The State of Western Australia v Hausler - [2021] WASC 349

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- HAUSLER [2021] WASC 349
CORAM:   FIANNACA J
HEARD:   13 AUGUST & 12 OCTOBER 2021
DELIVERED          :   12 OCTOBER 2021
PUBLISHED           :   12 OCTOBER 2021
FILE NO/S:   INS 21 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
TROY ADAM HAUSLER
Accused

Catchwords:

Criminal law - Fitness to stand trial

Legislation:

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

Result:

Finding that the accused is presently fit to stand trial

Category: B

Representation:

Counsel:

Prosecution	:	Mr L Hobson & Mr S Lindsay (13 August 2021) & Ms S Kavanagh (12 October 2021)
Accused	:	Ms R Sleeth

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Magenta Legal

Cases referred to in decision:

Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
R v Taylor (1992) 77 CCC (3d) 551
The State of Western Australia v Mack [2012] WASC 127
The State of Western Australia v Tekle [2017] WASC 170
The State of Western Australia v Tekle [No 2] [2017] WASC 351

FIANNACA J:

Introduction

The accused stands charged on an indictment dated 16 June 2020 that on 11 November 2019 at Marble Bar he murdered Tobias Goesta Richter.
His trial on that charge was to take place over a period of 15 days commencing on 23 August 2021. By an application filed on 6 August 2021, counsel for the accused sought an early listing of the matter for the purpose of applying to vacate the trial dates on the basis that the accused may be mentally unfit to stand trial as a result of a psychotic illness. At that stage the accused's mental unfitness to stand trial was raised as a potential issue that required further investigation, and which was unlikely to be resolved by 23 August 2021.
The application to vacate the trial dates was heard by me at a directions hearing on 13 August 2021. By that stage, the application was put by the accused's counsel on the basis that, having regard to the psychiatric reports of two consultant forensic psychiatrists, Dr Victoria Pascu and Dr Adam Brett, which were relied upon by the accused at the hearing, I could be satisfied pursuant to s 12 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act) that the accused was not mentally fit to stand trial, and that the matter should be adjourned for a number of months while the accused was being treated for the psychotic illness, with a view to assessing whether he had become mentally fit to stand trial during that time. Counsel for the accused submitted that the medical evidence suggested the accused's condition should improve with treatment, and that the matter could then again be listed for a trial.
The State supported the application, in effect conceding that the conclusion to be drawn from the psychiatric reports relied upon at the hearing was that the accused was mentally unfit to stand trial at that stage.
I was not satisfied that I could make a finding, based on those reports, that the accused was mentally unfit to stand trial. However, the question having been raised as to whether the accused is 'not mentally fit to stand trial',[1] and there being a reasonable basis in the psychiatric reports for considering that there may be an issue in that regard, I concluded that it was necessary to inquire into the question, and that the time necessary for that inquiry to be completed meant that the trial could not proceed on the listed dates. The materials presented at the hearing raised the possibility of an organic cause of the accused's psychotic symptoms. Consequently, I ordered that the accused be examined by a neuropsychologist and that a report by the neuropsychologist be submitted to the court, pursuant to s 12(2) of the Act.
[1] The Act, s 11.
Accordingly, I granted the application to vacate the trial listing, and the matter now comes to be dealt with under s 12(1) of the Act, as an inquiry into the question of whether the accused is not mentally fit to stand trial.
Although, from the court's perspective, it was intended that the inquiry would consist of the neuropsychological assessment, it was open to the parties to follow other lines of inquiry and to adduce evidence from Dr Pascu and Dr Brett at the hearing in due course. To that end, the accused's counsel obtained a further report from Dr Pascu, outlining her findings from a further assessment she conducted of the accused on 22 September 2021. A copy of Dr Pascu's report, dated 28 September 2021, was provided to the court. In light of the conclusions reached by Dr Pascu in that report, both parties indicated they would be submitting that the accused is now mentally fit to stand trial. The neuropsychological assessment had not yet occurred.
Having considered the contents of Dr Pascu's report of 28 September 2021, I was of the view that the question of whether the accused is not mentally fit to stand trial could be determined on the basis of Dr Pascu's findings, without the need for a neuropsychological assessment to be completed for the purposes of the inquiry. Accordingly, the request for the neuropsychological assessment was cancelled and the matter was listed for further hearing on 12 October 2021.
For reasons that follow, I find that the accused is mentally fit to stand trial.

