THE STATE OF WESTERN AUSTRALIA -v- TEKLE [2017] WASC 170 (22 June 2017)

4 At some stage before 25 November 2015, it became apparent the accused may be suffering from a mental impairment which could affect his mental fitness to stand trial. At that time, the charge was at the precommittal stage in the Stirling Gardens Magistrates Court (SGMC), and, on that date, a psychiatric report was requested by the court to deal with the issue of the accused's fitness to plead. The accused was examined by a forensic psychiatrist, Associate Professor S Bala, on 14 December 2015 and a report was provided by him on 16 December 2015. He assessed the accused as being not mentally fit to stand trial.

5 Subsequently, further requests for reports were made by the SGMC on 24 May 2016 and 27 July 2016. A report by another forensic psychiatrist, Dr S Patchett, was provided on 28 August 2016. He assessed the accused to be mentally fit to stand trial.

6 Neither of those first two reports was tendered in evidence, although the reports and the assessments made by Associate Professor Bala and Dr Patchett were mentioned by the two psychiatrists who gave evidence in these proceedings.

7 After Dr Patchett's assessment, the accused was committed to this court for trial on 31 August 2016. On 17 October 2016, at a status conference, the matter was listed for a trial to commence on 15 May 2017. The accused was not legally represented that day. He was legally represented at the next status conference on 8 December 2016, at which time his counsel informed the court that the accused's mental fitness to stand trial was a live issue and the defence would be seeking a report from a forensic psychiatrist separately from any report the court may request. The issue of mental fitness having been raised, the presiding judge, Hall J, ordered a psychiatric report to address that issue.

8 Subsequently, the court received two reports from Dr J Claassen, dated 17 March 2017 and 22 May 2017, and the defence obtained a report dated 5 April 2017 from Dr A Brett, who has been retained by the defence. Before 22 May 2017, the trial dates were vacated, as it was apparent there would need to be a hearing under the Act to determine whether the accused was not mentally fit to stand trial.

9 That hearing was conducted before me on 31 May 2017. The reports of Dr Brett and Dr Claassen were tendered on behalf of the accused and both psychiatrists gave oral evidence. At the conclusion of the hearing, I reserved my decision.

10 On 6 June 2017, I gave my decision that the accused is not mentally fit to stand trial at this time, but that I am not satisfied, for the purposes of s 19 of the Act, that he will not become mentally fit to stand trial within 6 months. Therefore, in accordance with s 19(b), I adjourned the proceedings in order to see whether the accused will become mentally fit to stand trial. I gave brief reasons and said I would publish full reasons in due course. These are my reasons.

A preliminary issue - the need for an interpreter

11 I note at the outset that the accused was born in Sudan and came to Australia when he was 19 or 20. He is now 31.[1] His first language is Tigrinya, an Ethiopian language. Although he attended school in Australia and studied English, and is able to understand and speak English, at least at a basic level, the proceedings were conducted with an interpreter qualified to interpret between English and Tigrinya.

12 It is inevitable in proceedings of this kind that some of the evidence will involve concepts that are at times complex and abstract. While efforts are made to deal with such concepts in language that is comprehensible to nonexperts, such evidence may nevertheless be challenging to grasp, even if English is one's first language. There is no doubt, in those circumstances, that an interpreter was necessary for the accused, even though Dr Brett interviewed the accused without an interpreter (the accused having declined the use of an interpreter), as did Dr Claassen on the second occasion he examined the accused. On the first occasion, Dr Claassen examined the accused, an interpreter was present, but was not used. It appears from Dr Claassen's report of 17 March 2017 that it was the accused's choice to forego the use of the interpreter. Although Dr Claassen was able to communicate with the accused in English for most of the interview on that occasion, he was of the view that the accused struggled with that process. Nevertheless, from his report of 22 May 2017, it appears it was Dr Claassen's decision not to use an interpreter at the second interview, based on his own assessment of the first interview and his conversations with accused's treating team at the Frankland Centre.

13 In any event, as I have indicated, it was appropriate that the accused have an interpreter for the purposes of the court proceedings. It must be assumed, in the absence of any indication to the contrary, that the interpreter was able to interpret to the accused all that was said during the proceedings, notwithstanding the complexity of some of the evidence.

14 It is convenient to deal with the legislative provisions that govern these proceedings before considering the evidence, as they provide the framework within which the evidence must be considered.

15 Part 3 of the Act deals with the issue of an accused's mental unfitness to stand trial and the consequences of such a finding.

16 Section 10(1) provides that an accused is presumed to be mentally fit to stand trial until the contrary is found under pt 3. Section 10(2) 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.

17 Section 12(1) provides that the question of whether an accused is not mentally fit to stand trial is to be decided by the presiding judicial officer on the balance of probabilities after inquiring into the question and informing himself or herself in any way the judicial officer thinks fit.

18 Section 9 of the Act defines the circumstances in which an accused is not mentally fit to stand trial for an offence. They are that the accused, because of mental impairment, is:

(a) unable to understand the nature of the charge;

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

(c) unable to understand the purpose of a trial;

(d) unable to understand or exercise the right to challenge jurors;

(e) unable to follow the course of the trial;

(f) unable to understand the substantial effect of evidence presented by the prosecution in the trial; or

(g) unable to properly defend the charge.

19 'Mental impairment' is defined by s 8 to mean 'intellectual disability, mental illness, brain damage or senility'. 'Mental illness' means:

[A]n underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.

20 By s 19(1) of the Act, if I decide that the accused is not mentally fit to stand trial, I must consider whether I am satisfied that the accused will not become mentally fit to stand trial within 6 months after the finding that he is not mentally fit. If I am so satisfied, then I must make an order under s 19(4).[2] If I am not so satisfied, then I must adjourn the proceedings in order to see whether the accused will become mentally fit to stand trial.[3]

21 An order under s 19(4) of the Act is an order quashing the indictment and either releasing the accused or making a custody order, subject to s 19(5). It is not necessary for present purposes to consider the provisions of s 19(5), because, in the circumstances of this case, s 19(4) will not be engaged.

