(This judgment was delivered extemporaneously and has been edited from the transcript to include references to the relevant law and authorities. The names of children have also been redacted.)
[2]
Ray and Heather Rivers, if it is all right I will talk directly to you today, because you are the people who knew your son JJ the best. And you are also the people who know Ian Ralph Brooke the best, because he grew up as your foster son from a very young age. At your request, I am calling him Mr Brooke.
Let me start by explaining again what my job is today.
As you know, Mr Brooke was charged with murdering JJ on 20 November 2023. JJ is how we have referred to Jordan John Rivers in this case, and that is how I will refer to him in these reasons. I'll also refer to your other family members by their first names, if that is all right, because it makes it easier and clearer.
As you also know, another judge decided, after receiving evidence from doctors, that Mr Brooke was not fit to stand trial for the charge of murder because of his intellectual disability.[1] That means that there couldn't be a trial about whether Mr Brooke is guilty or not guilty of murder.
What there has been instead is what is called a 'special proceeding'. A special proceeding is a new type of hearing under new legislation called the (WA). This is the first special proceeding to be held in the Supreme Court.
The purpose of the special proceeding is for me to decide the charge on the evidence available, and I have to decide whether Mr Brooke committed the offence of murder (or another offence) or not, or whether he is not guilty on account of mental impairment.
So it is like a criminal trial, because the State has to prove the charge beyond reasonable doubt. If the State proves the elements of the charge (other than the element of intention),[2] I must decide whether Mr Brooke is not guilty by reason of mental impairment. And I must decide that question on the balance of probabilities, that is, whether it is more likely than not.
Because this is not a criminal trial, if I find that Mr Brooke committed the offence of murder, I cannot enter a conviction on the charge. That is because Mr Brooke is not fit to stand trial because of his disability. However, if I do find that he committed the offence or if I find that he is not guilty by reason of mental impairment, I then have to decide what happens to Mr Brooke, including whether he is kept in custody.
In deciding this case, there are a number of important principles of law that apply to this special proceeding and which apply to every special proceeding. Mr Brooke is presumed innocent of the charge and the burden of proving the charge is on the State. The standard of proof that the State must achieve is proof beyond reasonable doubt. If the State does not prove the charge I must find Mr Brooke not guilty.
In deciding this case I have not let emotions or sympathy or prejudice play any part in my decision. I have decided the case only on the facts and the law as applied to those facts. There was a lot of evidence called in this case about what happened on 20 November 2023 and I have considered all of that evidence.
One person we didn't hear from in the special proceeding was Mr Brooke. Mr Brooke is not fit to give evidence and so I have taken into account the things he said to the doctors about that day.[3] Mr Brooke did not attend the special proceeding because I decided that it could make his mental health even worse if he did, and also because he was represented by a lawyer Ms Brennan, who made decisions on Mr Brooke's behalf that she reasonably believed to be in his best interests.[4] I am satisfied that she did that and, indeed, that all the lawyers in this case, Mr Cvetkoski and Ms Finn, for the State, and Ms Brennan, for Mr Brooke, worked hard to find the right and just result in this very sad case.
I will start by summarising my findings and then I will explain in more detail my reasons for those findings.
First, I am satisfied beyond reasonable doubt that on 20 November 2023 at Cable Beach, Mr Brooke killed JJ by stabbing him a number of times with a knife.
Secondly, I am also satisfied that at the time that Mr Brooke killed JJ he was not criminally responsible for doing so on account of mental impairment.[5] I am satisfied that, at the time of the killing, Mr Brooke was suffering from a mental illness that deprived him of the capacity to control his actions and the capacity to know that he ought not do the acts that killed JJ. In other words, I find that, at the time he killed JJ, Mr Brooke did not have the capacity to know that what he was doing was wrong according to everyday standards of reasonable people.[6]
The facts that I have found and the reasons for my conclusions are as follows. Some of these facts may be difficult to hear, and I am sorry about that, but the law requires me to give these reasons.
Mr Brooke was born in 2002. From when he was very young he came to live with you, Mr and Mrs Rivers, as your foster son. Mr Brooke was brought up by you because his parents couldn't look after him. Mr Brooke was one of a number of children that you have raised as foster children, in addition to raising your other children. You are very generous people, Mr and Mrs Rivers, who have worked hard caring for kids for many, many years. The kids you cared for over the years also included Mr Brooke's sister, Sara, who also has an intellectual disability. You were still caring for two more foster kids at your home on the day that JJ was killed and your grandsons [T] and [E] were also living with you at the time.
