The State of Western Australia v Pearson
[2022] WASC 191
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PEARSON [2022] WASC 191
CORAM: CORBOY J
HEARD: 17 & 18 MAY 2022
DELIVERED : 1 JUNE 2022
FILE NO/S: INS 4 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
ROBERT MATTHEW PEARSON
Accused
Catchwords:
Criminal Law -Trial by judge alone - Attempt to unlawfully kill - Whether accused of unsound mind - Whether accused in a state of mental impairment - Whether accused deprived of the capacity to know that he ought not to do the acts that constituted the attempt - Expert psychiatric evidence that the accused was suffering psychotic depression and lacked relevant capacity
Legislation:
Criminal Code (WA), s 1, s 27
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 21
Criminal Procedure Act 2004 (WA), s 93, s 118, s 119 & s 120
Result:
Accused not guilty of the attempted unlawfully killing of Jacob Matthew Pearson and Abide′ Jayne Pearson on account of unsoundness of mind
Custody order made
Category: B
Representation:
Counsel:
| Prosecution | : | Mr P M Usher |
| Accused | : | Mr S F Rafferty |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Seamus Rafferty & Associates |
Case(s) referred to in decision(s):
AK v The State of Western Australia [2008] HCA 8; [2008] 232 CLR 438
Evans v The State of Western Australia [2010] WASCA 34
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Radford (1985) 20 A Crim R 388
Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 538
The State of Western Australia v Djurasovic [2021] WASC 406
The State of Western Australia v Haast [2020] WASC 161
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Jones [2018] WASC 395
The State of Western Australia v Lang [No 2] [2016] WASC 206
The State of Western Australia v Taylor [2021] WASC 470
Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254
CORBOY J:
The charges, pleas, trial and verdicts
Robert Matthew Pearson is charged that:
(1)On 15 December 2020, at Rossmoyne, he attempted unlawfully to kill Jacob Matthew Pearson.
(2)On the same date and at the same place as in count (1), he attempted unlawfully to kill Abide Jayne Pearson.
Mr Pearson applied for a trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA). The application was allowed in the interests of justice having regard to the following matters:
(a)Mr Pearson admitted the acts alleged by the State to constitute the attempt to unlawfully kill Ms Abide Pearson (Abbey) and Mr Jacob Pearson (Jacob) - the act of stabbing Abbey to the right side of her neck and the act of stabbing Jacob to the chest;
(b)Mr Pearson also admitted that he had committed those acts in the circumstances alleged by the State;
(c)the sole issue to be determined in the trial was whether Mr Pearson was criminally responsible for his acts - that is, whether he was of unsound mind at the time of stabbing Abbey and Jacob (s 27(1) of the Criminal Code);
(d)there was no factual issue to be decided that required the application of objective community standards;
(e)Mr Pearson did not object to the tender of the prosecution brief as evidence in the trial;
(f)the only witnesses required to give oral evidence were Dr Steven Patchett and Dr Adam Brett (forensic psychiatrists who had provided opinions on the issues raised by s 27(1) of the Code);
(g)the State did not oppose the application and did not advance any reason why it was not in the interests of justice for an order to be made under s 118 CPA.
Mr Pearson pleaded not guilty to each charge on account of unsoundness of mind on being arraigned.[1] He admitted, pursuant to s 32 of the Evidence Act 1906 (WA), that he had stabbed Abbey and Jacob and he did not dispute the State’s allegations about the circumstances in which he had acted. There was no issue between the parties about the history given by Mr Pearson to Dr Patchett and Dr Brett for the purpose of providing their opinions. The State did not require Mr Pearson to give evidence to lay the factual foundation for those opinions. Consistent with the application for trial by judge alone, the only issue to be determined was Mr Pearson's criminal responsibility for his admitted acts.
[1] CPA, s 126(1)(d).
It is for me to determine that issue. However, both parties submitted at the end of the evidence that it was open to find Mr Pearson not guilty of the charges made against him on account of unsoundness of mind. That submission accorded with my conclusion. There was no substantive difference in the opinions expressed by Dr Patchett and Dr Brett - they agreed that Mr Pearson suffered from a mental illness at the relevant time (psychotic depression) as a result of which he lacked the capacity to know that he ought not to have stabbed Abbey and Jacob.
I find Mr Pearson:
(1)not guilty of the charge of attempting to unlawfully kill Jacob Matthew Pearson on account of unsoundness of mind;
(2)not guilty of the charge of attempting to unlawfully kill Abide Jayne Pearson on account of unsoundness of mind.
I enter a judgment of acquittal on account of unsoundness of mind on each count on the indictment.[2]
[2] CPA, s 147(2).
Trial by judge alone
The conduct of the trial by a judge sitting alone is governed by Pt 4, div 7 CPA. Relevantly, s 119(1) provides that in a trial by judge alone the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. Further, s 120 of the CPA states:
(1)In a trial by a judge alone -
(a)the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and
(b) any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.
(2)The judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.
Section 93 CPA may also apply to the conduct of a trial by judge alone where an accused person pleads not guilty to a charge on account of unsoundness of mind. The section 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 The Criminal 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
…
(2)Subsection (1) is in addition to and does not affect the operation of section 146.
I am satisfied that it is in the interests of justice to adopt and apply the provisions of s 93(1) to determine whether Mr Pearson was criminally responsible for his acts of stabbing Abbey and Jacob. The prosecutor consented to the application of s 93(1) and Mr Pearson did not object.
In AK v The State of Western Australia,[3] Gummow and Hayne JJ observed that the effect of s 120(2) CPA is ordinarily to require a trial judge to identify and record the elements of the offence in question and outline which of those elements are in issue. It is also necessary that the reasons contain a statement of the principles of law that have been applied, the findings of fact that are made and 'the reasoning process linking them and justifying the [findings of fact] and ultimately, the verdict that is reached'.[4]
[3] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438. See also the reasons of Seytler P Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525.