22 If the proceedings are adjourned under s 19(1)(b), they may be adjourned for any period or periods a judge thinks fit, but not for longer than a total period of 6 months after the finding that the accused is not mentally fit to stand trial.[4] If at any time after the proceedings have been adjourned, but before the end of the period of 6 months, the judge is satisfied that the accused will not become mentally fit to stand trial within 6 months after the finding that the accused is not mentally fit, or, if at the end of that period of 6 months, the accused has not become mentally fit, the judge must make an order under s 19(4).

23 A number of the criteria under s 9 require a consideration of the facts alleged against the accused by the State and the evidence that it intends to adduce to prove those facts. Therefore, I will outline the alleged facts before considering the psychiatric evidence.

24 On 20 August 2015, Mr Solomon Haleform Gebreyohanus, the deceased, aged 57, resided at a unit on Brixton Road, Bentley. That day he walked to the Bentley Plaza Shopping Centre, which was adjacent to the block of units on Albany Highway, Bentley. While at the shopping centre, a CCTV camera captured vision of the accused watching and attempting to follow the deceased. After the deceased left the shopping centre, vision was captured by a residential CCTV camera of the accused following him to his home. The accused approached the deceased at the entrance to his home and a verbal exchange took place between them. Either during or immediately after the exchange, the accused attacked the deceased with a knife, inflicting 17 stab wounds to the deceased's neck, trunk and left arm. The wounds included injuries to the deceased's thyroid cartilage, right carotid artery, left subclavian vein and liver.

25 On 24 August 2015, a forensic pathologist concluded that the cause of death was the stab wounds to the neck and trunk of the deceased.

26 The disturbance between the accused and the deceased was heard by a nearby resident who walked out of his home and observed the accused. The accused ran from the scene. Between 4.00 pm and 4.30 pm, an offduty police officer saw him running down Victoria Street and Albany Highway to Chapman Road in Bentley.

27 On 22 August 2015, the accused was observed sitting on a park bench near the intersection of Barrack Street and Riverside Drive in Perth. He was arrested by police around 8:30 am that day, at that place. When the police searched him, they found a brownhandled folding knife in the accused's pocket. They seized the knife. The knife was later swabbed for DNA. The swabs revealed mixed DNA profiles matching the profiles of both the accused and the deceased to a high degree of statistical probability that the profiles were theirs (a likelihood ratio of 100 million to 1). When the deceased was examined, he was found to have a laceration across his right index and middle fingers, which had been treated with three stitches on each finger.

28 The accused participated in two interviews with police. During the interviews, he admitted that:

1. one week prior to the attack, he had purchased the knife from a store in Perth;
2. while at the Bentley Shopping Centre, he saw the deceased, whom he believed he recognised as the person who killed the accused's mother when he was a child living in Sudan;
3. when he confronted the deceased, he was armed with the knife;
4. he deliberately stabbed the deceased many times at the front of the deceased's home;
5. the knife that was seized from him was the knife he used to kill the deceased; and
6. the injuries to his fingers were sustained during the course of his attack upon the deceased.

29 As the accused is presumed to be mentally fit to stand trial, and the issue of mental fitness was raised on behalf of the accused, the defence had carriage of the case to establish he is not mentally fit. As I said earlier, the reports of Dr Brett and Dr Claassen were tendered and both witnesses gave oral evidence and were crossexamined. Both are consultant forensic psychiatrists who are wellqualified to give expert evidence about the issues in these proceedings. Each of them made his assessment on the basis of information provided by the accused in relation to his background, a clinical assessment of the accused's mental state made during the course of the interview and information from the medical professionals who have assessed and treated the accused since he has been in custody. In addition, Dr Brett viewed the electronically recorded interview conducted by the police with the accused and obtained a detailed account from the accused about the circumstances of the alleged offence.

30 The accused's background, as outlined in the reports, relies on information from the accused. It has not been possible for Dr Brett or Dr Claassen, or, for that matter, the psychiatrists who have been treating the accused, to check the accuracy of his account with family or other independent sources because the accused has refused permission for them to discuss the situation with such people.

31 Dr Claassen considered that the information provided by the accused to him differs slightly from information the accused had provided to Dr Patchett. In fact, Dr Claassen was of the view that the accused 'struggled to provide a logical, coherent narrative of his life to date'. Dr Brett said that the 'background history was difficult to clarify'. Part of the difficulty is that, in the opinion of both psychiatrists, significant aspects of the history given by the accused are part of a delusional construct resulting from the accused's mental illness. As Dr Brett put it, 'it was impossible to clarify whether his history was true or delusional'. However, despite some inconsistencies, there are some common themes that emerge.

32 The accused said he was born in Sudan. He said he never knew his father, and was in the care of his mother until she was killed when he was between the ages of 7 and 10 years. He claimed that she was killed by a member of the Tekle family, and that he was then enslaved or 'taken in' by that family. He said that the Tekle family brought him to Australia when he was 19.

33 He said, in effect, that after coming to Australia, he had not been able to sustain stable employment or housing, although he referred to having had a number of jobs until 2012. He was unemployed at the time of the alleged offence. He told Dr Claassen he had never attended school, but told Dr Brett he attended high school for one or two weeks in Australia and had also attended 'English schools', which I take to mean classes to learn English as a second language.

34 The accused said he has three children from two previous relationships. He is not in contact with either of the mothers or any of the children, although one of his delusions is that those who are out to harm him also want to harm one of his children. He claims that the Tekle family destabilised his relationships.

