Criminal Procedure Act 2004 (WA), s 118, s 120

Evidence Act 1906 (WA), s 32

Accused is guilty of the murder of Christopher Stoodley

Accused is guilty of the murder of Jenni Kay Barrett

1 JENKINS J: The accused is charged on an indictment dated 3 September 2012 that on 25 August 2011 at Maylands he murdered Christopher Stoodley. He is further charged that on the same date and at the same place he murdered Jenni Kay Barrett. The accused pleaded not guilty and not guilty by reason of insanity to each of the charges. He applied for a trial by judge alone and, on 23 July 2013, I ordered that pursuant to the Criminal Procedure Act 2004 (WA) s 118, the accused be tried by judge alone: The State of Western Australia v Brown [No 2] [2013] WASC 280.

2 The accused's trial commenced before me on 5 August 2013 and concluded on 22 August 2013. These are my reasons for finding the accused guilty of both counts of murder.

3 The accused made admissions pursuant to the Evidence Act 1906 (WA) s 32 that:

(1) on 25 August 2011 at Maylands, he (alone) killed Christopher Stoodley by stabbing him; and

(2) on 25 August 2011 at Maylands, he (alone) killed Jenni Kay Barrett by stabbing her.

4 The State called the following witnesses in its case:

5 With the consent of the accused, the State read into evidence the statements of the following witnesses:

7 With the consent of the State, he also read into evidence the statements of Jonathan Stephen Gibbs and Elke Astrid Halliday.

9 As the accused admitted that he, alone, had killed Mr Stoodley and Ms Barrett by stabbing them, the State was not required to call any further evidence to prove those facts.

10 By his plea, the accused put in issue his sanity at the time he killed each of the victims. In particular, it is in issue whether at the time he killed each of the victims his mind was disordered by intoxication by drugs or he was in such a state of mental impairment as to deprive him of the capacity to control his actions (the insanity defence).

11 In addition to the matters covered by the accused's formal admissions, there are a number of important matters which are agreed between the parties. Significantly, it is not in issue that:

(2) as a consequence, at the time of the alleged offences, the accused was mentally impaired because he was suffering from decompensated posttraumatic stress disorder (PTSD);

(3) the accused has an antisocial personality disorder (ASPD);

(4) as a result of his PTSD and ASPD, the accused's capacity to control his actions at the time of the alleged offences was impaired; and

(5) if (which the State disputes) the accused was suffering from an idiosyncratic adverse reaction to the drug desmethylvenlafaxine (DMVF), that adverse reaction would constitute intoxication caused without intention on his part by drugs for the purpose of the Criminal Code (WA) s 28(1).

12 The parties do not agree that ASPD is a mental illness and thus a mental impairment for the purpose of the Criminal Code s 27. As stated above, they are also not in agreement as to whether the accused was suffering from an idiosyncratic adverse reaction to DMVF at the time of the commission of the alleged offences. It is the accused's case that a combination of the decompensated PTSD and the adverse reaction to DMVF caused him to suffer hypomania/mania and that this deprived him of the capacity to control his actions at the time of the commission of the alleged offences. The State, as I have said, does not agree that the accused was suffering from the adverse reactions to DMVF but, in any event, it disputes that he lost the capacity to control his actions as a consequence of any form of mental impairment or as a result of his mind being disordered by intoxication caused without intention on his part by drugs.

13 In the event that the insanity defence is not made out, there is an issue as to whether the State has proved that at the time the accused killed each of the victims, he had an intention to kill the victim or had an intention to cause the victim a bodily injury of such a nature as to be likely to endanger their life.

14 The Criminal Procedure Act s 120(2) requires that the judgment of a judge in a trial by judge alone include the principles of law that the judge has applied and the findings of fact on which the judge has relied.

15 The principles of law which I apply are as follows.

16 It is my duty to decide what facts have been proven, to apply the relevant law to those facts and then to decide whether the State has satisfied me beyond reasonable doubt that the accused is guilty of either charge.

17 I must decide the case based on the evidence which has been produced in the trial. I must assess that evidence dispassionately. I must not decide the case based on prejudice against any person or sympathy towards any person. I must not guess or speculate about matters which are not in evidence.

18 The evidence is not only what the witnesses have said. It is also my observations of their characteristics. Evidence is also the exhibits that have been tendered during the trial.

19 Five of the witnesses called to give oral testimony were experts. The evidence of Dr White, the forensic pathologist who completed the postmortem on each of the deceased, and Sergeant Blaver, a blood spatter analyst, was not in dispute. However, aspects of the evidence of the remaining three experts were disputed by the opposing party. Dr Tanney is a psychiatrist who gave evidence for the accused, Dr Brett is a psychiatrist who gave evidence for the State and Professor Joyce is a medical practitioner who specialises in clinical pharmacology and toxicology, who gave evidence also for the State.

20 I am not bound to accept and act upon a witness's evidence, even an expert witness's evidence. I may reject expert evidence if there is other evidence to support my findings. Nevertheless, I am not entitled to disregard expert evidence capriciously. If there are no facts and no circumstances which in my view throw doubt on that evidence, I must accept it.

21 Neither party disputes the expertise of the opposing party's expert witness or witnesses. However, there are small areas of disagreement about the facts on which their opinions are based. There is also disagreement between the experts as to the conclusions that can be drawn from those facts. It is for me to decide whose opinion I accept in whole or in part. The determination of matters of conflict may depend upon which party has the onus of proof in relation to the issue in dispute. It may also depend on my decision as to whether the facts upon which an opinion is based accord with the facts as I have found them to be. Acknowledging that to a large extent the differences between the witnesses are matters of expertise, there is also a limited area in which I may use my common sense and my own experience to resolve the conflict between the experts.

22 Given that both parties agree that at the time of the killings the accused was mentally impaired, I warn myself that it is dangerous to assess the accused's actions and test the accused's capacity to control his actions by the standards of ordinary people without such impairment. Whether or not he lacked the capacity to control his actions, the accused's mental capacity was not that of a person who was not mentally impaired.

23 Both psychiatrists relied, to a limited extent, on information the accused told each of them during interviews held with him for the purpose of each psychiatrist preparing their reports for this trial. The parties agree that the accused is an unreliable historian about some matters personal to him, in particular, about his drug use and the events which are the subject of this trial. For that reason, I will approach their opinions with caution and scrutinise their opinions carefully where their opinions rely upon what the accused has told them.

24 Because there are two charges, I must look at the evidence in respect of each charge separately. I must not reason that just because the accused is guilty or not guilty of one charge, the same verdict must follow in relation to the other charge. My verdicts do not have to be the same on each charge.

25 The accused is presumed to be innocent of the charges. Putting to one side the issues raised by his plea of not guilty on the basis of unsoundness of mind, the State has the onus of proving his guilt. For the State to discharge that burden, it is required to prove beyond reasonable doubt that he is guilty of the charge which I am considering. It may do that by proving each of the elements of a charge to the standard of beyond reasonable doubt. In respect of proof of those matters where the onus is on the State, the accused is entitled to the benefit of any reasonable doubt, which is the highest standard that is known to the law.

26 The accused did not give evidence in this case. It was his right not to do so and his decision not to give evidence may not be used against him.

27 Before I may find the accused guilty of murder, I must be satisfied that the State has proved each of the following elements of the offence to the standard of beyond reasonable doubt. The elements the State must prove are:

(1) that the accused killed Mr Stoodley or Ms Barrett, depending on the charge I am considering;

(3) that the accused intended to cause the relevant victim's death or cause him or her a bodily injury of such a nature as to endanger, or be likely to endanger, the life of that person or another person (lifethreatening injuries).

28 If I am satisfied that the State has proved the first two elements but not that the accused had a specific intention to kill or to cause lifethreatening injuries, the accused will be guilty of manslaughter of the relevant victim.

29 Because of the admissions made by the accused (exhibit 1), it is not in dispute that the State has proved the first element of the offence in respect of both the victims.

30 It is unlawful to kill any person unless such killing is authorised or justified or excused by law: Criminal Code s 268. Putting to one side the insanity defence, no issue of unlawfulness arises for my consideration. I will state the relevant principles of law which apply to the insanity defence in the next section of my reasons.

31 As the issue of insanity has been raised in this case, the third element of murder falls to be determined only if the accused has failed to satisfy me on the balance of probabilities of the insanity defence: Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 [25] (Kennedy J). If I get to consider the third element, the State must prove that the accused, at the relevant time, either subjectively intended to kill the victim or intended to cause life-threatening injuries. Proof of an intention to cause lifethreatening injuries requires proof of subjective and objective elements. The State must prove that the accused subjectively intended to cause bodily injuries which objectively endangered life, or would be likely to endanger life. The time to be considered is the time when the injury is inflicted.

32 The accused does not dispute that the bodily injuries which he caused each victim were objectively lifethreatening. He denies that he subjectively intended to either cause death or cause a bodily injury which was lifethreatening.

33 In deciding whether or not it has been established that an accused had an intent to cause a specific harm, all the surrounding circumstances must be considered. These circumstances include the accused's state of mind at the time, what he said and what he did.

34 In deciding whether or not it has been proved that the accused did have a specific intent, intoxication, whether complete or partial, and whether intentional or unintentional, should be regarded for the purpose of ascertaining whether such an intention in fact existed: Criminal Code s 28(3).

35 Intoxication, whether by drink or drugs, does not mean that a person is not guilty of an offence. A person, when intoxicated, may form the necessary intent and if he does and he acts upon it, he does not escape responsibility because the intoxication made him more aggressive or belligerent than he would have been if he had been sober. On the other hand, an accused can become so intoxicated that he acts without intent or cannot form an intent.

36 Every person is presumed to be of sound mind, and to have been of sound mind at any time which is in issue, until the contrary is proved: Criminal Code s 26. Thus, the accused has the burden of proving that he was not of sound mind at the time he killed each of the victims. He must prove this on the balance of probabilities: R v Porter [1933] HCA 1; (1933) 55 CLR 182.

37 This case involves a consideration of the Criminal Code s 27(1) and s 28(1) and s 28(2). Those subsections state:

(1) 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.

...

(1) Section 27 applies to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means.

(2) Section 27 does not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not.

...

38 The phrase 'mental impairment' is defined in the Criminal Code s 1 to mean 'intellectual disability, mental illness, brain damage or senility'. The accused says that he had a mental illness at the time he killed Mr Stoodley and Ms Barrett. Mental illness is defined to mean:

An underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.

39 The Shorter Oxford Dictionary defines 'pathological' to mean 'pertaining to or dealing with pathology'. In turn, it defines pathology to mean either 'the science or study of disease; that department of medical science, or of physiology, which treats of the causes and nature of diseases, or abnormal bodily affections or conditions'.

40 In Radford (1985) 20 A Crim R 388, 396, King CJ, sitting in the South Australian Court of Criminal Appeal, made the following points when considering the meaning of the expression 'disease of the mind' used in the law of insanity:

(1) 'disease of the mind' is synonymous with 'mental illness';

(2) a temporary disorder or disturbance of an otherwise healthy mind caused by external factors is not properly regarded as a disease of the mind;

(3) major mental diseases or psychoses such as schizophrenia are clearly diseases of the mind as are physical diseases, such as psychomotor epilepsy and arteriosclerosis, when they affect the soundness of the mental faculties;

(4) disease of the mind is to be distinguished from 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of selfcontrol and impulsiveness' (R v Porter); and

(5) in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called '"defect of reason" in the M'Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli'.

41 King CJ's comments were discussed and generally approved in the judgments in R v Falconer [1990] HCA 49; (1990) 171 CLR 30.

42 It is agreed that what is a mental illness is a question of law for the judge. Whereas whether or not the facts disclose a state of mental illness is a question for the decider of fact.

43 The phrase 'capacity to control his actions' is not defined in the Criminal Code. In The State of Western Australia v Strabach [No 2] [2012] WASC 227, Commissioner Sleight considered the meaning of the phrase and said:

What is meant by the expression 'the capacity to control her actions' is not defined in the Criminal Code. In the High Court decision of R v Falconer [1990] HCA 49; (1990) 171 CLR 30, Mason CJ, Brennan and McHugh JJ [13], and Deane and Dawson JJ [12] referred to an automatism due to an unsoundness of mind. An automatism is a state of mind in which a person's actions occur independently of his or her conscious will; that is, involuntarily. A classic example of an automatism often given is a person sleepwalking. However, the High Court in R v Falconer was dealing with the question of an automatism and in my opinion was not seeking to define the full meaning of the expression 'capacity to control' in s 27. Murray J in The State of Western Australia v Hone [2007] WASC 64 [22] stated that the capacity to control meant the capacity to 'decide whether or not to perform the acts which caused' the offending behaviour.

I believe the words 'capacity to control' must be given their ordinary natural and everyday meaning. The Oxford dictionary defines 'control' as meaning 'the power of restraining, especially self restraint'. The loss of 'capacity to control' must be a significant impairment of a person's mental processes so as to lose the power or control of selfrestraint. Whether there is a loss of such a capacity is a question of degree. It is clearly relevant in deciding whether a person has lost the power of self restraint (that is the capacity to control his or her actions) to take into account whether the person is suffering from delusional beliefs and thinking; and the extent to which the person is subject to auditory hallucinations [64] [65].

44 The question as to whether the accused had capacity to control his actions requires the accused to prove, on the balance of probabilities, that he was unable to control the conduct comprising his act or acts which caused the death of the relevant victim. It is not sufficient for the accused to establish an inability to control his emotions which led him to form the decision to perform those acts. Rather, the accused is required to establish an inability to control his acts which caused death and he may do this if he can establish a lack of capacity to refrain from a willed action. Such an inability would exist if the accused 'had an uncontrollable impulse to carry out the actions which caused the fatal injuries' or if, although the relevant actions were willed, 'the mind of the accused was not able to control them': R v Cox [2006] SASC 188; R v Telford [2004] SASC 248; (2004) 89 SASR 352, 364 [113] [121].

45 Turning now to the Criminal Code s 28, the Macquarie Dictionary defines 'intoxication' as including:

1. inebriation; drunkenness;
2. Pathol. Poisoning;
3. the act of intoxicating; and
4. overpowering action or effect upon the mind.

46 The Shorter Oxford Dictionary defines 'intoxication' as including:

1. The action of poisoning; the state of being poisoned; an instance of this.
2. The action of stupefying with a drug or alcoholic liquor; the making drunk or inebriated; the condition of being so stupefied or made drunk.
3. fig.

(a) The poisoning of the moral or mental faculties; a cause of this.

(b) The action or power of highly exciting the mind; elation beyond the bounds of sobriety.

47 It is not suggested that the accused was stupefied. In my view, the most appropriate definition of 'intoxication' is 'overpowering action or effect on the mind'. It does not seem to me to be appropriate to speak of a person being inebriated with a drug like DMVF.

48 The Macquarie Dictionary defines 'disordered' to mean 'in confusion' or 'mentally ill'. The online Oxford English Dictionary defines 'disordered' relevantly to mean:

1. put out of order, thrown into confusion; disarranged, confused, irregular; and
2. affected with bodily or mental disorder; out of health; deranged; morbid.

49 In my view, 'disordered' in s 28 means confused or disarranged. Thus, put in other words, the Criminal Code s 28 states that s 27 applies to a person whose mind is confused or disarranged by the overpowering action or effect on the mind of a drug, if the intoxication is caused without intention on his part. It is clear from what I have said that it is unnecessary for the purpose of s 28(1) that a large amount of the drug has to be consumed.

50 The defence case is that at the time of each killing, the accused was mentally impaired by reason of decompensated PTSD which occurred as a result of his complete detoxification from methadone and that he had a disordered mind as a result of intoxication by DMVF, to which he had an adverse reaction when it was prescribed to him. He says that the combined state of mental impairment and disorder by intoxification deprived him of his capacity to control his actions.

51 The accused was born on 31 July 1964 in suburban Perth. He is the middle child of five siblings. He was raised by his mother and father in Perth. He had a difficult childhood for a number of reasons. Between the ages of 9 and 13, approximately, he was repeatedly sexually assaulted by a male friend of his father. The same perpetrator assaulted some of his siblings. When his siblings disclosed the abuse, they were believed and the perpetrator was charged with offences relating to their abuse. However, when the accused disclosed his abuse, whether or not he was believed, the perpetrator was not charged with any offences relating to him and his complaint was not treated seriously.

52 He recalls, as a child, being repeatedly physically assaulted by his father and his father demeaning him by calling him 'dumb'. The physical assaults only stopped when the accused developed physically and was able to stand up to his father. Apart from the physical violence, the accused had a poor relationship with his father who he believed provided inadequate financial and emotional support to the accused's family (exhibit 29, page 82).

53 The accused is dyslexic but this was not diagnosed during his school years. As a consequence, he did not perform well at school and he was placed in a special class with children with learning problems. He felt stupid and inferior to other students. He was bullied by other students and, again, this only stopped when he physically retaliated. He was expelled from school at 14 after he assaulted a teacher.

54 The accused suffered from rheumatic fever and had to have an extended period away from school when he was in year 8. He also suffered from asthma.

55 The accused married early and has two children from that relationship. The marriage failed quickly. He soon entered into another relationship and had another child. By the age of 21 he had three children (exhibit 29, page 82).

56 In his early 20s he had some anger management counselling.

The accused's early substance abuse and drug use

57 The accused started to abuse substances when he was a teenager. The precise history of his substance abuse is not known to me. However, he was a polysubstance user who had become a heroin addict by his mid20s. He has remained addicted to opiates since then although he has abstained from opiate use at times.

58 On 17 August 1990, when he was 26, the accused was admitted to Next Step (then the Central Drug Unit) for heroin detoxification. Next Step is the drug and alcohol service provided by the Western Australian Department of Health. On admission he was asked whether he had had any treatment for psychiatric problems and he said that he had done anger control counselling but stopped it because he was 'going to smack' the psychiatrist (exhibit 29, page 78). He also said that as an adolescent he had assaulted his father and his brothers.

59 He stayed at Next Step for two weeks and in that time he received clonidine (brand name Catapres) and Temazepam for several days and thereafter was drug free. Clonidine is a brand name for a medication which is used in opiate detoxification to decrease blood pressure, lower anxiety and as a sedative. On 22, 23 and 24 August 1990, the progress notes report that the accused was at times angry and aggressive about different matters. On other days, it seems that he was in relatively good spirits, although at times he was described as feeling 'down', as having guilt issues and being tearful (exhibit 29, page 93 94). The discharge summary reported that the accused had a lot of guilt issues mainly arising due to his inability to honestly express his feelings. It said that he was encouraged to see himself in a positive light and to express himself honestly and appropriately, rather than to resort to anger/aggression (exhibit 29, page 98).

60 On 3 October 1990, the accused again presented at Next Step. He had relapsed in the interim and was 'stoned' on admission (exhibit 29, page 103). He was prescribed clonidine and was otherwise drugfree during the two weeks he was an inpatient (exhibit 29, page 109). On discharge, he was admitted into Cyrenian House, which provides a residential drug rehabilitation programme (exhibit 29, page 119). I do not have any evidence as to his progress there. Whilst in Next Step, he was described as tearful, sad and confused at times but otherwise his mood was good. There is a reference in the progress notes to him acknowledging that anger was his way of asserting himself. He received counselling about ways to communicate (exhibit 29, pages 111 116).

61 His daughter, KristyAnn Hope Moore, who is now 29, recalls an incident in approximately 1993 when she saw her father injecting heroin in the bathroom of their family home. She said that her father almost smashed her head into the wall and then he 'lost control with everybody' that was at the home. She saw him hit her uncle with a chair and she saw afterwards that her mother had two black eyes which she was told was the result of her father's violence on that occasion. She said that her parents separated when she was 13 and that she only saw her father sporadically after that until 2009.

62 On 25 May 1995, the accused was again admitted to Next Step. On admission he said that he had not used opioid until February 1995 when his wife had left him. Since then, he had been using extensively, he was under the influence when he was admitted (exhibit 29, page 125). Two mornings later the progress notes record that he displayed 'histrionic behaviour, threatening to leave, asking for Serepax [and] eventually decided to discharge himself' (exhibit 29, page 130).

63 On 10 October 1997, the accused went to Next Step and it seems that he was placed on methadone, although he was also using opioid. On that date, his mental state was assessed as alert and nonhostile (exhibit 29, page 181). On the basis of Next Step's records, it does not seem as if he stayed on methadone for very long at that time.

64 The accused has also abused other drugs, including cannabis, alcohol and benzodiazepines, over most of his adult life.

65 The accused was diagnosed with depression. When the accused was in custody in September 1998 he was prescribed dothiepen (brand name Prothiaden). He took it for three weeks, said that he did not want it and stopped taking it. On 19 July 2000, he told a prison psychologist that he was depressed and something was wrong with his head (exhibit 30, page 225). When he was in custody in May 2001, he was prescribed dothiepin. He took two doses and then refused to take it, reporting that it made him 'aggro'. He was prescribed fluvoxamine (brand name Luvox) in June 2001 but stopped taking it within days reporting that it made him feel very uncomfortable. Both dothiepin and fluvoxamine are antidepressant drugs. I refer to them and other drugs to which I refer to, in more detail later in these reasons when summarising Professor Joyce's evidence. However, he took other antidepressants, such as amitriptyline, without complaint. On 3 May 2001, he complained that his level of agitation was increasing due to a reduction in his dose of amitriptyline. The nurse to whom he complained recorded that he appeared agitated and restless.

66 From May through to December 2001, the accused was also prescribed chlorpromazine, an antipsychotic which is milder than olanzapine. On 11 December 2001, after he ceased to take the medication, he reported feeling increasingly agitated. Anger and anxiety were his issues.

67 The accused has appeared regularly in the criminal courts. He first appeared in the Children's Court at the age of 13. According to a psychiatric report completed in September 1991, the accused's record in that court consisted of offences of break and enter, threatening words, assault and drunk and disorderly conduct. His adult court record includes convictions for armed robbery, break and enter, forging and uttering, fraud, stealing, receiving, assault occasioning bodily harm and stealing with violence. Between 7 September 1998 and 11 August 2004 (a period of 5 years and 11 months), the accused spent 4 years and 3 months in custody. This record is only relevant to the issue of his psychiatric presentation at the time of the killings.

68 The accused was in custody in Western Australia in 2000 when he engaged in counselling with a clinical psychologist for a period of eight months. In 2002, he saw a prison psychologist and on 9 October 2002, he presented 'with a moderate level of anxiety and psychomotor agitation' which settled as the consultation continued. He was also in custody in 2002 when he completed a violent offending treatment programme (VOTP). The programmes' officer and facilitator who completed a report at the end of that programme noted the following:

[The accused] recognised that he had a controlling approach to most issues by being selfcentred, manipulative and having rigid beliefs which he interpreted frequently in an irrational manner (exhibit 30, page 559).

Of significant interest was [the accused's] disclosure of his approach and style within his interpersonal relationships. These appeared to follow a pattern of him being overprotective and overcontrolling which frequently resulted in his partner engaging in disloyal acts. Consequently, [the accused] ruminated and resentment built up toward the male perpetrator often resulting in acts of violence (exhibit 30, page 559).

70 In respect of anger control problems, the authors said:

In general [the accused] reacted to the stressful lifestyle he lived. His own perceived 'worthlessness' through from childhood, built up and emerged as anger or on occasion violent outbursts. His disclosure of childhood abuse and its impact also contributed to his frustration and anger control problems. He displayed intense physiological arousal, knots in his stomach, heart racing and sweating when discussing 'bullies'. He reflected back to his childhood and the anger of this created for him when he had been on the receiving end of this type of behaviour. When [the accused] realised his physical size was 'bigger' than other kids of his age he started to seek revenge. He stated, 'I loved every moment of it' retaliating and attacking the bullies as often as he could. This behaviour continued into adulthood when he became the 'protector' of anyone he perceived as being picked upon or bullied. This generally resulted in impulsive acts of violence (exhibit 30, page 560).

71 The accused successfully completed the VOTP. The authors noted that it was commendable that he actively engaged, displayed high levels of participation and a strong commitment to his treatment needs. At that point he was committed to remaining drugfree when in the community. Despite this, the psychologist who saw the accused on 9 October 2002 noted:

[The accused] harbours quite strong views about 'the system' and the nature of the prison population. Despite his presenting maturity and 'apparent' treatment gains from the VOTP, [the accused] harbours quite narrow and biased views regarding 'the system' and Aboriginal people, more so Aboriginal prisoners. Despite these views [the accused] appears to be able to control and meter his attitude and behaviour in order to reduce the likelihood of opinionated and conflictual stances that could easily give rise to clashes with others (exhibit 30, page 216).

72 At times when the accused accessed the prison counselling service, he was noted to be in good spirits, relaxed and talkative. On the other hand, he was also at times agitated and irritable (eg 5 March 2003).

73 The accused was released from custody in April 2003 and, at the beginning of August 2003, he selfreferred to Next Step. He reported that he had been using heroin on and off for seven weeks. He was taking an antidepressant prescribed by his general practitioner, but was unaware of the name of it. He said that he wanted to cease using drugs and did not want to recommence on methadone or another opioid substitute. It was planned for him to attend counselling at Next Step. The accused attended at least six counselling sessions up until 25 March 2004. The notes of those sessions disclose that the accused was at times anxious and tearful. He was concerned about speaking about matters which upset him as such discussions resulted in flashbacks, nightmares and increased use of opioid. The accused returned to custody in July 2004.

74 On 3 August 2004, whilst the accused was in custody he was reported as being 'highly agitated' and threatening selfharm with blades he had collected from a disposable razor. He later admitted that the threats were used so he could see a doctor about his medication (exhibit 29, page 546). He was started on methadone on 5 August 2004 and was released from custody in Western Australia on 11 August 2004.

75 On his release, his methadone was supervised by Next Step and its records state that on 25 September 2004 the accused was prescribed Largactil, an antipsychotic, and sertraline (brand name Zoloft), an antidepressant.

76 In December 2004 the accused moved to Queensland and continued to use methadone. Whilst living in Queensland the accused did not incur any criminal convictions. By the time he returned to Western Australia, he was on 110 mg of methadone a day, which is a high dose.

77 The accused returned to Perth in 2009 after the breakdown of a relationship. He reconnected with Ms Moore, and lived with his daughter, her husband and children, in suburban Perth, for six weeks. He then moved to his own premises in Maylands. The accused was still on the methadone programme and his life was stable. He did a course to enable him to work in the aged care industry and his behaviour towards his daughter and grandchildren was appropriate.

78 On his return from Queensland, the accused was registered with Dr Connor as his methadone prescriber. Dr Connor is a general practitioner who practices in the area of addiction medicine. Dr Connor first saw the accused in December 2009, although other practitioners in the same practice had seen the accused earlier that year. Dr Connor said that the accused was always polite, was on time for his appointments and well presented. He was allowed three takeaway doses per week of methadone, which is the maximum number of takeaway doses allowed. That privilege is only afforded to patients who are very stable. Dr Connor said that the accused demonstrated a genuine desire to recover from his addiction. In October 2010 the accused initiated his own reduction off methadone because he thought that he was ready to do so. He then worked with Dr Connor over a long period leading up to August 2011 to reduce his intake. In addition to methadone, Dr Connor prescribed the accused a low dose of diazepam (brand name Valium) for anxiety, agitation and sleep problems. The accused has suffered from these conditions for most of his adult life.

79 In September 2010, the accused moved back to live with Ms Moore and her family and he continued to live with Ms Moore until his arrest for these offences. The accused could not get work in the aged care industry because of his drug and criminal history. Ms Moore gave evidence that before he moved back in with her, the accused was 'a little bit down' but that he was in a better mood when he was living with her. Again, his behaviour was appropriate and he helped Ms Moore care for her children.

80 On 13 October 2010, the general practice notes record that the accused was depressed and unable to find work. He did not wish to take an antidepressant. He had commenced reducing his methadone, but had used homebake heroin in the last two months due to his despair and frustration. The accused continued to reduce his methadone and this was supervised by Dr Connor.

81 On 23 March 2011, Dr Connor recorded that the accused said that he felt 'like shit'. Insomnia was his main problem. He was taking two to three diazepam each morning and the accused believed he needed them for anxiety. He was down to 55 mg of methadone per day.

82 On 27 April 2011, the accused again saw Dr Connor. He reported that he was depressed and anxious. He did not want to live, although he was not suicidal. He lacked energy and was depressed. Dr Connor prescribed DMVF (brand name Pristiq), at a rate of 100 mg tablet each morning. DMVF is an antidepressant and a member of the class of drugs called serotonin noradrenaline reuptake inhibitors (SNRIs).

83 The accused saw Dr Connor again on 18 May 2011. The accused reported that he had had a great result after a few days on DMVF. He had initial hot flushes (a recognised side effect) but within three days these were fine. He said he had no more anxiety. His mind was at ease in the evening, his mood was improved and he was not suicidal. Dr Connor noted that the accused was 'VERY happy'. He was continuing to reduce his dose of methadone.

84 When the accused saw Dr Connor next on 15 June 2011, he reported that he was much improved on DMVF but had noticed his 'head started to go again' so the accused had increased his dose to 150 mg per day 10 days earlier. This was in accordance with Dr Connor's prescription. From memory, Dr Connor thinks that his head starting to 'go' was a reference to the accused's chronic symptoms of anxiety, agitation, irritability, insomnia and low mood. The accused was reducing his methadone at the rate of 5 mg per week and he was down to 30 mg per day.

85 Dr Connor noted that the accused's diazepam intake had increased from two per day to five to six per day and that the accused was using these for sleep and leg cramps, which were associated with his methadone withdrawal. Dr Connor was concerned about the accused's use of diazepam and had a long discussion with the accused about it. Dr Connor told the accused that he was not to use diazepam for methadone withdrawal symptoms other than for insomnia. The DMVF was being used to treat his anxiety.

86 Dr Connor saw the accused on 6 July 2011 and noted that the accused's mood was 'fine'. Similarly, on 20 July 2011, Dr Connor noted that the accused's mood was buoyant and his detoxification was going well. He was taking 15 mg of methadone per day. His diazepam use was three tablets per day. Plans were made for inpatient methadone detoxification.

87 On 2 August 2011, the accused was admitted as an inpatient to Next Step to undergo complete detoxification from methadone. The accused was supposed to stay at Next Step for approximately two weeks. However, he discharged himself against medical advice on 7 August 2011.

88 On admission, a clinician noted that the accused had been taking about eight diazepam per day for the past two weeks, although Dr Connor's prescription was for no more than four per day. In addition to his prescribed medications, it was noted that he was a current but irregular user of cannabis and that he occasionally drank beer. The treatment plan was to allow diazepam to be given to the accused at his prescribed dose, although there are no records from Next Step in evidence which record him having been given any diazepam whilst he was an inpatient.

89 On admission, it was noted that the accused was pleasant, goodhumoured, cooperative and appeared wellmotivated. He described himself as 'happy'.

90 On 3 August 2011, the accused was started on 100 mg of clonidine. He was not being given any methadone and there is no evidence that he was given DMVF.

91 The progress notes record that at 8.00 pm on 3 August 2011 the accused had an outburst and started to use 'language' because he did not want to attend ward relaxation. It was noted that he joined in and apologised for his actions. He said that he was angry with himself not anyone else.

92 On 4 August 2011, the accused spoke to a counsellor and the counsellor noted that there was an issue that he suggested the accused speak to a psychologist about. Otherwise, there is nothing untoward noted in the progress notes for that day.

