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[2011] WASCA 182
Court of Appeal (WA)
2011-09-05
Mr P, Lure P, Pullin JA, Mazza J, Kechnie J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : EVANS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 182
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against conviction - Provocation - Acts and words - Whether there was evidence that appellant was provoked - Whether trial judge erred in directions to the jury
Insanity - Whether open to jury to conclude that it was not proved that the accused lacked capacity - Whether the verdict of the jury was unreasonable or unsupported by the evidence
Appeal - Task of appellate court when dealing with ground that the verdict of the jury was unreasonable or not supported by the evidence
Attorney General for Jersey v Holley [2005] UKPC 23; (2005) 2 AC 580
Braysich v The Queen [2011] HCA 14; (2011) 85 ALJR 593
Censori v The Queen [1983] WAR 89
Dunstan v The Queen (1931) 33 WALR 118
Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441
Hind & Harwood v The Queen [1995] QCA 202; (1995) 80 A Crim R 105
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209
Lee Chun-Chuen v The Queen [1963] AC 220
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
Mehemet Ali v The Queen (1957) 59 WALR 28
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Michael v The State of Western Australia [2007] WASCA 100
Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659
Moffa v The Queen [1977] HCA 14; (1977) 138 CLR 601
R v Romano (1984) 36 SASR 283
R v Scott (1909) 11 WALR 52
Sabourne v The State of Western Australia [2010] WASCA 242
SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571
Sreckovic v The Queen [1973] WAR 85
Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312
Suresh v The Queen [1998] HCA 23; (1998) 102 A Crim R 18
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
1 This is an appeal by the appellant against his conviction for the murder of Alana Dakin (the deceased). The appellant, who admitted at trial that he had unlawfully killed the deceased, pleaded not guilty by reason of insanity. The defence of provocation was also left to the jury.
2 The appellant contends that the verdict of the jury is unsafe or unsatisfactory on the ground that the jury should have found him to be insane at the time of the killing. He also contends the trial judge made material errors of law in his direction to the jury on the provocation defence.
3 A central feature of the evidence at trial was the record of a police interview of the appellant conducted in the early hours of the morning of 13 November 2007, a few hours after the killing. The record of interview was relevant to both defences, that of insanity and provocation.
4 In the eight years prior to the killing and thereafter, the appellant had been admitted to psychiatric hospitals. It was accepted that he suffered psychotic episodes from time to time.
5 In the three weeks leading up to the killing, the relationship between the appellant and the deceased, who were engaged, was marred by many incidents of domestic violence initiated by the deceased, who was a chronic and aggressive alcoholic.
6 The defence bears the burden of proving insanity under s 27 of the Criminal Code (WA) (the Code) on the balance of probabilities. The appellant adduced evidence from two psychiatrists, Dr L Walton and Dr V Pascu. The State also called a psychiatrist, Dr A Brett. The psychiatric evidence was unanimous; the appellant was, at the material time, suffering from a mental impairment. There was disagreement as to the precise nature of that impairment. Doctors Walton and Pascu diagnosed the appellant as suffering chronic schizophrenia. Dr Brett was unable to reach a view as to the nature of the mental impairment. His provisional differential diagnosis was between schizotypal disorder and psychotic disorder not otherwise specified. Dr Brett accepted that his differential diagnosis may have been wrong and the diagnosis of Doctors Pascu and Walton correct (ts 1535). All experts agreed that the appellant suffered psychotic episodes. The question in issue was whether the appellant was psychotic when he killed the deceased and if so, whether he was psychotic to such a degree as to deprive him of the capacity to know that he ought not to do the act in question. Doctors Walton and Pascu said yes. Dr Brett said no. He linked the killing to the background of domestic violence. It was accepted that the appellant's conduct in the police interview was an important indicator of whether he was psychotic at the time of the killing.
7 Police had attended on the appellant and the deceased at their home four times in the three weeks preceding her death to respond to allegations of domestic incidents. The first visit occurred on 23 October 2007 in response to a call by the appellant. The appellant told police the deceased had pulled a knife on him and that he had been forced to defend himself for fear of being stabbed. He had punched her several times to the left side of the face. No charges were laid. A police officer gave evidence that the deceased was clearly intoxicated and aggressive and she was issued with a 24-hour police order to keep away from the appellant and his home.
8 The second visit occurred on 27 October 2007. The appellant told police that the deceased had pulled a knife on him, he had tried to knock the knife out of her hand and in doing so may have broken her hand. No charges were laid.
9 The police were also called to the appellant's house in the early hours of the morning of 30 October 2007. They were referred to the home of the appellant's parents. When police arrived at the parents' house they found the appellant's parents, the appellant and the deceased. The deceased was highly intoxicated and abusive and needed to be physically restrained and assisted from the house. The police issued a 72-hour police order restraining her from going near the appellant.
10 On 30 October 2007 the appellant, with his father, applied for a violence restraining order which was listed for hearing on 5 November 2007. The appellant failed to appear on that date.
11 The appellant's father gave evidence that in the afternoon of 11 November 2007 the appellant was stressed and confused about the relationship. The appellant sought his parents' help because he did not feel he had the courage to evict the deceased. He signed a power of attorney to his mother. On the evening of 11 November 2007 police officers attended at the appellant's address and observed the appellant, his mother and the deceased. The deceased was upset, agitated and very intoxicated. The appellant's mother produced the power of attorney and asked that the deceased be removed from the house. The police complied and served on the deceased a 24-hour police order requiring her to keep away from the premises. The deceased's conduct on the night of the killing and the appellant's response thereto has to be viewed against this background.
12 Dr Pascu gave unchallenged evidence of the appellant's psychiatric history. His first hospitalisation for psychiatric services was from 8 - 12 August 1999. He was taken to hospital by friends of his in the Eckankar religious group. The appellant was described as behaving inappropriately, making snarling noises, feeling stressed, down in his affect (emotional expression), guarded, suspicious, puzzled and fatuous (a disconnect between a person's mood and the external expression of that mood). Further, the appellant appeared to stare into space in a way which occurs with people who experience auditory hallucinations. It is recorded that the appellant at the time said he became confused about everything around him, saying he had difficulty knowing what was real and what was not real.
13 The appellant joined the Eckankar religious group sometime before his first admission to hospital for psychiatric services. At the stage when symptoms of mental illness are starting to develop, it is quite common for patients to join a religious group or change religion. In Dr Pascu's assessment, that had happened to the appellant as his psychotic symptoms revolve around spirituality.
14 The appellant's second admission to hospital for psychiatric services was from 20 - 31 August 1999. The appellant continued to present with a number of religious ideas and beliefs. He also described a thinking muscle that existed in his forehead and right elbow and said that his thinking muscle could tell him things about other people.
15 The appellant's third admission to hospital for psychiatric services was from 17 October to 4 November 1999. There had been a sudden, marked deterioration in his mental state and he was described as presenting with thought disorder, perplexity, disorientation and referential and persecutory delusions. A referential delusion is a belief that the person is getting messages from persons or sources that are not present or communicating in any conventional way.
16 The appellant's fourth admission to hospital for psychiatric services was from 29 April to 23 May 2003. He described worsening visions and messages with special spiritual meaning. Preceding the admission there had been some significant stressors in his life including a change of employment and disclosure of past sexual interference. Stress can trigger the onset of a psychotic episode.
17 The appellant's fifth admission to hospital for psychiatric services was on 15 July 2005 to 1 August 2005. The appellant gave a history of increased preoccupation with spiritual issues, a depressed mood, escalating suicidal ideation, increased paranoia and anger. He was noted as giving over-inclusive detailed accounts of events, and showing tangentiality and religious delusions. An over-inclusive account is where a person provides an answer that is very complicated and detailed with content that will contain relevant and irrelevant information. Tangentiality is where a person commences responding to a question and goes off the subject in a completely tangential way.
18 The appellant's sixth admission to hospital for psychiatric services was in December 2007, shortly after the killing. It followed a suicide attempt. The appellant described feeling confused and not being able to differentiate fantasy from reality. These were recurring themes from the commencement of his hospitalisations in 1999.
19 Finally, the appellant was admitted to the Frankland Centre at Graylands on 27 March 2008. On admission the appellant talked of his numerous tattoos in a philosophical and over-inclusive manner and was noted to have inappropriate affect, over-inclusive thought process, preoccupation with his religious beliefs and no insight into his underlying mental illness.
20 The following is a summary of relevant parts of the police interview. After one of the police officers had described the three parts of the standard caution given to persons under arrest, the last part being that the video recording could be used in court against the appellant, the appellant was asked to repeat the warning in his own words. He said:
A. Um, well I can make a statement for myself that will cover that. Um, ah, I'm in severe shock, um, trauma and, ah, I, um, have nothing to deny or, ah, I wanna speak the truth but as for understanding what I've been through I'm - I'm - I am gonna need some, if its available, some sort of medical guidance and counselling---
Q. Certainly.
A. - - - to explain - - -
Q. Yep.
A. - - -what I've been through.
Q. Okay.
A. I don't understand myself what - why - I understand but I'm very spiritual and - - -
Q. Yeah.
A. - - - this is a new experience for me - - - (ts 4).
21 Spirituality is a recurring theme in the appellant's responses during the course of the interview. He said he had been awake for 24 hours and was asked how he was feeling. He said:
A. Well I feel like sleeping and in a - in a - in a spiritual kind of way I don't feel like - - -
Q. Alright.
A. - - -I'm - I'm - I'm in the spirit world and, ah, I don't - I don't classify that as a mental illness. I'm a very spiritual person (ts 7).
22 He repeatedly said that he needed medical assistance to try and understand what had happened and that he was in a state of shock (ts 9 - 10, 14, 47 - 48, 72, 74).
23 In the course of a long response to a request for a brief description of the appellant's relationship with the deceased, the appellant said:
[T]here's a briefing to some of her colourful history and the episode tonight is, ah, um, in - in a way that, ah, basically I killed her ... I will need medical assistance on trying to understand that. Um, I'm in a lot of shock as to, ah, not being able to deal with her not being here (ts 9 - 10).
He is then asked whether the shock would prevent him from talking to the police. He says:
Yeah, I can - I - I'm not - I'm completely happy to speak ... but to understand I guess, um, some of it (indistinct) I am of sound mind to say that I killed her. ... Um, but it wasn't prior planned. Ah, I never wanted to kill her. I wish I hadn't killed her. Um, it's not even a case of remorse because I'm in love with her so, ah, it's more I guess maybe it is remorse, I'm not sure, but ... (ts 10).
A. In order to go into more about understanding why I've done this - - -
Q. Mm hmm.
A. - - - I'm really gonna need some medical help.
Q. Yep, okay.
A. Um, I don't know what type of medical person. There's so many different types - - -
...
A. I really need to find out the kind of person, ah, look, if you want - if you have a specific person and you wanna find your - - -
Q. Mm.
A. - - - side of the story - - -
Q. Mm hmm.
A. - - - then that's what you'll get but if I - - -
Q. All right.
A. - - - can find someone within the - within the realms of reality that can help - - -
Q. Yeah.
A. - - - through what I believe in and what see that can explain - - -
Q. All right.
A. - - - for me on my behalf.
24 The appellant and the deceased met on 5 April 2007 (a date tattooed on his left thigh (ts 9)). The appellant said they were engaged to be married and that she was the first and only person he would ever be in love with (ts 9). He reaffirmed his love for the deceased regularly throughout the interview (ts 9 - 11, 15, 19, 20, 28, 33).
25 The deceased was a chronic alcoholic and in the three weeks preceding her death there had been repeated incidents of domestic violence in which the deceased was the aggressor; she introduced knives into the conflict more than once.
26 The appellant was aware that the deceased was an alcoholic but also believed that she suffered from post-traumatic stress as a result of being the victim of numerous sexual assaults and other injustices. He described the deceased as being a very angry girl who would get physically violent (ts 20 - 21).
27 On the Sunday before her death, the deceased was the subject of a 24-hour police restraining order and was taken to a refuge.
28 The appellant was at this stage asked how he was feeling and whether he was intoxicated. He said no but that he had taken an anti-anxiety tablet yesterday morning. He spontaneously gave the background. He explained:
I - I've been suffering some bad anxiety, um, being with Alana with the rape side of things - - - and, ah, I had a lot of, ah, anger towards the people that have hurt her, falling in love with her and - - - and had a lot of bad thoughts and went to a doctor about it so that I feel like bringing these guys to justice and killing them and all that sort of thing - - - I didn't wanna feel like that and, ah, he suggested that I just have these tablets and it's just anxiety (ts 13).
29 The deceased rang him from the refuge on Sunday night in contravention of the police order (ts 15). He said to her:
A. - - - I said, 'Look you're not supposed to be - be calling here', and 'Oh, I love you,' and I said, 'Well I love you too but this can't go on. This is - - -
Q. Yep.
A. - - - you know, this is - this is ridiculous. I - I do love you but you need to get help and you - when you get help you know I'll - I'll stay your fiancé and when you get help and come back to - you can come back to me when you get help then hopefully things will work out (ts 15).
