Director of Public Prosecutions v Dy
[2023] VSC 117
•6 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0050
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DY |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 March 2023 |
DATE OF RULING: | 6 March 2023 |
DATE OF REASONS: | 16 March 2023 |
CASE MAY BE CITED AS: | DPP v DY |
MEDIUM NEUTRAL CITATION: | [2023] VSC 117 |
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CRIMINAL LAW – Fitness to plead – Determination of unfitness to stand trial by judge alone – Attempted murder – Accused found unfit to stand trial – Profound psychiatric and intellectual disabilities – Accused remanded in custody – Suppression order – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 6, 7, 14C, 14E, 14F, 75.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | E Ruddle KC L McAuliffe | Office of Public Prosecutions |
| For the Accused | J Munster D Dempsey | Victoria Legal Aid |
HIS HONOUR:
Introduction
The accused man, DY [‘the accused’], is charged that on 18 March 2021 he attempted to murder the victim, RW. Further, he is charged that on the same date, without lawful excuse, he intentionally caused serious injury to RW in circumstances of gross violence.
At the time of his alleged offending, the accused was living in a supported residential care facility, where RW also lived as a resident.
It is alleged that around 4:20am on Thursday, 18 March 2021, the accused man took a brick from the courtyard area, entered RW’s room, and attacked her as she slept in bed, using the brick to hit her repeatedly over the head in an attempt to kill her. It is further alleged that when RW came to be on her stomach on the floor, the accused continued to hit her over the head with the brick, causing significant damage to her skull, brain and face. It appears that there were no known relationship issues or animosity between the accused and RW up to that point.
The accused is an Indigenous man who was 19 years old at the time of the attack. He was regarded as very antisocial, but had previously never been seen to be aggressive or confrontational with any residents or staff.
The accused is diagnosed with Autism Spectrum Disorder, Tourette’s syndrome, and schizoaffective disorder (or schizophrenia), and required a high level of care within the facility. He is also intellectually disabled.
The fitness hearing
The Defence Response to the Summary of Prosecution Opening in this matter sets out that the accused has profound psychiatric disabilities, and suffers not only from an intellectual disability but also other neuro-developmental conditions, most notably autism and schizophrenia. He has had multiple admissions to hospital and was in receipt of an extensive National Disability Insurance Scheme [‘NDIS’] package at the time of his arrest.
As a result of a series of psychiatric assessments, the matter of the accused man’s fitness to stand trial has now arisen. Pursuant to Division 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) [‘the Act’], the question of the accused’s fitness to stand trial can be determined by judge alone. The parties agree that this question should proceed on the basis that the Court sitting without a jury can determine the matter. Accordingly, the matter has proceeded on this basis.
This morning, the prosecution and defence confirmed that this investigation should proceed effectively with the consent of both sides, there being no issue between them that the accused is unfit to plead.
The evidence
Evidence of Associate Professor Andrew Carroll
Dr Andrew Carroll is a consultant forensic psychiatrist, holding the positions of associate Professor (Adjunct) at Swinburne University of Technology, consultant psychiatrist at the Victorian Institute of Forensic Mental Health (Forensicare) and Honorary Senior Fellow at the University of Melbourne. Dr Carroll authored a report dated 15 February 2022, regarding the accused man’s fitness to stand trial.
Dr Carroll examined the accused on 3 February 2023. The accused is currently in a custodial psychiatric facility. From extensive collateral material, Dr Carroll identified the accused has a very long and complex psychiatric history dating back to early childhood. Over his lifetime, he has been extensively assessed by many different professionals within a variety of different public mental health services. He has an established diagnosis of schizophrenia, an intellectual disability, Autism Spectrum Disorder and Tourette’s syndrome. He has had multiple admissions to hospital and was receiving NDIS support at the time of his arrest. A psychology report from Orygen Youth Health, dated 5 November 2018, included an assessment of intellectual functioning that noted a range of deficits including an IQ of 63 in an extremely low range, a working memory in the extremely low range, and processing speed in the extremely low range.
In interview, the accused was unable to give Dr Carroll an account of his personal history. The collateral material further noted that the accused has a significant history of childhood trauma, has never lived independently and is functionally significantly impaired.
