Director of Public Prosecutions v Adams
[2024] ACTSC 181
•11 June 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Adams |
Citation: | [2024] ACTSC 181 |
Hearing Dates: | 13 and 21 May 2024 |
Decision Date: | 11 June 2024 |
Before: | McCallum CJ |
Decision: | I find that it is not established that the accused is unfit to plead. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – FITNESS TO PLEAD – where accused has major neurocognitive disorder – whether fit to plead – whether appropriate to have regard to availability of an intermediary |
Legislation Cited: | Crimes Act 1900 (ACT), ss 311, 312 Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 4AA, 4AI, 4AJ, 79, 311 Evidence (Miscellaneous Provisions) Amendment Bill 2019 (ACT) Human Rights Act 2004 (ACT), s 21 Legislation Act 2001 (ACT), s 93(3) Magistrates Court Act 1930 (ACT), s 90B |
Cases Cited: | Devaney v R [2012] NSWCCA 285 Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1 R v Dunne [2001] WASC 263 R v Stevens [2010] SASCFC 1; (2010) 107 SASR 456 R v QX (No 2) [2021] ACTSC 244 Victors (a pseudonym) v DPP (No 2) [2023] ACTCA 27 |
Parties: | Director of Public Prosecutions Shakira May Adams ( Accused) |
Representation: | Counsel T Hickey ( DPP) J White SC ( Accused) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Accused) | |
File Numbers: | SCC 65 of 2023 SCC 66 of 2023 |
McCALLUM CJ:
1․Shakira Adams has been committed for trial on one count of manslaughter, one count of culpable driving causing death (presumably in the alternative to the count of manslaughter) and one count of driving a stolen motor vehicle. Ms Adams is also charged with two summary offences transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT), being a charge of aggravated dangerous driving and a charge of driving a motor vehicle on a public road having never held a driver’s licence as a repeat offender.
2․The prosecution case is that Ms Adams was driving a stolen Volkswagon Golf at high speed, either racing or being chased by the driver of a stolen Volkswagon Tiguan that was also travelling at high speed. The prosecution alleges that, after several earlier runs up and down another main road, the two cars came to be speeding along Hindmarsh Drive towards Fyshwick when Ms Adams drove across the grass median strip onto the wrong side of the road. It is alleged that she continued to drive at speed into oncoming traffic, narrowly missing another car before colliding head-on with a car being driven by Mr Matthew McLuckie, a young man on his way home from work. Mr McLuckie was killed.
3․The prosecution alleges that, immediately before she hit Mr McLuckie’s car, Ms Adams was travelling at no less than 177 km/h and possibly as fast as 186 km/h. As already noted, it is alleged that she had never held a driver’s licence. It is further alleged that a blood sample taken from Ms Adams within hours after the collision showed the presence of methylamphetamine, amphetamine and cannabis.
4․As a result of the collision, Ms Adams suffered numerous injuries including a severe traumatic brain injury, raising a question as to her fitness to plead. This judgment determines that question.
The nature of the test for fitness to plead
5․An accused person is presumed at law to be fit to plead: s 312(1) of the Crimes Act 1900 (ACT). The presumption is rebutted only if it is established, on investigation under div 13.2 of the Act, that the person is unfit to plead: s 312(2). The question of fitness is a question of fact to be decided on the balance of probabilities and as to which no party bears a burden of proof: s 312(3) and (4).
6․The test for determining a person’s fitness to plead is stated in s 311 of the Act as follows:
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.
7․Those tests reflect tests developed at common law. While it is always necessary to pay attention to the formulation of a statutory test to be applied in any particular case, it is recognised that some propositions concerning the issue of fitness to plead are of general application: Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at [27] (Gleeson CJ).
8․In Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1, the High Court considered s 631 of the Criminal Code of Western Australia, which prescribed a test of fitness in terms of whether the accused “is capable of understanding the proceedings at the trial, so as to be able to make a proper defence”. The plurality (Gibbs, Mason and Wilson JJ) rejected any suggestion that a test in such terms was to be applied literally, saying:
The test looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite a high order, particularly in cases where intricate legal questions arise. It is notorious that many crimes are committed by persons of low intelligence, but it has never been thought that a person can escape trial simply by showing that he is of low intelligence. We respectfully agree with the view expressed by Smith J in Reg v Presser that the test needs to be applied “in a reasonable and commonsense fashion” [citation omitted].
