//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2020] WASC 246
Supreme Court of WA
2020-07-02
Derrick J
Original judgment source is linked above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[7] Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 [25], [55] ‑ [57], [103].
[9] R v Porter [1933] HCA 1; (1933) 55 CLR 182.
[10] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 49, 60.
[11] The State of Western Australia v Jones [2018] WASC 395 [43].
[12] R v Radford (1985) 142 SASR 266, 274 ‑ 275.
[13] The State of Western Australia v Jones [43].
[14] In R v Falconer (54, 60, 76, 82) King CJ's comments as summarised by Jenkins J were generally approved of. When Falconer was decided s 27 of the Code was differently worded. The subsequent amendments to the Code are consistent with King CJ's statement of principles, although the definition of 'mental impairment' is broader than that of 'disease of the mind' which was considered by King CJ.
[15] R v Falconer (39 ‑ 40); The State of Western Australia v Brown [No 3] [2013] WASC 349 [44]; The State of Western Australia v Siddique [No 2] [2016] WASC 358 [51]; The State of Western Australia v Marotta [2018] WASC 329 [39] ‑ [45].
[16] The State of Western Australia v Marotta [2018] WASC 329 [45].
[19] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358.
[22] Evans v The State of Western Australia [2010] WASCA 34.
[23] Evans v The State of Western Australia [30] ‑ [31].
[24] Evans v The State of Western Australia [59] ‑ [61].
[25] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138; Evans v The State of Western Australia [34], [63].
[26] The State of Western Australia v Herbert [2017] WASC 101 [58] ‑ [59].
[27] Although Jenkins J's comments were made in relation to the meaning of 'intoxication' for the purposes of s 28(1) and s 28(2) they are, in my view, equally applicable to the meaning of 'stupefaction' for the purposes of the sections. There is, in my view, no material difference between the meanings of these two terms as used in the sections. My references to 'intoxication' throughout the remainder of these reasons should be read as encompassing 'stupefaction'.
[28] The State of Western Australia v Lang [No 2] [2016] WASC 206 [42]; The State of Western Australia v Herbert [59]; The State of Western Australia v Daly [2019] WASC 386 [39].
[29] The State of Western Australia v Lang [No 2] [42].
[30] The State of Western Australia v Herbert [57]; The State of Western Australia v Daly [37], [81].
[31] The State of Western Australia v Herbert [2017] WASC 101.
[32] The State of Western Australia v Herbert [60] ‑ [67].
[35] R v Corbett [1903] St R Qd 246, 249; R v Smith [1949] St R Qd 126, 130; R v Kusu [1981] Qd R 136, 141-142; R v Bromage [1991] 1 Qd R 1, 8.
[36] Mustac v The Medical Board of Western Australia [2007] WASCA 128 [38].
[38] R v Clough (No 2) [2010] QCA 120; [2011] 2 Qd R 222; The State of Western Australia v Herbert [60] ‑ [61].
[39] R v Clough (No 2) [1]. Section 304A of the Qld Code is concerned with diminished responsibility and is not relevant to the present discussion.
[50] The State of Western Australia v Daly [38], [81] ‑ [94].
[54] I take Jenkins J's reference in [66] to 'the extension of the defence of insanity provided for in s 28(1)' to be a reference to the construction of s 28(1) which I favour but which her Honour rejected.
[55] Hone v The State of Western Australia [124] ‑ [125]. See also the comments made by Steytler P at [6], [13].
[56] Report of Dr Pascu dated 26 February 2019 [38] ‑ [43] (Exhibit 42); Report of Dr Brett dated 30 November 2019, [62] ‑ [66] (Exhibit 45).
[57] Exhibit 42 [19] ‑ [22]; Exhibit 45 [32] ‑ [54].
[59] I will from this point onwards use the first names of the civilian witnesses for ease of reference and distinction. No disrespect is intended by my use of their first names.
[60] The witness statements were part of the collection of witness statements that I allowed into evidence under s 93 of the CPA. The State also read into evidence and tendered a statement made by Mr Wayne Dohnt dated 3 April 2020 (Exhibit 14). However, Mr Dohnt's evidence was limited to him saying that at one point while he was at Mr Lanciano's house between 3.00 pm and 5.00 pm on the afternoon of 4 November 2018 he heard raised voices coming from inside the house, that one of the voices sounded like the voice of the deceased and that he did not recognise the second voice.
[63] ts 101, 15 June 2020. During the trial the two recordings made by Ms Knock of portions of the disagreement were played and tendered: Exhibit 7 and Exhibit 8. The recordings reflected the evidence given by Ms Knock as to what was said by the accused and the deceased during the disagreement.
