TURNER -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 158 (3 September 2021)

4 The appellant and Ms Thomas were told by a court notice where and when they were to attend for the pre-trial conference: 'the Magistrates Court held at 21 Reid Promenade on 20 December 2016 at 10 am'.

5 The appellant went to the court at the right time in order to participate in the conference. He arrived ahead of Ms Thomas.

6 He carried a ring-back folder with papers for the conference. However, he also secretly carried a large kitchen knife, which he had taken from his brother's house. It was hidden in his clothes or in the folder.

7 Before the conference started the appellant was aware that Ms Thomas was there. After she sat at the court counter for a time he looked for her and then looked at her, moving from his seated position to do so.

8 He and Ms Thomas were called into the conference room by the registrar. The appellant and Ms Thomas sat on one side of the desk, separated by a chair. The registrar sat on the other side, facing them. As directed by the registrar, the appellant was on the registrar's left and Ms Thomas on his right.

9 There was an exchange between the registrar and the appellant and Ms Thomas, in which each of them responded. That included a discussion to the following effect:[2]

Registrar: Have you been in a relationship?

Ms Thomas Yes, for 6 years.

Registrar Were the loans made during the relationship?

Ms Thomas: Yes.

The appellant: Well, look, we used to loan each other money during the relationship and we'd repay each other back during the relationship.

Registrar: Well, look, you know, it appears that this is a matter for the Family Court because they determine property settlement and financial matters.

The appellant: Well, as we're here can we sort it out now?

Registrar: Well, we can if you both agree. [To Ms Thomas] Do you wish to make any sort of an offer to settle this matter?

Ms Thomas: No, that's for the Family Court to sort out. My legal advice is that the Family Court and not Joondalup Court has jurisdiction. I have a statement of defence that I wish to file that says that the Joondalup Court doesn't have jurisdiction.

Registrar: As we can't settle the matter here, if you wish, we can have this matter dismissed by consent and then you can proceed to lodge a claim with the Family Court.

The appellant: Okay (or Okay then).

10 The registrar then wrote out an order that the matter was dismissed by consent. He told the appellant and Ms Thomas that the claim was dismissed and that completed the matter.

11 The registrar got up to open the door and let them out, turning his back to them. He heard a loud scream. It was a female voice. That scream was so loud it alarmed people waiting outside in the registry area. The registrar turned around.

12 The appellant had moved from his chair, and was standing in front of Ms Thomas, facing her and leaning over her. She was still seated.

13 The appellant had taken hold of Ms Thomas with his left arm around her right shoulder, and down her back. The registrar saw the appellant's right arm moving laterally, going in and out. He thought that the appellant was 'roughing her up'.

14 The registrar said 'No. No, mate', and started to step around the desk. The appellant turned round quickly, and the registrar saw a bloodstained knife in his right hand. The appellant lowered the knife down, then threw it forward, away from his body.

15 The appellant stabbed Ms Thomas six times with the knife, to her face, head, neck and shoulder. One stab wound to the neck penetrated about six centimetres and severed the carotid artery.

16 The registrar ran out of the conference room, and signalled to others to get away. As he turned to run back to the room, the door opened and the appellant walked out. He signalled to the registrar with his right hand, a gesture indicating he was not going to do anything. He then sat down with his back against the wall, and emptied his right pocket onto the floor. There he remained until police took him into custody.

17 While paramedics were tending to Ms Thomas someone asked how old Ms Thomas was. The registrar asked the appellant, who answered either 32 or 33.

18 The wound to Ms Thomas' carotid artery caused massive and immediate blood loss, leading to her death.

19 The appellant challenges the verdict that he was guilty of murder, seeking a retrial.

20 The ground of appeal is that there was a miscarriage of justice when the learned trial judge failed to adequately or at all direct the jury that evidence going to insanity, but not establishing that, was relevant and admissible on the issue of specific intent.

21 As will appear, in our view the appeal must be dismissed. In so concluding we put to one side the fact that experienced trial counsel for the defence did not seek the direction that is now urged.

22 The appellant was charged with murder. At his trial the sole ground of defence was that at the time the fatal wound was inflicted the appellant was of unsound mind. The sole basis for that defence was that he suffered from dissociative seizures and was experiencing one at the time. In fact, the appellant contended that he experienced a dissociative seizure that day which lasted about 45 minutes, covering the entire time between when he left home to go to the pre-trial conference and when he later found himself in custody at the police station.

23 The defence as presented to the jury at trial turned on whether the appellant could establish on the balance of probabilities that he was of unsound mind at the time the fatal wound was delivered. To succeed in establishing unsound mind, the defence had to establish that the appellant suffered a dissociative seizure at the time he stabbed Ms Thomas.

24 If this was established, then s 27(1) of the Criminal Code 1913 (WA) (the Code) applied. It relevantly provides that a person is not criminally responsible for an act on account of unsoundness of mind if at the time of doing the act he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act.

25 That issue was resolved against the appellant by the jury. There is no challenge to that finding.

26 That brings s 26 of the Code into focus. It provides that: 'Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved'.

27 Since the contrary was not proven, s 26 of the Code has the effect that the appellant was deemed to be of sound mind at all relevant times.