9․The extent of the required capacity to understand was considered again by the High Court in Eastman where Gleeson CJ observed at [22] that “[e]arly statements on the subject reflect what, in modern times, would be regarded as an unsophisticated approach to psychiatric questions, but they also emphasise that what is in question is a matter of comprehension, not skill”. His Honour noted in the same passage that “developments in the understanding of mental illness have elucidated the considerations that may be relevant to the inquiry” although the tests remain the same.
10․In the same case, Hayne J commented at [298] that, “[p]roperly understood, these tests may not be very difficult to meet”.
11․As noted by Miller J in R v Dunne [2001] WASC 263, the principles stated in Ngatayi and Eastman inform an understanding of statutory provisions that frame a test of fitness by reference to the accused’s ability to comprehend or understand. His Honour said at [14]:
It is the ability of the accused to follow the course of the trial, understand the substantial effect of the evidence presented by the prosecution and/or properly defend the charge assisted by counsel which are the relevant questions. The accused does not have to understand the evidence in detail, nor does she have to understand the law and its application to the facts of the case. [emphasis in original]
12․Finally, in assessing an accused person’s ability to understand the nature of the charge, it is necessary to have regard to the particular charge or charges faced. In R v Stevens [2010] SASCFC 1; (2010) 107 SASR 456, the South Australian Court of Criminal Appeal said at [57] (Sulan J, Nyland J and Layton J agreeing at [1] and [66]):
It is to be noted that the preamble and the wording of s 269H(a) and (c) indicate that the question of a person’s fitness to stand trial is required to be determined having regard to the charge and the allegations on which the charge is based. Mental unfitness is not to be regarded as an abstract concept. Some offences are more complicated to understand than others. There is a need when considering unfitness to stand trial that the particular charges and offences be considered when applying the test set out in s 269H.
13․The South Australian provision under consideration in that case differs from the ACT provision in that s 311 of the ACT Crimes Act refers to the person’s understanding of “the nature of the charge”, whereas the Court in Stevens referred to “the charge and the allegations on which the charge is based”. Even so, the proposition stated in Stevens is applicable here. Consideration of the allegations on which a charge is based is plainly part of the task of considering a person’s capacity to understand the nature of the charge.
Possibility of appointment of a witness intermediary for Ms Adams
14․During the hearing, I raised the question of whether Ms Adams’s fitness to plead should be determined having regard to the possibility that a witness intermediary might be appointed for her under the provisions of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The issue I sought to ventilate was whether, with the assistance of an intermediary, Ms Adams might be better able to follow the course of the proceedings.
15․Senior Counsel for Ms Adams submitted that the Evidence (Miscellaneous Provisions) Act does not allow for the appointment of an intermediary for Ms Adams for that purpose. I respectfully disagree.
16․The appointment of intermediaries is governed by Ch 1B of the Act. Section 4AJ in Ch 1B provides that a court “may appoint an intermediary in a criminal proceeding for a witness with a communication difficulty”.
17․The term “witness” is defined to include an accused person. Section 4AA of the Act provides:
witness, in a criminal proceeding, includes the accused person in the proceeding.
18․The term “communication difficulty” is not defined in the Act. An example is given under s 4AJ of the Act. In accordance with s 93(3) of the Legislation Act 2001 (ACT), the example is part of the provision, but it is not comprehensive. The term “communication difficulty” has been interpreted broadly: see R v QX (No 2) [2021] ACTSC 244 at [62]-[79] (Loukas-Karlsson J).
19․Section 4AI provides that the functions of witness intermediaries are as follows:
(1) The functions of an intermediary appointed for a witness are to—
(a) prepare and provide reports about the witness’s communication needs as required; and
(b) at a hearing—
(i) communicate to the witness questions put to the witness, to the extent necessary for the witness to understand the questions; and
(ii)communicate to the person putting questions to the witness, the witness’s answers to the questions, to the extent necessary for the person to understand the answers; and
(iii)otherwise assist the court, and any lawyer appearing in the proceeding, to communicate with the witness.
(2) An intermediary appointed for a witness is an officer of the court and must act impartially when assisting communication with the witness.
20․Mr White SC, who appears with Dr de Bruin for the accused, submitted that, on its proper construction, s 4AJ does not permit the appointment of a witness intermediary for an accused person unless they give evidence. Implicitly, the argument was that an accused person who does not elect to give evidence is not a “witness” within the meaning of the Act. While that is an available interpretation, and is indeed the interpretation that reflects the ordinary meaning of the word “witness”, I do not think it can be the correct interpretation. Rather, in my view, this is an occasion on which the statute must be construed to have given an extended definition to the word “witness” so as to include the accused in any trial. I have reached that conclusion for the following reasons.
