The State of Western Australia v Chokolich - [2018] WASC 220

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CHOKOLICH [2018] WASC 220
CORAM:   HALL J
HEARD:   20 JULY 2018
DELIVERED          :   20 JULY 2018
PUBLISHED           :   25 JULY 2018
FILE NO/S:   INS 298 of 2017
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
STEVEN JOHN CHOKOLICH
Accused

Catchwords:

Criminal law - Fitness to stand trial - Whether accused fit or would become fit within six months - Whether custody order should be made

Legislation:

Criminal Law (Mentally Impaired Accused) Act 1966 (WA), s 8, s 9, s 10, s 11, s 12, s 19

Result:

Indictment quashed
Custody order made

Category: B

Representation:

Counsel:

Applicant	:	Mr NR Cogin
Accused	:	Mr S Rafferty

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Accused	:	Seamus Rafferty Barrister & Solicitor

Case(s) referred to in decision(s):

Nil

HALL J:

The accused is charged that on 4 October 2016 at Balga he murdered his mother, Barbara Anne Chokolich. An issue was raised as to the accused's fitness to stand trial. On 20 July 2017 a hearing was conducted to decide that issue.
At the conclusion of the hearing I decided that due to his serious mental illness the accused was not fit, and would not in the future be fit, to stand trial. I was also satisfied that a custody order was appropriate. I made orders quashing the indictment and making a custody order pursuant to s 19(4) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act). I gave brief oral reasons for my decision and said that more detailed written reasons would be published in due course.

Delay

The question of the accused's fitness to be tried was originally set down for a hearing on 29 March 2018. That hearing could not proceed because of the unavailability of an expert report that had been ordered. The delay which was occasioned was avoidable. I will set out the circumstances below to ensure that there is no repetition of the events that caused this delay.
On 30 October 2017 the matter was listed for directions. At that stage a report commissioned by the lawyers for the accused had been obtained. The State applied for a court‑ordered report to be obtained from the accused's treating psychiatrist in order to obtain the most current information. There was no objection from counsel for the accused, and an order in those terms was made. The relevant form requesting the report was sent to Community Corrections, Department of Corrective Services on the same day as the order was made.
As the date of the hearing approached, inquiries were made by the court as to when the report would be produced. My Associate was advised that the report request had been forwarded to the Frankland Centre on 7 November 2017. Despite further follow‑up requests a report was not forthcoming.
On 26 March 2018 a letter was received from a consultant psychiatrist from the treating team of the accused at the Frankland Centre. The letter gave a brief account of the accused's current condition and his treatment. The letter did not address the question of fitness to be tried, and, in particular, the statutory criteria that are relevant to that question. The letter did not purport to be the required report, indeed it concluded by stating:
It is not within the remit of the treating team to provide a medico‑legal opinion on the issue of fitness to plead as defined by Section 9 of the Criminal Law (Mentally Impaired Accused) Act 1996. Should the court have concerns over the defendant's fitness to enter a plea, an independent psychiatric assessment should be sought.
The reason why it was not within the 'remit' of the treating psychiatrist to provide the report was not explained. Nor was there any explanation of why the court had not been advised of the difficulty until shortly before the hearing. A report was needed in order to determine the question of fitness to be tried and the absence of a report made it necessary to adjourn the hearing and order a new report.
At the hearing on 29 March 2018 counsel for the accused advised the court that psychiatrists at the Frankland Centre had received advice that they cannot provide fitness to plead reports if they are the treating doctors. Section 12 of the Act which empowers the court to order a report by a psychiatrist makes no such distinction. I am not aware of the content of any advice, but I do appreciate that in some cases the ethical duties of an expert witness will conflict with those of a treating doctor. Having said that, I note that the Professional Practice Guidelines of the Royal Australian and New Zealand College of Psychiatrists recognises that a treating psychiatrist may be required to provide a medico‑legal report, including where statutory requirements demand such reports (Guideline 11, par 4). It may well be that, where possible, the best course is to obtain an independent report, but that does not preclude a report being obtained from a treating psychiatrist in some circumstances.
Where a report has been ordered from a doctor who considers that he or she would be ethically compromised if required to comply, the proper course is for the doctor to promptly advise the court of the difficulty. It is not open to ignore or to choose not to comply with a court order. The doctor must request that he or she be relieved of the legal obligation to comply with the order. This should be done at the earliest possible time so that alternative arrangements can be made.

