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[2017] WASC 101
Supreme Court of WA
2017-04-10
Jenkins J
Original judgment source is linked above.
1 JENKINS J: The accused is charged on indictment that on or about 28 August 2015 at Doubleview he:
(1) made a threat to unlawfully kill Rochelle Bache;
(2) was armed with an offensive weapon, namely a knife, in circumstances likely to cause fear to Rochelle Bache;
(3) with intent unlawfully to kill, did an act of such a nature as to be likely to endanger the life of Tarmika Storme Herbert;
(4) with intent unlawfully to kill, did an act of such a nature as to be likely to endanger the life of Shaylee Maree Herbert; and
(5) with intent to harm, did an act as a result of which the life, health or safety of Daniel Ernest McMillan was, or was likely to be, endangered.
2 The accused applied for a trial by judge alone and on 16 March 2017, Hall J ordered that, pursuant to the Criminal Procedure Act 2004 (WA) s 118, he be tried by judge alone.
3 The accused's trial took place before me on 20 ‑ 24 March 2017. The accused pleaded not guilty on account of unsoundness of mind to each of the charges.
4 These are my reasons for finding that the accused is guilty of all charges on the indictment.
5 At the commencement of the trial, the accused made the following admissions pursuant to the Evidence Act 1906 (WA), s 32:
6 Thus, the issue which remains is whether the accused has established on the balance of probabilities that he is not criminally responsible for his admitted acts on account of unsoundness of mind? This issue requires me to determine each of the following matters:
(1) at the times the accused did the relevant acts was he mentally impaired?
(2) if the accused was mentally impaired did his mental impairment deprive him of a relevant capacity as provided for in the Criminal Code (WA) (the Code) s 27?
(3) if so, does the defence of insanity not apply because the accused intentionally caused himself to become intoxicated?
7 In relation to issue (2), the accused submits that he lacked the capacity to know that he ought not do the acts which, he has admitted, he did.
8 The State says that if I decide that the accused has not proved that he was not voluntarily intoxicated, the Code s 27 does not apply to him at all. It therefore submits that I should determine that issue first (issue (3)) and if it is determined in the State's favour, I need not consider the Code s 27. Theoretically, the State is correct but I have decided that I will consider the three issues in the above sequence, so as to ensure that I consider all relevant issues between the parties.
9 With the consent of the accused, the State read into evidence the statements of the following witnesses:
The State called Stephanie Leanne Bochorsky to give oral evidence.
10 The State also tendered the medical report of Dr Fiona Wood, a knife and photographs of the accused's home.
11 The accused elected not to give evidence personally. He called Dr Bryan Lawrence Tanney, a consultant forensic psychiatrist, in his defence. The accused tendered his hospital and prison medical records.
12 In rebuttal, the State called Dr Steven John Reuben Patchett, a consultant forensic psychiatrist, to give oral evidence. The written reports of both psychiatrists were tendered.
13 When counsel for the accused advised me that the accused elected not to give evidence, I queried whether the parties had agreed a history on which the doctors relied to form their opinions. I was advised by counsel for the State that whilst it objected to the psychiatrists giving opinions based on hearsay evidence, it was not sure which parts of their opinions were so based. The parties agreed that I would hear the psychiatric evidence and determine its admissibility and weight at the close of the evidence.
14 In relation to the lay witnesses, the evidence which was read into evidence is not in dispute. Neither is the evidence of Ms Bochorsky. In any event, I found her to be an impressive, reliable and credible witness. I digress to note that she acted with extreme bravery and her actions, in all likelihood, saved the lives of two young children. Daniel also acted courageously when confronting the accused.
Law relating to evidence of the accused's statements made out of court
15 There is an issue as to the admissibility and weight to be given to various statements made by the accused out of court about his then current and past symptoms and feelings.
16 These statements fall into three broad categories. First, there are accounts by the lay witnesses of their conversations with and observations of the accused. There was no objection to the receipt of this material and given that most of it forms part of res gestae it may be used by me to prove the truth of what the accused said and did. There are some statements made by the accused, such as his account to Antonella of the amount of cannabis and alcohol he usually consumed, which fall outside of that description and I do not place weight on those comments.
17 Secondly, there are the accused's hospital and prison medical records, which were tendered by the accused. The State did not object to me receiving those documents as a reliable record of the events and conversations recorded and the opinions of medical and nursing experts expressed in them. They are admissible pursuant to the Evidence Act s 79C. However, except to the extent that material is admissible pursuant to the exception to the hearsay rule discussed below, the State objects to the records of the accused's statements of his personal history and past feelings and symptoms being used to prove the truth of those statements.
18 The third category of evidence is the accused's history which he gave to Dr Tanney and Dr Patchett. The State objects to the accused's statements to the doctors of his personal history and past feelings and symptoms being used to prove the truth of those statements.
19 Given that the accused did not give evidence and so has not adopted what he told any other person as the truth, the evidence of what the accused said out of court cannot be used to prove the truth of what he said unless it is admissible as an exception to the hearsay rule.
20 There is an exception to the hearsay rule for statements made by a person about his bodily (including mental) feelings and symptoms contemporaneously to the time when his state of health is in question. The following statement of the exception in Wills on Evidence (3rd ed, 1938) 209 was approved in Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642:
Whenever there is an issue as to some person's state of health at a particular time, the statements of such person at that time or soon afterwards with regard to his bodily feelings and symptoms are admissible in evidence. This medium of proof does not appear, like most of those which are known as Declarations, to possess any special sanction of credibility; like declarations accompanying acts it would seem to have been admitted on the ground of necessity and convenience (647).
21 Thus, the accused's statements to medical professionals, whether they be treating doctors and nurses or the two psychiatric expert witnesses, as to his feelings and symptoms at the time he spoke are admissible to prove his feelings and symptoms at that time.
22 In Ramsay (648 ‑ 649), it was stated also that an expert medical witness may give evidence of a history given to him by a patient. The history given to the expert is admissible as part of the foundation of the expert's opinion. However, the history is not admissible to prove the 'past sensations, experiences and symptoms' of the patient. The patient must give the evidence if it is to be relied upon to prove the truth. The High Court said that if the patient does not confirm in evidence what he said to the medical expert out of court, 'the physician's opinion may have little or no value'.
23 The State's objection is upheld but I must still determine which of the accused's statements about his bodily feelings and symptoms during the evening of 28 August 2015 are admissible because they were said 'soon afterwards.'
24 The State submits that what the accused said up to and including 2 September 2015 would fall within the timeframe of 'soon afterwards'. The accused submits that as he was suffering from a psychosis, it would be fair to include what he said until soon after his psychosis resolved, which would take the timeframe out to October 2015. I do not believe that the law enables me to do that. Such an allowance would not avoid the possibility of concoction due to a growing realisation by the accused over the intervening period of the enormity of what he had done.
25 Thus the question for me is when is 'soon afterwards' the late evening of 28 August 2015? Contemporaneity appears to be the touchstone of admissibility of evidence on this basis. Consequently, anything said by the accused after his admission to Hakea on the afternoon of 29 August 2015, is inadmissible to prove his bodily feelings and symptoms on 28 August 2015.
26 The judgment in a trial by judge alone must include the principles of law that the judge has applied and the findings of fact on which the judge has relied: Criminal Procedure Act s 120(2).
27 The principles of law which I apply are as follows.
28 The accused is presumed to be innocent of any offence open on the indictment. Putting to one side the issues raised by his plea of not guilty on account of unsoundness of mind, the State has the onus of proving his guilt of each charge. For the State to discharge that burden, it is required to prove beyond reasonable doubt that the accused is guilty of whichever charge which I am considering. The State bears the onus of proving each element of an offence to that standard.
29 If it is necessary to draw inferences from the evidence, I may only draw an inference adverse to the accused in respect of issues on which the onus of proof is on the State if it is the only reasonable inference to draw from the evidence. If there is an alternative conclusion open within reason, I must not draw the inference necessary to prove the relevant element of guilt of an offence.
30 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 another charge. My verdicts do not have to be the same on each charge.
31 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.
32 Given that both parties agree that on 28 August 2015, the accused was suffering from a mental illness, I warn myself that it is dangerous to assess the accused's actions and test the accused's capacity to know that he ought not so act by the standards of people who do suffer from a mental illness.
33 The two psychiatric witnesses are experts. The written report of another expert, Dr Wood, was tendered by consent. 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 or if I conclude that the expert's opinion is unreliable. 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.
34 Neither party disputes the expertise of the opposing party's psychiatric expert witness. However, there are areas of disagreement about some facts on which the psychiatrists' opinions are based. There is also disagreement between the psychiatrists as to the conclusions which can be drawn from those facts.
35 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 and whether the expert has taken into account the facts which I have found were not proven.
36 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.
Elements of the offence of threat to kill (count 1)
37 Before I may find the accused guilty of threat to kill, I must be satisfied that the State has proved each of the following elements of the offence to the standard of beyond reasonable doubt:
(1) that the accused made a threat to Rochelle; and
(2) that the threat was to unlawfully kill Rochelle.
Elements of the offence of being armed with intent to cause fear (count 2)
38 Before I may find the accused guilty of being armed with intent to cause fear, I must be satisfied that the State has proved each of the following elements of the offence to the standard of beyond reasonable doubt:
(3) that the circumstances in which the accused was armed were likely to cause fear to Rochelle.
Elements of the offence of attempt to unlawfully kill (count 3)
39 Before I may find the accused guilty of attempt to unlawfully kill (count 3), I must be satisfied that the State has proved each of the following elements of the offence to the standard of beyond reasonable doubt:
(3) the setting of the fire was likely to endanger human life; and
(4) that at the time the accused set the fire, he intended to kill her.
Elements of the offence of attempt to unlawfully kill (count 4)
40 Before I may find the accused guilty of the offence of attempt to unlawfully kill (count 4), I must be satisfied that the State has proved each of the following elements of the offence to the standard of beyond reasonable doubt:
(1) that the accused poured an accelerant on the head and torso of Shaylee;
(2) that pouring an accelerant on the head and torso of Shaylee was unlawful;
(3) that pouring an accelerant on the head and torso of Shaylee was likely to endanger human life; and
(4) that at the time the accused poured the accelerant over the head and torso of Shaylee he intended to kill her.
Elements of the offence of doing an act causing danger (count 5)
41 Before I may find the accused guilty of the offence of doing an act to cause danger, I must be satisfied that the State has proved each of the following elements of the offence to the standard of beyond reasonable doubt:
(2) that at the time the accused attempted to stab Daniel he (the accused) intended to harm Daniel; and
(3) that attempting to stab Daniel was, or was likely to, endanger Daniel's life, health or safety.
42 The second and third elements of count 2 and 5 and the third and fourth elements of counts 3 and 4 fall to be determined only if the accused fails to satisfy me on the balance of probabilities of the insanity defence: Ward v The Queen [2000] WASCA 413; (2000) 118 A Crim R 78. In any event, the accused admits all of these elements.
43 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: the Code s 26. The accused has the burden of proving that he was not of sound mind at the time he did the acts which are alleged to constitute each offence. The accused must prove that he was not of sound mind on the balance of probabilities: R v Porter [1933] HCA 1; (1933) 55 CLR 182.
(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.
45 The phrase 'mental impairment' is defined in the 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 did the relevant acts.
[A]n 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.
47 An 'infirmity of the mind' is a weakness of the mind. 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. Thus, an underlying pathological infirmity of the mind is an underlying infirmity of the mind which is related to disease or an abnormal bodily condition.
48 The definition of 'mental illness' reflects some of the comments made by King CJ in Radford (1985) 20 A Crim R 388, 396 about the meaning of the expression 'disease of the mind' which is used in the common law of insanity. The then Chief Justice of the Supreme Court of South Australia said:
(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 illness 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 self‑control and impulsiveness'; 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'.
49 In R v Falconer [1990] HCA 49; (1990) 171 CLR 30, the High Court generally approved of King CJ's comments even in the context of the then Criminal Code provisions.
50 When Falconer was decided, the Code s 27 was differently worded. Section 27 was amended and the definition of mental impairment was inserted after Falconer was delivered. The subsequent amendments to the Code are consistent with King CJ's statement of principles in Radford, although the Code definition of 'mental impairment' is broader than that of 'disease of the mind' which was considered by King CJ. Nevertheless, acute intoxication with alcohol and/or drugs is not a 'mental impairment'.
51 What is a mental illness is a question of law for the judge. Whether or not the facts disclose a state of mental illness is a question for the decider of fact.
52 The accused says that his mental illness deprived him of the capacity to know that he ought not do the acts by which he is said to have committed each of these offences.
53 The phrase 'so as to deprive him ... of capacity to know that he ought not do the act', is generally considered to be equivalent to the common law's M'Naghten rules alternative, that the accused was labouring under such a defect of reason as 'that he did not know that he was doing what was wrong'.
54 The leading Western Australian authority on the meaning of this limb of s 27 is Evans v The State of Western Australia [2010] WASCA 34 in which the Court of Appeal applied common law principles. McLure P considered the common law principles and said that there is no suggestion of any material distinction between the common law and s 27 on this point. Relevantly, her Honour said:
The High Court in Stapleton elsewhere (367) identified the test as being whether at the time of the commission of the act the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act.
There is no suggestion of any material distinction between the common law and s 27 on this point. Thus the real issue for the jury in this case was whether the appellant had established on the balance of probabilities that at the time of the killing his mental impairment resulted in a complete incapacity to reason as to what is right or wrong according to ordinary standards. The term 'know' means 'understand', 'appreciate' or 'comprehend'. An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from understanding that he (or she) ought not do the act. Knowledge (short of understanding) that to kill is punishable by law does not prevent such a finding. Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct. Whether an act is right or wrong is determined by reference to an objective standard. The question is whether the appellant had a complete incapacity to reason as to what was, by that objective standard, right or wrong. In this case the appellant's subjective belief was relied upon by the experts to support the conclusion that he was in a psychotic state that prevented rational reasoning on right or wrong [30] ‑ [31].
55 Wheeler JA (Owen JA agreeing) also discussed the common law principles and then said:
The authority most directly on point in this context is Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358. In that case, having regard to the state of the evidence, it seems unlikely that there would have been any practical difference in result whether the jury had been directed in terms of a capacity to understand that an act was wrong according to ordinary standards, or to understand that it was contrary to law. It appears that that was the reason why the court would have 'hesitated' to order a new trial simply because the jury had been directed that the test of insanity was whether the accused knew that firing a shot at another person was against the law (at 375). However, the court made it clear that such a direction was erroneous (at 367 ‑ 368).
It is not easy to summarise the detailed discussion of authority in Stapleton in a way which is capable of being fashioned into an appropriate direction in every case of insanity. However, the principles extracted from that discussion appear to focus upon two issues. First, the ability to know that one 'ought not' to do an act or make an omission is a capacity to know that one 'ought not' to do it according to ordinary standards of right and wrong, rather than knowledge that the act is unlawful... The second principle is that the capacity which must be found to be lacking is not merely a capacity to appreciate, in some abstract sense, that others would view the act as wrong. Rather, it is a capacity of the particular accused either to discern the difference between moral good and evil, or to 'think rationally' of the reasons which would lead ordinary people to consider the act to be right or wrong.
