The State of Western Australia v MDW
[2021] WADC 113
•24 NOVEMBER 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: ALBANY
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MDW [2021] WADC 113
CORAM: STAUDE DCJ
HEARD: 16 & 17 NOVEMBER 2021
DELIVERED : 24 NOVEMBER 2021
FILE NO/S: IND ALB 61 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
MDW
Catchwords:
Criminal law - Evidence - Admissions made in police interviews - Application for discretionary exclusion - Unfairness - Whether suspected delusional disorder at time of interview impaired accused's ability to understand police caution - Whether suspected delusional disorder renders admissions unreliable
Legislation:
Nil
Result:
Application for exclusion of evidence of interviews dismissed
Representation:
Counsel:
| The State of Western Australia | : | Mr G Huggins |
| Accused | : | Mr B G Illari |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Sonia Anderson Lawyer |
Case(s) referred to in decision(s):
Cleland v The Queen (1982) 151 CLR 1
MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Williams (1992) 8 WAR 265
Van der Meer v The Queen (1988) 62 ALJR 656
STAUDE DCJ:
Introduction
The accused is charged with two counts of indecently dealing with a child who is a lineal relative under the age of 16 years (counts 1 and 3), five counts of indecently recording a child who is a lineal relative under the age of 16 years (counts 2, 4, 5, 6, and 7), and two counts of possession of child exploitation material (counts 8 and 9).
The charges arise from the execution of a Criminal Investigation Act 2006 (WA) (CIA) search warrant at the accused's house in Orana, Albany on 5 March 2020 where police located a Samsung mobile phone and a Nokia mobile phone. On the Samsung phone police found two video files that depicted his daughter allegedly being indecently touched. Other images and videos were found on that phone that depicted the child, as well as images and videos of others that constitute child exploitation material. On the Nokia mobile phone, the police found 4,452 images that are said to constitute child exploitation material. On 5 March 2020 the accused voluntarily participated in audio-visually recorded interviews at his home and at the Albany Police Station.
The accused's application is for an order that the evidence of the two interviews that were conducted and recorded on 5 March 2020 be excluded from the State case in the exercise of the court's discretion on the grounds of unfairness.
The interviews
The accused was interviewed as an arrested suspect at the time of the search and later at the Albany Police Station. In each of the interviews the accused admitted that he possessed the two mobile telephones. However, he denied that he knew of the child exploitation material on the phones or of the videos depicting his daughter on the Samsung phone. He admitted to knowledge of the occasions of the incidents involving his daughter that are depicted in the videos, but denied recording them.
At the commencement of each of the interviews the accused was given his rights as an accused suspect and was cautioned that he did not have to answer any questions. He indicated an understanding of the cautions when they were administered. In fact, he was cautioned on four occasions. The first (not recorded) occurred when he was initially arrested at his home and was acknowledged when the video commenced. The second was administered at the commencement of the video recording of the execution of the search warrant. The third was given when, during the course of the search, he was questioned about cannabis plants found at his home, and the fourth when he was formally interviewed at the police station.
Throughout each of the recorded interviews (exhibit 3) I observed the accused to be calm and composed. He exhibited no signs of confusion, or lack of understanding of any of the questions and propositions put to him. The accused was able to express himself verbally. His answers are generally responsive. He appears bemused by questions and propositions that suggest wrongdoing on his part in a manner that is consistent with his denials. Although he makes a number of admissions of fact with respect to his mobile phones and internet access, he denies the allegations of offending put to him by the interviewers.
The principal evidential basis for the application is the opinion of Dr Jacques Claassen, a psychiatrist who assessed the accused on one occasion for a period of 90 minutes on 16 October 2021. His report is exhibit 1. In the accused's lawyer's letter requesting a report, Dr Claassen was asked, relevantly:
(5)What was the likely nature and severity of [the accused's] condition or symptoms in or around July 2019 - March 2020? Given the treatment or medication he was receiving at that time, how effectively was the condition likely to have been managed?
(6)In your opinion, given his likely mental state at the time of the police recordings, what would have been his ability to understand the police caution given to him and the questions put to him?
(7)At the respective times of the offences is he likely to have lacked the capacity to understand what he was doing or the capacity to control his actions or the capacity to know that he ought not do the acts alleged?
Relevant medical history
Dr Claassen was informed by a bundle of materials which form exhibit 2. Those documents include correspondence between the accused's general practitioner, Dr David Ward and his treating psychiatrist, Dr Piet Claassen, medical records from Albany Hospital, letters from Dr S Duffton, psychiatrist, to Dr Ward, and letters from Dr R Finlay, a psychiatrist, to Dr Ward.
