The State of Western Australia v Strabach [No 2]

[2012] WASC 227

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- STRABACH [No 2] [2012] WASC 227

CORAM:   COMMISSIONER SLEIGHT

HEARD:   18-20 JUNE 2012

DELIVERED          :   26 JUNE 2012

FILE NO/S:   INS 172 of 2011

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

VALENTINA MARINA STRABACH
Accused

Catchwords:

Criminal law - Trial by judge alone - Murder - Insanity plea - Whether accused lacked a capacity to control her actions - Whether accused lacked a capacity to know that she ought not to do the act

Legislation:

Criminal Code (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Criminal Procedure Act 2004 (WA)

Result:

Accused acquitted on grounds of insanity

Category:    B

Representation:

Counsel:

Prosecution                  :     Ms L Petrusa

Accused:     Mr S F Rafferty

Solicitors:

Prosecution                  :     Director of Public Prosecutions (WA)

Accused:     Seamus Francis Rafferty

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

Hone v The State of Western Australia [2007] WASCA 283

R v Falconer [1990] HCA 49; (1990) 171 CLR 30

R v Porter [1933] HCA 1; (1933) 55 CLR 182

Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358

Taylor v The Queen (1978) 45 FLR 343

The State of Western Australia v Hone [2007] WASC 64

1. COMMISSIONER SLEIGHT:  The accused Valentina Marie Strabach is charged by indictment that on 29 January 2011 at South Perth she murdered Murray Vernon Quartermaine.

2. On 14 March 2012, McKechnie J made an order pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (the CPA) that the charge be tried by a judge alone without a jury.

3. Pursuant to s 126(1)(d) of the CPA, the accused Ms Strabach has entered a plea of not guilty of the charge of murder on account of unsoundness of mind under the Criminal Code (WA) s 27.

4. The effect of this plea is that the sole issue before the court is whether the accused Ms Strabach is not criminally responsible for the killing of Mr Quartermaine on the grounds of insanity.  Under s 93(1)(d) of the CPA, the judge may decide the issue on any evidence and in any manner that the judge thinks fit.  This provision is applicable to a trial by judge alone as in such a trial the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury (s 119(1) of the CPA).

5. Having considered all the evidence presented in this case, my verdict is that the accused is not guilty of the charge of murder on account of unsoundness of mind.  Set out below are the principles of law that I have applied and findings of fact on which I have relied to reach this verdict (s 120(2) of the CPA).

Admissions

1. At the commencement of the trial, the accused through her counsel made an admission pursuant to s 32 of the Evidence Act 1906 (WA) that on 29 January 2011 at South Perth the accused killed Murray Vernon Quartermaine.

2. In my view the admission made by the accused may be unnecessary in light of the plea entered under s 126(1)(d) of the CPA, which confines the issue at trial simply to the question of unsoundness of mind. In my opinion, such a plea constitutes an admission of all other elements of the charge. However, if I am wrong concerning this question then the effect of the admission is that it can be taken that it has been proved beyond reasonable doubt that the accused killed the deceased Mr Quartermaine.

Form of evidence presented

1. The evidence presented in this trial was uncontested.  The State's case in part was presented by 12 written witness statements being read into evidence and the statements themselves tendered.  One of the statements read into evidence was a report to the Coroner by a pathologist Dr Judith McCreath (exhibit 12) which had an addendum attached to it, which was not read into evidence, but was tendered as a part of the exhibit.  The State also presented oral evidence of two police officers, Detective Sergeant Craig Alexander Stephen (who conducted a recorded interview with the accused on 31 January 2011) and Sergeant Ian William Cornthwaite (a Forensic Investigation Officer).

2. The defence called two expert psychiatric witnesses, Dr Mircea Schineanu and Dr Mark Hall.  Also tendered into evidence by consent was a report of Dr Schineanu dated 10 January 2012 and a report of Dr Hall dated 19 September 2011.  The defence also read into evidence and tendered by consent two written witness statements of the accused's mother, Cristina Angela Calligaro dated 21 April 2011 and 14 June 2012 respectively.

3. As none of the evidence in this trial was contested, I make factual findings in accordance with the summary of the prosecution case as set out in this decision. I am also satisfied that the accused killed Mr Quartermaine as admitted by the accused in her recorded police interview on 31 January 2011.  However, I make no factual findings as to the deceased's behaviour.

The prosecution's case

1. On 30 January 2011 at about 9.30 am, the deceased's ex‑wife, Ms Yetunde Quartermaine, found the deceased, Mr Murray Vernon Quartermaine, dead in Unit 4, 19 Ridge Street, South Perth.  At the time the deceased Mr Quartermaine was living alone in his unit.  Ms Quartermaine had visited the unit as she was concerned that Mr Quartermaine had not attended his daughter's riding school that morning as he had previously arranged. Ms Quartermaine contacted the police as result of her discovery of Mr Quartermaine's body.

2. Dr Judith McCreath conducted a post mortem examination on 1 February 2011 and formed the opinion that the cause of death was 'multiple sharp force injuries'.  In a report to the Coroner, Dr McCreath stated as follows:

   This 79‑year‑old man with a past medical history of heart disease and diabetes was found deceased in his home.

   Post mortem examination showed approximately 211 sharp force injuries to the head, neck, trunk and limbs.  Nine of these entered the chest cavity (one twice) and 19 entered the abdominal cavity.  They were associated with perforation of the lungs, bowel, liver and right external jugular vein.  There was associated blood in the chest cavity.  There was amputation of the genitalia and both big toes.

3. At the time the accused was 20 years old and visiting Australia from France.  The accused arrived in Perth on 20 December 2010.  When the accused initially arrived in Perth she stayed with Mr William Ray Calligaro (Mr Ray Calligaro) and his wife, Mrs Enrica Calligaro.  From about 2 or 3 January 2011, the accused resided with relatives Mr Gregory Paul Edwards and his wife, Mrs Loretta Edwards at a property in Northbridge.  Also living in the property in Northbridge was a daughter of Mr and Mrs Edwards, Ms Elizabeth Esterina Edwards.

4. In the early afternoon of 29 January 2011, Mrs Loretta Edwards and the accused walked to a local shop for the accused to buy some cigarettes.  Whilst walking back from the shop, the accused became agitated and walked off, leaving Mrs Edwards to return home by herself.  The accused was not seen again by Mr and Mrs Edwards and their daughter until the next morning, 30 January 2011, when she returned home at about 11.15 am.  The accused was no longer wearing the clothes she had been wearing the previous day and instead was observed to be wearing tracksuit pants and top.  According to the statement of Mr Gregory Edwards, the accused told him, 'I've killed a man and I'm going to go to gaol for four years'.  She added, '[h]e was a paedophile and the police will come and get me'.

5. Later that day on 30 January 2011, Detective Sergeant Craig Stephen arrested the accused.  At the time of the arrest the accused stated to Detective Stephen, 'I killed the guy, I was going to come and see you'.

6. The accused was taken into custody and, at 12.20 am on 31 January 2011, participated in a formal recorded interview.  During this interview the accused made full admissions that she had killed the deceased.

7. The account of the killing of Mr Quartermaine given by the accused in her police interview commenced by the accused stating that on 29 January 2011 she became lost and was checking to see if she could catch a bus back to her place of residence.  Mr Quartermaine stopped and offered her assistance.  The accused said that Mr Quartermaine offered to give her a lift to take her home.  The accused said she was not afraid and agreed to go with Mr Quartermaine in his car.  The accused said that Mr Quartermaine told her he was married, but she soon realised that he was not married.  She formed the view that Mr Quartermaine was a pervert.  The accused said that she spoke to Mr Quartermaine about Thailand and he told her that he did not like Thailand due to the risk of cholera and the monsoon season.  The accused said she was suspicious that Mr Quartermaine did not like Thailand and concluded that he was trying to hide something.  The accused said that Mr Quartermaine also passed a comment about people should have the right to love anyone at any age.  In her mind the accused concluded that Mr Quartermaine was a paedophile.

8. Whilst in the car the accused said that Mr Quartermaine invited her to a party or to his place.  The accused said she made a movie in her head of the people at the party raping children.  The accused said she told Mr Quartermaine to take her to his place.  She said she really wanted to know if Mr Quartermaine was a paedophile.

9. The accused said that on arriving at Mr Quartermaine's unit they went directly to his bedroom.  She observed in the unit a second bedroom which Mr Quartermaine told her was his young daughter's bedroom.  The accused said that she made 'a movie in her head' that it was 'a fake bedroom' that Mr Quartermaine brought children to because he was a paedophile (ts 28 of police recorded interview).

10. The accused said that Mr Quartermaine turned on the television which had a cartoon on it.  She said Mr Quartermaine quickly switched the cartoon off and put on some pornography.

