JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MCCULLOCK [No 3] [2024] WASC 469
CORAM: FORRESTER J
HEARD: 12 - 18 NOVEMBER 2024
DELIVERED : 9 DECEMBER 2024
FILE NO/S: INS 49 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
SARA JADE MCCULLOCK
Accused
Catchwords:
Criminal law - Trial by judge alone - Murder - Insanity - Whether accused was mentally impaired - Whether accused deprived of the capacity to know that she ought not to do the act that caused the death of the deceased - Whether accused voluntarily intoxicated - Whether s 27(1) of the Criminal Code (WA) applies
Legislation:
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)
Result:
Accused not guilty of the offence of murder by reason of mental impairment
Category: B
Representation:
Counsel:
| Prosecution | : | Mr B Stanwix SC |
| Accused | : | Ms S Auburn |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | S Auburn |
Cases referred to in decision:
Evans v The State of Western Australia [2010] WASCA 34
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
R v Porter [1933] HCA 1; (1933) 55 CLR 182
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
Stefanski v The State of Western Australia [2022] WASCA 5
The State of Western Australia v Brown [No 3] [2013] WASC 349
The State of Western Australia v Herbert [2017] WASC 101
FORRESTER J:
Introduction
The accused, Sara Jade McCullock, is charged on an indictment dated 24 November 2023 that on or about 26 April 2022 at Madora Bay she murdered Jace Air Martin.
The deceased was the accused's 14‑month‑old child.
On 23 April 2024, I ordered that the accused be tried by judge alone, pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA).[1]
[1] The State of Western Australia v McCullock [2024] WASC 143.
The trial took place before me from 12 to 18 November 2024. The accused pleaded not guilty on account of mental impairment and, in any event, not guilty to the charge of murder.
Pursuant to s 32 of the Evidence Act 1906 (WA), the accused admitted doing the acts which caused the deceased's death.
The State and the accused adduced evidence of a number of witnesses as to the accused's conduct in the days leading up to Jace's death, evidence as to the accused's mental health history, and expert psychiatric evidence as to the accused's state of mind at the time of the killing, going to the issue of whether the accused was deprived of any of the capacities set out in s 27 of the Criminal Code (WA) (Code).
At the conclusion of the trial, both the accused and the State positively submitted that the evidence was such as to establish, on the balance of probabilities, that the accused was deprived of the capacity to know that she ought not do the act or acts which killed her child.
However, the State contended that the accused was voluntarily intoxicated in the weeks leading up to the killing, and that self‑induced intoxication contributed to her mental impairment such that she was not able to rely on s 27(1) of the Code to relieve her of criminal responsibility for the killing.
For the reasons which follow, I find the accused not guilty of murder by reason of mental impairment.
Legal principles
Trial by judge alone
Pursuant to s 119(1) of the CPA, a judge sitting alone must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. The judgment of the judge in a trial by judge alone must include the principles of law that they have applied and the findings of fact upon which they have relied.[2]
General principles
[2] CPA s 120(2).
The accused is presumed to be innocent of the charge. The burden of proving her guilt is on the State. The standard of proof required to be achieved is proof beyond reasonable doubt.
I must not speculate about matters not in evidence or look for theories that are not supported by the evidence. My verdict must be based only on the evidence.
If it is necessary to draw inferences as to essential facts from the evidence, I am not permitted to draw an inference adverse to the accused unless that inference is the only reasonable one open on the evidence.
In the present case, the forensic psychiatrists called by the State and the defence are substantially in agreement in their opinions. While I am not bound to accept and act upon expert evidence, I am not entitled to disregard it capriciously.[3]
[3] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 [124].
In assessing the evidence and reaching a verdict, it is necessary to guard against any feelings of prejudice or sympathy. Such feelings must be put aside, and the issue of whether the accused's guilt has been proved must be determined dispassionately and objectively.
Murder
The elements of the offence of murder are that the accused killed another person, that the killing was unlawful and that, at the time of the killing, the accused had an intention to kill that person or to cause an injury which endangered or was likely to endanger, life.[4]
[4] Code s 279(1).
A person who causes the death of another, either directly or indirectly, is deemed to have killed that other person.[5] It is unlawful to kill any person unless the killing is authorised, justified or excused by law.[6]
[5] Code s 270.
[6] Code s 268.
If it is established that an unlawful killing has occurred, it is ordinarily the case that consideration will then be given to whether the State has proved the accused had the requisite intention for murder. However, where (as in this case) the accused pleads not guilty on account of mental impairment, it is first necessary to consider whether the accused is criminally responsible for the unlawful killing, having regard to s 27 of the Code. It is only if the accused is found to be criminally responsible for the unlawful killing that the question of intention falls to be determined.[7]
[7] Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 [25]; McCullock [130] ‑ [132] (Quinlan CJ).
Accordingly, in this case, before the court is required to consider whether the accused is criminally responsible for the offence, the State is required to prove beyond reasonable doubt the following elements of the offence:
(a)the accused did an act; and
(b)by that act the accused killed the deceased; and
(c)the killing was unlawful.
Insanity
Section 27 of the Code relevantly provides:
(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 the 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.
Every person is presumed to be of sound mind until the contrary is proved.[8] The accused has the onus of proving, on the balance of probabilities, that she is not criminally responsible pursuant to s 27.[9]
[8] Code s 26.
[9] R v Porter [1933] HCA 1; (1933) 55 CLR 182.
Section 1(1) of the Code defines 'mental impairment' as including 'mental illness'. 'Mental illness' is defined as meaning:
[a]n underlying pathological infirmity of the mind, whether of short or long duration, and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.[10]
[10] Code s 1(1).
In The State of Western Australia v Herbert,[11] Jenkins J made the following observations, which I respectfully adopt:
[11] The State of Western Australia v Herbert [2017] WASC 101 [47] ‑ [51].
An 'infirmity of the mind' is a weakness of the mind. The Shorter Oxford Dictionary defines 'pathological' to mean pertaining to or dealing with pathology. In turn, it defines 'pathology' to mean either the science or study of disease; that department of medical science, or of physiology, which treats of the causes and nature of diseases, or abnormal bodily affections or conditions. Thus, an underlying pathological infirmity of the mind is an underlying infirmity of the mind which is related to disease or an abnormal bodily condition.
The definition of 'mental illness' reflects some of the comments made by King CJ in Radford (1985) 20 A Crim R 388, 396 about the meaning of the expression 'disease of the mind' which is used in the common law of insanity. The then Chief Justice of the Supreme Court of South Australia said:
(1) 'disease of the mind' is synonymous with 'mental illness';
(2) a temporary disorder or disturbance of an otherwise healthy mind caused by external factors is not properly regarded as a disease of the mind;
(3)major mental illness or psychoses such as schizophrenia are clearly diseases of the mind as are physical diseases, such as psychomotor epilepsy and arteriosclerosis, when they affect the soundness of the mental faculties;
(4)disease of the mind is to be distinguished from 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control and impulsiveness'; and
(5) in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called '"defect of reason" in the M'Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli'.
In R v Falconer [1990] HCA 49; (1990) 171 CLR 30, the High Court generally approved of King CJ's comments even in the context of the then Criminal Code provisions.
When Falconer was decided, the Code s 27 was differently worded. Section 27 was amended and the definition of mental impairment was inserted after Falconer was delivered. The subsequent amendments to the Code are consistent with King CJ's statement of principles in Radford, although the Code definition of 'mental impairment' is broader than that of 'disease of the mind' which was considered by King CJ. Nevertheless, acute intoxication with alcohol and/or drugs is not a 'mental impairment'.
What is a mental illness is a question of law for the judge. Whether or not the facts disclose a state of mental illness is a question for the decider of fact.
Capacity
The accused denies criminal responsibility for the killing on the basis that, at the time it was committed, she was in such a state of mental impairment as to be deprived of the capacity to know that she ought not to do the act which caused the death.
Capacity to know that she ought not do the act
In Evans v The State of Western Australia,[12] McLure P considered the meaning of the capacity on the part of an accused to know that she ought not do the act, by reference to one of the common law requirements in insanity cases; that the accused be deprived of the ability to know that the act was wrong. Her Honour observed that there was 'no suggestion of any material distinction between the common law and s 27 on this point'.[13]
[12] Evans v The State of Western Australia [2010] WASCA 34.
[13] Evans [31].
Having so found, McLure P referred to the statement of Dixon J in R v Porter as giving the 'clearest explanation of the principles' as to the capacity to know that the act was wrong:
Then I have used the expression 'know,' 'knew that what he was doing was wrong.' We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a reasonable person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged.[14]
[14] R v Porter (189 ‑ 190); Evans [28].
McLure P referred to the decision of the High Court in Stapleton v The Queen[15] in which the High Court held that the requirement is not that the accused knew the act was wrong according to law,[16] and said:[17]
[T]he 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.
[15] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358.
[16] Stapleton [29] ‑ [30].
[17] Evans [31].
Also in Evans, of the capacity to know whether the act was wrong, Wheeler JA (with whom Owen JA agreed) said:
[T]he 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.[18]
[18] Evans [60].
I warn myself that it is dangerous to test the accused's knowledge by the standards appropriate in judging the conduct of a sane person.[19]
Intoxication and stupefaction
[19] Evans [33].
Section 28 of the Code relevantly provides:
(1)Section 27 applies to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means.
(2)Section 27 does not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not.
In The State of Western Australia v Herbert, Jenkins J considered the meaning of 'intoxication' in s 28(1) and said:[20]
[20] Herbert [58].
[T]he Macquarie Dictionary defines 'intoxication' as including:
1.inebriation; drunkenness;
2. Pathol. Poisoning;
3. the act of intoxicating; and
4.overpowering action or effect upon the mind.
The Shorter Oxford Dictionary defines 'intoxication' as including:
1. The action of poisoning; the state of being poisoned; an instance of this.
2. The action of stupefying with a drug or alcoholic liquor; the making drunk or inebriated; the condition of being so stupefied or made drunk.
