The State of Western Australia v Tekle [No 2]
[2017] WASC 351
•5 DECEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- TEKLE [No 2] [2017] WASC 351
CORAM: FIANNACA J
HEARD: 5 OCTOBER 2017
DELIVERED : 5 DECEMBER 2017
FILE NO/S: INS 263 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
HAFTEAB TEKLE
Accused
Catchwords:
Criminal law and procedure - Mentally impaired accused - Not fit to stand trial - Whether will become mentally fit to stand trial within 6 months - Turns on own facts
Legislation:
Criminal Code (WA), s 279, s 317(1)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 3, s 8, s 9, s 10, s 12, s 19, s 23, s 24, s 25, s 33, s 35, s 40, pt 5
Mental Health Act 2014 (WA), s 4
Result:
Indictment quashed
Charge PE 29643/2015 dismissed & committal quashed
Custody order made
Category: B
Representation:
Counsel:
Prosecution : Mr B Standish
Accused: Ms J Fisher
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused: Justine Fisher Barrister & Solicitor
Cases referred to in judgment:
Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
Kesavarajah v The Queen (1994) 181 CLR 230
Ngatayi v The Queen (1980) 147 CLR 1
R v Pritchard (1986) 7 Car & P 303; 173 ER 135
R v Taylor (1992) 77 CCC (3d) 551
Reg v Berry (1977) 66 Cr App R 156
Reg v Presser [1958] VR 45
Reg v Robertson [1968] 1 WLR 1767
The State of Western Australia v Mack [2012] WASC 127
The State of Western Australia v Tekle [2017] WASC 170
FIANNACA J:
Background and context of proceedings
On 6 June 2016, I found that the accused, Hafteab Tekle, was not mentally fit to stand trial on a charge of murder brought against him in this court on indictment (Tekle [1]).[1] I found that he suffered from a mental impairment, namely a major psychotic disorder, likely a Delusional Disorder, persecutory type, continuous, but, in any case, a disorder in which the psychotic symptoms were of a delusional type.[2] I was satisfied that, because of that mental impairment, the accused would not be able to properly defend the charge at that stage, essentially because the impairment impeded his ability to understand and instruct counsel upon a possible defence of unsoundness of mind under s 27 of the Criminal Code, which was a live issue.[3]
[1] The State of Western Australia v Tekle [2017] WASC 170 (Tekle [1]).
[2] Tekle [1] [110].
[3] Tekle [1] [111]. See Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 9(g).
There was another aspect of his mental impairment that was considered to affect his mental fitness to stand trial. I explained the issue as follows:[4]
Further, on the evidence given at the hearing, there is a real prospect that the accused's mental impairment will affect his perception of the trial process, in that aspects of the proceedings, if not the whole trial, may be imbued with his delusional paranoid thought system, which may affect the choices he makes in respect of his participation in the process and the instructions he gives his counsel. It is difficult to know how this might manifest.
[4] Tekle [1] [112].
I proceeded on the basis that the potential for the accused to perceive the trial process in a delusional manner, which may affect the choices he makes, was a factor that tended to reinforce the conclusion that he would not be able to properly defend the charge because of his mental impairment.
Having made the finding that the accused was not mentally fit to stand trial, I was required to consider whether he would become mentally fit to stand trial within 6 months after the finding.[5] If I had been satisfied that he would not become mentally fit, I would have been required to quash the indictment and either release the accused or make a custody order.[6] However, I was not so satisfied, so it was necessary to adjourn the proceedings 'in order to see whether the accused will become mentally fit to stand trial'.[7]
[5] Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 19.
[6] Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 19(1)(b) and (4).
[7] Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 19(1)(b).
There was some expert medical evidence to suggest that it would be worth assessing the accused within a period of 3 months, and that, if the accused was not mentally fit by then, such a period should be sufficient time in which to assess whether the accused would become mentally fit within the period of 6 months after 6 June 2017. Accordingly, I adjourned the proceedings to 29 August 2017, being a suitable date approximately 3 months after the finding. I explained as follows:[8]
The treatment of the accused's mental illness commenced relatively recently. He has shown improvement on the medication he has been taking. There is a prospect that he will continue to improve and will become mentally fit to stand trial. No reliable estimate can be made at this time of the period within which the accused may become mentally fit to stand trial. However, having regard to the psychiatric evidence, it may be within 6 months, and Dr Brett considered it would be worth assessing the accused again in 3 months' time.
[8] Tekle [1] [115].
I also identified some further steps that the court expected would be taken before the resumption of the hearing. Again, these were based on aspects of the expert evidence and on the fact that there was uncertainty about whether certain deficiencies in the accused's understanding of court processes were cultural or the result of a lack of knowledge, rather than due to mental impairment. I said:[9]
It is the court's expectation that, during the next three months, the accused will continue to receive treatment and to be assessed. If it is practicable, that should take place at the Frankland Centre at Graylands Hospital rather than in a prison setting. It may be that his mental illness would warrant steps being taken for the accused to be admitted to that hospital. What was clear from the evidence was that the intensive kind of treatment that the accused is likely to require to make progress, particularly in the form of therapeutic counselling, will be more readily available in a secure hospital setting than in prison.
The court would also expect that steps will be taken by the accused's legal advisers to inform the accused of the court processes and legal issues in this matter, as some of his deficiencies in respect of understanding the court processes appear to be the result of a lack of knowledge, or cultural, rather than the result of his mental impairment.
[9] Tekle [1] [117] - [118].
