The State of Western Australia v Huggins - [2017] WASC 243

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- HUGGINS [2017] WASC 243

CORAM: HALL J

HEARD: 14 AUGUST 2017

DELIVERED : 14 AUGUST 2017

PUBLISHED : 21 AUGUST 2017

FILE NO/S: INS 198 of 2017

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JOHN HUGGINS
Accused

Catchwords:

Criminal law - Fitness to plead - Fitness to stand trial - Murder - Whether custody order appropriate

Legislation:

Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 9, s 10, s 11, s 12, s 19, s 24, s 25

Result:

Charge dismissed
Committal quashed
Accused released

Category: B

Representation:

Counsel:

Prosecution : Mr B Standish
Accused: Mr S F Rafferty

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: Seamus Rafferty Barrister & Solicitor

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

The State of Western Australia v Lowick [2016] WASC 339
The State of Western Australia v Tax [2010] WASC 208

HALL J: The accused in this matter, Mr John Huggins, is an 88‑year‑old man who suffers from advanced dementia. On 21 March 2017, he was arrested and charged with the murder of his wife, Mrs Joan Huggins. It was immediately apparent that he had significant cognitive impairment. He was initially detained at the Frankland Centre on a hospital order. He was subsequently released on bail and placed in a secure mental health ward at a public hospital.
On 14 August 2017, a hearing was conducted to determine whether Mr Huggins was fit to stand trial. After hearing evidence I concluded that he was not fit, and would not in the future be fit, to stand trial. I was also satisfied that a custody order would not be appropriate and that the public interest would be best served if he was placed in a secure, high‑dependency dementia facility. That outcome could only be achieved if an order releasing Mr Huggins was made.
At the end of the hearing I made orders dismissing the charge, quashing the committal and releasing Mr Huggins, pursuant to s 19(4) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act). I gave brief oral reasons for my decision and said that more detailed written reasons would be published in due course.

Procedure

An accused is presumed to be mentally fit to stand trial until the contrary is found under the Act: s 10. The question of whether an accused is not mentally fit to stand trial may be raised in the Supreme Court either before or after an indictment is presented or before or after a jury is sworn: s 11. In the present case the accused has been committed to this court but no indictment has been presented.
The question of fitness to be tried may be raised by the prosecution or the defence or the presiding judicial officer. In this case both parties agreed that this was a question requiring the determination of the court.
The question of whether an accused is not mentally fit to stand trial is to be decided by the court on the balance of probabilities. In deciding this question, the presiding judicial officer can inform himself or herself in any way he or she thinks fit: s 12(1). The court may order reports from a psychiatrist or other appropriate expert for this purpose.
Section 9 of the Act defines the circumstances in which an accused person is not mentally fit to stand trial. That section provides as follows:
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.
The term 'mental impairment' is defined in s 8 to mean intellectual disability, mental illness, brain damage or senility.
Section 19 of the Act sets out the procedure for proceedings in the Supreme Court and the District Court to determine fitness to be tried. Where a judge decides that an accused person is not mentally fit to stand trial it is then necessary to consider whether the accused may become fit within six months. If satisfied that the accused will not become mentally fit within six months, the judge must make an order quashing the indictment or, if there is no indictment, dismissing the charge and quashing the committal without deciding the guilt of the accused and either releasing the accused or making a custody order: s 19(1) and (4).
A custody order must not be made unless the alleged offence is punishable by imprisonment and the judge is satisfied that such an order is appropriate having regard to the considerations referred to in s 19(5). Those considerations are:
(a)the strength of the evidence against the accused;
(b)the nature of the alleged offence and alleged circumstances of its commission;
(c)the accused's character, antecedents, age, health and mental condition; and
(d)the public interest.
If a custody order is made, the accused person must be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Mentally Impaired Accused Review Board established under pt 6 of the Act. Any such detention continues until the accused is released by order of the Governor: s 24(1).
A mentally impaired accused person who is subject to a custody order cannot be detained in an authorised hospital unless the accused has a mental illness that is capable of being treated: s 24(2). Subsection 24(3) also provides that a mentally impaired accused person should only be detained at an authorised hospital if the Board is satisfied that the accused has a mental illness requiring treatment, that because of the mental illness there is a significant risk to the health or safety of the accused or another person, the accused does not have the capacity to consent to treatment and the treatment can only be provided satisfactorily in an authorised hospital.
Within five working days of a custody order being made the Board must review the case of the accused and determine the place where the accused is to be detained. Until the Board determines the place where the accused is to be detained, the accused is to be detained either in an authorised hospital or a prison or detention centre: s 25.
A mentally impaired accused person cannot be detained in a detention centre unless the accused is under the age of 18.
The only options under s 19(4) are unconditional release or a custody order. The court is not empowered to make an order conditionally releasing an accused person with, for example, a condition that the person reside in a secure residential dementia facility (such facilities not being authorised hospitals or declared places for the purposes of a custody order). This deficiency in the Act has been the subject of comment in other cases: The State of Western Australia v Tax [2010] WASC 208 and The State of Western Australia v Lowick [2016] WASC 339. This case also draws attention to that deficiency.
The questions to be addressed in this case are as follows:
1.Is the accused fit to be tried?
2.Will he become mentally fit to stand trial within six months?
3.Is it appropriate to make a custody order?