3. fig.
(a) The poisoning of the moral or mental faculties; a cause of this.
(b) The action or power of highly exciting the mind; elation beyond the bounds of sobriety.
…
In my view, the most appropriate definition of 'intoxication' is 'overpowering action or effect on the mind'.
'Intoxicated' has the related meaning: a person is intoxicated if a drug or alcohol is having an overpowering action or effect on the mind.
The Macquarie Dictionary relevantly defines 'stupefy' as:
to put into a state of stupor; dull the faculties of.
The word 'stupor' is defined as:
Suspension or great diminution of sensibility, as in disease or as caused by narcotics, intoxicants, etc.
The Oxford English Dictionary defines the term 'stupefy' as:
to cause loss of physical sensation in (a part of the body); to dull or deaden (the nerves, senses, etc.) (obsolete);
To dull or deaden (the intellect, emotions, etc.); to make (a person) mentally, spiritually, or emotionally dull, numb, or apathetic
How does intentional intoxication or stupefaction affect the application of s 27 of the Code?
In Stefanski v The State of Western Australia,[21] Buss P held that:
[I]n the case of an accused who intentionally caused himself or herself to become intoxicated, the accused may rely upon the excuse in s 27(1) if the accused can prove that it was a 'mental impairment' (as defined in s 1(1)), independently of and without regard to the intoxication, which caused the accused to be deprived of a relevant capacity (referred to in s 27(1)).
No doubt, it may be difficult for an accused, in a particular case, to prove, on the balance of probabilities, that it was a 'mental impairment', as defined in s 1(1), independently of and without regard to intoxication or stupefaction, which caused the accused to be deprived of at least one of the capacities referred to in s 27(1). When that issue arises it will be necessary for findings of fact to be made having regard to the expert psychiatric and other medical evidence that is before the fact finding tribunal. It may or may not be possible, in a particular case, to disentangle the impact of mental impairment from the impact of intoxication or stupefaction. However, any difficulty in that regard, which arises from the accused having intentionally caused himself or herself to become intoxicated or stupefied, cannot affect the proper construction of s 28(2) having regard to its text, context and purpose.[22]
[21] Stefanski v The State of Western Australia [2022] WASCA 5.
[22] Stefanski [158].
Mazza JA[23] and Beech JA[24] agreed with Buss P as to the construction of s 28(2).
[23] Stefanski [200], [202].
[24] Stefanski [221].
Admissions
Pursuant to s 32 of the Evidence Act, the accused made admissions in the following terms:
(1)Jace Air Martin died on or about 26 April 2022.
(2)Jace Air Martin died as a result of head injuries.
(3)I did the acts which caused Jace Air Martin's death by striking his head on the ground.
It was unnecessary for the State to lead additional evidence in proof of the matters admitted, and I am entitled to accept the admissions as proof beyond reasonable doubt of those matters.[25]
[25] Evidence Act s 32.
Prosecution case
The prosecution case was that on or about 26 April 2022, the accused killed her son, Jace Air Martin, at the home the accused was then sharing with her mother in Madora Bay. In these reasons, I will refer to the event which resulted in Jace's death as 'the incident'.
A number of witness statements were read into evidence by consent, with some redactions, either by agreement or as a result of a ruling by me in the course of the trial. There is no reason not to accept the contents of those witness statements. As the evidence in this regard was non‑contentious, I propose to set out the narrative established by it rather than the evidence by witness.
Background
The accused was born on 13 July 1993 and at the time of the incident was 28 years of age. The accused's mother's name is Patricia and her sister's name is Tina. I mean no disrespect to either by using their first names.
In her mid to late teens, the accused lived on the east coast of Australia. She first used cannabis when she was 13 years old, and used it to a varying extent throughout her teens. She experienced a traumatic event in her mid‑teens.
In around 2018, the accused was admitted to hospital in New South Wales suffering from psychosis. Medical professionals were not certain at that time what caused the psychotic episode, as the accused was using drugs including, for a brief period, methylamphetamine.
As time went on, the accused had other mental health episodes, and eventually entered drug rehabilitation in New South Wales for six months.
After rehabilitation, the accused was released to the home Tina and Patricia were then sharing in the Northern Territory. Both Patricia and Tina were aware that the accused had been previously diagnosed with psychosis.
Tina observed that the accused listened to techno music, mainly by Crisis Era. When the accused was in a manic state, she would obsess about it and play it louder. She would dance around and continually laugh and giggle to herself.
The accused had also spoken with Tina about hearing voices in the past but she did not seem to like talking about what happened when she was unwell.
When she moved to the Northern Territory, the accused seemed in a much better place and Tina believed the accused was taking her medication.
Aaron Martin, the deceased's father, first met the accused in March 2020. On that occasion, she was obviously intoxicated. After that, they started communicating, then catching up and eventually formed an intimate relationship. Mr Martin observed the accused to use cannabis and alcohol on occasions after the day they met. Shortly after they commenced their relationship, he moved into the house the accused was sharing with Patricia and Tina.
In the course of their relationship, the accused told Mr Martin that she got voices inside her head, and that when she was 'high' on drugs she could talk to dragons. He sometimes noticed that the accused would be 'off in her own world and doing her own thing', like he was not even there. She talked to herself sometimes too.
Mr Martin also observed the accused to be obsessed with Crisis Era and a DJ who was part of that band, named Silas. He said the accused would only listen to that style of music and would have it on very loud, and louder when she was drinking or on drugs.
Mr Martin observed the accused after she smoked cannabis and drank alcohol. He said that, when she was 'stoned', she would on occasions be mellow and zoned out, but on other occasions she would be fired up and verbally aggressive. Mr Martin also formed the view that alcohol did not mix well with the accused, and she would become very verbally aggressive.
Mr Martin's father, Kelly White, observed the accused to smoke cannabis during the time he knew her in the Northern Territory. He observed that after doing so, 'her personality changed significantly and she became totally disengaged'.
Kirsty White is Aaron Martin's sister. She met the accused through Mr Martin in mid‑2020. She noticed that the accused 'would talk and whisper to herself quite a lot' and would regularly play the same sort of loud music.
About six weeks into the relationship, the accused became pregnant with Mr Martin's child. This was unplanned, but the accused was insistent on keeping the child.
According to Mr Martin, the accused continued to smoke cannabis while she was pregnant, one to two times a week. Eventually this resulted in Mr Martin and the accused having to leave the house in which they were living and find their own accommodation.
Tina and Patricia moved to Western Australia in December 2020.
The accused gave birth to Jace on 28 February 2021 without complication. When she was released from hospital, the accused, Mr Martin and Jace returned to Tennant Creek to live. The accused breastfed Jace, who was a good baby but woke up a lot in the night, which on occasions made the accused frustrated and angry, but she never hurt or threatened Jace.
The accused's relationship with Mr Martin started to deteriorate. They tried counselling. The accused asked the counsellor for a prescription for medicinal marijuana but the counsellor was unable to assist and the accused stopped going after that. The accused and Mr Martin argued more often. When Jace was about three or four months old, the accused asked Mr Martin to move out of the house, and he did.
About a month later, the accused called Mr Martin over and told him that she had started hearing voices and needed his help to look after Jace so she could sleep. He let her sleep for a while but then had to leave.
Later that day, the accused went to have lunch with Kirsty White. When Ms White arrived, the accused was already drinking, and had loud music playing. During the afternoon, Ms White assisted with feeding Jace and looking after him. The accused continued to drink and was becoming quite intoxicated. Ms White had to leave, and did so.
About 20 minutes later, someone from the venue called Ms White and asked her to come back. Ms White returned, and observed the accused to look agitated. The accused abused her but then would change her demeanour. Ms White called her brother and then the police. The accused continued to play her music loudly and was yelling and swearing at people nearby.
When Mr Martin arrived the accused was visibly intoxicated, screaming and yelling abuse. When Mr Martin tried to take Jace, the accused punched Mr Martin in the head. When Ms White picked Jace up from the pram, the accused lunged at her and punched her in the head, just missing Jace. When the police arrived, the accused started crying and told them that Ms White had tried to take her baby.
Shortly after this, the accused was taken to Alice Springs Hospital for mental health treatment. When she came out of hospital, Mr Martin thought she seemed to be in a much better head space and seemed much less energetic. Mr Martin said she did start smoking cannabis again. Mr Martin later understood the accused changed her medication, and she appeared 'much more up and about'.
In around September 2021, a couple of weeks after the accused was released from Alice Springs Hospital, she moved to Western Australia to live with Tina and her mother. They were aware generally of the fact that she had been mentally unwell while in the Northern Territory.
After the accused moved to Western Australia, Patricia and Tina thought she seemed good. According to Tina, the accused 'seemed to be doing really well'. The accused liked to keep to herself, and did not have many friends. She did not go out much but did take Jace to swimming lessons and the library. She relied on Centrelink and lived rent free with her mother and Tina, spending her money on Jace and was a 'terrific mum'.
The accused told Tina the medication had been making her feel drowsy, and she did not feel like she needed to take it. The accused's mother was aware that the accused was not taking her prescribed medication.
A couple of weeks before the incident, Tina moved out of the home.
In the days leading up to the incident, Patricia noticed a decline in the behaviour of the accused. She noticed the accused laughing to herself, dancing in the street and playing loud music.
23 April 2022
On Saturday, 23 April 2022, the accused's neighbour, Stanley Grostate, went to give the accused an Easter egg for Jace. Prior to that he had not had much to do with the accused. The accused said her mother and son were asleep, so Mr Grostate invited her over to his house. This was at around 2.00 pm.
While the accused was at Mr Grostate's house, she asked if she could have the wine that was in the fridge, and he let her. He did not know how much of it she drank.