28 Finally, at the trial counsel for the appellant raised a potential defence under s 23A(2) of the Code. It relevantly provides that a person is not criminally responsible for an act which occurs independently of the exercise of the person's will. The trial judge ruled that the defence did not arise on the evidence and therefore should not be left to the jury. That ruling is not challenged.

29 As was conceded by counsel appearing for the appellant before this court, that means the appeal must be approached on the basis that at the relevant time the appellant:

(b) did not have such a state of mental impairment as to deprive him of capacity:

30 Section 279(1) of the Code relevantly provides that:

If a person unlawfully kills another person and -

(a) the person intends to cause the death of the person killed or another person; or

(b) the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or

...

the person is guilty of murder.

31 Section 279(1)(b) refers to the subjective intention of an accused to cause bodily injury and to the objective nature of that bodily injury. The provision does not refer to the accused's action or intended action to give effect to his or her subjective intention to cause a bodily injury. The accused must subjectively intend to cause a bodily injury and that bodily injury must be of such a nature as objectively to endanger, or objectively be likely to endanger, the life of the person killed or another person. In other words, the bodily injury which is subjectively intended is the bodily injury which must be evaluated to determine whether it is of such a nature as objectively to endanger, or objectively be likely to endanger, life. See Wongawol v The State of Western Australia;[3] Schmidt v The State of Western Australia;[4] Clarke v The State of Western Australia;[5] Birdsall v The State of Western Australia.[6]

32 Under s 280 of the Code, if a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter. Manslaughter is an alternative verdict on an indictment charging an accused with murder.

33 While the appellant's trial counsel did not seek to defend the case on the basis that the State had not established the relevant intention, it remained necessary for the jury to be satisfied, beyond reasonable doubt, of that fact. The ground of appeal concerns the trial judge's direction as to that issue.

Expert evidence concerning a dissociative state

34 Two expert witnesses were called at the trial. Only one was an expert on the issue of dissociative seizures.

35 Dr Brooker, a clinical neuropsychologist, conducted an examination of the appellant in May 2016. During one of the tests she observed the appellant while he was copying simple line drawings. She described what she saw:[7]

... he was completing the first copy of the figure which is a triangle, a simple triangle. And I expected him to move onto the next copy of a shape and he didn't. He was just - he had the pencil like this in his hand and was just kind of staring straight ahead. ... It was like [a] blank [stare].

36 That lasted about five to 10 seconds before she said something to him and he moved onto the next task.

37 In cross-examination she said she saw him staring blankly for a couple of seconds.[8] When asked if she described it as an 'absence seizure', Dr Brooker was quick to point out that she had no qualifications as a neurologist, and was simply reporting what she saw.

38 Defence counsel at the trial accepted that Dr Brooker had no qualifications to diagnose 'absence seizures', and that no such evidence was being led from her.[9]

39 Thus understood, her evidence was not expert evidence at all, but merely evidence of what she observed.

40 Dr Yogarajah, a specialist in neurology, was called by the defence. His area of specialty was epilepsy and functional neurological disorders. For the purpose of giving evidence he had been given: (i) various medical records concerning the appellant;[10] (ii) a factual overview of what occurred at the Joondalup Court, including that the appellant said he had no recollection of what occurred; (iii) the statement of Mr Clarke, the registrar; (iv) a number of the statements from lay witnesses, as to what they observed about the appellant;[11] (v) a transcript of the appellant's evidence at the trial; (vii) transcripts of the evidence of the appellant's family;[12] and a transcript of Dr Brooker's evidence. He had also interviewed the appellant by telephone, though he had not had a face-to-face examination.[13]

(a) the appellant evidently sustained a concussion head injury at work in 2015;

(b) the video EEG monitoring done on the appellant was normal;[14] and the results of an MRI examination were normal;

(c) the seizures suffered by the appellant were not epileptic seizures;[15]

(d) dissociative seizures, also called functional seizures, are seizures that to the untrained eye look like epileptic seizures, but are not associated with abnormal electrical activity in the brain that is the usual cause of an epileptic seizure;[16]

(e) whilst there was not a full understanding of the cause of such seizures, traditionally they were thought to be psychologically mediated disorders, triggered by an emotional reaction to something that triggers a physical effect;[17]

(f) dissociative seizures involve an unconscious reaction in which the person has no control; they are involuntary in most cases;[18]

(g) whilst a person in a dissociative seizure can retain awareness or have a have partial loss of awareness; it varies from person to person;[19]

(h) dissociative seizures can present with loss of control over bodily movements, but typically they present in one of two ways: (i) with a lack of movement and vacancy; or (ii) with excess uncoordinated movements, that is, stiff, shaking of all four limbs and of the body;[20]

(i) to the untrained eye, a dissociative seizure can look very similar to an epileptic seizure, but sometimes there can be subtle differences; for example, in an epileptic seizure, most of the time there will be no awareness, whereas with a dissociative seizure, there may well be some awareness;[21]

(j) in the case of someone having functional seizures with blank states, essentially they may be very still, staring, and unresponsive;[22]

(k) the events or symptoms reported by the witnesses in their statements and that the appellant reported (short-lived blank or vacant spells) would be consistent with dissociative seizures;[23]

