R v Fairest, Fields & Toohey (Rulings - Fitness to be tried)
[2016] VSC 329
•1 July 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0119; S CR 2015 0120; S CR 2015 0121
Between:
| THE QUEEN | |
| and | |
| JAKE FAIREST, GEORGIA FIELDS & WARWICK TOOHEY | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | Mr Fairest: 13 & 27 May & 3 & 17 June 2016 | |
DATE OF RULINGS: | 1 July 2016 | |
CASE MAY BE CITED AS: | R v Fairest, Fields & Toohey (Rulings – Fitness to be tried) | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 329 | |
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CRIMINAL LAW – Murder – Deceased allegedly pushed off balcony and fell to his death – Fitness to be tried – Each accused (and deceased) deaf – Two accused also intellectually disabled – One accused also of borderline intelligence and autistic – Each accused found by (separate) jury to be unfit to stand trial – Whether unfitness temporary or permanent – Each accused unlikely to become fit within next 12 months – Special hearing to be held – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 6, 9(1), 11(4)(a) & 12(5).
APPEARANCES: | Counsel | Solicitors | |
| For the Crown | Ms K Argiropoulos (R v Fairest; R v Fields) | Office of Public Prosecutions | |
| For Mr Fairest | Mr D Gibson | Victoria Legal Aid | |
| For Ms Fields | Mr P Kilduff | Stary Norton Halphen Criminal Lawyers | |
| For Mr Toohey | Mr T Alexander | Paul Vale Criminal Law | |
HIS HONOUR:
Overview
At about 9:40 p.m. on Thursday 15 June 2015, Robert Wright fell to his death from the balcony of his second-floor apartment in Ringwood. It is alleged that he was pushed pursuant to a plan between his flatmate Warwick Toohey and two other friends Georgia Fields and Jake Fairest. All three have been charged jointly with murder.
The accused are profoundly deaf (as was Mr Wright). All communicate via Auslan, which is the sign language commonly used by the deaf community in Australia. Mr Toohey and Mr Fairest are also intellectually disabled. Ms Fields is also of very low intellect and suffers from atypical autism.
After the indictment was filed in this Court, a real and substantial question was raised as to the fitness of each accused to stand trial. Accordingly, in each case, I reserved the question of the fitness of the accused to stand trial for investigation under Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”).[1]
[1] See s 9(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Following an investigation before a separate jury in each case, consistently with the submissions of the parties, all three accused were found to be unfit to stand trial.
Further, I have determined, on the balance of probabilities, that none of the accused is likely to become fit to stand trial within the next 12 months.[2]
[2] See s 11(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
As a result, I will direct that the Court proceed to hold a special hearing under Part 3 of the Act within three months.[3]
[3] See s 12(5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
My reasons for those conclusions follow.[4]
[4] While each case is separate, it is convenient to give my reasons for those conclusions in the one judgment.
Jake Fairest
Investigation before jury
The jury empanelled upon the investigation into Mr Fairest’s fitness to stand trial heard evidence from psychologists Professor Michael Daffern and Professor James Ogloff. Both experts had examined Mr Fairest and had seen the report of neuropsychologist Dr Lindsay Vowels.
Following testing, Dr Vowels concluded that Mr Fairest’s full scale IQ is only 59, placing him in the intellectually disabled range and in the bottom 0.3 per cent of intellectual ability among adults. Dr Vowels also found that Mr Fairest has a very poor memory, and that he suffers deficits in abstract reasoning, executive functioning, receptive and expressive language and planning. Mr Fairest is aged 27. At the age of seven, he suffered a brain tumour which required two surgical procedures to remove it, and then extensive chemotherapy, which had the effect of damaging his central nervous system and his brain and its functioning. He was deaf from the age of two, but it is clear that the brain tumour and the subsequent treatment of it are the causes of his intellectual disability.
Both Professor Daffern and Professor Ogloff gave evidence that, as a result of his intellectual disability, Mr Fairest is unable to meet five of the seven standards for fitness to stand trial set out in the Act.[5] In particular, while both experts considered that Mr Fairest has a limited but nevertheless sufficient ability to understand the nature of the charge, they were also of the opinion that he is unable to exercise the right to challenge jurors, unable to understand the nature of the trial, unable to follow the course of the trial, unable to understand the substantial effect of the evidence that may be given in support of the prosecution and unable to give instructions to his lawyers.[6] Professor Ogloff was also of the view that Mr Fairest is unable to enter a plea to the charge[7] whereas Professor Daffern considered he is just able to do so.
