The State of Western Australia v Siddique [No 2] - [2016] WASC 358

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- SIDDIQUE [No 2] [2016] WASC 358

CORAM: JENKINS J

HEARD: 20-28 OCTOBER 2016

DELIVERED : 7 NOVEMBER 2016

FILE NO/S: INS 326 of 2015

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
NOOR MOHAMAD SIDDIQUE
Defence

Catchwords:

Criminal law - Trial by judge alone - Murder - Insanity - Whether accused was mentally impaired - Whether accused's mental impairment deprived him of a relevant capacity

Legislation:

Criminal Code (WA), s 1, s 26, s 27, s 28
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 21
Criminal Procedure Act 2004 (WA), s 118, s 120
Evidence Act 1906 (WA), s 32

Result:

Accused acquitted of murder on account of unsoundness of mind
Custody order made

Category: B

Representation:

Counsel:

Prosecution : Mr J Mactaggart
Defence: Mr M T Trowell QC

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Defence: Mark Andrews Legal

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

Evans v The State of Western Australia [2010] WASCA 34
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Porter [1933] HCA 1; (1933) 55 CLR 182
Radford (1985) 20 A Crim R 388
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 367
The State of Western Australia v Brown [No 3] [2013] WASC 349
The State of Western Australia v Strabach [No 2] [2012] WASC 227
Ward [2000] WASCA 413; (2000) 118 A Crim R 78

JENKINS J: The accused is charged on indictment that on 26 May 2015, at South Perth, he murdered Cedric Lionel Rowe (the deceased). The accused applied for a trial by judge alone and on 21 April 2016 Hall J ordered that, pursuant to the Criminal Procedure Act 2004 (WA) s 118, the accused be tried by judge alone.
On 20 October 2016, at the commencement of his trial before me, the accused pleaded not guilty on account of unsoundness of mind.
These are my reasons for finding that the accused is not guilty of the charge of murder on account of unsoundness of mind. In accordance with the Criminal Procedure Act s 113(1), I enter a special verdict in that term. In accordance with the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 21, I make a custody order in respect of the accused.

Issues

Pursuant to the Evidence Act 1906 (WA) s 32, the accused admits that:
(1)late afternoon on Tuesday, 26 May 2015 he was at his home unit at W17, 9 Parker Street, South Perth, together with [the deceased];
(2)he deliberately stabbed the deceased with a knife multiple times to his head, trunk and left leg; and
(3)the injuries inflicted by him caused the death of the deceased.
Thus, by virtue of the accused's plea, I must decide whether the accused has established on the balance of probabilities that he is not criminally responsible for killing the deceased on account of unsoundness of mind. This issue requires me to determine each of the following matters:
(1)at the time the accused killed the deceased, was he mentally impaired?
(2)if the accused was mentally impaired, did his mental impairment deprive him of the capacity to understand what he was doing when he killed the deceased or the capacity to control his actions which killed the deceased or the capacity to know that he ought not to do the acts which caused the deceased's death?
The accused does not dispute that he had the capacity to understand what he was doing. Rather, he says that I should be satisfied on the balance of probabilities that he lacked one or both of the latter mentioned capacities.
No defence other than unsoundness of mind arises on the evidence.
If I had found that the accused had not established on the balance of probabilities that he was of unsound mind at the time he killed the deceased, I would have had to determine whether he had the requisite intention for murder at the time he killed the deceased.

The evidence

The State called the following witnesses:
(1)Chelsea Lee Martin;
(2)Adam Michael Fredericks;
(3)Lee Anthony Rule;
(4)Daniel Matthew Moss;
(5)Craig Andrew Clapham.
(6)Francois Jacobus Oosthuizen;
(7)Rebecca Zoe Kitis; and
(8)Matthew James Atkinson;
The State also tendered some documents such as the forensic report by Ross George Allen, a plan of the accused's home unit where the killing occurred, photographs, the knife used to kill the deceased and diagrams depicting the location of wounds on the deceased's body.
The accused elected not to give evidence personally. He called two psychiatrists, Dr Natalia Bilyk and Dr Salvatore Febbo, in his defence.
In rebuttal, the State called Dr Daniel De Klerk, also a psychiatrist.
I will deal with the question of reliance on the expert witnesses later in these reasons. In respect of the lay non‑police witnesses, I was most impressed by the credibility and reliability of Mr Fredericks. He did his best to remember fairly and impartially the events about which he gave evidence. Ms Kitis was also a reliable witness although I take into account when assessing the weight to place on her evidence that she clearly favoured the accused and appeared to want him to be portrayed in the best light possible. Mr Rule probably gave his evidence as best he could but he did not strike me as particularly intelligent and neither did he appear to have an excellent recall of the events about which he gave evidence.

General legal principles

The judgment in a trial by judge alone must include the principles of law that the judge has applied and the findings of fact on which the judge has relied: Criminal Procedure Act s 120(2).
The principles of law which I apply are as follows.
The accused is presumed to be innocent of any charge open on the indictment. Putting to one side the issues raised by the accused's plea of not guilty on account of unsoundness of mind, the State has the onus of proving the accused's guilt. For the State to discharge that onus, it is required to prove beyond reasonable doubt that the accused is guilty of murder or an alternative charge open on the indictment. The only alternative charge open on the evidence is manslaughter. The State bears the onus of proving each element of either charge to the standard of beyond reasonable doubt.
If it is necessary to draw inferences from the evidence, I may only draw an inference against the accused if it is the only reasonable inference to draw from the evidence. If there is an alternative conclusion open within reason, I must not draw the inference necessary to prove an element of an offence or the inference of guilt.
I must decide my verdict based on the evidence which has been produced in the trial. I must assess that evidence dispassionately. I must not decide the case based on prejudice against any person or sympathy towards any person. I must not guess or speculate about matters which are not in evidence.
Given that both parties agree that on 26 May 2015 the accused was suffering from a mental illness at the time he killed the deceased, I warn myself that it is dangerous to assess his actions and test his capacity to control his actions and know that he ought not to kill the deceased by the standards of ordinary people without such a mental illness.
Three of the witnesses who gave evidence are forensic psychiatrists and are expert witnesses. Dr Daniel Moss, forensic pathologist and Dr Francois Oosthuizen, chemist, are also expert witnesses. The evidence of Dr Moss and Dr Oosthuizen is not disputed by the accused. The evidence of the psychiatrists is, in some respects, disputed by the party which did not call that expert witness.
Neither party suggests that a psychiatrist called by the other party is not qualified, incompetent or insufficiently experienced to give their opinion. Neither is it suggested that the expert opinions are not honestly held or conscientiously formed. However, each party submits that I should rely on the opinion of a psychiatrist called by it or him, rather than a psychiatrist called by the other party.
I may reject expert evidence if there is other evidence to support my findings or if I conclude that the expert's opinion is unreliable. Nevertheless, I am not entitled to disregard expert evidence capriciously. If there are no facts and no circumstances which, in my view, throw doubt on that evidence, I must accept it.
In the areas where there is disagreement between the psychiatrists, it is for me to decide whose opinion I accept in whole or in part. The resolution of areas of conflict may depend upon which party has the onus of proof in relation to the issue in dispute. It may also depend on my decision as to whether the facts upon which an opinion is based accord with the facts as I find them to be and whether I conclude that steps of reasoning in the formation of an opinion have been soundly taken.
The accused did not give evidence in this case. It was his right not to give evidence. I must not assume that he is guilty because he did not give evidence, and his decision not to give evidence may not be used against him.
The Evidence Act s 32 provides that an accused person may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence. Thus, in respect of the admissions made by the accused pursuant to the Evidence Act s 32 I may find those facts without evidence being called to prove them. However, I am not bound to find those facts.

Legal principles relating to the admissibility of evidence of the accused's statements made out of court

There is an issue in this case as to the use and relevance of statements made by the accused out of court.
In respect of statements made by the accused on or before 26 May 2015, generally and as to his state of mind and his beliefs, there is no dispute that such statements may be accepted by me as proof of his state of mind and beliefs at the times he made those statements, and in the same way as I can take into account his actions.
Mr Fredericks and Mr Rule, the witnesses who saw the accused on 27 May 2015 after the deceased had been killed but before the accused was arrested, did not give evidence that the accused said anything about his state of mind, beliefs or emotions at the time of or at any time connected with the time of the killing. Their evidence of what the accused said on 27 May 2015 can be taken into account by me in the same way as I can take into account his actions.
After his arrest on 27 May 2015, the accused was interviewed by police in accordance with the requirements for the interviewing of suspects contained in the Criminal Procedure Act 2016 (WA).
The audio visual recording of the interview between the accused and the police (EROI) was admitted, without objection, into evidence. It is admissible to prove the facts stated in it. It is admissible because it contains admissions by the accused as to his involvement in the death of the deceased. Now that it is in evidence I am entitled to use all of it as evidence either for or against the accused. It is open for me to conclude as a matter of fact that the accused would not have made the admissions that the State rely on in the interview unless they were true. In deciding on the weight to give the confessional material, and indeed everything that the accused said in the interview, I should take into account the evidence about his mental state at that time, including the expert evidence relating to that issue. Ultimately, it is a matter of fact for me to decide whether the account given by the accused to the police is true and the weight to be given to the statements made by the accused in the interview.
Next there is evidence of what the accused said at his first psychiatric assessment on 29 May 2015 about his actions leading up to the killing of the deceased and his state of mind and his beliefs at that time.
Dr Corbu, who apparently spoke to the accused on 29 May 2015 and recorded what he said in the hospital notes, was not called to give evidence. Rather, Dr Bilyk read Dr Corbu's notes from the hospital records. The State did not object to Dr Bilyk giving evidence of the content of the hospital notes written by Dr Corbu. Consequently, I accept the evidence in that form.
That evidence is admissible to prove what the accused said at that time. That evidence may be relevant to the formation of a psychiatrist's opinion as it might indicate consistency or lack of consistency and other relevant matters. That is, it may be original material which assists a psychiatrist to determine the accused's state of mind at that time.
Given that the accused did not give evidence and so has not adopted what he told Dr Corbu as the truth, the evidence of what the accused said to Dr Corbu cannot be used to prove the truth of what he said unless it is admissible as an exception to the hearsay rule.
The State did not object to the admissibility of this evidence to prove the truth of what was said to Dr Corbu. This appears to have been on the basis of the approval in Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 of the following statement in Wills on Evidence (3^rd ed, 1938) 209:
Whenever there is an issue as to some person's state of health at a particular time the statements of such person at that time or soon afterwards with regard to his bodily feelings and symptoms are admissible in evidence. This medium of proof does not appear, like most of those which are known as Declarations, to possess any special sanction of credibility; like declarations accompanying acts it would seem to have been admitted on the ground of necessity and convenience (647).
During the course of the trial, I expressed the tentative view that this exception to the hearsay rule would cover what the accused said when he was admitted to hospital after his arrest. On closer examination of the authorities, I am less convinced that this is the case. The requirement for the statements to be made 'soon afterwards' appears to require greater contemporaneity with the time in issue than exists in this case. Although, I see no reason why the statement from Wills on Evidence should not apply equally to a person's statements with regard to his or her mental health as it does to his or her bodily feelings and symptoms.
Given the way the parties presented their cases I am prepared to receive the evidence of what the accused said to Dr Corbu to prove the truth of the statements contained in it concerning the accused's state of mind and beliefs. However, in considering the weight to be given to that evidence I will take into account that it is an account given some three days after the killing, which is a matter which would ordinarily reduce its reliability. Further, there are matters related in it which are omitted from or inconsistent with material contained in the EROI. I will also take into account that, as Dr Bilyk says, a psychiatrist has experience and training in asking questions which are designed to illicit psychiatric symptoms. Whereas, police officers may not ask the questions which will illicit that type of material.
Next, there is a dispute between the parties as to whether I can rely upon what the accused said to Dr Bilyk on and after 3 June 2015 to prove the truth of what was stated by him. To the extent that the material relates to the accused's account of what occurred and what he was feeling at and around the time he killed the deceased, it is not admissible to prove the truth of what is contained in the statements because there is no relevant exception to the hearsay rule which would make the material admissible.
Neither party contended that what the accused said to Dr Febbo and Dr De Klerk some months after the killing when the doctors interviewed the accused for the preparation of reports regarding the defence of insanity was admissible to prove what occurred at the time at or around the killing or to prove directly the accused's state of mind and beliefs at that time.