In the context of the possibility that the accused might perceive the trial process as part of his delusional construct, I noted as follows:[10]
It was suggested by both Dr Brett and Dr Claassen that the accused may regard the court to be part of a system controlled by the Tekle family (he referred to the "Tekle control court" when speaking with Dr Claassen), and he may not have trust in his legal advisers. I accept these are real possibilities, given his condition and what he has said. However, they are matters that can (and should) now be explored promptly in light of the proceedings on 31 May 2017. The accused sat through those proceedings, and insight may be gained into whether such delusional thought processes will affect his perception of the trial by exploring his perception of those proceedings.
[10] Tekle [1] [112].
Delay in the resumption of the proceedings
On 2 August 2017, the court was informed by letter from the Assistant Director, Psychological Services, in the Offender Management Division of the Department of Justice (Corrective Services), that a psychiatric assessment of the accused could not be provided by 29 August 2017, but that the assessment had been allocated to Dr Claassen, who would provide a report by 13 September 2017. Consequently, the hearing did not proceed on 29 August 2017, but was relisted for 5 October 2017.
The accused was interviewed by Dr Claassen on 19 August 2017. While the court accepts that Dr Claassen has a busy practice and that time is required by an expert to review materials and prepare a report, it is regrettable that there has been a delay and that the assessment made by Dr Claassen was over one month before the hearing. Although he gave evidence that he had read the clinical notes concerning the accused for the period between 19 August 2017 and the date of the hearing, he had not assessed the accused during that period. Nor had Dr Claassen consulted with the psychiatrist who has had responsibility for the respondent's treatment in Casuarina Prison during that period. Nevertheless, the hearing proceeded on the basis that Dr Claassen could make an assessment of whether there had been any improvement in the respondent's condition since 19 August 2017 on the basis of the medical records maintained by the mental health team at Casuarina Prison during that period.
A continuing issue - the use of an interpreter
In Tekle [1], I referred to the fact that the accused was born in Sudan and that his first language is Tigrinya, not English, although he has studied English since coming to Australia when he was 19 or 20 and has at least a basic ability to understand and speak English. The proceedings on 31 May 2017 were conducted with an interpreter qualified to interpret between English and Tigrinya. However, the accused had been interviewed by Dr Brett without an interpreter, and chose not to use an interpreter, although one was present, when he was interviewed by Dr Claassen for those proceedings. Dr Claassen was of the view that the accused found the process difficult, as a result. Nevertheless, when Dr Claassen interviewed the accused on 19 August 2017, he did not use an interpreter.
An interpreter was present for the hearing on 5 October 2017. There was some confusion initially as to whether the accused understood the interpreter, but upon questioning by me, the accused confirmed that the language spoken by the interpreter was the same as his language. However, he indicated he had difficulty understanding the interpretation of complex language. It seemed to me that was an issue arising from the accused's level of sophistication in his first language, rather than competence of the interpreter in that language. As I noted in Tekle [1], the complex and abstract concepts that will often be discussed in evidence and submissions in proceedings of this kind may be challenging to grasp even for someone whose first language is English. Obviously, that does not preclude the court from determining the questions raised under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).
The accused appeared to understand my questions of him concerning his interaction with the interpreter, and he answered in a contextually appropriate manner. Ultimately, he indicated he would not require constant interpretation by the interpreter, but would seek clarification from the interpreter of matters he did not understand. The hearing proceeded accordingly.
The factual background
The factual background to this matter is set out in Tekle [1]. At [2] to [8] of that decision, I set out the circumstances in which the need to determine the accused's mental fitness to stand trial arose. At [30] to [38], I summarised his personal history, and identified the difficulty encountered by the psychiatrists in ascertaining that history. At [23] to [28], I outlined the facts alleged by the state in respect of the offence.
It is not necessary to repeat all of those factual circumstances here, but they are part of the context in which the issues in this hearing must be decided. A brief outline will suffice for present purposes.
The accused's history remains elusive in some respects, because it has not been possible to ascertain the extent to which the accounts he has given include delusional beliefs. However, it appears not to be in dispute that the accused was born in Sudan and came to Australia when he was 19 years of age. No evidence has been adduced as to his education in Sudan. In Australia, he attended schools to learn English, but, as I have already noted, it appears that his capacity with the English language is limited. He has had employment in the past, but was unemployed at the time of the alleged offence. He has a history of alcohol and cannabis use, which the psychiatrists who have examined him consider to be problematic and clinically significant. He has a significant history of criminal convictions, including for offences of violence.
The accused claims that his mother was killed when he was between the ages of 7 and 10 years. He believes that she was killed by a member of the Tekle family, who he says then took him into the family, although he has described it as enslavement. He says he came to Australia with the Tekle family. I note that there is no evidence of any enquiries having been made to determine the accuracy of aspects of his account that might be capable of corroboration or rebuttal, such as the death of his mother, his travel to Australia or whether Tekle is his birth name. However, the psychiatrists at the previous hearing were satisfied, having regard to their interviews with the accused, that his story about his mother being killed by the Tekle family and his claim that he was enslaved are part of his delusional belief system.
Prior to the alleged offence of murder in 2015, the accused had been suffering from a 'psychotic spectrum disorder' which, until that time, had been undiagnosed. He began to receive treatment for the disorder after he was charged and remanded in custody. Dr Claassen's opinion at the hearing of 31 May 2017 was that the disorder was a Delusional Disorder, persecutory type, continuous. Dr Brett was not certain at that stage whether the accused's condition could be diagnosed within that category because it was early in the accused's treatment, although he agreed it was most probably a delusional disorder.
The accused is alleged to have killed the deceased, Mr Gebreyohanus, by stabbing him multiple times with a knife on 20 August 2015, after following him home from a shopping centre. The accused was arrested on 22 August 2015 and was interviewed twice by police. He admitted stabbing the deceased, and claimed that he recognised the deceased as the person who had killed his mother in Sudan. That account suggests the accused was delusional at the time he stabbed the deceased. Assuming he was in a psychotic state, it does not follow that he was thereby deprived of one of the relevant capacities specified in s 27 of the Criminal Code (WA) so as to give rise to a defence of unsoundness of mind. However, as I accepted in Tekle [1], the availability of such a defence to the accused is a live issue upon which his counsel wishes to obtain a psychiatric opinion. That course may be hampered by the accused's lack of insight into his mental illness.