11. The accused said that Mr Quartermaine was waiting in the bedroom for sex.  She said that she went out onto a balcony for a few hours and was thinking about what she should do.  She said 'it's all in my mind he is a paedophile' (ts 29 of police recorded interview).

12. The accused said that she thought of telephoning the police, but did not do so as she knew she did not have any evidence that Mr Quartermaine was a paedophile.  She said she was thinking of all the children that she believed Mr Quartermaine had raped and she decided to kill Mr Quartermaine (ts 29 of police recorded interview).

13. The accused said she decided to kill Mr Quartermaine with a pair of scissors that she had seen earlier in the unit.  However, when she went to get the scissors she was unable to find them and she formed the view that Mr Quartermaine had hidden them.  This caused the accused to have further suspicions about Mr Quartermaine.  The accused said she then went to the living room and obtained another pair of scissors which she hid down the back of her underwear.

14. The accused said Mr Quartermaine was lying on the bed naked.  She said, 'I was convicted, I had to kill him' (ts 35 of police recorded interview).  She said she got on top of him.  She asked him to touch her so that his hands would be occupied and provide her with the opportunity to kill him.

15. The accused said she removed the scissors from her underpants and commenced stabbing Mr Quartermaine in the throat area.  The accused said she stabbed Mr Quartermaine maybe 20 ‑ 30 times.  She said that Mr Quartermaine was struggling with her.  She said she said to him, 'I'm going to kill you, paedophile'.  She said that at one point Mr Quartermaine yelled 'help' and she started to fake the noises of sexual activity so that neighbours would not be worried by the noises they were hearing.  The accused said at one point during the struggle they fell off the bed onto the floor of the bedroom and she continued stabbing Mr Quartermaine until he died.

16. After Mr Quartermaine had died, the accused said she started thinking about the evidence at the scene and the need to remove the DNA.  To do this she washed Mr Quartermaine's body with an antibacterial solution using some curtains and water.  She also obtained a knife from the kitchen and amputated Mr Quartermaine's genitals (his penis and testicles) and also amputated his two big toes.  The accused  said she amputated these parts of Mr Quartermaine's body because she had touched these parts and feared her DNA would be present.

17. After the accused removed Mr Quartermaine's penis she said she was thinking how a penis and a child is the 'worst kind of association' (ts 10 of police interview).  The accused said she also removed the sheets from the bed and her own clothing.  She later deposited Mr Quartermaine's body parts and other items in a plastic bag and wrapped these in the removed sheets.  The items were later deposited in a small garden at the corner of Angelo and Strickland Street, South Perth.

18. The accused also described how she smeared blood over the wall of the staircase leading up to Mr Quartermaine's bedroom which was located in the upper storey of the two‑storey unit.  The accused said she did this to alert the mother of Mr Quartermaine's daughter and thereby hopefully prevent Mr Quartermaine's daughter discovering Mr Quartermaine's body.

19. According to the evidence of Sergeant Cornthwaite, the items discarded by the accused in the garden at the corner of Angelo and Strickland Street, South Perth were recovered by the police in the early hours of 31 January 2011.

Psychiatric evidence

(a)     Evidence of the accused's mother, Cristina Angela Calligaro

1. The evidence of the accused's mother, Ms Cristina Angela Calligaro, was that the accused had lived a psychologically troubled childhood as a result of a violent relationship between Ms Calligaro and the accused's father.  From the age of four, the accused received regular psychological counselling.  When the accused reached her teenage years she was also sent to a psychiatrist.

2. Ms Calligaro's evidence was that the accused suffered depression in her first year of senior high school when the accused was approximately aged 15.

3. Ms Calligaro stated that, in November 2009, the accused claimed she had been raped whilst walking home from a bar.  Ms Calligaro said the French police are still investigating this matter.  Ms Calligaro stated that this incident caused the accused to go into further depression.

4. Ms Calligaro stated that the accused was admitted on two occasions to psychiatric hospitals in France.  The first occasion was in the months of June to September 2010, at the Hautville Maison Blanche in Paris; and a second occasion for about two to three weeks at the Maison Blanche Langy.

5. Ms Calligaro stated that the accused was prescribed strong medication, but stopped using it as she could not function whilst on the medication.  At about this time the accused claimed she was hearing voices.

