Court of Appeal (WA)|1999-09-10|Before: Mr J, Burt CJ, Ipp J, Wallwork J, Murray J

Garrett v R [1999] WASCA 169 (10 September 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GARRETT -v- R [1999] WASCA 169

Criminal law and procedure - Insanity - Directions to jury when sanity in issue - No error in failing to direct jury in respect of the applicant's delusional beliefs and the issue of self defence.

Criminal law and procedure - Sentencing - Wilful murder - Sentence of life imprisonment with a minimum term of 18 years not an erroneous exercise of discretion.

Australian Coal v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Weng Keong Chan (1989) 38 A Crim R 337

Zoran Vasich v R, unreported; CCA SCt of WA; Library No 980038; 6 February 1998

1 IPP J: The applicant was convicted of wilful murder. The fundamental issue at the trial, as it was put by the learned Judge to the jury, was "whether, because of [the applicant's] state of mental impairment, he was deprived either of the capacity to understand what he was doing or of the capacity to control his actions or of the capacity to know that he ought not do the acts".

2 The trial Judge did not give the jury clear directions as to the order in which they should determine the various issues that arose. This omission forms the basis for the first three grounds of appeal. Essentially, it was argued on the applicant's behalf that the jury should have been directed as follows:

(a) They should determine, firstly, whether the prosecution had proved beyond reasonable doubt "that each element of wilful murder" had been made out.

(b) Should they conclude that wilful murder had been established, they should proceed to consider the questions raised concerning the sanity of the accused. In particular, in that event, they should consider whether the accused should be found not guilty on account of unsoundness of mind.

(c) Should their answer to the question in sub paragraph (a) be in the negative, they should proceed to consider whether the prosecution had proved, beyond reasonable doubt, that each element of murder had been made out. If so, they should consider whether the accused should be found not guilty on account of unsoundness of mind.

(d) Should the jury find the elements of murder not proved, they should then go on to consider whether the prosecution has established each element of the offence of manslaughter. If so they should consider whether the accused should be found not guilty on account of unsoundness of mind.

(e) Should the jury find that the accused is not guilty of wilful murder, murder or manslaughter, he should be acquitted of all offences.

(f) Should the jury find the accused not guilty of any one of the counts of wilful murder, murder, or manslaughter, by reason of unsoundness of mind, then s 653(1)(b) applies and the jury should state, as it was put by Burt CJ in Perkins v R [1983] WAR 184, whether, on account of the unsoundness of mind, "they for that reason have acquitted him of wilful murder, murder or of manslaughter".

3 I do not agree with these submissions. In particular, I do not agree that the jury were required to determine whether each (and every) element of the offence in question had been proved before considering the question of sanity. In my opinion, the jury should have approached their task in accordance with what was said by the High Court in Hawkins v R [1994] HCA 28; (1994) 179 CLR 500 at 517, namely:

"In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved (the latter by reference either to s 13 or s 16 [of the Tasmanian Criminal Code] before there is any issue of the specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused's mental condition at the time when the incriminated act was done fell short of insanity under s 16."

Section 13(1) of the Tasmanian Criminal Code provided: "No person shall be criminally responsible for an act, unless it is voluntary and intentional ...". Section 16(1) is akin to the first paragraph of s 27 of the Criminal Code in this State.

4 According to the High Court, therefore, the jury must first determine "what did the accused do and is he criminally responsible for doing it?" These are the "basic questions". The issue of specific intent is to be addressed only when the "basic questions are answered adversely to an accused". That is why "the question of insanity falls for determination before the issue of intent". It follows that if the basic questions are answered favourably to the prosecution, the jury must consider whether the accused person should be found not guilty on account of unsoundness of mind. Should the jury determine that such a verdict should not be delivered, they should go on to consider the other elements of the offence (and, in particular - in a case of wilful murder - the issue of specific intent). I appreciate that there are dicta to the contrary in Nolan v R, unreported; CCA SCt of WA; Library No 970260; 22 May 1997. These dicta were, however, expressed obiter, and with great respect to the members of the Court concerned, I consider that they are not in accord with what was said in Hawkins v R.

5 Section 653(1) of the Criminal Code (which was inserted by the Mental Health Consequential Provisions Act 1996 and which became operative on 13 November 1997) deals with the jury's task when the question arises whether an accused person was not criminally responsible for an act or omission on account of unsoundness of mind. Section 653(1)(a) requires the jury in such circumstances to return a special verdict as to "whether they found the person not guilty on account of unsoundness of mind" at the relevant time. Section 653(1)(b) requires the jury, if they so acquit the person, to return a special verdict as to "the offence the person was acquitted of". As Wallwork J has pointed out, s 653(1)(b) gives legislative effect to the observation by Burt CJ in Perkins v R [1983] WAR 184 (at 189) that:

"[O]n an indictment charging wilful murder the jury if they acquit the accused 'on account of such unsoundness of mind' should be asked to say whether they for that reason have acquitted him of wilful murder, murder or of manslaughter."

The learned Chief Justice observed that if, for example, in a case of wilful murder, the jury were not persuaded that the accused intended to cause death, the accused would be "entitled to an unqualified verdict of not guilty of wilful murder". His Honour said:

"It is, I think, important that the Executive should know the true position and it is more important that there should exist no ground for supposing that a man has committed, although not criminally responsible for, a crime for which the jury has found him to have been not guilty."

6 In my view, s 653(1)(b) is not inconsistent with the views expressed by the High Court in Hawkins v R. The High Court dealt with the order in which the jury should consider particular issues before coming to their verdict. Section 653(1)(b) stipulates particular verdicts that should be given by the jury in the circumstances set out in the section. In my view, this Court is bound by the views of the High Court in Hawkins v R, and the procedure set out therein should be followed. Of course, the procedure laid down in s 653(1)(b) should also be followed. This means that if the jury bring down a verdict of not guilty on account of unsoundness of mind, they should then be asked whether for that reason they have acquitted the accused person of wilful murder, murder or manslaughter.

