R v Monfries (No 2)
[2011] ACTSC 205
•December 21, 2011
R v JUSTIN MONFRIES (No 2)
[2011] ACTSC 205 (21 December 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – investigation of fitness – intellectual disability – finding fit to plead.
Crimes Act 1900 (ACT), ss 24, 311
Criminal Code 2002 (ACT), ss 308, 315, 318, 326
Bail Act 1992 (ACT), s 49
Magistrates Court Act 1930 (ACT), s 90A
R v Dashwood [1943] KB 1
R v Presser [1958] VR 45
R v Monfries [2011] ACTSC 203
R v Fisher [2011] ACTSC 56
Egan and Ors v JG [2010] ACTSC 53
R v Chanthasaeng (2008) 7 DCLR (NSW) 158
R v Holt (2009) 9 DCLR (NSW) 87
R v Mailes (2001) 53 NSWLR 251
Ngatayi v The Queen (1980) 147 CLR 1
P v Police [2007] 2 NZLR 528
R v Monaghan (No 2) [2011] ACTSC 62
R v Dunne [2001] WASC 263
Dutfield v Gilbert H Stephens and Sons (1988) 18 Fam. Law 473
Pickersgill and Anor v Riley (Jersey) [2004] UKPC 14
R v Smith [2008] NSWDC 23
R v Tuigamala [2007] NSWSC 493
R v Stevens (2010) 107 SASR 456
Kesavarajah v The Queen (1994) 181 CLR 230
No. SCC 435 of 2008
No. SCC 201 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 21 December 2011
IN THE SUPREME COURT OF THE )
) No. SCC 435 of 2008
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 201 of 2011
R
v
JUSTIN MONFRIES
ORDER
Judge: Refshauge J
Date: 21 December 2011
Place: Canberra
THE COURT FINDS THAT:
Justin Monfries is fit to plead.
One of the cardinal principles of the criminal law, namely that people should not be tried for a crime unless in a mental condition to defend themselves, as stated as long ago as 1942 in R v Dashwood [1943] KB 1 (at 4), is not always easy to apply in relation to people with mental disturbances such as schizophrenia. It is even more difficult to apply in the case of those with an intellectual disability.
The classical tests, such as those set out in R v Presser [1958] VR 45 (at 48), are not obviously directed at people with an intellectual disability, though they do refer to comprehension which is an integral part of the challenge faced by those with an intellectual disability.
I have now to decide whether Justin Monfries, a man who has an intellectual disability, is fit to plead to a number of charges he faces in this court.
The test is now a legislative one and is set out in s 311 of the Crimes Act 1900 (ACT), which provides:
311 When a person is unfit to plead
(1)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.
(2)A person is not unfit to plead only because the person is suffering from memory loss.
The proceedings
An outline of the rather convoluted proceedings has been set out in my earlier decision relating to bail, R v Monfries [2011] ACTSC 203, and I do not need to repeat it.
Mr Monfries is facing a number of charges. As noted in those earlier proceedings, the record was not entirely clear about which of them have been committed to this court for sentence and which for trial.
I am reasonably confident that he has been committed to this court for sentence in relation to the following matters:
(a) on 19 November 2007, he had an article with him with intent to use it in the relation to a theft, an offence under s 315(1) of the Criminal Code 2002 (ACT), rendering him liable to a maximum penalty of 300 penalty units (a fine of $30,000) or three years’ imprisonment or both;
(b) on 3 March 2008, he failed to appear in accordance with his bail undertaking, an offence under s 49(1) of the Bail Act 1992 (ACT), an offence which carries a maximum penalty of 200 penalty units, (a fine of $22,000) or two years’ imprisonment or both;
(c) between 7 March 2008 and 9 March 2008, theft of a car park access remote control device, contrary to s 308 of the Criminal Code, attracting a maximum penalty of 1,000 penalty units (a fine of $110,000) or imprisonment for ten years or both;
(d) on 13 March 2008, dishonestly without consent driving a motor vehicle owned by someone else, prohibited by s 318(2) of the Criminal Code, and punishable by a maximum penalty of 500 penalty units (a fine of $55,000) or five years’ imprisonment or both;
(e) on 10 July 2008, he failed to appear in accordance with his bail undertaking; and
(f) on 19 September 2008, he failed to appear in accordance with his bail undertaking.