6. Ms Calligaro stated that after the accused arrived in Australia, Ms Calligaro had a number of telephone conversations with the accused in which the accused appeared agitated, leading to Ms Calligaro making arrangements for the accused to see a psychologist, Ms Casey Terry.  Ms Calligaro stated that in one telephone conversation the accused spoke of paedophiles and claimed she was a paedophile when she was 6 years old.  Ms Calligaro stated that, because of her concern about the accused's behaviour, she decided she should fly to Perth.  Ms Calligaro left Paris on 29 January 2011.  Shortly before departing she had a telephone conversation with the accused in which the accused stated she wanted to go to Thailand as children there needed protection.

(b)     Observations of people close to the accused

1. The State witnesses, Mr Ray Calligaro, Mrs Enrica Calligaro Mr Gregory Edwards, Mrs Loretta Edwards, and Ms Elizabeth Edwards, all gave evidence of observations of odd behaviour by the accused on or about 29 January2011.  Mr Ray Calligaro and his wife Enrica Calligaro, stated in their witness statements that when the accused was staying with them they observed that the accused had a disturbed sleep pattern.  Mr Ray Calligaro observed that the accused was self absorbed and giggled to herself.  Mrs Enrica Calligaro described the accused laughing out of context.

2. Mrs Loretta Edwards and her daughter Elizabeth gave evidence that the accused was acting oddly prior to 29 January 2011.  On one occasion the accused was observed going for a swim in a swimming pool fully clothed.  Ms Elizabeth Edwards noted that on 28 January 2011 the accused was agitated and pacing a lot.  On the morning of 29 January 2011 Ms Elizabeth Edwards overheard the accused crying in her bedroom.

3. Mr Gregory Edwards' evidence was that on 30 January 2011, when the accused told him that she had killed a man, she also claimed that she was telepathic.  When he asked questions about where she had killed a man, she started talking incoherently about random issues.

(c)     Evidence of Casey Marie Terry

1. Ms Casey Marie Terry gave evidence that she held a Bachelor of Psychology and conducted healing sessions with patients.  Ms Terry said she saw the accused on 27 January 2011.  Ms Terry noted that at the end of the session the accused started talking about paedophilia and how the accused was having thoughts of doing bad things to paedophiles.  Ms Terry concluded that the accused had serious problems.

(d)     Expert psychiatric evidence

1. Dr Mircea Schineanu.

1. Dr Schineanu is a psychiatrist who has been practising as a psychiatrist since 1978.  Dr Schineanu has been the treating psychiatrist for the accused at the Graylands Hospital since 1 February 2011.

2. Dr Schineanu stated that, from discharge notes, he ascertained that in June 2010 the accused was diagnosed as suffering a psychotic illness during the first of two admissions to a psychiatric hospital in France.  The discharge summary stated that the accused was depressed and floridly psychotic.  She experienced auditory hallucinations and delusions of an erotomanic type (where a person has delusional beliefs she is in a loving relationship with someone).  The discharge summary of the second admission described the accused as acutely psychotic.  It recorded she had experienced auditory and visual hallucinations, delusions with sexual, racial and paedophilia topics.  The accused was described as aggressive, insightless and irrational.

3. Dr Schineanu expressed the opinion that the accused suffered, at the time of the killing of Mr Quartermaine, a mental illness being 'chronic paranoid schizophrenia'.  He described schizophrenia as a mental disorder characterised by a significant disorder in thought processes, with co‑existent perceptual disturbances such as the auditory hallucinations, delusions of various natures and thought disorder (ts 77).  Dr Schineanu expressed the opinion that at the time of the offence the accused was in an acute floridly psychotic state, meaning that she had all the main symptoms of a mental illness such as delusions, prominent hallucinations, disorganised behaviour and disorganised thinking processes.

4. Dr Schineanu described the accused's thought processes as peculiar and bizarre (ts 82).  Dr Schineanu stated that the accused attached peculiar significance to reality based events and used delusional interpretation of these events and facts.  Dr Schineanu gave some examples of the accused's delusional thinking.  He said the accused believed that some types of food have bad thoughts and if she ate the food, the bad thoughts would get into her head.  The accused also believed that if she ate certain types of food other persons would die of AIDS.  The accused also said that she heard voices - one male and one female.  The accused described the female voice as a French witch.

5. Dr Schineanu stated that the accused told him that when she arrived in Australia she was still hearing voices.  The French witch told the accused to kill her father, to eat spiders and her own faeces.  The accused told Dr Schineanu that the accused obeyed the voices by eating spiders and her own faeces.