There should be more people in the world like you, Mr and Mrs Rivers.
From when he was very small it was clear that Mr Brooke had a number of problems. He has foetal alcohol spectrum disorder, an intellectual disability and ADHD. He used to take Ritalin to help him concentrate at school. He also had contact with child mental health services when he was younger, who also diagnosed him with post‑traumatic stress disorder. However, prior to JJ's death, Mr Brooke had not been diagnosed with a psychiatric illness.
Your son JJ was older than Mr Brooke. He was born in 1996 and so was 27 years old when he died. He was a quiet kid and had a lot of friends. I understand that he was very close to your daughter Ronette Rivers and her partner Trevor Cox. Trevor's sister Marissa said that the three of them were like the three musketeers. Apparently, Mr Brooke didn't like JJ or his sister Sara much. Noone seems to really know why Mr Brooke didn't seem to like JJ. It just seemed to be one of those things between brothers. But it had never really gotten violent before and JJ obviously cared for Mr Brooke.
For example, on the Saturday night before he was killed, JJ gave Mr Brooke a lift in his car from Trevor and Ronette's house, after Mr Brooke had been behaving strangely with a knife.
Delicia Rivers, your daughter, said that later that night JJ was worried about Mr Brooke's mental health. She said that JJ didn't mention being worried for himself and she didn't think it would have occurred to him that Mr Brooke would have hurt him or that he was in danger.
I think that is probably right. As I will explain later, I don't think it really occurred to anyone that Mr Brooke would actually hurt JJ until it happened.
Mr Brooke moved out of your house earlier in 2023 and went to live at accommodation provided by Nirrumbuk Aboriginal Corporation. Margaret Martin and Charna Kelly from Nirrumbuk both gave evidence and described some of their dealings with Mr Brooke. They described him initially being pleasant and friendly when living at Nirrumbuk but that he later started having trouble keeping the house rules. Nirrumbuk has a three strikes rule and Mr Brooke started to get strikes for his behaviour.
Mr Brooke got the first couple of strikes for having a bong in his bag and in his room in the house. Then, from about the beginning of October, Mr Brooke's behaviour started to change and he started to behave strangely. He wasn't going to work as much and he wasn't meeting his work requirements for his accommodation and funding.
The first report of concerns about Mr Brooke's mental health came from Nathan Allaway. Mr Allaway is a support worker who had been working with Mr Brooke for a few years. On 25 October 2023, Mr Allaway took Mr Brooke to a job in Djiagween Road in Djugun where Mr Brooke was given the job of raking up some leaves.
A couple of times during the job, Mr Brooke made comments that Mr Allaway found very strange. A couple of days later Mr Allaway reported to Nirrumbuk and to Mr Brooke's case manager at Kimberley Disability Services that he found the conversation concerning and that it made him wonder about Mr Brooke's mental health. He said that it was almost as if Mr Brooke was having a conversation with someone else.
Other people started to notice similar sorts of behaviour and thought Mr Brooke was becoming paranoid.
On 17 November 2023, the Friday before JJ was killed, Mr Brooke was at home at Nirrumbuk. One of the support workers, Danielle Mills, was there as well and noticed that Mr Brooke was behaving strangely. He was flicking through channels in the TV room and talking as if he was having a conversation. He would say something and then pause, and then he would say something again as if someone had said something during the pause.
Ms Mills heard Mr Brooke say something about people 'smelling like shit' and when she asked him about it, he said that JJ bullied him and told him that he smelled like shit when he walked past. He also said that other people thought he smelled like shit when he walked past. Ms Mills said Mr Brooke continued to talk to himself during that night, including when he was back in the TV room flicking between two true crime shows about murder. Ms Mills was concerned about Mr Brooke's behaviour.
The next day, Saturday 18 November 2023, Mr Brooke's support worker, Reuben Madgwick, came to Nirrumbuk to take Mr Brooke out for a few hours. While he was there, Mr Madgwick spoke to Ms Mills about the night before. He then took Mr Brooke out for a couple of hours. Mr Madgwick said that during the outing Mr Brooke was very quiet and seemed off.