The following matters may have been committed for trial, though there is uncertainty for some of the papers show a committal for sentence:
(g) on 6 February 2008, a charge of dishonestly riding in a motor vehicle without consent, also an offence under s 318(2) of the Criminal Code with the same maximum penalty;
(h) on 13 March 2008, unlawful confinement, an offence contrary to s 34 of the Crimes Act, which provides for a maximum penalty of ten years’ imprisonment; and
(i) on 13 March 2008, a further charge of unlawful confinement.
The position in relation to these charges (at [8] above), however, has now been put beyond doubt. On 19 May 2009, a Notice Declining to Proceed was filed in respect of all these charges. Thus, none of these three are proceeding.
On the following matter, Mr Monfries was committed for trial on 26 May 2011:
(j) On 13 April 2011, attempting to obtain property, namely $6,675.20, by deception, an offence contrary to s 326 of the Criminal Code for which the maximum penalty provided is 1,000 penalty units (a fine of $110,000) or ten years’ imprisonment or both.
While the latter offence was alleged to have been committed well after the hearing as to whether Mr Monfries was fit to plead, both parties agreed that it should, in the circumstances, be encompassed within my considerations.
I note that no indictment has been filed in any of the proceedings. My concern about the need to do that is set out in R v Fisher [2011] ACTSC 56, a decision made well after the hearing in this matter.
As I there said, while it may be an important part of the assessment of an offender’s fitness to plead, it is not essential to find jurisdiction.
In any event, for the majority of the offences, I had a certificate under s 90A of the Magistrates Court Act 1930 (ACT), which, by virtue of s 90A(11), means that the informations before the Magistrates Court and which are attached to the certificate, amount effectively to an indictment to which Mr Monfries has pleaded.
The evidence
I had before me a number of Reports from health practitioners. They are as follows:
(k) Report of Dr G J George dated 19 June 2009
In that Report, Dr George recounted the results of his clinical examination of Mr Monfries at the Alexander Maconochie Centre on 26 May 2009. He had access to details of the offences with which Mr Monfries had been charged, a Forensic Psychological Report of 2006, a Neuropsychological Report (no date given) and a Pre-Sentence Report of 21 October 2005.
The Report was prepared as a psychiatric assessment for the ACT Civil and Administrative Tribunal but Dr George included an assessment of whether Mr Monfries was fit to plead.
Dr George recounted that Mr Monfries had a disturbed developmental history, suffering, from a young age:
1.retardation in normal childhood milestones and development
2.ongoing learning problems, especially in language and speech
3.behavioural problems, severe disruption of interpersonal and social relationships
4.conduct disorder, both socialised and unsocialised during childhood and adolescence
5.attention difficulties leading to a diagnosis during his childhood years of attention deficit hyperactivity disorder
6.chronic social/interpersonal problems leading to a diagnosis of Asperger’s Syndrome in childhood and adolescence
7.criminal behaviour in adolescence and early adulthood leading to a diagnosis of antisocial personality disorder
It appeared that the weight of evidence during his childhood and adolescence tended to emphasise a diagnosis of Asperger’s Syndrome.
...
In addition to this, he was reported to suffer four head injuries between the ages of two and five years. There was no reported loss of consciousness at that time.
In addition to this, he was diagnosed with epilepsy through having an electroencephalogram (EEG) in 1994. He would have been six years of age at the time. He was shown to have ‘a fairly prominent spike with phase referral over the right fronto-temporal region’. This suggests right temporal lobe epilepsy. He was treated with anticonvulsants between the ages of six to fourteen years but these were suspended at that time by his parents because of his substance abuse at that age. It does not appear this medication has ever been recommenced. This does not mean that the condition disappears. Theoretically, his epilepsy would be ongoing over time.
Lastly, he has abused alcohol, cannabis, amphetamines, methamphetamine and inhalants. Inhalants can cause brain damage. Alcohol in excessive amounts or on a constant daily basis at addictive levels can cause brain damage. Methamphetamine is thought to be responsible for damage to brain in the white matter and cannabis and amphetamines can affect the brain biochemically.
Dr George described the presentation of Mr Monfries; there was nothing remarkable in what he described. He also set out his history, which I summarise.
Mr Monfries is an Aboriginal Australian, his mother being Aboriginal. He was born in 1988 in Canberra, where he grew up with his two brothers and three sisters. His mother abused alcohol. His father was employed in the information technology industry.
He was expelled from high school during Year 10 and at that stage could not read or write. He still struggles with these skills.
He has been occasionally employed, at most for six months. He has abused alcohol and used amphetamines and methamphetamines.
He was aware that “his memory let him down on many occasions” and “he often lost track of conversations”. He said he was clumsy and had been told he was poorly co-ordinated. He suffered sudden anxiety and fear but denied any psychotic phenomena. He had not had any admissions to any psychiatric unit. He had engaged in self-harm at an early age.
Dr George found that Mr Monfries “presents a confusing picture,” referring to the various diagnoses that had been made over the years. Dr George came to the following conclusions:
(1) Mr Monfries has an extra Y chromosome, known to be associated with speech and language difficulties;
(2) He has been diagnosed with temporal lobe epilepsy and continues to exhibit symptoms of that, and that could affect his judgement and insight at times; and
(3) He has cognitive deficits, especially a short term memory deficit.
Dr George assessed Mr Monfries to be unfit to plead on the basis that he had no real understanding of court proceedings and the words used, making it very difficult to understand the process. He also assessed Mr Monfries as having difficulty in instructing his lawyers.
In coming to this assessment, Dr George did report that he asked Mr Monfries “about specific criteria associated with Fitness to Plead”. They were, however, not questions in terms of the statutory criteria. For example, he asked “whether [Mr Monfries] understood that, at an initial hearing, a magistrate had to make a decision whether there was sufficient evidence to make a charge”, which does not really address s 311(1)(c) of the Crimes Act.
Similarly, there was no direct evidence that Dr George had addressed the issue of whether Mr Monfries could understand the substantial effect of the evidence given: s 311(1)(e) of the Crimes Act.
Again, while Dr George asked whether Mr Monfries knew of the charges against him, he did not really ask about the nature of them: s 311(1)(a) of the Crimes Act.
(ii) Report of Dr George of 20 November 2009
This Report, addressed to the court, was specifically for the fitness to plead investigation.
Dr George reported that he had carried out the same kind of questioning as he had for the earlier report and commented that, “again [Mr Monfries’] ability to understand different criteria associated with fitness to plead was flawed.”
One of the bases for this was that, so far as the charges were concerned, Mr Monfries would have “difficulty submitting a plea to different charges but to a large degree would rely on advice given to him by his solicitor.” This is, of course, the position with a number of people who are nevertheless fit to plead. The issue is not so much a matter of knowing the technicalities of the law as being able to give an account of the events and the facts and then comprehending the legal advice from lawyers as to the legal consequences and options available.
It includes, of course, an ability to weigh up evidence so as to be able to enter an appropriate plea or take advice from a lawyer about it, but it is not a demanding test. See Egan and Ors v JG [2010] ACTSC 53 (at [86] to [90]).
In order to assess this in more depth, Dr George referred to a further neuropsychological report that had been conducted in October 2009. The conclusions of that report were that “Mr Monfries does appear to have met the criteria for a developmental disorder in the past and this would be related to either his genetic condition (extra Y chromosome) or Asperger’s Syndrome”. The psychologist concluded there was no evidence of epilepsy. She also noted Mr Monfries’ past and continuing history of “disruptive and anti-social behaviour”.
Psychometric testing had shown Mr Monfries to have “low average verbal intellectual function and average perceptual reasoning (non-verbal) intellectual function” with a “low average premorbid intellectual ability.” The psychologist concluded that Mr Monfries “would need assistance with reading and interpreting complex written materials, mathematical calculations and written expression”.
While significant deficits and inhibitors to full social functioning, none of these limitations would, of themselves, render Mr Monfries unfit to plead. Indeed, Dr George commented that the implications of this Report:
... suggested that Mr Monfries could well be found Fit To Plead if a court case was able to be conducted in simple language with simple interpretations of proceedings and assistance from a lawyer or a mentor. She suggested visual aids may be useful when providing assistance.
