The State of Western Australia v Collard
[2024] WADC 7
•16 FEBRUARY 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: GERALDTON
CITATION: THE STATE OF WESTERN AUSTRALIA -v- COLLARD [2024] WADC 7
CORAM: BOWDEN DCJ
HEARD: 13 FEBRUARY 2024
DELIVERED : 16 FEBRUARY 2024
FILE NO/S: IND GER 99 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
DAVID COLLARD
Catchwords:
Criminal law - Criminal procedure - Fitness to stand trial
Legislation:
Criminal Code (WA)
Criminal Law (Mental Impairment) Act 2023 (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Result:
| Unfit to plead - indictment quashed - release order made - turns on its own facts |
Representation:
Counsel:
| The State of Western Australia | : | Mr B E F Tooker |
| Accused | : | Ms E Svanberg |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Eva Svanberg Barrister And Solicitor |
Case(s) referred to in decision(s):
Domican v The Queen [1992] HCA 13
Eastman v The Queen [2000] HCA 29
Ngatayi v The Queen (1980) 147 CLR 1
R v Dunne [2001] WASC 263
R v Holmes [2023] 1 Cr App R 25
R v Lindley [2003] WADC 41
R v Presser [1958] VR 45
R v Robson [2001] WADC 133
R v T (2000) 109 A Crim R 559
The State of Western Australia v Sanders [2012] WASC 409
The State of Western Australia v Stimpson [No 2] [2020] WASC 19
The State of Western Australia v SU [No 2] [2017] WADC 20
The State of Western Australia v T‑S [2019] WADC 40
BOWDEN DCJ:
This hearing is to determine whether Mr Collard is fit to plead to two counts on indictment GER 99 of 2023.
Count 1 alleges that on 3 January 2023 he indecently dealt with JFL, a child under 13 years by grabbing her arm and pulling her in the direction he wanted her to go.
Count 2 alleges that on 3 January 2023 he indecently dealt with KR a child of or over the age of 13 and under the age of 16 by grabbing her shirt and pulling her in the direction he wanted her to go.
A question has arisen as to whether Mr Collard is mentally fit to stand trial and this issue must, somewhat unusually be dealt with under two Acts being the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the 1996 Act) and the Criminal Law (Mental Impairment) Act 2023 (WA) (the 2023 Act).
The 1996 Act has not been repealed but Part 1, and only that part of the 2023 Act has been proclaimed (13 April 2023). Accordingly, the applicable law is found in the 1996 Act and Part 1 of the 2023 Act, relevantly s 7, s 8 and s 9.
Brief summary of the State's allegation
Simply put the State say that two young girls JFL and KR were at a service station pouring themselves a frozen drink when a man poured himself a drink but asked the girls to pay for it as he said he did not have any money. The girls agreed and paid for all three drinks.
The girls went outside and gave the man the drink and he began grabbing JFL's shoulder and hand and pulling her in the direction of his house. As he did so he asked the girls to come back to his house saying, 'come to mine, but before you come, I've got to take pills before I do naughty stuff to you'. He also grabbed KR's shirt and tried to pull her in the direction of his house saying he would 'do naughty stuff before he took his tablets'.
The girls returned inside the service station and reported what had occurred.
Sometime later the accused was arrested and charged.
The law
The question of whether Mr Collard is mentally fit to stand trial may be raised by the prosecutor, defence or presiding judge in the District Court at any time before or after an indictment is presented (s 11(1), s 11(2) of the 1996 Act). In this case the question of fitness to stand trial was raised and a psychiatric report was prepared by Dr Rooprai dated 13 October 2023.
Under the 1996 Act an accused is presumed to be mentally fit to stand trial until the contrary is proven (s 10(1)). The question of whether the accused is not mentally fit to stand trial is to be determined on the balance of probabilities. A judge can enquire into the question and inform himself in any way he thinks fit (s 12(1)).
Pursuant to s 9 of the 1996 Act, a person is mentally unfit to stand trial if, because of mental impairment, he is unable to:
(a)understand the nature of the charge;
(b)understand the requirement to plea to the charge or the effect of a plea;
(c)understand the purpose of a trial;
(d)understand or exercise a right to challenge jurors;
(e)follow the course of the trial;
(f)understand the substantial effect of evidence presented by the prosecution in the trial; or
(g)properly defend the charge.