After he returned to Nirrumbuk, Mr Madgwick had a meeting with Ms Mills, Ms Martin and Ms Kelly about Mr Brooke. They decided that Mr Brooke should be taken to hospital for a mental health assessment. Ms Martin also said that she and Ms Kelly also decided that Mr Brooke would be getting a third strike and would be evicted from the accommodation. They decided not to tell Mr Brooke about the eviction at that stage.
Ms Martin and Ms Kelly took Mr Brooke to Broome Hospital where he was seen by a doctor, Dr Carina Petersen, and a psychiatric liaison nurse, Michelle Moseley. Ms Martin and Ms Kelly stayed with Mr Brooke while he was examined by both Dr Petersen and Ms Moseley, although Ms Kelly left for about 20 minutes when she went to your house in Cable Beach, Mr and Mrs Rivers. She went there because Mr Brooke was going to be evicted and she wanted to see if he could stay there until the Monday.
Back at the hospital, Dr Petersen spoke to Mr Brooke first, with Ms Martin and Ms Kelly present. Dr Petersen was a junior medical officer who was working under the supervision of a more senior doctor. Her main job as the medical officer in the Emergency Department was to see if there was a physical reason or disease for Mr Brooke's symptoms, rather than making any psychiatric diagnosis. Dr Petersen did, however, carry out a mental state examination of Mr Brooke. Mr Brooke reported no auditory or visual hallucinations or perceptual disturbance. He said that he had no suicidal thoughts or homicidal thoughts. Knowing what we know now, Mr Brooke was probably scared to tell people what was going on in his mind because he was worried that he was 'going crazy'.
Dr Petersen was able to rule out a physical cause for Mr Brooke's symptoms and so she ordered a mental health blood test and referred him for a review by Ms Moseley, the psychiatric liaison nurse.
Ms Moseley spent about 40 minutes with Mr Brooke, and also spoke to Ms Martin and Ms Kelly. She completed a Mental Health Triage form and a Risk Assessment and Management Plan in relation to Mr Brooke and also accessed his previous medical records. I find that the assessment by Ms Moseley was very thorough, although she described it as a difficult interview because Mr Brooke didn't engage very freely and she was having to rely on information from other sources. She also said that there was some conflicting information between what Mr Brooke was telling her and what Ms Martin and Ms Kelly were telling her. For example Mr Brooke denied being paranoid or having hallucinations, but the staff from Nirrumbuk were reporting different behaviour that suggested otherwise.
Ms Moseley was concerned enough to refer Mr Brooke to Community Mental Health for a psychiatry assessment the following Monday. All of the documentation was sent to the community team with a request for them to contact Mr Brooke's support workers on Monday to arrange a time to come in.
While she identified some risk factors, however, Ms Moseley concluded that there was no evidence of an imminent risk that Mr Brooke would harm himself or others and she noted that he had strong protective factors. With all the information that she had at the time, I am satisfied that Ms Moseley could not have predicted what Mr Brooke would do two days later. Ms Moseley is a very experienced psychiatric nurse and has spent most of her 27 years of psychiatric nursing in remote and regional Australia. I am satisfied that, if Ms Moseley had considered that there was an imminent risk, Mr Brooke would have been admitted to hospital.
When they left the hospital, Ms Martin told Mr Brooke that he could not stay at the Nirrumbuk accommodation that night. She told him that he could stay at his parents' place in Cable Beach, but he said that he didn't want to go there because his brother was there. So after picking up his things from Nirrumbuk, Ms Martin took Mr Brooke to Trevor and Ronette's house. Ronette was actually in Karratha at the time and Trevor was heading there that day, so they weren't home. Mr Brooke went in on his own and while he was there he saw Marissa Cox, who was checking on the house. Because he was Ronette's brother, Ms Cox thought it was all right for Mr Brooke to stay at the house and left the house keys with him.
A bit later on Ms Cox was at another house in that street, and Mr Brooke came into the yard and was staring at her. He was mumbling something and it was giving her the creeps. Also during that afternoon, Mr Brooke went to Delicia's house and spoke to Zareth Morgan. Mr Brooke asked him if he knew where JJ was.
Later that day Ms Cox met up with JJ and others at the beach. Ms Cox and JJ left together in JJ's car and they went to Trevor and Ronette's house at about 7.00 pm. Mr Brooke was at the house and Ms Cox noticed that he was holding a knife in one of his hands down by his side. Ms Cox and JJ went into the house and JJ told Mr Brooke to put the knife down. Mr Brooke was following JJ around the dining room and the lounge room with the knife, but he didn't hold it up towards JJ. Ms Cox described Mr Brooke as having a glazed look, like there was no one home.