[4] Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 [28].
The offence of attempting to unlawfully kill
Section 283(1) of the Criminal Code provides that any person who attempts to unlawfully kill another is guilty of a crime. Section 268 of the Criminal Code provides that it is unlawful to kill a person unless the killing was authorised or justified or excused by law. Section 270 of the Code provides that any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.
The State must prove each of the following matters beyond a reasonable doubt to prove that an accused person is guilty of the offence of attempted unlawful killing:
(a)the accused did an act that was more than merely preparatory to killing the victim; and
(b)the act was done with the intention of killing the victim; and
(c)the killing of the victim would have been unlawful.
Section 27 of the Criminal Code – onus and standard of proof
Section 26 of the Criminal Code provides that every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved. Section 27(1) provides that:
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.
Section 1 of the Code defines:
(a)'mental impairment' to mean 'an intellectual disability, mental illness, brain damage or senility';
(b)'mental illness' to mean 'pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary' – the definition expressly excludes 'a condition that results from the reaction of a healthy mind to extraordinary stimuli';
(c)'criminally responsible' to mean 'liable to punishment as for an offence'.
The effect of s 26 of the Code is that Mr Pearson bears the onus of proving, on the balance of probabilities, that he is not criminally responsible for his acts of stabbing Abbey and Jacob. The effect of s 27(1) of the Criminal Code is that Mr Pearson's acts of stabbing Abbey and Jacob will be excused in law if he was in such a state of mental impairment at the time of acting that he was deprived of one of the capacities to which the section refers. Whether Mr Pearson was in such a state was the only substantive matter to be decided; that is, whether Mr Pearson's acts of stabbing Abbey and Jacob were unlawful was the only element of the offence of attempted unlawful killing that was in issue for each charge.
The evidence in the trial
The following documents were received as exhibits in the trial:
(a)State's summary of material facts (exh 1)
(b)bundle of statements and materials (exh 2);
(c)report of Dr Steven Patchett dated 17 January 2022 (exh 3);
(d)formal admissions made by Mr Pearson pursuant to s 32 of the Evidence Act 1906 (WA) (exh 4);
(e)report of Dr Adam Brett dated 22 April 2021 (exh 5).
Dr Patchett and Dr Brett also gave oral evidence. In substance, they differed in their opinions only on one matter - whether Mr Pearson lacked the capacity to control his actions. It is not necessary to resolve that difference as Dr Patchett and Dr Brett agreed, for the purpose of s 27(1) of the Code, that Mr Pearson lacked the capacity to know that he ought not to do the acts of stabbing Abbey and Jacob. They also agreed that Mr Pearson was suffering from a mental illness when he did those acts.
The State's summary of material facts
The State tendered, without objection, a summary of material facts. Those facts were admitted by Mr Pearson. Nevertheless, I reviewed the bundle of statements and material comprising exh 2. I was satisfied from my review that the evidence adduced by the tender of the bundle established the facts alleged by the State. I made findings according to the State's summary:[5]
[5] The footnotes incorporated in the statement have been excluded. The footnotes provided references to the evidence contained in the statements and materials that comprised exh 2.
1.The complainant Jacob Matthew PEARSON (Jacob) was born on 17 May 2001 and was 19 years old as at the date of the offence. He is the youngest son of the accused and Abide Pearson. He is 6 feet tall and of a broad build. He is employed as an apprentice plumber.
2.The complainant Abide Jayne PEARSON (also known as Abbey) was born on 25 March 1966 and was 54 years old as at the date of the offence. She is 5 feet 6 tall and of a lean build. She and the accused have been in a relationship together for 40 years and were married on 8 December 1996. She works as an Education Assistant.
3.The accused was born on 15 August 1965 and was 55 years as at the date of the offence.
4.As at 15 December 2020 the accused and Abbey resided together with their two sons Jacob and James (21 years old as at the date of the offence) at 1 Passmore Street, Rossmoyne.
5.In the preceding weeks to the incident on 15 December 2020 members of the accused's family noticed a change in the accused's behaviour. The accused appeared stressed because of work and talked about losing his job in February as the contract was ending.
6.On the night before the incident Abbey observed that the accused was acting weird and seemed withdrawn and quiet. Abbey and the accused talked about the accused's work and the accused said he was very stressed and that things were not going well. The accused said to Abbey 'I'm a failure, I've made mistakes in life and done lots wrong'. Abbey noted that the accused had a nail file in his hands while they were talking which he used to file back his nails until his fingers started bleeding.
7.On the day of the incident Abbey woke up at about 4:45am and the accused came into their bedroom, laid in bed with her and asked her 'What's the matter' to which she said 'I can't sleep'. The accused said 'I am just going to make a cup of tea'. The accused then got up after a short time and left the room.
8.At about 5:10am Jacob woke up from his alarm and stayed in bed until his second alarm went off at 5:20am. He would usually leave the house about 6am to start work at 6:15am. At about 5:20am Jacob got up and made his breakfast. He didn't see the accused. At about 5:40am Jacob went back to bed and checked his phone.
9.A few minutes later, the accused came into Jacob's room. The accused walked past Jacob's bed and opened the blinds on his window. After opening the blinds the accused stared out of the window for about 20 seconds which Jacob noted as a bit unusual. The view from Jacob's bedroom window is of the back garden and fences. It appeared to Jacob that the accused was daydreaming. The sun was up at this time.
10.Jacob asked the accused 'You alright man?' to which the accused did not reply. The accused then walked from the window to the foot of Jacob's bed, and they had a discussion about selling the house and they laughed. The accused was in Jacob's bedroom for about 2 minutes. Jacob did not notice anything unusual about this interaction other than the accused would not usually open his blinds when he came into his bedroom.
