THE STATE OF WESTERN AUSTRALIA -v- BROOKE [No 2] [2025] WASC 386 (16 September 2025)

(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

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

1. As a consequence of her Honour's findings, Forrester J ordered, pursuant to s 37(3) of the CLMI Act, that a special proceeding take place under pt 3, div 3, sub-div 3 of the CLMI Act.
2. That special proceeding is listed to be heard by me from 1 to 5 December 2025.
3. The nature of a special proceeding is set out in s 41 of the CLMI Act, which provides:

41. Nature of special proceedings

(1) The purpose of a special proceeding is for the court, constituted by a magistrate or judge sitting alone, to decide the charge against the accused, on the evidence available.

(2) In deciding the charge the court may find that the accused -

(a) is not guilty (other than as described in paragraph (b)); or

(b) is not guilty on account of mental impairment under The Criminal Code section 27; or

(c) committed the offence charged or another offence which, on the charge, the accused might be found to have committed.

(3) To find that the accused committed an offence, the court must be satisfied beyond a reasonable doubt.

(4) The decision of the court must include the reasons for its decision but the validity of a decision is not affected by a failure to comply with this subsection.

1. In the present case, the parties are agreed that the relevant issue for the purposes of the special proceeding will be whether Mr Brooke is not guilty on account of mental impairment under s 27 of the Criminal Code. There is no substantial contest in relation to the facts concerning the events on 20 November 2023 or Mr Brooke's actions on that date.
2. For these reasons, the parties do not envisage that it will be open to me to make a finding under s 41(2)(a) of the CLMI Act. That is, the parties are agreed that the real issue will be whether the court should make a finding under either s 41(2)(b) or s 41(2)(c) of the CLMI Act.
3. The matter came before me this morning for directions in relation to a number of issues concerning the conduct of the special proceedings. The conduct of special proceedings is dealt with in s 42 of the CLMI Act, which provides:

42. Conduct of special proceedings

(1) A special proceeding may be conducted in the manner that the court considers appropriate in the circumstances of the case, including without holding a hearing.

(2) However, the court must, to the extent practicable, endeavour to conduct the proceeding as if it were an ordinary criminal proceeding.

(3) In determining the manner in which a special proceeding is to be conducted, the court must confer with the parties to the proceeding.

(4) Without limiting subsection (1), for the purposes of a special proceeding -

(a) the accused is taken to plead not guilty; and

(b) the accused may raise any defence that the accused could raise at a trial; and

(c) the rules of evidence apply, subject to any modifications determined by the court; and

(d) the accused may give evidence.

(5) Subsection (4)(d) does not imply that the court must hold a hearing.