Elements of the offence of murder

Before I may find the accused guilty of murder, I must be satisfied that the State has proved each of the following elements of the offence to the standard of beyond reasonable doubt:
(1)that the accused killed the deceased;
(2)that the killing was unlawful; and
(3)that the accused intended to kill the deceased or cause him a bodily injury of such a nature as to endanger, or be likely to endanger, his life.
The accused admits that he killed the deceased by deliberately stabbing him multiple times. As the defence of unsoundness of mind has been successful, I am not required to consider the third element of murder: Ward [2000] WASCA 413; (2000) 118 A Crim R 78.

The law of insanity

Every person is presumed to be of sound mind and to have been of sound mind at any time which is in issue, until the contrary is proved: Criminal Code (WA) s 26. The accused has the burden of proving that he was not of sound mind at the time he killed the deceased. The accused must prove that he was not of sound mind on the balance of probabilities: R v Porter [1933] HCA 1; (1933) 55 CLR 182.
Whether the accused proves that he was not of sound mind depends on the application of the Criminal Code s 27, which states:
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.
The time I must consider is the time when the accused stabbed the deceased so as to cause his death.
The phrase 'mental impairment' is defined in the Criminal Code s 1 to mean 'intellectual disability, mental illness, brain damage or senility'. The accused says that he had a mental illness at the time he killed the deceased. 'Mental illness' is defined in the Criminal Code s 1 to mean:
An underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.
The Shorter Oxford Dictionary defines 'pathological' to mean 'pertaining to or dealing with pathology'. In turn, the dictionary defines 'pathology' to mean either 'the science or study of disease; that department of medical science, or of physiology, which treats of the causes and nature of diseases, or abnormal bodily affections or conditions'. It is not easy to insert these definitions into the definition of mental illness. I conclude that the phrase 'an underlying pathological infirmity of the mind' refers to an underlying infirmity of the mind caused by disease or abnormal bodily affection or condition.
The definition of 'mental illness' reflects some of the comments made by King CJ in Radford (1985) 20 A Crim R 388, 396 in relation to the meaning of the expression 'disease of the mind' when it is used in relation to the common law of insanity. The then Chief Justice of the Supreme Court of South Australia said:
(1)'disease of the mind' is synonymous with 'mental illness';
(2)a temporary disorder or disturbance of an otherwise healthy mind caused by external factors is not properly regarded as a disease of the mind;
(3)major mental illness or psychoses such as schizophrenia are clearly diseases of the mind as are physical diseases, such as psychomotor epilepsy and arteriosclerosis, when they affect the soundness of the mental faculties;
(4)disease of the mind is to be distinguished from 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self‑control and impulsiveness'; and
(5)in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called ' "defect of reason" in the M'Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli'.

Section 27 was amended after the High Court's decision in R v Falconer [1990] HCA 49; (1990) 171 CLR 30. The amendments to the Criminal Code are consistent with King CJ's statement of principles in Radford.
What is a mental illness is a question of law for me, as the judge. Whether or not the facts disclose that the accused had a mental illness at the relevant time is a question of fact for me, as the decider of fact.
The accused's case is that due to his mental illness, at the time he killed the deceased he did not have the capacity to control his actions or the capacity to know that he ought not do the acts by which he killed the deceased.
The phrase 'deprive him ... of capacity to control his actions' is not further defined or elaborated on in the Criminal Code. In TheState of Western Australia v Strabach [No 2] [2012] WASC 227, Commissioner Sleight considered the meaning of the phrase and said:
What is meant by the expression 'the capacity to control her actions' is not defined in the Criminal Code. In the High Court decision of R v Falconer [1990] HCA 49; (1990) 171 CLR 30, Mason CJ, Brennan and McHugh JJ [13], and Deane and Dawson JJ [12] referred to an automatism due to an unsoundness of mind. An automatism is a state of mind in which a person's actions occur independently of his or her conscious will; that is, involuntarily. A classic example of an automatism often given is a person sleepwalking. However, the High Court in R v Falconer was dealing with the question of an automatism and in my opinion was not seeking to define the full meaning of the expression 'capacity to control' in s 27. Murray J in Western Australia v Hone [2007] WASC 64 [22] stated that the capacity to control meant the capacity to 'decide whether or not to perform the acts which caused' the offending behaviour.
I believe the words 'capacity to control' must be given their ordinary natural and everyday meaning. The Oxford dictionary defines 'control' as meaning 'the power of restraining, especially self‑restraint'. The loss of 'capacity to control' must be a significant impairment of a person's mental processes so as to lose the power or control of self-restraint. Whether there is a loss of such a capacity is a question of degree. It is clearly relevant in deciding whether a person has lost the power of self‑restraint (that is the capacity to control his or her actions) to take into account whether the person is suffering from delusional beliefs and thinking; and the extent to which the person is subject to auditory hallucinations [64] ‑ [65].
In The State of Western Australia v Brown [No 3] [2013] WASC 349 [44] I said:
The question as to whether the accused had capacity to control his actions requires the accused to prove, on the balance of probabilities, that he was unable to control the conduct comprising his act or acts which caused the death of the relevant victim. It is not sufficient for the accused to establish an inability to control his emotions which led him to form the decision to perform those acts. Rather, the accused is required to establish an inability to control his acts which caused death and he may do this if he can establish a lack of capacity to refrain from a willed action. Such an inability would exist if the accused 'had an uncontrollable impulse to carry out the actions which caused the fatal injuries' or if, although the relevant actions were willed, 'the mind of the accused was not able to control them': R v Cox [2006] SASC 188; R v Telford [2004] SASC 248; (2004) 89 SASR 352, 364 [113] ‑ [121].
The parties did not dispute the correctness of the above principles.
An incapacity to control actions is not an effect of a disease of the mind which the accused may prove in order to establish the common law defence of insanity pursuant to the M'Naghten rules. In Falconer, in the joint judgment of Mason CJ, Brennan and McHugh JJ, their Honours said:
The incapacities to which s 27 refers include the incapacity to control actions whereas the M'Naghten Rules speak only of such a defect of reason 'as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.' The explanation for the inclusion of the incapacity to control actions in s 27 is that it mirrors the provisions of s 23, as Sir Samuel Griffith explained in his notes to the Draft Code, (1897), 14:
'An act to involve criminal responsibility must be voluntary, as distinguished from involuntary [s. 23] - that is to say, it must be accompanied by volition. In order that an action may be accompanied by volition there must be in the first place perception, more or less accurate, of the facts, then a determination or choice of the action to be taken upon those facts, and finally the action. If the person in question is incapable from mental disorder of rightly perceiving the facts, he should be treated on the same footing as a man who in good faith misapprehends the facts [s. 24]. If he is for the same cause incapable of exercising the power of determination or choice, he should be treated on the same footing as a man who does an act independently of the exercise of his will [s. 23] (46 ‑ 47).'
As is noted in Colvin E, McKechnie J and O'Leary J, Criminal Law in Queensland and Western Australia - Cases and Commentary (7^th ed, 2014) 417 ‑ 418, the correctness of the interpretation above of the phrase 'so as to deprive him ... of capacity to control his actions' in s 27 as the insane mirror of sane involuntariness (then contained in s 23) appears to have been assumed by Deane and Dawson JJ in their joint judgment in Falconer. Their Honours said:
Where an accused's acts are alleged to be involuntary by reason of mental disease or natural mental infirmity, no distinction can be drawn between the defence of automatism - the absence of will accompanying the relevant acts of the accused - and the defence of insanity under s 27 of the Code. This is necessarily so because s 27 relieves a person of criminal responsibility for an act done in 'such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions ...'.
... Where the voluntariness of an accused's acts is to be determined by reference to a condition which, if it existed at all, must on the evidence have amounted to a state of mental disease or natural mental infirmity, the question whether the accused's acts were voluntary will be subsumed in the question whether the accused did in fact suffer from a state of insanity envisaged by the section such that it deprived him of the capacity to understand what he was doing or the capacity to control his actions. S 27 also applies where a person is by reason of mental disease or natural mental infirmity deprived of the capacity to know that he ought not to have acted as he did. That would seem to raise a question distinct from that of voluntariness (60).
Toohey J seems to have equated insane involuntary action with the second limb of s 27, and insane voluntary acts as the subject of the first and third limbs of s 27. His Honour said:
Of course, insanity is not confined to involuntary action; insanity may be established even if a person has acted voluntarily, hence the need for lack of 'capacity to understand what he is doing' or lack of 'capacity to know that he ought not to do the act or make the omission as components in s 27 (71).
Also in Falconer, Gaudron J said:
It is clear from the terms of s 27 of the Code - 'such a state of mental disease or natural mental infirmity as to deprive him ... of capacity to control his actions' - that the defence of insanity or unsoundness of mind encompasses involuntariness when it proceeds from a mental disease or natural mental infirmity (82).
Thus, whilst the words in the phrase 'so as to deprive him ... of capacity to control his actions' should be given their ordinary meanings, I agree with the learned authors in Criminal Law in Queensland and Western Australia that the judgments in Falconer are to the effect that the meaning of the phrase should be narrowly construed. That is, a lack of capacity to control actions in s 27 is the insane equivalent of sane involuntariness, and so denotes an incapacity to control actions, as opposed to something less than that, such as significantly impaired capacity to resist an impulse or an emotion.
The phrase 'so as to deprive him ... of capacity to know that he ought not do the act', is generally considered to be equivalent to the M'Naghten rules alternative that the accused was labouring under such a defect of reason as 'that he did not know that he was doing what was wrong'.
The leading authority on the meaning of this limb of s 27 is Evans v The State of Western Australia [2010] WASCA 34 in which the court applied common law principles. McLure P considered the common law principles and said that there is no suggestion of any material distinction between the common law and s 27 on this point. Relevantly, her Honour said:
The High Court in Stapleton elsewhere (367) identified the test as being whether at the time of the commission of the act the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act.
There is no suggestion of any material distinction between the common law and s 27 on this point. Thus the real issue for the jury in this case was whether the appellant had established on the balance of probabilities that at the time of the killing his mental impairment resulted in a complete incapacity to reason as to what is right or wrong according to ordinary standards. The term 'know' means 'understand', 'appreciate' or 'comprehend'. An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from understanding that he (or she) ought not do the act. Knowledge (short of understanding) that to kill is punishable by law does not prevent such a finding. Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct. Whether an act is right or wrong is determined by reference to an objective standard. The question is whether the appellant had a complete incapacity to reason as to what was, by that objective standard, right or wrong. In this case the appellant's subjective belief was relied upon by the experts to support the conclusion that he was in a psychotic state that prevented rational reasoning on right or wrong [30] ‑ [31].
Wheeler JA (Owen JA agreeing) also discussed the common law principles and then said:
The authority most directly on point in this context is Stapleton v The Queen (1952) 86 CLR 358. In that case, having regard to the state of the evidence, it seems unlikely that there would have been any practical difference in result whether the jury had been directed in terms of a capacity to understand that an act was wrong according to ordinary standards, or to understand that it was contrary to law...
However, the court made it clear that such a direction was erroneous (at 367 ‑ 368).
It is not easy to summarise the detailed discussion of authority in Stapleton in a way which is capable of being fashioned into an appropriate direction in every case of insanity. However, the principles extracted from that discussion appear to focus upon two issues. First, the ability to know that one 'ought not' to do an act or make an omission is a capacity to know that one 'ought not' to do it according to ordinary standards of right and wrong, rather than knowledge that the act is unlawful... The second principle is that the capacity which must be found to be lacking is not merely a capacity to appreciate, in some abstract sense, that others would view the act as wrong. Rather, it is a capacity of the particular accused either to discern the difference between moral good and evil, or to 'think rationally' of the reasons which would lead ordinary people to consider the act to be right or wrong.
... Although a direction as to whether the accused was capable of reasoning 'with some moderate degree of calmness' or, as it was put in Porter, with 'a moderate degree of sense and composure' is sanctioned by authority, it may in some cases, in my view, run a risk of confusing the jury. That is because these offences generally take place in circumstances in which the accused is, plainly, not composed and not calm. The relevant issue is not whether the accused is, in fact, at the particular time, reasoning calmly and rationally. The question is whether the accused's mental condition is such that the accused is incapable of thinking in a rational way [59] ‑ [61].
In Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 367, the High Court said:
For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. See Reg v Davis, Stephen J, R v Kay, Stephen J. In R v Porter, this was expressed by Dixon J as follows:‑ 'The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong'. (footnotes omitted)