... Although a direction as to whether the accused was capable of reasoning 'with some moderate degree of calmness' or, as it was put in Porter, with 'a moderate degree of sense and composure' is sanctioned by authority, it may in some cases, in my view, run a risk of confusing the jury. That is because these offences generally take place in circumstances in which the accused is, plainly, not composed and not calm. The relevant issue is not whether the accused is, in fact, at the particular time, reasoning calmly and rationally. The question is whether the accused's mental condition is such that the accused is incapable of thinking in a rational way [59] ‑ [61].
56 As to what is meant by the expression 'capacity to know that he ought not do the act', I also rely on what the High Court said in Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 367:
For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. See R v Davis (1881) 14 Cox CC 563, Stephen J, R v Kay (1904) 68 JP Jo 376, Stephen J. In R v Porter (1933) 55 CLR 1828 at pp 189, 190, this was expressed by Dixon J as follows:
'The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong (footnotes omitted).'
57 The State submits the Code s 28(2) applies in this case so that s 27 does not apply because the accused has not proved on the balance of probabilities that he had not intentionally caused himself to become intoxicated. Therefore, I must consider the meaning of intoxication and the legal principles relevant to s 28(2).
58 In The State of Western Australia v Brown [No 3] [2013] WASC 349 and The State of Western Australia v Lang [No 2] [2016] WASC 206, I considered the meaning of the Criminal Code s 28. I see no reason to change the views which I expressed in those cases. In Brown, I said:
[T]he Macquarie Dictionary defines 'intoxication' as including:
The Shorter Oxford Dictionary defines 'intoxication' as including:
(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.
...
In my view, the most appropriate definition of 'intoxication' is 'overpowering action or effect on the mind'.
...
The Macquarie Dictionary defines 'disordered' to mean 'in confusion' or 'mentally ill'. The online Oxford English Dictionary defines 'disordered' relevantly to mean:
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 [45] ‑ [49].
Using the same definition of intoxication, s 28(2) says that s 27 does not apply to a person who has intentionally caused his mind to be intoxicated; that is, subject to the overpowering action or effect of a drug or liquor.
I am of the opinion that s 28(2) refers to a person who has 'become intoxicated' at the time of the commission of the relevant acts.
The common law and cases on s 28 and similar statutory provisions do not suggest that an accused who has intentionally caused themselves at any point in the past to become intoxicated cannot rely on the defence of insanity. Neither does the State submit that is the meaning of the section. Rather, the State submits that s 28(2) says that the defence of insanity does not apply to a person who has intentionally caused himself to become intoxicated at any time in the past and that past intentional intoxication has contributed in some way to the deprivation of a relevant capacity.
In my opinion that is not the law. ... That is, intentional intoxication disentitles, even a mentally impaired person, from relying on the defence of insanity. However, it is intentional intoxication at the time of the commission of the offence which the law is concerned about. In this respect I am of the view that s 28(2) reflects the common law as stated by Lord Birkenhead LC in Director of Public Prosecutions v Beard [1920] AC 479:
'But drunkenness is one thing and the diseases to which drunkenness leads are different things, and if a man by drunkenness brings on a state of disease which causes such a degree of madness, even for a time, as would have relieved him from responsibility if it had been caused in any other way, then he would not be criminally responsible.'
Thus, if an accused 'brings on' mental impairment by past intoxication with drugs or liquor, s 28(2) does not disentitle him from relying on the defence of insanity, unless he is intentionally intoxicated at the time he does the relevant acts...
On the other hand, I accept that the state of intoxication referred to in s 28(2) may be longer than the time the relevant accused subjectively experienced the effects of the drugs or liquor. In this respect, I agree with the conclusion of the Queensland Court of Appeal in R v Clough [2010] QCA 120 that the ordinary meaning of intoxication is wide enough to encompass more than comparatively short-term elation or stimulation.
It is a question of fact whether the accused was intoxicated and the accused's experience of the effect of the drugs or liquor may be only one of a number of matters relevant to that determination. Nevertheless, the drugs or liquor must still be found to have had an overpowering action or effect on the accused's mind at the time of the commission of the relevant acts, in order for him to be 'a person who has intentionally caused himself to become intoxicated' so that s 28 (2) can apply and s 27 does not apply [36] ‑ [42].
60 In R v Clough [2010] QCA 120, the Queensland Court of Appeal considered the relationship between unsoundness of mind and intoxication. Muir JA made the following statement which is applicable to the Code s 27. When considering it, the Code term 'mental impairment' should be read for 'mental disease or natural mental infirmity'. His Honour said:
It can readily be seen from the plain words of s 27(1) that the sub‑section applies only if it is the 'state of mental disease or natural mental infirmity' which deprives the person of one of the specified capacities. Where a person is deprived of a relevant capacity by the effects of intoxication on a pre‑existing condition, the pre‑requisites for release from criminal responsibility are not engaged. If s 27(1) did apply in those circumstances, it would be inconsistent in its application with s 28 (unless construed as contended for by counsel for the appellant). Such a construction could also produce some unpalatable and/or unexpected results. For example, a person could obtain the benefit of the section where knowingly deleterious drug or alcohol consumption acted on a relatively minor mental disease to cause the loss of a relevant capacity [26].
61 I agree with his Honour's reasoning, so that the Code s 27 only applies where the accused's state of mental impairment, which by definition does not include temporary intoxication by drugs and/or alcohol, deprives the accused of one of the relevant capacities. The onus is on the accused to prove that any mental impairment he suffered deprived him of a relevant capacity.
62 The question then is what role does the Code s 28 play? It also can be 'readily seen from the plain words of' the Code s 28(2) that the subsection says that the Code s 27 does not apply to an accused who has intentionally caused himself to become intoxicated. Thus even where an accused can prove that his mental impairment deprived him of a relevant capacity, he will not be able to avail himself of the insanity defence if he was voluntarily intoxicated at the time he did the relevant acts. As the onus is on the accused to prove that he falls within the Code s 27, the onus must be on the accused to prove that he was not voluntarily intoxicated.
63 The accused submits that an alternative construction of the Code s 28 is that s 28(1) enlarges the application of s 27 to include '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'. He submits that the purpose of s 28(2) is to clarify that such a person does not include 'a person who has intentionally caused himself to become intoxicated'.
64 On this construction of s 28(2), a person who was concurrently mentally impaired and intentionally intoxicated could still avail himself of the defence in s 27, as long as he could prove that his mental impairment (as opposed to his intoxication or a combination of mental impairment and intoxication) deprived him of a relevant capacity.
65 There are two difficulties with this construction of s 28(2). The first is that it would be odd if s 28(2) excluded a person from relying on the defence of insanity by reason of intentional intoxication, when s 27 and s 28(1) do not say or suggest that intoxication is a basis for the defence. That is, s 27 does not include a person who is deprived of a relevant capacity by virtue of unintentional or intentional intoxication. Intoxication is irrelevant to determining whether the accused is not guilty of unsoundness of mind under s 27, in the sense that the accused must prove that he was mentally impaired (not intoxicated) and that his mental impairment deprived him of a relevant capacity. If the accused is correct, s 28(1) explicitly extends the application of s 27 to a person who is unintentionally intoxicated, in the sense that it provides that an accused may avail himself of the defence of insanity if his mind was disordered by unintentional intoxication and his unintentional intoxication alone or, possibly, in combination with a mental impairment deprived him of a relevant capacity. On this construction s 28(2) is superfluous.
66 The second is that s 28(2) refers to s 27; not s 28(1). If the intention was to exclude a person who was intentionally intoxicated from the extension of the defence of insanity provided for in s 28(1), s 28(2) would say that 's 28(1) does not include a person who has intentionally caused himself to become intoxicated'. The reference in s 28(2) to s 27 supports the view that a person falling within the description in s 28(2) cannot avail themselves of the defence of insanity, irrespective of whether his intoxication deprived him of relevant capacity.
67 Although I agree with the State's construction of s 28(2), my decision on this point of construction is not determinative of my verdicts as I have found that the accused has failed to prove that his mental impairment deprived him of a relevant capacity.
68 In about 2006 the accused and his defacto partner, Rochelle Bache, commenced their relationship. The accused was then 34 years of age and unemployed. During the course of their relationship they had three children namely, Shaylee born 17 March 2008, Tarcan born 1 April 2009 and Tarmika born 31 August 2011. Shaylee is autistic and has significant verbal and physical disabilities. Until the events leading to the evening of 28 August 2015, the accused was a loving father. He had not assaulted Rochelle. According to Rochelle, he was 'never angry' at the children.
69 In August 2015 the accused and his family lived at unit 1, 172 Holbeck Street, Doubleview (unit 1). Unit 1 is on the right‑hand side of the driveway and faces the street. There is a second unit behind it (unit 2).
70 At the time Rochelle met the accused he was a cannabis user but he was not smoking heavily and he stopped completely in about 2009. He recommenced smoking cannabis in about 2012 or 2013. He 'started to smoke a lot more' in the couple of months before August 2015.
71 In the two months prior to August 2015, coinciding with the increase in his use of cannabis, Rochelle noticed that the accused's behaviour started to change. He was 'getting angry all the time and swearing and yelling'. He abused Rochelle and became insecure and jealous.
72 In the couple of weeks prior to 28 August 2015, the accused's cannabis use increased again. It increased from the use of $25 of cannabis per day up to $50 worth of cannabis per day. The accused also bought a carton of beer a day and managed to drink most of it.
73 Antonella Tonaro, who resides at unit 2, told the police that the accused had told her several times that he started drinking at around 5.00 am and could consume a carton of beer a day. He also said that he smoked cannabis every day and that it 'made him intelligent, like a computer when I have weed'. The accused's comments indicate that Rochelle's evidence about the amount of alcohol and cannabis that the accused was consuming around this time is accurate.
74 The accused smoked his cannabis in the storage shed at the rear of unit 1. He also smoked cigarettes but did not smoke inside the house. He kept his lighter or lighters inside unit 1on a bench near the rear sliding door.
75 Christine Smith and Daniel McMillan were defacto partners who moved into 171 Holbeck Street in January 2015. 171 Holbeck Street is directly across the road from unit 1. Christine and Daniel came to know the accused as neighbours. On one occasion they were invited to a barbecue at the accused and Rochelle's home. On that occasion the accused bragged about how he had committed some relatively minor dishonesty offences. Daniel told him that he would get himself 'locked up'. The accused laughed and said that he would 'pull the tard card'. By that, he meant pretend that he was insane. The accused told Daniel that he had done it once before and spent a few weeks in Graylands.
76 On the night of 25 August 2015, the accused went out. When he came home he was angry and he kicked a wardrobe. He told Rochelle that 'people were analysing him'. To her he 'seemed really paranoid'.
77 During that week the accused's mood was 'really strange' in Rochelle's opinion. She said that he would cry, then be happy or angry. He also pulled angry faces and breathed 'like he was mad'.
78 On one occasion he told Rochelle to take off her clothes and to get onto the bed. He then suggested in a crude manner that they should have anal sex. Rochelle refused and the accused said to her 'alright bitch then get changed'.
79 In the early hours of 27 August 2015, the accused drove to the casino. He told Rochelle that he could not sleep and that was why he was going out. At about 6.30 am the same morning, the accused arrived home and walked inside. Rochelle heard a taxi outside, tooting its horn. She asked the accused why that was occurring and he said that he could not pay the taxi. He told her to pay for it but she had insufficient cash.
80 The accused then took off his shirt and went outside. He picked up a solar light and threw it at the taxi, hitting its windscreen. The accused then went to bed and slept for about three or four hours before getting up. That night he took Tarcan and went to his sister's house. Sometime later that night Rochelle noticed that the home telephone line had been cut.
81 Over the five days leading up to 28 August 2015, the accused visited Christine. This was not unusual in that at times he would visit her, tell her that he had noticed Daniel's car was not there and would invite himself over.
82 However, over that five days, Christine noted that the accused was 'acting irrational, psychotic, aggressive and confrontational'. The examples which she gave in her statement of the accused's behaviour during that time do not meet that description. She noticed that he was looking at all she had on display in the house and on one occasion she found him looking at Daniel's belongings in the spare room.
83 Christine says that on each occasion that the accused came over 'he would rant and rave'. She said that she felt that he was trying to intimidate her when Daniel was not home. She also had the feeling that the accused was dominant over Rochelle and that he was trying to dominate and intimidate her.
84 Antonella also made particular observations about the accused in the week of 28 August 2015. She noted that he appeared to be 'very pale and incoherent'. She said that he was sweaty but also stated that he was cold. She says that he looked evil and she felt frightened to be in his presence.
85 On the morning of Friday 28 August 2015, the accused and his family got out of bed at about 8.00 am. At that time Shaylee was sharing a bedroom with Tarmika. Shaylee had her own bed and Tarmika had a cot. Tarcan slept in a separate bedroom.
86 Rochelle made breakfast for the children and herself, but the accused would not eat anything. Rochelle noted that he had not been eating all week. She also noted that he was 'really excited and in a happy mood'. He said that they needed to get out of the house and do something. The accused decided to take Tarcan to Scarborough. The accused and Tarcan left the house at about 10.30 am in the accused's car. Rochelle stayed at home and spent time with Tarmika and Shaylee.
87 Sometime in the afternoon, around 1.30 pm, the accused and Tarcan arrived home. Rochelle says that the accused had left his car in Scarborough and he and Tarcan caught the bus home. I infer that that was what the accused told her. She is not sure why the car was left at Scarborough. The accused came home with a carton of beer. I do not know whether it had a high or low alcohol content. The accused had also purchased some presents for the children.
88 When he arrived home, the accused sat down 'with an angry look on his face'. At some point he started laughing to himself and breathing heavily. Rochelle noted that his mood was changeable and 'he looked like he was in another world'. Rochelle spent the afternoon trying to keep him calm. During this time he was drinking beer and smoking cones of cannabis in the shed. Rochelle believes that he may have run out of cannabis at one stage.
89 Between 3.00 pm and 4.00 pm that afternoon, the accused walked over to speak to Christine who was watering on her front lawn. He was holding a stubby of beer and a pack of cigarettes. His dog was running loose in the area. The accused told Christine he was sorry and asked if it was alright to walk up the driveway. Christine said that it was and he did so. The accused offered her a cigarette and told Christine that she was wasting water. He told her to go inside her house with him and she refused. Christine noted that the accused did not look like he was 'in his right mind'. She believed that he looked 'really drunk' and that he was 'sleep deprived'. On a rating of one to ten, with ten being completely drunk and one being sober, she rated his state of intoxication as 8.5. He repeated his request and she ignored him. He then said that he had to go back home to get something.
90 Christine remained outside and she heard the accused yell at Rochelle because the children were being loud. Christine turned off the hose and went inside her house as she did not feel safe.
