The State of Western Australia v Tarau

[2005] WASC 290

THE STATE OF WESTERN AUSTRALIA -v- TARAU [2005] WASC 290

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 290
Case No:	INS:82/2005	Heard:	19 DECEMBER 2005
Coram:	MILLER J	Delivered:	21/12/05
No of pages:	24	Judgment Part:	1 of 1
Result:	Verdict of not guilty on account of unsoundness of mind on counts 1 and 3 Custody order made
Category:	B
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Parties:	THE STATE OF WESTERN AUSTRALIA DES ANZAC JUNIOR TARAU
Catchwords:	Criminal law Attempted murder Grievous bodily harm Turns on own facts Criminal procedure Trial by Judge alone Issue of insanity No dispute in relation to medical evidence Turns on own facts
Legislation:	Criminal Code (WA), s 1, s 4, s 27, s 283, s 294(1) Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 21, s 24 Criminal Procedure Act 2004 (WA), s 118, s 126(1)(d), s 147(2), s 149(1)
Case References:	Armanasco v the Queen (1951) 52 WALR 78 R v Porter (1933) 55 CLR 182 Ward v The Queen (2000) 23 WAR 254 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : THE STATE OF WESTERN AUSTRALIA -v- TARAU [2005] WASC 290 CORAM : MILLER J HEARD : 19 DECEMBER 2005 DELIVERED : 21 DECEMBER 2005 FILE NO/S : INS 82 of 2005 BETWEEN : THE STATE OF WESTERN AUSTRALIA

State

AND

DES ANZAC JUNIOR TARAU
Accused

Catchwords:

Criminal law - Attempted murder - Grievous bodily harm - Turns on own facts

Criminal procedure - Trial by Judge alone - Issue of insanity - No dispute in relation to medical evidence - Turns on own facts

Legislation:

Criminal Code (WA), s 1, s 4, s 27, s 283, s 294(1)

Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 21, s 24
Criminal Procedure Act 2004 (WA), s 118, s 126(1)(d), s 147(2), s 149(1)



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Result:

Verdict of not guilty on account of unsoundness of mind on counts 1 and 3

Custody order made

Category: B

Representation:

Counsel:

State : Mr M Mischin
Accused : Mr G P O'Brien

Solicitors:

State : State Director of Public Prosecutions
Accused : Bayly & O'Brien

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

Armanasco v The Queen (1951) 52 WALR 78
R v Porter (1933) 55 CLR 182
Ward v The Queen (2000) 23 WAR 254

Case(s) also cited:

Nil


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1 MILLER J: Des Anzac Junior Tarau ("the accused") is charged on an indictment which alleges three counts:

(1) On 6 March 2004 at Middle Swan he attempted unlawfully to kill Debbie Grace Freeman.

(2) In the alternative to count 1, on the same date and at the same place with intent to maim, disfigure, disable, or do some grievous bodily harm to Debbie Grace Freeman, he unlawfully did grievous bodily harm to her.

(3) On the same date and at the same place with intent to maim, disfigure, disable, or do some grievous bodily harm to Christopher Terence Morley he unlawfully did grievous bodily harm to him.

2 To each count on this indictment, the accused pleaded not guilty on account of unsoundness of mind. These pleas were entered pursuant to s 126(1)(d) of the Criminal Procedure Act 2004 (WA) ("the Act").

Trial by Judge alone

3 The accused sought and was granted trial by Judge alone. An order to that effect was made by me on 24 November 2005, pursuant to the provisions of s 118 of the Act. I considered that it was in the interests of justice for the order to be made, as the facts in this matter are not in dispute and the real question at trial was to be the accused's state of mind at the time of the alleged offences. It was not, however, the only issue for trial and hence the provisions of s 118 of the Act were utilised, not those of s 93.

4 The trial proceeded on 19 December 2005 on the basis that the statements and depositions or reports of various witnesses should be accepted as evidence without the need to call the witnesses. A very helpful Statement of Material Facts was prepared by the prosecutor and submitted by consent. The only oral evidence was that of Dr Bryan Tanney, who was called by the defence.

The prosecution case

5 Prior to 6 March 2004, the accused was living in a de facto relationship with Heather Rita Wilkie. They resided at 108 First Avenue, Bassendean, and they had a 14-month-old child, Tearia Maraia Tarau. They had resided in First Avenue, Bassendean, from November 2003 and Ms Wilkie had known the accused since about 2001.

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6 In December 2002, the accused's mother died in New Zealand. The accused went back to New Zealand after her death. He remained there for about one month. When he returned, Ms Wilkie considered that he was "a different person" and had undergone a personality change. Whereas before December 2002 he had been a very patient person, he suddenly began to demonstrate loss of control and to use physical violence towards Ms Wilkie. From that time, he complained to Ms Wilkie of having "out of it" dreams, the details of which he would not reveal.

7 By about the beginning of March 2004, however, the accused was telling Ms Wilkie about his dreams. At that time, he complained that for about five weeks he had dreamt about the "Grim Reaper being after him". He then started saying that he believed he could read minds.

8 On the night of 5 March 2004, Ms Wilkie went to bed about 9.30 pm. The accused stayed up to watch football. He came in and woke Ms Wilkie several times. She noticed on about the fourth occasion that he came in that he was carrying a black-handled steak knife, holding it by the handle with the blade running up his arm. Ms Wilkie got out of bed and went to the kitchen with the accused. He there said that he thought the bikies were coming to get him. He kept asking Ms Wilkie, "Did you hear that?". Then he began talking about voices in his head.

