The State of Western Australia v Pym

[2025] WADC 16

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION:   PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- PYM [2025] WADC 16

CORAM:   ASTILL DCJ

HEARD:   5 - 7 MARCH 2025

DELIVERED          :   21 MARCH 2025

FILE NO/S:   IND 271 of 2023

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND

JOSHUA MICHAEL PYM

Catchwords:

Criminal law - Special proceedings - Trial by judge alone - Grievous bodily harm with intent - Procedure to be adopted in special proceeding - Special arrangements for accused unfit to stand trial - Self-defence - Whether accused had capacity to form intent

Legislation:

Criminal Code (WA)
Criminal Law (Mental Impairment) Act 2023 (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)

Result:

Charge proven

Representation:

Counsel:

The State of Western Australia	:	Ms G Clarke
Accused	:	Ms F Veltman

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Frances Veltman, Kennedy Chambers

Case(s) referred to in decision(s):

Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434

Browne v Dunn (1893) 6 R 67

BSJ v The State of Western Australia [2023] WASCA 5

Campbell v The Queen [1981] WAR 286

Egitmen v The State of Western Australia [2016] WASCA 214

Festa v The Queen (2001) 208 CLR 593

Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166

Goodwyn v The State of Western Australia [2013] WASCA 141

Higgins v The State of Western Australia [2016] WASCA 142

Houghton v The Queen [2004] WASCA 20

Jones v The State of Western Australia [2024] WASCA 115

Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209

Lewis v The State of Western Australia [2008] WASCA 94

NCH v The State of Western Australia [2013] WASCA 29

Osland v The Queen (1998) 197 CLR 316

Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107

R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308

R v Bonython (1984) 38 SASR 45

R v Brown [1994] 1 AC 212

R v Falconer (1990) 171 CLR 30

Raux v The State of Western Australia [2012] WASCA 1

Stanik v The Queen [2001] WASCA 333

Stubley v The State of Western Australia [2011] HCA 7

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

Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158

ASTILL DCJ:

History of proceedings

1. Mr Joshua Michael Pym is charged on indictment that on 26 February 2022 at Greenmount he, with intent to maim, disfigure, disable, or do some grievous bodily harm to Barry Adam Risi did grievous bodily harm to Barry Adam Risi contrary to s 294(1) of the Criminal Code (the Code).

2. On 9 May 2023 the question of Mr Pym's fitness to stand trial was raised.  It did so firstly under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) and then, when that Act was repealed, was taken to have been commenced[1] under the Criminal Law (Mental Impairment) Act 2023 (WA) (the CLMI Act) when it came into operation on 1 September 2024.

   [1] Section 245 of the CLMI Act.

3. On 9 September 2024 her Honour Shepherd DCJ found Mr Pym to be unfit to stand trial.  She did so on the basis of two reports prepared by Dr Ho as well as Dr Ho's oral evidence given before her.

4. Her Honour found that Mr Pym was someone who suffered from a 'mental impairment'[2] namely intellectual disability and schizophrenia, and that because of his mental impairment he was deprived of five of the capacities to:

   (a)give instructions to a legal practitioner representing Mr Pym;[3]

   (b)understand the requirement to plead to the charge or the effect of a plea;[4]

   (c)understand or exercise the right to challenge jurors;[5]

   (d)understand the substantial effect of evidence presented by the prosecution in the trial;[6] and

   (e)decide whether to give evidence, or to give evidence if he wished to do so.[7]

   [2] As per s 9 of the CLMI Act.

   [3] Section 26(b).

   [4] Section 26(c).

   [5] Section 26(e).

   [6] Section 26(g).

   [7] Section 26(h).

5. Having made those findings, her Honour was also satisfied Mr Pym would not become fit to stand trial within six months. She made an order under s 37(3) for a special proceeding pursuant to subdivision 3 of the CLMI Act.  Mr Pym now comes before me to resolve that issue.[8]

   [8] Section 41(1).

Legal representation

1. In light of her Honour's findings as to Mr Pym's incapacity, it was evident to me Mr Pym would require the assistance of legal representation during the course of the special proceeding.[9]  He was represented throughout by Ms Veltman.

   [9] Section 38(1).

2. Because of her Honour's finding that Mr Pym did not have the capacity to give instructions, it was necessary for Ms Veltman to exercise an independent discretion on Mr Pym's behalf to make decisions she reasonably believed would be in Mr Pym's best interests.[10]

   [10] Section 38(2).

Conduct of the proceedings

1. Pursuant to s 42(4)(a), Mr Pym was taken to have entered a plea of not guilty before me.  No other plea was entered.

2. In carrying out my function under the CLMI Act, I am required to have regard to the principles set out in s 7(2).  For the purposes of conducting the special proceedings, s 7(b) and (c) appear to have specific relevance, though I have also had regard to the remainder of the principles contained in s 7(2).

3. Further, I am also conscious of the objects of the CLMI Act provided for in s 7(1); s 7(1)(b)(iii), (iv) and (v) appear to have particular applicability given the nature of the proceeding.

4. Section 8 of the CLMI Act provides when I am performing a function under the CLMI Act, the paramount consideration is the protection of the community. In my view s 8 must be considered in the context of the objects provided for by s 7(1). In the present case, the operation of s 8 must be informed by s 7(1)(b)(iii), (iv) and (v) in particular.

5. Reconciliation of any inconsistency which may exist between the paramount consideration provided for in s 8 and the objects provided by s 7(1)(b)(iii), (iv) and (v) will be achieved by ensuring that a person with a mental impairment who is charged with an offence receives a fair hearing to accurately determine whether they are someone who the community must be protected against, or not.

6. Section 42(2) requires for the court 'to the extent practicable' to conduct the special proceeding as if it were 'an ordinary criminal proceeding'. Section 42(1) will allow the court to conduct the special proceeding in the manner the court considers appropriate. Reading these provisions consistently with each other, the court ought to endeavour to run the special proceeding as close to ordinary criminal proceedings as possible with whatever variations may be appropriate. Conferral with the parties pursuant to s 42(3) will assist the court in determining what variations may be appropriate.

7. At the commencement of the special proceedings, I held such conferral.  The only variations from an 'ordinary criminal proceeding' that were adopted were as follows:

   (a)Ms Veltman would be conducting the special proceedings absent instructions and pursuant to the responsibility conferred by s 38(2).

   (b)Given the considerable history of delay, it was agreed allowance would be made for the special proceeding to be conducted 'part heard' should it become necessary.  This allowance was consistent with the object of the CLMI Act to ensure Mr Pym is subject to the least possible interference with his right to liberty,[11] as well as the principle that a person with a mental impairment should be subject to the least possible restriction on their freedom.[12]  Whilst it was not ultimately necessary to be 'part heard', adoption of this approach did result in multiple delays in the taking of the evidence during the course of the special proceeding in order to make allowance for witness availability.

   (c)Her Honour had found Mr Pym to be deprived of the capacity to decide whether to give evidence, or to give evidence if he wished to do so.  Conferral was had as to how this would occur should he choose to do so and what effect s 42(4)(d) might have.  Ultimately, this did not become necessary given Mr Pym elected to exercise his right not to give evidence.

   [11] Section 7(1)(b)(v).

   [12] Section 7(2)(a).

8. Section 42(4)(c) of the CLMI Act permits modification of the rules of evidence.  As part of the conferral, neither party suggested the rules of evidence should be modified so that I could have regard at the special proceeding to the psychiatric evidence underpinning the finding Mr Pym was unfit to stand trial.

9. Accordingly, I have had no regard to that evidentiary material beyond what was contained in her Honour Shepherd DCJ's reasons for the purposes of conducting the conferral required by s 42(3).  I have had no regard to that material in determining the special proceeding.

Applicable principles

1. Section 42(2) requires the court to 'endeavour to conduct the proceeding as if it were an ordinary criminal proceeding'. Mr Pym has been charged on an indictment which would, ordinarily, require that charge to be tried by jury. Section 41(1) requires the special proceeding to be constituted by a judge, sitting alone, to decide the charge. Fundamentally those two positions appear to be inconsistent with each other.

2. The way to reconcile this apparent inconsistency is to treat the conduct of the special proceeding as being 'an ordinary criminal proceeding … as if conducted by trial by judge alone without jury' pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (the CPA) and to adopt the procedures required by s 119 and s 120(2).[13] To proceed in this fashion is, in my view, consistent with the manner required by s 42(2) of the CLMI Act.

   [13] Section 120(1) of the CPA is inconsistent with the findings available to the court pursuant to s 41(2) of the CLMI Act.

3. Further, by adopting the requirements of s 119 and s 120, this informs me as to what content is required by s 41(4) of the CLMI Act to constitute 'the reason for [the court's] decision'.

4. Section 120(2) of the CPA requires me to set out the principles of law that I have applied to come to the findings that I have.

5. The general principles, in addition to those provided by s 7 and s 8 of the CLMI Act (which I have already referred to), are as follows:

   (a)Section 119 of the CPA provides that if any law requires or prohibits information or a warning or instruction to be given to a jury, the judge in a trial by judge alone must take the requirement or prohibition into account if those circumstances arise in the course of the trial.  The obligation is not limited to responding to and addressing the submissions of the parties as to the applicable legal principles, warnings and directions, but extends to identifying and applying any other legal principles, warnings and directions that are relevant.

   (b)An accused person is presumed to be innocent of the charge, or charges, presented against them.  That presumption remains until such time as his or her guilt is proven to the criminal standard.  If guilt is not proven the presumption of innocence remains.

   (c)The burden of proving an accused person's guilt is on the State.  An accused person does not have to prove their innocence; indeed, they do not have to prove anything.

   (d)The standard of proof required is proof beyond reasonable doubt.  It is sufficient for me to say that this is the highest standard known to the law.  It is a high standard but it is not an impossible standard.

   (e)For the State to discharge that burden, the State must prove beyond reasonable doubt each of the elements of the offence which has been alleged against Mr Pym.

   (f)One of the aspects of the onus of proof being on the State is that the accused has a right to silence.  The right to silence does not commence in this court.  A person who is arrested by the police has that right from the beginning and it continues to the trial.  An accused person is not obliged to speak to the police or to give evidence at their trial but they may do so if they wish.  In this case Mr Pym chose to speak to the police.  A recording of that interview was tendered in evidence by the State and will be referred to later in these reasons.

   (g)However, if the account provided by Mr Pym in his interview causes me to hold a doubt as to the elements of the offence then I must acquit Mr Pym.  If I reject the account, or parts of the account, given by Mr Pym in that recording, this would not operate to strengthen the prosecution case against Mr Pym.  I would simply put to one side the part, or parts, of Mr Pym's account that I have rejected and return to the question of whether the State has satisfied me beyond reasonable doubt on all of the evidence of Mr Pym's guilt.