It is not controversial that the accused first consulted Dr Ward in May 2019 for symptoms that were suspected to be of attention deficit and hyperactivity disorder (ADHD). Dr Ward referred the accused for psychiatric assessment to Dr Piet Claassen (no relation to Dr Jacques Claassen). Dr Piet Claassen wrote to Dr Ward on 3 July 2019 expressing the opinion that the accused suffered from the inattentive type of ADHD. He recommended pharmaceutical treatment in the form of dexamphetamine sulphate. The symptoms reported were of distractibility, inattentiveness, poor time management and a tendency to procrastination, as well as impulsivity, these symptoms affecting his ability to work satisfactorily as a mechanic. His wife reported that he had poor concentration. According to Dr Piet Claassen's letter, his parents attended with the accused and confirmed a longstanding history of distractibility and poor attention and concentration. There was a strong family history of ADHD.
Dr Piet Claassen reported to Dr Ward on 3 September 2019 that the accused had responded well to the stimulant medication. His attention span, distractibility, planning capacity, organisational skills and capacity to complete tasks had improved. He recommended that the dexamphetamine dose be increased from 40 mg per day to 50 mg. Dr Ward wrote to Dr Claassen on 26 February 2020 after seeing the accused that day. He reported that he seemed to be doing well. He had re-prescribed dexamphetamine.
Dr Piet Claassen next reported to Dr Ward on 20 March 2020 about two weeks after the accused had been arrested and interviewed. The accused was in a state of emotional distress having been charged with serious offences and his relationship with his wife appeared to be in turmoil. The accused's children were in the care of Department of Child Protection and Family Services (DCPFS) which added to his distress. He had not been working for eight months but reported that 'life had been clearer since he started using the dexamphetamine'. Dr Claassen reported that there was no evidence of psychotic symptoms caused by dexamphetamine. He thought that the accused was suffering an adjustment reaction in the context of major psychosocial stressors in his life. There was no evidence of a major depressive episode. He recommended counselling and ongoing treatment with dexamphetamine sulphate.
The accused presented at the emergency department of Albany Hospital on 14 April 2020 complaining of upper respiratory tract symptoms and delusional thoughts. According to the emergency department summary of 15 April 2020 the principal diagnosis was situational crisis.
Dr Scott Duffton, psychiatrist, reported to Dr Ward's practice on 16 April 2020 stating that he had reviewed the accused on consecutive nights at the emergency department. He stated:
He presented with URTI signs and was tested for COVID-19, results awaited. He was also presenting with over-valued/grandiose beliefs that he was Jesus and may have been responsible for the coronavirus. However, he retained some insight to these being odd and probably false. He was initially given quetiapine, and on his second presentation also given olanzapine.
When reviewed by telephone on 16 April 2020 the accused was noted to be very much more settled having slept well. He denied any delusional concerns or hallucinatory experiences and there was nothing in a conversation for over an hour to suggest ongoing psychotic symptoms. Dr Duffton reported that at worst symptoms may have represented a very brief psychotic episode precipitated by high levels of anxiety and poor sleep. The episode raised concerns as to the appropriateness of ongoing dexamphetamine use. In that respect Dr Duffton reported:
While [MDW] reports subjective benefit from dexamphetamine use, objectively this does not appear to have helped him either in a return to work, nor in maintaining a basic healthy living environment. In this context, ongoing use needs to be weighed for the propensity for developing psychotic symptoms and any objective benefits.
On 21 April 2020 Dr Ward referred the accused and his wife for relationship counselling. On the same date Dr Ward wrote to Dr Piet Claassen attaching Dr Duffton's report. In that letter Dr Ward mentioned that the accused had told him that his phone or social media account had been hacked. He also mentioned that there were various domestic and social issues, including the accused's wife possibly being involved in long term infidelity, as well as drug use on the part of each and DCPFS involvement with respect to the children due to neglect.
Responding to that letter, Dr Piet Claassen wrote to Dr Ward on 29 April 2020. He said that the accused appeared to have developed psychotic symptoms. He agreed that dexamphetamine sulphate treatment should be stopped. He said that a combined use of marijuana and dexamphetamine was contraindicated.
On 18 May 2020 Dr Russell Finlay from Great Southern Mental Health Service wrote to Dr Ward's practice having reviewed the accused. He stated:
The predominant thing about [MDW's] presentation is the fluctuations which were occurring. At times I wondered whether he was thought disordered. At other times, he spoke quite clearly and I formed the opinion that he spoke more clearly when dealing with non‑emotionally charged issues and appeared quite vague when dealing with emotionally charged issues or awkward questions. An example of this would be when we were talking about the evidence on his phone that the police have confiscated and on which they formed the basis of their allegations. [MDW] thought that his phone and computer might have been hacked but he was very vague about whether he had been to the bank to see whether his bank account had been interfered with, he had not changed any passwords and continued to use other phones, including in front of us without the least concern. This phone was provided by police after they took his phone as evidence. He wondered whether we were filming him but this never reached delusional intensity and barely reached the intensity of an over‑valued idea.
Dr Finlay noted that the accused had presented to emergency department a month before talking about being a religious deity and about whether he had caused the COVID-19 outbreak. He said there was 'certainly nothing in today's assessment that would indicate that this even approached a psychotic experience'.