7 The procedure described in Hawkins v R may result in a jury not applying their mind to whether an accused person is guilty of wilful murder or murder before deciding that the accused is not guilty on account of unsoundness of mind. It may be thought that it would then be anomalous for the jury to have to consider whether, notionally, the accused would have been found guilty of wilful murder or murder had not the not guilty verdict based on insanity been brought down. I also have some doubt as to the practical need to know what the jury's verdict would otherwise have been. But this is what s 653(1)(b) directs.

8 The learned trial Judge did not follow the above procedure. I agree, however, with Wallwork J, that this did not give rise to a miscarriage of justice.

9 Save to the extent set out above, I agree with the reasons to be published by Murray J.

10 WALLWORK J: The facts and background of this matter are set out in the reasons of Murray J. I will not repeat them except as is necessary for these reasons.

11 Section 653(1) of the Criminal Code (WA) provides:

"653 (1) If on the trial of indictment of an accused person the question arises whether the person was not criminally responsible for an act or omission on account of unsoundness of mind, the jury are required, if they find the person not guilty, to return a special verdict as to -

(a) whether they found the person not guilty on account of unsoundness of mind at the time of the act or omission; and

(b) if they so acquitted the person, the offence the person was acquitted of.

(2) If a jury finds an accused not guilty on account of unsoundness of mind the person is to be dealt with under the Criminal Law (Mentally Impaired Defendants) Act 1966."

12 The effect of s 653(1) is that when a jury finds a person not guilty on account of unsoundness of mind, the jury is required to return a special verdict which specifies "the offence the person was acquitted of."

13 In the case of an indictment charging wilful murder, a "not guilty" verdict by itself would fulfil the requirements of s 653(1)(b) if the word "offence" in s 653(1)(b) were given the meaning of "offence" as defined in s 2 of the Code, being "an act or omission which renders the person doing the act or omission liable to punishment". That is, s 653(1)(b) would not be required in the case of an indictment charging wilful murder, if the jury was not required to specify which of the three verdicts of unlawful homicide they would otherwise have convicted of.

14 However, in my view, it follows from the fact of the introduction into the Code of s 653(1)(b), the time at which it was introduced and the wording of it, that s 653(1)(b) was intended to give legislative effect to the opinion of Burt CJ in Perkins v R (1983) WAR 184 that "on an indictment charging wilful murder, the jury if they acquit the accused 'on account of such unsoundness of mind', should be asked to say whether they, for that reason, have acquitted him of wilful murder, murder or manslaughter." Burt CJ gave the reasons for that requirement as being that the Executive should know the true position and also that there should exist no ground for supposing that a person has committed a crime, eg wilful murder although not criminally responsible for it, in a case where a jury has found him not to be guilty of it.

15 To the extent that s 653(1) of the Criminal Code goes further than the views expressed by the learned Justices of the High Court in Hawkins (AJ) v R [1994] HCA 28; (1994) 179 CLR 500 at 517, it must be assumed that Parliament has legislated with awareness of those views, as s 653(1) came into effect after the decision in Hawkins.

16 I note that in Nolan v R, unreported; CCA SCt of WA; Library No 970260; 22 May 1997 Malcolm CJ said at 50 of his judgment:

"It has long been the practice in Western Australian courts for juries to be directed that an accused who appears to have killed by a voluntary act committed with an apparent intent to kill or do grievous bodily harm, for juries to be directed about those matters before being directed that the accused may be found not guilty by reason of insanity. It is not clear from the passage in Hawkins that the High Court intended to rule that this approach was inappropriate, and there is no reason to change the practice, which has been followed in this State. Under this approach, it is only where all the other elements of the offence have been apparently made out that the question of unsoundness of mind arises. The jury then determines whether the defence has established, on the balance of probabilities, that the accused was insane at the time he or she did the act or acts which would otherwise constitute the commission of a crime. Logically, the question of intent arises at an earlier stage." (my emphasis).

17 In Hawkins (supra) at 517,the High Court ruled that: "It is only when these basic questions are answered adversely to an accused that the issue of intent is to be addressed." The words "basic questions" included the question of unsoundness of mind.

18 In my view juries in this State should be directed, in accord with the reasons for judgment of the five High Court Justices in Hawkins, that they should decide the issues of "what did the accused do and is he criminally responsible for doing it", before addressing the issue of intent. I appreciate that this is contrary to the words in Nolan which have already been referred to, but those words were not necessary to the decision in Nolan and with respect, to that extent, they were obiter and not binding.

19 I therefore differ and again with respect, from the view of Murray J, that in a case such as this, s 653(1)(b) does not require a jury "to consider or make a finding about the form of homicide of which, had they not been of that view, they would have convicted the accused."

20 However, that does not mean that there was a miscarriage of justice in this case. The jury was obviously not satisfied that the applicant was of unsound mind at the relevant time. The fact that they may have addressed the question of intent first, does not invalidate that conclusion.

21 During a redirection there was some uncertainty as to the process to be followed by the jury in its consideration, but I would not regard that either as having caused a miscarriage of justice in this case.

22 I agree with Murray J that none of the grounds of appeal against conviction reveal a miscarriage of justice. I also agree with his Honour and for the reasons given by him, that the appeal against sentence should not succeed.

23 I will however say something about the question of intent.

"The applicant's evidence was that on the night in question he came home from work to be greeted by the noises and cigarette smoke. They affected him greatly and he came to the point that knowing the source of the noises, 'I wanted to have it out with these people.' He took the knife for 'defensive purposes, my own defence. I mean to say, I had great reservations and fear about going near these people.' He was fearful because of the number of occupants of the unit below and that he would be 'set upon'. The consequence of that, he said, would be his death.

As he approached the door to the unit the deceased appeared. The applicant said, 'I know he had hold of me. He had hold of both my front arms and there's nothing in my head.' He said he could only recall 'being gripped and his face in mine. There was a struggle and then I was back at my unit.'

When cross-examined the applicant disagreed with the version of the events put by the Crown. He said he could recall no chair and the deceased was not sitting. He said he regretted what had happened and he agreed that what he did was wrong. However, he denied that he first attacked the deceased. He denied continuing to attack the deceased when he struggled and tried to escape. He denied preventing the deceased from escaping and he denied any intention to kill."