Mental impairment is defined by s 9 of the 2023 Act to mean any of, or a combination of the following:
(a)an intellectual disability;
(b)a mental illness as defined in The Criminal Code s 1(1) (WA);
(c)an acquired brain injury; and
(d)dementia.
Mental illness is defined in TheCriminal Code s 1(1) to mean an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli. This is the same definition as applied under s 3 of the 1996 Act.
Section 9 of the 1996 Act therefore involves a twofold test:
Firstly, the court must decide whether the accused suffers any mental impairment.
Secondly, if there is a mental impairment, does that result in Mr Collard being unable to meet any one of the criteria specified in s 9(a) - s 9(g).
If so, Mr Collard would be mentally unfit to stand trial. If Mr Collard is mentally unfit to stand trial he may be subject to a custodial order even though he has not been convicted of any offence, if the criterion in s 19(5) is satisfied (R v Robson [2001] WADC 133), or he may be released under s 19(4).
Section 7(2) of the 2023 Act provides the court must have regard to the following principles when performing a function under the 2023 Act:
(a)that persons with mental impairment should be subject to the least possible restriction on their freedom consistent with the protection of the community;
(b)that persons with mental impairment in the justice system should have access to advocacy services;
(c)that persons with mental impairment in the justice system should be provided with the best possible treatment, care and support;
(d)that persons with mental impairment in the justice system should be dealt with in a manner that is culturally appropriate;
(e)that persons with mental impairment in the justice system should not be subject to outcomes under this Act that restrict their freedom more severely than if they had been convicted of the offence that they have been found to have, or are alleged to have committed;
(f), (g), (h), (i) and (j) are not applicable as they relate to children;
(k)that victims of offences committed by persons with mental impairment should have the opportunity to be acknowledged and heard; and
(l)that the role of carers and families in the treatment, care and support of persons with mental impairment should be recognised.
As s 8 of the 2023 Act makes clear, at all times, the paramount consideration is the protection of the community. This was always the position under the 1996 Act.
The hearing
No witnesses were called at the hearing.
The evidence consists of the prosecution brief and the psychiatric report of Dr Rooprai of 13 October 2023, which was admitted by consent.
The first issue to address is whether Mr Collard suffers from a mental impairment.
Does Mr Collard suffer from a mental impairment?
Dr Rooprai's independent psychiatric report reveals that Mr Collard had previously been admitted to Graylands Hospital in October 2011, June 2013, July 2017 and November 2018, the latter admission being for 34 days, and on discharge was diagnosed with schizophrenia.
Mr Collard has been detained under the provisions of the Mental Health Act 2014 (WA) since 18 August 2023. Dr Rooprai records that the earliest reported diagnosis of schizophrenia was in October 2007 although there are some suggestions the diagnosis was in fact made in 1979.
Dr Rooprai says that Mr Collard has an established diagnosis of chronic paranoid schizophrenia and continues to present with residual negative symptoms of schizophrenia which affect his cognition and functioning.
I am satisfied on the basis of Dr Rooprai's report that Mr Collard suffers from chronic paranoid schizophrenia and continues to suffer from negative symptoms of schizophrenia, affecting his cognition and functioning.
Accordingly, I am satisfied that Mr Collard suffers a mental impairment, being a mental illness within the meaning of the 2023 Act (and the 1996 Act).
Does Mr Collard meet any one of the criteria set out in s 9(a) - s 9(g) of the 1996 Act?
The mere existence of a mental impairment does not of itself prevent a person from being brought to trial: Eastman v The Queen [2000] HCA 29.
Mr Collard is only unfit for trial if the mental impairment he suffers from results in one of the s 9 criteria of the 1996 Act being met.
It is not necessary for Mr Collard to have a complete understanding of the course of the trial or to understand the evidence presented by the prosecution in detail. Nor does he have to understand the law and its application to the facts of the case.
The test is not to be applied as if Mr Collard is unrepresented. It is the ability of Mr Collard to properly defend the charge assisted by counsel which is the relevant question not whether alone and unaided he is able to properly defend the charge: Ngatayi v The Queen (1980) 147 CLR 1.
The test is not a demanding one and has been expressed (R v Dunne[2001] WASC 263 [10]; R v Presser[1958] VR 45, 48) as to whether Mr Collard has:
… sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of facts known to the court and to his counsel, if any.