(l) the duration of a dissociative seizure varies from person to person, but some can last hours, and some can last minutes or seconds;[24]

(m) it is possible to experience a dissociative seizure accompanied by lack of memory of the event;[25]

(n) he had never come across dissociative seizures accompanied by violent acts;[26] that is not a typical presentation of such seizures;[27] such a link was 'highly improbable'; in his experience and in the literature that was not how dissociative seizures presented;[28]

(o) typically, a dissociative seizure tends to be one of two sorts, either: (i) excess movements, stiff, shaking violently like you might expect in a typical epileptic seizure; or (ii) episodes of stillness, vacancy, and a lack of responsiveness; those would be the most common presentations, and they would certainly encompass all the types of patients that he had seen and that he was aware of colleagues seeing;[29] and

(p) someone experiencing a dissociative seizure can perform automated acts but those acts would be very simple, non‑goal‑directed acts; they would not be complex, nor purposeful, but rather very simple and repetitive, but no more than that.[30]

42 Dr Yogarajah was asked if he could exclude the prospect that the appellant was suffering a dissociative seizure at the time of the stabbing. He responded:[31]

In my medical opinion, based on my experience, I do not think that behaviour is consistent with a dissociative seizure.

Can you absolutely exclude it? --- As far as one can make a medical diagnosis.

43 Dr Yogarajah was asked to clarify why he felt able to exclude dissociative seizure as applicable to what the appellant did at the Joondalup Court:[32]

All right. Well, the facts that the State accepts - the State contends for are that Mr Turner took a knife into the court complex. That's the first proposition I'm putting. And then took a knife into the pre-trial conference. Did you understand that to be the State case?---Yes.

Now, your answer to my learned friend ... when she asked you could you exclude the possibility that the incident ... was a dissociative seizure, your answer was, 'It is highly improbable that the incident was a dissociative seizure', is that correct?---That is correct.

Because it did not involve the sort of behaviours that you described to the court and the members of the jury before we rose, did it?---That's correct. Yes.

It involved different sort of behaviours quite distinct from the behaviours that you described, didn't it?---It did. And quite distinct from the seizures described previously by both him and witnesses to his seizures.

Indeed. So again I come back to the proposition I put to you which you acknowledged to my learned friend. It is highly improbable that the incident was a dissociative seizure?---Yes, I agree.'

44 In the third paragraph of that passage, the reference to behaviours described 'before we rose' was to his evidence that the acts that can be performed during a dissociative seizure are very simple, non‑goal‑directed, repetitive acts, and not complex or purposeful acts: see [41](p) above.

45 Re-examination of Dr Yogarajah elicited this response as to why he considered it highly improbable that the appellant was suffering a dissociative seizure on the day of the stabbing:[33]

In relation to your conclusion that it's highly improbable that Mr Turner was suffering from a disassociated seizure, was ... a factor in that because you understood that what occurred was a purposed, goal-driven behaviour by Mr Turner by deliberately taking the knife to court and concealing the knife? Was that a factor within your ultimate conclusion?---That was one of several factors, so there were several other factors that would lead me to that conclusion.

And did other factors include the fact that he hadn't exhibited this sort of behaviour before?---Yes, that would be another factor, so it's not consistent with previous episodes he's described or other people have described. Another factor would be the fact that ... as I alluded to earlier, patients presenting with these kinds of dissociative or functional seizures typically present in one of two ways. Either vacant, withdrawn, unresponsive, still, or violent shaking of parts or whole of their body on the ground, as you might think of an epileptic seizure to present in that way. So ... that's typically how these episodes present.

What was to be drawn from Dr Yograjah's evidence?

46 Dr Yogarajah was the only expert as to dissociative seizures called at the trial. In our view, his evidence established, and the jury plainly accepted, that:

(a) taking into account the evidence from lay witnesses as to the appellant's history of experiencing seizures and varying periods of vacant staring, it was highly improbable that the appellant was suffering from a dissociative seizure at the time he stabbed Ms Thomas;

(b) such seizures typically present in one of two ways: either the person is vacant, withdrawn, unresponsive and still; or alternatively, the person experiences violent shaking of parts or the whole of their body, on the ground, as in an epileptic fit; neither was the case with the appellant;

(c) a person suffering such a seizure cannot perform tasks that involve purposed, goal-driven behaviour, but only very simple and repetitive acts; the appellant's behaviour was complex, purposed and goal-driven;

(d) on the facts given to him, the appellant's actions at the Joondalup Courthouse were inconsistent with the appellant having a dissociative seizure, and inconsistent with the appellant's previous history of seizures; and

(e) he was able to exclude the presence of a dissociative seizure '[a]s far as one can make a medical diagnosis'.

