THE STATE OF WESTERN AUSTRALIA -v- SHAYLER [2019] WASC 86 (20 March 2019)

1. Both counsel for the State and the accused agreed to rely upon an agreed statement of facts.[4] In addition, given that the agreed statement of facts made reference to the statements and material from the State's brief of evidence, the brief was received as an exhibit.[5]
2. Section 93 of the Criminal Procedure Act 2004 (WA) relevantly provides:

(1) If an accused pleads not guilty to a charge on account of unsoundness of mind and the judge is satisfied -

(a) that the only fact in issue between the accused and the State is whether, under The Criminal Code section 27, the accused is not criminally responsible for an act or omission on account of unsoundness of mind; and

(b) that the prosecutor consents, and the accused does not object, to the judge doing so; and

(c) that it is in the interests of justice to do so,

(d) may decide the issue referred to in paragraph (a) on any evidence and in any manner the judge thinks just; and

(e) for that purpose, may ascertain any fact by the verdict of a jury or otherwise; and

(f) may find the accused not guilty of the charge on account of unsoundness of mind; and

(g) if such a finding is made and a jury has been sworn to give a verdict on the charge, must discharge the jury from giving its verdict on the charge.

(2) Subsection (1) is in addition to and does not affect the operation of section 146.

1. Given that the parties have each consented to the statement of agreed facts being relied upon, I am required to determine whether it is in the interests of justice to decide the issue on the basis of the agreed facts. I am satisfied that it is in the interests of justice to receive the statement of agreed facts as establishing the factual circumstances relevant to the determination of the issue in this case.
2. The agreed statement of facts is in the following terms:

1. The accused is the daughter of the deceased. At the time of the incident the accused was 49 years old and the deceased was 81 years old.
2. The accused was living at [redacted address] in Ballajura with her husband Mark Shayler (58), and her children Tegan (24), Samantha (16), Renae (22) and Peter. Another daughter, Ashlea (27), lived in Balga.
3. The deceased lived at [redacted address] in Stratton.
4. The accused has a clearly documented history of serious mental illness which has affected her episodically for the past 31 years. That metal illness has been diagnosed and conceptualised differently by different clinicians and services throughout that time but there is now consensus that she suffers from Schizoaffective Disorder.[6]
5. The accused's family were well aware of her mental illness. Her husband had to call the Midland Emergency Mental Health Services in the past when the accused was unwell, and on occasions the accused had to be hospitalised for her mental illness.[7]

