The State of Western Australia v Taylor - [2021] WASC 470

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- TAYLOR [2021] WASC 470
CORAM:   DERRICK J
HEARD:   6 - 8 DECEMBER 2021
DELIVERED          :   22 DECEMBER 2021
FILE NO/S:   INS 87 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
MYLES WILLIAM TAYLOR
Accused

Catchwords:

Criminal law - Trial by judge alone - Murder - Insanity - Whether accused was mentally impaired - Whether accused lacked capacity to control actions - Whether accused lacked capacity to know that he ought not to do the act - Whether accused was intentionally intoxicated

Legislation:

Criminal Code (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)
Mental Health Act 2014 (WA)

Result:

Accused found not guilty on account of unsoundness of mind
Custody order made

Category: B

Representation:

Counsel:

Prosecution	:	Mr N R Cogin
Accused	:	Mr A G Elliott

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Legal Aid (WA)

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

Evans v The State of Western Australia [2010] WASCA 34
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Porter [1933] HCA 1; (1933) 55 CLR 182
R v Radford (1985) 142 SASR 266
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
State of Western Australia v Hone [2007] WASC 64
The State of Western Australia v Brown [No 3] [2013] WASC 349
The State of Western Australia v Daly [2019] WASC 386
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Jones [2018] WASC 395
The State of Western Australia v Knock [2020] WASC 246
The State of Western Australia v Lang [No 2] [2016] WASC 206
The State of Western Australia v Marotta [2018] WASC 329
The State of Western Australia v Siddique [No 2] [2016] WASC 358
The State of Western Australia v Strabach [No 2] [2012] WASC 227
Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254

DERRICK J:

Introduction

The accused is charged on an indictment dated 31 March 2021 with two offences of murder. Count 1 alleges that on 26 April 2020 at Hocking the accused murdered Lesley Ann Taylor. Count 2 alleges that on 28 April 2020 at Hocking the accused murdered Michael Wayne Taylor.
Ms Lesley Ann Taylor (Lesley) was the accused's 64-year-old mother. Mr Michael Wayne Taylor (Michael) was the accused's 65-year-old father.[1]
[1] I will from this point onwards use the first names of the deceased for ease of reference and distinction. No disrespect is intended by my use of their first names.
On 4 May 2021 Corboy J made an order that the accused be tried by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA).
The accused's trial took place before me on 6 - 8 December 2021.
At the commencement of the trial the accused was arraigned on the charges and entered pleas of not guilty on account of unsoundness of mind to each of the charges.[2] Accordingly, the accused did not dispute that he had caused the deaths of Lesley and Michael (hereafter referred to collectively as ‘the deceased’).
[2] CPA, s 126(1)(d).
At the end of the trial the State did not dispute that the accused should be found not guilty of both charges on account of unsoundness of mind. Indeed the State, while acknowledging that the matter was ultimately one for me to determine, positively contended that I should find the accused not guilty of both charges on account of unsoundness of mind.[3]
[3] ts 147, 8 December 2021.
In light of the accused's pleas, the evidence adduced at trial, the relevant provisions of the Criminal Code (WA) (Code) and the positions adopted by the parties at trial, the questions that arise for my determination are as follows:
1.Is the accused precluded from relying on the defence of insanity under s 27(1) of the Code because he intentionally caused himself to become intoxicated at the time that he did the acts that caused the deaths of the deceased within the meaning of s 28(2) of the Code?
2.If the accused is not precluded from relying on the defence of insanity under s 27(1) by reason of s 28(2), was the accused mentally impaired within the meaning of s 27(1) of the Code at the time that he did the acts that caused the deaths of the deceased?
3.If the accused was mentally impaired at the time that he did the acts that caused the deaths of the deceased, did his mental impairment deprive him of any of the capacities specified in s 27(1)?
If the first of the above stated questions is answered in the negative and the second and third of the above stated questions are answered in the affirmative, the accused must be found not guilty of the two charges on account of unsoundness of mind. If the first of the above stated questions is answered in the affirmative, or if either the second or third of the above stated questions is answered in the negative, the accused must, in light of the admissions made by him (referred to below) be found guilty of each of the two charged offences of murder.
In order for me to answer the three questions that arise for my determination, it is necessary for me to first address and deal with a number of topics. The topics that I will address before turning to answer the three questions that arise for my determination are as follows:
1.Legal principles relating to trials by judge alone;
2.Summary of evidence adduced;
3.Statement of agreed facts;
4.Admissions made by the accused;
5.Elements of the offence of murder;
6.Applicable legal principles relating to s 27(1) of the Code;
7.Applicable legal principles relating to s 28(2) of the Code and the interaction between s 27(1) and s 28(2);
8.Applicable legal principles relating to the assessment of expert psychiatric opinion evidence where the issue of insanity is raised;
9.Accused's prior presentations to hospital in connection with his illicit substance use;
10.Accused's behaviour on 13 April 2020;
11.Accused's triple zero call made on 26 April 2020;
12.Accused’s arrest on 26 April 2020;
13.Interview conducted by the police with the accused on 26 April 2020;
14.Assessment and treatment of the accused after his admission to the State Forensic Mental Health Service's Frankland Centre (Frankland Centre) on 29 April 2020;
15.Accused's blood analysis results;
16.Accused's evidence;
17.Psychiatric opinion evidence; and
18.Toxicology opinion evidence.

Trial by judge alone - legal principles

Section 120(1)(a) of the CPA provides that I may make any findings and give any verdict the jury could have made or given if the trial had been before a jury.
Section 120(2) of the CPA provides that my judgment must include the principles of law that I have applied and the findings of fact on which I have relied. It is therefore necessary for me to state at this point a number of important principles that I must apply in determining the charges.

Burden and standard of proof

The accused is presumed innocent of the charges that have been brought against him.
The burden of proving the accused's guilt is on the State.
The standard of proof that the State must achieve is proof beyond reasonable doubt. For the State to discharge its burden of proving the guilt of the accused it must prove beyond reasonable doubt that he is guilty of the charged offence. I cannot find the accused guilty of a charged offence unless the State proves to my satisfaction beyond reasonable doubt each element of the charged offence. If the State fails in this regard then the charge is not proven and the only proper verdict is one of not guilty.

Multiple Charges

There are two separate charges on the indictment. Each charge could have been the subject of a separate trial before a different judge. However, separate trials have not been held because it would not be fair to the accused or the State for the evidence to be taken on two separate occasions.
Although the charges have been heard together it is important for me to at all times remember that there are two separate charges. I must deal with each charge separately and make a decision on each charge separately. When I am dealing with each charge I must consider only the evidence that is relevant to the charge.
I must not allow a verdict that I arrive at on one of the charges to lead me automatically to the same verdict on the other charge. My verdicts do not have to be the same on each charge. Having considered all of the evidence I may find the accused guilty of both charges, or not guilty of both charges on account of unsoundness of mind, or not guilty of one charge on account of unsoundness of mind and guilty of the other charge. All possible permutations are open to me.
I must not draw any inference against the accused or make any conclusions against him or be prejudiced against him because there is more than one charge. The State has decided to charge the accused with two offences. My duty in respect of each charge is to consider the evidence relevant to that charge and on the basis of that evidence arrive at my verdict.

Accused giving evidence

The accused gave and adduced evidence in this case. He did not have to give or adduce evidence. Consistently with what I have said about the presumption of innocence and the burden and standard of proof no accused person has to give or adduce evidence. But in this case the accused chose to both give and adduce evidence and, as a result, to submit himself to cross‑examination by the prosecutor.
The fact that the accused chose to give and adduce evidence does not in any way detract from the important principles of our system of law that the onus is on the State to prove each charge that it presents against the accused and that the accused is presumed to be innocent unless the charge is proved beyond a reasonable doubt.

Prejudice and sympathy

I must not allow prejudice or sympathy to play any part in my determination of the charges.
I must decide the case based on the evidence produced during the trial. It is my responsibility to ensure that whatever verdicts I deliver are delivered solely on the basis of the evidence produced during the trial and not on any other matters.
I must assess the evidence dispassionately.
I must not guess or speculate about matters that are not in evidence or look for theories that are not supported by the evidence.

Publicity

I must disregard any media reports of the case.

Inferences

In a criminal trial there is no room for guessing, speculating, or looking for theories that are not supported by the evidence. However, I may draw inferences from facts that I find to have been established.
I must not, in respect of any matter on which the burden of proof lies on the State, draw an inference against the accused unless I am satisfied that it is the only inference that is reasonably available to be drawn. This is a reflection of the requirement that the State must prove the charges beyond reasonable doubt.
In relation to any facts from which I am considering drawing an inference against the accused I am not required to consider each fact in isolation. Rather, I must consider the facts as a whole to determine whether the inference is the only inference reasonably available.

Summary of evidence adduced

At the commencement of the trial counsel for the State and counsel for the accused informed me, in substance, that it had been agreed between the State and the accused that a number of documents and other items forming part of the prosecution brief could be tendered by the State with the accused's consent in the absence of the relevant witnesses.[4] The documents and items identified by counsel (specified materials) consisted of witness statements, reports and other documents, photographs and recordings. In addition, and again at the commencement of the trial, counsel for the State and counsel for the accused informed me that a statement of agreed facts dated 30 November 2021 which had been signed by the accused (statement of agreed facts) had been prepared for tendering as an exhibit.[5]
[4] ts 29 - 32, 6 December 2021.
[5] ts 29 - 32, 6 December 2021.
Section 93 of the CPA provides that if an accused pleads not guilty to a charge on account of unsoundness of mind and the judge is satisfied that the only fact in issue is whether under s 27 of the Code the accused is not criminally responsible for an act or omission on account of unsoundness of mind, the judge may decide the issue on any evidence and in any manner the judge thinks just, if the prosecutor consents and the accused does not object to the judge doing so and if it is in the interests of justice to do so. Having regard to s 93, the positions taken by the parties and the admissions made by the accused (referred to below), I was satisfied that the only fact in issue was whether the accused was not criminally responsible for the charged offences under s 27(1) of the Code and that it was in the interests of justice to receive into evidence the statement of agreed facts and the specified materials for the purpose of determining whether the accused was not criminally responsible under s 27(1) of the Code. I therefore permitted the statement of agreed facts and the specified materials to be tendered as exhibits in the absence of the relevant witness during the course of the trial.
In addition to tendering the statement of agreed facts and the specified materials, the State called the following witnesses to give evidence in rebuttal of the accused’s case:
1.Dr Adam Brett, Consultant Psychiatrist; and
2.Professor David Joyce, Physician, Clinical Pharmacology and Toxicology.
As I have already indicated, the accused elected to give evidence. In addition, the accused called Dr Victoria Pascu, Consultant Forensic Psychiatrist, to give evidence as part of his case.

