THE STATE OF WESTERN AUSTRALIA -v- IHALAHEWA [2020] WASC 386 (26 October 2020)

(2) The deceased was killed on 3 February 2019 at 15B Danehill Way in Balga.

(3) The cause of death was stab wounds to her neck and chest.

(4) [The accused] did the act(s) which caused her death.

(5) At the time of doing those act(s), [the accused] intended to cause her death.

1. Section 32 of the Evidence Act provides that an accused person, either personally or by his counsel or solicitor, in his presence, may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence. The formal admissions in this case were contained in a document signed by the accused and were stated aloud by his counsel during her opening address. They are sufficient proof of the facts admitted, but that does not preclude the State from relying also on other evidence that tends to prove those facts.

1. Prior to the commencement of the trial, the parties had agreed that the State's case could be put before the court by way of an Agreed Statement of Relevant Events,[2] the tender of the statements of various specified witnesses and a number of other specified materials contained in the prosecution brief (which consists of two bound volumes),[3] and the tender of an Agreed Book of Additional Materials (including electronic items).[4] By those means, the court would have before it evidence of the background of the accused, the history of the relationship between the accused and the deceased, the accused's movements on the day of the offence and various other matters relevant to the accused's state of mind leading up to the offence. In fact, much of the material would be relevant also to the accused's case.
2. Accordingly, after the accused was arraigned, the prosecutor informed me that he intended to read aloud the Agreed Statement of Relevant Events by way of outlining the facts, and he would then tender the materials to be relied on in the prosecution brief and any further relevant materials. The State would then call the expert evidence on which it relied.
3. Counsel for the accused noted she would tender the document containing the formal admissions pursuant to s 32 of the Evidence Act[5] in an opening address and that, at the conclusion of the State's case, the defence would call the expert evidence on which the accused relied in support of the insanity defence.
4. Section 93 of the CPA provides that if an accused pleads not guilty to a charge on account of unsoundness of mind and the judge is satisfied that the only fact in issue is whether the accused is not criminally responsible under s 27 of the Criminal Code, the judge may decide the issue on any evidence and in any manner the judge thinks fit, if the prosecutor consents and the accused does not object to the judge doing so and if it is in the interests of justice to do so. Having regard to s 93 and the positions taken by the parties, I was satisfied that it was in the interests of justice to receive into evidence the Agreed Statement of Relevant Events, the witnesses' statements and the other specified materials (which I will list later in these reasons), and to then hear the evidence of the expert witnesses to be called by the State and the defence, for the purpose of determining whether the accused was of unsound mind in accordance with s 27 of the Criminal Code. The reports prepared by those experts were included in the documentary materials to be tendered.
5. The trial proceeded accordingly. The Agreed Statement of Relevant Events, the witnesses' statements and the other specified materials were received as exhibits. The State then called Dr Adam Brett, a consultant forensic psychiatrist, to give evidence.
6. At the conclusion of the State's case, the accused elected not to give evidence. However, the defence called Dr Victoria Pascu, also a consultant forensic psychiatrist, to give evidence.

Statutory requirements in relation to trials by judge alone

1. Section 120(1)(a) of the CPA provides that I may make any findings and give any verdict the jury could have made or given if the trial had been before a jury.
2. Section 120(2) of the CPA provides that my judgment must include the principles of law that I have applied and the findings of fact on which I have relied. It is necessary, therefore, for me to state the legal principles that I must apply in determining the charge.

Principles of law applicable in this case Burden and standard of proof generally

1. The accused is presumed to be innocent of the offence charged.
2. The burden of proving the accused's guilt of the offence is on the State. The standard to which the State must prove the charge before the accused can be found guilty is beyond reasonable doubt. The State must prove each of the elements of the offence beyond reasonable doubt. If the State does not prove each of the elements beyond reasonable doubt, the only proper verdict is one of not guilty.
3. However, as will appear below, on a charge of murder, where the accused relies on the defence of unsoundness of mind, the defence comes to be considered once the State has established all of the elements of that offence other than intention. If the defence is established, the proper verdict is not guilty on account of unsoundness of mind.
4. The facts are largely not disputed by the accused. Where the facts are uncontroversial, it makes the fact‑finding task easier, but there remains a need for the court to be satisfied of the prosecution case beyond reasonable doubt in relation to the elements of the offence before the accused could be found guilty, or, as in this case, before it is necessary to determine the issue of unsoundness of mind. The accused does not have to prove anything in respect of the elements of the offence.

1. The evidence in respect of both the events that resulted in the deceased's death and the accused's state of mind consists of admissions made by the accused and circumstantial evidence. To some extent, the finding of facts about those matters will depend on the drawing of inferences.
2. In determining what inference or inferences to draw from any particular aspect of the evidence, the evidence must be considered as a whole, not in isolation or piecemeal.[6]
3. Where it is necessary to draw inferences as to essential facts, I may draw an inference against the accused only if I am satisfied that it is the only reasonable inference available to be drawn. I must consider, therefore, whether there are any reasonable alternative inferences which would be consistent with the accused's innocence. This reflects the requirement that the State must prove each element of the charge beyond a reasonable doubt. However, to the extent that proof of the insanity defence depends on the drawing of inferences, the onus is on the accused to satisfy me the inference should be drawn on the balance of probabilities.

1. At trial, two experts gave evidence, which was largely uncontested. Whilst neither a jury nor a judge sitting alone is bound to accept and act upon expert evidence, where there is no evidence or circumstance to contradict or cast doubt on that evidence, it would be unreasonable to reject the evidence.[7] In a case concerning a defence under s 27, where determination of the issue depends very much on the evidence of expert psychiatrists, a verdict cannot be given contrary to that evidence if there is no evidence or circumstance to contradict or cast doubt on it.[8] A factor that may be taken into account in deciding what weight to give to expert evidence is whether it incorporates assumptions not founded upon the evidence in the trial on which the expert's opinions rely.[9] More particularly, if an expert relies on factual matters contained in an account of relevant events given to him or her by the accused, the weight to be given to the expert's opinion, or some particular part of it, will depend on whether I accept those facts to have been proved.
2. In this case, where I have departed from the expert evidence, I will state why I have done so. For the most part, I have accepted the evidence of the experts. The question is what conclusions I can draw from it, having regard to the other evidence in the case.

1. The accused elected not to give evidence at the trial. Consistently with the principles in respect of the presumption of innocence and the burden and standard of proof, an accused person is under no obligation to give or adduce evidence. I draw no adverse inference against the accused in respect of his election not to give evidence.

1. The accused took part in an electronically recorded interview with the police. His account in that interview is evidence upon which I can make findings of fact, and it comes to be assessed in the same manner as I would assess the evidence of a witness in the trial. I have had regard to the fact that the account the accused gave to the police has not been tested by cross‑examination. I have also had regard to the accused's demeanour in answering questions, although I am mindful of the limitations of demeanour as a guide to credibility or reliability. Further, if I find that the accused was suffering from symptoms of mental illness at the time of the alleged offence and/or at the time of the police interview, and that those symptoms affected the orderliness of his thoughts and the reliability of his memory, those factors will naturally be relevant to the weight I give to his answers during the interview.
2. If an accused's account during a police interview is exculpatory, the general principle is that I cannot make a finding of guilt if the account gives rise to a reasonable doubt about his guilt. Even if I do not believe his account, it does not follow necessarily that the accused must be found guilty. His account would be put to one side and I would consider the balance of the evidence in the trial to determine if I am satisfied beyond reasonable doubt that the accused is guilty of the offence charged. However, in the circumstances of this case, given the formal admissions and the accused's admissions in his interview, there is a sufficient basis on which to find beyond reasonable doubt that the accused is guilty of murder if I were to reject the insanity defence. As the accused has the burden of establishing that defence, it is not a question of whether his account leaves me with a reasonable doubt about any relevant issue, but whether his account, either alone or in combination with other evidence, satisfies me on the balance of probabilities that he was of unsound mind in the relevant sense, as I discuss below.

1. I bear in mind that I must not allow prejudice or sympathy to play any part in my determination of the charge. The case concerns the tragic loss of the life of someone who had left her family in Sri Lanka to make a life with the accused in Australia and who was entitled to trust the accused to care for her. The evidence also establishes that the accused was suffering from mental illness that caused him distress. These are matters that have relevance in the determination of the facts, but they must be assessed in a dispassionate manner.

1. I must decide the case solely on the basis of the evidence produced in the trial, and not on any other matters.
2. I must not guess or speculate about matters that are not in evidence or look for theories that are not supported by the evidence.

1. In order to prove the accused committed the offence of murder, the State must prove beyond reasonable doubt all of the following elements:

(1) the accused was the offender, being the person who did the relevant act or acts;

(2) the accused killed the deceased, in that, by his act or acts, he caused her death directly or indirectly;[10]

(3) the killing of the deceased by the accused was unlawful; and

(4) the accused intended to cause the death of the deceased, or intended to cause a bodily injury to the deceased that was, objectively, of such a nature as to endanger, or be likely to endanger, the deceased's life.

1. The accused formally admits that the deceased was killed by stab wounds to her neck and chest and that he did the acts which caused the deceased's death. The accused's admissions mean that the first two elements are not in issue.
2. As for the third element, a killing is unlawful unless it is authorised or justified or excused by law.[11] The accused's case is that he is not criminally responsible for the killing of the deceased (in other words, he is not liable to punishment as for an offence[12]) because he was of unsound mind, as provided for in s 27 of the Criminal Code. He does not suggest that his killing of the deceased was lawful (i.e. authorised, justified or excused) on any other basis provided for by law.
3. The central issue in this trial is whether the accused is not criminally responsible for killing the deceased, because he was of unsound mind, in the relevant sense, at the time he did the acts that resulted in her death. It is necessary to decide that issue before considering whether the accused had the relevant intention necessary to establish the offence of murder.[13] Only if the insanity defence under s 27 is not established will the question arise, whether the State has proved that the accused had the relevant intention.[14]
4. As I noted earlier, the accused formally admitted that, at the time of doing the acts which caused the deceased's death, he intended to cause her death. If the insanity defence is not established, the admission would be sufficient proof of the accused's guilt of murder. His case was not put on the basis that, in the circumstances of this case, the accused's mental illness would otherwise be relevant to the question of whether he had the capacity to form, or actually formed, an intention to kill or cause a life‑threatening injury to the deceased.[15] It may be that the accused's admission of an intention to cause the death of the deceased is relevant to my consideration of the insanity defence, if it informs the question of whether the accused's mind was disordered in the manner relevant for the purposes of s 27. However, if the insanity defence is established, there will be no occasion to make a finding in respect of the last element of the offence of murder.

1. I now turn to the law specifically concerning the defence of insanity.
2. 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.[16] The accused has the burden of proving that he was not of sound mind at the time that he did the act which is alleged to constitute the charged offence. The accused must prove that he was not of sound mind on the balance of probabilities.[17]
3. Section 27 of the Criminal Code provides as follows:

(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.

(2) A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.

1. Accordingly, under s 27, mental impairment can either relieve a person of criminal responsibility, if it has deprived the person of one of the relevant mental capacities, or it can affect the extent of the person's criminal responsibility if the person was not deprived of any of the relevant mental capacities, but was acting in accordance with delusional beliefs caused by the mental impairment. In this case, the accused relies on s 27(1). His case is that his mental impairment deprived him of the capacity to know that he ought not to do the act which caused the deceased's death. Although it is part of that case that the accused was affected by delusions as a result of the mental impairment, it is not the accused's case that s 27(2) would operate to reduce his criminal responsibility in any respect if he was not deprived of the capacity to know that he ought not to do the act that resulted in the deceased's death. In other words, in the absence of proof that he was deprived of one of the relevant mental capacities, if the real state of things had been as he believed them to be in accordance with his delusions, there was nothing in those circumstances to relieve him of, or reduce, his criminal responsibility for his conduct.

1. The term mental impairment is defined in s 1(1) of the Criminal Code to mean 'intellectual disability, mental illness, brain damage or senility'. 'Mental illness' is defined to mean 'an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.'[18]
2. What constitutes a mental illness is a matter of law, whereas whether or not the facts disclose a state of mental illness is a question of fact.[19]
3. In The State of Western Australia v Jones,[20] Jenkins J noted, referring to comments of King CJ in R v Radford,[21] that the definition of 'mental illness' in s 1(1) of the Criminal Code reflects the meaning of 'disease of the mind' in the common law principles concerning the defence of insanity. The terms are synonymous. As Jenkins J said, summarising the principles stated by King CJ in Radford, a temporary disorder or disturbance of an otherwise healthy mind caused by external factors is not properly regarded as a disease of the mind. However, a temporary disorder, even of short duration, that results from an underlying pathological infirmity of the mind, which can properly be termed mental illness, will come within the meaning of 'mental impairment'. Mental illness does not include 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self‑control and impulsiveness'.[22]
4. It is not in dispute that schizophrenia and schizophrenia‑like illnesses causing psychoses are mental illnesses for the purpose of s 27 of the Criminal Code.

1. The accused contends that, at the time he did the act or acts that resulted in the deceased's death, his mental illness deprived him of the capacity to know that he ought not to do the act or acts.
2. I respectfully agree with and adopt the analysis of the law and the conclusions reached by Jenkins J in The State of Western Australia v Marotta,[23] which her Honour reiterated in Jones,[24] in respect of this aspect of the insanity defence. As her Honour said, the reference to a person being deprived by mental impairment of the capacity to know that he ought not to do the act that constitutes the offence is generally considered to be equivalent to the alternative formulation under the M'Naghten rules at common law that the accused was labouring under such a defect of reason 'that he did not know that he was doing what was wrong'.[25] In fact, as appears in Stapleton,[26] the opinion in M'Naghten's case used the phrases 'act ... that he ought not to do' and 'act that was wrong' synonymously. In Stapleton, the High Court did not draw a distinction between the two formulations. Similarly, in Evans v The State of Western Australia[27] the Court of Appeal proceeded on the basis that the principles in respect of the common law formulation of this aspect of the insanity defence applied when considering the issue under s 27.
3. The starting point tends to be the jury direction given by Dixon J on a trial of murder in the original jurisdiction of the High Court in R v Porter,[28] where his Honour said in respect of this aspect of the insanity defence:[29]

It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression 'know,' ' knew that what he was doing was wrong.' We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.

1. Dixon J further said that what is meant by 'incapacity' in this context is 'not that he reasoned wrongly, or that being a responsible person he had ... unsound ideas, but that he was quite incapable of taking into account considerations which go to make right or wrong'.[30]
2. In Stapleton, the High Court held that the capacity to know that one ought not to do an act does not require knowledge that the act is wrong in the sense that it is contrary to law; nor does knowledge that the act is punishable by law necessarily mean that a person has the capacity to know he ought not to do the act.[31] What is required is that the accused knows right from wrong according to reasonable standards, not legality from illegality.[32] The court acknowledged that, 'from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable.'[33] However, the danger of conflating the two ideas would arise if, notwithstanding that a person has complete incapacity to reason as to what is right or wrong because of mental illness, 'he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.'[34] The court identified the correct approach and the risk of a jury reasoning incorrectly in the following passage:[35]

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.

1. In Evans, McLure P said there was no suggestion of any material distinction between the common law test as stated by the High Court in Stapleton and s 27 of the Criminal Code.[36] Relevantly, her Honour 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'.[37] Her Honour considered that, in the context of this capacity, the term 'know' means 'understand', 'appreciate' or 'comprehend'. Her Honour observed that whether an act is right or wrong is determined by reference to an objective standard. The question is whether mental impairment resulted in the accused having a complete incapacity to reason as to what was right or wrong by that objective standard.[38] Her Honour said:[39]

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.

1. Similarly, Wheeler JA (Owen JA agreeing) in Evans considered that the principles to be extracted from Stapleton focussed on the following two issues:[40]

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. As the High Court observed, from a practical point of view it often may not matter much, because in relation to serious offences the two ideas 'are not easily separable'. However, in cases where, as here, the distinction may arise, it should be made. 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.

1. In relation to the references in the authorities to whether an accused could reason with a 'moderate degree of sense and composure' or 'calmness', Wheeler JA made the following comments in Evans, which I take into account:[41]

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.

1. I will apply the principles I have outlined in this section when considering whether the accused has established on the balance of probabilities that, as a result of mental impairment, he was deprived of the capacity to know that he ought not to do the act that resulted in the deceased's death. Without limiting the full breadth of those principles, I respectfully agree with the summaries arrived at by Jenkins J in Jones[42] and Derrick J in The State of Western Australia v Knock,[43] which may be combined into the following proposition: A person will be deprived of the capacity to know that they ought not to do the act that constitutes the offence if they have a complete incapacity to understand, appreciate or comprehend that the act is wrong according to ordinary standards (as distinct from unlawful), in that the person is incapable of thinking rationally of the reasons which would lead ordinary people to consider the act right or wrong by ordinary standards, as opposed to the law.

1. As will appear below, the psychiatric evidence in this case was to the effect that it could not be said with any certainty that, at the time he inflicted the fatal injury to the deceased, the accused was deprived of the capacity to control his actions as a result of his mental impairment, for instance because the mental impairment caused him to act impulsively. It is not surprising, then, that the accused did not rely on a lack of the capacity to control his actions as a basis for submitting that he was not criminally responsible on account of unsoundness of mind. However, aspects of the psychiatric evidence did suggest that the accused's psychotic symptoms at the time he killed the deceased may have deprived him of the capacity to control his actions. In those circumstances, it will be necessary to consider the issue and I will have regard to the following statements of the law about that issue.
2. As with the previous issues, I respectfully agree with and adopt the analysis of the law and the conclusions reached by Jenkins J in Marotta,[44] which her Honour reiterated in Jones,[45] in respect of this aspect of the insanity defence. Her Honour adopted the statements of law in respect of the issue in the High Court decision of R v Falconer[46] and reached the following conclusions:[47]

I conclude that the High Court has given what some authors have described as a 'very narrow sphere of operation' to the second limb of s 27. A person is deprived of the capacity to control his actions where his actions occur independently of the exercise of his will and where the person cannot exercise the power of choice to act.

This construction of the second limb of s 27 does not exclude those cases where a person is by their mental [illness] deprived of the capacity to control their actions in the sense that they are deprived of the capacity to refrain from doing an act or in the sense that the effect of their mental [illness] on their mind deprives them of the capacity to choose to act.

In the case of the effect of mental [illness] on a person's capacity to control their actions the focus will often be on the extent to which their delusions or hallucinations controlled their actions or in the words of Sir Samuel Griffith deprived them of the power of choice.

It will involve a consideration of the extent to which their mental [illness] compromised their ability to will their actions or to decide not to act. But it is necessary to bear in mind that ... s 27 only applies if the accused is deprived of capacity to control actions, as opposed to something less than that such as having a significantly impaired capacity to resist an impulse or an emotion.