1. On 9 September 1985 the accused was admitted to the Alma Street Clinic. She felt that something or someone was controlling her thoughts, feelings and behaviour. She was diagnosed with bipolar affective disorder.[8]
2. On 25 August 1986 the accused was admitted to Graylands Hospital. This was her second psychotic episode. She was diagnosed with manic depressive illness, manic episode with psychosis. She reported auditory hallucination commanding her to do various things to save the world. She reportedly told staff that she had to kill someone, her grandmother, after she had saved the world.[9]
3. On 5 May 1988 the accused was admitted to Graylands Hospital. The diagnosis was manic phase of bipolar affective disorder. Her behaviour was described as very disturbed and aggressive, and she appeared to be listening to auditory hallucinations at times.[10]
4. On 13 October 1988 the accused was admitted to Alma Street Clinic for bipolar affective disorder. There was no evidence of thought disorder.[11]
5. On 4 February 1990 the accused attended at Alma Street Clinic. She was pregnant. She was suicidal and not sleeping. [12] On 6 February 1990, after absconding from Alma Street Clinic (Fremantle Hospital), she was admitted to Graylands Hospital due to a manic relapse of bipolar affective disorder. She said she had been involved in removing 2500 dead sheep from her father's farm that had died in a flood. She reported that her thoughts were going back to the sheep and feeling that she was under an external control.[13]
6. On 31 May 1991 she attended at Graylands Hospital as she had not slept for nights and showed signs of mania. She denied psychotic phenomena or hallucinations.[14]
7. On 24 February 1995 she was admitted to Graylands Hospital. The diagnosis was bipolar affective disorder, manic phase. Her mood had been elevating and her need for sleep was greatly reduced. She claimed to be a soldier of the Lord and to hear the voice of God speaking to her. It was noted that she had been free of medication for two years.[15]
8. On 5 April 1995 she was admitted to Graylands Hospital. She had delusional ideation including a belief that she had special healing powers. Religious pre-occupations were noted. The diagnosis was bipolar affective disorder, mixed affective state.[16]
9. On 28 January 1998 she was admitted to Graylands Hospital. Persecutory and religious delusions were noted. She denied ideas of self-harm or harm to others. The diagnosis was bipolar affective disorder, manic phase.[17]
10. On 23 July 2000 she was admitted to Graylands Hospital. It was noted that she was pre-occupied with delusional ideas, including the arrival of aliens from Venus who will destroy the earth, and an old boyfriend being the devil. This appears the first time that she was diagnosed with schizoaffective disorder, mixed type.[18]
11. On 16 August 2000 she was admitted to Graylands Hospital. She had been referred by Swan Clinic due to deterioration in her mental state since her recent discharge. She denied any specific psychotic symptoms.[19]
12. On 28 November 2001 she was admitted to the Swan Valley Health Centre upon referral from the Morley Adult Mental Health Centre. The referral followed a call to the service by her husband, who advised that the accused had been non-compliant with her medication, stating that she had been healed by Jesus Christ and that her name was 'Vigilance'. There was evidence of formal thought disorder, religious and grandiose delusions and she appeared to be responding to unseen stimuli. The diagnosis on the discharge summary is schizoaffective disorder.[20]
13. On 8 January 2003 she was admitted to the Swan Valley Centre due to 'relapse of psychotic illness'. It was noted that she had recently been non-compliant with her medication due to religious experience, saying that God had told her to stop it.[21]
14. On 14 February 2005 she was admitted to the Swan Valley Centre due to a relapse of her schizoaffective disorder. It was noted that a few weeks back she thought of sacrificing her son by killing him with a knife. She subsequently realised that God did not want her to kill her son.[22]
15. On 15 October 2007 she was admitted to the Swan Valley Centre following a home visit by the community mental health nurse who found her to be acutely unwell. She felt that people at work were making spiritual attacks, 'spiritual warfare', and hearing voices that told her to have sex with other people. She reported voices of God telling her to fast for forty days. She had stopped taking her regular Olanzepine and would take it only if she lacked sleep. The discharge diagnosis was schizo-affective disorder.[23]
16. On 18 May 2009 she was admitted to Swan Valley Centre upon referral from Graylands Hospital following deterioration in her mental state. Thought form and content could not be established on admission, however, later on she stated that she had two missions in life - to become a Supreme Court judge and to kill the pope. It was noted that the accused had insight into her illness and was seeking help. The diagnosis on discharge was schizo-affective disorder, manic episode.[24]
17. On 14 January 2011 she was admitted to the Joondalup Mental Health Unit with command hallucinations to kill her husband. She had been sharpening knives at home that evening and assaulted her husband in transit. She was discharged the same day.[25]
18. On 14 February 2011 she was again admitted to Joondalup Health Campus due to acute psychosis with homicidal ideation towards her husband and physical aggression towards him Command hallucinations from God were noted. The principal diagnosis on discharge was schizo-affective disorder - relapse.[26]
19. On 24 February 2012 she was admitted to the Swan District Hospital due to her deteriorating mental health. She reported having been in relatively stable mental health until two months prior when she noticed deterioration in her mental state characterised by racing thoughts, sleep disturbance increased energy, poor concentration, mood swings and being very religious.[27]
20. On 23 October 2016 she was discharged from the Midland Community Mental Health Team to her GP. Her violence risk level was assessed as low. It was noted that she has a history of quickly becoming unwell.[28]

