Deanne Jewel Best and Graeme Robert Cooper v Jermaine Goolagong

[2013] ACTMC 2

DEANNE JEWEL BEST and GRAEME ROBERT COOPER
v
JERMAINE GOOLAGONG
[2013] ACTMC 2 (28 February 2013)

CRIMINAL LAW – criminal liability and capacity – fitness to plead – capacity to enter a plea

Crimes Act 1900 (ACT) ss 311, 314, 315A

Kesavarajah v The Queen (1994) 181 CLR 230
Ngatayi v R (1980) 147 CLR 1
Bailiff v R [2011] ACTCA 7 (25 February 2011)
Egan, Hawkins and Burr v JG [2010] ACTSC 53 (18 June 2010)
Greig v Dziubinski [2013] ACTSC 8 (18 January 2013)
R v Fisher [2011] ACTSC 56 (1 April 2011)
R v Griffith [2008] ACTSC 77
R v Monaghan [2009] ACTSC 61 (27 May 2009)
R v Monaghan (No 2) [2011] ACTSC 62 (14 Aril 2011)
R v Monfries (No 2) [2011] ACTSC 205 (21 December 2011)
R v Sutherland [2012] ACTSC 62
R v Dunne [2001] WASC 263
R v Polanski [1999] NSWSC 433
R v Presser [1958] VR 45

No. CC 6262 of 2012  
No. CC 6263 of 2012 
No. CC 6264 of 2012 
No. CC 6265 of 2012 
No. CC 6266 of 2012 
No. CC 6569 of 2012 
No. CC 7787 of 2012 
No. CC 7788 of 2012 
No. CC 7789 of 2012 
No. CC 7790 of 2012 
No. CC 7791 of 2012 
No. CC 7792 of 2012 
No. CC 7793 of 2012  

Magistrate:      Boss
Magistrates Court of the ACT

Date:               28 February 2013

IN THE MAGISTRATES COURT OF THE         )
  )          No. CC 6262-6266 of 2012 

)          No. CC 6569 of 2012

)          No. CC 7787-7793 of 2012 

AUSTRALIAN CAPITAL TERRITORY               )

BETWEEN:DEANNE JEWEL BEST

GRAEME ROBERT COOPER 

Informant

AND:JERMAINE GOOLAGONG

Defendant

ORDER

Magistrate:  Magistrate Boss
Date:  28 February 2013
Place:  Canberra

THE COURT DECLARES THAT:

1. Jermaine Goolagong is unfit to plead and is unlikely to become fit in the next twelve months.

1. The accused Jermaine Goolagong is charged with 13 offences.

   No. CC 6262 of 2012  Aggravated burglary
   No. CC 6263 of 2012  Theft
   No. CC 6264 of 2012  Take motor vehicle belonging to someone else
   No. CC 6265 of 2012  Ride in motor vehicle belonging to someone else
   No. CC 6266 of 2012  Possess cannabis
   No. CC 6569 of 2012  Possess property reasonably suspected stolen
   No. CC 7787 of 2012  Not give assistance after accident
   No. CC 7788 of 2012  Drive recklessly
   No. CC 7789 of 2012  In crash, not give particulars
   No. CC 7790 of 2012  Drive unsafe vehicle
   No. CC 7791 of 2012  Unregistered car
   No. CC 7792 of 2012  Drive uninsured car
   No. CC 7793 of 2012  Unaccompanied learner driver

   He was granted bail on 10 June 2012 but returned to this Court on 12 September 2012 charged with further offences. Bail was revoked.  Mr Goolagong was ultimately granted bail by the Supreme Court of the ACT on 27 November 2012.

2. The question arises in relation to his fitness to plead and has been reserved for investigation as required pursuant to s 314 Crimes Act 1900 (ACT).

3. S 315A Crimes Act 1900 (ACT) sets out the requirements for an investigation, namely:

   (1)     On an investigation into a defendant’s fitness to plead—

   (a)     the Court must hear any relevant evidence and submissions put to the Court by the prosecution or the defence; and
   (b)     if the Court considers that it is in the interests of justice to do so, the Court may—

   (i)     call evidence on its own initiative; or

   (ii)     require the defendant to be examined by a psychiatrist or other health practitioner; or

   (iii)     require the results of the examination to be put before the Court.

