THE STATE OF WESTERN AUSTRALIA -v- MAROTTA [2018] WASC 329 (31 October 2018)

1. The facts of the conviction on 29 August 1980 for grievous bodily harm are that the accused and his friends became involved in a scuffle with another group of young people. The accused produced an unloaded rifle and struck a female from the other group on the knuckles with its barrel. The victim argued with the accused about his actions. The accused struck the victim's right eye with the butt of the rifle. The victim's eye was dislodged from the socket and completely destroyed.
2. As a consequence of the commission of this offence the accused spent six months in youth detention.[35] A psychiatrist assessed him as having a paucity of thought and reactions which were considered to be in keeping with a state of high anxiety and some depression. He was not considered to have a psychiatric illness but rather to be emotionally immature and easily led.
3. On 1 April 1987 Dr J Booth consultant psychiatrist completed a report for the director of the probation and parole service in which he said that he had seen the accused on 30 March 1987 when he was in custody after having been found guilty of being unlawfully premises. Dr Booth formed the opinion that the accused's background 'strongly suggest the prodromal phases of a schizophrenic disorder'.[36] Dr Booth said that the accused was not interested in treatment and neither could he be certain that it would have much effect.
4. The accused was seen by Dr G L Rollo consultant psychiatrist at Fremantle Prison on 6 May 1988. He had been transferred from Wooroloo Prison after behaviour 'which caused some concern and suggested mental instability'. Dr Rollo referred to Dr Booth's opinion and said that two years later the suspicion remained that the accused was in the prodromal phases of a schizophrenic disorder, 'but without convincing evidence'.[37]
5. The facts of the offences for which he was convicted on 20 March 1989 are that on 28 August 1988 the accused was at a nightclub in Fremantle. An altercation developed between himself and victim one. Victim one punched the accused several times to the face. As he walked away the accused stabbed victim one in the left thigh. At this time victim two had her right hand on victim one's left side. As the accused stabbed victim one the knife also penetrated the webbing between the fingers of victim two's hand before the knife went into victim one. During the investigation of the offences, the police seized the knife and brown sheath used by the accused in the attack.
6. On 31 August 1988 the accused participated in a record of interview with the police during which he admitted stabbing victim one.
7. On 3 October 1988 the accused was admitted to Graylands Hospital. On 5 October 1988 he escaped by climbing over a security wall. He was captured the following day, remanded in Fremantle Prison and charged with escaping legal custody.[38]
8. In the Graylands Hospital Discharge Summary dated 20 October 1988 Dr C P J Neinaber a consultant psychiatrist and Dr C de Felice a registrar in psychiatry said that it was considered that the accused was suffering from a schizophrenia form psychosis and after further history from Dr Booth it seemed more likely that this man had schizophrenia. That history appears to have been obtained by Dr Booth from the accused's mother. In relation to the accused's particular hallucinations and thought disorders the doctors reported:

He experiences auditory hallucinations and had done so for at least 9 months, saying that he heard god, Christ, Michael, David all speaking to him telling him to read the paper and other such things, and more recently had started to command him to do more disturbing things such as hanging himself, cutting his foot off, or harming others. He believed that he was plagued by the voices as a punishment for the bad things that he has done, and that he is caught up in a spiritual battle. He had also experienced times when the people on TV would say his thoughts as he though them. He also had ideas of reference from the TV, and on one occasion experienced visual hallucinations when he saw the archangel Michael on the clouds in a chariot with bulldogs.[39]

1. The doctors stated that Dr Lister the psychiatric superintendent had discharged the accused from the hospital to Fremantle Prison after the accused absconded from Graylands Hospital and because of his charges, his past record, the risk to the public (if the accused was at large in the community) and the inability to have a prison escort to guard him whilst in Graylands.
2. The subsequent Fremantle Prison health service notes clearly indicate that the accused was regarded as having a diagnosis of paranoid schizophrenia. He was treated with antipsychotic medication for a while but when the doctors failed to note evidence of psychosis it was stopped.
3. The notes indicate that in early 1989 the accused was mainly concerned with a belief that his ear was blocked and there was something in his head. The notes indicated that on 27 February 1989 he was 'touchy + paranoid + refuses to discuss anything other than his ear'.[40]
4. The accused was interviewed for the preparation for a presentence report on 3 March 1989. The subsequent report by Mr Paul McEvoy, clinical psychologist, dated 16 March 1989 stated that the accused's general presentation was 'calm and reasonably cooperative' but that he showed 'signs of a relatively serious disturbance'. Mr McEvoy said that the accused 'made some comments suggestive of moderately bizarre ideas' but did not explain what these were.[41]
5. In early April 1989 the notes record that the accused's somatic complaints were increasing and on 10 April 1989 a note was made that this maybe a prodromal relapse of his psychosis. On 14 April 1989 there is a note of a relapse and that the accused was claiming that poison had been put into his coffee a year ago in Bunbury and that this was causing his present physical symptoms. He agreed to commence a dose of Pimozide an antipsychotic drug.
6. On 19 April 1989 a fellow prison inmate reported that the accused was having auditory hallucinations and held beliefs that he was God and that he must kill someone.[42]
7. The accused remained in Fremantle Prison after he was sentenced on 20 March 1989 to 11 months' imprisonment on each unlawful wounding offence to be served cumulatively on one another.
8. In June 1989 it was noted that the accused was still taking antipsychotic medication and there was no obvious evidence of psychosis. However in July and August there are notes indicating that he had ceased taking the antipsychotic medication. On 28 September 1989 Dr Rollo noted that he had multiple hypochondriacal concerns of near delusional quality. He had agreed to resume the antipsychotic medication.[43]
9. On 22 October 1989 the accused was released from prison and went to live with his brother in Wembley. The knife the accused used to commit the offences on 28 August 1988 together with its sheath were returned to him when he left prison. There is nothing to indicate whether he was given Pimozide to take with him into the community. I note that on 29 September 1989 he had complained that the medication made him feel faint and on 12 October 1989 he had declined to see a doctor.[44]
10. There is no record of any medical or psychiatric consultation between the accused leaving prison and 23 November 1989 being the date that the accused killed Mr Nguyen.