21․First, had the Legislative Assembly intended to confine the availability of intermediaries in that way, it could have defined the term “witness” to include “an accused person who elects to give evidence in the proceeding” (as opposed to including “the accused person in the proceeding”). The term “witness” is not so confined. It extends, in terms, to “the accused”, regardless of whether the accused elects to give evidence.
22․Secondly, while it may be accepted that some of the functions of an intermediary are expressed by reference to the process of giving evidence, those functions also extend to preparing and providing reports about the person’s communication needs (s 4AI(1)(a)) and assisting the court, and any lawyer appearing in the proceeding, to communicate with the person (s 4AI(1)(b)(iii)). Those are functions that could provide important assistance to an accused person during a trial regardless of whether they give evidence. In that respect I do not accept the submission put on behalf of Ms Adams that the appointment of an intermediary risks attenuating the right of an accused person to choose and communicate with legal representatives. On the contrary, it is clear that the functions are intended to facilitate those processes.
23․Thirdly, to confine the availability of intermediaries to those accused who elect to give evidence would be unworkable. It is axiomatic that an accused person cannot be required to foreshadow an election to give evidence. That decision can be postponed, or at least kept private, until the minute the accused decides to enter the witness box (or not). However, the process for the appointment of an intermediary for a person requires that the application be made in advance of the hearing, to allow for the preparation of a report and the holding of a ground rules hearing. If an accused person with a communication difficulty had to foreshadow their intention to give evidence in order to obtain the benefit of the intermediary service, it would erode the entitlement of an accused to remain silent as to that election.
24․Fourthly, the explanatory statement for the Evidence (Miscellaneous Provisions) Amendment Bill 2019 (ACT), which introduced Ch 1B of the Act, states that the amendments were intended to “engage and support the right to a fair trial” under s 21 of the Human Rights Act 2004 (ACT). If the right to the appointment of an intermediary for an accused person with a communication difficulty were confined to the subset of accused persons who elect to give evidence, that would create unequal treatment of accused persons. In doing so, it would favour those who elect to give evidence, which in turn would tend to undermine the right to silence. That is an unlikely construction. Furthermore, being one that derogates from a fundamental right (at least comparatively), it would be one that needed to be stated in clear terms. No such clear statement appears in the Act.
25․For those reasons, I do not accept Mr White’s submission as to the construction of the Act. In my view, Ch 1B permits the appointment of an intermediary for the accused in a criminal proceeding before the trial and regardless of whether the accused elects, at the time the application is made or otherwise, to give evidence in the trial.
26․Adopting and adapting the approach explained by Miller J in Dunne set out above, in my view the relevant question is Ms Adams’s ability to follow the course of the proceeding, understand the substantial effect of any evidence that may be given in support of the prosecution and give instructions assisted by counsel and having regard to the availability of the assistance of an intermediary. In accordance those same observations, Ms Adams does not have to understand the evidence in detail, nor does she have to understand the law or its application to the facts of the case.
Investigation of Ms Adams’s fitness to plead
27․Ms Adams was committed for trial on 14 March 2023. At that time, the question of her fitness to plead had been reserved by the Magistrates Court, as required under s 314 of the Crimes Act.
28․On the first return of the proceedings in this Court (23 March 2023), the Registrar requested a fitness to plead report. A report was provided by Dr Anthony Barker, consultant forensic psychiatrist, on 14 June 2023. Dr Barker’s report was somewhat equivocal and did not express an opinion as to the ultimate question. In saying so, I intend no criticism of Dr Barker. On the contrary, it was entirely appropriate for his opinion to be so confined. He could only give opinion evidence based on his specialised knowledge based in turn on his training, study or experience: s 79 of the Evidence Act 2011 (ACT).
29․Following the receipt of Dr Barker’s report, the prosecution retained Professor David Greenberg, forensic psychiatrist, to provide a second opinion. Professor Greenberg provided a report dated 18 October 2023 in which, by reference to the tests in s 311(d), (e) and (f) of the Crimes Act, he expressed the opinion that Ms Adams was unfit to plead or stand trial and unlikely to become so within 12 months.
30․The proceedings came before me on 22 November 2023. On that occasion, the only evidence on the question of fitness to plead was the reports of those two psychiatrists. On the strength of those reports, the position of both parties was that Ms Adams was not fit to plead. Senior Counsel then appearing for the DPP provided detailed written submissions in which it was “reluctantly” submitted that Ms Adams was unfit to plead by reference to the tests in s 311(d), (e) and (f) of the Crimes Act. Counsel for the accused did not provide separate written submissions but adopted those of the DPP.