91 At about 6.00 pm Rochelle told him that he should go to visit Anne.[1] The accused visited Antonella and she let him inside unit 2. She noticed that he was shivering and sweating. He wrapped his arms around himself. Antonella asked the accused to tell her what was wrong. The accused 'remained still with his head lowered'. He repeatedly said 'what' and did not answer Antonella when she spoke to him. After about half an hour the accused returned to unit 1.
92 Rochelle cooked herself and the children dinner but the accused did not eat. Rochelle usually put the children to bed by herself but on this evening the accused wanted to help. At about 7.30 pm he started to put the two girls to bed. Rochelle said that he was acting 'really strange'. It took about an hour for him to put the children to bed where it would usually take about ten minutes. She noted that he was moving slowly and that at one point he folded the blankets back like he was 'in slow motion'. At another point he sat down on the floor in the children's bedroom. After putting the girls to bed, he then went and tucked in Tarcan.
93 At about 8.30 pm Rochelle and the accused lay on their bed. They cuddled but when Rochelle tried to kiss the accused he said 'nope get your hands off me'. At first he accepted her cuddle but then he changed and was angry. His behaviour made Rochelle very scared. She suggested that they get up and watch a movie. They got up but did not watch a movie.
94 The accused drank more beer and smoked some cones of cannabis. Rochelle does not recall whether he was slurring his words or swaying like she had noted previously when he was drunk. The accused came inside from the storage shed and said 'get me a beer bitch'. Rochelle told him not to talk to her like that and he went back to the shed. She could hear him talking like he was talking to somebody. He was talking about going to the movies. Rochelle concluded that he was talking to himself because his phone was inside and there was nobody else on the property.
95 The accused told Rochelle to get him a beer. She told him that the beers were not cold. He then told her to run him a bath, even though he had already had a bath that day. Although she started to run the bath, half way through she emptied it because she thought that it was a strange request. Rochelle let their dog inside the house. She was feeling unsafe and she felt that she would be reassured by the dog's presence. She sat in the lounge‑room and patted the dog.
96 The accused walked around the house talking to himself. Rochelle noted that it was common behaviour over the 'past few weeks'. Again, the accused was laughing, then angry and breathing strangely.
97 At this point Rochelle was trying to keep the accused calm as she was in fear for her life. The accused went to the storage shed and smoked some more cannabis and drank some more beer.
98 Around 10.00 pm Antonella heard shouting from unit 1 as well as glass breaking. She then heard the accused in the driveway which separates the two units. The accused shouted that aliens were coming to get him, that the police were coming but he wanted an actress called Pamela Anderson to come in place of the police. She then heard the accused make a deep roaring noise. It sounded 'almost animal in nature'. In her statement to the police, Antonella said that it was not unusual for the accused to behave like this so she did not pay it any attention.
99 At about 11.45 pm the accused went to the toilet. He was mumbling his sister's address. He repeatedly said:
100 The accused took off his clothes and said that he was going to Daniel's home. He left unit 1 whilst he was still naked and ran across the road towards Christine and Daniel's home.
101 Rochelle stood by the door and could hear what he was saying. Rochelle heard the accused say that he had had sex with Christine. She thought that the accused was trying to get Daniel to fight him. Christine and Daniel were sitting in their lounge‑room. Christine heard the accused say 'Daniel get your arse out here'. She also heard items being disturbed in what she thought was an attempt to get their attention. She also heard the accused screaming out for cannabis. Daniel called out from inside the house and told the accused to go away. Christine and Daniel recall the incident lasting for 2 ‑ 3 minutes. The accused returned to unit 1 but Christine could hear the accused screaming from inside her home.
102 After leaving Christine and Daniel's home, the accused went into the kitchen of unit 1 and picked out a blue handled kitchen knife from a drawer. The knife has a 16 cm long slim blade which is sharpened on one side only.
104 The accused chased Rochelle with the knife and she ran outside yelling for help. The accused said to her:
You're dead bitch. I'm gonna get the petrol and lighter from the shed [138] ‑ [139].
105 It must have been around this time that Stephanie heard noises coming from the accused's home. Stephanie lived at 169 Holbeck Street. She had been watching a UFC documentary on television and she turned it down so she could hear the noises more clearly. She got up and opened the door to her home so she could see what was happening across the road at unit 1. She saw a female in a pink dressing gown who must have been Rochelle, and she saw a male figure, who must have been the accused, walking inside the house, past the front door. The solid front door was open which allowed her to see into unit 1. Stephanie heard the accused say 'I'm scared' and Rochelle say 'I love you'. To Stephanie it sounded like Rochelle was trying to reassure the accused, which I am satisfied is the case.
106 When Stephanie saw the accused walking past the front door of his home, he was still wearing jocks. She also heard the accused say 'the Maori's are coming'. Stephanie sat back down but she kept the volume down on the TV in case what she thought was a domestic dispute escalated.
107 Rochelle yelled out to Antonella to ring the police. Antonella heard the following exchange between Rochelle and the accused:
Rochelle: Eddie, I love you. Please don't do this, have a good sleep.
Accused: No, lay on the floor, get on the floor I'm going to burn you.
Rochelle: No Eddie, don't do that I love you, don't Eddie, please don't you're scaring me.
Accused: Okay, I will burn the kids, I bought enough petrol [28] ‑ [32].
108 Antonella said that the accused sounded very calm, which alerted her as, in her view, he normally shouts whenever he talks.
109 The accused went through the dining room sliding door to the storage shed. Very quickly, he returned holding a jerry can. Rochelle did not see him with a lighter but he told her that he was getting one when he got the container.
110 The accused had petrol for a whipper snipper which he kept in the shed. Rochelle does not know, and neither do I, whether the petrol in the jerry can was for the whipper snipper or whether the accused purchased it for this purpose.
111 The accused went into his daughters' bedroom. He lifted the jerry can up and poured some of its contents over Tarmika's head and face. Tarmika was screaming 'stop'. The accused ignited the petrol which he had poured over Tarmika. The neighbours heard Rochelle screaming. When Stephanie heard Rochelle scream something to the effect that the accused was setting the children on fire, she ran across the road to the house and went inside.
112 Daniel and Christine heard Rochelle say something similar and yell for them to help her. Christine ran to unit 1 and called emergency services from outside the home. Daniel retrieved a fire extinguisher from his car before he crossed to unit 1. Antonella also came out of her home and remained out the front of unit 1. The only additional thing she heard the accused say was:
113 As Stephanie ran inside unit 1 she smelled petrol. She saw into the girls bedrooms and saw Tarmika standing up in her cot with her head on fire. She picked up a blanket which was in Tarmika's cot and doused the flames by covering her with it. As she did so, she turned and saw the accused about one metre behind her. She noted that he was pouring petrol onto Shaylee who was lying on her bed. The accused was naked. Stephanie forcefully told the accused repeatedly to get away from Shaylee. He just stared at her and the children. Once Stephanie had extinguished the flames on Tarmika, Stephanie picked her up out of the cot and moved towards Shaylee's bed. She grabbed the back of Shaylee's pyjama top collar and dragged her out of the bed. Shaylee fell to the floor and Stephanie could not pick her up because of her weight. Stephanie dragged her out of the bedroom by her clothing, whilst holding Tarmika.
114 Whilst Stephanie was in the bedroom, the accused neither moved away from or closer to Shaylee or herself. He just remained staring. At some point however, he did stop pouring petrol onto Shaylee. The only words the accused said to Stephanie were:
115 Once Stephanie got both girls closer to the door, she told Shaylee to run and Shaylee ran out of the house to her mother. Stephanie followed and took Tarmika to her home and put her in a bathtub of water to treat her burns.
116 Daniel ran into the house after he saw Stephanie run out with the children. He walked through the lounge and saw the accused standing naked in the kitchen. He was drinking a beer and pacing. The following exchange took place between them:
Daniel: What the fuck?
Accused: What do you mean?
Daniel: What the fuck Eddie, you've burnt your kids.
Accused: They are my kids to do whatever the fuck I want.
Daniel: You can't be burning your kids.
Accused: Tarmika was too fucking beautiful, that's why I burnt her.
Daniel: You're fucked, now your gonna go to jail.
(The accused produced the blue handled knife)
Accused: I'm gonna cut my cock off [63] ‑ [72].
117 The accused was still holding a stubby of beer and he threw it at Daniel. It just missed him and smashed on the wall. Daniel told him not to throw anything else. The accused laughed and threw another stubby at him, which also missed. Broken glass was found later embedded in the wall.
118 The accused then moved towards Daniel with the knife in his right hand. He lunged forward with the knife pointing towards Daniel. He was about 1.5 metres away from Daniel. He lunged again, and tried to stab Daniel in the stomach with the knife. Daniel reached forward and grabbed the accused's right arm and twisted it so that he would drop the knife.
119 Daniel had entered the home with a fire extinguisher but put it on the table when he went into the kitchen. He then grabbed the fire extinguisher and hit the accused on the left side of the head. The accused fell to the ground.
120 Daniel turned off the smoke alarm which was sounding and walked back to the accused. The accused got up and grabbed onto his shirt. Daniel grabbed the accused by the throat and pushed him back down onto the floor.
121 Whilst Daniel and the accused were involved in this confrontation, Christine ran inside the house and picked up Tarcan who was lying in his bed. As she returned to the front door she heard the accused say:
122 Rochelle went back into the house and the accused asked her whether she still loved him. Rochelle said that she did not, after what he had done. She then went back outside.
123 Daniel told the accused that the police were coming and the accused said:
He then rolled onto his stomach and mimicked being handcuffed by placing his hands behind his back. Daniel then picked up the knife and fire extinguisher and walked out of the house, leaving the accused alone inside.
124 At about 12.12 am the first responding police were tasked to attend 172 Holbeck Street in relation to a complaint of the accused acting erratically. A short time later police and emergency services arrived. Ambulance officers attended to Tarmika and the police secured the scene.
125 Sometime after 12.21 am, Senior Constable Pickering, Constable Jeffries and Constable Macdonald walked to the front door of unit 1. Senior Constable Pickering called out 'police' and knocked on the door. He called out to the accused to come to the front door. He heard the accused shout something but could not hear the words. Senior Constable Pickering called out again to come to the front door. The accused then walked out from a bedroom. He was still naked. Constable Macdonald formed the opinion that the accused's head was wet and that he was covered with petrol. The accused seemed calm and said 'somebody has spiked my cannabis'. The accused said:
Look at my small penis its tiny, show me your one, go on show me (ts 90).
126 Constable Jeffries said 'is there anybody inside the house' and the accused replied that all his kids were outside. He said that there was petrol in the house and that he was going to light it up. For this reason, the police did not enter the house.
127 Constable Macdonald told the accused to come to the door so that they could talk. After a few minutes discussion, the accused became agitated and marched towards the front door. He put out his hands and said something similar to 'let's have it boys'. Once the accused was at the front door, Constables Jeffries and Macdonald grabbed him and handcuffed him. They took him into a bedroom where they found a pair of shorts. They helped him to put them on. The accused was advised that he was under arrest and given the caution. He did not respond to the caution. It was then about 12.25 am.
128 The police officers escorted the accused to the secure pod of their police vehicle which was parked outside. Stephanie had returned to the front of 172 Holbeck Street after the ambulance officer's took over the care of Tarmika. She saw the accused being escorted up the driveway by police officers and heard the accused say:
129 Stephanie thought that that comment was unusual because she did not know the accused, had never met him and had not publicised the fact that she liked UFC fighting or anything of that nature. The comment by the accused raises the suspicion that at some point during the evening, the accused had been looking into Stephanie's home. However, there is insufficient evidence to establish that he did.
130 The accused sat on the edge of the pod. Constable Jeffries gave the accused his arrested suspect rights. The accused did not acknowledge him. The accused then attempted to stand up and forcefully walk past the police. He said 'I'm walking over there'.
131 The police officers restrained him and sat him down on the rear of the secure pod. Due to the accused's change in behaviour, Constable Jeffries closed the pod door and he and other officers observed him from outside the vehicle. One of the officers who observed the accused was Constable Dawes. She noted that his demeanour was erratic. One moment he would stare out of the rear window and the next he would yell and bang on the rear pod. She heard the accused talking to himself. He repeatedly said 'I'm sorry, I'm sorry Mum'. Detective First Class Constable Garratt also observed the accused in the secure pod. He noted that the accused appeared to be in an aggressive and agitated state. He banged on the door of the pod and shouted something about 'god' and being abducted by aliens. Another Detective, Detective Senior Constable Miley also observed the accused in the back of the police vehicle. He observed the accused violently kicking the inside of the van whilst screaming unrecognisable words.
132 At some point the accused was driven to the Perth watch‑house and locked in a cell. At about 2.53 am, Detective Garratt assisted forensic police conduct a non‑intimate forensic procedure on the accused. Whilst the procedure was being conducted the accused was irrational and continued with what Detective Garratt described as his 'bizarre and manic behaviour'. At about 4.00 am the accused was charged.
133 Tarmika was taken by ambulance to Princess Margaret Hospital. On examination she had mixed deep, partial and full thickness burns to her body including her head, neck, face, right upper arm, right and left hands, right shoulder and chest. Thirteen percent of her body surface area was burned, with an inhalation component.
134 Tarmika required immediate resuscitation, intubation and ventilation, pain management, oedema control and specialist wound care. Tarmika required surgical intervention by debridement and skin graft with sheets and cells on 30 August, 7 September and 24 September 2015. She also required general anaesthetics for dressing changes on four occasions, investigation of the vocal cords and right ear by ENT surgeons. Both areas demonstrated burn damage.
135 Tarmika commenced laser scar management on 29 October 2015. This therapy was in addition to full conservative scar management with topical skin therapies and pressure garments.
136 She was discharged from hospital on 16 November 2015. She remains under the active care of the burns team with scar interventions required until the completion of her growth. She also remains under the care of the ENT team for scarring in the right ear and vocal cords. She is also receiving care from the psychology team.
137 Dr Wood opines that Tarmika's injuries were severe and life threatening. Without medical intervention the injuries would have endangered her life. Dr Wood also says that Tarmika will be permanently scarred.
29 August 2015 - events after the accused's arrest
138 By about 6.15 pm on 29 August 2015, the police had transferred the accused to Hakea Prison (Hakea). I do not know what his condition was between 4.00 am that morning and the time information is first recorded by the medical staff at Hakea.
139 A clinical nurse noted that the accused had been very aggressive towards staff when getting off the truck at Hakea. The accused was visibly in another world and growling and barking like a dog. At that point he was in shackles and a spit‑hood.
140 Another nurse saw the accused at 6.16 pm that evening and noted that he was in full restraints in a safe cell. The shackles were loosened. At that time the accused was talking to people who were not in the cell with him. His eyes were closed, he was thrashing about and 'wild'. The nurse queried whether he was in a drug‑induced psychotic state.
141 The Hakea medical staff contacted the Frankland Centre (FC), the secure forensic mental health institution. They were advised that a bed was available, however, the accused had to be assessed by a mental health nurse in prison before being sent to the FC.
