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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PAL [No 2] [2023] WASC 449
CORAM:   MCGRATH J
HEARD:   12 & 13 JUNE 2023
DELIVERED          :   24 NOVEMBER 2023
FILE NO/S:   INS 33 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
CHUDIER THOWATH PAL
Accused

Catchwords:

Criminal law - Trial by Judge alone - Accused charged with murder and arson - Whether the accused is not guilty by reason of unsoundness of mind - Whether accused was mentally impaired - Whether the accused was deprived of the capacity to know that he ought not do the act - Whether the accused was deprived of the capacity to control his actions - Whether the accused intentionally caused himself to become intoxicated or stupefied by his consumption of methylamphetamine

Legislation:

Criminal Code (WA), s 1, s 27, s 28, s 279, s 444
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 21, s 24
Criminal Procedure Act 2004 (WA), s 93, s 113, s 118, s 120, s 126

Result:

Verdicts of guilty

Category: B

Representation:

Counsel:

Prosecution	:	Ms K Robinson
Accused	:	Ms K Farley SC & Mr T McCulloch

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Legal Aid (WA)

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 Clough (No 2) [2010] QCA 120
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Lockwood; Ex parte A-G [1981] Qd R 209
R v Porter [1933] HCA 1; (1933) 55 CLR 182
R v Radford (1985) 142 SASR 266
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 Daly [2019] WASC 386
The State of Western Australia v Davidson [2022] WASC 70
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Jones [2018] WASC 395
The State of Western Australia v Knock [2020] WASC 246
The State of Western Australia v Marotta [2018] WASC 329
The State of Western Australia v Pal [2023] WASC 157
The State of Western Australia v Siddique [No 2] [2016] WASC 358
Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254

MCGRATH J:

Mr Pal has been indicted on two counts, namely that on 2 January 2021 at Doubleview he murdered Stephanie Lee Robinson contrary to s 279 of the Criminal Code (WA) and further, that he wilfully and unlawfully damaged property, namely a townhouse, and that the townhouse was damaged by fire contrary to s 444(1)(a) of the Criminal Code.
On 17 May 2023, I ordered that Mr Pal be tried by judge alone pursuant to s 118 of the Criminal Procedure Act2004 (WA) (CPA).[1]
[1] The State of Western Australia v Pal [2023] WASC 157.
Mr Pal's trial was conducted before me on 12 and 13 June 2023.
At the commencement of the trial, pleas of not guilty on the ground of unsoundness of mind were entered by Mr Pal.[2] The State relied upon an agreed statement of material facts and agreed timeline. Mr Pal by the agreed facts admitted causing the death of the deceased and causing the damage to the property by fire. The issue at trial was whether Mr Pal was not criminally responsible for his acts and should be acquitted on the basis of unsoundness of mind.
[2] Criminal Procedure Act, s 142, s 126(1)(b).
The trial required that I determine three questions. First, whether Mr Pal was mentally impaired within the meaning of s 27(1) of the Criminal Code at the time that he did the acts that caused the deceased's death and damaged the property by fire. Second, if Mr Pal was mentally impaired at the time that he did the act that caused the deceased's death and did the act that damaged the property by fire, did his impairment deprive him of any of the capacities specified in s 27(1). Third, if Mr Pal was mentally impaired at the time that he did the relevant act that caused the death and did the act that damaged the property by fire, and if his mental impairment did deprive him of one or more of the capacities specified in s 27(1), is he precluded from relying on unsoundness of mind under s 27(1) because he intentionally caused himself to become intoxicated at the time that he did the relevant acts within the meaning of s 28(2) of the Criminal Code.
In determining the third question, s 28(2) does not preclude an accused who has intentionally caused himself to become intoxicated from relying upon s 27(1) if the accused suffered from a mental impairment independently of and without regard to the accused's intoxication. Further, that at the time of doing the relevant act or making the relevant omission, the accused was in a state of mental impairment as to deprive him of one of the capacities in s 27(1), independently of and without regard to the accused's intoxication.
At trial, the issue in dispute was narrow in compass. The State submitted that the evidence supported a finding that Mr Pal was suffering a mental impairment at the time of the offending and that the mental impairment deprived him of one or more of the capacities specified in s 27(1) of the Criminal Code, namely that he was deprived of the capacity to know that he ought not do the relevant acts. However, the State contended that Mr Pal intentionally caused himself to become intoxicated and that therefore, he was precluded from relying on unsoundness of mind. The State contends that Mr Pal has not proven on the balance of probabilities that he did not intentionally become intoxicated at the time he did the act that killed the deceased and did the act of arson that damaged the property. The State submits that the underlying mental impairment was exacerbated by the intoxication.
The State case then properly understood is that is that the accused was intentionally intoxicated with methylamphetamine, and the accused has not proven that the mental impairment he suffered at the relevant time was independent of and without regard to his intoxication. Further, the accused has not proven that at the time of doing the acts that constitute both counts, he was in such a state of mental impairment that deprived him of the capacity to know that he ought not do the acts that constituted the offences, independent of and without regard to his intoxication.
Counsel for Mr Pal submitted that Mr Pal was suffering a mental impairment and that the mental impairment deprived him of the capacity to know that he ought not do the acts that constitute both counts. Counsel for Mr Pal submitted that whist it was accepted that Mr Pal consumed methylamphetamine, he was not intoxicated and therefore should be acquitted on the basis of unsoundness of mind. Therefore, the case for the defence was very narrow. The issue at trial was that the Court should find that Mr Pal was not intoxicated.
For the following reasons, I am satisfied it is more likely than not Mr Pal was suffering a mental impairment at the time he did the act that caused the death of the deceased and did the act of arson that damaged the property. Further, I am satisfied that Mr Pal was deprived of the capacity to know that he ought not do the act that caused the death of the deceased. However, I am satisfied that Mr Pal intentionally caused himself to become intoxicated at the time that he did the relevant acts within in the meaning of s 28(2) of the Criminal Code. Mr Pal's intoxication worsened or exacerbated the effects of his mental illness. It is not possible to disentangle the effects of the methylamphetamine from the mental illness. Mr Pal has not proven that the mental impairment he suffered at the relevant time was independent of and without regard to his intoxication. Further, Mr Pal has not proven that at the time of doing the relevant act he was in such a state of mental impairment that deprived him of the capacity to know that he ought not do the relevant acts independently of and without regard to his intoxication. Thus, by reason of s 28(2) of the Criminal Code, Mr Pal is precluded from relying upon s 27(1) of the Criminal Code to relieve him of criminal responsibility for his offending.
Accordingly, Mr Pal is criminally responsible for his acts and therefore, is guilty of both the murder count and the arson count.
In these reasons, I will consider the following:
(1)Agreed facts and agreed timeline of events at trial.
(2)Relevant legal principles.
(3)Evidence received at trial.
(4)An assessment and the findings.

Agreed Facts & Agreed Timeline of Events

At trial, the State and Mr Pal relied upon an agreed statement of facts,[3] and an agreed timeline of events.[4] I received oral testimony and written reports from two State witnesses, namely Dr Brett, Consultant Psychiatrist, and Dr Grasko, Toxicologist. The defence called two witnesses, Dr Pascu, Consultant Psychiatrist and Dr Robertson, Toxicologist. The State tendered video footage showing Mr Pal's behaviour on a bus and at the police station after the alleged offending.[5]
[3] Exhibit 3, Agreed statement of material facts dated 8 June 2023.
[4] Exhibit 3, Agreed timeline of events.
[5] Exhibit 1, USB footage of Mr Pal taken on 2 January 2021.
Section 93 of the CPA relevantly provides:
(1)If an accused pleads not guilty to a charge on account of unsoundness of mind and the judge is satisfied -
(a)that the only fact in issue between the accused and the State is whether, under TheCriminal Code section 27, the accused is not criminally responsible for an act or omission on account of unsoundness of mind; and
(b)that the prosecutor consents, and the accused does not object, to the judge doing so; and
(c)that it is in the interests of justice to do so,
the judge -
(d)may decide the issue referred to in paragraph (a) on any evidence and in any manner the judge thinks just; and
(e)for that purpose, may ascertain any fact by the verdict of a jury or otherwise; and
(f)may find the accused not guilty of the charge on account of unsoundness of mind; and
(g)if such a finding is made and a jury has been sworn to give a verdict on the charge, must discharge the jury from giving its verdict on the charge.
(2)Subsection (1) is in addition to and does not affect the operation of section 146.
Given that the parties have each consented to the agreed statement of facts and an agreed timeline being relied upon, I am required to determine whether it is in the interests of justice to decide the issues in the trial on the basis of the agreed statement of facts and agreed timeline of events. I am satisfied that it is in the interests of justice to receive the agreed statement of facts and the agreed timeline of events as establishing the factual circumstances relevant to the determination of the issues in this case.
The agreed statement of facts is in the following terms:
BACKGROUND
1.The deceased, Stephanie Robinson, was a 30-year-old female of slim build. The accused is a tall (206 cm) male of athletic build, who was 29 years old at the time of the incidents the subject of the indictment.
2.The deceased and the accused had been in an intimate relationship for about two weeks.
3.The incidents the subject of the charges occurred in the early hours of 2 January 2021 at 114 Ravenscar Street Doubleview, the deceased's home address ('the address'). The house is a two-storey townhouse owned by the Department of Housing, which was leased by the deceased.
THE ASSAULT ON THE DECEASED
4.In the afternoon of 1 January 2021, the deceased, her friend Tianna and the accused were at the deceased's home address. They all smoked cannabis together. At that time the accused and the deceased seemed happy together. Tianna left after about 15 minutes as she wanted to confront an associate. The accused and the deceased left with her and they talked about going to another friend to buy more cannabis. They parted ways with Tianna when Tianna decided to go to another friend's house.
5.The deceased and the accused used cannabis together and shared a point of methamphetamine at about 10.00 pm, which they snorted.
6.In the early morning of 2 January 2021, the accused and the deceased had an argument, which resulted in a physical altercation in the loungeroom. During the argument the accused repeatedly struck the deceased to the head, possibly with a ratchet covered with gaffer tape which was later located by police under a table in the deceased's lounge.
7.A neighbour, GR woke up in the morning of 2 January 2021 when she heard repeated thumping noises, which she thought came from the deceased's place. She also heard wailing sounds, like groaning, from a female. She heard the noises for about 5 or 6 minutes. She stated that it was just starting to get light. She wanted to call police but was unable to because her mobile phone was flat, so she went back to bed without any further action.
8.The attack resulted in catastrophic injuries to the deceased's head (count 1 - murder).
9.Following the attack on the deceased, the accused attended at the residence of PN, a friend of the deceased who lived in Doubleview. This was at about 6.30 am. The accused and the deceased had stayed at PN's residence up until 3 days before the murder, when PN told them to leave due to their constant arguing. The accused was agitated when speaking to PN, and said he had killed the deceased and crushed her skull. He borrowed a lighter from PN and announced he would go back and burn the house.
10.The accused returned to the deceased's address. He placed a mattress over the deceased and set it on fire (count 2 - criminal damage by fire).
11.He also set the wheelie bin outside the deceased's address on fire, before leaving in possession of a blood stained doona. The doona was later found in a bin at another address in Ravenscar Street.
DISCOVERY OF THE DECEASED'S BODY
12.At approximately 7.00 am, a jogger passed the deceased's address during his morning run and noticed the wheelie bin on fire. He called 000 at 7.01 am.
13.Firefighters from the Department of Fire and Emergency Services (DFES) arrived at the deceased's address at 7.12 am. There was a lot of black smoke inside. They discovered the deceased's body in the front lounge area when they made their way through the smoke and pushed the mattress aside.
14.The deceased was lying on her stomach with her arms out either side of her and one of her legs up. Her back was charred but the front of her body was not. The deceased was naked. She had a head injury to the left-hand side of her head and the side of her face was swollen. One of the firefighters described the head injury as 'quite significant and round', 'like something had been hit to her head and left an impact wound the size of a golf ball.'
15.The firefighters extricated the deceased's body from the house, and went back inside. When the front room had cleared of smoke, they saw a pool of blood which appeared to be centralised to where the body of the deceased had been lying.
16.Ambulance officers arrived at the scene at 7.25 am. They observed that a large part of the deceased's skull (approximately 3 cm x 10 cm), above the left temple, was missing, and that the brain was exposed. The head injury was running from front to back. There were extensive burns across the deceased's body, which was tense as if rigor mortis had set in. Her injuries were incompatible with life.
THE ACCUSED AFTER THE OFFENCE, AND HIS ARREST
17.At about 1.00 pm or 2.00 pm on 2 January 2021 the accused went to the address of a friend, MK, in Balga. The accused was sweaty. He was wearing a grey T-Shirt and black shorts with paint on one of the legs, black and white shoes and a hat with a bird feather in it. He had a black backpack with him. MK asked him if he was alright, and the accused responded that he was not and that he needed water. MK hosed him down to cool him down. The accused said that he had come from Doubleview and that he had done something. The accused said a number of strange things which did not make sense to MK. At one stage the accused removed a watch from his backpack and asked if anyone wanted to buy it.
18.The accused said he wanted food, so he and MK walked to a Fish and Chips shop nearby. When walking to the carpark the accused said, 'I have killed someone', and 'you have to do what you got to do'. Whilst waiting for the food, the accused acted strangely and was leaning over the counter. When MK and the accused returned to MK's place, MK rang the accused's brother and told him something was wrong, and he had to come. The accused also spoke to his brother (in a language MK did not understand). When the accused got off the phone, he picked up his backpack and left. MK called the police.
19.At 1.42 pm the accused boarded TransPerth bus 2310 ('TP 2310') at the bus stop Camberwell Road in Balga. He appeared distraught and was crying. The accused said that he had no money and asked for a ride. The bus driver allowed him on the bus without payment as he felt sorry for him. The accused was mumbling about his father for a little while and then sat down on the first seat on the passenger entry/exit side of the bus. At 1.52 pm the accused exited the bus close to the Warwick Police Station.
20.At 2.09 pm the accused attended at the Warwick Police Station. He was crying and in distress. He was sweating and not wearing any shoes, and dropped his backpack to the floor. He was arrested on suspicion of murder and led to the Lockup area. The accused did not resist arrest.
21.The accused was cautioned and confirmed that he understood he did not have to answer any questions. When asked about injuries, he responded that he had a couple of stab marks in his hands. The accused asked if he was safe at the police station. He further stated that:
·People were coming after him;
·He was just trying to help her (BTB the deceased);
·He had never done anything like that before;
·She (BTB the deceased) may have given him some mercury, he was not sure.
22.The accused was later conveyed to Sir Charles Gairdner Hospital for the treatment of minor injuries. Based on medical advice as to his mental state he was not interviewed. A blood sample was collected, which was later analysed and found to contain 0.03 mg/L methylamphetamine and 0.01 mg/L amphetamine, as well as very low amounts of diazepam and desmethyldiazepam.
23.He was conveyed to Perth Watchhouse where he was charged and bail refused.
AFTER ARREST
24.The accused first appeared on these charges on 3 January 2021. After he was transferred to Stirling Gardens Magistrates Court, there were several adjournments by consent as he was considered unfit to plead.
25On 20 January 2021 the accused was escorted from the Frankland Centre at Graylands Hospital to a dental appointment. During the trip the accused stated that:
·He killed his girlfriend but it was in self-defence;
·He had been afraid of her handlers and had to kill her before they got to him;
·He was going to take her body out to sea but decided to burn it instead;
·He thought it was the best way to try and get away with the murder and that voices had told him to do it.
26.A report from Dr Pascu dated 24 August 2021 found that the accused was not fit to stand trial. Dr Pascu believed that the accused suffers from paranoid schizophrenia or schizoaffective disorder.
27.A court ordered 'Fitness to Plead' report from Dr Rooprai dated 25 March 2022 found that the accused was fit to plead/stand trial. The State, in consultation with defence, subsequently commissioned a 'Fitness to Plead' report from Dr Brett. In his report dated 25 May 2022, Dr Brett took the view that the accused was fit to stand trial. Dr Brett diagnosed him with schizoaffective disorder.
28.On 31 August 2022 the accused was committed to the Supreme Court for trial.
INJURIES TO THE DECEASED
29.The post-mortem examination of the deceased showed the following injuries:
·Widespread thermal injuries to the body surfaces (no soot present within the airways);
·Severe head injuries with complex fracturing of the skull with associated disruption of the underlying brain;
·Soft tissue injuries to the head, neck, torso and fingers.
30.The cause of death was head injuries.