31․I indicated that the evidence of the two experts alone did not appear sufficient to rebut the presumption of fitness. In light of the position that had been adopted by the DPP in the written submissions, and to ensure Ms Adams was afforded procedural fairness, I adjourned the hearing for further investigation and to enable her counsel to obtain instructions as to any further evidence that might be adduced. I noted in particular the absence of any evidence from any person more familiar with Ms Adams than the two expert witnesses or any evidence as to any difficulty encountered by the lawyers in obtaining instructions, as to which see Victors (a pseudonym) v DPP (No 2) [2023] ACTCA 27 at [24]. I do not mean to suggest that such evidence must necessarily always be adduced. As already noted, neither party bears an onus of proof on the issue of fitness. Nevertheless, in the absence of such evidence, it may be difficult for a court to determine that the presumption of fitness is rebutted in respect of that limb of the test.
32․The parties subsequently informed the Court that they wished to cross-examine the two psychiatrists. To facilitate that process, I directed the psychiatrists to confer and to provide a joint report to the Court. The hearing resumed on 13 May 2024. On that occasion, the joint report was tendered together with statements from two social workers- who have been involved in the care of Ms Adams. The statements of the social workers did not take the issues much further. It may be accepted that their experience of Ms Adams is consistent with the diagnosis of major cognitive impairment disorder. However, their evidence was not specific as to the likely course of a trial.
33․The prosecution also tendered body cam footage of attendances by police at the house where Ms Adams now lives for the purpose of bail checks. The admission of that evidence was opposed by the accused. I have watched the footage and, as indicated at a previous hearing, determined that it should be admitted. It shows that the accused has a capacity to recall past events. Otherwise, however, the footage is not particularly helpful and I have not given it any great weight.
34․The psychiatrists gave concurrent evidence at the hearing and were cross-examined by both parties. Before considering their opinions on the six tests in s 311 of the Crimes Act, it is helpful to refer briefly to their written reports.
Report of Dr Barker
35․Dr Barker examined Ms Adams on 22 May 2023, just over a year after the collision. He also had access to a neuropsychological report dated 25 November 2022 prepared by a clinical neuropsychologist, Ms Elise Harrison. Ms Harrison had undertaken her neuropsychological assessment of Ms Adams about six months after the collision. She reported that Ms Adams demonstrated “relatively intact basic attention and working memory” but that she had “substantial difficulties in all other areas assessed”. Ms Harrison stated that “some small, gradual gains” might be seen over the next year or two but that Ms Adams was expected to have “severe and permanent cognitive dysfunction”.
36․Dr Barker addressed each of the six criteria in s 311. I will return to his opinions on those matters. Based on his assessment and Ms Harrison’s report, he concluded that Ms Adams suffers from a significant and enduring cognitive impairment which he said “is likely to markedly impact on her ability to be an effective participant in the course of the proceeding”. He said that, if the Court were able to take very frequent breaks (every thirty minutes), then “it is possible that Ms Adams would be sufficiently able to follow the course of the proceeding such as to be considered fit to plead”. On the assumption that the Court would not be able to take breaks at such frequency, Dr Barker thought Ms Adams’s attention “would inevitably deteriorate to the point where she would not be able to follow the course of the proceeding, and accordingly would not be considered fit to plead”. I note that it is not uncommon for the Court to take frequent breaks for the benefit of a witness where that is the recommendation of an intermediary.
Report of Professor Greenberg
37․Professor Greenberg examined Ms Adams on 27 September 2023. He had access to Dr Barker’s report, the prosecution brief and medical records from Ms Adams’s extensive stay in the University of Canberra Rehabilitation Hospital.
38․Professor Greenberg’s report is a comprehensive psychiatric report that includes a complete history and a lengthy recitation of the medical records, apparently verbatim and without analysis.[1]
[1] For example he recites, without comment, a reference to an exchange with a nurse in which Ms Adams indicated an understanding that she faced the prospect of going to gaol if discharged from the rehabilitation ward.
39․As part of his mental status examination, Professor Greenberg tested Ms Adams with the Australian version of the Addenbrooke’s Cognitive Examination (ACE-R) which he described as “a brief cognitive test which assesses five cognitive domains, namely attention/orientation, memory, verbal fluency, language and visual special abilities”. Professor Greenberg explained that the ACE-R is not a conclusive diagnostic test for neurocognitive disorder but “a tool to aid the clinician in making a clinical diagnosis”. Ms Adams scored 61/100 against a “cut-off score” of 82-88/100.
