The State of Western Australia v Smith
[2020] WASC 282
•31 JULY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- SMITH [2020] WASC 282
CORAM: FIANNACA J
HEARD: 29 JUNE - 1 JULY 2020
DELIVERED : 31 JULY 2020
FILE NO/S: INS 62 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
SHANNON SCOTT WESTERMAN SMITH
Accused
Catchwords:
Criminal law - Trial by judge alone - Murder - Insanity - Whether accused was mentally impaired - Whether accused lacked the capacity to know that she ought not to do the act
Legislation:
Criminal Code (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Evidence Act 1906 (WA)
Result:
Accused found not guilty on account of unsoundness of mind
Custody order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr J G Nicholls |
| Accused | : | Ms K A Shepherd & Ms A M Taylor |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Kate King Legal |
Case(s) referred to in decision(s):
Cooley v The State of Western Australia [2005] WASCA 160
Evans v The State of Western Australia [2010] WASCA 34
Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Golightly (1977) WAR 401
R v Hall (1988) 36 A Crim R 368
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Hope [1909] VLR 149
R v Porter (1936) 55 CLR 182
R v Porter [1933] HCA 1; (1933) 55 CLR 182
R v Radford (1985) 20 A Crim R 388
R v Woodcock (1789) 1 Leach 500; 168 ER 352
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
T (a Child) v The Queen (1998) 20 WAR 130
The State of Western Australia v Jones [2018] WASC 395
The State of Western Australia v Knock [2020] WASC 246
The State of Western Australia v Marotta [2018] WASC 329
Walton v The Queen (1989) 166 CLR 283
Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254
FIANNACA J:
The charge and history of the proceedings
Shannon Scott Westerman Smith (the accused) has been charged on indictment that on 6 October 2018, at Rockingham, he murdered Jacqueline Lynn Francis. It is alleged that he killed Ms Francis by inflicting a fatal wound to her neck. Ms Francis had been a mental health support worker for the accused. On 6 October 2018 she visited the accused because she was concerned that his mental health was deteriorating. The accused is alleged to have killed Ms Francis as she left his home.[1]
[1] Henceforth, as is customary, I will refer to Ms Francis as 'the deceased'. No disrespect is intended to the memory of Ms Francis or to her family by the use of that formal description.
On 12 January 2020, the accused applied for a trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA). The basis of the application was that the accused intended to plead not guilty on account of unsoundness of mind, and the only issue at trial would be whether the accused was of unsound mind 'at the time of the commission of the physical event giving rise to the charge of murder'.[2] On 17 February 2020, Corboy J ordered that accused be tried by judge alone.
[2] Affidavit of Neville Robert Barber sworn 12 January 2020.
On 12 March 2020, the trial was listed to commence on 29 June 2020.
A preliminary issue – mental fitness to stand trial
On 18 June 2020, the accused applied for an order that he be examined by a psychiatrist to determine his mental fitness to stand trial. The application was supported by an affidavit from the accused's counsel, which referred to her recent contact with the accused for instructions, and raised concerns that his mental state had deteriorated.
At a hearing on 19 June 2020, it was ascertained that Dr Victoria Pascu, a consultant forensic psychiatrist, would be able to examine the accused as a matter of urgency and provide a report the following week. Dr Pascu was one of the psychiatrists who had previously examined the accused to provide an opinion in respect of whether he was of unsound mind at the time the offence is alleged to have been committed. It was agreed at the hearing that, to facilitate the urgent examination, the defence would request Dr Pascu to conduct the examination and provide a report, rather than the court order an examination and a report.
Dr Pascu examined the accused later that day and provided a report dated 22 June 2020, which was received as exhibit 1 in the trial. It will be necessary to consider other aspects of that report later in these reasons. At this stage it is sufficient to say that, Dr Pascu considered that the accused's mental state had continued to improve on the antipsychotic medication Clozapine since she assessed him in February 2019, but there was a possibility of his psychotic symptoms worsening as a result of the accused smoking cigarettes. She explained that tobacco can interfere with the metabolism of Clozapine and can lead to the reduction of serum levels of that medication.[3] However, Dr Pascu considered that the accused's insight into his mental illness had improved. Significantly, she believed that, at the time of her assessment, the accused was mentally fit to stand trial with assistance from his counsel.[4]
[3] Exhibit 1 [20].
[4] Exhibit 1 [22].
The parties agreed that the court could be satisfied, on the basis of Dr Pascu's report of 22 June 2020, that the accused was mentally fit to stand trial, so that it was not necessary to conduct a hearing to determine that issue before the commencement of the trial. However, as the question of the accused's mental fitness to stand trial was raised by the defence, I should outline briefly my reasons for accepting the parties' agreed proposition and proceeding, therefore, on the basis that the accused was mentally fit to stand trial.
Section 10 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (CLMIA Act) provides that an accused person is presumed to be mentally fit to stand trial until the contrary is found under pt 3 of the CLMIA Act.
In light of the presumption, the question, when it is raised, is whether an accused is 'not mentally fit to stand trial'. Accordingly, s 11 of the CLMIA Act provides, relevantly, that 'the question of whether an accused is not mentally fit to stand trial' may be raised at any time after an indictment is presented to the court, but before a jury is sworn, or at any time during the trial. Although this is a trial by judge alone, the question was raised appropriately at a time after the indictment was presented, but before the trial commenced.
Section 9 of the CLMIA Act provides:
An accused is not mentally fit to stand trial for an offence if the accused, because of mental impairment, is -
(a)unable to understand the nature of the charge; or
(b) unable to understand the requirement to plead to the charge or the effect of a plea; or
(c)unable to understand the purpose of a trial; or
(d)unable to understand or exercise the right to challenge jurors; or
(e)unable to follow the course of the trial; or
(f)unable to understand the substantial effect of evidence presented by the prosecution in the trial; or
(g)unable to properly defend the charge.
Section 12(1) of the CLMIA Act provides that the question of whether an accused is not mentally fit to stand trial is to be decided by the presiding judicial officer on the balance of probabilities after inquiring into the question and informing himself or herself in any way the judicial officer thinks fit.
Given the position taken by both parties, I was satisfied that it was sufficient to inform myself in respect of the issue on the basis of Dr Pascu's report of 22 June 2020. In that report, Dr Pascu addressed each of the capacities in s 9 of the CLMIA Act and expressed the opinion that the accused had all of the capacities. More specifically, in respect of matters that require understanding, Dr Pascu was of the opinion that the accused had a satisfactory understanding of those matters. In particular, she considered that the accused had a satisfactory understanding of the difference between a guilty plea and a not guilty plea, and he had the ability to understand evidence presented against him and 'to appreciate the implications of the evidence to the case, with support from his counsel'.[5]
[5] Exhibit 1 [22].
Having regard to Dr Pascu's report, there was no basis on which to conclude, on the balance of probabilities, that the accused would be unable to do any of the things specified in s 9 of the CLMIA Act. The presumption that the accused is mentally fit to stand trial was not displaced. Accordingly, I was satisfied he was mentally fit to stand trial.
The accused's plea and formal admissions
At the commencement of the trial on 29 June 2020, the accused entered a plea of not guilty on account of unsoundness of mind. That plea invokes the defence under s 27 of the Criminal Code (WA), commonly referred to as the insanity defence.
The accused subsequently made formal admissions pursuant to s 32 of the Evidence Act 1906 (WA) (Evidence Act) in the following terms:[6]
(1)On 6 October 2018 at Rockingham, [the accused] stabbed Jacqueline Lynn Francis;
(2)At the time of the stabbing, [the accused] intended to kill or to cause Jacqueline Lynn Francis a life-threatening injury;
(3)As a result of the act of stabbing by [the accused], Jacqueline Lynn Francis sustained sharp force injures to her neck and died from those injuries.
[6] The admissions were contained in a document signed by the accused, which was received as Exhibit 3, and were read at the trial by his counsel.
Section 32 of the Evidence Act provides that an accused person, either personally or by his counsel or solicitor, in his presence, 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. The formal admissions in this case were contained in a document signed by the accused and were stated aloud by his counsel. They are sufficient proof of the facts admitted, but that does not preclude the State from relying also on other evidence that tends to prove those facts.
Agreed facts and documentary evidence
Prior to the commencement of the trial, the parties had agreed that the State's case could be put before the court by way of a Statement of Agreed Facts[7] and the tender of the statements of various specified witnesses and a number of specified exhibits in the prosecution brief. By those means, the court would have before it evidence of the history of the relationship between the accused and the deceased, the accused's movements on the day of the offence, and various other matters relevant to the accused's state of mind leading up to the offence. In fact, much of the material would be relevant also to the accused's case.
[7] Exhibit 2.
Accordingly, after the accused was arraigned, the prosecutor informed me that neither party intended to make an opening address, but that he would read the Statement of Agreed Facts by way of outlining the facts, and he would then tender the materials to be relied on in the prosecution brief and any further relevant materials. The defence would then call the expert evidence on which the accused relied in support of the defence
Section 93 of the CPA provides that if an accused pleads not guilty to a charge on account of unsoundness of mind and the judge is satisfied that the only fact in issue is whether the accused is not criminally responsible under s 27 of the Criminal Code, the judge may decide the issue on any evidence and in any manner the judge thinks fit, if the prosecutor consents and the accused does not object to the judge doing so and if it is in the interests of justice to do so. Having regard to s 93 and the positions taken by the parties, I was satisfied that it was in the interests of justice to receive into evidence the Statement of Agreed Facts, the witnesses' statements and the other specified materials, and to then receive the evidence of the expert witnesses to be called by the defence, both in writing and orally, for the purpose of determining whether the accused was not criminally responsible under s 27 of the Criminal Code. I therefore allowed the Statement of Agreed Facts, the witnesses' statements and the other specified materials to be tendered as exhibits.
The trial proceeded accordingly. The State did not call any witnesses to give evidence.
At the conclusion of the State's case, the accused elected not to give evidence, but called two consultant forensic psychiatrists, namely Dr Adam Brett and Dr Pascu to give evidence.