Statement of agreed facts

The statement of agreed facts[6] is in the following terms:
[6] Exhibit 2.
1.The accused in this matter is the 36 year old son of the victims. At the time of their death he was 34 years old. He is 165 cm tall and of medium build. The victims are the accused's father (Michael Wayne Taylor, who was aged 65) and his mother (Lesley Ann Taylor, who was 64 years old).
2.The family lived together at 12 Lotherton Way, Hocking. Around lunch-time on Sunday 26 April 2020, the accused woke up hearing voices in his head. He went to his backyard and picked up a brick and threw it through a rear window of the house directly behind his (4 Rosedale Vista, Hocking). The accused returned to his bedroom and began striking the wall with a geologist's hammer which has a pointed end and a flat end.
3.The accused walked to the lounge room of the house where he saw his father and struck him on the head with the flat end of the hammer causing his father to fall.
4.The accused then struck his mother on the head with the flat end of the hammer causing her to fall. She fell on her front and the accused repeatedly struck her to the back of the head with the flat end of the hammer.
5.The accused showered and when he finished, he heard breathing and returned to the lounge room and found his father sitting upright. The accused has again struck his father several times to the head with the hammer until he believed he was dead.
6.At 3.50 pm on 26 April 2020 the accused called 000 and stated that they better send a cop car as he had just killed his parents. The accused said his name was Myles Taylor and he was still at the premises waiting for police. He provided the address to the 000 operator as 12 Lotherton Way Hocking ("the Residence"). When asked about what happened, the accused said, "I think everyone knows what happened."
7.Police responded to the 000 immediately and attended at the Residence. The first attending officer attended the scene and arrived at approximately 4.00 pm. The accused came to the front door and was arrested. The accused was compliant with the first attending officers.
8.Police immediately searched the Residence and located the accused's parents with significant injuries. Lesley Taylor was deceased. Michael Taylor was alive but non-responsive and his injuries would later prove to be fatal. No other persons were at the Residence.
9.The accused was arrested by police and when later interviewed made full admissions in relation to his actions. The accused's father was conveyed to Royal Perth Hospital where he remained on a life-support machine with non-survivable injuries and died on 28 April 2020.
10.The forensic pathologists who examined each deceased (Dr Cooke and Dr Ong) concluded that each deceased died as a result of head injuries (multiple blows and fractures).
11.Forensic Police who later examined the Residence located a geologist's hammer. The hammer is consistent with the accused's description of the murder weapon and consistent with the forensic medical evidence in respect to the fatal injuries.
The statement of agreed facts is without more proof of the facts stated therein.

Admissions

At trial the accused made the following admissions pursuant to s 32 of the Evidence Act 1906 (WA):[7]
1.Lesley Ann Taylor died on 26 April 2020 and Michael Wayne Taylor died on 28 April 2020.
2.Lesley Ann Taylor died as a result of head injuries. I did the acts which caused Lesley Ann Taylor's death by repeatedly striking her to the head with a hammer. At the time of doing those acts I intended to cause her death.
3.Michael Wayne Taylor died as a result of head injuries. I did the acts which caused Michael Wayne Taylor's death by repeatedly striking him to the head with a hammer. At the time of doing those acts I intended to cause his death.
[7] Exhibit 1.
The admissions made by the accused are without more proof of the facts admitted.

Elements of the offence of murder

The elements of the offence of murder each of which the State must prove beyond reasonable doubt in order to prove that the accused committed the charged offences are as follows:
1.The accused was the offender, that is, it was the accused who did the things which the State asserts constituted the offence;
2.The accused killed the person named in the charge;
3.The killing of the person by the accused was unlawful; and
4.The accused intended to cause the death of the person, or intended to cause a bodily injury to the person that was, objectively, of such a nature as to endanger, or be likely to endanger, the person’s life.
Any person who causes the death of another person, either directly or indirectly, is deemed to have killed that person.[8]
[8] Code, s 270.
As I have indicated, the accused admitted at trial that he killed the deceased by repeatedly striking each of them to the head with a hammer.
It is unlawful to kill any person unless the killing is authorised, justified or excused by law.[9] The accused's conduct in killing the deceased will be excused and therefore not unlawful if he is not criminally responsible for killing them having regard to s 27(1) of the Code.
[9] Code, s 268.
As is apparent from my statement of the fourth element of the charged offences, in order to prove that the accused is guilty of murdering the deceased the State must prove that at the time of doing the acts that caused their deaths the accused actually had an intention to cause their deaths, or to cause to them a bodily injury that was, objectively, of such a nature as to endanger or be likely to endanger their life. However, given that the accused has raised the defence of insanity under s 27(1) of the Code it is necessary to decide if he is criminally responsible for causing the deaths of the deceased before deciding if the State has proved that he had one of the requisite intentions for murder. The issue of insanity falls to be determined before the issue of intent.[10] If the insanity defence is not established, it then becomes necessary to consider whether the State has proved that the accused had one of the requisite intentions.
[10] Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 [25], [55] ‑ [57], [103].

As I have indicated, the accused admitted at trial that at the time that he killed the deceased he intended to cause their deaths. Accordingly, if the accused's insanity defence is not established I will necessarily find that the accused intended to cause the deaths of the deceased; that is, I will find the fourth element of each of the charged offences proved.

Insanity - applicable legal principles[11]

[11] My following statement of the applicable legal principles substantially reproduces what I wrote in The State of Western Australia v Knock [2020] WASC 246 [38] - [52].

Every person is presumed to be of sound mind, and to have been of sound mind at any time which is in issue, until the contrary is proved.[12] The accused has the burden of proving that he was not of sound mind at the time that he did the acts which are alleged to constitute the charged offences. The accused must prove that he was not of sound mind on the balance of probabilities.[13] If the accused does not prove that he was not of sound mind on the balance of probabilities the State will have proved the unlawfulness element of the charged offences beyond reasonable doubt.
[12] Code, s 26.
[13] R v Porter [1933] HCA 1; (1933) 55 CLR 182, 191.
Whether the accused proves that he was not of sound mind depends on the application of s 27 of the Code. Section 27 of the Code is in the following terms:
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(2)A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
As is evident from its terms, s 27 contains two bases for relieving a person of criminal responsibility. The first of these is where the person is in a state of mental impairment that deprives them of one of the relevant capacities. The second only arises where a person has the relevant capacities but nonetheless has a delusion which affects some specific matter that is relevant to the charge. In this case only s 27(1) is relevant with the accused's case being that his mental impairment deprived him of the capacity to control his actions and the capacity to know that he ought not to do the acts which caused the deaths of the deceased. The accused does not contend that his mental impairment deprived him of the capacity to understand what he was doing.

Mental impairment - mental illness

Section 1(1) of the Code defines 'mental impairment' to mean an 'intellectual disability, mental illness, brain damage or senility'.
Section 1(1) of the Code also defines the term 'mental illness'. The definition is in the following terms:
[A]n 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.
What is a mental illness is a question of law. Whether or not the facts disclose a state of mental illness is a question of fact.[14]
[14] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 49, 60.
In The State of Western Australia v Jones[15] Jenkins J made the point that the definition of 'mental illness' contained in s 1(1) of the Code reflects statements made by King CJ in R v Radford[16] about the meaning of the expression 'disease of the mind' which is used in the common law concept of insanity. Her Honour summarised the statements of King CJ in the following terms which I adopt:[17]
1.'Disease of the mind' is synonymous with 'mental illness';
2.A temporary disorder or disturbance of an otherwise healthy mind caused by external factors is not properly regarded as a disease of the mind;
3.Major mental illness or psychoses such as schizophrenia are clearly diseases of the mind as are physical diseases, such as psychomotor epilepsy and arterio sclerosis, when they affect the soundness of the mental faculties;
4.Disease of the mind is to be distinguished from 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self‑control and impulsiveness'; and
5.In order to constitute insanity in the eyes of the law the malfunction of the mental faculties 'must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can properly be termed mental illness, as distinct from the reaction of a healthy mind to extraordinary stimuli'.[18]

Capacity to control actions

[15] The State of Western Australia v Jones [2018] WASC 395 [43].

[16] R v Radford (1985) 142 SASR 266, 274 - 275.

[17] The State of Western Australia v Jones [43].

[18] In R v Falconer (54, 60, 76, 82) King CJ's comments as summarised by Jenkins J were generally approved of. When R v Falconer was decided s 27 of the Code was differently worded. The subsequent amendments to the Code are consistent with King CJ's statement of principles, although the definition of 'mental impairment' is broader than that of 'disease of the mind' which was considered by King CJ.

There is, in my view, no justification for failing to give the phrase 'capacity to control' as used in s 27(1) its ordinary plain meaning. The ordinary plain meaning of the word 'capacity' given the context in which it is being used in s 27(1), is 'a mental power; a faculty'.[19] The ordinary plain meaning of the word 'control' is 'the power of restraining especially self-restraint'.[20]
[19] Australian Concise Oxford Dictionary (5^th ed), page 203.
[20] Australian Concise Oxford Dictionary (5^th ed), page 303.Error! Bookmark not defined.
In my opinion the ordinary plain meaning of the words 'capacity to control' used in s 27(1) and a review of the relevant authorities supports the conclusion that a person is deprived of the capacity to control their actions within the meaning of the section if they are deprived of the capacity to make a conscious decision to act (that is, to act voluntarily) or if they are deprived of the capacity to refrain or restrain themselves from doing a willed act (sometimes also referred to as the capacity to exercise the power of choice to act).[21] Thus, in my opinion, if the effect of a person's mental impairment is to deprive them of the capacity to refrain from doing an act, that is, to exercise the power of choice to act, they will, by reason of their mental impairment, be deprived of the capacity to control their actions within the meaning of s 27(1) even though the act was a willed or deliberate act; an act done as a result of a consciously made decision. It necessarily follows that in determining the effect of a person's mental impairment on their capacity to control their actions the focus will often be on the extent to which their delusions or hallucinations (if any) controlled their actions or deprived them of the power of choice.[22]
[21] R v Falconer (39 ‑ 40, 46 - 47); State of Western Australia v Hone [2007] WASC 64 [22]; The State of Western Australia v Strabach [No 2] [2012] WASC 227 [64] - [65]; The State of Western Australia v Brown [2013] WASC 349 [43] - [44]; The State of Western Australia v Siddique [No 2] [2016] WASC 358 [51] - [57]; The State of Western Australia v Marotta [2018] WASC 329 [39] - [45]; The State of Western Australia v Jones [46].
[22] The State of Western Australia v Marotta [44]; The State of Western Australia v Jones [46].
In expressing the conclusion stated in the previous paragraph as to the proper interpretation of the phrase 'capacity to control…actions', I am conscious that statements made by some members of the court in R v Falconer appear to limit the meaning and scope of the phrase to insane involuntary action, that is, to acts occurring independently of the person's conscious decision making process.[23] However, given that in R v Falconer the court was dealing with the question of automatism, in my view these statements should not be read as attempts to define the full meaning of the words 'capacity to control…actions' used in s 27(1).[24]
[23] R v Falconer (60, 71, 82).
[24] The same view was expressed by Commissioner Sleight in The State of Western Australia v Strabach [No 2] [64] - [65].
Nothing I have said should be taken as indicating that a person will be deprived of the capacity to control their actions merely by reason of them having a significantly impaired capacity to resist an impulse or an emotion. A significantly impaired capacity to resist an impulse or an emotion does not equate to a deprivation of a person's capacity to control their actions within the meaning of s 27(1).[25]

Capacity to know ought not to do the act

[25] The State of Western Australia v Marotta [45].

