Republic v Baguga [2022] NRSC 10; Criminal Case 18 of 2019 (26 April 2022)

IN THE SUPREME COURT OF NAURU CRIMINAL CASE NO. 18 OF 2019
AT YAREN
CRIMINAL JURISDICTION

BETWEEN

THE REPUBLIC
AND

LOMAX BAGUGA

Before: Khan, J

Date of Hearing: 11, 12, 13, 14, 18, 19, 20, 21, 22, 25, 27, 28 October 2021
Written Submissions by Defence: 5 January 2022
Written Submissions by the Republic: 28 January 2022
Hearing of Submissions: 1 March 2022
Date of Judgement: 26 April 2022

Case may be referred to as: Republic v Baguga

CATCHWORDS: Charge of murder – Contrary to s.55 of the Crimes Act 2016 – Accused raised the issue that he was not criminally responsible for the offence as at the time he was suffering from mental impairment – s.42 of the Crimes Act 2016.

APPEARANCES:

Counsel for the Republic: R Talasasa
Counsels for the Accused: A Lekenaua and D Aingimea

JUDGEMENT

INTRODUCTION

1. The accused is charged with one count of murder which reads:
   

Lomax Baguga (aka Lomax Craig Baguga) did commit the offence of:

STATEMENT OF OFFENCE

Murder: Contrary to section 55(a), (b), (c) of the Crimes Act 2016.

PARTICULARS OF OFFENCE

Lomax Baguga (aka Lomax Craig Baguga) on 6^th day of November 2019 intentionally engaged in conduct, that is to say, by stabbing Anna Penani (aka Annamelina Penani) with a knife, and that caused the death of Anna Penani (aka Annamelina Penani) and that the said Lomax Baguga (aka Lomax Craig Baguga) intended to cause or was reckless about causing the death of Anna Penani (aka Annamelina Penani) by the conduct.

2. The accused admitted to stabbing Anna Penani (Anna) on 6 November 2019 and claimed that he is not criminally responsible for the offence as at the material time he was suffering from mental impairment as provided for in s.42 of the Crimes Act 2016 (the Act). The prosecution’s case is that the accused was of sound mind at the material time and he still is of sound mind.
   
3. S.42 states:
   

Mental Impairment

1. A person is not criminally responsible for an offence if, at the time of engaging in the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:
   
   1. The person did not know the nature and quality of the conduct;
      
   2. The person did not know that the conduct was wrong; or
      
   100. The person was unable to control the conduct.
        
2. For the purposes of subsection (1)(b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, is wrong.
   
3. A person is presumed not to have been suffering from a mental impairment.
   
4. The presumption is displaced only if it is proved on the balance of probabilities, by the prosecution or the defence, that the person was suffering from the mental impairment.
   
5. The question whether the person was suffering from a mental impairment is one of fact.
   
6. Where the Court is satisfied that a person engaged in conduct as a result of a delusion caused by a mental impairment, the person cannot also rely on the delusion as a defence.
   
7. The prosecution may rely on this Section only with the leave of the Court.
   
8. Where the Court is satisfied that a person is not criminally responsible for an offence only because a mental impairment, the Court shall return a special verdict that the person is not guilty of the offence because of mental impairment.
   
4. S.42(8) states that if a Court is satisfied that an accused is not criminally responsible then it must return a “special verdict” that the accused is not guilty of the offence because of “mental impairment”.
   

DEFENCE OF UNSOUNDNESS OF MIND

5. S.111 of the Criminal Procedure Act 1972 provides that if the court were to find that the accused committed the act but was not criminally responsible by virtue of the provisions of s.42 of the Act at the time then the court shall make a “special finding” that the accused is not guilty by “reason of insanity”. Where such a “special finding” is made then the court shall report the case for the order of the President, and shall meanwhile order that the accused be kept in custody in such place and in such manner as the court shall direct. The President may order that the accused be confined in a hospital or in prison or other suitable place of safe custody.
   

MENTAL IMPAIRMENT AND INSANITY

6. S.42 of the Act speaks about “mental impairment” whereas s.111 of the Criminal Procedure Act 1972 speaks of “by reason of insanity”. For practical purposes both “mental impairment” and “insanity” mean the same thing. Both “mental illness” and “mental impairment” is defined in the Act and for “insanity” we have to rely on the common law principle. It is stated at page 1499 of Carter’s Criminal Law of Queensland, Lexus Butterworths,1988 (Carter’s Criminal Law) as follows:
   

Disease of mind

The reference to “disease of mind” comes from the definition of insanity in the Rules in M’Naghten’s case (1843) 10CI & F 200 at page 210; 8ER 718 at 722:

The jurors ought to be told that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.

7. It is further stated at page 1500 of Carter’s Criminal Law as follows:
   

In R v Porter [1933] HCA 1; (1933) 55 CLR 182; [1936] ALR 438, Dixon J said that a “disease of the mind” means “that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder”.

DEFINITION OF MENTAL ILLNESS AND MENTAL IMPAIRMENT

8. Under s.8 of the Act the definition is as follows:
   
   1. “Mental illness” means an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition resulting from the reaction of a healthy mind to extraordinary external stimuli.
      
   2. “Mental impairment” includes the following:
      
      1. Senility;
      2. Intellectual disability;
      3. Mental illness;
      4. Brain damage;
      5. Severe personality disorder; or
      6. A psychological condition that involves abnormality and is prone to recur.
         

BURDEN OF PROOF

9. Under s.25 of the Act the prosecution bears the burden of proof of proving each element of the offence of murder.
   

LEGAL BURDEN OF PROOF ON THE ACCUSED

10. Under s.42 of the Act the accused has the legal burden of proof on balance of probabilities. For the accused to be not criminally responsible for the offence, he has to prove that at the time of engaging in the act he was suffering from mental impairment:
    
    1. That he did not know the nature and quality of the conduct;
       
    2. That he did not know that the conduct was wrong; or
       
    100. He was unable to control the conduct.
         
11. For the accused to establish that he is not criminally responsible for the offence he is to prove any one of the effects stated in paragraph 10(a), (b) or (c) existed; and for 10(b) the conduct is to be the sense of what is wrong held by “reasonable people”. The question of whether someone is suffering from mental impairment is one of fact.
    

FACTS

12. At the time of the offence both the accused and Anna were 46 years old.
    
13. They are first cousins.
    
14. At the time of the incident the accused was living in his family house at Meneng District with his girlfriend, Gloria Canon, and their 4-month-old son. He occupied a room downstairs and the upstairs was occupied by Melina Baguga and her family (accused’s aunt – mother’s sister).
    
15. The deceased Anna lived at Bauda District and on 6 November 2019 she and her 8-year-old grandson, Lapua, came to visit Melina Baguga in the evening. After having dinner, she decided to go home at around 8pm and as she was walking down the stairs the accused confronted her and stabbed her 4 times.
    
16. She cried for help and her aunt Melina came down and PC Pikitta Dabuae, a police officer, was waiting for his bus outside the accused’s house also came to her assistance. She was assisted at the scene and she was breathless, and an ambulance was called and she was taken to RON Hospital.
    
17. She was attended to at the RON Hospital by Dr Toobia Smith at 8.40pm and she was given CPR for 45 minutes without any success and she died at around 9.45pm as a result of the multiple stab wounds.
    

MATTER REPORTED TO POLICE

18. As a result of the stabbing the matter was reported to the police and according to the first information report, two phone calls were received at around 8.25 and 8.26pm.
    
19. Following the report, WPC Alefaio and PC Bugia Bill made their way to the scene and as they were driving, they were advised by Sgt Dake that the accused was armed and they should exercise precaution. Upon arrival at the scene, the ambulance had already left and they were advised by PC Pikitta that the accused was in his room.
    
