The State of Western Australia v Forde - [2019] WADC 158

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- FORDE [2019] WADC 158
CORAM:   PETRUSA DCJ
HEARD:   17-18 OCTOBER & 8 NOVEMBER 2019
DELIVERED          :   22 NOVEMBER 2019
FILE NO/S:   IND 2272 of 2016
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
DOUG FORDE

Catchwords:

Criminal procedure - Fitness to stand trial - Mental impairment retrograde amnesia - Meaning of 'unable to properly defend the charge'

Legislation:

Criminal Code (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)

Result:

Declaration that accused unfit to stand trial and will not be mentally fit to stand trial within six months
That the indictment dated 10 March 2017 is quashed
Order for release of the accused

Representation:

Counsel:

The State of Western Australia	:	Mr J Mactaggart
Accused	:	Ms G M Cleary

Solicitors:

The State of Western Australia	:	Office of the Director of Public Prosecutions
Accused	:	Abigail Rogers Barristers & Solicitors

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

Goodwyn v The State of Western Australia (2013) 45 WAR 328
Liyanage v The State of Western Australia [2017] WASCA 112
Pollock v Wellington (1996) 15 WAR 1
Slater v The Queen [2004] WASCA 151
Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95
The State of Western Australia v Herbert [2017] WASC 101

PETRUSA DCJ:

There is before the court an indictment charging the accused with an offence of GBH with intent. The offence is alleged to have occurred on 20 February 2016. On 7 April 2017 the matter was listed for a trial commencing on 4 September 2017.
On 6 May 2017 the accused had a motorbike accident during which he suffered extensive injuries, including a traumatic brain injury (TBI). The accused now claims he has amnesia for a period of time before the accident that includes 20 February 2016 and is therefore unfit to stand trial, because he is unable to properly defend the charge.[1]
[1] Section 9(g) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act).
On the issue of whether the accused is fit to stand trial there are three issues:
(1)Is the accused mentally fit to stand trial?
(2)If so, will the accused become mentally fit within the next six months?
(3)If the court is satisfied as to issues (1) and (2), whether in addition to quashing the indictment the court should make an order releasing the accused or make a custody order.

Is the accused mentally fit to stand trial?

The law

The first issue to consider is whether the accused is mentally fit to stand trial. The test of whether a person is mentally fit to stand trial is set out in s 9 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (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;
(b)unable to understand the requirement to plead to the charge or the effect of a plea;
(c)unable to understand the purpose of a trial;
(d)unable to understand or exercise the right to challenge jurors;
(e)unable to follow the course of the trial;
(f)unable to understand the substantial effect of evidence presented by the prosecution in the trial; or
(g)unable to properly defend the charge.
A mental impairment is defined in s 8 of the Act as being an intellectual disability, mental illness, brain damage or senility.
An accused person is presumed to be mentally fit to stand trial until the contrary is found.[2]
[2] Section 10(1) of the Act.
The question of whether the accused is not mentally fit to stand trial is decided on the balance of probabilities, after the court enquires into the question and informs itself in any way the court thinks fit.[3]
[3] Section 2(1) of the Act.
There have been a number of reports received in relation to the question of the accused's mental impairment and whether he is mentally unfit to stand trial, namely:
(1)Report of Dr C M Hargate, registered clinical neuropsychologist dated 4 December 2017 (commissioned by the Insurance Commission of WA).
(2)Report of Dr Victoria Pascu, consultant forensic psychiatrist dated 24 April 2018 (commissioned by the accused's lawyer).
(3)Further report of Dr Victoria Pascu dated 9 April 2019 (commissioned by the accused's lawyer).
(4)Further report of Dr C M Hargate dated 23 June 2019 (commissioned by the accused's lawyer).
(5)Discharge summary from Royal Perth Hospital dated 13 June 2017.
(6)Medical imaging report from the Royal Perth Hospital under the hand of Dr Victor Wycoco with addendum created on 10 June 2019.
The issue of the accused's fitness to stand trial will require resolution of four questions:
(1)Does the accused have a TBI that amounts to a mental impairment?
(2)If so, does the accused, by reason of his TBI, suffer retrograde amnesia?
(3)If so, am I satisfied on the balance of probabilities that the accused has no memory of the events of 20 February 2016?
(4)If so, does the accused suffer from any one of the incapacities listed in s 9 of the Act?

Does the accused have a TBI that amounts to a mental impairment?