Events and psychiatric condition after 23 November 1989

1. As stated earlier, on 28 November 1989 the accused left Perth and he eventually travelled to Queensland. In early February 1990 he was living on the streets in Southport Queensland. On the evening of 13 February 1990 he stabbed six people one of whom died (the Queensland offences). The facts of these offences are not contained in the statement of material facts in this matter or the judge's sentencing remarks. However, the allegations are contained in various documents which are in evidence. What follows is a summary of the allegations which I give in order to provide some indication of the nature of the offences but I do not make any finding that these were the precise facts on which the accused was subsequently sentenced.
2. Late in the afternoon of 13 February 1990 the accused met victim one and they may have shared a large number of Valium tablets. Late that evening victim one was asleep on the grass in a park when he was awakened by the accused stabbing him. Victim two saw the incident and followed the accused into the park. He was confronted and stabbed by the accused. The accused then walked to another address where he struck victim three who apparently died from the assault. A fire was then set at that address. The accused was charged with the murder of victim three and arson but it does not seem that he was tried for, and he definitely was not convicted of, either the murder or arson.
3. The accused then went to another set of units. He broke into a unit and struck victim four who was sleeping on the head with a piece of wood. As he got up to defend himself he was stabbed by the accused. The accused then went to another set of units nearby and broke into one of them. Victim five was awakened by the accused. He struck her several times on the head with a piece of wood and then stabbed her several times. Victim six heard victim five cry out and entered the room. She was then struck by the accused and stabbed by him.[45] It is not mentioned that the accused knew any of the victims apart from victim one.
4. The accused was arrested soon afterwards. He assaulted a police officer involved in his arrest.
5. On 20 February 1990 Mr Jeffery Grantham forensic and clinical psychologist prepared a report for the Brisbane Correctional Centre in which he noted that the accused did not wish to discuss with him anything relating to the Queensland offences.
6. The accused told Mr Grantham that when he was arrested for vagrancy and held by the police for three days (this must be a reference to his arrest on 8 February 1990 during which he was interviewed by Western Australian detectives about Mr Nguyen's death) 'he was treated like rubbish'. On release he was 'agitated' and consulted a general practitioner to obtain a prescription for Valium. He said he did not drink any alcohol and declined to comment about whether he had been using other drugs.[46]
7. Mr Grantham said that during his discussion the accused had given 'little away'. He showed 'no sign of emotion that would correspond to a normal reaction to what he is alleged to have done. He did not report any major effects from having recently taken drugs nor show any sign of being psychotic'.[47]
8. Mr Grantham provided a further report on 28 February 1990 after he had interviewed the accused on a second occasion on 27 February 1990. Mr Grantham said that his assessment corresponded to the Western Australian diagnosis of schizophrenia. He did not report any positive signs of psychosis. The symptoms which he described were of the negative signs of schizophrenia.[48]
9. Unfortunately there are no other descriptions of the accused's mental state between 14 February 1990 and 12 March 1990 the date on which the accused was transferred to the John Oxley Memorial Hospital (JOMH).
10. On 12 March 1990 Dr Peter Fama a psychiatrist certified that he had that day examined the accused and formed the opinion that he was suffering from a mental illness of a nature or to a degree that warranted his detention at the JOMH.
11. The inpatient progress notes from JOMH state that the accused was on antipsychotic medication from the time of his admission. On admission he was 'somewhat suspicious and guarded but he had no overt psychotic features'.[49]
12. Dr Fama completed a report on 23 April 1990 in which he noted that he had seen the accused on seven occasions since his admission to the JOMH. Dr Fama said that overtly psychotic features had appeared gradually. On 30 March 1990 during an interview with a registrar he described hearing voices which told him he would go to hell. These voices squabbled amongst themselves because they feared that the accused was 'the creator'. On 3 April 1990 he warned staff to 'watch it' as he had 'friends in high places'. At interview on 20 April 1990 he interpreted the distant murmur of patients in the common room as a discussion of the trial and a condemnation of Jesus Christ.
13. Whilst at the JOMH the accused wrote prolifically. Some of these writings confirmed the psychotic process. He was occasionally involved in altercations with other patients and had been 'touchy' but not 'unduly truculent'.
14. The accused denied any part in the Queensland offences. He did not express any concern about the dead or injured. He had said that he had travelled to Queensland 'just to see what it was like'. Thus he had made no admissions to that date about his thoughts, feelings or motivations which resulted in the Queensland offences.
15. Dr Fama reported that:

(1) if the accused was fit to stand trial, a defence of insanity 'would be appropriate';

(2) the accused's mental condition was one of a persistent psychosis, namely paranoid schizophrenia;

(3) it was highly likely that at the time of the Queensland offences the accused was suffering from a disease of the mind, and that there is no other possible explanation for the Queensland offences;

(4) his paranoid schizophrenia would be sufficient to deprive him of the capacity to control his actions or to know that what he was doing was wrong;

(5) an excessive intake of Valium could aggravate but not cause the accused's protracted violent behaviour;

(6) the likely outcome of the accused's mental illness was chronic disability and continued high risk to the community; and

