The State of Western Australia v Quartermaine
[2020] WASC 458
•11 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- QUARTERMAINE [2020] WASC 458
CORAM: HALL J
HEARD: 23 NOVEMBER - 1 DECEMBER 2020
DELIVERED : 11 DECEMBER 2020
FILE NO/S: INS 2 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
GREGORY JOHN WILLIAM QUARTERMAINE
Accused
Catchwords:
Criminal law – Trial by judge alone – Murder – Intent to kill – Intoxication – Drug-induced psychosis – Whether delusions caused by intoxication deprived the accused of the capacity to form an intent to kill – Whether the accused in fact had such an intent at the relevant time – Admissibility of psychiatric evidence where information provided by the accused is not confirmed on oath
Legislation:
Criminal Code (WA), s 27, s 28
Result:
Guilty of murder
Category: A
Representation:
Counsel:
| Prosecution | : | Mr D L S Davidson |
| Accused | : | Mr B G Illari |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Sonia Anderson |
Cases referred to in decision:
Dodd v R [1978] WAR 209
DPP v Majewski [1977] AC 443
Kusu v R [1980] 4 A Crim R 72
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
R v Barry (1984) 1 Qd R 74
R v Schafferius [1977] Qd R 213
Ramsay v Watson (1961) 108 CLR 642
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Knock [2020] WASC 246
Viro v The Queen (1978) 141 CLR 88
Zwerus v The State of Western Australia [2015] WASCA 174
HALL J:
The accused, Gregory Quartermaine, is charged that on or about 4 August 2019 at Tambellup he murdered Wilfred Williams. He has pleaded not guilty to that charge. An application for trial by judge alone was granted on 23 April 2020. The trial was held in Albany and commenced on 23 November 2020 and concluded on 1 December 2020.
At the commencement of the trial the accused made the following admission under s 32 of the Evidence Act 1906 (WA):
That on or about the 4th August 2019 at Tambellup the Accused unlawfully caused the death of Wilfred Williams by inflicting on him multiple sharp force injuries, such injuries being described in the 'Confidential Report to the Coroner' of Dr J White dated 9 March 2020.
By this admission the accused accepts that he was responsible for unlawfully killing Mr Williams. The only issue is whether at the time of the killing he had the specific intent required for murder, that is, the intent to kill or do an injury that was likely to endanger life. In order to prove the charge of murder the State bears the onus of proving that the accused had such an intent. If that intent is not proven the accused would only be guilty of the lesser offence of unlawful killing (or manslaughter).
The defence case is that the accused was intoxicated by drugs at the relevant time and that the effect of those drugs was to impair his ability to form an intent. It is accepted that the drugs were taken voluntarily. The defence position is that, having regard to all the circumstances, including the intoxicated state of the accused, the State has not proven beyond reasonable doubt that the accused had the necessary intent for murder. It is accepted that if the prosecution has failed to establish the necessary specific intent for murder the accused would be guilty of the lesser offence of manslaughter.
The State's case is that the accused intended to kill Mr Williams and that this is established by his actions and statements immediately preceding the killing and by the nature of the injuries inflicted. The State accepts that the accused was intoxicated by drugs at the relevant time, but says that the degree and nature of the intoxication did not deprive the accused of the ability to form an intent to kill. The prosecution position is that, having regard to all of the circumstances, including the intoxicated state of the accused, it has been proven beyond reasonable doubt that the accused had the necessary intent for murder.
For the reasons that follow I have come to the following conclusions:
1.The accused was intoxicated with methylamphetamine and cannabis at the time of the killing.
2.The accused intentionally caused himself to become intoxicated as a result of voluntary use of those drugs.
3.The effect of the intoxication was to make the accused more aggressive and less able to control his behaviour.
4.Another effect of the intoxication was to produce delusional beliefs in the accused, in particular a belief that he was being commanded to kill Mr Williams.
5.Notwithstanding the intoxication and the delusional beliefs it caused, the accused remained aware of what he was doing and remained capable of forming an intent to kill.
6.The accused attacked the deceased with a machete and a knife inflicting numerous serious injuries that caused the death of Mr Williams.
7.When the accused inflicted the injuries to Mr Williams he intended to kill him.
8.That intent has been proven beyond reasonable doubt and the accused must, therefore, be found guilty of murder.
Relevant legal principles
Section 119 of the Criminal Procedure Act 2004 (WA) requires 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.
There must be a judgment in a trial by judge alone that meets the criteria set out in s 120(2) of the Criminal Procedure Act. The judgment must therefore include the principles of the law that the judge has applied and the findings of fact on which the judge has relied. It is not enough, however, to merely state the principles and the factual conclusions, the judgment must reveal a process of reasoning which makes clear how the conclusions have been reached.
In the present case the following legal principles are relevant and I have applied them in my reasoning.
General principles
In every criminal trial the starting point is that the accused person is presumed to be innocent. 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. The presumption applies to the accused in this case, as it does to every person charged with criminal offences in this jurisdiction. In this case the accused has admitted the facts relevant to proving unlawful killing. However he has denied the charge of murder. Accordingly he is presumed to be innocent of the offence of murder unless and until such an offence is proven.
The onus of proof, that is the responsibility of proving the charges, lies upon the State, that is, the prosecution. It is the State that has brought the charges and the State that must prove them. That is the case in every criminal trial. An accused person does not have to prove his or her innocence; indeed he or she does not have to prove anything. The onus is on the State from the start to the finish. It never shifts to the accused. In the circumstances of this case that means the onus is on the State to prove that the accused had the specific intent required for murder at the time he killed the deceased.
The standard of proof that the prosecution must meet in order to prove that the accused is guilty of any of the charges against him is beyond reasonable doubt. It is sufficient for me to say that this is the highest standard known to the law. That standard applies in every criminal case. It is a high standard but it is not an impossible standard. That is the standard that must be applied in determining whether the accused is guilty or not guilty of the charge of murder. Before I can find the accused guilty of the charge I would have to be satisfied beyond reasonable doubt that he was guilty of that charge. If I am satisfied to that standard then the verdict must be one of guilty; if I am not satisfied to that standard then the verdict must be one of not guilty.
The standard of proof of beyond reasonable doubt applies to the elements or essential components of the charge. It is only if all the elements are proven beyond reasonable doubt that the accused can be found guilty of the charge. I will set out the elements of the charge shortly, however it is sufficient to note that only one element of murder is in dispute in this case. That is the element of specific intent. The question is whether it has been proven beyond reasonable doubt that the accused had that intent at the time of the killing. If that element is proven beyond reasonable doubt then the accused is guilty of murder. If that element is not proven beyond reasonable doubt then the accused is not guilty of murder. He would, however, be guilty of the lesser offence of manslaughter.
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 the accused 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. At the trial he chose not to give evidence. As such he exercised his right to remain silent. It would be wrong to draw any adverse conclusion from the exercise of that right. It would be a right of no value if when a person chose to exercise it an adverse inference was drawn. 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; and it cannot be used as a makeweight in assessing whether the prosecution has proven its case beyond reasonable doubt. To the extent that the word makeweight is not commonly used its meaning in this context is clear – the fact that the accused did not give evidence does not strengthen the prosecution case or supply additional proof against him. I have not taken into account the fact that the accused did not give evidence at the trial when assessing whether his guilt has been proven to the required standard.
Some witnesses were declared special witnesses because they had some particular vulnerability or sensitivity that would have made it difficult for them to give evidence in open court. I recognise that this is an ordinary procedure of the court and that no adverse inference against the accused should be drawn from the fact that such arrangements were made. I note that these arrangements did not detract from my ability to make an assessment of the credibility of those witnesses. The witnesses who were declared special witnesses were as follows: Deborah Williams and Joy Williams.
I am conscious that what I am required to do is approach the evidence in a rational and impartial way. Any possible sympathies or prejudices must be put aside. My task is to consider what logical conclusions can be drawn from the evidence as a whole. A fair trial requires such an approach.
In this case the prosecution relies on circumstantial evidence to establish the intent of the accused at the time. Circumstantial evidence is evidence of the surrounding circumstances relating to an event or occurrence. It can be contrasted with direct evidence; that is evidence of that event or occurrence as observed by a witness or recorded by some device. Where the fact in issue is a state of mind, as here, it is not uncommon for circumstantial evidence to be relied upon in order to prove that state of mind.
Circumstantial evidence is not necessarily any less reliable than direct evidence. Indeed, it may be more reliable in some instances because direct evidence can be the product of subjective interpretation and the fallibility of human perceptions and memory, whereas evidence of surrounding factual circumstances may be clear, objective and uncontested. This is not to say that some circumstantial evidence may not suffer from the same issues. It is important therefore to assess the weight of any evidence without any assumptions based on the category into which it falls. However there are some important considerations that arise in respect of circumstantial evidence and the inferences that can be drawn from it.
Inferential reasoning is not speculation. Inferential reasoning is the drawing of a logical deduction from the proven facts. Inferential reasoning is not in any way a lesser form of coming to a conclusion than seeing something directly but there are special rules that relate to it. When drawing inferences it is important that the evidence should not be looked at in a piecemeal way to see what conclusions can be drawn from each part of the evidence when viewed in isolation. Rather the whole of the evidence should be considered together to see what inferences can be drawn. A question or doubt that may arise where one piece of evidence is looked at in isolation may be resolved when the whole of the evidence is considered. A circumstance should not be rejected because, considered alone, no inference of guilt can be drawn from it. Further a number of pieces of evidence that would not lead to an inference of guilt beyond reasonable doubt when taken separately may establish guilt to that standard when taken together. Circumstantial evidence can cumulatively eliminate other possibilities. On the other hand in some cases deficiencies in individual aspects of the evidence will not be resolved by other aspects of the evidence and those deficiencies may be sufficient to create a reasonable doubt, either alone or when considered cumulatively.
An inference of guilt, that is an inference adverse to the accused, cannot be drawn unless it is the only inference that is reasonably open on the evidence. If there is an innocent explanation that is open then an inference of guilt cannot be drawn. In practical terms this means that the prosecution must exclude any possible reasonable inference consistent with innocence. If the evidence taken as a whole leaves open any reasonable hypothesis consistent with innocence it is my duty to acquit the accused. This is an aspect of the requirement that guilt in a criminal case be proven beyond reasonable doubt, because if the evidence allows for the reasonable possibility that the accused is innocent then guilt beyond reasonable doubt has not been established.
For an inference to be reasonable it must rest upon something more than mere conjecture; the possibility of innocence does not prevent a finding of guilt if the inference of guilt is the only inference reasonably open upon consideration of all the facts proven by the evidence. When a case against an accused person rests substantially upon circumstantial evidence a verdict of guilty will not be open unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. To be satisfied beyond reasonable doubt of the guilt of the accused it is necessary that his guilt should not merely be a rational inference but that it should be the only rational inference that the circumstances allow to be drawn.
Elements of murder
The charge against the accused is one of murder contrary to s 279(1) of the Criminal Code (WA). The elements of the offence of murder are as follows:
1.That the accused did the relevant act (the identity question).
2.That the act done was that the accused killed the deceased (that is caused the death of the deceased).
3.That the killing was unlawful.
4.That at the time of the killing the accused intended to cause the death of the person killed or another person or intended to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person.
In this case the first three elements are not in dispute. The accused accepts that he inflicted injuries to the deceased that caused the deceased's death and that the killing was not authorised, justified or excused by law. The only element that is in issue is the fourth element of specific intent.