[69] In par 24 of his statement Vincenzo asserts, 'After this, we were sitting outside'. He then states in par 25 of his statement that, 'Sarah came up to me and said she liked me and loved me'. Vincenzo's reference to 'after this' in par 24 is, when read in light of the earlier paragraphs of his statement, an obvious reference to after having had lunch. However, given the terms of par 25 it is not clear if his reference to 'we' in par 24 is a reference to himself, his relatives and the accused or rather a reference to only himself and the accused.
[75] Exhibit 17 [78] ‑ [94]; Exhibit 22 [11] ‑ [30]; Exhibit 23 [13] ‑ [38].
[78] Exhibit 17 [107] ‑ [110]; Exhibit 20 [118] ‑ [127]; Exhibit 26 [11] ‑ [12].
[79] Exhibit 26 [15] ‑ [18]; Exhibit 27.
[81] Exhibit 26 [20] ‑ [25]; Exhibit 27.
[82] Exhibit 26 [20] ‑ [25]; Exhibit 27.
[85] Exhibit 29 [27] ‑ [28]; Exhibit 31.
[88] Exhibit 32 [12] ‑ [13], [15] ‑ [17]; Exhibit 33 [10] ‑ [19], [36].
[89] Exhibit 32 [19] ‑ [20]; Exhibit 33 [10] ‑ [19], [36] ‑ [48].
[90] Exhibit 42 [23] ‑ [27]; Report of Dr Pascu dated 19 May 2020 [32] ‑ [33] (Exhibit 43); Report of Dr Brett dated 30 November 2019 (Exhibit 45) [14] ‑ [18].
[100] ts 222, 16 June 2020. The transcript records that the accused's evidence was that she tipped the wine 'under the lemon tree a bit' and that 'I just tipped it around me' (emphasis added). I have listened to the recording of this portion of the accused's evidence. Having done so I am satisfied that the accused's evidence was that she had tipped the wine 'around there' not that she had tipped the wine 'around me'.
[108] The accused's reference to 'Mr L' was a reference to Vincenzo. In speaking to Dr Pascu the accused referred to Vincenzo as 'Mr L'.
[114] Again, in speaking to Dr Pascu the accused referred to Vincenzo as 'Mr L'.
[118] During the interview the accused referred to Vincenzo as 'Pop'.
[123] Exhibit 47, ts 348 ‑ 378, 18 June 2020.
[125] No issue was taken by the State with the accuracy of this factual assumption.
[126] See the evidence referred to at [179] ‑ [183] above.
[127] Exhibit 48 read in conjunction with oral evidence.
[153] Given the accused's height and weight at the relevant time and the available evidence of her history of alcohol use and abuse, there is not a sufficient basis for adopting anything other than the average rate of metabolism in her case. Neither the State nor the defence argued to the contrary.
The authority most directly on point in this context is Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358. In that case, having regard to the state of the evidence, it seems unlikely that there would have been any practical difference in result whether the jury had been directed in terms of a capacity to understand that an act was wrong according to ordinary standards, or to understand that it was contrary to law. It appears that that was the reason why the court would have 'hesitated' to order a new trial simply because the jury had been directed that the test of insanity was whether the accused knew that firing a shot at another person was against the law (at 375). However, the court made it clear that such a direction was erroneous (at 367 ‑ 368).
It is not easy to summarise the detailed discussion of authority in Stapleton in a way which is capable of being fashioned into an appropriate direction in every case of insanity. However, the principles extracted from that discussion appear to focus upon two issues. First, the ability to know that one 'ought not' to do an act or make an omission is a capacity to know that one 'ought not' to do it according to ordinary standards of right and wrong, rather than knowledge that the act is unlawful. 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' (at 375). 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.
In my view, the question in this case made it imperative that her Honour explain to the jury the two principles which I have described above. For completeness, I would add that it was not, in my view, necessary for her Honour to adopt the formula contended for by ground 2(b) of the grounds of appeal. 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.
In The State of Western Australia v Brown [No 3] [2013] WASC 349 and The State of Western Australia v Lang [No 2] [2016] WASC 206, I considered the meaning of the Criminal Code s 28. I see no reason to change the views which I expressed in those cases. In Brown, I said:
'Using the same definition of intoxication, s 28(2) says that s 27 does not apply to a person who has intentionally caused his mind to be intoxicated; that is, subject to the overpowering action or effect of a drug or liquor.
I am of the opinion that s 28(2) refers to a person who has "become intoxicated" at the time of the commission of the relevant acts.
The common law and cases on s 28 and similar statutory provisions do not suggest that an accused who has intentionally caused themselves at any point in the past to become intoxicated cannot rely on the defence of insanity. Neither does the State submit that is the meaning of the section. Rather, the State submits that s 28(2) says that the defence of insanity does not apply to a person who has intentionally caused himself to become intoxicated at any time in the past and that past intentional intoxication has contributed in some way to the deprivation of a relevant capacity.
