R v Dolan - [2005] SADC 98

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DOLAN
Ruling of His Honour Judge David
5 August 2005
CRIMINAL LAW
Fitness to plead
Criminal Law Consolidation Act 1935 s269H, referred to.
R v Sexton 77 SASR 495; R v Presser 1958 VR 45, applied.

R v DOLAN
[2005] SADC 98

An investigation has been taken pursuant to Division 3 of Part 8A of the Criminal Law Consolidation Act 1935 (CLCA) to ascertain whether the defendant is unfit to stand trial.
Ms S Spence, defence counsel, called one witness namely Dr Jane Hecker who was of the opinion that pursuant to the criteria set out under Section 269H of the above Act the defendant was unfit to stand trial.
Ms A Trengove for the DPP called two psychiatrists Drs Koopowitz and Branson and one clinical psychologist Mr Mark Reid. All three were of the opinion that the defendant was fit to stand trial.
The defendant is charged with 16 counts which relate to sexual offences allegedly committed upon two under aged girls. Dates range from March 1983 to November 1992. It is alleged that when these events happened the defendant was in a defacto relationship with the mother of both of the complainants.
Law
I set out Section 269H of the Criminal Law Consolidation Act:-
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.
If any of those three criteria are made out then the defendant would be unfit to plead. I remind myself that the defendant’s fitness to stand trial is to be determined at the date of the trial and I also remind myself that Section 269H “encapsulates the same criteria as the common law in regard to the determination of unfitness for trial” R v Sexton 77 SASR 405 at page 414, Gray J. The common law test for fitness to stand trial or fitness to plead is set out in R v Presser 1958 VR 45 at page 48:-
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.
Physical and Mental Condition of the Defendant
Dr Jane Hecker was called by the defendant and gave evidence as to his physical and mental condition. Dr Hecker is a physician specifically trained as a geriatrician with special interest in matters of memory disorders and dementia. On examining the defendant she found that physically he had severe rheumatoid arthritis and was continually in pain. He was taking a course of Methadone to relieve pain. He was drowsy because of this medication. She gave evidence that she also performed a cognitive assessment of the defendant and did this by subjecting him to a number of tests. The upshot of those tests was that she was of the opinion that he has a short term memory problem and she believes that the basis for that short term memory problem is due either to his abuse of alcohol or drugs over a significant period of time or because of vascular problems. She was also of the opinion that the vascular problems or the abuse of alcohol caused impairment of his executive function. According to Dr Hecker examples of the manifestation of an impairment of executive functioning would be that he would have an inability during the trial to follow what’s going on, to give appropriate weight to various pieces of information and to actually understand the consequences of things and be able to give instructions.
So according to Dr Hecker there were two separate problems:-
a. short term memory loss; and,
b. an impairment of executive function.
She then gave her opinion that she considered that these problems would mean that “he is likely to have an impaired ability to understand the nature of proceedings and/or follow the evidence through the course of proceedings. I do not believe that there are any strategies which are likely to make a significant impact on his fitness to stand trial.” (Exhibit D3)
In other words Section 269H paragraph (c) would not have been made out and therefore he would be unfit to stand trial.
All three witness called by the DPP agreed with Dr Hecker that there was an impairment of executive function and could not disagree that there may be short term memory loss. However all three are of the opinion that these problems were in the mild category and would not render the defendant unfit to stand trial pursuant to the relevant criteria.
Dr Koopowitz, a most experienced psychiatrist, was critical of the tests used by Dr Hecker to arrive at her conclusions and was of the opinion that such tests had only limited use. He gave evidence that the only way to properly assess the defendant’s condition was by clinical observation. He was of the view that the problems that the defendant may have because of his condition can be catered for by the Court process. He was of the view that the defendant may have difficulty in following the evidence because at some stage he may become too sedated from his painkilling tablets which he takes for his severe rheumatoid arthritis and sometimes he may be distracted by the pain. He was also of the view that he does suffer from mild executive dysfunction and from time to time he might lose track of certain lines of argument, however, that can easily be catered for by the assistance of his counsel and by the generous use of adjournments. He was of the view there was no reason why he would not be able to follow the nature of the Court proceedings.
Dr Christopher Branson also conceded that the defendant has some mild cognitive deficits in regard to frontal lobe functions. However he is of the opinion that nevertheless he is currently fit to stand trial and the only problem during the course of the trial would be the appropriate administration of his medication and the Court process should be able to cater for that.
Mr Mark Reid is a psychologist who specialises in forensic and neuropsychology. He subjected the defendant to a number of neuropsychological examinations. His clinical assessment led him to the opinion that he is fit to stand trial pursuant to the requirements of Section 269H of the Criminal Law Consolidation Act. In his report of the 29^th November 2004 (Exhibit D8) he said the following:-
Currently Mr Dolan is cooperative, able to provide a detailed history of various events including his own opinion regarding the alleged offences. There was no evidence of any psychotic thinking on this occasion and from the neuropsychological perspective, I believe there are only mild cognitive deficits evidence, related primarily to some slowed information processing speed and difficulty with the efficient retrieval of learned or known information. The cause of this is somewhat speculative, but this is consistent with some mild impairment in those functions mediated by the frontal lobes of the brain. A possible cause of this could be his alcohol history, but I was unable to obtain any accurate information about what this entailed.
Specific questioning of Mr. Dolan with regard to issues surrounding fitness to plead revealed that he has a reasonable knowledge of the role of his Lawyer, the role of the Prosecutor and he described how this is an adversarial process. He went on to describe the role of a Jury in determining guilt or otherwise and he also described the role of a Judge.
Although Mr. Dolan is somewhat slow and deliberate in his responses to questions put to him, I believe that he is in a mental state such that he can instruct his Solicitor and can follow the arguments raised in a Court of Law. Some allowance may need to be made for his slightly slowed comprehension and the slowness in his ability to effectively choose words and formulate an answer.
Overall I would agree with the opinion of Dr. Branson that Mr. Dolan should now be considered fit to stand trial. I believe that he meets these requirements as per Section 269 of the Criminal Law Consolidation Act 1935.
It appears as though there is no dispute between the four expert witnesses who were called that the defendant suffers from a clear physical ailment namely painful rheumatoid arthritis for which he has to take medication. There appears no doubt that the medication can have the effect of making him drowsy and there also appears to be no doubt that he is suffering from a cognitive impairment.
The three witnesses called by the DPP clearly say that on their clinical examination that cognitive impairment is not so great as to render him unfit to stand trial. Dr Hecker disagrees. Nevertheless I find their evidence preferable to that of Dr Hecker’s opinion. I find their clinical examination combined with their experience in dealing with matters of unfitness to plead persuades me that at the very least it has not been proved on the balance of probabilities that the defendant is unfit to stand trial. Although cases such as the present have obvious complications the defendant’s knowledge as to whether he committed these offences or not is a clearly straightforward one. Although there will be difficulty in him presenting his defence because of the period of time that has elapsed since these offences are alleged to have happened nevertheless that is a difficulty which even a person without the defendant’s physical and mental complications would face.
I agree with all of the expert witnesses that the trial will have to be handled carefully in the sense that allowances will have to be made for the defendant’s physical and cognitive difficulties. But I agree and accept the evidence that these difficulties can be catered for by both the Court process and the assistance of competent counsel. I so rule.