The State of Western Australia v Zahidi [No 2]
[2024] WASC 8
•17 JANUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ZAHIDI [No 2] [2024] WASC 8
CORAM: WHITBY J
HEARD: 15 JANUARY 2024
DELIVERED : 17 JANUARY 2024
FILE NO/S: INS 22 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
LIAQAT ALI ZAHIDI
Accused
Catchwords:
Criminal law - Trial by judge alone - Attempted murder - Whether accused of unsound mind - Whether accused in a state of mental impairment - Whether accused deprived of the capacity to know that he ought not to do the acts that cause the death of the victim - Whether the accused was deprived of the capacity to control his actions - Expert psychiatric evidence that the accused was suffering from schizophrenia and lacked relevant capacity
Legislation:
Criminal Code (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)
Result:
Accused not guilty of the attempted murder on account of unsoundness of mind
Custody order made
Category: B
Representation:
Counsel:
| Prosecution | : | S M Stocks |
| Accused | : | S M Whybrow SC & P Chong |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Patti Chong Lawyer |
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
Quartermaine v The Queen (1980) 143 CLR 595
R v Falconer [1990] HCA 49; (1900) 171 CLR 30
R v Porter [1933] HCA 1; (1933) 55 CLR 182
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
The State of Western Australia v Brown [2013] WASC 349
The State of Western Australia v Herbert [2017] WASC 101
The State of Western Australia v Hone [2007] WASC 64
The State of Western Australia v Jones [2018] WASC 395
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
The State of Western Australia v Taylor [2021] WASC 470
The State of Western Australia v Zahidi [2023] WASC 359
Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254
WHITBY J:
Introduction
The accused, Liaqat Ali Zahidi, has been indicted on one count that alleges that on 7 September 2021 at East Perth, the accused attempted unlawfully to kill Muhammad Danial Waheed contrary to s 283(1) of the Criminal Code (WA).
The State's case is that the accused stabbed Mr Waheed multiple times with a knife with the intent to kill and thereby caused bodily injuries to Mr Waheed.
On 21 September 2023, McGrath J ordered that the accused be tried by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA).[1]
[1] The State of Western Australia v Zahidi [2023] WASC 359.
The trial took place before me on 15 January 2024. At the commencement of the trial the accused pleaded not guilty on account of unsoundness of mind.[2]
[2] CPA, s 126(1)(d), s 142.
Therefore, the issue at trial was whether the accused could prove on the balance of probabilities that he was not criminally responsible for the attempted murder of Mr Waheed on account of unsoundness of mind. That issue requires the determination of the following matters:
(1)was the accused mentally impaired at the time that he attempted to unlawfully kill Mr Waheed?
(2)if the accused was mentally impaired at the relevant time, was it more likely than not that his mental impairment deprived him of one of the capacities contained in s 27(1) of the Criminal Code?
For the following reasons, I am satisfied that it is more likely than not that the accused was mentally impaired at the time he stabbed Mr Waheed with the knife and thereby caused him bodily injuries. I am further satisfied that the mental impairment was of such a nature and intensity as to deprive the accused of the capacity to know that he ought not do the acts and to deprive him of the capacity to control his actions that caused the injuries to Mr Waheed. Therefore, I find that the accused cannot be considered criminally responsible for his actions and must be found not guilty on account of unsoundness of mind.
Therefore, I am required to make a custody order pursuant to s 21 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). The accused will be detained until released by an order of the Governor.
In these reasons, I consider the following:
(1)the relevant legal principles;
(2)the admissions made by the accused pursuant to s 32 of the Evidence Act 1906 (WA) (Evidence Act), the Statement of Agreed Facts and the evidence of the accused;
(3)the psychiatric evidence; and
(4)assessment and findings.
Legal principles
Trial by judge alone
Pursuant to s 119(1) of the CPA, a judge sitting alone must apply, so far as practicable, the same principles of law and procedure as would be applied in a trial before a jury. The judgment of the judge in a trial by judge alone must state the principles of law that he or she has applied and the findings of fact upon which he or she has relied.[3]
General principles
[3] CPA s 120(2).
The accused is presumed to be innocent of the charge. The burden of proving his guilt is on the State. The standard of proof required to be achieved is proof beyond reasonable doubt. Unless I am satisfied that each element of the offence has been proved to that standard, the accused must be acquitted.
I must not speculate about matters not in evidence or look for theories that are not supported by the evidence. My verdict must be based only on the evidence.
If it is necessary to draw inferences as to essential facts from the evidence, I am not permitted to draw an inference adverse to the accused unless that inference is the only reasonable one open on the evidence.
The State relied upon the expert evidence of Dr Adam Brett and the defence relied upon the expert evidence of Dr Victoria Pascu and the expert reports of Dr Elizabeth Tate. The expert opinions do not contradict each other in any material way. While I am not bound to accept and act upon the expert evidence, where there is no evidence or circumstance to contradict that evidence, a verdict cannot be given that is contrary to that evidence.[4]
[4] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 [124].