25 The learned trial Judge advised the jury in the summing up that the applicant said: "... that when he went down below, this person came up to the side of him, took him by the hands and there was some sort of grasping, and that after that he just doesn't know what happened."

26 That evidence raised the question of the intent of the applicant at the relevant time.

27 In Hawkins (supra) at 517, Mason CJ, Brennan, Deane, Dawson and Gaudron JJ said:

"Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done, is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was 'voluntary and intentional' within the meaning of those terms in s 13 of the Code. But such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent - relevantly, the intents prescribed by pars (a) and (b) of s 157(1) of the Code. The Courts below were in error in holding that the evidence of Dr Sale and Professor Jones was inadmissible on the issues of those intents."

28 See also the remarks of their Honours at 513, 514 where it was said:

"In Schultz v The Queen [1982] WAR 171 at p 173, Burt CJ pointed out that the intent of an accused is not necessarily the intent that might be attributed to an ordinary person in the circumstances but the intent of the accused himself. He said [at 174]:

'For the purposes of this case the only question is whether the intellectual impairment of the appellant was relevant to and ought to have been admitted as part of "the whole of the evidence" bearing upon the question of the appellant's intent.

Unless there are authorities to the contrary, in my opinion the evidence was relevant and, when led by the appellant, admissible. Once it be acknowledged that there is no legal presumption that a man intends the probable consequences of his acts and that in every case the finding to be made is specifically and exclusively as to the intention of a particular person at a particular moment of time, then, as it seems to me, all facts personal to the person concerned which have bearing or which in the judgment of reasonable men may have a bearing upon the operation of his mind are relevant to that finding.' ... The view of Burt CJ accords with the law in this country".

29 In this case, the learned trial Judge told the jury that:

"... essentially the Crown says if you are not satisfied as to unsoundness of mind, then the Crown puts to you that you would be satisfied beyond reasonable doubt that he unlawfully killed with an intent to kill. The Crown puts that to you by reason, I think, predominantly of the nature of the injuries. The Crown would say they speak for themselves. There are so many repetitive injuries. The defence really focuses on and properly so, I might add, on the question of unsoundness of mind and confidently puts to you that that has been established and as to what intent the person had, then the defence haven't really conceded anything there. The defence says that you have to be satisfied beyond a reasonable doubt that a person had an intent to kill. ..."

30 Dr Srna, who was called by the Crown, said that the applicant was suffering from a major psychiatric illness - "... a delusional disorder - paranoid type."

31 Dr Kay, who was called by the defence, said that the applicant was suffering from paranoiac schizophrenia and that his condition probably resulted in him being unable to control his actions. Dr Kay also said that the applicant was deprived of the capacity to know that he ought not to do the act. He said he did not think that the applicant was feigning amnesia. That he was amnesic for some of the events on the night in question due to unconscious and uncontrollable mechanisms.

32 Dr Kay said: "The problem is that he has, seemingly, no recall at all about the crucial time in relation to the matter." The doctor also said that the applicant had told him that he had no choice but "to put an end to it by killing one of the people." "He saw it as being the only way and justifiable ... but he believed that what he was doing was the right thing and that he was defending himself." That it was the only course of action he could take. He did not understand the wrongfulness of his actions. He had some awareness and was compelled to act in that way.

33 In my view, the learned trial Judge should have directed the jury in this case, that if they were not satisfied that at the relevant time the appellant was of unsound mind, the evidence of mental impairment which they had heard was relevant to the issue of the specific intent required for the offences of wilful murder or murder - Hawkins (supra) at 517. The question of intent had not been conceded by the defence at trial. However this question is not raised by the grounds of appeal. Nor was it argued before this Court.

34 It is clear from the reasons of the Kirby J in Burns v The Queen [1999] HCA (not yet reported) that a Court of Appeal may decide questions which have not been raised at trial or even in an earlier appeal, but in my view this Court in this case should not deliberate on a question which was not raised before the learned trial Judge or on appeal. In any event the medical evidence does not appear to have been directed to the question of whether the accused person had a specific intent apart from the questions arising from s 27 of the Code.

35 In my view, this was not a case where it can be said that the appellant lost a real chance of a verdict of not guilty arising from any of the directions of the learned trial Judge. Therefore, it cannot be said that there has been any miscarriage of justice - Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 513 - 514; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 at 371 - 372.

36 In my opinion the appeals against conviction and sentence should be dismissed.

37 MURRAY J: On 18 May 1998 the applicant was presented in the Supreme Court before Walsh J and a jury and pleaded not guilty to an indictment for wilful murder. Following his trial he was convicted of that offence on 21 May 1998. On the following day his Honour sentenced the applicant to life imprisonment backdated to 29 April 1997, the date of the offence and the date when the applicant was taken into custody. A minimum term of 18 years was fixed before the applicant would become eligible for parole.

38 He now appeals against his conviction and applies for leave to appeal against that sentence on the following grounds:

"1. (a) The Trial Judge failed to direct the Jury fully and correctly on the verdicts open on the Indictment presented against the Applicant; and

(b) That failure constituted a procedural error in the conduct of the trial and affected the fairness of the trial.

2. (a) The Trial Judge failed to direct the Jury in relation to the special verdict (open under Section 27 of The Criminal Code) in a manner required by Section 653 of The Criminal Code, viz that such a verdict must relate to a particular offence; and

3. (a) The Trial Judge failed to direct the Jury cogently and consistently on the proper approach required to be taken by them on the evidence relating to the question of unsoundness of mind; and

(b) That failure constituted a procedural error in the conduct of the trial and affected the fairness of the trial; and

(i) not directing the Jury (on the basis of the Applicant's and the medical evidence) in accordance with Section 27 paragraph 2 of The Criminal Code on the question of self-defence; and

(ii) not directing the Jury on the relevance of the medical evidence to the Applicant's position under Section 27 paragraph 2 of The Criminal Code.