35 The accused has a history of alcohol and marijuana (cannabis) use. He denied using methamphetamine. He also denied that his use of alcohol and cannabis was a problem, although he said that he had been a regular user of both substances since coming to Australia and was using on a weekly basis before he was arrested. Notwithstanding the accused's selfassessment, both Dr Brett and Dr Claassen regarded the accused's use of alcohol and cannabis as problematic and clinically significant. I note also that Dr Patchett referred to the accused's use of the substances as 'misuse'.

36 Both Dr Brett and Dr Claassen have accepted (in the absence of any evidence to the contrary) the accused's assertion that he has not had past contact with mental health services. Dr Claassen reviewed the Psychiatric Services Online Information System database, which 'reflects contact points individuals had with Public Mental Health Services', and that indicated the accused had not been in contact with such services in the past. What appears to be clear is that his psychiatric disorder, which I will come to, has been untreated for a number of years.

37 The accused has a significant history of convictions for criminal offences. It was summarised by Dr Claassen, who noted that there are 26 convictions dating back to 2008, that the accused has been convicted of numerous offences involving violence of some type and a number of offences involving breaches of police orders and bail undertakings. He has been fined mainly, although he was imprisoned on one occasion in 2010 for an aggravated assault occasioning bodily harm.

38 There was no suggestion that the accused lacked understanding of, or the capacity to participate in, the proceedings in each of his previous encounters with the justice system.

The accused's treatment prior to being seen by Dr Claassen and Dr Brett

39 When Dr Claassen first examined the accused, on 4 March 2017, the accused was on remand in Casuarina Prison. He was moved to the Frankland Centre, the secure unit of Graylands Hospital, after a hospital order was made in respect of the accused by Hall J on 23 March 2017 under s 5 of the Act. Such an order allows for treatment to be provided to the accused in circumstances in which the court suspects that he does not have the capacity to consent to treatment. The order is effective for no more than 7 days. Within that period, the accused must be brought back before the court. He was brought back to court on 30 March 2017. Hall J made another hospital order. When he was again brought back to court on 6 April 2017, the accused was remanded in custody. However, it appears he remained at the Frankland Centre at least until after he was seen by Dr Claassen on 10 May 2017, as that interview took place at that facility.

40 Dr Claassen gave evidence that the Frankland Centre records show that the accused was commenced on pharmaceutical treatment on 31 March 2017. Initially, he was given an antipsychotic drug called Olanzapine. That was tried for three weeks. At the end of that period, his treating psychiatrist and the treating team assessed that there had been no specific improvement in terms of the accused's core delusional belief system, so his treatment regime was changed to another antipsychotic drug called Risperidone. Dr Claassen said that he believed the accused was still on that medication at the time of the hearing.

41 So, when Dr Brett examined the accused on 29 March 2017, he was at the Frankland Centre, but had not yet commenced to take antipsychotic medication. When Dr Claassen examined the accused on 10 May 2017, he was still at the Frankland Centre and had been receiving pharmaceutical treatment for nearly six weeks, three of those on Risperidone. The treating psychiatrist, Dr Zakareia, indicated to Dr Claassen that he was of the view there had been little shift in the accused's 'psychotic mental state findings' before Dr Claassen's review.

The accused's presentation when examined by Dr Claassen

42 As I will discuss later, Dr Claassen was of the view that there was improvement in the accused's presentation in terms of his mental state between 4 March 2017 and 10 May 2017. That improvement, insofar as it affects his mental fitness to stand trial, is important when considering whether the accused may become mentally fit to stand trial within the next 6 months. However, what is of relevance in determining the question of whether the accused is not mentally fit to stand trial at this point in time is the most recent assessment. The two examinations by Dr Claassen appear to have been conducted in a like manner.

43 The accused's presentation on 4 March 2017 was essentially the same as it was at the later examination except in one respect. On 4 March 2017, the accused became outwardly frustrated when he struggled to put his thoughts into words, and it was noticeable that when he became frustrated, he also tended to become irritable.

44 When Dr Claassen examined the accused on 10 May 2017, the accused recognised him from the previous examination, which had occurred a little over two months earlier. The accused was pleasant, made uninterrupted eye contact with Dr Claassen and spoke calmly for most of their interaction. Although he tended to become louder and more intense when discussing the alleged offence and the sequence of events related to it, he was not hostile, distressed or agitated. However, his speech became more difficult to follow consistently, which appears to have been a combination of the intensity of his speech and his heavy accent, which was noted by Dr Claassen.

45 The accused's mood was appropriate. In particular, he did not become as visibly frustrated or irritable as he had during Dr Claassen's assessment of him on 4 March 2017.

46 Dr Claassen conducted 'bedside' cognitive testing with the accused on both occasions he examined him. On 4 March 2017, it was 'abbreviated' because of the noncontact nature of the interaction at Casuarina Prison and the language barrier. There was no suggestion in Dr Claassen's evidence that the testing was impeded in any way on 10 May 2017. In any event, on both occasions, Dr Claassen assessed the accused as having performed well, demonstrating 'grossly intact cognitive domains of attention and concentration, registration, immediate recall and orientation'.

47 On both occasions, Dr Claassen noted that the accused's 'form of thought' was ordered and easy to follow except when he spoke about the events leading to his mother's death and the alleged offending. At that point, he 'derailed' extensively and included unnecessary detail, struggling to 'get to the point'.

48 Dr Claassen summarised the basis for his subsequent conclusion that the accused suffers from a psychotic disorder in the following passage:

He communicated a very extensive, entrenched and detailed persecutory delusional belief system pertaining to his mother's alleged murder when he was a boy, and the subsequent unfolding of events which led him to his current charge of 'Murder' [Dr Claassen's italics and quotation marks]. He exhibited referential delusional beliefs in that he described a range of 'signs' confirming his convictions about his persecutory beliefs. I could not challenge these beliefs, or contrast them with reality, thus assessed them to be delusional in nature (in other words, fixed false beliefs out of keeping with reality, even in the face of compelling evidence to the contrary).

