The State of Western Australia v WILLIAMS - [2013] WASC 279

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- WILLIAMS [2013] WASC 279

CORAM: EM HEENAN J

HEARD: 29 JULY 2013

DELIVERED : 30 JULY 2013

FILE NO/S: INS 21 of 2013

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Plaintiff
AND
NATHAN DANIEL WILLIAMS
Defence

Catchwords:

Criminal law and procedure - Trial by Judge alone - Manslaughter and two counts of unlawful assault thereby doing bodily harm - Plea of unsoundness of mind - Criminal Code, s 26 and s 27 - Special plea under s 126(1)(d) Criminal Procedure Act - Procedure - Onus and burden of proof

Legislation:

Criminal Code, s 26, s 27, s 221, s 222, s 270, s 277, s 279, s 280, s 317
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 21
Criminal Procedure Act 2004 (WA), s 93, s 118, s 119, s 120, s 126
Evidence Act 1906 (WA), s 32
Mental Health Act 1996 (WA)

Result:

Not guilty by reason of unsoundness of mind in respect of each of the three charges
Acquitted
Custody orders made

Category: B

Representation:

Counsel:

Plaintiff: Ms L R Tovey
Defence: Mr P G Giudice

Solicitors:

Plaintiff: Director of Public Prosecutions (WA)
Defence: George Giudice Law Chambers

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

Fleming v The Queen (1998) 197 CLR 250
The State of Western Australia v Hone [2007] WASC 64
The State of Western Australia v Mack [No 2] [2012] WASC 445

EM HEENAN J: By indictment dated 3 July 2013 the State of Western Australia alleges that Nathan Daniel Williams has committed three crimes, they being two counts of unlawful assault thereby doing bodily harm to the victims, accompanied by the aggravated circumstance that, in each case, the victim was of or over the age of 60 years, and a third count of manslaughter. This indictment replaces an earlier indictment dated 28 March 2013 which was discontinued by the State. By the new indictment the State alleges that:
(1)On 26 October 2011, at Greenough, Nathan Daniel Williams unlawfully assaulted Kevin Joseph Bell and thereby did him bodily harm
And that Kevin Joseph Bell was of or over the age of 60 years.
(2)On the same date and at the same place as in count (1) Nathan Daniel Williams unlawfully assaulted Ian Clarence Cunneen and thereby did him bodily harm
And that Ian Clarence Cunneen was of or over the age of 60 years.
(3)On 21 April 2012 at Perth Nathan Daniel Williams unlawfully killed Richard Alan Haynes.
By order made on 2 April 2013 McKechnie J directed that the prosecution's application for trial by Judge alone should be granted ‑ Criminal Procedure Act 2004 s 118(1). This application was made by the State on the grounds that the only issue to be determined by the court was whether or not the accused was relieved of criminal responsibility by reason of unsoundness of mind ‑ s 27(1) of the Criminal Code and because the prosecution conceded that he was of unsound mind at the time of the commission of the three alleged offences. Counsel for the accused consented to the application before McKechnie J.
When arraigned on these charges on 29 July Williams formally entered a plea that he was 'not guilty … on account of unsoundness of mind' which, in form, is a special plea under s 126(1)(d) of the Criminal Procedure Act 2004. He did not attempt to enter a general plea of not guilty to any of the charges under s 126(1)(e) although he might have done had he so chosen ‑ s 126(4).
In view of the special pleas entered, it is necessary to have regard to s 93(1) of the CPA which, so far as is applicable, provides:
(1)If an accused pleads not guilty to a charge on account of unsoundness of mind and the Judge is satisfied:
(a)that the only fact in issue between the accused and the State is whether, under the Criminal Code s 27 the accused is not criminally responsible for an act or omission on account of unsoundness of mind; and
(b)the prosecutor consents, and the accused does not object, to the Judge doing so; and
(c)that it is in the interests of justice to do so,
the Judge ‑
(d)may decide the issue referred to in par (a) on any evidence and in any manner the Judge thinks just; and
(e)for that purpose, may ascertain any fact by the verdict of a jury or otherwise; and
(f)may find the accused not guilty of the charge on account of unsoundness of mind; and
(g)if such a finding is made and the jury has been sworn to give a verdict on a charge, must discharge the jury from giving its verdict on the charge.
(2)Subsection (1) is in addition to does not affect the operation of s 146.
Nevertheless, the prosecutor neither applied nor consented, nor for that matter did the accused object, to the procedure contemplated by s 93(1)(d) to (g) inclusive being followed.
In the circumstances, therefore, the trial proceeded as if a general plea of not guilty had been entered. Both the prosecution and the accused consented to all of the evidence relating to the facts of the alleged offences being tendered through written materials, by the acceptance of the statement of agreed facts and with a series of formal admissions by the accused which are recorded in detail below. Oral evidence was called and some additional written evidence was adduced, again by consent of the parties, dealing with the issue of unsoundness of mind by reason of insanity.
The prosecution did not submit that I might decide that issue on any evidence or in any manner which I thought just within s 93(1)(d) of the CPA and I have not proceeded on that basis ‑ see generally The State of Western Australia v Hone [2007] WASC 64 [2] ‑ [8] (Murray J).