The accused reported memory lapses. There was some suicidal ideation relating to the non-return of his children, but there were no other features of depression. He was still taking dexamphetamine. Dr Finlay stated that mental state assessment was noteworthy for the fluctuations, but otherwise normal. He stated:
In terms of the diagnosis, clearly malingering has to be a part of the differential diagnosis but I also considered a dissociative state or possibly brief psychotic experiences secondary to dexamphetamine, occasional use of marijuana and stress.
The accused was admitted as an involuntary patient to the Albany Hospital psychiatric unit on 8 June 2020. He was an inpatient for 15 days. The presenting history was recorded as follows:
41-year-old male admitted for deterioration in mental state and trying to jump out of a moving car. Patient has been seen by community team in the last two months since his ED presentation on 15/04/2020. Apparently deterioration in mental state since patient's children were taken away by DCP on March 6th. Decreased sleep and appetite. Presenting as confused about some issues and quite clear about other things. Admitted on MHA as patient did not have capacity to make reasonable decisions.
His mental state on admission was noted as follows:
Patient was quite confused and thought disordered. Talking about wanting to go home, find his son, Jesus delusions. Disoriented to day, date and time, did not know how many children he had. Judgement and insight - very limited.
It was reported that over a few days he started to become less confused and more settled. He became compliant with medications and cooperative with staff and other patients and was eventually discharged into his wife's care.
A report from Dr Piet Claassen dated 15 June 2021 indicates that when he saw the accused for the last time on 20 January 2021 he changed his diagnosis from ADHD to a mild obsessive compulsive condition. Stimulant medication was contraindicated as he would most likely develop delusions.
Evidence of Dr Jacques Claassen
Coming then to Dr Jacques Claassen's report, I note at the outset that in addition to the materials comprising exhibit 2, Dr Claassen had the opportunity of viewing the audio visually record interviews. This occurred after he had provided his report. At the time of his assessment of the accused he had only the transcripts of the interviews.
At the commencement of his report, Dr Claassen recorded that he explained to the accused the nature and purpose of the report and that the usual doctor-patient confidentiality did not apply. He said at par 7:
The accused understood the above notification and its implications. He was able to repeat the information back to me, in his own words, and agreed to the assessment proceeding.
Dr Claassen did not suggest that the accused had any difficulty understanding that information.
Dr Claassen went on at par 10 to state:
It is important to recognise the singular and cross-sectional nature of my assessment of the accused. Ideally, serial assessments of a person, over time, provide the most comprehensive and accurate formulation of their mental health status. For these reasons, there may be aspects to his presentation unknown to me which I did not consider in my understanding of his mental health status as it relates to the questions you have asked.
Dr Claassen noted at par 14 that the accused had been diagnosed with ADHD. He agreed with that diagnosis. He also noted at par 15 that the accused had previously met diagnostic criteria for substance use disorder (cannabis). He said that, based on the accused's self-report, the disorder was in remission, but he was unable to verify the accuracy of his report of current use of cannabis. Dr Claassen reported at par 64 that the accused told him that he had last consumed cannabis in 2019 before his diagnosis of ADHD. When questioned, Dr Claassen accepted that he was aware from the transcript of the search video that the accused admitted growing cannabis for recreational use. He admitted that he did not interrogate the accused as to his history in that regard.
At par 16 Dr Claassen said that it was his opinion that the accused might suffer from an untreated psychotic spectrum disorder, namely Delusional Disorder - persecutory subtype. At par 17 he said that it was his opinion that the accused likely experienced psychotic symptoms around the time of the alleged offending and the interviews with the police.
At par 18 Dr Claassen expressed the opinion that '[the accused] did not fully comprehend the caution police provided him with or the potential impact of the statements he made'.
At par 19 he expressed the opinion that irrespective of the nature and severity of his mental health symptoms, they did not operate to such an extent that they rendered him incapable of appreciating the wrongfulness of his alleged actions.
At issue in voir dire (though not determinative) is Dr Claassen's opinion that the accused did not fully comprehend the police cautions when he participated in the two interviews.
Dr Claassen made it clear in his evidence that his diagnosis of Delusional Disorder was a tentative diagnosis. He used the expression 'might suffer' to indicate that it was not a certain diagnosis. Similarly, he used the expression 'likely experienced' with respect to psychotic symptoms. Curiously, although Dr Claassen concluded that the accused did not fully comprehend the caution, his evidence was that, when asked, the accused could not remember hearing the cautions (ts 111). There is nothing in the report that indicates that the accused was interrogated about the circumstances of the interviews at all. In fact, Dr Claassen did not document any history given by the accused of what occurred on 5 March. It is significant, in this context, that the accused did not give evidence in the voir dire.
Dr Claassen said he thought that if the accused was suffering from symptoms of Delusional Disorder then those symptoms would have impaired his ability to be attentive to the police when the caution was administered (ts 101). He said:
So it is my clinical opinion that at the time of the search warrant being executed and the police interviews at - or police interview, singular, at Albany police station, that [the accused] experienced psychotic symptoms. The psychotic symptoms would have impaired his capacity to fully attend to information being provided to him to withstand [sic ‑ understand] and assimilate the information and to appreciate its implications, if that makes sense.
