The State of Western Australia v Duckworth
[2023] WADC 24
•3 MARCH 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DUCKWORTH [2023] WADC 24
CORAM: RITTER DCJ
HEARD: 23 & 24 FEBRUARY 2023
DELIVERED : 3 MARCH 2023
FILE NO/S: IND 644 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
SOLOMON RAY DUCKWORTH
Catchwords:
Criminal law - Trial - Trial by judge alone - Unsoundness of mind - Criminal damage - Test of responsibility - Capacity - Knowledge that act 'wrong'
Legislation:
Criminal Code (WA), s 1, s 26, s 27, s 27(1), s 118, s 142, s 444, s 444(1)(b)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 3, s 21(a), s 24, s 25
Criminal Procedure Act 2004 (WA), s 93(1)(e), s 119(1), s 146, s 147(2), s 149(1)
Evidence Act 1906 (WA), s 32
Result:
Not guilty by reason of unsoundness of mind
Representation:
Counsel:
| The State of Western Australia | : | Ms R J Mitchell |
| Accused | : | Mr M Hager |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Tudori Hager Grubb |
Case(s) referred to in decision(s):
Evans v The State of Western Australia [2010] WASCA 34
R v Porter (1933) 55 CLR 182; [1936] ALR 438
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
The State of Western Australia v Pearson [2022] WASC 191
RITTER DCJ:
Indictment and summary of outcome
This is a judge alone trial.
Mr Duckworth stands charged by an indictment dated 24 May 2022 that, contrary to s 444(1)(b) of the Criminal Code (WA) (the Code), on 18 October 2020 at Jandakot, he wilfully and unlawfully damaged property, namely a business premises, and office equipment the property of Babich Maintenance and Steriliser Services Pty Ltd.
It was alleged, in summary, that Mr Duckworth deliberately drove his motor vehicle at speed into a building and caused nearly $500,000 damage.
The only issue in the trial is whether Mr Duckworth is not criminally responsible for his conduct, on account of being of unsound mind under s 27 of the Code.
Mr Duckworth has the onus of establishing this on the balance of probabilities.
The State and the accused both called psychiatrists with forensic expertise and considerable experience in giving evidence on the issue of the 'three capacities' under s 27 of the Code. Both experts agreed that, at the time in question, Mr Duckworth lacked the third capacity in s 27 of the Code. That is, he lacked the capacity to know what he was doing was wrong. As I set out below, based upon this evidence and my understanding of the law with respect to s 27, Mr Duckworth has established that at the relevant time he was of unsound mind. Therefore, he is found not guilty on that basis.
Due to the legislative scheme I refer to below, I have no discretion as to what order I may make following upon my decision. I must impose a custody order upon Mr Duckworth under s 21(a) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (CLMIA Act). Accordingly, this is the order I will make.
Procedural background
By order made by Prior DCJ on 20 February 2023, the trial of Mr Duckworth was by judge alone under s 118 of the Code. At the commencement of the hearing, counsel agreed that I should determine the issue set out in s 93(1)(e) of the Criminal Procedure Act 2004 (WA) (CPA) and determine whether Mr Duckworth could establish on the balance of probabilities that he was not guilty by reason of unsoundness of mind. Counsel agreed that if I did not make such a finding then, in circumstances I will outline, as all of the elements necessary to establish the commission of the offence were not contested and accepted to be proved beyond reasonable doubt, Mr Duckworth would inevitably be found guilty of the offence charged.
Following a discussion with counsel, Mr Hager on behalf of the accused, tendered signed admissions pursuant to s 32 of the Evidence Act 1906 (WA).
These admissions were contained in a document signed by Mr Hager on behalf of Mr Duckworth. The admissions were:[1]
1.At about 6.50 am on Sunday, 18 October 2020, the accused drove his Hyundai Elantra in a north easterly direction in Jandakot.
2.The accused deliberately drove his vehicle off the road and into a commercial building in Jandakot.
3.The accused knew or believed that driving his vehicle into the building was likely to result in damage to property.
4.The accused caused extensive damage to the business premises and office equipment at the business premises.
This was received as exhibit 1.
[1] The admissions are paraphrased in order to not set out the address of the damaged premises.