The accused was turning the music up in Mr Grostate's house. Another neighbour, Belinda Saggers, came over to ask that it be turned down. Ms Saggers had never seen the accused before that night. When she asked for the music to be turned down, the accused started hissing at her, and then yelling at her. Ms Saggers described the accused as storming at her, in a really aggressive manner. Mr Grostate held her back. Ms Saggers immediately ran home.
The accused then started vomiting and Mr Grostate asked her to leave. At this, the accused slapped him to the face, causing him to fall. The accused then started punching him in the back of the head, about 20 times. Mr Grostate ran to the accused's house and sought help from Patricia, who came and took the accused home.
Patricia called her daughter, Tina. Tina came over and spoke with the accused. The accused had a strong smell of alcohol on her breath. The accused said, 'I have done nothing wrong' and things like that. There were no raised voices or aggression during the conversation. Tina told the accused to go have a shower and she did. Patricia and Tina later noticed the accused had vomited in the bathroom. After her shower, the accused went to bed.
It was after this that Tina observed a noticeable change in the accused's mental health.
24 April 2022
On 24 April 2022, Patricia and the accused took Jace to the park for around an hour. The accused brought along three alcoholic beverages and drank one of them, a beer. Patricia called Tina to join them as she did not want the accused to get drunk. Tina observed that the accused seemed 'hungover and sluggish'.
All four of them left the park around 5.00 pm. Patricia dropped the accused and Jace at home before going to stay at Tina's house. Patricia described the accused as seeming 'pretty tired from the alcohol'.
Katrina Murray lived across the road from the accused. She first noticed the accused on the weekend of 23 ‑ 24 April 2022. On one of the days, the accused was in the front yard of Ms Murray's house talking to Ms Murray's son and his friend. Ms Murray called the children inside and the accused went away but she came back.
25 April 2022
Jessica Redford was in McDonalds Lakelands on 25 April 2022 when she saw a woman sitting on the floor near the counter. She had a young child with her. The woman said she was okay, but she did not seem right. She said her boy was named 'Jace'. When Ms Redford asked her if she was getting food, the woman gave Ms Redford her bank card and asked her to order. It is common ground this was the accused.
Staff tried to get the accused off the floor, and she was moved to a table nearby. The accused spoke about a brother who was locked up and she got a bit angry about the shops being closed. She took a long time to answer Ms Redford and was very 'spacey'. Ms Redford asked her several times what she was doing for the rest of the day but she did not answer. Eventually, the accused said, 'I'm trying to understand. You've asked me three times.' The accused also told Ms Redford she was going to get some alcohol later.
Constable Hart was on duty with Senior Constable Clugston on 25 April 2022 when they were called to the McDonalds as a result of the accused's conduct. The accused was sitting with Ms Redford when PC Hart arrived. He went to speak with Ms Redford while SC Clugston spoke with the accused.
A recording from the body worn camera of SC Clugston was played. It shows the accused to be apparently cheerful but somewhat indignant about her treatment by the McDonalds staff. She said they failed to clean up a hazard so she sat on the floor, which her son preferred. During the course of the conversation, the accused said, 'hashtag free willy' and when asked what she was speaking about said it was about a person, who she called her brother, who she said was in gaol because he was caught with methylamphetamine. However, she also said he was a friend of a friend and that she did not know his name.
When he returned from speaking with Ms Redford, PC Hart spoke with the accused. His body worn camera captured him asking the accused if she was still on medication, and she said she had completed it and was healed. She said she had been to rehabilitation and was living with her mother who was alcohol and 'definitely drug free'. She gave them her mother's contact details. They contacted her mother and spoke with her. They then spoke with the accused again. She said she had three VB's the afternoon before. They checked with the accused that she was leaving. They watched her leave and then returned to their patrol duties.
After the police called her, Patricia went straight home. When she asked the accused what had happened, the accused said, '[t]here was no incident, I was just sitting on the floor with Jace, they told me I was in the way' and that she did not think it was a big deal.
Patricia also noticed the accused had brought home a Coles trolley. It had a big green dinosaur inside, and the accused was pushing it around on the street outside. When Patricia asked why she was doing that, the accused said she had 'just felt like it'. To Patricia, this was similar behaviour to the previous times the accused had been unwell.
The accused then stayed home and played music. She was dancing around the backyard and smoking. Patricia went back to bed.
At some point, the accused went to Mr Grostate's house and spoke to him. She seemed to him to be a 'bit jittery' and her hands were both shaking. He let her in his house to light her cigarette and then she left.
In the evening, a number of witnesses saw the accused lying on the driveway of the house next door with Jace lying on top of her. Matthew Fraser went outside and spoke to her. Others went over too.
Mr Fraser said the accused was not making any sense and was giggling and switching emotions. Mr Fraser described it as being like the accused was on another planet. He assumed she had been using drugs. The accused waved her hand slowly through the air towards his face and it looked as if she was trying to see if he was real.
Another neighbour, Graham Hibbs, said the accused appeared to be 'in another planet' and would close her eyes and giggle before opening them.
Sonya Hibbs said the accused's eyes were open and she was staring at the sky in silence. Jace was lying on her legs. Ms Hibbs went back inside and got a blanket for Jace. The accused was still lying there, not saying anything. She said her name was Sara. Suddenly, she got up and started laughing. Ms Hibbs went to see if anyone was home next door but there was no answer. When she came back the accused was standing up, still silent. She had no emotion in her eyes and would randomly giggle to herself or smile.
Mr Hibbs and Mr Fraser then went to get Patricia, who had been asleep. They explained they had found the accused and Jace on the driveway. When they went back to the accused, she was smiling and laughing but her face was blank. Patricia walked the accused and Jace back to her house.
Mr and Ms Hibbs went home and went to sleep, but at about 10.30 pm they heard whistling and the accused knocked on their door. The accused was acting really strangely and was holding toys. She said she had a present for them. They told her not to worry about that, and Mr Hibbs took her back to her house.
26 April 2022
At about midday on 26 April 2022, Mr Hibbs went to the accused's house and knocked. The accused came to the door and he asked her how she was and she said she was good. She was smiling.
At about 2.00 pm, the accused was seen pushing Jace in a pram in the pouring rain.
Between 2.00 pm and 2.30 pm, the accused went to a restaurant in the Lakelands Shopping Centre. According to the manager, the accused had been in on a fairly regular basis for several months and always came in with her young son. On this day, she also had a small dog with her. As there were not many customers, the manager let the accused and the dog stay.
Another customer was in the restaurant when the accused arrived with her baby. To her, the accused appeared a bit disorientated.
The accused ordered a bottle of red wine and then a bottle of white wine. The manager brought two wine bottles and two large wine glasses to the table. The accused filled both glasses to the brim, one with red wine and one with white wine, and tried to drink from them both at the same time. Then she put down the glass of red wine and sculled the glass of white wine. She then vomited.
The accused seemed unconcerned by what Jace was doing. She was smiling the whole time but did not appear engaged. The other customer, who had some experience with people who had mental health issues, described the accused as appearing to be in a 'disassociated state' and formed the view that she was under the influence of a substance or very mentally unwell.
About five to 10 minutes later, the accused went to the counter to pay and bought some water and a soft drink. She was laughing in a happy way to herself, but the manager could not see what she was laughing at. The accused did not appear to be drunk and most of the contents of the bottles of wine were left at the table.
At some time between 3.30 pm and 4.00 pm, the accused was in the alfresco area with a pushchair and a dog. It was raining outside and the accused was chasing the dog. A staff member recognised the accused as a customer who had attended many times in the previous five months, usually alone. The staff member had served the accused alcohol many times. However, the staff member had not seen her in the restaurant for the previous two months. The accused had left by 4.10 pm, and apparently made her way home.
At around 5.00 pm to 6.00 pm, Patricia and Tina arrived at the house. When Patricia entered, Jace ran over from his play area in the lounge room. He was laughing and giggling and 'seemed like his normal happy self'. Patricia and Tina looked after Jace while the accused showered for around 10 minutes.
When the accused came out, she spoke with Tina about taking her medication again. Patricia had made a doctor's appointment for the accused that day, but the accused had not attended. Patricia had therefore re‑booked the next available appointment, which was for Thursday, 28 April 2022.
At this point, the accused seemed 'really good' to Tina. She was lucid, and not playing any music. Tina offered to take the accused to the hospital to get her medication, but the accused said she did not want to go. Tina persisted, but the accused said she was tired and she wanted to go in the morning.
Patricia tidied up, and a short time later the accused said she was going to bed. Tina observed the accused went to change Jace and then fed him. The accused made herself tea and Jace went to sleep in the accused's arms.
Tina said they would pick up the accused in the morning. Tina asked the accused if she was ok, to which the accused replied '[y]eah, I am just tired'.
Tina then told the accused that she and her mother were going to leave. The accused said goodnight to her mother, and Patricia gave her a kiss and told her she loved her. The accused told her mother she loved her.
Patricia and Tina left at about 7.30 pm to 8.30 pm.
Ms Saggers, the neighbour, said that at about 8.00 pm, she heard really loud bangs coming from what sounded like next door, like someone banging on the fence. It happened three times, each about a minute apart.
Mr Grostate did not go to bed until about 2.00 am on 27 April. He was woken at about 3.30 am by doors banging, and could hear a female voice, which he recognised as that of the accused, yelling, 'mum, mum, mum'. He also heard a knock on his door at about 4.30 am but he did not get up to answer it as he thought it might be the accused.
At about 4.00 am, Mr Hibbs was woken by banging coming from the accused's house, like doors slamming and banging on walls. He could hear a woman screaming, sounding angry. A short time later the police knocked on his door.
Between 4.00 am and 4.30 am, Mr Fraser was woken by the sound of screaming. He looked out the window and saw the lights were on in the accused's house. He could see through the front door and all the way to the back of the house. The accused came to the front door and screamed into the front yard at what seemed to be the top of her voice. She was groaning deeply but not forming any actual words. She then slammed the front door and walked to the back of the house, still screaming and slamming doors. She went to the front door, screamed, slammed the door, and then did the same at the back door, four to five times. He then saw her carrying what appeared to be the baby. She stopped screaming and slamming doors and it all went quiet. About 20 minutes later, the police arrived.