The law

The relevant law is not in dispute. The question of whether an accused is not mentally fit to stand trial is to be determined in accordance with the provisions of the Act.
An accused is presumed to be mentally fit to stand trial until the contrary is found under Part 3 of the Act.[2] However, if an accused is found to be not mentally fit to stand trial, he is presumed to remain not mentally fit until the contrary is found under Part 3.[3]
[2] The Act, s 10(1).
[3] The Act, s 10(2).
Section 9 of the Act defines the circumstances in which an accused is not mentally fit to stand trial for an offence. They are that 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.
'Mental impairment' is defined by s 8 to mean 'intellectual disability, mental illness, brain damage or senility'. 'Mental illness' means:
[A]n underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.
Section 12(1) of the Act provides:
The question of whether an accused is not mentally fit to stand trial is to be decided by the presiding judicial officer on the balance of probabilities after inquiring into the question and informing himself or herself in any way the judicial officer thinks fit.
As will appear later in these reasons, there is evidence that the accused has suffered, and perhaps continues to suffer, from delusions, which appear to be symptoms of a psychotic illness. Further, there have been some indications in what the accused has said to psychiatrists who have assessed him since his arrest, that his intended defence may be based in delusional beliefs, although the accused has denied that his beliefs are delusional. It is appropriate, therefore, to refer to the following propositions of law that were adopted by Gleeson CJ in Eastman v The Queen[4] from R v Taylor,[5] which are apt in the context of this case:[6]
(a)The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject-matter of the trial.
(b)The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.
[4] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1. These propositions were also referred to in The State of Western Australia v Mack [2012] WASC 127 and in The State of Western Australia v Tekle [2017] WASC 170 (Tekle).
[5] R v Taylor (1992) 77 CCC (3d) 551 (Taylor).
[6] Taylor, 564 - 565.
I also adopt my outline in The State of Western Australia v Tekle [No 2] [2017] WASC 351 at [47] to [61] of the legal principles relevant to the proper construction of the criteria in s 9 of the Act. In particular, as I noted at [60.4] of that decision, for an accused to be mentally fit to stand trial, it is not necessary that he have the capacity to make an able defence, to act wisely, or to act in his own best interests. That is particularly so when an accused is represented by counsel who will make forensic decisions about the proper conduct of the defence. However, the phrase 'to properly defend' connotes, among other things, the ability to consider in an informed way and make rational choices about defences that are reasonably open on the evidence and the submissions that should be made by the defence in respect of the evidence presented by the prosecution.[7]
[7] The State of Western Australia v Tekle [No 2] [2017] WASC 351 [61], referring to Tekle [93].
The procedure upon a finding in this court that an accused is not mentally fit to stand trial is set out in s 19 of the Act. It is sufficient to note that if the judge is satisfied that the accused will not become mentally fit to stand trial within six months after that finding, the judge must make an order under s 19(4), being an order quashing the indictment and either releasing the accused or making a custody order. If the judge is not so satisfied, he or she must adjourn the proceedings in order to see whether the accused will become mentally fit to stand trial. The latter is the course for which both parties contended at the hearing on 13 August 2021, but which I refused, because I was not prepared to make a finding on the available materials at that stage that the accused was not mentally fit to stand trial.
The threshold question remains whether the evidence establishes on the balance of probabilities that, at present, the accused is not mentally fit to stand trial. As I have already indicated, it does not, so it will not be necessary to address the issues in s 19 of the Act. However, it is necessary for me to outline the evidence in support of that conclusion. Further, given the history of the application, it is appropriate that I explain how the circumstances evolved, commencing with a brief outline of the case against the accused in respect of the murder charge, which provides context.

