EVANS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 182 (5 September 2011)

EVANS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 182 (5 September 2011) - WASCA 2011 case summary — Zoe

[84]

A. That escalated into her becoming quite, ah, erratic and violent and, um, then we just seemed to finish off the rest of the drinks and, ah, and I - it gets a little bit blurry from there but, um, I ended up with a knife in my hand but I - I can't remember the exact reasons for grabbing the knife because I - I don't know how or why I've turned because it's gone from me being totally supportive of her - - -

Q. Mm hmm.

A. - - - and then, ah, all - it was something to do with her wanting to fight everyone and taken on and I said, 'Well, you know, well, you know, if you're gonna be causing all this trouble and ringing and around and that don't you think you should discuss it with me and, you know, and if you are gonna get into a fight [with] anyone don't you think that you should allow me to get in that position because I'm a better fighter' and then - - -

Q. Yeah.

A. - - - it started getting onto, 'Oh, you're not, I am,' and then the knife came into it and, ah, I went and grabbed the knife but in what familiar order because usually she grabs the knife but for this time I grabbed it.

Q. Mm hmm.

A. I - I admit I grabbed it and it was, ah, um, there was no intention to - to do it - to stab her or anything but then in the heat of the moment it became, ah, clear to me that I had some kind of not - it was not like a though[t] to stab her it was more like a, um, a challenge. Not by me but by her. Oh, well, you know, 'Do it then,' and then it became egotistic, ah, like, ah, drunk, um, emotional, egotistical, knife in the hand - where's this going - and the fact that there's just so much trouble been in our relationship with other people and finances and this and that it's just blowing up and, ah, then she wanted the knife and I said, 'No, I'm not giving you the knife,' and then she stuck her hand out and said, 'I wanna die cut my arm.' I said, 'I'm not fuckin cutting your arm, all right. I'll put the knife away now.' I put the knife away and then she said, 'I want the knife, I want the knife,' and, ah, I can't remember exactly - I wish I - I wish I could remember. Maybe in time with a bit of counselling I can remember more about this part, um, but I can't remember. It was a - it's a fold out knife and I can't remember the lead up to it but at one point she's gone like that and I've just slashed her arm there - - -

Q. Mm hmm.

A. - - - and it opened up so much that I could see her - all her tendons (ts 36 - 37).

[238]

I - I admit I grabbed it and it was, ah, um, there was no intention to - to do it - to stab her or anything but then in the heat of the moment it became, ah, clear to me that I had some kind of not - it was not like a thought to stab her it was more like a, um, a challenge. Not by me but by her. Oh, well, you know, 'Do it then,' and then it became egotistic, ah, like, ah, drunk, um, emotional, egotistical, knife in the hand - where's this going - and the fact that there's just so much trouble been in our relationship with other people and finances and this and that it's just blowing up and, ah, then she wanted the knife and I said, 'No, I'm not giving you the knife,' and then she stuck her hand out and said, 'I wanna die cut my arm.' I said, 'I'm not fuckin cutting your arm, all right. I'll put the knife away now.' I put the knife away and then she said, 'I want the knife; I want the knife,' and, ah, I can't remember exactly - I wish I - I wish I could remember. Maybe in time with a bit of counselling I can remember more about this part, um, but I can't remember. It was a - it's a fold out knife and I can't remember the lead up to it but at one point she's gone like that and I've just slashed her arm there - - -

...

- - - and it opened up so much that I could see her - all her tendons and - oh, I'm guessing they're called tendons ... was cut. It was so deep that it must've been to the bone and in shock I've just thrown the knife on the ground, grabbed her, pulled her down, grabbed a rug, put it on her arm and grabbed the pillows and put the pillows on her and she's going, 'What are you doing, what are you doing?' and the blood was just gushing out of this and I said, 'Oh, look mate [you're] cut really bad,' and, um, I - like I put - I wanted to hold her down so I could patch this up it was so deep the cut - - -

...

