R v Monaghan (No 2)
[2011] ACTSC 62
•14 April 2011
R v JONATHON MONAGHAN (NO 2)
[2011] ACTSC 62 (14 April 2011)
CRIMINAL LAW – jurisdiction practice and procedure – accused unfit to plead or becoming incapable during trial – accused found unfit to plead – question of whether likely to become fit to plead within twelve months – relevant principles and factors – finding revisited – accused fit to plead.
CRIMINAL LAW – jurisdiction practice and procedure – accused unfit to plead or becoming incapable during trial – intellectual disability – need for specific assistance to participate in the trial adequately – fit if assistance provided – requirement to provide such assistance.
Criminal Code 2002 (ACT), ss 310, 318
Crimes Act 1900 (ACT), ss 311, 315A, 316
Mental Health (Treatment and Care) Act 1994 (ACT), Div 4.5, s 36A
Guardianship and Management of Property Act 1991 (ACT)
Criminal Law (Mentally Impaired Defendants) Act 1996 (WA), s 9
American Psychiatric Association’s Diagnostic and Statistical Manual IV – Text Revision
R v Monaghan [2009] ACTSC 61
R v Fisher [2011] ACTSC 56
R v Presser [1958] VR 45
R v Chanthasaeng (2008) 7 DCLR (NSW) 158
Ngatayi v The Queen (1980) 147 CLR 1
R v Dunne [2001] WASC 263
Eastman v The Queen (2000) 203 CLR 1
Kesavarajah v The Queen (1994) 181 CLR 230
R v Smith [2008] NSWDC 23
R v Tuigamala [2007] NSWSC 493
No. SCC 26 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 14 April 2011
IN THE SUPREME COURT OF THE )
) No. SCC 26 of 2009
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
JONATHON MONAGHAN
ORDER
Judge: Refshauge J
Date: 14 April 2011
Place: Canberra
THE COURT FINDS THAT:
So long as the special measures outlined in the reasons for judgment delivered on 14 April 2011 are implemented, Jonathon Monaghan is fit to plead.
This application has taken a slightly unusual turn, which is now to result in a change of decision.
The accused, Jonathon Monaghan, was charged with three offences: aggravated robbery (s 310 of the Criminal Code 2002 (ACT)) and two counts of dishonestly and without consent driving a motor vehicle (s 318(2) of the Criminal Code).
A question arose about Mr Monaghan’s fitness to plead and an investigation was conducted under s 316 of the Crimes Act 1900 (ACT). Following that investigation, I found Mr Monaghan unfit to plead. See R v Monaghan [2009] ACTSC 61. I was, however, not able to make a finding, as required by s 315A(4) of the Crimes Act, as to whether Mr Monaghan was likely to become fit to plead within twelve months: R v Monaghan (at [38]). Accordingly, I adjourned the proceedings for determination of that issue.
It is regrettable that this is not the only time that this part of the determination of the question of fitness to plead has been overlooked. See R v Fisher [2011] ACTSC 56 (at [80]).
Nevertheless, a further report of Dr Graham George dated 9 October 2009 was prepared. Unfortunately, Dr George had been unable to examine Mr Monaghan again but he did have a report from Ms Karen Onley, a psychologist who conducted certain psychometric assessments of Mr Monaghan.
Dr George had, however, seen Mr Monaghan on several different occasions since 2004 and considered that he was “in a unique position to offer an opinion with respect to Mr Monaghan’s current ability related to Fitness to Plead”.
What was unusual was that Dr George now formed the view that Mr Monaghan was fit to plead.
This was not entirely unexpected, for, in the original investigation, Professor Ken Nunn had also examined Mr Monaghan and he had concluded:
I do not believe that [Mr Monaghan] can reliably plead without very substantial support and time, which is not readily available within the Court process. However, it is likely that within the next five years he may move to such a position.
Whilst nothing like five years had passed since Professor Nunn so opined, his report being dated 4 June 2008, there were, as it appears, some other changes in circumstances that put the change of opinion by Dr George in context.
I found Mr Monaghan unfit to plead on three of the criteria set out in s 311(1) of the Crimes Act, namely that he would not have the capacity to follow the course of the proceedings (s 311(1)(d)), that he would not understand the substantial effect of any evidence (s 311(1)(e)) and that he would not be able to give instructions to his lawyer (s 311(1)(f)).