47 It is important to understand the evidence as to the appellant's conduct during the relevant times on 20 December 2016. As will appear, the jury were instructed to take into account the totality of the evidence as to those circumstances when assessing whether the relevant intent was formed. What the evidence reveals is this:[34]

(a) before he left home[35] for the courthouse the appellant took a knife from the knife-block in his brother's house;[36] he did not take one of his own knives, which he had in that house;

(b) he hid the knife from sight, either in his clothing or in the folder he carried;

(c) the appellant went to the appointed place at the appointed time for the compulsory conference;

(d) once at the courthouse the appellant sat in a corner, on one side of a solid partition wall; at all times the knife remained concealed;

(e) when Ms Thomas was at the court counter she looked in the appellant's direction three times, the last as she got up to walk to where she eventually sat, on the opposite side of the partition wall to the appellant;

(f) at the same time as Ms Thomas got up from the counter the appellant turned his head to the left and looked in the direction of the counter; within a few seconds the appellant got up and leant forward to look around the partition at where Ms Thomas had gone;

(g) then, two and a-half minutes later, the appellant stood up, walked around the end of the partition wall, and looked at where Ms Thomas was sitting; she was then looking down; he then returned to sitting on the other side of the partition;

(h) when the registrar called his matter, the appellant got up and walked into the conference room; he took the folder with him;

(j) he responded to questions asked by the registrar; he identified features about his claim (the loans to Ms Thomas), and the nature of their previous loan arrangements; he made his own proposal to settle matters that day; he agreed that the matter had to go to the Family Court;

(k) he kept the knife hidden until the registrar turned to open the door;

(l) he then stood up and moved a short distance, past the middle chair, to where Ms Thomas was sitting;

(m) he then held her around the shoulder with his left arm while stabbing her with the knife in his right hand;

(n) he stepped back away from where Ms Thomas was, turning towards her;

(p) he opened the door himself and left the conference room;

(q) as he exited the room he signalled to the registrar with his right hand;

(t) he answered the registrar when asked for Ms Thomas' age;

(u) he stood up on his own when asked by the police to do so;

(w) he made evident responses to the police when asked his name and when they spoke to him otherwise.

48 There is no doubt that the jury could find that that sequence of the appellant's actions consisted of purposed, goal-driven behaviour. At no time, especially once his conference was called, did he exhibit either of the two typical presentations of dissociative seizures referred to by Dr Yogarajah. Once in the conference room the appellant plainly responded to questions about the nature and fate of the proceedings, and proffered his own proposal as to settlement.

49 All of that evidence justified the jury's conclusion, which counsel appearing for the appellant before this court conceded, that the appellant was not, in fact, suffering from a dissociative seizure when he killed Ms Thomas.

50 Given the evidence of Dr Yogarajah it was not surprising that no attempt was made to challenge the conclusion that the appellant was not, in fact, suffering from a dissociative seizure that day.

51 Counsel explained that the reference in the ground of appeal to 'evidence going to insanity, but not establishing that', was a reference to several pieces of evidence which, taken together, should have been left to the jury and should have caused the jury to doubt that the appellant was capable of forming either of the two specific intents. Those two intents were (i) intent to cause death, or (ii) intent to cause bodily injury of such a nature as to endanger, or to be likely to endanger, the life of the person killed.

(a) the frenzied and haphazard nature of the seven stab wounds;

(b) only one wound was fatal, yet the appellant had been trained in the lethal use of a knife under a method known as the Fairbairn method;

(c) a 'Tupperware kitchen knife' was used when he had other knives of his own available;

(d) the appellant's 'numerous, non-lethal and essentially ineffective non-fatal stab wounds' were consistent with Dr Yogarajah's description of excess uncoordinated movements during a dissociative seizure;

(e) the location of the incident - in a public, well secured venue, with police present - was indicative of lack of relevant intent, because the appellant was unlikely in that scenario and place to have formed the requisite intent; and

(f) the appellant's evidence that he had no recollection of the events at the time of the stabbing was consistent with the evidence of Dr Yogarajah that in a dissociative state one can have a partial loss of awareness.

53 Counsel submitted that the jury were not properly directed that they could take this evidence into account in determining whether the appellant had one of the specific intents.[37] He submitted that, while the jury might not have been satisfied on the balance of probabilities that the appellant was suffering from a dissociative state when he killed Ms Thomas, the evidence may have given rise to a reasonable doubt as to whether that was the case and whether the appellant had one of the specific intents.[38]

54 In this context, counsel submits that the trial judge ought to have directed the jury that they could take the matters referred to at [52] above into account when deciding whether the State had proved, beyond reasonable doubt, that the appellant had one of the relevant[39]ntentions.39

55 For the reasons which follow we are of the view that the directions were adequate. Taken as a whole, the trial judge's direction conveyed to the jury that they were to have regard to the whole of the evidence, including the evidence referred to at [52] above, in deciding whether the State had proven the requisite intention beyond reasonable doubt. Even if the trial judge's direction had not done so, it would not have given rise to any miscarriage of justice. That is because the evidence of which complaint is made, considered in light of other evidence led at trial, was not capable of giving rise to any reasonable doubt as to the appellant's capacity to form the requisite intent, or as to whether he did form the requisite intent.

56 Given that the appeal challenges the efficacy of the trial directions it is necessary to set out precisely what was said to the jury.

57 The summing up included the standard directions as to deciding only on the evidence in the case, that the jury were the sole arbiters of the facts, and that in respect of experts the jury were to decide what of that evidence they accepted or rejected. And they were reminded a number of times that their deliberations had to take into account all the evidence in the case, for example:[40]

It is very important for you to remember that the question for you to consider is whether on all the evidence before you the State has proved the charge against the accused beyond a reasonable doubt.