1. In the days leading up to 15 June 2017 the accused was observed to be acting strangely. Her family had considered calling Mental Health Services. On 9 June 2017 Tegan noticed that the accused was behaving similar to the way she normally does when she is sick.[29]
2. On the weekend of 10 June 2017, the accused's daughter Ashlea and her family had dinner at the accused's place. They went for a bush walk. The accused 'was going really churchy' and talked about how her granddaughter's name Aaliyah referenced to the Bible. The accused also talked about praying for her husband a few weeks earlier with church friends and his headaches getting better. The accused seemed as if she as on a high and really happy and chatty.[30]
3. On 13 June 2017 the accused and her daughter Samantha went to the chemist to pick up a prescription for Samantha. The accused commented on how her husband's headaches had stopped due to him being prayed for. The accused also mentioned that she was not taking her medication because she did not need it anymore.[31] The accused was known to sometimes 'act more Christian' when she was sick.[32]
4. Both the accused and her mother belonged to the same church group. They would attend church together every Sunday.[33] On the Sunday prior to 15 June 2017 the scripture that was discussed at church was Exodus Chapter 12, which explains the importance of blood sacrifice.[34]
5. The accused would regularly host bible studies at her house. On 13 June 2017 the accused hosted a bible study at her home, which the deceased also attended. A member of the bible study group did not observe any issues between the accused and the deceased. They seemed to interact as they normally would.[35]

1. On Thursday 15 June 2017 the accused drove her daughter Samantha to school in the morning. Samantha noticed that the accused was 'being really odd', commenting on how perfect the road was and referring to the original meaning of the word 'perfect' in the Bible meaning finished or completed.[36]
2. The deceased arrived at the accused's house at about 11:30 am to have lunch with the accused's family. The accused drove her back home at about 2 pm.[37] At 1 pm on that day the accused drove to her daughter Ashlea's house to pick up her grandchildren, and appeared worried and acting a bit 'off'.[38]
3. In the evening of 15 June 2017 the accused made dinner for her family but did not eat any herself. She told her husband that she was fasting.[39] Her husband went to bed at about 9 pm. He noticed that the accused was not sleeping but sitting on the edge of her bed staring out of the window. He thought that the accused was unwell because he knew that the accused not sleeping was usually a sign of the accused getting manic.[40]
4. At 9:30 pm that day the accused picked up her daughter Samantha and a friend. Samantha observed that the accused was unusually quiet.[41]
5. Later that night Mr Shayler observed the accused getting into her blue Mazda 3 and drive off.[42]
6. The accused drove to the deceased's place in Stratton at about midnight. The deceased was in bed but still awake. The accused put her hand on her mother's jaw and said, 'you're going straight to the Lord', and slit her mother's throat with a knife [43] she had purchased earlier that day in Midland.[44]
7. The accused collected some of the deceased's blood in a plastic container she took with her for the purpose of making the 'blood covenant.'[45] She painted the door frame and lintel with her mother's blood.[46]
8. The accused then drove to Parliament House, where she can be seen on CCTV footage stopping her car by the steps leading up to Parliament House, walking up the steps with the container of blood, putting the container down, kneeling down and making the sign of the cross, then returning to her car and driving off.[47] She left the container with the deceased's blood behind.[48]
9. The accused returned home at about 5:30 am the following morning. She told Mr Shayler that she had been driving up the Great Northern Highway, 'running away'.[49]