   (h)During these proceedings Mr Pym exercised his right to silence and chose not to give evidence.  It would be wrong to draw any adverse conclusion from the exercise of that right.  The silence of the accused is not evidence against him.  Nor can it be used to support any inference adverse to him.  The fact that an accused person chooses not to give evidence at their trial is not an admission of anything; it cannot be used to fill in any gap in the prosecution case nor does it strengthen it.

   (i)I must decide the case based on the evidence which has been presented during the trial.  I must assess the evidence dispassionately, in a rational and impartial way.  My decision cannot be based on prejudice against, or sympathy towards, anyone.  My task is to consider what logical conclusions can be drawn from the evidence as a whole.

   (j)I must not guess or speculate about matters not in evidence or look for theories that are not supported by the evidence.  I am permitted to draw inferences.  Inferential reasoning is not speculation.  Inferential reasoning is the drawing of a logical deduction from the proven facts.

   (k)If it is necessary to draw an inference or inferences of guilt from the evidence, I cannot draw an inference against the accused that is consistent with guilt unless that inference is the only reasonable one open on the evidence.  In deciding what inferences are reasonably open from the evidence it is important not to look at the evidence in a piecemeal way but as a whole to see what inferences can be drawn.  If there is an innocent explanation that is open then an inference of guilt cannot be drawn.

   (l)I can choose to accept and reject a witness's evidence, either in part or in whole.

6. In addition to the above general principles applicable in a criminal trial, because of the evidence I have heard during the course of the special proceeding, I direct myself in relation to the following aspects as to how that evidence can be used:

   (a)I am not bound to accept and rely upon the evidence of any witness, including the evidence of an expert witness.  I may reject the evidence of an expert witness if there is other evidence to support my findings, or if the opinion of the expert is unreliable.  Nonetheless, if there are no facts and circumstances which, in my view, cast doubt on the evidence of an expert, then I should accept that evidence.

   (b)The fact that a witness in this matter was declared to be a special witness and gave evidence through the arrangements available pursuant to s 106N of the Evidence Act 1906 (WA) is a routine practice of the court and I do not draw any inference against the accused from the use of this procedure.

   (c)The admissions made pursuant to s 32 of the Evidence Act are facts which are taken to have been proven by the prosecution.  These admissions were the subject of Exhibit 3 and related to DNA testing of blood swabs taken from Mr Pym.  These blood swabs were only relevant to the issue of identity[14] which, ultimately, was not in issue during the trial.

   (d)During the course of the cross‑examination of the prosecution witness Ms Kellie Raelene Moore, she was questioned in relation to statements she had made to the police on a prior occasion.  The purposes of these questions were to suggest she had said something different on a prior occasion to what she was now saying in her evidence.  The fact a witness may have said something different on a prior occasion is of course something that can be relevant when assessing the reliability or truthfulness of the evidence given by a witness in court.  However, what was said on a prior occasion outside of court and not under oath or affirmation is not the witness's evidence.  The evidence will be the witness's answer under oath or affirmation in court.  The only relevance of what a witness has said out of court on another occasion is for the purposes of assessing whether there is an inconsistency, and the extent of the inconsistency.

   (e)Further, the fact that a witness may have said something different on a prior occasion that does amount to an inconsistency does not mean I must reject that witness's evidence.  It is for me to determine whether there was an inconsistency, the extent of the inconsistency and whether it causes me to hold a doubt about that part of the witness's evidence, the entirety of the witness's evidence, or whether the inconsistency causes me to hold a doubt at all.

   [14] ts 285.

Uncontentious facts and relevant findings

1. Two witnesses were called by the State to give evidence about what took place within Mr Risi's house in Greenmount on 26 February 2022; the occupier of the house, Mr Barry Adam Risi and his then partner Ms Kellie Raelene Moore.

2. Both parties submitted I can conclude Ms Moore was an honest, accurate and reliable witness and accept her evidence.  I agree.  I found Ms Moore to be a witness who answered the questions she was asked without prevarication, embellishment or evasion.  Her answers were direct, detailed and responsive.

3. Her evidence was, for the most part, largely consistent with the evidence given by Mr Risi.  The variations in the evidence between the two was readily explicable due to minor differences in recollection, perception and perspective.  Both witnesses gave accounts that corroborated each other.  The credibility finding I have made with respect to Ms Moore assists me in the credibility finding I make with respect to Mr Risi which is that, in my view, he too was an honest, accurate and reliable witness.

4. There were many aspects of the evidence of Mr Risi and Ms Moore that did not appear to be contentious, even though they were not the subject of any formal admission.  Based on their evidence, I am satisfied of the following facts.

5. On 26 February 2022 Mr Risi was at his home situated in Greenmount.  It was a house he had recently moved into.  He was still in the process of unpacking.  Personal items, including tools and work equipment, can be seen throughout the house in the photographs tendered as Exhibit 1.[15]

   [15] ts 140.

6. Both Ms Moore and Mr Pym were also at the house.  Ms Moore was Mr Risi's (then) partner.  Mr Pym was someone who had recently started living at Mr Risi's house as a lodger.  He was to pay $100 per week in board and assist in the general upkeep of the house.[16]

   [16] ts 128.

7. Mr Pym had been living at the house for approximately a week.[17]  He was staying in a room coming off the main lounge room closed off with a black curtain.  This room can be seen in Exhibit 1.8.

   [17] ts 127.

8. Mr Pym had paid an advance sum of money to cover the first and second week of lodging.  Mr Risi's evidence was it was $300; Ms Moore's evidence was it was $400.  The inconsistency on this point is not material.  The money had been paid to Ms Moore's account[18] and Exhibit 2 confirms the sum to be $400.  I accept Ms Moore's evidence.

   [18] ts 128, ts 172.

9. Of the $400, $200 was to be provided to Mr Risi for the lodging.  Ms Moore transferred the remaining $200 to an associate of Mr Pym's to provide to Mr Pym.[19]  This is consistent with what is seen in Exhibit 2.

   [19] ts 129, ts 172 - ts 173.

1. All of this had happened earlier in the day but provides a background as to what then would take place later that evening.

2. In the events leading up to the relevant time, Mr Risi was in the lounge room.  He says he was watching television;[20] Ms Moore described him as being 'semi‑asleep' on the floor in the lounge room.[21]  Again, nothing of significance turns on this difference.  I am satisfied Mr Risi was in the lounge room.

   [20] ts 130.

   [21] ts 170, ts 171, ts 174.

3. Ms Moore was in the kitchen, making dinner.[22]  It is not necessary to identify her precise position within the kitchen as it was accepted by Ms Moore her vision of the hallway from wherever she was positioned in the kitchen was restricted.  The significance of this is discussed in further detail below.

   [22] ts 143, ts 170.

4. Because she was making dinner she thought it was about '6:30ish'[23] in the evening.  For reasons I will come to, in my view it was much later in the evening than this and would have been closer to 10.20 pm.

   [23] ts 170.

5. The exact whereabouts of Mr Pym are unclear.  Mr Risi described Mr Pym being in the lounge room with Mr Risi when an argument started regarding money.[24]  Ms Moore's evidence was Mr Pym was standing at a point in the dining room between the lounge and the kitchen when Mr Pym began to ask about money.[25]  The difference as to where Mr Pym was exactly when the argument started is immaterial.

   [24] ts 130.

   [25] ts 170.

6. What is evident is Mr Pym soon became involved in a conversation revolving around money which began to escalate.  Mr Pym became increasingly heated and abusive towards Ms Moore.[26]  I am also satisfied the argument was started by Mr Pym who wanted the remainder of his money from Ms Moore, and it was Mr Pym who escalated the conversation.

   [26] ts 174 - ts 175.

7. At some point, either at the time of the argument commencing or shortly thereafter, Mr Pym came into the dining area in front of the hallway leading to the front door.  This area can be seen in Exhibits 1.3, 1.4 and 1.7.

8. Similarly, either at the time or very shortly thereafter, Mr Risi moved from the lounge room, either with Mr Pym or to join up with Mr Pym, in the dining room area near the hallway entrance.  I am satisfied the time over which this was occurring was very short, which also accounts for the minor variations in evidence given by Mr Risi and Ms Moore as to where people were at what times.

9. As the argument became heated, Mr Risi asked Mr Pym to leave the house.[27]  Both Mr Risi and Mr Pym were speaking at each other in raised voices.[28]  Ms Moore described the volume of both as being 'slightly above the standard tone for which you'd talk to an individual, but it wasn't shouting or hollering'.[29]  I accept her evidence that Mr Risi was speaking in a 'typical, firm, but dad sort of tone, not yelling, not aggressive … same sort of behaviour that a parent, if you will, would address maybe a teenager who was behaving poorly'.[30]

   [27] ts 131.

   [28] ts 131.

   [29] ts 178.

   [30] ts 178, ts 199.

10. Mr Risi, whilst using the firm tone described above, began to usher Mr Pym out of the dining room towards the hallway.  Both Mr Risi and Ms Moore described a similar manner that Mr Risi adopted to usher Mr Pym out.  Mr Risi's evidence was:[31]

    I would say I ushered him out.  I was not physically ‑ I didn't grab hold of him or do anything physical.  It was just a motioning to come on, you've done your time, just out the door.

    [31] ts 131.

11. In cross‑examination Mr Risi said:[32]

    I was very careful in making sure that I, at no time, was either aggressive or manhandled [Mr Pym].  I'm not a violent person.  I would not have put hands on.  I would have verbally made him aware that I wanted him to leave.

    [32] ts 160.

12. Ms Moore gave an account that was very similar.  She said:[33]

    Cos [Mr Risi] kind of used a leading gesture without, you know, like 'you need to go, mate, 'without touching him or anything like that.  Just 'look mate, you need to go'.

    [33] ts 177.

13. At the same time Ms Moore made a gesture simulating that which Mr Risi made[34] which was indicative of someone gesturing to another to leave.  She confirmed she could see there was nothing in either of Mr Risi's hands.[35]

    [34] ts 177.

    [35] ts 204.

14. I am satisfied on the evidence that at this point:

    (a)Mr Risi was endeavouring to usher Mr Pym from the premises having told Mr Pym to leave.

    (b)Mr Risi was doing so in a non-confrontational and non-physical way.  There was no physical touching of Mr Pym during this exchange.

    (c)Mr Pym was more agitated and upset than Mr Risi.  Mr Risi was speaking to Mr Pym in a firm and authoritative manner to direct him to leave.  Mr Pym was behaving in an agitated manner that was verbally abusive towards predominantly Ms Moore.  However, his behaviour did not appear to be physically aggressive but more confrontational and insulting.

    (d)Mr Risi was seen to be unarmed and did not have anything in his hands.

