Criminal procedure ­ Trial by Judge alone ­ Insanity ­ No dispute in relation to medical evidence ­ Turns on own facts

Criminal Code (WA), s 1, s 4, s 26, s 27, s 28, s 283, s 317, s 370, s 371, s 391, s 392

Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 5, s 21, s 24

Criminal Procedure Act 2004 (WA), s 93, s 118, s 126(1)(d), s 149(1)

Verdict of not guilty on all counts on account of unsoundness of mind

Armanasco v The Queen (1951) 52 WALR 78

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

Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254

Cooley v The State of Western Australia [2005] WASCA 160

Li v The Queen [2000] WASCA 340

The State of Western Australia v Tarau [2005] WASC 290

1 JOHNSON J: The accused, Lenard Iley, is charged on indictment with the following offences:

(1) On 10 October 2004 at Applecross Lenard Iley unlawfully wounded James John Gatti.

(2) On 14 October 2004 at Como Lenard Iley stole from Luke Alan Jamieson, with violence, a mobile telephone the property of Luke Alan Jamieson.

And that Lenard Iley did bodily harm to Luke Alan Jamieson.

(3) On 14 October 2004 at Como Lenard Iley unlawfully assaulted Luke Patrick Cerney and thereby did him bodily harm.

(4) On 16 October 2004 at Applecross Lenard Iley attempted unlawfully to kill Ashley William Hall.

(5) On 16 October 2004 at Ardross Lenard Iley attempted unlawfully to kill Sam Najaf Alamdari."

2 On each count the accused pleaded not guilty on account of unsoundness of mind pursuant to s 126(1)(d) of the Criminal Procedure Act 2004 (WA) ("the Act") and s 27 of the Criminal Code (WA) ("the Code").

3 On 27 April 2006 the accused made application for an order that the trial of the charges be by a Judge alone. The application was heard by me on 10 May 2006 and was not opposed by the State. At the conclusion of the hearing I granted the order for a trial by Judge alone as I was satisfied that it was in the interests of justice to do so as neither the facts nor the accused's intention were in dispute and the only issue for resolution was whether the accused was of unsound mind at all relevant times: see s 93 and s 118 of the Act.

4 The trial took place on 6 June 2006 and proceeded by way of the tender of documentary evidence. No witnesses were called and the State did not adopt a position with respect to the issue of insanity. That issue was left for me to determine on the available material.

5 The prosecution prepared and tendered by consent a statement of material facts and incorporated into that statement all documents contained in the prosecution brief. Counsel for the accused agreed that the entirety of that material could be relied upon in determining the charges in the indictment. Further, it was conceded on behalf of the accused that this body of evidence was sufficient to establish inferentially and beyond reasonable doubt that the accused had the intention to kill which is a necessary element of the attempted murder charges in count 4 and count 5 on the indictment.

6 Following the tender of the documentary evidence, counsel for the accused formally raised the defence of insanity with respect to each count on the indictment and tendered, by consent, the following psychiatric reports in addition to those already contained in the prosecution brief:

(1) Report of Dr Mircea Schineanu dated 22 August 2005.

(2) Undated report of Dr Adam Brett together with the report of Associate Professor Arya dated 13 April 2004 identified by Dr Brett as a source of information available to him in preparing his report.

Further, on behalf of the accused, an unsigned statement of Pranee Iley, the accused's mother, was tendered by consent.

7 The material which I have described represents the entirety of the evidence available to me to determine the charges against the accused.

8 The statement of material facts which was read to the Court before being tendered into evidence is as follows:

"Count 1

On 10 October 2004 James John Gatti (Gatti) competed in the State Rowing Championships held at Canning Bridge, Applecross. At about 11.15am he walked with his girlfriend to Dewsons supermarket on the corner of Canning Highway and Kintail Road, Applecross.

Gatti entered Dewsons, selected some items and lined up at the check out. He talked with the checkout operator whom he knew. He saw the accused Lenard Iley (Iley) standing at another checkout.

Iley had entered Dewsons at about the same time as Gatti. He selected a dozen eggs and stood at the adjoining checkout. He looked over at Gatti a number of times. Neither of Iley nor Gatti spoke to one another. Iley paid for the eggs and then leaned over and removed a pen from the area about the checkout. Iley left Dewsons, placed the eggs in his car and returned to Dewsons.

Iley approached Gatti from behind as Gatti talked to the checkout operator. Without warning Iley raised his arm and struck Gatti to the right hand side of his face with the pen and punctured Gatti's skin.

Gatti turned toward Iley. Iley again lunged at him with the pen with the tip pointing toward Gatti. Gatti stepped back and successfully prevented contact. Iley dropped the pen, walked from the store and drove away in his vehicle.

Gatti sustained a puncture wound to the right cheek anterior to the masseter muscle. There was no evidence of a wound on the mucosal surface. The injury was consistent with the mechanism described: See Medical Report at PB page 225.

COUNT 2

On 14 October 2004 Luke Alan Jamieson (Jamieson), photocopy technician, attended the premises at Suite 3-11 Preston Road, Como, Western Australia.

At about 12.40pm Jamieson received a phone call on his Nokia 6610 mobile phone. He walked outside the building and stood by the glass entry doors to take the call. During the course of the telephone conversation Iley approached Jamieson who took a side step to allow entry by Iley into the building. Iley did not enter the building but stood in front of Jamieson.