1. In the morning of 16 June 2017 the accused woke up Samantha at 8:15 am and drove her to school. The accused was not talking.[50]
2. Later that morning Mr Shayler was plastering with accused's fingers with a surgical cloth. The accused said that she had cut her hand with a knife. The accused was wearing make-up, which she only used to do when going out for dinner. There was sand all over the floor in the main bathroom, and upon Tegan's inquiry she was told that the accused had been doing the laundry. The accused was known to not sleep and do lots of cleaning when she was sick.[51]
3. At about 11 am the accused and Mr Shayler went for a walk. The accused told Mr Shayler that 'God told [her] to do something bad last night', but did not elaborate.[52]
4. At about 12 pm the accused and her husband went to the Dome in Warwick for lunch. Whilst there, Mr Shayler received a call from their daughter Ashlea who was concerned about the accused and asked if she should call the nurses. Mr Shayler agreed that she should, and put the accused in the car to drive her home.
5. During the drive home the accused told her husband that God had told her to cut her mother's throat that it was okay because God told her to, and that she prayed over the blood and caught it in a tray. When her husband, who did not believe her, pointed out to her that she would have left fingerprints everywhere, the accused said that God told her to use two sets of gloves from the back of her car. (The accused worked for the Multiple Sclerosis Society and needed gloves for work.) She told her husband that she had bought a knife at the gun shop in Midland. Her husband did not believe her.[53] He and his daughter Tegan drove the accused to Saint John of God Hospital in Midland. He asked his other daughter Ashlea to send police and an ambulance to the deceased's house.[54]
6. A paramedic arrived at the deceased's address at [redacted address] in Stratton just after 2:20 pm. He observed blood drops on the concrete floor at the front door, as well as a blood smeared hand print just to the left of the brown front door on the bricks. He entered through the unlocked front door and went into the bedroom to the right. The deceased was lying on her back on the bed, with her face facing the door. The paramedic called police.[55]
7. The deceased was wearing a C-PAP mask on her face, which is used for sleep apnoea. She was covered in blood and there was blood all over the bed. She had a large laceration across the front of her neck, which looked like it ran across the whole front of the neck.[56]

1. The post mortem report confirms that the cause of death was incised wound to the neck. The neck injury is described as 'severe', with division of central structures of the neck with division of the upper aspect of the thyroid cartilage (portion of the larynx). Vascular injury was evident on the left side of the neck.
2. The neck wound extended from side-to-side.
3. Cuts were evident to the thumb and two fingers of the left hand.

1. On 18 June 2017, whilst on remand at the Melaleuca Remand and Reintegration Facility, the accused was observed to do a 'backflip' onto the hard concrete floor in an attempt to kill herself. She was delusional and talking about Satan and Armageddon. She needed to be restrained as she was considered to be danger to herself and others. The following day she told the nurse that she was in prison because God had made her kill her mother.[58]
2. On 20 June 2017 the accused was referred to the Frankland Centre on a Hospital Order. On 25 July 2017 she underwent a psychiatric assessment by Dr Wojnarowska. It was noted that the accused's mental state had improved considerably on medication, and that her mood was stable. She continued to hear the voice of God, but not Satan. She was engaging well with the clinical psychologist. She continued to require inpatient psychiatric treatment.[59]

1. The accused made an admission pursuant to s 32 of the Evidence Act 1906 (WA) that on or about 15 June 2017 at Stratton she killed the deceased by slitting her neck with a knife.[60]

