Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Murder - Accident - Insanity - Ability to know ought not to do act - Knowledge act unlawful - Hearsay evidence

Alford v Magee [1952] HCA 3; (1952) 85 CLR 437

Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291

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

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

R v Taiters [1996] QCA 232; (1996) 87 A Crim R 507

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

T (a child) v The Queen (1998) 20 WAR 130

Varney v The Queen (Unreported, WASCA, Library No 960463, 23 August 1996

Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

1 McLURE P: I agree with Wheeler JA that leave to appeal should be granted and the appeal allowed. These are my reasons for that conclusion.

2 The appellant was charged with wilfully murdering the deceased, Alana Dakin. He was charged in the alternative with her murder. After trial the appellant was acquitted of wilful murder and convicted of the alternative charge of murder.

3 The appellant and the deceased had been living together in the appellant's home at Girrawheen. Their seven-month relationship had been marked by alcohol problems and domestic violence. At some time during the early hours of 13 November 2007, the deceased sustained knife wounds to her right arm (wound 1) her neck (wound 2) and her chest near her armpit (wound 3). During an interview with police in the early morning of the same day the appellant admitted that he had killed the deceased. The unchallenged forensic evidence at trial was that wound 2 caused the deceased's death. The jury was directed in those terms.

4 The appellant had a history of mental health problems from August 1999. The two broad issues at trial were whether the State had negatived the defence of accident under s 23 of the Criminal Code (WA) (Code) and whether the appellant had established the defence of insanity under s 27 of the Code.

5 The appellant relies on four grounds of appeal. He contends the trial judge erred in her directions on accident, insanity and the use that could be made of out-of-court statements made by the appellant's treating psychiatrist and the deceased.

6 The appellant gave evidence at trial. The effect of his evidence in relation to wound 1 was that the knife he had been holding in his hand had penetrated the deceased's right arm during a confrontation and that this had occurred independently of his will (ts 410 - 415).

7 The appellant also gave evidence at trial as to how the fatal knife wound was made to the deceased's neck. It was to the following effect. After the deceased's arm was cut, the appellant put the knife down to apply a tourniquet to her arm. The deceased kept trying to get the knife, so the appellant turned away to pick up the knife, intending to put it away. When he turned back towards the deceased with the knife in his hand, she was right there. He had not realised she was in such close proximity. He gave the following evidence:

How did the knife come into contact with her neck?---I didn't know that it actually - I didn't know it had actually contacted her at that point and - because as I've pulled back I've gone, 'oh shit, I might have done it again', cut her, so I've just dropped the knife and she's actually laid down and

Stop. Stop, stop, stop. Was the cutting of her neck with the knife a deliberate act on your part?---No, it wasn't.

You're saying, what, that you were unaware that she was in such close proximity to you?---That's correct.

And that it was an accident?---That's true (ts 421 - 422).

8 The appellant's evidence at trial regarding wound 2 is not on all fours with the account he gave in his interview with police.

9 The appellant said wound 3 was intentional. The general thrust of his evidence was that it was apparent to him after wound 2 had been caused that the deceased was going to die so he decided to help her by hastening the process.

10 Section 23 of the Code (now, and as it was at the relevant time) comprises two limbs. The first limb relates to an act or omission which occurs independently of the exercise of a person's will and the second limb deals with an event which occurs by accident.

11 Before commencing her summing up the trial judge indicated to counsel that she did not intend to direct the jury to consider the first limb of s 23. Counsel for the prosecution and the defence both agreed with that course. The trial judge directed the jury to consider the second limb of s 23. She informed the jury that at law an event will have occurred by accident if it was unforeseen by the accused and unforeseeable by a reasonable person in the circumstances of the accused (ts 815). She identified the 'event' for the purpose of the second limb as the knife wound. She said:

[Y]ou need to consider whether you accept that the accused did not foresee that in the circumstances that applied there the deceased would suffer a serious knife wound or a knife wound.

It's not a matter of foreseeing the precise details or the degree of injury, such as almost transecting the jugular vein. It's a matter of foreseeing the probability of some injury being received in the manner in which the known injury was in fact received; that is, basically a knife wound occurred. You must therefore distinguish between what can be foreseen as really likely or probable, and what is merely possible, fanciful or conjectural.

...

If you look at the issue of whether it was unforeseen - that's subjective - and then you turn and look at whether it was objectively unforeseeable and that is something that you - where you use the view of a reasonable person in those circumstances, not somebody who may suffer a mental illness or anything like that, just whether it was reasonably foreseeable in those circumstances.

...

[I]f you look at the set of circumstances and you think to yourself, 'well, objectively it was just foreseeable that something of this nature was going to happen,' then you will be happy, I think, to conclude that the state has negatived the fact that it was unforeseen; that is, objectively - sorry, unforeseeable by a reasonable person (ts 816).

12 The State correctly conceded that the trial judge should have directed the jury on the first not the second limb of accident and had wrongly identified the 'event' for the purposes of the second limb. It was common cause in the appeal that the 'act' for the purposes of the first limb of s 23 was the knife being inserted into the neck of the deceased (that is, the infliction of the wound) and the 'event' for the purpose of the second limb was the death of the deceased. The State accepted that the appeal on this ground must be allowed unless the error occasioned no substantial miscarriage of justice.