1. In light of the accused's admissions and the agreed facts, the issue at trial was whether the evidence as a whole, but with particular reference to the expert evidence, established on the balance of probabilities that the accused was not criminally responsible for the murder of the deceased on account of unsoundness of mind. That issue requires the determination of the following matters:

(1) Was the accused mentally impaired at the time that he killed the deceased?

(2) If the accused was mentally impaired at the relevant time, did his mental impairment deprive him of one of the capacities referred to in s 27(1) of the Criminal Code, relevantly, the capacity to know he ought not to do the act?

1. As I have already noted, as a question also arose on the expert evidence as to whether the accused was deprived of the capacity to control his actions, I will consider that issue.
2. It was not in dispute that, at the relevant time, the accused suffered from a mental impairment. As will appear from the agreed facts and in my discussion of the evidence, that conclusion is well supported by the evidence presented at trial.
3. The question of whether the accused was deprived of a relevant capacity requires consideration of what is known of the circumstances in which he killed the deceased, the evidence concerning his mental state leading up to and immediately after the incident, and the opinions of Dr Brett and Dr Pascu as to the accused's mental capacity, based on that evidence and the surrounding circumstances and on their interviews with the accused. However, as I discuss below, there is an issue in respect of weight to be given to what the accused said in his interviews with Dr Brett and Dr Pascu, which has a bearing on the weight I give to particular aspects of their opinions.

1. Although the State relied on the Agreed Statement of Relevant Events, it also tendered a large volume of material, including a substantial part of the prosecution brief, which was received as Exhibit 3.[48] Materials that are relevant to my findings of facts will be referred to in the course of these reasons as they become relevant. It is sufficient at this stage to summarise the categories of materials tendered.
2. The materials tendered by the State from the prosecution brief included:

(1) a statement from the accused's brother, Gayan Priyanga Ihalahewage, who provides background information in relation to the accused, his history of mental illness and his relationship with the deceased. More particularly, he speaks of a deterioration in the accused's condition immediately before the alleged offence. He controlled the provision of medication to his brother for his mental illness, and he identified two packets of tablets and scripts found in the accused's home by police as the medication the accused was supposed to take, and the scripts for that medication;

(2) statements from two of the accused's neighbours who lived next door. They provide background information concerning the accused from the time he moved into his unit and the observations they subsequently made of his relationship with the deceased. They also heard sounds from the accused's unit at the time of the alleged offence;

(3) a statement from the accused's duty manager at his place of employment. He saw the accused on the night of 2 February 2019;

(4) statements of police officers who were involved in the arrest of the accused and in enquiries conducted as part of the investigation;

(5) the interim post‑mortem examination report, post‑mortem examination report and supplementary post‑mortem examination report prepared by the forensic pathologist who conducted the post-mortem examination of the deceased's body;

(6) reports in respect of further medical and scientific post‑mortem investigations concerning toxicology, histopathology, neuropathology and odontology in respect of the deceased;

(7) the statement of a registered nurse who took forensic samples from the accused;

(8) transcript of the accused's electronic record of interview with the police (EROI);

(9) discharge summaries from Sir Charles Gairdner Hospital and Swan District Hospital dated 23 May 2014 and 30 May 2014 respectively, concerning the accused's admission to those hospitals for a mental health issue;

(10) records from the Frankland Centre at Graylands Hospital relating to the accused's admission there on 4 February 2019 after he was arrested and his subsequent treatment; and

(11) the reports of Dr Victoria Pascu and Dr Adam Brett, the consultant forensic psychiatrists retained to examine the accused and provide an opinion on the issues arising from the insanity defence.

1. The various witness statements relied on by the State were also read into evidence by the prosecutor.
2. As I noted earlier, the State also tendered an Agreed Book of Additional Materials.[49] That volume included:

(1) records from the accused's general Practitioner (GP);

(2) the housekeeping roster from the Mercure Hotel,[50] where the accused was working on 2 February 2019;

(3) a transcript of the 000 call made by the accused after the alleged offence; and

1. The Agreed Book of Additional Materials was accompanied by a USB flash drive,[51] which contained electronic materials, including:

(1) CCTV footage of the accused at the Pier Street Carpark when he was trying to retrieve his car from the carpark after work on the morning of 3 February 2019;

(2) CCTV footage from the taxi the accused took home on the morning of 3 February 2019;

(3) the audio recording of the 000 call made by the accused; and

1. The State also tendered the toxicology report with respect to the accused,[52] a further plan of the accused's house[53] and a report of Dr Griffiths and Dr Ho (from the Frankland Centre) dated 24 October 2019,[54] which was the most recent update in respect of the accused's treatment at the Frankland Centre.
2. As well as the formal admissions signed by the accused,[55] the defence tendered a bundle of reports with the title page 'Table of Additional Documents for Dr Pascu.'[56] As the title indicates, the bundle consisted of materials that had been provided to Dr Pascu, and relied upon by her, for the purpose of preparing her report for these proceedings.

Admissibility of evidence of the accused's statements other than in the EROI

1. There is an issue as to the admissibility of, and, if admissible, the weight to be given to, various statements made by the accused out of court in relation to the alleged offence and his symptoms and feelings at various times. The issue does not arise as a result of any objection made by either party, but as a result of the need to analyse the evidentiary basis for the opinions given in evidence by Dr Brett and Dr Pascu in the trial. It was acknowledged by both parties that the court can act only on admissible evidence in determining the weight to be given to those opinions. It is convenient to deal with the issue now, as its resolution will affect the extent to which I rely on the Agreed Statement of Relevant Events and my analysis of the opinions of Dr Brett and Dr Pascu in due course.
2. Statements made by an accused out of court will not be admissible if they come prima facie within the hearsay rule, unless they fall within an exception to that rule. Evidence is inadmissible hearsay if it consists of an extra‑curial statement that purports to state a fact and is relied upon for the truth of the statement; in other words, to prove that fact. Evidence of statements made by an accused or some other person involved in events relevant to the alleged offence (for instance, in this case, the deceased) will not be inadmissible as hearsay evidence if they are relied upon not for the truth (or testimonial) content of the statements, but rather as circumstantial evidence from which inferences might be drawn, for instance about the person's state of mind or the relationship between two people.
3. Exceptions to the hearsay rule include: admissions made by an accused about the alleged offence, and any exculpatory parts of a mixed statement that contains such admissions; statements that are made as part of the res gestae of the relevant events; and statements contained in records that come within s 79C of the Evidence Act.
4. Another exception to the hearsay rule applies to statements made by a person about his bodily (including mental) feelings and symptoms contemporaneously at the time when his state of health was in question. It is necessary for the statements to have been made at the time the person was experiencing the feelings or symptoms or soon afterwards.[57] As to when is 'soon' after the relevant event, Jenkins J noted in Jones that contemporaneity is the touchstone of admissibility of evidence on this basis.[58] As appears from the discussion in Ramsay v Watson, the rationale for the exception may be elusive.[59] It appears to have been born out of necessity, as it may be the best or only evidence of what a person was feeling or experiencing in terms of physical or mental symptoms at a particular time. However, that serves to emphasise the need for temporal connection between the statement and the experience the person is describing.
5. In Ramsay v Watson the High Court identified another basis upon which an expert medical witness can give evidence of statements made by a patient or person they were examining.[60] An expert medical witness may give evidence of a history given to him by a patient (or person being examined) and it 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.[61] The patient must confirm the history in evidence if it is to be relied upon to prove the truth of that history. If the patient does not give evidence to confirm what he said to the medical expert out of court, the medical expert's opinion 'may have little or no value, for part of the basis for it has gone'.[62] Each case depends on its own facts.
6. Finally, in terms of principles, if a fact contained in a statement made by an accused (or some other person involved in events relevant to the alleged offence) is not in dispute between the parties, the making of the statement by the accused (or other person) may be relevant to the unfolding of the narrative and to explain behaviour or events that took place contemporaneously with the making of the statement or subsequently.

1. To the extent that the accused made statements in the EROI about his mental state (including beliefs about and feelings towards the deceased) and physical symptoms leading up to and at the time of the alleged offence, they are either part of or connected to his admissions in respect of the alleged offence or part of the contemporaneous circumstances of his participation in the interview (in that they may reveal his state of mind during the interview), which may be taken into account in assessing his answers during the interview. In each case, the statements are admissible.
2. As will appear when I outline the accused's account given in the EROI, it can properly be described as a mixed statement. It contains admissions that he killed the deceased, and that he intended to kill her, and statements in respect of his mental state, in particular his beliefs concerning the deceased, that could be regarded as exculpatory or self‑serving, in that they provide the foundation for the insanity defence on which he relies. All of the statements are admissible as an exception to the hearsay rule.[63] However, the question of what weight I give to any part of the accused's account is a matter for me to decide as the trier of fact. I may give less weight to exculpatory statements than to admissions.[64] That is a matter of assessment, having regard to the whole of the interview and other evidence.

Evidence of statements made by the accused before the alleged offence

1. Some of the evidence in the materials tendered by the State and the defence includes statements made by the accused at various times before the alleged offence, including several years earlier. Those materials include the statement of the accused's brother, medical records from the accused's admission to two hospitals in 2014 and statements made by the accused to his neighbours.

1. In his statement, the accused's brother outlines observations he made of the accused's behaviour in the past, including statements made by the accused about beliefs he held. I am satisfied that the statements to which the accused's brother refers are relevant and admissible as evidence from which an inference can be drawn that the accused was suffering from mental illness and the onset of psychotic symptoms at the times to which the accused's brother refers. That speaks to the longstanding nature of the accused's mental illness, which is relevant to the opinions given by Dr Brett and Dr Pascu. The statements are not relied upon to prove the truth of the accused's beliefs. Rather, they are relied upon as delusional beliefs.
2. I note that the accused's brother also speaks of things said by the deceased concerning the accused's behaviour, particularly on the day before the alleged offence. The truthfulness of what the deceased said is not in dispute. The fact that the deceased demonstrated concern about the behaviour of the accused (her husband with whom she was living) may be a relevant piece of circumstantial evidence, which, in combination with other evidence, may tend to establish the state of the accused's mental health at the time of the alleged offence. It is also relevant circumstantial evidence about the reality of the deceased's feelings towards the accused, which bears upon the question of whether beliefs he held about her were delusional and demonstrative of psychosis.

1. The materials include the hospital records from Sir Charles Gairdner Hospital and Swan District Hospital dated 23 May 2014 and 30 May 2014 concerning the accused's admission to those hospitals after an episode that raised concerns about his mental health.[65] The records were tendered by the State. The defence did not object to the records being received into evidence as a reliable record of the events and conversations recorded and the opinions of medical practitioners (including nurses) expressed in them. They are part of the materials on which both Dr Brett and Dr Pascu relied in ascertaining the accused's history of mental health.
2. The 2014 records are admissible as business records under s 79C of the Evidence Act for the truth of the observations recorded by the author of the notes in each instance, and that the conversations in the notes occurred as recorded. As the records were received without objection, there is no need to discuss the provisions or operation of s 79C further. However, it is necessary to note that under s 79C, it is the statement made by the author of the record that is received for its truth. The document is not received into evidence to prove the truth of statements made by the accused to, or in the presence of, the author. However, what the accused said is admissible to explain the actions that were taken during his admission at that time. It is also admissible if, circumstantially, it tends to establish that he was showing symptoms of a psychosis or other mental illness.

1. As with other historical evidence that includes statements made by the accused, the evidence of statements made by the accused to his neighbours prior to the alleged offence was received without objection. Again, the truthfulness of those statements, which mainly concern the accused's sexual preferences and the circumstances in which he married the deceased, is not in dispute. Those matters are broadly relevant to the context in which the accused is alleged to have killed the deceased. They were referred to by him in the EROI. I am prepared to rely on the neighbours' evidence about the statements made by the accused in respect of those matters as relevant circumstantial evidence that sheds light on the accused's relationship with the deceased.

1. Soon after the alleged offence, the accused called the 000 emergency number and reported that his wife had died.[66] During the call, he made two brief and somewhat confusing statements about what had happened. Prima facie, they appear to suggest that the deceased started the violence. The statements are not part of the res gestae of the alleged offence, as the incident had concluded and the accused was purporting to give a historical narrative. Arguably the statements amount to a mixed statement that include an admission against interest coupled with an exculpatory explanation. However, in my opinion, the meaning of the accused's brief statements during the call is uncertain.
2. In the absence of evidence from the accused to explain what he meant, I do not consider that I can give any weight to the statements. The fact that the accused made the call may be a relevant consideration in determining his state of mind at the time, and it provides context for the fact that the attending police were aware that the accused's wife was dead and that a knife had been involved. Otherwise, it is not part of the defence case that the deceased started the violence. Further, the defence did not rely on the accused's statements during the call as evidence that was probative of the insanity defence.

Statements to police officers who attended the scene

1. One of the police officers who attended the scene in response to the 000 call, Constable Lord, refers to a brief statement made by the accused that he was very tired and had not slept for days. That was in response to Constable Lord asking the accused if he was 'ok', when Constable Lord noticed that the accused's legs were shaking. The accused's explanation is admissible as a contemporaneous statement about his physical state at a time proximate to when the offence is alleged to have occurred. It tends to support subsequent claims he made in the EROI about his lack of sleep.

Statements to first attending doctor and upon admission to the Frankland Centre

1. After the EROI, the accused made statements about his mental state at the time of the alleged offence to a number of medical staff on 4 February 2019. He first spoke to a medical practitioner, Dr Bryan Jones, about that matter when he was assessed in the detention area of the courts for the purposes of a report to be provided to the magistrate, who was to preside over the accused's first appearance after he was charged.[67] The accused subsequently spoke about the matter to medical staff at the Frankland Centre upon being admitted there the same day.[68] There are then progress notes for the days and weeks that followed while the accused was being treated in the Frankland Centre. Of significance, there are notes of an assessment made in the morning on 5 February 2019, which contain descriptions given by the accused of his mental state and psychotic phenomena he was experiencing at that time.
2. In light of the principles I have discussed, the question to be determined in respect of these medical records is whether the statements made by the accused about his sensations, experiences and symptoms at the time of the alleged offence were made soon enough after the relevant event as to satisfy the requirement for contemporaneity, so as to come within the exception to the hearsay rule concerning such matters. If not, then the statements would come within the second category discussed in Ramsay v Watson and would not be admissible to establish the truth of those statements. The accused would need to give evidence of those matters before they could be found as facts on which subsequent expert opinions might be based.
3. The question of whether the statements were made soon after the relevant event is a matter of judgment. A relevant consideration is whether the accused's statements to the medical staff within a day or so of his participation in the EROI, indicate a perseverance of psychotic symptoms. As I will explain in due course, that conclusion is open. On balance, I am of the opinion that the statements made by the accused to Dr Jones and upon his admission to the Frankland Centre on 4 February 2019 are admissible as evidence of the fact he was experiencing the sensations and symptoms at the time of the alleged offence. However, the weight I give to those statements must be assessed having regard to all the circumstances, including the accused's account in the EROI.
4. The accused's statements to medical professionals at the Frankland Centre subsequent to 4 February 2019 as to his feelings and symptoms at the time he was assessed on each occasion are admissible to prove his feelings and symptoms at that time. Evidence of his feelings and symptoms over a period of time after his admission is relevant to the question of the severity of any psychosis he was suffering at the time of the alleged offence, particularly if the evidence establishes that symptoms persevered. However, any statements made by the accused after 4 February 2019 concerning his experiences at the time of the alleged offence do not satisfy the requirement for contemporaneity, in my opinion, and are not admissible to prove the fact of those experiences.
5. Arguably, in some respects, the accused's statements made to medical professionals on 4 February 2019 amount to admissions against interest combined with exculpatory statements in respect of the alleged offence, and are admissible on that basis. It is not clear whether the medical professionals were aware of the admissions made by the accused in his EROI. There is nothing in what was recorded on 4 February 2019 to indicate that the medical professionals proceeded on an assumption that the accused had killed the deceased. I would be prepared to accept that the accused's statements made when assessed by Dr Jones and when first assessed at the Frankland Centre come within the admissions exception. After that, it was known to those who were treating the accused that he had admitted killing his wife, and further investigations were concerned to ascertain his mental state. In my opinion, statements made by the accused after 4 February 2019 about his mental state at the time of the alleged offence are not admissible pursuant to the admissions exception.

1. The histories given by the accused to Dr Brett and Dr Pascu do not satisfy the contemporaneity requirement for admission of those histories under the first category identified in Ramsay v Watson. His statements to them of his feelings and symptoms at the time of the alleged offence cannot be used to prove the truth of the assertions in them on that basis.
2. Nor, in my opinion, is the history in each case admissible to prove the facts stated on the basis that it constitutes a mixed statement containing admissions against interest and exculpatory statements. Even if it did, I would be entitled to give less weight to the exculpatory statements if they are inconsistent with what the accused has said previously, in particular what he said in the EROI. However, I do not consider that the evidence is admissible on that basis. The accused had already made admissions to the police, and the interviews conducted by Dr Brett and Dr Pascu with the accused were not intended to elicit admissions that he killed the deceased. It is obvious that fact was assumed, as both psychiatrists commenced by ascertaining from the accused that he accepted most of what was contained in the Statement of Material Facts prepared by the police. Further, the evidence of Dr Brett and Dr Pascu was not adduced to prove that the accused killed the deceased or that he intended to kill her. It was adduced to assist the court to determine whether the accused was of unsound mind at the relevant time, based significantly on claims made by the accused to those consultant psychiatrists about his mental experiences at the time of the alleged offence.
3. It will be necessary, nevertheless, to outline the evidence of Dr Brett and Dr Pascu about the history given to them by the accused, as that history in each case underpinned the initial opinion provided by the expert. It will be seen that, in my opinion, there were some aspects of the histories the accused gave to them that were new and in some respects inconsistent with what the accused had said previously, particularly in his EROI.
4. Both Dr Brett and Dr Pascu suggested that the account given by the accused to them was likely to be more detailed in respect of his mental state, because the purpose of a psychiatric interview is different to that of a police interview, and police interviewers are not likely to explore to the same extent as a psychiatrist matters concerning psychotic phenomena that will be relevant to the insanity defence. However, in my respectful opinion, neither Dr Brett nor Dr Pascu was able to satisfactorily identify any specific aspect of the police interview that was deficient in that regard, or any aspect of their interviews with the accused that was more likely to elicit information about the accused's mental state that was absent in the EROI. In my opinion, as will appear from my outline of the EROI, there is ample evidence of the police interviewer probing the accused in respect of his mental state at the time of the alleged offence. Of course, quite properly, the accused's account was elicited by the police by questions that did not suggest the answers. The same approach was taken by the psychiatrists.
5. To the extent that the evidence of Dr Brett and Dr Pascu in each case suggested that the account he or she elicited from the accused was more reliable than that elicited in the EROI in respect of the accused's psychotic symptoms at the time of the alleged offence, I do not accept the proposition. In any event, it would not be a basis for overcoming the problem of admissibility pursuant to the first category identified in Ramsay v Watson. The history given by the accused to Dr Brett and Dr Pascu is received pursuant to the second category identified in that case. In the absence of evidence from the accused to establish the underlying facts, I will not rely on that history to the extent that it goes beyond facts established by other evidence, such as the EROI and the statements made by the accused to medical professionals on 4 February 2019.