20. PC Bill started knocking on the door of the accused’s room and also got into contact with the police station and was advised to wait for Inspector Imran Scotty who arrived at the scene with Snr Const Marvin Tokibure and upon arrival they were briefed by WCP Alefaio and PC Bill and they decided to contact the police station for protective shields.
    
21. The police shield arrived with additional enforcement including PC Dageago and the knocking on the door continued and Inspector Imran Scotty heard a voice from the room but when he opened the door it was empty. He saw torn bibles on the floor.
    
22. Later Snr Const Valdon Dageago and PC Bill went to the accused’s girlfriend’s place and were advised that around 8pm the accused had come to her house and he kissed his son and told her that if the police arrive to tell them that he is at the Meneng Protestant Church.
    
23. Later the police team went to the Meneng Protestant Church and SC Valdon heard someone say: “I am here if you’re looking for me” and he got closer to the accused who put his hands forward and said “you can cuff me”.
    
24. He was informed that the was being arrested in relation to the stabbing of Anna and was taken to the police station in a police car. At the police station SC Valdon and PC Bill conducted a body search and found a key on him and he was locked up in the cell.
    
25. The accused had numerous conversations with the police which I shall refer to later in detail.
    
26. In the early hours of the morning on 7 November 2019 Inspector Scotty told the accused at the police station that Anna had passed away and his response was “the person passed away” and he further said that: “What she has passed away, okay go and get the evidence I threw it in the sea just opposite his residence”.
    
27. At around 7am on 7 November 2019 the knife was recovered in the sea in between 2 pinnacles.
    

AGREED FACTS

28. The parties agreed to the following facts:
    
    1. The accused is Lomax Baguga;
       
    2. The deceased is Annamelina Penani (Anna);
       
    3. The deceased was stabbed by the accused on 6 November 2019 at Meneng District;
       
    4. The death certificate of the deceased;
       
    5. The handwritten post mortem report of Stephen Cordner;
       
    6. Pictures of the scene at Meneng District pages 1-19;
       
    7. Pictures of clothes collected from the scene at Meneng District pages 1-33;
       
    8. Pictures of clothes collected from the scene at Meneng District;
       
    9. Pictures of the north side of accused’s house;
       
    10. Sketch of the accused’s house’
        
    11. Knife;
        
    12. Field exhibit log book.
        

AGREED WITNESSES STATEMENTS AND DOCUMENTS

29. Under s.147 of the Criminal Procedure Act 1972 the following witnesses’ statements and documents were agreed to:
    

(a) Witnesses’ statements:

1. Laupaua Detageouwa (child)
2. Pikitta Dabuae;
3. Glorine Cannon;
4. Conary Detabene (RON Hospital driver);
5. Thadeus Tagamoun (ambulance driver);
6. Dogaiy Alefaio;
7. Czarist Daniel (Inspector of Police);
8. Imran Scotty (Superintendent of Police;
9. Quan Detenamo;
10. Valdon Dageago (Senior Constable of Police);
11. Illona Dwedia (Inspector of Police);
12. Dan Botelanga (Sergeant)
13. Dr Toobia Smith.
    

(b) Agreed Documents

1. Autopsy report (typed by a Professor Stephen Cordner) (Pathologist). It is agreed that the reference to multiple stab wounds in the report consisted of 4 stab wounds;
   
2. Toxicology report by Professor Stephen M Cordner;
   
3. Report by Benjamin Robert Cabot (forensic chemist). An examination of items for biological, finger print and evidence collection;
   
4. Report by Laura Bowen (forensic chemist) – textile damage examination.
   
5. Report by Merrilyn Hurst (crime scene investigator) – examination, interpretation and recording of variety of crime scenes and collection and preservation of physical evidence.
   
6. Report by Jennifer Stone (forensic biologist) – DNA analysis
   
7. Medical examination form.
   
30. In addition to the above documents, the following documents were tendered by consent:
    
    1. by the prosecution:
       
       1. Record of interview of the accused conducted on 10 November 2019;
       2. Statement answer to charge form conducted on 10 November 2019;
       3. Employment history of the accused;
       4. Dr Toobia Smith’s letter dated 19 October 2021.
          
    2. by the defence:
       
       1. Dr Andrew Mohanaraj’s cirrculum vitea;
       2. Dr Andrew Mohanaraj’s report dated 11 July 2021.
          

THINGS SAID BY THE ACCUSED DURING AND AFTER ANNA’S STABBING

31. Lapua the deceased’s grandson was present with the deceased and the accused said to the deceased “now you’ll see what will happen, that what will be like for teasing”.
    
32. When the accused was at the police station, he said the following things to Inspector Imran Scotty on 6 November 2019: “he and the deceased had an ongoing dispute between themselves, claiming that the deceased did a black magic curse on him”. He stated: “Subject continued telling me that previously he was receiving skin disease on his legs and also stated that the worst is that his son is also receiving the same skin disease on the same area of the body”.
    
33. After the accused was searched and put in the cell, he said to SC Valdon Dageago that: “Subject Lomax took a drink and said to me “you wouldn’t believe if I told you that this is black magic. Firstly, it was my baby boy’s skin disease all over his legs after my son was cure then the disease appeared all over my body” and then the subject showed me behind his back saying – “This is a sign of black magic”. I questioned the subject “where is the object that you used”. Subject stated that he is sorry but that was his evidence he could not give it out was his evidence.”
    
34. In his record of interview conducted by Sgt Iyo Adam on 10 November 2019 the accused stated as follows:
    

At question 22: Can you tell me why did you stab Miss Anna with the knife?

And the answer: This lady Anna for what I know practices black magic or voodoo. Myself and my son became ill or sick due to black magic or effect of black magic.

Question 23: Can you tell me how did you know that Anna put curse on you and your child?

Answer: First off, I told my girlfriend to find someone who can help our child because of the things that have broken out all over (his) body. Me and my child we’re both sick and its because of witchcraft.

I knew that it wasn’t from any normal sickness that it was really from witchcraft. We sought one Kiribati and he/she gave me local treatment and I did the treatment for three days.

On the first day the Kiribati man gave me something to drink and told me that I will see the person in my dreams.

When I went home, on that first day I slept and dreamt of people who have already passed on. On the second day, he gave me another drink and told me a story that a witchcraft spirit visited his house and entered one of his family member. I told the Kiribati guy that the witchcraft spirit had arrived, came to fight. Then I told the Kiribati guy that I saw nothing when I dreamt on the second day because everything was black when I was dreaming.

On the third day the Kiribati guy gave me another drink and told me that I can see in my dreams or you will meet.

When I woke up on the next day at 6am and stayed outside my house when a car arrived and it was Anna, when we looked at each other she turned her head away and she was right there beside our house and when she opened her car door she didn’t get off but was just looking towards the beach. And she was the first person that I’ve seen.

The drinks concluded on the third day and things on my body were still there, sores all over my head, poor eyesight during the day, and cellulitis on my leg up to my groin and my illnesses are getting stronger.

Two weeks after I went to visit a Tuvaluan and asked him to help me and my son. On the first day the Tuvaluan gave a local medicine. The Tuvaluan treated my girlfriend first but found she was okay then when he treated my son, he said that there is a witchcraft on him and it was strong. He also gave me something to drink and touched my head and face and he felt that there is something in my face and head.

On the second day and the third day he just gave myself and my son something to drink.

On the third day after treatment I asked if anyone had done witchcraft on us. He told me that whatever was in us is very strong and he didn’t want to tell me because I will kill that person.

I told him that, if it’s true that the curse will be turned back against the person, then I won’t do anything but if the illnesses are then transferred to this person, I will spit in his/her face and never give forgiveness.

Then he told that the person was Anna. When he told me that name, I kept it in the back of my mind that she is not a nice person this Anna because of the fact that she can do witchcraft on my son who is only 4 months old. After we, three, went back home we stayed inside my room until evening and the sore on my head became more painful and throbbing and even after we read the bible and prayed it still throbbed.