The case against the accused

The charge arose from an incident alleged to have occurred at the Pilgangoora Mine Site in Marble Bar. The incident occurred in a tunnel in the crushing area of the mine. The accused and Mr Richter were work colleagues. They had both attended a pre-start meeting on the morning of the alleged offence. Mr Richter had then gone to the tunnel to commence working. The accused followed a short time later. It is alleged that a violent confrontation took place between the two men, which resulted in Mr Richter's death. It is alleged that, after Mr Richter died, the accused wrapped his body in a canvas cover secured with a rope, and moved the body approximately 20 metres to the front of the tunnel area, near to which the accused had parked a work vehicle.
The prosecution case is that other work colleagues attended the scene around that time and saw the deceased wrapped in the canvas on the ground near the rear of the vehicle. It is alleged that the accused requested their assistance to '[get] rid of the rubbish' (referring to the deceased) by placing the wrapped body in the vehicle. The work colleagues refused and contacted police, who attended a short time later and arrested the accused on suspicion of murder. The accused participated in an electronic record of interview in which he declined to answer any questions in relation to the matter.
There appears to be no evidence of any history of conflict or animosity between the accused and the deceased, although statements that have been made by the accused since the incident, and observations made by some of his work colleagues about his behaviour for a period leading up to the alleged offence, suggest that the accused developed animus towards the deceased, based, it appears, on delusional beliefs about the deceased's behaviour and his attitude towards the accused and his family (although the accused has denied his beliefs were delusional).
It is sufficient to note, at this stage, that the apparent absence of any non-delusional motive or any obvious circumstance that might otherwise explain the incident, and the evidence of unusual behaviour by the accused soon after the alleged offence, gave rise to questions about the accused's mental health at the time of the alleged offence. Those questions have since been explored in the psychiatric reports.
It is not necessary, for the purposes of these reasons, to explore in any detail what may be in issue at trial, apart from any issue of mental impairment and its impact, if any, on criminal responsibility. However, I note that there may be an issue as to whether the accused caused or substantially contributed to the deceased's death, and potentially, based on statements made by the accused since the incident, self-defence might be an issue, although it may be related to delusional beliefs. I mention those matters because they would add a level of complexity to the trial that should be taken into account in dealing with the question of whether the accused is not mentally fit to stand trial.

The procedural history

Evidence at the hearing of 13 August 2021

The application brought on 6 August 2021 was supported by an affidavit from the accused's solicitor, Ms Melita Medcalf, sworn the same day. In addition, I received into evidence a psychiatric report of Dr Pascu, dated 4 March 2021, a psychiatric report of Dr Brett, dated 14 July 2021, a further report of Dr Brett, dated 31 July 2021, addressing the issue of the accused's mental fitness to stand trial, and a further report of Dr Pascu, dated 5 August 2021, providing an update as to the status of the accused's mental health and his fitness to stand trial. The expertise of the two consultant forensic psychiatrists is not in question. They are both eminently qualified and experienced forensic psychiatrists who have presented reports and oral evidence to the court on many occasions, including in relation to the issue of mental fitness to stand trial.
As it is relevant to the procedural history, I note also that the court has received a brief letter from a Consultant Forensic Psychiatrist at the State Forensic Mental Health Service, Frankland Centre, dated 11 October 2021, concerning the accused's stay at the Frankland Centre.
The following facts emerge from the abovementioned materials.

Events leading up to the hearing of 13 August 2021

Dr Pascu was engaged by the accused's counsel to examine the accused and prepare a report regarding his mental health. It is apparent from Dr Pascu's report of 4 March 2021, that she was asked to consider the accused's mental health issues generally and, more particularly, to provide an opinion in respect of a potential insanity defence under s 27 of the Criminal Code (WA) and the accused's fitness to stand trial. Although Ms Medcalf stated in her affidavit that the defence asked Dr Pascu to prepare a report in February 2021, Dr Pascu states in her report of 4 March 2021 that she interviewed the accused on 21 November 2020, which suggests she was engaged to assess the accused before then. In any event, Dr Pascu conducted other enquiries and examined materials in the prosecution brief before preparing her report. Once her report was available, a copy was provided to the State. At that stage, Dr Pascu assessed the accused to be mentally fit to stand trial.
The State then engaged Dr Brett for a second opinion in respect of the issues concerning the insanity defence. After examining the accused and reviewing the prosecution brief and other materials, Dr Brett submitted his report dated 14 July 2021.
In the meantime, on 12 July 2021, the accused was admitted to the Frankland Centre from Bunbury Prison after concerns were raised about a deterioration in his mental health. Dr Pascu assisted with the admission.
On 21 July 2021, the accused's counsel requested a further opinion from Dr Pascu addressing the issue of the accused's mental fitness to stand trial. The State was advised on 29 July 2021 that the further report had been sought.
On 31 July 2021, Dr Brett provided his second report, which addressed the accused's progress in the Frankland Centre and his mental fitness to stand trial. That report was disclosed to the defence on 3 August 2021.
Dr Pascu subsequently provided her report dated 5 August 2021, having interviewed the accused again on 26 July 2021. She arrived at a different conclusion from that outlined in her report of 4 March 2021 in respect of the accused's mental fitness to stand trial.
It is sufficient to note the following relevant matters from the reports that were available at the hearing of 13 August 2021.