15. Mr Pym began to walk down the hallway towards the front door.  Mr Risi was following[36] approximately 50 cm behind Mr Pym.[37]  Words were still being exchanged between Mr Pym and Mr Risi,[38] but Mr Pym was complying with Mr Risi's instructions to leave.

    [36] ts 132, ts 178.

    [37] ts 178.

    [38] ts 132, ts 178.

16. Ms Moore remained in the kitchen as she did not want to 'apply any more pressure to the situation'.[39]  Because of where she was positioned, she lost sight of both men shortly after they began down the hallway.  The only prosecution witness capable of describing what took place in the hallway was Mr Risi.  I will turn to this in more detail shortly.

    [39] ts 177.

17. Ms Moore said she lost sight of them but could still hear them travelling down the hallway towards the door.  This was for about '40 to 50 seconds'.[40]  At that point she described hearing:[41]

    The wooden door opening or just … like a knock sort of sound, you know? Like someone knocking against it or moving through it kind of thing.

    [40] ts 181.

    [41] ts 178.

18. In cross‑examination Ms Moore maintained what she heard was:[42]

    [W]hat sounded like the door either being hit by an elbow or hitting the wall or hitting - it could have been, there was boxes, and there was even a few other items in there, like tools and stuff like that … I'm pretty good with sounds … it was a hardwood door, and it made the knock sound in opening.

    [42] ts 199.

19. Ms Moore was taken to the statement she made to police during the early hours of the morning of 27 February 2022 after the incident had occurred.  She accepted she told the police 'I heard a sound like [Mr Risi] had been hit hard.  It sounded like a thud and a movement of belongings in the hallway.  [Mr Risi's] breath was forced out'.[43]

    [43] ts 202.

20. She accepted her statement to police would have included 'more finer details'[44] as it was fresher in her mind at that time.  But she never stated, nor was it directly put to her, that the sound she previously described as Mr Risi being hit hard was actually the 'knock sort of sound' she now identified as hitting a door.

    [44] ts 202.

21. Ms Moore's answer that she was able to include 'more finer details' at the time of making her statement, suggests she recognised that her evidence had not included the specific detail of the sound of Mr Risi being struck.  She went on to say 'I mean, I heard sounds, but I couldn't see them exit [and] enter.  I just heard the doorway hitting the things and stuff, or someone's arm, or I heard the knock, obviously, or the sounds of moving through the hallway'[45] (emphasis added).

    [45] ts 202.

22. Ms Moore's evidence suggests she heard multiple noises.  By saying she 'heard the knock obviously', she made it clear that this was in addition to any sound that may have resembled Mr Risi being struck.

23. Ms Moore's evidence was 'I heard the doorway, so they were most certainly at least at the doorway'.  She also said 'I don't believe they exited the house per se' which she then qualified by saying 'to say they left the premises would mention leaving the property entirely, which would be the car park, and there was most certainly no time for that'.[46]

    [46] ts 202.

24. I do not take from Ms Moore's evidence[47] that she was definitively excluding the possibility that Mr Pym or Mr Risi briefly stepped out and then re‑entered the house.  Her belief that Mr Pym did not leave the house must be considered in context.  She admitted she could not see the doorway from her position in the kitchen, so her belief was based on assumption rather than direct observation.

    [47] ts 202.

25. This has some relevance when I come back to examine the evidence of Mr Risi regarding what he says took place whilst Mr Risi and Mr Pym were at the front door.  Consistent with Mr Risi's evidence, what I conclude from Ms Moore's evidence is that she heard a struggle which took place near the front door of the hallway to the premises.

26. I also am of the view her evidence, particularly in relation to the sound she heard as a 'knock' or 'the doorway hitting the things and stuff', is consistent with Mr Risi's evidence he gave regarding escorting Mr Pym from the premises, closing the door and then starting to walk away back up the hallway.  I will discuss that in further detail below.

27. After hearing the 'knock' sound Ms Moore then heard a commotion in the hallway.  This is the altercation described by Mr Risi which is detailed further below.  She then saw both men emerge from the hallway back into the lounge area.  She said this was 'pretty well instantaneous … there wasn't, I wouldn't believe, a lot of time between the knock and the shifting backward to exit the hallway for which it [the altercation between both men] came into my line of sight'.[48]

    [48] ts 181.

28. I accept this is consistent with the rapid confrontation and overpowering of Mr Risi by Mr Pym that Mr Risi described in his evidence discussed in further detail below.

29. Upon both men returning to view, Ms Moore described Mr Pym holding Mr Risi with one hand and repeatedly punching him with the other.  She could not quantify the number of times other than 'they were repetitious and non-stop'.[49]  Mr Risi could not get away from Mr Pym other than by falling back towards the lounge room.

    [49] ts 181.

30. Mr Risi fell to the ground causing Mr Pym to lose his grip.  Mr Pym switched to punching Mr Risi with both hands.  The detailed account she gave of Mr Pym's assault upon Mr Risi was consistent with what was independently seen in the photographs that are Exhibit 1, particularly Exhibits 1.5, 1.7 and 1.9.

31. I will not repeat in detail Ms Moore's evidence about what she saw when Mr Risi and Mr Pym reappeared.  I am satisfied by this stage Mr Pym had inflicted the grievous bodily harm the subject of the charge.  However, Ms Moore's account of what took place afterwards may be relevant to what inferences I draw as to Mr Pym's state of mind at the relevant time of inflicting the grievous bodily harm.  I will address that question in further detail below.  Based on her evidence, I make the following findings:[50]

    (a)It was Mr Pym punching Mr Risi; Mr Risi did not punch back.  Mr Pym was either holding Mr Risi with one hand and punching him with the other, or using both hands to punch him.

    (b)Ms Moore did not see Mr Pym holding anything or using an implement.  I accept the speed of Mr Pym's punches may have made it difficult to see but I am satisfied if Mr Pym had used an implement, he no longer had it at this time.  If he had then I would expect to see a greater level of injury given the number of times Ms Moore describes seeing Mr Pym hit Mr Risi.

    (c)During the assault, Mr Risi was either on the ground, trying to stand, or being knocked back down.

    (d)The only resistance Mr Risi could offer was shielding his face with both hands, likely to protect the significant eye injury he had already sustained at this stage.

    (e)Neither Mr Pym nor Mr Risi said anything to the other; Mr Pym was 'heavy breathing' and Mr Risi was simply trying to shield himself.

    (f)Ms Moore was repeatedly yelling at Mr Pym to 'stop' and saying 'you're going to kill him' but this did not stop Mr Pym.

    (g)Mr Pym only stopped attacking Mr Risi when Ms Moore began hitting Mr Pym on his back with the extendable pole depicted in Exhibit 1.10.  She hit him multiple times with enough force to cause the welts and bruising which can be seen in Exhibits 5.2 and 5.9 - 5.11.  With the exception of the injury to Mr Pym's left hand (Exhibits 5.13 and 5.14) these are the only injuries that Mr Pym sustained.  In relation to the injury to Mr Pym's hand, I am satisfied that was caused by the repeated punches he delivered to Mr Risi.

    (h)Ms Moore struck Mr Pym multiple times with the extendable pole before she gained his attention.  He called her a 'fucking bitch' and swung at her several times but did not make contact.  This reprieve allowed Mr Risi to stand up in an effort to help Ms Moore.  Mr Pym turned his attention back to Mr Risi but stopped when Ms Moore intervened again with the pole.

    [50] ts 182 - ts 186.

32. Ms Moore told Mr Pym to leave.  She was still brandishing the extendable pole.  She said Mr Pym appeared:[51]

    [A] little lost, a little dazed, a little confused.  And I say that because his eyes, he kind of was looking around like he didn't know what was going on.

    [51] ts 187.

33. And when he exited the premises:[52]

    [Mr Pym] wasn't running, wasn't jogging.  He was walking, but kind of turned a few times towards it [the doorway].  He seemed to me a little confused.

    [52] ts 187.

34. I will return to the significance of this below, but I accept this evidence.

35. Ms Moore 'immediately called 000'.[53]  I have no evidence as to what time this occurred.

    [53] ts 188.

36. Detective Sergeant Debbieanne Searles gave evidence.  She was the investigating officer.  She was on duty that night.  At 10.20 pm she was tasked with the responsibility of investigating the matter.[54]

    [54] ts 221.

37. She also said that at about the same time[55] uniformed officers had established a protected forensic area at the house.  Accordingly, the 000 call must have been made shortly before that for uniformed officers to have received notification and to have attended the address.

    [55] ts 223.

38. Detective Searles headed to Mr Risi's house.  When she arrived the paramedics were still present.  Given the apparent serious nature of Mr Risi's injury it is unlikely paramedics would have remained at the house long.

39. This suggests to me that when Detective Searles arrived at the house it would have had to have been sometime after 10.20 pm, but still relatively close to when Ms Moore called 000.  It is for these reasons I am satisfied the assault against Mr Risi was closer to 10.20 pm than it was to '6:30ish' as suggested in Ms Moore's evidence.

40. Detective Searles conducted a preliminary search of the scene, including where the altercation had taken place.  Of particular interest to her was locating a screwdriver and a syringe.[56]

    [56] ts 229.

41. The search also extended to the nearby areas including the likely pathway travelled by Mr Pym to where he was ultimately arrested at a location nearby.  No screwdriver or similar implement was located along that route.

42. Similarly, in relation to the interior of Mr Risi's house, the only syringes located were syringes found within Mr Pym's room.  They were located on a bedside table or similar location.  They did not appear to be in a state which would suggest they had been hastily grabbed at.[57]

    [57] ts 229.

43. I draw no prejudicial inference against Mr Pym or his character due to the presence of syringes inside his room.  The relevance of this evidence is their location.  The fact the only syringes located in the house were in Mr Pym's bedroom suggests against Mr Risi stabbing Mr Pym with a syringe during the altercation that took place.  This is discussed in further detail below.

44. Detective Searles also gave evidence Mr Pym was arrested at 10.57 pm at a location nearby.[58]

    [58] ts 221.

45. I have no evidence as to where the place of arrest is or its proximity to Mr Risi's house in Greenmount, other than Detective Searles's evidence it is 'nearby'.

46. The body worn camera footage from Officer Singh (Exhibit 8.1) shows Mr Pym running at the time of his arrest.  This suggests he had been on foot since leaving Mr Risi's premises.  The fact the place of arrest was 'nearby' also suggests Mr Pym had not travelled far from Mr Risi's house when he was arrested.  It also suggests at least 37 minutes had passed between when Mr Pym left the house and at the time of his arrest by Officer Singh.

47. In opening its case, the State suggested Mr Pym's flight, hiding and the disposal of the screwdriver demonstrated his consciousness of guilt.[59]  The State did not explain how his conduct would allow an inference to be drawn as to his guilt.

    [59] ts 114.