Agreed timeline of events

The agreed timeline of events is in the following terms:

31 December 2020
Date/Time	What happened	Evidence
Accused assaults Nasso, he and victim get kicked out.	Nasso (p 37 PB)
1 January 2021
11.00 am	Accused turns up at Andreassen's place and tells him he and victim have been kicked out of Nasso's place. Asks for assistance in picking up victim's belongings from Nasso's place. Andreassen accompanies him to Nasso's place and subsequently to victim's place. Last time he speaks to victim is at 1 pm.	Andreassen (victim's friend) (p 4 - 8 PB)
5.53 pm	Victim, accused, and Tianna Woods (victim's friend) seen walking through Doubleview/Karrinyup.	CCTV Tiarna (p 242 PB)
7.00 pm	Victim appears distressed.	Noonan (neighbour) (p 10 PB)
9.39 pm	Last SMS exchange between victim and friend.	Butterfield (p 106 PB)
Approx 10.00 pm	Accused shares a point of meth with victim.	Dr Brett (para 13/para 60)
11.30 pm - 12.00 am	At Tilson's (exhibiting strange behaviour).	p 211 PB Slater (p 218 PB)
2 January 2021
3.00 am - 5.00 am Possibly 5.05 - 5.10 am	Accused attacks victim at her home address.		Ricks (neighbour) (p 14 PB - starting to get light) Dickson (neighbour) (p 21 PB - 5.05 am to 5.10 am)
6.00 am - 7.00 am	Accused knocks on neighbour's door, unclear what he wants as neighbour does not speak English.		Ba Tu Tran (p 48 PB)
6.30 am	Accused turns up at Nasso's address, says he has killed victim, borrows lighter to burn house.		Nasso (28/29 PB, 6.40 am) Agitated (p 28/43 PB)
6.30 am - 7.00 am	Accused sets mattress covering victim's body on fire. Sets wheelie bin at victim's place on fire.		Note: Dickson hears smoke alarm at 6.15 am - does not tally with Nasso's evidence
6.40 - 7.00 am	Victim's rubbish bin on fire, 000 is called.		Blazevic (p 53/54 PB)
Approx 7.00 am	Accused captured by CCTV in Ravenscar Street carrying blood-stained doona, doona later found in bin at 133A Ravenscar St.		CCTV Bruce (resident 133A Ravenscar) (p 99 PB)
7.12 am	Firefighters arrive, extract victim's body from address.		DFES Rickert, Connor, Woods
7:25 am	Ambulance officers arrive.		Moore (p 89 PB)
Lunchtime (1.00 pm or 2.00 pm)	Accused tells friend that he has killed someone (p 121).		Kanyimbu (117 - 123 at p 121 PB)
1.42 pm	Accused takes bus TP 2310 to police station.		L'Abbate (p 124 - 128 PB at p 124) CCTV
2.00 pm	Accused attend Warwick Police station and is arrested.		Harrison (p 141 PB) Holdway (p 221 PB at p 224 - 225)
Approx 7.20 pm	Blood test taken at SCGH.
Unknown	During forensic procedure comments made by the accused.		p 160 - 162 PB
3 January 2021
1.00 pm	Accused tells PAO Lacey 'having to kill that woman'.		Lacey (p 155 PB)
20 January 2021
Unkown	Accused statements at Frankland on route to the dentist.		Gartlan (p 224 - 230 PB)

Relevant legal principles

Judge alone trial

In a trial by judge alone the judge is required to state the principles of law that have been applied in coming to a verdict.[6] I direct myself in respect to the following principles.
[6] Criminal Procedure Act 2004 (WA), s 120(2).
The fundamental principles in any criminal trial are the presumption of innocence and that the prosecution bears the onus of proving each of the elements of the offence charged beyond a reasonable doubt. If the State does not prove each element beyond reasonable doubt, then the charge is not proven and the verdict must be one of not guilty.
To the extent that it is necessary to draw inferences as to essential facts from the evidence, it is important to consider whether there are possible alternatives consistent with innocence. It is not possible to draw an inference adverse to an accused person unless it is the only reasonable inference. This is an aspect of the requirement that a charge be proved beyond a reasonable doubt.
The State relied upon expert witnesses Dr Brett and Dr Grasko and the defence relied upon expert witnesses Dr Pascu and Dr Robertson. I approach my assessment of the respective expert witnesses as I would for any other witness. I am not bound to accept and act upon any witness' evidence, including an expert witness' evidence. I may reject expert evidence if there is other evidence to support my findings or if I conclude that the expert's evidence is unreliable.
In Hone v The State of Western Australia,[7] the Court of Appeal considered the proper approach to expert evidence which is not contradicted at trial. Both Steytler P and Miller JA stated that whilst neither a jury nor a judge sitting alone are bound to accept and act upon expert evidence, where there is no evidence or circumstance to contradict that evidence, a verdict cannot be given contrary to that evidence.[8]
[7] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138.
[8] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138, [13] (Steytler P), [124] (Miller JA).
In assessing the evidence and reaching a verdict it is important to guard against any feelings of prejudice or sympathy. Such feelings must be put aside and the question of guilt determined on an objective and dispassionate assessment of the evidence.
I must consider each count individually and deliver a separate verdict on each count. The verdicts do not have to be the same, rather they may be different, depending upon the evidence relevant to each count.
Mr Pal did not give evidence. It was Mr Pal's right not to do so and no adverse inference may be drawn against Mr Pal in respect of his election not to give evidence.

Elements of the offence of murder

The elements of the offence of murder is that Mr Pal killed the deceased, the killing was unlawful, and Mr Pal did the act with either an intention to kill or an intention to cause an injury to the deceased that was, objectively, of such a nature that was or was likely to endanger the deceased's life.
It is unlawful to kill any person unless the killing is authorised, justified or excused by the law.[9] A person who causes the death of another, either directly or indirectly, is deemed to have killed that other person.[10] In this case, Mr Pal admitted by the agreed statement of facts that he did an act that caused the death. I am satisfied beyond a reasonable doubt that he did kill the deceased.
[9] Criminal Code, s268.
[10] Criminal Code, s 270.
Whether a killing constitutes the offence of murder depends upon the intention of Mr Pal at the relevant time. Mr Pal has raised the defence of insanity. In circumstances where that defence has been raised it is necessary to consider whether Mr Pal is criminally responsible for the killing, having regard to s 27 of the Criminal Code. It is only if that question is answered adversely to Mr Pal that the next question arises, namely, what was his intention at the relevant time. The issue of insanity must, therefore, be determined before the issue of intent.[11]
[11] Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254, [25] (Kennedy J).
In the event that insanity is not established, it would then be necessary to consider whether the prosecution has proved that Mr Pal had the intention to kill or cause a life endangering injury to the deceased at the time of her killing.

Elements of the offence of arson

The elements of the offence of arson are that it was Mr Pal who damaged the property, he did so wilfully, he did so unlawfully, and that the damage was caused by fire.
It is unlawful to damage property of another without his consent unless the act causing the damage is authorised, justified or excused by the law.[12] In this trial there is no contention that Mr Pal damaged the property lawfully by fire. I am satisfied beyond a reasonable doubt that Mr Pal unlawfully damaged the property by fire.
[12] Criminal Code, s 441.
The State must prove that the act damaging the property was done 'wilfully'. Section 443 of the Criminal Code defines wilfully as meaning where a person does an act intending to destroy or damage property; or knowing or believing that the act is likely to result in the destruction of or damage to property, and the act results in the destruction of or damage to property. The State will prove Mr Pal's state of mind, that is his intention, knowledge or belief, by inference. In order to do so, the State must prove that Mr Pal having the relevant intention, knowledge or belief is the only rational and reasonable inference open on all the evidence.
The offence of arson is an offence which involves an intention to cause a specific result.[13] Accordingly, I will determine the issue of insanity before the issue of whether Mr Pal 'wilfully' damaged the property.
[13] R v Lockwood; Ex parte A-G [1981] Qd R 209.

Insanity

Every person is presumed to be of sound mind, and to have been of sound mind at any time which is in issue, until the contrary is proved.[14] The burden is on Mr Pal to prove that he was not of sound mind at the time he did the act that is alleged to constitute the offences. Mr Pal must prove that he was not of sound mind on the balance of probabilities.[15]
[14] Criminal Code, s 26.
[15] R v Porter [1933] HCA 1; (1933) 55 CLR 182, 184.
Section 27 of the Criminal Code provides as follows:
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(2)A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
Accordingly, s 27 of the Criminal Code contains two bases for relieving a person of criminal responsibility where there is a mental impairment. In this trial s 27(1) is applicable, with the two relevant incapacities raised being that Mr Pal did not have the capacity to know that he ought not to do the acts which caused the death of the deceased and caused the damage to the property, and the capacity to control his actions.
The term mental impairment is defined by s 1(1) of the Criminal Code to mean intellectual disability, mental illness, brain damage or senility.
Mental illness is defined to mean an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.[16]
[16] Criminal Code, s 1.
Whilst what constitutes mental illness is a question of law, the issue of whether or not the facts disclose a state of mental illness is a question of fact.[17]
[17] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 60.
In The State of Western Australia v Jones,[18] Jenkins J observed that the definition of 'mental illness' contained in s 1(1) of the Criminal Code reflects statements made by King CJ in R v Radford about the meaning of the expression 'disease of the mind' which is used in the common law concept of insanity.[19] Her Honour summarised the statements of King CJ in the following terms, which I respectfully adopt:[20]
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 arterio sclerosis, 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 '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 properly be termed mental illness, as distinct from the reaction of a healthy mind to extraordinary stimuli'.[21]

Capacity to control actions

[18] The State of Western Australia v Jones [2018] WASC 395, [43].