The evidence in these proceedings
The evidence presented at the hearing of 5 October 2017 consisted of the testimony of Dr Claassen and his report dated 13 September 2017.
Consultation prior to 19 August 2017
As I stated earlier, Dr Claassen interviewed the accused, for the purpose of preparing his report, on 19 August 2017. However, he had seen the accused for a clinical session on an occasion between 31 May 2017, when he gave evidence at the first hearing in these proceedings, and 19 August 2017. That had occurred during a period when there was a shortage of 'in reach' consultant psychiatrists at Casuarina Prison where the accused was being held, and Dr Claassen provided 'cover'. The clinical session was for 15 minutes.
The accused had been receiving treatment and was being monitored by the prison's mental health team, which is known as the 'Co‑morbidity Team'. The team consists of a psychiatrist and mental health nurses. The psychiatrist who had been attending to the accused was Dr Natalia Bilyk, who is also with the State Forensic Mental Health Service. Although Dr Claassen had not spoken with Dr Bilyk about the accused, he had obtained access to the accused's clinical electronic case file. The records showed that the accused had continued to be prescribed the antipsychotic agent, Risperidone, which he took orally on a daily basis. Dr Claassen gave evidence that, apart from providing medication, the prison mental health team would provide 'psycho‑educative intervention', which generally involves meeting with the patient, speaking about his mental health 'in broad strokes', ascertaining how the patient is functioning in the custodial setting, and providing a degree of support and education in respect of 'the primary mental issue'. However, he was not able to elaborate on the extent to which such intervention may have occurred with the accused.
Dr Claassen said that he recalled being concerned about the accused's mental health and expressing the view that the accused may be overmedicated when he saw him for the clinical session at Casuarina Prison. The accused had described symptoms which caused Dr Claassen to think that he may have become depressed. They included impairment of his sleeping, feelings of hopelessness, a lack of engagement with his environment, not receiving visits and not caring about his isolation. Dr Claassen also noted that the accused's affect had become quite restricted, consistent with depression. However, given the limited time Dr Claassen spent with the accused during the clinical session, and as he was not able to obtain sufficient objective information about how the accused had been functioning, he was not able to determine whether the symptoms were due to depression or overmedication. Dr Claassen said he expressed his views about those possibilities at that time to the Co‑morbity Team nurse and asked that the nurse contact the treating psychiatrist. However, it seems that it was not until after his review of the accused for these proceedings, and submitting his report of 13 September 2017, that he recommended a reduction in the accused's medication. Dr Claassen said that the records showed a reduction of the dose of Risperidone had subsequently occurred, from 8 mg per day to 6 mg per day.
Assessment on 19 August 2017
Dr Claassen said that when he assessed the accused on 19 August 2017, there had been no further improvement in his psychotic symptoms since he assessed him on 10 May 2017 (for the hearing on 31 May 2017). Further, the accused again presented with symptoms and signs which, in Dr Claassen's opinion, warranted a diagnosis of depressive disorder. Although the depressive symptoms could have been effects of the accused's medication, Dr Claassen considered it more likely that the accused 'had now in addition to his psychotic spectrum disorder developed a depressive disorder as well.'[11] In Dr Claassen's opinion, the depressive disorder might adversely affect the accused's ability to follow the course of the trial, because such disorders are 'notoriously known to impact individuals' memory, attention, concentration, capacity to focus, a sustained focus of attention.'[12] However, Dr Claassen made it clear that he was only 'postulating that [the depressive disorder] might' affect the accused's ability to concentrate. He did not spend enough time with the accused to confidently say it would affect him in that way. In any event, Dr Claassen said that if his diagnosis of a depressive disorder is correct, the accused could be treated with anti‑depressant medication.
[11] ts 33 (5 October 2017).
[12] ts 33 (5 October 2017).
I am not satisfied on the evidence that the accused's depressive symptoms noted by Dr Claassen constitute a further layer of mental impairment that would affect one of the capacities referred to in s 9 of the Act so as to render him mentally unfit to stand trial. Ms Fisher, for the accused, did not submit I should find otherwise.
No improvement in the accused's psychotic symptoms
The issue at the hearing of 5 October 2017 was whether there had been an improvement in the accused's psychotic symptoms, such that he had become mentally fit to stand trial and, if not, whether he would become mentally fit by 6 December 2017, being 6 months after my decision of 6 June 2017.
The evidence must be considered within the relevant statutory context. Section 10(2) of the Act provides that, if an accused is found to be not mentally fit to stand trial, he is presumed to remain not mentally fit until the contrary is found under pt 3. These proceedings, pursuant to s 19 of the Act, are under pt 3.
Dr Claassen was of the opinion, based on his interaction with the accused on 19 August 2017, that 'there had been no further improvement in the [accused's] psychotic symptoms, which form the core of his diagnosis of a delusional disorder, persecutory subtype'.[13] Further, Dr Claassen had reached the conclusion that the accused's mental illness was resistant to treatment, or 'treatment refractory'.[14] He reiterated the point made by both him and Dr Brett at the previous hearing that, of the psychotic spectrum disorders, delusional disorder is notoriously difficult to treat, and people with such a disorder will often not respond to treatment. Dr Claassen had previously thought there were promising signs that the accused could be treated successfully with Risperidone, as he had shown improvement in his presentation and his ability to engage during interview before the hearing of 31 May 2017 after he was commenced on that medication. However, there had been no further gains since then, and Dr Claassen was now of the opinion that the accused may well be one of those individuals who does not respond to treatment. He said:[15]
Risperidone … is a good option for the treatment of delusional disorder, and so it doesn't bode well in terms of the prognosis for responsiveness to treatment for Mr Tekle's variety of delusional disorder, that he has shown no real clinical response to the Risperidone.
