R v BF (No 4)
[2019] ACTSC 346
•20 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v BF (No 4) |
Citation: | [2019] ACTSC 346 |
Hearing Dates: | 4 November 2015, 20 April 2016 |
DecisionDate: | 20 April 2016 |
Reasons Date: | 10 December 2019 |
Before: | Penfold J |
Decision: | The accused is fit to plead |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Fitness to plead – intellectual disability – capacity to exercise right to challenge jurors or the jury – accused found fit to plead |
Legislation Cited: | Crimes Act 1900 (ACT) ss 311, 312 |
Cases Cited: | R v Bailiff [2010] ACTSC 54; 5 ACTLR 1 |
Parties: | The Queen (Crown) BF (Accused) |
Representation: | Counsel K Mackenzie (Crown) P Smith (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 180 of 2014 |
PENFOLD J:
Introduction
BF was charged with two offences including one of sexual intercourse with a person under the age of 10 years. He was 16 to 18 at the time of the alleged offending. Questions were raised about BF’s fitness to plead, and on 20 April 2016 I found that he was fit to plead to the charges.
Background
The question of BF’s fitness to plead was raised in 2014 after he was committed to the Supreme Court for trial. In November 2014 I ordered an assessment of BF’s fitness to plead, and of whether a mental impairment defence might be available to him. A bundle of earlier psychiatric and psychological assessments, and other relevant documents, were provided to ACT Forensic Mental Health (FMH) for the purposes of the assessment.
There were then some delays in finishing the assessment process, contributed to by a variety of problems relating to the availability of assessors, and then by the decision of BF’s family to obtain an independent assessment after the FMH psychiatrist Dr John Kasinathan assessed him as fit to plead.
The hearing finally began in November 2015. Evidence was given by Dr Kasinathan, by Dr Douglas Boer (the psychologist engaged by BF’s family) and by BF’s father, Mr Bottles, who disputed some of the factual matters recorded in Dr Kasinathan’s report. The matter was again adjourned so that Dr Kasinathan could be recalled to give further evidence, and the hearing finally concluded on 20 April 2016, at which point I determined that BF was fit to plead.
The test for fitness to plead
Sections 311 and 312 of the Crimes Act 1900 (ACT) are relevant:
311When 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.
312 Presumption of fitness to plead, standard of proof etc
(1)A person is presumed to be fit to plead.
(2)The presumption is rebutted only if it is established, on an investigation under this division, that the person is unfit to plead.
(3)The question of a person’s fitness to plead—
(a)is a question of fact; and
(b)is to be decided on the balance of probabilities.
(4)No party bears a burden of proof in relation to the question.
The evidence
Generally
Both Dr Kasinathan and Dr Boer accepted that BF had an intellectual disability. I note at this point Dr Kasinathan’s evidence that according to the DSM-5:
intelligence and intellectual disability is conceptualised as three parts: cognitive ability, or IQ testing, or book smarts is simply one of the three aspects. The other two aspects are social intelligence and practical intelligence, and practical intelligence are things to do with activities of daily living, ability to engage in supportive work and education and so forth, and social is, of course involving social interaction with family and friends.
Both the experts, although approaching some of the issues in slightly different ways, were satisfied that, with certain kinds of support, and with certain adjustments to the standard trial processes (such as slowing down the court processes to account for his relatively slow processing of information, frequent breaks in proceedings, and permitting him to have a support person or mentor to explain things to him), BF would be able to participate adequately in the aspects of his trial described in s 311(1)(a), (c), (d), (e) and (f) of the Crimes Act.
Dr Kasinathan was also satisfied that he could deal adequately with entering a plea and exercising the right to challenge jurors or the jury (s 311(1)(b)), but Dr Boer had expressed some doubts about BF’s capacity in these respects.
Could BF enter a plea to the charge and exercise the right to challenge jurors or the jury?
Dr Kasinathan considered that BF understood the different plea options available to a person in court. He told Dr Kasinathan, “I didn’t do it, I didn’t nothing, I am pleading ‘not guilty’”. Dr Kasinathan reported that BF explained to him that pleading not guilty meant that “I didn’t do it”.