58 When directing on how to draw inferences the trial judge told the jury:[41]

... the evidence is not looked at in a piecemeal fashion. You don't look at each single piece. You put together all of the relevant evidence that bears upon whether the inference can be drawn and you say, 'Well, what inference is available from all this evidence when it is together?' (emphasis added)

59 The jury were then directed that the question of intent was a matter of inference, and in that respect the trial judge identified a number of factors that were relevant:[42]

Now, the State relies upon - that the accused, on the State case, possessed the knife. He inflicted multiple stab wounds. A number of the wounds were directed to the head area, namely the neck and to the ear. The State says the taking of the knife, secreted and using it in that way, to inflicting the wounds to the upper area of the body, when you put the inferences together, the only reasonable inference is that the accused had the intention either to kill or to inflict an injury that objectively would endanger life or likely to endanger life.

Now, the defence would point to other facts. Look at the type of knife used. Mr Turner had another knife and he had the actual W.E. Fairbairn type knife. Where did the knife come from? Was it secreted? Look at the wounds. There wasn't one single lethal wound inflicted by a knife you'd expect him to take. That when you look at the number of wounds and what occurred in there, on the State case, you couldn't infer or find that the only reasonable inference is that Mr Turner had that specific - one of those two specific intentions. And that is an example of an inference that you'll be, in this trial, asked to determine. (emphasis added)

60 The points which we have emphasised in the passage above are some of the very matters which the appellant now contends were not raised with the jury.

61 The jury were told that the appellant had a mental illness, namely the dissociative seizures 'which was ... diagnosed in the expressed opinion of Dr Yogarajah'.[43] Then, a few minutes later, that was reinforced by the trial judge saying: 'The effect of Dr Yogarajah's evidence was that in his opinion Mr Turner suffers from dissociative seizures, and that dissociative seizures are a mental illness'.[44]

62 The trial judge dealt with unsoundness of mind and then commenced directions about the specific intents that had to be considered in the event that the jury were not satisfied that the appellant was of unsound mind. The passage is as follows:[45]

If you find that you are not satisfied on the balance of probabilities the accused was of unsound mind and you are satisfied of the other elements, you then at that point have been satisfied that there's an unlawful killing. You turn then to the final element which - of murder which is the specific intention. It's then that we turn to this, and you would turn to this as triers of the fact.

So let me now turn to the fourth element, which is these two specific intentions. The fourth element is the accused must have had an intention to either kill the deceased, or do a bodily injury of such a nature as to endanger, or be likely to endanger her life at the time the deceased - at the time he did the act of stabbing the neck - the upper lateral area of the neck of Ms Thomas.

A finding that an accused person simply has an intention to harm, hurt, slice someone with a knife without the specific intention is insufficient to convict the accused of murder. An intention is a state of mind. It is to do an act with the purpose of bringing about a particular result or consequence.

Now, you can't step inside a person's mind, so how do you determine intention? You infer an intention from the circumstances in which the death occurred and from the conduct, any words that were spoken at the time or after the accused did the specific acts which caused the death of the deceased; that is, you look at all - the totality of the relevant evidence and ask, can you infer that the accused held one of the two specific intentions at the very time that he inflicted the lethal knife wound to the upper lateral area of the neck of the deceased?

In determining intention, you should consider the factors personal to the accused, including the age, level of intelligence and factors such as that. In some cases a person's act may provide important evidence in determining intention. The State points to the inflicting of a knife to the upper lateral part of the neck of the deceased and refers to the evidence of Mr Clarke. (emphasis added)

63 The parts which we have emphasised in the passage above show that the jury were told to look at the circumstances in which the death occurred, the conduct and words spoken, and that they must examine the totality of the relevant evidence. The evidence to which the appeal is directed was admitted as relevant. None of it was withheld from the jury. At no time were the jury told to ignore any of that evidence, or that its relevance was diminished in some way.

64 Much was made of the sentence 'you should consider the factors personal to the accused, including the age, level of intelligence and factors such as that'. The criticism was that 'personal factors' when qualified by the words 'age' and 'intelligence', emphasised the physical attributes of the appellant and left out of account the dissociative seizures illness.

65 We respectfully disagree. The jury had just been told immediately before that the appellant did, in fact, have a mental illness, namely dissociative seizures. And they had been told that Dr Yogarajah's evidence led to that conclusion. There could hardly have been a factor more personal than that, and it was one which would have been foremost in the jury's mind given the whole thrust of the defence at the trial. In our respectful view, the jury would have clearly understood that, in considering whether to draw the inference of specific intent, they must assess the whole of the relevant evidence, and that evidence included the fact that the appellant had the mental illness.

66 In any event, the trial judge then made the matter clearer in the next passage of directions concerning specific intent:[46]

The State's case then is the very act of stabbing the knife to the neck of the deceased with the injuries sustained to the neck of the deceased supports the finding that the accused had the intention. The State points to the surrounding circumstances and also the evidence of Dr Cooke.

The State also relies for inferences upon the training that Mr Turner had in respect of inflicting a fatal wound using a knife. That is reliant upon the statement of Mr Hogan and of course Mr Turner's own evidence.

