THE STATE OF WESTERN AUSTRALIA -v- STEFANSKI [2015] WASC 371 (2 October 2015)

2 On such an application the court may inform itself in any way it thinks fit. An order may be made if the court considers it is in the interests of justice to do so. The relevant principles to be applied on such an application were set out recently in LFG v The State of Western Australia [2015] WASCA 88 [307] [338] (Buss JA, with whom Mazza JA agreed). In a separate judgment, dissenting in the outcome, Martin CJ also identified the relevant principles at [113] [138]. There does not appear to me to be a great deal of difference between the principles identified by Buss JA and those identified by Martin CJ, although their Honours differed in their application of the principles to the circumstances of that case. I will proceed on the basis of the principles outlined by Buss JA.

3 What is clear from LFG and earlier authorities is that the party who seeks the order for trial by judge alone has the onus of persuading the court that it is in the interests of justice to make the order. The default position, if the court is not satisfied that it is in the interests of justice to make the order, is that there will be a jury trial. The factors to be taken into account are set out in the judgment of Buss JA. They are not exhaustive. Essentially the term 'interests of justice' is a broad term and should not be fettered in its construction.

4 Section 118(5) and (6) set out factors which the legislature has identified as either favouring the making of an order (s 118(5)) or which militate against the making of an order (s 118(6)). In this instance the only factor of relevance is under s 118(5). I will come, in due course, to the submissions that have been made on behalf of the accused to identify what it is that the accused relies upon as justifying the making of the order.

5 The decision on an application of this kind requires attention to be given to the facts of the case and the likely issues at trial. I will turn briefly, therefore, to the facts alleged by the State and the issues that most likely will require determination at the trial, as identified by the parties.

6 The facts alleged by the State are that sometime between 1.00 pm and 1.30 pm on Saturday, 6 September 2014 the accused was at home in Woodvale with his parents. He had been at work that morning. There will be evidence from his work colleagues that, before he left work to return home that afternoon, he assaulted a work colleague. Aspects of that evidence support the conclusion that he was mentally unwell. As will appear below, two psychiatrists who later examined the accused have taken the evidence into account as indicating that the accused was suffering from a psychotic episode before he returned home to his parents' home in Woodvale that day.

7 Early in the afternoon that day, the accused and his father were in the rear yard of the family home when they began to argue. At some point in time during the argument the accused began to assault his father with his fists and then also with his feet, kicking him. He also strangled his father. The injuries that were suffered by the accused's father during the assault resulted in his death. The other victim, Mr Butler, who was a neighbour, came to the premises, having become aware of there being an altercation at the house. He, too, was attacked by the accused by being punched. He died from the resulting injuries.

8 The accused was arrested by police soon after. At the request, respectively, of the State and the defence, the accused was subsequently examined by two psychiatrists, Dr Adam Brett and Dr Mark Hall. He told them that, at the time of his attack on each victim, he was hearing voices. He said he heard his father tell him that he (the accused) needed to assault him (his father) or to kill him. Similarly, he said he believed Mr Butler had given him instructions of a similar kind (to do the same to Mr Butler). It is not necessary for me to go into the details of the circumstances (including a system of delusional beliefs) that Mr Stefanski explained to the psychiatrists had affected his behaviour over a period of time leading up to 6 September 2014 and which provided the context for the delusions he suffered at the time he killed the victims.

9 Counsel for the accused has indicated that the accused will make formal admissions at the trial under s 32 of the Evidence Act 1906 (WA) that, in respect of each victim, the accused killed the victim and that he intended to cause the victim's death. The defence case will be that the accused was not criminally responsible in each case on account of unsoundness of mind: s 27 of the Criminal Code.