[19] R v Radford (1985) 142 SASR 266, 274 ‑ 275.

[20] The State of Western Australia v Jones, [43].

[21] In R v Falconer (54, 60, 76, 82) King CJ's comments, as later summarised by Jenkins J, were generally approved of by the High Court. When Falconer was decided, s 27 of the CriminalCode was differently worded. The subsequent amendments to the CriminalCode are consistent with King CJ's statement of principles, although the definition of 'mental impairment' is broader than that of 'disease of the mind' which was considered by King CJ.

A person is deprived of the capacity to control their actions if, by reason of their mental impairment, they are deprived of the ability to make a conscious decision to do the relevant act; to exercise the power of choice to act.[22] A person is not deprived of the capacity to control their actions merely by reason of having a significantly impaired capacity to resist an impulse or emotion.[23]

Capacity to know that one ought not to do the act

[22] R v Falconer, 39 - 40; The State of Western Australia v Brown [No 3] [2013] WASC 349, [44]; The State of Western Australia v Siddique [No 2] [2016] WASC 358, [51]; The State of Western Australia v Marotta [2018] WASC 329, [39] - [45].

[23] The State of Western Australia v Marotta, [45].

With respect to the meaning of the term 'capacity to know that he ought not to do the act', the High Court stated in Stapleton v The Queen:[24]
For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. See R v Davis (1881) 14 Cox CC 563, Stephen J, R v Kay (1904) 68 JP Jo 376, Stephen J. In R v Porter (1933) 55 CLR 1828 at pp 189, 190, this was expressed by Dixon J as follows:
'The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people' (footnotes omitted).
[24] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 367.
In Evans v The State of Western Australia,[25] the Court of Appeal considered the application of the common law principles to s 27 of the Criminal Code. McLure P stated that there was no suggestion that there was any material distinction between the common law test as stated by the High Court in Stapleton v The Queen and s 27 of the Criminal Code. McLure P considered what is meant by the term 'know' in s 27 of the Criminal Code and observed that whether an act is right or wrong is determined by reference to an objective standard, and that the question is whether the accused had a complete incapacity to reason as to what was, by that objective standard, right or wrong.[26]
[25] Evans v The State of Western Australia [2010] WASCA 34, [30] - [31].
[26] Evans v The State of Western Australia [2010] WASCA 34, [31].

Intoxication - applicable legal principles

Section 28 of the Criminal Code 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.
(3)When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.
Where there is a question about whether an accused intentionally caused themself to become intoxicated, the onus is on the accused to prove, on the balance of probabilities, that that they did not intentionally cause themself to become intoxicated.[27]
[27] The State of Western Australia v Daly [2019] WASC 386, [37], [81]; The State of Western Australia v Davidson [2022] WASC 70, [47].
In Stefanski v The State of Western Australia,[28] the proper construction in respect of both s 28(1) and s 28(2) of the Criminal Code was determined. It is not necessary to outline the Court of Appeal's consideration of s 28(1) for the reason that if Mr Pal was intoxicated at the relevant time, it is not being asserted that the intoxication was caused without intention of his part. I will consider the Court of Appeal's consideration of s 28(2) of the Criminal Code.
[28] Stefanski v The State of Western Australia [2022] WASCA 5.
The coram in Stefanski each wrote separate judgments but each agreed on the conclusion, which Buss P expressed as follows:[29]
[29] Stefanski vThe State of Western Australia [2022] WASCA 5, [152] - [154], [158].
So, by s 28(2), if an accused has intentionally caused himself or herself to become intoxicated or stupefied, the accused is not relieved of criminal responsibility if the intoxication or stupefaction deprives him or her of one or more of the capacities referred to in s 27(1). See Arnold [44].
However, s 28(2) does not preclude an accused, who has intentionally caused himself or herself to become intoxicated or stupefied, from relying upon s 27(1) if the accused is able to prove, on the balance of probabilities, that at the time of doing the act or making the omission:
(a)the accused suffered from a 'mental impairment', as defined in s 1(1), independently of and without regard to the accused's intoxication or stupefaction; and
(b)at the time of doing the relevant act or making the relevant omission, the accused was in such a state of 'mental impairment', as defined in s 1(1), as to deprive him or her of at least one of the capacities referred to in s 27(1), independently of and without regard to the accused's intoxication or stupefaction.
Section 28(2), read and construed having regard to s 27 and in the context of s 28(1), does not have the effect that s 27(1) does not apply, in any circumstances, to an accused who has intentionally caused himself or herself to become intoxicated or stupefied. There is no warrant for that conclusion in the text of s 28(2) when regard is had (as it must be) to the wider statutory context and the purposes of s 26, s 27 and s 28.
…
The answer to the Second Issue of Construction is that, in 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)).

The meaning of 'intoxication' in s 28(1) & s 28(2) of the Criminal Code

In the State of Western Australia v Herbert,[30] Jenkins J considered the meaning of 'intoxication' in s 28(1) and s 28(2) and the meaning of 'disordered' in s 28(1), stating as follows:
[30] The State of Western Australia v Herbert [2017] WASC 101, [58] - [59].
In The State of Western Australia v Brown [No 3] [2013] WASC 349 and The State of Western Australia v Lang [No 2] [2016] WASC 206, I considered the meaning of the Criminal Code s 28. I see no reason to change the views which I expressed in those cases. In Brown, I said:
'[T]he Macquarie Dictionary defines 'intoxication' as including:
1.         inebriation; drunkenness;
2.         Pathol. Poisoning;
3.         the act of intoxicating; and
4.         overpowering action or effect upon the mind.
The Shorter Oxford Dictionary defines 'intoxication' as including:
1.The action of poisoning; the state of being poisoned; an instance of this.
2.The action of stupefying with a drug or alcoholic liquor; the making drunk or inebriated; the condition of being so stupefied or made drunk.
3.         fig.
(a)The poisoning of the moral or mental faculties; a cause of this.
(b)The action or power of highly exciting the mind; elation beyond the bounds of sobriety.
…
In my view, the most appropriate definition of 'intoxication' is 'overpowering action or effect on the mind'.
…
The Macquarie Dictionary defines 'disordered' to mean 'in confusion' or 'mentally ill'. The online Oxford English Dictionary defines 'disordered' relevantly to mean:
1.put out of order, thrown into confusion; disarranged, confused, irregular; and
2.affected with bodily or mental disorder; out of health; deranged; morbid.
In my view, 'disordered' in s 28 means confused or disarranged. Thus, put in other words, the Criminal Code s 28 states that s 27 applies to a person whose mind is confused or disarranged by the overpowering action or effect on the mind of a drug, if the intoxication is caused without intention on his part. It is clear from what I have said that it is unnecessary for the purpose of s 28(1) that a large amount of the drug has to be consumed [45] - [49].
In Lang I said:
Using the same definition of intoxication, s 28(2) says that s 27 does not apply to a person who has intentionally caused his mind to be intoxicated; that is, subject to the overpowering action or effect of a drug or liquor.
I am of the opinion that s 28(2) refers to a person who has 'become intoxicated' at the time of the commission of the relevant acts.
The common law and cases on s 28 and similar statutory provisions do not suggest that an accused who has intentionally caused themselves at any point in the past to become intoxicated cannot rely on the defence of insanity. Neither does the State submit that is the meaning of the section. Rather, the State submits that s 28(2) says that the defence of insanity does not apply to a person who has intentionally caused himself to become intoxicated at any time in the past and that past intentional intoxication has contributed in some way to the deprivation of a relevant capacity.
In my opinion that is not the law. … That is, intentional intoxication disentitles, even a mentally impaired person, from relying on the defence of insanity. However, it is intentional intoxication at the time of the commission of the offence which the law is concerned about. In this respect I am of the view that s 28(2) reflects the common law as stated by Lord Birkenhead LC in Director of PublicProsecutions v Beard [1920] AC 479:
'But drunkenness is one thing and the diseases to which drunkenness leads are different things, and if a man by drunkenness brings on a state of disease which causes such a degree of madness, even for a time, as would have relieved him from responsibility if it had been caused in any other way, then he would not be criminally responsible.'
Thus, if an accused 'brings on' mental impairment by past intoxication with drugs or liquor, s 28(2) does not disentitle him from relying on the defence of insanity, unless he is intentionally intoxicated at the time he does the relevant acts...
On the other hand, I accept that the state of intoxication referred to in s 28(2) may be longer than the time the relevant accused subjectively experienced the effects of the drugs or liquor. In this respect, I agree with the conclusion of the Queensland Court of Appeal in R v Clough [2010] QCA 120 that the ordinary meaning of intoxication is wide enough to encompass more than comparatively short-term elation or stimulation.
It is a question of fact whether the accused was intoxicated and the accused's experience of the effect of the drugs or liquor may be only one of a number of matters relevant to that determination. Nevertheless, the drugs or liquor must still be found to have had an overpowering action or effect on the accused's mind at the time of the commission of the relevant acts, in order for him to be 'a person who has intentionally caused himself to become intoxicated' so that s 28 (2) can apply and s 27 does not apply [36] - [42].
In The State of Western Australia v Knock,[31] Derrick J adopted the statements of Jenkins J in The State of Western Australia v Herbert in relation to the meaning of intoxication in s 28(1) and s 28(2) of the Criminal Code and observed:[32]
Therefore, a person's 'mind is disordered by intoxication' within the meaning of s 28(1) if their mind is disordered by the overpowering action or effect of a drug or alcohol. Similarly, a person 'becomes intoxicated' within the meaning of s 28(2) if their mind becomes subject to the overpowering action or effect of a drug or alcohol.
[31] The State of Western Australia v Knock [2020] WASC 246.
[32] The State of Western Australia v Knock [2020] WASC 246, [56].
Derrick J stated that the drugs or alcohol must be found to have had an overpowering effect on the person's mind at the time of the doing of the relevant act in order for the person to be 'a person who has intentionally caused himself to become intoxicated' within the meaning of s 28(2).[33]
[33] The State of Western Australia v Knock [2020] WASC 246, [56].
Derrick J also stated that in both s 28(1) and s 28(2), the notion of intention is linked to the state of intoxication. That is, the result of ingesting drugs or alcohol rather the act of doing so. Accordingly, the fact that a person has voluntarily consumed drugs or alcohol which results in them becoming intoxicated will not of itself be sufficient to bring them within the terms of s 28(2). It is only where the person voluntarily consumes drugs or alcohol with the intention of causing themselves to become intoxicated, and they become so intoxicated at the time of doing the relevant act or making the relevant omission, that s 28(2) can operate to preclude them from relying on s 27(1). I respectfully adopt Derrick J's reasoning.
Derrick J in The State of Western Australia v Knock also adopted and applied the observations of Jenkins J in The State of Western Australia v Herbert that the state of intoxication referred to in s 28(2) may be longer than the time the relevant accused subjectively experienced the effects of the drugs or liquor.
In respect to the meaning of 'stupefaction' in s 28(2), Derrick J stated that there are no material differences between the meanings of intoxication and stupefaction in s 28(2).[34] I respectfully adopt Derrick J's reasoning.
[34] The State of Western Australia v Knock [2020] WASC 246, [58].
In the State of Western Australia v Davidson,[35] Mazza JA adopted the meaning given to the word intoxication by Jenkins J in The State of Western Australia v Herbert, given that the parties did not challenge that reasoning, but Mazza JA observed that 'in my view, there is room for a construction of the word which is less demanding'.[36] I agree with Mazza JA. Though, similarly in the present matter, counsel did not challenge the reasoning of Jenkins J. I must apply Her Honour's construction of the word intoxication.
[35] The State of Western Australia v Davidson [2022] WASC 70.
[36] The State of Western Australia v Davidson [2022] WASC 70, [49].
Mazza JA adopted Jenkins J's statement that the state of intoxication referred to in s 28(2) may be longer than the time the relevant accused subjectively experienced the effects of the drugs or liquor. Mazza JA referred to the agreement of Jenkins J with the conclusion of the Queensland Court of Appeal in R v Clough (No 2),[37] that the ordinary meaning of 'intoxication' is wide enough to encompass more than comparatively short-term elation or stimulation.[38] In R v Clough (No 2) the Queensland Court of Appeal stated that the meaning of 'intoxication' includes the secondary effect of amphetamine consumption, that being a cerebral disturbance to a person's mental state which can last considerably longer than the primary effect of methylamphetamine 'high'.[39] I also agree with the conclusion of the Queensland Court of Appeal in R v Clough (No 2) regarding the width of the meaning to be given to intoxication.
[37] R v Clough (No 2) [2010] QCA 120, [14].
[38] The State of Western Australia v Davidson [2022] WASC 70, [49].
[39] R v Clough (No 2) [2010] QCA 120, [7].