Following this, Ms Mitchell for the State, presented its case by way of documentary and 'video' evidence and the calling of an expert witness, consultant forensic psychiatrist, Dr Steven Patchett.
The documentary exhibits tendered by the State were numbered as follows:
2 Agreed statement of material facts 3 Psychiatric report of Dr S Patchett including Curriculum Vitae of Dr S Patchett 4 Statement of Mr D M Babich dated 26 July 2021 5 Statement of Ms S M Babich dated 20 July 2021 6 Statement of Ms M K Bond dated 27 July 2021 7 Statement of Constable Wood dated 26 July 2021 8 Statement of Constable Arnett dated 22 July 2021 9 Statement of Snr Con Newton dated 24 July 2021 10 Statement of Ms S G McKenzie dated 13 July 2021 11 Bundle of photographs from the scene of the incident 12 Statement of Snr Con Feldmann dated 11 February 2023 13 Major Crash Initial Collision Assessment Report dated 18 October 2020 14 Forensic collision report of Snr Con Feldmann 15 Financial invoices and statements substantiating damage caused by the incident totalling $486,606 16 Certificate of registration of Babich Maintenance and Steriliser Services Pty Ltd 17 Certificate of drug analysis dated 24 November 2020 18 West Australia Road Traffic Act from C dated 27 October 2020 19 Transcript of BWC footage interview with accused 20 Discharge letter from Armadale and Kalamunda group from Dr Patel dated 3 September 2020 21 Discharge letter from Fiona Stanley Hospital dated 27 October 2020 22 Discharge summary from Armadale Acute MH Unit dated 9 May 2017 23 Forensic Services Adult Client Case History List of Mr S R Duckworth 24 Disc of CCTV footage from Access Plumbing Pty Ltd on 18 October 2020 25 Disc of BWC of interview with Constable Newton dated 18 October 2020 26 Extract from International Statistical Classification of Diseases and Related Health Problems 10th division, vol 1
Exhibit 24 is the CCTV footage from a neighbouring business premises which showed the vehicle which was being driven by Mr Duckworth crash through fence gates, then speed without hesitation towards the building with which the vehicle collided. There is no vision of the actual collision, but the speed with which the vehicle travelled through the gates and towards the building was quite alarming.
The CCTV footage then shows, somewhat remarkably, Mr Duckworth walking away from the crash site and around in the car park adjacent to that site. He can then be seen leaving by walking through the gates to what seems to be a parking area and then down the road.
Photographs were tendered by the State showing the damage to the business premises and the damage to Mr Duckworth's vehicle. Both are extensive and shocking in their own way. Documents received as exhibits from the State establish that the total cost of demolishing and rebuilding the business premises was $486,000.
Later that morning Mr Duckworth was taken to Fiona Stanley Hospital. There he was treated for his injuries and also interviewed by police officers. He was interviewed on two occasions. The first time was about 8.00 am. He was then administered with a caution by a police officer and spoken to about what had happened. This occurred even though he was at that time undergoing medical treatment in the sense of lying on a stretcher and apparently having an intravenous drip. After the caution, the police officers asked Mr Duckworth questions. It is apparent from the vision of this interview, taken from the body camera worn by one of the police officers, that Mr Duckworth was, to put it colloquially, not entirely with it and at a time or times falls asleep or nearly falls asleep. Due to the nature of the issues in contention, there were no submissions made about the voluntariness or otherwise of the statements made during the interview.
The second interview was about 55 minutes later and also recorded on a body worn camera. Mr Duckworth seems to be in the same location and physical position. There is some attempt at the commencement of the interview to remind Mr Duckworth that he is under caution. Whether this was done fully or sufficiently to constitute a proper caution need not be further examined in this case. Mr Duckworth then answers more questions that are put to him by police.
The contents of these interviews are relevant in particular because the State's expert witness, Dr Patchett, viewed the interviews as part of the materials he considered in preparing his report. Dr Victoria Pascu, the only defence witness called, viewed a transcript of the interviews after completing her expert report. However, importantly, Dr Pascu said the transcript did not in any way alter the opinions she gave.
As mentioned, Dr Patchett was the only witness for the State who gave evidence orally. He was examined by Ms Mitchell and cross‑examined by Mr Hager. I will refer to the substance of his evidence below.