10 There has been an exchange of psychiatric reports between the parties.

11 Dr Brett provided a report dated 19 June 2015, which was commissioned by the State. Having spoken with the accused and having had regard to the statements of witnesses in the prosecution brief and medical records concerning Mr Stefanski immediately after his arrest, Dr Brett formed the view that Mr Stefanski's mental state had been deteriorating in the weeks before the alleged offences. He states in his report that this appeared to be chronologically related to stress regarding allegations made against him and increasing marijuana use. He formed the opinion that Mr Stefanski has a mental impairment as defined in the Criminal Code. He says that he would diagnose the mental impairment as a first episode of psychosis. This is not a definitive diagnosis, but it is the term used for describing presentations similar to those of the accused. He goes on to say in the report that time will tell what Mr Stefanski's definitive diagnosis is. The differential diagnosis is likely to be between a drug-induced psychosis and schizophrenia. Dr Brett goes on to say that Mr Stefanski was using significant amounts of marijuana in the weeks and days before the offence. He says that this could have uncovered an underlying mental disorder such as schizophrenia or could have induced a psychotic disorder by itself. He says that clinically the end result is the same: the accused became psychotic. He believes that it is an issue for the court whether the accused's mental health issues with associated marijuana use are sufficient to fulfil the criteria for mental impairment. Significantly, he says that he does not believe that Mr Stefanski would have become 'this floridly psychotic' if he had not used excessive amounts of marijuana. He says he believes the excessive use of marijuana precipitated the psychotic episode. He concludes that the accused's mental impairment deprived him of the capacity to control his actions and the capacity to understand that he ought not to do the act in each case. He does not believe that it deprived him of the capacity to understand what he was doing.

12 Dr Hall provided a report dated 12 November 2014 at the request of the accused's legal representatives. In that report, he comes to views that, in my opinion, are not very different to those of Dr Brett, but I will set out in a little detail what he says. Dr Hall says that the principal diagnosis he arrived at is 'psychotic disorder not otherwise specified'. He provides two differential diagnoses of schizophrenia or cannabis induced psychotic disorder. He expresses the view that at the time of the alleged offending Mr Stefanski was floridly psychotic and had been so for at least three months. He goes on to say, at par 49 of his report, that Mr Stefanski's psychosis arose against a background of cannabis dependence, as well as a number of years of gradual decline in occupational and social functioning.

13 Dr Hall says that the accused's strong family history of psychotic illness confers genetic vulnerability to developing a mental illness such as schizophrenia. Dr Hall goes on to say at par 51 of his report that:

Based on the above, it is likely, in my opinion, that Mr Stefanski suffers from schizophrenia. However, the diagnosis of 'psychotic disorder not otherwise specified' is preferred at this juncture given that a drug (cannabis) induced psychotic disorder should be considered a differential diagnosis on account of his history of cannabis use and the significant improvement in his symptoms since ceasing drug use (consequent to his arrest) and despite having had no antipsychotic medication since his transfer from Frankland Centre to Hakea Prison just six days after the alleged offending. (original emphasis)

It should also be noted that 'functional' decline is not unusual for the level of drug use and dependence exhibited by Mr Stefanski in recent years.

[I]n the case of either diagnosis Mr Stefanski's mental condition would be considered to be a mental illness in that it was due to an underlying pathological infirmity of mind, albeit one that may have been induced by cannabis use, as opposed to simply a state of intoxication. (original emphasis)

14 As I said in discussion with counsel during submissions, it seems to me that in that last statement and later Dr Hall is expressing, in effect, an inadmissible view about the legal effect of the provisions of s 27 and s 28 of the Criminal Code.

15 Dr Hall comes to the same view as Dr Brett about the accused's loss of capacity, that is, the accused was not deprived of the capacity to understand what he was doing, but was deprived of the capacity to control his actions and to know that he ought not to do the act in each case.

16 Having outlined what each of the psychiatrists has said, and on the assumption that the evidence they would give at trial would be in accordance with those opinions expressed in their reports, it does appear to me that there is little difference, if any, between their opinions about what caused the onset of the accused's psychotic symptoms that resulted in his actions and the deprivation of his capacities.

17 The references in those reports to the accused's use of cannabis are based in part on admissions made by the accused to the psychiatrist in each case. In the case of Dr Brett, he has also relied on the statements of the witnesses Emma Kate Tapsell and Lawrence Thompson.

18 It is fair to say that the evidence of Ms Tapsell, as contained in her statement, is the most significant in terms of identifying the degree of cannabis use by the accused the day before and on the day of the alleged offending. She describes a substantial amount of cannabis use by the accused on the night before and then in the early afternoon before the events giving rise to the charges.

19 Counsel for the State indicated at the hearing of the application that it would appear Dr Hall may not have had access to the statement of Ms Tapsell, but it seems to me that, for the purpose of determining this application, it does not really matter on what basis Dr Hall has come to his views about the accused's drug use. He has accepted that the accused used cannabis and that the onset of psychotic symptoms may well have been induced by the cannabis.