93 On 5 August 2011, the accused was prescribed 2.5 mg of olanzapine (brand name Zyprexa) for sleep. Olanzapine was initially marketed as an antipsychotic drug but it is also used as a mood stabiliser and regulator. There are entries in Next Step's progress notes for the afternoon of 5 August 2011 which record that the accused had an elevated mood and, later, had racing thoughts. At 9.30 pm it is noted that he was 'observably agitated'. The accused was given his first dose of olanzapine at around 10.00 pm on 5 August 2011.

94 On the afternoon of 6 August 2011, the progress notes report that the accused was tearful and had talked about his childhood sexual abuse. Later in the afternoon it was noted that he appeared settled but was hyperactive at times. He is also reported as having had an elevated mood and behaviour. He was pleasant on approach and had minimal withdrawal symptoms.

95 On 7 August 2011, it was noted that the accused was interacting well with others but required 'limit setting' when interrupting. It was said that he was accepting of that. He was invading other people's space but was easily redirected. There were no management problems. However, later the same evening, it was noted that the accused had an elevated mood and he was overfamiliar with a female patient. Some examples of his inappropriate behaviour were noted in the progress notes.

96 On 8 August 2011, the progress notes record that on Saturday, 6 August, the accused had a flashback to his childhood sexual assaults and that he wanted to kill the perpetrator. It was noted that he was able to be distracted. It was noted that he had seen a counsellor and was agreeable to receive ongoing counselling. It was also recorded that the accused had some issues with other clients and that he had brought up inappropriate topics with some. No warnings were given to him at this stage.

97 The final record on 8 August 2011 states that the accused became upset at what he perceived to be unfair treatment of another patient and he had discharged himself against medical advice.

98 The Next Step discharge summary notes that whilst an inpatient, the accused was 'comfortably managed' on clonidine and small doses of diazepam. A I have stated, the drug chart does not record that he was administered any DMVF or diazepam whilst an inpatient.

99 The incident which led to his discharging himself was recorded on the discharge summary as to being with another male client. Since then, the accused has told others that he had an altercation with an 'alpha male' who called him 'dumb', knowing that this would upset him and remind him of his father's treatment of him.

After discharge from Next Step: 8 19 August 2011

100 The accused returned to Ms Moore's home and she testified that he was aggressive, erratic, would not sit still and was determined to get his point across. She said that his mood was 'very up and down'. He could be happy, angry, sad and guilty in quick succession. She said that the accused was preoccupied with his 'black rage' and the incident at Next Step. He would repeatedly tell people to whom he was speaking about the incident. He said that he wanted to hurt the person at Next Step who had made him angry. He also expressed anger towards his father's friend, who had assaulted him when he was young, and his father. The incident at Next Step made him remember his anger at the perpetrator and his father.

101 Ms Moore spoke to her father about his behaviour and he acknowledged to her that he needed to obtain help.

102 Shortly after the accused left Next Step, he met Mr and Mrs Eves on a suburban street. Mr and Mrs Eves knew the accused and the accused sold cannabis to Mr Eves. The accused told Mr and Mrs Eves that he had been in Next Step and that he had got into a fight there. He demonstrated to them how he had put a headlock onto the person he had fought with by putting a headlock onto Mr Eves. When he demonstrated his action he was loud, angry, agitated and very defensive. Mr and Mrs Eves said that the accused only released Mr Eves when a police car pulled up a short distance away. They then used that opportunity to quickly make their excuses and walk away.

103 On 9 August 2011, the accused saw Dr Connor. He told Dr Connor that he had left Next Step early due to disagreements. He said that he had not completed the methadone detoxification and had a left frontal headache. He wanted some clonidine. Dr Connor told him to increase his dose of DMVF to 200 mg per day.

104 Dr Connor noted that the accused was agitated, aroused and tearful at times. There was no obvious intoxication or withdrawal symptoms. Dr Connor determined that there was no formal thought disorder, psychosis or obvious mania. Dr Connor prescribed clonidine and diazepam.

105 Another person who saw the accused on a number of occasions after he came out of Next Step was Ms Phillips. Ms Phillips is a pharmacist who worked in a chemist in Maylands. She knew the accused because she had dispensed his methadone on a daily basis in 2009 2010, until he moved to another chemist. He dropped in occasionally after that, sometimes with his friend, Simon SutherlandMcCourt, who was also a registered methadone user.

106 Mr SutherlandMcCourt and the accused had first met each other in prison many years earlier. They had befriended one another when the accused returned from Queensland as they lived in the same area and attended the same chemist. Mr SutherlandMcCourt leased a residential unit, 10/12 Tenth Avenue, Maylands. The accused and Mr SutherlandMcCourt were very close friends and saw each other numerous times each week after the accused returned from Queensland.

107 Soon after the accused discharged himself from Next Step, the accused visited Ms Phillips at the chemist with Mr SutherlandMcCourt. She said that he was overjoyed about having detoxified from methadone. He was very happy, friendly and chatty as he was usually. The accused told her that he had had an argument with a man at Next Step and that he had got quite angry. She said that when he spoke about that incident he was very upset, distressed and in tears.

108 On 10 August 2011 he visited the pharmacy alone. He asked to speak to Ms Phillips separately and expressed concern to her that Mr SutherlandMcCourt's takeaway doses were being either taken by or given to the deceased, Mr Stoodley. The accused was quite agitated and was not his usual friendly or happy self. He appeared to Ms Phillips to be quite upset and worried about the situation with Mr SutherlandMcCourt and Mr Stoodley.

109 Mr SutherlandMcCourt also was a friend of the male deceased, Mr Stoodley. The accused knew Mr Stoodley through Mr SutherlandMcCourt. In August 2011, Mr Stoodley was living with Mr SutherlandMcCourt. Mr SutherlandMcCourt's unit only had one bedroom so Mr Stoodley slept on a makeshift mattress on the living area floor. Mr Stoodley and the female deceased, Ms Barrett, were girlfriend and boyfriend. Their relationship was sometimes volatile. Ms Barrett had her own place of residence, but she also sometimes stayed at Mr SutherlandMcCourt's unit with Mr Stoodley.

110 The accused asked Ms Phillips to tell Mr SutherlandMcCourt that she knew that was happening, to dilute Mr SutherlandMcCourt's takeaway doses, to not give him takeaway doses or to give him a bottle without actual methadone in it. Any of these actions would result in Mr SutherlandMcCourt not to getting his takeaway doses so Mr Stoodley could not to take them from him. Ms Phillips refused to take any of those actions. She said that she believed that the accused understood that she could not do those things. The accused also told Ms Phillips that he was happy that he had detoxified from methadone and he wanted Mr SutherlandMcCourt to do likewise. Ms Phillips filled prescriptions for clonidine and diazepam for the accused.

111 The accused dropped in to see Ms Phillips several times between 10 and 24 August 2011. She noted that on those occasions he was not happy and friendly, either. He was very anxious, very distressed and appeared 'very wideeyed', as if he had not slept. He spoke to Ms Phillips about being in situations where his anger was coming through. He said that people were 'pushing his buttons' and making him react. He felt that he was back in the prison mindset where he had to defend himself all the time and that he was reverting to that angry state of mind. She said he did not appear angry at her and was usually regretful, worried and angry at himself.

112 The accused saw Dr Connor again on 16 August 2011. He told Dr Connor that he was now taking 200 mg of DMVF but he had increased it to 250 mg per day 'recently'. This was consistent with Dr Connor's advice to the accused that he could increase the dose if his symptoms warranted it. The accused also said that he was taking 10 mg of diazepam (two tablets) at night. He denied using other drugs and Dr Connor believed him as he had declined offers of Xanax, another benzodiazepine.

113 The accused told Dr Connor that since leaving Next Step he had assaulted three people, including his soninlaw the previous evening. He said that the DMVF helped him but he had severe anger management problems. He was very agitated, short tempered and had many 'triggers' to violence. The accused told Dr Connor that people 'pushed my buttons' and so he assaulted them. He requested a prescription for Viagra as he believed that it would help his anger if he had sex.

114 Dr Connor recorded that the accused was very agitated, intense, restless and angry but also afraid of the consequences of violence. Dr Connor thought that the accused may have bipolar disorder, the symptoms of which had been controlled by methadone. The medical practitioners who gave evidence variously described the phenomena of opiates or other drugs masking or buffering the symptoms of another illness or personality trait.

115 Dr Connor counselled the accused in regards to his anger, his need to take responsibility for his actions and to stop blaming the victim of his violence. Dr Connor gave him a prescription for olanzapine, which Dr Connor had not previously prescribed but which he had been given in Next Step. He told him to increase his dose of olanzapine from one 5 mg tablet to 10 mg if he had no significant side effects from it. Dr Connor said that he thought that this would calm his agitated state. He did not think that the accused was 'frankly psychotic'. The plan was for the accused to be reviewed by Dr Connor on 30 August 2011.

116 Later, on 16 August 2011, the accused came to Ms Phillip's pharmacy and she noted that he was very intoxicated. He was swaying and slurring his speech. He could not put his PIN number into the Eftpos machine. The accused told Ms Phillips that 'he was worried, he was getting violent and he couldn't' control it'. He told her 'he was getting to rage points, that he was snapping'. Ms Phillips filled two scripts for him, one for olanzapine and the other for Viagra.

117 The parties agree that it was probably the same day that the accused visited Ms Kress, a female acquaintance, who lived with her fiancé in a unit in Maylands, which could be seen from Mr SutherlandMcCourt's unit. The accused told Ms Kress that Mr Stoodley was telling people in Maylands that he (Mr Stoodley) and Ms Kress were having sex. The accused suggested that they should play a mind game with Mr Stoodley and pretend that they were having sex. He also asked Ms Kress for alcohol and she gave him half a bottle of Jim Beam. He told her that if she told anyone that he had told her about Mr Stoodley, he (the accused) would hit her. He said that if she did not go along with his plan to simulate sex, then he would kill her. Ms Kress agreed to go along with the plan because she was fearful of her safety. Together they went onto her balcony and pretended to have sexual intercourse. Ms Kress did not see Mr SutherlandMcCourt or Mr Stoodley, but she believed that the accused thought that they would be watching. Afterwards they went back inside the unit and the accused had some Jim Beam.

118 A short time later, Mr Doyle (Ms Kress' fiancé) arrived home. The accused shook Mr Doyle's hand very tightly and Mr Doyle thought that he was trying to be dominant. He also moved into Mr Doyle's personal space and put his face very close to his. He told Mr Doyle that people, like Mr Stoodley, had been spreading rumours about Ms Kress. Mr Doyle could tell that the accused had been drinking although he said he did not appear to be drunk. The accused told Mr Doyle that he and Ms Kress were playing mind games with the other people who were spreading rumours. He asked Mr Doyle to promise not to tell Mr Stoodley. He told Mr Doyle that he had knocked out someone because they did not keep their promise. He said that they were going to 'play mind games with the other side'. He also told Mr Doyle that he should go and sort Mr Stoodley out because he was spreading rumours about Ms Kress. Mr Doyle said that he would go and sort it out but he was not violent. The accused said that if he wanted to go and kill Mr Stoodley for disrespecting Ms Kress, then the accused would go to gaol for him. The accused then left.

119 The next day, at about 3.30 pm, the accused again visited Ms Kress. When she opened the door, he was on his knees holding a bunch of flowers. He said that he wanted to apologise for threatening Mr Doyle. He told Ms Kress that he gets 'vicious on bourbon'. He said that a couple of weeks before he had hit Mr Stoodley because Mr Stoodley had been going out to purchase drugs.

120 The accused entered Ms Kress' unit and told her that he wanted to keep the mind games going. He told Ms Kress that Mr Stoodley made him money by selling drugs for him. He also said that Mr SutherlandMcCourt and Mr Stoodley thought that he was visiting Ms Kress for sex and that he bought the flowers not only to apologise, but also to make it look like they were a couple, which was consistent with the mind games. Together they went out onto the balcony and again pretended to have sex. As Ms Kress left the balcony she heard Mr Doyle putting his keys in the door. When Mr Doyle came inside he was angry that the accused was there and the accused left shortly afterwards. After he did so, he asked Ms Kress to give him his beer that he left at her unit.

121 Another friend of the accused's, Mr Horstead, said that after the accused detoxified from methadone he 'just went loopy'. He said that the accused would say things such as 'the world is run by the devil, there's no such thing as God'. On about 16 August 2011, Mr Horstead saw the accused on Eighth Avenue in Maylands. He said that the accused's eyes 'were scary, his pupil was big and black, like the devil'. The accused said something to him like 'insanity, like I'm insane, I can kill people'. The accused then said 'Jim just tell me insanity, insanity, insanity and I won't kill anyone'. He then said 'some prayer thing'.

122 Also on 17 August 2011, the accused visited Mr and Mrs Eves' home. Mrs Eves was at home with their newborn baby and Mr Eves was at work. The accused rang and spoke to Mrs Eves and told her that he had spoken to Mr Eves and Mr Eves had said that it was okay for him to visit. When he arrived Mrs Eves noted that he was very upset, distraught and very angry. He told her that he had been in a fight earlier that day. She said that he was crying quite a lot. He was both upset with himself and angry at someone else. He told her that he was upset with his soninlaw who he had punched in the face. He stayed for an hour or two and then left to visit a friend in an apartment on Tenth Avenue, Maylands. It may have been at this time that he went to apologise to Ms Kress.

123 Mr Eves arrived home late in the afternoon and the accused returned to their home. He stayed for a number of hours. Mr and Mrs Eves describe his behaviour as very erratic, his speech was very fast and he could not sit still. Late in the visit he challenged Mr Eves to a physical fight. He told Mr Eves that he wanted to hurt him, have sex with Mrs Eves and sexually interfere with their baby. Mrs Eves told him that he was scaring her and he had to leave. The accused told them that he was going to go and hurt someone else and that he was also going to hurt Mr and Mrs Eves. However, he eventually left without physically assaulting any of them. Mrs Eves recalled smelling alcohol on the accused on the two occasions he visited her home. Mr Eves, however, did not smell any alcohol on the accused. The accused also told Mrs Eves that he had alcohol in his backpack. When he left their home he said 'someone is going to die now'. The accused's behaviour was very disturbing but they did not call the police.

Incident with the accused's father and subsequent arrest and bail: 19 22 August 2011

124 After the accused left Next Step his initial, main topic of conversation with Ms Moore was what had happened there. But after a while he started to ruminate on his childhood sexual abuse and relationship with his father. The accused spoke to Ms Moore about going to visit his father and spoke to her about harming him. Ms Moore had told him that he could only go and see his father if he did not hurt him. The accused made a promise to his daughter that he would not harm his father and proved this to her by burning the back of his hand with a cigarette. Ms Moore then agreed to take her father to see her grandfather.

125 At about midday on 19 August 2011, Ms Moore dropped the accused at his father's home. She did not go inside and she went and did other chores. At about 2.30 pm she received a phone call from the accused to say that there was progress and he wanted to stay longer to have more conversation with his father. At about 4.00 pm she returned to her grandfather's home. When she knocked on the door there was no answer so she returned to her car. When she was in the car she got a phone call from her father telling her to open the boot and to get into the car. She did this and she saw the accused put a basket of towels into the boot of her car. Unbeknownst to Ms Moore, a number of her grandfather's guns and some ammunition were hidden in the basket. They then returned to Ms Moore's home.

126 In the early hours of the morning of 20 August 2011, the police arrived at Ms Moore's home. Her grandfather had complained to the police that the accused had threatened him with violence and stolen firearms from his house. The police found the firearms both in Ms Moore's home and in the boot of her car. The accused was arrested and spent time in police custody and at the police watch house.

127 At 8.45 am on 20 August 2011, the accused was interviewed by the police about the incident at his father's home. The accused was aware of the incident that he was being interviewed about and was able to give an account of it. He told the police about the insults and assault from his father when he was a child and of the childhood sexual abuse. He was at times angry and shouting about those matters. At times, he had an elevated mood. His memory of the earlier incidents and of the incident the day before with his father appeared good. He gave an account of the incident with his father to the police which, to a large extent, exculpated him (the accused) and attempted to make him the victim of his father's unreasonable behaviour. He told the police that he had convinced his father that he should give his guns to him. He said that he did that because his father was too old and not in an appropriate mental state to keep the guns. He said that he had intended to give the guns to his sister to take to the police. He said he would not take the guns to the police himself because he was a criminal. He said that if the police had pulled his daughter over whilst the guns were in her car, then he would have been pleased for the police to have found them. He attempted to paint himself as having done the right thing by taking the firearms. When he was asked why he had taken the firearms, he said:

To save his life or someone else's more than likely (ts 30).

128 The police asked him whether he had been aggressive towards his father and he denied that. They also asked him whether he had been threatening towards his father and he said:

That's why I did that, every time I felt like getting angry because he was making me angry, that stopped it, because I could feel it (ts 18).

129 He was referring to using a cigarette to burn the back of his hand.

130 The interview with the police concluded at about 9.30 am. The accused was then taken to the Perth police watch house where he arrived at 10.11 am. Shortly afterwards he was offered diazepam but he refused to take it on the basis that although the bottle stated that the prescription was one tablet four times a day, the accused asserted he should be taking four tablets, four times a day. He was also screaming obscenities and was angry because he had not arrived at the watch house in time to appear in court that day. He asked to see a nurse and threatened to kill himself. He also told a custody officer that he had been raped as a youth and that he would not spend two nights in custody. He said that it would take 10 staff to restrain him. He continued to be physically restless and to threaten selfharm. The threat of selfharm appeared to be linked to his desire not to be remanded in custody. A justice of the peace refused him bail in light of objections to bail presented by the interviewing officer.

131 The watch house contacted the mental health authorities and a mental health nurse from the Community Emergency Response Team (CERT) went to the watch house to assess the accused. The accused was cooperative with the assessment. The nurse noted that 'a tenuous superficial rapport was possible' and recorded that the accused's intentions were to portray himself as a victim and to have his medication demands met. His speech was loud with mildly pressured rate and normal flow. There was no evidence of articulation disturbance. He told the nurse that anger was welling up inside him and he was feeling like his 'gaolhead' was coming on. He said that he was going to lose it unless he was given something to 'chill' him. He told the nurse that he was prescribed four diazepam tablets four times a day and to call Dr Connor who would confirm that.

132 The nurse recorded that the accused's affect was mildly aroused and agitated with palpable underlying anger suggesting controlled aggression. His demeanour appeared contrived and designed to manipulate, intimidate and control. The accused displayed no evidence of formal thought disorder. Although the accused alluded to suicidal and homicidal ideation, it was said that this was without any convincing conviction. His suicidal references were conveyed as a manipulative threat. The accused did not describe any delusional or overvalued ideas, obsessions, phobias and neither did he display evidence of perceptual disturbance. The accused was alert and oriented to place and person but not the time, day or date. His memory and concentration, although not formally tested, appeared ostensibly intact. The nurse's report stated that although the accused was clearly impulsive with poor anger management, his conduct appeared control and goaldirected. He appeared to have little insight into his behaviour, seeking to project blame for the events which resulted in his arrest onto his elderly, dementing father. It was noted that the accused was observed resting quietly in his cell upon the CERT team's arrival and again upon their departure. CERT arranged for the accused to be prescribed 10 mg of olanzapine and 10 mg of diazepam, both at night. In addition, he was given two Panadol.

133 On 21 August 2011, the accused was still in custody at the watch house. The watch house records note that he was threatening violence and seeking to obtain medications outside of what was prescribed for him. At 1.00 pm he was shouting that he wanted to fight and kill someone or himself. At 3.00 pm it was decided that given the accused's ongoing demands for medication, it would be safe to give him 5 mg of diazepam which he had requested. At 7.15 pm he was given further medication. He was also advised that his family would not be in court the following day. It was noted that he was very upset and asking for medications to calm him down. He received 10 mg of olanzapine and 10 mg of diazepam. The accused did not receive any further medication, apart from paracetamol, before he went to court on 22 August 2011.

134 On 22 August 2011, the accused acted for himself before the Magistrates Court. He applied for and was bailed to live with Ms Moore. Her husband provided surety for him.

135 The audio recording of the appearance before the magistrate is in evidence. When he appeared before the magistrate, the accused was not aggressive or threatening. He was significantly calmer, more cooperative and less confrontational than he had been in the watch house during the police interview. If anything, his demeanour was overly familiar. He was able to justify his actions in taking the guns and keeping them at his daughter's home. He displayed a good memory of the events in question. He told the magistrate that in test firing one of the guns at Ms Moore's home whilst she was out he had thought of the public safety. He said that if he had had a malicious intention he would not have taken the guns to his daughter's home but would have taken them somewhere else and hidden them. He said those things in an apparent attempt to reassure the magistrate. He acknowledged that he was a criminal but said that he had planned to give the guns to his sister to hand over to the police because he had given his father his word that he would not go to the police. He seemed to be well aware of his obligation to be respectful to the magistrate and that this would maximise his chance of obtaining bail.

136 The accused stayed with Ms Moore on Monday, 22 August and Tuesday, 23 August 2011. Ms Moore said that he seemed calmer, but at the same time he was also 'scattered', in that he was jittery. He was not quite as angry but he lied to her about one matter. She again told him that he needed to get help. He spoke to her about going to Narcotics Anonymous. Generally, his behaviour was better than before his arrest. However, there was one incident in public where he was abused by someone and this got him so angry that he rang Ms Moore and arranged for her husband to go and pick him up. Ms Moore said that the accused regarded her as 'his angel' and the only person who could calm him down.

137 On the morning of Wednesday, 24 August 2011, Ms Moore drove the accused to a police station so that he could report to police in accordance with his bail conditions. She understood that after reporting he was going to make enquiries about getting into a residential drug rehabilitation facility called Cyrenian House.

138 About midmorning, the accused went to see Ms Phillips. He appeared to her to be very anxious, agitated and stressed about something. He was similar to how he had been behaving in the previous couple of weeks. The accused told her that he believed that Mr Stoodley was a bad influence on Mr SutherlandMcCourt and that he was bringing him (Mr SutherlandMcCourt) down. He felt very angry towards Mr Stoodley, like he could harm him, and even that he could potentially kill him because he felt so angry. He spoke to Ms Phillips about telling Mr SutherlandMcCourt that she could not give him his takeaways. The accused asked Ms Phillips to tell Mr SutherlandMcCourt that a man called Kieren had said that Mr Stoodley was diverting Mr SutherlandMcCourt's methadone. The accused told Ms Phillips that 'they wanted Kieren dead'. Ms Phillips did not know who Kieren was. The accused also told Ms Phillips that he wanted to look after Mr SutherlandMcCourt, that he loved him and he was his (the accused's) rock. The accused also told Ms Phillips that Mr Stoodley was 'bad news' and that he was causing trouble for both the accused and Mr SutherlandMcCourt. When he said these things he was very hyperactive and agitated. At the same time, he was intrusive, speaking loudly and speaking over Ms Phillips. She noted that he appeared twitchy. Other than that, his speech seemed fine but it was fast because of his anxiety. She suggested to him that he call Next Step. Ms Phillips said that the accused understood that she could not do anything about Mr SutherlandMcCourt's methadone and he said that he would handle it himself. She noted that the accused had cigarette burns on the back of one of his hands and he told her that he had burnt his hand to punish himself. The accused left the pharmacy but returned later that day.

139 When the accused returned, Ms Phillips was on the phone. Next Step had called her to say that it had received an anonymous tip about Mr Simon SutherlandMcCourt. After Ms Phillips got off the phone, the accused told her that he had sorted it (presumably the issue with Mr SutherlandMcCourt and his takeaways). He appeared to be a bit calmer and then he left.

140 On one occasion when the accused visited Ms Phillips he told her that he had taken more than the recommended dose of clonidine and that he had not slept for two weeks.

141 After the accused left Ms Phillips' pharmacy on the second occasion, Ms Phillips saw him walking up and down the street quite quickly, like he was looking for someone. She did not see him again. On 24 August 2011, Ms Phillips dispensed clonidine and DMVF to the accused. The DMVF was dispensed in two boxes, one containing 50 mg tablets and one containing 100 mg tablets.

142 Just before lunchtime the same day, the accused was outside a supermarket in Maylands. He spoke to a woman who was selling raffle tickets there. He talked to her, walked away a bit and then returned to her. She asked him whether he wanted to buy a raffle ticket and he said 'I've got more important things on my mind'. He then said that he had tried to help the police for ages but that they would not listen to him. He also told her that he had been attacked a couple of days before and that he had a pocket knife and a crayfish knife in his pockets. He said he knew the location of the person who had attacked him and that he was going to find him.

143 At about 2.30 pm Ms Moore spoke to her father by telephone and asked him not to come home that evening as his behaviour was causing her stress. She gave evidence that since the accused had left Next Step she had spent a lot of time up late at night talking to her father, she had to attend work during the day and she was not coping. Eventually, over the course of the afternoon, her father agreed to her request and he sent her a text message to say that he would stay with Mr SutherlandMcCourt.

144 Since the accused left Next Step and leading up to the evening of 24 August 2011, Mr SutherlandMcCourt had seen the changes in the accused's behaviour. These changes were similar to those observed by Ms Moore and others. Mr SutherlandMcCourt discussed the accused's behaviour with another friend, Gary Burns, who had a unit on the floor above Mr SutherlandMcCourt's unit. Mr Burns noticed that after the accused got out of Next Step he was not the same person. He was agitated, uncomfortable to be around and could not stay on the one topic of conversation. Mr SutherlandMcCourt also discussed the accused's behaviour with Mr Stoodley. In addition to the changes noticed by Ms Moore, Mr SutherlandMcCourt had noticed the oversexualisation of the accused and his increasing antagonism towards Mr Stoodley and Ms Barrett. Mr SutherlandMcCourt and Mr Burns were so concerned about the accused's behaviour that they had formulated a plan that if he should become violent they would restrain him with plastic ties until they could get help.

145 On 24 August 2011, Mr SutherlandMcCourt accompanied Mr Stoodley and Ms Barrett to a place where the deceased obtained some heroin. This took a number of hours. During this time Mr SutherlandMcCourt received a telephone call from the accused saying that he was at Mr SutherlandMcCourt's block of units but could not get in. Mr SutherlandMcCourt told him to wait for him. The accused waited and was let into the bottom of the apartments by another resident. The accused spoke to the other resident in a relatively normal fashion about everyday matters, such as gardening, for quite a long time.

146 Mr SutherlandMcCourt was concerned about the accused's antagonism towards Mr Stoodley and so persuaded Mr Stoodley and Ms Barrett to stay away from his unit until he spoke to the accused and ascertained his frame of mind.

Fatal events at 10 Tenth Avenue, Maylands: 24 25 August 2011

147 Mr SutherlandMcCourt returned to the block of units on the afternoon of 24 August 2011. Eventually, after overcoming some access difficulties, Mr SutherlandMcCourt and the accused went to Mr SutherlandMcCourt's unit. After speaking with the accused, Mr SutherlandMcCourt decided that it was safe for Mr Stoodley and Ms Barrett to return to his home and they did so. However, the accused was not happy that Mr Stoodley and Ms Barrett were at the unit.

148 Early that evening Mr SutherlandMcCourt went upstairs to see Mr Burns and the accused followed him upstairs. He complained to Mr SutherlandMcCourt that he had what he described as a 'done' headache, referring to a headache brought on by his withdrawal from methadone, and that he was not happy that Mr Stoodley and Ms Barrett were showing signs of heroin use. He regarded this as tempting him to resume opiate use. He also complained that Mr Stoodley had 'dobbed him in' for something and that Ms Barrett had stolen his money. He asked Mr SutherlandMcCourt to get Mr Stoodley and Ms Barrett to leave the unit. He said that if Mr Stoodley and Ms Barrett had not gone by the morning he (the accused) would 'get rid of them, he will kick them out'. Mr Burns said that the accused was not himself. At the end of that conversation the accused may have thought that Mr SutherlandMcCourt was, at the very least, going to get Ms Barrett to sleep at her residence that evening. The accused also asked to borrow money to purchase some alcohol. Mr SutherlandMcCourt gave him some money.

149 The accused may have gone to buy wine or other alcohol. He then returned to Mr SutherlandMcCourt's unit. He went into Mr SutherlandMcCourt's bedroom, lay down on his bed and tried to sleep. After a while Mr SutherlandMcCourt also returned to the unit. He was tired and went into his bedroom to sleep. There was nowhere else for him to sleep, so he lay down on the bed with the accused. It seems that they both slept for a number of hours. In the early hours of the morning, the accused got up and went into the living area. On a couple of occasions Mr SutherlandMcCourt woke up and heard voices including laughter, in the living area. The voices were not raised or angry. However, at some point, the accused's anger at Mr Stoodley and Ms Barrett boiled over. It was at about 6.00 am on 25 August 2011 that the accused attacked and repeatedly stabbed both Mr Stoodley and Ms Barrett in the living area of Mr SutherlandMcCourt's unit.

150 Mr SutherlandMcCourt woke during the course of the attack and heard Ms Barrett screaming. He opened his bedroom door and saw the accused forcefully lunge at Mr Stoodley whilst Mr Stoodley was standing in the living area with a doona around him. Mr Stoodley fell to the ground. He first saw Ms Barrett collapsed on the living area floor crawling towards his room. Mr SutherlandMcCourt tried to pull her into his bedroom and out of harm's way. He noticed that she was bleeding and badly injured. The accused then turned his attention back to Ms Barrett and stabbed her in the back of her left shoulder as she lay in the doorway to Mr SutherlandMcCourt's bedroom. Mr SutherlandMcCourt said that the whole of the blade of the knife went into her back. He recognised the knife as one of his kitchen knives which was usually kept in a knife block on the kitchen table. Mr SutherlandMcCourt yelled 'what have you done'. The accused stopped his assault and wiped the knife that he was holding with a paper bag. He placed the knife in Mr Stoodley's hand and said to Mr SutherlandMcCourt words to the effect of 'they were dogs, they had it coming and they did it to themselves'. He also said 'tell them they did to themselves' and 'I did it for you'. He then picked up his bag and left the unit.

151 Both victims died, relatively quickly, in the living area. Mr SutherlandMcCourt immediately called for emergency services to attend. He moved the bodies to a limited extent in order to try and help them.

Accused's visit to Ms Millen and his arrest: 25 August 2011

152 The accused then made his way by bus and on foot to the home of an old family friend, Terrilee Millen, who lived with her partner, Kenneth Dunn, opposite the home in Nollamara where he (the accused) was raised.

153 Mr Dunn, to the accused's knowledge, was a retired police officer. At about 9.30 am, Mr Dunn heard a voice at the front door. He could see that it was the accused and told him to go around the back of the house. Mr Dunn went out the back door and saw the accused on the back patio. He noted that the accused was dishevelled and had scratches on his face and around his neck. Ms Millen also went out the back and spoke to the accused. She asked him what had happened as she had heard something about the fatal incident on the news. She asked him whether he was involved in the incident at Maylands and he said yes, that it was him. Mr Dunn noticed that the accused was upset and angry with himself. He told Mr Dunn that 'she was alive when I left'. Ms Millen told the accused that he should go to the police. The accused asked whether they could organise for him to hand himself in to Inspector Munnee, a police officer who he had known when he was younger.

154 The accused told Mr Dunn and Ms Millen that he wanted to leave his bag, which was a satchel, at their home whilst he went to visit his former wife, who lived nearby. Ms Millen told him that he could not leave it there and she emphatically told him to sit down and she would make him a coffee. He complied with her demand. He said that he wanted a beer but was told that they did not have any beer.

