THE STATE OF WESTERN AUSTRALIA -v- JALLOH [2026] WASC 255

[2026] WASC 255 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : THE STATE OF WESTERN AUSTRALIA -v- JALLOH [2026] WASC 255 CORAM : MCGRATH J HEARD : 24 JUNE 2026 DELIVERED : 24 JUNE 2026 FILE NO/S : INS 18 of 2025 BETWEEN : THE STATE OF WESTERN AUSTRALIA Applicant AND CLARENCE JALLOH Accused Catchwords: Criminal procedure - Accused's application for trial by judge alone - Murder - Unsoundness of mind - Section 27 of the Criminal Code (WA) - Section 28 of the Criminal Code (WA) - Expert psychiatric evidence - Whether objective community standards required in circumstances - Turns on own facts Legislation: Criminal Code (WA) s 27, s 279 Criminal Procedure Act 2004 (WA) s 118 -- 1 of 17 -- [2026] WASC 255 Page 2 Result: Application for a trial by judge alone granted Category: B Representation: Counsel: Applicant : Mr B Sertorio SC Accused : Mr S D Freitag SC Solicitors: Applicant : Director of Public Prosecutions (WA) Accused : Legal Aid (WA) Case(s) referred to in decision(s): Arthurs v The State of Western Australia [2007] WASC 182 Bell v The State of Western Australia [No 2] [2014] WASC 260 Chiha v The State of Western Australia [No 2] [2015] WASC 147 Hone v The State of Western Australia [2007] WASCA 283 LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 Steele v The State of Western Australia [2018] WASCA 133 The State of Western Australia v Brown [No 2] [2013] WASC 280 The State of Western Australia v Evans [2012] WASC 87 The State of Western Australia v Herbert [2017] WASC 101 The State of Western Australia v Illey [2006] WASC 107 The State of Western Australia v Mack [2012] WASC 127 The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 The State of Western Australia v McDonald [2010] WASC 304 The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 The State of Western Australia v Strabach [2012] WASC 97 The State of Western Australia v Tarau [2005] WASC 290 The State of Western Australia v Wark [2017] WASC 154 TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 -- 2 of 17 -- [2026] WASC 255 MCGRATH J Page 3 MCGRATH J: 1 The applicant, Mr Jalloh, has been indicted on one count; namely, that on 16 March 2024 he murdered Mauwa Kizenga, contrary to s 279 of the Criminal Code (WA).1 2 Mr Jalloh has pleaded not guilty to the charge and is proceeding to trial which is listed between 14 October and 16 October 2026. 3 Mr Jalloh applies, pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA), for his trial to be heard by judge alone without a jury.2 4 The basis for the application is that it is in the interests of justice to grant the order for a judge alone trial, given that the single issue for determination at the trial will be whether Mr Jalloh was of unsound mind at the time of the alleged offending pursuant to s 27 of the Criminal Code. 5 The State does not oppose the application, however, that is not determinative of the application. 6 For the following reasons, I have determined that it is in the interests of justice that Mr Jalloh be tried by judge alone and therefore, I exercise my discretion to so order. 7 In my reasons, I will consider the following: (a) the nature of the State's case; (b) legal principles relevant to an application under s 118 of the CPA; and (c) an evaluation of the interests of justice in the application. The State's case 8 The State's case is outlined in the Amended Statement of Material Facts.3 It is not necessary to reproduce the Amended Statement of Material Facts. In short, on the evening of Saturday, 16 March 2024, the 22-year-old female deceased was walking along a road in suburban Perth towards her friend's house. 1 Indictment dated 23 July 2025. 2 Application dated 11 June 2026. 3 Amended Statement of Material Facts dated 30 July 2025. -- 3 of 17 -- [2026] WASC 255 MCGRATH J Page 4 9 The accused, who was also walking on the same road, commenced chasing the deceased whilst armed with a knife. The accused then inflicted a violent attack on the deceased by repeatedly stabbing the deceased. The accused caused multiple incised and penetrating wounds, including a fatal neck injury. The injuries caused significant blood loss. Members of the public intervened endeavouring to assist the deceased. 10 The post-mortem examination disclosed 19 sharp force injuries of which eight were located to the facial region and the side or back of the neck and head. 11 Testing of the accused approximately 14 hours after the incident confirmed that the accused's blood sample had tetrahydrocannabinol at a concentration at 2.5 ug/L and the presence of Aripirazole, being an antipsychotic drug primarily used in the treatment of schizophrenia. 