5. The minimum period ordered to be served before eligibility for release on parole was excessive given:

(i) The Applicant's reduced culpability by reason of his mental state at the time of the commission of the offence; and

(ii) the period to which the Trial Judge's discretion applied."

39 Grounds 1-3 all concern the directions given to the jury by Walsh J in respect of insanity affecting the applicant's criminal responsibility within the provisions of the first paragraph of the Criminal Code (WA) s 27, which provides:

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

It will be convenient to deal with these three grounds together.

40 Ground 4 is concerned with the fact that Walsh J did not direct the jury about the impact of such delusional beliefs as the jury may have found affected the applicant at the time, in connection with the question of self-defence. The relevant provision as to the impact on criminal responsibility of delusional beliefs is the second paragraph of s 27 which provides:

"A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist."

41 Finally, ground 5 is concerned with the sentence imposed. The applicant having been convicted of wilful murder, he was liable to the mandatory punishment of strict security life imprisonment or life imprisonment: Code s 282. Under the Sentencing Act 1995 (WA) s 90(2), if, as in this case, the court chooses to impose a sentence of life imprisonment rather than strict security life imprisonment, then the court must set a minimum period of at least 15 and not more than 19 years that the offender must serve before being eligible for release on parole. That minimum period commences when the term of life imprisonment begins. Had the court chosen to impose the sentence of strict security life imprisonment, then, unless the court determined it was necessary to deny eligibility for parole and make an order that the offender be imprisoned for the whole of his or her life, it would be obliged to set a minimum period of at least 20 and not more than 30 years to be served before being eligible for release on parole: Sentencing Act s 91. I mention the capacity on imposing a sentence of strict security life imprisonment to deny eligibility for parole only for completeness. That power did not exist until s 91 was amended with effect from 23 October 1998.

42 To understand how the grounds of appeal arise it is necessary to know something about the facts of the case. As at 29 April 1997, the applicant had lived for some years in a unit in a block of units in Maylands. The deceased, his girlfriend and two others lived in the unit below. They were young people and it seems they often had visitors. When passing sentence Walsh J remarked that the applicant was "from a very decent family" and expressed himself to be satisfied that the deceased and the other young people "behaved generally in a responsible manner." His Honour concluded that none of these young people had ever behaved in an inappropriate or offensive manner towards the applicant.

43 The applicant, however, came to believe that the young people residing in the unit below were harassing him by causing cigarette smoke to be blown through his doors and windows, by playing loud music, by making noises in the water pipes, by banging on and rattling his door, knocking on the floor from below and causing interference to his television set and radio. The applicant's evidence was that the harassment was getting worse just before the date of the offence. He was convinced that these people were trying to wear down his health, to provoke him, and that the ultimate object of the conspiracy against him and the harassment he suffered was to kill him.

44 Most of the evidence appears to have been to the effect that the applicant genuinely held these beliefs, that there was no foundation for them and that they were therefore delusional beliefs, the product of his severe psychiatric illness, described by the forensic psychiatrist who gave evidence for the defence, Dr Kay, as paranoid schizophrenia, the schizophrenia being based on a delusional system of belief. Dr Srna, a forensic psychiatrist called by the Crown to give evidence in rebuttal, agreed that the applicant was suffering from such a major psychiatric illness, which he described as a delusional paranoid disorder.

45 Of course, the applicant gave evidence that the things of which he complained actually happened and evidence to the same effect was given by the person who lived with him and with whom he jointly owned his unit, a Ms Daley. She said these incidents had been occurring for some five years, but they had become very much worse during the course of the weeks before 29 April 1997. She was cross-examined about those matters at length and she often said that her impression of what was occurring and her understanding that it was the people who lived in the unit below who were responsible, resulted from what the applicant told her. However, for present purposes the important aspect of the evidence is that which would support a conclusion of mental illness and the nature of that illness as involving delusional beliefs.

46 It is perfectly clear that the defence case relied upon the evidence of insanity led from Dr Kay. Whilst no admission or concession was made about the intention of the applicant at the time when he admittedly killed the deceased, in essence the defence was that whilst the jury might be satisfied that the applicant killed the deceased intending his death or intending to do him grievous bodily harm, he should be acquitted of wilful murder or murder by reason of insanity within the meaning of the Code s 27.

47 On that question there was a conflict of expert evidence. Dr Kay's opinion, based on the history he took from the applicant and what was put to him of the events of the night, was that at the time of the killing the applicant did not have the capacity to understand what he was doing or the capacity to control his actions. In his view the applicant believed he had no option but to kill the people who were tormenting him, or one of them, or he would die, but, he said, the applicant did not understand that that was not "acceptable behaviour." He said that in his view the applicant killed in "an automatous frenzy" such that he was "probably" unable to control his actions "once he commenced the frenzy, once he started stabbing.". Further, Dr Kay gave as his opinion that although the applicant was aware that it was against the law to kill someone, he did not have the capacity to know that he ought not to do the particular act of killing in this case.

48 Dr Srna, on the other hand, although he accepted that the applicant was suffering from mental illness at the relevant time such that he was subjected to delusional beliefs, gave as his opinion on the available evidence that the applicant was in control of his actions, was not deprived of the capacity to know that he ought not to do the act of killing and had the capacity to know that what he was doing was wrong by ordinary standards. Dr Srna said that the applicant told him that he did not think those who were harassing him were "directly threatening his life or wanting to kill him or do him any physical harm", but the applicant believed that the purpose of the harassment was to annoy him.

49 It is abundantly clear, having regard to the directions given by Walsh J, that the jury was not persuaded on the balance of probabilities that at the time of the killing the applicant was so affected by mental disorder that he was deprived of any of the capacities to which the first paragraph of s 27 refers so as to be relieved of criminal responsibility for the killing by reason of unsoundness of mind.

50 As to the history of the contact between the occupants of these two units, there was evidence that some four days before 29 April 1997 the deceased and others were outside smoking when the applicant from his balcony above poured some foul smelling liquid down upon the plants below, apparently poisoning them. There was a verbal exchange during which, as it concluded, the applicant said, "I've got a little surprise coming for youse." Earlier in the exchange he had said that all the young people were "drains on society and ... deserved to die".