Procedure

An accused is presumed to be mentally fit to stand trial until the contrary is found under s 10 of the Act. The question of whether an accused is mentally fit to stand trial may be raised in the Supreme Court either before or after an indictment is presented or before or after a jury is sworn: s 11 of the Act. In the present case the accused was committed for trial to this court and an indictment has been presented which is dated 24 October 2017.
The question of fitness to be tried may be raised by the prosecution or the defence or the presiding judicial officer. In this case, both parties agreed that this was a question requiring the determination of the court.
The question of whether an accused is not mentally fit to stand trial is to be decided by the court on the balance of probabilities. In deciding this question the presiding judicial officer can inform himself or herself in any way he or she thinks fit: s 12(1) of the Act. The court may order reports from a psychiatrist or other appropriate expert for this purpose.
Section 9 of the Act defines the circumstances in which an accused person is not mentally fit to stand trial. That section provides as follows:
9.Mental unfitness to stand trial, definition
An accused is not mentally fit to stand trial for an offence if the accused, because of mental impairment, is ‑
(a)unable to understand the nature of the charge; or
(b)unable to understand the requirement to plead to the charge or the effect of a plea; or
(c)unable to understand the purpose of a trial; or
(d)unable to understand or exercise the right to challenge jurors; or
(e)unable to follow the course of the trial; or
(f)unable to understand the substantial effect of evidence presented by the prosecution in the trial; or
(g)unable to properly defend the charge.
The term 'mental impairment' is defined in s 8 to mean intellectual disability, mental illness, brain damage or senility.
Section 19 of the Act sets out the procedure for proceedings in the Supreme Court and the District Court to determine fitness to be tried. Where a judge decides that an accused is not mentally fit to stand trial it is then necessary to consider whether the accused may become fit within six months. If satisfied that the accused will not become mentally fit within six months, the judge must make an order quashing the indictment or, if there is no indictment, dismissing the charge and quashing the committal without deciding the guilt of the accused and either releasing the accused or making a custody order: s 19(1) and (4) of the Act.
A custody order must not be made unless the alleged offence is punishable by imprisonment and the judge is satisfied that such an order is appropriate having regard to the considerations referred to in s 19(5). Those considerations are:
(a)the strength of the evidence against the accused;
(b)the nature of the alleged offence and alleged circumstances of its commission;
(c)the accused's character, antecedents, age, health and mental condition; and
(d)the public interest.
If a custody order is made, the accused person must be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Mentally Impaired Accused Review Board established under Pt 6 of the Act. Any such detention continues until the accused is released by order of the Governor: s 24(1) of the Act.
A mentally impaired accused person who is subject to a custody order cannot be detained in an authorised hospital unless the accused has a mental illness that is capable of being treated: s 24(2) of the Act. Section 24(3) of the Act also provides that a mentally impaired accused person should only be detained in an authorised hospital if the Board is satisfied that the accused has a mental illness requiring treatment, that because of the mental illness there is a significant risk to the health or safety of the accused or another person, the accused does not have the capacity to consent to treatment and treatment can only be provided satisfactorily in an authorised hospital.
Within five working days of a custody order being made the Board must review the case of the accused and determine the place where the accused is to be detained. Until the Board determines the place where the accused is to be detailed the accused is to be detained either in an authorised hospital or a prison or detention centre: s 25 of the Act.
A mentally impaired accused person cannot be detained in a detention centre unless the accused is under the age of 18: s 24(5) of the Act.
The only options available under s 19(4) of the Act are unconditional release or a custody order. The court is not empowered to make an order conditionally releasing an accused person with, for example, a condition that the person reside at some particular location and be subject to specified treatment. This deficiency in the Act has been the subject of comment in other cases. However, it is not a material deficiency in the circumstances of this case because, as will become apparent, for the foreseeable future there is no viable option for Mr Chokolich other than for him to be detained in a secure mental health hospital.
The questions to be decided in this case are as follows:
1.is the accused presently fit to be tried?;
2.will he become mentally fit to stand to trial within six months?; and
3.is it appropriate to make a custody order?