Dr Claassen went on:
So, if an individual experienced psychotic symptoms, they can be preoccupied, to the extent that they're fully attending, listening, assimilating information being provided to them. So other than the individual responding, 'yes', or 'aha', or 'yep', as the accused did on a number of occasions, that doesn't evidence that he, actually, fully heard and understood the information that was provided to him. It is my opinion that the psychotic symptoms prevented him from experiencing that depth or that level of understanding.
When it was pointed out that the accused was cautioned on at least four occasions, Dr Claassen said that this may have made a difference to his ability to comprehend the caution, but he said there was no verification of what he understood the cautions to mean in that he was not required to repeat the information back. He said (ts 102):
It is my opinion that his being provided with the cautions on several occasions may not have necessarily facilitated the level of understanding that one would require for a person to fully appreciate - comprehend the potential implications.
Dr Claassen stated in his report and in evidence that some of the responses the accused gave in his interviews were unusual. When he was issued the first caution and it was broken down in sections his responses included 'yep', 'aha', 'I'm not sure', 'excellent' and 'oh perfect, yeah'. Dr Claassen thought these responses were odd, but did not give any other clinical significance to them.
Dr Claassen noted that in the part of the search video that related to the discovery of cannabis plants at the rear of the house, the accused was asked if he remembered his rights, and said 'I do, I have the right to remain silent'. (It is not in dispute that he said words to this effect, though perhaps not these precise words.) Dr Claassen said that this did not alter his opinion that the accused did not have the ability to fully understand the caution 'or appreciate the implication of the statements he might make' (report page 17). Dr Claassen acknowledged that the accused at the beginning of the formal police interview responded 'yeah' and 'right' when the caution was given, but observed that he was not asked to verify his understanding or repeat the information in his own words.
He also observed that the accused erroneously confirmed his ethnic identity as Aboriginal which also struck him as odd. That confirmation was in fact given in the formal interview (ts 8), but it is not explained at all by the evidence. It is not apparent from Dr Claassen's report or his testimony that he made any enquiry of the accused in respect to this response. It is also not apparent from Dr Claassen's report or his evidence that the accused reported any misunderstanding or lack of comprehension of the police cautions.
Dr Claassen's report contained a summary of the accused's psychiatric history as disclosed in the reports and records to which I have already referred. It is apparent from that history that the accused did not present any symptoms that were thought to be of a psychotic nature until he attended at the Albany Hospital emergency department on 14 and 15 April 2020. Prior to that time neither Dr Ward nor Dr Piet Claassen had recorded any such symptoms, Dr Piet Claassen recording on 20 March 2020 some two weeks after the accused's arrest that he presented with 'an adjustment reaction in the context of major psycho-social stressors in his life'.
At par 45 Dr Claassen reported that the accused described his mental health status as 'up and down due to internal and external stuff'. He denied feeling depressed, tearful or sad. He denied the experience of unusual or psychotic thinking. He denied the presence of perceptual disturbances. There was no family history of psychiatric disorder other than ADHD.
On mental state examination, Dr Claassen found that the accused's thought form was 'linear, ordered, coherent and goal directed for most of my assessment', but when allowed to speak freely the accused 'demonstrated a tendency to speak about one specific topic (namely, his wife's longstanding and extensive infidelity) and became difficult to follow'. At these times 'he lost focus and could not recall the original question asked of him'. He said the accused responded negatively to a range of screening questions eliciting acute psychotic thought content, including grandiose delusions, religious delusions, referential ideation and delusions of control (passivity phenomena). He said it was striking that he repeatedly and without prompting returned to the topic of his wife's infidelity. He stated at par 69:
He expressed concern that some of her ex-lovers may mean him harm. He used the word 'conspiracy' on several occasions. He expressed the belief that his current legal situation was the consequence of 'identity theft, I've been hacked, being smeared, so that I can get kicked out of my house so that my wife and her lovers can move in'.
Dr Claassen also noted that the accused reported that on the day of the police search he noticed 'paparazzi' in the local area taking pictures of him.
Dr Claassen's opinion was that the thoughts were 'of delusional intensity given his fixation on the topic and adamant belief they were true'.
The Folstein Mini-Mental State Examination was administered. The accused's score was within normal range suggesting intact cognitive function.
Dr Claassen stated:
[77]Although I have only assessed [the accused] on one occasion, I am concerned that he suffers from an untreated psychiatric disorder, namely Delusional Disorder - persecutory subtype.
[78]Delusional Disorder is a chronic psychiatric condition in which the individual experiences delusions for at least one months' duration. Apart from the impact of the delusions or its ramifications, the person's functioning is not markedly impaired. Overtly odd or bizarre behaviour is absent. Hallucinations, if present, are not prominent and mostly relate to the delusional theme (for example, the sensation of being infested by insects associated with delusions or infestation). In general terms, the criteria to diagnose schizophrenia are not met.
[79]The persecutory subtype of Delusion Disorder is characterised by a central delusional theme that the person is being conspired against, cheated, spied on, followed, poisoned or drugged, maliciously maligned, harassed or obstructed in the pursuit of long term goals.
