R v DM
[2011] ACTSC 167
R v DM [2011] ACTSC 167 (12 October 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – whether accused unfit to plead – scope of s 311 of the Crimes Act 1900 (ACT) – profoundly deaf and intellectually disabled accused with no mental illness – no requirement for mental illness for finding of unfitness to plead to be available.
Crimes Act 1900 (ACT), s 311
Crimes Amendment Act 2005 (ACT)
Mental Health (Treatment and Care) Act 1994 (ACT), s68
Mental Health (Treatment and Care) (Amendment) Bill 1999 (ACT)
Criminal Law Consolidation Act 1935 (SA)
Crimes Act 1928 (Vic), s 426
Eastman v The Queen (2000) 203 CLR 1
R v Kesavarajah (1994) 181 CLR 230
R v Mailes [2001] NSWCCA 115
R v Miller (No 2) (2000) SASC 152
R v Presser [1958] VR 45
William Alfred Sexton (2000) 116 A Crim R 173
Explanatory Memorandum for the Mental Health (Treatment and Care) (Amendment) Bill 1999 (ACT)
No. SCC 187 of 2010
Judge: Penfold J
Supreme Court of the ACT
Date: 12 October 2011
IN THE SUPREME COURT OF THE )
) No. SCC 187 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
v
DM
ORDER
Judge: Penfold J
Date: 12 October 2011
Place: Canberra
THE COURT FINDS THAT:
DM is unfit to plead to the charges of acts of indecency.
DM is unlikely to become fit to plead to those charges within the next 12 months.
Introduction
DM has been charged with five counts of act of indecency on a young relative. The offences are alleged to have been committed between 8 May 1997 and 30 June 2000.
A question has arisen about DM’s fitness to plead. The test for fitness to plead is set out in s 311 of the Crimes Act 1900 (ACT), as follows.
(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.
DM’s disabilities
DM is 53 years old. He is profoundly deaf. He has never mastered either lip-reading or a sign language, and does not vocalise in a way that is understandable to strangers. It seems that the only substantive communication he generally manages is with his mother and one of his brothers, and that communication is achieved through a mixture of signing, lip-reading and apparently a fair bit of guessing and assuming on both sides (not always accurately). DM may have very basic reading and writing skills, but these display evidence of dyslexia. There is no evidence before me that any reading or writing ability would be adequate to enable communication about the progress of a trial.
DM has also been assessed as suffering an intellectual disability as described below.
Dr Rodrigues’ assessment
DM was assessed by psychologist Dr Otilia Rodrigues, who in a report dated 25 February 2010 provided the following comments about DM’s background:
[DM] is a deaf man, who comes from a very supportive family. He appears to have been sheltered from the general community. Tragically, it appears that his family was misinformed in relation to [DM’s] capacity to acquire sign language. The ideology of the time was that deaf people were seen as “deaf and dumb” and unfortunately for [DM] it appears that he was labelled. Thus, the stigma prevented his family from getting him appropriate education. It is unfortunate that [DM’s] family were told many years ago that he would not acquire Auslan. This is no fault of his family and to their credit they have supported [DM] throughout his life.
For her assessment, Dr Rodrigues used the General Ability Measure for Adults 1997 (GAMA), a non-verbal test which Dr Rodrigues says is a reliable assessment tool for people from culturally, linguistically and educationally diverse backgrounds, including those with communication difficulties.
Dr Rodrigues’ assessment was that DM fell into the “below average” range of intelligence, described as having an IQ of 70 to 79, which would place him in the bottom 2% of individuals his age in the norming sample population. However, Dr Rodrigues reported that DM’s below average intelligence is further compromised by a lack of stimulation that has in turn been caused directly by his deafness, and indirectly by his almost complete inability to communicate and by the relative social isolation that has resulted from his family’s very protective approach to his care. DM’s inability to communicate is itself apparently a product of a lack of training in sign language, his inability to lip read and possibly his dyslexia; I note also that there is no evidence before me of any serious attempt to teach DM to read or write at any useful level.
Dr Rodrigues’ view is that the overall effect of DM’s deafness and how it has been handled throughout his life is that, although his GAMA results place him at the “Below average” level of intelligence, he is actually functioning only at the “Well below average” level, such as would be expected from a person with an IQ of 69 or below.
Dr Kasinathan’s assessment
Dr Kasinathan of Forensic Services, Mental Health ACT provided a psychiatric report about DM dated 27 October 2010.
