ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- AH BY HIS NEXT FRIEND THE PUBLIC ADVOCATE [2026] WASC 96 (24 March 2026)

1. On 2 July 2024, the respondent appeared in Perth Magistrates Court in relation to the Index Offences. Her Honour Magistrate Cullen found the respondent unfit to stand trial, dismissed the charges, and made a custody order pursuant to s 16(5)(b) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (Repealed Act). Her Honour determined the respondent presented an unacceptable risk to the community and to those who are tasked to care for him.[2]
2. The Repealed Act was replaced by the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act). The transitional provision of s 254 in pt 14 of the CLMI Act provides that a custody order made under the Repealed Act in effect immediately before the commencement day has the effect as if it were a custody order made under pt 5 of the CLMI Act. The CLMI Act came into operation on 1 September 2024. Pursuant to s 254(2) of the CLMI Act, the existing custody order imposed by Magistrate Cullen continues to have effect as if it were a custody order made under pt 5 of the CLMI Act.
3. On 9 October 2024, Chief Magistrate Heath set a limiting term of two years for the existing custody order, taken to commence on 31 March 2024. The limiting term will expire on 30 March 2026.[3]
4. Division 3 of pt 6 of the CLMI Act provides for the Mental Impairment Review Tribunal (Tribunal) to determine places of custody. Section 62(1) of the CLMI Act provides that the Tribunal must not determine a supervised person is to be detained in a prison or detention centre unless it is satisfied there is no available alternative place of custody that would be suitable. On 5 July 2024 the Tribunal determined the place of custody for the respondent was to be prison.[4]
5. The respondent is currently detained at Casuarina prison.[5] He was placed in the Crisis Care Unit on 22 May 2025 and is housed under a highly restrictive regime where he is locked in his cell for most of the day in solitary confinement.[6]
6. Under s 103(3) of the CLMI Act the Tribunal reviewed the respondent's matter in September 2025 and prepared a report to the Attorney General of Western Australia (applicant) recommending the applicant apply for an extended custody order.
7. By way of application dated 9 March 2026, the applicant applies for:

(1) an extended custody order for the respondent pursuant to s 105(1) of the CLMI Act;

(2) the making of an interim custody order under s 107(2) of the CLMI Act pending the determination of the extended custody order application; and

(3) orders pursuant to s 106(1) of the CLMI Act that the respondent be examined and reports prepared.

1. The respondent is currently a 'supervised person' as defined in s 9(1) of the CLMI Act, as he is subject to a custody order. It is not possible for the applicant to apply for an interim community supervision order in relation to a supervised person who is subject to a custody order.
2. The applicant relies on the McDonnell Affidavit in support of the application for an interim custody order.

Applications for extended orders under the CLMI Act

1. Division 3 of pt 7 of the CLMI Act provides for applications for extended custody and supervision orders under that Act.
2. Section 105 of the CLMI Act provides that the applicant may apply for an extended order.
3. Section 106 of the CLMI Act provides for the preparation of reports as follows:
   1. Report to be prepared for application

(1) If an application is made for an extended order in respect of a supervised person, the court -

(a) must order that the person be examined by a psychiatrist, psychologist or other appropriate expert and that a report be prepared and submitted to the court; and

(b) may make any related orders it considers appropriate.

(2) The Minister must arrange for the examination and report.

(3) A report under subsection (2) must set out -

(a) in relation to an application for an extended custody order - the expert's assessment of the likelihood that the supervised person will commit a serious offence if not subject to an extended custody order; and

(b) the expert's assessment of the supervised person's rehabilitation, retraining or resocialisation requirements; and

(c) the reasons for the expert's assessment.

1. Section 107 of the CLMI Act provides for the making of interim custody orders. That section provides:
   1. Interim custody orders

(1) If, after an application for an extended custody order is made but before the application is determined, the current custody order will or is likely to expire, the Minister may apply to the Supreme Court for an interim custody order in respect of the supervised person.

(2) If the court is satisfied that, to ensure the adequate protection of the community, it is desirable that the supervised person continue to be subject to a custody order while the application for an extended custody order is yet to be determined, it may make an interim custody order in respect of the person, which has effect until the application for the extended order is determined.

1. Section 107(4) of the CLMI Act provides that if an interim custody order is made, pt 6 of the CLMI Act applies as if the interim custody order were a custody order.
2. The making of a final custody order is provided for in s 110 of the CLMI Act.
3. A person performing a function under the CLMI Act must have regard to the principles in s 7(2) of the CLMI Act. The objects and principles are set out in s 7(1) of the CLMI Act. Section 8 provides that the paramount consideration of a person when performing a function under the CLMI Act is the protection of the community.