11.Jacob then got up and dressed. He walked to the kitchen, picked up his lunch in a smally esky and walked from the kitchen to the garage. To do so he walked through a door that leads from the kitchen into the garage. This door was open.
12.Jacob noted that the garage light was off. The only light in the room was from the kitchen. The garage fits two cars but only Abbey's car was in there parked on the side closest to the kitchen door. The garage has a door in the corner near the roller door that Jacob uses to go out to the front of the house to get to his car which is parked on the verge.
13.As Jacob was walking past his mother's car he glanced back and saw the accused who was right behind him but didn't think anything of it. As Jacob reached the door leading to the front of the house, he realised he had forgotten to say goodbye to his mother. He put his lunch box down and was about to turn to go back inside when the accused said to him 'I can't let you go in'. The accused said this in a normal voice and Jacob thought he was playing around.
14.Jacob turned to his left to walk back to the kitchen door when he saw the accused out of the corner of his eye swinging an object (later identified as a metal pole) down at his head and which was about to hit him. The accused then struck Jacob to his head with the metal pole. Jacob squatted down and put his hand over his head. Jacob didn't know what was happening and thought the accused was play fighting.
15.The accused then struck Jacob another two times to his head. Jacob began yelling 'Mum, Mum.' just after the accused began hitting him.
16.After a few seconds Jacob looked up and saw the accused standing over him holding something black like it was a knife and stabbing at him in a downward motion. Jacob then felt the impact of the bottom of the accused's hand on his chest once, which was when the accused stabbed him. Jacob does not remember the accused saying anything in the 30 seconds to one minute while he hit or stabbed him.
17.The knife the accused stabbed Jacob with was a knife Jacob had bought 2 weeks earlier from Tent World in Midland - a Ku-Bar hunting and fishing knife with a serrated part and jagged area for fishing line, and which came in a box. The knife has a pull-out blade that can be opened by hand.
18.When Jacob had brought the knife home he had shown it to the accused, Abbey and James and ordinarily kept it on the desk in the room near his bedroom.
19.In the meantime, Abbey heard Jacob yell for her repeatedly and walked quickly following the screaming towards the garage.
20.When Abbey entered the garage she saw Jacob and the accused rustling around on the floor in front of the closed roller door next to the external door to the front yard. She saw the accused on top of Jacob and Jacob was trying to both get the accused off him and get out from underneath him. She saw the accused's right arm moving around. She said 'Robert, what are you doing?'. The accused did not say anything in response. The accused turned to look at Abbey and got up. Jacob stayed lying on the ground.
21.The accused immediately began walking at pace towards Abbey which caused her to walk backwards into the kitchen. Abbey observed that the accused's eyes looked angry. The accused followed Abbey into the kitchen, still walking quickly at her. The accused had no expression on his face and Abbey observed that his eyes still looked angry. She saw a knife in the accused's left hand as he walked and recognised it as Jacob's camping knife he had just purchased. The accused was silent. She looked the accused in the eyes and to her he didn't look like he normally did.
22.The accused got to Abbey while she was walking backwards in the kitchen, and when he was about half a metre from her she put her hands out and tried to push him away from her. The accused had the knife in his hand and she was trying to protect herself from him and the knife. The accused then grabbed her left arm with his right hand and she continued to try to get away from him and defend herself from him.
23.At this point Abbey lost her footing and started to fall backwards while the accused held onto her arm with his right hand. She fell onto her coccyx bone near the fridge and then her head hit the wooden floor pretty hard. As she was lying on her back she saw the accused lift his left hand up to about parallel with his shoulder to which she raised her right arm up to try and stop him getting her with the knife. He was holding the knife with the blade out the bottom of his hand facing down towards the ground.
24.The accused then swung the knife in a downward stabbing motion towards her neck. The knife penetrated the right side of her neck just below her jaw. As he stabbed her she put her hands up near her head and tried to push the accused away from her. Abbey was laying down on her back with her feet pointing towards the entrance to the garage and the accused was kneeling down on her left side and was leaning over her. Jacob then entered the kitchen and grabbed the accused from behind and pulled him off her. It all happened very quickly.
25.Jacob punched the accused as hard as he could with his clenched right fist to the back of his head. Jacob then grabbed the accused around his neck from behind and continued to punch him with his right fist. He dragged the accused off Abbey and they fell to the side. The accused did not attack Jacob or fight back. During the incident the accused was very aggressive.
26.After Jacob had dragged the accused off Abbey, the accused said 'Stop. I'm done now'. It seemed to Abbey like he had snapped out of whatever state of mind he was in.
27.Abbey then put her hand on her neck and 3 or 4 fingers into the hole about a knuckle depth inside to stop the bleeding.
28.Jacob said to the accused 'Mate I love you, why did you stab me?' to which the accused said 'Man I wish I was half the man you are'. Jacob then lay on the floor and Abbey put pressure on Jacob's chest to try to stop the bleeding while putting pressure on her neck. At this time the accused stood up and said 'I don't know what I've done'. Abbey and Jacob noted that the accused went from being aggressive and looking very angry to apologetic and helpful, like his usual self.
29.After Jacob had let go of the accused, James came into the living area and called 000 at 6:03am. The accused walked off and came back a short time later.
30.Jacob said he felt hot and asked if someone could pour water on his head, to which the accused went to the bathroom and got some water and poured it on Jacob's head and stroked the water through his hair. The accused kept saying 'Sorry. Sorry. Sorry. I'm a terrible person' Abbey heard the accused apologising saying 'I'm really sorry, I love you, I've done a terrible thing' repeatedly.
31.Jacob looked at the accused and said 'It's all right Dad' to which the accused said 'I wish I was a man like you' which he repeated four times. Jacob asked the accused 'Why did you do this Dad?' however the accused did not respond.