Fitness to be tried

At the hearing I received the following documents as evidence:
1.The prosecution brief dated 1 August 2017.
2.A report of Dr Gosia Wojnarowska, a psychiatrist, dated 30 April 2017.
3.A report from Dr Lawrence Woo, a psychiatrist, dated 9 August 2017.
4.Transcripts from the bail applications of 29 March 2017 and 3 May 2017.
The prosecution brief included reports from two other psychiatrists, Dr Liz Tate, dated 28 March 2017, and Dr Mark Hall, dated 25 May 2017. I also received oral evidence from Dr Woo and from one of the sons of the accused and the deceased, Mr Gary Huggins.
After being arrested and charged, the accused was originally detained at the Frankland Centre, Graylands Hospital, on a hospital order. Whilst there, he was subject to an extensive psychiatric assessment. Dr Tate's report relates to this assessment. She states that the accused was diagnosed with dementia in 2012. He was receiving 24‑hour care in his own home from his wife with support from his two sons. When interviewed, the accused was unable to answer even simple questions and could not offer any information about himself. He was unable to provide a basic account of recent events and had no understanding of the charge. His mood was incongruently cheerful and he was disoriented as to time, place and person. He clinically presented as having advanced dementia (psychiatric report dated 28 March 2017, pages 1 and 3).
In the short period that the accused was at the Frankland Centre he was calm and settled. There were no incidents of aggression or hostility. He presented as amiable and cooperative with requests. Throughout this time he remained totally disoriented in time, place and person. He followed all directions and did not express any paranoid beliefs or demonstrate any psychotic symptoms. He did not show any awareness of his current situation and continually asked when his wife was coming to visit him. He was given a high level of nursing care at the Frankland Centre due to his risk of falls and his vulnerability. He was considered to be at risk from others in the environment of a mental health ward, but was judged to be a low risk to others. The level of care that he required could not be provided at the Frankland Centre and it was recommended that he be transferred to an old‑age psychiatric facility. Dr Tate concluded that the accused was unfit to plead and stand trial on the basis of advanced dementia and that this would not change in the future (psychiatric report dated 28 March 2017, pages 3 and 4).
The accused was subsequently transferred to the Banksia Ward, Leschen Unit, at the Armadale Hospital. This is a locked ward for older adults with psychiatric illnesses. The accused was interviewed whilst at the Banksia Ward by DrWojnarowska. In her report she states that he was unable to sit down and have a conversation. He knew his name but not his date of birth. He believed he was young and did not know where he was, what year it was or his home address. He was not able to provide any useful information and was not aware that his wife was deceased. He presented as having severe memory problems, especially of recent events. He had lost the ability to dress himself and attend independently to his hygiene. He required supervision with meals and was unable to process questions and instructions (psychiatric report dated 30 April 2017, page 3).
DrWojnarowska said that there was no doubt as to the diagnosis of dementia (Alzheimer's type). She said that the prognosis was very poor and deterioration, with further losses in functioning and eventually total dependence, was expected in the near future. In her opinion, the accused is not fit to stand trial and his fitness would not improve with time. She said that there is no dementia‑specific treatment that would improve his cognitive functioning (psychiatric report dated 30 April 2017, page 5).
DrHall also saw the accused in the Banksia Ward. He reported that it was impossible to establish any rapport with the accused and that his speech was incoherent and his thinking disorganised. The accused had very poor comprehension and was unable to follow instructions or respond appropriately to simple questions. He was unable to provide any personal information or confirm that which was already known about him. He made nonsensical statements, sometimes accompanied by agitation and anger. He had no idea where he was and had no understanding of the charge or his current circumstances. He was not aware that his wife was deceased and did not consider that he was in any trouble with the police. He had no insight whatsoever into his dementia (psychiatric report dated 25 May 2017, page 4).