13 The State contended there was no substantial miscarriage, relying on three matters. First, the trial judge directed the jury that to negative the defence of accident the State had to prove beyond reasonable doubt that the appellant did not foresee the infliction of the fatal wound at the time the deceased sustained it and that it was not objectively reasonably foreseeable. The verdict was said to show that the jury was satisfied of both those things. Secondly, as the verdict showed the jury was satisfied beyond reasonable doubt that the appellant intended to do grievous bodily harm to the deceased, the jury must have been satisfied the infliction of the wound to the neck was willed (ie deliberate). Thirdly, the evidence as a whole established that wound 2 was deliberately inflicted.

14 I accept that the trial judge's direction may have been understood as requiring the State to prove both the subjective and objective requirements of foreseeability. Such a direction would be wrong. The subjective and objective requirements are cumulative; both have to exist for an event to have occurred by accident. Thus, the State could negative the defence of accident (on the case as directed) if it proved beyond reasonable doubt either that the appellant foresaw a knife wound or that a knife wound was reasonably foreseeable: R v Taiters [1996] QCA 232; (1996) 87 A Crim R 507, 509.

15 Even if the jury is taken as having been satisfied of both the subjective and objective requirements, the appellant is disadvantaged by the error. Foreseeability relates to the likelihood of the occurrence of an event of the type in issue (identified as a knife wound). That is significantly different from the State's true task which was to prove that the infliction of the actual knife wound was a willed (voluntary) act of the appellant.

16 Further, the trial judge's direction on accident had the potential to mislead and confuse the jury in its consideration of the requirement that the appellant intended to cause grievous bodily harm. If a knife wound was foreseen by the appellant or was reasonably foreseeable, the inference of intention to cause grievous bodily harm may have been drawn without considering whether the act of inflicting the wound to the neck was willed.

17 Finally, the State relies on the expert forensic evidence of Dr Margolius and the appellant's video record of interview with police to contend that the evidence compels a finding beyond reasonable doubt that the appellant deliberately inflicted wound 2. Upon reading the transcript of evidence of Dr Margolius I am unable to make any reliable assessment as to whether the relevant evidence relates to wound 2 or wound 3 which appear to be physically connected. Further, the inconsistencies between the appellant's evidence at trial and his video record of interview are largely attributable to omissions in the account given when he was (on one view of the evidence) in a psychotic state. Applying the test in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, it is not possible from a reading of the transcript and the other material in the appeal books for this court to be satisfied that the error occasioned no substantial miscarriage of justice. I would uphold ground 1.

18 The appellant identifies three ways in which the trial judge allegedly erred in her direction on insanity. These are set out in the reasons of Wheeler JA and not repeated here.

19 Section 27 (as it was at the material time) relevantly provided:

A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.

20 The term 'mental impairment' is defined in s 1 of the Code to mean intellectual disability, mental illness, brain damage or senility. All the medical experts (Dr Schineanu and Dr Morton called by the appellant and Dr Brett called by the State) agreed that the appellant was suffering from a mental impairment for the purposes of s 27 at the time the deceased was killed.

21 The only issue was whether, by reason of that mental impairment, the appellant was deprived of the capacity to know that he ought not to do the relevant act. As Dixon J observed in R v Porter [1933] HCA 1; (1933) 55 CLR 182, 189, it is very difficult to be quite clear as to what is meant by that incapacity. It is of little assistance to explain the law on the subject to the jury in general terms and leave it to them to apply the law to the facts. A trial judge must tell the jury about so much of the law as they need to know to decide the real issues in a particular case: Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466. That did not happen in this case.

22 The trial judge's direction on insanity is set out in the reasons of Wheeler JA. The original direction given to the jury on the issue of whether the appellant was deprived of the capacity to know that he ought not to do the relevant act was as follows:

[T]he capacity to know - that simply means in the sense of appreciate or understand - that he appreciated or understood that he ought not to do the act, and the particular act of course was the stabbing of Ms Dakin (ts 814).

23 In order to identify the real issues, it is necessary to refer to the expert evidence. All the experts agreed that the most reliable evidence of the appellant's state of mind at the relevant time (the time of the killing) was his conduct in the video record of interview with police in the early hours of the morning of the killing. Both Dr Schineanu and Dr Morton were of the opinion that at the time of the killing the appellant was suffering from schizophrenia and was in a psychotic state such that the appellant was reasoning irrationally and illogically to such an extent that the appellant did not have the capacity to know that he ought not to kill the deceased. In particular, because of his irrational reasoning the appellant believed it was morally right to kill the deceased even though he knew it was against the law to do so. There was also evidence from the appellant in the video record of interview that he was aware of the penalty (gaol) and considered in passing the option of attempting to cover up what he had done. In Dr Brett's opinion the appellant suffered a schizotypal disorder (a mental impairment short of schizophrenia) and was not in a psychotic state at the time of the killing. Dr Brett concluded the appellant had the capacity to know he ought not to kill the deceased. He regarded the background of domestic violence as the explanation for the appellant's conduct.