Katrina Murray was also woken up. She looked out of her window and could see the accused through the front door glass panel. The accused was screaming and pacing around the house. She started coming out of the front door and slamming the door. Ms Murray called the police at 4.44 am.
Ms Murray said that initially, the accused was not holding a baby, but after she hung up the phone she could see the accused holding a baby in what appeared to be a normal way. The baby looked okay. Ms Murray then heard screaming a few more times before it went quiet. The police then turned up.
First responders
Senior Constable Jolly was on duty with Constable Gardiner on 27 April 2022 when they were called to attend the accused's house in relation to the disturbance at about 4.50 am. They arrived at the same time as Constable D'Ettorre and Constable Firth. As they approached the house they could hear loud music playing. Lights were on inside. PC Gardiner banged on the door. He saw the accused come out of a room. She was holding a baby in her arms and was laughing and appeared to be talking to someone. She appeared oblivious to his further knocking and went back into the room she had come from.
They decided to enter. PC Gardiner went in first, followed by PC Firth and PC D'Ettorre, then SC Jolly entered. The music was extremely loud.
PC Gardiner started to search the house. As he walked, he saw blood on the floor. He could hear a woman talking and laughing. The accused then came out of the room. She had Jace in her arms. He was dressed only in a nappy and had extensive bruising and smears of blood on his body and face. His eyes were closed and a lolly snake was protruding from his mouth. PC Gardiner asked what happened, and she said, 'he's all right'.
PC Gardiner touched Jace and could tell he was 'not in a good way'. He called for the others to call paramedics. The accused continued to cradle and rock Jace and kept saying that everything was fine and 'he's okay'.
The accused was looking at police and laughing in a forced fake way. PC Gardiner tried to get the accused to hand Jace to him but she said she just had to grab one thing, and walked away down the hall. PC D'Ettorre maintained contact with the accused. The accused went to the playroom and grabbed a white handbag. She went to reach inside it but PC D'Ettorre stopped her and took the bag. There was broken glass in it in a clip seal bag. When PC D'Ettorre asked what the accused was showing her, she did not reply and stared at PC D'Ettorre blankly.
PC Gardiner again asked the accused for the baby. The accused said Jace was very sore; 'someone came in last night'. PC Gardiner took Jace from the accused. He knew Jace was deceased, but he handed Jace to SC Jolly who commenced resuscitation attempts. An officer turned the music off.
SC Jolly observed the accused to be giggling and covering her face with her top. She did not display any sadness. SC Jolly said that the accused was unable to communicate properly and was not making sense. She kept jumping from topic to topic.
PC D'Ettorre described the accused's demeanour as 'an unusual response to what we were confronted with'.
PC D'Ettorre later turned off two burners on the gas stove which were burning when they arrived.
Body worn camera recording of Constable Firth
Constable Firth's body worn camera footage was played.
The accused was wearing a light coloured top which appeared to have a significant amount of dried blood on the front, which looked soaked in and was going brown. She was permitted to put on a dark hoodie. There was blood on the floor. While the others performed CPR on Jace, she sat in a chair nearby.
PC Firth asked her what had happened, without cautioning her. She said, '[a]ll of a sudden someone burst in … and slammed him on the ground.' She said she did not have a phone. She said there was no one else in the house that she knew of. PC Firth confirmed this and she said, '[n]o. Not that I know of. Cause I've been trying to protect him, you know, with all of my life.' She was panting while she said this.
He asked for her details and she said '[y]ou know what it's like? Like, when you got a little baby, you can't do anything, you know? What are you going to do?' She sounded like she had an American or Canadian accent.
PC Firth asked for her details again and she gave them. She was talking about losing her phone, and not having the pin for her sister's phone. She was unsure about her own phone number but gave her mother's. She was distressed and said she was 'really struggling' for comprehension. She asked for a juice but PC Firth refused and told her to have a drink of water.
The accused said that her mother and sister had just left. When asked when exactly that was, she said that it was 'around six or seven thirty in the pm yesterday afternoon'. When giving her mother's details, she was whispering and at times incoherent. She was occasionally looking towards the officers resuscitating Jace with limited emotion, but then at one point said, '[c]'mon boy, boy, boy'. She kept forcing coughs and breathing strangely. She appeared dazed.
PC Firth asked the accused if she was on any medication or had taken any drugs or alcohol and she said she had not had drugs or medication but had had a glass of wine the night before, smoked cigarettes and occasionally had a nicotine tablet.
PC Firth asked what happened and the accused said, while breathing quickly, 'I'm very vague but as I said somebody came in and I didn't know what to do and he got smashed and I just didn't … was just trying to protect him all the time.'
The ambulance then arrived so PC Firth took the accused into another room. She asked if Jace was going to be okay, and PC Firth said they did not know. The accused lay on the floor and stretched, moving her arms and legs out wide. PC Firth asked her to sit up but she stretched her hands and fingers to the ceiling and laughed. She asked him for help but then sat up and got up on her own. She used some lip balm. When PC Firth asked her to come back into the main room, she slowly did as he asked.
The accused put a cigarette in her mouth and sat there. She was swaying slightly. It appeared she was going to eat the cigarette so he told her to take it out and she did. She was moving her eyes rapidly and forcing herself to cough. When he asked her to cover her mouth, she eventually did so and then put the cigarette back in her mouth. She appeared sleepy.
When asked for Jace's details she covered her mouth and gave them. She was asked to put a mask on and did so. She gave Jace's father's details.
When SC Jolly asked her what happened, she said:
I was here and my mother and my sister went out for the night, and we stayed here and then somebody just came in and tried to take Jace and he dropped on the ground.
SC Jolly asked who came in, and she said she did not know; she did not know what they looked like. It was just her and Jace who were there when the person came in. She was asked about a mobile phone and she said she had never seen it before, and said:
No, it's probably would have something to do with helping you find the culprit, because, I – I don't know. I've not seen that phone before. Like I said, it was on the lounge, and I tried to use it to call somebody to help, but I didn't know the pass code for it.
The accused quietly asked for some hand sanitiser but was refused.
When PC Firth asked about the other person again, and whether they were male or female, she said she did not recognise them at all, and she did not know if they were male or female. She said she was sorry that she could not cooperate more.
After a few moments of silence, the accused looked up and PC Firth asked her if she was okay. She responded, 'I have lots of hope for Jace.' When asked what she had said, she said the same thing again.
The accused said she had had an argument with her mother who wanted her to move out. At that point PC Firth cautioned her. The accused said she understood. PC Firth then questioned her more about the argument, and the accused said it was more of a discussion about her mother wanting to take her to the hospital. She said she was terrified of the hospital. She said they had wanted to take her to the hospital because she had started drinking and she needed her medication for her psychosis; she had pretty bad psychosis.
PC Firth again asked what happened, and she said:
I was just cradling my baby. And then I laid down, and I felt like just immense pain and then all of a sudden I just woke up and the reality dawned upon me I just screamed and I screamed and I screamed. And then you guys finally came.
When PC Firth asked if anything happened before she lay down, she said:
I went to the pub, because I saw it in my mind somewhere that I – my psychosis, I thought I had a friend somewhere who nearly passed away, or something like that. So I went to the Sar's bar across the road … with the baby and my dog. And on the way – I'm a little bit of a weird child. Like, I pick up little things and put them in my mouth, and stuff like that. Stupid habit. But I found this little green berry, and it was like, it looked like a bit of a flower bud, but it looked really beautiful. Anyway, I picked it up and I popped it in my mouth and I was chomping on it. And then I felt really drugged during - I felt like it had a lot of drugs in it.
…
It was an accident. And I accidentally – I think I accidentally took the drugs. But then, so I went to the bar still after that and I had one glass of wine but I sculled it, because I'm like a little bit, like patriotic, I suppose. I'm a bit of an idiot. But so I sculled it and actually lucky I did do that because then I instantly just threw up that berry.
The accused said that she then came home and everything was fine and she had discussion with her sister about going to the hospital. She said she did not want to go because she thought her psychosis would be so bad because of accidentally drugging herself and that she had organised for them to come back in the morning.
When asked what happened after they left, she said she thought maybe she should have gone to the hospital. At her best guess the drug she had taken was very strong acid.
At this point the accused was arrested by Sergeant Saxby. Sgt Saxby told her Jace was deceased. The accused nodded and showed little reaction. Sgt Saxby cautioned her again. The accused said she did not know if she had any injuries. She started walking gingerly and, as she did so, started to cry, in a forced way.
Body worn camera recording of Sergeant Saxby
When Sgt Saxby escorted the accused out of the house, the accused became distressed and started whimpering. However, they managed to calm her down. Occasionally she started to cry again but she stopped when they spoke to her. As she was awkwardly put in the rear of the security pod, she laughed.
Medical evidence
Dr Victoria Kueppers
Dr Kueppers was called to give evidence by the State. She gave evidence of the large number of injuries she observed during the post‑mortem examination of the deceased.
The examination revealed that Jace was a normally developed toddler, who had multiple injuries including a severe injury to his head, with bruising and abrasion to the face and scalp, multi-focal skull and facial bone fractures, and traumatic brain injury. There was also bruising to his upper limbs and torso, and multiple posterior rib fractures. His left clavicle was also fractured. His cause of death was determined to be head injury.
The head injuries were very significant. They were of a kind and severity Dr Kueppers has previously seen in children run over by a car. While Dr Kueppers could not say how many applications of force were applied to the deceased's head, she was of the view that it was more than one, and the applications were all of similar force.
Dr Kueppers was unable to be more specific as to a potential cause of the principal injuries, except that they were likely caused by impact with a broad surface rather than an implement, with blunt force trauma also applied to his face.