30 The appellant then rang his parents and told them he would be taking the phone off the hook and switching off his mobile because he was supposed to go in the following day and get a restraining order (ts 16). He had signed a power of attorney over his assets in his mother's favour because he felt that he was not making the right decisions with Alana. The domestic violence was getting out of hand and her answer was to sell everything and buy a campervan and head off into the sunset (ts 17).
31 The appellant's mother arrived at his house on the Monday morning to take him to get the restraining order. However, the appellant could not bring himself to do it as he was back to worrying about the deceased with whom he was emotionally involved and 'forgetting about the reality of what, um, might be if you like' (ts 19).
32 The deceased rang him several times that day from the refuge. He rang her back a few times and they were 'in love still but falling in love again in - in a way to a level of wanting to come home' (ts 20). He asked her whether she felt safe to come home and she said yes (ts 20).
33 The appellant drove to the refuge and collected the deceased. He suggested that they 'didn't drink from now on' (ts 23) and she said 'that's fine but not today, tomorrow'. He agreed but said they should get some dinner so they were not drinking on an empty stomach. He tried to pretend that he had forgotten to go to the bottle shop but she reminded him (ts 25). The appellant went to order some takeaway and left the deceased in his car with the key in the ignition, telling her that they would go to the bottle shop after he had got the food (ts 26). He said he was 'a bit upset' when she went to the bottle shop on her own, leaving the key in the ignition and the car unlocked. He said he had a bit of a gripe but was fearful that, with that type of thinking and with alcohol, it could lead to her becoming violent (ts 27).
34 At around this stage the police officer said he was worried about his welfare to which the appellant responded:
A. Oh, I'm - I'm more worried about my welfare if I don't get to say everything I know so.
Q. Okay. So you want to continue?
A. I - I - I need to continue, yes (ts 27).
35 The deceased and the appellant both drank after their return to his house. During the evening, the appellant agreed to sell up his assets and buy a campervan to see if the relationship would work (ts 30).
36 The deceased, who was a native North American Indian, had gone to Canada in the recent past which he said 'nearly ... killed me financially ... um, to the point of I've - I've had pains in my arms and my chest' (ts 32). Whilst in Canada the deceased had been arrested for drunk and disorderly behaviour, shoplifting and other offences. Each time it cost him money and she missed her flight back to Australia (ts 33).
37 The appellant said he could not remember exactly where things seemed to start to go wrong on the night in question (ts 33). He was outside burning off as a prelude to selling up. He went inside and she was on the phone to her mother in Broome. The appellant had placed a bar on long distance calls from his landline but the deceased had reversed the bar without his knowledge (ts 34). According to the appellant:
[S]he [the deceased's mother] ended up hanging up - ah, hanging up on Alana and saying that I hate you and that I wish you weren't my daughter and all this and regardless of what I feel like I thought that was quite rough of what she'd said and, um, I was comforting her and, um, and it all starts to get a bit blurry from here because there was a lot of basically where in the past the, ah, um, I started getting blurry on the domestic violences when I've just spent so much time trying to be there for her and calm her that she's just I guess in a way she's abused me and - - - I've just blanked out in a way (ts 35).
38 The deceased then rang her stepfather in Broome and he also hung up on her. Not long after she rang her uncle in Canada who, the appellant understood, had also 'sexually advanced' on the deceased 'on the way back' (ts 36). The appellant continued:
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).
39 The appellant then described the steps he took to staunch the bleeding and comfort the deceased. He continued:
A. - - - I can't remember how I ended up, whether I took the rug away, but somehow I managed to bandage that up - - -
Q. Mm hmm.
A. - - - 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 (ts 39).
40 The appellant then cooperated in providing a sketch of the house and where the deceased lay. He was also asked to do another sketch of the deceased's upper torso to describe the wounds. The appellant said:
There was two slash marks - - - (indistinct) a forward motion and a back motion but when I actually - it was so emotional and, ah, not - not, you're doin' it but you're not doin' it (ts 43).
41 The appellant was then asked about the injury to the deceased's arm and provided the following non-responsive answers:
Q. In relation to, um, you - you mentioned that Alana was laying down. You're - you're providing care for her - her injury on her wrist - on her arm.
A. That's correct.
Q. Okay.
A. But at the point of the cut that, um, my mind was flicking from one end to the other to - to keep her alive or let - kill her - - -
Q. Yeah.
A. - - - basically and - - -
Q. Yeah.
A. - - - um, and through no prior planned experience - - -
Q. Mm hmm.
A. - - - I elected to - to kill her. Um, - - -
Q. Okay.
A. - - - and I was talking to her and see her - her biological mother had just told her that she wished she wasn't her daughter and the girl's been raped so many times and she's been under the care of her stepfather since she was two - - - and the girl's just so distraught and all she ever talked about was the spiritual side of her - her biological father - - - and, ah, um, in a kind of way I felt like I was relieving her from her pain and, um, - - - I felt a sense of, ah, I felt her father there waiting for her and, ah, - - - um, - - -
Q. So you - you mentioned that you were - when you were leaning over and she had first injury to her arm - - -
A. That's correct.
Q. - - - you - you mentioned that, ah, you were deciding - you were flickering through whether to help her or kill her.
A. Not - not on the arm, no. That - that was a complete shock reaction (ts 45 - 46).
42 It was at this juncture that he said he needed medical help from someone within the realms of reality (ts 47).
43 He then returned to the cut on the arm and eventually was asked which hand he used to inflict that injury. The appellant said:
Both - both injuries - oh, all three injuries if you count forward and back with the right hand (ts 51).
44 The appellant then went into some detail about his thoughts as he was tending to the gash on the deceased's arm. He was asked about how much time passed between the injury to the arm and the 'final injuries'. The appellant said:
10 - 10 minutes cos, ah, she provoked me into a real, um, ah, a real verbal fight (ts 52).
[S]he's, ah, saying something along the lines that, 'You're still not fucking tougher than me. You still can't fuckin (indistinct) little cut on my hand and I'm not whingeing'. She wanted [the] cover off. She wanted me to let her go and everything and I didn't actually have her but she was indicating to take the tourniquet off. I said, 'I can't take that off, mate, that's - if - if I take that off you'll bleed to death'. 'No, I fuckin won't. No I won't bleed to death,' and at this particular point the actual - the, ah, the altercation I'll call it because I don't even know whether you'd call it a struggle - - - as to the point where I decided to - or have reacted in a similar manner to the first cut - - -to strike her again but then struck her in the neck area. At that point I realised I'd gone too far and the next one was intentional strike to finish like a - a job - - - (indistinct) (ts 53).
45 There was a question about the actual strike path of the knife as follows:
Q. So I just need to know the - the actual strike path as to the knife and how you - - -
A. Was from this direction - from this - - -direction - - - um, so (indistinct) I'll show you there. Ah, I - I (indistinct) like that so I - the actual altercation - cos there was a lot of anger going on - - - even though I'm still trying to avoid and focus on this but she's crept up in crouch - more crouch position but I can't remember exactly what she did but my reaction just grab the knife and sliced in that direction.
Q. Okay.
A. And then sliced again back in that direction and then - - - the blood - and then there was that much blood and, ah, and I didn't - I couldn't help her and in the end I actually helped her bleed to death by actually not - its not like - yeah, I killed her, that's fine, but its not like I was trying to - - - kill her cos I hated her, I - - - I helped her to pass on - - - to the spirit world and I spoke to her and I held her forehead and - and I - and then her last moments I spoke to her the whole way and said, 'You're Dad's here, your real Dad. You're finally gonna get to be with your real Dad,' and it was sincere spiritual passing on (ts 55 - 56).
46 He was brought back to how the cuts occurred as follows:
Q. Um, did - did you say that it's - it's definitely a forward motion the first one?
A. Yeah, but - but I - as I went forward she's creeped - creeped up in a way that so I couldn't actually see where it was cutting - - --
Q, Right.
A. - - - or even there was no actual - it was - it's all very weird because - - - all three times that I've actually slashed her with the knife - - - it's no connection between - - - what I'm doing and - - - what I'm feeling or - - - there's no emotion there (ts 56 - 57).
47 The appellant was then asked about the return stroke as follows:
Q. The return stroke if you like, the one - the second where you've come back - - --
A. Yeah.
Q. - - - - um, which one of the two would have been the - strongest with the best connection do you think?
A. The one coming back.
Q. Okay.
A. For some reason I felt that I'd gone too far and had (indistinct) like, um, putting her out for misery at that point.
Q. Okay. So the - the second one your intention - - -
A. The first one was, ah, ah, as indecisive as the arm - - -
Q. Yep.
A. But the third one was a calculation of a decision that - - -
Q. Okay.
A. - - - that I'm gonna kill you then cos she was tempting me to kill her. She wanted me to kill her but - - -
Q. Yeah.
A. - - - it was like that - it'd - it'd just been brewing domestic violence - - -
Q. Mm.
A. - - - for time (indistinct) and - - -
Q. Okay.
A. - - - we - we - we were in love with each other and we just kept thinking that - - -
Q. Anthony, - - -
A. - - - it was gonna get better (ts 57 - 58).
48 After the deceased died, the appellant had a shower to, inter alia, 'clean my thoughts', got dressed, then went back in and looked at the deceased, and sat down and spoke to her spirit (ts 61). When being questioned about what he did thereafter, apropos of nothing specific the appellant said:
A. Sorry, I think Alana's knocking me out in the spirit world.
Q. Yep, all right.
A. She still loves me I know that (ts 66).
49 After showering the appellant drove to his parents' home and told them what had happened. He told his father 'the worst thing that could possibly happen has happened and I've killed Alana' (ts 65). He then explained how he talked with Alana after he had told his parents what he had done (ts 66, 69).
50 The questioner then returned to what he described as the second and third injuries. The exchange is as follows:
Q. Um, now just when you went through things you - you told us that the - you - you described it as a second and third injury. You said that, um, you slashed her twice the second and third injury. The first one was to her arm, is that right?
A. Yes, that's correct.
Q. And - and the second and third injury can you just tell me why - why was there the third injury? Why did you do it the third time?
A. Ah, it felt to me like some sort of, um, instinctive finishing move because it was too - too much - cos I'd tried to fix the first slash, when the second one happened it became a shock and the first one was so bad that the next one was more, ah, a decision that it had gone too far and that I had to put her out of her misery because she was gonna die anyway (ts 71).
51 The appellant was asked whether the deceased spoke after the injury to the arm was inflicted. The exchange is as follows:
A. 'You fuckin cunt you cut me,' and, 'Get me a drink, get me a smoke, I want a fuckin cigarette.'
...
Q. And then you said - - -
A. I said, 'You do realise how much your - your arm's cut?' She said, 'Yeah, that's - that's why I want a fuckin cigarette. Give me a fuckin cigarette.' They were pretty much her words.
Q. And - and you told us that you were - you were attending the injury.
A. That's correct.
Q. You - you applied first aid.
A. Ah, I was in shock at first, as well (indistinct).
Q. And - and then it - it whilst you were attending her injury you - you were kneeling down beside her in a carer's position you described it as. That the, ah, the - the second injury - you - you caused the second injury - you slashed her.
A. Yeah. Yeah, there was, ah, some sort of altercation but I - without some sort of counselling cos at that - the point of taking care of the first cut - - -
Q. Mm.
A. - - - I'd never seen anything like that, let alone inflicted it on someone.
Q. Mm.
A. Um, all I specifically remember is the cuts - - -
Q. Yeah.
A. - - - and, um, some sort of struggle because you - when you do the forensics on the cuts you'll see that she was - was trying to sit up or move in some kind of fashion for it to be cut like that because when I went and sliced in the first time almost sort of like pinned her in the - in the - between the chin and the chest sort of thing. I - I can't remember exactly - - - (indistinct) very vague on, um, exact - - - things (ts 72 - 73).
Q. 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?
A. It was a verbal argument - - -
Q. Mm.
A. - - - 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 cos 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.
Q. So - - -
A. I - I don't really know why I did it. I just got confused and anger. Combination of anger and confusion.
Q. Okay. So that was the words she used that you were a pussy and that you couldn't kill her, is that right?
A. 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.
Q. Yeah.
A. I though 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.
Q. So she was challenging you to kill her was she?
A. Oh, yeah (ts 73).
53 The appellant was asked whether the deceased spoke after he had inflicted the second slash across the neck (the third injury). The appellant said:
She was, 'Get off me, get off me,' but the blood was coming out that fast that I knew she was dying and I was - I was just watching in shock. Um, I didn't know what I was gonna do. I didn't know what was happening really. I was, ah, experiencing it for the first time and I was just losing the love of my life and (indistinct) I got no one to blame and just feeling horrible and just looking at options. When I said that I thought about covering it up it was more just like a part of a list of options like a general list, you know, just like what - what can I do. What do I do, what can I do here. I can do this, this might happen. I can do this, this might happen. I elected to come to the police through my parents. Um, and I don't - I - I respect the law but I don't agree with it completely so I've learnt to always go through someone to come to the police to - just so that you at least get to tell your story first to - - - (ts 76).