9 Eventually, the accused and Ms Wilkie went to bed at around 5.30 am. Ms Wilkie awoke at about 8 am. She got up and, as she went around the house, she found numerous knives: two in the bedroom, three spread out in the lounge room and another two or three in the kitchen area. They were knives normally stored in a drawer in the kitchen.

10 The accused told Ms Wilkie that morning that he wanted to see a doctor to help him with the voices in his head. Whilst he got changed, she got the child ready and it was her intention to drive the accused to the Bassendean Family Practice in Bassendean. She took the child to the car and put her in the car seat, whereupon the accused appeared and jumped into the driver's seat. The accused said that he would get petrol and would be back soon. He then drove away.

11 At 9.40 am, on Saturday, 6 March, two Public Transport Authority transit guards, Peter John Edward Lewis and David Price, were patrolling the Midland train line in a marked patrol vehicle. They were wearing uniforms. As Messrs Lewis and Price drove through the Maylands train station car park, they observed a brown old model Ford Laser hatch vehicle. The driver of it waved for them to come over to him. They

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pulled up alongside the Ford and Mr Lewis, who was the passenger in the patrol vehicle, spoke with the driver of the Ford. He observed him to be of Maori descent and clearly it was the accused. The child was observed to be sitting in a car seat in the left-hand rear passenger seat.

12 The accused told Mr Lewis that there was "a bunch of guys out to kill (him)" and said that he was in "the middle of a bikie war". He added, "There's a bunch of bikies that want to kill me". Mr Lewis could not get much sense from the accused who he observed to be quite distant and looking paranoid. The accused said that he had been waiting at the station for a friend to take him to a safe house. He said, however, that he did not know when the friend would be arriving.

13 Mr Lewis suggested that it would be best for the accused to go to a police station if he was fearing for his safety. The accused said, however, that he was too scared to drive anywhere, because he was scared that they would get him while he was driving.

14 Messrs Lewis and Price then offered to escort the accused to a police station and, after some time, the accused agreed to follow them to Midland police station. When asked for his details, the accused gave a false name, but gave the correct name for his daughter.

15 In due course, Messrs Lewis and Price, in their vehicle, and the accused, in his, arrived at the Midland police station. It was then about 10.20 am. The accused apologised to Mr Lewis and told him that his correct name was Tarau and he gave his address and date of birth. All three and the child then walked into the police station, where the constable on duty called for a sergeant. In the presence of the sergeant, the accused repeated that he was in the middle of a bikie war. The sergeant then made arrangements to take him to a room for interview and Messrs Lewis and Price left. At no stage during the time they were with the accused did he act in any threatening manner, but to the contrary was friendly and polite.

16 Constable Mark David Chamings was on duty at Midland police station on the morning of 6 March and at about 10.30 am that morning, he observed the two railway transit guards bring the accused to the station. Constable Chamings asked the accused if he was willing to talk to him and the accused agreed. They went to a nearby interview room and after a conversation of about 10 minutes, it was the opinion of Constable Chamings that the accused was suffering from some metal health issue. The accused had made comments to him about a bikie standing at his back door with a shotgun, saying that the bikie had stayed there all night. He

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said that he had been studying astrology and could perform telepathy. He could hear voices. Those voices were telling him to "stick to the rules … do the right thing". Constable Chamings spoke to his duty sergeant and then arranged for what he terms a "PETS" team to come to Midland police station to conduct an assessment. At about 11.10 am two psychiatric nurses whom he knew to be Christopher Morley and Debbie Freeman attended at the police station and he there introduced them to the accused. Whilst another nurse kept the accused's daughter occupied, Mr Morley and Ms Freeman interviewed the accused. Contact was made with the accused's de facto partner, Ms Wilkie, and at about 12.30 pm the accused left the police station with Mr Morley and Ms Freeman. Constable Chamings took the accused's daughter and conveyed her to First Avenue, Bassendean, where he placed her in the care of Ms Wilkie.

17 Christopher Terence Morley and Debbie Grace Freeman were on duty on 6 March 2004 as a senior social worker and community mental health nurse respectively, employed by Swan Mental Health. Mr Morley had been in the mental health field for approximately 11 years and he had worked for Swan Mental Health for about three and a half years. For that period, he had known Debbie Freeman as a fellow employee.

18 About 11 am on the morning of 6 March, Ms Freeman received a telephone call from the psychiatric emergency team (PET) with a request to attend at the Midland police station. She had been given a brief account of a man there with a child who was fearful of bikies at his house.

19 Mr Morley and Ms Freeman drove to Midland police station where they first spoke with Constable Chamings and were then introduced to the accused. His daughter was in the room with him.

20 Mr Morley felt that the accused was relieved to be talking to Ms Freeman and him. There was no indication of irritableness, nor was the accused guarded or apparently suspicious. He did not show any signs of aggression or give any indication that he found questions put to him intrusive, disturbing or provocative. The accused presented to him as a person fearful that his family was at risk. He said that he had not slept for days and needed rest. He said that he was willing to be admitted to a hospital for treatment and rest. Mr Morley and Ms Freeman decided to take the accused to the Swan Valley Centre and Mr Morley did not feel that any police assistance was required. He contacted Ms Wilkie to inform her of the situation and asked her whether there was any need for anybody to be concerned for their safety. Ms Wilkie indicated to Mr Morley that she did not believe there was any such need.