In assessing the evidence and reaching a verdict, it is necessary to guard against any feelings of prejudice or sympathy. Such feelings must be put aside, and the issue of whether the accused's guilt has been proved must be determined dispassionately and objectively.
I also direct myself that it is dangerous to assess the accused's words and actions in testing the accused's capacity to control his actions or to know that he ought not to do the act that resulted in the charge by the standards of people who do not suffer from a mental illness.
Elements of the offence of attempted murder
Section 283(1)(a) of the Criminal Code provides that any person who attempts to unlawfully kill another is guilty of a crime. The elements of attempted murder are that the accused was the person who did the acts alleged, the accused intended to kill the complainant, the accused began to put his intention into execution by means adapted to its fulfilment, and manifested his intention by an overt act.[5]
[5] Quartermaine v The Queen (1980) 143 CLR 595, 598.
In this case, the accused made formal admissions that he stabbed Mr Waheed, and at the time that he did so, he had formed an intention to kill Mr Waheed.
I am satisfied beyond reasonable doubt that the accused took possession of a knife and then stabbed Mr Waheed multiple times with that knife and thereby caused bodily injuries to Mr Waheed.
Whether the act of stabbing Mr Waheed with a knife constitutes attempted murder depends upon the intention of the accused at the time of inflicting the bodily injuries by stabbing Mr Waheed. The accused has raised the defence of unsoundness of mind. If this defence is raised, the court must determine the question 'is the accused criminally responsible for the act of stabbing Mr Waheed with the knife having regard to s 27 of the Criminal Code?' It is only if the answer to this is yes, that the next issue arises for consideration, that being what the accused's intention was at the relevant time. Therefore, the issue of insanity must be determined before considering the intention of the accused.[6]
Insanity
[6] Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 [25].
Every person is presumed to be of sound mind until the contrary is proved.[7] The accused has the onus of proving, on the balance of probabilities, that he was not of sound mind, that is that he is not criminally responsible pursuant to s 27 of the Criminal Code, at the time that he did the act that is alleged to constitute the offence.[8]
[7] Criminal Code s 26.
[8] R v Porter [1933] HCA 1; (1933) 55 CLR 182.
Section 27 of the Criminal Code provides:
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of the 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.
In this trial, s 27(1) of the Criminal Code is the relevant provision. The accused asserts that, at the time he did the act that is alleged to constitute the offence, he did not have the capacity to know that he ought not do the act and that he did not have the capacity to control his actions.
Section 1(1) of the Criminal Code defines 'mental impairment' as including 'mental illness'. 'Mental illness' is defined as meaning:
[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.
In The State of Western Australia v Herbert,[9] Jenkins J made the following observations, which I respectfully adopt:
[9] The State of Western Australia v Herbert [2017] WASC 101 [47] - [51].
An 'infirmity of the mind' is a weakness of the mind. The Shorter Oxford Dictionary defines 'pathological' to mean pertaining to or dealing with pathology. In turn, it defines 'pathology' to mean either the science or study of disease; that department of medical science, or of physiology, which treats of the causes and nature of diseases, or abnormal bodily affections or conditions. Thus, an underlying pathological infirmity of the mind is an underlying infirmity of the mind which is related to disease or an abnormal bodily condition.
The definition of 'mental illness' reflects some of the comments made by King CJ in Radford (1985) 20 A Crim R 388, 396 about the meaning of the expression 'disease of the mind' which is used in the common law of insanity. The then Chief Justice of the Supreme Court of South Australia said:
(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 arteriosclerosis, 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 called ''defect of reason' in the M'Naghten rules, 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 be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli'.
In R v Falconer [1990] HCA 49; (1990) 171 CLR 30, the High Court generally approved of King CJ's comments even in the context of the then Criminal Code provisions.
When Falconer was decided, the Code s 27 was differently worded. Section 27 was amended and the definition of mental impairment was inserted after Falconer was delivered. The subsequent amendments to the Code are consistent with King CJ's statement of principles in Radford, although the Code definition of 'mental impairment' is broader than that of 'disease of the mind' which was considered by King CJ. Nevertheless, acute intoxication with alcohol and/or drugs is not a 'mental impairment'.
What is a mental illness is a question of law for the judge. Whether or not the facts disclose a state of mental illness is a question for the decider of fact.
Capacity to know that he ought not do the act
In Stapleton v The Queen,[10] the High Court, in considering the term 'capacity to know that he ought not to do the act', said:
For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. See R v Davis (1881) 14 Cox CC 563, Stephen J, R v Kay (1904) 68 JP Jo 376, Stephen J. In R v Porter (1933) 55 CLR 1828 at pp 189, 190, this was expressed by Dixon J as follows:
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. (footnotes omitted)
[10] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 367.