As to what is meant by the phrase 'capacity to know that he ought not to do the act or make the omission', in R v Porter[26] Dixon J said the following:
We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.
[26] R v Porter (189 ‑ 190).
Dixon J went on to say that what is meant by 'incapacity' in this context is 'not that he reasoned wrongly, or that being a responsible person he had … unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong'.[27]
[27] R v Porter (190).
In Stapleton v The Queen[28] the High Court held that it is not, in order for a person to possess the capacity to know that he ought not to do an act or make an omission, necessary for the person to know that the act or omission is wrong in the sense of contrary to law. What is required is that the accused knows right from wrong according to reasonable standards, not legality from illegality. [29] However, the Court went on to observe:[30]
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 (his insane judgment even treating the act as one of inexorable obligation or inescapable necessity) he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.
[28] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358.
[29] Stapleton v The Queen (367, 375).
[30] Stapleton v The Queen (375).
The leading decision in this State on the meaning of the phrase 'capacity to know that he ought not to do the act or make the omission' is Evans v The State of Western Australia.[31] In relation to this issue McLure P said:[32]
The High Court in Stapleton elsewhere (367) identified the test as being whether at the time of the commission of the act the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act.
There is no suggestion of any material distinction between the common law and s 27 on this point. Thus the real issue for the jury in this case was whether the appellant had established on the balance of probabilities that at the time of the killing his mental impairment resulted in a complete incapacity to reason as to what is right or wrong according to ordinary standards. The term 'know' means 'understand', 'appreciate' or 'comprehend'. An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from understanding that he (or she) ought not do the act. Knowledge (short of understanding) that to kill is punishable by law does not prevent such a finding. Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct. Whether an act is right or wrong is determined by reference to an objective standard. The question is whether the appellant had a complete incapacity to reason as to what was, by that objective standard, right or wrong. In this case the appellant's subjective belief was relied upon by the experts to support the conclusion that he was in a psychotic state that prevented rational reasoning on right or wrong.
[31] Evans v The State of Western Australia [2010] WASCA 34.
[32] Evans v The State of Western Australia [30] ‑ [31].
Wheeler JA, with whom Owen JA agreed, said:[33]
The authority most directly on point in this context is Stapleton v The Queen (1952) 86 CLR 358. In that case, having regard to the state of the evidence, it seems unlikely that there would have been any practical difference in result whether the jury had been directed in terms of a capacity to understand that an act was wrong according to ordinary standards, or to understand that it was contrary to law. It appears that that was the reason why the court would have 'hesitated' to order a new trial simply because the jury had been directed that the test of insanity was whether the accused knew that firing a shot at another person was against the law (at 375). However, the court made it clear that such a direction was erroneous (at 367 ‑ 368).
It is not easy to summarise the detailed discussion of authority in Stapleton in a way which is capable of being fashioned into an appropriate direction in every case of insanity. However, the principles extracted from that discussion appear to focus upon two issues. First, the ability to know that one 'ought not' to do an act or make an omission is a capacity to know that one 'ought not' to do it according to ordinary standards of right and wrong, rather than knowledge that the act is unlawful. As the High Court observed, from a practical point of view it often may not matter much, because in relation to serious offences the two ideas 'are not easily separable' (at 375). However, in cases where, as here, the distinction may arise, it should be made. The second principle is that the capacity which must be found to be lacking is not merely a capacity to appreciate, in some abstract sense, that others would view the act as wrong. Rather, it is a capacity of the particular accused either to discern the difference between moral good and evil, or to 'think rationally' of the reasons which would lead ordinary people to consider the act to be right or wrong.
In my view, the question in this case made it imperative that her Honour explain to the jury the two principles which I have described above. For completeness, I would add that it was not, in my view, necessary for her Honour to adopt the formula contended for by ground 2(b) of the grounds of appeal. Although a direction as to whether the accused was capable of reasoning 'with some moderate degree of calmness' or, as it was put in Porter, with 'a moderate degree of sense and composure' is sanctioned by authority, it may in some cases, in my view, run a risk of confusing the jury. That is because these offences generally take place in circumstances in which the accused is, plainly, not composed and not calm. The relevant issue is not whether the accused is, in fact, at the particular time, reasoning calmly and rationally. The question is whether the accused's mental condition is such that the accused is incapable of thinking in a rational way.
[33] Evans v The State of Western Australia [59] ‑ [61].
In my opinion the position can, in light of the above referred to authorities, be stated as follows: a person will be deprived of the capacity to know that they ought not to do the act or make the omission if they have a complete incapacity to understand, appreciate or comprehend that the act or omission is wrong according to ordinary standards (as distinct from unlawful).
It needs to be borne in mind that it is dangerous to test a person's capacity to know that they ought not to do an act or make an omission by reference to the standards of persons who do not suffer from a mental illness.[34]
[34] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138; Evans v The State of Western Australia [34], [63].

Intoxication and insanity - applicable legal principles

Section 28 of the Code provides:
(1)Section 27 applies to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means.
(2)Section 27 does not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not.
(3)When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.

The meaning of 'intoxication' and 'disordered'

In The State of Western Australia v Herbert[35] Jenkins J made the following statements in relation to the meaning of 'intoxication' for the purposes of s 28(1) and s 28(2), and the meaning of 'disordered' for the purposes of s 28(1):
[35] The State of Western Australia v Herbert [2017] WASC 101 [58] – [59].
In The State of Western Australia v Brown [No 3] [2013] WASC 349 and The State of Western Australia v Lang [No 2] [2016] WASC 206, I considered the meaning of the Criminal Code s 28. I see no reason to change the views which I expressed in those cases. In Brown, I said:
[T]he Macquarie Dictionary defines 'intoxication' as including:
1.inebriation; drunkenness;
2.Pathol. Poisoning;
3.the act of intoxicating; and
4.overpowering action or effect upon the mind.
The Shorter Oxford Dictionary defines 'intoxication' as including:
1.The action of poisoning; the state of being poisoned; an instance of this.
2.The action of stupefying with a drug or alcoholic liquor; the making drunk or inebriated; the condition of being so stupefied or made drunk.
3.fig.
(a)The poisoning of the moral or mental faculties; a cause of this.
(b)The action or power of highly exciting the mind; elation beyond the bounds of sobriety.
…
In my view, the most appropriate definition of 'intoxication' is 'overpowering action or effect on the mind'.
…
The Macquarie Dictionary defines 'disordered' to mean 'in confusion' or 'mentally ill'. The online Oxford English Dictionary defines 'disordered' relevantly to mean:
1.put out of order, thrown into confusion; disarranged, confused, irregular; and
2.affected with bodily or mental disorder; out of health; deranged; morbid.
In my view, 'disordered' in s 28 means confused or disarranged. Thus, put in other words, the Criminal Code s 28 states that s 27 applies to a person whose mind is confused or disarranged by the overpowering action or effect on the mind of a drug, if the intoxication is caused without intention on his part. It is clear from what I have said that it is unnecessary for the purpose of s 28(1) that a large amount of the drug has to be consumed [45] - [49].
In Lang I said:
Using the same definition of intoxication, s 28(2) says that s 27 does not apply to a person who has intentionally caused his mind to be intoxicated; that is, subject to the overpowering action or effect of a drug or liquor.
I am of the opinion that s 28(2) refers to a person who has 'become intoxicated' at the time of the commission of the relevant acts.
The common law and cases on s 28 and similar statutory provisions do not suggest that an accused who has intentionally caused themselves at any point in the past to become intoxicated cannot rely on the defence of insanity. Neither does the State submit that is the meaning of the section. Rather, the State submits that s 28(2) says that the defence of insanity does not apply to a person who has intentionally caused himself to become intoxicated at any time in the past and that past intentional intoxication has contributed in some way to the deprivation of a relevant capacity.
In my opinion that is not the law. … That is, intentional intoxication disentitles, even a mentally impaired person, from relying on the defence of insanity. However, it is intentional intoxication at the time of the commission of the offence which the law is concerned about. In this respect I am of the view that s 28(2) reflects the common law as stated by Lord Birkenhead LC in Director of Public Prosecutions v Beard [1920] AC 479:
'But drunkenness is one thing and the diseases to which drunkenness leads are different things, and if a man by drunkenness brings on a state of disease which causes such a degree of madness, even for a time, as would have relieved him from responsibility if it had been caused in any other way, then he would not be criminally responsible.'
Thus, if an accused 'brings on' mental impairment by past intoxication with drugs or liquor, s 28(2) does not disentitle him from relying on the defence of insanity, unless he is intentionally intoxicated at the time he does the relevant acts...
On the other hand, I accept that the state of intoxication referred to in s 28(2) may be longer than the time the relevant accused subjectively experienced the effects of the drugs or liquor. In this respect, I agree with the conclusion of the Queensland Court of Appeal in R v Clough [2010] QCA 120 that the ordinary meaning of intoxication is wide enough to encompass more than comparatively short-term elation or stimulation.
It is a question of fact whether the accused was intoxicated and the accused's experience of the effect of the drugs or liquor may be only one of a number of matters relevant to that determination. Nevertheless, the drugs or liquor must still be found to have had an overpowering action or effect on the accused's mind at the time of the commission of the relevant acts, in order for him to be 'a person who has intentionally caused himself to become intoxicated' so that s 28 (2) can apply and s 27 does not apply [36] ‑ [42].

I respectfully adopt the above statements made by Jenkins J in The State of Western Australia v Herbert in relation to the meaning of 'intoxication' for the purposes of s 28(1) and s 28(2). Therefore, a person's 'mind is disordered by intoxication' within the meaning of s 28(1) if their mind is disordered by the overpowering action or effect of a drug or alcohol.[36] Similarly, a person 'becomes intoxicated' within the meaning of s 28(2) if their mind becomes subject to the overpowering action or effect of a drug or alcohol.
[36] Although Jenkins J comments were made in relation to the meaning of 'intoxication' for the purposes of s 28(1) and s 28(2) they are, in my view, equally applicable to the meaning of 'stupefaction' for the purposes of the sections. There is, in my view, no material difference between the meanings of these two terms as used in the sections. My references to 'intoxication' throughout the remainder of these reasons should be read as encompassing 'stupefaction'.
As I stated in the State of Western Australia v Knock, I take a different view to that expressed by Jenkins J in The State of Western Australia v Herbert in relation to the meaning of 'disordered' as used in s 28(1). For the reasons I gave in The State of Western Australia v Knock,[37] it is my view that the reference in s 28(1) to the 'disordered' mind of the person is intended to be, and should be read as, a reference to a person who is deprived of one of the capacities specified in s 27(1).
[37] The State of Western Australia v Knock [62] - [79].
It is not necessary for me to repeat herein the reasons that I gave in The State of Western Australia v Knock for interpreting the reference in s 28(1) to 'disordered' as being a reference to a person who is deprived of one of the capacities specified in s 27(1). It is not necessary for me to do so given that the position taken by both parties (which for reasons that I will in due course explain is, in my view, correct) is that s 28(1) does not apply to the accused's case because if the accused was intoxicated at the relevant time the intoxication cannot be said to have been 'caused without intention on his part'.[38]

When must the state of intoxication exist in order for s 28(2) to preclude reliance on s 27(1)?

[38] Accused's Closing Submissions dated 7 December 2021 (Accused's Submissions), par 30. It is to be noted that the accused contends that he has proved on the evidence that he was not intoxicated at the relevant time and that the State accepts this contention. Indeed, the State's positive submission is that I should find that the accused was not intoxicated at the relevant time: ts 149, 8 December 2021. This is an issue I will return to later in these reasons.

It is important to recognise that in order for s 28(2) to preclude reliance on s 27(1), the intoxication (that is, the overpowering action or effect of a drug or alcohol on the person's mind) must be found to exist at the time that the person did the relevant act or made the relevant omission.[39] The drugs or alcohol must be found to have had an overpowering action or effect on the person's mind at the time of the doing of the relevant act or the making of the relevant omission in order for the person to be 'a person who has intentionally caused himself to become intoxicated' within the meaning of s 28(2). Thus if a person 'brings on' a mental impairment by past intoxication with drugs or alcohol, s 28(2) will not disentitle them from relying on s 27(1).

The intention element

[39] The State of Western Australia v Lang [No 2] [2016] WASC 206 [42]; The State of Western Australia v Herbert [59]; The State of Western Australia v Daly [2019] WASC 386[39]; The State of Western Australia v Knock [58].

In both s 28(1) and s 28(2) the notion of 'intention' is linked to the state of intoxication; that is, the result of ingesting drugs or alcohol rather than the act of doing so. Accordingly, the fact that a person has voluntarily consumed drugs or alcohol which results in them becoming intoxicated will not of itself be sufficient to bring them within the terms of s 28(2). It is only where the person voluntarily consumes drugs or alcohol with the intention of causing themselves to become intoxicated, and they become so intoxicated at the time of doing the relevant act or making the relevant omission, that s 28(2) can operate to preclude them from relying on s 27(1).[40]
[40] The State of Western Australia v Knock [59].
It is a question of fact whether a person was at the relevant time intentionally intoxicated. The person's experience of the effect of the alcohol and/or drugs may be only one of a number of matters relevant to the determination of this question.[41]
[41] The State of Western Australia v Lang [No 2] [42]; The State of Western Australia v Knock [60].
The onus is on an accused to prove on the balance of probabilities that they did not intentionally cause themselves to become intoxicated.[42]

Does intentional intoxication preclude reliance on s 27(1) in circumstances where the person proves that their mental impairment deprived them of one of the specified capacities?

