R v Moar
[2012] SADC 47
•16 April 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MOAR
[2012] SADC 47
Ruling of His Honour Judge Chivell
16 April 2012
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED
Accused charged with five counts of indecent assault – whether accused fit to stand trial – accused suffering from a combination of mental and physical illness – medical examination, neuropsychological assessment and psychiatric examination – whether accused mentally unfit pursuant to s 269H(c) of the Criminal Law Consolidation Act - short-term memory deficits – whether accused able to follow the evidence or the course of the proceedings.
Held: accused mentally unfit to stand trial
Criminal Law Consolidation Act 1935 (SA) ss 70(1)(e), 269B, 269H, 269H(c), 269I, 269J, 269L, 269MA(3); Juries Act 1927 (SA) s 7, referred to.
R v Sexton (2000) 77 SASR 405; Ngatayi v R [1980] 147 CLR 1; R v Presser [1958] VR 45; Kesavarajah v R (1994) 181 CLR 230; R v Wahlstedt [2003] SADC 172; Eastman v R (2000) 203 CLR 1; R v Stevens [2010] SASCFC 1, considered.
R v MOAR
[2012] SADC 47
I have undertaken an investigation, pursuant to Division 3 of Part 8A of the Criminal Law Consolidation Act 1935 (“CLCA”), into the question of whether Mr Moar is fit to stand trial.
Mr Moar had originally elected to be tried by a Judge sitting without a jury pursuant to s 7 of the Juries Act 1927. He also elected, through his counsel, Mr Perrotta, that this investigation be conducted by a Judge sitting alone.[1]
[1] CLCA s 269B
The investigation has been conducted following an order made pursuant to CLCA, s 269J. By consent, the investigation has been conducted before any other issue to be tried.[2]
[2] CLCA s 269L
Legal Principles
Mr Moar’s mental fitness to stand trial is to be presumed unless it is established by this investigation that he is unfit to stand trial.[3]
[3] CLCA s 269I
The standard of proof to be applied is whether unfitness has been established on the balance of probabilities.[4]
[4] CLCA s 269MA(3)
The parties agree that the issue to be determined in this case is whether Mr Moar is unfit to stand trial because he is “unable … to follow the evidence or the course of the proceedings” because of an impairment in his mental processes.[5]
[5] CLCA s 269H(c)
In R v Sexton[6] Gray J said:
A lack of understanding can result from a disordered or impaired mental process. It can arise from many causes other than mental illness. A mental process can be disordered or impaired without there being an underlying illness. This is the rationale of the common law rule, that lack of comprehension, regardless of cause is the relevant criterion to determine unfitness for trial. Section 269H encapsulates the same criterion as the common law in regard to the determination of unfitness for trial.
[6] (2000) 77 SASR 405 at 414
In Ngatayi v R,[7] Gibbs, Mason and Wilson JJ said at p 9:
We respectfully agree with the view expressed by Smith J in R v Presser (1958) (sic) VR 45 at p 48 that the test needs to be applied "in a reasonable and commonsense fashion”.
[7] [1980] 147 CLR 1
Smith J went on to say that there are certain minimum standards which the accused needs to equal before he can be tried without unfairness and injustice, but added that the accused “need not have the mental capacity to make an able defence”.
Their Honours went on to say at p 9:
Similarly, in deciding whether an accused is capable of understanding the proceedings so as to be able to make a proper defence it is relevant that he is defended by counsel. If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand, the law. With the assistance of counsel he will usually be able to make a proper defence.
In that case, their Honours were considering the situation of an aboriginal person who was said to be incapable, for cultural reasons, of understanding the elements of the crime of murder. However, the principles enunciated by their Honours are of general application.
In Kesavarajah v R,[8] quoted by Rice DCJ in R v Wahlstedt,[9] the High Court approved the tests outlined by Smith J in Presser[10]:
In Reg v Presser, Smith J elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice. Those standards, which are based on the well-known explanation given by Alderson B to the jury in R v Pritchard (1836) 7 Car. & P., at p 304 [173 ER at p 135], require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.
[8] (1994) 181 CLR 230 at p 245
[9] [2003] SADC 172
[10] supra
These factors are consistent with the provisions of CLCA s 269H, referred to above.[11]
[11] Eastman v R (2000) 203 CLR 1 per Gaudron J at 22-23
I note also that in R v Stevens,[12] Sulan J pointed out that the complexity of the charges and the case against the accused is a relevant matter.