Trial by Judge alone

On a trial by Judge alone the Judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury ‑ CPA s 119(1). Further, if any written or other law (a) requires information or a warning or instruction to be given to the jury in certain circumstances; or (b) prohibits a warning from being given to a jury in certain circumstances, the Judge in a trial by a Judge alone must take the requirement or prohibition into account if those circumstances arise in the course of the trial. When giving judgment after a trial by Judge alone the Judge must include the principles of law that he or she has applied and the findings of fact on which he or she has relied ‑ CPA s 120(2). In Fleming v The Queen (1998) 197 CLR 250, dealing with a procedure for trial by Judge alone in NSW comparable to s 119 of the CPA in this State, it was held that there had been an error of law amounting to a substantial miscarriage of justice in that case by the trial judge failing to demonstrate clearly that the warning required by law for corroboration had been taken into account. The High Court decided that not only must the principles of law applied by the Judge be stated but that there must be exposed the reasoning process linking the principles of law and the findings of fact and justifying the latter and, ultimately, the verdict.
In the first place, the onus is upon the prosecution to prove every element of the offence charged against the accused and to do so beyond reasonable doubt before he may be convicted of that charge. This applies to each of the three charges contained in this indictment. Not only does this require the prosecution to prove that the accused carried out the actions which were the basis of one or other of the offences charged but, that he did so by willed actions in the sense that his actions were voluntary actions not performed under the influence of any sane automatism. In the present case, it is necessary to note that where the defence of insanity under s 27 of the Code has been expressly relied upon by the accused, that the onus of establishing insanity within the meaning of that section rests upon the accused by reason of s 26 of the Code but that the burden of proof of insanity is upon the balance of probabilities and not the higher burden of proof beyond reasonable doubt required of the prosecution in relation to all other issues.

Elements of the charged offences

The first two counts in the indictment against Mr Williams allege that he committed the crime of unlawful assault, thereby doing bodily harm, of a person of or over the age of 60 years. This is the crime established by s 317 of the Criminal Code which provides that:
(i)Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime.
The offence is more serious if it is committed in circumstances of aggravation which, by s 221(1), are defined as including:
(d)the circumstance where the victim is of or over the age of 60 years.
'Bodily harm' is defined by s 221(1)(i) as meaning 'any bodily injury which interferes with health and comfort' and an 'assault' is defined by s 222 as including the following:
A person who strikes, touches or moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent … is said to assault that other person and the act is called an assault.
An assault can also consist of other conduct involving the threats of the application of force in a variety of different circumstances but it is unnecessary to consider those other possibilities in the present case.
Consequently, for the prosecution to establish that Mr Williams committed one or both of the crimes alleged in counts 1 and 2 of the indictment it is necessary for the DPP to establish beyond reasonable doubt that:
(a)Mr Williams unlawfully assaulted Kevin Joseph Bell or Ian Clarence Cunneen, as the case may be;
(b)by committing that assault Williams did Bell or Cunneen, as the case may be, bodily harm;
(c)that Bell or Cunneen, as the case may be, was at the time of or over the age of 60 years; and
(d)in the circumstances of this case to refute any evidence intended to show that at the time Williams was of unsound mind (although if Williams fails to prove on the balance of probability that he was of unsound mind at the time, he will fail to establish the defence of insanity by failing to refute the presumption of sanity).

Manslaughter

The third count in the indictment against Williams is the crime of manslaughter. Manslaughter is defined by s 280 of the Criminal Code as being:
If a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter …
Manslaughter involves the unlawful killing of another person. Any killing of a person is unlawful unless authorised, justified or excused by law. There is no assertion nor any reason to infer that the killing of Mr Haynes was authorised or justified by law although, if the defence of insanity is made out, that would amount to a circumstance which excused Mr Williams of criminal responsibility for that death. I have already mentioned that killing involves a person causing the death of another directly or indirectly by any means whatever. Any unlawful killing may constitute either the crime of murder, according to the circumstances of the case, or manslaughter ‑ Criminal Code s 277. Murder is an unlawful killing where ‑ Criminal Code s 279:
(a)the person intends to cause the death of the person killed or another person; or
(b)the person intends to cause bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or
(c)the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life.
It is not suggested by the prosecution nor is there any evidence to show that Mr Williams intended to cause the death of Mr Haynes or any other person, or that he intended to cause bodily injury of such a nature as to endanger or be likely to endanger the life of Mr Haynes or another person, or that Mr Haynes' death was caused by means of the act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life.
Consequently, the crime of manslaughter as alleged in this case asserts that there was an unlawful killing by Mr Williams of Mr Haynes – that is, that the death was not an accident within the meaning of s 23B; that it was not an unwilled act within the meaning of s 23A; and that there is no other defence or circumstance which would authorise, justify or excuse the killing. None was suggested in this present case nor, apart from the issue of insanity, was there any basis for inferring one.
I further note that the verdict in this case is to be reached by reference only to the evidence admitted at the trial and not by reference to any other fact or circumstance.
Immediately after his pleas Mr Williams, by his counsel, made a series of formal admissions at this trial under s 32 of the Evidence Act 1906. These were admissions of facts alleged or sought to be proved against him which, having been made, became sufficient proof of that fact or those facts without other evidence.
The admissions are:
(a)that on 26 October 2011 at Greenough he, Nathan Daniel Williams, assaulted Kevin Joseph Bell and caused him bodily harm, and that Mr Bell was over 60 years of age;
(b)that on 26 October 2011 at Greenough, Nathan Daniel Williams assaulted Ian Clarence Cunneen and caused him bodily harm, and that Mr Cunneen was of or over the age of 60 years;
(c)that on 26 October 2011 at Greenough, Nathan Daniel Williams assaulted Richard Allen Haynes and caused him grievous bodily harm;
(d)that Richard Allen Haynes died on 21 April 2012 at Perth;
(e)that the injuries caused by Nathan Daniel Williams to Richard Allen Haynes on 26 October 2011 substantially or significantly contributed to the death of Richard Allen Haynes;
(f)that the assaults were unlawful acts in all respects, except that the accused was insane at the time.
The effect of these admissions, as expressly acknowledged by counsel for the accused, is to admit all the facts and circumstances constituting the ingredients of each of the three charges against Mr Williams save for the issue of whether or not he was criminally responsible for those actions by reason of his defence of unsoundness of mind, the onus of proof of which rests upon him.

