R v Muldrock

[2024] NSWDC 107

District Court

New South Wales

Medium Neutral Citation:

R v Muldrock [2024] NSWDC 107

Hearing dates:

5 April 2024

Date of orders:

12 April 2024

Decision date:

12 April 2024

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [27]

Catchwords:

CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation

CRIME — Sexual offences — sexual intercourse without consent

Legislation Cited:

Crimes Act 1900 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited:

Fleming v The Queen (1998) 197 CLR 250

R v Presser [1958] VR 45

Category:

Principal judgment

Parties:

Rex (The Crown)
Derek Muldrock (The Offender)

Representation:

Counsel:
Watts for Muldrock
Hanna for the Crown

File Number(s):

2022/00061030

Publication restriction:

NA

JUDGMENT

1. Derek Muldrock (hereafter "the accused") as a result of events alleged to have occurred on 1 March 2022 was charged with a number of offences. Based on a charge certificate dated 15 September 2022 two matters are to proceed in this court. The first is a charge under section 112(2) of the Crimes Act alleging the offender did break and enter a dwelling and in the dwelling committed a serious indictable offence namely sexual assault in circumstances of aggravation namely that he knew there was a person present within the dwelling. In the alternative it is charged that on the same date he had sexual intercourse with the complainant without her consent and knowing she was not consenting.

2. The offender was arrested on 2 March 2022 and has remained in custody since that time. On 13 October 2023 he was committed for trial. On 4 December 2023 he was to be arraigned but that did not occur due to concerns raised as to his fitness.

3. On 4 December 2023 an order was made pursuant to section 40(1) and 42(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act (“the Act”) that a fitness enquiry be conducted.

4. The evidence in this hearing consisted of a Crown bundle which became exhibit A. It included the charge certificate dated 15 September 2022, a Crown case statement, a report of forensic psychiatrist Dr Adam Martin of 18 March 2024, a large amount of material said to have been considered by Dr Martin which are in essence historical psychiatric and health records of the accused dating back as far as the year 2000 ("the historical material") and the accused’s criminal history. The court was not taken to any part of this material apart from the report of Dr Martin with the court being invited to consider such of the historical material it might consider necessary to better understand Dr Martin’s report. The accused relied on a report of a consultant neuropsychologist Dr Sally McSwiggan dated 13 February 2023. At the outset it can be noted that both the Crown and the accused’s representatives are agreed that the reports of Dr Martin and Dr McSwiggan support a finding that the accused is unfit to be tried and further on the balance of probabilities during the 12 months after such a finding the accused may become fit to be tried for the matters of which he has been charged.

5. Should the court agree with that conclusion the accused will be referred to the Mental Health Review Tribunal for review and the exhibits in this matter will be forwarded to the Tribunal. In an effort to assist the tribunal it is noted that it was the view of the accused that the only evidence that is necessary for this hearing are the reports of Dr Martin and Dr McSwiggan, and that the Crown’s view that the historical material should be provided would seem to be one of an abundance of caution. The Tribunal of course will consider such matters as they consider appropriate.

GENERAL DIRECTIONS

6. In compliance with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and as required by the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250, the Court reminds itself of the following principles of law. As the question of the accused's fitness to plead has been raised, and as the matter is proceeding as a judge alone fitness trial, it becomes the duty and responsibility of the Court to consider whether the accused is fit to be tried on the charges. The Court directs itself that this proceeding is not adversarial. The Court directs itself that the onus of proof of the question of the person's unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence. The standard of proof is the balance of probabilities.

7. The Court acknowledges the submissions of the Crown and the submissions of the accused, to the effect of the joint position stated above. The Court notes that in no sense are those submissions evidence in the case. The Court notes that as the tribunal of fact, it is expected to use its individual qualities of reasoning, experience, understanding of people and human affairs and common sense.

8. The Court acknowledges the very important matters to be decided in this case. Important not only to the accused, but also to the whole community. The Court must, as a jury, act impartially, dispassionately and fearlessly. The Court must not let sympathy or emotion sway its judgment. As the sole judge of the question of the accused's fitness to be tried, the Court must not act capriciously or irrationally. The Court is obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the inquiry.

9. The Court reminds itself that it has long been a basis of our legal system that a person is entitled to a fair trial. One of the factors of that is the concept that persons should not be tried in their absence, and that they should have the opportunity to hear the evidence against them, and if they wish to respond to the accusations made against them. If, because of some impairment, an accused is not capable of understanding and participating in their trial, then there is a grave risk of unfairness. That is why this inquiry is taking place. It falls to the Court to determine on the following principles whether the accused is fit or unfit to stand trial. The Court also reminds itself of the findings that it is entitled to make. The Court is not asked to find affirmatively that the accused is fit, but only whether he has been shown to be unfit.

