Dodd v Director of Public Prosecutions (WA)
[2022] WASC 116
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: DODD -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2022] WASC 116
CORAM: MCGRATH J
HEARD: 28 MARCH 2022
DELIVERED : 8 APRIL 2022
FILE NO/S: SJA 1087 of 2021
BETWEEN: TRAVIS JOHN DODD
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G LAWRENCE
File Number : PE 109296 of 2014, PE 109297 of 2014, PE 109301 of 2014, PE 17987 of 2015, PE 24481 of 2015, PE 24482 of 2015, PE 24483 of 2015, PE 24485 of 2015, PE 24486 of 2015, PE 24487 of 2015, PE 24488 of 2015, PE 24489 of 2015, PE 24490 of 2015, PE 24491 of 2015, PE 24492 of 2015, PE 24493 of 2015
Catchwords:
Criminal law - Fitness to plead - Whether right of appeal from decision of magistrate finding accused not mentally fit to stand trial under s 12 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) - Whether decision of magistrate finding accused not mentally fit to stand trial was a miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA), s 6, s 7
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 12
Magistrates Court Act 2004 (WA), s 16
Result:
Leave to appeal is granted on ground 2
Leave is not granted on ground 1
Appeal is allowed
Matter is remitted to the Magistrates Court to be dealt with according to law
Category: B
Representation:
Counsel:
| Appellant | : | Ms N R Sinton |
| Respondent | : | Mr T B L Scutt |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Cohen v Gates [2018] WASC 247
MCGRATH J:
On 29 June 2016, the appellant appeared before the learned Magistrate in the Magistrates Court at Perth for a hearing to determine whether he was mentally fit to stand trial in respect to 16 criminal charges. His Honour determined that the appellant was not mentally fit to stand trial due to his mental illness, pursuant to s 12 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (CLMIA Act).
Consequently, the learned Magistrate, being satisfied that the accused would not become mentally fit to stand trial within 6 months of making his finding, made a custody order in respect to the accused pursuant to s 16(5) of the CLMIA Act. The effect of a custody order is that, even where charges are dismissed, the accused is detained indefinitely in an authorised hospital, detention centre, declared place or a prison, subject to periodic reviews by the Mentally Impaired Accused Review Board. Since the relevant custody order was made by the learned Magistrate, the appellant has been detained in an authorised mental hospital.
On 18 November 2021, the appellant filed a notice of appeal against the custody order pursuant to s 12(4) of the CLMIA Act. The appellant relies upon two grounds of appeal, each contending that there has been a miscarriage of justice but for different reasons.
The respondent concedes ground 2, which pleads that there has been a miscarriage of justice in that the court ordered report of Dr Mark Hall, dated 29 October 2015, was not before the learned Magistrate when he determined the appellant’s fitness to stand trial on 29 June 2016. Instead, only Dr Hall’s earlier report, dated 12 August 2016, was before the learned Magistrate.
A preliminary question arose during the hearing as to whether or not the decision may be the subject of an appeal under pt 2 of the Criminal Appeals Act 2004 (WA). The appellant submitted that the appeal cannot be brought under pt 2 of the Criminal Appeals Act but may be brought under the Supreme Court Act 1935 (WA). The respondent contended that the appeal does fall within the categories of decisions that can be the subject of an appeal under pt 2 of the Criminal Appeals Act.
For the following reasons, I am of the view that a determination that an accused is not mentally fit to stand trial does fall within the category of decisions that can be subject to appeal under pt 2 of the Criminal Appeals Act. Further, I am satisfied that leave to appeal is granted on ground 2 and that the appeal must be allowed on that ground. Accordingly, the matter must be remitted back to the Magistrates Court to determine according to law.
Extension of time in which to appeal
The appellant makes application for an extension of time in which to appeal. The appeal was filed on 19 November 2021, with the last day for appeal being 19 July 2016. Accordingly, the appeal was filed in excess of five years after the decision of the learned Magistrate. Ms Sinton, counsel for the appellant, has explained the reason for the delay in her affidavit affirmed on 19 November 2021. Ms Sinton deposes that reports prepared for the purpose of reviews by the Mentally Impaired Accused Review Board raised doubts concerning the appellant’s diagnosis of a cognitive impairment arising from a hypoxic brain injury.[1] I am satisfied that the explanation is most satisfactory and that the delay has not caused the respondent any prejudice. To refuse the appeal on the grounds of delay would allow a miscarriage of justice to stand uncorrected. Accordingly, I grant the appellant an extension of time in which to appeal.