The intention to cause death or to do a life endangering injury must have been held by the accused at the time of the doing of the act or acts that caused the death. Such an intention does not have to be held for a long time; it may be held only momentarily. Premeditation or a plan to kill is not required, though if such a plan was made it would be relevant in considering whether an intent to kill existed at the relevant time. An intention to kill is a state of mind and, as such, will usually be proven by inference from the circumstantial evidence. The question is whether the evidence establishes that the only reasonable inference is that the accused intended to kill the deceased at the time he did the act or acts that caused the death of the deceased.
Intoxication
In this case the issue of intoxication is raised. Intoxication is not generally a defence to a charge, that is, a person is not necessarily excused or relieved of liability simply because they are intoxicated.
Intoxication may be intentionally caused by a person or be caused without intention. Where the use of drugs has been voluntary, as here, intoxication is usually intentionally caused. In these circumstances intoxication does not relieve the person of criminal responsibility for their actions, but it is relevant to the question of whether a specific intent was held. A specific intent is an intent to cause a particular result. The fourth element of murder is a specific intent.
The relevant section of the Criminal Code is s 28, but that section must be read together with s 27. Sections 27 and 28 provide as follows:
27.Insanity
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(2)A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
28.Intoxication
(1)Section 27 applies to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means.
(2)Section 27 does not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not.
(3)When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.
In The State of Western Australia v Herbert,[1] Jenkins J considered the meaning of 'intoxication' for the purposes of s 28(1) and s 28(2). Her Honour concluded that a person's 'mind is disordered by intoxication' within the meaning of s 28(1) if their mind is disordered by the overpowering action or effect of a drug or alcohol. Similarly, a person 'becomes intoxicated' within the meaning of s 28(2) if their mind becomes subject to the overpowering action or effect of a drug or alcohol. In this case it was not in issue that the accused was intoxicated at the relevant time and had intentionally caused himself to become intoxicated. Nor was there any suggestion of any mental illness independent of the effects of intoxication.[2]
[1] The State of Western Australia v Herbert [2017] WASC 101.
[2] Thus none of the issues dealt with in cases like Herbert and The State of Western Australia v Knock [2020] WASC 246 arose here.
The fact that an accused person was intoxicated at the time of the conduct does not necessarily mean that the person did not have a specific intent. Intoxication is relevant because it may affect the ability of a person to think clearly or appreciate the consequences of their actions. However, the fact that a person may do things whilst intoxicated that they would not do when sober does not necessarily mean that they do not do them with a specific intent or purpose. Whether the accused had an intent to kill is a question of fact to be determined by taking into account all of the evidence, including the evidence as to intoxication.
The appropriate direction in a jury trial was referred to by Gibbs J in Viro v The Queen:[3]
In a case where there is evidence fit to be considered by a jury that the accused was intoxicated as a result of the consumption of drink or drugs, it is not enough to tell the jury that the Crown must prove beyond reasonable doubt that the accused had in fact formed the requisite special intent. They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or by a combination of both, may be regarded for the purpose of ascertaining whether the special intent in fact existed. It should be explained that evidence that the accused was intoxicated will not in itself entitle him to an acquittal, because a person when intoxicated may form the necessary intent, and one who has formed the intent does not escape responsibility because his intoxication has diminished his power to resist the temptation to carry it out. However, the jury should be told that if, because of the evidence as to the effect of the intoxication or otherwise, they are not satisfied that the accused did in fact have the necessary intent, they must acquit of the crime which involves that intent.
[3] Viro v The Queen (1978) 141 CLR 88, 112.
The question to be asked is whether it has been proven beyond reasonable doubt that the accused had the intent to kill at the relevant time. It is not enough to prove that he was capable of forming such an intent. However, if the evidence establishes that he was incapable of forming such an intent then, clearly, it would be impossible for the element of specific intent to be proven. The extent to which intoxication may have affected the ability of the accused to form an intent is, therefore, relevant, but proof that the accused had such an ability does not alone prove that he had the necessary intent.[4]
[4] See Dodd v R [1978] WAR 209, per Burt CJ, 211.
Intoxication may vary as to its nature and degree. Different substances can produce different effects. Substances can also affect different people in different ways. What is relevant is the nature and degree of intoxication experienced by the accused at the time. Taking into account the effects of that intoxication, has it been proven beyond reasonable doubt that the accused intended to kill the deceased?
Expert opinion evidence was called in this case from experts regarding the effects of methylamphetamine and cannabis and the likelihood that the accused was experiencing psychotic delusions at the time of the killing. Expert evidence is opinion evidence based upon experience and learning. I am conscious that whilst expert opinion is relevant it is not determinative of any questions that I must answer. As the trier of fact it is a matter for me whether I accept or reject the expert evidence, however I should not reject expert evidence that is unchallenged.
Intoxication may also be relevant in a more general way. It may be relevant to the state of memory or the conduct of the accused.[5] In drawing inferences from the words and actions of an intoxicated person it is important to take into account that intoxicated people may not act with same degree of care for what they say or thought about their actions as a sober person.
[5] Kusu v R [1980] 4 A Crim R 72, 77.
Prosecution case
The prosecution case is that the deceased, Wilfred Williams, was a lifelong friend of the Quartermaine family. He was known to members of the family as Uncle Willy or Pop Willy. The deceased had been living with Debra Quartermaine, who is the mother of the accused, for many years. They had lived together along with the accused's now deceased father, when the accused was a child growing up. The deceased was a loved and welcome member of the family. The relationship between the accused and the deceased seemed to be on the whole a positive one. There were occasions when the deceased was drinking too much and the accused would take alcohol off him and this might result in a verbal altercation. However, there were no prior instances of violence between them.[6]
[6] ts 24 ‑ 25.
The accused was a drug user, in particular cannabis and methylamphetamine, and had been for a number of years prior to 3 August 2019. As at that date the accused was living in Tambellup, where he grew up. He was in a long‑term relationship with Carmen Farmer and they had a son together. They lived at 25 Crawford Street Tambellup, two houses away from the accused's mother's house at 61 Garrity Street Tambellup, where the deceased lived.[7]
[7] ts 25.
In the days immediately before the incident which resulted in the death of the deceased a number of other members of the family came to stay at Debra Quartermaine's house. As at 3 August 2019, in addition to Debra Quartermaine and the deceased, the others staying at the house were Millicent Williams, Kevin Taylor, Deborah Williams, Janice Taylor, Juliearna Williams, Joy Williams and Wade Taylor. Millicent is the daughter of Debra Quartermaine and the others are grandchildren. Deborah Williams was a teenager at the time and had a bedroom adjacent to that of the deceased.[8]
[8] ts 25 ‑ 26.
In the days leading up to 3 August 2019 the accused used methylamphetamine over a period of about 10 days in the company of Brendan Ugle. On 3 August 2019 Brendan Ugle telephoned the accused and they arranged to catch up. Mr Ugle went to see the accused at around 5.00 pm and they went in Mr Ugle's car to Katanning to purchase some drugs. Mr Ugle obtained the drugs and they then drove back towards Tambellup, stopping at Broomehill where they each injected about a point of methylamphetamine. Mr Ugle then dropped the accused at his home and they discussed meeting later. Later that evening the accused, Mr Ugle and another man, Gregory Pickett, drove together to Noongar Park, a short distance out of Tambellup. At that location the accused and Mr Pickett injected more methylamphetamine. They all then returned to the accused's house. The accused, Mr Pickett and Carmen Farmer smoked some cannabis at that time.[9]
[9] ts 26 ‑ 27.
Sometime later there was a discussion about the accused going to his mother's house. He left the room and came back with a bible and there seemed to be a change in his behaviour. He began to quote from the bible and act in a way that Mr Ugle had not seen him act before. The accused and Mr Ugle then got into Mr Ugle's car and drove the very short distance to the accused's mother's house. The accused began saying things to the effect that Mr Ugle possessed black magic. The accused got out of the car and was yelling to his family not to come outside. Mr Ugle decided to leave and reversed away from the accused. He saw the accused run back towards his house.[10]
[10] ts 27 ‑ 28.
At some time that evening the accused went to Lillian Penny's house. He refers to Ms Penny as Aunty May and she lives in the same area of Tambellup. On arriving at Ms Penny's house the accused began calling out to her to help him. He asked her to pray for him. He was holding a bible to his chest and appeared to be agitated. Ms Penny did pray with the accused and he then asked her for a larger bible which she provided. He then walked away towards his mother and some other members of his family who were standing watching him on the other side of the road.[11]
[11] ts 28 ‑ 29.
The accused returned to his home and began talking about the devil. He then got up and grabbed a machete, walked out of the house and in the direction of his mother's house.[12]
[12] ts 29.
At around midnight on 3 August moving into the early hours of 4 August 2019 the accused approached his mother's house and asked to be let in. The door was opened by Deborah Williams and the accused walked into the house with the machete and asked where the deceased was. He was told that the deceased was asleep in his room. He began to call out for the deceased who came out of his room. The accused then began to strike him with the machete. Those present in the house heard swearing and yelling. Amongst other things one of the children heard the accused say 'I'm going to kill Pop Willy'.[13]
[13] ts 29 ‑ 30, 51; In opening he was referred to as 'Pop Willy' however in evidence the witness clarified that the accused said 'Uncle Willy'.
No-one saw the full extent of the attack upon the deceased however it is clear that the accused attacked the deceased inflicting numerous injuries. Those injuries include decapitation, severing of the left hand, deep cuts to both ankles, a long incised cut from the sternum to the diaphragm, removal of the heart, some disembowelment, severing of the deceased's penis and testicles, the cutting off of the deceased's face and some deep penetrating wounds to the torso. Subsequently a severed ear and the deceased's scrotum were found in the accused's pocket. A number of knives and sharp implements were found around the deceased's body and the prosecution case is that the injuries are consistent with the use of both the machete and at least one other knife.[14]
[14] ts 31.
Other members of the family escaped from the house and called the police. When police arrived about half‑an‑hour later the accused was still in the house. He was told to come out with his hands up and to then get on his knees. He complied with these orders. After being restrained and handcuffed the accused was placed on a chair in the front yard whilst waiting for an appropriate secure vehicle to arrive. At this time his behaviour was intermittently hostile and he directed abuse and threats both to family members and the police. He also made reference to what he had done, including saying that he had cut the deceased's head off and had scalped him.[15]
[15] ts 31 ‑ 33.
The accused was taken to Katanning where he continued to ramble incoherently. He was taken to Katanning Hospital for a mental health assessment. He was sedated and then assessed by a psychiatrist. By this time he was observed to be calm. The psychiatrist assessed him as fit to be returned to the custody of the police and later that evening he was interviewed. During the interview he referred to being chased and being made to hurt people. He said he could not recall what he had done and that all that he knew was that when the police arrived he had blood on him. He said that it was not him who had done this, it was some other person and then referred to a black magic man having jumped into Uncle Willy. He referred to having similar thoughts before but said that others did not believe him. He said that the devil had made him attack the deceased and that he believed it was because the deceased had something in his room that he was hiding.[16]
[16] ts 33 ‑ 35.
