THE STATE OF WESTERN AUSTRALIA -v- BROOKE [2025] WASC 304 (4 August 2025)

An accused is unfit to stand trial on a charge of an offence if the accused, because of mental impairment, is unable to do 1 or more of the following -

(a) understand the nature of the charge;

(b) give instructions to a legal practitioner representing the accused;

(c) understand the requirement to plead to the charge or the effect of a plea;

(d) understand the purpose of a trial;

(e) understand or exercise the right to challenge jurors;

(f) follow the course of the trial;

(g) understand the substantial effect of evidence presented by the prosecution in the trial;

(h) decide whether to give evidence, or to give evidence if they wish to do so;

(i) properly defend the charge.

1. The term 'mental impairment' is defined by s 9 of the CLMI Act to mean any of, or a combination of:

(a) an intellectual disability;

(b) a mental illness as defined in the Criminal Code s 1(1);

(c) an acquired brain injury; and

(d) dementia.

1. In the present case, the State contends that the accused's mental impairment is as a result of an intellectual disability.
2. If the court is satisfied that the accused is unfit to stand trial, and subject to being satisfied that the accused will not become fit to stand trial within the time frames set out in s 35 of the CLMI Act, the court must make an order under s 37. Relevantly, the court must order that a special proceeding take place under subdiv 3.[5]

1. It is alleged that on 20 November 2023, the accused was taken to a residence in Broome where his foster family lived. He entered the house and went to the bedroom of his foster brother, who he assaulted with a crowbar. The victim's father intervened. However, the accused is then alleged to have stabbed his foster brother multiple times with a knife, before leaving the house, discarding the knife in the front yard. The accused was located and arrested about 40 minutes later.

Evidence relied upon Report of Dr Adam Brett dated 27 November 2024 and supplementary report dated 7 May 2025

1. Dr Brett is a Consultant Psychiatrist who was asked to provide an opinion as to the accused's fitness to stand trial, as well as regarding the application of s 27 of the Criminal Code in the accused's case.
2. For the purposes of determining whether the accused is fit to plead, there are many aspects of Dr Brett's report dated 27 November 2024 which are, therefore, of limited, if any, relevance. That is because the issue of fitness is to be assessed in the present, whereas whether s 27 has any application in a particular case is to be assessed as at the date of the alleged offence. There is much of this report to which I will, therefore, not refer in this summary.
3. Dr Brett's reports were tendered by consent. The accused's counsel did not seek to cross-examine Dr Brett.
4. Dr Brett interviewed the accused on two occasions in November 2024. He had access to the prosecution brief, a large file of documents entitled 'Education and Training', two large files of medical records, and access to the Western Australian Mental Health database. He also had access to a psychiatric report of Associate Professor Darjee dated 8 July 2024. With the consent of both parties, I have been provided with the documents to which Dr Brett specifically referred in his report, but none of the remaining documents.
5. Dr Brett found the accused to be a poor historian who was often vague and gave contradictory information. He notes that the accused was unable to give a spontaneous comprehensive account of the alleged offence.

1. The accused is an Aboriginal man, born on 22 March 2002. He is now 23 years old. He said he was born in Broome.
2. The accused was born, weighing 1720 g, by caesarean section due to foetal distress. He had intrauterine growth retardation and small stature. He suffered from inattentiveness, hyperactivity and a global developmental delay.
3. The accused said he had never met his biological father. He said that his mother brought him up until he was about 7 or 8, after which she left him, and he was then placed in care. He said that he was aware that his mother used alcohol during her pregnancy with him.
4. The accused was unaware of any mental disorders in his family.
5. Documents indicate that the accused was dropped off at Derby Hospital when he was about 8 months old and was then awaiting foster placement. They also record that he was living with his foster parents at the age of 4, and that he had a high level of unsupervised contact with his birth father, about which concerns were raised.[6] The accused told Dr Brett that he experienced physical abuse at the hands of this man.
6. The accused was living with the same foster family at the age of 8 years old and was then documented to have a loving and nurturing home with them. His foster sister reported that, since they were children, the accused had a lot of anger and a grudge against the victim of the alleged offence, who was his foster brother.