1. I will deal, in turn, with the issues that arose before me.

1. The first issue concerned the extent to which out-of-court statements made by Mr Brooke, in particular to psychiatric experts, should be received as admissible evidence for all purposes, in addition to hearsay purposes (that is, as evidence of the truth of those statements).
2. In that regard, both Dr Adam Brett and Dr Rajan Darjee, in their expert reports, have recounted the history given by Mr Brooke in their interviews with him, including in relation to the lead-up to the events alleged to constitute the offence on 20 November 2023. While there may be bases upon which certain of those statements may be admissible as evidence of their truth in any event (as admissions or as evidence regarding symptoms and sensations being experienced at the time of the interviews),[4] there may nevertheless be aspects of Mr Brooke's psychiatric history given by him in those interviews that are strictly hearsay (and would ordinarily need to be the subject of direct evidence).
3. Both parties are agreed that Mr Brooke is not fit to give sworn evidence in relation to those factual matters. That is consistent with the finding of Forrester J that Mr Brooke is unable to decide whether to give evidence, or to give evidence if he wished to do so.[5]
4. In those circumstances, the question naturally arises as to the extent to which the court should depart from the ordinary rules of evidence, as contemplated by s 42(4)(c) of the CLMI Act, so as to enable the special proceeding to be conducted fairly and effectively.
5. That involves the exercise of a discretion, which is to be exercised in the interests of justice having regard to the statutory purposes revealed by the CLMI Act. In that context, in exercising any discretion under the CLMI Act, I must take into account the principles set out in s 7(2) of the CLMI Act. Those principles include 'that persons with mental impairment in the justice system should be provided with the best possible treatment, care and support'[6] and 'that persons with mental impairment in the justice system should be dealt with in a manner that is culturally appropriate'.[7] These provisions, and indeed the CLMI Act generally, reflect a legislative purpose of ensuring the dignified treatment of persons suffering mental impairment and require special proceedings to be conducted in a manner that is conducive to the proper care and treatment of such persons.
6. In the circumstances, I am satisfied, having regard to the findings made by Forrester J, that it is appropriate to modify the rules of evidence for the purposes of the special proceeding, to enable a complete picture of Mr Brooke's history to be adduced without the need for him to give evidence. Both parties were agreed as to that course.
7. In that context, it is also relevant that the only matter in issue between the State and Mr Brooke is whether, under s 27 of the Criminal Code, the Mr Brooke is not criminally responsible for the act or omission on account of mental impairment.
8. Pursuant to s 42(4) of the CLMI Act, the court must, to the extent practicable, endeavour to conduct the proceeding as if it were an ordinary criminal proceeding. An 'ordinary criminal proceeding' in circumstances such as the present case, where the only fact in issue is whether s 27 of the Criminal Code applies, may involve a judge deciding the case 'on any evidence and in any manner that the judge thinks fit' (Criminal Procedure Act 2004 (WA) (Criminal Procedure Act), s 93(1)(d)). That, in turn, may involve the admission of evidence that might otherwise be hearsay. It is commonplace in cases in which the only fact in issue is whether s 27 of the Criminal Code applies that, with the consent of the parties, statements made by an accused to an expert as to their psychiatric history is received as truth of that history without the need for the person to give evidence.[8]
9. Accordingly, applying s 93 of the Criminal Procedure Act by analogy, and otherwise having regard to the principles in the CLMI Act, in my view, it is in the interests of justice that the out‑of‑court statements made by Mr Brooke be received as evidence of the truth of those statements.
10. For that reason, I make an order pursuant to s 42(1) and s 42(4)(c) of the CLMI Act that the special proceeding shall proceed upon the basis that the parties may adduce evidence of out‑of‑court statements by the accused as evidence of the truth of those statements.

Mr Brooke's attendance at the special proceeding

1. The second issue that arose at this morning's directions hearing concerned whether Mr Brooke should attend the special proceeding itself.
2. In that respect, as the parties agreed, the ordinary conduct of a criminal trial requires that the accused be present. In that regard, s 88(3) and (4) of the Criminal Procedure Act, provide:

(3) Proceedings that relate to an accused must take place in his or her presence unless section 140 or the Sentencing Act 1995 provides otherwise.

(4) The court may order proceedings that relate to an accused to proceed in the accused's absence if it is satisfied -

(a) that the accused's interests will not be prejudiced by his or her absence; and

(b) that to do so will not be contrary to the interests of justice.