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21 Mr Morley and Ms Freeman then conveyed the accused to the Centre without incident. By the time they reached the hospital, they had spent about one hour with him and the accused seemed, to Mr Morley, to be calm and agreeable to what was happening. Upon arrival at the hospital, the accused was taken to the treatment room to await the arrival of a doctor. He seemed calm, asked Mr Morley and Ms Freeman about visiting arrangements, how long he might be there and whether he could make and receive telephone calls. Mr Morley was sitting on a chair opposite the accused and Ms Freeman was standing. The accused was about a metre from Mr Morley. This was a distance which Mr Morley had selected because he thought it appropriate to avoid crowding the accused.

22 Whilst in discussion with the accused, Mr Morley recorded rough notes of what was being said on an assessment form. He is not now sure whether he was doing that at the moment he felt something, but the next thing he can remember is what he described as "an explosion in my head". He felt something fall out of his mouth and saw blood. He heard Ms Freeman scream. He saw her lying on the floor and he saw the accused stamping on the side of her head while she was lying there. He can recall people coming into the room and screaming at the accused. Ms Freeman was dragged from the room and the door was slammed. Mr Morley was in the corridor and he could see that Ms Freeman was in a very bad way.

23 William Andrew Alison is a clinical mental health nurse employed at the Swan Valley Centre and on 6 March 2004 he was on duty. At about 12.50 pm he saw Mr Morley and Ms Freeman arrive at the centre with the accused. He observed the accused to be pleasant and amiable, with no signs of aggression. He showed the three arrivals through to the treatment room and went to alert the doctor to the fact that they were there. About five minutes had passed when he heard female screams. They were high-pitched and sounded as if somebody was being attacked. Mr Alison ran to the treatment room and unlocked the door. He was accompanied by John Russell.

24 When he entered the room, Mr Alison saw Ms Freeman on the floor in the middle of the room. She was lying flat on her back and not moving. Almost immediately, the accused appeared next to Ms Freeman, grabbed her hair and began lifting and banging her head forcibly on the floor. He did this four or five times and the sound of her head hitting the floor (which was concrete below lino) was described as very loud. Ms Freeman was not moving or making any attempts to defend herself. Mr Alison was

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unaware whether she was conscious or unconscious, but certainly could hear her breathing which was noisy.

25 Mr Alison moved towards the accused and pushed him off Ms Freeman. However, he moved around Mr Alison and began to stomp his foot on Ms Freeman's head. He did this three or four times and Mr Alison could see blood around Ms Freeman's left ear and on the floor around her head. Mr Alison then pushed the accused away and up against a wall. He saw Ms Freeman dragged from the room by other staff. Whilst with the accused, Mr Alison had punches thrown at him and attempts made by the accused to kick him, but Mr Alison was able to keep out of his range. He managed to get to the doorway and shut the door, which could not be opened from the inside. He could see Ms Freeman lying in the corridor with staff attending to her. He also saw Mr Morley, who was walking about, with blood around his mouth.

26 It was Mr Russell who dragged Ms Freeman out of the treatment room. He saw much the same as Mr Alison, but he describes the accused's attack on Ms Freeman in more violent terms. He saw the accused jump into the air and then land on Ms Freeman's head with both feet. As he was dragging Ms Freeman from the treatment room, he saw the accused kick Ms Freeman on the right side of her head and stomp on her chest area. He describes the accused as being in a rage and uncontrollable.

27 Numerous members of the staff at the Swan Valley Centre ran to the treatment room where the accused attacked Mr Morley and Ms Freeman. It is unnecessary to recount all their evidence. Rachel Williams got to the treatment room as four or five people were dragging Ms Freeman out of it. She saw the accused who she described as "a really big built man", his upper body filling the doorway. She could tell that he was a Maori. She observed the accused kicking Ms Freeman in the head with his right foot as she was dragged out. She counted at least five times that he kicked her and the kicks were aimed at the back of her head, at the base of her skull. Ms Williams says that the accused was kicking with full force and had big steel-capped boots on. She is the only witness who describes the accused as wearing boots. Ms Wilkie said that he was not wearing anything on his feet when he left the house. Ms Williams recalls seeing blood on the boots and Ms Freeman's head covered in blood.

28 Ms Williams remained at the door of the treatment room, which was kept secure until police arrived. She could hear the accused inside the room "ranting and raving". She could make no sense of what he was

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saying. Then she heard the police arrive. She noticed that the accused got more and more quiet.

29 Amongst the police who were called were members of the Tactical Response Group. They managed to enter the treatment room and one of the TRG members (Operator 12) saw, on entry to the room, the accused standing facing them and holding a long metal pole above his head in a threatening manner. Operator 12 called out "Police, police, drop the weapon", but the accused failed to comply and remained standing in an aggressive way, with the weapon raised. Operator 12 then yelled out "Taser, Taser", and fired the Taser device which immobilised the accused. He fell to the floor, dropping the metal bar. He was then handcuffed. There was, what appeared to be, a pen sticking out of his neck. This was removed by a doctor and the accused was handed over to investigative police and psychiatric staff. They then took him in a police van to Graylands Hospital. Ms Williams went with Monica Johnson in a community health car behind the police van. At Graylands Hospital, the van went into a secure area of the Frankland Centre, but Ms Williams and Ms Johnson played no further role.

30 Detective Constable Raymond Keith Wood was present at the Perth Watch-House when the accused was presented to him on Saturday night, 6 March, at about 7.45 pm. He was later transferred back to the Frankland Centre, where he was put in an observation room and spoken to by Dr Ranjit Parakkat. Constable Wood was present whilst the doctor asked the accused what had caused the problem at the Swan Valley Centre that day. The accused did not answer. He was asked whether he had "lost it" and he said he had. He was asked whether he had been hearing voices and he said he had not.

