R v Fuller

[2020] NSWDC 649

District Court

New South Wales

Medium Neutral Citation:

R v Fuller [2020] NSWDC 649

Hearing dates:

28 October 2020

Decision date:

28 October 2020

Jurisdiction:

Criminal

Before:

Haesler DC DCJ

Decision:

I find Phillip Leslie Fuller unfit to be tried.

Catchwords:

CRIME — Indecent assault child under 10 – fitness to be tried

MENTAL HEALTH — Criminal proceedings- guilty plea in Local Court – committal for sentence – fitness to adhere to plea raised on a bona fide basis - fitness hearing - experts agree accused unfit to plead or be tried - need for judge to make independent determination - accused unfit to be tried or adhere to guilty pleas - referral to Mental Health Review Tribunal

Legislation Cited:

Bail Act 2013

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Mental Health (Forensic Proceedings) Act 2000

Cases Cited:

Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29

Hofer v R [2019] NSWCCA

Kesavarajah v The Queen (1994) 181 CLR 230

Ngatayi v The Queen (1980) 147 CLR 1

Presser v R [1958] VR 45

R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7

Category:

Principal judgment

Parties:

Phillip Leslie Fuller (the accused)
Director of Public Prosecutions

Representation:

Counsel:
Mr I Wallach (for the accused)
Mr M Fox, Crown Prosecutor

Solicitors:
Armstrong Legal (for the accused)
Director of Public Prosecutions NSW

File Number(s):

2019/00273415

Publication restriction:

Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900 there is to be no publication of the complainant's name or anything that may lead to her identification. Identifying information has been removed from this version of the judgment to comply with the statutes.

Judgment

Introduction

1. In June 2018 Police on the New South Wales (NSW) South Coast received a report that in 1981 or 1982 Mr Phillip Fuller had indecently assaulted a young girl. He was then aged 32, the girl was then 6 or 7. The incidents were said to have occurred while Fuller was babysitting the child at his home near Bateman’s Bay. Fuller was spoken to soon after but exercised his right to silence.

2. In September 2019 Fuller was arrested and charged with 4 counts of indecent assault on the complainant: s 61E(1) Crimes Act 1900, as it then was. He was granted bail.

3. On 9 March 2020, after Chapter 3 Criminal Procedure Act 1986 negotiations and charge certification, Fuller admitted his guilt in relation to two s 61E(1) Crimes Act counts. Those guilty pleas were accepted by a Magistrate in the Local Court and Fuller was committed to the District Court at Bega for sentence: s 97 Criminal Procedure Act 1986. It was also agreed that guilt would be admitted to two other counts and that they would be dealt with on a Form 1: s 32 Crimes (Sentencing Procedure) Act 1999.

4. The matter was listed at Bega Court in the June 2020 sittings. At a pre-sittings telephone call-over, before Judge Colefax SC, Fuller’s solicitor raised issues about Fuller’s fitness to be tried and capacity to participate in the sentence proceedings. The matter was adjourned to the October 2020 sittings of Bega District Court to determine those fitness issues.

5. Fuller attended Court today to answer his bail. He was however showing cold and flu like symptoms. COVID-19 protocols meant not he was allowed to enter the Court building. He was however able to sit, masked, on the verandah of Bega Court and be kept abreast of what was happening by his counsel, solicitor and wife. He could a hear what was happening in Court via an audio link from the Court to a mobile phone.

Mental Health (Criminal Proceedings) Act 2000

6. The question of a person’s unfitness to be tried for an offence may be raised by any party to the proceedings: s 5 Mental Health (Forensic Proceedings) Act 2000 (The Forensic Proceedings Act).

7. Although the term ‘unfitness to be tried’ is used what is really in issue is the accused’s capacity to participate in an informed and knowing way in the court proceedings; including both trial and sentence proceedings. An accused must have sufficient understanding to comprehend and understand the nature of the proceedings and act in his own interests either to admit the charge and plead guilty to it or make a proper defence to it. These are the minimum standards with which an accused in any criminal proceedings must comply.

8. So far as practicable the question of a person’s possible unfitness to be tried should be raised before the person is arraigned but it may be raised at any time during the course of the hearing of the proceedings in respect of the offence: 7(1) Forensic Proceedings Act. If, as here, an accused admits their guilt in the Local Court they would not normally be arraigned but they will be required to adhere to the pleas earlier entered when they come before the District Court for sentence. Although Fuller entered a plea of guilty in the Local Court he has not yet been arraigned, nor has he adhered to those pleas in this court, nor has he signed the Form 1 document.

9. The question of Fuller’s unfitness to participate in the District Court proceedings was raised in good faith: s 10(2) Forensic Proceedings Act. Judge Colefax SC accordingly determined that a fitness inquiry should be conducted before the hearing of the sentence proceedings: s 8(1) Forensic Proceedings Act.