He then referred to his earlier report, where the problems, he thought, were in the concept and context of the initial hearing (presumably the committal hearing) and then understanding of the proceedings and process of the court. He continued:
It does appear that he could only be seen as ‘Fit To Plead’ if, indeed, any court proceedings were carried out using simple language and a mentor provided to explain to Mr Monfries the process of the court and also, to interpret to him any complex language in simple terms. If these conditions could be met then, he could be regarded as ‘Fit To Plead’ but if this assistance could not be given to him then, I believe that he would remain Unfit To Plead.
(iii) Report of Neuropsychological Assessment Report of Psychologists Ms M Martinez and Dr J Smith dated 6 November 2009.
Much of the relevant material from this Report is referred to in my summary of Dr George’s Report of 20 November 2009 above (at [33] and [34]). I note, however, the following additional conclusions:
(a) the psychologists found that Mr Monfries demonstrated problems with encoding complex auditory information and that his mild attention difficulties (distractibility) could contribute to this. He does not, however, demonstrate problems with memory storage or retrieval, that is, once new information is encoded, he is able to remember it and use it successfully later.
(b) He had significantly lower performance on academic ability than his peers with learning problems, though not sufficient to amount to a learning disorder.
These, and the other conclusions, no doubt assisted in formulating the following recommendation:
Should Mr Monfries be found fit to plead, it is recommended that his lawyer assist him in the court room (which comprises complex verbal information) by providing simple interpretations of the proceedings and directing his attention to this. Visual aids may be useful when providing assistance.
The hearing
The investigation was conducted as an oral hearing on 2 February 2010, during which the above reports were received.
Dr George gave oral evidence and was cross-examined by counsel for the Crown and for Mr Monfries.
In answer to questions from the Crown prosecutor, Mr C Todd, Dr George explained how he conducted his assessment, “a fairly standard format that I follow”. This includes obtaining a history and a standard psychiatric interview including a forensic history, during which he conducts a mental state examination. He also has access to the computerised information about the examinee maintained by ACT Health.
He noted that he had access to the charges and statement of facts supporting them and to Mr Monfries’ prior criminal record, which influenced his assessment of matters such as the risk of recidivism. It is also relevant to the question of fitness to plead, especially where he has at earlier times been accepted as fit to plead.
He noted that he felt the unfitness to plead he considered Mr Monfries displayed was significantly related to his short-term memory. He acknowledged, however, that were matters to be repeated, and repeated in simple language, Mr Monfries would be able to understand what was going on.
Dr George then explained that, when assessing fitness to plead, he asks a series of questions based on the statutory criteria (see [4] above). In doing so, he attempts to make sure that the concepts are explained clearly and then to ascertain whether there is an understanding of them. He suggested, however, that he did not do this with all the charges that Mr Monfries faced as he “may have been influenced by just the way he was relating to me, by perhaps some preconceptions ... with respect to his intellectual capacity and ... by the fact that he had a number of disorders that could certainly impact on his intellectual capacity.” He agreed, however, that he was satisfied that Mr Monfries “had a reasonable appreciation of what he was facing.”
He also accepted that he had found Mr Monfries capable of exercising his right to challenge a juror.
To determine his understanding of court processes, Dr George said that he gave Mr Monfries a relatively simple scenario and received “a very inappropriate answer”. Dr George was, however, somewhat resistant to taking into account the prior appearances of Mr Monfries in court. He did not believe, especially in the light of Mr Monfries’ temporal lobe epilepsy, that he “would’ve necessarily had a good understanding of the process of the court.”. He explained the epilepsy as involving:
visual hallucinations, déjà vu phenomena, they can get what’s called partial seizures so they get sudden episodes of anxiety that are totally unprecipitated, come out of the blue, they can have very severe sudden depressive feelings almost to suicidal extent, that come out of the blue and can last for quite some time, or sometimes they have abnormal vocalisations and they have other associated neurological signs like a lot of excessive twitching at night time and things like that. So that if someone has a temporal lobe seizure it may not be totally apparent to the people around them, and often they can act somewhat automatically.
...
if he had any seizure activity associated with temporal lobe epilepsy he wouldn’t be able to attend and concentrate, or he might appear somewhat distracted or he may not – he may ask for questions to be repeated.
Thus, the epilepsy could affect the ability to concentrate on the proceedings, though medication would assist the ability to concentrate, as well as improve short-term memory.
Thus, Dr George strongly recommended that appropriate testing with EEG be carried out to investigate whether Mr Monfries still suffered from epilepsy.