Facts relevant to the alleged offence Approach to finding the facts

1. The significant volume of material tendered by the parties was not intended simply to provide a foundation for the Agreed Statement of Relevant Events. It was intended also to supplement that statement, to enable me to make findings of fact beyond the Agreed Statement of Relevant Events to the extent I consider it necessary to do so.
2. Insofar as the Agreed Statement of Relevant Facts described the accused's relationship with the deceased and his beliefs and other mental states prior to the alleged offence, it relied substantially on what the accused said in the EROI.
3. What follows are the facts that I find established by a combination of the Agreed Statement of Relevant Events and my assessment of the materials tendered into evidence, which will form the factual background against which I will consider the evidence of Dr Brett and Dr Pascu. To the extent that I have relied on the Agreed Statement of Relevant Events, I have sought to convey the substance without necessarily following the wording in that statement. Where I have made significant findings that are additional to the agreed facts or I consider the agreed facts to be incorrect or incomplete, I have said so. I have not included references to the sources of the facts in the Agreed Statement of Relevant Facts except where there are direct quotes or where the source is of particular significance.

1. At the time of the alleged offence, the accused was 44 years old. The deceased was also 44 years old. They had been childhood friends in Sri Lanka. They reunited when the accused returned to Sri Lanka from Australia in 2015. They married in June of that year and moved to Australia in 2017.
2. The accused has no criminal history in Western Australia.
3. The accused was born in Sir Lanka. His first language is Sinhalese. He communicates adequately in spoken English, which he studied in secondary school in Colombo.
4. The accused migrated to Australia on a student visa in 2002 and subsequently attained Australian citizenship. He initially lived in Queensland and was enrolled at university, studying for a graduate diploma in management. After failing to complete his tertiary studies at university, he went to TAFE in Queensland and obtained a qualification in hospitality.
5. In 2006 the accused moved to Western Australia and purchased a home within a unit complex at 15B Danehill Way, Balga.
6. The accused became acquainted with his neighbours, who lived in the adjoining unit. They knew him by his preferred name, Penn. One of the neighbours has said that the accused told them he was gay. That accords with the accused's admissions to the police that he had sexual relations with males, and with records obtained from the accused's GP, where it is noted that the accused identified as bisexual and reported having sex with men.[69]
7. The accused's brother, Gayan,[70] came to Australia in 2009 and lived with the accused in the unit (apart from times when the accused was in Sri Lanka without Gayan) until 2015, when Gayan married.

1. After moving to Western Australia, the accused enrolled in a nursing course at TAFE. As part of these studies he completed a placement at the Frankland Centre in 2014.
2. While completing that placement, there was an incident between the accused and another colleague, which made the accused feel embarrassed and uncomfortable.
3. Following this incident, the accused started experiencing auditory hallucinations.[71] I note that in the EROI, the accused described hearing noises, and made a sound that is transcribed as 'dream, dream, dream, dream, dream, dream',[72] but which, on listening to the EROI sounds like a ringing noise. The accused voiced paranoid and suicidal thoughts and later collapsed in a seizure.[73]
4. Gayan, who was also living in Western Australia at the time, noticed signs that the accused was mentally unwell at the time of the Frankland Centre placement. Specifically, the accused was 'severely paranoid' and expressing seemingly unfounded concerns that police were coming to arrest him.
5. As a result, the accused was unable to work for several days.
6. Not long after returning to work, on 22 May 2014, the accused was admitted to Sir Charles Gairdner Hospital (SCGH) in a paranoid state. While a patient there, the accused reported persecutory delusions and stated repeatedly, 'I'm not gay.' At SCGH he was diagnosed with 'depression with psychotic features.'
7. He was then referred as an involuntary patient to the Mental Health Unit at the Swan District Hospital (SDMHU) where he remained between 23 and 30 May 2014. While in the SDMHU, the accused was diagnosed with 'situational crisis in the context of culturally appropriate concerns'. I add to the agreed facts that it appears the diagnosis was made on the basis that the incident at Frankland Centre with a work colleague, which led to the accused's embarrassment, left the accused believing that he would be perceived as gay and that he would be fired from work and arrested, and that his family in Sri Lanka would be 'stigmatised for his actions as homosexuality is not openly accepted in Sri Lanka'.[74]
8. After he was discharged from the SDMHU, there is no record of the accused seeking treatment for mental health concerns in Western Australia. The accused told police in the EROI that he has never been treated for depression in Australia.

1. After he was discharged from the SDMHU, Gayan decided to take the accused back to Sri Lanka, because he still seemed unwell and continued 'talking nonsense.' Once in Sri Lanka in 2015, the accused was hospitalised at Nagoda General where he was diagnosed with depression and was prescribed olanzapine (an antipsychotic) and fluoxetine (an anti‑depressant). The accused continued to be prescribed those medications subsequently, and packets of both medications and scripts for them were found in the accused's unit during the police investigation after the alleged offence.[75]
2. While in Sri Lanka, the accused attempted suicide by overdosing on his medication. Following that incident, Gayan took responsibility for dispensing the medication. He has described himself as becoming the accused's guardian from that point in time.
3. As I noted earlier, during the accused's return to Sri Lanka, he reunited with the deceased, who had been a childhood friend. In June 2015, the accused and deceased married. The accused told his neighbours that it was an 'arranged marriage.'

1. In about February 2017, the accused returned to Western Australia from Sri Lanka with the deceased, and they commenced to live together in the accused's home in Balga.
2. The deceased, who was a qualified teacher in Sri Lanka, worked part time as an Uber Eats delivery driver, but otherwise stayed at home.
3. The accused was employed as a housekeeper for the Mercure Hotel in Perth.

1. The accused said in his EROI and to medical professionals when he was admitted at the Frankland Centre that he and the deceased argued from time to time. Notes made at 3.15 pm on 4 February 2019 indicate that the accused said the arguments had increased in the last week.[76]
2. The neighbours did not hear the couple argue during the time they lived at the Balga home, but noticed that the deceased seemed consistently miserable.
3. There are no incidents recorded on the WA Police Incident Management System involving the accused and the deceased.
4. The Agreed Statement of Relevant facts also notes that the records obtained from the accused's GP in Western Australia from 2017 to 2019 show that none of his presentations were for mental health related issues.
5. Not long after the deceased and accused moved to Balga together, the deceased asked the accused to refinance the unit, so that she could purchase a car. He refused. However, it appears she acquired a vehicle at some stage, because there is evidence from one of the neighbours that on an occasion when one of the tyres of the deceased's vehicle was flat, the accused refused to pay for it to be replaced. The neighbour eventually assisted the deceased to replace the tyre.[77]
6. The agreed facts in relation to the accused's perception of the deceased and his relationship with her are derived largely from what the accused said in his EROI. Although what the accused's answers in the EROI were at times disjointed and tangential, in the main his answers were responsive and I had the impression he was doing his best to recall events. Moreover, in most respects, his account to the police is generally consistent with later accounts he has provided about the relationship. I am satisfied that I can rely on what the accused said in the EROI as a true account of the accused's experiences.
7. On that basis I find that, after the accused and the deceased commenced to live in Balga, as time passed, the accused started to feel increasingly 'uncomfortable and unsafe'. He heard the deceased say, on two occasions, 'If you come to Sri Lanka, I'll get my friends to kill you.' It would appear that the last of those occasions occurred a couple of months before the incident. In light of all the evidence concerning the accused's mental state, I am satisfied that his beliefs were delusional. The evidence from Gayan, and the accused's own description of what the deceased was attempting to do on the morning of 3 February 2019, suggests that, despite her unhappiness in the marriage, the deceased cared for the accused. I find that it is implausible that the deceased would have made the threats to kill the accused. Neither party suggested otherwise. The accused's belief that he had heard the deceased make such threats was delusional and may have consisted of auditory hallucinations.
8. The accused has described that he would look at his wife and see 'different faces', like she was a 'ghost' or 'zombie'. He has said that sometimes he saw 'the teeth' or 'different people in her', as though she was a different lady. He has said the food he consumed tasted different and that he saw different colours (which I take to mean that colours appeared different to what they actually were). Clothing sometimes appeared to be 'inside, outside'.
9. The couple slept in separate bedrooms. The accused felt uncomfortable with the deceased. His mind told him he was not safe, so he avoided the home, staying there only to sleep, and leaving before his wife woke up. He struggled to sleep. The accused tried sleeping during the day, but the sound of his wife sweeping at his door prevented him from falling asleep. I would add that it is not clear from the accused's account to the police whether the sound of sweeping was real or imagined. What is clear is that it was an annoyance which contributed to a build up of feelings of distress.
10. The accused felt scared when he saw the deceased, and worried 'who is coming?'[78] The accused felt unable to cope. He was worried that the deceased thought less of him because she was a qualified teacher and he was a cleaner, even though she did not work as a teacher here.[79] The accused became withdrawn and barely spoke to the deceased. I note that he said to the police that they were not angry, just not talking.[80]
11. The accused and the deceased initially had a sexual relationship, but sexual intimacy ceased a year before the offence.
12. As I noted earlier, records from the accused's GP indicate that the accused identified as bisexual and reported having sex with men, and the accused told one of his neighbours that he was gay.
13. The accused told police that he used a website to meet random men for casual sex. He suspected that his wife knew about his sexual activities, but was not sure. He said there was one occasion, while they were watching a movie, when he told her that he liked one of the male actors. The deceased responded, 'You do whatever you want.'

1. In the days leading up to the incident, the accused felt he was 'living in a cemetery.' He told the deceased he no longer wished to stay in the house. The deceased suggested they travel together. The accused said he did not want to travel with her, but would be happy if she travelled with friends, or even if they separated. However, the deceased said to the accused, 'I don't want to leave you.' The accused told police that he thought the 'devil was coming' because his wife did not want to leave him.
2. The accused had not taken his medication for a long time.
3. I note that Gayan says that he would give weekly doses to the deceased to give to the accused. He had continued to retain control of the medication because he feared the accused might attempt suicide again. He says that the deceased was giving the accused his medication for a while, but she told Gayan that the accused had stopped taking the medication.[81]
4. The accused told the police that, after he stopped taking his medication, he felt different. When he was in a good mood he was fine and could sleep, but when he felt rushed or stressed, he began to see 'different faces' and he was not able to sleep.

1. The accused was rostered to start a nightshift at the Mercure Hotel at 10.30 pm on 2 February 2019.
2. That afternoon the accused's brother received a phone call from the deceased, who told him that the accused's behaviour had changed.
3. The accused drove to work, leaving home at about 5.30 pm to 6.00 pm, an hour earlier than usual. He parked his car at the Pier Street parking complex in Perth.
4. While in the carpark, the accused sat in his car for a long time because he was 'so confused' and not feeling well. In the preceding two days, he had not been feeling safe in himself. He told police: 'A lot of confusing things [happened] the previous day and since [then] I couldn't sleep ... I am not [in] a safe place in my mind.' He heard 'noises coming, flights going, planes coming, so many things.'[82]
5. At 6.00 pm Gayan called the accused. The accused told Gayan that he had not slept for three to four days. Gayan believed that the accused had relapsed, because he was saying the sort of things that he customarily said whilst acutely unwell.
6. Later that evening, while the accused was still at work, Gayan went to the Balga home to deliver the accused's medication. The deceased invited him inside. She showed Gayan the accused's room where, it appeared, the accused had been sleeping on the floor and urinating into a bucket.
7. Gayan sent the accused a text message, telling the accused that he (the accused) was sick and needed to take his medication. The accused replied that when his shift finished, he would not be going to church, and that he would take his medication.

1. The accused was rostered to finish at 6.00 am on 3 February 2019 but failed to complete his timesheet, which was unusual according to his manager. The accused left at 5.15 am, 45 minutes earlier than usual, without signing off, because he was feeling unsafe.
2. After leaving the Mercure Hotel, at approximately 5.19 am, the accused went to retrieve his car, but the carpark was closed. Vision of him outside the carpark was captured by CCTV. There is nothing about his demeanour that assists me to draw any conclusion about his state of mind, other than that he seems to be considering what to do.
3. The accused then called a taxi at approximately 5.29 am. The times of telephone calls are contained in a download of data from the accused's phone obtained by police.
4. Two minutes later, at 5.31 am, the accused was collected by a taxi and was subsequently driven home.
5. The accused called the deceased from the taxi at approximately 5.34 am and told her he was coming home by taxi.[83] The duration of that call was less than 20 seconds.
6. The accused was dropped off outside the Balga home at approximately 5.50 am. There is nothing about the accused's appearance or demeanour during the taxi ride that assists me to draw any conclusion about his state of mind. While at times it might be thought that he appears distracted, it is not conduct that could be regarded as being out of the norm. He was able to understand requests made by the driver and provided his address.

1. The accused arrived home, tired and depressed. The accused told police that the deceased 'suddenly' appeared as though she was 'a ghost coming to take [him]'.
2. The accused then made breakfast, consisting of bread, an egg and coffee, and a banana. He ate the breakfast and drank the coffee, before lying down on the couch to relax and watch television.
3. Two calls were made from the accused's phone during this period, both at approximately 6.22 am. First, a two second call to Gayan and an unsuccessful call to a contact listed as 'Ranchi Nangi.'
4. The accused said he consumed 'a tiny bit' of brandy at about 7.00 am.
5. The deceased offered to give the accused a head massage. That made the accused feel like 'a ghost was coming.' The accused declined the massage and the deceased and accused then had an argument. She asked him what was wrong, and he told her to leave him alone to put the bottle of oil she was holding away.[84] The deceased persisted and attempted to put oil through his hair. That made the accused uncomfortable.
6. The accused then experienced a number of auditory hallucinations which became unbearable. He said he heard 'sounds coming in his mind.' He described a sound with words that sound like 'creen, creen' (referred to in the agreed facts as a buzzing noise). He said 'sometimes planes going in my mind' and that he saw a tree and 'wagtails,' which he said are 'very bad birds'. The interpreter explained that wagtails were culturally symbolic of sorrow. I conclude that the accused considered them to be a bad omen.
7. It was in the context of a build up of the auditory hallucinations and feeling that he had had enough that the accused retrieved a knife from the kitchen and stabbed the deceased repeatedly, chasing her around the house and into his bedroom, struggling with her and eventually inflicting a final stab wound into her neck, while she was on the ground and he was on top of her, after which, she died. In summarising the accused's account in that way, I have departed somewhat from the Agreed Statement of Relevant Facts, without changing the substance. In my view, it is necessary at this point of the narrative to provide greater detail of what the accused said.

1. The accused was asked on at least two occasions during the EROI to describe how the stabbing had come about. When asked initially 'how things had turned out the way they did that day', the accused said:[85]

Because in my, I came like, ah, home and then I was so tired and then last night the incident and I was so depressed and she is, tried to massage or whatever. I said no, I don't want. And then, then after that I feel, I saw like, ah, she is trying to kill me. She is trying to take me somewhere, back to Sri Lanka or take me to Middle East to kill me from their friends. And I saw like a devil coming to me. Then we had our little argument after hair. Then I hit. Then she run away.

1. The next part of the accused's description of what he did with the deceased, which is contained in a short sentence, is largely indistinct and confusing. He was then asked whether he had something in his hand when he hit the deceased, and he said he had a knife. He said he could not remember how many times he hit the deceased with the knife, but said it was maybe two or three times.[86]
2. The accused went on to say that the deceased had tried to take the knife from him and that she tried to 'hit somewhere', but that he took the knife again and hit her.
3. The accused further said: 'I don't know what's happening. Like I was like, ah ... devil or ...'[87] The accused then spoke in Sinhalese and the interpreter interpreted: 'He was feeling like a devil. Was feeling, like myself, in myself I was feeling like devil.'[88]
4. He said that, during the struggle, the deceased tried to bite him 'a little bit'. He said he could not remember if he bit her. He said she was struggling, and he may have bitten her.[89] There was evidence subsequently found on the deceased's body of a bite mark.
5. The accused again described the precipitating event of the attempted hair massage by the deceased when he was asked again later about the circumstances that led to the violent incident. He said that, when she was trying to put oil in his hair, he was watching television and he said to the deceased to leave him alone and put the oil back and keep it away. He said it was 'like someone come in and put in a devil in my hair, oil'.[90]
6. However, at another point during the interview, the accused said that, after the deceased was trying to put oil on his hair, he had another coffee. In what appears to be a reference to what he said to the deceased, the accused said: 'What you doing? Let sleep. Leave me alone.'[91] The accused said: 'And then I saw her again like she is coming like a devil, and I got the knife and hit her'.[92]
7. The significance of that aspect of his account is that it suggests his decision to get the knife and attack the deceased was not spurred immediately by her attempt to massage oil into his head. Rather, after he had had another coffee, he saw the deceased coming again 'like a devil'. That is not to diminish the significance of his belief that it was like the devil was being put into his hair through the oil, but the deceased appears to have desisted with the hair oil, and there was a sufficient lapse of time for the accused to have another coffee. In endeavouring to pull together the threads of the accused's narrative, I have not ignored the fact that English is not the accused's first language and that at times his answers were disjointed (which was likely more a function of confused thought processes, than difficulty with language). However, having watched the interview, observed his demeanour, in particular when he appeared to be thinking carefully, and listened to the accused's intonation, I consider that what the accused said about having a coffee after the attempted hair massage by the deceased was a truthful and reliable qualification of what he said elsewhere in the interview about the sequence of events.
8. When asked if there had been any argument before he went to get the knife, the accused said:[93]

Argument is, that's the one, I feel like some sleep. She tried to kill me. She gone, then she said I kill you from my friends.

1. The following exchange then occurred in the EROI:[94]

Sgt Martin: When did she say that?

Mr Ihalahewa: When we had argument.

Sgt Martin: Before?

Mr Ihalahewa: Yeah.

Sgt Martin: Not today.

Mr Ihalahewa: Not today.

Sgt Martin: Okay.

Mr Ihalahewa: And that time when I thought I'm not safe.

Sgt Martin: Mmm.