Without warning Iley struck Jamieson a number of times with a right clenched fist in an uppercut motion to the left side of his head. The force of the blows caused Jamieson to stumble backwards and toward the glass entry doors and to drop his phone. Jamieson opened the glass doors, fell inside the building and closed the doors behind him. Iley bent down, picked up Jamieson's phone and walked in a casual manner down Preston Street toward the river.

Jamieson sustained bruising around the forehead and left check: See Medical Report PB page 249.

COUNT 3

At about 5.15pm on Thursday 14 October 2004, Luke Patrick Cerney (Cerney) walked south along Mary Street, Como.

Cerney heard Iley approach him from behind and then walk closely to him. Cerney increased his pace and crossed Ednah Street, Como. Cerney heard a corresponding increase to Iley's pace. Cerney turned to the right as Iley drew closer to him. Iley struck Cerney with a kick to the right side of his face.

Cerney asked Iley what he was doing. Iley stood for several seconds and then turned around and walked in a northerly direction along Mary Street. Cerney did not know nor had ever met Iley before.

Cerney sustained tenderness to the left mandible with redness consistent with recent trauma. See Medical Report at PB page 1.

COUNT 4

At about 9.45am on Saturday 16 October 2004 Ashley William Hall (Hall) and a friend attended McDonalds situated on Canning Highway, Applecross. Hall and his friend drove their motorcycles to McDonalds and parked in the south - western end of the car park there.

Hall and his friend ordered a meal and ate at an outside table near the northern front entry to the store. They then returned to their motorcycles. Hall realised that he did not have his keys and he returned to the table to look for them. Iley stood between Hall and the table. Hall walked toward the table. Iley stepped toward Hall and punched him in the stomach. Iley then pulled Hall toward him by the neck and stabbed Hall to the right side of the chest and to the stomach with a knife of approximately 35cm in length. Hall did not know Iley and had not seen him before.

Iley put the knife down the back of his pants after he stabbed Hall. He walked calmly in a southerly direction across Canning Highway to the Canning Bridge Motor Lodge where witnesses lost sight of him.

Hall sustained stab wounds to the right lateral chest wall and to the anterior abdominal wall, lacerations to the liver, diaphragmatic tear, bleeding from the right superior epigastric artery, perforated gall bladder and bleeding from the intercostal artery. He underwent management in the Intensive Care Unit, laparotomy and repair of the diaphragm, cholecystectomy, suturing to the liver lacerations, packing of the abdomen and exploration and repair of the chest wound with insertion of a chest drain. The injuries were consistent with having been inflicted as alleged and were of such a nature as to interfere with health and comfort, to endanger or be likely to endanger life and to cause or be likely to cause permanent injury to health: See Medical Report at PB page 229.

COUNT 5

At about 2.30pm on Saturday 16 October 2004 Sam Najafi Alamdari (Alamdari) was at his home address being 2 Enard Place, Ardross. Alamdari and his uncle were weeding the front garden. Iley approached them and asked for the time and directions to Garden City Shopping Centre. Alamdari's uncle advised Iley as to the time and provided him with directions to Garden City Shopping Centre.

Iley then reached behind his back with his right hand and produced a knife approximately 35cm in length. He reached out with his left hand, grabbed Alamdari by his right shoulder, pulled Alamdari toward him and then stabbed him in the epigastric area. Alamdari fell to the ground. Iley walked slowly and calmly away in a southerly direction towards Garden City Shopping Centre. Alamdari's uncle followed after Iley in his car but eventually lost sight of him.

Alamdari sustained a stab wound to the right lower thoracic cage. He further sustained serious internal injuries, including diaphragmatic laceration, damage to the liver, pancreas, superior mesenteric vein, superior mesenteric artery, splenic vessels and aorta. He underwent emergency median sternotomy and midline laparotomy with repair of the superior mesenteric vein, superior mesenteric artery, distal pancreatectomy and a massive blood transfusion. The injuries are consistent with having been stabbed in a downwards direction with a long bladed knife. The injuries were life-threatening and interfered with health and comfort. Alamdari is at slightly higher risk of developing diabetes in the future and at a slightly higher risk of intra abdominal injury secondary to physical trauma in the course of contact sport for example due to the adhesions inside: See Medical Report at PB page 209.

ARREST

Iley was arrested at his home address being 67 Dickenson Way, Booragoon. He was found in possession of a knife. Illey was taken to the Fremantle Detectives Office where he declined the opportunity to participate in a video taped record of interview. Iley was processed through the Fremantle Lock Up where the charges were preferred."

9 There are a number of other facts to which I consider it necessary to specifically refer. In determining both intention and capacity it assists to consider to actions of the accused at the relevant time. Indeed, counsel for the accused has referred the Court to evidence of the accused's conduct and demeanour during the commission of the offences.

10 With respect to the first count, Mr Gatti stated that, after the attack upon him, the accused "stormed out of the shop" before driving away in his vehicle. The victim of the second count, Mr Jamieson stated that he was hit with a "flurry of blows". When he shouted at the accused, the accused simply picked up the mobile phone which Mr Jamieson had dropped during the attack and casually walked down the stairs and up the road. He did not run away from the scene. A witness to the incident, Ms Hunter, confirmed that the accused casually walked away. Michael Hall was nearby and was asked to help Mr Jamieson. He saw the accused walking along the footpath and approached him and asked if he had bashed Mr Jamieson. He said, "Not me mate". The significance of this evidence is that the accused had the presence of mind to deny involvement in the offence.