A blood sample was taken from the accused in Katanning and later analysed. It confirmed that the accused had used both methylamphetamine and cannabis. An expert toxicologist, Professor David Joyce, is relied upon as to the effects of these drugs. The toxicology results are consistent with the accused being intoxicated at the time of the attack. The prosecution case is that whilst psychosis can be an aspect of methylamphetamine use the accused's relatively quick recovery is consistent with the psychosis being as a result of acute intoxication rather than any longer term psychosis. It is the State's case that whilst methylamphetamine intoxication can cause increased aggression and delusional beliefs, a person who believes they are under instructions to kill another and that it is necessary to do so still has to go through a sequence of deciding whether to proceed. That is, by acquiring a means (in this case a machete), reasoning how to access the victim, dealing with any obstructions and persisting with the object, represents an expression of will. This is so even though it cannot be known whether a person actually has the ability to interpose his normal conscience driven reasoning to resist from what he now believes to be a righteous act.[17]
[17] ts 37, 49 ‑ 50.
The State says that a specific intent to kill can be inferred from the following:[18]
[18] ts 37, 49 ‑ 50.
1.that the accused went to the house where the deceased was;
2.that he brought with him a machete;
3.that he said he was going to kill the deceased as he entered the house;
4.the actual use of the machete to attack the deceased;
5.the repeated blows to the body of the deceased;
6.the nature of the blows including to vital parts of the body that are required to maintain life, in particular removal of the head and heart;
7.that within a short period thereafter he was complying with police orders;
8.that the accused appears to have a recollection of the events even if it is not a detailed account;
9.that the accused selectively attacked the deceased even though there were many other people in the house;
10.that people in the house tried to stop the accused but that did not stop him and he kept focusing on the deceased; and
11.admissions made immediately after in the presence of the police when the accused referred to having cut the deceased's head off and having scalped him.
Defence case
The defence takes no issue with the objective facts. It is accepted that in the early hours of 4 August 2019 the accused killed the deceased. At around about that time he walked from his home address in Crawford Street to 61 Garrity Street in Tambellup, the home of his mother and of the deceased. He went to the bedroom of the deceased and dragged him out of the room into the hallway and then proceeded to strike him a number of times with the machete causing catastrophic injuries. It is accepted that the attack on the deceased was a sustained and savage attack. There is no suggestion that self‑defence or accident arises on the facts.[19]
[19] ts 54.
The defence position is that the State has the onus of proving that the accused had an intention to cause a specific result; that is, either death or an injury that was likely to be life endangering and that as a result of intoxication with drugs the accused lacked the capacity to form such an intention. The defence case is that having regard to the degree of intoxication and the effect that it had on the accused it cannot be proven beyond reasonable doubt that the accused had the necessary specific intent for murder.[20]
[20] ts 54.
It is accepted that an insanity defence under s 27 of the Criminal Code (insanity) cannot arise given that any effects on the accused's mental state at the time were as a result of the voluntary use of drugs. However voluntary intoxication remains relevant to the question of whether an accused had a specific intent where such an intent is an element of the offence charged, as it is here (see s 28(3) of the Criminal Code).[21]
[21] ts 54 ‑ 5.
The defence case is that the accused's heavy use of methylamphetamine put him at risk of a drug induced psychosis. It is contended that the accused was acting under drug induced delusions when he killed the deceased. The defence say that the State must first prove that the accused had the capacity to form the necessary intent and then, if that is proved, that in fact he did have the necessary intent at the relevant time.[22]
[22] ts 55.
It is accepted that in the event specific intent is not proven to the requisite standard the appropriate verdict would be guilty of unlawful killing or manslaughter.[23]
[23] ts 55.
Evidence
The factual circumstances are not in dispute. The evidence of the witnesses who spoke to those circumstances was not contested and there was very little cross‑examination. That evidence can be summarised as follows.
As at August 2019 the accused was living at 25 Crawford Street Tambellup with his partner Carmen Farmer. His mother lived a very short distance away at 61 Garrity Street Tambellup with the deceased and two of her grandchildren. The accused had used illicit drugs, in particular methylamphetamine over several years and at least since 2015.
Brendan Ugle
In August 2019 the accused was using methylamphetamine on a regular basis in the company of Brendan Ugle. Mr Ugle was a long‑time friend and a cousin of the accused's father. Mr Ugle had known the accused all his life and also knew the deceased and had seen them together. He described the relationship between the accused and the deceased as cordial and that they were 'nice to each other'.[24]
[24] ts 62 ‑ 63.
In the six or seven days prior to 3 August 2019 Mr Ugle said that he and the accused used methylamphetamine 'pretty much every day'. Mr Ugle said he would purchase the methylamphetamine in half weights, being 5 points or 0.5 g. He would share this equally with the accused and the accused would inject them both as Mr Ugle was unable to inject himself. They used about 5 points a day between them. Mr Ugle said that he enjoyed the accused's company and that they spent time talking about a range of subjects including world affairs, travelling around Australia, local issues and perceptions of Aboriginal people. Mr Ugle said that the drugs were usually purchased in Katanning and that they would then drive back to Tambellup together, stopping at Broomehill on the way and using the public toilets there to shoot up some of the drugs.[25]
[25] ts 65 ‑ 69.
On the afternoon of 3 August 2019 Mr Ugle contacted the accused and asked him if he would like to go to Katanning to 'get one to take the edge off'. He said that at the time he was coming down from the effects of the drug use and that this was a reference to getting more of the drugs. The accused agreed to come and Mr Ugle collected him at about 5.00 pm. As on previous occasions they drove to Katanning, Mr Ugle bought some methylamphetamine and on the return drive they stopped at Broomehill and injected some of the drugs. They shared 3 points of the 5 points he had purchased. Mr Ugle said that he did not notice any particular change in the accused at this time. He said that the accused was the 'same person' and that they always respected each other.[26]
[26] ts 70 ‑ 72.
Mr Ugle and the accused got back to Tambellup at about 7.30 ‑ 8.00 pm and the accused was dropped off at his house. Mr Ugle then went to the house of another friend in Tambellup and returned to the house of the accused about 10 ‑ 15 minutes later. Another man, Gregory Pickett, was there and they all drove together in Mr Ugle's car about 5 km out of Tambellup to Noongar Park. At that location Mr Ugle gave some of the remaining methylamphetamine to each of Gregory Pickett and the accused, who both used it. They then returned to the accused's house in Tambellup.[27]
[27] ts 72 ‑ 76.
Gregory Pickett, the accused and Carmen Farmer went to a back room where they smoked cannabis. Mr Ugle remained in the kitchen playing a guitar. Sometime later the accused came out holding a bible and quoted what sounded like verses. Mr Ugle had never heard him speak like this before. The accused suggested that they go for a drive to his mother's house, though it was only 50 m away.[28]
[28] ts 77 ‑ 80.
They drove together the short distance in Mr Ugle's car and when they pulled up the accused began to speak about black magic. He said that Mr Ugle had black magic and that he, Mr Ugle, had been involved in the death of his uncle or family members. Mr Ugle said that he had not been involved in the death of any of the accused's family members, though he had been an Aboriginal police liaison officer in the early nineties when a high speed chase had occurred in which a relation of the accused had been shot and injured by other police officers.[29]
[29] ts 81 ‑ 82.
The accused then got out of Mr Ugle's car, walked to the front of his mother's house and began shouting. He said 'mum, I've got Brendan Ugle here. He has got black magic' or words to that effect. The accused shouted out to his mother not to come out of the house. He then said something about his family being taken by black magic. Mr Ugle decided to leave at this point and reversed his car away from the accused. The accused began running towards him and the last time Mr Ugle saw him was in the vicinity of a laneway adjacent to the accused's house. Mr Ugle said in evidence that he was trying to get away from the accused because he felt as if his presence was agitating the accused and that he would come back to see him the next day.[30]
[30] ts 84 ‑ 86.
In cross‑examination Mr Ugle's said that he had known the accused for approximately 20 years and that during that time the accused had never shown any anger towards him, nor had he ever seen him being violent with anyone else. He also said that the drugs obtained on this occasion did not appear to be any different from those that he had got on other occasions. Mr Ugle had never seen the accused behave as he did when he began quote from the bible and to talk about black magic. He believed that the time when he left was around midnight.[31]
Gregory Pickett
[31] ts 88 ‑ 96.
Gregory Pickett has known the accused for over 30 years. He had seen the accused and the deceased together and it seemed to him that their relationship was good. He said that sometimes when they were both drinking they would have angry words and the accused would try to take the deceased's alcohol away from him. This type of thing did not happen every time they drank together, only sometimes.[32]
[32] ts 99 ‑ 101.
Mr Pickett confirmed that on the evening of 3 August 2019 he went with the accused and Brendan Ugle to Noongar Park. At that location the accused injected himself and Mr Pickett with some drugs that were supplied by Mr Ugle. He referred to them each having 20 units from a syringe. They then returned to the accused's house at about 8.30 pm or 9.00 pm.[33]
[33] ts 101 ‑ 103.
Mr Pickett, the accused and Carmen Farmer then smoked some cannabis from a pipe. The accused had half an ounce of cannabis with him. He said that the accused was upset about an adopted sister or cousin who was being held in a mental health ward at a hospital in Albany. He said that bad people 'were doing her in'. He referred to 'some black fella' trying to do her in. Mr Pickett said the accused was 'going off his head a bit'; this continued for about half an hour. The accused then picked up a 'slasher' that was some 30 ‑ 40 cm long from underneath a bed. The accused then left the house to go to his mother's house.[34]
[34] ts 103 ‑ 106.
Carmen Farmer left soon afterwards to go and look for the accused. She returned after about 10 minutes, told Mr Pickett something about what had happened at the accused's mother's house and then walked Mr Pickett home. Mr Pickett said that the drug that he had taken that night kept him awake and that he did not sleep until about 1.30 am. He said that he had taken methylamphetamine with the accused on about four occasions before this and that the accused had seemed okay on those occasions. The accused did not normally become violent, usually he became quiet.[35]
Lillian Penny
[35] ts 107 ‑ 110.
Lillian Penny is a cousin of the accused's father and also lives in Tambellup. She is known to the accused as Aunty May. She said that the deceased had been living in the accused's mother's house for at least 20 years.[36]
[36] ts 114.
Ms Penny said that prior to August 2019 there had been a couple of occasions when the accused 'wasn't himself' and she had been asked to come and pray for him. She said that on one of these previous occasions the accused had his gaze fixed on a wall and appeared to be scared of something. She could not recall exactly when these occasions were, but they were less than 18 months ago.[37]
[37] ts 116.
On the evening of 3 August 2019 Ms Penny was at her home in Tambellup. The accused came to her house sometime around 11.00 ‑ 11.30 pm and began calling out 'Aunty May, Aunty May'. When she opened the door she found that he was carrying a small bible. He asked for a bigger bible which she gave him and she then offered to pray with him. He went to the ground on his knees and Ms Penny prayed with him. Ms Penny saw that the accused's mother and two of her granddaughters were standing watching some distance away. The accused then got up and walked towards his mother.[38]
[38] ts 119 ‑ 121.
Ms Penny had seen the accused and the deceased together in the past and said that in her observation there was 'no problem whatsoever'. When asked whether the deceased was a strong or a weak man she said he was a weak man. She said that the accused was very kind, nice and gentle when not taking drink or drugs. She agreed that on one of the previous occasions when she had been asked for assistance with the accused she had gone with him to Katanning Hospital. She said that on the night of 3 August 2019 he seemed 'almost the same as the other times'.[39]
Millicent Williams
[39] ts 121 ‑ 124.