1. The background to the application is set out in the McDonnell Affidavit and its attachments, as well as the applicant's outline of submissions in support of the current application for an interim custody order dated 18 March 2026. In summary, the following matters are relevant to the present application.
2. The respondent is currently 27 years old. He is a Yamatji Aboriginal man.[7] He is subject to guardianship and administration orders. His guardian, Mr Singh from the Office of the Public Advocate, is involved in his care.[8]
3. The respondent is one of five children. He has two sisters, one of whom resides in Karratha. The other is deceased, having died by suicide when the respondent was a child. The respondent discovered his sister and unsuccessfully tried to resuscitate her, causing him deep distress and lasting trauma. Following this incident, the respondent's drug, alcohol, and solvent use escalated.
4. The respondent's two brothers were adopted and live in Queensland.
5. Both of the respondent's parents engaged in significant alcohol and drug use. His mother is now deceased. His father had an intellectual disability and was diagnosed with schizophrenia. The respondent was raised in a disruptive care environment and comes from a background of significant disadvantage. He has been in and out of care, through Child Protection Services, since the age of 5.
6. The respondent has spent the majority of his life detained in custody, either at psychiatric facilities or in prison.
7. Although the respondent has not been convicted of a 'serious offence' as defined in the CLMI Act,[9] he has a lengthy criminal history, dating back to 2010 when he was 12 years of age. The respondent's relevant offending since 28 February 2012 is outlined in the McDonnell Affidavit.[10] The respondent's criminal history includes convictions for aggravated burglary, steal motor vehicle, instances of physical violence including numerous assaults on public officers, being armed with a firearm, unlawful and indecent assault, traffic related offences including no authority to drive and failure to stop, drug offences, and breach of court orders. He has been sentenced to a variety of dispositions, including supervision orders and multiple terms of imprisonment.[11] He has a history of non‑compliance with supervision orders. The Index Offences were committed very shortly after being unconditionally released into the community having secured specialist housing and two full‑time carers under the National Disability Insurance Scheme (NDIS).
8. The respondent has proved difficult to manage in custody and has continued to display unpredictable, impulsive, and violent behaviour in custody, resulting in 13 reports of violence against prison staff.
9. The respondent has a primary diagnosis of an intellectual disability, due to Fetal Alcohol Spectrum Disorder (FASD). It is assumed this co‑occurs with a psychotic illness, such as schizophrenia, as he is documented to have presented with psychotic symptoms in the past. It is possible his apparent psychotic symptoms are part of his intellectual disability.[12]
10. The respondent was admitted to the Frankland Centre Maximum Security Mental Health Unit between 30 September 2020 and 30 July 2021. His psychiatrist during this admission, Dr Rachael Griffiths, states he was unable to be managed. He regularly assaulted male and female staff and peers, and no amount of medication, de‑escalation techniques, or security measures that were legally and ethically allowed in hospital resolved his propensity to assault others.[13]
11. In the opinion of Dr Griffiths, the respondent is not safe to be managed in the community, as he poses too great a risk to males and females of all ages and all roles.[14] Community Forensic Mental Health Services will not offer case management for the respondent if he is released from prison, as it is Dr Griffiths' opinion that it is not safe for any Community Mental Health Service or NDIS provider to provide him a service outside of the prison environment. Dr Griffiths is of the opinion the respondent would benefit from long‑term institutional care to manage his primary intellectual disability.[15]