1. Dr Schineanu stated that on 16 March 2011 the accused told him that at the time she killed Mr Quartermaine she heard a voice saying to her, '[o]h my God he is a paedophile.  He will rape you.  You have to kill him'.  Dr Schineanu said the accused told him that just before killing Mr Quartermaine, 'I felt like possessed, I felt like fire came to me, the voices shouting "kill him, kill him"'.

2. Dr Schineanu also said that during an interview with the accused, she claimed that when she was aged 2 or 3 she was sexually abused by her father.  She also claimed her father organised paedophilia parties during which her father's friends abused her.  Dr Schineanu said that on another interview on 8 April 2011, the accused told him that when she was interviewed by the police she wanted to go to gaol for 10 years because when she was 11 she had masturbated over paedophilic things and she believed she should be punished for this.

3. As to the relevant capacities under s 27 of the Criminal Code, Dr Schineanu 's evidence was that:

   1.The accused was not deprived of the capacity to know what she was doing.

   2.At the time of killing Mr Quartermaine the accused was deprived of the capacity to control her actions.  Dr Schineanu stated that at the time of the killing, the accused was experiencing overwhelming delusions and command auditory hallucinations to kill Mr Quartermaine.  Dr Schineanu stated that '[a]t that moment she was not able to make a wilful decision not to act; she lost control over her actions' ([76] of Dr Schineanu's report dated 10 January 2012).  Dr Schineanu stated that in his opinion the number of stab wounds (211) indicated that at the time of the killing the accused became like an automaton who was out of any control (ts 111).

   3.At the time of the killing of Mr Quartermaine, the accused was deprived of the capacity to know that she ought not to act.

4. Dr Schineanu concluded in his report at [81]:

   Therefore at the time of the act, she could not appreciate that she ought not to do the act.  She did not have the intellectual and emotional appreciation of the wrongfulness of her act.  Although she was aware that the act was contrary to the law, she believed that she was right and that people would not regard her act as wrong.  Moreover, she believed that people/society will commend her act and she will be regarded as a hero ('I killed a paedophile, I am a hero'.  Her statement during the interview on 9th February 2011).  In the world perceived through her psychotic eyes she did what she thought was right.

   In conclusion I believe that at the time of killing Mr Quartermaine, Ms Strabach did not have sufficient reason to apply the distinction, she may have been aware of, between the legal and moral meaning and the consequences of her act and therefore she was deprived of the capacity to know that she ought not to do the act.

1. Dr Mark Hall

1. Dr Mark Hall is a psychiatrist who has been practising as a consultant psychiatrist since 2005.  Dr Hall interviewed the accused on five occasions.  He said the number of interviews was more than normal but this was necessary because of the accused's mental health which meant that it took him some time to receive all of the information necessary to make an assessment.

2. Dr Hall detailed in a written report dated 19 September 2011 (exhibit 17) inconsistencies in the accused's account as to the circumstances leading up to the death of Mr Quartermaine.  In her first interview with Dr Hall the accused gave an account largely consistent with what she had told the police during the police interview on 30 January 2011.  The accused told Dr Hall that she was overwhelmed by the thought of Mr Quartermaine raping children in Thailand.  She believed killing him was righteous and justified.  During a subsequent interview the accused claimed that when she was out on the balcony that a witch had taken possession of her and that the witch had killed Mr Quartermaine. In the next interview the accused claimed Mr Quartermaine had intended to rape and kill her and she claimed she killed Mr Quartermaine in self defence.  On another occasion the accused told Dr Hall that the voices told her 'defend yourself, he is going to rape you'.  She also claimed the deceased attacked her and she heard voices saying 'he's going to kill you'.  The accused said when she persuaded Mr Quartermaine to allow her to straddle him she said she heard the voice of the witch say 'kill him, kill him, kill him' (page 10, exhibit 17).

3. Dr Hall stated that inconsistencies were not uncommon in schizophrenia and reflects a polymorphic quality to the accused's psychosis (page 16, exhibit 17).

4. Dr Hall in his oral evidence stated that he concluded that at the time of the killing of Mr Quartermaine, the accused was in such a high level of arousal due to her mental illness that she incorporated what was happening around her into her delusional beliefs.  He concluded that this, together with auditory hallucinations, completely eroded any capacity to control her impulses (ts 142).

5. In relation to the issue of insanity under s 27 of the Criminal Code, Dr Hall reached the same conclusions as Dr Schineanu. Dr Hall concluded that at the time of the killing of Mr Quartermaine the accused was suffering from a mental illness of paranoid schizophrenia. In relation to the incapacity issues under s 27 of the Criminal Code, Dr Hall concluded as follows:

   1.At the time of the killing of Mr Quartermaine the accused was not deprived of the capacity to understand what she was doing (page 16, exhibit 17).