48. In closing, the State quite properly abandoned this aspect of its case,[60] acknowledging that consciousness of guilt was not the only possible inference to draw.  The State could not exclude the equally plausible explanation that Mr Pym was fleeing from police because of psychosis which is discussed in further detail below.

    [60] ts 276.

1. Detective Searles also then attended St John of God Hospital at 2.38 am on the morning of 27 February 2022 for the purposes of speaking to Mr Pym.[61]  By this stage it was approximately at least four hours after the altercation had taken place between Mr Risi and Mr Pym.

   [61] ts 235.

2. The 'interview' conducted with Mr Pym was audiovisually recorded and received as Exhibit 9.  Both parties rely upon the mixed statement made by Mr Pym during the course of that recording, as well as statements made by Mr Pym during the recordings which are Exhibits 7.1, 7.2 and 8.2.  The contents of the conversations captured in these recordings are discussed in further detail below.

Medical evidence

1. Paramedics took Mr Risi to Royal Perth Hospital where he was admitted and examined by doctors within that hospital.  None of these doctors were called to give evidence.

2. By agreement, Dr Deepaysh Dutt was called by the State to give expert opinion evidence.  His evidence was based on his review of the medical notes relating to Mr Risi as well as a medical 'report' prepared by one of the treating doctors.

Qualifications and expertise

1. Dr Dutt stated he is a qualified medical practitioner holding a Doctor of Medicine and a Bachelor of Science from the University of Western Australia, who has been practising as a doctor for approximately 'three and a bit' years.[62]

   [62] ts 248.

2. At the time of giving evidence he held the position of a registrar of ophthalmology with Royal Perth Hospital, and held both clinical and surgical roles within the hospital.[63]

   [63] ts 248.

3. No objection was taken as to Dr Dutt's qualifications or his level of expertise.  I am satisfied Dr Dutt held the necessary level of expertise to give expert evidence in relation to the ophthalmological opinions he offered.

Evidentiary foundation for the opinions offered

1. During Dr Dutt's evidence, it became clear that some notes were missing due to a photocopying error.  Based on his experience, Dr Dutt believed the missing notes likely contained 'examination findings and some management things,[64] but he could not say for sure.

   [64] ts 267.

2. Although he could not be certain about what the missing notes might contain, Dr Dutt acknowledged he could give a more complete opinion if he had access to them and expressed a preference for this.[65]

   [65] ts 267.

3. Ms Veltman, raised as a 'concern'[66] that Dr Dutt did not have access to all of the notes.  This did not appear to be an objection as to the receipt of Dr Dutt's evidence.  Proceedings were paused to allow the State to make enquiries to see whether arrangements could be made to provide Dr Dutt with the missing portion of the notes.

   [66] ts 269.

4. Upon resumption I was told approximately seven pages of notes were missing due to photocopy error.  Getting the original notes from archiving would cause further delay.  The State confirmed it was content to proceed on the state of the evidence as it was and, ultimately, Ms Veltman confirmed the defence was also content to do so.  Neither counsel sought to question Dr Dutt on what effect, if any, the missing portions would have on the opinions he had offered.

1. Neither counsel made any submissions as to how the missing notes should affect the weight to be attributed to Dr Dutt's opinion.  Seemingly both appear to agree that it had little effect upon his opinion.

2. Ultimately, Ms Veltman submitted I could be satisfied based on Dr Dutt's evidence that grievous bodily harm had been established, notwithstanding the missing notes.[67]  This was, in my view, an appropriate submission for Ms Veltman to make.  However, I am aware the prosecution still carries the burden of proving this element beyond reasonable doubt.

   [67] ts 312.

3. While the missing notes were of course unfortunate, I do not believe they prevent me from accepting Dr Dutt's opinion.  The issue only affects how much weight I should give his opinion.  Attempting to determine how the missing notes might change his opinion would be speculative.

4. Based on the materials Dr Dutt did have, he was able to explain his reasoning clearly.  He also was able to point out where the missing information may have been relevant to his opinion.  I am satisfied that the missing notes did not materially impact his opinion or the evidence he gave.

Substance of the medical evidence given

1. Dr Dutt confirmed upon presentation Mr Risi was suffering from the following combination of injuries:

   (a)Penetrating wounds to the orbit[68] and brain[69] along with a intracranial haemorrhage.[70]

   (b)Superficial stab wounds to the anterior and posterior chest and the posterior neck.[71]

   (c)Fractures to the areas of the face surrounding the orbital socket.  This consisted of a sphenoid sinus fracture[72] and a lateral maxillary face fracture.[73]

   (d)Bleeding behind the eye which had resulted in an 'orbital compartment syndrome'.  As a consequence of the orbital compartment syndrome Mr Risi was already evidencing symptoms of optic nerve dysfunction.

   (e)Paraesthesia to the C6 area of the cervical spine.  Dr Dutt accepted this was beyond his area of expertise and, quite properly, was unable to answer questions in relation to this injury.[74]  In light of the state of the evidence, or lack thereof, I make no findings with respect to this injury.

   [68] ts 250.

   [69] ts 251.

   [70] ts 252.

   [71] ts 253.

   [72] Dr Dutt indicated the sphenoid sinus would be located at the intersection of two lateral planes drawn from the bridge of the nose and the temple; see ts 254.

   [73] ts 253; Dr Dutt explained the lateral maxillary sinus wall is located at the cheekbone underneath the eye socket; see ts 254.

   [74] ts 256.

2. Due to the orbital compartment syndrome and the risk it was presenting to Mr Risi's optic nerve, the decision was made to proceed with a lateral canthotomy.  A lateral canthotomy is a procedure where an incision is made to the lateral aspect of the eyelid margin (where the upper and lower eyelids meet on the outer corner of the eye) to relieve pressure being placed on the eye from the internal bleeding.[75]

   [75] ts 249.

3. Due to the limitations caused by him giving an opinion based upon his interpretation of the report and the notes that had been taken, Dr Dutt could not say definitively as to what caused the bleed behind the eye.  That is, he could not say if it was because of the penetrating wound to Mr Risi's eye or the penetrating wound to his brain.  Either could have caused the bleed.[76]

   [76] ts 252.

4. He was also unable to say definitively whether the penetrating wound to the brain was a continuation of the penetrating injury to the orbit (as he had not had the advantage of seeing any scans that had been taken of the affected area), but he agreed it would be consistent.  I am satisfied given the evidence Mr Risi gave of sustaining a single blow to the eye, the penetrating wound to the eye and the brain were a continuation of the same injury caused by the same, single action.

5. Dr Dutt accepted there had been occasions when he had seen bleeds behind the eye resulting in orbital compartment syndrome caused by punches and blunt force trauma.  However, he explained in his experience the word 'penetrating' was generally used when something foreign went into the orbit.[77]  The word 'penetrating' would also be similarly used when describing something foreign going into the brain.

   [77] ts 251.

6. When asked whether the language of a penetrating wound of the brain would be consistent with a punch to the eye socket, Dr Dutt's response was:[78]

   In my experience, a punch to the eye socket does not cause penetrating injuries of the cranium or the brain.  That's just in my experience.

   [78] ts 252.

7. Mr Risi was also observed to have what were referred to as 'superficial stab wounds' to the anterior (front) and posterior (back) of the chest, as well as two superficial stab wounds to the posterior neck.[79]  These injuries are depicted in Exhibits 6.3, 6.6 and 6.7.  Dr Dutt was not questioned to any degree about these injuries.

   [79] ts 253.

8. In her closing submissions, Ms Veltman argued that without medical evidence explaining how the injuries were caused, I could not determine whether they were from an implement or a punch.

9. The rule in Browne v Dunn[80] has been described as comprising two limbs:[81]

   (a)unless notice has already been given of the party's or cross‑examiner's intention to rely upon such matters, a party or cross‑examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross‑examination the grounds upon which the evidence is to be disbelieved; and

   (b)unless notice has already clearly been given of the party's or cross‑examiner's intentions to rely upon such matters, a party or cross‑examiner must put to an opposing witness in cross‑examination the nature of the case upon which it is intended to rely in contradiction of the witness's evidence, especially where that case relies upon inferences to be drawn from other evidence.

   [80] Browne v Dunn (1893) 6 R 67.

   [81] NCH v The State of Western Australia [2013] WASCA 29 [99].

10. Where it was suggested to Dr Dutt during examination‑in‑chief, without objection, that the wounds were stab wounds ‑ and where he did not appear to disagree ‑ it was incumbent upon the defence, under either limb of the rule, to challenge this by proposing that the wounds could have been caused by punches if that was an inference they intended to suggest was open from the evidence.

11. But in any event, expert evidence will only be required (and indeed, is only admissible) when 'the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgement on the matter without the assistance of witnesses possessing special knowledge or experience in the area'.[82]

    [82] R v Bonython (1984) 38 SASR 45, 46; King CJ cited with approval in Osland v The Queen (1998) 197 CLR 316, 336.

12. The injuries depicted in Exhibits 6.3, 6.6 and 6.7 are visually consistent with being inflicted with a penetrating implement and are not visually consistent with a blunt force trauma tear type laceration.

13. These injuries are also consistent with Mr Risi's evidence, discussed in further detail below, that he recalls being struck with 'something steel[83] in the silver shining'.[84]  I am satisfied Mr Risi's reference to 'something steel in the silver shining' was a reference to some kind of metal implement.

    [83] Whilst the transcript records what was said to be 'still' having listened to the recording again, I am of the view what is said is 'steel' which accords with my recollection of the evidence given by Mr Risi.

    [84] ts 133.

14. Mr Risi's evidence was that very shortly after the first blow to his right eye (which, significantly, was where the penetrating wound to his orbit and brain was located) he then sustained 'two or three [blows] in the top of [his] head'.[85]  He then thought he 'received one in [his] right temple'[86] as well as 'one hit … somewhere around [his] collarbone'.[87]  Notably these areas coincide with similar lacerations that can be seen in Exhibits 6.3, 6.4 and 6.5.

    [85] ts 133.

    [86] ts 133.

    [87] ts 137.

15. Ultimately, the only real relevance of these superficial wounds is in relation to determining Mr Pym's state of mind, as it bears upon the question of the potential unlawfulness of his actions and his intent when he struck Mr Risi in the eye, causing the grievous bodily harm.  I will discuss this in further detail below.

16. However, I am satisfied these superficial wounds, described as 'stab wounds' were caused by Mr Pym striking Mr Risi with an implement.  This is also consistent with Mr Pym's own admission as captured in Exhibit 7.2 that he struck Mr Risi with a screwdriver, which is also something that I will come back to.

17. In relation to the two fractures, the sphenoid sinus fracture and the fracture to the lateral maxillary sinus wall, Dr Dutt stated in his experience he had seen these types of fractures caused by either penetrating or blunt forces.[88]  He also accepted the fractures could have been caused from one single blunt force blow, however the example he gave of where he has seen that happen was in car accidents.[89]  Clearly that is not applicable here.