24 The jury identified what they saw as the real issue. They asked the following question:

Can you confirm the capacity to know you ought not to do the act is in a legal sense (knowledge it is against the law) and is not dependent on the belief the law is morally right (ts 856).

25 The trial judge did not identify and respond to the substance of the question. She said:

I think the best way to respond to that is to say this: it's not a question of knowing whether the act was legally wrong or morally wrong, or legally right or morally right. The question is whether the accused was deprived of the capacity to know that according to the standards of our society it is wrong to kill. I think that's the simplest way of explaining it to you. It's not a question of whether it's legally wrong or right or morally wrong or right. It's simply whether he was deprived of the capacity to know that according to the standards of our society it is wrong to kill. I think that's probably as much as I can say to you about the matter (ts 856).

26 Implicit in the jury's question is their understanding that the capacity to know you ought not to do the relevant act is established if the person knows the act is unlawful and that is so even if the person believes the law is morally wrong. Their understanding was wrong. The jury ought to have been directed that a person can lack the relevant capacity even if they know the act is unlawful. The jury also needed to be directed on why and how that can be so.

27 The trial judge failed to identify the real issues, failed to direct the jury on all the necessary legal principles required for their resolution and provided an explanation that can only have created confusion. In the case of the serious offence of murder, a jury is unlikely to see any material distinction between legally wrong, morally wrong and wrong according to the standards of society without further explanation.

28 The clearest explanation of the principles as they apply to the real issues in this case were identified by Dixon J in Porter (189). This case contains Dixon J's charge to a jury upon a plea of temporary insanity at common law as a defence to a charge of murder. To establish a defence of insanity at common law, the accused had to be labouring under such a disease, disorder or disturbance of mind as not to know (inter alia) that the act he was doing was wrong. Dixon J said:

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 (189 - 190).

29 In Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, the High Court considered the correctness of an insanity direction that 'the accused must satisfy [the jury] upon a balance of probabilities that he suffered from a disease, disorder or disturbance of the mind of such a character as to prevent him from ... knowing what he did was wrong, that is against the law' (364). The High Court held that the direction contained an error. There is no requirement that the accused know the act is wrong in the sense of contrary to law; it is knowing right from wrong, good from evil, not legality from illegality. However, the High Court observed (370 - 371) that in cases of murder the difference between capacity to understand the wrongness and the legality of the act often might not be of much significance, but in some cases it might be decisive. The court said:

The truth perhaps is that, from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong ... he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law (375).

30 The High Court in Stapleton elsewhere (367) identified the test as being whether at the time of the commission of the act the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act.

31 There is no suggestion of any material distinction between the common law and s 27 on this point. Thus the real issue for the jury in this case was whether the appellant had established on the balance of probabilities that at the time of the killing his mental impairment resulted in a complete incapacity to reason as to what is right or wrong according to ordinary standards. The term 'know' means 'understand', 'appreciate' or 'comprehend'. An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from understanding that he (or she) ought not do the act. Knowledge (short of understanding) that to kill is punishable by law does not prevent such a finding. Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct. Whether an act is right or wrong is determined by reference to an objective standard. The question is whether the appellant had a complete incapacity to reason as to what was, by that objective standard, right or wrong. In this case the appellant's subjective belief was relied upon by the experts to support the conclusion that he was in a psychotic state that prevented rational reasoning on right or wrong.

32 It follows I would uphold the appellant's claim that the trial judge erred in failing to direct the jury that the defence of insanity could succeed even if the appellant knew what he was doing was contrary to law. She also erred in failing to explain why that is so, which is the essence of the second error.

33 The third error alleged by the appellant is the trial judge's failure to warn the jury that it was dangerous to test the appellant's knowledge by the standards appropriate in judging the conduct of a sane man (the sane standards warning). As noted by the State, this warning is ordinarily given when the expert evidence is all to the effect that the accused was insane: Hone v The State of Western Australia [2007] WASCA 283 and the cases cited therein. The need to give the warning has arisen because of the frequency with which finders of fact have rejected a defence of insanity in the face of unanimous expert evidence to the contrary. It appears that fact finders experience difficulty in applying the law to the

facts. That may in turn result from deficiencies in the judicial explanation or understanding of the relevant legal principles.

34 The sane standards warning is closely related to the explanation of why the defence of insanity can succeed even if the appellant knew what he was doing was contrary to law. Matters which would connote understanding by a person of sound mind (as for example, knowledge that the act of killing was punishable by law) may not do so if the person is incapable of reasoning rationally because of mental impairment. There should be no necessity for any additional warning if the trial judge has effectively explained why the defence of insanity can succeed even if the accused knew the act was punishable by law.

36 The errors in the trial judge's directions on accident, insanity and the use that could be made of the out-of-court statements made by the deceased require that the appeal be allowed. I would grant leave to appeal on grounds 1 to 4, allow the appeal, quash the appellant's conviction and order a retrial.