Fitness to be tried

At the hearing I received the following documents in evidence:
1.A report of Dr Elizabeth Tate, a consultant forensic psychiatrist, dated 24 May 2018 (exhibit P1).
2.The prosecution brief (exhibit P2).
3.A report by Dr Victoria Pascu, a consultant forensic psychiatrist, dated 5 May 2017 (exhibit D1).
4.A report by Dr Mark Hall, a consultant forensic psychiatrist, dated 16 July 2018 (exhibit D2).
These documents were tendered by consent. The expertise of the psychiatrists and the content of their reports was not disputed. No witnesses were required to give oral evidence.

Psychiatric history

I have relied on the report of Dr Tate as the source of information regarding the relevant medical history of the accused.
The accused has a long history of mental illness. He was first diagnosed with schizophrenia in 1972 when aged 17. He was treated as an inpatient at a mental health hospital for three months. According to his sister, his mental health deteriorated progressively over the following years until he could no longer work and required constant support from his mother. His family noted a further deterioration after the death of the accused's father in 2003.
The accused has had a number of admissions to mental health hospitals during his life. For present purposes it is only necessary to refer in detail to his history from 2012 onwards. Medical notes from admissions from that time onward record persistent psychotic symptoms including bizarre delusions about being 3000 years old and his family being aliens. He also had memory and cognitive difficulties and this would lead to him leaving cigarettes burning, forgetting to take his medication and being found wandering the streets at night. Due to difficulty to adhering to medication regimes the accused was treated during this period with long-acting injectable antipsychotic medication.
Between 10 June and 17 August 2012 the accused was admitted to the psychiatric unit at Sir Charles Gairdner Hospital for a trial of clozapine. Clozapine is an antipsychotic medication reserved for individuals whose schizophrenia has not responded to conventional treatment. This occurred because his community mental health team were concerned at the apparent increase in his paranoia, delusions and associated distress. At this time he was expressing paranoid delusions that he was being poisoned by his mother and that neighbours were putting chemicals under his door. Unfortunately the trial of clozapine was unsuccessful because after two weeks the accused developed serious complications. He was then recommenced on injectable antipsychotic medication and discharged back to his home.
A week later the accused was admitted to Graylands hospital on 25 August 2012. He was brought to hospital by a member of his family due to concerns that he was confused and had left a cigarette burning on the carpet. These concerns were heightened by the fact that the accused's mother had recently been hospitalised and was therefore unable to care for him as usual. On admission the accused reported that people were trying to kill him and that his mother was an imposter. He continued to express many other longstanding delusional beliefs. High doses of medication were required to stabilise his mental state. An attempt to release the accused on leave from Graylands was unsuccessful as he was reported to be confused and wandering in the street at night. He was eventually discharged on 27 November 2012 with an increased community care package.
Between 18 January and 31 January 2013 the accused was again admitted to Graylands hospital due to a deterioration in his mental state. His family reported concerns that he was more anxious and disorganised and appeared more distressed by his delusional beliefs. He was observed to be anxious and agitated with a prominent tremor. He reported hearing distressing voices. Additional sedative medication was required to manage his distress but no other significant changes were made to his treatment. He was discharged to his home after two weeks.
The accused was admitted again to Graylands hospital on 19 June 2013 due to concern regarding an exacerbation of his psychotic symptoms. He presented as more paranoid and irritable with distressing delusional beliefs about being butchered by his family. At the hospital he continued to express the same longstanding bizarre delusions and was isolated and lacked motivation to participate in activities. Trial leave again failed due to the accused forgetting to take his medication and not coping in his unit. Supported accommodation was recommended but the accused declined. He was referred to slow stream inpatient rehabilitation, however in the meantime he went on extended home leave which went well. After discussion with his mother it was decided to discharge him home for a last trial of community management. He was allocated a legal guardian at this time.