   2.At the time of the killing of Mr Quartermaine the accused was in such a state of mental impairment as to be deprived of the capacity to control her actions (page 16, exhibit 17).

   3.At the time of the killing of Mr Quartermaine the accused was in such a state of mental impairment as to be deprived of the capacity to know that she ought not to do the act (page 17, exhibit 17).

6. Dr Hall stated in his written report as follows:

   I am strongly of the view that, for reasons previously mentioned, the shift in her recollection and therefore her account of events is actually a symptom of her schizophrenia, and that the account that she provided in close proximity to the alleged act is indeed a valid presentation of the mental state at the time of committing the alleged act.  That is, Ms Strabach believed that it was her purpose in life to save children from paedophiles, that the victim was a paedophile, and that although legally wrong, her actions were not morally wrong.  Furthermore, any ability to apply further reasoning or judgement at the time in relation to the decision to carry out what she believed to be a reasonable thing to do, was further impaired by being in a florid state of psychosis, a key feature which in Ms Strabach was disorganisation of thought and reasoning, as was evident in both the Video Record of Interview and her clinical presentation early in her hospital admission (page 17, exhibit 17).

7. In his oral evidence Dr Hall stated as follows :

   She believed it was her purpose to save the children of the world from paedophiles and she believed at the time she was governed by the justice of the universe which she saw as sitting well above the law of the land and that it was her moral duty to kill Mr Quartermaine (ts 143).

Legal principles

1. Fundamental to any criminal trial is the presumption of innocence and that the prosecution bears the onus of proving each element of the offence charged beyond reasonable doubt.

2. Any person who unlawfully kills another is guilty of a crime which, according to the circumstances of the case, maybe murder or manslaughter: s 277 Criminal Code. The elements of the charge of murder are set out in s 279(1) of the Criminal Code.

3. It is unlawful to kill any person unless such killing is authorised or justified or excused by law: s 268 Criminal Code.

4. As a result of the plea entered by the accused, the only issue in this trial is whether the killing was unlawful or whether it was excused on the grounds of unsoundness of mind.

5. Section 27 of the Criminal Code relevantly provides:

   (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.

6. Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved:  s 26 Criminal Code.  Accordingly, the accused has the burden of proving insanity.  The standard of proof is on the balance of probabilities:  R v Porter [1933] HCA 1; (1933) 55 CLR 182. This means that the accused must satisfy me on the balance of probabilities that:

   (i)at the time of killing Mr Quartermaine, the accused was suffering a mental impairment; and

   (ii)the mental impairment deprived the accused of:

   (a)the capacity to understand what she was doing; or

   (b)the capacity to control her actions; or

   (c)the capacity to know that she ought not to kill Mr Quartermaine.

7. Section 1 of the Criminal Code defines mental impairment as 'intellectual disability, mental illness, brain damage or senility'.  'Mental illness' is defined as meaning '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'.

8. The last two incapacities mentioned in s 27 of the Criminal Code, being an incapacity to control her actions or any incapacity to know that she should not kill Mr Quartermaine, are the relevant incapacities relied upon by the accused in this case.

9. What is meant by the expression 'the capacity to control her actions' is not defined in the Criminal Code.  In the High Court decision of R v Falconer [1990] HCA 49; (1990) 171 CLR 30, Mason CJ, Brennan and McHugh JJ [13], and Deane and Dawson JJ [12] referred to an automatism due to an unsoundness of mind. An automatism is a state of mind in which a person's actions occur independently of his or her conscious will; that is, involuntarily. A classic example of an automatism often given is a person sleepwalking. However, the High Court in R v Falconer was dealing with the question of an automatism and in my opinion was not seeking to define the full meaning of the expression 'capacity to control' in s 27. Murray J in The State of Western Australia v Hone [2007] WASC 64 [22] stated that the capacity to control meant the capacity to 'decide whether or not to perform the acts which caused' the offending behaviour.

10. I believe the words 'capacity to control' must be given their ordinary natural and everyday meaning.  The Oxford dictionary defines 'control' as meaning 'the power of restraining, especially self restraint'.  The loss of 'capacity to control' must be a significant impairment of a person's mental processes so as to lose the power or control of self‑restraint.  Whether there is a loss of such a capacity is a question of degree.  It is clearly relevant in deciding whether a person has lost the power of self restraint (that is the capacity to control his or her actions) to take into account whether the person is suffering from delusional beliefs and thinking; and the extent to which the person is subject to auditory hallucinations.

