THE STATE OF WESTERN AUSTRALIA -v- THOMAS [No 2] [2024] WASC 403 (31 October 2024)

1. The State accepted that there was sufficient evidence before me to be satisfied of the above matters.
2. For the following reasons, I am satisfied on the balance of probabilities that it is more likely than not that Mr Thomas was suffering from a mental impairment at the time he killed Edward Thomas. I am further satisfied that the mental impairment deprived Mr Thomas of the capacity to know that he ought not to do the act which caused the death of Edward Thomas. Therefore, I find that Mr Thomas cannot be considered criminally responsible for his actions and must be found not guilty on account of mental impairment pursuant to s 27(1) of the Criminal Code.
3. For the following reasons, I am also of the view that it is appropriate that I make a custody order in respect of Mr Thomas, with a limiting term of life imprisonment pursuant to s 46 and s 50 of the Criminal Law (Mental Impairment) Act 2023 (WA). That limiting term is to commence on 12 July 2020.

1. At trial, the State relied on and tendered a Statement of Case. Mr Thomas, through his counsel, accepted the facts as contained in the Statement of Case.[2]
2. The State also relied on and tendered the electronic record of interview between officers of the Western Australian Police and Mr Thomas on 13 July 2020. The electronic record of interview was played in court and the transcript was also tendered.[3] By consent, the State also tendered a report prepared by Dr Adam Brett dated 5 November 2020.[4]
3. Mr Thomas tendered his statement of formal admissions dated 18 October 2024[5] and an Agreed Timeline of Events.[6] Mr Thomas called Dr Alexander van Hattem and tendered his report dated 28 July 2023.[7]
4. Section 93 of the CPA relevantly provides:

(1) If an accused pleads not guilty to a charge on account of mental impairment 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 mental impairment; 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 mental impairment; 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.

14 I am satisfied that it is in the interests of justice to decide the issues arising in this trial by receiving the Statement of Case, the Agreed Timeline of Events and the tendered documents referred to above as establishing the factual circumstances relevant to the determination of the issues in this trial. I am so satisfied given the formal admissions made by Mr Thomas; Mr Thomas's agreement to the State's Statement of Case; Mr Thomas's consent to the tender of the medical report of Dr Brett; the State's consent to proceed under s 93 of the CPA and the nature of the evidence in support of Mr Thomas's defence.

1. The State's Statement of Case provides as follows: [8]
   1. The accused Mr Declan Sean Thomas is charged on indictment with 1 count alleging that on the 12th July 2020 at Mandurah, he murdered Edward Charles Thomas. At that time Mr Thomas, then aged 31, was the son of the deceased man, Mr Edward Charles Thomas, then aged 71. The deceased man was a fragile man with a pre-existing medical condition.

Background and Context to the Circumstances Attending the Commission of the Alleged Offence

1. Mr Declan Sean Thomas was born of a relationship between the deceased man, Mr Edward Charles Thomas and Ms Marianne Thomas. The accused was born in Derby on the 6th December 1988.
2. The accused with his sister Natasha attended Capel Primary School. While attending primary school, the accused began to consume cannabis.
3. During his teen years, the accused began to manifest mental issues between the ages of 13 to 15 years old. These issues manifested themselves in feelings of paranoia about anything or anybody acting in an official capacity. When travelling in a car with his mother, the accused would cover up the speakers citing that 'they' were trying to listen to our conversations. At that time, the accused began to become verbally aggressive towards his father, his sister and his mother.
4. When the accused reached his 20s, he began to become violent and aggressive with family members and police were called to intervene on occasions.
5. After an incident in 2009, the accused's mother Ms Marianne Thomas, took the accused to get professional help and he was diagnosed with ADHD and Asperger syndrome and was prescribed Ritalin. Medical practitioners tried to treat the accused with other types and varieties of prescribed drugs. The accused refused to take prescribed medications and continued to use cannabis and began experimenting with methylamphetamine. The accused also was a heavy drinker or consumer of alcohol and for a time consumed or ingested chronic or synthetic cannabis.
6. The accused engaged in a family context in paranoid behaviour including a refusal to trust doctors and other health workers and a belief that he would be taken away by betting corporations after he had had any large wins believing betting companies may have been concerned he had a winning formula that would adversely effect their profits. The accused also engaged in behaviour like shaving his head after using or ingesting methylamphetamine.
7. During an incident in May 2011, the accused's mother Ms Marianne Thomas, called police after the accused threatened to smash up the home they were then living in the Mandurah Peel area. When police attended the house, the accused attacked them with a hockey stick, was arrested and admitted to an Emergency Department at the Peel Mandurah Hospital and became under the care of Ruagaruah Community Services.
8. In 2017 or 2018 with the assistance of his mother Ms Marianne Thomas, the accused moved into a unit, at unit 5/34 Rockford Street, Mandurah. At that time, the deceased man lived at unit 15, 162 Mandurah Terrace, Mandurah, which was a relatively short distance from the unit occupied by the accused. The accused would visit the deceased and ask him for money or consume some of his alcohol.
9. At that time, the accused spent monies he received by way of Social Security on alcohol, gambling, cannabis and to buy methylamphetamine.
10. Prior to the 12th July 2020, the accused's mother Ms Marianne Thomas, observed what she thought a deterioration in the accused's mental state. The accused would utter words to the effect of 'How are your voices?' and 'Who are they?'. The accused would further utter words to the effect of 'Same mum' and 'Don't worry. They are not nasty'. The accused was sending threatening text messages and his behaviour was threatening in that the accused was verbally aggressive.
11. Prior to the 18th July 2020, the accused began to utter words in the presence of his mother Ms Marianne Thomas about elderly people to the effect of 'Old people have too much money and take up too much space. They don't do anything' and 'Old people are a waste of space' and 'Old people should be put down when they are 60'.
12. About two weeks before the 12th July 2020, the accused's mother Ms Marianne Thomas, became aware that the accused stole $50.00 from the deceased man which was spent on either the purchase of illegal drugs or gambling. Ms Thomas reimbursed the deceased man.
13. On the week commencing the 6th July 2020, the accused's mother Ms Marianne Thomas, picked up the accused to take him shopping and observing him that his eyes were blank and his face was expressionless. Ms Thomas asked the accused if he was OK and he replied 'I'm OK mum'. The accused spoke to her about 'going hunting for mushrooms'.

1. As at the 12th July 2020, Mr Edward Charles Thomas, lived at unit 15, 162 Mandurah Terrace, Mandurah. Mr [Edward] Thomas had been married to Ms Marianne Thomas and the two of them had separated after the family moved to Halls Head in 2005. Mr Edward Charles Thomas had been employed by the Water Corporation and then started to work at Murdoch University lecturing in indigenous studies.
2. As at the 12th July 2020, Mr Edward Charles Thomas's health had been deteriorating in recent years and while he could walk reasonably he was using a gopher to walk around. Mr Edward Charles Thomas had had a stroke a couple of years previously which was diagnosed after a visit to his optometrist. Mr Edward Charles Thomas had also been diagnosed with asbestosis, had had a knee replacement and a shoulder replacement.
3. Mr Edward Charles Thomas was in regular contact with members of his family including his former wife Marianne, his daughter Ms Nathasha [sic] Dawn Thomas and the accused.