12 The accused and the deceased were unknown to each other. The attack was a random violent attack by the accused. The accused had recently been released from prison, after serving a sentence of imprisonment for a number of convictions involving violent and unprovoked assaults, committed in public places, against seven young women. Legal principles 13 Section 118 of the CPA relevantly provides: (1) If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury. (2) Any such application must be made before the identity of the trial judge is known to the parties. (3) On such an application, the court may inform itself in any way it thinks fit. (4) On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents. (5) Without limiting subsection (4), the court may make the order if it considers - -- 4 of 17 -- [2026] WASC 255 MCGRATH J Page 5 (a) that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or (b) that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury. (6) Without limiting subsection (4), the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness. (7) If an accused is charged with 2 or more charges that are to be tried together, the court must not make such an order in respect of one of the charges unless the court also makes such an order in respect of each other charge. 14 The proper construction and interpretation of s 118 of the CPA has been considered in a number of decisions of the court, from which principles may be distilled. The Court of Appeal outlined the relevant legal principles in Steele v The State of Western Australia.4 15 Neither the accused nor the State has the right to elect a trial by judge alone.5 The agreement of the parties that the trial be conducted before a judge alone does not determine the issue.6 16 Section 118(4) of the CPA provides that the discretion of the Court to make an order for a trial by judge alone will not be enlivened unless the Court is affirmatively satisfied it is 'in the interests of justice' to do so.7 If the Court is satisfied that it is in the interests of justice to do so, the Court then exercises the discretion of whether to make the order for a trial by judge alone.8 17 The phrase 'in the interests of justice' has a broad connotation and includes not only the interests of the accused but also the public interest.9 The public interest 'in this context includes the proper functioning, and the protection of the integrity, of the criminal justice system as administered by the courts'.10 4 Steele v The State of Western Australia [2018] WASCA 133. 5 LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178 [317]. 6 The State of Western Australia v Mack [2012] WASC 127 [43]. 7 LFG v The State of Western Australia [318]. 8 TVM v The State of Western Australia [2007] WASC 299; (2007) 180 A Crim R 183 [21]. 9 LFG v The State of Western Australia [319] - [320]. 10 LFG v The State of Western Australia [320]. -- 5 of 17 -- [2026] WASC 255 MCGRATH J Page 6 18 The fundamental issue with which s 118 of the CPA is concerned is that the accused receives a fair trial according to law and therefore, it will be in the interests of justice to order a trial by judge alone if that is necessary to ensure that the accused receives a fair trial.11 There must be a real and substantial (as distinct from a remote) doubt as to whether, in the particular case, the accused will receive a fair trial according to law before a jury.12 19 The concept of being in the interests of justice, therefore, is one that should not be narrowly defined and necessarily contemplates the analysis and weighing of relevant factors. What is in the interests of justice will vary from case to case.13 Some guidance as to the factors that may be relevant in assessing the interests of justice is provided by s 118(5) and s 118(6) of the CPA, but both subsections state that the factors listed therein do not limit the general operation of the concept of what might be in the interests of justice. Where the issues at trial are likely to involve consideration of community standards of the type referred to in s 118(6), then that may favour a trial by jury. 20 A number of factors have been identified and considered in other cases that are relevant in determining what is in the interests of justice pursuant to s 118 of the CPA. No one factor will necessarily be paramount, with each factor given its appropriate weight in light of the particular facts and circumstances.14 21 The subjective views of the accused as to whether a trial by judge alone is necessary for the accused to receive a fair trial may be relevant and weight may be given to that factor.15 However, as McKechnie J observed in TVM v The State of Western Australia, 'to pay undue account to the subjective views of an accused person … may have the result that a decision is really being made for the interests of an accused, not the interests of justice'.16 That is because the interests of justice are not coterminous with the interests of an accused. 