1. Counsel for the respondent has indicated that the respondent's existing communication partner from the Department of Justice's Communication Partner Program, appointed on the recommendation of the Tribunal pursuant to s 21 of the CLMI Act, should be appointed by the court for the purposes of the extended custody hearing.
2. Under the relevant provisions of the CLMI Act, the court may have regard to the extent to which reasonably available 'support measures' will enable a supervised person to give evidence or otherwise communicate with the court.[16] Accordingly, the court may order a supervised person be provided with any reasonably available support measure.
3. A 'communication partner', defined in s 21 of the CLMI Act, is an example of a support measure that may facilitate participation of a supervised person in proceedings before the court. The function of a communication partner is to communicate any questions put to the supervised person and to communicate any response from the supervised person to the court.[17]
4. Under reg 4 of the Criminal Law (Mental Impairment) Regulations 2024 (WA) (CLMI Regulations) the court may appoint a communication partner and may hold a hearing (a ground rules hearing) for the purpose of making necessary orders in relation to either the communication and support needs of the supervised person or the communication partner.
5. On 8 August 2025, Ms Claudia Rodriguez conducted an assessment of the respondent. At the request of the Tribunal, Ms Rodriguez prepared a communication partner court report and recommendations in respect of the respondent.[18] The respondent declined to engage in the assessment after 10 minutes. Ms Rodriguez sets out in her report advice on the most effective way to communicate with the respondent and her recommendations as to adjustments to enable the best communication and participation of the respondent at hearings.
6. I make orders pursuant to s 21(1) of the CLMI Act that Ms Rodriguez be appointed as the communication partner to the respondent for the purposes of an extended custody hearing. The parties should confer in relation to the reasonable accommodations that can be made in the court process for the respondent and as to whether a ground rules hearing should be conducted with Ms Rodriguez present.

Whether an order under s 106 CLMI Act should be made

1. The applicant seeks orders that the respondent be examined by a psychiatrist for the purpose of preparing a report under s 106(1) of the CLMI Act. Section 106(1)(a) of the Act provides I must order the respondent be examined by a psychiatrist, psychologist or other appropriate expert.
2. I am therefore required to order that the respondent be examined by a psychiatrist, and I will make that order. The applicant proposes the respondent undergo examination by one qualified expert psychiatrist, namely Dr Gosia Wojnarowska, for the purposes of preparing a report as required by s 106(1) of the CLMI Act, having regard to the requirements of s 106(3).
3. I am also satisfied it is appropriate for the respondent to be examined by a neuropsychologist, and I will make that order. The parties will advise the court as to the appropriate expert after conferral.
4. Pursuant to s 106(1)(b) of the CLMI Act, Adult Community Corrections, Corrective Services, Department of Justice is to produce a 'Case Manager's Report' including a 'Proposed Management Plan', which is to be provided to the applicant at least 35 days prior to the date of the hearing of the extended custody order application. I will also make that order.

Whether an interim custody order should be made

1. Turning to whether an interim custody order should be made, s 107(2) of the CLMI Act provides that I may make an interim custody order if I am satisfied that, to ensure the adequate protection of the community, it is desirable the supervised person continue to be subject to a custody order while the application for an extended custody order is yet to be determined.
2. If no interim custody order is made, the respondent will be released unconditionally after the current custody order expires on 30 March 2026.
3. The respondent's most recent psychiatric report is that of Dr Elizabeth Tate, dated 13 August 2025. Dr Tate states the respondent:[19]

(a) is at a 'very high level of risk and need';

(b) can escalate to violence very quickly with minimal or no apparent external trigger;

(c) presents a significant risk of impulsive acts which can lead to serious or life‑threatening violence; and

(d) can only be managed in a secure environment.

1. Dr Tate reports that the typical risk scenario for the respondent is in a secure environment and involves a rapid escalation to reactive violence with a minor or no obvious precipitant. Dr Tate says the respondent may punch, kick or spit at people, run towards people to attack them, throw items at people or use weapons immediately to hand including handcuffs. Dr Tate says that his violence is most likely to result in bruising or soft tissues injuries but could escalate to serious or life‑threatening violence. Dr Tate says that, if the respondent were in the community, victims of the respondent's violence could include members of the public, staff or public officers. The respondent does not appear to discriminate on the basis of age, gender or other factors. The respondent may pursue victims and is more likely to become aggressive when under stress of using alcohol or illicit drugs. The respondent may use weapons to cause serious injuries and he may sexually assault female staff.
2. Incidents of violence by the respondent have been documented in the community, hospital, and prison setting. He is prone to sexualised behaviour, which has in the past been addressed in prison by the administration of antilibidinal medication, but this was discontinued in 2019.
3. Prior to his detainment on the current custody order, the respondent had a NDIS package in excess of $2.5 million per annum. That package included a ratio of 3:1 care from trained staff, purpose modified accommodation, a plan in place for the administration of his medication and support services to manage his behavioural concerns. However, even that level of support did not prevent the respondent from reoffending in a dangerous manner, putting his caregivers and members of the public at risk of serious harm.[20]
4. The respondent has a current NDIS plan approved on 10 December 2025 for a period of 12 months.[21] He has a funding package of $1,347,400.83 which includes agency managed specialised disability accommodation, home and living, improved daily living skills and behaviour support. This is not sufficient to address his complex needs and high risk of offending.
5. The respondent has no known familial support, no suitable accommodation in the community, and no viable release plan. Dr Tate states the respondent cannot be safely cared for in the community as he is a danger to himself and others who would be caring for him. In Dr Tate's opinion, the respondent can only be managed in a secure care environment.
6. Based on the expert evidence, I am satisfied that it is desirable that the respondent continue to be subject to an interim custody order until the application for an extended custody order is determined to ensure adequate protection of the community.
7. I make orders in terms of the applicant's minute of proposed orders that the respondent be subjected to an interim custody order until the application for the extended custody order is determined.