32.After calling 000 James gave the phone to the accused who then spoke to the operator.
33.During the 000 call the accused stated:
- I stabbed them. I stabbed my son and my wife. I stabbed them both;
- (I stabbed them with) a very sharp kitchen knife;
- Maybe two or three (stab wounds to Jacob) to the upper chest;
- One or two in the neck (to my wife);
- I am fully responsible for all of this, for every single activity;
- I've done a really bad thing there. I've stabbed them.
34.At about 6:03am paramedics were dispatched to the house and advised to stand off and wait for the Police.
35.At 6:18am the Police arrived.
36.Police noted a metal pipe approximately 30cm long at the front of the garage area.
37.The accused was observed in the living/dining area sitting on the wooden floor against the wall with his hands on the floor to his sides. To his right was Abbey sitting on the floor. To her right was Jacob lying on his back. Abbey was holding her neck with one hand and also the chest area of Jacob. Jacob was heavily bleeding from his chest.
38.The accused was physically shaking when first observed by Police and he appeared to be unresponsive and was staring across the room blankly.
39.At 6:20am Police (JACKSON, KITSON, BAROT and WAKEFIELD) placed the accused in rigid handcuffs. The accused had what appeared to be blood on his face, neck, back of his head and hands. As they arrested the accused the paramedics moved in to assist the victims.
40.Police walked the accused to the secure pod of the police vehicle. He was advised of his section 137 and 138 Criminal Investigation Act rights and issued the formal caution. The accused was advised that JACKSON and KITSON had body worn cameras which were recording.
41.The accused was asked to confirm his name to which he stated it was Robert Pearson. JACKSON advised the accused of the formal caution again then asked 'Do you understand that mate?' to which the accused said 'Yes'. The accused was very quiet during their interaction, softly spoken and at times not responsive verbally however appeared physically agitated due to the way he was tensing and shaking his body.
42.After the accused had been removed from the scene by Police the paramedics treated Jacob and Abbey. Abbey was holding a towel against her neck with one hand and also holding towels in her other hand on Jacob's chest who was laying down.
43.Paramedics observed that Jacob did not look well and was pale. A 5cm penetrating stab wound to his right chest with minor bleeding coming from the wound was noted and just below the stab wound were 2 horizontal superficial lacerations.
44.Paramedics observed that Abbey had a 4cm laceration in width and about 3cm deep to the right side of her neck between the collar bone and laryngeal prominence.
45.At about 6:35am the ambulances with Jacob and Abbey left the house and they were taken to Royal Perth Hospital.
46.During the search of the house and garage Police located a knife on a countertop in the kitchen. The knife had a black blade about 10 - 15cm long and was partially serrated. The knife was branded KA-BAR. The knife was very new but the blade appeared to have something on it.
47.In a back room which appeared to be set up like and office or study JACKSON saw an opened box also branded with the name KA-BAR. The box looked very new.
48.A metal pole was located in the garage area.
49.After the ambulances had left the accused was readvised that he was an arrested suspect for aggravated unlawful wounding and was provided with the formal caution.
50.The following conversation between the accused and Senior Constable JACKSON then occurred:
-After providing the caution to the accused JACKSON said 'Can you explain that to me in your own words'
-The accused said nothing
-JACKSON said 'If I ask you any questions how many do you have to answer?'
-The accused said 'All of them' then after a short pause said 'None'
-JACKSON asked 'Can you tell us why we are here today?'
-The accused said 'Yes I can because I injured my son and wife'
-JACKSON asked 'How did you do that?'
-The accused said 'With a weapon two weapons. A post and a knife'
-JACKSON asked 'Can you describe the knife for me?'
-The accused said 'Yes it's a new knife'
51.When asked to describe the knife and the post further the accused was silent and raised his hands slightly. He then started crying and was in obvious emotional distress. JACKSON stopped asking questions and secured the accused inside the pod again.
52.At 7:09am the accused was conveyed by Police to the Cannington Police Station.
53.Jacob was treated at Royal Perth Hospital and the following injuries were observed and treatment administered:
Injuries:
-Right internal mammary artery injury;
-Right traumatic haemothorax;
-Stab wound to right anterior wall/mid clavicular line 4th rib space;
-Small laceration right upper lobe of lung;
Treatment administered:
-Insertion of right intercostal catheter;
-Exploration thoracotomy, evacuation of haematoma, ligation of right internal mammary artery;
-Stab wound was stapled;
-Physiotherapy.
54.It is the opinion of Jacob's treating Doctors that:
(a)His injuries were of such a nature as to endanger or be likely to endanger life;
(b)His injuries were of such a nature as to cause or be likely to cause permanent injury to health;
(c)Without medical treatment his life could have been endangered by massive bleeding and sepsis;
(d)Without medical treatment the likely permanent injuries include possible death due to bleeding, chronic infection.
55.Jacob was discharged on 21 December 2020.
56.Abbey was treated at Royal Perth Hospital and the following injuries were observed and treatment given:
Injuries:
-Stab wound to right neck
-Cervical spine tenderness (C2/C3)
Treatment administered:
Right neck stab wound was explored and stapled
57.It is the opinion of Abbey's treating Doctors that:
-Her injuries were not of such a nature as to endanger or be likely to endanger life;
-Her injuries were not of such a nature as to cause or be likely to cause permanent injury to health.
58.Abbey was discharged on 17 December 2020.
Mr Pearson's admissions
Mr Pearson made admissions pursuant to s 32 of the Evidence Act 1906 (WA). I made findings according to the admissions:
1.The accused was present at his home at 1 Passmore Street, Rossmoyne between 5.45am and 6.15am on Tuesday, 15 December 2020.