Evidence at trial

The State relied upon two experts, namely Dr Brett, Consultant Psychiatrist and Dr Grasko, Toxicologist. Dr Brett's evidence comprised one report dated 23 December 2022 and his oral testimony. Dr Grasko's evidence comprised one report dated 2 May 2023 and his oral testimony.
The defence relied upon Dr Pascu, Consultant Psychiatrist and Dr Robertson, Toxicologist. Dr Pascu's evidence comprised two reports dated 24 August 2021 and 26 April 2021 respectively, and her oral testimony. Dr Robertson's evidence comprised one report dated 8 June 2023 and his oral testimony.
I also received at trial two toxicology reports in respect of Mr Pal and the deceased respectively. At 7.20 pm on 2 January 2021, a sample of blood was taken from Mr Pal for examination. The ChemCentre Certificate of Analysis dated 17 October 2022 with respect to Mr Pal's sample relevantly states:[40]
[40] Exhibit 6, ChemCentre Certificate of Analysis regarding Mr Pal dated 17 October 2022.

BLOOD NON PRESERVED) (F1136505-9) Lab No 22T1406001)

ALCOHOL

Not Detected

DIAZEPAM

Detected

DESMETHYLDIAZAPAM

Detected >0 01 mg/L

METHLYAMPHETAMINE

Detected

AMPHETAMINE

Detected

TETRAHYDROCANNABINOL

Not Detected

OTHER COMMON BASIC DRUGS

Not Detected

BLOOD NON PRESERVED) (F1136505-9) Lab No 22T1406002)

ALCOHOL

Not Detected

METHLYAMPHETAMINE

0 03 mg/L

AMPHETAMINE

0.01 mg/L

During the autopsy of the deceased, a sample of blood was taken for examination. The ChemCentre Certificate of Analysis dated 18 January 2021 with respect to the sample taken from the deceased relevantly states:[41]
[41] Exhibit 8, ChemCentre Certificate of Analysis regarding the deceased dated 18 January 2021.

BLOOD (AORTA NON PRESERVED) (Lab No 20T4641001)

CARBON MONOXIDE

> 5 percent saturation

DIAZEPAM

Detected

DESMETHYLDIAZAPAM

Detected

METHLYAMPHETAMINE

Detected

AMPHETAMINE

Detected

MIRTAZAPINE

Detected

OTHER COMMON BASIC DRUGS

Not Detected

BLOOD (AORTA PRESERVED) (Lab No 20T4641002)

DIAZEPAM

Approx 0.02 mg/L

DESMETHYLDIAZAPAM

Approx 0.01 mg/L

MIRTAZAPINE

Approx 0.02 mg/L

MIRTAZAPINE METABOLITE

Detected

COMMON AMPHETAMINES

Not Analysed

OTHER COMMON DRUGS

Not Detected

BLOOD (FEMORAL PRESERVED) (Lab No 20T4641003)

ALCOHOL

Not Detected

CANNABINOIDS BY IMMUNOASSAY

Negative

AMPHETAMINE

0.05 mg/L

METHYLAMPHETAMINE

0.35 mg/L

Psychiatric evidence

Dr Brett

On 19 December 2022, Dr Brett conducted a clinical interview with Mr Pal and reviewed specific material, which he particularises in his report.[42]

Dr Brett's summary of background

[42] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 2.

Dr Brett outlined the relevant medical history of Mr Pal, observing that between 8 April and 30 April 2020, Mr Pal, who was then serving a term of imprisonment in respect to other offences, was admitted to the Frankland Centre.[43] At that time, Mr Pal was expressing delusional beliefs and was diagnosed with a single manic episode, severe, with psychotic symptoms.[44] Accordingly, Mr Pal commenced using prescribed medication but ceased his medication upon his release from the Frankland Centre.[45] Upon his release from prison no further mental health assistance was provided.
[43] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 2 - 8.
[44] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 7.
[45] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 13.
Whilst admitted to the Frankland Centre, Mr Pal's ex-partner and their three children returned to the United States. Mr Pal stated that this family issue caused him to become depressed and resulted in him using more illicit substances upon his release as a form of self-medication.[46] Mr Pal reported that during the period leading up to the alleged offending he was experiencing psychotic phenomena.
[46] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 2.
In respect to substance abuse history, Mr Pal informed Dr Brett that he commenced using marijuana at 14 years of age and that he has used that substance extensively throughout his life.[47] He reported that in 2017, he commenced using methylamphetamine by 'snorting' the substance and that he has used the drug intravenously on one occasion. Further, since 2014 Mr Pal has consumed cocaine on a 'binge basis'. Mr Pal stated that he had used dexamphetamines with the deceased in the weeks prior to the alleged offending.[48]
[47] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 9.
[48] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 9.
Mr Pal stated that he had been using substances with the deceased during the night of the offending, namely that he had smoked marijuana and had 'snorted methylamphetamine'. Mr Pal stated that he shared 'a point' with the deceased at 10.00 pm, being about five hours prior to the alleged offending.[49]
[49] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 9.
Dr Brett stated that Mr Pal, during his interview, 'described himself as intoxicated' and that he 'had increased energy, he did not sleep and was cleaning up the house'.[50]
[50] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 3.
Dr Brett further stated that Mr Pal described that he was experiencing a number of psychotic phenomena around the time of the offending, which occurred between 3.00 am and 4.00 am.[51] Mr Pal stated that whilst he was unable to describe what his mission was, he believed that he was God's favourite son and that he was receiving messages from pigeons.
[51] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 3.
Mr Pal stated that he started to believe that there was a plot to 'take him out' and that he was to be killed. He stated that he heard the deceased scream the word 'boys' and that he believed that had to kill the deceased to save himself.[52] Mr Pal stated that he believed that at the time he was doing the right thing and that God was within him.
[52] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 3.
Mr Pal stated that he then cycled to Balga to see his friends. He returned to the property to set the fire because he wanted to alert police as to what had happened.[53]
[53] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 4.
On 4 January 2021, Mr Pal was admitted to the Frankland Centre, displaying paranoid thought disorder, with complex conspiracy theories.[54] Mr Pal did not have insight into his mental illness, nor an understanding of the gravity of his offending. Mr Pal stated that he was God and was fixing Earth to make it more like heaven.[55]

Capacity

[54] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 8.

[55] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 8.

Dr Brett stated that Mr Pal was experiencing a number of psychotic phenomena at the time of the alleged offences. He was experiencing paranoid delusions and believed his life was at risk. He had some grandiose delusions, believing that he was God's favourite son and that he was on a divine mission. He believed that the deceased was 'involved in setting him up'.[56] The conspiracy against him involved the government and motorcycle gangs.
[56] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 13.
Dr Brett diagnosed that Mr Pal was suffering a schizoaffective disorder and substance abuse disorder (marijuana, dexamphetamines and methylamphetamine).[57] Dr Brett stated that at the time of the offences, Mr Pal had a mental impairment, namely the mental illness schizoaffective disorder. He had been unmedicated and was using illicit substances to self-medicate. Dr Brett observed that ceasing medication and using illicit substances are the most common reasons for people with psychotic illnesses to relapse.[58]
[57] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 12.
[58] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 14.
In his evidence in chief, Dr Brett stated that schizoaffective disorder is a combination of schizophrenia and bipolar affective disorder.[59]
[59] ts 41 (12/06/2023).
Dr Brett expressed the opinion that at the time of the offences, Mr Pal was not deprived of the capacity to know what he was doing.[60] Mr Pal knew that he was killing the victim, as he believed that his life was at risk. He believed that she was part of a conspiracy to kill him. Dr Brett stated that Mr Pal knew that he was lighting a fire to alert the police, which is consistent with his actions following the alleged murder.
[60] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 14.
Dr Brett also found that at the time of the offences, Mr Pal's mental impairment deprived him of the capacity to control his actions. Mr Pal was overwhelmed by his psychotic processes and had no control to prevent himself from acting in the way he did.[61] Dr Brett observed that Mr Pal had 'multiple psychotic phenomena and everything he was experiencing was connected and consistent with his delusional experience'.[62] In cross-examination, Dr Brett stated that the capacity to control actions is a reference to an impulse limb. Dr Brett stated that Mr Pal would have committed the offence even if a policeman was present at the time of the offending.[63]
[61] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 14.
[62] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 14; ts 43 (12/06/2023).
[63] ts 44 (12/06/2023).
Dr Brett stated that at the time of the alleged offences, Mr Pal's mental impairment deprived him of the capacity to know that he ought not do the act.[64] Mr Pal believed that he was doing the right thing and that he was the son of God on a divine mission. Mr Pal believed that the deceased was part of a conspiracy to kill him and that his life was in imminent danger. Dr Brett stated that those beliefs were due to Mr Pal's psychosis and that therefore, he had no other option than to act in the way he did.[65] In examination in chief, Dr Brett stated that Mr Pal believed that his life was in imminent danger and that he had no other option than to kill the deceased and to light the fire.[66] In respect to lighting the fire, Dr Brett stated that the act was not part of an attempt to conceal the evidence.[67]

Intoxication

[64] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 14.

[65] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 14.

[66] ts 44 (12/06/2023).

[67] ts 44 (12/06/2023).

In respect to intoxication, Dr Brett stated that Mr Pal was using substances prior to the alleged offending. Dr Brett observed that Mr Pal, during his interview on 19 December 2022 at the Frankland Centre, stated that he was intoxicated with marijuana and methylamphetamine.[68] Dr Brett expressed the opinion that Mr Pal's 'drug use would have exacerbated his underlying mental illness. It may have precipitated an acute relapse of his psychotic disorder. He voluntarily used the substances'.[69]
[68] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 14.
[69] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 14.

Further, Dr Brett stated that whilst Mr Pal's behaviour was driven by his mental disorder, his drug use would have worsened his mental disorder. However, the drug use was not the 'primary factor in the offending behaviour. [Mr Pal] had been diagnosed with a mental disorder before the index offence'.[70]
[70] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 15.
Dr Brett stated that Mr Pal relapsed due to not being on medication and consuming illicit substances but that his psychotic beliefs persisted despite resuming his medication and abstinence from illicit substances.[71] Therefore, Mr Pal, who has remained as an inpatient at the Frankland Centre, still has an ongoing mental impairment though he is not consuming illicit drugs.
[71] Exhibit 2, Report of Dr Brett dated 23 December 2022, p 15.
In his evidence in chief, Dr Brett confirmed that Mr Pal, during his consultation, stated 'that he felt intoxicated'. Further, Dr Brett gave evidence that Mr Pal elaborated on his intoxication, stating 'that he had increased energy, that he couldn't sleep, and he was up cleaning the house'.[72]
[72] ts 39 (12/06/2023).
In examination in chief, Dr Brett stated that by his words 'exacerbated the underlying mental disorder' he was describing the making of the symptoms more florid and more obvious', with the symptoms worsening with the result that he is 'more likely to be irritable and more likely to act in a violent manner and do irrational things and more likely to act on his psychotic beliefs'.[73] Dr Brett further stated that 'illicit substances and psychotic disorders go very badly together'.[74]
[73] ts 43 (12/06/2023).
[74] ts 42 (12/06/2023).
Dr Brett stated that the 'drug use may have triggered or worsened this current psychotic episode', but Mr Pal does have an underlying mental impairment.[75] Dr Brett observed that whilst the drug use may have worsened the psychotic episode, Mr Pal still suffers from the underlying mental impairment notwithstanding that he is being treated with medication in the Frankland Centre.[76] However, Dr Brett maintained that 'the evidence is that he had an underlying mental disorder and that the drug use exacerbated that disorder'.[77]
[75] ts 42 (12/06/2023).
[76] ts 42 (12/06/2023).
[77] ts 43 (12/06/2023).
In cross-examination, Dr Brett confirmed that the mental impairment was treatment resistant.[78] Further, Dr Brett stated that the alleged offending was driven by the mental impairment and that the drug use was not the primary factor in the offending behaviour.[79]
[78] ts 52 (12/06/2023).
[79] ts 55 (12/06/2022).
In cross-examination, Dr Brett was asked whether Mr Pal was able to report with accuracy whether he was intoxicated at the time of the offending. Dr Brett stated that 'intoxication is a subjective thing' and that 'we all know when we're intoxicated'. Therefore, Mr Pal 'would have been the best person to say that'.[80]

Dr Pascu

[80] ts 57 (12/06/2023).