49 The accused described to Dr Claassen 'an unwavering belief that he was at risk of harm from various members of the Tekle family', although he denied feeling as though his personal safety was under immediate threat. He also denied any unusual perceptual phenomena such as illusions or hallucinations, and he did not display any outward signs of hallucination during the assessment.

50 In both examinations, Dr Claassen was of the view that the accused demonstrated no insight into the seriousness of his legal situation or his mental health issues.

The accused's presentation when examined by Dr Brett

51 Dr Brett noted that the accused had a heavy accent and was difficult to understand at times, but he declined the use of an interpreter. In the event, Dr Brett was able to understand the accused adequately.

52 Dr Brett described the accused's affect as reactive and normal. He said the accused was quite intense and focused on the death of his mother and the Tekle family. As noted earlier, he claimed that the family had enslaved him and had been involved in most of the bad things that had happened to him. Dr Brett was of the opinion that, clinically, without collateral information to the contrary, the beliefs were consistent with delusional beliefs. He said that the accused also described delusions of reference. That is, he believed that events that were objectively neutral or coincidental had a special significance or personal meaning for him, and, in a context, it would appear, that was related to his delusions about the Tekle family. A significant example was that when the victim nodded at the accused, he knew at that instant that the victim had killed his (the accused's) mother.

53 As with Dr Claassen, Dr Brett reported that the accused denied experiencing hallucinations, and there was no evidence that he experienced such phenomena.

54 Dr Brett described the accused's cognition as being grossly intact. However, consistently with what was observed by Dr Claassen, the accused had no insight into his mental health issues and did not understand why he was in hospital. This, of course, was at the end of the accused's first week at the Frankland Centre, and before he commenced treatment on antipsychotic medication.

55 Dr Brett said in evidence that when he discussed with the accused things that were close to the core of his belief system, he became very agitated and thought-disordered. In other words, his thoughts were not following a normal pattern. He would jump from topic to topic and could not stay on track. He could not concentrate and questions had to be repeated or reframed.

56 Dr Claassen gave evidence that he did not question the accused about the alleged offence. That is because he does not consider it appropriate to obtain information from an accused about such matters in circumstances in which confidentiality cannot be invoked, when the purpose of the examination is to determine the accused person's mental fitness to stand trial, having regard to the criteria in s 9 of the Act. As I said to Dr Claassen during his evidence, it seems to me that the accused's account of the circumstances of the alleged offence may have a bearing on the conclusions to be drawn about the criteria that are concerned with the accused's understanding of the charge and the evidence to be adduced at trial and his ability to defend the charge. In any case, Dr Claassen understood that the accused's explanation for the events that gave rise to the charge is steeped in his delusional belief system about the death of his mother and the role of the Tekle family.

57 Dr Brett obtained an account from the accused which he summarised in his report as follows:

He believed that the victim had killed his mother when he was aged 7-10. He believed that he was then enslaved by the Tekle family. He described a long term delusional system surrounding the Tekle family, which appeared to impact on all aspects of his life.

He described chronic paranoid delusions, 'how they play me, how they fuck me, how they follow me'. Before the index offence he believed that his life was at risk. He stated that he had a knife to protect himself. He believed that the Tekles interfered in his previous relationships.

He described delusions of reference and experienced coincidences. He believed that he saw messages about him and signs that 'your mum passed away'. He believed that the Tekle family were trying to kill him and his child.

It seems that he heard the victim sigh and this had specific significance for him. It seems that at this point he knew that the victim had killed his mother.

58 Dr Brett noted that the account given by the accused to the police was similar. He referred, in particular, to the accused's pervasive paranoia that he and his child were being followed and that their lives were at risk.

59 On both occasions that Dr Claassen examined the accused, he used the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders fifth edition (DSM-5) for the purpose of diagnosing whether the accused suffered from a psychiatric disorder. As Dr Claassen put it, the DSM5 'offers a common language and standard criteria for classification of mental disorders'. On the basis of his assessment of the accused and the other information he had received, Dr Claassen concluded that the accused suffered from a 'psychotic spectrum disorder'.

60 In his report of 17 March 2017, he considered it was either a form of schizophrenia or a delusional disorder of a continuous persecutory type. He also concluded that the accused met the DSM5 diagnostic criteria for 'Substance Use Disorder (alcohol, cannabis) in early remission in a controlled environment'. In his report of 22 May 2017, based on his assessment of the accused on 10 May 2017, his conversation with the accused's treating psychiatrist and a review of the accused's clinical progress since being admitted to the Frankland Centre, Dr Claassen concluded that the accused suffers from a major psychotic spectrum disorder, namely 'Delusional Disorder, persecutory type, continuous'. He also maintained the diagnosis of substance use disorder, which is in early remission. The diagnostic criteria for Schizophrenia are not met.

61 Dr Brett, in his report, made the psychiatric diagnosis, based on the accused's presentation and history, of 'Psychotic disorder (not otherwise specified)' and 'Alcohol and marijuana use'. The report went on to say that there was no doubt the accused was psychotic and that he had a 'prominent fixed delusional system', but the diagnosis was not yet clear.

62 In evidence, Dr Brett said that psychosis is diagnosed on a clinical basis, that is, on the basis of the clinical interview, which involves questioning and challenging of beliefs to see if they are firmly held, as well as observation. Dr Brett said it was fairly clear when examining the accused that he had delusional beliefs and, although Dr Brett was not definitive in his diagnosis when he assessed the accused, he was confident he had a psychotic disorder and that it was 'most probably a delusional disorder'. He said that he described it as 'not otherwise specified' because it was quite early on in the accused's treatment.