[42] The State of Western Australia v Herbert [57]; The State of Western Australia v Daly [37], [81]; The State of Western Australia v Knock [61].

In The State of Western Australia v Knock[43] I addressed the question whether a person who has intentionally caused themselves to become intoxicated is precluded by s 28(2) from relying on s 27(1) even where the person has proved on the balance of probabilities that at the time of doing the relevant act or making the relevant omission they were in such a state of mental impairment as to be deprived of one of the capacities specified in s 27(1). In addressing this question I expressed reservations about the correctness of the interpretation given to s 28(2) by Jenkins J in The State of Western Australia v Herbert which was that intentional intoxication, regardless of whether or not the intoxication as opposed to a mental impairment is the substantial or material cause of the person being deprived of one of the capacities specified in s 27(1), precludes the person from relying on s 27(1). Ultimately, however, I was not convinced that Jenkins J's interpretation of s 28(2) was wrong and consequently, for reasons of judicial comity, I adopted and applied her Honour's interpretation of the section.[44]
[43] The State of Western Australia v Knock [81] - [86].
[44] My adoption in The State of Western Australia v Knock of the interpretation given to s 28(2) by Jenkins J in The State of Western Australia v Herbert did not, given the findings of fact that I made, make any material difference to the outcome in The State of Western Australia v Knock.
In the present case neither party made any submission as to the correctness or otherwise of the interpretation given to s 28(2) by Jenkins J in The State of Western Australia v Herbert. It was not necessary for them to do so given that they both contended that I should find that the accused was not intoxicated at the time that he did the acts that caused the deaths of the deceased. In these circumstances, and for reasons that will become apparent when I turn to address the first of the questions that I have identified as arising for my determination, the present case is not one which necessitates or justifies the further consideration of the issue of the proper construction of s 28(2). I will, however, take this opportunity to state that my further reflections on the issue since delivering my decision in The State of Western Australia v Knock have done nothing to lessen my reservations about the correctness of the interpretation given to the section by Jenkins J in The State of Western Australia v Herbert.

Legal principles relating to the assessment of expert psychiatric opinion evidence where the issue of insanity is raised

In Hone v The State of Western Australia the Court of Appeal considered the significance of uncontradicted expert psychiatric opinion evidence where the issue of insanity is raised by an accused. In that case Miller JA said the following:[45]
[45] Hone v The State of Western Australia [124] ‑ [125]. See also the comments made by Steytler P at [6], [13].
Neither a jury nor a judge sitting alone are bound to accept and act upon expert evidence. But where there is no evidence to contradict that evidence, a verdict cannot be given contrary to it. The principles were well summed up by Roden J in Hall (1988) 36 A Crim R 368, where a number of relevant cases were reviewed. Roden J said:
'Juries are not bound to accept and act upon expert evidence. Nevertheless they are not entitled to disregard it capriciously. These two propositions have found expression and support in a line of authorities developed in England with regard to the defences of insanity and diminished responsibility.
In Rivett (1950) 34 Cr App R 87, Lord Goddard CJ, said (at 94):
"The second matter for emphasis is that it is for the jury and not for medical men of whatever eminence to determine the issue. Unless and until Parliament ordains that this question is to be determined by a panel of medical men, it is to a jury, after a proper direction by a judge, that by the law of this country the decision is to be entrusted."
The Court of Criminal Appeal was there dealing with medical evidence relating to a defence of insanity.
Eight years later, when dealing with a defence of diminished responsibility, Lord Goddard showed the other side of the coin, in Matheson [1958] 1 WLR 474; 42 Cr App R 145, saying (at 478; 151):
"While it has often been emphasised, and we would repeat that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors' evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be 'a true verdict in accordance with the evidence'."
In Bailey (1977) 66 Cr App R 31, another diminished responsibility case, Lord Parker CJ said (at 32):
"The court has said on many occasions that of course juries are not bound by what the medical witnesses say, but at the same time they must act on evidence, and if there is nothing before them, no facts and no circumstances shown before them which throw doubt on the medical evidence, then that is all that they are left with, and the jury, in those circumstances, must accept it."
In both Matheson and Bailey, manslaughter verdicts were substituted for jury verdicts of guilty of murder, on the basis that the medical evidence was "all one way", and there was no other material which would justify its rejection. It was otherwise in Walton [1978] AC 788; 66 Cr App R 25. The Privy Council was there considering a murder conviction where a diminished responsibility defence had been rejected. In the judgment, which was delivered by Lord Keith of Kinkel, there are observations that "the jury were entitled to regard (the medical evidence) as not entirely convincing", and "their Lordships have come to be of opinion that in all the circumstances the jury were entitled not to accept as conclusive the expression of opinion by Dr Bannister". After a consideration of both Matheson and Bailey, the following statement of principle was made:
"These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the defendant before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence."
The effect of those decisions is accurately summarised in Professor Smith's commentary on Walton in (1977) Crim LR 747 at 748:
"If the medical evidence is all one way and in favour of the accused and there is nothing in the facts and surrounding circumstances which could lead to a contrary conclusion, then a verdict against the medical evidence cannot be sustained. In the present case there were facts and circumstances in addition to the medical evidence and the jury was therefore entitled to reject that evidence." (370 ‑ 371)'
Allen J summarised the position as follows:
'There is no rule of law that a verdict of guilty will be quashed as unsafe in any case in which the verdict is inconsistent with medical evidence called for the accused - even where no medical evidence has been called for the Crown. On the other hand there is no rule of law that an appellate court will not quash such a verdict - refusing to do so because it is open to a jury to reject the opinion of any expert witness. Each case is unique. The totality of the evidence must be weighed: Walton [1978] AC 788; 66 Cr App R 25. In assessing medical evidence a multitude of factors must be taken into account - including the standing of the expert, whether he expresses his opinion with conviction or with hedging, whether the opinion expressed in its nature seems reasonable or fanciful, whether it incorporates assumptions not founded upon the evidence given, and whether the evidence given, upon which the opinion is based, is to be believed. It is clearly settled that it can be unreasonable for a jury to reject medical testimony: Walton; Chester [1982] Qd R 252; 5 A Crim R 296. (380 ‑ 381)'
In short, although neither a jury nor a judge sitting alone is bound to accept and act upon expert opinion evidence, if there is no evidence, fact or circumstance that contradicts the evidence or warrants a conclusion that the evidence is unreliable, a verdict cannot be given that is contrary to the evidence. Expert evidence cannot be disregarded capriciously.

Accused's prior presentations to hospital in connection with his illicit drug use[46]

[46] My stated findings in relation to the accused's prior hospital presentations in connection with his illicit substance use are based on pars 73 - 76 of the report of Dr Adam Brett dated 22 February 2021 (Exhibit 25). The relevant paragraphs of Dr Brett's report are based on records contained in the Western Australian mental health database to which Dr Brett had access for the purpose of enabling him to prepare his report. The records contained in the database would be admissible as business records under s 79C(2a) of the Evidence Act. Further, neither the State nor the accused took issue with the accuracy of Dr Brett's account of the accused's prior hospital presentations in connection with his illicit substance use. In these circumstances, I am satisfied that Dr Brett's account of the accused's prior hospital presentations in connection with his use of illicit substances provides a proper evidentiary basis for me to make the stated findings.

In November 2015 the accused presented to hospital on two occasions in connection with his illicit drug use.
On 27 November 2015 the accused presented to Joondalup Hospital emergency department. He had been brought to the hospital by his mother who was concerned about his drug use. The accused had been using methylamphetamine and synthetic marijuana.
On 30 November 2015 the accused presented to Joondalup Hospital emergency department with a drug induced psychosis. It was noted that he had been using synthetic cannabis on a daily basis and using methylamphetamine occasionally. The accused described visual and auditory perceptual disturbances. He was concerned that he was going to die. He was given an antipsychotic medication (Olanzapine).
During his admission on 30 November 2015 the accused at one stage became agitated and required Haloperidol and Midazolam. He required restraint. He did not have any mental health follow-up.

Accused's behaviour on 13 April 2020

During the trial the State adduced evidence of the conduct of the accused on 13 April 2020, that is, approximately two weeks before he killed the deceased. The evidence came from Senior Constable Steven Thomas and Constable Sarah Cullimore. The evidence of Constables Thomas and Cullimore was adduced by tendering with the consent of the accused the witness statements that they had provided and which formed part of the prosecution brief.[47] The statement of Constable Thomas is dated 30 April 2020.[48] The statement of Constable Cullimore is also dated 30 April 2020.[49]
[47] The witness statements were two of the witness statements that I admitted into evidence pursuant to s 93 of the CPA.
[48] Exhibit 3.
[49] Exhibit 4.
The uncontradicted evidence of Constables Thomas and Cullimore, which I accept, was as follows.
At about 12.25 pm on 13 April 2020 the officers were tasked to attend 12 Lotherton Way in Hocking (residence) in relation to a welfare check. The person who had contacted the police to conduct the welfare check was the accused.
The officers arrived at the residence at about 12.30 pm. On arrival they were met by the deceased. They introduced themselves to the deceased and told them that they were there to see the accused. They were invited inside the house.
As the officers entered the house the accused appeared in the hallway behind the deceased. The accused said, 'I called you, come down here' or words to this effect. The officers followed the accused down the hallway to his bedroom which was at the rear of the house.
Once in the bedroom Constable Thomas asked the accused how he and Constable Cullimore could help him. The accused said that he had called the police because he was seeing faces in the bed sheets and seeing birds on the walls. As the accused was describing what he could see he was pointing to his bed sheets and to marks on the walls of his bedroom. The accused also pointed to marks on the floors and said that 'they' (the marks) did not make sense and that it was suspicious.
The officers told the accused that they could not see what he was describing. The accused appeared slightly confused that neither of the officers could see the things that he was seeing.
Constable Thomas asked the accused whether he had taken anything during the day. The accused said, 'Yesterday I had meth'. Constable Thomas asked the accused whether he thought that this could be affecting his judgment. The accused shrugged his shoulders.
Constable Thomas asked the accused about his drug use and where he obtained his drugs from. At this point the accused became non-sensical and started talking about someone by the name of Scott. When Constable Thomas questioned the accused about what he was saying the accused continued not to make sense.
Both officers noticed that the air-conditioning vent on the ceiling of the accused’s bedroom had a cardboard box taped over it. Constable Thomas asked the accused why this was the case. The accused responded by saying something like, 'I covered it over as you can see the sky through there, and they watch me'.
Constable Thomas asked the accused if he felt like he wanted to harm himself and the accused replied, 'No'. Constable Thomas asked the accused if he felt like he wanted to harm anyone else and again the accused replied, 'No'. Constable Thomas asked the accused whether he would like to go to the hospital to get some help. The accused declined this offer. Constable Thomas asked the accused if he and Constable Cullimore could help in any other way. The accused declined this offer also. At this point Constable Thomas told the accused that he and Constable Cullimore would talk to his parents before they left.
The accused, throughout his interactions with the officers, spoke calmly and concisely and was compliant.
As the two officers and the accused walked back along the hallway towards the front of the house the accused pointed out a mark on the wall and said that the mark was a bird. He also pointed out other marks and said that there was something wrong with the marks. In addition, while walking down the hallway the accused stopped suddenly and asked the officers, ‘You hear that?’ The accused said that he could hear a car engine revving. The officers stopped talking and listened but could not hear anything. They told the accused they could not hear anything.