The accused's last admission to hospital prior to the alleged offence was in 2015. He was admitted to Graylands hospital between 2 October and 23 October 2015 as a voluntary patient after concerns were raised by the ophthalmology clinic at Sir Charles Gairdner hospital about his paranoid delusions regarding his eye condition. He had reported that his eye problem was due to his female neighbour coming in to his home at night and poking him in the eye. He made other similar allegations regarding the neighbour and his mother. His deterioration at this time was believed to have occurred due to a reduction in the dose of his antipsychotic medication in preparation for switching to an alternative medicine. He was reported as making a gradual improvement on the new medication. He was discharged back to his home.
At the time of the alleged offence the accused was an active patient with Mirrabooka Community Mental Health Service. He was being visited regularly and was on a long-acting injectable antipsychotic medication. According to notes from his community team and reports from his family, his mental state was stable in the weeks prior to the alleged offence.
Following the alleged offence the accused was arrested and appeared in the Magistrates Court on 5 October 2016. He was placed on a hospital order and referred to the Frankland Centre. On admission he presented as confused and psychotic with slowed movements and speech, blunted affect and loosening of associations. He appeared to be responding to unseen stimuli and was disorientated as to time, stating that the year was 1971. He has remained at Frankland since that time. On various occasions he has described to psychiatrists the reasons why he killed his mother. These reasons continued to reference delusional beliefs.
On 23 October 2016 the accused became acutely agitated and paranoid. He expressed paranoid beliefs regarding other patients and requested that his door be locked. He attacked another patient and attempted to attack staff, requiring restraint and seclusion. The following night he again became highly agitated and distressed stating that voices were telling him to inflict physical harm on himself. He continued to be highly disturbed with disinhibited aggressive and self‑injurious behaviours over the next few days. There continued to be attempts to assault staff and other patients requiring restraints and high doses of sedative medication. As a result, the accused was unable to attend his mother's funeral on 27 October 2016.
Due to the ongoing severity of the accused's symptoms, a higher nurse-to-patient ratio was required and he was referred for emergency electroconvulsive therapy. Before this could occur he deteriorated further and was transferred to Sir Charles Gairdner hospital on 29 October 2016. He was there diagnosed with agitated catatonia (a serious neurological condition characterised by abnormal movement and often associated with schizophrenia) and was so critically ill as to require treatment in the intensive care unit. He was placed in an induced coma for several days. Fractures to both wrists were diagnosed and it was presumed that this was caused by repeated punching of walls at the Frankland Centre. He underwent a course of emergency electroconvulsive therapy under sedation due to the severe and life‑threatening nature of his illness and the associated significant risks to himself and others. After this treatment he gradually improved and returned to the Frankland Centre on 23 November 2016.
Over the following weeks the accused spent most of his time in his bedroom. He was reported to be perplexed about his mother's death. He told a psychiatric registrar on 9 December 2016 that he had no recollection of the events and did not believe that he could have killed his mother.
On 30 December 2016 the accused was reviewed by his treating team. It was noted at this time that he had bizarre delusions about aliens but otherwise was described as settled and was considered to be 'likely at baseline'. Since that time the records indicate that the accused's illness has continued to fluctuate but that overall he has remained generally settled with no significant risk behaviours.