In regard to the criteria under s 9 of the Act, Dr Hall concluded that the accused does not understand the nature of the charge, does not understand the requirement to plead to the charge or the effect of such a plea, does not understand the purpose of a trial, does not understand his right to challenge jurors and would not be able to exercise that right, would be unable to follow the course of a trial, is unable to understand the substantial effect of evidence presented by the prosecution in a trial and would be unable to properly defend the charge. In summary, Dr Hall concluded that the accused is unfit to stand trial and will never become fit (psychiatric report dated 25 May 2017, pages 4 ‑ 5).
Dr Woo is a consultant psychiatrist at the Armadale Hospital and has had the opportunity to assess the accused whilst he has been resident there. Dr Woo stated in his report that following admission to the Banksia Ward the accused was very confused. Because of his agitation, as well as attempts to abscond, he was initially transferred to the locked ward. He spent five days in the locked ward where it became evident that he was essentially very confused and disoriented. Most of the time he wandered around in a state of quiet contentment. He needed a high level of prompting and supervision for all activities of daily living. After being transferred from the locked ward he continued to be very confused and staff noticed a further progression in his dementia. There have been only two episodes of aggressive behaviour, the most recent of which was on 7 May 2017, when he was found banging and kicking on a nurses' station door. There was no obvious purpose to his behaviour and he could give no explanation. His behaviour since that time has been well managed by a combination of behavioural and pharmacological interventions. With this management the only episodes of disturbance have been mild episodes of confusion when he wakes up at night and some intermittent episodes of inappropriate stripping off of his clothes. These have been easily managed by staff intervention (psychiatric report dated 9 August 2017, pages 1 ‑ 2).
Dr Woo reported that over the period that Mr Huggins has been at the Banksia Ward he has become much less physically active and there have been no attempts to leave the ward in the past two months. This is ascribed to progression of his dementia, with further confusion and lack of motivation. He remains 'pleasantly confused' and has on occasions been able to accompany his son to the hospital cafeteria and return without incident. The treating team have observed a more rapid decline in more recent weeks with the accused becoming much less active around the ward, wandering less and spending more time simply sitting in front of a television (psychiatric report dated 9 August 2017, page 2).
Dr Woo concluded that the accused has advanced Alzheimer's dementia. This is a progressive condition which leads, over time, to a person becoming more dependent and eventually totally reliant on more capable people for the activities of daily living. He has now reached an advanced stage and needs supervision and prompting for all aspects of his daily activities. He is incapable of doing anything without some level of supervision. As dementia is progressive it is not expected that he will regain any of his abilities, rather he will become increasingly dependent on others. Dementia is not considered to be a treatable mental illness though it can cause psychiatric symptoms which are amenable to treatment. He has received this secondary treatment with great success (psychiatric report dated 9 August 2017, page 3).
On the basis of this evidence I am satisfied on the balance of probabilities that the accused suffers from a mental impairment and does not have any of the abilities referred to in s 9 of the Act and that therefore he is not mentally fit to stand trial. I am also satisfied that he will not become mentally fit to stand trial within six months. Indeed, it is plain on the evidence that there is no prospect of the accused's condition improving.

Is a custody order appropriate?

The charge is that Mr Huggins murdered his wife contrary to s 279 of the Criminal Code (WA). Such an offence is punishable by life imprisonment. Accordingly it is open to make a custody order, but whether it is appropriate to do so depends upon a consideration of the factors referred to in s 19(5).