155 Mr Dunn recalls that the accused told him that one of the deceased had a knife, there was a struggle, he (the accused) knocked the knife out of the deceased's hand but it was again picked up. The accused said that the male victim was still alive when he left but that the deceased had been stabbed. At one stage he told Mr Dunn that 'they tried to offer me a hotshot'. He told Mr Dunn that he (the accused) had caught a bus to Mt Hawthorn and had then walked from Mt Hawthorn to Nollamara. He said that a couple of times during the journey he had heard a police siren and had 'ducked into a dumpster' to avoid the police. He also spoke to Mr Dunn about his childhood sexual assault.

156 Mr Dunn said that whilst he spoke to the accused, the accused was not making a lot of sense because he was talking about a lot of things at the one time and going off on different tangents. He was also agitated, although he was not walking around.

157 As of 25 August 2011, it had been 12 18 months since Ms Millen had last seen the accused. Ms Millen recalled that the accused told her that 'some guys' were going to kill a girl, he stepped in to stop it, somehow the knife dropped, the accused picked it up and that was as far as the conversation went. She said that the accused appeared to know what he was talking about. Ms Millen also noticed blood staining on a denim jacket that had been in the accused's satchel when he arrived at her house.

158 After Ms Millen told the accused to sit down, she went inside and called the police. A short time later, Constables Pikkert and Preston arrived at the home and, with their guns drawn, they went to the back of the house. The accused did not resist when they arrested him on suspicion of murder and handcuffed him. They cautioned the accused and provided him with his statutory rights.

159 When the accused arrived at Ms Millen's home, he was wearing zipoff cargo pants. The bottom portions of each of the trouser legs were found by the police in the accused's satchel. These were significantly bloodstained.

160 Constable Pikkert said that the accused appeared calm but his behaviour, at times, became erratic and aggressive. He had to be reminded on a number of occasions about his caution to ensure that he understood his rights. Constable Pikkert noted that the accused had a patch of blood on the left side of his face near his temple and two scratches on the back of his neck. He noticed that his clothing had blood stains on it.

161 Constable Pikkert said that whilst they waited for major crime police officers to arrive, the accused said to him 'Simon saw me run out of the house. I ran past him'. The accused told Constable Pikkert that he would talk to Inspector Munnee and tell him everything. He then said 'the guy bashes his missus, that's not cool'. He referred to his scratches and said 'see these scratches? They did these last night'. He also showed Constable Pikkert his hands and the accused said 'see this burn? They did this to me last night too. I can't even feel anything from it. It's not even painful'.

162 Constable Preston said that on an occasion when Constable Pikkert was in the front yard of the house and he (Constable Preston) was alone with the accused, the accused said:

I went to see Simon last night. He is my rock. Simon is the one that helped me get off the heroin and methadone. I went to bed last night and slept for the first time since 1 August. When I woke up, they were there. They are my trigger for the heroin addiction. They tried to force me to take heroin because they said I looked stressed and strung out. I didn't want to take heroin. I am clean. They then started to fight. I tried to break it up. I couldn't break them up so I left. They were alive when I left. If you have spoken to Simon, he will confirm that (ts 294).

163 The accused also told Constable Preston about unrelated incidents which the accused claimed had had an adverse effect on his state of mind. The officers found what they said was a bus ticket on the accused. It was purchased at Meltham station for one zone on 25 August 2011 at 7.06 am.

164 The first police officers from the major crime squad who arrived at Ms Millen's house were Detective Sergeant Bragg and Detective Senior Constable Begg. The first things the accused said to Detective Sergeant Bragg were that he wanted to speak to Inspector Munnee, he wanted his medication and he wanted his cigarettes. Detective Sergeant Bragg said that the accused spoke constantly in a rambling manner, frequently mentioning that he was a violent person. He appeared agitated but not aggressive at this time. The accused was placed in the major crime officers' vehicle and the detectives took him to the Curtin House police station in Perth. En route, the accused spoke constantly. He detailed his recent arrest, his knowledge of Mr Dunn and Ms Millen, and the fact that his mother had previously lived in the same street. He also said:

Simon was an exsolider. He is an honourable man. We did time together. He saw what happened. He will tell you the truth (ts 296).

165 The accused also told the detectives that he had attended Next Step where people had pushed 'his buttons'. He claimed to feel 'shattered and loopy'. He said that his childhood issues had returned, his dad was not his dad and that his sister wanted him in gaol. In relation to the fatal incident, he said:

Simon McCourt, I saw the start and he saw the end. I got hit and scratched; I was not going to get stabbed by some cunt. They were still standing when I left. Chris and Jenni are boyfriend, girlfriend; they are violent to each other. They were going off, I intervened, there was a dumbbell and she hit him in the head (ts 297).

Interview with Inspector Munnee: 25 August 2011

166 On arrival at Curtin House, the accused saw a police officer who had been involved in his arrest for the incident at his father's house. He immediately became highly agitated and aggressive in his demeanour. He yelled at the officer that he was a 'dog, cunt'. Once the accused arrived in the major crime squad office, he began to calm down. He was placed in an observation room.

167 As the accused had asked to speak to Inspector Munnee, the officers from the major crime squad contacted Inspector Munnee who was stationed at Police Media and Public Affairs. They asked him to attend the major crime squad office to speak to the accused. Inspector Munnee had first met the accused when he worked at the Nollamara Police Station in 1986. Inspector Munnee was instructed by the major crime squad officers to caution the accused before speaking to him, but not to conduct a formal interview with him. The conversation between the accused and Inspector Munnee was audiovisually recorded and the recording of it is in evidence. The conversation commenced at 3.17 pm.

168 When Inspector Munnee walked into the interview room the accused got up and hugged him in an overfamiliar way. Throughout much of the interview he was overfamiliar, loud and agitated. However, he was oriented in time and place and he was able to give a rational account of various matters, including what had happened at Mr SutherlandMcCourt's unit.

169 At the beginning of the conversation with Inspector Munnee, the accused was focused on finding out who had 'dropped' his name (ts 6, 7, 32, 34 35). He said on a number of occasions that he could not tell Inspector Munnee what had happened until he knew who had implicated him in the incident at the unit. He asked Inspector Munnee whether Simon had said he had killed Mr Stoodley and Ms Barrett.

170 In relation to the fatal incident, the accused told Inspector Munnee that Simon came out of his bedroom as he (the accused) was going out the front door and whilst Mr Stoodley and Ms Barrett were still fighting. He said that Simon was his witness. He said that he was walking out because he could not stop them fighting without getting hurt. He said that he got scratched and punched and hit. The accused said:

She hit him with a barbell, okay, and fuck it must've hurt, man. He deserved it, then he got (indistinct) a knife and stabbed her and I thought woah and then fuckin' everything just went up. I can't remember what happened. How many knives or what but there was more than one knife I know that much, okay. And there was stabs in the front, I think there was a couple of stabs in the back. They got a big history of being violent together, okay.

...

She's got a scar that he hit her on here. He has an old wound on his back where she stabbed him so it's, it's not uncommon for these two and they were trying to talk me into using heroin last night (ts 9).

171 The accused also spoke to Inspector Munnee about his childhood sexual abuse and the fact that the police had not taken his complaint seriously. He also told Inspector Munnee about the incident in Next Step. He said he had hugged a female patient and a male patient had insulted the woman and 'disrespected' him. He went on to tell Inspector Munnee that he had ended up wanting to hurt the man at Next Step.

172 Inspector Munnee tried to return the conversation to what had happened the previous evening at Mr SutherlandMcCourt's unit. The accused said that he first had to finish telling Inspector Munnee about what had happened at Next Step. This, together with the accused's comments that he would talk about what happened after he knew who had informed on him and what they had said, appeared to be attempts by the accused to avoid talking about the fatal incident, at least until he knew more about what the police knew about his involvement in it (ts 26 and 30).

173 The accused recalled an incident when he was a boy when he had 'almost killed' another child. He said that it was when he was 11 years old and when he got up his courage to physically retaliate against the child for bullying him. He said that he was sick of running so he grabbed the biggest guy and started wrestling with him. He got him into a headlock and squeezed. He said that all the anger from all the years of being chased and beaten had just come out. Afterwards, he cried because he felt bad because he had almost killed somebody (ts 40). This appears to be the incident which he had described to others about retaliating against a bully.

174 Later in the conversation, after describing in a bit more detail what the accused said had happened at the unit, he said to Inspector Munnee:

See, I jumped the gun see because I'm not a murderer. I didn't hurt anybody. I tried to stop it. Like I said to you my mum taught me the right way. I try and help people, right (ts 45).

175 The accused also spoke to Inspector Munnee about the incident with his father. He told Inspector Munnee that he had talked the magistrate into giving him bail and out of remanding him in custody 'by telling the truth'.

176 The accused told Inspector Munnee that Mr Stoodley and Ms Barrett had tried to influence him into using heroin the evening before (ts 51). He told them that they were disrespecting him and that he needed their friendship not their heroin. He said that he really wanted to have some Oxycodone. He said that earlier in the day he had tested Ms Barrett by asking her for some drugs. She had agreed to give him some (ts 53). He also said that Mr Stoodley had offered him drugs and that that had upset him because he needed support not weakness (ts 55). He said that he was disappointed because he thought that Mr Stoodley was one of the people that understood him. He also said that he could not stand being around Mr Stoodley and Ms Barrett because they were scratching, a symptom of opiate use. He said that he did not want them to be there and he asked Simon to ask them to leave so he could feel safe. He told them that he was going into Simon's bedroom to lie down. He said that Simon came in and hugged him and made him feel better. He said that he had a good sleep.

177 The accused said that he had woken up at about 3.30 am. He said that he went out into the living area to watch TV and 'these two dogs were there' (ts 58). He called Mr Stoodley and Ms Barrett dogs because they had tried to influence him to use drugs. The accused said he put his sunglasses on so he did not have to look at them (ts 59) and because he had a 'done' headache. The accused said that that was when Ms Barrett got angry and hit Mr Stoodley with the barbell. As they stabbed each other, he (the accused) got in between them and tried to stop them (ts 61). That was how he got blood over him. Simon then walked out of the bedroom and he (the accused) walked out the front door. He said that both of the deceased were still standing when he left (ts 62). He denied stabbing the deceased (ts 62) or having a blackout (ts 63).

178 He told Inspector Munnee that he wanted to speak to him so that he could tell him the truth. He said otherwise he would have lied and blamed Simon (ts 65).

Interviews with Detective Sergeant Scantlebury and Detective Sergeant Blaine: 25 August 2011

179 Detective Sergeant Scantlebury and Detective Sergeant Blaine then entered the room and the conversation continued. After a short while, Inspector Munnee made his excuses and left. By the time Inspector Munnee left, the accused had settled down and he remained settled for most of the remainder of the interview.

180 The State does not rely on what the accused said to the police as admissions. The records of interview were tendered as being relevant only to the accused's state of mind.

181 The accused was told that Mr SutherlandMcCourt had given a different and conflicting version of events in the unit. The accused concluded that Mr SutherlandMcCourt had 'dogged' him. He said:

I'm not a dog right, but a dog does a dog does a dog.

...

So he's got a big bad issue with benzos. He's fuckin' schizo. He just found out two days ago his mum was fuckin' diagnosed with tongue cancer, okay. He's stressin' out to the max. He wants Chris out of the house, he wants Jenni out of the house. This is only an assumption.

...

I reckon he finished 'em off. Seeing me full of blood, trying to stop them.

...

See, he saw me walk out the door, Cam. He opened the door as I opened the door. He looked at them two, I looked at him, he looked at me. I'm out of here, man. I've got blood all over me. I looked guilty (ts 73).

182 The accused told Detective Sergeant Scantlebury that:

(1) 'the other night' he had some cannabis because it helped him to relax and calm down (ts 74);

(2) Mr SutherlandMcCourt had been stressed out over the week and stressed because Ms Barrett was at his home;

(4) Mr Stoodley had been standing over Mr SutherlandMcCourt for his methadone (ts 75, ts 78) and that he (the accused) thought that he would stop that by stopping Mr SutherlandMcCourt's takeaway doses of methadone (ts 79);

(5) after Ms Phillips told him that there was nothing she could do about Mr Stoodley taking Mr SutherlandMcCourt's methadone, he (the accused) had approached Next Step; and

(6) he believed that as a result, Mr SutherlandMcCourt's takeaway doses had stopped (ts 80).

183 At about 4.30 pm, there was a six minute break in the interview. At that point the accused appeared quite calm.

184 At 4.36 pm, the interview restarted. The accused was able to give a detailed account of his movements during the afternoon of 24 August 2011, which to a substantial extent is consistent with other evidence. The accused said that:

(1) when Mr SutherlandMcCourt arrived home that afternoon, he (the accused) told him that he had to get rid of Mr Stoodley and Ms Barrett (ts 6);

(2) Mr SutherlandMcCourt said that he could not get rid of Mr Stoodley because he was paying him rent but that he would get rid of Ms Barrett (ts 6, ts 9);

(3) Mr SutherlandMcCourt agreed that he (the accused) could stay at his unit;

(4) Mr SutherlandMcCourt, and later he (the accused), went upstairs to see Mr Burns. It was there that Mr SutherlandMcCourt agreed that he would tell Ms Barrett that she had to leave (ts 9);

(5) he (the accused) went back down to Mr SutherlandMcCourt's unit. He had a 'done headache', he was tired, he wanted to lie down and he wanted to relax;

(6) he (the accused) went into Mr SutherlandMcCourt's bedroom and lay on Mr SutherlandMcCourt's bed;

(7) sometime later, Mr SutherlandMcCourt came into the bedroom, lay on the bed and gave him a hug (ts 10);

(8) shortly after that, he (the accused) went to sleep and thought that Mr Stoodley and Ms Barrett had left Mr SutherlandMcCourt's unit;

(9) when he woke around 2.30 am 3.30 am and went out into the living area, Mr Stoodley and Ms Barrett were still in the living area on the mattress where they sleep, watching something on the television screen (ts 11). Mr SutherlandMcCourt was asleep on his bed;

(10) he (the accused) felt 'really, really good' and then he felt 'really, really bad'. Mr Stoodley offered him some drugs;

(11) Ms Barrett became angry with Mr Stoodley for doing that and she hit Mr Stoodley on the head with a dumbbell (ts 12);

(12) Mr Stoodley and Ms Barrett 'were arguing for hours' (ts 13);

(13) he (the accused) thought that Mr Stoodley had picked up a knife from the wooden knife holder on the kitchen table and a fight occurred between Mr Stoodley and Ms Barrett, with he (the accused) in between them (ts 17);

(14) from the point where Mr Stoodley picked up the knife, he was 'hazy' because that was the part where he had got frightened (ts 17);

(15) Ms Barrett grabbed the knife and stabbed Mr Stoodley;

(16) '... they were stabbing, stabbing, stabbing, stabbing, stabbing, stabbing, stabbing you know, in the back, in the, in the front, you know, everywhere. So that's when I get in between them cos I thought they were just little ones' (ts 18);

(17) he (the accused) felt responsible because he should have stayed there, punched Mr Stoodley, taken the knives off them and punched Ms Barrett (ts 18);

(18) during the fight Mr Stoodley was standing between a sideboard and a couch on one side of the living area and Ms Barrett had been standing on the other side of the living area/kitchen near Mr SutherlandMcCourt's bedroom door;

(19) he (the accused) felt that his life was threatened during the fight and he had tried to grab the knife off Mr Stoodley. The knife dropped, Mr Stoodley picked it up and Mr Stoodley and Ms Barrett started fighting again. He (the accused) pushed Mr Stoodley out of the way and Ms Barrett hit Mr SutherlandMcCourt's bedroom door (ts 19 20);

(20) Mr SutherlandMcCourt must have been woken up by the noise;

(21) he had forgotten to tell Inspector Munnee that Mr SutherlandMcCourt walked out of his bedroom as he (the accused) walked out the front door and he said to Mr SutherlandMcCourt 'fuck this, deal with it' (ts 20);

(22) he (the accused) thought that Mr Stoodley and Ms Barrett were 'just doing little punches';

(23) Mr Stoodley and Ms Barrett were stabbing each other;

(24) when it was put to him that he had not previously said that they each had a knife, he (the accused) said that he had said that to Inspector Munnee and he further responded 'how could they both be stabbing each other if there's not two knives?' (ts 20 21);

(25) Mr Stoodley stabbed Ms Barrett in the abdomen on multiple occasions and he had no idea whether he had stabbed her anywhere else. He (the accused) was worried about her safety (ts 25 26). Ms Barrett picked up a knife from the same knife block and stabbed Mr Stoodley in the stomach area. He (the accused) did not know how many times (ts 27);

(26) he (the accused) had a flashback to a time his brother tried to kill him (ts 31);

(27) he (the accused) jumped the fence at the back of the units, walked down Tenth Avenue and Railway Parade, caught a train from Meltham station to the East Perth train station and, when he was unable to contact his daughter, walked to Ms Millen's home in Nollamara (ts 35 39);

(28) on the way he realised how much blood he had on him and so, after a police car drove past him, he took off his jacket and the zipoff portion of his trousers and put them in his satchel (ts 35 36);

(29) he made a deliberate choice not to go to Maylands station 'because it was too close' and he needed time. He spoke to some people at the Meltham station 'just to get' his 'head going' (ts 37);

(30) he went to Ms Millen's home because he knew that Mr Dunn was a policeman and he wanted advice (ts 38);

(31) he was planning to go to the Ellenbrook police station the next day to ask whether they were looking for him but he was glad that Ms Millen had contacted the police. He knew that the police were coming, but he did not try to run (ts 40);

(32) he wanted his tablets to calm him down because he felt that he was 'getting raged' and wanted to burn his hand to stop the rage (ts 41);

(33) if Mr Stoodley and Ms Barrett had done something wrong to him, he would have killed them and he would have admitted it (ts 42); and

(34) when the tape was turned off he would tell the police something.

185 At 4.17 pm, there was a break in the interview for approximately 20 minutes. Either during this break or the next, Detective Sergeant Blaine spoke to the accused about mundane matters and noted that he was more relaxed and able to engage normally than he was during the formal interview.

186 When the interview resumed the accused told the police that he would tell them what he thought had happened. He said that if someone had 'dogged' him, then he was 'doggin' them' (ts 44). The police by that time had told him what Mr SutherlandMcCourt had told the police and it is clear that the accused was speaking about Mr SutherlandMcCourt having implicated him in killing Mr Stoodley and Ms Barrett.

187 The police asked him about an incident where he had punched Mr Stoodley a few days earlier. The accused told the police that Mr Stoodley told him that he would only be away for a short period of time whilst he went to get some drugs. When Mr Stoodley was away for a lot longer because he was buying heroin, the accused thought that he had lied to him and so he had punched him in the mouth (ts 46). He also told the police that he did not believe that Mr Stoodley had any involvement in the police finding out about the incident at his father's home (ts 48). However, he did not like Ms Barrett because she influenced Mr Stoodley into using heroin and she stole money from him (ts 50 51).

188 The accused repeated the version of events which he had given earlier. He then said that Mr SutherlandMcCourt was lying when he said that when he got up he (the accused) and Mr Stoodley were having a fight which did not involve Ms Barrett. He said that Mr Stoodley and Ms Barrett were standing when he left the unit (ts 60). The accused said that it was Mr SutherlandMcCourt who had 'an issue' with Mr Stoodley and Ms Barrett and that 'if anything happened [Mr SutherlandMcCourt] finished it' (ts 63). When he was told that Mr SutherlandMcCourt had said that the accused had stabbed Ms Barrett in the back, the accused said that if Mr SutherlandMcCourt said that is what happened, it was Mr SutherlandMcCourt who stabbed Ms Barrett (ts 64).

189 The police asked the accused whether he had taken any pills the previous evening and he told them that he had taken two diazepam and two clonidine. He went on to say that in the last three weeks he had had 400 diazepam and about five cartons of beer (ts 53).

190 The police asked the accused about the incident with Ms Kress. He acknowledged that it had occurred, although he thought it had happened at the beginning of that week, that is, after he was released from the police watch house. He acknowledged that he had done it because he wanted to test the accuracy of what he had been told about Ms Kress having sex with Mr Stoodley and also because he wanted to have sex. He said that when he found out that Mr Stoodley had been lying about having sex with Ms Kress, he decided to get back at Mr Stoodley, Mr SutherlandMcCourt and others by pretending to have sex with Ms Kress (ts 79 82). When he was questioned about what he did and the threats he had made to Mr Doyle, the accused said that he was drunk and that he should not have drunk scotch whiskey because of the effect it had on him. He described himself as 'pissed, really pissed' (ts 88). The police put to the accused that he had suggested to Mr Doyle that he should kill Mr Stoodley and had offered to go to gaol for him if he did. The police said to the accused that could he see that that painted a picture for the police. Without the police having to spell it out, the accused said 'I can see the picture, yeah' but said that they were reading too much into it (ts 91). This indicates that the accused not only had a fair memory of events, but his ability to reason was not substantially impaired at that time.

191 On a number of occasions during the interview the accused told the police that he needed his tablets. His request for tablets coincided with the times in the interview when he did not want to answer difficult questions as opposed to times when he seemed emotionally labile or aroused. In my assessment, this was an attempt by the accused to buy time when he felt under pressure from the police's questioning.

192 The police put to the accused that it would have to be 'miraculous' to stand between two people having a knife fight and not end up getting injured. The accused said that he thought that it was lucky and that his 'lower power helped' him. He described his lower power as his belief that mother earth is God. He justified this belief on the basis that two nuclear bombs only killed 230,000 people whereas the 2004 tsunami killed 2,000,000 people. Thus, he said he believed that mother earth is in control and that Satan took the evil from the earth. He only said these things on one occasion during the course of the interviews (ts 99).

193 Towards the end of this portion of the interview, the police put to the accused various aspects of the fatal incident and asked him to explain them. The accused was able to give apparently rational explanations consistent with his innocence. At about 6.55 pm, there was a break in the interview and the accused had a cigarette. When the interview resumed, the accused said that if he had not had a break then he wanted to punch the interviewing police officers. He said that he was going to burn himself whilst he had the cigarette but had not done so. When the interview resumed, the police continued to put quite a bit of pressure on the accused in an apparent attempt to make him admit that he was lying. Despite this pressure, the accused maintained that he was innocent and that Mr SutherlandMcCourt had lied to the police. His account at this point was consistent and rational, even if he now acknowledges that it was also false. Eventually the police could not make any headway in persuading the accused to change his account and they brought the interview to an end. In doing so, the police asked the accused whether he had been happy to speak to them. He said that he had been happy but was not any more. In explanation he said:

Cos I'm going to get very angry and I don't want to get angry.

...

See, I know my limitations. You push me to the point where I'm going to shut my mouth, otherwise I'm going to go off.

...

Okay? I'm smart. Not stupid. I'm not going to hurt somebody (ts 24).

Interview with Detective Sergeant Scantlebury and Detective Senior Constable Gannaway

195 At 9.29 pm, another interview between the police and the accused commenced. The accused had requested that Detective Sergeant Blaine not participate in it. The accused asked whether the previous interviews could be 'dismissed'. He was told that they could not be. He also said that he had hoped that Inspector Munnee was going to help him and that he now needed to tell the truth. Through tears, the accused told the police that he and Mr SutherlandMcCourt had planned to stage a home invasion at Mr SutherlandMcCourt's unit. He said it was planned that they would knock out Mr Stoodley and Ms Barrett and give them minor stab wounds. He said that in pursuance of that plan, he had scratched himself before Mr Stoodley and Ms Barrett came home on 24 August 2011 to make it look like Mr Stoodley and Ms Barrett had attacked him.

196 The accused said that he went up to Mr Burns' unit to get some alcohol to give him courage to carry out the plan and that Mr SutherlandMcCourt bought wine and beer back to the unit. When he and Mr SutherlandMcCourt returned to the unit, he (the accused) hit Mr Stoodley with the barbell. That woke up Ms Barrett. Mr SutherlandMcCourt threw her against the wall and then stabbed her.

197 The accused then changed his story and said that Mr SutherlandMcCourt had stabbed Ms Barrett whilst she was in bed. He corrected himself in that respect and said that he understood that the forensic investigations would show what had happened and that was why he was now telling the truth. The accused then said that he had stabbed Mr Stoodley twice and then tried to stop Mr SutherlandMcCourt. He said that he believed that he had stabbed Mr Stoodley twice in the back, on the lefthand side and near no vital organs. The accused said that by this time, Ms Barrett was in Mr SutherlandMcCourt's bedroom lying on her back. He said that he saw Mr SutherlandMcCourt stab her in the heart and that there were 'multiple, multiple stab marks'. The accused then said that Mr SutherlandMcCourt attacked Mr Stoodley and that 'he went mental on him'. The accused said he intervened between Mr Stoodley and Mr SutherlandMcCourt and that was when he got blood over him. The accused said that he walked out of the unit. He acknowledged that he had not walked to Nollamara, but rather he had caught buses. He also said that before he had left the unit, Mr SutherlandMcCourt had changed his clothes. He also said that they had used two knives from the knife block for the attack.

198 The accused said that he did not kill Mr Stoodley and that he had seen Mr SutherlandMcCourt stab both of the deceased in the heart to make sure they were dead (ts 13). When speaking about where Mr SutherlandMcCourt had stabbed Ms Barrett, the accused said that Mr SutherlandMcCourt had stabbed her on the lefthand side of the shoulder blade on her back. Ms Barrett had stab wounds in this general area. He also said that he believed that Mr Stoodley had fallen on to the white chair in the unit and then had fallen to the ground. This is consistent with Mr Stoodley's blood on the leading edge of the white chair (see my summary of Sergeant Blaver's evidence). He said that Mr SutherlandMcCourt had pulled his hair and pulled him on to the ground and then stabbed Mr Stoodley in the back. He said he also rolled him over and stabbed him in the front. The police asked the accused how hard he had hit Mr Stoodley and the accused demonstrated by picking up his can of drink and banging it on the table in the interview room. He was then asked how hard he had stabbed Mr Stoodley and he replied that he could not really remember because of his 'anger management'. However, when the interviewing police officer put to him that he had used about the same amount of force, the accused said:

No, no, no, no, not that hard, no. I didn't want to kill him.

...

I wanted to knock him out and then a couple of stabs, teach him a lesson, ha, ha, ha, for rippin' me off, for rippin' him off, for telling me that he was gonna go - he, he told me the truth about the fact. That's what I was trying to hint to you guys in there.

...

You know what I mean. I didn't

...

wanna dob my, my, my socalled rock. I couldn't believe. I wanna see his statement. Please can you show me his statement so I'm not dogging him in for nothing? (ts 17)

199 Thus, even at this late stage in the interview process, the accused was trying to obtain a copy of Mr SutherlandMcCourt's statement.

200 When that portion of the interview came to an end and the interviewing officers asked the accused the standard concluding questions, the accused said that he had lied before to the police. He apologised for doing so and said that it was because his 'boob head was on'. He said that that was because he had not been given any medication. He said that if he had been given his medication he probably would have told them the truth. He also indicated that he had changed his story because he had thought about what doing 30 years in prison for a double murder was going to do to his daughter.

201 By the time the interview concluded, at 10.10 pm, the accused was quite calm although he, at times, cried during the last stage of the interview.

Events in custody: 26 August 2011 6 September 2012

202 The accused was not given any of his prescribed medication or any other drugs between his arrest and transfer to the police watch house on the evening of 25 August 2011. There is no contemporaneous record of the drugs he received that evening but the prison records contain a 'health screen' which was completed on the afternoon of 26 August. It states that the accused had taken olanzapine and diazepam the previous evening and DMVF that day.

203 On 26 August 2011, the accused was transferred to Hakea Prison. The prison medical notes record that the accused repeated that he 'will go off if he does not get his meds or get what he wants'. He said he had recently started on DMVF and olanzapine, which he said he must have for 'anger issues'. A nurse noted that he was 'quite jovial about his crime'. That evening he was given olanzapine. The following day he was commenced on a medication regime of 200 mg of DMVF in the morning, 10 mg of diazepam and 5 to 10 mg of olanzapine at night. The entry for 27 August 2011 records that only 100 mg of DMVF was given. The diazepam was first given in the morning and then on 30 August 2011 it was changed to an evening dose. From 31 August 2011, he was given 150 mg of DMVF and 10 mg of olanzapine each day.

204 On 27 August 2011, the accused had a consultation with a mental health nurse at Hakea Prison. Under the heading of 'Mental State Examination', the nurse noted:

• Elevated
• Agitated
• Unable to sit still
• Garrulous and loud. Disorganised. Repeatedly stating that he is innocent of the charges.
• Describes his mood as 'great'!!! Reactive affect. Incongruent with the severity of the charges and current situation.
• No perceptual disturbances.
• Disorientated to time but orientated to place and person.
• Main concern is the continuation of medication. (Exhibit 3, page 55).

205 The following day, 28 August 2011, the accused had another consultation with the same mental health nurse. Her assessment was that the accused appeared to be settling in well to prison routine, he had been observed earlier playing basketball in the yard, he was interactive with other prisoners and occasionally intrusive with staff.

206 Under the heading of 'Mental State Examination', the nurse noted that the accused engaged well with good eye contact, but had poor memory recall. His concentration was improving and he said he had started to read a book. He was very talkative. He was also tangential and flipped from one topic to another. He had an elevated mood and still did not appreciate the seriousness of the charges (exhibit 30, page 54).

207 On 29 August 2011, at 3.30 pm, the accused was seen by Dr Hames, a medical practitioner who works in the prison. Under the heading of 'Impression', the doctor reported:

Although bizarre in presentation and some strange over valued ideas does not present with any form of mental illness

Does not appear to have full grasp of the gravity of his situation at present

Hypomanic presentation is likely an acute stress reaction (exhibit 30, page 52).

208 Later on the same day, the accused had a further consultation with a nurse. The nurse also noted that on observation the accused was hypomanic, but interacting appropriately with others. He had a jovial presentation. Initially during the conversation the accused was fixated on paedophiles. He still denied responsibility for the deaths of Mr Stoodley and Ms Barrett. Under the heading of 'Mental State Examination', the nurse recorded:

Calm and cooperative with assessment and labile mood although congruent with topics discussed.

Jovial at times during assessment and tearful when discussing family issues.

Intense eye contact at times, appropriate behaviour, good rapport established.

Speech is loud and rapid at times, tangential and occasionally difficult to follow his reasoning.

Euthymic mood with reactive affect.

Denies any perceptual disturbances and there is no evidence of same, no FTD (formal thought disorder) evident.

Some bizarre and strange ideas but not beyond rational thought processes, does not appear to be delusional, more antisocial in nature.

Oriented TPP (time, place, person), cognition and judgment appear intact (exhibit 30, page 51).

209 On the same date, the accused was visited in prison by Ms Moore. She said that he was yelling and not making any sense. The accused told Ms Moore that Mr SutherlandMcCourt had 'lost it' and that he (Mr SutherlandMcCourt) was whispering in his ear to tell him to do it. He also told her that Mr SutherlandMcCourt did not want him to get any better. Ms Moore said she spoke to him daily by telephone in the week or so after his arrest. She said that he was the same as he was during the first visit. She did not see him again until after Christmas 2011. She said at that time he was calmer and was his old self again.

210 On 30 August 2011, the accused had a consultation with a different health worker. His presentation was similar to that observed by the previous health worker. The health worker queried whether:

1. Mood elevation due to the use of [DMVF]?
2. Benzo withdrawal?
3. In the absence of a longstanding hypomanic diagnosis consideration to stress reaction.
4. Ongoing risk to the general population of the prison and to adjust to this environment given his current presentation.
5. Identify if there is a mood disorder (exhibit 30, page 50).