In 2017 two of the accused's treating psychiatrists formed the view that the accused had treatment-resistant schizophrenia associated with severe neurocognitive deficits.
More recently, on 23 March 2018, the accused's treating psychiatrist has stated that he has shown a gradual settling with improvement largely plateaued. He continues to be isolated and spends long periods lying on his bed or on a couch in a quiet room. He engages with staff on an as needs basis and rarely interacts with other patients. He is only able to tolerate relatively short interviews with the medical team. In these interactions he frequently reports delusional beliefs regarding being from a different reality, having been moved to this earth 27 years ago and that all other people are alien beings unlike himself. He has also had several periods of worsening paranoia where he believes that his room is being entered and that he is being sexually assaulted by another person. He has described occasional visual hallucinations which he finds distressing.

Current psychiatric state - Fitness to be tried

The most recent reports are those of Dr Tate and Dr Hall. Both psychiatrists referred to the accused's psychiatric history and conducted a mental state examination.

Dr Elizabeth Tate

Dr Tate states that when she saw the accused he appeared visibly anxious and his arms shook continuously. He spoke in a mumble and at times with an incoherent flow of speech. He was unable to provide a coherent account of the circumstances surrounding his admission, his progress in hospital or his background. He was profoundly thought disordered at times with marked abnormality in both the form and content of his speech. His affect was restricted. He denied any thoughts of suicide or self-harm. Whilst the accused did not appear to be having auditory or visual hallucinations at the time of interview, he did report seeing frequent 'visions' of a violent nature. He expressed numerous bizarre delusions that were consistent with those that he has expressed in the past to other psychiatrists. Whilst he knew where he was, he was unable to tell Dr Tate the date or year or how long he had been in hospital. His working memory and processing speed appeared to be impaired. He had a poor understanding of his own illness and the treatment for it.
In Dr Tate's opinion, there is clear evidence that the accused has a major mental illness, namely paranoid schizophrenia. His illness is treatment-resistant, meaning that he continues to present with psychotic symptoms despite adequate doses of antipsychotic medication. His mental illness has run a chronic course throughout his adult life with periods of exacerbation occurring without obvious causes. He has expressed persecutory delusions about his family and neighbours associated with increased agitation and distress. However, there is no known history of violence prior to the alleged offence.
Dr Tate states that despite high doses of antipsychotic medication and a course of electroconvulsive therapy the accused continues to express symptoms of psychosis including bizarre delusional beliefs and confused thinking. Dr Tate notes that brain imaging has revealed that the accused suffered a stroke at some unknown time. He also had a further episode in March 2018 which may have been a mini‑stroke, although no definitive cause was found at the time. Dr Tate suggests that the accused's lack of motivation, social isolation and cognitive deficits are likely to be due to a combination of his mental illness and brain damage secondary to the stroke. She states that the accused is 'extremely disabled by his condition and incapable of undertaking most activities of daily life independently'. Although the degree of cognitive impairment cannot be accurately quantified, Dr Tate suggests that the accused is likely to have mild to moderate intellectual disability secondary to his mental illness and stroke disease. Based on her own clinical assessment and other information available, Dr Tate is of the opinion that the accused has achieved the optimum degree of recovery and is unlikely to make any further clinically significant improvement in the future.
In regard to the accused's fitness to plead or stand trial Dr Tate considered the criteria set out in s 9 of the Act. In regard to the ability to understand the charge, the accused was able to name and describe the charge against him but was unable to demonstrate an appreciation of the seriousness of that charge or his legal situation. In regard to the ability to understand the requirement to plead to the charge and the effect of that plea, the accused repeatedly stated that he was not guilty because an imposter had used his body. He was unable to consider and weigh up the relevant information in a rational manner and could not demonstrate an ability to understand the effect of a plea. In regard to the ability to understand the purpose of the trial, the accused did not appear to understand that a not guilty plea would result in a trial nor could he describe the purpose of a trial. In regard to the ability to understand or exercise the right to challenge jurors, the accused showed no understanding of the role of the jurors or his right to challenge jurors. In regard to the ability to follow the course of a trial, the accused demonstrated significant problems with concentration, memory, comprehension and processing of information. In Dr Tate's view the accused's longstanding cognitive deficits would severely impair his ability to follow the course of complex and potentially lengthy trial and there are no measures that could be put in place to adequately mitigate this difficulty. In regard to the ability to understand the effect of evidence, the accused was unable to understand the substantial effect of evidence or its role in the trial. In regard to the ability to properly defend the charge Dr Tate was of the view that due to the nature and severity of his enduring mental illness and cognitive impairment the accused is not able to defend a charge even with support from a legal representative. In these circumstances Dr Tate concluded that the accused has a mental impairment, namely a mental illness and brain damage, which render him unfit to plead or stand trial based on the criteria in s 9 of the Act.