1. The accused said that he attended Broome Primary School but struggled. He did not know why this was. He required a teacher's assistant. He did not think he got into trouble, but had few friends.
2. The accused said he went to the local high school, but it was stressful as he was unable to read or write. He was unable to say when he left school.
3. There is documentation indicating that the accused was subject to suspensions from school, some related to violent behaviour.
4. The accused remains unable to read or write.

1. The accused gave conflicting accounts of his substance use. While he said he had smoked cannabis with friends, he was unable to give an account of the quantity or frequency of his use. Collateral accounts suggest ongoing cannabis abuse.

1. A 2006 paediatric review noted that the accused had long standing poor growth associated with foetal alcohol syndrome.
2. In 2010, the accused was assessed by a paediatrician, who documented that the accused was exposed to alcohol during his mother's pregnancy and that he was 'suffering the effects of foetal alcohol exposure.' He was said to be hyperactive and unable to concentrate. It was recommended that he be trialled on stimulant medication.
3. In August 2010, a school psychologist reported that the accused was assessed regarding his cognitive ability and was found to be below average but not sufficiently impaired to make him eligible for increased resources.
4. Occupational therapy assessment reports in 2010 noted the accused to have handwriting and visual perception deficits.
5. In July 2011, the accused was assessed by a speech pathologist, who noted him to have moderate speech and language delay, consistent with other developmental areas.
6. Also in 2011, the accused was diagnosed with ADHD and Post-Traumatic Stress Disorder. A child and adolescent psychiatrist noted he had a good response to Ritalin, and also noted his borderline intellectual quotient.
7. By July 2012, a speech pathologist reported that the accused still had moderate speech and language delay but had progressed since his previous assessment.
8. The accused was assessed by a paediatrician in January 2015, and on this occasion was noted not to have been suited to stimulant medication. He was also referred to endocrinology for assessment of his 'poor height velocity'.
9. In 2016 and 2017, the accused was followed up with by Patches paediatrics. His ADHD and behavioural regulation issues were noted, and he underwent specific therapy in relation to his anger and emotional regulation.
10. The accused became involved in the criminal justice system in 2019 in relation to an offence committed by him, which caused him stress and mental health issues. However, he did not engage with counselling when referred.
11. In about 2023, the accused's foster mother noted that the accused seemed to think everything was poisoned, and she related this to his having started smoking cannabis. She became scared of his increasingly aggressive behaviour.
12. In July 2024, while the accused was in custody, he reported suffering anxiety and paranoia, and 'a bit of depression'. On review by a mental health nurse, he acknowledged auditory hallucinations but was poor at describing them. Later that day, he saw a counsellor who noted that his narrative was restricted by his intellectual impairments.
13. The counsellor described the accused as struggling to understand the legal ramifications of the alleged offence and said that he did not understand the legal proceedings, which exacerbated his anxiety. The counsellor also noted that the accused has no concept of time and was having difficulty understanding why he was still incarcerated and for how long he would remain so.
14. The accused continued to be seen in custody. In September 2024, in a psychiatric review, he said that the alleged offence occurred after he was given magic mushrooms, and he did not know what he was doing. He was assessed as having possible psychosis and was commenced on a trial of an antipsychotic. He was assessed as then being unfit to plead.
15. Over the following month, the accused was further reviewed. The accused's derogatory hallucinations were reduced, but still present. The reduction continued into November 2024. However, the accused was unable to describe his phenomena.

1. The accused was commenced on olanzapine on 30 September 2024. The accused told Dr Brett that he had been commenced on medication. While he did not know what it was, he said that it made his voices less intrusive, although he still experienced them.