The defence says the intention, you cannot be satisfied beyond a reasonable doubt. The defence says look at the manner in which the stab wounds were inflicted and who was inflicting them. They're inconsistent. They're inconsistent with the way Mr Turner was taught and trained to inflict knife wounds.

If this was a man, the defence says, that had a specific intention to kill or inflict an injury that is life-endangering or likely, then he would not have gone about it such as this.

This is not a man who held those intentions at that time and he didn't even take the proper knife. And by that, judging by his own knowledge and his own evidence, he possessed the knife. Rather, he took a kitchen knife. There were multiple wounds which is inconsistent.

I've given you the direction about circumstantial evidence and drawing inferences and here's an example where you could only draw an adverse inference against the accused unless you find the State has proven that the only reasonable inference open is that the accused held that intention. You must be satisfied beyond a reasonable doubt that the accused had one of those two intentions. (emphasis added)

67 Once again, the parts we have emphasised in the above passage are some of the very matters which the appellant urges as having not been raised with the jury. And, once again the jury were reminded of what they had been told about drawing inferences, namely that they had to assess the totality of the evidence.

68 Then the trial judge turned to the question of unsound mind, and what evidence might be considered as to that issue, saying:[47]

Now, what I wish to do now is move to an outline of the evidence - some of the evidence and remind you of it that you may find relevant in your consideration of the unsoundness of mind issue. Obviously it's for you, as I started my summation, to determine what evidence is relevant, and what evidence is important or not important.

69 His Honour then gave a concise summary of the various aspects of the evidence, including witnesses as to the acts at the courthouse, witnesses as to the appellant's seizures, what was said at the conference, what happened immediately after, the appellant's own testimony, his medical history, and that of Dr Yogarajah.[48]

70 That summary was followed by the trial judge telling the jury that:[49]

That is an outline of some of the evidence that you may wish to consider when you are considering the case in this matter, and in particular the element of unlawfulness, that part of it where - whether the accused has proven on the balance of probabilities he was of unsound mind. (emphasis added)

71 In our view, by that statement the trial judge directed the jury to have regard to the totality of the admitted evidence, including that which he had just outlined, in respect of both unsoundness of mind and specific intent. The words 'the case in this matter, and in particular the element of unlawfulness' indicated that, while the evidence referred to at [69] above was particularly relevant to the element of unlawfulness, the jury may wish to consider it when considering any aspect of 'the case in this matter', including the question of specific intent.

72 When the above directions are considered as a whole, it can be seen that the jury were directed that when considering the issue of specific intent, that being a matter of inference:

(a) they should take into account the totality of the relevant evidence that bears upon whether that inference should be drawn;

(b) they should take into account matters such as: (i) the circumstances in which the death occurred, including the appellant's conduct; (ii) the likelihood of it occurring in a public, well secured location; (iii) the type of knife used; (iv) the likelihood that the appellant would take that knife rather than one of his own; (v) the wounds that were inflicted; (vi) that there was not just one single lethal wound inflicted; (vii) the number of wounds; (viii) that the circumstances of the knife used, the manner of stabbing and the wounds inflicted might be inconsistent with the appellant's training; (ix) what occurred in the conference room; (x) that the appellant suffered from dissociative seizures; and

(c) importantly, that the summary of the evidence by the trial judge showed the scope of the matters that the jury might find relevant when considering specific intent.

73 In light of the directions that were actually given, and the fact that the jury were told to take into account all relevant evidence concerning the circumstances in which the acts were inflicted, including that the appellant suffered from dissociative seizures, we are unable to conclude that there was a failure to properly direct the jury in the way the appeal postulates.

74 Even if our conclusion as to the directions were wrong, in our view the evidence referred to by counsel on the appeal, considered in light of the other evidence adduced at trial, is not capable of creating any reasonable doubt that the appellant formed one of the specific intents.

75 Counsel for the appellant before this court embraced this formulation of his contention: the jury might have thought there was a reasonable possibility, not amounting to a probability, that the appellant was suffering from a dissociative seizure at the time he inflicted the stab wounds; therefore the jury could have taken that possibility, not excluded by the State evidence, into account in deciding whether intention was established beyond reasonable doubt.[50]

76 So expressed the contention can only be sustained if there was evidence to support it.

77 The contention here is that the appellant had trained in the Fairbairn method of killing someone with a knife, and that frenzied and haphazard stabbing is directly contrary to that method. Therefore, it is said, the appellant would have stabbed only once and in accordance with the Fairbairn method, and the fact he did not do so raises the possibility that he was in a dissociative state, and did not form one of the relevant intents.