11. As to what is meant by the expression 'capacity to know that a person ought not to do an act', Dixon J in R v Porter(189 ‑ 190) stated:

    We are dealing with one particular thing, the act of killing, the act of killing at a particular time by a particular individual.  We are not dealing with a 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.

12. There is no requirement that an accused knows that the act is wrong in the sense of contrary to law.  What is required is that the accused knows right from wrong, not legality from illegality:  Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 372. The test is whether at the time of the commission of the act the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act: Stapleton v The Queen (367).

13. The High Court in Stapleton v The Queen went on to observe that in cases of murder the difference between a capacity to understand the wrongness and the legality of the act often might not be of much significance, but in some cases it might be decisive:

    The truth perhaps is 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.  But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong - he may yet have at the back of his mind an awareness of the act he proposes to do is punishable by law (375).

14. In Hone v The State of Western Australia[2007] WASCA 283, the Court of Appeal considered the situation in a case such as this where there was uncontradicted psychiatric evidence. Steytler P cited with approval the decision of Taylor v The Queen (1978) 45 FLR 343, in which the Full Court of the Federal Court allowed an appeal against conviction of murder in circumstances where there was very strong expert medical evidence that the appellant was insane at the time of the commission of the offence. Smithers J said that where medical opinions are accepted as honest and competent and are unchallenged, the jury should not reject or ignore those opinions unless

    the facts on which the medical witnesses have relied to form their opinions are not satisfactorily established or are contradicted by other acceptable evidence, or the jury are not persuaded that the steps of reasoning in the formation of those opinions were soundly taken, or there is some other factor before them reflecting on the validity of the opinions expressed (352).

15. Connor and Frankie JJ in Taylor v The Queen observed that a jury is entitled to examine the nature and quality of the medical evidence in a broad and commonsense way (363).  In a case where there is uncontradicted medical evidence the jury (or a judge where the trial is by judge alone) can examine the nature of the killing and the conduct of the accused and his history in considering the weight to be accorded to psychiatric evidence.

Conclusions

1. In this case the State does not invite me to make any findings contrary to the expert evidence of Dr Schineanu and Dr Hall (ts 160).  However, although the State does not seek to persuade me to make findings contrary to the opinions expressed by Dr Schineanu and Dr Hall, I still need to be  persuaded on the balance of probabilities that the accused was insane at the time of the killing of Mr Quartermaine.

2. There are a number of evidentiary matters that I need to reconcile with the conclusions reached by Dr Schineanu and Dr Hall.  The starting point is that I must take into account the need to be cautious about judging the behaviour of a mentally ill person by standards of a normal person:  Hone v The State of Western Australia [7].

3. The evidentiary matters that I believe require my careful consideration are as follows:

   1.Firstly, there is the account given by the accused to the police in her police interview.  She was able to give a very detailed account of the events of 29 January 2011 from the time she was picked up by Mr Quartermaine until she deposited the evidence she had removed from the unit in a garden at the corner of Angelo and Strickland Streets in South Perth.  Also, in providing details to the police, the accused described making clear choices during the incident which led to the death of Mr Quartermaine.  These choices included deciding to kill Mr Quartermaine, going to the living room and selecting a pair of scissors, hiding the scissors in her underwear and asking Mr Quartermaine to touch the accused so he would be occupied and provide the accused with the opportunity to stab Mr Quartermaine.

   2.Secondly, I need to consider the very calm manner in which the accused described what had occurred to the police during her police interview.

   3.Thirdly, I need to consider the accused's behaviour in removing incriminating evidence.

4. When considering these matters it must be taken into account that both Dr Schineanu and Dr Hall stated that in their opinion the accused was aware of what she was doing at the time of the killing.  Further, both Dr Schineanu and Dr Hall stated that a psychotic person, such as the accused, lives in two worlds at the same time: one world is based on the person's correct interpretation of reality and the other world is based on the person's psychotic interpretation of reality.  Dr Schineanu in his report dated 12 January 2012 at [84] gave an example of a person who is under the effect of a persecutory delusion and believes that his life is in danger.  The person may jump into his car and drive away to escape from his imaginary persecutors.  His psychosis does not prevent him from knowing how to start the car and how to drive the vehicle through busy traffic.