- - - and, ah, so I've sort of put two pillows underneath her, slipped 'em and held her head to hold her on the pillow so I could really wrap this around her - - -

...

- - - and then there was like a rug, ah, Egyptian like rug thing - - -

...

- - - um, and then I sort of held it down and could feel the warmth of the blood coming through and - and, ah, things didn't feel good and I was in a - in - in some form of state of shock there but, um, was in control to be able to - to - I thought well first thing's first is, ah, there was two pillow - normal sized pillows with pillow cases - - -

...

- - - on there so I reached over while I'm talking to her and monitoring her face and I grabbed one pillow and sort of, ah, shook the, ah, pillow cover off there and actually, um, ah, tourniqueted her upper arm - - -

...

- - - and pull - and pulled that tight with one hand and try and reduce the blood flow down to that part of the arm - - -

...

- - - and then I grabbed the other pillow and she's gone, 'What are you doing, what are you doing, why are you doing that?' and I said that, ah, I guess maybe she was thinking the cut's down there and I said, 'Well that's just - just to - to slow the blood flow down to that part of your arm so you don't lose blood.' I said, 'You've got a very, very, very, very bad cut there,' and she said, 'I know I saw it,' and, um, um, then I grabbed the other pillow case and then sort of lifted the rug off and it actually at that point, ah, it was right open but it - - -

...

- - - it wasn't gushing any blood at that particular point so then I sat the rug back down there and then flicked around with the tea towel trying to figure out how to tourniquet that properly and then - - -

...

- - - I can't remember how I ended up, whether I took the rug away, but somehow I managed to bandage that up - - -

- - - and then, um, was speaking to her and, um, said, 'Okay, well - well I was in some sort of shock I just spoke to her for a second then, ah, ah, then we ended up in this - at this particular point we started arguing over who was the stronger person and she said, 'I'm the stronger person.' I said, 'I'm sick of this shit, Alana, you're not the stronger person. You gotta stop fucking getting us into this shit.' 'I am.' 'You're not.' 'I am.' 'You're not.' And then I just remember grabbing the knife and I sliced her neck twice.

[253]

- - - can you - can you tell us why between like tending her from the first injury which - which went on for some time you tending to her you - you picked the knife up and - and slashed her across the neck?
It was a verbal argument - - -
Mm.
- - - that it was a verbal argument that she was stating that I was a pussy and that I wouldn't kill her and I didn't have the guts to kill her and, ah, that, ah, she'll - she'll always be stronger than me 'cause she could kill - she could kill a human and I couldn't and blah, blah, blah, and I wasn't - I know Alana and at that point it - it's not personal but she, ah, well she, when she got the drink in her, it is personal but it's not and I just got confused.
So - - -
I - I don't really know why I did it. I just got confused and anger. Combination of anger and confusion.
Okay. So that was the words she used that you were a pussy and that you couldn't kill her, is that right?
Ah, yeah, I know but she was really, you know, harping that I wouldn't - I wouldn't do it or couldn't do it or sort of thing.
Yeah.
I thought well I fuckin can, you know, but I don't want to. I don't wanna (indistinct) and that became, well fuck, and I did.
So she was challenging you to kill her was she?
Oh, yeah.
Yeah.
Yeah.
Do - do you think she wanted you to kill her?
I don't know.
You don't know?
Yeah no.
You said that she was challenging you to kill her.
Yeah, I - well, you know, how many people commit suicide and change their mind halfway, you know, halfway through it.
Okay. So - so when you did the first slash what - what were you trying to do? Were you trying to kill her?
I think - no, I - I don't even know why I did the first slash. It was just a - more a reaction.
A reaction to her?
Well she kept - she wanted me to slash her and - and, um, I don't know, just anger I did, bang. There was a lot of pushing to get to that point, it wasn't a simple thing. I mean, you know, I'm gonna have to speak to counsellors for a long time to - to explain it in a long term depth if you need to know anymore. I can't do it in one night.
Mm.
I don't understand it myself.