Dr Pascu's report of 4 March 2021

In her report of 4 March 2021, Dr Pascu referred to the accused's history of mental illness and her assessment of his mental state on 21 November 2020. The accused described a history of depression and 'social anxiety', as well as hypomanic episodes, but no psychotic symptoms. He had not had contact with mental health services in the past. After the alleged offence he had presented as 'paranoid, initially withdrawn and with blunted affect'.[8] Over time, in custody, he had displayed disturbed behaviour. He was diagnosed by the prison psychiatrist with Bipolar Affective Disorder and was prescribed a mood stabiliser. Dr Pascu agreed with that diagnosis. She also noted that the accused has a history of a congenital cardiac anomaly (Ebstein Disease) with a secondary heart valve disease, as well as a history of hypertension.
[8] Dr Pascu's report, 4/3/2021 [32].
From the accused's behaviour since the alleged offence, Dr Pascu gleaned a history of persecutory and grandiose delusions, with possible auditory hallucinations at the time of the alleged offence. However, there was no evidence of psychotic phenomena when Dr Pascu interviewed the accused.
Dr Pascu addressed all of the criteria in s 9 of the Act with the accused and was of the opinion that he was fit to stand trial with assistance from his counsel at the time she interviewed him in November 2020.

Dr Brett's report of 14 July 2021

In his report of 14 July 2021, Dr Brett noted that the accused has no formal previous psychiatric history; he has never previously been treated for a mental disorder, although he has had at least one past episode of depression. In light of the observations made by some witnesses, who were the accused's work colleagues, Dr Brett considered that the accused's mental health had changed before the alleged offence, despite the accused's denial that he was mentally unwell.
Overall, having regard to the accused's behaviour since he was arrested, Dr Brett was of the opinion that the accused's mental health presentation had been atypical, and there was good evidence that the accused has had depression, hypomania and probable psychosis.
Dr Brett noted that the accused had remained stable until June 2021, when he was diagnosed with a 'psychotic relapse',[9] after which the accused was prescribed anti-psychotic medication and referred to the Frankland Centre.
[9] Dr Brett's report, 14/7/2021, p 17 [7].

When Dr Brett interviewed the accused on 8 June 2021 (at Bunbury Prison) and 13 July 2021 (at the Frankland Centre), there was no evidence of psychosis, although the accused's affect was more restricted on the second occasion, which Dr Brett thought may reflect the additional medication the accused had been prescribed.
Dr Brett made a diagnosis of 'atypical mood disorder', with possible psychotic symptoms and post traumatic stress symptoms. He concluded that the clinical issue seemed to be whether the accused had developed a mental disorder before the alleged offence, or whether, due to the trauma of the events, he had developed a mental disorder after the offence.