In examination, Dr Carroll found that the accused suffers from a range of neuro-developmental disorders, all contributing to his being a person with “impaired mental processes” within the meaning of the Act. During his interview, Dr Carroll addressed the ability of the accused man to understand the nature of the charge, to understand the nature of a trial, to enter a plea to the charge, to exercise the right to challenge jurors, to follow the course of the trial, to understand the substantial effect of any prosecution evidence and to give instructions to his legal representatives. His report discusses each of these issues.
In his written conclusions, Dr Carroll expresses the opinion that the accused has “profound psychiatric disabilities”. He confirmed that the accused suffers not only from an intellectual disability but also other neuro-developmental conditions, most notably autism and schizophrenia. Currently, the accused receives appropriate medication and the positive symptoms of his schizophrenia (delusions and hallucinations) appear to be in remission. He has an impoverished daily routine, and the chronic neurocognitive symptoms of schizophrenia likely contribute to his cognitive deficits.
With reference to the relevant provisions of the Act,[1] Dr Carroll is of the opinion that the accused currently:
[1]The Act, ss 6-7.
(a) is unable to understand the nature of a trial;
(b) is unable to exercise his right to challenge jurors;
(c) would be unable to follow the course of any trial; and
(d) is unable to give instructions to his legal practitioners.
Dr Carroll emphasised in his oral evidence the abstract nature of some of these concepts.
Adopting a very low threshold, the accused man can enter a plea to the charge, is able to understand the nature of his charges, and can understand the substantial effects of evidence given in support. However, the deficits noted are secondary to his long-standing cognitive deficits. Based on the relevant criteria, Dr Carroll considers the accused to be currently unfit to stand trial because of impaired mental processes.
Furthermore, Dr Carroll considers that:
… his state of unfitness is likely to be permanent because it is secondary to persistent cognitive deficits: matters will not be improved by any further changes to his medication regime. In my opinion [the accused] is permanently unfit to stand trial.
Dr Carroll gave viva voce evidence confirming the opinions he expressed in his report. He emphasised the profound and complex neurodevelopmental disorder suffered by the accused. There are a range of interrelated manifestations, most relevant are the Autism Spectrum Disorder and intellectual disability. And when specifically asked about his report written on 15 February 2022, Dr Carroll confirmed that he holds the same opinions now (in March 2023) as he did back in 2022.
Dr Carroll also confirmed that he had read Leanne Kennedy’s report and, so far as he could comment, he agreed her findings were what he would expect. He agreed with her final conclusions and other aspects of her report.
Evidence of Leanne Kennedy
Leanne Kennedy is a clinical neuro-psychologist and has worked as a clinical neuro-psychologist and senior neuro-psychologist in the public health system for more than 16 years. She currently works in private practice providing neuro-psychological assessments and counselling. Ms Kennedy authored a report dated 3 June 2022, in which she assessed the accused man’s capacity to stand trial.
Her assessment indicated that the accused man’s level of intellectual functioning was in the extremely low range, at a level consistent with his diagnosis of intellectual disability. She confirmed the accused has significantly impaired comprehension level for oral discourse, and that he has multiple other diagnoses of Autism Spectrum Disorder with significant speech and language difficulties, schizoaffective disorder and Tourette’s syndrome. She is of the opinion that he has developmental disabilities which are lifelong conditions, particularly his intellectual disability and autism. His schizoaffective disorder, diagnosed in June 2018 in the context of a strong family history of psychosis on the paternal side, is ongoing but managed with medications. Similarly, the symptoms of his Tourette’s syndrome are managed somewhat with medications.
Ms Kennedy notes that the recent history of the accused revealed multiple inpatient psychiatric admissions during 2018, following an initial admission after expressing homicidal ideation towards his younger brother and thoughts of self-harm. A diagnosis of schizoaffective disorder was made in May 2018, with a first episode of psychosis in June 2017. Autism Spectrum Disorder was confirmed in August 2018. The accused was subject to an inpatient treatment order between June and August 2019, and referred to Orygen Youth Health who were involved in his care from June 2017 to January 2020.
Ms Kennedy applied various established assessment tools to the accused during the interview. It was noted that, at his assessment, his overall intellectual abilities were in the extremely low range, that his Verbal Comprehension Index was at the border of the extremely low and borderline ranges, and his oral discourse was impaired. Further, his Working Memory Index was in the extremely low range, and his ability to recall verbal information was in the extremely low range. He was unable to recall any verbal or visual information provided after a delay of approximately 20 minutes.
