter.

3. In such a case, the State submits, the court would be required to make a custody order under pt 5 of the CLMI Act, and to set a limiting term pursuant to s 50(2) of the CLMI Act as the best estimate of the term of imprisonment that the court would, in all the circumstances have imposed for the offence of manslaughter.

4. The State submits that, if the court determines the issues in the manner that has been applied since Ward v The Queen, and finds Ms McCullock not guilty of murder by reason of mental impairment without considering whether she had the relevant intention necessary to establish the offence of murder, it would have the consequence that the limiting term pursuant to s 50(2) of the CLMI Act would be the duration of Ms McCullock's life (being the best estimate of the term of imprisonment that the court would, in all the circumstances, have imposed for the offence of murder). That might be the case notwithstanding that Ms McCullock might not have had the relevant intention necessary to establish the offence of murder.

5. This cannot, the State submitted, have been Parliament's intention in enacting the CLMI Act, and that the terms of the CLMI Act therefore require the course that it proposes.

6. Not surprisingly, counsel for Ms McCullock, Ms Auburn, supported the State's application and adopted the State's submissions. While this meant that there was not a proper contradictor before me, counsel representing the State, Mr Stanwix (who appeared with Ms Finn), quite properly identified any authorities and arguments that could militate against its application. I record the court's considerable appreciation for counsel's careful and thorough submissions.

7. Before turning to the issues, it is necessary to set out a number of the relevant statutory provisions.

Statutory provisions

1. The relevant statutory provisions are found in the Criminal Code, the Criminal Procedure Act and the CLMI Act.

Criminal Code

1. Section 1 of the Criminal Code provides that the 'term criminally responsible means liable to punishment as for an offence; and the term criminal responsibility means liability to punishment as for an offence'.

2. An 'offence' is in turn defined by s 2 of the Criminal Code as follows:

   An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.

3. Sections 26 and 27 of the Criminal Code provide:

   26. Presumption of sanity

   Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

   27.Insanity

   (1)A person is not criminally responsible for an act or omission on account of mental impairment if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.

   (2)A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.

4. These provisions were relevantly in the same terms (save for the change from the expression 'unsoundness of mind' to 'mental impairment') as applied at the time of the decision in Ward v The Queen.

5. At that time, the Criminal Code also included s 653, which provided:

   653. Acquittal on account of unsoundness of mind

   (1)If on the trial on indictment of an accused person the question arises whether the person was not criminally responsible for an act or omission on account of unsoundness of mind, the jury are required, if they find the person not guilty, to return a special verdict as to –

   (a)whether they found the person not guilty on account of unsoundness of mind at the time of the act or omission; and

   (b)if they so acquitted the person, the offence the person was acquitted of.

   (2)If a jury finds an accused not guilty on account of unsoundness of mind the person is to be dealt with under the Criminal Law (Mentally Impaired Defendants) Act 1996.

6. Section 653 of the Criminal Code was repealed in 2004, following the enactment of the Criminal Procedure Act.

Criminal Procedure Act

1. The Criminal Procedure Act relevantly contains the following provisions in relation to trials involving s 27 of the Criminal Code.

2. Section 113 of the Criminal Procedure Act provides:

   113. Special verdict may be required

   (1)If in a trial the question arises whether, under The Criminal Code section 27, the accused was not criminally responsible for an act or omission on account of mental impairment, the judge must direct the jury that if it finds the accused not guilty of the charge on account of mental impairment, it must return a special verdict to that effect.

   (2)If the judge is of the opinion that the proper sentence or order to be imposed –

   (a)on an accused if convicted; or

   (b)on an accused if found not guilty on account of mental impairment,

   may depend upon a specific fact, the judge may require the jury to give its verdict on that fact specifically.

3. Sections 146 and 147 of the Criminal Procedure Act provide:

   146. Acquittal on account of mental impairment

   If under The Criminal Code section 27 an accused is found not guilty of a charge on account of mental impairment, whether by a court of summary jurisdiction or by a jury's special verdict or by a judge under section 93(1) or in a trial by the judge alone, the court must record the finding.

   147. Judgment, entry of

   (1)If an accused pleads guilty to or is found guilty of a charge, the court, unless it enters judgment under section 128(2), may enter a judgment of conviction of the offence charged in respect of the accused.

   (2)If an accused is found not guilty of a charge on account of mental impairment, the court, unless it enters judgment under section 128(2), may enter a judgment of acquittal of the offence charged on account of mental impairment in respect of the accused.

   (3)If an accused is found not guilty of a charge, other than on account of mental impairment, the court may enter a judgment of acquittal of the offence charged in respect of the accused.

4. Section 149 of the Criminal Procedure Act provides:

   149. Acquittal, consequences of

   (1)If a court acquits an accused of a charge on account of mental impairment, the court must deal with the accused under the Criminal Law (Mental Impairment) Act 2023.

   (2)If a court otherwise acquits an accused of a charge, the court must discharge the accused from the charge.

1. Save for the change from the expression 'unsoundness of mind' to 'mental impairment' and the reference to the CLMI Act itself, these provisions of the Criminal Procedure Act have been in the same terms since the Criminal Procedure Act was enacted.

CLMI Act

1. The CLMI Act repealed the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (repealed Act) and came into operation on 1 September 2024.

2. I set out a general overview of the CLMI Act in The State of Western Australia v Chokolich.[7] I will not repeat it all. It suffices for me to note some particular matters.

   [7] The State of Western Australia v Chokolich [2024] WASC 346 (Chokolich) [24] ‑ [36] (Quinlan CJ).

3. Pursuant to s 44 of the CLMI Act, where a court must deal with a person because of s 149(1) of the Criminal Procedure Act (i.e. where the accused is acquitted of a charge on account of mental impairment), the court must make an order under pt 5 of the CLMI Act.

4. The CLMI Act also makes provision for orders to be made under pt 5 in relation to persons who are unfit to stand trial.

5. Where a person is unfit to stand trial (following an opportunity to become fit),[8] the court must either discharge the accused from the charge or order that a special proceeding under pt 3, div 3, sub‑div 3 take place (special proceeding).[9]

   [8] CLMI Act, s 35.

   [9] CLMI Act, s 37. The accused may only be discharged in relation to a charge of a simple offence or an indictable offence that was to be tried summarily (compare s 37(2) and s 37(3)).

6. The purpose of a special proceeding is for the court to decide the charge against the accused on the evidence available.[10] Section 41(2) and (3) provide:

   [10] CLMI Act, s 41(1).

   (2)In deciding the charge the court may find that the accused –

   (a)is not guilty (other than as described in paragraph (b)); or

   (b)is not guilty on account of mental impairment under The Criminal Code section 27; or

   (c)committed the offence charged or another offence which, on the charge, the accused might be found to have committed.