The facts of the killing

I find the following facts. The deceased was an Aboriginal adult male, who weighed 73 kg. The accused and the deceased knew one another as former neighbours. I know of no other details of their true relationship, as opposed to the accused's deluded beliefs about it.
On 26 May 2015, the accused lived alone in a unit known as W17, 9 Parker Street, South Perth. The accused had only recently moved into the unit.
On 27 May 2015 at about 7.30 am, Mr Fredericks entered the accused's unit and saw the deceased's body on the kitchen floor. It was covered with a blanket.
It is likely that sometime during the afternoon or evening of Tuesday, 26 May 2015 the deceased went, at the accused's invitation, to the accused's unit in South Perth. There, they may have had a drink of beer.
I am satisfied beyond reasonable doubt that during the afternoon and/or evening of 26 May 2015, the accused stabbed the deceased repeatedly to his chest, back and leg with a large knife. The deceased died in the accused's unit as a result of the very serious injuries which the accused inflicted.
I am unable to find exactly when the accused attacked the deceased or when he died. This is because there is no evidence independent of the accused as to how the deceased came to be in the accused's unit or when the deceased was last seen alive. There is no evidence as to whether the wounds on the deceased were inflicted at the same time or over a period of time, there is no evidence as to the time of death and the evidence discloses a large time frame during which the accused could have been alone with the deceased and inflicted the fatal wounds.
There were 31 injuries to the deceased's skin surface but some of these included two cuts on the skin's surface and/or two underlying wound tracks. Further, some of the internal injuries were not ascribable to a specific skin wound.
Most of the injuries were to the left side of the deceased's neck, left ear, left shoulder and left flank. In addition to stab wounds in those areas there was a stab wound to the left upper chest. It was 4 cm in length on the skin surface. The wound track was front to back and slightly upwards. The wound severed ribs 3 and 4 and passed into the chest cavity. It is not possible to determine a precise depth of the wound other than to say it had penetrated at least 2½ cm into the lung. Significant force was required to cut through the ribs. This and other wounds which had penetrated the lung were potentially life threatening.
There was also a stab wound to the right side of the lower abdomen. It was 4 cm in length on the skin surface. The wound track went from the front of the body towards the back, slightly towards the mid‑line and slightly upwards. The stab wound almost completely severed the small bowel and there was an associated defect in the mesentery. The wound track continued through the abdominal cavity into the muscle on the back and transected the third lumbar vertebra. It was in the order of 19 cm in length. In the longer term, this wound by itself was potentially life threatening.
There was also a stab wound to the inner aspect of the left knee. It was 4.5 cm in length on the skin surface. The wound passed upwards and slightly from right to left. It was about 22 cm in depth and passed through muscle without causing any underlying vascular injury.
There were nine superficial cuts or relatively superficial stab wounds to the neck and flank. I will not detail these. The remaining significant injuries were as follows:
(1)a stab wound to the left side of the head which passed through the ear and into the skin of the scalp, basically transfixing the pinna of the ear to the scalp with the wound track continuing into the skull and superficially into the brain.
(2)a stab wound to the side of the neck which looked like an upturned V on the skin surface. Underlying it there were two separate wound tracks. One of the wound tracks went into the trapezius muscle on the back of the deceased's shoulder and then passed in front of the spinal column. As it did so, it cut off a small fragment of a cervical vertebra. From there it partially severed the external carotid artery. That injury was potentially life threatening.
(3)a stab wound to the left side of the neck which was probably two stab wounds. One was no more than 5 cm depth and the other was approximately 2½ cm deep.
(4)a stab wound to the left side of the neck which was 1.6 cm in length on the skin surface. The wound track passed towards the mid‑line and downwards. The wound passed into the soft tissues around the carotid artery and virtually completely transected the internal jugular vein. It would have caused significant bleeding and was potentially life threatening. It was approximately 9 cm deep.
(5)a stab wound which appeared to be two separate injuries to the lower side of the left neck and top of the shoulder region. The wound tracks extended into the region of the muscles around the cervical spine and they were approximately 6 ‑ 7 cm deep.
(6)a stab wound to the top of the left shoulder and lower neck regions. It was about 6 cm in length and it looked like there were two underlying wound tracks. The stab wounds did not penetrate significant structures.
(7)a stab wound to the left upper flank. It was 4.4 cm in length on the skin surface. The underlying wound track went from left to right and downwards. This wound communicated with the next wound which I describe and it was not possible to separate out which surface wound caused the internal injuries. The wound track entered the chest wall fat and then the chest wall between ribs 4 and 5. In doing so, it shaved off the top of rib 5. The wound went into the left upper lobe of the lung. It was in the order of 6 cm in depth. As with other wounds to the lung it was potentially life threatening.
(8)a stab wound on the left flank which was approximately 4.2 cm in length on the skin surface. The wound track entered the chest cavity by transecting ribs 6 and 7 on its way into the lung. Because it cut through the ribs it would involve significant force.
(9)a stab wound to the left flank, just below the level of the nipple. It was 4.2 cm in length on the skin surface. It communicated with the wound I next describe and so it was not possible to describe the actual wound track.
(10)a stab wound to the left side of the chest which was 4.9 cm in length on the skin surface. The wound track went through the chest wall and into the chest. In doing so it severed ribs 7 and 8.
(11)a stab wound to the left side of the chest which was approximately 4 cm in length on the skin surface. This wound communicated with the wound track of the next described wound. It entered the chest cavity by severing rib 8 and partially severing rib 7.
(12)a stab wound to the left side of the chest which was approximately 4.2 cm in length on the skin surface. The wound track scored ribs 6 and 7 and also transected the eighth rib. Although it ended up in the chest cavity it was a more superficial wound than the previously described wounds which penetrated the chest.
(13)a stab wound to the left flank which was about 3.4 cm in length on the skin surface. The wound track was going downwards and forwards from left to right. It severed rib 9 as it entered the chest cavity.
(14)a stab wound to the left flank which was approximately 4.7 cm in length on the skin surface. The wound passed into the chest cavity passing through ribs 9 and 10 as it did so. It superficially cut into both of those ribs. The wound track completely transected the colon. If not treated it would pose a significant risk of infection which could have been life threatening in the longer term.
(15)a stab wound to the left flank which was about 3.7 cm in length on the skin surface. The wound passed through into the chest cavity and as it did so it nicked rib 11. It caused a defect in the diaphragm.
(16)a stab wound to the left flank which was about 3 cm in length on the skin surface. The wound track severed rib 12.
(17)a stab wound to the left flank on the side of the abdomen which was about 3.8 cm in length on the skin surface. It entered the chest cavity between ribs 10 and 11 but did not cut them. It also put a hole in the diaphragm.
(18)a stab wound to the left side of the lower abdomen. The wound on the skin surface was irregularly shaped and was 5 cm x 2 cm on the skin surface. The wound track went into the abdominal cavity and was approximately 11 cm deep but it did not cause any underlying organ injury.
(19)a fairly gaping stab wound to the left side of the lower abdomen, overlying the pelvis. It was 4 cm x 1.6 cm on the skin surface. This wound track had some communication with the previously described wound and another superficial wound. The wound track penetrated the abdominal wall and had chipped the iliac crest.
The stab wounds caused at least 6 defects in the left side of the diaphragm, ranging from 2 cm ‑ 5.5 cm in length. Through one of these, the deceased's stomach had herniated into the chest cavity. The herniated stomach also had two defects in it. These injuries were not immediately life threatening but they required urgent medical attention.