Circumstances Attending the Commission of the Offence

1. At 9.40pm on the 12th July 2020, Mr Colin Daly, a police auxiliary officer, based at Mandurah Police Station, was on duty. Mr Daly's role was to answer phone calls and attending anyone arriving at the police station front desk if need be. While in the traffic office, Mr Daly looked up at the CCTV screen and observed a male person sitting in the entrance lobby of the traffic office. Mr Daly walked into the police reception desk area and pressed a button to allow the person to enter the lobby. That person was the accused and Mr Daly observed a mark on his left cheek. The accused was wearing a shirt [sic] sleeve t-shirt and shorts. Mr Daly asked the accused how he could help him and the accused replied, 'I have just killed my dad'. Mr Daly immediately smelt alcohol on the accused's breath. Mr Daly repeated to the accused, 'You've just killed your dad?' and the accused replied, 'Yes'. Mr Daly asked the accused how he had done it, to which the accused replied, 'I've hit my dad with a frying pan and gouged his eyes out and slit his throat'. Mr Daly asked the accused for his details and the accused replied that his name was Declan Thomas with the date of birth of 6th December 1988. Mr Daly informed a colleague, Sergeant Cramer, of the conversation. The accused was then escorted by Mr Daly to an office and given a drink by way of refreshment.
2. After the initial conversation or interchange with Mr Daly, Acting Sergeant Plater and Senior Constable Weedon spoke to the accused. They were later joined by Sergeant Cramer. Acting Sergeant Plater observed the accused seemed agitated and his behaviour was up and down from calm to verbally aggressive. The accused remained in the custody of those officers for several hours while other police officers went to and searched the premises at unit 15, 162 Mandurah Terrace, Mandurah.
3. While in the presence of Acting Sergeant Plater and Senior Constable Weedon, the accused made a comment along the lines of 'I've killed my father, I beat him with a frying pan and gouged his eyes out'. While in the company of Acting Sergeant Plater and Senior Constable Weedon, the accused was observed to behave erratically and his mood was fluctuating and he on occasions showed aggression. It was the perception of Senior Constable Weedon that the accused appeared to be acting in a delusional way and appeared to be having some kind of mental episode. At some stage, the accused was restrained by handcuffs being applied in the front stack position.
4. Several police officers including Acting Sergeant Herbert, Senior Constable Tamblyn and Constable Plater responded to a call to attend premises at unit 5, 34 Rockford Street, Mandurah. These were premises occupied by the accused. The officers were then requested to conduct a welfare check on the deceased man, Mr Edward Charles Thomas at unit 15, 162 Mandurah Terrace, Mandurah.
5. Arriving at unit 15, 162 Mandurah Terrace, Mandurah, at about 10.00pm, Acting Sergeant Herbert entered the unit and observed the deceased man wearing what appeared to be dark pyjamas bottoms and a top, laying on his righthand side on the loungeroom floor. The deceased man had a significant amount of blood on his body and also on the floor next to him. Acting Sergeant Herbert observed a small knife with a black handle which appeared to be a household steak knife next to the deceased man's body. The television was turned on and the kitchen light was on. Acting Sergeant Herbert observed a large laceration on the deceased man's throat which travelled from the centre to the right side under his ear and a bloodied and swollen face. Acting Sergeant Herbert asked Senior Constable Plater to shine his torch on the deceased man's face and when Acting Sergeant Herbert observed him he appeared to be unresponsive. Acting Sergeant Herbert then attempted to see if the deceased man had a pulse by using two fingers to feel his neck and in doing so observed that his body was warm to the touch. Senior Constable Plater retrieved some bandages from a medic bag and endeavoured to apply some bandages to the deceased man.
6. Acting Sergeant Herbert declared the scene a protected forensic area at 10.00pm. Upon being advised by his colleague, Detective Senior Constable Tamblyn that she had located a human eyeball in the master bedroom of the unit, Acting Sergeant Herbert entered the master bedroom where he observed what appeared to be an eyeball on the floor to the right side of the bed. The eyeball still had a small amount of flesh attached and also a small amount of blood. Acting Sergeant Herbert then conducted a further search of the unit to eliminate the possibility of any other persons being present and in doing so located another human eyeball on the floor near the sliding door. That human eyeball also had a small amount of flesh attached and also a small amount of blood.
7. Senior Constable Plater heard Acting Sergeant Herbert try to arouse the deceased man by saying 'Sir, sir' and when Acting Sergeant Herbert moved or rolled the deceased man's body over, he saw a large wound about 4 to 5 inches long going from the middle of his throat across to the righthand side up towards his ear.
8. Senior Constable Plater also observed an imprint of what he thought was the heel of a large size sneaker on the floor of the loungeroom made from blood. Senior Constable Plater observed on the right side of the deceased man what he could see was a steak knife about 1 to 2 feet from the body. The blade of the knife was about 6 inches long and it had a black handle. Senior Constable Plater observed the deceased man to be lying on what looked like a wooden ornamental spear and another ornamental object. Senior Constable Plater could observe a broken pair of reading glasses at the head of the deceased man's body.
9. The knife was seized as an exhibit during a search of the premises and subsequent Homicide Squad and Forensic Police enquired an operation. The knife was examined in the fingerprint laboratory of the West Australian Police Forensic Branch and the dimensions of the knife were later measured by officers attached to the PathWest during examination of the knife. The overall length of the knife was 215 millimetres. The knife had a serrated, single edge blade length of approximately 112 millimetres at its widest point. The width of the blade of the knife was 17 millimetres. Photographs of the knife are attached to this Statement of Case.
10. Senior Constable Tamblyn observed from the doorway to the unit what she thought was the body of an elderly male of frail frame and grey coloured hair. Senior Constable Tamblyn could see lots of blood on the male's face and could hardly see any facial features due to what she perceived as significant facial trauma. Senior Constable Tamblyn observed that the deceased man's forehead and eyebrow area looked chunky and swollen and 'kind of messed up'. Senior Constable Tamblyn could not observe any facial features due to the large amount of trauma on the face and the angle of the head tilted away from her. Senior Constable Tamblyn observed a lot of red blood, thick in the carpet, and clear liquid like plasma or water in appearance in amongst the red thick liquid which she thought was blood. Senior Constable Tamblyn observed blood on the deceased man's chest and stomach.
11. Senior Constable Tamblyn observed in what she referred to as 'the little loungeroom' a frying pan that was upside down. The frying pan was over to the left of the deceased man's body near a heater. Senior Constable Tamblyn did not touch the frying pan. Entering the master bedroom, Senior Constable Tamblyn saw the circular sphere of an eyeball with a tube of sorts attached to the back and alerted Acting Sergeant Herbert's attention to it.

1. A post mortem examination conducted on the deceased on the 15th July 2020, by forensic pathologist Dr Kueppers and Dr Ong determined that the cause of death was neck and head injury in a man with atherosclerotic heart disease. The post mortem examination showed a sharp force injury to the neck, with an injury to the upper airway (larynx) and muscles at the front of the neck (strap muscles) as well as probable injury to the thyroid vessels. There was evident bilateral traumatic enucleation of the eyes. There were blunt force head injuries including facial lacerations, bruising, abrasions and nasal fracturing; and minor injuries were present to the limbs and the back of the head. There was hardening, thickening and narrowing of the vessels supplying the heart muscle (coronary atherosclerosis) with associated scarring of the heart muscle. The liver had a fatty appearance.
2. . The post mortem report disclosed numerous lacerations on the front left and right side of the deceased's face and upper eyelid.
3. Internal examination of the deceased man's head showed subcutaneous and soft tissue haemorrhaging at the right frontal region, subcutaneous and soft tissue haemorrhaging to the left occipital region of the scalp and a patchy soft tissue haemorrhage at the left and right temporalis muscle.
4. An examination of the deceased man's neck showed an apparently incised wound to the neck transversely oriented, the centre being present approximately 146 millimetres above the right heel as measured to the anterior midline and the wound measured approximately 180 millimetres in length with a maximum gaping width of approximately 45 millimetres with the head in a neutral position. One end of the wound located on the left side of the anterior lateral neck displayed a split dual appearance demarcated by skin tag. The other end was located to the right side of the neck. There was visible injury to the subcutaneous soft tissue and underlying anterior neck structures including thyroid cartilage. There was also visible transection of the neck musculature.
5. There was an obliquely oriented gaping defect through the full thickness of the anterior aspect of the thyroid cartilage orientated in an approximate 10.00-4.00 o'clock position as viewed from the front of the neck with the body in the anatomical position measuring approximately 30 millimetres x 6 millimetres. There was a complete transection of the proximal right superior thyroid artery approximately 5 millimetres from its origin.
6. Macroscopic ('naked eye') specialist neuropathologist's examination of the brain showed evidence of cerebrovascular disease including multifocal complicated atheroma of the arteries at the base of the brain and an old stroke and a border stroke distribution with a right occipital lobe. There were no macroscopic features of recent traumatic brain injury.
7. There was bilateral traumatic enucleation of both eyes.

Toxicological Analysis Sample of Blood of the Accused

1. A toxicological analysis of the blood of the accused disclosed that the accused had .00520 milligrams/litre of tetrahydrocannabinol in his blood and a blood alcohol reading of .011%.