(7) further treatment might ameliorate the accused's symptoms but there was no realistic prospect of release from a security hospital.[50]

1. On 28 May 1990 Dr Donald A Grant consultant psychiatrist provided a report to the Queensland Mental Health Tribunal. Dr Grant had seen the accused on 22 May 1990 and had taken into account a large amount of written material relating to the accused including Dr Fama's report.
2. At interview the accused had declined to speak to Dr Grant about the Queensland offences. The accused said that:

(1) at the time of his arrest he believed he was well and that there was nothing wrong with him;

(2) he did not have any symptoms of illness, any problems with his thinking or any auditory hallucinations;

(3) for the first few days after his arrest he was not feeling 'too well' and he thought this may have been because the police put some kind of drug into his coffee; and

(4) he had not had any psychotic symptomatology since being arrested.

1. Dr Grant mainly relied on the written material in his possession to complete his report. On this basis he reached the same opinions as Dr Fama.[51] The accused declined to cooperate further in Dr Grant's examination.
2. On 3 August 1990 the accused was found fit for trial by the Queensland Mental Health Tribunal.[52]
3. In August 1990 the accused was seen at the JOMH on three occasions by a psychologist Ms C Spencer who prepared a psychology report on 24 August 1990. She noted that the accused was functioning within the normal range of intelligence. However he could demonstrate greater potential on tasks of visuomotor skills and constructive abilities than on verbal tasks. The testing revealed deficits in functioning that were just outside the normal range when encoding verbal material as well as deficits in acquired learning. His memory efficiency was found to be just marginally below average. Good attentional and concentrational skills were displayed throughout testing.
4. Ms Spencer said that the accused's clinical scale results corresponded to a profile type which describes antisocial traits in a narcissistic person who is depressed.[53]
5. On 28 August 1990 the accused was discharged from the JOMH and received at the Brisbane Correctional Centre to await trial.[54] The day before he told a staff member at the JOMH that he preferred not to take his medication and that he intended to refuse it when he returned to prison.
6. As stated previously, in March 1991 the accused was found guilty after trial of the Queensland offences. It seems that he did not rely on an insanity defence or diminished responsibility, which was then part of the Queensland law. Dr Fama prepared a report for sentencing. Prior to doing this he saw the accused on 28 March 1991 at the Brisbane Correctional Centre. He concluded that the accused's condition had changed a little since he had left the JOMH on 28 August 1990 although he was less anxious. The accused told Dr Fama that he felt that the prison environment suited him better than the hospital. He was receiving antipsychotic medication. Dr Fama said that the accused remained without insight and denied any present ideas of persecution or doubts about his personal identity. He dismissed his former writings asserting that he was Lucifer as merely 'fanciful ideas of no significance'.
7. Dr Fama's final diagnosis was that the accused had residual paranoid schizophrenia 'a condition which may again in future become exacerbated into an acute, violent phase'.[55]
8. On 19 April 1991 the accused was sentenced to life imprisonment for the Queensland offences.
9. On 6 July 1994 the accused was transferred at his request from Queensland to Western Australia. He was received at Casuarina Prison the same day.
10. The accused remained in custody in Western Australia in various prisons and the Frankland Centre until he was released on parole on 14 April 2006. Some of the medical notes from the prisons at which he was held are in evidence.
11. Dr Patchett summarised the records as showing that the accused's paranoid schizophrenia was well managed for much of the time on longacting injectable antipsychotic medication. He remained stable throughout most of the 11 years and presented with mostly negative symptoms of schizophrenia (amotivation, affective blunting and social withdrawal) and no positive symptoms (psychosis).
12. There was a period of five months towards the end of 1997 and the beginning of 1998 when the accused's antipsychotic medication was not administered. Dr Patchett says it is not clear why this happened but it appears to have been overlooked. In early 1998 he began to relapse and exhibit psychotic symptoms. He was reviewed by a psychiatric registrar on 30 January 1998 and described hallucinations and expressed delusional beliefs. He described a visual hallucination of seeing a face in the sky with a lightning bolt through one eye, of hearing God's voice and hearing the radio and TV talking about him. He described hearing 'the Holy Spirit' talking through other prisoners saying things like 'I rule, fool'.
13. The antipsychotic medication was reinstituted and the accused was followed up by the psychiatric registrar. He then described other psychotic phenomena such as the voice of God talking to him through music and telling him that he was a reincarnation of Leonardo Da Vinci, Daniel and Adam. He also spoke of how he knew Sylvester Stallone had been reincarnated, and that Burt Reynolds had been Shakespeare and King Solomon. He also believed that he was a reincarnation of John the Baptist because the voices called him Johnnie. There was also concern that he was taking an inappropriate interest in female staff and was described to be watching and even recorded to be 'stalking' a female staff member.
14. The accused settled over the ensuing four months in prison with the reinstatement of the antipsychotic medication and without the need for him to be transferred to the Frankland Centre.[56]
15. The accused was interviewed in 1999 by Mr Roger Summers, clinical psychologist - registrar, for the preparation of a psychological report dated 22 October 1999.[57] The accused described hallucinations and illusions in the past tense, indicating a dearth of these experiences recently. The accused claimed he was not sure whether the voices he heard in the past directing him to kill another person were from God or from Satan. His hallucinations included seeing God in the sky coming down to him. He adamantly insisted that someone had spiked his coffee in prison and this event had initiated his illness.
16. Mr Summers assessed the accused's general intellectual functioning and found that his results were compatible, albeit slightly higher overall than previous testing.[58] Mr Summers considered that the accused's longterm and shortterm memory were intact.
17. On 29 April 2002 Dr Zdenek Srna, psychiatrist, provided a report to the Western Australian Parole Board. He noted that he had interviewed the accused on one occasion on 17 April 2002. The accused told him that in his early 20s he met a female whom he lived with for two years. Towards the end of the relationship he began to hear a female voice in his right ear telling him to break up with his girlfriend. The voice kept telling him to drink petrol, to kill himself and to kill other people. He began to be concerned about his safety and for that reason he began to carry a knife with him. It was after this that the offences of 28 August 1998 occurred. After his release he moved to Queensland to get away from the voices. While in Queensland he swallowed some Valium tablets and he was woken up by voices commanding him to kill his companion. He stabbed him once in the heart and then he ran away and met another person whom he stabbed several times because he was commanded to by the voices.
18. Dr Srna noted that the accused had 'pronounced schizophrenic phenomena such as poverty of thought, slowing of thinking and psychomotor slowing'. However, Dr Srna could not elicit any significant formal thought disorder or any abnormality of content or thought or any other florid psychotic symptoms.
19. The accused told Dr Srna that he had been happy on his antipsychotic medication which he had been receiving for many years. He told him that since he had begun the current medication regime he had not been having any problems with voices or feeling anxious as he used to. He said that for eight years he has heard no voices.[59]
20. On 28 August 2002 Ms MaryAnne Martin, forensic psychologist, provided an independent clinical review/assessment to determine the accused's suitability for a prerelease programme prior to his first statutory review, being 14 February 2003. Ms Martin noted that she had interviewed the accused on two occasions, being 12 and 18 December 2001.
21. The accused told Ms Martin that after leaving prison in October 1989 he went to stay with his brother. He stayed for about a week but left when he started hearing voices commanding him to kill his brother. He then travelled to Queensland. He acknowledged that police from Western Australia interviewed him in Queensland regarding a wilful murder enquiry. He said that the knife that was used in this murder was one that he threw in a dumpster when he heard the voices telling him to kill his brother.
22. The accused told Ms Martin that it was whilst he was in Bunbury Prison in 1981 that he started to experience auditory and visual hallucinations. This happened after another prisoner had put LSD into his coffee. The accused also reported a number of somatic complaints to Ms Martin which are confirmed by the prison medical reports.[60]
23. In relation to a period when he was living with his girlfriend, the accused said that he heard voices telling him to 'repent'. He started thinking that she was being unfaithful to him. He read the Bible eight times and saw a particular movie seven times during this period. At one point he did not sleep for seven days. At the end of the fouryear period he started to hear voices telling him to 'ice them' (meaning to kill people) and to 'eat shit'. He said he bought a knife and started to carry it around believing that that would make the voices stop. This was just prior to the offences on 28 August 1988.
24. The accused gave Ms Martin an account of the Queensland offences. This is one of the earliest and fullest accounts that he had given of those offences. He described taking 30 Valium tablets and drinking beer prior to the offending. He said:

[W]e fell asleep. When I woke up it was drizzling. I heard voices saying to 'Ice him'. I stabbed him in the chest with a pocket knife, and ran off. I stabbed the other bloke 3 times. I broke the branch off a tree, and ran into a flat. I could hear the voices on and off. I hit a man over the head, and he ran into the kitchen. I ran into another house. There was one woman in the bedroom. I hit her over the head 3 4 times and stabbed her girlfriend in the breast. I was blacking out of it; I was just looking for somewhere to sleep. I tried to be merciful. I didn't want to do it deep down. It was like a magnet drawing me, I had no control.[61]

1. Ms Martin said that she had no reason to doubt the accused's veracity. However, I note that the account given by the accused does not accord entirely with other known facts. For example, he does not mention all of the victims or all of his assaults of them.
2. On 4 August 2003 Dr Patchett provided a report to the Parole Board of Western Australia which was a psychiatric assessment with particular regard to the accused's suitability for a prerelease programme including its stages and components. For the purpose of preparing the report Dr Patchett interviewed the accused at Casuarina Prison on 11 June 2003.
3. The accused explained to Dr Patchett that he had experienced auditory hallucinations for four years prior to the Queensland offences. He said he heard God's voice telling him that he was Leonardo Da Vinci and Daniel the Prophet and then how the voices changed into those of the devil which persecuted him and ridiculed him. At the time of the Queensland offences he was hearing voices shouting at him to kill people, saying such things as 'people are no good' and 'you are a coward'. He said that these voices induced him to offend. He said that he continued to have a strong Christian faith and rationalised his whole psychotic experience in religious terms with the statement 'I am not sure why he [meaning God] has put me through all of this'.
4. The accused explained to Dr Patchett that he knew that he had an illness called schizophrenia but that such an affliction was a sign that he had lived a previous life as somebody famous.
5. Dr Patchett reported that the accused was cooperative in the interview setting but lacked spontaneity and presented with a clear affective deficit characterised by reduced range and amplitude of emotional response. There was evidence for mild thought disorder with tangentiality and some loosening of associations. He continued to hold grandiose beliefs. There was no objective evidence for perceptual disturbances and he was grossly cognitively intact, although he displayed vocabulary and quite unsophisticated syntax, probably reflective of his intellectual capabilities.[62]
6. On 31 January 2005 the accused was transferred to the Frankland Centre for preparole assessment and rehabilitation. He remained an inpatient until 30 March 2005 when he was returned to prison.[63]
7. Dr Bryan Tanney, consultant psychiatrist, prepared a discharge summary report dated 29 April 2005. Dr Tanney noted that the accused continued to report preoccupation with religious beliefs but there was no evidence that these were to a delusional extent.[64] It is notable that when he was interviewed by psychiatrists and psychologists when he was in prison in Western Australia he did not make any admissions to killing Mr Nguyen despite knowing he had done so.
8. On 1 May 2005 the accused was transferred from Hakea to Acacia Prison and then to the Frankland Centre. He was released on parole on 14 April 2006.