Dr Brett's report of 31 July 2021

In his report of 31 July 2021, Dr Brett addressed the question of whether the applicant was mentally fit to stand trial. For that purpose, he interviewed the applicant again on 30 July 2021. Dr Brett noted that there were no obvious psychotic phenomena, but there were a number of odd features. On this occasion, his diagnosis was of 'atypical psychotic symptoms' and post traumatic stress symptoms.
Dr Brett noted that the accused's very unusual presentation and history is inconsistent with common mental disorders. He referred to the accused's 'history of episodic, odd presentations that appear to be consistent with psychosis'.[10] He said that the accused's atypical presentation was being investigated. The investigations, a number of which had yet to be completed or reported, consisted of an MRI scan, an Electroencephalogram (EEG), a SPECT scan, basic psychology testing and a multidisciplinary team assessment. Dr Brett considered that the accused would benefit from a neuropsychological assessment. He noted that the accused has unusual physical health issues (being 'Ebstein's anomaly' and 'Wolff-Parkinson-White syndrome', a condition that affects the electrical functioning of the heart), and considered it would be important to exclude organic conditions that may have caused his clinical presentation.
[10] Dr Brett's report, 31/7/2021, p 5 [1].
In relation to the question of the accused's mental fitness to stand trial, Dr Brett said that the accused 'appears to have a mental illness within the psychotic spectrum', which, in his opinion, would qualify as a mental impairment for the purposes of the Act, even though the accused's diagnosis is not yet clear.[11] Examining each of the criteria in s 9 of the Act, Dr Brett was of the opinion that none of the criteria in paragraphs (a) to (f) were met, in that the accused was able to understand all of the things in paragraphs (a) to (d) and (f), and would be able to follow the course of a trial (paragraph (e)), in that he was not thought disordered. In relation to paragraph (g), which is concerned with whether an accused is unable to properly defend the charge, Dr Brett said:[12]
Mr Hausler's investigations and diagnostic formulation have not yet been completed. This impacts on his legal strategy and his ability to properly defend the charge. It could be argued that this is not related to his mental impairment, however, he had a recent change in his presentation and this has been his first admission to a mental health unit. Given his unusual presentation and his ongoing investigations, I believe that it is inherently his mental illness that is depriving him of the ability to properly defend the charge.
[11] Dr Brett's report, 31/7/2021, p 4 [20].
[12] Dr Brett's report, 31/7/2021, p 5 [21].
Dr Brett elaborated further as follows:[13]
His fitness to stand trial is again atypical. I believe that if all of his investigations were complete and his diagnosis was clear he would be fit. However, this is not the case. He is unable to decide his legal strategy due to the myriad of possibilities available to him dependent on the investigations and diagnosis.
[13] Dr Brett's report, 31/7/2021, p 6 [6].
With all due respect, Dr Brett's approach to the question in paragraph (g) of s 9 of the Act is misconceived. It appears to proceed from the difficulty confronting the defence in relation to the appropriate legal strategy to defend the charge, because of the 'myriad of possibilities' available to the accused depending on the outcome of investigations, and to work backwards in attributing the cause of those difficulties to his mental illness, the diagnosis of which remains uncertain. The fallacy in the approach is evident when one considers that the accused's counsel is confronted with the same difficulty in relation to legal strategy (in fact, more directly so, as the accused's representative entrusted with presenting his defence). The obstacle to counsel's ability to 'properly defend the charge', assuming there is an obstacle, is attributable to evidentiary issues that need to be resolved in respect of the accused's mental health. As I have understood Dr Brett's opinion, the accused's mental impairment would not deprive him of the ability to choose an appropriate legal strategy and to provide instructions to his counsel in that regard, once the evidence from the current investigations is received. Rather, it is the uncertainty about the accused's mental impairment and its potential impact on an appropriate defence (for instance, an insanity defence or self-defence) that, in Dr Brett's estimation, is 'depriving the accused of the ability to properly defend the charge'. In my opinion, that is an inversion of the test, and provides no basis for concluding that the applicant was not mentally fit to stand trial at the time of Dr Brett's assessment on 30 July 2021.

Dr Pascu's report of 5 August 2021

For the purposes of her report of 5 August 2021, Dr Pascu interviewed the accused on 26 July 2021, four days prior to Dr Brett's interview with the accused. Dr Pascu noted there was no evidence of formal thought disorder and the accused denied any active psychotic phenomena. However, she noted that the accused appeared guarded, suspicious, paranoid, and, at times, somewhat distracted, 'possibly responding to unseen stimuli which he adamantly denied'.[14] She also noted that there was no evidence of agitation or distress when discussing 'his concerning, current circumstances which he appeared to ignore'.[15] Dr Pascu was of the opinion that the accused had no insight into his circumstances and his mental illness at that stage.[16] She considered that the accused's judgment was impaired, although cognitively he was intact.[17]
[14] Dr Pascu's report, 5/8/2021 [18].
[15] Dr Pascu's report, 5/8/2021 [15].
[16] Dr Pascu's report, 5/8/2021 [18].
[17] Dr Pascu's report, 5/8/2021 [18].
Dr Pascu addressed each of the criteria in s 9 of the Act. She was of the opinion that the accused was not mentally fit to stand trial.[18] In essence, apart from the ability to enter a plea, Dr Pascu was of the opinion that the accused satisfied all of the other criteria in s 9. However, her language in respect of some of the criteria, for instance, referring to a lack of 'satisfactory understanding', suggested a qualitative assessment that may not have equated with the lack of capacity with which the criteria are concerned. Nevertheless, Dr Pascu believed that, because of his mental impairment, the accused was unable to understand (or understand satisfactorily) the nature of the charge, the 'process of a trial', the right to challenge jurors (or be able to exercise that right) or the substantial effect of evidence presented against him. Dr Pascu also considered that the accused would not be able to follow the course of a trial (believing it to be 'predetermined, all a set up') or properly defend the charge. As to the latter, Dr Pascu said that the accused 'threw away the paperwork that was provided to him by his legal team and reported to his treating Psychiatrist that he had more important things to deal with than the trial'.
[18] Dr Pascu's report, 5/8/2021 [19].
With all due respect, I was (and remain) of the view that Dr Pascu's explanations for her opinions in respect of the criteria were either inadequate to enable an assessment to be made of the weight to be given to them, or not necessarily supportive of the conclusions drawn. Importantly, Dr Pascu did not compare the accused's responses with his responses in November 2020, when Dr Pascu found that the accused was mentally fit to stand trial. In fairness, given that counsel proceeded on the basis of reports, and Dr Pascu was not called to give evidence, she did not have the opportunity to deal with those issues. Further, the reservations I have expressed do not detract from the conclusion that the accused was suffering from a mental illness when he was interviewed by Dr Pascu on 26 July 2021. However, mental illness per se does not necessarily correlate with mental unfitness to stand trial, as I noted in discussing the law.
The reservations I have expressed concerning Dr Pascu's findings in respect of the s 9 criteria explain why, at the hearing of 13 August 2021, I did not consider that I could rely on Dr Pascu's report to find that the accused was not mentally fit to stand trial. Of course, the fact that Dr Pascu's findings were at odds with Dr Brett's findings in respect of most of the s 9 criteria, when their interviews with the accused were only four days apart, reinforced my reservations.