211 This was the first time anybody had queried whether the accused's elevated mood was due to the use of DMVF. However, I notice that this was not a diagnosis and the mental health worker queried other causes of his presentation. On the same date it is recorded that the accused assaulted another prisoner because the accused thought that the other prisoner was a 'tamp'. The accused used this term often to describe child sex abusers.

212 On 1 September 2011, the accused had a consultation with Dr Salvatore Febbo, a wellknown forensic psychiatrist. Dr Febbo recorded that he detected no abnormality in the accused's mental state and that there was no evidence during his interview with the accused to suggest pathological elevation of mood. He assessed that the accused's mental state was relatively stable but he thought that it would be appropriate for the accused's dose of diazepam to be reduced more gradually. The accused reported to Dr Febbo that up until his remand in custody he was taking 40 mg of diazepam per day, whereas his in custody dose was 10 mg per day (Exhibit 30, page 49).

Interview with police about childhood sexual abuse: 6 September 2011

213 On 6 September 2011, at his request, the accused was interviewed by the police in respect of his complaint of childhood sexual abuse. The accused was able to give a rational account to the police about his childhood sexual abuse although, consistent with his presentation around that time, he was what the doctors have described as tangential and had a tendency to move from topic to topic. He was talkative and spoke freely about his feelings and emotions.

214 In relation to how he had been feeling, he said to the police:

[S]ince I've been out of the CDU I've had this rage come out, something snapped in my head and everything's come out all at once. See, I've had this black thing in me and I've been to counsellors and Cyrenian House rehab and the CDU detox centre, and I've had counsellors and I'm trying to - I've got this fucking black thing that's inside of me and it's fear (ts 5).

215 The accused also spoke freely to the police about violence which he had inflicted on others, such as when he retaliated against the bullies when he was growing up (ts 18). The accused described this to the police as the first time 'the rage ever came out'. He described how he had squeezed another male's neck and throat. He said that two school teachers had to come and pick him up as he was not going to let go. The accused told the police that he strangled this male and an ambulance had to be called for him. He also gave an example of another male who he had 'smashed' and fought with (ts 64). He also told the police that since he had been in custody, he had assaulted a prisoner and had tried to hit a prison officer (ts 66). He described this as 'the rage' being out (ts 66).

216 The accused also described to the police his assault on another patient at Next Step (ts 66). He said:

I just wanted to rip this guy apart and I have not been able to let that anger go unless I hurt myself (ts 66).

Events in custody: 6 September 2011 - 28 December 2012

217 On 15 September 2011, the accused was interviewed about his addictions. He told the interviewing nurse that he used about $150 per day of cannabis, six long neck bottles of beer per day and about 700 benzodiazepines a fortnight. In respect of his use of benzodiazepines, the nurse noted that in prison he had been refusing his reducing regime of diazepam. The accused described that he had been feeling 'fucked' mentally since not taking any substances and that the substances had 'protected him' from certain feelings/emotions. He had stated that the olanzapine was not totally effective and he would like the dose increased.

218 On 23 September 2011, the accused had a counselling session. The accused presented as 'bright and reactive'. He said that his head felt like a 'whirlwind'. He expressed violent ideation towards the perpetrator of his childhood sexual abuse. He said that he found dealing with the powerful emotions from his childhood sexual abuse was very intense and difficult to cope with. He stated that he had suppressed his emotions for so long with drugs, that he had no coping strategies to now deal with the emotions he was experiencing.

219 The following day the accused requested to have his olanzapine dose increased as his anger had been getting out of control. He said he did not want to get into trouble as a result.

220 On 13 October 2011, the accused cried and asked a nurse for a change in his medication. He said that the olanzapine was not helping. He said he had anger problems and when somebody pushed his buttons, he would react and wanted to tear the person apart. He claimed that that was why he was in prison.

221 Later the same day, the accused saw a nurse for counselling about drug abuse. As he had on the previous consultation that day, he complained that he was not sleeping well. He said that the stress of his current circumstances and withdrawal from methadone were contributing to his sleep disturbance. He said that he felt that he was 'ready to snap' and he thought that if that happened, then someone would 'get hurt'. He reported that he had no intention of deliberately hurting someone but stated that he 'blacks out'.

222 The nurse suggested to Dr Febbo that the accused be described mirtazapine (brand name Avanza), another antidepressant. Dr Febbo declined to prescribe that drug. When the accused was advised of Dr Febbo's decision he stated that he was not happy with Dr Febbo, that he felt like 'slapping him' and did not wish to see him again.

223 On 17 October 2011, Dr Hames saw the accused and noted that he was so entrenched in his ways of thinking that he would always face likely deterioration in coping if he does not have external opiates in him.

224 Whilst in custody, the accused was prescribed and took clonidine, DMVF and diazepam. On 1 September 2011, Dr Febbo completed a medication change/cessation advice which instructed the pharmacy at the prison to reduce the olanzapine and to commence a diazepam reduction regime. The pharmacy signing sheets and administration records indicate that diazepam was given to the accused up until 11 September 2011 and on 12 September 2011 the accused refused his dose. There is no record in evidence indicating that he was given diazepam after 11 September 2011 (exhibit 30, page 131, and 46). Also on 1 September 2011, Dr Febbo requested a reduction in the prescription of olanzapine to 10 mg from the then prescription of 20 mg in the evening. The reduction in olanzapine by Dr Febbo tends to indicate that he did not think that the accused was psychotic and thus needed the same dose of olanzapine.

225 In relation to the cessation of diazepam, I note that when Dr Febbo saw the accused on 1 September 2011 he recorded that the accused attributed his sleep disturbance to diazepam withdrawal. Dr Febbo reported that it would be appropriate for the diazepam to be reduced more gradually. The fact that the accused refused diazepam after 11 September 2011, contrary to Dr Febbo's advice and in light of the evidence that I have heard about the symptoms of diazepam withdrawal, leads me to conclude that some of the accused's symptoms at that time could be attributed to diazepam withdrawal.

226 In September 2011 and until 18 October 2011, the accused was prescribed and took 150 mg of DMVF each day. On 17 October 2011, the accused reported to Dr Hames that he had taken illicit suboxone on a few occasions in the recent past. There are entries in the notes on 20 and 27 October 2011 indicating that he was continuing to do so. Suboxone is a combination of opioid and naltrexone, which only works when taken orally. If the accused used it intravenously, it would not work. On 17 October 2011, Dr Hames decided to restart the accused on methadone. The accused had his first dose on a date between 3 and 9 November 2011 (exhibit 30, page 32).

227 On 21 October 2011, the accused saw Dr Maligaspe Jayawardana, a psychiatrist. There are entries in the notes to indicate that the accused had recently assaulted another prisoner. The accused told Dr Jayawardana that he felt really good and that he had had a good night's sleep the previous night for the first time in two months. He said that on Sunday morning he had 'snapped'. I infer that this was a reference to him assaulting the other prisoner and, if so, it would mean that the assault occurred the previous Sunday, 16 October 2011. Dr Jayawardana noted that the accused spoke loudly, was not agitated and had no definite excitement. The accused told Dr Jayawardana that DMVF was no longer working and that he had a problem with anger. Under the heading of 'Mental State Examination', Dr Jayawardana noted that the accused had good rapport, his speech was loud but not under pressure, he had no flight of ideas, no obvious depression, no delusions, was somewhat grandiose but had no grandiose delusions, no hallucinations and he had a clear state of mental clarity. Dr Jayawardana noted:

No definite evidence of a 'manic switch' with the antidepressant seen today. Has a strong conviction that his GP's medications should be continued and not messed about (exhibit 30, page 35).

228 I am not clear as to what the first quoted sentence means.

229 Dr Jayawardana noted that the accused wished to try mirtazapine. Dr Jayawardana told the accused that DMVF and mirtazapine were not a good combination and that the DMVF had to be tapered off if he was keen to commence mirtazapine. The accused agreed to this. Dr Jayawardana prescribed mirtazapine, 30 mg each night. He also reduced the accused's DMVF prescription to 100 mg in the morning. He ordered that the accused continue to take 15 mg of olanzapine each night. The accused's olanzapine prescription had been increased on 4 October 2011 at his own request due to his increasing anger. From the signing sheets and administration records, it appears that this regime was instituted from the evening of 21 October 2011.

230 On 27 October 2011, a mental health nurse saw the accused and noted that he presented as slightly elevated and became emotional very easily. He said he was using suboxone because it controlled 'the beast'. She reported that the accused became quite agitated when discussing his feelings about paedophiles and the justice system. She noted that it was 'very difficult to have a rational conversation' with the accused about this topic.

231 The same mental health nurse saw the accused on 3 November 2011 and she noted that he continued to present as elevated, loud and verbose, though less so than in her consultation on 27 October 2011. The accused reported to her that he needed to commence the methadone because of his anger. He was still maintaining that he had not killed the deceased.

232 Sometime between 3 and 11 November 2011, the accused recommenced taking methadone at 20 mg per day. This was increased to 40 mg per day until it was tapered off and ceased around 2 February 2012.

233 On 11 November 2011, the accused had a consultation with a different mental health nurse. She noted that he was more settled since recommencing on methadone. The accused reported to her that his sleep had improved since he had started taking olanzapine and mirtazapine.

234 On 11 November 2011, the accused had another consultation with Dr Jayawardana. He increased the accused's dose of mirtazapine and reduced his prescription of DMVF. The olanzapine was continued. The accused also reported to Dr Jayawardana that he felt better on methadone. Dr Jayawardana noted that the accused spoke loudly, was in good spirits, but not in excitement. Under the heading of 'Mental State Examination', Dr Jayawardana noted that the accused had good rapport, no obvious formal thought disorder, his speech was loud, there was no pressure of speech or flight of ideas, his mood appeared happy with no delusions, but he talked with passion about how paedophiles are protected by 'the system', he had no hallucinations and his state of mental clarity was clear. Thus, whilst it can be inferred from Dr Jayawardana's notes that there was some settling in the accused's mental state between his two examinations and since the accused had commenced on methadone, my overall impression is that there was not much difference between the accused's presentations on these two occasions.

235 On 14 November 2011, the accused presented as somewhat agitated to a practitioner who was counselling about drug abuse. This practitioner had seen the accused on a number of occasions since he had been in custody. The practitioner assessed the accused as being somewhat agitated and he expressed some potentially paranoid ideation about being victimised by the custodial staff. Despite this, the accused continually stated 'I'm not paranoid'.

236 The accused was seen weekly by this practitioner for drug abuse counselling. On 24 November 2011, he presented as 'a little flat'. Whereas on 1 December 2011, the practitioner noted that he presented as a little agitated and elevated initially. She said that the agitations settled, but the accused remained somewhat elevated throughout the review. He was upset at the behaviour of some other prisoners but had decided not to retaliate. He told the practitioner that he would only physically react to anything if someone called him a 'dog' or a 'tamp'.

237 On 9 December 2011, the accused was seen again by Dr Jayawardana. Dr Jayawardana noted that the accused had his usual presentation. He was loud and in good spirits. The accused told Dr Jayawardana that he felt better with the combination of mirtazapine and DMVF. Under the heading of 'Mental State Examination', Dr Jayawardana noted good rapport, with no formal thought disorder, his mood appeared happy although he said that 'it is dark', there were no overt delusions, no hallucinations and the accused's state of mental clarity was clear. Dr Jayawardana decided to continue with the combination of mirtazapine and DMVF.

238 In a counselling session on 15 December 2011, the accused said that his medications 'dulled' his emotions and he wanted his emotions for court. This was one reason why he was considering changing his medications, although the main reason was that since he had recommenced on methadone and started taking mirtazapine, he had had swollen feet and hands.

239 On 22 December 2011, the accused again saw the practitioner for counselling about drug abuse. She noted on that occasion that the accused presented looking a little unkempt, very tired, and with moderate agitation. The accused also complained about night terrors which he had spoken of with other practitioners during the time that he was in custody.

240 Again, on 29 December 2011 when the accused saw the practitioner for counselling about drug abuse, it was noted that the accused was a lot happier, although somewhat elevated with rapid speech.

241 On 3 January 2012, the accused saw Dr Hames and it was decided to stop the accused's dose of mirtazapine because of the side effects of pins and needles and swelling. The accused was then on 40 mg of methadone per day and he was keen to reduce this dose at 2.5 mg every four days. Dr Hames endorsed this plan. On the basis of the signing sheets and administration records in evidence, the accused commenced taking fluvoxamine, an antidepressant, at 50 mg per day on 7 January 2012. This appears to have replaced the mirtazapine. The accused was still taking 50 mg of DMVF each morning and 15 mg of olanzapine daily.

242 On 31 January 2012, the accused was taking 22.5 mg of methadone per day. The plan was to immediately reduce this to 15 mg, to further reduce it to 10 mg on 1 February 2012, to further reduce it to 5 mg on 2 February 2012 and then to cease methadone. The accused would then be started on withdrawal medications. This plan was followed. The withdrawal medication was 5 mg of diazepam three times a day for three days and clonidine three times a day.

243 On 10 February 2012, the accused had a consultation with a mental health worker who he had previously seen in custody. The accused claimed not to have slept for three nights and to be feeling angry and irritable.

244 The following notation appears under the heading of 'Assessment':

Some signs of agitation present regarding withdrawal from methadone. Wants his meds review for nocte issues. ... Unclear as the ongoing working diagnosis as he has presented previously with as hypomanic like symptoms but possible drug misuse in the past but with possible delusional thinking. He clearly has a severe antisocial personality disorder in the context drug use and serious offending behaviours. Since being in prison there has been actual psychotic process of note recorded. During this particular interview he was attempting to befriend me and manipulate me for his own outcome. His risk management particularly interesting as he has no remorse in thoughts of harming others for his own ends. Often uses the term 'if I don't get them I will hurt someone'. In light of his current mood state and recommend review of meds by psych (exhibit 30, page 20).

245 On 13 February 2012, the accused was seen by Dr Mark Hall, a forensic psychiatrist. The accused gave a history to Dr Hall which was consistent with what he had said in the past, except that he also reported to Dr Hall that he had used violence in prison because he knew that if he did so he would get to see a doctor. He also told Dr Hall that he just wanted to sleep and believed that the fluvoxamine was most helpful in that regard as it reduced his feelings of anxiety and panic in the evening.

246 Dr Hall noted that the accused was restless and fidgety. He had superficial and shallow affect. There was no formal thought disorder. The accused expressed attitudes condoning violence and some sadistic elements were expressed openly. He was not psychotic or depressed. He had limited insight into his psychological and behavioural functioning. Dr Hall assessed the accused as having ASPD and questioned whether there was some contribution from mild brain dysfunction in the ADHD spectrum. He noted that he had longstanding substance abuse dependency, with associated absence of mature or prosocial coping mechanisms. Dr Hall thought that the accused's anxiety and agitation was likely to be a manifestation of mixed factors relating to substance abuse issues and abuse experiences. Dr Hall's plan was to increase the accused's prescription of fluvoxamine to 100 mg each night.

247 The accused had been prescribed a further three days of diazepam from the evening of 10 February 2012 through to the morning of 13 February 2012, in order to assist and cope with his withdrawal from methadone. The clonidine was continued, but not at the dose of three times per day, until 24 February 2012.

248 On 12 March 2012, the accused saw Dr Hall again. He told Dr Hall that he was not 'travelling well'. The accused told Dr Hall that he was having nightmares and was waking in panic. He denied suicidal ideation or psychotic thoughts. Dr Hall noted a shallow affect with an exaggerated display of distress. Dr Hall thought that there was a drug seeking element to the consultation. Dr Hall thought that the accused's complaint of diarrhoea might be related to a combination of DMVF and fluvoxamine, so he decided to cease the DMVF and to increase the dose of fluvoxamine to 200 mg at night. He did not change the accused's dose of olanzapine. The accused had no DMVF after 12 March 2012.

249 On 20 March 2012, the accused saw the usual nurse for counselling about drug use. She noted that the accused looked tired and was somewhat unkempt. The accused told her that he wanted to get back on to methadone as he felt stable with opiates inside him. He was assessed as not coping well with his current circumstances. He was still not sleeping well. Interestingly, he spoke about his then partner as his 'rock', which was the same way he had spoken about Mr SutherlandMcCourt around the time he killed Mr Stoodley and Ms Barrett. He told the nurse that he had been using suboxone 'as much as I can' and that this was three to four times a week. He had last used two days ago.

250 On 27 March 2012, Dr Hames decided that as the accused had been using suboxone, he needed to restart methadone. Dr Hames noticed that he looked tired and haggard. The application to prescribe methadone which Dr Hames completed on 27 March 2012 said that the plan was to commence the accused on a 20 mg dose on 31 March 2012. However, there is no record I can find to say exactly when he recommenced methadone. The application also stated that the accused was using suboxone and that the duration of his use was two months. If this was correct, it would indicate that he had been using suboxone since ceasing methadone.

251 On 16 April 2012, the usual practitioner saw the accused for counselling about drug abuse. He told her that he was feeling much more stable since being back on methadone. He was no longer experiencing nightmares and had not been thinking about matters such as the outcome of this prosecution or the perpetrator of the childhood sexual abuse.

252 On 24 April 2012, Dr Hames planned to increase the accused's methadone by 10 mg per week from the current dose of 40 mg.

253 On 30 April 2012, the accused again presented for counselling about drug abuse. The usual practitioner noted that the accused was quite unkempt in appearance and that he stated that he was very stressed. He told her that about four weeks earlier he had finally admitted to himself that he was involved in the deaths of Mr Stoodley and Ms Barrett and that he was the one who killed them. He stated that he was not a killer. He complained of racing thoughts and also experiencing panic attacks. He told the practitioner that he wanted a break from his head and his thoughts. He acknowledged having used cannabis four weeks before the consultation, but denied using any other illicit drugs.

254 On 7 May 2012, the accused had a further drug abuse consultation with the usual practitioner. The practitioner noted that the accused appeared much more settled, although he was still struggling to accept what he had done. He stated to the practitioner that he was a passive person who cherished life. He presented as quite remorseful. He said that he was still experiencing anxiety attacks but that they were not as bad and he was managing them. This presentation is quite noticeably different from his earlier behaviour. It is consistent with his presentation before he detoxified from methadone in early August 2011.

255 The accused saw Dr Hall on 21 May 2012. He told Dr Hall that he was feeling considerably better since recommencing on methadone and increasing his dose of fluvoxamine. He was then sleeping and eating well. He denied a depressed mood and stated that he was starting to come to terms with his situation.

256 After this date, the medical record from Hakea Prison indicates that the accused was a lot more settled. There are some entries, 1 June 2012, 27 July 2012 and 24 August 2012, which record that the accused was agitated or tired or stressed. However, generally speaking, his mood was stable from then on. The prison health records available to me conclude on 28 December 2012.

257 Dr White performed postmortem examinations on both of the deceased. Mr Stoodley died from sharp force penetrating injuries to the chest. He had the following sharp force injuries:

(1) an almost Lshaped cut or incised wound to the left upper cheek which measured 10 mm in length, with a gap over 4 mm, then a further superficial 2 mm cut;

(2) a 65 mm long cut or slash, to the skin and soft tissue, which involved the mid and upper right jaw line. It gaped quite widely. The wound extended into the soft tissues and muscles of the chin and lower right cheek area up to a depth of about 3 cm (injury 1);

(3) a 12 mm long penetrating injury to the upper mid right chest wall in the midclavicular line above the right breast. The direction of the wound appeared to be inwards and towards the breast bone and it had a depth of 2 cm. The ends of the wound were slightly irregular which suggested that there was some movement of the weapon or victim when the injury was caused (injury 2);

(4) a 29 mm long penetrating injury to the left chest which was situated 4 cm from the breast bone in between the breast bone and the left nipple. The injury path went through the tissues of the chest wall, through the third and fourth ribs, through the lower edge of the upper lobe of the left lung, through the pericardial sac and the heart, through the oesophagus and ended within the soft tissues which surround the spine. Associated with this injury was 300 ml of blood in the left chest cavity. It was not possible to measure the exact depth of the wound but it was at least about 10 12 cm (injury 3);

(5) a 24 mm long penetrating injury on the lower right hand side of the abdomen approximately level with the navel. The wound went through the tissues of the right abdominal wall, through the intercostal musculature of the eighth and ninth ribs, into the abdominal cavity, through the small bowel mesentery, through the head of the pancreas and cut the end of the gall bladder. The depth of the wound was somewhere between 12 15 cm (injury 4);

(6) a 25 mm long penetrating injury to the side of the body above the right hip. The injury path remained in the soft tissue of the trunk. The track of the wound could be followed for about 6 7 cm and it appeared to end just above the back of the right pelvis (injury 5);

(7) a 30 mm long penetrating injury overlying the middle aspect of the right groin. The injury entered the right pelvic cavity, near the large bowel, but did not damage any major organs. It was about 6 7 cm deep (injury 6);

(8) four penetrating injuries underneath the right arm on the upper right chest wall. Two of the injuries were in a straight vertical line, one underneath the other and the other two were closer to horizontal. They were each 27 32 mm long when the edges were drawn together. Two of the wounds entered the chest cavity and in doing so fractured ribs and passed into the lung. Each wound path travelled in a different direction. The two injuries which did not enter the chest cavity were about 7 cm and 5 6 cm deep, respectively. Significant force is required to fracture a bone whereas a moderate force is required to inflict a stab wound which only involves soft tissues of the body (injuries 7 10);

(9) a 35 mm long penetrating injury to the back of the right shoulder. The wound path extended down the outer border of the right shoulder blade towards the armpit and could be tracked to a depth of about 7 cm. It then appeared to exit the body at the point of another wound on the lower aspect of the right shoulder blade. The exit wound measured 29 mm in length (injuries 15 and 16);

(10) a 24 mm long penetrating injury over the lower lateral aspect of the right back. It entered the right chest cavity between the eighth and ninth ribs and penetrated the right lung. The direction of the wound was towards the middle of the body (injury 17);

(11) a 44 mm long penetrating injury to the upper left back. Its path was inwards and towards the midline (injury 18);

(12) a 32 mm long penetrating injury to the right upper back adjacent to the spine. The wound path extended into the tissues of the back, inwards and towards the midline of the body (injury 19);

(13) an 8 mm long penetrating injury just left of the middle aspect of the thoracic spine. It had a notch which indicated the possibility of some movement by either the knife or Mr Stoodley at the time of penetration (injury 20);

(14) two approximately 32 mm long incised wounds or cuts to the back mid aspect of the right upper arm. They were cut or slash type injuries, separated by a distance of 2 cm and oriented in the same direction. They cut the skin and divided the subcutaneous fat (injuries 11 and 12);

(15) a penetrating injury to the top of the left arm which travelled through the arm and exited on the inner aspect of the upper arm (injuries 13 and 14); and

(16) four incised wounds or cuts to the left hand. Three were on the palm and inner aspect of the second finger and one was on the inner nail bed of the third finger. These could have been sustained by Mr Stoodley as he tried to ward off the accused's attack.

258 Injuries 3, 8, 10 and 17 were significant contributors to Mr Stoodley's death. Injury 4 would not have been fatal if the deceased had received treatment in respect of it and he had not received other serious injuries. Mr Stoodley may only have survived for only two to three minutes after the infliction of the serious injuries but in a rare case someone may survive for up to 20 minutes from these types of injuries.

259 Mr Stoodley also had the following blunt force injuries to his body:

(1) a bell shaped tear or laceration to his left temporal scalp;

(2) two disruptions to the skin on the nose, one at the tip and one at the base of the right nostril;

(4) a yellowishdried abrasion above the outer aspect of the lateral left eyebrow, which Dr White thought had been caused after death;

(5) a 2 mm red mark to the skin at the base of the left thumb;

(6) a tanpurple bruise on the mid inner aspect of the left upper arm which was 15 mm; and

(7) four separate areas of bruising to the right knee and a faint greenish area of discolouration of the upper inner left thigh.

260 Ms Barrett also died from sharp force penetrating injuries to her chest. She had the following sharp force injuries:

(1) a 42 mm long penetrating injury to the left midupper chest wall above her breast and just left of her breast bone. Its path was inwards and downwards. There were notches on both the upper and lower edges of the outer corner of the injury but the edges of it were neat. The wound did not enter the chest cavity, it went across the soft tissues behind the breast and along the front of the rib cage. It extended for a depth of 10 13 cm (injury 1);

(2) a 28 mm long penetrating injury to the lower left chest wall just below the left nipple. The wound path was downwards and inwards. It penetrated the left chest cavity between the fifth and sixth ribs, the small bowel mesentery and the spleen. It could have been anywhere between 10 15 cm deep (injury 2);

(3) a 16 mm long penetrating injury above the left hip. The inner corner of the injury was blunted or squared in appearance as if the weapon which caused it had only one sharp edge (injury 3);

(4) a 62 mm long incised wound or cut/slash to the inner right forearm which went around, rather than up, the arm (injury 4). There was an area of bruising at the outer edge of the wound and the injury was at its deepest at the inner aspect of the arm. There were a couple of associated minor cuts at the far outer and inner edges that were a continuation of the cut or slash;

(5) a 14 mm long incised cut/slash type wound to the midanterior left forearm (injury 5);

(6) an intermittent superficial slash or incised wound to the mid aspect of the left palm, the continuation of which is at the base of the left thumb between the thumb and forefinger on the left hand (injury 6);

(7) a number of sharp force injuries to the hands including one on the right ring finger and three associated incised wounds on the first, second and third fingers of the left hand which were consistent with being defensive injuries;

(8) a 29 mm long penetrating injury to the upper left back above the upper border of the scapula near the neck. It extended into the tissues underneath the skin and ran downwards and towards the midline but did not enter the chest cavity (injury 7);

(9) a 33 mm long penetrating injury on the lower aspect of the left scapula. It had a squared off edge to its lower aspect. It travelled downwards and towards the midline through the soft tissues at the back of the chest, through the left chest cavity between the fourth and fifth ribs, through the lung, through the aorta, through the carina, injured the right bronchus and penetrated the back of the pericardial sac. There was associated blood and blood clot around the heart, in the heart sac and in the left chest cavity (injury 8);

(10) a 29 mm long penetrating injury to the left mid back, close to the spine. It travelled inwards and downwards and entered the chest cavity between the ninth and tenth ribs. It travelled through the left lung, into the pericardial sac, through the left and right sides of the heart and finished just near the valve in the right ventricle (injury 9);

(11) a 28 mm long penetrating injury in the left mid back just below injury 9. This injury was also notched at one end. It entered the left chest cavity between the ninth and tenth ribs, injured the left lung and passed through the middle of the diaphragm (injury 10); and

(12) a 29 mm long penetrating injury to the outer right back at about the same level as injury 10 but on the right hand side of the back. It went inwards and downwards. It entered the right chest cavity at the back between the tenth and eleventh ribs, injured the lower lobe of the lower right lung, passed through the dome of the right diaphragm, scored the liver and transected the right adrenal gland (injury 11).

261 Injuries 8 and 9, both of which damaged Ms Barrett's heart, were fatal injuries. They were also approximately 10 14 cm deep. Injury 11 was potentially fatal if left untreated.

262 Ms Barrett also had some blunt force injuries, which included a tear with irregular margins within her left eyebrow, associated bruising over an area of 20 30 mm, bruising over the side of her left mid cheek and a mark on her mid left jaw line. The injury to the area of the left eyebrow was caused by something striking the face or by Ms Barrett's face striking an object. There were also blunt force injuries on Ms Barrett's arms. On the right arm she had purple bruising to the upper anterior aspect of the upper arm, to the midposterior upper arm, over the midanterior right forearm and to the back of the right wrist. There was also a small disruption to the cuticle of the right thumb. On the left arm she had bruising to her midinner forearm and disruptions to the outer aspect of the cuticle of the left thumb. On her right leg Ms Barrett had bruising to the right of her hip and a number of bruises around and on her knee cap.

263 Ms Barrett also had a puncture mark and bruise on her inner right elbow, which was consistent with recent needle use.

264 The police took photographs of Mr SutherlandMcCourt's unit on their arrival and throughout their investigation. Mr SutherlandMcCourt's unit consists of three rooms. The largest room is a combined living area and kitchen which is approximately 3 m wide and 7 m long. The front door is a metre from the left hand edge of one of the narrow sides of the room. It enters into the living area which is about 3.5 m long. The remaining length of the room is the kitchen. There is no wall between the living area and the kitchen but the two areas are delineated by a change in floor covering material. On the righthand side of the living area about half a metre from the kitchen, there is a door which opens into Mr SutherlandMcCourt's bedroom, the majority of which is adjacent to the kitchen. The bedroom is approximately 2.5 m wide and 4.75 m long. At the end of the bedroom closest to the front door there is a door which opens into the bathroom. The bathroom occupies the remaining portion of the rectangular unit.

265 As I have stated, Mr Stoodley and Ms Barrett slept on a makeshift bed on the living area floor. It was situated about 1.5 m from the front door. On the left hand side of the bed between the bed and the wall of the living area was a sideboard. Moving further into the living area, between the kitchen and the mattress was a small, black couch and before the fatal incident occurred there was a white armchair to the right of it. Both of these items faced into the living area. Immediately behind the black couch was a board which acted as a divider between the living area and kitchen. The fridge abutted the board.

266 When the police arrived Mr Stoodley was lying between the mattress and the corner of the bedroom door which is closest to the kitchen. His head was toward the bedroom. There was a small table between his head and the wall of the bedroom. He was lying mainly on his left side with his right leg on the lower portion of the makeshift bed. Close to him was a doona, which was spread across the living area floor at the end of the makeshift bed.

267 Ms Barrett was lying mainly inside the bedroom but her lower legs and feet protruded into the living area. Her head was close to the leading edge of the bedroom door, which was open.

268 The unit appears to have been untidy to start with but there also appears to have been furniture which was moved about in the course of the fatal incident. There were a number of cushions on the floor of the living area, which were not where I would expect them to be, as well as the doona I have mentioned. The white chair had been moved from its original position and was sitting askew in the middle of the kitchen floor. There was a dumbbell on the living area floor near some cushions and a black handled kitchen knife near to it and Mr Stoodley. There was a roll of paper towel close to Ms Barrett and some paper towel appeared to have been pulled off it and apparently used to try and staunch some blood flow from Mr Stoodley.

269 The knife has a blade approximately 20 cm long. It tapers from a width of approximately 30 mm wide near the handle to a narrow tip. The blade narrows quite slowly, so that 10 cm from the tip it is still 25 mm wide. I have only seen photographs of the knife. It definitely has one sharp cutting edge. Apart from the portion of the opposing edge which is closest to the tip, it does not appear as if the other side of the knife is sharpened. The knife has what appears to be blood stains on it. One of the stains contained Mr Stoodley's DNA. Dr White was not asked whether the knife could have caused all the sharp force injuries on the deceased. It seems to me that, apart from the penetrating injuries that are longer than the maximum width of the knife (eg injury 18) and those that had a notched end (eg Ms Barrett injury 3), the sharp force injuries were all consistent with having been caused by the knife. I can not make any further findings in relation to the identity of the weapon or weapons.