[1] Affidavit of Ms Sinton affirmed 19 November 2021 [5].
Application to adduce further evidence
The appellant makes an application to adduce further evidence, namely, medical reports from Dr Vidovich dated 18 October 2021, Dr van Hattem dated 16 November 2021 and from Dr Hall dated 29 October 2015.[2]
[2] Application to adduce further evidence filed 10 February 2022; Affidavit of Ms Sinton affirmed 10 February 2022 attaching medical reports.
The general principle is that an appeal court must decide an appeal on the evidence and material before the learned Magistrate at the time of the decision. However, s 14(5) of the Criminal Appeals Act provides that on an appeal against sentence, the Supreme Court may have regard to any relevant matter that has occurred between when the offender was convicted and whether appeal was heard.[3] Section 40(1)(e) of the Criminal Appeals Act provides a discretion to admit other evidence on appeal.[4]
[3] Criminal Appeals Act 2004 (WA), s 14(5).
[4] Criminal Appeals Act 2004 (WA), s 40(1)(e).
The respondent did not oppose the application to adduce the further evidence. The respondent concedes that the report of Dr Hall, dated 29 October 2015, was not before the learned Magistrate and should have been. The consequence of that failure is that there has been a miscarriage of justice. Further, the reports of Dr Vidovich and Dr van Hattem provide assessments concerning the diagnosis of the appellant.
I will grant leave to the appellant to adduce the further evidence.
Proceedings in the Magistrates Court
The appellant was charged with 16 offences including two counts of unlicensed possession of a firearm or ammunition, indecent assault, aggravated burglary of a dwelling and three counts of burglary with intent.
On 29 June 2016, the appellant appeared before the learned Magistrate at a hearing to determine whether or not the appellant was not mentally fit to stand trial pursuant to s 12(1) of the CLMIA Act. At the hearing no witnesses were called to give evidence. Rather, the prosecution and the appellant relied upon written and oral submissions.
The learned Magistrate was required to apply the relevant legal principles and did so without error. Relevantly, an accused can be found unfit to stand trial if, by reason of a mental impairment, the person lacks one or more of the capacities in s 9 of the CLMIA Act. Section 8 of the CLMIA Act, defines mental impairment as meaning intellectual disability, mental illness, brain damage or senility.[5] A person is presumed to fit to stand trial until found otherwise under pt 3 of the CLMIA Act.[6] The question of whether an accused is not mentally fit to stand trial is to be decided by the presiding judicial officer, on the balance of probabilities, after inquiring into the question and informing himself or herself in any way the judicial officer thinks fit.[7]
[5] Criminal Law (Mentally Impaired Accused) Act 1996, s 8.
[6] Criminal Law (Mentally Impaired Accused) Act 1996, s 10.
[7] Criminal Law (Mentally Impaired Accused) Act 1996, s 12(1).
It the court decides that the accused is not mentally fit to stand trial and is satisfied that the accused will not become mentally fit to stand trial within six months after finding that the accused is not mentally fit, the court must make an order releasing the accused or must impose a custody order. If the court is not so satisfied, the court must adjourn the proceedings in order to see whether the accused will become mentally fit to stand trial.[8]
[8] Criminal Law (Mentally Impaired Accused) Act 1996, s 16(2).
At the commencement of the hearing, the learned Magistrate stated that a psychiatrist, Dr Siva Bala, had determined that the appellant was not mentally fit to stand trial and that he was unlikely to become fit in the next six months.[9] The learned Magistrate observed that he had received written submissions from both parties which confirmed that that finding was not in dispute.[10]
[9] ts 3 - 4 (29/06/2016).
[10] ts 4 (29/06/2016).
Before his Honour were two reports, being a report from Dr Hall dated 12 August 2015 and a report from Dr Siva Bala dated 6 April 2016. No contrary opinion was provided. Dr Hall, in his report of 12 August 2015, expressed the opinion that 'the appellant suffers from paranoid schizophrenia and a neurocognitive impairment related to brain damage'.[11] Dr Hall was further of the opinion that the appellant was, from a psychiatric and medical perspective, not mentally fit to stand trial.[12] Dr Hall expressed the opinion that it may be beneficial to ensure that the appellant was not abusing sedating medications, that is by being overmedicated, or using illicit substances. In the absence of his being overmedicated or abusing medication or illicit substances, the appellant would not be expected to become fit within six months.[13]
[11] Report of Dr Hall dated 12 August 2015 [22].