Mr Brooke wanted to go to your house in Cable Beach, Mr and Mrs Rivers, and JJ offered to give him a lift there. JJ, Ms Cox and Mr Brooke all got in the car, and JJ dropped Ms Cox somewhere else first.
It is not clear whether JJ did drive Mr Brooke to your house at Cable Beach at that time but Mr Brooke did end up at the house for dinner. A number of people were there for dinner that night including [T] and [E] Rivers, Ronette's two boys, who were living with you and your two foster daughters [M] and [H].
Mrs Rivers, you described Mr Brooke acting very strangely that night. He was walking around the house with a tomahawk and two knives, looking in the rooms. At one point he said to you 'Will you forgive me mum?' You didn't know what he was talking about and said 'Yeah'. Later on Mr Brooke took off but no one knows where he went. No one seems to have seen him again until Monday morning.
It's pretty clear that by then everyone was worried about Mr Brooke because he was acting so strangely. As I said earlier, Delicia saw JJ later that night and JJ said he was worried about Mr Brooke's mental health. While everyone was worried about him, nobody could have known what was going to happen next on Monday morning.
On the Monday morning, 20 November 2023, at about 8.30 am Margaret Martin and Charna Kelly had a meeting with Mr Brooke at Nirrumbuk. They told him that he was being evicted. Ms Martin offered to arrange accommodation for him at Broome Aboriginal Short Stay accommodation. He said that it was 'okay' and that he would just go back home. Ms Kelly gave him a lift to the house at Cable Beach.
On the way, Ms Kelly asked Mr Brooke if he wanted Reuben Madgwick to take him to his mental health appointment or to help him pack up his things. He said he didn't need it and said 'I don't need any help anymore'. Ms Kelly was worried that Mr Brooke might be thinking of hurting himself, so she asked him if he was, and he said that he would never do that. She also asked him if he might be thinking of hurting someone else, and he said 'no'. Because Mr Brooke was calm when answering her questions, Ms Kelly believed him.
When she gave evidence to me about asking these questions, Ms Kelly said 'and then we're driving, and I should have just drove straight to the hospital'. Ms Kelly obviously feels some responsibility for what happened next. That is a natural thing for her to think. I am sure that everyone wishes that they could have known what was going to happen next and done something different. But Ms Kelly couldn't know what was going to happen next and she shouldn't think that anything is her fault. Ms Kelly impressed me as a very careful witness and a caring person who was doing her very best.
When they got to the house, at about 9.00 am, Mr Brooke walked in the front door. You were both home Mr and Mrs Rivers, and so was JJ, and your grandsons [T] and [E]. Ms Kelly was out the front and so was Christopher McCrory, a youth worker who was coming to take [T] and [E] to school.
Once he walked into the house, without saying anything, Mr Brooke walked straight down the corridor to the bedroom in which JJ and [T] were sleeping. Mr Rivers, you heard JJ yelling for help and ran down to the bedroom and found that Mr Brooke was on top of JJ punching him, trying to punch him in the face. Mr Rivers, you tried to get Mr Brooke off JJ and asked [T] to help you. [T], who was only 13 years old at the time, showed real courage. He grabbed a crowbar and hit Mr Brooke with it to get him off JJ. [T] said that he hit Mr Brooke once in the leg and that was enough to get him off.
Mr Rivers, you and JJ then left the room and Mr Brooke followed behind. You went to the front door and spoke to Ms Kelly, saying 'You shouldn't have brought him here. I've got kids here'.
At about the same time, Mr Brooke came out of the kitchen and met up with JJ in the lounge room. Mr Brooke started hitting JJ in his chest and neck. [T] could see that Mr Brooke had a knife. You could also see Mr Brooke was hitting JJ with a knife Mrs Rivers. [T] said that Mr Brooke put his arm around JJ's neck, from behind, so that they were both facing in the same direction. As [T] demonstrated in his child witness interview, Mr Brooke was stabbing JJ in the front of his chest, reaching around from behind him. [T] also described Mr Brooke turning JJ around and stabbing him. I am satisfied beyond reasonable doubt, based on the evidence of [T] and also the evidence of Mr and Mrs Rivers and Ms Kelly, that Mr Brooke stabbed JJ with a knife.