Dr Claassen made his diagnosis according to the Diagnostic and Statistical Manual of Mental Disorders (5th edition) of the American Psychiatric Association which defines delusion as 'a fixed belief that is not amenable to change in light of conflicting evidence'.
As to the onset of the disorder, Dr Claassen said (ts 15):
There is documentation that by mid-April 2020 [the accused] had developed psychotic symptoms. These symptoms appeared to have emerged in response to dexamphetamine treatment, a phenomenon which can occur. It is possible that undisclosed cannabis use contributed to the emergence of psychotic symptoms.
…
It is likely that [the accused] gradually developed psychotic symptoms prior to mid-April 2020. Unfortunately, it is essentially impossible to conclusively know whether this was the case or not. …
Dr Claassen acknowledged that the accused's father told him that the accused had complained of his phone being hacked one to two months prior to being charged on 5 March 2020 and that he had sought assistance from Optus. Dr Claassen nevertheless maintained the view that the belief that his phone was hacked was delusional. He said (ts 16):
[T]he information, if correct, supports my clinical opinion that [the accused] had developed psychotic symptoms prior to mid‑April 2020 (when these symptoms were first documented).
Dr Claassen was also told by the accused's father that the accused's wife had engaged in extra-marital affairs over the years, yet Dr Claassen maintained that the accused's beliefs were delusional. I asked him to explain this (ts 97):
So two key components. So it was confirmed that [the accused's] wife, had, in fact, engaged in extra-marital relationships. What swayed me to interpret the information as delusional, was not that piece of information but [the accused's] affiliated beliefs in terms of the intention of his wife behind the extra-marital affairs, to somehow have an (indistinct) placed out of the home (indistinct). Linked with that was the belief that [the accused] expressed on several occasions, that he was at the centre of a conspiracy (indistinct). In addition, I verified with [the accused's father] that, indeed, his daughter-in-law, the accused's [wife], had engaged in extra-marital affairs. So it is not that key piece of information which swayed me. It was the fact that [the accused's] interpretation of the intentions behind that was - or in my opinion, is delusional.
…
When I assessed [the accused] I was prompted to the possible presence of delusional thought content, by him returning to a central theme. That occurred in an unprompted, unprovoked manner. The theme was his wife's infidelity. It is not the wife's infidelity that I interpret as [the accused's] being delusional about. It is the affiliated beliefs around that. So [the accused] told me that he believed that he was at the centre of a conspiracy which his wife was undertaking, in order to have him removed from the home. Linked with that, [the accused] also indicated on several occasions that he was at the centre of a conspiracy, and he also spoke about his personal (indistinct) etcetera. So it's the combination of those beyond the (indistinct) wife's infidelity, that I assessed as delusional.
Dr Claassen understood the conspiracy to be that the accused's wife was conspiring with ex-lovers in order to discredit him, by facilitating the current legal situation so that he could be removed from the house (ts 98). He was blaming his wife and her lovers for the fact that he was being prosecuted. When I asked Dr Claassen why that belief was delusional he said:
Your Honour, I - in combination with the fact that he spoke about his devices being hacked, in combination with the fact that he told me on the day when the police search warrant was executed, that he, you know - there was paparazzi across the road taking pictures of him. All of these factors combined, suggested to me that there was psychotic (indistinct) verified with [the accused's father] whether there was any possible reason that his wife might, in fact, seek to have his son removed from (indistinct). In [his father's] view was that would be an unusual intention given the squalid state. So that lead me to believe that the thoughts he was expressing in that regard, were delusional.
Dr Claassen said that it would not be obvious to a lay observer that the accused was suffering from a Delusional Disorder. He said the hallmark of a Delusional Disorder is the non-bizarre quality of the delusional material. At ts 105 he said:
So, in fact, the delusional material can be quite plausible, and outside of the (indistinct) delusional theme, the person's functioning is not significantly or markedly impaired. So in other words, a person who suffers from schizophrenia, where there's odd or bizarre behaviour, hallucinations, delusions and disorganised speech, that individual looks and sounds as if there is something the matter with their mental health. That's quite different from delusional disorder where unless the delusional material somehow introduce (indistinct) conversation, the individual can come across as otherwise wholly and mentally well.
In cross-examination it was put to Dr Claassen that Dr Piet Claassen had changed his diagnosis from ADHD to mild obsessive‑compulsive disorder (OCD). Dr Claassen said he disagreed with that diagnosis (ts 107). He said that in the course of his clinical assessment there were no signs or symptoms that were consistent with OCD. He agreed that a diagnosis of mild OCD was inconsistent with a diagnosis of delusional disorder and the latter diagnosis should not be made if a diagnosis of OCD were available.