38 WHEELER JA: This is an application for leave to appeal against conviction, which Miller JA ordered on 19 June 2009 be heard together with the appeal, and an appeal against sentence. In addition, there is an application for leave to adduce further evidence to be referred to at the hearing of the appeal. In my view, the appeal should be allowed and a retrial ordered. It is necessary to deal only with some of the grounds of appeal, it being unlikely that the questions raised by others will emerge in the same way at any retrial. It is also unnecessary to deal with the appeal against sentence. Nor is it necessary to deal with the application for leave to adduce further evidence.

39 On 12 December 2008, the appellant was convicted, after trial, of murder. The facts giving rise to that offence were briefly as follows.

40 On the morning of Tuesday, 13 November 2007, the appellant and the deceased, Ms Dakin had been involved in a relationship for approximately seven months. Over that period, police had been involved on at least five occasions, including being involved in an incident in which the appellant broke Ms Dakin's hand. Ms Dakin, an alcoholic, was not inclined to co-operate with police and repeatedly refused to provide a statement on these occasions. Despite the fact that she was the only one to suffer any injuries, it appears that the appellant convinced police that he was, in fact, the victim of her aggression.

41 On the morning of 13 November 2007, the appellant and Ms Dakin had consumed a large quantity of alcohol. An argument developed, and, at some point, the appellant cut the telephone wires in the kitchen. His expressed intention in doing so was to prevent Ms Dakin from making expensive international telephone calls. Using a wooden-handled 12.5 cm kitchen knife, the appellant cut Ms Dakin, causing three wounds. There was a wound to Ms Dakin's forearm which measured 8 cm in length and cut through the muscle, subcutaneous tissue and fat and completely transected the superficial veins of the inner aspect of the arm. At the time, Ms Dakin's other arm was broken and was in a plaster cast. The appellant apparently applied a tourniquet to stem the flow of blood from this wound.

42 Ms Dakin then, the appellant said, verbally abused him. He then cut her upper chest and neck, causing two wounds, one being 32 cm in length which severed her jugular vein, the other being 12 cm in length. The appellant then pressed on Ms Dakin's chest, accelerating her blood loss and therefore her death.

43 The appellant then had a shower and changed his clothes. He drove to his parents house and told his mother that Ms Dakin had died. His mother drove to the appellant's house, located Ms Dakin's body, and telephoned police. Police arrested the appellant at his parents' house. He participated in a video-recorded interview, during which he admitted having killed Ms Dakin.

44 There were two issues in the trial which give rise to the grounds of appeal. The first was that the appellant gave evidence about how the knife wounds were made to the deceased's neck. He had had the knife at an earlier stage because, he said, he had concerns about her behaviour after he had cut the telephone line which, in effect, made him consider that he might need the knife to defend himself. After her arm was cut, he put the knife down in order to apply the tourniquet. However, the deceased kept trying to get the knife, so he turned away to pick it up, intending to put it away. However, when he turned back towards her with the knife in his hand, she was closer than he had anticipated and the knife accidently penetrated her neck. That squarely raised the issue of accident. The subsequent wound he admitted causing deliberately, but it is fair to say that his account of how he did so lacked clarity.

45 In addition, there was evidence raising the defence of insanity. There were two psychiatrists, Dr Schineanu and Dr Morton who gave evidence on behalf of the appellant, and a psychiatrist, Dr Brett was called on behalf of the State. There was evidence which suggested that the appellant understood the likely legal consequences of his actions, and there was also evidence that suggested that it was his view that, in the particular circumstances of this incident, his behaviour, or some of it, was morally the right thing to do in the interests of the deceased.

46 This is one of the grounds with which it is not necessary to deal. The respondent accepts that her Honour erred (encouraged, it would appear, by both counsel) in her classification of the infliction of the fatal wound as an "event" for the purpose of the application of s 23 of the Criminal Code as it was at the time of the killing. The result of that concession is that the appeal must be allowed unless the error occasioned no substantial miscarriage of justice. It is not, however, necessary to undertake that analysis, because the appeal should, in my view, be allowed on other grounds. The point having been raised and the concession made, no doubt at any retrial of the appellant the misapplication of the concept of accident which occurred in this case will not occur again.

47 This ground on its own, in my view, would necessarily lead to the appeal being allowed. It reads as follows:

1. The learned trial Judge erred in law by failing to adequately direct the jury in relation to the defence of insanity in three respects:

1. Firstly, by failing to adequately direct the jury that the appellant could be found not guilty by reason of insanity, even if the appellant knew that what he was doing was contrary to law. 2. Secondly, by failing to direct the jury that, when considering whether the appellant was deprived of the capacity to know he ought not do the act, the issue was whether the appellant 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.

1. Thirdly, by failing to warn the jury that it is dangerous to use the standards appropriate in judging the conduct of a rational person to assess the capacity of a mentally ill person to know he ought not do an act.

48 As I have noted, during the course of the appellant's evidence, in cross-examination, he agreed that he had adverted to the legal consequences of his actions. In response to the question, "to kill someone is wrong in law, isn't it?", he replied, "Yes, that's correct".