Investigation
Detective Sergeant Matthew Long was the investigating officer. Some photographs of the scene were tendered through him. He gave evidence that the accused's mobile phone was located and downloaded, which contained two very brief video files taken on 23 April 2022, one at 12:37:25 and the second at 12:38:33.
The first video file shows the hand of a person holding a small brown glass bottle and pouring some of the contents of the bottle into a glass already containing a small amount of what appears to be juice of some kind. The liquid being poured into the glass is clear and appears to be oily in consistency. A dropper is lying on the bench next to the glass. The bench shown appears to be the kitchen bench at the accused's house.
The second video file is of what appears to be the same glass, empty but for residue on the side of the glass, as if the liquid previously in it had been consumed.
ChemCentre toxicology report
Tests on blood samples taken from the accused at 2.50 pm on 27 April 2022 detected cotinine but no other drugs. Cotinine is a metabolite of nicotine.
Prosecution evidence as to the accused's mental state
The accused was admitted to Rockingham Hospital and then transferred to the Frankland Centre.
Dr Rachael Griffiths
Dr Griffiths was a consultant forensic psychiatrist at the Frankland Centre. She saw the accused there and prepared a report for the Magistrates Court dated 6 May 2022. The State called her to give evidence at the trial.
The accused was interviewed by Dr Griffiths and a colleague on 2 May 2022. Dr Griffiths recorded the accused as having said the following:
Things were really good in WA until she stopped sleeping, drank some alcohol and drank some THC oil. Said she used to get high. 'I just wanted something fun.' Bought it online. Used approximately three weeks ago. Used 100ml bottle in five days. Ordered a second bottle and drank half in one day. Said it made her psychotic. Caused her to hear voices and felt like she had friends in the voices. Heard them approximately two weeks ago.
Dr Griffiths also gave evidence as to other things said by the accused, which can be summarised as follows.
When she was in a good mood, she heard the voice of an imaginary person she loves, who is based on a real person, 'Silas', a member of the band Crisis Era. She had met him once at a show in Sydney. His voice told her she was beautiful and he was really scientific, and she loves science, so they had fun.
When her mood was not good, the voices said it was all a trick and the world was actually dying. They were planning to put her in a mood to kill her. She did not know who they are but thought they might be aliens from another world. Those voices started about three to four years before the voice of Silas.
The voices became worse when she did not sleep, and her sleep deteriorated when she talked to Silas more often. She did not want to sleep because they were having too much fun. She had three cans of beer in one night and went to the neighbours and drank wine there; was 'skolling it', 'just to show off I guess'.
The accused said her mother was a 'micromanager' which can be stressful and recounted having a fight about her care of Jace, after which they made up.
When she was 14, a man had lived at the house where the accused lived, and had given her drugs.
The accused said that her mother had stayed with her sister because she could not put up with the accused having a psychotic episode. The accused was very happy and giggling and doing weird things, like brushing an olive tree with a feather. The trees liked it. The giggling was due to random conversations with Silas, who is the richest person on the planet. The accused said Silas could have been Jace's father.
The accused believed that in the past week Silas had taken control over the left side of her body remotely. This only lasted a day 'until the shit broke'.
Silas owned the planet because of all the technology; really advanced computers in a series that could infinitely multiply his intelligence by putting his brain power in others. She was his partner and they were in love. He would use the accused's ideas to improve his technology.
Silas loved Jace and talked to the accused about Jace.
The accused said she took medication for a while after she was discharged from hospital in Alice Springs. She said it made her lazy and hungry. She went to a doctor and asked for different medication. She had not had any since her move to Western Australia. She was aware she had schizophrenia.
Her mood was really good in the lead up to the incident. She thought she was 'making amazing bounds with my mental health. I actually enjoyed everything'. Then she ate something off the ground as she walked to the shop and everything changed. It looked like a perfect flower and was bright green. She ate it because she thought it was a gift from God for her. She thought it had acid in it because she started hallucinating 'really bad':
There was no Silas and it was all the badness cursing me because it was my fault that aliens had taken over and everyone was dying and suffering from extreme torture and they finally figured out how to get inside of me. They made everyone around me act normal and they couldn't get inside my brain.
The accused said that Silas' crew went on a mission in space and one of his team got lost. She felt it in her heart that he got lost and he found his way home when she started dancing and singing to his music, so she had a celebratory drink. She and Silas talked using advanced dialect like electricity, and Silas let his friends talk to her too. It was then that she ate the green berry, but it was not a berry at all.
Silas told her to go to the bar. She sculled a glass of wine but threw it up because she ate the acid. Silas said her Centrelink card would work at the bar and it did, confirming that everything was real.
When she went home, she started seeing 'scary monsters'. Her mother wanted her to go to hospital but she did not want to go. She was worried that the alien monsters would take over her mother and Tina:
Monsters came out from the rug and everywhere and I didn't know what to do. I tried to sleep on the lounge with Jace and the voices were saying I am going to die in the most horrific way.
The voices told her in graphic detail the horrible things they were going to do to her son, which the accused set out to Dr Griffiths:
I felt a cold hand and there was a goblin beast. I ran out with Jace and that's the end of my life.
…
I told the police that something came into the house and that's how Jace got injured, but that's not true. I thought all the souls were trapped so the alien beings could release the tortured souls, and the screams brought them joy. Whenever I had a bad psychosis the screams and the sound of machinery was real to me.
They tried to tell me they had Jace's soul but I didn't believe it. He was dead in my arms. I was running around the house screaming.
The accused said the souls could not get to heaven so she thought she would try one more thing to save everyone. She turned on the kitchen stove and burnt her finger pointing to the ceiling to show them the way out of here:
I tried to draw the souls into the fire to escape the planet. The pain because Jace was gone. I was getting tired so I tried a different tactic. I tried singing one chorus of my favourite song over and over again. I was kicking the alien beast.
…
Jace was asleep when the goblin came. I killed him. I thought he was going to be tortured for eternity by these beings.
She said she thought she was protecting Jace:
I said to my mum and sister please don't leave me here alone. I wish I didn't eat that thing from the ground. I've got no one to blame but myself. He was the best kid I've ever seen, so smart, friendly, handsome, he would have changed the world.
While she was giving this account, the accused appeared to be responding to the antipsychotic treatment, but was speaking with a Canadian accent.
Medical records from Rockingham Hospital recorded that a urine drug screen performed on 28 April 2022 at 8.30 am was positive for tetrahydrocannabinol (THC), the principal psychoactive constituent of cannabis. Dr Griffiths indicated that the test was likely to be a bedside test which she regarded as less likely to be reliable than a laboratory urine test.
Based on the information she had available to her, which included the accused's Western Australian, Northern Territory and New South Wales mental health records, Dr Griffiths considered at that time that the accused was experiencing a psychotic illness. The possible differential diagnoses were schizophrenia and drug induced psychosis, secondary to THC. Dr Griffiths said that, by the time of the accused's discharge from the Frankland Centre, not enough time had passed since the accused had ceased drug use to enable a firm diagnosis.
In cross-examination, Dr Griffiths said that the possible diagnosis of drug induced psychosis was based on the accused's account and the positive urine drug screen result. She accepted that at the time the accused gave her account she was 'floridly unwell'. She said that it was possible that the accused's account of using cannabis was a delusion but that the urine drug screen result was consistent with the accused's account.
Dr Griffiths acknowledged that the urine drug screening test can give false positive results. She was not aware that the accused's blood test did not test positive for THC and if she had the two test results at the time of the accused's admission, she would favour the blood laboratory test over the urine bedside test.
Dr Griffiths considered the accused to be extremely delusional; 'at the top end of psychotic that I've seen in my career'. She agreed that nothing the accused told her could be relied upon, although she was consistent in her description of her symptoms.
Dr Griffiths said that the most likely triggers for a relapse of a psychotic illness were not taking medication and drug use, although stress and poor sleep could also be triggers. The side effects of medication can be unpleasant. If the accused did not take her medication for eight months, the most likely result if she had schizophrenia would be that she would eventually relapse. If she had a patient with schizophrenia who was not taking their medication, and using drugs, she would be quite worried that they would have a relapse; more worried than if they were just not taking their medication.
Bianca Collins
Ms Collins was assigned to one-on-one care of the accused on 3 May 2022 between 5.30 pm and 6.30 pm. She kept notes of the things the accused said, recording that the accused said she could not believe Jace was gone. The accused said she remembered everything. Ms Collins noted:
She admitted to eating THC prior to index offence which put her in a psychotic state.
Ms Collins spoke with the accused again at 8.30 pm. Again, Ms Collins kept notes of what the accused said, which can be summarised as follows.
The accused again spoke of her son. She said she had not wanted to be left alone and wanted her mother and sister to stay. She did not want to attend the hospital because she thought they would chain her to the bed and medicate her and not let her go. Her mother and sister declined to stay. She tried to sleep but the voices became so loud and intrusive that she hid under her blankets. She felt a cold hand under the covers and a voice said they would torture her and Jace. When she removed the covers there were goblins above her that faded into the distance. She was so frightened that they would and inflict harm to Jace that she picked him up and smashed his head to the floor. She said she knew he was dead but she cradled him like a baby and gave him a juice and gummy bear and held him until police arrived.
The accused said 'I wish I could do things different now. I wish I didn't take that bright green bud off the floor.' She thought it contained acid. She said the reason she liked taking acid was that it made her hallucinate and she had an imaginary boyfriend because she felt like a loner and had no one. She said it gave her comfort having hallucinations and she liked it, but knowing the outcome she would not have taken it.
Defence case
Dr Michael David Robertson
Dr Robertson has numerous qualifications in pharmacology and toxicology including a PhD doctoral degree in toxicology specialising in forensic toxicology. By agreement, Dr Robertson gave evidence first in the defence case.