11 The commission of the offence set out in the third count is described by the victim, Mr Cerney, in the following terms:

"I heard someone walking towards me from behind. It did not feel like a normal walker as they were getting quite close to me. I sped up and he backed off then approached again. At this time I was crossing Ednah Street, Como. He backed off and sped up again. This time I turned to the right as he approached and I was struck to the right side of my face ... I said, 'What are you doing?' He said, 'What does it look like?' We both stood there for a couple of seconds until I started to walk backwards away from him. He did not come any closer and he eventually turned and walked north along Mary Street."

12 The evidence of the victim of the fourth count on the indictment, Mr Hall, is that he was re-entering the McDonald's store to retrieve his keys from the table when he saw the accused standing between him and the table and looking towards him. The accused said nothing before stepping towards Mr Hall and attacking him. At one point Mr Hall pushed out at the accused in an attempt to get away from him but the accused grabbed him around the neck and pulled him towards him. Mr Hall's friend, Ms Posselt, was in the car park waiting when the actual attack occurred but she states that she saw the accused walking away. When the accused was yelled at by the person who had come to Mr Hall's aid, Mr Grimley, he turned around and looked at him but then turned back and continued walking across the road quite casually. Mr Grimley witnessed the attack. He describes the accused's demeanour in the following terms:

"The male appeared to be very calm and in complete control. He calmly looked inside the restaurant at everyone and calmly walked away. He looked back a couple of times and walked across the road ... "

Mr Grimley also noted that there just was not enough time for an argument to break out before the attack. Monique Croucher, who was working at McDonald's on the day of the attack, stated that about two months before the attack, the accused, who she knew, starting coming to the store again. She said that she remembered thinking at the time that he looked different. He seemed to be a lot less concerned about the way he looked and his hair was all matted.

13 There is also evidence from a Ms Tate who found the accused, who was known to her as a friend of her son, sitting on the ground with his legs crossed behind her side gate not long after the offence. When asked, he said that he was there to see Ms Tate's son. They had a further conversation and Ms Tate offered him a drink. She noted that he seemed to take a long time to ask or answer a question. On the following day Ms Tate was advised by one of her friends who had called in to see her on the day of the attack on Mr Hall at a time which would have been not long after, that she saw the accused sitting on the ground in the flower bed under Ms Tate's daughter's bedroom window. She asked him if Ms Tate was home and he said "No". He proffered no explanation for why he was sitting in a garden bed outside the house when no-one was home.

14 The victim of the fifth count on the indictment, Mr Alamdari, was sitting in the front garden of his home and weeding when he saw the accused walking along the street towards him. The accused stopped in front of him, less than a metre away, and asked for directions to Garden City. Having been given those directions, the accused walked off. When Mr Alamdari looked up two minutes later the accused was standing in front of him. The accused said something which Mr Alamdari was unable to understand. He was then grabbed and attacked after which the accused released him and walked off slowly. Mr Alamdari's uncle, Mr Kuchakpour, was with him at the time of the attack. He confirms that the accused requested directions. However, he states that after the attack, the accused "ran off". Mr Kuchakpour pursued the accused by car. When he located the accused in a nearby street, he asked him why he had attacked Mr Alamdari. The accused did not reply, he "just put his finger to his head in a shooting motion" and walked off.

15 When confronted by the police on the afternoon of 16 October 2004 in the front garden of his home, the accused was seen to throw something into the garden area nearby. When that area was searched the police located in a compost bin in the garden bed the knife used in some of the attacks. Based on that evidence it is apparent that the accused was attempting to conceal the knife and on that basis it would seem that the accused was capable of determining that it was not in his interests to be found with the knife and that he should dispose of it. Once arrested, the accused was given the opportunity to participate in a videotaped record of interview but declined. I raise this issue not to draw any adverse conclusion because he maintained his right to silence but because it indicates an ability to make decisions in his own interests as he did with respect to the knife. Of course, the ability to do so may not be in conflict with the existence of a mental impairment or the lack of any of the capacities referred to in s 27 of the Code.

16 It can be seen that each of the offences was committed without any act on the part of the victims to provoke the attack upon them and, with two exceptions, without anything being said by the accused, and on each occasion without anything being said which would explain his actions. It is also apparent that the accused was calm at all times and there was no element of anger or frenzy associated with the attacks.

17 The accused is charged with one count of unlawful wounding, one count of aggravated robbery, one count of assault occasioning bodily harm and two counts of attempted murder. To be convicted of any one of these offences it must be proven by the State, beyond a reasonable doubt, that the offences were committed and the accused committed them.

18 To establish the offence of unlawful wounding it is necessary to prove that an act of the accused caused a break in the full thickness of the victim's skin and that the act was not authorised, justified or excused by law.

19 The definition of the offence of robbery is as follows:

"A person who steals a thing and, immediately before or at the time of or immediately after doing so, uses or threatens to use violence to any person or property in order -

(a) to obtain the thing stolen; or

(b) to prevent or overcome resistance to its being stolen,

(c) if immediately before or at or immediately after the commission of the offence the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed, to imprisonment for life;

(d) if the offence is committed in circumstances of aggravation, to imprisonment for 20 years."