A. - - - and I sat with here her, cos I sort of - I spoke to her in her passing and I - I helped - I helped sort of held on her - on her pressure - bit of pressure on around where the cut was, um, to assist with the - the bleeding of the last bits and not so that it hurt to try and ease the pain and had her - her forehead and spoke to her about, 'Can you see, ah, the light? Can you see your father,' and, 'You've been wanting to see him,' and I tried to turn it into, um, without sort of people knowing Alana and I and without being justified for what I've done, um, with our beliefs I just wanted her to - to I wanted her dad to be there for her (ts 78).
54 The appellant said that at his parents' house he was bawling his eyes out, talking to the deceased and saying sorry to her and that he was basically hysterical (ts 82).
55 Finally, when asked by the police who was responsible for the death he said he and the deceased were both responsible (ts 84).
56 The police officer who led the questioning of the appellant at the police interview accepted that it was difficult to keep the appellant on track during the interview and that he had a blunted emotional expression no matter what topic the appellant was discussing.
57 A next door neighbour of the appellant gave evidence that on the night of 12 November 2007 he heard a male voice in the appellant's backyard mumbling and talking to himself (ts 1047).
58 The deceased's blood alcohol content on post mortem was 0.259%. The appellant's blood alcohol content at the end of the police interview was nil.
59 Dr C Cooke, a forensic pathologist, gave evidence concerning the deceased's injuries and the cause of her death. The deceased had a wound 32 cm long from her neck, under her left ear, to her upper right chest region (ts 1171). The wound comprised two components; a penetrating or stab-type injury towards the middle of the right collarbone which was in continuity with the second component, being an incised or slicing injury from the left side of the deceased's neck. The incised injury cut the jugular vein and caused the deceased's death. The penetrating wound would not have been fatal. There was no medical way of knowing the order in which those wounds were inflicted. However, Dr Cooke interpreted the appellant's description of the backward motion in the video record of interview as being from the penetrating wound on the right side of the deceased to the left side of her neck (ts 1174).
60 Dr Walton interviewed the appellant on one occasion in July 2010. Based on details of the appellant's history, both before and after the killing, Dr Walton concluded that the appellant is a chronic schizophrenic and was so at the time of the killing. He was also satisfied on the balance of probabilities that the appellant was psychotic at the time of the killing to such an extent that he did not have the capacity to know that he ought not to do the act. That conclusion was primarily based on Dr Walton's assessment of the appellant's conduct in the police interview.
61 He concluded that the appellant was psychotic at the time of the interview based on conduct demonstrative of, or consistent with, deluded thinking and beliefs and conduct disclosing thought disorder. Dr Walton accepted that there are passages in the police interview where statements made by the appellant are structured, logical and apparently demonstrative of logical thought processes (ts 1354). However, the instances of deluded thinking and thought disorder caused Dr Walton to conclude that the appellant did not provide a coherent, chronological account in the police interview.
62 Schizophrenia is a psychotic illness. A person with such a condition will experience psychotic episodes. There is great variability in the speed of onset, duration and intensity of psychotic episodes. They can come on suddenly. Schizophrenia does not affect intelligence and memory but can result in disturbed emotions, thinking, perception and behaviour (ts 1224). The fact that the appellant in the police interview was shown to be a reliable historian of objectively verifiable events did not prevent a conclusion that he was psychotic at the time of the interview.
63 Dr Walton accepted that the appellant appeared to have made a genuine attempt to describe his sensations, emotions, motives and decisions in the police interview but could not say whether or not they were accurate (ts 1295). For example, Dr Walton accepted that the appellant perceived that the deceased was taunting and goading the appellant to kill her but said it was necessary to be cautious about accepting the accuracy of his perception (ts 1346). Dr Walton was unable to establish whether or not the appellant was hallucinating at the time of the killing but said there was no evidence that he was suffering from command hallucinations (ts 1241, 1297).
64 Stress can precipitate an episode of psychosis. The appellant's immediate history of stress and excessive drinking were conditions that were ripe for precipitating an acute psychotic episode. During the police interview the appellant did not display any psychotic symptoms that would be obvious to a lay person such as auditory hallucinations, paranoid delusions or gross thought disorder such as to render a person incomprehensible (ts 1246). However, in Dr Walton's view, the recurring theme of the vague concept of spirituality exemplified deluded thinking because it did not conform to any conventional religion and was out of character for the appellant who came from a non-religious background (ts 1231). A delusion is a fixed false belief which cannot be shaken by contrary evidence.
65 Dr Walton had questioned the appellant on the subject of his spirituality. The appellant has a number of tattoos of enormous significance to him because they reflected his beliefs, although not in a way that Dr Walton could comprehend (ts 1298). He tried to understand the appellant's belief system but failed (ts 1302).
66 Dr Walton was cross-examined on the many references made by the appellant in the police interview to the subject of spirituality. They included: (1) the appellant's response to being asked to explain the caution (ts 4); (2) the appellant's response to the question as to his tiredness (ts 7); (3) what the appellant said to the deceased after assisting the bleeding process (ts 56, 78); (4) having a shower to clean his thoughts and then returning to have a conversation with the deceased's spirit (ts 61 - 62); (5) the statement that the deceased was 'knocking [him] out in the spirit world' (ts 66); (6) the statement that his main purpose at the time was that he wanted the deceased 'to feel justice in the afterlife' and for her 'to be there for him when [he gets] there' (ts 82). Dr Walton described the statements variously as whacky, abnormal, very strange, odd, weird and as all being consistent with delusional thinking.
67 Dr Walton was also cross-examined on what he regarded as examples of the appellant's thought disorder in the police interview. Thought disorder is demonstrated by: (1) a person slipping off track from one subject matter to another in response to a question (known as derailment or loose associations); (2) obliquely related or completely unrelated answers to questions; (3) disorganised speech to such an extent as to substantially impair effective communication; and (4) flatness of affect (emotional expression).
68 In Dr Walton's opinion, the appellant exhibited a lack of range of emotional expression in the police interview which was striking having regard to the content of his statements. That is, there was an incongruity between the appellant's blunted emotional expression and the content of his statements. Dr Walton regarded it as diagnostically significant because the appellant's presentation at his interview in 2010 was substantially the same (ts 1331).
69 Dr Walton was cross-examined on examples of thought disorder upon which he relied, including the following. First, the appellant's immediate response to the request for an explanation of the caution. Dr Walton said that thought disorder was demonstrated by the disorganised structure of the appellant's response, the fact that its content was an unusual and inappropriate response to the question (he described it as a diatribe of nonsense), and that the words and thoughts were jumbled up.
70 Secondly, the statement (at ts 9 - 10) in which the appellant attempts to explain his thoughts and feelings about the deceased's death in a context where he repeatedly refers to his confusion and the need for medical help to understand why he did what he did. Dr Walton said the structure of the appellant's response did not hang together and was not logical. Moreover, the answer is part of a broad drift from what he was asked, which was to give a brief description of his relationship with the deceased (ts 9).
71 Thirdly, the appellant's statement as to why he could not put a restraining order against the deceased being 'even though I respect the law I disagree with a lot of the law. Um, I disagree with the, you know what I mean, it changes all the time too so sometimes you agree with something one day and you don't the - - - next when it changes and what not, so' (ts 17 - 18).
72 Fourthly, the appellant's explanation (at ts 37) leading to him cutting the deceased's arm. Dr Walton regarded this as seriously disorganised. He also said care was required with accepting this response because he could not safely conclude whether the appellant's description of what he perceived reflected the reality of what was occurring (ts 1346).
73 Fifthly, the passage (at ts 45 - 47) where the appellant drifts from a question about inflicting the injury to the deceased's arm to his mind 'flicking', a reference to the other injuries. He then reverts back to talk about the injury to the arm, which ends up with the appellant referring to the need to obtain medical help from someone within 'the realms of reality'.
74 Sixthly, in response to a question about what he was wearing at the time of the killing, the appellant talks about having two or three states of mind and having a shower to clean his thoughts (ts 61).
What I've said is there is, for me, convincing evidence repeatedly in the record of interview and elsewhere that his thinking was disordered both in structure, in content, with sufficient frequency, likely to be more severe at the material time of the killing, such that I am satisfied that at least on the balance of probabilities - I can't say absolutely that was the case, you never can, but I believe it's more probable than not that that was relevant and did deprive him of moral capacity (ts 1360).
76 Dr Pascu is the head of clinical services at Graylands Hospital, the biggest psychiatric hospital in Western Australia. The Frankland Centre is part of Graylands and provides forensic psychiatric services to people involved in the criminal justice system. She interviewed the appellant in January 2009 and July 2010. The appellant has been on antipsychotic medication since his admission to Graylands in March 2008. He was not on antipsychotic drugs at the time of the killing.
77 Dr Pascu was present when Dr Walton gave his evidence at the appellant's trial. She agreed with him that the appellant suffered from chronic schizophrenia, that he was psychotic at the time of the killing and that he did not have the capacity to know that he ought not to kill the deceased.
78 She first diagnosed the appellant as suffering from chronic schizophrenia in January 2009, well before knowing the opinion of Dr Walton. In her opinion, the appellant had suffered from chronic schizophrenia for at least 10 years, commencing in around 1999. She thought he had been psychotic for most of that time but because symptoms fluctuate, it might have been more obvious at some times than others. In her assessment, the appellant had a moderate, towards severe, form of schizophrenia. As psychotic symptoms can wax and wane, it did not follow that a person in a psychotic state necessarily lacked the capacity to know they ought not to do the relevant act.
79 Dr Pascu agreed that the police interview was important in assessing whether the appellant was psychotic at the time of the killing. However, it was not the only relevant source of information. The appellant's history was also important.
80 Dr Pascu concluded that the appellant was psychotic at the time of her interviews with him in January 2009 and July 2010. During one of the interviews she asked the appellant to explain the meaning of the tattoos on his body and he provided a strange, spiritual and pseudo-philosophical explanation about them. Because of the appellant's preoccupation with spirituality, she did some research on the Eckankar religion. It involves a belief that each person is a Soul and that a Soul is a particle of God and that each Soul is sent by God into the lower worlds (including earth) to try and gain some spiritual experiences to take back to God.
81 Dr Pascu explained that a person can be in a psychotic state and yet still have a memory of what they did whilst in that state. Being psychotic does not necessarily mean that they are intellectually impaired or their memory is completely gone.
82 The appellant's police interview was the closest mental state examination in relation to the killing although it had limitations because it was conducted as a police interview not as a psychiatric assessment. It was apparent to her that during the interview the appellant was experiencing psychotic symptoms which were not fully explored by police and that he may have been experiencing auditory hallucinations during the interview. Having regard to the appellant's conduct in the police interview and his history, both before and after the offence, Dr Pascu concluded on the balance of probabilities that at the time of the killing the appellant did not have the capacity to know that he ought not to do the act. She was also of the opinion that although he had not been deprived of his capacity to control his actions, that capacity was impaired.
83 Dr Pascu agreed with Dr Walton's evidence concerning the psychiatric significance of the various passages in the appellant's police interview. She was scornful of the proposition that it was a coherent chronological narrative without any particular psychiatric significance.
84 She observed tangentiality in the appellant's police interview as well as restrictive affect, being a disconnect or incongruency between the mode of expression and the subject matter being discussed. Dr Pascu agreed with Dr Walton's assessment that the appellant had a limited range of reactivity in his police interview. There was also evidence of perceptual disturbances and lack of insight into the illness. A perceptual disturbance is the presence of a perception without an actual stimulus being present (hearing something that was not said by anyone). Lack of insight into the mental illness is frequently seen in patients with schizophrenia. Dr Pascu said the appellant was over-inclusive in the police interview and on the two occasions she had interviewed him.
85 Having regard to the significantly stressful three week period prior to the killing, Dr Pascu thought it was likely that the appellant's psychosis had been escalating over that period.
86 Dr Pascu concluded that the appellant was experiencing psychotic symptoms which contributed to his impaired judgment and irrational thinking and that, together with the ongoing relationship problems, contributed to the events leading to the offence.
87 Slight differences in the opinions of Doctors Walton and Pascu emerged in cross-examination. Dr Pascu was of the opinion that the appellant may have had the relevant capacity (to know that he ought not to do the relevant act) at the time he inflicted the arm injury. This is in line with her view that rather than being discretely episodic, the psychosis was likely to be more continuous in nature with the symptoms of the psychosis waxing and waning in severity (ts 1450).
88 In concluding that the appellant did not on the balance of probabilities have the relevant capacity at the time of the killing, Dr Pascu also relied in part on the recent history of domestic violence in which the deceased had been injured but not fatally wounded. She thought that could contribute to an inference that up to the time he inflicted the arm injury, the appellant had some capacity to know how far he could go but lost that capacity thereafter.
89 Dr Pascu was also cross-examined about whether the appellant was delusional in the police interview. She accepted that there is a distinction between a delusion and an over-valued idea (although most lay people cannot tell the difference). There are technical criteria for a belief to be a delusion. In the area of religion, a belief is not a delusion if it is a widely held belief. For example, belief in an afterlife is not necessarily a delusion. But a belief in an afterlife that is uniquely held and is not identifiable to any sort of recognised belief can be a delusion if it is held with a fixed intensity (although some religious beliefs by their nature cannot be the subject of proof or disproof). Dr Pascu accepted that the beliefs of the Eckankar religion could not be regarded in and of themselves as delusions.