Dr Mark Hall

Dr Hall conducted a mental state examination on 6 July 2018. During the course of that interview the accused expressed bizarre delusional beliefs that are similar to those that had been described on earlier occasions. Dr Hall also noted that the accused had a tremor and that his mood was dysphoric. His affect (the external expression of emotion) was markedly restricted and his thoughts were not understandably connected or able to be expressed coherently. Dr Hall stated that the majority of the interview was characterised by nonsensical rambling or responses that contained unrelated delusional statements with bizarre persecutory and grandiose themes. He had no insight into his mental illness or the need for treatment. Cognitive assessment indicated impairment of verbal fluency, abstract reasoning and working memory.
Dr Hall stated that the accused has an established diagnosis of chronic paranoid schizophrenia of some 30 years duration. That illness is characterised by bizarre delusions, hallucinations, disorganisation of thought and marked impairment in social and occupational functioning.
Dr Hall considered whether the accused was fit to stand trial having regard to the criteria in s 9 of the Act. As to the ability to understand the nature of the charge Dr Hall was satisfied that the accused understood the nature of the charge and in particular that he was charged with murder in relation to the stabbing death of his mother. As regard the ability to understand the requirement to plead to the charge and the effect of the plea, the accused appeared to understand the requirement to plead and said that he intended to plead not guilty because it was not him that had committed the offence. Again, this was based on his delusional reasoning. An attempt to explore his understanding of a plea of not guilty on account of unsoundness of mind, produced a response that the accused did not believe that he had a mental illness. In Dr Hall's view whilst the accused understood the requirement to plead to the charge, he had a poor understanding of the effect of the plea. As regard the ability to understand the purpose of a trial, the accused said that he understood that the purpose was to find out if a person is guilty of the alleged offence. He was able to identify the parties to the trial and their respective roles. In regard to the ability to understand or exercise the right to challenge jurors, the accused showed some understanding of the role of a juror but Dr Hall was not satisfied that he adequately understood his right to challenge jurors or would be able to exercise that right. As regard the ability to follow the course of a trial, Dr Hall was of the view that the accused's mild impairments of cognitive function would diminish but not remove his ability to follow the course of a trial. As regards the ability to understand the effect of evidence, the accused had a partial understanding of the effect of evidence but again spoke of this in the context of his own delusional beliefs. As regard the ability to properly defend the charge, the accused continued to refer to someone being in his body and that the whole incident had been caused by aliens. Dr Hall noted that the accused is consumed by his bizarre delusional beliefs and interprets the alleged offence in the same terms. In his opinion the accused would be unable to instruct a legal representative. It is also likely that the accused's answers to questions in the course of giving oral evidence in a trial would be incoherent and inextricable from his delusional thoughts.
Dr Hall concludes that the accused is seriously unwell with chronic treatment-resistant paranoid schizophrenia. He has gross disorganisation of thought as well as preoccupation with bizarre paranoid delusions. He does not have the ability to properly defend the charge or exercise his right to challenge jurors. He has a poor understanding of the effect of a plea and of the substantial effect of evidence in the trial. In Dr Hall's opinion the accused is not fit to stand trial. He is also of the view that because the illness is chronic and the symptoms severe the accused will not become fit to stand trial in the future.

Is the accused fit to be tried?

On the basis of this uncontested evidence, I am satisfied on the balance of probabilities that the accused suffers from a mental impairment and does not possess a number of the abilities referred to in s 9 of the Act. In particular he does not have the ability to properly defend the charge or exercise his right to challenge jurors. It is unequivocally clear that the accused is not mentally fit to stand to trial and will not become mentally fit to stand trial within six months. Indeed, it is plain on the evidence that there is no prospect of the accused's condition improving.

Is a custody order appropriate?

The charge against the accused is that he murdered his mother contrary to s 279 of the Criminal Code (WA). The maximum penalty for this offence is life imprisonment. Accordingly, it is open to make a custody order, but whether it is appropriate to do so depends upon a consideration of the factors referred to in s 19(5) of the Act.