If Mr Collard realises in general terms what it is to be put on trial and can make sense of the evidence against him, he can take a sufficient part in proceedings for a trial to proceed: R v T (2000) 109 A Crim R 559, 565; R v Lindley [2003] WADC 41.
The District Court has experience dealing with witnesses and accused persons who suffer disadvantages due to age, low intelligence or for other reasons are vulnerable, and has processes in place to ensure that the inherent disadvantage suffered by intellectually impaired witnesses and accused is reduced: The State of Western Australia v T‑S [2019] WADC 40. The court can take breaks to ensure an accused does not become unacceptably overwhelmed and the trial judge can control the questions put to witnesses and the accused and is in a position to ensure that questions are simple and not confusing.
The issue of whether Mr Collard is unfit to plead must be considered in circumstances where he would be represented at the trial and that the court processes can be adjusted to assist his disadvantaged position.
Is Mr Collard unable to understand the nature of the charge pursuant to s 9(a) of the 1996 Act?
Dr Rooprai reported that Mr Collard vaguely understood that the charges involved two young girls but was unaware of the true nature of the charges.
However, Dr Rooprai did not address the issue of whether Mr Collard would be able to understand the true nature of the charge if aided by a lawyer.
Accordingly, I am not satisfied that, aided by competent legal representation, Mr Collard would be unable to understand the true nature of the charge.
Is Mr Collard unable to understand the requirement to plead to the charge or the effect of a plea pursuant to s 9(b) of the 1996 Act?
Dr Rooprai said that Mr Collard could not explain the difference between pleading guilty and pleading not guilty. However, Dr Rooprai did not address the issue of whether Mr Collard would be able to understand the requirement to plead to the charge if aided by a lawyer.
Accordingly, I am not satisfied that, aided by competent legal representation, Mr Collard would be unable to understand the requirement to plead to the charges or the effect of the plea.
Is Mr Collard unable to understand the purpose of a trial pursuant to s 9(c) of the 1996 Act?
Dr Rooprai said that Mr Collard had no understanding of the legal proceedings he would face and got confused about the roles of various professionals involved in the court proceedings.
The question was not addressed from the position of Mr Collard being legally represented and there is nothing in Dr Rooprai's report that indicates that with the aid of legal representation, Mr Collard would not have understood the purpose of the trial was to determine whether he was guilty or not guilty of the offence.
I am not satisfied that aided by competent legal representation Mr Collard would not be able to understand the purpose of the trial.
Is Mr Collard able to understand or exercise a right to challenge jurors pursuant to s 9(d) of the 1996 Act?
Dr Rooprai said that Mr Collard did not know his right to challenge a juror and even when this was explained, Mr Collard was unable to retain this information.
Whilst I accept that the report did not deal with this issue as if Mr Collard were legally represented, I accept that Dr Rooprai explained the right to challenge and even that having been explained, Mr Collard was not able to retain that information.
I am satisfied, based on Dr Rooprai's opinion that Mr Collard is unable to exercise his right to challenge the jurors and is therefore unfit to stand trial.
Is Mr Collard unable to follow the course of the trial pursuant to s 9(e) of the 1996 Act?
Dr Rooprai reported that, given Mr Collard's current mental state, he did not believe he would be able to follow the course of the trial.
Dr Rooprai reported that at the time of interview it was difficult to establish a rapport with Mr Collard and no spontaneous engagement was noted. Mr Collard's speech was slurred, and it took Mr Collard a while to understand the questions asked of him. Mr Collard's speech was relevant but barely coherent and he answered in one or two words. His thought pattern was linear and logical, and he was not having any delusional beliefs.
Dr Rooprai said that Mr Collard had limited insight into his difficulties and was lacking capacity to consent to treatment.
Dr Rooprai considered Mr Collard's position as if he were unrepresented however in view of his conclusions that even though Mr Collard's mental state had stabilised, he was still experiencing the difficulties referred to above, I am satisfied that Mr Collard would be unable to follow the course of the trial, even if legally represented.
Is Mr Collard unable to understand the substantial effect of evidence presented by the prosecution in the trial pursuant to s 9(f) of the 1996 Act?
Dr Rooprai said that Mr Collard reported that he did not have a lawyer and had not seen the witness statements or other legal documents pertaining to this case.
Mr Collard does in fact have a lawyer.