2.The wife of the accused, Abide Jayne Pearson and their sons, Jacob Matthew Pearson and James Matthew Pearson were also present at 1 Passmore Street, Rossmoyne between 5.45am and 6.15am on Tuesday, 15 December 2020.
3.At approximately 6.00am on Tuesday, 15 December 2020 the accused stabbed his son, Jacob Matthew Pearson with a KA-BAR brand hunting and fishing knife in the garage of 1 Passmore Street, Rossmoyne.
4.Shortly after stabbing his son Jacob Matthew Pearson, the accused stabbed his wife Abide Jayne Pearson with the same KA-BAR brand hunting and fishing knife in the kitchen of 1 Passmore Street, Rossmoyne.
5.As a result of the stabbing, Jacob Matthew Pearson sustained the following injuries:
a) Right internal mammary artery injury;
b) Right traumatic haemothorax;
c)Stab wound to right anterior wall/mid clavicular line of the 4th rib space;
d) Small laceration to right upper lobe of lung.
6.The injuries sustained by Jacob Matthew Pearson amounted to grievous bodily harm as defined in s.1 of the Criminal Code. The injuries were of such a nature as to endanger or be likely to endanger life and were of such a nature as to cause or be likely to cause permanent injury to health.
7.As a result of the stabbing, Abide Jayne Pearson sustained a stab wound to the right side of her neck.
8.The injury sustained by Abide Jayne Pearson amounted to bodily harm as defined in s.1 of the Criminal Code. The injury was of such a nature so as to interfere with the health and comfort of the complainant.
Mr Pearson's personal circumstances and mental state
Mr Pearson provided a consistent history of his personal circumstances to Dr Patchett and Dr Brett. He also gave an account of his mental state on 14/15 December 2020 – although, his recollection of what occurred when he stabbed Abbey and Jacob was incomplete.
Dr Patchett, Dr Brett and the State accepted the truthfulness and reliability of the history and account provided by Mr Pearson. As previously noted, the State did not require Mr Pearson to give evidence to lay the foundation for the opinions expressed by Dr Patchett and Dr Brett.
Section 93(1) CPA permits the issue of criminally responsibility under s 27(1) of the Criminal Code to be determined on any evidence and in any manner the judge thinks just. In the circumstances, it is just - and was plainly intended by the parties - that I should make findings about Mr Pearson's personal circumstances and mental state from the history provided to Dr Patchett and Dr Brett, as recounted in their reports and oral evidence.
I made the following further findings:
(1)Mr Pearson was born in England on 15 August 1965. He is the fifth eldest of six siblings. His family emigrated to Australia in 1968 and came to Western Australia the following year.
(2)Mr Pearson's father operated a small, commercial cleaning business. Mr Pearson described his father as an alcoholic and said that his mother worked fulltime to assist in supporting the family. Mr Pearson did not recall witnessing any episodes of domestic violence and his childhood and schooling appear to have been unremarkable.
(3)However, Mr Pearson's mother was killed in a motor vehicle accident when he was 18 years of age. He described this as a devastating experience. His father returned to England with one of the accused's younger brothers shortly following that tragedy.
(4)Mr Pearson's relationship with his father was difficult. His father was emotionally detached and largely disengaged from Mr Pearson's upbringing. They shared a common interest in soccer but little else.
(5)Mr Pearson did not receive counselling at the time of his mother's death and it is clear from the reports of Dr Patchett and Dr Brett that there remain unresolved emotional and psychological issues from his childhood and adolescence. However, his estranged relationship with his father and the tragic loss of his mother instilled in him a strong sense of the importance of his role in his family; he was motivated to provide an emotionally and financially secure family unit.
(6)Mr Pearson has an excellent employment history. As at December 2020, he was employed in managing information records for a large oil and gas company. He had spent much of his adult life working in the oil and gas industry.
(7)Mr Pearson met Abbey when he was 18 years old; she was 15 years of age. As the State's summary of material facts records, they were married in December 1996. Mr Pearson considered he had a close relationship with Abbey.
(8)Mr Pearson suffered from testicular and back pain, commencing approximately nine months before December 2020. He was referred to various specialists who were unable to diagnose the source of his pain. Mr Pearson's father had died from bladder cancer and Mr Pearson believed he had also contracted cancer despite the specialists’ opinions. That caused him significant stress.[6]
(9)Some weeks prior to15 December 2020, James' relationship with his girlfriend ended. His emotional and mental state deteriorated and Mr Pearson became very concerned about his son's mental health and wellbeing; in particular, he was concerned that James was at risk of self‑harming. Mr Pearson attended the family general practitioner with his son and called the doctor frequently to express his concerns.[7] James ceased attending university, stopped working and withdrew from his friends. At times, Mr Pearson slept in James' room to ensure that his son remained safe. He worked at home to be with James and took leave so that he could care for his son while Abbey worked during the day. However, Abbey was not concerned that James would commit suicide.
(10)Mr Pearson felt he had let James and his family down. He had thought of himself as 'impregnable, I was the rock, I held the family together' but he had started to doubt himself because of James' problems. He slept poorly and found it difficult to concentrate on his work.
(11)Mr Pearson also feared that Jacob would be seriously injured in a work accident. He would repeatedly ring Jacob during the day to make sure he was safe.
(12)Mr Pearson also developed concerns about his work. He came to believe he had made a major mistake at work; that he was about to be fired from his job; that his employer had notified the police about the mistake and he was going to be arrested. He had purchased an expensive car and believed that the purchase of the vehicle was evidence that he had misappropriated money ($100,000) and the Australian Federal Police (AFP) were 'closing in on him'.
(13)In the days preceding 15 December 2020, Mr Pearson experienced severe anxiety, agitation and distractibility. He slept badly; felt exhausted and distracted; believed he was making multiple mistakes at work; had difficulty in swallowing food; and experienced rapid a heart beat and palpitations, tremor and dry mouth. He entertained suicidal thoughts.