1. According to Dr Brett, the accused had 'restricted affect', and there was a significant delay between questions and the accused's answers. He said that he still experienced auditory hallucinations, but they were not as distressing now that he was on medication. He had limited insight into his mental health issues, his legal issues or his treatment needs.
2. Dr Brett was of the view that the accused's cognition was consistent with previous testing. He was a poor historian and gave a poor chronology. He was also very vague and had an extremely poor short-term memory. In Dr Brett's opinion, '[t]here was evidence of frontal lobe deficits with poor verbal fluency and lack of executive function.'
3. Dr Brett considered that the appropriate diagnoses were:

(a) Foetal Alcohol Spectrum Disorder;

(b) Psychotic Disorder (not otherwise specified);

(c) Trauma Spectrum Disorder;

(d) Oppositional Defiant Disorder (historical);

(e) Attention Deficit Hyperactivity Disorder (historical); and

(f) marijuana abuse.

1. In Dr Brett's opinion, the accused has a mental impairment as defined in s 9 of the CLMI Act, both on the basis of an intellectual disability (including brain damage related to Foetal Alcohol Spectrum Disorder) and a mental illness (Psychotic Disorder).
2. Dr Brett also considered that the accused had a borderline IQ, and observed that his cognitive and mental health issues were not being comprehensively managed in the prison setting.

1. Dr Brett originally made his assessment as to whether the accused was fit to stand trial against the criteria laid out in s 8 and s 9 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (repealed Act). However, that legislation was repealed effective 1 September 2024. The relevant legislation in this case is the CLMI Act, and the criteria for assessment are set out in s 26 of the CLMI Act.
2. Dr Brett's supplementary report addressed his assessment of the accused's fitness to stand trial against the criteria in s 26 of the CLMI Act.
3. When compared with s 9 of the repealed Act, s 26 of the CLMI Act contains two additional matters which must be considered when assessing an accused's fitness to stand trial: his ability to give instructions to a legal practitioner representing him; and, his ability to decide whether to give evidence, or to give evidence if he wishes to do so. In reality, those matters were assessed under the factor of whether the accused had the capacity to properly defend the charge.
4. The other matters listed in s 9 of the repealed Act are replicated in s 26 of the CLMI Act. There is no reason why any of the matters should be assessed in a different manner to that in which they were assessed under the repealed Act.
5. Dr Brett was of the view that the accused was able to understand the nature of the charge, being aware that he had been charged with murder. The accused also had a 'basic understanding' of the requirement to plead to the charge and the basic effects of those pleas. While he had a very limited understanding of an insanity plea and its effects, Dr Brett was of the view that, with the assistance of counsel, this could be better explained to him.
6. In Dr Brett's assessment, the accused's mental impairment was of such a nature as to impair his ability to give rational instructions to a legal practitioner representing him, because of his vagueness, his changing of accounts, and his ongoing psychosis.
7. In Dr Brett's opinion, the accused had a basic understanding of the purpose of a trial, and with the assistance of counsel would be able to understand and exercise his right to challenge jurors.
8. However, Dr Brett considered that the accused's mental impairment would deprive him of the ability to follow the course of a trial. He explained that the accused has 'poor language skills and an extremely poor short-term memory' and said:

Even with regular recaps, I believe that he would struggle. I believe that this relates to his FASD and is not remediable by treatment of his psychosis.

1. For the same reasons, Dr Brett considered that the accused would be unable to fully understand the substantial effect of evidence presented by the prosecution in a trial, or to properly defend the charge.
2. Further, the accused's poorly treated psychosis and impaired cognition would be a mental impairment of such a nature as to deprive him of the ability to make a decision whether to give evidence or to give evidence if he wished to do so.
3. The nature of the accused's mental impairment is such that Dr Brett was of the view that the accused would not be fit to plead in the next six months. Further, Dr Brett did not consider that support measures could be put in place, which would mean that the accused would be fit to stand trial.