Dr George also noted that Mr Monfries said that he could not really talk to his lawyer, but agreed that he had not really explored that comment, and, in particular, what it was that prevented Mr Monfries from doing so. He said this was in part because Mr Monfries’ answers to his questions “were very basic”. He considered that Mr Monfries “wouldn’t necessarily engage with [his legal counsel]”.
He was asked questions about Mr Monfries’ memory. He was also questioned further about the prior court appearances of Mr Monfries and agreed that this “repetition would actually help his understanding, over time, of court processes, to some degree”.
Dr George was also asked about his further examination following his receipt of the Neuropsychological Report. He agreed that he had accepted the answers that Mr Monfries had given him and had not explored them much further. Indeed, he said that he did not go through the criteria with Mr Monfries in much more detail on that occasion.
He appeared to accept that the Report was support for a finding that Mr Monfries was fit to plead if the proceedings were carefully explained. His concern, however, was that his likely epilepsy would render his participation very problematic. As he put it, “the temporal lobe epilepsy really is the fly in the ointment.” Thus, he made the recommendation that Mr Monfries be tested through an EEG examination, preferably a sleep-deprived examination. He also said that his concerns about the understanding Mr Monfries had of some of the criteria was related to the issue of epilepsy which “could be a factor that would affect his cognitions and understanding.”
He also accepted that his initial assessments were modified by the findings in the neuropsychological assessment that the deficits he identified which led to his finding of unfitness may be able to be accommodated with certain assistance. That, however, depended on the temporal lobe epilepsy.
He also confirmed that, though Mr Monfries was of “low average intellectual function and average perceptual reason and function, with an IQ of around 80, there was no evidence of mental retardation.”
In answer to some questions from Mr R Thomas, counsel for Mr Monfries, Dr George agreed that to permit Mr Monfries to follow proceedings would require “a slowing of the process and a giving of some form of discussion with Mr Monfries about what will be happening in very simple terms.” This was because of his cognitive deficit, resulting in a problem with sophisticated or complex words and the ordinary discourse of daily life. He was asked further questions about that and stated that Mr Monfries could understand most of the questions asked but that his answers were simplified, concrete, never embellished.
Dr George also answered that he had been involved in court proceedings and trials. He indicated that he had a good understanding of counsel’s role and that it would be difficult for counsel to carry out the role of assisting Mr Monfries in understanding what was happening as a dual role. Thus, his recommendation was that there be another person to carry out this role.
He stated that Mr Monfries engaged in concrete rather than abstract reasoning, though he had some perceptual ability. Thus, the process of assisting Mr Monfries would be possibly quite slow, because it was a simplification process, not analogous to that provided by an interpreter. This would be slower because of his concentration difficulties from his temporal lobe epilepsy.
He also agreed that if Mr Monfries were to be taking anti-convulsive medication that he may have no epileptiform activity at all.
Mr Todd asked some further questions in which Dr George said that on the whole he had accepted the responses given by Mr Monfries because he was aware of his “significant cognitive impairment, that he is a concrete thinker, that he does have problems with encoding and conceptualisation...”
He accepted, however, that he could have explored the criterion of ability to instruct lawyers better but said:
I guess by the time I got to this stage, I’d drawn some form of conclusion with respect to his ability to meet these criteria, such as the problem with understanding the proceedings of the court, or the process of the court. And also being aware of his history as well.
Submissions
Mr Todd was critical of Dr George’s Reports as, he submitted, they did not address the statutory criteria, leaving the court with inadequate material. I have referred to some of these deficits above (at [26] and [27]). In particular, on a critical issue of whether Mr Monfries could follow the proceedings, his evidence did not directly address the required criterion.
Mr Todd accepted that I had, however, now heard oral evidence from Dr George who had expanded on his Reports but submitted that the Reports, even with the oral evidence to explain and expand on them, were not a sure basis for a decision that Mr Monfries was unfit to plead because of these errors.
He further submitted that the clear finding that I could make that Mr Monfries had cognitive deficits was insufficient for a finding of fitness to plead and that more was required, especially insofar as the statutory criteria were concerned. Thus, for example, in the circumstances of Mr Monfries, I could rely on the fact that he had significant experience in court proceedings, as his criminal record showed. This would, as Dr George had acknowledged, assist in Mr Monfries learning of the process and, therefore, becoming more comprehending.