Strength of the evidence

The prosecution brief contains a statement from Andrew Huggins, the son of the accused and the deceased. To avoid any confusion, and without disrespect, I will refer to him as Andrew and his brother as Gary. Andrew states that the family, including his mother, father and Gary, emigrated from the United Kingdom. They eventually settled in Rossmoyne where Andrew and Gary finished their schooling. After some time working interstate, Andrew moved back to Western Australia and built a house in 2009. His parents loved the area and moved into a house nearby in 2010 or 2011 (prosecution brief, pages 18 ‑ 19, 22).
Andrew says that about three years ago his father was diagnosed with vascular dementia. A doctor explained that because of damage to his father's heart during a heart attack in 1988, his heart was unable to provide enough oxygen to his brain and therefore his dementia would progressively get worse. This in fact occurred, to the extent that Andrew said that his father could not recognise him and was often confused. Andrew states that his father was never physically violent towards anyone in the family until 2016. In that year there was an incident where his father got angry and pushed his mother who hit her head on a bedside table. After this there was some odd behaviour which appeared to be associated with a new type of medication. This behaviour improved after the accused was taken off the medication (prosecution brief, pages 23 ‑ 27).
The day she died Andrew's mother called him and said that she needed to drop her damaged car off to a smash repair shop. She asked Andrew to 'babysit' his father, which he did. He noticed the same confused behaviour, including an inability to recognise Andrew. Andrew's mother returned at about 12.00 pm and took the accused home. He seemed happy at that time. Later that afternoon, Andrew's mother rang him and asked if he wanted anything from Bunnings because she and the accused were going there to get some plants. In the early evening Andrew was alerted to the presence of police cars and an ambulance at his parents' home. He rushed to the scene and became aware of what had happened (prosecution brief, pages 32 ‑ 38).
Ms Samantha Hewlett was a neighbour of the accused and the deceased. She was aware that the accused had Alzheimer's dementia and that his wife cared for him. She had noticed a deterioration in his condition in the last six months. She said that he had become increasingly confused and that his wife managed his entire daily routine from feeding him to administering medications and keeping his appointments (prosecution brief, page 3).
Ms Hewlett arrived home at about 5.30 pm on Monday 20 March 2017. As she got out of her car she could hear the front security door rattling at her neighbours' house. She went over and saw that the accused was struggling to open the door, though he had the keys in his hand. He did not recognise Ms Hewlett and when she asked him what was wrong he said, 'There's a little dead girl in the house'. He seemed confused and Ms Hewlett told him not to worry and that they would check it out. When she walked into the house she saw the deceased lying on her back in the study with a pool of blood to the left side of her head. She called for an ambulance and attempted cardiopulmonary resuscitation, but to no avail. The paramedics asked if she had seen a knife and Ms Hewlett asked the accused. He produced a knife and a pair of scissors. The knife had a wooden handle that appeared to have been partially submerged in water. These items were later recovered by police (prosecution brief, pages 6 ‑ 10, 60).

A post‑mortem examination established that the cause of death was sharp force penetrating injuries to the neck and chest (prosecution brief, page 57).
Detective Sergeant Roy Begg was the officer in charge of the investigation. He states that whilst in custody the accused made a number of unsolicited remarks including 'I've killed her' and 'I've done a terrible thing'. It was apparent to police that the accused was unable to understand the caution issued to him and accordingly he was not formally interviewed (prosecution brief, page 59).
Detective Sergeant Begg states that a full forensic examination of the home address was carried out. There was no evidence of any person other than the accused and the deceased having been present in the house at the time of the incident. There were no signs of forced entry. There was some literature relating to respite care on an office desk in the study where the deceased was found. The kitchen sink had water in it and the deceased's spectacles were folded on the drainer as if they had been washed and left to dry. At the time he was arrested the accused was wearing a pair of shorts. A blood spot was found on the shorts that was found to have a DNA profile that matched that of the deceased. All neighbouring properties were visited by the police but no other residents had seen any strangers in the area or anything untoward. A search was also carried out of the surrounding area with no trace of any possible weapon being found (prosecution brief, page 60).
In my view, the available evidence establishes a strong circumstantial case that the accused was responsible for stabbing and killing the deceased. The reasons for such violent behaviour cannot be conclusively determined, although there is some evidence to suggest that the accused was aware that the deceased was making inquiries regarding respite care and that he was unhappy about this.

The nature and circumstances of the alleged offence

The offence with which the accused is charged is murder contrary to s 279 of the Criminal Code. The circumstances of the commission of the alleged offence have been described above. Clearly murder is a very serious offence.