In Evans v The State of Western Australia,[11] McLure P observed that there was 'no suggestion of any material distinction between the common law and s 27 in relation to the meaning of the capacity on the part of an accused to know that he ought not do the act'. In this context, her Honour was referring to one of the common law requirements in insanity cases; that the accused be deprived of the ability to know that the act was wrong. Her Honour referred to the statement of Dixon J in R v Porter as giving the 'clearest explanation of the principles' as to the capacity to know that the act was wrong:
Then I have used the expression 'know', 'knew that what he was doing was wrong'. We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a reasonable person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged.[12]
[11] Evans v The State of Western Australia [2010] WASCA 34.
[12] R v Porter (189 - 190).
McLure P referred to the decision of the High Court in Stapleton v The Queen[13] in which the High Court held that the requirement is not that the accused knew the act was wrong according to law,[14] rather:
…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.[15]
Capacity to control his actions
[13] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358.
[14] Stapleton [29] - [30].
[15] Evans [31].
The proper construction of whether an accused had the capacity to control his actions was considered by Derrick J in The State of Western Australia v Taylor.[16]I respectfully agree with the following observations of his Honour:
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'.[17] The ordinary plain meaning of the word 'control' is 'the power of restraining especially self-restraint'.[18]
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).[19] 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.[20]
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.[21] 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).[22]
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).[23]
[16] The State of Western Australia v Taylor [2021] WASC 470 [50] - [53].
[17] Australian Concise Oxford Dictionary (5th ed), page 203.
[18] Australian Concise Oxford Dictionary (5th ed), page 303.
[19] R v Falconer [1990] HCA 49; (1900) 171 CLR 30(39 - 40, 46 - 47); TheState 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[2018] WASC 395[46].
[20] The State of Western Australia v Marotta [44]; The State of Western Australia v Jones [46].
[21] R v Falconer (60, 71, 82).
[22] The same view was expressed by Commissioner Sleight in The State of Western Australia v Strabach [No 2] [64] - [65].
[23] The State of Western Australia v Marotta [45].
Evidence
Admissions
Pursuant to s 32 of the Evidence Act, the accused made admissions in the following terms[24]:
[24] Exhibit 2.
1.At about 11 pm on 8 September 2021 I was present in the kitchen area of the Koala Backpackers, 283 Hay Street Perth.
2.Shortly after 11 pm on 8 September 2021 I attacked Mr Muhammad Daniel Waheed with a butcher's knife that was approximately 30 cm long.
3.I obtained the knife from a knife block in the kitchen immediately before I attacked Mr Waheed.
4.The attack lasted about 30 seconds.
5.Mr Waheed did not provoke the attack in any way.
6.In the course of the attack, I stabbed Mr Waheed with the knife a number of times including to the torso, chest, buttocks and back of the head/neck causing him serious injuries.
7.In the course of the attack, I tried to stab Mr Waheed a number of times and missed or failed to cause him any injury.
8.The ferocity of the attack and the areas I stabbed and attempted to stab Mr Waheed I was attempting to kill Mr Waheed.
9.The attack and my conduct is accurately depicted in the CCTV obtained from Koala Backpackers.
Agreed Facts
Both counsel for the State and for the accused agreed to rely upon a statement of agreed facts (Agreed Facts).[25]
[25] Exhibit 1.
With respect to the Agreed Facts, s 93 of the CPA 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 section 27, the accused is not criminally responsible for an act or omission on account of unsoundness of mind; and
(b)that 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 paragraph (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 a jury has been sworn to give a verdict on the charge, must discharge the jury from giving its verdict on the charge.
(2)Subsection (1) is in addition to and does not affect the operation of section 146.
Given that the State and the accused consented to the Agreed Facts being relied upon, I am required to determine whether it is in the interests of justice to decide the issue in reliance on the Agreed Facts. The facts are supplemented by the oral testimony of the witnesses and the exhibits. The accused gave evidence that he agreed that the Agreed Facts in relation to his background and personal circumstances, as read out by counsel for the prosecution at the trial, was true and correct.[26] Further, the Agreed Facts are a narrative of the CCTV footage of the relevant incident giving rise to the charge. The CCTV footage was tendered as an exhibit.[27] In all of the circumstances, I am satisfied that it is in the interests of justice to receive the Agreed Facts as establishing part of the factual circumstances relevant to the determination of the issue in this case.
[26] ts 45.
[27] Exhibit 4.
The Agreed Facts are in the following terms:
1.Mr Liaqat Ali Zahidi ('the accused') is charged with one count that he on 8 September 2021 attempted to murder Muhammad Daniel Waheed ('the victim') at the Koala Backpackers, 283 Hay Street Perth ('the hostel') contrary to section 283(1) of the Criminal Code Act Compilation Act 1913 ('the CCA')
2.The accused admits that he stabbed the victim at the time and place and in the manner alleged by the State.
3.The accused asserts that he is not guilty of the offence by reason of Insanity/Mental Impairment, pursuant to section 27 of the CCA.
4.The accused was committed for trial on 8 June 2022.
The Accused's Background
5.The accused was born on or about 31 December 1993 in Afghanistan and is 30 years old. At the time of the alleged offence he was 28 years old.