[275]

Each of the experts is acknowledged as an expert. There is no question that Dr Walton, Dr Pascu and Dr Brett are eminent psychiatrists. That is not an issue that either counsel have raised. The strength of their opinion and the flaws of it, if there are flaws, are matters which counsel have very properly explored and submitted to you, but the experts are experts.

Ultimately, an expert's opinion cannot displace your view of the facts and conclusions. We do not set these cases with a panel of 12 psychiatrists. The law recognises that you are capable of making a decision assisted by expert opinion and what opinion you ultimately accept is a matter for you, but that does not mean that you are simply free in an arbitrary way to ignore the professional opinions of any of three psychiatrists who gave their opinions. They are, by years of training and experience, in a far better position than you to make a diagnosis of illness and from the basis of their experience and understanding of the facts to proffer an opinion that is worthy of great respect. You should not lightly discard [an] expert's opinion unless you are satisfied that it was wrong because, for example, the factual basis from which the expert formed an opinion is not a factual basis you accept.

I'll illustrate this by way of an example. I've chosen an example deliberately that is not this case, or not an issue in this case, but just to illustrate the point. Dr Walton, for example, took into account in the formulation of his opinion the evidence, as you heard it in court, of Wayne Evans which Mr Edwardson has referred to this morning as to his brother's behaviour in 1999 and the following years. That evidence, I say, is uncontested.

But supposed it had been contested, and this is to illustrate. Suppose another witness had come along and said, 'Look, I knew Anthony Evans during that period and he wasn't like that at all. He was perfectly sane, capable and so forth.' Then there would be a factual basis upon which you would have to decide which of those two versions you accepted. And if, for example, you accepted the second version and not Wayne Evans', then the extent to which Dr Walton may have relied on that would perhaps call his opinion into question.

As I say, I've used that as an illustration of the difference in tasks, but in fact, of course, everybody has accepted Wayne Evans' testimony, so you must find what facts you accept and nobody can do that for you. But if the facts you find are consistent with those of one of the psychiatrists that they used with their opinion, you might well conclude that you can more readily act on that opinion.

The background on the relationship between the two may suggest stresses acting on the accused. If you are persuaded that he was suffering from schizophrenia, the evidence is that stress may trigger a psychotic episode. It's entirely a matter for you and your judgment, not mine, but I make the comment that it would appear in the three weeks leading to 13 November, this was an ever more stressful environment for the accused and, no doubt, for Ms Dakin.

More controversial is what can be made of the record of interview. All the psychiatrists have used that as a substantial, not the sole, basis of their opinions. Dr Pascu and Dr Walton [were] clearly of opinion that the accused was suffering schizophrenia and was his illness, he had a psychotic episode at the time of the killing and that he was deprived of the capacity to know what he was doing was wrong. Clearly of that opinion.

Dr Brett's opinion was he was not suffering from schizophrenia. He had more difficulty in making a diagnosis. He made what he called a differential diagnosis of schizoid type personality, I think, and psychosis not otherwise specified, but he acknowledged that the accused undoubtedly had a mental illness which manifested itself in psychotic episodes. He, however, did not consider that he had a psychotic episode at the time of killing and he was not deprived of the capacity to know that what he was doing was wrong, so that crisply is the area of dispute between the two parties.

Now, all as I say rely on the record of interview which is why you are going to have to examine it carefully to see what you make of it but when you do that remember that each of the opinions expressed by the psychiatrists is entitled to be very carefully considered by you. They are the experts. Each was cross-examined for the purpose of testing fairly but rigorously their opinions and for exposing to you what counsel would consider were flaws in their reasoning or approach or their observations. Whether they were flaws is a matter entirely for you.