   (3)To find that the accused committed an offence, the court must be satisfied beyond a reasonable doubt.

7. If a finding is made under s 41(2)(a) (that is, the accused is not guilty) the accused is entitled to a judgment of acquittal.[11] Similarly, if a finding is made under s 41(2)(b), the court must enter a judgment of not guilty on account of mental impairment and make an order under pt 5 of the CLMI Act.[12] If a finding is made under s 41(2)(c), the court must not enter a judgment of conviction but must make an order under pt 5 of the CLMI Act.[13]

   [11] CLMI Act, s 43(1) & (4).

   [12] CLMI Act, s 43(2), (4) & (5).

   [13] CLMI Act, s 43(3) & (5).

8. Pursuant to s 46(1) of the CLMI Act, if a court must make an order under pt 5 of the CLMI Act, the court must:

   (a)make a custody order; or

   (b)make a community supervision order; or

   (c)order that the person be released unconditionally.

9. Where a custody order is made under the CLMI Act, either in relation to a person who is not fit to stand trial or a person who is acquitted on account of unsoundness of mind, the court is now required to set a limiting term.

10. The relevant provisions are s 50 and s 51 of the CLMI Act. Those sections provide:

    50.Limiting term for custody order

    (1)In this section –

    term of detention means a term of detention under the Young Offenders Act 1994;

    term of imprisonment means term as defined in the Sentencing Act 1995 section 85(1).

    (2)If a court makes a custody order, the court must set a limiting term for the order, being the best estimate of the term of imprisonment or term of detention that the court would, in all the circumstances, have imposed if –

    (a)the court were sentencing the person for the offence; and

    (b)any mental impairment of the person were not taken into account.

    (3)For the purposes of subsection (2), the court must assume that –

    (a)the person had pleaded guilty to the charge at the earliest opportunity; and

    (b)there is no other option but to impose a term of imprisonment or term of detention.

    (4)The limiting term commences on the day on which the order is made unless the court, after taking into account any time that the person has already spent in custody in relation to the offence, orders that the term be taken to have commenced on an earlier day.

    51.When custody order ceases to have effect

    A custody order has effect until the earliest of the following –

    (a)its limiting term expires;

    (b)it is cancelled under section 74;

    (c)if a leave of absence order applies to the person subject to the custody order – an order of the Tribunal under section 73(1)(d)(iii) cancelling all of the conditions of the leave of absence order comes into effect.

11. The CLMI Act provides no minimum term for a custody order. Once a custody order is made, the order must be reviewed by the Mental Impairment Review Tribunal (Tribunal) and is subject to periodic reviews.[14] Subject to the Tribunal having first made a leave of absence order under s 77 of the CLMI Act (which it can do at any time), a custody order may be cancelled prior to the expiration of the limiting term by order of the court that made the custody order[15] or by an order of the Tribunal.[16]

    [14] CLMI Act, s 66.

    [15] CLMI Act, s 51(b), s 74.

    [16] CLMI Act, s 51(c), s 73(1)(d)(iii).

12. I turn then to the decision in Ward v The Queen and its application by the courts prior to the enactment of the CLMI Act.

Ward v The Queen

1. An important precursor to the decision in Ward v The Queen was the 1994 decision of the High Court in Hawkins v The Queen.[17] Hawkins v The Queen concerned s 13 and s 16(1) of the Criminal Code (Tas), which were relevantly to the same effect as s 26 and s 27 of the Criminal Code.

   [17] Hawkins v The Queen (1994) 179 CLR 500 (Hawkins v The Queen).

2. In a unanimous judgment, the High Court in Hawkins v The Queen said:[18]

   In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved (the latter by reference either to s 13 or to s 16) before there is any issue of the specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused's mental condition at the time when the incriminated act was done fell short of insanity under s 16.

   It follows that, if there be evidence that the accused was suffering from a mental disease when the incriminated act was done and the evidence is capable of supporting a finding of insanity, the trial judge must give the jury a direction on that issue. Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done, is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was 'voluntary' and 'intentional' within the meaning of those terms in s 13 of the Code. But such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent – relevantly, the intents prescribed by pars (a) and (b) of s 157(1) of the Code.

   [18] Hawkins v The Queen, 517 (Mason CJ, Brennan, Deane, Dawson & Gaudron JJ).

3. The trial judge in Ward v The Queen, following an earlier decision of the Full Court in Garrett v The Queen[19] (itself relying upon Hawkins v The Queen) had directed the jury that, once they were satisfied beyond reasonable doubt that the appellant had killed the deceased, they should then consider whether, when the appellant did the act which caused the death of the deceased, he was not criminally responsible for that act by reason of insanity, and that the defence of insanity should be considered by them before they considered what was the appellant's specific intention at the material time. The appellant appealed on the ground that this was a misdirection.

   [19] Garrett v The Queen [1999] WASCA 169.

4. All five of the judges in Ward v The Queen dismissed the appeal. They nevertheless did so for different reasons.

5. Significantly, a majority of the court (Kennedy, Scott and Wallwork JJ), in separate judgments, concluded that the trial judge's direction was correct. Wheeler J, by contrast, concluded that the direction might have led the jury into error but that the risk of error did not materialise in the particular circumstances of the case. Pidgeon J reached a similar conclusion to that of Wheeler J.

6. In his reasons, Kennedy J, having cited the above passage from Hawkins v The Queen, said:[20]

   It clearly follows from s 27 of the Western Australian Code that if an accused is found by the jury, on the balance of probabilities, to be of unsound mind, he or she is not criminally responsible for the killing. No question of intent, or lack of intent, then arises. It is, however, still necessary to apply s 653(1) of the Code, which requires the jury, if they have found the accused person not guilty on account of unsoundness of mind at the time of the act or omission, to return a special verdict as to 'the offence of which the person was acquitted'. If there is a finding of unsoundness of mind, applying Hawkins v The Queen, the offence of which the accused must be found not guilty must be the offence with which he or she was charged. Thus, the jury could not acquit the accused of wilful murder and murder but find him or her not guilty of manslaughter on the ground of unsoundness of mind.

   [20] Ward v The Queen [20] (Kennedy J).

7. His Honour later said:[21]

   In the later case of Garrett v The Queen [1999] WASCA 169, a majority of this Court held that the Court was bound by the views of the High Court in Hawkins v The Queen and that, accordingly, the issue of insanity falls to be determined before the issue of intent. In my view, the opinion expressed in the joint judgment of five members of the High Court clearly represented its considered opinion and, it follows, it must be accepted and applied. In the present case, the appellant admitted the killing and the next question was whether he was criminally responsible for the killing, having regard to the terms of s 27 of the Act. Only if that question was answered adversely to the appellant did the next question, what was the appellant's intention at the material time, require consideration. The substitution in 1966 of the new s 653, requiring a special verdict as to the offence of which the accused was acquitted cannot, in my opinion, require a different conclusion, although it was no doubt incorporated in the Code on the basis of the decision in Perkins v R.