1. Dr Patchett is a highly qualified and experienced consultant forensic psychiatrist. His qualifications and experience are not in dispute.
2. As mentioned earlier, Dr Patchett had seen the accused in 2003. In 2017 he was requested by the State to prepare a psychiatric report in relation to the accused's likely mental state at the time he stabbed Mr Nguyen. For the purpose of preparing the report he interviewed the accused on 20 October 2017.
3. Prior to completing his report, Dr Patchett also reviewed a large amount of written material, some of which I have referred to. The parties consent to me taking into account Dr Patchett's opinion even though some of the material which he took into account is not in evidence.
4. During the interview on 20 October 2017 the accused displayed evidence of mild formal thought disorder with some tangential responses and 'elusive thinking' whereby his talk lacked the necessary substance and clarity to adequately convey meaning. The content of his speech had a consistent religious overtone and he often illustrated his ideas with reference to the Bible and his Christian faith. He asked Dr Patchett if he was a Christian.
5. The accused described previously held abnormal beliefs (delusions) and previously experienced abnormal perceptions (hallucinations) but he denied hearing voices currently. There was no evidence during the interview of him responding to unseen stimuli. Cognitively he was fully oriented in time, place and person. His attention and concentration was intact and his memory was patchy, particularly for events when he was floridly psychotic. He displayed limited insight into the presence of mental illness. He expressed feelings of regret rather than remorse in relation to the death of Mr Nguyen.
6. Dr Patchett diagnosed the accused with paranoid schizophrenia and mental and behavioural disorders due to the harmful use of alcohol and cannabis. He said that these mental and behavioural disorders were in the context of underachievement at school, underemployment, periods of homelessness, previous imprisonment in relation to serious offending and alcohol and cannabis misuse.
7. Dr Patchett concluded that there was both subjective and objective evidence that the accused probably developed psychosis at a young age, from at least his midteens. His psychosis had been characterised by prominent auditory and visual hallucinations and grandiose, religiose and persecutory delusions. His auditory hallucinations had been extremely intrusive and persistent when he had not been receiving treatment and had the characteristic of being commanding in nature. He said that it is apparent that the accused has acted on commands in the past and that it seemed likely he had done so in relation to past offending and the killing of Mr Nguyen.
8. Dr Patchett noted that despite assertive psychiatric follow up and stable antipsychotic treatment for the past 27 years, the accused's illness had not fully responded to treatment. He displayed characteristic deficits in social and motivational function and had residual ambivalence about the nature of his psychosis. Dr Patchett believed that the accused's current antipsychotic medication Clozapine had resulted in gradual improvements in functioning, but he retained a preoccupation with religious beliefs that were central to his psychosis.
9. The accused still questioned what the true nature of reality is and was, and whether his psychotic beliefs and experiences were indicative of a special relationship with God or the devil. That is, the accused does not have a full appreciation of the unreality of his psychotic phenomena.
10. Dr Patchett concluded that the accused was seriously mentally ill when he committed the Queensland offences just three months after he killed Mr Nguyen. Dr Patchett believed it was highly likely that the accused was seriously unwell and psychotic at the time he killed Mr Nguyen on 23 November 1989. He said that he had previously been diagnosed with paranoid schizophrenia and was almost certainly experiencing psychotic symptoms from early 1988 onwards. Those symptoms consisted of visual and auditory hallucinations and grandiose, religiose and persecutory delusions.
11. Dr Patchett said that it is impossible to draw definitive conclusions about an individual's mental state 28 years ago. However, Dr Patchett said that besides the accused's memories of the events there was also contemporaneous and detailed information derived from contact with specialist forensic psychiatric services in Western Australia and Queensland which confirms that he was floridly psychotic and had been for some time. Dr Patchett said that it is apparent from the many accounts that the accused's psychosis has been persistent and the phenomena he experiences have remained remarkably stable throughout the years. He has consistently and repeatedly described auditory hallucinations of many voices, but one main one he thinks is God but could be the devil. Backing up that central voice he has described many times and consistently a chorus of voices who have included biblical and historical characters such as Lucifer, Daniel, Jesus, Eve, Adam, Carmen (who is Eve), Dana (Lady Wisdom) and Michael the Archangel. These voices have reinforced a chronic delusional belief that he is a reincarnation of Leonardo Da Vinci and is related through reincarnation to Adam, Joseph and Daniel, and also to the actor Tom Cruise.
12. In relation to whether the accused's state of mental disease deprived him of the capacities described in the Code s 27, Dr Patchett is of the opinion that the accused understood what he was doing when he stabbed Mr Nguyen.
13. Dr Patchett believed that it was likely that the accused was deprived of the capacity to control his actions at the time he stabbed Mr Nguyen. That is because the accused believed that the auditory hallucinations he was experiencing were in fact the voice of God (or the devil) and others who commanded him to do things including to stab people. He reported that the voices told him to attack the deceased and to stab him with his left hand not his dominant right hand, which he did.
14. Dr Patchett was of the view that it is probable that the accused was deprived of the capacity to know that he ought not do the act of stabbing the deceased with a knife which resulted in Mr Nguyen's death. That is because the accused told Dr Patchett and had told others that he had thought at times that he was carrying out God's work. He told Dr Patchett that 'God gives life and God takes it away. Maybe he was making me take the lives for him'.[65]