22 It has been suggested that the obligation of a judge to provide reasons for decision is a relevant factor that may weigh in support of a trial by judge alone,17 but there are differing views as to whether this is 11 LFG v The State of Western Australia [321]. 12 LFG v The State of Western Australia [319] - [321]. 13 The State of Western Australia v Rayney [2011] WASC 326; (2011) 42 WAR 383 [11]. 14 LFG v The State of Western Australia [324]. 15 Arthurs v The State of Western Australia [2007] WASC 182 [79] - [80]; The State of Western Australia v Rayney [26]. 16 TVM v The State of Western Australia [30] - [32]. 17 Arthurs v The State of Western Australia [73] - [76]. -- 6 of 17 -- [2026] WASC 255 MCGRATH J Page 7 a relevant factor.18 I do not accept that the obligation to provide written reasons is a relevant factor. 23 Another factor that may be relevant to the interests of justice is the length of the trial.19 24 A trial of extreme length may create problems for jurors who are required to forgo normal life commitments, or on whom such trials may place too great of a physical, mental or emotional burden.20 In addition, the greater the length of the trial, the greater the risk that an injustice will be created to the accused by the potential that the jury may be discharged for some reason, without reaching a verdict.21 25 There is not necessarily any time saved if an accused has a judge alone trial.22 Certainly not for the trial judge who will undoubtedly take a period of time at the conclusion of the trial to complete and deliver written reasons to be published at the delivering of the verdict. 26 Another factor that may be relevant to the interests of justice is the complexity of the trial, which may raise difficult questions of fact. Such complexity will likely be unreasonably burdensome to a jury.23 27 The fact that a State's case is based upon circumstantial evidence has also been considered to be a factor supporting a trial before a jury.24 I agree with the alternative view that there is no reason why either mode of trial is preferable where the State's case is based upon circumstantial evidence.25 28 In other cases, the nature of the evidence to be relied upon by the State may be considered to be so graphic or disturbing that a jury may be unable to properly consider its relevance and significance.26 Further, the evidence may involve intricate and disputed expert evidence or the 18 TVM v The State of Western Australia [32]; The State of Western Australia v Wark [2017] WASC 154 [108]. 19 Criminal Procedure Act 2004 (WA) s 118(5)(a). 20 Criminal Procedure Act s 118(5)(a). 21 The State of Western Australia v Rayney [37]. 22 The State of Western Australia v Rayney [37]; The State of Western Australia v Martinez [2006] WASC 25; (2006) 159 A Crim R 380 [29]. 23 Criminal Procedure Act s 118(5)(a). 24 The State of Western Australia v Martinez [36]. 25 Arthurs v The State of Western Australia [61] - [67]; TVM v The State of Western Australia [15]. 26 LFG v The State of Western Australia [337]; Bell v The State of Western Australia [No 2] [2014] WASC 260. -- 7 of 17 -- [2026] WASC 255 MCGRATH J Page 8 jury may have difficulty in applying different legal principles in the context of complicated questions of fact.27 29 In Steele v The State of Western Australia,28 the Court of Appeal observed: (7) In enacting s 118, Parliament must be taken to have known of the following well-established and long-standing principles in relation to criminal trials by or before juries: (a) The experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. (b) The criminal justice system, as administered by the appellate courts, assumes that, as a general rule, juries understand, and follow, the directions which trial judges give them. The assumed efficacy of the jury system, whereby the law proceeds on the basis that juries act only on the admissible evidence and in accordance with the directions of the trial judge, represents the policy of the common law. Although the criminal justice system assumes the efficacy of juries, it is not assumed that the decision-making or juries is unaffected by matters of possible prejudice. (c) The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. However, what is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. 30 The overarching consideration in determining whether it is in the interests of justice that an accused be tried by judge alone is whether the accused can receive a fair trial by jury.29 31 Therefore, pre-trial publicity is a significant factor. In TVM v The State of Western Australia, McKechnie J outlined the extent and nature of pre-trial publicity that may create an environment in which 27 LFG v The State of Western Australia [337]; The State of Western Australia v Brown [No 2] [2013] WASC 280; Chiha v The State of Western Australia [No 2] [2015] WASC 147. 28 Steele v The State of Western Australia [11]. 