20 Under s 371 of the Code a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing. It is apparent from this section that there must be a taking of property, the property must be capable of being stolen, and the taking must be fraudulent. Section 370 provides that every inanimate thing which is the property of any person and which is movable is capable of being stolen. Clearly a mobile phone meets this description. Taking property will be fraudulent if it is done with an intention to permanently deprive the owner of the property.

21 The term "circumstances of aggravation" is defined in s 391 of the Code to include circumstances in which immediately before or at or immediately after the commission of the offence the offender does bodily harm to any person.

22 The term "bodily harm" is defined in s 1 of the Code to mean any bodily injury which interferes with health or comfort. The injury resulting from the attack on Mr Jamieson in count 2 resulted in bruising around the forehead and left cheek which, in my view, would clearly interfere with his health and comfort.

23 That definition of bodily harm applies equally to the offence of assault occasioning bodily harm in count 3 on the indictment. Section 317 of the Code states:

"Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime ... "

An assault is relevantly defined in s 1 of the Code as follows:

"A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent ... is said to assault that person, and the act is called an assault."

An act will be unlawful unless it is authorised, justified or excused by law. I consider that the act in count 3 of kicking Mr Cerney in the head constitutes an assault and the consequent tenderness and redness to his left mandible interfered with his health and comfort.

24 The offence of attempted murder has three elements:

(2) the intention of the accused at the time of the attempt must have been to kill.

An attempt to commit an offence is defined in s 4 of the Code in the following way:

"When a person, intending to commit an offence, begins to put his intention into execution by doing an act that is more than merely preparatory to the commission of the offence but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

It is immaterial, except so far as regards punishment, whether the offender does all this is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention."

25 The offence of attempted murder is contained in s 283 of the Code which simply states that any person who attempts unlawfully to kill another is guilty of a crime. In the present case, I am satisfied beyond reasonable doubt that what the accused did to both Mr Hall and Mr Alamdari constituted in each case an attempt in the sense that intending to kill, the accused began to put his intention into execution by doing acts that were more than merely preparatory to the commission of the offences. Fortunately, the accused did not fulfil his intention to such an intent as to commit the offences but I am satisfied to the requisite standard that he attempted to commit them.

26 In this case, it is conceded on behalf of the accused that he was the person who committed all five offences. Having considered the prosecution evidence, I am in any event satisfied beyond a reasonable doubt that it was indeed the accused that did the acts the subject of the charges.

27 The approach to be taken by a jury when an accused raises the defence of unsoundness of mind to an offence which has a specific intent as an element has been authoritatively dealt with by the Court of Criminal Appeal of this State in Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254. Kennedy J summarised the appropriate approach, the same approach which was taken by each of the five member Court (although with respect to the offence of wilful murder) (at 260):

"It clearly follows from s 27 of the Criminal Code (WA) that if an accused is found by the jury, on the balance of probabilities, to be of unsound mind, he or she is not criminally responsible for the killing. No question of intent, or lack of intent, then arises. It is, however, still necessary to apply s 653(1) of the Code, which requires the jury, if they have found the accused person not guilty on account of unsoundness of mind at the time of the act or omission, to return a special verdict as to 'the offence of which the person was acquitted'. If there is a finding of unsoundness of mind, applying Hawkins v the Queen [(1994) [1994] HCA 28; 179 CLR 500], the offence of which the accused must be found not guilty must be the offence with which he or she was charged. Thus, the jury could not acquit the accused of wilful murder and murder but find him or her not guilty of manslaughter on the ground of unsoundness of mind."

28 So in the case of the attempted murder charges, where the accused is found to be of unsound mind, there is no scope for finding the accused not guilty, simpliciter, of the offence because the prosecution has failed to establish the necessary intent. The same proposition applies to the offences requiring a specific intent. For the same reason, if an alternative verdict to the offence is available, either expressly or by operation of statute, if the accused is found to be of unsound mind a verdict of the alternative offence cannot be returned if it is considered that the evidence does not establish the specific intent necessary to convict of the principle charge.

29 However, in the event that the decision I have made on the issue of insanity which is addressed below does not ultimately stand, I propose to address the issue of intention and make a finding of whether the prosecution has proved each offence beyond a reasonable doubt.

30 It was conceded on behalf of the accused that the evidence adduced by the State was sufficient to allow me to infer any necessary intent. That is, with respect to the attempted murder charges, the accused had the intention to kill and that, with respect to the charge of aggravated robbery in count 2, there was an intention to permanently deprive the owner of the property. Having considered the prosecution evidence, I am satisfied beyond a reasonable doubt that the State has proved that, at the time of doing the acts constituting the offences set out in counts 4 and 5 on the indictment, the accused intended to kill the victims. The finding of an intention to kill is a finding by way of inference from the acts done by the accused on each occasion, in particular the nature and extent of the injuries and also the nature of the weapon used. I am satisfied beyond reasonable doubt that this is the only inference that can be drawn. In my view, it could not be concluded that the accused was simply intending some harm or even serious harm, without more. Similarly, with respect to the fraudulent intent in count 2, I consider that intention has been established inferentially beyond a reasonable doubt.