At the conclusion of Dr Patchett's evidence, the State closed its case.
I then addressed Mr Hager in terms of s 142 of the Code. After a short adjournment, Mr Hager informed me that the accused elected not to give evidence but that he would call one witness, being Dr Pascu. Dr Pascu then gave her evidence‑in‑chief but was not cross‑examined.
That concluded the defence case. The court then adjourned. I acceded to an application by both counsel to adjourn to enable them to finalise their closing submissions, including by reference to the transcript of the evidence of Dr Patchett and Dr Pascu.
Later that afternoon I received an outline of closing submissions on behalf of the State dated 23 February 2022. This very helpfully set out the charge and facts, issues for the court to determine, psychiatric evidence, the findings (it was submitted) I ought to make and the orders consequent upon such findings.
During oral submissions both counsel agreed that the findings I ought to make and orders to be made were as set out in the State's outline of closing submissions.
This was that I ought to make a finding that Mr Duckworth was not guilty on account of unsoundness of mind and that it followed I was required to make a custody order under the CLMIA Act.
The law - s 27 of the Code
Section 26 and s 27 of the Code are as follows:
26.Presumption of sanity
Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.
27.Insanity
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(2)A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
Mental impairment is defined in s 1 of the Code to mean 'intellectual disability, mental illness, brain damage or senility'.
The relevant principles to be applied in determining a case such as this were clearly outlined by Corboy J in The State of Western Australia v Pearson[2] as follows:
[2] The State of Western Australia v Pearson [2022] WASC 191 [26] (Pearson).
In my view, s 27(1) of the Criminal Code is to be interpreted and applied according to the following propositions:
(a)The issue of criminal responsibility raised by s 27(1) falls to be determined before the issue of Mr Pearson's intent at the time he stabbed Abbey and Jacob. The question of intention only arises if Mr Pearson is found to be criminally responsible for his acts.
(b)What constitutes a mental illness is a question of law; whether Mr Pearson suffered from a mental illness at the time he stabbed Abbey and Jacob is a question of fact.
(c)The wording of s 27(1) is broadly consistent with the observations of King CJ in R v Radford. Those observations were summarised by Jenkins J in The State of Western Australia v Lang [No 2]. Her Honour's summary has been adopted by other members of this court.
(d)The incapacity of a person to control their actions due to mental impairment mirrors s 23A of the Criminal Code. A person who is incapable of exercising the power of determination or choice due to a mental impairment is not criminally responsible for their acts in the same way as a person who does an act independently of the exercise of their will is not criminally responsible for the act.
(e)A person is deprived of the capacity to control their actions if 'they are deprived of the capacity to make a conscious decision to act (that is, to act voluntarily) or if they are deprived of the capacity to refrain or restrain themselves from doing a willed act (sometimes also referred to as the capacity to exercise the power of choice to act)'. A person may lack the capacity to control their actions as a result of a mental impairment even though their act was willed - for example, because they acted on a delusional belief or other psychotic phenomena that overwhelmed their capacity to control their actions.
(f)The question whether an accused person has the capacity to know that he or she ought not to do the charged act or make the charge omission requires the court to determine whether, at the time of the act or omission, the accused was able to appreciate that the act or omission was wrong according to ordinary community standards. The issue is whether, due to a mental impairment, the accused lack the capacity to reason rationally as to what is right or wrong according to ordinary community standards.
(g)There is no requirement that an accused person knew that the act was wrong in the sense of being contrary to law. What is required is that the accused knew 'right from wrong, good from evil, not legality from illegality.'
(h)The term 'know' means 'understanding, appreciate or comprehend'. Knowledge (short of understanding) that to kill is punishable by law does not prevent a finding that a person lacked the capacity to reason rationally as to what is right or wrong according to ordinary standards. Further, a finding of incapacity does not depend upon proof of a positive belief in the rightness of the accused's act.
(footnotes omitted)
Given the opinion of the psychiatrists that I will refer to below, [26(g)] and [26(h)] of his Honour's reasons are particularly relevant.
In [26(g)] Corboy J cites the decision of Stapleton v The Queen.[3] At the conclusion of [26(h)] Corboy J cited Evans v The State of Western Australia.[4]
[3] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 (Stapleton).