1. When asked how long ago it was that the deceased had indicated that she would get friends in Sri Lanka to kill the accused there, he said: 'Couple of months, I think.'[95]
2. The significance of those exchanges is that they appear to qualify the accused's initial description of what happened, referred to at [155] above, and the further description at [162] above, which might suggest the accused was saying that the deceased was trying to kill him or tried to kill him at the time he decided to get the knife. When his answers are considered as a whole, bearing in mind, as I noted earlier, that they were at times disjointed, I am not satisfied that the accused was saying the deceased was trying to kill him on the morning of 3 February 2019 (or that that is what he believed). That might be apparent in any event from the fact that all references to the deceased trying to kill him were related back, by the accused, to the belief that she would have friends in Sri Lanka do it. In other words, the accused was not describing a scenario in which he believed the deceased would kill him imminently.
3. In the accused's description of the violence that took place, the only circumstance that indicates he believed the deceased might harm him immediately in a dangerous way was when she took the knife off him, but he said that he immediately seized it back. The clarification sought by Sgt Martin (set out at [162] above) of when it was that the deceased had said she would have her friends kill the deceased was understandable, given that the accused had earlier in the interview described that as having occurred in the past. In my opinion, the accused's answers made it clear that he was referring to a belief he held earlier. In making that finding, I have made allowance for the fact that English is not the accused's first language, and that at times his answers were disjointed. Of course, as I have already said, I find that the belief the accused held that the deceased had made the threats and intended to kill him was a delusional belief.
4. My finding as to what the accused meant in the EROI, when he said that the deceased was trying to kill him, does not mean that the belief was not operating on his mind as part of the feelings he had towards the deceased at the time he killed her. In other words, the persistent belief that the deceased was plotting to kill him was a relevant factor, notwithstanding that the accused did not believe he was in immediate danger. However, the proper construction of what the accused said will be important when I consider the opinions of Dr Brett and Dr Pascu.
5. When asked if the deceased had ever hurt him previously, the accused said:

Yeah. She says time to die, come home, I put drugs and I, I arrest you and I kill you; those things. Then I feel not safe to go with her.

1. He was not asked to elaborate when that happened, but self‑evidently it was a reference to a perceived past event. If he did not feel safe to be with the deceased on the morning of 3 February 2019, it would not make sense that he would go home and he would call her to say he was coming home.
2. When asked if the deceased had ever hit him, the accused said: 'At the very beginning, yes.'[96] However, when asked to elaborate, what the accused went on to describe did not involve any violence by the deceased towards him, and appeared to have no obvious relevance to the question.
3. When asked what he wanted to do with the knife, when he got it, and what he was thinking, the accused said that he wanted to hit the deceased with the knife. The following exchange then took place:[97]

Sgt Martin: And what did you want to do [to] her with the knife if you wanted to hit her? You say you wanted to hit her with the knife.

Mr Ihalahewa: Finish her.

Sgt Martin: Finish her. Okay. So you want ...

Mr Ihalahewa: Enough. Enough.

Sgt Martin: Enough. So when you say ...

Mr Ihalahewa: Even [or 'Evil'] noises enough. Everything enough. I want to, myself, I want to [indistinct] somewhere. I want to have my own, like room or somewhere ... Without noise.

Sgt Martin: Okay. So when you say finish her ... What do you mean?

Mr Ihalahewa: I want to kill her.

1. I am satisfied that what the accused was describing as the impetus to kill the deceased was his desire to bring to an end the disturbing auditory and visual hallucinations he was experiencing, in circumstances in which he believed the deceased was the cause of those phenomena. The further context of his decision was that he did not want to be with the deceased, because they no longer had a meaningful relationship and the accused believed she wanted him dead and had been plotting to achieve that if they returned to Sri Lanka.
2. The accused was asked during the police interview if one of the reasons why he did not want to be with the deceased was the fact that he wished to have relationships with males. He said that was not the reason, and that he did not have any intention of living with another male. He said he felt that he and the deceased were 'continually distancing from each other'. He said they were not talking much, that he would go to work and when he would come home he would sometimes feel 'pictures coming', that he 'could not see her face gradually' and he would see different people or characters. He said he felt like he was living with a zombie or a ghost.[98]
3. After the accused's initial description of the circumstances in which he inflicted the fatal injuries on the deceased, he was asked about the circumstances again later (but before his answers in relation to his intention). On that occasion, he said that the deceased was standing when he struck her with the knife. She was facing the main door and he came at her from behind. He said she then started struggling and ran to his bedroom. He said he followed her and hit her again while she was in his bedroom. It is sufficiently clear from the context that he was referring to striking the deceased with the knife. He said she then tried to disarm him, but that he hit her two more times. He indicated he hit the deceased in the area of her neck and there was 'plenty of blood'.
4. The accused also said that the deceased fell on the floor and he was trampling her with his feet while she was down. He subsequently explained he had shoes on.
5. The accused then described circumstances in which it seems he was struggling with the deceased on the floor and she was trying to take the knife off him. He said she did manage to take the knife off him and was trying to hit him. However, it is apparent from his account that he regained possession of the knife. He said the deceased tried to stand, but he stopped her from getting up, pinning her down by sitting on her. He said he then put the knife 'inside her neck' and held it in place. He said that once the deceased stopped breathing, he walked out of the room, leaving the knife in her neck.[99] He said he then called the ambulance and told the police that he had killed the deceased.[100]
6. The accused said that the incident happened around 6.30 or 7.00 am. He said he had not been home very long. He thought it was less than an hour.[101]

1. There were no witnesses who saw the incident. However, the accused's neighbours next door heard the incident occur.
2. Around 7.00 am, they heard a woman yelling from the accused's home. Their impression was that her voice sounded frustrated and agitated. They were unable to make out what was being said, as it was not in English. As they did not hear any other voices, they assumed she was on the telephone.
3. One of the neighbours heard screaming which continued for five minutes before ending suddenly. There were no further noises from the unit until the police arrived. His flatmate sent a message to a friend at 7.06 am which read: 'omg the woman next door just sounded like she was getting murdered and now it's deathly silent.'

1. A post‑mortem examination conducted on the deceased on 5 and 6 February 2019 by forensic pathologist, Dr McCreath, revealed that the deceased sustained six penetrating stab wounds, some of which could not have been made without the use of considerable force. There were two stab wounds to her neck, one of which penetrated the left jugular vein, with extensive haemorrhaging in the surrounding soft tissues. The other one was at the base of the deceased's neck. Both of those wounds were inflicted from the front.
2. There were four stab wounds to the front of the deceased's chest, one of which penetrated her right lung and caused bleeding in her chest cavity.
3. The most serious wounds were those which severed the deceased's jugular vein and penetrated her lung.
4. There were 37 incised injuries (cuts) of a defensive nature to the deceased's hands and fingers (19 to the right hand and 18 to the left hand).
5. Further, there were eight incised injuries present on the deceased's head and neck, five on her chest and four on her arms. The cuts were of various sizes. While there was at least one cut to the deceased's back, the majority of the injuries appear to have been to the front of her body. While that is not necessarily inconsistent with the accused's account that he initially attacked the deceased from behind, it appears that for much of the attack she was facing the deceased and attempting to defend herself. The cuts to her hands may also be consistent with attempts by the deceased to take the knife from the accused, as described by him.
6. The only reasonable inference to be drawn from the evidence of the penetrating and incised injuries is that the accused's attack upon the deceased was significantly more ferocious and sustained than he described. As I noted earlier, the accused was not able to recall how many times he had 'hit' the deceased (which, from the context, I understand to mean 'stabbed'). It is difficult to discern the number of strikes he described, because parts of his account were repeated. However, it is clear from the number of penetrating wounds found at the post-mortem examination that there were at least six separate wounds of that kind inflicted with the knife.
7. As I will describe later, the police officer who first attended to the deceased found a knife lodged in her 'left shoulder area'. That would appear to correlate with the accused's account that he left the knife in the deceased after inflicting the last wound, while he was sitting on the deceased. However, it is not clear with which of the wounds described by the forensic pathologist that particular wound correlates. It is possibly the second wound to the deceased's neck identified by the pathologist and described as being 'just to the left of the base of the neck'.[102] While that wound penetrated soft tissue, it was not the one that penetrated the deceased's jugular vein.
8. It would be expected that the wounds most likely to have resulted in the deceased's death as a result of significant bleeding were those that penetrated her jugular vein and her right lung.
9. There were also bruises and abrasions to the deceased's head, neck, chest, arms, knees and shins. A patterned abrasion consistent with a bite mark was present on her upper left arm. The injuries are described in detail in the post-mortem examination report. No expert evidence was adduced at the trial about the possible causes of the bruises and abrasions, but they would appear to be consistent with a struggle, particularly if the deceased was on the ground, as described by the accused.

1. The accused called 000 at 8.50 am, approximately an hour and 50 minutes after the fatal attack.
2. At the start of the call, the accused said, 'My wife and me had an argument and she died.' When asked how she died, he replied, 'She took the knife first, and it's a little one, and then I throw that little one, and then I took the big one and I hit her.' He also said, 'She started the violence.' He confirmed she was not breathing.
3. In light of the accused's account to the police in the EROI, I accept that the accused's initial statement that he and the deceased had an argument was a reference to what the accused later described of the incident with the oil hair and the deceased's attempt to massage his head. Otherwise, for the reasons set out in [81] above, I do not give any weight to what the accused said during the 000 call. As I said in those reasons, it is not part of the defence case that the deceased started the violence. Nor did the defence submit that I should find on the basis of the 000 call that the accused believed, as a delusion, that the deceased started the violence. Further, as I said earlier, the defence did not rely on the accused's statements during the call as evidence that was probative of the insanity defence.
4. As I have indicated in dealing with the accused's account during the EROI, I am satisfied that in describing the relevant events at that time the accused was drawing on memories which, although incomplete, were reasonably reliable. What he described was not consistent with the deceased having started the violence, or with a delusional belief that she had started the violence. The accused had minor cuts to his fingers, which were consistent with occurring when he struggled with the deceased to regain possession of the knife.
5. Although there were two knives found at the scene, the accused was not able to recall how the second knife came to be on the floor, when he was asked to explain its presence in the EROI.

1. Following the 000 call, police were sent to the accused's house immediately. First Class Constable Wold and Constable Lord were first on the scene at 8.58 am.
2. The accused was present and unlocked the front door. There was a large amount of blood on his hands and clothing. The blood appeared to be dry.
3. The accused was arrested on suspicion of unlawful wounding and cautioned. When he was asked by Constable Lord if he understood the caution, the accused shook his head and said, 'Only little English.' His legs were visibly shaking. Constable Lord asked him if he was okay. The accused answered, 'I so very tired, no sleep for days.' That is consistent with what the accused subsequently said in the EROI, and I accept that was the way he was feeling at that time.
4. First Class Constable Wold entered the rear bedroom where she found the deceased on the floor, face down, in a pool of blood. The deceased was wearing a top and underwear. Constable Wold noticed multiple stab wounds to the deceased's body, but there was no active bleeding. The deceased's skin was grey and she was unresponsive. She was not breathing.
5. First Class Constable Wold rolled the deceased over. She noticed a large kitchen knife protruding from a wound to her left shoulder. As she rolled the deceased over, the knife was dislodged, causing a cracking sound to emanate from the area of the wound.
6. First Class Constable Wold commenced cardiopulmonary resuscitation (CPR). A short time later, other police officers arrived. Photographs were taken of the scene, the accused and the deceased.
7. The accused was calm, quiet and emotionless.
8. Paramedics arrived at 9.01 am and relieved First Class Constable Wold from performing CPR. They subsequently moved the deceased to an ambulance. A short time later the decision was made to terminate resuscitation as she would not be able to survive her injuries.
9. The deceased was certified life extinct at 9.20 am on 3 February 2019.
10. The accused was arrest on suspicion of murder at 9.24 am.

1. At 1.52 pm, forensic investigators commenced their examination of the scene. During the examination, two knives were seized:

(1) a black‑handled 30 cm long chef's knife, which had been embedded in the deceased (as found by First Class Constable Wold); and

(2) a smaller (although still large) yellow‑handled knife, located on the floor of the kitchen, next to one of the deceased's slippers. There were bloodstains in the vicinity of the knife, but not on the knife.

1. On examination of the knives for latent fingerprints, no prints were developed.
2. Blood stains were located down the hallway, leading towards the rear bedroom and in that bedroom.

1. At 10.25 am the accused was conveyed to Mirrabooka Police Station, where he remained under observation until investigators arrived at 1.40 pm. Various forensic procedures were then carried out in respect of the accused.
2. At 2.12 pm, forensic investigators conducted a forensic examination of the accused. As part of the process, he was photographed and police took fingernail scrapings and swabs, reference DNA, fingerprints, a blood sample and an impression of the accused's teeth. Police also seized the accused's clothing.
3. The accused's blood sample tested positive for Fluoxetine (although that was not confirmed by a secondary technique) and negative for alcohol and all other illicit or prescribed substances for which testing was done.

1. The accused participated in the EROI at 7.14 pm on 3 February 2019. A Sinhalese interpreter was present.
2. At the conclusion of the interview, when asked how he was feeling, the accused said, 'Bit better, not like the morning ... I had really horrible morning, incident come, then I feel little bit again.' He said he was tired in the morning, but now he had energy again.
3. I have set out above in some detail the relevant aspects of the accused's account. I am satisfied that, during the interview, the accused demonstrated that he understood the questions asked and was doing his best to recall the events, even though at times his answers were disjointed and tangential, as I noted earlier. He was also alert to any misunderstanding on the part of the interviewers. An example of that was when Sgt Martin appeared to suggest that the deceased's presence at home was related to school holidays, apparently relying on the fact that the accused had said the deceased was a school teacher. The deceased immediately clarified that the deceased was not a school teacher here (in Australia), which indeed he had explained earlier.[103]

1. I have described at [182] ‑ [190] above the injuries found by Dr McCreath upon her post‑mortem examination of the deceased.
2. Dr McCreath determined the cause of death to be stab wounds to the deceased's neck and chest.
3. The deceased was a slight woman, weighing 39 kg.
4. Blood samples were taken from the deceased and sent for toxicological analysis. The analysis revealed no alcohol or prohibited drugs in the deceased's blood.
5. Macroscopic neuropathology revealed no significant abnormalities of the deceased's brain.
6. A consultant forensic odontologist, Dr Knott, conducted an examination of the deceased's teeth and found no signs of trauma. He also conducted an examination of the patterned injury on the deceased's left upper arm, to which I referred earlier, and which had the appearance of a human bite mark. The impression was measured and compared to a reference silicone impression, which Dr Knott obtained from the accused. He concluded that the injury was most likely a result of a bite by the accused.

1. Other than the evidence I have outlined, the State did not tender any evidence of forensic examinations.
2. The accused was formally charged with murder on 3 February 2019.

Accused's presentation and accounts to medical staff shortly after the incident

1. It is convenient now to set out the evidence of the accused's presentation and his account of the incident when examined by medical practitioners on 4 and 5 February 2019, having regard to my ruling on the use that can be made of that evidence in [84] ‑ [88] above.

1. After he was arrested, the accused was assessed by Dr Bryan Jones on 4 February 2019 in the detention area at the Perth Magistrate's Court to determine whether he should be admitted to hospital or released to police custody. Dr Jones' report for the magistrate notes that he asked the accused about the incident. He recorded the following notes in that regard:[104]

During the assessment he was pleasant and co-operative.

He described his mood as unstable, stating it fluctuates quite rapidly, from happy to sad.

He admitted to experiencing auditory hallucinations, describing these voices as derogatory in nature and also command in nature and persecutory.

He said these commands are either directing him to 'kill someone, harm someone or self-harm' ...

He denies any thoughts at present to harm himself or others ...

He said, without prompting, 'I murdered my wife because I thought she was going to harm me.'

1. Dr Jones also documented the accused's account in a 'Mental Health Triage' form, also dated 4 February 2019 at 9.35 am, where his comments from the handwritten form are duplicated, with some additional details:[105]

Upendra admitted to experiencing auditory hallucinations, stating these voices are worse at night which often results in a disturbed sleep pattern. He described these voices as derogatory and command in nature, they have been telling him to 'kill someone, harm someone or self harm' ...

He had the ability to understand his current situation and the reason for being arrested, without prompting he said 'I murdered my wife because thought she was going to harm me.'

1. Dr Jones noted that the accused 'denied any current thoughts regarding self-harm/suicide or thoughts to harm others'.[106] He also noted that there was 'no evidence or display of poverty of ideas or flight of ideas, though [the accused] was hesitant at times when responding to questions'.[107]
2. A hospital order was made by the Magistrates Court under s 5 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (Criminal Law (Mentally Impaired Accused) Act) referring the accused to the Frankland Centre.[108] The accused was admitted to the Frankland Centre at 2.39 pm on 4 February 2019.[109]
3. The Integrated Progress Notes made by a Registered Nurse at the time of the accused's admission to the Frankland Centre recorded under the heading 'Thought Content':

Some apparent persecutory beliefs - believed that wife & her friends intended to & still intend to kill/hurt him. Paranoia around wife & her actions to intend to hurt him.

1. Later that day, at 3.15 pm, the accused was assessed by Dr Griffiths, Senior Medical Practitioner, in the Acacia ward of the Frankland Centre. Dr Griffiths recorded the following notes under the heading 'History of Presenting Problem':[110]

Reports having a bad couple of days, hearing AH (auditory hallucinations), not feeling safe, everyone against him. Feeling this way for a 'long time'.

AH commenced 5 years ago. Started as noises e.g. sound of broom, birds, both inside and outside of house. Voices made him feel down and depressed, [decreased] oral intake to sleep. AH getting worse over the years. VH (visual hallucinations) of faces. Saw VH of different faces on wife, made feel down.

[Symptoms increased] last week - arguments [increased], poor sleep different

- wife's face changing to ghost face, old face, person

- thought wife would hurt him. Talking to people against him for past 1.5 years.

 heard her talking eg 'like a child', 'wife's friends will kill me'  she was threatening  doesn't know why.

1. Under the heading 'Mental State Assessment', Dr Griffiths recorded:[111]

Sometimes thoughts difficult to follow but not grossly thought disordered.

Paranoid ideation regarding wife and friends wanting to kill him. Command auditory hallucinations. Hears noises of crying, fighting. Life is still in danger, 'from anybody'

Can't trust anyone.

Delusions of reference.

Delusions of thought interference.

Regrets stabbing, wife but 'I couldn't control it at the time.' Feels that her friends might come and kill him.

Not suicidal. Feels safe here.

1. In a letter dated 26 February 2019 addressed to the Presiding Magistrate for an appearance by the accused in the Magistrates Court on 27 February 2019, Dr Griffiths (with Dr Ho, a Psychiatry Registrar) outlined the accused's 'initial presentation in hospital' as follows (italics added):[112]

On admission to the Frankland Centre, Mr Ihalahewa presented as cooperative, meek, and forthcoming. He described hearing noises over the last 6 years that progressed to hearing his late wife plot with her friends to kill him. He reported feeling fearful of his safety and as a consequence had intermittent poor sleep. In this context Mr Ihalahewa reported arguments and conflict with his wife. Mr Ihalahewa described episodes of dissociation, losing his memory, and collapsing due to loss of muscle tone. On physical examination he reported vague pain symptoms in both shoulders and stated that he was unable to raise his arms more than 90 degrees. His thinking was vague at times however assessment may have been limited by cultural and language barriers. He admitted that he had symptoms for some time, however did not disclose them to anyone until his arrest.