I stayed inside my room crying and lying down even through the pain and was angry at God and Jesus for the pain and because they did not help me. I then told my girlfriend to give me the two bibles, Nauruan and English languages and I tore them up because of the extreme pain in my head and I was still crying. I told my girlfriend to take our child and go to her home. She has already packed and they left for her home because I was becoming crazed in my mind. She came back and I told her that I’m not sure whether they will see me tomorrow or not because if I’m dead then I’m dead and if I’m alive then I am alive. After I came out of my room first thing I saw Anna’s car parked outside and I heard her voice talking upstairs with my aunty and uncle. And because of how angry I really was at her and hating her, I went into my room and got the knife and waited for her downstairs at the front door. And I heard that she was leaving for home, when Anna came down from the ladder and approached the front door, I stabbed her. I stood in front of her and told this, “it hurts, hurts, feel good, hurts, as you need to make it feel good because if it doesn’t feel good then it’s not my problem, tell it to your witchcraft spirit to help you”. Then she said, “what did I do wrong, what did I do wrong?”. Then I told her, “why don’t you know what you did wrong when you die you’ll see you will see where you’re going”. When Rolex and our relatives came out I walked towards the beach and threw away the knife into the sea and then walked on the beach towards the church and stayed there at the church. Went to my girlfriend’s house to talk told her to check the sore on my head and she said it has gone down. I held our child and told him that if I don’t come tomorrow then I will have been arrested because I have killed her I stabbed her with a knife. I kissed his face and told my girlfriend that if police come looking for me to tell them that I am at the church. I left and went to sit outside the church until police arrived and arrested me when Imran told me that she Anna died I told him where the knife is.

Question 25: What was Anna doing when you were stabbing her?

Answer: First stab she did not do anything, second stab she felt something. I stabbed her and she cried then third stab she shouted out ‘what did I do wrong’. When she ran inside I stabbed her again in the back.

Question 26: What was really your intention when you were stabbing Anna?

Answer: I don’t know I cannot comment on that if my mind was stable or not stable.

Question 29: What did you do after stabbing Anna?

Answer: I was talking to her, “So it hurts, hurts, and if you die, then you die, but if you survive then try and get your witchcraft to help you live”.

Question 33: Can you tell me how did the police manage to discover the knife?

Answer: Inspector Imran, we spoke in the cell and he asked me where I was when they came to arrest me because my relatives had told them that I was in my room. I told Imran that I’d already gone because I was at the church, Valdon and his team arrested me at the church.

Imran told me that he was going to arrest me at home because he was talking outside my room asking me to open the door and he really believed that I was inside my room and his colleagues also heard that I was in the room when they surrounded it.

I told him that I wasn’t in the room because I was at the church and he told me that he recognized my voice and that I was really talking to him from inside the room and when he opened it there wasn’t anyone inside the room. He told me that I believed there was someone inside my room and I told him, don’t know, maybe a ghost.

Then Imran asked me if I knew that my relative had died, I said, really she’s dead, and then he said she’s really dead. I told Imran if she’s really dead then you can get the weapon from the sea towards the beachfront in back of our house.

STATEMENT ANSWER CHARGE FORM

35. On 10 November 2019 at 11.50pm the accused was charged for the offence of murder and he was asked if he wanted to say anything in relation to the charge and his response was: “To me I’m not guilty, if she had not put black magic on me and my child, I would not have killed her.”
    

ELEMENTS OF THE OFFENCE OF MURDER

36. S.55 of the Act provides:
    

A person commits the offence of murder, if:

1. The person intentionally engages in the conduct;
   
2. The conduct causes the death of another person; and
   

100. The person intends to cause, or is reckless about causing, the death of that or any other person by the conduct.
     

ELEMENTS OF OFFENCE

37. The elements of offence are:
    
    1. That the accused stabbed Anna which is not in dispute;
       
    2. That the stabbing caused the death which is admitted by the accused and the post mortem report proves that;
       
    3. That the accused intended to or was reckless about causing the death of Anna.
       
38. As the accused has raised that under s.42 of the Act that he was not criminally responsible for the death of Anna, I shall first resolve that issue before I address the issue of intent as stated in paragraph 37(3) above.
    
39. In Ward v The Queen^[1] Kennedy J stated as follows at [8], [9], [18] and [20]:
    

“[8] Section 27 of the Code provides:

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

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 the foregoing provisions of this section, 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."

[9] The expressions "not of sound mind", "unsound" and "unsoundness of mind" were not to be found s 27 of the Code in its original form. However, the words "on account of unsoundness of mind", following the word "omission" where it first appears in the first paragraph of s 27, were inserted by s 7 of the Mental Health (Consequential Provisions) Act 1996. By the same Act, the words "mental disease or natural mentalrmity" were deleted, and thnd the words "mental impairment", which now appear in the first paragraph, were substituted. Definitions of the terms "mental illness" and "mental impairment" were included at the same time in s 1 of the Code. The term "mental illness" is defined to mean "an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli". The term "mental impairment" is defined to mean "intellectual disability, mental illness, brain damage or senility".

[18] The court in , consisting of Mason CJ, Brennan, Deane, Dawson and Gaudron JJ, delivered a joint judgment. At 517, their Honours said:

"In principle, the question ofnity falls for determinationation before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved (the latter by reference either to s 13 or to s 16) before there is any issue of the specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused's mental condition at the time when the incriminated act was done fell short of insanity under s16. (Emphasis added by me)

It follows that, if there be evidence that the accused was suffering from a mental disease when the incriminated act was done and the evidence is capable of supporting a finding of insanity, the trial judge must give the jury a direction on that issue. Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done, is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was "voluntary" and "intentional" within the meaning of those terms in s 13 of the Code. But such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent - relevantly, the intents prescribed by pars (a) and (b) of s 157(1) of the Code."

[20] It clearly follows from s 27 of the Western Australian Code that if an accused is found by the jury, on the balance of probabilities, to be of unsound mind, he or she is not criminally responsible for the killing. No question of intent, or lack of intent, then arises. It is, however, still necessary to apply s 653(1) of the Code, which requires the jury, if they have found the accused person not guilty on account of unsoundness of mind at the time of the act or omission, to return a special verdict as to "the offence of which the person was acquitted". If there is a finding of unsoundness of mind, applying Hawkins v The Queen, the offence of which the accused must be found not guilty must be the offence with which he or she was charged. Thus, try could not acquit the accused of wilful murder and murder but find him or her not guilty ilty of manslaughter on the ground of unsoundness of mind.”

40. In this matter if I were to find that the accused has proved on balance of probabilities that he was suffering from mental impairment at the time of stabbing Anna, then the question of intent or recklessness does not arise and under s.111 of Criminal Procedure Act 1972 I will be required to make a special finding that the accused was not guilty by reason of insanity; and report the case for an order of the President. However, if I were to make a finding that the accused has not been able to prove that he suffered from mental impairment, then I will be required to address the question of intent and recklessness.
    

CRIMINALLY NOT RESPONSIBLE

41. Under s.42 of the Act as I mentioned earlier the accused to establish mental impairment has to prove:
    
    1. That he did not know the nature and quality of the conduct; or
       
    2. That he did not know that the conduct was wrong; or
       
    100. That he was unable to control the conduct.
         
42. S.42 is very similar, if not, identical to s.27 of the Criminal Code (Western Australia) which provides: A person is not criminally response for an act or omission or on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
    
43. S.27 was discussed in Carter’s Criminal Law at page 1502 where it is stated:
    

The M’Naghten Rules established two alternative effects of the disease of mind which must occur in order to establish the defence. Those are not knowing the nature and quality of the act that the person was doing, or if the person did know it, the person did not know that what was being done was wrong.

