R v Arbolino

[2020] NSWDC 247

District Court

New South Wales

Medium Neutral Citation:

R v Arbolino [2020] NSWDC 247

Hearing dates:

18 May 2020

Date of orders:

22 May 2020

Decision date:

22 May 2020

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Orders at [53]

Catchwords:

Fitness inquiry - Presser test - agreement of experts

Legislation Cited:

Crimes Act, 1900

Mental Health (Forensic Provisions) Act, 1990

Cases Cited:

R v Presser (1958) VR 45

Kesavarajah v R (1994) 181 CLR 245; [1994] HCA 41

Category:

Principal judgment

Parties:

Regina (Crown)
David Arbolino (Accused)

Representation:

Mr G Brady (Counsel for Accused)
Mr D Henschell (Solicitor Advocate for Crown)

File Number(s):

2017/00380936

Publication restriction:

Section 578A, Crimes Act - A person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant.

Judgment

1. David John Arbolino, the accused, 39 years, has been charged with 3 offences of sexual intercourse without consent (section 61I, Crimes Act), one offence of attempt sexual intercourse without consent (section 61I/section 344A(1), Crimes Act) and, in the alternative, one offence of indecent assault (section 61L, Crimes Act).

Procedural History

2. On 22 February 2019 the accused appeared before Gosford District Court and was arraigned. The matter was listed for trial on 2 December 2019.

3. On 18 November 2019, the question of the accused’s fitness to be tried was raised by the accused’s legal representatives. The trial date was vacated and a new trial date of 18 May 2020 was allocated.

4. On 13 February 2020, that trial date was vacated and the matter was listed for a fitness inquiry.

5. On 18 May 2020, the fitness inquiry was conducted. Mr Henschell, Solicitor Advocate appeared for the Crown and Mr Brady of Counsel appeared for the accused.

6. I note at the outset that the experts are in agreement that the accused is unfit to be tried as a result of a likely permanent neurocognitive disorder caused by a motorbike accident in 2013.

The relevant law

7. A fitness inquiry is to be conducted in accordance with the relevant provisions of the Mental Health (Forensic Provisions) Act, 1990)(“the Act”).

8. The question of a person’s unfitness to be tried for an offence is to be determined by a Judge alone (section 11(1), the Act). The standard of proof is on the balance of probabilities (section 6, the Act).

9. An inquiry is not to be conducted in an adversary manner and the onus of proof of the question of a person’s unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence (section 12 (2) and (3), the Act).

10. Any determination by the court as to the question of unfitness to be tried, must include the principles of law applied by the Judge and the findings of fact on which the Judge relied (section 11(2), the Act).

11. If, following an inquiry, an accused person is found fit to be tried, the proceedings brought against the person in respect of the offence are to recommence or continue (section 13, the Act).

12. If an accused person is found unfit to be tried for an offence, the proceedings brought against the person in respect of the offence must not be recommenced and the Court  must refer the person to the Mental Health Review Tribunal (section 14, the Act)

13. In determining whether the accused is fit to be tried, the question is whether the accused, because of mental defect, fails to meet certain minimum standards beneath which the trial cannot be conducted without the possibility of unfairness and injustice to the accused (the “Presser” criteria).

14. The “Presser” criteria are derived from R v Presser (1958) VR 45 as affirmed in Kesavarajah v R (1994)181 CLR 245; [1994] HCA 41.

15. In R v Presser, Smith J stated as follows:

“And the question, I consider, is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.” 

The evidence

16. The following material was tendered on behalf of the Crown during the fitness inquiry:

1. Exhibit A - Indictment

2. Exhibit B - Crown Case statement

3. Exhibit C - Report of Dr Adams dated 21 January 2020.

4. Exhibit D – Report of Professor Greenberg dated 31 March 2020

5. Exhibit E – Crown Written Submissions

6. Exhibit F - Report of Ms Zingirlis dated 15 December 2019.

The Crown case

17. The Crown case stated briefly is that on 15 December 2017 it is alleged that the accused (then aged 36 years) whilst being cared for by the complainant, a carer provided by [redacted], grabbed the complainant and licked her vagina (count 1), penetrated her vagina digitally and with his hands (counts 2 and 3) and then attempted penile vaginal intercourse (count 4, in the alternative, count 5). It is alleged that throughout the incident, the complainant was physically resisting the accused and repeatedly telling him to stop.