49 It appears from the appellant's evidence that he accepted that he had inflicted the last of the wounds, and pressed down on the deceased's body, in order to hasten her death. His evidence may be understood as indicating that he had done so because he considered that she would, in any event, have died from loss of blood as a result of the earlier wounds, and he thought it kinder to hasten her death. However, in cross-examination, he seemed to retreat from that position and to suggest that he had only contemplated hastening her death, leaving unclear what actions he had performed, and why. He also seemed to suggest in cross-examination that it was the deceased's desire that he kill her. For example, when counsel for the State was putting to the appellant portions of his interview with police, the following exchange occurred:

The third one was a calculation of a decision that I'm going to kill you, because she was tempting me to kill her. She wanted me to kill her?---Yes, that's true.

It was like it has just been brewing domestic violence?---Yeah, that's a true statement.

How was she tempting you to kill her? Was she talking through the blood? The jugular vein has been slashed at that stage?---It's a spiritual term.

I see. It has just been brewing domestic violence. What was spiritual about that, Mr Evans?---Life.

50 He had earlier described how he felt the deceased's spirit leave her body when she died, and how he understood her spirit to be happy that she had left behind various difficulties which she had experienced in life.

51 Her Honour directed the jury at some length, as one would expect, about the question of insanity. Relevantly to the present ground, she said the following:

So the issue is not, firstly, what type of mental illness they have. That may be relevant to the sort of symptoms you might expect from it and it may explain some behaviour but in terms of the law it simply has to be established that there was a mental impairment and that as a result of that mental impairment the person lacked one of the three capacities.

You are not excused from your criminal conduct simply because you suffer from a mental illness and that would obviously make sense because if you are perfectly capable of understanding what you are doing and you can control yourself and all those sorts of things there is no reason why you should have a licence to go around hurting people or committing offences. So that's why the law requires not simply that you be satisfied that the accused suffers from a mental illness but also that he lacked at least one of the capacities.

I will read them to you when I am referring you to section 27 of the Criminal Code. It says:

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 a capacity to understand what he is doing or a capacity to control his actions or of capacity to know that he ought not to do the act or make the omission.

Those last three things are the three capacities that we refer to and it is only necessary to establish that he lacked one of them. The accused isn't obliged to establish that he lacks all of them or a majority of them, just simply one. So as I said, there are two parts to being satisfied that the accused is not guilty by reason of unsoundness of mind: firstly, that he is suffering from a mental impairment. Secondly, that he was deprived, at the time that the act which caused the death, of one of the three capacities; that is, the capacity to understand what he is doing, the capacity to control his actions, the capacity to know that he ought not to do the act or make the omission.

52 A little later, she added that " ... the capacity to know - that simply means in the sense of appreciate or understand - that he appreciated or understood that he ought not to do the act".

53 In the context of a case in which some reliance had been placed in cross-examination upon the appellant's apparent understanding that killing was unlawful, it may have been desirable for her Honour directly to have addressed the relevance of that issue. Whether the direction as it stands was adequate would have been a question of some difficulty, had the jury themselves not specifically raised the relevance of the appellant's knowledge that killing was unlawful, in a question which they asked.

Can you confirm the capacity to know you ought not to do the act is in a legal sense (knowledge it is against the law) and is not dependent on the belief the law is morally right.

55 The question suggested that the jury had understood her Honour as directing that the relevant capacity was a capacity to know that the act was unlawful, and was seeking confirmation of the correctness of this view.

56 The correct answer to this question was, "No". It would have been necessary at the least to make it unequivocally clear to the jury that they were not concerned with the appellant's understanding of whether the act was unlawful, but only with his ability to understand that it was wrong according to ordinary standards of morality. Her Honour had originally proposed to redirect the jury effectively in the terms used by Dixon J in R v Porter [1933] HCA 1; (1933) 55 CLR 182 at 189 - 190. That direction reads:

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 resaons 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.

57 However, in discussion with counsel, her Honour seems to have been dissuaded from that course. Ultimately, her Honour's direction was the following:

I think the best way to respond to that is to say this: it's not a question of knowing whether the act was legally wrong or morally wrong, or legally right or morally right. The question is whether the accused was deprived of the capacity to know that according to the standards of our society it is wrong to kill. I think that's the simplest way of explaining it to you. It's not a question of whether it's legally wrong or right or morally wrong or right. It's simply whether he was deprived of the capacity to know that according to the standards of our society it is wrong to kill. I think that's probably as much as I can say to you about the matter. As I hope we have now dealt with the two questions, would you please retire again?

58 The difficulty with that direction is, I think, twofold. First, it does not unequivocally answer the question. The jurors might be left with the view that because the "standards of our society" are, in part, formed by, or are generally reflected in the law, an understanding of unlawfulness would be one type of understanding which negated legal insanity. That is, the jurors may have considered that her Honour was restating the relevant capacity more broadly, but in a way which left it open for a person to have the relevant capacity if the person understood either that the act was contrary to law or that it was generally considered to be morally wrong. The second difficulty is that it appears that the jury had some difficulty in understanding what was involved in the ability to "know" that a person ought not to do an act. It was therefore important that they be made to understand that they should consider the effect of the appellant's mental disorder not simply upon his knowledge in some abstract sense, but upon his ability to reason.