Statutory requirements in relation to trials by judge alone
Section 120(1)(a) of the CPA provides that I may make any findings and give any verdict the jury could have made or given if the trial had been before a jury.
Section 120(2) of the CPA provides that my judgment must include the principles of law that I have applied and the findings of fact on which I have relied. It is necessary, therefore, for me to state the legal principles that I must apply in determining the charge.
The principles of law applicable in this case
Burden and standard of proof generally
The accused is presumed to be innocent of the offence charged.
The burden of proving the accused's guilt of the offence is on the State. The standard to which the State must prove the charge before the accused can be found guilty is beyond reasonable doubt. The State must prove each of the elements of the offence beyond reasonable doubt. If the State does not prove each of the elements beyond reasonable doubt, the only proper verdict is one of not guilty.
However, as will appear below, on a charge of murder, where the accused relies on the defence of unsoundness of mind, the defence comes to be considered once the State has established all of the elements of that offence other than intention. If the defence is established, the proper verdict is not guilty on account of unsoundness of mind.
The facts are largely not disputed by the accused. Where the facts are uncontroversial, it makes the fact‑finding task easier, but there remains a need for the court to be satisfied of the prosecution case beyond reasonable doubt in relation to the elements of the offence before the accused could be found guilty, or, as in this case, before it is necessary to determine the issue of unsoundness of mind. The accused does not have to prove anything in respect of the elements of the offence.
Inferences
The evidence in respect of both the events that resulted in the deceased's death and the accused's state of mind is largely circumstantial. The finding of facts about those matters will depend, at least in part, on the drawing of inferences.
In determining what inference or inferences to draw from any particular aspect of the evidence, the evidence must be considered as a whole, not in isolation or piecemeal.[8]
[8] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [48] (Gummow, Hayne & Crennan JJ; Gleeson CJ agreeing at [5]).
Where it is necessary to draw inferences as to essential facts, I may draw an inference against the accused only if I am satisfied that it is the only reasonable inference available to be drawn. I must consider, therefore, whether there are any alternative inferences which would be consistent with the accused's innocence. This reflects the requirement that the State must prove each element of the charge beyond a reasonable doubt.
Expert evidence
At trial, two experts gave evidence, which was largely uncontested. Whilst neither a jury nor a judge sitting alone is bound to accept and act upon expert evidence, where there is no evidence or circumstance to contradict or cast doubt on that evidence, it would be unreasonable to reject the evidence.[9] In a case concerning a defence under s 27, where determination of the issue depends very much on the evidence of expert psychiatrists, a verdict cannot be given contrary to that evidence if there is no evidence or circumstance to contradict or cast doubt on it.[10] A factor that may be taken into account in deciding what weight to give to expert evidence is whether it incorporates assumptions not founded upon the evidence in the trial on which the expert's opinions rely.[11] In this case, where I have departed from the expert evidence, I will state why I have done so. For the most part, I have accepted the evidence of the experts. The question is what conclusions I can draw from it, having regard to the other evidence in the case.
Accused not giving evidence
[9] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 (Hone) [13] (Steytler P), [124] ‑ [125] (Miller JA).
[10] Hone [13] (Steytler P), [124] – [125] (Miller JA).
[11] R v Hall (1988) 36 A Crim R 368, 361 (Allen J); Hone [125] (Miller JA).
The accused elected not to give evidence at the trial. Consistently with the principles in respect of the presumption of innocence and the burden and standard of proof, an accused person is under no obligation to give or adduce evidence. I draw no adverse inference against the accused in respect of his election not to give evidence.
Prejudice and sympathy
I bear in mind that I must not allow prejudice or sympathy to play any part in my determination of the charge. The case concerns the tragic loss of life of someone who was acting out of compassion for the accused. The evidence also establishes that the accused was suffering from mental illness that caused him distress. These are matters that have relevance in the determination of the facts, but they must be assessed in a dispassionate manner.
Decision must be on the basis of the evidence
I must decide the case solely on the basis of the evidence produced in the trial, and not on any other matters.
I must not guess or speculate about matters that are not in evidence or look for theories that are not supported by the evidence.
Elements of the offence of murder
In order to prove the accused committed the offence of murder, the State must prove beyond reasonable doubt all of the following elements:
(1)The accused was the offender, being the person who did the relevant act or acts;
(2)The accused killed the deceased, in that, by his act or acts, he caused her death directly or indirectly;[12]
(3)The killing of the deceased by the accused was unlawful; and
(4)The accused intended to cause the death of the deceased, or intended to cause a bodily injury to the deceased that was, objectively, of such a nature as to endanger, or be likely to endanger, the deceased's life.
[12] Criminal Code s 270.
The accused admits that he killed the deceased by 'stabbing' her, as a result of which she sustained 'sharp force injures to her neck', from which she died. As will appear below, what the accused did might more appropriately be described as cutting the deceased's neck or throat, rather than a stabbing, but nothing turns on that difference. The accused's admissions mean that the first two elements are not in issue.
As for the third element, a killing is unlawful unless it is authorised or justified or excused by law.[13] The accused's case is that he is not criminally responsible for the killing of the deceased (in other words, he is not liable to punishment as for an offence[14]) because he was of unsound mind, as provided for in s 27 of the Criminal Code. He does not suggest that his killing of the deceased was lawful (i.e. authorised, justified or excused) on any other basis provided for by law.
[13] Criminal Code s 268.
[14] Criminal Code s 1(1) – definition of 'criminally responsible'.
The central issue in this trial is whether the accused is not criminally responsible for killing the deceased, because he was of unsound mind, in the relevant sense, at the time he did the acts that resulted in her death. It is necessary to decide that issue before considering whether the accused had the relevant intention necessary to establish the offence of murder.[15] Only if the insanity defence under s 27 is not established will the question arise, whether the State has proved that the accused had the relevant intention.[16]
[15] Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 (Hawkins), 517; Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 (Ward) [20] (Kennedy J), [39] (Pidgeon J), [52] ‑ [56] (Wallwork J), [103] (Scott J). Wheeler J was alone in coming to the view that Hawkins did not mandate the order of consideration of the issues: [126] ‑ [146]. Pidgeon J qualified his acceptance of the proposition: [40] ‑ [42].
[16] Hawkins; Ward.
As I noted earlier, the accused formally admitted that, at the time he caused the injuries to the deceased, he intended to kill her or to cause her a life‑threatening injury. If the insanity defence is not established, the admission would be sufficient proof of the accused's guilt of murder. His case was not put on the basis that, in the circumstances of this case, the accused's mental illness would otherwise be relevant to the question of whether he had the capacity to form, or actually formed, an intention to kill or cause a life-threatening injury to the deceased.[17] It may be that the accused's admission of an intention to kill or cause a life‑threatening injury is relevant to my consideration of the insanity defence, if it informs the question of whether the accused's mind was disordered in the manner relevant for the purposes of s 27. However, if the insanity defence is established, there will be no occasion to make a finding in respect of the last element of the offence of murder.
Legal principles relating to s 27(1)
[17] Cf Cooley v The State of Western Australia [2005] WASCA 160 [28] – [33] (Roberts‑Smith JA; Wheeler & Pullin JJA agreeing); Hawkins, 513.
I now turn to the law specifically concerning the defence 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.[18] The accused has the burden of proving that he was not of sound mind at the time that he did the act which is alleged to constitute the charged offence. The accused must prove that he was not of sound mind on the balance of probabilities.[19]
[18] Criminal Code s 26.
[19] R v Porter [1933] HCA 1; (1933) 55 CLR 182.
Section 27 of the Criminal Code provides as follows:
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(2)A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
Accordingly, under s 27, mental impairment can either relieve a person of criminal responsibility, if it has deprived the person of one of the relevant mental capacities, or it can affect the extent of the person's criminal responsibility if the person was not deprived of any of the relevant mental capacities, but was acting in accordance with delusional beliefs caused by the mental impairment. In this case, the accused relies on s 27(1). His case is that his mental impairment deprived him of the capacity to know that he ought not to do the act which caused the deceased's death. Although it is part of that case that the accused was affected by delusions as a result of the mental impairment, it is not the accused's case that s 27(2) would operate to reduce his criminal responsibility in any respect if he was not deprived of the capacity to know that he ought not to do the act that resulted in the deceased's death. In other words, in the absence of proof that he was deprived of one of the relevant mental capacities, if the real state of things had been as he believed them to be in accordance with his delusions, there was nothing in those circumstances to relieve him of, or reduce, his criminal responsibility for his conduct.
Mental impairment
The term mental impairment is defined in s 1(1) of the Criminal Code to mean 'intellectual disability, mental illness, brain damage or senility'. 'Mental illness' is defined to mean 'an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.'[20]
[20] Criminal Code s 1(1).
What constitutes a mental illness is a matter of law, whereas whether or not the facts disclose a state of mental illness is a question of fact.[21]
[21] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 60.
In The State of Western Australia v Jones,[22] Jenkins J noted, referring to comments of King CJ in R v Radford,[23] that the definition of 'mental illness' in s 1(1) of the Criminal Code reflects the meaning of 'disease of the mind' in the common law principles concerning the defence of insanity. The terms are synonymous. As Jenkins J said, summarising the principles stated by King CJ in Radford, a temporary disorder or disturbance of an otherwise healthy mind caused by external factors is not properly regarded as a disease of the mind. However, a temporary disorder, even of short duration, that results from an underlying pathological infirmity of the mind, which can properly be termed mental illness, will come within the meaning of 'mental impairment'. Mental illness does not include 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self‑control and impulsiveness'.[24]
[22] The State of Western Australia v Jones [2018] WASC 395 (Jones) [43].
[23] R v Radford (1985) 20 A Crim R 388 (Radford), 396. As Jenkins J noted in Jones, the comments of King CJ in Radford in respect of what constitutes a 'disease of the mind' were generally approved by the High Court in the context of the provisions of the Criminal Code at that time in R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 60.
