The State of Western Australia v Evitt
[2022] WADC 107
•2 DECEMBER 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- EVITT [2022] WADC 107
CORAM: BLACK DCJ
HEARD: 29 NOVEMBER 2022
DELIVERED : 2 DECEMBER 2022
FILE NO/S: IND 206 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
DANIEL JOSEPH EVITT
Catchwords:
Criminal - Fitness to plead - Accused suffers from autism and ADHD - Whether unable to follow the course of the trial - Whether unable to properly defend the trial - No new principles - Turns on own facts
Legislation:
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Criminal Procedure Act 2004 (WA)
Result:
Accused fit to stand trial
Representation:
Counsel:
| The State of Western Australia | : | Mr J Chu |
| Accused | : | Mr G Barns SC with Mr S Nigam |
Solicitors:
| The State of Western Australia | : | Director of Public Proseccutions (WA) |
| Accused | : | Nigams Legal Pty Ltd |
Cases referred to in decision:
Craig v The Queen [2018] HCA 13
Eastman v The Queen [2000] HCA 29
Jeffery v The State of Western Australia [2018] WASCA 219
Mack v The State of Western Australia [2014] WASCA 207
Nagatayi v The Queen (1980) 147 CLR 1
R v Dunne [2001] WASC 263
R v Kennedy [2017] SASCFC 170
R v ND [2003] QCA 505
The State of Western Australia v Huggins [2017] WASC 243
The State of Western Australia v Mack [2012] WASC 127
BLACK DCJ:
Background
Daniel Joseph Evitt was charged with three offences of sexually penetrating a child who was aged between 13 and 16 years of age, contrary to s 321(2) of the Criminal Code[1] (the charges). The charges relate to the complainant, EM, who was approximately 14 years of age at the time of the alleged offending.
[1] Criminal Code Act Compilation Act 1913 (WA) s 321(2).
The allegations are said to have taken place during an incident on 19 May 2021 at the accused's home in Redcliffe. At that time the accused was aged approximately 30 years of age.
The charges were committed to the District Court on 10 February 2022. No indictment has yet been presented by the State.
The matter came before me on 14 October 2022 for a hearing to determine whether or not the accused is mentally fit to stand trial in relation to the charges.
Relevant legislation
Section 130 of the Criminal Procedure Act 2004 (WA)[2] requires that any question about an accused's mental fitness to stand trial must be dealt with under the Criminal Law (Mentally Impaired Accused) Act (the Act).[3]
[2] Criminal Procedure Act 2004 (WA) s 130.
[3] Criminal Law (Mentally Impaired Accused) Act 1996 (WA).
An accused is presumed by law to be mentally fit to stand trial unless and until the contrary is found: s 10 of the Act.
The question of whether the accused is mentally fit to stand trial may be raised in the District Court at any time before or after an indictment is presented to the court: s 11 of the Act. In the present case, the accused has been committed to this court, but no indictment has yet been presented.
While it is the case that either the prosecution or the defence or the presiding judicial officer can raise the fitness of an accused to be tried, in this case both parties have agreed that this is a question that requires the determination of this court.
The Act requires that the determination of whether the accused is mentally fit to stand trial is to be decided by the court on the balance of probabilities. The presiding judicial officer can inform himself or herself in any way he or she thinks fit: s 12(1) of the Act.
The relevant criteria I am required to consider is as set out at s 9 of the Act:
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
…
The expression 'mental impairment' is defined in s 8 of the Act to mean intellectual disability, mental illness, brain damage or senility.
Section 19 of the Act sets out the procedure to be followed in assessing the mental fitness of the accused to be tried.
If I decide that the accused is not mentally fit to stand trial it is then necessary for me to consider whether the accused may become fit within six months.
The application of the relevant principles has been set out usefully by Hall J in The State of Western Australia v Huggins.[4]
[4] The State of Western Australia v Huggins [2017] WASC 243.
Issue to be determined
At this stage the parties have sought my determination only on the question of whether the accused is mentally fit to stand trial within the meaning of s 9 of the Act. Depending upon the outcome of that application I will then programme a further hearing as necessary.
The strength of the prosecution case one way or the other is irrelevant to the determination I must make. To the extent that the State's written submissions have sought to persuade me that this is a very strong case, even if that were true, it is irrelevant to this application.