29 The State of Western Australia v Rayney [30]. -- 8 of 17 -- [2026] WASC 255 MCGRATH J Page 9 the accused is unable to receive a fair trial. McKechnie J stated the following:30 It can hardly be in the interests of justice to embark upon an unfair trial before a jury where the means are at hand to militate against the unfairness by ordering a trial by judge alone. A common example of unfairness is pre-trial publicity. Arthurs provides an extreme example of the corrosive and prejudicial effect of pre-trial publicity, but it is not necessary for an applicant to satisfy those extremes in order to persuade a court that in fairness the interests of justice might require trial by judge alone to overcome any lingering prejudice. I use the words 'lingering prejudice' because it is also both the law and the experience of the law that juries are, when properly directed, able to put aside prejudice and sympathy, and deliver verdicts on the facts in a dispassionate manner. Long experience with juries, which I cannot completely discount, has provided me with many examples where juries have delivered true verdicts, despite extraneous influences being brought to bear. 32 In addition, I agree with the observations of Commissioner Sleight in The State of Western Australia v Rayney regarding pre-trial publicity:31 The issue of pre-trial publicity in an application under s 118 has different considerations to an application made to stay a prosecution or adjourn a trial due to pre-trial publicity. The test on an application to stay or adjourn a trial is whether it is necessary to grant the application in the interests of ensuring a fair trial: see R v George (1987) 9 NSWLR 527 at 532-533 per Street CJ, Yeldham and Finlay JJ agreeing; Western Australia v BLM (2009) 40 WAR 414 per Buss JA, with whom Owen, Wheeler and Pullin JJA agreed. It is a ground that rarely succeeds. The reason for this is that an order staying or adjourning a trial can have serious repercussions of unfairness to the State and witnesses. Instead the law proceeds on the footing that the jury will receive and follow a direction from the trial judge to ignore any publicity or preconceived ideas and render a verdict based upon the evidence in court only: BLM (at [70] - [73]); John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344; R v Glennon (1992) 173 CLR 592 at 603 per Mason CJ and Toohey J. In Glennon Brennan J stated that '[o]f necessity, the law must place much reliance on the integrity and sense of duty of the jurors' in such circumstances (at 614) (my emphasis added). However, in an application under s 118 the State or witnesses will not suffer any unfairness if an order for a trial by judge alone is ordered. For this reason I believe there is more scope to take into account the potential of an unfair trial due to publicity and that a jury may not be able to put 30 TVM v The State of Western Australia [29]. 31 The State of Western Australia v Rayney [34]. -- 9 of 17 -- [2026] WASC 255 MCGRATH J Page 10 aside the influence of pre-trial publicity. The law is not driven by the same necessity to rely upon the jury system because on such an application the potential prejudice created by pre-trial publicity can perhaps be removed more effectively by the alternative mode of trial available: see Arthurs (at [87]). Accordingly, I believe that the law was correctly stated by EM Heenan J in Martinez when he said that an order for a trial by judge alone may be appropriate where there is 'a public climate of hostility or prejudice' (at [33]). 33 There has been support for judge alone trials where the issue for determination at trial is the mental capacity of the accused under s 27 of the Criminal Code. In TVM v The State of Western Australia McKechnie J observed that:32 Although there is a range of cases that have been submitted for trial by judge alone, some strands appear. A trial where the mental capacity of the accused is in question, especially where there is little dispute as to the facts, is often the subject of trial by judge alone. 34 In Arthurs v The State of Western Australia,33 Martin CJ observed that a trial by judge alone may be ordered when the state of mind of the accused is relevant and therefore, the findings in the trial may depend upon an assessment of expert evidence. His Honour referred to two previous cases in support of that proposition, being The State of Western Australia v Tarau34 and The State of Western Australia v Iley.35 There are now other cases in which an order for a trial by judge alone has been made where an issue at trial was the state of mind of the accused under s 27 of the Criminal Code.36 35 The Court of Appeal accepted in Hone v The State of Western Australia that it may be appropriate to order a trial by judge alone in a murder case involving an insanity defence.37 Miller JA stated:38 The psychiatric evidence to be led in the case was likely to be more properly determined by a judge alone than by a jury. This was because the psychiatric evidence was to be directed to the question of whether or not the accused was of unsound mind at the time of the commission of the offences. 