Personal circumstances

The accused is now an 88‑year‑old man with advanced dementia. He and the deceased were married for 56 years. Other than the one incident that occurred in 2016, there is nothing to suggest that the relationship between them was anything other than a happy one.
The accused's present state of health has been described as frail. He has an underlying heart condition, with a pacemaker. His advanced dementia has further deteriorated since he was charged. He has become less active and requires constant care and assistance to deal with even the most basic activities. Dr Woo said in his evidence that the level of care that he now requires can only be provided in a high‑dependency secure dementia facility. There are two such facilities that are suitable and the accused would be waitlisted for both of them pending the outcome of the hearing. However, it is understood that neither of those facilities is an authorised hospital or a declared place for the purposes of the Act. This means that if a custody order was made the only option would be for the accused to be detained in a prison. Dr Woo said that he would be highly vulnerable in such an environment given his age and advanced dementia. It is highly unlikely that he could receive the level of care and treatment that he requires in a prison (ts 11 ‑ 17).
In regard to the risk of harm to others, Dr Hall noted in his report that the accused's dementia has now advanced to the extent that he requires management in a secure residential facility for the rest of his life, irrespective of whether he was charged with any offence. In such an environment he is considered to be at low risk of serious harm to others. Although he may exhibit bouts of aggression, these will be manageable in a supervised care setting. Dr Hall also noted that as the disease advances the accused's ability to interact with his environment and the people in it will progressively reduce to zero (psychiatric report dated 25 May 2017, page 5).
Dr Woo said in his evidence that neither a prison nor an authorised hospital would be an appropriate place for the accused. Authorised hospitals are for the treatment of acute mental illness and are not suitable to accommodate people with dementia who require long‑term care. He would be highly vulnerable in such an environment. Whilst there were some early incidents of aggressive behaviour, Dr Woo said that since that time there had been a deterioration in the accused's condition and that he was now well managed. A secure dementia facility would have a higher level of security than is now the case at the Banksia Ward. Dr Woo said that as the dementia progresses the risk of further violence, which is already extremely low, would only further decrease. This is because for the remainder of his life the accused will need to be under the close care of other people. He will require constant supervision by people who know him and how to manage his behaviour. Dr Woo stated that the accused's risks are now mostly medical in that as his dementia progresses he will become more unable to care for himself, less active and hence more frail (ts 16 ‑ 18).
Gary Huggins gave evidence at the hearing that he has obtained an order from the State Administrative Tribunal appointing him the legal guardian for his father. He has visited his father at the Banksia Ward and confirms the deterioration in his father's condition. He accepts the medical advice and as the guardian intends to ensure that his father is placed in a secure high‑dependency dementia ward as soon as a position becomes available. He accepts that it would not be possible for his father to live in the community again and that there are no circumstances in which he would permit that to occur (ts 20 ‑ 22).

The public interest

There is a public interest in ensuring that the accused would not be a risk to the safety of others. This includes not only members of the public, but also others with whom he would reside in a secure dementia facility (or indeed a hospital or prison). Dr Woo said that this risk would be best managed in a secure dementia facility where the accused could be supervised and treated to manage his behaviour. Steps could be taken in the facility to ensure that he did not gain access to any knives or dangerous implements. However, the deterioration in his condition reduces this risk in any event.
There is also a public interest in ensuring that a person who is not mentally competent is humanely treated. If a custody order was made the likelihood is that the accused would be placed in a prison. Given his age and mental condition, it is probable that he would be distressed in such an environment and highly vulnerable to harm from others. It is unlikely that he would receive the level of treatment and supervision that he requires. No useful purpose would be served by such an outcome.

Conclusion

Having regard to the factors referred to above I was satisfied that it was not appropriate to make a custody order in respect of the accused. If such an order was made he could not be detained in an authorised hospital because his dementia is not treatable. He would not be suitable for placement in a declared place because the information available was that the only such place was established to house younger and physically fitter people and could not provide the level of supervision and care that is required. This would leave only a prison. Due to his age and advanced dementia a prison would be entirely inappropriate. The accused would be highly vulnerable in such an environment and unlikely to receive the level of specialised care that he now requires.
Had the option been available I would have considered making a conditional release order in order to ensure that the accused remains in an appropriate dementia facility. However, in this case there is no realistic risk of him returning to live in the community given the medical evidence and the clearly expressed views of his family. I am prepared to accept that, in the circumstances of this case, the accused will be placed in a secure dementia facility. That will occur irrespective of any formal requirement to do so, that is fortunate, since on the present state of the law I have no power to impose such a requirement.
For these reasons, on 14 August 2017, I made the following orders:
1.The charge is dismissed.
2.The committal is quashed.
3.The accused is released.