[24] Radford, 396; Jones [43].
It is not in dispute that schizophrenia and schizophrenia-like illnesses causing psychoses are mental illnesses for the purpose of s 27 of the Criminal Code.
Capacity to know one ought not to do the act
The accused contends that, at the time he did the act or acts that resulted in the deceased's death, his mental illness deprived him of the capacity to know that he ought not to do the act or acts.
I respectfully agree with and adopt the analysis of the law and the conclusions reached by Jenkins J in The State of Western Australia v Marotta,[25] which her Honour reiterated in Jones,[26] in respect of this aspect of the insanity defence. As her Honour said, the reference to a person being deprived by mental impairment of the capacity to know that he ought not to do the act that constitutes the offence is generally considered to be equivalent to the alternative formulation under the M'Naghten rules at common law that the accused was labouring under such a defect of reason 'that he did not know that he was doing what was wrong'.[27] In fact, as appears in Stapleton,[28] the opinion in M'Naghten's case used the phrases 'act … that he ought not to do' and 'act that was wrong' synonymously. In Stapleton, the High Court did not draw a distinction between the two formulations. Similarly, in Evans v The State of Western Australia[29] the Court of Appeal proceeded on the basis that the principles in respect of the common law formulation of this aspect of the insanity defence applied when considering the issue under s 27.
[25] The State of Western Australia v Marotta [2018] WASC 329 (Marotta) [53] – [56].
[26] Jones [47].
[27] See the discussion in Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 (Stapleton), 371 of the formulation of the relevant rules in the opinion of the judges to the House of Lords in M'Naghten's case.
[28] Stapleton, 372.
[29] Evans v The State of Western Australia [2010] WASCA 34 (Evans).
The starting point tends to be the jury direction given by Dixon J on a trial of murder in the original jurisdiction of the High Court in R v Porter,[30] where his Honour said in respect of this aspect of the insanity defence:[31]
It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression 'know,' ' knew that what he was doing was wrong.' We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.
[30] R v Porter (1936) 55 CLR 182 (Porter).
[31] Porter, 189 – 190.
Dixon J further said that what is meant by 'incapacity' in this context is 'not that he reasoned wrongly, or that being a responsible person he had … unsound ideas, but that he was quite incapable of taking into account considerations which go to make right or wrong'.[32]
[32] Porter, 190.
In Stapleton, the High Court held that the capacity to know that one ought not to do an act does not require knowledge that the act is wrong in the sense that it is contrary to law; nor does knowledge that the act is punishable by law necessarily mean that a person has the capacity to know he ought not to do the act.[33] What is required is that the accused knows right from wrong according to reasonable standards, not legality from illegality.[34] The court acknowledged that, 'from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable.'[35] However, the danger of conflating the two ideas would arise if, notwithstanding that a person has complete incapacity to reason as to what is right or wrong because of mental illness, 'he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.'[36] The court identified the correct approach and the risk of a jury reasoning incorrectly in the following passage:[37]
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.
[33] Stapleton 372, 375.
[34] Stapleton 367, 375.
[35] Stapleton 375.
[36] Stapleton 375.
[37] Stapleton 367.
In Evans, McLure P said there was no suggestion of any material distinction between the common law test as stated by the High Court in Stapleton and s 27 of the Criminal Code.[38] Relevantly, her Honour 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'.[39] Her Honour considered that, in the context of this capacity, the term 'know' means 'understand', 'appreciate' or 'comprehend'. Her Honour observed that whether an act is right or wrong is determined by reference to an objective standard. The question is whether mental impairment resulted in the accused having a complete incapacity to reason as to what was right or wrong by that objective standard.[40] Her Honour said:[41]
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.
[38] Evans [31].
[39] Evans [30].
[40] Evans [31].
[41] Evans [31].
Similarly, Wheeler JA (Owen JA agreeing) in Evans considered that the principles to be extracted from Stapleton focussed on the following two issues:[42]
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. As the High Court observed, from a practical point of view it often may not matter much, because in relation to serious offences the two ideas 'are not easily separable'. However, in cases where, as here, the distinction may arise, it should be made. 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.
[42] Evans [60].
In relation to the references in the authorities to whether an accused could reason with a 'moderate degree of sense and composure' or 'calmness', Wheeler JA made the following comments in Evans, which I take into account:[43]
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.
[43] Evans [61].
I will apply the principles I have outlined in this section when considering whether the accused has established on the balance of probabilities that, as a result of mental impairment, he was deprived of the capacity to know that he ought not to do the act that resulted in the deceased's death. Without limiting the full breadth of those principles, I respectfully agree with the summaries arrived at by Jenkins J in Jones[44] and Derrick J in The State of Western Australia v Knock,[45] which may be combined into the following proposition: A person will be deprived of the capacity to know that they ought not to do the act that constitutes the offence if they have a complete incapacity to understand, appreciate or comprehend that the act is wrong according to ordinary standards (as distinct from unlawful), in that the person is incapable of thinking rationally of the reasons which would lead ordinary people to consider the act right or wrong by ordinary standards, as opposed to the law.
Capacity to control one's actions
[44] Jones [48].
[45] The State of Western Australia v Knock [2020] WASC 246 [51].
As will appear below, the psychiatric evidence in this case was to the effect that it could not be said with confidence that, at the time he inflicted the fatal injury to the deceased, the accused was deprived of the capacity to control his actions as a result of his mental impairment, for instance because the mental impairment caused him to act impulsively. It is not surprising, then, that the accused did not rely on a lack of the capacity to control his actions as a basis for submitting that he was not criminally responsible on account of unsoundness of mind. However, as the issue arises as a possibility, I will have regard to the following statements of the law about that issue.
As with the previous issues, I respectfully agree with and adopt the analysis of the law and the conclusions reached by Jenkins J in Marotta,[46] which her Honour reiterated in Jones,[47] in respect of this aspect of the insanity defence. Her Honour adopted the statements of law in respect of the issue in the High Court decision of R v Falconer[48] and reached the following conclusions:[49]
I conclude that the High Court has given what some authors have described as a 'very narrow sphere of operation' to the second limb of s 27. A person is deprived of the capacity to control his actions where his actions occur independently of the exercise of his will and where the person cannot exercise the power of choice to act.
This construction of the second limb of s 27 does not exclude those cases where a person is by their mental [illness] deprived of the capacity to control their actions in the sense that they are deprived of the capacity to refrain from doing an act or in the sense that the effect of their mental [illness] on their mind deprives them of the capacity to choose to act.
In the case of the effect of mental [illness] on a person's capacity to control their actions the focus will often be on the extent to which their delusions or hallucinations controlled their actions or in the words of Sir Samuel Griffith deprived them of the power of choice.
It will involve a consideration of the extent to which their mental [illness] compromised their ability to will their actions or to decide not to act. But it is necessary to bear in mind that … s 27 only applies if the accused is deprived of capacity to control actions, as opposed to something less than that such as having a significantly impaired capacity to resist an impulse or an emotion.
[46] Marotta [39] – [45].
[47] Jones [46].
[48] R v Falconer [1990] HCA 49; (1990) 171 CLR 30.
[49] Marotta [42] – [45] (citations omitted).
The issues to be determined
In light of the accused's admissions and the agreed facts, the issue at trial was whether the evidence as a whole, but with particular reference to the expert evidence, established on the balance of probabilities that the accused was not criminally responsible for the murder of the deceased on account of unsoundness of mind. That issue requires the determination of the following matters:
(1)Was the accused mentally impaired at the time that he killed the deceased?
(2)If the accused was mentally impaired at the relevant time, did his mental impairment deprive him of one of the capacities referred to in s 27(1) of the Criminal Code, relevantly, the capacity to know he ought not to do the act?
As I have already noted, as a question also arose on the expert evidence as to whether the accused was deprived of the capacity to control his actions, I will consider that issue.
It was not in dispute that, at the relevant time, the accused suffered from a mental impairment. As will appear from the agreed facts and in my discussion of the evidence, that conclusion is well supported by the evidence presented at trial.
The question of whether the accused was deprived of a relevant capacity requires consideration of what is known of the circumstances in which he killed the deceased, the evidence concerning his mental state leading up to and immediately after the incident, and the opinions of Dr Brett and Dr Pascu as to the accused's mental capacity, based on that evidence and the surrounding circumstances and on their interviews with the accused.
The evidence
Although the State relied on the Statement of Agreed Facts, it also tendered a large volume of material, including a substantial part of the prosecution brief, which was received as exhibit 7. Materials that are relevant to my findings of facts will be referred to in the course of these reasons as they become relevant. It is sufficient at this stage to summarise the categories of materials tendered. Some of the statements of witnesses were redacted to remove material that was irrelevant. I have only had regard to those parts of the prosecution brief tendered at trial, not to the original prosecution brief filed with the court.
The materials tendered by the State from the prosecution brief included:
(1)Statements of witnesses who were residing at the residential unit complex where the accused was residing;
(2)Statements of witnesses who were colleagues of the deceased at Neami National;
(3)Statements from the accused's father and sister;
(4)Statements of police officers who were involved in the arrest of the accused and enquiries conducted as part of the investigation;
(5)The post-mortem examination report in respect of the deceased provided to the Coroner;
(6)Toxicology reports in respect of samples taken from the deceased and from the accused after the incident;
(7)Documents that were located in the accused's residence during the investigation after the incident;
(8)Medical notes from the Frankland Centre at Graylands Hospital relating to the accused's admission there on 8 October 2018 after he was arrested;
(9)The statement of material facts and a letter from the accused to the court in respect of the accused's conviction and sentencing on 30 January 2017 for the offences of making a threat to unlawfully kill another and aggravated grievous bodily harm (the circumstances of aggravation being that the victim was over the age of 60 years); and
(10)The transcript of proceedings in respect of the sentencing on 30 January 2017, which was received separately as exhibit 5.