1. Section 88(4) of the Criminal Procedure Act, accordingly, identifies circumstances in which an 'ordinary criminal proceeding' may proceed in the accused's absence. In addition to that power, in my view, the court's power to determine the manner in which a special proceeding may be conducted pursuant to s 42(1) is sufficiently broad to enable the court to order that the proceeding proceed in the absence of the accused in an appropriate case. Indeed, s 42(1) contemplates that, in an appropriate case, the court may conduct a special proceeding without holding a hearing. Conducting a special proceeding without holding a hearing would, by definition, involve the proceeding being conducted otherwise than in the presence of the accused.
2. In determining whether or not it is appropriate to make an order excusing an accused from attendance from a special proceeding, the court will be guided (by analogy) by the requirements of s 88(4) of the Criminal Procedure Act. In addition, the interests of justice in a case such as this would also include the principles in s 7 of the CLMI Act that I referred to earlier, such as the proper treatment, care and welfare of an accused person suffering from a mental impairment.
3. For these reasons, where it would cause an accused person undue distress and potentially adversely affect their state of mental health for them to attend a special proceeding, in my view the court has power under s 42 of the CLMI Act to order, in an appropriate case, that the special proceeding proceed in the accused's absence.
4. Each case will turn on its own facts, but in a case such as the present, where the accused's interests are being represented by an experienced practitioner who is exercising independent discretion in the accused's best interests, in my view, the court could be satisfied that the accused's interests would not be prejudiced by his absence, and that it would not be contrary to the interests of justice to proceed in the accused's absence.
5. In the present case, I do not presently have sufficient material before me as to the potential impact of the special proceedings upon Mr Brooke to make a final determination in that regard. Nevertheless, Mr Brooke's counsel indicated that she would obtain a report in relation to that question from a psychologist who is in regular contact with Mr Brooke, Ms Alisha Sah.
6. For that reason, I order that the question of whether Mr Brooke attends the special proceeding be determined on the papers prior to the special proceeding, upon receipt of a report from Ms Sah.

The independent discretion of the accused's counsel

1. Related to the issue of Mr Brooke's attendance is the fact that, in the present case, Mr Brooke has been found unable to give instructions to the legal practitioner representing him.[9] In those circumstances, s 38(2) and s 38(3) of the CLMI Act are engaged. They provide:

(2) If the accused is unable to instruct their legal practitioner, the legal practitioner may exercise an independent discretion and, in doing so, must act in a way that they reasonably believe to be in the accused's best interests.

(3) If there is a question as to the extent to which the accused is able to instruct a legal practitioner or is able to make admissions, the question must be determined by the court.

1. In my view, no question arises as to the extent of Mr Brooke's ability in that regard. There is nothing in the material before me to suggest that Mr Brooke may be able to provide instructions or make admissions in relation to some, but not other, issues. Accordingly, prima facie, no question arises under s 38(3) of the CLMI Act. Mr Brooke's counsel will therefore exercise an independent discretion in relation to all issues in the case and, in doing so, will act in a way that she reasonably believes to be in the accused's best interests.
2. As I said in Chokolich,[10] the independent discretion reposed in legal practitioners under the CLMI Act is vitally important. Not only does it ensure that legal practitioners are authorised to exercise that discretion in the best interests of their client, notwithstanding the inability of that client to give instructions, the efficacy of the operation of the CLMI Act as a whole depends upon them doing so.[11]
3. This, of course, does not mean that an accused would not be consulted in relation to the conduct of the proceedings, or that the practitioner would not take into account the accused's wishes and desires in representing the accused. Taking those matters into account forms part of acting in a way that is in the accused's best interests. Nevertheless, it remains the case that, having done so, s 38(2) provides that the decisions made in the course of the special proceeding are reposed in the independent discretion of the legal practitioner.
4. The matter will otherwise be adjourned to the special proceeding on 1 December 2025 with liberty to apply for further directions.

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

Research Associate to the Hon Chief Justice Quinlan

[1] The State of Western Australia v Brooke [2025] WASC 304 (The State of Western Australia v Brooke).

[2] The State of Western Australia v Brooke, [105] (Forrester J).

[3] The State of Western Australia v Brooke, [101] (Forrester J).

[4] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, 648-9; The State of Western Australia v Quartermaine [2020] WASC 458 [153] - [157] (Hall J).

[5] The State of Western Australia v Brooke, [101(d)] (Forrester J).

[8] See, e.g., The State of Western Australia v Petersen-Crofts [2021] WASC 47.

[9] The State of Western Australia v Brooke, [101(a)] (Forrester J).

[10] The State of Western Australia v Chokolich [2024] WASC 346 (Chokolich)