Millicent Williams is the sister of the accused and is known in the family as Sissy. She grew up in Tambellup until moving away to live with her grandparents at the age of about 14 or 15. Until that age she lived with her mother, father and brothers. She said that for most of her childhood the deceased also lived with them and that she knew him as Uncle Willy. In more recent years she has come to visit her mother roughly four times a year. On these occasions she had seen the deceased and the accused drinking together and listening to music at her mother's house. She saw them talking and laughing together but did not recall any tension between them. She did recall the accused on occasion saying to the deceased that he had had enough to drink and should go to bed. She said that this was done in a 'nice voice' and that the deceased would laugh and say that he was not going to sleep.[40]
[40] ts 132 ‑ 135.
Ms Williams said that she had seen the accused use methylamphetamines and that when he did he would start sweating and become quiet. He would sometimes drink alcohol at the same time and then would get a 'bit loud'. However she said that he would still 'get on good with people' whilst in this state. She had known him to kick bins, chairs and plants at her mother's house.[41]
[41] ts 136 ‑ 138.
On the night of 3 August 2019 Ms Williams and three of her children were staying at her mother's house. That evening she was in her mother's room watching a movie when she heard the accused at the front of the house talking. She heard the accused walk in and ask for 'Uncle Willy'. She heard her mother say that the deceased was in his room asleep. The deceased then came out of his room and said he was tired. She saw the accused was carrying a machete with his hand held down to the side of his body. She said that she was scared and ran from the house to get help. She could hear children screaming and her mother say 'stop it'. She heard the accused shouting 'oh you mother fucker, you mother fucker'.[42]
[42] ts 140 ‑ 145.
Later in her evidence Ms Williams said that before leaving the house she had seen the accused lift his hand up with the machete and bring it down with a hacking motion of his right hand. She said that the deceased was standing next to the accused when he did this. In cross‑examination she said that she also saw the accused pushing his mother when he came into the house. She had never seen him do this before. She agreed that the accused was 'in a frenzy' and that she meant by this that he was not acting as himself.[43]
Deborah Williams
[43] ts 151 ‑ 156.
Deborah Williams was a child witness. She was 16 at the time of the trial. A child witness interview was played to the court and she then gave some further evidence in person. Ms Williams is the granddaughter of the accused's mother, that is his niece. She lives at her grandmother's house and has a bedroom at the back of the house immediately adjacent to that of the deceased.[44]
[44] ts 162.
Ms Williams was in her room on the night the accused entered the house. She opened the door to let the accused in but was frightened and ran back to her room. She said that the accused had come to the house on an earlier occasion that night and had told his mother not to come outside. When he came to the house with the machete she heard her grandmother asking what he was doing. The accused responded by saying 'mum, I have to kill Uncle Willy'. She opened her door and saw the accused grab the deceased, throw him to the floor, drag him through the hallway and hit him with the machete repeatedly. She could hear the deceased screaming 'what did I do, what did I do, what are you doing Greg.' Her grandmother tried to stop the accused but he pushed her back against a wall.[45]
[45] ts 165 ‑ 166; Interview of Deborah Williams, transcript 6 August 2019, ts 3 ‑ 5.
Ms Williams fled the house and later heard the accused yelling abuse and threats to other people. She said that he was a 'big drug addict' and she had seen him affected by drugs on other occasions but not this badly. She described the accused as being almost 'demonic'. She said he was not very responsive and appeared to be 'in a state of mind where he could not communicate'. In re‑examination she said that she could also recall the accused saying 'Willy you dog, you black dog'.[46]
Joy Williams
[46] ts 165, 169; Interview of Deborah Williams, transcript 6 August 2019, ts 2, 19.
Joy Williams was another child witness. She is also a niece of the accused and was present at his mother's house on the night of 3 August 2019. Her evidence was also given by way of the playing of a child witness interview and additional oral evidence in person.
Ms Williams heard the accused come into the house and tell her grandmother that he wanted to kill the deceased. She was in her bedroom at the time watching television. She heard sounds like chairs being thrown around and the accused shouting and swearing. She opened her door and saw the accused standing near the door to the deceased's room holding a knife. Her grandmother was trying to get the knife off him and she heard the accused say that he was going to kill the deceased.[47]
[47] ts 172; Interview of Joy Williams, transcript 6 August 2019, ts 5 ‑ 8.
Ms Williams fled the house soon after and did not see the accused strike the deceased. In cross‑examination she agreed that she had known the accused all her life and that the way he behaved on that night was different to the way he normally behaves. She said that the words the accused used were 'I'm going to kill Willy'.[48]
Kevin Taylor
[48] ts 173 ‑ 174; Interview of Joy Williams, transcript 6 August 2019, ts 15.
Kevin Taylor was also a child witness. He is a nephew of the accused and was also present at the house on the night of 3 August 2019. His evidence was adduced by playing a child witness interview and reading two statements by consent.
Mr Taylor was in his grandmother's room when he heard the accused come to the house on the first occasion and tell his mother not to come out. He came back later and said 'open the door'. He heard the accused walk to the deceased's room and the deceased saying 'no'. He did not see them together but could hear plates smashing and the accused swearing at the deceased. He also heard the accused saying 'praise the lord' and 'you black mothereffer'. He also heard his grandmother say 'don't hurt him'. He was only in the house for about two minutes after the accused arrived. He then fled telling his cousins to come with him.[49]
[49] ts 176; Interview of Kevin Taylor, transcript 4 August 2019, ts 2, 4 ‑ 5.
When asked in the interview how the accused and the deceased were getting along Kevin Taylor said 'they always get along all the time. I don't know what happened'.[50]
Sergeant Joshua Humble
[50] Interview of Kevin Taylor, transcript 4 August 2019, ts 11.
Sergeant Humble was stationed at the Tambellup Police Station in August 2019. It is normally a two person police station but the other position was vacant at that time. At 12.08 am on 4 August 2019 he received a call from police in Albany that an incident had been reported in Tambellup. Arrangements were made for assistance to be provided from police in Katanning. He then went to the Tambellup Police Station to collect equipment.[51]
[51] ts 177 ‑ 178.
At about 12.37 am Sgt Humble drove to the Garrity Street house and saw that police from Katanning had also just arrived. He saw the two police officers from Katanning approach the house. He could see the accused coming out of the front door yelling some 'gibberish'. He said the accused would cease momentarily and then start again. The accused complied with instructions to come out of the house and put his hands on his head. He was then asked to get onto his knees and did not immediately comply. After two or three requests he got to his knees and was handcuffed.[52]
[52] ts 180 ‑ 182.
Sgt Humble then entered the house and saw the body of the deceased in the kitchen. He assisted some members of the family to leave the house and then went back outside. He told the accused that he was under arrest on suspicion of murder and that he had rights in accordance with s 137 and s 138 of the Criminal Investigations Act 2006 (WA) and he was also cautioned. He described the accused's behaviour as 'very unusual' in that one minute he seemed quiet and then the next he was yelling. He would also wave his arms around. He said that this variation in mood continued until the accused was taken away in a police vehicle. In this period the accused said 'I'll kill you and your families' but it was not clear who that threat was directed to. A small bag of cannabis was found in the accused's pocket and another quantity of cannabis was later found in a small pencil case nearby.[53]
First Constable Michael Le Poidevin and First Constable Rhys Challen
[53] ts 183 ‑ 188, 191 ‑ 192.
First Constable Le Poidevin and First Constable Challen were police officers from Katanning who were tasked to attend the scene in Tambellup. They arrived together in a vehicle at about 12.35 am on 4 August 2019. They parked opposite the Garrity Street house and walked towards the house. F/C Le Poidevin said that the front door was open and he could see the accused inside. The accused seemed agitated and was waving his arms around. F/C Le Poidevin drew his firearm and saw the accused start to walk towards the front door with his hands held above his head. He was told to get onto his knees and did this almost straight away, however when told to lie down on his stomach he said 'fuck off, I'm not doing that'. He was then pushed forward and handcuffed.[54]
[54] ts 201 ‑ 203.
After being told that a person in the house appeared to be dead F/C Le Poidevin arrested the accused on suspicion of murder, advised him of his rights and cautioned him. When asked if he understood, the accused started to scream towards members of his family, who were standing a little way down the street. The words used by the accused were to the effect of:
I'm going to hell for what I did. I will come back and get you. I cut that cunt up good. I will cut you all up. It wasn't the speed, God told me to do it. I scalped that cunt. I cut his head off and I will take yours. I did it and I'm going to hell.
The accused's pockets were searched and, amongst other things, a clip seal bag of cannabis and a piece of human flesh were found in one of his pockets.[55]
[55] ts 204 ‑ 206.
The accused was then placed on a chair on the lawn. He displayed mood swings and would talk and shout at the police officers and then talk and shout towards his family. On one occasion he looked at the police officers and said 'I took his head, and I will take yours too'. He also shouted towards family members 'I killed him and I'm going to hell for this'. He continually asked for a cigarette and to be taken out of town and shot. He was screaming towards his family about wanting books from the house, about going to hell and how his work was not done and that if he was not locked up he would come back.[56]
[56] ts 207.
A secure police vehicle was despatched from Gnowangerup and whilst waiting for that vehicle to arrive the accused became more and more agitated. F/C Le Poidevin said that at one point the accused stood up, became aggressive and said 'you need to take me out of here right now, you need to lock me up in the van'. He was asked to sit down on the chair but refused to comply. He kicked the chair away and F/C Challen swept his legs from underneath him. The accused and the police officers went to the ground and the accused was restrained. The police officers from Gnowangerup then arrived and assisted in placing the accused in the back of the van. By this time the accused was only offering minor resistance. Before he went into the van the accused said that he did not want to leave without his book and that the police needed to go inside to get his book.[57]
[57] ts 208.
F/C Challen gave similar evidence to F/C Le Poidevin. F/C Challen also gave evidence regarding things said by the accused after he was arrested. The accused kept repeating 'I had to'. There was talk of drugs and the bible and the accused then said 'You will have no head. I will take it' and then 'I chopped the cunt right up'. There was then more talk that F/C Challen described as 'rambling' during which he made various requests to be taken away and shot. F/C Challen believed that the accused may have kicked the side of the van once or twice and probably kept shouting though he could not remember exactly.[58]
Louise Cristinelli
[58] ts 222, 226.
Louise Cristinelli is a volunteer with St John's Ambulance in Tambellup. Her statement was read by consent. She arrived at the scene in Garrity Street with two other ambulance officers at about 1.15 am. She saw a man sitting in a chair at the front of the property in company with police officers. The man was talking about black magic.[59]
Constable Gary Mason
[59] ts 239 ‑ 240.
Constable Gary Mason was one of the officers who arrived from Gnowangerup in the secure police vehicle. His statement was read by consent. He stated that he arrived with a colleague at about 1.45 am on 4 August 2019. On arrival he saw the accused being held down by F/C Le Poidevin and F/C Challen. He was handcuffed, struggling and yelling out 'Mum, get me the book'. He repeated that phrase several times.[60]
[60] ts 242.
The accused was taken to the Katanning Police Station where he was removed and taken to a custody area. He was assisted to put on a pair of forensic overalls that were placed over his existing clothes. Forensic boots were placed over his shoes and brown paper bags over both hands. He was held in the holding dock in the custody area.[61]
[61] ts 242 ‑ 243.
At 6.20 am Constable Mason and a colleague conveyed the accused to Katanning Hospital for a mental health examination. At the hospital the accused was agitated and kept saying 'I needed to die, and I will kill myself'. He said this a number of times. This evidence was confirmed by Constable Rory Lawty, whose statement was also read by consent.[62]
Senior Constable Darryl Gaull
[62] ts 243.