10. The Court further reminds itself that if it does not find the accused unfit to be tried, then the proceedings which are pending against the accused will recommence, or continue in accordance with the appropriate procedures of the criminal law. If, on the other hand, the Court finds that the accused is unfit to be tried, then he will not be tried. He will be referred to the Mental Health Review Tribunal. That tribunal will not review the decision of this Court, but will determine the status of the accused in the longer term.

11. The Court directs itself that the question is whether the accused, because of mental defect, fails to meet certain minimum standards beneath which the trial cannot be conducted without the possibility of unfairness or injustice to him: see R v Presser [1958] VR 45. The Court reminds itself, as established by that case, that the accused needs to be able:

1. to understand what it is that he is charged with.

2. to plead to the charge and to exercise his right of challenge.

3. to understand generally the nature of the proceedings; namely, that it is an inquiry as to whether he did what he is charged with.

4. 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.

5. to understand the substantial effect of any evidence that may be given against him, and needs to be able to make his defence or answer the charge.

6. where the accused has counsel, he needs to be able to do this through his counsel by giving any necessary instructions, and by letting his counsel know what his version of the facts is, and, if necessary, telling the Court what it is.

12. These factors are what are required by s36 of the Act.

13. The accused need not, of course, be conversant with court procedure, but he must have sufficient capacity to be able to decide what defence he will rely on, and to make his defence and his version of the facts known to the Court and to his counsel, if any.

14. Finally, the Court reminds itself that its determination of whether the accused is unfit to stand trial is to be determined on the balance of probabilities, and that the question that is to be determined is this: is it more probable than not that the accused is unfit to stand trial? If that is so, then the verdict will be unfit to stand trial. If the Court is unable to decide that the accused is unfit to be tried, then the verdict must be that he is not unfit to be tried. If the balance stands even, so that the Court is unable to say where the probabilities lie, then the verdict will be not unfit to stand trial.

15. The Court has had regard to the tendered material referred to above. Dr Martin interviewed the accused and in his report dated 18 March 2024 recorded the unusual presentation of the accused including his difficulty in answering relatively simple questions such as his age. When asked about his current treatment he denied taking medication and said “I’m just ADD” and “I have autism”. He denied any psychiatric history. He said he had a brain injury from a breech birth causing cognitive delay. He outlined his family consisting of his parents who had separated and an older brother and younger sister. He recounted various jobs he had. He told the doctor he had lost count of the number of times he had been in gaol and expressed ideas of being the victim of a corrupt police system and being regularly falsely accused.

16. The accused cognitively presented as alert. As to orientation he was unable to recall specific details in relation to time or dates. He struggled with basic arithmetic and basic questions of general knowledge.

17. A fitness assessment was carried out with reference to the criteria defined in section 36 of the Act and with regard to Presser. He knew he had been accused of, in his words, “licked a female’s private parts, I’m not into females I’m gay”. The doctor considered he understood what it meant to plead guilty or not guilty. He referred to the criminal proceedings process as corrupt. He described a jury as people to see if someone has or has not done a crime. When asked about his right to challenge a jury he made reference to lawyers being corrupt and said “the monies already been paid off especially corrupt little Lismore”.

18. The accused made reference to a lack of DNA and as to the complainant’s allegation said “obviously she needs money and was targeting me, it was a set up”. The doctor considered he appeared to have a reasonable understanding of the issue of consent.

19. Under the heading opinion Dr Martin stated the following:

1. The accused was able to give a detailed account of expressions of innocence and of persecutory ideas involving the police and the courts using relatively sophisticated language. This was at odds with his apparent problems with basic arithmetic and general knowledge. As to the conspiracy ideas it was unclear whether they were frankly delusional as seen in chronic mental illness such as schizophrenia or rather a self-serving contrived set of expressed ideas in the context of a history of sexual offending or somewhere in between. Dr Martin’s view was that there was a strong element of deliberate embellishment of cognitive deficits with the probable motivation of evoking sympathy or avoiding a negative legal outcome. It was then said that malingering is a diagnosis of exclusion and in the doctor’s view it would be important for the accused to be subject to further longitudinal assessment and management in order to clarify diagnostic issues.

2. The accused has an adequate understanding of the nature of the charges, what it means to plead, the general purpose of court, he can exert his right of challenge and has an adequate idea of evidentiary issues.

3. The accused’s extreme and paranoid sounding ideas in relation to the charges being “trumped up” and his allegations of extreme corrupt police conduct in a corrupt legal system raise a problematic issue of his capacity to make known a rational defence or reasonable version of events to his lawyer and the court if necessary. The doctors view was that the accused’s claims to have significant problems understanding basic issues is contrived and that the accused probably has the capacity to follow proceedings meaningfully. That said, the opinion expressed is that the capacity of the accused to adequately consider legal advice and give appropriate instructions has to be considered highly questionable. It was for that reason and whilst noting the fitness issues are complicated by a lack of clarity regarding the exact diagnosis and the reason the accused presents as he does, that is as to his degree of genuineness in his responses, that on balance in the opinion of the doctor the court will find him unfit to plead and stand trial at this time.