It is conceded that on 6 May 2017 the accused was involved in a motorbike accident and suffered a TBI. As a result of this single vehicle accident the accused was taken to the intensive care unit where he was intubated and ventilated.
On examination he was found to be intoxicated and had a bruised face with a forehead laceration and various bodily injuries including multiple facial bone fractures to the left sphenoid bone, left temporal bone, maxillary alveolus, left petrous bone bilaterally extending into the inner ear, right petrous bone, left orbital roof and pubic rami and cervical spine. The accused also had closed fractures to the left zygomatic arch, phalanx of the right ring finger and distal phalanx of the left middle finger. He had sustained a trauma to his left optic nerve.[4]
[4] Discharge summary Royal Perth Hospital and report of Dr Hargate dated 23 June 2019, par 4.3.
A CT head scan conducted on 6 May 2017 found intraparenchymal haemorrhage in the left temporal lobe, subarachnoid haemorrhage in the frontal lobe and basal cisterns bilaterally. A left frontal lobe subdural hematoma was seen with adjacent pneumoperitoneum. The left cerebral sulci were effaced and left lateral ventricle compression with uncal herniation.[5]
[5] Report of Dr Hargate dated 23 June 2019, par 4.4.
A further CT head scan conducted on 8 May 2017 confirmed these findings and the development of some additional cerebral swelling and hypo attenuation in the left cerebral hemisphere.[6]
[6] Report of Dr Hargate dated 23 June 2019, par 4.5.
His traumatic brain injury was managed non‑operatively.
Mr Forde was subsequently transferred to the Fiona Stanley Hospital on 13 June 2017 where he was provided with ongoing multi‑disciplinary care and rehabilitation. He received assessment and input from medical and nursing professionals, occupational therapy, speech pathology, dietetics, audiology and physiotherapy.
He was eventually released after a period of 50 days. Both Dr Pascu and Dr Hargate accept that the accused's traumatic brain injury is consistent with being extremely severe.[7]
[7] Report of Dr Hargate dated 4 December 2017, page 3; Report of Dr Pascu dated 24 April 2018, par 24.
An MRI head scan was conducted on 10 December 2018. The results of this, including a review of the scans undertaken on 10 June 2019, are as follows:[8]
[8] Royal Perth Hospital Medical Imaging Report with addendum created by Dr Victor Wycoco on 10 June 2019.
FINDINGS
There is post-traumatic encephalomalacia in the left frontal and temporal lobe. Ex vacuo dilatation left lateral ventricle …
COMMENT: Post-traumatic encephalomalacia left frontal, temporal and cerebellar.
Addendum
Cystic encephalomalacia involves the left inferior frontal lobe, anterior and medial left temporal lobe and left cerebellum. Specifically there is cortical thinning and gliosis in the left entorhinal cortex and anterior temporal pole. There is mild to moderate volume loss in the head and body of the left hippocampus with moderate to severe volume loss in the left amygdala. There is similar volume loss in the left head of caudate and left lentiform nucleus, and to a lesser extent the left thalamus
Moderate ex vacuo dilatation of the frontal and temporal horns of the left lateral ventricle.
Dr Hargate first saw Mr Forde at the request of the Insurance Commission of Western Australia. He saw him for the purposes of determining his cognitive and neuropsychological capacity to return to some form of work as well as driving a C class motor vehicle. He administered a large number of tests and made the following conclusions:[9]
3.... performance was below average on tests of verbal reasoning, temporal judgment, and tests requiring visual scanning with sequencing. Additionally, performance was well below average on tests of 2D construction and the self-monitoring of errors on tests of response, inhibition and verbal learning.
4.Very significant difficulties however, were also found on aspects of verbal memory and learning. Primary verbal memory (retention and recognition) was in the average range showing intact mesial temporal lobe function. However, overall verbal learning was well below average and the immediate and delayed recall of meaningful information was extremely low. Together, these represent a pattern of significant amnestic deficits secondary to executive function.
5.The current overall pattern of cognitive deficits is indicative of organic brain pathology predominately affecting the frontal lobes of the brain and the dominant (left) hemisphere. These neuropsychological findings are entirely consistent with the neuro radiological findings conducted around the time of the MBA.
[9] Report of Dr Hargate dated 4 December 2017, page 9.
Dr Pascu in her report of 24 April 2018[10] refers to the neuropsychological testing documented by Dr Hargate in his report of 4 December 2017 and accepts that the,
overall pattern of cognitive deficits [is] in keeping with the organic brain pathology predominantly affecting the frontal lobes of the brain responsible for high functioning executive decision making more so the left dominant side of the brain … consistent with the radiological findings conducted around the time of the accident.
[10] Report of Dr Pascu dated 24 April 2018, par 27.
Dr Pascu's psychiatric diagnosis using the International Classification of Disease and Health Related Problems, the ICD‑10 was that the accused had traumatic (acquired) brain injury mainly frontal lobe damage with evidence of retrograde and some anterograde amnesia.[11]
[11] Report of Dr Pascu dated 24 April 2018, par 49.
In June 2019 Dr Hargate again assessed the accused. This assessment took nine hours (over three appointments) and involved the administration of a number of formal standardised tests covering a range of cognitive functions. As a result of these tests, the clinical assessments he made and the review of materials he had been given (including the CT and MRI scan results) he confirmed (and consolidated) his earlier findings that there was evidence of significant organic impairment precipitated by the TBI.
In his view the CT and MRI scans found pathology in the main brain structures.[12] He made the following conclusions:
[12] Report of Dr Hargate dated 23 June 2019, par 13.7.
Subcortical frontal impairments
11.5Mr Forde's performance on standardised cognitive tests indicates he is currently experiencing significant cognitive slowing coupled with deficits in some frontal and executive functions. As with most cognitive disorders involving the frontal lobes, deficits were not found in all of the frontal/executive functions. Instead we see the typical pattern of 'patchy' executive function insofar as some frontal functions are intact, whilst others are impaired. These findings represent a subcortico-frontal pattern of impairments indicative of organic dysfunction in the deep white matter of the brain associated with dysfunction of the frontal lobes of the brain and/or disruption to the brain's frontal systems.
11.6Mr Forde's cognitive slowing and frontal/executive dysfunction are entirely consistent with the findings on his CT Head scans of 06 and 08/05/2017 (Paragraphs 4.4 and 4.5), and his MRI Head scan of 10/12/2018 (Paragraph 4.12). All of these scans found significant pathology subcortically and in the frontal lobes bilaterally. Cognitive slowing and frontal/executive dysfunction are also consistent with the pathology in the cerebellar that was also visualised on the second of these CT scans.
Anterograde amnesia
11.7In addition to cognitive slowing and frontal/executive dysfunction, Mr Forde was also found to have significant Anterograde Amnesia (AA) on cognitive testing. AA refers to a difficulty forming new memories after the onset of an injury or disease, and so it can be measured precisely by giving examinees information and measuring its recall in standardised memory tests.
11.8The presence of AA, in Mr Forde's case, is entirely consistent with the findings of his CT Head scans. The CT Head scan of 08/05/2017 (Paragraph 4.5) noted a haemorrhage measuring 19 x 21 x 18 mm in the 'mesial aspect of the left temporal lobe'. The mesial temporal lobes are the parts of the human brain that are most closely and centrally associated with human memory function.
11.9In terms of the patterning of AA, Mr Forde is showing significant deficits in verbal memory, but none in visual memory. Given Mr Forde is a right‑handed gentleman, the left hemisphere of his brain is responsible for verbal abilities and his right hemisphere is most centrally associated with his visual abilities. Accordingly, Mr Forde's pattern of memory deficits in the verbal (but not visual) modality, is indicative of organic pathology in the (dominant) left hemisphere of the brain, but not in the right hemisphere. Again, this is entirely consistent with the findings on Mr Forde's CT and MRI Head scans (Paragraphs 4.4, 4.5 and 4.12) all of which found organic pathology predominantly in the left hemisphere of the brain, including left mesial temporal lobe. No pathology is noted in the right temporal lobe. It is also notable that the presence of verbal (but not visual) memory deficits is precisely what Ms Sewall, OT, found in her assessment in October 2017 (Paragraph 4.14), and which I found in my first neuropsychological assessment in December 2017 (Paragraph 4.18).
In Dr Hargate's opinion the accused met the DSM‑V criteria for Major Neurocognitive Disorder due to traumatic brain injury without Behavioural Disturbance. In other words he had a neurocognitive disorder due to brain damage.[13]
[13] Report of Dr Hargate dated 23 June 2019, par 13.8.
The radiological evidence in combination with the neuropsychological testing, as supported by the opinions of both Dr Pascu and Dr Hargate, persuade me that the accused has a brain injury such that he suffers from a 'mental impairment'.