40․It is difficult to assess the significance of the results of that test for present purposes. Certainly, it indicated difficulties with attention, concentration and memory. However, the test also included “general knowledge questions such as the name of the current Australian Prime Minister, the Premier of NSW, the name of the current USA President or the USA President who was assassinated in the 1960s”. Testing of that kind may be pertinent for the purposes of a mental health assessment against the criteria in DSM-5 but is entirely unhelpful in the present context.
41․The testing further revealed that Ms Adams “lost points for naming objects” and “needed explanation for more complex words such as the monarchy, marsupials and nautical”. Again, the helpfulness of such testing for present purposes may be doubted.
42․Of greater significance is Professor Greenberg’s clinical diagnosis based on the injuries suffered by Ms Adams and the results of the neuropsychological assessment conducted by Ms Harrison six months post-injury, which featured heavily in Professor Greenberg’s conclusions. Professor Greenberg addressed the criteria in s 311 and I will return to his opinions on those matters.
Diagnoses
43․Professor Greenberg expressed the opinion that Ms Adams qualifies for the diagnoses of “major neurocognitive disorder” and “substance use disorder”. He expressed the further opinion that Ms Adams “likely qualifies for having underlying cluster B personality problems which pre-date her post-injury neurocognitive disorder behavioural problems”. However, he stopped short of giving that diagnosis, explaining that it would require “further clinical assessment and collaborative information”.
44․Dr Barker gave a diagnosis of “major neurocognitive disorder, traumatic brain injury”. As already noted, he concluded that Ms Adams suffers from a significant and enduring cognitive impairment which he said “is likely to markedly impact on her ability to be an effective participant in the course of the proceeding”.
Consideration of the tests in s 311 of the Crimes Act
45․As already explained, Ms Adams is presumed to be fit to plead and that presumption is rebutted only if it is established on the balance of probabilities that she is unfit to plead. In accordance with s 311, she is unfit to plead if it is established that her mental processes are disordered or impaired to the extent that she cannot do any of the six things listed in the section. While neither party bears a burden of proof in relation to the question of fitness, the effect of the rebuttable presumption of fitness is that Ms Adams is taken to be fit to plead unless it is established otherwise by reference to any one of those six tests.
46․The section refers to mental processes that are “disordered” or “impaired”. There was no suggestion that Ms Adams’s mental processes are disordered. However, there was clear evidence that her mental processes are impaired in that, as a result of the very collision that has given rise to the charges against her, she has suffered traumatic brain injury as a result of which she has a diagnosed “major neurocognitive disorder”.
47․The critical question is the extent of the impairment of her mental processes, in particular, whether the impairment is established to be to the extent that she cannot do any of the six things specified in s 311. That assessment must be governed by the fundamental requirement of our criminal justice system, guaranteed at common law and confirmed by s 21 of the Human Rights Act, that Ms Adams is entitled to a fair trial. Nothing in the provisions of the Crimes Act dealing with fitness to plead derogates from that right. Ms Adams cannot have a fair trial if she is unfit to plead. Accordingly, the ultimate question must be whether the impairment of her mental processes is established to be to the extent that she cannot do any of the six things to the standard appropriate to ensure a fair trial. As already explained, that assessment must be undertaken in a reasonable and commonsense manner, having regard to the nature of the allegations and the availability of assistance from counsel and a witness intermediary.
48․If the answer to any one of the questions posed by s 311 is “yes”, the conclusion must be that Ms Adams is unfit to plead.
Is it established that Ms Adams cannot understand the nature of the charges? (s 311(a))
49․The answer to this question must be no. In the joint report, the experts agreed that Ms Adams “does understand in a general sense what she’s been charged with” and that she “generally is aware what the police are alleging”.
50․The evidence on this issue included the following exchange with Dr Barker:
WITNESS BARKER: …Yes, I think that she has an understanding of the nature of the charge.
MR HICKEY: And is that based on - you’ve tried to reflect that in your report about - is it some of the things that she’s said to you? For example, she knows that she’s been charged with manslaughter.
WITNESS BARKER: Yes, that’s correct.
MR HICKEY: She knows that that relates to her allegedly killing someone.
WITNESS BARKER: Yes.
MR HICKEY: It relates to her conduct in driving a car that resulted in that.