   [21] Ward v The Queen [25] (Kennedy J).

8. To similar effect, Wallwork J, again relying upon Hawkins v The Queen, said:[22]

   In my opinion, as the question of what offence an accused person could be found to be guilty of does not arise until he or she is criminally responsible for the act or omission in question, it follows that questions arising as to an accused person's criminal responsibility should be decided before questions such as whether a person is guilty of wilful murder, murder or manslaughter, which questions depend (in this State) on the intent with which that person may have acted.

   Further, where there is evidence which raises a question of whether the accused is criminally responsible, there is no reason why a Judge, directing a jury, should not direct the jury to decide that question first. If the accused is criminally responsible, the jury can then consider the remaining questions which have to be decided. Unless the person is criminally responsible there is no point in deciding the further question

   [22] Ward v The Queen [56] - [57] (Wallwork J).

9. Scott J, also following Hawkins v The Queen, said:[23]

   It follows, in my opinion, that the decision in Hawkins should now be followed and that the question of insanity should fall for determination before the issue of intent. It is only where the defence of insanity is rejected that ordinarily the question of intent will fall for consideration by a jury. It follows, in my opinion, that s 653(1)(b) should not be considered mandatory and that a jury should be directed that they are only to make a specific finding as to the offence of which the accused is acquitted by unsoundness of mind where they can properly reach such a special verdict. If a jury is unable to so conclude, then the verdict of acquittal on account of unsoundness of mind should be taken as the verdict of the jury without requiring the jury to return the special verdict under s 653.

   [23] Ward v The Queen [103] (Scott J).

10. As I have said, Wheeler J took a contrary view as to the effect of Hawkins v The Queen. In addition, her Honour emphasised the general point of principle (which is no doubt correct) that jurors are free to organise their individual processes of reasoning, or their discussion as a group, in whatever manner appears to them to be convenient.[24] Her Honour's ultimate conclusion was that:[25]

    The legal context preceding Hawkins, the issues of principle and the practical considerations to which I have referred lead me to the view that Hawkins was not intending to dictate the order in which the jury should consider questions of insanity and other issues arising during the course of a trial for wilful murder.

    [24] Ward v The Queen [130] (Wheeler J).

    [25] Ward v The Queen [146] (Wheeler J).

11. Similarly, Pidgeon J said:[26]

    I have reached a similar conclusion to Wheeler J that so long as a correct direction is given in respect of each issue, the onus and standard of proof is made clear in relation to each issue, and it is made clear to the jury that it is only when they have rejected any possibility of unqualified acquittal that they may turn to issues of insanity, then there is no requirement to consider issues arising in a trial in any particular order.

    [26] Ward v The Queen [30] (Pidgeon J).

12. In relation to Hawkins v The Queen, Pidgeon J considered that 'in principle' judges should direct along the lines identified by the High Court but that the circumstances of a particular case may call for a different direction.

Post-Ward v The Queen

1. The decision in Ward v The Queen has been considered or applied by the courts in this State many times.

Appeal decisions

1. Ward v The Queen has only been considered by the Full Court or Court of Appeal twice: in Stanton v The Queen[27] and in Cooley v Western Australia.[28]

   [27] Stanton v The Queen [2001] WASCA 189; (2001) 24 WAR 233 (Stanton v The Queen).

   [28] Cooley v Western Australia [2005] WASCA 160; (2005) 155 A Crim R 528 (Cooley v Western Australia).

2. In Stanton v The Queen, the Full Court was concerned with a direction as to the order in which the jury should consider the different forms of homicide. There was no issue arising under s 27 of the Criminal Code. Nevertheless, Owen J, with whom Malcom CJ[29] and Murray J[30] relevantly agreed, referred to Ward v The Queen as being an exception to the general rule as to jury deliberations. His Honour said:[31]

   In my view, with one proviso, there is no rule of law or practice that requires a trial Judge to direct a jury that they must consider (as opposed to decide) on various alternative offences that are open on an indictment in any particular order. The trial Judge may do so if he or she thinks that the facts of the case so require and that it will assist the jury to do so. But the power of the jury to approach the task in whatever way they see fit must be respected. If such a direction is given it should be made clear that it is directory or permissive rather than mandatory.

   The proviso or cautionary note is one that does not arise in this case but to avoid confusion in the future I will mention it. It relates to the situation that arose in Hawkins. As a result of what was said in Ward, where the jury is satisfied that the accused killed the deceased and the case raises issues of insanity as well as intention, a trial Judge must always direct a jury that they should decide the issue of responsibility before determining questions such as whether a person is guilty of wilful murder, murder or manslaughter, which depend on the intent with which the accused may have acted. But this is not inconsistent with the general statement that a jury should not be restricted in choosing the order in which they will consider alternative offences. Hawkins and Ward are, of course, binding but in any event I have no difficulty in accepting the result. If a person is not criminally responsible due to some defect of the mind (permanent or transitory) he or she could not be guilty of any of the alternative offences arising from the indictment.

   [29] Stanton v The Queen [11] (Malcom CJ).

   [30] Stanton v The Queen [33] (Murray J).

   [31] Stanton v The Queen [84] - [85] (Owen J).

3. An appeal to the High Court from the Full Court's decision in Stanton v The Queen was dismissed.[32] The High Court did not refer to either Hawkins v The Queen or Ward v The Queen.

   [32] Stanton v The Queen [2003] HCA 29; (2003) 77 ALJR 1151.

4. Cooley v Western Australia was a case in which s 27 of the Criminal Code was raised at trial, although there was no complaint as to the direction in that regard. The appeal was, inter alia, concerned with whether the jury had been properly directed as to the use of evidence as to mental disease in relation to the issue of intent.

5. In that context, Roberts-Smith JA (Wheeler and Pullin JJA agreeing) referred to Ward v The Queen to the following effect:[33]

   Ward followed and approved the majority judgments in the earlier case of Garrett v The Queen [1999] WASC 169. Again, the substantial point in issue there was whether the jury should be directed to consider the issue of insanity before that of intent (in both Ward and Garrett it was held they should). It was assumed the evidence going to insanity was also relevant to, and admissible on, the question of intent.

   [33] Cooley v Western Australia [33] (Roberts-Smith JA).

6. It will be apparent that in both Stanton v The Queen and Cooley v Western Australia the court regarded Ward v The Queen as binding authority that where a case raises issues of insanity as well as intention, the trial judge must always direct a jury that they should decide the issue of criminal responsibility before determining questions of intention. That is, in both cases, the court regarded the 'rule' in Ward v The Queen to be that expressed in the reasons of Kennedy, Scott and Wallwork JJ.