59 The authority most directly on point in this context is Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358. In that case, having regard to the state of the evidence, it seems unlikely that there would have been any practical difference in result whether the jury had been directed in terms of a capacity to understand that an act was wrong according to ordinary standards, or to understand that it was contrary to law. It appears that that was the reason why the court would have "hesitated" to order a new trial simply because the jury had been directed that the test of insanity was whether the accused knew that firing a shot at another person was against the law (at 375). However, the court made it clear that such a direction was erroneous (at 367 - 368).

60 It is not easy to summarise the detailed discussion of authority in Stapleton in a way which is capable of being fashioned into an appropriate direction in every case of insanity. However, the principles extracted from that discussion appear to focus upon two issues. First, the ability to know that one "ought not" to do an act or make an omission is a capacity to know that one "ought not" to do it according to ordinary standards of right and wrong, rather than knowledge that the act is unlawful. As the High Court observed, from a practical point of view it often may not matter much, because in relation to serious offences the two ideas "are not easily separable" (at 375). However, in cases where, as here, the distinction may arise, it should be made. The second principle is that the capacity which must be found to be lacking is not merely a capacity to appreciate, in some abstract sense, that others would view the act as wrong. Rather, it is a capacity of the particular accused either to discern the difference between moral good and evil, or to "think rationally" of the reasons which would lead ordinary people to consider the act to be right or wrong.

61 In my view, the question in this case made it imperative that her Honour explain to the jury the two principles which I have described above. For completeness, I would add that it was not, in my view, necessary for her Honour to adopt the formula contended for by ground 2(b) of the grounds of appeal. Although a direction as to whether the accused was capable of reasoning "with some moderate degree of calmness" or, as it was put in Porter, with "a moderate degree of sense and composure" is sanctioned by authority, it may in some cases, in my view, run a risk of confusing the jury. That is because these offences generally take place in circumstances in which the accused is, plainly, not composed and not calm. The relevant issue is not whether the accused is, in fact, at the particular time, reasoning calmly and rationally. The question is whether the accused's mental condition is such that the accused is incapable of thinking in a rational way.

62 In my view, ground 2(a) is made out. So far as ground 2(b) is concerned, although I would not accept in terms the contention it contains, it seems to me that it is directed at what I have described as the second principle to emerge from Stapleton's case - that is, the need to ensure that the jury understands that they must consider the effect of the mental disease or disorder on the appellant's capacity for rational thought. To that extent, I consider it is made out.

63 So far as ground 2(c) is concerned, the authorities cited in support of it are cases in which all of the medical or psychiatric evidence was to the effect that the accused was insane, and the only possible basis for rejecting that evidence was evidence which might suggest an ability to plan, or the existence of a sane motive for killing. The need to give a warning of the kind referred to in ground 2(c) may not be confined to such cases, but it is not necessary that it be given in every case. Much will depend upon the particular course of the evidence.

64 In this case, there was some cross-examination which was directed to matters such as the appellant having told police that he was "deciding" immediately after the killing whether to cover it up or to admit to it, which apparently indicated some ability to plan and to behave in an apparently rational way. However, the jury had also heard the evidence of Dr Schineanu to the effect that it was completely wrong to try to understand the abnormal mind by applying a normal way of thinking, and that a psychotic person could still have some degree of mental functioning, but that the critical issue was whether the person's reasoning was rational. Dr Morton's evidence was similar. It did not require a warning from her Honour to enable the jury to appreciate something which had already been explained to them in the expert evidence.

65 The submissions in support of ground 3 include the following:

1. During the cross-examination of both Dr Schineanu and Dr Morton, the State Prosecutor elicited evidence of the fact that the appellant had been seen by a treating psychiatrist (a Dr Jordan) during a period of time from 26 March to 8 May 2008 and that the treating psychiatrist had reached a different diagnosis to the one they had reached.
2. This was done with a view to demonstrating that the diagnosis reached by Dr Schineanu and Dr Morton was not credible and should not be accepted. Further, the cross-examination sought to establish a basis from which to attack the credibility of their opinions generally.
3. This is confirmed by the fact that in the evidence in chief of Dr Brett the State Prosecutor asked the following questions:

That is a diagnosis that is consistent with the one of the treating psychiatrist at the Frankland Centre?---That's correct, yes.

...

How is it then that Dr Schineanu and Dr Morton can come to a different conclusion than the treating psychiatrist?---[Dr Brett's answer indicated that he did not think the diagnosis was particularly relevant] ...

...

But nevertheless is there anything in [Dr Jordan's discharge summary] that shows he is deprived at the material time of any of the capacities?--- No, there's not.