20 The issue that each of the parties says needs to be resolved at trial has to be considered against the background of the allegations that are made against the accused and the evidence that is intended to be adduced from each of the psychiatrists. There is potentially another matter that may need to be taken into account. At the hearing of the application, counsel for the accused indicated that an expert report is being sought from a clinical pharmacologist. It may be a matter of weeks before that is available. As I understand what has been put on behalf of the accused, the relevance of that report is to indicate the potential effect on the accused's functioning of the level of tetrahydrocannabinol (from the cannabis he ingested) in the accused's body, but it would seem that the results that are going to be relied upon may not be proximate to the time when the offences are alleged to have been committed. In any event, counsel for the accused accepts that the opinion that may be expressed by the clinical pharmacologist could not go so far as to determine the question of whether the cannabis that had been ingested by the accused affected his mind in such a way as to deprive him of one of the relevant capacities, whether alone or, as Dr Brett put it, by uncovering a preexisting mental impairment and resulting in the psychotic episode. In any event, while the introduction of evidence concerning toxicology may complicate the issues at trial, I do not consider that it would do so to an extent that affects the decision on this application.

21 As I have said already, the factors that are relevant to be taken into account by a judge considering an application under s 118 of the Criminal Procedure Act have been set out in LFG and in other authorities before that. What is relied upon specifically in this case on behalf of the accused is that the evidence concerning his state of mind at the relevant time is likely to be complex and unreasonably burdensome to a jury as contemplated by s 118(5)(a) of the Criminal Procedure Act. It is submitted on his behalf that this is a factor which weighs heavily in support of the court making the order sought by the accused. It is submitted further on behalf of the accused that whilst intoxication is a factual issue to be determined at the trial, it is not an issue which requires the application of objective community standards such as reasonableness, negligence, indecency, obscenity or dangerousness as contemplated by s 118(6) of the Criminal Procedure Act. In any event, the State does not suggest that the resolution of factual issues in this case will involve the application of any such standards, so I put to one side the factors in s 118(6).

22 What has been raised as a potential complicating factor in this case (in respect of an assessment of the accused's state of mind at the relevant time) is the interaction of s 28(2) of the Criminal Code with s 27, and that is because there is said to be an issue as to whether the deprivation of the accused's capacity either to control his actions or to know that he ought not to do the acts was the result of an underlying mental impairment (in this case an underlying mental illness such as schizophrenia) or as a result of the effect of ingestion of cannabis by the accused upon his mind either alone or by its interaction with a preexisting mental impairment.

23 Further, it is said on behalf of the accused that 'the examination of differential diagnoses by two psychiatrists will need to be determined' and that a judge is more experienced and better able to determine such a factual issue than a jury made up of lay persons. I take this to mean that the reference by the psychiatrists to differential diagnoses adds a layer of complexity that would not be present if there was a single definitive diagnosis, and a judge experienced in dealing with such matters is better placed to deal with the complexity.

24 It was not clear from the accused's written submissions what dispute, if any, there would be in relation to the evidence to be given by the witnesses Tapsell and Thompson, and perhaps others, concerning the accused's use of cannabis. Counsel for the accused indicated during the course of argument that there is unlikely to be any challenge to the evidence of those witnesses; the real issue will be what conclusions are to be drawn about the accused's state of intoxication from the observations they made of his use of cannabis. The reference to intoxication is in the context of the use of that word in s 28(2).

25 The accused finally relies on a submission that it is in the interests of justice in this case that he be provided with detailed reasons from the finder of fact as to what psychiatric diagnosis was accepted and why. This would only be possible in a trial by judge alone.

26 The State had indicated at an earlier stage that it may wish to have resolved before trial the question of whether there needs to be a causal connection between intoxication as referred to in s 28(2) and any mental impairment or deprivation of capacity as referred to in s 27 before the accused would be prevented from relying on s 27. The State subsequently informed the court that it no longer wished to have that issue determined before trial, so it will be a matter that will be raised with, and will require the determination of, the trial judge.

27 Against that background it is necessary then to consider whether the issues as they will need to be resolved at trial mean that it is in the interests of justice to make an order for trial by judge alone.

28 In Coates v The State of Western Australia [2009] WASCA 142 the Court of Appeal considered the ambit of the words 'in the interests of justice' in s 118 of the Criminal Procedure Act. Buss JA (with whom Martin CJ & Owen JA agreed) said:

The expression 'in the interests of justice' in s 118(4) has a broad connotation. It will be 'in the interests of justice' to order a trial before a judge alone without a jury if that is necessary to ensure the accused receives a fair trial according to law. It will be necessary if there is a real and substantial (as distinct from a remote) doubt as to whether the accused will receive a fair trial according to law before a judge sitting with a jury. These observations on the expression 'in the interests of justice' in s 118(4) are not intended to be exhaustive. There may be other circumstances in which it will be 'in the interests of justice' to order a trial before a judge alone without a jury [104].