63 Consideration was given to the potential impact of the accused's use of alcohol and cannabis on his mental state, but the fact that he continued to be psychotic for a long period since being in custody and not using those substances supported the conclusion that there is an underlying psychotic disorder.

64 Both psychiatrists were of the opinion that the accused has suffered from the psychotic disorder for a number of years, but it had not been diagnosed or treated before his admission to the Frankland Centre. Both said that Delusional Disorder is a type of psychotic disorder that is notoriously difficult to treat and often unresponsive to treatment altogether. Given that the period during which the accused has suffered the psychosis without treatment is likely to have been a number of years, Dr Claassen considered it to be reasonable to assume there would be a delay in the commencement of any response to treatment and such response would be slow. Both psychiatrists said that if the accused's symptoms did not improve on his current medication, he could be trialled on a drug called Clozapine, which is reserved for cases that are resistant to other forms of treatment. Dr Brett said that drug would probably take 6 months to take effect.

65 Both psychiatrists questioned the accused about the matters the subject of the criteria in s 9 of the Act. However, their opinion in respect of some of the criteria (for instance, whether he would be able to follow the course of a trial or properly defend the charge) is based on the accused's overall presentation and their assessment of his psychotic disorder and its impact on his ability to think in an orderly way, rather than on specific answers from the accused in respect of the criteria. Some of the criteria are concerned more with cognitive functioning that is not necessarily affected by the psychotic disorder. It is also necessary to consider whether deficiencies in some areas of understanding may be the result of linguistic or cultural factors, or simply a lack of knowledge which might be remedied with education.

66 In outlining the opinions of Dr Brett and Dr Claassen in respect of the criteria under s 9, it will not be necessary to dwell on those areas where they considered the accused has the relevant capacity, unless that capacity has a bearing on other areas where they considered he does not have the relevant capacity.

(a) Whether unable to understand the nature of the charge

67 Dr Brett was of the opinion that the accused understands the nature of the charge. He understands it is an allegation of an unlawful killing with a particular intention.

68 Dr Claassen also was of the opinion that the accused understands the nature of the charge. The accused appeared to have that understanding on both occasions Dr Claassen examined him.

(b) Whether unable to understand the requirement to plead to a charge or the effect of a plea

69 Dr Brett was of the opinion that the accused understands the requirement to plead to the charge, in terms of pleading guilty or not guilty. He considered that the accused had less of an understanding of the implications of a plea. However, as I understood Dr Brett's opinion, ultimately, it is not that the accused is unable to understand the effect of a plea of guilty or not guilty, but that his mental impairment prevents him from even contemplating, and therefore understanding in the context of his case, the prospect of a plea of not guilty on account of unsoundness of mind, which is a plea available under s 126(1)(d) of the Criminal Procedure Act 2004 (WA). Again, although Dr Brett considered that the accused would have greater difficulty than the general public understanding what is entailed in an insanity defence, it is not clear to me, on Dr Brett's evidence, that the accused would not be able to understand such a plea, or its effect, if it were explained to him. Rather, it seems to me that the issue that has been identified goes to his ability to properly defend the charge.

70 When Dr Claassen first examined the accused, he 'struggled to articulate the different plea options' and refused to acknowledge any possibility other than a 'not guilty' plea. When Dr Claassen saw the accused on 10 May 2017, he was able to articulate the plea options. Dr Claassen was of the opinion that the accused understood the requirement to plead to the charge, but, like Dr Brett, was not as clear on whether the accused was able to understand the effect of the plea. However, when this was explored in cross-examination, Dr Claassen did not suggest that the accused is deprived of the capacity to understand the effect of a plea of guilty or not guilty, but that he is compromised by his mental impairment in his ability properly to decide upon the plea he should enter and instruct counsel in respect of a defence strategy. In my opinion, these are matters that go to the criterion in s 9(g), rather than to the ability the subject of s 9(b).

71 Dr Claassen said that, when he questioned the accused about it, he had no knowledge of the option of pleading not guilty on the ground of insanity. However, he did not explore it with the accused. It is difficult to know what to make of the indicated lack of knowledge, given that Dr Brett had raised the matter when he saw the accused in between Dr Claassen's visits. In any event, it is not obvious to me that the accused lacks the capacity to understand, rather than simply has a lack of knowledge, which might be remedied by education.

72 Putting aside the option of a plea of not guilty on account of unsoundness of mind, it is difficult to accept that the accused would lack the ability to understand the requirement to plead and the effect of a plea, given his lengthy history of criminal convictions.

73 Having regard to the whole of the evidence on this issue, I am not satisfied that the accused meets the criteria in s 9(b).

(c) Whether unable to understand the purpose of a trial

74 Dr Brett was satisfied that the accused's mental illness did not deprive him of the capacity to understand the purpose of a trial.

75 When Dr Claassen first examined the accused, he was not able to explain what the purpose of a trial was or how court proceedings were conducted. When he examined him in May 2017, the situation was somewhat complicated. On the one hand, the accused was able to explain the role of the key participants in the courtroom, such as the judge, the prosecutor and the defence lawyer, and he understood the purpose of the trial was to determine whether he was guilty or not guilty. On the other hand, he described the court to Dr Claassen as the 'Tekle court' and claimed to believe that the Tekle family controlled what went on in court and would influence the outcome, so that it was futile for him to participate meaningfully in the trial. Dr Claassen said he speculated that there would be a high likelihood that, in light of the accused's psychotic disorder, he would not meaningfully engage with his counsel or provide instructions because he does not see a need for it, as the outcome is 'preordained'. Of course, speculation is not something on which the court could place any significant reliance, but I understood Dr Claassen to be suggesting there is a real prospect of the scenario unfolding in light of his assessment of the accused.