(14)Mr Pearson developed classical symptoms of a depressive disorder - he lost appetite and weight (15 kgs in total); lacked motivation; became concerned that he had not provided financially for his family; believed that he was financially destitute and had made impulsive decisions such as buying and selling an expensive motor vehicle. He was diagnosed by his general practitioner as suffering from anxiety and depression during a telephone consultation on 3 December 2020.[8] He gave a history of weight loss, sleep disturbance, suicidal ideation and somatic concerns. He was prescribed an anti-depressant and anxiolytic.
(15)Mr Pearson developed a belief that his family were going to be sent to prison. He believed he was being monitored by the AFP and that they were waiting to take his family to gaol. He became hypervigilant and paranoid about text messages he had received.
[6] See also the Sonic HealthPlus Patient Summary Records for Mr Pearson - exh 2, page 255 and following; referrals to Mr Craig Waters , Dr Colin Somerville and Mr Nigel Barwood and reports from Dr Waters and Mr Barwood – exh 2, page 309 and following.
[7] See Sonic HealthPluse patient records – exh 2, page 267 and following.
[8] See Dr Croft's notes of a telephone consultation held on 3 December 2020 – exh 2, page 268.
I make the following further findings about Mr Pearson's mental state across 14/15 December 2020. Again, the findings are taken from the history given by Mr Pearson to Dr Patchett and Dr Brett:
(1)Mr Pearson had virtually no sleep during the night of 14/15 December 2020. At about 4 am he took six tablets in an attempt to induce sleep. However, he remained awake and agitated.
(2)At about 6 am, Mr Pearson heard noises outside his house - bushes being disturbed and a car door closing. He believed the noises had been made by AFP officers surrounding the house and making preparations to enter.
(3)He went to Jacob's room and looked through the blinds to see if he could observe the police officers. He thought he could see a red car. That was the colour of marked cars used by the AFP. He believed that his employer had discovered that he had done something bad.
(4)Mr Pearson became worried that if Jacob left the house something bad would happen - that the police would get Jacob and that it was necessary to prevent him from leaving the house to go to work. He believed that the AFP wanted to put his family in gaol; that police were surrounding his house and that they were sending him text messages. He was convinced that he and his family were in 'big trouble'.
(5)Mr Pearson believed that Jacob would be killed if he left the house and that the AFP would raid the house and arrest his family if his son opened the garage door. He also believed his son had an image of an aboriginal on his computer and that this had great significance and would cause the family problems.
(6)Mr Pearson could recall hitting Jacob with a steel pole and punching him. However, his recollection of what occurred after that was imperfect.
Mr Pearson was admitted to the Frankland Centre the day after his arrest. He was referred on a hospital order made by a magistrate. Exhibit 2 includes a summary generated by the Frankland Centre on Mr Pearson's discharge on 26 February 2021.[9] There was no issue taken with the matters recorded in the summary. I find that:
(1)Mr Pearson was very unwell on admission. He was incredibly distressed, vague, perplexed, suicidal, disorganised in his thoughts and behaviour and his beliefs were fragmented and illogical. He presented with signs of psychosis. He 'experienced several nihilistic delusions that led him to believe that his life, and the lives of his wife and sons, would be devastated'. He believed that he had committed a major crime at his work; that he had lost his job; and that he and his family were going to prison. Shortly prior to 15 December 2020, he became convinced that he was financially destitute; that James was going to commit suicide and that Jacob was going to be killed in a work-place accident.
(2)Mr Pearson's principal diagnosis was psychotic depression. There was no secondary diagnosis given in the summary. Mr Pearson commenced anti-psychotic and anti-depressant medication. His psychotic symptoms improved with medication but it was anticipated that he would require antipsychotic medication for six to twelve months.
(4)Mr Pearson was discharged from the Frankland Centre on 26 February 2021. However, he was transferred to Bentley Hospital on being granted bail.
[9] Exhibit 2, page 330 and following.
An audit of the document management system maintained by Mr Pearson's employer was undertaken on 18 December 2020. The outcome of the audit was reported to the police.[10] The audit found 'nothing of real concern' about Mr Pearson's work. It was not in issue that Mr Pearson's beliefs that he had committed a 'major crime' at his work; that his employer had reported him to the police; and that he was about to lose his job were delusional. I made that finding.
[10] Exh 2, page 214.
The meaning and effect of s 27 (1) of the Criminal Code
In my view, s 27(1) of the Criminal Code is to be interpreted and applied according to the following propositions:
(a)The issue of criminal responsibility raised by s 27(1) falls to be determined before the issue of Mr Pearson's intent at the time he stabbed Abbey and Jacob. The question of intention only arises if Mr Pearson is found to be criminally responsible for his acts.[11]
(b)What constitutes a mental illness is a question of law; whether Mr Pearson suffered from a mental illness at the time he stabbed Abbey and Jacob is a question of fact.[12]
(c)The wording of s 27(1) is broadly consistent with the observations of King CJ in R v Radford.[13] Those observations were summarised by Jenkins J in The State of Western Australia v Lang [No 2].[14] Her Honour's summary has been adopted by other members of this court.[15]
(d)The incapacity of a person to control their actions due to mental impairment mirrors s 23A of the Criminal Code. A person who is incapable of exercising the power of determination or choice due to a mental impairment is not criminally responsible for their acts in the same way as a person who does an act independently of the exercise of their will is not criminally responsible for the act.[16]
(e)A person is deprived of the capacity to control their actions if 'they are deprived of the capacity to make a conscious decision to act (that is, to act voluntarily) or if they are deprived of the capacity to refrain or restrain themselves from doing a willed act (sometimes also referred to as the capacity to exercise the power of choice to act)'.[17] A person may lack the capacity to control their actions as a result of a mental impairment even though their act was willed – for example, because they acted on a delusional belief or other psychotic phenomena that overwhelmed their capacity to control their actions.