31 Detective Wood then asked the accused what had happened at the hospital earlier that day and the accused replied that he had heard voices telling him to do things. He said, "I have to act on what they tell me." He added that he just lost it and said that he had lost it because people were after him. When he was asked who they were, he said he did not know. When asked whether he could remember what he had done at the hospital, he said he could "sort of remember" what he had done.

32 Mr Morley was presented to the emergency department at Swan District Hospital at 1332 hours on 6 March 2004. He was found to have a laceration to the left upper lip, loss of three teeth and loosening of three teeth. He was then referred to a dentist for ongoing assessment and treatment of his injuries.

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33 Mr Morley was seen by a dental surgeon at the Forrest Chase Dental Centre. He required ongoing dental treatment and was referred to an implant surgeon. He has not yet resolved the dental problems with which he has been left.

34 Ms Freeman was seen on 6 March 2004 at the accident and emergency department at Royal Perth Hospital. She had multiple injuries and was noted to have had an early, brief epileptic seizure. The injuries consisted of brain trauma with right-sided skull fractures, associated with multiple areas of brain contusion; multiple right-sided facial bone fractures and chest trauma with bilateral pneumothoraces which required intercostal tube drainage.

35 Ms Freeman had a very turbulent and complicated recovery period. She required admission to intensive care for 38 days and suffered a number of significant complications, including jugular vein deep venous thrombosis, acute renal impairment, abnormal liver function, hypertension and upper gastrointestinal haemorrhage.

36 Ms Freeman was transferred to the Shenton Park Campus of Royal Perth Hospital and on 22 April 2004 she was seen by Dr Kim Fong, specialist in rehabilitation medicine at Royal Perth Hospital. She was then displaying severe levels of confusion and agitated behaviour.

37 It took Ms Freeman three months to emerge from post-traumatic amnesia and initially she had indications of significant cognitive deficiencies. She was discharged home on 9 July 2004, by which time she had regained independence for ambulation and most of her self-care and domestic tasks. She then underwent a period of out-patient rehabilitation therapy and as at 3 June 2005, she continued to experience a number of residual symptoms and disabilities, which included restriction of her right shoulder and left knee function, loss of smell and taste, impaired swallowing, reduced sensation in the right T4 dermatome, hypersensitivity to noise and various cognitive deficits, including reduced concentration and memory. It is the opinion of Dr Fong that Ms Freeman's injuries endangered her life and were likely to endanger it, or at least were of such a nature as to cause or be likely to cause permanent injury to health. Fortunately, she achieved a recovery outcome which was far in excess of initial predictions, based on the severity of her brain trauma.

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Legal principles

38 The accused is charged with the attempted murder of Ms Freeman, or in the alternative, with intent to maim, disfigure, disable or do grievous bodily harm to her, unlawfully doing grievous bodily harm to her. He is also charged with intent to maim, disfigure, disable or do grievous bodily harm to Mr Morley, unlawfully doing grievous bodily harm to him.

39 To be convicted of any one of these offences, it must be proven beyond reasonable doubt that the accused committed them.

40 The decision of the Court of Criminal Appeal in Ward v The Queen(2000) 23 WAR 254 establishes authoritatively in this State that the first question I am required to determine is whether the accused person is proven beyond reasonable doubt to have (a) made an attempt to kill Ms Freeman; (b) in the alternative, did grievous bodily harm to her; (c) did grievous bodily harm to Mr Morley.

41 In the context of a trial for wilful murder, the Court of Criminal Appeal (Kennedy, Pidgeon, Wallwork, Scott and Wheeler JJ) in Ward v The Queen held that it was correct for a trial Judge to direct a jury in a trial for wilful murder where the defence of insanity was raised, that they must first consider whether the accused person was criminally responsible for a killing which he had admitted, having regard to the terms of s 27 of the Criminal Code. Only if that question was answered adversely to the accused did the next question, namely, what was his intention at the material time, require consideration. In other words, the issue of insanity falls to be determined before the issue of intent. The same principle is applicable to the offences with which the accused is here charged. If there was an attempt to kill Ms Freeman, or in the alternative, if grievous bodily harm was done to her and grievous bodily harm was done to Mr Morley, the question of the criminal responsibility of the accused is to be determined before the question of the intent with which he acted at the time of committing the offences.

42 There is a complication in relation to the first count, namely, that for there to be an attempt to kill, there must be an intention to kill. The ingredients of the crime are three:

(1) an attempt;

(2) the intention of the accused at the time of the attempt must have been to kill; and

(3) the intent must have been unlawfully to kill.

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43 On all the evidence before me, I am satisfied beyond reasonable doubt that from the actions of the accused in stamping on the head of Ms Freeman and kicking her in the head as described by witnesses, there was an attempt to kill her. An attempt to commit an offence is defined in s 4 of the Criminal Code in the following way:

"When a person, intending to commit an offence, begins to put his intention into execution by doing an act that is more than merely preparatory to the commission of the offence but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention."

44 The offence of attempted to murder is contained in s 283 of the Criminal Code which simply states that any person who attempts unlawfully to kill another is guilty of a crime. In the present case, I am satisfied beyond reasonable doubt that what the accused did to Ms Freeman constituted an attempt in the sense that intending to kill her he began to put his intention into execution by doing acts that were more than merely preparatory to the commission of the offence. He did not fulfil his intention to such an extent as to commit the offence, but attempted to commit it.