    [88] ts 254.

    [89] ts 263.

18. He also accepted that a single penetrating injury to the orbit may cause fractures to the orbital floor, the orbit, the temporal bones and the sphenoid bones as they are all in the same area.  But in relation to the fracture to the maxilla, his evidence was it was less likely this fracture would be caused by the same blow as it was in a different area.[90]

    [90] ts 266.

Elements of the offence

1. The elements of the offence the State must satisfy me of beyond reasonable doubt are as follows:

   (a)that Mr Pym was the offender who did the act;

   (b)that Mr Risi sustained grievous bodily harm;

   (c)that Mr Pym caused the grievous bodily harm sustained by Mr Risi;

   (d)that at the time of causing the grievous bodily harm, Mr Pym intended to maim, disfigure, disable or do grievous bodily harm to Mr Risi; and

   (e)that Mr Pym did so unlawfully. 

2. Whilst admissions were made pursuant to s 32 of the Evidence Act they were not admissions as to the elements of the offence. In the absence of an admission being made pursuant to s 32 of the Evidence Act, the prosecution must still prove each and every element beyond reasonable doubt even if it has been identified as being 'not in issue' as part of the defence case.[91]

Identity

[91] Stubley v The State of Western Australia [2011] HCA 7, see discussion by Heydon J [88] - [94].

1. It was not in dispute that Mr Pym was the person who was the alleged offender.  Despite not being in dispute, no formal admission was made to this effect and so the element of identity is still a matter that I must be satisfied of beyond reasonable doubt.

2. I am satisfied the identification of Mr Pym as the offender has been established beyond reasonable doubt in light of Mr Risi and Ms Moore's familiarity with Mr Pym as a known associate.  They gave direct evidence identifying him as the alleged offender.  This was a case of positive identification by way of recognition.[92]

   [92] Festa v The Queen (2001) 208 CLR 593.

3. This element has been established.

Grievous bodily harm

1. An injury will amount to a 'grievous bodily harm' if it is a bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.[93]  In this context, 'likely' conveys the meaning of a substantial, real, and not a remote chance.  The word 'likely' means 'probable' and not 'possible', that being its natural meaning.

   [93] Section 1(1) of the Code.

2. In deciding whether the injury inflicted was an injury capable of amounting to grievous bodily harm, I must have regard to the nature of the injury itself and not to the surrounding circumstances and the availability of medical assistance.[94]

   [94] Lewis v The State of Western Australia [2008] WASCA 94 [30].

3. The State's case is that Mr Pym inflicted a penetrating wound to Mr Risi's right eye socket continuing into his brain.  This is the injury identified by the State to be the grievous bodily harm.[95]

   [95] ts 115.

4. In opening its case, the State alleged that the injury constituted grievous bodily harm on the basis that:

   (a)it carried a significant risk of permanent injury, specifically blindness, if surgery (a lateral canthotomy) had not been performed; and/or

   (b)it resulted in an actual permanent injury to health, namely double vision.

5. By the close of its case, the State had abandoned the second limb.  There is no need for me to consider the question of whether Mr Risi sustained permanent injury to health any further.

6. The defence accept the evidence given by Dr Dutt satisfies the legal definition of grievous bodily harm.[96]

   [96] ts 312.

7. Dr Dutt's evidence was where a patient presents with orbital compartment syndrome, 'the consequence of not doing a lateral canthotomy is blindness'.[97]  He explained the risk of blindness arises when bleeding behind the eye creates pressure, pushing the eyeball forward and stretching the optic nerve, which may lead to damage.[98]  Because of the significant risk, ophthalmologists 'treat it very seriously'.[99]

   [97] ts 258.

   [98] ts 259.

   [99] ts 258.

8. The clinical signs suggestive of a bleed behind the eye are:[100]

   (a)the eye feels rock hard;

   (b)the eye is restricted in movement;

   (c)impaired vision; and

   (d)the pupil's ability to respond to light is impaired.

   [100] ts 258.

9. The notes recorded Mr Risi's symptoms upon presentation as being:[101]

   (a)right eye tense globe;

   (b)reduction in vision;

   (c)eye orbital movement intact;

   (d)vision in right eye is 'counting fingers'.  Dr Dutt had previously indicated in his evidence this was something that indicated reduced vision; and

   (e)pressure in the right eye was 46 when it ought to have been between 10 and 20.

   [101] ts 260.

10. Mr Risi's symptoms were consistent with what would be suggestive of a bleed behind the eye.

11. When asked 'if there is a bleed and nothing is done, how likely is blindness?' Dr Dutt responded he could not give a percentage and could not comment on likelihood.[102]  In the court's experience, this is not an atypical response when medical doctors are asked to opine as to likelihoods.

    [102] ts 260.

12. However, as noted above at [118], the assessment of 'likely' does not require a quantification of probability by way of a percentage.  'Likely' simply means 'probable' as opposed to 'possible'.

13. When framed as a hypothetical as to what he might have expected to occur if Mr Risi presented with the symptoms he did and was left to be treated conservatively, Dr Dutt's opinion was:[103]

    [I]f it were a true retinal orbital bleed behind the eye and if it was truly progressing then it's very likely that it would be significant for the patient.

    [103] ts 261.

14. I am satisfied on the evidence regarding Mr Risi's clinical presentation and the nature of the wound he received, he was suffering from a true retinal orbital bleed behind the eye.  If left untreated, it was likely (in that it was probable, rather than possible) he would have sustained some form of permanent impairment to his vision by way of damage to the optic nerve.

15. I am satisfied this element has been established.

Causation

1. The question for resolution posed by this element is whether Mr Pym caused the penetrating wound to Mr Risi's eye.

2. The answer to that question is to be determined by applying my common sense to the facts as I find them to be, remembering that in deciding the question of causation I am attributing legal responsibility in a criminal matter.[104]

   [104] Campbell v The Queen [1981] WAR 286, 290.

3. In my view, the starting point in resolving this question is the objective fact Mr Risi has sustained a penetrating wound to the eye.  Whilst Dr Dutt acknowledged orbital compartment syndrome could be caused by blunt force trauma, as noted above at [100], the use of 'penetrating wound' would ordinarily be inconsistent with describing such an injury if caused by a punch.  I am satisfied the injury was caused by a foreign object, namely an implement, being plunged into Mr Risi's eye.

4. As noted above at [46] - [48] and [58] - [60] of the findings I have made, there were only two people in the hallway who were capable of inflicting the penetrating wound sustained by Mr Risi: Mr Risi or Mr Pym.

5. Dr Dutt was not asked as to whether, from a medical perspective, the injury was one that could have been self-inflicted.  I will not speculate as to what his response may have been if he had.  However, from the evidence received it is implausible to me that Mr Risi would have intentionally self-inflicted this injury.

6. Logically, this suggests only two possible explanations for how the injury was caused:

   (a)Mr Risi unintentionally caused the injury to himself; or

   (b)Mr Pym caused the injury to Mr Risi.

7. The first of these logical propositions is entirely speculative and entirely inconsistent with the evidence given by Mr Risi, which is discussed in further detail below.

8. As noted above at [75], shortly after the incident, Mr Pym was arrested.  He was at the time of arrest questioned following caution.  His answers to those questions were captured on body worn camera footage which is Exhibit 7.1.  This also forms part of the mixed statement referred to above at [81] relied upon by the parties and was received without objection.  I accept it is admissible as part of a mixed statement that contains admissions against interest made by Mr Pym.

9. During the course of the conversation recorded in Exhibit 7.1 (and also captured in Exhibit 8.2) Mr Pym makes the following relevant admissions:

   (a)he repeatedly states to Officer Singh 'I was stabbed by a needle' in the right-hand side of his neck;

   (b)he identifies 'that bloke' as being the person who stabbed him.  He subsequently identifies 'that bloke' as being 'the person I've committed the assault on' (emphasis added);

   (c)after Mr Pym was stabbed with the needle he assaulted the person because the person 'grabbed me and reckoned he was taking me into his backyard to rape me.  And he reckoned he was gonna put me on the kerb and he reckoned he was gonna drag me into his backyard and rape me and I've defended myself'; and

   (d)In order to defend himself, Mr Pym said 'all I remember was grabbing anything close to me to protect myself as he was sedating me and paralysing me with what he stabbed me with'.

10. Exhibit 7.2, was also a body worn camera recording of a continuation of the conversation Mr Pym was having with Officer Singh.  During the course of that recording Mr Pym relevantly said:

    (a)Mr Pym was asked what it was he used and he responded 'from what I could glimpse here, I grabbed the side and it was like a screwdriver' (emphasis added).  Mr Risi gave evidence that a bag depicted in Exhibit 1.2 as being by the right side of the front door was a tool bag containing tools;[105] and

    (b)Mr Pym explained he threw the screwdriver 'off the side of the road' before he 'hit the highway, I'm not too sure'.

    [105] ts 140.

11. At [80] I already made mention of the conversation between Mr Pym and Detective Searles and the circumstances in which it occurred.  This conversation is the subject of Exhibit 9.  In this recording Mr Pym is clearly seen to be in a much more agitated state than what he was in Exhibits 7.1, 7.2 and 8.2.  This is discussed in further detail below.

12. During the course of this conversation Mr Pym said:

    (a)'I had to fucking bash someone to protect me life when he reckons he was gonna rape me and put me in a fucking bin after he stabbed me and paralysed me with a fucking needle in the fucking neck'; and

    (b)'[I]f that dog's still alive after what I did to him, I'm going to kill him again'.

13. In closing submissions Ms Veltman submitted I might not treat the admissions made by Mr Pym as being reliable given no screwdriver was found, Dr Dutt had stated the injury could possibly ‑ but not likely ‑ have been caused without an implement, and that Mr Pym was delusional at the point in time of making these statements.

1. Seemingly, self‑contradictorily, she also submitted I could rely upon those statements as being reliable for the purposes of giving rise to the question of self‑defence.  I will deal with both the issue of his delusional state and self-defence in further detail below.

2. I accept the reliability of Mr Pym's purported admissions must be examined.  The reliability of those purported admissions must be considered in the context of the findings I have already made that the penetrating wound to Mr Risi's eye was not caused by a fist but by the introduction of an implement into his eye.

3. The reliability of these purported admissions ought to also be considered in the context of Mr Risi's evidence about what took place in the hallway after Ms Moore lost sight of them both.  That evidence was as follows:

   (a)'I was on the inside of the house and using myself to try and create a barrier to try and move him towards the front door'.[106]

   (b)The placating manner in which Mr Risi was acting and the behaviour he describes is entirely consistent with Ms Moore's description of how Mr Risi was behaving as outlined at [40] ‑ [44] above. The consistency of Ms Moore's evidence with Mr Risi's lends corroboration to Mr Risi's credibility.