Mr Ihalahewa described several weeks of psychotic symptoms prior to the alleged offence, such as his wife and other people following him, and looking at what he was doing and eating. He reported hearing his wife mutter to him to come to Sri Lanka and that she had lots of friends who would kill him. He was unable to explain why she would want to kill him.

Mr Ihalahewa reported a 3 day history of insomnia and feeling extremely anxious and unhappy prior to the alleged offence. He stated that his wife was 'saying negative things', that 'different noises' were coming from her throat, and that she had 'different faces' when he looked at her. He said that he saw her face transform from her normal face, to a 'ghost face', then an 'old face'. He also saw her in a pink dress, and felt frightened and unable to speak or enquire if she was scaring him. He stated that food tasted different and he was thus reluctant to return home, spending time in the park and sleeping in the car. On the day of the alleged offence Mr Ihalahewa decided to return home after work. He reported hearing voices that commanded him to kill his wife or he would be killed.

1. The outline contains more information than was recorded in the notes from the accused's initial admission to the Frankland Centre. I have italicised those parts that I consider to be additional information. It would appear that the outline incorporates entries made at a later time during the accused's stay in the Frankland Centre. In particular, the references to the accused believing he was being followed and stating that his wife was saying negative things about him, that she appeared in a pink dress and that food tasted different appear to come from notes contained in Integrated Progress Notes recorded at 10.00 am on 13 February 2019 and said to be a 'retrospective note' of an attendance on the accused at 4.00 pm the previous day.[113] For reasons given above, I do not regard statements made by the accused at that time about his history to be admissible for the truth of what he said, in the absence of oral evidence from the accused in the trial to confirm those matters.
2. I note also that the accused's descriptions of physical symptoms or limitations reported in the letter of 26 February 2019 do not appear in Dr Griffiths' notes of 4 February 2019. It is not apparent to me where the information comes from. Even if it is assumed that the physical examination referred to occurred on 4 February 2019, and that the accused's description of his symptoms at time are admissible to establish the fact that he was suffering those symptoms at that time, the evidence does not shed light on the accused's physical state at the time he is alleged to have committed the offence. There is no evidence to suggest that the accused was limited in his movements when he stabbed the deceased. By his own admission, he inflicted on the deceased a prolonged physical assault that involved considerable vigour and he was strong enough to overpower the deceased when they struggled, although I take into account that she was of slight build.
3. The most significant issue arising from the letter of 26 February 2019, that requires me to make a finding, is the statement attributed to the accused in the last sentence of the quote in [231] above, namely that he 'reported hearing voices that commanded him to kill his wife or he would be killed'. There is a quote said to be verbatim recorded in the Integrated Progress Notes of 13 February 2019 at 10.00 am, which reads: 'Someone said before she take you, you take her, then I did it. After that I regretted.' As I said earlier, those notes purport to record things said during a consultation the previous day, 12 February 2019. If the reference in the letter of 26 February 2019 to a command hallucination requiring the accused to kill his wife 'or he would be killed' purports to outline what the accused said on 12 February 2019, it is not admissible for the truth of the statement, and I put it to one side.
4. If the reference in the letter of 26 February 2019 purports to reflect what the accused said during his admission to the Frankland Centre, then in the absence of evidence from Dr Griffiths that it was something said by the accused, but not recorded in the original notes, I regard it as an interpretation of what the accused said, rather than a direct quote. That is because the things the accused said to Dr Jones in the initial assessment at the Magistrates Court and to Dr Griffiths on 4 February 2019 at the Frankland Centre at most amounted to a claim that he had heard voices at unspecified times telling him to 'kill someone, harm someone or self-harm'. As appears from the notes of Dr Jones and Dr Griffiths quoted above, while the accused said he 'murdered' the deceased because he thought she was going to harm him, he did not describe a command hallucination operative at the time he killed the deceased which commanded him to kill the deceased to avoid an imminent risk of being killed by the deceased. The accused's persecutory delusional belief on 4 February 2019 (and again on 5 February 2019 - see below) was that the deceased was 'plotting to kill him' with the assistance of friends. Of course, what he had said in the EROI was that the plot involved taking the accused back to Sri Lanka. It is also noteworthy that the accused said to Dr Griffiths in respect of the stabbing that he 'couldn't control it at the time', not that he was being commanded to do it.
5. Apart from the apparent attempt to probe why the deceased would have wished to kill the accused, which the accused was unable to explain, there is no evidence that any of the medical practitioners who attended upon the accused on 4 February 2019, or indeed in the days and weeks that followed at the Frankland Centre, explored the accused's statements about the command hallucinations, in particular the timeframe within which they were said to have occurred.
6. Weighing the various statements made by the accused when he was seen by Dr Jones and when he was admitted to the Frankland Centre shortly after, and having regard to my findings in respect of the accused's account in the EROI, I am not satisfied on the balance of probabilities that he was experiencing a command hallucination at the time he killed the deceased, commanding him to kill her lest she kill him.

1. On 5 February 2019, at 11.00 am, the accused was again seen by Dr Griffiths, who was with Dr Wojnarowska, a Consultant Forensic Psychiatrist.[114] The notes from that attendance record that the accused was feeling safe at the Frankland Centre. He said he had been hearing some noises, but it was noted that they may be real noises. He denied hearing voices. In context, the statement appears to relate to his then current circumstances at the Frankland Centre. The accused did not exhibit paranoia about the staff or other patients. The accused was remorseful about killing his wife, but his affect was described as 'non‑plussed'. The accused reiterated his belief that the deceased and her friends were plotting to kill him, although he was not able to express why.
2. Dr Griffiths and Dr Wojnarowska concluded on 5 February 2019 that the accused was not obviously experiencing psychotic symptoms that day, but he remained steadfast in his beliefs that his wife was plotting to kill him.

1. The accused's presentation upon admission at the Frankland Centre was felt to be consistent with an episode of psychosis.[115] As Dr Griffiths and Dr Ho explained in their letter of 26 February 2019 to the Magistrates Court:[116]

Psychosis is a symptom of a mental disorder where a person loses the capacity to tell what is real from what is not. They may believe or sense things that aren't real, and become confused or slow in their thinking.

1. As Dr Griffiths and Dr Ho further explained in the letter, it was unclear at that stage whether those symptoms were due to 'a schizophrenic-type illness, a psychotic depression, or secondary to a medical condition such as an autoimmune disorder'.[117] Investigations were undertaken and the accused was commenced on antipsychotic medication. His progress up to 26 February 2019 was described in the letter as follows:[118]

Considering Mr lhalahewa's history of collapse and possible seizure, extensive investigations for physical causes of his presentation were undertaken at Frankland Centre. Investigations were unremarkable, including a brain MRI. An EEG (electroencephalogram) was undertaken to further investigate for seizure disorder; at the time of preparation of this report, the EEG results were not available. No seizure-like activity was witnessed during Mr lhalahewa's admission.

Mr lhalahewa was prescribed the antipsychotic medication olanzapine 5mg as well as fluoxetine 20mg, an antidepressant medication, as these were effective during Mr lhalahewa's previous episodes of psychosis. He reported resolution of voices, and gradual resolution of paranoia. In the initial week of being in hospital, Mr lhalahewa had intermittent thoughts of being followed, perhaps by [the deceased's] friends who were plotting to kill him, however these were of lesser intensity and completely dissipated after approximately a week.

Mr lhalahewa was treated as an involuntary patient under the Mental Health Act 2014 due to the serious nature of his alleged offending. He was accepting of hospital admission and adherent with treatment and was made a voluntary patient on 26/02/2019.

1. It appears that subsequent investigations eliminated a seizure disorder. In any event, the accused's psychotic symptoms appear to have abated within a relatively short time after he was commenced on the antipsychotic medication. By 26 February 2019, he had been diagnosed at the Frankland Centre with schizophrenia, which is described in the letter of Dr Griffiths and Dr Ho as follows:[119]

Schizophrenia is a major mental illness that disrupts the functioning of the human mind. It causes intense episodes of psychosis involving delusions (fixed false beliefs) and hallucinations (an experience of perceiving something that is not present), and longer periods of reduced expression, motivation and functioning.

1. While I do not give weight to any histories concerning the alleged offence given by the accused to medical professionals at the Frankland Centre in the period after his admission on 4 February 2019, I have had regard to the progression of the accused's mental condition as described in the medical records from the Frankland Centre, which supports the diagnosis and the conclusions expressed in the letter that the accused's symptoms abated.

1. Dr Brett and Dr Pascu were called to give expert evidence about the accused's mental state at the time of the alleged offence, in particular whether he was suffering from a mental impairment and whether he was deprived of one of the relevant capacities relevant to the insanity defence.
2. Each of Dr Brett and Dr Pascu is a suitably qualified and very experienced forensic consultant psychiatrist.
3. Both of the experts interviewed the accused for the purposes of providing their opinions. They also relied on other materials. It is not necessary to set out in detail the other sources of information on which they relied. It is sufficient to indicate that they included the materials from the prosecution brief that were tendered and read into evidence, the CCTV footage to which I have referred, the EROI, all of the medical records from the Frankland Centre and other hospitals to which I have referred, and information from the accused's general practitioner.
4. Dr Pascu interviewed the accused on 19 April 2019 for approximately three hours. Dr Brett conducted two clinical interviews with the accused on 14 and 21 October 2019 at the Frankland Centre, with the assistance of a Sinhalese interpreter.
5. Dr Pascu did not use an interpreter for her interview. She asked the treating team whether there were difficulties in obtaining information or communicating. She also asked the treating psychiatrist to check with the accused whether he wished to have an interpreter. The accused declined an interpreter. Dr Pascu said that she and the accused experienced no difficulties in understanding each other.
6. Both Dr Brett and Dr Pascu revisited the circumstances of the alleged offence with the accused during their interviews with him.
7. The accounts given by the accused to both psychiatrists were against a background described by him of deteriorating mental illness, characterised by acute psychotic symptoms. I have already commented on the admissibility of those accounts. In order to understand the decisions which follow concerning my assessment of the evidence of Dr Brett and Dr Pascu, it is necessary, nevertheless, for me to refer to the accounts the accused gave to them, which were set out in the reports of Dr Brett and Dr Pascu. In each case, the witness adopted the contents of his or her report as true and correct.

1. The account given by the accused to Dr Pascu on 19 April 2019 was described in her report as follows (italics added):[120]

Mr Ihalahewa accepted most aspects of the events described in the Statement of Material Facts ...

Leading up to the alleged offence Mr Ihalahewa said 'the week I didn't sleep at all, I heard loud bird noises coming into my head, I heard the broom sweeping the floor at night; when I was in my room I started seeing different pictures of my wife in my mind, her face and her clothes were changing, she was like a ghost and I started thinking there was Evil in her; I was getting more scared, frightened that she was going to kill me very soon, I was petrified and I felt I couldn't talk to anybody about all what was happening; I felt scared at home, at work I felt a little safer but I was always thinking about it and I couldn't do my work properly; sometimes I would get out of the house and I slept in my car, in a park not far from the house, things were getting worse; sometimes I would just go home to sleep and lock my door.'

Mr Ihalahewa continued 'the bird noises, sweeping brome [sic], my wife's noise saying she would kill me were all getting worse, I was also seeing dentures in the bathroom and wasn't sure what they meant but I was really scared that she was going to kill me; the night before this all happened I went to work earlier, I stayed in the car for a while; I worked overnight at the hotel, I couldn't work as I was very paranoid and scared; I started work the Saturday evening at 10pm and I was supposed to finish the next morning at 6am; that night was very strange, I think my wife could see I was sick and she probably worried about me; she apparently spoke to my brother who texted me that he left some medication at me house; that night I just couldn't work properly, I left work at 5 am, I didn't even sign off and took a taxi as my car was in the car yard which was closed until 6.'

Mr Ihalahewa said 'at 5 am I tried to call my brother to pick me up but there was no answer as he was probably asleep; I tried to call my wife but there was again no answer and I tried again and she answered the phone but she didn't know how to get to the city so I decided to take the taxi in the end; I remember I entered in the house, it all felt like a nightmare with many voices, noises, pictures, it was awful doctor; I took the tablets that my brother left for me and I told my wife I would try and sleep on the couch.'

Mr Ihalahewa said 'my wife saw that I was not well and I think she just wanted to help me feel better and relax and she wanted to massage oil on my head to relax; I was very paranoid and I didn't really want her to do that more so as I was scared she was going to kill me; the voices said that I had to kill her otherwise she was going to kill me; we argued a bit about me not wanted her to massage my head but she did; I tried to sleep but everything was just there, it was just too much; I remember the voices telling me to kill her and I couldn't stop myself, I don't know why doctor; I went to the kitchen and I got the knife, she was in the lounge room, I hit her from behind and she ran towards the bedroom; I went after her and stabbed her there while she was on the floor, once I stabbed her the voices kept getting louder saying that I had to finish her otherwise she will kill me'.

Mr Ihalahewa continued 'at one point the voices just stopped and there was silence; I just went and sat down in the lounge and that was when I realised what happened; I felt very scared and it felt like I just couldn't think anything from the outside world and then it came to my mind to call the Police and I did that...'

1. The account given by the accused to Dr Brett on 14 and 21 October 2019 (with the assistance of Sinhalese interpreter) was described in his report dated 24 October 2019.
2. The accused was able to give a basic account of the alleged offence to Dr Brett. He did not dispute the police statement of material facts.
3. In his report, Dr Brett described the accused's account of the alleged offence as follows (italics added):[121]

He described becoming increasing mentally unwell in the months before the alleged offence. He stated that he had previously been prescribed medication, which I understand was an antipsychotic and an antidepressant. He had not taken these medications regularly for at least a year.

He described experiencing auditory hallucinations (hearing voices), visual hallucinations, persecutory delusions and delusions of reference. He described his thoughts as being confused. He described seeing his wife at different ages and wearing a pink dress. He heard his wife stating that she would kill him. He believed that people wanted to send him to Sri Lanka. He believed that his wife was involved in this conspiracy.

He stated that he had been sleeping badly for 5 nights before the alleged offence. He stated that he was sleeping in a different room to his wife and with the door locked, as he was frightened of her.

He described seeing dentures in the bathroom. He interpreted this as being a bad omen of death. This reinforced his belief that he was going to be killed. He described becoming increasingly anxious and frightened.

He stated that he went to work on a night shift on the day before the alleged offence. He arrived at work at 9pm. He stated that he did not know how he worked. He stated that he was scared and thought that this would be his last day on earth. He stated that his thoughts were confused and he was frightened. He stated that he left work early and took a taxi home, despite his car being at work. He stated that his car was in a locked car park and he could not remove it. He stated that he did not clock off work, which was normal practice.

He stated that when he got home his wife let him in and tried to calm him and tried to massage oil onto his head to reduce his agitation. She also gave him medication to try and calm him (he believed that this was an antidepressant). It seems that this had the opposite effect and he became more agitated. He became increasingly fearful. He incorporated his wife into his delusional system and believed that she was going to kill him or return him to Sri Lanka.

He described significant perceptual disturbances around this time, which he incorporated into his delusional system. He stated that he heard an airplane, which he believed was coming to take him away, to be killed. He heard pots and pans being moved. He heard bird sounds, a wagtail, which can be a bad omen in the Sri Lankan culture. He stated that these perceptual disturbances made him increasingly scared.

He described the devil coming into his body and possessing him. He stated that the devil spoke to him and commanded him to kill his wife. He stated that he was not given an option and felt compelled to do as he was told.

He stated that at the time he felt he had to do the act. He believed that if he did not act as he did, he would be killed. He described being in a state of fear and confusion.

He described coming to his senses to a degree following the act. He saw his wife and the blood and that she was not breathing. At this time he called the ambulance.

1. Dr Brett noted that the accused described the devil 'as if it was a trance'; the accused said 'that the devil sort of came into him and took over him.'[122] Those descriptions were not contained in Dr Brett's report, but were in his written notes.[123]

1. As I discussed earlier, the question of the admissibility of the accused's accounts to Dr Brett and Dr Pascu, and the weight I can give to those accounts is relevant to the weight I can give to certain parts of the opinions expressed by the two experts. That is because both placed significant reliance on the accused's claims that he heard voices commanding him to kill his wife, with the threat that he would be killed if he did not act on the command, and that he felt compelled to do so or could not stop himself. The italicised parts of the accounts set out above are of particular significance.
2. Although as a matter of law I have ruled that the histories given by the accused to Dr Brett and Dr Pascu are not admissible to establish the truth of his claims, in the absence of oral evidence from him in the trial confirming those claims, the accounts are relevant in assessing the reliability of the accounts the accused gave proximate to the time of the alleged offence, particularly where he has remained consistent.
3. In that regard, I have taken into account the opinions expressed by Dr Brett and Dr Pascu about the relative reliability of the histories given by the accused to them and the history he gave to the police.
4. Broadly speaking, where a person suffers from psychotic symptoms at the time of an event, it has potential consequences for the reliability of that person's account of that event. Both Dr Brett and Dr Pascu said that, if the accused was psychotic at the time of the alleged offence, that could adversely affect his perception of what was happening (apart from the psychotic phenomena), the encoding of memory of the events and his ability later to retrieve such memories as were encoded.
5. Therefore, I have approached the accused's accounts of the events with caution. However, there are aspects of the accused's accounts in the EROI, to medical professionals when he was admitted to the Frankland Centre and subsequently to Dr Brett and Dr Pascu, that are supported by other evidence, including each of the other accounts. Further, I previously identified a number of factors that lead me to conclude that I can rely on the account the accused gave to the police in the EROI.
6. I am now going to deal with the views expressed by Dr Brett and Dr Pascu about the reliability of the accused's various accounts.

1. Dr Brett agreed that it is possible for someone who has suffered a psychotic episode to introduce elements of what they believe (at the time of giving the account) occurred that may not have been part of what actually occurred, so as to make the account unreliable.[124]
2. Dr Brett also agreed that, generally speaking, versions of events given closer to the event are accepted as more reliable. However, he said that in the case of a person who suffers from psychosis, the situation is somewhat different, because when the psychosis is treated, the person's thoughts become clearer about what they were experiencing.[125] It is a recognised phenomenon that, with time and medication, such a person's memories will change.[126] Whether that means that what they remember later is a true representation of what happened or not is a moot point.[127]
3. The accused had started his treatment by the time he was interviewed by Dr Brett. Dr Brett noted that, in cases like this, memories do improve. However, that does not necessarily preclude the person from omitting or expanding upon information.
4. Dr Brett did not think there were significant differences between the EROI and the account the accused gave to him on 14 and 21 October 2019.[128] In Dr Brett's opinion what the accused said in his clinical interviews was consistent with what he said in the EROI.[129] With respect, while that is so in relation to much of what the accused said to Dr Brett, there are the aspects I have highlighted concerning command hallucinations which, in my opinion, involve a significant difference.
5. As I said earlier, both Dr Brett and Dr Pascu suggested that the fact that the EROI and the psychiatric interview are for different purposes means that the EROI may not explore psychiatric phenomena adequately, so that information about such phenomena elicited at a later time by a psychiatrist should not be regarded as unreliable (or inconsistent with the account given to the police) simply because it was not stated to the police. Dr Brett noted:[130]

The key issue is that the electronic record of interview is for a very different purpose than a psychiatric assessment. So he said a lot of things, in the record of interview, which a clinician would've followed up, an example being the teeth, which the police, obviously they're there to investigate a crime. So it's a different purpose, so the - so the sort of - the thing which you're concentrating on is - are different issues.