10. The question of a person’s unfitness to be tried for an offence or adhere to the guilty pleas already entered is to be determined by a Judge alone: s 11 (1) Forensic Proceedings Act. The present sittings were the soonest practicable time, after Judge Colefax’s determination was made, when a hearing could be held in order to allow for that determination to be made: 10(1) Forensic Proceedings Act.

11. If an accused person is found unfit to be tried for an offence, the proceedings brought against the person in respect of the offence must not be recommenced or continued. Rather, the Court must:

1. refer the person to the Mental Health Review Tribunal (The Tribunal), and

2. adjourn the proceedings.

12. In doing so the Court can either:

1. grant the person bail in accordance with the Bail Act 2013;

2. remand the person in custody until the determination of the Tribunal has been given effect to; or

3. make any other order that the Court considers appropriate: s14(1) Forensic Proceedings Act.

13. After such a referral the Tribunal must, as soon as practicable after the person is so referred, determine whether, on the balance of probabilities, the person will, during the period of 12 months after the finding of unfitness, become fit to be tried for the offence: s16 (1) Forensic Proceedings Act. The Forensic Proceedings Act sets out other procedures that must then be followed.

The Fitness hearing

14. This morning I have received in draft form the proposed Crown Summary of Evidence in the sentence proceedings stood out of the list by Judge Colefax. I have received and now read the expert reports of Dr Christopher Cocks, a forensic psychiatrist engaged by by the accused and Dr Kerry Eagle, a forensic psychiatrist engaged by the Crown and a Report from Mr Sutton (2008), a Clinical Psychologist, who carried out cognition tests on Fuller in 2006.

15. I have been assisted by Mr Fox, Crown Prosecutor, who appears for the Director of Public Prosecutions, and Mr Wallach, Counsel for Fuller. There are, so far as counsel are concerned, no significant issues in dispute. They both take the view, which is shared by two forensic psychiatrists, that at present Fuller is unfit to be tried or adhere to the guilty pleas earlier entered.

16. The critical issues here involve the application of the tests to the evidence before the court; test which were first set out in Presser v R [1958] VR 45 at 48 and adopted by the High Court in Ngatayi v The Queen (1980) 147 CLR 1 and Kesavarajah v The Queen (1994) 181 CLR 230. The tests were recently summarised in Hofer v R [2019] NSWCCA at [64] to [70].

17. Mr Suttons Report of 30 March 2007 notes that Fuller’s ”current levels of cognitive performance (reasoning and memory) are similar to those with dementia. His present intellectual levels are extremely low…He has a Major Depressive Disorder.”

18. Dr Cocks in his report of 9 June 2020 sets out his opinion that Fuller meets the criteria for a Major Neurocognitive Disorder. This is a psychiatric illness consistent with evidence of Fuller’s significant cognitive decline that has been chronic in nature. Those deficits interfere with his independence in everyday activities.

19. He also meets the criteria for another psychiatric illness Major Depressive Disorder. This diagnosis is consistent with evidence Fuller has a pervasively low mood and has experienced chronic hopelessness and worthlessness; with non- specific suicidal ideation, impaired concentration, deteriorating sleep patterns and capacity for self-care. Without the care and devotion of his partner of many years he could not function adequately or care for himself.

20. Dr Cocks had available to him results of the psychological testing by Mr Sutton. The diagnoses reflect a history of depression, stress and illiteracy, due to developmental problems and the impact of a work reacted head injury in 2006. Cognition tests reveal deficits in short term memory, verbal fluency and visuospatial ability.

21. Dr Cocks concluded that , having had regard to the Presser criteria, Fuller is unfit to stand trial or enter a guilty plea: He lacks the capacity to retain information and weigh that information as part of a decision making process and is not capable of:

1. Understanding the charges against him.

2. Giving a consistent account of events from 1981-82.

3. Following legal proceedings.

4. Instructing a lawyer - he “goes along” with what his lawyer says rather than give instructions.

5. Understanding the Court proceedings.

22. Dr Eagle, in her report of 25 September 2020, noted that the results she obtained were consistent with Fuller’s genuine responses to questions regarding his psychological symptoms. She shared Dr Cock’s opinion that Fuller’s presentation is consistent with a Major Depressive Disorder. She also felt he may have a mild or major Neurocognitive Disorder or alternatively an Intellectual Disability. But she noted it was unclear the extent to which his cognitive deficits have been due to developmental processes, brain injury or his depressive illness. Regardless of cause a number of deficits exist and have resulted in a deterioration of his level of function over time resulting in reliance on his partner to achieve most aspects of daily living.

23. In her opinion after applying the Presser and Kesevarajah criteria, Fuller:

1. Appeared generally to understand the nature of his charges and his options to plead and was aware of the consequences of a guilty plea.

2. Did not appear to understand the specific facts he had entered guilty plea.

3. Understood in a general sense the nature of the court proceedings and the role of the judge.

4. Could understand the substantial effect of evidence against him but would have difficulties identifying any inconsistencies because of his poor concentration, slow processing speed and memory impairments.