[5] See s 6(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[6] See s 6(1)(a), (b), (c), (d), (e) and (f) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[7] See s 6(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Ms Argiropoulos, who appeared for the Director, and Mr Gibson, who appeared for Mr Fairest, both submitted to the jury that they should return a verdict of unfit to stand trial. That is the verdict the jury returned. Given the evidence, the joint position of the parties and the requirement that a jury need be satisfied only on the balance of probabilities that the accused is unable to meet only one of the standards of fitness listed in the Act to be found to be unfit,[8] the jury’s verdict was all but inevitable.
Not likely to become fit within next 12 months
[8] It is sometimes said that there are two separate criteria in s 6(1)(b) of the Act. That also explains why it is sometimes said that there are seven (not six) criteria in total in s 6(1) – i.e. the two in s 6(1)(b) plus the five in s 6(1)(a), (c), (d), (e) and (f). It might be said that, at least upon a literal construction of the provision, an inability to meet one of the two criteria in s 6(1)(b) but not the other (nor any of the other five criteria) could not lead to a verdict that the accused is unfit to stand trial. In other words, the argument would be that a person is unfit pursuant to s 6(1)(b) only if he or she is unable to enter a plea to the charge and unable exercise the right to challenge jurors. While I express no concluded view on the matter – because it was not the subject of argument before me and, in any event, it is hard to imagine that the adoption of this literal construction could have made any difference in this case or in the cases of Ms Fields and Mr Toohey – it strikes me that a person cannot sensibly be said to be fit to stand trial if he or she is unable to meet one of the standards in s 6(1)(b) but is able to meet the other.
Section 11(4)(a) of the Act provides that, if a jury finds that the accused is unfit to stand trial, the judge must determine, by reference to any relevant evidence and on the balance of probabilities, whether or not the accused is likely to become fit to stand trial within the next 12 months.
In his evidence before the jury, Professor Daffern said that there is no evidence that Mr Fairest’s intellectual disability will improve over time. Rather, it is likely that his disability is permanent. Professor Ogloff gave similar evidence. He pointed out that testing in 2001, 2003, 2007 and in 2015 revealed that there had been no improvement in Mr Fairest’s condition over time. In Professor Ogloff’s view, the nature of the brain injury means that it is most unlikely that there would be any relevant improvement in the long run, and certainly none within the next 12 months.
Both Ms Argiropoulos and Mr Gibson submitted that, based on that evidence, I should be satisfied, on the balance of probabilities, that Mr Fairest is not likely to become fit to stand trial within the next 12 months.
I accept the evidence of Professor Daffern and Professor Ogloff and the submissions of counsel. In my view, Mr Fairest is not likely to become fit to stand trial within the next 12 months.
Georgia Fields
Investigation before jury
The jury empanelled upon the investigation into Ms Fields’ fitness to stand trial heard evidence from three experts who had examined her – namely, psychologist Dr Dion Gee, neuropsychologist Dr Peter Dowling and psychiatrist Dr Lester Walton.
Following testing, Dr Dowling concluded that Ms Fields’ general intellectual ability falls within the borderline range. Her verbal skills are in the intellectually disabled range. She has very limited knowledge of facts and word meanings and displays limitations in reasoning and executive processes. Ms Fields has just turned 20. She was born deaf as a result of a central nervous system abnormality. She also suffers from a pervasive developmental disorder (atypical autism). As a result, she has a history of strange behaviours, such as having conversations with herself in sign language, communicating with objects and having specific obsessions with numbers and trains. She does not have a normal understanding of the world around her, particularly with respect to human behaviour.
As I understood their evidence, both Dr Gee and Dr Dowling were of the opinion that, as a result of her disordered or impaired mental processes, Ms Fields was unable to meet any of the seven standards for fitness to stand trial. In particular, they were of the opinion that she was unable to understand the nature of the charge, unable to enter a plea to the charge, unable to exercise the right to challenge jurors, unable to understand the nature of the trial, unable to follow the course of the trial, unable to understand the substantial effect of the evidence that may be given in support of the prosecution and unable to give instructions to her lawyers.
Dr Walton took a different view. He considered Ms Fields was able to meet all seven standards. That said, he considered that it was “line ball” as to whether she was unable to follow the course of a trial, but ultimately came to the view that she “only just passed muster” on this criterion.