Single judge decisions

1. Ward v The Queen has almost universally been understood and applied in this way at first instance in this court and the District Court.

2. One exception to that univocality was the decision of EM Heenan J in R v Lavell,[34] decided in 2002. In that case his Honour, by way of obiter, said that he did not consider that the reasoning of Kennedy, Scott and Wallwork JJ should be taken as representing the ratio decidendi of Ward v The Queen.[35] While EM Heenan J expressly said that the issue did not arise in the case before him, he said that:[36]

   with respect to those who take a different view, there appears to me to be a statutory imperative requiring the tribunal of fact to consider and return a special verdict under s 653 identifying the offence of which, by reason of the finding of insanity, the accused has been acquitted.

   [34] R v Lavell [2002] WASC 200 (R v Lavell).

   [35] R v Lavell [47] (EM Heenan J).

   [36] R v Lavell [48] (EM Heenan J).

3. It is notable, in this context, that in expressing this view, EM Heenan J relied in part upon the requirement in s 653(1)(b) of the Criminal Code for the jury to return a special verdict as to 'the offence the person had been acquitted of'. That requirement, his Honour considered, militated against the approach required by the reasoning of Kennedy, Scott and Wallwork JJ in Ward v The Queen.

1. This is significant because s 653(1)(b) of the Criminal Code was repealed upon the enactment of the Criminal Procedure Act. The relevant provisions of the Criminal Procedure Act in relation to verdicts under s 27 of the Criminal Code (i.e. s 113, s 146 and s 147 of the Criminal Procedure Act) do not make any reference to the court identifying 'the offence the person had been acquitted of'. If anything the provisions of the Criminal Procedure Act reflect the approach described, in particular by Kennedy J, in Ward v The Queen to the effect that a special verdict is one in relation to 'the charge' (i.e. the charge on the indictment): see s 113(1).

2. In any event, in every decision of this court since R v Lavell and since the enactment of the Criminal Procedure Act, the court has, without exception, regarded Ward v The Queen as authoritatively determining that, on a charge of murder, the issue of insanity must be determined before the issue of intent and that only if the issue of insanity is determined adversely to the accused does the question of intent arise.[37] The overwhelming majority of those cases have identified Kennedy J's reasons in Ward v The Queen (or the reasons of Kennedy, Scott and Wallwork JJ) as relevantly articulating the 'rule' in Ward v The Queen.

   [37] The State of Western Australia v Hone [2007] WASC 64 [20] (Murray J); The State of Western Australia v Wright [2007] WASC 80 [19] (Miller J); The State of Western Australia v McDonald [No 2] [2010] WASC 355 [123] (Hall J); The State of Western Australia v Evans [No 2] [2012] WASC 366 [237] (Hall J); The State of Western Australia v Brown [2013] WASC 349 [31] (Jenkins J); The State of Western Australia v Chiha [2015] WASC 138 [140] (McKechnie J); The State of Western Australia v Lang [No 2] [2016] WASC 206 [21] (Jenkins J); The State of Western Australia v Siddique [No 2] [2016] WASC 358 [41] (Jenkins J); The State of Western Australia v Rigden [2018] WASC 217 [42] (Hall J); The State of Western Australia v Marotta [2018] WASC 329 [16] (Jenkins J); The State of Western Australia v Jones [2018] WASC 395 [36] (Jenkins J); The State of Western Australia v Shayler [2019] WASC 86 [34] (McGrath J); The State of Western Australia v Chaytor [2019] WASC 228 [30] (Jenkins J); The State of Western Australia v Daly [2019] WASC 386 [25] (McGrath J); The State of Western Australia v Knock [2020] WASC 246 [37] (Derrick J); The State of Western Australia v Smith [2020] WASC 282 [39] (Fiannaca J); The State of Western Australia v Ihalahewa [2020] WASC 386 [35] (Fiannaca J); The State of Western Australia v Petersen-Crofts [2021] WASC 47 [5] (Quinlan CJ); The State of Western Australia v Djurasovic [2021] WASC 466 [61] (Hall J); The State of Western Australia v Taylor [2021] WASC 470 [41] (Derrick J); The State of Western Australia v Davidson [2022] WASC 70 [34] (Mazza J); The State of Western Australia v St Clair Honey [2022] WASC 203 [14] (Corboy J); The State of Western Australia v Dent [No 2] [2023] WASC 261 [19] (Forrester J); The State of Western Australia v Pal [No 2] [2023] WASC 449 [28] (McGrath J).

3. This approach has also consistently been applied in decisions of this court and the District Court in relation to other charges that include an element requiring proof of a specific intent, including attempted murder,[38] arson,[39] being armed with intent to cause fear[40] and doing an act with intent to harm.[41] In those contexts the courts have occasionally made findings in relation to intent (particularly in the case of attempts), but have not questioned this understanding of the central finding of Ward v The Queen.

   [38] The State of Western Australia v Tarau [2005] WASC 290 [40] – [41] (Miller J); The State of Western Australia v Iley [2006] WASC 107 [27] (Johnson J); Western Australia v Lang [No 2] [2016] WASC 206 [22] (Jenkins J); The State of Western Australia v Chaytor [2019] WASC 228 [32] (Jenkins J); The State of Western Australia v Haast [2020] WASC 161 [24] (McGrath J); The State of Western Australia v Pearson [2022] WASC 191 [26] (Corboy J); The State of Western Australia v Zahidi [No 2] [2024] WASC 8 [19] (Whitby J).

   [39] The State of Western Australia v Pal [No 2] [2023] WASC 449 [33] (McGrath J).

   [40] The State of Western Australia v Herbert [2017] WASC 101 [41] - [42] (Jenkins J).

   [41] The State of Western Australia v Silins [2022] WADC 109 [27] (Gillan DCJ).

The binding authority of Ward v The Queen

1. As a judge sitting at first instance, I am of course bound by the ratio decidendi of Ward v The Queen. I recognise in that context, however, that, given the different approaches taken by each of the judges in that case, the identification of the ratio decidendi of Ward v The Queen is not without difficulty. There is no single line of reasoning that united all of the judges who dismissed the appeal in that case.

2. Nevertheless, in my view, given that a majority of the judges in Ward v The Queen (Kennedy, Scott and Wallwork JJ) concluded that the trial judge's direction in that case was correct and reached that conclusion based on the authority of the High Court in Hawkins v The Queen, the reasoning of those judges best reflects the ratio decidendi of the case. That reasoning is that, on a charge of murder, the issue of insanity must be determined before the issue of intent and that only if the issue of insanity is determined adversely to the accused does the question of intent arise.