The Accused's Electronic Record of Interview with Detective Senior Constable Lee McKnight & Detective Senior Constable Andy Smith of Tuesday the 13th July 2020 at 1.26pm

1. The accused was interviewed by Detective Senior Constable Lee McKnight and Detective Senior Constable Any Smith of the Homicide Squad on Tuesday the 13th July 2020 at 1.26pm. After cautioning the accused and advising him of his rights pursuant to the Criminal Investigation Act and ensuring that he had some refreshment and clarifying that he actually wanted to answer questions, Detective Senior Constable McKnight asked the accused, 'Right, oh, Declan, mate. I'm going to ask you, talk this straight out, mate, OK. What do you know about the death of, um, Edward Thomas last night?'. The accused replied at page 12 and page 13 of the transcript, 'um, well I entered the house and he was sitting in his chair. I picked up a frying pan off the kitchen sink, walked up behind him and hit him once over the head with it and then twice and then I've grabbed him around the neck and I've put a chokehold. We were on the ground for about 30 or 40 seconds, struggling because I was trying to end his life and it got to be quite a struggle so I've used my fingers to gauge his eyes to try and take out his sight because it was, he was quite strong and after that I picked up a knife and slit his throat and held his hand, he squeezed it and he left the world. That was that'.
2. The accused then elaborated, 'it was a thing where he had been getting to me for a long time. He wasn't exactly a terrible man. We never really got along or but we weren't complete enemies'. The accused continued, 'And he was just getting older and older and older, and he just kept playing, playing half of the pain is - yeah. I just went and did that'. The accused repeated, 'Yeah, he was getting older and older'.
3. Detective Senior Constable McKnight clarified with the accused, 'Yep and what's the pain you speak of that you just mentioned?'. The accused replied, 'Well, it doesn't really move around anymore. He doesn't, it's not like he was years ago'. Detective Senior Constable McKnight then clarified the address that the deceased man lived at and the accused replied, 'Yeah, yeah, near, that's why I told you guys to get there, if you could get there last night and - just make sure that the body is secured and out of sight and stuff of people'.
4. The accused clarified that earlier in the day he had just been watching TV having a few drinks and smoking and stated that he wasn't overly intoxicated or anything. At page 14 of the transcript and page 215 of the prosecution brief, Detective Senior Constable McKnight asked the accused, 'when you say a few drinks, can you remember what you were drinking?' and the accused replied, 'Bullet Bourbon' which he clarified was lemonade and cola. The accused replied that he had drunk about a quarter of it, a quarter of a bottle of that liquor. The accused further stated, 'wasn't much, I definitely wasn't drunk or anything'.
5. At page 15 of the transcript, being page 216 of the prosecution brief, the accused was asked by Detective Senior Constable McKnight, 'Yep, um. Um, you mentioned smoking as well' and the accused replied, 'cannabis and tobacco'. The accused confirmed that he was a daily consumer of cannabis and at page 16 of the interview and page 217 of the prosecution brief, stated 'it's just one of those things that makes me feel better'. The accused also told Detective Senior Constable McKnight that he used crystal meth as well on and off.
6. At pages 16 and 17 of the transcript of the interview, being pages 217 and 218 of the prosecution brief, the accused clarified that his father did not live far from home from him and said it was getting dark and between about 7.00 or 8.00pm when he went to his father's house. The accused said he just knocked on the door and his father let him in.
7. At page 18 of the transcript of the electronic record of interview and page 219 of the prosecution brief, the accused was asked by Detective Senior Constable McKnight, 'So, when did you make the decision, um, I guess to do what you've done last night to your father?' and the accused replied, 'He didn't know'. The accused then elaborated that 'It's a complicated thing. It's been going on for quite, it's been going on for years'.
8. At page 19 of the transcript, being page 220 of the prosecution brief, the accused was asked, 'Was that straight away or sort of since inside and spoke for a period of time, we watched TV together?' and the accused replied, 'Um, I think I said hello to him and that and I said hello to him and stuff and that's, um, you know, I just said hello to him, then walked from there and picked up a frying pan from the sink'. The accused told Detective Senior Constable McKnight that his father was in the reclining chair and at page 20 of the transcript of the electronic record of interview, being page 221 of the prosecution brief, the accused said that he walked up from behind his father because he didn't want him to know about it and wanted it to be as quick as possible. When asked by Detective Senior Constable McKnight, 'Sure, um, I guess in terms of action I get it, you know, what kind of, did you swung at him and hit him in the back of the head?' and the accused replied, 'Yes' and when asked by Detective Senior Constable McKnight from the side or from above, the accused replied, 'It was just a hard hit'. The accused further clarified that the first blow struck and he was still awake and it was a pretty strong blow. When asked by Detective Senior Constable McKnight whether the deceased man said anything to him, the accused replied that he said 'Oh, Dec'. When asked by Detective Senior Constable McKnight, 'How many times he was hit with the frying pan?', the accused replied, 'Twice, three times'. When asked by Detective Senior Constable McKnight, 'Did that cause him to go to the floor or was it a wrestle off the chair onto the floor?', the accused replied, 'Um, no, he was just, I put him in a sleeper hold'.
9. The accused was then asked about what else he did to the deceased and at page 22 of the transcript, being page 223 of the prosecution brief, the accused replied, 'Cause he, we were struggling on the floor and he almost had me. Yeah, he's 70, 75. I know how old he was and he still had me. I was lucky to even win that fight' and the accused continued, 'And I took his eyes out. It wasn't something there, I was mucking around, it was just fast because I wanted to take out his eyesight and I ended with a knife'. When asked by Detective Senior Constable McKnight, 'Was that in close proximity or did you have to get back up to, to grab a knife from somewhere?'. The accused replied, 'I think I had to get up to grab it and it was running, yeah, it was pretty fast. It was fast as possible'. The accused continued, 'No fucking around' and when asked to describe the steak knife, the accused replied, 'It was a black, it was a black steak knife, the kitchen knife' and the accused clarified that it had a serrated edge. The accused said that his father was on the floor at the time and on his back. At page 24 of the transcript of the electronic record of interview, being page 225 of the prosecution brief, the accused was asked by Detective Senior Constable McKnight, 'Yep, um, he's laying on his back, um, OK, so you've come over with the knife. Were you standing or kneeling?' and the accused replied, 'Um, yes. I went down, yeah, um, he was on the ground so I just, yeah, just next to him and just cut his throat, yeah, several times, several cuts'. When asked by Detective Senior Constable McKnight, 'OK, do you remember what you did, ah, he's grabbed your hand, you've said, ah, do you remember what you did immediately afterwards?'. The accused replied, 'Um, that's where he was, that's when he was nearly dead' and continued, 'And at that time he was just lying lying back' and the accused further clarified, 'And that was his last breath, yeah'. When asked by Detective Senior Constable McKnight, 'OK. Did so. Did you see him die?', the accused replied, 'Yes'. When asked by Detective Senior Constable McKnight, 'Yep, um, I just want to confirm with you what makes you say I guess definitely dead in your mind?', the accused replied, 'Well, he was just dead. If he was not dead then I don't know what's going on. He's not dead then he's not human. Oh, no, he would be dead?, Yes'.
10. The accused was then asked by Detective Senior Constable McKnight, 'Alright, and what about yourself, Declan?. Did you immediately after that, did you, what did you do?' and the accused replied, 'Um, I just, um, left there. I've picked up, I picked up my bottle, left there, just closed the door and started walking down to the police station. I had a few sips along the way, left the bottle on the ground and just kept walking and I just went to a major police station again and that was it'.
11. During the balance of the interview, the accused was asked about mental health issues, his alcohol and drug consumption and issues relating to his father being in pain. Near the conclusion of the interview, at page 48 of the transcript, being page 249 of the brief, Detective Senior Constable Smith asked the accused, 'When you turned up at your dad's place, was he surprised to see you?'. The questioning continued. Detective Senior Constable Smith put to the accused, 'OK, so when he opened the door, he thinks you've just come around for a visit like you normally would?'. The accused replied, 'Yeah'. The accused was asked by Detective Senior Constable McKnight, 'What emotion were you feeling?', and the accused replied, 'Maybe I should have faced him instead of hitting from behind. I just thought it was a good thing to do. I didn't want him to see it coming'. The accused continued, 'I love him too much'. When asked by Detective Senior Constable McKnight, 'Um, what, um, what emotion, you said it wasn't range or anything like that. Did you feel any emotion last night when you go there?', and the accused replied, 'Before and after, mostly after', and continued. 'Now I have to live with that for the rest of my days'.
12. The accused was then asked about comments that he made to police officers at the Mandurah Police Complex before he was taken into custody by officers of the Homicide Squad. At page 50 of the transcript of the electronic record of interview, being page 251 of the brief, the accused was asked, 'Cause we are, we were made aware of some comments that you made, to, um, the police officers but they've told us their comments. We don't, I don't know if they are exactly true or not. So I just wanted to hear from you what you can remember saying'. The accused replied, 'Oh, just cornering the mike right, like, right wing fuck wits and right, what is it, righthanded bastards or fucking I don't know what else. It's all, it's just some of it, a little bit of it is non-sensical because it's just somethings, that I just, another one, was, I just wanted fucking jellybeans and stuff. But it's just some people that would just pissing me off and I didn't like. I didn't really hate them to begin with. And it's just like, it's got nothing, it's got nothing to do with any, it's only cause I couldn't quite come up with something to just, name calling, you know, like, you're right, like, you're right, fuckwit, yeah, fucking jellybean, fucking dickhead'. When asked by Detective Senior Constable McKnight, 'Do you remember what that was all?', the accused replied, 'Just them, just telling them what I did and then just being there, waiting and waiting to get here to now'.
13. The accused was then asked a series of questions about the forensic examination that occurred at the house or unit that he occupied at unit 5/34 Rockford Street. At p253 of the prosecution brief, being page 52 of the transcript of the electronic record of interview, it was put to the accused that blood droplets had been located by a forensic examination of the unit going up the stairs towards the living room. The accused clarified that he lived in a two storey unit which was a little townhouse. When asked whether he was aware of any blood droplets on the stairs going up the stairs, the accused replied, 'It might have come off me'. The accused clarified that, 'When I got back, I washed my hands in the sink and washed the blood off my hands in the bottom sink'.
14. Detective Senior Constable McKnight then clarified, 'OK, when will that have been?' and the accused stated, 'Um, when I got back and washed, I washed my hands in the sink and washed the blood off my hands in the bottom sink'. Detective Senior Constable McKnight asked, 'At your house?'. The accused replied, 'That's another thing, I didn't, that's something I forgot to mention to you'.
15. Detective Senior Constable McKnight clarified with the accused, 'So, let's work back from there. So you're saying that you've washed your hands in your sink?, and the accused replied, 'Yeah'. The accused clarified that the sink is the bottom one, the silver sink where the front door is, the laundry sink'.
16. Detective Senior Constable McKnight asked the accused, 'OK. Um, alright, so I'm just trying to get this clear. So you said that when you left your dad you didn't go back or you weren't going back to your house. Are you saying now that you did go back to your house after you left?' and the accused replied, 'Yes. I know, that's I thought I told you guys that, did I fail to mention it'. The accused then stated, 'Nah, I've gone back from his house to my house and to the police station'. The accused then stated in answer to a question from Detective Senior McKnight, 'Did you go anywhere else on the way?' and the accused stated, 'Yeah, I did fail to mention it cause I washed my hands in the sink there. The good thing you brought that up actually'. The accused further stated, 'I might have, I might have had a smoke or something and then going from there, I wasn't there very long, it was, I probably would have been there not very long at all, probably about 5 minutes, probably less, walking from there to the police station. I can remember sitting there on the couch now feeling it as well, it's up to 2 or 3 minutes, wasn't very long and then I just got up from there. And that's when I left. Possibly that's when I left the door open and just left it like that. I left it. I think I've left it open to the start and then I got back as well and then I left, yeah. I didn't intend on coming back at all, no'. Detective Senior Constable McKnight asked the accused, 'Do you say you went back for a smoke, a cigarette smoke or a?'. The accused replied, 'Well, I, that part I'm not sure. I might have had a smoke or a drink. I definitely brought my bottle with me. My, I then put it down the footpath and on the way I couldn't be bothered with it anymore. I wasn't taking it to the police station. Oh'. Detective Senior Constable McKnight then asked the accused, 'OK, so you've gone back there immediately after your dad's house, washed your hands in the .... ah, laundry sink, you've possibly gone upstairs, possibly had a smoke or a drink but, you were there roughly 5 minutes we think perhaps and then you've left from there', and the accused replied, 'Yes'.
17. The accused told Detective Senior Constable McKnight, 'I've gone from my dad's to my house ... about 2-3 minutes and then from there straight to the station'. Detective Senior Constable McKnight clarified, 'Straight to the police station, OK?' and the accused replied, 'I ran, yeah, I left, yeah'. Detective Senior Constable McKnight asked the accused, 'Did you see anyone else you knew in your travels?, and the accused replied, 'From, no'.
18. At page 256 of the prosecution brief, being page 55 of the transcript, Detective Senior Constable McKnight clarified with the accused, 'What happens there. What's happened there is that you've told us about in quite some detail, you've walked to your house' and the accused replied, 'Yes'. Detective Senior Constable McKnight then clarified with the accused, 'Washed your hands in the laundry sink?', and the accused replied, 'Yes', and Detective Senior Constable McKnight clarified, 'Possibly gone upstairs' and the accused replied, 'Had a smoke or drink, yes'. Detective Senior Constable McKnight then clarified, 'Left the door open or with your key in the door' and the accused replied, 'Yep', and Detective Senior Constable McKnight then clarified, 'And then you've taken your jumper off', and the accused replied, 'And then I've just taken off and left it there and kept walking'.
19. After the accused left the unit at unit 5/34 Rockford Street, Mandurah, he then walked to the Mandurah Police Station.