[13] ts 31 (5 October 2017).
[14] ts 40 - 41 (5 October 2017).
[15] ts 41 (5 October 2017).
He said that he would have expected the accused to have demonstrated a clinical response by now.[16]
[16] ts 34 (5 October 2017).
As evidence of the lack of improvement in the accused's symptoms, Dr Claassen relied on the accused's persistent references to his belief that a member of the Tekle family was responsible for his mother's death, that the family was persecuting him, and that the family would use information from the court proceedings 'to do bad things, like lie, to judge [him] and keep [him] in prison'.[17] Dr Claassen said it did not take long for the accused to start speaking about his conviction in respect of those matters. The accused also referred to 'clues and signs' which, in the accused's mind, confirmed his persecutory beliefs. Dr Claassen said the accused did so in identical fashion to previous occasions. They involved what in the previous hearing were described as delusions of reference.
[17] ts 31 - 32 (5 October 2017).
An example described by Dr Claassen was one in which the accused claimed that, upon attending an English language class in Perth some time in the past, he had seen a picture on the wall that confirmed the lecturer knew the Tekle family and that the person who had killed his mother when he was eight years old was in Perth. While the example was historical, not something he had experienced recently or during the review session, Dr Claassen was of the view, from the way the accused spoke about it, that it was a currently held belief. In other words, the accused was not simply giving it as an example of a belief he had previously held, but as a belief he continued to hold.
Accused's perception of the court proceedings
Dr Claassen also referred to the accused's belief that what happened in court did not matter, because the Tekle family knew what was being said in court (despite not being at the court) and would use the information to cause him harm. He also noted that the accused appeared to have feelings of hopelessness in relation to the likely outcome of a trial. Dr Claassen approached the accused's beliefs in these respects as being part of his delusional construct, and surmised they would affect his ability to engage properly in the trial process. For instance, he considered the accused's belief that the Tekle family knew what was being said in court at the moment it was being said as delusional. The accused maintained the belief despite being challenged by Dr Claassen about how members of the family could be aware in that moment if they were not present. Dr Claassen confirmed that the accused was not suggesting the Tekle family controlled the court, as he had intimated before the hearing of 31 May 2017. The accused did not consider the judge would be influenced by the Tekle family.[18] Nevertheless, Dr Claassen considered that the accused's beliefs would affect his ability 'to communicate with his counsel and construct his defence' and his capacity 'to fully attend to what is happening in court'.[19]
[18] ts 32 (5 October 2017).
[19] ts 57 (5 October 2017).
However, as I pointed out during the hearing, it is not readily apparent how such beliefs would prevent the accused from being able to properly defend the charge. Any trial would be open to the public, and the Tekle family could find out information about proceedings at any such trial without having been in attendance. Secondly, it is not unknown for accused persons to have a defeatist attitude, or a sense of hopelessness, about the court process and the likely outcome. That does not mean they are unable to follow the course of the trial or to properly defend the charge. Dr Claassen's response was that:[20]
… given the fact that [the accused] suffers from treatment resistant disorder which has not responded to treatment, and which I think is unlikely to respond to treatment in the immediately foreseeable future, naturally my first assumption, and this is an assumption, and it's my assumption, is that his capacity to understand, follow, participate, whatever's being said or happening in court, I think that that's impeded ‑ impacted on by the fact that … this psychotic disorder that still presents with symptoms, which have not responded to treatment.
[20] ts 58 (5 October 2017).
As I said in the first section of these reasons, in Tekle [1], I identified the potential impact of the accused's psychotic symptoms on his perception of the trial process and his ability to engage in that process as matters that should be explored promptly by investigating his perception of the proceedings of 31 May 2017, at which he was present. I would have expected such an investigation to be conducted in the course of therapeutic counselling sessions with the accused after the hearing. There is no evidence in these proceedings that inquiries of that kind were made with the accused during such sessions.
Dr Claassen said that he did ask the accused about the proceedings of 31 May 2017 during his interview for the preparation of his report, but the accused's responses were vague and to the effect that he did not know or was not sure.[21] It was in that context that he spoke about the Tekle family being able to hear what was being said in court. Further, he indicated that he felt he could not trust his lawyer. However, there was a lack of detail about the matters that were discussed in the hearing of 31 May 2017. I was left with the impression that the matter was not explored to the extent I had expected. There was no indication that Dr Claassen probed the accused in respect of the topics or issues discussed at the hearing, notwithstanding the accused's initial answers that he did not know or was not sure what had happened. On the available evidence, I am not satisfied that, because of the accused's belief in the Tekle family's omniscience or his defeatist attitude, he would not be able to 'attend to what is happening in court'. More particularly, the defeatist attitude or hopelessness appears to be associated with, or at least exacerbated by, the accused's depression, which can be treated.
The main issue ‑ the accused's ability to properly defend the charge
[21] ts 32 (5 October 2017).
Ultimately, Dr Claassen identified the main issue to be that the accused would not be able to properly defend the charge because of his mental impairment. Dr Claassen's explanation of the basis for his opinion was consistent with his evidence on 31 May 2017. As emerged at that hearing, the key point is the accused's lack of insight into his mental illness, and his inability, therefore, to make a choice about the manner in which he should defend the charge, because he cannot countenance the possibility that a defence of unsoundness of mind may be open to him. In this context, insight involves 'the person's understanding of their condition, where symptoms come from, what treatment options are available, and the factors which influence the natural progression of that illness'.[22]
[22] ts 46 (5 October 2017).