Does the accused, by reason of his TBI, suffer retrograde amnesia?

It is submitted, and the accused has told the various authors of the reports, that he has no memory of events for a period of time before the accident.
The accused gave some limited evidence in this matter wherein he confirmed what he had said about his inability to remember the events the subject of the charge. I will deal with this more fully later in these reasons. He did not give evidence confirming the answers he had given to the questions asked by the experts about his memories were correct.
The accused's answers to questions regarding his memory of past events generally is, however, one of the matters that forms the foundation for the opinions expressed by the experts. Given that the accused has not adopted what he told the experts as truthful, the evidence of what the accused said out of court cannot be used to prove the truth of what he said, unless it is admissible as an exception to the hearsay rule.[14]
[14] Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J).
Her Honour Justice Jenkins considered this issue in The State of Western Australia v Herbert [2017] WASC 101. At [20] – [21] her Honour said:
There is an exception to the hearsay rule for statements made by a person about his bodily (including mental) feelings and symptoms contemporaneously to the time when his state of health is in question. The following statement of the exception in Wills on Evidence (3^rd ed, 1938) 209 was approved in Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642:
Whenever there is an issue as to some person's state of health at a particular time, the statements of such person at that time or soon afterwards with regard to his bodily feelings and symptoms are admissible in evidence. This medium of proof does not appear, like most of those which are known as Declarations, to possess any special sanction of credibility; like declarations accompanying acts it would seem to have been admitted on the ground of necessity and convenience (647).
Thus, the accused's statements to medical professionals, whether they be treating doctors and nurses or the two psychiatric expert witnesses, as to his feelings and symptoms at the time he spoke are admissible to prove his feelings and symptoms at that time.
For these same reasons I accept that the experts could have regard to the statements made by the accused about the current state of his memory.
Irrespective of this, there is evidence to support a claim of retrograde amnesia to be found in the report of Dr Hargate dated 23 June 2019. It was one of the specific matters Dr Hargate was asked to consider.
Before considering Dr Hargate's report I will briefly deal with the reports provided by Dr Pascu. Whilst Dr Pascu's reports include opinions regarding the presence of retrograde amnesia she has not, in my view, sufficiently exposed her reasoning nor made (or if made not documented) any efforts to test the nature, quality and veracity of the accused's claim of retrograde amnesia. Accordingly, on the issue of retrograde amnesia I put her reports to one side.
Dr Hargate's assessment of the accused's condition including the claim of retrograde amnesia involved four aspects:
(1)Review of the accused's medical records.
(2)Clinical interview involving questioning about his personal background history and comparing this with corroborative information.
(3)Administering a number of formal standardised tests covering a range of cognitive functions including four formal standardised tests specifically designed to test effort/malingering.
(4)Consideration of literature regarding retrograde amnesia.
The net effect of Dr Hargate's assessment is that he formed the opinion that the accused suffers from retrograde amnesia for a period of four to five years (which I take to be from the date of the assessment in 2019).
I turn to consider the aspects of the opinion given by Dr Hargate that do not rely on the statements made by the accused.
First, it is significant that Dr Hargate made diagnoses of both anterograde amnesia and retrograde amnesia because it has long been recognised that they tend to occur together.[15]
[15] Report of Dr Hargate dated 23 June 2019, par 11.11.
Next is it significant that Dr Hargate found that the accused not only reported difficulties recalling personal life experiences (episodic memory), but the cognitive testing showed poor general knowledge (longer‑term semantic memory) with a score well below average. This is consistent with the research that indicates retrograde amnesia can include both episodic and semantic memory.[16] Some caution must, however, be exercised in this regard because the accused had an impoverished education leaving school at age 14 or 15 having truanted regularly before this.[17]
[16] Report of Dr Hargate dated 23 June 2019, par 11.12.
[17] Report of Dr Hargate dated 23 June 2019.