   (2)     Before hearing any evidence or submissions, the Court must consider whether, for the protection of the defendant’s privacy, the Court should be closed to the public while all or part of the evidence or submissions are heard.

   (3)     The Court must decide whether the defendant is unfit to plead.

   (4)     If the Court finds that the defendant is unfit to plead, the Court must also decide whether the defendant is likely to become fit to plead within the next 12 months.

4. An inquiry into Mr Goolagong’s fitness to plead was commenced 25/9/12 and has continued over 23/10/12, 9/11/12, 20/12/12 and 17/01/13.  Reports were received from three expert witnesses and evidence was led by the prosecution in relation to Mr Goolagong’s employment history and apparent successful application for a learner driving permit.  An outline of the evidence is set out below.

   Existing community care order

5. Ms Caldwell gave evidence to the effect that Mr Goolagong is currently subject to a community care order.

   Learner driving permit

6. Evidence was given by Neil Arnold Martin, a policy officer for the Road Ready Program with the office of Regulatory Services and Alisha Verity Maine, a teacher at Bimberi, in relation to Mr Goolagong’s apparent successful application for a learner driving permit. Mr Martin’s evidence was that Mr Goolagong passed the Road Rules Knowledge Test on his first attempt on 23 June 2011, answering 34 questions correctly out of 35.  Evidence was given in relation to the random selection of questions from a pool of some 230 potential questions. 

7. Ms Maine gave evidence as to the nature and circumstances of the testing process.  I am satisfied from that evidence that Mr Goolagong was able to successfully complete the learners permit test with assistance in the form of explanation of certain words and concepts.  Ms Maine denied any suggestion that she or any other Bimberi resident had indicated answers to Mr Goolagong.

8. Paul Poulos gave evidence of Mr Goolagong’s ability to work in the recycling industry.  He gave evidence that Mr Goolagong was able to perform the manual tasks set for him to a good standard and that he may be considered for a supervisory role.  Mr Poulos also noted that Mr Goolagong appeared to understand the ethos behind recycling.  From the evidence before me it seems that Mr Goolagong, consistent with other reports, is able to perform concrete, repetitive tasks.     It seems he may also be able to supervise others in performing these tasks.

   Dr Kasinathan’s opinion on the statutory criteria

9. A report dated 16 March 2011 was prepared by Dr Kasinathan. A copy of the report was tendered in these proceedings.    The report indicated that Mr Goolagong was consuming large amounts of alcohol regularly and using large amounts of cannabis daily.  Dr Kasination indicated that in preparing the report he had relied on a report that he had prepared in relation to the same issue in 2008, and a formal cognitive examination of 18 February 2009 that he felt confirmed that Mr Goolagong had a moderate intellectual disability. Dr Kasinathan found that Mr Goolagong had difficulties with memory, executive function and academic function and that the results were consistent throughout all tests.   Dr Kasinathan diagnosed mild to moderate intellectual disability and cannabis disorder. 

10.Dr Kasinathan set out the statutory criteria and assessed Mr Goolagong as essentially being unfit or only partially fit in relation to each of the criteria.   Dr Kasinathan did not address the issue of whether Mr Goolagong would become fit to plead in the next 12 months.  

Dr George’s opinion on the statutory criteria

11.In relation to the proceeding now before the Court an opinion was obtained from Dr George dated 31 August 2012. Dr George relied on the same material as Dr Kasinathan, as well as Dr Kasinathan’s report and a fitness to plead assessment prepared by Ms Jacinta Marsh dated 24 February 2010. Dr George set out the statutory criteria and assessed Mr Goolagong as having capacity in relation to understanding the nature of the charges but lacking capacity in relation to the other criteria. He was of the opinion that Mr Goolagong would not become fit to plead in the next 12 months. 