On each of these, Dr George in his most recent report had changed his mind and, with a rider, an important rider, was of the opinion that Mr Monaghan was fit to plead.
As to the capacity to instruct counsel, Dr George said in his oral evidence before me, that:
... I do feel that, given some of the answers he’s provided before that he does have an understanding that he can talk to his solicitor. He knows that a solicitor is there to represent his needs and – and that he has the capacity to talk about a case with a solicitor.
This view was not challenged by either counsel and I accept it, especially in the light of the further evidence about Mr Monaghan’s present situation.
That left only the other two criteria, and the prosecution and defence counsel had differing views on the effect of Dr George’s evidence on how I should assess them.
There was, perhaps unfortunately, a lack of clarity about what these criteria were intended to encapsulate. Thus, while I have formed the view that what Dr George’s evidence and opinion was directed to addressing was really the requirement that Mr Monaghan understand the substantial effect of any evidence, it tended to be expressly addressed in the context of the requirement that he understand the course of the proceedings. The two are, of course, liable to overlap or be confused, but it seems to me they are directed at different aspects of the trial process.
The course of the proceedings
The genesis of s 311(1) is in the decision of Smith J in the Supreme Court of Victoria in R v Presser [1958] VR 45. As to this criterion, (set out in s 311(1)(d) of the Crimes Act), Smith J said (at 48):
[The accused] 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 need not, of course, be conversant with court procedure ...
In R v Chanthasaeng (2008) 7 DCLR (NSW) 158, Nicholson DCJ said of this requirement (at 167; [46] to [47]):
An accused should be able to follow the course of the proceedings, so as to understand what is going on. That is, he will need to understand at some level the proceedings are a formal inquiry, conducted usually before a presiding judge and jury. If there is no jury, he will need to understand the judge is the tribunal of both fact and law. He will need to understand the prosecutor is charged with presenting evidence in support of the Crown allegations; that defence counsel is tasked with answering those allegations as best they can be answered.
He will understand the tribunal of fact, however constituted, is tasked with determining whether the prosecution has proved from the evidence in the trial the allegations made in the charges. In following the course of the proceedings, he will be able to follow the evidence. The accused must have at least a rudimentary understanding of the reception of evidence adverse to him, whether orally or by exhibits, and the effects of cross-examination.
It is to be noted that in New South Wales, the test for fitness is the common law test where the interplay of the various aspects of the test outlined in R v Presser may make for less concern to encapsulate the meaning of each criterion in a semi-rigid category as may be required in this Territory, where each is a separate paragraph in the legislation.
I do not consider that there is much profit, however, in applying too analytical an approach to each criterion. In my view, the course of the proceedings encompasses the process of the trial from arraignment (where, of course, the understanding of the plea of guilty is encompassed in s 311(1)(b) of the Crimes Act), to the various participants in the trial and their functions, such as the judge, the jury (if there is one) the prosecution and defence counsel and the witnesses, to the verdict. He should understand that evidence is given by them (though the understanding of the substance is encompassed within s 311(1)(e) of the Crimes Act), but perhaps no more than how they do so, namely that they will tell what happened.
The criterion needs to be applied in a reasonable and commonsense way: Ngatayi v The Queen (1980) 147 CLR 1 (at 8).
The substantial effect of prosecution evidence
This criterion (set out in s 311(1)(e) of the Crimes Act) is clearly closely associated with the course of the proceedings. In a sense, it may be said to be the substance of the course of the proceedings which addresses the procedure.
The references in R v Chanthasaeng to following the evidence ideally applies to this criterion. An accused’s ability is not necessarily to be divorced from the circumstances of his representation. Thus, as Miller J said in R v Dunne [2001] WASC 263 (at [14]):
The provisions of s 9(e), s 9(f) and s 9(g) must be read in the context of the statements to which I have referred in Eastman v The Queen (supra) and Ngatayi v The Queen (supra). It is the ability of the accused to follow the course of the trial, understand the substantial effect of the evidence presented by the prosecution and/or properly defend the charge assisted by counsel which are the relevant questions. The accused does not have to understand the evidence in detail, nor does she have to understand the law and its application to the facts of the case.