Dr Claassen agreed that he had been informed that the accused denied taking the videos of his daughter that were found on the Samsung phone. He also agreed that the explanation given to the police for these items being on his phone was that his phone was hacked. Dr Claassen agreed that someone in the accused's position would be keen to maintain that his phone must have been hacked in order to explain how the compromising material came to be on it. When asked why, if that were the case, he considered that belief to be a delusion, Dr Claassen said (ts 110):
So, again, I am going to, with all due respect, refer to the fact that I have conducted multiple cross-sectional mental state examinations of a range of individuals across three continents for approximately 20 years. The manner in which [the accused] presented to me - so it's not just about the one single statement or the word 'conspiracy' that he used, it is about the entire clinical impression I formulated whilst I examined him. This is my skill in which I have trained. And as I have said before, it's a clinical opinion I'm offering you for the court to consider.
At the conclusion of re-examination I asked a couple of questions of Dr Claassen to clarify and confirm my understanding of his opinion. At (ts 123):
[I]f [the accused] were suffering symptoms of a delusional disorder at the time that he was interviewed by the police, then those symptoms may have impaired his ability to understand the police caution?---That is my opinion, yes, your Honour.
That's because those symptoms of a psychotic nature would have impaired his ability to concentrate or attend to the police? --- Correct, your Honour. That's my opinion.
And you saw the two videos. Did you discern anything in those videos that indicated to you that throughout the interviews, apart from those observations you made in your report, throughout the interview he showed any sign of not understanding the questions that were put to him? ---There were no obvious signs to me, your Honour, which were consistent with my examination of him on 16 October 2021 after which I concluded that he suffers from a delusional disorder.
Yes?---I know it's difficult to reconcile, but in response to your Honour's question, no, there was nothing obvious to me when I viewed the recordings.
Would you have expected if [the accused] were suffering symptoms of a delusional disorder that you would have difficulty in responding to the police over the course of an extended interview in a - - - ?---Yes, I would have.
In a rational way, yes?---Yes.
Evidence of accused's father
The accused's father IRW gave evidence that in the last quarter of 2019 he had observed his son to become more confused when he spoke with him (suggesting that he was confused before that time, but less so). His replies would be tangential and off the point. He was aware that his son was taking dexamphetamine as a medication. In early 2020 his condition was getting worse. Some of the things that he said were not making sense and his home was becoming more messy than it had been.
IRW said that prior to March 2020 the accused had told him that his marriage was in trouble and that he had to stop his wife's boyfriends from climbing over the fence and getting into the house. The accused told him that he woke up one night and there was a lover of his wife in the bedroom standing above him. He also said that his phone was being hacked. IRW said that he would be worried about the accused's physical state if they were true, and his mental state if they were not. The accused's comments were very different from those he made prior to 2019. When he saw the accused after his arrest he observed him to be stressed and bewildered. His confusion was worse.
IRW said that the accused had had problems with wife's infidelity for years. In cross-examination (ts 128):
When he was showing concerns about it would you say he was stressed?-‑-I would more, like, call it stressed, yes.
And would you say he was getting more stressed towards the end of 2019 towards the beginning of March 2020?---I don't know I would call it stressed. I would really call it confused and it was different how we would discuss things and how he would wander off. You know, the answers weren't what I was expecting. They were different than when he was talking about his wife's infidelity.
IRW recalled going to see Dr Piet Claassen with the accused in July 2019 and again in September that year. The reason for going to see the psychiatrist had been that the accused had trouble concentrating. On the latter occasion he told Dr Claassen he had not seen any improvement since his son was put on dexamphetamine medication. He had not noticed his son to be confused in July or September 2019.
He said that the accused started complaining that his phone had been hacked in the last quarter of 2019. It occurred over a period of time. He did not know the reason why the accused thought his phone was being hacked. He recalled that the accused told him he had been to Optus about it. This was in late 2019 early 2020.
Evidence of Dr David Ward
Dr David Ward is the accused's general practitioner. He first saw him in May 2019 when he referred him to Dr Piet Claassen for assessment of suspected ADHD. He recalled that the accused was originally prescribed 40 milligrams per day in 5 milligram tablets. This was increased to 50 milligrams per day after the accused told him that he was taking up to 10 tablets a day and seemed to be doing quite well.
On 26 February 2020 he found the accused to have improved in that he seemed more focused, a little more relaxed and doing better at work. When he saw the accused in April 2020 he was not as well as he was in February.
Dr Ward was aware of the accused's admissions to hospital in April and June 2020. He thought it was possible that he had developed an adverse reaction to dexamphetamine. In cross-examination he agreed that other substances such as cannabis could also cause an adverse reaction. Dr Ward said that he did not recall the accused appearing to be confused in May 2019 or February 2020. On the latter occasion his presentation gave him no concerns about his mental status. He did not appear confused. His responses were not tangential.
Resolution
The defence does not contend that the accused's admissions in the two interviews were not made voluntarily. (In any event, I am satisfied that the accused's responses to the questions asked of him were made in the exercise of a free choice whether you speak or remain silent.) It was not put as a basis for exclusion that by virtue of impaired capacity due to a mental disorder the accused has been denied the opportunity to challenge the voluntariness of his admissions.