6.The accused travelled to Australia from Indonesia by boat when he was 15/16 years old. He was initially detained on Christmas Island before being transferred to Port Augusta and later Melbourne. He was granted a permanent residence (PR) visa on 15 December 2010.
7.To the best of the knowledge of the State and the accused's legal representatives, the accused moved to Perth soon after obtaining permanent residency and has no family in Australia. The accused purchased a truck and worked as a delivery driver for a number of years.
8.On 28 November 2018 the accused was arrested for trespass and stealing in Karratha. He was subsequently transferred to Hakea Prison on remand before being granted conditional bail around Christmas 2018.
9.On about 21 February 2019 the accused attended Perth Domestic Airport in breach of his bail and was arrested and returned to custody at Hakea Prison.
10.On 26 February 2019 the accused returned to his cell to see a number of inmates assaulting his cell mate Mr Alf Eades. Mr Eades was lying in a large pool of blood on the cell floor
11.On about 28 February 2019 the accused was himself violently assaulted whilst in custody, sustaining significant head injuries resulting in being transferred to Fiona Stanley Hospital and placed in a coma. The accused subsequently returned to the Crisis Care Unit at Hakea for a number of days whilst he recovered from the assault.
12.On 11 March 2019 Mr Eades died of his injuries and on 14 March 2019 the accused signed an 18 page statement in relation to the assault on Mr Eades.
13.On about 28 June 2019 the accused was sentenced to 7 months imprisonment (suspended) for the stealing charge and released from custody.
14.On 19 June 2020 the accused was returned to custody for 3 months imprisonment for breaches of his conditional release order.
15.On 12 August 2021, four weeks before the accused stabbed Mr Waheed, the accused gave evidence in the murder trial of State v Clay, Kapene, McGlade, Penny & Taylor. In the course of giving evidence, the accused stated when he returned to his cell 'the floor was bleeding'. When cross examined about having himself been assaulted the accused stated 'I was on the floor. I woke up. I- I didn't understand. I got - I got knock out. I woke up. Everywhere was blood. Covered - blood was covered everywhere .. .my blood from my mouth and from my nose and probably from my eyes'.
The Stabbing of Mr Waheed
16.On 8 September 2021 the accused was residing at the Koala Backpackers, 286 Hay Street Perth ('hostel'). The accused had been residing at the hostel on and off in the preceding 18 months.
17.The victim and his friend Mr Ricky Belmonte were also residing at the hostel on 8 September 2021.
18.The owner of the hostel, Mr Dale Windus, told police he noticed changes in the accused's behaviour in the week leading up to 8 September 2021. The accused, who had never previously used the pool table at the hostel or expressed any interest in playing pool, started to spend a lot of his time playing pool. At one point, whilst playing pool, the accused pointed to someone and told Mr Windus 'He took two litres of blood out of me in prison.' Mr Windus described other conversations and behaviour he considered out of character from his observations of the accused.
19.On about 6 September 2021, as a result of complaints he had received about the accused's behaviour and what Mr Windus described as 'delusional things' the accused had started saying, the accused was given notice to leave the hostel. These complaints did not relate to the victim.
20.Mr Windus and Mr Belmonte and the victim all stated there was no history of any negative interaction or ill feeling between the accused and either the victim or Mr Belmonte. Neither the victim nor Mr Belmonte had any reason to consider there was any conflict between either of the two men or the accused.
21.The area where the stabbing occurred was covered by CCTV which recorded video and sound.[28]
[28] Exhibit 4.
22.On the evening of 8 September 2021, the victim was in the communal kitchen area of the hostel speaking with Mr Belmonte. The kitchen contained a bank of fridges, an island food preparation bench (Island), and a long contiguous food preparation bench on the side of the kitchen against a wall opposite to the bank of fridges (Bench).
23.At 11 pm that night, the victim was standing at the island bench in the centre of the kitchen opposite to Mr Belmonte. They had been in the kitchen area talking to each other since around 8 pm that evening. Mr Belmonte had his back to the bank of fridges and was looking toward the victim who was standing on the opposite side of the island bench.
24.The following times references are from the Hostel CCTV. It is accepted that the CCTV clock was inaccurate in that the time it displays is approximately 12-13 minutes later than the actual time.
25.At 23:16:24 the accused entered the kitchen and took a cup from a shelf against a wall in the central part of the kitchen. He placed the cup on the bench next to a kettle and walked to the opposite side of the kitchen, returning with a bag of something - possibly a powdered soup - which he poured into the cup.
26.At 23:17:18 the accused walks past the victim towards the fridges in the kitchen and removes a carton of milk. He pours some milk into the cup and returns the carton to the fridge.
27.Neither Mr Belmonte or the victim were physically obstructing access to the fridges, the island or the bench, except to the extent that the accused had to walk around that portion of the island bench that they were standing in front of.
28.At 23:18:12, after dipping a tea bag into the cup, the accused stands motionless for about 15 seconds (until 23:18:27) when he tops off his drink with water from the kettle. The accused then moves towards the island bench to the left of where the victim is standing. No interaction occurs.