1. One psychiatrist was called at trial to give oral evidence, being Dr Steven Patchett. The written report of Dr Patchett was tendered in evidence as part of the State's brief of evidence.[61] The defence case comprised the tendering of a report from Dr Brett, Consultant Psychiatrist, dated 13 October 2017.[62]
2. Dr Patchett outlined the documented history of serious mental illness which has affected the accused episodically over the past 31 years. Dr Patchett's outline was in accord with the agreed facts and the medical history file received in evidence.
3. Dr Patchett confirmed that the accused has a well-established background diagnosis of schizoaffective disorder. The accused's psychiatric history includes psychotic episodes and that on a number of occasions the accused has reported auditory hallucinations, namely voices from God.[63]
4. Dr Patchett gave evidence that schizoaffective disorders are considered to be episodic disorders in which affective (mood) and schizophrenic symptoms are prominent and coexist. Dr Patchett referred to the ICD‑10, stating that the diagnosis of schizoaffective disorder should be made only when both definite schizophrenic and definite affective symptoms are prominent simultaneously, or within a few days of each other, within the same episode of illness, and when, as a consequence of this, the episode of illness does not meet the criteria for either schizophrenia or a manic or depressive episode.[64]
5. Dr Patchett stated that there was clear evidence that the accused was in a highly disturbed acute psychotic state of mind during the weeks and days surrounding 15 June 2017 and that she had at the relevant time a mental impairment.[65]
6. Dr Patchett expressed the opinion that the accused understood what she was doing, having described in clear and unequivocal terms that she acted out a plan to kill her mother and purchased a knife with the expressed intention of doing so. Dr Patchett stated that in his opinion the accused understood that the act of slitting her mother's throat would result in harm or death to her mother.[66]
7. Dr Patchett stated that it was debatable whether the accused lacked the capacity to control her actions in going to her mother's house armed with a knife to stab her mother. Dr Patchett observed that the accused described a powerful compulsion to act upon God's instructions and that she was unable to resist that compulsion.[67]
8. In conclusion, Dr Patchett stated that there is compelling evidence from a psychiatric point of view that the accused 'was deprived of the capacity to know that she ought not to do the act of wounding her mother with a knife which resulted in her mother's death. She alternatively believed it was the right thing to do, that she was required to do an act that God wanted her to do and had been ordained by God.'[68] Dr Patchett stated that the accused held the view that what she did was the 'right thing to do' because 'it was what God wanted.'[69]
9. During his examination at trial, Dr Patchett confirmed that in his opinion the accused had at the relevant time a mental impairment, namely schizoaffective disorder, which deprived her of the capacity to know that she ought not to do the act, being the act of killing her mother.[70]
10. Dr Brett stated that he had no doubt that the accused has a mental impairment as defined in the Criminal Code, namely a mental illness, being schizoaffective disorder. The differential diagnosis is bipolar affective disorder with psychotic features. The diagnosis was derived from the clinical interviews and reviewing collateral information including the medical history of the accused and the statements of witnesses.
11. Dr Brett determined that at the time of the offending the accused was not deprived of the capacity to understand what she was doing. That is, the accused was aware of the physical act that she was doing and that the reason for doing the physical act was based on the accused's psychotic disorder.[71]
12. Dr Brett stated that at the time of the alleged offence the accused had a reduced capacity to control her actions. However, Dr Brett concluded that he would not rely upon on this limb of s 27 of the Criminal Code.[72]
13. Dr Brett determined that at the time, the accused's mental impairment deprived her of the capacity to know that she ought not to do the act. Rather, the accused believed what she was doing was right for the reason that she held the belief that she was acting on God's instructions and that to appease God and prevent a catastrophe she had to perform an Old Testament rite.[73] The accused believed that Armageddon was going to occur and a Blood Covenant may prevent this occurring.[74] The act of killing the deceased, being the infliction of a wound to the deceased's throat by the use of a knife, was based on delusional beliefs.

1. The State tendered a file of medical records in respect of the accused.[75] The records serve to confirm the history of mental illness that has afflicted the accused and which was summarised by Dr Patchett and Dr Brett.

1. In a trial by judge alone the judge is required to state the principles of law that have been applied in coming to a verdict.[76] The fundamental principles in any criminal trial are the presumption of innocence and that the prosecution bears the onus of proving each of the elements of the offence charged beyond a reasonable doubt. If the State does not prove each element beyond reasonable doubt then the charge is not proven and the verdict must be one of not guilty.
2. To the extent that it is necessary to draw inferences as to essential facts from the evidence, it is important to consider whether there are possible alternatives consistent with innocence. It is not possible to draw an inference adverse to an accused person unless it is the only reasonable inference. This is an aspect of the requirement that a charge be proved beyond a reasonable doubt.
3. The State relied upon expert witness Dr Patchett and the defence relied upon the report prepared by Dr Brett. I approach my assessment of Dr Patchett and Dr Brett as I would for any other witness. I am not bound to accept and act upon any witness's evidence, including an expert witness's evidence. I may reject expert evidence if there is other evidence to support my findings or if I conclude that the expert's evidence is unreliable.
4. In Hone v The State of Western Australia[77] the Court of Appeal considered the proper approach to expert evidence which is not contradicted at trial. Both Steytler P and Miller JA stated that whilst neither a jury nor a judge sitting alone are bound to accept and act upon expert evidence, where there is no evidence or circumstance to contradict that evidence, a verdict cannot be given contrary to that evidence.[78]
5. In assessing the evidence and reaching a verdict it is important to guard against any feelings or prejudicial sympathy. Such feelings must be put aside and the question of guilt determined on an objective and dispassionate assessment of the evidence.
6. The accused did not give evidence. It was the accused's right not to do so and no adverse inference may be drawn against the accused in respect of her election not to give evidence.