1. In his oral evidence Dr Patchett said that the accused's accounts of his psychotic delusions and hallucinations were 'remarkably stable' over the last 27 years.[66] He concluded that the accused was recounting genuine memories.[67]
2. Dr Patchett said that he believed that the accused had been psychotic for a couple of years prior to November 1989.[68]
3. Dr Patchett said, in effect, that his opinion that the accused lacked the capacity to control his actions was heavily influenced by the accused's account that he changed the knife from the right hand to the left hand, and then he changed it from the left hand to the right hand after stabbing the deceased in the head. Dr Patchett said that while he did not have evidence that the accused heard a direct voice at the time telling him to change hands the accused had said that God said to use his left hand. That made Dr Patchett believe that it was possible or likely that the accused was unable to control his actions in that even if he had a policeman at his elbow, in the classic sense, he probably still would have used his left hand.[69]
4. In crossexamination Dr Patchett said that psychiatrists find that the ability to control actions is most likely impaired in a person suffering from schizophrenia by command hallucinations telling the patient that they have to do something. In the accused's case he was of the opinion that the accused would have used his dominant right hand if he had not been commanded by a command hallucination to use his left hand.[70]
5. However, Dr Patchett said that it was 'particularly' in relation to the third limb of s 27 that he was satisfied that the accused was deprived of the capacity to know that he ought not do the acts which killed Mr Nguyen. Dr Patchett said that the accused summarised the position very well when he said that his actions were wrong for man, but it was right to do for God.[71] I gained the impression from Dr Patchett's evidence that his opinion about the lack of this capacity was stronger than it was for the lack of the capacity to control actions.
6. In crossexamination Dr Patchett spoke of the tremendous difficulty in treating paranoid schizophrenia and that there is a view that people are never cured of the disease. Rather it waxes and wanes, assisted by medication but even patients on medication can have 'breakout periods of psychosis'.[72]
7. He was also asked about the Fremantle Prison health services' notes from the 1980s[73] and he said that there was some disagreement between treating psychiatrists in the late 1980s about whether the accused had schizophrenia. Some of them gave him time off his antipsychotic medication. He thought the evidence was that when the accused was off his medication the voices came back. He said that the other 'worrisome thing' was that when the accused was in prison he was on oral antipsychotic medication being Pimozide 2 mg which the accused probably did not take after he was released in October 1989. The accused was also not released on a parole order or any form of community supervision.[74] Dr Pascu confirmed that her enquiries had not revealed any form of follow up for the accused in the community in late 1989 or early 1990.[75]

1. Dr Pascu is also a highly qualified and experienced consultant forensic psychiatrist. Her qualifications and experience are not in dispute.
2. Dr Pascu was requested by the accused's lawyers to prepare a report concerning the accused's mental illness, his likely mental state at the time he stabbed Mr Nguyen, his fitness to stand trial and his treatment needs and prognosis. For the purpose of these reasons, I need only consider Dr Pascu's opinion about his mental illness and his likely mental state at the time he stabbed Mr Nguyen. For the purpose of preparing the report, Dr Pascu interviewed the accused on 7 March 2017 at Casuarina Prison for approximately two and a half hours. She also reviewed a large amount of written material. Again, even though some of that material is not in evidence, there is no objection to me taking into account Dr Pascu's opinion.
3. The accused told Dr Pascu that he accepted the events as described in the statement of material facts.[76] He told her that what had happened was 'awful'. He said that he was not well when it happened and had been unwell since he was in about grade 5. He said at that time he 'looked in a trough and saw ice and my mind went clear; I just had this thought that I will put people on ice, meaning they will end up dead when I become an adult; I didn't know what that was but I felt like I heard a voice in the sky and I kept looking at the sun and the eclipse and thought I was going to get blind'.
4. The accused told Dr Pascu that about 18 months before he killed Mr Nguyen he started to hear voices telling him to cut off his hands, cut off his penis, to eat shit, drink petrol and kill people. He said that the voices were coming from everywhere including the TV, the radio, from the car exhaust and the plane exhaust. The accused said that after he got out of prison in October 1989 he lived on the streets. He did not take any treatment and did not get any medical or psychiatric follow up. He said that he had some medications but the doctors said he was just anxious even though he told them about the voices. He said that after he got out of prison the voices were even telling him to kill his brother. He stayed away from everybody.
5. On the evening that he attacked Mr Nguyen he was walking in the city. He said that he 'saw Eve and Michael the Archangel having it on together; I thought I was Adam and seeing Eve and Michael together I got very angry; the voices were telling me kill anybody, they didn't tell me to kill that poor man, just anybody I guess, whoever was there'.
6. The accused then described to Dr Pascu how he killed Mr Nguyen. It was a similar description to that which he described to the police in the 2016 EROI. He admitted to travelling to Queensland a few days after the killing and to committing the Queensland offences. He described ongoing voices commanding him to harm others and also to hurt himself.
7. The accused told Dr Pascu that he felt increasingly paranoid after being remanded in custody on 3 November 2016. He said that the voices had come back and he tried to keep them away by reading the Bible and attending church. He told her that they were derogatory in nature, but not currently commanding him to harm himself or others. He denied getting messages from the TV and radio.
8. Dr Pascu's mental state examination noted that the accused had a mild thought disorder with overinclusiveness and tangentiality. He described ongoing auditory hallucinations. There was also evidence of persecutory and grandiose delusions with religious content. He denied referential delusions, but described these in the past.
9. His mood was anxious and he was very worried that 'they will get me'. His affect (the external expression of his emotions) was restricted, blunted, anxious, with reduced range and at times increased intensity, needing a lot of reassurance. He had insight into his mental illness, his significant anxiety related to the court process and the need for and benefits of treatment. His judgment was fair. Cognitively he appeared to be grossly intact.
10. Dr Pascu diagnosed the accused with paranoid schizophrenia of a chronic nature even on treatment, with residual positive and negative symptoms. He had a history of substance abuse with current declared abstinence. He had a socially avoidant personality structure with antisocial traits. He had functional and occupational decline. He had no meaningful supports apart from family and significant anxiety relating to the court processes.
11. In Dr Pascu's opinion the accused's chronic paranoid schizophrenia had been present from his late teens, with a confirmed diagnosis in 1988. His illness was characterised by acute tormenting auditory hallucinations, derogatory in nature, and a command to harm others, with a religious content, alongside significant persecutory delusions which further contributed to him carrying a knife 'for protection'.
12. It is possible that in the past he used illicit substances to selfmedicate his evolving psychotic illness. The addition of illicit drug use may have further contributed to the early development of his psychotic illness. However, there was no clear precipitant to the accused's chronic mental illness.
13. Dr Pascu said that the accused was not treated consistently whilst in prison in Western Australia in 1988 and 1989. Further, following his release from prison in October 1989 the knife he had used during his prior offending was returned to him but he was not offered adequate psychiatric treatment and follow up. His mental health continued to deteriorate without any treatment following his release from prison in October 1989. He thereafter killed Mr Nguyen and travelled to Queensland where he committed the Queensland offences.
14. After the accused started to receive regular psychiatric treatment and follow up in 1990 his mental state improved. His mental state during the 2016 EROI showed evidence of him being initially more guarded and anxious and at times distracted. However, there was no evidence of him being actively psychotic and he had reasonable insight into his illness.
15. Dr Pascu was of the opinion that at the time the accused killed Mr Nguyen he was not deprived of the capacity to know what he was doing. He was deprived of the capacity to know that he ought not do the act due to his significantly impaired mental state and impaired judgment. He was deprived of the capacity to control his actions due to his serious mental illness which was untreated at the time.[77]