Dr Kasinathan’s interview with DM was conducted with the help of DM’s brother and an Auslan (Deaf Signing) interpreter. Dr Kasinathan wrote:
The interpreter reported that [DM’s] sign language was rudimentary at best and “not in keeping with current vocabulary”. The interpreter reported that time frame questions were particularly difficult. The interpreter felt that [DM] understood only some of the Auslan sign language and relied on lip reading and the prior context of the conversation to understand new questions. [DM] answered “good, yes” to most questions. The interpreter reported that some statements made by [DM] were completely coherent; these were quoted by the writer in the content of this report.
The quoted statements referred to by Dr Kasinathan include DM’s comment about the charges he is facing, being “the little girl maybe said bullshit ... it’s all good now” and “I am not guilty, it means no”.
Dr Kasinathan further reported:
[DM] was barely able to follow the course of an intensive forensic psychiatric assessment with the writer. It was apparent (to the interpreter and the writer) that at time [sic] he did not understand what the Auslan interpreter was signing or saying. ... In the course of this psychiatric assessment, although [DM] appeared to attend to (and look at) the Auslan interpreter, he frequently misinterpreted questions as incorporating content previously discussed.
Dr Kasinathan said that DM does not have a “severe mental illness” and “does not have any other psychiatric diagnosis, as per DSM-IV-TR (American Psychiatric Association 2000)”, but he did not challenge Dr Rodrigues’ assessment, and concluded that DM has a “mild to moderate Intellectual Disability”.
Consideration of fitness to plead criteria
Both Dr Rodrigues and Dr Kasinathan consider that DM is unfit to plead.
Both expert witness provided assessments which referred to some or all of the specific aspects of the trial process set out in the ACT legislation (at [2] above). However, neither assessment explicitly addressed the fact that unfitness to plead under the ACT legislation depends on the person’s inability to participate in those trial processes because of disordered or impaired mental processes.
Can deafness or intellectual disability result in unfitness to plead?
There is no challenge to the proposition that DM has an intellectual disability, but no suggestion that he has a mental illness.
The question is whether the difficulties caused by his intellectual disability, his deafness, or his intellectual disability combined with his deafness, mean that DM would not be able to engage adequately with the relevant trial processes because his “mental processes are disordered or impaired”.
Legislative requirement for disordered or impaired mental processes
The requirement that the accused’s incapacity to engage with trial processes be due to disordered or impaired mental processes is relatively new in ACT legislation.
The relevant phrase appeared in s 68 of the Mental Health (Treatment and Care) Act 1994 (ACT) in 1999 and was carried across when the power to determine fitness to plead (previously exercised by the Mental Health Tribunal) was conferred on the Supreme Court by provisions that were inserted in the Crimes Act by the Crimes Amendment Act 2005 (ACT).
In the Crimes Act, and also in the predecessor provisions in the Mental Health (Treatment and Care) Act, there was no definition of “mental disorder” or “mental impairment”. There was, however, for some time, a definition of “mental dysfunction” to mean:
a disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion.
However, the phrase was not used in relation to unfitness to plead and does not seem to be relevant to the current inquiry.
The Mental Health (Treatment and Care) (Amendment) Bill 1999 (ACT) inserted new ss 68(3) and (3A), which later became ss 311(1) and (2) of the Crimes Act. The Explanatory Memorandum for that Bill explained new ss 68(3) and (3A) as follows:
Subsection 68(3) is omitted and new subsections 68(3) and (3A) inserted. New subsection 68(3) is to the same substantive effect as the omitted subsection. Paragraphs (a) to (f) define the criteria for unfitness to be tried. They are a codification of the common law criteria in R v Presser [1958] VR 45 and the rule in R v Kesavarajah [1994][sic] 181 CLR 230.
The new provision is substituted as it is considered to be a clearer and more accurate articulation of the Presser test.
On the basis that the ACT legislation is intended to be a statutory articulation of the test in R v Presser [1958] VR 45 (Presser), it is appropriate to consider how that test has been applied in cases similar to this one.
Relevant cases
R v Mailes
In R v Mailes [2001] NSWCCA 155 (Mailes) at [95], Wood CJ at CL (with whom Spigelman CJ and Greg James J agreed) addressed the question whether a person who:
... is intellectually disabled ie developmentally disabled, but who does not suffer a mental illness within DSM IV or within the colloquial meaning of that expression, can qualify for a fitness hearing under the [Mental Health (Criminal Procedure) Act 1990 (NSW)]. (emphasis in original)
The NSW legislation did not specify the criteria for fitness to be tried, and relied instead on the common law. In the ACT, as already noted, s 311 of the Crimes Act provides a statutory codification of the common law test in Presser.