270 The police photographs show a box of the accused's clonidine tablets which were dispensed on 24 August 2011 on the bookshelf in the living area. There are other medication blister packs and packaging in the photographs but no evidence as to what these were or to whom they belonged. There was also what appears to be an empty bottle of vodka on the floor of the living area near the dumbbell and a near empty bottle of whiskey on the sideboard. On the kitchen floor there was at least one long neck bottle of beer and there could have been more. There was a tipped over knife block on the kitchen floor and at least one other knife close to it. However, it is not suggested that this knife was used in the incident.

271 There was a saturated blood stain, that is, where a volume of blood has soaked into a surface, at the foot of the makeshift bed and the blood which made the stain came from Mr Stoodley. However, the stain was not consistent with it having been caused by Mr Stoodley lying in the position he was found by police. There were also Mr Stoodley's blood stains on other areas of the living area floor between the mattress and the kitchen which were also not consistent with the location of Mr Stoodley's body. These were saturated blood stains and indicated that Mr Stoodley could have been in that area for a period of time.

272 There were projected blood stains, they are, blood stains caused when force is applied to liquid blood which then travels through the air and strikes a receiving surface, on the wall above the sideboard and on items on the sideboard. These blood stains contained Ms Barrett's blood. There were also projected blood stains in two locations on the sideboard, quite low down near the floor. These blood stains were in Mr Stoodley's blood. None of these blood stains were consistent with Ms Barrett's or Mr Stoodley's location at the time they were found by police. The location of those blood stains indicate that Ms Barrett and Mr Stoodley were relatively close to the sideboard at the time that their blood was distributed in those areas, or alternatively there was a source of their liquid blood that was close to the sideboard.

273 There were also passive blood drops of Mr Stoodley's blood and blood stains caused by Ms Barrett's blood which were underneath Mr Stoodley's body when the police arrived and which could not have been caused by Mr Stoodley lying in that position. There were also blood stains on the kitchen floor. None of these stains were consistent with the final location of either Mr Stoodley or Ms Barrett.

274 On the surface of the divider facing the living area there were two projected blood stains. One was a cast off blood stain, which was on the divider just above the height of the black couch. Sergeant Blaver also observed arterial blood stains on the divider which were to the right of the black couch as you would look at it from the living area and about the seat level or just below the seat level of the black couch. There were also passive, projected and transfer blood stains on the black couch. Between the right hand edge of the back of the black couch and the far right edge of the divider there was an area of cast off blood staining in Mr Stoodley's blood. The blood drops had travelled from the right hand edge of the divider downwards and towards the left, if you looked at the divider from the living area. A cast off pattern is produced from blood that is released from a blood bearing object that is in motion.

275 In order for blood to create a stain with that directionality, the object that contained and then released the blood would have to have been moving from right to left. Sergeant Blaver could not determine the exact object that created that blood stain.

276 Below that blood stain, there was an arterial blood stain in Ms Barrett's blood. It had the same directionality as the cast off stain above it.

277 The backrest of the white chair had a cast off blood stain on it. The size of the individual blood drops and the distribution between each of them was consistent with the cast off pattern on the divider. When the white chair was repositioned adjacent to the divider, it was apparent that the cast off stain on the backrest of the white chair and the divider were consistent with having been made at the same time.

278 There was also a large blood stain of Ms Barrett's blood on the lower back and seat of the white chair, which indicated that Ms Barrett had contact with the back of the chair for a period of time whilst she was bleeding. Potentially, some arterial blood stains have contacted the chair and some have gone between the black couch and the white chair and struck the divider. That would be consistent with Ms Barrett, whilst injured, sitting or lying on the chair when it was in its original position adjacent to the black lounge chair. The deposition of the arterial stains on the divider could also have occurred after the chair had been moved.

279 There were also small amounts of Mr Stoodley's and Ms Barrett's blood on the front of the fridge and on the black couch.

280 There was a pool of Ms Barrett's blood on the kitchen floor close to the border between the kitchen and the living area. Somebody had stepped in that pool of blood and caused further blood staining.

281 There was a swipe blood stain, that is, a stain from a blood stained object having contacted a nonblood stained surface and there having been lateral movement associated with it, in Ms Barrett's blood, on the kitchen wall. This was situated above a table which was against the kitchen wall which divided the kitchen and the bedroom.

282 There were altered blood stains, which appeared to have been diluted, on three small areas of the kitchen sink and on the cold water tap. It could not be determined whose blood was contained within those stains.

283 There was also a saturated blood stain, which can only have come from contact with Ms Barrett's bleeding body, on an item of clothing that was on top of a kitchen chair close to the kitchen table.

284 There was a further saturated blood stain containing the blood of Mr Stoodley on the leading edge of the seat of the white chair. That stain indicates that Mr Stoodley was, at some stage, leaning against that part of the chair with a bleeding injury.

285 Sergeant Blaver concluded that Mr Stoodley had been in at least three areas of the unit at different times throughout the incident. One was at the foot of the makeshift bed, one was on the carpet near the front corner of the black couch and another was on the living area floor where his body was found by the police. At some point whilst bleeding, he had leant against the white chair. Given that there was not much of Mr Stoodley's blood in the kitchen, it seems likely that this was when the white chair was in its original position beside the black couch and facing the living area.

286 Sergeant Blaver determined that Ms Barrett had been bleeding in the area where the living area carpet met the kitchen lino. She had leant against the kitchen chair and the item of clothing that was on top of it, and she had been in the white chair for a period of time. The projected stains on the sideboard and the wall behind it indicated that a source of her blood had been near the sideboard. However, Sergeant Blaver could not say that she was in that area.

287 There was also a large amount of blood around the body of Ms Barrett, all of which came from her. However, there were two small blood stains on the bedroom floor mat and the bed sheet where the probable contributor was Mr Stoodley.

288 The police photographed the accused on his arrest. He had transfer blood stains on the back right side of his head and below his left ear. He also had transfer blood stains on his right forearm and his left calf. Mr Stoodley was the probable contributor to those stains.

289 Sergeant Blaver identified 53 separate blood stains on the accused's clothes and shoes which were seized from him on his arrest. In particular, there were saturation blood stains, containing the blood of Mr Stoodley, on the back waistband of the accused's trousers, the area on the left hand side of the accused's trousers between the top of the back pocket and the bottom of the waistband and the back of the accused's underpants. This indicated that both areas had had contact with the source of Mr Stoodley's liquid blood and the blood had then saturated into the fabric of the shorts and the underpants. This could only have occurred by the accused having contact with Mr Stoodley's bleeding body in that area or by the accused coming into contact with a source of liquid blood, for example the areas of saturation on the carpet. It is not apparent to me how those blood stains were caused.

290 The accused's blood was found in blood spots which constituted a drip trail that led from the stairwell of Mr SutherlandMcCourt's block of units and across the car park. I do not know where that blood came from but it seems that the accused must have deposited it as he left the block of units.

291 Sergeant Blaver found blood staining not only on the items of clothing which the accused was wearing when he was arrested, but also on the items of clothing that were in his satchel when he arrived at Ms Millen's home. These items included the bottoms of his trousers and his denim jacket.

292 In crossexamination, Sergeant Blaver said that he believed that the blood staining on the sink had been deposited on the surface of the sink after it had been diluted; rather than it having been diluted with, for example, water, after it had been deposited on the sink. He said that the only other way that the stains could have given the appearance they did was if the three areas where the stains were deposited were wet when the blood was deposited on them.

293 The bloodstaining in the unit is consistent with the accused repeatedly stabbing Mr Stoodley when he was in that portion of the living area between the foot of the makeshift bed closest to the kitchen, the black couch and the original position of the white chair. It is also consistent with the accused repeatedly stabbing Ms Barrett in the area where the living area becomes the kitchen and in the doorway of the bedroom. It is also consistent with her having been in the white chair and leaning against the kitchen chair whilst she was bleeding.

294 Methadone, temazepam and mirtazapine metabolites were detected in a sample of Mr Stoodley's blood. He also had measurable quantities of diazepam, desmethyldiazepam, methadone, morphine and tetrahydrocannabinol in his blood sample. Ms Barrett had similar drugs in her blood sample. Given the presence of alcohol bottles in the unit, it is interesting to note that neither of the deceased had alcohol in their blood.

295 The accused's blood sample, which was taken at 2.00 pm on 25 August 2011, returned the following results:

296 Professor Joyce is a wellqualified and experienced medical practitioner who specialises in clinical pharmacology and toxicology. He regularly gives evidence in this court as an expert in these areas of medicine. Neither his experience or qualifications were challenged by the accused. I accept his evidence.

297 In respect of the presence of DMVF in the accused's blood, Professor Joyce gave evidence that regardless of whether a patient has taken venlafaxine (brand name Effexor) or DMVF, it is DMVF which is detected in their body. In effect, DMVF is a metabolite of venlafaxine and they are essentially identical in their clinical effects and toxicology.

298 DMVF prevents the cells of the brain from taking up the noradrenaline and serotonin so that they are available to have their normal effects of maintaining mood.

299 The concentration of DMVF found in the accused's blood sample is below the level that the laboratory in which Professor Joyce works recommends for treatment. The laboratory recommends levels of .25 mg per litre or above as a therapeutic concentration. Professor Joyce said that most patients who take 200 to 250 mg per day of DMVF would very likely have a concentration exceeding .09 mg per litre, 30 hours after their last dose. Professor Joyce would have expected that if the accused was taking 200 to 250 mg per day as he reported, even after a delay of 30 hours from his last dose, he would have been expected to have a concentration close to around .20 to .30 mg per litre.

300 However, given that the accused did not have any DMVF whilst he was in police custody, between 20 and 22 August 2011, after having been arrested over the incident at his father's house, Professor Joyce's view was that his level of DMVF at 2.00 pm on 25 August 2011 was broadly consistent with him having three missed doses around that time. However, he said that he would not trust the result to the point of making a clinical decision on the basis of it.

301 Most people tolerate DMVF and do not get any ill effects from it. Some people feel edgy and a little bit shaky. Occasionally, people complain of skin flushing and an accelerated heart rate, but those side effects are not common.

302 According to Professor Joyce, hypomania and mania have been reported in the clinical trials and the postmarketing surveillance as potential side effects of DMVF. The Australian Authorised Drug Information gives an incidence of 0.1%. The United States Food and Drug Administration's latest prescribing information for DMVF for February 2013 gives an incidence of 0.02%. On these bases, the incidence of hypomania or mania with the prescription of DMVF is somewhere between 1 in 1,000 and 1 in 5,000 patients. Professor Joyce has not seen any references to DMVF resulting in an incidence of violent hypomania or mania, but he has not scoured the literature to find such a reference (ts 1,059). Professor Joyce said that he had never seen a warning that DMVF could cause homicidal tendencies.

303 The Australian prescribing information for DMVF contains a list of precautions with DMVF use, which are potential problems that should be monitored. Three of the precautions for DMVF are potentially relevant. First, there is the possibility of clinical worsening of the depression which is being treated, secondly, there is the potential for suicidality and thirdly, there is the possibility of mania/hypomania in patients with a family or personal history of bipolar disorder. However, there is no history of bipolar disorder in the accused or his family and neither of the psychiatrists who gave evidence believe that the accused has bipolar disorder.

304 I asked Professor Joyce whether the incidence of hypomania or mania with DMVF use was higher than the incidence of hypomania or mania in the general population or higher than the incidence of hypomania and mania in people with depression. Professor Joyce responded:

Yes. I guess the question put in other terms is, if a depressed patient is given Venlafaxine and becomes hypomanic, how confident can we be that it's the drug that has done it rather than an actual history of the illness? And I don't know how you make that distinction. The incidence with the drug is not so high that you could be sure on probabilities ground, on any individual case, that it has truly been the drug and not simply the natural history of the - of the illness. The - there are some things to observe in individual cases that might lean one in one direction or another there. They don't actually come from the formal enumeration of cases. Because if one simply looked at the formal enumeration of cases, and said that one in a thousand people goes from depression to hypomania with Venlafaxine, one might observe that the incidents (sic) of going through depression to hypomania and bipolar disorder is probably greater than that anyway. So just on that, one would not be inclined to say that the drug had any potential to do it. The experience of psychiatrists, which hasn't been organised to the point where it has actually been quantitated, or been put into literature is, that all of the antidepressants will do this to some degree. So they will accelerate the improvement in mood in depressed patients and a proportion of those will overshoot, if they've got a background - a background bipolar disorder.

So the clinical belief which is probably correct, even though it's not actually quantitatively set down, is that any antidepressant can provoke hypomania in a patient who is open to it, because they've got bipolar disorder or they're known to have bipolar disorder in their family. I don't have any doubt that that would suggest that it's more likely with desmethylvenlafaxine than with the other antidepressants (ts 1,035 1,036).

305 Professor Joyce gave evidence about the nature of other antidepressants. In summary, he said that:

(1) Amitriptyline is an older antidepressant of the tricyclic family and he had cases in which seriously depressed patients had become hypomanic after treatment with amitriptyline.

(2) Dothiepin (brand name Prothiaden) is another tricyclic and is a close relative of amitriptyline. It is not a SNRI.

(3) Fluvoxamine (brand names Luvox and Movox) is either called a serotonin reuptake inhibitor (SRI) or a SSRI. It works on the serotonin uptake pathway and not the noradrenaline pathway.

(4) Sertraline (brand name Zoloft), which the accused took in 2004, is a SRI and is similar to fluvoxamine.

(5) Escitalopram (brand name Lexapro), which the accused told Dr Connor on 24 November 2009 that he had been on for six months with good effect, is also a SRI and similar to fluvoxamine.

(6) Mirtazapine, which the accused commenced taking in October 2011, is a very recent antidepressant and it is neither a SRI, SSRI, SNRI or a tricyclic.

306 There is a reference in a medical record relating to the accused which states that the accused in 2001 was given two doses of 50 mg of dothiepin on consecutive nights. It is recorded that he said it made him 'aggro' and the dosage was stopped. Dr Tanney relies upon this as showing that the accused is adversely sensitive to SNRI medication. Professor Joyce gave the opinion that in trials of antidepressant drugs, even patients who are given a placebo will commonly report symptoms of feeling agitated and angry. He said that the symptom appearing in the first 48 hours of treatment with an antidepressant is very unlikely to be linked to action on the depression process or on the mood.

307 Professor Joyce said that it is not reasonable to require a previous episode of hypomania or mania with an antidepressant in order to decide that an incidence of hypomania or mania has been brought on by a particular antidepressant. That is because those conditions are an uncommon to rare phenomenon with any of the antidepressants. He said that the best predictor for a hypomanic response to any antidepressant is a history of bipolar disorder. So that, a present or absent bipolar history is the thing which would be most useful in gaining confidence that a hypomanic or manic response was genuinely (or not) brought on by an antidepressant drug.

308 Professor Joyce was also asked to comment on the level of diazepam in the accused's blood. He said that patients who were taking around 20 to 25 mg of diazepam per day will have levels in the range found in the accused's blood and it is in the high therapeutic range as most patients would be taking 2 to 5 mg per day. If the accused did not have any diazepam on 25 August 2011 prior to his blood sample being taken at 2.00 pm that day, the level of diazepam in his blood would be consistent with a dose of 25 to 30 mg per day rather than 20 to 25 mg per day (ts 1,059). He said that given the diazepam reading, the accused had not taken 10 to 15, 5 mg diazepam tablets on 24 August 2011.

309 Professor Joyce said that diazepam persisted for a long time in the body but that the amount in a patient's blood would track the amount that they were taking. He said that in a patient who had been taking it for a long time, about half of the body load is removed every 48 hours.

310 Although the other benzodiazepines, desmethyldiazepam, oxazepam (brand name Serepax) and temazepam, found in the accused's blood, are available as individual prescription drugs, the amounts in his blood are adequately explained by his ingestion of diazepam. That is, their levels are consistent with having been metabolised from the accused's use of diazepam.

311 Professor Joyce was asked about the accused's account of having taken handfuls of alprazolam (brand name Xanax) and oxazepam at some time after 8 August 2011. The upshot of Professor Joyce's evidence is that even in someone with the accused's tolerance for diazepam, that amount of those drugs would make a person seriously sedated and prone to falling off to sleep.

312 Professor Joyce said that the accused's account that on one occasion after he had discharged himself from Next Step he took 400 diazepam and up to 110 on one night, was not credible. Professor Joyce said that 110, 5 mg tablets would cause deep unconsciousness and have a good chance of causing death. Similarly, his account that he had taken 700 benzodiazepines in a fortnight was not credible (ts 1,044).

313 Professor Joyce was also asked about the paradoxical effect of benzodiazepines. From that I infer that he was asked whether the use of large amounts of benzodiazepines could have the opposite effect of what was intended, that is of making someone very alert as opposed to sedated. Professor Joyce's view was that that is a very rare occurrence which usually only occurs the first time a patient is given benzodiazepines or when they are given intravenous benzodiazepines (ts 1,042).

314 Professor Joyce was asked about the withdrawal symptoms from benzodiazepines and he said that the shorter acting benzodiazepines, such as temazepam and oxazepam, have an earlier and more intense withdrawal than the longer acting ones, but the withdrawal symptoms for the longer acting diazepams last for the same amount of time. The early side effects of withdrawal from benzodiazepines are the opposite of sedation. Patients feel hyperalert, achy, have a fine tremor in their hands and often look fidgety because of the sense of anxiety and agitation that reemerges in them when the drug is withdrawn. Patients who withdraw severely will also have disturbances of blood pressure and pulse. They may become delirious and confused and in the worst case can die of cardiovascular and seizure consequences of withdrawal. Their mood is low because they are feeling so bad. Professor Joyce said that patients who are withdrawing from any of the sedative drugs such as benzodiazepines, opiates or alcohol are agitated and irritable from the experience so they may well act angrily (ts 1,043).

315 Diazepam withdrawal symptoms would be experienced if a patient reduced their dose of diazepam from eight, 5 mg tablets per day to four, 5 mg tablets per day. Professor Joyce said that after roughly two days the patient would be aware of the drop and that their sense of calmness had disappeared and that they were feeling a bit agitated. He said that you would not see any of the more obvious clinical signs of the dose reduction. If a patient went from four or five diazepam a day down to zero, the patient would notice the withdrawal symptoms within 48 hours and the clinical signs of it would be apparent within another 24 48 hours (ts 1,059).

316 Professor Joyce gave evidence that, given that alcohol was not detected in the accused's blood sample, he may have had a blood alcohol content anywhere between 0% and .11% at 6.30 am on the morning of 25 August 2011. As is commonly known, Professor Joyce said that alcohol in that sort of dose is energising, improves confidence and improves a person's optimism in the outcome of what they do. In people who are a bit predisposed to violence, the associated loosening of inhibitions often allows violence to emerge. The disinhibiting effect of alcohol allows extremes of all emotions. So that it allows people to become suicidally depressed or abnormally jocular or excessively violent or promiscuous. However, he said that if alcohol is taken with benzodiazepine, the propensity for alcohol to excite a person is less obvious.

317 The 0% blood alcohol reading was not consistent with the accused having had six to seven 750 ml bottles of beer between 11.30 pm on 24 August 2011 and 6.30 am on 25 August 2011. He said that he could have had a 0% reading at 2.00 pm on 25 August 2011 if he had commenced drinking that amount of alcohol at around 5.00 pm on the afternoon of 24 August 2011.

318 Professor Joyce said that the tetrahydrocannabinol reading in the accused's blood indicated that the accused had used cannabis sometime in the previous 24 hours but the reading did not give any more specific information. He said that cannabis use is not typically associated with violence or aggression but it is associated with a state of sedation and elevated mood.

319 Methadone is a synthetic opioid that is used by people who are addicted to an opiate and who, as a consequence of their addiction, have a physical need for an opioid. The methadone supplies that need so that they are no longer affected by the cravings that drive them to obtain an illicit opioid, like heroin. An addict's need for opioid can slowly resolve so that they are able to withdraw from the methadone and not need supplemental opioid, but a lot of people never get to this point and remain on methadone throughout their lives.

320 Methadone is sedating. People who are dependent on methadone will 'feel fairly wretched' if they do not take the methadone. They can 'anticipate changes in mood as a result of the withdrawal symptoms' (ts 1,049).

321 Professor Joyce said that none of the drugs in the accused's toxicology report above have the capacity to create delusional beliefs or hallucinations except in rare adverse effects, which could not reasonably be invoked in this case (ts 1,049). Neither do any of them have the capacity to produce automatism. Professor Joyce said that severe intoxification with any one of them could render a person unable to understand their circumstances and to that degree would render them unable to carry out any planned action (ts 1,050).

322 Professor Joyce confirmed other evidence that Olanzapine is a drug that was originally designed as an antipsychotic drug, but it is useful to treat mood disorders and agitation. It has a sedating effect which can commence 20 30 minutes after administration. Its mood stabilisation and antipsychotic effect can take longer to commence (ts 1,050).

323 If DMVF had caused hypomania or mania in the accused, withdrawing the DMVF and treating the hypomania or mania with another drug would then resolve the condition. If olanzapine was used to stabilise the accused's mood, the response to olanzapine would not distinguish a spontaneously appearing hypomania or mania from a drug induced condition (ts 1,053).

324 Professor Joyce is unaware whether, if someone had an adverse reaction of hypomania or mania to DMVF, the reaction would continue until the drug was withdrawn. He said the normal clinical response to the emergence of genuine and diagnosed hypomania would be to withdraw anything which might be inciting it. He said his lack of experience in seeing such an adverse reaction where the antidepressant had continued meant that he did not know whether the hypomania or mania would continue until the drug was withdrawn or whether, even if the drug was continued, the underlying disorder would simply cycle back into depression (ts 1,059 1,060).

325 Professor Joyce was asked if the accused was agitated and aroused and he had taken the sedating drugs that were found in his blood analysis, whether his presentation would indicate that there was an underlying pathology that he was exhibiting. Professor Joyce responded that a person who was tolerant to benzodiazepine drugs may still look agitated if they were put into a situation which was very frightening to them, so it did not necessarily mean that there was an underlying psychopathology explaining the way they presented (ts 1,057).

326 In September 1991, Dr J Alan Wood, a psychiatrist, prepared a psychiatric report for the purpose of sentencing the accused. He diagnosed the accused with opiate dependency, dyslexia and antisocial personality.

327 In November 1999, Dr John Pougher completed a psychiatric report for sentencing the accused. He stated that the accused told him:

He has often been depressed, frequently associated with anger, for as long as he can remember. He is currently on amitriptyline tablets (an antidepressant) which, he said, keeps his anger under control and does help his mood state (exhibit 30, page 580).

When he lives outside prison, he does have a fluctuant mood state, when some feelings of depression and anger make themselves felt, depending on his circumstances of living. He also has some phobic symptoms. These symptoms may be aided by antidepressant medication (exhibit 30, page 581).

329 Dr Pougher said that the accused's main problem was a severe and permanent addiction to heroin.

330 Ms Denise M Cull, a forensic psychologist, completed a psychological report for sentencing the accused in November 1999.

331 Ms Cull noted that the accumulated effect of his traumatising experiences appeared to have resulted in the accused having 'become a well defended and angry young man' (exhibit 30, p 576). Ms Cull said that if he did not engage effectively in longterm therapy to address his issues, he would 'remain a highly defended individual whose capacity to remain offence free will likely be limited' (exhibit 30, p 577). She said that he appeared to have a genuine desire to resolve his longterm difficulties. Ms Cull said that the accused's use of illicit substances was likely to have served to negate the emotional distress he felt from his past.

332 Dr Tanney, who gave evidence for the accused, and Dr Brett, who gave evidence for the State, are both highly qualified and experienced forensic psychiatrists. As their qualifications and experience are not in dispute, I do not need to detail them.

333 Dr Tanney was asked to give an opinion in relation to the fatal incident and the mental state of the accused. For this purpose, he interviewed the accused once on 16 July 2012. He also took into account the statement of material facts, the prosecution witness statements, the Next Step records, the accused's custody records and the transcripts of the records of interview between the accused and the police.

334 Dr Tanney's opinion is that when the accused stabbed each of the deceased, he knew what he was doing and understood that it was wrong, but he lacked the capacity to control his actions at those times. That is because the accused was suffering a hypomanic or manic disorder caused by an idiosyncratic adverse drug reaction to DMVF, in conjunction with decompensated PTSD. By the end of crossexamination, Dr Tanney had added substance abuse, possible alcohol intoxication and underlying ASPD as being contributing factors to the accused's incapacity (ts 853). By lack of capacity, Dr Tanney means that the accused had an ability to control his actions, as we all do, but at the relevant times, he lacked the ability to exercise that capacity because his mood and his thinking were disturbed. In consequence, since a person's actions are based on their thoughts and their feelings, the accused was unable to control his actions.

335 Dr Tanney said that although the accused was an unreliable historian as to external facts, he had relied upon the accused's descriptions to others between 5 and 24 August 2011 of his internal feelings, state and experience. He said that he did this because his experience as a psychiatrist said that people were much more likely to be straightforward about what they were feeling. Dr Tanney does not rely on the accused's subsequent reports about his feelings during that period of time. Although he concedes that he had relied upon what the accused said to the police on 6 September 2011 about earlier events. He said that he did so because he was then on olanzapine and because the accused was addressing the childhood sexual abuse that was important to him.

336 I am cautious about relying on Dr Tanney's opinion where it in turn is reliant on the accused's account of his feelings (even contemporaneous accounts of his feelings) at times when the accused wanted something (eg drugs) or when he was justifying his behaviour (eg to police). There have been times, throughout his life, where he has lied about his feelings to manipulate others to get what he has wanted or to justify his actions.

337 Dr Tanney said that the accused had decompensated PTSD. He said that PTSD is a maladaptive response to stress. In the accused's case this is the stress of his childhood sexual abuse and the physical abuse at the hands of his father. Dr Tanney said that in the past the accused had been able to address the distressing feelings and experiences associated with the abuse by using substances, generally, and opiates, in particular, to suppress the anger, fear, guilt and shame associated with the traumatic experiences. Thus, he did not have regular flashbacks to the abuse, uncontrolled rage or rage at all. Dr Tanney said that when the accused detoxified from methadone in August 2011, those feelings of anger, fear, guilt and shame came to the fore. In Dr Tanney's opinion, throughout August the accused would have experienced them almost at the same time and that would have been very distressing to him. As the accused himself had said when he was in custody after the fatal incident, he had no coping strategies for dealing with these feelings, especially the anger. Dr Tanney said that it was the flashback to the childhood sexual abuse that the accused had when the accused was in Next Step at the beginning of August 2011 that reactivated all of those experiences. Dr Tanney said that the distress the accused suffered was not just the distress of an adult about what had happened when he was a child, but distress at experiencing the very feelings which he had experienced at the time of the abuse. The State does not dispute that at the time of the killings the accused was suffering from decompensated PTSD.

338 On questioning by me, Dr Tanney said that according to the definition of mental illness in the Criminal Code, he doubted that PTSD was a mental illness. This was because PTSD was a reaction of a relatively healthy mind to extraordinary stimuli, being the traumatic incident. However, Dr Brett gave evidence that in his view, given the length of time that the accused had PTSD, the accused's PTSD was an underlying pathological infirmity of his mind. He said that although the trauma came from extraordinary stimuli, it had had such a longstanding effect that it had affected the development of the accused's brain. He said that it affected his personality development, his arousal instincts, how he relates to people and his biological response to stress (ts 948). This opinion is not disputed by the State.

339 Dr Tanney said that the accused's symptoms of PTSD were agitation, racing thoughts, turmoil of emotions, feelings of suicide, dreams about dying, emotional lability, irritability, dysphoria ('feeling remarkably unpleasant as a result of a number of emotions such as anger, fear, guilt and shame') and substance abuse as a response to the PTSD.

340 He said that the agitation seen in PTSD was close to thought disorder but with PTSD there are not the racing thoughts (this appears to contradict what he had said earlier), tangentiality and overfamiliarity which the accused had. Dr Tanney said that tangentiality was a disorder of the form of thought and people who have PTSD do not talk about one thing and then go off to another topic (ts 812).

341 Dr Tanney said that sufferers of PTSD may become so irritable that it takes little to trigger them into behaving violently. However, he said that although it was a controversial area, the bulk of the expert opinion was that such violence did not represent a loss of the capacity to control actions.

342 Dr Tanney was crossexamined about the accused's previous diagnosis of ASPD. He agrees that ASPD was a type of behaviour that involved criminality and other personality characteristics including a disregard for or a violation of the rights of others occurring since the age of 15 years, as indicated by three or more of the following:

(1) failure to conform to social norms with respect to lawful behaviours as indicated by repeatedly performing acts that are grounds for arrest;

(2) deceitfulness as indicated by repeated lying, use of aliases or conning others for personal profit or pleasure;

(4) irritability and aggressiveness, as indicated by repeated physical fights or assaults;

(5) reckless disregard for safety of self or others;

(6) consistent irresponsibility, as indicated by repeated failure to sustain consistent work, behaviour, or honour financial obligations; and

(7) lack of remorse, as indicated by being indifferent to, or rationalising having hurt, mistreated or stolen from another.

In addition, for a diagnosis of ASPD the individual must be at least 18 years of age, there must be evidence of conduct disorder with onset before the age of 15 years, and the antisocial behaviour does not occur exclusively during the course of schizophrenia or a manic episode.

343 Dr Tanney does not dispute that the accused has ASPD. He agreed that the accused did not manifest his ASPD from 2004 2011 because the accused was on methadone and it muted the accused's emotions and masked his personality disorder. Dr Tanney agrees that despite the lack of overt signs of ASPD in this period, the traits related to ASPD such as irritability, aggressiveness, manipulation, lack of remorse and violent behaviour remained part of the accused's personality in that period of time.

344 Dr Tanney was asked whether he looked at the accused's behaviour after he withdrew from methadone in early August 2011 and considered whether those underlying traits affected the accused's behaviour on the morning of 25 August 2011. Dr Tanney said that ASPD was a potential explanation for the accused's behaviour but he feels that the descriptions of his behaviour by others, beginning in April and continuing after the fatal event afforded equally the explanation of hypomania. He agrees that it could be the ASPD and the decompensated PTSD working together to cause his behaviour. Dr Tanney also agrees that the ASPD was another explanation for the accused's lies after the fatal incident. However, Dr Tanney prefers the explanation that the accused was trying to make sense of what had happened, because he (Dr Tanney) thinks there was evidence of thought disorder. He said that was not seen in the criteria for ASPD or for PTSD.

345 I find the fact that Dr Tanney did not mention the accused's ASPD until he was crossexamined about it to be detrimental to my assessment of his reliability. It is clear from Dr Tanney's evidence from the point that it was raised with him, from Dr Brett's evidence and from a consideration of the historical material that the accused's ASPD is both an integral and important part of the accused's personality and an explanation for a large part of his behaviour. I do not understand how Dr Tanney could credibly give expert evidence about the accused's psychiatric issues during a lengthy examinationinchief and not mention it.

346 I asked Dr Tanney whether ASPD was a 'mental illness' for the purpose of the definition of 'mental illness' in the Criminal Code. Dr Tanney said that:

[T]here is now evidence that some people, who have antisocial personality, have recognisable brain abnormalities, so I would have to say yes, it would qualify.

Well, it could?It could, but

And on that basis, it could or it might not?Well, if there are recognisable pathological issues, then I think it qualifies as a mental disorder.

And in the accused's case, you would have to say that it could be, but it might not be also?It might not be (ts 865).

347 Dr Tanney went on to discuss expert views that ASPD may go into remission with maturity and counselling and that there was some evidence of this in the accused's background. Ultimately, he expressed the opinion that if the ASPD was in remission then it would not be a 'mental illness', but if it reappeared, and by that I gather he means becomes symptomatic, then it would be a 'mental illness' (ts 866).