I am not satisfied that legally represented he would be unable to understand the substantial effect of evidence presented by the prosecution in the trial.
Is Mr Collard unable to properly defend the charge pursuant to s 9(g) of the 1996 Act?
Dr Rooprai said that given Mr Collard's current mental state and lack of engagement with his legal team, he did not believe that Mr Collard would be able to properly defend the charge.
This conclusion was consistent with Mr Rooprai's mental state examination of Mr Collard where he overserved Mr Collard lacked spontaneous engagement and had difficulties establishing a rapport, his speech was slurred and barely coherent, he mixed up timeframes even of an autobiographical nature, answered in one or two words and had limited insight into his difficulties.
Based on Dr Rooprai's report, I am satisfied that Mr Collard would be unable to properly defend the charge.
Conclusions on s 9 of the 1996 Act
Based on Dr Rooprai's report, I am satisfied that Mr Collard would be unable to exercise his right to challenge the jurors or follow the course of the trial or to properly defend the charge and is therefore unfit to stand trial.
The consequences
I have found that Mr Collard is not mentally fit to stand trial. It is necessary to consider whether he may become fit within six months.
Will Mr Collard become mentally fit to stand trial within six months?
In Dr Rooprai's report of 13 October 2023 he specifically addresses the issue of whether Mr Collard will become mentally fit to stand trial within six months.
Dr Rooprai's conclusion was he did not anticipate any significant improvement in Mr Collard's ability to engage in the current manner in the next six months. Dr Rooprai noted that Mr Collard continued to present with residual negative symptoms of schizophrenia which affect his cognition and functioning and has an established diagnosis of chronic paranoid schizophrenia which was diagnosed certainly by 2007 and perhaps as long ago as 1979 and in the last 13 years has had him admitted to Graylands Hospital on four occasions, and was currently detained under the provisions of the Mental Health Act 2014, having been so detained since August 2023.
I am satisfied that Mr Collard will not become mentally fit within six months and accordingly I quash the indictment without deciding the guilt of Mr Collard. Having done that I must either release him or make a custody order pursuant to s 19(1) and s 19(4) of the 1996 Act.
Custody order or release?
The 1996 Act only permits the court to make a release order or a custody order. The Defence and State say the appropriate order is a release order.
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:
(a)the strength of the evidence against Mr Collard;
(b)the nature of the alleged offence and alleged circumstances of its commission;
(c)Mr Collard's character, antecedents, age, health, and medical condition; and
(d)the public interests: s 19(5).
In this case both the offences are punishable by imprisonment.
Custody order
If a custody order is made, within five days the Mentally Impaired Accused Review Board (the Review Board) established under the 1996 Act must review the case and determine the place where Mr Collard is to be detained. Until that decision is made Mr Collard is detained either in an authorised hospital, a prison or detention centre: s 25 of the 1996 Act.
If a custody order is made Mr Collard must be detained in an authorised hospital, a declared place, a detention centre or a prison as determined by the Review Board and is detained in one of those places until released by an order of the Governor.
A release order made by the Governor can be made unconditionally or on conditions including conditions relating to undergoing specific treatment, residing at a specified place and complying with lawful directions from a supervising officer: s 35(3) and s 35(4) of the 1996 Act.
A person detained subject to a custody order may be granted leave of absence by the Governor following a recommendation from the Review Board to the Minister for a period not exceeding 14 days at any one time, conditionally or unconditionally, as determined by the Review Board: s 27, s 28 of the 1996 Act.
Conditions imposed may include conditions relating to undergoing specific treatment, residing at a specified place and complying with lawful directions from a supervising officer: s 28(4) of the 1996 Act.
In order to be detained at a 'declared place' the Minister for Disability Services must consent and a 'Disability Services' member of the Review Board must be present at the Review Board when the decision to detain him at a 'declared place' is made: s 24(5A), s 24(5B) and s 24(5C) of the 1996 Act.
A mentally impaired accused person who is subject to a custody order cannot be detained in an authorised hospital unless he has a mental illness that is capable of being treated: s 24(2) of the 1996 Act.
A mentally impaired accused person who is subject to a custody order cannot be detained in a detention centre unless he is under 18 years of age.
Release
The only other option available other than a custody order that the law currently provides is to order that Mr Collard be unconditionally released.