Mr Todd further noted that, at least at that stage, Mr Monfries was not facing a full trial, for he had been committed for sentence and he submitted that I could take account of the nature of the proceedings which would be less complex and require less sophisticated understanding.
Mr Todd also submitted that there were mechanisms that could be implemented, to ensure that Mr Monfries followed the proceedings, which seemed to be the most significant deficit in the fitness of Mr Monfries. Thus, what Dr George called a mentor could be available: this could be an instructing solicitor or paralegal. The proceedings could be taken slowly and with time to ensure Mr Monfries continued to understand.
He next referred to the possibility of medication to address the epilepsy. This clearly would overcome some of the problems Dr George had identified.
He submitted that if, with medication, Mr Monfries was to be considered fit to plead, that he did not take his medication, would not make him unfit; it was the same kind of position where a person otherwise fit chose to ignore, or perhaps sleep through, the proceedings. I am not sure that this is correct.
Finally, he submitted that there was a need for further exploration of relevant issues; in particular, an EEG should be undertaken and investigation of whether a mentor would be available. A further report should then be provided.
Mr Thomas referred me to several cases, including R v Chanthasaeng (2008) 7 DCLR (NSW) 158, R v Holt (2009) 9 DCLR (NSW) 87 and R v Mailes (2001) 53 NSWLR 251. In the latter, Wood CJ at CL said (at 278-9; [143]):
The difference between comprehension of the proceedings and ability to communicate with the accused’s legal advisers, on the one hand, and the ability to conduct a defence wisely or even rationally, on the other hand, was recognised, the test of fitness being concerned with the former and not with the latter. In R v Robertson [[1968] 3 All ER 557], the Court of Appeal ruled, in the case of an accused suffering from a paranoid illness, who was able to comprehend the proceedings, but whose thinking was delusional, that ‘the mere fact that the appellant was not capable of doing things which were in his own best interests were insufficient ground for a jury to return a finding of disability.’ (Original emphasis)
The underlying concept, he submitted, was fairness in the trial, a proposition that can readily be accepted.
Mr Thomas accepted that Dr George’s Reports were deficient, but submitted that his assessment, conducted by a well-experienced psychiatrist, as he was, was reliable as to the essence of the issue. He noted Mr Monfries’ disabilities of cognitive deficit, Asperger’s Syndrome and epilepsy and submitted that these so impaired his ability to follow the proceedings and instruct his lawyer that this was sufficient for a finding of unfitness.
He submitted that the common law does not have a mechanism for the required mentor, as, for example, it has for interpreters. There is no power to require one to be provided, even if from the instructing solicitors, retained by Mr Monfries.
He also submitted that the fitness was for trial and that there was no “sub-category” option, namely a sentencing hearing which required a lesser or different test of fitness to plead. He pointed out that even in sentencing proceedings, this may involve quite complex evidence such as in psychiatric reports.
He finally submitted that the epilepsy made the position of any mentor a more complex one, for the person would need not only legal skills and a good understanding of the court processes but of psychiatry because of the need to monitor the epilepsy and possible seizures.
Further proceedings
I considered at that stage that there was more information that I required. I said:
Well, I think there’s some homework to be done ... my provisional view is this, that on the state of the evidence, if appropriate arrangements can be made, Mr Monfries is not unfit to plead. That’s a provisional view.
But, appropriate arrangements are the key, and so your homework is to find out from your instructors whether they can provide someone, a lawyer or an experienced senior paralegal, who could sit or could spend time with Mr Monfries prior to the sentencing proceedings and explain to him all relevant documentary material that ... will be provided, and then sit with him during the sentence and explain what’s going on
Mr Todd, your homework is to make appropriate inquiries of corrective services, or the director of ... corrections health, Professor Levy ...
...
[a]s to whether an EEG as recommended by Dr George, presumably under the supervision of a neurologist, can be undertaken and appropriate medication prescribed. And I might need – I’m not directing at this stage but I might need some evidence about that, so someone might need to come and give evidence about – because Dr George was hesitant about what the value of medicine would be and all the rest of it.
The proceedings were then adjourned.