Senior Constable Gaull undertook guard duties whilst the accused was being held at Katanning Hospital. His statement was also read by consent. He was present when the accused was examined by forensic officers from the Albany Police Station. This was at about 12.40 pm and the accused appeared to be asleep and was secured by his wrist to the hospital bed with a pair of rigid handcuffs. The handcuffs were removed at 12.55 pm to enable the forensic officers to conduct an examination of the accused's hands. During this process the accused complied with requests to move his arm or hand but appeared to be very sleepy. The handcuffs were reapplied at the conclusion of the examination. The handcuffs were removed again at 1.55 pm to allow hospital staff to take blood from the accused.[63]
[63] ts 245.
At about 3.25 pm a detective spoke to the accused, advised him that he was under arrest and he was cautioned. The accused stated that he understood that he did not have to answer questions and that he might answer questions later.[64]
[64] ts 246.
At 4.15 pm the accused participated in a video link to Perth from the hospital where he spoke to a doctor from the mental health services. Officer Gaull overheard part of this conversation. When the doctor asked the accused why he was there he answered 'Because I killed my Uncle Willy' and said that everyone he saw was not 'who they looked like but had the face of the devil'. The police were advised shortly after this that the accused would not be held on mental health grounds. He was then physically checked by an on‑call doctor and cleared to be in police custody. He was given something to eat and transferred to the Albany Police Station lockup.[65]
[65] ts 246.
Officer Gaull said that in his dealings with the accused prior to the transfer he was cooperative and completely compliant. The accused arrived at the Albany Police Station at about 8.30 pm on 4 August 2019. In a subsequent statement Officer Gaull said that when the accused was cautioned at Katanning he acknowledged that he understood his rights and the caution. During the teleconference with the mental health doctor the accused also said that he wished to die because he had done the wrong thing and words to the effect of 'If I had not killed Uncle Willy I would have killed my mother'.[66]
Constable Catriona Honey
[66] ts 247.
Constable Honey was on duty at the Katanning Police Station when the accused arrived at 2.30 am on 4 August 2019. Her statement was read by consent. She states that on arrival the accused was extremely hostile and verbally aggressive whilst being taken to the lockup area. He said that he was not Greg or Gregory and that his name was 'no‑one'. She assisted in putting the forensic clothing on to the accused and putting him into a holding cell. She states that throughout the time that the accused was in police custody he displayed mannerisms similar to that of somebody under the influence of illicit drugs. She said his behaviour was like that she had seen in others who had recently used an amphetamine of some sort.[67]
[67] ts 247 ‑ 248.
The accused repeatedly said that he wanted police to kill him, that he would kill the police and that he wanted to kill himself. These things were repeatedly said over several hours in the lockup area. The accused spat several times on the glass door of the holding cell and banged his head a few times on the door. This did not appear to be very hard and there was no injury resulting. Officer Honey said that whilst in the holding cell the accused fell asleep and appeared to wake himself up with a jolt. He then recommenced saying the same words about harming himself and others before falling back to sleep. This process was repeated several times until at 5.20 am she heard the accused say 'I'm sorry for what I've done'. He then continued to repeat threats of self‑harm and harm to the police. She heard him repeatedly say 'Take my life, please'. He was kept in handcuffs secured at the rear during this time due to concerns that he may self‑harm.[68]
[68] ts 249.
At about 6.15 am the accused was taken to the Katanning District Hospital. Officer Honey next saw him at 8.15 am after he had been sedated. At about 10.30 am forensic officers removed some items from the left pocket of the accused's tracksuit pants. One of the items was what appeared to be a severed human ear, including a portion of scalp skin. Another piece of human flesh was also removed and appeared to be a human scrotum.[69]
Detective Senior Constable Nadia Poulsen
[69] ts 249 ‑ 250.
Detective Senior Constable Poulsen spoke to the accused at 3.20 pm on 4 August 2019 at Katanning Hospital. Her statement was read by consent. She states that the accused was calm and appeared to understand where he was. She advised him that he was being charged with murder and in response the accused said 'I don't know what happened'. She then cautioned the accused and he said 'It wasn't me. I don't know why I did it. I don't know what made me do it. Are we going to talk about it later or am I being charged'. She then told the accused that he was being charged and that an assessment of his mental health state was required. She said that once that assessment was complete the police would reassess whether he should be interviewed. The accused appeared to understand this.[70]
[70] ts 252.
Between 4.12 pm and 4.32 pm a video conference occurred between the accused and a doctor for the purpose of a mental health assessment. Det S/C Poulsen was outside the room but could hear the conversation. Notes were made by Det S/C Poulsen of the accused's conversation with the doctor and they record that he said the following: 'I killed my uncle. It was scary. Everything changed. Everyone was evil'. When asked why he did it the accused said 'I don't know why. When I came into the house, people I was talking to – it was different. Everyone was the same person. It was the Devil. When I walked into the house everything changed. They weren't who they were supposed to be. Was the Devil'. When asked who was there the accused said 'My mum'. He then talked about a bible and a cemetery and then said 'But it wasn't them. Well, it wasn't them, but they weren't looking at me in the eyes. I don't know what to do, but I know I had to do something. It's hard to explain'. When asked how he felt now, the accused said 'I feel like crying for what I have done. I have done a horrible thing. Give me a needle so I never wake up. I feel horrible. When asked when he last took drugs the accused said 'I had meth the day before. I have it nearly every day. Inject it. Makes me feel good'. When asked whether he heard voices the accused said 'I had to take his nuts or he would cut my mum's head off'. When asked if the voice was still there the accused said 'It's okay now. I'm not hearing nothing'. He then said 'I just want this over and done with. Give me a tablet so I don't wake up. Give me an injection so I can fall asleep forever. I'm not going to live here with what I have done'.[71]
[71] ts 38, 252.
Det S/C Officer Poulsen later received a phone call from the doctor advising that the accused was fit to be in police custody. Officer Poulsen then spoke to the accused at 5.50 pm and asked if he wished to participate in an interview with police at Albany Police Station. He advised that he did. He was then transported to the Albany Police Station arriving at about 8.50 pm. He was again advised that he had been charged with murder and indicated that he understood. He was again advised of his rights and said that the only right he wished to exercise was to contact a lawyer.[72]
[72] ts 253.
Once the accused had spoken to a lawyer Officer Poulsen and Detective Senior Constable Peters commenced an interview with him at 10.11 pm. During the interview the accused became agitated and attempted to self‑harm by repeatedly hitting his head against the table. He was restrained and the interview was terminated at 10.55 pm.[73]
Detective Senior Constable Aaron Reichstein
[73] ts 253 ‑ 254.
Detective Senior Constable Reichstein travelled to Katanning Police Station and first saw the accused at 4.50 am on 4 August 2019, when the accused was asleep. His statement was read by consent. At 6.05 am Officer Reichstein and another police officer attempted to speak to the accused to ensure that he was aware of his rights and to request consent for a forensic procedure. When Officer Reichstein attempted to introduce himself the accused replied with words to the effect of 'I'm not Greg, Greg is not here'. When asked who he was, the accused responded with words to the effect of 'I'm no one'. The accused then began banging his head against the glass and rambling incoherently. He became extremely agitated. He continued in this manner for a while before calming down.[74]
[74] ts 255 ‑ 256.
The accused was then transported to Katanning Hospital for a mental health assessment. He was initially seen by an on‑call doctor and was extremely agitated and repeating words to the effect of 'I want to die. I don't want to kill more people. I want to sleep. Greg is gone, I'm a no one. It wasn't Greg. It was another person. I'm sorry for what I've done. Greg didn't do it.' The on‑call doctor assessed the accused and gave him sedation.[75]
Police interview
[75] ts 257.
The police interview between the accused and Officers Poulsen and Peters at the Albany Police Station commenced at approximately 10.00 pm. During the interview the accused was asked to say what had happened the night before. He said:[76]
Er [indistinct] when I was sitting at home. I just had a couple of cones and talking to my woman and the damn things just got different, changed, everything just changed in her. I was, they all changed. There're all the same. All the same. When I say the same was, er, this same person [indistinct] I walked from them. I walked out on the street to go and see Aunty May and then and I walked to them, they was all, that was all in what you call it in a, [indistinct]. I tried to talk to them some more and they properly don't talk to them. They'd all be [indistinct] and it was like they didn't know what I was saying. And like I know, [indistinct] bit scary so I didn't know where to go. I just kept walking around Tambellup, I just keep talking to people and there's no-one will talk to him. Then [indistinct] she's just – all acting a bit different [indistinct] where there was or supposed to be. I think it was a, er, may be a cone had tricked on me. And then he caught me, and that's when I was loading the [indistinct] put a blank in [indistinct] for what I did. And all – all I remember is waking up or waking –getting up and, um, I had blood on my shirt [indistinct] bloody go with me. I told them to shoot me should have shot me [indistinct] … No I don't know a reason. One of the reasons was I [indistinct] I was cursed with something like that [indistinct] I don't know what it is – what it was. It happened to me last time and people wouldn't believe me, like I found something in – in that town. The first one [indistinct] that would listen. The second time, I didn't think it was going to be like this. Not my uncle, [indistinct] he's my – he's my uncle and I wouldn't – I would never probably do anything like that to him.
[76] Accused's record of interview transcript 4 August 2019, ts 9 ‑ 10.
He continued to talk about people having spoken to him that night but they were all the same person and an evil person. When asked who the evil person was he said that it must be Satan or 'someone'. He said 'I don't know who it is but he plays games'. He said that if he had said it wrong they would not have let him in the house but they did let him in and that was 'the funny thing about it'. He spoke of it being a scary night and something coming after him. When asked why he left the house that night he said 'because they was cursed [indistinct] they couldn't see it themselves even if I go back and tell her, she would never believe it'. He spoke of people trying to come and catch him but not being able to find him and that all of the houses were cursed. He said something was telling him which way to go, that he thought the world had ended and that there were 'zombies walking around'.[77]
[77] Accused's record of interview transcript 4 August 2019, ts 11 ‑ 14.
When asked why he went to 61 Garrity Street on the first occasion he said 'I don't know, I went to go talk to my mum'. He then said 'I told them, don't let me in the house. And they still let me in the house'. When asked why he said that, he said 'because this thing was chasing me and the thing was alive in me'. When asked to describe the thing he said '[indistinct] he wants you just to hurt, that's what he wants you to do … he just makes you hurt people and take people and go to hell with him'. When he returned to the house later he said that his mum let him in and that he thought that somehow they were in on the curse too. He said he got on well with all of the people in the house 'even Uncle Willy, that's what I don't understand. He's [indistinct] he's the last person I'm worried – I wouldn't worry [indistinct] it came upon him. And I still can't … I don't think mum will [indistinct] I don't will even give a shit about me anymore'.[78]
[78] Accused's record of interview transcript 4 August 2019, ts 16 ‑ 18.
When asked what happened in the house when he came back on the second occasion the accused said he did not know and that all he could remember was going there and then the police coming. He swore that he could not remember what occurred in between. He said he did not know what he did and that all he knew was that he had blood on him. When asked what he meant by earlier answers about doing something to Willy the accused said 'it wasn't me. It was – it wasn't me … that night it wasn't me … it was some other person [indistinct] that's the person I was talking about … he tells me when he wants something'. He referred to this entity coming all the time and tormenting him. He said that this entity told him that it would cut his lips off and that he would burn in hell.[79]
[79] Accused's record of interview transcript 4 August 2019, ts 18 ‑ 20.