78 In our view this makes entirely too much of the evidence about the appellant's training in the Fairbairn method. What the evidence established was:

(a) in 2004, when he was in his late 20's, the appellant trained with Mr Hogan over some three years;[51]

(b) he learned the Fairbairn method of killing with a commando‑style dagger;[52]

(c) the Fairbairn method was developed in World War II;[53] the method was relevantly intended for stabbing the victim's carotid artery; it relied on secretly approaching the victim from behind, grabbing the forehead in one hand and tilting it back and sideways, then making just one strike by inserting the dagger into the neck and flicking forward;[54]

(d) he also trained in other methods of attack, involving cutting the subclavian artery,[55] the femoral artery,[56] and the brachial and radial arteries;[57]

(e) the appellant trained with rubber and foam knives;[58]

(f) asked if he had practiced how to kill a human being by stabbing the carotid artery with a rubber knife, he responded 'Not so much';[59]

(g) he did not use a real carotid artery;[60]

(h) he had an actual dagger which he used to practice, but only in mid-air;[61]

(i) he rarely used the knives he had except as tools, and did not practice with them;[62] and

(j) he kept familiar with the techniques by practising with the dagger, but only in the air and not on any person.[63]

79 There was no suggestion that the appellant had ever used the Fairbairn method to actually kill anything, let alone a person. And, the whole method proceeded on the basis of sneaking up on the victim from behind. As was accepted in defence counsel's address, the whole purpose of coming from behind was so that there was no chance of the victim defending themselves.[64]

80 When one understands that the training was 15 years before, the appellant had only practised on others with a rubber knife, and the appellant had never killed anyone before, the suggestion that he would have necessarily deployed that method the first timed he killed a human being can be dismissed. It certainly does nothing to cast doubt on the appellant's forming one of the requisite intents.

81 This depends upon the same argument as the previous factor and can be dismissed.

82 This description 'Tupperware kitchen knife' was introduced by the appellant's counsel at the trial, in the course of her address.[65] Perhaps it was an attempt to diminish the knife in the eyes of the jury, or simply to highlight that the appellant did not use his Fairbairn killing dagger when he attacked Ms Thomas. The jury had the knife to examine. Fairly described, it is a large 29 cm long kitchen knife with 17 cm long metal blade.[66]

83 The contention here is that the appellant had the Fairbairn dagger, two Swiss army knives and two folding knives,[67] yet took a different knife with him to the conference. So, it is said, that could cast doubt on his forming a specific intent.

84 We respectfully disagree. It depends on the same argument about his use of the Fairbairn method, and can be dismissed.

85 In any event, he was living at his brother's house at the time, and in that house was a knife block in the kitchen, which housed knives. Evidently the appellant took one of them.[68] One might rhetorically ask, so what?

86 The point urged here is that the fact there were numerous non-lethal stab wounds is consistent with the evidence of Dr Yogarajah that a person experiencing a dissociative seizure can have excess uncoordinated movements.

87 A proper understanding of Dr Yogarajah's evidence dispels this point. The movements he described were stiff, violent shaking of parts or the whole of a person's body on the ground, as in an epileptic fit. Nothing in the evidence suggested that to have been the case with the appellant on the day of the attack, much less inside the conference room.

88 It is true that the courthouse was a public place and had security personnel. But those features of the location at which the appellant attacked Ms Thomas do not establish a reasonable possibility that the appellant did not form the requisite intent. And such a conclusion runs counter to the actions of the appellant from when he arrived at the courthouse, already having taken a knife from the house and hidden it somewhere on his person or in the folder he was carrying to the pre-trial conference. He knew Ms Thomas would be there, he saw her there, he went into the same room as her for the conference, sat where directed and responded coherently to the registrar. All that, the jury could find, was perfectly rational behaviour.

89 Further, this contention ignores the impact of s 26 of the Code, and the acceptance that the appellant was, at the relevant time, of sound mind and his acts were willed acts.

90 This factor depends upon the jury's acceptance of one piece of evidence, combined with the rejection of another. First, the jury must have accepted the appellant's evidence that he did not recall anything of the events at the courthouse. Second, the jury must have rejected the evidence of Dr Yogarajah, that the prospect of the appellant having experienced a dissociative seizure could be excluded so far as one could make a medical diagnosis.

91 The two must be combined because if the appellant was not experiencing a dissociative seizure, his evidence of not having a recollection of events remains just that, with no further import.

92 Self-evidently the jury accepted Dr Yogarajah's evidence and concluded that the appellant was not experiencing a dissociative seizure. That determination is not challenged. That disposes of this point.

93 Even if that were not right, the jury would still have been confronted with the evidence of the appellant's actions that day, and the fact that what the appellant described as the period of no recollection was unlike anything anyone had witnessed in him.

94 His actions that day are outlined in [47] above. Individually and collectively they reveal someone acting with deliberation and purpose. They are quite contrary to a conclusion that they are, individually or collectively, the actions of someone who did not form one of the requisite intents.

95 In advancing this contention the appellant's argument did not come to terms with the impact of the unchallenged rejection of the s 27 (unsoundness of mind) defence, the correlative s 26 presumption that the appellant was of sound mind, and the unchallenged rejection of the s 23A defence. Consequently, these arguments had to overcome the fact that the appellant's acts were done by a person of sound mind, who had the capacity to understand what he was doing, had the capacity to control his actions, and had the capacity to know that he ought not to do the act, and that all of his acts were willed acts. They utterly failed to do so, especially in so far as they suggested that the appellant acted as an automaton.

96 Further, as was conceded by counsel for the appellant, in order for the appellant's contentions to succeed two things are necessary: first, there was a reasonable possibility that the appellant was having a dissociative seizure when he stabbed Ms Thomas, and secondly, if there was a reasonable possibility that he was having a dissociative seizure, there was a reasonable possibility he could not, or did not, form the requisite intention for murder.