142 At 7.30 pm the accused was observed sitting on his mattress staring vacantly at the cell door. He was laughing with 'intermittent, exaggerated grimacing of face'. He was mumbling with occasionally loud outbursts. He was also making 'unintelligible guttural noises' and, at times, barking like a dog. When the accused was spoken to by a nurse he was able to notice the nurse but unable to comprehend anything said or understand questions. He was not oriented in time, place or person. The nurse was unable to check the restraints but he noticed that the accused was moving his limbs and occasionally punching the air with his left fist.
143 Shortly thereafter, the superintendent of the prison determined that the accused would remain at Hakea that evening.
144 At 9.15 pm staff entered the cell to physically restrain the accused and to replace the mechanical restraints. Whilst he was restrained, the accused began spitting at staff and the spit‑hood was used again. The accused made a number of clear but 'bizarre' comments. These included:
(1) I'm Popeye or Olive Oyl (whilst mumbling the tune relating to these characters).
(3) It's Charles Bronson (along with intermittent whimpering).
145 The accused was unable to understand the clear and reassuring instructions given by staff.
146 Between 1.00 am ‑ 2.00 am on 30 August 2015 the accused covered himself with the doona and appeared to be asleep. By 2.15 am he was awake and yelling continually. At 2.20 am he sat on the toilet and slipped, hitting his head on the floor. He did not seem to have sustained a serious injury from falling to the floor. He was making generalised abusive threats.
147 At 2.40 am Hakea staff spoke to the emergency department at Fiona Stanley Hospital (FSH) because of concern about the accused's sweating and salivating. They were advised that it was a regular occurrence with acute psychosis secondary to recent heavy methamphetamine use. It was determined that the accused would be continued to be monitored by prison staff.
148 At 7.17 am the accused was seen by a nurse member of the comorbidity team at Hakea. This is a team which manages prisoners with the comorbid issues relating to mental health and substance abuse. At that time the accused was crying, laughing, grinning, rolling around the floor, non‑responsive to any question asked of him and having rambling, disorganised and incoherent speech.
149 At 8.25 am the accused accepted diazepam and lorazepam but he continued to cry and ramble incoherently. He was barking, at times, and doing the Haka.
150 At 8.47 am the FC advised that it would accept the accused. The accused was triaged at FSH at 11.10 am. He was in restraints, agitated and aggressive. The accused had 'flight of ideas' 'he was manic and unable to concentrate on questions'. Although a blood sample was taken, no toxicology tests were done on that sample. At 11.37 am he was given olanzapine, an antipsychotic, sublingually.
151 The accused was given more olanzapine and from about midday through to 5.00 pm he was given intravenous midazolam, a benzodiazepine, to sedate him, in 5 boluses totalling 10 mg. At 1.30 pm it was noted that despite the drug therapy, the accused was 'alert and mildly agitated'. Just before 2.00 pm the accused was given intravenous diazepam, another benzodiazepine, to sedate him. At 4.35 pm and 8.00 pm the notes record that the accused continued to have hallucinations but had moments of lucidity. He was beginning to remember why he was arrested. At 9.20 pm he stated that he 'believes he turned into the Hulk'.
152 At approximately 8.00 am on 31 August 2015, the accused was given 5 mg of droperidol (a stronger sedative) intravenously and midazolam titrated to 10 mg. The hospital notes record that the accused was 'extremely agitated and non‑compliant'.
153 At 7.50 am when he was approached in preparation for 8.00 am observations and medical reviews, three security guards and three prison guards were needed to restrain him. He had worked himself to sitting at the end of the bed and refused to allow the taking of observations. The accused stated that he was 'watching the game' on the observations monitor. One of the prison guards stated that the accused had been 'watching the game' for a couple of hours despite there being nothing on the screen but numbers and lines relevant to observations. Prison guards secured the accused to his bed. The FSH emergency department medical progress notes state 'clearly a delirious picture/psychotic state'.
154 The accused was given the sedation that I have previously described. By 1.15 pm the accused was alert and compliant with his care. He was given food and drink.
155 The FSH medical progress notes state that on 31 August 2015, in the afternoon, the accused was much more settled than in the morning. They state that the author of the notes was able to obtain more information regarding the patient's medical history. However, it is not clear to me whether this was obtained from the accused or his family. In any event, the notes record that he had regular medication of paroxetine for depression, that he was a smoker, occasionally drank alcohol, denied intravenous drug use and admitted to occasional cannabis use. He was medically cleared at 3.10 pm for transfer to the FC.
156 At 7.00 pm on 31 August 2015, the accused was assessed at the FC having been transferred from FSH. The history given by the accused was that he was a 43 year old male who lived in rental accommodation with his partner and three children. He apparently said that he owned his own tiling business. The accused could not recall being in Hakea or FSH. There is a reference in the notes to the accused's comments about being the Hulk or Popeye but unfortunately the notes are illegible. The accused described his mood as 'great'. He said that he had no problems with sleep and his appetite was okay. He denied suicidal or homicidal thoughts. He denied current perceptual disturbance and said he had not had the same 'for years'. He denied thought broadcasting and superpowers.[2]
157 The accused said that in 2005 he had been admitted to Sir Charles Gairdner Hospital (SCGH), Fremantle Hospital and Bentley Hospital as well as the FC. He said he had been diagnosed with antisocial personality disorder (ASPD) and polysubstance abuse. He said:
I was misdiagnosed. I'm the opposite of anti‑social. I'm a teddy bear.
He also said that he had been to the Osborne clinic about two years ago. He reported that the doctor had said that there was nothing wrong with him.
158 The accused reported drinking half a carton of beer per day and cannabis daily. He denied using synthetic cannabis. He said he smoked a pouch of tobacco a week. He said that he had used amphetamine type stimulants but denied recent use. He then stated that his mate may have slipped him something 1 ‑ 2 weeks ago.
159 In relation to his current functioning he said that he enjoyed going to Scarborough beach. He said that he loved his family and he would do anything for them. He commented that they were beautiful. He said that he previously worked in a variety of labour jobs but now owned his own tiling business.
160 The doctor who completed the assessment described the accused as having good eye contact, engagement and rapport. He or she noted that there was no psychosis. Speech was noted to be of normal rate, tone and volume. His affect was labile. He was laughing at times and tearful at others. He was noted to be tangential at times but had no preoccupations or obsessions. He had no perceptual disturbances and he was not responding to unseen stimuli. He had partial judgment and insight. He was not oriented to day or place.
161 The doctor noted that the accused had alcohol, cannabis and nicotine dependence. The doctor queried whether there was resolving drug‑induced psychosis. The differential diagnosis was of psychotic or manic episode.
162 At 8.00 pm the nursing notes indicate that the accused stated that he could not remember anything about the past few days other than that he thought he was the Hulk. He stated that he was 'fine now' and his 'normal self'.
163 Sometime on 1 September 2015, the accused was interviewed by another doctor who made handwritten notes. On the same date, Dr Anca Corbu, consultant psychiatrist at the clinical inpatient unit of the FC, completed a typed report concerning the accused for the Perth Magistrates Court. The report indicates that Dr Corbu had interviewed the accused. I infer that the doctor who made the handwritten notes was Dr Corbu.
164 In her written report she noted that the accused was unable to recollect the events leading to him being imprisoned. His last recollection was being at FSH. She said that he had stated:
[O]ver the last two weeks he has been under an enormous amount of stress such as dealing with the care of his oldest daughter who is seven years old who suffers from epilepsy and severe autism, together with his guilt of not being able to work and provide for his family. Most recently the middle son has been having problems not eating and becoming anaemic which was adding to his regular issues (exhibit 6, page 111).
165 Dr Corbu said that the accused had admitted that he has been feeling 'hopeless' with his current family stressors and that this contributes to him becoming angry when he 'blacks out'. He lashes out usually smashing things around the house. She said that he admitted to using drugs and alcohol to deal with his emotional roller coaster. He said that he never felt angry with his children or his wife, he has never hit them and he has never felt suicidal or experienced thoughts about killing himself.
166 The accused reported starting to use drugs on a recreational basis as a teenager, after his father's death, and becoming a more consistent user after his son was taken away from his care in 2000. She said that he reported using any drugs 'he could get his hands on' amphetamines, marijuana and alcohol and the only periods of abstinence was when he was in jail. Over the last seven years his use of illicit substances has been less consistent. He could not remember clearly when and what drugs he used in the last week or so. He admitted to having been drinking alcohol daily, around 12 beers and said he had been avoiding spirits.
167 The accused reported to Dr Corbu that he was receiving treatment for depression and anxiety from his GP who prescribed him paroxetine, an antidepressant.
168 Dr Corbu said that the accused was very cooperative but had difficulties in concentration, at times, and became very vague in the conversation in particular when asked about timeframes. He presented as anxious and hyperventilating, at times. His affect was poorly communicated, classified as alexithymic, and he was anxious. His thoughts were normal in stream. He was tangential and circumstantial. There were no delusions or hallucinations elicited or reported. There was no suicidal or homicidal ideation, intent or history.
169 Dr Corbu's impression following her interview with the accused was that he was currently suffering with anxiety and emotional dysregulation, being part of an adjustment disorder following the events of the evening of 28 August 2015. She said that her impression was that the accused did not suffer with any major psychiatric conditions and did not fulfil the criteria for a psychotic or severe mood disorder condition. She determined that he did not require admission to the FC. Dr Corbu completed a discharge summary, to the same effect.
170 At about 3.40 pm on 1 September 2015, the accused was seen by a clinical nurse at Hakea after his transfer there from the FC. She noted that the accused was complaining of nausea but not vomiting. He was compliant and co‑operative. He appeared to understand all her questions, however he presented as vague and slow. The notes state:
Admits polysubstance use, methamphetamine, opioid, ETOH[3] 'lots of them' (exhibit 6, page 329).
171 The nurse noted that there were no signs of withdrawal. At 8.23 pm a clinical nurse who had seen the accused on his initial receival at Hakea on 29 August 2015, noted the accused was 'considerably more subdued/coherent'. Nevertheless, he continued to move around his cell without clothes to cover himself. The accused said that he was feeling 'not bad'.
172 On the morning of 2 September 2015, the accused was seen by a nurse member of the comorbidity team. She noted that he denied any admissions to a mental health facility. He reported having 'been psychotic after using drugs' but had said that he had received no intervention. He reported wandering around naked at his mother's home and also being incontinent of urine after using cannabis, ice and Xanax. This appears to have been a reference to his behaviour in 2005. He said he was currently being treated for depression with paroxetine.
173 The accused admitted cannabis use over many years. He claimed to have been using daily for the past year, and he described his use as 'wake n bake'. When he was asked what that means he said he used from waking until he went to bed. He denied using any synthetic cannabis. He said that he had used ice off and on since 2000. The nurse typed 'recent use' on the same line. He said that he had been given some Xanax recently from 'friends'.
174 The accused was able to give a history of living with Rochelle and his three children. He was able to state their ages and that Shaylee had autism and epilepsy and attended a special school. He also gave a family history. However, it was difficult to obtain information from the accused about his previous work history. He said that he was currently unemployed but rambled about other work.
175 The nurse recorded that the accused was polite and co‑operative with no agitation. He stared at her for much of the interview. He was oriented to time and place. He was aware of his charges and started crying when discussing them. The accused was verbose but on the other hand struggled to answer some questions. He was over inclusive and his speech was deliberate. He described his mood as 'refreshed'. He said he felt 'really quite calm'. He was presented with restricted affect until he became tearful. He denied any perceptual disturbances and gave no sign of responding to unseen stimuli.
176 On the morning of 2 September 2015, the accused was seen by Dr Aaron Thillainathan. The medical notes record that the accused told Dr Thillainathan that he regularly used ice 'as much as he can get for years' he also regularly used opioids, cannabis, Xanax and alcohol. In relation to alcohol he said that he used a carton a day and he saved money that way. According to the accused he had no other medical, surgical or mental health issues. He said he was not depressed and he had no auditory or visual hallucinations. Neither did he have homicidal thoughts.
177 On the morning of 11 September 2015, a nurse member of the comorbidity team saw the accused. This was as a result of the accused not fully responding to officer commands that morning. Officers reported to the nurse that over the past 72 hours the accused had begun to deteriorate. He had stood in funny positions and curled up on the floor. On observation by camera it was noted that the accused had been standing in an upright position with his arms out and had not moved for approximately 10 minutes. He was also noted to be sweating. The nurse immediately went into the cell. She noted that the accused's extremities were cold to the touch, he was not able to follow commands and he appeared perplexed and disoriented. He was transferred to the prison health centre. His blood pressure was raised as was his pulse rate. A doctor determined that he should be transferred to FSH emergency department for assessment.
178 At about 12.15 pm on 11 September 2015, the accused was examined at FSH emergency department. His blood pressure was normal, his pulse rate had lowered and he was not sweating. He refused to co‑operate with an examination. Voluntary head/neck and limb movements were observed. Dr Gilliland's impression was that the accused's state was behavioural and he was choosing not to speak. He was not admitted to FSH. By 2.13 pm he was back at Hakea. He still had a cannula in his arm which had to be removed by prison nursing staff.
179 At around midday the following day, 12 September 2015 the accused was seen by a nurse member of the comorbidity team. The accused reported that he had 'just kinda gone into a blank' he said that he turned 'into a statue'. He said 'it's weird, I can't breathe'. He said that he felt nauseous prior to going 'blank'. However, he was 'all good now'. The nurse noted that the accused appeared 'relaxed and open in posture'. He had good skin colour and was not clammy or sweaty. He was freely moving around and able to follow directions. He engaged well, was pleasant and polite. He made appropriate eye contact. He had 'nil' abnormality of movement. His speech was normal and his conversation was logical and linear. There was no evidence of perceptual disturbance or of formal thought disorder observed or expressed.
180 On the morning of 14 September 2015, it was noted that the accused was again non‑compliant with requests from officers. It was noted that he was crying and in the same position for over one hour.
181 Later the same day the accused was seen by Dr Mark Hall, forensic psychiatrist and a medical officer with the comorbidity team. The history given to Dr Hall by the accused is not admissible to prove the truth of the contents of it. I will merely refer to parts of it as it may indicate the accused's mental state at the time he was seen by Dr Hall. The accused told Dr Hall that he had a black out on the night of the offending. He said that a couple of days prior he started to feel spiritual again and began hearing the voice of god. He said that at this stage he could not recall much else. He stated that his daughter received burns to 18% of her body 'which is three sixes ... 666 ... the number of the devil'. On further inquiry he said that he must have been thinking that she was the spawn of the devil. Then he said that he could not actually remember thinking that but had since thought it. He said that he gets voices of evil spirits telling him that it was he had thought.
182 The accused told Dr Hall that he has been hearing the voice of god and evil spirits at times, and taking personal meaning from ambient sounds such as radios, televisions or other voices. He told Dr Hall that his mood was good. He said that he felt like a good person and said that he would never hurt a fly. He admitted that his thought processes were confused.