As the officers and the accused got to the loungeroom, the accused pointed to a pile of clothes on the floor and said that 'it' (the pile of clothes) did not make sense.
Constable Thomas then asked the accused to give him and Constable Cullimore some time to speak to his parents. The accused appeared happy with this and returned to his room.
The two officers then spoke to the deceased and told them what had occurred in the accused's bedroom. They also spoke to the deceased about the accused’s behaviour generally. They explained to the deceased why they did not think they had grounds for issuing a police order against the accused or for detaining him under the Mental Health Act 2014 (WA) (in essence, because he had not performed an act of violence and did not appear to be a threat to himself or to anyone else). They advised the deceased that if they feared for their safety and no longer wanted the accused in their house, they should apply to the Magistrates Court for a Family Violence Restraining Order. They provided the deceased with some information about how to go about obtaining such an order.
At about 12.55 pm the officers left the residence and continued with other duties. Once they were back in their vehicle Constable Cullimore arranged for a District Operations Supervisor to review their actions so as to ensure that the supervisor agreed with how they had dealt with the matter.

Accused's triple zero call

As revealed by the statement of agreed facts, at 3.50 pm on 26 April 2020, that is, very shortly after the accused had killed the deceased, he called triple zero. The recording of the triple zero call reveals that the accused’s brief exchange with the triple zero operator was as follows:[50]
[50] Exhibit 5. The recording of the triple zero call was one of the recordings that I admitted into evidence pursuant to s 93 of the CPA.
Operator: Thank you. Police Emergency. How may I help you?
Accused: Yeah. Better send a police car around to number 12 Lotherton Way, Hocking.
Operator: Yeah. What for?
Accused: Oh, I've just killed my parents.
Operator: Okay. And what was your name?
Accused: Myles Taylor.
Operator: Mike is it?
Accused: Myles Taylor.
Operator: Myles. So, what actually happened?
Accused: Um, I think everyone knows, but yeah. You just probably wanna send a cop car around here.
Operator: Okay. What's your phone number there Myles?
Accused: Um [number redacted].
Operator: Okay. And you're still there are you?
Accused: Yeah. I'm – I’m waiting.
Operator: Alright. Okay. No worries. I'll send the police. Thank you.
Accused: Alright. Thanks, mate.
During the call the accused spoke to the operator in a matter of fact, relatively calm and friendly way. In short, the way in which the accused spoke to the operator and reported what had occurred was completely incongruous with what he had just done and his situation generally.

Accused's arrest

The first police officer to arrive at the scene of the alleged offences was First Class Constable Simon Williams. Constable Williams was the officer who apprehended and arrested the accused.
Constable Williams’s evidence was adduced by tendering with the consent of the accused his statement dated 5 June 2020 which formed part of the prosecution brief [51] as well as the footage obtained from his body camera.[52] Constable Williams’s evidence as set out in his statement was corroborated by the footage obtained from his body camera.

Constable Williams's evidence

[51] Exhibit 6. The witness statement was one of the witness statements that I admitted into evidence pursuant to s 93 of the CPA.

[52] Exhibit 7. The body camera footage was one of the recordings that I admitted into evidence pursuant to s 93 of the CPA.

Constable Williams’s uncontradicted evidence, which I accept, was as follows.
About 3.55 pm on Sunday 26 April 2020 he was tasked to attend the residence. At the time of being allocated this task he was only a 4-minute drive away from the residence. He received information via the police computer system that a male person by the name of Myles had called police and stated that he had killed his parents.
While on route to the residence he activated his body camera.
He arrived at the residence at about 4 pm. He was the first officer to arrive. He parked his car on the street directly in front of the residence. There was no one else in the street and he could not hear any noise coming from the residence.
He approached the front door of the residence. The front door consisted of a wooden door and a flyscreen door. Both doors were closed. He knocked on the flyscreen door and took a few paces back.
About 10 seconds after knocking on the flyscreen door the wooden front door opened. He was about 5 metres away from the door at this time. It was difficult for him to see through the flyscreen door as he had the sun shining directly into his eyes. He shouted out, 'Myles, is it?' He heard a male voice from inside the house say, 'Yeah mate'.
At this point he moved a couple of paces to his right to block the sun out of his eyes and tried to look through the flyscreen door. He immediately saw the legs of person laying on the ground inside the residence near the front door. He could see a lot of blood on the floor.
He requested urgent assistance over his radio. He then directed the accused to come outside saying, 'Myles, come outside for me mate'. The accused replied, 'Can I put a shirt on?' He said, 'No, come out now and we will have a chat'.
He could see that the accused was approaching the flyscreen door. He instructed the accused to walk out and to show him his hands.
The accused opened the flyscreen door. The accused was only wearing a pair of denim shorts. He did not observe any blood or any external injuries on the accused.
At this point he suspected that the accused had caused significant injuries to at least one person inside the house. He was unable to see if the accused had anything in his pockets or tucked into his waist band. He therefore drew and covered the accused with his firearm as the accused walked out of the residence with his hands in the air. He instructed the accused to lay down on the ground. The accused complied with this direction and laid down on the ground on his front.
Once the accused had laid down he was satisfied that the accused was going to comply with his directions. He could not observe any weapons on the accused. He therefore re-holstered his firearm and advised the accused that he was going to put him in handcuffs and that they would then have a chat. The accused responded, 'Yep, that's fine'.
He then moved towards the accused and secured him in handcuffs. He secured the accused’s hands behind his back. He arrested the accused on suspicion of wounding and cautioned him. He told the accused that anything he said would be recorded on his body camera. The accused responded, 'Yep that's fine. Yeah, no problem at all, yep'.
The accused was calm, clean and was not sweating or shaking.
Moments later other police began to arrive at the residence. He remained with the accused while other police officers went inside the residence.
He advised the accused that he was going to stand him up and move him away from the door and further down the driveway. He did this and sat the accused down on the driveway.
He advised the accused that he was going to search his pockets. The accused said, 'Yeah that's fine'. He asked the accused if he had anything on him. The accused responded that he had nothing on him.
He again advised the accused that he was under arrest on suspicion of wounding and that he was not obliged to say anything unless he wished to do so. The accused responded, 'Yeah, no problem’.
A short time later he asked the accused if he was okay and if he had any injuries. The accused responded, ‘No mate, I’m fine’.
He and another police officer remained with the accused. The accused was asked to put on a blue forensic suit and a pair of gloves. The accused agreed to do so. He removed the accused’s handcuffs to enable the accused to put the forensic suit on. The accused put the suit on without incident. He then assisted the accused into the back of the secure police van.
Prior to putting on the forensic suit the accused said something similar to, ‘I had a shower before you got here anyway’.
After the accused had been secured in the police van he conducted a hand over with a detective from the homicide squad who was at the scene. He had no further involvement in the matter.

Accused's demeanour at time of his arrest

The footage obtained from Constable Williams’s body camera reveals that the accused's overall demeanour from the time of his initial contact with Constable Williams was polite, co-operative, calm and unemotional. The accused's appearance and manner of interacting with Constable Williams was completely incongruous with what he had just done and his situation generally.

Accused's interview

The accused was interviewed on the evening of 26 April 2020. He was interviewed by Detective Senior Constable Michael Smirk and Detective Senior Constable Benjamin Hoeve. The interview commenced at 8.58 pm and concluded at 10.08 pm. The audio-visual recording of the interview was tendered by the State as part of its case.[53]

Accused's statements and account of events

[53] Exhibit 10. The recording of the interview conducted with the accused was one of the recordings that I admitted into evidence pursuant to s 93 of the CPA.

During the interview the accused said, among other things, the following:
1.He had consumed 'two points' of methylamphetamine about two days ago.[54] The normal effect on him of two points of methylamphetamine is that it 'just keeps him up'.[55] The two points of methylamphetamine kept him up for a while and since then he has been sleeping;[56]
[54] Prosecution Brief (PB) 877; ts 4.
[55] PB 877; ts 4.
[56] PB 877; ts 4.

2.He has never been diagnosed with a 'mental condition' but he has experienced hearing voices that others could not hear.[57] The same sort of thing happened to his Nana;[58]
[57] PB 881; ts 8.
[58] PB 882; ts 9.
3.He started hearing voices at the age of 17. He used to tell his mum. She would say, 'Don't be stupid';[59]
[59] PB 881 - 882; ts 8 - 9.
4.He kept hearing the voices. It is for this reason that in 2003 he moved to Melbourne. Once he moved to Melbourne the voices stopped.[60] He put this down to 'maybe I've moved away from the source of the problem'.[61] However, when he moved back to Perth 'this sort of stuff started again …in the last probably 10 to 12 months…and it's progressed or gotten to this state of things now';[62]
[60] PB 882, 883; ts 9, 10.
[61] PB 882, 897; ts 24.
[62] PB 883, 897; ts 10, 24.
5.He hears voices through the walls, in his head and from different directions.[63] He does not know if anyone else can hear the voices;[64]
[63] PB 882; ts 9.
[64] PB 883; ts 10.
6.He sees 'stuff like objects in the sheets and that';[65]
[65] PB 883 - 884; ts 10 - 11.
7.He has never sought any professional help[66] but has told 'mum and dad';[67]
[66] PB 883; ts 10.
[67] PB 886; ts 12.
8.He called the police 'a month before' and 'a week before' the incident to come around to his house as he was hearing voices.[68] The police did not come to the house on the earlier occasion and just spoke to him over the phone[69] and told him 'to seek some medical help'.[70] On the most recent occasion the police attended his home and came into his room because 'all the sheets looked like stuff'.[71] His mum and dad were 'carrying on' and told him not to call the police;[72]
[68] PB 884; ts 11.
[69] PB 886; ts 13.
[70] PB 914; ts 41.
[71] PB 886; ts 13.
[72] PB 914; ts 41.
9.Sometimes the voices tell him to kill himself and other times the voices talk to him like in a normal conversation;[73]
[73] PB; 884; ts 11.
10.From about 10 months ago the voices have been 'every day, constant';[74]
[74] PB 884 - 885; ts 11 - 12.
11.The last time he heard the voices was when he was sitting in the police station custody area.[75] The voices were 'basically saying how could you do that to your mum and how could you do that to your dad?'[76]
[75] PB 885; ts 12.
[76] PB 885; ts 12.
12.He started seeing things from around the last 10 months.[77] He sees things in the bed sheets, in the clouds, walking through walls, in the carpet, while watching television and 'just everywhere'.[78] Sometimes he sees dragons and demons;[79]
13.He is pretty sure he is not the only one who can see these things;[80]
14.He has felt stuff crawling under his skin and the other day when he was standing in his room he saw his hands and feet go totally black.[81] He does not think this had anything to do with drugs;[82]
15.He has been consuming methylamphetamine since he was 16 years but on an 'on and off' basis.[83] He uses methylamphetamine by smoking it;[84]
16.He has had thoughts that people were conspiring against him. He hears things such as that he is 'gay' and 'a paedophile';[85]
17.People sometimes say stuff and he thinks, 'How do you know that?' and that the only way they could know is by watching him in his room and spying on him;[86]
18.Even on the television he hears things that show that the people on the television know things about him.[87] It is like he is having a conversation with the television;[88]
19.He tries his best to 'nut it out' but he is at his 'wits end'.[89] His parents denied everything in relation to him hearing voices and seeing objects that others cannot see.[90] His mother would say, 'Oh you're off your head. You don't know what you're talking about. Don’t be stupid'.[91] It is not the drugs, although that is what his Mum always blames. 'It cannot be the drugs... because this is happening ... It's on like TV';[92]
20.He can always hear a car in his head as well, like a revving exhaust. It is Scott Robertson's car.[93] Scott is a guy he worked with; [94] and
21.He does not understand why he has been 'targeted on such an epic scale' with the voices and the people on the television.[95]
[77] PB 887; ts 14.
[78] PB 887 - 888, 891; ts 14 - 15, 18.
[79] PB 888, 891; ts 15.
[80] PB 893; ts 17.
[81] PB 891 - 892; ts 18 - 19.
[82] PB 891 - 892; ts 18 - 19.
[83] PB 892; ts 19.
[84] PB 893; ts 20.
[85] PB 895; ts 22.
[86] PB 895; ts 22.
[87] PB 896; ts 23.
[88] PB 896; ts 23.
[89] PB 897; ts 24.
[90] PB 897; ts 24.
[91] PB 897; ts 24.
[92] PB 916; ts 43.
[93] PB 930; ts 57.
[94] PB 927 - 928; ts 54 - 55.
[95] PB 939; ts 66.