31 Having considered all of the evidence before me I am satisfied of each element of the offences alleged in the indictment and, if not for the decision I have reached on the issue of insanity, I would return a verdict of guilty on each count.

32 As I have indicated, the accused has pleaded the defence of insanity in relation to each of the charges. The onus is on the accused to establish on the balance of probabilities that, notwithstanding the statutory presumption of insanity in s 26 of the Code, the requirements for a finding of unsoundness of mind set out in s 27 of the Code have been met: Armanasco v The Queen (1951) 52 WALR 78; R v Porter [1933] HCA 1; (1933) 55 CLR 182. Section 27 is in the following terms:

"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."

It can be seen that there are two aspects to establishing a defence of insanity. The first is that the accused at the relevant time suffered a mental impairment. The second aspect is that at the relevant time the accused was deprived of one or more of the three capacities referred to in s 27 of the Code: (i) the capacity to understand what he was doing; (ii) the capacity to control his actions; or (iii) the capacity to know that he ought not do the act or make the omission.

33 The term "mental impairment" is defined in s 1 of the Code to mean intellectual disability, mental illness, brain damage or senility. The term "mental illness" is in turn defined as follows:

"... 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 form the reaction of a healthy mind to extraordinary stimuli."

34 The Code also provides that the provisions of s 27 do not apply to the case of a person who has caused himself to become intoxicated or stupefied to the point that his mind is disordered, whether in order to afford excuse for the commission of an offence or not: s 28 par 2. Although there is before me some evidence that the accused abused drugs and that his diagnosed mental condition was contributed to by substance abuse, both the prosecution and the defence agreed that there was an inadequate evidentiary basis to be satisfied that, at the relevant times, the accused's mind was disordered by stupefaction caused by the voluntary ingestion of drugs. I agree with that assessment of the evidence.

35 A statement of the accused's mother was tendered into evidence by consent. In the statement Mrs Iley indicated that she began to experience problems with her son when he was in Year 11. He became aggressive and began to wag school. He began to have personality clashes with his teacher when prior to that he was very respectful to both his parents and his teachers. According to Mrs Iley, she became increasingly worried although initially she thought her son's behaviour was due to adolescence and her protectiveness.

36 After leaving school the accused worked with his father on the oil rigs for about two or three years. When he returned she noticed that he was withdrawn and was becoming extremely difficult to live with. He was disrespectful and hostile to members of his family. He would become agitated and walk around the house and outdoors pacing and talking to himself. When confronted, he would switch back and become calm and polite. He would then return to talking to himself.

37 By 2001 the accused began to exhibit a complete change of personality. After the September 11 incidents and a burglary at his home, he kept referring to the incident and became extremely angry and was completely confused in his thinking. He would not eat, was uncommunicative and would talk with a stutter. After a time, the accused resumed walking and talking to himself and began to swear and use obscene language. He was aggressive and agitated.

38 The accused refused his mother's request to see a psychiatrist. He talked about the Mafia and spiritual things and would swear at his mother and at the television. Over time, the accused's condition deteriorated even further to the point that some family members were frightened of him. He was withdrawn, talked of the Mafia, locked himself in his room with his dog and carried a knife everywhere with him and, on occasions, a baseball bat. He began to mistreat the dog which he had previously loved. His explanation for doing so was that "the devil is sitting inside the dog".

39 In October 2004 the accused's behaviour became increasingly bizarre. He tried to chase "the devils in the fridge" and his mother had to get rid of the fridge. He said that he was a vampire and would only eat raw meat. He began to say that his father was in the Mafia gang of the Casino and that he would kill his uncle. He would punch holes in the doors with his fist. The accused said that he was God and denied that he was Mrs Iley son, saying that he had only used her body to be born. He said that he was "Jesus reborn". He told others that he was the Lord. When she talked on the phone to anybody the accused would stand between her and the phone and accuse her of sending a message about him.

40 The accused would lock himself in his room with the dog, the knives and close all the windows and curtains. He accused people of reading his mind. He would talk about bikies saying that they were the Mafia who were ordering him to kill people. The accused could be heard in the shower arguing loudly to himself and saying "don't tell me to do this, this is bad".

41 Mrs Iley was frightened by the level of her son's deterioration and made repeated attempts to obtain help for him, to no avail.

42 Following his arrest, on 18 October 2004 the accused was referred to Graylands Hospital for psychiatric evaluation pursuant to s 5 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). In the report of Dr Mircea Schineanu to the Court of Petty Sessions of 22 October 2004 it is said that the defendant suffers from a mental disorder, namely psychotic disorder NOS. On psychiatric examination he was considered to be clearly psychotic and unfit to plead.

43 In her next report of 3 December 2004, Dr Schineanu stated that, on admission, the accused was unable to give a coherent account of the circumstances surrounding the alleged offences. He appeared detached and unaware of questions, apparently preoccupied with his inner world. The past psychiatric history outlined in the report recounts events substantially in accordance with the information contained in Mrs Iley's statement to which I have referred. Dr Schineanu notes that a history of gradual academic, social and occupational decline over a period of up to a few years prior to the onset of overt psychosis is a common mode of presentation in schizophrenia. The report relates that the accused was admitted to Fremantle Hospital in January 2004, assessed and subsequently treated as an outpatient. He was prescribed an antipsychotic medication which caused a gradual improvement in his mental state. He took the medication until July 2004 when he was reviewed by a psychiatrist, Dr Arya, at which time he was in full-time employment and exhibited no abnormal feature on mental state examination. Unfortunately, he did not attend any further appointments and was not followed up. It appeared to Dr Schineanu that the accused had not been taking any medication since about mid August 2004.