WITNESS BARKER: That’s certainly an inference that can be drawn from what she said.
MR HICKEY: All right. And she’s also aware that she’s been charged with driving a stolen car.
WITNESS BARKER: Yes, that’s correct.[2]
[2] Transcript of hearing dated 13 May 2024,15.7 – 15.28.
51․Professor Greenburg agreed that Ms Adams could understand the nature of the charges. However, he identified significant concerns about her memory. He said that Ms Adams claimed that all of the information she was able to recall about the offending was not a proper recollection of the event but a recollection of what she had later been told.
52․Professor Greenberg said that Ms Adams has extreme impairment in relation to short term memory and the retrieval of memory. He said:
She’s able to retain simple information, but not complex or sequential information. If you give her two or three sequences of facts, she can’t - she has extremely severe impairment with short-term memory, with retention of memory, and also retrieval of memory.[3]
[3] Transcript of hearing dated 13 May 2024,18.44 – 18.47
53․He said her new memory is very simplistic and brief. It will be necessary to return to the significance of that aspect of Ms Adams’s impairment.
Is it established that Ms Adams cannot enter a plea to the charges? (s 311(b), first limb)
54․The answer to this question must be no. Both experts agreed that Ms Adams mental processes are not impaired to the extent that she cannot enter a plea. In the joint report, they said that she understands a plea of guilty and a plea of not guilty and has a general understanding of the consequences of both.
Is it established that Ms Adams cannot exercise the right to challenge jurors or the jury? (s 311(b), second limb)
55․I have concluded that the answer to this question is no.
56․In the joint report, the experts were agreed in the opinion that Ms Adams does not understand how to exercise her right to challenge jurors. However, the exploration of those opinions in cross-examination revealed that they were based on a literal application of the words of the statute that did not account for the availability of the assistance of counsel or reflect the practical experience of the courts.
57․Dr Barker said:
I wasn’t completely satisfied that she might be able to challenge jurors or the jury. However, if she were adequately represented, then I think that her legal representation would be sufficient to assist her through that process to the same extent as any other accused in a trial.[4]
[4] Transcript of hearing dated 13 May 2024, 20.6 – 20.9
58․Dr Barker said that he explained the process of challenging a jury to the accused and while she was not sure it was something she could do, she was content to defer that task to her lawyer to undertake.
59․Professor Greenburg said he explained to Ms Adams that she had the right to challenge jurors. He said she could not exercise that right because of her inability to grasp the concept that a jury is impartial or to recall the process of challenging a juror. He agreed with Dr Barker that Ms Adams could communicate to her lawyer standing next to her whether she liked a person based on appearance alone. However, he said that she does not have a concept of what a juror does. The prosecutor asked whether changing the language from juror to judge could assist Ms Adams. Professor Greenberg agreed that it could assist her to understand the role of jurors. He said that, if concepts were broken down into small, non-sequential steps, it is possible that Ms Adams could challenge members of the jury.
60․This aspect of the test for fitness to plead is one in which the assistance of counsel plays a very significant role. It has been observed that challenging jurors is an arbitrary process, based as it is (in Australia) on appearance alone. I consider that, with the assistance of counsel and provided the process is taken slowly, Ms Adams has no lesser capacity than any accused to exercise the right to challenge jurors.
Is it established that Ms Adams cannot understand that the proceeding is an inquiry about whether she committed the offence? (s 311(c))
61․The answer to this question must be no. In the joint report, the experts agreed that, on balance, Ms Adams has “a rudimentary level of understanding that the proceedings is an inquiry about whether [she] committed the offence”. However, they agreed that she would benefit from additional support during any trial to assist her understanding of this issue. Such support will be readily available from her counsel.
Consideration of the experts’ conclusion that Ms Adams is unfit to plead
62․As already noted, the experts agreed that Ms Adams is unfit to plead based on the remaining tests, being the tests in s 311(d), (e) and (f).
63․Dr Barker explained that opinion in the context of his earlier equivocal report, saying:
… My impression was that she would experience significant challenges through the sort of trial that would be expected with charges of this nature, and that even with appropriate supports, that she would have significant difficulties in undergoing that trial process to the point where the - my impression was that she would probably be unfit to plead. I didn’t go quite to the point of specifying in my report that she would be unfit to plead, but I think by outlining that I had significant concerns, I think - I think that was the message that I was trying to convey.[5]
[5] Transcript of hearing dated 13 May 2024, 12.41 – 13.3
64․Before turning to the remaining tests, it is appropriate to consider the proper approach to expert evidence.