29.At 23:18:40 the accused bends over the island bench to obtain what appears to be a spoon from a lower shelf of the island bench. The victim presents no impediment to this action and again no interaction between the accused and the victim occurs.
30.A third man (wearing thongs, glasses with a ponytail) who had been cleaning the kitchen is standing near to where the accused was; there is also no interaction with this man.
31.The victim and Mr Belmonte continue their conversation (totally unrelated to the accused).
32.In the following 3-5 seconds, the accused straightens up with the spoon, transfers it to his left hand and takes a step back toward the side bench. He then reaches for a knife contained in a knife block on the side bench and aggressively tries to remove the knife he selected.
33.The accused is initially unable to properly remove the knife and throws his hand up and down violently in an attempt to take the knife from the block. In doing so the knife is eventually removed (approx. 1 second later) with sufficient force to cause the knife block to be thrown up into the air, landing on the ground in between the two benches.
34.The noise made by the removal of the knife attracts the attention of the victim who turns slightly to look in the direction of the accused.
35.As the victim turns to look toward him, the accused takes a short step toward the victim whilst holding the knife in his right hand and thrusts the knife forward to (and it appears into) the midriff of the victim.
36.The victim retreats from the accused, backwards around the island bench. The accused follows the victim, clearly seeking to stab him further.
37.As the victim starts to move away, the accused reaches out to grab the victim's clothing with his left hand, whilst continuing to hold the knife in his right. The accused stabs the victim again as the victim starts to fall to the ground. At this point the accused has stabbed or tried to stab the victim in the midriff area three times.
38.The victim falls against the island bench causing it to move and causing the victim to lose his balance and fall to the floor of the kitchen. The third man retreats as Mr Belmonte has moved cautiously around to the other side of the kitchen.
39.As the victim fell the accused also stumbled to the floor and dropped the knife. The victim repeatedly is saying 'what have I done.' The accused says nothing throughout the entire attack.
40.The accused quickly regains the knife whilst maintaining a grip on the victim.
41.The victim attempts to stand and rotate away from the accused. The accused continues to attack the victim with the knife thrusting it to the back of the neck of the victim. At this time the accused has a hold of the victim's wrist and preventing him from moving out of reach.
42.The accused raises his hand up over his head and thrusts the knife down toward the head of the victim in a stabbing motion. The victim loses his balance and again falls to the floor whilst the accused stands up and continues to attack the victim with the knife.
43.The victim, on his back raises his hands in a defensive manner and attempts to use his legs to repel the accused. The victim tries to roll away as Mr Belmonte attempts to distract the accused and stop the attack. The victim eventually manages to get to his feet and flees the kitchen.
44.The whole attack from grabbing the knife until the victim manages to flee the kitchen takes about 30 seconds.
45.At 23:19:20 the accused abruptly stops seeking to attack the victim and walks back to the sink, tossing the knife under a running tap.
Immediate aftermath
46.Whilst other people at the hostel tended to the wounds of the victim, the accused walked aimlessly around the kitchen/office area not speaking to anyone for about 30 seconds.
47.At 23:19:54, the accused re-enters the kitchen area. He pauses and kicks the victim's phone from where it is in the middle of the floor, and it skids across the floor coming to rest near the displaced island bench.
48.The accused looks briefly at the phone before he moves to the sink where he earlier threw the knife and proceeds to wash his hands and then the knife. He then takes the knife and seems to try and return it to the knife block (which had been pulled off the wall). Unable to put the knife back the accused puts the knife back in the sink and leaves the kitchen and walks out of the hostel.
49.The initial call to police was made at 11:06pm (real time not CCTV time). After leaving the kitchen the second time the accused went to an area adjacent to the hostel where he was located by Police shortly after they arrived.
50.When first spoken to by police the accused seemed to not understand why he was being spoken to but was compliant. When advised he was under arrest, he indicated that he would like to contact a friend by the name Hazaragi.
Victims Injuries
The injuries are set out in the report of Dr Sophie Bonser (PB99-102). This report is attached to these facts as Annexure A.[29]
[29] Photographs of the complainant's injuries; Exhibit 3.1-3.7.
Psychiatric Reports
51.On 25 October 2021 the accused was referred to the Frankland Centre, State Forensic Mental Health Service pursuant to the Mental Health Act 2021 where he remained pursuant to an involuntary treatment order until 15 February 2022.
52.On 14 December 2021 consultant forensic psychiatrist Dr Victoria Pascu, at the request of the accused's legal representatives, interviewed the accused over three hours at the Franklin (sic) Centre. Dr Pascu prepared a report dated 21 January 2022.[30] In that report Dr Pascu erroneously noted the accused's date of birth as 21.12.1983 rather than 31.12.1993.
53.On 21 December 2021 consultant forensic psychiatrist Dr Elizabeth Tate reported to the Perth Magistrates Court that the accused had a mental illness that required ongoing treatment. Dr Tate reported that 'at this stage there appears to be a correlation between Mr Zahidi's mental health condition and his alleged offending behaviour.' This report is attached to these facts as Annexure B.