[4] Evans v The State of Western Australia [2010] WASCA 34 [60] (McLure P) (Evans).
In Devereux and Blake, Criminal Law in Queensland and Western Australia (9th ed, 2016), it says that in 'respect of the third capacity, the Code provides no guidance on whether it is a capacity to know that the act was against the law or a capacity to know that the act was against the moral standards of the community'.[5] In that text, the authors refer to R v Porter[6] and in particular the reasoning of Dixon J where his Honour said:[7]
… What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. …
[5] Chapter 8.112, page 175.
[6] R vPorter (1933) 55 CLR 182; [1936] ALR 438 (Porter).
[7] Porter (190).
In Stapleton, the High Court in effect reaffirmed the correctness of this approach.[8]
[8] Stapleton (367).
In Evans,[9] McLure P after quoting from the reasons of Dixon J in Porter,[10] said:
There is no suggestion of any material distinction between the common law and s 27 on this point. Thus the real issue for the jury in this case was whether the appellant had established on the balance of probabilities that at the time of the killing his mental impairment resulted in a complete incapacity to reason as to what is right or wrong according to ordinary standards. The term 'know' means 'understand', 'appreciate' or 'comprehend'. An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from understanding that he (or she) ought not do the act. Knowledge (short of understanding) that to kill is punishable by law does not prevent such a finding. Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct. Whether an act is right or wrong is determined by reference to an objective standard. The question is whether the appellant had a complete incapacity to reason as to what was, by that objective standard, right or wrong. In this case the appellant's subjective belief was relied upon by the experts to support the conclusion that he was in a psychotic state that prevented rational reasoning on right or wrong.
[9] Evans [31].
[10] Porter (189) - (190).
As stated in Criminal Law in Queensland and Western Australia,[11] her Honour therefore endorsed the common law position in Porter as applicable to the Code provisions.
[11] Chapter 8.113, pages 175 - 176.
Self directions
Section 119(1) of the CPA provides that:
In a trial by a judge alone, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.
The onus of proof in establishing a lack of criminal responsibility on account of unsoundness of mind is on the accused. The standard of proof is the balance of probabilities.
Despite this, I direct myself that any person who stands trial for a criminal offence in Western Australia is presumed to be innocent, both before and during their trial. Consequently, Mr Duckworth is presumed to be innocent of the charges alleged against him and the presumption of innocence continues to apply unless and until a guilty verdict is recorded. Accordingly, apart from the issues raised by s 26 and s 27(1) of the Code, the State has the onus of proving Mr Duckworth's guilt.
The State must prove Mr Duckworth's guilt beyond reasonable doubt. That requires the State to prove each element of the offence to that standard. Mr Duckworth must be found not guilty if the State has failed to prove any element of the offence beyond reasonable doubt.
I also direct myself to deliver a verdict according to the evidence presented to me as the trial judge. I am required to assess that evidence and make findings objectively and impartially. Considerations of emotion, sentiment, bias, sympathy or prejudice must take no part in my consideration.
My conclusions should be based only on the evidence and not on speculation or guesswork about matters that were not in evidence. Theories not supported by the evidence are to be disregarded.
Although I may consider both direct and indirect evidence, I may not decide a fact against the accused on the basis of inferences unless that inference is the only rational inference which may be made, based on the proven facts. As stated by Corboy J in Pearson:[12]
An inference is a conclusion of fact rationally drawn from a combination of proved facts. Accordingly, an inference can only be drawn from evidence that has been accepted as truthful and reliable. Speculation or conjecture must be avoided in drawing an inference. However, it is not necessary that a fact be proven beyond a reasonable doubt before it can be used for the purpose of drawing an inference (unless proof of the fact is essential to a finding of guilt); it is sufficient that the fact is established by evidence that has been accepted as truthful and reliable.
[12] Pearson [34].
Mr Duckworth, as the accused, elected not to give evidence. This was his right and no adverse inferences can be drawn against him for exercising this right.
The main issue to be determined in this case is by reference to the expert evidence that has been given. However, the evidence of a witness, even possessing specialist knowledge, does not necessarily have to be accepted. Expert evidence is like all evidence in a trial and must be carefully considered before a decision is made to accept or reject the evidence, in whole or in part.