1. Dr Brett said he would explore a feeling or belief stated by the accused further in his clinical interviews than was explored in the EROI.[131] He focused on things which are of interest to a psychiatrist that are consistent with psychotic phenomena rather than things of interest to a policeman.[132]
2. Dr Brett further noted: [133]

The purpose of the clinical interview is to extract phenomenology, which is the symptoms and signs of mental illness, and so yes, from that perspective, mine is a more comprehensive assessment of his mental health than the police interview.

1. Accordingly, Dr Brett did not think the accused's statement to him that he believed the deceased wanted to kill him at the time of the alleged offence was unreliable simply because the accused did not say that to the police.[134] Dr Brett was of the opinion that the apparent difference does not affect veracity of the accused's account to him.[135] He suggested it may be an example of when people treated for psychosis can explain what they were experiencing better after treatment.[136]
2. However, in my respectful opinion, that analysis misses the point that, in his account to the police, the accused did purport to describe his thoughts and the things he was hearing, and he was asked at times to expand on what he was thinking. Secondly, the reference to command hallucinations and feeling compelled to act because of the commands, as described by the accused to Dr Brett, is a very different phenomenon to what he described to the police, which involved noises of screeching birds and planes, as well as visual hallucinations. It is difficult to comprehend why the accused would not have remembered the command hallucinations, if they in fact occurred, when he was able to recall and describe other auditory hallucinations to the police. In my opinion, it is unsatisfactory to seek to explain the discrepancy simply on the basis that the accused's thoughts continued to be disordered at the time he was interviewed by the police. The accused in fact suggested otherwise during the EROI, and at the time he was admitted to the Frankland Centre he was reporting that he was not hearing voices.
3. I note also that the way in which 'the devil' manifested in the accused's delusions was not consistent between what he said to Dr Brett and what he said in the EROI.[137]

1. Dr Pascu said that, when we think about memory, we think about the laying down of the memory, maintaining the memory and retrieving the memory.[138] Anything that interferes with any of these stages can affect what a person purports to recall of an event.[139]
2. A factor that can interfere with the retrieval of memory is trauma.[140] Dr Pascu noted that an acute psychotic event is a traumatising event, so the psychosis itself is a trauma that can interfere with the encoding and maintaining of memory.[141]
3. In Dr Pascu's opinion, it was not surprising that after treatment the accused's account would vary from what he had said previously.[142] Dr Pascu has had experience with patients who initially were not able to recall particular events, but with treatment the memories 'which were laid' gradually came back.[143] However, Dr Pascu agreed one cannot retrieve memories which were never laid.[144] It is only if memories have been laid, even within a psychotic episode involving 'tumultuous trauma', that they can be retrieved.[145]
4. The inconsistencies between what the accused said in the EROI and what he said in the clinical interviews conducted by Dr Pascu did not cause her any concerns in respect of the reliability of his account to her.[146] Like Dr Brett, Dr Pascu noted that the EROI and clinical interviews have a very different purpose.[147] She believed that in her clinical interview she got more details about the accused's mental state and his psychosis at the relevant time. She was of the view that the detectives did not focus on that issue;[148] rather they sought information to establish facts and events, whereas a psychiatrist asks further questions that look at mental state not only actions.[149] With all due respect, I do not regard Dr Pascu's characterisation of the police interview to be accurate, for reasons I have already given.
5. Dr Pascu also sought to draw a distinction between the therapeutic setting of her interview (referring to the physical setting, not the relationship) and the setting of a police interview.[150] Dr Pascu was of the view that because the accused expressed past paranoid delusional beliefs that related to the police, that may have affected the way in which he interacted with the police, although she found it difficult to say whether the accused's past delusional beliefs about the police where still present at the time of the EROI.[151] She agreed the accused was forthcoming in the EROI.[152] In my opinion, there was nothing about the EROI to suggest that the accused viewed the police suspiciously, so as to hold back information. To the contrary, he was very frank about the psychotic phenomena he had experienced, including his belief that the deceased had previously threatened to take him back to Sri Lanka and have him killed by her friends.
6. In relation to the absence of command auditory hallucinations in the EROI, Dr Pascu noted that this was not specifically explored in the EROI; in other words, the accused did not describe any command auditory hallucinations because he was not asked about them.[153] She said she identified the command auditory hallucinations by asking him questions about how he felt and going through time backwards from when he first noted he heard voices.[154] Like Dr Brett, Dr Pascu suggested that, in the EROI, the cues that could have been followed up as to the accused's psychiatric state were not followed up.[155]
7. For the same reasons I expressed in respect of Dr Brett's opinion, I am not persuaded by Dr Pascu's analysis as to why the accused's account to her of command hallucinations should be regarded as reliable when he made no mention of those phenomena in the EROI. As I noted earlier in these reasons, it is to be expected that questioning about matters such as auditory hallucinations would be approached in a non‑leading way so as not to suggest the possible existence of such phenomena. In circumstances in which the accused has not given evidence about the matters he described to Dr Pascu, it is simply not possible for me to make any assessment of the reliability of that account. That is the very reason for the rules of admissibility I discussed earlier.

1. I note that there was some questioning of Dr Brett and Dr Pascu about the possibility that the accused was 'malingering' in the histories he gave to them, in the sense that he was trying to deceive them by deliberately giving false information. It is not necessary for me to deal with the issue in any detail, as I do not consider that it is the relevant issue in respect of the accused's accounts to Dr Brett and Dr Pascu, although both experts said they had considered the matter. In my opinion, having regard to all of the circumstances of this case, it is not a question of whether the accused was deliberately endeavouring to mislead them. Rather, it is a question of whether his account to them is reliable in respect of information that I find to be additional to the admissible evidence in the EROI and in the medical notes from 4 February 2019.
2. It is sufficient to say that neither expert considered it to be an issue in the accused's case. Dr Pascu made the point that the accused had underreported symptoms to some of the medical professionals, which is not consistent with what a person who is malingering would do. Dr Brett said that, while it is difficult to tell if a patient is malingering in a single interview, it is hard to fake psychosis over a prolonged period. Dr Brett found support for the absence of malingering in the records from the accused's stay in the Frankland Centre from 4 February 2019. Of course, there is also evidence from Gayan that the accused suffered psychotic symptoms prior to the alleged offence, and the accused was on medication for his mental illness. It is also apparent that the deceased was concerned that the accused was unwell. All of those facts militate against the possibility that the accused took the opportunity to fabricate what is ostensibly a psychotic episode to explain a killing that was not psychotically motivated.

1. I find that the accused's accounts to Dr Brett and Dr Pascu were largely consistent with the background facts I have found and the account given by the accused in the EROI.
2. The accused's account of his deteriorating mental state and mounting persecutory delusions up until the incident, which included a belief that his wife was planning to cause him harm, is consistent with the facts I have already found.
3. However, I am not satisfied that the accused held a belief that there was an imminent risk that he would be killed or harmed by the deceased at the time he picked up the knife and attacked the deceased. Further, in the absence of direct evidence from the accused, I am not prepared to give any weight to the accused's account to the experts that he was experiencing command hallucinations commanding him to kill the deceased, which he was unable to resist.
4. I am satisfied that I can rely on what the accused said to the police, together with what he then said to Dr Jones and Dr Griffiths, as a relatively accurate account of the psychotic phenomena he was experiencing at the time he killed the deceased. On that basis, I find that the accused was experiencing distressing psychotic phenomena which had built up over time and came to a 'crescendo'[156] on the morning of the offence. The accused killed the deceased to end the psychotic torment he was experiencing.

1. In the context of dealing with the facts relevant to the alleged offence, I have outlined in broad terms the accused's interaction with the hospital system in 2014, his treatment in Sri Lanka in 2015 and his deteriorating mental state leading up to the incident in which he killed the deceased.
2. The evidence of both Dr Brett and Dr Pascu was that the level of psychosis operating on the mind of the accused at the time of the alleged offence, and the impact it had on his capacity to know that he ought not to inflict the violence he inflicted on the deceased, must be considered in light of the accused's psychiatric history. That history, as obtained from the accused and discerned from the medical records and other evidence (referred to by the psychiatrists as 'collateral evidence'), is set out in the reports of Dr Brett and Dr Pascu. Although some of the information they referred to is set out in my outline of the facts above, it is necessary to outline what each of the experts said about that information to provide context for their opinions. It is also necessary, however, to have regard to my rulings about the use that can be made of the histories given by the accused to the psychiatrists.

Accused's psychiatric history prior to 3 February 2019

1. On the basis of her analysis of the history given by the accused and the collateral evidence, Dr Pascu said she believed the accused started to become mentally unwell soon after his arrival to Australia in 2002. He had difficulty deciding what to do, whether he wanted to work or study. Once he started working, he felt he could not cope. Dr Pascu noted that the process of migrating can be traumatic and could account in part for the decline of the accused's mental health. In general, psychological stress can bring on the 'beginnings' of mental illness.
2. Dr Pascu thought it was likely that the accused had experienced psychotic symptoms before 2002, but he was more able to articulate the fact he was experiencing such symptoms later on.
3. The accused told Dr Pascu that he went to a GP in 2002, and was referred to a community mental health service. Dr Pascu was led to understand that the accused saw a nurse, rather than a psychiatrist. It was not clear on how many occasions he saw the mental health professional, but it appeared that the accused was able to continue to function adequately at that time.
4. The accused told Dr Pascu that sometime in 2006 or 2007 he again felt stressed and depressed. He also felt that friends were pushing him away. It appeared to Dr Pascu that that was when the accused began to feel 'unsafe in the world' and to experience a delusional atmosphere. Dr Pascu said that such feelings are symptoms usually experienced by someone at the beginning of an evolving mental illness.
5. The accused then told Dr Pascu that when he moved to Western Australia for work, he was fine initially with the change of environment. However, around 2008 he started to hear noises and voices putting him down, and he became more depressed. He described the beginning of command hallucinations (voices telling him to jump in front of train or to take 'an overdose'). That was also when he started to hear bird noises and felt someone was after him. The accused told Dr Pascu that, in hindsight, he thinks he started to isolate himself from people. Dr Pascu said that is common at the early stages of a psychotic illness.
6. Both psychiatrists referred to the fact that the accused was admitted to the mental health unit at SCGH and the SDMHU in 2014, after the incident when he was working at the Frankland Centre, which was the accused's first formal contact with psychiatric services in WA. Dr Pascu noted that during his admission to the mental health units in 2014, the accused described delusions, hallucinations, noises and disorganised thoughts, as well as a depressed mood, and that the accused was diagnosed with 'psychotic depression', which Dr Pascu explained is a more severe form of depression. As I noted earlier, the diagnosis recorded upon the accused's discharge from the SDMHU was 'situational crisis in the context of culturally appropriate concerns'.[157] I explained the context of that diagnosis at [110] above. It is not clear whether that was regarded as the context for the diagnosis of 'psychotic depression', or a separate diagnosis. Having regard to the views expressed by Dr Pascu and Dr Brett, it does not matter.
7. The opinion of both experts was that the discharge summary did not address the reasons why the accused was admitted to a secure ward, what was done to improve his mental health, or a plan for his treatment upon discharge. Dr Brett was of the opinion that the wrong diagnosis was made. While I accept that, having regard to all of the circumstances of the accused's presentation at that time, the wrong diagnosis may have been made, the context in 2014 supported the conclusion that there were cultural issues at play in the accused's onset of symptoms. I am mindful that any analysis at this point in time is made with the benefit of the accused's history since his discharge from SDMHU. Ultimately, the only point arising from the expert's review of the 2014 admissions is that the accused is likely to have been suffering at that time from the mental illness that has now been diagnosed.
8. Dr Pascu noted that the accused was discharged to his GP with no psychiatric follow-up.
9. Both psychiatrists were of the view that the progression of the accused's mental illness was evident from the statement of the accused's brother, Gayan. That evidence confirmed that the accused did not get better after his discharge from the SDMHU, resulting in Gayan taking the accused back to Sri Lanka for treatment. Dr Pascu was of the view that Gayan was 'in tune' to pick up when the accused was relapsing in his symptoms. In Sri Lanka the accused was treated with a combination of antidepressant medication (fluoxetine) and a small dose of an antipsychotic drug (olanzapine). It appeared to Dr Pascu that the prescribed medication was mainly intended to treat the accused's symptoms of depression. Dr Pascu did not consider the small dosage of the antipsychotic medication to be sufficient to act as an antipsychotic. Rather it was consistent with being used as a mood stabiliser.
10. On the available collateral evidence, it appeared to Dr Pascu that, after the accused returned to Australia, he was reasonably stable for a while. However, although the accused's symptoms were being treated, that did not mean that his illness had 'completely disappeared'. Dr Pascu noted that olanzapine has a sedating side effect, which interfered with the accused's work, so he stopped medication.
11. After the accused returned to Australia with the deceased in 2016, the deceased provided support to Gayan in dispensing medication to the accused.
12. Based on what the accused told her, Dr Pascu noted that the accused stopped taking his medication in 2017. The accused gave a similar time frame to Dr Brett, telling him he had not been taking his medication for at least a year before the alleged offence. Both experts explained that it is common for people who are being treated for symptoms similar to the accused's to stop taking medication when they feel better, motivated at least in part to avoid the side effects of the medication.
13. Based on the history given by the accused, Dr Pascu considered it likely that the accused had not been treated since 2017. My impression from Gayan's statement is that the period during which the accused had not been taking medication was not as long as that, even though it is an agreed fact that the accused had not been taking his medication for 'a long time', which I accept. It is sufficient to note that the accused had not been medicated for a period that was sufficiently long for his psychotic symptoms to resurface, increase and become acute.
14. Dr Pascu believed that the accused started to incorporate the deceased into his delusional system from February 2018. He was hearing a derogatory voice (calling him useless) which he believed was his wife's voice.
15. The psychotic phenomena described by the accused to Dr Pascu and Dr Brett are set out at [251] and [254] respectively. Dr Brett noted that the symptoms had been getting worse over time prior to the alleged offence and were more acute on 3 February 2019.
16. Dr Brett explained that visual hallucinations are symptoms of psychosis and schizophrenia, and support diagnoses of those disorders. Auditory hallucinations are also symptoms of psychosis and schizophrenia, but they may also occur in other disorders. In arriving at an appropriate diagnosis, it is necessary to have regard to the full picture.
17. Dr Brett felt that some aspects of the accused's auditory hallucinations may have had cultural significance. He sought to clarify that through the interpreter, in particular in respect of the accused's belief that he was to be taken back to Sri Lanka to be killed, but he was not able to get clarity about that matter.[158] I noted earlier in these reasons that both the accused and the interpreter confirmed during the EROI that some of the accused's hallucinations had cultural significance, for instance the coming of wagtails, but there was no suggestion that the notion of returning the accused to Sri Lanka as part of a murder conspiracy had cultural significance. It may be inferred that the accused incorporated that into the delusion that his wife intended to kill him because she had friends in Sri Lanka whom he believed would be prepared to assist her.
18. Dr Brett was of the view that, while the accused had held the belief for some time that his wife was conspiring to kill him in Sri Lanka, it was more intense at the time of the offence. Dr Brett was asked to consider the fact that the accused did not tell the police that, at the time he attacked the deceased with the knife, he had in mind that the deceased intended to kill him. Apart from Dr Brett's view that the accused's account in the EROI may not have been complete, because his mental state was not probed sufficiently (which is a proposition I have not accepted), Dr Brett did not think the difference between what the accused said in the EROI and what he told Dr Brett made any difference to his opinion. He said:[159]

I think the important issue is that he may have been having those beliefs for some time, but on the morning of the offence they became a lot more acute and a lot more intense and so they were involved with the other things he was experiencing as well. And so the sum, if you like, was greater than the parts.

1. One of the matters on which Dr Brett relied as an indication that the accused was fearful of the deceased was the fact that, based on what the accused said to Dr Brett, he was sleeping in a separate room to his wife and that he locked the door. While he also told the police that he was sleeping in a separate room, he denied locking the door. In my view, the difference is not particularly important. The accused's attack on the deceased did not occur at a time when he was going to sleep in his room. While I accept that the accused's symptoms fluctuated, the fact is that he returned home after work and he called the deceased to let her know he was coming home. In my view that is not consistent with a pervasive fear that is evidenced by his sleeping in a locked room. Even if he did lock his room, it could be explained by reasons other than fear, such as a desire for privacy.
2. The accused told Dr Brett that he had been sleeping badly for the five nights before the alleged offence. Dr Brett noted that a lack of sleep is significant, as it is often a 'relapse indicator' in respect of mental illness, and that was confirmed in the accused's case by Gayan's statement. In Dr Brett's opinion, the difference between what the accused said to him and what he said in the EROI as to the number of nights without sleep (five rather than three) was not significant.
3. The fact that the accused was keeping a bucket in his room for urination was another matter of some significance in the psychiatrists' assessment that the accused's psychosis was active. Dr Brett explained that it showed the accused was not looking after himself, which was an aspect of his psychotic behaviour. It may also have been an indication that the accused was fighting with the deceased.
4. Dr Brett also placed some importance on the accused's 'delusions of reference', such as his belief that he had seen dentures in the bathroom, which he interpreted as an omen of death or more generally that something bad was going to happen to him. Another example would be his claim that he saw wagtails. The delusions of reference reinforced the accused's belief that he was going to be killed.
5. Dr Brett noted that the accused described becoming increasingly anxious and frightened, which again was consistent with the accused being psychotic. Dr Brett explained that experiencing psychotic phenomena can be anxiety-provoking and very frightening.
6. Dr Pascu was of the opinion that, in the last week before the incident, 'all of the stars were aligned' in respect of the accused's mental illness, in terms of the intensity of the accused's psychotic phenomena, his anxiety, paranoia and fear, all of which, in Dr Pascu's opinion, led to the offence.[160]

1. I referred earlier to the diagnosis made of the accused's mental illness at the Frankland Centre.
2. Dr Brett diagnosed the accused with chronic paranoid schizophrenia, which at the time of the offence was extremely severe.[161] Dr Pascu diagnosed the accused as suffering from acute paranoid psychosis.[162]
3. Dr Pascu explained that the diagnoses are not inconsistent. Dr Pascu's diagnosis is one that is made at an early stage of psychosis, when it is thought that there may be a need to review the diagnosis over time. However, at the hearing she agreed with Dr Brett's diagnosis of chronic paranoid schizophrenia.
4. Both psychiatrists also diagnosed the accused with a paranoid schizoaffective disorder, which, in addition to the accused's pattern of psychotic symptoms (including auditory and visual hallucinations, paranoia and delusional beliefs), recognises that those symptoms were generally also associated with mood disturbances, including irritability and aggression. It is sufficient to say that both experts relied on the history from the medical records and other collateral information (for instance from Gayan), which I have outlined above, and the history given by the accused in respect of his mental illness.
5. On the basis of the expert evidence and the history outlined above, I am satisfied on the balance of probabilities that the accused had a mental impairment, namely the mental illness of chronic paranoid schizophrenia, at the time of the alleged offence. I am also satisfied that he was suffering from an acute onset of psychotic symptoms as a result of that mental illness.