3. In any event, to the extent that the ratio decidendi of Ward v The Queen may have been unclear when it was decided, it is clear that since that time both on appeal and at first instance, judges of this court have consistently held that the ratio of the case is reflected in the reasoning of Kennedy, Scott and Wallwork JJ. In those circumstances, I am not free to adopt my own view as to the effect of Ward v The Queen without reference to all of those other judges who have considered and applied it. I could only do so if I were of the view that those judges were 'plainly wrong' in their conclusions as to the effect of Ward v The Queen.[42]

   [42] See BHP Billiton Iron Ore Pty Ltd v National Competition Council[2007] FCAFC 157; (2007) 162 FCR 234 [88] ‑ [89] (Greenwood J).

4. It will not come as a surprise that I do not hold the view that the other judges of this court who have considered and applied Ward v The Queen are plainly wrong as to the binding effect of that decision. On the contrary, in my view, the reasoning of Kennedy, Scott and Wallwork JJ accords with what the High Court have identified as the 'basic questions' in a criminal trial. The issues raised by s 27 of the Criminal Code are concerned with whether an accused person is criminally responsible for an act or omission. If a person is not criminally responsible for an act or omission on account of mental impairment that person is not, and cannot be, criminally responsible for any offence arising from that act or omission. In cases of homicide, issues of intention are concerned with the degree of criminal responsibility for the relevant act or omission causing death. To speak of degrees of criminal responsibility, in circumstances where there is, or can be, no criminal responsibility at all is, at best, hypothetical and, at worst, incoherent.

5. For these reasons, in my view, subject to the effect of the CLMI Act, where a person is charged with murder and raises the defence of insanity under s 27 of the Criminal Code, the court must determine whether the accused is criminally responsible for the killing (in accordance with s 27) before determining the issue as to whether the accused had the requisite intention for murder. If the person is not criminally responsible for the killing, then the proper verdict is not guilty by reason of mental impairment of that charge.

6. I turn then to whether the CLMI Act can be regarded as having altered that position.

The effect of the CLMI Act

1. The State's application that the court should depart from the approach to mental impairment and intention that has been established following Ward v The Queen was put on a number of separate bases.

2. Underlying all of the bases upon which the State put its case on the application, however, is the proposition that it is open to a court, on a charge of murder, to enter a verdict of not guilty to the offence of murder but find the accused not guilty of manslaughter on the grounds of mental impairment.

3. In those circumstances, the State submits, the limiting term pursuant to s 50(2) of the CLMI Act would be the 'best estimate' of the term of imprisonment that the court would, in all the circumstances have imposed for the offence of manslaughter, because the 'offence' within the meaning of s 50(2)(a) would be the offence of manslaughter.

4. Accordingly, as I have said, the State's argument depends upon a particular form of verdict being available on a charge of murder: namely a verdict of not guilty to the offence of murder but not guilty on the grounds of mental impairment of manslaughter. That is, of course, precisely the form of verdict that Kennedy J, in Ward v The Queen, held was not available.[43]

   [43] Ward v The Queen [20] (Kennedy J).

5. The first, and primary, basis for the State's application was that, properly understood, Ward v The Queen accommodates dealing with the elements in the order proposed by the State, and necessarily, that properly understood, Ward v The Queen contemplates the form of verdict that it contends is available.

6. In that context, the State referred to passages in the judgments in Ward v The Queen, for example, which used expressions such as 'ordinarily'[44] or the fact that unless an accused is criminally responsible there is 'no point in deciding the further questions'.[45] Those passages, the State submitted, reveal that the approach prescribed by Ward v The Queen was never 'mandatory' and always implicitly permitted the approach for which the State now contends.

   [44] Ward v The Queen [103] (Scott J).

   [45] Ward v The Queen [56] ‑ [57] (Wallwork J).

7. It will be apparent from what I have already said that I am unable to accept that approach to the authority of Ward v The Queen. For the reasons I have given, following Ward v The Queen the courts in this State have consistently held that, on a charge of murder, the court must determine whether the accused is criminally responsible for the killing (in accordance with s 27) before determining the issue as to whether the accused had the requisite intention for murder. If the person is not criminally responsible for the killing, then the proper verdict is not guilty by reason of mental impairment of that charge.

8. Unless those propositions have been implicitly 'overruled' by the CLMI Act, I am not free to depart from them.

9. The State therefore submitted in the alternative that the enactment of the CLMI Act has 'by necessary implication' overruled Ward v The Queen.[46]

   [46] State's Submissions dated 14 October 2024 [50]. The State also identified a third basis for its application, relying upon the accused's right to a fair trial, although that basis was not developed at the hearing of the application. I will nevertheless address it briefly later in these reasons.

10. Whether that is the case is a matter of statutory construction. The court's task, in that regard, must begin and end with the statutory text as a whole, considered in its context, including its objectively discerned statutory purpose.[47]

    [47] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] ‑ [23] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).

11. The first point to make about the construction of the CLMI Act is that it is clear from the statutory text that the CLMI Act is concerned, and only concerned, with the consequences of a finding of not guilty by reason of mental impairment (or a finding that an accused is not fit to stand trial). The CLMI Act did not, relevantly, amend or alter any of the substantive provisions of the Criminal Code or the Criminal Procedure Act in relation to criminal responsibility, the determination of criminal charges or the verdicts that are available following criminal trials. The CLMI Act, for example, included no consequential amendments to the Criminal Code and the amendments that it made to the Criminal Procedure Act were entirely cosmetic.

12. While this is clear from the text of the CLMI Act itself, it is confirmed by relevant extrinsic material identified by the State on this application.[48] In that regard, the Review of the Criminal Law (Mentally Impaired Accused) Act 1996 – Final Report (Final Report), which led to the enactment of the CLMI Act, stated that the repealed Act was 'concerned not with the insanity defence itself, nor its operation and procedural requirements'.[49] The Final Report went on:[50]

    This distinction is critical in setting the scope of this Report. A detailed consideration of the insanity defence, its operation and procedural requirements is beyond the scope of this report. It is noted that a number of submissions addressed issues pertaining to the insanity defence, its operation and procedural requirements. It would not be appropriate to seek to address these issues in the context of an examination of the Criminal Law (Mentally Impaired Accused) Act 1996.

    [48] See Interpretation Act 1984 (WA), s 19.

    [49] Final Report [163].

    [50] Final Report [163] fn 45.

13. It cannot be said, therefore, that the CLMI Act expressly addressed the established approach to mental impairment and intention following Ward v The Queen. As the State recognised in its submissions before me, the approach that it now submits should be adopted could only be permitted, or required, by necessary implication from the CLMI Act.

14. In that context, I would again emphasise that it is the potential consequence of the verdict of not guilty of murder by reason of mental impairment (rather than a verdict not guilty of manslaughter by reason of mental impairment) that the State submits must, by necessary implication, have altered the verdicts available on a charge of murder where s 27 of the Criminal Code is raised.