65․The opinions of the psychiatrists, being agreed as between the two of them and uncontradicted by any different opinion, plainly warrant respectful consideration. However, to the extent that they strayed beyond their expertise, their opinions are unhelpful to the court.
66․The deference that is due to expert psychiatrists on criminological issues was considered in a different context by the NSW Court of Appeal in Devaney v R [2012] NSWCCA 285. That was an appeal against sentence. Addressing a submission by the Crown that “there should be some discounting of the clarity and force of the psychiatric evidence because the applicant did not give evidence”, Allsop P said at [88] (Price J agreeing at [101]):
It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect (although care needs to be taken not effectively to exclude admissible evidence by a process going beyond an assessment of weight); it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional. [citations omitted]
67․Campbell J at [144] accepted the force of the view “that the expertise of psychiatrists extends to assessment of the significance of a patient’s history for the purpose of diagnosis”. However, his Honour noted that “a question may still arise about the reliability of the patient’s account without calling into question the expert’s reliability or competence”. He added that “psychiatrists are not experts in the acceptability of lay evidence”, citing HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at 427 [42]-[44].
68․It may equally be noted that psychiatrists are not experts in criminal proceedings. There is a significant difference between the task undertaken by a psychiatrist in forming a diagnosis based on the medical history and in accordance with the criteria stated in DSM 5 and a psychiatrist forming what is essentially a predictive opinion as to an accused person’s ability to follow the course of a process that is unfamiliar to the psychiatrist.
69․It may be accepted that, in the absence of any compelling reason to reject the expert medical evidence, the Court should accept it. The question is what that evidence establishes. The diagnoses of major neurocognitive disorder cannot be doubted. However, an accused person is not necessarily to be taken to be unfit to plead because they qualify for that diagnosis: Stevens at [61]-[62]. The significance of the diagnosis must be assessed in the context of the Court’s distinct legal expertise in the nature of criminal proceedings.
70․The difficulty I have with the opinions of the experts in the present case is that, in my assessment, they have applied a standard of understanding and analysis that is higher than the standard accepted in the authorities for determining fitness to plead discussed at the outset of this judgment. This is not a case where, for example, the accused’s ability to follow the evidence is impaired by psychosis or dementia so that she will have no understanding of it or will only be able to process it in a disordered way.
71․I turn to consider the experts opinions concerning the remaining tests against those considerations.
Is it established that Ms Adams cannot follow the course of the proceeding? (s 311(d))
72․In the joint report, the experts agreed that Ms Adams would have “a diminished capacity to follow the course of the proceedings”. They said:
In our view, she would have difficulty following the proceedings due to her impaired attention span, distractibility, emotional dysregulation, behavioural disinhibition, poor ability to learn new information, impaired memory, and her slow speed of mentally processing information. In our view, even with specific accommodations such as additional support, more frequent breaks, avoiding legal jargon, slowing the pace of the proceedings, Ms Adams would not currently meet the threshold for following the course of the proceedings.
73․However, as noted in the DPP’s further written submissions, the experts did not explain what “threshold” they were applying. Their opinion refers to a diminished capacity, whereas the statutory test refers to inability or incapacity.
74․In cross-examination, the experts expanded upon those opinions but did not resile from them. Dr Barker said that Ms Adams is likely to understand what her lawyer was saying but perhaps not in relation to a witness. He said that breaks every thirty minutes for approximately fifteen minutes would assist her to understand the proceedings. He anticipated that the effect of those breaks would be cumulative to the extent that breaks may eventually be required for a number of days prior to reconvening.
75․Dr Barker said that Ms Adams may display signs that she is not following the proceedings by yawning, looking around the room and becoming restless.
76․Dr Barker said that, given the usual length of a trial, Ms Adams would have difficulty recalling evidence from different stages of the trial, identifying inconsistencies in evidence and relaying those inconsistencies to her legal representative. That opinion reflects assumptions that do not represent the applicable test. Being represented by counsel, Ms Adams will not be required to undertake that kind of forensic analysis during the trial.
77․Professor Greenberg stated that Ms Adams would not be able to follow the course of the proceedings because she would not be able to deal with the complexity or volume of information presented. He said she would not be able to retain, comprehend or analyse complex information and that even with support and breaks she would not be able adequately to follow the process. He stated that she does not retain information for more than 30 minutes. However, that opinion is at odds with information Ms Adams is recorded to have given the experts during their assessments, which included accounts of events she must have observed or been told longer ago than thirty minutes.
