Q. Therefore incapable of appreciating the wrongfulness of his actions on balance?
A. On balance, correct." (T.63.43)
54 I am satisfied beyond reasonable doubt that the accused had an intention to kill JE and that JE died as a result of a wound inflicted during the attack upon him and that subject to issues concerning mental responsibility, the culpability of the accused for the crime of murder has been established. Similarly, I am satisfied to the necessary standard that the accused had an intention to kill LE when he wounded her and that subject to the issue of mental responsibility, the culpability of the accused for the crime of attempted murder of LE, has been established. I note that these matters were expressly conceded by senior counsel for the accused.
55 As previously indicated the real issue before the Court is whether the accused was suffering from mental illness, as that term is understood in s 38 of the Mental Health (Forensic Provisions) Act 1990 when the attacks occurred.
56 The onus borne by the accused on this issue is stated in The King v Porter (1933) 55 CLR 182 at 184 as follows:
"When the jury turned from the consideration of the question whether the things which constitute the crime were done to the question whether the man who did them was criminally responsible for his actions or was not, because of unsoundness of mind at the moment, it is necessary for the accused's person to make out positively, upon a balance of probability, that he was not criminally responsible, and that he was not of such a mental condition at that time as to be criminally responsible. He has not got to remove all doubt from your minds. He, or rather his counsel, has merely to make appear to you as more probable on the whole that that was the state of his mind at the time he did the things charged, than otherwise."
57 The classic statement of principle is contained in R v McNaughten [1843] 8 E. R. 718 as follows:
"To establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as to not know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."
58 What that statement of principle makes clear is that the relevant time at which the accused's state of mind is to be assessed is at the time of the attacks. That is not to say, however, that his actions before and after cannot be considered to determine his state of mind at the relevant time. Not surprisingly, the accused has been able to offer little useful evidence as to what he was thinking at that time but his writings and statements shortly before and his statements to the psychiatrists and psychologist afterwards are important to assess his state of mind at the relevant time. In this case they provide the best evidence of that state of mind.
59 The McNaughten statement of principle requires that at the time of committing the act, the accused was labouring under a defect of reason from a disease of the mind. The evidence on that issue is all one way. The psychiatrists and the psychologist have concluded that at the time of the attacks the accused was suffering from a form of psychosis, probably schizophrenia. As defined by Dr Allnutt, such a psychosis clearly satisfies the requirement for the defect of reason being due to a disease of the mind.
60 In this case it is not suggested, on behalf of the accused, that he did not know the nature and quality of the acts he was doing. It is accepted that he intended to kill his parents and that he understood what this involved.
61 The issue in this case is whether, on the balance of probabilities, the accused has established that he did not know that what he was doing was wrong.
62 This concept was explained on a number of occasions in Porter as follows:
"The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing but that he was quite incapable of appreciating the wrongness of the act. … You are dealing with a very different thing - with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression "know", "knew that what he was doing was wrong". We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people would make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people … In conclusion I go back to what I consider the main question of the case and it is whether you are of the opinion that at the stage of [attacking his parents] the man whom you are trying had such a mental disorder or diseased intelligence at that moment that he was disabled from knowing that it was a wrong act to commit in the sense that ordinary reasonable men understand right and wrong and that he was disabled from considering with some degree of composure and reason what he was doing and its wrongness." (P 189-190)
63 I have concluded that the accused has established, on the balance of probabilities, that at the time when he attacked his parents, he had such a mental disorder or diseased intelligence that he was disabled from knowing that it was a wrong act to commit in the sense that ordinary reasonable persons understand right and wrong.
64 It is true that the accused knew that what he was doing was against the law. This, however, is not decisive. As the psychiatrists and the psychologist pointed out in their reports, despite that knowledge the accused apparently disassociated himself from what normal people would regard as rightness and wrongness and considered that his actions were justified.
65 The evidence of the psychiatrists and the psychologist support this proposition. Whereas Dr Allnutt was somewhat equivocal in his report, in his evidence at trial he reached the conclusion which I have set out at [54]. In answer to a question which I put to him concerning the audio file on the accused's mobile telephone, Dr Allnutt said: