The State of Western Australia v Stubley [No 2]
[2011] WASC 292
•24 OCTOBER 2011
THE STATE OF WESTERN AUSTRALIA -v- STUBLEY [No 2] [2011] WASC 292
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 292 | |
| Case No: | INS:47/2008 | 24 OCTOBER 2011 | |
| Coram: | McKECHNIE J | 24/10/11 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Indictment quashed without a decision as to the guilt or otherwise of the accused Trial dates vacated and order for bail is discharged Accused released | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA ALAN JOHN STUBLEY |
Catchwords: | Criminal law and procedure Accused unfit for trial Whether criteria made out No new principles |
Legislation: | Criminal Code (WA) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
ALAN JOHN STUBLEY
Accused
Catchwords:
Criminal law and procedure - Accused unfit for trial - Whether criteria made out - No new principles
Legislation:
Criminal Code (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Result:
Indictment quashed without a decision as to the guilt or otherwise of the accused
Trial dates vacated and order for bail is discharged
Accused released
(Page 2)
Category: B
Representation:
Counsel:
Prosecution : Mr D L S Davidson
Accused : Ms A McGregor
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : Michael Tudori
Case(s) referred to in judgment(s):
Nil
(Page 3)
- McKECHNIE J:
How this decision comes about
1 The accused is a medical practitioner with a specialist qualification in psychiatry. Between 1965 and 2000 he had engaged in private practice as a psychiatrist, and from about 1966 until 1976 he also consulted as a psychiatrist at Royal Perth Hospital.
2 Between 1975 and 1978 the accused was alleged to have engaged in sexual activity with two women without their consent. Each was his patient at the time. The offences were alleged to have occurred in his consulting rooms during appointments scheduled for psychotherapy.
3 The accused was convicted after trial of six counts of rape, one count of attempted rape and three counts of unlawful and indecent assault. On 12 March 2009, he was sentenced to a term of imprisonment of 10 years backdated to 21 November 2008 with eligibility for parole.
4 The accused appealed against his conviction and sentence. On 3 March 2010, the Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence, reducing the total sentence to a term of 6 years' imprisonment. The accused sought and obtained special leave to appeal to the High Court.
5 Although the reasons were not delivered until 30 March 2011, the High Court made orders, following argument on 20 October 2010, that the appeal be allowed, the order of the Court of Appeal be set aside and in place ordered that the appeal to the Court of Appeal be allowed, the convictions to be set aside and there be a new trial. On the same date, the parties filed a consent order in this court and the next day, 21 October 2010, Jenkins J granted bail on conditions.
6 At status conferences since then the accused's state of mental health has been the subject of discussion.
7 On 25 August 2011, Murray J found that it would be appropriate to investigate the question arising as to the accused's mental fitness to stand trial and ordered that the accused be examined by a psychiatrist to be appointed by the court. Murray J also ordered that the matter should be tried out before a judge at a directions hearing to be conducted on 24 October 2011.
8 On 20 September 2011, Murray J appointed Dr Adam Brett, a consultant psychiatrist, to assess the accused's mental fitness to stand trial.
(Page 4)
The psychiatric report
9 On 10 October 2011, Dr Brett reported his findings to the court in a comprehensive report which I accept. Dr Brett made two caveats to his report. In some circumstances this would require a further adjournment to allow repeat neuro-cognitive testing. However, in view of the medical history and the accused's age, I do not consider such a step is necessary.
10 Dr Brett addressed the criteria set out in the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 9:
(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.
11 Dr Brett considered that the accused was capable of understanding in respect to (a), (b), (c) and (d). As to (e), Dr Brett's opinion was:
I believe that he would have difficulty in following the course of the trial. I believe that this would be due to his cognitive impairment, which is likely to be exacerbated by the stress of the court.
- He gave reasons for this opinion.
12 As to (f), Dr Brett's opinion was:
I believe that he would be able to understand the substantial effect of evidence presented by the prosecution in the trial. This is, however, contingent on the evidence being presented in a clear and steady way. He would find it difficult incorporating multiple bits of evidence at one time. I believe that he would understand single parts of the evidence, he would, however, have difficulty in incorporating that information with historical evidence, for instance from earlier in the trial. If he were giving evidence and having to incorporate new information, this would be a very difficult task. This is due to his cognitive impairment and his poor stress management.
(Page 5)
13 Dr Brett considered under (g), that in view of his opinion on (e) and (f), the accused would be unable to properly defend the charge: 'He may have difficulty adequately instructing counsel'. In Dr Brett's understanding, the initial trial had a number of complex issues and he thought the accused may struggle to follow it.
14 Dr Brett's opinion was:
1. Dr Stubley has a mental impairment as defined in Section 8 of the Criminal Law (Mentally Impaired Accused) Act 1996.
2. I believe that mental impairment is a mild unspecified dementia. Clinically this is likely to be a combination of Alzheimer's (given the family history and the course) and vascular type (due to imaging results and his thromboembolic disease). The extent of his dementia is complicated by his premorbid level of intelligence. Clinically he presents as less disabled than he actually is and his functioning is more disabled than his clinical presentation would suggest. He has had imaging and testing which confirms the mild dementia. Its progression, which appears to have occurred could be confirmed by repeat scans and repeat cognitive testing by Ms Vidovich. I understand that he became overwhelmed by anxiety in the MRI machine and this scan could not be performed.
3. He has an additional mental impairment, mild depressive disorder with associated anxiety. His depressive symptoms worsen with stress. He has multiple stressors including the legal case, his medical issues and his overall current situation, which he had not envisaged some years ago. His depression is being adequately managed. I believe that he would benefit from regular follow up by specialist mental health services, who could address both his depression and dementia.
4. I believe that because of his mental impairment he is unable to understand the criteria in Section 9 (e) and (g) of the Criminal Law (Mentally Impaired Accused) Act 1996.
5. These conclusions would be more robust if Dr Stubley had repeat neuro-cognitive testing that confirmed a deterioration since March 2011.
6. Additional information would have been helpful in collating this report but in the time frame was not available. This would have included the previous psychiatric reports, his neuro-imaging reports and reports from the memory clinic.
7. I do not believe that Dr Stubley's mental state will improve within 6 months, if anything, it is likely to deteriorate. It should be noted, however, if Dr Stubley was not facing these charges, his mood
- disorder would be much better and this would improve his cognition. Thus his mental state is dynamic and effected by numerous stressors and situations that will, by their nature fluctuate.
- 8. Dr Stubley has significant medical problems which would be exacerbated by stress.
The prosecution's concession
15 The prosecution accepts that the accused is not mentally fit to stand trial and will not become mentally fit to stand trial within six months. In the Director's submission, whilst the evidence against the accused is strong and the nature of the alleged offences and alleged circumstances of their commission are serious, there is no public interest in indefinitely imprisoning the accused without trial given that he is of no risk to the community considering the date and the circumstances of his alleged offending, his advanced age, his poor health and mental condition.
The accused is mentally unfit to stand trial
16 In the light of the report of Dr Brett, I am satisfied on the balance of probabilities, that the accused is mentally unfit to stand trial and is not likely to become mentally fit within a period of six months.
17 Under the Criminal Law (Mentally Impaired Accused) Act what follows is an order quashing the indictment, without deciding the guilt or otherwise of the accused and either releasing the accused or making a custody order in respect of the accused.
A custody order should not be made
18 A custody order must not be made in respect of charges that the accused is facing unless I am satisfied that a custody order is appropriate having regard to:
(a) The strength of the evidence against the accused:
19 The prosecution case is objectively strong. The High Court declined a submission to simply quash the conviction but ordered a retrial.
(b) The nature of the alleged offences and the alleged circumstances of their commission:
20 The nature of the alleged offences are very serious and the alleged circumstances of their commission, that is a medical practitioner having non-consensual sex with patients, are serious.
(Page 7)
(c) The accused's character, antecedents, age, health and mental condition:
21 The accused has no relevant convictions. Before conviction, the accused had a good reputation within the medical profession. He is 83 years old. His physical health is poor. He developed heart failure in prison and had a significant medical event on 10 May 2011 and was found to have a blood clot in his right atrium (a chamber of his heart) and in his pulmonary arteries. He also has atrial fibrillation which increases his risk of clotting. He underwent cardiothoracic surgery on 13 May 2011. He was discharged on 23 May 2011 and was unable to care for himself, even with significant assistance. After rehabilitation, he still gets tired easily, gets short of breath on exertion, and walks with the aid of a stick. His mental health has been touched on. Dr Brett diagnosed his clinical disorders, mild depressive episode and unspecified mild dementia. The dementia is likely to worsen with time and there is some evidence that his cognitive functioning has deteriorated since his heart surgery.
22 His global assessment of functioning was as follows:
He has serious symptoms which impact on his functioning. This relates to his medical and mental health pathology. He is reliant on others to function and would be unable to function independently.
(d) The public interest:
23 On 12 March 2009, the sentencing judge noted that in the psychiatric report of Dr Febbo, which she commissioned, his prognosis was that in view of factors such as the accused's age, the risk of reoffending is low. The sentencing judge shared that view and thought that in the circumstances, the risk of reoffending is low indeed.
24 I accept the submission on behalf of the State that it is not in the public interest to keep a person in custody indefinitely without prospect of trial. This is especially so when the risk of reoffending is low indeed.
25 Having regard to the criteria specified in s 19(5), I am satisfied that a custody order must not be made.
Orders
26 I make the following orders:
1. The indictment is quashed without a decision as to the guilt or otherwise of the accused.
(Page 8)
- 2. The trial dates are vacated and the order for bail is discharged.
3. The accused is released.
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