183 Dr Hall said that there was psycho‑motor agitation evident and labile affect. The accused burst into tears at times and at other times he was jovial or rapidly escalated to anger. Dr Hall recorded that the accused had a formal thought disorder but not flight of ideas. He wrote 'more a wooliness and a loosening of associations'. Dr Hall noted that the accused appeared at times to be distracted by non‑apparent stimuli.
184 Dr Hall assessed that the accused's presentation was consistent with mixed affective episode with psychotic features. He noted that it occurred on a background of chronic alcoholism and associated psycho social problems. He said that there may be comorbid antisocial personality disorder. Dr Hall considered that there was a need to consider the presence of bipolar disorder and whether such a condition was giving rise to his current episode. Dr Hall queried whether the accused had been abusing his paroxetine in combination with alcohol thereby triggering an affective episode with features of delirium and serotonergic overactivity, compounded by an alcoholic black out and associated aberrant behaviour. In any event, Dr Hall found that the accused had not settled and remained psychiatrically unwell.
185 Dr Hall saw the accused again on 15 September 2015. He noted that the accused had responded badly to a visit from the Department of Child Protection that day. He became mute, then agitated and screamed. Later again he was mute and motionless in the unit. The accused stated to Dr Hall that he heard voices of evil spirits telling him bad things about his daughter, and that she is the devils spawn. They also tell him that he is the devil. He says that he does not believe this. He stated to Dr Hall that there is a battle between good and evil and that each side is trying to force him to choose a side. He thought that he had been singled out in this way because he may be the next Christian prophet. He said that he wanted to be left alone.
186 Dr Hall noted that more religious paranoid ideation had been expressed by the accused that day. He assessed the accused as having a mixed affective episode with psychotic features.
187 On 27 September 2015, the accused told a nurse member of the comorbidity team that he was not apologising for his alleged offending but that he loved his children 'to death'.
188 On 29 September 2015, after reinterviewing the accused, Dr Hall concluded that his diagnosis was still unclear. He recorded that the accused's reports remained unreliable and a collateral history was still lacking. However, Dr Hall noted that the accused continued to present as unwell, for example he said he was 'god', albeit less floridly so, and with periods of lucidity and normalisation of affect. His formal thought disorder was less prominent. Dr Hall thought that there was some overlay and a degree of manipulative behaviour could not be excluded, as the accused appeared to have a strong background of antisocial traits. However, total malingering appeared to Dr Hall to be unlikely, on balance.
189 The prison medical notes record that the accused's mental condition improved gradually over a number of months. By December 2015 it was noted that the accused had some paranoia congruent to his situation and fear of reprisals but nothing like what he had previously. On 11 December 2015, after seeing the accused, Dr Hall recorded that the accused did not have any formal thought disorder and that he denied delusional ideation or perceptual disturbances. Dr Hall assessed the accused as having a depressed mood in context of treated mania and growing insight into his offending, by that he meant his actions on 28 August 2015.
190 In or around March 2016, the accused wrote a letter to Rochelle. He said that he could not remember anything of what happened on the evening of 28 August 2015. He wrote that he had been told that he had a mental illness and that smoking cannabis was 'very bad for my type'. He continued:
You were right when you said don't smoke that shit at the start. I did not no it would do this to me again. As we talked about it remember I thought it was the reson (exhibit 5).
191 The accused was admitted to SCGH on 23 January 2005, and discharged on 27 January 2005. The principal diagnosis was of situational crisis with possible alcohol withdrawal. There was also possible delirium and psychosis. Other conditions relevantly noted were anxiety/depression, alcohol intoxication, cannabis use and alcohol use. On discharge the accused was prescribed paroxetine and olanzapine.
192 The accused was admitted to SCGH again on 1 February 2005 with a principal diagnosis of situational crisis. Complications of cluster B (anti‑social) personality traits and possible ASPD and alcohol withdrawal were noted. Other conditions relevantly noted were anxiety/depression, alcohol intoxication, cannabis use and alcohol use. A urine drug screen was positive for benzodiazepine and cannabinoids. The accused was discharged on paroxetine and olanzapine. The accused self‑discharged on 6 February 2005.
193 On 7 February 2005, Magistrate Wheeler made a hospital order under the then Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) s 5, s 14. It stated that the accused had been charged with an offence of being on premises without lawful excuse. As a consequence of the order, the accused was taken to Graylands Hospital (GH).
194 The GH notes state that he had arrived at the hospital naked, having stripped his boxer shorts off in the security van. He was very agitated. He was restrained and placed in seclusion. He was given quetiapine, haloperidol and clonazepam. At 3.00 pm it was recorded that he was highly aroused, violent towards self, others and property. By 5.00 pm his mood had improved somewhat. It continued to improve but he remained mildly to moderately aroused. On admission, no formal examination was possible.
195 On 8 February 2005, the accused was able to provide a history to a medical practitioner. He told the doctor that he had relationship difficulties. His partner had obtained a violence restraining order (VRO) against him on 1 February 2005 'because she thought that I was crazy'. He said that he had been charged with breaching the VRO. He said that on the day of his arrest he went to his girlfriend's place 'just to talk'. She told him to speak to her through the security door. He stripped off his clothes 'to show her that I was vulnerable, because I love her'. He denied being drunk at the time. He said that his emotions took over and 'I am a very emotional person'.
196 He said that the police arrived and took him to SCGH where he was assessed by a psychiatrist. He said that he was not admitted. He left the hospital and went back to his girlfriend's home where he stripped again in her backyard to prove to her that he did not have any weapons. She called the police and he was again taken to SCGH where he was admitted for 3 ‑ 4 days. He said that he was discharged from SCGH and he went to his mother's but his mother did not want him at home. He claimed that he had been treated with paroxetine and olanzapine when at SCGH, but was not given any medication on discharge.
197 The doctor noted that the accused had no formal thought disorder and he denied any psychotic features. He said that his mood was 'good now'. He was diagnosed with mixed personality disorder and a history of alcohol and cannabis abuse. The plan was to transfer him to another ward where he would remain until he returned to court. It was noted that he was going to plead guilty.
198 On 9 February 2005, he was seen by Dr Pascu, a forensic psychiatrist. He admitted a long history of alcohol abuse, using six large bottles of beer and a cask of port, wine and spirits per day. More recently he had only been drinking six bottles of beer per day. He said that he used cannabis 'all day'. He said that 2 ‑ 3 years ago he used speed, heroin and cocaine.
199 Dr Pascu said that the accused presented as overtly pleasant with no evidence of psychosis or formal thought disorder. Dr Pascu assessed the accused as having a mixed personality disorder with alcohol and cannabis abuse. She also noted that this was in the context of a relationship breakup.
200 On 9 February 2005, the accused was transferred to the Banksia ward and nil psychiatric issues were identified. On 11 February 2005, after being given information which was of concern to him, he became aggressive. At a window of the nurse's station, he was abusive and threatening and had to be restrained. He was consequently given drugs to sedate him. This appeared to settle him and there was no further aggression. However, on 12 February 2005, it was noted that he was feeling anxious and was restlessly pacing the corridor. Further drugs were given.
201 On 14 February 2005, the accused was discharged to court. He was discharged on paroxetine 20 mg.
202 Dr Tanney is a highly qualified and experienced consultant forensic psychiatrist. He qualified and worked in Canada. From about 2000 he has worked in Western Australia as a consultant forensic psychiatrist. His qualifications and experience are not in dispute.
203 Dr Tanney interviewed the accused for 2½ hours and reviewed relevant documents.
204 When Dr Tanney interviewed the accused, he appropriately took a history from him, both in respect to the incidents on 28 August 2015 and as to his background. Dr Patchett did the same. Both psychiatrists have relied, in part, on what the accused told them to make their diagnoses and give their opinions. As the accused did not give evidence and there is limited direct evidence before me as to his history, it is very difficult for me to determine which parts of the psychiatrists' opinions I am entitled to rely upon as being based on proved facts. However, I will briefly outline the history given by the accused to the psychiatrists as it is important for me to make findings as to what they were told, even if it is not admissible to prove the truth of what they were told, in order for me to decide the weight I can give to their evidence.
205 The accused told Dr Tanney that around August 2015 he had been feeling stressed and hopeless because of illness to his children. He had been increasing his use of cannabis and decreasing his alcohol intake in early August. I note that whilst there is direct evidence from Rochelle that the accused had been increasing his use of cannabis, she does not say, and there is no evidence upon which I could find, that he had been decreasing his alcohol intake around that time.
206 The accused told Dr Tanney that on 28 August 2015 he was having auditory hallucinations of several unknown voices that he found 'scary', though not threatening and not commanding. He had experiences of 'the TV characters talking' to him. He did not experience these as strange. I note that there is direct evidence that soon after the relevant incidents, the accused was speaking of Popeye, Olive Oyl, and the Hulk in an unusual manner.
207 The accused told Dr Tanney that 28 August 2015 was a 'nice day'. This is debatable, given Rochelle's description of the weather. He said that he took his son shopping for household items at a grocery store close to the beach. The accused says that at the beach he heard a voice say 'we've got your sister on the boat' and 'other weird shit'. He said he panicked and raced back to the car with the idea that he had to go and save his sister. He outran his son and was only held back by his son yelling at him to stop. This calmed him down and they went for an ice cream. He said that he did not know what was going on and he heard the voices again. He saw a sign at the shop with a temperature reading and thought 'cold, danger' with the renewed idea that his sister was in the freezer. He recalled experiencing 'major anxiety'. He said he led his son back to the car and they proceeded to buy a carton of beer and some children's bracelets. He said he left this in the car. This is not confirmed by Rochelle who says that when he arrived home he had beer and gifts for the children.
208 The accused said that he took the bus home for a reason he could not remember or explain. Rochelle agrees that he arrived home on the bus. He recalled putting beer in the fridge and tucking his daughters and son into bed. He also recalled being fully naked. He had no other recall of events of that evening.
209 Dr Tanney noted that the accused had provided 'virtually identical details' to a DCS nurse on 10 December 2015. Dr Tanney concluded that the information provided to him was reliable. Whilst I agree that the history given to the nurse was substantially the same as given to Dr Tanney, both accounts are hearsay and I cannot rely upon them to prove the truth of what is contained in them.
210 The accused told Dr Tanney that he had an ordinary and good upbringing. He was bullied at school because he was overweight. There was no history of fire‑setting, cruelty to animals or bedwetting. He did not like school and left after partially completing year 9. He described his father as his best friend who died of cancer when the accused was in his late teens. He said he felt he had to take his father's place to look after his mother and sister. His family moved to Perth when he was 19. He left home in his early 20s.
211 The accused had been employed in manual labour in short‑term jobs throughout his life. He said he had started a tiling business as at 28 August 2015. Although he had never been dismissed from employment, his longest job was for two years. He changed jobs frequently due to boredom.
212 The accused advised Dr Tanney that he had not been in contact with his mother for over a decade and this was related to his aggressive behaviour in 2005. He still had support from a sister.
213 The accused told Dr Tanney that he had been in three relationships. The first he said was at the age of 26 and lasted for several years. He had a child with his first partner but she left him when the child was 11 months old. He said that she introduced him to cannabis.
214 His second relationship at the age of 30 was with a woman to whom he had a son. He said they used cannabis 'heavily, every day'. This relationship ended after three years in 2005.
215 He was able to describe the relationship which he had with Rochelle and their children. He told Dr Tanney that this period was the 'most happiest time in my life' as he had 'wanted all my life to have a family'.
216 The accused told Dr Tanney that he had convictions for street drinking, stealing and aggression towards police in his late 20s related to him 'not caring if I lived or died' after his first relationship ended. At this time he served a 4‑month sentence of imprisonment. He said he had also served a period of custody in 2005 for assaulting a public officer and breaching a restraining order in association with the breakdown of his second relationship.
217 The accused acknowledged drinking alcohol alone after his father's death to 'numb the feelings'. This progressed to drinking a carton of beer on weekends. He also abused wine and port. He told Dr Tanney that cannabis replaced most of the alcohol during his first relationship. When that relationship ended he said that he had a period of taking anything that was available, including opiates and hallucinogens, to deal with him missing his son.
218 He said that during his second relationship he and his partner used cannabis on a daily basis and he decreased his alcohol intake.
219 The accused informed Dr Tanney that from 2006 ‑ 2007 his cannabis use was none or minimal but he continued to abuse alcohol. This account is not necessarily inconsistent with Rochelle's evidence that the accused was a cannabis user when they met but was not smoking heavily and that he stopped completely in about 2009 through to 2012 or 2013.
220 The accused told Dr Tanney that his cannabis abuse increased from 2013 although he avoided using resin. He said that by August 2015 he was using 'more than once per day' on a daily basis. He claimed that this allowed him to decrease his alcohol use to about eight mid‑strength beers daily. He said that all the cannabis he used had been hydroponically grown.
221 In this account to Dr Tanney, the accused has underestimated his alcohol and cannabis use at the time of the incident on 28 August 2015. Rochelle does not mention him reducing his alcohol intake and her description of the accused's cannabis use would indicate someone who was using very heavily and certainly multiple times per day.
222 Dr Tanney could not ascertain any relevant physical trauma or physical illness.
223 The accused told Dr Tanney that he had a maternal cousin with paranoid schizophrenia. He also has maternal uncles with alcohol abuse.
224 The accused told Dr Tanney that in his mid‑20s he began experiencing panic attacks and had agoraphobia. He was concurrently depressed. It was then that he was prescribed paroxetine,[4] a selective serotonin reuptake inhibitor (SSRI). He described its effect as making him a 'bit more confident, not as shy'. He said that he had continued to take this medication regularly until the present time 'in a dose at the high end of recommended'.
225 The accused described to Dr Tanney several episodes since his 20s when he had felt invincible, would feel very spiritual and think he was god and had god‑like powers. He would have excess energy and reduced need for sleep. He would get messages from TV and radio.
226 The accused said he experienced one such episode in early 2005 in the month after his son was born. He said that he had been using cannabis everyday but had not been abusing alcohol. As Dr Tanney noted, this incident coincides in time with the accused's admissions to SCGH and GH.
227 The discharge letter/summary sheet relating to the admission to SCGH on 23 January 2005, does not support the accused's report to Dr Tanney that he was not abusing alcohol at this time. As Dr Tanney says, significantly, none of the thought and perceptual disorder symptoms which the accused related to him were recorded in the GH notes, other than on one occasion where somebody noted that he was presenting with 'thought blocking' and that he looked 'preoccupied for brief seconds'. It was said that at that time the accused denied any perceptual disturbance.
228 Dr Tanney referred to other admissions in March 2005 to SCGH and Bentley Mental Health. However, there is no evidence before me in respect of those admissions.
229 Dr Tanney has noted the medications which the accused was given after 28 August 2015. He says that the relevant notes indicate that the accused was treated with diazepam[5] 10 mg twice per day for several days to address potential alcohol withdrawal. He was given the antipsychotic drug risperidone 2 ‑ 5 mg orally per day for several months commencing in mid‑September. This was changed in January 2016 due to side effects and replaced by a different antipsychotic drug, olanzapine. This was changed again to an antipsychotic/mood stabiliser drug called quetiapine in April 2016. Dr Tanney observed that all the doses were in the 'low adequate range'. He noted that in mid‑September, the mood stabiliser, sodium valproate, was also introduced and 'adequate serum levels' obtained. This was changed to the mood stabiliser, lithium, in March 2016. The accused continued to receive paroxetine, in increasing doses up to 60 mg per day in January 2016.