The stab wounds also caused a defect in the pericardium which was 5 cm in length and a defect in the left ventricle of the heart. The latter defect crossed the whole of the width of the left ventricle and passed through into the septum, which is the muscle that separates the right and left sides of the heart. However, it did not go into the right ventricle. The wound track which caused that injury was probably in the order of 15 ‑ 20 cm in length. That wound was immediately life threatening and unlikely to be survived.
The stab wounds also caused a defect in the upper part of the left kidney.
Apart from the defects in the lungs which were attributable to specific stab wounds, there were several further defects in the lungs which Dr Moss could not ascribe to a specific skin wound. At least one of these wound tracks passed straight through the lung from one side to the other.
The accused used a hunting style knife to inflict all or most of the wounds. When the police searched the accused's unit on 27 May 2015, they found the weapon in a closed corner cupboard in the bathroom. The knife had the deceased's blood on it but I do not know whether he had attempted to clean it. The photographs of it in the cupboard do not appear to be as bloodied as I would expect given the severity of the wounds it inflicted and the amount of blood in the unit.
The knife used by the accused is a large and heavy clip point knife. It is about 34 cm long. The blade is curved with only one side sharpened. The blade is about 15 cm long but as it is curved it would be able to inflict a longer wound. At its widest point it is about 5 cm wide. Before the blade attaches to the hilt it has a blunt notched area which is 4 cm ‑ 5 cm in length. There is then a cross guard which is moulded on one side to form a thumb hole. Dr Moss said that the knife was capable of causing all the injuries seen on the deceased, although it is not clear to me how it could have caused wound 4 described above. The wound would appear to be too narrow on the skin surface to have been caused by the knife.
When interviewed by the police the accused said that he had bought the knife 'a week or two weeks ago' from a shop in Cannington.
Mr Fredericks said that the knife looked like a knife which the accused had shown him some time earlier. On a Saturday evening at about 7.30 pm ‑ 8.30 pm the accused helped Mr Fredericks move home. As Mr Fredericks was putting some bats into the back of the accused's car he said jokingly in respect to a tee‑ball bat that it was very light and it would do some damage. He said that the accused then produced a knife and said 'look at this, this is what you need'. Mr Fredericks did not see where the accused produced the knife from. Mr Fredericks did not recall when this incident had occurred but he acknowledged that his statement to the police said that it happened 'on the Saturday just gone'. That would indicate that the accused had the knife and was carrying it around with him on Saturday 23 May 2015. Although, it is not clear how this time frame fits in with the accused's attendance at hospital that same evening, which is an event which I describe later.

The accused's background and other facts

It is not in dispute that the accused was born overseas and moved to Australia with a sister and perhaps some other family members as refugees when he was 16. However, the difficulty in ascertaining the details of his past is highlighted by the fact that Dr Febbo records that the accused told him that he was born in Kabul, Afghanistan and that he moved to Pakistan when he was about 10 years old, whereas Dr De Klerk records that the accused was born in Pakistan and moved to Afghanistan when he was 8 years old. Whichever is the truth, I accept that the accused suffered trauma and witnessed violence as a child before he came to Australia.
The accused's date of birth is said to be 1 January 1987. Given that there is information that the accused's parents died in an accident when he was very young, it is possible the exact date of birth is unknown. I accept that he is now in his late 20's.
Shortly after arriving in Australia the accused met Rebecca Kitis. About three years later they commenced a relationship. At that time the accused lived in unit 23, 9 Carden Drive, Cannington. It seems that it was around this time that the accused met or became aware of the deceased, who lived nearby.
Soon after Ms Kitis and the accused commenced a relationship, the accused's brother was killed in Afghanistan. The accused flew to Afghanistan for his brother's funeral. Prior to the accused's brother being killed, the accused appeared to Ms Kitis to be a happy person. He was working two jobs as a security guard and a painter. Ms Kitis noticed that the accused's behaviour changed when he suffered trauma. She noticed that he was very distressed by the violent death of his brother and that he could not sleep at the time. The accused's mental state deteriorated.
About three years ago the accused's sister was diagnosed with a brain tumour. Ms Kitis noticed that the accused's behaviour then fluctuated. He would become upset, distressed and paranoid. The accused left the Carden Drive address because he felt that people were watching him and pursuing him. At one point he locked himself in the Carden Drive address for three days. He would not come out because he thought that people were after him and he was frightened and distressed. Ms Kitis said that sometimes the accused would simply say 'people are watching me' and sometimes he would say 'dark‑skinned people' were after him.
Around this time Ms Kitis and the accused were driving around. The accused was crying and upset. He was talking about his sister's illness. Ms Kitis became scared because the accused was having delusions and telling her that he could see people and he could hear things. He told Ms Kitis that he had a knife to protect himself.
Ms Kitis reported the incident to the police. The accused was arrested and placed in custody. On 4 July 2013 whilst the accused was in custody, he was examined by Dr Mark Hall, consultant forensic psychiatrist. This was as a result of the accused reporting to prison workers that 'a big crowd' both inside and outside the prison was following him all the time and that the crowd wanted to kill him. He had also said that people had kidnapped and raped his girlfriend. It is relevant to note that Ms Kitis has never been kidnapped and raped and neither has she ever made such an allegation. The accused said that he knew his beliefs were true because he had 'horrible dreams' and that he 'saw his girlfriend being raped in the ceiling of his cell'. Dr Hall's notes state that the accused thought he had a divine gift of prophecy through dreams. He had reported his belief that people who lived around his home were drug dealers who 'control everyone'. Dr Hall diagnosed schizophreniform psychosis and was of the opinion that the accused presented a risk to himself, through suicide ideation, and also to others.
Dr Hall prescribed Olanzapine, an anti‑psychotic medication, and commenced arrangements for the accused to be admitted to the Frankland Centre as an involuntary patient. Due to a bed being unavailable, the accused was not admitted to hospital. However, he was compliant with his medication and he was taken off the wait list for the Frankland Centre on 12 July 2013. On 27 August 2013 the accused reported that the auditory hallucinations had stopped. On 29 August 2013 he said that he wanted to cease his anti‑psychotic medication. When reviewed by Dr Hall on that date the accused said he no longer held the beliefs which had led to his offending. He also related the offending to methylamphetamine and cannabis use.
As a consequence, Dr Hall was of the opinion that the accused had a drug induced psychosis with resolution of symptoms but with incomplete insight. Dr Hall advised the accused to continue taking his medication for between 6 ‑ 12 months and to see his general practitioner after release from prison for monitoring of his mental state. Dr Hall recorded that there should be a 'low threshold for referral to Mirrabooka mental health service in the event of any signs of relapse'.
Apparently the prison records record that the accused stopped taking his anti‑psychotic medication on or about 22 September 2013. A mental health nurse review on 26 September 2013 stated that there were no psychotic signs and that the accused's mental state appeared stable. Dr De Klerk, who had access to the prison records, noted that the accused was released from prison on 14 October 2013 and that he was not taking any anti‑psychotic medication. Dr De Klerk said that the prison records do not indicate that any referral to a doctor or community based mental health service was completed on his release. However, Ms Kitis gave evidence that on his release, the accused said that he would be placed on the wait list at the Frankland Centre to receive medical help but that that did not occur. Whatever the true situation was, the upshot is that the accused did not receive any medication or psychiatric assistance until after his arrest on this charge.
After his release from prison, the accused stayed with a friend in Lansdale. In January 2014, he moved to an address in Nollamara.
In March 2015, the accused was working as a painter and employing others on a casual basis to work for him. In March 2015 he approached Mr Fredericks and his brother at a shopping centre in Nollamara. At the time they were wearing clothing which identified them as painters. He asked Mr Fredericks and his brother if they wanted work as painters because he had a lot of work. Mr Fredericks gave him his phone number. The accused contacted him a week later and offered him painting work. Mr Fredericks and his brother worked for the accused for about two weeks. After that, Mr Fredericks' brother ceased working for the accused but Mr Fredericks continued to do so. Mr Fredericks did not have a drivers licence and so the accused would pick him up and drop him off from work. The work was for about 2 ‑ 4 days per week.
Initially, the accused drove a white VZ Holden ute. He purchased another vehicle but then told Mr Fredericks that he had sold it to get money for the bond for the Parker Street unit.
When the accused picked up Mr Fredericks he would either drop him off at the job or stay for a short time and then leave. Initially Mr Fredericks noted that the accused was 'very bubbly, quite charismatic, quite talkative. He was always in a good mood'.
Mr Fredericks noticed a change in the accused's behaviour about three weeks before 27 May 2015. He said that he became quite agitated and paranoid.
In terms of paranoia he, the accused, would ask Mr Fredericks whether people came and asked about him, when he was not there. He also told him that his girlfriend had been kidnapped and raped by Aboriginals. He told Mr Fredericks that on the morning of 27 May 2015. He had not mentioned it before that date. However, approximately two weeks before 27 May 2015, the accused referred to Aboriginals derogatorily as 'black dogs'. Mr Fredericks said that prior to that, the accused had not spoken in those terms.
In addition to the incident involving the knife, there were some other incidents which were consistent with the accused's change in behaviour. On one occasion the accused demonstrated with the motion of shooting with a gun and said 'this is what I need'. On another occasion Mr Fredericks had referred to Aboriginals camping at Heirisson Island and the accused asked to be taken to that area.
The accused's change in behaviour was sudden as far as Mr Fredericks was concerned. He said that the accused became distant and negative. He was also paranoid and angry. He said that he was always pacing around, very agitated and not talking to Mr Fredericks. He said that he would not make sense, he would leave a job, come back, pick up Mr Fredericks and take him home in an agitated state. The behaviour got worse over time leading up to the death of the deceased. Mr Fredericks noted that the accused would go off on a tangent quite easily from a conversation, talk to himself a little bit and not make sense. The accused told Mr Fredericks that someone was following him and giving him bad luck. His paranoia was not always about Aboriginals but about people following him generally.
During the lead up to the death of the deceased, Mr Fredericks noted that the accused's bodily actions changed in that he gestured and waved his arms around more. However, he was capable of and did carry out everyday functions like driving and making phone calls.
It was during early May 2015 that the accused moved to the Parker Street unit. He told others that this was because there were fewer Aboriginals in South Perth.
On 19 May 2015, the accused went to visit Ms Kitis. He went to her front door and said 'I have to protect you'. She described him as 'ranting and raving'. He told her to shut up and not to talk. He told her that she was not going to her work place because people were going to get her. Ms Kitis told the accused to leave and he did so but he returned about five minutes later. He was driving quite quickly and revving the engine of his car. He said to her 'there are black people out there'. He told her to ring her workplace and say that she was not going to work.
The accused ordered Ms Kitis around and was aggressive. He insisted that Ms Kitis go shopping to buy furniture with him. She noted that this was a very sudden change of topic and plan. He insisted that she wear white clothing and told her that he did not want her wearing black because that was bad luck. She noted the accused's conversation 'flipping' from topic to topic.
Ms Kitis left her home and went to her neighbour's house to call the police. Eventually, the accused left Ms Kitis's home. When Ms Kitis returned to her home she noticed that her black clothing had been shredded and ripped. It had been placed in a pile in her kitchen. She also noted that in her bedroom the accused had placed her intact white coat hangers in a pile. There was also a pile of broken black coat hangers in her bedroom.
On 20 May 2015, the following day, Ms Kitis received multiple telephone calls from a blocked number. She believed these calls to be from the accused.
On Friday 22 May 2015 when Ms Kitis was driving home from work, she saw the accused driving behind her. He rang her and told her that he wanted to go and have something to eat with her. He told her to drive her car home, he would follow her and then they would go out together in his car. Ms Kitis told the accused that she did not want to go out but that if he wanted to go she would follow him to the eatery and meet him there. However, she intended to go home and in fact did that. The accused followed her and put his car behind hers in the garage. Ms Kitis went to her neighbour's home to avoid the accused. Her neighbour's adult son went outside and spoke to the accused and he left.
On 23 May 2015, Ms Kitis received a voice mail from the accused saying that he would cut people's heads off. Ms Kitis went to the police station and reported this to the police. On the same date, the accused went to hospital complaining of chest pain. His friend, who he was reported to be with, also reported that the accused expressed some deliberate self‑harm ideas. There is no evidence from that friend and the hospital notes are not in evidence. However, Dr De Klerk had access to the hospital notes and refers to them in his report. It does not appear to be in dispute that the notes do not record the accused expressing any persecutory belief regarding Aboriginal people.
A clinical note made on 24 May 2015 by the triage team mentioned a referral from a resident medical officer at the Royal Perth Hospital emergency department requesting psychiatric follow up for the accused's 'suicidal ideation'. A routine discussion was scheduled to decide upon further mental health follow up. The notes apparently record that the accused was contacted by telephone and an assessment arranged at the inner city mental health service. It is reported that the accused attended there on 25 May 2015 at 4.00 pm and was assessed by a social worker. It is recorded that the accused said that there was 'nothing wrong with me' and that he was not experiencing a mental health problem. There was apparently a decision made to discharge the referral.
On 25 May 2015, Ms Kitis obtained a violence restraining order against the accused from the Joondalup Magistrates Court. She continued to receive voice mails from the accused but she did not respond to them.
On Monday 25 May 2015, Mr Fredericks had a conversation with the accused about a computer game which he played. Mr Fredericks told the accused that during the course of a game modelled on world war II warfare, that if a person (presumably an enemy) got too close to shoot, the tactic was to produce a knife and slit their throat. The accused went quiet and did not discuss the matter further.
On Tuesday 26 May 2015, the accused picked up and dropped off Mr Fredericks at work at about 7.00 am. Mr Fredericks recalls the accused being quite normal when he left him. Mr Fredericks does not recall the accused expressing paranoid thoughts about Aboriginals on that date. During the morning the accused contacted Mr Fredericks to tell him that he had a new phone number. He contacted him again around lunchtime to see if Mr Fredericks needed anything for work.
The accused was late picking Mr Fredericks up from work. At about 4.10 pm Mr Fredericks texted the accused to find out why he was running late. The accused arrived at about the same time.
During the trip to Mr Fredericks home, the accused asked Mr Fredericks if he could get him some methylamphetamine. This surprised Mr Fredericks as he had understood from previous conversations with the accused that, although he was a cannabis user, he did not approve of methylamphetamine use. The accused then attempted to contact a Mr Lee Rule, presumably to obtain some drugs. Mr Rule and the deceased knew one another as they had worked as painters on the same job. Mr Rule also worked for the accused as a painter. Mr Rule gave evidence that he received a number of messages from the accused that evening to which he did not reply.
Significantly, the accused also told Mr Fredericks on about three occasions during the trip home, that he would need to clean his, the accused's, apartment. The accused dropped Mr Fredericks at his home at about 4. 30 ‑ 5.00 pm. Shortly after being dropped home, Mr Fredericks received a text message from the accused which said:
Do you think if I go home everything is clean?
Mr Fredericks replied:
Unlikely.
Mr Fredericks also asked the accused whether he had a house cleaner. It seems likely that the accused had stabbed the deceased by then as his pre‑occupation with the unit needing to be cleaned is consistent with there being blood in the unit. The accused attempted to call Mr Fredericks but he did not answer the phone. Mr Fredericks said that on the afternoon of 26 May 2015, the accused was very agitated, paranoid and angry. He moved around a lot and looked out the window when he said he needed to clean his apartment. The accused's paranoid and unusual behaviour was such that Mr Fredericks thought that he should get away from the accused.
Mr Fredericks called the accused at 7.15 pm regarding work the following day. The phone call was very short. The accused confirmed that he would pick up Mr Fredericks the following morning.
At about 5.50 am on Wednesday 27 May 2015, the accused sent a text to Mr Fredericks and said that he was going to arrive early. He rang Mr Fredericks at 5.58 am and told him that he was waiting outside his house. Mr Fredericks said that it was very strange for the accused to be early.