   (c)'I recall getting to the front door and breaking the conversation off … as far as I can recall, he left the house.  He'd gone through the front door and left.  I would have shut the door to make sure he wasn't able to come back in, but that would be an assumption.  I can't recall'.[107]

   This part of Mr Risi's evidence is consistent with Ms Moore's evidence and the findings I have made as discussed at [52] ‑ [57]. Once again, this adds corroboration to Mr Risi's account and adds to the credibility of his evidence.

   (d)'From what I recall, I've answered the door to him … he's come through the door.  I felt an impact in my head … I remember hitting the floor, and from that point on I can feel [the] impact of something hitting me'.[108]

   (e)'I'm still certain, I see, and there was something steel in the silver shining in when he went to punch me the first time.  I can still see that'.[109]

   In my view, this aspect of Mr Risi's evidence is entirely consistent with him describing an implement being held by Mr Pym, and consistent with the purported admission made by Mr Pym appears to admit to doing in the excerpts of the recorded conversation I have outlined above at [141(d)].

   [106] ts 132.

   [107] ts 132.

   [108] ts 133.

   [109] ts 133.

4. Additionally, as I have already discussed above at [101] ‑ [110], Mr Risi gave evidence of Mr Pym inflicting further blows to his body resulting in superficial stab wounds consistent with the use of an implement as opposed to being injuries caused by fists.  This lends further support to the reliability of the admission made by Mr Pym.

5. In my view, notwithstanding any delusions Mr Pym may have been under (discussed in further detail below) at the time of making the admissions contained in Exhibits 7.1, 7.2, 8.2 and 9, I am satisfied when considered in the context of the entirety of the evidence, they are reliable and do amount to an admission by Mr Pym he assaulted Mr Risi with some kind of implement, likely a screwdriver.

6. When viewed in the context of the entire body of evidence ‑ including Mr Risi's evidence, Mr Pym's admissions, and the consistency of the account of both men with the nature of the injury as a penetrating wound ‑ I am satisfied that Mr Pym inflicted the injury by striking Mr Risi's right eye with an implement, most likely a screwdriver taken from the tool bag shown in Exhibit 1.2.

7. Having come to this conclusion, based on the combination of Dr Dutt's evidence, along with Mr Risi's account of being struck in the right eye and Mr Pym's admission that he struck Mr Risi with a screwdriver, I am capable of making the additional findings:

   (a)This strike caused the penetrating wound to the orbit, which extended into Mr Risi's brain, resulting in a penetrating brain injury.

   (b)At a minimum, the wound to the orbit led to a bleed behind the eye, causing orbital compartment syndrome.

   (c)The fracture to the sphenoid sinus was likely caused by the same act that inflicted the orbital wound.  While it is less likely that the fracture to the lateral maxillary sinus wall resulted from the same blow, this possibility cannot be ruled out.

   (d)Regardless, Mr Pym attempted multiple strikes to Mr Risi's head, neck, and upper chest with the implement he was holding.  While some of these strikes landed, they fortunately only caused superficial wounds.

   (e)Exhibits 6.3 (upper chest/clavicle), 6.4 (right temple), 6.5 (front left crown), 6.6 (two wounds to the back of the neck), and 6.7 (mid‑lower back) indicate at least seven additional blows inflicted by Mr Pym, in addition to the significant penetrating wound to Mr Risi's right orbit.

8. In light of the findings I have made at [150] and [151] I am satisfied Mr Pym caused the penetrating wound to Mr Risi's eye which amounted to grievous bodily harm.

9. I am satisfied this element is established.

Unlawful

1. For the purposes of s 294 of the Code the word 'unlawful' means prohibited by law or contrary to law and not excused.[110]

   [110] Houghton v The Queen [2004] WASCA 20 [121].

2. In opening the defence case, Ms Veltman said the question would be one of unlawfulness and at the conclusion of the evidence, I would hold a doubt because:

   (a)any harmful act Mr Pym may have inflicted was responsive and done in self-defence pursuant to s 248 of the Code; and/or

   (b)the penetrating wound may have been inflicted because of either an unwilled act (within the meaning of s 23A of the Code) or accident (within the meaning of s 23B of the Code). 

3. In referring to 'the defence case' I do not suggest Mr Pym has an evidentiary burden to discharge or that the onus is upon him to prove the lawfulness of his actions.  Consistent with the directions I have given myself regarding the evidentiary onus, it is upon the prosecution to negative beyond reasonable doubt any lawful defences which arise so as to prove beyond reasonable doubt Mr Pym acted unlawfully. 

4. Notwithstanding, only those defences or avenues capable of leading to the accused's acquittal arising from the evidence could, ordinarily, be left for the jury's consideration.[111] I consider this to be what s 42(4)(b) of the CLMI Act means when it states, 'an accused may raise any defence that the accused could raise at trial'.  Before a defence can be raised, the evidentiary foundation for that defence must be established.

Unwilled act and accident

[111] See Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107; Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158; Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 as discussed in Jones v The State of Western Australia [2024] WASCA 115 [71] - [75].

1. The operation of s 23A and s 23B of the Code draws a distinction between the unwilled physical acts or omissions of an accused apart from their consequences (s 23A) and the 'accidental outcome of his willed acts' (s 23B).  Section 23A is not concerned with the consequences of an act which the accused has willed.[112]

   [112] Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, 227 (Kaporonovski).

2. The notion of 'will' imports a consciousness in the actor of the nature of the act and a choice to do an act of that nature.  This is not to be confused with the notion of intent, which usually relates to the consequences or result of the act.[113]

   [113] R v Falconer (1990) 171 CLR 30 (Falconer).

3. There is a presumption or inference that an act done by a person who is apparently conscious is a willed act done voluntarily.  The presumption accords with and gives expression to common experience that the acts of a person who is apparently conscious and has the capacity to control his actions is done by choice.[114]

   [114] Falconer [9].

4. Conversely, s 23B will apply if the consequence was not one that was intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person.[115]  This imports both a subjective and an objective requirement; the accused's subjective intention in that the outcome of the act was not intended or foreseen and an objective requirement that the outcome would not have been foreseen by a reasonable person.[116]

   [115] Kaporonovski (231).

   [116] Stanik v The Queen [2001] WASCA 333 [83].

5. Before either defence can be left, the trial judge must be satisfied that on the evidence, taken at its highest in favour of the accused, a reasonable jury properly instructed could have a reasonable doubt that each of the elements of the defence or an element of the defence had been negatived.  If so, then the defence must be left.  If not, then the defence cannot be left.[117]

   [117] Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [36].

6. At the conclusion of the evidence, I was not satisfied there was an evidentiary foundation to allow for either defence of unwilled act or accident to be enlivened.  Ms Veltman could not direct me to any evidence of fact, or collection of facts, that would allow such an inference to be open.  Accordingly, I was not prepared to leave these defences for the prosecution to negative.[118]

Self-Defence

Was there a harmful act?

[118] ts 280.

1. A harmful act done by a person is lawful (and therefore will not be prohibited by law or contrary to law and will be excused) if it is done in self-defence.  A harmful act will be done in self‑defence if it meets the criteria provided for in s 248(4) of the Code.

2. Pursuant to s 248(4)(a) Mr Pym's harmful act of stabbing Mr Risi in the eye will be done in self‑defence if 'the act is necessary to defend [Mr Pym] from [Mr Risi's] harmful act'.  As can be seen, before s 248 can operate, there must be a harmful act, including a harmful act that is not imminent.  The prosecution will negative the operation of s 248 if it establishes beyond reasonable doubt that Mr Risi did not commit a harmful act.

3. The only evidence capable of suggesting Mr Risi committed a harmful act against Mr Pym is Mr Pym's statement to Officer Singh that he had been stabbed in the neck and/or throat by Mr Risi with a needle.  That statement was made in the context whereby he also said:[119]

   [119] Exhibit 7.1; Exhibit 8.2.

   (a)'I was stabbed in the neck sir, but I've rubbed it like that there, so it is invisible at the moment' (emphasis added);

   (b)'I'm in an amazing amount of pain and psychotic frigging things';

   Notwithstanding the 'amazing amount of pain' Mr Pym states he is in, at the time of making this claim he appears to be fairly flat in affect;

   (c)He explains to the officer he is 'just trying not to let this needle that I've been stabbed with paralyse me, sir';

   (d)'[T]he person I've committed the assault on is somehow psychosising on me sir … I think he's trying ‑ attacking my brain with whatever he's just stabbed me with … whatever he had in his brain';

   (e)'I've heard when people stab you with hypodermics they have -get access to some sort of ability if it isn't medically treated';

   (f)'After he stabbed me with a needle, he reckoned he was going to make me ‑ while I was passing out, after he stabbed me with the needle, he reckons ‑ he grabbed me and reckoned he was taking me into his backyard to rape me';

   (g)'[H]e reckons he could kill anyone he wanted';

   (h)'[A]ll I remember was grabbing anything close to me to protect myself as he was sedating me and paralysing me with what he stabbed me with'; and

   (i)'I heard when junkies stab you with their needles, that they can induce you into psychosis and attack your brain and turn you into something, and unless you turn into it, they'll make you throw up to death'.

4. As I understand it, other than the suggestion that Mr Risi stabbed Mr Pym in the neck with a needle, it is not suggested that I should treat any of these statements made by Mr Pym as being reliable and what actually occurred.

5. Just as the reliability of Mr Pym's admission to stabbing and assaulting Mr Risi ought to be assessed against corroborative evidence, so too must his claim of being stabbed with a syringe be evaluated in light of the surrounding evidence.

6. Photographs of Mr Pym's neck taken at the time of his arrest were tendered as Exhibit 4.  It is very clear from those photographs Mr Pym has sustained no injury to his neck at all, let alone the kind of injury one might expect if he had been stabbed in the neck with a syringe.  Again, as I understand it, there is no suggestion I should accept Mr Pym's explanation that the absence of apparent injury is because Mr Pym had in fact rendered any injury sustained invisible through the process of rubbing it.

7. As noted above at [16] I cannot, and have not, had regard to the psychiatric evidence which was relied upon for the purposes of the div 2 hearing.  However, it is still evident to me from Mr Pym's statements outlined above, as well as the following statements in Exhibit 9, that he was in a delusional state when making them:

   (a)'I'm not impressed at all how I've been stabbed with this needle in the neck and reported how it was paralysing me';

   (b)'I was telling them [the doctors] my brain was clicking and stuff, and I started hearing voices and started going off and stuff' (emphasis added); and

   (c)'I asked for painkillers.  I was hearing things.  I was like "what's that voice? What's that voice?" And he was like "help me, help me" and he goes "guy, there's no voice, there's no voice"' (emphasis added).