Ms Kennedy concluded that with respect to fitness to stand trial, the accused “… demonstrated extremely limited understanding of the components of the trial, who is involved, the roles played and so on”. Further, she concluded that the accused is unfit to stand trial on the basis that he was:
In summary, [the accused] demonstrated that he is unfit to stand trial on the basis of being:
1. Partially able to understand the nature of the charge: he understands that he injured someone with a weapon.
2. Unable to understand the nature of a trial.
3. Unable to exercise his right to challenge jurors or adequately understand the role of the jury.
4. Unable to follow the course of proceedings.
5. Partial/rudimentary understanding of evidence.
6. Unable to adequately comprehend or instruct his legal representatives.
7. Possible adverse effects of being subject to a trial include exacerbation of behavioural symptoms due to stress and unpredictability.
This situation is permanent as [the accused] will not gain cognitive capacity in order to follow the proceedings, nor to comprehend instructions and information from his legal representatives, nor to be able to adequately instruct his legal representatives.
In summary, Ms Kennedy is of the opinion that the accused:
… does not have adequate cognitive ability to comprehend the nuances of what a trial is, the various roles of people involved in the trial, the process, nor to adequately comprehend discussions with his legal representatives. In addition, he had limited ability to maintain focus without brief distractions every 5 or 10 minutes and this would limit his ability to follow events in court. … In my opinion, the accused is currently unfit to be tried. His lack of capacity is related to his intellectual disability as well as speech and language ability.
In my opinion, the accused will not become fit within the next 12 months. The conditions limiting his capacity to stand trial are his intellectual disability and speech and language disability. These conditions are permanent.
Submissions of the parties
Submissions for the accused
Counsel for the accused submitted that the evidence points all one way. The accused has failed more than one of the necessary tests set out in the Act in respect of fitness. He fails four minimum standards of capacity, and therefore in view of the shared and strong opinions of the experts, the finding should be he is unfit to stand trial.
Submissions for the prosecution
The prosecution’s submissions were very short and to the point. The evidence of Dr Carroll is not contested, and the approach taken by the defence in this matter is not under challenge by the prosecution.
Conclusions
The issue having been raised, on the investigation into the fitness of the accused man to stand trial, the Court has had relevant evidence placed before it, and the prosecution and defence have made submissions regarding the issue to be decided.
On the basis of the evidence placed before the Court, I am satisfied on the balance of probabilities that the presumption of fitness has been rebutted and the accused man is unfit to stand trial for the charges set out in the indictment.[2]
[2]The Act, s 7.
Evidence has established, to my satisfaction, that the accused man is unfit because his mental processes are disordered or impaired on the basis that he is unable to understand the nature of a trial, is unable to exercise his right to challenge jurors, is unable to follow the course of the trial, and is unable to give instructions to his legal practitioner.
I have noted that Dr Carroll has also expressed the opinion that adopting a very low threshold, the accused is able to enter a plea to the charge, able to understand the nature of this charge, and able to understand the substantial effect of the evidence given in support of the prosecution. Given the very low threshold, however, these matters do not change Dr Carroll’s ultimate conclusion of unfitness. Finally, Dr Carroll was unable to be convinced that the accused understood the concept of “not guilty by reason of mental impairment”.
Both Dr Carroll and Ms Kennedy are firmly of the opinion that the accused man is permanently unfit to stand trial. There is no evidence to the contrary before the Court, and no challenge has been made to their findings. Accordingly, pursuant to ss 14E and 14F of the Act, I am satisfied that the accused is not fit to stand trial and is not likely to become fit within the next 12 months. It follows that the Court must hold a special hearing under Part 3 of the Act within three months.
I am further satisfied that pursuant to s 14F(5)(a)(ii) of the Act, the accused must be remanded in custody until the special hearing takes place. Per s 14F(4), I am satisfied that there is no practicable alternative in the circumstances.
Suppression order
Finally, an application has been made pursuant to s 75 of the Act for a suppression order directed particularly towards suppression of the identity and location of the accused man.
As to therapeutic benefits, Dr Carroll gave oral evidence about this and swore that if the community was to become aware of the identity and location of the accused man, it would end up hindering his ultimate rehabilitation. Dr Carroll’s evidence was, as I understand it, unchallenged in this regard and the prosecution made no submissions in opposition to the application for a suppression order.
In those circumstances, I will grant the application for the suppression order on the basis that it is in the public interest to do so.
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