1. The Agreed Timelines of Events provides as follows: [9]

Accused leaves his place of residence at Unit 5/34 Rockford Steet, Mandurah.

Accused enters Unit 15/162 [Mandurah] Terrace picks up frying pan and hits the Victim over the head 1-3 times. Accused grabs victim around the neck and puts him in chokehold. During struggle between accused and victim, accused uses his fingers to gauge out the Victim's eyeballs. Accused picks up a knife and slits the throat of the victim before holding his hand.

Sips from a bottle containing alcohol before leaving it on the ground on way to the Mandurah Police Station by foot.

Accused observed sitting in entrance lobby of Mandurah Police Station and allowed entry into reception area.

Makes first admissions to hitting the victim with a frying pan, gauging his eyes out and slitting his throat. Makes admissions to causing the death of the victim.

Police request conduct welfare check on the victim.

Police arrive at Unit 5/34 Rockford Street to conduct welfare check on the victim and find unit empty.

Police arrive at Unit 15/162 Mandurah Terrace to conduct welfare check on the victim and locate victim.

Police declare Protected Forensic Area at Unit 15/162 Mandurah Terrace.

Police declare Protected Forensic Area at Unit 5/134 Rockford Street.

St John Ambulance arrive at Mandurah Police Station and conduct medical assessment of accused.

Police reiterate to accused that he is under arrest on suspicion of murder.

Accused makes telephone call to Marianne Thomas from police station.

Accused conveyed by police to Homicide squad offices.

Accused participates in Police Video Record of Interview.

1. Pursuant to s 119(1) of the CPA, a judge sitting alone must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. The judgment of the judge in a trial by judge alone must state the principles of law that he or she has applied and the findings of fact upon which he or she has relied.[10]
2. In a criminal trial, the accused is presumed to be innocent of the charge. The burden of proving guilt is on the State. The standard of proof required to be achieved by the State is proof beyond reasonable doubt. Unless I am satisfied that each element of the offence has been proved by the State beyond reasonable doubt, Mr Thomas must be acquitted.
3. I must not speculate about matters not in evidence or look for theories that are not supported by the evidence. My verdict must be based only on the evidence.
4. If 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 the presumption of 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.
5. The State tendered, by consent, the expert report of Dr Brett. Dr Brett was not required for cross-examination. Mr Thomas relied on the expert report of Dr van Hattem. Dr van Hattem gave evidence at the trial. I have approached my assessment of the evidence of the respective expert witnesses as I would for any other witness. I am not bound to accept and act upon any witness' evidence, including an expert witness' 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. The Court of Appeal considered the proper approach to expert evidence which is not contradicted at trial in Hone v The State of Western Australia.[11] Both Steytler P and Miller JA (Wheeler JA agreeing) 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.[12]
6. In assessing the evidence and reaching a verdict, it is necessary to guard against any feelings of prejudice or sympathy. Such feelings must be put aside, and the issue of whether Mr Thomas's guilt has been proved beyond reasonable doubt must be determined dispassionately and objectively.
7. I also direct myself that it is dangerous to assess Mr Thomas's words and actions in testing his capacity to control his actions or to know that he ought not to do the act that resulted in the charge by the standards of people who do not suffer from a mental illness.
8. Mr Thomas did not give evidence. It was his right not to do so and no inference adverse to the accused can be drawn by reason of the fact that he chose not to give evidence.

