R v JG - [2014] ACTSC 120

R v JG
[2014] ACTSC 120 (7 May 2014)

CRIMINAL LAW – fitness to plead – s 311 Crimes Act 1900 (ACT) – no mental illness only mild intellectual disability – difference of psychiatric expert opinion – difference of approach – process structured around criteria in s 311 preferred

Crimes Act 1900 (ACT), ss 55(1), 61(1), 311, 312, 314

EX TEMPORE JUDGMENT

No. SCC 16 of 2014

Judge: Burns J
Supreme Court of the ACT

Date: 7 May 2014

IN THE SUPREME COURT OF THE     )          No. SCC 16 of 2014
  )
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN: REGINA

v

AND:JG

ORDER

Judge:Burns J
Date:7 May 2014
Place:Canberra

THE COURT ORDERS THAT:

The accused be found fit to plead.

The accused is currently before this court awaiting trial with respect to seven counts of committing an act of indecency on a person under the age of 10 years (s 61(1) Crimes Act 1900 (ACT)) and two counts of sexual intercourse with a person under the age of 10 years (s 55(1) Crimes Act 1900 (ACT)).
The question of his fitness to plead was raised before Refshauge J on 14 February 2014 at which time his Honour found that there was a real and substantial question about the accused’s fitness to plead and in accordance with the provisions of s 314(3) of the Crimes Act 1900 (ACT). His Honour reserved the question for investigation.
The matter has come before me today for determination on the question of fitness to plead. The criteria to be applied in determining the question before the Court are found in s 311(1) of the Crimes Act 1900 (ACT) which provides that:
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.
The provisions of s 312 of the Crimes Act 1900 (ACT) are also important to the present application. Those provisions provide that a person is presumed to be fit to plead and that the presumption is rebutted only if it is established that the person is unfit to plead.
The question of a person’s fitness to plead is a question of fact and is to be decided on the balance of probabilities. No party bears a burden of proof in relation to the question.
The evidence which has been placed before me today consists of a report from Dr John Kasinathan dated 8 October 2013. Dr Kasinathan is a consultant forensic psychiatrist. Secondly, there is a report from Dr Olav Nielssen dated 14 November 2013. Dr Nielssen is also a psychiatrist. Finally, a transcript of the record of interview between members of the Australian Federal Police and the accused which was conducted on 12 August 2013 was also tendered.
A comparison of the opinions of Dr Kasinathan and Dr Nielssen reveal disagreement essentially as to two of the criteria set out in s 311 of the Crimes Act 1900 (ACT).
With respect to the criterion of the accused being able to follow the course of the proceedings (s 311(1)(a) Crimes Act 1900 (ACT)), Dr Kasinathan expressed the view that the accused was able to follow the course of an intensive forensic psychiatric assessment. Dr Kasinathan was of the view that the accused should be able to follow and understand court proceedings in a general sense, particularly if his lawyer assisted him. The accused said to Dr Kasinathan in relation to this issue “I will be fine. I can hear everything and my lawyer can explain it to me.” Dr Nielssen formed the view that the accused would be unable to follow the proceedings or understand much of what was said in court.
The second criterion upon which the two psychiatrists disagreed is that being the person’s ability to give instructions to their lawyer (s 311(1)(f) Crimes Act 1900 (ACT)).
Dr Kasinathan expressed the opinion that the accused demonstrated sufficient capacity to be able to decide what defence to rely upon and gave rational reasons to justify that. Specifically, he understood that he would plead guilty because he agreed with the allegations made against him at the present time. On the other hand, Dr Nielssen expressed the opinion that based upon his assessment of the accused, the accused would be unable to provide reliable instructions to his legal representative on the basis of his understanding of legal advice and what was said in court.
In my opinion, the significant difference between the process engaged in by Dr Kasinathan and that engaged in by Dr Nielssen is found in the fact that Dr Kasinathan structured his process around the criteria which are found in s 311 of the Act and as such addressed his questioning based upon that structure. It appears that Dr Nielssen adopted a more global approach to the issues and did not structure his interview process around the criteria found in s 311.
In that regard, I prefer the evidence given by Dr Kasinathan with respect to his opinions regarding the two criteria to which I have referred and where there was disagreement between Dr Kasinathan and Dr Nielssen. In any event, even if I was unable to come to a conclusion as to which version was to be preferred, this is a case in which the presumption would apply so that the accused would, in any event, would be presumed to be fit to plead.
I note in that regard that there is no suggestion by either psychiatrist that the accused suffers from any mental illness. It is clear that he suffers from an intellectual disability. That intellectual disability was described as mild by Dr Kasinathan, a description which appears to have been accepted by Dr Nielssen in his report and which appears not to have been deviated from by Dr Nielssen until re-examination. I accept that, based upon the accused’s intellectual disability, he has difficulty understanding complex language or concepts, but I am satisfied that he can understand simple language and concepts, especially after they are explained to him.
I am satisfied that appropriate steps can be taken in the trial process to overcome the difficulties presented by the accused’s intellectual disability. Those steps include the taking of adjournments on a regular basis to enable him to consult with his legal advisors and be instructed as to what had occurred, and so that his legal advisors can satisfy themselves that he is following the proceedings. Additionally, the Court may insist upon counsel using short, simple questions during the trial process.
I am satisfied that the accused is fit to plead in relation to the charges before the court.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 4 June 2014

Counsel for the Crown:  Ms S Gul
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the Accused:  Mr J DeBruin
Solicitor for the Accused: Legal Aid ACT
Date of Hearing:  7 May 2014
Date of Judgment:  7 May 2014