As to what occurred on the day of the alleged offences, the accused provided the following account during the interview.
He woke up at approximately 1.00 pm in his room.[96] He slept all day the previous day.[97] The voices started as soon as he woke up.[98] He believed they were coming from the next-door neighbour's house.[99] He does not remember what the voices were saying.[100] The neighbour's window is always a bit ajar and there is always a light on that is directly behind his room.[101] He 'went and chucked a brick through the window'.[102] He then went inside and told his mum what he had done. [103] His mum said, 'Oh, what did you do that for?' and 'Oh, what are we going to do now Michael?' or something like that.[104] He went back to his room, the voices started again and he 'just fucking lost [his] shit'.[105] He 'like grabbed a hammer and did what I did'.[106]
[96] PB 903; ts 30.
[97] PB 904; ts 31.
[98] PB 905; ts 32.
[99] PB 905; ts 32.
[100] PB 905; ts 32.
[101] PB 905; ts 32.
[102] PB 905; ts 32.
[103] PB 905; ts 32.
[104] PB 905; ts 32.
[105] PB 905; ts 32.
[106] PB 906; ts 33.
He made threats 'about it to the voices and people last night'.[107] He said, 'If this fucking shit keeps going on I'm going to sort it out'.[108] He hit his bedroom wall with a hammer and then had a sleep.[109]
[107] PB 906; ts 33.
[108] PB 906; ts 33.
[109] PB 906; ts 33.
The hammer is a 'geo pick'.[110] He got it about 2 months ago[111] from a family friend called Morris McGregor.[112] He 'put a decent-sized hole in the wall'.[113] He 'just wanted the voices to stop'.[114]
[110] PB 909; ts 36.
[111] PB 910; ts 37.
[112] PB 909; ts 36.
[113] PB 910; ts 37.
[114] PB 910; ts 37.
When he woke up from his sleep 'the same sort of shit was happening…[t]he same voices'.[115] He could hear in his head his mum and dad and Jen and Tina.[116] He could hear other voices as well 'like younger people's voices'.[117] He grabbed the hammer and said to himself, 'Right, I'm going to do it now'.[118] He walked down the hallway towards the loungeroom.[119] His mum and dad were sitting in the loungeroom near the front door on separate couches.[120] As he walked down the hallway towards the loungeroom his dad got up off the couch and walked towards the door.[121] He hit his dad with the hammer. [122] He was aiming for the back of his dad's head.[123]
[115] PB 906; ts 33.
[116] PB 906; ts 33.
[117] PB 906; ts 33.
[118] PB 906; ts 33.
[119] PB 907; ts 34.
[120] PB 912; ts 39.
[121] PB 907; ts 34.
[122] PB 907; ts 34.
[123] PB 908; ts 35.
After he had hit his dad his mother 'leapt off the couch running in' and then he hit her on the back of the head.[124] She fell to the ground'.[125]
[124] PB 907 - 908; ts 34 - 35.
[125] PB 908; ts 35.
He hit his dad in the back of the head approximately 10 - 15 times.[126] He 'went back to [his] mum and back to [his] dad and back to [his] mum'.[127] He used the flat bit of the hammer, but when his mum was gasping for air he used the pointy bit to hit her head.[128] His mother was face down.[129]
[126] PB 907; ts 34
[127] PB 908; ts 35.
[128] PB 917 - 918; ts 44 - 45.
[129] PB 918; ts 45.
He was wearing a pair of jocks and a multicoloured t-shirt.[130]
[130] PB 918; ts 45.
He went and had a shower to clean all the mess off him.[131] When he came out of the shower he could hear something.[132] He was looking at his dad 'going what the fuck man…you should be dead'.[133] His father sat up and looked at him and said, 'Hey mate'.[134] He then 'did it again' to his dad and 'got more shit' on himself.[135] He then left it at that and went and rung triple zero. [136] He was naked when he hit his father after the shower.[137]
[131] PB 908; ts 35.
[132] PB 908; ts 35.
[133] PB 908; ts 35.
[134] PB 907-908; ts 34 - 35.
[135] PB 908; ts 35.
[136] PB 908; ts 35.
[137] PB 919; ts 46.
Earlier in the day he had verbally threatened his mum by saying to her, 'I'm going to fucking kill you'.[138] In his eyes if someone threatened him like that he would call the police.[139] He made the threat to his mum just to see if that would happen because he had previously rung the police.[140]
[138] PB 913; ts 40.
[139] PB 913 - 914; ts 40 - 41.
[140] PB 913 - 914; ts 40 - 41.
When he hit his mum and dad with the hammer his intention was to kill them.[141] He killed them because he thinks 'they're involved in all this' and to stop the voices in his head.[142]
[141] PB 926; ts 53.
[142] PB 926; ts 53.
Once he had finished with the hammer he 'just chucked it' and did not clean it.[143]
[143] PB 918, 921; ts 45, 48.
He called triple zero from the house landline phone while having a smoke.[144] He then proceeded to have another shower and put on 'fresh jocks and a pair of shorts'[145] because he 'didn't want you guys rocking up and being covered in blood'.[146]
[144] PB 921; ts 48.
[145] PB 919; ts 46.
[146] PB 909; ts 36.
He told the phone operator that he had 'just killed his parents'.[147] He remembers saying to the operator something like, 'I think everyone knows'.[148] He said this because he thinks everyone can hear what is going on and that 'there's a circle of people that are giving me shit…and then outside the circle there's everybody else'.[149] He thinks that 'the inside circle can't get it through their thick heads or can't believe that everyone can hear'.[150] His mum and dad are in the inside circle.[151]

The opinion expressed by him in his report that the history given by the accused is not consistent with the accused being acutely intoxicated with methylamphetamine at the time of the alleged offences is strengthened by the opinions expressed by Professor Joyce in his report.

Toxicology opinion evidence

As I have already indicated, the State called Professor David Joyce to give evidence.
Professor Joyce is a highly qualified chemist, pharmacologist and forensic toxicologist. His expertise was not challenged by the accused.
Professor Joyce's evidence was comprised of a report dated 5 March 2021 supplemented by oral evidence.[179]

Report

[179] Exhibit 26.

Professor Joyce prepared his report at the request of the Director of Public Prosecutions. In order to enable him to prepare his report Professor Joyce was provided with all necessary materials and information including a transcript of the interview conducted by the police with the accused, the reports of Dr Pascu and Dr Brett, and the ChemCentre report.
In his report Professor Joyce makes the following statements and expresses the following opinions.[180]
[180] Exhibit 26, pars 10 - 12, 17 - 31.
The accused's blood sample was collected about 12 hours after the alleged offences.
The negative screening procedures for common psychoactive substances, common synthetic cannabinoids, cannabinoids by immunoassay and other common basic drugs (referred to in the ChemCentre report) give very good reassurance that these intoxicants were not involved in the accused's conduct. Further, there is nothing in the provided history of the accused's drug use that gives rise to a suspicion that any of these substances has slipped through testing without being detected. It is therefore safe to focus on the accused's use of methylamphetamine.
Amphetamine is made during the metabolism of methylamphetamine in the body. This explains the presence of the low concentration of amphetamine specified in the ChemCentre report.
'Acute intoxication' refers to the state that comes on shortly after a drug is used. Violent actions are common during acute intoxication, mostly in people who have no background psychiatric illnesses. Violence carried out by an otherwise psychiatrically normal person during acute intoxication is a result of the state of intoxication that the person has deliberately induced in themselves.
There are three broad areas of evidence to consider in deciding whether or not a person is in a state of acute intoxication. First, are the appearances, behaviour and thought processes of the person consistent with a state of acute intoxication? Second, has a dose of methylamphetamine been taken recently (within the last 6 - 12 hours)? Third, is the blood concentration of methylamphetamine consistent with acute intoxication?
The accused certainly displayed paranoia and extreme violence that can be part of acute methylamphetamine intoxication. However, the accused's calm and cooperative behaviour when he first came into contact with the police is unsupportive of acute intoxication, even though the accused's actions and thought processes are. Further, the accused's paranoid thought processes were still obvious at the time of the police interview around five hours after the alleged offences and seemed to have persisted until he received psychiatric treatment. This suggests that the accused's paranoid thought processes should not be taken as acute and passing manifestations of intoxication. Overall the appearances, behaviour and thought processes of the accused seem much better explained by a chronic process than by acute methylamphetamine intoxication.
The phase of acute intoxication typically lasts from 6 - 12 hours. If the accused's accounts of his last methylamphetamine use before the alleged offences are correct, they place his final use of methylamphetamine as having occurred on the night of Friday 24 April 2020, that is, about 36 - 40 hours before the alleged offences. Acute methylamphetamine intoxication from a dose of the drug on the Friday night would have long passed by 4.00 pm on Sunday 26 April 2020. Further, the accused's account of sleeping through Saturday, if correct, would also imply that the state of acute intoxication had passed by 4.00 pm on Sunday.
Different amounts of methylamphetamine are needed to produce acute intoxication in different people. The amounts required to produce acute intoxication are largely determined by how habituated the person is to taking the drug.
The accused's blood concentration of 0.02 mg/L is low. This means the accused was beyond the phase of acute intoxication at the time that his blood concentration was measured, around 12 hours after the alleged offences. Methylamphetamine disappears from the body with a half-life of between about eight and 18 hours. This means that the concentration at the time of the alleged offences would have been 2-fold higher than the 0.02 mg/L present at 3.58 am. That is, the concentration at the time of the alleged offences would have been around 0.04 mg/L. This estimated concentration of methylamphetamine at the time of the alleged offences is not particularly suggestive of acute intoxication. It would seem sufficiently explained by a dose of around 200 mg (2 points) smoked 36 - 40 hours earlier.
Dr Joyce's experience of methylamphetamine concentrations in people who have committed violent crimes during intoxication is very limited. However, the methylamphetamine concentrations that he has seen in these people have been a lot higher than the concentration estimated in the accused's case.
Overall, the drug analysis data, the claimed time from the accused's last exposure to methylamphetamine, and the appearances, cognitive behaviour and thought processes of the accused, can be taken to indicate that the accused was not in a state of acute methylamphetamine intoxication when he attacked the deceased. The toxicological data therefore corroborates the opinions of Dr Brett and Dr Pascu on this point.
Deciding that methylamphetamine was absent is not the same as saying that methylamphetamine did not have a role in causing or facilitating the respondent's psychiatric state.
The position can be summarised as follows:
1.The measured low concentration of methylamphetamine found in the accused's blood sample, on its own, does not prove the absence of acute methylamphetamine intoxication, but it does weigh against it. Taken in concert with alternative explanations for the violence and the absence of obvious physical signs of acute methylamphetamine intoxication, the whole evidence becomes stronger against acute intoxication;
2.Although it is not possible to say precisely when the last dose of methylamphetamine was taken by the accused, the amount found in the accused's blood sample is at least consistent with a dose of around 100 mg - 200 mg being consumed on the night of Friday 24 April 2020;
3.Assuming the accused did not consume methylamphetamine after the alleged offences, the amount of methylamphetamine in his blood at the time he was arrested would have been approximately 0.04 mg/L; and
4The relationships between blood concentrations of methylamphetamine and its effects are indistinct because they are very dependent on the amount used, the time from use, the individual's tolerance for the drug (acquired from habitual exposure) and the pattern of use. However, a concentration of 0.04 mg/L if it had arisen from a dose taken more than about 12 hours earlier would very probably not leave evidence for methylamphetamine intoxication, other than a fatigued state that users term 'coming down'.