1. Dr Vidovich is a Senior Clinical Neuropsychologist. She prepared a report in relation to the accused dated 27 March 2025. Again, this report was tendered by consent, and the accused's counsel did not seek to cross-examine Dr Vidovich.
2. Dr Vidovich interviewed the accused for two and a half hours over two days in February 2025. She also had access to a number of other materials, including Dr Brett's report dated 27 November 2024. I have not been provided with the majority of the other material to which Dr Vidovich has referred.
3. Dr Vidovich noted that there are limitations on the psychological measures administered to the accused from a cultural perspective, due to a lack of normative data for Australian Aboriginals. However, the testing was completed in accordance with 'best practice and Australian Psychological Society Guidelines'.
4. Dr Vidovich commented that the accused consistently required instructions to be simplified and found the testing challenging, but attempted all tasks presented to him. Some adaptations were required to ensure comprehension and assessment.
5. Dr Vidovich noted that a school psychologist assessed the accused's cognitive ability using a non-verbal assessment tool in 2010 and found that the accused was performing in the 'Borderline' (very low) range (5th percentile for his age group). He was placed on an Individual Education Plan and provided extra support.
6. Documents also record that in year 5, the accused was still working towards the achievement of academic work at a year 1 level and making little progress towards academic milestones. Inattention, work refusal, absconding and non-compliance with instructions were noted. When he was 11 years and 5 months old, the accused was assessed to have a Full Scale Intelligence Quotient equivalent to that of a 4½ year old, with his score in the Extremely Low range for his age, with adaptive skills also well below his peer group. This resulted in a formal diagnosis of Intellectual Disability (Mild Severity).
7. Dr Vidovich referred to the review of the accused's case by Broome Hospital Mental Health Services on 18 and 20 November 2023, as the accused had been observed to be talking to himself, responding to unseen others, and reporting unusual thoughts related to people thinking or telling him that he smelled bad. He was to be offered an outpatient mental health appointment. It is noted that the alleged offence occurred on 20 November 2023.
8. At the time of his assessment, the accused was prescribed olanzapine (the dose of which was later increased). After the assessment, he was also prescribed diazepam to assist him to sleep.
9. Dr Vidovich noted that Consultant Forensic Psychiatrist Associate Professor Darjee had assessed the accused across three appointments in January, April and June 2024, and, while Associate Professor Darjee had found the accused to be acutely unwell requiring psychiatric treatment, he was of the view that the accused was fit to stand trial.
10. Like Dr Brett, Dr Vidovich described the accused as having a restricted affect and being a 'vague' historian. She said he had a 'clear response latency with his output incredibly slow, and a lack of spontaneity'.
11. The accused's account of his schooling was consistent with that given to Dr Brett.
12. The accused told Dr Vidovich that during the day, he felt bored and would 'walk around'. He might play ping pong. He said he was not very good at sports, did not know how to tie his shoelaces, and did not know which hand he should use for cutting when using a knife and fork. He had never learned how to drive. He said he had always been clumsy.
13. The accused also identified issues with his memory, such as forgetting to go to appointments and losing things. He was 'not quick' when it came to learning new information and required assistance with some activities. He thought he could live on his own, but did not know about managing things such as paying bills.
14. When asked to explain why a guardianship order was made in relation to him, the accused responded, 'since I was good'.
15. The accused said he did not like marijuana and had only used it once with friends.
16. The accused understood that he was taking medication to prevent him hearing voices, but said it only worked sometimes, and the voices scared him, more so at night. Sometimes they swore and yelled at him, and sometimes they were 'mumbley' and hard to understand. He would see shadows and feel like people were watching him, although less so now that he was medicated.
17. He was willing to continue with the medication and said that he sometimes resorted to banging his head on the wall to get rid of the voices. He worried about hurting himself, although this was less of a concern more recently, and he would call prison officers if he was very worried.
18. The accused also described having obsessive traits and experiencing symptoms of anxiety.
19. When asked, the accused was unable to independently recall his lawyer's name, although he recognised it when prompted. He was unable to provide any details of his current legal status. When asked about who was in the courtroom, he could only say 'important people'. He could not explain a plea, evidence, or what a trial was or what it involved, and said he had never heard the word 'jury'. He could not recall having participated in a police record of interview.
20. The accused understood he was charged with murder, but said he did not understand much of what his lawyer said, and also that he would not ask if he was uncertain about something. He was unsure but thought a person convicted of murder would probably receive a 'long sentence'.
21. When these matters were revisited with him at the time of the second appointment, the accused was unable to verbally explain the terms 'guilty' or 'not guilty'. His lawyer's role was, he understood, to help him, but he could not articulate how, and he was unsure what to do if he disagreed with advice or information presented by his lawyer. He could not describe the role of the judge.
22. Dr Vidovich reported that, despite having provided the accused with education regarding a jury and its role at the first appointment, at the second appointment, he was unable to say how many people sat on a jury and, as to their role, could only say 'guilty or not guilty'. He was not able to provide any information as to potential sources of evidence, and he did not know how the prosecution would perform its role, which he believed was to 'lock someone up'.