78․Professor Greenberg conceded that, if the evidence of several witnesses was presented to Ms Adams globally (for example, that several witnesses saw her speeding), she may understand it but would not retain it for long. As I will explain, that opinion was also at odds with an account she gave to the experts as recorded in their reports (considered below).
79․The evidence of the experts on this issue did not engage with the nature of the charges or the likely course of the trial. As submitted by counsel appearing for the prosecutor on the last two days of the hearing, Mr Hickey, the prosecution alleges that the accused drove a stolen car on the wrong side of a road into oncoming traffic at no less than 177 km/h causing a head-on collision with another car, which resulted in the death of the other driver. Mr Hickey anticipated that the length of the trial in normal circumstances would likely be less than a week. Of course, it may be accepted that it will take longer if breaks are allowed of the kind discussed in this judgment.
80․Mr Hickey noted that the owner of the stolen car is likely to be a witness to say her car was stolen. A friend of the accused saw her get into and drive the stolen car immediately before the collision. There are six witnesses who describe the accused's car as travelling at extreme speeds. There is another witness who swerved and narrowly avoided a collision with the accused's car when it was driving the wrong way towards him moments before the collision with Mr McLuckie. There is an expert crash investigator who will say that, immediately before impact, the accused's car was travelling at no less than 170 km/h and that neither car had time to avoid the collision. There is also evidence of Professor Duflou as to the cause of Mr McLuckie's death.
81․It may be seen that the allegations raised by the prosecution, based on that description of the case, are not complex. Nor does it appear there will be any need for the accused to “analyse complex information” in order to follow the trial. In my assessment, it is not established on the evidence before me that Ms Adams cannot follow the course of the proceeding.
Is it established that Ms Adams cannot understand the substantial effect of any evidence that may be given in support of the prosecution? s 311(e) of the Crimes Act
82․In the joint report, the experts agreed that Ms Adams “cannot, at this time, appreciate the substantial effect of evidence given in court.” They supported that opinion by noting that she tends to digress off topic because of her short attention span. They also referred to her “prevailing labile mood”, which would impair her capacity to focus on evidence over several days. They stated that she can display “some degree of control of her mood and impulsivity” for very short periods but that “her cognitive impairments would significantly impact on her understanding of the substantial effect of any evidence that may be given in support of the prosecution”.
83․Professor Greenburg gave evidence that Ms Adams cannot understand complex facts. He referred in that context to paragraph 12 of the prosecution case statement, which describes the manoeuvres of the Tiguan and another vehicle during the period leading up to the accident. He said Ms Adams struggles with new or sequential information. However, it is doubtful whether, applying the tests discussed in the cases to which I have referred, that degree of understanding and analysis is necessary in order for a person to understand the effect of evidence for the purposes of s 311.
84․Furthermore, as already noted, that opinion is at odds with accounts Ms Adams gave to the experts. For example, she told Dr Barker, “It was a stolen car … they’re trying to say I stole it … I never stole it, I bought it. I bought it for a ball of ice”. Those remarks plainly reveal an understanding of a central allegation in support of that charge (that the car was stolen) and a capacity to instruct her lawyers in response to that allegation (I didn’t steal it, I bought it).
In my assessment, it is not established that Ms Adams cannot understand the substantial effect of any evidence that may be given in support of the prosecution.
Is it established that Ms Adams cannot give instructions to her lawyer? (s 311(f))
In the joint report, the experts agreed that Ms Adams “cannot currently instruct her lawyer on an ongoing basis during a trial as a result of her cognitive and behavioural impairments due to her traumatic brain injury.” Professor Greenburg said her capacity to instruct her lawyer would be challenging at best.
85․The difficulty with the experts’ opinions on this issue is that it is hypothetical. As already noted, there is no evidence before me that Ms Adams’s lawyers have in fact encountered any difficulty obtaining instructions from her. Her exchanges with Dr Barker suggest that she may well be able to provide instructions as to the allegations against her, to the extent that she has any recollection of the events in question. To the extent that her memory fails her, that is irrelevant to the test of fitness to plead. In my assessment it is not established that Ms Adams cannot instruct her lawyers.
Conclusion
86․For those reasons, I am not persuaded that it is established that Ms Adams is unfit to plead. Accordingly, it follows within the presumption of law that at this point of the proceedings and on the evidence before me she is taken to be fit to plead.
87․I find that it is not established that the accused is unfit to plead.
| I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 13 June 2024 |
11
6