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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v DM

Details

AGLC: R v DM [2011] ACTSC 167
Case: [2011] ACTSC 167
Decision Date

CaseChat Overview and Summary

The case of R v DM [2011] ACTSC 167, heard by Penfold J in the Supreme Court of the Australian Capital Territory, involves a defendant, DM, who has been charged with five counts of acts of indecency on a young relative, allegedly committed between 8 May 1997 and 30 June 2000. A critical issue in this case is DM's fitness to plead. The court was required to decide whether DM's profound deafness and intellectual disability, in the absence of any mental illness, rendered him unfit to plead under s 311 of the Crimes Act 1900 (ACT).

Section 311(1) of the Crimes Act 1900 (ACT) sets out the criteria for unfitness to plead, which includes the inability to understand the nature of the charge, enter a plea, understand the proceeding, follow the course of the proceeding, understand the effect of evidence, or give instructions to one’s lawyer due to disordered or impaired mental processes. The court had to determine whether DM's disabilities fit within these criteria. The legislative history and relevant case law suggest that unfitness to plead can be due to factors other than mental illness, including intellectual disability and physical disabilities such as deafness.

The court examined expert assessments by Dr Rodrigues and Dr Kasinathan, who concluded that DM's intellectual disability, compounded by his profound deafness, severely limits his ability to engage with the trial processes. DM's intellectual disability was assessed to be at the “below average” range, with an IQ of 70 to 79, further compromised by a lack of stimulation and communication difficulties due to his deafness. The assessments indicated that DM's comprehension and ability to follow legal proceedings were significantly impaired. Based on these assessments and the common law principle that unfitness to plead can arise from factors other than mental illness, the court found that DM's mental processes are disordered or impaired to the extent that he cannot understand the charges against him, follow the court proceedings, or give instructions to his lawyers.

Therefore, the court concluded that DM is unfit to plead to the charges of acts of indecency, and it is unlikely that his fitness to plead will improve within the next 12 months.

Orders