230 Dr Tanney says that from the notes he concludes that the medication changes in March and April were intended to address increasing suicidal ideation and planning. Dr Tanney says that the self‑harm ideation was related to the accused's his distress over this prosecution.
231 At interview, the accused claimed to have no memory of the events of the evening of 28 August 2015. He had patchy recall of his thoughts and actions during the first two months in prison. His remote memory was intact. He denied any present perceptual disturbances. He had no abnormality of thought process or thought content. He had no recall of the religiose, paranoid ideations he had expressed in September ‑ November 2015 or of the direct statements attributed to him. He said that some of what he recalled had been told to him by others and he had accepted it.
232 Dr Tanney said that the accused's emotional state was considerably blunted and lowered in intensity. He was appropriately reactive only when expressing his guilt over his actions on 28 August 2015. His affect was bland and detached. He was preoccupied with guilt over harming his children and he had made some suicidal plans.
233 Dr Tanney concluded that there is very strong evidence for the presence of a major mental disorder before, at the time of, and following the relevant incidents on the evening of 28 August 2015.
234 In Dr Tanney's opinion the accused was psychotic before and after the relevant incidents. He described psychosis as being 'impaired reality testing when fully conscious'. He said that it is characterised by abnormalities of perception, in this case auditory hallucinations, and by misinterpretations of external reality that present as abnormal content, called delusions. Dr Tanney says that the accused 'fully believed this abnormal thought content and the voices at the time, without question, and this extended until mid‑November 2015'. He noted that the accused had experienced passivity and control experiences in his physical body both subjectively and observed by others.
235 The accused had had some impairment in distinguishing his thoughts from those of others and he had beliefs that others could influence or communicate with him without speech which is called thought broadcasting and thought insertion.
236 Dr Tanney said that the accused's detached and blandly unresponsive affect and his blunted mood are characteristic of a process psychotic illness. Dr Tanney said that this clinical picture is fully recognisable as a psychotic illness with strong elements of a classical schizophrenic description.
237 Dr Tanney said that the origins and progress of the illness are described by the following:
(2) social awkwardness and no close relationship until his mid‑late 20s;
(3) mixed anxiety and comorbid depressive disorder in the accused's 20s which may have been the prodromal phase of his mental illness;
(4) the accused's self‑medication of his symptoms with alcohol and later cannabis;
(5) prescribed medication of a SSRI since the accused's mid‑20s;
(6) a 'very similar' episode in 2005 related to cannabis and to stressors involving the accused's children, aggression and sexuality, with some evidence of religious grandiosity;
(7) a prodrome for a few weeks prior to 28 August 2015, related to 'emotional stress, again involving his children';
(8) an acute onset of the episode at Scarborough beach on the morning of 28 August 2015;
(9) a strong affective component and a presentation resembling delirium;
(10) a psychotic presentation that was suppressed by benzodiazepines and antipsychotics received by the accused on 29 ‑ 31 August 2015, but which re‑emerged as the effects of these medications wore off; and
(11) responsiveness to treatment with adequate doses of antipsychotic medication and full resolution over the course of 2 ‑ 3 months.
Dr Tanney said that this is a 'historical presentation of a good prognosis, psychotic illness'.
238 Dr Tanney explained that the accused's episode of an altered mental state began before the accused used alcohol and cannabis on 28 August 2015. Therefore, he is of the view that simple intoxication is unlikely to fully explain his mental state on the evening of that day. Dr Tanney said that it is possible that intoxication made a contribution as the accused abused alcohol and cannabis before his 'blackout' and the violent behaviour that evening. Dr Tanney is of the opinion that the extended duration of the psychosis over a period of months, despite no further cannabis usage, would have been highly unlikely if cannabis was the cause of it. Dr Tanney concluded that it is likely that the accused self‑medicated his mental illness with cannabis and alcohol.
239 Dr Tanney explained that there is a considerable body of scientific evidence about the relationship between cannabis and the presence of a psychotic mental state. He says that current opinion holds that cannabis is more likely to bring out a pre‑existing psychotic predisposition rather than to induce a psychotic state that would not otherwise be present.
240 Further, Dr Tanney said that cannabis use has a complex relationship to the disorder of psychosis, usually schizophrenia. He said that the two are very often comorbid. There is evidence that cannabis has one chemical component that is actually antipsychotic, such that it may be used as self‑medication. He concluded that he is of the opinion that cannabis did not create the psychosis of 28 August 2015, but may 'certainly have made some contribution to unmasking it, as intoxication and more'.
241 Dr Tanney stated that the alcohol consumed by the accused on 28 August 2015, was not beyond the accused's usual intake and noted that the accused reported that he had decreased his alcohol intake and increased his cannabis use in the previous month. The report of decreased alcohol use only comes from the accused and I cannot rely on it. Dr Tanney said in his report of April 2016 that:
Beyond intoxication, there is little support for the idea that alcohol can induce psychosis. Beyond some dis‑inhibition due to intoxication, and accepting that this was not likely to be significant as he had a significant tolerance for alcohol, I am of the opinion that alcohol did not make a causative contribution to his altered (psychotic) mental state at the time of offending.
242 In summary, Dr Tanney concluded that the accused experienced an acute psychotic episode on the evening of 28 August 2015. He said the nomenclature used to describe it has changed over the years. Modern terminology describes it as a schizoaffective or psychotic mood disorder (bipolar) spectrum. Dr Tanney does not see any distinction between the diagnosis made by him and Dr Patchett.
243 Dr Tanney and Dr Patchett agree that the accused was not deprived of the capacity to understand what he was doing and was not deprived of the capacity to control his actions at the time of the alleged offences.
244 However, in Dr Tanney's opinion, the accused's mental illness deprived him of the capacity to know that he ought not do the relevant acts of each offences, except perhaps those acts relating to count 5.
245 Dealing with counts 1 ‑ 4, Dr Tanney said that this lack of capacity is, in his opinion, most clearly indicated by the fact that when the accused's delusional beliefs had resolved completely by the end of September 2015 he was depressed, guilt‑ridden and considering suicide.
246 It is Dr Tanney's opinion that the accused fulfils the criteria for unsoundness of mind in the Code s 27.
There is every likelihood that cannabis contributed to some unknown extent, and in a manner not fully understood at the physiological level, to his abnormal mental state at that time. The critical issue is that he evidenced the mental state abnormalities on the day of the offendings before he began using cannabis. This removes the argument of acute intoxication.
In the month before the offendings, he had been increasing his use of cannabis and decreasing his intake of alcohol. This was likely to reflect a misguided effort to manage the distorted mood and thoughts of an emerging mental disorder. In fact, there is now broad clinically agreement that cannabis may stimulate or provoke this emergence of pre‑existing psychotic experiences. Again, cannabis alone was not the only source of his mental disorder at the time of the offendings.
248 In examination‑in‑chief, Dr Tanney confirmed that his diagnosis was of an affective disorder with psychotic, predominantly manic features. He said that this is also called a schizoaffective disorder. Americans would put it in the bipolar affective disorder spectrum.[6] In this context, affective means emotional. Psychotic means that at times the accused's ability to test reality was impaired due to disorders in his way of thinking, in what he was thinking, and in the ability that he had to accurately interpret what he was perceiving.
249 Dr Tanney saw a pattern of personal crises leading to a deterioration in the accused's mental health and an increase in his use of cannabis and other substances. The first such crisis was the death of his father which led to him abusing alcohol. The second was the loss of his first relationship leading him to commence using cannabis and other illicit substances. The third was the breakdown of his second relationship which precipitated the 2005 admission to SCGH and GH. Dr Tanney feels that the incident in 2005 'bore significant similarities' to what happened in August 2015. Dr Tanney believed that he was having a psychotic incident in 2005 as well as in August 2015. It appears to be Dr Tanney's opinion that in 2005 the accused was able to contain his psychotic symptoms which is why doctors and nursing staff at GH did not note them.
250 On the evening of 28 August 2015, Dr Tanney noted that the accused was heard to say 'I am scared' by Stephanie and also to say that werewolves and aliens were coming. In Dr Tanney's view, the accused was frightened of something but he was not sure what it was and he was struggling to find out what he should be frightened of. The witnesses' description of the accused as being sweating, swearing and wide‑eyed is a picture of a man who, to Dr Tanney, was scared and frightened.
251 Dr Tanney thought that the deep roaring sound made by the accused may have been to frighten off whatever was scaring him.
252 Dr Tanney also relied on a comment that the accused had made to Dr Hall on 29 September 2015, where he said that he 'felt sad' for the sexual abuse which he believed his father had perpetrated against one of his daughters. At the same time the accused said that he thought he needed to protect his youngest daughter from the sexual abuse allegedly suffered by his older daughter. The accused spoke to Dr Hall about his father being alive in secret.
253 In relation to the accused's behaviour when he went to see Antonella on the evening of 28 August 2015, Dr Tanney said that there are a number of interpretations of that behaviour. One is that it was part of his psychosis. Another is that he was intoxicated and stuporous from alcohol.
254 In relation to the observations of the accused around 11 September 2015, that he was standing in odd positions and not moving, Dr Tanney said that such behaviour can be part of an acute psychosis and sometimes the words 'catatonia' and 'waxy flexibility' are used to describe that kind of motor disturbance seen in acute psychosis. Dr Tanney agreed that was a different presentation to the agitation seen on the evening of 28 August 2015.
255 Dr Tanney said that the five factors which underpinned his diagnosis were:
256 The affective component is made up both of the quantity of the accused's emotions and the quality of his emotions. The quality meaning that the accused was scared leading to agitation. The quantity being that he had too many emotions and was labile. The delusions as to how he was thinking refers to his flight of ideas and the fact that he could not seem to comprehend questions, process information, and make appropriate responses.
257 In respect to the medications given to the accused on his admission to FSH on 30 August 2015, Dr Tanney said that they were to calm the arousal in someone who was behaviourally agitated. The question is, why was the accused so aroused? In Dr Tanney's view it is because the accused was psychotic. He said an alternative was that the accused had a delirium but he could not find a cause for a delirium. Dr Tanney did not think the accused's behaviour was consistent with delirium caused by alcohol or alcohol withdrawal. That was primarily because of the timeframe. He considered whether it could have been caused by cannabis or withdrawal from cannabis. He said that it was very controversial as to whether cannabis withdrawal could cause a delirium. He noted that the accused was already showing a tremendous number of signs of agitation when he was at Hakea before being transferred to FSH. Dr Tanney does not believe that paroxetine would contribute to a delirium to this extent.
258 Dr Tanney said that he was then puzzled by the apparent lack of psychotic behaviour when the accused was seen at the FC on 31 August 2015. He concluded that the medications the accused received at FSH had calmed the accused down, dampened his psychosis and dampened the agitated behaviour that resulted from it. Dr Tanney acknowledges that it could have dampened down whatever was happening in the sense of whether it was a delirium or an acute psychosis.
259 In relation to the appearance of unusual behaviour again around 8 September 2015, Dr Tanney concluded that it was a recurrence of an affective psychosis that had been continuing from 28 August 2015.
260 In relation to the role of cannabis in the development of that psychosis, Dr Tanney gave evidence that:
[C]annabis can uncover a psychosis in a vulnerable brain which is another way of saying if a person has a genetic or neurochemical predisposition towards psychosis, the use of cannabis can uncover that but the use of cannabis in and of itself does not - creates an intoxication but it doesn't create an enduring psychosis of the kind that I believe we see here (ts 214).
261 Dr Tanney said that cannabis would have contributed to the psychosis which occurred on 28 August 2015, but the accused could still have had a psychotic episode even if he was not smoking cannabis. That is because Dr Tanney believes that the accused has an underlying mental disorder which recurs in response to stress, drugs, genetics and other matters. Indeed, Dr Tanney said that the accused may have had an idiosyncratic reaction to paroxetine that pushed him to a manic episode.
262 In relation to what Dr Tanney sees as the primary cause for the psychosis on the evening of 28 August 2015, he said:
[M]y belief is that he was experiencing an affective psychosis that had been coming on over the course of a while. ... He'd been treating it with cannabis and with alcohol ... as he had done previously. ... A great many people who have affective psychoses have a comorbid diagnosis of substance abuse. And the substances that they abuse ... are almost always cannabis and alcohol. And the suggestion is that those are medications that are helping them to modulate their emotional state. So it's a backward inference but the fact that he's increasing his use of cannabis in the month of August suggests to me that he was addressing the upsurge of one of these emotional episodes ... at the level of severity of being psychotic on the 28th when he went down to the beach with his son and things suddenly clicked (ts 218).
263 Dr Tanney said that on 28 August 2015, the accused had the onset of the manic psychotic phase of an affective disorder that was 'perhaps brought on by the combination of paroxetine, stress, cannabis. 'He does not see a relationship between alcohol and the psychotic episode' (ts 219).
264 The upshot of Dr Tanney's evidence was that he considered that cannabis intoxication contributed to the uncovering of the psychosis on 28 August 2015, but that the psychosis would not have occurred unless the accused had 'a vulnerable brain'. Dr Tanney said that, on the other hand, alcohol can induce an organic delirium but it could not induce a psychosis, except in its withdrawal phase. Dr Tanney then qualified that by saying that over the course of 20 or 25 years of unremitting alcohol use, a brain could be damaged in a way that created an organic condition that has been called psychosis. Nevertheless, Dr Tanney does not believe that alcohol contributed to the accused's psychosis on 28 August 2015.
265 Dr Tanney's opinion is that the accused's psychosis 'came into clear focus' on the morning of 28 August 2015, when he went to the beach. He said that the disorder fluctuated but it was there from the time the accused was at the beach. Dr Tanney's opinion is that the accused's alleged offending against Rochelle and his daughters 'had to do with protecting them or addressing in some way his belief that they were at some significant risk from things that he wasn't sure what they were' (ts 235).
266 In respect of his attempts to protect his family by doing the acts that he did, Dr Tanney acknowledged that it was speculation about what was going on in the accused's head. However, he assessed that the accused thought that the way to protect his family was to kill them all. Dr Tanney acknowledged that the threat he made to kill Rochelle and the accompanying actions did not appear to have been done in order to protect her. Dr Tanney said that in light of the fact that the accused was not normally aggressive towards Rochelle, the only explanation he could offer is that the change in his behaviour related to the very disturbed way that he was looking at the world at that moment because of his psychosis. Dr Tanney acknowledged in cross‑examination that he could not explain why the accused had settled on the idea that he had to harm Rochelle. He also accepted that the explanation about protecting his daughters from child abuse was based on a comment or two which the accused had made much later, and not on any comment made by the accused on 28 August 2015.