[12] Report of Dr Hall dated 12 August 2015 [23].
[13] Report of Dr Hall dated 12 August 2015 [24].
Dr Bala similarly diagnosed the appellant with a neurocognitive disorder, following hypoxic brain injury, and paranoid schizophrenia.[14] Dr Bala was of the opinion that the appellant was not mentally fit to stand trial as a result of his brain injury, and that, as this was a static disability, his fitness may not improve in the next six to 12 months.[15]
[14] Report of Dr Bala dated 6 April 2016, p 4.
[15] Report of Dr Bala dated 6 April 2016, p 5 - 6.
The learned Magistrate decided that 'because of his illness', the appellant was 'unfit to plead' and that he was satisfied that the appellant was unlikely to become mentally fit within six months.[16] Given that his Honour was satisfied, on the balance of probabilities, that the appellant was not mentally fit to stand trial, and would not become so within six months after the finding that he was not fit, his Honour had to either make an order releasing the appellant or make a custody order.[17] The learned Magistrate determined that, having regard to the considerations set out in s 16 of the CLMIA Act, a custody order was the only appropriate determination.[18]
[16] ts 12 (29/06/2016).
[17] Criminal Law (Mentally Impaired Accused) Act 1996, 16(2) and (5).
[18] ts 17 (29/06/2016).
Grounds of appeal
The amended Notice of Appeal pleads the following two grounds of appeal:
1.The appellant was determined to be unfit to stand trial as a result of a cognitive impairment resulting from a hypoxic brain injury. Subsequent reports have confirmed that the appellant does not have a hypoxic brain injury or major cognitive impairment. As such, the finding that he was unfit to stand trial and consequential imposition of an indefinite custody order has resulted in a miscarriage of justice.
2.There was a miscarriage of justice in that the court ordered report of Dr Mark Hall dated 29 October 2015 was not before the Magistrate who determined the issue of the appellant's fitness to stand trial on 29 June 2016.
A preliminary issue arises for determination. The appellant contends that the appeal does not fall under pt 2 of the Criminal Appeals Act but that the Supreme Court has the jurisdiction pursuant to s 20 of the Supreme Court Act. Section 20 provides that the Supreme Court has jurisdiction to hear and determine any application, or any appeal, whether by case stated or otherwise, that the Court or judge is empowered by a written law to hear and determine. The appellant submits that the appeal is brought pursuant to order 65 of the Rules of theSupreme Court 1971 (WA). The respondent contends that the appeal may be brought under pt 2 of the Criminal Appeals Act.
Section 12(4) of the CLMIA Act expressly provides that the prosecution or an accused may appeal against a judicial officer's decision that the accused is not mentally fit to stand trial.
Section 7 of the Criminal Appeals Act relevantly provides:
7.Right of appeal
(1)A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.
(2)The Attorney General may appeal to the Supreme Court against a decision of a court of summary jurisdiction.
(3)The following decisions of a court of summary jurisdiction cannot be the subject of an appeal under this Part -
(a) a decision that is declared by an Act to be final or not appealable;
(b) a decision to commit or not to commit an accused for trial or sentence;
(c) a decision as to bail.
(4)Except as provided by this section, no appeal lies against a decision of a court of summary jurisdiction.
(5)Subsections (1), (2) and (4) are subject to any other written law and in particular to the Children's Court of Western Australia Act 1988 Part 5.
The decision of a magistrate finding that a person is not mentally fit to stand trial is a decision that is appealable, either by the prosecution or the accused, by virtue of s 12(4) of the CLMIA Act, which is a provision in 'any other written law' as referred to in s 7(5) of the Criminal Appeals Act.
In contrast, a decision to make a custody order, under s 16(5)(b) of the CLMIA Act, is not a decision that can be the subject of an appeal under pt 2 of the Criminal Appeals Act.[19] There is no express provision in the CLMIA Act that provides that the decision to make a custody order under s 16 is appealable. A decision to impose a custody order under s 16(5)(b) of the CLMIA Act is not one of the items listed in s 6 of the Criminal Appeals Act. A custody order is amenable to review under s 36 of the Magistrates Court Act 2004 (WA).[20]
[19] Cohen v Gates [2018] WASC 247.