44. S.27 contains a third capacity, the capacity to control the person’s actions which does not appear in the M’Naghten Rules. The position was explained in R v Falconer, above in the joint judgement of Mason CJ, Brennan and McHugh JJ at CLR 46-7:
    

The incapacities to which s.27 refers include the incapacity to control actions whereas the M’Naghten Rules speak only of such a defect of reason “as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” The explanation for the inclusion of incapacity to control actions s.27 is that it mirrors the provisions of s.23, as Sir Samuel Griffith explained in his notes to the Draft Code 1897 (Page 14):

“An act to involve criminal responsibility must be voluntary, as distinguished from involuntary – that is to say, it must be accompanied by volition. In order that an action may be accompanied by volition there must be in the first place perception, more or less accurate of the facts, then a determination or choice of the action to be taken upon those facts and finally the action. If the person in question is incapable from mental disorder of rightly perceiving the facts, he should be treated on the same footing as a man who in good faith misapprehends the facts. If he is for the same cause incapable of exercising the power of determination or choice, he should be treated on the same footing as a man who does an act independently of the exercise of his will.”

CAPACITY TO UNDERSTAND

45. It is stated at page 1502 of Carter’s Criminal Law as:
    

“In relation to the capacity to understand what the person is doing, this corresponds to the capacity of knowing the nature and quality of the act being done referred to in the M’Naghten Rules. In R v Codery (1912) CR AR21, the English Court of Criminal Appeal held that in using the language “nature and quality” the judges in M’Naghten’s case were only dealing with physical character of the act, and were not intending to distinguish between the physical and moral aspects of the act.”

REASONABLE PEOPLE

46. It is stated at page 1502 of Carter’s Criminal Law as:
    

“In relation to the capacity of the person to know that he ought not to do the act or make the omission, in R v Windle [1952] 2QB 826; [1952] 2All ER No. 1; (1952) 36 Cr App R85, it was held by Goddard CJ that “wrong” in the context of M’Naghten Rules meant “contrary to law”. In R v Porter, above Dixon J gave the words wider interpretation in what is meant is “wrong having regard to the everyday standards of reasonable people”. He said at 189-90: We are not dealing with right or wrong in the abstract. 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.

MEDICAL EVIDENCE

47. S.42(5) of the Act states that the question whether the accused was suffering from mental impairment is one of fact (emphasis added) in Carter’s Criminal Law at page 1503 it is stated that ‘insanity is a question of fact for the jury to decide upon trial: R v True (1922) 16CR APPR 164; R v Rivett (1950) 34 CR APP R87. Medical evidence is not essential: R v Dart (1878) 14 COX CC143; R v Lloyd (1927) 20 Cr App R139 at 140 see also Lucas v R [1970] HCA 14; (1970) 120 CLR 171; [1970] ALR 835; BC7000 200, where it was held by the High Court that while medical evidence may not always be indispensable to the establishment of a defence of insanity, its absence in the instant case meant that the material before the jury was insufficient to found the defence.
    

The jury is not bound to accept the opinion of medical witnesses, however experienced. The evidence relevant for their consideration includes not only expert opinion but all connected facts as well as statements, if any, of the accused himself: Armanasco v R [1951] WALawRp 7; (1951) 52 WALR 78. (Emphasis added by me)

48. It is further stated at page 1503 of Carter’s Criminal Law that:
    

The basic duty of the jury is to find a verdict according to the evidence. The jury cannot reject unanimous medical evidence unless there is other evidence which can displace or throw doubt on that evidence. See Taylor v R (1978) 22 ALR 599 where Smither SJ said:

“The jury should understand that the medical opinions are central for the case for the accused, that thus may be sufficient of themselves to prove as a fact what the state of mind of the accused was at the critical times, and that, where they are accepted as competent and are unchallenged then unless the facts on which the medical witnesses have relied to form their opinions are not satisfactorily established or are contradicted by other acceptable evidence, or the jury are not persuaded that the steps of reasoning in the formation of those opinions were soundly taken, or there is some other factor before them reflecting to the validity of the opinions expressed, the jury should not reject or ignore those opinions.”

(Emphasis added by me)

49. It is further stated at page 1504 of Carter’s Criminal Law as follows:
    

“It is not sufficient for the defence of insanity to provide evidence that merely indicated the presence of a disease of the mind of the accused person: the evidence must show the probable presence of a diseased mind. See R v Roulston [1976] 2NZLR 644.”

PSYCHIATRIC ASSESSMENT

50. After the accused was charged and produced in court, Inspector Iyo Adam spoke to the Director of Medical Services on 25 November 2019 seeking his psychiatric assessment and unfortunately no assessment was carried out.
    
51. After Mr. David Aingimea was instructed to appear for the accused he questioned the qualifications of Dr Toobia Smith and wrote to the Director of Medical Services, Dr Ajayi who stated in his response that an assessment by Dr Smith may not be adequate and suggested that the accused be assessed by Dr Andrew Mohanaraj, who was in Nauru employed by International Health and Medical Services (IHMS), Australia in Nauru Refugee Processing Centre who was a consultant psychiatrist.
    
52. Because of Dr Andrew Mohanaraj’s employment with IHMS he needed an order from the court to be able to carry out the assessment. On 4 February 2021 I issued a ruling and made the following orders at [4] and [5]:
    

[4] In light of the foregoing, I request the Director of Medical Services, Dr Olayinka Ajayi, to arrange for a psychiatric assessment of the accused by Dr Andrew Mohanaraj.

[5] I further ordered that should the Director of Medical Services or Dr Andrew Mohanaraj require further information then that information is to be provided by the prosecution and the defence.

53. Following my ruling the accused’s psychiatric evaluation was carried out by Dr Mohanaraj after two interviews. The first interview was on 29 May 2021 which was attended to by Dr Andrew Mohanaraj as well as Dr Smith; and the second one was on 9 June 2021 which was carried out by Dr Andrew Mohanaraj alone, as Dr Smith was not available because of other work commitments. Both the interviews were conducted at the RON Hospital. The sources of information obtained in compiling the medical report were:
    
    1. Interview and assessment of the accused:
       
    2. RON Hospital records;
       
    3. Collateral history from prison warden;
       
    4. Request letter from Supreme Court of Nauru.
       
54. Despite the order that both the prosecution and defence were to provide further information it appears that no one requested for further information and therefore none was provided including the depositions filed in the court.
    
55. The medical report of Dr Mohanaraj was filed in court on 13 July 2021 and it is dated 11 July 2021. In his medical report Dr Mohanaraj stated that the report was based on 2 consecutive interviews and a psychiatric assessment was done by him and Dr Smith who is the senior medical officer at the RON Hospital. Dr Mohanaraj was called as a witness for the defence and he made certain findings about the accused’s mental state which I shall discuss later. Dr Smith was called as a witness for the prosecution and I shall discuss his findings and evidence now.
    

DR TOOBIA SMITH’S EVIDENCE AND FINDINGS

56. Not only did the accused refuse to see Dr Smith for an assessment of his mental capacity, the defence counsel also objected to him giving evidence because his supervisor Dr Ajayi, the Director of Medical Services of RON Hospital in a letter to the defence counsel had expressed some reservations about his qualifications wherein he stated “given the level of the severity of the mental illness” and had stated that Dr Mohanaraj was a highly qualified psychiatrist. I rejected the defence’s objection and allowed the prosecution to call Dr Smith as a witness.
    
57. Dr Smith graduated in 2011 with a Bachelor of Medicine and Bachelor of Surgery at the Fiji School of Medicine at USP (the course was spread over 2005 to 2011), between 2013 to 2017 he did post graduate Diploma in Mental Health at the Fiji National University and he did his professional training in Fiji and Kiribati and worked in Kiribati from 2012 to 2013 as a medical officer and as a Psychiatric Registrar at St Giles, Fiji and Kiribati. He was appointed as the psychiatrist for RON Hospital in 2017 and has continued in that role. Apart from working as a psychiatrist he also works as a medical doctor.
    