Whilst under the 2023 Act, Part 5, provision for other orders can be made by a court in relation to an accused who has been found not fit to stand trial and found to have committed the offences, include a community supervision order, those provisions have not been assented to and accordingly, do not reflect the current law.
However, as stated, Part 1 of the 2023 Act has been assented to and is the current law and that requires the court to have regard to the objects and principles and paramount considerations referred to in s 7 and s 8 of the 2023 Act.
I turn now to consider the s 19(5) factors of the 1996 Act.
The strength of the evidence
JFL
JFL participated in a child witness interview on 27 February 2023.
She told the police that accompanied by KR (her cousin) she went to a service station and was pouring herself a drink when a man asked them to buy him a drink. They agreed and when they went outside to give him the drink he said 'do you's want to come to my house' to which she replied 'no thank you. We had better go home'.
The man asked where they lived and asked to come to their house, when she declined, he said 'well come to mine, but before you come to mine I've got to take pills before I do naughty stuff with you'. She said he was trying to hold her hand and trying to grab her cousin's hand. She said he was 'full on just like holding onto it, like trying to hold onto our shoulders and our neck but like hard'.
When asked what the man was doing with his hand she said he was grabbing her and her cousin's shoulder and grabbing their neck and hands, moving his hands along 'our shoulders like rubbing', repeating that he was grabbing their arms and holding onto their shoulders and necks.
KR
KR participated in a child witness interview on 27 January 2023 and said that she had gone with JFL to the service station where a man asked them to buy him a drink. When they did so and went outside to give him the drink he started 'touching us' and kept trying to 'shake our hand all the time'.
She said the man grabbed JFL by tightly grabbing her on the top of her shoulder, saying he was trying to shake 'their' hand all the time and pulling her and her friend 'like really pulling them to him'. She said he pulled her shirt once and also pulled JFL's shirt once. She said he was pulling them down the driveway and asked where they lived.
Birth certificates
The birth certificate of KR establishes that she was born on 30 November 2009 and the birth certificate of JFL establishes that she was born on 12 April 2010.
Ms Owen
Ms Owen was working at the service station on the night in question. She said a male person who she knew as Dave came to the shop. She described Dave as a regular customer who was really rude, and she did not have much time for him.
She said that on this occasion he purchased some cigarettes and a lighter and then went to the frozen drink machine and was talking to two young girls. She could not hear what was said.
The girls then came to her counter and Dave walked out of the shop. When the girls came to pay for three drinks she asked whether Dave had made them buy him a drink and they said that he had. She told the girls that they did not have to buy Dave a drink if they did not want to and asked the girls where he went. The girls replied that he had gone outside.
Ms Owen told the girls to be careful and that she would call their parents if they wanted and to come back into the shop if they were worried. The girls said they were okay and walked out of the shop. She said the girls walked out into the direction that Dave had walked.
Within a short period of time the girls came running back into the shop. She asked if they were okay and one of the girls said words to the effect that he tried to follow us home and said something dirty to us. She could not recall the exact words used. She said both girls were stressed and shaking.
Sometime later Dave returned to the service station but she did let him inside. The security guard at the service station then contacted the police.
Constable Miatke
Constable Miatke received a complaint about what had occurred at the service station and attended the service station and subsequently about 9.30 pm attended the address of the accused.
The accused presented at the door wearing shorts and he says a green bomber jacket.
Constable Marchesani
She attended the service station but was not able to recover any CCTV footage.
Detective Sergeant Harrison
Detective Sergeant Harrison arrested the accused on 14 February 2023. He deemed that the accused was not fit to participate in an electronic record of interview, and one was not conducted.
Police officers' body worn camera vision and audio
Police who attended the service station on the night in question (including Constable Miatke and Constable Marchesani) were wearing body worn cameras.
The complainants said to the officers that the offender had a ripped shirt, a green faded jumper or jacket, grey shorts past his knees, a blackish grey beard and looked as if he was in his 80s.
Police attended Mr Collard's residence at around about 9.30 pm, some two hours after the incident, and the body worn camera footage shows that the Mr Collard was wearing shorts that were around about knee length, a long-sleeved shirt and a dark cardigan-type jumper or jacket.
The police officers had a conversation with Mr Collard, however, they did not give him the caution and told him that he could tell them something about the incident, and in my view, what he said (when he agreed that he had been at the service station recently) would not be admissible on the basis of the fairness discretion, because the police had not given Mr Collard a caution in circumstances where they attended his address clearly suspecting that he was the person involved in the incident.