[20] Cohen v Gates [2018] WASC 247 [60].
Accordingly, I am of the view that the appellant has a right to appeal the decision of the learned Magistrate that he was not mentally fit to stand trial under pt 2 of the Criminal Appeals Act.
Assessment of the Grounds of Appeal
I now turn to the grounds of appeal.
Ground 2
First, I will consider ground 2. By this ground, the appellant contends that there has been a miscarriage of justice in that the second report of Dr Hall, dated 29 October 2015, was not before the learned Magistrate at the hearing on 29 June 2016.
The significance of Dr Hall’s report of 29 October 2015 report is shown by the following paragraphs of the report which state as follows:[21]
In my opinion, the timeline and collateral history (as currently available) do not support the hypothesis that Mr Dodd's cognitive impairment is primarily due to cerebral hypoxia sustained in January 2015. Rather, it appears more likely that any neurological damage that may have occurred at that time was subtle, but sufficient to exacerbate the manifest severity of his schizophrenic formal thought disorder, the latter in turn having arisen due to alcohol and illicit drug use during 2014 and into the earlier part of 2015, in combination with non‑compliance with antipsychotic medication.
Mr Dodd remains unwell with respect to his schizophrenia, possibly due to an inadequate dose of antipsychotic medication. Accordingly, he currently remains unfit to stand trial.
It is my opinion, however, that Mr Dodd has a very good prospect of becoming fit to stand trial within a few months (certainly less than six months) provided he adheres to treatment with antipsychotic medication and abstains from the use of illicit substances. However, he requires increase in the dose of antipsychotic medication from its present level, and I have taken the liberty of arranging that with prison mental health staff.
[21] Report of Dr Hall dated 29 October 2015 [19] - [21].
Further, Dr Hall stated in his report of 29 October 2015 the following: [22]
The report dated 12 August 2015 raised the concern that, despite the claims of Mr Dodd to the contrary, his psychiatric presentation at that time may have been influenced by ongoing use of illicit substances, abuse of prescribed sedating medication, lack of treatment with antipsychotic medication or a combination of the above. The implication of the above is that impairment related to such factors may have an element of reversibility, compared to impairment due solely to hypoxic brain damage, and would ideally need to be excluded or managed to reliably assess fitness to stand trial.
[22] Report of Dr Hall dated 29 October 2016 [3].
Counsel for the appellant submitted that the report of Dr Hall, dated 29 October 2015, is significant in that the psychiatrist rejects the previous diagnosis of cognitive impairment caused by hypoxic brain injury, and finds the appellant was likely to become fit to stand trial, provided he adhered to treatment with antipsychotic medications.
Dr Bala, in his report, observed that he had access to and read Dr Hall's report dated 29 October 2015. However, Dr Bala stated, in his opinion, in line with Dr Hall's previous fitness to plead report, that the appellant continued to have significant cognitive impairment.[23] Therefore, the opinion of Dr Bala was consistent with the previous opinion of Dr Hall from 12 August 2015 but was contrary to the report of Dr Hall dated 29 October 2015.
[23] Report of Dr Siva Bala dated 6 April 2016 [14].
Regrettably, the report of Dr Hall, dated 29 October 2015, was not before the learned Magistrate. On a fair reading of the transcript of the hearing before his Honour on 29 June 2016, it is clear that the learned Magistrate did not have access to either of the two reports of Dr Hall in advance of the hearing.[24]
[24] ts 4 and 9 (29/06/2016).
It is unclear why Dr Hall's report dated 29 October 2015 was not before the learned Magistrate, but clearly that report should have been.
The prosecution's written submissions, provided to the learned Magistrate, referred only to the psychiatric report of Dr Siva Bala dated 6 April 2016.
The defence’s written submissions before the learned Magistrate referred only to Dr Siva Bala's report.[25] The transcript of the hearing before the learned Magistrate supports the finding that the learned prosecutor did not have advance access to either of the reports of Dr Hall. Further, in oral submissions with respect to the factors under s 16 of the CLMIA Act, defence counsel briefly referred only to the report of Dr Hall dated 12 August 2015. The submissions did not refer at all to the report of Dr Hall dated 29 October 2015. Given that defence counsel did not appear to have access to Dr Hall's report dated 29 October 2015, Counsel understandably effectively submitted that the learned Magistrate should find the appellant mentally unfit to stand trial referring to the 'unequivocal, uncontradicted findings in Dr Bala's report'.[26]
[25] Defence written submissions dated 26 June 2016 [1] - [6].