32 TVM v The State of Western Australia [6]. 33 Arthurs v The State of Western Australia [91] - [93]. 34 The State of Western Australia v Tarau [2005] WASC 290. 35 The State of Western Australia v Iley [2006] WASC 107. 36 The State of Western Australia v Strabach [2012] WASC 97; The State of Western Australia v McDonald [2010] WASC 304; The State of Western Australia v Brown [No 2]; The State of Western Australia v Herbert [2017] WASC 101. 37 Hone v The State of Western Australia [2007] WASCA 283 [18] (Miller JA with Wheeler JA agreeing). 38 Hone v The State of Western Australia [18]. -- 10 of 17 -- [2026] WASC 255 MCGRATH J Page 11 36 However, it will not be axiomatic that a trial in which the insanity defence is to be determined will be conducted by a judge alone. In The State of Western Australia v Evans,39 Commissioner Sleight ordered a trial by judge alone in a case involving the insanity defence. The main basis for granting the trial by judge alone was pre-trial publicity.40 In his decision, Commissioner Sleight stated that he would not have granted a trial by judge alone on the basis of the other ground of the application, being the difficulty for the jury to resolve complex psychiatric evidence.41 Commissioner Sleight regarded the jury as being well able to deal with matters involving disputed psychiatric evidence and the behaviour of the accused at the relevant time.42 Though, it must be recognised that in The State of Western Australia v Evans there were further factual disputes involving a claim of the defence of provocation.43 That defence does involve an assessment of community standards. Evaluation of the interests of justice 37 The basis of the application for a trial by judge alone is that there is a single issue for determination at trial, which is whether the accused was of unsound mind within the terms of s 27 of the Criminal Code at the time of the alleged offending, and that the expert evidence that will be led at trial will be more properly considered by a judge sitting alone without a jury. 38 The application is supported by submissions filed on behalf of Mr Jalloh that confirm Mr Jalloh is pleading not guilty to the count on the indictment on the basis of unsoundness of mind pursuant to s 27 of the Criminal Code. Both counsel for the State and Mr Jalloh confirm that the issues at trial will be the mental state of Mr Jalloh at the time of the killing, whether any mental impairment deprived him of one or more of the capacities in s 27 and whether any such incapacity was independent of intentional intoxication. Both counsel submitted that the State and defence case do not involve any substantive factual issues requiring the application of objective community standards. 39 During submissions counsel indicated that the accused proposes to make admissions pursuant to s 32 of the Evidence Act 1906 (WA)44 to 39 The State of Western Australia v Evans [2012] WASC 87. 40 The State of Western Australia v Evans [9] - [24]. 41 The State of Western Australia v Evans [27]. 42 The State of Western Australia v Evans [27]. 43 The State of Western Australia v Evans [26]. 44 Affidavit of Mr Freitag affirmed 11 June 2026. -- 11 of 17 -- [2026] WASC 255 MCGRATH J Page 12 facilitate the conduct of the trial or by an agreed statement of facts. Therefore, it is anticipated that the expert witnesses may be the only witnesses required at trial. 40 The defence will rely upon the evidence of Dr Victoria Pascu, Consultant Forensic Psychiatrist, who has provided a report dated 18 November 2025. The State will rely upon the reports of Dr Elizabeth Tate, Consultant Forensic Psychiatrist, dated 12 June 2026 and Dr Jonathan Grasko, Consultant Toxicologist, dated 13 March 2026. 41 Dr Pascu stated the following: [95] From the information available to me and the history from Mr Jalloh, I am of the view that at the time of the alleged offences he was suffering from a relapse of the paranoid schizophrenia due to non-compliance with the treatment since his release from custody in December 2023 and cannabis use. He suffers from chronic paranoid schizophrenia which fulfils criteria for a mental impairment under s 27 of the Criminal Code. [96] There is no evidence to suggest that Mr Jalloh's behaviour at the time of the alleged offence was secondary to alcohol or other illicit substance use alone. He has a history of cannabis use and the drug screen following his arrest identified cannabis in his system. Given the history of paranoid schizophrenia dating back to at least 2012 in my opinion the cannabis may have contributed to worsening of the psychotic symptoms which were untreated for approximately three months prior to