Thirdly, and importantly, Dr Hargate's review of the literature revealed that:[18]
Research has found that in RA, the most commonly affected areas of the brain are they hippocampus (Cipolotti et al., 2001) in the temporal lobes (Buccione et al., 2008), as well as the diencephalon, which includes the thalamus (Dusoir et al., 1990; Jelicic, 2018). Damage to the entorhinal cortex can also cause severe memory impairment (Zola‑Morgan et al., 1989) and research has found that the caudate and lentiform nuclei play a vital role in learning, including the storing and processing of memories (Seger and Cincotta, 2005).
[18] Report of Dr Hargate dated 23 June 2019, par 11.16.
In the accused's case the MRI imaging found brain damage, inter alia, in the left mesial temporal lobes, hippocampus, entorhinal cortex, caudate nucleus, thalamus and lentiform nucleus. There is then damage to most of the structures known to be associated with retrograde amnesia.
Further, there is a correlation between the extent of the brain damage and the degree of retrograde amnesia that can be expected. To this end Dr Hargate says:[19]
Moreover, in relation to RA in particular, the findings of Squire and Alvarez (1995) indicate that the density of RA becomes more severe and longer-term as the damage extends beyond the hippocampus and various other surrounding brain structures. Given Mr Forde's MRI Brain scan included the hippocampus and various other surrounding brain structures, a significant degree of RA could be expected.
[19] Report of Dr Hargate dated 23 June 2019, par 11.21.
Given these matters I am satisfied on the balance of probabilities that the accused is suffering retrograde amnesia.

Does the accused have any memory of the events of 20 February 2016?

A feature of the accused's retrograde amnesia reported by Dr Hargate and based on his clinical assessment of the accused, was that he had greater difficulty recalling events that occurred in the last four or five years or so.[20] This was consistent with the nature of the accused's organic brain injuries and with the patterns found in amnesic patients that had been studied and researched.[21]
[20] Report of Dr Hargate dated 23 June 2019, par 11.13.
[21] Report of Dr Hargate dated 23 June 2019, par 11.23.
Dr Hargate's opinion does not mean that the accused has no memories of events during this time period. To the contrary the accused has at the very least, said he recalls being in custody before the accident.
In evidence, Christine Forde, the accused's mother was asked about this:[22]
Okay. And what about things that happened immediately before the accident? ‑ ‑ ‑ Immediately? He remembers being in gaol but he doesn't remember coming out of gaol.
So he remembers being in gaol? ‑ ‑ ‑ Yeah.
[22] ts 138.
Her evidence is consistent with other references in the various expert reports of statements made by the accused about his pre-accident memories. In particular Dr Hargate reports that, the accused remembered being in gaol, albeit he said his memory was patchy with him recalling that he wore overalls when having visitors and otherwise wore shorts and a t-shirt. He also recalled that Ben Cousins was his cellmate.[23]
[23] Report of Dr Hargate dated 23 June 2019, par 7.3.
Dr Hargate also reports that the accused said he better recalled the crime that led to him being incarcerated. This involved him using his bobcat to dig a hole and bury a sea container before building a shed over it. He also recalled he was discovered when someone in his extended family informed police.[24]
[24] Report of Dr Hargate dated 23 June 2019, par 7.4.
It was for this reason that the accused gave evidence before me about his recollections. In evidence he denied having any recollection of the events giving rise to the charge. He claimed he did not know nor had he any knowledge of Mr Boyd, Mr O'Dowd or the house at 1060 Thomas Road, Casuarina. When answering these questions I did not find the accused to be convincing. He was off‑hand and resentful. He answered the questions automatically without giving them any apparent consideration.
He did, however, admit to having memories relating to the cannabis charge he faced before the accident.
In his evidence before me he recalled matters that he had not previously disclosed. These matters included:
(1)That he had been given the hydroponic equipment used to grow the cannabis.
(2)That he had commenced growing the cannabis about three months before it was discovered.
(3)That this was his first crop.
(4)That he did not make any money from the enterprise.
Mr Forde also said he had been 'done with the maximum amount'[25] though this may not be a memory, but rather information garnered from a news report of his arrest that he claimed to have on his phone.
[25] ts 222.
Nonetheless I was left with the impression that the accused's memory is more extensive than he may be prepared to admit. It also appeared to me that the accused was more forthcoming when inquiries (as opposed to questions) were made about matters.
Further the fact that the accused can recall better matters closer to the time of the accident does seem somewhat incongruent; the memories of the charged events were, after all, laid down 14 months before the accident, whilst those relating to the cannabis and the associated period in custody were no more than about three months old.
In this regard Dr Hargate[26] makes this observation:
… in terms of RA, research has indicated that individuals differ in the extent to which they recover. Depending on the severity of its cause, in some cases RA it may be permanent or it may be temporary with some people recovering most memories … In particular, the events nearest to the event that caused the memory loss may never be recovered (Kopelman, 2007). This is because the neural pathways of newer memories are not as strong as older one that have been strengthened by years of retrieval and re-consideration.
[26] Report of Dr Hargate dated 23 June 2019, par 12.3.
These matters do raise concerns in my mind about the state of the accused's memory of the charged events. However, I am ultimately persuaded, on the balance of probabilities that the accused does not recall the events the subject of the charge. I have come to this conclusion as a result of a combination of factors namely:
(1)There is no doubt that the brain injury exists and relates to a number of areas of the brain associated with retrograde memory.
(2)The extent of the damage is such that memories of the charged events are capable of being affected.
(3)The accused's presentation before me may not accurately reflect his effort to remember given that he has been asked questions about his memory of the charged events by the various experts, his lawyers and his family.
(4)I accept that the vagaries of retrograde amnesia do not lend themselves to any strict rules.