12.Dr George gave evidence in these proceedings.  The evidence adduced that Mr Goolagong had been able to achieve a score of 34 out of 35 in his driving test to obtain a learners driving permit was provided to Dr George, and it was put to him that this was inconsistent with his findings.  Dr George maintained his opinion in relation to the criteria despite this information. 

13.As a result of the apparent anomaly between Mr Goolagong’s learner driver test and the forensic medical evidence a further forensic psychiatric report and a neuropsychological report were ordered by the Court.

Dr Barker’s opinion on the statutory criteria

14.Dr Barker prepared a report dated 17 December 2012 that was tendered in the proceedings. In preparing the report Dr Barker had access to the materials available to Dr George as well as a neuropsychological report dated December 2012 by Dr Abigail Fargher.  Dr Barker noted the previous diagnosis of mild to moderate intellectual retardation and cannabis abuse/dependence.  Dr Baker agreed with the diagnosis of mild mental retardation, which he noted was consistent with an intelligence quotient of 59 reported by Dr Fargher.

15.Dr Barker set out the statutory criteria and commented on Mr Goolagong’s ability in relation to each one. From Dr Barker’s report it would seem that Mr Goolagong is fit to understand the charge but is moderately unfit in relation to all of the other criteria.  The issue of the driving test was addressed in Dr Barker’s report to the extent that he reported Mr Goolagong’s explanation, which was to the effect that he had had significant assistance from other persons present.  This explanation appears inconsistent with the evidence before me. 

16.Dr Barker gave oral evidence.  Although cross-examined in detail he remained broadly attached to his opinion in relation to Mr Goolagong’s capacity. Dr Barker did however concede that Mr Goolagong’s ability to participate in proceedings could be improved by careful explanation and structured support through the proceedings, a process conveniently referred to as “scaffolding”.  Dr Barker identified Mr Goolagong as having a mental ability equivalent to a 10 year old. Specifically, Mr Goolagong is in Dr Barker’s opinion only able to manage concrete concepts, and is unable to weigh competing options. His understanding of court procedure does not extend beyond bail proceedings. He has a short attention span and limited cognitive function. He has such a deficit in his memory that, unless communicated instantaneously, instructions would be lost. Dr Barker was of the view that while scaffolding may be of assistance it was conceivable that Mr Goolagong may need every sentence explained to him.

17.Further evidence was adduced in relation to the nature of the charges and Mr Goolagong’s interaction with police.  It appeared to me that his interaction with police confirmed Dr Barker’s view that Mr Goolagong tended to answer in the affirmative when asked if he understood something, while in reality he had little or no grasp of the question or issue at hand.   The information in relation to nature of the charges and the flavour of the evidence against Mr Goolagong leads me to conclude that while the case is not generally complex it is foreseeable that Mr Goolagong may be required to understand the strength of circumstantial evidence against him and to instruct his legal representative in relation to his plea.  The case against him therefore appears to me to be at the lower to mid range of complexity.  This is the context in which I have addressed my consideration of the issues. 

Consideration

18.In considering this matter I have had regard to and applied the principles set out in Ngatayi v R (1980) 147 CLR 1 as well as the decisions binding on me in the ACT as set out in R v Monaghan [2009] ACTSC 61 (27 May 2009), Bailiff v R [2011] ACTCA 7 (25 February 2011), R v Fisher [2011] ACTSC 56 (1 April 2011), R v Monaghan (No 2) [2011] ACTSC 62 (14 Aril 2011), R v Monfries (No 2) [2011] ACTSC 205 (21 December 2011), R v Sutherland (2012) 262 FLR 267 (a case in which a similar IQ was recorded but apparently less cognitive deficit than in the instant case) and Greig v Dziubinski [2013] ACTSC 8 (18 January 2013).

19.In Greig v Dziubinski [2013] ACTSC 8 (18 January 2013), Refshauge J cited with approval the summary of the question to be answered by a Court in relation to a fitness to plead inquiry set out by Penfold J in Bailiff v R [2011] ACTCA 7 (25 February 2011) at 4; as follows:

Section 311 of the Crimes Act sets out the criteria for determining whether a person is fit to plead, and s 312 of that Act sets out the nature of the inquiry and determination .... In summary:

(a)    A person is presumed to be fit to plead.