Maps of the area
Maps attached to the brief establish that the address where the accused was located on the evening in question is in close proximity to the service station.
In respect of each offence the elements the State must prove beyond reasonable doubt are as follows:
1.the offender dealt with the complainant in the manner alleged in the count relating to that complainant;
2.the dealing was indecent;
3.the complainant was a child of the age alleged in the indictment relating to that particular complainant; and
4.the offender was the accused.
In relation to the first element that the offender dealt with each of the children, a dealing includes an intentional physical touching and also includes conduct or behaviour with or towards the complainant: R v Holmes [2023] 1 Cr App R 25.
There is evidence which, if accepted, would establish that the offender dealt with each of the victims in the manner in which they allege, that is, that he physically touched them in the manner they said and was involved in conduct or behaviour with or towards each complainant.
In relation to the element of indecency, something is indecent if it is offensive or unbecoming to common standards of morality and has a sexual connotation considering all of the circumstances.
There is evidence which, if accepted, would establish the element of indecency as there was a physical touching accompanied by statements that clearly had a sexual connotation and was offensive or unbecoming to common standards of morality and has a sexual connotation considering all of the circumstances.
In relation to the third element that the complainant was a child, birth certificates establish the age of the complainants in respect of each count.
In relation to the fourth element, that is that the offender was the accused, there is no evidence that either KR or JFL had previously known the man they say indecently dealt with them.
In her child witness interview JFL described the man as Aboriginal 'looking about 80 something wearing a greyish greenish shirt like a grey jumper and black ankle jeans'. She could not remember anything about his face. She also says that he told her he lived down the street.
In her child witness interview KR said that the man said he lived 'down from there' when he was pulling them down to where all the houses were behind Coles. She said she had never seen the man before and looked like he was in his 40s or 80s. She described him as looking really old with a ripped up shirt and ripped jeans, and was wearing longish jeans, a blackish jumper and had a beard and grey hair and was wearing flip flop thongs. She did not see any piercing on his ears or his nose.
Ms Owen says that the person she saw talking to the girls was a man she knows as Dave who was a regular customer. He was an older guy towards his 50s, Aboriginal, short and chubby or fat. He had previously made several comments to her and was a regular customer. She cannot recall what he was wearing. She says that the security guard saw him when he came back the second time (there is no statement from the security guard).
Whilst I accept that the complainants do not identify the accused as the offender, each gives evidence of what they say the offender was wearing, his age and limited evidence as to his physical appearance. Such evidence is admissible but requires a strong judicial warning as to its dangers. Honest and convincing witnesses can be mistaken in identifying what a person was wearing and other characteristics. A witness' honesty does not guarantee the reliability or accuracy of such evidence. More than one honest and convincing witness can be mistaken in such evidence and significant miscarriages of justice have occurred in the past as a result of such evidence. An identification type direction warning the jury of such dangers would be required to be given to the jury.
Ms Owen knew Dave as a regular customer but has not been shown any photographs of the accused or participated in any identification parade to identify the accused as the person that she knows as Dave and CCTV footage has not been recovered from the service station.
Ms Owen says the security guard saw the person she knows as Dave when he returned to the service station, but there is no statement from the security guard.
Neither KR or JFL purport to identify the accused as the assailant. At the highest it is circumstantial identification evidence.
The combined evidence could establish that an older man of Aboriginal descent, known as Dave, wearing longish shorts, a ripped shirt, either a green jumper or jacket with a greyish blackish beard who lives in close proximity to the service station was the assailant.
Evidence could establish that the accused is Aboriginal, has a greyish black beard, is known as Dave, and lives in close proximity to the service station and was seen about two and a half hours later wearing shorts and a green jumper jacket.
The State's case as contained in the brief is not strong but there is evidence that could result in conviction.
The alleged offences and alleged circumstances of their commission
The alleged offences are two counts of indecently dealing, one with a child under the age of 13 years, the other with a child over the age of 13 years and under the age of 16 years.
The circumstances of the commission of the offences are recited both when I have dealt with a brief summary and when I have dealt with the evidence, but the salient features are of course that the assailant approached the girls in a public place and had physical contact with them whilst making suggestive remarks in an effort to encourage them to come to his house for sexual activity. The two girls did not go with the accused.