Dr Pascu produced two reports dated 24 August 2021,[81] and 26 April 2022,[82] and gave evidence at trial.
[81] Exhibit 4, Report of Dr Pascu dated 24 August 2021.
[82] Exhibit 5, Report of Dr Pascu dated 26 April 2022.
Dr Pascu conducted multiple clinical interviews with Mr Pal and reviewed specific material, which she particularises in her reports.[83]
[83] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [7].
Dr Pascu outlined the psychotic behaviour of Mr Pal prior to the offending.[84] Dr Pascu stated that Mr Pal reported that on the day of the alleged offences that 'we were doing well' but after going upstairs fixing the security 'my heart suddenly started beating very hard and different'.[85] Mr Pal stated that he got a vibe about the deceased who he believed was acting weird. Mr Pal was concerned that she was a police informant. He believed that the deceased 'called out boys' and that 'God probably told me… they were going to kill me'.[86] Mr Pal stated that he was about to be hurt and the deceased 'was in [on] it'.[87] During her testimony, Dr Pascu stated that Mr Pal 'felt that he was going to die' and 'he had to act to protect his life'.[88] Dr Pascu stated that at the time Mr Pal did the act of assaulting the deceased 'his mental state was altered by the acute psychosis'.[89]
[84] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [8] - [22].
[85] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [16].
[86] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [16].
[87] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [16].
[88] ts 69 (12/06/2023).
[89] ts 69 (12/06/2023).
Dr Pascu stated that Mr Pal reported in his clinical interview that he 'wanted to burn the house down' and he 'just burnt the doona to set the fire alarm off because I needed help to be an open person'.[90]

Psychiatric history

[90] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [21].

Dr Pascu outlined the psychiatric history of Mr Pal observing that his first documented contact with mental health services was on 8 April 2020 with his admission to the Frankland Centre.[91] On his admission, Mr Pal presented with an elevated mood and with pressured, loud speech which at times was unintelligible.[92] There was evidence of formal thought disorder and delusional beliefs with his insight and judgment being impaired.[93] Dr Pascu stated that information received from Mr Pal's partner at that time suggested that he most likely had been displaying psychotic symptoms for several months prior.[94]
[91] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [24]; ts 62 - 63 (12/6/2023).
[92] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [27].
[93] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [27].
[94] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [28].
Dr Pascu stated that after Mr Pal's first admission to the Frankland Centre, he was discharged to continue treatment at the Rockingham Kwinana Community Mental Health Service but it was reported that he did not engage with the clinic.
Dr Pascu stated that since Mr Pal was admitted to the Frankland Centre after the alleged offending, he has been treated as an involuntary patient under the provisions of the Mental Health Act2014 (WA). Mr Pal presented on admission with florid psychotic symptoms characterised by grandiose and persecutory delusions with religious content.[95]

Drug history

[95] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [31].

Mr Pal reported to Dr Pascu that he commenced experimenting with cannabis from 14 years of age and commenced using methylamphetamine at 27 years of age. Dr Pascu observed that Mr Pal has a history of illicit substance abuse and also a strong biological predisposition for mental illness. Dr Pascu expressed the opinion that both Mr Pal's drug use and his biological predisposition placed him at significant risk of the development of a psychotic disorder.[96] Dr Pascu stated in her testimony that the biological predisposition because of family history means that Mr Pal's brain is vulnerable to develop a mental illness. The taking of illicit substances, however, resulted in the psychotic illness manifesting itself earlier.[97]
[96] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [61].
[97] ts 81 (12/06/2023).
Mr Pal reported that in the two and a half week period since he met the deceased, he consumed methylamphetamine with her on approximately ten occasions.[98]
[98] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [36].
Mr Pal reported to Dr Pascu that at the time of the alleged offences he had 'smoked three to five cones of cannabis', and that he had shared a 'line of ice' with the deceased.[99] Dr Pascu stated that Mr Pal denied being under the influence of other illicit drugs.[100]
[99] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [37].
[100] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [37].
Dr Pascu considered the impact of illicit substances on Mr Pal's mental state at the time of the alleged offences and expressed the opinion that the methylamphetamine might have contributed to the worsening of his underlying untreated psychotic symptoms.[101]
[101] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [62].
Dr Pascu stated that 'Mr Pal's mental illness is not only substance related, as he has been continuously treated since his admission to the Frankland Centre on 4 January 2021 without access to illicit substances'.[102] Since his admission, Mr Pal has not shown significant improvement. During examination in chief, Dr Pascu stated that Mr Pal has not had access to illicit drugs since being admitted to the Frankland Centre and has taken anti-psychotic medication but remains chronically psychotic.[103] Dr Pascu gave evidence that the fact that Mr Pal's 'mental state has not shown significant improvement would go against the consideration of a purely drug induced psychotic state'.[104]
[102] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [63].
[103] ts 67 (12/06/2023).
[104] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [63].
Dr Pascu stated that 75% of patients with psychotic illnesses will use illicit drugs, often to self-medicate.[105] Dr Pascu stated that the use of illicit drugs will not assist the patient. To the contrary, the consumption will 'worsen the already existing psychotic symptoms'.[106]
[105] ts 66 (12/06/2023).
[106] ts 67 (12/06/2023).
Dr Pascu stated that as a clinician, once the concentration of illicit drugs reaches 0.1% the issue of intoxication arises and the impact on the patient's brain must be considered.[107] Dr Pascu stated that it is known that toxicologists consider that a patient with a methylamphetamine concentration of 0.1% is considered to be intoxicated.[108] Dr Pascu stated that it is necessary to seek advice from a toxicologist to provide a detailed analysis regarding illicit substances and intoxication.[109]
[107] ts 72 (12/06/2023).
[108] ts 72 (12/06/2023).
[109] ts 72 (12/06/2023).
Dr Pascu stated that Mr Pal's use of illicit substances may worsen the underlying psychosis but to what degree is unknown.[110]

Diagnosis

[110] ts 73 (12/06/2023).

Dr Pascu, in her report dated 24 August 2021, diagnosed that Mr Pal was suffering from a psychotic disorder, likely schizophrenia with prominent affective symptoms, with differential diagnosis of schizoaffective disorder. Further, Dr Pascu diagnosed that Mr Pal had a mental and behavioural disorder due to substance use (cannabis and methylamphetamine - abstinent).[111]
[111] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [57].
Dr Pascu, in her report dated 26 April 2022, reviewed her diagnosis and stated that Mr Pal has a chronic affective psychotic disorder, namely schizoaffective disorder currently on treatment with chronic psychotic symptoms and no insight. Dr Pascu also confirmed the diagnosis of mental and behavioural disorder due to substance use (cannabis and methylamphetamine - abstinent).[112] In her 24 August 2021 report, Dr Pascu stated that Mr Pal requires lifelong psychiatric treatment for his serious mental illness, most likely paranoid schizophrenia.[113]
[112] Exhibit 5, Report of Dr Pascu dated 26 April 2022, [18] - [19].
[113] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [73].
In examination in chief, Dr Pascu stated that schizophrenia and schizoaffective disorder are similar. If a person has a diagnosis of schizoaffective disorder, then even when the affective symptoms subside, the underlying psychosis remains.[114]
[114] ts 61 (12/06/2023).
Dr Pascu expressed the opinion that at the time of the alleged offences, Mr Pal was suffering from an acute affective paranoid psychotic episode as part of an underlying undiagnosed and untreated mental impairment, namely paranoid schizophrenia.[115] Dr Pascu stated that 'the underlying, undiagnosed and untreated acute, florid psychotic symptoms with a significant affective component contributed to his impaired judgment and his capacity to understand the consequences of his actions'.[116]
[115] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [69].
[116] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [68].
Dr Pascu expressed the opinion that Mr Pal was not deprived of the capacity to know what he was doing and further, that he was not deprived of the capacity to control his actions.[117] In respect to the question as to whether Mr Pal was deprived of the capacity to control his actions, Dr Pascu stated that in her opinion Mr Pal was not suffering a command hallucination to kill the deceased.[118] Dr Pascu stated that in her opinion, it is necessary that there be a command auditory hallucination saying 'you have to kill'.[119] Mr Pal's capacity to control his actions was impaired but absent the command auditory hallucination, it is not possible to find that he was fully deprived of that capacity.[120] Therefore, Dr Pascu stated that she disagreed with Dr Brett's opinion that Mr Pal did not have the capacity to control his actions.[121]
[117] Exhibit 4, Report of Dr Pascu dated 24 August 2021, [70].
[118] ts 70 (12/06/2023).
[119] ts 70 (12/06/2023).
[120] ts 70 (12/06/2023).
[121] ts 71 (12/06/2023).
Dr Pascu did however express the opinion that Mr Pal, at the time of the offending conduct, was deprived of the capacity to know that he ought not to do the acts due to his mental impairment.[122] During her testimony, Dr Pascu stated that at the time of the alleged offending, Mr Pal 'was experiencing an acute psychotic episode with delusions, persecutory, grandiose delusions, possibly auditory hallucinations'.[123]
[122] ts 68 - 69 (12/06/2023).
[123] ts 68 (12/06/2023).