1. The elements of the offence of murder in respect of this trial is that the accused killed the deceased, the killing was unlawful and the accused did so with either an intention to kill or an intention to cause an injury that was or was likely to be life endangering.
2. It is unlawful to kill any person unless the killing is authorised, justified or excused by the law.[79] A person who causes the death of another, either directly or indirectly, is deemed to have killed that other person.[80] In this case the accused made a formal admission that she caused the death of her mother by slitting her throat with a knife. I am satisfied beyond a reasonable doubt that she did kill the deceased.
3. Whether a killing constitutes the offence of murder depends upon the intention of the accused at the relevant time. The accused has raised the defence of insanity. In circumstances where that defence has been raised it is necessary to consider whether the accused is criminally responsible for the killing having regard to s 27 of the Criminal Code. It is only if that question is answered adversely to the accused that the next question arises, namely, what was her intention at the relevant time. The issue of insanity must, therefore, be determined before the issue of intent.[81]
4. In the event that the insanity defence is not established, it would then be necessary to consider whether the prosecution has proved that the accused had the intention to kill or cause a life endangering injury to her mother at the time of her killing.

1. Every person is presumed to be of sound mind, and to have been of sound mind at any time which is in issue, until the contrary is proved.[82] The burden is on the accused to prove that she was not of sound mind at the time she did the act that is alleged to constitute the offence. The accused must prove that she was not of sound mind on the balance of probabilities.[83]
2. Section 27 of the Criminal Code provides as follows:

(1) A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.

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

1. Accordingly, s 27 of the Criminal Code contains two bases for relieving a person of criminal responsibility where there is a mental impairment. In this trial s 27(1) is applicable, with the relevant incapacity being that the accused did not have the capacity to know that she ought not to do the act which caused the death of her mother.
2. The term mental impairment is defined by s 1(1) of the Criminal Code to mean intellectual disability, mental illness, brain damage or senility. Mental illness is defined to mean an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.[84]
3. Whilst what constitutes mental illness is a question of law, the issue of whether or not the facts disclose a state of mental illness is a question of fact.[85]
4. In respect of the meaning to be given to 'disease of the mind' I respectfully adopt the outline of relevant legal principles stated by Jenkins J in The State of Western Australia v Herbert[86]:

The definition of 'mental illness' reflects some of the comments made by King CJ in Radford (1985) 20 A Crim R 388, 396 about the meaning of the expression 'disease of the mind' which is used in the common law of insanity. The then Chief Justice of the Supreme Court of South Australia said:

(1) 'disease of the mind' is synonymous with 'mental illness';

(2) a temporary disorder or disturbance of an otherwise healthy mind caused by external factors is not properly regarded as a disease of the mind;

(3) major mental illness or psychoses such as schizophrenia are clearly diseases of the mind as are physical disease, such as psychomotor epilepsy and arteriosclerosis, when they affect the soundness of the mental faculties;

(4) disease of the mind is to be distinguished from 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self‑control and impulsiveness'; and

(5) in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called 'defect of reason' in the M'Naughten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli'.

In R v Falconer [1990] HCA 49; (1990) 171 CLR 30, the High Court generally approved of King CJ's comments even in the context of the then Criminal Code provisions.

When Falconer was decided, the Code s 27 was differently worded. Section 27 was amended and the definition of mental impairment was inserted after Falconer was delivered. The subsequent amendments to the Code are consistent with King CJ's statement of principles in Radford, although the Code definition of 'mental impairment' is broader than that of 'disease of the mind' which was considered by King CJ.