The offences are serious carrying a maximum penalty of 10 years for count 1 and 7 years for count 2.
If convicted there would be a risk of immediate imprisonment being imposed.
Mr Collard's character, antecedents, age, health and medical conditions
Mr Collard is currently 65 years of age.
He left school at the age of 14 and completed Year 9. He worked for a short period of time as a labourer but was diagnosed as suffering from schizophrenia, it appears, in 1980 and since that time has been on a pension as he is unable to work.
Regrettably, his mother died in 1985, his father in 1992 and his wife and mother of his six children died earlier this year.
A number of his brothers and sisters and one of his children died in tragic circumstances.
A guardianship and administration order has been made by the State Administrative Tribunal, pursuant to the Guardianship and Administration Act 1990 (WA) in November 2023.
He has been hospitalised in psychiatric institutions on a number of occasions and has been detained under the Mental Health Act since 18 August 2023.
When he is unwell he reports that he is able to read people's minds.
Mr Collard has limited understanding of his condition. In the past he has used cannabis and alcohol to excess and been non-compliant with his medication and Dr Rooprai says he lacks the capacity to consent to treatment.
Currently, whilst detained under the Mental Health Act, he is taking his medication, sleeping well, has good appetite, is maintaining his weight, and his behaviour has settled. Mr Collard continues to suffer from the illness of chronic paranoid schizophrenia and suffers from residual negative symptoms which affect his cognitive and functioning and is required to take chlorpromazine, quetiapine and flupentixol, which are all antipsychotic medications.
Mr Collard has a relatively lengthy criminal record.
As an adult in the 1970s he was convicted of offences mainly traffic related. In the 1980s he was convicted of common assault, disorderly conduct, hindering police and damage. In the 1990s he was convicted of stealing offences, breaches of bail, damage, assault occasioning bodily harm, refusing to leave the licensed premises and disorderly conduct.
In 2000 he was sentenced to 4 ½ years' imprisonment for robbery in company, assault with intent to cause grievous bodily harm, assault occasioning bodily harm and common assault. He was convicted again in 2009 of assaulting a public officer. Since 2009 he has been convicted only of possession of cannabis in 2011 and breach of a restraining order (2019).
As can be seen there has been a tapering off of the offending in the last 14 years. Prior to that however there are numerous offences for assaults of various types (5) and the robbery in company.
Mr Collard is frail. His advancing age and declining physical condition result in him posing less of a risk compared to a younger and more able person.
He has a longstanding diagnosis of schizophrenia and is an involuntary patient under the Mental Health Act residing at Selby Lodge Hospital.
He has not been convicted of any sexual based offence.
The public interest
In considering the public interest the courts consider the effect of a custody order, the risk posed by the accused of committing further offences if released, the danger posed to the community by that risk and the dignity and rights of the accused and his rehabilitation: The State of Western Australia v SU [No 2] [2017] WADC 20 (Chief Judge Sleight).
The 2023 Act, insofar as is relevant to this hearing, specifies that the objects of the Act are inter alia, to ensure the protection of the community (s 9) and the court must have regard to the principles specified in s 7(2) and referred to at [16].
As s 8 makes clear, at all times, the paramount consideration is the protection of the community.
In relation to the s 7(2) principles of the 2023 Act, I find as follows:
(a)The least possible restriction on Mr Collard's freedom, consistent with the protection of the community
Clearly the least possible restriction on Mr Collard's freedom is to make a release order and the community is protected because of his frailty and declining health and his detention as an involuntary patient.
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(c)The best possible treatment, care and support
There is nothing before me to indicate that the making of a custody order would not result in Mr Collard receiving adequate treatment, care and support.
There is no evidence that any better treatment, care and support would be provided by a release order or that Mr Collard would avail himself of those services.
(d)Culturally appropriate
There is no evidence before me on any cultural issue although have no difficulty in accepting that it is not culturally appropriate for a person of any culture to be subject to a custody order.
(e)Restricting freedom more severely than if they had been convicted of the offence that they had been found to have, or are alleged to have, committed
The offences are clearly serious notwithstanding that the offending occurred over a brief duration and did not involve any touching of the breasts or genital regions of the victims nor did they accompanying him as he requested. Whilst this offence in many circumstances may carry a period of immediate imprisonment, in light of Mr Collard's age, decreased physical capacity, schizophrenia, involuntary patient status and residence at Selby Lodge, there would be a real possibility that if he was found guilty after trial or pleaded guilty he would receive a sentence other than an immediate custodial sentence.