1. On a nonverbal screen of the accused's intellectual functioning, the accused's standardised score fell in the Extremely Low range. Such results as were able to be obtained from other testing also produced results consistently within that range.

Attention, working memory and processing speed

1. While the accused was able to maintain focus, he struggled when demands on him were increased. He had difficulty understanding the requirements of some of the tasks. Where he was able to complete the measures, his results were of an Extremely Low level, with 'very limited capacity to attend to and mentally manipulate information in mind.' Attentional errors, cognitive and visuo-motor slowing contributed to this result.

1. The accused had highly impaired expressive and receptive language skills. He had difficulty understanding information presented to him unless it was simplified, and his ability to express himself was significantly limited. He did not know the letters of the alphabet, the days of the week or the months of the year, and he could not count beyond 10. His skill sets were again formally assessed as being in the Extremely Low range, with his language abilities noted to formally test at a level consistent with that observed in a child aged four to five years of age.

1. The accused also struggled with drawing and fine motor activities, and copying even simple figures. Impairment was evident in visuospatial constructional skills, perceptual problem solving and non-verbal reasoning.

1. The accused's impaired language and visuo-constructional skills prevented the administration of most formal tests regarding his learning and memory, but on the one test he could complete, relating to immediate and delayed recall, he scored in the Extremely Low range. Qualitative tests did not suggest otherwise.

1. Again, there were limitations in measuring the accused's executive functioning due to his impairments. However, qualitative assessment showed his planning and organisation of information to be poor, and that he struggled across tasks which required problem solving, reasoning and abstraction. His performances on a series of mazes were in the Extremely Low range.

1. Dr Vidovich was of the view that the accused has a mental impairment, and meets the criteria for Intellectual Disability, noting also his diagnosis of FASD.
2. Dr Vidovich assessed the accused's fitness to plead against the criteria set out in s 26 of the CLMI Act.[7] She considered that the accused was capable of understanding, with education, the nature of the charge. He was able, again with support and education, to understand the requirement to plead to the charge and the effect of a plea, despite his difficulties expressing those concepts.
3. In Dr Vidovich's opinion, the accused was able to understand the purpose of a trial, at least in the moment, and to understand and exercise the right to challenge jurors. However, Dr Vidovich expressed doubt that he would actually actively engage in the process.
4. Dr Vidovich concluded that the accused was:

(a) unable to give instructions to a legal practitioner representing him. Not only was he unable to provide information as to previous interactions with his lawyer, or to clarify their role, his cognitive impairment and expressive and receptive language difficulties would present as a significant challenge to providing instructions.

(b) unable to follow the course of the trial. Again, having regard to the nature and severity of his intellectual and language deficits, his ability to comprehend and keep up with presented information would make following and understanding a trial extremely challenging. His slow processing speed, attentional limitations and memory difficulties would also impact in this area. Further, he does not have the capacity to abstractly think about information presented in court, or the implications or consequences of it.

(c) unable to understand the substantial effect of the evidence presented by the prosecution in the trial. The accused was either unable or unwilling to disclose information regarding the term 'evidence' and could not identify any example of evidence which could be presented in his case. Dr Vidovich considered that the accused would very likely have trouble comprehending the different weights, impact or effect of evidence.

(d) unable to decide whether to give evidence, or to give evidence if he wished to do so. Dr Vidovich was of the view that the accused's level of cognitive impairment and language deficits were such as to prevent him having this capacity, and further that his poor insight limited his ability to weigh up the benefits and risks of giving evidence.