Capacity to know that one ought not to do the act

1. The accused contends that her mental illness deprived her of the capacity to know that she ought not to do the acts by which she committed the offence of murder. With respect to the meaning of the term 'capacity to know that he ought not to do the act', I refer to the High Court in Stapleton v The Queen:[87]

For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. See R v Davis (1881) 14 Cox CC 563, Stephen J, R v Kay (1904) 68 JP Jo 376, Stephen J. In R v Porter (1933) 55 CLR 1828 at pp 189, 190, this was expressed by Dixon J as follows:

'The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong (footnotes omitted).'

1. In Evans v The State of Western Australia[88] the Court of Appeal considered the application of the common law principles to s 27 of the Criminal Code. McLure P stated that there was no suggestion that there was any material distinction between the common law test as stated by the High Court in Stapleton v The Queen and s 27 of the Criminal Code. McLure P considered what is meant by the term 'know' in s 27 of the Criminal Code. McLure P observed that whether an act is right or wrong is determined by reference to an objective standard, and that the question is whether the accused had a complete incapacity to reason as to what was, by that objective standard, right or wrong.[89]

1. In this case the State does not submit that I should make any findings contrary to the expert evidence of Dr Patchett and Dr Brett. That is, the State accepts that the court should be satisfied on the balance of probabilities that the accused is not guilty on the basis of unsoundness of mind. There is no evidence or circumstances that contradicts the expert evidence regarding the lack of mental capacity in this case.
2. Both psychiatrists outline the accused's previous psychiatric history which accords with the medical records produced to court. That psychiatric history is succinctly outlined in the agreed statement of facts. The accused has a long and significant history with mental health services. The history discloses diagnoses including manic depressive illness/psychosis, bipolar disorder and with the consensus diagnosis being schizoaffective disorder.
3. I accept the evidence of Dr Patchett and Dr Brett that at the time of the killing the accused was acutely psychotic. Both psychiatrists state that the accused had a mental impairment, namely schizoaffective disorder. Further, both psychiatrists determined that the mental impairment deprived the accused of the capacity to know that she ought not to do the act. The accused inflicted the injury to the neck of her mother with a knife without any apparent reason other than a delusional belief that God had instructed her to do that act and that she felt compelled to act on his instructions.
4. I am satisfied, on the balance of probabilities, that the accused was deprived of the capacity to know what she was doing was wrong. That is, the accused lacked the capacity to know that she ought not to kill her mother by the act of inflicting the knife wound to her mother's throat. Therefore, the requirements of s 27 of the Criminal Code have been satisfied. The accused is not criminally responsible for her actions for the reason of unsoundness of mind.

1. I find the accused not guilty of the count on the indictment on the ground of unsoundness of mind. Accordingly, the accused will be the subject of a custody order pursuant to s 21 of the Criminal Law (Mentally Impaired Accused) Act.

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

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

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

[3] Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 24.

[4] Exhibit 2 - Amended statement of material facts dated 8 March 2019.

[5] Exhibit 3 - State's brief of evidence.

[6] Report of Dr Patchett dated 4 August 2018, 12.

[8] Fremantle Hospital Records Viper Action 45-14, E1877, E1879.

[9] Graylands Hospital Records Viper Action 45-1, E1361, E1369.

[10] Graylands Hospital Records Viper Action 45-1, E1377.

[11] Fremantle Hospital Records Viper Action 45-14, E1877.

[12] Fremantle Hospital Records Viper Action 45-14, E1876.

[13] Graylands Hospital Records Viper Action 45-1, E1444.

[14] Graylands Hospital Records Viper Action 45-1, E1527-1529.

[15] Graylands Hospital Records Viper Action 45-1, E1586.

[16] Graylands Hospital Records Viper Action 45-1, E1621.

[17] Graylands Hospital Records Viper Action 45-1, E1666.

[18] Graylands Hospital Records Viper Action 45-1, E1719, 1724.

[19] Graylands Hospital Records Viper Action 45-1, E1772.

[20] Bentley Health Services Hospital Records Viper Action 45-23, E88.

[21] Bentley Health Service Hospital Records Viper Action 45-23, E401, 407.

[22] Bentley Health Services Hospital Records Viper Action 45-24, interim discharge letter and integrated progress notes 14//02/2005, E574.