1. For the reasons above, I make orders in the following terms:

1. The name of the respondent be amended to 'AH by his next friend the Public Advocate'. 2. Pursuant to section 107(2) of the Criminal Law (Mental Impairment) Act 2023, the respondent be subject to an interim custody order until the application for the extended custody order is determined. 3. Pursuant to section 21(1) of the Criminal Law (Mental Impairment) Act 2023, Ms Claudia Rodriguez be appointed as the communication partner to the respondent. 4. The parties confer in relation to the reasonable accommodations that can be made in the court process for the respondent and whether a ground rules hearing be conducted with Ms Rodriguez present. 5. The hearing of the application for an extended custody order pursuant to section 105(1) of Criminal Law (Mental Impairment) Act 2023 be heard on 26 August 2026. 6. The respondent undergo examination by two qualified experts, namely Dr Gosia Wojnarowska, psychiatrist, and namely one neuropsychologist, to be confirmed by the applicant, for the purposes of preparing a report as required by section 106(1) of the Criminal Law (Mental Impairment) Act 2023, having regard to the requirements of section 106(3), that is to be used on the hearing of the extended custody order application. 7. The experts named in order 6 are not to include in their reports information or opinions about the respondent based on a communication with a third person unless details of that communication sufficient to identify the person with whom the communication was held, its date and a summary of its content are included in the expert's report. 8. The report of the experts be provided to the applicant at least 42 days prior to the hearing of the extended custody order application. 9. Pursuant to s 106(1)(b) of the Criminal Law (Mental Impairment) Act 2023 Adult Community Corrections, Corrective Services, Department of Justice, is to produce a 'Case Manager's Report' including a 'Proposed Management Plan', which is to be provided to the applicant at least 35 days prior to the date of the hearing of the extended custody order application. 10. Pursuant to section 55(4)(a) of the Criminal Law (Mental Impairment) Act 2023, Adult Community Corrections, Corrective Services, Department of Justice, is to produce an 'electronic monitoring report', which is to be provided to the applicant at least 35 days prior to the date of the hearing of the extended custody order application. 11. The experts named in order 6 are to liaise with Adult Community Corrections, Corrective Services, Department of Justice, and the Respondent's legal guardian appointed under the Guardianship and Administration Act 1990 (WA), and the respondent's positive behaviour therapist as to the development of the 'Proposed Management Plan' referred to in order 9. 12. At the hearing of the extended custody order application, the reports provided by the expert named in order 4 shall stand as the evidence in chief of the expert and no further evidence in chief may be adduced without the leave of the Court. 13. Access to documents filed in these proceedings, that are categorised as containing restricted information, is limited to:

(a) the parties and their legal representatives; and
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> (b) judges and registrars of the Court and their staff; and
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> (c) any Court officer who is required to deal with the documents for the purposes of these proceedings; and
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> (d) any person required by the Criminal Law (Mental Impairment) Act 2023 (WA) and/or and Criminal Law (Mental Impairment) Regulations 2024 (WA); and
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> (e) any other person ordered by the presiding judge.

1. There be liberty to the parties to apply generally.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1]Affidavit of Sean William McDonnell and Annexures 'A' to 'CV' affirmed 9 March 2026, page 1 [5] (McDonnell Affidavit).

[6] McDonnell Affidavit, page 129 [5].

[7] McDonnell Affidavit, page 173 [1.1].

[10] McDonnell Affidavit, pages 8 ‑ 22 [48] ‑ [148].

[11] McDonnell Affidavit, Annexure T, page 129 [7].

[13] McDonnell Affidavit, page 176 [8.1].

[18] McDonnell Affidavit, pages 235 ‑ 250.

[19] McDonnell Affidavit, pages 213 ‑ 229.

[20] McDonnell Affidavit, page 219 [3.18] ‑ [3.19].