Nor is the court's discretion to exclude invoked on the basis of improper conduct on the part of the police. No criticism is made of the police officers who conducted the interviews. No public policy considerations arise.
The defence position was put by counsel in closing, as follows (ts 148):
[T]he submission of the applicant … is that there is a probability that, at the time of the interviews on 5 March 2020 [he] was suffering from a delusional disorder of some psychotic dimension. … And the submission is that, if he were suffering from a delusional disorder, he would be unlikely to fully comprehend the caution and would not necessarily have displayed outward signs of confusion, but that would certainly – if that were the case, certainly have affected his ability to reliably answer the questions put to him during the interview itself.
The State's position is that the evidence establishes no more than a mere possibility that the accused was suffering from a delusional disorder on 5 March 2020, and does not establish that, if he did, his ability to understand and respond to the cautions that were administered to him was impaired to such an extent as would render his admissions unreliable.
The question for the court is whether the evidence establishes circumstances affecting the accused's mental capacity at the time of the interview that would make it unfair to the accused for the evidence of his admissions to be admitted. Neither side cited any authorities dealing with such an issue. I note, however, that in R v Williams (1992) 8 WAR 265, the Court of Criminal Appeal refused a Crown appeal (from a directed acquittal) where a confession was excluded on the grounds that the accused was highly intoxicated when interviewed and was otherwise mentally impaired due to brain injury and low intelligence. In that case, having considered MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, Cleland v The Queen (1982) 151 CLR 1, and Van der Meer v The Queen (1988) 62 ALJR 656, the court (Rowland & Owen JJ, Franklyn J dissenting) held that the trial judge's discretion did not miscarry as the accused was unfit to be interviewed and was deprived the opportunity to challenge the voluntariness of his admissions, this fact bearing directly on his right to a fair trial (277). Different considerations arise in the present case.
Most commonly the exercise of the inherent jurisdiction to exclude evidence of admissions where it would be unfair to the accused for the evidence to be used against him arises in circumstances where the admissions are said to have been obtained by improper means, or in circumstances that cast doubt on their reliability: R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 [52]. Although unreliability is a relevant consideration, it is not decisive. As the majority observed in R v Williams at (273), there may be cases where an otherwise reliable account will be excluded due to other factors, if they show such unfairness as might jeopardise the accused's right to a fair trial (at (274)).
Where exclusion on the grounds of unfairness is sought, the accused bears the onus of proving circumstances that would justify an exercise of the discretion in his or her favour: MacPherson v The Queen.
The evidence of Dr Claassen does not go as far as casting doubt on the reliability of the accused's admissions. The accused did not give evidence. Dr Claassen did not express any opinion in relation to the accused's capacity to respond to the questions asked of him. Indeed, the hypothesis advanced by Dr Claassen was that if the accused was suffering from symptoms of a delusional disorder on the day of the interviews then it may have impaired his ability to understand the police caution and its ramifications.
Significantly, Dr Claassen said that it was 'essentially impossible' to know whether the accused developed psychotic symptoms before mid‑April 2020, although he thought it was likely. While the accused was observed to exhibit delusional symptoms when he presented at the Albany Hospital emergency department on 14 April 2020, no such symptoms were noted by Dr Piet Claassen when he saw the accused on 20 March 2020 some two weeks after the date of his arrest and no psychotic symptoms were ever noted by the treating general practitioner, Dr Ward.
Even on 14 April 2020, the Albany Hospital psychiatrist Dr Duffton recorded 'possible brief psychotic symptoms related to high levels of anxiety associated with sleep deprivation and dexamphetamine use. While Dr Duffton noted that the accused presented that day with 'overvalued/grandiose beliefs that he was Jesus and may have been responsible for the coronavirus', when Dr Duffton spoke with the accused over the course of one hour on 16 April 2020 there was nothing to suggest ongoing psychotic symptoms. Dr Duffton thought at worst the symptoms 'may have represented a very brief psychotic episode precipitated by high levels of anxiety and poor sleep'. There was no diagnosis of delusional disorder.
Then, there are the reports of Dr Finlay in May 2020 who suspected malingering, but otherwise 'a dissociative state or possibly brief psychotic experiences secondary to dexamphetamine, occasional use of marijuana and stress'.
The Albany Hospital discharge summary dated 22 June 2020 indicates that the accused was confused, but there was no diagnosis of delusional disorder. The discharge summary records that he was prescribed Risperidone for an 'acute stress reaction'. The discharge summary cited 'multiple psycho-social stressors, including charges against him'.
Dr Jacques Claassen did not assess the accused until October this year, some 19 months after the date of the police interviews. What caused Dr Classen to diagnose possible delusional disorder were certain features of the accused's presentation during his assessment. He considered the accused's belief that his wife was conspiring with her ex-boyfriends to harm him by bringing about this prosecution in order to get him out of his house was a delusional belief. He also thought that the accused's belief that on the day of the police search there were paparazzi pictures of him was delusional. It struck Dr Claassen that the accused returned repeatedly and without prompting to the topic of his wife's infidelity.