51 As to the night when the deceased was killed, there was evidence that he was seated alone in a chair outside the back door of his unit. None of the other young people were present, but their attention was drawn to an attack upon him by the sound of it. The deceased uttered the word, "knife" and lunged for the door. The occupants of the flat were unable to pull him inside because the applicant pushed the door closed and continued to strike at the deceased. A considerable number of blows were struck with a large knife. Before leaving the scene the applicant was heard by a witness to say words to the effect, "Well, maybe that'll keep you quiet," or, "Perhaps you'll keep quiet." This witness then saw the deceased lying on the ground.

52 The evidence of the forensic pathologist who conducted the post-mortem examination established that the deceased had numerous "defence" injuries to both hands. Apart from these and other cuts, he had suffered 12 penetrating injuries to his head, his torso, both arms and a leg. A number of the wounds to the torso penetrated internal organs and one severed the inferior vena carva vein of the liver. This injury in particular would have caused torrential bleeding and it was the opinion of the doctor that the deceased would have died very quickly. The applicant himself had sustained only superficial lacerations. The bloodstained knife was recovered from his possession when the applicant was arrested following his return to his unit.

53 The applicant's evidence was that on the night in question he came home from work to be greeted by the noises and cigarette smoke. They affected him greatly and he came to the point that, knowing the source of the noises, "I wanted to have it out with these people." He took the knife for "defensive purposes, my own defence. I mean to say, I had great reservations and fear about going near these people." He was fearful because of the number of occupants of the unit below and that he would be "set upon". The consequence of that, he said, would be his death.

54 As he approached the door to the unit the deceased appeared. The applicant said, "I know he had hold of me. He had hold of both my front arms and there's nothing in my head." He said he could only recall "being gripped and his face in mine. There was a struggle and then I was back at my unit."

55 When cross-examined the applicant disagreed with the version of the events put by the Crown. He said he could recall no chair and the deceased was not sitting. He said he regretted what had happened and he agreed that what he did was wrong. However, he denied that he first attacked the deceased. He denied continuing to attack the deceased when he struggled and tried to escape. He denied preventing the deceased from escaping and he denied any intention to kill.

56 So far as grounds 1-3 are concerned, the complaint is not about his Honour's directions to the jury in relation to the elements of any of the offences open on the indictment or the direction given by his Honour in respect of the issues raised by the first paragraph of s 27 of the Code. Nor is there any complaint about his Honour's directions in respect of the onus and standard of proof to be applied in the resolution of the various issues raised by the evidence.

57 The contention is that there should have been a different and particular direction about the order in which the jury should address the various issues raised. Specifically, it is argued that, as a matter of law, the jury should have been directed first to consider whether they found the offence of wilful murder to be established beyond a reasonable doubt. If they so found, then they should consider whether on the balance of probabilities it was proved that the accused was not criminally responsible on the ground of insanity, so the verdict returned would then be either guilty as charged or the special verdict of not guilty on account of unsoundness of mind. If, on the other hand, the jury did not find the offence of wilful murder proved to the required standard, they should return a verdict of not guilty and go on to consider whether the Crown had proved beyond reasonable doubt the offence of murder. The above process should then be repeated in the context of that offence resulting in a verdict of guilty of murder, the special verdict of not guilty of murder on account of unsoundness of mind, or the verdict of not guilty simpliciter. If the last mentioned verdict was to be returned the jury would then repeat the exercise in respect of the offence of manslaugher and the same possible verdicts would be open. And so it is argued that in truth upon this indictment in the circumstances of this case, there were nine possible verdicts open as a matter of law.

58 The issue was raised at the outset of the trial and the authorities, to which I shall come shortly, relevant to the question, were mentioned. It is apparent that his Honour was familiar with them. He created a document to be provided to the jury setting out the possible verdicts, but in the end it seems that his Honour did not use the document, simply telling the jury what the verdicts were. As a matter of law he left five possible verdicts - guilty of wilful murder, guilty of murder, guilty of manslaughter, not guilty on account of unsoundness of mind and not guilty. His Honour added, with the apparent approval of both counsel, that although the defence had made no concession about the verdicts which were realistically open on the evidence, the real issue was whether the accused was guilty of wilful murder or murder or not guilty by reason of insanity. His Honour made it clear to the jury that a simple not guilty verdict was open as a matter of law, although, again with the apparent approval of counsel, he said that no-one had suggested that that verdict was open on the evidence. The alternatives open were put again by his Honour in re-directing the jury at their request upon the requirements of s 27 during the course of their retirement. Again, no complaint is made of any error made in the re-direction about s 27.

59 When the jury returned they were not simply asked for a general verdict. They were asked for a verdict of guilty or not guilty on the count of wilful murder, but, the jury returning a verdict of guilty, they were, of course, not questioned further. There is no doubt as a matter of law that the verdict so returned was a general verdict disposing of the indictment: cf Code s 642. On the other hand, a verdict that an accused person is not guilty on account of unsoundness of mind is clearly a special verdict as provided in the Code s 653. That section picks up the terminology of s 27 which says that a person "is not criminally responsible for an act or omission on account of unsoundness of mind" if by reason of mental impairment he is deprived of any one of the capacities specified in the section "at the time of doing the act or making the omission".

60 Section 653(1) as amended with effect from 13 November 1997 requires the jury, if they find an accused person not guilty on the ground that "the person was not criminally responsible for an act or omission on account of unsoundness of mind":

(a) whether they found the person not guilty on account of unsoundness of mind at the time of the act or omission; and

(b) if they so acquitted the person, the offence the person was acquitted of."

The part of the special verdict referred to in par (b) was added to the section when it was amended as part of the amendment of the law which was principally concerned with the enactment of the Criminal Law (Mentally Impaired Defendants) Act 1996. The authorities to which I shall now refer relative to the argument presented by counsel, to the extent that they were decided in the context of the provisions of the Criminal Code, were concerned with the verdict provided in s 653 prior to its amendment.