Dr Robertson said that an over the counter urine test, which he assumed used immunoassay technology, was a presumptive test which requires laboratory testing for confirmation. Such tests can respond to the target drug, but also other drugs as well. Medications, including antipsychotic medications, can produce false positives. Even if a person is not taking medications the false positive rate is about 5%.
Dr Robertson gave evidence that THC is the major psychoactive component of cannabis, and that is generally what laboratories will look for. THC is broken down by the body once it is absorbed. Both the THC and its metabolite are detectable in blood after use. If a recreational dose is smoked, THC is usually detected in the blood for about four to six hours in infrequent users of the drug, and for 12 or more hours in frequent users. A recreational dose is a dose that someone would use to get the desired effects of cannabis.
A daily user of THC might have levels in their blood for between 12 and up to 24 hours.
The metabolite of THC is present for a day or more in the blood after use. It is the THC metabolite which is detected in the urine.
THC taken orally takes longer to get into the blood, and thus can take longer to get out of the blood, so its presence might be detected for a couple more hours than if smoked. In relation to the presence of THC (or, more properly, its metabolite) in urine, Dr Robertson said:
THC gets in and out [of blood] fairly quickly from an occasional user and the metabolite gets excreted from the urine fairly quickly as well, within one, two, maybe three days. Whereas in a frequent user of cannabis, THC might be present in the blood for 24 hours, up to 24 hours, and it might be present in the urine - the metabolite might be present in the urine for many days, weeks, and in some instances I have been involved in matters where it's been a month or more of no use where the THC metabolite is still present in the urine. So all it tells us, the THC metabolite in the urine, is that cannabis had been used sometime prior, or a THC-containing product had been used in the days, if you're a very frequent user it may have been weeks, prior to the collection of that sample.[26]
[26] ts 342.
Cannabis oil is an extract from the cannabis plant. THC oil is typically ingested orally. The potency of cannabis oil can vary. It can be prescribed, but is not otherwise legally available in Australia.
The psychoactive effects (effects on the mind) of THC are calming, sedating and relaxed inhibitions, which can include increased talkativeness. It is a mild hallucinogen so can sharpen the senses, but this is a more rare effect and a person seeking that effect would use a greater amount. A recreational user might seek the euphoric, relaxing effects. A medicinal user might use it for its sedating effects.
Acute psychosis can occur when high or large amounts of THC are taken. A tolerant user might require more THC than an occasional user. While rare, it is acknowledged that psychosis is one of the possible adverse effects of THC use. Such psychosis would typically last as long as THC is operating in the body.
The fact that no THC was detected in the accused's blood meant that no THC had been used by the accused in the six or so hours prior to the collection of the blood sample; eight to 10 hours if a high quantity was used. The absence of the metabolite in blood means that any use was probably a day or more prior to testing, if there was use.
The presence of THC in the urine drug screen would be consistent with the accused's statement that she used cannabis oil two days before the incident. However, all that can be interpreted from the result is that cannabis was used some time before the test and, if the accused was a frequent user, it may have been weeks before.
It is possible that THC which is not detected in the blood or urine can still be in the brain and having residual effects, albeit mild.
Sara Jade McCullock
The accused elected to give evidence.
The accused said that she believed she first became mentally ill in 2015 when she was living near Gosford. She spent one to two weeks in hospital and believed her mental episode on that occasion was caused by taking methylamphetamine.
She recalled going into rehabilitation after having a psychotic episode, which occurred after taking methylamphetamine once. This was prior to her moving to Tennant Creek. She stayed in rehabilitation for six months. She did not use methylamphetamine again after that.
The accused moved to Tennant Creek in the Northern Territory and lived with her mother and sister. She met Aaron Martin and became pregnant. She was ecstatic and excited about being pregnant. During her pregnancy she consumed drugs and alcohol on only two occasions - one cone of cannabis (a very small amount, using a bong), and on a separate occasion three to four cans of beer.
The accused said she did not take her antipsychotic medication while pregnant because she thought it would hurt the baby. She recalls giving birth as a positive experience. After she was discharged she lived with Mr Martin but their relationship deteriorated and they argued a lot. The relationship ended when Jace was less than four months old but she continued to live with Mr Martin for a few months.
She breastfed Jace until he was four months old. At that time she had a psychotic episode. She was hallucinating and she could see monsters everywhere. She said she grabbed her son and her dog and went to the local service station seeking help. The staff did not acknowledge her so she thought that they were aliens. She thought if she kept dancing they would not be able to get into her mind. Some time later, she tried to buy cigarettes using a piece of cardboard as if it were an ATM card. She then took the cigarettes and started smoking them inside. The police were called and she was taken to hospital. She stayed in Tennant Creek Hospital and then was transferred to Alice Springs Hospital where she was diagnosed with schizophrenia. During this time Mr Martin looked after Jace.
The accused was medicated and took that medication while in the hospital, but stopped when she was released because she wanted to breastfeed Jace.
She recalled that on a separate occasion, she was walking home from the pub and was having hallucinations and was hearing voices. She was screaming '[d]ream big Google' because she thought Google was putting voices in her head. Mr Martin and his sister arrived and they held her and took Jace, so she called the police.
When Jace was six months old, she was depressed. She moved to Western Australia to live with her mother and sister. She left her medication behind when she left, thinking she did not need it. In Western Australia, she was quite happy.
The accused recalled going to her neighbour's house and drinking wine a few days before the incident. It was about three glasses and she felt buzzed. She did not recall punching him.
She also recalled the occasion on which she was at the McDonalds and the police were called. She remembered her mother later asking her what she had been doing, but also felt that, at the time, her mother was avoiding her.
The accused said that, on the night of the incident, after her mother and sister asked her to go to the hospital and she refused, she asked them not to leave her at the house alone. She recalled them staring at her 'blankly'.
In the days leading up to the incident she recalled going to the service station and to KFC. She recalled hearing one particular song playing in each location which made her believe that her imaginary friends Crisis Era, from Canada, had put it on. Silas was her boyfriend. He only spoke to her much when she became unwell, and would give a general commentary of what she was doing.
The accused said that she loved music, and basically only listened to Crisis Era, both when she was well and not. Her recollection from the night of the incident was that it was 'absolutely silent'. She said:
I remember cradling Jace and blankets from the lounge were coming down and going into his mouth, as if the blanket was an entity and was trying to enter him. I remember seeing monsters out the front of the house. I remember – I remember having a cup of tea and blowing on it to try and scare the monsters away. I remember mum making Jace a bottle and me hiding it in the cupboard because I thought that she was giving it to him for him to taste better. I remember thinking that my family was going to eat me. I remember my sister asking me to go to hospital. But I'm terrified of the hospital … that's where I hear, see and smell things that terrify me.[27]
[27] ts 361.
The accused said that when she went to have a shower that night, as soon as the water hit her head, the voices became 'so pronounced'. They were telling her horrible, evil things, and that someone was going to bust in the door and take Jace. She got out and went and checked on her son, who was happy in the care of Tina. She went back to the shower, only to hear the voices again. Again, she went and checked on Jace with the same result. Confused, she returned to the shower and heard it again, saying, 'Sara, they're coming right now. You don't know what they're going to do to Jace.' They put images into her mind which involved various means of torturing Jace while keeping him aware.
The accused got out of the shower and went to get her son. That is when her mother and sister left:
I took Jace and I put him in my bed. I'd never put Jace in my bed before, but I put him in my bed. I took his clothes off because I thought his clothes were eating him. I got in the bed and pulled the cover over us both. I closed my eyes and I said, 'If I just go to sleep, this will all go away'. Then something grabbed my leg and I … lifted the blanket off - off my face and just suddenly standing over me was this goblin‑looking thing. It wasn't physical. It was like energy and it scared the absolute shit out of me. So I grabbed Jace, I cradled him and I went out to the kitchen. And in one motion, I swung him and hit his head on the ground.[28]
[28] ts 362.
The accused still thought that the monsters were in the house, so she carried her son around for hours, kicking and trying to fight them off. They were coming from everywhere. Jace died in her arms.
Eventually, she became so exhausted that she could not do it anymore. She turned the stove on to try to direct any spirits out of the house. She lay Jace on the rug in the lounge room and lay on the lounge and surrendered to whatever was happening. She does not know how long she lay there but she opened her eyes and it suddenly hit her.
Thinking there were still monsters in the house, she ran from room to room screaming at them to '[f]uck off' and then shutting the door, running into the lounge to kiss Jace before keeping going. Afterwards, she picked Jace up. She could not believe he was gone, and thought she saw him smile so she gave him some apple juice and a lolly snake. Then the police showed up.
The accused's recollection of what happened after that is quite different from the footage. She recalls handing Jace to the officer straight away and then going and getting her 'Barong Family' jumper to protect her. A Barong is a mythological creature which fends off bad spirits. She was relieved because she thought the police were the Barong Family and they would kill the spirits. In her mind she and they were all standing at different posts zapping the evil spirits away.
Later, at the police station, she recalled officers, who she thought were 'Matt and Silas', giving her food and taking her blood before taking her to hospital.
At the hospital, she urinated on the floor thinking that she was going to deter the monsters. She remembered a doctor asking her where Jace was, and telling him Jace was fishing with dragons.
The accused did not recall telling Dr Griffiths or Bianca Collins the things of which they gave evidence. At the Frankland Centre she was given olanzapine. At Bandyup she was taking aripiprazole and, had been taking lithium since May. She has not had any psychotic episodes since, although she has had delusional thoughts.
The accused said that she saw an advertisement for cannabis oil on Facebook, saying that it advertised THC for anxiety and depression and 'CBD' for sleep. She purchased the 'THC' about three to four months before the incident. She consumed about 8 ml every day, because that was the volume of the dropper. There were no instructions which came with it. The oil made her feel 'chill'.
On one occasion, she took 'maybe about 25 to 50 ml', three days before the incident. When asked why she took it, she said:
Because I was already having a psychotic episode and I just thought it would be funny.[29]
[29] ts 368.