The parties agree:
(a)that the accused does suffer from a mental impairment in the form of a mental illness by reason of his diagnosed conditions of Attention-Deficit Hyperactivity Disorder (ADHD) and Autism Spectrum Disorder (ASD);
(b)that the relevant subsections of s 9 of the Act to be considered in this application are whether the accused has proved that, because of his mental impairment, he is:
(i)unable to follow the course of the trial: s 9(e); and/or
(ii)unable to properly defend the charge: s 9(g).
This case raises as a central issue the manner in which the accused may respond to the anxiety and stress that will be associated with the trial process. The possibility of the accused's cognitive ability and his capacity to emotionally regulate deteriorating during the trial underlay much of the evidence adduced by the two psychiatrists called at the fitness hearing.
Pertinent legal authorities
Where consideration is given to whether an accused person is capable of understanding the trial so as to be able to make a proper defence, I am required to have regard to the fact that the accused here is defended by counsel. The accused is not expected to know nor understand the law, but he must be able to instruct his counsel as to the facts of the case and must be able to understand the evidence: see Nagatayi v The Queen[5] cited in R v Dunne. In R v Dunne the court noted the following:[6]
It is the ability of the accused to follow the course of the trial, understand the substantial effect of the evidence presented by the prosecution and/or properly defend the charge assisted by counsel which are the relevant questions. The accused does not have to understand the evidence in detail, nor does he have to understand the law and its application to the facts of the case.
[5] Nagatayi v The Queen (1980) 147 CLR 1 [9].
[6] R v Dunne [2001] WASC 263 [12].
I must also proceed on the basis that the accused must be able to give evidence at his trial. This is not dependent on a factual inquiry as to whether the accused in fact intends to give evidence or is likely to testify as was suggested by the State in the course of oral submissions.
When considering the ability of an accused to follow the course of a trial and to properly defend the charge, the decision in Jeffery v The State of Western Australia[7] is of importance. The decision to give evidence is ultimately one to be made by the accused and is 'very often the most central and important choice to be made in a criminal trial' [179] citing Craig v The Queen[8] and R v Kennedy.[9]
[7] Jeffery v The State of Western Australia [2018] WASCA 219 [179].
[8] Craig v The Queen [2018] HCA 13 [23].
[9] R v Kennedy [2017] SASCFC 170.
Further, as was recognised in the case of R v ND,[10] cited with approval in Jeffery, in a case of allegations of sexual assault which will largely proceed on an oath vs oath case between the complainant and the accused, the following was observed (at [40]) in respect of the accused's failure to give evidence (due to negligent advice by his counsel in that matter):
As a result the jury was presented with only one sworn version. Although there were particular matters in the complainant's evidence which might have caused doubts, taken as a whole and uncontradicted, it justified the jury in reaching a conclusion of guilt beyond reasonable doubt. The situation might have been very different had they had the appellant's denial on oath; and the evidence of his father might also have assisted. In the circumstances of this case there is every reason to fear that a miscarriage of justice has occurred.
[10] R v ND [2003] QCA 505.
I have also had regard to the decision of The State of Western Australia v Mack[11] and on appeal in Mack v The State of Western Australia,[12] the facts of which have some similarities to the matters in issue here.
[11] The State of Western Australia v Mack [2012] WASC 127.
[12] Mack v The State of Western Australia[2014] WASCA 207.
What is the nature of the mental impairment suffered by the accused?
As noted above, s 8 of the Act defines 'mental impairment' to mean 'intellectual disability, mental illness, brain damage or senility'.
The accused does not suffer from an intellectual disability, but he does suffer from a mental illness. A mental illness is defined in s 8 of the Act as:
An underlying pathological infirmity of the mind, whether or short of 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.
Both parties concede that the accused's condition is a mental impairment within the meaning of the Act.
The accused's mental illness, which is the product of the combined diagnosis of ASD and ADHD, gives rise to an infirmity in the accused's mental ability to focus, concentrate and can cause him to decompensate in response to stressful stimuli.
The accused was diagnosed with ASD during his school years and subsequently from ADHD. Both these diagnoses have been reconfirmed on a number of occasions over the years. The accused has a high degree of social disability leading to him needing extensive supervision, some of which is provided by professional carers and some by his parents.
Evidence adduced by the parties
The court has been provided with the following relevant materials to assist in the determination of these issues:
1.Two psychiatric reports prepared by Dr Seaburne‑May dated 8 November 2021 and 21 April 2022.