Dr Claassen said that he had discussed with the accused on three occasions the fact that he believed the accused had a mental illness that was responsible for his beliefs, which Dr Claassen believed to be delusional. He said that the accused's treating psychiatrist had also 'openly and transparently' discussed his findings with the accused. However, the accused has demonstrated that he does not 'incorporate or internalise any of that information or material'.[23] While the accused has continued to accept the oral medication prescribed to him for his mental illness, he does not acknowledge that he has symptoms of a psychiatric illness. Dr Claassen said:[24]
He does not agree with my opinion. He does not believe that he has a mental illness.
[23] ts 47 (5 October 2017).
[24] ts 48 (5 October 2017).
Dr Claassen explained his understanding of the manner in which mental illness may or may not affect a person's ability to make considered decisions (i.e. decisions not emanating from a mental impairment) about that person's defence of a criminal charge:[25]
I think that … if an individual experiences a significant psychotic episode with whichever aetiology, whatever the cause may be, and they do something seriously dangerous, harm somebody or they're charged with an offence, they then take treatment. They recover from their psychosis and at the time that they enter into their legal process, they are able to engage with their legal representative and consider what their legal options are. All three of them, in terms of the pleas that they could enter, pursue. ... [A]gain, my opinion, then I would regard that person as demonstrating a degree of good insight into their legal situation in terms of what the options are. Mr Tekle doesn't. Based on my assessment, he's not able to engage to that level of sophistication with his legal representative and considering carefully what those options are. And for that reason I'm saying that I don't think he has an understanding of the seriousness of a situation because he tells me that the defence he intends on relying on, instructing, is that this person killed my mother when I was eight years old.
[25] ts 49 - 50 (5 October 2017).
Dr Claassen went on to acknowledge that the issue is not straightforward:[26]
This is a very grey area and a difficult concept, I think. … I'm happy that I'm not in your Honour's shoes having to make the judgment on it. Because it's not straightforward. There is not a blood test that I can do to say, "This individual has good insight, that individual doesn't", it's all based on impressions and concepts, clinical judgment.
[26] ts 50 (5 October 2017).
However, Dr Claassen has not discussed with the accused the possibility of a defence of unsoundness of mind, and he was not aware of anyone else having discussed it with the accused. Given Dr Claassen's role, it is understandable that he would not broach the subject directly with the accused. However, in the absence of any evidence that the subject has been discussed with the accused, Dr Claassen's opinion involves extrapolation from the fact that the accused does not accept he suffers from mental illness or that his admitted actions were based on delusional beliefs, to a conclusion that, because of his mental illness, the accused could not give proper instructions to his counsel about his defence. Dr Claassen's evidence needs to be considered in conjunction with the evidence given by him and Dr Brett on 31 May 2017. Even so, his evidence in these proceedings has caused me to reconsider the foundations for the conclusion that the accused is unable to properly defend the charge because of his mental impairment.
The situation is complicated by the fact that, by s 10(2), the accused is now presumed to remain not mentally fit until the contrary is found. Although the standard of satisfaction prescribed in s 12 of the Act is as to whether an accused is 'not mentally fit to stand trial', there is no other provision prescribing the standard of satisfaction before 'the contrary is found'. Having regard to the scheme of the Act, and the context of s 19, I am of the view that the standard prescribed in s 12 is intended to apply in respect of the determination of the question of mental fitness either way. The question at this stage is whether the evidence satisfies me on the balance of probabilities that the accused has become mentally fit, notwithstanding the lack of improvement in his symptoms. Before addressing that question, I will outline Dr Claassen's evidence concerning the accused's prognosis.
Prognosis
As I have stated, Dr Claassen is of the opinion that the accused's symptoms have not improved since he saw him in May 2017. He described the accused's condition as static and resistant to treatment. He does not consider that continuing treatment with Respiridone is likely to result in improvement. There is another option currently available, namely Clozapine. It was referred to at the previous hearing. The accused has not been given Clozapine. Dr Claassen said that Clozapine is regarded as 'the gold standard for the treatment of treatment refractory psychotic spectrum disorders'.[27] However, while it can be very effective, it is a dangerous drug that is associated with significant morbidity and in some instances it can cause death. Therefore, prescribing the drug is a decision that is not taken lightly. In any event, even if the drug had been prescribed soon after the hearing on 5 October 2017, it would be unlikely that the accused would recover from his illness by 6 December 2017.
[27] ts 36 (5 October 2017).
Dr Claassen said that it can take up to 18 to 24 months to see a clinical response with Clozapine. There have been instances of individuals showing a clinical response within six to eight weeks of commencing to take the drug. However, Dr Claassen was not optimistic in the accused's case, stating:[28]
It is of critical importance to recognise that at least one formulation is that Mr Tekle has been psychotic and untreated probably for many, many years. Now, it stands to reason that if it takes some period of time for an individual to develop a psychotic disorder and then for that disorder to remain untreated for some years, it could take year (sic) for the disorder to respond to treatment, if the correct treatment was instituted. A further confounding factor here and complicating, challenging factor is that ... based on my assessment I now call this a treatment refractory illness. So the likelihood of him demonstrating a full recovery from this illness even on Clozapine treatment, I think is slim to none.
[28] ts 52 (5 October 2017).
Although Dr Claassen considered that to be the realistic conclusion from a clinical perspective, he said it did not mean that different treatment options should not be trialled. He said it was possible that one of the newer antipsychotic drugs that are alternatives to Clozapine could be tried with reasonable effect.[29] However, it was clear from his evidence that the accused will not have recovered from his illness, in the sense of exhibiting improvement in his psychotic symptoms, by 6 December 2017.
[29] ts 38 (5 October 2017).
Consideration ‑ Does the accused remain mentally unfit to stand trial?
As I noted earlier, the evidence given by Dr Claassen at the hearing, in particular his acknowledgment that the issue is not straightforward, has caused me to reconsider whether the impact of the accused's psychotic symptoms upon his mental functioning could properly be said to deprive the accused of any of the capacities referred to in s 9 of the Act, having regard to the relevant legal principles. I am mindful that the issue must be approached from the perspective that the accused is now presumed to be mentally not fit to stand trial, and the question is whether I am satisfied on the balance of probabilities that he is mentally fit.
The basis of my finding in Tekle [1] that the accused was mentally unfit to stand trial as at 6 June 2017 was that he would not be able to properly defend the charge because, on the balance of probabilities, his mental impairment prevented him from being able to make rational choices about the defences that may be open to him and the submissions that should be made about the prosecution evidence.[30] Although the evidence suggested that the accused's capacity to follow the course of the trial might also be affected, I considered that the matters relied on by Dr Claassen and Dr Brett tended to reinforce the conclusion that he would not be able to properly defend the charge, rather than satisfying the criterion in s 9(e) of the Act.[31]
Legal principles
[30] Tekle [1] [93] - [95] and [111].
[31] Tekle [1] [112].
In Tekle [1], I referred to a number of propositions of law adopted by Gleeson CJ in Eastman v The Queen[32] from R v Taylor,[33] which, in turn, were referred to by McKechnie J in The State of Western Australia v Mack.[34] Three of the propositions are relevant to this case, namely that:
1.The fact that a person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if the delusion relates to the subject matter of the trial;
2.The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner that may be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial; and
3.The fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.
[32] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1.
[33] R v Taylor (1992) 77 CCC (3d) 551.
[34] The State of Western Australia v Mack [2012] WASC 127.
It is necessary to examine more closely the analysis of the law in Eastman and other cases referred to therein.
Gleeson CJ referred to early judicial statements on the subject and noted that, while they may have involved an unsophisticated approach to psychiatric questions, they emphasised that what is in question is a matter of comprehension, not skill.[35] The essence of the test adopted in various authorities and legislative schemes has tended to reflect the instruction given in R v Pritchard,[36] that the question was 'whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge'.[37]
[35] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [22] (Gleeson CJ).
[36] R v Pritchard (1986) 7 Car & P 303, 304; 173 ER 135, 135 (Alderson B).
[37] See also Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [57] (Gaudron J).
In Eastman, Gleeson CJ noted:[38]
Alterations in the rules concerning the right of legal representation of accused persons affected the context in which the question may arise, and developments in the understanding of mental illness have elucidated the considerations that may be relevant to the enquiry. Even so the test is substantially the same.
[38] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [22] (Gleeson CJ).
In Ngatayi v The Queen, the plurality[39] explained the test in R v Pritchard as follows:[40]
The test looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite a high order, particularly in cases where intricate legal questions arise. It is notorious that many crimes are committed by persons of low intelligence, but it has never been thought that a person can escape trial simply by showing that he is of low intelligence. We respectfully agree with the view expressed by Smith J in Reg v Presser that the test needs to be applied 'in a reasonable and commonsense fashion'. Smith J went on to say that there are certain minimum standards which the accused needs to equal before he can be tried without unfairness or injustice, but added that the accused "need not have the mental capacity to make an able defence". ... The view that the accused need not have sufficient capacity to make an able defence, or to act wisely or in his own best interest, is accepted also in English cases such as Reg v Robertson and Reg v Berry and accords with common sense. (citations omitted)
[39] Ngatayi v The Queen (1980) 147 CLR 1 (Gibbs, Mason & Wilson JJ).
[40] Ngatayi v The Queen (1980) 147 CLR 1, 8; Reg v Presser [1958] VR 45, 48; Reg v Robertson [1968] 1 WLR 1767; [1968] 3 All ER 557; Reg v Berry (1977) 66 Cr App R 156, 158.
The court in Ngatayi was dealing with the provisions of s 631 of the Criminal Code (WA), which previously dealt with the issue of mental fitness to stand trial in this State and was framed in terms of a capacity 'to understand the proceedings at the trial, so as to be able to make a proper defence', which, as the court noted, was based on the language used by Alderson B in R v Pritchard. The plurality went on to say:[41]
The section does not mean that an accused can only be tried if he is capable, unaided, of understanding the proceedings so as to be able to make a proper defence. ... [I]n deciding whether an accused is capable of understanding the proceedings and to be able to make a proper defence it is relevant that he is defended by counsel. If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand, the law. With the proper assistance of counsel he will usually be able to make a proper defence.
[41] Ngatayi v The Queen (1980) 147 CLR 1, 9.
As appears from the earlier passage, the plurality in Ngatayi referred to minimum standards identified by Smith J in R v Presser[42] as necessary to constitute mental fitness to stand trial. The passage in which Smith J identified those standards was also adopted in Kesavarajah v The Queen[43]and was referred to by Gaudron J in Eastman at [58]. That statement of common law requirements has been largely reproduced in the provisions of s 9 of the Act, although not in identical terms. Informing the question of whether the accused understands the purpose of the trial, Smith J said:
He needs to understand generally the nature of the proceeding, namely that it is an inquiry as to whether he did what he is charged with.
[42] R v Presser [1958] VR 45.
[43] Kesavarajah v The Queen (1994) 181 CLR 230, 245.
As for following the course of the trial, Smith J said:
He needs to be able to follow the course of the proceedings so as to understand what is going on in Court in a general sense, though he need not, of course, understand the purpose of all the various court formalities.