The State also tendered a recording of a telephone conversation between the accused and his father after he was arrested (exhibit 4A) and a transcript of that telephone conversation (exhibit 4B). It also tendered a table of telecommunication records showing communications by text message and telephone calls between the deceased's telephone and the accused's telephone from 5 September 2018 to 6 October 2018 (exhibit 8A, with a guide to information in that table received as exhibit 8B).
The defence tendered:
(1)the reports of Dr Brett and Dr Pascu dealing with the issue of whether the accused was of unsound mind at the time that he killed the deceased (exhibits 10 and 13 respectively);
(2)a large bundle of medical records concerning the accused's psychiatric history which were part of the prosecution brief and were relevant to the accused's case in respect of the insanity defence (exhibit 9);
(3)a bundle of statements that were referred to by Dr Brett in preparing his report (exhibit 12);
(4)a chronology of the accused's psychiatric history (exhibit 15); and
(5)a bundle of further medical records relied upon by the defence (exhibit 16).
The chronology, which was received as exhibit 15, did not include any additional evidence, but was a helpful identification of relevant aspects of the various medical records in chronological order.
Finally, during the course of the cross‑examination of Dr Pascu, the prosecutor referred to notes made by Dr Pascu during her interview with the accused on 19 June 2020 to assess his mental fitness to stand trial. That aspect of the cross‑examination and the notes concerned what the accused had said on 19 June 2020 about the events leading up to and including the incident in which the deceased was killed. The State subsequently tendered Dr Pascu's notes (exhibit 14).
The facts relevant to the alleged offence
Approach to finding the facts
The significant volume of material tendered by the parties was not intended simply to provide a foundation for the Statement of Agreed Facts. It was intended also to supplement that statement, to enable me to make findings of fact beyond the Statement of Agreed Facts to the extent I consider it necessary to do so. Upon examining that material, it became apparent that some aspects of the Statement of Material Facts did not adequately identify the context of some of the statements attributed to the accused to various medical professionals. In one respect, I was of the view that the 'fact' stated was not correct. Further, I considered that there was information that was not included in the Statement of Agreed Facts concerning the incident in which the deceased was killed, being the observations of neighbours of the accused, which was important to take into account. All of those matters were raised with counsel for both the State and the accused during the course of closing addresses.
The Statement of Agreed Facts and a number of witnesses' statements (tendered without objection) refer to things said by the deceased to various people. That evidence was tendered on the basis that I could take into account the factual (i.e. testimonial) content of what was said by the deceased, notwithstanding the rule against hearsay evidence. Some of that evidence may have been admissible on the basis that it falls into a category that is an exception to the hearsay rule or because it was tendered on a basis other than for the truth of what the deceased said. For instance, at least some of what the deceased said to people who attended to her after she was injured by the accused might have been received into evidence as dying declarations, as it appeared the deceased believed she was going to die.[50] Other parts of the evidence may have been admissible as evidence going to establish, by inference, the nature of the relationship between the deceased and the accused, or the deceased's intentions.[51] However, it is not necessary to resolve those questions, as there was no objection to my use of the deceased's statements for their testimonial content. I note that the opinions of Dr Brett and Dr Pascu, which form part of the accused's case, rely in part on things said by the deceased in determining the true nature of the relationship between the accused and the deceased.
[50] Exhibit 12, D25 (statement of Jodie Jane-Marie Williams) [20], D56 (statement of Casey Boshier) [36]. R v Woodcock (1789) 1 Leach 500; 168 ER 352; R v Hope [1909] VLR 149; R v Golightly (1977) WAR 401 (Owen J).
[51] Walton v The Queen (1989) 166 CLR 283; T (a Child) v The Queen (1998) 20 WAR 130.
What follows are the facts that I find established by a combination of the Statement of Material Facts and my assessment of the materials tendered into evidence, which will form the factual background against which I will consider the evidence of Dr Brett and Dr Pascu. To the extent that I have relied on the Statement of Agreed Facts, I have sought to convey the substance without necessarily following the wording in that statement. Where I have made findings additional to the agreed facts or I consider the agreed facts to be incorrect or incomplete, I have said so. I have not included references to the sources of the facts in the Statement of Agreed Facts except where there are direct quotes or where there is some particular significance to the particular source.
Background
The deceased was 50 years old. At the time of the alleged offence, the accused was 37 years old.
The accused has a well‑established diagnosis of schizoaffective disorder. He has been well known to mental health services since he was 19 years old and, prior to the incident the subject of the charge, he had been admitted to psychiatric units in hospitals as an inpatient on multiple occasions, on both a voluntary and involuntary basis. He had also been treated on an involuntary basis in the community on a Community Treatment Order.
Over the history of his mental illness, the accused has been treated with a variety of oral and injectable antipsychotic medications. He functioned at a reasonable level within the community when well.
The deceased was employed as a Mental Health Community Support Worker by an organisation called Neami National (Neami) which had offices in Mandurah and Rockingham, amongst other places. Neami provides rehabilitation and recovery support to people experiencing mental illness who require assistance in the areas of skill-development and social contact.
The deceased's role in the organisation was to provide support to clients of Neami, to assist them to live a fulfilling life in the community. She did so by providing group support, therapeutic support, one‑on‑one counselling and coaching and mentoring in relation to life skills.
The deceased had previously worked for about six years for a similar organisation, which merged with Neami in 2017. She had become an employee of Neami as a result of that merger.
The accused first became involved with Neami in February 2018 when he 'self‑referred' to Neami's Rockingham office after seeing a presentation by the deceased about Neami's services. That presentation was given at a Rockingham Kwinana Mental Health Service facility with which the accused was engaged at the time.
The accused was registered as a client and the deceased was assigned as his 'key worker', which I understand to mean that she was the Neami staff member primarily responsible for providing support to the accused. She conducted a risk assessment of the accused for Neami after he registered.
The accused said he had previously been diagnosed as having bipolar disorder with depression, but, at the time of the risk assessment, he was considered to be well on the way to recovery. The accused reported that he had attempted to harm himself in the past, but there was no indication given to the deceased of recent self‑harm by the accused or violence or aggression by him towards others. The State Manager for Neami, Glenys James, said in her statement that the accused was classified as 'low risk as there was no records of any violence or aggression'.[52] That assessment, of course, was in the context of Neami providing him with services. However, as Ms James also stated, Neami is not a diagnostic service,[53] and it appears that Neami did not seek and was never provided with any official diagnosis from a medical practitioner regarding the accused's mental health issues.[54]
[52] Prosecution Brief (PB) 48 [21].
[53] PB 48 [24].
[54] PB 121 (statement of Monique Holland) [71].
The deceased conducted a further risk-assessment of the accused in July 2018. She arrived at the same 'low‑risk' rating.
On 28 August 2018, the deceased advised her work colleague, Tiana Divich, of a conversation she had with the accused in which he disclosed that he liked the deceased and had feelings for her.[55] Ms Divich was a Senior Practice Leader and assistant manager to Monique Holland, the Service Manager. The deceased was aware that the matter would have to be reported to management and that she would not be able to continue to be the accused's support worker. The matter was in fact taken up by Ms Divich with Ms Holland the same day.[56] The decision was made to change the support worker for the accused.[57] The deceased was subsequently replaced in that role by a male colleague. When Ms Holland spoke with the deceased about the change the following day, 29 August 2018, the deceased said she had spoken with the accused about it and he was 'fine with swapping to another support worker'.[58]
[55] PB 108 - 109 [38] - ]39]. A file note attached to the statement of Glenys James (PB 58) suggests the disclosure by the deceased occurred on 27 August 2018. The discrepancy was not explored at the trial, but nothing turns on the difference of one day.
[56] PB 109 [43] (statement of Tiana Divich); 125 - 126 [117] - [119] (statement of Monique Holland).
[57] PB 126 [119] ‑ [123].
[58] PB 126 [123] - [124].
The deceased later spoke with two other colleagues, Kate Rimmer and Monique Rossouw, about the incident in which the accused disclosed his feelings for her.
The conversation with Ms Rimmer occurred on 2 October 2018. The deceased asked Ms Rimmer if she had heard about the situation between her and the accused. She was concerned that there was a perception that she was giving more time to the accused than to other clients, which upset her. She told Ms Rimmer of the occasion when the accused disclosed his feelings. She said the accused had told her he had noticed her and had felt something for her since he saw her at a talk she had given. She told Ms Rimmer that she informed the accused that she was flattered, but that she did not feel the same way about him. She said she informed the accused that she would have to tell management, and that the likely outcome would be that she would be replaced as his support worker. She said the accused had 'understood'.[59]
[59] PB 130 ‑ 131 [17] ‑ [24].
The deceased spoke to Ms Rossouw about the incident on 3 October 2018. That conversation occurred in the context that the accused had left a drumming group early and had told Ms Rossouw that he was 'not travelling well', although he also expressed his dislike for the facilitator of the group.[60] Later that afternoon, Ms Rossouw asked the deceased what was going on with the accused. By that stage, the deceased had been replaced as the accused's support worker. She said that the accused had not been answering any text messages that she had sent him.
[60] PB 137 [23] ‑ [37].
The deceased told Ms Rossouw that a male colleague was now the accused's support worker, because the accused had disclosed feelings for her. She said the accused had told her he loved her and that he wanted to kiss her. That had caused the deceased to become red with embarrassment. The deceased told Ms Rossouw that she had explained to the accused about professional boundaries and the nature of her role. The deceased told Ms Rossouw that the accused 'argued who's the system or Neami to tell him who he loves' and 'he could not help who he loved'.[61] The deceased said that the accused was not arguing with her; rather, it appeared to be a comment on 'the system'.[62] She said that the accused had suggested that he would leave Neami so that he could see the deceased privately. The deceased said she had advocated against that course, because of the progress the accused appeared to be making whilst engaged with Neami. I infer from the context that the deceased meant she had pressed those matters on the accused, to dissuade him from leaving Neami. When asked by Ms Rossouw if she felt comfortable about the accused coming to groups (which I infer to mean groups in which the deceased was involved), the deceased said she was 'more than comfortable' and that the accused 'seemed together and was very mature about [it]'.[63] She said she was still concerned for his welfare.[64]
[61] PB 139 [55].