18. The complainant remained at the accused’s premises until the end of her shift. She subsequently reported the matter to [redacted] who notified police.

19. The accused was arrested on 17 December 2017. He participated in a record of interview with police. He told police he had consensual intercourse with the complainant on the bedroom floor. He also stated that he had digitally penetrated the complainant. He stated the sexual assault ‘never happened’.

The medical evidence

1. Report of Ms Zingirlis, forensic psychologist 15 December 2019

2. Report of Dr Adams, forensic psychiatrist 21 January 2020

3. Report of Professor Greenberg, forensic psychiatrist 31 March 2020

20. Dr Adams assessed the accused on 16 October 2019. Ms Zingirlis conducted a neuropsychological assessment on 28 November 2019. Professor Greenberg assessed the accused on 24 March 2020.

The accused’s background

21. The following background is obtained from the reports of Dr Adams, Ms Zingirlis and Professor Greenberg.

22. The accused was born in Australia and is the youngest of two children born to his parents. He attended school until Year 9 and reported average grades. Upon leaving school he was employed as a carpet layer, in a factory and also in security. His last employment was as a labourer pumping concrete.

23. On 21 December 2013 the accused sustained a traumatic brain injury as a result of a motorbike accident. He had been the pillion passenger. The accused remained in hospital until 4 February 2014 when he was transferred to The Royal Rehabilitation Centre, brain injury unit where he remained for approximately 8 ½ months. Upon discharge he had impaired cognitive and motor functions. He required a power wheelchair as well as assistance with all self care tasks, daily living and financial matters.

24. At the time of each assessment, the accused was living in supported accommodation at Toukley provided by Compass Housing. He is in receipt of the Disability Support Pension and is provided with 24 hour care to assist with daily living.

Mental state examination

25. After conducting a mental state examination, both Dr Adams and Professor Greenberg were of the opinion that there was no evidence of any formal thought disorder. It was noted that the accused’s speech was slurred.

26. Dr Adams, Professor Greenberg and Ms Zingirlis reviewed and summarised various medical reports dated between 2014 and 2019 documenting the accused’s progress since he suffered the traumatic brain injury including a report prepared by Dr Klug, forensic psychiatrist.

27. The accused had been assessed by Dr Klug on 19 June 2017. Ms Zingirlis noted that Dr Klug assessed the accused as having ongoing “moderately severe cognitive problems and significant features of frontal brain damage”.

28. Dr Adams noted Dr Klug had identified various ongoing concerns with respect to the accused including:

“ episodes of agitation, excessive anxiety, severe nail biting, considerably diminished concentration… Poor short-term memory, irritability, diminished frustration tolerance, marked intolerance of any invasion of his personal space, poor social responsiveness, diminished social skills to the point of making inappropriate and hurtful statements to others, difficulties in following complex conversations, severe dependence on his mother…marked impulsivity, marked self-criticism, and difficulties with multi-tasking.”

29. Dr Adams further noted that Dr Klug had made a diagnosis of a chronic generalised anxiety disorder alongside the severe traumatic brain injury diagnosis. Professor Greenburg noted that in the opinion of Dr Klug, the accused’s prognosis was poor and unlikely to show any significant improvement.

30. Both Dr Adams and Professor Greenburg also reviewed a report of Dr McClure, psychiatrist who had assessed the accused on 7 February 2018. Professor Greenburg noted that Dr McClure was of the view that the accused had a severe traumatic brain injury and lacked insight into his condition. Further, Dr McClure was of the view that the accused had no psychiatric disability but his disabilties were the result of his traumatic brain injury.

31. After reviewing the available medical evidence, Dr Adams recommended that the accused undergo a comprehensive neuropsychological assessment.

32. That neuropsychological assessment was undertaken by Ms Zingirlis, forensic psychologist on 28 November 2019.

33. For the purposes of the assessment, Ms Zingirlis reviewed and summarised various medical reports between 2014 and 2018 including a report prepared by Dr Batchelor, psychologist.

34. Dr Batchelor had conducted a neuropsychological assessment of the accused at his home in January 2018. Ms Zingirlis summarised the results of that assessment as follows:

“Assessments were conducted with results for intelligence (borderline general ability), memory (extremely low auditory, visual and delayed memory and borderline visual and immediate memory), adaptive abilities (severe deficits) and emotional abilities (significant stress), it was deemed that Mr Arbolino:

“demonstrated evidence of a very significant disturbance of the ability to commit information to memory, the ability to recall information in the absence of cues or prompt and the ability to hold and manipulate material in mind. In addition, his capacity to reason, generate novel verbal responses and regulate his behaviour was severely reduced.”