It is to be noted that the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) sets out the “Presser” criteria in the same way as s 311(f) of the Crimes Act, though the terminology is slightly different. Section 9(e), (f) and (g) are equivalent to s 311(1)(d), (e) and (f) of the Crimes Act, and the first two set out the test in relevantly identical terms, though the last is somewhat differently worded.
The references to the citations of the High Court decisions are relevant and were to the following passages. His Honour cited what Gleeson CJ said in Eastman v The Queen (2000) 203 CLR 1 (at 14; [24]):
Unfortunately, it is not unusual for the criminal justice system to have to deal with people with mental disorders; sometimes severe disorders. The existence of the disorder does not, of itself, prevent them from being brought to trial.
In Ngatayi v The Queen, Gibbs, Mason and Wilson JJ said (at 8 – 9):
The test looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite a high order, particularly in cases where intricate legal questions arise. 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. We respectfully agree with the view expressed by Smith J in Reg v Presser that the test needs to be applied ‘in a reasonable and commonsense fashion’.
...
The view that the accused need not have sufficient capacity to make an able defence, or to act wisely or in his own best interest, is accepted also in English cases such as Reg v Robertson and Reg v Berry, and accords with common sense.
...
The section does not mean that an accused can only be tried if he is capable, unaided, of understanding the proceedings so as to be able to make a proper defence. This is self-evident when the incapacity to understand the proceedings is due to an inability to understand the language in which the proceedings are conducted. In such a case, if an interpreter is available the incapacity is removed. 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.
(footnotes omitted)
It is in this context and bearing these matters in mind that an assessment of the accused as to this criterion is to be made.
Assistance to the Accused
It is clear on these authorities that the assistance of counsel is an important factor in determining whether an accused is fit to plead. Naturally, an accused whose mental processes are disordered or impaired will not be at an unacceptable disadvantage if he or she is represented by counsel who is able to ensure that, so long as the accused can tell counsel his or her version of events and otherwise provide the information that counsel might seek, the accused can follow the trial and substantially understand the evidence. That the accused can recount his or her version of the events is, of course, that to which the criterion referred to in s 311(1)(f) is addressed.
The reference to interpreters in Ngatayi v The Queen (at [20] above) also implies that counsel is not the only kind of assistance that an accused might need and which may meet deficits that may otherwise render the trial unfair or, indeed, a nullity, as described by Gaudron J in Eastman v The Queen (at 21; [62]).
Other steps can also be taken. For example, an adjournment can be taken: Kesavarajah v The Queen (1994) 181 CLR 230 (at 246). This will allow counsel to explain what is happening and the effect of evidence. It does not seem to me that where an accused does not understand the substantial effect of evidence as it is spoken by a witness, he or she must be unfit to plead when they can understand it if explained carefully by his or her legal representatives. This is likely to be the position in relation to many accused whose trial includes expert witnesses who give complex technical evidence, such as DNA evidence, and particularly the probability statistics that are part of that.
In R v Smith [2008] NSWDC 23, Norrish QC DCJ pointed out (at [36]):
... any proceedings relating to the prosecution of the accused will need to provide opportunity for the accused, during the hearing, to obtain ‘one on one’ assistance to follow the proceedings from time to time and there will need to be suitable breaks and adjournments to assist the accused to digest, collate or synthesise the evidence given in the trial.
In R v Tuigamala [2007] NSWSC 493, Studdert J had to consider a raft of measures, none of which were regarded as inappropriate for the fair conduct of the trial. These included:
· questions should be brief and complex questions avoided;
· the accused should be allowed to narrate his or her own version of events with little interruption;
· questioners should await an answer to questions and allow the accused time to respond and especially not interpolate a second question during any delay in answering;
· ambiguous or non-responsive answers should be clarified to ensure that the accused is in fact answering the question asked and has not misinterpreted it;
· the jury should be given directions as to the demeanour of the accused.
Although ultimately Studdert J held that the accused there was unfit to plead, his Honour did not suggest any of these measures were inappropriate or unable to be implemented.
The assessment
Both Dr George and Professor Nunn had originally assessed Mr Monaghan as unfit to plead. That was significantly influenced by an IQ assessment of him at age 13 of 59, which would amount to mental retardation. It is the fact that a later psychological assessment had tested Mr Monaghan’s full scale IQ at 77, reported on a Report dated 3 June 2008, a report to which, however, both Dr George and Professor Nunn had access. Nevertheless, as Dr George noted in his evidence before me, he and Professor Nunn were working “in the context of” two results of IQ tests resulting in a level of 59 and expressed the view that if his IQ were actually to be 77, he may well be fit to plead.