The hearing of 13 August 2021

Earlier in these reasons, I outlined the submissions made at the hearing on 13 August 2021 and the fact that I was not satisfied I could make a finding at that stage that the accused was not mentally fit to stand trial. The difference of opinion between Dr Pascu and Dr Brett in respect of a significant number of the accused's capacities, and the fact that Dr Brett's conclusion in respect of paragraph (g) of s 9 of the Act was based on what I consider to be an erroneous approach to that criterion, were significant considerations in arriving at that view. However, as I explained earlier, the question having been raised as to the accused's mental fitness to stand trial, I considered that an inquiry should be conducted into that issue. My decision to order a neuropsychological assessment was influenced by Dr Brett's recommendation that such an assessment be undertaken because of the potential complication of an organic cause of the accused's mental presentation.
At the conclusion of the hearing, I remanded the accused in custody until 12 October 2021 for a further hearing in respect of the issue of the accused's mental fitness to stand trial, in the expectation that the neuropsychological report would be prepared by then.

Events after 13 August 2021

After the matter was adjourned, it became apparent that there would be a delay in the neuropsychological assessment, and a report would not be ready by 12 October 2021. Nevertheless, the matter remained listed for hearing on that date in case further directions were required.
By an email to my Associate dated 8 September 2021, the accused's solicitor sought to vacate the hearing which was to commence on 12 October 2021, on the basis that it was no longer necessary to conduct a hearing into whether the accused was not mentally fit to stand trial, because Dr Pascu had assessed the accused again and was of the opinion that the accused was now mentally fit to stand trial. The accused's solicitor was seeking a relisting of the trial.
However, as the question of whether the accused is not mentally fit to stand trial had been raised pursuant to s 11 of the Act, I determined that the question remained to be 'decided by the presiding judicial officer' in accordance with s 12 of the Act. Consequently, I determined that the hearing to decide that issue should proceed. However, the parties were informed that, if they considered it an appropriate course, the hearing could proceed on the basis of an updated report from Dr Pascu, in which case, it would not be necessary to wait for the neuropsychological assessment of the accused.
The further report of Dr Pascu, dated 28 September 2021, was forwarded to the court on 5 October 2021. I am satisfied, having regard to that report, that there is now sufficient evidence before me to decide the matter in accordance with s 12 of the Act, and the neuropsychological report is no longer necessary.

Hearing on 12 October 2021

At the hearing on 12 October 2021, both parties submitted that I should rely on the report of Dr Pascu dated 28 September 2021, and that it was not necessary to obtain a neuropsychological report in respect of the accused's mental fitness to stand trial. Further, both parties submitted that I should find, on the evidence currently available, that the accused is mentally fit to stand trial. Although trial dates are not available until next year, resolution of the issue of the accused's mental fitness to stand trial at this stage has a bearing on his capacity to proceed with a plea offer to the State.
Dr Pascu was not called to give oral evidence in the proceedings.

Evidence relevant to the inquiry

I am satisfied that the question of whether the accused is not mentally fit to stand trial can be resolved by reference to Dr Pascu's report of 28 September 2021 and Dr Brett's report of 31 July 2021.