(1) that Mr Thomas killed Edward Thomas;

(2) the killing was unlawful; and

(3) at the time Mr Thomas killed Edward Thomas, he intended to cause Edward Thomas's death or intended to cause him a bodily injury of such a nature as to endanger, or be likely to endanger, his life.

1. A person who causes the death of another, either directly or indirectly, is deemed to have killed that other person.[13] In this case, Mr Thomas has made a formal admission that he caused the death of Edward Thomas and he intended to do so.
2. It is unlawful to kill any person unless the killing is authorised, justified or excused by the law.[14] Mr Thomas has raised the defence of insanity. In circumstances where that defence has been raised, it is necessary to consider whether Mr Thomas 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 Mr Thomas that the next question arises, namely, what was his intention at the relevant time. The issue of insanity must, therefore, be determined before the issue of intent.[15]

1. Every person is presumed to be of sound mind until the contrary is proved.[16] Mr Thomas has the onus of proving, on the balance of probabilities, that he was not of sound mind. That is, that he is not criminally responsible pursuant to s 27 of the Criminal Code at the time that he did the act that is alleged to constitute the offence.[17] If Mr Thomas does not prove that he was of unsound mind on the balance of probabilities, the State will have proved the unlawfulness element of the charge beyond reasonable doubt.
2. Sections 27 and 28 of the Criminal Code provides as follows:

Insanity

(1) A person is not criminally responsible for an act or omission on account of mental impairment 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 the 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.

Intoxication

(1) Section 27 applies to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means.

(2) Section 27 does not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not.

(3) When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.

1. Section 27 is applicable in this trial. Mr Thomas's defence is that at the relevant time he suffered from undiagnosed treatment-resistant schizophrenia. Mr Thomas says that his schizophrenia deprived him of the capacity to know that he ought not to do the act which caused the death of Edward Thomas.
2. Whilst the Statement of Case and electronic record of interview make reference to Mr Thomas consuming alcohol and cannabis on the day of the offence, no issue arises on the evidence before the court that the level of consumption of either was sufficient to raise the possible application of s 28 of the Criminal Code, and the State does not submit that s 28 is applicable.
3. Section 1(1) of the Criminal Code defines 'mental impairment' to mean intellectual disability, mental illness, brain damage or senility. The term 'mental illness' is defined as meaning:

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.

1. The question of what constitutes mental illness is a question of law, and the question of whether or not the facts disclose a state of mental illness is a question of fact.[18]
2. In The State of Western Australia v Jones,[19] Jenkins J made the following observations regarding the definition of 'mental illness', which I respectfully agree with and adopt:

The definition of 'mental illness' reflects some of the comments made by King CJ in Radford[20] about the meaning of the expression 'disease of the mind' which is used in the common law of insanity. Summarising the statement of King CJ:

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 diseases, 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 'must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, properly be termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli'.

1. The capacity which Mr Thomas says he is deprived of by reason of his mental illness is the capacity to know that he ought not to do the act or make the omission. The meaning of this phrase was considered by the High Court in Stapleton v The Queen:[21]

A case of this description must turn very largely upon the jury's appreciation of what amounts to knowledge of the nature and quality of the act and of its wrongness. 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] HCA 1; (1933) 55 CLR 182 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.

1. The High Court also held that a direction to a jury that 'wrong' meant 'against the law' was in error. There is no requirement that the accused know the act is wrong in the sense of contrary to law, but that rather it is a question of knowing right from wrong, good from evil, not legality from illegality.[22] The High Court went on to observe that in some cases this distinction may not be of much significance, but in others it may be.[23]
2. In Evans v The State of Western Australia,[24] 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 went on to consider the term 'know' in s 27 of the Criminal Code and concluded: [25]

Thus the real issue for the jury in this case was whether the appellant had established on the balance of probabilities that at the time of the killing his mental impairment resulted in a complete incapacity to reason as to what is right or wrong according to ordinary standards. The term 'know' means 'understand', 'appreciate' or 'comprehend'. An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from understanding that he (or she) ought not do the act. Knowledge (short of understanding) that to kill is punishable by law does not prevent such a finding. Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct. Whether an act is right or wrong is determined by reference to an objective standard. The question is whether the appellant had a complete incapacity to reason as to what was, by that objective standard, right or wrong.

1. Wheeler JA (with whom Owen JA agreed) held as follows:[26]

It is not easy to summarise the detailed discussion of authority in Stapleton in a way which is capable of being fashioned into an appropriate direction in every case of insanity. However, the principles extracted from that discussion appear to focus upon two issues. First, the ability to know that one 'ought not' to do an act or make an omission is a capacity to know that one 'ought not' to do it according to ordinary standards of right and wrong, rather than knowledge that the act is unlawful. As the High Court observed, from a practical point of view it often may not matter much, because in relation to serious offences the two ideas 'are not easily separable' (at 375). However, in cases where, as here, the distinction may arise, it should be made. The second principle is that the capacity which must be found to be lacking is not merely a capacity to appreciate, in some abstract sense, that others would view the act as wrong. Rather, it is a capacity of the particular accused either to discern the difference between moral good and evil, or to 'think rationally' of the reasons which would lead ordinary people to consider the act to be right or wrong.

1. A second capacity is raised on the evidence, being the capacity of Mr Thomas to control his actions. A person is deprived of the capacity to control their actions if, by reason of their mental impairment, they are deprived of the ability to make a conscious decision to do the relevant act and to exercise the power of choice to act.[27] A person is not deprived of the capacity to control their actions merely by reason of having a significantly impaired capacity to resist an impulse or emotion.[28]

1. In addition to the Statement of Case and the Agreed Timeline of Events, the following evidence was led at trial.

1. Mr Thomas made the following formal admissions pursuant to s 32 of the Evidence Act 1906 (WA):[29]
   1. On the 12 July 2020 at Mandurah between 8.28pm and 8.36pm, I caused the death of Edward Charles Thomas.
   2. At the time that I caused the death of Edward Charles Thomas, I intended to cause his death.

1. Mr Thomas participated in an electronic record of interview on 13 July 2020 with Detective Senior Constable McKnight and Detective Senior Constable Smith.[30] By way of overview, in the interview, Mr Thomas:

(a) admitted that he killed Edward Thomas on 12 July 2020. Mr Thomas gave the following description of the offending:[31]

I entered the house and he was sitting in his chair. I picked up a frying pan off of the - off of the kitchen sink, walked up behind him and hit him once over the head with it and then twice. And then I've grabbed him around the neck and I've put him into a choke hold. We were on the ground for - for about 30 or 40 seconds, struggling because I was trying to end his life. And I've - it got to be quite a s - struggle, so, I've used my fingers to gouge his eyes to try and take out his sight because it was - he was quite strong. And after that I picked up a knife and slit his throat and held his hand, and he squeezed it and he left the world. That was that.