44 During the assessment, the accused told Dr Schineanu that he had smoked marijuana and used intravenous amphetamines over the weeks prior to admission but was very vague about quantities. He told her that he drank alcohol in moderation but had not used ecstasy or LSD in recent times, although he had used these drugs in the past.

45 During the mental state examination the accused was cooperative but exhibited poverty of speech and reduced emotional expression. His affect was vague and perplexed, with reduced affective range and reactivity. There was marked poverty of thought content and evidence of disordered thought process, with loss of goal and loosening of associations. He described to Dr Schineanu delusions of reference from the television, believing people in television programmes were talking to him directly. When questioned about his documented delusions of being Jesus Christ and God, the accused was guarded in his reply, but said he "could be". He described auditory hallucinations of a voice in his head, which repeated things he said, and asked questions. The accused was oriented in time and place, but concentration was impaired, and his memory for recent events was patchy. His judgment and insight were both markedly impaired. The accused remained somewhat vague and perplexed during his admission but there had been some improvement in his mental state by the time the report was written.

46 Dr Schineanu made a diagnosis based on the recognised DMS IV diagnostic system of the mental illness, paranoid schizophrenia, together with polysubstance abuse. She considered that he had suffered a psychotic relapse following his discharge from Fremantle Hospital and his failure to attend follow up appointments and to take his medication. The accused was considered to have disordered thought processes, delusions of reference and probably grandiose delusions of being Jesus Christ and God and auditory hallucinations. Dr Schineanu also considered that, at that time, the accused was unfit to plead. The accused's fitness to plead being the purpose of the report, Dr Schineanu did not provide an opinion as to whether, at the relevant time, the accused lacked any of the three capacities referred to in s 27 of the Code.

47 According to a further report of Dr Schineanu dated 5 January 2005 the defendant had continued with antipsychotic medication and become more responsive. Dr Schineanu observed that the accused's thought process was much more organised and there was now no evidence of formal thought disorder though he still had some poverty of content. The accused was able to describe thoughts that he experienced as not his own thoughts and stated that he hears voices that repeat things from the television. The conclusions stated in the report are that the defendant suffers from a psychotic disorder, namely paranoid schizophrenia requiring indefinite psychiatric treatment. Reference is also made to the accused's history of polysubstance abuse which is said to have negatively impacted on his mental state. However, at that point in time the accused was considered fit to plead.

48 The final report of Dr Schineanu is dated 22 August 2005. The diagnosis of paranoid schizophrenia is maintained and the observation is also made that the accused suffers from a substance abuse problem. The accused's psychotic symptoms at the time of his admission are described as "auditory hallucinations", delusions of reference and disordered thought process. In this report, Dr Schineanu expresses the opinion that, at the time of the offences, the accused was psychotic. The opinion is based on the accused's psychotic symptoms on admission and the length of treatment required to diminish the intensity of those symptoms. Significantly, Dr Schineanu considers that the main reason or cause for his psychotic disorder was schizophrenia rather than substance although she concedes that the accused's substance abuse would have negatively impacted upon his mental illness.

49 Dr Schineanu considered that, at the time of the offences, the accused was capable of knowing what he was doing. However, she believed that he was "incapacitated of understanding that what he was doing was wrong". Dr Schineanu expresses the opinion that, although the accused had an awareness of the wrongness of his act, because of his mental illness he was "unable to reason about this with a moderate degree of sense".

50 As to whether the accused had the capacity to control his actions, Dr Schineanu made the following statement:

"I believe that a person affected by a severe mental illness, whilst under the compulsions of his overwhelming psychotic symptoms/experiences, that person is not able to make a wilful decision and therefore not able to act voluntarily in the relevant sense."

51 Dr Schineanu concluded by observing that, in her opinion, the accused's capacity to control his actions at the time of the offences had, at least, been diminished because of his psychotic state.

52 The report of Dr Arya dated 13 April 2004 tendered together with the report of Dr Brett relates to the accused's admission to hospital on 25 January 2004. According to the report, the events leading to the accused's admission were: "odd behaviours, whispering, hiding things, bolts doors, threatens his mother. Denies recent substance abuse. Court case pending. Recent eviction." The reference to a court case is to an offence of assault unrelated to the series of offences contained in this indictment.

53 Dr Arya examined the accused on 26 January 2004 and decided that there was no need for him to be treated under the Mental Health Act 1996 (WA). He was discharged into his mother's care. According to Dr Arya, she was unable during that examination to elicit any psychotic symptoms. It was only after she heard a tape recording of him at home made by his mother that it became clear to her that the accused was indeed experiencing psychotic symptoms.