348 Dr Tanney said that ASPD alone or in combination with PTSD and substance abuse could account for the accused's violent actions on 25 August 2011 but he did not believe that those matters alone could cause the accused to lose the capacity to control his actions. Of course, Dr Tanney's opinion is that the accused was suffering from something in addition to those disorders.

349 Dr Tanney was crossexamined about the accused's account of taking large amounts of benzodiazepines and alcohol between the time he discharged himself from Next Step and the time of the killings. I will not detail this evidence because I have decided that there is insufficient reliable evidence before me to conclude that the accused was consuming such drugs in large quantities. This is not to say that I reject the possibility that the accused took more than the prescribed dose of diazepam during that period. For example, he told Next Step that he was taking eight diazepam a day, at the watch house on 20 August 2011 he said his script was for four diazepam four times a day, Mr SutherlandMcCourt testified that on the evening of 24 August 2011 the accused told him that he had taken too many diazepam (ts 186), and he (the accused) told Ms Moore that he had taken more drugs than he should (ts 144). The accused's toxicology results on 25 August 2011 also indicate that he had been taking more diazepam than was prescribed.

350 In crossexamination, Dr Tanney said that he had assumed that the accused had not had any alcohol to drink on the evening of 24 August 2011. Dr Tanney agrees that he did not know whether the accused had drunk alcohol at the unit that evening and if he did, whether the resulting intoxication would have been sufficient to explain his violent behaviour. Dr Tanney said that it was a possibility but, in his view, it was a much more likely possibility that the accused was already hypomanic. He said that people who were hypomanic or manic drank alcohol because of their increased appetite and need for stimulation. He said that they thought that they could handle more than they could (ts 781). Dr Tanney agreed that if the accused was suffering dysphoric hypomania or mania and decompensated PTSD, an alcohol level of approximately .11 would have a significant impact on his mood and feelings. Dr Tanney said that hypomania or PTSD mixed with alcohol could make a lethal mixture (ts 782).

351 There is reliable evidence that the accused drank to excess in the period between 7 and 25 August 2011. There is evidence from witnesses that the accused was drunk on occasions, evidence in the police interviews that the accused said that he had sought and drank alcohol on the evening of 24 August 2011, evidence that Mr SutherlandMcCourt does not drink alcohol, evidence that Mr SutherlandMcCourt saw cask wine in the unit on the evening of 24 August 2011 (ts 186, 187), evidence in the unit of spirits and spirit and beer bottles, evidence that neither of the deceased had alcohol in their blood and there is Professor Joyce's evidence that the accused could have had up to a blood alcohol content of .11 at the time of the killings and still have returned a zero blood alcohol content at 2.00 pm on 25 August 2011. Taking all of this evidence into account, it is my view that the accused probably did consume alcohol on the evening of 24 August, although I do not know how much he drank.

352 In reexamination, Dr Tanney was asked whether methadone withdrawal could explain the accused's presentation after he came out of Next Step. Dr Tanney said that it could, but in his view it would be a rare case where methadone withdrawal caused substance abuse, irritability, insomnia, racing thoughts, labile emotions and the aggression which the accused demonstrated.

353 This opinion has to be put into the context that the accused was also suffering decompensated PTSD, ASPD and, sometimes, drug and alcohol intoxication, as well as the methadone withdrawal in that period.

354 Dr Tanney relies on a product insert for DMVF which indicates that there is a concern about aggression and violence associated with DMVF. He says that there are reports and legal precedents in the USA of people arguing that DMVF, or an SNRI, cause aggression. He says that there is a black box warning on medications of this type in the USA which says that in a small number of people, especially but not only young people, the drug can lead to suicidality, without being dose dependent. That is what he means by an idiosyncratic reaction. He says that the warning says that that it is necessary to watch that the patient does not become agitated, aggressive or show changes in behaviour. He says that when he traced it through, one of the possible changes is an elevated, a hypomanic reaction. He says that the product insert, is thus indicating concern about violence towards oneself or others as a result of an adverse drug reaction that may be hypomania. He then says that hypomania and mania have been associated with violent attacks.

355 Dr Tanney said that in his view the accused was hypomanic from when he was first placed on DMVF and that after the experience in Next Step it became much more florid.

356 DSMIV suggests that hypomanic reactions that are due to antidepressants need to, in some way, be regarded as different. Thus, as Dr Tanney believes that the accused's behaviour was caused by DMVF, he does not describe it as a hypomanic episode under DSMIV (ts 852).

357 Dr Tanney said that the symptoms of hypomania were also found in drug intoxication, alcohol intoxication and personality disorders (ts 869). Also, if a patient is hypomanic and they have those other problems, the symptoms of hypomania will be increased (ts 869 870).

358 In Dr Tanney's opinion the accused's actions in killing Mr Stoodley and Ms Barrett were affected by the feelings and the thoughts that he had had in the weeks beforehand. He said that the immense, almost moment by moment, fluctuations in his emotion, in his thinking and, in consequence, in his behaviour were almost as if he was experiencing all of the varying emotions and feelings at the same time. He said that this is characteristic of dysphoric mania. The characteristics of dysphoric mania are paranoia, so that one acts from mistaken beliefs and episodes of uncontrollable rage. Dr Tanney said that the difference between hypomania and mania is that mania has definite thought disorder and a hypomanic episode is not severe enough to cause social or occupational malfunctioning, or to necessitate hospitalisation. There are no psychotic features to hypomania.

359 He concedes that there is no direct evidence that at the time of the killings the accused had the thought disorder that would be required for a diagnosis of mania.

360 Dr Tanney said that the fact that the accused had racing thoughts is basis for his opinion that the accused had hypomania caused by DMVF. The accused told him that he had racing thoughts but, for the reasons I have already given, I do not place weight on this account.

361 I asked Dr Tanney some questions to try and resolve for myself whether he thought that at the time of the killings the accused had hypomania or mania. Dr Tanney gave the following evidence:

So, you're of the opinion that again, as at 25 August when the incident in the unit happened, that the accused had dysphoric hypomania?Hypomania.

Hypomania. And why hypomania as opposed to mania?The distinction is as Ms Forrester pointed out, that it's an intensity. So mania is just a more intense version of hypo. Hypo is a little less than manic. But one of the discriminating features is that to be called 'manic' there has to be disorder of thinking, not just of the racing thoughts and the tangentiality which can be present in both, but an increased intensity that slips over into affecting the content of your thinking; and the most common content that you see is grandiosity or persecutory feelings, or paranoia.

JENKINS J: And so - and you are of the view that his symptoms did not qualify for a diagnosis of mania?I am of the view that he was - that with the evidence we have about the emerging paranoia with respect to what had happened the weekend before, and the comments about - from the witness - I'm sorry, his name is gone - who - the single witness who said he spoke to him about God and the Devil, and about insanity and magical thinking, that at those times he would have qualified for a definition of mania. I can't say that he continuously qualified, but the nature of this disorder is it's fluctuant. But at those moments, with those symptoms - sorry, with those descriptions of his thinking, he would have qualified for mania.

So, your view would be that he had hypomania, and he may have had mania?I think he did have mania, but it was - that he

Sorry, as of 25 August, when these fatal events occurred?He did have hypomania, and he may have had mania.

And you're of the view that whatever it was, was caused by an idiosyncratic adverse reaction to DMVF?Yes (ts 859 860).

362 Later I asked Dr Tanney whether hypomania alone could cause the accused to lose the capacity to control his actions. Dr Tanney said no. In full, his answer was as follows:

If it was mania, I would have no problem at all saying, yes, that disorder has the capacity - has the ability to but would not have the capacity. Because it represents, in our understanding, it represents a psychotic disorder. It's a disorder of thinking, and of feeling. So if those are the two things that determine action, then if those are disabled in some way, then it's hard to see how he could be capable of controlling his actions. But, hypomania, without - see, what you've got with hypomania is just the emotional component of control problems, around irresistible impulse. What you don't have with hypomania, by our definition, is the cognitive disability. So I would have to say, with hypomania, we couldn't say that; with mania, we could say that it could explain it (ts 862).

363 Based on these views, if I am unable to find on the balance of probabilities that at the time of the killings the accused had mania signified by a thought content disorder, rather than just racing thoughts and tangentiality, I will be unable to find that the accused lacked the capacity to control his actions. The difficulty in this respect is that whilst Dr Tanney definitely is of the opinion that the accused had hypomania, I was left with the impression that he was much less sure that the accused was manic at the time of the killings. This may well be because there is no direct evidence of the fatal attack other than Mr SutherlandMcCourt's evidence of the very end of it, and the accused has not given a reliable account of it.

364 Somewhat confusingly, Dr Tanney later contradicted his opinion given above that hypomania alone could not cause a person to lose the capacity to control their actions. He said:

[T]hey can lack that capacity, because the nature of hypomania is that it interferes with, and disorders, the emotions, both in the type of emotion and in the ability of the person to handle and process emotion. And, as well, it interferes and perhaps not disables the processes of thinking. It doesn't lead to fixed beliefs that are delusions or hallucinations, but it disorders the processes of thinking in the symptoms of tangentiality, and racing thoughts, and overfamiliarity, and what I referred to yesterday as '[indistinct] ground'. The person has so many things going on at such speed in their head at the same time, that they can't make an effective discrimination of what's meaningful or what isn't, and what's important and what isn't. So they've got the thought process disorder, and they've got the emotional disorder of the way their emotions are working, and the kind of emotions they're having. And those things are the things that determine our actions. So if those are not acting properly, or if they're acting not only improperly, if they're acting in an erratic, or sometimes erroneous fashion, then it leads me to believe that he then would not have the capacity to control his actions, because the actions arise from his thoughts and his feelings in interaction (ts 872 873).

This is an apparent contradiction of his earlier opinion.

365 I asked Dr Tanney whether the accused could have had hypomania or mania caused by something other than an idiosyncratic adverse reaction to DMVF. Dr Tanney made the valid point that if it was not caused by DMVF, then there would have to be a mental disorder which had caused the hypomania or mania. He was unable to find such an explanation. He did not believe that the withdrawal of methadone would lead to hypomania, but that was the only explanation he could give. Dr Tanney opined that if I was satisfied that the accused had hypomania or mania which was not caused by a reaction to DMVF, then it would of itself be a mental illness for the purpose of the Criminal Code. That was because it was a pathological infirmity of the mind, although it was fluctuant. He also said that hypomania alone, absent even activated PTSD, could account for the accused becoming extremely violent (ts 862).

366 In reexamination, Dr Tanney was asked about the nature of the accused's possible thought disorder at the time of the killings. He said that there was a possibility that the accused had a thought disorder of delusional intensity at that moment because of the inferences that could be drawn from the accused's comments to Mr Horstead the previous week.

367 The difficulty with me accepting this is that there is no evidence other than that one conversation with Mr Horstead which supports such an inference being drawn.

368 Next, Dr Tanney referred to the fixed belief by the accused that Mr Stoodley had informed on him to the police in respect of the incident at his father's home. Although Mr SutherlandMcCourt had tried to persuade the accused that this was not true, there was evidence that the accused could not be talked out of it. In that respect, Dr Tanney said it was a fixed belief that was not open to logical argument so that it qualified, 'even if in minor intent, as a delusion, and so would qualify for the lack of capacity, because of a thought disorder' (ts 872). Dr Tanney said that the accused could be going backwards and forwards between hypomania and mania.

Observations on accused's capacity to control his actions April 25 August 2011

369 Dr Tanney interprets Dr Connor's notes on 15 June 2011 that the accused had said to him that his head was starting to go again as a reference to the accused having racing thoughts. However, I note that Dr Connor did not say that the accused complained of having racing thoughts at that time. Dr Connor's memory is that this was a reference to the accused's chronic symptoms, such as anxiety and depression.

370 In crossexamination, it was pointed out to Dr Tanney that the accused complained of racing thoughts in late April 2012 when he was no longer taking DMVF and was on methadone, olanzapine and a nonSNRI antidepressant. Dr Tanney explains the racing thoughts at that time as being a symptom of panic attacks (ts 824). He agreed that if the accused had racing thoughts in June August 2011, they could have been the symptoms of decompensated PTSD. Dr Tanney agreed that it was arguable that as the accused's methadone intake was reducing at that time, the amount of diazepam and alcohol he consumed was increasing because he was beginning to have to deal with some of his feelings associated with his childhood abuse (ts 825).

371 Dr Tanney also thinks that the accused's report to Dr Connor that he was feeling very good on the DMVF was consistent with a disturbance of feelings and thoughts as a symptom of hypomania. Dr Tanney does not accept that the accused could have been exaggerating the improvement in his mood which he felt as a consequence of using the antidepressant.

372 Dr Tanney said there is evidence that the accused experienced a loss of ability to control his actions between 8 and 25 August 2011, the period after the accused discharged himself from Next Step and before the fatal incident. In this regard, he relies on the evidence of the accused's statements that he was unable to control his actions, the accused's efforts to seek help to enable him to control those actions and that when he received olanzapine when he was in the police watch house, subsequently appeared in court and applied for bail he was able to function appropriately. He also refers to Ms Moore's evidence that when she saw him after his release from the police watch house, he was calmer, but still scattered. This suggests to Dr Tanney that she was describing his emotions on the one hand, and his thinking capacity on the other. Next, he relies on evidence of thought disorder when the accused spoke to Mr Horstead about God and the devil and the evidence of magical thinking when he told Mr Horstead to say 'insanity, insanity, insanity' and he then would not kill anyone. Dr Tanney thinks that the accused's antagonism towards Mr Stoodley was evolving into a paranoid belief that Mr Stoodley had informed on him to the police in relation to the incident with his father on 19 August 2011.

373 Dr Tanney also relies upon the evidence of Ms Phillips, who he describes as an 'experienced observer', who described the fluctuation in the accused's emotions. He regards her as describing the signs and symptoms of a 'hypomanic/manic reaction'. Dr Tanney said that he did not use the word 'manic' to describe the accused at that time because there was no direct evidence of the thought disorder that would be required for a diagnosis of mania (ts 753).

374 Dr Tanney relies on the accused's account to him that he had not taken olanzapine after 21 August 2011 as explaining why the mood regularising effect of that drug was not evident on 24 and 25 August 2011. The difficulty with this is that it is conceded by the accused that he is a poor historian and his accounts after the fatal incident of what drugs he took or did not take before the fatal incident cannot be relied on.

375 Dr Tanney refers to the accused's attempts to obtain assistance for himself after his discharge from Next Step in early August 2011 as indicators that the accused could not control his feelings and knew that he needed help. In this context Dr Tanney notes his consultation with Dr Connor, his visit to Narcotics Anonymous and his discussion with Ms Moore about going to Cyrenian House as evidence that the accused acknowledged he needed help.

376 Dr Tanney also relies on the accused allegedly saying to Ms Phillips that he could not control himself and needed help. I note that Ms Phillips testified that on 16 August, the accused told her that 'he was worried, he was getting violent and could not control it'. She said that was the day the accused was very intoxicated. Of course, I know that after that the accused visited Ms Kress, Mr and Mrs Eves and confronted his father but did not become violent with any of them, despite his unusual behaviour.

377 Dr Tanney also relies upon the accused's threat to sexually interfere with Ms Eves' baby as an indication of a lack of capacity to control himself (ts 759). Dr Tanney said that given the accused's own experiences it would be 'remarkably unusual' for the accused to talk openly about abusing a child, especially if at that time he was feeling guilt, fear and the shame of having been abused himself.

378 Unfortunately, in my experience as a judge and a legal practitioner, it is not remarkably unusual for a person who has experienced sexual abuse to be an abuser themselves. It is not a marker for lack of capacity to control behaviour. Whilst I do not suggest that the accused intended to interfere with Ms Eves' child, his threat to do so does not cause me to believe that he did not have the capacity to control himself at the time he spoke to Ms Eves. Rather, it seems to me that it is equally consistent with the accused intending to be as intimidating as he could be by threatening to do the worst thing he could think of to a person who Ms Eves loved very much.

379 Dr Tanney said that the feelings of a manic person are labile, irritable and elevated. He said that in the accused's case for whatever reason because of his irritability, the disorder of his thought processes and 'perhaps the paranoia' something happened which triggered the accused's rage on the morning of 25 August 2011. Dr Tanney said that when the rage happened for the period of it he had no capacity to control it. Dr Tanney said that that is what the accused had been telling people in the days before the fatal incident. That is, his emotions were so powerful that he could not manage them.

380 In my opinion, there is very little evidence to support Dr Tanney's proposition that the accused was telling people in the days before 25 August 2011 that he could not control his anger or rage. I have already considered the evidence of the accused's conversation with Ms Phillips. There were certainly times when he told people that he could control his anger by burning the back of his hand and that this was the only way he could control his anger. There were other examples of the accused agreeing to control his anger and apparently following through on that agreement. For example, when his daughter told him she would only take him to his father's place if he agreed not to hurt his father. The accused agreed to do this and did not hurt his father. He told the police that at his father's house he restrained himself. There are other examples of the accused saying that he was having difficulty controlling his anger. On 16 August 2011 he told Dr Connor that the 'had many triggers to violence and he was afraid what might happen'. He also reported to the CERT team that his anger was welling up and that he was 'going to lose it'. However, in that context, it is notable that the accused used that possibility as a threat in order to gain medication. He made a similar manipulative threat at Hakea Prison on 26 August 2011.

381 In crossexamination, Dr Tanney conceded that the accused's conduct with Ms Kress and Mr Doyle could have been caused by alcohol and that his behaviour with Ms Eves could have been driven, in part, by his intoxication with alcohol (ts 766).

382 In relation to the accused's comments about Mr Stoodley on the afternoon of 24 August 2011, Dr Tanney said that his comments disclose that he was suspicious and paranoid about Mr Stoodley but not delusional.

Observations on the accused's capacity to control his actions at the unit on 25 August 2011

383 Dr Tanney does not draw any conclusions about the accused's capacity to control his actions from Mr SutherlandMcCourt's account of the accused having an unusual look in his eyes at the time of the killings. Dr Brett is of the same view and so I will not refer to this again. Both psychiatrists accept that during a time of great emotion and violence, there is often dissociation at the very moment of the violence but dissociation is not an explanation for the behaviour.

384 Dr Tanney does, however, rely on the accused's response to Mr SutherlandMcCourt saying to him at the time 'what have you done; what have you done?' Dr Tanney is of the view that the accused then did stop his attack and he is of the opinion that this was a similar response to other occasions on which he had been firmly directed to do something and he had done it.

385 The first such occasion Dr Tanney said was when 'his [daughter]' spoke to him at the daughter's birthday party. In fact, Ms Moore did not testify that she told the accused not to speak about inappropriate topics at her daughter's birthday party. She said she had told him on some occasions to 'shush' when her children walked into a room and he was talking about his father and the perpetrator of the childhood sexual abuse. She said that when she 'shushed' him, he would stop talking about those topics.

386 The second occasion Dr Tanney refers to was when Ms Millen told the accused to sit down and that she would make him coffee. She said that the accused then sat down and, apparently, abandoned his stated intention to leave to visit his exwife.

387 Dr Tanney believes that these were two occasions on which the accused was spoken to firmly and clearly and, as a consequence, had allowed control to be exerted by others because he was not able to control himself. Similarly, Dr Tanney said that from the time Mr SutherlandMcCourt spoke firmly to him in the unit on the morning of 25 August 2011, the accused acted in control of his actions so that he was then able to speak to Mr SutherlandMcCourt about the events which had occurred and to leave the unit. He no longer lacked the capacity to control his actions.

388 Dr Tanney observes that it is extremely difficult to distinguish between a person who had an impulse to do something and then did an act because the need or impulse was so overpowering or, alternatively, a person who had such an impulse and did an act because he or she did not have the capacity to stop themselves from doing the act. Dr Tanney said that the decisionmaker has to examine the mental state of the person and their behaviour, both before and after the event, and to draw an inference about what happened in the moment when the act was done.

389 Dr Tanney said that in the moments the accused killed Mr Stoodley and Ms Barrett he believes that the accused experienced what he had experienced earlier when he told others that he could not control his actions and he had done things for which he immediately afterwards felt shame and regret. In this respect, Dr Tanney refers to the accused hitting his soninlaw, his behaviour with Ms Eves and his behaviour with Ms Kress and Mr Doyle (ts 756).

390 I find it difficult to equate the accused's behaviour on those other occasions with behaviour which the accused was unable to control. First, I know very little about the incident with his soninlaw and so could not say that the accused was not able to control his actions when he hit his soninlaw. In respect of the incidents with Ms Eves and Ms Kress, the accused's behaviour was unusual but the witnesses to those events did not say that the accused appeared to be unable to control his behaviour at the relevant time. At certain points in those encounters, the accused did things and at other points he stopped doing those things and decided to do other things or go elsewhere. On one view, the accused's behaviour with Ms Kress was explainable because of his desire for sexual release and his wish to taunt Mr Stoodley. The incident at the Eves' home is not so easily explained. However, in my opinion, on neither occasion did the accused lack the capacity to control his actions.

391 Dr Tanney's view is that the ability to control movement does not detract from his opinion that when there was a 'trigger', the accused's irritability was aroused and he was overwhelmed by the quantity of his feelings. In Dr Tanney's opinion, he was then unable to deal with his feelings and he lost the capacity to control his actions (ts 874).

392 Dr Tanney said that the decompensated PTSD and the accused's dysphoric hypomania/manic disorder worked together so as to deprive the accused of the capacity to control his actions. He said:

Hypomania and mania make one - the triad that I spoke of before, paranoia, rage and irritability and that - those are there because of the manic disorder. He wasn't irritable when he wasn't hypomanic; he wasn't raging when he wasn't hypomanic. ... and he's paranoid so he's acting from an illogical framework ... (ts 759).

There are numerous examples around the world of people with PTSD harming and violently harming people who are important or important to them. But it's not done in the context of what I think is additional to this which is that he was experiencing a hypomanic and manic reaction at that moment that is, by definition, a mental disorder that has components of the inability to manage your thoughts and your feelings. Your thoughts because you're paranoid and your feelings because of - well, no, your thoughts because you're paranoid in the content. And in the process you can't maintain a train of thought because you're tangential, you're circumstantial, you're over-inclusive (ts 760 761).

394 It was put to Dr Tanney that it was very rare for a patient not to have delusions, to know what they were doing, to know that it was wrong but not have the capacity to control their actions. Dr Tanney said that although it was rare to hear of such a case, he had discussed with other psychiatrists that it was something that they wished they had more opportunity to bring forward because disorders of feeling and control of feelings may be as important in controlling behaviour as disorders of the content of a patient's thinking.

395 Dr Tanney said that if there was evidence that the accused had planned to kill or seriously injure Mr Stoodley prior to the fatal incident, that would detract from his opinion that at the time of the killings, the accused lacked the capacity to control himself (ts 818).

396 Dr Tanney acknowledges that the accused may have a good memory of what occurred in the unit but that does not mean that he understood why it had occurred (ts 845).

397 Dr Tanney said that he would have to revise his opinion as to whether the accused had the capacity to control his actions if a finding was made that he was not hypomanic as a result of intoxication with DMVF. He said that he would have to consider the possibility whether the accused's decompensated PTSD, history of substance abuse and possible intoxication with a substance could lead to the fatal incident. He said that this brought the issue back to a consideration of rage without paranoia. He said that people with PTSD and with substance abuse who act violently do not describe their actions as intended and that many of them had a period of dissociation, like a blackout. However, he said that there was no evidence of a blackout in this case. After some time for consideration, Dr Tanney said that he believed that the preponderance of expert psychiatric opinion was that if a person had rage associated with PTSD which led to violence, it would be characterised as an impulse that was not resisted as opposed to one that could not be resisted. He said that such an explanation could not include a lack of capacity to control the accused's actions (ts 855).

398 Dr Tanney was also asked to explain the mechanism by which the accused lacked the capacity to control his actions. Dr Tanney said that he had an inability to process the emotions that are attached to his thoughts that help to create intent. He said that he could also not exclude that the accused's thinking may have been disordered in terms of its content. He said that he thought that the way the accused was thinking was disordered but he acknowledged that what he was thinking may not have been disordered. This is the distinction that Dr Tanney makes between a thought processing disorder and a thought content disorder.

Observations on the accused's capacity to control his actions and events on 25 August after leaving the unit

399 Dr Tanney relies upon the accused's account that he (the accused) saw people at the train station after the fatal events at the unit and that this brought back some order in his mind. The accused said to the police:

I was speaking to some people; and just to get my head going, you know, I just stopped what was happening in my head. Because these people - I didn't think - look mate, honestly when I found out, I could have stopped it (ts 37).

Dr Tanney interprets this answer as meaning that it was only at the railway station that the accused was able to control his thoughts. He also interprets it as an acknowledgment by the accused that if what was happening in his head earlier had not been going on, he could have stopped the killings (ts 843).

400 I decline to rely upon the accused's account and Dr Tanney's interpretation of it. It is just one more statement made by the accused after the event which is probably not reliable and there is no independent evidence to support the account. Further, Dr Tanney's opinion relies on assumptions about the meaning of the comments which I am not prepared to make.

401 Dr Tanney said that in his view after the killings the accused tried to make sense of what had happened. He knew that people were dead but he had no explanation or understanding of how the deaths had happened. Thus, he continuously looked for input to be able to make sense of what had happened. Dr Tanney said that he does not think that the accused tried to construct a story to those he spoke to. Rather, he told madeup stories because although he knew what physically had occurred, he could not explain what was behind it. Dr Tanney said that he thinks that immediately after the fatal incident the accused was 'flipping backward and forward'. Dr Tanney thinks that he tried to figure out what had happened at the unit, but all he could think about was his childhood sexual abuse. Dr Tanney thinks that his thoughts intruded into his mind because of his mania, his racing thoughts and his tangentiality. So instead of asking someone what had happened at the unit, the accused spoke to people about the abuse because he could not keep track of his thoughts.

402 It is difficult for me to accept this explanation. For example, although there were times during the 25 August 2011 interviews with the police where the accused clearly found it difficult to concentrate on what happened in the unit, there were other times when he was able to do so. When he did, he gave an account of events at the unit which was false and which he must have known was false. He does not dispute this. At no time did he express any uncertainty about what had happened or about why it had happened. To me, this is at odds with Dr Tanney's view that the accused was looking for input to try to make sense of the events. This is especially so given that initially the accused sought out Mr Dunn and Ms Millen who he knew could not give him such input and offered a false story to them before there was any attempt to interrogate him.

403 Dr Tanney does not think that the accused's ability to provide an account of what happened in Mr SutherlandMcCourt's unit, albeit a false account, detracts from his opinion that the accused did not have the capacity to control his actions during the fatal incident. He said that being tangential did not mean that the accused would lose track of what he was thinking about. It just meant that he would 'go off and become circumstantial'. He would still know what he wanted to say, although he would not say it clearly because of interference from other thoughts (ts 814). Dr Tanney thinks that was what he saw at times in the interviews with the police. The accused drifted off and talked about other things that were not relevant. The police had to bring him back to what they wanted to speak about. Dr Tanney thinks that the accused's ability to maintain the same false account was the accused's ASPD emerging. In effect, Dr Tanney believes that the accused thought that he needed to find an explanation for what had occurred in the unit and he made one up (ts 814).

404 However, Dr Tanney acknowledges that there were times in the interviews with the police where the accused bargained with the police, that is, he told them that he would tell them what happened if they told him who had 'dogged' on him (ts 836).

405 Dr Tanney observes that at times during the interviews with the police, the accused digressed to talk about his childhood abuse and afterwards was able to return relatively easily to speak about the events of that morning. Dr Tanney interprets this as a form of brief emotional decompression. Having spoken about the abuse, he was provided with a brief period of relief from having to deal with the anger and frustration it aroused. It enabled him to regain control of his emotions (ts 831).

406 Dr Tanney also noted that in the police interviews the accused spoke of protecting people who he saw as weak and unable to protect themselves from unfairness. Dr Tanney identifies this as the accused's use of violence to achieve the goal of protecting others (ts 832). In my view, this raises the possibility that the accused used violence against Mr Stoodley and Ms Barrett to protect his 'rock', Mr SutherlandMcCourt, from what he saw as Mr SutherlandMcCourt's exploitation by the deceased. There are also parallels in the account of the accused's approach to interpersonal relationships recorded in the 2002 VOTP report.

407 Dr Tanney concedes that, in part, the accused wanted to speak to Inspector Munnee because he was familiar with him and would feel safe with him. Dr Tanney's opinion is that the accused chose Inspector Munnee because he knew him, thought that he would assist him in his time of need and thought that he could help the accused make sense of what had occurred in the unit. In these ways, the accused achieved some 'emotional decompression' from the interview with Inspector Munnee which then enabled him to speak more clearly, although dishonestly, to the detectives (ts 838).

408 Dr Tanney's only explanation for why the accused ultimately implicated Mr SutherlandMcCourt in the killings is that he was showing selfinterest. In crossexamination, Dr Tanney agreed that the interview unfolded as if the accused knew that he could not avoid being implicated to some extent in the killings and, therefore, he decided to minimise his role and maximise Mr SutherlandMcCourt's role as an act of selfinterest (ts 840, 844).

409 When it was highlighted to Dr Tanney, in crossexamination, that the accused had sought out people who he knew would know nothing about what had happened that morning in the unit, being Mr Dunn, Ms Millen and Inspector Munnee, Dr Tanney agreed that he had done so in order to speak to people who would provide him with a 'safe haven'. In Dr Tanney's view, these people would be likely to reassure the accused that he was a good person and not violent. The inference being that the accused wanted to be reassured that he could not have killed Mr Stoodley and Ms Barrett, even though he knew that he had done so. This is a different view from the one which Dr Tanney had earlier expressed that the accused was seeking information from others as to what had happened at the unit.

410 Also, given what the accused said to Inspector Munnee, Dr Tanney concedes that the accused had tried to negotiate the easy option with the police. That is, he had tried to speak to Inspector Munnee, who he thought would be sympathetic to him, and to avoid speaking to the detectives. He had also tried to negotiate with Inspector Munnee and to bargain with him to try and find out information about what the police knew and who had 'dogged' on him in exchange for his account of the fatal events.

411 Because of these aspects of the accused's behaviour, I find it difficult to accept that, at least in respect of the accused wanting to speak to Inspector Munnee, he was simply trying to speak to someone who would reassure him about his innocence and help him to try and make sense of what had occurred. As with other aspects of the accused's behaviour, the accused was, in my view, manipulating the interviewing process. He tried to do this in two ways. First, by ensuring that he spoke to an officer who he thought would be sympathetic to him and easy to convince of his innocence, and secondly, by only disclosing to the police what he thought they were aware of. As part of this process he tried to discover who had provided incriminatory information to the police. In my view, it is clear that the accused was thinking clearly enough at the beginning of the interviews to appreciate that if Mr SutherlandMcCourt had not implicated him in the killings, the police would not be in possession of information which would be seriously damning to him.

412 Dr Tanney acknowledges that at various times in the police interviews the accused appears to get angry with the police and says he is angry with the police, but nevertheless does not act on that anger. This is despite the fact that the police at times push him quite hard and mention matters that, on Dr Tanney's analysis, would be very stressful to him. Further, when the accused says he is angry, he also says that he is going to control himself. He appears to control his anger without using a mechanism such as burning himself. Dr Tanney agrees that during the interviews he increasingly gains control over his anger and Dr Tanney believes that that is because he has ventilated his emotions with Inspector Munnee (ts 842).