In Mailes, Wood CJ at CL, in order to determine the common law approach to persons not suffering from mental illness, made an exhaustive review of the authorities, going back to medieval times, and also reviewed the authorities on the scope of purposive interpretation of legislation, concluding:
(a) that the common law recognises reasons other than mental illness as giving rise to questions about a person’s fitness to plead (for instance at [116], [123] and [156]); and
(b) that the relevant NSW legislation should not be read down to confine its application to unfitness arising from mental illness (at [213]).
In the course of that review, Wood CJ at CL adverted to decisions and statutory provisions with more direct similarities to the ACT position.
R v Presser
The Presser test, referred to in the Explanatory Memorandum quoted at [22] above, is set out in Presser, in which Smith J enunciated the now well-known common law test for whether an accused person can be tried “without unfairness or injustice to him”; at 48 his Honour said:
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 so 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.
Before that, however, Smith J considered s 426 of the Crimes Act 1928 (Vic), which dealt with the case in which a person presented for an indictable offence is “insane”, and said (also at 48):
The cases to my mind show clearly that the word “insane” in s. 426 does not mean “insane” in the colloquial sense. It means “of impaired mentality to such a degree as to be unfit to be tried”. Whether an accused man is insane in that sense is, of course, a very different question from the question whether he is insane in the colloquial sense. A mere lack of formal education, a mere lack of familiarity with court forms and procedures, would not, of course, render a man unfit to be tried, but he may, upon the test of fitness for the purposes of the section that has been laid down in the cases, be held unfit to be tried when he is far from being insane in the colloquial sense. Dixon, J., as he then was, mentioned in Sinclair v. R. (1946), 73 C.L.R. 316, that it does not seem to have been noticed by the text writers how high a degree of intelligence the test might demand if it were literally applied. But he is not there, in my view, suggesting that it should be applied in any extreme sense, or in any over-literal sense. It needs, I think, to be applied in a reasonable and commonsense fashion. 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.
Eastman v The Queen
In Eastman v The Queen (2000) 203 CLR 1 (Eastman), Gaudron J (in the minority but in a statement not questioned in any of the other judgments) referred to Presser, and said at [59]:
A number of matters should be noted with respect to what was said in Presser. The first is that the question whether a person is fit to plead may arise for reasons other than mental illness. It may arise, for example, because a person is deaf and dumb or, more generally, because language difficulties make it impossible for him or her to make a defence. (citations omitted)
R v Miller (No 2)
In R v Miller (No 2) (2000) SASC 152, Martin J considered the position of an accused person who it appeared might have suffered frontal lobe damage as a result of a serious head injury and might also have suffered brain damage from “persistent heavy alcohol abuse” (at [9]). A psychologist (quoted at [9]) gave evidence that “the accused’s overall cognitive functioning is at the average range for a six-year-old, but his ability to think in an abstract way is significantly below that of an average six-year-old as it is almost non-existent”.
For the purpose of determining the accused’s fitness to be tried, his Honour applied s 269H of the Criminal Law Consolidation Act 1935 (SA), which is as follows:
Mental unfitness to stand trial
269H. A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is –
(a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
Although the South Australian provision describes the capacities that the accused must have in terms different from those in the ACT legislation, its introductory words (“if the person’s mental processes are so disordered or impaired that”) are relevantly identical to the ACT words (“if the person’s mental processes are disordered or impaired to the extent that”).
Martin J began by stating at [2] that the accused “suffers from a mental disorder”; he then considered the matters set out in s 269H(a) to (c), and at [43] found, having regard to evidence from several expert witnesses, that the accused was unable to understand the charge against him. That is, the accused’s low level of cognitive function, or perhaps the frontal lobe damage and possible brain damage, of themselves were accepted as amounting to a mental disorder.
William Alfred Sexton
In William Alfred Sexton (2000) 116 A Crim R 173 (Sexton), the South Australian Court of Criminal Appeal (Gray J, with whom Prior and Williams JJ agreed) said at [54]:
Unfitness to be tried at common law is not limited to cases of mental illness. There are broader considerations, including one’s inability to communicate and participate in the trial process. An inability to communicate or comprehend may be based upon physical disabilities alone, such as hearing and speech impediments. The common law does not require the presence of any psychological or intellectual impairment.
In relation to s 269H of the Criminal Law Consolidation Act (discussed at [32]-[33] above), Gray J said at [61]:
I consider the tests for determining unfitness for trial are the same at common law as under s 269H of the Criminal Law Consolidation Act. Both tests provide that a person is fit to stand trial if he or she, in general terms, has sufficient understanding to comprehend the nature of the trial so as to make a proper defence to the charge. The question of whether a person is fit to stand trial may arise for reasons other than mental illness. It may arise, for example, because a person is deaf and dumb or more generally because language difficulties make it impossible for a defence to be made.