In some sense you don't have to be an expert to decide whether responses or some of them on the video record of interview indicated a disordered mind or not despite being a common experience but I would caution you again to have regard to the whole of the record of interview and not just small portions of it. I caution you also that psychiatrists are trained and have specialised experience in interpreting such matters. They look for and may see things of significance to them but to lay people such as you and I we may not appreciate. That is part of the expertise they bring.

One thing you cannot do is just arbitrarily reject the evidence of Dr Walton or Dr Pascu without being persuaded in your own minds that there is a sound basis for not accepting their expert evidence that the accused was at the time suffering from a mental illness and on the probabilities did not have the capacity to know that what he was doing was wrong.

[280]

Well, as I say, you have to look at the whole of the record of interview. I have only highlighted some of the areas where it's a matter for you. You might think that - well, it's a question whether they amount to wrongful acts or insults or provocative behaviour on her part. To return to what I said, provocation is formulated by reference to the ordinary person, an ordinary person with all the ordinary person's [weaknesses] and strengths of character. It excludes acts done by any accused who is of unusual or hypersensitive temperament or who loses the power of self-control so as to do the act which would not cause an ordinary person in the position of the accused to lose his power of self control, either to that extent or at all. So it's judged by what the ordinary person, strengths and character, would do.

Would the words that you find were spoken and the actions done by Alana that night cause an actually [ordinary] person to lose their sense of control and do what the accused did? In judging that, you look at the background relationship and where it got to. It's an ordinary person of similar age and background as Mr Evans, so what power of self control would you expect in an ordinary person of his age, sex and background, sharing such of the characteristics as would affect the gravity of the provocation to him in the relationship as you heard described.

Put it all in context, including his explanation as to what occurred, and ask whether that provocation of that degree of gravity would cause an ordinary person to lose self control and act in the manner that he did. You must understand that an ordinary person is a person capable of acting in such a way under provocation. This is why these questions are left to juries. Bring your ordinary experience of life and the ordinary experience of ordinary people. How do people [behave] in real life?

It's more than just acts that would cause a person to get angry or lose their temper. Were the acts by the deceased towards the accused of such a nature that they would be likely to cause an ordinary person with the background of the accused to lose his power of self control and to do the acts intending to cause her grievous bodily harm?

Did it cause him to lose his self control? It's not necessary that the accused's act of cutting were proportionate to the provocation offered, but whether the state has established that the accused was not provoked, did not lose his self control and that an ordinary person in the same position would not have lost his self control to do the acts which he did which led to death.

The acts must be sudden, done, as the law says, in the heat of passion before there is time to cool down. That is, again, a matter for you. There was a period between the first injury on the arm, it would appear, and the second one. Bear in mind that's for the state to prove or to disprove provocation, but the act must be done in the heat of passion before there is time for the passion to cool down.

The state could satisfy its onus by establishing any one of the legal ingredients for provocation was not present, for instance, if you are not satisfied that the acts which the accused did using the knife on the deceased in the way described by Dr Cooke was not affected in the [heat] of passion, or there was time for him to cool down, or that an ordinary person in the circumstances would not have lost self control to have done what he did, or that in fact he did not lose self control, so the state could satisfy you of any one of those legal ingredients for provocation was not present.

I have outlined at considerable length, because there's no easy way to do it, the question of provocation because it arises on the evidence. It is a matter which, if you were satisfied about the presumption of sanity, you should examine carefully, but remembering that it is for the state to [disprove] provocation, not for the accused to establish that he was provoked, but the state to disprove it by showing one of those elements was not present.

If you were satisfied that the accused, which has been admitted, killed Alana Dakin and you were satisfied that he had the intent to do her grievous bodily harm at the time he killed her, then you would convict him of murder. If you were satisfied that he had that intent, that the state has not disproved provocation, then you would convict him of manslaughter. If you were not satisfied that the state had proved that he had the intent, you would convict him of manslaughter.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (343 paragraphs)

EVANS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 182 (5 September 2011)

Legislation Cited (2)

Cases Cited (15)