THE STATE OF WESTERN AUSTRALIA -v- BROOKE [No 3] [2025] WASC 474 (7 November 2025)

1. I therefore made an order, on 15 September 2025, that:

The question of whether the accused attends the special proceeding will be determined on the papers prior to the proceeding following receipt of a report from Ms Alison Sah.

1. On the evening of 28 October 2025, Ms Brennan advised my chambers that she had been informed by Ms Sah that Ms Sah was no longer permitted to provide a report, despite Ms Sah having informed Ms Brennan on 25 September 2025 that she had been granted permission to do so. Ms Brennan also confirmed that in response to other inquires she had made, that the Department of Justice's Psychological Health Service does not provide reports, letters, or any form of professional opinion for use in court or legal proceedings under any circumstances.
2. I listed an urgent directions hearing the following day. In addition to the parties, Mr Lloyd from the State Solicitor's Office appeared, at short notice, for the Department of Justice. I record my gratitude for his doing so.
3. At the directions hearing on 29 October 2025, Ms Brennan confirmed that she was comfortable asking Ms Sah the questions 'cold' (that is without a written report) as to whether or not Mr Brooke's attendance at the proceedings for the special proceedings would cause him distress or would adversely affect him. Accordingly, I adjourned the directions hearing to 6 November 2025 and I granted leave to the accused to issue a witness summons to Ms Sah pursuant to s 159 of the Criminal Procedure Act 2004 (WA) to attend and give evidence on that day.
4. To be clear, I adopted this course not because of any reluctance on the part of Ms Sah to provide the necessary information to the Court, but to avoid any difficulty that she might have as a consequence of not having 'permission' to do so.
5. On 3 November 2025 Ms Allen of the State Solicitor's Office forwarded a copy of a report from Ms Sah in relation to Mr Brooke, obviating the need for the directions hearing on 6 November 2025.
6. Ms Allen confirmed that, while Ms Sah was not aware of the orders that I had made on 15 September 2025, she had been informed by Ms Brennan that she has been nominated to provide information to the Court and that she had confirmed in the email to Ms Brennan of 25 September 2025 that she had been granted permission to provide that information. Ms Allen confirmed that the contrary position was only first conveyed to Ms Brennan on 27 October 2025.
7. The information provided by Ms Brennan as to what had occurred at the directions hearing on 15 September 2025 was, of course, entirely correct. Ms Brennan had indeed nominated Ms Sah as a person able to provide a report. The order that I made was not an order directed to Ms Sah to prepare a report but an order that I would determine the issue of Mr Brooke's attendance upon receipt of a report from Ms Sah. Until 28 October 2025 there was no suggestion of any difficulty in providing the report, such that it would require an order compelling its provision.
8. Be that as it may, the report has now been provided. In the report Ms Sah concisely but comprehensively sets out Mr Brooke's current presentation and the issues arising from her interactions with him. The report concludes:

In recent months Ian has consistently asked that he not be present in court during sentencing. ... Mr Brooke has reported that his experience in the courts for fitness testing earlier this year, [was] frightening confusing and overwhelming.

It is my clinical opinion that Ian's mental health and wellbeing would be adversely impacted from having to be present at the special proceedings for this charge, where the court will be receiving evidence about Ian's actions with respect to his brother. An exacerbation of the risk and vulnerability factors outlined above would be expected during this period, which would be likely to place him added increase risk of self-harm and suicidal behaviours

1. I thank Ms Sah for her report.
2. In light of Ms Sah's opinion, I have no hesitation in making an order under s 42 of the CLMI Act that the special proceeding proceed in Mr Brooke's absence, given the risk to Mr Brooke in his attending. In that context, I am confident that Mr Brooke's best interests will be well met by Ms Brennan's representation of him.
3. I therefore order that the special proceeding listed for 1 December 2025 proceed in the accused's absence.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The State of Western Australia v Brooke [No 2] [2025] WASC 386 (The State of Western Australia v Brooke [No 2]).

[2] The State of Western Australia v Brooke [No 2] [26].

[3] The State of Western Australia v Brooke [No 2] [28].