90 Dr Pascu was asked to explain why the appellant's spiritual beliefs were delusions. She said that in discussing the appellant's spirituality at their second interview, the appellant talked about himself being God, God talking through him, and him feeling that something was putting thoughts into his head. However, he was otherwise unable to elaborate or explain his beliefs and his responses were suggestive of a sense of confusion.
91 As to the effect of his delusional beliefs on the relevant capacity, Dr Pascu explained that if a person is acting in a way that is affected by delusional beliefs, then the decisions that he may make about a certain situation may not be the right decisions or he might misinterpret events, coloured by the delusional beliefs, which also impact on the ability to reason in a rational way. When pressed to be more specific she said that the delusions may have caused the appellant to interpret the whole act of killing as a mercy killing and to believe that he was actually doing the deceased a favour by allowing her to rejoin people from her past.
92 Dr Pascu was also of the opinion that it was possible for a person to be psychotic and yet be aware that they were not making sense and be brought back on track.
93 Dr Brett was called by the State. He accepted that the appellant suffered from a mental impairment but was unable to diagnose the actual condition he suffers. Dr Brett's provisional differential diagnosis was between schizotypal disorder and psychotic disorder not otherwise specified.
94 Dr Brett interviewed the appellant on 23 October 2008 and 30 October 2008. He concluded that the appellant had exhibited no thought disorder at either interview. Dr Brett agreed with Dr Pascu's summary of the Eckankar religion. He had also discussed the subject of spirituality with the appellant who told him he no longer practiced the Eckankar religion though he still had spiritual beliefs. According to Dr Brett, they were an amalgam of spiritual beliefs, including some of native Indian type; he believed in the afterlife, he believed in spirits, and he believed the deceased would be able to meet her deceased father in the spirit world and he would be able to join them after his death. In Dr Brett's opinion, the appellant did not hold those beliefs with delusional intensity.
95 After having considered all the relevant information, including the appellant's psychiatric history and the police interview, Dr Brett came down to two hypotheses which he explains as follows:
In this case what hypotheses did you consider?---That [the appellant] was acutely psychotic at the time of the offence and that the offence was driven by psychosis, as one.
What conclusion did you reach about that hypothesis?---I didn't think that was the most rational one, or most likely one, sorry.
Go on, other scenarios?---The the scenario was that this was what we would call a normal murder, so this was a murder in the context of domestic violence, emotional upset and alcohol use.
What did you consider in relation to that hypothesis?---I believe that likely scenario was more likely than the previous one (ts 1506 - 1507).
96 In making his determination about the presence of active psychosis at the time of the interview, Dr Brett looked for psychotic symptoms that are violence related, such as persecutory delusions or command hallucinations. There was no evidence of such symptoms. However, he appeared to accept that violence-related psychotic symptoms are not the only relevant symptoms (ts 1507).
97 Dr Brett agreed that a person with schizophrenia is not actively psychotic all the time and that even when actively psychotic, the person can be legally sane. Dr Brett also accepted that the appellant had suffered a number of psychotic episodes before and after the killing that required hospitalisation but observed 'we don't know how he was travelling in between those hospitalisations' (ts 1508).
98 Dr Brett disagreed with the opinions of Doctors Walton and Pascu that the appellant presented as psychotically thought disordered during the police interview. He explained:
Thought disorder is a complex thing. It's not always the question that if you are thought disordered you are psychotic, and people with schizophrenia often do become thought disordered or in psychosis in general, and a good way of looking at it is that people with psychotic disorders lack a filter. Everyone has different thoughts come into their heads all the time but people with psychosis lack a filter, so they can't give preference to one stream of thought or another.
...
Go on if you would please?---So the other thing you've got to look at is normal thought disorder, and what I mean by that is there's some periods where people become thought disordered for normal reasons. Stress can precipitate thought disorder. Sitting in a witness box is a stressful thing.
So is standing at the bar table? - - - You say some silly things, and that's not because I'm psychotic but it's because I'm anxious. So when [the appellant] was being interviewed by the police he was trying to give an account of what happened but at the same time I believe he was having thoughts of what had occurred. He killed his soul mate and so although the police were trying to get him to give an account of what was happening, he still had those thoughts quite clearly in his mind of what had just occurred, so you would expect him at times to get a little bit off track. That's not a psychotic phenomena; that's a normal phenomena (ts 1508 - 1509).
99 Dr Brett did not see any evidence in the police interview to suggest the appellant was suffering from hallucinations, although additional information provided by they appellant to Dr Brett at interview may have been a hallucination (after killing the deceased the appellant saw 'yellow flecks and spirals as her souls left'). He regarded that as legally irrelevant because it was (just) after the killing (ts 1510).
100 Dr Brett concluded that the appellant in the police interview did not exhibit 'a florid thought disorder' and thus was not psychotically thought disordered (ts 1510).
101 In relation to the appellant's statement that he needed to see an expert within the realms of reality, Dr Brett thought it was an odd term to use but it was consistent with the appellant's personality characteristics and was not one which was psychotic per se. In relation to the appellant's response to the caution Dr Brett said:
Well, firstly, I think this is the third time he has been warned about his interview and I think he believes he has already given a reason as to what he can and can't say and then he wants to say about what happened. He's in a state of shock. People don't generally know what the police warning is and so I think the statement is quite reasonable: he has just killed his soul mate, he feels he needs counselling for it, he feels he [needs] medical help, he feels he needs to have a spiritual understanding of what occurred (ts 1511).
102 As to the appellant's response to the question about the state of his tiredness (that he was in the spirit world and did not have a mental illness) Dr Brett thought this was explained by the fact the appellant was exhausted and had been through a harrowing experience which he did not understand. He did not think that the appellant's responses at ts 61 - 62 were a good example of thought disorder.
103 Dr Brett also disagreed with the opinion of Doctors Walton and Pascu concerning the appellant's emotional affect during the police interview. He detected some variation in reactivity but in any event he thought the appellant had got a lot of emotion out of his system before the police interview. Although the appellant's affect was psychiatrically significant, it was not in itself a diagnostic feature of psychosis.
104 Dr Brett accepted that a person suffering an active psychosis may act and reason in a rational manner but said that the extent of the incidences of rational conduct can displace a conclusion that the person lacks a relevant capacity.
105 In summary, Dr Brett was of the opinion that there was little evidence of psychosis in the appellant's police interview. He concluded that although the appellant has significant mental health problems, he was not at the time of the offence deprived of any of the relevant capacities, including the capacity to know that the act of killing was wrong.
106 In cross-examination, Dr Brett agreed that the appellant had been suffering from a mental illness since 1999, that he had suffered psychotic episodes, that psychotic episodes were consistent with schizophrenia, and that stress can trigger the onset of a psychotic episode in a person suffering from schizophrenia. However, he did not accept that the appellant's references to spirituality in the police interview were consistent with him displaying psychotic behaviour notwithstanding it was a recurring theme of the psychotic episodes for which he was hospitalised (ts 1534).
107 Dr Brett accepted that his provisional differential diagnosis may be wrong and that the diagnosis of chronic schizophrenia may be correct (ts 1535). However, he refused to go to the next step and accept that the appellant was psychotic at the time of the killing on the basis that there was no evidence for it (ts 1543).
108 In Dr Brett's assessment, during most of the police interview the appellant gave a chronological, detailed account of what happened, by which he meant that all the experts who looked at the police interview were able to come up with the same account of the alleged offence. He also said the spirituality references were very significant for the appellant and not extraneous.
Whether verdict unreasonable or unsupported (ground 2)
109 This court must allow the appeal if in its opinion the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: Criminal Appeals Act 2004 (WA), s 30(3)(a). The jurisprudence relating to this statutory expression developed using the phrase 'unsafe or unsatisfactory'. There is no relevant material difference in their meanings: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492.
110 Of the expression 'unsafe or unsatisfactory', the High Court in M v The Queen said:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty ... But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. ...
...
... In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred (ts 493 - 494).
111 If this court is satisfied that the verdict is unreasonable or unsupported by the evidence in the appellant's trial, it can enter a judgment of acquittal: s 30(5)(d) of the Criminal Appeals Act.
112 We are here concerned with whether, having regard to the whole of the relevant evidence, it was open to the jury as a matter of fact (not law) to fail to be satisfied on the balance of probabilities that the appellant's mental impairment deprived him of the capacity to know that he ought not to do the act.
113 In this case there was no challenge to the credibility of the expert witnesses and the primary facts on which their opinions depended were also unchallenged. Accordingly, there was no advantage to the jury in seeing and hearing the witnesses on the issue of insanity.
114 The question is how the approach in M v The Queen applies when the real issue is not whether the prosecution has discharged its burden of proving guilt beyond reasonable doubt but whether the accused has proved a defence on the balance of probabilities. If the test in M v The Queen is literally interpreted, the task of the court might be regarded as being to review all of the evidence, come to its own view on the defence and substitute its view for that of the jury unless the court is relevantly disadvantaged by not seeing or hearing the witnesses. That approach would be very close to the role of an appellate court in civil appeals. If the judges in a civil appeal consider that the trial judge was in no better position to decide a particular question of fact than they are, the appeal court must give effect to its own judgment: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531.
115 However, as clearly emerges from Warren v Coombes itself, that is not the case in an appeal against the verdict of a jury who, unlike a judge, are not required to give reasons for their decision: see also Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113] (Hayne J). It is necessary to be cognisant of the role of the jury as the constitutional tribunal for resolving disputed factual questions in criminal trials.
116 The test applicable to the resolution of a claim that jury verdicts are unreasonable because they are inconsistent (see MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 366 - 368) is in line with the test in Libke [113]. That test, adapted to the current circumstances, is that the appellant has to establish that a reasonable jury who had applied their minds properly to the evidence in the case had to (not just could) be satisfied on the balance of probabilities that the appellant did not have the capacity to know that he ought not to kill the deceased. Applying this test, a finding will be reasonably open to the jury even if this court may or would have reached a contrary finding on the evidence.
117 The fact that one of the experts (Dr Brett) was of the opinion that the appellant was not psychotic and not relevantly incapacitated at the time of the killing is a significant obstacle for the appellant. It was not shown that Dr Brett's opinion was based on incomplete or wrong information. Moreover, it was not put to Dr Brett that he had a wrong understanding of the relevant medical or legal standards. Even if there may be a doubt as to the correctness of the insanity hypothesis he articulated, it is clear that Dr Brett was not satisfied that the appellant was psychotic at the time of the police interview (or at the time of the killing).
118 On the other hand, there are aspects of Dr Brett's evidence concerning the appellant's police interview that may be seen as unconvincing. I have in mind Dr Brett's interpretation of, or justification for, a number of the appellant's statements and his conclusion about the appellant's spirituality.
119 In this case the jury was able to consider the experts' views with the benefit of real evidence of the primary facts, being the video evidence of the appellant's statements and conduct during the police interview. The jury may have assessed that evidence differently from the experts. The assessment of that material would have been undertaken on the basis accepted by all the experts that the honesty of the appellant's account in the police interview was not in issue.
120 By any measure, the appellant's interview with police is strikingly unusual in a number of respects. A great deal of the information he provides is volunteered, in the sense that it is not directly, and sometimes not even indirectly, responsive to a question or request for information from police. Much of what is volunteered relates to the appellant's thoughts, thought processes, emotions and possible motives, about which he is confused. Indeed, there is much confusion in the appellant's mind as to how and why it all happened. The impression from the police interview as a whole is that the appellant, for his own welfare, needed to try to capture and describe what was going on in his head as the events unfolded. It was as if the appellant approached the interview as an essential therapeutic exercise. This may cast the respondent's emotional flatness in a different light.
121 Further, against the undisputed history of the appellant's hospital admissions for psychotic episodes, his presenting symptoms on those occasions and his receipt of psychiatric services, it is to be expected that he was aware that from time to time he could not distinguish between what in his head was reality and what was not. Against that background, the appellant's response to the caution may be seen as him trying to explain that although he wanted to tell the truth, he was only able to tell police what he perceived to be true, which may not have corresponded with reality. That also provides context for his repeated references to requiring medical or counselling assistance in order to know what was real. The appellant's statement that 'I am of sound mind to say that I killed her' (ts 10) is to underscore that in this respect he knew his perception corresponded with reality. Otherwise, the appellant throughout the police interview displays varying degrees of confusion about why and how it came to be that he had killed the only person he would ever love.
122 Viewing the police interview in this light is not entirely consistent with Dr Brett's opinion but may also detract from the persuasiveness of the views of Doctors Walton and Pascu that the appellant was thought disordered in some of his statements.
123 On the other hand, the evidence of Doctors Walton and Pascu in relation to the appellant's frequent references to spirituality may be regarded as more persuasive than those of Dr Brett. That may be attributable to the fact that Dr Brett interviewed the appellant about his spiritual beliefs when he had no active psychotic symptoms. The appellant's statement in the police interview that he was 'in the spirit world' and his apparent belief that he could communicate with spirits would seem to go beyond conventional religious views.