Oral evidence

In his evidence-in-chief Professor Joyce gave the following material supplementary evidence.[181]
[181] ts 127 - 141, 7 December 2021.
He worked on the basis that the amount of methylamphetamine consumed by the accused on the Friday night before the alleged offences was 2 points, or 200 mg, because this was the largest amount he saw mentioned in the accounts given by the accused to Dr Pascu and Dr Brett.
The analysis finding that there was 0.01 mg/L of amphetamine in the accused's blood is consistent with the analysis finding of 0.02 mg/L of methylamphetamine in his blood. The 0.01 mg/L finding is consistent with the amphetamine having been derived from 0.02 mg/L of methylamphetamine.
The term 'acute intoxication' means that it is a form of intoxication which comes on fairly quickly and would be expected to resolve fairly quickly. If a person smokes methylamphetamine or injects methylamphetamine then its effects commence very quickly, typically within minutes. The effects then gradually wear off as the body gets rid of the drug. In the case of methylamphetamine, in most instances the drug remains very effective for about six hours, sometimes a little longer. After this period the drug's effects starts to wane and this is termed 'resolution'.
Bigger doses of methylamphetamine work more strongly and for longer periods of time.
If a person is suffering from acute methylamphetamine intoxication what will be most obvious to a casual observer is that the person will be on their feet, more talkative, and more interactive with people. The person will exhibit confidence in themselves and in their opinions. If the person has consumed too much of the drug then there are other things that will tend to catch a medical practitioner's attention such as trembling, grinding of teeth and repeated scratching or picking of the skin. Other odd repetitive behaviours may also be exhibited.
Methylamphetamine also changes the way a person thinks. The drug makes a person's thought processes more suspicious and they find themselves being suspicious of perfectly innocent activities being undertaken by other people.
He did not see in any of the witness's descriptions of the accused anything that led him to believe that the accused was suffering from a state of acute intoxication with methylamphetamine.
The amount of methylamphetamine concentration found in the accused's blood approximately 12 hours after the alleged offences just looks too low to him for the accused to have been acutely intoxicated 12 hours earlier.
In his report he has taken 12 hours as the half-life of methylamphetamine. He acknowledges that he does not know exactly what the half-life of the methylamphetamine in the accused's system was. However, it is safe to take 12 hours as the half-life. As a result the level of methylamphetamine in the accused's blood at the time of the alleged offences would have been 'pretty close' to 0.04 mg/L.
In cross-examination Professor Joyce confirmed that a period of sleep between the accused's methylamphetamine use and the alleged offences would be inconsistent with the accused being acutely intoxicated with methylamphetamine.[182] He also confirmed that if the accused was behaving calmly and co-operatively at the time of his arrest shortly after the alleged offences this behaviour would be inconsistent with him being acutely intoxicated with methylamphetamine.[183]
[182] ts 141, 7 December 2021.
[183] ts 141, 7 December 2021.

Questions for determination - analysis and findings

The identity and causation elements of the charged offences

In light of the accused's formal admissions and the evidence adduced at trial I am satisfied beyond reasonable doubt that the accused:
1.caused the death of Lesley by repeatedly striking her to the head with a hammer; and
2.caused the death of Michael by repeatedly striking him to the head with a hammer.
In other words, I find that the State has proved the first two elements of each of the charged offences.

Is the accused precluded from relying on the defence of insanity under s 27(1) of the Code because he intentionally caused himself to become intoxicated at the time that he did the acts that caused the deaths of the deceased within the meaning of s 28(2) of the Code?

In the circumstances of the present case, the first question that must be addressed in determining if s 28(2) operates to preclude the accused from relying on s 27(1), is whether the accused has proved on the balance of probabilities that he was not intoxicated by methylamphetamine at the time that he killed the deceased. To put the question another way, has the accused proved that his mind was not subject to the overpowering action or effect of methylamphetamine at the time that he killed the deceased?
The accused submits that he has proved on the balance of probabilities that he was not intoxicated by methylamphetamine at the time that he killed the deceased.[184] The State makes the same submission.[185]
[184] Accused's Submissions, pars 31 - 44.
[185] ts 149, 8 December 2021.
In determining if the accused has proved that he was not intoxicated at the time that he killed the deceased it is necessary at the outset for me to make findings of fact in relation to both the amount of methylamphetamine consumed by the accused before he killed the deceased and the timing of his consumption.
When the accused was interviewed by the police he said that he had consumed two points (that is, 200 mg) of methylamphetamine 'about two days ago'. When the accused spoke to Dr Pascu he said that on the Friday evening before he killed the deceased he used approximately $200 worth (that is, two points) of methylamphetamine. When the accused spoke to Dr Brett he said that he had used $50 - $100 worth (that is, half a point to a point) of methylamphetamine on the Friday night before he killed the deceased. Finally, in his evidence the accused testified that in the time leading up to the day on which he killed the deceased he was probably using one or two points of methylamphetamine a week, and that on the Friday before he killed the deceased, while he was at his friend Jess's house and after he got home from Jess's house at about 5.00 pm, he consumed about one point of methylamphetamine. Thus viewed overall the accused has, from the time of being interviewed by the police in the hours after he had killed the deceased to the time of giving his evidence, in the main provided a substantially consistent account, specifically that on the afternoon and/or evening of Friday 24 April 2020 he consumed one or two points of methylamphetamine. At no stage has the accused reported that he used anything more than two points of methylamphetamine on the Friday before he killed the deceased. At no stage has the accused reported that he used methylamphetamine at any time between his consumption of the drug on the Friday and the time at which he killed the deceased.
I have already expressed my conclusion that the accused gave honest and generally reliable evidence. It necessarily follows that I do not think that the accused, in giving his evidence that he consumed one point of methylamphetamine on the Friday before he killed the deceased, was deliberately attempting to downplay the amount of methylamphetamine that he had consumed, that is, was deliberately and dishonestly attempting to say that he had consumed only one point of methylamphetamine rather than two points. To the contrary, I am satisfied that in giving his evidence, which was consistent with what he had told Dr Brett, the accused was attempting to give honest and reliable evidence.
Ultimately, I am satisfied on all the evidence and accordingly find that the last occasion on which the accused used methylamphetamine prior to killing the deceased was during the late afternoon and/or evening of Friday 24 April 2020, that the amount of methylamphetamine that he consumed on that occasion was approximately 200 mg and that he did not consume any methylamphetamine between his consumption of the approximate 200 mg dose on the Friday and the time at which he killed the deceased. I am so satisfied for the following reasons considered in conjunction with each other.
First, the accused was on my assessment an honest and generally reliable witness.
Second, the accused has consistently maintained since the time of his arrest that he consumed about one to two points of methylamphetamine.
Third, when the accused was interviewed by the police he said that he had consumed two points of methylamphetamine on the Friday before he killed the deceased. The accused was interviewed by the police only two days after the Friday on which he had consumed the methylamphetamine. The accused's recollection at that point in time of the amount of methylamphetamine that he consumed on the Friday is likely to be more accurate than the recollection that he currently has, some 20 months after the event.
Fourth, the level of methylamphetamine that was found in the accused's blood sample was, for the reasons explained by Professor Joyce in his uncontradicted evidence, consistent with the accused having consumed a dose of around 100 mg - 200 mg of methylamphetamine on the Friday night.
Having made my findings as to the amount of methylamphetamine that the accused consumed prior to killing the deceased and the timing of his consumption of the methylamphetamine, it is next necessary for me to make a finding as to the level of methylamphetamine that the accused had in his blood at the time that he killed the deceased. The relevant evidence on this point was given by Professor Joyce. Professor Joyce's evidence was that if the accused consumed approximately 200 mg of methylamphetamine on the night of Friday 24 April 2020 the level of methylamphetamine in his blood at the time that he killed the deceased would have been approximately 0.04 mg/L. Professor Joyce's reasoning process for arriving at this conclusion, which related to the half‑life of methylamphetamine, was clearly expressed and readily understandable. His evidence was not challenged. I accept Professor Joyce's evidence in this regard. I therefore find that the amount of methylamphetamine in the accused's blood at the time that he killed the deceased was 0.04 mg/L or very close thereto.
The question which remains is whether the accused has, given my finding that he had 0.04 mg/L of methylamphetamine in his blood at the time that he killed the deceased, proved on the balance of probabilities that he was not (had not become) intoxicated by methylamphetamine at the time that he killed the deceased. I am satisfied on the balance of probabilities that the accused was not intoxicated by methylamphetamine at the time that he killed the deceased. I am so satisfied for the following reasons considered in conjunction with each other.
First, on the evidence of Professor Joyce, which was not challenged and which I accept, the phase of acute intoxication following the consumption of methylamphetamine typically lasts for 6 - 12 hours. The accused last consumed methylamphetamine between approximately 40 - 48 hours before killing the deceased. Therefore, the phase of acute intoxication with methylamphetamine would have long passed by the time the accused killed the deceased.
Second, the level of methylamphetamine in the accused's blood at the time that he killed the deceased is, on the unchallenged evidence of Professor Joyce which I accept, not particularly suggestive of acute intoxication.
Third, on the accused's evidence, which was broadly consistent with his prior accounts given to the police, Dr Pascu and Dr Brett, and which I accept, he slept for lengthy periods of time from the early morning hours of Saturday 25 April 2020 to sometime later that morning and again from the early morning hours of Sunday 26 April 2020 to sometime during the Sunday afternoon.
Fourth, the unchallenged evidence of Professor Joyce, which I accept, was that the fact that the accused had slept for the lengthy periods described by the accused in his evidence is inconsistent with the accused being acutely intoxicated with methylamphetamine at the time of killing the deceased.
Fifth, and as is established by the unchallenged evidence of Dr Pascu, Dr Brett and Professor Joyce, the accused's relatively calm and cooperative conduct at the time of his arrest and during his interview with the police is inconsistent with him being intoxicated with methylamphetamine at the time that he killed the deceased. The accused did not exhibit any of the behaviours that are usually exhibited by a person intoxicated with methylamphetamine such as elevated mood, increased physical activity, increased confidence, irritability and anger.

In summary, for the reasons I have given I find that the accused was not intoxicated by methylamphetamine (or for that matter by any other substance) at the time that he did the acts that caused the deaths of the deceased. It follows that the accused is not precluded by s 28(2) from relying on the defence of insanity under s 27(1).
In light of my finding expressed in the previous paragraph the question whether the accused was intentionally intoxicated does not arise for my consideration. However, I note for the sake of completeness that if I had found that the accused had failed to prove that he was not intoxicated at the time that he killed the deceased I would also have found, consistently with the previously referred to concession made by him, that he had failed to prove that he had not intentionally caused himself to become intoxicated. I would have made this finding for two principal reasons. First, because the accused voluntarily consumed the 200 mg of methylamphetamine on Friday 24 April 2020. Second, because the accused was a long term user of methylamphetamine and therefore can be taken to have known what the likely effects on him of consuming the drug would be.

Was the accused mentally impaired within the meaning of s 27(1) at the time that he did the acts that caused the deaths of the deceased?