Toxicology evidence

Dr Grasko

Dr Grasko is a qualified Chemist, Pharmacologist and Forensic Toxicologist. Dr Grasko produced a report dated 2 May 2023 and gave evidence at trial.[124] Dr Grasko assessed information received primarily from the report of Dr Brett and from the summary of events.[125]
[124] Exhibit 7, Report of Dr Grasko dated 2 May 2023; ts 86 - 107 (13/06/2023).
[125] Exhibit 7, Report of Dr Grasko dated 2 May 2023, p 25.
Dr Grasko confirmed that the ChemCentre report concerning Mr Pal established that he had two classes of drugs in his system, the first class consisting of diazepam and sesmethyldiazepam, and the second class consisting of methylamphetamine and amphetamine.[126] The methylamphetamine was measured at 0.03 milligrams per litre and the amphetamine was 0.01 milligrams per litre. Dr Grasko gave testimony that the amount of amphetamine in Mr Pal's blood supports a finding that it was a metabolite drug. The presence of the amphetamine is a result of the methylamphetamine metabolising.[127]
[126] ts 87 (13/06/2023).
[127] ts 89 (13/06/2023).
In his report, Dr Grasko stated that Mr Pal's relatively low levels of methylamphetamine and amphetamine and the low conversion rate of methylamphetamine to amphetamine suggests that only a small amount of methylamphetamine was consumed less than 12 hours before the blood test was collected.[128]
[128] Exhibit 7, Report of Dr Grasko dated 2 May 2023.
Dr Grasko stated that intoxication means the physiological and psychological effect that a drug has on an individual.[129]
[129] ts 90 (13/06/2023).
Dr Grasko stated that Mr Pal would have been expected to have exhibited some features of methylamphetamine intoxication at the time of the alleged offending but that the blood analysis alone is not sufficient for this conclusion. The behaviour of the person must also be considered. However, Dr Grasko cautioned that behaviours and actions are rarely of a nature that allows us to be confident that they are consequent on drug intoxication.[130]
[130] Exhibit 7, Report of Dr Grasko dated 2 May 2023, p 6.
Dr Grasko observed that there are many different states of methylamphetamine intoxication, depending on dose, time from dose, chronicity of use and background psychiatric state.[131] The states of intoxication include the very common acute methylamphetamine intoxication. Other consequences include amphetamine induced delusional disorder and stimulant induced delirium.[132]
[131] Exhibit 7, Report of Dr Grasko dated 2 May 2023, p 7.
[132] Exhibit 7, Report of Dr Grasko dated 2 May 2023, p 7.
During his testimony, Dr Grasko stated that both methylamphetamine and amphetamine are central nervous system stimulants that form part of the amphetamine class of drugs.[133]
[133] ts 88 (13/06/2023).
Dr Grasko stated that the level of diazepam recorded would not have a significant clinical effect.[134]
[134] ts 88 (13/06/2023).
The level of amphetamine recorded supports a finding that the presence of the drug was caused by the metabolising of the methylamphetamine rather than amphetamine having been consumed.[135]
[135] ts 89 (13/06/2023).
Dr Grasko stated methylamphetamine users consume the drug to achieve a state of acute methylamphetamine intoxication. Dr Grasko stated that the drug is used as an arousal drug, causing a person to have a euphoric feeling with energy, feeling awake, reduced appetite and increased arousal.[136]
[136] ts 89 (13/06/2023).
This first phase of intoxication lasts 6 to 10 hours from smoking, injecting or swallowing the dose.[137] Persons will experience psychological effects of intoxication which are a mixture of excitation, exhilaration, rapid speech, restlessness, increased energy, increased alertness, a sense of invulnerability and physical strength.[138] This is a period of intense intoxication. The next phase is the 'coming down phase' where the person 'tends towards being sedative and somnolence'.[139]
[137] ts 89 (13/06/2023).
[138] Exhibit 7, Report of Dr Grasko dated 2 May 2023, p 7.
[139] ts 90 (13/06/2023).
Dr Grasko stated the characteristics of Mr Pal's behaviour may be somewhat, but not totally, explained by methylamphetamine intoxication alone, with the simulated phase of intoxication passing after 6 to 10 hours, at which time there is a 'coming down' phase of intoxication.
Dr Grasko stated the description of Mr Pal's behaviour, coupled with the finding of methylamphetamine in his blood, means that Mr Pal would most likely have been experiencing some features of methylamphetamine intoxication at the time of the alleged offending.
Dr Grasko observed that the elements of apparent impulsivity and intense violence are common features of methylamphetamine intoxication.[140] Dr Grasko stated that paranoid false beliefs with hallucinatory experiences 'may encourage decision making inter-transgression but they do not deprive the person of the capacity to form intent, unless the intoxication is so severe that it deprives the person of all capacity for planned action, which is recognised clinically in the state of drug induced delirium'.[141] Dr Grasko stated that this would not be a credible diagnosis in respect of Mr Pal at the time of the alleged offending.
[140] Exhibit 7, Report of Dr Grasko dated 2 May 2023, p 8.
[141] Exhibit 7, Report of Dr Grasko dated 2 May 2023, p 8.
Dr Grasko stated that there is a close relationship between using a drug such as methylamphetamine and mental illness. Methylamphetamine may precipitate psychosis in a person who is susceptible and the drug may reduce the threshold for a person to become psychotic.[142]
[142] ts 93 (13/06/2023).
Dr Grasko stated that Mr Pal's behaviour and significant history of heavy drug use makes amphetamine induced delusional states a possible explanation to his mental state at the time of the alleged offending.
Dr Grasko stated the lower amount of diazepam would have not been expected to have any effect on Mr Pal's mental state at the time of the alleged offending.[143]
[143] Exhibit 7, Report of Dr Grasko dated 2 May 2023, p 9.
Dr Grasko concluded that the effect of methylamphetamine on Mr Pal's deteriorating mental health would most likely have affected the state of intoxication and the duration of the symptoms.[144] Further, Dr Grasko stated Mr Pal had blood levels of methylamphetamine that are seen in some individuals that exhibit acute intoxication. Dr Grasko stated that whilst Dr Brett's diagnosis of schizoaffective disorder and psychosis was most likely, amphetamine induced delusional disorder may need to be considered.[145]
[144] Exhibit 7, Report of Dr Grasko dated 2 May 2023, p 10.
[145] Exhibit 7, Report of Dr Grasko dated 2 May 2023, p 10.

In evidence in chief, Dr Grasko was asked for his opinion in respect to Dr Robertson's statement that at a blood concentration of approximately 0.08 milligrams per litre, significant methylamphetamine-related adverse effects of intoxication were not likely, particularly when the drug is used approximately five or more hours prior the alleged offending.[146]
[146] Exhibit 9, Report of Dr Robertson dated 8 June 2023, p 5.
Dr Grasko disagreed with that opinion stating that it is 'not in keeping with our experience here [in Australia] and international consensus'.[147] He further stated 'methylamphetamine is known to be an extremely intoxicating drug, and almost any level of methylamphetamine in the system would have some element of intoxication and impairment'.[148] Dr Grasko stated that 'it's really a universal[ly] accepted idea that methylamphetamine at any level creates some level of impairment. The UK and a number of other jurisdictions in America have moved towards legislating that number of 0.01, and really, almost any detectible level of methylamphetamine is considered intoxicating'.[149]
[147] ts 96 (13/06/2023).
[148] ts 96 (13/06/2023).
[149] ts 96 (13/06/2023).
Dr Grasko stated that persons react differently to the same doses of drugs. The two significant factors are the pharmacodynamics, which refers to the effect of the drug on the receptors in the brain of the individual, and, pharmacokinetics, being the metabolic rate of an individual. Factors such as gender, age and race may affect the metabolic rate.[150]
[150] ts 91 (13/06/2023).
Dr Grasko accepted that the deceased's concentration of methylamphetamine was significantly higher than the concentration in Mr Pal.[151] Dr Grasko was asked whether that fact supports a finding that the deceased consumed a greater amount of methylamphetamine than the deceased. Dr Grasko stated that it was not possible to make that finding given that a number of different factors affect the route of ingestion and the concentration in the blood. For example, a bigger person in size has a greater blood volume and therefore, if two persons both ingest the same amount of illicit drug, the concentration would be higher in the smaller person.[152] Further, multiple ingestions would change the 'whole dynamic' because there are multiple doses.
[151] ts 100 (13/06/2023).
[152] ts 100 (13/06/2023).
During his testimony, Dr Grasko confirmed that there is a relationship between the concentration ingested and the features of intoxication.[153] Dr Grasko stated that Mr Pal showed features of intoxication which would be consistent with a concentration of 0.03%. Dr Grasko stated that Mr Pal's level of methylamphetamine concentration would be higher at the time of the alleged offending but he was unable to confirm what the level would have been.[154]
[153] ts 102 (13/06/2023).
[154] ts 95 (13/06/2023).
Dr Grasko stated that the amount of drug in the person's system does not necessarily imply a certain effect.[155] Dr Grasko observed that some individuals might experience a significant intoxication with very low concentrations and some individuals might require higher concentrations in order to experience the same effect.[156]
[155] ts 90 (13/06/2023).
[156] ts 90 (13/06/2023).
During his testimony, Dr Grasko stated that tolerance, being the concept that there is a lessening of the effects of a drug on an individual if the individual uses the drug on a regular basis, does not apply to methylamphetamine.[157]
[157] ts 97 (13/06/2023).
During his testimony, Dr Grasko stated that in the United States, methylamphetamine is used therapeutically but not in Australia and most places in the world.[158] Dr Grasko was asked in cross-examination whether a concentration level of 0.1 would be a therapeutic amount. Dr Grasko stated that there would be a range where the concentration level produces a 'positive result, without too much toxicity'.[159]
[158] ts 103 - 104 (13/06/2023).
[159] ts 104 (13/06/2023).
Dr Grasko stated that his observations concerning 'amphetamine induced delusional state' was based on an assumption that Mr Pal had a persistent and heavy history of using methylamphetamine. Dr Grasko made that assumption based on the opinion of Dr Brett.[160] Dr Grasko in cross-examination accepted that Mr Pal's diagnosis of an amphetamine induced delusional disorder and a methylamphetamine related psychosis are matters within the expertise of a psychiatrist.[161]
[160] ts 106 (13/06/2023).
[161] ts 106 - 107 (13/06/2023).
In cross-examination, Dr Grasko accepted that Mr Pal had 'a relatively low amount of both methylamphetamine and amphetamine'.[162] Further, Dr Grasko accepted that there is a relationship between the concentration of methylamphetamine ingested and features of intoxication.[163]

Dr Robertson

[162] ts 107 (13/06/2023).

[163] ts 102 (13/06/2023).

Dr Robertson is a Pharmacologist and Forensic Toxicologist.[164] Dr Robertson produced a report dated 8 June 2023 and gave evidence at trial.[165]
[164] ts 108 - 109 (13/06/2023).
[165] Exhibit 9, Report of Dr Robertson dated 8 June 2023; ts 108 - 125 (13/06/2023).
In his report, Dr Robertson considered the effect of methylamphetamine on Mr Pal and stated:[166]
[166] Exhibit 9, Report of Dr Robertson dated 8 June 2023.
1.1Methylamphetamine was detected in the blood of Mr Pal at a concentration of 0.03 mg/L in blood collected at or about 7:20 pm on 2 January 2021.
1.2Once administered, an amount of methylamphetamine is converted to amphetamine by the liver and as such the presence of amphetamine in the blood is often related to the use of methylamphetamine. I note also that Mr Pal was using amphetamine prior to [the] alleged assault.
1.3When it is assumed that assault occurred between 3 am and 5 am, approximately 14 to 16 hours prior to the collection of the blood at 7:20 pm, it is likely that methylamphetamine concentration was higher that 0.03 mg/L and likely closer to 0.08 mg/L, assuming no use after the alleged assault.
1.4Methylamphetamine is a synthetic central nervous system stimulant referred to colloquially as 'Speed', 'Ice' or Crystal Meth' among others.
1.5 Typical 'positive' effects of methylamphetamine may include improved mood, improved alertness and a decreased need for sleep, increased confidence and feeling of well-being and euphoria.
1.6Typical 'negative' effects may include: impaired judgment, impaired ability to concentrate or pay attention, sweating, rapid speech, repetitive movement with or with jaw grinding, dilated pupils, elevated heart rate and blood pressure, flushed appearance, insomnia, nausea, vomiting, irritability, restlessness, increased aggression. Paranoia, agitation, confusion and psychosis typically occur at high concentrations or following high doses[.]
1.7In addition to methylamphetamine-related psychosis that may occur following high doses of methylamphetamine, psychosis may also occur following extended periods of binge use i.e. many hours or days of ongoing use.
1.8Blood concentrations associated with use of methylamphetamine for therapeutic purposes are variably quoted as up to 0.1 mg/L. Following the recreational use of methylamphetamine, blood concentrations typically exceed 0.1 mg/L.
1.9As such, a blood concentration for approximately 0.08 mg/L would be regarded as low and consistent with concentrations associated with 'therapeutic' use i.e. when methylamphetamine was explored for its clinical benefits such as improved alertness, attention and concentration. This is consistent with the reference by Dr Grasko to the 'relatively low amount of methylamphetamine and amphetamine'.
1.10At a blood concentration of approximately 0.08 mg/L, significant methylamphetamine-related adverse effects or 'intoxication' are not likely, particularly when the drug was last used approximately 5 or more hours prior to the alleged assault.
In respect to the detection of diazepam and desmethyldiazepam, Dr Robertson stated that given the long half-life of diazepam and desmethyldiazepam, the concentrations present at the time of the alleged offending would not have been materially higher than the measurements.[167]
[167] Exhibit 9, Report of Dr Robertson dated 8 June 2023, p 6.
Dr Robertson stated it is not likely the presence of diazepam would have had any material effect on Mr Pal at the time of the alleged offending, either alone or in combination with methylamphetamine.[168]
[168] Exhibit 9, Report of Dr Robertson dated 8 June 2023, p 6.
Dr Robertson stated the presence of methylamphetamine in the blood of Mr Pal was consistent with some prior use of methylamphetamine and is consistent with Mr Pal's admission that he used methylamphetamine at or about 10.00 pm on the night prior to the incident. Further, the estimated concentration of methylamphetamine in the blood of Mr Pal at the time of the alleged offending would not likely cause any significant impairment and is not consistent with concentrations associated with psychosis.[169]
[169] Exhibit 9, Report of Dr Robertson dated 8 June 2023, p 6.
In his evidence in chief, Dr Robertson stated that therapeutic concentrations of methylamphetamine involve 0.05 to 0.1 milligrams per litre. Dr Robertson observed that methylamphetamine is not used therapeutically in Australia.
In his evidence in chief, Dr Robertson stated that the level of methylamphetamine in Mr Pal's system would act as a mild stimulant with increased energy, confidence and repetitive behaviours.[170] Dr Robertson said the level of concentration is 'certainly not at a level that I would expect profound effects of methylamphetamine to have been present'.[171]
[170] ts 114 (13/06/2023).
[171] ts 114 (13/06/2023).
During his testimony, Dr Robertson stated that a heavy user of methylamphetamine may have 0.5 milligrams and higher, and sometimes may exceed one milligram per litre in persons who are profoundly intoxicated.
Dr Robertson stated that the positive effects, that being the primary effects of methylamphetamine, generally last about 'maybe four to six hours'.[172]
[172] ts 118 (13/06/2023).
Dr Robertson stated that the likelihood of drug related psychosis at the time of the alleged offending is very low. Further, assuming Mr Pal was a regular user of dexamphetamine, he would likely have had an amount of tolerance to the effects of methylamphetamine, further reducing the likelihood of significant toxicity relative to an occasional user at a blood concentration of 0.08 mg/L.[173]
[173] Exhibit 9, Report of Dr Robertson dated 8 June 2023, p 7.
Dr Robertson stated assuming the use of methylamphetamine at 10.00 pm, being approximately five or more hours prior to the alleged offending, it is not likely that any significant stimulating affects remained at the time of the incident.[174]
[174] Exhibit 9, Report of Dr Robertson dated 8 June 2023, p 7.
In conclusion, Dr Robertson stated he did not believe Mr Pal was significantly affected, or intoxicated, at the time of the alleged offence by one or more drugs detected in his blood.[175]
[175] Exhibit 9, Report of Dr Robertson dated 8 June 2023, p 7.
Dr Robertson concluded as follows:[176]
Whilst it is possible that Mr Pal was experiencing some affects from the presence of methylamphetamine in his blood, either mild residual stimulation or rebound fatigue etc, none of: the blood concentration, particularly in a tolerant use of methylamphetamine; the pattern of use prior to the alleged assault (a snort at about 10 pm with no evidence of further use or binge use); the time frame of last use (5 or more hours prior to the alleged assault), are predictive of methylamphetamine related intoxication or psychosis at the time of the alleged incident.
[176] Exhibit 9, Report of Dr Robertson dated 8 June 2023, p 7.
Dr Robertson stated that given the presence of a reasonable term or cause for the described psychosis, it is more likely that Mr Pal's mental state at the time of the alleged assault was due to alternative causes than methylamphetamine intoxication or methylamphetamine related psychosis.[177]
[177] Exhibit 9, Report of Dr Robertson dated 8 June 2021, p 7.
In respect to the level of methylamphetamine in the deceased's sample taken during her autopsy, Dr Robertson stated 0.35 was a moderate level if she was a regular user. However, if this was the first time that Ms Robinson consumed methylamphetamine, then the level would be relatively high.[178]
[178] ts 113 (13/06/2023).
In cross-examination, Dr Robertson agreed that persons consume methylamphetamine for the effect.[179] Dr Robertson accepted that the effect that an amount of methylamphetamine will have on a person varies between individuals.[180] Dr Robertson did not disagree with the opinion of Dr Grasko that the blood concentration of methylamphetamine is not necessarily indicative of the level of intoxication. Dr Robertson stated other factors are relevant, such as the time the drug was taken and the individual's level of tolerance.
[179] ts 122 (13/06/2023).
[180] ts 122 (13/06/2023).
In cross-examination, Dr Robertson stated that it is possible that the ingested methylamphetamine would have exacerbated Mr Pal's symptoms but that he would not have expected the 'effect of the drug to have been significant on him, particularly seven hours after taking the dose'.[181] Dr Robertson accepted that it was a possibility that the consumption of the methylamphetamine would have made Mr Pal's psychosis worse.
[181] ts 125 (13/06/2023).
In cross-examination, Dr Robertson was asked whether he agreed that in respect to his mind and his disorder, Mr Pal was intoxicated. Dr Robertson stated: '[N]ot by the drug. The drug concentration… is low. I wouldn't expect it as to contribute to any psychosis but I can't exclude it as a possibility that it may have contributed a small amount'.[182] Dr Robertson stated that he was of the opinion that it would be unlikely that the methylamphetamine would 'even contribute to a level of psychosis, given the amount present in the blood'.[183]
[182] ts 125 (13/06/2023).
[183] ts 125 (13/06/2023).