Both Ms Argiropoulos, who appeared for the Director, and Mr Kilduff, who appeared for Ms Fields, submitted to the jury that they should return a verdict of unfit to stand trial. Ms Argiropoulos submitted that the jury should act on the evidence of Dr Gee and Dr Dowling. As for Dr Walton’s evidence, she submitted that, when analysed carefully, it became apparent that his concerns about Ms Fields’ ability to follow the course of a trial were similar to those of Dr Gee and Dr Dowling; and that, having regard to the standard of proof, the jury should be satisfied that, at the very least, she was unable to follow the course of a trial. Mr Kilduff adopted those submissions. He also pointed to Dr Walton’s evidence to the effect that he had doubts about Ms Fields’ ability to understand the nature of a the trial and to follow the course of a trial.
While the fact that the evidence was not all one way made the jury’s decision less predictable, it was nevertheless unsurprising that they found Ms Fields unfit to stand trial.
Not likely to become fit within next 12 months
I turn now to the question whether or not Ms Fields is likely to become fit to stand trial within the next 12 months.
Following the jury’s verdict, I heard further evidence from Dr Gee and Dr Dowling on this issue. In short, Dr Gee was of the view that, with education and the capacity of the Court to adapt its processes, Ms Fields was capable of learning in such a way that she could become fit to stand trial. However, he could not say what particular form any such education process might take or how long it would take for her to become fit.
I also had the benefit of Dr Walton’s evidence before the jury and in his report, in both of which he described Ms Fields as educable. Given his view about present fitness, however, he was not asked for his opinions about future fitness, such as what form an education programme might take or how long it would take before any benefits were seen.
Dr Dowling agreed that Ms Fields is capable of learning new information. Thus, in his view, she may be able to gain a satisfactory understanding of the nature of the charge, the nature of the trial, her right to enter a plea to the charge and (perhaps) her right to challenge jurors. That said, he was also of the view that her intellectual deficits and autism are always going to make the meaningful exercise of the right to challenge jurors quite problematic, irrespective of attempts at education. Further, Dr Dowling considered that the provision of educational sessions is unlikely to address her inability to follow the course of a trial or to understand the substantial effect of any evidence that may be given in support of the prosecution. This is because those present inabilities result from the fundamental limitations in her verbal reasoning ability and understanding of the social world, which in turn result from her permanently disordered or impaired mental processes. Dr Dowling considered that there might be a gradual improvement in her functioning over the much longer term, but not within the next 12 months.
Dr Dowling also agreed that, unless Ms Fields were cooperative with any education process, she would not improve in any event. As I understood Mr Kilduff, there are doubts about whether Ms Fields would cooperate willingly in any compulsory education process.
I adjourned the hearing in order to allow the Director the opportunity to investigate precisely what educational programmes might be made available to Ms Fields. Upon the return of the matter, Ms Argiropoulos advised that no further evidence would be led.
Counsel raised interesting questions concerning whether, if a judge thought an accused would be likely to become fit within the 12 months but only if a particular education programme were completed within that time, s 12(2)(d) of the Act might give the Court power to direct an accused to undertake such a programme or an organization to provide such services. While, for reasons I shall give shortly, it is unnecessary to determine this question, I suspect that s 12(2)(d) does not give such a power. Rather, the exercise of the power to “make any other order the judge thinks appropriate” appears to be contingent upon the judge first determining that the accused is likely to become fit within the next 12 months. Further, even if such a power exists, there would be serious questions about whether such a power could be exercised in practice and about whether there would be any point in seeking to do so if the accused were not willing to cooperate in an education programme.
As I understood her, Ms Argiropoulos submitted that, while there was uncertainty as to what type of education programmes might be available, as to how long they may take to have effect and as to whether Ms Fields would engage in them anyway, nevertheless it was open to conclude that Ms Fields would become fit within the next 12 months. Mr Kilduff submitted that I should act on the evidence of Dr Dowling, to the effect that it is not likely that she will become fit on all criteria within 12 months, irrespective of the education programmes available.
Both counsel accepted, correctly in my view, that, if the accused is likely to become fit within 12 months on some criteria but not on all, then the conclusion must be that she is not likely to become fit.
I am satisfied, principally on the basis of the evidence of Dr Dowling, that Ms Fields is not likely to become fit to stand trial within the next 12 months, no matter what education programme she might engage in – and there is none on the horizon in any event. In particular, I accept his opinion that the nature of Ms Fields’ afflictions are such that education over the next 12 months is unlikely to reverse her present inabilities to follow the course of the trial and to understand the substantial effect of any evidence that may be given in support of the prosecution. While Dr Gee was more optimistic about her ability to learn sufficiently to render her fit to stand trial, he could not specify the types of programme that might be offered and could not say how long any such programme might take to be effective. In those circumstances, I consider that it would be against the evidence to conclude that Ms Fields is likely to become fit within the next 12 months.