15. For the reasons that follow, the CLMI Act does not have the effect contended for by the State.

16. Underlying the State's contention that the CLMI Act not only permits, but requires, a court to enter a verdict of not guilty of manslaughter by reason of mental impairment on a charge of murder in certain circumstances, is its submission that the reference to the 'offence' within the meaning of s 50(2)(a) of the CLMI Act, can only mean the offence of which the person was acquitted on account of mental impairment,[51] which in the circumstances must include a statutory alternative offence of which the accused might otherwise have been found guilty (if he or she were criminally responsible).

    [51] State's Submissions dated 14 October 2024 [44].

17. That submission was contrary to a submission made by the State, which I accepted, in Chokolich. In Chokolich, I observed that, in setting a limiting term, one of the assumptions upon which the court must proceed is that the court must assume that the person has pleaded guilty to the charge at the earliest opportunity.[52]

    [52] CLMI Act, s 50(3)(a); Chokolich [51] (Quinlan CJ).

18. In that context, and accepting a submission made by the State, I said:[53]

    In that regard, the 'offence' for which the best estimate of the term of imprisonment is determined is the offence 'charged'. This follows from the assumption that the person pleaded guilty to the 'charge', that is the 'allegation in a prosecution notice or indictment that a person has committed an offence'. In the present case, for example, the 'charge' and, thus the offence, is the offence of 'murder' (and not, for example, any statutory alternatives that might have been applicable at trial).

    [53] Chokolich [63] (Quinlan CJ) (footnotes omitted).

19. Indeed, as I later observed in Chockolich, 'the assumption that the person has pleaded guilty to the charge required by s 50(3)(a) may sit uncomfortably with the actual circumstances of the charged offence itself'.[54] Nevertheless, as I also said, the court setting the limiting term must do the best that it can, based on the assumptions required by s 50 of the CLMI Act.

    [54] Chokolich [67] (Quinlan CJ).

20. It will therefore be apparent that the nature of the 'charge' (and the assumption that flows from it) will, at least in some circumstances, have a significant impact on the court's hypothetical sentencing exercise under s 50 of the CLMI Act.

21. Chokolich concerned the setting of a limiting term of an existing custody order in a case where the respondent was unfit to stand trial, pursuant to the transitional provisions of the CLMI Act. Nevertheless, the construction that I placed on this aspect of s 50 of the CLMI Act in Chokolich was not restricted to the transitional provisions. At the very least, acceptance of the State's position on this application would require the expression 'offence' in s 50(2)(a) of the CLMI Act to have different, and potentially inconsistent, meanings in different circumstances. Such a construction should give any court pause for thought in an exercise of statutory construction, which is intended to produce a harmonious result and maintain the unity of the statutory scheme.[55]

    [55] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70] (McHugh, Gummow, Kirby and Hayne JJ).

22. The significance of the 'charge' for the setting of a limiting term is perhaps even more pronounced in the case of a person who is unfit to stand trial. In such a case, as summarised above, the court may be required to conduct a special proceeding. In that context the court, having decided the charge on the evidence available, has three available findings under s 41(2) of the CLMI Act, namely that the accused:

    (a)is not guilty (other than as described in (b)); or

    (b)is not guilty on account of mental impairment; or

    (c)committed the offence charged or another offence which, on the charge the accused might have been found to have committed.

23. It is apparent, by the repeated use of the word 'or', that s 41(2) of the CLMI Act does not contemplate that a court on a special proceeding can make a finding under two or more of s 41(2)(a), (b) and (c).[56] Thus, for example, s 41(2) does not appear to contemplate that, on a charge of murder, the court could find the accused is not guilty of murder (pursuant to s 41(2)(a)) and find the accused not guilty of manslaughter by reason of mental impairment (pursuant to s 41(2)(b)). Such a construction of s 42(2) is supported by the, apparently mutually exclusive, effects of the finding under s 41(2)(a), (b) or (c) provided for in s 43 of the CLMI Act.

    [56] See, to similar effect, in relation to s 46 of the CLMI Act, The State of Western Australia v Smith [2024] WASC 361 [27] (Quinlan CJ).

24. The operation of s 41 of the CLMI Act in relation to special proceedings is therefore consistent with a construction of s 50 whereby the 'offence' for which the best estimate of the term of imprisonment is determined, is the offence 'charged'. I recognise in this context that the position might be more complicated in a case under s 41(2)(c) where the court makes a finding that the accused committed another offence which, on the charge, the accused might be found to have committed. Ultimately, it is not necessary to resolve this last issue in this case. Indeed, the construction of s 41 generally does not finally arise for determination on this application. For that reason, the views that I have expressed as to its proper construction must be regarded as provisional.

25. Nevertheless, having regard to the CLMI Act as a whole, in my view the statutory text does not compel the conclusion that, by necessary implication, the potential consequences for the setting of a limiting term under s 50, should be taken to have 'overruled' the effect of Ward v The Queen, as it has been understood and applied in this court. Indeed, insofar as the 'offence' for the purposes of s 50(2)(a) is the offence 'charged' (i.e., the conclusion that I reached in Chokolich), s 50 of the CLMI Act is consistent with the approach in Ward v The Queen. I adhere to the conclusion that I reached in Chokolich (at [97] above).

1. The State, of course, relies not only upon the statutory text for its preferred construction. It also relies heavily on the broader purposes of the CLMI Act; namely, to ensure both the protection of the community, and the equal and dignified treatment of persons with mental impairments.[57]

   [57] CLMI Act, s 7.

2. In that regard, for example, the State submitted that, unless the course it proposes is adopted, an accused, who is not criminally responsible by reason of mental impairment, 'who may only have, as a matter of fact, committed manslaughter, … for no reason other than the fact that they were charged with murder, [may be] deprived of the benefit of a limiting term of a lower amount'.[58]

   [58] Ts 65.

3. Similarly, the State submitted in relation to the setting of a limiting term following the approach required by Ward v The Queen:[59]

   An elementary principle of sentencing is proportionality: that the sentence imposed is commensurate with the seriousness of the offence. As noted above … if the Ward approach is maintained, this necessarily creates the potential for (1) a mentally impaired accused to be acquitted of murder on account of unsoundness of mind, (2) the judge engaging in fact-finding for the purposes of s 50 being unsatisfied on the evidence adduced at trial that the accused had the intention required for murder at all, and (3) the judge nevertheless having to impose a mandatory limiting term of life. …

   Needless to say, this is inconsistent with the principle of proportionality. It also has the potential to reduce the fact-finding process, which is another essential part of sentencing, into a pointless farce. Fact-finding is supposed to promote confidence in the administration of justice because it demonstrates that the individual circumstances of individual cases are weighed and then appropriately expressed in the resulting sentence through the intuitive synthesis of judicial discretion. In the example above, the fact-finding process would do the opposite and instead highlight how the accused did not deserve the outcome imposed upon him or her because the law constrained the exercise of judicial discretion. Parliament can hardly have intended by the enactment of the CLMI Act to bring the administration of justice into disrepute in such a way.