[12] [2010] SASCFC 1 at [52]
The Charges
Mr Moar is charged with five counts of indecent assault.[13]
[13] CLCA s 70(1)(e)
The events giving rise to the charges are alleged to have taken place:
Count 1 – between 1 January 1967 and 31 December 1968
Count 2 – between 1 January 1968 and 31 December 1968
Count 3 – between 1 January 1968 and 31 December 1969
Count 4 – between 1 January 1969 and 31 December 1969
Count 5 – between 1 January 1970 and 31 December 1970
Each of the five counts alleges an indecent assault upon a different victim. Each alleged victim was a student at a particular High School where Mr Moar was a schoolteacher between 1 January 1967 and 1 January 1971. Each alleged indecent assault is said to have occurred in similar circumstances at the school. Each alleged indecent assault is of a similar type involving the touching and fondling of the victim’s genitals.
I have not read any of the witness statements filed by the prosecution since the trial is to be conducted without a jury, but it does not appear that the charges are factually complex.
Clearly, the most difficult forensic issue to be confronted is the age of the allegations, more than 40 years. However, in the particular circumstances of this case, that does not present particular difficulties for Mr Moar – it will no doubt be argued that he is forensically disadvantaged by the delay, but that disadvantage is no worse by virtue of any of his health problems than it would be in the case of a healthy individual of the same age.
Mr Moar’s Health
In his written submissions, Mr Perrotta, counsel for Mr Moar, summarised Mr Moar’s health problems as follows:
·sleep apnoea syndrome;
·insulin-dependent diabetes;
·Parkinson’s disease;
·ischaemic heart disease;
·depression;
·restless leg syndrome;
·hypertension;
·glaucoma;
·haemochromotosis;
·lower back pain.
In his report[14] Dr Michael Brown says that Mr Moar takes long-term narcotic analgesia (Oxycontin), other analgesics, anti-depressants (Zoloft), as well as medication for hypertension, blood-thinning medication, sleeping tablets, insulin and Valium. He has been assessed as requiring high-level residential care, and is now a permanent resident in a nursing home near Gawler.
[14] Exhibit LRB1 to the affidavit of Mr Budden sworn 31 March 2011, part of Exhibit P1
Dr Brown states that Mr Moar’s medication will significantly impact on his ability to “perform at the trial and … competently give instructions during the course of it.”
In his later report,[15] Dr Brown adds that Mr Moar is also on medication for Parkinson’s disease which can cause tiredness and sleepiness.
[15] which is Exhibit LRB2 to the same affidavit
Dr Brown also reports that Mr Moar suffers urinary incontinence following prostrate surgery, and requires pads which need to be changed regularly.
Mr Moar also suffers gastro-oesophageal reflux disease, which is well-controlled with medication.
As to his back pain, Mr Moar had a spinal fusion operation in 2007. He continues to suffer severe pain. He takes Oxycontin, a narcotic analgesic, the side effects of which include constipation, tiredness and sleepiness.
Mr Moar is unable to walk more than 30 to 40 metres at a time. He uses a stick and, at times, a walking frame. He is unable to get in and out of bed without assistance.
The Issues
I agree with the observation of Ms Cairney, counsel for the Director of Public Prosecutions, that the following matters are not in dispute.
·Mr Moar suffers from an impairment of his short-term memory, in the moderate range of severity, the likely cause being cerebrovascular disease;
·Mr Moar’s long-term memory has not been adversely affected by any of his past or present medical problems;
·Mr Moar understands the allegations he faces;
·Mr Moar has a knowledge and understanding of court procedure and process, and the roles and functions of those involved in the process;
·Mr Moar has the ability to communicate, and to understand questions asked of him in a clinical interview, for a period of around one and a half hours.
The Medical Opinions
Mr Mark Reid is a very experienced clinical neuropsychologist. He has provided several reports concerning Mr Moar’s condition, and has given evidence on oath.
Mr Reid’s earliest report is dated 25 September 2009. He had seen Mr Moar shortly before that date.