124 Further, the appellant's statements about being in the spiritual world and being spiritual are often raised in the context of his stated confusion and failure to understand what had happened. He also appears to perceive that what others may see as his mental illness, he sees as his spirituality. All this is consistent with the recurring link between the appellant's psychotic episodes for which he was hospitalised and his associated focus on matters spiritual.
125 However, notwithstanding these disquieting features, I am satisfied that it was reasonably open to the jury to fail to be persuaded on the balance of probabilities that on the night in question the appellant was deprived of the capacity to know he ought not to kill the deceased. The appellant had to establish to the requisite standard not only that he was psychotic, but that he was psychotic to such a degree as to deprive him of that capacity.
126 Much of the appellant's description of the objective events leading up to and including the killing are, on their face, rational, coherent and chronological. More importantly, there was also evidence in the police interview that the appellant was thinking rationally before and after the deceased's death. He was intentionally conducting himself in a way to avoid the risk of triggering a violent reaction from the deceased. He was also thinking rationally about how to avoid or minimise the intake or impact of alcohol by or on the deceased. After inflicting the initial injury to her arm, he acted rationally in attending to the injury he caused. His shocked reaction to what he had done is consistent with an insight into its wrongfulness. There was other evidence to support an inference that he had insight into the wrongfulness of his conduct. Immediately after the deceased's death his mind momentarily turned to attempting to cover up what he had done. He acknowledged to his father that the worst possible thing had happened. Further, the appellant's statement that he and the deceased were both responsible for her death, is a rational conclusion consistent with him reacting violently to the deceased's conduct as he described it in the police interview.
127 The State concedes that the trial judge made an error of law in his direction to the jury on provocation. The concession is correctly made. The trial judge repeatedly said that the relevant question is what an ordinary person would be likely to do in response to the relevant provocative conduct. The error is clearly apparent in the following extract from the direction on provocation:
[Provocation] 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 (ts 1594). (emphasis added)
The test of provocation is by reference to what the ordinary person could or might have done, not would have done: Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58, 69. However, the State contends that the error made by the trial judge did not result in a substantial miscarriage of justice. Central to that submission is the further proposition that the evidence at trial was incapable of supporting the defence of provocation.
128 The appellant also contended that the trial judge erred in directing the jury that the ordinary man for the purpose of the defence of provocation did not include a man who was mentally ill and that he failed to adequately direct the jury as to the way in which they could properly take into account evidence of the appellant's mental illness.
129 Section 281 of the Code (repealed by the Criminal Law Amendment (Homicide) Act 2008 (WA)) applies to the offence with which the appellant was charged. That section provided:
When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.
130 The parties accept that the law of provocation in this State is correctly stated in Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441. I do not propose to repeat the legal principles which are detailed in that case. If it is necessary to decide whether s 245 of the Code or the common law supplies the definition of provocation for the purposes of s 281, I would maintain my agreement in Hart with Steytler P on that topic (see [33]). However, if as would appear to be the case, the word 'likely' in s 245 means a real not remote possibility (Hind & Harwood v The Queen [1995] QCA 202; (1995) 80 A Crim R 105, 141 - 142), there is no material difference between s 245 and the common law.
131 Although the legal principles are well known, the understanding of them is tested in their application. Central to an understanding of the law of provocation as explained by the High Court in Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312 and Masciantonio is the distinction between characteristics affecting a person's power of self-control and characteristics affecting the gravity or extent of the provocation. Characteristics affecting the power of self-control are those of an ordinary person of the age of the accused. Ordinarily, the characteristics of the accused can be taken into account in assessing the gravity of the provocative conduct.
132 However, where a characteristic of an accused has the effect of reducing that person's power of self-control and also impacts on the (subjective) gravity of the provocation, the impact of the characteristic directly or indirectly on the objective standard of self-control must be ignored. In other words if the characteristic is of such a nature as to reduce a person's power of self-control, that characteristic is to be ignored for the purpose of the objective test.
133 Thus, any deficiency in the power of self-control due to an accused's mental condition is to be disregarded and his reaction tested by reference to the objective standard: R v Romano (1984) 36 SASR 283, 289 (King CJ).
134 However, where the content of the provocation bears directly on a characteristic of the accused, that characteristic is taken into account in assessing the gravity of the provocation and indirectly in the application of the objective standard of self-control. This is the case where the provocative conduct incorporates a slur which corresponds with an accused's characteristic, such as a racial slur to a person of that race or a disability slur to a person with that disability: Romano (291). In the latter scenario, the ordinary person will be a person with a mental illness solely for the purpose of assessing the gravity of the content of the provocation.
135 The purpose of the two pronged objective test favoured by the High Court is to enable subjective characteristics of the accused other than age to be indirectly taken into account in the objective test if (1) the content of the provocation relates to a particular characteristic of the accused or, (2) the characteristic does not itself lower a person's self-control. In practical terms, the ordinary person is projected into the shoes of the accused except for characteristics (or conditions such as intoxication) that reduce self-control unless the characteristic is itself the subject of the provocative conduct, in which event, the gravity of the provocation increases but the power of self-control remains that of the ordinary person: Stingel (331 - 332); Romano (289 - 291). The objective test would be subverted if a characteristic that lowered self-control could be taken into account indirectly by increasing the gravity of the provocation. Stingel is a case where the accused's characteristic corresponded with the provocative conduct. It is also pertinent to underline that this discussion relates to the characteristics or attributes of the accused, not the objective surrounding circumstances in which the assessment of provocation falls to be determined.
136 However, it goes too far to say, as the trial judge did, that provocation excludes acts done by an accused who is of unusual or hypersensitive temperament. If the gravity of the provocation is capable of causing a hypothetical ordinary person to retaliate to the degree and method used by the accused, it does not matter that the particular accused had a characteristic that resulted in a low threshold of self-control: Attorney General for Jersey v Holley [2005] UKPC 23; (2005) 2 AC 580 [12].
137 If a provocative act is capable of provoking an ordinary person to retaliate to the degree and method used by the accused, the associated question of whether the accused had regained his self-control so that the continued infliction of injury was in fact no longer provoked is to be answered by reference to the conduct of the accused himself and the common experience of human affairs; it is not a question to be answered by reference to the ordinary person: Masciantonio (69 - 70).
138 The State submits that the provocation in this case was not such as to be capable of causing an ordinary person to lose self-control and act in the way the appellant did. The primary contention is that the defence of provocation ought not to have been left to the jury. A defence should be left to the jury if there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that the elements of the defence had been negatived: Braysich v The Queen [2011] HCA 14; (2011) 85 ALJR 593 [36].
139 That question should be answered in this case against the backdrop of the jury's rejection of the defence of insanity. It can be assumed that the jury accepted the evidence of Dr Brett, in which event, they were not satisfied that the appellant was a chronic schizophrenic or that he was psychotic when he killed the deceased. In those circumstances, there is no medical evidence that the appellant's mental illness caused any deficiency or impairment in his power of self-control. That being the case, any characteristics affecting the gravity of the provocation to the appellant will also be relevant in assessing whether an ordinary person could react to the provocation in the way the appellant did.
140 The State's submission is that the evidence established that the third injury caused the deceased's death; the third injury was inflicted after the appellant had regained his self-control; therefore the infliction of the third injury could not have been provoked.
141 The primary evidence relating to the defence of provocation is the police interview. However, the evidence of the deceased's conduct on the night she was killed has to be viewed in its historical context, in particular against the background of the high drama of the previous three weeks: Masciantonio; Moffa v The Queen [1977] HCA 14; (1977) 138 CLR 601.
142 The evidence in the police interview, taken at face value, supports the following. The appellant and the deceased had been in a relationship since April 2007. They were engaged to be married. The appellant loved the deceased notwithstanding that she was a chronic alcoholic who had inflicted emotional and financial pain on him, and in the three weeks prior to the killing, had threatened him with violence, including with knives. By any measure, that period was highly charged and very stressful for the appellant. He was deeply conflicted in his responses. Notwithstanding the pain she caused him and his appreciation of the fact that he was not making the right decisions with the deceased (resulting in the appellant giving a power of attorney to his mother because the deceased wanted him to sell everything, buy a campervan and head off into the sunset), he continued to love her. He also wanted to protect her from herself and others, including the many persons she said had sexually assaulted her. By the time the deceased goaded and taunted the appellant on the night of the killing she was very severely intoxicated, had caused him further financial pain by making long distance telephone calls on his landline notwithstanding the bar he had placed and he was so reduced in defensive capacity that he had agreed to do what he knew was not in his best interests. The deceased's goading and taunting was at fever pitch and he snapped and did what she was asking for.
143 That evidence is capable as a matter of law and fact of giving rise to a reasonable doubt as to whether the appellant was provoked to cause the first and the second injuries. The same can be said, in my view, of the third injury for a number of reasons. First, there is evidence that the second and third injuries were caused as part of a continuous motion forward then backward. That is, there was no reasonable time for the appellant to regain self-control between the infliction of the second and third injuries. Secondly, a review of the recording of the police interview reveals that initially the appellant demonstrates one slicing movement from the left side of the deceased's neck to the right armpit as causing the injuries to the deceased's body. Later he described the 'second' and 'third' injuries as being caused by a forward then backward motion. Thirdly, the appellant repeatedly describes his movements, both forward and backward, as slicing, not stabbing. Dr Cooke's interpretation of the police interview is not the only reasonable interpretation and arguably takes one explanation out of its broader context. Fourthly, there is a degree of confusion in the appellant's description of what he was thinking when inflicting the third injury. He also said it felt like an 'instinctive finishing move' (ts 71) which is consistent with there being no break between inflicting the second and third injuries. Unfortunately, the terminology used at the trial to describe the wounds conveys an impression, not established in the evidence, that the second and third injuries were discretely and separately inflicted.
144 For these reasons, I am satisfied that the defence of provocation should have been left to the jury. Further, it was open to the jury as a matter of fact to conclude that the State had not negatived the defence. Accordingly, the State has not established that the error made by the trial judge did not occasion a substantial miscarriage of justice.
145 I would uphold the first ground of appeal, allow the appeal, set aside the verdict of guilty and order a retrial.
146 PULLIN JA: The appellant applies for leave to appeal against his conviction of murder. The conviction was recorded after a guilty verdict by a jury after a trial before McKechnie J and the jury.
On 13 November 2007 at Girrawheen, Anthony Thomas Evans murdered Alana Marie Dakin.
148 The appeal concerns an issue about whether the appellant had made out a defence of insanity under s 27 of the Criminal Code (WA), whether on the facts of the case the defence of provocation was open, and if so, whether the trial judge erred in law in the directions which he gave to the jury about that defence.
Facts relating to the killing of the victim
149 On 13 November 2007 in the early hours of the morning, the appellant killed his girlfriend, Alana Marie Dakin, by slashing her neck with a knife in the living room of his home at 272 Marangaroo Drive, Girrawheen. The victim had been living on-and-off with the appellant since May 2007. The victim was a person who frequently consumed excessive amounts of alcohol and who also had problems with prescription medication. During the months leading up to the death, the relationship between the appellant and the victim was characterised by frequent incidents of domestic violence with the appellant usually being on the receiving end. A few hours after the killing, the appellant was taken into police custody and in a video record of interview he admitted that he killed the victim. He described the injuries that he had inflicted, which were consistent with the forensic evidence.
Evidence of events in the month before the killing
150 On 23 October 2007, at about 7.45 pm, police attended at the appellant's home. The victim was intoxicated and uncooperative and was taken to hospital for injuries sustained to her face. The police arrested the appellant and interviewed him. The appellant told the police that during an argument the victim had picked up a knife and the appellant punched her several times to the side of her face to get her to drop it. The police were called to the house. No charges were laid, although the victim was issued with a 24 hour police order to keep her away from the premises.
151 A week later, on 27 October 2007, the police were again called to the appellant's house. They arrived to find no-one home. They traced a call to the appellant, who said over the phone that the victim was in the house and that he may have injured her. He said they had both been drinking all day. The appellant then came to the house and told the police that he was arguing with the victim when she pulled a kitchen knife on him. He then knocked the knife out of her hand with a stick to prevent her from attacking him. The appellant told police he thought he may have broken her hand. The police found the victim unconscious in a bedroom and helped her into an ambulance, after which she was taken to hospital. No charges were laid.
152 Two days later, on 29 October 2007, the Family Protection coordinator, who was also a police officer, Heather Selma Osborne, called the appellant's home. Her task was to review the incidents of domestic violence and to offer support. She spoke to the appellant and the victim separately, telling them about various support services available and talked to each of them about safety planning.
153 In the early hours of the morning of 30 October 2007, the police were called to the appellant's house by a friend of the victim. The appellant and the victim were not found at the house, but were traced to the appellant's parents' house in Warwick. The police found the victim in a bedroom highly intoxicated. She would not cooperate with the police who had to forcefully remove her from the premises. The police issued her with a 72 hour police order. The police spoke to the appellant about the evening's events. The appellant told police that the victim was drinking heavily and they were arguing, so the appellant decided to go to his parents' house to sort it out. On the drive there, the appellant said that the victim tried to take the steering wheel and the appellant was forced to push her away several times. The police counselled the appellant about ending the relationship with the victim.