Both parties accepted that Dr Patchett and Dr Pascu were qualified to give evidence of their opinions and conclusions. There was no real issue about how they had reasoned in their opinions and their impartiality was not in dispute.
Analysis of evidence and findings
Although they did not agree in their conclusions on all three of the capacities referred to in s 27 of the Code, both experts agreed that at the time of committing the act that constitutes the charge, Mr Duckworth lacked the capacity to know that he ought not to do the act.
As stated earlier, Mr Duckworth elected not to give evidence. That was of course, his right to remain silent. No inference can be drawn against Mr Duckworth because he exercised that right.
Some of the factual foundations for the opinions which were expressed by Dr Patchett and Dr Pascu were based upon information received from Mr Duckworth. However, it was accepted by both parties that Mr Duckworth had been open and honest in what he said to the doctors.
The psychiatric evidence was, with respect, well summarised by Ms Mitchell in the State's written outline of closing submissions. Further, Mr Hager did not submit there were any inaccuracies in the summary. Accordingly, the following summary of evidence is largely based upon the submissions of the State.
Dr Patchett was of the opinion that:[13]
(a)At the time of the incident Mr Duckworth was suffering from paranoid schizophrenia.[14]
(b)Paranoid schizophrenia constitutes a mental impairment as defined in the CLMIA Act.[15]
(c)At the time of the incident, Mr Duckworth was experiencing psychosis[16] due to a relapse of his paranoid schizophrenia.[17]
(d)Mr Duckworth's psychosis included thought disorder, hallucinations and delusions.[18]
[13] Exhibit 3, Prosecution brief, page 146.
[14] ts 52.
[15] ts 59.
[16] ts 52.
[17] ts 53.
[18] ts 51, ts 53.
With respect to the three capacities referred to in s 27(1) of the Code, Dr Patchett was of the opinion that:[19]
[19] Exhibit 3, Prosecution brief, page 154.
(a)Capacity 1 - to understand what he is doing:
(i)At the time of the incident, Mr Duckworth understood what he was doing in driving into the building, and in particular, understood that his actions could have resulted in his death.[20]
[20] ts 54.
(ii)Mr Duckworth was therefore not deprived of the capacity to understand what he was doing.
(b)Capacity 2 - to control his actions:
(i)At the time of the offence, Mr Duckworth was not under a delusion of passivity such that the control of his motor activity was overborne by psychosis.[21]
(ii)Mr Duckworth was therefore not deprived of the capacity to control his actions.[22]
(iii)Although Mr Duckworth was suffering from command auditory hallucinations at the time of the commission of the offence,[23] Dr Patchett opined that was more relevant to the third capacity in s 27(1) of the Code.[24]
(c)Capacity 3 - to know that he ought not do the act:
(i)At the time of the commission of the offence Mr Duckworth was deprived of the capacity to know he ought not do the act of driving into the building.[25]
(ii)Mr Duckworth was suffering from psychosis at the time, characterised by delusions and auditory hallucinations that led him to believe that an alternative reality existed in which he must carry out the act he did in order to escape perceived pursuers, or kill himself.[26]
[21] ts 55 - ts 56.
[22] ts 54.
[23] ts 55.
[24] ts 55.
[25] ts 60.
[26] Exhibit 3, Prosecution brief, page 154; ts 57.
As stated earlier, the defence called expert evidence from consultant forensic psychiatrist, Dr Pascu.[27] Dr Pascu was not cross‑examined by the State. Accordingly, it would be difficult for the State to make a submission that any of the opinions of Dr Pascu should not be accepted, and indeed, the State made no such submission. In terms of the difference of opinions between Dr Patchett and Dr Pascu, the State submitted that this was not material in the present case because both experts agreed that Mr Duckworth lacked the third capacity under s 27 of the Code, when he engaged in the acts constituting the offence.
[27] ts 63 - ts 71.
In general terms, Dr Pascu was of the opinion that:
(a)Mr Duckworth has a history of chronic paranoid schizophrenia.[28]
(b)Mr Duckworth developed an acute relapse of his psychotic illness after ceasing his medication a few months prior to the incident.[29]
(c)Mr Duckworth's psychotic symptoms gradually worsened leading up to the date of the incident and included command auditory hallucinations to self‑harm, alongside somatic and olfactory hallucinations with paranoid, grandiose and referential delusions.[30]
[28] ts 66.