Warwick Toohey
Investigation before first jury
The investigation into Mr Toohey’s fitness to stand trial commenced before a jury that was ultimately discharged, and then a second jury was empanelled.
Before the first jury, Ms Williams QC, who appeared with Ms Argiropoulos for the Director, opened the matter by indicating that it would be submitted that Mr Toohey is fit to stand trial, and that she would be calling evidence from psychologist Chris Drake and neuropsychologist Dr Vowels in support of that case. Mr Alexander, who appeared for Mr Toohey, responded by indicating that he would be submitting that his client is unfit to stand trial, and that he would be calling evidence from psychologist Jeffrey Cummins in support of that case.
Dr Vowels gave evidence that her testing revealed that Mr Toohey’s full scale IQ is only 61, placing him in the intellectually disabled range and in the bottom 0.5 per cent of intellectual ability among adults. (When tested in 2002, his IQ was estimated at 55, which Dr Vowels considered to be consistent with the recent results.) In her view, Mr Toohey is unable to cope with tasks of divided attention; has poor memory; repeatedly makes the same errors; can think in only a very concrete fashion; finds abstract reasoning very difficult; and has poor executive functioning. He reads at only a Grade 1 level. Dr Vowels considered that Mr Toohey did not understand most of the questions he was asked and that apparently plausible answers did not reflect a true appreciation of what he understood or to what he was responding. It seems that his intellectual disability resulted from serious meningitis suffered as an infant. Mr Toohey is now aged 29. While Mr Drake did not conduct any formal testing, he considered that Mr Toohey presents as intellectually disabled.
Despite Mr Toohey’s extremely low level of intellectual functioning, both Mr Drake and Dr Vowels opined that he is fit to stand trial. Mr Drake said that, while Mr Toohey’s initial responses to questions indicated otherwise, further probing produced spontaneous responses that demonstrated sufficient understanding and capacity to meet all of the standards of fitness set out in the Act. While Mr Drake expressed some concern about Mr Toohey’s capacity to follow the course of a trial, he still regarded him as able to do so, particularly if compensatory strategies were employed, such as his counsel explaining important material to him during breaks in proceedings.
Dr Vowels opined that, while Mr Toohey’s intellectual disability, communication difficulties and restricted education rendered him less able than those without such afflictions to meet the standards in the Act, he could not be considered unfit to stand trial if he were given extra support and if modifications were made to the information supplied to him. On the other hand, Dr Vowels opined that Mr Toohey would not have been understanding the evidence given by her and Mr Drake thus far, because it was pitched at a high level of technicality and involved, amongst other things, conditional concepts. Further, without assistance, he could not cope with and remember the broad sense of evidence given five hours a day over three weeks, which was the expected duration of the proposed trial. Giving him transcript of the evidence would be of no assistance, given his very limited reading ability. A summary in dot-point form would be of more assistance. If something occurred to him during a trial, it is unlikely he could hold it in his mind for very long, and he could write down only a word or two to help him remember, rather than any more complex a note.
At the conclusion of Dr Vowels’ evidence, Mr Alexander requested that the matter be adjourned until the next day so that, before giving his evidence, Mr Cummins might interview Mr Toohey again now that he had heard the evidence of Mr Drake and Dr Vowels. Ms Williams agreed with that course. So did I.
The next morning, Mr Cummins interviewed Mr Toohey with the aid of the two Auslan interpreters who had been interpreting in the Court. With the consent of Mr Toohey, the interview was recorded. A concern about Mr Toohey’s level of fluency with Auslan was raised by the interpreters with Mr Cummins, and in turn with Mr Alexander, who in turn raised it with counsel for the Director and then the Court. In the end, I determined that a voir dire should be held on the new information gleaned from Mr Cummins’ further interview of Mr Toohey and on the interpreters’ concerns.
Kim Saxton, one of the Auslan interpreters, made several points in her evidence, including the following. First, she said that many concepts in English are difficult to express in Auslan, as it is a relatively simple language. For example, some concepts have to spelled out, by finger-spelling, as there is no Auslan sign for them. Secondly, these difficulties are rendered greater in an interview setting, when interpreting from English into Auslan and then from Auslan back into English, particularly with a person of Mr Toohey’s intellectual and linguistic limitations. Thirdly, in Ms Saxton’s opinion, Mr Toohey’s facility with Auslan was “minimal” and was not “a normal use of language”. His vocabulary was poor and his responses were “very difficult to put into a coherent sentence … because a lot of grammatical structures were missing”. They were also “disjointed” and “incoherent” at times. Fourthly, in Ms Saxton’s view, all of this led to uncertainty as to what Mr Toohey was understanding and attempting to convey in response.