(b) explained that after his throat had been slit, Edward Thomas grabbed Mr Thomas's hand, and Mr Thomas told Edward Thomas that he loved him;[32]

(c) explained the above occurred at Edward Thomas's house, around 7.00 pm or 8.00 pm after it was dark. Mr Thomas walked from his house to Edward Thomas's house;[33]

(d) said that he consumed a quarter of a bottle of bourbon on the day of the offence, but was not drunk. Mr Thomas also said that he smoked cannabis and tobacco, but was not intoxicated;[34]

(e) explained that after the offence, he left Edward Thomas's house and walked back to his own house. Mr Thomas then washed blood off his hands in the downstairs sink. Mr Thomas thinks he stayed at his house for two to three minutes, had a drink and a smoke, before walking from his house to the Mandurah Police Station;[35]

(f) explained his actions on the basis that Edward Thomas was getting older, was in pain, was not walking properly, was falling over and was unhappy;[36]

(g) described how he has heard voices in his head since around the age of 21 or 22 and that he was hearing voices or music in his head at the time of the interview. Mr Thomas described himself as having anxiety and psychosis;[37] and

(h) described hearing an inner voice on the night of the offence.[38]

1. The State tendered the expert report of Dr Adam Brett, dated 5 November 2020.[39] Dr Brett did not give evidence and his report was tendered by consent.
2. Dr Brett is a consultant psychiatrist who qualified in medicine at St Bartholomews Hospital in 1990. Dr Brett was elected a member of the Royal Australian and New Zealand College of Psychiatrists in 1999. At the time of preparing his report, Dr Brett held clinical positions at the Mental Health Court and the Autism Association of Western Australia. Dr Brett was the Director of the community Forensic Mental Health Service from 2001 ‑ 2009.
3. Dr Brett undertook clinical interviews with Mr Thomas on 20 October 2020, 26 October 2020 and 3 November 2020 for the purposes of preparing his report. Dr Brett was also provided with a bundle of documents (including the statement of material facts, various statements from the prosecution brief and Mr Thomas's medical records) and has liaised with Mr Thomas's treating team at the Frankland Centre and prison mental health services.
4. Dr Brett's report details Mr Thomas's account of the evening Edward Thomas died; information provided to him by Mr Thomas and his family regarding his previous mental health and psychiatric history; information from Mr Thomas's medical records and Mr Thomas's personal and family history. Dr Brett recorded Mr Thomas's explanation for killing his father as follows:[40]

He stated that he had not planned to kill his father when he attended his unit. He described experiencing a single male voice that said 'kill Eddie, kill your father'. He described this as a bad voice. He stated that he also experienced good voices but this one was bad. He stated that in his mind he believed that it was the right thing to do. He stated that he was not feeling or thinking much at that time.

1. Dr Brett's report then addresses two separate issues. The first is Mr Thomas's fitness to stand trial. Dr Brett's opinion on this issue is now outdated due to the effluxion of time and is not relevant for the trial. The second opinion expressed by Dr Brett is relevant to the trial and concerns Dr Brett's conclusions as to whether Mr Thomas was suffering from a mental impairment, and whether that impairment deprived Mr Thomas of any of the capacities referred to in s 27 of the Criminal Code.
2. Dr Brett concluded that at the time of his report Mr Thomas was suffering from chronic treatment resistant schizophrenia:[41]

Mr Thomas has a history and presentation that is consistent with a major mental illness. I believe that he has the symptoms and history consistent with chronic treatment resistant schizophrenia. He has the positive symptoms (hallucinations, delusions and thought disorder), and negative symptoms (restricted affect, amotivation, lack of social interest) of schizophrenia. He has a severe illness, that serious [sic] impacts on his functioning and his risk to himself and others.

1. Dr Brett's report states that at the time of Edward Thomas's death, Mr Thomas had psychosis for at least nine years before the alleged offence and had not been admitted to a mental health unit. Mr Thomas had multiple presentations to hospital due to psychosis, suicidal ideas and threats and aggression towards his family. Mr Thomas had not been on antipsychotic medication since 2017.[42] In these circumstances, Dr Brett concluded that:[43]

I believe that he had an untreated mental illness that made him psychotic and a risk to himself and others for at least a year before the alleged offence.

1. Dr Brett's opinion as to whether Mr Thomas had a mental impairment at the time of the death of Edward Thomas was:[44]
   1. I believe that at the time of the alleged offence, Mr Thomas was acutely unwell. I believe he had a mental impairment, as defined in the Criminal Code, namely the mental illness, chronic paranoid schizophrenia. It was untreated at the time of the alleged offence.
   2. He described odd thinking, with thought disorder and delusions. He believed that there was a massive conspiracy involving Freemasons and catholics. This impacted on his everyday thinking. He also experienced auditory hallucinations. At times these were distressing and command in nature. He described these at the time of the alleged offence. He described very black and white thinking. He believed that death was a good alternative, for both himself and his father. He believed that his father was in pain and elderly. He seemed to equate this with the state of the world and the conspiracy he believed in.
2. In terms of the various capacities referred to in s 27 of the Criminal Code, Dr Brett's opinion was that at the time of the offence, Mr Thomas understood what he was doing and the physical acts he was doing.[45]
3. Dr Brett also concluded that at the time of the offence, Mr Thomas was deprived of the capacity to control his actions and the capacity to know that he ought not to do the act:[46]
   1. I believe that at the time of the alleged offence Mr Thomas was impaired in his capacity to control his actions. I believe that his psychosis was so severe, it is likely that he was deprived of the capacity to control his actions. He was experiencing command auditory hallucinations and appeared driven to act as he did.
   2. I believe that at the time of the alleged offence, Mr Thomas was deprived of the capacity to know that he ought not do the act. I believe that due to his psychosis, his faulty thinking and his faulty logic, he believed that he was doing the right thing. He believed that he was acting in his father's best interests and that he loved him. He stated that he told him he loved him as he held his hand following the action.

1. Mr Thomas called Dr van Hattem and tendered his report dated 28 July 2023.[47] Dr van Hattem was cross-examined.
2. Dr van Hattem is a forensic psychiatrist working in private practice and as a consultant psychiatrist for the Victorian Institute of Forensic Mental Health. Dr van Hattem completed a Bachelor of Medicine and Bachelor of Surgery in 2012, and a Graduate Certificate of Forensic Behavioural Science in 2018. Dr van Hattem became a fellow of the Royal Australian and New Zealand College of Psychiatrists in 2019.
3. Dr van Hattem undertook clinical interviews with Mr Thomas on 13 June 2023 and 11 April 2023 for the purposes of preparing his report. Dr van Hattem was also provided with a bundle of documents (including the amended statement of material facts, the statement from Mr Thomas's mother, the transcript of the record of interview and Mr Thomas's medical records). Dr van Hattem has also seen Mr Thomas on two further occasions after the completion of his report, for the purposes of assessing Mr Thomas's fitness to stand trial.[48]
4. Dr van Hattem's report details Mr Thomas's account of the evening Edward Thomas died and the history leading up to it, information provided to him by Mr Thomas and his family regarding his previous mental health and psychiatric history and his personal and family history and information from Mr Thomas's medical records.
5. Dr van Hattem recorded Mr Thomas's explanation for killing his father as follows:[49]
   1. Mr Thomas said that for several weeks prior to the alleged offence, he heard voices telling him that his father 'needed to die'. He said that he had seen his father coughing and wheezing, which he believe was because of emphysema. The voices built on and exaggerated his father's ill health, and convinced him that his father was 'getting old and that he was suffering and needed to die'.

1. Mr Thomas described a sense of pressure that built up over time. He denied having any specific plan in advance. He said that on the day of the alleged offence he 'got up out of the chair and went to [his father's] house and did it' on the 'spur of the moment'. He could not think of any particular reason that he did so on that day over any other, other than the building 'pressure' hitting a threshold.
2. Dr van Hattem's report then addresses the question of whether Mr Thomas is suffering from a mental impairment, and whether that impairment deprived Mr Thomas of any of the capacities referred to in s 27 of the Criminal Code.[50]
3. In terms of whether Mr Thomas was suffering from a mental impairment, Dr van Hattem concluded that both at the time of his report, and at the time of Edward Thomas's death, Mr Thomas was suffering from schizophrenia. Dr van Hattem includes the following description of schizophrenia, as contained in the International Classification of Diseases 11 (ICD-11), in his report:[51]

'Schizophrenia is characterised by disturbances in multiple mental modalities, including thinking (e.g., delusions, disorganisation in the form of thought), perception (e.g., hallucinations), self-experience (e.g., the experience that one's feelings, impulses, thoughts, or behaviour are under the control of an external force), cognition (e.g., impaired attention, verbal memory, and social cognition), volition (e.g., loss of motivation), affect (e.g., blunted emotional expression), and behaviour (e.g., behaviour that appears bizarre or purposeless, unpredictable or inappropriate emotional responses that interfere with the organisation of behaviour). Psychomotor disturbances, including catatonia, may be present. Persistent delusions, persistent hallucinations, thought disorder, and experiences of influence, passivity, or control are considered core symptoms. Symptoms must have persisted for at least one month in order for a diagnosis of schizophrenia to be assigned. The symptoms are not a manifestation of another health condition (e.g., a brain tumour) and are not due to the effect of a substance or medication on the central nervous system (e.g., corticosteroids), including withdrawal (e.g., alcohol withdrawal).'