When Mr Fredericks got into the accused's car, the accused said that he wanted to go to Bunnings to get some garbage bags. Bunnings was still closed and Mr Fredericks suggested that they have a coffee. After obtaining their coffee they drove to Bunnings in Innaloo. They waited for a short time before Bunnings opened and they then went inside. The accused selected some heavy duty garbage bags, bin liners and latex gloves. Mr Fredericks purchased a torch for his son. Mr Fredericks paid for all of the items because the accused seemed only to have a handful of coins.
During the morning, the accused told Mr Fredericks that an old neighbour or neighbours from the Cannington area had kidnapped and raped his girlfriend. Prior to that the accused's complaints were more general. Mr Fredericks said that he stopped listening after a while. He said that the accused was quite different from how he had been on the afternoon of 26 May 2015. He was calmer and focused on getting his unit clean.
As the accused drove towards Mr Fredericks' place of work, he asked Mr Fredericks if he would mind helping him clean his apartment. Mr Fredericks agreed to do so and confirmed that there were clothes and rubbish, like beer bottles, to be cleaned up.
The accused then drove to the unit in Parker Street, South Perth. They arrived at about 7.20 am and parked underneath the block of apartments. They then walked up to level 17. The accused opened the door to unit W17 and told Mr Fredericks to go inside. The accused entered the unit first and Mr Fredericks followed him. The accused walked straight down the hallway to the back room which runs across the length of the unit. Mr Fredericks noted that that room was empty of all but some clothes and empty beer bottles.
Mr Fredericks saw an unopened beer bottle laying in the hallway. He also saw what he thought were wine droplets near the beer bottle. As Mr Fredericks walked into the unit and was standing on the carpet of the hallway adjacent to the kitchen, the accused said 'Come here, brother. Come and help me with this'. As Mr Fredericks got closer to the droplets he realised that they were not wine. He followed the trail of droplets to the left and saw a body underneath a blanket in the kitchen. He saw a pair of feet and the back of a head which was at the end of the kitchen closest to the kitchen sink. Mr Fredericks noted that the trail of droplets got heavier closer to the kitchen.
Mr Fredericks said to the accused 'I can't help you with this'. He said that he wanted nothing to do with it and he said that he would wait outside. Mr Fredericks immediately left the unit. He walked down the road, caught a bus to the city and then went home. Later that day Mr Fredericks reported what he had seen to the police and accompanied them to the accused's unit, where they found the deceased.
Mr Fredericks said that when he was in the unit with the accused, the accused appeared focused on his task. He did not seem to appreciate the unusual and shocking sight that confronted Mr Fredericks. Mr Fredericks said that the accused appeared to think that it was normal and thought that he, Mr Fredericks, would help him clean the unit.
From about 6.30 am on 27 May 2015, the accused also repeatedly attempted to contact Mr Rule. Mr Rule did not answer the phone initially, but, sometime around 8.00 am he took a call from the accused. The accused told Mr Rule that he had lost his car keys and he needed a lift. At about 10.00 am Mr Rule met the accused at a petrol station in Kelmscott where Mr Rule was filling up his car with petrol. The accused arrived in a taxi. From there Mr Rule drove the accused to the Karrinyup shopping centre. From there they went to a BP petrol station nearby so Mr Rule could get some oil for his car. They then drove to a locksmith and ultimately to City Motors, a car dealership in North Perth. There, the accused got out of the car. After about 15 minutes the police arrived and arrested the accused.
The police arrived at the unit in Parker Street, South Perth at approximately 12.20 pm on 27 May 2015. They knocked on the door of the apartment and there was no answer. The police then forcibly entered the apartment. Immediately in the hallway, just in front of the door was the deceased's body in a foetal position. The deceased's body was in two white hessian bags. There was a black bag over his head.
The accused must have placed the deceased's body in the two white bags after Mr Fredericks left the unit. He had placed one over the head and upper body of the deceased and placed the other one over the legs and lower half of the body. As depicted in the photographs of the scene, the two bags overlapped so that no part of the body was exposed. He had also put a black plastic bag over the white bag which covered the head of the deceased. There was some black clothing of some sort near to the body which appeared to have been partially ripped.
No forensic evidence was led to identify the areas where blood was found in the unit. However, a very comprehensive scene video taken soon after the police arrived at the unit shows that most of the blood in the unit was on the kitchen floor, particularly in the left hand corner as you would enter the kitchen. Most, if not all, of the blood in the kitchen was below benchtop height. This tends to suggest that the deceased was mainly stabbed when he was on or close to the ground in the kitchen, and particularly in that corner. There was also some blood spatter on the hallway wall, but not nearly as plentiful as that in the kitchen area.
The scene video shows that in the room which ran across the end of the unit there were two half empty beer bottles, a laptop computer which was plugged in and some items of clothing. In the kitchen there was a large multi coloured patterned blanket which was consistent with being the blanket which Mr Fredericks had seen covering the deceased's body.
There were no beds or furniture in the unit. There were some bags of clothing and other items of clothing scattered in another room. Other than that there was packaging for the garbage bags, and gloves and some other minor items scattered throughout the unit. All the items in the unit appeared to have been somewhat carelessly left in their positions. Although, the accused had moved the deceased's body, he seems to have made little effort to clean up the deceased's blood.