[26] Defence written submissions dated 26 June 2016 [2].
During discourse, the defence handed a report of Dr Hall to the learned Magistrate, which was identified as the report referred to in the appellant’s written submissions. Therefore, that report must have been the first report of Dr Hall dated 12 August 2015. Upon receiving the report, the magistrate then stated:
The doctor from the Kimberley service (ie. Dr Bala) and Dr Hall, they're consistent.
to which defence counsel responded:
Yes, your Honour. Absolutely.[27]
Conclusion on ground 2
[27] ts 9 - 10 (29/06/2016).
It is accepted by the respondent that had the expert report of Dr Hall, dated 29 October 2015, been before the learned Magistrate, it is unlikely his Honour would have proceeded to find the appellant mentally unfit to stand trial as at 29 June 2016. The respondent submits that it is likely that the learned Magistrate would have further adjourned the matter to obtain an updated opinion from Dr Hall and, if necessary, to have called the experts give evidence, at the hearing, to resolve any difference in the opinions.
I observe that the report of Dr Vidovich suggests it is quite possible that any further examination of the appellant later in 2016 would have revealed that the appellant had become mentally fit to stand trial.[28] The respondent states that that evidence, while speculative and in hindsight, does support a finding that if Dr Bala and Dr Hall had been called to give evidence, the further opinion of Dr Hall in his second report may have ultimately been preferred to that of Dr Bala. The respondent says that the fresh evidence, whilst not of itself establishing the miscarriage of justice on ground 1, reinforces the basis for the concession with respect to ground 2.
[28] Report of Dr Mandy Vidovich dated 18 October 2021, p 5.
Accordingly, I am satisfied that the fact that Dr Hall's report of 29 October 2015, was not before learned Magistrate at the hearing on 29 June 2016 denied him highly relevant evidence that would bear significantly on the question of whether the appellant was then mentally not fit to stand trial.
I now turn to whether there has been a miscarriage of justice. Even if a ground of appeal might be decided in favour of an appellant, this court may dismiss an appeal, under pt 2 of the Criminal Appeals Act, when it considers that no substantial miscarriage of justice has occurred.[29]
[29] Criminal Appeals Act 2004, s 14(2).
I am of the view that there has been a miscarriage of justice with respect to the decision made by the learned Magistrate, pursuant to s 12 of the CLMIA Act.
Accordingly, leave is granted on ground 2 and the appeal is allowed.
Ground 1
By ground 1, the appellant contends that the decision of the learned Magistrate that he was not mentally fit to stand trial was based on the finding that he had a cognitive impairment resulting from a hypoxic brain injury. The appellant submits that subsequent reports have confirmed that he does not have a hypoxic brain injury or major cognitive impairment. Accordingly, the finding that he was not mentally fit to stand trial and the consequential imposition of a custody order has resulted in a miscarriage of justice.
In support of ground 1 the appellant relies on the reports of Dr Vidovich and Dr van Hattem.
I will outline the salient aspects of the two reports.
Dr Vidovich referred to the fact that further psychiatric assessments have raised some conjecture as to whether the appellant suffers from schizophrenia, or whether his experiences of mental illness are associated with substance abuse. Dr Vidovich stated as follows: [30]
Additionally, there is no medical evidence to support Mr Dodd having suffered a significant brain injury and cognitive impairment at the time of an admission to hospital in January 2015 following a suspected heroin overdose. The primary focus of his treatment whilst in hospital was managing his acute renal failure, aspiration pneumonia and rhabdomyolysis. There was no deterioration in his conscious state whilst in hospital and neuroimaging at the time was within normal limits. He discharged against medical advice and there is no medical documentation to indicate that he required follow up with respect to brain injury.
Notably, at the time of his 2015 and 2016 psychiatric evaluations, it was detailed that there were unusual inconsistencies and features of Mr Dodd's presentation. Whilst concern was raised regarding the potential influence of secondary gain and additional factors (e.g. medication regime; substance abuse) upon his presentation, a formal evaluation of his cognition was not undertaken until after his custody order was made.