29 Those observations have been reaffirmed in LFG, to which I have referred previously.

30 In 2007, in TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183, McKechnie J said:

Although there is a range of cases that have been submitted for trial by judge alone, some strands appear. A trial where the mental capacity of the accused is in question, especially where there is little dispute as to the facts, is often the subject of trial by judge alone [6].

31 That strand has continued to appear in decisions since then and has been identified in cases such as Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138, and, indeed, in LFG. It is thought that one of the reasons why a trial by judge alone may be more appropriate in the case where the substantial issue is whether the accused was of unsound mind, and whether he acted at a time when he was deprived of one of the relevant mental capacities, is that there is a danger of a jury rejecting the reasoning of an expert (psychiatric) witness by reference to the reasoning of lay people, who use common sense based on their experience of sane, rather than mentally ill, people. The latter observation, made by Steytler P in Hone [7] in the context of considering the approach that should be taken by a judge or jury in cases concerning uncontradicted psychiatric evidence, has been referred to since as a basis upon which it may be appropriate to make an order for trial by judge alone where the substantial issue in a case is whether the accused was of unsound mind and it will be necessary to assess psychiatric evidence.

32 A case which is not dissimilar to the present case is The State of Western Australia v Brown [No 2] [2013] WASC 280 (Jenkins J). It is fair to say that the complexity of the factual issues to be resolved in that case was greater than in the present case. However, as in this case, the essential theme was the interaction of the accused's substance abuse with mental impairment in the context of an insanity defence. Jenkins J said:

The complexity of an insanity case borne from a combination of the accused's multi-drug and substance abuse, expert opinion regarding the interactions between those drugs and substances, differing expert psychiatric opinions and an involved factual background may also mean that it is in the interests of justice for a case to be tried by judge alone. This is because a judge is more experienced than lay persons in deciding cases requiring the application of legal principles, which in themselves are far from straightforward, to disputed and complex expert evidence against a background of other factual circumstances [29].

33 Her Honour was of the view that the case she was considering was such a case. As I have said, the factual circumstances of that case were somewhat more complex than have been identified to me in this case, but nevertheless, there are similarities.

34 The discretion of the court in determining an application of this kind is not fettered by what other judges have decided on applications for trial by judge alone. However, in my opinion, it is desirable, and indeed in the interests of justice, that there be consistency of approach in similar cases, unless there is a significant distinguishing feature that, despite the similarities, militates against a trial by judge alone.

35 In this case the State does not put a positive argument against the application that is made on behalf of the accused. Indeed, counsel for the State properly conceded that given the legal issue that has yet to be determined in relation to the interaction of s 28(2) and s 27 of the Criminal Code, and the potential for some additional evidence in relation to toxicology concerning the effect of the cannabis on the accused, which will need to be considered in conjunction with the psychiatric evidence, then, irrespective of whether or not there is a difference between the psychiatrists in their opinions, it may well be in the interests of justice to order a trial by judge alone.

36 As I mentioned earlier, it has been argued on behalf of the accused that, having regard to the complexity of the issues in this case, it is in the interests of justice that he be provided with detailed reasons for the verdict, whatever it may be. Opposing views have been expressed about the relevance on an application of this kind of the fact that a judge sitting without a jury is required to give reasons: Arthurs v The State of Western Australia [2007] WASC 182 [76] (Martin CJ); TVM [32] (McKechnie J). In The State of Western Australia v Rayney [2011] WASC 326 [29], Commissioner Sleight sought to reconcile those views and concluded that while the giving of reasons may not generally be relevant, it may be a relevant consideration where the complexity or technical nature of the evidence is such that an accused wishes to obtain reasons to ensure that whatever verdict is reached is based upon a correct comprehension of the evidence.

37 The finder of facts in this case will need to make findings about which particular view or views to accept in relation to the psychiatric evidence, the effect that the use of cannabis may have had on the accused's state of mind (intoxication), and whether the provisions of s 27 have any application in light of any findings made about intoxication. I am satisfied that the accused's desire to have the reasons for the determination of those matters exposed for analysis, whatever the outcome, is a relevant consideration that weighs in favour of making the order for a trial by judge alone in the circumstances of this case.

38 Having regard to the matters identified in [34] [35] and [37] above, I have concluded that it is in the interests of justice in this case to order that there be a trial by judge alone, and I so order.