A copy of a letter from the Aboriginal Legal Service (NSW/ACT) Ltd dated 17 February 2010 to Mr Thomas was subsequently provided to me. In that, it was said that the proposed mentor would not be available. It further said:
... it would not be the role of the defence to provide such a person. Indeed it is at the core of the need for an investigation to determine if someone is fit to plead. In our view, it is outside the boundary of the present legal system ...
It simply goes beyond a simple language or signing interpretation (both of which services when required being provided by either the court or the prosecuting authority[)].
Further we feel that the use of such a mentor erodes the protection provided to persons who are otherwise found unfit to plead. In our view once they are found unfit to plead they are precisely that and cannot be found to be unfit but.
An EEG test was completed in respect of Mr Monfries on 2 March 2010. Ultimately a report of Dr George dated 14 April 2010 was provided and tendered. In it, Dr George noted that a sleep-deprived EEG was performed to rule out ongoing evidence of temporal lobe epilepsy or any other form of epilepsy. He reported that the results were within normal limits. He noted there was a 10% chance of providing a false negative. He concluded, however, that “there is no obvious ongoing epileptiform abnormality at present.” This removed a major obstacle to his finding that Mr Monfries was unfit to plead.
He then undertook a further fitness to plead assessment. On this occasion, he used the actual statutory criteria. These were:
(a) Is he able to understand the nature of the charge?
Dr George was required to reframe the charge in simple terms, but concluded that Mr Monfries did understand the nature of the charges he was facing.
(b) Is he able to enter a plea to the charge and exercise the right to challenge jurors on the jury?
Clearly, from the answers given to Dr George, Mr Monfries was able to enter a plea to the charge.
The role of a jury was explained in simple terms and a scenario was given to him. He related the role of the jury to the juries he had seen on television programs and understood that its role was to assess whether the person was “either innocent or not innocent”. While a strict jurist would wish that to have been articulated in the opposite way, guilty or not guilty, the effect was adequate.
Again, a scenario was presented as to jury challenge and the response made by Mr Monfries showed he had an understanding of how he may challenge a juror on the jury.
(c) Is he able to understand that the proceeding is an enquiry about whether he had committed the offence?
Again, Dr George was able to find that, with a simple explanation, Mr Monfries had an adequate understanding of this issue.
(d) Is he able to follow the course of the proceeding?
Mr Monfries complained of distraction in the court and that he did not pay attention. He also said he could not understand “big words” and this may mean he would “lose the context of what was being said.” He did understand, however, the way in which the proceedings were conducted and the part played by the participants, including the jury, the judge, the prosecutor and his lawyers. Dr George concluded that “[i]n basic terms he did appear to have a tacit understanding of this criterion.”
As Dr George said, this is the most difficult criterion to assess. It is helpful, however, to be reminded of the High Court’s approach to it as set out in the reasons of the plurality in Ngatayi v The Queen (1980) 147 CLR 1 (where they said (at 8)):
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 [[1958] VR 45, at p 48] that the test needs to be applied ‘in a reasonable and commonsense fashion’.
Applying it in that way, it appears that Mr Monfries meets this criterion.
(e) Is he able to understand the substantial effect of any evidence that may be given in support of the prosecution?
Dr George’s questions here were not quite to the point, in that they appeared directed to process rather than substance. Given, however, the other evidence I have, I am able to accept his conclusion that Mr Monfries had a basic capacity to understand the substantial effect of the evidence.
Again, the context of this criterion is partly given in the following comment by the plurality in Ngatayi v The Queen (at 8):
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 [[1968] 1 W.L.R. 1767; [1968] 3 All E.R. 557] and Reg v Berry [(1977) 66 Cr. App. R. 156, at p.158], and accords with commonsense.
(f) Is he able to give instructions to his lawyers?
Dr George reported that Mr Monfries said:
in genera [sic] terms, he would tend to listen to what his solicitor said and would tend to go along with whatever was suggested. However, he did give the impression that he would have the capacity to say whether he may have committed an offence or part of an offence.
He said he would be able to speak to his solicitor, though would not understand the legal implications of the situation, though it seems to me, in the context, that this meant a lack of understanding only without explanation in simple terms.
Dr George then concluded that “[i]n the present circumstances, I would find Mr Monfries Fit to Plead”, though with the qualification of “using a very basic level of communication” but in these terms, Mr Monfries was able to meet the criteria for being found fit to plead.