[62] PB 139 [56].
[63] PB 140 [59] – [60].
[64] PB 139 [61].
There is a consistency in the accounts given by the deceased to her colleagues, and there is nothing to suggest I should not accept those accounts as truthful. The deceased acted professionally and took the necessary steps to bring the matter to the attention of management and to ensure that the accused understood she could not continue to be his support worker. However, she also encouraged him to continue to receive support from Neami and she continued to be concerned for his well-being.
I am satisfied, on the basis of what was said by the deceased, that the accused had genuine romantic feelings for her, and that, although he indicated a preparedness to leave Neami in order to be able to pursue a relationship with the deceased, she made it clear to him that the romantic feelings were not reciprocated. I am satisfied that, at that stage, the accused responded in a manner that suggested he was 'together' and 'very mature about it'.
The evidence does not establish precisely when it was that the accused disclosed his feelings and was told by the deceased that she did not feel the same way. However, it was before 28 August 2018, which was the date the deceased told Ms Divich about it. The evidence suggests that it was at the same time the accused disclosed his feelings to the deceased that she told him she did not feel the same, that she would have to report the disclosure and that she would have to be replaced as his support worker. What is clear is that the discussion in which the accused said he would be fine with the change of support worker occurred before 29 August 2018, being the date on which the deceased told Ms Holland about it. I conclude, therefore, that the accused's seemingly 'together' and mature response, as it was perceived by the deceased, occurred at that time - i.e. at the end of August 2018.
As will appear below, although the accused had reported some psychotic phenomena in July and August 2018 when he attended for psychiatric assessment, he had generally indicated he was feeling well. At an assessment on 10 September 2018, he said he had been well the previous two months. Therefore, it was during a period when the accused was relatively well, that he disclosed his feelings for the deceased and appeared to be 'together' and mature when told that his feelings were not reciprocated by the deceased, and that he would have to be allocated a different support worker.
The accused did not take exception to the allocation of a new support worker in place of the deceased. According to his new support worker, the accused appeared to be happy with him, in fact saying that he was glad it was him.[65]
[65] PB 146 [43].
However, by the start of October, the accused's circumstances in respect of his mental health and his ability to cope had changed, and it appears that, despite the deceased making it clear to him that she did not have romantic feelings for him, he harboured a belief that she would reciprocate his feelings and they could have a romantic relationship.
Approximately two weeks before the deceased's death, the accused rang his father and told him that he wanted to buy a ring for a woman.[66] He did not say who that woman was. However, after the accused was arrested in this matter, he told his father that the deceased was 'the girl I let you know about last, a couple of weeks ago'.[67] When asked by his father what age she was, the accused said 'fifty', which was the deceased's age.
[66] PB 161 [35].
[67] Exhibit 4, p 4.
Further, when police searched the accused's home, they found a number of handwritten documents,[68] one of which was a short note that included the entry, 'Propose to Jacqueline'[69] (which was the deceased's first name). That entry was the third of three numbered lines, the first being 'Car' and the second being 'Engagement and wedding set'. The numbers were in circles. The first and second were shaded in; the last (concerning the proposal) was not. On its face, it appears to be a list of things the accused intended to achieve (a 'to do' list), and that the first two were done, leaving the last. It is at least consistent with what he had told his father a couple of weeks prior to the killing of the deceased, namely that he intended to buy a ring for a woman. However, there is no evidence that he had actually bought a ring. The police found an empty small jewellery box in the accused's home,[70] but it would be speculative to conclude that it was related either to the note or to what the accused had said to his father.
[68] PB 232 - 264.
[69] PB 258.
[70] PB 265.
Among the handwritten documents found by the police were other notes and letters that were referred to by Dr Brett and Dr Pascu in their evidence, and it is convenient to deal with them at this stage in terms of what light they shed, if any, on the accused's feelings and motivations leading up to the killing of the deceased. There is no evidence as to the provenance of the writing, but it all looks similar, and considered in the context of the whole of the evidence, there is a compelling inference that the notes and letters were written by him. That was the assumption made by Dr Brett and Dr Pascu. Although the accused did not give evidence, it was not suggested on his behalf that any other reasonable inference was open.
Among the documents were lists of romantic ideas and inspirational love quotes.[71] There is no evidence of when they were written, and the contents do not allow for any inference to be drawn in that regard. They may well pre‑date the accused's first encounter with the deceased. There is evidence in the psychiatric history, to which I will return, of a past romantic obsession with another woman, although that person may not have been real. In the documents found by the police was a letter addressed 'Dearest Angel', which is in the nature of a love letter and is dated 5 January 2016.[72]
[71] PB 232 - 238, 244 - 245.
[72] PB 242 - 243.
There was also a note that could be described as an ode to a woman for whom he had romantic feelings, which commences with the line, '"Be patient" - she said, and I listen …' and goes on to describe the depth of his feelings for her and the existence of 'chemistry'.[73] It describes the woman as 'so understanding also compassionate with me' and expresses his gratitude 'for who she is'. It goes on (original grammar):
Worlds collide that they well and truly could, should, would … dare I say or think and I do, this private world of mine.
For her it's not about money or material things she said. For me its not and I know these things will come to be.
She didn't look back, neither did I can't turn back, time is a window. I truly accept her. The moment I saw her I knew in my mind what will be, she said I won't be there forever, and its (sic) true. Anything can happen in a day you can fall in love in a day. "Chemistry, whoa! The depth of my soul she'll know."
I could go on forever.
[73] PB 257.
At the bottom of the document is the acronym 'FEAR' with the words alongside: false evidence appearing real. There is also a quote stating: 'The best lesson you can master is learning to remain calm.'
There is no evidence as to when the note was written. While there are aspects of the description of the woman that appear to correlate with the deceased's character, and the notion of 'love at first sight' appears to correlate with what the accused said to the deceased about his feelings for her, in the absence of evidence as to when it was written, I cannot draw the inference that it relates to the deceased, let alone that it was his frame of mind at the time he killed the deceased. Even if the note did relate to the deceased, in the absence of any evidence of the circumstances in which it came to be written and the accused's state of mental health at that time, I would not place any reliance on it to the extent that it attributes statements or behaviour to the deceased, as it is not possible to know if the events he describes are real or imagined. At most, it would indicate the depth of his feelings for the deceased and a belief that anything could happen between them.
The handwritten documents found by the police also included what appears to be a proposed budget which makes allowance for an engagement ring, a wedding ring and the cost of a wedding.[74] It appears to be written on a diary page for Saturday, 18 February 2017, but there is no evidence as to when it was written. There is a separate note written on a diary page for Sunday, 17 December 2017, which includes the words: 'While your (sic) saving write my proposal only - simple vow'.[75] There is also a reference to an engagement ring. However, again, there is no evidence as to when it was written, although there is a signature at the bottom of the page with the year 2017. On that basis, it appears to pre-date the occasion when he first met the deceased, which was at an Intensive Day Therapy Unit held at the Rockingham/Kwinana Mental Health Service on 29 January 2018.[76] What it shows, however, is a pre‑existing plan to be married.
[74] PB 262.
[75] PB 263.
[76] PB 106 (statement of Tiana Divich) [17] – [19].
Finally, there was a document on which the first line was 'Send photos of rediscovering yourself group through to Jacqueline's email'. The balance of the contents of the page appear to relate to steps he was taking in respect of his self‑care, which appear to be part of what he had learnt in the group. It is reasonable to infer that 'Jacqueline' is the deceased. However, the reference to sending photos to her email, in context, is innocuous, and does not shed light on what was happening immediately before 6 October 2018.
There is other evidence that the deceased and the accused were in regular contact while she was his support worker, and that the contact continued after she ceased to be his support worker, which is consistent with her indication that she remained concerned for his wellbeing.
As part of the investigation, police accessed the data on the deceased's work phone. The contents revealed that regular messages had been exchanged between the accused and the deceased starting on 10 April 2018, the last exchange being around 1.00 pm on 3 October 2018. The messages were friendly in tone, but were substantially work-related. None of them displayed sentiments from either party that were either obviously romantic or obviously hostile.
Police also retrieved telecommunications data which suggested that, from early September 2018, the accused would often call the deceased on her home phone, and she would call him back on his mobile phone from her home phone. The deceased would also sometimes call the accused from her work mobile phone.
I return now to the events leading up to 6 October 2018, as noted by staff at Neami.
Until October 2018, staff had noted that the accused attended programmes regularly and diligently at Neami. However, on 1 October 2018 he failed to attend a group for 'hearing voices'.[77] When he was contacted by one of the workers, he said he did not attend because he was tired.[78]
[77] PB 52 (statement of Glen James) [52].
[78] PB 52 [52].
As I noted earlier, on 3 October 2018, the accused left a Neami group drumming session early, telling Ms Rossouw he was 'not travelling well'. According to Ms Rossouw, when she spoke with the accused as he was leaving, he had 'a weird stare with a blank look on his face like he was becoming unwell.'[79] I note, however, that the accused told Ms Rossouw that he would come to a social event later in the day and they could take a walk and he would talk to her then. It appears that did not eventuate.
[79] PB 138 [38].
When Ms Rossouw spoke with the deceased about the accused on the afternoon of 3 October 2018, the deceased indicated that the accused had not answered any text messages she had sent him. The context suggests that she was referring to recent attempts to contact the accused. In any event, the accused's failure to respond to text messages was out of character.[80]
[80] Exhibit 2, [30].
On 4 October 2018, the deceased told the accused's new support worker that she had tried to call the accused several times that day, but he did not answer.[81] The support worker subsequently called the accused that day, to check on him. The accused said that he was in pain and 'couldn't hide [it] anymore and couldn't put on a brave face'.[82] He said he had a 'sore shoulder/back' and he 'sounded down'.[83] He acknowledged the reassurance given to him that everyone was 'there for him' and cared for him, and said he knew that.[84] He said he would try to attend a social group to which he was invited by the support worker for the next day, but he did not attend.[85]
The accused's declining mental health leading up to 6 October 2018
[81] PB 146 [46].