54 The information provided to Dr Arya concerning the accused's behaviour was that his behaviour was unmanageable, he had smashed a neighbour's window, confronted and assaulted him. The accused believed that he was Jesus and God, believed he was pure. He was extremely religious and refused to wear a seat belt because "Gods cannot be restrained". On one occasion he was found walking in the middle of the road. Dr Arya was also aware that the clinician who conducted a psychiatric home visit made on 17 January 2004 considered that the accused might be suffering auditory hallucinations. He also recorded that the accused expressed concern that people could read his mind and that someone was listening in on him and observing his movements. The material provided to Dr Arya also indicated that, on a home visit on 25 January 2004, the accused was hostile, threatening and intimidating. He was assessed to be "paranoid about his family" but unwilling to answer questions. On that occasion, the accused's mother told the clinician that the accused was grandiose and had been carrying a knife and threatening to kill his uncle.

55 Notwithstanding this information and information from Mrs Iley of her son's bizarre behaviour, the accused, was discharged from hospital. The decision to do so was based on Dr Arya's assessment of the accused on 26 January 2004. During the assessment, the accused was compliant, denied any auditory hallucinations or ideas of reference and explained away the allegations against him. On mental state examination he the accused was cooperative and responded appropriately to questions. He was fully aware of the fact that he was being assessed. His speech was relevant and coherent and his affect was euthymic with a good range of reactivity and affect. There was no evidence of any delusions or hallucinations. The accused was not distracted and did not display any disorder of thought form, flow, content or possessions. Dr Arya was not convinced that the accused was responding to any imaginary stimuli or was acting on a delusion. The accused's attention and concentration could be aroused and was sustained, and he was oriented to time, place and person. On that basis, Dr Arya concluded that the accused did not have any psychotic symptoms. However, Dr Arya did suggest that the accused would benefit from continuing assessment to which he agreed. A follow up assessment was made on 3 February 2004. The accused admitted to Dr Arya that he talked to himself but he explained that away and assured her that he did not hear any imaginary voices or talk to imaginary people. He was not distractible, was able to engage in conversation appropriately and responded to questions. Dr Arya considered that there was no indication from the interview that the accused was experiencing delusions or hallucinations. At this assessment the accused advised that he was not abusing any other illicit drugs except cannabis although he admitted that in the past he had used intravenous drugs.

56 On 10 February 2004, Dr Arya met with the accused's parents at their request. She was given some tape recordings of the accused at home and it became clear to her from the recordings that the accused was indeed responding to some imaginary stimuli. The accused was then seen by Dr Arya on the following day at which time she confronted him with the fact that she was satisfied that he was experiencing auditory hallucinations. The accused agreed that he was although he maintained that he had adequate control over his voices. The accused denied that he was using drugs other than cannabis and said that he had smoked three cones of cannabis in the preceding week. Dr Arya did not form an opinion as to whether or not this information was accurate. Dr Arya arranged for a brain scan to be carried out on the accused and prepared a management plan to which the accused agreed which required him, inter alia, to take an antipsychotic medication.

57 The brain scan performed on 23 February 2004 identified predominant frontal hypoperfusion consistent with schizophrenia. At a follow up assessment on 2 March 2004 the accused indicated that he was feeling better although he was experiencing auditory hallucinations including what he considered to be telepathic communications to him or through his dog. He was also receiving messages from the television and hearing conversations between people he did not know. It was at that point that Dr Arya expressed the opinion that "the diagnosis clearly should be paranoid schizophrenia". She also noted that the accused "tries to rationalise as many of his imaginary experiences as possible". At the subsequent assessments on 23 March 2004 and 7 April 2004 Dr Arya noted improvement in the accused's condition. Shortly after, the accused left for overseas as he had previously advised Dr Arya he intended to do. He did not present to Dr Arya for further assessment.

58 There are a number of possible interpretations of the accused's behaviour when being assessed by Dr Arya. He may not have been then suffering any psychotic symptoms and had no insight into, or recall of, prior psychotic episodes or behaviours. Alternatively, he may have been symptom free but was able to deliberately mislead a qualified psychiatrist as to his condition. The fact that, when confronted with Dr Arya's knowledge that he did in fact suffer hallucinations, the accused admitted that he suffered from hallucinations but considered that he could control them, is more consistent with the latter explanation. That causes concerns about the validity of any psychiatric diagnosis. However, I believe it would be far easier for a patient to hide from a psychiatrist, for whatever reason, his psychotic behaviours when he was not experiencing symptoms than it would be to satisfy a psychiatrist that he was suffering from a symptomatic psychotic illness when he was not. I consider it would be even more difficult to present as having psychotic symptoms for the extended period of time for which the accused was treated after the commission of these offences.

59 The final psychiatric report tendered into evidence is the undated report of Dr Adam Brett. Dr Brett assessed the accused on two occasions in Hakea Prison. On the accused's account of the offences given to Dr Brett he was, on almost every occasion, suffering from auditory hallucinations. The hallucinations involved threats to him or derogatory comments about him, or both. The accused had little recollection of the circumstances of count 3.

60 The psychiatric history outlined by Dr Brett is consistent with the material to which I have already referred. However, it does contain some additional material. It appears that the accused stopped taking his antipsychotic medication around the end of July 2004. The accused told Dr Brett that his doctor agreed to him doing so but that is clearly not the case. The accused said that the medication had been interfering with his ability to do the work required under his community work order. This was confirmed by Mrs Iley who made an unsuccessful attempt to obtain permission for the work in the morning to be stopped. When Dr Arya left the Mental Health Service in August 2004 the accused did not wish to see a new doctor and no further appointments were made for him in any event. According to Dr Brett, Mrs Iley had ongoing concerns about her son in the period preceding the offences.