1. Dr van Hattem explained that he reached this diagnosis on the basis of Mr Thomas's history and the symptoms identified by Mr Thomas and observed by Dr van Hattem. These symptoms are auditory hallucinations (which Mr Thomas described as occurring every day), delusions (concerning matters involving numbers and letters including the 'golden ratio') and negative symptoms (including blunting affect, social withdrawal and amotivation). Mr Thomas's history was indicative of Mr Thomas showing signs of developing a mental illness in his early teens.[52]
2. At the time of preparing his report, Dr van Hattem had reviewed the transcript of the record of interview. Dr van Hattem observed the electronic record of interview when it was playing in court during the trial.[53] Dr van Hattem observed some of the symptoms referred to above in the electronic record of interview, including Mr Thomas's references to auditory hallucinations, references to 'golden ratios' and his blunt affect and very matter of fact responses to questions at times.[54]
3. Dr van Hattem's report states that Mr Thomas's schizophrenia has taken a chronic, continuous course and has been resistant to first-line treatments, with Mr Thomas's symptoms improving since the introduction of clozapine and after a course of electro convulsive therapy.[55] However, Mr Thomas is likely to require ongoing, assertive mental health care.[56]
4. Dr van Hattem agreed with Dr Brett's conclusion that Mr Thomas was suffering from paranoid schizophrenia, which is a sub-type of schizophrenia where the predominant symptoms are auditory hallucinations and delusions and less so the negative symptoms of schizophrenia.[57]
5. Dr van Hattem's report also states that some of Mr Thomas's symptoms were self-perpetuating:[58]

He was paranoid of the services that were trying to provide him with treatment. This reduced his cooperation with their care. Unfortunately, Mr Thomas also experienced significant side effects to several medications, which further entrenched the idea that medical professionals could not be trusted.

1. Dr van Hattem's opinion as to whether Mr Thomas was suffering from schizophrenia at the time of Edward Thomas's death is as follows:[59]

It is my opinion that Mr Thomas was suffering the symptoms of severe and untreated schizophrenia at the time of the index offence. He was hearing auditory hallucinations in the form of voices encouraging and commanding him to kill his father. He formed a delusional belief that his father's health was significant [sic] worse than it had been in reality, and a further delusional belief that it was his duty to end his father's suffering by ending his life.

1. In terms of the relevant capacities, Dr van Hattem did not consider that Mr Thomas's schizophrenia deprived him of the capacity to understand what he was doing when he killed Edward Thomas. Dr van Hattem was of the opinion that Mr Thomas knew what he was doing.[60]
2. However, Dr van Hattem concluded that Mr Thomas's schizophrenia did deprive him of the capacity to know that he ought not to do the act. In Dr van Hattem's opinion, because of his illness Mr Thomas was entirely of the belief that he should and must act in the way that he did.[61] Dr van Hattem concluded that Mr Thomas believed that he had no choice but to end his father's life in order to end his perceived suffering, and that belief was constantly reinforced by auditory hallucinations.[62] Dr van Hattem's evidence is that Mr Thomas believed that performing the acts he did was the only correct course of action that he could follow.[63]
3. Dr van Hattem reviewed the report of Dr Brett after he had prepared his own report. Dr van Hattem was asked about whether he considered that Mr Thomas's schizophrenia deprived him of the capacity to control his actions and was asked about Dr Brett's opinion in this regard. Dr van Hattem explained that in his opinion, this was the most nuanced of the three capacities in Mr Thomas's situation, and it was difficult to interpret Mr Thomas's answers. Dr van Hattem was of the view that based on what Mr Thomas told him during their sessions, Mr Thomas wanted to do what he was doing and was not trying to stop himself from doing so. Mr Thomas explained the voice he heard to Dr van Hattem as not being in the form of a direct command, which is why Dr van Hattem is not satisfied that Mr Thomas was deprived of the capacity to control his actions. However, Dr van Hattem noted that Mr Thomas's description of the voice to Dr Brett and in the police interview appeared to be different, and this may explain the differences in opinion between himself and Dr Brett.[64]

Consideration and findings Finding as to whether Mr Thomas did kill Edward Thomas

1. Mr Thomas has made a formal admission under s 32 of the Evidence Act that he caused the death of Edward Thomas.
2. Mr Thomas has also agreed the content of the Statement of Case which states that Mr Thomas entered Edward Thomas's house and whilst Edward Thomas was sitting in a chair, hit Edward Thomas in the back of the head with a frying pan and then put Edward Thomas in a chokehold. Mr Thomas and Edward Thomas then struggled on the ground for about 30 or 40 seconds during which time Mr Thomas gouged out Edward Thomas's eyes. Mr Thomas then retrieved a kitchen knife with a serrated blade and used it to slit Edward Thomas's throat. Mr Thomas then held Edward Thomas's hand as he died.
3. Mr Thomas also admits to the killing, and the above details regarding it, in the record of interview and told other police officers when he arrived at the Mandurah police station what he had done.
4. I am therefore satisfied beyond a reasonable doubt, and I find, that Mr Thomas did kill Edward Thomas.

Findings as to whether Mr Thomas had a mental impairment

1. In order to determine whether the killing of Edward Thomas was unlawful, it is necessary to consider Mr Thomas's defence under s 27 of the Criminal Code.
2. I have first considered whether Mr Thomas was suffering from a mental impairment for the purposes of s 27 of the Criminal Code at the time he killed Edward Thomas.
3. The evidence of both Dr Brett and Dr van Hattem is that at the time of the death of Edward Thomas, Mr Thomas was suffering from undiagnosed chronic treatment resistant paranoid schizophrenia. Mr Thomas's symptoms included auditory hallucinations, delusions and negative symptoms (blunting affect, social withdrawal and amotivation). Both Dr Brett and Dr van Hattem concluded that Mr Thomas had been experiencing schizophrenia for some time prior to the offence, but it had not been diagnosed or treated. Both Dr Brett and Dr van Hattem reached their respective conclusions independently.
4. The State does not dispute that schizophrenia is a mental illness for the purpose of s 27 of the Criminal Code or that Mr Thomas was suffering from that mental illness at the time of the offence.[65]
5. There is no submission that I should make any findings contrary to the expert evidence of Dr Brett or Dr van Hattem, and I am satisfied that there is no evidence before the Court that contradicts or calls into question the expert evidence. I therefore accept the evidence of Dr Brett and Dr van Hattem.
6. I am therefore satisfied on the balance of probabilities, and I find, that Mr Thomas was suffering from a mental impairment at the time he killed Edward Thomas, that mental impairment being chronic treatment resistant paranoid schizophrenia.

Findings as to whether Mr Thomas's mental impairment deprived him of any of the required capacities

1. I now turn to consider whether Mr Thomas's mental impairment deprived him of any of the capacities contained in s 27(1) of the Criminal Code. It is only necessary for Mr Thomas to establish that his mental impairment deprived him of one of the three capacities referred to in s 27 of the Criminal Code.
2. Dr van Hattem and Dr Brett were both of the opinion that Mr Thomas's mental impairment did not deprive him of the capacity to understand what he was doing when he did the act that caused the death of Edward Thomas. It is not submitted otherwise by either counsel.
3. However, both Dr Brett and Dr van Hattem were of the opinion that Mr Thomas's mental impairment did deprive him of the capacity to know that he ought not to do the act that caused the death of Edward Thomas. As explained by Dr van Hattem, the effect of Mr Thomas's schizophrenia was that Mr Thomas believed that performing the acts he did was the only correct course of action that he could follow.
4. The State does not dispute that at the time of the offence, Mr Thomas's mental illness deprived him of the capacity to know that he ought not to do the act which caused the death of Edward Thomas.[66] The State does not submit that I should make any findings contrary to the expert evidence of Dr Brett or Dr van Hattem, and I am satisfied that there is no evidence before the Court that contradicts or calls into question the expert evidence. I therefore accept the evidence of Dr Brett and Dr van Hattem.
5. Dr Brett was also of the view that Mr Thomas's mental impairment deprived him of the capacity to control his actions. Dr van Hattem explained that this question is more nuanced and difficult to ascertain. Dr van Hattem did not reach this conclusion given the differences between what Mr Thomas told Dr Brett and what Mr Thomas told Dr van Hattem. Ultimately, it is not necessary for me to form a view on this capacity, given the unequivocal evidence of both experts that Mr Thomas's mental impairment deprived him of the capacity to know that he ought not to do the act that caused the death of Edward Thomas.
6. I am therefore satisfied on the balance of probabilities, and I find, that Mr Thomas's state of mental impairment deprived him of the capacity to know that he ought not to do the act which caused the death of Edward Thomas.