76 Dr Claassen also reported that the accused told him he does not recognise the Australian judicial system. Even if that were true, and the result of his psychotic disorder, rather than some cultural, political or ideological reason (as is sometimes the case with individuals who challenge the authority of the court), it would not amount to an inability to understand the purpose of a trial.

77 I am not satisfied that Dr Claassen's evidence supports the conclusion that the accused meets the criteria in s 9(c). Having regard to Dr Brett's opinion, I am of the view that the matters described by Dr Claassen, concerning the accused's perception of the court being controlled by the Tekle family, are relevant to s 9(g).

(d) Whether unable to understand or exercise the right to challenge a juror

78 Dr Brett was satisfied that, with the aid of counsel, the accused would be able to understand and exercise the right to challenge jurors. In crossexamination, Dr Brett said further that the accused understood he could discuss the issue with his lawyer and that his lawyer could exercise the right on his behalf.

79 Dr Claassen was of the opinion, on both occasions that he examined the accused, that the accused was not able to understand the right to challenge a juror and would not be able to exercise that right. That is surprising in light of Dr Brett's assessment, which went into some particularity. It is especially surprising, as Dr Claassen's view overall was that the accused's condition had improved between his first and second examination.

80 Having regard to the whole of the evidence, and with all due respect to Dr Claassen's opinion, I am not satisfied that the accused meets the criteria in s 9(d).

(e) Whether unable to follow the course of a trial

81 Dr Brett was of the opinion that the accused would not be able to follow the course of a trial because of his mental impairment, particularly if it was a lengthy trial. That was because during his clinical interview, the accused became disordered in his thoughts. They were not clear and went from point to point. The accused was not able to focus. This occurred particularly when discussing matters the subject of his delusional belief system. Dr Brett considered that a clinical interview would be less distressing than following proceedings in a trial focussed on the events of his alleged offending, and it would be expected that his psychosis would cause him significant distress during a trial.

82 When Dr Claassen examined the accused on 4 March 2017, he found that the accused had a tendency to get 'derailed' when his alleged offending was raised, and was of the opinion that the tendency would 'inhibit his ability to sustain attention and adequately follow a trial'. At the examination on10 May 2017, Dr Claassen found that the accused's attention was improved, but he was still easily 'derailed'. However, when the accused was given an opportunity to recount events from his perspective, he was easier to refocus. It was Dr Claassen's view, in his report of 22 May 2017, that 'with adequate interpretation and explanation the accused could sustain focus in a trial if he was given time to digest material'.

83 In evidence, Dr Claassen said that, on balance, in his opinion the accused would probably be able to follow court proceedings, but he would likely interpret most, if not all of them, according to his delusional system, 'especially when it is linked with ... the Tekle family'.

84 Of course, in a trial, for the most part, the accused would be listening to the evidence, not giving evidence (if he gives evidence at all). While the observations of both Dr Brett and Dr Claassen would suggest there is a risk the accused would lose focus if matters are discussed that trigger his delusional thought processes, the concern that he may become 'derailed' would seem to apply more specifically if he were to give evidence, in which case the questioner would have the responsibility to keep the accused focussed on the question.

85 Of course, the accused's ability to follow the course of a trial may be informed, to some extent, by his ability to follow the proceedings on 31 May 2017. The latter can be explored by his treating psychiatrist and his legal advisers, and that should occur as soon as possible. Obviously, in assessing his ability for the purpose of s 9(e), it will be necessary to take into account that the trial will be considerably longer than the proceedings on 31 May 2017. On the other hand, allowance would need to be made for the fact that persons who do not have a mental impairment and do not have experience in the courts may not always be able to follow all that occurs during the course of a trial, or indeed during a proceeding under the Act.

86 On balance, having regard in particular to the improvement noted by Dr Claassen on 10 May 2017, I am not satisfied the accused would be unable to follow the course of a trial because of his mental impairment. However, the matters of concern raised in respect of this criterion are relevant to the accused's ability to properly defend the charge.

(f) Whether unable to understand the substantial effect of evidence presented by the prosecution in the trial

87 Dr Brett was of the opinion that, while the accused would be able to understand the effect of evidence that was concerned with physical actions or descriptions of physical things what might be described as circumstantial evidence (although this was not a description used by Dr Brett) his mental disorder would prevent him from being able to understand the significance of that evidence. That is, he would not be able to understand the inferences that might be drawn from the evidence that are inconsistent with his delusional belief system. Another way in which Dr Brett put the proposition was that the accused might misinterpret the evidence in accordance with his ingrained delusional system, for instance, believing that the Tekle family were involved in the evidence being presented.

88 However, under crossexamination, Dr Brett appeared to accept that the accused had the cognitive ability to understand the effect of evidence, but that his mental impairment would prevent him from accepting any effect of the evidence or conclusion to be drawn from it that is inconsistent with his delusional beliefs. I am inclined to agree with the proposition put by counsel for the State that this is not what s 9(f) is concerned with. I will discuss below certain legal propositions adopted by Gleeson CJ in Eastman v The Queen[5] concerning the impact of delusional beliefs on an accused's mental fitness to stand trial. In light of those propositions, the fact that the accused suffers an entrenched delusional belief that will affect his ability to accept as true or correct the effect of evidence which he is otherwise able to understand, would not of itself render him mentally unfit to stand trial.

89 On his first examination of the accused, Dr Claassen noted that the accused demonstrated some basic understanding of the 'concepts of witnesses and evidence', but was not able to apply the concepts to his specific situation. He was 'not able to articulate what the potential impact of witness statements or evidence might be'. At the second examination, Dr Claassen found that the accused's understanding of the 'concepts of witnesses and evidence' had improved and he was able to identify how witnesses and evidence could be used in court when he was provided with a hypothetical scenario, and he was able to say what the impact of evidence might be 'in general terms', although when the discussion was related to his specific situation, he 'struggled'.