From a cognitive perspective, and upon reflection of the data obtained at the time of his 2016 neuropsychological assessment, Mr Dodd would likely have been considered fit to plead and stand trial, pursuant to the seven criteria (a) to (g) of s 9 of the Criminal Law (Mentally Impaired Accused) Act 1996, if provision for accommodations were made.
[30] Report of Dr Vidovich dated 18 October 2021, p 4 - 5.
Dr van Hattem expressed the following opinion in his report: [31]
It is my opinion that Mr Dodd has schizophrenia, and this qualifies as a mental disorder for the purposes of the CLMIA Act. This was recognised at the time of the initial fitness reports, but not considered to be the primary reason for Mr Dodd being found unfit to stand trial.
I do not dispute the initial psychiatric fitness reports, in the sense that based on the information available at that time and the way Mr Dodd presented at interview, in my opinion the most reasonable conclusion would have been to find him unfit to stand trial. In my opinion, it was also reasonable to consider that the suspected reason for his unfitness, a severe hypoxic brain injury, would probably not improve substantially over a period of six months.
With the benefit of far more information that was available at the time of the initial fitness assessments, I believe that Mr Dodd did not have a severe hypoxic brain injury at the time he was found unfit to stand trial. He may have had a less severe brain injury, or his presentation may have been influenced by unstated sedative use, or he may have been intentionally presenting himself in a particular way to achieve a perceived benefit, or some combination of those possibilities.
With the benefit of hindsight, it is my opinion that Mr Dodd most likely would have been fit to stand trial at the time of the psychiatric assessment that occurred four months after the custody order was made, indicating that he would have become fit within the six‑month timeframe specified in the Act.
Based on his answers to questions at the time of my assessment interview, it is my opinion that if Mr Dodd were given the opportunity to be retried on the index charges, he would be fit to stand trial.
[31] Report of Dr van Hattem dated 16 November 2021 [43] - [47].
The respondent does not concede ground 1 and submits that leave should not be granted. In any event, as I have observed, the respondent concedes that the appeal should be allowed on ground 2. I will outline the respondent’s submissions.
The respondent submits that the effect of the reports of Dr Vidovich and Dr van Hattem do not suggest any miscarriage of justice arising from the learned Magistrate's decision under s 12 of the CLMIA Act but rather, that any miscarriage arose quite discretely from the subsequent decision under s 16 of the CLMIA Act. As I have observed, the decision under s 16 is not appellable but is amendable to a review order, pursuant to s 36 of the Magistrates Court Act 2004 (WA). The respondent submits that if the reports of Dr Vidovich and Dr van Hattem were before the learned Magistrate he may have still, correctly, found that the appellant was presently not mentally fit to stand trial under s 12 of the CLMIA Act but would have likely not been satisfied under s 16 of the CLMIA Act that the accused would not become mentally fit to stand trial within six months, and hence would not have made the custody order.[32]
[32] Respondent's written submissions [32].
The respondent submits that the precise cause of the appellant's unfitness, whether hypoxic brain injury or paranoid schizophrenia, for which he was insufficiently medicated and non‑compliant with medication, or some other cause, would not alter the findings as to the appellant's 'present fitness' made on 29 June 2016. There is no requirement under the CLMIA Act that before a person may be found to be mentally unfit to stand trial, the precise diagnosis or cause of that unfitness must be identified.
I accept the respondent’s submission concerning ground 1. I am not satisfied that leave should be granted in respect to ground 1.
Conclusion
For the reasons given, leave to appeal is granted on ground 2 and the appeal is allowed. Leave to appeal is not granted on ground 1. I set aside the learned Magistrate's decision that the appellant was not mentally fit to stand trial. I also set aside the custody order being an order made as a result of the decision under s 12 of the CLMIA Act pursuant to s 14(1)(c) of the Criminal Appeals Act. The matter must be remitted to the Magistrates Court for the matter to dealt with at a hearing according to law.
I observe that the appellant has spent a significant period of time incarcerated. Although I have ordered that the matter be remitted to the Magistrates Court for a hearing, it is for the prosecution to determine whether the proceedings will continue.
It must be understood that a custody order is different to the regime in respect to involuntary patients under the Mental Health Act. A custody order should only be used if the circumstances require that the order is necessary under the statutory regime. If a person has already spent a period in custody that exceeds the sentence that may have been imposed, then this is a relevant factor to consider for the prosecution in respect to the future conduct of the matter.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to the Judge
8 APRIL 2022