[82] PB 51 (statement of Glen James) [48].
[83] PB 147 [48]. The Statement of Agreed Facts (exhibit 2) states that the accused 'did not specify what he meant by pain or where the pain was'. That information is from the statement of Ms Glen James (PB 51 [49]). However, she is there referring to hearsay from the accused's new support worker in respect of the telephone call. The support worker does not say that in his statement. He says the accused referred to a 'sore shoulder/back'.
[84] PB 147 [49].
[85] PB 147 [50] – [52].
I will deal with the accused's psychiatric history in detail later. However, as part of the background to the incident in which the accused killed the deceased, it is necessary to outline briefly what was occurring in respect of the accused's mental health during the course of 2018 prior to 6 October 2018, the day on the deceased was killed. In brief, while the accused's mental illness appeared to be in remission less than one month before the incident, his mental state started to deteriorate in the week or so leading up to the incident.
The medical records show that during 2017 the accused's mental health fluctuated, from periods when he was considered to be doing very well to periods when he was suffering the acute onset of psychotic symptoms, usually in the form of disturbing auditory hallucinations and paranoia. His relapses appear to have been related at times to changes in his medication. His mental deterioration culminated on 3 December 2017, when he was admitted to the Rockingham‑Kwinana Hospital after cutting his own neck while harbouring suicidal thoughts. During January 2018 he was assessed to be suffering acute psychotic symptoms, including delusional beliefs about being raped. From time to time he expressed concerns that he would harm himself. It was noted on 24 January 2018 that the accused had a history of violence when mentally unwell.
However, integrated progress notes from the Rockingham‑Kwinana Hospital in May 2018 indicate that the accused's mental health had improved, and by 3 July 2018, it was considered his psychotic illness was in remission. His anti‑psychotic medication was changed by reducing the dose of one of the drugs he was taking orally. On 2 August 2018, he reported experiencing some 'telepathic type voices' which were 'still annoying him at times, but not much'. However, when he attended the hospital again on 10 September 2018, he reported that he had been feeling well the last couple of months. The attending doctor, Dr Simovik (who appears to have been the accused's treating psychiatrist at the Rockingham and Kwinana Adult Mental Health Service), noted: 'Nil safety concerns.' The dosage of the accused's anti‑psychotic medication was again reduced.[86]
[86] PB 2255 – 2256.
An entry made in a Rockingham and Kwinana Adult Mental Health Service client management plan dated 14 September 2018 recorded that the accused had been noted by Dr Simovik to have a borderline personality structure. It further noted:[87]
When well Shannon is pleasant and polite however due to risk to staff when unwell, Shannon is not for home visits.
[87] PB 373.
There is no indication that Neami was made aware of that recommendation.
It will be recalled that the accused failed to attend a 'hearing voices' session on 1 October 2018. The following day, on 2 October 2018, at 3.16 am, he called his father and said he could not sleep.[88] Later that day he spoke on the phone with his sister. She noticed that he 'appeared distracted and his train of thought was disjointed'.[89] She suggested to him that he attend the Rockingham Hospital Emergency Department, as she believed he was unwell.
[88] PB [34].
[89] PB 167 [31].
The accused did in fact attend the Rockingham Hospital Emergency Department at 9.04 pm on 2 October 2018. He presented with auditory and visual hallucinations, which were worsening.[90] The clinical record for that hospital visit relevantly includes the following:[91]
Presenting problem:
Hallucinations – auditory. Onset several years ago. Same worsening. History of Bipolar. Reports feeling exhausted and doesn't know what to do about it.
Clinical assessment:
Hearing more prominent voices.
Recently has had tapering doses of Amisulpride per agreement with psychiatrist
[90] PB 1599 – 1603, 1606.
[91] PB 1599. As will appear later, Amisulpride was the anti-psychotic medication the accused was taking orally.
The accused was discharged home after discussion about his medication. It does not appear that any change was made to the dose at that stage.
On 4 October 2018, the day after he left the drumming session early, the accused was contacted by telephone by his case manager[92] at the Rockingham and Kwinana Mental Health Service, who called to 'check‑in'. The call was made at 3.00 pm. The case manager made a note of the conversation. The accused said he was 'not in a good place', referring to a lack of energy and feeling as though it was hard to move around, which he related to his 'physical health (bulging disc in [his] back causing pain)'.[93] He said he had been in bed all day, and that the pain was so bad that he did not know if he could leave the house to attend his appointment the following week for the depot medication he was receiving in addition to the oral medication. He also said he had made a telephone call to Dr Simovik. The note records that there was 'underlying agitation present throughout phone call', which I take to be a reference to the phone call with the case manager, not with Dr Simovik.[94] The accused said he had been drinking three to four glasses of wine 'the last few nights', which he said helped him to calm down.[95] He also that he felt the current medication was not 'holding him'.[96]
[92] PB 2255 – 2256. The author of the note has used the initials 'SW' after her name where she has signed, which suggests she is a social or support worker, and appears to refer to herself as 'CM' in the body of the notes. The fact that she was the accused's case manager is confirmed in notes made on 5 October 2018 by a staff member attending to the accused at Rockingham General Hospital.
[93] PB 2255.
[94] PB 2255.
[95] PB 2255.
[96] PB 2255 – 2256.
A further progress note records that the case manager subsequently telephoned Dr Simovik to discuss the accused's situation, and Dr Simovik said the dosage of the anti-psychotic medication that had been reduced could be increased, but the accused was to abstain from drugs and alcohol.[97] The case manager advised the accused the same day of Dr Simovik's advice. That phone call was at 3.45 pm. The accused said he was glad he could increase the dose. He said he 'may agree to attend the clinic' the following day.
[97] PB 2256.
The following day, 5 October 2018, being the day before the deceased was killed, the accused presented to the Rockingham Hospital Emergency Department at 1.02 am, complaining that he saw bugs moving round inside his neck and he believed he had an 'insect manifestation'.
The Mental Health Assessment Form completed by the Psychiatric Liaison Nurse[98] summarises what took place as follows under the heading 'History of Presenting Problem':[99]
Self-presented to ED at 1.02 hrs with concerns for his physical health. He reported that something was in his throat and in his abdomen crawling around. He believed this was infestation and wanted to cut his throat at home. He asked Dr Thomas to cut his throat so that infestation could be seen.
Shannon was agitated, triage nurse had documented he was responding to unseen stimuli in the waiting room, laughing and talking to himself.
When his mental health was discussed he became very agitated and refused to engage further raising his voice to direct staff to his perceived physical health needs.
Security called for assistance however he accepted oral medications Lorazepam 2 mg and Olanzapine 10 mg which settled his agitation and he slept following his assessment.
[98] PB 1586. The title is abbreviated on the form as 'PLN'.
[99] PB 1586.
The clinical assessment section completed by the triage nurse includes the following additional information in respect of the 'thing' he said was crawling in his throat:[100]
This same 'thing' is speaking to him and telling him nasty things.
Finds it difficult to concentrate.
[100] PB 1572.
As to the unseen stimuli, the triage notes say:[101]
Appears to occasionally respond to auditory hallucinations.
[101] PB 1572.
The psychiatric liaison nurse who completed the summary referred to at [122] above also completed a more detailed Mental Health Assessment form[102] in which she which referred to the fact that he had a 'psychiatric history from 2006 including forensic mental health services', and that he had been diagnosed with schizo‑affective disorder and underlying borderline personality structure. She also referred to the fact that the accused had a 'history of assaulting staff and family members when unwell'. She noted, consistently with what had been said on 14 September 2018 that the accused was 'not for home visits in the community'.[103]
[102] PB 318 – 321.
[103] PB 319.
The author of that Mental Health Assessment also referred to the accused's history of polysubstance abuse, including alcohol, cannabis and methamphetamine, but noted that the accused 'denies current use'.[104]
[104] PB 319.
As to his conduct when he first presented, the author reported the following additional information in relation to the fact that the accused appeared to be hallucinating:[105]
Noted to be pacing and responding to unseen stimuli in the [Emergency Department] waiting room, agitated and at times hostile in manner. Tense with difficulty following conversation.
[105] PB 321.
It was further reported that his voice was raised on occasions, for which he later apologised. His somatic delusions (i.e. the belief that there were things crawling inside him) were described as psychotic symptoms were described as 'prominent with intrusive thoughts to cut himself'. His auditory hallucinations were described as 'command in nature', although there is no reference to the content of those hallucinations that would indicate they were in the form of commands. As I noted at [123], he said the voices were telling him 'nasty things'.
The accused was given a sedative and fell asleep. He stayed in the Emergency Department overnight and was more settled in the morning. He was reviewed by the community team and advised to gradually increase the dose of his antipsychotic medication.
At 8.00 am on 5 October 2018, the following relevant entries appear in the accused's progress notes:[106]
Denies current [drug and alcohol] misuse.
Shannon described longstanding delusions about parasitic infestation, worse in the past 4 days. He reported poor sleep in the last 4 days, anxious.
…
Denies hallucinations.
Denies suicidal and homicidal ideation.
…
Had olanzapine 10mg and lorazepam 2mg last night with good effect. States he feels much better today and is keen to go home.
[106] PB 322 ‑ 323, 1581 ‑ 1582.
The author noted that the accused had an appointment with the Rockingham and Kwinana Mental Health Service at 10.00 am that day. The notes go on to reiterate some of the information in the first section in a section headed 'MSE' (i.e. mental state examination). In that section, the author noted in respect of the accused's speech that it was of 'normal rate, tone, volume and coherent'.[107] The accused described his mood as 'okay'. The notes go on to say:[108]
States there might be parasites in his throat and stomach but feels much better since being given meds in Emergency Department. Nil other delusions.
[107] PB 1581.
[108] PB 1582.