35. Ms Zingirlis further noted that in the opinion of Dr Batchelor, the accused prognosis was poor and the impairments identified represent permanent deficits.

36. Ms Zingirlis noted there were some limitations upon the tests she was able to administer to the accused, due to the accused’s difficulties with concentration and fatigue. In relation to the tests she was able to administer to the accused, she noted the following:

“results from the assessment indicated that Mr Arbolino presented global impairments in the areas of orientation, immediate memory and incidental recall, mental control and adaptive functioning.”

37. Due to the limitations with respect to the accused completing relevant assessments, Ms Zingirlis also relied upon responses prepared by the accused’s mother.

38. In relation to the accused’s ability to participate in legal proceedings, Ms Zingirlis was of the opinion that there were significant concerns in relation to the accused executive functioning and working memory skills.

39. Ms Zingirlis noted:

“In addition, his fragile working memory indicates he may have trouble remembering things (e.g. instructions) even for a few seconds, keeping track of what he is doing and may miss information that exceeds his working memory capacity. He was also observed to quickly decompensate to the point of muted responses following a task that challenged him mentally, in which he then required sleep and rest for the remainder of the day to recover.

The information from this assessment indicates that Mr Arbolino will struggle to mentally attend to and follow legal proceedings, tolerate the associated emotional stress and will be unable to inhibit responses if he were to observe or hear versions of events that were contrary to his own. I would have concern of his ability to adequately instruct his council(sic) during these times or understand the options available for his defence.”

40. Both Dr Adams and Professor Greenburg were of the opinion that the accused’s clinical presentation was consistent with the diagnosis of a neurocognitive disorder due to the severe traumatic brain injury he had suffered following a motorbike accident in 2013.

41. Dr Adams summarised the accused’s cognitive disorder as encompassing the following:

“emotional instability, emotional dysregulation (an inability to adequately control one’s emotional state), impaired attention, impaired executive functioning (a term used to describe areas of cognition such as planning, decision-making, working memory, and completing complex tasks), impaired learning and memory, impaired verbal communication, impaired motor abilities, and impaired social cognition.”

42. Professor Greenburg summarised the accused’s neurocognitive and behavioural impairments as including:

“short-term memory impairment, impaired concentration, impaired articulation speech and some communication difficulties, reduced frustration tolerance, difficulty controlling his emotions with irritability and lability of mood, psychological sequalae including mild current anxiety and depression, heightened mental fatigue over periods of intense concentration, reduced ability to tolerate any invasion of his personal space, poor social responsiveness, diminished social skills and intolerance of noise.”

Assessment of the Presser criteria

43. In relation to an assessment of the Presser criteria, Dr Adams concluded as follows:

“Based upon the responses Mr Aborlino gave during my interview, it is reasonable to conclude that he has an adequate understanding of the knowledge-based Presser issues. He appreciated the current charges against him, the pleas available to him, the role of the criminal trial, and the role of the Court officers. Nevertheless, in my opinion his neurocognitive disorder impacts significantly upon significant Presser domains. His impaired concentration and executive functioning would significantly impair his capacity to follow the legal proceedings in a general sense, and significantly impair his capacity to understand the substantial effect of evidence given against him. His impaired social cognition, mood instability, and emotional dysregulation would significantly impair his capacity to provide his version of events in the context of stress. These deficits would also impair his capacity to follow legal proceedings in a general sense, particularly in a situation of heightened stress, which is a likely outcome during the legal proceedings.”

44. Dr Adams was of the opinion that adaptions that could be made to the legal proceedings (for example, additional support, more regular breaks and further input from his support network and legal team) would be insufficient to overcome his impairment. Dr Adams was further of the opinion that it is not likely his presentation will improve within a period of 12 months.

45. Dr Adams was of the opinion on balance that the accused would not be considered fit to be tried.

46. Professor Greenburg was of the opinion that the accused understood the nature of the charges he was facing, the nature of the proceedings (that it is an enquiry into the veracity of the allegations against him), that he had a rudimentary understanding of the various pleas to the charges and the concept of evidence and how it would be tested in court and could probably decide on what defence he should make.