1. Dr Pascu said that the Fremantle Prison health services records confirmed her opinion that from 1987 and certainly from his admission to prison in 1988 the accused was psychotic.[78] He had psychotic symptoms such as auditory hallucinations and delusions. She said that in a prodrome you do not see the signs that clearly. The prodrome is more about 'a bit' of anxiety, depression and some behavioural problems.[79]
2. Dr Pascu expanded on the basis of her opinion that the accused was deprived of the capacity to know that he ought not to do the acts which killed Mr Nguyen. She said that due to his significantly impaired mental state and impaired judgment he was labouring under defects of judgment and reasoning. He knew that it was wrong for a man to do something like he did to Mr Nguyen because it was against the law, but not wrong for God. His reality at the time was that he was somehow connected to God and almost identified with God.[80]
3. Dr Pascu also expanded on the basis of her opinion that the accused was deprived of the capacity to control his actions which killed Mr Nguyen. She said that she agreed with Dr Patchett's view that the command auditory hallucinations together with paranoid delusions were probably the strongest factors leading to that conclusion. In the accused's case having the command auditory hallucinations from God to do what he did and to change hands when he did so caused her to form the opinion that he acted clearly in response to command auditory hallucinations. She described the command auditory hallucinations and persecutory delusions as 'control override symptoms' showing that the accused was at a high risk of doing whatever act he was commanded to do.
4. Dr Pascu said that the accused's acts in throwing away his knife, shoes and clothing did not change her opinion about his capacity to control his actions because a person with a psychotic illness can still do normal things that everybody else does.[81]

Was the accused in a state of mental disease at the time he killed Mr Nguyen?

1. I find that the accused was suffering from paranoid schizophrenia, including the positive symptoms (hallucinations and delusions which are characteristic of a psychosis) of this illness when he killed Mr Nguyen.
2. Paranoid schizophrenia is a mental illness which falls within the meaning of 'a state of mental disease' for the purpose of the Code s 27 as it was on 23 November 1989.
3. This conclusion is based on the uncontroverted evidence of Dr Patchett and Dr Pascu which is supported by the opinions of other psychiatrists between 1988 and 1991, and the other findings of fact which I have made.

Did the accused's mental disease deprive him of the capacity to understand what he was doing when he killed Mr Nguyen?

1. The accused does not assert that he was deprived of the capacity to understand what he was doing when he killed Mr Nguyen. Both psychiatrists are of the opinion that he knew what he was doing. I am of the opinion that the accused knew what he was doing when he killed Mr Nguyen. It is clear that he knew he was holding the knife and he deliberately stabbed Mr Nguyen with it with the intention that he would die.

Did the accused's mental disease deprive him of the capacity to control his actions which killed Mr Nguyen?

1. Both Dr Patchett and Dr Pascu are of the opinion that the accused was deprived by his mental disease of the capacity to control his actions. This is on the basis that the accused has said that he was commanded by what he believed was God's voice to kill somebody. The psychiatrists testified that a command hallucination is a characteristic of paranoid schizophrenia. Their opinions were also influenced by the accused's statements that he stabbed Mr Nguyen with his nondominant hand because the voice he heard told him to do so.
2. As I find that the third limb of the Code s 27 has been proven it is unnecessary for me to decide whether the accused also was deprived of the capacity to control his actions which killed Mr Nguyen. However, as it was one of the limbs relied on by the accused and Dr Patchett and Dr Pascu agree that he was deprived of this capacity, I will make a decision in respect of it.
3. The factors which would support such a finding are those principally relied on by the psychiatrists which I have described above. Additionally, there are the following matters:

(1) there is no rational reason or motivation for the fatal attack on Mr Nguyen;

(2) three months later the accused committed the Queensland offences which were also lacking any kind of rational basis;

(3) the accused told the police in the 2016 EROI that he 'lost control' and stabbed Mr Nguyen in a 'frenzy'; and

(4) the accused was suffering from paranoid schizophrenia which, by itself, would make it more likely that he, as opposed to someone without the illness, would be deprived of the capacity to control his actions.