54.On 15 January 2022 Dr Tate completed a second report for the Perth Magistrates Court noting that the accused 'has a severe mental illness for which he requires ongoing treatment.' This report is attached to these facts as Annexure C.
55.On 12 March 2022 Dr Pascu interviewed the accused again and subsequently prepared a 2nd report, dated 30 March 2022.[31]
56.On 4 April 2023 and 29 May 2023 Dr Adam Brett, Consultant Psychiatrist, interviewed the accused on behalf of the State and prepared a report dated 30 May 2023.[32] In that report Dr Brett also erroneously noted the accused's date of birth as 21.12.1983 rather than 31.12.1993.
57.Both Dr Pascu and Dr Brett have opined that, pursuant s 27 of the CRC, the accused was suffering a mental impairment at the time he attacked the victim in that this mental impairment deprived the accused of the capacity to control his actions.
Evidence of the accused
[30] Exhibit 6.
[31] Exhibit 7.
[32] Exhibit 5.
The accused gave evidence that the answers he gave to each of Dr Tate, Dr Pascu and Dr Brett, on the occasions he was interviewed by them, were true and correct to the best of his knowledge and understanding at the time that he gave those answers.[33]
Dr Tate
[33] ts 46.
Dr Tate provided two written reports, one dated 21 December[34] and one dated 15 January 2022.[35]
[34] Exhibit 1, Annexure B.
[35] Exhibit 2, Annexure C.
Dr Tate is the Consultant Forensic Psychiatrist at the Frankland Centre.
Dr Tate confirmed that the accused was an involuntary patient at the Frankland Centre in December 2021 but that he was a voluntary patient in January 2022 as he had demonstrated a good response to treatment and was gaining insight.
In both reports Dr Tate states that the accused has a mental illness for which he requires ongoing treatment. Dr Tate is of the opinion that there may be a correlation between the accused's mental health condition and his alleged offending behaviour.
Psychiatric evidence
Dr Brett
Dr Brett provided a written report dated 30 May 2023 which was received into evidence.[36] Dr Brett reviewed all relevant material and interviewed the accused on 4 April 2023 and 29 May 2023.[37]
[36] Exhibit 5.
[37] Exhibit 5 page 2.
Dr Brett gave oral testimony at trial.[38]
[38] ts 36 - 43.
Dr Brett made the following observations on the basis of the accused's account of the offence:
(1)although he was aware of the offence he had been charged with, he did not recall the offence;
(2)he became mentally unwell at the end of 2018, while he was in prison for the first time;
(3)his problems were not diagnosed or managed until after the offence;
(4)he experienced a head injury while in prison and needed to be transferred to Fiona Stanley Hospital;
(5)he previously believed that a microchip had been inserted into his brain at the time he went to Fiona Stanley Hospital;
(6)he had attended GPs due to concern about his mental health before the offence and asked for help for his voices and poor sleep - he was given sleeping tablets but only took one and then threw them away because he did not like feeling sedated as he had to keep himself alert to remain safe;
(7)in the lead up to the offence he was experiencing auditory hallucinations of a derogatory and command nature;
(8)he was becoming fearful and believed that his life was at risk;
(9)while he was living in the backpacker's accommodation, he was hearing delusions of reference from the television, the radio and his phone;
(10)he thought that he would be killed in his sleep - he said that this was related to being assaulted in prison and a family member being killed in a hotel in Denmark. He was concerned that prisoners were involved in that incident and were trying to find him and kill him;
(11)he described pervasive paranoia and incorporated people at the backpackers into this system - he believed that one man, who had been in prison, kept a knife on him and was concerned that he would be killed by him;
(12)he said that the victim was from Pakistan, but that he did not know him and did not recall what happened;
(13)he said he was not intoxicated at the time of the offence;
(14)the last thing he recalled before the offence was playing pool with an Asian man and an Australian man at the backpackers hostel and that he was suspicious of these men;
(15)his next memory is being outside the backpackers, having lost his phone and then being arrested by the police.
Dr Brett reviewed the CCTV footage of the incident and observed that the accused appears driven, chasing the victim and repeatedly stabbing him. After the stabbing, he places the knife in the basin and leaves. He then returns and appears to calmly clean the knife in the sink and then leave again.
Dr Brett reports that the accused's previous psychiatric history reveals that he suffered trauma at a young age witnessing people being killed by the Taliban. This made him fearful for his and his family's well-being. The accused travelled by boat to Australia and thought he would die. The accused has flashbacks of these experiences and describes increasing anxiety.
The accused told Dr Brett that he first heard voices in 2018 during his time in prison. These voices said derogatory things and gave the accused commands. The accused became very scared and could not sleep. He was prescribed sleeping medication.