In relation to the issue of whether the accused was mentally impaired at the time that he did the acts that caused the deaths of the deceased, the expert opinion evidence is all one way. Dr Pascu and Dr Brett are both of the opinion that at the time of killing the deceased the accused was suffering from paranoid schizophrenia which caused him to experience psychotic phenomena comprised of auditory and visual hallucinations, delusions of reference, thought broadcasting and delusional beliefs to the effect that his parents were responsible for, or involved in, the phenomena which he was experiencing and that they posed a threat to himself and to others. Dr Pascu and Dr Brett base their opinions, in essence, on the following matters:
1.The accused's history of psychotic symptoms;
2.The accused's account (given in his interview with the police, in his interviews with them and in his evidence) of the psychotic symptoms that he was experiencing during the months and days leading up to his killing of the deceased;
3.The accused's account (given in his interview with the police, in his interviews with them and in his evidence) of the incident during which he killed the deceased;
4.The accused's conduct during his interaction with the police on 13 April 2020;
5.The accused's conduct, demeanour and appearance very shortly after he had killed the deceased (specifically his conduct and demeanour in making the triple zero call and his conduct, demeanour and appearance at the time of his arrest);
6.The accused's presentation and affect during his interview with the police;
7.The course of the accused's treatment and improvement during his admission to the Frankland Centre;
8.The amount of methylamphetamine that would have been in the accused's blood at the time that he killed the deceased; and
9.Professor Joyce's opinion as to the likelihood of the accused having been intoxicated with methylamphetamine at the time that he killed the deceased.
The accused submits that he has proved on the balance of probabilities that he was mentally impaired at the time that he killed the deceased.[186] The State makes the same submission.[187]
[186] Accused's Submissions, pars 45 - 58.
[187] ts 147 and 148 - 151, 8 December 2021.
Schizophrenia is clearly a mental illness as defined in s 1(1) of the Code and consequently is also a mental impairment for the purposes of s 27(1).
I am, of course, not bound to accept and act upon the expert opinion evidence of Dr Pascu and Dr Brett. I may reject their evidence if there is some other evidence, fact or circumstance that contradicts their evidence or warrants the conclusion that their evidence is unreliable. However, I am not entitled to disregard their evidence capriciously. If there is no evidence, fact or circumstance which, in my opinion, throws doubt on their evidence I must accept it.
I have found the accused's accounts of his psychotic symptoms and of the incident in which he killed the deceased given by him to the police, to Dr Pascu and Dr Brett, and in his evidence to have been honest and generally reliable accounts. Further, the other matters upon which Dr Pascu and Dr Brett place primary reliance in arriving at their opinions are established by the evidence. In short, the matters (facts and circumstances) upon which Dr Pascu and Dr Brett base their opinions are established by the evidence.
Dr Pascu and Dr Brett both explained their reasons for arriving at the opinions they expressed. Their reasoning processes were fully exposed. I was not able to detect any flaw in the reasoning of either of them.
There is no evidence, fact or circumstance that contradicts the opinion evidence of Dr Pascu and Dr Brett as to the accused's mental impairment. Nor is there any evidence, fact or circumstance that warrants the conclusion that their opinions as to the accused's mental impairment are unreliable. Neither party suggest that I should not accept this aspect of their evidence.
For the reasons I have given, and taking account of my finding that the accused was not intoxicated at the time that he killed the deceased, I accept the evidence of Dr Pascu and Dr Brett that the accused was, at the time of killing the deceased, suffering from paranoid schizophrenia. I am therefore satisfied on the balance of probabilities that the accused was, at the time of killing the deceased, in a state of mental impairment within the meaning of s 27(1) of the Code.

Did the accused's mental impairment deprive him of the capacity to understand what he was doing, or the capacity to control his actions or the capacity to know that he ought not to do the acts that caused the deaths of the deceased?

The accused submits, in reliance on the evidence of Dr Pascu and Dr Brett, that he has proved on the balance of probabilities that at the time of killing the deceased he was, by reason of his mental impairment, deprived of the capacity to know that he ought not to do the acts that caused their deaths.[188] The accused further submits, in reliance on the evidence of Dr Brett, that he has proved on the balance of probabilities that at the time of killing the deceased he was, by reason of his mental impairment, deprived of the capacity to control his actions.[189] The accused does not submit that he has proved on the balance of probabilities that at the time of killing the deceased he was, by reason of his mental impairment, deprived of the capacity to understand what he was doing.
[188] Accused's Submissions, pars 59 - 63.
[189] Accused's Submissions, pars 59 - 63.
Similarly to the accused, the State submits that I should find that the accused has proved on the balance of probabilities that at the time of killing the deceased he was, by reason of his mental impairment, deprived of the capacity to know that he ought not to do the acts that caused their deaths and of the capacity to control his actions.[190]
[190] ts 152 - 156, 8 December 2021.
I am not satisfied that the accused at the time of killing the deceased was, by reason of his mental impairment comprised of his paranoid schizophrenia, deprived of the capacity to understand what he was doing. He knew what he was doing, namely attacking the deceased with a hammer. He admits that his intention in engaging in this conduct was to kill the deceased.
I turn to the question whether the accused was, by reason of his mental impairment, deprived of the capacity to know that he ought not to do the acts that caused the deaths of the deceased.
In essence, the accused has consistently maintained that he killed his parents because he wanted to stop the voices that he was hearing, because he believed that the deceased were responsible for, or in some way involved in, the phenomena that he was experiencing and because he believed that his parents posed a risk to himself and others. As the accused stated in his evidence, he thought that the deceased 'were the ones that were trying to get me and all this sort of stuff'.
As is apparent from what I have already said, I am satisfied that the accused was, at the time of killing the deceased, suffering from the auditory hallucinations and delusional beliefs which he described in his evidence and which he has repeatedly described since the time of his arrest. I am, as is also apparent from what I have already said, satisfied that the accused's auditory hallucinations and delusional beliefs were the product of his mental impairment, his paranoid schizophrenia.
The evidence of both Dr Pascu and Dr Brett was, in substance, that in their opinion the accused's reasons for killing the deceased demonstrate that he was deprived of the capacity to know that he ought not to do the acts that caused the deaths of the deceased. In their opinions the accused killed the deceased because he believed that it was the right thing to do; because he believed that killing the deceased would stop the voices and remove the risk posed by the deceased to himself and others.
There is no evidence, fact or circumstance that contradicts the opinion evidence of Dr Pascu or the opinion evidence of Dr Brett in relation to the issue of whether the accused was by reason of his mental impairment deprived of the capacity to know that he ought not to do the acts that caused the deaths of the deceased. Nor is there any evidence, fact or circumstance that casts doubt on the process of reasoning that Dr Pascu and Dr Brett used to arrive at their opinions in relation to this issue or which otherwise warrants the conclusion that their opinions are unreliable.
Neither party suggests that I should not accept the evidence of Dr Pascu and Dr Brett in relation to the issue of whether the accused was by reason of his mental impairment deprived of the capacity to know that he ought not to do the acts that caused the deaths of the deceased.
In the circumstances to which I have referred I accept the opinion evidence of Dr Pascu and Dr Brett in relation to the issue of whether the accused was by reason of his mental impairment deprived of the capacity to know that he ought not to do the acts that caused the deaths of the deceased.
In summary, on the basis of the accused's evidence and the opinion evidence of Dr Pascu and Dr Brett, I am satisfied on the balance of probabilities that at the time that the accused killed the deceased he, as a direct result of the symptoms caused by his paranoid schizophrenia, believed that killing the deceased was the right thing to do because this would result in the stopping of his auditory hallucinations and the removal of the risk that he believed the deceased posed to himself and others. It follows that I am also satisfied on the balance of probabilities that the accused was deprived of the capacity to understand, appreciate or comprehend that his conduct in killing the deceased was wrong according to ordinary standards. In other words, I am satisfied on the balance of probabilities that at the time of killing the deceased the accused was in such a state of mental impairment as to be deprived of the capacity to know that he ought not to do the acts that caused the deaths of the deceased within the meaning of s 27(1).
The remaining question is whether the accused was, by reason of his mental impairment, deprived of the capacity to control his actions.
It is, in my opinion, clear from the accused's accounts given to the police, Dr Pascu and Dr Brett, and from the accused's evidence, that he was not, due to his paranoid schizophrenia and the nature and severity of the psychotic symptoms that he was experiencing as a result thereof, able to think rationally, or at all, of other options for dealing with his hallucinations and delusional beliefs at the time that he killed the deceased. In his interview with the police he said that he had tried his best to 'nut it out' but that he was at his 'wits end'. During his interviews with Dr Brett he stated that at the time of killing the deceased he could see no other solutions to his problems and that he did not feel in control of his actions. In his evidence he said that it was 'like [he] was on autopilot' and that he just 'went and did it'.
Ultimately, I am satisfied on the balance of probabilities that at the time that the accused killed the deceased he, as a direct result of the symptoms caused by his paranoid schizophrenia, believed that the only way that he could stop his auditory hallucinations and remove the risk that he believed the deceased posed to himself and others, was to kill the deceased. I am satisfied, consistently with the opinion evidence given by Dr Brett, that the auditory hallucinations and delusional beliefs that the accused was experiencing as a result of his paranoid schizophrenia were of such a nature and severity as to deprive the accused of the capacity to refrain from doing the acts that caused the deaths of the deceased, or in other words, the capacity to exercise the power of choice to act. It follows that I am also satisfied on the balance of probabilities that at the time of killing the deceased the accused was in such a state of mental impairment as to be deprived of the capacity to control his actions within the meaning of s 27(1).
There is one further issue I need to deal with in this context.
As I have already indicated, in his oral evidence Dr Brett, in the course of explaining his reasons for holding the opinion that the accused was, at the time of killing the deceased, deprived of the capacity to control his actions, stated that the accused believed he was being controlled by command auditory hallucinations and experiences that he was having at the time. Further, and as I have also already indicated, a little later in his evidence Dr Brett, in explaining his reasons for holding the opinion that the accused was, at the time of killing the deceased, deprived of the capacity to know that he ought not to do the acts that caused the deaths of the deceased, stated that the accused believed he had command auditory hallucinations telling him to kill himself with the result that he thought he was in danger.
When the accused was interviewed by the police he reported that sometimes the voices told him to kill himself. Further, when the accused was interviewed by Dr Pascu he reported that about one or two weeks before he killed the deceased the voices were worse in putting him down and started telling him to do things but not to hurt himself or others. There is, however, no evidence before me to the effect that the accused ever reported to anyone that the voices at any point in time commanded him to hurt or kill the deceased. Certainly Dr Brett did not give evidence that the accused reported to him that the voices had told him to hurt or kill the deceased.
In light of the evidence I state, to avoid any doubt on the issue, that I have, in arriving at my conclusion that the accused was deprived of the capacity to control his actions, interpreted Dr Brett's first above identified reference to the accused's command auditory hallucinations as being a reference to the accused's reported hallucinations that he was being commanded to do things and to kill himself, and not as a reference to a hallucination that he was being commanded to hurt or kill the deceased. I think that this is the only interpretation of Dr Brett's evidence that is reasonably open given not only that Dr Brett can properly be presumed to have known, at the time of giving his evidence, that the accused had never reported being commanded by the voices to hurt or kill the deceased but also his reference, in the context of dealing with the issue of the accused's capacity to know that he ought not to do the acts, to the accused's command auditory hallucinations telling him to kill himself. Further, and in any event, even if there was no evidence before me that the accused had experienced command auditory hallucinations of the type reported by him, I would still, for the reasons I have stated, have concluded that the accused was deprived of the capacity to control his actions. As I have said, my finding is that the accused was deprived of the capacity to control his actions because he believed that the only way that he could stop his auditory hallucinations (of whatever type) and remove the risk that he believed the deceased posed to himself and others, was to kill the deceased.

Conclusion

For the reasons I have given, I find the accused:
1.not guilty of the charge of murdering Lesley Ann Taylor on account of unsoundness of mind and enter a judgment of acquittal on account of unsoundness of mind; and
2.not guilty of the charge of murdering Michael Wayne Taylor on account of unsoundness of mind and enter a judgment of acquittal on account of unsoundness of mind.[191]
[191] CPA, s 146, s 147(2).
As required by s 149(1) of the CPA and s 21 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) I make a custody order in respect of the accused. The effect of the custody order is that the accused will be detained until released by an order of the Governor.[192]
[192] Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 24(1).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
22 DECEMBER 2021