61 Perkins v R [1983] WAR 184 is a decision of the CCA concerned, among other things, with a direction of the trial Judge which expressly put to the jury, in a case where the offence charged was wilful murder and where insanity was raised, that they should first decide whether the accused had established the defence of insanity, because if that was made out the accused would not be guilty of any of the homicides open on the indictment. That was held to be a misdirection because, of course, it is the case that the defence of insanity, so called, arising under s 27 is concerned with the negation of the accused person's criminal responsibility for an act or omission which would otherwise constitute the actus reus of the offence charged. In the case of homicide, that is the act of unlawful killing as defined in the Code s 268, s270 and s 277: Falconer v R [1990] HCA 49; (1990) 171 CLR 30 per Mason CJ, Brennan and McHugh JJ at 38; Hubert v R (1993) 67 A Crim R 181 per Murray J, with whom Pidgeon and Franklyn JJ agreed, at 191-3.

62 In Perkins Burt CJ, with whom Wickham and Kennedy JJ agreed, having so held at 188-9, went on to make the following obiter observation:

"Furthermore, I am of the opinion although it does not appear to be the practice and I know of no authority on the point, that in a case such as the present, that is to say, on an indictment charging wilful murder the jury if they acquit the accused 'on account of such unsoundness of mind' should be asked to say whether they for that reason have acquitted him of wilful murder, murder or of manslaughter. It may be that upon an indictment charging wilful murder the jury -

(a) find and find beyond reasonable doubt that the accused unlawfully killed the deceased;

(b) are not persuaded to that standard of persuasion that he did so intending to cause that death; and

(c) find upon the balance of probabilities that when he did the act which caused the death he was insane and deprived of one or other of the capacities spoken of in s 27 of the code,

and if that be the position the accused is entitled to an unqualified verdict of not guilty of wilful murder and, ignoring the verdict of murder simply to make the point, the jury would bring in a s 653 verdict specifically related to the crime of manslaughter. It is, I think, important that the Executive should know the true position and it is more important that there should exist no ground for supposing that a man has committed, although not criminally responsible for, a crime for which the jury has found him to have been not guilty."

63 With respect, a difficulty when that was written may have been the use of s 642 to take such a series of special verdicts from the jury. It is not easy to see the situation posed by his Honour as a case where "the question whether an accused person ought or ought not to be convicted of an offence may depend upon some specific fact" which the jury might be required to find specially. Such a difficulty would appear to have been cured by the amendment made to s 653. What is to be noted, however, is that his Honour did not say that, as a matter of law, the trial Judge would be required to put to the jury that they should address the issues referred to in the passage quoted in an order which would enable the series of special verdicts to be taken and that, of course, is the proposition upon which the applicant's argument depends in this case. His Honour's reference to the importance of the Executive knowing the true position shows that he was concerned with the way in which the person acquitted on account of unsoundness of mind would be dealt with in the context of s 653 which then made the circumstances and duration of that person's custody a matter of the exercise of the Governor's pleasure.

64 The proper order in which the issues in question should be resolved was touched upon by the High Court in its judgment in Hawkins (AJ) v R [1994] HCA 28; (1994) 179 CLR 500. That was a homicide case from Tasmania where questions of intent and insanity were very live issues. The section of the Tas Criminal Code equivalent to the first paragraph of s 27 of the WA Code is s 16(1) which, like s 27, provides for the circumstances caused by insanity which will result in the accused being "not criminally responsible for an act done or an omission made by him". The questions at issue in that case were the obligation of the trial Judge to leave the defence of insanity where the evidence was capable of raising it and the issues to which evidence of mental disease would be relevant. The court held that such evidence would not be relevant to the issue whether the act was voluntary and intentional within s 13 of the Code, but would be relevant to the question of insanity and to the issue of the formation of the specific intents necessary to be established for the act of killing to constitute what in this State would be described as the offences of wilful murder or murder.

65 In relation to the matter at issue in this case, the High Court at 517 said:

"In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved (the latter by reference either to s 13 or to s 16) before there is any issue of the specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused's mental condition at the time when the incriminated act was done falls short of insanity under s 16."

66 The decision in Falconer is to the same effect and to my mind that statement of principle would apply to the WA Code having regard to the way in which ss 27 and 653 make it clear that the effect of unsoundness of mind is to negate criminal responsibility for an act or omission which would otherwise constitute the commission of an offence. It should not be overlooked that the Code s 2 defines an offence as "an act or omission which renders the person doing the act or making the omission liable to punishment". I have referred to the sections of the Code and the case law which make it clear that in a case of homicide that act or omission is that by which the accused person causes the death. It follows that once such an unlawful act or omission is established to the required standard, the question of criminal responsibility for it immediately arises and may appropriately be addressed, as the High Court says, by considering whether criminal responsibility is negated because the act or omission is unwilled or involuntary under s 23 of the Code or whether criminal responsibility is negated by reason of unsoundness of mind within the meaning of s 27.

67 On that view of the law, if the jury should conclude, relevantly to this case, that the accused has not established to the requisite standard operative unsoundness of mind producing one of the incapacities stipulated in s 27, then it follows that they would be obliged to convict of wilful murder, murder or manslaughter, depending upon their conclusion, again to the requisite standard of proof, in respect of the intention, if any, with which the unlawful act was done.

68 On the other hand if, having determined that by reason of the unlawful character of the act which caused death they would be obliged to convict of a form of homicide, the jury consider that the accused is not criminally responsible on account of unsoundness of mind, they may at that point return the special verdict provided by s 653(1) without the need to consider or make a finding about the form of homicide of which, had they not been of that view, they would have convicted the accused.

69 In my opinion, although such a verdict is described by s 653 appropriately as a special verdict, it is a general verdict in the sense that it completely disposes of the indictment. The offence of which, in the case of an indictment for wilful murder, the accused has been acquitted specially on account of unsoundness of mind is the offence of wilful murder charged in the indictment (and, along with it, each other offence of which it was open to convict upon that indictment). Those offences are those stipulated in the Code s 595, but specifically in this case, the offences of murder and manslaughter. I have no doubt that if the accused specially acquitted of wilful murder on account of unsoundness of mind should later be charged with murder or manslaughter in respect of the same act or omission, the defence of autrefois acquit provided in s 17 of the Code would be available: cf. O'Halloran v O'Byrne [1974] WAR 45.