8. I do not consider Mr Pym's explanation he was stabbed by Mr Risi in the neck with a syringe to be a reliable statement.  I reject that part of the evidence.  Consistent with what I have outlined above at [21(g)] I put that explanation to one side.

9. I have already outlined Mr Risi's evidence above at [148], which I accept, and the findings I have made at [151] based on that evidence.  In addition to those findings, I am also satisfied at the time of striking Mr Risi with the implement, Mr Risi was standing by the door doing nothing.

10. Consistent with the evidence from Detective Searles as to the absence of any syringes, either in the hallway or in the house (other than Mr Pym's bedroom) I am satisfied the reason for that is because Mr Risi did not have a syringe, nor was he armed in any way.

11. Consistent with the finding I have made at [62(g)] there were no injuries on Mr Pym attributable to Mr Risi, because Mr Risi committed no harmful act against Mr Pym.

12. On that basis I am satisfied, as a question of fact, Mr Pym did not do his harmful act to defend against a harmful act by Mr Risi because there was no harmful act by Mr Risi.

Did Mr Pym believe there was a harmful act?

1. However, s 248(4)(a) applies if the person believes the act is necessary to defend the person from a harmful act.  In the event Mr Pym believed there to have been a harmful act that he was defending himself against, even though there was no harmful act, then Mr Pym's harmful act may still be potentially lawful under s 248(4)(a).  Of course, this would require Mr Pym to hold that belief at the time of doing the harmful act.

2. Ordinarily the evidentiary foundation for the subjective aspect of the accused's belief will be evidence from the accused.[120]  However it need not be exclusively so.  Where an evidential foundation is established which would allow such an inference to be drawn from the prosecution case, then the burden will still remain on the prosecution to exclude such an inference.[121]

   [120] Higgins v The State of Western Australia [2016] WASCA 142 [28].

   [121] BSJ v The State of Western Australia [2023] WASCA 5.

3. For an inference to be reasonable, it must rest on something more than mere conjecture.[122]

   [122] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 3088 [47].

4. In order to be satisfied Mr Pym held such a belief at the time of doing the harmful act, I would have to consider the inference that the beliefs Mr Pym expressed in any of the mixed statements the subject of Exhibits 7.1, 7.2, 8.2 and 9 existed at the time of doing the harmful act.  This would be the only basis on which I could conclude Mr Pym held a belief, albeit an erroneous one, that Mr Risi had performed a harmful act against him from which Mr Pym had to defend himself.

5. For the reasons I have outlined above at [77], a period of at least 37 minutes had passed between when Mr Pym performed the harmful act against Mr Risi, and him describing to Officer Singh what he believed at that point in time as to what he may have believed when he did the harmful act.  It does not follow that simply because Mr Pym believed it at that point in time of telling Officer Singh, it must have been what Mr Pym believed at the time of striking Mr Risi.

6. As I have noted at [171] it is evident at the time of speaking to Officer Singh that Mr Pym was in a delusional state.  It is also evident from the change in his demeanour and behaviour when Mr Pym was speaking to Detective Searles approximately four hours later in Exhibit 9, that his state was progressing and getting worse.  This suggests any psychosis Mr Pym may have been experiencing had continued to progress and was increasing in severity over time.

7. The only evidence suggesting Mr Pym was experiencing any form of delusion or potential mental illness at the time of doing the harmful act is the evidence from Ms Moore that I have outlined at [63] and [64] that he appeared 'dazed' and 'confused'.  'Dazed' and 'confused' is quite different to how Mr Pym is seen behaving in Exhibits 7.2 and 8.2 and then eventually Exhibit 9.

8. In Exhibits 7.2 and 8.2 Mr Pym was vocalising his delusions to the officers and explaining how he believed he acted in response to them.  He was capable of vocalising and talking about his delusions as he believed them to be at the time of the assault.

9. If at the time of assaulting Mr Risi, Mr Pym was acting under the delusional belief he had been stabbed in the neck with a syringe and acting under the fear of being raped, there may be some expectation these beliefs would have manifested, such as Mr Pym vocalising his fears in some way.  Ms Moore's evidence (referred above at [62(e)]) was Mr Pym was saying nothing when attacking Mr Risi.

10. Ms Veltman submitted it may be Mr Pym did not, at the time of the assault, vocalise such fears because it was not until he was in police custody he felt sufficiently safe to then raise them.  This sits inconsistently with the fact that Mr Pym initially ran from police (as captured in Exhibit 8.1) and certainly did not appear to be friendly towards police in Exhibit 9 when he continued to repeat his delusional beliefs in a much more aggressive and abusive manner.

11. But this submission highlights the difficulty with what is being sought to be made from this evidence; it is based entirely on conjecture.  Whilst I am conscious it is not upon Mr Pym to prove or establish an inference and it is upon the prosecution to negative it if it reasonably arises, it will not reasonably arise if based on conjecture.

12. I have no evidence as to:

    (a)whether Ms Moore's description of Mr Pym as 'dazed and confused' is in fact indicative or consistent with Mr Pym being in a delusional state at that time, whether it is suggestive of him being at the beginning stages of a delusional or psychotic state, or whether he was 'dazed' and 'confused' for other reasons (such as the fact he was recovering from the physical exertions of an attack upon Mr Risi);

    (b)if it does indicate the onset or presence of psychosis at the relevant time, what specific type of psychosis it may have been and how it may have affected Mr Pym; 

    (c)whether visible signs of psychosis or delusions would have been expected in Mr Pym's behaviour at the time or the absence of any external manifestation of these beliefs is entirely consistent with whatever psychosis Mr Pym may have been experiencing;

    (d)how any psychotic episode might have progressed over time and whether that could explain differences in Mr Pym's experiences at 10.57 pm versus the relevant time;

    (e)whether the delusions or beliefs Mr Pym was expressing at 10.57 pm would have necessarily been the same as any beliefs or delusions he was experiencing at least 30 minutes earlier when assaulting Mr Risi; and

    (f)If Mr Pym was in a deluded or psychotic state at 10.57 pm when speaking to officers, whether this would have affected the reliability of the description he gave of what his state of mind may have been at the time of assaulting Mr Risi and, if it did affect the reliability, how. 

1. In the absence of any psychiatric evidence, the most I can conclude is that Ms Moore's evidence that Mr Pym appeared 'dazed' and 'confused' might suggest he was experiencing the onset of some form of psychosis.  But the current evidence does not inform me of what the extent and effect of that psychosis might have been, or that he was acting in accordance with delusional beliefs.

2. All that Exhibits 7.2 and 8.2 can satisfy me is that at 10.57 pm Mr Pym delusionally believed he had been stabbed in the neck by Mr Risi which had caused him to defend himself.  Where there is evidence to show his psychosis was progressively getting worse, to conclude from the fact he held those beliefs at 10.57 pm does not mean I can conclude he held that same belief at the time of the assault.  This is, in my view, not inferential reasoning but conjecture.

3. Due to the unreliability of the other statements Mr Pym has made during the interview, I do not consider Mr Pym's statement at 10.57 pm (or when repeated at 2.38 am during a more advanced state) he had been stabbed in the neck and was acting in defence, to be a reliable statement of what his belief was at the relevant time.  As noted, there is nothing from the way Mr Pym was observed to be behaving at the time of the assault that would be, in my view, corroborative and to render his account reliable.

4. In the absence of corroborative evidence suggesting he was acting under those delusional beliefs at the time of the assault, I do not accept that evidence.

5. I am satisfied Mr Pym's harmful act was not done in the belief it was necessary to defend himself from a harmful act because to conclude he held that belief at the time would, in my view, be grounded on conjecture.

Reasonableness

1. If I am wrong in that conclusion, s 248(4)(c) provides Mr Pym's harmful act will only be lawful if he has (objectively) reasonable grounds for the (subjective) beliefs he holds.[123]

   [123] Goodwyn v The State of Western Australia [2013] WASCA 141 [95].

2. The prosecution will negative self‑defence if it proves beyond reasonable doubt there were no reasonable grounds for Mr Pym to subjectively believe his harmful act was necessary to defend himself from Mr Risi's unlawful harmful act.

3. The reasonableness of those beliefs and the reasonableness of his response are objective matters to be judged by the standard of a reasonable person with the same age, background and level of intellectual function as Mr Pym, who is familiar with all the circumstances that were known to Mr Pym at the relevant time.[124]

   [124] Raux v The State of Western Australia [2012] WASCA 1 [143].

4. The assessment of whether there are reasonable grounds for a belief will take into account the information available to the person who holds the belief.  However, the making of an assessment of the reasonable grounds for a belief does not take into account the personal characteristics of an accused such as immaturity, intoxication or mental infirmity.  The consideration of such personal characteristics would effectively remove any requirement of objectivity from that assessment.[125]

   [125] Egitmen v The State of Western Australia [2016] WASCA 214 [329] (Egitmen).

5. Any (mistaken) belief Mr Pym (may have) held at the relevant time arose from a mental infirmity or lack of mental capacity he was experiencing.  As stated in Egitmen v The State of Western Australia,[126] these personal characteristics are not taken into consideration when assessing whether the accused had reasonable grounds for their beliefs.

   [126] Egitmen [331].

6. On this basis, even if Mr Pym held the belief it was necessary to do the harmful act in order to defend himself against a harmful act by Mr Risi, I am of the view there were no reasonable grounds for that belief given those beliefs arose from his subjective psychosis and mental infirmity.

7. If Mr Pym did hold a subjective belief at the relevant time it was necessary for him to do the harmful act to defend against a harmful act by Mr Risi, I am satisfied beyond reasonable doubt Mr Pym did not hold that belief on reasonable grounds.  This would mean the prosecution has negatived the operation of s 248.

8. There being no other basis which would render Mr Pym's conduct lawful, I am satisfied the prosecution has proven beyond reasonable doubt his conduct was unlawful.  This element has been established.

Intent to maim, disfigure, disable or to do grievous bodily harm

1. The State must prove Mr Pym held an intention to either maim, disfigure, disable or to do grievous bodily harm to Mr Risi at the time of doing the act which caused the grievous bodily harm to Mr Risi.

2. As noted above at [160], the concept of intention is different to the question of whether the act performed by Mr Pym was willed; the question of intention relates to the desire to achieve an outcome from the act performed.  A person intends a result if he means to bring it about.

3. Whereas there is a presumption (as discussed in Falconer and referred to above at [161]) that an act is willed, no such presumption exists with respect to the question of intent.

4. The State's indictment pleads all four relevant intentions in the alternative to each other.  This does not create duplicity.[127] The State will satisfy this element if it proves Mr Pym held one of those four intentions.  Those intentions have been defined as follows:

   (a)In R v Brown[128] Lord Templeman examined the history of the meaning of the word 'maim' concluding 'a maim was bodily harm whereby a man was deprived of the use of any member of his body which he needed to use in order to fight'.  The more standard dictionary definition is 'to deprive of the use of some member, to mutilate, to cripple'.