The accused was initially in Roebourne Prison but was transferred to Perth and granted bail. He was released on Christmas Eve in 2018 and went to live with a friend in Kenwick, but he though his housemates were going to kill him. For this reason, he said he wanted to go to Melbourne so he went to the airport. This was a breach of his bail conditions and he was arrested and sent to prison for 3 months. During this time he was hearing voices, was scared and had nightmares. The accused's cell mate was murdered by 4 other prisoners in front of him. He was subsequently assaulted and this is when he was transferred to Fiona Stanley Hospital. He was returned to Hakea Prison before he was granted bail. He was later returned to prison because he did not attend court. While in prison, he was diagnosed with schizophrenia, post-traumatic stress disorder (PTSD) and major depressive disorder. He was placed on antipsychotic and antidepressant medication. When he was released, the accused did not have a home and was living on the streets. He described being scared and experiencing ongoing psychotic phenomena. He then moved into the backpackers.
While at the backpackers, the accused told Dr Brett that he was scared, could not sleep and believed that he would be killed. The accused described experiencing auditory hallucinations, paranoid delusions and delusions of reference. The accused believed the microchip was trying to make him commit suicide. Dr Brett expressed the opinion that the accused's symptoms were pervasive and he incorporated people in the vicinity into his delusional system. The accused felt at risk from everyone around him.
Following the incident, the accused was admitted to the Frankland Centre on 15 October 2021 until 17 February 2022. He reported experiencing auditory hallucinations, having a chip in his ear that controlled him, being thought disordered and lacking insight. He declined to take medication. He was assessed as having paranoid psychosis and started antipsychotic medication. He stated that he had no blood in his body.
In November 2021, he assaulted another patient.
He was transferred back to prison but returned to Frankland Centre from 27 April 2022 to 18 May 2022. He refused blood tests and oral medication. The accused said he had no blood in his body and kept requesting blood transfusions. Dr Brett describes his behaviour as hostile and unpredictable.
The accused told Dr Brett that he was having multiple auditory hallucinations, male and female, that were not command but were derogatory in nature. He said that he occasionally thought about the microchip in his head and that he was preoccupied about past traumas.
The accused was placed on antipsychotic mediation and his symptoms slowly resolved. He was returned to Hakea Prison. His discharge diagnoses were schizophrenia, PTSD and major depressive disorder.
The accused told Dr Brett that he had a head injury in 2019 and lost consciousness for 20 - 30 minutes. The accused told Dr Brett that he had been smoking marijuana 1 - 2 times a week before the offence.
Dr Brett recites the accused's personal and family history which is consistent with Agreed Facts.
Dr Brett expresses the opinion that the accused's problems appear to have begun following his first imprisonment and his development of psychosis. This would have been exacerbated by the PTSD he has been suffering from since a young age and increased his risk of developing psychosis.
Dr Brett stated that the accused's mental state deteriorated following his last release from prison, at which time he moved due to paranoid ideas and fears for his life. Dr Brett expressed the opinion that the accused did not get the diagnosis or treatment that he needed.
The formal psychiatric diagnosis made by Dr Brett is that the accused had a mental impairment at the time of the offence, that being that he was suffering from schizophrenia, PTSD and major depressive disorder and that he had severe symptoms which impact upon his functioning at the time of the offence.
Dr Brett states that he believes that the presentation of the accused's mental impairment relates to his previous trauma, his PTSD and the development of psychosis.
Dr Brett expresses the opinion that he does not believe that the accused's marijuana use was significant at the time of the offending and there was no evidence that he was intoxicated. In Dr Brett's view, s 28 of the Criminal Code is not relevant to this case.
Dr Brett expresses the view that there is no understandable motivation for the offending and the accused's behaviour appears to be consistent with a man who is suffering from psychosis and was fearful for his life.
Dr Brett expressed the opinion that, as a consequence of the mental impairment, the accused:
(1)was deprived of the capacity to control his actions - he was so psychotic that he was fearful for his life and felt compelled to act as he did; he had no control even when another man tried to pull him away;
(2)was deprived of the capacity to know that he ought not do the act - his untreated psychosis made him believe that his life was at risk from multiple people;
(3)he was experiencing command auditory hallucinations, making him more likely to act on false beliefs and he incorporated the victim into his delusional system;
(4)was not deprived of the capacity to know what he was doing at the time - he understood that he was attacking another man with a knife as he thought his life was at risk.
Dr Brett's opinion was that his view - that the accused's psychosis was causative of the offending behaviour - was strengthened given that there had been no episodes since the accused had been properly treated.[39]
[39] ts 40.
Dr Brett gave evidence at trial that he agreed with the assessments of Dr Tate.[40]
Dr Pascu
[40] ts 42.
Dr Pascu provided two written reports - one dated 21 January 2022[41] and one dated 30 March 2022[42]- which were received in evidence as part of the defence case. Dr Pascu received all relevant material and interviewed the accused for three hours on 14 December 2021 and for two hours on 12 March 2022.
[41] Exhibit 6.
[42] Exhibit 7.
Dr Pascu gave oral testimony at trial.[43]
[43] ts 49 - 55.