   [59] State's Submissions dated 14 October 2024 [65] - [66].

4. I recognise the force of these submissions, from a general policy perspective. Nevertheless, in the context of discerning and applying the statutory purpose of the CLMI Act a number of points must be recognised.

5. First, as the State readily accepted at the hearing of the application, its emphasis on 'proportionality' in sentencing may be misplaced.[60] While proportionality may have a role to play in the hypothetical sentencing exercise required to set a limiting term under the CLMI Act, it is clear, in my view, that a limiting term should not be equated to a 'sentence'. A custody order involves no element of 'just deserts', nor is it correct to say that a person subject to a custody order is in any way 'deserving' of any period in custody. On the contrary, custody orders are entirely concerned with the protection of the community.

   [60] Ts 64.

6. As I said in Chokolich:[61]

   The CLMI Act, as a whole, has nothing to do with punishment. On the contrary, its paramount consideration is the protection of the community and its objects are to ensure the dignified treatment of persons with mental impairment who come into contact with the justice system and to provide those persons with the best possible treatment, care and support. Not a single principle in the many principles prescribed by s 7 of the CLMI Act involves or contemplates the punishment of a person with a mental impairment.

   This is reflected in the fact that, as I said earlier, there is no minimum term for a custody order under the CLMI Act. Once a custody order is made the order must be reviewed by the Tribunal and is subject to periodic reviews. As noted above, subject to the Tribunal having made a leave of absence order under s 77 of the CLMI Act (which it can do at any time) a custody order may be cancelled by order of the court that made the custody order or by an order of the Tribunal. Whether that occurs is to be determined in accordance with the paramount consideration of the protection of the community and the principles in s 7(2) of the CLMI Act. Punishment, retribution and deterrence have no role to play in such determinations.

   [61] Chokolich [92] - [93] (Quinlan CJ) (footnotes omitted).

7. There is, therefore, a real risk in approaching a limiting term as if it reflected any form of 'just deserts'. A limiting term is not, in any way, a minimum period, nor even an estimate of the period of time that the person subject to a custody order should be detained in custody. A limiting term operates, rather, as a form of 'safety net' or 'check' to ensure that persons the subject of custody orders are not held beyond a certain period of time, without this court having determined, in accordance with the provisions of pt 7 of the CLMI Act, that an extended custody order is required in the interests of community protection.

8. In that context, it must be recognised that the duration of a limiting term is in some respects an imperfect, and somewhat arbitrary, 'safety net', given that it is based upon assumptions that are, necessarily, contrary to the facts concerning the accused person (including the critical assumption that, in setting the limiting term, the court must not take into account the person's mental impairment).

9. So understood, of course, as with every other custody order with a limiting term, the CLMI Act contemplates that a person found not guilty of murder by reason of mental impairment must be detained in custody only for so long as that detention is required for the protection of the community (and no longer). In those circumstances, considerations of 'proportionality' in the sense that that expression is understood in sentencing are not, ultimately, a relevant consideration in relation to whether, and when, a person should be released from a custody order. A limiting term for the duration of a person's life, in particular, provides no indication as to whether, and when, the person subject to the order should in fact be released.

10. Secondly, insofar as a limiting term operates in the context of a custody order, which is made for, and only for, the protection of the community, it is not obvious why, as a matter of statutory purpose, a person found not guilty of murder by reason of mental impairment should not prima facie be subject to a limiting term of the duration of that person's life (regardless of their actual intention). A limiting term only provides an absolute outer limit, within which the person's risk to the community must be the subject of assessment and review. In that regard, where the person's lethal act is the result of a lack of capacity due to a mental impairment, their intention (potentially being the product of a disordered mind), may have little relevance to that person's potential risk to the community.

11. For example, a person who kills another person because they are suffering from a delusion that the person is already dead or a ghost (and so would not have an intention to kill) is not necessarily less of a potential risk to the community than a person who kills another person because they are suffering from a delusion that it is necessary to kill the person because of a divine command to do so (and so would have an intention to kill). The Parliament might well conclude that those persons should be treated in the same way.

12. This is, in fact, what Parliament did in relation to existing custody orders under the CLMI Act. The transitional provisions in the CLMI Act, for example, deem the limiting term for any existing custody order where the person is subject to the order because they were acquitted, on account of unsoundness of mind, of murder or manslaughter, to be the duration of the life of the person.[62] In such a case the court may only set a limiting term that is not for the duration of the life of the person if the court is, in effect, satisfied of the exceptional circumstances that apply to the case of a court sentencing an offender to other than a term of life imprisonment for the offence of murder.[63] That is, the transitional provisions of the CLMI Act make identical provision in relation to persons acquitted of either murder or manslaughter, on account of unsoundness of mind.

    [62] CLMI Act, s 262(1).

    [63] Chokolich [81] - [82] (Quinlan CJ).

13. Nevertheless, as the State pointed out in its submissions, in future cases under the CLMI Act, if the State prefers a charge of manslaughter, rather than murder, and the accused is found not guilty by reason of mental impairment then the limiting term will be set by reference to the sentence that would have been imposed in relation to the offence of manslaughter. The CLMI Act therefore clearly contemplates that in some circumstances (i.e. where the charge is manslaughter) the limiting term for a homicide will be less than the duration of the person's life. To that extent the CLMI Act does not reveal a consistent statutory policy (as between existing custody orders and future custody orders) in its treatment of limiting terms in cases of homicide.

14. It is clear then, that the outcome under the CLMI Act in a particular case may well be affected (and potentially determined) by the charge preferred by the State. It is in that context that the State submits that in those circumstances the law would constrain the exercise of judicial discretion, which it then submits could bring the administration of justice into disrepute.[64] From a general policy perspective, there is much to commend that view. Such a constraining effect on judicial discretion, however, is not unique to the CLMI Act. Indeed, in any case where mandatory sentences apply, the dispositions available to the court may be constrained by the charges preferred by the State (and in some cases significantly so). While that is no doubt a relevant policy consideration for the Parliament, and one in relation to which there might be significant political controversy, it is nevertheless the courts' duty to give effect to such laws according to their terms. It does not provide a reason to give those laws a construction that their text cannot reasonably bear.

    [64] See the submission reproduced at [107] above.

15. The State submitted that the difference in cases involving mandatory sentences is that, in those cases, the accused can litigate any facts that might bear on the mandatory sentence, whereas, under the CLMI Act, if the 'offence' for the purposes of s 50(2)(a) of the CLMI Act is the offence 'charged', the limiting term might be set according to a set of facts that do not reflect the reality experienced by the person the subject of the custody order.