Agreed statement of material facts

The agreed statement of material facts, already mentioned, became exhibit 1 at the trial and itself constitutes a series of further admissions. It is necessary to set this out in full. The statement is as follows:
The accused (DOB 18.9.1982) is a 30 year old man who, on 26 October 2011 was 29 years old and living at the Double Beach Caravan Park in Cape Burney, Greenough ('Caravan Park').
The three victims are the deceased, Richard Alan Haynes (DOB 9.10.1951), Kevin Joseph Bell (DOB 1.1944 ) and Ian Clarence Cunneen (DOB 2.1.1944), who were residents of the Caravan Park on 26 October 2011.
The facts are that at approximately 3.15 pm on 26 October 2011 the accused left his unit at lot 132 of the Caravan Park and walked towards the caravan park opposite at lot 112. That at that time Mr Haynes, Mr Bell and Mr Cunneen were sitting inside the annex to the caravan at lot 112. The accused stood in the middle of the road and was highly agitated. It was raining lightly at the time. The accused then walked to the door of the annex and stood there. Mr Haynes stood up, enquired if the accused was all right and gave the accused a hug. Mr Haynes then returned to his seat. The accused then raised his voice and became aggressive telling Mr Haynes to stand up. Mr Haynes then stood up and the accused pushed him, without provocation, back down into his chair.
The accused then repeatedly punched Mr Haynes to the head with a clenched fist which caused Mr Haynes to fall to the ground. The accused then began kicking Mr Haynes in the head area and stomped on Mr Haynes' head with his foot at least three times.
Mr Bell then stood up, and said to the accused /cut it out; stop it; what's going on?' The accused then punched Mr Bell in the face at least 2 or 3 times. This caused Mr Bell to fall backwards into a chair and into a nearby table. Mr Bell then went away from the annex to get help.
Mr Cunneen then said to the accused 'slow down', 'what are you doing'. The accused then punched Mr Cunneen in the chest with a clenched fist and such force that Mr Cunneen fell through the wall of the annex. As he did so, Mr Cunneen's arm went through the sheeting and he received a cut to his right forearm. Mr Cunneen then left and called the police.
As Mr Bell headed towards the caravan office to get help he was caught by the accused, who came up behind him and put him in a strangle hold. The accused then turned Mr Bell around so that they were facing and punched Mr Bell in the face with a clenched fist causing Mr Bell to fall to the ground. The accused then kicked Mr Bell in the head area, and then stomped on his head, at least three times.
One of the other residents of the caravan park then intervened. The accused then followed that resident back to his cabin, shouting to get back to his cabin. The accused then headed towards the amenities block, and was yelling whilst he did so. At the amenities block the accused stood with his arms at his side staring blankly into nowhere.
A short time later, a lady within the Caravan Park spoke with the accused. He told her that 'I do what I do again for women and children'. She then encouraged him to go inside his caravan and as she did so she observed he had a 3 – 4 cm cut on the inside of his left forearm. When she enquired about the cut, the accused said that he did it himself and that 'I was itchy. I had to get it out.'
The police then arrived and arrested the accused. A search of the accused's caravan was conducted and police seized several packets of medication, including packets or seroquel and sodium valproate.
The accused was interviewed by the police on 27 October 2011.
After his arrest, the accused was initially placed under a hospital order and has been bailed to remain as a patient in the care of the Inpatient Forensic Services of the State Forensic Mental Health Services, Graylands Hospital since January 2012.
Mr Haynes suffered catastrophic injuries as a result of the actions of the accused. He was taken to the Geraldton Regional Hospital, intubated and sedated for transfer to Royal Perth Hospital for further management. Mr Haynes had facial abrasions and lacerations and an open fracture of the right front area of his head. A CT scan showed scattered subarachnoid haemorrhage and petechial haemorrhages. There was also a small parafalcine subdural haematoma as well as a right frontal sinus fracture and a right orbital floor injury. Mr Haynes had a long protracted stay in ICU and was returned to the Ward following tracheostomy. He remained in hospital for a lengthy period of time for recovery after which he made minimal independent improvement and he was discharged to a nursing home, about 9 January 2012. At the time he was in a vegetative state.
On 18 April 2012 Mr Haynes was returned to Royal Perth Hospital as he was suffering from pneumonia. He died on 21 April 2012. A post mortem report revealed the cause of death to be pneumonia and pulmonary thromboembolism complicating a longstanding head injury. Gross neuropathology showed features of an old traumatic brain injury and microscopy also showed features consistent with a previous head injury.
It is accepted by the accused that the injuries caused to Mr Haynes by him on 26 October 2011 substantially or significantly contributed to the death of Mr Haynes on 21 April 2012. As a result, it is accepted by the accused that he unlawfully killed Mr Haynes.
Mr Bell was also admitted to the Geraldton Regional Hospital on 26 October 2011 and transferred to Royal Perth Hospital. A CT scan showed that Mr Bell suffered an acute left sided subdural haematoma of maximum diameter 14 mm. Mr Bell was discharged from hospital on 4 November 2011. He has continued to suffer from ongoing dizzy spells, headaches and memory loss.
It is accepted by the accused that the injuries caused to Mr Bell by him on 26 October 2011 amounted to a bodily harm. It is also accepted by the accused that Mr Bell was of or over the age of 60 years at the time.
Mr Cunneen attended at the Geraldton Regional Hospital on 26 October 2011 but did not remain for treatment. He suffered tenderness in his chest and a small cut on his right arm. He subsequently attended on his own practitioner due to ongoing pain in his chest due to his chest injury.
It is accepted by the accused that the injuries caused to Mr Cunneen by him on 26 October 2011 amounted to a bodily harm. It is also accepted by the accused that Mr Cunneen was of or over the age of 60 years at the time.