1. In light of my findings regarding s 27 of the Criminal Code, it is not necessary for me to make findings in relation to the element of intent. However, in the present case, Mr Thomas has formally admitted that he intended to kill Edward Thomas and has made similar admissions in his record of interview. The conclusion of the two expert witnesses is also that Mr Thomas was not deprived of the capacity to understand what he was doing. Therefore, if it were necessary to determine the question of intent, I would be satisfied, beyond reasonable doubt, that Mr Thomas intended to kill Edward Thomas.

1. I find the accused, Declan Sean Thomas, not guilty of the murder of Edward Charles Thomas on account of mental impairment.

Orders under the Criminal Law (Mental Impairment) Act 2023

1. In light of the verdict, I am required to deal with Mr Thomas under the provisions of the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act) and I am required to make an order under pt 5 of the CLMI Act.[67]
2. In accordance with s 46(1) and s 46(2)(a) of the CLMI Act, as the offence of murder is a serious offence,[68] I must make a custody order in respect of Mr Thomas unless I am satisfied on the balance of probabilities that any risk that Mr Thomas appears to present to the safety of the community can be adequately managed under a community supervision order.
3. It is not submitted, appropriately in my view, by either counsel that the criteria for making an order other than a custody order is satisfied here. There is no evidence before me which allows me to be satisfied on the balance of probabilities that the risk Mr Thomas presents to the safety of the community can be adequately managed under a community supervision order. Mr Thomas has remained in custody since 12 July 2020 and continues to experience symptoms associated with his schizophrenia and remains subject to ongoing treatment in this regard.
4. In accordance with s 50 of the CLMI Act, when making a custody order I am required to set a limiting term for the custody order as follows:

(2) If a court makes a custody order, the court must set a limiting term for the order, being the best estimate of the term of imprisonment or term of detention that the court would, in all the circumstances, have imposed if -

(a) the court were sentencing the person for the offence; and

(b) any mental impairment of the person were not taken into account.

(3) For the purposes of subsection (2), the court must assume that -

(a) the person had pleaded guilty to the charge at the earliest opportunity; and

(b) there is no other option but to impose a term of imprisonment or term of detention.

(4) The limiting term commences on the day on which the order is made unless the court, after taking into account any time that the person has already spent in custody in relation to the offence, orders that the term be taken to have commenced on an earlier day.

1. The penalty for the offence of murder is contained in s 279(4) of the Criminal Code:

(4) A person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless -

(a) that sentence would be clearly unjust given the circumstances of the offence and the person; and

(b) the person is unlikely to be a threat to the safety of the community when released from imprisonment,

in which case, subject to subsection (5A), the person is liable to imprisonment for 20 years.

1. In the decision of The State of Western Australia v Chokolich,[69] Quinlan CJ considered the requirements imposed on a court by s 50 of the CLMI Act and the proper construction of that provision in the context of an offence of murder. I respectfully adopt and apply those principles here. The significant principles applicable in the present case are:

(a) I am required to determine the 'best estimate' of the term of imprisonment that a court 'would, in all the circumstances' have imposed based on certain assumptions. This task is necessarily a hypothetical exercise;[70]

(b) the use of the word 'would' signifies that I am required to 'stand in the shoes' of a hypothetical sentencing court and apply the relevant principles contained in the Sentencing Act 1995 (WA), including in s 6 of that Act, in light of ordinary sentencing principles;[71]

(c) one of the assumptions imposed by s 50 of the CLMI Act is that in setting the limiting term, I am not to take into account Mr Thomas's mental impairment. That assumption (or counter-factual) may be relevant to the circumstances of the offence, mitigatory factors and potentially facts that might have resulted in a longer term of imprisonment;[72]

(d) the other assumptions imposed by s 50 of the CLMI Act are that I must assume that Mr Thomas has pleaded guilty to the charge of murder, including all necessary elements of the offence, at the earliest opportunity.[73] I must also assume there is no other option but to impose a term of imprisonment;

(e) subject to the exceptional circumstances identified in s 279(4)(a) and s 279(4)(b) of the Criminal Code, the sentence of life imprisonment for murder is a mandatory sentence. Therefore, on its proper construction s 50 of the CLMI Act requires that if, on the assumptions required by that section, the mandatory term of life imprisonment would have been imposed, then the limiting term must be set as the duration of that mandatory term;[74]

(f) given the exceptional nature of a sentence other than life imprisonment for murder generally, the circumstances in which a limiting term on a charge of murder will be set as a term other than the duration of the person's life will be equally exceptional. This is particularly the case given the statutory requirement to exclude from consideration the accused's mental impairment. This is because an accused's mental impairment at the time of committing an offence might otherwise have been the principal reason for concluding that it would have been 'clearly unjust given the circumstances of the offence and the person' to have imposed a sentence of life imprisonment;[75] and

(g) where the court's 'best estimate' of the sentence that the sentencing court would have imposed is life imprisonment, s 50 of the CLMI Act does not permit, or require, the court to determine the minimum non-parole period that would have been set if the person had been sentenced to life imprisonment.[76]

1. It was not submitted by either counsel that a limiting term of anything other than a sentence of life imprisonment was appropriate for Mr Thomas.
2. In my assessment, there can be no doubt that if Mr Thomas had pleaded guilty to the charge of murder, and the court sentencing him did not take into account his mental impairment, that such court would have imposed a sentence of life imprisonment.
3. The circumstances of the offending, leaving aside Mr Thomas's mental impairment, were objectively horrifying. Edward Thomas's last moments were spent engaged in a struggle with his son. Edward Thomas would have been in pain from the blows from the frying pan, his eyes being gouged and the use of the knife to slit his throat. There was no rational explanation for the offending.
4. On the assumption that Mr Thomas was criminally responsible for his actions, the seriousness of the offending would require a term of life imprisonment. The only applicable mitigating factors, being the assumed early guilty plea and Mr Thomas's limited criminal record, would not carry any significant weight in light of the seriousness of the offending.
5. I am therefore satisfied that there would have been no basis to conclude that it would have been 'clearly unjust given the circumstances of the offence and the person' to impose a term of life imprisonment.[77] The only factor which could conceivably have supported such a conclusion is Mr Thomas's mental impairment, which under s 50 of the CLMI Act I cannot take into account.
6. For the above reasons, I am satisfied that the best estimate of the term of imprisonment that the court would, in all the circumstances, have imposed based on the assumptions outlined in s 50 of the CLMI Act is a term of life imprisonment. I therefore set the limiting term of Mr Thomas's custody order as the duration of Mr Thomas's life. That limiting term is to commence on the date Mr Thomas was taken into custody, being 12 July 2020.

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

[1] The State of Western Australia v Thomas [2023] WASC 405.

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

[12] Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 [2] - [13]; [124] ‑ [125] and the authorities cited therein.

[15] Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500, 517; Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 [18] - [20], [24] ‑ [25] (Kennedy J); [55] ‑ [56] (Wallwork J); [103] (Scott J).

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

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

[19] The State of Western Australia v Jones [2018] WASC 395 [43].

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

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

[22] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 367 - 368.

[23] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 370 - 371.

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

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

[26] Evans v The State of Western Australia [2010] WASCA 34, [60].

[27] The State of Western Australia v Taylor [2021] WASC 470 [50] ‑ [52].

[28] The State of Western Australia v Taylor [2021] WASC 470 [53].

[68] CLMI Act Schedule 1, subdivision 3, item 9.

[69] The State of Western Australia v Chokolich [2024] WASC 346 [60] - [99].

[70] The State of Western Australia v Chokolich [2024] WASC 346 [60].

[71] The State of Western Australia v Chokolich [2024] WASC 346 [61] - [62].

[72] The State of Western Australia v Chokolich [2024] WASC 346 [66].

[73] The State of Western Australia v Chokolich [2024] WASC 346 [72].

[74] The State of Western Australia v Chokolich [2024] WASC 346 [78] - [81].

[75] The State of Western Australia v Chokolich [2024] WASC 346 [81].

[76] The State of Western Australia v Chokolich [2024] WASC 346 [89].

[77] Gore v The State of Western Australia [2017] WASCA 163 [40].