Does the accused suffer from any one of the incapacities listed in s 9 of the Act?

The question now is whether the amnesia of the events, that has been caused by reason of his brain damage, gives rise to any of the incapacities in s 9 of the Act.
It is accepted that the only capacity on which Mr Forde could be found to be unfit to stand trial is that by reason of his mental impairment he is unable to properly defend the charge. That is, he comes within s 9(g) of the Act.
Neither I nor counsel have been able to find any authority where the meaning of s 9(g) has been specifically considered. No cases were found involving a mental impairment that only gave rise to an incapacity under s 9(g) that the applicant was 'unable to properly defend the charge'.
The question then is what is meant by the phrase 'unable to properly defend the charge'.
First, s 9(g) must refer to something more than the incapacities listed in the other subsections of s 9 of the Act or it would be unnecessary.
Second, it must be acknowledged that a case may be defended simply by putting the prosecution to proof. This can and does occur. For example where an accused has little or no memory (perhaps because of alcohol intoxication) of alleged criminal conduct the case is defended by putting the State to proof. There is no issue taken nor could any be taken in such cases that the matter could not be defended.[27]
[27] An accused in this type of case could not in any event rely on the provision of the Act as their lack of memory relates to the time of the alleged conduct not the time of trial.
Section 9(g), however, refers to an accused's capacity to 'properly' defend the charge. The inclusion of the word 'properly' must include a consideration of the particular facts of the case at hand. To find otherwise would mean that the word 'properly' would have no work to do.
If an accused, were by reason of their mental impairment, deprived of the ability to raise a defence or to put a positive defence they may be 'unable to properly defend the charge'. This determination must involve an evaluation of the case, what can be ascertained about the accused's version of events and the impact of the accused's mental impairment on the course of any trial.
In this case there is material to suggest that the accused intended to raise self‑defence.
First, there is in the prosecution brief a statement from Michelle Eades, the accused's then girlfriend. In that statement Ms Eades says that on the night of these events she was with the accused at his house. She describes how the accused left the house to buy cigarettes and returned about 40 minutes later looking 'quite shook up'. She then says this,[28]
I asked where he had been and he said he had gone to see Michael again.
He said there was about six other guys there and Michael and Shane came at him with golf clubs and a baseball bat.
He said he went to get out of the car and before he could even close the door, he got whacked with a baseball bat.
Doug had a visible injury to his arm.
[28] Prosecution brief, page 27.
Next, Dr Pascu in her report of 24 April 2018, records the following,[29]
Mr Forde's mother added 'this happened in February 2016; I remember that what Doug told me back then was that he went to that man's house, he used to be Michelle's partner; Doug apparently went to the house to take her computer back and he said to me he found the machete on the ground; he said there was a scuffle and he got apparently mobbed by a few people at the house; he then picked up the machete and cut the fingers of someone; that's what I recall from what Doug told me; he went to court after that and got bail'.
[29] Report of Dr Pascu dated 24 April 2018, par 8.
These two hearsay statements suggest that the accused may well have sought to contend that he was acting in self‑defence.
This is confirmed by the affidavit of Abigail Sian Rogers, the accused's solicitor. Ms Rogers has acted for the accused since before the matter was committed to this court. Ms Rogers deposes to the fact that the accused waives legal professional privilege in regard to the instructions she had prior to the accident. Whilst those instructions did not include a written proof of evidence they did include information about the circumstances of the offence. The accused instructed that he had gone to the complainant's house to speak with him. When he arrived at the house, the complainant and another came towards him armed with a baseball bat and golf club respectively. He picked up a length of metal that was on the ground near his car. He blindly swung it at the complainant after the complainant hit him on the arm with the baseball bat. As he swung the length of metal he was trying to get back into his car. One of his car tyres was slashed as he tried to leave.
These instructions raise the defence of self‑defence. This is consistent with the fact that at the trial listing hearing on 7 April 2017 the matter was listed for trial.
The question then, is whether the accused is still able to raise the defence given his memory deficits.
In relation to self‑defence, it must be borne in mind that the accused need not prove that he was acting in self‑defence but rather, having satisfied the evidentiary onus, it is for the State to prove that he was not acting in self‑defence.[30]
[30] Liyanage v The State of Western Australia[2017] WASCA 112 [68].
The first question then is whether the accused is capable of satisfying the evidentiary onus based on the material available in the State brief.
It is clear that the statement made by Mr Forde's mother to Dr Pascu is not admissible. There is no statement from her. However, the same cannot be said of the statements by Michelle Eades. The statement made by her is a mixed statement. It includes a statement against interest by Mr Forde, namely that he had been at the complainant's house that evening and that there had been an altercation, together with exculpatory material (he was attacked). Given that it is a mixed statement, the State would be obliged to lead the entirety of the statement and, it would be a matter for the jury what weight they gave to any aspect of the evidence including any exculpatory matters.[31]
[31] Slater v The Queen[2004] WASCA 151 [83].
It would be open to Mr Forde to point to the evidence of Ms Eades to satisfy the evidential onus for self‑defence.[32] Ms Eades' evidence does not include any information about the accused using any force let alone any details about the circumstances in which he may have used force. I therefore have some reservations about whether it would be sufficient to raise the evidential onus but will proceed on the basis that it can.
[32] Taiapa v The Queen[2009] HCA 53; (2009) 240 CLR 95 [5].
If this evidence by Ms Eades is sufficient to raise the evidential onus then it is for the State to prove that the accused was not acting in self‑defence. The State may do this by proving beyond a reasonable doubt, any one of the following:
(1)The accused subjectively believed the harmful act was necessary to defend the accused or another person from a harmful act, including a harmful act that is not even imminent.
(2)The accused's harmful act is an objectively reasonable response by the accused to the circumstances as the accused subjectively believes them to be: s 248(4)(b) of the Criminal Code.
(3)There are objectively reasonable grounds for the accused's subjective belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent: s 248(4)(a) read with s 248(4)(c) of the Criminal Code.
(4)There are objectively reasonable grounds for the accused's belief as to the circumstances: s 248(4)(b) read together with s 248(4)(c) of the Criminal Code.[33]
[33] Goodwyn v The State of Western Australia(2013) 45 WAR 328 [95] - [96].
At any trial where the accused did not give evidence, the only material before the jury as to how the injuries to the complainant were sustained would come from the State witnesses. None of these, including the evidence of Ms Eades, provides any evidence, let alone detail, of how the accused may have come to cause any injuries to the complainant or why he may have acted so as to cause any injury. The accused did not give an interview with police.
In the circumstances of this case only the accused could give evidence about if, and how he came to be armed, how he may have come to inflict the injuries and what his state of mind was at the time he acted so as to cause any injury.
At the very least then, absent any evidence from Mr Forde, there is no evidence that could be put before the jury as to the accused's subjective belief that the harmful act, in this case, the swinging of a weapon at Mr Boyd, was necessary to defend himself from a harmful act, in this case, being attacked by people armed with a golf club and a baseball bat.
The accused is then by reason of his memory loss, deprived of the capacity to give evidence vital to his defence including evidence of his subjective belief.
I am satisfied on the balance of probabilities that the accused could not, absent the giving of evidence, properly defend this charge because he could not at the very least put evidence as to his subjective belief about the need to defend himself in circumstances where the defence of self‑defence was likely to be relied on by him. Given that he is unable to do this as a result of memory loss caused by a mental impairment, I am satisfied on the balance of probabilities that the accused is not fit to stand trial.
Having come to this conclusion I must now consider whether the accused will become mentally fit to stand trial within six months?