61 The drug history provided to Dr Brett was more detailed than anything contained in other psychiatric reports. The accused told him that he had used marijuana since he was 13. He said that he smoked all day, every day during his schooling and regularly used marijuana up to the time of his arrest. The accused described some paranoia on using marijuana. The accused has also used LSD but ceased using that drug a year after completing Year 12. He acknowledged using intravenous amphetamines up until his arrest and stated that it started causing paranoia. He used heroin briefly but maintained that he had no history of alcohol abuse or dependency. According to Dr Brett, the accused gave a vague description of his drug use preceding the offences. Dr Brett expresses no opinion on whether the accused's inability to recall in any detail his drug use preceding the offences is consistent with the level of his psychosis at the time or simply a desire to protect himself from the consequences of drug induced psychosis caused by the voluntary ingestion of drugs. However, there is no evidence that the accused was aware of such consequences.

62 Following Dr Brett's mental state examination of the accused he concluded that the accused suffers from paranoid schizophrenia. He also considered that there could be a differential diagnosis of drug induced psychosis. However, as the accused continued to suffer from psychotic experiences within the justice system whilst he was drug free, in Dr Brett's opinion is that the diagnosis is one of schizophrenia with co-morbid substance abuse.

63 Despite the statements as to chronic drug use, as I have noted, I consider that the evidence of his drug use prior to the offences is insufficient to form the view, in the face of the psychiatric evidence to the contrary, that the accused's psychotic behaviour at the relevant time was either solely or predominantly caused by becoming stupefied by the voluntary ingestion of drugs.

64 In Dr Brett's opinion, the accused's thought disorder described by the clinician on and during the accused's admission to Graylands Hospital is consistent with a person who is acutely psychotic. The fact that the accused was not thought disordered when seen by Dr Brett is consistent with treatment. Further, in Dr Brett's experience, offences of the type alleged against the accused are consistent with those performed by psychotic people. The accused's brain scan results are also consistent with Dr Brett's diagnosis.

65 Dr Brett also considered that the accused could avail himself of an insanity defence under s 27 of the Code. He believed that the accused was not deprived of the capacity to understand what he was doing. I concur with that view. Dr Brett believed that the accused had a reduced capacity to control his actions because of his mental impairment. According to Dr Brett, the accused's impulse control was impaired by his psychotic illness. Whilst I accept that the accused's impulse control was impaired, the terms of s 27 are clear: the accused must be deprived of the capacity to control his actions.

66 However, Dr Brett believed that, because of his mental impairment, the accused was deprived of the capacity to know that he ought not do the act. In Dr Brett's opinion, the accused's psychotic state was such that he did not know that what he was doing was wrong.

67 Dr Brett elaborated on his opinion as to the accused's lack of capacity in the following terms:

"There is no clear motivation for the offences other than that of a psychosis. They were unplanned offences, and all of the offences took place in public with many witnesses about. In his mental state, he was finding it very difficult to trust anyone. It is for this reason that he avoided people who had been coming after him following the alleged offence. It was also for this reason that I believe that he did not willingly give himself up to the Police when he was arrested."

68 Dr Brett went on to observe that, when somebody is acutely psychotic as in the accused's case, derogatory or threatening auditory hallucinations are very real and it is not possible for the psychotic person to separate between what is happening in reality and what is happening in his psychosis.

69 I accept the opinions of Dr Brett and Dr Schineanu and am satisfied on the balance of probabilities that, at the time of the commission of each of the offences, the accused was suffering from paranoid schizophrenia and was in such a state of mental impairment as to deprive him of the capacity to know what he was doing was wrong. In my view, the diagnosis of paranoid schizophrenia, and the resultant lack of the capacity to know that he ought not do the act constituting the offences, is consistent with the evidence of the accused's calm demeanour during and after the offences were committed as well as the complete lack of any provocation for, or equivocation in, his actions. In reaching the conclusion that the accused lacked the capacity to know that he ought not do the act, I am mindful of the body of evidence such as his denial of his actions, his attempt to evade apprehension and also to hide the weapon, that might indicate that the accused was aware that what he had done was wrong. However, having considered and evaluated that evidence, I have reached the conclusion that it does not overcome the force of the expert opinions of experienced psychiatrists which are honestly drawn and legitimately based on evidence, including the results of mental state examination.

70 On that basis, I find that the accused is not criminally responsible for any of the offences alleged against him and, consequently, the appropriate verdict on each count is one of not guilty on account of unsoundness of mind. I therefore enter judgment of acquittal on each of the offences charged in the indictment on account of unsoundness of mind.

71 Section 149(1) of the Act requires me to deal with the accused under the provisions of the Criminal Law (Mentally Impaired Accused) Act 1996. As each of the offences for which the accused has been found not guilty by reason of unsoundness of mind are offences in Sch 1 of the Criminal Law (Mentally Impaired Accused) Act 1996, s 21 of that Act requires me to make a custody order in respect of the accused and I make that order. The consequence of the order is that the accused is to be kept in custody in accordance with the provisions of Pt 5 of that Act. Section 24 provides that the accused is to be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Mentally Impaired Accused Review Board, until released by an order of the Governor.