Having referred to the need for the accused to understand the substantial effect of any evidence that may be given against him, Smith J went on to refer in the following terms to the need for the accused to properly defend the charge:
Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any. (emphasis added)
The requirement that the accused have the capacity 'to be able to decide what defence he will rely on' was specifically incorporated in the legislation under consideration in Eastman, namely the Mental Health (Treatment and Care) Act 1994 (ACT). While s 68 of that statute gave effect to similar concepts to those in s 9 of the Act, the question of whether an accused was able to properly defend the charge was encapsulated in subsection (3) in terms of whether he was capable of:[44]
(f)making a defence to, or answering, the charge;
(g)deciding what defence he would rely on …
[44] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [23] (Gleeson CJ), [299] (Hayne J).
I note also that the procedure under the ACT statute was quite different from that under the Act, in that, if a court was satisfied that there was a question as to a person's fitness to plead, it was required to refer the question to a tribunal. Further, the onus in dealing with the question of fitness to plead under that statute was the reverse of the onus under the Act. The enquiry was whether the accused was fit to plead to a charge, and the tribunal was prohibited from making a determination that the accused was fit to plead unless satisfied that the accused had the several capacities referred to in s 68, including the capacities in s 68(3)(f) and (g), to which I have referred.
Notwithstanding the different legislative context, there are statements of principle in Eastman, as I indicated in Tekle [1], which are applicable to the approach to be taken under the Act.
Although s 9 of the Act does not refer specifically to a capacity to be able to decide what defence the accused will rely on, clearly it was regarded by Smith J in R v Presser as an aspect at common law of the accused's capacity to properly defend the charge. His Honour's analysis was endorsed by the High Court in Ngatayi and Kesavarajah.
Finally, I note that a number of the authorities in which the principles have been discussed were cases in which the finding at first instance that the accused was unfit to plead or stand trial was contrary to the position taken by the accused. That, of course, contrasts with the present case, at least in terms of the argument put on behalf of the accused, irrespective of his lack of insight into his condition. However, in my view, the different factual context does not affect the applicability of the fundamental principles that emerge.
Relevant for present purposes, the following principles may be extracted:
1.In order for the accused to be mentally fit to stand trial, it is not necessary that he have a complete understanding of the law or court procedure. An expectation of such understanding would be unrealistic in the case of many accused.
2.The fact that, because of mental impairment, an accused does not have an amicable, trusting relationship with his counsel, does not necessarily mean that he is mentally unfit to stand trial.
3.Even if an accused has delusions about the subject matter of the trial, it does not necessarily follow that he is mentally unfit to stand trial.
4.Further, for the accused to be mentally fit to stand trial, it is not necessary that he have the capacity to make an able defence, to act wisely, or to act in his own best interests. That is particularly so when an accused is represented by counsel who will make forensic decisions about the proper conduct of the defence.
5.However, mental fitness to stand trial requires that the accused have sufficient capacity to be able to decide what defence he will rely on, and to instruct his counsel accordingly.
In Tekle [1] I said in respect of the phrase 'properly defend':[45]
The meaning of 'properly' includes 'in an appropriate or suitable manner' and 'correctly'. In the context in which it is used in s 9(g), I accept it connotes, among other things, the ability to consider in an informed way and make rational choices about defences that are reasonably open on the evidence and the submissions that should be made by the defence in respect of the evidence presented by the prosecution.
[45] Tekle [1] [93].
That approach, it seems to me, is consistent with the principles to which I have referred.
Conclusion
A number of the matters on which Dr Claassen relied in his report and in evidence to support the view that the accused would be unable to properly defend the charge because of his mental illness appear to fall within the first four numbered categories referred to in [60] above. It seems to me that the difficulty in this case arises at the interface between the fourth and fifth category. On one view, it might be thought that Dr Claassen's assessment amounts to no more than that the accused's delusional disorder deprives him of the capacity to make an able defence or act in his own best interests. However, Dr Claassen has consistently expressed the view that the accused's mental illness deprives him of the ability to consider in an informed way and make a rational choice about the defence on which he will rely. He summarised the position in the following passage:[46]
I asked him to reflect on what his current views were in terms of his legal position. What his options were. The response was predominantly focussed on, "Don't really know about any of that because this person had killed my mother when I was eight years old. And so [it] doesn't matter ‑ none of this matters because I'm right and justified in what I did."
[46] ts 48 (5 October 2017).
That needs to be considered in the context that the accused has refused to accept that he suffers from a mental illness and that his beliefs are delusions stemming from that illness.
As I noted earlier, assuming, on the basis of the accused's admissions to the police, that he was in a psychotic state at the time he stabbed the deceased, it does not follow that he was thereby deprived of one of the relevant capacities specified in s 27 of the Criminal Code so as to give rise to a defence of unsoundness of mind. However, I accept that it remains a live issue, at least in respect of the accused's capacity at the time to know that he ought not to do the act. It also remains the case that the accused lacks insight into his mental impairment, and consequently is incapable of accepting that he has a mental illness and that his beliefs are delusional. Although it is not clear on the evidence that he has been given advice about the possible availability of the insanity defence, the accused's answers to Dr Claassen indicate that he would not countenance such a defence while he remains psychotic. Putting the issue in its proper context, in light of s 10(2) of the Act, I am not satisfied that the accused had the capacity at the time he was reviewed by Dr Claassen to consider in an informed way and make rational choices about the defence he will rely upon and the submissions that should be made on his behalf in respect of the evidence presented by the prosecution.
I have also reviewed the evidence at the hearing of 31 May 2017. That evidence supported the conclusion that the accused's psychosis is not constituted only by delusions, but also by disordered thought processes, including an inability to remain focussed on matters under discussion. Such disorder in his thinking may impinge on his perception of any evidence presented at trial and the choices he makes in his defence. Dr Claassen's evidence in these proceedings about his interview with the accused on 19 August 2017 supports the conclusion that the accused's mental impairment continues to cause such disorder in his thinking.