the alleged offence. [97] Regarding Mr Jalloh's mental state at the time of the alleged offence, in my opinion, from psychiatric point of view an insanity defence can be supported. Regarding the criteria of s 27 of the Criminal Code, at the time of the alleged offences, I am of the view that Mr Jalloh: • Was not deprived of the capacity to know what he was doing. • Was deprived of the capacity to control his actions given the underlying acute psychotic symptoms and impaired judgment due to his untreated mental illness likely complicated by cannabis use. • Was deprived of the capacity to know that he ought not to do the act due to his impaired mental state and impaired judgment. -- 12 of 17 -- [2026] WASC 255 MCGRATH J Page 13 42 Dr Tate diagnosed Mr Jalloh as meeting the criteria for substance use disorder (in remission in a protected environment); personality disorder (antisocial traits prominent); substance-induced psychotic disorder (in remission); and malingering. 43 Dr Tate stated there were several important contemporaneous sources of information to construct a clear picture of Mr Jalloh's mental state at the time of the offence namely, the police interview, CCTV footage and mental health assessment conducted in the days before and subsequent to the alleged offence. 44 Dr Tate stated that in her opinion, the primary criminogenic factors in the offending were his personality disorder, attitudes condoning violence, substance abuse and psychosocial factors. 45 Dr Tate expressed the following opinion in respect to whether the criteria under s 27 of the Criminal Code had been satisfied: [212] Criteria under Section 27(1): This section provides that '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'. [213] Capacity to know what he was doing: Mr Jalloh's account to me indicated that he understood what he was doing at the time of the offence. He reported having a good recollection of the incident and provided an organised and thorough account of the alleged incident. He said that he went out explicitly for the purpose of killing a woman. He described feeling angry and sad when he stabbed her and said that immediately after the offence he regretted what he had done and felt 'like a loser'. He ran away from locals who were chasing him and denied being involved when challenged, suggesting he was aware of the seriousness of his actions and potential consequences. [214] Capacity to control his actions: Mr Jalloh's account of the incident indicated that he went out that night with the intention of killing a woman and took with him a knife for that purpose. The account he gave to Dr Pascu indicated that his original target was a person named Teresa but he changed his mind after going to her house and seeing there were CCTV cameras. He did not provide the same account to me but he did say that he had seen the victim and her cousin before this indicated a considered choice rather than a random attack which implied an ability to exercise control over his behaviour. -- 13 of 17 -- [2026] WASC 255 MCGRATH J Page 14 [215] Mr Jalloh appeared calm and co-operative in the immediate aftermath of his arrest and throughout his time in police custody. He did not appear behaviourally disturbed or erratic. He followed police instructions in the van and at the station. He made no statements during this period suggesting he held any delusional beliefs or was actively responding to hallucinations. He underwent mental health assessments on 18 and 19 March during which no overt symptoms of psychosis were elicited. During his admission to the Frankland Centre he was not aggressive and did not present with any risk behaviours. He followed direction and behaved appropriately. On this basis it appeared that at the time of the incident he had the capacity to control himself. [216] Capacity to know he ought not to do the act: Mr Jalloh denied the offending when he was challenged by locals immediately after the alleged offence. He denied it to police on arrest. He denied involvement in the incident during a lengthy police interview a few hours after the incident. When confronted with evidence which appeared to clearly identify him as the perpetrator he became uncomfortable and said he felt 'confused' and attributed this to his 'schizophrenia'. He maintained his denial for a long time after the incident. I believe his sustained denial and guarded responses were his attempt to deny involvement in the offence to escape culpability. He had a history of denying or minimising his offending. This appeared to show an understanding of the seriousness of his behaviour and capacity to know that what he did was wrong and that he ought not to do it. [217] In my opinion Mr Jalloh was not experiencing significant psychosis at the time of the incident. Any symptoms he may have experienced were likely to have been precipitated by intoxication and not