Further evidence

By reason of the admissions made by the accused and the statement of agreed facts, most of the evidence for the prosecution was adduced by the tender, without objection, of witness statements forming the prosecution brief and associated exhibits. As observed by McKechnie J in The State of Western Australia v Mack [No 2] [2012] WASC 445 [8] ‑ [9] when evidence is adduced in this way I am entitled to accept and rely on the contents of the witness statements as truthful and accurate accounts of what is contained within them. Indeed, none of the evidence contained in these statements was challenged in any way by the accused. Nevertheless, it remains the responsibility of the judge to determine whether, on all the evidence, the facts alleged by the prosecution to constitute the commission of each of the offences have been established beyond reasonable doubt.
I am, however, satisfied beyond reasonable doubt that Mr Williams performed all the physical acts alleged against him by these three charges in the indictment, being the ingredients of each of the three offences which I have already specified. I am also satisfied beyond reasonable doubt that each of the three assaults was unlawful and that both Mr Bell and Mr Cunneen were at the time of or over the age of 60 years. I am also satisfied beyond reasonable doubt that the accused killed Richard Allen Haynes in circumstances which would amount, at law, to manslaughter unless he establishes the defence of unsoundness of mind upon which he relies. In every sense, therefore, the only fact in issue between the accused and the State is whether, under s 27 of the Criminal Code, the accused is not criminally responsible for those acts on account of his unsoundness of mind.
In reaching my verdicts at this trial and in recognition of the obligation to include the principles of law which I have applied and the findings of fact upon which I have relied, I note that I have included and applied the following principles of law, namely:
(a)The presumption of innocence
This fundamental principle is that at all times the accused is presumed to be innocent of each of the charges against him and that presumption continues to have effect throughout the trial and will be rebutted only if I am satisfied that the prosecution has proved guilt of any particular offence beyond reasonable doubt.
(b)The burden of proof
This fundamental principle provides that at all times the onus of proof rests upon the prosecution to prove each and all of the facts necessary to establish the particular offence. This burden of proof remains upon the prosecution from first until last. If there is any evidence which may or which may appear to be exculpatory of any guilt by the accused, it follows that the prosecution retains the burden to reject or rebut that evidence again beyond reasonable doubt.
(c)Defence of insanity
By virtue of s 26 of the Criminal Code every person is presumed to be of sound mind, and to have been of sound mind at any time which comes into question, until the contrary is proved. Consequently, in a case such as the present where the accused raises a defence of unsoundness of mind within the meaning of s 27 of the Criminal Code there is an onus of proof upon him to rebut the normal presumption of sanity and to do this by adducing or pointing to evidence in the case sufficient to rebut that presumption. It is not necessary that the accused himself give or adduce evidence on this issue if there is other evidence in the case sufficient to rebut the presumption and establish the defence but the accused may, of course, adduce evidence or give evidence himself in support of the defence of insanity without being so obliged. Importantly, the burden of proof of showing unsoundness of mind is upon the balance of probabilities and not beyond reasonable doubt.
(d)Accused giving evidence
In this, as in any trial, the accused person himself is not obliged to give evidence and no adverse conclusion or inference may be drawn from the fact that he does not give evidence. As already stated, the burden of proof of establishing the offence (except for establishing insanity) rests upon the prosecution from first until last. The burden of displacing the presumption of sanity, however, rests upon the accused and may be discharged upon the balance of probabilities regardless of whether the accused himself gives or adduces evidence.
(e)Opinion evidence
In this, as in any other, trial witnesses may usually only give evidence of facts within their personal knowledge known to them by direct observation or participation in the events or matters in issue. Subject to one important exception, witnesses are not permitted to give evidence of opinion. The exception concerns expert witnesses who are recognised by the law as persons who, by reason of study, experience, learning or special training have acquired expert knowledge in an area or areas of human endeavour recognised to be the subject of an established discipline, skill or specialty and who, if appropriately qualified in that discipline or area of skill or specialty, may give their opinion on matters within the scope of their discipline as to how or why or under what circumstances the person has acted or a certain event or events have occurred.
Such a relevant discipline or area of expertise is the science of medicine and, in this case, its specialised area of psychiatry. Hence, evidence has been received directly through the reception of written statements from a number of qualified medical practitioners who are consultant psychiatrists about the question of whether or not this accused was of unsound mind at the time he performed the acts which are the subject of these three charges.
It is important to note that, as with all evidence, opinion evidence even from acknowledged experts is and remains evidence of opinion and that it is for the presiding judicial officer to determine to what extent and to what effect, if any, that evidence should be accepted. It is also the case, however, that where unchallenged expert opinion evidence is received from qualified experts and that is not contradicted then, in the absence of good reason to the contrary, that evidence should be accepted and acted upon.
(f)Causation
As one of the charges against this accused is the charge of manslaughter, it is necessary for the prosecution to prove that the accused killed the deceased and that the killing was unlawful (Criminal Code s 280). In the present case the unfortunate victim died some six months after the alleged assault by Mr Williams and it is therefore necessary for the prosecution to establish, if it can, that his death was caused, in law, by the accused. Section 270 of the Criminal Code provides that any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person. Hence, in the present circumstances, the question becomes whether or not the alleged actions of the accused have directly or indirectly caused the death of Mr Haynes some six months after the alleged attack.
(g)Inferences
In the present case where there is no dispute as to the primary facts which occurred the ultimate issue as to whether or not the accused has satisfied the court, on the balance of probabilities, that he was at the time of doing the acts alleged of unsound mind ‑ that is, that he was 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 the capacity to know that he ought not do the act or make the omission. The determination of whether or not the accused was of unsound mind on any of the three grounds so recognised by law requires a conclusion to be drawn about his mental functioning or capacity at that time.
That is ultimately a question of fact but it is not a fact which is capable of direct observation, measurement of ascertainment. It requires an inference or conclusion to be drawn from a series of other facts or observations such as the accused's actions and demeanour on and shortly before the relevant time, his behaviour and demeanour when committing the acts charged, his acts and demeanour afterwards and, in particular, when participating in an interview with investigating police officers. That fact is also likely to be determined by the accused's prior medical history, including, in particular, any previous history of medical illness, the observations and opinions of treating medical specialists and expert psychiatrists asked to examine him and to consider all the available factual information and express an opinion within their area of expertise and other associated matters.
The ultimate conclusion of fact will, therefore, be a decision to be reached by inference. That is, by a process of rational reasoning based upon other facts or circumstances established to the requisite degree. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction or occurrence itself or explain or make intelligible the course of conduct pursued.
The process of reasoning by inference towards the establishment of the fact which needs to be proved beyond reasonable doubt means that the ultimate fact or conclusion must itself be established beyond reasonable doubt. This means that if there are any other reasonable hypotheses or inferences inconsistent with guilt then the necessary finding cannot be made. The circumstances and facts to be proved must not only be such as are consistent only with guilt but must be such as are inconsistent with any other reasonable conclusion than guilt.