Dr George felt that the latest comprehensive psychological testing disclosed in the Psychological Report of Ms Onley had changed his view. He now felt that Mr Monaghan was fit to plead. Dr George did, however, place a rider on that, namely that Mr Monaghan was provided with a “mentor”.
Mr Monaghan was, Dr George said, suffering from a Mixed Receptive Expressive Language Disorder. According to the American Psychiatric Association’s Diagnostic and Statistical Manual IV – Text Revision (at 62), the essential feature of such a disorder is:
... an impairment in both receptive and expressive language developments as demonstrated by scores on standardized individually administered measures of both receptive and expressive language development that are substantially below those obtained from standardized measures of nonverbal intellectual capacity ...
An individual with this disorder has the difficulties associated with Expressive Language Disorder (e.g., a markedly limited vocabulary, errors in tense, difficulty recalling words or producing sentences with developmentally appropriate length or complexity, and general difficulty expressing ideas) and also has impairment in receptive language development (e.g., difficulty understanding words, sentences, or specific types of words). In mild cases, there may be difficulties only in understanding particular types of words (e.g., spatial terms) or statements (e.g., complex ‘if-then’ sentences). In more severe cases, there may be multiple disabilities, including an inability to understand basic vocabulary or simple sentences, and deficits in various areas of auditory processing (e.g., discrimination of sounds, association of sounds and symbols, storage, recall, and sequencing).
Dr George noted that Mr Monaghan’s verbal reasoning had improved since his earlier assessment, though still in the very low range, and that he had a good abstract reasoning ability and a good average non-abstract reasoning ability. He has also “quite a good pictorial brain.” Thus, he learns experientially, through repetition and visually.
For Dr George, the role of the mentor would be to prepare Mr Monaghan for the trial by explaining the process of the court proceedings, the likely course of the proceedings and the effect of the evidence likely to be presented by the prosecution. He would also need access to this person during the trial so as to be able, in Dr George’s words, “to tug somebody on the sleeve and say ‘Look, I don’t understand that’”.
Dr George accepted that Mr Monaghan would not have difficulty concentrating and that he was prepared to ask questions, with an ability to focus his attention for an extended period. He had discussed Ms Onley’s Psychological Report with its author and referred to the following list of communication difficulties of Mr Monaghan as set out in the Report (at 6) as follows:
1. Reduced understanding of vocabulary.
2. Reduced ability to read or decipher complex forms.
3. Reduced ability to reason abstractly and find links between concepts.
4. Reduced ability to follow fast moving and technical conversations.
5. Reduced ability to decipher written material.
6. Reduced ability to understand long questions.
7. Reduced ability to understand complex verbal directions.
8. Limited ability to calculate arithmetic above a basic level.
9. Normal ability to understand visuospatial concepts and designs.
The author then commented:
Mr Monaghan benefits from simplified explanations, repeated instructions when required, and the use of prompting, modelling and guidance on more complex tasks.
A number of the listed reduced abilities are unlikely to be relevant at trial and suitable arrangements could be made to ensure that most of the identified benefits could be made available.
Dr George also felt that Mr Monaghan’s adaptive ability was greater than the test scores showed, leaving him with a higher level of confidence about his ability to “go through his day to day activities.”
Thus, he understands the difference between right and wrong, that it is wrong to steal a car and the parameters within which the community works. Dr George’s opinion was now that Mr Monaghan could follow the course of the proceedings (including the substantial effect of the prosecution evidence), as long as he had help, and was thus fit to plead.
Mr Monaghan’s counsel, Ms T Warwick, put to Dr George that he was unable to assess how fragmentary Mr Monaghan’s understanding really was, particularly as he kept it simple and took the answers at face value. Dr George agreed. He did say, however:
[m]y general impression is that he would follow simple concrete language because he did when I perhaps spoke to him about some of the other different criteria. I mean, he was aware that perhaps in a court there would be a magistrate, there’d be some form of prosecutor and there’d be some sort of defence or Legal Aid solicitor, or – he had those sort of basic concepts, but following proceedings would be a different matter. He’s aware of the structure. I mean, he can see it. His visual skills are good. So if he can make the identifications with prosecution, defence, a magistrate or a judge or a jury. I mean, if he’s able to see those different people within a court he can understand structure. But following proceedings with the language difficulties, as I’ve said, is the sticking point.