Assessment and findings

I now turn to consider the three issues, first, whether Mr Pal was mentally impaired; second, if mentally impaired, whether the impairment deprived him of any of the capacities specified in s 27(2) of the Criminal Code; and third, if he is deprived of one or more of the capacities, whether Mr Pal is precluded from relying on unsoundness of mind because he intentionally caused himself to become intoxicated at the time he did the relevant acts within the meaning of s 28(2) of the Criminal Code.

First issue - whether Mr Pal was mentally impaired

The first issue I must determine is whether Mr Pal was mentally impaired within the meaning of s 27(1) of the Criminal Code.
Both counsel for the State and Mr Pal submitted that it is open for the Court to make a finding that Mr Pal was, at the relevant time, mentally impaired within the meaning of s 27(1) of the Criminal Code. Counsel for Mr Pal submitted that his mental impairment predated the period of the offending by 'some considerable period'.[184] Further, the evidence of Dr Brett and Dr Pascu supported a finding that Mr Pal was acutely psychotic at the relevant time.[185] Counsel for the State submitted that Mr Pal was 'clearly psychotic at the time of the offending, so none of that is in dispute'.[186]
[184] ts 137 (13/06/2023).
[185] ts 138 (13/06/2023).
[186] ts 127 (13/06/2023).
I accept the evidence of Dr Brett and Dr Pascu that at the time of the killing and the act of arson, Mr Pal was acutely psychotic. Both psychiatrists expressed the opinion that Mr Pal had a mental impairment, namely schizoaffective disorder.
Dr Brett diagnosed that Mr Pal was suffering from a schizoaffective disorder and substance abuse disorder (marijuana, dexamphetamines and methylamphetamine). Dr Brett stated that at the time of the offences, Mr Pal had a mental disorder, namely the mental illness schizoaffective disorder. Dr Brett stated that schizoaffective disorder is a combination between schizophrenia and bipolar affective disorder.
Dr Pascu's reviewed diagnosis was that Mr Pal has a chronic psychotic disorder, namely schizoaffective disorder. Dr Pascu also diagnosed that Mr Pal suffered from a mental and behavioural disorder due to substance use, namely cannabis and methylamphetamine (abstinent). Dr Pascu stated that at the time of the alleged offences Mr Pal was suffering from an acute affective paranoid psychotic episode as part of an underlying undiagnosed and untreated mental impairment, namely paranoid schizophrenia.
I find that Mr Pal was suffering from a mental impairment, namely a schizoaffective disorder, at the time he did the relevant acts in respect to the count of murder and the count of arson.
However, the issue remains whether Mr Pal suffered from a mental impairment independently of and without regard to his intoxication. I will deal with this third issue below.

Second issue - whether the mental impairment deprived Mr Pal of any of the capacities in s 27(1)

I now turn to the second issue, being whether that impairment deprived Mr Pal of any of the capacities specified in s 27(1) at the time that he did the respective acts constituting the count of murder and the count of arson.
Counsel for the State submitted that the evidence of Dr Brett and Dr Pascu supports a finding that Mr Pal was deprived of the capacity to know that he ought not do the act.[187] However, counsel for the State observed that Dr Pascu and Dr Brett expressed contrary opinions as to whether Mr Pal did not have the capacity to control his actions. The State submitted that it was open to find that Mr Pal could not control his actions. Counsel for Mr Pal submitted that the Court should make the finding that Mr Pal was deprived of the capacity to know that he ought not do the act. Counsel for Mr Pal did not make submissions in respect to whether Mr Pal did not have the capacity to control his actions.
[187] ts 127 (13/06/2023).
The evidence of Dr Brett and Dr Pascu supports a finding that Mr Pal was deprived of the capacity to know that he ought not do the act.
Dr Brett stated that Mr Pal believed that he was doing the right thing and that he was the son of God on a divine mission, believing that the deceased was part of a conspiracy to kill him. Mr Pal thought that his life was in imminent danger. Therefore, Mr Pal killed the deceased and lit the fire. Dr Brett expressed the opinion that the act of arson was not part of an attempt to conceal the evidence but rather a 'signal' to authorities that was consistent with the psychotic phenomena that Mr Pal was experiencing.
Dr Pascu stated that the underlying undiagnosed and untreated acute psychotic symptoms, with significant affective component, deprived him of the capacity to know that he ought not do the act.
I am satisfied that Mr Pal's mental impairment deprived him of the capacity to know that he ought not do the act. I am satisfied that he was deprived of that capacity in respect to both the act of killing and the act of arson.
Dr Brett and Dr Pascu expressed differing opinions as to whether Mr Pal could not control his actions. Dr Brett stated that Mr Pal's mental impairment deprived him of the capacity to control his actions given that he was overwhelmed by his psychotic processes and therefore, was unable to exercise control from killing the deceased or lighting the fire. Dr Pascu disagreed, expressing the opinion that there was no evidence that Mr Pal was having command auditory hallucinations specifically telling him to do the act and therefore, Mr Pal was not deprived of the capacity to control his actions.[188]
[188] ts 70 (12/06/2023).
Given the differing expert opinions, I am not satisfied that Mr Pal did not have the capacity to control his actions. The opinion of Dr Pascu raises doubt as to whether Mr Pal did not have the capacity to control his actions. I am satisfied, however, that the mental impairment deprived Mr Pal of the capacity to know that he ought not do the act.

However, the issue remains whether Mr Pal has proven that at the time of doing the relevant act was he suffering the mental impairment which deprived him of the capacity to know that he ought not do the act independently of and without regard to his intoxication.

Third issue - intoxication

I now turn to the issue of intoxication. I have outlined the relevant legal principles and in particular the definition of intoxication. The issue is whether Mr Pal has proven on the balance of probabilities that he did not intentionally cause himself to become intoxicated within the meaning of s 28(2) of the Criminal Code. Further, that if he was intentionally intoxicated has he proven that his mental impairment suffered was independently of and without regard to his intoxication and that the mental impairment deprived him of the capacity independently of and without regard to his intoxication. I will outline the respective submissions of counsel for the State and Mr Pal at trial prior to determining this issue.

Submissions for the State

Counsel for the State submitted that it was not in dispute that Mr Pal had a mental impairment at the time of the offending, namely schizoaffective disorder, and that at the time of the offending the mental impairment deprived Mr Pal of the capacity to know that he ought not do the acts which constitute the counts on the indictment.[189]
[189] ts 127 (13/06/2023).
The State submitted that it was not the State case that the psychosis suffered by Mr Pal at the time of the offending was a drug induced psychosis.[190] Rather, the State contended that the consumption of the methylamphetamine, 'exacerbated the psychotic symptoms'.[191] The State also submitted that whilst the ChemCentre result did not record a positive for cannabis, Mr Pal reported to Dr Brett that he had consumed cannabis on the night.[192] The State submitted that cannabis may exacerbate psychotic symptoms but that the primary illicit drug consumed by Mr Pal that exacerbated the symptoms was methylamphetamine.[193]
[190] ts 128 (13/06/2023).
[191] ts 128 (13/06/2023).
[192] ts 128 (13/06/2023).
[193] ts 128 (13/06/2023).
The State submitted that Mr Pal consumed methylamphetamine with the intention to become intoxicated and that evidence supported a finding that Mr Pal was intoxicated.[194] The State relied upon the behaviour of Mr Pal after consuming the methylamphetamine and further, Mr Pal's reporting to Dr Brett that he was intoxicated.
[194] ts 129 (13/06/2023).
The State submitted that the behaviour of Mr Pal, including not being able to sleep, showing restlessness by cleaning the house, and further engaging in violence, was consistent with methylamphetamine intoxication.[195] In short, the State submitted that Mr Pal, after consuming the methylamphetamine, commenced exhibiting in his behaviour the influence of the methylamphetamine. The State contends that the acts of violence occurred within hours of consuming the prohibited drug.
[195] ts 130 (13/06/2023).
Second, the State placed reliance on Mr Pal's admission to Dr Brett that he was intoxicated and the description given by Mr Pal concerning the effect of his consumption of the methylamphetamine.
Counsel for the State referred to Dr Grasko's testimony that the amount or level of drugs in a person does not necessarily imply a certain effect. Rather, an individual may experience significant intoxication at low levels of toxicity.[196] A large number of factors are relevant, including the fact that a person who is mentally unwell may be affected by a low amount of methylamphetamine.
[196] ts 132 (13/06/2023).
The State submitted that if a finding is made that Mr Pal has failed to prove that he was not intoxicated, then this is a case where he would be unable to disentangle the effect of the methylamphetamine from the mental illness.[197] That is, Mr Pal has not proven that the mental impairment suffered and the depriving of his capacity to know that he ought not do the act was independently of and without regard to his intoxication. Thus, by reason of s 28(2) of the Criminal Code, Mr Pal is precluded from relying upon s 27(1) of the Criminal Code to relieve him of criminal responsibility.
[197] ts 135 (13/06/2023).
Counsel submitted that the Court should be satisfied that Mr Pal had the requisite intent in respect to both counts.[198]

Submissions for Mr Pal

[198] ts 136 (13/06/2023).