(b)   The presumption is rebutted if it is established that the person is unfit to plead.

(c)    A person is unfit to plead if his or her mental processes are disordered or impaired such that the person cannot understand, or participate properly in, various specified elements of the normal criminal processes.

(d)   The question of fitness to plead is a question of fact to be decided on the balance of probabilities, with no party bearing the burden of proof.

20.The specified elements or criteria referred to by Penfold J are the steps and processes which the accused must have the capacity to understand, do or know as a minimum to ensure a fair trial.  They were identified in R v Presser [1958] VR 45 at 48, adopted by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230 and enacted as a statutory requirement in the ACT under s 311 of the Crimes Act 1900 (ACT).[1]  The section provides:

[1] R v Jonathon Monaghan [2009] ACTSC 61 (27 May 2009) at paragraphs 3-5, per Refshauge J.

311      When a person is unfit to plead

(1)     A person is unfit to plead to a charge if the person's mental processes are disordered or impaired to the extent that the person cannot—

(a)     understand the nature of the charge; or

(b)     enter a plea to the charge and exercise the right to challenge jurors or the jury; or

(c)     understand that the proceeding is an inquiry about whether the person committed the offence; or

(d)     follow the course of the proceeding; or

(e)     understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f)     give instructions to the person's lawyer.

(2)     A person is not unfit to plead only because the person is suffering from memory loss.

21.In order to be found unfit to plead, Mr Goolagong need only to be found to be unfit in respect to one criterion.  In order to be fit to plead he must meet all the criteria, that is, the “minimum standards which he needs to equal before he can be tried without unfairness or injustice”: R v Presser (at 48).[2]   

[2] Egan, Hawkins and Burr v JG [2010] ACTSC 53 at paragraph 72 per Refshauge J.

22.The first criterion to be considered  is:

(a)   to understand the nature of the charge

23.In order to be found not unfit to plead in relation to this criterion Mr Goolagong is required to understand, as set out by Refshauge J in Egan, Hawkins and Burr v JG [2010] ACTSC 53 at paragraph 81, “what conduct is prohibited by the charge itself in the circumstances under which it is laid.” Both Dr George and Dr Barker were of the view that Mr Goolagong could grasp the nature of the charges as a result of his ability to accurately describe, albeit in concrete terms, the substance of the charges against him. I am satisfied on the balance of probabilities that Mr Goolagong is not unfit in relation to this criterion, particularly if the charges are explained to him by a reasonably articulate legal representative and set out in concrete terms.

24.The second criterion is:

(b)   to enter a plea to the charge and exercise the right to challenge

25.As Refshauge J said in Egan, Hawkins and Burr v JG (at 86 and 88):

“The notion of being able to enter a plea is not merely the formal function of responding “guilty” or “not guilty” on arraignment, but “in the sense of a deliberate plea made recognition of its implications”: R v Griffith (at [28])”

“The ability to enter a plea is not by any means limited to a question of whether he committed certain acts or had certain mental states, it encompasses the forensic circumstances of what that entails.  It is also bound up in the context of the trial itself.”

26.Dr Barker’s assessment in relation to Mr Goolagong’s difficulty in weighing choices is particularly relevant in relation to this criterion.  It seems to me that Mr Goolagong would have “major difficulty in weighing up the evidence to be presented, making it extremely difficult for him to enter an appropriate plea or take advice from counsel.” R v Polanski [1999] NSWSC 433.

27.Considering all of the evidence before me, although it may be possible for Mr Goolagong to have a reasonably articulate lawyer explain matters in concrete terms to him it seems to me that his cognitive deficit is such that he is not able to make a decision with regards to a plea to be entered.

28.With regard to his ability to challenge jurors, it seems from the evidence of Dr Barker that he has no real insight into what a jury is. Despite being shown concrete examples by way of photographs, he was only able to interpret their role as “to learn how to be workers”.   With concrete explanation from Dr Barker Mr Goolagong did seem able to understand the concept of challenging a juror. 