(f)The question whether an accused person has the capacity to know that he or she ought not to do the charged act or make the charge omission requires the court to determine whether, at the time of the act or omission, the accused was able to appreciate that the act or omission was wrong according to ordinary community standards. The issue is whether, due to a mental impairment, the accused lack the capacity to reason rationally as to what is right or wrong according to ordinary community standards.
(g)There is no requirement that an accused person knew that the act was wrong in the sense of being contrary to law. What is required is that the accused knew 'right from wrong, good from evil, not legality from illegality.'[18]
(h)The term 'know' means 'understanding, appreciate or comprehend'. Knowledge (short of understanding) that to kill is punishable by law does not prevent a finding that a person lacked the capacity to reason rationally as to what is right or wrong according to ordinary standards. Further, a finding of incapacity does not depend upon proof of a positive belief in the rightness of the accused's act.[19]
[11] Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 [25] (Kennedy J).
[12] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, [60] (Deane and Dawson JJ).
[13] R v Radford (1985) 20 A Crim R 388.
[14] The State of Western Australia v Lang [No 2] [2016] WASC 206. See also The State of Western Australia v Herbert [2017] WASC 101 and The State of Western Australia v Jones [2018] WASC 395.
[15] See The State of Western Australia v Haast [2020] WASC 161 (McGrath J); The State of Western Australia v Djurasovic [2021] WASC 406 (Hall J) and The State of Western Australia v Taylor [2021] WASC 470 (Derrick J).
[16] R v Falconer.
[17] The State of Western Australia v Taylor [51].
[18] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 538.
[19] Evans v The State of Western Australia [2010] WASCA 34 [60] (McLure P).
Other principles of law to be applied
The presumption of innocence
Any person who stands trial for a criminal offence is presumed to be innocent; he or she is presumed to be innocent not just before the trial but throughout the trial. Consequently, Mr Pearson is presumed to be innocent of the charges alleged against him and the presumption of innocence continues to apply until a verdict is reached. Save for the issue raised by s 26 and s 27(1) of the Code, it follows that the State has the onus of proving Mr Pearson's guilt.
The State must prove Mr Pearson's guilt beyond a reasonable doubt. That requires the State to prove each element of the offence alleged to that standard. Mr Pearson must be found not guilty if the State has failed to prove any element of the offence beyond a reasonable doubt.
True verdicts only on the evidence
I am required to deliver true verdicts according to the evidence; that is, my findings of fact and my verdicts must be based solely on the evidence presented in the trial. Further, I am required to assess the evidence, and make my findings, objectively and impartially. Sympathy, prejudice, sentiment or emotion must not play any part in my reasoning.
I am not permitted to guess or speculate about matters that were not in evidence. Theories that were not supported by the evidence are to be disregarded.
Separate verdicts
I am required to separately consider each charge alleged against Mr Pearson. The fact that I have found Mr Pearson guilty or not guilty of one charge does not mean that I must find him guilty or not guilty of the other charge. I must not reason that a finding of guilt on one charge means that Mr Pearson is guilty of the other charge.
However, it should be noted that neither the State nor Mr Pearson drew any material difference between the circumstances in which Mr Pearson stabbed Abbey or Jacob.
Inferences
I am required to draw an inference about Mr Pearson's mental state at the time that he stabbed Abbey and Jacob - on the issues put by the parties to the court for determination, whether he knew that he ought not stab either of them. That is a matter on which Mr Pearson carries the onus, the standard of proof being the balance of probabilities. I am not required to draw an inference on a matter on which the State bears the onus given the admissions made by Mr Pearson.
An inference is a conclusion of fact rationally drawn from a combination of proved facts. Accordingly, an inference can only be drawn from evidence that has been accepted as truthful and reliable. Speculation or conjecture must be avoided in drawing an inference. However, it is not necessary that a fact be proven beyond a reasonable doubt before it can be used for the purpose of drawing an inference (unless proof of the fact is essential to a finding of guilt); it is sufficient that the fact is established by evidence that has been accepted as truthful and reliable.
Expert evidence
The fact that a witness possesses specialist knowledge about a subject does not mean that their evidence must be accepted. Expert evidence is like all evidence received in a trial; it is open to accept or reject any part of the evidence, including the opinions expressed by an expert.
However, the parties accepted that Dr Patchett and Dr Brett were qualified to give evidence of their opinions and conclusions. There was no issue raised about how they had reasoned to their opinions and their impartiality was not disputed. It was not suggested that there was a material inconsistency between their evidence and the balance of the evidence adduced in the trial. There was no substantive difference in their opinions on the issues that had to be decided. Accordingly, there was no reasonable basis for rejecting the opinions Dr Patchett and Dr Brett.
Mr Pearson did not give evidence
Mr Pearson elected not to give evidence. That was his right and no inference may be drawn against him because he exercised the right. As previously noted, the State did not require Mr Pearson to give evidence to lay the factual foundation for the opinions expressed by Dr Patchett and Dr Brett - the State accepted the veracity of the history given by Mr Pearson to each doctor.
The opinions of Dr Patchett and Dr Brett
As previously noted, Dr Brett and Dr Patchett differed in their opinion in only one potentially material respect: whether Mr Pearson lacked the capacity to control his actions due to a mental impairment. However, they agreed that Mr Pearson lacked the capacity to know that he ought not to have done the acts of stabbing Abbey and Jacob.
It is, therefore, convenient to deal with the evidence of Dr Brett and Dr Patchett by identifying the common ground in their opinions. That is sufficient to dispose of the issues raised by s 27(1). It is not necessary to determine the question whether Mr Pearson lacked the capacity to control his actions to decide the ultimate issue of whether he is criminally responsible for his acts given the findings I have made on Mr Pearson's incapacity.