This was in contrast to his evidence at the earlier hearing following which I found Mr Monaghan unfit to plead.
Dr George also agreed that the three psychological reports that were now before me, namely those of Ms Catherine Huntley, Ms Vindi Nanayakkara and Ms Onley were consistent, though there was some marginal improvement shown in verbal comprehension, which, Dr George suggested, showed that there had been a learning process.
Dr George also accepted Ms Onley’s opinion that Mr Monaghan’s impaired receptive language ability significantly compromised his ability to make decisions or form responses based on information received receptively.
It appears that the more recent report, however, had crystallised Dr George’s view. It now appeared that he identified the main issue as the difficulty with Mr Monaghan’s reception of language based information, but that with assistance, this would be able adequately to be ameliorated. Thus, he said:
... in terms of perhaps the population of people coming before the court, there may be quite a few people that would come with low – low average intelligence before the court and would negotiate the fitness to plead process, and therefore come before the court. In Jonathon’s case the stumbling block is the language difficulties. I see that as – I mean, that’s what we focused on last time, that’s I guess been the focus on this occasion, but because Ms Onley has actually made recommendations about how he could be helped I’ve actually said well yes, there – there is quite a possibility now that he is fit to plead, providing all this help could be given to him. You know, it’s – if people are able to learn in different ways they can possibly have an understanding of concepts that other people only understand in oral language. So there is a big rider to my opinion.
Dr George felt that there would be no improvement to his present position in the next twelve months.
Dr George also noted that, as Mr Monaghan had been to court a number of times, his understanding of the court structure (by which I understand he meant the personnel and general operation of the proceedings) had improved. This now clearly met the criterion in s 311(1)(d) of the Crimes Act, namely ability to follow the course of the proceedings.
Dr George set out what he saw the “mentor” would do. The transcript records:
[DR GEORGE] ... if he was prepared to go through, say a minimum of six sessions, taking into account perhaps different scenarios or perhaps what witnesses may say, based on the information that can be provided for him, that would be the process to engage in and to see if he was making progress over time.
...
[MS WARWICK] And then during the trial process we’d also need – things will occur either that are unexpected and unpredictable or, indeed, perhaps things will just be going relatively quickly. And you’ve said that he would need further assistance during the court process. Again you’ve referred to a mentor, and that person, presumably a psychologist, would be helpful again to be able to test during the proceedings his comprehension?
[DR GEORGE] Sure.
[MS WARWICK] And you’d suggest that you would be testing for his comprehension because there would be parts where he wouldn’t be keeping up?
[DR GEORGE] He’d probably have difficulty keeping up but I don’t know whether you can paraphrase things in simple terms as you go along. But that would be one way of trying to keep him up to pace with what’s happening.
[MS WARWICK] But there may be points, particularly when something unexpected evidence is occurring, where he would have difficulty and may not be able to keep up?
[DR GEORGE] Exactly. Especially if he has a problem with comprehension.
[MS WARWICK] And again the psychologist would be useful there to know whether that’s in fact occurring?
[DR GEORGE] I think so.
Dr George also noted that Mr Monaghan had a significant hearing loss and that this would need to be kept in mind.
I also note that Dr George was of the view that Mr Monaghan has learned “experientially” and that this “isn’t totally measured in tests of adaptive functioning” and that the tests were to be contrasted to that extent with the clinical observations that he made that Mr Monaghan has communicated quite effectively. He was also of the view that people with an IQ of 77 would ordinarily meet the criteria of fitness to plead without the specific disorder from which Mr Monaghan suffers.
He further expressed the view that Mr Monaghan could “clearly understand normal testimony as long as it doesn’t become too complex” but that he could become “lost” when “his counsel objects and puts a legal point” to the court. This does not seem to me to amount to unfitness to plead.
Ms K Mackenzie, counsel for the prosecution, noted that the case involved CCTV and photographs, with which Mr Monaghan would have no difficulty because of his normal ability to receive information visually. The case also includes co-offender testimony as well as police information. It seems that, at least in regards to the former, Dr George was satisfied Mr Monaghan could clearly understand.