Dr Pascu recounts the accused's account of the offence, his past history, his drug and alcohol history, his family history, his forensic history and his personal history - all of which are not inconsistent with the information contained in the report of Dr Brett.
Dr Pascu stated that the accused's alleged offending occurred in the context of the accused suffering from a deteriorating mental state, with worsening acute psychotic symptoms, consistent with a major psychiatric illness, most likely schizophrenia, paranoid type, with likely onset sometime in 2018.
In Dr Pascu's opinion, the accused more likely than not was experiencing an acute paranoid psychotic episode with persecutory, grandiose delusions and auditory hallucinations which led to his offending behaviour.
Dr Pascu's opinion is that the accused:
(1)was not deprived of the capacity to know what he was doing;
(2)was more likely than not deprived of the capacity to know that he ought not to do the act and his behaviour appears to have been secondary to worsening of his mental state due to undiagnosed and untreated psychosis;
(3)was more likely than not deprived of his capacity to control his actions - Dr Pascu indicated in her oral evidence that she had changed her initial opinion expressed in her report in relation to this capacity (that being that the accused's capacity to control his actions was likely impaired but there was no evidence that he was deprived of it)[44] after viewing the CCTV footage of the incident.[45]
[44] Exhibit 7; page 13.
[45] ts 52.
Further, Dr Pascu also gave oral evidence that she did not have access to the transcript of the accused's evidence at the trial for the murder of Mr Eades which evidence he gave only a few weeks before this incident and in which he made references to his loss of blood. During the accused's interview with Dr Pascu, he referred to loss of blood and requested blood transfusions.[46] Dr Pascu said that, after reading the transcript of the accused's evidence at trial, in the context of his preoccupation with loss of blood during his interview with her, it has confirmed to her that, at the time the accused gave evidence, he was not well.[47]
[46] Exhibit 7; page 6.
[47] ts 52 - 53.
Dr Pascu states that there is no evidence to suggest that the accused's psychotic symptoms are secondary to illicit drugs and since being in custody and in hospital he has remained psychotic despite not using any illicit substances.
Dr Pascu gave evidence at trial that she agreed with the assessments of Dr Tate.[48]
[48] ts 51.
Conclusion
Findings as to the attempted killing of Mr Waheed
The accused's admissions are sufficient to prove beyond reasonable doubt that the accused attempted to kill Mr Waheed by stabbing him multiple times and causing him bodily injuries. I am satisfied that the body of evidence and Agreed Facts establishes those elements of the offence of attempted murder beyond reasonable doubt in any event.
Although the accused's admission that he intended to kill the accused is not relevant, in terms of proving that element of the offence, until I have determined the issue of whether the accused was of unsound mind at the relevant time, it is a proper admission to be made in light of the evidence in the form of the CCTV footage. The accused's intention does, however, have a bearing on the question of whether the accused was suffering from a mental impairment that deprived him of the capacity to know that he ought not to do the act and of the capacity to control his actions.
Findings as to the accused's mental impairment
In this case the State does not submit that I should make any findings contrary to the expert evidence of Dr Tate, Dr Brett and Dr Pascu.
There is no evidence or circumstances that contradict the expert evidence.
I am satisfied on the balance of probabilities that the accused was suffering from a mental impairment at the time of the incident. That mental impairment was schizophrenia, PTSD and major depressive disorder.
Findings as to unsoundness of mind
I now turn to consider whether the accused's mental impairment deprived him of the one of the capacities contained in s 27(1) of the Criminal Code.
I am satisfied on the balance of probabilities that the accused's state of mental impairment deprived him of the capacity to know that he ought not to do the act. Both Dr Brett and Dr Pascu expressed the opinion that it was more likely than not that the accused was deprived of the capacity to know that he ought not to do the act.
I am also satisfied that it was more likely than not that the accused was deprived of the capacity to control his actions at the time of the incident. Dr Brett and Dr Pascu (after reviewing the CCTV footage of the incident) expressed the opinion that it was more likely than not that the accused was deprived of the capacity to control his actions.
Conclusion
I am satisfied on the balance of probabilities that at the time the accused did the act of stabbing Mr Waheed with the knife and thereby causing bodily injuries, he was in a state of mental impairment namely schizophrenia, PTSD and major depressive disorder. As a consequence of being in that state of mental impairment, the accused was deprived of the capacity to know that he ought not do the act of stabbing Mr Waheed with the knife and was deprived of the capacity to control his actions in stabbing Mr Waheed. Therefore, the requirements of s 27 of the Criminal Code have been satisfied. The accused is not criminally responsible for his actions by reason of unsoundness of mind.
Verdict
I find the accused not guilty of the attempted murder of Muhammad Danial Waheed on account of unsoundness of mind.
Order consequent upon verdict
As a result of my finding, pursuant to s 149(1) of the CPA and s 21 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (in conjunction with sch 1 of that Act) I am required to, and do, make a custody order in respect of the accused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
17 JANUARY 2024
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