The effect of the mental impairment at the time of the offending

1. In assessing the impact of the mental impairment on the accused's behaviour at the time of the alleged offence, both Dr Brett and Dr Pascu had regard to the accused's conduct the previous night, in particular the fact that his manager, Mr Safari, had noticed that the accused did not seem to be his normal self, and the fact the accused left work early. Dr Pascu relied in part on the accused's account to her that he felt he could not do his work that night. Putting that to one side, for the reasons I have already given, there remains Mr Safari's evidence and the fact the accused left work early.
2. Dr Brett considered Mr Safari's observations to be useful, because he was someone who knew the accused. Dr Brett accepted there could be explanations for Mr Safari's observations, other than that the accused was mentally unwell, but when the observations are considered in the light of all the other available evidence, Dr Brett considered them to be consistent with a decline in the accused's mental health. When a person suffers from mental illness, a change in the person's pattern of behaviour, such as leaving work early, tends to indicate such a decline.
3. I have found earlier in these reasons that the CCTV footage of the accused at the carpark, where he was not able to retrieve his car, and in the taxi on his trip home after work does not allow any firm conclusion to be drawn about his mental state. As I noted earlier, although the accused appears distracted at times and did not engage with the taxi driver other than to give directions, that is not unusual behaviour. Both Dr Brett and Dr Pascu agreed that there was nothing in the footage to indicate the accused was psychotic. However, they also noted that there is nothing in accused's behaviour in the footage that is inconsistent with someone who was psychotic at the time. The fact that he was able to give directions does not shed light on his mental state, as persons who are psychotic may be able to function relatively normally just before an acute psychotic episode.
4. The notion that a person who is suffering from psychosis may still be able to function in a relatively normal manner, at least in some respects, was also relied upon by Dr Brett and Dr Pascu to explain the fact that the accused made and ate breakfast after he returned home from work. That behaviour was not regarded by them as inconsistent with the accused being psychotic, including the fact that, almost immediately upon arriving home, he experienced the hallucination of the deceased appearing as a ghost to take him. As Dr Pascu explained, if one accepts he was truthful about that experience, a non‑psychotic person would not get on with breakfast after such an experience. As I understood Dr Pascu's evidence, a psychotic person who has experienced frightening phenomena of that kind previously and is experiencing them intermittently, will try to navigate around those experiences to get on with things he needs to do. The person may have difficulty knowing what is real. Dr Pascu also suggested that making breakfast may have been a way for the accused to distract himself. It seems to me, however, that the accused was able to get on with breakfast, despite his psychotic state, because of the routine nature of that activity. That is also consistent with Dr Pascu's explanation. However, in my opinion, it is not consistent with a scenario in which the accused feared imminent death.
5. As I noted earlier, both Dr Brett and Dr Pascu relied on what the accused told them about his mental state and what happened when he got home in coming to their conclusions about why he attacked the deceased. Part of that account was that the deceased gave him medication to try to calm him. Dr Brett believed it was the antidepressant, which would correlate with the finding of fluoxetine in the accused's blood after the incident. The accused told Dr Brett he took the medication, but that it made him feel worse and he became agitated. There is also a suggestion in the accused's account that he incorporated the fact that the deceased gave him medication as part of the delusion that she was conspiring with others to kill him.
6. The accused told Dr Pascu that when he got home a 'nightmare' was happening for him, consisting of the voices, all the noises (including planes, clicking and birds) and the visual hallucinations of the deceased's face changing into the face of a ghost or a zombie. He told Dr Pascu that he felt awful and knew he should take the tablet (as his brother had told him to) and try to sleep. He told Dr Pascu he felt like everything was going 'around and around' in his mind.
7. In his accounts to Dr Brett and Dr Pascu, the accused appeared to acknowledge that, in trying to massage oil into his hair, the deceased was trying to calm him and reduce his agitation, but it had the opposite effect. Dr Pascu concluded that the accused started feeling even more scared of the deceased and thought he was going to die that day.
8. The reference by the accused to the deceased giving him medication was something he had not said in the EROI or in the accounts he gave to Dr Jones and Dr Griffiths on 4 February 2019. Accordingly, it falls into the category of statements that I do not rely upon for the truth of the matters stated by the accused. However, there is other evidence from which an inference can be drawn that the accused did take some medication that day and that the deceased gave it to him.
9. First, there is evidence that the accused had fluoxetine in his system. Dr Brett gave evidence that the presence of that drug in the accused's blood around the time he was arrested is consistent with the accused having taken the medication that day, rather than at some much earlier time. It will be recalled that it is an agreed fact, which I have found, that Gayan sent the accused a text message the night before, telling the accused that he was sick and needed to take his medication. The accused replied that when his shift finished, he would take his medication. It is consistent with the arrangement that had been in place, as I described earlier, that the deceased would have given the accused his medication. The fact that she had brought the accused's deteriorating mental health to Gayan's attention would suggest she would wish to ensure the accused took his medication. However, it would have been expected that she would give the accused both forms of medication. Further, as the accused had told his brother he would take his medication, it is also possible he took the medication without any intervention by the deceased.
10. It might seem inconsistent with the accused's delusions that his wife was going to kill him, that he would take medication from her. However, Dr Brett did not see it that way. He noted that a person who is mentally ill can vacillate in their beliefs or attitudes, because the mental illness can fluctuate. Dr Brett considered that the accused may have had some understanding deep down that he was becoming unwell and probably needed medication. His brother had phoned him and told him he needed medication. As Dr Brett put it:[163]

He might have had one part of his brain saying, 'Yeah, my brother says I need help, I've had these experiences before, I'll take the help,' and then he may have become a lot worse after he'd taken that tablet which may have related to the tablet, it may have related just to his beliefs and - and the devil coming into him a bit later.

1. Dr Brett noted that a person can have 'islets' of sense in between psychosis. He also explained that he would have expected olanzapine (the antipsychotic medication) to have been more helpful and calmative. It is possible that fluoxetine could have made things worse, but Dr Brett acknowledged that was speculative.
2. While I accept that there were fluctuations in the accused's mental state, and that he may have experienced moments of lucidity when he acted rationally in the midst of the psychotic phenomena, followed by the onset of irrational thoughts, I am not satisfied that a factor that contributed to his motivation to kill the deceased was that she had given him a tablet to take, and that the accused believed the deceased was thereby trying to kill him. There are two reasons that prevent me from being satisfied of those matters. First, the accused did not mention the taking of medication as a relevant factor when he spoke with the police and the medical professionals soon after he killed the deceased. Secondly, I am not persuaded that Dr Brett's analogy of 'islets' of rational behaviour overcomes the incongruence of the accused accepting medication from the deceased when he was fearful that she was trying to kill him. However, consistent with what the accused told the police in the EROI, I accept that the accused thought the deceased's conduct in rubbing oil into his hair was causing him harm, in the sense that it was like the devil being put into his head.
3. Ultimately, both Dr Brett and Dr Pascu spoke of the build up of the psychotic phenomena in the accused's mind, reaching a point where he felt compelled to kill his wife. Each of them relied on the accused's account to him or her (as set out in [251] and [[[164]](2020_386.html#_Ref5 It's cumulative in [the] number of events and symptoms but also cumulative as like a crescendo thing as intensity and at the time of the offending of what he described to me that after the actual offence there was an intensifying effect of the voices to finish her off which was then followed by complete silence which we see quite often after a significant violent incident in people who have a psychotic illness and who experience auditory hallucinations. There is an intensifying effect of the voices and then they stop.

1. The accused told Dr Pascu that he then went to the lounge and, after a while, he felt like he could 'connect with the world'. That was when he thought to call the police and an ambulance.
2. As I have already indicated, based on what the accused had said to them, the opinion of each of Dr Brett and Dr Pascu initially was that the accused's motivation for killing the deceased was not because he wanted to stop the psychotic phenomena he was experiencing, but because he had to stop the deceased from killing him.[168]

1. I am now going to turn to the opinions of Dr Brett and Dr Pascu in respect of whether the accused was deprived of one of three capacities relevant to the insanity defence. They were largely in agreement in their opinions.

1. Neither Dr Brett nor Dr Pascu was of the opinion that the accused's mental impairment deprived him of the capacity to understand the nature of what he was doing. He was aware of his physical acts, namely that he was stabbing the deceased, and he was aware that his acts may kill the deceased.

1. Both Dr Brett and Dr Pascu were of the opinion, on the basis of the accused's account that he experienced hallucinations commanding him to kill the deceased and that he was not able to control himself, that the accused was likely deprived of the capacity to control his actions.
2. Dr Brett stated in his report:[169]

I believe that his mental impairment is likely to have impaired his ability to control his actions. I believe that his psychosis impacted on his ability to think clearly and make informed decisions about what he was doing.

1. However, in evidence, he said that he regarded the second limb of s 27 to be an 'equivocal limb'. He said:[170]

I think the phrase is that the - the difference between an irresistible impulse and an impulse not resisted is impossible to make from a clinical perspective, so I don't like to rely on that limb.

1. Dr Brett considers the second limb to come very close to the third limb of s 27, in that both limbs involve a capacity to make a choice to act. That is so, as I noted above in outlining the law. However, as I also noted, the scope of operation of the second limb is quite narrow, and the effect of the mental illness must be such as to have caused the accused to have acted independently of the exercise of his will. Impairment of his power to resist is not sufficient; there must be a complete deprivation of the accused's power to choose to act, as a result of the mental illness. In the case of delusions and hallucinations, the question is to what extent they controlled the accused's actions so as to deprive him of the power to choose.
2. Dr Brett is of the view that command hallucinations are not sufficient 'in themselves' to satisfy the second limb of s 27. They can result in a deprivation of the person's capacity to control their actions when they are linked with other symptoms that result in a disordered mind. In the accused's case, Dr Brett thought it was more likely that the accused would act on the command hallucinations because they were consistent with his delusions, in particular the belief that he would be killed. However, Dr Brett thought it was debatable whether that meant that the accused was deprived of control over his actions. In the final analysis, Dr Brett could not say definitively that the accused was deprived of the capacity to control his actions. Of course the standard to which I need to be satisfied is on the balance of probabilities. However, the uncertainty expressed by Dr Brett is compounded by the fact that the basis on which he did initially express the view that the second limb of s 27 was likely satisfied was the existence of command hallucinations.
3. Dr Pascu was of the opinion that the accused was more likely than not deprived of the capacity to control his actions. Her impression was that Dr Brett took a more abstract or academic approach than hers. While she agreed that the concept is 'a bit more abstract', she said she took a 'pragmatic, clinical perspective' to her analysis of whether the accused satisfied the criteria for the incapacity.[171] She said that, from that perspective:[172]

... the combination of what we call the threat control override symptoms which is command auditory hallucinations related to a persecutory delusion also associated with increased affect, agitation, anger and fear ... the triad of those three symptoms means that the risk of committing a violent offence is much higher ... [F]rom my perspective, if a person has those three symptoms at the same time ... and they tell you that at the time they just couldn't control what was happening, in my mind that would mean that he was deprived.

1. It must be said that the test is not concerned with the risk of committing a violent offence. Rather, it is concerned with the capacity to choose to act. It may be that being deprived of the power to choose to act is likely to increase the risk of a person acting violently, but to focus on the likely outcome is to distract from consideration of the real issue.
2. In any event, Dr Pascu's opinion in respect of the accused's situation was dependent on acceptance of his statements to her that he experienced auditory hallucinations commanding him to kill the deceased. When asked whether she would still regard the accused to have been deprived of the capacity to control his actions if I were not satisfied of the presence of command auditory hallucinations, Dr Pascu said:[173]

I would say that capacity was impaired, but without the command auditory hallucinations, I wouldn't say that he was deprived.

1. Dr Pascu further explained that, without the command hallucinations, the accused had the capacity to control his actions within his delusional 'reality', because he was making conscious decisions to act as he did in killing the deceased in response to the belief he had that she was plotting to harm him.

1. Both experts concluded that the accused was deprived of the capacity to know that he ought not to do the act (the third limb of s 27).
2. Initially, those opinions were based on the accused's account, which included the command hallucinations and a belief that he would be killed by the deceased imminently. Accordingly, Dr Brett stated in his report:[174]

I believe that his mental impairment deprived him of the capacity to know that he ought not to do the act. At the time of the offence he was acutely psychotic. His thoughts were confused and he could not think clearly. He believed that his wife was part of a plot to have him killed. He was frightened of her and believed he would die imminently.

1. In Dr Brett's evidence-in-chief the following exchange occurred, reinforcing the significance of what the accused had told him:[175]

So again, it's one of those times, doctor, where your opinion is informed by the whole of the interview and his description of what he was feeling - - -?---Yes.

- - - but in regards to the concept that he was commanded - him to kill his wife the fact that the accused didn't use those discrete words in the electronic record of interview does that impact on either your opinion or the veracity of his account to you in your assessment?---No, I don't think it does.

And again, he stated that he was not given an option and felt compelled to do as he was told is - and what he described to you, paragraph 11, doctor, he stated at the time he felt he had to do the act. He believed that if he did not act as he did he would be killed. He described being in a state of fear and confusion. Now, in respect of your ultimate conclusion in regards to the third limb of section 27, is that - is that the functional paragraph of what the accused told you or has some importance in regards to your final conclusion?---Yeah, I think that's a very important paragraph in regards to the final conclusion, yeah.

1. Dr Pascu explained her opinion as follows:[176]

[In] my view he was deprived of that capacity, given the fact that at the time he was acting in a psychotic reality, so his actions at the time in his psychotic reality might have been very well justified.

1. Dr Pascu later clarified that she understood it was not a question of whether the accused felt that he was justified, in his psychotic reality, but whether he was deprived of the capacity to know it was wrong. She said:[177]

So what I meant by that - I don't think he had the capacity to know that there were other choices at the time.

1. The fact that the accused called 000 did not affect the opinions of Dr Brett and Dr Pascu that the accused was deprived of the capacity to know he ought not to do the act. That issue is to be determined relative to the time the accused killed the deceased. On both accounts to Dr Brett and Dr Pascu, the accused described being brought back to reality when he saw his wife was dead. The accused did not describe such a realisation in the EROI. However, even if I disregard the accused's account to Dr Brett and Dr Pascu, the fact that he contacted the police would demonstrate a realisation that what he did was unlawful. It is clear from the authorities to which I referred in discussing the law that the question is whether the accused had the capacity to know that he ought not to do the act according to ordinary standards of right and wrong, rather than knowledge that the act was unlawful. While the two ideas may not be easily separable, I accept in the circumstances of this case that the distinction can and should be drawn.
2. Both Dr Brett and Dr Pascu were asked to consider whether their opinions would change if I were to disregard the accused's statements to them about command hallucinations and a belief that the deceased would kill him imminently, and rely only on what the accused said in the EROI and to Dr Jones and Dr Griffiths before and at the time of his admission to the Frankland Centre.
3. There are four answers given by Dr Brett which, in my opinion, indicate ultimately that Dr Brett maintained his opinion in respect of the third limb of s 27, despite the need to put to one side the accused's claims of experiencing command hallucinations in a context in which he believed the deceased would kill him imminently.
4. The first answer was in response to a question I asked:[178]

[The] question I asked, though, is would it make any difference in your opinion [as to] whether he was acting with a disordered mind at the time that ... prevented him either from being able to control his actions or to understand that what he was doing was wrong, whether he did so because he believed that she wanted to kill him or because he did not believe she wanted to kill him at that point in time but simply wanted to bring to an end the psychotic phenomena that he was suffering? --- I think because he believed that she was integral into the psychosis he was suffering, I don't think it would have made a difference, in my opinion.

1. The second answer was also a response to a question I asked:[179]

[I]f I can't say one way or the other whether in fact [the accused] was suffering a command hallucination, if there is no direct evidence of that before me, would it still be the case in your opinion that his mind was so disordered at the time that he simply ... did not have the capacity to know that he ought not to do the act? --- Yes, I think he was.

1. The third answer involved defence counsel, Ms Fedele, putting to Dr Brett the various matters on which he relied to conclude that the accused was deprived of the third capacity, omitting references to command hallucinations to kill the deceased and the delusional belief that the deceased was going to kill him imminently. The remaining propositions were as follows:[180]

I believe that his mental impairment deprived him of the capacity to know that he ought not do the act. I believe that at the time of the offence he was acutely psychotic. His thoughts were confused and he could not think clearly. He believed that he was possessed by the devil. He was experiencing perceptual disturbances (hallucinations). This included hearing airplanes and wagtails, which were a bad omen. I believe that he acted as a result of these psychotic phenomena.

1. In the following exchange, Dr Brett appeared to accept that his opinion would be the same, although his answer was qualified:[181]

[W]hat Mr Ihalahewa was suffering at that time, in the way that I've just read it, would we still be seeing the same result and still be here today? --- It would give him less motivation to act as he did. I think he would've still been deprived of the capacity but ... it would've been harder to explain it from a psychiatric perspective.

1. With respect, I do not see why it is harder to explain, given the accused's indication in the EROI that he was no longer able to tolerate the psychotic phenomena he described to the police. At one point, Dr Brett gave evidence that he could not say categorically that there was sufficient evidence, on the basis of the EROI alone, to conclude the accused was deprived of any relevant capacity under s 27. However, when I have regard to the evidence of both Dr Brett and Dr Pascu concerning the effect of the psychosis on the accused at the time he killed the deceased, there was a crescendo of disturbing phenomena, irrespective of command hallucinations and a belief of imminent death. What the accused told the police appears to reveal a disordered mind that lacked the capacity to 'think rationally' of the reasons which would lead ordinary people to consider the act to be right or wrong.
2. The fourth relevant answer given by Dr Brett was also to a question I asked:[182]

Can there be a situation where a disordered mind, because of a psychotic illness, can cause a person to act in those circumstances, that is, because they simply no longer want to tolerate the behaviour when, if they did not have the psychotic illness, they would not have acted in that way?---Yes, I think they could. I - I don't think it would happen in this case but, yes, it's a plausible hypothesis.