45 The finding of an intent to kill Ms Freeman is a finding by way of inference. The intention of the accused can only be found by way of inference from the acts done by him. I accept beyond reasonable doubt that he did kick Ms Freeman in the head and stomp on her head, as described by the witnesses whose evidence I have summarised. In concluding by way of inference that the accused intended to kill Ms Freeman when stomping on her head and kicking her in the head, I am satisfied beyond reasonable doubt that this is the only inference that can be drawn. There is no other inference favourable to the accused which can be drawn. It could not be concluded that he was simply intending to harm her without more. The ferocity of his attack leads me to conclude beyond reasonable doubt that there could only have been one intent and that was the intent to kill her.

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46 In relation to Mr Morley, I am satisfied beyond reasonable doubt that the accused caused him grievous bodily harm. Grievous bodily harm is defined in s 1 of the Criminal Code in the following way:

"The term 'grievous bodily harm' means any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health."

47 The offence of with intent to maim, disfigure, disable or do grievous bodily harm to another unlawfully doing grievous bodily harm to that person is contained in s 294(1) of the Criminal Code, which provides:

"Any person who, with intent to maim, disfigure, or disable any person, or to do some grievous bodily harm to any person, or to resist or prevent the lawful arrest or detention of any person -

(1) Unlawfully wounds or does any grievous bodily harm to any person by any means whatever;

…

is guilty of a crime … ."

48 I am satisfied beyond reasonable doubt that the attack which the accused made on Mr Morley was such as to cause, or at least likely to cause, permanent injury to his health. The loss of teeth that he sustained constituted, in my view, a permanent injury to his health.

Criminal responsibility

49 The accused, by his defence, raises the defence of insanity. That is a defence contained in s 27 of the Criminal Code, which is in the following terms:

"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."

50 The term "mental impairment" is defined in the Criminal Code to mean intellectual disability, mental illness, brain damage or senility.

51 Mental illness is, in turn, defined in the following way:

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"The term 'mental illness' means 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."

52 Having raised the question of unsoundness of mind, there is an onus of proof on the accused to establish that his mental condition was such as to bring him within the provisions of s 27 of the Criminal Code: Armanasco v The Queen (1951) 52 WALR 78. It is sufficient if such fact is established to my satisfaction on the preponderance of probability that he was of unsound mind at the time he committed the offences on Ms Freeman and Mr Morley: R v Porter (1933) 55 CLR 182. It is necessary only that he establishes to that standard that, at the time of doing the acts in question, he was in such a state of mental impairment as to be deprived of one of the three capacities, namely, the capacity to understand what he was doing, or the capacity to control his actions, or the capacity to know he ought not to do the act. The question is whether he can establish on the balance of probability that he was of unsound mind on the day when the acts were done.

The defence case in relation to unsoundness of mind

The opinion of Dr Tanney on the issue of insanity

53 Dr Bryan Tanney was called to give evidence for the accused. Dr Tanney is a consultant psychiatrist who qualified in psychiatry in Canada in 1975. He also has Australian qualifications which he gained in 2003. He has practised consistently in the field of psychiatry since 1970. He has held the position of professor of psychiatry at the University of Calgary in Canada, and after his arrival in Western Australia in 2000 he took an appointment as consultant forensic psychiatrist at the Franklin Centre of Graylands Hospital in Mount Claremont. He still holds this position but also practises privately. Dr Tanney has testified in insanity cases in the Supreme Court and he has appeared before me. I accept him as a person well-qualified to express independent expert opinion on the state of the human mind.

54 In evidence before me, Dr Tanney identified and adopted a report he had made to counsel for the accused on 12 September 2005. He elaborated upon certain aspects of the report and he was cross-examined at some length.

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55 In his report of 12 September 2005 Dr Tanney expressed the opinion that at the time of the commission of the offences against Ms Freeman and Mr Morley, the accused was experiencing a state of mental disease which rendered him in such a state of cognitive dysfunction that his ability to reason was substantially impaired. This impairment in turn deprived him of the ability to control his actions at the time of the offences and also deprived him of the capacity to know that he ought not to do the acts. (The reference to "mental disease" harks back to the use of that phrase in s 28 of the Criminal Code prior to 1996. The phrase is now "mental impairment".)

56 In his report, Dr Tanney outlined the background and development of the accused. There was nothing remarkable about his personal growth and development, and no previous mental health treatment. However, in December 2002 the accused's mother died unexpectedly in New Zealand after suffering a stroke. The accused went back to New Zealand for the funeral, and upon his return to Perth his partner and his family members noted a change in him which they described as "withdrawn, stopping mixing with people, and stopping playing rugby". He was described by his partner as looking vacant and as if he was in another world. The accused himself told Dr Tanney that in early 2003 he began to experience strange dreams which made him feel "like a different person, different inside". He began reading books about astrology and telepathy and claimed that he could help people to control their minds. Later in 2003 his partner returned home one evening and said that "bikies had been trying to pick her up". This, in turn, led to evolving an increasingly disturbing thought content of a paranoid nature, related to motorcycle gangs. He told his partner he believed that somebody had put a curse on him. He could feel himself changing as a person. He physically assaulted his partner and accused her of having an affair. According to Dr Tanney, his partner reported a "slow, gradual disintegration" of the accused over a period of about one year.