   (b)'Disfigure' is to 'mar the figure or appearance of, to deform, to deface'.  Accordingly a disfigurement will be an injury to a person that detracts from the person's personal appearance.

   (c)'Disable' is to render unable or incapable, to deprive of ability, physical or mental, to incapacitate.  To disable someone is to injure that person in a way that creates a permanent disability and note merely a temporary injury.

   (d)Grievous bodily harm is of course a defined term, the definition of which is set out above at [118].

   [127] See sch 1 cl 5(2)(b) of the CPA.

   [128] R v Brown [1994] 1 AC 212, 231.

5. In closing, the State's submission focused on the intention to do grievous bodily harm.  It appears there was an acceptance by the State that there was no evidence which would lead me to conclude Mr Pym held one of the other intentions at the relevant time.[129]

   [129] ts 286.

6. The defence position was Mr Pym 'had no ability to form intent at the time of this incident.  He had no intent to do anything other than defend himself with the actions that he took at the time'.[130]  At the time of making this submission I noted they were two mutually incompatible things; to hold an intention to defend necessarily is indicative of a capacity to form an intent.  The question of an inability to form an intent is different to the question of whether he held the relevant intent at the relevant time.

   [130] ts 303.

7. Despite acknowledging the distinction, it still appeared the defence position was Mr Pym had no capacity to form an intent because of the delusional or psychotic state he is said to have been in.

8. There is no evidence that would allow me to draw the conclusion that Mr Pym was rendered incapable of forming an intent due to any psychosis or delusional state he may have been operating under at the relevant time.

9. Again, I reiterate, there is no evidentiary onus on Mr Pym but before I can draw an inference that is more than mere conjecture, there must be an evidentiary foundation upon which to draw that inference.  The only evidentiary foundation upon which it appears this inference can be drawn from is a finding Mr Pym was either delusional or psychotic at the relevant time.  I have already outlined at [180] ‑ [191] why there are difficulties in drawing that inference.

10. But this inference regarding incapacity to formulate intent goes further.  Even if I was able to be satisfied Mr Pym was psychotic or delusional at the relevant time, as I have raised, I have no evidence as to what that might mean for Mr Pym, what consequences that would have upon his state of mind and how it may, or may not, affect his capacity, or incapacity, to form intent.

11. To conclude Mr Pym was, at the relevant time, in a psychotic state and therefore was deprived of the capacity to form an intent is pure conjecture.

12. As noted by Hall J (as he then was) in The State of Western Australia v Quartermaine[131] it cannot be the case, as a general statement, that an intent formed on delusional beliefs is not an intention.  It must depend on the nature of the delusions and how that has affected the person's mind.  A person acting under an irrational and delusional belief may still be capable of desiring to bring about an outcome and be capable of forming an intent.

    [131] The State of Western Australia v Quartermaine [2020] WASC 458 [191] - [193].

13. His Honour's reasoning in this matter is compelling, and I see no reason why I should depart from it.  In my view it illustrates why the inference that Mr Pym was incapable of forming an intent because he was in a delusional or psychotic state is conjecture.

14. The question now remains 'is the only reasonable inference I can draw from the collection of facts as I have found them to be, that Mr Pym held the intent to cause an injury that was likely to result in a permanent injury to health in the absence of medical treatment'.

15. The State submits I can draw that inference from the collection of following facts:

    (a)'The ferocity of the attack and the number of blows inflicted'.[132]

    [132] ts 286.

    I have already outlined the findings I have made in relation to this issue at [60] ‑ [62] and [152].  I am satisfied Mr Pym repeatedly struck Mr Risi at least seven times whilst holding onto the implement which had caused the penetrating wound to Mr Risi's eye, and then multiple times with his fist whilst Mr Risi was prone in the hallway/lounge area of the house.

    Additionally, Ms Moore's evidence (which I have accepted) was Mr Pym held Mr Risi in place, at least for a time, to stop him from getting away whilst Mr Pym continued to attack him.  He continued to attack Mr Risi whilst he was on the ground and vulnerable.  He continued to repeatedly punch Mr Risi to the head area.  Even in the absence of a weapon, repetitive punching to the head can cause serious harm.  Mr Pym continued to do so until Ms Moore was able to drive Mr Pym away through repetitive blows to Mr Pym's back.  Even then, Mr Pym made attempts to return to Mr Risi to continue his assault against him.  The intensity of Mr Pym's assault against Mr Risi does, in my view, provide insight as to the level of harm Mr Pym wanted to cause to Mr Risi.

    (b)'The placement of [Mr Pym's] strikes suggesting he was deliberately targeting vulnerable and dangerous areas of [Mr Risi's] body, such as his head, neck and upper back'.[133]

    [133] ts 287.

    I agree that it is significant that all areas where injury is seen are in Mr Risi's vulnerable areas.

    The wounds ‑ described as 'stab wounds' ‑ were to the temple and top of Mr Risi's head.  Whilst superficial, they held the potential for significant injury.  The fact Mr Risi did not sustain further serious injury appears to be as a consequence of the protection offered by his skull rather than because Mr Pym was not trying to inflict serious injury.

    The two stab wounds to Mr Risi's back suggest Mr Pym tried to stab Mr Risi in the back as Mr Risi was trying to move away from Mr Pym.  The back is an inherently vulnerable part of the body.

    The stab wound to Mr Risi's eye was also inherently serious and potentially fatal.  The fact further stab wounds were to this area (top of head, temple, neck and throat area), in quick succession are all suggestive of the fact Mr Pym was targeting Mr Risi's head with a sharp implement that he was using as a weapon.

    This fact alone, in my view, is capable of suggesting Mr Pym wanted to cause serious harm to Mr Risi.

    (c)'The use of a weapon, namely the screwdriver'.[134]

    [134] ts 287.

    Whilst I have not made a specific finding the implement used was a screwdriver, that appears to be what Mr Pym at least believed he used.  A screwdriver is consistent with having caused the injury to Mr Risi's eye.  Whatever the implement may have been, it was of sufficient length and sharpness to cause the penetrating wound to Mr Risi's eye and brain.  Clearly the implement used was inherently capable of inflicting serious injury if used offensively.  I am satisfied Mr Pym would have been aware of that fact when picking it up and using it.

    But the fact Mr Pym chose to arm himself is also a fact that should not be overlooked.  Consistent with the finding I have made at [151], Mr Pym made an intentional decision to collect the implement.  He then immediately plunged it into Mr Risi's face when Mr Risi opened the door.  The plunging of an implement of this nature into Mr Risi's face is also indicative to me of Mr Pym's intent to cause serious harm.

    (d)'The serious injuries sustained'.[135]

    As I understand this submission, this is a reference to Dr Dutt's evidence that the level of force required to penetrate the orbit and into the brain would be a 'good amount of force'.[136]  He based this opinion on the fact 'the orbit is a pretty secure space so you would have to penetrate through strong connective tissue and skin and muscle'.[137]

    Regrettably, Dr Dutt was not asked to clarify or elaborate upon what 'a good amount of force' might mean or what factors might influence the level of force required.

    For example, presumably the sharpness and the nature of the implement being used to cause the penetration may have some influence on the degree of force being used, as might the speed at which the implement is travelling when making impact with the orbit.  The size of the penetrating surface of the implement may also have some bearing in the level of force needed, as presumably a greater level of force will be required if it is displaced over a larger penetrating surface, than the level of force needed if concentrated into a fine point.

    The depth of the wound might also give some insight as to the level of force.  Dr Dutt appears to have acknowledged this when he said 'I apologise, I didn't actually look at the CT images so I can't speak to how far it has entered the orbit'.[138]

    If this is what is meant by the State's submission that 'the serious injuries sustained' may assist in drawing the inference as to intent, then I am not of the view I can do so from the evidence Dr Dutt gave.

    (e)'[Mr Pym's] subsequent admission to wanting to kill [Mr Risi]' which is captured in Exhibit 9.

    This is a reference to Mr Pym's statements '[be]cause if that dog's still alive after what I did to him, I'm gonna kill him again' and 'I'll kill him.  I'll make him piss again'.

    [135] ts 287.

    [136] ts 262.

    [137] ts 262.

    [138] ts 261.

16. To be used as an admission in the way the State's submit I can, I would have to be satisfied:

    (a)Mr Pym's statement he wanted to 'kill' Mr Risi was a statement of an intention to cause, at the very least, serious harm to Mr Risi as opposed to words angrily spoken which were indicative of an intent to simply harm Mr Risi.

    (b)That when he said these words at 2.38 am they were reflective of the intent he held at the time of assaulting Mr Risi.  As I have discussed, given the apparent progressing nature of Mr Pym's psychosis or delusions, there are difficulties in drawing such an inference.  It is just as equally possible Mr Pym was speaking of  an intention he had formed subsequent to assaulting Mr Risi.

17. As I have noted, the responses made by Mr Pym captured in Exhibit 9 were made approximately a minimum of four hours after he had assaulted Mr Risi, and he was in a heightened state of agitation.

18. In my view, Mr Pym's statement he was 'going to kill him again' (and words to similar effect) is, at best, reflective of an intent held by Mr Pym to cause harm to Mr Risi at the time of making the statement and does not assist in drawing any inference as to what Mr Pym's intention might have been at the relevant time.

19. The majority of facts the State rely upon in support of the inference are facts which occurred after Mr Pym had already inflicted the blow which caused the grievous bodily harm.  I must be satisfied he held the intent when he inflicted the blow, rather than after.  Nevertheless, Mr Pym's subsequent conduct can of course be facts from which one can infer what intent he may have held at the relevant time. 

20. I am satisfied of the following:

    (a)the act of picking up an implement which could inherently cause serious harm to Mr Risi, prior to then assaulting him with it, is indicative of an intent to cause harm to Mr Risi;

    (b)the fact Mr Pym immediately plunged the implement into Mr Risi's face is not only consistent with that intention, it is suggestive to me that Mr Pym held an intent to cause serious harm to Mr Risi; and

    (c)Mr Pym then continuing to assault Mr Risi with that implement to highly vulnerable areas of his body, and then repeatedly punching Mr Risi to his head area, confirms the targeting of Mr Risi's face with the implement was intentional.

21. I am satisfied beyond reasonable doubt that at the time of plunging the implement into Mr Risi's orbital socket, Mr Pym held the intention to cause grievous bodily harm to Mr Risi.

22. This element has been made out.

Conclusion

1. I am satisfied the prosecution has established beyond reasonable doubt each of the five elements of this offence.

2. Pursuant to s 41(2)(c) of the CLMI Act I find Mr Pym to have committed the offence charged, namely the offence of doing grievous bodily harm with intent to do grievous bodily harm, contrary to s 294 of the Code.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

DC

Associate

21 MARCH 2025