[29] ts 68.
[30] ts 68.
In relation to the capacities referred to in s 27(1) of the Code, Dr Pascu was of the opinion that:
(a)Capacity 1 - to understand what he is doing:
(i)At the time of the incident, Mr Duckworth was not deprived of the capacity to understand what he was doing.
(b)Capacity 2 - to control his actions:
(i)At the time of the incident, Mr Duckworth was more likely than not deprived of the capacity to know that he ought not to do the act.[31]
(ii)This capacity can be deprived when a person experiences command auditory hallucinations to do something, or the act they are accused of doing,[32] which is what occurred here.
(c)Capacity 3 - to know that he ought not do the act:
(i)At the time of the offence Mr Duckworth was deprived of the capacity to know he ought not do the act because of his psychosis and impaired judgment.[33]
[31] Exhibit A, page 12.
[32] ts 69.
[33] ts 69.
Dr Patchett and Dr Pascu formed the opinion that Mr Duckworth suffered from paranoid schizophrenia based upon ICD-10, which is the International Statistical Classification of Diseases and Related Health Problems, 10th revision, vol 1 (5th ed, 2016) published by the World Health Organisation. In that work, schizophrenia, schizotypal and delusional disorders are contained in ch 5 (F20 - F29). Chapter 5 F20.0 refers to paranoid schizophrenia as being:
… dominated by relatively stable, often paranoid delusions, usually accompanied by hallucinations, particularly of the auditory variety, and perceptual disturbances. Disturbances of affect, volition and speech, and catatonic symptoms, are either absent or relatively inconspicuous.
Dr Patchett said that he preferred to use this model of analysis rather than the American based DSM, now in its 5th edition.
Overall, I accept the evidence of Dr Patchett and Dr Pascu as to the mental impairment which Mr Duckworth was suffering at the time of the commission of the offence. This was paranoid schizophrenia. I also accept their evidence that Mr Duckworth, as a matter of fact, lacked the third capacity referred to in s 27(1) which is a capacity to understand that driving the vehicle into the building at the time was something which ought not to be done by a reasonable or moral person.
As submitted by the State and on behalf of the accused, it is not necessary in this case to determine the diagnostic disagreement between Dr Patchett and Dr Pascu about whether or not Mr Duckworth was able to form the second capacity referred to in s 27(1) of the Code when he engaged in the acts constituting the offence. It may well be a matter of nuance.
In my opinion therefore, as submitted by both counsel, I find that Mr Duckworth was not criminally responsible for the act set out in the indictment on account of unsoundness of mind.
Recording of findings
Section 146 of the CPA requires that if, under s 27 of the Code, an accused is found not guilty of a charge on account of unsoundness of mind, in a trial by judge alone, the court must record the finding. Further, the court may enter a judgment of acquittal of the offence charged on account of unsoundness of mind in respect of the accused, under s 147(2) of the CPA. This will occur in the present case.
Consequential orders - custody order
If a court acquits an accused of a charge on account of unsoundness of mind, s 149(1) of the CPA provides that the court must deal with the accused under the CLMIA Act.
Section 21(a) of the CLMIA Act requires that if an accused is acquitted by a superior court (which includes the District Court) of an offence on account of unsoundness of mind, if the offence is a Schedule 1 offence, the court must make a custody order in respect of the accused. The present offence, being under s 444 of the Code is included as a Schedule 1 offence under the CLMIA Act.
Accordingly, as a matter of law I must make a custody order in respect of the accused. A custody order, under s 3 of the CLMIA Act means that the accused be kept in custody in accordance with pt 5 of the CLMIA Act.
Section 24 and s 25 which are within pt 5 of the CLMIA Act, provide as follows:
24.General effect of custody order
(1)A mentally impaired accused is to be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Board, until released by an order of the Governor.
(2)A mentally impaired accused is not to be detained in an authorised hospital unless the accused has a mental illness that is capable of being treated.
