THE STATE OF WESTERN AUSTRALIA -v- MILLER [2026] WASC 234

[2026] WASC 234 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : THE STATE OF WESTERN AUSTRALIA -v- MILLER [2026] WASC 234 CORAM : WHITBY J HEARD : ON THE PAPERS DELIVERED : 10 JUNE 2026 FILE NO/S : INS 1 of 2026 BETWEEN : THE STATE OF WESTERN AUSTRALIA Applicant AND ASHLEY KIRK MILLER Accused Catchwords: Criminal law - Fitness to stand trial - Murder - Turns on its facts Legislation: Criminal Law (Mental Impairment) Act 2023 (WA) Criminal Code (WA) Result: Accused is not fit to stand trial Matter adjourned to special proceeding, pursuant to s 37 of the CLMI Act -- 1 of 9 -- [2026] WASC 234 Page 2 Category: B Representation: Counsel: Applicant : No appearance Accused : No appearance Solicitors: Applicant : Director of Public Prosecutions (WA) Accused : Fisher Legal Case(s) referred to in decision(s): Nil -- 2 of 9 -- [2026] WASC 234 WHITBY J Page 3 WHITBY J: Introduction 1 On 17 February 2026, the accused was indicted on a charge that on 17 August 2024, he murdered John Eugen Fluck. 2 On 22 March 2025, while in custody on remand for the above offence, the accused suffered a middle cerebral artery stroke which left him with an acquired brain injury.1 3 On 18 February 2026, the State made an application pursuant to s 31 of the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act) for the court to determine whether the accused is fit to stand trial. 4 On 31 March 2026, I ordered that the application be determined on the papers and programmed the filing of written submissions by the prosecution and the accused. 5 I find that the accused is not fit to stand trial within the meaning of the CLMI Act and adjourn the matter, as required by s 37 of the CLMI Act, to a special proceeding. Relevant statutory framework 6 The accused is charged with the offence of murder, contrary to s 279 of the Criminal Code (WA). 7 The issue of whether an accused is fit to stand trial is dealt with in pt 3 of the CLMI Act. An accused is presumed to be fit to stand trial unless the contrary is found.2 The question of whether an accused is fit to stand trial may be raised at any time before or during a trial and may be raised by the prosecutor, the defence or the court.3 8 Pursuant to s 29 of the CLMI Act, the question of fitness is to be decided on the balance of probabilities by a judge sitting alone. The court may inquire into the question and inform itself in any way that it considers appropriate. The court which is to deal with the charge is the court which is required to determine the question of fitness.4 9 Section 26 of the CLMI Act provides as follows: 1 Joint Neuropsychology and Speech Pathology Report - Fitness to Stand Trial of Dr Amanda Ng and Tanya Cavlovic dated 12 December 2025 (Joint Report), page 1. 2 CLMI Act s 27. 3 CLMI Act s 28. 4 CLMI Act s 31(2). -- 3 of 9 -- [2026] WASC 234 WHITBY J Page 4 26. Accused who is unfit to stand trial 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. 10 A mental impairment is any one or combination of an intellectual disability, mental illness (as defined by the Criminal Code), an acquired brain injury and/or dementia.5 11 In the present case, the State submits that the accused's mental impairment is as a result of an acquired brain injury. 12 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 that a special proceeding take place under subdiv 3 of the CLMI Act.6 13 In deciding the question of whether an accused may be or become fit to stand trial, the court may have regard to the extent to which reasonably available 'support measures' would enable an accused to be fit to stand trial.7 5 CLMI Act s 9. 6 CLMI Act s 37(3). 7 CLMI Act s 29(5). -- 4 of 9 -- [2026] WASC 234 WHITBY J Page 5 Alleged offence 14 It is alleged that on the afternoon of 16 August 2024, the accused, who had been drinking, went to the victim's home in Two Rocks. The accused and the victim were friends. At around 5.00 pm, the accused and the victim got into an altercation in the driveway of the home. It is alleged that the accused deliberately and repeatedly struck the victim to the back of the head using a spray paint can and that, while the victim was lying on the concrete driveway, the accused delivered multiple, forceful blows to his head. The State alleges that those blows may have been delivered with the spray paint can, by punches or kicks, or a combination of those. 15 The accused was arrested on the night of the incident and initially charged with grievous bodily harm. He was charged with murder following the death of the victim. He has remained in custody since 16 August 2024. 16 The State's case is that the blows were inflicted with the intention to inflict a serious blunt force head injury, which was an injury of such a nature as to endanger or be likely to endanger life. The facts in this case 17 On 22 March 2025, while on remand in custody at Casuarina Prison, the accused suffered a middle cerebral artery stroke. He underwent a mechanical thrombectomy at Sir Charles Gairdner Hospital and was transferred afterwards to the State Rehabilitation Service at Fiona Stanley Hospital. He remained there for approximately eight weeks, until 6 June 2025, when he was returned to custody at Casuarina Prison. As a result of the stroke, the accused sustained an acquired brain injury.8 18 At an appearance in the Stirling Gardens Magistrate Court on 23 July 2025, defence counsel for the accused raised concerns about the accused's fitness to stand trial and advised the court she had been experiencing difficulties in obtaining instructions from the accused. A report addressing the accused's fitness to stand trial was ordered by the court. At a further mention on 13 August 2025, the court ordered the preparation of a neuropsychological fitness report and a speech pathology report. 