Counsel for Mr Pal submitted that a number of issues were not in dispute. First, that Mr Pal's mental health issues predated the incident by some time. Second, that Mr Pal was suffering from a mental impairment, namely schizoaffective disorder at the relevant time, and that the mental impairment deprived Mr Pal of the capacity to know that he ought not to do the act.[199] Third, that Mr Pal continues to suffer from the mental impairment some 'two and half years down the track'.[200] Counsel for Mr Pal submitted that the issue at trial is whether Mr Pal was intoxicated by methylamphetamine at the relevant time.[201]
[199] ts 138 (13/06/2023).
[200] ts 139 (13/06/2023).
[201] ts 137 (13/06/2023).
Counsel for Mr Pal submitted that it was not in dispute that Mr Pal had a history of consuming illicit drugs and that illicit drugs have a negative impact on a person's mental illness.[202]
[202] ts 137 (13/06/2023).
Counsel stated that the evidence supported the finding that prior to the offending, Mr Pal had shared a point of methylamphetamine with the deceased. It was contended that the respective blood readings of Mr Pal and the deceased supported a finding that the deceased consumed a greater amount of the illicit substance.
Counsel for Mr Pal submitted that although Mr Pal had consumed methylamphetamine, he was not intoxicated at the relevant time. In support of that finding, counsel submitted that the amount of methylamphetamine consumed was low. Further, that Mr Pal consumed the methylamphetamine at approximately 10.00 pm and the offending occurred between approximately between 4.00 am and 5.00 am. Counsel submitted that notwithstanding that Mr Pal reported to Dr Brett that he was intoxicated and that he was energised, carrying out tasks such as cleaning and not needing sleep, he was not intoxicated at the relevant time. Counsel submitted that the offending would have occurred in any event due to the mental impairment.[203]
[203] ts 140 (13/06/2023).
Counsel accepted that if the Court found that Mr Pal was intoxicated then it would be difficult for Mr Pal to prove that it was a 'mental impairment' that was independently of and without regard to intoxication which caused the accused to be deprived of the relevant capacity.[204]
[204] ts 142 (13/06/2023).
Therefore, the contention of Mr Pal is that, notwithstanding that he consumed methylamphetamine, he was not 'intoxicated'.

Intoxication - Assessment and Findings

In respect to the illicit drug history of Mr Pal, there is no dispute that he is a long-term user of methylamphetamine. Mr Pal has acknowledged that he is a long-term user of methylamphetamine. Mr Pal reported to Dr Pascu that he commenced experimenting with cannabis from 14 years of age and commenced using methylamphetamine at 27 years of age. Mr Pal told Dr Brett that in 2017, he commenced using methylamphetamine by 'snorting' the substance and that he had used the drug intravenously on one occasion. Further, Mr Pal stated that since 2014, he had consumed cocaine on a 'binge basis'. I accept the reliability of Mr Pal's reporting regarding his long-term use of methylamphetamine and I find that Mr Pal is a long‑term user of methylamphetamine.
Mr Pal confirmed that he was a frequent user of methylamphetamine in the weeks prior to the alleged offending. Mr Pal reported to Dr Pascu that in the two and half week period since he met the deceased, he consumed methylamphetamine with her on approximately ten occasions. Further, Mr Pal reported to Dr Brett that he had used dexamphetamines with the deceased in the weeks prior to the offending. I accept the reliability of Mr Pal's reporting and make the finding that he did consume the amphetamines with the deceased in the two and half week period prior to the alleged offences.
The agreed facts at trial are that on 1 January 2021, Mr Pal and the deceased used cannabis together and that at about 10.00 pm on 1 January 2021, they shared a point of methylamphetamine 'by snorting' it. The agreed facts are consistent with Mr Pal's reporting to Dr Brett that he shared a point with the deceased at 10.00 pm, being approximately five hours prior to the alleged murder offending, and his reporting to Dr Pascu that he had shared a 'line of ice' with the deceased.
Counsel for Mr Pal submitted that a finding may be made that Mr Pal consumed less methylamphetamine than the deceased. In support of that proposed finding, counsel relied on the results of the ChemCentre toxicology reports. A blood sample was taken from Mr Pal at 7.20 pm on 2 January 2021 with the sample recording methylamphetamine at 0.03 mg/l. A blood sample was taken from the deceased during the autopsy with the sample recording methylamphetamine at 0.35 mg/l.
I am unable make the finding that the deceased consumed a greater amount of methylamphetamine than Mr Pal. The different ChemCentre toxicology reports may be the consequence of numerous factors. I accept the testimony of Dr Grasko that it was not possible to make the finding that the deceased must have consumed a greater amount of methylamphetamine based on the ChemCentre toxicology reports given that a number of different factors affect the route of ingestion and the concentration of blood. For example, the size of the respective persons and whether multiple ingestions occurred.
I am also mindful that the blood sample was taken approximately 12 hours after the alleged offending. I accept Dr Grasko's testimony that Mr Pal's level of methylamphetamine concentration would have been higher at the time of the alleged offending.
I accept Dr Grasko's testimony that the amount of drug in a person's system does not necessarily imply a certain effect. Dr Grasko observed that some individuals 'might experience a significant intoxication to almost toxicity levels amid very low concentrations, and some individuals might require higher concentrations in order to experience [the] same effects'.[205]
[205] ts 90 (13/06/2023).
Dr Grasko observed that methylamphetamine is known to be an extremely intoxicating drug. Dr Grasko stated that almost any level of methylamphetamine in the system would have some element of intoxication and impairment. Further, Dr Grasko stated that Mr Pal had blood levels of methylamphetamine that are seen in some individuals that exhibit acute intoxication.[206]
[206] Exhibit 7, Report of Dr Grasko dated 2 May 2023, p 10.
Dr Grasko expressed the opinion that Mr Pal would have been expected to have exhibited some features of methylamphetamine intoxication at the time of the alleged offending but that the blood analysis alone is not sufficient for this conclusion. Dr Grasko stated that the behaviour of the person must also be considered. However, Dr Grasko cautioned in respect to assessing behaviours. Mr Pal exhibited paranoid and aggressive behaviour after consuming the methylamphetamine. The conduct and demeanour of Mr Pal changed during the night after the consumption of methylamphetamine.
Dr Grasko stated that the description of Mr Pal's behaviour after consuming the methylamphetamine supports a finding that Mr Pal was intoxicated at the time of the alleged offending. I find that Mr Pal was displaying behaviour that was consistent with intoxication. In making that finding, I am mindful of the timing of the behavioural change that followed Mr Pal's consumption of the methylamphetamine.
In my opinion it is highly significant that Mr Pal told Dr Brett that he was intoxicated with methylamphetamine and marijuana. Dr Brett gave testimony that Mr Pal stated that he had been using substances the night before, namely 'he had smoked marijuana and had snorted methylamphetamine'. Mr Pal told Dr Brett that he believed that he had last used methylamphetamine at 10.00 pm and that 'he felt intoxicated'. Mr Pal informed Dr Brett that the consequence of the drug consumption was that 'he had increased energy, he did not sleep and was cleaning up the house'.
As I have outlined, during cross-examination, Dr Brett was asked whether Mr Pal was able to report with accuracy whether he was intoxicated at the time of the offending. Dr Brett stated that 'intoxication is subjective' and that 'we know when we're intoxicated'. Therefore, Mr Pal 'would have been the best person to say [whether he was intoxicated]'.
I am mindful that the clinical interview with Mr Pal was conducted on 19 December 2022, being approximately two years after the alleged offending and that Mr Pal suffers from a mental impairment. Even given the passage of time, I am satisfied that Mr Pal has accurately recalled the events of the relevant time period.
I am satisfied that Mr Pal stated that he was intoxicated (with methylamphetamine) because that was his understanding or appreciation of the effect that the illicit drugs had on him that night.
I do not accept Dr Robertson's testimony that Mr Pal was not intoxicated. Dr Robertson gave significant weight to the amount of methylamphetamine consumed by Mr Pal and the deceased. Dr Robertson's opinion in that regard must be considered in light of Dr Grasko's testimony that a person with a mental illness has a lower threshold for becoming psychotic if methylamphetamine is consumed. Dr Robertson's opinion must also be considered in light of the behaviour of Mr Pal after he consumed the methylamphetamine and also significantly, in light of his reporting to Dr Brett, that he was intoxicated.
Dr Brett stated that Mr Pal's 'drug use would have exacerbated his underlying illness' at the time of the alleged offending. Dr Brett stated that whilst Mr Pal's behaviour was driven by his mental disorder, his drug use would have worsened his mental illness and that he relapsed due to not being on his medication and consuming illicit substances. I make the finding that the consumption of illicit substances, specifically methylamphetamine, exacerbated Mr Pal's mental impairment. I adopt the definition of exacerbated given by Dr Brett, namely that the symptoms become 'more florid and more obvious', with the symptoms worsening with the result that Mr Pal is 'more likely to act in a violent manner and do irrational things and more likely to act on his psychotic beliefs'.[207]
[207] ts 43 (12/06/2023).
I am satisfied that Mr Pal, at the time of the alleged offences (murder and arson), became intentionally intoxicated by methylamphetamine. I am satisfied that Mr Pal's intoxication worsened or exacerbated the effects of his mental illness. I am satisfied that the consumption of methylamphetamine caused a deterioration in Mr Pal's mental illness, particularly as the illness was untreated. I make that finding based upon the testimony of Dr Brett and Dr Pascu.
I find that at the time of the alleged offences the methylamphetamine that Mr Pal had consumed had an overpowering effect upon Mr Pal's mind. I find that it is not possible in this case to disentangle the effects of the methylamphetamine from Mr Pal's mental illness.
I am satisfied that Mr Pal has not proven that he suffered from the mental impairment at the relevant time independently of and without regard to his intoxication. Further, I am not satisfied that Mr Pal has proven that at the time of doing the relevant acts that he was in such a state of mental impairment as to deprive him of the capacity that he knew that he ought not do the acts that constituted the two alleged offences, independently of and without regard to his intoxication.
Thus, by reason of s 28(2) of the Criminal Code, Mr Pal is precluded from relying upon s 27(1) of the Criminal Code to relieve him of criminal responsibility for both counts on the indictment.

Specific intention element for murder and arson

Accordingly, having rejected Mr Pal's plea that he was not guilty of count one and count two by reason of unsoundness of mind, I now turn to consider whether Mr Pal had one of the requisite specific intentions regarding the count of murder and arson.
Mr Pal has not contended that at the relevant time, he was intoxicated with methylamphetamine and that he was unable to form the relevant intention.
I am satisfied, beyond a reasonable doubt, that the only reasonable inference to be drawn is that, at the time Mr Pal did the acts that caused the death of the deceased, he had the intention to kill. This finding is wholly consistent with the factual circumstances of the offending.
As I have observed, s 443 of the Criminal Code defines the element 'wilfully' as meaning where a person does an act intending to destroy or damage property; or knowing or believing that the act is likely to result in the destruction of or damage to property, and the act results in the destruction of or damage to property. I am satisfied beyond a reasonable doubt that at the time that Mr Pal did the acts that caused the fire at the property, he had the intention to damage property.

Conclusion

Therefore, I find Mr Pal guilty of the count of murder and guilty of the count of arson.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Honourable Justice McGrath
24 NOVEMBER 2023

BLOOD NON PRESERVED) (F1136505-9) Lab No 22T1406001)
ALCOHOL	Not Detected
DIAZEPAM	Detected
DESMETHYLDIAZAPAM	Detected >0 01 mg/L
METHLYAMPHETAMINE	Detected
AMPHETAMINE	Detected
TETRAHYDROCANNABINOL	Not Detected
OTHER COMMON BASIC DRUGS	Not Detected
BLOOD NON PRESERVED) (F1136505-9) Lab No 22T1406002)
ALCOHOL	Not Detected
METHLYAMPHETAMINE	0 03 mg/L
AMPHETAMINE	0.01 mg/L

BLOOD (AORTA NON PRESERVED) (Lab No 20T4641001)
CARBON MONOXIDE	> 5 percent saturation
DIAZEPAM	Detected
DESMETHYLDIAZAPAM	Detected
METHLYAMPHETAMINE	Detected
AMPHETAMINE	Detected
MIRTAZAPINE	Detected
OTHER COMMON BASIC DRUGS	Not Detected
BLOOD (AORTA PRESERVED) (Lab No 20T4641002)
DIAZEPAM	Approx 0.02 mg/L
DESMETHYLDIAZAPAM	Approx 0.01 mg/L
MIRTAZAPINE	Approx 0.02 mg/L
MIRTAZAPINE METABOLITE	Detected
COMMON AMPHETAMINES	Not Analysed
OTHER COMMON DRUGS	Not Detected
BLOOD (FEMORAL PRESERVED) (Lab No 20T4641003)
ALCOHOL	Not Detected
CANNABINOIDS BY IMMUNOASSAY	Negative
AMPHETAMINE	0.05 mg/L
METHYLAMPHETAMINE	0.35 mg/L