Evidence by consent

At the trial the prosecution formally tendered the statements and the brief comprising pages 11 ‑ 121, which were collectively marked as exhibit 2A. The prosecution also tendered the documents at pages 137 ‑ 141, which became exhibit 2B; the documents at pages 144 ‑ 177, which became exhibit 2C; and the further witness statements in the brief at pages 228 ‑ 237, which became exhibit 2D. In addition, the prosecution tendered the original manuscript statement of the witness Susan Ann Schaper, which became exhibit 3A and a copy of which appeared at pages 54 ‑ 56. Also tendered is exhibit 3B which is the original manuscript statement of the witness Lee‑Anne Julie Galati, a typed script copy of which appeared at pages 73 ‑ 76.
The documentary material comprising exhibits 2B and 2C constitute the police exhibit log recording materials found on the search of the accused's premises Unit 132 Double Beach Caravan Park on the evening of 26 October 2011. Significantly this revealed a large number of packets of prescription medication including five blister packs of Seroquel; 17 blister packs of Valproate; a further box of Sodium Valproate; and another 10 blister packs of that drug as well as a second box of Sodium Valproate. As it has been independently established that Mr Williams had been prescribed these drugs for his chronic condition of Bipolar Affective Disorder it is evident that he was not taking his prescription medication regularly as prescribed, or at all, over recent times.
Also among the documentary materials was a plan of the caravan park at Greenough River, the locations of the accused's unit, where the three men were assaulted were gathered that afternoon, patient care record of Richard Alan Haynes by St John of God Ambulance, reports of senior medical practitioners at Geraldton Regional Hospital upon the presentation and injuries of Mr Haynes and Mr Kevin Bell and Mr Ian Cunneen, the death certificate for Reginald George Haynes, the report from Royal Perth Hospital to the Coroner on Mr Haynes's death, and mortuary post‑mortem identification and autopsy reports relating to Mr Haynes.
Also included was a supplementary witness statement of Mr Kevin Joseph Bell dated 18 July 2013, and a statement of Margaret Patricia Baker dated 26 October 2011.
As previously stated none of this evidence was in any way contested or challenged and it supports and confirms each of the formal admissions made by Mr Williams and all of the contents of the agreed statements of facts.
The only other evidence adduced by the prosecution as part of its initial case was the evidence of Sergeant Simon David Harrison, the investigating officer at Geraldton who had been appointed to be responsible for the management of the entire incident. He confirmed the existence of the quantities of unused prescription medication found on the search of Mr Williams' premises at the caravan park and he then produced a CD of the video record of interview (VROI) conducted between himself, and another detective named Graham and the accused in the Geraldton Police Station on the morning of 27 October 2011.
That VROI became exhibit 4 and was played at the trial. It lasted some 49 minutes. It is significant in what it reveals about the demeanour of the accused on the morning after the assaults. For the whole of the interview he appeared shirtless in the interview room, he was placid but showed limited responsiveness to the questions by the detectives. He appeared to have a limited appreciation of where he was or of the consequences of his interview and it took a long time before he showed any signs of absorbing the meaning of the cautions which the officers patiently repeated to him. His language was slow and sometimes his answers were very long delayed or did not emerge at all. His general demeanour was flat, occasionally uncomprehending and his responses, when they came, were occasionally odd and bordering on the bizarre. For example, he explained that he needed to have done what he did because the man whom he assaulted 'tried to protect the wicked witch'. He admitted striking each of the three men and kicking Mr Haynes in and around the head. He also described threatening other people in the caravan park before the police arrived. His general appearance was of someone who appeared to be experiencing some severe problems or limitations in reasoning and understanding and to be acting in an incongruous manner in the circumstances in which he was placed. His behaviour on that occasion as showed in the video was commented upon by one of the psychiatrists whose reports I shall later describe.
From Mr Williams' account on the VROI, and confirmed independently by other evidence, it emerged that he had a long history of mental illness having been first diagnosed and admitted to Graylands Hospital, Claremont at the age of 13 or 14 years - a very young admission and first diagnosis which itself constitutes a poor prognosis for his long term outlook. The diagnosis was of a psychotic state arising from a Bi Polar disorder with some associated depressive conditions. It responded to appropriate psychiatric medication and he returned to the community, completed schooling to year 12 at Broome and had a variety of low skilled manual occupations. He had several other admissions to Graylands Hospital when his condition had become florid but after each was returned to the community. He had been under the care of the Mental Health Services at Geraldton and had been prescribed Seroquel and Sodium Valproate for his condition as long term medication. In the weeks or months before 26 October 2011 he had not been taking his medication regularly, if at all, and he began to feel ill and notice some peculiarities about his condition which worried him in the days before this incident. A number of his acquaintances and other people at the caravan park also noted peculiar behaviour in the days leading up to 26 October 2011 which are as I shall describe more fully later.
This constituted the case for the prosecution.
When called upon to do so Mr Williams indicated through his counsel that he would be adducing evidence in his defence but that he did not intend to give evidence himself. The only evidence called in his defence was from Dr Victoria Pascu MD, FRANZCP, an experienced consultant psychiatrist and the head of the clinical services at Graylands Hospital since 2010. Dr Pascu produced her report following her interview with the accused and a review of his history. This report is dated 30 March 2012 and became exhibit 5. She described him as being first diagnosed at the age of 14 years with what was later recognised as a Bipolar disorder or a manic depressive disorder. She regarded the early onset of this condition as a poor long term prognostic factor and stated that it constituted a psychotic illness with extreme mood swings between a very great high or manic episode and then low or depressive episodes. He had been prescribed Seroquel as an anti-psychotic medication to deal with his delusions including the hearing of voices, his persecutory delusions and his referential delusions such as seeing flashing lights. The Sodium Valproate (trade named Epilim) was used in his case as a mood stabiliser but it did not address the psychotic symptoms.
In the opinion of Dr Pascu Mr Williams had clearly not been taking his mediation regularly over the period before this incident and there had been a number of indications that revealed that his mental state had been in slow decline over the preceding few months. In her opinion the fly‑in fly‑out working regime that Mr Williams followed as a mining employee but based south of Geraldton meant that compliance with the prescribed pharmacological regime and, importantly, the monitoring of this by mental health medical staff at Geraldton, had become difficult.
The detailed report of Dr Pascu dated 30 March 2012 runs to nine pages. It includes a long description of his account of the offences which is largely consistent with the known events established by other sources. After his arrest he had been transferred to the Franklyn Centre at Graylands on 3 November 2011 on a Hospital Order and has been treated continuously since then under the provisions of the Mental Health Act 1996 (WA). He was initially in the secure ward and was transferred to an open ward under the care of the State Forensic Mental Health Service on 17 January 2012. At the time of reporting (March 2012) Mr Williams was a voluntary patient in the open ward and his mental state had significantly improved with treatment. He remained compliant with bailed conditions and the prescribed medications.
A detailed account of his past history was given including the first episode of psychosis at the age of 14 years resulting in the admission to Graylands Hospital in April 1997. He was treated there for about two weeks and was diagnosed with a brief reactive psychosis and then discharged to the care of his family and the local mental health clinic and the local general medical practitioner. He had another admission to the local Broome Hospital in 2006 but his illness was managed mainly in the community. Shortly after his first Graylands admission his diagnosis was revised to that of Bipolar Affective Disorder but his compliance with treatment and follow up had been erratic.
At Mr Williams' admission to Graylands after these charges on 3 November 2011 he was described as being acutely psychotic, with grandiose and persecutory and referential delusions and auditory hallucinations.
There is no family history of psychotic disorders or depression or of abuse of prescribed or illicit drugs. There is some history of the use of alcohol. Dr Pascu described a clinical diagnosis of Bipolar Affective Disorder, mixed state with psychotic features - currently in remission and on treatment. She considered him to have limited social support in the community and to be experiencing appropriate anxiety relating to the forthcoming court case.
Dr Pascu described Mr Williams as presenting with a long well documented history of a major mental illness, namely the Bipolar Affective Disorder dating from the age of 14 years. In her opinion at the time of these offences he was suffering from acute psychotic symptoms in the form of persecutory, grandiose and referential delusions together with auditory hallucinations which most likely affected his judgment and contributed to him committing the offences. She was of the opinion that his behaviour leading to those offences was a consequence of his psychosis where he believed that his life was in danger and had to protect himself.