267 Dr Tanney concluded that in respect to counts 1 ‑ 4, the accused may have been able to make a distinction between right and wrong, but at the time he did the relevant acts, that distinction was not relevant to 'the nature and purpose of his actions'. He determined that the accused's actions occurred in the context of an acute psychotic episode and he has inferred that something in what the accused was thinking, in terms of his psychosis, led to those behaviours. He acknowledged that there was no direct evidence of a delusional idea specifically in relation to Rochelle or the two daughters.
268 On the other hand, Dr Tanney cannot say that about the way the accused treated Daniel. Dr Tanney is of the opinion that at the time the accused allegedly offended against Daniel he was irritated and wanted Daniel to go away and leave him alone. Thus, whilst his psychosis still existed, the accused could be pulled back to reality by somebody confronting him, as Daniel did, even though that was not for very long because it was only a short time later that the accused was agitated and talking to himself.
269 Dr Tanney said that the only explanation he had for why the accused responded aggressively to Daniel but not to Stephanie, given Stephanie's evidence that she also had been verbally forceful towards the accused, was that if the accused had issues relating to sex and power, he would respond more to being aggressively confronted by a man than a woman. However, it was clear that Dr Tanney had some difficulty explaining the distinction in the accused's reaction to the two witnesses.
270 In relation to the conduct the subject of count 5, Dr Tanney cannot say that the accused was deprived of the capacity to know that he ought not to act as he did towards Daniel, but he is of the view that he was not able to 'operationalise' that capacity.
271 To draw the inference that the accused was psychotic and deprived of the capacity to know that he ought not do the acts the subject of counts 1 ‑ 4, Dr Tanney relied on the auditory hallucinations the accused heard from the boat at Scarborough, the misinterpretation of reality relating to misreading the advertising signs at the beach, responding to unseen voices and people, his emotional lability, the flight of ideas, the possible sexual component relating to taking off his clothes and speaking in a sexual way to Stephanie and the male police officers, the delusions such as believing that the werewolves were coming and, in particular, the emotional component represented by the excess of emotions.
272 Dr Tanney agreed that the fundamental basis of his opinion that the accused was undergoing affective psychosis and that he did not have the capacity to know that what he was doing was wrong was that he was fearful and his alleged offending behaviour was an emotional response to that fear. He agreed that the fearful response came from the comment Stephanie heard him make of 'I'm scared' and from the accounts which the accused gave to Dr Tanney and to the nurse on 10 December 2015. Dr Tanney agreed that if the accounts given by the accused to him and the nurse were not reliable, that would affect the veracity of his opinion.
273 Dr Tanney accepted that the extent of the accused's psychosis at the time the alleged offences occurred would have been impacted by the accused's intoxication.
274 In cross‑examination, Dr Tanney said that he accepted that cannabis 'was a requirement for [the accused's] psychosis to present itself' (ts 288). Dr Tanney did not believe that the accused would have been in the mental state that he was in on that evening without cannabis use. On the other hand, Dr Tanney did not accept that the severity of the psychosis was necessarily related to the cannabis. He said that cannabis may just have unleashed the psychosis that would have been of the same intensity. Dr Tanney said that it was the THC component of cannabis which had the potential to induce or uncover psychosis. He acknowledged that the accused said that he had been using hydroponically grown cannabis and there was more THC in hydroponically grown cannabis. On the other hand, he said that there was a component of cannabis that had a calming effect. Dr Tanney said that some people attempt to self‑medicate by using cannabis for what they believe will be its calming effect, when in fact the cannabis will exacerbate their problems.
275 In relation to the accused's claim of lack of memory of the events of the evening of 28 August 2015, Dr Tanney said that there were at least two explanations for that. The first is that the mania associated with the psychosis prevents a person from laying down memories. The second is that acute alcohol intoxication could prevent the laying down of memories. I note in this respect that the accused has claimed to have had alcohol related blackouts on previous occasions.
276 In relation to Dr Tanney's opinion about the protective thoughts for his family which were going through the accused's mind at the time of the alleged offences, he acknowledged that because the accused had not given an account of what he was thinking at the time it is just as likely that something else was going through his mind when he did the relevant acts. Dr Tanney accepted that the accused's acceptance of Rochelle's entreaty not to burn her was possibly an acknowledgment by the accused that his plan to burn Rochelle was wrong. In respect to the accused's comment that he would not burn his son, Dr Tanney thought that that was simply an indication that he had made a decision in that regard, but not an indication that he had addressed, or was capable of addressing, whether it was a morally right or wrong decision.
277 In re‑examination Dr Tanney said that without relying on the accused's account of events at the beach on the morning of 28 August 2015, he would not be able to put forward the diagnosis that the accused had then an acute onset of a psychotic episode.
278 Dr Patchett is also a highly qualified and experienced consultant forensic psychiatrist. He qualified as a doctor in New Zealand in 1973 and became a Fellow of the Royal Australian and New Zealand College of Psychiatrists in 1985. He became the principal forensic psychiatrist, State Forensic Psychiatric Services, Western Australian Department of Health in 1997 and has held related positions since then to date.
279 Dr Patchett interviewed the accused on two occasions for a total of 2 hours and 50 minutes. He also reviewed the material in the prosecution brief, Dr Tanney's report and the DCS and GH medical records.
280 I note that the accused told Dr Patchett that at the time of the alleged offending, 'his life was going very well'. He said that he was the happiest in his life, he and Rochelle were going to get married, they had three 'beautiful kids' and he was about to start a business. His very positive description of his life is in contrast to that which he has given to others and on which Dr Tanney concluded that as of 28 August 2015, the accused had a number of exceptional stressors in his life.
281 The accused also told Dr Patchett that he had been drinking more alcohol and cannabis in the weeks leading up to the alleged offending. This is in contrast to what the accused told Dr Tanney about increasing his cannabis use but decreasing his alcohol intake. He reported to Dr Patchett that he was smoking cannabis twice a day and drinking a six pack of full strength stubbies a day. This account is not consistent with Rochelle's evidence.
282 The account given by the accused to Dr Patchett about the events at Scarborough beach was much the same as that given to Dr Tanney. He said that from the time he returned home from Scarborough his recollection is 'pretty much a blur'. He remembered tucking the children into bed and whilst doing so hearing voices saying things like 'be gentle, be good, you're being watched'. He also remembered sitting on the couch watching TV whilst naked. He recalled feeling he was able to communicate with the TV. The TV said to him 'that's a good person, that's a bad person, he's good, she's good, don't hurt them'. He said that the next thing he remembered was standing out the front of his house and the police being there. He said he believed he was unwell at the time and had been for a couple of days. He said that he had only been smoking cannabis and drinking alcohol but did not believe his consumption of either had been excessive that day.
283 The personal history given by the accused to Dr Patchett was similar to that given to Dr Tanney. He denied experiencing withdrawal symptoms at any stage but described regular 'blackouts' when he found it difficult to remember what had happened the night before. He said that he had also experienced difficulties in the past with irritability and anger when intoxicated.
284 The accused said he had begun smoking cannabis in his early twenties and used daily up to twice a day. He said that after he was convicted in 2005 of breaching the VRO he ceased cannabis use completely for six years. He said that he had tried other drugs, including methylamphetamine, but had not consistently used other drugs apart from alcohol and cannabis.
285 Dr Patchett noted that when he interviewed the accused in late January and early February 2017, the accused spoke freely and candidly. He maintained good eye contact and established good rapport. His speech was spontaneous with good tonal variation and rhythm. He had no formal thought disorder. He described his mood as 'depressed and hopeless'. He expressed guilt over his behaviour relating to the alleged offences. The accused expressed no abnormal beliefs, delusions, or experiences, hallucinations. Cognitively, he was fully oriented in time, place and person.
286 Dr Patchett made a diagnosis of mental and behavioural disorders due to the use of alcohol and cannabis being dependence, harmful use, intoxication and (probable) psychotic disorder. He also diagnosed the accused with bipolar affective disorder (BPAD). Dr Patchett understands this to be the same disorder that Dr Tanney diagnosed.
287 In summary, Dr Patchett said that the accused has comorbid pathologies being the BPAD and the co‑occurring alcohol and cannabis misuse disorders. Such a comorbid relationship is well recognised. In it, the sufferer uses substances to (mistakenly) feel better and mask mood disturbance, but the substances exacerbate and aggravate the disturbed mental state. Dr Patchett noted in his report:
Furthermore, the use of alcohol and cannabis can precipitate, or at least exacerbate, psychosis as well. It is often difficult to tease out what is an exacerbation of an underlying psychotic disorder and what is in fact a drug induced psychotic state (PB 141).
288 Dr Patchett concluded that the accused had been using heavy amounts of alcohol and cannabis in the weeks leading up to 28 August 2015. This was on the basis of the evidence of Rochelle and the accused's neighbours.
289 In Dr Patchett's view, the accused was also showing signs of psychosis and mood instability during the day and evening of 28 August 2015. In coming to this view Dr Patchett relied upon the accused's account of hearing voices at Scarborough beach, hearing voices as he put the children to bed in the evening and experiencing thought insertion (delusions) with the TV. He also relied upon Antonella's and Detective Constable Garratt's evidence that the accused was heard to speak of god and 'aliens' 'coming to get him'. It was also significant to Dr Patchett that the accused's mood seemed to alternate between anger, crying, paranoia and laughter.
290 Dr Patchett observed that the accused had become increasingly angry in the weeks leading up to, and including, 28 August 2015. He noted that he was abusive, aggressive and threatened assault to Rochelle, Daniel and the police. He was heard by many witnesses to say he was going to burn the house, set fire to Rochelle and set fire to the children. Dr Patchett noted that there is no report of the accused stating why he intended to set fires. Nor has the accused disclosed in subsequent clinical interviews and examinations the reasons why he carried out the actions that led to these charges. Neither do the clinical records of examinations in the three days immediately following the accused's arrest contain any information or statements made by the accused that explain those matters. Specifically, there is no record of delusional misinterpretations or auditory hallucinations that might have affected the accused's decision making at the time.
291 Dr Patchett concluded that the accused's disturbed mental state during the day and evening of 28 August 2015, was a result of a combination of alcohol and/or cannabis intoxication superimposed on underlying mood disorder, which had probably been mildly active for some time. In Dr Patchett's opinion the accused's psychosis was drug induced and that this clinical state would not constitute 'mental impairment' as defined in the Code.
292 Dr Patchett is of the opinion that the accused's disturbed mental state, falling short of a mental impairment as defined by the Code, did not deprive the accused of his capacity to understand what he was doing or of the capacity to control his actions. Further, in the absence of evidence of specific psychotic symptoms that could cause the accused to misinterpret reality, he found no psychiatric evidence to support the notion that the accused lacked the capacity to know that he ought not do the acts in question.
293 Dr Patchett concluded that heavy use of alcohol and cannabis was the primary cause of the accused's disturbed mental state leading up to and on 28 August 2015. He does not believe that it is possible to tease out the relative contributions of either substance and whether one or other of the drug is more to blame, or whether possibly another unidentified drug which the accused may have used was to blame for his disturbed mental state.
294 In evidence‑in‑chief, Dr Patchett pointed out that psychosis is not a diagnosis in itself. He described it as a syndrome or a collection of signs and symptoms. It has some other cause be that bipolar disorder, schizophrenia or drug‑induced states. The hallmarks of psychosis are hallucinations, which are abnormal beliefs that a person holds against evidence to the contrary, and thought disorder. A 'flight of ideas' is a variant of a thought disorder.
295 Dr Patchett is of the opinion that there is evidence of psychosis on 28 August 2015 and 'presumably' on the same evening. However, Dr Patchett said that he had put particular weight on what the accused told him he had experienced at Scarborough on the morning of 28 August 2015. That is, he had experienced auditory hallucinations of a persecutory nature and delusions. I digress to note that this account is not admissible in evidence to prove that the accused experienced those hallucinations.
296 Dr Patchett said that it was not evident that the accused was suffering from BPAD when the accused was admitted to various hospitals in 2005. Dr Patchett is not satisfied that the accused's use of cannabis brought forward his BPAD. Dr Patchett formed the opinion that BPAD had developed at an unknown time between 2005 and 2015. He said that there is evidence around August 2015 that the accused had symptoms such as grandiosity, mild‑hypomania and sleep disturbance characteristic of a mood disorder leading up to August 2015.
297 Dr Patchett is of the opinion that a person can develop psychosis as a result of taking cannabis but there has to be some kind of vulnerability in the person for that to occur. This is because not everybody who takes cannabis develops a psychosis. It may also bring forward in a vulnerable person the onset of BPAD or schizophrenia.
298 Dr Patchett is of the opinion that alcohol itself can cause a psychosis. He acknowledged that it usually causes a psychosis associated with withdrawal, but he said that was not necessarily so. He said that the correlation between alcohol use and BPAD is that a negative effect of alcohol is the risk of violence. Cannabis makes the psychosis worse and alcohol increases the risk of aggression and violence.
299 Relevant to the effect of alcohol on the brain, Dr Patchett made the point that alcohol affects the higher functions of reasoning and judgment, initially. However, someone who is affected by alcohol may still be able to exercise voluntary motor functions even if they have lost high levels functions.
300 Dr Patchett said that the accused had all the indications that he was delirious when he was in Hakea on 29 August 2015 and that he may also have been delirious to an extent on the night of 28 August 2015. Dr Patchett said delirium is the effect of a toxin, a metabolic factor, a disease or something like that which impairs consciousness, usually with quite florid hallucinations and delusions. Whereas psychosis is a subtle insult to the brain and usually occurs in clear consciousness so that other functions of the brain are still working.
301 Dr Patchett is of the opinion that the accused's behaviour by the time he got to Hakea is consistent with a delirium and not consistent with psychosis. That is because Dr Patchett is of the opinion that in a psychosis he would expect to see stable and fixed hallucinations and delusions. Whereas, in a delirium the hallucinations are fluctuating and often bizarre, such as the accused was displaying. Dr Patchett said the accused was not suffering from a delirium when at Scarborough because if he was delirious he would not have been able to undertake complex behaviour such as driving a car or shopping. Dr Patchett also noted that the accused was not oriented to time and place when he arrived at Hakea, which he says is consistent with a delirium. He said that other signs are consistent with either a delirium or psychosis.
302 Dr Patchett believes that it is possible that on 28 August 2015, the accused was intoxicated with alcohol and cannabis and had a developing serotonergic syndrome due to an overdose of paroxetine. This serotonergic syndrome may have developed into a full delirium by the time he was admitted to Hakea prison and then transferred to FSH. Over the next week or more it resolved and, obviously, the accused was no longer intoxicated. Then around 8 or 9 September 2015, the accused's underlying BPAD appeared. That sequence, in Dr Patchett's opinion explains the differing symptoms and signs shown by the accused over that period.
303 Dr Patchett thinks that there were some good indicators that the accused's delirium may have been a serotonergic delirium caused by an overdose of paroxetine. Dr Patchett noted that at FSH the accused had a raised white blood cell count, a raised temperature, tachycardia and creatine kinase which are signs of a serotonergic syndrome.