2.Two psychiatric reports prepared by Dr SRD Addis dated 25 August 2021 and 12 October 2022.
3.Better Rehab occupational therapy report dated June 2022.
4.Statement of Corrie Piripi.
5.NDIS plan approval dated 9 November 2021.
6.Transcript of proceedings dated 23 November 2021 in the Perth Magistrates Court.
Further, at a hearing that took place before me on 14 October 2022, oral testimony was received from the father of the accused, Mr Brent Evitt, Dr Seaburne-May and Dr Addis.
Relevant expert evidence
The two psychiatrists who were called to give evidence on 14 October 2022 had prepared reports relevant to these charges and they had both assessed the accused and provided a report in relation to an unrelated charge in the Perth Magistrates Court on an earlier occasion. On that prior occasion on the face of the reports and without a hearing, the learned chief magistrate determined that the accused was not fit to stand trial.
Dr Addis
Report regarding current charges dated 12 October 2022
Dr Addis, in his written report of 12 October 2022, concluded that by reason of the accused's mental impairment he:
(a)would be unable to instruct his lawyer during the trial;
(b)would be unable to give evidence including making himself available for cross‑examination; and
(c)would not be able to cope with court attendance by reason of his limited capacity to regulation emotion. He would become overwhelmed and confused in the unfamiliar and stressful courtroom environment.
The consequent decompensation of his mental state would render him unable to follow court proceedings or to instruct his lawyer.
Earlier report dated 25 August 2021
Dr Addis' earlier report confirmed the accused's diagnosis and provided further detail regarding the accused. It was however prepared in relation to an unrelated criminal charge.
Dr Addis concluded that the combination of intoxication and the accused's mental disorder were of such a nature that he was not in control of his actions at the time of that relevant incident.
Oral evidence
Dr Addis testified at the fitness hearing. He was the accused's private psychiatrist who diagnosed the accused as suffering from ASD and later confirmed his diagnosis of ADHD.
Summary of evidence of Dr Addis
Dr Addis testified that the combination of the accused's ASD and ADHD meant that the appropriate treatment available to him was more difficult than where there was a single diagnosis. This was because the treatment that might be relevant to the treatment of some aspects of ADHD might make the ASD worse.
He described the relevant consequence of the accused's condition for this application as including the following:
(a)He would find a court room environment extremely difficult as he suffers from acute anxiety and difficulty in regulating his emotions.
(b)He would be overwhelmed by the courtroom environment and may be unable to regulate emotionally due to the circumstances and the stress that he would be under. In a normal courtroom (that is one without any modifications) the accused would be 'unable to regulate emotionally'.[13]
(c)The accused would suffer from the physical space combined with the emotional demands of focusing during the course of a trial.
(d)If the accused was to participate in the trial process from a closed‑circuit TV room then Dr Addis considered that this would ameliorate some of the manifestations of the disorder.
[13] ts 55 (Dr Addis).
In relation to cross-examination the accused would feel overwhelmed and not be able to regulate his emotions and therefore would be unable to think clearly through and respond in a rational way to the questions under cross-examination. He would be unlikely to be able to follow a complex series of questions.
Regular breaks in the proceedings would help ameliorate some of these symptoms but he was unable to determine if it could completely remove them or sufficiently remove them.
Dr Addis considered that there would almost certainly be risks that the accused would answer questions in a manner that did not reflect his actual position.
Dr Addis explained that one of the features of autism is repetitive behaviours and thoughts which usually become worse under stress. There may also be internal preoccupations that might interfere with his capacity to focus and be present in the moment.
There was the possibility that the accused would, by reason of the court environment, decompensate in his mental state such as to be unable to adequately participate in the court proceedings.
Dr Addis described 'decompensation' as being the change in mental state from one of being able to follow and understand simple, straightforward instructions to a mental state where he is not capable of doing that.[14]
[14] ts 58.
Dr Addis confirmed that the accused did not suffer from any intellectual impairment that would affect his ability to comprehend information. The impairment was more focused upon his social interaction and his ability to maintain concentration.
The accused would be able to give simple instructions, but he did not think he would be able to give complex instructions. He would be able to tell his lawyer what had occurred but find it harder while in the courtroom and in the witness box where there was a risk, he would enter into an 'in a world of repetitive or compulsive thinking and at a certain point he's not going to be capable to communicate'.[15]
[15] ts 72 (Dr Addis).