8 Joint Report, page 1. -- 5 of 9 -- [2026] WASC 234 WHITBY J Page 6 Evidence replied upon Joint Report dated 12 December 2025 19 The Joint Report was prepared by Dr Amanda Ng, clinical neuropsychologist, and Tanya Cavlovic, speech pathologist. Dr Ng provided an opinion as to the accused's fitness to stand trial or plead to the charge of murder. Ms Cavlovic focussed on details in relation to the accused's presentation, and speech and language test outcomes. 20 The report was tendered by consent and neither the State nor the accused sought to examine or cross-examine the authors of the Joint Report. 21 The accused was interviewed on two occasions - 25 October 2025 and 10 November 2025 for a total of 6 hours. Dr Ng and Ms Cavlovic were provided with the statement of material facts for this offending, several historic court reports, the accused's Fional Stanley Hospital medical records and his prison medical records. 22 Dr Ng and Ms Cavlovic noted that there was a limitation to the testing of the accused because he presents with a severe communication disorder, with marked verbal apraxia, and impairments in his receptive and expressive language. 23 In summary, the findings of the Joint Report are: (1) the accused meets the DSM-V-TR diagnostic criteria for a Major Neurocognitive Disorder due to brain injury (stroke); (2) the accused is able to understand the nature of the charge - the accused understood he had been charged with murder; (3) the accused was unable to give instructions to a legal practitioner - the accused has marked speech deficits that makes it challenging for others to understand him, his wider language and cognitive deficiencies limit his thought processes, generation of language and understanding of written and verbal information. These factors combine to prohibit his capacity to give instructions to a legal practitioner; (4) the accused is unable to understand the requirement to plead to a charge or the effect of a plea - despite being provided with verbal, written and visual assistance, the accused's comprehension of the process did not significantly improve; -- 6 of 9 -- [2026] WASC 234 WHITBY J Page 7 (5) the accused is able to understand the purpose of a trial - with substantial education and accommodation, the accused appeared to have a basic understanding of the purpose of a trial; (6) the accused is unable to understand or exercise the right to challenge jurors - the accused is highly unlikely to comprehend the potential effects of bias and when or how to initiate a challenge; (7) the accused is unable to follow the course of a trial - the accused would have significant difficulty following the course of a trial given the nature and severity of his cognitive, speech and language impairments. The accused's ability to understand what is happening during the trial is further compromised by his slow processing speed and attentional deficiencies. Even with skilled communication partners employing a number of strategies to assist him, the accused would still be at an extremely high risk of miscommunications; (8) the accused is able to understand the substantial effect of evidence presented by the prosecution in the trial - the accused appeared to have at least a basic understanding that evidence about the alleged offence could be presented by the prosecution in a trial; (9) the accused is unable to decide whether to give evidence, or to give evidence if he wished to do so given his significant cognitive, speech and language deficits; (10) the accused is unable to properly defend the charge given the severity of his cognitive, speech and language impairments, and his inability to understand and/or participate appropriately in certain aspects of his legal matters; (11) the accused is not considered fit to stand trial as a result of his significant cognitive, speech and language impairments due to his acquired brain injury as a result of his stroke; and (12) in the context of the current severity of the accused's impairments, his prognosis for further meaningful recovery is guarded and it is very unlikely that his cognitive and communication skills would sufficiently improve such that he would become fit to stand trial. -- 7 of 9 -- [2026] WASC 234 WHITBY J Page 8 Finding on fitness to stand trial 24 Dr Ng is well qualified to give evidence in relation to the accused's fitness to stand trial. The foundations for his opinion are clearly explained and justified. There is nothing before me to cast doubt on his evidence. I accept his evidence. 25 I am satisfied that the accused has a mental impairment, as defined by s 9 CLMI Act, being an acquired brain injury, which is a consequence of him suffering a middle cerebral artery stroke on 22 March 2025. 26 Based on the expert evidence, I am satisfied that, because of his mental impairment, the accused is unable to: (1) give instructions to a legal practitioner (s26(b)); (2) understand the requirement to plead to the charge or the effect of a plea (s26(c)); (3) understand or exercise the right to challenge jurors (s26(e)); (4) follow the course of the trial (s26(f)); (5) decide whether to give evidence, or to give evidence if he wishes to do so (s26(h)); and (6) properly defend the charge (s26(i)). 27 I am also satisfied, based on the expert evidence, that the severity of the accused's cognitive, speech and language deficits cannot be sufficiently addressed by the provision of support measures. 28 It follows that the accused is unfit to stand trial on the charge of murder. 29 I am also satisfied on the balance of probabilities that the accused will not become fit to stand trial within six months. 30 In those circumstances, I am required to make an order pursuant to s 37 of the CLMI Act that a special proceeding take place under subdiv 3 of the CLMI Act, and I make that order now. 31 The accused is remanded in custody until the special proceeding takes place. -- 8 of 9 -- [2026] WASC 234 WHITBY J Page 9 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CS Associate to the Hon Justice Whitby 10 JUNE 2026 -- 9 of 9 --