Addressing specifically the criteria of insanity prescribed in s 27 of the Criminal Code, Dr Pascu was of the opinion Mr Williams was not deprived of the capacity to know what he was doing but that he was deprived of the capacity to know that he ought not do the act. She also considered that his capacity to control his actions was significantly impaired due to his mental illness.
Those conclusions, if accepted, would establish unsoundness of mind within the meaning of s 27 of the Criminal Code. But there had been other psychiatric examinations and reports on Mr Williams' condition obtained respectively for the magistrate at the court in Geraldton and later for the State prosecutor at the DPP. Copies of those had been provided to Dr Pascu and she was familiar with them. There is nothing in either of them she regarded as requiring any change or modification of her own opinions or conclusions. The evidence of Dr Pascu was not challenged by counsel for the DPP. That constituted the case for the defence.
Then, without objection, indeed with his counsel's consent, counsel for the DPP tendered written reports of the two other psychiatrists who had examined Mr Williams in relation to the issue of insanity which had been raised by the evidence of Dr Pascu. In form this additional evidence was tendered in rebuttal but in fact it supported the opinions of Dr Pascu and the defence of insanity.
At this point I should observe that the prosecution had accepted, from before the commencement of the trial, that there are grounds to establish a defence of insanity and that it should be conceded subject to the verdict of the court.