57 Dr Tanney describes, in his report, a history from the accused of the events which led to the offences committed on 6 March 2004. On the night of 5 March he believed that he saw a shadow and that it was somebody standing with a shotgun at his door. He stayed up all night to watch his child to assure her safety. On the morning of 6 March he had thoughts that he was being chased by his cousin and he heard a voice saying, "I am coming to shoot you." Other voices suggested that there were people who wanted to kill his child. He left the house in his vehicle with his daughter and eventually made his way to the Midland police station. The accused told Dr Tanney that at the police station, when the

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police officer had left the interview room, the accused heard voices which began insistently to counsel him to protect himself, telling him "They're out to get you ... They will punish you … do evil to me." This suggested to him that his daughter was in jeopardy and he would lose her to foster care and would not see her again.

58 The accused told Dr Tanney that the two staff from Swan Valley Mental Health included a witch doctor who was "an evil one … an (evil bitch)". This was a reference to Ms Freeman, who was also described as "a witch doctor". The accused claimed that she said his daughter "was hers". He considered they were "phony doctors" and "undercover agents for somebody".

59 The accused said that when taken to the Swan Valley Centre he felt "spooked and in danger". On being taken to the treatment room he saw secured doors and felt that he was going to be kept there for life. He wanted to escape. He says he asked Ms Freeman how long he would be there and she said she was unsure how long he would be in the hospital. He claims he heard voices saying "it will be forever".

60 The accused told Dr Tanney that whilst in the interview room he heard numerous voices including the voices of his partner and his father, the latter telling him not to listen and that he would be all right. He heard a voice telling him that he had better do something and that people were out to get him, that he was to die and that this would be the end. He claimed that when looking at the two mental health staff he saw a smile on the face of one of them and heard a voice which said he would be sedated, raped and have his toes cut off. He felt that the staff were undercover agents "for bad people". He then "raged .. and lost it." He contended that after he had committed the offences the voices became intense and told him to kill himself. He made an effort to stab himself with whatever was available and barricaded himself into the room until taken away by the Tactical Response Group.

61 A psychiatric registrar interviewed the accused at the East Perth lockup on the evening of the offences. There were extensive further interviews over the following month. The accused remained hyper-vigilant and fearful for weeks. He was given intensive nursing supervision with medication in the form of oral and intramuscular sedating antipsychotics and other drugs. Paranoid beliefs and disordered thought processes involving hallucinations and telepathy continued for several months. Various medications were trialled, and at about the four-month mark the accused's beliefs in telepathy and his experience of

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auditory hallucinated voices subsided and eventually fully abated. Dr Tanney reports that from that time until the present there have been no recurrence of disturbing thought experiences and no episodes of aggression of physical harm towards other persons. The accused himself now regards his offences as not having been committed by himself.

Mental impairment

62 Dr Tanney is of the opinion that the clinical syndrome of signs and symptoms and the response to antipsychotic treatment together define a psychotic mental disorder or mental impairment in the accused. In his opinion, the accused experienced a mental impairment episode at the time he committed the offences. That impairment can be diagnosed as schizophrenia, paranoid type. Dr Tanney refers to two particular diagnostic symptoms. They are the description of the voices or auditory hallucination (including the command imperative nature of their content to him) and the delusion of thought insertion or broadcasting (telepathic communication).

63 Dr Tanney points out that in the few days prior to the offences there was a surge in the experience of auditory hallucinations and on the day of the offences the hallucinations were clearly present. Also present was the delusion of thought insertion and broadcasting in which the accused believed himself able to read the minds of people close to him. The experiences of the accused in being commanded and acting on the voices which he heard and the insertion of the thoughts of others into his mind fulfilled, for Dr Tanney, the formal recognised symptoms of delusions and/or hallucinations which are prominent features of paranoid schizophrenia.

64 According to Dr Tanney, the origins of paranoid schizophrenia are not fully known, but there is often a genetic component. This appears likely to be the case in relation to the accused. In Dr Tanney's view there is unlikely to have been any drug-induced psychosis present at the time of the commission of the offences.

65 I am satisfied on the balance of probability that the opinion of Dr Tanney should be accepted. That is, the accused at the time of the commission of these offences was suffering from a mental impairment by way of mental illness. That mental illness was an underlying pathological infirmity of the mind in the form of paranoid schizophrenia.

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Deprivation of the capacity to understand what he was doing

66 Dr Tanney is of the opinion that by reason of the mental impairment of the accused, he undertook aggressive action against Ms Freeman and Mr Morley because he believed his life was in danger and that they were an immediate source of danger to him. The precipitating stimulus was his belief that they were communicating with each other, which he misinterpreted as meaning that they were about to act against him. However, in the opinion of Dr Tanney the accused understood what he was doing when he committed the offences against Ms Freeman and Mr Morley. There was therefore no deprivation of the first of the three capacities set out in s 27 of the Criminal Code.

Deprivation of the capacity to control his actions

67 Dr Tanney is of the opinion that the accused was deprived of the capacity to control his actions at the time he committed the offences. In his view, the accused's capacity for rational reasoning was unavailable because his thought processes were impaired by mental disease. He could not think clearly, could not concentrate or focus properly. He was tired from lack of sleep and extremely aroused and vigilant due to a perceived danger. He had experienced not being in control of his own thoughts and feelings on many occasions over the preceding year, and had acted on the instructions or commands that he received from auditory hallucinations on many occasions. On the day of the offending he was experiencing an "abundance of voices" giving him different directions. He experienced knowing the thoughts of Ms Freeman because he thought he had the ability of telepathy. This is a confirming symptom of the presence of severe thought disorder in the sense that his own thoughts and those of others heard or inserted in his mind could not be fully separated. He was paranoid and he misinterpreted the smiles between Ms Freeman and Mr Morley. This, and the experience of voices directly telling him that they were about to harm him, impelled him to protect himself.