90 Of course, the criterion in s 9(f) does not require an understanding of concepts. It is concerned with whether the accused will be able to understand the substantial effect of the evidence. In context, this directs attention to the essence or real meaning of the evidence; in other words, the facts that are established by the evidence that are of importance. As I have already said when dealing with Dr Brett's evidence on this issue, I perceive the real difficulty that has been identified in this context to be the potential for the accused to interpret evidence according to his delusional belief system, or to simply not accept as true or correct evidence that he is otherwise able to understand. The first difficulty involves speculation; the second I have dealt with above, having referred to Eastman v The Queen.

91 I am not satisfied that, because of his mental impairment, the accused would be unable to understand the substantial effect of evidence presented by the prosecution in the trial. Again, matters of concern that have been raised in this context are relevant to the next issue.

(g) Whether unable to properly defend the charge

92 Dr Brett was of the opinion that, because of his mental impairment, the accused would be unable to properly defend the charge. He considered that was more directly related to his delusional belief system. In Dr Brett's opinion, the accused would be likely to make decisions about how the trial should proceed from a defence perspective based on his delusional systems, and that would not be the case if he did not have the mental impairment. The most obvious area where a difficulty would arise is that he could not see that an insanity defence may be open to him, when, if he was well, he would. Further, the matters that Dr Brett raised under s 9(f) in relation to understanding the effect of the evidence would be relevant in this context. The accused's mental impairment would deprive him of the ability to properly defend the charge, because it would prevent him from reasoning that there may be a view of the evidence inconsistent with his. In that context, I consider that one must give effect to the qualifier in the phrase 'properly defend'.

93 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. In these respects, Dr Brett was of the opinion that the accused is deprived of the relevant capacity because of his psychotic disorder.

94 While decisions about the conduct of the defence would usually be left by an accused to counsel, Dr Brett was of the opinion that, currently, the accused would not be able 'to completely take legal advice', at least to the extent that it may not accord with his delusional belief system. However, Dr Brett agreed that, just as the accused had gone from a position of not being keen to take medication to a position of accepting the doctor's recommendation that he take the medication, he may yet be able to accept advice from his legal advisers about the conduct of the defence.

95 On both occasions, that Dr Claassen examined the accused, he was of the opinion that the accused would not be able to properly defend the charge. His reasons are similar to those of Dr Brett, although Dr Claassen places greater emphasis on the fact that the accused would pursue a defence strategy that is based on his psychotic beliefs. However, ultimately, it is the potential for this to affect the accused's ability to engage meaningfully in the trial, which would be essential to properly defending the charge, that is of significance. The accused's beliefs described earlier, about the Tekle family controlling the court and the outcome being 'pre-ordained', play a significant role in Dr Claassen's assessment that the accused would not be able to rationally evaluate evidence and give appropriate instructions to his counsel. Similarly, the risk of the accused's thoughts becoming disordered and losing focus compound the concern that he would not be able to properly defend the charge.

96 In short, both Dr Brett and Dr Claassen were of the opinion that the accused would be unable to properly defend the charge because of his mental impairment.

Whether the accused may become mentally fit to stand trial within 6 months

97 Since his admission to the Frankland Centre, the accused has taken the medication prescribed to him by his treating psychiatric team. It seems that he has been prepared to accept the advice and recommendations of his doctors, even though he has lacked insight into his mental illness.

98 The evidence of both Dr Brett and Dr Claassen is that it is standard practice when treating psychotic symptoms to trial various antipsychotic drugs. As I outlined earlier, their evidence is also that persecutory type delusional disorders are notoriously difficult to treat, and can be unresponsive to treatment altogether. In any event, because of the entrenched nature of the delusional system, which was untreated for a number of years, improvement is likely to be slow.

99 Dr Brett's opinion was that the prognosis for the accused is extremely poor, because of his initial response to medication, because of the duration of the untreated psychosis, the entrenched delusional system and the notorious difficulty in treating delusional disorders. However, the effect of the current medication will need to be assessed over a longer period and there is the prospect of a change to Clozapine, if the current medication is not sufficiently effective. Pharmaceutical therapy will need to be augmented with counselling, which the accused is more likely to receive at an adequate level in a hospital setting rather than in prison. He requires an intensive degree of care.

100 Ultimately, Dr Brett did not exclude the possibility that the accused will become mentally fit to stand trial within the next 6 months. Further, Dr Brett expressed the view that, from a clinical perspective, it would make sense to bring the accused back in 3 months' time to review his mental state and assess whether he has become fit or is improving.

101 Dr Claassen was of the opinion that the accused had improved between his first examination and the second examination. There were fewer areas in which he considered the accused met the criteria under s 9 of the Act. I have outlined the areas of improvement above. This suggested to Dr Claassen that the medication was having effect, although some of the improvements may have been due to the accused becoming more knowledgeable about the court process. Assuming the medication was having effect, it was not clear if it was the change in medication that had the effect or if the initial medication had started to have some effect before the change. In any event, the accused remained psychotic and lacking in insight into his mental illness, despite the improvements in his cognitive functioning.

102 Dr Claassen was of the opinion that it could take 6 to 12 months for the accused to become mentally fit to stand trial if the treatment was effective.

103 Both experts were of the opinion that further education in relation to the court process and the legal issues relevant to the charge and any possible defence would be an important adjunct to the medical treatment. That would help reveal in due course whether some of the deficiencies that have been identified so far stem from a lack of knowledge, rather than from the accused's mental illness.

104 Having regard to the whole of the evidence, it does not support the conclusion that the accused would not become mentally fit within 6 months from this decision.