Conclusions about operation of Crimes Act s 311
I am satisfied that s 311(1) extends to cases in which an accused person is unable to engage adequately with the specified aspects of a trial as a result of intellectual disability, or another form of disability such as deafness, that prevents or unduly restricts the person’s comprehension of some or all of the trial processes. That conclusion relies on:
(a) the statement that s 311 of the Crimes Act is intended to set out the Presser test (at [22] above);
(b) the common law’s recognition (as noted in Presser, by Gaudron J in Eastman, and by the South Australian Court of Criminal Appeal in Sexton), that fitness to plead or to be tried might be impaired by physical or mental disabilities (at [28]-[30] and [35] above); and
(c) the authorities to the effect that an relevantly identical legislative test extends to mental disorders arising from physical or intellectual disability (especially at [36] above).
Is DM unfit to plead?
It is possible that a person suffering only the level of underlying intellectual disability diagnosed by Dr Rodrigues might nevertheless in some circumstances have enough comprehension of criminal processes and his or her role in them to be found fit to plead. However, DM’s actual level of functioning as described by both Dr Rodrigues and Dr Kasinathan seems to me to fall well below that point. DM’s initially low level of intellectual functioning, instead of being mitigated by intensive training and stimulation, has been aggravated by the substantial obstacles to communication suffered by DM as a result of his deafness, which have in turn both contributed to, and been contributed to by, a lack of any useful therapy and an absence of stimulation or challenge throughout his life.
There is some hint in DM’s “conversations” with the two expert witnesses that DM has a very basic comprehension of the charges he is facing, to the extent that he has suggested that the complainant was not telling the truth about certain incidents and that he wished to plead not guilty. However, Dr Kasinathan found that DM:
(a) frequently misinterpreted questions from the Auslan interpreter as incorporating content previously discussed;
(b) could not grasp the concept of a jury or of challenging a juror;
(c) showed a limited understanding of what went on in court, indicating that “they talk”, and the judge “talks and writes things down”;
(d) seemed to have difficulty with the concept of being represented by a lawyer or of giving the lawyer a version of the facts; and
(e) was unable to give any “rational reasoning” to justify his claim to be “not guilty”.
Dr Rodrigues concluded that DM:
(a) does not understand what he has been charged with, what the allegations against him mean or his right to challenge those allegations;
(b) would not be able to follow court proceedings because of his primitive language and the limited help that could be provided to him even by an Auslan interpreter;
(c) would have difficulty understanding the role of witnesses and the scope for challenging their evidence; and
(d) would probably not be able to give instructions to his solicitor (to some extent because of his inexperience in decision-making in general).
The combination of DM’s intellectual disability and his profound deafness, and the responses to those disabilities over many years, have left DM functioning at a very low level, such that I am satisfied that he would not be able to engage with the trial processes in all the ways set out in s 311(1) of the Crimes Act. As a result of mental processes disordered or impaired by his deafness and his intellectual disability, I am satisfied that DM:
(a) would not be able to exercise the right to challenge jurors (Crimes Act s 311(1)(b));
(b) would not be able to follow the course of proceedings in court, partly because of the general difficulties there would be in communicating any aspect of the proceedings to him given his deafness and the communication difficulties that have arisen from that disability, but more significantly because of the absence of any effective way to communicate to him relevant legal concepts that he almost certainly does not possess and is unlikely to acquire in any other way (Crimes Act s 311(1)(d)); and
(c) would not be able to give instructions to his lawyers (Crimes Act s 311(1)(f)).
Accordingly, I find DM unfit to plead to the current charges.
Is DM’s unfitness to plead likely to change?
Dr Rodrigues provided a useful list of recommendations for assisting DM in any court proceedings, and more generally for an exploration of the scope for expanding his ability to understand and respond to communications from others; she suggested, among other things, that “it appears that he has the potential to acquire sufficient basic signs in order to communicate and carry [on] a simple conversation”.
However, those recommendations were, as indicated, aimed more at assessing the scope for further improvement in DM’s functioning rather than at achieving any particular improvement in the short to medium term. There was no evidence put before me at the hearing in March this year that any attempt had been made to implement any of her recommendations.
Dr Kasinathan noted that DM’s unfitness to plead would not change in the foreseeable future “as it is due to impairments that have been present for decades”, and specifically that DM was unlikely to become fit to plead within the next 12 months.
I find, having regard to the source and nature of DM’s disordered or impaired mental processes and the apparent absence of any planned attempts to address his difficulties, that he is unlikely to become fit to plead within the next 12 months.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 12 October 2011
Counsel for the appellant: Mr J Jasinski
Solicitor for the appellant: Legal Aid ACT
Counsel for the respondent: Mr M Thomas
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 18 March 2011
Date of judgment: 12 October 2011
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