Also tendered before me was a Community Care Order made in respect of Mr Monaghan on 5 March 2009. Such an order is made under Div 4.5 of the Mental Health (Treatment and Care) Act 1994 (ACT). Section 36A (1) of that Act provides what is the content of such an order as follows:
(a)that the person is to be given treatment, care or support;
(b)that the person may be given medication for the treatment or amelioration of the person’s mental dysfunction that is prescribed by a doctor;
(c)that the person is to undertake a counselling, training, therapeutic or rehabilitation program;
(d)that limits may be imposed on communication between the person and other people.
I do not need to detail the arrangements made in the Orders save that I note the following:
Jonathan would attend the Winnunga Nimmityah Aboriginal Health service substance use diversion program for 12 to 18 year-olds. The program manager is Bill Collins and the main component of the course is automotive training. The automotive focus course runs for four days a week from 10.00 am to 3.30pm. Mr Collins is also coordinating a certificate 2 business studies course one day a week. Mr Collins has worked with Jonathan in the past and says he is happy to accept Jonathan into both of these training programs [sic].
Of course, I did not have full details of these courses, but I do note that these educational courses have been found to be sufficiently suitable that they form part of the Care Co-Ordinator’s Care Plan which is, it appears, the content of the Order.
I note also that a Guardian has been appointed in respect of Mr Monaghan under the Guardianship and Management of Property Act 1991 (ACT). As I noted in R v Fisher (at [29]19), that is not determinative of whether an accused person is unfit to plead.
Contentions
Ms Mackenzie submitted that I should not find Mr Monaghan unfit to plead. She submitted that the clinical examinations conducted by Dr George were somewhat more favourable to Mr Monaghan’s capacities than some of the sub test results obtained by psychologists and that this was reliable. She submitted that Mr Monaghan:
... does know who’s involved with the proceedings, he does know how he can be involved in the proceedings. He does know that he can question people, he does know that he can talk to his lawyer, and that his lawyer is there to advocate for him. And he does, as we’ve seen, understand basic testimony. And in this particular context we’re talking about him being able to take part in a criminal trial and we would submit that that is what a criminal trial involves. It involves testimony from witnesses and, in this case in particular, we’re not looking at expert testimony. We’re looking at witnesses telling a story.
The other thing that may be involved are pictures, CCTV, visual components. Now, there was nothing in the evidence that would indicate that he would have any difficulty understanding what he was seeing on a screen or in photographs.
Ms Mackenzie submitted that the mentor, the subject of Dr George’s rider, could be Mr Monaghan’s instructing solicitor. In this, she relied on what was said in Ngatayi v The Queen as cited above (at [20]).
Ms Mackenzie also submitted that the earlier opinions of Dr George and Professor Nunn, on which I earlier relied, were heavily influenced by the earlier IQ score of 59 and that the current score (where there can be false lows but not false highs) were more consistent with Dr George’s clinical examination.
Ms Mackenzie submitted that in applying the test for fitness in a reasonable and common sense fashion, as required by the High Court, Mr Monaghan would not be found unfit to plead. She submitted, too, that the case was not a complex one. She also submitted that to take Dr George’s rider at its highest would be to impose too high a standard on the requirements of the law about fitness.
Ms Warwick, Mr Monaghan’s counsel, noted, on the other hand, that the case would involve some thirty five witnesses of whom twenty or so would be police officers.
Ms Warwick submitted that following the course of the proceedings is more than “simply following the story of each independent or individual witness”. She said that it included being “able to ... cross-reference between different witnesses ... to be able to compare different things that have happened.”
This, I have to say, seems, on the authorities, to be far more than what is encompassed in the criterion described as “following the course of the proceedings”. Even allowing that it is rather addressing the criterion concerning ability to understand the substantial effect of evidence, I do not consider that such cross-referencing unaided is what is required. Rather, what is required is that the accused can understand what each witness says and, if inconsistencies or differences are drawn to his attention by his or her legal representative, then he or she can appreciate that they are different or inconsistent.