The author went on to say that the accused had 'fair insight and judgment', in that he was able to accept that he had a mental health illness, and was agreeable to take his medication and engage with community services. The accused was assessed with having had a relapse of his schizo‑affective disorder. The author added, 'possibly [in the context of] drug use'. However, there is no evidence that the accused was using drugs at that time. The author identified the risks as follows:
(1)Chronic risk of harm to self, given personality structure. Acute risk low at present.
(2)Risk of harm to others – low.
The note concluded with the plan to discharge the accused, and that he was to follow up with the Rockingham and Kwinana Mental Health Service. Accordingly, the accused was discharged home.
Dr Pascu's analysis of the accused's psychiatric history was similar to Dr Brett's, noting the same parallels between past acute psychotic relapses and what was occurring to the accused leading up to 6 October 2018. She, too, referred to the evidence of the accused's presentation when he was admitted to the Frankland Centre and for a period afterwards, as confirming the fact that he was mentally very unwell at the time of the alleged offence. Given the concurrence of opinions, I do not propose to review all of Dr Pascu's evidence on those matters. It is sufficient to refer to two parts of her evidence in which she spoke about the accused's account of his perception of the effect of the medication he was prescribed and what occurred on 6 October 2018.
Dr Pascu said in respect of the accused's account of the effects of the changes in his medication:[181]
He talked about – he was more focused on the fact that his oral antipsychotic medications were being reduced but also when I asked him about his history of medications or previous treatments he talked about the injectable slow-release antipsychotics, the depot, and he did mention that late - 2017 there has been a change in his depot injection from the paliperidone to the Abilify. He didn't seem to – I was more concerned about that than he was. Mr Smith was more worried about the gradual reduction of his oral antipsychotic. I was more worried about the – the injectable antipsychotic, because from my experience, paliperidone is probably a more potent antipsychotic, in my experience. It does have more side effects. And Abilify is – it has less side effects, but in my experience, it's less of a – it's less strong than the paliperidone. So in my mind, probably the change of the depot, which was late 2017 by the sounds of it, I think that might have contributed to a start in the deterioration of his mental state. And kind of looking at the information after that it made sense, because he was started on additional oral antipsychotic. We usually start on oral antipsychotic when we feel that the injectable is not working properly, or is not strong enough. So I can understand the change from the paliperidone to the Abilify, because of side effects, but sometimes we have to balance the benefits of the medication and the side effects, and try and work on people trying to accept some of the side effects if they're not too severe.
So you've spoken about Mr Smith's description of the reduction in his medication? ---Yes.
But just want to ask you this: having reviewed the medical records, is the reduction – the change in the antipsychotic and the reduction in the amounts of oral antipsychotic consistent with what you've read in the medical records? --- Yes.
[181] Ts 137.
In relation to the possible precipitant for the accused's relapse in 2018, Dr Pascu said:[182]
It could well be the change of his long-acting injectable antipsychotic at the end of 2017 might have had something to do with that.
And clearly some change was noticed by the treating doctors, because they added the oral antipsychotic to probably try and make up for the change in the injectable antipsychotic. And then, like, looking as an outsider, clearly the combination of the new antipsychotic and the oral antipsychotic did help, because he appeared to be quite settled months before the offence.
Are you talking about the first half of 2018? --- The first half. Yes. The first half of 2018. And then unfortunately, I think, it was July 2018 when the – the Amisulpride oral dose was halved, and then in September even that dose was halved. So it – it seems that the reduction of the overall dose of an antipsychotic, the combination of depot and oral medication, in my opinion, significantly contributed to the deterioration.
[182] Ts 152.
In relation to the accused's account of events on 6 October 2018, Dr Pascu said:[183]
During [the interview in February 2019] it seemed to me that there was a deterioration in the voices becoming probably – not more frequent, but the quality of them, quite some time before the offence occurred, and this is where, in my thinking, the change of the injectable probably contributed to that. Then he – he did tell me that leading up to the offence, there was, in his view, a few week deterioration in the voices in what they were telling him. They were telling him that it will take care of itself, killing prophecy. He told me that they were really getting bad and the – the voices seemed to come out of objects, kettles. He heard the tree spirits saying, 'O'. I don't know what is. I – I remember I did ask him, but he couldn't explain it to me. He did say that he wasn't really sure what was all that about, but definitely he was becoming more unwell. He didn't recall specifically the voices telling him to hurt the victim, but he did say that it was very – he described, like, a chaos in his mind leading up to the offence. He said that the voices were just – just building up, saying things over and over and over, that things would take care of themselves, and something to do with killing prophecy.
Did he explain – so 'killing prophecy': did he explain what he meant by that? --- No.
Did you ask him? --- I did ask him, because it kept coming up, and I did ask, 'What does that mean?' And he said he's not sure, but the voices kept saying that to him. He interpreted the voices as telling him to do things. When I asked him about, 'Well, were they telling you to kill the prophecy?' He said that he didn't know. He did describe becoming increasing distressed by the voices, and he – although he was planning to continue to attend his groups, which he really enjoyed, at Neami, he said that he was unable to attend. He described this pain, which then I saw that his – he had had the two presentations to Rockingham ED. He talked about pain. When I asked him, 'Are you talking about your back pain?' He said the back pain was getting worse as well, but it was this pain that he kept describing. He said that – that's when he told me that he was attracted. So attending this groups at Neami, he talked about the attraction towards the victim, and then he talked about this alleged relationship with the victim.
[183] Ts 138 - 139.
Dr Pascu went on to explain why she had come to the conclusion that the accused had incorporated the deceased into a delusional system.
As did Dr Brett, Dr Pascu considered that the accused's telephone conversation with his father while at the Watch House confirmed the accused was mentally unwell, given the inappropriate focus on the delusional physical issue of an infestation.
Dr Pascu gave evidence that the precipitant for the accused's psychotic relapses was not always known. She said that apart from drug use or changes in medication, stressors could also bring on psychotic symptoms in a person with schizoaffective disorder.
The effect of the mental impairment at the time of the offending
Dr Brett said that he had no doubt that the accused had a major mental illness at the time of the alleged offence, and his history is consistent with the illness being chronic schizoaffective disorder.
In terms of the impact of the illness on the accused at the time of the alleged offence, Dr Brett expressed his opinion on the basis of the accused's account to him, which I have referred to above. He said that the accused became infatuated with the deceased and, although they had a very good therapeutic relationship, and she felt that she could help in his recovery, it seems that the accused incorporated her into his delusional system:[184]
He became afraid of her. He believed that she carried a gun, and that her ex-husband was a murderer. He also described that his thoughts were chaotic, and in a sense this sort of pandemonium, and this has been referenced in literature as a sort of delusional atmosphere, almost a feeling that something bad was going to happen, and I think that was referenced in another witness statement, possibly the deceased's statement, that she was concerned that something bad was going to happen to him. I think he was experiencing that kind of phenomenon as well, which was related to his psychosis.
[184] Ts 91 - 92.
In terms of the auditory hallucinations, Dr Brett said:[185]
This is what I did my dissertation on, which you referenced at the start, and that is when auditory hallucinations are linked in closely with people's delusions, they're much more likely to act on them. So if they're consistent with their delusional system, so if he thinks someone is bad and then he is hearing voices confirming that the person is bad and telling him to do something, he is more likely to act. Now, he said he was hearing God's voice. Again, if you hear God's voice, then you're more likely to act on that than sort of random, unknown voices. And he also described that there was a prophecy going on, and, again, that sounds like he had some [sort] of religiose delusions happening as well. So it was a sort of imperfect storm, if you like, of psychotic symptoms, and, unfortunately, the victim was at the core of these and was in the wrong place at the wrong time.
[185] Ts 92.
Dr Pascu said that she believed that, at the time of the alleged offence, the accused had 'a mental impairment, which was schizoaffective disorder, with the most recent episode [being] manic mixed affective state with psychotic symptoms'.[186] She was of the opinion that the accused was in an acute psychotic state and that he did not have the capacity to reason that it was wrong to commit the violent act on the deceased.
Whether the accused lacked a relevant capacity
[186] Ts 131.
As to whether the accused lacked any of the relevant capacities under s 27, Dr Brett said:[187]
I believe his mental impairment deprived him of the capacity to know that he ought not do the act, and I believe that was related to his acute psychosis which involved the victim in his delusional system. I think he was fearful of what was happening, he was fearful of the maggots which were infested in – infesting him, and also he was fearful of the deceased.
[187] Ts 92.
Dr Brett did not believe the accused was deprived of the capacity to know the nature of the act he was doing. He said:[188]
I believe that he was aware of the physical act that he was doing, namely harming someone else.
[188] Ts 92.
As to the capacity of the accused to control his actions, Dr Brett said:[189]
I believe that it was highly likely that he lacked the capacity to control his actions. He had a previous history of acting impulsively secondly to his psychotic phenomena. This limb of the insanity defence, I think, is very difficult to prove one way or the other, so I wouldn't rely on that one alone, but it's certainly linked in with that capacity to know you ought not do the act.
…
I would say it's definitely impaired, but to say it's absent is very difficult.
[189] Ts 92 - 93.
When cross-examined on that matter, Dr Brett agreed that the effect of his evidence was that the 'control' capacity was reduced, but not necessarily absent at the time.[190]
[190] Ts 104.
Dr Pascu's opinions in respect of the accused's capacities were similar to Dr Brett's opinions. She was of the opinion that the accused was not deprived of the capacity to know what he was doing. He understood that he caused harm to the victim. However, in Dr Pascu's opinion, the accused was deprived of the capacity to know that he ought not do the act, and that was as a result of his significantly altered mental state leading up to, at the time of and following the alleged offence.[191]
[191] Ts 131.