Dr Kasinathan also considered that BF was able to grasp the concept of a jury. He did report that BF struggled to understand his right of challenge to a juror, but presented as partially understanding when Dr Kasinathan had used a simple example. Dr Kasinathan opined that, “[w]ith the attentive support of his lawyer, he should be able to grasp his right of challenge, were this relevant”.
In cross-examination, Dr Kasinathan said:
MR SMITH: I put it to you what was put to him was what does a jury do and he was not able to answer that?---No. He understood the concept of a jury. He was able to understand that the jury would decide if he was guilty or not guilty. I concede he did struggle with the issue of right of challenge and I have made that apparent in the report and certainly if her Honour felt that that was an issue, it is her Honour's call to find him unfit based on that one aspect.
In re-examination, Dr Kasinathan gave the following evidence:
MS MACKENZIE: You said that in relation to his ability to understand his right of challenge to a juror, that you gave a simple example. Do you remember what the simple example was?---I'd usually – I'm not a very inventive person, so I usually say something like a person comes up for the jury selection and they're wearing a shirt saying "I hate Andrew", or, "I hate people with red hair." Because I think at that time [BF] had red hair, I think. And he understood that - well, he seemed to grasp that, "Okay, that wouldn't be good for me on the jury." Although at that stage I thought he would benefit from support on the issue of challenge to jurors.
I note for the record that one of the matters challenged by Mr Bottles (at [4] above) was whether and how Dr Kasinathan had tested BF’s understanding of his right to challenge a juror. Mr Bottles agreed in evidence that Dr Kasinathan had asked BF a question along the lines described by Dr Kasinathan (at [12] above), but said that the question “was nothing to do with the jury or fitness”. I am satisfied, despite Mr Bottles’ view, that Dr Kasinathan’s approach was a satisfactory way of testing BF’s understanding of the issue concerned.
Dr Boer reached a different conclusion. He reported that, when he asked BF what it meant when a person pleads not guilty, BF said, “they have to tell the judge ‘I’m not guilty’ like on Law & Order”. When asked by Dr Boer what happens to someone who pleads not guilty, BF said “I don’t know”. When Dr Boer asked BF what pleading guilty might mean, he replied, “you go to jail” and to a similar question about what happens to someone who pleads guilty, he said, “you go to Court”.
Dr Boer also reported that when he asked BF what the job of the jury was, he answered, “to ... (long pause) I don’t know”. When describing the job of the judge to Dr Boer, BF answered, “to say not guilty, I don’t know”. When describing the job of the prosecutor, BF responded, “the judge? To tell them the truth”. BF described his own lawyer’s job as “to tell them what’s happening” and the psychiatrist’s job, “yes, to look after people”.
However, in cross-examination, Dr Boer gave this evidence:
MS MACKENZIE: And do you think if supported, would he be able to adequately, at the minimum level, exercise his right?---I think it's really, you know, that the practical intelligence, the social intelligence of someone with Andrew’s level of cognitive functioning is to quickly defer to any authority. So, if the lawyer says I think we should do X, let's do X. I am not at all sure even with support, that Andrew would get what he could do in terms of talking to the jury or challenging a jury.
If challenging a juror ‑ ‑ ‑?---He didn't know what the job of the jury was.
Could that be explained to him?---Yes, I think I am unclear of what Dr Kasinathan's example was. Dr Kasinathan is of the opinion that he was able to grasp the concept of a jury given his example. My worry when someone has that low a level of cognitive ability is that parroting back, even in a paraphrased way, what was just said to them might show understanding, but probably just shows a good way of coping socially.
In your view, would [BF] understand if he was told that you can assist in choosing your jurors by saying whether you want someone to be on the jury or not, would he understand that he has that right and he can say whether he wants that person on the jury or not? Because at its most basic level, that's what that requirement is?---I think he would be looking to his lawyer and saying do we want that person. Do you want this person? I don’t know. Do we want that person? That's 99 percent certainty the answer you are going to get and that doesn't show to me that he understands what the question is about, or its implications.