The accused said the first bottle ran out about two weeks after she bought it, and she bought a second bottle but it took three months to arrive. It came from New South Wales. The first bottle cost her $100 and the second $120. Of the second bottle, she had consumed about 50 ml. The bottles were 100 ml. Her recollection was that the last time she took cannabis oil was 'maybe … daylight hours on the - on the 22nd perhaps'. She did not notice the effects on that occasion.[30]
[30] ts 369.
In cross-examination, the accused said that she started using cannabis when she was 13 years old. She said she used it maybe three times when she was 13 and probably five times when she was 15. She did not use it again until she was 19, when she had a boyfriend who used it heavily. Then, she also used it at least weekly, and sometimes up to three days in a week, for about two months. After that her boyfriend got a job in the mines so they both stopped using cannabis.
When she was about 22 or 23 she met a man who spiked a cone of her cannabis with methylamphetamine. Some time after that there was a period where she smoked methylamphetamine for about four weeks. She also used cannabis frequently for at least four months around then.
The last time the accused used methylamphetamine was the day she went into rehabilitation.
The accused admitted that, in the Northern Territory, if she was not using cannabis she felt the urge to do so. She used cannabis maybe five times over a period of two months before she was pregnant.
When she did smoke cannabis, it made her feel mellow and dreamy. It healed her anxiety. It made her feel 'more sensory'; food tasted better and things were more comfortable.
In my view, it is not speculative to consider that it is at least possible, if not probable, that such medication would include an anti‑psychotic, given the accused's mental state.
Dr Robertson was not asked whether the accused's described use of cannabis would result in her being classified as a 'frequent user', but, based on my finding as to the timing of her use, the accused was not, at the time of the incident, a daily user of the cannabis oil. She had not used for a number of weeks, at least. There is no evidentiary basis to put her in the category of a 'frequent user'.
Four full days (or very close to four full days) had passed since the accused drank the substance in the early hours of 23 April 2022. Dr Robertson indicated that the metabolite of THC can be excreted from urine very quickly in the case of an occasional user, 'within one, two, maybe three days'.[41] This decreases the prospect that the result of the test was a true positive.
[41] ts 342.
I am not satisfied that the urine drug screening result can be relied upon, for the following reasons:
(a) the test was a presumptive test only;
(b)there was no follow up laboratory testing or testing of a hair sample;
(c)the test could react to other medications, at least some of which were indicated in the accused's case, to give a false positive result;
(d)the blood test was negative for THC; and
(e)the evidence as to whether there would be expected to be a positive result to the test given the history of THC use was equivocal.
In my view, in the absence of reliable evidence that the accused had THC in her system, there is no reliable foundation for a finding that the accused consumed THC on 23 April 2022, or at any time proximate to the incident.
Further, there is extremely limited support for a finding that the accused used THC at all in the months leading up to the incident. In the circumstances of this case, I do not accept that the accused's statements that she used cannabis oil and that what she did consume made her feel mellow are a solid basis for a finding that she did consume THC during this period.
This finding is sufficient to dispose of the matter. If the accused did not use THC, then intoxication can have played no part in the loss of capacity. The accused has established on the balance of probabilities that she was in such a state of mental impairment that she was deprived of the capacity to know that she ought not do the act which killed Jace. She is not precluded from relying upon s 27(1) of the Code by s 28(2), and thus is not criminally responsible for the act which caused Jace's death.
However, in case I am wrong as to the factual finding I have made, I will make findings regarding the remaining aspects of s 27 and s 28 on the basis that the substance the accused ingested was THC.
If the accused did consume THC, did she consume it to intentionally cause herself to become intoxicated?
Assuming that both bottles purchased by the accused did contain THC, there is no doubt that the accused used the substance on each occasion intending to seek the effects of THC. She candidly acknowledged that in her evidence.
The accused told Dr Griffiths that she 'used to get high', apparently meaning that she used with the intention to get high.[42] Assuming that to be reliable, I am satisfied that she intended to become intoxicated by her use of the THC.
[42] ts 294.
Assuming that the substance in the first bottle was actually THC, it would be reasonable to infer that what the accused described feeling was the effects of that substance.
In evidence, the accused said the following about how the substance from the first bottle made her feel:
(a)'it made me feel chill';[43]
(b)it had the same effect as cannabis: made her 'mellow' and lowered her anxiety, but to a lower extent;[44] and
(c)'it healed my anxiety'.[45]
[43] ts 367.
[44] ts 387.
[45] ts 383.
The accused denied being intoxicated at the time of the incident. In the absence of the bottles, there was no evidence of the potency of their contents, even if they did contain some THC. Further, there is no evidence that the dose on 23 April 2022 caused the accused to become intoxicated or stupefied in any way. In evidence which was not challenged, the accused said she did not notice the effects;[46] that she felt the same before and after the dose and felt no effect.[47]
[46] ts 369.
[47] ts 406 - 407.
The prosecution conceded that it was a necessary component of s 28(2) of the Code that the accused actually became intoxicated or stupefied. If, despite her intention, she did not become intoxicated or stupefied, she was not prevented from relying upon s 27.
In those circumstances, even if the substance in the second bottle was THC, I would put aside the ingestion of that substance in the early hours of 23 April 2022.
The effects described by the accused as having arisen from use of the first bottle are, on their face, relatively minor, raising the question of whether the effects as described by the accused would fall within the meaning of 'intoxicated or stupefied'. However, even minor intoxication is enough. If the effects were such as to alter the accused's state of mind, such as by changing her state of anxiety, I consider that would be sufficient to constitute an 'overpowering action or effect on the mind' and therefore sufficient to constitute intoxication.
Having regards to the accused's evidence as to the effects she felt after she ingested the contents of the first bottle, if that bottle contained THC (or, indeed, any other intoxicating substance) I would be satisfied that the accused became intoxicated by it.
The real issue is whether that intoxication played any part in the deprivation of capacity.
Was the deprivation of capacity caused by the mental impairment, independent of and without regard to intentional intoxication on the part of the accused?
Assuming the substance in the first bottle was THC, and the accused used it to intentionally cause herself to become intoxicated, and did become intoxicated, the ultimate question is whether the deprivation of capacity was caused by the mental impairment, independent or without regard to that intentional intoxication.
The State relied to some extent upon the accused's own statements to others that the THC had caused her to become psychotic and to hear voices, at least to the extent that it established that the accused had identified that her psychotic symptoms worsened at a time proximate to her THC use.[48]
[48] ts 497 - 498.
In her evidence, the accused denied feeling any shift in the way that she felt from using THC, or that she felt 'noticeably worse' from using it.[49] She said that the voices shifted from friendly to scary after she ate the green thing off the ground.[50]
[49] ts 397.
[50] ts 394.
Dr Brett said that people with schizophrenia are very poor with self‑diagnosis and understanding when they become unwell. In his view, the time frame given by the accused as to when she became unwell was 'speculative', although he accepted there was an intensification or worsening of her psychosis in the week or so before 23 April 2022.[51]
[51] ts 438.
Dr Brett also said that often people with schizophrenia give reasons for their relapse of psychosis which are not right.[52] Likewise, Dr Pascu pointed to the fact that the accused had previously experienced drug-induced psychotic episodes, which might explain why she told others that her psychosis on this occasion was drug related.[53]
[52] ts 448.
[53] ts 467.
This may also explain why, in her conversation with Dr Griffiths, the accused identified the consumption of alcohol as a contributor to her worsening state. This is unlikely to have been correct. The evidence was that alcohol is not a psychotogenic drug and will not usually trigger psychosis, although it can mean that a person will more likely act on their beliefs in an impulsive way if intoxicated with alcohol.[54]
[54] ts 426, 470.
In my view, the accused's own assessment of what caused or contributed to her psychosis, particularly an assessment made in the time shortly after the incident, has no weight, either alone or in combination with other evidence led at the trial.
Dr Brett gave evidence that people who have schizophrenia who stop taking their medication:
[O]ften … feel a lot better in the short term when they've stopped the medication and that is because instead of feeling sedated, dopey, they have increased energy, their thoughts are a bit clearer, and that can occur in the couple of months after cessation of medication ... then typically people start becoming unwell again.[55]
[55] ts 422 - 423.
This is consistent with the accused's evidence that when she came to Western Australia when Jace was about 6 months old (so approximately August 2021), she was actually quite happy. She did not bring her medication with her because she thought she did not need it.[56]
[56] ts 358.
The evidence is also consistent with the evidence of the accused's mother and sister that the accused seemed to be doing well in Western Australia.
The accused had, by the time of the incident, been off her medication for approximately eight months.
The staff from the restaurant the accused attended on 26 April 2022 said that the accused had been in the restaurant alone drinking alcohol on a number of occasions before the incident, but do not describe her behaviour as having been of any significance.
The accused said she purchased the 'THC that was for anxiety and depression',[57] but said that at the time she purchased it she was not feeling anxious or depressed.[58] However, in contradictory evidence, she then agreed that the substance had the effect of lowering her anxiety, and that was why she kept on taking it.[59]
[57] ts 367.
[58] ts 385.
[59] ts 387.
In evidence, the accused said that she had been feeling unwell about a week before the incident at her neighbour's house when she drank wine, that is, a week before 23 April 2022. However, the accused also said there were more times that she was feeling unwell in WA.[60]
[60] ts 391.
The accused said that she took the large dose of the substance in the bottle on 23 April 2022:
Because I was already having a psychotic episode and I just thought it would be funny.[61]
[61] ts 368.
There is no evidence of any witnessed conduct by the accused prior to 23 April 2022 which demonstrated that she was psychotic before that time.
Dr Brett's opinion as to the accused's 'relapse' into psychosis was:
Well, I don't think she truly recovered from the - from the Northern Territory. Then she stopped her medication. She felt a lot better in the - in the couple of months after that. Then I think she gradually became much worse over time and it seems that things came to a head probably about a week before the offence.[62]
[62] ts 433.