(a) Strength of the evidence

The prosecution brief contains a statement from Mr Collin Carter, a neighbour of the deceased. On the early evening of 4 October 2016 he was walking to the carpark of the units where he, the deceased and the accused lived when he saw the deceased sitting on the grass at the front of her unit. The accused was standing on her right hand side. She was sitting up and holding her neck. Mr Carter could see blood on the deceased's neck and she was waving at him as if warning him not to come closer. The accused motioned Mr Carter to come over and then asked 'where's the knife'. Although Mr Carter did not see a knife he was sufficiently concerned to run back to his unit and call the police. When police arrived Mr Carter went outside. The deceased was laying on her back in the same spot where he had earlier seen her, although she was now lifeless and not moving.
Mr Desmond Moir also lives in the same set of units. At about 6.00 pm on 4 October 2016 Mr Moir met the accused as he was walking along a path at the units. The accused appeared to be upset and was mumbling incoherently. A short time later Mr Moir saw the accused holding the deceased around her neck with his right arm. As he was moving her she was yelling but did not seem to struggle. He pulled her about 4 to 5 m away from the door and sat her down on the grass. The accused then picked up a knife from the pathway and walked back towards his mother. Mr Moir's view was obstructed at this time. When he next saw the deceased she was laying on the ground and there was blood on her top. Mr Moir then called the police on his mobile telephone. The accused approached and appeared to be agitated. He sat down with Mr Moir and a number of other men and remained there until police arrived.
Mr Ian Standen also lives at the units in Balga. On the evening of 4 October 2016 he was having a drink with a friend at the front of one of the units. He saw the accused and the deceased. The accused was rambling in a way that was unusual. He seemed anxious. His mother told him not to worry and they walked away together. About 20 minutes later Mr Standen heard raised voices from the deceased's unit. He then saw the accused pulling his mother through the front security door, his left arm was around her neck and he had a large knife in his other hand. He pulled his mother onto the grass and threw her down onto the ground. He knelt down on the ground with the knife in both hands. He leant over and put all of his weight onto the knife and pushed it into the deceased's chest. Mr Standen was able to see these events quite well as the lighting was good and he was only 10 m away. He immediately got up and rang triple zero. When he came back he saw the accused hacking at the deceased's throat with the knife. Mr Standen then rang triple zero a second time. Mr Standen said this aggressive conduct was unlike the accused, who was usually very calm.
Dr Purnasankar Bhowmik is an emergency doctor at the Joondalup Health Campus. The accused was taken to the Joondalup hospital following his arrest and was seen by Dr Bhowmik. In conducting a medical assessment Dr Bhowmik asked the accused why he was at the hospital. The accused responded by saying 'I killed my mother, I don't know why I did it but I did'. He also said 'she was killing half of the place, that's why I did it'. Dr Bhowmik made a note of the conversation and provided it to the police.
Mr John Buss is also a resident at the block of units in Balga. He was the friend with whom Mr Standen had a drink on the evening of 4 October 2016. He saw the accused who he describes as speaking 'mumbo jumbo'. He then walked back to his own unit returning a few minutes later with his mother. Mr Buss said that the accused was still talking in a nonsensical way. Mr Buss told the accused to take his mother home and he appeared to listen and they walked off. Mr Buss heard others referring to what occurred a short time later but he has mobility problems and his restricted movement meant that he could not get up to see what had occurred.
Ms Nicki Foster is a paramedic who attended at the scene on the evening of 4 October 2016. After attending to the deceased and confirming that she was dead, Ms Foster and her colleague approached a police car where the accused was sitting. He was pale and sweating and had a graze to the knee. He appeared vacant and was constantly muttering. Ms Foster and her colleague conducted a number of assessments on the accused. He was shaking rocking and talking at this time, while the majority of what he said did not make sense. Ms Foster heard him repeatedly say 'I killed her, I fucking killed her'.
Mr Travis Kendrick is also a paramedic and was Ms Foster's colleague who attended the scene on the evening of 4 October 2016. He refers to attending to the deceased and the accused. He says that the accused was displaying manic behaviour and was incoherent. He does not refer to any specific admissions made by the accused.
Edward Anderson and Godfrey Harmer are police officers who attended at the scene on the evening of 4 October 2016. They refer to inquiries that they made at that time and to their observations of the deceased and of the accused. They do not refer to any specific admissions made by the accused.
The prosecution brief also contains a report by a forensic pathologist and toxicology results in respect of both the deceased and the accused. The pathologist's reports confirms that the cause of death of the deceased was multiple sharp force injuries. The toxicology result in respect of the accused relevantly shows that neither illicit drugs nor alcohol were detected in his blood.
In my view the available evidence establishes a strong case that the accused stabbed his mother and thereby caused her death. The nature of the injuries and the statements made by the accused after the event strongly support an inference that the accused intended to kill her. What precipitated this violent behaviour, if anything, is unknown. There is nothing to suggest that the accused had behaved in a violent way previously. I do note, however, that according to a number of witnesses the accused was in a more agitated state than usual and made statements that appeared consistent with his delusional beliefs. It seems reasonable to infer that the accused was suffering a particularly acute psychotic episode at this time.