68 Dr Tanney is also of the opinion that the accused's initial attempts to get people to help him and protect him on the day of the offences were a response to an irrationally-based belief that he was in imminent danger of being significantly harmed. These actions were urged by voices that were a product of a mental disorder.

69 In short, Dr Tanney is of the view that the accused lacked the rational and emotional capacity to control his actions when he committed the offences. There was therefore a deprivation of the second of the three capacities set out in s 27 of the Criminal Code.

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Deprivation of the capacity to know he ought not to do the act

70 Dr Tanney is of the opinion that at the time the accused committed the offences he mistakenly believed that the resources which were being made available to him were in fact a source of danger to him. Based on his delusional beliefs and urged by auditory hallucinations, the right or appropriate resources became wrong or dangerous ones. His mental disorder thus deprived him of his ability to rationally evaluate options for his protection. This reasoning was even further affected by hearing voices and/or receiving telepathic messages to the effect that his physical safety was at immediate risk. Survival needs thus became his paramount consideration. His desire to harm himself was a response to the direction of hallucinations. This self-harming illuminates the lack of capacity to know that he ought not to do the acts he carried out. Thus Dr Tanney is of the opinion that the accused's inability to rationally evaluate options to problem-solving whilst he was cognitively impaired and intensely emotionally aroused, left him without the effective capacity to know that he ought not to do the acts of harming Ms Freeman and Mr Morley. Dr Tanney is therefore of the opinion that there was a deprivation of the third of the loss of capacities referred to in s 27 of the Code.

71 Dr Tanney has expressed an opinion in relation to the second paragraph of s 27 of the Code. That paragraph is as follows:

"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 the foregoing provisions of this section, 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."

72 Dr Tanney is of the opinion that the accused was affected by delusions that were paranoid and persecutory in nature. The police and health services were considered to be phonies acting as undercover for a group of persons whom he believed were an increasing threat to the safety of himself and his daughter. Immediately before he committed the offences he was "barraged by voices" suggesting that it was necessary for him to escape or protect himself. In Dr Tanney's opinion, the accused's actions in accordance with his delusional beliefs were due to what he perceived as a need to protect and defend himself from Ms Freeman and Mr Morley. Thus the accused was affected by delusions on specific matters within the meaning of the second paragraph of s 27 of the Code,

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but in the opinion of Dr Tanney, the provisions of the second paragraph of s 27 of the Code do not lead to the result that the accused is criminally responsible for the acts committed by him because, although affected by delusions, he is nevertheless entitled to the benefit of the preceding paragraph of s 27 of the Code.

73 Dr Tanney's overall opinion is that the accused had a genetic loading for psychotic illness. He experienced his first episode of paranoid schizophrenic illness for over a year prior to the offences he committed. His condition became more severe because he was without treatment. He was suffering a mental impairment and he lacked the capacity to control his actions and the capacity to know that he ought not to do the acts because they were wrong when he committed the offences. His acts of harm to Ms Freeman and Mr Morley were based on a delusional state of mind brought about by a mental disorder (mental impairment) and his actions were understood by him as actions needed to protect himself from the likelihood of imminent and immediate harm.

Cross-examination of Dr Tanney

74 Dr Tanney was cross-examined at some length by the prosecutor, who questioned him on a number of aspects of the case to ascertain whether there was any inconsistency between what he had been told and what the independent evidence revealed. Without going to the detail of this cross-examination, it is sufficient to say that Dr Tanney was unable to see anything in any of the material presented to him which caused him to alter the opinion he had expressed.

75 Some new factors were introduced in cross-examination. One was the production of fragments of or cut-up photographs where the accused had apparently cut away some part of the photograph to leave only his partner in it. The person cut away was the accused. Dr Tanney's explanation was as follows:

"---It seems to me there's a pretty clear indication that there's a split being suggested here; that they are not together in these pictures any longer.

Although you hadn't seen these before, you had had discussions with his partner, Ms Wilkie, and from what she told you, it was your understanding he had been cutting his own picture out rather that (sic) her picture being cut out?---Well, I don't know. I think that he'd been taking his own – I think that the issue here was that this was the behaviours that he was showing in

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response to the mistaken belief that he had that began in about October, that the bikies were there, the bikies were causing a threat, his wife was being unfaithful to him with bikies and with other people and that perhaps she couldn't be counted on. There was even an episode in which he assaulted her.

Okay. Now, are you able to say anything, are you able to offer an opinion as to the consistency of this material with what you have understood and explored about Mr Tarau's condition?---It's consistent with the evolution of that period between October and March and I don't see – there are dates on some of them. The pictures could've been old pictures that then he proceeded to cut up."

76 Dr Tanney was also cross-examined about writings of the accused which had been located in his vehicle by Constable Aaron Cleaver on 6 March 2004. Some of this material contained disturbing statements. Examples quoted by the prosecutor were:

"I'll rip you to shreds. Don't need no leads. Start with the legs. Shock and you're scared. Snap you into what you're going to do. … Dripping down the spine. Dragging your head across the floor. Your marks make a crooked line. … I'll slap you like the opposite sex where snapping neck but I be your friend. … Times like I could rage and kill, lose dignity, pride, respect, reasons why. … Good with the bad. I'll fuck you up so bad but I'm glad to see you listening, sitting there on your chair with a cup I'll be pissing in. I made you laugh. That's pretty good. I split a fucking head in two sitting on a chair … ."