The accused's interview with the police

At about 5.30 pm on the afternoon of 27 May 2015, the accused participated in the EROI. Some of what the accused says in the EROI is inaudible because he has spoken quietly or too quickly. Further, it is sometimes difficult to understand what the accused says or means because he does not speak in full sentences. The accused appears to be able to understand what the police say to him and to be able to respond to them. It is noticeable that when he speaks about the deceased and his beliefs about him, he speaks quickly and in what I describe as a 'conspiratorial whisper'.
When the accused was given the caution he was asked 'what does a court decide?' The accused appeared to misunderstand that question as to being a question as to what would the court decide. He replied:
... if I say to you guys, like I did, what I did, I did for my country.(ts 9)
The difficulty in understanding the accused is illustrated by the very long response he gave to the first question he was asked about the deceased. He was asked 'what can you tell me about that body?' Part of the accused's response was as follows:
That person tried to kill me many time by sending his, uh, Aboriginal community for some, the reason that [indistinct] takes me many, many years to find out unbelievable [indistinct] many years. And everywhere I go, everything where I go, every shop, every house, every home I got, they are just, like, for example, they're next, next to me. You know, like, say threatening these and that, threatening this. I don't really, to be honest, care, what this kind of stuff, but I was thinking, I mean, that many years.
Why? Why? Why Why? Why? You know, why? Why? Why? Why? Why? Mmm. I used to live in, um 23‑slash Carden Drive in Cannington. - And, uh, my girlfriend, she was coming after school. You know, she was coming after school. She was coming all the to see me. And, uh, this guy, the one you're saying is d‑, dead, is dead body -
...
He was, like, when, when she coming, like, he was keep standing at [indistinct] I mean, from [indistinct] you know, like, I always think, like, oh my God [indistinct] is she, like [indistinct] or something. Like, what? But still, you know, I didn't give attention [indistinct]. So the next door, the same thing even [indistinct] the [indistinct] the same [indistinct]. I was like, shocked. And I just went there. Like, I said, can I ask you something, if you don't mind? And he said, uh, yeah. I said, why you, like, are you, are you looking to make my girlfriend like this? Like, I mean, what is the reason?
...
[Indistinct] what? What? I just she's white she's white. I mean
...
[Indistinct] fucking dogs. Kill the fucking [indistinct] all the [indistinct] all [indistinct] fucking [indistinct] I mean, and that is going to be coming in these peoples place [indistinct]. I said, I don't know [indistinct] these things. She's my girlfriend. And when she come, please do not look at her like that.
...
If you do, like, it will, it won't be good at all for you.
...
So, and he said to me, don't talk to me like this.
...
If I want, I can murder you tonight. You know what I mean? These typical, all around, the Aboriginal, these [indistinct] to be honest, I s-, I got scared [indistinct] like, he got so very in, very serious. He really, something very serious that I got shocked [indistinct]. Um. It was the night, that, uh, my girlfriend, she just came [indistinct] that night, I will never forget till I die. You know, every single person, my gut feeling says, knows that she got raped there that night. That screaming. She was screaming. You know what I mean? Oh my God. Like, ooh.
...
My girlfriend. I went outside to look, shout. I was shouting, where are you [indistinct] they just hold her [indistinct] around. So I can't hear her, you know what I mean? These [indistinct] they've been, ,like, oh my God. Like, I've been seeing this, like [indistinct] these [indistinct] they've been injecting her and raping her [indistinct] oh my God [indistinct] why? Why did I let her [indistinct] how, how, I wonder how did she go for that many years?
And they've been treating her, they've been [indistinct] they will kill your boyfriend. Maybe that's why she didn't tell me. Because they, they, they told her, if you say anything to your boyfriend, something, we will go kill him right now. And [indistinct] it was very, very unusual [indistinct] it was coming, like brr, brr. I thought, what the fuck? (ts 9 ‑ 11).
The accused made other allegations about the deceased including that he 'does every single dodgy thing on this planet'.
After quite a lot of prompting, the accused said that he had gone to the deceased's house in Carden Drive, Cannington. He could not recall when he had gone because he was not good with his memory but it was about two weeks ago. He was asked what pushed him to go there and he said:
This God feeling [indistinct] it's very hard to youse to understand but ... yeah I have to go there for some reason. I don't know [indistinct] what was going on (ts 15).
The accused said that when he saw the deceased there was a white dog with him which meant that 'we've got your girlfriend'. He said that he was convinced that his girlfriend was there and he was 'really frightened'. The police officers attempted to get the accused back to the issue of what had happened to the deceased. They asked the accused to tell them how the deceased came to be in his unit. The accused answered:
SIDDIQUE: Yeah, just, uh, took him to my room, and, uh, he, he did try his best, you know, to get me somehow first, you know? Something, something. Like, I knew this would blame me. Like, I knew with, you know? Like, he, he, he tried, tried, tried. I was by myself on that unit [indistinct] a big, big was coming. You know what I mean? They had, like, this bloody knife or something big (ts 18).
The accused was asked to identify the day on which the deceased died. He said that he thought that it was two days ago. The police identified that as being Monday 25 May 2015. They asked him whether the deceased had come in the afternoon or the night. The accused said in the afternoon. He said that he had gone to the deceased's house and told him that he wanted to speak to him and had then taken him to his unit. The accused denied that the deceased had stayed the night at his unit. The accused was asked why he wanted to take the deceased back to his place. The accused replied:
Because he always wanted to kill me.
...
He tried in, in all these, in every way, he did try....(ts 20).
The police asked the accused the obvious question of why he took the deceased back to his unit if the accused thought that the deceased was trying to kill him. The accused's response did not make sense. He said:
There was the, like, the guy was hiding something and that, so if I can do something or, you know what I mean? So they can jump on. They just start, and then bang, bang, bang, bang [indistinct] (ts 20).
The accused then said that there were Aboriginals everywhere but that the deceased was 'the one'. The accused continued:
SIDDIQUE: Telling to, you know what I mean? This, that. To do this, this, this, this. So, so the day he told me [indistinct] you white dog, I [indistinct] oh my god. I knew it. So I've been suffer for this guy. Say, If I just tell, you guys won't believe it or something like this. It, uh - -
SGT ATKINSON: This is your interview. It's your, you tell me what you want to.
SIDDIQUE: I know, I , I mean, uh. Look, I say, I died and I come back imagine.
SGT ATKINSON: Mmm.
SIDDIQUE: It sounds like very stupid what I'm saying to you.
SGT ATKINSON: Mmm.
SIDDIQUE: But in reality, this, it is true (ts 21).
The accused continued to refer to the deceased as having tried to kill him. The reference to the deceased having a white dog changed to him talking about a white dog. The accused continued:
SIDDIQUE: That day, I said, oh my God. This is the case, you know what I mean?
SGT ATKINSON: Mmm.
SIDDIQUE: He says, get rid of the cancer, before it gets you.
SGT ATKINSON: Yep.
SIDDIQUE: So that's why I did it.
SGT ATKINSON: So was he the cancer?
SIDDIQUE: He was the biggest cancer in this planet.
SGT ATKINSON: So how did you get rid of the cancer? How did you get rid of him?
SIDDIQUE: I just stabbed him.
SGT ATKINSON: Stabbed him with what?
SIDDIQUE: With a knife.
SGT ATKINSON: Okay. So how, where were you in the unit when you stabbed him?
SIDDIQUE: Next to my kitchen (ts 21 ‑ 22).
The accused was then asked how many times he had stabbed the deceased. He said that he could not tell the police, apparently because of a lack of recollection.
A short time later the accused said that he was in the hallway when he stabbed the deceased and that the deceased was facing him drinking beer. The accused then digressed to talk about events in the past. He spoke about being so scared because the Aboriginals were all trying to kill him. He recalled going to the police station to report this matter and when he saw that the police officer was Aboriginal he thought 'what can I do then?'.
Again the police attempted to bring the accused back to what happened in the unit. The police asked the accused how the deceased came to be wrapped up. The accused said that he had covered him with his blanket. The accused said:
SIDDIQUE: He was always showing me this red, red colour, you know?
SGT ATKINSON: Yeah.
SIDDIQUE: Always. Always he was showing me this red colour, red colour.
SGT ATKINSON: What, what red colour?
SIDDIQUE: A red colour. You, you know which red colour I mean.
SGT ATKINSON: Like ...
SIDDIQUE: [Indistinct] no. A red colour mean I will kill you. Blood.
SGT ATKINSON: Oh, okay. But he's dead now. He's dead now.
SIDDIQUE: He kill me that many times, so it doesn't matter if, he, if he die once (ts 25 ‑ 26).
The accused said that after he had stabbed the deceased, he had left the unit and stayed the night at a backpackers hostel.
In respect to what he had done to the deceased, the accused said:
SIDDIQUE: And I, and I just look at this guy, to be honest. I said, if, if somebody gives me pennies, pennies, a billion dollar to take a life, I would never do that.
SGT ATKINSON: Mmm. Mmm.
SIDDIQUE: You know what I mean? I will, I swear to God. I will never do, I don't have that much guts.
SGT ATKINSON: But it's happened.
SIDDIQUE: This feeling has come. I don't know, man.
SGT ATKINSON: Yeah.
SIDDIQUE: Uh. You know, like, that, I never thought of myself, something would happen like that.
SGT ATKINSON: Yep.
SIDDIQUE: Something, something, like, I can, I can just do. It's like something like that. To be honest, like, oh. And, like --- (ts 26).
The accused said he intended to take the deceased's body and put it in a graveyard but he had not decided where. He denied asking anyone to help him. Later, in respect to how he felt, the accused said:
SIDDIQUE: To be honest, I swear to God, I just, my whole soul told me you, you're released now. You know what I mean? You are like a free man.
SGT ATKINSON: After you killed him?
SIDDIQUE: Yeah, I mean, because, I mean, I was always like [indistinct] under pressure, under pressure. I couldn't even breathe I couldn't, you can't even breathe in your home. Just go sit in your room like this. You know, instead of [indistinct] don't go outside. If I tell anybody, they're going to kill me. These things. Like - -(ts 29).
He was asked where he had got the knife from and he said that it was tucked into his pants. He said that he believed that he had it there before he went and picked up the deceased. He was asked why he had tucked the knife into his pants and he replied:
SIDDIQUE: Because that place is, as I told you, you know what I mean? Like, what I went through, and I knew it. I mean, and I had know - -
SGT ATKINSON: Yep.
SIDDIQUE: If I go, like, without anything kill it, anything can happen. Any single thing can happen. You know what I mean? Like - -
SGT ATKINSON: Yep.
SIDDIQUE: That place is surrounded by Aboriginal (ts 32).
The police asked the accused what went through his mind to make him stab the deceased. The accused replied:
SIDDIQUE: The minute he says, I got your white dog, I understand, he is the one after me. He is the one after me. He was the one who tried to kill me. He was the one sending these people to my unit. Go inside. You know what I mean? Go inside. Lock, lock your door. Don't fucking come outside. Even if you, if you come outside, you know what I mean? I will [indistinct]
SGT ATKINSON: Yep. Yeah. But what about when you're in the unit the other day just gone? What made you take the knife out of your hip and stab Lionel? Why did you do that then?
SIDDIQUE: Look, if somebody is keep trying, trying, trying to kill you, you know what I mean?
SGT ATKINSON: Mmhmm.
SIDDIQUE: I imagine look at this miracle.
SGT ATKINSON: Mmm.
SIDDIQUE: You didn't even know. God is by your side. Anything they try doesn't happen. Anything they try, it didn't happen. Anything they try, it didn't happen.
SGT ATKINSON: Mmm.
SIDDIQUE: Fucking one day it will happen, man.
SGT ATKINSON: Yep.
SIDDIQUE: So I said, self‑defence, man. Why not? (ts 33 ‑ 34).
The accused then appeared to contradict some of the previous information he had given to the police. For example, he said that the deceased did not have a drink at the time that he stabbed him. The reference to the white dog also changed. The accused said that just before it happened the deceased had said to him 'how is whitey?' He said that this made him 100% sure that the deceased was 'the one'. He said that he then 'just, I just went off.' The accused said:
SIDDIQUE: Because he was talking fucking about my girlfriend for that many years. Imagine whole community - -
SGT ATKINSON: Mmm.
SIDDIQUE: Raped her. Oh my god. That - -
SGT ATKINSON: So when he said, how is Whitey, that made you - -
SIDDIQUE: Yes. Yes.
SGT ATKINSON: Grab the knife.
SIDDIQUE: Yes. And they, and, uh, I have the evidence in my room, with the nappy.
SGT ATKINSON: Hmhmm.
SIDDIQUE: That it's full of shit. The nappy is all, all the nappies. So they, I mean, they're raping her that much that she can't control herself, so she have to - -
SGT ATKINSON: Which girlfriend are you talking about?
SIDDIQUE: Rebecca (ts 35).
At about 6.20 pm there was a three and a half hour break in the interview during which the accused was forensically examined.