The accused said that on a previous occasion the entity had 'jumped into Uncle Willy'. When asked who it was who jumped into Uncle Willy he said 'black magic man'. When asked what happened when this entity had jumped into Uncle Willy last time the accused said 'he started laughing at me and he walked up to door and told to get the f– out of my door and he walked back in next to me and he was laughing at me. It wasn't him, it was – Uncle Willy, it was someone else'. He said he got through that night by reading the bible. He said he has an adopted sister who is in Graylands and that she also talked about a black magic man who was trying to get her but that no‑one believed her.[80]
[80] Accused's record of interview transcript 4 August 2019, ts 20 ‑ 22.
It was put to the accused that he had dealt with these issues on other occasions. He was asked what happened on this occasion. He said 'the difference is this one, there's no out'. He said there was no out 'cause look where I am now'. He said the difference was that the curse 'must have been in me', 'cause it wasn't me last night'. He said he did not know why he had done what he had done and said that he does not do things 'like that' and then said 'well I never skun a kangaroo or anything in 20 years, 30 years'. He said 'it was – it wasn't me. But I – I also gotta – what happens is – I'll take the blame for it, like, you know? I felt it wasn't me who done it. If it was my body that done it but inside me it wasn't me. It – it was someone else. That's what – that's what I'm trying to say. Like, I – evil – evil type of things'. He agreed that something had taken over his body and done something terrible. He referred to what he had done as being 'bad' and feeling 'shame'. He said he wanted to shut up and die and that he did not want to go to jail. He said 'I don't want to know what I – I did to him. Because I don't want –I don't want to be that person. You know, that person you know. I don't want it to be a person, cause I was change – I was changing, changing real quick.'[81]
[81] Accused's record of interview transcript 4 August 2019, ts 22 ‑ 25.
When asked about the deceased and how they got along, the accused said 'I love Uncle Willy with all my heart and, um, I'd done anything for him. And I – I [indistinct] don't make no sense. It still doesn't make no sense … how close we was. There was no need for this, you know. No need'.[82]
[82] Accused's record of interview transcript 4 August 2019, ts 26.
The accused said that he did not know if he had gone to the house to attack the deceased but agreed that the devil had made him do it. He said[83]
he comes to me all the time and he wants me to do something he does it. Like, mum and all that they lock themselves in their rooms where they stay. When they all lock themselves in – like he the boss of me every night. I get sick of him. I – don't sleep, I don't sleep at mum's house, cause he comes in every night. And I tell them and know that, that don't believe me. So, I just get used, I just get used of the hidings and then [indistinct] know who he is [indistinct] fight each one of them.
[83] Accused's record of interview transcript 4 August 2019, ts 26 ‑ 27.
When asked why it was that the devil wanted him to hurt the deceased the accused said it was because 'I think he had the magic'. He referred to the deceased having something in his room that he was hiding. He said he wanted a book back but no‑one would give it to him. He said that the book was a bible. Soon after this the accused began to bang his head on the table in the interview room and was restrained by the police officers. The interview was then terminated.[84]
Post-mortem examination
[84] Accused's record of interview transcript 4 August 2019, ts 27 ‑ 28.
The injuries suffered by the deceased were extreme and extensive. The accused does not deny that he inflicted all of the injuries. It is necessary to detail them because their nature and extent is relevant in considering the state of mind of the accused at the time the injuries were inflicted.
Dr Jodi White is the forensic pathologist who conducted the post‑mortem examination on the body of the deceased on 7 August 2019. The cause of death was multiple sharp force injuries. In her report Dr White referred to multiple sharp force injuries to the head with extensive fracturing of the skull and associated traumatic brain injury. There was extensive injury to the neck with decapitation of the head. There were multiple sharp force injuries to the trunk and limbs with complete amputation of the left hand and internal injury to the lungs, heart, liver and stomach.[85]
[85] Exhibit 20.
Examination of the head showed that the base of the skull was extensively fractured into several pieces. There were several sharp force wounds to the top and back of the head including a large penetrating chopping‑type injury to the scalp. Below this and on the left‑side of the scalp were two large penetrating full thickness chopping‑type sharp force injuries. There was also a large full thickness sharp force chopping‑type injury to the back of the head which has removed the head from the neck and torso. The cervical spine had been transected. The face of the deceased had been removed from the skull in several pieces.[86]
[86] Exhibit 20.
There were several wounds to the torso, most of which were incised wounds but at least two of which were deep penetrating wounds. The penis and scrotum of the deceased had been removed with a sharp instrument. The left hand had been amputated. The right foot was almost amputated. There was a large incision down the middle of the breast plate and the heart had been removed and cut from the body. Some of the intestines and inner organs were also removed.
Dr White said that a machete found in the laundry of the house could have been the cause of almost all of the injuries with the exception of the two deep penetrating wounds. The width of these wounds was not consistent with the machete and must have been caused by another weapon. A number of knives were found scattered around the kitchen and the body of the deceased. Dr White agreed that one of these instruments could have caused these wounds.[87]
[87] ts 276 ‑ 277.
Dr White could not say in what order the injuries had been inflicted. However either the removal of the deceased's head or heart would have resulted in instant death. She agreed that at least some of the injuries required considerable force.[88]
In the course of their reasons the High Court said at 648 ‑ 9:
When a physician's diagnosis or opinion concerning his patient's health or illness is receivable, he is ordinarily allowed to state the 'history' he got from the patient. This practice accords with what seems to be the better opinion in the United States: see Wigmore on Evidence s. 688. It matters not whether the person whose health is in question was a regular patient of the doctor, or whether the doctor saw him for the purpose of qualifying as a witness. This, of course, is quite a different matter from the rule last discussed. That, in cases where it applies, makes statements made to anyone concerning present symptoms and sensations admissible as evidence that those symptoms and sensations, in fact, existed. This makes all statements made to an expert witness admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies; but, except they be admissible under the first rule, such statements are not evidence of the existence in fact of past sensations, experiences and symptoms of the patient. Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician's opinion may have little or no value, for part of the basis of it has gone.
In summary, a medical practitioner who has conducted an examination of a person can give evidence of what the patient has said during that examination regarding the patient's history, symptoms and sensations. However, the statements are not admissible to prove the truth of what has been said unless they are regarding symptoms or sensations being experienced at the time of the examination. Statements regarding the patient's history or symptoms experienced in the past are not admissible to prove the truth of what is said, only the fact that they were said. If statements of this latter type are not confirmed on oath then any opinion based on them may have little or no weight.
This principle has been applied in criminal cases. However in criminal cases the appropriate course has been said to be to give a direction to a jury. This approach is reflected in the Queensland cases of R v Schafferius,[108] and R v Barry.[109] In Schafferius the appellant was on trial for murder and sought to argue that he was not guilty of the offence on account of diminished responsibility under s 304A of the Queensland Criminal Code. Evidence was adduced at trial in support of the defence from a psychiatrist who had interviewed the appellant. However the appellant chose not to give evidence at the trial. Wanstall ACJ (with whom Douglas and Dunne JJ agreed) said at 217:
The principle on which such hearsay may be received in evidence is discussed in Ramsay v Watson (1961) 108 CLR 642 at 648‑9; and in R v Tonkin & Montgomery [1975] Qd R 1. Statements made to an expert witness are admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies, but they are not evidence of the existence in fact of past sensations, experiences and symptoms of the patient. Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. If the man whom he examined refuses to confirm in the witness box what he said in the consulting room the expert opinion may have little or no value, for part of the basis of it has gone.
The learned trial judge, applying the decision in Ramsay v Watson may have been entitled to reject all or most of such hearsay statements once it had been announced that the accused was not going to give evidence. In a criminal trial it may be the better course not to reject such hearsay but to admit it with a direction that, if not sworn to by the patient, it is not evidence of the existence in fact of his past sensations, experiences or symptoms, and a warning that the expert opinion based upon it may have little or no value.
[108] R v Schafferius [1977] Qd R 213.
[109] R v Barry (1984) 1 Qd R 74.
In Barry the trial judge ruled that evidence proposed to be given on behalf of the appellant by a clinical psychologist who had tested the appellant in order to determine his intellectual capacity was inadmissible. On appeal it was held that the evidence of the psychologist was not rendered inadmissible simply because the appellant himself did not give evidence. An important distinguishing feature in Barry was that the testing involved the administration of standardised tools for testing intelligence and the questions put did not relate to the matters at issue in the trial.
Reference was made to Schafferius in the Western Australian case of Pownall v Conlan Management Pty Ltd.[110] In that case Ipp J said at pages 377 ‑ 8:
[I]t is to be noted that in R v Schafferius [1977] Qd R 213 at 217 the Queensland Court of Criminal Appeal appears to have assumed that the trial judge has a discretion to exclude opinion evidence based on inadmissible hearsay, or to admit it and attach to it whatever weight is merited by the circumstances. A similar inference could be drawn from Gordon v The Queen (1982) 41 ALR 64. On the other hand English Exporters (London) Ltd v Eldonwall Ltd, Wright v Sydney Municipal Council, Sych v Hunter, R v Turner, R v Abadom and Steffen v Ruban are contrary to that proposition. They are to the effect that opinion evidence based on unconfirmed specific hearsay is inadmissible and should be excluded.
In my opinion, expert opinion based entirely on inadmissible evidence is itself inadmissible and there is no discretion to admit it. I form this view as to admit such an opinion would be to admit, indirectly, the inadmissible evidence itself. If an opinion, based solely on evidence that the court by law is required to exclude, is itself admitted, the inadmissible evidence would have some influence over the court's decision. Such a result would defeat the purpose of the law that excludes the inadmissible evidence. If the primary facts on which the evidence is based are not admissible, the opinion is valueless and irrelevant and, in my opinion, should be excluded. It is for this reason that the Court of Appeal in R v Turner observed (at 840) that an expert in examination‑in‑chief should be asked to state the facts on which his opinion is based, and that it was wrong to leave it to the other side to elicit the facts by cross‑examination. It is only when the primary facts upon which the opinion has been based are established that the opinion should be admitted into evidence.
On the other hand, where the expert opinion is based only partly on inadmissible testimony and that inadmissible testimony can readily be ascertained and discarded, the opinion should be admitted subject to weight. The opinion of the expert in R v Schafferius appears to have been of this kind and explains the attitude of the Queensland Court of Criminal Appeal in regard to the discretion vested in the trial judge. Gordon v The Queen can also be explained on this basis.
[110] Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370.
In this case prior to Dr Pascu being called she was asked whether it would be possible for her to put aside the information that was provided to her by the accused and whether she would still be able to give an opinion as to whether any psychosis suffered by the accused at the relevant time was likely to be due to intoxication or some underlying mental condition and whether he had an altered mental state at the time of his arrest. She advised that she could do this. In these circumstances I concluded that Dr Pascu's evidence would not be based entirely on inadmissible material and that insofar as she had partly relied upon any information from the accused which had not been confirmed on oath then that would reduce the weight to be accorded to her opinion.
Dr Victoria Pascu
Dr Pascu is a forensic psychiatrist with long experience in the preparation of reports for the courts and in giving evidence. There is no dispute as to her expertise. Dr Pascu had access to the witness statements and transcripts of the relevant witnesses together with the accused's interview with the police and the medical records relating to the 2015 and 2018 incidents.[111]
[111] ts 366.