154 Later, on 30 October 2007, the appellant attended at the Joondalup Family Violence Court with his father and saw a Family Violence worker. The appellant wanted to apply for a violence restraining order against the victim. The appellant described an altercation that occurred the evening before, where the victim had become abusive and then left the house, taking the appellant's credit card (ts 1074). The appellant found the victim at a local ATM machine attempting to withdraw cash. He described how he then took her to the Warwick Police Station but on the way she began hitting and attacking him and pulling the handbrake on the car and that his response was to strike her. The appellant told the Family Violence worker that the victim had threatened to get people to hurt him. Although the appellant applied for a violence restraining order to be heard on 30 October, it could not be heard on that day and it was adjourned to be heard on 5 November 2007. The appellant did not attend on 5 November to continue with the application.
155 On 2 November 2007, the appellant contacted a Domestic Violence Unit. He asked for advice in case the victim attended his house over the weekend. He was advised about the workings of police orders and violence restraining orders and was given contact numbers for the police if he required them to attend. At the end of the conversation the appellant said he would probably stay at his parents' house over the weekend.
156 The police were then called to the appellant's house on 11 November 2007. The appellant, his mother and the victim were at the house. The victim was intoxicated. The police spoke to the appellant's mother who produced a power of attorney relating to the house and she asked for the victim to be removed from the house. No charges were laid but a 24 hour police order was given to the victim. The police arranged for a taxi to collect the victim and take her to a refuge in Bentley.
157 The victim stayed at the refuge for the night of 11 November 2007, but on the morning of 12 November 2007 she purchased alcohol and, later that day consumed it in her room at the refuge. This was contrary to the rules of the refuge and she was evicted. She left at about 6.30 pm. She was counselled about the risk of seeing the appellant. The appellant told police that the victim called the appellant and asked him to pick her up. The appellant asked the victim whether she felt safe to come home and she said that she did. As a result, he drove his vehicle and picked up the victim. He drove to a shop to buy a hamburger. The appellant told the police he asked the victim to stay in the car while he completed the purchase, but when he returned he found the victim had left the car to buy alcohol from a nearby bottle shop. She returned with two bottles of wine and they went home. There was independent evidence verifying the purchase of the wine (ts 1102). At the appellant's home, the appellant told police that he ate his hamburger and encouraged the victim to also do so, but the appellant said that she only wanted to drink the wine. The appellant told police that both he and the victim consumed the wine.
158 During the evening of 12 November 2007, the appellant spent time tending to the backyard. He started a bonfire in a metal drum and burnt off pieces of wood. Neighbours heard and saw the appellant do this while the victim wandered in and out of the house conversing with the appellant. This appeared to be normal conversation.
The appellant's account of events in the hours before the victim was killed
159 The following account of events was given by the appellant in his video record of interview to the police. There is no reason to doubt the appellant's account of what happened and at some points his evidence is corroborated.
160 At approximately 11 or 12 pm on 12 November 2007, the victim made telephone calls to her mother and stepfather in Broome and relatives in Canada. The appellant did not like her making telephone calls to Canada. At some time before 12 January 2007, he had arranged to restrict the home phone to permit telephone calls only to local numbers. The appellant asked the victim how she was making the calls to Canada and she told him she had called the telephone company and taken the restriction off. They argued about this. When the victim rang Canada she spoke to her 'Uncle Gerry' and the appellant said in the interview that he said:
Alana, you know, that's - enough's enough, you know. You're not gonna start gettin pissed and start ringing Canada ... so, um, in the end I just gave up but, ... I sat there to listen.
161 The appellant subsequently told a psychiatrist that he cut the telephone wires and police evidence confirmed that the telephone wires had been cut (ts 1463, 1016).
162 The appellant explained to the police that 'Uncle Gerry' was 'supposed' to be like a father figure to the victim because her biological father had shot himself when she was 2 years old.
163 The appellant said that 'he' (Uncle Gerry) had:
sexually advanced her on the way back and she decided that she'd had a fight with her mum and dad she's gonna ring up and put the claim on him and I - and I sort of got involved too.
That escalated into her becoming quite ... erratic and violent and ... 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 - - -
...
- - - and then, ah, all - it was some thing 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 anyone don't you think that you should allow me to get in that position because I'm a better fighter and then - - -
...
- - - 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.
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.
166 The appellant described how he slashed the victim's neck. He said (AB 44):
There was two slash marks - - -
...
- - - A forward motion and a back motion but when I actually - it was so emotional and, ah, not - not, you're doin' it but you're not doin' it.
...
And, um, then what felt like and ... it looked like it just didn't feel right and look right.
...
Ah, sort of right down like that. Sort of right down like that and that was very meaty and lots of yucky stuff coming out.
167 Further on, the appellant was questioned again about the precise sequence of events. The video record of interview records the following (AB 46 - 47):
168 He was questioned again later in the interview about the injury to the victim's arm. He said that he took her to the ground and tried to treat her injury and the questioning then continued (AB 52 - 53):
169 The appellant applied a tourniquet to help stem the blood flow from the wound on the arm. Subsequent evidence confirmed that he had made that effort (ts 1167). The appellant then said that there was further conversation between the appellant and the victim, as revealed in the following questions and answers (AB 54):
170 A little further in the record of interview the appellant described how the victim, after the cut to the arm, tried to creep up into a 'crouch position' (AB 56) and his reaction was to 'just grab the knife and sliced in that direction'. He then said (AB 56 - 57):
171 Later in the interview he described the last cut that he inflicted to the victim's throat and said (AB 58 - 59):
172 All of the foregoing questions and answers were as a result of a conversation between the appellant and Detective Senior Constable Bowers. Present at the interview was Detective Senior Constable Alan Goodger and after the questions by Detective Bowers, Detective Goodger then asked further questions. The following questions and answers were exchanged (AB 72 - 80):
173 After the victim died, the appellant then had a shower. He washed the clothes he was wearing and then drove his vehicle to his parents' house in Warwick. He told his father what he had done. His mother went to his house. The police were then called by the appellant's parents and the appellant was then interviewed by the two detectives a few hours later, commencing at 5.31 am on 13 November 2007.
174 A police witness gave evidence that a police vehicle received a call a little before 3 am on the morning of 13 November 2007 (ts 1025). The police went to the appellant's house. They arrived at the appellant's house at 2.55 am. The ambulance was already at the house. The appellant's mother was there.
175 Dr Clive Cooke, a forensic pathologist, was called to give evidence. He referred to an autopsy report which had been prepared by Dr Margolius. Dr Margolius passed away before the trial, so Dr Cooke gave evidence in her place. The report confirmed that the victim had been wounded on the right arm. There was a complete transection of veins on the right forearm and with damage to the underlying muscles and tendons (ts 1163). There was evidence of a penetrating wound in the right upper chest region and terminating superficially with a wound in the right armpit. There was evidence of a large incised wound to the victim's neck which penetrated into the left side of the neck causing partial avulsion (meaning separation) of the jugular vein and damage to the thyroid gland. There was evidence of a bloodstained red coloured pillowslip on the upper part of the right arm around the bicep region and also another pillowslip, again bloodstained, over the right forearm (ts 1167).
176 Dr Cooke gave evidence that the descriptions given by the appellant in the video record of interview fitted very well with the evidence of the wounds that were found during the autopsy (ts 1173). Dr Cooke's evidence was that the penetrating wound, which was consistent with the first wound inflicted to the neck area as described by the appellant, would not have been fatal. It did not cut any major blood vessels, arteries or veins, but that its appearance would give a lay person the impression that it might be fatal (ts 1174). The slashing injury which sliced the jugular vein was a fatal wound. Dr Cooke's opinion was that the victim could only have survived for a matter of minutes after the injury was inflicted (ts 1175). As to the wound to the arm, Dr Cooke said that such a wound could be fatal but it would take longer to bleed to death compared with the cut to the neck, but that the application of a tourniquet 'should be quite easily achieved and be quite successful' in preventing death altogether (ts 1180).
Medical or related evidence concerning the appellant's mental condition
177 The appellant's youngest brother, Wayne, gave evidence that in about 1999 when he was about 14 or 15 years old, the appellant began doing 'trancy dances and hand movements' which were 'intimidating' (ts 1197). The appellant began telling the family that 'things were coming through the television' and that he was receiving messages from 'Oprah Winfrey' (ts 1197). He found the appellant's behaviour unusual and alarming and so embarrassing that he would not have friends around. He gave evidence that the appellant had been admitted to hospital for psychiatric treatment around 1999 or 2000 (ts 1200).
178 Evidence revealed that the appellant was admitted to hospital five times before 13 November 2007. The first was in August 1999 when he was 23 years old. The second was again in August 1999, followed soon after by a third admission in October 1999. The fourth was on 29 April 2003. The fifth admission was in July 2005. He was admitted to hospital on two occasions after 13 November 2007. These were on Christmas Day 2007 and in March 2008.
179 On the first four occasions when he was admitted to hospital, the diagnosis was that he was suffering from psychosis. On the fifth occasion he was diagnosed with bipolar disorder, with mixed mania and depression. In the months before 13 November 2007 and on that date he was not treated with any antipsychotic drugs.
180 There was also the evidence of three psychiatrists of what they observed when they interviewed the appellant in prison.
181 The defence disclosed that it intended to seek to prove that the appellant was insane. Reliance was placed on the third limb of s 27 of the Criminal Code. Section 27(1) reads:
A person is not criminally responsible for an act ... on account of unsoundness of mind if at the time of doing the act ... 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 ...
182 The relevant act was the act of slashing the victim's neck on the second occasion. The appellant called Dr Walton and Dr Pascu. The State called Dr Brett to give evidence in rebuttal. All three doctors were qualified to give evidence and there was no objection to their qualifications. All three psychiatrists viewed the record of interview and were made aware of the prosecution's statement of facts, the medical records relating to his admission to hospital and the evidence given by Wayne Evans. Dr Walton interviewed the appellant once on 18 July 2010. Dr Pascu was requested by the court to provide a report, and she interviewed the appellant on 19 January 2009 and on 31 July 2010. She saw him again during the trial on 10 September 2010. Dr Brett interviewed the appellant on 23 October 2008 and 30 October 2008.
183 The evidence of the three psychiatric witnesses was recorded and transcribed, and that evidence covered 334 pages of transcript. Drs Walton and Pascu diagnosed the appellant as suffering from schizophrenia. They also expressed the opinion that he suffered from episodes of psychosis and that he was psychotic at the time he killed the victim.
184 Both Dr Walton and Dr Pascu agreed that neither the diagnosis of schizophrenia, nor the opinion he was suffering from a psychotic episode on 13 November 2007, meant that it followed inevitably that the appellant had lost the capacity to know that he ought not do the acts causing the death of the victim (ts 1258, 1260, 1375). Both agreed that a person with schizophrenia could have psychotic episodes and periods of remission, and that a person suffering from psychosis could still have the capacity to know that he ought not to do an act which causes the death of a person. Nevertheless, Dr Walton and Dr Pascu expressed the opinion that, based on all the evidence including what they observed in the record of interview, he had lost the capacity to know that he ought not do the acts which caused the victim's death (ts 1249, 1375).
185 Dr Brett expressed the opinion that, based on all the evidence and based on the record of interview, the appellant had not lost the capacity to know that he ought not to do the act causing the death of the victim (ts 1493). Dr Brett agreed that the appellant was suffering from mental illness at the time of the offence, and for many years dating back to 1999, and that he was still suffering from mental illness when he interviewed the appellant (ts 1525). However, Dr Brett disagreed with the diagnosis of schizophrenia by Dr Walton and Dr Pascu. His diagnosis was a differential diagnosis between 'schizotypal disorder' and 'psychotic disorder not otherwise specified'. He agreed that the appellant had psychotic episodes and that the evidence of his admissions to hospital and the evidence of his brother Wayne revealed that he had psychotic episodes. However, his opinion was that the appellant was not psychotic on the night of the killing.
186 All three psychiatrists gave considerable weight to the record of interview because it was so close in time to the relevant events. Dr Walton expressed the view that the appellant did not, in the record of interview, give a 'coherent chronological account' of the relevant events (ts 1230). Dr Pascu was of the same view (ts 1429). Dr Walton referred to the appellant's flat affect or lack of emotion, what he considered to be his disorganised conversation and his references to spirituality (ts 1231, 1241, 1346). These appear to have been diagnostically significant in forming his opinion about whether the appellant was psychotic. Dr Brett, on the other hand, considered that the appellant did, on occasion, show some emotion, that he was not significantly disordered in his conversation and that he did give a coherent account of events (ts 1514, 1539).
187 Counsel for the appellant at trial informed the court that it would be submitted to the jury that the appellant was provoked into killing the victim because viewed in the light of the history of the relationship, there were wrongful acts or insults or words emanating from the victim which provoked the appellant.