Dr Addis agreed that the factors that would make a difference in the accused's capacity to endure the trial included the following:
(a)regular breaks;
(b)having a support person;
(c)giving evidence from a remote location; and
(d)managing the manner in which he was questioned by others.
In the absence of decompensating, the accused would have the ability to answer questions about an event and there was no evidence of delusional thinking or perceptual abnormalities.
Dr Addis confirmed that there was no impact, by reason of the accused's condition, on his capacity to retain information acquired during the course of the trial. Rather, the question was his capacity to perform in the way that is required during a trial. Further, the accused would have difficulty recalling information if he was in a decompensated state.
There was a very real risk that the accused would decompensate in the trial environment, and this would lead to an exacerbation of the deficits he already has in relation to communication, emotional understanding, dealing with stress and being overwhelmed with stimuli. The nature of the accused's illness meant that no matter what form the trial was going to take there would inevitably be some decompensation of his mental state and the assistance that could be provided may not be sufficient to enable him to perform as required.
Dr Seaburne‑May
The second psychiatrist to be called was Dr Seaburne‑May. He was the psychiatrist appointed by the court to provide an assessment on this accused.
In relation to his interview regarding this matter, Dr Seaburne‑May spent a little less than one hour with the accused which, in the absence of a prior knowledge of the accused, would have seemed to be insufficient time to fully make the appropriate assessment required in this matter.
However, Dr Seaburne‑May had previously interviewed the accused over a two‑hour period and had prepared a report in relation to that on 8 November 2021.
Report regarding current charges
Dr Seaburne‑May confirmed the diagnosis of ASD in the form of Asperger's Syndrome and subsequently ADHD and considered that there was 'clear evidence' to support these diagnoses.
He noted that the accused experienced high levels of anxiety and needed significant levels of care. He considered that his level of cognition was impaired by poor concentration and obsessive thoughts.
The accused's diagnosis fulfilled the criteria of the presence of a 'mental illness or mental impairment' although Dr Seaburne-May failed to specify precisely how he fell within these definitions.
He noted that the accused experienced high levels of anxiety when asked to interact with strangers and opined that it was 'very unlikely that he would be able to cope with a court environment without his anxiety levels impairing his thinking and memory to an unacceptable level'.
He also considered that the accused would not be able to sit still and concentrate for more than an hour and possibly as little as half an hour.
He further took the view that the accused could not properly defend the charge if asked to attend open court (this was later clarified to mean court proceedings in the absence of appropriate modifications).
In conclusion in his report, Dr Seaburne‑May found:
1.The accused suffered with multiple deficits including in concentration and social appropriateness.
2.He would not be able to attend court as his behaviour would be agitated and distracted likely giving a poor impression to the jury and disrupting the process.
3.He would not be able to withstand cross‑examination. A suitably experienced or skilled lawyer would be able to cause Mr Evitt to say things that he does not mean, or the process would cause him such distress as to be impossible.
Oral evidence
The oral evidence of Dr Seaburne‑May was different in some important respects from the conclusions expressed above. This was generally because his findings in his report assumed that the trial would take place without any modifications whereas in his evidence, he was asked to consider whether there were ways the trial process could be adjusted to ameliorate his concerns.
Dr Seaburne‑May confirmed that the accused did have a rudimentary understanding of the purpose of the trial but expressed concern about his capacity to cope with following the course of the trial.
Dr Seaburne‑May considered that it was unlikely that the accused would be able to cope with a regular court environment without his anxiety levels impairing his thinking and memory to an unacceptable level. By unacceptable level he meant 'to the point of procedural fairness'.
This was then further explored, and he stated:
1.the accused could only manage 30 ‑ 60 minutes of proceedings at a time because of his impaired concentration;
2.being the focus of the attention of the court, under inspection, would be extremely challenging for the accused; and
3.the accused's capacity to follow the trial would be better if he could participate in the trial from a remote facility.
Dr Seaburne‑May was particularly concerned about the accused's capacity to give evidence and to withstand cross‑examination. He considered that with the assistance of his lawyer he may be able to manage evidence‑in‑chief although it would be 'extremely anxiety provoking' and that he may struggle to appear coherent. He was concerned that if challenged by even a 'mildly experienced cross‑examiner' that he could be encouraged or easily tripped up to say things 'that are not his own truth'.[16]
[16] ts 93 (Dr Seaburne-May).