She further noted that Dr George had suggested that in order to be sure that Mr Monaghan was understanding what he was being told, a psychologist would be necessary. That was what Dr George submitted but it does seem to be going too far. The law does not require a guarantee of actual understanding. An accused is entitled to avoid listening to evidence, to daydream and is not guaranteed that every witness will speak at a speed or in non-technical language that he or she actually comprehends. The test is directed at capacity or ability and, where the accused is represented, it is the responsibility of the accused’s legal representatives to ensure that the accused has the knowledge and comprehension of the evidence that he or she needs for a fair trial and that they need for their instructions. This, of course, is not an open-ended obligation as the requirement for interpreters shows. There will also be those whose capacity to comprehend is so low as to place an unreasonable burden on counsel. The court is concerned with whether the accused has the necessary mental faculties: sufficiently unimpaired, so that he or she has the capacity or ability to understand the evidence and its effect.
Ms Warwick also expressed concern at the feasibility of the work of a “mentor” as described by Dr George. She referred to the obvious challenge of interrupting the proceedings “after every third or fourth question”. Of course, what the test requires is comprehension of the “substantial effect” of the evidence, not the full meaning of every question. I note that Dr George also importantly said that Mr Monaghan could understand normal testimony.
Ms Warwick was also concerned about the practicalities of the arrangements for a mentor, and this was certainly something of a concern. Mr Monaghan did have a guardian and it may be that the guardian or someone from the guardian’s office could partly play this role, though Ms Warwick was advised during the hearing that this was not their usual role and that they did not have funding to allocate such resources to the task. In appropriate cases, it may be that the court must decide that if the community wishes to put someone like Mr Monaghan on trial, it must simply find the necessary resources to do so fairly.
The issue of what to do if Mr Monaghan rejected the explanations that the mentor provided was also raised. It seems to me, however, that this is not a matter that is part of the consideration unless his rejection is caused by a mental disorder or impairment so that Mr Monaghan does not have the capacity to accept the explanation offered.
Ms Warwick further submitted that Dr George’s opinion was conditional and that this was important. That is to say, his opinion was not that Mr Monaghan was not unfit to plead, so that the court could leave it there. It was rather that he was not unfit only if he had particular assistance.
Consideration
This is not an easy matter to decide. I have already found Mr Monaghan unfit to plead. A real question arose, however, as to whether he was unfit temporarily or whether he would become fit within twelve months.
That required a further examination and, instead of a prognostication, the examination resulted in the professional revising his opinion. That is not uncommon. For example, in R v Tuigamala, one of the experts assessed the accused there as fit to plead but later re-examined him and changed her view.
It seems that the comprehensive Report of Ms Onley has had a significant impact on Dr George’s opinion, especially as he did not further examine Mr Monaghan though he did, in addition, relied on his earlier clinical experiences with him.
It does appear that, even though he did have access to Ms Huntley’s Report of 3 June 2008, Dr George did not appreciate that Ms Huntley had assessed Mr Monaghan’s IQ score as 77. There were, in Dr George’s Report of 6 January 2009, a reference to Mr Monaghan “functioning in the range of a full scale IQ of 50-70” and a further reference to his functioning in the “extremely low range of intelligence (full scale IQ 59)” as the only relevant references.
Professor Nunn was aware of the report containing the higher score and had noted that Mr Monaghan had improved in function since previous assessments. He felt that there would be further improvement. Familiarity with circumstances was an important factor and he noted that Mr Monaghan was very familiar with court proceedings but Professor Nunn was still cautious about Mr Monaghan’s capacity to deal with complex or unfamiliar matters.
Professor Nunn’s real concern was in the area of comprehension. Again, much of his concern were of issues that are, perhaps, not so critical. He was concerned about his inability to “assess the significance of where things are heading ... the import of the evidence.”
That, however, may not be critical for fitness to plead where Mr Monaghan is represented; that, indeed, is part of counsel’s function: to explain.
Professor Nunn did, however, foresee the likelihood of improvement within five years, though I did not see that as the minimum time but the outer limit.
It was a pity that I did not have a further report of Professor Nunn, but it did seem to me that I could accept Dr George’s further Report and revisit my earlier finding.
On the basis of the material, I now have, I am satisfied that Mr Monaghan can follow the course of the proceedings and can instruct his lawyers, though he may need some preparation as noted below.
As to understanding the substantial effect of the prosecution evidence, it seems to me that this is the area to which Dr George’s “rider” is really directed.