Will the accused become mentally fit within six months?

The unanimous expert opinion is that the accused will have reached maximum improvement within two years of the traumatic brain injury.[34]
[34] Report of Dr Hargate dated 23 June 2019, par 12.2.
Given that it has been nearly two years six months since the motorbike accident that caused the TBI, I am satisfied on the balance of probabilities that the accused will not become mentally fit to stand trial within six months. Accordingly, an order that the indictment be quashed will be made.
I must now consider whether, in addition to making an order quashing the indictment, I should order that the accused be released or make a custody order.

Release or custody order

It is open for me to consider a custody order because the maximum penalty for the offence of grievous bodily harm with intent is 20 years imprisonment. However, s 19(5) of the Act provides that I must not make a custody order unless I am satisfied that a custody order is appropriate having regard to:
(a)the strength of the evidence against the accused;
(b)the nature of the alleged offence and the alleged circumstances of its commission;
(c)the accused's character, antecedence, age, health and mental condition; and
(d)the public interest.
I turn to consider each of these matters.

Strength of the evidence

The case on the face of the State brief relies on the evidence of the complainant Mr Boyd and the eye witness Mr O'Dowd. They are the only witnesses that give evidence about the events of 20 February 2016. Accordingly, their credibility is central to the State case. Apart from some collateral matters there is nothing on the State brief to suggest that they are not credible witnesses who would not be believed.
In addition, their evidence on a number of factual matters, does not appear to be in issue. These matters include the following:
(1)Mr Boyd and Ms Eades had been in a romantic relationship that had ended sometime prior to 20 February 2016 (confirmed by Ms Eades).
(2)Despite the ending of the romantic relationship there had been ongoing contact between Mr Boyd and Ms Eades (confirmed by Ms Eades).
(3)The accused was intent on having at least a verbal confrontation with Mr Boyd about his ongoing contact with Ms Eades (confirmed by Ms Eades and Mr O'Dowd).
(4)For this reason, the accused had on three occasions visited Mr O'Dowd's house, where Mr Boyd was then living (confirmed by Ms Eades).
(5)On 16 February 2016 the accused attended Mr O'Dowd's house with Ms Eades and was told Mr Boyd was not home and to leave (confirmed by Ms Eades).
(6)On 18 February 2016 the accused in company with others, attended Mr O'Dowd's home seeking Mr Boyd who was not there (confirmed by Ms Eades and consistent with telephone messages).
(7)During this attendance the accused took possession of Mr O'Dowd's mobile phone and of laptops belonging to Mr Boyd (Ms Eades returns these items to police after 20 February 2016).
(8)On the night of 20 February 2016 the accused again attended Mr O'Dowd's house to confront Mr Boyd (confirmed by Ms Eades).
(9)There was a physical altercation involving the accused and Mr Boyd during which Mr Boyd suffered injuries that amounted to grievous bodily harm (confirmed by Ms Eades and Dr Martins).