Dr Pascu said that the earlier incidents in 2015 and 2018 confirmed that the accused had significantly increased his illicit drug use over the last seven or eight years and had experienced episodes where he described bizarre beliefs. This included feeling more religious and feeling that people were after him and his family. She concluded that the accused had developed psychotic symptoms during episodes of intoxication with methylamphetamine. The fact that the past episodes usually resolved within 24 hours, caused Dr Pascu to conclude that the accused does not have an underlying major psychiatric illness like schizophrenia. The earlier episodes were instances of drug induced psychosis.[112]
[112] ts 368 ‑ 370.
Dr Pascu noted that there had also been an incident following the accused's arrest and his remand into custody. On 26 August 2019 he was remanded to the Frankland Centre because there was a sudden degeneration in his mental state in prison. This had occurred despite him being on antipsychotic medication. The accused later admitted to using illicit substances in prison. Again his psychotic symptoms, which were mainly persecutory delusions, settled very quickly. This again confirmed that this was most likely a substance induced psychosis. Dr Pascu was of the view that there was also remorse and feelings of guilt on the part of the accused and that this was indicative of post‑traumatic stress symptoms. The Frankland incident also confirmed that the accused was not suffering from any underlying psychiatric condition.[113]
[113] ts 371.
By the time that Dr Pascu interviewed the accused at Hakea Prison on 5 October 2019 he was not experiencing any psychotic symptoms. He did have insight into his illicit substance use and believed that his conduct was caused by that use.[114]
[114] ts 373.
Dr Pascu said that the police interview with the accused showed indications that he was in an altered mental state at the time. He wanted to assist the police and there was some evidence of thought disorder making him somewhat difficult to follow. The content of his answers was consistent with him experiencing persecutory grandiose delusions with some religious content. Some of the cues that a psychiatrist would follow up were not pursued as the police interview was not being conducted for a psychiatric assessment purpose. The accused described experiencing auditory hallucinations and appeared distracted at times. Towards the end of the interview he became increasingly distressed in talking about the incident. It appeared to Dr Pascu that the accused was still suffering some residual psychosis during the interview. This confirmed for Dr Pascu that it was likely that at the time of the incident the accused was experiencing a methylamphetamine induced psychosis. She was of the view that the most likely cause of this was acute intoxication.[115]
[115] ts 373 ‑ 375.
Dr Pascu said that her views were consistent with the history that had been provided to her by the accused. However if she discounted the information she had received from the accused in the interview of 5 October 2019 she would remain of the view that at the time of the incident he was experiencing a paranoid psychosis that was induced by methylamphetamine due to acute intoxication.[116]
[116] ts 376.
Dr Pascu was asked what the effect of an episode of acute paranoid psychosis might have on the will of a person. She said that the fact that a person has a psychotic illness or is suffering a psychotic episode does not mean that they do not have the will to do things. She said that such a person can do normal things such as have breakfast, drive a car or get on a bus, notwithstanding that they may have underlying persecutory delusions with religious content and command auditory hallucinations. What this means is that for that person their reality is psychotically based. Dr Pascu then said:[117]
So whatever action they might take based on that defective reasoning, that psychotically based reality, may lead to the incident. If a person – so – so that's why in my opinion, Mr Quartermaine was not deprived of the capacity so he – he knew what he was doing, but the reasoning behind it, for him it seemed very normal to do that because if he didn't do that his family might be killed. Experiencing a combination of command auditory hallucinations, persecutory delusions and intense fear or an emotional state we call – we call as the threat control override symptoms which in forensic psychiatry mean a significantly increased risk of violence and I believe in Mr Quartermaine we see the combination of persecutory delusions, command auditory hallucinations to hurt his uncle and the increased emotional rage, if I can call it, due to the fear if he didn't do that his family might be killed. So that, to me, it's a significant risk of increased violence.
[117] ts 379 ‑ 380.
Dr Pascu said that a person who is experiencing this level of psychosis may still be able to respond to directions given by police officers.[118]
[118] ts 380.
In regard to the fact that the accused also had high levels of THC, Dr Pascu said that usually cannabis causes increased persecutory beliefs, that is, paranoia. She said that patients with cannabis intoxication may present with increased paranoia, a sense of hypersensitivity, but certainly not the degree of violence that would be seen with methylamphetamine intoxication. Thus, in her view, the cannabis may have contributed to increase the degree of paranoia experienced by the accused, though it would not have made him more likely to be violent.[119]
[119] ts 380 ‑ 381.
Dr Pascu was asked about the statements made by the accused on entering the house including his statement 'I have to kill Uncle Willy'. She said that this fitted the diagnosis because it suggests that the accused was experiencing psychotic symptoms, in particular that the devil's voice was telling him he had to do what he did in order to protect his family. I then asked Dr Pascu the following questions:[120]
[I]n his psychotically based reality, is it your opinion that he could have attacked his uncle with the intention of killing him?---I believe so because, in his reality, it was either his family would be killed if he didn't kill his uncle, yes. … But the voices – my understanding was that the devil was commanding him to kill his uncle.
Right. So as a corollary to that, what is your opinion as to whether the intoxication deprived him of the ability of doing an act of violence with the purpose of causing the death of another?---The intoxication and the psychosis due to the intoxication I think, in my opinion deprived him of the capacity to know he shouldn't do the act.
…
That's actually a different question to the one that I asked you. It's not so much whether he was conscious of the wrongfulness of what he was doing?---Yes.
But whether it deprived him of the ability of doing it with the purpose of causing the death of another?---I believe that his purpose was to hurt his uncle and that was based on his psychosis. That if he didn't do that, his family would be hurt. But he – in fact, based on his psychotic reality, he wanted to hurt his uncle to protect his family. So the action of hurting the uncle was in response to the psychosis to the psychotic reality but he knew what he was doing within his reality.
[120] ts 385 ‑ 386.
Defence counsel then asked whether the accused was capable of forming an intention to kill and Dr Pascu answered as follows:[121]
Now, intent, as I keep saying all the time, is not a psychiatric term. It's a legal term. … So the way psychiatrists look at that is whether a person is deprived of the capacity to form an intention to do anything. In my opinion, given the fact that – if I look at the three links of the insanity defence, in my opinion, he was clearly deprived of the capacity to know he shouldn't do the act. And in my opinion, given the levels of intoxication and psychosis, I believe that he was – his capacity to control his actions was severely impaired. And he might have been deprived of that capacity as well but that linkage is quite difficult to assess. In my view, is, if a person is experiencing command auditory hallucinations to do an act, it – to me, it suggests that the capacity to control the action is likely deprived of but definitely he's impaired. Now, if a person is deprived of the capacity to know that they shouldn't be doing an act and likely deprived of the capacity to control their actions, I would see that as that person didn't have the capacity to make – to do anything really to – sorry. In my view, that person would have – would be deprived of the capacity to form an intention to do an act.
Thank you. So just in layman's terms and please correct me if I'm wrong on this, your view is that, first of all, Mr Quartermaine was deprived of the capacity to know that what he was doing was wrong. Is that correct?---Yes.
And, secondly, that Mr Quartermaine may have been deprived of the capacity to resist the urge to do what he did?---Yes.
In other words, he wasn't able to exercise his will to stop himself from doing what he did?---Yes
[121] ts 386.
In cross-examination Dr Pascu accepted that whilst the accused said he did not remember the incident he had provided details as to what he was thinking and what he said to others that were consistent with him having some memory of what occurred. She also agreed that the accused's actions were purposeful, but said that this was in the context of his psychosis. She said:[122]
I think they were purposeful, because the voices were commanding him to kill him. Otherwise, his family will be killed. So again, it's the reasoning behind the action that I believe was a – it was not right. So his action in his world was justified, because his life and his family's life were at threat.
[122] ts 412, 422.
Towards the end of her cross‑examination Dr Pascu was asked:[123]
So, Dr Pascu, you're of the view obviously that Gregory Quartermaine was affected by methamphetamine; correct?---Yes, he was, in my opinion, yes, intoxicated, yes.
And that intoxication resulted in a psychosis; correct?---Yes.
And that psychosis impaired his ability to be able to form intent; you would agree?---I believe that the psychosis deprived him of the capacity to know that he shouldn't be doing what he was doing, and also I believe that the psychosis impaired, possibly deprived him of the capacity to know not – sorry, to control his actions, and in my view, if we go to the legal concept of intent, the way I would translate the psychiatric concepts of capacity, I would say that if you ask me if he had the intent to do any – any of this, I would say I would doubt that, and that would be because of his impaired mental state because of psychosis and impaired judgment at the time.
But isn't it possible that he still could have had the ability to be able to form an intent and then act it out, even though it was done in the psychosis?---Well, I don't – I don't believe so.
But you would agree that he has got clearly prior form to be in a psychotic or psychosis state and not attack anybody; correct?---Yes, thankfully, and I would say it could be luck, or it could have been the degree of psychosis, given the amount of substances that he had (indistinct) taken (indistinct) other days. We don't know. It could be purely luck.
Or could it be also because of his awareness of his disposition to go through the psychosis that he is able to refrain from acting out on the violence?---And – and I think – I think that even on 4 August he – he tried to do what he knew worked before, which was go to his auntie and pray. He tried to do that, but in this instance due to, I – I believe, the intensity of the psychosis, he wasn't able to control his actions at the time. So despite going through the motions of asking for help, that didn't work.
[123] ts 435 ‑ 436.
Dr Pascu agreed that the 2015 and 2018 episodes were, like the 2019 incident, acute psychotic episodes resulting from methylamphetamine use. Each of those previous episodes had also included command auditory hallucinations to kill or hurt other people. However on those previous occasions the accused did not act on those commands but rather took himself, or was taken to, hospital. Dr Pascu agreed that this suggested that on those previous occasions the accused had the capacity to know that what he was being commanded to do was wrong and that he had the capacity to control; that is to choose not to do those things.[124]
[124] ts 437.
When asked what was qualitatively different about the 2019 incident that results in a conclusion that the accused did not have the capacity to know that what he was doing was wrong and that his capacity to control his actions was significantly impaired, Dr Pascu said that the severity of the psychotic symptoms in 2019 was more severe and that there was evidence of cannabis intoxication in addition to significant methylamphetamine intoxication. It was put to Dr Pascu that it may be possible that, like in 2015 and 2018, the accused did have the relevant capacities but that he chose on this occasion to comply with the command auditory hallucinations, rather than resist as he had done before. She agreed that that was always a possibility, but it was also possible that the intensity was more severe leading to inability to control himself. She said:[125]
[T]he fact that twice before he managed to refrain and he used his only coping mechanism which he had which was trying to pray and use the Bible and go to his aunty. This time he seemed that he went through the motions. He tried the Bible, tried to talk to his partner, tried the bigger Bible with Aunty May and that didn't help. So I – I don't have evidence to say that this time on purpose he just ignored the fact that what he was doing was wrong.
The fact that he did those things: go to see Aunty May, trying to pray on the Bible, how is that consistent with him not knowing that what he did was wrong?---I believe that with the escalation of his psychosis at the time that he tried to do that the intensity – I think that he was in the process of the crescendo of his psychotic symptoms and he tried to intervene the way that he did in the past and because, in my view, the intensity was too high that intervention didn't work. So, on the contrary, I think that he really tried. He – at the beginnings of the psychosis he was more likely to be aware that he shouldn't be doing what he was doing, but as it intensified and the command – when the command auditory hallucinations are in place, that's when, in my view, a person is more likely to be deprived of the capacity to control their actions. It's a very compelling voice telling him to do an act. So early in the process he was more likely to know that he shouldn't be doing what he was doing, but I believe that it just got more and more intense and lost that ability to control himself.