The actions described by [T] also match the injuries found on JJ by Dr Downs, the doctor who performed the post-mortem examination on JJ. There were about 12 sharp force injuries to JJ's chest, back and neck, including a large injury to the front of JJ's chest. I am satisfied beyond reasonable doubt, based on Dr Downs' evidence, that those sharp force injuries were the cause of JJ's death, especially the large injury to his chest.
After stabbing JJ, Mr Brooke walked out of the front door of the house and off into the bush across the street. [T] and Ms Kelly, who were both outside the front of the house, saw Mr Brooke flick a knife into a bush at the front of the house. The police later found a wooden handled knife out the front of the house. Tests of that knife were positive for blood and also matched JJ's DNA. I am satisfied beyond reasonable doubt, based on all of the evidence, that that knife was what Mr Brooke used to stab and kill JJ.
After Mr Brooke left the scene, the police and the ambulance were called and you, Mr Rivers, tried to stop the bleeding to JJ's neck with a towel. JJ's last words were something like 'I'm sorry God' or 'God, I'm coming, please forgive me'. JJ died at the scene.
Mr Brooke was caught by the police a short time later in the bush. He has been in custody ever since.
For the reasons I have just given, I am satisfied beyond reasonable doubt that on 20 November 2023 at Cable Beach, Mr Brooke killed JJ by stabbing him a number of times with a knife. A killing is unlawful unless it is authorised, justified, or excused by law. While Mr Brooke's case is that he is not criminally responsible for the killing, it was accepted by Ms Brennan that there was no basis in the evidence for any authorisation, justification or excuse which the State would need to disprove.
As I have said, however, Mr Brooke does raise the defence that he is not criminally responsible for killing JJ on account of mental impairment. That requires me to make findings about what was going on in Mr Brooke's mind at the time. That can be difficult to do sometimes because the only way we can say what is going on in a person's mind is by what the person does and what they say.
At the time that he killed JJ, Mr Brooke did not say anything. No one knew or could understand why he did it. No one knew what was going on in his mind at the time. Mr Brooke was tested for drugs by a blood test taken on the day and there was no alcohol, ganja or other common drugs in his system. So there is no evidence that drugs made him do it, or that he was under the influence of alcohol or drugs at the time.
After he had been in prison for a while, however, Mr Brooke met with the two psychiatrists, Dr Rajan Darjee and Dr Adam Brett. Both Dr Darjee and Dr Brett gave evidence before me. Dr Darjee met with Mr Brooke three times, first in January 2024 and then in April and June 2024. Dr Brett met with Mr Brooke twice in November 2024.
Mr Brooke told both Dr Darjee and Dr Brett what was going on in his mind when he killed JJ. Even though he met with them many months apart, what Mr Brooke told Dr Darjee and Dr Brett was very similar.
Mr Brooke told Dr Darjee that on 20 November 2023 he had eaten some mushrooms, which he thought were normal mushrooms, and that he started to see weird things and that 'everything looked funny'. This is what Mr Brooke then told Dr Darjee (in their second interview in April 2024):
[3]
When he was dropped off at the house, he said his foster father looked like his head was on fire. 'Other people looked strange, not like humans.' 'Monsters, one had no face.' 'The ground was moving, it felt weird.' 'Others looked like aliens, they looked scary, with sharp teeth. It was frightening.'
He said, '[JJ] looked like a devil. Like he was trying to hurt me.' He said he went straight to the room to grab some clothes. There was a crowbar under the bed. I asked why there was a crowbar there, and he replied, 'It was just there.' He said he started to lose his mind and did not know if he was going to be attacked. The voices were saying things, like 'he's going to kill you.' He said that before he got to the house the voices were saying 'stupid, dumb and crazy' things. He believed that whatever [JJ] was, it was going to hurt him or 'break my arms.' 'It felt strange. Everything looked different.' He said he hit [JJ] with the crowbar, but he thought 'it was something else', 'I did not recognise him.' 'I couldn't tell if it was him or not.' He could not remember much about his foster father intervening, but he recalled that his head was still on fire and his face was melting.
He was not sure why he went to the kitchen to get the knife. He said that when he stabbed [JJ], he thought he was stabbing 'something else', 'like the Devil.' [As he recounted this to me, he was visibly upset.] 'I was scared as I thought it was going to hurt me, break my legs, kill me.' 'I thought the devil was coming after me.'