When the interview continued, the police asked the accused about events following the stabbing. Initially, the accused denied that anybody was with him when he went back to his unit that morning. He then acknowledged that he had been to Bunnings with Mr Fredericks and that Mr Fredericks had returned to the unit with him. He eventually acknowledged that Mr Fredericks had 'got a little bit scared' when he saw the blood and had left the unit. He said that he had wrapped the body up and tried to pick it up. He said that he had put the deceased's body next to the door, apparently where the police located it.
The accused also spoke about having been with Mr Rule during the day. He acknowledged purchasing items with which he intended to clean the blood off the floor. He said that he had not spoken to anybody about what had happened between him and the deceased.
Prior to the interview concluding, the deceased repeated in a rambling and disjointed way his delusions about how the deceased and his friends were everywhere and how he believed that they were coming to get him. Further, every time he looked at his girlfriend he felt that he needed to kill himself. He said that he could see the pain in her face but she did not tell him what she had been through.
Immediately before the end of the interview, the accused related what appeared to be a parable about a village and a king. I will not quote it as it makes no sense. The interview concluded at 10.35 pm.
I accept that the accused was, for the most part, attempting to tell the truth to the police. However, because of his mental illness, his poor recollection, the inconsistencies in some of what he said to the police and the disjointed way in which he spoke, I have not relied on his account of events unless it is supported by independent evidence. I accept that his state of mind and beliefs were as he described them.
During the evening of 27 May 2015 police took a sample of the accused's blood. It was analysed and found to contain 1.8 mg per litre of tetrahydrocannabinol. This is regarded as a low reading, no other common drugs were found in the accused's blood.

The psychiatric evidence

Dr Natalia Bilyk has been a psychiatrist since early 2015. She has been employed by the state forensic mental health service for nearly 4½ years. Her duties include assessing and treating patients at the Frankland Centre, the secure forensic mental health unit.
The accused was admitted to the Frankland Centre soon after the EROI. He was assessed by Dr Corbu, and Dr Bilyk took over his care on 28 May 2015 until 16 December 2015.
Dr Bilyk said that since the accused has been admitted to the Frankland Centre he has been diagnosed with schizophrenia. His schizophrenia has been difficult to treat. As he had not fully responded to other treatments, in about mid‑December 2015 he was prescribed the anti‑psychotic drug Clozapine. Dr Bilyk referred to this as the 'gold standard treatment'. It is also referred to as the drug of last resort when other drugs have been unsuccessful in treating the symptoms of schizophrenia. She said that treatment with Clozapine had been beneficial for the accused but he retained significant symptoms of his schizophrenia.
Dr Bilyk said that initially, the accused presented with auditory hallucinations. She said that he had a very fixed system of delusional beliefs about Aboriginal people that made a story for him.
Dr Bilyk said that the accused reported a series of delusional persecutory beliefs about the deceased and about a broader network of Aboriginal people who may have been involved with the deceased.
Dr Bilyk gave evidence that the accused reported to Dr Corbu on 29 May 2015 that:
He heard voices like women being raped and terrible voices.
...
He could hear the victim talking to him through his door in his apartment, and he could also hear scratching and noise in the ceiling of his apartment (ts 194).
In the first one to two weeks after his admission to the Frankland Centre, the accused reported that he could hear other patients muttering and saying things behind his back. After that the symptoms seemed to abate but returned later during his admission.
Dr Bilyk said that she had not seen the accused responding to voices but she did note that there were moments when he was distracted during their interviews, and that he lost the train of her questions and their discussion. She said that makes her suspicious but does not prove that the accused was hearing voices during their interviews.
Dr Corbu had asked the accused about the day he killed the deceased. The accused told Dr Corbu that he had to get rid of him, the deceased, because 'the abuse had to stop', referring to the abuse of girls who he believed were being raped by the deceased. The accused said that at the time he was with the deceased, he had a connection with God and that he felt overwhelmed by a duty to protect the girls. He said that the stabbing was an act of God and that he could not solve the problem any other way. The accused said that 'it is an order from God to take care of my girlfriend'.
Dr Bilyk was asked whether the accused's belief could be a 'passivity experience or phenomenon?' Dr Bilyk replied:
Yes. In - strictly speaking, it could be considered a compulsion to act, because it was ordered by God. He did allude to having a feeling - an overwhelming feeling about God. He doesn't specifically say that it was God taking control over his body to do this. He felt he was part of a higher order requirement to act. So it's strictly specifically speaking not passivity per se, because passivity implies that he's - does not have any control over his body, that another being has taken control (ts 196 ‑ 197).
Dr Bilyk said that when she saw the accused five days after his admission, he spoke of his enormous relief that he was free of persecution from the deceased and that the girls were also free. He told Dr Bilyk:
I would not have been a good person, that I live my life for this planet, that I am the messenger, God is the light (ts 197).
He told Dr Bilyk that now that the deceased was dead he felt that everyone, including himself, was safe.
Dr Bilyk gave an opinion about whether the accused's schizophrenia caused him to lack one of the capacities referred to in s 27. However, it is relevant to note that Dr Bilyk has not seen the EROI or seen or read any of the material in the prosecution brief or the evidence given at trial. Her opinion was based entirely on what the accused had told her, what she had read in the hospital notes and collateral information from those who knew the accused, principally Ms Kitis.
Dr Bilyk said that she believed that the accused cognitively understood what he was doing at the time he killed the deceased. However, she said that his schizophrenia deprived him of the capacity to understand that he ought not kill the deceased. Specifically, she said that the accused believed that his life was in danger from the victim and he was acting in self‑defence. She said that his reasoning was grossly impaired by his delusional beliefs that the victim had been targeting him for many years and continued to target him despite him having moved away from the Cannington area.
Dr Bilyk also said that she believed that the accused was deprived of the capacity to control his actions. She said that his mental impairment was such that he was compelled to act on his beliefs without the ability to reflect or reassess whether he should act. She is of the opinion that the accused held his delusional beliefs with full conviction and that in his mind he had no option but to act.
Dr Bilyk said that in her opinion, at the time he killed the deceased, the accused was deprived of the ability to make a rational and voluntary choice. His behaviour was not under the control of his rational deliberations and therefore he was deprived of the capacity to control himself or to know that he ought not do the act.
Dr Bilyk gave the opinion that the fact that the accused was able to perform everyday actions and to appear to choose whether or not to perform everyday actions did not detract from her opinion. She said that the nature of the accused's schizophrenia enabled him to perform everyday functions. She said it is consistent with schizophrenia for sufferers to have capacity to control their decision making in some domains and not in others.
Dr Bilyk said that the accused's response that he would not have done what he did, to Dr De Klerk's question to him as to whether he would have done what he did so as to kill the deceased if a police man was at his elbow, did not detract from her opinion. First, she said that that was a view expressed well after the event when the accused was not at the height of his delusional beliefs. Secondly, it was an opinion about whether what he did was legally right rather than in any other sense.
Dr Febbo finished his psychiatric training around 1993 and since that time he has worked as a consultant psychiatrist in private practice and at Royal Perth Hospital. He is well known to the court as an expert witness in cases which involve forensic psychiatric issues.
Dr Febbo was provided with the statement of material facts prepared by the police, the accused's prior criminal record and the EROI. He also read the evidence of the witnesses given at trial before he gave evidence. Dr Febbo interviewed the accused on 24 July 2015 for the purpose of providing an opinion as to whether the accused was of unsound mind when he killed the deceased.
Dr Febbo said that the history he obtained from the accused of his mental state leading up to the killing of the deceased was 'in keeping with the presence of florid psychotic symptoms'.
To a substantial extent, Dr Febbo relied upon the history which he obtained from the accused. In many respects it is similar to that given to the police and Dr Corbu, although there are some differences. Dr Febbo said that his review of the EROI was also consistent with the presence of florid psychotic symptoms, in particular, persecutory delusional ideations.
Dr Febbo said that the accused also had significant depressive symptoms and, on the basis of the history given to him by the accused, significant substance abuse (cannabis and methamphetamine abuse) in addition to escalating alcohol use.
Dr Febbo concluded that his diagnosis is in keeping with a psychotic disorder, most likely schizophrenia, although there is a differential diagnosis of a schizo‑affective disorder and a depressive episode with psychotic symptoms.
In his evidence, Dr Febbo said that the length of time it has taken for the accused's mental health to improve and the treatment resistant nature of his illness, suggests that his mental state was 'really quite severely impaired' for a long time following the killing. He said that the accused has had a longstanding chronic psychotic illness.
Dr Febbo said that the history was clear that the accused had been unwell for quite a long time and that leading up to the killing his psychotic symptoms were becoming more and more prominent and more and more intense.
Dr Febbo is of the opinion that some of the accused's psychotic symptoms had the quality of passivity phenomena. The factual basis for this opinion came, mainly, from the history given to him by the accused. Dr Febbo said that passivity phenomena are actions that one is unable to control in the sense that an external force has taken over and acts for you or alternatively, external feelings act for you.
Dr Febbo acknowledged that an order from God or an external voice to do something is not a passivity experience. He said that in passivity experiences, the actual act done is something over which the individual has no control. It is not the same as being told to do something and then doing it.
Dr Febbo is not of the view that the accused's drug use caused his likely schizophrenia or psychotic symptoms.
Dr Febbo did not say that the accused was deprived of the capacity to understand what he was doing when he killed the deceased.
Dr Febbo is of the opinion that at the time the accused killed the deceased he was in such a state of mental impairment, being a psychotic disorder which was most likely schizophrenia, as to deprive him of the capacity to know that he ought not stab the deceased. Dr Febbo accepted that at the time he stabbed the deceased, the accused had 'some very superficial and limited understanding as to right and wrong'. He said that it was superficial in the sense that he would know that to kill someone was wrong. However, Dr Febbo said that that understanding did not change the fact that the accused was severely impaired.
Dr Febbo is of the view that the accused's capacity to control his actions was also markedly impaired at the time he killed. This opinion is based on the history Dr Febbo obtained from the accused, his passivity experiences and his psychotic symptoms.
The history which Dr Febbo obtained included that the deceased had picked up a bottle, that the accused felt threatened by the deceased and that he was unable to do anything other than to stab the deceased.
Dr Febbo does not regard the accused's ability to decide to perform, and in fact voluntarily perform, other acts as undermining his opinion about the accused's lack of capacity. That is because the accused's actions in stabbing the deceased were closely related to his delusional ideation, whereas his other acts were not.
Dr De Klerk has been a fellow of the Royal Australian and New Zealand College of Psychiatrists since 2009. He has practised in New Zealand and Western Australia as a psychiatrist. He is currently practising in a private forensic psychiatric practice and contracts to the Department of Corrective Services to provide management and oversight of treatment of people with a wide range of mental illnesses. Dr De Klerk periodically attends as the forensic psychiatrist at the START Mental Health Court in Perth and is a member of the Western Australian Mental Health Review Board. When practising in New Zealand he gave independent expert witness in the District and High Courts of New Zealand. Since relocating to Western Australia in 2010 he has provided reports to Western Australian Courts and given evidence in them, although this was the first occasion on which he had given oral evidence in the Supreme Court.
Dr De Klerk interviewed the accused on two occasions in September and November 2015 for the purpose of providing a report as to whether the accused was of unsound mind when he stabbed the deceased. He was provided with relevant material, although he was not provided with the witness statements. Dr De Klerk's report and analysis of the issues in this trial impressed me as being more thorough than that of the other two psychiatrists.
Dr De Klerk took a lengthy history from the accused, including an account of what occurred leading up to and at the time of the killing of the deceased.
A lot of that history is consistent with what the accused told the police and what he said to Dr Corbu when he was first admitted to hospital. However, in some respects it is more consistent with what the accused told Dr Febbo in that he said that he had stabbed the deceased in self‑defence after being attacked by the victim. The accused told Dr De Klerk that the deceased had walked into his unit behind him and said 'I will get you white dogs one by one'. The accused said that the deceased then smashed a bottle of beer on his head. He said that after being attacked he stabbed the deceased, probably four or five times and he fell down. The accused denied that he could have stabbed the victim 30 times as alleged.
Dr De Klerk is of the opinion that the accused has symptoms and signs consistent with a definite diagnosis of schizophrenia. He noted that the accused has experienced delusional beliefs and auditory hallucinations for some years, thereby satisfying the diagnostic criteria for a diagnosis of schizophrenia. Dr De Klerk said that the accused's illness is currently partially treated. Although the accused has come to gain some insight into the delusional nature of some of his beliefs, he still maintains the veracity of other delusional beliefs.
Dr De Klerk noted that the accused says that his memory is poor and this appears to be confirmed by more objective reports. Dr De Klerk said that psychotic disorders are frequently accompanied by significant and disabling cognitive losses.
Dr De Klerk is also of the opinion that the accused suffers an alcohol use disorder, stimulant (amphetamine type) use disorder and cannabis use disorder along with self‑reported cannabis intoxication at the time he committed the killing.
Dr De Klerk concluded that the accused's mental illness, namely schizophrenia, which he was suffering at the time he killed the deceased satisfies the statutory meaning of 'mental impairment' in the Criminal Code s 27.
Dr De Klerk says that at the time he killed the deceased, the accused suffered persecutory delusions that were longstanding and well ingrained. His actions were congruent with the substance of his delusions directed against the deceased. Based on the accused's account of the killing, it was Dr De Klerk's opinion that the accused genuinely feared for his life when the deceased allegedly attacked him.
Dr De Klerk said that the accused, retrospectively, indicated to him that he had a very clear understanding of what was right and wrong and that killing another person was wrong. Dr De Klerk said that the accused indicated during both his interviews that he realised, now and at the time of the offending, that what he did was morally wrong.
During Dr De Klerk's interviews with the accused he had asked him whether he would have done what he did to kill the deceased if a police man had been standing at his elbow and he said no. The accused also told Dr De Klerk that he did not think it was a good thing that he had killed the deceased. He agreed '100%' that it was wrong to kill another person but he protested that he could not do anything else after the deceased hit him with the bottle and threatened to kill the white dogs. Dr De Klerk has no doubt that the accused knew that he should not have fatally stabbed the deceased.
Dr De Klerk is of the opinion that based on the accused's account, the accused would have understood what he was doing when he stabbed the deceased. On his account, he was defending his life against the deceased. Dr De Klerk is of the opinion that the accused was able to foresee the seriousness, if not lethal, outcome of his actions. Thus, Dr De Klerk is of the opinion that the accused was not deprived of the capacity to understand what he was doing, when he fatally stabbed the deceased.
At the time Dr De Klerk wrote his report dated 30 December 2015 and on the basis of the history given by the accused, Dr De Klerk was of the opinion that the accused may not have had the capacity to control his actions once he was attacked by the deceased and if he believed he was facing an immediate physical attack from the deceased.
By the time Dr De Klerk gave his evidence, he understood that the accused may not be asserting and I may not find that the accused was attacked by the deceased before the accused fatally stabbed him. In those circumstances, Dr De Klerk is much less convinced that the accused did not have the capacity to control his actions. His reasons for that are in essence that the other evidence would tend to suggest that the accused's fatal attack on the deceased was premeditated in that he went to the deceased's home, collected him, took him back to his unit, when he knew that he was armed with a knife, and then ferociously attacked him. As Dr De Klerk pointed out, this was in the context of the accused having paranoid delusions that the deceased was following him and wanting to kill him. Dr De Klerk also took into account the accused's behaviour after the deceased died. That is, he went and stayed at a backpackers hostel and made some rudimentary attempts to clean up and move the body. He also obtained Mr Fredericks help in those efforts. Dr De Klerk also took into account his opinion that the accused had a clear understanding of what was right and wrong and that killing someone was morally wrong. Dr De Klerk reasoned that if the accused had lured the deceased to his unit in a planned and orderly fashion and then fatally stabbed him, the killing was premeditated. Dr De Klerk reasoned that the accused would have had the ability to control his actions and await an opportune moment to kill.