For those reasons, I am not satisfied that, at the time of the hearing on 5 October 2017 the accused was mentally fit to stand trial.
The accused will not become mentally fit by 6 December 2017
I am satisfied on Dr Claassen's evidence that the accused will not become mentally fit within 6 months of the date of my finding that he was not mentally fit to stand trial, namely by 6 December 2017. Indeed, the indications are that he is not likely to experience improvement in his psychotic disorder in the foreseeable future, even if placed on a different anti‑psychotic regimen.
The State conceded that the evidence supported those conclusions.
The appropriate orders
In light of my findings, s 19(4) of the Act requires that I quash the indictment, without deciding the guilt or otherwise of the accused, and either release the accused or, subject to s 19(5), make a custody order in respect of the accused. I note that the accused was also committed to this court on a charge of assault occasioning bodily harm under s 317 of the Criminal Code (PE 29643/2015), concerning an offence allegedly committed against one of his relatives on 17 June 2015 in East Victoria Park. It is necessary under s 19(4) to dismiss the charge and quash the committal, without deciding the guilt or otherwise of the accused.
Section 19(5) stipulates that a custody order must not be made unless the statutory penalty for the alleged offence is or includes imprisonment (which is the case for both offences) and the judge is satisfied that a custody order is appropriate having regard to ‑
(a)the strength of the evidence against the accused;
(b)the nature of the alleged offence and the alleged circumstances of its commission;
(c)the accused's character, antecedents, age, health and mental condition; and
(d)the public interest.
It was conceded on behalf of the accused that the only appropriate order in the circumstances of this case is a custody order. The concession is properly made, but it is appropriate that I outline a number of matters of significance.
While the accused is presumed innocent until proven guilty of the offences charged, the statutory regime requires the court to make an assessment of the case against him and the potential danger the accused may pose to the community.
In my opinion, the case against the accused is strong. I outlined the case at [24] to [28] of Tekle [1]. The CCTV footage, the accused's possession of a knife capable of causing the fatal injuries to the deceased and having on it DNA matching the profiles of both the accused and the deceased to a high degree of probability, and the injuries to the accused's hands, provide strong circumstantial evidence that the accused killed the deceased. The number and nature of the wounds inflicted upon the deceased provide strong evidence of an intention to kill. The accused's admissions strengthen the case against him further. At this stage, no submission has been made on behalf of the accused that the admissibility of the police interview may be called into question. Even if it were, the case against the accused remains a strong one. I do not have regard to the possibility of an insanity defence, as that issue has yet to be explored, and such a defence, if successful, would not result in the release of the accused in any event.
The charge on indictment is for murder, the most serious offence in our criminal law. It carries a maximum penalty of life imprisonment. The alleged circumstances of the offence are horrific. The accused is alleged to have stalked and killed an innocent man at the victim's home. It appears he did so because of a delusional belief. Even if that belief had been true, it would not have justified or excused the accused's alleged conduct. The nature of the offence is such that, if the accused remained charged, he would be remanded in custody in the absence of exceptional circumstances.
There is nothing about the accused's personal circumstances, in terms of his age or health, to render a custody order inappropriate. His mental condition, namely an ongoing psychotic disorder that continues to be steeped in delusions that cause him to bear animus towards the Tekle family, makes a custody order necessary, given that the strength of the evidence against him indicates a capacity for extreme violence, and his statements to Dr Claassen indicate a belief that such violence was justified.
For the reasons I have already identified, a custody order is in the public interest. It is significant that, in the past, the accused has incorporated into his delusional construct, by way of delusions of reference, at least one person (at the language school) in respect of whom there is no suggestion of a real association with the Tekle family. While the accused continues to suffer from his psychotic disorder, he poses a serious danger to the community.
Future management of the accused
Dr Claassen acknowledged in cross-examination that part of the explanation for the accused's apparent improvement when he was first given Respiridone was likely to be the fact that he had been transferred for a period to the more therapeutic environment of the Frankland Centre at Graylands Hospital. It is desirable that all avenues be explored to enable the accused to recover from his mental illness. That would include examining the appropriateness of using other antipsychotic agents and placing the accused in a more therapeutic environment than prison. Of course, if it is ultimately determined that his mental illness is not capable of being treated, then it will not be possible to detain him in an authorised hospital.[47] However, it is in the interest of both the accused and the community, in particular the family of the deceased, for the accused to be brought to trial, if his condition can be treated to the point where he becomes mentally fit to stand trial. By virtue of s 19(7), the accused may again be indicted and tried for the offence, if he becomes fit to stand trial.
[47] Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 24(2).
As Gleeson CJ pointed out in Eastman, at [24]:
Unfortunately, it is not unusual for the criminal justice system to have to deal with people with mental disorders; sometimes severe disorders. The existence of the disorder does not, of itself, prevent them from being brought to trial. It certainly does not mean that they must be allowed to be at liberty. It is not to be overlooked, as Deane and Dawson JJ pointed out in Kesavarajah v The Queen, that the usual consequence of a finding that a person is unfit to plead is indefinite incarceration without trial. It is ordinarily in the interests of an accused person to be brought to trial, rather than to suffer such incarceration.
Given the circumstances of this case, the accused is likely to suffer indefinite incarceration under the custody order if he does not become mentally fit to stand trial.
Orders
I order that:
1.Indictment 263 of 2016 be quashed;
2.The committal in respect of Charge PE 29643/2015 be quashed;
3.The charge of assault occasioning bodily harm the subject of Charge PE 29643/2015 be dismissed; and
4.The accused be kept in custody in accordance with pt 5 of the Criminal Law (Mentally Impaired Accused) Act 1996.
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