70 I would not read the Code s 653(1)(b) in a case such as this as expressly requiring the jury to be instructed that, should they return a special verdict of not guilty on account of unsoundness of mind they should say not guilty of the offences of wilful murder, murder and manslaughter. The paragraph speaks of returning a special verdict "as to" the offence of which the accused is specially acquitted. If, in a case such as this, for example, the jury were to simply return a verdict by saying, "Not guilty because of insanity", that would identify the verdict as being a special verdict "as to" the matters identified in both paragraphs of s 653(1). "[T]he offence the person was acquitted of" would be each offence of which it was open to convict the accused upon the indictment. No particular form of words is required of, or need be sought from, the jury. Given that s 653(1)(b) may not be construed as dictating the order in which the jury should deal with the various issues which may arise in a case such as this, in a way which would be contrary to general principle and to the way the Code (including s 653 itself) is worded, in my opinion no other mode of taking such a verdict would be appropriate.

71 The matter was again touched upon in Nolan v R, unreported; CCA SCt of WA; Library No 970260; 22 May 1997. That was a case which was also concerned, inter alia, with the relevance of evidence of mental disorder or impairment in a case of homicide, to the issues of the voluntariness of the accused person's acts (in that case an issue of non-insane automatism), the relevant specific intentions and the question of unsoundness of mind in the context of s 27. The judgment of the CCA was given by Malcolm CJ with whom Pidgeon and Murray JJ agreed. The case was made more difficult on appeal because the appellant was unrepresented, but no error was discerned in the directions given to the jury by the trial Judge, Parker J, and the appeal against conviction was dismissed.

72 The grounds of appeal did not challenge the direction given by the trial Judge about the order in which the jury should address the various issues raised in the case. His Honour directed that the jury would consider the question of unsoundness of mind if satisfied to the required standard that the act of the accused which caused death was a willed act. By way of obiter dictum the Chief Justice noted that to so direct the jury accorded with what had been said by the High Court in Hawkins in the passage quoted above. The Chief Justice continued at 50 of his judgment:

"It has long been the practice in Western Australian courts for juries to be directed that an accused who appears to have killed by a voluntary act committed with an apparent intent to kill or do grievous bodily harm, for juries to be directed about those matters before being directed that the accused may be found not guilty by reason of insanity. It is not clear from the passage in Hawkins that the High Court intended to rule that this approach was inappropriate, and there is no reason to change the practice which has been followed in this State. Under this approach, it is only where all the other elements of the offence have been apparently made out that the question of unsoundness of mind arises. The jury then determines whether the defence has established, on the balance of probabilities, that the accused was insane at the time he or she did the act or acts which would otherwise constitute the commission of a crime. Logically, the question of intent arises at an earlier stage."

73 It will be noted that despite the fact that the approach taken by Parker J did not accord with what was said to be the practice in this State, it was not suggested, and it was not determined by the CCA, that any error of law or procedure had occurred. Indeed, as the Chief Justice noted, the approach taken by the trial Judge in that case accords with the statement of principle made by the High Court. For myself, I feel compelled to say that I can see nothing in the way Nolan was decided which is inconsistent with the statement of principle made in Hawkins.

74 In this case Walsh J did not specifically direct the jury as to the order in which they should address the various issues which were raised. He properly instructed the jury upon the verdicts which were open, upon the onus and standard of proof to be applied by the jury in resolving the various material issues and upon the findings they had to make if they were to reach any of the verdicts his Honour discussed with them. In my opinion his Honour committed no error in taking that approach. I consider that the jury must be directed about the order in which they resolve the various issues only to the extent supported by the statement of principle made in Hawkins, that is, as was held in Perkins, it must be made clear that there is no need, and it would be inappropriate, to consider the question of unsoundness of mind until the jury has reached the stage that they have decided that upon the basis that the accused is presumed to be of sound mind: Code s 26, he or she has committed a willed act or omission which would constitute the offence of manslaughter, of which it would be open to convict the accused upon the indictment presented.

75 Alternatively, it would seem to me to involve no appealable error in a case of homicide if the jury was invited to find on the basis that the accused was presumed to be of sound mind, that he or she was guilty of wilful murder, murder or manslaughter before they went on to consider whether, however, they were persuaded on the balance of probabilities to acquit on the ground of insanity. As I say, that would seem to me to involve no appealable error, but to be strictly unnecessary because it invites the jury to determine questions of specific intent which they need not address if they were satisfied that the accused was not criminally responsible for an unlawful homicide on the ground of insanity. I too can see no practical utility in the provision in s 653(1)(b). Its repeal should be seriously considered.

76 However that may be, it is clear, in my view, that the argument presented by the applicant as to the procedure which should be followed must be rejected. I would not allow the appeal against conviction upon grounds 1-3.

77 Ground 4 is directed to the second paragraph of s 27 and the question of self-defence. At trial defence counsel did not raise any question of self-defence or seek any direction in respect of the second paragraph of s 27 and the matter of the applicant's delusional beliefs. Indeed, not surprisingly, defence counsel took the view that the applicant's delusional disorder, on the evidence of Dr Kay, brought him within the first paragraph of s 27 which would therefore leave no room for the application of the second paragraph. However, it is trite law that if the evidence at trial is capable of giving rise to an issue of fact affecting criminal responsibility upon which the jury may find for the accused, then it is the duty of the trial Judge to leave that issue to the jury and to direct them upon it: Van Den Hoek v R [1986] HCA 76; (1986) 161 CLR 158, Hawkins. His Honour mentioned the second paragraph of s 27 only to dismiss the possibility of its application to the case and he gave no direction about self-defence. In the absence of the jury he informed counsel that he had considered carefully whether he should direct the jury on provocation or self-defence and had decided against it. Neither counsel raised any objection to that course.