[23] Bentley Health Services Hospital Records Viper Action 45-24, E709.

[24] Bentley Health Services Hospital records Viper Action 45-24, E450, 451.

[25] SMH Hospital Records Viper Action 45-25; Joondalup Mental Health Unit Nursing Summary E1267.

[26] SMH Hospital Records Viper Action 45-24, E1266.

[27] SMH Hospital Records Viper Action 45-25, E1200.

[28] SMH Hospital Records Viper Action 45-25, E1006.

[29] Statement of Tegan Shayler, [21].

[30] Statement of Ashlea Bowler, [8] - [14].

[31] Statement of Samantha Shayler, [36] - [50].

[32] Statement of Tegan Shayler, [47].

[33] Statement of Tegan Shayler, [48].

[34] Statement of Lorraine Friend, [17], [18].

[35] Statement of Lorraine Friend, [4] - [10].

[36] Statement of Samantha Shayler, [11] - [14].

[37] Statement of Mark Shayler, [130] - [135].

[38] Statement of Ashlea Bowler, [15] - [20].

[40] Statement of Mark Shayler, [31].

[41] Statement of Samantha Shayler, [20] - [22].

[42] Statement of Mark Shayler, [40].

[43] See: Photograph, Exhibit 3 - State's brief of evidence, 170.

[44] Report of Dr Patchett dated 4 August 2018, 5.

[45] Report of Dr Patchett dated 4 August 2018, 5.

[46] Exhibit 6 - Report of Dr Brett dated 13 October 2017, [10]; Stillshot from footage at [redacted address] in Stratton on 17 June 2017 PB309.

[47] See: Stillshots, Exhibit 3 - State's brief of evidence, 249 - 258.

[48] See: Photographs, Exhibit 3 - State's brief of evidence, 226 - 235.

[49] Statement of Mark Shayler, [57].

[50] Statement of Samantha Shayler, [23] - [32].

[51] Statement of Tegan Shayler, [54] - [62].

[52] Statement of Mark Shayler, [68] - [72].

[53] Statement of Mark Shayler, [79] - [95].

[54] Statement of Mark Shayler, [98] - [124].

[55] Statement of Matthew Doyle, [1] - [35].

[56] Statement of Lee Mack, [27] - [34].

[57] Exhibit 3 - State's brief of evidence, 99 - 118.

[58] Email Susan Roberts dated 20 June 2017, E1.

[59] Report Dr Gosia Wojnarowska dated 25/07/17, E2 - E6.

[60] Exhibit 1 - Formal admission by Ms Shayler pursuant to s 32 of the Evidence Act 1906 (WA).

[61] Report of Dr Patchett dated 4 August 2018.

[62] Exhibit 6 - Report of Dr Brett dated 13 October 2017.

[64] Report of Dr Patchett dated 4 August 2018, 12.

[65] Report of Dr Patchett dated 4 August 2018, 13.

[66] Report of Dr Patchett dated 4 August 2018, 13.

[67] Report of Dr Patchett dated 4 August 2018, 13.

[68] Report of Dr Patchett dated 4 August 2018, 13.

[71] Exhibit 6 - Report of Dr Brett dated 13 October 2017, 10.

[72] Exhibit 6 - Report of Dr Brett dated 13 October 2017, 10.

[73] Exhibit 6 - Report of Dr Brett dated 13 October 2017, 14.

[74] Exhibit 6 - Report of Dr Brett dated 13 October 2017, 14.

[75] Exhibit 4 - Two volumes of hospital records for Ms Shayler.

[76] Criminal Procedure Act, s 120(2).

[77] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138.

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

[81] Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 [25] (Kennedy J).

[83] R v Porter [1933] HCA 1; (1933) 55 CLR 182, 184.

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

[86] The State of Western Australia v Herbert [2017] WASC 101 [48] - [50].

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

[88] Evans v The State of Western Australia [2010] WASCA 34 [30] - [31].

[89] Evans v The State of Western Australia [2010] WASCA 34 [31].