97 The first of those conditions was not met on the evidence at the trial. In particular, the evidence at the trial, taken at its highest in favour of the appellant, could not lead a reasonable jury, properly instructed, to conclude that there was a reasonable possibility that the appellant was having a dissociative seizure when he stabbed Ms Thomas. The second condition has no evidentiary base at all.

98 The evidence of Dr Yogarajah has been dealt with above. As for the other witnesses to, and records of, the appellant's history of seizures, the evidence of those other witnesses as to that history is not supported by any evidence as to the appellant's behaviour or state of mind at or about the time he stabbed Ms Thomas.

(a) in January 2015 he saw the appellant, when he 'sort of kept phasing in and out'; he would stare, his eyes would roll and he would wobble from side to side, but not all at the same time; he would stop in mid-sentence and stare;[69] and

(b) such events occurred regularly but lasted a matter of three to five seconds, maybe a little more.[70]

(a) following his workplace injury she observed the appellant had headaches and on occasions he would 'sort of tip over a bit as he was standing';[71] and

(b) in March 2015 she witnessed what she assumed was an 'absence seizure'; the appellant's son was talking to him when he 'just sat sort of staring blankly ahead'; after a couple of queries he 'sort of came out of this state' and complained of his headaches; it lasted between 30 seconds and a minute.[72]

(a) after the appellant's workplace accident his speech was slower, he was slower to respond, and had headaches;[73] and

(b) he was 'just checking out a lot'; he explained that comment by reference to an occasion when he witnessed what he thought was an 'absent seizure' in May 2015; he asked the appellant a question in the course of conversation and there was no response; the appellant did not move even when he was touched; he came out of it when he was touched a second time; it lasted 'a minute at best'.[74]

102 Dr Brooker observed the appellant staring blankly for a few seconds: see [35] - [37] above.

103 Exhibit 30 was a note by Ms Thomas dated 19 May 2015. She recorded that the appellant had been diagnosed as having 'absence seizures' and she had witnessed him being 'out of it, or ... off with the fairies, on countless occasions'. Such episodes only occurred for a short period of time, lasting '20-40 seconds and definitely less than a minute'.

104 Exhibit 32 was a discharge summary from Royal Perth Hospital, dated 23 September 2016. It recorded that the appellant had told them he had episodes of 'absences, which involves (sic) a brief loss of time possibly lasting 30 seconds with a rapid recovery'.

105 That evidence uniformly shows the observed and reported absences to be: (i) of short duration, in the region of seconds to less than a minute; (ii) manifested by blank stares and silence; and (iii) involving the appellant being quite still, and not moving.

106 More importantly, that evidence does not suggest any support for the proposition that the appellant experienced any awareness when he suffered the seizures; in fact, to the extent that the evidence could address that proposition, it supports the proposition he had no such awareness.

107 That evidence is quite contrary to the proposition which underlies this point, especially when one has regard to the evidence of what the appellant did: see [47] above.

108 In our view, the only reasonable inference open on the whole of the evidence, considered in light of the presumption of sanity, was that the appellant was acting purposefully, with a requisite intention for murder, and he could not have killed Ms Thomas while in a dissociative seizure. No miscarriage of justice could arise from any failure of the trial judge to give a more specific direction about the jury having regard to evidence when considering the issue of intent, when the relevant evidence was not capable of giving rise to a reasonable doubt as to whether the appellant intended to kill Ms Thomas, or inflict an objectively life-threatening injury upon her.

109 For the reasons above the appeal lacks merit and should be dismissed. We would refuse leave to appeal on the basis that the sole ground of appeal has no reasonable prospect of succeeding.[75]

(1) Leave to appeal is refused on the sole ground of appeal.

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

[3] Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91 [23] - [27].

[4] Schmidt v The State of Western Australia [2013] WASCA 201 [160] - [168], [172].

[5] Clarke v The State of Western Australia [2018] WASCA 14 [226] - [229].

[6] Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418 [140].

[11] Cacciola, Daniels, Etrelezis, Ferrier, Sudholz, Guerrini, Howley, O'Keefe and Rickerby: ts 524 ‑ 525.

[12] Mr G Turner, Ms M Ashton and Mr S Turner.

[34] Part of what follows is drawn from Exhibit 6, the CCTV footage of events inside the courthouse.

[35] He was then living with his brother.

[36] He lived at his brother's house. His brother said he had a knife block with knives that had white on black handles: ts 508.

[48] The witnesses canvassed were: Clarke (the registrar); O'Keefe (police); Sudholz, Daniels, Guerrini, Etrelezis, Ferrier, Howley and Mann (court officers); the appellant; medical evidence from doctors who examined the appellant; Ex 30, Ms Thomas' note of the seizures suffered by the appellant; Dr Brooker; Gary Turner, Maureen Ashton and Roy Turner (family members as to their observations); and Dr Yogarajah.

[52] A dagger with a diamond or pyramid shaped profile.

[55] ts 370. The artery behind the collarbone.

[56] ts 370 ‑ 371. The artery in the thigh.

[57] ts 371. Those arteries in the arm.

[68] The brother's evidence was that his kitchen knives had handles with white over black: ts 508. So did the knife used by the appellant.

[75] Section 27(2) of the Criminal Appeals Act 2004 (WA).