304 Dr Patchett observed that during the day of 28 August 2015, with increasing drinking and use of cannabis, the accused became intoxicated. However, Dr Patchett is of the opinion that the accused's delusions and hallucinations on that date were the result of a cannabis‑induced psychosis, with cannabis and alcohol intoxication overlayed on that and then a delirium two days later. Dr Patchett agreed that it was artificial to try and separate the causes of the accused's conduct on the evening of 28 August 2015 because there were so many possibilities to explain the accused's conduct.
305 One of the factors which caused Dr Patchett to favour the view that the accused was intoxicated on the evening of 28 August 2015 is his lack of memory of the events of the evening. Dr Patchett said if the accused had a psychosis he would expect him to be able to remember the hallucinations and delusions. Whereas the accused's memory eroded as he consumed more substances and became more intoxicated by alcohol during the course of the day.
306 Dr Patchett agreed that the accused had told him that he was in fear after he experienced the auditory hallucinations at Scarborough. However, Dr Patchett said that he doubted whether the actions on the night of 28 August 2015 were committed in a desire to protect the accused's family. He is not able to say whether there is a connection between the auditory hallucinations and the events of that evening.
307 Dr Patchett is of the opinion that the accused's behaviour on the evening of 28 August 2015 is not explicable only by reason of the accused's BPAD. Neither is it explicable only by reason of intoxication. He cannot say whether the accused would have acted in the manner that he did in the absence of cannabis intoxication. Neither can he say whether the accused would have behaved in the manner that he did in the absence of his cannabis use in the time leading up to and on the day of 28 August 2015. However, the fact that the accused has had only two apparent crisis points, one in 2005 and one in 2015, where he was so unwell that he was admitted to hospital and that on each occasion he was using large amounts of cannabis is, in Dr Patchett's opinion, a pretty strong pointer towards cannabis intoxication causing his disturbed mental state.
308 Dr Patchett is of the view that it is possible to have an acute psychosis secondary to alcohol intoxication. However, he agrees that it becomes less likely when the accused's history of alcohol consumption over a long period of time without any acute psychosis is taken into account. Nevertheless, Dr Patchett says it cannot be ruled out.
309 Dr Patchett also disagreed with Dr Tanney about whether cannabis can in itself cause a psychosis. Dr Patchett is of the view that it can, whereas Dr Tanney is of the view that it cannot. Dr Patchett says that there is a dose related relationship between cannabis and psychosis. The more a person uses the greater the possibility that they will develop a psychosis. Dr Patchett is of the opinion that the hallucinations suffered by the accused on the morning of 28 August 2015 were probably a psychosis induced by cannabis. He does not believe that the underlying BPAD was at such a level where it was 'ready to flip into psychosis'.
310 Dr Patchett disagreed that the severity of the accused's actions on the evening of 28 August 2015 indicated that the primary cause of his conduct was the BPAD rather than intoxication. He maintains that what caused his impaired mental state was intoxication from cannabis and alcohol.
311 Dr Patchett said that the accused's comments on 15 September 2015 about hearing voices of evil spirits telling him bad things about his daughter loosely fits with Dr Tanney's hypothesis but he does not think that the comments strongly added weight to Dr Tanney's theory. In particular, Dr Patchett said that the accused had not linked those feelings with what he did on the evening of 28 August 2015, or explained that because of those feelings he had done what he did on 28 August 2015.
312 Both psychiatrists are of the opinion that the accused was psychotic on the evening of 28 August 2015, when he did the acts said to constitute these alleged offences.
313 Dr Tanney is of the opinion that on the evening of 28 August 2015, the accused had an acute psychotic episode. He appears to conclude that this, in itself, is a major mental disorder. If I am wrong in that regard, it is clear that Dr Tanney is of the opinion that the accused had BPAD. Dr Tanney is of the opinion that the accused's alcohol consumption would not have contributed significantly to the psychosis. He is of the opinion that the accused's cannabis use contributed to the development of the psychosis. He accepted that cannabis was a requirement for the psychosis to present itself. He accepted that the extent of the accused's psychosis at the time would have been impacted by the accused's intoxication. Nevertheless, the primary cause of the accused's psychosis was a mental disorder rather than cannabis or alcohol intoxication.
314 On the other hand, Dr Patchett is of the opinion that a psychosis is a collection of signs and symptoms and it usually has some other cause. Whilst Dr Patchett agrees that the accused suffers from BPAD, he is of the opinion that the primary cause of the accused's psychosis on the evening of 28 August 2015 was the result of a combination of alcohol and/or cannabis intoxication superimposed on an underlying mood disorder, which had probably been mildly active for some time. In his oral evidence he added the possibility that it was also caused by an overdose of paroxetine which developed over time into a delirium. Dr Patchett also does not discount the possibility, based on the accused's own admissions, that the accused had consumed other substances which would have contributed to the development of the psychosis.
315 There is a significant problem with both psychiatrists' evidence because they have relied upon the accused's hearsay accounts of his conduct, feelings and symptoms. However, given that there is also a significant body of direct evidence from the witnesses in respect to the accused's conduct at the relevant time, I accept the evidence of both psychiatrists that at the time the accused did the acts said to constitute the alleged offences he was suffering from a psychosis. He also had BPAD.
316 As indicated above, the psychiatrists are not in agreement as to the extent BPAD was affecting the accused's conduct on the evening of 28 August 2015. Neither do they agree about the causes of the accused's psychosis.
317 Dr Tanney and Dr Patchett are both highly qualified and experienced forensic psychiatrists. I respect both their opinions. However, their opinions have been formed in reliance on hearsay accounts given by the accused which cannot be used to prove the truth of their contents. I also accept that the accused's mental state in and around 28 August 2015 is a very complex matter to untangle. This is because of his differing presentations over time, his underlying mood disorder, his chronic abuse of and intoxication with cannabis, alcohol and perhaps other substances and his claimed lack of memory of many important matters. I accept that both psychiatrists have applied their minds conscientiously to the relevant issues but have arrived at different opinions. In the circumstances I am not able to say on the cause of the accused's psychosis whether one opinion is more reliable than the other. I favour Dr Patchett's opinion that the accused's psychosis was significantly contributed to by acute intoxication with alcohol and cannabis combined with BPAD and the effects on the brain of chronic alcohol and cannabis use. I am not persuaded that the primary cause of his psychosis was BPAD.
318 Both psychiatrists conclude that the accused had the capacities to understand what he was doing and to control his actions. The psychiatrists disagree as to whether the accused was deprived of his capacity to know that he ought not do the relevant acts. In this respect Dr Tanney relies significantly on the accused's account of what occurred at Scarborough beach on the morning of 28 August 2015. He accepts as truthful and reliable the accused's account given for the first time in December 2015 to a nurse that he experienced auditory hallucinations and delusions at the beach which made him fearful for his family and made him believe he needed to protect them by doing the acts relating to counts 1 ‑ 4. Dr Tanney sees these delusions as being independent of the accused's cannabis and alcohol use because he does not believe the accused had used these substances before he experienced those signs that morning. Thus, he says that the accused's BPAD deprived him of his capacity to know that he ought not do the relevant acts.
319 I cannot accept Dr Tanney's opinion in this regard because it is based on a hearsay account given by the accused some months after the relevant time and on an assumption of his state of sobriety.
320 Neither is the hypothesis consistent with what the accused said and did on the evening of 28 August 2015. For example, apart from being overheard to say 'I'm scared' and brief comments about his mother, his sister's address, aliens and werewolves, the accused said nothing to Rochelle or others about needing to kill her and his daughters in order to protect them. His comments to Daniel and Christine beforehand, to Stephanie in the bedroom and to Daniel afterwards are not consistent with the accused holding a delusion that he needed to protect the females in his family by killing them by fire. The one comment about his daughter being too beautiful does not explain his behaviour towards all of them.
321 With respect to the accused's conduct said to constitute count 5, it seems that the accused knew that he ought not to be doing what he did. He wanted Daniel out of the way. He was aware that the police were coming and he was aware they would arrest him because he mimicked being handcuffed.
322 In determining whether I can rely upon Dr Tanney's opinion it is relevant to note that:
(1) a person with delusional beliefs may still have the capacity to know that he ought not do the alleged acts. That is why it is important to have an account from an accused of what he was feeling at the time of the alleged offending and why he did what he did;
(2) Dr Tanney said that the critical issue is that the accused evidenced an abnormal mental state on 28 August 2015, before he began using cannabis. Yet, there is no admissible evidence which enables me to determine when the accused commenced using cannabis on 28 August 2015;
(3) Dr Tanney also relies on a history that the accused had been increasing his use of cannabis and decreasing his intake of alcohol in the days/weeks before 28 August 2015. There is no admissible evidence which enables me to make a finding of a decreasing intake of alcohol; and
(4) whilst an increasing intake of cannabis around and on 28 August 2015, may have been an attempt by the accused to self‑medicate his emerging psychosis, it is equally possible that the accused's psychosis was emerging because of his increased cannabis use.
323 Dr Patchett also accepts the hearsay account given by the accused about the hallucinations and delusions at the beach, but he concludes that those auditory hallucinations and delusions do not explain what occurred that evening and that a more valid explanation for the events of the evening is the accused's intoxication with substances. Dr Patchett is of the opinion that the psychotic symptoms which the accused recalls experiencing on the morning of 28 August 2015 and up until he when he says he has no memory of the events, would not cause the accused to misinterpret reality to the extent that he would not have the capacity to know that he ought not do what he did.
324 I conclude that as I am not able to rely upon Dr Tanney's hypothesis, I am left then with the fact that the accused's conduct on the evening of 28 August 2015 indicates that he was in a very disordered mental state which is quite inexplicable in a person who was otherwise a loving father and not an abusive husband. This behaviour does raise a strong suspicion that the accused would not have committed the relevant acts unless his mental state deprived him of the capacity to know that he ought not do the acts or, in other words, to think rationally of the reasons which would lead ordinary people to consider his acts to be right or wrong.
325 However, the onus is on the accused to satisfy me that he was deprived of that capacity by a mental impairment which meets the relevant statutory definition. Because I cannot rely upon Dr Tanney's hypothesis and because Dr Tanney himself agreed that his opinion that the accused lacked the relevant capacity because of a psychosis related to BPAD depended upon that hypothesis, I can only find that the accused has failed to satisfy me that at the time he did the acts said to constitute the alleged offences he was in such a state of mental impairment being an underlying infirmity of the mind related to disease that he was deprived of the relevant capacity. Even if I accept Dr Tanney's opinion that cannabis only brings on a psychosis in a 'vulnerable brain', the accused has failed to satisfy me that his 'vulnerable brain' deprived him of the relevant capacity. There is an equally available inference that it was the accused's acute intoxication with cannabis and alcohol, superimposed on his BPAD, and the effects of chronic alcohol and cannabis abuse which deprived him of that capacity.
326 Both psychiatrists appear to accept that the accused was intoxicated by cannabis and alcohol, at the very least, on the evening of 28 August 2015. Dr Patchett, in particular, accepts that he may also have been intoxicated with paroxetine and other drugs. Ultimately whether he was or was not so intoxicated is a matter of fact for me to determine.
Was the accused mentally impaired at the time he did the relevant acts?
327 The accused had a psychosis in the schizoaffective spectrum or BPAD at the time he did the acts said to constitute each alleged offence.
Did the accused's mental impairment deprive him of his capacity to know that he ought not do the relevant acts?
328 I am not satisfied on the balance of probabilities that the accused's mental impairment deprived him of any capacity in the Code s 27 and in particular the capacity to know that he ought not do the acts which he did.
329 As I have found that I am not satisfied on the balance of probabilities that the accused's mental impairment deprived him of a relevant capacity, in relation to any of the alleged offences, it is unnecessary for me to consider Dr Tanney's distinction between his capacity at the time he committed the acts said to constitute counts 1 ‑ 4 and count 5.
Does the defence of insanity not apply because the accused intentionally caused himself to become intoxicated?
330 It is unnecessary for me to answer this question because I have concluded that the accused has failed to satisfy me, on the balance of probabilities, of the requirements of the insanity defence. In any event, had he so satisfied me, the insanity defence would not have applied because he has failed to satisfy me, on the balance of probabilities, that he did not intentionally cause himself to become intoxicated at the time he did the relevant acts. I am satisfied on the balance of probabilities that the accused was intoxicated by at least cannabis and alcohol when he did the acts said to constitute the alleged offences.
331 I rely upon the following uncontradicted evidence to come to this conclusion:
(1) Rochelle's evidence about the accused's usual daily consumption of cannabis and alcohol leading up to 28 August 2015;
(2) Rochelle's evidence about the accused's consumption of alcohol and cannabis on 28 August 2015;
(3) Christine's opinion that the accused appeared to her to be significantly intoxicated on 28 August 2015; and
(4) the presence in the shed at unit 1 of cannabis and cannabis smoking implements.
332 My finding that the accused was intoxicated is not inconsistent with my finding that the accused suffered from BPAD. That is, a person may be, and the accused was, concurrently intoxicated by drugs and alcohol and suffering from the symptoms and signs of BPAD.
333 The accused made comments on 2 September 2015 to a nurse about using cannabis daily for the past year, meaning that he used it from waking until he went to bed, and to the effect that he may have used methamphetamine recently. I do not take those comments into account except to note that in respect to his cannabis use they are consistent with the evidence which I have relied on.
334 Neither do I make a positive finding that between 28 ‑ 30 August 2015 the accused was intoxicated with paroxetine. I find that there is admissible evidence from Dr Patchett to cause me to suspect that he was so intoxicated but insufficient evidence to enable me to make a finding that he was.
335 I accept that because of the accused's use, in particular of alcohol, he would have built up a tolerance for that substance. Nevertheless, the amount of alcohol and cannabis which the accused consumed on 28 August 2015, added to the effects of earlier use, would have had an overpowering effect on his mind. The fact that he could still perform voluntary motor functions and had some other lower end functioning does not cause me to doubt that he was intoxicated.
336 Although Dr Tanney is of the opinion that the accused was using cannabis and alcohol to self‑medicate his underlying mood disorder, his consumption of those substances, to the extent that he became intoxicated, was voluntary and intentional. This is particularly so as he understood, as shown by his letter to Rochelle, that there was some connection between cannabis use and his mental state. He also believed that he had suffered blackouts and aggression in the past as a result of the use of alcohol and/or cannabis.
337 I find the accused guilty of each of the five alleged offences.
[1] This appears to be a reference to Antonella Tonaro.
[2] Unfortunately, the Frankland Centre assessment notes are handwritten. Only a copy of them is in evidence. The copy is not clear enough for me to read everything which the accused said or what was noted about him.
[6] From herein I will call this disorder bipolar affective disorder (BPAD) as Dr Tanney and Dr Patchett agree that there is no distinction between their diagnoses in this respect and this is the name used by Dr Patchett.
(1961) 108 CLR 642
(1933) 55 CLR 182
(1990) 171 CLR 30
(1952) 86 CLR 358
(1933) 55 CLR 1828