58. In this case he has played multiple roles which are:
    
    1. Swelling at the back of head
       

He attended to the accused on 5 November 2019 in the outpatient department when he presented with an abscess at the back of his head which he stated he had for 4 days and was given antibiotics and pain killers.

2. Attending to Anna (deceased)
   

On 6 November 2019 Anna was brought in in an ambulance with stab wounds and he attended to her and performed CPR until she died.

100. Psychiatric Assessment of the Accused
     

Dr Smith visited the accused at the Nauru Correctional Centre and the accused did not allow him to carry out any psychiatric assessment and said that he would only do so, if Dr Mohanaraj was present.

59. Dr Smith is the senior medical officer in psychiatry at RON Hospital. He stated that when he saw the accused on 5 November 2019 for his abscess at the back of his head and neck, he did not notice any symptoms of mental illness. There was no signs of hallucinations or delusion present. He stated that it was highly unlikely that mental illness will develop overnight. He also stated that the accused did not have any prior history of mental illness in the hospital records.
    
60. Dr Smith stated that he was present right through the first assessment which lasted over 3-4 hours. The questions were asked by Dr Mohanaraj as well himself and Dr Mohanaraj recorded the responses in his notebook.
    
61. As stated, earlier Dr Smith was not available for the second assessment and it was carried out by Dr Mohanaraj alone, however, after the assessment Dr Mohanaraj came into his clinic and he discussed it with him. He told him that he will prepare a report and would send it to him; and that he was at liberty to add or comment on it, but it was submitted to the court instead without his knowledge.
    
62. During the first assessment Dr Smith’s observation of the accused was that he responded well to the questions, he spoke English fluently, he appeared to be upset and agitated to things that had been happening to him, his thought was focused on the abscess at the back of his head and the skin lesion on the groin area which was painful but not itchy. His thought was pre-occupied that the lesion was caused by witchcraft. His observations was that he did not appear to be actively psychotic; he was engaging well in the conversation, but emotional at times.
    
63. Dr Smith added that if he was involved in the second assessment, and if Dr Mohanaraj had sent him the report, he would have discussed with Dr Mohanaraj about the need for physical examination including blood, urine and all laboratory tests.
    
64. In his cross-examination Dr Smith stated that although he saw the accused in the out patients for 10-15 minutes, that was enough for him to ascertain whether he had other problems, and if so, then he would have been admitted to undergo the whole procedure. He also stated that the abscess was a very common presentation in Nauru and it was only 2-7 days old. He added that the pain from the abscess was not severe to have affected the mental capacity of the accused.
    
65. He further stated that after the first assessment his impression was that the accused was mentally normal and that he did not assess him to be mentally ill and only agreed to the second assessment to verify all the information that he gave.
    

ACCUSED ELECTED NOT TO GIVE EVIDENCE

66. The accused elected not to give evidence and of course is his right and called Dr Mohanaraj on his behalf as a witness.
    

DR MOHANARAJ’S EVIDENCE

67. Dr Mohanaraj is a very experienced psychiatrist with 28 years medical experience out of which he spent 20 years in the field of neuro psychiatry in clinical practice, however, this was his first case for delusion disorder for the offence of murder.
    
68. As stated earlier at the time of carrying out the assessment of the accused, Dr Mohanaraj was employed by IHMS and was based in Nauru, but at the time of writing the report on 11 July 2021 he was not under any contractual obligation to any party in Nauru.
    
69. In my ruling of 4 February 2021 for the accused to undergo psychiatric assessment by Dr Mohanaraj I had ordered that should the Director of Medical Services or Dr Mohanaraj seek any further information then all those information was to be provided by both the prosecution and the defence. Although the first assessment was jointly carried out with Dr Smith, Senior Medical Officer in Psychiatry at RON Hospital, the second assessment was carried out by Dr Mohanaraj alone at RON Hospital. Neither Dr Mohanaraj or Dr Smith made any request from the prosecution or defence to provide any further information.
    
70. As stated earlier the only information for compiling the report was:
    
    1. The two interviews;
    2. RON Hospital records;
    3. Collateral history from prison wardens;
    4. Request letter from the Supreme Court of Nauru.
       

DR MOHANRAJ’S MEDICAL REPORT

71. The report states that one day the accused noticed that his right leg was swollen which over the next 3 days got worse and there was pain and redness over the area. The accused described this swelling as being “hot and painful” and he was perplexed at the phenomenon as the swelling did not have bite marks, nor did he suffer any injuries in the area. So how could that happen and what’s more it suddenly healed. But at the same time the accused developed rashes and “lots of little swellings” on the scalp. The accused said that the lesion on the scalp was not painful but it was annoying.
    
72. The report further states that as he lay on bed thinking about “this mystery” he noticed a crab crawling into the room. According to the report the accused got up from his bed and caught the crab and broke its claws. He grabbed a thin stick and poked it in the eyes of the crab and took it outside and smashed it on the concrete floor breaking it into pieces. When Dr Mohanaraj asked the accused as to why did he do this his response was that it was to ward off the witchcraft and he explained that the crab was used as a vehicle to bring curse to him. He told Dr Mohanaraj that he did not know who could be responsible for doing witchcraft, but it could be anybody and when asked if he had enemies his response was that he did not know of any such person but stated that it was very “rampant” in Nauru.
    
73. The accused told Dr Mohanaraj that the next day he developed rashes around his eyes and the crotch area which oozed thick liquid and made the crotch area very smelly that his girlfriend refused to be intimate with him. He said that this went on for 2 weeks with no signs of healing. The accused also noticed that his baby had some skin lesions and a rash resembling a worm and the accused felt that the “worm appeared to be growing”. Both the accused and his girlfriend became alarmed and decided to seek the help of a local medicine doctor who the accused referred to as “Kiribati guy” who often sat under a coconut tree behind his house.
    
74. The accused and his girlfriend went to the Kiribati guy with the baby in a pram and he examined them and took out some oil and got the accused to drink a few drops and he mixed coconut milk with water and instructed him to wash himself for 3 days.
    
75. The accused went back to the Kiribati guy on the second day and the Kiribati guy told him that he felt that someone was trying to attack him (the Kiribati guy) because he helped the accused.
    
76. The Kiribati guy told the accused that it was a “spiritual thing” and was very strong and it was not from Nauru, as Nauruan’s are mainly Christians. The Kiribati guy also told the accused that he slept outside his house all night as he did not want the “black magic” to enter his house and attack his family as well. When the accused was told that he then thought to himself that it could not be “Kiribati” magic but “Nauruan” magic.
    
77. The accused then asked the Kiribati guy how will he know that it was a black magic who told him that he will see it in his dream. The accused went home and slept on the floor whilst his girlfriend and baby slept on the bed; and he dreamt of dead people and he was walking between dead bodies and was unable to open his eyes fully because of the mid-afternoon sun. He said that in his dream he felt that his inability to open his eyes was connected to what he did to the crab’s eyes. He identified the bodies of his grandparents and relatives.
    
78. The accused woke up feeling “disillusioned” and he was unable to understand the meaning of his dream; it did not reveal the identity of the “transmitter of the black magic”. So, he decided to go back to the Kiribati guy the following day who told him to continue dreaming and he will discover the person responsible for the black magic.
    
79. That night he had a dream and “it was completely dark and he was not able to make anything of it”. He was awoken by his child’s cry and he gently rocked the bed as he was sleeping on the floor and then he kicked the bed to wake up his girlfriend to feed the baby. He had another dream and found himself walking amongst corpses. He was unable to recognize any faces as it was dark. He woke up at 7am and found that his baby and girlfriend were still alive.
    
80. The accused went back to the Kiribati guy and demanded to know as to how he will be able to identify the culprit when there was total darkness in his dreams. The Kiribati guy asked the accused to bring some food and the accused forgot to do that, however, the Kiribati guy shared his food with him. Just prior to eating he told the accused that he would see the culprit “face to face” as the person was no longer in his dream and was told that he should drive around the island anticlockwise and then get to the point of origin. The accused drove around the island anticlockwise and then went to Bauda District and thereafter went to sleep.
    