Mr Cummins then gave evidence on the voir dire. He played the recording of the interview. He asked Mr Toohey a series of prepared questions, which were conveyed to him in Auslan and to which he attempted to respond in Auslan. Mr Cummins opined that the interpreted responses indicated that Mr Toohey had understood hardly any of the previous few days of the investigation; that his comprehension and communication skills are extremely poor; and that he is unable to give meaningful and reliable instructions. In his view, this provided further evidence that Mr Toohey would be unable to follow the course of a trial. Mr Cummins also said that his discussions with the interpreters following the interview revealed that they were of the view that Mr Toohey’s communication and comprehension difficulties are most probably related to his intellectual disability. He said that, in his opinion and having regard to the views of the interpreters, there is uncertainty as to what Mr Toohey is comprehending and saying in response.
I should add that, from a layperson’s perspective, I found Mr Toohey’s responses in the interview and Ms Saxton’s concerns troubling. Mr Toohey appeared to have very little appreciation of what had happened in the last few days in Court, and little understanding of what he was being asked.
Following that evidence and a break to take instructions, Ms Williams advised the Court that, in light of the new evidence from Ms Saxton and Mr Cummins, the Director’s position had altered and was now that Mr Toohey is unfit to stand trial. Previously, it had been understood by the Director that Mr Toohey was fluent in Auslan, both in understanding that language and in his use of it. As Ms Williams explained, the new evidence, to which neither Mr Drake nor Dr Vowels had been privy, presented quite a different picture.
Ms Williams submitted that the preferable course now was to discharge the jury and recommence before a fresh jury with evidence from Mr Cummins only and with both parties supporting the same verdict from the outset. Initially, I was of the view that the investigation should continue before the first jury. The jury simply could be told that, in light of new evidence, the Director had changed his position; the new evidence could be led; and the parties could make their joint submissions. Having reflected on the matter, however, I concluded that Ms Williams was correct. I was persuaded by her submissions that having a new jury was more likely to produce the verdict that both parties considered the appropriate one in light of the evidence, and therefore more likely to be conducive to the proper administration of justice, and also would be a “neater” and quicker process. Accordingly, I discharged the jury without verdict and had a new jury empanelled upon the investigation.
Investigation before second jury
The second jury then heard evidence from Mr Cummins to the effect that, as a result of his intellectual disability, Mr Toohey was unable to meet any of the standards for fitness to stand trial set out in the Act. That evidence included a summary of what had transpired in the recent interview between Mr Toohey and Mr Cummins and the views of the Auslan interpreters, as well the results of Dr Vowel’s testing.
Both parties submitted to the jury that they should act on the evidence of Mr Cummins and return a verdict of unfit to stand trial. Ms Williams emphasized that Mr Toohey is unable to follow the course of a trial – not only because of his intellectual disability but also because of the limitations in his ability to understand and communicate in Auslan. Mr Alexander adopted Ms Williams’ submissions. Again, unsurprisingly, the verdict the jury returned was in accordance with the parties’ submissions and the only evidence before them.
Not likely to become fit within next 12 months
I turn now to the question whether or not Mr Toohey is likely to become fit to stand trial within the next 12 months.
In one of his reports before the Court, Mr Cummins opines that, “because of his intellectual disability including significant problems with executive functioning and significant problems with insight, it is likely [Mr Toohey’s] current lack of fitness to stand trial will be a permanent characteristic of this man”.
Both Ms Williams and Mr Alexander submitted that, based on that evidence, I should be satisfied, on the balance of probabilities, that Mr Toohey is not likely to become fit to stand trial within the next 12 months.
I accept the opinion of Mr Cummins and the submissions of counsel. In my view, Mr Toohey is not likely to become fit to stand trial within the next 12 months.
Direction for special hearing
Section 12(5) of the Act provides that, if a jury finds that the accused is not fit to stand trial and the judge determines that the accused is not likely to become fit within the next 12 months, the Court must proceed to hold a special hearing under Part 3 within three months.
Accordingly, given the juries’ verdicts and my findings, I will direct that the Court proceed to hold a special hearing for each accused under Part 3 of the Act within three months.
The parties have indicated that it is likely that there will be a joint special hearing for all three accused. I shall hear counsel on the particular date for the commencement of such a hearing.
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