[4]
Mr Brooke gave a similar account to Dr Darjee in their third interview in June 2024.
Mr Brooke also gave a similar account to Dr Brett in November 2024. This is what he told Dr Brett:
[5]
He stated that his mental state changed significantly when he ate some mushrooms that a backpacker had given him. He stated that he was unaware that they were magic mushrooms. He stated that he had never taken magic mushrooms previously. He stated that the mushrooms were yellowish and the head was the size of a 20c coin. He stated that he cooked them in a frying pan.
He was unclear exactly when he ate the mushrooms. He described his significant change in his mental state following their ingestion. He stated that he saw rainbows, all the colours, different colours and the world appeared different. He then started to see aliens, demons and devils. He stated that he believed the victim was the devil and was surrounded by aliens.
He does not recall going to the house. He recalled feeling frightened of the victim, who he believed was the devil and was going to attack him and kill him. He stated that he believed that he had to kill this entity before he was killed. He believed that he was killing the devil. He stated that when he was told that he had killed the deceased he believed that he should have killed himself instead.
[6]
I am satisfied that these accounts by Mr Brooke are a truthful description of what was going through his mind at the time that he killed JJ. Mr Brooke's description of seeing colours, aliens, and especially believing that JJ was the Devil was the same in the interviews with Dr Darjee and Dr Brett even though they were months apart. I accept Dr Darjee and Dr Brett's evidence that, with his intellectual difficulties, it would be very difficult for Mr Brooke to fabricate his description and to give the same description over a long period of time. So even though the things he described were obviously not real, I accept that it was what Mr Brooke believed at the time. They were delusions.
I also think that Mr Brooke's memory of eating mushrooms was probably part of his delusions. There was no evidence, from any of the workers at Nirrumbuk, of Mr Brooke ever cooking or eating mushrooms, including on the morning of 20 November 2023 and his drug tests were all negative. I accept Dr Brett's evidence that when people suffer from psychosis, they try and make sense of it and can believe there is another explanation for their experience. He gave the example of a person with psychosis believing that they have a microchip put in their brain. In my view, Mr Brooke's belief that he ate mushrooms could be the same kind of belief. Dr Darjee also agreed that people suffering from psychosis can try to make sense of it by believing that there is another explanation for their experience.
So the question for me then becomes whether because of the delusions Mr Brooke was having at the time he killed JJ, Mr Brooke has proved the defence that he was not guilty on account of mental impairment.
To decide that question, I have to decide whether Mr Brooke had a mental impairment at the time that he killed JJ. A mental impairment includes a mental illness. And I also have to decide whether, because of that mental impairment or mental illness, Mr Brooke was deprived of one of what the law calls a capacity. Those are the capacity to understand what he is doing, or the capacity to control his actions, or the capacity to know that he ought not to do the act.
So in this case, if I am satisfied that Mr Brooke did have a mental illness at the time that he killed JJ and that because of that mental illness he did not have one or more of those capacities, and I am also satisfied that Mr Brooke was not intentionally intoxicated, then I must find him not guilty by reason of mental impairment.
This is where the evidence of the two doctors, Dr Darjee and Dr Brett is important. I am not an expert on mental illnesses and they are. So I am allowed to take into account their expert opinions. I don't have to accept their opinions, but I can't just ignore them either, especially when there is no evidence that says that their opinions are wrong.[7]
Both Dr Darjee and Dr Brett gave their opinion that Mr Brooke was suffering from a mental illness when he killed JJ. They described the mental illness differently but I find that they were really describing the same illness with a different label. Dr Darjee said that the mental illness was schizophrenia and Dr Brett said that the mental illness was a psychotic disorder, not otherwise specified. Schizophrenia is a psychotic illness, so you can see how their descriptions are similar. In my view, Dr Brett was being a bit more cautious about describing the illness as schizophrenia, because he thought Mr Brooke needed more investigations over a longer time to get a clearer diagnosis. Dr Darjee, on the other hand, saw Mr Brooke more times over a longer period of time so he was more confident of the diagnosis of schizophrenia.
But they both gave the opinion that Mr Brooke was suffering from a psychotic disorder. In reaching that opinion, they both relied upon what Mr Brooke told them and also on the strange behaviour that other people saw in the days and weeks leading up to the day he killed JJ; like speaking to people who weren't there and thinking strange thoughts.