1. Dr Pascu initially was somewhat resistant to consideration of a scenario other than what the accused had described to her. That is evident from the following exchange in cross-examination (italics added):[183]

I'm going to ask you to theorise or assume that in respect of your opinion in regard to whether he was deprived of the capacity to know that he ought not do the act - - -? --- Yep.

In that frank psychotic episode that he's described, if he didn't believe that his wife was going to kill him in that moment that he then proceeded to kill her, would you still be of the opinion that he had - he lacked the capacity to know that he ought not do the act due to his mental state? --- It's difficult to theorise when we know that he killed because he would have been killed. Well, he believed he would be killed. Again I think it would make it less likely, but that's not the only aspect of his psychotic reality. Certainly that's the strongest aspect as far as his wife is involved, but there were other aspects of feeling threatened by her, taken home. So the killing was the ultimate reason.

Yes. And I appreciate it's a question of degree in some respects? --- Yep.

But when you use the language of 'was more likely than not deprived of the capacity to know that he ought not do the act' - - -? --- Yep.

- - - would you still be satisfied at that threshold test of whether the accused had the capacity to know that he ought not do the act if at the time he did the killing or just before he actually didn't believe his wife was going to kill him then?---It's difficult - it's difficult to say. For me it would be to assume something which I don't believe is the case - - -

Yes? --- - - - because he very clearly said that that's why he did what he did, because he felt that his life was in danger. To say that if - if he didn't believe that, it's possible.

1. Earlier, Dr Pascu had in fact expressed agreement with Dr Brett that, 'even if there was no command auditory hallucination', the accused did not have the capacity to know he ought not to do the act. However, that was in a context in which it was assumed that the accused acted in a 'frank psychotic episode' in which he believed he had to kill or be killed.[184] The exchange quoted in the preceding paragraph shows that Dr Pascu was not prepared to disregard the accused's account to her that he believed he was going to be killed by the deceased.
2. Notwithstanding Dr Pascu's reluctance to consider a scenario she regarded as hypothetical, it was sufficiently clear from her answers that aspects of the accused's psychotic reality other than command hallucinations were relevant to her consideration of whether the accused was deprived of the capacity to know he ought not to do the relevant acts, and it was possible he was deprived of the capacity, even if one removed from the scenario the command hallucinations and the accused's belief that he was going to be killed imminently.
3. Moreover, Dr Pascu did express the view that the accused was deprived of the third capacity, even if one disregards his claims of auditory command hallucinations and a delusional belief that his life was at imminent risk from his wife:[185]

If the - the torment - if he incorporated his wife in the torment of the psychosis, but did not actually believe that she was going to kill him at that point in time, so it wasn't that he acted so much out of fear of dying but out of a desire to bring to an end the torment of the psychosis, would that make any difference to your opinion? --- No. No, I think that - I think that it would still - I would still say that at the time because of the torment of the psychosis, the only way for whatever reason whether it's relationship only or both of them, the only way for him to get out of the psychosis or the situation was to do what he did.

1. More generally, Dr Pascu explained that, when considering the third capacity, it is necessary to bear in mind that a psychotic person's reasoning is defective, and he does not see questions of what is morally right or wrong in the same way as a person of sound mind, including in relation to killing someone.[186] In the delusional and hallucinatory world of the accused, who was acutely psychotic, he was not able to think rationally of the consequences or other reasons why he should choose not to commit the fatal acts.[187]

1. Both Dr Brett and Dr Pascu were asked to consider whether, in killing the deceased, the accused may have been motivated by relationship issues with the deceased or his extra-marital homosexual affairs. In particular, they were referred to passages in the EROI in which the accused appeared to say that he did not want to live with the deceased.
2. Dr Brett said that he could not find significant support for such motivation. He did not think the accused's comments in the EROI[188] reflected a scenario in which having enough of the relationship and wanting his own life somewhere else were precipitating factors for the accused's violent attack on the deceased. Dr Brett believed that when the accused said, 'Enough, enough' as the reason for his actions, he was referring to the hallucinations the accused was experiencing:[189]

He does refer to the planes, the noise, the birds and I think at that time he just felt overwhelmed by his psychotic process. His wife massaging oil into his hair was just part of all of that, giving him the medication that he just became overwhelmed and that's why he believed that she wanted to kill him and - and acted like he did.

1. I agree, except to the extent that Dr Brett may have been suggesting that the accused believed the deceased wanted to kill him imminently. Dr Brett noted there was no evidence of prior domestic violence, a point also made by Dr Pascu. Dr Brett was of the opinion that the evidence is more consistent with the accused having acted as a result of his psychosis than with a first episode of (non-psychotic) domestic violence. While I agree with that analysis, I do not agree with Dr Brett's initial view that the accused's actions were not connected with relationship issues.
2. Having regard to all that the accused said to the police and to the doctors he saw on 3 February 2019, the unhappy relationship he had with the deceased and his desire to leave the relationship could be regarded either as the result (at least in part) of his delusional beliefs and the hallucinations he had about the deceased, or as a contributing factor to those delusional beliefs and hallucinations. In my view, it is likely the relationship problems and the accused's psychosis were in a kind of feedback loop, in which both worsened over time.
3. Dr Brett was asked whether someone with a disordered mind due to a psychotic illness, who cannot reason properly as to what is right or wrong, may respond in a violent way to resolve domestic problems in circumstances where a person of sound mind ordinarily would not. Dr Brett considered that to be a plausible hypothesis, but did not think it would apply to the accused's case.[190]
4. Dr Pascu said that the accused did not indicate to her that he had wanted the relationship with the deceased to stop. The accused told Dr Pascu that he and the deceased were getting along fine, with no more arguments than any other couple. He told Dr Pascu that the deceased wanted to travel, which he had mentioned in the EROI, but he did not mention that she did not want him to leave him or that he then felt that the devil was coming him (as he had described in the EROI). In my opinion, it was very clear from the EROI that there were difficulties in the accused's relationship with the deceased. The fact he was sleeping in a separate bedroom is evidence of that. It is not to the point to say that such behaviour was part of his psychosis, because it clearly affected his relationship with the deceased.
5. In any event, Dr Pascu noted that the accused had incorporated his wife into his delusions about a year before the alleged offence, but it got much worse the week before 3 February 2019. The essence of her evidence was that what happened on 3 February 2019 was not an extreme act of violence by a person of sound mind in response to relationship problems. It was the act of a person in the grip of an acute psychosis. The impact of the accused's psychosis was a more significant driver for the accused wanting to leave the deceased than domestic issues or his desire to pursue sexual relations with men.

1. It is not necessary for me to outline counsel's addresses. They were of considerable assistance, but I have considered the issues raised on behalf of the accused in the course of these reasons and in the assessment and findings that follow. Ultimately, the issue was narrow and the defence submissions essentially reflected the evidence of the experts. The State in effect conceded that it was open for me to be satisfied on the balance of probabilities that the accused was of unsound mind at the time of the alleged offence, because he was deprived of the capacity to know that he ought not to do the act. It did not press a contrary position.

1. The accused's admissions are sufficient to prove beyond reasonable doubt that the deceased was killed, and that it was the accused who killed her by inflicting the penetrating stab wounds to her neck and chest that resulted in her death. I am satisfied that the body of evidence adduced in the trial and the agreed facts to which I have referred establish those elements of the offence of murder beyond reasonable doubt in any event.
2. Although the accused's admission that he intended to kill the deceased is not relevant, in terms of proving that element of the offence, until I have determined the issue of whether the accused was of unsound mind at the relevant time, it is a proper acknowledgement, in my opinion, of the irresistible conclusion to be drawn from the nature of the injuries inflicted on the deceased. That conclusion is reinforced by the accused's admission during the EROI that he intended to kill the deceased - to 'finish her off'. In my opinion, this is a case in which the formation by the accused of the intention to kill the deceased, and the brutality with which he carried out that intention, are relevant to the question of whether the accused was labouring under a mental impairment that disordered his mental processes to the extent that he was deprived of the capacity to know that he ought not to do the act. I will return to that point later.
3. In the course of outlining the facts, I have made a number of findings about the circumstances of the accused's relationship with the deceased, the accused's mental decline leading up to the morning of 3 February 2019, and the circumstances in which the accused killed the deceased.
4. In short, the accused and deceased had been unhappy in their relationship. That may have been in part because of the accused's sexual preference for men. It was also because of the accused's psychotic symptoms and the fact that he incorporated the deceased into his paranoid delusional beliefs. Whether or not the marriage was an 'arranged marriage', it appears to have been ill-fated from early on, a fact that was not lost on the accused's neighbours. However, although the accused had wanted to leave the deceased, she did not want him to leave. Of course, we do not have the deceased's account of events and the reasons why she would want to continue to live with the accused. We do know that the deceased had cooperated with Gayan to administer medication to the accused for his psychiatric condition, and that, despite the fact that she may have been unhappy in the marriage, she cared sufficiently for the accused's welfare to contact Gayan when it appeared the accused's mental condition was deteriorating in the days leading up to 3 February 2019.
5. The signs of that deterioration were obvious to Gayan when he visited the accused's unit. They included the fact that the accused had become reclusive in his room and was urinating in a bucket in his room. The accused had stopped taking his medication. Gayan sought to engage with the accused to ensure he recommenced taking his medication.
6. When the accused returned from work on the morning of 3 February 2019, it was obvious to the deceased that he was tense, as she sought to soothe him by massaging oil into his hair. However, in other respects, the accused behaved in a normal way, making himself breakfast and eating it. After asking the deceased to desist with the hair oil, he had another coffee. However, they argued about the massage and, in the circumstances I described in detail earlier, the accused attacked the deceased with the knife with considerable and persistent violence, causing her death.
7. I am satisfied on the balance of probabilities that the accused was suffering from a mental impairment, namely paranoid schizophrenia, at the time of the alleged offence. I am also satisfied on the basis of what the accused described to the police in the EROI and what he said to medical professionals soon after, in the period up to and including his admission to the Frankland Centre, that the accused was acutely psychotic at the time he killed the deceased. In arriving at that conclusion, I have relied on the opinions expressed by Dr Brett and Dr Pascu in that regard.
8. The issue is whether the accused was deprived of one of the relevant capacities under s 27 of the Criminal Code when he killed the deceased.
9. I am satisfied on the balance of probabilities that, in attacking the deceased, the accused was motivated, at least in part, by his delusions that the deceased intended at some stage to harm him. Those delusions included the belief that, in massaging hair oil into his hair, the deceased was imbuing him with something evil, which added to his torment. They also included a belief that the deceased was plotting with her friends to kill him. However, I do not find that the accused killed the deceased because he believed that he was at imminent risk of being killed or even harmed by the deceased at the time of the offence. More particularly, I am not satisfied that the accused was hearing voices commanding him to kill the deceased and telling him it was necessary to do so in order to avoid being killed himself. Rather, the accused was experiencing distressing psychotic phenomena which had built up over time and came to a 'crescendo' on the morning of the offence. The accused killed the deceased to end the psychotic torment he was experiencing.
10. As I noted earlier, I consider that the fact the accused intended to kill the deceased and the brutality with which he carried out that intention are relevant to the issues whether the accused acted in a psychotic state and lacked one of the relevant capacities for the purposes of the insanity defence. That is because there is no evidence that the accused had behaved in a violent manner towards the deceased or anyone else in the past. Despite difficulties in their relationship and the fact that the accused had suffered psychotic symptoms for some time, he had sought other means to deal with his issues, mainly by avoiding contact with the deceased.
11. That is not to say that persons of sound mind and prior good character are incapable of committing violent acts and acting with murderous intent. Examples of such cases can be found readily in the annals of criminal justice. However, when considered against the history of the accused's relationship with the deceased and his mental decline, the extreme nature of the accused's reaction to the deceased's acts in trying to soothe the accused when he returned from work on 3 February 2019 tend to reinforce the conclusion that he was acutely psychotic and incapable of reasoning as a person of sound mind would reason. To a sound mind, it would have been obvious that the deceased was acting with a caring intention in attempting to soothe the accused. She had demonstrated her concern about the accused's deteriorating mental condition when she had contacted his brother.
12. Rather than appreciate that the deceased was trying to care for him, the accused continued to incorporate the deceased into his delusional paranoia, perceiving her as someone who was evil, in the nature of a zombie, and complicit in the tormenting auditory and visual hallucinations he was experiencing, including noises and omens of impending doom.
13. The accused's condition did not deprive him of the capacity to understand the nature of the acts he committed in stabbing the deceased and causing her death. In fact, his admissions in the EROI support the conclusion that he well knew what he was doing.
14. Despite my rejection of command hallucinations as a factor that compelled the accused to act as he did in killing the deceased, the circumstances described by him to the police and to the medical professionals soon after raise the possibility that the accused did not have the capacity to control his actions. At one point he said to Dr Griffiths that he 'could not control it'. However, his account to the police was of deliberate behaviour calculated to bring an end to a situation he could no longer bear. As he said, he had had enough. On balance, having regard to the opinions of Dr Brett and Dr Pascu, I am not satisfied that the accused was deprived of (in the sense of completely lacking) the capacity to control his actions, being the second limb of s 27 of the Criminal Code.
15. However, I am satisfied on the balance of probabilities that the accused was deprived of the capacity to know that he ought not to do the act which killed the deceased (the third limb of s 27 of the Criminal Code). I am satisfied that the accused became overwhelmed with the psychotic symptoms and the resulting torment he was experiencing at the time, which left him with no ability to reason rationally as to what was right or wrong according to ordinary standards. I am satisfied he was not able to appreciate the wrongness of the acts of violence he committed upon the deceased which caused her death.
16. Tragically, the deceased lost her life while trying to help the accused, whose mental illness had not been adequately managed, in part because of his failure to take his medication, resulting in a calamitous eruption of his psychosis into violent and fatal acts. Sadly, it is not the first case of its kind.

1. For the reasons I have given, I am satisfied on the balance of probabilities that, at the time he killed the deceased, the accused was deprived of the capacity to know that he ought not to do the act.
2. Therefore, I find the accused not guilty of murder on account of unsoundness of mind, and I will enter a judgment of acquittal on that basis.
3. The consequence of an acquittal on account of unsoundness of mind is set by law. Section 21(a) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (Criminal Law (Mentally Impaired Accused) Act) provides relevantly that, if an accused is acquitted of the charge of murder on account of unsoundness of mind, the court must make a custody order, which is an order that the accused be kept in custody in accordance with pt 5 of that Act.[191] Part 5 of the Criminal Law (Mentally Impaired Accused) Act provides, by s 24(1), read with the provisions that follow, that an adult accused in respect of whom a custody order has been made is to be detained in an authorised hospital, a declared place or a prison, as determined by the Mentally Impaired Accused Review Board, until released by an order of the Governor.

1. I enter judgment of acquittal of murder on account of unsoundness of mind.
2. I make a custody order pursuant to s 21(a) of the Criminal Law (Mentally Impaired Accused) Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Henceforth, as is customary, I will refer to Ms Withana as 'the deceased'. No disrespect is intended to the memory of Ms Withana or to her family by the use of that formal description.

[6] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [48] (Gummow, Hayne & Crennan JJ; Gleeson CJ agreeing at [5]).

[7] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 (Hone) [13] (Steytler P), [124] ‑ [125] (Miller JA).

[8] Hone [13] (Steytler P), [124] ‑ [125] (Miller JA).

[9] R v Hall (1988) 36 A Crim R 368, 361 (Allen J); Hone [125] (Miller JA).

[12] Criminal Code s 1(1) - definition of 'criminally responsible'.

[13] Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 (Hawkins), 517; Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 (Ward) [20] (Kennedy J), [39] (Pidgeon J), [52] ‑ [56] (Wallwork J), [103] (Scott J). Wheeler J was alone in coming to the view that Hawkins did not mandate the order of consideration of the issues: [126] ‑ [146]. Pidgeon J qualified his acceptance of the proposition: [40] ‑ [42].

[15] Cf Cooley v The State of Western Australia [2005] WASCA 160 [28] ‑ [33] (Roberts‑Smith JA; Wheeler & Pullin JJA agreeing); Hawkins, 513.

[17] R v Porter [1933] HCA 1; (1933) 55 CLR 182.

[19] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 60.

[20] The State of Western Australia v Jones [2018] WASC 395 (Jones) [43].

[21] R v Radford (1985) 20 A Crim R 388 (Radford), 396. As Jenkins J noted in Jones, the comments of King CJ in Radford in respect of what constitutes a 'disease of the mind' were generally approved by the High Court in the context of the provisions of the Criminal Code at that time in R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 60.

[23] The State of Western Australia v Marotta [2018] WASC 329 (Marotta) [53] ‑ [56].

[25] See the discussion in Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 (Stapleton), 371 of the formulation of the relevant rules in the opinion of the judges to the House of Lords in M'Naghten's case.

[27] Evans v The State of Western Australia [2010] WASCA 34 (Evans).

[28] R v Porter [1933] HCA 1; (1936) 55 CLR 182 (Porter).

[43] The State of Western Australia v Knock [2020] WASC 246 [51].

[46] R v Falconer [1990] HCA 49; (1990) 171 CLR 30.

[47] Marotta [42] ‑ [45] (citations omitted).

[48] In referring to evidence in the prosecution brief, I will use the designation PB followed by the page number, rather than referring to Exhibit 3.

[50] This was also tendered as Exhibit 5.

[57] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 (Ramsay v Watson), 647.

[63] Nguyen v The Queen [2020] HCA 23 (Nguyen) [23] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).

[67] PB 568 ‑ 573 ('mental health triage' report dated 4 February 2019); Exhibit 9 (materials provided to Dr Pascu), 3 ‑ 4. The latter appears to be the original handwritten notes on which the electronic records at PB 568 ‑ 573 were based.

[70] For convenience and the avoidance of confusion by the use of Mr Ihalahewage's surname, I will henceforth refer to him by his first name.

[73] PB 667 ‑ 668 (Sir Charles Gairdner Hospital admission) and 669 ‑ 671 (admission to Mental Health Unit at the Swan District Hospital).

[74] PB 669 (SDMHU discharge letter, 30/05/2014).

[75] PB 11 ‑ 17 (photographs of the items).

[76] PB 575. This is not referred to in the Agreed Statement of Relevant Events.

[83] He spoke in Sinhalese. What he said has been interpreted by a Sinhalese interpreter who listened to the call.

[108] Exhibit 9, 2A (letter of Dr Wojnarowska, 11/02/2019).

[156] As will appear below, this is a description used by both Dr Brett and Dr Pascu. While I do not accept that the psychotic phenomena included all of those relied on by Dr Brett and Dr Pascu, I consider it to be an apt description of the build up of the psychotic phenomena the accused was experiencing.

[164] I note that Dr Brett said in answer to questions from me that his description in his report of what the accused told him did not contain all of the details. It was an outline.

[191] Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 3 - definition of 'custody order'.