(e) unable to properly defend the charge. In Dr Vidovich's opinion, the severity of the accused's impairments means that he is unable to properly defend the charge. Dr Vidovich observed:

Aside from being aware that he had a lawyer and needed to attend court, the accused could not communicate any other information in relation to his legal issues. He needed prompting and scaffolding, was vague and unresponsive and his potential for learning and retention of information is considered very limited. His attentional difficulties, slow speed of processing and higher-level executive impairments, further contribute to his challenges understanding, appreciating, and retaining relevant information/facts pertaining to his current legal matters. Collectively, the accused's cognitive and communication deficits mean that his ability to actively engage with his lawyers, and to defend his charges, would be markedly compromised.

1. In Dr Vidovich's assessment, even with the provision of supports such as education and/or the appointment of a next friend, the accused will struggle to develop an understanding of most of the issues pertaining to standing trial, and, given the severity, nature and permanency of his impairment, is unlikely to be able to do so in the future.

1. Both Dr Brett and Dr Vidovich are well qualified to give evidence in relation to the accused's fitness to stand trial. The evidence upon which they have relied is identified and, while much of it has not been supplied to me, each expert has set out the salient features of it, and it is clear how they have relied upon it in formulating their opinions. Further, and in any event, it is apparent that each has made an independent assessment of the accused in light of their interactions with him and testing of him, where that was possible.
2. Both Dr Brett and Dr Vidovich were of the opinion that, by reason of his mental impairment, the accused would be unable to follow the course of the trial, instruct his legal representative, understand the substantial effect of evidence presented by the prosecution in the trial, make a decision as to whether to give evidence in his trial or give evidence in his trial, or properly defend the trial.
3. It is well established that, where there is uncontradicted expert evidence, in the absence of evidence or circumstances which could displace or cast doubt upon that evidence, a tribunal of fact should not make findings contrary to that expert evidence.[8]
4. In the present case, I am satisfied that the evidence of each of Dr Brett and Dr Vidovich is cogent, and that the foundations of those opinions are clearly explained and the opinions well-justified. I have no basis upon which to reject the opinion of either expert.
5. It is necessary only that I be satisfied that the accused is unable to do one of the things set out in s 26 of the CLMI Act. However, on the basis of the evidence of the experts, and for the reasons they have expressed, I am satisfied that, in this matter at least, the accused is unable to:

(a) give instructions to a legal practitioner representing him (s 26(b) CLMI Act);

(b) follow the course of the trial (s 26(f) CLMI Act);

(c) understand the substantial effect of evidence presented by the prosecution in the trial (s 26(g) CLMI Act);

(d) decide whether to give evidence, or to give evidence if he wished to do so (s 26(h) CLMI Act); and

(d) properly defend the charge (s 26(i) CLMI Act).

1. I am further satisfied that the nature and severity of the accused's deficits are such that their effects cannot be sufficiently reduced by the provision of support measures. The accused's deficits in language, recall and processing mean that neither time, education, nor repeated explanation will enable him to perform the tasks he is presently unable to perform.
2. I am satisfied that the accused's inability to do those things is 'because of a mental impairment', namely an intellectual disability. While I am satisfied that he does have a psychotic disorder, namely a mental illness, and that it impacts his functioning and contributes to his cognitive deficits, I am satisfied that the primary deficits are a result of the accused's intellectual disability.
3. Accordingly, I am satisfied that the accused is not fit to stand trial.
4. As the accused's intellectual disability is a permanent one, which is not amenable to treatment, whether by the use of medication or other therapy, there is no prospect that the accused will become fit to stand trial within six months.
5. In those circumstances, I am required to make an order pursuant to s 37 of the CLMI Act, namely to order that a special proceeding take place under subdiv 3 of the CLMI Act, and I will do so.
6. The accused is remanded in custody until the special proceeding takes place.

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

[6] The accused said he was not certain that this man was his birth father.

[7] While Dr Vidovich's report referred to s 9 of the repealed Act, she also assessed the accused against the two additional matters only included in s 26 of the CLMI Act.

[8] Hone v The State of Western Australia [2007] WASCA 283 [124].