Neither party sought to make further submissions on this further report.
Consideration
Baragwanath J, in the High Court of New Zealand, helpfully summarised the challenge of fitness to plead, especially in the context of intellectual disability, when his Honour said in P v Police [2007] 2 NZLR 528 (at 530; [2]):
The doctrine of fitness to plead has always been a confused area of law in New Zealand and elsewhere. That is because of what may be expressed as a ‘trilemma’. First, that society must be protected from antisocial conduct and a major means of doing so is the criminal law, so the threshold for criminal competence has been kept low. Secondly, that the developing recognition of the entitlement of every person to be treated with dignity requires that individual autonomy to make and be answerable for decisions be respected as far as practicable. Findings of lack of autonomy and fitness to plead are not lightly made. Thirdly, that the same right to dignity requires that both criminal liability and liability to face trial be in ratio to competence to make relevant decisions, so the test of fitness must not be too high. (Footnotes omitted).
In this case, the concerns originally expressed at the hearing of the fitness to plead investigation have been largely dispelled by the testing of the EEG examination which has now excluded the difficulties that the temporal lobe epilepsy would have created. That is a major difficulty that has been overcome.
What really is left is the question of whether Mr Monfries can follow the proceedings and the evidence to the relevant degree.
Much discussion was directed to what Dr George described as a “mentor”. In this case, it seems to me, perhaps unlike the case of R v Monaghan (No 2) [2011] ACTSC 62, this does not, in fact, mean much more than his solicitor and barrister, for they would have, it seems to me, a duty to ensure that Mr Monfries has an understanding of what is happening in court.
This was clearly recognised by the High Court when the plurality said in Ngatayi v The Queen (at 9):
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)
To the same effect it was what 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. (Original emphasis)
Of course, counsel and instructor do not play the role of an interpreter but they clearly have an obligation to ensure that their client understands the proceedings, in the same way that the client understands the advice given: Dutfield v Gilbert H Stephens and Sons (1988) 18 Fam Law 473 (at 474). That different explanations or levels of explanation are required for different clients is also well understood: Pickersgill and Anor v Riley (Jersey) [2004] UKPC 14 (at [7]).
The duty is, of course, not all to be borne by the lawyers for Mr Monfries, though they will be integral. Special arrangements can, sometimes at the request of his lawyers, be implemented.
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; and
·the jury should be given directions as to the demeanour of the accused.
Although ultimately Studdert J held in that case that the accused there was unfit to plead, his Honour did not suggest any of these measures were inappropriate or unable to be implemented.
It was suggested by Mr Thomas that the fact that the proceedings would be sentencing proceedings and not a full trial was irrelevant. I do not find that so. As it is clear that the level of complexity of the charge is relevant (see R v Stevens (2010) 107 SASR 456 (at 468; [57])) and the length of the trial is relevant (Kesavarajah v The Queen (1994) 181 CLR 230 (at 245-6)), so the nature and complexity of the proceedings is also relevant.
Of course, while the initial charges are all to be dealt with as pleas of guilty, I am aware that, at least at this stage, there is a charge laid this year that is to be a trial as noted above (at [10]).
It does not seem to me that I need to consider each criterion in detail. In the circumstances, the real issue identified by the parties was whether Mr Monfries could follow the substantial effect of evidence, follow the course of the proceedings and instruct his lawyers. The most significant limitation on Mr Monfries’ capacity to meet those criteria, thought to be caused by temporal lobe epilepsy, has been removed with the results provided by the more recent testing.
I am satisfied from the whole of the evidence that Mr Monfries does meet the other criteria for fitness to plead.
The cognitive deficits and limited understanding are really now the only issues. I do not consider that, in the circumstances, the regime I directed to be implemented in R v Monaghan (No 2) is necessary, but I do note that care needs to be taken that special measures, if required during the proceedings such as set out above (at [101] and [102]) are taken.
Those, really, go to the fairness of the proceedings for, if they are conducted in that fair way, I am satisfied that Mr Monfries is fit to plead.
I certify that the preceding one-hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 21 December 2011
Counsel for the Crown: Mr C Todd
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr R Thomas
Solicitor for the defendant: Aboriginal Legal Service (NSW/ACT) Ltd
Date of hearing: 2 February 2010
Date of judgment: 21 December 2011
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