29.With regard to the evidence before me in relation to this criterion I find on the balance of probabilities that Mr Goolagong is unfit to plead.

(c)    the proceeding is an inquiry as to whether the defendant committed the offence

30.In relation to this criterion Mr Goolagong has been reported by different report writers, including Dr Barker, to be unable to distinguish between a bail proceeding and any other form of hearing. It seems to me, however, that with a reasonably competent lawyer advising him in concrete terms Mr Goolagong may be able to understand that the proceeding is an inquiry into whether he committed the offences charged.  In relation to this criterion I find him on the balance of probabilities not unfit to plead.

(d)   to follow the course of proceedings

31.This criterion does not require Mr Goolagong to understand the evidence in detail but he would need to understand the substantial effect of the evidence that is being presented with the assistance of his legal representative: R v Dunne [2001] WASC 263 at 14. It was submitted that with a reasonably articulate lawyer assisting him Mr Goolagong would be able to meet this criterion. Dr Barker’s evidence was that Mr Goolagong’s cognitive capacity was such that if matters were explained to him in concrete terms, preferably with concrete examples, that Mr Goolagong may be able to follow basic proceedings. That Mr Goolagong is capable of understanding basic explanations is demonstrated by his success at passing the test to obtain a learner drivers licence. However, Dr Barker was also of the view that Mr Goolagong could conceivably need each sentence or phrase explained to him.

32.Mr Goolagong has a poor attention span as noted by both Dr George and Dr Barker.  This poor attention span seems to make him appear uninterested in proceedings, although he may also genuinely be disengaged with the process. He also has a poor short term memory.  Memory loss alone would preclude a finding of unfitness, however, the evidence provided of Mr Goolagong’s memory loss is very similar to that presented in Greig v Dziubinski. That is, it affects the cognitive processes, which in turn impairs his ability to participate in any trial at the required level.

33.I am of the view that even with a reasonably articulate lawyer assisting Mr Goolagong to understand the substantial effect of the evidence, such proceedings would have to be run at such a slow and interrupted pace as to make such proceeding practically impossible. Even with such detailed explanation it is doubtful that Mr Goolagong could pay attention for long enough to comprehend the explanation provided.  As noted in  Greig v Dziubinski at 81, “If through impairment, an accused or defendant cannot pay attention, that may justify a finding of unfitness.”

34.Considering all of the evidence I am satisfied on the balance of probabilities in relation to this criterion that Mr Goolagong is unfit to plead.

(e)   understand the substantial effect of any evidence that may be given in support of the prosecution.

35.Even with significant scaffolding in place it seems to me that Mr Goolagong would struggle with any evidence that departed from the very basic and concrete.  I am therefore satisfied on the balance of probabilities in relation to this criterion that Mr Goolagong is unfit to plead.

(f)     give instructions to the person's lawyer.

36.Mr Goolagong has significant difficulty in recalling the events surrounding his alleged offending.  He is also reported to have significant difficulty in presenting information to a court.  However, memory loss alone is not a ground for a finding of unfitness.    Whether Mr Goolagong could, with appropriate scaffolding in place (such as using his mother as a medium) give instructions to his lawyer or tell a court his version of events is debateable. In my view, on the balance of probabilities he is not unfit in relation to this criterion. 

Permanency of unfitness

37.I have found that in relation to three of the criteria Mr Goolagong is unfit to plead.  I must now determine whether Mr Goolagong is likely to become fit to plead within the next 12 months.

38.Although it seems from the evidence that there is likely to be some improvement in Mr Goolagong’s overall ability, it seems to me that his impairment is such that he is very unlikely to be fit to plead within the next 12 months. 

I certify that the preceding

38 numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Magistrate Boss.

Associate: A L Sinclair
Date: 28 February 2012

Counsel for the Informant:  Mr S Drumgold
Solicitor for the Plaintiff: Director of Public Prosecutions ACT
Counsel for the Defendant:  Mr M Lalor
Solicitor for the respondent:  Aboriginal Legal Service

Date of hearing:  25/9/12, 23/10/12, 9/11/12, 20/12/12, 17/01/13

Date of judgment:  28 February 2012