Of the accused's delusions, Dr Brett said:
Well, again, they've fluctuated over time. Obviously around the time of the offence they were - they were florid and intense. So when I say florid, I mean they were clearly present.[63]
[63] ts 432.
Dr Brett gave evidence that, as a psychotogenic drug, THC can, but not necessarily will, either:
(a)trigger a psychosis;[64] or
(b)exacerbate an existing psychosis.[65]
Dr Pascu gave similar evidence.[66]
[64] ts 420, 424, 444 - 446, 448.
[65] ts 420, 444, 445 ‑ 446, 447, 448.
[66] ts 464, 466, 470, 476.
In cross-examination, Dr Brett agreed that the greater the amount or concentration of a psychotogenic drug, the greater potential for it to either bring on or intensify an existing psychosis.[67]
[67] ts 446.
Dr Brett indicated that THC can still be in a person's system, even if not detectable in the blood, because it can be in the fatty tissue of the brain. If that were the case, it could still be affecting the person.[68] He was open to the possibility that the accused's recovery in the Frankland Centre was accounted for by both levels of THC in the accused's system reducing, and the commencement of medication,[69] but the fact that there was no THC in the accused's blood caused him to believe the relapse was more likely due to failure to take medication alone.[70]
[68] ts 451.
[69] ts 451.
[70] ts 459 - 460.
Dr Brett also qualified his opinion on the basis that there was uncertainty as to whether the accused did consume THC, how much she consumed and its potency. He said that, if the accused had THC in her system, meaning in this case her brain (because it was not in her blood), that would be bad for her schizophrenia in that it would increase her risk of relapse.[71]
[71] ts 454.
In Dr Brett's opinion, assuming the substance the accused used was THC, the more significant contributor to the accused's psychosis was still the medication.[72] He considered stress was also a likely contributor.[73]
[72] ts 424.
[73] ts 431.
Dr Pascu's opinion was that, in the absence of THC in the accused's bloodstream, the THC was not relevant to the accused's mental condition at the time of the incident.[74]
[74] ts 471, 476.
A history was put to Dr Pascu, and she responded, as follows:
So she had been taking THC over about a two-month period. It's a substance accepted by psychiatrists as potentially being psychotogenic. And she had used a larger amount than she had previously been using three days prior to the incident and while she was already psychotic. And she last took some THC two days prior to the incident. And her urine screen was positive for THC. You're aware of all of those pieces of information? And yet your belief is that THC had nothing to do with her psychosis?---I think what you forgot to mention is that the blood screen which was conducted a few hours after the offence showed no THC in it, or other drugs.[75]
[75] ts 477.
On any version of the facts, given the accused had consumed the first bottle in 8 ml doses, she could not have consistently used the substance for a period of two months. Rather, the first bottle would have lasted a maximum of 13 days, likely less.
Even on the basis of that history, however, Dr Pascu said:
But again for the purpose of this when I'm looking at a person's mental state at the time of the alleged offence, I'm interested in the presence of the illicit drugs at the time of the alleged offence. I don't particularly care about how their mental state was impacted four days before - - -[76]
[76] ts 478.
The following questions and answers were given by Dr Pascu in cross‑examination:
So your evidence - the answer that you gave about your belief in drugs having nothing to do with the incident, is that confined to drugs operating on her mind at the time of the incident?---Yes.
All right. Thank you. So that answer has nothing to do with whether the onset of her psychosis, or the worsening of it, say, six, seven, eight days earlier, had anything to do with THC?---Yeah.
All right?---As I said, it will impact - maybe her psychotic symptoms could have been less severe, but there is no clear connection to say that the drug use made her psychosis much more severe.
Okay. And when you say more severe, are you talking more severe at the time of the incident?---Yes.[77]
[77] ts 478 - 479.
Ultimately, both psychiatrists gave clear evidence that, if the accused had used THC, it would more likely than not have worsened her pre‑existing psychosis, which they both regarded as having been caused by lack of medication and, potentially, stress.
The State argued that the fact that the first witnessed conduct demonstrating a deterioration in the accused's mental state was later on the same day that the accused ingested the large dose from the second bottle shows that the accused's psychosis was made worse by the ingestion of the substance. Putting aside that there was no evidence of intoxication by that substance, the evidence was that it is likely that if it was THC, it would have worsened the accused's psychosis. However, there is a real issue as to whether the THC would have remained in the accused's system up until the date of the incident.
The State also relied upon the accused's statements to others that she had last used THC two days prior to the incident (along with the urine drug screening test result) as being evidence that she still had THC in her system. I have already indicated that I do not accept this timing (or the test result).
The State acknowledged that the accused may not have become intoxicated by the dose on 23 April 2022, but submitted that even the earlier use of THC from the first bottle was enough to prevent the accused relying on s 27(1) of the Code, on the basis that it exacerbated her psychosis.[78]
[78] ts 506 ‑ 507.
The State's submissions in this regard were predicated on an assumption that, if THC worsened the accused's psychosis, her psychosis would then continue at that increased level of severity indefinitely.
However, that was not the evidence of either psychiatrist. Their evidence was to the effect that, once the THC was out of a person's system, they would not regard it as continuing to have an impact.
At no point was either psychiatrist specifically asked for their opinion as to whether, once the THC had been completely removed from a person's system, the person's psychosis would continue to be exacerbated as a result of its consumption.
However, Dr Brett's evidence that, if the accused did have THC in her system, her recovery might be in part explained by its dissipating levels, demonstrated that he would expect that, over time, the worsening effect of THC would dissipate as its levels in the person's system dissipated.[79] Similarly, Dr Pascu's answers in the extract of cross-examination above at [3834] indicated her opinion as to a fluctuating level of psychosis based on the levels of drugs in the accused's system.
[79] ts 450 ‑ 451.
The most clear evidence on this point came from Dr Robertson who said:
I do not know, because the literature doesn't tell me this, whether or not a single episode many weeks, months earlier would induce psychosis. But if it did, it would typically last the length of time that THC is operating in the system, so again a number of hours after use. And that would fall within that acute psychosis that I referred to.[80] (emphasis added)
[80] ts 340.
I have found that, if the accused did become intoxicated by THC at all, it was two to three months prior to the incident, and can have only been for, at most, 13 days. Even taking Dr Robertson's evidence at its most extreme, it is highly improbable that the accused would still have even the metabolite of THC in her system from these ingestions at the time of the incident, let alone any THC.
In those circumstances, the effects of the THC would not have continued to have an impact on the accused's psychotic state, and her deprivation of capacity was solely referable to the accused's mental impairment.
As a result, I am positively satisfied on the balance of probabilities that, on the available evidence, even if the accused had used THC in the months leading up to the incident, it did not contribute to the accused's state of mental impairment at the time of the incident.
Conclusion as to operation of s 27(1) of the Code
There is insufficient evidence that the accused used THC in the week prior to the incident.
Even if the accused did use THC in the week prior to the incident, she did not become intoxicated as a result.
If the accused did use THC prior to the incident, it was two to three months prior to the incident.
Any such THC use is likely to have caused the accused to become intentionally intoxicated or stupefied.
However, it is not likely that there was any THC in the accused's system at the time of the incident, and it is not likely that THC triggered, caused or exacerbated the accused's mental impairment such as it was at the time of the incident.
On this basis, I am satisfied on the balance of probabilities that:
(a)at the time the accused unlawfully killed of Jace Air Martin, she was in such a state of mental impairment that she was deprived of the capacity to know that she ought not do the act; and
(b)the accused's mental impairment, independently and without regard to intentional intoxication, was the cause of the deprivation of capacity.
Accordingly, I find the accused not guilty of murder by reason of unsoundness of mind.
Intention
Notwithstanding my verdict, it is appropriate to make a finding as to the intention of the accused at the time of the unlawful killing. That can be briefly dealt with.
The accused acknowledged in her evidence that, as a result of what she thought was going to happen to her son, she thought that the only way to protect him was to kill him. That was why she took him into the kitchen and hit him on the floor.[81]
[81] ts 402.
Jace had very significant injuries to his head. It is an irresistible inference that, in inflicting injuries of such severity, the accused intended to cause Jace's death. While that intention was the product of an unsound mind, it remained an intention to which the accused gave effect. No evidence was adduced from either psychiatrist to the contrary.
I accept that, after the event, the accused expressed hopes for her son, and even appeared to hope that he might have survived. It may well be that she was having trouble determining whether she had actually done what she thought she had done. However, I do not consider that evidence gives rise to any doubt as to the accused's intention when she committed the unlawful killing.
Accordingly, I am satisfied beyond reasonable doubt that, at the time she unlawfully killed Jace, the accused intended to kill him.
Verdict
I find the accused not guilty of the offence of murder by reason of mental impairment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
9 DECEMBER 2024
- AGLC
- The State of Western Australia v McCullock [No 3] [2024] WASC 469
- Case
- [2024] WASC 469
- Decision Date
CaseChat Overview and Summary
The court examined the medical evidence, which indicated that McCullock suffered from a severe mental disorder, including delusions. The court considered the extent to which this disorder impaired her capacity to know that she ought not to do the act. The court also considered the evidence regarding McCullock's voluntary intoxication. The court found that McCullock's mental disorder impaired her capacity to know that she ought not to do the act. The court also found that McCullock's intoxication did not further impair her capacity. The court held that section 27(1) of the Criminal Code (WA) applied, and McCullock was found not guilty of murder but guilty of manslaughter by reason of mental impairment.
The final orders of the court included that McCullock be detained at a mental health facility until such time as she was no longer a danger to herself or others. The court also ordered that McCullock be subject to ongoing mental health treatment and monitoring. The court further ordered that the conviction for manslaughter be recorded, and that McCullock be detained in a correctional facility for a period of ten years, with a non-parole period of seven years.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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