(b) The nature and circumstances of the alleged offence

As I have noted, the offence with which the accused is charged is murder. The circumstances of the commission of the alleged offence have been described above. Clearly it is a very serious offence. The attack upon the deceased appears to have been sudden and unprovoked. She was an elderly, vulnerable woman with apparently little ability to defend herself. She received multiple very serious injuries.

(c) Personal circumstances

There are some differences between the reports in regard to the details of the accused's personal history. The differences are not critical. I have relied on the report of Dr Hall in this regard.
The accused is now aged 62 years old. He was born in Australia and is the younger of two siblings. He grew up on his family's market garden. His school performance was below average and was also complicated by truancy. He stopped attending school at the age of 15.
The accused commenced an apprenticeship as a mechanic but did not complete it. He has also done some work at a limestone quarry driving a bulldozer and also worked as a truck driver. It would appear that he has been unable to work for many years due to his chronic mental illness.
The accused has never married and has no children. He lived with his parents until his father's death in 2003 and thereafter continued to live with his mother in the family home until she sold it. At that time he moved to a rented flat in Balga. His mother moved to the same set of units some time later. Despite her age and her own health problems, she took responsibility for caring for the accused. It would seem that whilst there was some tension between them and some grievances harboured from childhood, the accused and his mother generally got along well.
The accused has no prior criminal history. Despite his longstanding mental illness, which has largely been treatment-resistant, he appears to have avoided any contact with law enforcement officers. He maintains contact with his sister and her children, who have visited him in hospital.

The most dominant, overwhelming element of the accused's personal life has been his mental illness. That has described in detail earlier in these reasons.

(d) The public interest

There is a public interest in ensuring that the accused will not be a risk to the safety of others. Whilst he does not have an extensive history of violence, the violence exhibited on this occasion was extreme in nature. That violent behaviour was caused by his mental illness and, in particular, by his intense and pervasive delusional beliefs. As those delusional beliefs have persisted notwithstanding treatment there must be a risk of future violence.
The medical evidence is clear that there is little or no prospect of the accused making any improvement in the future. In the past, despite his chronic illness, an option for the accused has been to be released into the community subject to treatment, but this option is no longer viable. There are several reasons for this. Firstly, past concerns as to the accused's ability to self‑care and manage his medication were alleviated by the proximity of his mother. Secondly, all the indications are that the accused's illness is treatment-resistant and that his psychotic episodes have become worse over time. Thirdly, the sudden and unpredictable nature of this episode of violence must mean that it would be difficult to predict or guard against future such episodes.
There is also a public interest in ensuring that a person who is not mentally competent is humanely treated. If a custody order is made, the likelihood is that the accused will continue to be kept in the Frankland Centre at Graylands hospital. Since the time of the alleged offence his condition has, in some respects, deteriorated. Whilst recently he appears to have become more passive and accepting, he is also isolated and socially disconnected. It is clear from the reports that he is receiving very carefully considered medical care, though the options are somewhat limited. Certainly for the foreseeable future the only viable and humane option is for him to remain in a secure mental hospital.

Conclusion

At the hearing of this matter counsel for the accused submitted that the accused was not fit to be tried and that the only reasonably available option was a custody order. Prosecution counsel also submitted that those orders should be made. Having considered the available evidence I was satisfied that those orders were appropriate and accordingly on 20 July 2018 I made the following orders:
1.That the indictment be quashed.
2.A custody order in respect of the accused is made pursuant to s 19(4) of the Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
ASSOCIATE TO THE HONOURABLE JUSTICE HALL
25 JULY 2018