Further legal principles relevant to the issues in this case

105 As McKechnie J pointed out in The State of Western Australia v Mack,[6] difficult issues may arise when considering whether an accused's mental impairment results in mental unfitness to stand trial, and some were outlined by Gleeson CJ in Eastman v The Queen.[7] Of particular relevance to the issues in this case, Gleeson CJ referred to a number of propositions that were recorded by the Ontario Court of Appeal in R v Taylor[8] as representing the state of authority in that province and noted that, while the ultimate test to be applied in the case before the High Court was the statutory test applicable in the relevant jurisdiction, the propositions recorded in R v Taylor were sound and consistent with the statutory test. In my opinion, they are also consistent with the statutory test in the present case. The propositions are:[9]

(a) The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject-matter of the trial.

(b) The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.

(c) The fact that an accused person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.

(d) 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.

106 The propositions in paragraphs (a), (b) and (d) are relevant in this case, in light of issues that were raised by Dr Brett and Dr Claassen, outlined above. As for paragraph (c), while both Dr Brett and Dr Claassen were of the opinion that the accused's thoughts may become disordered during the course of the trial when the evidence is directly concerned with the alleged offence, there is no suggestion in their evidence that the accused's mental disorder may produce behaviour that will disrupt the orderly flow of the trial, even though that would not necessarily result in a finding of unfitness to stand trial. I note that, during the proceedings before me, the accused remained quiet and respectful, despite references to the circumstances of the alleged offence.

107 In relation to the first and second propositions from R v Taylor, the formulation of each makes it clear that the circumstance identified would not in isolation render the person unfit to stand trial. It might be thought to be a corollary of that formulation that a combination of such circumstances may be sufficient to lead to the conclusion that the person is mentally unfit to stand trial. However, in respect of the first proposition, the expert opinion is not simply that the accused's delusional disorder relates to the subject matter of the trial, but that there is a real possibility it will cause him to perceive the trial as a process that is controlled by those who he believes wish to harm him, that the outcome is 'preordained' and that it would be futile for him to participate meaningfully. Similarly, it is not simply that his mental impairment may cause him to conduct his defence in a manner that the court may consider to be contrary to his best interests (a matter about which the court is not in a position to express a view at this stage, in any event), but that he lacks the capacity to give informed and meaningful instructions about an insanity defence because of his lack of insight into his mental disorder.

108 Dr Claassen acknowledged in evidence that 'the matter of procedural and decisional competence', that is, whether a decision or defence strategy is wise or not, is a separate matter to whether the person's mental impairment deprives him of the capacity to critically evaluate all relevant material that informs the making of a decision or adoption of a strategy. He was of the opinion that the latter circumstance applies to the accused.

109 In my opinion, the first and second propositions from R v Taylor are relevant in this case when considering the expert evidence concerning the accused's incapacity to see inferences from the evidence that may be inconsistent with his delusional belief system. Ultimately, as counsel for the State submitted, one needs to distinguish between a cognitive inability to understand the effect of evidence and an inability to accept the inferences others might draw from the evidence, because of one's beliefs. So, for instance, the accused may understand that the effect of the evidence is that the deceased was a stranger to him, but may refuse to believe the evidence because of his delusional beliefs. Having regard to the first proposition from R v Taylor, that would not render him mentally unfit to stand trial by virtue of s 9(f). In my opinion, that is so even if the evidence that the victim was a stranger is objectively incontrovertible. However, the refusal to accept (rather than understand) the effect of the evidence may affect another capacity, such as the accused's ability to defend the charge.

Conclusions The accused is not mentally fit to stand trial

110 I am satisfied on the balance of probabilities that the accused suffers from a mental impairment, namely a major psychotic disorder, which is likely a Delusional Disorder, persecutory type, continuous. However it is categorised, the psychotic symptoms are of a delusional type.

111 I am further satisfied that, because of the mental impairment, at this time the accused would not be able to properly defend the charge. That is because his mental impairment impedes his ability to understand that he is suffering from a mental illness and, therefore, his ability to properly instruct his legal advisers on the manner in which his defence should be conducted, in circumstances where the possibility of a defence of unsoundness of mind under s 27 of the Criminal Code is a live issue.

112 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. 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. At this stage, I will proceed 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, is a factor that tends to reinforce the conclusion that he would not be able to properly defend the charge because of mental impairment.

113 I am satisfied, therefore, that the accused is currently not mentally fit to stand trial.

114 Questions were also raised about the accused's ability to follow the course of the trial or to understand the substantial effect of the evidence. While I acknowledge that those abilities may be affected by the accused's delusions and by his thoughts becoming disordered, which is a potential manifestation of his mental impairment, I would not find at this stage that he would lack those abilities. However, they are matters that will need to be explored further by those who will be treating the accused.

Whether the accused will not become mentally fit within 6 months

115 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.

116 Therefore, for the purposes of s 19(1) of the Act, I am not satisfied that the accused will not become mentally fit to stand trial within 6 months, and I am required to adjourn the proceedings in order to see whether he will become mentally fit to stand trial. I have decided that, at this stage, the appropriate period of adjournment is 3 months.

117 It is the court's expectation that, during the next 3 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.

118 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.

119 The proceedings are adjourned until Tuesday, 29 August 2017, for a hearing to consider whether the accused has become mentally fit to stand trial and, if not, whether he may become fit before the expiration of 6 months from today.

120 I order that the accused be examined by a psychiatrist prior to that hearing in sufficient time for a report be provided to the court by 15 August 2017.

[1] His date of birth has been given as 1 January 1986, but it appears that date was assigned when he came to Australia, and his actual date of birth is not certain.

[2] Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 19(1)(a).

[3] Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 19(1)(b).

[4] Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 19(2).

[5] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1.

[6] The State of Western Australia v Mack [2012] WASC 127.

[7] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [24] - [27].

[8] R v Taylor (1992) 77 CCC (3d) 551, 564 - 565.

[9] R v Taylor (1992) 77 CCC (3d) 551, 564 - 565.