If a custody order is made, then it remains until conditional or unconditional release order is made by the Governor or leave of absence is granted by the Governor for a period not exceeding 14 days at any one time, conditionally or unconditionally.
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(k)The victims of the offence should have the opportunity to be acknowledged and heard
The State have not sought to provide a victim impact statement, although the victims of the offence have been provided with the opportunity of providing such a statement.
(l)The role of carers and families in the treatment, care and support of the person with mental impairment should be recognised
The harsh reality for Mr Collard is that both of his parents are deceased, as is his wife.
From the body worn camera it can be seen that Mr Collard was staying with members of his family at the time of the commission of this offence. There is no evidence of the family being directly involved in the medical treatment or medical care of Mr Collard however I infer from the fact he was staying with the son that he had been providing support to his father.
Protection of the community
This is a paramount consideration, and it is relevant that Mr Collard is non‑compliant with his medication when he is in the community and has a significant criminal record, albeit the frequency of offending has reduced over recent years. The community is protected because of Mr Collard's frailty, declining mental and physical health and his detention as an involuntary patient under the Mental Health Act.
Conclusion
As the law currently stands, there are only two options, a custody order or an order that Mr Collard be unconditionally released.
The factors that weigh in favour of a custody order are the strength of the State's case, the number of victims, their ages, the circumstances of the offending which involved the accused approaching two children at a public place, physically touching them and his persistence in encouraging them to come to his residence to engage in sexual activity.
Factors in favour of a release order are the advancing age of Mr Collard, his frailty, his involuntary patient status, and the fact that he resides at Selby Lodge. His advancing age and reduced physical capacity mean that he poses less of a risk to the community compared to a younger person. The incident was of brief duration and did not involve any touching of the breasts or genital regions of the victims nor did they accompanying him as he requested. His schizophrenia is however a significant factor in the risk of reoffending. As stated previously the community is protected because of Mr Collard's frailty and declining mental and physical health and his detention as an involuntary patient under the Mental Health Act.
The purpose of a custody order is not to punish an accused found unfit to be tried for an offence of which they have not been convicted. A custody order serves a protective purpose: The State of Western Australia v Stimpson [No 2] [2020] WASC 19. That purpose being to protect the public.
If a custody order is made Mr Collard must be detained in an authorised hospital, a declared place, a detention centre or prison as determined by the Review Board until released by order of the government.
Mr Collard cannot be detained in an authorised hospital unless multiple criteria are met. That criterion includes that he has a mental illness requiring treatment, which treatment can only be provided satisfactorily in an authorised hospital and he does not have capacity to consent to that treatment.
Dr Rooprai's report states that Mr Collard suffers from mental illness, being chronic paranoid schizophrenia. That illness requires treatment and Mr Collard does not have the capacity to consent to that treatment. I infer that the treatment can only be provided satisfactorily in an authorised hospital because of Mr Collard's non-compliance with the medical regimen. It appears that only when he is in hospital does he comply with the medication regimen.
The possibility that Mr Collard would be detained in a prison (The State of Western Australia v Sanders [2012] WASC 409 [30]) is a matter properly taken into account. There is nothing in Dr Rooprai's report that suggest Mr Collard's condition creates a significant risk to his or other person's health or safety or results in a significant risk of serious harm to himself or to another person.
Whilst this offence in many circumstances may carry a period of immediate imprisonment, in light of Mr Collard's age, decreased physical capacity, schizophrenia, involuntary patient status and residence at Selby Lodge, there would be a real possibility that if he was found guilty after trial or pleaded guilty he would receive a sentence other than a custodial sentence.
The State's case cannot be described as overly strong. Indeed, slightly different descriptions of the offender are given by each of the victims in their statements as opposed to what they said to the police at the scene of the incident. Cases that rely on circumstantial identification evidence attract a Domican type direction (Domican v The Queen [1992] HCA 13).
Given Mr Collard's longstanding schizophrenia it is appropriate that he be managed by the mental health system. His mental health issues are being addressed. He is an involuntary patient under the Mental Health Act and residing at Selby Lodge.
For those reasons I make an order quashing the indictment without deciding Mr Collard's guilt and release him.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KH
Associate
16 FEBRUARY 2024
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