In relation to whether the accused had passivity phenomena, Dr De Klerk said that the accused had not told him in either of his interviews that he felt compelled to do what he did, other than in self‑defence.

Was the accused mentally impaired when he killed the deceased?

The psychiatric evidence, overwhelmingly supported by the facts, is that at the time the accused killed the deceased he was mentally impaired. That is, he was suffering from a mental illness as defined in the Criminal Code, which was most likely schizophrenia. The accused's mental illness was of longstanding. It has proved difficult to treat.
The symptoms of the accused's mental illness at the time he killed the deceased, included a delusional belief system related to Aboriginals and in particular the deceased. He held paranoid and delusional beliefs that the deceased wanted to kill him and others and had kidnapped and raped Ms Kitis, and other white girls. The symptoms included some auditory hallucinations.
I am not satisfied that the accused was experiencing passivity phenomena at the time he killed the deceased. I do not accept that the evidence entitles me to come to this view, even on the balance of probabilities.
However, I am of the opinion that the accused believed that what he was doing was morally right, even though he may well have had an understanding that to kill was wrong. In part this was due to the accused's delusional beliefs about the seriousness of the deceased's behaviour and the threat he posed, but it was also due to the accused's delusional beliefs about his role as the only person who knew what the deceased was doing. Therefore he believed he was the only person who could save himself and the girls from the deceased's actions. He probably believed that he was acting as the agent of God when he killed the deceased and that he had no other viable solution.
There is insufficient evidence for me to conclude that the accused's mental impairment at the time that he killed the deceased was directly contributed to by drug use or alcohol misuse. Although, I accept that drug use and alcohol misuse in the past may have had some contributory effect to the development of the mental illness.

Did the accused's mental impairment deprive him of the capacity to understand what he was doing when he killed the deceased?

None of the psychiatrists were of the opinion that the accused's mental illness deprived him of his capacity to understand what he was doing when he killed the deceased. There is insufficient evidence either expert or non‑expert to satisfy me on the balance of probabilities that the accused was deprived of this capacity.

Did the accused's mental impairment deprive him of the capacity to control his actions which killed the deceased?

Dr Bilyk and Dr Febbo are of the view that the accused was deprived of his capacity to control his actions. Dr De Klerk is of the opinion that if there was no incident such as an attack by the deceased on the accused, it is less likely that he was not in control of his actions at the time he killed the deceased.
The resolution of this issue depends to some extent on my findings of fact. My findings of fact as detailed above are to the effect that the accused collected the deceased from somewhere, probably his home and took him to his unit in South Perth. There he attacked the deceased. I make no finding that the deceased attacked the accused or did anything to provoke an attack on him. Thus, I do not find that the deceased did anything to cause the accused to believe that it was necessary for him to stab the deceased in self‑defence.
In determining this issue I am also very influenced by the legal issue which is whether the accused has established on the balance of probabilities that his mental illness caused him to have an inability to control his fatal acts?
I am not satisfied on the balance of probabilities that the accused lacked the capacity to control his actions. His capacity to control his actions was significantly impaired due to the symptoms of his mental illness. However, it is clear that the accused had the ability to control his actions with the deceased leading up to the point of time at which he killed him. Whether or not the fatal stabbing was frenzied, it required deliberate and forceful actions. There is no evidence of lack of control after that point. Further, the accused did not describe in the EROI or to Dr Corbu, a state of mind equivalent to automatism, involuntary action or inability to control an irresistible impulse when he stabbed the deceased.
I find that there was sufficient volition in the accused's actions in stabbing the deceased. I do not find that the accused's mental illness deprived him of the capacity to control his actions.

Did the accused's mental impairment deprive him of the capacity to know that he ought not do the acts which killed the deceased?

Dr Bilyk and Dr Febbo are of the opinion that the accused's delusional belief system deprived him of the capacity to know that he ought not stab the deceased. Dr De Klerk, on the other hand, is of the opinion that the accused knew that killing the deceased was morally wrong.
I acknowledge that Dr De Klerk's opinion has some force. However, I have concluded on the balance of probabilities that the accused at the time he fatally stabbed the deceased was in such a state of mental impairment as to deprive him of capacity to know that he ought not fatally stab the deceased.
In coming to this view, I have been significantly influenced by what the High Court said in Stapleton and what the Court of Appeal said in Evans. Applying those principles to the facts of this case, I conclude that the accused's mental state at the time he killed the deceased prevented him from reasoning with any degree of rationality and clarity. I accept that he may well have known that killing someone was regarded as wrong, whether morally or legally. However, in my view the accused's mental illness and the delusional belief system that it produced, 'so governed the faculties' at the time the accused stabbed the deceased that he was 'incapable of reasoning with some moderate degree of calmness as to the wrongness of his acts or of comprehending the nature or significance of the act of killing the deceased, in particular'.
In fact, I am satisfied that the accused believed that what he was doing was the only morally right and proper thing he could do in order to save himself and those who he believed were victims of the deceased's actions. In the words of McLure P in Evans, the accused had 'an incapacity to reason rationally as to what is right or wrong according to ordinary standards'. Or in the words of Wheeler JA, the accused lacked the capacity to 'think rationally of the reasons which would lead ordinary people to consider' his actions of stabbing the deceased 'to be right or wrong'.
I am not prepared to judge the accused on the basis of what the accused told Dr De Klerk months later about knowing what he did was wrong and knowing that to kill is wrong. That is because at the time the accused killed the deceased, I am satisfied that the accused was incapable of reasoning in that way because of his intense delusional belief system.
There may well have been some premeditation in the accused's fatal attack on the deceased, but this does not mean that he was aware that he ought not to act as he did when he fatally stabbed the deceased. The state of his delusions and the disordered state of his mind deprived him of any capacity to reason with even a 'moderate degree of sense and composure' over the days leading up to the fatal attack.

Conclusions

I am satisfied beyond reasonable doubt that the accused killed Cedric Lionel Rowe by voluntarily stabbing him, repeatedly. I am satisfied on the balance of probabilities that the accused is not criminally responsible for his acts which killed Mr Rowe on account of unsoundness of mind. I am satisfied that at the time of doing those acts he was in such a state of mental impairment as to deprive him of capacity to know that he ought not do the acts which killed Mr Rowe.