of sufficient severity to completely deprive him of capacity. [218] Criteria under Section 27(2): This section provides that 'A person whose mind at the time of his doing or omitting to do an act is affected by delusions on some specific matter or matters but who is not otherwise entitled to the benefit of subsection (1) is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist'. [219] There did not appear to be any evidence to suggest that Mr Jalloh was experiencing delusions on a specific matter which could be considered to deprive him of the capacity to form intent under Section 27(2). -- 14 of 17 -- [2026] WASC 255 MCGRATH J Page 15 46 Dr Tate considered whether the accused's consumption of cannabis may have affected his mental state or symptoms and expressed the opinion that: [243] Mr Jalloh's reports of his drug use had been highly inconsistent and unreliable but there was strong longitudinal evidence of heavy polysubstance use and it was highly likely he was using drugs regularly at the time of the alleged offence. He told Dr Pascu he was using ten bongs of cannabis per day. This quantity of cannabis is very significant even for a habitual user. He was likely to have been under the influence at the time of the offence and subsequent arrest and police interview. Reports from witnesses were consistent with recent cannabis use, describing bloodshot eyes and a dazed appearance. He was also described as appearing immune to pain after being struck by a mailbox which was potentially suggestive of intoxication with methamphetamine. I believe that he was under the influence of cannabis at the time of the incident and that any psychiatric symptoms Mr Jalloh may have experienced at the time of the alleged offence would have occurred in this context. I do not think it could be established that symptoms were entirely independent of drug use. 47 Dr Grasko expressed an opinion that cannabis is known to precipitate and exacerbate psychosis, particularly in individuals with an existing diagnosis of schizophrenia or a vulnerability to psychotic illness. Accordingly, the accused's consumption of cannabis and level of intoxication may have impacted his mental illness or symptoms at the time of the incident. Dr Grasko stated that he agrees with Dr Pascu that the accused's behaviour at the time of the alleged offending was not solely due to cannabis intoxication. The cannabis use may have contributed to the worsening of the accused's psychotic symptoms through one or more mechanisms. Assessment and conclusion 48 It may be concluded from the submissions of counsel that the principal issue for determination at trial will be the accused's mental capacity at the time of the alleged offending and whether any incapacity under s 27 was independent of intentional intoxication. That determination will rely, to a significant degree, on the evidence of the expert witnesses. The experts have expressed differing opinions as to whether the criteria under s 27 of the Criminal Code has been satisfied. Further, Dr Tate's opinion raises for consideration the issues of whether the -- 15 of 17 -- [2026] WASC 255 MCGRATH J Page 16 accused intentionally caused himself to become intoxicated and therefore, whether s 27 of the Criminal Code applies.45 49 I am satisfied that the expert evidence should be assessed by a judge sitting alone without a jury. There is no issue to be resolved at trial that will require a jury to consider objective community standards. 50 During the hearing of this application, I raised with counsel the proposed course to be taken at trial in respect to the presentation of the evidence. I expressed the view that it is preferable that counsel prepare an agreed statement of material facts to be relied upon at trial. The proposed alternative approach of the parties to tender the entire State brief of evidence may be problematic at trial. Counsel for the State submitted that it is being proposed that an agreed statement of facts will be prepared and that a narrow brief of evidence will be prepared with only the statements that found the agreed facts. Further, counsel stated that the trial will involve assessing the inferences that have been drawn by the experts in respect to the agreed facts. 51 The parties should seek to formulate an agreed statement of material facts. Counsel should assess which statements of witnesses and exhibits are necessary. If so, that evidence should be received at trial with counsel identifying the purpose of the material and any issues that may be in dispute. 52 Accordingly, it is in the interests of justice to make an order that there be a trial by judge alone and I exercise my discretion by so ordering. 45 Criminal Code s 28. -- 16 of 17 -- [2026] WASC 255 MCGRATH J Page 17 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. JK Associate to the Hon Justice McGrath 24 JUNE 2026 -- 17 of 17 --