188 At the trial, counsel for the appellant (who is not counsel appearing on the appeal) identified the words and conduct of the victim, as related by the appellant in the record of interview, which amounted to provocation. These were: the telephone call made to Canada in circumstances where the appellant had previously taken steps to prevent this; the assertion by the victim that she was a 'better fighter' than the appellant; that the victim had challenged the appellant to cut her with the knife; that she had proffered her arm to be slashed with the knife; that after the appellant had slashed the victim's arm with the knife she said to him that she was the 'stronger person'; and the statement by the victim, after her arm had been slashed, that the appellant was a 'pussy' and that he wouldn't kill her, that he did not have 'the guts to kill her', that she would 'always be stronger' than the appellant, and that the victim could 'kill a human' but the appellant could not. At the hearing of the appeal, counsel for the appellant again relied upon the evidence just referred to and added that after the appellant slashed the victim's arm she attempted to get up or 'crept up in a crouch position' (AB 56).
The trial judge's directions to the jury - insanity
189 The trial judge referred to the evidence of the experts and said (ts 1599, 1600 and 1601):
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.
190 The trial judge then recited some passages of the evidence of the experts and then he concluded, at ts 1607 - 1608:
So there you have it. It's not a question of two against one but rather the [question is] - on the question of unsoundness of mind are you persuaded that it was more probable than not that at the time he did the act which caused death the accused was in the grip of a mental illness, a psychotic episode, and that that deprived him of the capacity to know, to understand, to comprehend that what he was doing was wrong according to the standards of ordinary people.
In that, as I say, to reach a conclusion of that in the light of contradictory psychiatric evidence you will eventually need to come down on one side or the other. All I can say is you should not lightly reject the evidence of Dr Pascu and Dr Walton who contend that there was such a deprivation unless you are firmly persuaded that their opinion should be rejected. That is a matter for you. The psychiatric evidence really can be evaluated best by you by the facts as you find them and one of the facts is the very important record of interview but it is not an arbitrary decision that you make, it is one based on the evidence.
191 The appellant does not allege that any error was made by the trial judge in his directions to the jury about the insanity issue.
192 Before summing up, counsel discussed the issue of provocation. Counsel for the appellant contended that there was evidence of provocation and that was conceded by counsel for the State. The trial judge referred to the evidence which the appellant's counsel at trial had identified as supporting the submission that the appellant was provoked, and the trial judge then directed the jury in the following terms (ts 1593 - 1596):
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.
(The word 'would' has been italicised because the appellant alleges the use of the word where italicised reveals error).
193 After the jury had retired to consider its verdict, it sent a note to the trial judge with the following question:
With regard to provocation can you please explain the significance of mental illness, intoxication, medication, drugs, et cetera, when applying the ordinary person test.
194 After hearing submissions from counsel in the absence of the jury, the jury was returned to the courtroom, and after reading aloud the jury's question the trial judge said (ts 1619):
I propose to answer that - it's a very fair question and it is one which lawyers have grappled with for some time so I have the advantage of High Court authority and Court of Appeal authority in answering.
I propose to answer it in two parts. First, when you are considering the content and the extent of any provocation that you find to have been proffered to the accused man Evans then you assess that from his point of view, that is, the characteristics which he might have, particularly his age, sex and in this case his mental instability as you find it to be. So when you are assessing what, if anything, you find to be the provocative wrongful act or insult proffered to him you assess the content and extent of that on him as you find him to be, including his characteristic of mental illness.
When you apply the ordinary person test, to call it that - would an ordinary person have reacted - the ordinary person is an ordinary sober person of normal mental health. Does that explain the question sufficiently? Anything counsel would wish to add?
195 The jury then retired and returned to the courtroom to return a verdict of guilty to the charge of murder. This resulted in the judge recording the conviction which is the subject of appeal.
2.1 The jury ought to have been satisfied, on the balance of probabilities, that based on the psychiatric evidence led in this case, the accused was not criminally responsible for his acts by reason of him being in such a state of mental impairment as to deprive him of capacity to know that he ought not to do those acts.
197 Because ground 2 requires the court to review the whole of the evidence, ground 2 will be dealt with first.
198 This ground is an appeal pursuant to s 30(3)(a) of the Criminal Appeals Act 2004 (WA). That section provides that the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. Counsel for the State properly conceded that if this ground succeeded, then there was no cause for this court to consider whether it should dismiss the appeal under s 30(4) on the basis that there was no substantial miscarriage of justice.
199 The function to be performed by this court in determining this ground of appeal was stated in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493. There, four members of the High Court said:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
200 This test has been restated to reflect the terms of s 30(3)(a) of the Criminal Appeals Act. In MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 623 - 624, three members of the High Court stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as being 'equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported, having regard to the evidence"'. These statements about the function of the court have recently been affirmed in SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571 [11] and [12] (French CJ, Gummow & Kiefel JJ).
201 The starting point in the application of the statutory provision is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. In determining an appeal under the statute by applying the test set down in M and restated in MFA, the court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality': SKA [14]. In reaching its conclusion the task of the court is not to consider, as a question of law, whether there is evidence to support the verdict. Questions of law are separately dealt with under s 30 of the Criminal Appeals Act. The question is one of fact which the court must decide by making its own independent assessment of the evidence: SKA [14]. In making that assessment, the question to be answered by the appellate court is whether 'it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt': Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113] (Hayne J, Gleeson CJ & Heydon J agreeing).
202 In relation to ground 2, the question is not whether this court has a reasonable doubt about the guilt of the appellant. In most criminal cases, that will be the relevant question. Thus in SKA [13], the joint reasons refer to M, where the court had said that in most cases 'a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In M (494), it had also been said that it is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
203 However, in this case, and in relation to ground 2, the question is not whether the court has experienced doubt. This is because in relation to the issue of insanity, the onus of proof is on the accused person. To succeed in the appeal the appellant must satisfy this court that a reasonable jury who had applied their minds properly to the evidence in the case, must have been satisfied on the balance of probabilities that the appellant lacked the relevant capacity. If this court is not so satisfied, then the second ground of appeal should be dismissed. The President has expressed the test in negative terms [112]. In my view, the test or question which I have couched in positive terms, and the test formulated by the President, will always produce the same outcome.
Assessment of the evidence concerning insanity
204 This is not a case like Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659 or Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138, where the psychiatric evidence about lack of capacity was not in dispute. In Mizzi, there were three psychiatrists called by the prisoner and there was no evidence called by the Crown in rebuttal. All three psychiatrists deposed to the opinion that the prisoner suffered from a disease or disorder of the mind, namely 'paranoiac schizophrenia' as a result of which he had stabbed the victim. The three expert witnesses considered that in consequence of this disease or disorder, he had no appreciation of the wrongness of his act and that it might also have been the case that he had not a full or sufficient appreciation of the nature and quality of his act. Counsel for the Crown in Mizzi cross-examined the three psychiatrists and put it to them that, having regard to the fact that the appellant went to the police station immediately after killing the victim, and the statement he there made, he must be taken to have been aware that his act was wrong.
205 In Mizzi, the experts were 'independent', of 'undoubted qualification' and they were in 'complete agreement' as to the prisoner's mental state. The case was simply one in which the dispute was between the view which the experts took of the matter and the view which prosecuting counsel was putting and was a view which laymen would, or might express. The error in Mizzi's case was about the directions given to the jury, but it is clear from the reasons of the High Court that in such a case it is necessary for a jury to guard against assessing the prisoner's conduct by 'the kind of reasoning which a sane mind would pursue' (663). Similarly, this court must guard against such reasoning.
206 In Hone, there was only one psychiatric expert witness called. That witness expressed the opinion that the accused was mentally impaired within the meaning of s 27 of the Criminal Code and the court held that the trial judge, who was sitting without a jury, erred by rejecting the uncontradicted evidence of the expert without any proper foundation for doing so.
207 In this case, it was necessary for the jury, and it is necessary for this court, to determine whether on the whole of the evidence and taking into account the conflicting evidence of the experts, that on the balance of probabilities, the appellant lacked the relevant capacity at the time the killing occurred.
208 If only Dr Walton had given evidence, then although I have some doubt about one aspect of his non-expert observations about the record of interview, I would have felt compelled to accept his opinion that, on the balance of probabilities, the appellant lacked the relevant capacity. The aspect of Dr Walton's evidence to which I refer is revealed in the following question and answer in examination-in-chief. The question and answer were:
Would you, having seen the interview, describe it as being a coherent chronological account of the relevant events?---Absolutely not. It's the opposite of that (ts 1230).
209 Dr Walton also referred to his view that the appellant became 'muddled up', that sometimes he was asked straight-forward questions and would start to answer it and then 'drift ... off to the [wide] blue yonder' (ts 1231) and that 'at times' the interview was 'just incomprehensible to me at least' (ts 1231). I have difficulty in understanding why Dr Walton thought that the appellant did not in his interview provide a coherent, chronological account of the events which must have occurred. The appellant's description of the injuries he inflicted was supported by the post-mortem evidence. Dr Cooke said, as already mentioned, that the descriptions given by the appellant fitted very well with the evidence of the wounds that were found during the autopsy (ts 1174). It is true that on some occasions the appellant wandered from answering the question but that is a different observation from the observation about the clarity of the appellant's account of the events of the evening. My view is that the appellant did give a reasonably coherent chronological account of events. Nevertheless, even with that view I would not have rejected Dr Walton's opinion about capacity if he was the only expert witness who gave evidence.
210 Similarly, if Dr Pascu only had been called and her evidence had not been contradicted, I would have had no basis for rejecting her opinion that the appellant lacked the relevant capacity at the time of the killing.
211 However, Dr Brett expressed the opinion that the appellant did not lack capacity. If Dr Brett had been the only witness, I would have felt compelled to accept his opinion.
212 All three witnesses agreed that the appellant had a mental illness, so it must be accepted that this was so. All three agreed that he suffered from psychotic episodes. That must be accepted. The fact that Dr Walton and Dr Pascu were prepared to label the mental illness in a way that Dr Brett was not prepared to label it, does not help resolve the issue between them about whether the appellant lacked the relevant capacity. Further, as already mentioned, Dr Walton and Dr Pascu agreed that just because a person has schizophrenia and just because a person is psychotic, does not determine whether the person lacks the relevant capacity at any particular time.
213 Each of the three witnesses simply asserted that the appellant either had capacity or did not have the capacity. After expressing their opinions, neither Dr Walton nor Dr Pascu was immediately asked to state the foundation for the opinion. It is necessary to read all the transcript of their evidence and to draw out what they relied on, either in the medical history, during their interviews or from the other evidence or the DVD record of interview. Dr Walton referred to a lack of emotional expression or 'flatness', the wandering answers, the references to spirituality or religion of a delusional intensity, his impression that the appellant did not give a coherent chronological account of events, the impressions he gained during his interview of the appellant, the evidence of the appellant's brother and the medical evidence. Dr Pascu made similar references.
214 Dr Pascu was sarcastic about the proposition that the appellant on the video record of interview provided a coherent, chronological narrative of events. She said she would 'like to assess the person who would see that as a coherent, appropriate, logical, spontaneous and good account of the events' (ts 1429). This question was put during examination-in-chief. Counsel for the appellant asked why Dr Pascu said that it was wrong (as Dr Brett said) that the interview was a coherent, chronological narrative of events. In my view, the answer she gave provided no satisfactory explanation. Dr Pascu said:
Because I think that what we have heard in analysing each word by itself, attaching meanings to the various words, what we thought that maybe Mr Evans was saying, adding a few commas and maybe removing a few words, that's not the purpose of a psychiatric assessment of a person's thought process. That is more a reflection of a joint, combined effort to make it sound good (ts 1429).
215 Dr Pascu then gave a longer answer which made the position no clearer. The question and answer were as follows:
If I can play devil's advocate and perhaps just put this to you: when you watched the video there are clearly times when Mr Evans makes sense, talks about things that it would seem did happen and gives reasons that perhaps a normal person, not mentally ill, might give as reasons for what they did. How do you explain all of that?---Because people who are psychotic it doesn't mean that they are vegetables, that they don't know what's going on around them, they don't observe things around them. They can still eat, they can still drink, they can still wash. So the mental state of a psychotic person, not always, can fluctuate so they would have periods when they come across as reasonably normal if you don't dig deep inside. If you just take on, like, face value what they say, three words, and they sound right, you know, it might be right. That's where at times when I was watching the interview I have to point it out that I know that the transcript of a video interview sometimes can be a bit dodgy. It is not always very reflective of the exact interview so I watched the interview two or three times and I made my observations based on the interview because sometimes in the actual transcript you see the words are missing. So just going back to your question this was an example of a bit of a circumstantiality. I think that looking at the interview you observe that people can give answers. Again, if you let him talk for a long time, which the police sometimes did for a reasonable time then all the thought disorder comes out. If you ask them short questions where you expect a yes or no answer, sometimes he does that, sometimes he doesn't. So all these together sort of suggest that this person is thought disordered (ts 1429).
Thus it seems that Dr Pascu considered that evidence of thought disorder appeared because some questions were not answered directly or were discursive.
216 The long, somewhat discursive answer given by Dr Pascu does not satisfactorily explain to me why she considered that the appellant did not give a coherent, chronological account of events. However, as mentioned earlier, despite that, if only Dr Pascu had given evidence, I would have felt compelled to act on her opinion about the appellant's lack of capacity.