81. The next morning, he woke up at 6m and got out of his room and stood at the doorway and saw a car drive in his compound. The car was facing the beach about 10 meters from his room and the passenger remained in the car with the engine switched off.
    
82. The accused according to the report thought to himself that this girl is not good. He went back to his room and woke up his girlfriend and told her about the girl in the car and she dismissed his suggestion that she did not look good and the accused reminded her of what the Kiribati guy told them, that he would see the culprit “face to face”. His girlfriend told him not to go after the girl and let the black magic backfire on her. The driver of the car was Anna.
    
83. The accused grew up with Anna as his mother could not afford to look after him after his father died and gave him away to Anna’s family. Anna was like a step-sister and was his real cousin. He said that he was severely beaten by Anna’s father on a regular basis and on some occasions, he was beaten very badly and was taken to hospital for treatment.
    
84. The accused moved out of Anna’s father’s house when he became of age and some years later when her father died, he said to Anna “that bastard deserved to die”. He felt that Anna was upset at what he said during the funeral but she understood the reasons why he was so angry with her father.
    
85. The accused and Anna never had any problems with each other and they got along very well when they grew up together. After the accused returned from New Zealand, he brought gifts and presents and Anna took some things as it is a Nauruan custom.
    
86. Meanwhile the skin lesion continued to grow and he consulted a Tuvaluan medicine man instead of the Kiribati guy. The accused went to see the “Tuvaluan guy” with his baby and girlfriend. The Tuvaluan guy took the baby from his girlfriend and applied oil on his chest and made a cross sign and told the accused that the baby was very sick which made the accused very angry and he thought: “I am going to get this one. I am going to stab this one, she is going to get it vaguely and inconclusively connecting Anna to this phenomenon”.
    
87. After meeting the Tuvaluan guy, the accused felt he had something growing at the nape of his neck and it was hard, it was painful but not itchy. The accused was made to drink coconut oil. There was no ritual with the baby. He noticed that the oil given by the Tuvaluan guy was different to the one given to him by the Kiribati guy but it gave some confidence in the Tuvaluan guy.
    
88. The swelling grew to the size of a “ping pong ball” and his girlfriend asked the Tuvaluan guy if someone was making magic and he said nothing but signaled her leave as he wanted to have a “man to man discussion” with the accused and she left.
    
89. The accused then asked the Tuvaluan guy if it was witchcraft and he said yes and told the accused to spit on the face on the person who caused it if they were to seek forgiveness. The accused shook his head and he thought that he would kill that person.
    
90. The Tuvaluan guy told the accused that Anna had gone over to his house to see him but did not specify why and the accused assumed that it must be in relation to something concerning witchcraft. He asked himself how did she know that he was seeing the Tuvaluan guy. He started to ask questions to himself as to the reasons for Anna seeing the Tuvaluan guy and “at that stage his suspicion of Anna became more concretised”.
    
91. The accused asked the Tuvaluan guy to make black magic to ward off Anna’s witchcraft, and he refused to do so and suggested that he wear a necklace as an amulet, and that he ties a rubber band around his waist; and if the rubber band breaks then the magic would backfire. The accused complied with that but he was not entirely convinced.
    
92. After seeing the Tuvaluan guy, the accused went to RON Hospital where he was attended to by Dr Smith in the emergency unit who gave him antibiotics and pain killers.
    
93. He came back to his house and the pain was very severe and it felt like a balloon waiting to burst and he broke down and started to cry like a child and the girlfriend also cried. He asked her to give him the Bible which he tore to pieces and he asked her for the Nauruan version and he tore that as well. He asked his girlfriend to leave with the baby and to go to her house which she did.
    
94. He tried to sleep off the pain but it persisted and he went to the doorway and saw the same green car again and there was no one in the car and he thought she must be inside the house.
    
95. Then he heard Anna’s voice coming from upstairs and she was talking to her uncle and aunt and the voice grew louder. He guessed that she was coming down the steps and then the Pitbull terrier dog standing on his hind legs with the front paws on Anna. It appeared to him that the dog was preventing Anna from leaving and he thought to himself “is the dog in this too?”
    
96. He then went back to his room and got his special knife which he used to slaughter pigs with. As Anna came down the steps the accused lunged at her and stabbed her 4 times, twice in the abdomen and once on the chest and once on her back. When Anna asked him “why you do this do me?” The accused said “why you don’t know?” with the knife still in his hand. At that point the accused’s cousin came out of her house from the ground floor and called out to him and the accused told him “you don’t be a smart arse, I will stab you too”.
    
97. Anna again asked the accused as to why did he do this to her and the accused’s response was “if you don’t know, you will know soon when you die, God will judge”.
    
98. The accused later walked towards the beach and hid the knife between two pinnacles.
    
99. The medical report states that as the accused was going towards the church, his girlfriend came running to him whereas the girlfriend’s evidence is that he came to see her at the house and kissed the baby and told her that if the police came to look for him then to tell them that he is at Meneng Protestant Church.
    
100. He was later arrested outside the church and taken to the police station.
     
101. Dr Mohanaraj asked the accused if at the time of stabbing Anna, he knew what he was doing and was aware of his actions. The accused responded that he did and that he knew he would be charged for murder, but that did not concern him at all as “what he hoped to achieve was the opportunity to demand in court why is witchcraft still being allowed to be practiced in Nauru when it is a Christian country?”
     

DR MOHANRAJ’S FINDINGS

102. Dr Mohanaraj found that the accused suffered from delusion disorder which is a type of serious mental illness. Dr Mohanaraj described delusions as unshakeable beliefs in something that is not true or based on reality.
     
103. Dr Mohanaraj further added that: “it could be perceived that the delusion by the accused in relation to witchcraft and the ability of certain individuals to exercise sorcery is consistent with the culture and belief system subscribed by a significant portion of the people of Nauru. Therefore, can the accused be said to suffer from delusion disorder when his delusion belief itself can be interpreted as being culturally congruent?”.
     

MENTAL STATE AT THE TIME OF THE OFFENCE

104. S.42 provides as mentioned earlier that a person is not criminally responsible for an offence if at the time of engaging in the conduct, he was suffering a mental impairment that had the effect that:
     
     1. The person did not know the nature and quality of the conduct; or
        
     2. The person did not know that the conduct was wrong; or
        
     100. The person was unable to control the conduct.
          

ANALYSIS OF THE REPORT

105. Now let me analyze what was Dr Mohanaraj’s findings in relation to (a), (b) and (c) of paragraph 107 above and after making a finding that the accused suffered from delusion disorder.
     
106. a) The person did not know the nature and quality of the conduct
     

Dr Mohanaraj’s finding is that the accused was conscious, alert and well orientated to time, place and person. The accused knew the nature of his act; the accused knew that it was against the law; he understood the personal consequences of his act but he did not completely comprehend the quality of his act.

2. The person did not know that the conduct was wrong
   

Dr Mohanaraj made a finding by asking a question that is what he stated: “... but did he have the mental capacity to know it was wrong to kill another human being? Perhaps not.” Unfortunately, the doctor’s finding is vague. He was required to make a finding that the accused did not know that the conduct was wrong and instead of that he stated that he answered the question that was posed to himself by saying “perhaps not”. Under s.42(2) a person does not know that the conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as perceived by “reasonable people” is wrong. The conduct is not determined on “subjective standards” but on an “objective standard”.