Dr Pascu's report of 28 September 2021

Dr Pascu interviewed the accused on 22 September 2021. She noted that the accused's mental state had improved since she last saw him on 26 July 2021. She considered that the improvement was due to the treatment the accused had received at the Frankland Centre. The accused acknowledged to Dr Pascu that the anti-psychotic medication had helped him, although he had to change medication because the first drug was causing side effects.[19]
[19] Dr Pascu's report, 28/9/2021 [20].
Dr Pascu noted that when she had seen the accused on 26 July 2021, his presentation was 'quite different to his presentation during the initial interview for [her] report dated 4 March 2021'.[20] Her observations at the interview of 26 July 2021 are referred to at [47] above. Dr Pascu reported that in the most recent interview the accused 'presented as less guarded and more able to provide information regarding his circumstances'.[21] So, the impression is that the accused's presentation had previously deteriorated, but has improved in the last two months.
[20] Dr Pascu's report, 28/9/2021 [13].
[21] Dr Pascu's report, 28/9/2021 [14].
Dr Pascu also noted a difference in the accused's insight into his psychotic symptoms. Whereas in the previous report the impression was that the accused had been experiencing psychotic symptoms such as auditory and visual hallucinations without recognising them as such, in the most recent interview the accused described auditory hallucinations, saying they had started approximately six months ago, and was able to identify them as hallucinations, saying that if he ignores them they eventually stop.[22] Dr Pascu said the hallucinations appeared to be 'auditory pseudo hallucinations in context of the evolving post trauma symptoms and secondary depression'.[23]
[22] Dr Pascu's report, 28/9/2021 [14] - [15].
[23] Dr Pascu's report, 28/9/2021 [28].
Dr Pascu noted there was no evidence of persecutory or grandiose delusions.[24]
[24] Dr Pascu's report, 28/9/2021 [28].
Dr Pascu also noted a significant improvement in the accused's appreciation of his circumstances in respect of the charge of murder and the need to prepare for a trial. In relation to his previous attitude, Dr Pascu said:[25]
During reviews with the treating Psychiatrist where his legal situation was discussed he appeared to have no appreciation of his circumstances and the seriousness of the alleged offence reporting that he had more important things to think about than the trial. When his legal team attended and provided him with the court brief Mr Hausler threw the paperwork in the bin saying that he had more important things to consider such as seeing him (sic) cousin who he has not seen for some time.
[25] Dr Pascu's report, 28/9/2021 [12].
At the hearing of 13 August 2021, I did not consider that the latter observations necessarily demonstrated an inability on the accused's part to properly defend the charge due to his mental impairment. However, the contrast with his current situation is a relevant consideration in giving weight to Dr Pascu's latest findings in respect of the accused's mental fitness to stand trial.
Dr Pascu reported that, in the most recent interview, '[w]hen discussing his legal circumstances [the accused] appeared to have a better understanding and appreciation of his case'.[26] He appeared more engaged in the discussions about his legal situation.[27] Further:[28]
Mr Hausler talked in an appropriate manner about the impact his circumstances had not only on his, but his family’s lives and appeared to have a good appreciation of how this may affect the relationship with his wife and overall, the longevity of his marriage.
[26] Dr Pascu's report, 28/9/2021 [21].
[27] Dr Pascu's report, 28/9/2021 [25].
[28] Dr Pascu's report, 28/9/2021 [22].
In addition, Dr Pascu appears to have regarded the accused's demeanour during discussions about the case in the most recent interview as more commensurate with a better appreciation of his case. She noted:[29]
There was evidence of agitation and distress while discussing the alleged offence and his inability to comprehend what happened; he also presented as distressed when describing his post traumatic symptoms and his concerning, current circumstances.
[29] Dr Pascu's report, 28/9/2021 [25].
Those features were absent on the previous occasion.[30]
[30] See [47] above.
In summary, the accused has insight into his current circumstances and his mental illness. He again appeared to be cognitively intact. Whereas previously he was assessed by Dr Pascu to have impaired judgment, she considered that he demonstrated fair judgment in his most recent interview.[31]
[31] Dr Pascu's report, 28/9/2021 [28].
Considering all the information available since her previous assessment of the accused, Dr Pascu remained of the view that he has a mental impairment.[32] She is of the opinion that the accused's current presentation is more consistent with a psychotic illness, likely schizophrenia, 'although the significant affective component cannot be minimised, hence the diagnosis of Schizoaffective disorder will need to be considered'.[33] As there is no history of polysubstance abuse, it is Dr Pascu's opinion that the accused's psychotic illness is very unlikely to be drug-induced.[34]
[32] Dr Pascu's report, 28/9/2021 [30].
[33] Dr Pascu's report, 28/9/2021 [31].
[34] Dr Pascu's report, 28/9/2021 [31].
Dr Pascu also stated that, since her previous assessment of the accused, his presentation is more consistent with 'a psychotic illness in partial remission', and the main concern now is his post-traumatic stress and depressive symptomatology, which will require close monitoring and treatment.[35]
[35] Dr Pascu's report, 28/9/2021 [32].
Regarding the accused's fitness to stand trial, Dr Pascu considered that, despite his post-traumatic stress and moderate depressive symptoms, the accused was fit to stand trial with assistance from his counsel.[36] She considered the criteria set out at s 9 of the Act and reported as follows:[37]
a. Mr Hausler had a satisfactory understanding and appreciation of the nature of the charge; he described the alleged offence as self-defence as at the time he believed that the victim was going to kill him. He was unable to elaborate and described feeling confused about the circumstances leading to the alleged offence.
b. He understood that he was required to enter a plea to the charge and had a satisfactory understanding of the differences between the guilty and not guilty pleas. He said that he would plead self-defence as at the time he believed there was something going on his life (sic) was somehow in danger from the victim. He was however unable to explain what was going on and appeared distressed by his inability to understand what happened. He denied however the victim and the witnesses having some involvement with bikies and was unable to explain why he previously believed they were involved with these.
c. Mr Hausler had a satisfactory understanding of the process of a trial and was able to explain his thinking the process through appropriately, highlighting that he would consult with his counsel and his family at every step.
d. I believe that he would be able, with assistance from his counsel, to exercise his right to challenge jurors. Given his current mental state he appeared to better comprehend the role of the jury and the process of allocating the jury.
e. Mr Hausler appeared to have a reasonable understanding and appreciation of the course of a trial.
f. Given his current mental state I am of the view that he had the ability to understand evidence presented against him and he would have the ability to appreciate the implications of the evidence to the case, with assistance and support from his counsel.
g. Mr Hausler, I believe, would be able to defend the charges and would be able to consult with counsel; he became genuinely distressed when discussing the content of the prosecution brief and was very keen to discuss any decisions not only with the legal team but also consult with his family.
[36] Dr Pascu's report, 28/9/2021 [29].
[37] Dr Pascu's report, 28/9/2021 [29].