The prosecution evidence on issue of insanity

The report of Dr Mercea Schineanu MD FRANZCP, a consultant psychiatrist, at the State Forensic Mental Health Service Inpatient Forensic Service at the Frankland Centre, Graylands Hospital, was dated 3 January 2012 and was addressed to the Presiding Magistrate of the Geraldton Magistrates Court, having been requested by that court under s 5 and s 4 of the Criminal Law (Mentally Impaired Accused) Act 1996.
Dr Schineanu's report is based on numerous psychiatric examinations of Williams while at the Frankland Centre, 24‑hour nursing observations, allied health assessments, a review of the police statement of material facts and information obtained from Mr Williams' parents. It describes his presentation on admission, referring to a cut on his right arm from which he drank blood, saying, 'It was something that had to be done. I was told by a higher force.' The conclusion was that his compliance with his Sodium Valproate and Seroquel regime had been rather erratic. He described other delusions relating to the day of the offence, saying, 'I saw a woman driving a car. She was in disguise. I saw a black car driven by a disguised policeman and other men around.' When asked to explain what had happened, he said, 'I was performing what I was told to do. You would understand if you would be spiritual. I don't know who to trust. I don't know if I should tell you anything.'
Dr Schineanu referred to the past medical history, including the diagnosis of Bipolar Affective Disorder, which was put at the age of 15. There is also reference to Williams' first admission to Graylands in 1999, another admission in 2006/2007 and follow‑up by the Broome Mental Health Service and at Carnarvon. There was no recent history of misuse of drugs or substance abuse and Williams consumed alcohol only on a social basis. The only family psychiatric history was that a great‑aunt suffered from depression. The mental state examination resulted in Williams describing numerous persecutory delusions, auditory hallucinations and ideas of reference. His affect was restricted. His mood was moderately depressed. He had some insight that he suffered from a mental illness but remained insightless to the significance of his psychotic experiences. The diagnosis was of Bipolar Affective Disorder (of mixed date with psychotic features).
The opinion of Dr Schineanu was that Williams suffers from a chronic mental illness for which he had been treated continuously for many years. Unfortunately, his treatment for the last year had been erratic and, although he continued to take medication, some on a regular basis and some less regularly, his mental illness was only in partial remission. In the view of Dr Schineanu, at the time of the offence Mr Williams was floridly psychotic and it appeared that his behaviour leading to these present charges was psychotically driven. In Dr Schineanu's opinion, he required ongoing indefinite treatment for mental illness. Dr Schineanu's report became exhibit 6.
A more recent report obtained by the DPP is from Dr Adam Brett FRANZCP, a consultant psychiatrist, and a medical psychiatrist at the Osborne Park Medical Health Clinic, the Bunbury Community Mental Health Clinic and a psychiatry member of the Mental Health Review Board. Dr Brett's report is dated 23 January 2013 and was provided to the DPP following psychiatric assessment undertaken to address the question of whether or not Williams was of unsound mind within the meaning of s 27 of the Criminal Code. There was no relationship of confidentiality between Dr Brett and Williams and this had been made clear to the accused.
Dr Brett's report was compiled on the basis of clinical interviews at Graylands Hospital on 24 December 2012 and 23 January 2013, the Graylands Hospital record, liaison with the treating psychiatrist, Dr Schineanu, and access to the Western Australian mental health database service entry and client case history, together with material provided by the prosecution in the referral.
Dr Brett gave a lengthy account of Williams' description of the alleged offences, which included references to several forms of delusions and of him thinking that people were coming to kill him. He described being paranoid about the female manager at the park, whom he called 'the wicked witch'.
Dr Brett also reviewed the information which had been gathered by the police from other witnesses of the events at the caravan park which revealed, in different ways, the peculiar behaviour of Williams leading up to the event and how he appeared to be acting strangely in a variety of ways. Dr Brett also watched the VROI and described Williams' appearance during that interview as having blunted affect and reduced facial movement and reactivity. His speech was monotonous with reduced prosody and it was apparent that the interviewers understood that Williams was impaired. The interview included Williams describing several paranoid ideas about people at the caravan park and peculiar reactions to the death of Mr Haynes, including the belief that 'he was going to burn in hell'.
The previous psychiatric history was reviewed, together with the family history and personal history. Dr Brett carried out a mental state examination and then described his psychiatric diagnosis as consisting of two clinical disorders ‑ Bipolar Affective Disorder with psychotic features and a differential diagnosis of Schizoaffective Disorder.
In his final conclusion Dr Brett set out his opinion that Mr Williams had a history and clinical presentation consistent with a major mental illness, Bipolar Affective Disorder with psychotic features and the differential diagnosis being Schizoaffective disorder. Each mental illness constituted a mental impairment within the meaning of s 27 of the Criminal Code in his opinion.
Dr Brett regarded Williams as having been acutely unwell at the time of the alleged offending. His history was regarded as consistent with an acute psychotic episode and the history given by the observers supported this. In Dr Brett's view, the police interview showed evidence of mental disorder and the hospital records document mental disorder when he was admitted following the accident. In Dr Brett's opinion, Williams was acutely unwell and suffering from a mental impairment at the time of the alleged offending so as to deprive him of some capacities. Williams believed that there was a conspiracy within the caravan park to do him harm. He believed that his life was at risk. He perceived the people in the park were involved in criminal activities involving murder.
In Dr Brett's opinion, Williams understood what he was doing in that he knew the physical act of harming someone. However, Dr Brett's opinion is that due to Williams' mental impairment he was deprived of the capacity to control his actions and of the capacity to know that he ought not do those acts. Dr Brett observed that the alleged offending appears to be motiveless but if the psychotic symptoms are taken into account the behaviour becomes more understandable. In his opinion, there did not appear to be any better explanation for the offending that Williams' mental impairment.