107. In The State of Western Australia v Marotta^[2] Jenkins J stated as follows at [37] :
     

The authority most directly on point in this context is Staple The Queen< ; [1952] HCA 56; (1952) 86 CLR 358. In that casving regard to t to the state of the evidence, it seems unlikely that there would have been any practical difference in result whether the jury had been directed in terms of a capacity to understand that an act was wrong according to ordinary standards, or to understand that it was contrary to law. It appears that that was the reason why the court would have 'hesitated' to order a new trial simply because the jury had been directed that the test of insanity was whether the accused knew that firing a shot at another person was against the law (at 375). However, the court made it clear that such a direction was erroneous (at 367 368).

It is not easy to summarise the detailed discussion of authority in Stapleton in 0;in a way which is capable of being fashioned into an appropriate direction in every case of insanity. However, the iples extracted from that discussion appear to focus upon two issues. First, the abilityility 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 to right or wrong. (Emphasis added by me)

In my view, the question in this case made it imperative that her Honour explain to the jury the two principles which I have described above. For completeness, I would add that it was not, in my view, necessary for her Honour to adopt the formula contended for by ground 2(b) of the grounds of appeal. Although a direction as to whether the accused was capable of reasoning 'with some moderate degree of calmness' or, as it was put in Porter, with 'a moderate degree of sense and composure' is sanctioned by authority, it may in some cases, in my view, run a risk of confusing the jury. That is because these offences generally take place in circumstances in which the accused is, plainly, not composed and not calm. The relevant issue is not whether the accused is, in fact, at the particular time, reasoning calmly and rationally. The question is whether the accused's mental condition is such that the accused is incapable of thinking in a rational way. (Emphasis added)

108. (c) The person was unable to control the conduct
     

Dr Mohanaraj states in his report that: “the accused, indeed, had the vicious will to kill the victim. However, he did not have a clear plan to make his wish a reality. In fact, he had no plan at all. The accused did not go looking for her in order to accomplish his deed. Neither did he anticipate the victim visiting the house again. He only happened to see he on that fateful day and that unfortunate visit fed into his delusion”.

109. Capacity to control delusional conduct was discussed in Marotta and it is stated in [39], [40], [41], [42], [43], [44], [45] as follows:
     

[39] The meaning of the Code s 27 where it sayt an accused ised is not criminally responsible for an act if at the time of doing the act the accused is in such a state of menisease as to deprive him of capacity to control his actions was discussed in R vi>R v Falc/i>..[27] Mason CJ, Brennan and McHugh JJ said:

The incapacities to which s 27 refers includ incapacity toty to control actions whereas the Mthe M'Naghten Rules speak only of such a d of reason 'as not to know know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.' The explanation for the inclusion of the incapacity to control actions in s 27 is that it mirrors the provisions of s 23, as Sir Samuel Griffith explained in his notes to the Draft Code, (1897), 14:

'An act to involve criminal responsibility must be voluntary, as distinguished from involuntary [s.23] - that is to say, it must be accompanied by volition. In order that an action may be accompanied by volition there must be in the first-place perception, more or less accurate, of the facts, then a determination or choice of the action to be taken upon those facts, and finally the action. If the person in question is incapable from mental disorder of rightly perceiving the facts, he should be treated on the same footing as a man who in good faith misapprehends the facts [s.24]. If he is for the same cause incapable of exercising the power of determination or choice, he should be treated on the same footing as a man who does an act independently of the exercise of his will [s.23].’(Emphasis added by me)

Also in Far Dean>Deane and Dawson JJ said:[28]

Where an accused's acts are alleged to be involuntary by reason of mental disease or natural mental infirmity, no distinction can be drawn between the defence of automatism - the absence of will accompanying the relevant acts of the accused - and the defence of insanity under s 27 of the Code. This is necessarily so because s 27 relieves a person of criminal responsibility for an act done in 'such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions ...'.

... Where the voluntariness of an accused's acts is to be determined by reference to a condition which, if it existed at all, must on the evidence have amounted to a state of mental disease or natural mental infirmity, the question whether the accused's acts were voluntary will be subsumed in the question whether the accused did in fact suffer from a state of insanity envisaged by the section such that it deprived him of the capacity to understand what he was doing or the capacity to control his actions. S 27 also applies where a person is by reason of mental disease or natural mental infirmity deprived of the capacity to know that he ought not to have acted as he did. That would seem to raise a question distinct from that of voluntariness.

[40] Their Honours equated a deprivation of the capacity to control ones actions to involuntariness pursuant to the Code s 23. Toohey J seems also to have equated involuntary action with the second limb of s 27. His Honour said:[29]

Of course, insanity is not confined to involuntary action; insanity may be established even if a person has acted voluntarily, hence the need for lack of 'capacity to understand what he is doing' or lack of 'capacity to know that he ought not to do the act or make the omission' as components in s 27.

[41] Similarly, Gaudron J in said>said:[30]

It is clear from the terms of s 27 of the Code - 'such a state of mental disease or natural mental infirmity as to deprive him ... of capacity to control his actions' that the defence of insanity or unsoundness of mind encompasses involuntariness when it proceeds from a mental disease or natural mental infirmity.

[42] I conclude that the High Court has given what some authors have described as a 'very narrow sphere of operation' to the second limb of s 27.[31] A person is deprived ofcapa capacity to control his actions where his actions occur independently of the exercise of his will and where the person cannot exercise the power of choice t.

[43] This construction of the second limb ofmb of s 27 does not exclude those cases where a person is by their mental disease deprived of the capacity to control their actions in the sense that they are deprived of the capacity to refrain from doing an act or in the sense that the effect of their mental disease on their mind deprives them of the capacity to choose to act.

[44] In the case of the effect of mental disease on a person's capacity to control their actions the focus will often be on the extent to which their delusions or hallucinations controlled their actions or in the words of Sir Samuel Griffith deprived them of the power of choice. (Emphasis added by me)

[45] It will involve a consideration of the extent to which their mental disease compromised their ability to will their actions or to decide not to act. But it is necessary to bear in mind that the Code s 27 only applies if the accused is deprived of capacity to control actions, as opposed to something less than that such as having a significantly impaired capacity to resist an impulse or an emotion.

110. In this matter, Dr Mohanaraj simply stated that he had “no plan at all”; “he only happened to see her on the fateful day and the unfortunate visit fed into his delusion”. There is no evidence that the delusion controlled his action or in the words of Sir Samuel Griffith that the defendant was “...incapable of exercising the power of determination of choice...”.
     

CONSIDERATION

FINDINGS BY DR MOHANARAJ

111. Dr Mohanaraj’s findings is based on the fact the accused suffered from “delusion disorder”. All of the report was written by Dr Mohanaraj based on the two interviews jointly conducted by him and Dr Smith but Dr Smith did not attend the second interview. Dr Smith states that he is in charge of the psychiatric unit at RON Hospital and the arrangement with Dr Mohanaraj was that he would be given the report for him to comment on before it was finalized. He only came to know about the report later after it was filed in Court.
     
112. In his cross-examination Dr Mohanaraj was told by the DPP that the accused was seen by Dr Smith the day before the incident, that is, on 5 November 2019 when he attended the outpatients for the abscess and that Dr Smith did not see any symptoms of mental illness or impairment and according to Dr Smith mental illness does not develop overnight. Dr Mohanaraj’s response was: “yes I agree with Dr Smith that in particular, I mean in the case of delusion disorder or a major illness you cannot develop it overnight. There is a process, it takes some time for it to happen generally...”.
     
113. When it was suggested to Dr Mohanaraj that Dr Smith had stated in his evidence that his observations after the first assessment was that the accused’s mental state appeared to be normal, his response was that he was not privy to it as it was not communicated to him. The DPP then put to Dr Mohanaraj the sequence of events that took place before and after the incident of stabbing. It was a long question which was as follows:
     

DPP: I want to give you full scenario, full fact of what he told the police before the incident, then I come to during the incident and after the incident, so I tell you first what happened before the stabbing, so he said that to his girlfriend when he came out of his room he saw the deceased car parked outside, and then he heard her voice talking upstairs with her aunty and uncle, and then Lomax said and because of how angry I really was at her and hating her, I went into my room and got the knife and waited for her downstairs at the front door and I heard that she was leaving for home when Anna came down from the ladder and approached the front door and I stabbed her. Do you follow what he told the police up to that point?