5. Dr Schineanu also stressed that a psychotic person can have rapid fluctuations in his or her mental state.  There can be continuous changes in the intensity of their affected cognitive and emotional domains of the mind, in the intensity of the auditory hallucinations and delusions, and the consequent actions of the person.  All this makes the psychotic patient's behaviour unpredictable.

6. In relation to the apparent calmness of the accused when being interviewed by the police, Dr Schineanu said he asked the accused about this and she said she wanted to go to prison for 10 years.  When asked why she wanted to go to prison she said she believes that she ought to be punished for 10 years of her childhood when she engaged in masturbation thinking about paedophilic sex with older men.

7. Dr Schineanu also said that he had closely watched the video recording of the police interview with the accused and he concluded that her responses and mannerisms were consistent with someone who at the time was suffering from a psychotic illness.

8. In relation to the accused's behaviour in removing incriminating evidence must be taken into account that both Dr Schineanu and Dr Hall acknowledge that the accused was aware that the act she did was contrary to the law but she believed that what she did was morally right because of her delusional belief that Mr Quartermaine was a paedophile.

9. Dr Schineanu in his report dated to 10 January 2012 stated as follows:

   I believe that after she killed the victim the intensity of her psychosis had suddenly decreased but she continued to be psychotic.  She had glimpse of 'normal' thinking and what she did, trying to remove the evidence and smearing blood on the walls near the staircase, was based upon her 'glimpse of normal' thinking.

   However the manner of trying to remove the evidence (cutting the genitals, cutting the big toes, burning the pubic hair, disposing the plastic bag with 'the evidence' including her own clothes) suggest rather psychotically driven actions, than a normal, logic judgement and actions [97] ‑ [98].

1. Taking into account all the evidence, I am satisfied on the balance of probabilities that at the time the accused killed Mr Quartermaine she was suffering from a mental illness in the form of paranoid schizophrenia.  I see no reason why I should reject the opinions expressed by Dr Schineanu and Dr Hall concerning the nature of the mental illness suffered by the accused at the time of the killing of Mr Quartermaine.  The diagnosis of Dr Schineanu and Dr Hall is consistent with the accused's history of having suffered a psychiatric illness which led to her being admitted to French psychiatric hospitals on two occasions in 2010.  Also the conclusion of Dr Schineanu and Dr Hall that the accused was suffering from a psychotic episode at the time she killed Mr Quartermaine is consistent with the unusual behaviour of the accused observed by her relatives leading up to and immediately after 29 January 2011.  It is further supported by the observations of Ms Terry two days before the killing.

2. Further I am satisfied that immediately prior to the accused killing Mr Quartermaine, the accused formed the delusional beliefs that Mr Quartermaine was a paedophile, was a potential danger to her and that the right thing for her to do was to kill him.  I am satisfied that the accused decision to kill Mr Quartermaine was influenced by auditory hallucinations which were commanding her to kill Mr Quartermaine.

3. It must be stressed that there was absolutely no basis for the accused concluding that Mr Quartermaine was a paedophile.  However, in her psychotic state the accused had developed a delusional obsession about paedophilia.  This obsession was revealed by her statements about her past, her belief that she should be punished for masturbating as a child, her obsession with helping  sexually abused children in Thailand and her comment to Ms Terry that she was having thoughts of doing bad things to paedophiles.  The accused's delusional belief that Mr Quartermaine was a paedophile was driven by such innocent comments by Mr Quartermaine as to his dislike of Thailand and the presentation of a room in his unit which had been retained for his young daughter.

4. I am satisfied on the balance of probabilities, consistent with the opinions expressed by Dr Schineanu and Dr Hall, that at the time the accused killed Mr Quartermaine and as a result of her mental illness she did not have a capacity to control her actions and she did not have the capacity to know that she ought not to kill Mr Quartermaine.  These conclusions are consistent with the objective facts.  The stabbing of a person 211 times without any apparent reason other than a delusional belief that the person was a paedophile is suggestive of a person overwhelmed by a mental illness and unable to control her actions.  Also I believe the bizarre behaviour of the accused amputating the genitals and the big toes of the deceased is further evidence in support of the conclusions of the two psychiatrists.

5. For the above reasons I conclude that under s 27 of the Criminal Code the accused was insane at the time of the killing of Mr Quartermaine and is not criminally responsible for her actions. Pursuant to s 21 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) I am required to make a custody order which has the effect that the accused will be detained until released by an order of the Governor.