(3)A mentally impaired accused should be detained in an authorised hospital only if the Board is satisfied -
(a)the accused has a mental illness requiring treatment; and
(b)that, because of the mental illness, there is -
(i)a significant risk to the health or safety of the accused or to the safety of another person; or
(ii)a significant risk of serious harm to the accused or to another person;
and
(c)the accused does not have the capacity to consent to treatment; and
(d)the treatment can only be provided satisfactorily in an authorised hospital.
(4)Subsection (3) is a directory provision.
(5A)A mentally impaired accused is not to be detained in a declared place that is established by the Disability Services Commission under the Disability Services Act 1993 (a DSC declared place) unless the Board -
(a)is satisfied that the accused is a person with disability as defined in the Disability Services Act 1993 section 3 and the predominant reason for the disability is not mental illness; and
(b)is satisfied that the accused has reached 16 years of age; and
(c)has regard to the degree of risk that the accused's detention in the declared place appears to present to the personal safety of people in the community or of any individual in the community.
(5B)The Board may determine that a mentally impaired accused be detained in a DSC declared place only if the member referred to in section 42(1)(bb) is present at the meeting at which the custody order is made.
(5C)Despite subsection (1), even if the Board determines that a mentally impaired accused should be detained in a DSC declared place, the accused is not to be detained in a DSC declared place without the consent of the Minister to whom the Disability Services Act 1993 is for the time being committed.
(5)A mentally impaired accused is not to be detained in a detention centre unless the accused is under 18.
25.Place of custody to be determined within 5 days of order
(1)Within 5 working days after the custody order in respect of a mentally impaired accused is made, the Board is to -
(a)review the case of the accused; and
(b)subject to section 24, determine the place where the accused is to be detained.
(2)Until the Board determines the place where the accused is to be detained, the accused is to be detained -
(a)if when the custody order is made the accused is in an authorised hospital having been admitted, whether as an involuntary inpatient or otherwise - in an authorised hospital;
(b)in any other case - in a prison or a detention centre.
(3)Where subsection (2)(a) applies the accused -
(a)if admitted to the authorised hospital as an involuntary inpatient - is not entitled to be released from the hospital under the Mental Health Act 2014 Part 7 Division 4 or to be granted leave of absence under Part 7 Division 6 of that Act; or
(b)if admitted to the authorised hospital in any other circumstances - is not entitled to be released from the hospital.
In her report dated 22 March 2022, Dr Pascu included the following recommendations:
76.If the court decides on a custodial disposition Mr Duckworth will require follow up by the Prison Medical Services in liaison with the prison mental health service to monitor his mental state and ensure that the treatment is provided.
77.It is important to state that the psychiatric treatment in prison is only offered on a voluntary basis. Should Mr Duckworth become noncompliant with the treatment he will require involuntary treatment in hospital, under the Mental Health Act.
78.I also note that with the level of mental health and psychological services available in prison Mr Duckworth is unlikely to receive the level of individual support that he currently receives in the community with input from mental health services, his GP and the NDIS support workers in his supported accommodation.
79.The provision of psychological and mental health services in prison is focused on managing people with behavioural disturbances and this potentially leads to people like Mr Duckworth, who do not create problems, being overlooked.
80.If the court decides on a community-based disposition Mr Duckworth will continue to live in his unit, with ongoing supports provided by his NDIS supports and his GP who will be able to refer back to the Eudoria Community Mental Health clinic should that be required.
81.Having the above supports, I believe will provide a better, more therapeutic framework for Mr Duckworth's ongoing treatment for his major psychiatric disorder.
Whilst the court has no discretion other than to make a custody order as referred to above, and it is for the Mentally Impaired Accused Review Board to decide Mr Duckworth's immediate and longer‑term future, I expect the Board will have regard to the recommendations contained in the report of Dr Pascu.
Orders
I will make the following orders:
1.Mr Duckworth is found not guilty of the charge in the indictment on account of unsoundness of mind.
2.A judgment of acquittal of the offence charged is entered on account of unsoundness of mind.
3.A custody order is made against Mr Duckworth under s 21(a) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).
Assistance from counsel
As I said at the conclusion of the hearing, the administration of justice in this case was enhanced by the very practical and professional approach taken by both counsel in determining the issues in dispute, the way in which the evidence was presented and in their submissions.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
HM
Associate to Judge Ritter
2 MARCH 2023
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