77 Dr Tanney's response was as follows:

" … It's my belief that what he was writing about was his partner and the nature of their relationship at that time. We can recall that he did physically assault her at one point, I think because he was unwell. It's disorganised writing. I'm not sure it's appropriate, although I appreciate what you have done, to pick out little pieces of it. Really in context one might just say, 'You know what? None of this makes any sense' and simply put it aside. I see it as conjecture. It's precognitive. There's something here that he was not even aware of thinking about at the time. There was a firm thought in his head in the sense that he had any intention to do anything about this at the time. It

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was just floating around. On the other hand all of the stuff about legs and kicking - you have to remember that this man's major claim to having an important role in life was as a Rugby player. It's part of the reason why he came here. It's what gave him his sense of value. He was going to be playing high-grade Rugby, so to see him talk about kicking and about things, that doesn't surprise me if we're talking about a man – if we wanted to follow this through and say he is writing about having it hurt, about how that makes him feel. If he wants to feel good again, he would talk about the things that he is good at and that would be in Rugby using his legs and his feet. It's conjecture. That's what I'm really saying. I think one could take it from any number of directions."

78 Dr Tanney was also questioned about whether the information the accused had given him might be categorised as a reconstruction by the accused of what had occurred when Ms Freeman and Mr Morley were attacked. It was put to Dr Tanney that the evidence revealed that the accused was quite calm and appreciative of the attention that both Ms Freeman and Mr Morley were giving him. He showed no signs of distress, anxiety or concern. The prosecutor suggested that this was to be contrasted with what the accused told Dr Tanney was concerning him about Ms Freeman and Dr Morley. The prosecutor's question and Dr Tanney's response was as follows:

"They can't both be right?---I think they could. I think they could. These – and I don't want to reflect on the two people who were there because they are trained professional people and Mr Morley makes the point that as they go along in doing an assessment of a person who they don't know who talks about – sounds as if they're mentally unwell and talks in a fearful way, one of the very clear risks at every moment to every mental health worker is that that might be directed at them, and I think Mr Morley says, 'We were very aware and assessing as we went along whether there was some sense of risk from this man,' and I think that what happened was that the risk didn't just happen like that. The risk to these two mental health workers wasn't there at the moment that he went to the transit police; it wasn't there when he went to the police station. It began when Ms Freeman walked in the room and he believed that he heard her say this, and it escalated from there and I think the significant escalation occurred when they took him into the hospital by the back door and he saw rooms that were secure

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rooms and he had these voices that were saying to him, 'They're going to stick needles in you; they're going to keep you here for the rest of your life; they're going to rape you; they're going to rape your daughter with a bottle,' and it was directed at this – at this single person. Now, would they be aware of that is I think the question you've come back to several times and I can – this is what Mr Tarau told me was going on as they walked in to the building. He said, 'My heart was bearing a thousand times an hour. I wasn't thinking clearly because of the voices. I was tired; I couldn't concentrate or focus properly,' and it was because the voices were talking to him consistently – what he called 'the abundance of voices'."

79 I put to Dr Tanney:

"Let's just pause there for moment, but I think what Mr Mischin wants to know is could all this escalation in his mind take place without some outward appearance?"

80 Dr Tanney elaborated as follows:

"---And I think the point is that it can and this is the true tragedy of this circumstance; even for - even for trained mental health workers, that this could happen. Now, it happened very quickly and, again, we know that this can happen, that a person can be calm and that something can just take them too far, but the escalation in this circumstance happened in the course of that several minutes after they got there, when he felt that they'd taken him to a place that he would never leave again and never be able to escape from."

81 In the end, Dr Tanney was firmly of the view that the story presented by the accused had been remarkably consistent from the day when he was first seen at the Franklin Centre, within eight or nine hours of the events occurring, through to the most recent detailed examination on 6 September 2005.

82 It is unnecessary to refer to further passages in the cross-examination of Dr Tanney. The opinions he had expressed in his report of 12 September 2005 were not qualified or altered by him in any way.

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Conclusion

83 I accept the opinion of Dr Tanney that at the time of the commission of the offences the accused was in such a state of mental impairment as to deprive him of the capacity to control his actions and the capacity to know that he ought not to do the acts he did because they were wrong. These matters have been proven on the balance of probability.

84 It follows that the accused should be found not guilty on counts 1 and 3 on the indictment on account of unsoundness of mind. It is unnecessary to consider count 2 which is in the alternative to count 1. Pursuant to s 147(2) of the Act, I therefore enter a judgment of acquittal on the offences charged in counts 1 and 3 on the indictment on account of unsoundness of mind in respect of the accused.

85 Pursuant to s 149(1) of the Act, I am required to deal with the accused under the provisions of the Criminal Law (Mentally Impaired Accused) Act 1996. Section 21 of that Act requires me to make a custody order in respect of the accused, and I make that order. The consequence of it is that the accused is to be kept in custody in accordance with the provisions of Part 5 of that Act. Pursuant to s 24, he is to be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Mentally Impaired Accused Review Board, until released by an order by the Governor. It is unnecessary that I deal with the other provisions of Part 5 of that Act. It is also unnecessary to refer to the evidence of Dr Tanney on the workings of the Board. This evidence was given without objection because it related to the future of the accused in the event of my making a custody order. It is sufficient to say that Dr Tanney impressed on the Court that the safety of the public is a key consideration in any decisions made by the Board on the future of the accused.