In my opinion that is not the law. ... That is, intentional intoxication disentitles, even a mentally impaired person, from relying on the defence of insanity. However, it is intentional intoxication at the time of the commission of the offence which the law is concerned about. In this respect I am of the view that s 28(2) reflects the common law as stated by Lord Birkenhead LC in Director of Public Prosecutions v Beard [1920] AC 479:
"But drunkenness is one thing and the diseases to which drunkenness leads are different things, and if a man by drunkenness brings on a state of disease which causes such a degree of madness, even for a time, as would have relieved him from responsibility if it had been caused in any other way, then he would not be criminally responsible."
Thus, if an accused "brings on" mental impairment by past intoxication with drugs or liquor, s 28(2) does not disentitle him from relying on the defence of insanity, unless he is intentionally intoxicated at the time he does the relevant acts ...
On the other hand, I accept that the state of intoxication referred to in s 28(2) may be longer than the time the relevant accused subjectively experienced the effects of the drugs or liquor. In this respect, I agree with the conclusion of the Queensland Court of Appeal in R v Clough [2010] QCA 120 that the ordinary meaning of intoxication is wide enough to encompass more than comparatively short-term elation or stimulation.
It is a question of fact whether the accused was intoxicated and the accused's experience of the effect of the drugs or liquor may be only one of a number of matters relevant to that determination. Nevertheless, the drugs or liquor must still be found to have had an overpowering action or effect on the accused's mind at the time of the commission of the relevant acts, in order for him to be "a person who has intentionally caused himself to become intoxicated" so that s 28 (2) can apply and s 27 does not apply [36] ‑ [42].'
In R v Clough [2010] QCA 120, the Queensland Court of Appeal considered the relationship between unsoundness of mind and intoxication. Muir JA made the following statement which is applicable to the Code s 27. When considering it, the Code term 'mental impairment' should be read for 'mental disease or natural mental infirmity'. His Honour said:
'Juries are not bound to accept and act upon expert evidence. Nevertheless they are not entitled to disregard it capriciously. These two propositions have found expression and support in a line of authorities developed in England with regard to the defences of insanity and diminished responsibility.
In Rivett (1950) 34 Cr App R 87, Lord Goddard CJ, said (at 94):
"The second matter for emphasis is that it is for the jury and not for medical men of whatever eminence to determine the issue. Unless and until Parliament ordains that this question is to be determined by a panel of medical men, it is to a jury, after a proper direction by a judge, that by the law of this country the decision is to be entrusted."
The Court of Criminal Appeal was there dealing with medical evidence relating to a defence of insanity.
Eight years later, when dealing with a defence of diminished responsibility, Lord Goddard showed the other side of the coin, in Matheson [1958] 1 WLR 474; 42 Cr App R 145, saying (at 478; 151):
"While it has often been emphasised, and we would repeat that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors' evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be 'a true verdict in accordance with the evidence'."
In Bailey (1977) 66 Cr App R 31, another diminished responsibility case, Lord Parker CJ said (at 32):
"The court has said on many occasions that of course juries are not bound by what the medical witnesses say, but at the same time they must act on evidence, and if there is nothing before them, no facts and no circumstances shown before them which throw doubt on the medical evidence, then that is all that they are left with, and the jury, in those circumstances, must accept it."
(1952) 86 CLR 358
(1985) 142 SASR 266
(1933) 55 CLR 182
(2000) 23 WAR 254
(1990) 171 CLR 30
In both Matheson and Bailey, manslaughter verdicts were substituted for jury verdicts of guilty of murder, on the basis that the medical evidence was "all one way", and there was no other material which would justify its rejection. It was otherwise in Walton [1977] UKPC 16; [1978] AC 788; 66 Cr App R 25. The Privy Council was there considering a murder conviction where a diminished responsibility defence had been rejected. In the judgment, which was delivered by Lord Keith of Kinkel, there are observations that "the jury were entitled to regard (the medical evidence) as not entirely convincing", and "their Lordships have come to be of opinion that in all the circumstances the jury were entitled not to accept as conclusive the expression of opinion by Dr Bannister". After a consideration of both Matheson and Bailey, the following statement of principle was made:
"These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the defendant before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence."
The effect of those decisions is accurately summarised in Professor Smith's commentary on Walton in (1977) Crim LR 747 at 748:
"If the medical evidence is all one way and in favour of the accused and there is nothing in the facts and surrounding circumstances which could lead to a contrary conclusion, then a verdict against the medical evidence cannot be sustained. In the present case there were facts and circumstances in addition to the medical evidence and the jury was therefore entitled to reject that evidence." (370 ‑ 371)'