Observations on the accused's capacity to control his actions after 25 August 2011

413 Dr Tanney is of the view that the accused's hypomania was essentially contained by the end of his first week in custody because of the structure of prison life and the olanzapine and diazepam that the accused was then receiving. Also, he said that the accused had not had the opportunity to drink alcohol.

414 Dr Tanney said that the accused's ability or capacity to control himself had been fluctuant. Once the accused was in a structured environment and was given medication it did not take long for him settle. He said that this was the experience of people who were hypomanic or manic when they were placed in hospital and given medication. Dr Tanney does not think that the accused's aggression whilst in custody had anything to do with hypomania or mania. He said that the accused was still a little bit disinhibited but he accepted that at times he chose to act in an aggressive way whilst he was in custody.

415 Dr Tanney's hypothesis is that there had to be a trigger, that is, something that happened between the accused and the deceased that 'set off what happened' (ts 818 819). The trigger turned the accused's irritability into rage quite quickly. In Dr Tanney's view the theme of the trigger would have been either drugs or sex. But he does not know what it was. Dr Tanney concedes that if Mr Stoodley was asleep when he was first assaulted, as the accused said he was in the final account that he gave to the police, there could not have been a trigger for the attack on him. I have not relied on this possibility as there is insufficient reliable evidence to enable me to find that Mr Stoodley was asleep.

416 Dr Tanney is of the opinion that the accused, at the time of the killings, had the capacity to form an intent to seriously injure or kill someone (ts 848 849).

417 Dr Brett was asked by the State to give an opinion for this trial and for that purpose he was provided with the first report by Dr Tanney. He was also given a number of witness statements, some documents from community corrections, documents from Next Step and the notes of Dr Connor. He also spoke with Professor Joyce in relation to some particular matters regarding toxicology and pharmacology.

418 Dr Brett is of the opinion that at the time of the killings the accused had an impaired capacity to control his actions. He said that to lose that capacity a person would need to be extremely unwell. They would need to show florid symptoms and signs of mental illness. They would need to be extremely thought disordered or extremely psychotic. From his perspective, there were no such signs or symptoms in the accused. He agrees that the accused had some difficulty with impulse control and that this related to his ASPD, his substance abuse and his PTSD. Dr Brett said that all of those matters reduced the accused's capacity to control his actions, but he does not think that they deprived him of that capacity.

419 Dr Brett is of the opinion that whilst hypomania caused by DMVF and reactivated PTSD is a plausible hypothesis, it is one that is extremely low in the order of likely scenarios. That is because:

(2) he does not think that the accused exhibited symptoms consistent with hypomania until his methadone was withdrawn;

(3) the accused had preexisting conditions which impacted on his mood regulation and his presentation, which explain his symptoms; and

(4) there is insufficient evidence that the accused had any real problems until he detoxified from methadone (ts 958).

420 Dr Brett said that, opposed to a hypomanic episode, a more reasonable hypothesis is that there has been a trigger, such as issues about heroin, acting on the accused's PTSD, resulting in him decompensating and becoming more angry and violent. However, he does not believe that affords the accused a defence under the Criminal Code s 27 because such a condition would not make the accused unable to control his actions, despite his state of emotional arousal. He thinks that there is evidence following the killings to demonstrate that the accused was thinking quite clearly.

421 Dr Brett interviewed the accused on 11 and 25 February 2013 and 11 March 2013. The accused told Dr Brett some of the things he had done before the fatal incident. He said that things 'got a bit vague'. He recalled getting up, going into the lounge room where the two deceased were talking and watching TV. He stated that he fell asleep on the couch. He woke up to a commotion and the two deceased were arguing. He then told Dr Brett that he could not recall what happened after that, but he recalled fighting with Mr Stoodley and Ms Barrett and felt like he had to fight for his life. He stated then afterwards he ran out of the door. Dr Brett said that it was not uncommon for people to forget large tracts of information about violent incidents. He said that he thought that it was the way the brain protected itself.

422 In February and March 2013, the accused was able to give a coherent history, he presented himself well, he appeared to cooperate and Dr Brett considered that he established a reasonable rapport with him.

423 The accused told Dr Brett that he had increased his alcohol and benzodiazepine use prior to the fatal incident. He told Dr Brett that preceding the offence he had used 10 to 15 diazepam but that in the weeks preceding that he had taken a lot more. He told Dr Brett that he had taken diazepam and alprazolam. Dr Brett formed part of his opinion on the basis of this history. I refer to my previous finding that I do not accept that the accused took very large amounts of benzodiazepines in the week prior to the killings. I am not prepared to rely upon the accused's account in that respect or to rely upon Dr Brett's opinion insofar as it relies on it.

424 Dr Brett said that following his childhood sexual abuse the accused had a history of conduct disorder. The abuse affected his personality development, he used anger as a significant method of managing personal issues and he described symptoms consistent with PTSD. That is, he had flashbacks to the abuse, he became increasingly aroused and agitated with the flashbacks, things that reminded him of the abuse made him very upset and aroused again, he became more anxious at times and he struggled to maintain intimate relationships.

425 A conduct disorder is antisocial behaviour that occurs in children and adolescents. It is usually seen as a precursor for ASPD.

426 In Dr Brett's opinion, it was the PTSD that would cause the accused to have flashbacks and to feel that he was back when he was a child. He said that hypomania would not cause him to experience issues with keeping himself in the present reality (ts 911).

427 ASPD is a malfunctioning personality. People with ASPD have poor coping mechanisms, they view the world in different ways to other people and their personalities can cause them to conflict with society or with other individuals. The commonest manifestation is criminal behaviour but it can also manifest in aggression, irritability, lack of remorse and failure to learn from previous experiences, so that recidivism is also a manifestation of a disorder. Dr Brett commented that the psychiatrists and a psychologist who had seen the accused in the late 90s had all commented on his antisocial personality structure.

428 Dr Brett is of the opinion that ASPD should not be included as a 'mental illness' as the term is defined in the Criminal Code. However, he acknowledges that it is a pathological infirmity in that it is a chronic condition and there is 'some evidence there are some biological differences in the brains of people' with ASPD (ts 949). Despite this, he does not think that most psychiatrists would think that ASPD is a mental illness. Dr Brett said that someone with ASPD will more likely than not have changes in the brain but it is not possible at the moment to treat such patients with medication and that is why clinicians do not classify ASPD as a mental illness (ts 951).

429 Dr Brett is of the opinion that the accused's ASPD would have had an impact on his capacity to control his actions because one of the core features of ASPD is impulsivity. However, he does not think that it, in itself, is sufficient to deprive a person of the capacity to control their actions as opposed to reduce their capacity to control their actions. He is also of this view if PTSD and ASPD are considered together (ts 950).

430 Dr Brett said that some people with ASPD improved as they matured (ts 962). He also agreed that there was evidence in the accused's background to show that he was genuine in his attempts to deal with his various problems, including his addiction.

431 Dr Brett said that you can not separate the accused's ASPD from his PTSD. He described it as the ASPD being the canvas on top of which everything else, including the PTSD, was laid (ts 1,015).

432 Dr Brett notes that the accused had selfmedicated against the feelings that he felt as a consequence of the childhood abuse by abusing a number of substances. Opiate was his main issue but Dr Brett notes that he also used cannabis, alcohol, benzodiazepines and amphetamines. Dr Brett notes that the accused also used methadone at various times and that the sedative effect of methadone reduced his arousal and anxiety. It had the effect of putting his disturbing thoughts of PTSD in the background. Thus, when the methadone ceased in August 2011, those issues came to the front of his mind again. Likewise, the antisocial personality traits which had been dampened by the methadone came to the fore (ts 895).

433 Dr Brett believes that intoxication with a large amount of benzodiazepines can cause arousal, irritability and agitation. In this respect, I defer to the opinion of Professor Joyce who says that this would be very unlikely in the accused's case. For example, I do not accept Dr Brett's opinion that the accused's presentation in August 2011 was an indication of gross intoxication with benzodiazepines (ts 984).

434 Dr Brett is also of the opinion that the accused's PTSD is very significant in the context of his behaviour after his methadone detoxification. He says that without the buffer of methadone, the accused's posttraumatic stress would make him more aroused and more agitated.

435 Dr Brett said that DMVF was a commonly prescribed antidepressant. He said that similarly to all commonly prescribed modern antidepressants DMVF had a risk of side effect. He said that he had seen hypomania as a result of the use of DMVF but only in people with bipolar disorder. This is consistent with Professor Joyce's evidence. He said that because of the results of a literature review which he requested the pharmacy department at Graylands to carry out, he is of the opinion that there is a 'very small incidence for hypomania and mania with DMVF' (ts 897). I note that, in the context of Professor Joyce's evidence about causation, Dr Brett used the term 'incidence'. Dr Brett said that the hypomania and mania which was the incidence of DMVF had as their characteristics rage, anger, and violence up to homicidal violence.

436 Dr Brett said that hypomania is an elevated mood. It can affect people in different ways. Patients can be more irritable, need less sleep, talk quicker, can be disinhibited and can become more aroused. He said that in true hypomania a patient feels their mood is higher so that they can feel euphoric. He said that there was dysphoric hypomania where a patient felt more angry and aroused. They could be uncomfortable because their mood fluctuated somewhere between good moods and bad moods. Dr Brett said that hypomania and no other associated symptoms was quite a common presentation. It could result in acts of violence against another. Dr Brett said that there is an association between violence and hypomania but that could be because hypomanic people were disinhibited and so came into conflict with others more often. He said that hypomania was an elevated mood so that by itself it did not cause violence (ts 898).

437 Dr Brett said that there is a lot of crossover between symptoms of hypomania, drug intoxication, particularly alcohol intoxication, benzodiazepine intoxication, PTSD and ASPD. In Dr Brett's view, there are a number of conditions which could have been causing the accused's mood lability and he thought that it was a better option to simply call it that. Areas of crossover include irritability, mood lability, arousal, aggression, agitation and lack of sleep. In Dr Brett's opinion, methadone had been a buffer to protect the accused from these symptoms.

438 Dr Brett gave evidence about the accused's selfinflicted cigarette burns. He said it was not uncommon for aroused people or for people with personality disorders to attempt to control their own arousal by selfharming or inflicting pain on themselves. He said that it was not a mature coping mechanism but it was probably a better option than hitting another person. He said it did indicate an inability to selfsoothe without inflicting pain on either yourself or another person (ts 916, 925, 1,000).

Observations on accused's behaviour and capacity to control his actions April 25 August 2011

439 Dr Brett regards Dr Connor's records of and evidence about the accused's conduct and feelings in 2011 before the accused's complete detoxification from methadone as being consistent with most patients who are detoxing. That is, they can become increasingly anxious and depressed. He said that it is usually 'a bit of an up and down process' (ts 896). Consequently, he was not surprised that Dr Connor considered that the accused was depressed and that he prescribed DMVF in April 2011.

440 Dr Brett regards Dr Connor's note of his consultation on 18 May 2011 as reflecting that the DMVF was performing as it should have been. He thinks that within three weeks the DMVF could have relieved the accused's anxiety. He said that it was not uncommon to have early side effects such as the initial hot flushes which the accused experienced, but this was not associated with the occurrence of other side effects.

441 Dr Brett regards the accused's initial dose of 100 mg of DMVF to be an appropriate low dose to allow the antidepressant to 'bed in' and he also regards it as appropriate that when the accused reported to Dr Connor on 15 June 2011 that his 'head started to go again' that Dr Connor raised the dose to 150 mg per day. Dr Brett does not consider that the symptoms which Dr Connor recorded between the initial prescription of DMVF and the consultation on 15 June 2011 as being indicative of hypomania. Dr Brett thinks that they are more consistent with the accused's depression and anxiety. This is especially as the accused was still using alcohol, cannabis and benzodiazepines. Dr Brett also thinks that there was a possibility that the accused was using amphetamines at this time given a note in Next Step's records and based on a comment made to him by the accused.

442 As to the accused's benzodiazepine use, Dr Brett said that five to six diazepam a day would be a very average dose for a person with the accused's history and it would be unlikely to have affected him in any significant way.

443 In relation to the accused's presentation to Dr Connor on 20 July 2011, Dr Brett said that it was possible to infer that the accused was reporting a higher than normal mood but there was no evidence of dysphoric hypomania. Contrary to Dr Tanney's view, Dr Brett is of the opinion that some people who have been chronically depressed and have their depression treated describe their mood as being very good when to people whose usual mood is not depressed the same mood would be quite normal. Consequently, sometimes when a patient being treated for depression describes a great mood it may, in reality, be a normal mood.

444 Dr Brett notes some increased agitation and arousal whilst the accused was in Next Step as well as the conflict with other people in the programme. However, he feels that the obvious change in the accused was when he left Next Step. He sees the incidents in Next Step as being the beginning of a deterioration in the accused's mental state. He notes that over the following three weeks the accused became much more erratic, chaotic, aggressive, angry and his mood was more labile.

445 Dr Brett believes that as the methadone wore off so did the accused's protection from feelings associated with his childhood abuse. He notes that in the group therapy in Next Step another patient called him 'dumb'. This was one of his trigger points. In addition, there was the incident with the 'alpha male' who was aggressive towards him. Dr Brett is of the opinion that because the accused had no medication to help protect him against his feelings and because he did not have the personal mechanisms to protect him either, he became increasingly agitated. Dr Brett notes that the accused had mood dysregulation, but he said that there are a lot of causes for mood dysregulation, hypomania being only one of them.

446 Dr Brett said that there was evidence of disinhibition and increased sexual drive which could be as a consequence of alcohol intoxication, benzodiazepines or hypomania. Further, the behaviour with Ms Kress was consistent with the accused's ASPD in that the aim of it was to upset another person. That is an antisocial goal. Dr Brett does not think that the accused's behaviour with Ms Kress is evidence of hyper sexuality. He said he was not having sex with her. Rather, he was attempting to taunt Mr Stoodley. He says that this would be consistent with the accused's ASPD (ts 972).

447 Dr Brett thinks that the accused's behaviour with Mr and Mrs Eves could have related to a mental disorder but it was mostly consistent with ASPD. He said that the threats were quite antisocial and would not have occurred without the ASPD, although hypomania may have made them more likely to occur. Also, Dr Brett is of the opinion that the accused's benzodiazepine use and alcohol intoxication made such events more likely to occur. He said it would be a very unusual psychiatric presentation (ts 974).

448 Dr Brett observed that the accused's threat to sexually molest Ms Eves' child was at odds with the accused's own experience of sexual abuse. On the other hand, Dr Brett acknowledged that most people who sexually abuse others have been abused themselves. Dr Brett also is of the view that the accused made the threat because it was the first thing which came into his mind because he had been thinking about being physically abused himself. The relationship he has in his mind between violence and sexual abuse made it much more likely that he would make that kind of threat.

449 Dr Brett believes that the accused's presentation to the CERT team in the police watch house was consistent with hypomania, but also consistent with other things. He does not think that the accused's consumption of two olanzapine tablets in the preceding three days would have reduced the obvious symptoms of hypomania. Dr Brett believes that it is relevant to note that, when he saw the CERT clinicians, the accused was aggrieved at the way he had been arrested and that this made him feel very angry. This, on top of his drug use, his mood lability and the reactivation of his PTSD had made him become quite agitated. Dr Brett thinks that it is significant that the CERT clinicians described him as manipulative and that would be more consistent with his underlying ASPD than any other condition. Dr Brett agrees that the accused was trying to manipulate the clinicians to give him more medication than he had been prescribed. He said this may have been because the accused knew that he had been using much more than he had been prescribed and was worried that he was going to withdraw if he ceased to take the vast amounts of diazepam he had been taking. Again, this is an opinion which I treat with caution because of the lack of evidence that the accused had been taking vast amounts of diazepam. I think it is probable that the accused had to some extent been abusing benzodiazepines after detoxification from methadone, but I do not accept that he had been taking extremely large amounts of them.

450 Dr Brett is of the opinion that the accused's manipulative behaviour whilst at the prison watch house was not consistent with disordered thoughts. Rather, he said that the accused displayed very ordered thoughts in that he knew what he wanted which was more medication and he knew how to get it. That was by refusing to take the medication offered to him. Dr Brett said that his threat of suicide whilst in the watch house was another example of his manipulative behaviour as he knew that it meant that a clinician would be called in to assess him and he would be likely to receive more medication. He said that it was very common for people with ASPD to act like that.

451 Dr Brett is of the opinion that the accused's interview with the police after his arrest for the incident at his father's home was consistent with reactivated PTSD. He notes that the accused was concerned that he was withdrawing or, in his words, 'hanging out' and he was starting to sweat. He was acutely distressed at times when discussing his previous abuse and there was some evidence of antisocial values and odd values with regard to organising for his father's guns to be taken back to the police even after he had told his father that he would not do so. He said there was evidence of some mild mood disturbances but he did not think it was consistent with hypomania and, if it was, it was at the extremely mild end of hypomania. Dr Brett did not observe any evidence of a thought process disorder. He said that a lot of the content of the interview was about the childhood abuse that the accused had suffered but he does not think that was an inappropriate focus for the accused given that the accused wanted to tell that part of his story to the police to justify his actions with his father. He said that the accused seemed rational, even though the account he gave was not consistent with the account that the accused gave Dr Brett of the occurrence with his father. He told Dr Brett that he took the guns to punish his father and it was an 'eye for an eye' (ts 924). Dr Brett said that the account that the accused gave to the police was a rational account from his perspective to minimise his liability, to increase the likelihood of him obtaining bail and to increase the likelihood of being found innocent of any offence related to the incident with his father. Dr Brett does not think that the interview disclosed any indication of hypomania (ts 925).

452 Dr Brett believes that there is evidence that the accused had made a plan for himself as to how he was going to manage his anger by burning himself if he became too distressed with his father. Dr Brett said that the fact that the accused promised Ms Moore he would not be violent and told the police that he was able to control himself when he confronted his father suggested to him that the accused had control over his actions at that time (ts 925).

453 In respect of the accused's behaviour during the bail application, Dr Brett said that there could have been slight elevation in the accused's mood but he thought that it was consistent with the accused's personality structure. There was no evidence of florid hypomania and the only reference which could be construed, possibly, as grandiose was his statement that he was able to post a million dollar surety, an assertion which he did not follow up. Dr Brett noted that he acknowledged to the magistrate that he was cheeky and immediately apologised for that. In Dr Brett's view, the presentation was a variant of normal. Dr Brett had previously given evidence that olanzapine given at the watch house would have provided some sedation to the accused quite quickly, but would not have had an effect on any psychosis in that period of time.

454 Dr Brett agrees that Mr Horstead's account of the conversation with the accused about God and the Devil was a pointer that the accused was not psychiatrically well (ts 988). Dr Brett thinks that the conversation with Mr Horstead about sex was consistent with acute intoxication with benzodiazepines and also with hypomania (ts 988). I do not accept that it is consistent with acute intoxication with benzodiazepines. He agrees that the conversation with Mr Horstead about saying 'insanity, insanity, insanity' suggested some disorder in thought (ts 989) and that it was consistent with a lot of things, including hypomania.

455 Dr Brett said that a mental health professional would need to follow up a report of the conversation to ascertain whether there was evidence of a thought disorder or psychosis. However, he said that he could not convince himself that there was. Dr Brett said that if the accused had a thought disorder or psychosis he would have expected those beliefs to be pervasive and for them to have been noted by other witnesses.

456 In relation to the accused's comments to Ms Phillips, Dr Brett draws a distinction between the accused's comment that he could not control his anger as opposed to not being able to control his actions. Dr Tanney's view was that such comments may demonstrate a reduced capacity to control actions but do not indicate an absence of ability to control actions (ts 932).

457 Dr Brett appears to agree with the American Psychiatric Association, which has said that the difference between an irresistible impulse and an impulse not resisted is the difference between twilight and dusk. That is, it is nigh on impossible to tell the difference. Bearing that in mind, Dr Brett said that in the accused's case, there were many examples to show that the accused still had capacity to control his actions. For example, he had burnt his hands with cigarettes to prevent himself from becoming aggressive, when he had stolen his father's guns he had told him (his father) that he was going to wrap them in towels to pretend that they were laundry in order to hide their theft, he had made threats to his father which were designed to get the guns which was what he wanted and he had informed on Mr Stoodley to Ms Phillips and to Next Step. Dr Brett said that those actions indicated a person who had a very clear thought process and an ability to make plans to achieve his aims. He said that it was evidence that the accused had thought ahead and it was evidence against impulsive behaviour. Dr Brett said that impulsive behaviour could be consistent with planning but that he thought that the more planning there was the less likely it was that it was impulsive behaviour (ts 933). Of course, I am not concerned with whether the accused acted impulsively but with whether he could not control his impulse to act.

458 Dr Brett thinks that the accused's conversation on the afternoon of 24 August 2011 with another resident at Mr SutherlandMcCourt's block of units about mundane matters such as gardening points away from a diagnosis of hypomania at that time (ts 935).

459 As to the accused's belief that Mr Stoodley had informed on him to the police about the incident at his father's home, Dr Brett said, selfevidently, if that was true it would not be a delusion. In any event, his belief in that regard could be explained by his extreme anger with Mr Stoodley. Dr Brett said that the accused did not like Mr Stoodley and so he was more likely to attribute the bad thing which had happened to him to Mr Stoodley (ts 937). Dr Brett also acknowledges that the accused's insistence that Mr Stoodley had informed on him to the police could have been a deliberate lie told by the accused to make Mr SutherlandMcCourt and others think badly of Mr Stoodley.

460 Dr Brett was referred to Mr SutherlandMcCourt's evidence about the conversations that he had with the accused on 24 August 2011 about whether or not Mr Stoodley had informed on him to the police about the incident at his father's home. Dr Brett agrees that the accused may have had a fixed belief that Mr Stoodley had done that (ts 998).

461 Dr Brett agrees that the accused's conduct in informing Next Step of the diversion of Mr SutherlandMcCourt's methadone to Mr Stoodley was a prosocial rather than antisocial act, in that someone with ASPD may go and beat up Mr Stoodley as an alternative (ts 1,002).

462 This is a twoedged sword for the accused in that whilst it showed that he was acting in what some might think was a prosocial manner, his actions showed his antagonism towards Mr Stoodley and his ability to control it. It may also be a piece of evidence from which an inference can be drawn that the accused would have a motive, when his prosocial way of dealing with the matter was proved to be unsuccessful, to physically assault Mr Stoodley. Of course, physically assaulting Mr Stoodley is behaviour that fell a long way short of what the accused actually did to Mr Stoodley and Ms Barrett.

463 In summary, Dr Brett's view about the accused's conduct leading up to 25 August 2011 is that there was no dramatic change in the accused's mental state after he was prescribed DMVF and before he went into Next Step for methadone detoxification. He said that the dramatic change in his mental state took place after detoxification from methadone. Thus, his opinion is that it was the detoxification from methadone and some experiences whilst he was in Next Step that brought the accused's trauma symptoms to the fore (ts 928). Dr Brett is of the opinion that the accused's decompensated PTSD, his ASPD, his selfmedication with benzodiazepines, other drugs and alcohol and his personality structure explain the accused's subsequent presentation. He does not believe that the DMVF is pivotal to his presentation during this period. He said that other than the ASPD, those conditions could cause thought disorder and they could all cause mood dysregulation (ts 929). Dr Brett does not believe that the accused has or had bipolar disorder. Dr Brett is of the opinion that the couple of days in the police watch house where the accused was drug free and had been prescribed olanzapine would have reduced his arousal (ts 930).

464 Dr Brett agrees that the accused had a labile mood after he left Next Step and that around the period of 24 August 2011 it appeared to be getting worse (ts 1,003).

Observations on the accused's capacity to control his actions at the unit on 25 August 2011

465 Dr Brett thinks that the accused's comment to Ms Phillips that he could kill Mr Stoodley showed some malicious intent towards him. Although he acknowledges that as with the comment to Ms Eves, it was probably a turn of phrase, rather than expression of a plan to kill Mr Stoodley. However, Dr Brett also thinks that the accused's expressions of animosity towards the victims prior to the fatal incident indicates that he was angry at them and that anger gave him some motivation to act as he did. The fact that Mr SutherlandMcCourt woke in the middle of the night and heard the accused apparently having an amicable conversation with the deceased is not evidence that the accused was unwell or that there was any particular problem which Mr SutherlandMcCourt was concerned about. Dr Brett acknowledges that mood can fluctuate quite rapidly and although there was a lot of evidence of mood lability in the accused, he does not think that it was in the psychotic range (ts 934). Dr Brett does not think that there is evidence to support the opinion that the accused was ever deprived of the capacity to control his actions (ts 935).

466 Dr Brett is also of the opinion that the accused's actions immediately after perpetrating the violence on Mr Stoodley and Ms Barrett when he was still in the unit, and his comments to Mr SutherlandMcCourt at that time, show that the accused was antagonistic towards the victims. He said that the accused exhibited some very clear planning immediately following the killings suggest to him that the accused was thinking quite clearly about how to cover up the killings, those matters suggest to Dr Brett someone who had the capacity to control his actions and that he was planning what he was going to do next (ts 941).

467 Dr Brett does not think that Mr SutherlandMcCourt yelling at the accused in the unit would enable a floridly unwell person, who was deprived of his capacity to control his actions to return to reality. Further, Dr Brett thinks that if Mr SutherlandMcCourt's comments had brought the accused back to reality, it is odd that the accused was then able to immediately start trying to cover up the killings, and to concoct a story so as to exculpate himself (ts 941). Dr Brett was of the view that if the accused was unable to control his actions during the fatal incident and was then brought back to reality very soon afterwards, he would be extremely remorseful, upset and distressed. Dr Brett concludes that the accused's behaviour in the unit immediately after the attack is not consistent with the accused being floridly unwell (ts 942). Neither does Dr Brett believe that Ms Millen's direction to the accused to sit down, even though expressed in strong language, would have been enough to enable the accused to regain control of his actions. He gave the example of patients who were floridly unwell in hospital being unable to be controlled despite the best efforts of experienced mental health nurses.

468 Dr Brett agrees that if, on the morning of 25 August 2011, the accused had a number of burn marks on his right hand which were not seen on the morning of 24 August 2011 (which appears to be the case), they show that the accused had needed to regulate himself by burning his hands with cigarettes in between those two times (ts 1,001). He said from this it could be inferred that the accused had been aroused and upset and the way he had managed that was by selfharming, as he had done previously. He does not accept that the burns are evidence of uncontrolled rage.

469 Dr Brett agrees that there was evidence of lability in the accused's mood between his arrest on the morning of 25 August 2011 and when the first interview commenced (ts 1,007). However, Dr Brett is not of the opinion that either his labile mood or his behaviour, in general, was evidence of hypomania. Neither does he agree that the accused's thought disorder was worsening up until 25 August 2011. Rather, he says that the key for him is the deterioration in the accused's presentation after detoxification from methadone. He says that at that time the accused's traumatic memories became too much and they came from the back of his head, where they were hidden as a consequence of the methadone, to the fore, becoming a particular focus for him. He agrees that the accused's focus shifted sometime after 22 August 2011 to Mr Stoodley (ts 1,009).

470 Dr Brett agrees that the answer to the question as to whether the accused had the capacity to control himself at the time he fatally stabbed Mr Stoodley and Ms Barrett is a matter of degree (ts 1,011).

471 As to the large number of stab wounds and injuries on the deceased, Dr Brett gave evidence that whilst the number of wounds was evidence of frenzy, he does not think that the frenzied nature of the attacks supports a conclusion that the accused did not have the capacity to control his actions. He said that it was just evidence of frenzy (ts 1,011).

472 In relation to Dr Tanney's opinion that there has to be a trigger before the accused could have lost the capacity to control his actions, Dr Brett said that triggers were usually associated with PTSD and that the accused was able to describe to him his triggers which were being called 'dumb', people using heroin around him, and child sex abuse. He said that if a PTSD sufferer experienced a trigger, it could result in them reexperiencing the initial trauma and becoming aroused and upset. He said that from a medicolegal perspective, there had been criteria which had been laid out in relation to Vietnam veterans who had perpetrated violence when suffering from PTSD. He said that one of the criteria was that the victims were usually randomly selected. Dr Brett thinks that when there is evidence of motive or planning against a particular victim, that evidence counts against PTSD and triggers being the cause of the violence (ts 939). Dr Brett is of the opinion that there is a significant parallel between the accused's earlier behaviour described in the 2002 report on the VOTP and the accused's conduct on the morning of 25 August 2011.

Observations on the accused's capacity to control his actions and events on 25 August 2011 after leaving the unit

473 Dr Brett is of the view that the accused's actions after leaving Mr SutherlandMcCourt's unit are consistent with an acute stress reaction from what he had just done. He said that the symptoms of an acute stress reaction include motiveless behaviour, purposeless overactivity, despair, hopelessness and some disorientation. He agrees that the accused would be trying to make sense of what had happened and he thinks that it is consistent that he would be wandering around Perth in a state of despair. He does not believe that his conduct indicated a lack of capacity to control his actions. He does not think that such an acute stress reaction would precipitate hypomania. However, it could cause a release of adrenaline which would cause someone to become physically active and fidgety, talk faster and sweat.

474 Dr Brett's opinion is that the accused's presentation at Ms Millen's home is similarly consistent with an acute stress reaction. He thinks that going to Ms Millen's was equivalent to going to 'a safe house'. However, his explanations of the events to Mr Dunn and to the first police at the house were an attempt to cover up and to fabricate a story which would exculpate him.

475 Dr Brett does not accept that the accused was thought disordered at all or thought disordered as a result of hypomania and PTSD because he thinks that there was a purpose in what the accused said at the house. Dr Brett does not think that the fact that the accused spoke a lot about his childhood sexual abuse at that time detracts from his opinion. He said that the accused had pinpointed his father and the perpetrator of the childhood sexual abuse as targets for his anger and arousal. He had then incorporated Mr Stoodley into that anger and arousal because he believed that Mr Stoodley had informed on him to the police about the incident with his father. He said that the accused had all these things going through his head and he was trying to make sense of the situation. However, the issue that was still in the front of his head was his childhood abuse.

476 Dr Brett thinks that the accused's request to speak to Mr Munnee arose out of the accused's belief that he would have a fairer hearing from Inspector Munnee than from other police. In this way he was negotiating to get the investigation on his own terms (ts 946). In Dr Brett's view, this is not consistent with hypomania, but it is consistent with someone who was thinking quite clearly.

477 In respect of the interview with Inspector Munnee, Dr Brett notes that although the accused was aroused, angry and slightly grandiose, he was also in control of the interview. He portrayed himself as a victim, tried to obtain information from Inspector Munnee and attempted to manipulate the interview to his advantage. Dr Brett is of the opinion that the accused's ability to maintain a consistently false story to the police is something that was easy for him to do because of his ASPD, but would have been much harder to do if he was hypomanic or manic (ts 953).

478 In respect of the accused's latter story to the police which implicated Mr SutherlandMcCourt, Dr Brett is of the view that under stress the accused reverted to his primitive coping mechanism, which is to look after himself. He says that that is a key feature of ASPD.

479 Dr Brett noticed that during the course of the police interviews, the accused was able to calm down without medication even when he became aroused (ts 955), he was able to identify his feelings and could articulate what he could do to control them. Dr Brett is of the view that that is material that evidences the accused's ability to control his actions, generally.