217 Dr Brett expressed his opinion that the appellant was not deprived of the relevant capacity early in his examination-in-chief. He said that he arrived at his conclusions based upon two examinations of the appellant, from 'collateral' information he was given and from 'a lot of thinking about the case and the possible scenarios' (ts 1493). The 'collateral' information included the DVD of the record of interview which Dr Brett considered did not reveal any florid thought disorder. He considered that the interview revealed no more than somebody who is naturally confused following an extremely stressful event (ts 1510). When he interviewed the appellant, he considered that the spiritual beliefs he expressed were not held with delusional intensity (ts 1505). He considered, having viewed the DVD interview, that the appellant did not present as psychotically thought disordered (ts 1508). Dr Brett considered that the appellant during the police interview was 'coherent' and that his interview was 'chronological in its delivery' (ts 1540). Dr Brett considered that his references to spirituality were not 'extraneous' or introduced in a 'non-responsive way to questions that were asked of him' (ts 1540). I have no basis for rejecting Dr Brett's opinion that the appellant did not lack capacity.
218 The result is that while I have no basis for rejecting the opinion of Dr Walton or Dr Pascu, I likewise have no basis for rejecting Dr Brett's opinion about the appellant's capacity.
219 In summary, there was unanimous evidence from the psychiatrists that the appellant suffered from a mental illness and that he did suffer from psychotic episodes. Whether he was psychotic on that evening and whether he did or did not lack the capacity to know that the act of slashing the victim in the neck was wrong, is a matter of controversy. On my assessment of the evidence, I am not able to conclude, on the balance of probabilities, that the appellant lacked the relevant capacity.
220 On that basis it was also open to the jury to conclude that they were not satisfied on the balance of probabilities that the appellant lacked the capacity to know that he ought not to slash the victim's throat with the knife. I would, therefore, dismiss ground 2.
221 If the judge's address to the jury reveals error, but there was, on the evidence, no justification for leaving provocation to the jury, then there would be no miscarriage of justice: Lee Chun-Chuen v The Queen [1963] AC 220, 235; Moffa v The Queen [1977] HCA 14; (1977) 138 CLR 601, 617. In other contexts there are statements that irregularities not affecting the outcome of a criminal trial are not miscarriages at all. See for example TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [79]; Suresh v The Queen [1998] HCA 23; (1998) 102 A Crim R 18; Sabourne v The State of Western Australia [2010] WASCA 242 [34]. In TKWJ at [79] McHugh J referred to 'material irregularity' and in Suresh [42], Kirby J referred to irregularities going 'beyond the trivial or irrelevant'. It is logical that a wrong direction in relation to a point which is not relevant to the case would not justify the setting aside of a conviction and would not constitute a miscarriage unless it had the potential to, or did give rise to confusion in the minds of the jurors. There was no risk in this case that the direction about provocation had the potential to give rise to any confusion because it was a clearly compartmentalised aspect of the case, and if there was no evidence of provocation, then errors by the trial judge in his provocation direction could not have affected the outcome.
222 In my opinion, provocation should not have been left to the jury as explained at the end of these reasons. I should add that it matters not that the parties were in agreement that provocation should be left to the jury or that the trial judge decided that it should be left to the jury. There is a practical difference between the approach of a trial judge and that of an appellate court. A trial judge is naturally reluctant to withdraw from a jury any issue that arguably should be left to them. See Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58, 68. The task of this court is not to act pragmatically, but to determine the issue with 'exactitude': Masciantonio.
223 However, in case my conclusion is wrong, I will deal with the appellant's submission that the trial judge's directions reveal error.
When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.
225 A definition of 'provocation' appears in s 245 of the Code. So far as might be relevant, the section reads:
The term 'provocation' used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person ... to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered.
226 There has been controversy in this State about whether 'provocation' as used in s 281 is to be interpreted as defined in s 245. This is discussed at length in Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 by Steytler J [24] - [36]. In short, there are Western Australian authorities holding that s 245 does provide the definition for the word 'provocation' as used in s 281. Steytler J's reasons reveal that there is Queensland authority dealing with the equivalent provision in Queensland which is to the contrary and there is High Court authority (Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209) agreeing with the Queensland approach. Then following Kaporonovski, Steytler J refers to two cases in Western Australia where the court did not consider it necessary to decide whether it would overrule the earlier Western Australian authorities, and a further High Court decision where it had the opportunity to consider the Western Australian position but found it unnecessary to do so. Steytler J concluded at [33] in Hart, that this 'rather unsatisfactory state of the law remains the position today'. His Honour then added that he found it difficult to see how the definition in s 245 could be available because it applies only to offences in which an assault is an element and is not available merely because on the evidence the offence charged in a particular case is shown to have involved the commission of an assault. It was not argued before the court in Hart that the earlier Western Australian decisions should not be followed.
227 Counsel for the appellant in this case contended that the common law applied to provide the meaning of provocation in s 281. However, he stated that he was not asking the court to overrule the Western Australian line of authorities which suggested that s 245 did apply. He did not argue that there was any significant difference between the common law view of provocation and the definition in s 245. This is perhaps the last time the issue will come before this court because s 281 has been repealed. See Criminal Law Amendment (Homicide) Act 2008 (WA), s 12. Section 281 only applies in this case because of transitional provisions. See Criminal Code, sch 1 cl 2(2).
228 In my opinion it is necessary to decide whether the common law applies or whether s 245 provides a definition. This is because the High Court has made it clear that if a statutory provision applies, then close attention has to be paid to the actual words of the statutory provision: Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 320. The court in Stingel noted a perception in the authorities that the common law and the statutory provisions 'tend to interact and to reflect a degree of unity of underlying notions'. The court said that while it shared that perception, it thought it preferable to keep the focus of consideration firmly fixed upon the statutory provisions.
229 In my opinion, the Western Australian authorities referred to in Steytler J's judgment in Hart, holding that s 245 provides the definition of provocation in s 281, should be overruled. Section 245 only applies where assault is an element of the offence. Assault is not an element of the offence of murder. Just because the facts reveal that the murder resulted from an assault is not to point. In my opinion, the reasoning of the majority of the High Court in Kaporonovski, the reasons of Kennedy J in Censori v The Queen [1983] WAR 89 and the obiter view expressed in Hart at [33] is to be preferred. The earlier Western Australian cases of R v Scott (1909) 11 WALR 52; Dunstan v The Queen (1931) 33 WALR 118, Sreckovic v The Queen [1973] WAR 85 and Mehemet Ali v The Queen (1957) 59 WALR 28 holding that the provision equivalent to s 245 applies to the section the equivalent of s 281, are plainly wrong.
230 At common law, provocative conduct must be such that it is 'capable' of causing an ordinary person to lose self-control and to act in the way in which an accused is alleged to have done. The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure: Masciantonio v The Queen (66). The test involves an objective aspect, that is to consider whether the provocation was 'capable' of causing an ordinary person to lose self-control and to act in the way that the accused did, and a subjective aspect which is that the provocation must actually cause the accused to lose self-control.
231 The appellant's oral and written submissions reveal that there are two points to the ground of appeal. The first point alleges that the trial judge erred in his repeated reference to whether the provocative acts and words relied upon 'would' cause an ordinary person to lose self-control. The appellant alleges that this was an erroneous direction. The respondent agrees that it was erroneous. The use of the word 'would' was erroneous. Provocative conduct must be 'capable' of causing an ordinary person to lose self-control. The question about whether a person is 'capable' of doing something is different from asking whether they 'would' do that thing. Thus, the trial judge erred in directing the jury that they had to consider whether the provocative acts 'would' cause an ordinary person to lose self-control: to like effect see Michael v The State of Western Australia [2007] WASCA 100 [29] - [30].
232 The second allegation of error raises a rather more complicated point. The complaint is again about the direction concerning the objective aspect of the test of provocation. The High Court said in Stingel at (324) that 'the objective threshold test' was not intended to be applied in a vacuum or without regard to such of the accused's personal characteristics, attributes or history as serve to affect the gravity of the particular wrongful act or insult which is said to amount to provocation. The central question posed by the objective test, that is whether the acts or words were sufficient or capable of provoking the accused to act, is not to be viewed in isolation: Stingel (325). In Stingel the court said:
[T]he content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. For example, any one or more of the accused's age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult. Indeed, even mental instability or weakness of an accused could, in some circumstances, itself be a relevant consideration to be taken into account in the determination of the content and implications of particular conduct. For example, it may be of critical importance to an assessment of the gravity of the last of a series of repeated insults suggesting that the person to whom they are addressed is 'mad' to know that that person has, and understands that he has, a history of mental illness (326).
233 According to the High Court in Stingel, the objective standard and its underlying principles of equality and individual responsibility are not undermined when such factors are taken into account 'only for the purpose of putting the provocative insult into context' (326). The question is whether the trial judge failed to make this point clear to the jury. The submission was that in determining the gravity of the acts and words said to amount to provocation, it was necessary to consider the fact that the appellant suffered from a mental illness.
234 In the trial judge's directions to the jury, the jury was asked to consider whether an ordinary person 'in the position of the accused' would lose his power of self-control. Putting aside the incorrect use of the word 'would', the jury was told that they were to consider an ordinary person in the position of the accused. When the jury asked the trial judge to explain, with respect to provocation, the significance of mental illness, intoxication or medication when applying the ordinary person test, the trial judge gave the redirection referred to above. In this redirection, the trial judge correctly directed the jury that when considering the content and extent of any provocation, that was to be assessed from the point of view of the accused, taking into account the characteristics which that person might have, including 'his mental instability as you find it to be'. Further, the trial judge then correctly explained that when it came to the reaction to such provocation, that this had to be measured by an ordinary sober person of normal mental health.
235 There was no error in the redirection. The jury was correctly directed on this aspect of the case.
Was there evidence of provocation capable of causing an ordinary person to lose self-control
236 It may be accepted that a person with the appellant's mental illness may have been inclined to regard the acts and words relied upon as more provocative than a person without a mental illness. The tumultuous relationship and the domestic violence might have led a person with mental illness to regard the words spoken by the victim and identified by the appellant, including the assertions by the victim that she was the better fighter and that the appellant was a 'pussy', as provocative. Likewise, the acts relied on, including the proffering of the victim's arm, daring the appellant to cut the victim with the knife, might have been regarded as provocative by such a person. For the purpose of argument, I will assume that such a person could have regarded the words and conduct in context as 'gravely' provocative.
237 However, when one turns to the proportionate response to those provocative acts and words, it is necessary to consider how an ordinary person unaffected by mental illness or alcohol could have reacted. An ordinary person could not, merely because the words referred to were spoken, react by slashing the neck of the victim. Words alone may constitute provocation, but the words must be of an extreme and exceptional character: Moffa v The Queen (616). The words spoken did not have that character. It is impossible to hold that the evidence of any of the words spoken raised an issue of provocation fit to be considered by the jury, even on a view of the evidence most favourable to the appellant: Masciantonio v The Queen (67 - 68).
238 The proffering of the victim's arm did not at all raise an issue of provocation fit to be considered by the jury. In any event, the act which has to be considered is the act of slashing the victim's neck. The proffering of the arm occurred 10 minutes before that occurred. After the victim had proffered her arm and the appellant had slashed her arm, he dropped the knife and then took steps to try to staunch the flow of blood, having realised the seriousness of the wound he had inflicted. He was then no longer deprived of self-control as a result of the proffering of the arm. All that then provoked him were the words spoken by the victim while the appellant was attempting to staunch the flow of blood from the arm and none of the words spoken, even taking into account the history of domestic violence directed by the victim at the appellant, could have caused any ordinary person to form an intention to inflict grievous bodily harm by slashing the victim's neck. No ordinary person could be provoked to cut a person's throat merely because the person struggled to get up (to 'crouch') after being seriously wounded. There was no evidence which taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that the elements of the defence of provocation had been negatived: Braysich v The Queen [2011] HCA 14; (2011) 85 ALJR 593 [36].
239 For those reasons, provocation should not have been left to the jury. The erroneous direction identified earlier therefore gave rise to no miscarriage of justice. The result is that neither ground of appeal has merit. Leave to appeal should therefore be refused.
240 MAZZA J: I have read the draft reasons of McLure P and Pullin JA.
241 For the reasons given by McLure P, I agree that ground 1 has been made out, but not ground 2. Consequently, I too would allow the appeal, set aside the verdict of guilty and order a retrial.
242 The only comment I wish to make concerns the test which this court must apply when it is alleged that a verdict of guilty is unreasonable or cannot be supported by the evidence where the accused bears the onus of proving a defence on the balance of probabilities. Although their Honours have expressed the test in different terms, I do not see the differences as being material.
(2011) 85 ALJR 593
(2003) 27 WAR 441
(1973) 133 CLR 209
(2007) 230 CLR 559
(1994) 181 CLR 487
(1996) 190 CLR 348
(1995) 183 CLR 58
(2002) 213 CLR 606
(1960) 105 CLR 659
(1977) 138 CLR 601
(1984) 36 SASR 283
(2011) 85 ALJR 571
(1990) 171 CLR 312
(2002) 212 CLR 124
(1979) 142 CLR 531