He also considered there was a risk that his anxiety would reach levels such that he could not formulate thoughts.
Dr Seaburne‑May considered that there was a very high risk that with an aggressive cross‑examination the accused may say things that were not true. He did consider that questioning in a simpler style that was not aggressive would very much 'reduce the chance of him saying things that he doesn't believe to be true'. He still considered that the question to be determined was whether the accused was going to be able to formulate thoughts given his high levels of anxiety. This was elaborated on in the following way:[17]
When anxiety reaches too high a level, people cease to be coherent, and I think that there's … probably … a coin toss chance that he might become so dysregulated as to be incoherent.
[17] ts 94 (Dr Seaburne-May).
He also expressed the view that the obsessive thoughts that the accused had would become impairing when they were particularly intense. Regular breaks may help him to return to a more regulated normalcy where he would be better able to perform in court.[18]
[18] ts 95.
The accused would be able to follow the proceedings as long as the evidence was not overly complex. The main issue related to his attention span.
Dr Seaburne‑May explained that his assertion in his report that 'I do not believe he would be able to attend court', was a reference to a trial without adjustments. Importantly, he indicated that although there would be a degree of challenge regardless of what adjustments were made, a fair trial could take place if there were sufficient adjustments.[19]
[19] ts 96 (Dr Seaburne-May).
He did however also state that 'I fear that if he becomes agitated and distressed that it might cause a degree of disruption to the court and that might disrupt proceedings and it also might cause a jury to form a poor opinion of him that he might be, … just the kind of person that does dysregulated things'.[20]
[20] ts 96 (Dr Seaburne-May).
Dr Seaburne-May indicated that he considered that it may be that the accused could manage giving evidence and cross‑examination if he was in a separate room and had regular breaks.[21]
[21] ts 97 (Dr Seaburne-May).
In cross-examination, Dr Seaburne‑May indicated that he did not have any concerns about the accused's intelligence insofar as it affected his fitness to stand trial. He considered that the accused would be able to give a good account of what he meant by any text messages and what he understood by them.
The key concerns were the possible impact of the accused's chronic anxiety, his difficulties in interacting with strangers in an unfamiliar environment and his capacity to concentrate that were the key issues for the purposes of his fitness to stand trial. In this respect the doctor considered that the fact that the trial was less complex and may take less time would be matters relevant to the capacity of the accused to be able to endure this criminal trial.
He emphasised that the accused was able to understand the substantial effect of the evidence, had a very clear narrative of how he wished to proceed with the defence and how he could present evidence that would counteract that given by the prosecution. He considered that the accused's level of anxiety and distress which had the capacity to impair him would be considerably reduced if the court had in place measures that would address the issues raised by him in the course of his evidence.
Evidence of Brent Joseph Evitt
Mr Evitt, the father of the accused, provided broader evidence about the nature of the accused's impairment and his treatment and care needs on day‑to‑day basis.
He indicated that the preparation of the accused to be able to attend court for the fitness hearing itself was intensive. He said that when the accused is required to do something he does not want to do it takes days of strategising, planning and co-ordinating to ensure he arrives where he is required.
He confirmed the tendency of the accused to fixate on things and note the accused finds it difficult to leave his home, which is a safe place to be in a different less safe environment to him.
My findings
The nature of the impairment suffered by the accused causes him a high level of anxiety and a difficulty in maintaining concentration, particularly in an unfamiliar environment when amongst strangers. Further, he lacks the capacity to regulate his emotions in the same way a person without such an impairment would be able to do so and he struggles with social interaction and communication.
The way in which the accused behaved and appeared during the course of the fitness hearing was consistent with the evidence from the two psychiatrists and the accused's father. The accused's behaviour was unpredictable, he appeared to struggle with staying calm and he would engage in outbursts that appeared to have no logical cause. Further, he had apparent difficulty in maintaining concentration and was at times permitted by me to play with his mobile phone as a means of assisting him to keep calm and be able to endure the proceedings.
I accept that there is no evidence that he suffered from any intellectual impairment of a level that would prevent him from being able to comprehend non‑complex information. Further, the evidence before me indicates that he is able to provide a comprehensible account of events, retain memories and retain information.
There was also no evidence of any psychotic disturbances, delusional thinking nor perceptual abnormalities.