However, Dr Boer did concede that if the court proceedings could be done in “plain language”, BF would be able to understand much of those proceedings:
MS MACKENZIE: … So you said that he processes slowly. If the court process was slowed down, there were a number of adjournments, and not always waiting for [BF] to ask for it to be slowed down, but it be proactively slowed down and proactively adjourned, have regular breaks, could that assist him if he had someone to mentor him in just very simply understanding the court proceedings?---If the entire proceedings could be done in plain language, which is an actual technical term for working with people with an intellectual disability, he could probably understand quite a lot of what was going on.
Okay?---My problem with the court system, with all due respect to the court here, "[BF], do you understand," will invariably get a yes, because he is in awe of the court and of the judge and of everyone asking him questions.
Consideration
Capacity to enter a plea
I was satisfied, having regard to Dr Kasinathan’s evidence quoted at [9] above, that BF did in fact have an adequate understanding of the nature and significance of a plea, at least in his own case. To the extent that his responses to Dr Boer (at [13] above) suggested a less adequate understanding, I suspect that reflected BF’s difficulties with the more abstract questions apparently asked by Dr Boer.
Capacity to exercise the right to challenge jurors or the jury
Dr Kasinathan’s evidence quoted at [10] and [12] above suggested to me that BF had an adequate understanding of the role of the jury and that, in particular, he understood that a juror’s attitude to him might be significant in his trial.
Dr Boer in his evidence quoted at [15] and [16] above reported somewhat confused responses from BF, but again this evidence suggested to me the use of unnecessarily abstract questions (while noting Dr Boer’s warnings to the effect that an intellectually disabled person may tend to be acquiescent in dealing with authority figures, this being “a good way of coping socially”).
Dr Boer’s real problem, however, seemed to be that during the empanelment of the jury:
[BF] would be looking to his lawyer and saying do we want that person. Do you want this person? I don’t know. Do we want that person? That's 99 percent certainty the answer you are going to get and that doesn't show to me that he understands what the question is about, or its implications.
Dr Boer may well have been correct in his comments about how BF would deal with the decision about whether to challenge potential jurors. However, those comments did not seem to describe anything relevantly different from the process as it involves accused persons without any kind of intellectual disability. There is, generally, little or no science involved in deciding whether or not to challenge a potential juror, and to the extent that there is anything approaching science in such circumstances, it is almost certainly something on which an accused person’s lawyer would be able to advise rather than something on which the accused person would be able to advise the lawyer.
It was clear from Dr Kasinathan’s evidence at [12] above that BF understood that he would not want anyone on his jury who he thought would dislike him for any reason – but I could not see any reason to conclude that his gut reaction on that topic would be any less accurate than that of any other accused person. If there was a suspicion that a particular potential juror would dislike or distrust BF for a rational reason not otherwise obvious to him, he should have been able to rely on his lawyer, or perhaps his support person or mentor, to point that out, and to advise him accordingly.
In R v Bailiff [2010] ACTSC 54; 5 ACTLR 1 I said:
59. I have previously commented on whether jury challenges have any particular rationality to them; see Steurer at [41], where I said:
the process of challenging jurors without cause is not necessarily a rational process for any accused person, and will often be influenced by beliefs that, while not delusional, are not particularly well-founded.
60. In general terms it may be rational for an accused person to try to assess whether a potential juror is likely to be more or less sympathetic to him or her, but a rational basis for assessing this, especially given the very limited information that an accused person in the ACT has about potential jurors at the time the jury is empanelled, is in most cases almost impossible to identify.
Conclusions
In those circumstances, I could not be satisfied, on the balance of probabilities, that BF’s mental processes were disordered or impaired to the extent that he could not enter a plea to the charges or could not exercise the right to challenge jurors or the jury. As already noted, there was no evidence before me suggesting that he could not adequately participate in the other aspects of his trial as described in s 311(1) of the Crimes Act.
Accordingly, by reference to the presumption set out in s 312(1) of the Crimes Act, I concluded that BF was fit to plead, and indicated that I would provide written reasons later. These are those reasons.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 10 December 2019 |
*********************
Amendments
21 February 2020 Anonymise the accused’s name and replace with “BF”.
Replace the Case Title with “R v BF (No. 4)”.
At [1], replace “He was 18 at the time of the alleged offending” with “He was 16 to 18 at the time of the alleged offending”.