Three preliminary matters should be noted. First, as previously mentioned, Mr Pearson gave a consistent history to Dr Brett and Dr Patchett. Further, Dr Brett and Dr Patchett had access to the same materials to form their opinions. There was no material difference between the facts and circumstances on which they expressed their respective opinions.
Second, the facts which have been found are consistent with the facts and circumstances on which Dr Brett and Dr Patchett based their opinions.
Third, the difference of opinion between Dr Patchett and Dr Brett on the question of whether Mr Pearson could control his actions did not affect the assessment of their evidence on all other issues on which they opined. It was apparent from the evidence of Dr Patchett and Dr Brett that the capacity to control a person's action overlaps to a significant degree with the capacity to know that a person ought not to do an act; that the capacity to control an act raises complex questions about which reasonable psychiatrists might differ; that the difference between Dr Patchett and Dr Brett on the issue of whether Mr Pearson was deprived of the capacity to control his actions was not stark and that neither doctor was prepared to challenge the other for the conclusion they had reached on that issue.
It was common ground between Dr Brett and Dr Patchett that:
(a)A delusional belief is a fixed, false, firm belief that a person holds against evidence to the contrary.[20] A delusional belief will present as a 'real' experience - that is, it will form a person's reality.[21]
(b)Mr Pearson experienced a number of delusional beliefs immediately prior to and during the morning of 15 December 2020 - that he had committed a serious offence at his work place; that he was under surveillance by the AFP; that the AFP intended to arrest and imprison him and his family; that Jacob could die in a work place accident; that the police had surrounded the family home early on the morning of 15 December 2020; that something 'bad' would happen if Jacob left the house; and that he had to prevent his son from leaving in order to protect himself and his family.
(c)Mr Pearson had experienced auditory hallucinations, possibly immediately prior to stabbing Abbey and Jacob and subsequently, while being held in the lock up at the Central police station.
(d)Mr Pearson was acutely unwell as at 15 December 2020. He was suffering from a clinical disorder, psychotic depression, at the time he stabbed Abbey and Jacob. He was experiencing symptoms of psychosis 'including nihilistic persecutory and guilty delusions and probable auditory hallucinations' at that time.[22]
(e)Depression is spectrum from a normal human emotion responding to adverse life events through to a serious mental illness involving impairment and disorganisation of the neurochemistry of the brain. Consequently, depression involves biological, psychological and social factors. Psychotic depression involves serious biological disturbances in the brain, psychosis being a thought disorder involving delusions and/or hallucinations.[23]
(f)Mr Pearson was deprived of capacity to know that he ought not to do the acts of stabbing Abbey and Jacob. He was suffering from psychosis at the time, characterised by delusions and hallucinations that led him to believe an alternative reality existed in which he had to carry out the acts he did to save his family and himself from destitution.[24]
(g)Mr Pearson was acutely unwell at the time that he stabbed Abbey and Jacob. He believed that his family were at imminent risk and he thought his actions were protecting his family from that risk. His actions were driven by his delusional thoughts and his offending behaviour made sense within his delusional framework.[25]
[20] Dr Patchett, ts 37.
[21] Dr Patchett, ts 43. Dr Brett agreed with the evidence given by Dr Patchett as to the nature and difference between a delusional belief and an hallucination - ts 60.
[22] Exhibit 3 (report of Dr Patchett) page 13.
[23] Dr Patchett, ts 36 - 37; Dr Brett ts 57.
[24] Exhibit 3, page 14.
[25] Exhibit 4, page 19.
Findings on s 27(1) of the Criminal Code
I accept the opinions expressed by Dr Brett and Dr Patchett. I find that:
(a)Mr Pearson was suffering from a clinical disorder, psychotic depression, when he stabbed Abbey and Jacob. He had suffered from that disorder for some time prior to 15 December 2020 (it is not necessary to determine when his depression first became so profound as to manifest itself in delusional and paranoid beliefs).
(b)Psychotic depression is a form of mental illness - a pathological infirmity of the mind.
(c)Mr Pearson was suffering from a mental impairment at the time he stabbed Abbey and Jacob.
(d)Mr Pearson was experiencing a psychotic episode at the time he stabbed Abbey and Jacob. He held various paranoid and destructive delusional beliefs. Most significantly, he believed that he had to act to prevent Jacob from leaving the house to protect his family and himself from what he perceived to be significant harm.
(e)Mr Pearson was deprived of the capacity to know that he ought not to stab Abbey and Jacob - that is, he was deprived of the capacity to know that he ought not to do the acts that he did according to ordinary community standards. Mr Pearson lacked that capacity because of his mental illness - he could not reason rationally as to what was right or wrong according to ordinary community standards because of the delusional beliefs he held as a consequence of his illness.
Findings on the charged offences
Mr Pearson admitted that he stabbed Abbey and Jacob. I am satisfied beyond a reasonable doubt that Mr Pearson did acts that were more than merely preparatory to killing Abbey and Jacob. However, I am satisfied on the balance of probabilities that Mr Pearson is not criminally responsible for those acts on account of unsoundness of mind. Accordingly, I am not satisfied that the killing of Abbey and Jacob would have been unlawful.
I am not required to make a finding on Mr Pearson's intentions at the time that he stabbed Abbey and Jacob.
Order
Section 21 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) provides that if an accused is acquitted by a superior court of an offence on account of unsoundness of mind, the court must make a custody order in respect of the accused if the offence is a Schedule 1 offence. The offence of attempting to unlawfully kill is a Schedule 1 offence. Accordingly, I make a custody order in respect of Mr Pearson.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HT
Associate to the Honourable Justice Corboy
1 JUNE 2022
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