The parties in their closing submissions both accepted that the real issue in this case was whether the accused had discharged his onus by reason of s 9(e) and/or s 9(g) of the Act. I agree that this is the central issue.
While Dr Seaburne‑May spent less time with Mr Evitt than Dr Addis, given that he was not a treating practitioner, his evidence was more comprehensible and ultimately persuasive than that given by Dr Addis. Dr Addis had difficulties explaining his conclusions and did not seem particularly confident in his understanding of the Act and the trial process. By contrast, Dr Seaburne-May was able to articulate his opinions with clarity and was able to clearly explain the likely differences between a 'regular' trial and an adjusted trial for the accused.
It is clear that the accused would not be able to follow the course of the trial nor properly defend the charge if he was in a decompensated state. Further, regardless of what measures are put in place by the court there is and will remain a real risk that the accused will go into a decompensated state during the course of the trial and possibly from its outset.
The court, however, is not asked to assess degrees of risk or degrees of ability of the accused but rather the Act requires a court to consider whether or not the accused has proved that at the time of the hearing inter alia that he is unable to follow the course of the trial and/or unable to properly defend the charge.
As noted with approval by Buss J in Mack v The State of Western Australia [22], s 11(3) of the Act permits the question of whether an accused is not mentally fit to stand trial to be raised more than once during a trial.[22]
[22] Mack v The State of Western Australia [2014] WASCA 207 [22].
When considering the 'trial' for the purposes of s 9 of the Act I consider that a trial is one that has such modifications that can be readily and lawfully made to the trial process. I am also required to consider how directions can be given to a jury to alleviate what prejudice might otherwise arise by reason of the way the accused may act, speak and physically appear during the course of a jury trial: The State of Western Australia v Mack[23]; Eastman v The Queen.[24]
[23] The State of Western Australia v Mack [2012] WASC 127 [11].
[24] Eastman v The Queen [2000] HCA 29.
The measures that can be taken, in addition to appropriate directions to a jury, can include the following:
(a)the accused can utilise a CCTV room as and when required during the course of the trial including to give evidence; and
(b)regular breaks can be allowed;
(c)shorter court days can be set;
(d) a grounds rule hearing can take place to ensure that the way the trial proceeds is fair to the accused.
I will not factor at this time, nor have I been invited to do so, whether a trial by judge alone would resolve the difficulties as I consider I should approach this on the basis that the accused has a right to a trial by jury.
Unable to follow the course of the trial
I find that the accused has proved that if he is in a decompensated state, he would be unable to follow the course of the trial.
There is a risk that the accused will decompensate during the trial. There are measures that the court can put in place that will reduce that risk. Further, the episodes of decompensation are likely to be transitory.
The accused has not proved that when he is not in a transitory episode of decompensation that he is unable to follow the course of the trial.
The evidence before me raises a very real risk that the accused will get into a state before or during the trial where he will be unable to follow the course of the trial. It is not however for me to speculate as to whether he may at some future point become unable to follow the trial. The question is whether he is, at this time, deprived of that ability.
The evidence does not persuade me that he is presently unable to follow the course of the trial.
Ability to properly defend the charge
I approach this aspect of my assessment on the assumption that to be able to properly defend the charge, the accused must be able to give evidence at his trial should he elect to do so. An accused person who is incapable by reason of their mental impairment to give evidence at their own trial is deprived of a fundamental right that is essential to a fair trial. Every accused person has the right to give evidence in their own defence and this right is meaningless unless they are able to exercise it.
I have also considered this issue having regard to the fact that there are adjustments that can be made to the trial process.
I find that the accused has proved that if he is in a decompensated state he will be unable to properly defend the charge.
The accused has not proved that when he is not in a decompensated state that he is unable to properly defend the charge.
There is however a real risk that by reason of his impairment and notwithstanding the adjustments that can be made to the trial process that the accused may deteriorate before or during the course of the trial such that he will become unable to properly defend the charge. If this was to occur, a further application pursuant to s 11 of the Act can be made.
The evidence does not persuade me that he is presently unable to properly defend the charge.
Conclusion and orders
The accused is fit for trial.
The accused is permitted, should he choose to do so, to attend the trial by video link.
This matter should be listed for a grounds rule hearing once the trial is listed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
Judicial Support Officer
2 DECEMBER 2022
0
10
2