78 The evidence clearly raised the fact that the applicant was suffering from a mental disorder, however described, a predominant feature of which was his delusion that the persons in the unit below were conspiring to torment him. Dr Kay said the applicant's belief was that the ultimate purpose was to bring about his death. Dr Srna, on the other hand, put it no higher than a conspiracy to annoy, saying that the applicant had denied that he felt in any fear for his life or considered that those who were harassing him wanted to physically harm or kill him. The applicant's evidence was that when he went down to the unit below to have it out with the occupants he took the knife for purposes of self-defence. He was fearful that he would be set upon and killed. The deceased took hold of him and held him from the front by his arms. There was a struggle during which, evidently, the deceased was stabbed to death.

79 The inter-relationship between the issues of a deluded belief not amounting to insanity and self-defence are very usefully discussed by Slicer J in the Supreme Court of Tasmania in R v Walsh (1992) 60 A Crim R 419 at 425-8. There the jury were directed about the provision of the Tas Code, s 16(3), which effectively equates with the second paragraph of s 27 of the WA Code, but in that case the evidence was that the accused, who had been severely wounded in the Korean war, at the relevant time suffered a deluded belief that he was in Korea defending himself from an enemy soldier, the deceased, whom he shot dead.

80 In my opinion this is not such a case. Here there was no evidence that the deceased unlawfully assaulted the applicant "with such violence as to cause reasonable apprehension of death or grievous bodily harm". Section 249 of the Code dealing with self-defence against a provoked assault could not therefore apply. If at all, the question of self-defence fell to be dealt with under the second paragraph of s 248, which applies where the accused has been subject to an unprovoked assault and provides:

"If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm."

81 The evidence was not capable of raising this provision. Upon the most favourable view of the evidence so far as the applicant was concerned, the assault by the deceased of which he testified did not cause and could not reasonably have caused the applicant to apprehend his death or grievous bodily harm. Nor did the applicant believe, let alone on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm except by the use of force in self-defence, that force being of such severity as might cause death or grievous bodily harm.

82 In any event, so far as the second paragraph of s 27 is concerned, there was no evidence that the delusion that the occupants of the unit below had conspired in various ways to harass, annoy and ultimately in that way harm the applicant or bring about his death, was a delusional belief which would not amount to mental impairment (defined in s 1(1) to include mental illness) sufficient to deprive him of any of the capacities referred to in the first paragraph of s 27, but nonetheless affecting the operation of the second paragraph of s 248.

83 In other words, if the applicant's delusional belief had been true, there was no suggestion that it affected his apprehension of the nature of the assault upon him to which, on his evidence, he was subjected. Nor did the delusion cause him to believe that he could not otherwise preserve himself from death or grievous bodily harm except by the use of the force which he employed to kill the deceased. In my view, ground 4 may not succeed and the appeal against conviction must be dismissed.

84 As to the application for leave to appeal against sentence, this of course, is not and could not be directed against the mandatory punishment of life imprisonment. It is directed to his Honour's decision to impose a minimum term of 18 years within the available range of 15-19 years. The applicant was 57 when sentenced. Walsh J accepted that at the time of the killing he was suffering from paranoid delusions and that he killed in a frenzy. His Honour remarked upon the applicant's previous convictions for offences of violence. He expressed the view that the predominant consideration was the need for community protection, although he noted, as it was put in his Honour's sentencing remarks, that the applicant's "degree of culpability is of course diminished in a significant respect by reason of the grave mental impairment from which he was suffering at the time".

85 However, it is clear that Walsh J considered that so long as the applicant was affected by his delusional beliefs, he might offend again. The conclusion that the applicant was a danger to the community was manifest. The problem was considered by the Queensland Court of Appeal in R v Jackway, Ex p Attorney-General [1996] QCA 404; (1997) 2 Qd R 277 where the court held that if an offender was found, for whatever reason, to have a mental abnormality making him a danger to the community, that circumstance could justify a heavier penalty than would otherwise have been imposed, but not so as to exceed the limits of proportionality to the gravity of the offence. The decision of the High Court in Veen v R (No 2) [1988] HCA 14; (1998) 164 CLR 465 was relied upon in support of that conclusion. As Pincus JA put it at 282:

"If, say, a person guilty of unlawful killing is diagnosed as suffering from a mental abnormality - eg if he is a psychopath - which makes him very likely to offend again, that must be a reason for imposing a heavier penalty than would be imposed on another offender who suffers from no such abnormality, but whose circumstances are otherwise similar. ...(His Honour referred to Veen (No 2)) ... I cannot accept that the High Court could have intended to confine the principle, that a dangerous propensity may warrant a heavier sentence, to cases in which the propensity is deduced from the past record, as opposed to being demonstrated, as in the present case, by that record as well as by psychiatric and psychological examination."

86 In this case the penalty was reduced by the decision not to impose strict security life imprisonment. In considering the minimum term to be fixed, it is not submitted that his Honour erred in having regard to the gravity of the crime, the antecedents of the applicant and the need to protect the community: Jackson v R [1990] WAR 105. Whilst it may be true, as his Honour found, that the moral culpability of the applicant was reduced by the contribution made to the commission of the crime by his delusional beliefs, it could not be overlooked that this exacerbated the danger he presented to the community and that was of itself relevant to the fixing of the minimum term.

87 There was no particular mitigation to be found in the applicant's personal circumstances and, as I have mentioned, his mental state had direct relevance to the danger he presented. In my view this offence was a serious instance of wilful murder. The deceased did not provoke the attack which was pursued with determination over a period of time, including when the deceased was effectively defenceless and unable to escape. Little remorse was shown. Of course, 18 years is a long time to be imprisoned, particularly for a man aged 57, but in all the circumstances I am unable to conclude that his Honour's sentencing discretion miscarried in fixing the minimum term. I would refuse the application for leave to appeal against sentence.

Law (Mentally Impaired Defendants) Act 1966

Law (Mentally Impaired Defendants) Act 1996

Health Consequential Provisions Act 1996

Garrett v R [1999] WASCA 169

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Garrett v R [1999] WASCA 169 (10 September 1999)

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