In my view, this can be dealt with in a number of ways. Some are required before the trial and can now be mandated. Some will have to be monitored during the trial and must be left to the trial judge.
The first issue is the preparation that Dr George suggested.
In Dr George’s words, the purpose of these sessions, really directed towards the understanding of the course of the proceedings were as follows:
One of the ways that this could be gone about would be to be able to sit down with Jonathan ahead of time and perhaps over several sessions go through the process or the normal proceedings of the court, so that at some level he’s prepared for what will occur.
Later, it was clear that this could also encompass some discussion of what the evidence of the prosecution would be likely to be so that he would be prepared for the experience and absorb the information with which he has been prepared.
He was a little equivocal but initially suggested four to six sessions before the trial, firming up on six sessions. In light of Mr Monaghan’s circumstances, I am of the view that four pre-trial sessions should be sufficient. I consider that these can only realistically be provided by Mr Monaghan’s legal representatives whether solicitor alone or solicitor and counsel or a mix of these. I understand that they are presently funded through the Legal Aid Office (ACT). I would expect that, if the professional advice is that these sessions were necessary for a fair trial, a proper case would be made for the funding of them. The sessions, as I understand it, would be directed to the formalities of the court process and the substance of the prosecution case, which, no doubt, has been disclosed in the brief that will be, if not already, served on Mr Monaghan’s lawyers.
It seems to me, also, that it is the responsibility of Mr Monaghan’s legal representatives to explain to him the evidence as it is led at trial. This is not a quasi-interpreters role, but involves a discussion with Mr Monaghan during the proceedings from time to time. It may, with a witness whose evidence is short, only involve a brief discussion at the end of that witness’s evidence. For that purpose, adjournments may need to be provided. That is a matter for the trial judge but it will be the responsibility of Mr Monaghan’s counsel to see that they are sought as he or she will have a better feel, especially as a result of the preparation process, as to how often they are needed.
It does seem to me, however, that it is not necessary to provide a psychologist as a mentor as suggested. The function of the “mentor” during the trial is not really one so obviously to be performed by someone so qualified. Familiarity with the court and the detail of the proceedings is far more important.
The question of whether Mr Monaghan’s capacity has been overestimated by Dr George, however, is one that needs to be considered. Accordingly, it seems to me that a psychologist should examine Mr Monaghan at the end of the first day of the trial to assess whether Mr Monaghan is actually comprehending what he has been told by his legal representatives, for if not, then these measures are not being effective. The trial judge should receive a report, probably oral, from the psychologist to ensure that Mr Monaghan is comprehending, not the detail and entirety of the evidence, but the substantial and general effect of it. This is similar to the approach adopted by Miller J in R v Dunne (at [36] to [39]). Whether that should be repeated during the trial is a matter for the trial judge.
The question of how such arrangements are to be managed is partly for the trial judge and partly for the parties. It seems to me that an analogy with the use of interpreters is helpful. That is to say, for a fair trial, some accused require an interpreter. This is provided by the community through the government, being arranged and paid for by the prosecution. This is justified on the basis that the provision of such assistance is necessary for there to be a fair trial. If not provided there is not a trial, for it cannot be held fairly. In this case, if the court cannot be satisfied that the special measures put in place are working then it cannot be satisfied of a fair trial. If the prosecution wishes to conduct the trial, it must do its part to ensure it is fairly conducted, including relevant provision of such accommodation as is necessary to achieve that end. That would, in this case, involve the provision of the psychologist and co-operation in the granting of relevant, short adjournments.
Other matters, such as the way in which evidence is led, the pace of the proceedings and any restrictions on the way in which Mr Monaghan is questioned are matters for the trial judge, whose attention should be drawn to these remarks so as to be able to implement those that he or she considers necessary in the actual circumstances of the trial. I would, of course, expect co-operation with the implementation of these measures from the prosecution as well.
Conclusion
Accordingly, I find that, so long as appropriate special measures are implemented in accordance with these reasons, Mr Monaghan is fit to plead.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 14 April 2011
Counsel for the Crown: Ms K Mackenzie
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Ms T Warwick
Solicitor for the defendant: JCKB Legal Services
Date of hearing: 23 February 2010
Date of judgment: 14 April 2011
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