Although in respect of some of the criteria, Dr Pascu's explanations for her conclusions are again somewhat limited, and it is difficult to determine the manner in which the accused's responses differed from his responses on 26 July 2021, I am satisfied I can rely on Dr Pascu's findings for the following reasons. First, in relation to some of the criteria there is greater detail in her explanation of the accused's capacity. Secondly, in respect of some of the criteria, the findings correlate with the more detailed findings elsewhere in Dr Pascu's report, as outlined above. Thirdly, Dr Pascu's findings resonate with the overall impression from her report that, during the interview of 22 September 2021, the accused showed significant improvement in his mental state, his insight, and his willingness to engage with his legal case.

Further consideration of Dr Brett's report of 31 July 2021

It is apt, as I noted above, to return to Dr Brett's findings in his report of 31 July 2021 to supplement Dr Pascu's latest findings in respect of the accused's mental fitness to stand trial. In my opinion, notwithstanding the accused's mental impairment, identified by Dr Brett in his report, Dr Brett's findings were consistent with the accused having each of the relevant capacities. If it is accepted that Dr Brett's approach to paragraph (g) of s 9 of the Act was erroneous as a matter of law, the balance of his findings would suggest the accused was mentally capable of properly defending the charge, with the assistance of counsel.

Conclusion

The accused is presumed to be mentally fit to stand trial until the contrary is found on the balance of probabilities. The evidence now before the court and relied upon by both parties, namely Dr Pascu's report of 28 September 2021, does not support a finding to the contrary, that is, that the accused is not mentally fit to stand trial. Indeed, it supports the conclusion that the accused is mentally fit to stand trial. In my opinion, Dr Brett's report of 31 July 2021 also supports that conclusion.
Accordingly, I find that the accused is fit to stand trial.
It was agreed between the parties that the trial dates provisionally held for next year should be retained at this stage, but that the matter should be listed for a Status Conference on 18 November 2021 to review the trial listing, in the event that the matter can be resolved without a trial.
It is appropriate that there be a suppression order in respect of these reasons until the conclusion of the criminal proceedings in this matter.

Orders

The matter is adjourned to 18 November 2021 for a Status Conference.
The accused is remanded in custody until that date.
There is to be no publication of these reasons until the criminal proceedings in INS 21 of 2020 have concluded, except that a copy of the reasons may be provided to legal representatives of the State and the accused for the further conduct of the criminal proceedings and any judicial officer and court officer dealing with the criminal proceedings, and may be shown to any medical practitioner treating the accused or assessing him for the purpose of the criminal proceedings, but may not be disclosed further by any such medical practitioner.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honourable Justice Fiannaca
13 OCTOBER 2021