16. That does not, however, reveal an unintended or unforeseen consequence of the CLMI Act. The fact that a limiting term is based on assumed facts that may not reflect the reality of the person the subject of the custody order is not an oversight in the drafting of the CLMI Act. On the contrary, it is an intended feature of the CLMI Act. That is, the entire process of setting a limiting term requires the court to make a number of assumptions (including the assumption that the person does not suffer from a mental impairment) all of which may be contrary to the true state of affairs.

17. Ultimately, in my view, the State's submission that the CLMI Act has by necessary implication overruled Ward v The Queen depends upon what it submits may be inconvenient or unfair consequences of the operation of the CLMI Act in the context of the law as it has been understood and applied in this State since Ward v The Queen. In my view those potential consequences cannot be taken to reveal, by necessary implication, an intention to produce such a significant change to the operation of the insanity defence itself, particularly given that those changes would apply to every charge in which a specific intention is an element. Such a radical change to 'the insanity defence itself, … its operation and procedural requirements',[65] would require clear language in the statutory text; language which is simply absent from the CLMI Act.

    [65] See [91] above.

18. I would also add, as the State accepted, that the capacity for special verdicts in relation to specific facts (in s 113(2) of the Criminal Procedure Act) cannot affect 'the charge' of which the accused is relevantly acquitted, in accordance with s 113(1). That 'charge', consistent with Ward v The Queen, is the 'charge' on the indictment, which in turn identifies the 'offence' for the purposes of s 50(2)(a) of the CLMI Act.

19. For these reasons, the State's application, based on the construction of the CLMI Act, must be dismissed.

20. In that context, the State's third and final basis for its application must also fail. That third basis was that, if the CLMI Act operated in the manner I have described, it could be said that the accused would be deprived of a fair trial. I do not accept that submission. The fact that legislation may contain assumptions, or even presumptions, in relation to issues in a criminal trial is not a basis for concluding that the accused would thereby be deprived of a fair trial. A fair trial is, after all, 'a fair trial in accordance with law'.[66] If the law requires an assumption or presumption to be applied, absent some constitutional challenge, the courts must apply that law. So understood, the right to a fair trial does not provide some overarching basis for not applying legislation according to its terms. As I said in Chokolich, in a different context, it is not for this court to question the legislative policy of the Parliament or to conclude that it would be unjust for the court to perform the very function that the court is required to perform under the CLMI Act.[67]

    [66] Smith v The Queen [2015] HCA 27; (2015) 255 CLR 161 [38] (Gordon J, French CJ, Kiefel, Bell & Gageler JJ agreeing).

    [67] Chokolich [136] (Quinlan CJ).

21. In light of the conclusion that I have reached as to the continued application of Ward v The Queen, as it has been understood and applied, I would make the following three observations.

22. First, the construction of the CLMI Act that I have reached underscores the vital role of the Director of Public Prosecutions in the bringing of criminal charges, and the significant impact that the Director's discretion as to the charges that are brought may have on the outcome of proceedings. It is to be hoped that the proper exercise of prosecutorial discretion will mitigate any potential unfairness that might be visited upon an accused person by the operation of the CLMI Act.

23. Secondly, the potential for a person subject to a custody order to be subject to a lengthy limiting term, including a limiting term for the duration of that person's life, underscores the significant role of the Tribunal in ensuring that persons with a mental impairment should be detained in custody only for so long as that detention is required for the protection of the community (and no longer).

24. Finally, to the extent that, notwithstanding these first two matters, the application of Ward v The Queen leads to inconvenient or unjust results, the authority of Ward v The Queen should be addressed, in an appropriate case, by the Court of Appeal or should otherwise be the subject of legislative amendment by the Parliament.

Outcome for the present case

1. For these reasons, in my view, the State's application must be dismissed.

2. As a consequence, the court hearing Ms McCullock's trial should apply Ward v The Queen in the sense that I have held that it has been understood and applied.

3. That is, the court must determine whether Ms McCullock is criminally responsible for the act that caused Jace's death (in accordance with s 27) before determining the issue as to whether Ms McCullock had the requisite intention for murder. If the court concludes that Ms McCullock was not criminally responsible for the act that caused Jace's death (in accordance with s 27) the appropriate verdict is a verdict of not guilty of murder by reason of mental impairment.

4. In those circumstances it is not necessary, for the purposes of the verdict, for the court to then determine whether it is satisfied beyond reasonable doubt as to whether Ms McCullock intended to cause the death of Jace (s 279(a)) or intended to cause Jace a bodily injury of such a nature as to endanger, or be likely to endanger, Jace's life (s 279(b)).

5. Nevertheless, while it might be strictly unnecessary, it would, in my view, be prudent and appropriate for the court in those circumstances to consider the issue of intention, and to make findings, if it is able to do so, as to whether Ms McCullock had either of the intentions necessary to establish the offence of murder.

6. While the identification of a specific intention can be difficult in cases where the accused was suffering from a mental impairment at the relevant time, there are nevertheless cases in which it is possible to reach a positive conclusion as to intention, notwithstanding that it is the product of a delusion. As Hall J said, in a different context, in The State of Western Australia v Quartermaine:[68]

   A delusional belief that killing is necessary does not mean that the death of the other person is unintended. To the contrary, the death in such a case is intended even though based on a false belief as to the necessity to kill. It was suggested by defence counsel in closing address that an intent must be based on a reasoning process founded on rational beliefs. That is, that an intent to kill based on delusional beliefs is not an intent at all. This cannot be correct as a general statement; it must depend on the nature of the delusions. A drunken person may have an irrational belief that it is necessary to kill another due to duress or extraordinary emergency, but such a belief would not mean that their intent to kill was not real.

   [68] The State of Western Australia v Quartermaine [2020] WASC 458 [193] (Hall J).

7. As I said at [15] above, in the present case the State intends to adduce evidence that, if accepted as reliable evidence as to Ms McCullock's state of mind at the time of the killing, would be able to support a finding that, at that time, Ms McCullock intended to kill Jace (albeit that her intention would have been the result of a delusion caused by her mental impairment).

8. It would be appropriate for the trial judge to make specific findings in relation to those issues in the present case, because those findings may have significant utility in the event that:

   (a)I am wrong in the conclusions I have reached as to the authority of Ward v The Queen or the operation of the CLMI Act; and/or

   (b)an argument is sought to be put to the Court of Appeal that Ward v The Queen ought not be followed.

9. Whether, and if so what, findings are appropriate in those circumstances are, of course, matters for the trial judge.

10. Subject to those observations, the application will be dismissed.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

KT

Principal Associate to the Hon Chief Justice Quinlan

31 OCTOBER 2024