Dr Pascu was also of the opinion that the accused was likely deprived of the capacity to control his actions, due to the serious mental illness, but, she said that, as had been mentioned by Dr Brett, 'it is very difficult to know the extent of that deprivation'. She said she thought the accused was 'significantly deprived'.[192] I note that Dr Brett referred to significant impairment, in the context of suggesting the accused's capacity to control his actions was reduced, but not absent. In the context of the insanity defence, it is not meaningful to speak of degrees of 'deprivation'. I have understood Dr Pascu to be adopting a similar view as Dr Brett, namely that it is difficult to say there was a total absence of the capacity, but there was likely significant impairment.
Alternative scenarios
[192] Ts 132.
Dr Brett was asked to consider the possibility that the accused disposed of or concealed the knife. He was asked whether that was not inconsistent with his opinion that the accused was deprived of the capacity to know that he ought not to do the act. He said:[193]
No, not substantially, because it doesn't fit in with the rest of the narrative. The fact that he came back to his own unit on his bicycle, admitting that he was Shannon Smith, aware that police were surrounding his unit, is incompatible with a man who has just gone away and hidden a murder weapon. And likewise the phone call to his father wasn't about the offence. It was about his presentation to Rockingham Hospital, which suggests to me this is a man who is thinking more about what's happening to him as part of his psychosis, rather than what happened to the victim. So it was all empowering. It was overpowering for him.
[193] Ts 105.
Dr Pascu also gave evidence that being in a psychotic state would not prevent the accused from acting in a manner that might be designed to prevent detection, knowing what he has done after the event. In any event, as I noted in discussing the law, the question is not whether the accused may have appreciated that what he did was unlawful. The question is whether he knew, at the time that he did the act, that he ought not to do the act.
Related to the issue concerning the concealment or disposal of the knife, both Dr Brett and Dr Pascu were of the opinion that the exercise by the accused of his right to remain silent was not inconsistent with lacking the capacity at the time he did the act to know that he ought not to do the act.
The State noted that the accused had long held a desire to be married, and it appeared that he had fixated on the deceased as the person he wanted to marry. Dr Brett was asked whether he had considered a 'jilted lover' scenario (perhaps more accurately described as unreciprocated feelings). He said:
I considered that scenario, and I looked at the evidence for and against it, and from the information available to me, I believed it was less likely than the psychosis scenario.
And why did you consider that that particular scenario, that Mr Smith was rejected by the deceased lady – or why did you consider that less likely than the psychosis scenario? --- Because I found little evidence to support that hypothesis.
…
So in that regard, are you able to elaborate on what you mean by that, Dr Brett? --- Yes. There – there was some evidence. There was certainly evidence he was infatuated. There was good evidence that infatuation was part of his illness, that he became more infatuated with people when he became unwell. There was the handwritten notes, which preceded his relationship with the victim. There was also some notes which seemed to involve the victim, particularly about marriage and wedding arrangements. Again, some of the dates of those notes were difficult to understand the chronology of them. So it was certainly something I – I did consider. The – the fact that the victim was visiting him at home, even though that was outside of the services arrangement with him, was unusual practice, but again, the evidence I got was that she was a conscientious worker who was concerned about Mr Smith's mental health and that seemed to be her main focus, from the information I was given.
All right. From either the interviews that you conducted with Mr Smith or any of the other collateral materials that you reviewed, was there anything to suggest that he was angry with the deceased prior to the offence date, or wanted to harm her in any way? --- No.
However, when I pointed out the evidence of Ms Gibling, Dr Brett said it would be necessary to know the context of what the accused was doing at the time that he appeared to be angry. He maintained that, on the basis of what the accused told him, the accused was fearful rather than angry.
As I understood Dr Pascu's evidence, she agreed that a person can be psychotic and angry. In fact, as both experts pointed out, aggression was a feature of the accused's psychotic relapses.
On the question of the accused being motivated because the deceased rejected his affections and thwarted his plans to marry, Dr Pascu's opinion was guided by her view that the accused's feelings and his belief in the relationship were delusional. Accordingly, even if he did act because of rejection, it was within his psychotic construct, and it would not be inconsistent with the conclusion that he did not know that he ought not to do the act.
As to the accused's vagueness about the relevant events, Dr Brett noted that amnesia is known to be associated with psychotic episodes, in particular where they involve trauma.
Dr Pascu also explained that persons who suffer psychotic episodes may have difficulty describing or remembering what happened for a number of reasons. In short, the disordered state of the mind may affect memory because of distorted perception at the time of the event, defective encoding of memories (or a total failure of such encoding) or defective retrieval of memory at a later time, or a combination of those factors. Dr Pascu noted, however, that problems with recall of events can improve when the psychosis subsides and the person's mental health improves.
It is difficult to know which factors have been at play in the accused's case, given the discrepancies in his accounts, but neither Dr Brett nor Dr Pascu was of the view that he was malingering or deliberately misrepresenting his symptoms during their interviews with him.
Addresses
It is not necessary for me to outline counsel's addresses. They were of considerable assistance, but I have considered the issues raised on behalf of the accused in the course of these reasons and in the assessment and findings that follow. Ultimately, the issue was narrow and the defence submissions essentially reflected the evidence of the experts. The State in effect conceded that it was open for me to be satisfied on the balance of probabilities that the accused was of unsound mind at the time of the alleged offence, because he was deprived of the capacity to know that he ought not to do the act. It did not press a contrary position.
Assessment and findings
I have already found that the accused was suffering from a mental impairment, namely schizoaffective disorder, which was symptomatic, at the time of the alleged offence.
The question of whether the accused was deprived of one of the relevant capacities requires consideration of the alternative possibilities postulated, but not pressed by the State.
It is appropriate to note immediately that, consistently with the expert evidence, I would not find that the accused was deprived of the capacity to understand what he was doing. Further, having regard to the expert evidence, and notwithstanding Dr Brett's view that there was an interrelationship between the second and third capacity in the context of this case, the evidence ultimately did not go so far as to support the conclusion that the accused was deprived of the capacity to control his actions (in the sense that it was completely absent). Therefore, I am not satisfied on the balance of probabilities that he was deprived of that capacity.
The difficulty in assessing whether the accused was deprived of the third capacity is that it is simply not known precisely what precipitated his actions. That is because his accounts have been vague in that regard, despite his references to being fearful or having auditory hallucinations that included a 'killing prophecy'. It is also difficult because there is strong evidence that the accused was infatuated with the deceased. I am satisfied the accused was in love with the deceased and desired to be in a relationship with her, including a physical relationship, and ultimately to be married to her. He made her the object of his plans, which were something of an obsession, and there is good evidence that the deceased rejected his entreaties. I have already found that I do not accept the accused's claims that he had an affair with the deceased. Although the deceased cared for the accused as a client, she did not reciprocate the romantic feelings and made that clear to him. Nevertheless, it appears that, in his delusional mindset, he believed he was in a romantic relationship with the deceased and that they had been physically intimate, when that was not the case.
While the rejection might be regarded as a motive for the accused to react violently to the deceased, I do not consider that there is an inconsistency between the accused being motivated to kill the deceased because she rejected his romantic entreaties and the accused being affected by mental illness at the time in a manner that deprived him of the relevant capacity. On the expert evidence given in this trial, it might be expected that someone who is labouring under an acute disorder of his mind, which prevents him from reasoning in a calm and rational manner, is more likely to act in an irrational manner in response to rejection. I am also satisfied that, when not psychotic, the accused was on good terms with the deceased, and he appears to have been reasonable and mature in his response when she first rejected his romantic approach. In my opinion, that evidence tends to support the conclusion that to reach a point where he would be prepared to kill the deceased, the accused was labouring under such a disorder of his mind as to not have a proper appreciation of the wrongfulness of his actions.
It will be recalled that one of the historical medical records referred to the accused's account when he inflicted an injury to his own neck, in which he spoke about another woman (a spiritual person) with whom he was in love. He said on that occasion that the spiritual voices had told him that it was not possible to be with her physically, so he needed to be with her spiritually. The suggestion appears to be that he believed he needed to end his own life to be able to be with her spiritually. There appear to be some parallels in the somewhat vague reference to a 'killing prophecy' in the accused's accounts in relation to this matter, except that on this occasion the violence was directed outwardly. One parallel is that the deceased had made it clear to the accused that she could not be with him.
As I noted earlier, and with all due respect to Dr Brett, who was relying only on what the accused told him, in my view the evidence does not support the conclusion that the accused acted out of fear. The deceased was leaving, even according to his own account. It is more likely he acted out of anger, albeit in a disordered mental state.
I am prepared to accept that the accuracy of the accused's accounts has been affected by his psychotic state at the time.
Ultimately, the evidence referred to by the experts compels the conclusion that the accused was acutely mentally unwell at the time he killed the deceased. That evidence is of the accused's condition in the days leading up to 6 October 2018 and afterwards, when he was in the Frankland Centre. It is of some significance that the deceased was of the belief at the time that the accused was acutely unwell. That was why she chose to make a visit that she knew would not be approved.
The accused was suffering from distressing hallucinations and delusional beliefs. He had insight into his illness and had sought assistance. Unfortunately, he was at a point where his symptoms were fluctuating and his condition was not adequately addressed by the medication he was prescribed.
I am satisfied on the balance of probabilities that his mind was acutely disordered at the time he killed the deceased. Although it cannot be known precisely what precipitated the violent attack, I am satisfied that the accused was incapable of thinking rationally of the reasons which would lead ordinary people to consider the act right or wrong by ordinary standards, as opposed to the law. I am satisfied, therefore that he was deprived of the capacity to know that he ought not to do the act that resulted in the death of the deceased.
This was a tragic case in which someone who was acting with compassion to assist the accused found herself in what Dr Brett aptly described as an imperfect storm, being the accused's descent into an acutely disordered mental world of hallucinations and delusions.
Conclusion
For the reasons I have given, I am satisfied on the balance of probabilities that, at the time he killed the deceased, the accused was deprived of the capacity to know that he ought not to do the act.
Therefore, I find him not guilty of murder on account of unsoundness of mind.
In the circumstances, I enter judgment of acquittal on account of unsoundness of mind and I make a custody order in respect of the accused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HF
Associate to the Honourable Justice Fiannaca31 JULY 2020
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