1. However, there are also the following factors which suggest that the accused had the capacity to control his actions:

(2) unlike in the Queensland offences, he did not continue to seek out and attack others;

(3) he was able to resist the voice he heard the following day which told him to kill his brother;

(4) immediately after the fatal attack on Mr Nguyen he consciously washed his hands and disposed of the knife; and

(5) he at all times maintained the ability to direct his actions such as by choosing where he would stab Mr Nguyen.

1. Thus, there are some facts and circumstances which cause me to hesitate before accepting the psychiatric opinion on this issue.
2. However, after giving what the authorities say is the proper weight to be given to uncontradicted psychiatric evidence, I am satisfied on the balance of probabilities that the hallucinations and delusions which the accused was experiencing and in particular the commands which he believed he heard from God telling him to kill someone and to use his nondominant hand to do it mean that he was deprived of the capacity to control his actions in the sense that he could not exercise his power of choice to act. This may be thought to be a broader concept than involuntariness. But as Sir Samuel Griffith said, if because of mental disease a man is incapable of exercising the power of determination or choice, he should be treated on the same footing as a man who does an act involuntarily; that is, he should be considered as being deprived of the capacity to control his actions.
3. It is my opinion that the accused has proven on the balance of probabilities that he was, because of his mental disease, incapable of exercising the power of determination or choice to act or not to act and thus deprived of the capacity to control his actions when he killed Mr Nguyen.

Did the accused's mental disease deprive him of the capacity to know that he ought not do the acts which killed Mr Nguyen?

1. I am satisfied on the balance of probabilities that at the time the accused fatally stabbed Mr Nguyen his mental disease deprived him of the capacity to reason as to what was right or wrong according to ordinary standards. That is, to know that he ought not do the acts which killed Mr Nguyen.
2. From what the accused said in the 2016 EROI he knew that to kill was punishable by law and against the laws of man. However, his positive symptoms of paranoid schizophrenia, being hallucinations and delusions, meant that he had a complete incapacity to reason that killing Mr Nguyen was wrong. That is because he believed that it was right by God and he was acting under a command to kill from a voice which he believed at the time was God's voice.
3. It is only subsequent to the death of Mr Nguyen that the accused has queried whether the command to kill came from God or the devil. That is as a result of conversations he has had with others to the effect that God would not command someone to kill in these circumstances.
4. This is a case where the distinction spoken about in Stapleton between what the accused understood was wrong at law and what he understood to be morally good and evil is highly relevant. The accused understood that it was against man's law to kill but he believed that it was morally good for him to kill because of the command he was receiving from God to kill. He was unable to think rationally of the reasons which would lead ordinary people to consider his actions to be wrong. His mental disease so governed his faculties at the time of the commission of the fatal acts that the accused was incapable of reasoning with 'some moderate degree of calmness as to the wrongness of the act'.
5. These findings are supported by the opinions of Dr Patchett and Dr Pascu.

1. Consequently the accused is not criminally responsible for his actions which killed Mr Nguyen. I find the accused not guilty of the murder of Van Phan Nguyen on account of unsoundness of mind and enter a verdict of acquittal on account of unsoundness of mind.[82] As required by law I make a custody order pursuant to the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 21.[83]

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

RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE JENKINS

[1] Criminal Procedure Act 2004 (WA) s 118.

[2] Criminal Procedure Act s 142, s 126(1)(d).

[3] Criminal Procedure Act s 120(2).

[4] Criminal Procedure Act s 146.

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

[8] Evidence Act 1906 (WA) s 32.

[10] Evidence Act s 32. The admissions are contained in exhibit 1, statement of material facts.

[11] Exhibit 1, statement of material facts.

[13] Exhibit 1, statement of material facts, pages 30 33.

[14] Exhibit 1, statement of material facts, page 33.

[15] Ward v The Queen [2000] WASCA 413; (2000) 118 A Crim R 78.

[16] R v Porter [1933] HCA 1; (1933) 55 CLR 182, 184 (Dixon J). The parties agree that the law of insanity which applies to this case is the law as at the date the accused killed Mr Nguyen that being s 27 as it was at 23 November 1989.

[17] Hone v The State of Western Australia [2007] WASCA 283 and the cases cited therein.

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

[21] Radford (1985) 20 A Crim R 388, 396.

[22] In R v Falconer the High Court generally approved of King CJ's comments even in the context of the Code provisions.

[23] Evans v The State of Western Australia [2010] WASCA 34. Evans was decided after amendments to the Code s 27 substituted the phrase 'mental impairment' for 'mental disease or natural mental infirmity'. It remains otherwise relevant to the construction of the Code s 27.

[24] Evans v The State of Western Australia [30] [31].

[25] Evans v The State of Western Australia [59] [61].

[26] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 367.

[31] Colvin E, McKechnie J and O'Leary J, Criminal Law in Queensland and Western Australia - Cases and Commentary (8th ed, 2018) 443 [17.33].

[32] There is nothing exceptional noted about his family upbringing.

[33] For the sake of completeness, the table includes his convictions for offences committed after he killed Mr Nguyen.