5. Could not identify the role of a jury but was capable of learning that role in a basic sense.

6. Could, potentially, understand the course of proceedings with help but would have difficulty both; following proceedings and giving instructions regarding factual discrepancies.

7. Was able to instruct his lawyers to enter guilty pleas but the reliability of his instructions was suspect as he is not capable of understanding the specific allegations to which he was pleading guilty.

8. While he has the motivation to participate and maintain a plea of guilty his cognitive incapacity is impaired by his depressive illness

24. In Dr Eagle’s opinion, while Fuller has a sufficient capacity to understand the relevance and consequences of pleading guilty, until he can demonstrate an understanding of the specific allegations against him he would not presently have the capacity to plead to the charges. He may gain that capacity if his memory, concentration, motivation and outlook improve following treatment for his depressive illness.

Consideration

25. I must make my own determination as to whether Fuller is fit either; for trial or to participate in the proceedings with sufficient capacity to maintain the guilty pleas he entered in the Local Court.

26. The tests I must apply are directed to the minimum requirements for active and informed participation by an accused in criminal proceedings. So long as the accused can understand and follow the proceedings, in each of its facets, and can give appropriate instructions to plead to or present a proper defence to the charge, he is to be regarded as fit to be tried.

27. That other accused may have greater capacity or skills or a deeper appreciation of the factual and legal issues does not make a person unfit: R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7. That an accused has a mental illness or disorder does not of itself render them unfit: Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [26] – [27]. Focus must be placed on the individual accused’s capacity in a real sense to understand the proceedings. The test of capacity is not literally applied. In some cases, particularly where intricate legal questions arise, a complete understanding of the proceedings may require intelligence of quite a high order and as Barwick CJ noted in Ngatyi “It is notorious that many crimes are committed by persons of low intelligence.” But “it has never been thought that a person can escape trial simply by showing that he is of low intelligence.”

28. There is a point of difference between Dr Cocks and Dr Eagle. Although it is not material to the result today it may need to be resolved by the Tribunal; who will have to determine whether Fuller will become fit within the next 12 months.

29. Dr Cocks, after repeat clinical assessments, found that on current presentation and given Fuller’s longstanding cognitive deficits he was not capable of; understanding the charges against him, instructing a lawyer or understanding the court proceedings. Although Dr Cock’s did not express a direct opinion given the severity of the chronic symptoms he sets out in his Report, Fuller’s improvement for the better seems unlikely.

30. Dr Eagle, who only had the opportunity for a 2 hour AVL consultation, was more optimistic. In her opinion Fuller had some understanding of the legal process and had some capacity to engage with his lawyers but his depressive illness and pervasive negative outlook meant he satisfied the Presser criteria and could not adequately participate in a trial or sentencing hearing. With appropriate treatment of his depressive illness, she said, he had the potential to become fit and to enter a proper plea.

Determination

31. Given the material before me, I find that although guilty pleas were entered in the Local Court Fuller’s capacity to properly enter those pleas was compromised. Further, his longstanding cognitive deficits and depressive illness are such that he is not presently in a potion where he can either enter pleas to the present charges or be tried without unfairness or injustice.

32. Therefore, I find as a fact that Fuller is not at present able to adhere to the guilty pleas earlier entered or make a defence to or answer the charges. He is not able to do this through his lawyers by giving the necessary instructions or by letting them know what his version of the facts is. Should it become necessary, he does not have the capacity to tell the Court what his version of events is. I find that he does not have sufficient capacity to decide properly to adhere to his earlier guilty pleas or plead guilty if arraigned or decide, belatedly, to make a defence to the charges.

33. In those circumstances, I find that Mr Fuller is not fit to stand trial. As a consequence, these proceedings cannot be continued and I must refer this matter to the Tribunal for determination, pursuant to s 16 Forensic Provisions Act and I will make that order.

34. I must also make orders as to the next disposition of the matter. Fuller has been on bail. He has kept to the bail conditions imposed on him. That bail should continue.

Orders

35. I find Phillip Leslie Fuller unfit to be tried in relation to the four s 61E(1) Crimes Act 1900 counts before the District Court.

36. I refer this matter to the Mental Health Review Tribunal.

37. I direct the Registrar of the court to forward to the Tribunal:

1. A copy of this judgment.

2. The exhibits before me, including the 3 expert reports.

38. I fix this matter for call-over to the Chief Judge’s country call-over on Wednesday 24 March 2021 so that the Court can ascertain whether a decision has been made by the Tribunal and the position of the Director of Public Prosecutions; and list the matter accordingly.

39. I continue the accused’s bail:

1. Report to NSW Police at Batemans Bay Police Station each Friday once daily, between 12:01 AM and 11:59 PM.

2. Not to contact or attempt to contact by any means the victim in this matter.

I add these additional conditions:

3. Attend on the Mental Health Review Tribunal as directed

4. Obey any directions of the Tribunal

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Decision last updated: 28 October 2020