47. Professor Greenburg was of the opinion that the accused did not appear to fully understand the course of the proceedings and the functions of the court or officers in court. Specifically, he did not understand the role of the prosecutor. After Professor Greenburg explained the role of the prosecutor to him in simple terms, he was unable to recall this information. Further, the accused did not have an understanding of how to exercise his right to challenge the jurors. Once again, after this was explained to him in simple terms by Professor Greenburg, he was unable to recall this information when questioned again.

48. Professor Greenburg was of the opinion that the accused cannot, at this time, appreciate the substantial effect of evidence given in court because of his multiple neurocognitive and behavioural impairments. Further, Professor Greenburg was of the opinion that the accused would likely have difficulty instructing his legal counsel in a complex trial. Professor Greenburg stated:

“I’m of the opinion that Mr Arbolino cannot give evidence at this time, if required to do so because he is a vulnerable person. He had a rudimentary understanding of the nature of an oath and the consequences of perjury.”

49. Professor Greenburg was of the opinion that, having regard to the Presser criteria and on the balance of probabilities, the accused was currently unfit to stand trial.

50. He was further of the opinion that the accused neurocognitive disorder is largely permanent and unlikely to significantly change over the next 12 months.

Consideration

51. Having regard to the available evidence, I am satisfied the accused is suffering from a neurocognitive disorder resulting in cognitive and behavioural impairment.

52. In relation to the satisfaction of the Presser criteria, I make the following findings:

1. Does the accused understand what he is charged with and is he able to plead to the charges? Both Dr Adams and Professor Greenberg are of the opinion that the accused has an adequate understanding of the current charges and the pleas available to him. In such circumstances, I am satisfied he understands what he is charged with and is able to plead to the charges.

2. Does the accused understand his right to challenge? Professor Greenburg was of the opinion that the accused did not have an understanding of how to exercise his right to challenge. In such circumstances, I am not satisfied the accused understands his right to challenge.

3. Does the accused understand generally the nature of the proceedings? Professor Greenburg was of the opinion that the accused did understand the nature of the proceedings (that it is an inquiry into the veracity of the allegations against him). In such circumstances, I am satisfied that the accused understands generally the nature of the proceedings.

4. Does the accused have the ability to understand the substantial effect of any evidence given. Dr Adams was of the opinion that the accused’s impaired concentration and executive functioning would significantly impair his capacity to understand the substantial effect of evidence given against him. Professor Greenburg was also of the opinion that the accused cannot, at this time, appreciate the substantial effect of evidence given in court. In such circumstances, I am not satisfied the accused has the ability to understand the substantial effect of any evidence given.

1. Does the accused have the ability to follow the proceedings (that is, understand what is going on in a general sense)? Dr Adams was of the opinion that the accused’s deficits (impaired social cognition, mood instability, and emotional dysregulation) would impair his capacity to follow the legal proceedings in a general sense, particularly in a stressful situation. Ms Zirgirlis was also of the opinion the accused would have difficulties following the proceedings. Having regard to the available evidence, I am not satisfied the accused has the ability to follow the proceedings.

2. Does the accused have the ability to make his defence or to answer to the charges? Is he able to give any necessary instructions to counsel to let his counsel know what his version of facts is and, if necessary, make his version of facts known to the court? Dr Adams was of the opinion that the accused’s neurocognitive deficits would significantly impair his capacity to provide his version of events. Professor Greenberg was of the opinion that the accused would likely have difficulty instructing his counsel and further, that he cannot give evidence at this time because he is a vulnerable person. Having regard to the available evidence, I am not satisfied that the accused has the ability to make his defence or to answer the charges, to give instructions to Counsel or make his version known.

53. Having regard to those findings, I am satisfied on the balance of probabilities that the accused is unfit to be tried.

The orders of the court are as follows:

1. I find that the accused David John Arbolino is unfit to be tried for the offences.

2. In accordance with section 14(a), Mental Health (Forensic Provisions) Act, I refer the matter to the Mental Health Review Tribunal.

3. I direct that the Registry provide a copy of the reports of Dr Adams, Professor Greenberg and Ms Zirgirlis to the Mental Health Review Tribunal together with a copy of my judgment.

4. In accordance with section 14(b), Mental Health (Forensic Provisions) Act, the proceedings are adjourned to 26 June 2020 for mention. The accused is excused if legally represented.

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Decision last updated: 07 August 2020