1. In his last question to Dr Brett, the State prosecutor read from Dr Brett's report, 'However, I would disagree with the diagnosis made by Dr Morton and Dr Schineanu and would agree with that of Dr Jordan ...
2. In cross-examination, Dr Brett was asked whether, in view of what he knew of the appellant, and the symptoms he had displayed over a nine year period, he thought there were some symptoms which fulfilled the criteria for schizophrenia. He replied:

Mr Evans underwent the longest hospital admission he's had in the most secure setting in Western Australia. I'm confident in their [i.e. Dr Jordan and his team] diagnosis of schizotypal disorder and it's consistent with the findings I found on my examinations with him.

1. However, the treating psychiatrist was not called to give evidence.
2. The evidence of a diagnosis that may have been made by the treating psychiatrist out of court was hearsay and inadmissible to establish the truth of the assertion that he had reached a particular diagnosis. Further, it could not be relied upon as an expert opinion as there was no evidence that exposed the reasoning process that may have been employed in arriving at such diagnosis.

66 The proposition in the last paragraph quoted above is correct. However, it does not follow that the admission of that evidence, or the way it was treated by her Honour, necessarily constitutes appellable error. The diagnosis of Dr Jordan was first led in evidence by senior counsel for the appellant during his evidence-in-chief of the defence psychiatrist, Dr Schineanu. In evidence elicited by counsel for the appellant Dr Schineanu discussed in some detail the "previous history and assessment done by the treating team at Frankland Centre" (including Dr Jordan), pointing out features of that assessment which, in Dr Schineanu's view, were consistent with (or at least not inconsistent with) the conclusions reached by Dr Schineanu.

67 Similarly, in evidence-in-chief of Dr Morton, he was taken to the assessment at the Frankland Centre, which included Dr Jordan's assessment. Dr Morton plainly relied upon some of the symptoms recorded in that assessment, in arriving at his own conclusion. So far as Dr Jordan's diagnosis was concerned, it appears that Dr Morton, in part, relied upon it as being consistent with (or at least not inconsistent with) his own assessment. Dr Morton said:

[T]he diagnosis was that he was psychotic and I would emphasise that. Because he was started on antipsychotic treatment - now, doctors don't give people antipsychotics without good reason.

68 In relation to the course adopted by counsel for the appellant at trial, senior counsel for the appellant at the appeal suggested that the references to Dr Jordan's opinion in the evidence-in-chief of the defence experts, and the references to that opinion in the cross-examination by the appellant's counsel at trial of Dr Brett, were only for the purposes of rebuttal. In effect, the submission was that having, for some reason which was not clear, failed to object to the admissibility, as truth of its contents, of the evidence of Dr Jordan, the course adopted by the appellant's trial counsel was one which merely sought to minimise damage which would otherwise be caused to the appellant's case by the admission of evidence of that diagnosis. It is possible that the appellant's counsel was merely seeking to make the best of what he (wrongly) perceived to be admissible evidence. However, it appears to me that it is also possible that the appellant's trial counsel perceived a forensic advantage in the admission of the opinion of Dr Jordan as evidence of the truth of its contents. It appears that the defence experts regarded it, in at least some respects, as being favourable to the view which they sought to advance.

69 It is not an error for a trial judge to fail to exclude evidence which is not the subject of an objection: Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291, although in come cases, the admission of inadmissible evidence may nevertheless result in a miscarriage of justice: see Varney v The Queen (Unreported, WASCA, Library No 960463, 23 August 1996). It is not suggested that her Honour was in error in permitting evidence of Dr Jordan's opinion to be adduced, but it is said that the error lay in failing to direct that evidence of that diagnosis was not evidence of the truth of its contents, but was, rather, only admitted so that the jury could understand the reasoning processes of those psychiatrists who did give evidence. As a matter of law, that appears to me to be correct.

70 However, having regard to the way in which the defence case was conducted, a direction of the kind contended for was one which would have undermined those portions of the evidence of Drs Schineanu and Morton to which I have referred, as well as the evidence of Dr Brett. No direction of that kind was sought by counsel for the appellant at trial. It might arguably, therefore, be appropriate to find that failure to give such a direction in the particular circumstances of this case occasioned no substantial miscarriage of justice, being consistent, as it was, with the way in which the defence case was conducted. The difficulty in the way of applying the proviso in those circumstances, however, is twofold: first, it seems reasonably clear that treating evidence of Dr Jordan's opinion as evidence of the truth of its contents, was, on balance, more unfavourable to the appellant than otherwise; and the other errors in this trial which were either encouraged or acquiesced in by counsel for the appellant at trial (being the subject of grounds 1, 2 and 4) might suggest that it is inappropriate in the particular circumstances of this case to place weight upon what would otherwise appear to have been conscious forensic choices.

71 It is not finally necessary to determine these issues. The legal principles governing the admissibility of evidence of Dr Jordan's opinion, the purpose for which it was admissible, and the direction which should have been given, appear now to be common ground, and that common ground will, no doubt, be reflected appropriately in any future retrial.

72 This ground concerns evidence adduced from a Ms Maton of conversations which she had had with the deceased. In broad terms, these consisted of the deceased recounting to Ms Maton numerous acts of violence perpetrated upon her by the appellant. The evidence was elicited in graphic and striking detail, and did have the potential to be significantly prejudicial to the appellant.