Collateral evidence

Dr Brett made reference in his report to a review of collateral information which I have already briefly mentioned. This was a reference to statements of witnesses obtained by the police about the conduct of Williams at the caravan park in the days before 23 October 2011 and on that day both before and after the incident. That information is evidence in the brief which has been tendered by the prosecution and accepted by counsel for Mr Williams.
In view of the admissions made and the agreed statement of facts it has not been necessary for me to detail that evidence in these reasons but in view of Dr Brett's report, it is desirable to make some brief references to part of it.
One of the victims Mr K J Bell said that he had known the accused for three years since he had moved into the caravan park and saw Nathan standing in the middle of the road in a light rain shower immediately before the incident. Mr Bell said that he looked highly agitated. Similarly, Mr Cunneen, another of the victims, said that he had known Nathan for five years and that before the incident he was just standing near Kevin Bell's unit staring into the distance and 'looking like a zombie'.
Another occupant of the park, Mr D J Cooper described how Nathan started punching Kevin Bell after dragging Kevin for some distance towards Bell's car. Another caravan park resident, Ms S A Schaper, who spoke to Williams after the incident said that he replied 'I do what I do again for women and children'. Still another resident at the caravan park Mr G R Power had known Williams for three years and saw the incident involving the assaults. He said that Nathan was not the same person that he knew and that 'the look I saw in Nathan's face was if he wasn't there ‑ ‑ ‑ it was a ferocious look but it was as if the lights were on but no one was home'.
Another resident Ms L A J Galati had known Williams for five years and saw Williams assault Kevin Bell who had been fleeing from the scene looking for help. She said that Nathan Williams had always been fairly quiet and as far as she knew had had no problems with other residents. However, when she saw him attack Mr Bell Williams 'didn't look like himself. His eyes were popping out of his head.' Another person who had been staying at the Greenough Caravan Park at the time, Mr D J Shaw, heard Williams yelling at him and telling him to get into his caravan. He had been yelling in an angry way but then 'he suddenly seemed calm, like Dr Jekyll and Mr Hyde'.
Another resident Mr M B Hikaway heard a commotion and yelling outside his caravan and went to investigate. He said that 'I saw a big crazy bastard getting around ‑ ‑ ‑' he went on to describe how Williams was yelling at other residents and telling them to get into their vans.
Mr A J Synan was another resident at the caravan park who had known Nathan Williams for about four years. He saw him on the day before the assault and he visited Williams in his unit. Synan saw glass smashed on the floor of Williams' unit and tried to talk to him 'but it was like talking to a chair'. He had also seen him earlier on Sunday, 23 October 2011 and regarded Nathan as being depressed and not the person he knew. That Sunday Williams told Synan that 'he was losing everything ‑ ‑ ‑ he'd lost his dog, lost his house, everything he owned and his friends'. Synan attempted to reassure him but he said that he 'was like a horse with blinkers on'.
Another resident Ms N M Letang who had been at the caravan park that day went to investigate the commotion and, after describing the events, said that Williams did not seem to be aggressive with females only with males. Mr T A Humphries who had been staying at the caravan park that day described having been confronted by Williams when he was going to the toilet block and being yelled at and told to get back to his van. Williams tried to punch Humphries but he blocked the punch and said that he knew from the way Williams was acting 'that something funny was going on with him'.
All these explanations are consistent and reveal a pattern of behaviour suggesting that Nathan Williams' behaviour was deteriorating over a period of 48 to 72 hours at least before the assaults on 26 October 2011. They further show that his behaviour on that occasion was quite out of character, unreasoning, and peculiar. I am satisfied that these descriptions support the observations and conclusions reached by Dr Brett.
The prosecution accepted the opinions of Drs Brett and Schineanu which are, except for some minor immaterial details, in my view, entirely consistent with the opinion of Dr Pascu.

Conclusion

I consider that I should accept the opinions of all three psychiatrists and conclude that on the afternoon of 26 October 2011, when Nathan Daniel Williams assaulted Mr Bell, Mr Cunneen and Mr Haynes, leading to the subsequent death of Mr Haynes, he was in such a state of mental impairment as to deprive him of the capacity to control his actions and of the capacity to know that he ought not do the act or acts constituting the assaults. Consequently, by reason of s 27(1) of the Criminal Code, he is not criminally responsible for those acts on account of unsoundness of mind. I am satisfied that this has been established on all the evidence, certainly on the balance of probabilities, indeed, no other conclusion could be reached on the evidence received.
Accordingly, by virtue of s 146 of the Criminal Procedure Act, my verdicts after this trial are that the accused, Nathan Daniel Williams, is not guilty of the three offences charged in this indictment in each case on account of unsoundness of mind. I record that finding as required by the statute.

Orders

As a consequence of these verdicts, I am obliged to exercise the powers conferred on the court by s 21 of the Criminal Law (Mentally Impaired Accused) Act 1996, which requires that this court must make a custody order in respect of the accused if the offences in respect of which these acquittals have been made are Schedule 1 offences. Schedule 1 of that Act provides that manslaughter, under s 280 of the Code, and assaults occasioning bodily harm under s 317 of the Code, are Schedule 1 offences. Consequently, the making of custody orders is obligatory and I now make these orders.
By s 24 of that Act the general effect of a custody order is that a mentally impaired accused is to be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Board until released by an order of the Governor.
There is also provision for mentally impaired accused to be detained in an authorised hospital but only if he has a mental illness which is capable of being treated. Such a person's place of custody and the determination of his treatment and its duration will be decided by the Mentally Impaired Accused Review Board established under Part 6 of that Act and as determined by the Governor.
Accordingly, the judgment of this court is that Nathan Daniel Williams is acquitted of the three charges presented against him by this indictment by reason of unsoundness of mind. A custody order under s 21 of the Criminal Law (Mentally Impaired Accused) Act 1996 is made in respect of each of those three verdicts.