At that stage, Mr Reid assessed Mr Moar had suffered only “very mild or subtle cognitive impairment”. He added:
On the basis of his presentation on this occasion and the results of my neuropsychological examination, I believe that from a cognitive perspective Mr Moar is fit to stand trial.”[16]
[16] Report, p 6
Mr Reid reviewed Mr Moar on 29 June 2010 and provided a further report dated 30 June 2010. He had repeated the tests performed previously to ascertain whether there had been any deterioration in Mr Moar’s condition. He reported that Mr Moar’s physical condition appeared to have deteriorated, adding weight to his early concerns about whether Mr Moar’s fatigue levels would interfere with his ability to stand trial. Subject to that, he said:
I believe that technically, from a cognitive or intellectual perspective, Mr Moar remains fit to stand trial.
Mr Reid recommended specialist medical assessment.
Mr Moar was examined by Dr Ludomyr Mykyta, a consultant geriatrician, on 9 August 2010. Dr Mykyta gave an extensive review of Mr Moar’s medical history. Dr Mykyta concluded:
In summary, I feel that even with the allowances suggested by Mark Reid …., Mr Moar would not be fit to stand trial. Mark Reid raises serious doubts about Mr Moar’s capacity in his second report. I believe that even if Mr Moar successfully survived the opening day of the trial, he would not be able to maintain this.[17]
[17] Report, p 5
Mr Reid reviewed Mr Moar on 11 May 2011. He noted the reports of Dr Mykyta and also that of Dr Zimmermann, which is not in evidence. After a third series of identical neuropsychological tests he noted that Mr Moar’s short-term memory deficit had deteriorated, from mild to moderate severity
Mr Reid also tested Mr Moar’s psychological state, and noted that his scores for depression and anxiety were now at the very extreme level (99th percentile) and his symptoms of “stress” were in the 98th percentile.
Mr. Reid suggests that the further deterioration in Mr Moar’s short-term memory:
may also reflect further cerebrovascular disease, namely cerebral ischaemic change, especially as he has now experienced a further loss of function on the left side of his body, most likely reflecting further right hemisphere pathology.[18]
[18] Report, p 6
As to whether Mr Moar could present himself appropriately in court, Mr Reid said that a combination of short-term memory deficit, slower information processing, further fatigue and stress would:
potentially lead to Mr Moar presenting in a more confused manner, potentially with worsening of his long-term memory and in general, less likely to present as a credible witness.
Mr Reid concluded:
Having given this considerable thought, I believe it is probably that he could meet these requirements (for fitness to stand trial) for short periods of time, but I now believe it is probable that he would not be able to sustain this capacity over extended periods of time, even with the assistance of various breaks and rest periods during court proceedings …. I would now concur with Dr Mykyta that currently Mr Moar would not be able to sustain his capacity to follow the course of proceedings beyond the opening day of a trial.”[19]
[19] Report, p 7-8
Mr Reid added that, in his opinion, Mr Moar’s condition was likely to deteriorate further rather than improve.
Dr Craig Raeside, a consultant forensic psychiatrist, assessed Mr Moar on 29 September 2011. He concluded that Mr Moar had a “Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood” which he explained was:
a reactive depressive and anxiety state secondary to significant stress which in this case appears to have been initiated by the breakdown of the marriage and perpetuated by the ongoing legal matters.[20]
[20] Report, p 10
Dr Raeside had not been provided with Mr Reid’s report of 12 May 2011. He said he concurred with Mr Reid’s earlier opinion that:
there is no cognitive or psychiatric impairment that would tender Mr Moar unfit to …. stand trial. However, I also acknowledge that Mr Moar’s capacity to do so, because of his various physical conditions (including the medication) would limit his ability to endure the rigors of a trial.[21]
[21] Report, p 11
When Mr Reid’s later report was drawn to his attention, Dr Raeside wrote a further report dated 22 October 2011, in which he said:
… it would appear to me that the concern relates to Mr Moar’s ability to follow the course of the proceedings at trial. The main problems relate to his concentration, attention, and persistence, which are primarily a function of his physical/mental condition, and to some extent depression and anxiety. It may be that the court considers the medical opinions alone sufficient to determine Mr Moar’s fitness. I do not think the psychiatric issues render him unfit.[22]
[22] Report, p 2-3