Significantly these show that the elements of grievous bodily harm and identification are not seemingly in issue.
The State case is then, a strong one and the defence concede this.
For completeness, I should add that whilst I am not able to fully evaluate any defence of self‑defence there are aspects of the evidence that indicate the State could successfully negate it. To this end I make the following observations:
(1)The accused was determined to have a confrontation with Mr Boyd given the repeated visits to his home.
(2)On the second occasion that the accused attended Mr Boyd's home he felt the need to bring a number of other men with him and when he was not able to see Mr Boyd he took his property.
(3)On the night of the offence the accused did not tell Ms Eades of his intentions to visit Mr Boyd and instead said he was going out for cigarettes.
(4)The accused did not feel the need to bring others with him when he attended Mr Boyd's home for the third time arguably because he was armed.
(5)It is inherently unlikely that:
(a)there would have been an object that could be used as a weapon near to the car such that he could use it; and
(b)given it was night time that he would have seen any object nearby.
(6)The injuries described by the doctor appear to be more consistent with a sharp force injury particularly given they are described as 'lacerations' or at least are not consistent with a blow from a length of metal.
(7)The injury described by Ms Eades and by the accused's lawyer is consistent with Mr O'Dowd's evidence that he swung a golf club at the two men albeit he does not believe he struck anyone.

Nature of the offence and the alleged circumstances

On any assessment this is a very serious case involving the use of a weapon to cause serious and significant harm to another. It was a pre‑meditated attack that was the culmination of repeated attempts by the accused to locate and confront Mr Boyd.
The accused had persistently sought out Mr Boyd intent on a confrontation. On the State case, he wanted to punish Mr Boyd because he believed he had hacked Ms Eades' Facebook account and posted material that suggested she was communicating in a sexually provocative way with a former student. There was no evidential basis for this belief.
The injuries suffered by Mr Boyd were very serious and, absent medical treatment, were likely to cause a permanent injury to health, namely left ulnar nerve injury, an inability to extend the right, middle and index fingers, reduced movement of the left elbow and chronic pain.

The accused's character, antecedents, age, health and mental condition

The accused was born on 17 February 1988 and so was at the time of the alleged offence, 28 years old. He is now 31 years old.
He has a criminal record of some substance. He has a number of convictions for traffic related matters and for possession and cultivation of cannabis and other drug related charges. There are in fact a number of drug related charges that the accused committed whilst on bail for this alleged offending.
In addition, he has two prior convictions for violence. One for an offence of aggravated unlawful wounding that occurred on 14 September 2008 and the second for a charge of grievous bodily harm that was committed on 14 April 2012. Both offences were committed against the accused's older brother.
In relation to the wounding offence, the accused, who was then aged 20, got into a verbal argument with his brother at a party. They had both been drinking and were drunk. During the argument, the accused was holding a glass containing spirits. He pushed the glass forward, breaking it and causing numerous cuts to his brother's face. Having done this he proceeded to punch his brother in the head until they went to the ground. They were separated by others. As a result of this the accused was placed on a 12 month intensive supervision order.
The grievous bodily harm offence occurred when the accused was 24 years old. This offence also occurred at a party when both brothers had been drinking and were drunk. They became involved in a verbal argument. During this, the accused struck his brother in the left side of the face with his fist, causing him to fall to the ground. He then straddled him and struck him a further four times to the face before people intervened and separated them. As a result, the accused's brother received a fractured nose and multiple fractures to his cheek bones that required surgery. The accused was sentenced to 15 months' imprisonment conditionally suspended for 12 months. He breached this term by driving with a blood alcohol in excess of .05% and was fined.
Accordingly, it is clear that resorting to violence to resolve disputes is not new to the accused.
Further, and consistent with this, is that the various reports describe a history involving multiple suspensions culminating in expulsion from school as a result of fighting.
He has experienced problems with hyperactivity and difficulties with attention and concentration.
After being expelled from school, he began working in labouring positions for a number of years until at age 17 he began work in the area of plastering. He subsequently commenced his own plastering business that he ran until his incarceration and motorbike accident. He has not worked since that time.
He has had a number of long‑term relationships. The most recent with Ms Eades. That relationship ended about 12 months ago.
The accused currently resides in his own home with his mother. His mother has lived with the accused for many years. Her cohabitation predates the accident.
He has a long history of substance use commencing at an early age. He has predominantly used cannabis and later alcohol. He continues to use both, though the level of his alcohol use is reduced and the level of his cannabis use is unknown.
He has not had any major mental disorders in the past albeit Dr Pascu has made a number of clinical diagnoses including:
(a)antisocial personality traits;
(b)mental and behavioural disorders due to cannabis and alcohol misuse - currently declared abstinent; and
(c)impaired coping, problem solving skills and impulsivity predating the head injury.[35]
[35] Report of Dr Pascu dated 9 April 2019, par 19.
The accused is a person who has maintained employment and run his own business albeit, in the context of being impulsive, with issues around self‑regulation, having breached the law and in particular having committed two serious offences of violence.
Dr Pascu also considered that the accused was suffering low mood and anxiety.[36] Dr Hargate expressed a similar opinion believing the accused had indications of depressive mood disturbance.[37]
[36] Report of Dr Pascu dated 9 April 2019.
[37] Report of Dr Hargate dated 2 June 2019, par 11.1.
Since the accident the accused has been apathetic with there being a particular increase in his apathy between 2017 and 2019. The accused is recorded as saying 'I cannot be bothered doing anything and find it difficult to do anything to help mum'.[38]
[38] Report of Dr Pascu dated 9 April 2019, par 12.
The accused is in fact said to spend his days at home, going out rarely and then mostly to a friend's home. He is said to become anxious when considering leaving home and at times is physically unwell.[39]

Public interest

[39] ts 130.