It was not clear from Dr Claassen's report or his evidence that he challenged these beliefs. He accepted that there was a factual basis for the accused's beliefs that his wife had been unfaithful, but he thought it was significant that the accused believed that she and others conspired or were conspiring to harm him.
He also thought that the accused's belief that his phone had been hacked was delusional, even though such a belief would be consistent with his position that none of the child exploitation material the subject of counts 8 and 9 was acquired by him or to his knowledge. Furthermore, as the accused's father said in evidence, and had told Dr Claassen, the accused reported to him a belief that his phone had been hacked one to two months before being charged.
While Dr Claassen thought this supported his view that the accused had developed psychotic symptoms before mid-April 2020, he did not give reasons for concluding that the accused's belief that his phone was hacked was delusional.
While the court is not in a position to dispute Dr Claassen's diagnosis at the time of his assessment in October this year, in deciding whether the accused was delusional 19 months earlier and for that reason impaired in his capacity to understand a police caution, the court views the basis of Dr Claassen's opinion in that respect as somewhat fragile.
Dr Claassen relied upon certain features of the answers given by the accused. He cited a number of responses to the cautions administered to the accused as casting some doubt upon his understanding of the cautions, and also pointed to the accused identifying as Aboriginal. Yet, he did not interrogate the accused in relation to his actual understanding of the cautions, or in relation to his ethnic identity.
Having read the transcripts of the police interviews, Dr Claassen was concerned (report page 17) 'about [the accused's] overall level of comprehension, and the potential implications of his responses'. His concerns appear to have been unchanged as a result of viewing the recordings of the interviews, yet no other observations were made by Dr Claassen, and there are none that the court has made, that suggest an inability to understand and respond to the questions asked, even though the accused's responses at times can be seen to be somewhat tangential and off the point, consistent with what his father had observed in the preceding weeks.
Having considered the expert evidence, I am not persuaded that it demonstrates any more than a possibility that the accused at the time of the interviews was experiencing delusional symptoms in the form of irrational beliefs that his wife and others were conspiring to harm him and that his phone (and perhaps his computer) had been hacked. His belief that paparazzi were taking pictures of him is consistent with an exaggerated report of the circumstances of the police search on 5 March 2020, the video recording of which shows that the accused was kept outside his house for a period of about 90 minutes before the formal interview in connection with the search was commenced. It would not be unlikely in my experience that passers-by may have been seen to take photos of him during that time.
So, while I am not able to dispute Dr Claassen's clinical diagnosis of delusional disorder reached on the basis of the accused's presentation on 16 October 2021 and his medical history, it is a tentative diagnosis. It carries limited weight in circumstances where the accused has an interest in maintaining that he believes that his wife and others have conspired to harm him by incriminating him, and that his phone has been hacked, when these beliefs are consistent with his denial of the charged offences.
Dr Claassen has accepted the accused's statements in relation to these beliefs uncritically in my view. Dr Claassen's opinion, reached initially on the basis of the transcripts of the interviews (but confirmed upon viewing the video recordings), that the accused may have been suffering a delusional disorder on 5 March 2020 that may have impaired his ability to understand the multiple police cautions that were administered that day, and their implications, has a fragile basis and lacks the degree of certainty required in order for it to be afforded real weight. In coming to this view I take into account the following:
1.The accused was under psychiatric treatment at the time of the interviews. He had not been diagnosed with any psychiatric condition other than ADHD. He had not been noted to suffer any psychotic symptoms. When seen two weeks after the date of the interviews by his treating psychiatrist there was no evidence of psychotic symptoms.
2.When seen at the Albany Hospital emergency department on 14 ‑ 15 April 2020 he was diagnosed as experiencing a situational crisis. His delusional thoughts were temporary and on 16 April 2020 there was no evidence to suggest ongoing psychotic symptoms. The delusional symptoms were seen to have been precipitated by high levels of anxiety and poor sleep.
3.When seen by Dr Finlay on 18 May 2020 he was not found to be delusional.
I have viewed the video recordings of the interviews. The accused can be seen to acknowledge and show an understanding of the cautions administered, even to the point of volunteering that he had the right to remain silent. I do not consider that any words that he used to acknowledge his understanding of the cautions could reasonably be interpreted as indicating the opposite. Moreover, during the course of two interviews that occurred over extended periods of time at his home and at the Albany Police Station he did not indicate in his demeanour or responses a lack of ability to understand what the police interviewers were putting to him in the way of questions and propositions. As Dr Claassen conceded, if the accused were suffering from symptoms of a delusional disorder at that time, one would have expected that he would have had difficulty responding to the police in a rational way. This was not evident, despite the features of his answers that I have mentioned.
The accused denied all allegations of wrongdoing that were put to him, or suggested. His admissions were made in respect of matters that he was unlikely to be confused about. I am not satisfied that there is any risk of unfairness due to unreliability.
The evidence does not disclose circumstances that would enliven a discretion to exclude the evidence of the accused's admissions, in the form of the video recordings of his interviews, on the grounds of unfairness. Accordingly, the application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Staude
24 NOVEMBER 2021
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