There is something of a “Catch-22” in Mr Moar’s situation. Dr Raeside noted that Mr Reid’s most recent assessment was performed shortly before he was due to stand trial, and that his worsening may have been due to “increased stress, anxiety and depressive symptoms which in turn aggravated memory and concentration”. However, the fact that a trial was not imminent may have accounted for Mr Moar’s better presentation when Dr Raeside saw him, but as Dr Raeside points out:
As a further trial approaches, it is quite likely that he might again deteriorate.[23]
[23] Report, p 2
Finally, in a report dated 26 January 2012, Dr Raeside modified his earlier statements as follows:
Therefore, whilst I would see no reasons to change my opinion that psychiatric illness (e.g. depression) would render Mr Moar unfit, I would defer to Mr Reid’s expertise in that underlying cognitive impairment would effectively render him unfit to stand trial, including marked difficulty following the course of proceedings due to short-term memory impairment and impaired information processing. Attempting a trial is likely to prove fruitless.[24]
[24] Report, p 2
Dr Elaine Skinner is a consultant psychiatrist and geriatrician. Dr Skinner saw Mr Moar on 7 July 2011. She reported that she was provided with “extensive court documents, which were mainly unread in view of time constraints”. She did not have Mr Reid’s report of 12 May 2011 before her. Dr Skinner performed some basic cognitive tests, but these were not as extensive as those performed by Mr Reid or, later, Mr Balfour. Dr Skinner concluded that Mr Moar
did not show evidence of any significant negative dysfunction on the two screening tests I performed
and concluded that Mr Moar was fit to plead, but recommended that
his physical concerns be adequately catered for in the court situation.[25]
[25] Report, p 2
I regard Dr Skinner’s report as having been limited by time constraints and inadequate background information. I therefore do not find that it detracts from the force of the opinions expressed by Mr Reid.
Mr Richard Balfour has also provided a report, and, like Mr Reid, gave evidence at the hearing.
Mr Balfour told me that he practices in the area of forensic neuropsychology. He has a Masters’ Degree in clinical psychology, but not in clinical neuropsychology. Mr Balfour is a very experienced and respected forensic psychologist. Mr Balfour saw Mr Moar on 22 February 2012 for a period of 3 hours, and conducted neuropsychological testing on 29 February 2012 for about 1 ½ hours. Mr Balfour was provided with a number of reports concerning Mr Moar, but not, unfortunately, that of Mr Reid dated 12 May 2011.
Mr Balfour’s test results were consistent with those of Mr Reid, particularly in the area of short-term memory, which he described as impaired in the moderate range of severity.[26]
[26] Report, p 18
Mr Balfour’s major conclusions were:
·notwithstanding the forensic disadvantage in dealing with offences allegedly having occurred more than 40 years ago, Mr Moar has an excellent autobiographical memory;
·his conceptual functioning is very good;
·he is not legally naïve;
·he was able to answer hundreds of Mr Balfour’s questions;
·his physical disabilities are significant, but with adequate measures taken to deal with them, which Mr Balfour prescribed, he should be able to cope with a trial.[27]
[27] Report, p 22
When asked to comment upon Mr Balfour’s report, Mr Reid said that he agreed with much of Mr Balfour’s opinion, but stated that Mr Balfour did not adequately deal with Mr Moar’s inability to process new information or argument or to create new memories. He also failed to account for the effects of stress and anxiety from the courtroom, as distinct from the clinical setting, upon Mr Moar’s short term memory. Mr Reid otherwise maintained his earlier opinion.
In evidence, Mr Balfour did acknowledge that Mr Moar’s ability to answer questions would be “modulated by the degree of stress and its environment”.[28]
[28] T 42
When he gave evidence, Mr Reid said that not only did Mr Balfour not put the same emphasis on stress, anxiety and Mr Moar’s co-morbid medical conditions, he did not regard Mr Moar’s short-term memory problems as being central to his ability to follow the course of proceedings in a trial, which he said, requires a “reasonably intact short-term memory”.[29]
[29] T 59
Conclusion
I accept the opinion of Mr Reid, supported as it is by the opinions of Dr Hall, the general practitioner, Dr Mykyta, the geriatrician, and Dr Raeside, the forensic psychiatrist.
In particular, I agree that the combination of Mr Moar’s cognitive deficit, his medical co-morbidities and the medications he must take to treat them, and his psychiatric issues result in a finding that it is more likely than not that Mr Moar would be unable to follow the evidence or the course of proceedings within the meaning of s 269H(c), CLCA, and that a finding should be made that Mr Moar is unfit to stand trial on the present charges on that basis.
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