Considerations of the public interest give rise to the question of the accused's risk of re‑offending. To this end, the accused was seen by Naomi Oliver, a forensic psychologist.
In order to evaluate the accused's risk Ms Oliver adopted the Historical, Clinical and Risk Management – Version 3 (HCR‑20V3). This scheme proves information about both static (historic/stable) and dynamic (changeable) factors that have been found to be related to the likelihood of re‑offending violently.
Insofar as the historical scale is concerned, the accused is evaluated at an elevated risk for offending violently. He presented with all 10 risk valued factors evaluated in the historical section. He had a history of problems with violence, violent attitudes, antisocial behaviours, antisocial disorder traits, relationships, substance use, traumatic experiences and treatment while supervision responses were poor. The accused's antisocial personality traits were confirmed utilising personality assessment inventory testing.
However, any evaluation of risks requires a consideration of other dynamic factors. In her expert opinion Ms Oliver considered that some of the clinical factors were more positive than the historical factors and would serve partly to moderate the risk for violence that is indicated on the historical scale alone.[40]
[40] Report of Ms Oliver dated 12 September 2019, par 35.
Ms Oliver acknowledges that there are issues that continue to be present including that the accused:
(a)lacks the understanding or awareness of his potential to engage in future violent behaviour should his current situation improve;[41]
(b)does still have violent thoughts at times although he consciously does not act on them;[42]
(c)has ongoing problems with cognitive instability including deficits in coping skills and negative self‑concept with some evidence of affective instability (distress, anxiety, irritability and a labial mood);[43] and
(d)is resistant to engage in therapeutic interventions.[44]
[41] Report of Ms Oliver dated 12 September 2019, par 36.
[42] Report of Ms Oliver dated 12 September 2019, par 37.
[43] Report of Ms Oliver dated 12 September 2019, par 39.
[44] Report of Ms Oliver dated 12 September 2019, par 40.
However, there are a number of matters in place that suggest these are currently managed. These include:
(1)His stable living environment. He lives in his own home with his supportive mother where his behaviour is carefully monitored.[45] She also ensures he attends all his medical appointments including any psychological and psychiatric ones;
(2)He is acutely aware of the significant impact that future violence could have on further brain damage and is motivated to exercise greater restraint; and
(3)He is decidedly less impulsive to act on his violent thoughts.
[45] Report of Ms Oliver dated 12 September 2019, par 52.
Also significant is that he has regular contact with professional services and support from Bridgewater who assists in providing care and treatment to him for the problems associated with his head injury. He has engaged at least on some level, with a psychiatrist and a psychologist involved in his care. This access will be ongoing and more comprehensive if he chooses to engage.[46] Given this ongoing contact, Ms Oliver believes that any treatment for the behaviours that have given rise to his past offending can be delivered in tandem with those associated with his TBI. An appropriate practitioner would need to be engaged.
[46] Report of Ms Oliver dated 12 September 2019.
In the meantime, the accused's depression and apathy means that he is less likely to leave his home and engage with people outside the home. It is submitted that this minimises his risk because of the lack of opportunity.
He does continue to consume substances like alcohol and cannabis and this is a factor that will need to be addressed in any treatment. His alcohol consumption though, appears to be less than it was and involves drinking at home.
It is therefore submitted on his behalf that any risk he poses has been reduced as a result of his circumstances, including his depression and apathy and the presence of his mother to ensure ongoing treatment. Until such time as his depression and apathy have been dealt with, which themselves will require psychological counselling, then it is unlikely that he will be a risk to the community.
His mother, who has daily and ongoing contact with him, has indicated that she has not ever felt in fear of him, nor has she been concerned since the accident that situations have presented that could give rise to offending.

Release or custody order - conclusion

This is serious offending that is not inconsistent with the accused's prior behaviour. I consider it necessary that he have appropriate counselling to address the behaviours that underlie his offending. Those behaviours, however, are ones that relate to his personality type. Whilst his risk is elevated, there has been no violent offending for three and a half years. His current situation is stable with limited opportunities to engage with the community, ongoing supervision by both his mother and representatives of Bridgewater, and the accused himself has strong personal motivations to avoid violent situations.
There is no guarantee that the accused will not re‑offend but it is also clear that there are currently matters in the accused's personal situation and his medical presentation that mean this risk is being adequately monitored. Further it seems that the accused's depression and apathy will require psychological intervention to resolve.[47] Treatment for this could include treatment for the issues underlying his offending conduct.
[47] Evidence of Ms Oliver, ts 108 - 109.
Given that the accused has not been convicted of any offence, and the issues of risk are currently adequately dealt with and there will be ongoing monitoring of his medical and concurrent psychological conditions, I do not consider it is, in the circumstances of this case, appropriate to impose a custody order and will order the accused be released. I note that it would be preferable for there to be conditions placed upon the accused's release but the legislation does not provide for this.

Orders

For the above reasons I make the following orders:
(1)A declaration that the accused is unfit to stand trial and will not become mentally fit to stand trial within six months.
(2)The indictment dated 10 March 2017 is quashed.
(3)The accused is released given I have concluded that it is not appropriate to impose a custody order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
Associate to Judge Petrusa
22 NOVEMBER 2019