Observations on accused's capacity to control his actions after 25 August 2011

480 In relation to the accused's management whilst in custody after 25 August 2011, Dr Brett thinks that it is significant that the accused was seen by two psychiatrists in the prison and neither opined that medication had induced a hypomanic episode in the accused. He also thinks it is relevant that the accused was continued on DMVF whilst in prison without evidence of hypomania. He also draws the conclusion from the medical records that the accused became calmer after he was resumed on methadone (ts 1,016).

481 Dr Brett does not believe that the accused was deprived of the capacity to form an intention to kill (ts 957).

Was the accused's mind disordered by intoxication caused without intention on his part by drugs?

482 The accused's case is that for the purpose of the Criminal Code s 28(1) at the time of the killings his mind was disordered by intoxication caused without intention on his part by a drug, DMVF.

483 It is not in dispute, and I accept, that if the accused's mind was disordered by intoxication with DMVF at the time of the killings the intoxication was caused without intention on his part.

484 Thus, the question for me is whether the accused has satisfied me on the balance of probabilities that at the time of the killings his mind was disordered by intoxication by DMVF?

485 I accept that the accused was taking DMVF around the time of the killings at a therapeutic or somewhat less than therapeutic dose, it having been prescribed to him by Dr Connor.

486 However, I am not satisfied, on the balance of probabilities, that at the time of the killings the accused's mind was disordered by intoxication by DMVF. The reasons I have come to this conclusion are as follows:

(1) DMVF is generally well tolerated by patients and there are usually no significant ill effects from it;

(2) hypomania and mania have been reported as potential side effects of DMVF but the incidence of such side effects is somewhere between 0.1% and 0.02%. Thus, they are quite unusual or rare;

(3) there is no credible evidence that the accused has had a similar adverse reaction to any other antidepressant drug he has taken;

(4) the accused's refusal of dothiepin after taking it for three weeks in 1998 and his complaint of becoming 'aggro' after taking two doses of it in 2001 is not credible evidence of previous adverse reaction because dothiepin is not an SNRI, the accused's refusal to take the drug in 1998 tells me nothing about why he refused to take it, dothiepin is not an SNRI and Professor Joyce is of the opinion that the accused's complaint in 2001, after two doses is very unlikely to be linked to the drug's action on depression;

(5) the incidence of hypomania or mania in patients with DMVF is not so high that Professor Joyce could be sure that DMVF had caused hypomania or mania rather than that being the history of the illness in that patient;

(6) the accused has other conditions which could explain his feelings and behaviour such as decompensated PTSD, ASPD and withdrawal from methadone in conjunction with abuse of alcohol, cannabis and diazepam;

(7) there is some evidence that after the accused was prescribed DMVF in April 2011 he had an elevated mood, but there are other explanations for this other than an adverse reaction to the DMVF. In addition to those mentioned above, there is the fact that the accused had been depressed and may well have interpreted his mood after his depression was treated as being very good when in fact it was quite normal. Further, the accused's selfreport to Dr Connor was that he felt better on DMVF and that it helped him;

(8) prior to complete detoxification from methadone at the beginning of August 2011, the accused had no symptoms of dysphoric hypomania or mania which are the adverse reaction and the disorder by intoxication which the accused says was caused by DMVF;

(9) prior to going on to methadone in 2004, the accused had a history which included aggression against people he perceived as bullying or taking advantage of himself or others whom he sought to protect;

(10) the accused also had chronic symptoms of anxiety, agitation, irritability, insomnia and low mood which were well managed on a high dose of methadone but which started to reemerge as his dose of methadone decreased;

(11) those close to the accused noted that he was angry, agitated, irritable and jittery after he discharged himself from Next Step after complete detoxification with methadone but not before that when he was on DMVF and a very low dose of methadone (for example, Ms Moore ts 142). This is so, even though there is no evidence that the accused was given DMVF in Next Step;

(12) the accused's behaviour when at Ms Millen's, when being interviewed by the police and when he was first remanded in custody, would have been influenced by the very stressful fatal incident he had been involved in. The possibility that it was a result of an acute stress reaction coupled with conditions other than any to do with DMVF cannot be discounted;

(13) the accused's hypomanic presentation resolved quickly after he was remanded in custody and prior to him ceasing to use DMVF. This may have been due to the accused taking olanzapine but it is still relevant that he remained on DMVF and did not have the alleged adverse side effects;

(14) within the first two months after the fatal incident the accused was seen by a number of mental health nurses, an experienced medical practitioner and two psychiatrists. None of them noted any mania, that is, a hypomanic presentation and a thought disorder. Some of them noted a hypomanic presentation or described symptoms consistent with one, but only one queried whether the accused's elevated mood could be due to the use of DMVF and this nurse also listed a number of other possible causes of the accused's behaviour;

(15) although the accused ceased taking DMVF, started taking fluvoxamine and recommenced methadone at around the same time in March 2012, it is my view that it was the recommencement of methadone which produced the most significant improvement in the accused's mood. There was no significant improvement in his mood between him ceasing DMVF on 12 March 2012 and recommencing methadone on or after 31 March 2012. If the accused was having an adverse reaction to DMVF, I would have expected to see a noticeable improvement in his mood in this period even though he was taking olanzapine as well; and

(16) Dr Tanney relied on the accused having racing thoughts as being an indication of hypomania. He interpreted the accused's comment to Dr Connor on 15 June 2011 that he had noticed that his head was starting to go again as evidence of racing thoughts. I am not satisfied that it was a report of racing thoughts as opposed to a report of decompensating PTSD or the constellation of symptoms which Dr Connor said he suffered a lot of the time.

487 I have not come to this conclusion based on my assessment of the credibility of Dr Tanney as opposed to Dr Brett. However, there are aspects of Dr Tanney's evidence which have caused me to place less weight it. One of the most significant concerns I have about his evidence is his failure to refer to the accused's ASPD until it was raised in crossexamination. Secondly, Dr Tanney's evidence as to whether the accused was suffering from hypomania or mania at the time of the killings and whether hypomania could have caused the accused to lose the capacity to control his actions was inconsistent and confusing.

488 As against this, Dr Brett relies, to some extent, on a view that gross intoxication with benzodiazepines could cause some of the accused's symptoms. I do not accept this opinion because it is contradicted by Professor Joyce. However, I have disregarded that part of Dr Brett's opinion and I am still satisfied that the finding that I have reached on this issue is supported by the opinion of Professor Joyce, the reliable evidence of Dr Brett and Dr Tanney and the inferences to be drawn from the proven facts.

489 Having concluded that the accused's mind was not disordered by intoxication by DMVF, the accused does not meet the criteria in the Criminal Code s 28(1).

Was the accused in a state of mental impairment at the time of the killings?

490 The parties are in agreement that at the time of the killings the accused was suffering from decompensated PTSD. Whilst it is a matter of law for me to decide whether decompensated PTSD is a 'mental illness' as that term is defined in the Criminal Code, both parties submit that I should so find.

491 Both Dr Tanney and Dr Brett said that PTSD was an underlying pathological infirmity of the mind. Dr Tanney expressed a reservation about including it within the statutory definition of 'mental illness' because he said that it was a condition that resulted from the reaction of a healthy mind to extraordinary stimuli. Dr Brett did not have such a concern because he said that the accused's PTSD was of such a longstanding nature. The State says that the reference in the statutory definition to 'extraordinary stimuli' appears to have the concept of recency attached to it and therefore longstanding PTSD is not excluded by the qualification within the statutory definition.

492 I am satisfied that decompensated, longstanding PTSD constitutes a 'mental illness' for the purpose of the Criminal Code s 1. I am satisfied that the accused was suffering from decompensated longstanding PTSD at the time he killed Mr Stoodley and Ms Barrett. Thus, I am satisfied that for the purpose of the Criminal Code s 27 the accused was in 'a state of mental impairment' at the time of the killings.

493 I am also satisfied that the accused had ASPD at the time of the killings. There is an issue between the parties as to whether ASPD is a 'mental illness' for the purpose of the Criminal Code s 1.

494 Dr Tanney said that it is 'a mental illness' because it is an underlying pathological infirmity of the mind which is permanent and it is not a condition which results from the reaction of a healthy mind to extraordinary stimuli. Dr Brett acknowledges that it seems to fall within the definition of mental illness but he said that most mental health practitioners would not regard ASPD as a mental illness because it was part of a person's personality development that was not, at this time, amenable to treatment.

495 Given that I have determined that decompensated, longstanding PTSD is a mental illness and that the accused was suffering from it at the time of the killings, it is unnecessary for me to make a determination as to whether ASPD is also a mental illness. In this respect, the case is similar to Hodges (1985) 19 A Crim R 129 where the trial judge refused to leave ASPD to the jury as a disease of the mind or a natural mental infirmity which could give rise to a defence of insanity. However, he left the defence of insanity to the jury because there was evidence that the accused had another different disease of the mind. When the trial judge directed the jury he told it that they could consider the accused's ASPD as one of a number of factors relevant to the question of insanity. The same would be the situation here. That is, even if I decided that ASPD is not by itself a mental illness it would still be relevant to a consideration of whether the accused's PTSD, against the background of his ASPD, deprived him of the capacity to control his actions.

496 However, for the sake of completion, I will consider whether ASPD is, at law, on the basis of the evidence in this case, a mental illness.

497 In Hodges, the Court of Criminal Appeal determined that the trial judge was correct, on the basis of the evidence presented in that case, to direct the jury that ASPD was not a state of mental disease or natural mental infirmity within the meaning of those words as they were then contained in the Criminal Code s 27. Although s 27 has been amended so that 'mental impairment' has been substituted for the phrase 'a state of mental disease or natural mental infirmity' and the Criminal Code s 1 now contains a definition of mental impairment which includes 'mental illness', also a defined term, Hodges remains a helpful authority. However, my obligation is to determine whether ASPD falls within the definition of 'mental illness' in the Criminal Code s 1, regardless of whether it may or may not have fallen within the definition of the relevant statutory terms when Hodges was decided.

498 In Hodges, the Court of Criminal Appeal said that the psychiatric and psychological evidence in that case established that by reason of ASPD, Hodges was an impulsive man who lacked selfcontrol. The Chief Justice said that that was quite a different thing from mental disease or natural mental infirmity within the meaning of the Criminal Code s 27. Wallace J noted that the expert evidence included Dr Lord's opinion that it could be argued that ASPD was based upon a defect in development in the same way, for example, that an individual may be intellectually retarded because their intellectual faculties were not properly developed. Wallace J, however, concluded that the accused had a defect in his personality, but not a disease or disorder. Smith J said that Hodges' ASPD was said to result from a condition of arrested or retarded development of mind attributable to his deprived upbringing and the disorder was said to give rise to poor impulse control. In his Honour's view, none of the medical witnesses suggested that the appellant's disorder was a mental disease or that it arose from natural mental infirmity.

499 The Western Australian Law Reform Commission considered this issue in 1991 prior to the amendment to the Criminal Code s 27 and the insertion of the terms 'mental impairment' and 'mental illness'.

500 The Commission recommended that the phrase 'a state of mental disease or natural mental infirmity', be replaced with 'abnormality of mind (from mental illness or intellectual disability)'. It said that the change in terminology was not intended to affect the scope of s 27 as defined by the existing body of case law. The change was recommended because the existing phraseology was outmoded and unclear: Law Reform Commission of Western Australia, The Criminal Process and Persons Suffering from Mental Disorder, Final Report (August 1991) 2.12.

501 The Commission also considered the status of ASPD under s 27. After referring to Hodges, the Commission said:

The Commission recommends no change to the existing law. It is inconsistent with fundamental notions of criminal responsibility to excuse a person's acts or omissions arising from a personality disorder evidenced merely by a lack of self control or indifference to standards of morality (2.13).

502 The Commission relied in part for that conclusion on a report from the American Psychiatric Association Statement on the Insanity Defense (1983) 140 The American Journal of Psychiatry 681, 685 where it was said:

It was assumed by the law that such disorders could impair behaviour control. But this is generally not the experience of psychiatry. Allowing insanity acquittals in cases involving persons who manifest primarily 'personality disorders' such as antisocial personality disorder (sociopathy) does not accord with modern psychiatric knowledge or psychiatric beliefs concerning the extent to which such persons do have control over their behaviour. Persons with antisocial personality disorders should, at least for heuristic reasons, be held accountable for their behaviour.

503 The Commission's conclusion that persons with ASPD should be held accountable for their behaviour relies on the opinion that persons with ASPD do have the capacity to control their behaviour but lack selfcontrol or are indifferent to standards of morality. Under the Criminal Code s 27, a mere finding that ASPD is a 'mental illness' does not mean that a person with ASPD is not held accountable under the criminal law for their behaviour. In order for that conclusion to be reached, there would have to be a further finding that the ASPD deprived them of one of the capacities referred to in s 27. As the evidence from Dr Tanney and Dr Brett makes clear, a person with ASPD does not lack, relevant to this case, the capacity to control their actions.

504 Given the broad definition of mental illness in the Criminal Code s 1 and the evidence of Dr Tanney and Dr Brett to the effect that people with ASPD probably have changes in their brains affecting their behaviour, I am satisfied that ASPD, if it is accompanied by changes in the brain, is a 'mental illness' for the purpose of the Criminal Code s 1. I do not think that the evidence of Dr Tanney and Dr Brett on the causes of ASPD allow me to take the view that was taken in Hodges or by the Law Reform Commission that ASPD is merely a behavioural problem evidenced by a lack of selfcontrol or indifference to standards of morality. Rather, the psychiatrists' evidence is that it is probable that ASPD is caused by abnormal changes in the brain that are beyond a variant of normal.

505 The issue then is whether the accused's ASPD is accompanied by abnormal changes in his brain. I do not know but, given that the psychiatrists say that it is probable that ASPD, generally, is accompanied by changes in the brain, I will assume, in the accused's favour, that he does have such changes and, therefore, his ASPD is a mental illness.

Has the accused proved on the balance of probabilities that he was in such a state of mental impairment as to deprive him of capacity to control his actions at the time of the killings?

506 The parties agree that the accused was mentally impaired at the time of the killings and that his capacity to control his actions was impaired. The difference between the parties is that the accused says that he was deprived of the capacity to control his actions whereas the State says that his capacity to control his actions was only impaired.

507 The psychiatrists agree that whether the accused was in such a state of mental impairment as to deprive him of the capacity to control his actions at the time he killed Mr Stoodley and Ms Barrett is a matter of degree. Although in some cases the nature of the accused's mental illness will be such that the medical experts will agree that there is a black or white answer to whether the mental illness deprived the accused of the capacity to control his actions, this is not such a case. There is room for different expert opinions about the accused's psychiatric diagnosis and his capacity to control his actions. Further, I found Dr Tanney's evidence as to whether the accused was suffering from hypomania or mania at the time of the killings and whether, if it was only hypomania, this would be sufficient to deprive the accused of the capacity to control his actions to be both confusing and inconsistent. Therefore, I have decided to determine whether the accused's state of mental impairment deprived him of the capacity to control his actions by primarily considering the inferences that should be drawn from the totality of the accused's conduct, words and the surrounding circumstances, rather than by concentrating on the accused's psychiatric diagnosis. It seems that no matter what the causes of the accused's conduct, he was in a state of mental impairment and if he had lost the capacity to control his actions, I would inevitably have to conclude that his state of mental impairment was a significant cause of that deprivation of capacity. In saying this, I do not intend to ignore the psychiatric evidence as to what the accused was suffering from at the time. It remains a very relevant consideration.

508 There are a number of aspects of the accused's conduct which I must consider in order to answer this question. Those aspects include the duration of the fatal incident, the nature of the accused's actions during the fatal incident and their complexity, the extent to which his conduct was targeted as opposed to being random or disorganised, whether there was a rational motive for the fatal incident, whether there was a reason for the fatal incident, the accused's response to his actions, what inferences can be drawn about the accused's feelings or emotions during the attack and the accused's recollection of and any explanation for his actions and feelings. I must also consider his behaviour and thinking in the days before and after the fatal incident.

509 Given the number of wounds inflicted on Mr Stoodley and Ms Barrett, the attack must have taken some time for the accused to complete. I do not know how long it lasted but I think that it must have taken a number of minutes before Mr SutherlandMcCourt came out of the bedroom and saw the end of it. It is not a situation where the accused lashed out quickly because he was unable to control an impulse and in that moment inflicted the fatal wounds. The fact that the fatal attack took some time to complete tends to suggest either that the accused deliberately decided to inflict the fatal wounds or even if he did not have the initial capacity to control his actions, there was time during the incident for him to regain that control and having done so he continued to fatally attack Mr Stoodley and Ms Barrett.

510 The fatal attack required the accused to disable two persons, without allowing one of them with the chance to escape whilst he attacked the other. It required him to wield the knife in a deliberate and forceful manner on repeated occasions. Although the unit was small, the scene indicates that there was considerable movement of the victims and the accused throughout the living area and kitchen during the course of the assault. This movement indicates persistence and determination on behalf of the accused. This militates against a view that he was acting without control.

511 The accused's actions were targeted at Mr Stoodley and Ms Barrett. When Mr SutherlandMcCourt came out of the bedroom the accused displayed no aggression towards him. Ms Millen and Mr Dunn did not feel threatened by the accused.

512 The targeting of Mr Stoodley and Ms Barrett is consistent with the accused's animosity towards them. He had various reasons to feel this animus towards them. Some of those reasons appear rational and one appears to be irrational. He disliked Mr Stoodley and Ms Barrett because they were heroin users and they had tried to persuade him into using heroin again. He believed that one or both of them had stolen money from him, he believed that Mr Stoodley had diverted Mr SutherlandMcCourt's methadone, he believed that Mr Stoodley and Ms Barrett were taking advantage of Mr SutherlandMcCourt, a person of whom he felt protective, and he was, in all likelihood, jealous about Mr SutherlandMcCourt's friendship with Mr Stoodley. He believed that Mr Stoodley had informed on him to the police. It is perhaps only this last consideration which was without any foundation.

513 Given the accused's mood on 24 August 2011, it would not have taken much of a precipitant for the accused's anger towards Mr Stoodley and Ms Barrett to boil over into targeted violence towards them. This evidence of motive is evidence from which I can infer that the accused attacked the deceased deliberately and with the capacity to control his actions. On the other hand, the severity and ferocity of his attack is a factor which on one view may tend towards a finding that the accused was not in control of his actions at the time he fatally assaulted Mr Stoodley and Ms Barrett. However, as Dr Brett said, this ferocity does not necessarily indicate lack of capacity to control actions as opposed to a failure to resist the impulse to kill.

514 Immediately after the fatal incident the accused demonstrated an ability to think clearly, albeit selfishly, about what had happened and what he should do to avoid implicating himself in the deaths of Mr Stoodley and Ms Barrett. He was then able to put those thoughts immediately into effect by wiping the knife and placing it in the hand of Mr Stoodley. Further, he was able to direct Mr SutherlandMcCourt in terms of what Mr SutherlandMcCourt should be thinking and saying about the event. In my view, this is strong evidence to show that the accused had control over his actions at the time he killed Mr Stoodley and Ms Barrett and was not overwhelmed by his feelings at the time to such an extent that he could not control his actions.

515 I do not accept Dr Tanney's opinion that Mr SutherlandMcCourt's appearance at the bedroom door and his questions to the accused would be sufficient to, in an instant, change the accused from someone who had lost the capacity to control their actions to someone who was not only capable of controlling their actions, but who thought and acted in a clear and directed fashion without any signs of bewilderment or confusion as to what had just occurred. I accept Dr Brett's opinion in this regard.

516 The accused's presence of mind to take his satchel and leave the unit, to make his way on foot to the train station, to hide from the police, to make his way to Ms Millen's home and to attempt to explain what had occurred at the unit is further evidence that the accused did not lack the capacity to control his actions during the fatal assaults. I do not accept Dr Tanney's opinion that at times during this period the accused was not able to control his actions because he was back experiencing his childhood trauma. He may well have had flashbacks to that trauma and that may have been part of the reason why he went to Ms Millen's home. However, that is consistent with his decompensated PTSD and not indicative of a lack of capacity to control his actions.

517 I also take into account the accused's behaviour during his interviews with Inspector Munnee and the other police officers. Although the accused's behaviour is at times abnormal and he shows, at times, evidence of mood lability, agitation, irritability, overfamiliarity and aggression, he is at all times able to control his actions and what he says. On numerous occasions during the interviews, he displayed dishonest and manipulative behaviour which was to try and engage with the police in a way which was most advantageous to him. He fabricated a story to the police which was, in many respects, consistent with the scene at Mr SutherlandMcCourt's unit and with his fatal attack on Mr Stoodley and Ms Barrett. This indicates that at that time he had a memory of what had occurred at the unit. Instead of showing confusion and bewilderment about his involvement in the fatal incident, he was able to fabricate a fairly rational and consistent explanation for the scene. This indicates that the accused was sufficiently aware of what he had done at the unit, that he knew he had to give an explanation for it which did not implicate him in the deaths of Mr Stoodley and Ms Barrett or, alternatively, once he knew that he was implicated, give an explanation which minimised his involvement in the deaths.

518 If the accused was suffering from mania at the time of the fatal incident, it would tend to prove that he did not have the capacity to control his actions at that time. Dysphoric mania, like dysphoric hypomania, is signified by an elevated mood that is accompanied by agitation, irritability, arousal, a lack of need for sleep and aggression. Racing thoughts can be a symptom of mania but there are other causes for racing thoughts. In order for mania to deprive a person of the capacity to control their actions, it must include a thought content disorder. Hypomania does not include a thought content disorder.

519 Dr Tanney distinguished between a thought content disorder and a thought processing disorder. As I have said, if the accused had a thought content disorder at the time of the killings, this would be evidence which supports a finding that he did not have the capacity to control his actions at that time. Dr Tanney's final opinion also appeared to be that hypomania, accompanied by a thought processing disorder, may have caused the accused to lose the capacity to control his actions.

520 There is a possibility that the accused had a thought content disorder during his conversation with Mr Horstead some days prior to the fatal incident. However, there is no evidence of that kind of thought disorder at the time of the fatal incident. Further, there is a considerable amount of evidence that the accused did not have a thought content disorder immediately before and after the fatal incident. For example:

(1) on 9 August 2011, Dr Connor noted symptoms consistent with hypomania, but said that the accused had no formal thought disorder, psychosis or obvious mania;

(2) on 16 August 2011, Dr Connor suspected that the accused had bipolar disorder unmasked of opiates but did not note any thought disorder;

(3) on 20 August 2011, the accused was examined by a CERT mental health nurse and noted that there was no evidence of formal thought disorder, delusions, overvalued ideas, obsessions, phobias or perceptual disturbance;

(4) on 22 August 2011 when the accused appeared before the magistrate to apply for bail, there is no evidence of a thought content disorder or mania. There is a possibility of some grandiosity, but it is of a minor and temporary nature;

(5) on 24 August 2011, the accused was seen by Ms Phillips and whilst the accused had signs consistent with hypomania, there was no evidence of a thought content disorder or psychosis;

(6) on the evening of 24 August 2011, the accused spoke to Mr SutherlandMcCourt and Mr Burns. Apart from his preoccupation with wanting Mr Stoodley and Ms Barrett to leave the unit and fixed belief that Mr Stoodley had informed on him to the police, there was no evidence of formal thought disorder;

(7) immediately after the fatal incident when the accused spoke to Mr SutherlandMcCourt, he displayed no evidence of a thought content disorder;

(8) later that morning when the accused spoke to Ms Millen and Mr Dunn he did not display evidence of a thought content disorder;

(9) during the long interviews with the police, the accused did not display any thought content disorder. At one point he referred to a belief in the power of mother earth to overcome satan but this was only one comment and did not seem to influence his thoughts or actions to any significant extent;

(10) on 26 August 2011, the accused was seen by a nurse at Hakea Prison who reported that he had an inappropriate reaction to the allegations against him but otherwise did not note any formal thought disorder;

(11) on 27 August 2011, the accused was seen by a mental health nurse who noted symptoms consistent with hypomania but did not describe any formal thought disorder;

(12) on 29 August 2011, the accused was seen by Dr Hames, an experienced medical practitioner, who noted that the accused had a bizarre presentation with some strange overvalued ideas but that he did not present with any form of mental illness. He was of the opinion that the accused's hypomanic presentation was likely an acute stress reaction;

(13) on the same date, a mental health nurse examined the accused and noted that he denied any perceptual disturbances and that there was no evidence of formal thought disorder. It was recorded that the accused had some bizarre and strange ideas, but these were not beyond rational thought processes, the accused did not appear to be delusional and his beliefs were of a more antisocial nature; and

(14) on 1 September 2011, the accused saw Dr Febbo, a forensic psychiatrist, who detected no abnormality in the accused's mental state examination and said that there was no evidence during his interview to suggest pathological elevation of the accused's mood.

521 Further, for the reasons which I expressed when I summarised Dr Tanney's evidence, I am not persuaded that the accused was unable to control his behaviour at other times between his discharge from Next Step and 25 August 2011. There was an occasion on 16 August 2011 when he told Ms Phillips he could not control his violence but apart from that occasion he did not tell people that he was unable to control his behaviour. On the same date he told Dr Connor that he had severe anger management problems. He threatened violence to Mr and Mrs Eves but did not carry it out. Whilst the accused was behaving abnormally and there were signs that he was having difficulty controlling his anger, for example by burning his hands with cigarettes, I do not accept that at any time during that period the accused was unable to control his actions.

522 This is to be contrasted with my acceptance that the accused was finding it difficult to control his emotions, in particular his anger, and behaviour and was telling people that he was finding it difficult to control his anger and the violence that may follow it.

523 It is also very relevant, in my view, that there is no evidence that the accused has ever said that he lost control of his actions or did not have the capacity to control his actions on the morning of 25 August 2011. To the contrary, any account that he has given of the fatal incident on the morning of 25 August 2011 has been to the effect that the accused knew what was happening around him, decided to take certain actions and took those actions. Those accounts may be false but they do not indicate that the accused was overwhelmed by his feelings and did not have the capacity to control his actions. I have not drawn an inference against the accused because he does not remember the fatal incident. My comments are in respect to the fact that various accounts which he has given have not been to the effect that he lost control of his actions or did not have the capacity to control his actions on the morning of 25 August 2011.

524 There is evidence that after he discharged himself from Next Step, the accused had at times a thought processing disorder and a false belief. For example, this is evident in the way that the accused believed that Mr Stoodley had informed on him. Those thought disorders are insufficient to cause me to find, as opposed to raise the possibility, that the accused had hypomania. No matter what the cause of his presentation, even when considered in conjunction with all the evidence, including the accused's PTSD, his ASPD, and Mr Horstead's evidence, it is my opinion that the accused did not have a thought disorder of such intensity and pervasiveness that he was deprived of the capacity to control his actions on the morning of 25 August 2011. I am of the view that the accused may well have allowed himself to think the worst about Mr Stoodley because he hated him for other reasons. I also think that it was part of the accused's ASPD and his jealousy of the relationship between Mr SutherlandMcCourt and Mr Stoodley that he wanted Mr SutherlandMcCourt to think badly of Mr Stoodley. Thus, focusing on this alleged misbehaviour by Mr Stoodley during conversations with Mr SutherlandMcCourt would have suited the accused's ends.

525 In making these findings, I have taken into account that the accused was mentally impaired during this period and on the morning of 25 August 2011. Thus, I accept that he did not have the capacity to control his actions in the same way as someone without his mental impairment. Even taking his mental impairment and his reduced capacity to control his actions into account, I am of the opinion that he was not in such a state of mental impairment as to deprive him of the capacity to control his actions at the time of the killings.

526 I have also taken into account that the accused's mental impairments and other problems are sufficient to explain his hypomanic presentation and his other behaviour before, during and after the fatal incident. These mental impairments and problems include his ASPD, his decompensated PTSD, his intoxication with alcohol at various times after his release from Next Step and before 24 August 2011, his probable consumption of alcohol on the evening of 24 August 2011, his use of cannabis, his overuse of benzodiazepines and an acute stress reaction to the fatal incident.

527 The accused's aggression towards people to whom he was antagonistic due to his wish to protect someone close to him is consistent with a personality trait which was identified in the VOTP report from 2002. The accused's agitation, anxiety, irritability and insomnia were personal characteristics that had been noted over a lot of the accused's life. What was not so common was the elevated mood and the extremes of his behaviour. However, in my view, it cannot be ignored that the accused was in a situation which he had not encountered for a very long time. That is, his PTSD had been reactivated and it was obviously causing him considerable distress. The symptoms of his decompensated PTSD and ASPD were no longer masked by methadone or any other opiate use. His feelings and emotions were therefore completely exposed. Tragically, it seems that this resulted in the accused behaving on the morning of 25 August 2011 in an impulsive and exceedingly violent manner. Whilst his conduct was much more violent than that he had exhibited previously, the personal characteristics that led to the violence had been noted by the accused and authors of reports since the 1990s.

528 Dr Tanney said that there would have to be a trigger to cause the accused to lose the capacity to control his actions. Dr Tanney does not know what the trigger was and there is no direct evidence of any trigger. It would be speculation on my part to hypothesise about what the trigger could be. However, there is evidence that the accused had triggers which would make him angry. I have mentioned these already. I am not satisfied that in the past any of those triggers had resulted in the accused losing the capacity to control his actions. This makes it less likely that any such trigger would have deprived him of the capacity in the early hours of 25 August 2011.

529 For these reasons, I find that the accused has not proved, on the balance of probabilities, that he was in such a state of mental impairment when he killed Mr Stoodley or Ms Barrett as to deprive him of the capacity to control his actions.

Has the State proved beyond reasonable doubt that the accused had the capacity to form an intention to kill or to inflict a lifethreatening injury?

530 I rely on the uncontroverted evidence of Dr Tanney and Dr Brett to the effect that, if the accused had the capacity to control his actions, then he also had the capacity to form an intention to kill or to inflict a lifethreatening injury on Mr Stoodley and Ms Barrett. Even accepting that the accused had some alcohol and other drugs on the evening of 24 August 2011, he was not so intoxicated that he lacked the capacity to form a relevant intention.

Has the State proved beyond reasonable doubt that the accused intended to kill or inflict a lifethreatening injury?

531 The accused has not made any admissions of an intent to kill or to cause a lifethreatening injury to either of the deceased. Thus, it is a question for me as to whether I should draw an adverse inference against the accused that he had one of those intentions. It is necessary for me to find that such an inference is the only reasonable inference available before I can convict the accused of murder.

532 Given my earlier findings as to the manner in which the accused acted so as to kill each of the deceased, given the number and severity of the wounds which he inflicted on the deceased, given the locations of those wounds on the bodies of the deceased, given the dangerous nature of the weapon he used to inflict the wounds, given the animus between the accused and the deceased and given my finding that the accused, although mentally impaired, had the capacity to form an intention to kill or cause lifethreatening injury, I am satisfied beyond reasonable doubt that the State has proven that the accused intended to kill Mr Stoodley when he inflicted the fatal injuries on him and intended to kill Ms Barrett when he inflicted the fatal injuries on her. As with other findings I have made in relation to this matter, there is no justification for me distinguishing between what the accused did or intended to do to Mr Stoodley or Ms Barrett.

533 I have found that the accused intended to kill the deceased because the severity of the injuries he inflicted is not consistent with an intention only to cause lifethreatening injuries.

534 For the above reasons, I am satisfied beyond reasonable doubt that on 25 August 2011, at Maylands, the accused murdered Christopher Stoodley. I am further satisfied beyond reasonable doubt that on the same date and at the same place he murdered Jenni Kay Barrett.