As I have already said, I accept that what Mr Brooke told Dr Darjee and Dr Brett about what was going through his mind at the time that he killed JJ was true. I also accept Dr Darjee and Dr Brett's opinion evidence that Mr Brooke was suffering from a mental illness when he killed JJ. So I am satisfied of the first part of the defence: Mr Brooke did have a mental illness at the time.
Turning then to those capacities.
I am satisfied that Mr Brooke was deprived of at least two of the capacities I have referred to.
Most importantly, I am satisfied that, because of his psychosis and delusions, Mr Brooke did not have the capacity know that he ought not to kill JJ. The law says that that capacity is the ability to appreciate the wrongness of the particular act that he was doing at the particular time.[8] Or, in other words, the capacity to reason as to what is right or wrong according to ordinary standards.[9] Dr Darjee and Dr Brett were of the opinion that Mr Brooke did not have that capacity and I accept their evidence. In particular, I find that, because Mr Brooke was under the delusion that JJ was the Devil and that he had to kill him or be killed, Mr Brooke could not reason that it was wrong to kill JJ. He genuinely believed that he had to kill JJ or that he would be killed. That delusion was caused by his mental illness at the time. He was very unwell at the time.
Dr Brett and Dr Darjee were also of the opinion that Mr Brooke was deprived of the capacity to control his actions, because of the delusions, and in particular that Mr Brooke felt that he had no choice but to kill JJ because of his delusion that JJ was the Devil and was going to kill him. While it is not as clear as the first capacity, I do accept Dr Brett and Dr Darjee's evidence that Mr Brooke was probably deprived of that capacity also.
I have had difficulty in relation to whether Mr Brooke did not have the capacity to understand what he was doing when he killed JJ. I find that he did know what he was doing, in the sense that he understood that he was stabbing someone (or at least something) with a knife, intending to kill them. As he said to Dr Darjee he believed he had to kill or be killed. I accept that Mr Brooke was under the delusion that JJ was the Devil, but it is still difficult to know if that means that he knew that he was killing a person and or that it was JJ that he thought was the Devil. It is clear from his behaviour in the days leading up to the attack that he was paranoid about JJ specifically, so that it was JJ he attacked. Even though it was caused by his delusions that JJ was the Devil, it still seems to have been JJ that he was seeking out when he went into the house. It is so difficult for us to understand Mr Brooke's delusion and it would have been difficult for Mr Brooke to describe it. Because it is not necessary for me to make a finding about that issue, and because it might involve a difficult question of law, I am not going to make a finding about whether Mr Brooke did not understand what he was doing. That is because I have already made findings that he did not have the other two capacities.
I am also satisfied that Mr Brooke's delusions and lack of capacity were not the result of voluntary intoxication. There was no evidence of intoxication and, as I have said, in my view Mr Brooke's memory of eating mushrooms was probably part of his delusions. I do not think that he had actually eaten mushrooms. Even if he had, there is no evidence to suggest that Mr Brooke became intentionally intoxicated.
For that reason, I am satisfied on the balance of probabilities that, at the time of killing JJ, Mr Brooke was suffering from a mental illness that deprived him of the capacity to control his actions and the capacity to know that he ought not do the acts that killed JJ.
That means that under the law Mr Brooke is not guilty on account of mental impairment.
I must therefore enter judgment that Mr Brooke is not guilty of murder on account of mental impairment.[10]
The next thing I am required to do is make an order about what happens to Mr Brooke now. I am required to make either a custody order, which is an order that Mr Brooke be detained in custody, or a community supervision order, which is an order that Mr Brooke comply with conditions while living in the community.[11]
Before I can make any order there are a number of things I must take into account. The paramount consideration is the protection of the community.[12] To assist me in deciding what order to make, any victim of the offence, which includes Mr and Mrs Rivers and all of JJ's sisters, can also give me a victim impact statement.[13]
I am also concerned that, even though Mr Brooke has a mental illness, he has spent all of his time in custody in a prison. Dr Brett has already said that Mr Brooke should be in a secure hospital and that his mental illness cannot be managed in a prison.
Dr Brett said that more than a year ago and Mr Brooke is still in prison and not in hospital. I do not know whether Mr Brooke's mental health is getting worse because he is not in hospital. So I am going to ask the lawyers if we can get reports about why he is not in hospital, how he can be treated and what risk he is to himself and the community because of his illness.[14]
So I am going to adjourn this case to another day, when everyone is available, to get all that information.
[7]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.