73 Trial counsel for the appellant queried the admissibility of the evidence, but, upon being advised by her Honour that she assumed that it was on the basis that it was "relationship evidence", trial counsel appeared to accept that characterisation. He took the matter no further.

74 Not only was the evidence admitted, however, but her Honour, in effect, invited the jury to treat the account given by Ms Maton as evidence of the truth of the matters recounted to her. That direction, although unchallenged by counsel for the appellant at trial, was plainly erroneous, and the respondent accepts that Ms Maton's evidence was not admissible to prove the truth of what she said the deceased had told her.

75 The basis upon which evidence of this kind is admissible was discussed in T (a child) v The Queen (1998) 20 WAR 130. In that case, in discussing the principle enunciated by the High Court in Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, Ipp J said (at 18 - 19):

As I understand what their Honours were saying, a distinction must be drawn between what may be described as a direct assertion as to a person's state of mind, and a statement (i.e. conduct) from which an inference may be drawn. Thus, evidence that the day before the deceased was killed she said to another witness, in the absence of the appellant, 'I intend to leave Troy', would be hearsay evidence of her intention, and could not be relied on testimonially for that purpose. If this evidence were tendered to prove that the deceased in fact intended to leave the appellant, it would be infected with every difficulty attendant on hearsay evidence in general, and would not be admisssible. On the other hand, those words contain an implied assertion that there were difficulties in her relationship with the appellant. That inference does not depend on the contents of the statement by the deceased being true, but arises from her conduct in speaking the words in question, and the evidence may be admissible on this basis. As the majority in Walton pointed out, the admission of evidence of that kind might involve a reliance, to some extent, upon the truth of an assertion (namely, that the deceased intended to leave the appellant) and 'to that extent an element of hearsay may be said to be present'. But that element of hearsay need not necessarily preclude that evidence 'being treated as conduct from which an inference can be drawn rather than as an assertion which is put forward to prove the truth of the facts asserted'. Thus that evidence might be relied on as conduct proving that there are difficulties in the relationship (but not that the deceased intended to leave the appellant). Its admissibility, however, would depend on the degree to which the evidence would be relevant, and the extent of the prejudice to the appellant in admitting the evidence with its element of hearsay.

Pidgeon and White JJ in that case took a different view of the admissibility of particular items of evidence, but I understand their Honours to have agreed, broadly, with the principles as explained by Ipp J. Those principles were also held to justify the admission of evidence of statements made by the deceased that T had behaved violently towards her.

76 Ipp J noted in T (a child) that when determining the admissibility of this kind of testimony, the prejudice arising out of the hearsay element will have to be balanced against the degree to which such evidence would otherwise be relevant. Trial counsel for the appellant in this case did not ask her Honour to undertake that exercise. Nor did counsel in the present appeal suggest that there were particular items of Ms Maton's evidence which should have been excluded on that basis. Rather, the complaint in the ground is simply that her Honour misled the jury concerning the purpose for which they could use that evidence. As I have noted, the respondent concedes that her Honour erred in that respect, and the concession appears to me to be plainly correct.

77 The respondent seeks to rely upon the proviso in relation to this ground on the basis that the appellant's conduct as recounted by the deceased to Ms Maton was little different from the appellant's own account of some of his actions towards the deceased. However, the account given by Ms Maton travelled beyond the matters described by the appellant. It was, as I have noted, given in graphic detail. In some respects, the account allegedly given by the deceased differed from the account of the same events described by the appellant, and the account given by the deceased to Ms Maton portrayed the appellant as being more violent than he claimed and, if accepted as evidence of its truth, could lead the jury to conclude that the appellant was a not a reliable witness. By way of example, there was evidence from the appellant that he had killed the deceased's cat. However, he had done so, he said, because she had left the cat with him, he had telephoned the Cat Haven who told him that they would put the cat down in any event, and he killed the cat himself (being a "farm boy") as the most humane way of achieving the same result. However, Ms Maton's evidence was that the deceased had told her that the appellant had cut her kitten's throat because the deceased was going to leave him.

78 In the particular circumstances of this case, senior counsel for the appellant at the appeal points out that Dr Brett, the State's expert psychiatrist, relied heavily in reaching his conclusions upon what he considered to be a history of escalating domestic violence. Accepting Ms Maton's account of the deceased's assertions as true may have enabled the jury, therefore, more readily to accept the views expressed by Dr Brett.

79 The nature of the relationship between the appellant and the deceased was of importance to the defence of accident, and was of importance to the opinions of the various psychiatrists. In contrast to the other evidence, Ms Maton's evidence suggested a picture of domestic violence which was largely all one way - that is, directed by the appellant towards the deceased. It was of critical importance that the jury understand the very limited way in which they could use that evidence.

80 The errors identified in grounds 2(a), (b) and 4 are, in my view, errors which require that the appellant's conviction be quashed and a retrial ordered. Grounds 1 and 3 also identify errors, but it is not necessary in the circumstances of this case to consider whether, having regard to the way the trial was run, they occasioned no substantial miscarriage of justice.

81 I would grant leave to appeal, allow the appeal, and quash the appellant's conviction.