[125] ts 437 ‑ 439.
I accept the evidence of Dr Pascu regarding the likelihood that the accused was experiencing a drug induced psychosis at the time of the killing. I also accept her opinion as to the likely intensity of that psychotic state and that the accused experienced delusions, including auditory command hallucinations. Although Dr Pascu relied on unconfirmed information from the accused in coming to her opinion, she stated that she was able to put that information aside and that doing so did not affect her conclusions. I have no reason not to accept her evidence in this regard and thus I have no reason to reduce the weight I give to her opinions. As to what Dr Pascu said regarding whether the accused was capable of forming an intent to kill, her conclusions were based on a psychiatric construct of intent rather than the concept of specific intent as used in s 28(3) of the Criminal Code. This was something that Dr Pascu readily conceded, and I do not, therefore, consider that her view necessarily leads to a conclusion that the accused could not, and did not, have an intent to kill.
Factual findings
The accused was a regular user of methylamphetamine in 2019, and had used that drug for several years. On at least two previous occasions he experienced psychotic episodes when intoxicated with the drug. On those occasions he experienced thoughts of violence towards others and auditory command hallucinations. However, he did not comply with the commands, but sought help from others and attended a hospital. The possibility that methylamphetamine use could cause such effects and the need to seek help to deal with them was well known to the accused.
The evidence of Brendan Ugle and Gregory Pickett, which I accept, is that the accused injected methylamphetamine on two occasions on the evening of 3 August 2019. On the first occasion the amount used by the accused was between 0.1 and 0.15 g. On the second occasion the amount used is unclear as Mr Pickett only referred to 20 units (which would appear to be a reference to the amount of liquid solution), but the likelihood is that the amount used was 0.1 g. This use of drugs, at the times referred to, is consistent with the toxicology results from the blood sample taken from the accused after his arrest.
I also accept that later in the evening the accused smoked an unknown quantity of cannabis. That use is also consistent with the toxicology results.
There can be no doubt that the accused was intoxicated with methylamphetamine and cannabis at the time that he killed the deceased. The toxicology results are consistent with a medium to severe level of intoxication with methylamphetamine at the time of the killing, bearing in mind that the accused was a regular user of the drug. The cannabis was at a reasonably high level when tested and it is therefore likely that the accused was also intoxicated with this drug at the relevant time. The effects of the drugs are not the same and those effects may differ from person to person.
The effects of intoxication with methylamphetamine include increased energy and an increased tendency to extreme violence. In some cases of acute intoxication psychotic delusions can be experienced. The observations of those who saw the accused on the night of the incident and the police officers who saw him very soon afterwards are consistent with the accused experiencing psychotic delusions. The police interview and mental health assessment also support that conclusion. I find that the accused was in a psychotic state at the time of the killing and that his symptoms included auditory command hallucinations that the devil was telling him that he had to kill the deceased. Cannabis intoxication is likely to have added to the degree of paranoia experienced by the accused, though it would not have increased his tendency to violence.
The fact that the psychotic symptoms resolved reasonably quickly and that this is consistent with prior incidents in 2015 and 2018, leads to the conclusion that these symptoms were the result of acute methylamphetamine intoxication, rather than being a more long-lasting delusional disorder. There is also no evidence of any underlying mental illness. I therefore find that the psychotic symptoms experienced by the accused were caused by voluntary use of illicit drugs. The accused intentionally caused himself to become intoxicated.
The accused had some awareness at the time of the effect that the drugs were having on him. This is evident from his warning to his mother not to come outside when he first went to her house and from his attempt to obtain some help by asking for a bible and praying with Lillian Penny (Aunty May). Resort to prayer and the bible is also consistent with previous episodes. At least at this stage of intoxication the accused was aware that what he believed he was being commanded to do was wrong and should be resisted.
After seeking help from Aunty May and returning to his house the accused armed himself with a machete, walked to his mother's house, asked to be let in, asked where the deceased was and stated that he had to kill the deceased. Others were present in the house, including his mother, and though he pushed her when she tried to stop him, it is clear that his objective was to find and kill the deceased. These actions are relevant in determining his state of mind at the time. The actions of the accused were deliberate, focussed and involved a course of conduct. I accept the evidence of Professor Joyce that this course of conduct was willed.
The nature and number of the injuries inflicted support a conclusion that the purpose of the accused was to cause the death of the deceased. However, it is likely that the attack continued after the deceased was dead and the extraordinary brutality of the injuries is consistent with the accused being intoxicated with methylamphetamine. There was no indication of any previous significant animosity between the accused and the deceased. The accused had no apparent motive for wanting to kill the deceased. In these circumstances, the extent and nature of the injuries inflicted also strongly support a conclusion that the accused was in a psychotic state at the time. It is unlikely that he would have killed the deceased were it not for his intoxication.
I accept the evidence of Professor Joyce and Dr Pascu that the nature of the intoxication was that it did not affect the ability of the accused to know what he was doing. It is clear from the description of his actions by those present on the night and from the statements he made, in particular 'I have to kill Uncle Willy', that the accused was aware of what he was doing and that he had the purpose of causing the death of the deceased.
There is some evidence that might suggest that the awareness of the accused that he was attacking the deceased was impaired. This includes statements made after the event to the police that the faces of everyone were the same and that the devil had 'jumped in' to the deceased. These statements were not clarified or explained by any admissible sworn evidence. In any event the possibility that the awareness of the accused was impaired is not consistent with other evidence which clearly supports a conclusion that the accused was aware at the time of the attack that his victim was the deceased. That evidence includes asking for the deceased on arrival at the house, saying that he had to kill 'Uncle Willy', stating to the first-responding police that he had 'cut that cunt up good', 'scalped that cunt' and 'cut his head off', saying that he would do the same to others (including his family and the police), acknowledging the wrongfulness of what he had done and expressing an expectation of (and desire for) punishment for doing it.
Conclusions
The essential issue in this case is not whether or not the accused had an intent to kill but whether such an intent is a real one for the purposes of the law when it is based on a delusional belief system. I accept that the delusions and auditory hallucinations experienced by the accused were an aspect of his intoxication. The issue is what effect his psychotic state had on his ability to form an intent to cause a specific result.
Professor Joyce referred to possible impairment of the judgment as to the moral rectitude of the actions. Dr Pascu was more definite in this regard and concluded that the accused did not have the capacity to know that his actions were wrong. She also said that his ability to control his actions may have been impaired. These conclusions were based on the accused being in a delusional state in which he believed that he was being commanded to kill the deceased and that there would be adverse consequences for himself and his family if he did not comply. Dr Pascu concluded that absent a capacity to know that the action of killing was wrong the accused could not have an intent to kill.
The capacities referenced by Dr Pascu are found in s 27 of the Criminal Code and are relevant in determining whether a person is of unsound mind and, therefore, not criminally responsible for his actions. Where, however, unsoundness of mind is caused by intentional intoxication as a result of voluntary use of drugs an accused person cannot avail himself of an insanity defence. The policy of the law is that a person who voluntarily takes drugs and has thereby intentionally caused himself to become intoxicated should be held responsible for his actions, even if the drugs result in loss of the capacities that would otherwise be the foundation of an insanity defence.
Voluntary intoxication is only relevant to the issue of whether an accused person had a specific intent. Not all offences involve an intent to cause a specific result. Many offences involve no specific intent at all. An issue that may arise in respect of such offences is whether the act was willed. But whether an act is willed or not is a different question to whether there a specific intent. Will is concerned with the voluntariness of an action, whereas specific intent is concerned with the purpose of the action. In the common law a similar distinction is made between basic intent and specific intent, intoxication being only relevant to the latter.[126]
[126] DPP v Majewski [1977] AC 443.
The question of whether the accused had an intent to kill is a question of fact to be determined having regard to all of the relevant circumstances, including that the accused was intoxicated at the time. Reference to the capacities in s 27 does not determine this question, though a conclusion that an accused person lacked such a capacity may indicate the nature and degree of intoxication. The nature and degree of the intoxication is important because it will show the type of impairment the accused had. Intoxication does not necessarily deprive a person of the ability to form an intent to cause a specific result. The fact that a person may do things whilst intoxicated that he would not do when sober does not necessarily mean that he does not intend to do them, or to do them with a specified purpose.
The reason why intoxication is relevant to whether a person had an intent to cause a specified result is that it may have the effect of impairing judgment and the ability to form a clear purpose. Some delusions caused by intoxication may be of such a nature as to deprive the accused person of the necessary specific intent, such as a delusion that the victim is not human. In order to intend to kill the accused must be aware of what he is doing, that he is doing it to a person and that his purpose is to cause the death of that person. A person intends a result if he means to bring it about.
A delusional belief that killing is necessary does not mean that the death of the other person is unintended. To the contrary, the death in such a case is intended even though based on a false belief as to the necessity to kill. It was suggested by defence counsel in closing address that an intent must be based on a reasoning process founded on rational beliefs. That is, that an intent to kill based on delusional beliefs is not an intent at all. This cannot be correct as a general statement; it must depend on the nature of the delusions. A drunken person may have an irrational belief that it is necessary to kill another due to duress or extraordinary emergency, but such a belief would not mean that their intent to kill was not real.
I note that s 27(2) of the Criminal Code provides that where a person is affected by delusions as to a specific matter but is not otherwise of unsound mind then they are only criminally responsible to the same extent as if those delusions were real. This provision is also excluded in the case of voluntary intoxication by s 28(2). The effect of the defence submissions is that the accused should not be liable for his intentional killing because he had a deluded belief that he was acting under duress or extraordinary emergency (see s 32 and s 25 of the Criminal Code). If that submission was accepted it would produce a result that is inconsistent with s 28(2), the purpose of which is to exclude exculpatory delusions caused by voluntary intoxication.
I accept that the accused had an irrational, delusional, belief that he had to kill the deceased. From his psychotic perspective the killing was not wrong, but it was deliberate and intentional. I draw that conclusion from his actions and his statement immediately before the attack that he had to kill the deceased. In my view the only reasonable conclusion is that the accused not only had the capacity to form an intent to kill, he did in fact have that intent. In drawing that conclusion I have taken into account that in drawing inferences from the words and actions of an intoxicated person account needs to be taken of the fact that intoxicated people do not always behave in the same way as sober people. However, the accused’s words and actions were clear, unequivocal and self-evidently purposeful. I am satisfied beyond reasonable doubt that when the accused attacked the deceased with the machete on the night of 3 ‑ 4 August 2019 he intended to kill him.
I appreciate that an intent to kill formed by a person in such a delusional state, albeit self-induced, does not equate with an intent formed by a sober person who executes a clear-eyed plan to kill.[127] However, that is a matter properly to be raised in sentencing. The effect of the submissions advanced by the defence was to suggest that some form of diminished responsibility be incorporated into the law of homicide.[128] That is not the law in this State and the Law Reform Commission in its Review of the Law of Homicide recommended that such a partial defence not be introduced.[129] The rationale for that recommendation was that factual circumstances that diminished a person's culpability for homicide were appropriately taken into account in sentencing, not by reducing offences that should properly be stigmatised as murder to manslaughter.
[127] Zwerus v The State of Western Australia [2015] WASCA 174.
[128] Though in those jurisdictions where this partial defence exists it does not extend to impairment caused by voluntary intoxication.
[129] Review of the Law of Homicide, Final Report, Law Reform Commission of Western Australia, Project 97, September 2007, p 259.
Verdict
The accused is guilty of murder.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honourable Justice Hall10 DECEMBER 2020
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