My question Doctor because I am going to relate to you again his conversation with the deceased and what happened after. But my question on this part is this Doctor, for the time spent conversing with his girlfriend, for the time it took him to go and collect the knife and asked for the bible after hearing the voice of the woman upstairs, and the time for him to wait at the front door when he realized the woman was coming down, is that illustrative Doctor of a person who is fully understanding of what was happening and what was being done? This is my question on that aspect.

Dr Mohanaraj answer: Thank you, first of all the chronological events that you mentioned based on the police report is not entirely consistent with what I got from the client, also the fact that in my findings he did send away the girlfriend but that was in disobedient, what he told me because of the excruciating pain at the back and he was convinced that the pain was black magic and that is why he sent his girlfriend and the baby away and subsequently of course he was alone when he heard the voices of his girlfriend, sorry the accused, sorry the deceased Anna, and so that he got out of the house then, but again coming to your question, does this really reflect the mind of a person who has major psychotic.

114. Further the DPP questioned Dr Mohanaraj after the incident and the question and answers were as follows:
     

DPP: Would you say the same when immediately after the stabbing and when Mr Lomax saw the relatives coming towards him or to where him immediately when he saw them coming he left, he walked towards the beach, he threw the knife into the sea, is that illustrative of a person who was not mentally impaired, he understands what he was doing, he knows the nature and quality of his conduct and he had full control of what happened? What do you say to that Doctor?

Dr Mohanaraj’s answer: Based on what you told me now, again I am not certain if that is the full picture as it is not consistent with what I have obtained from him.

115. On at least two occasions Dr Mohanaraj stated that the chronology of events is not entirely consistent with what the accused had told him. Unfortunately, there is no evidence before me as to what the accused has told the doctor as how the events had unfolded.
     
116. Dr Mohanaraj was further cross examined as follows:
     

DPP: Doctor, the fact that I present to you it is Lomax story to the Police is this, that when Lomax after stabbing, Lomax saw his relatives coming, he left walked towards the beach, threw the knife into the sea and walked down the beach towards the church and then he went to the girlfriend kissed his boy and told his girlfriend that if police come looking for him to tell them that he is in church and then he was at the church, police came and he surrender himself to the police. My question Doctor is immediately after the stabbing based on the facts, my facts that I am presenting to you, is that illustrative, does that show Lomax as fully cognitive, he was not impaired in any way?

Dr Mohanaraj answer: It shows me that his judgement was not impaired at that particular point.

DPP: Alright thank you Doctor.

Dr Mohanaraj answer: But it does not reflect on the other component of his mental state, his judgement was not impaired based on what you told me.

DPP: So, you agree with me he was in control, he was able to control?

Dr Mohanaraj answer: Yes.

DPP: Thank you doctor.

Dr Mohanaraj answer: Based on what you say it could appear to be so.

DPP: Very well, I was just thinking of that, I will continue. Doctor I note what you said about what he told you that you recorded in your report, but my question is from the facts presented by Lomax, he had hating, he had been having, developing feelings of animosity against the deceased for sometimes and then opportunity came and he acted on it. My question is would the is it possible that Lomax also fits in a situation of a person who has been having anger, developing anger, keeping anger for some time and acted on that without being mentally impaired, do you understand the question?

Dr Mohanaraj answer: It is a possibility, it is possible based on what you told me, of course, presented to me hypothetically speaking there is a possibility of that.

FINDINGS ON WHETHER ACCUSED WAS MENTALLY IMPAIRED

117. In this case the accused has not given evidence and the only evidence of what he did is contained in his record of interview which was been tendered by consent in which he has made admissions to the stabbing of Anna and gave an account of the events before and after the stabbing. Apart from that being tendered by consent, the defence counsel stated categorically that there was no challenge to the admissibility of the admissions made therein and when the DPP put the version that accused gave to the police in the record of interview to Dr Mohanaraj his responses twice were that that was not consistent with what the accused told him. It is not known as to what was the version that the accused gave to him. It is stated in Carter’s Criminal Law at pages 2847 and 2848 as follows:
     

“As to the duty of the defence to prove the facts upon which the medical witnesses can express a medical opinion on question of diminished responsibility, and as to the necessity of scrutinizing medical reports to see how much of them consist of purely medical matters and how much depends upon facts, see R v Ahmed Din [1962] 2 All ER 123; [1962] 46 Cr App R 269, which was explained in R v Bathurst [1968] 2 QB 99; [1968] 1 All ER 1175; (1968) 52 Cr App R 251. It was held in R v Ahmed Din that although there might be cases in which an accused person for a plea of diminished responsibility was raised ought to give evidence when the plea was in issue, since it was for the defence to lay the foundation of facts on which the medical evidence could be based, yet the occasions when comment on the accused’s failure to give evidence could be proper must be very rare.” (Emphasis added by me)

118. Dr Smith stated that when he saw the accused on 5 November 2019, a day before the incident for the abscess he did not see any symptoms of mental illness and that mental illness does not develop overnight. When Dr Smith’s observation was put to Dr Mohanaraj in cross examination he agreed with those observations.
     
119. Dr Smith only attended the first assessment although the arrangement was that he would attend both assessments and Dr Smith was of the view that based on only one assessment that the accused was not suffering from mental illness at the time of stabbing Anna. When this was suggested to Dr Mohanaraj his response was that he was not privy to such assessment by Dr Smith.
     
120. When Dr Mohanaraj was cross examined that the accused was bottling his anger for some time against the deceased and that he acted on his anger and that he was not mentally impaired, Dr Mohanaraj’s response was that it was a “possibility”.
     
121. Dr Mohanaraj further agreed in cross examination that after the incident the accused’s act of throwing the knife into the sea and then going to the girlfriend’s house and kissing the baby and telling the girlfriend to tell the police that he will be at the Meneng church shows that his judgement was not impaired at the time.
     
122. The onus is on the defence to prove on balance of probability that the accused was suffering from delusional disorder or mental impairment at the material time and in light of my discussions I am not satisfied that the defence has discharged that onus.
     

ISSUE OF INTENT

123. The accused has admitted to the stabbing of the deceased, Anna, 4 times and it is admitted that she died of those stab wounds. I am now required to determine as to whether the accused intended to cause her death.
     
124. A day before the incident the accused was told by the Tuvaluan guy whom he consulted for the abscess that it was Anna who did the witchcraft on him and his baby. On the day in question the accused saw Dr Smith for the abscess and came home with his girlfriend and the baby and when he got home he heard Anna’s voice upstairs talking to her uncle and aunt; he then sent his girlfriend away with the baby and told her: “If I am dead, then I’m dead, and if I am alive then I am alive”.
     
125. Having sent his girlfriend away he then went back into his room and picked a kitchen knife and waited for Anna at the front door.
     
126. As she came down the steps he stabbed her 4 times, twice in the abdomen, once in the chest and once at the back and said: “It hurts, hurts, feel good, hurt as you need to make it feel good because if it doesn’t feel good then it’s not my problem, tell it to your witchcraft spirit to help you”. Then she said, “what did I do wrong, what did I do wrong?”. Then I told her, “Why you don’t know what you did wrong when you die you will see where you are going”.
     
127. This was a premeditated act and I am satisfied beyond all reasonable doubt that the accused intended to cause the death of Anna and I am satisfied beyond all reasonable doubt that the prosecution has proved all the elements of the offence of murder under s.55 of the Act and I find the accused guilty of the charge.
     

DATED this 26 day of April 2022

Mohammed Shafiullah Khan
Acting Chief Justice

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^[1] [2000] WASA 413 (Court of Criminal Appeal)
^[2] [2018] WASC 329 (Supreme Court of Western Australia)