4. Relevantly to the current question, that is separate to any question of the potential defence of mental health or cognitive impairment, Dr Martin agreed with the view of Dr McSwiggan that the accused is unfit but there is a possibility he could become fit within the next 12 months.

20. Dr McSwiggan had available to her the historical material. As with Dr Martin the accused told her he was unsure of his age. The history given was broadly consistent with that given to Dr Martin. As with Dr Martin the same inconsistency of then using a sophisticated vocabulary was noted. So too were the expressed persecutory beliefs. A brief review was given of the various historical medical documents. This included in 2000 giving a history of “special schools”. There was an assessment of being in the borderline range of intellectual functioning. In 2008 it was said he generally comprehended the legal process. At that time he was considered fit to enter a plea by Dr Westmore, a forensic psychiatrist. Susan Hayes psychologist considered the accused met the criteria for intellectual disability (mild). In 2019 he was on the NDIS with diagnoses including intellectual disability (mild), ADHD, maladaptive sexualised behaviour and possible bipolar affective disorder. A 2019 report of psychologist Matthew Wagner considered the accused to be cognitively and emotionally impaired.

21. Dr McSwiggan expressed the view that the accused was likely exaggerating his intellectual disability and that his presentation was likely due to the nature of the evaluation.

22. As to the question of fitness the accused initially claimed he was unaware of the charges and then described them in detail. As with Dr Martin he had said he had not been advised by his lawyer in regards to what his plea would be. He comprehended the terms guilty and not guilty. He claimed to have no idea of a defended hearing. He was aware his lawyer “defends me”. When directly challenged on his level of engagement in the interview of fitness process the accused stated “well I’ve got a mental age of 10”. When asked about his role in the proceedings he said “I don’t understand this stuff”. The doctor states that the accused did not have an awareness of a jury which is a point of difference to what he told Dr Martin.

23. In a general sense the accused understood the concept of evidence and made reference to the DNA aspect. The accused made bizarre and outlandish persecutory statements about a conspiracy between the complainant, witnesses, police, lawyers (including his own) and the judge. When asked to provide more factual details of his defence focused on the material time the accused gave inconsistent versions which descended into bizarre statements about the complainant and her actions towards him.

24. Dr McSwiggan then made reference to section 36 of the Act and expressed the opinion that the accused was not capable of satisfying all the minimum criteria as to being fit to be tried. The reasons for that opinion were:

1. An extremely low to borderline range of intellectual functioning.

2. He comprehended a guilty plea and the alternative and could follow the course of the proceeding.

3. She doubted his ability to make a rational and informed decision in relation to his plea for he seemed to rely on a defence based on a conspiracy plan. These versions of events were considered to be made up stories rather than symptoms of psychosis. The persecutory claims were not consistent with the rest of his thought content. These made up stories will be inconsistent as he makes them up to suit the listener. Thus his instructions will likely be changeable.

4. The accused may be amenable to following the advice of his solicitor and would benefit from education about the legal process based on his charged events. For that reason he may become fit within the next 12 months.

25. The clear concurrence of opinion of the two doctors is that the accused is not presently fit to be tried or to enter a plea. The reasons for that are set out above. The striking feature about the evidence is that it is common ground the accused is being disingenuous as to his lack of ability to understand what is happening. As Dr McSwiggan stated the accused makes up stories to suit the listener. Perhaps somewhat sympathetically both doctors consider that this will impact on his ability to properly instruct his legal representatives to mount a defence and to decide what defence is to be relied upon by the accused to render him unfit at this stage to plea. That said both reports identify other features that contribute to the makeup of the accused including his historically recognised borderline intellectual functioning and intellectual disability (mild). It would be too simplistic to simply say he tells falsehoods to best present himself to whoever might be listening.

26. Taking into account the history of the accused as set out in the two reports and particularly that of Dr McSwiggan who helpfully made reference to the historical material I accept the conclusions reached by them both. In short and by reference to section 36 the accused is unfit to be tried because on the balance of probabilities it has been found that he cannot relevantly instruct his legal representatives so as to mount a defence and provide his version of the facts to that legal representative and to the court if necessary; nor decide what defence he will rely on and make that decision known to the person’s legal representative and the court. I further find that the accused may become fit for trial within the next 12 months.

Orders

27. The court will therefore make the orders in accordance with the proposed short minutes of order provided by the parties. Those orders are as follows:

1. Pursuant to section 49 (1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”) the accused, Derek Muldrock, is referred to the Mental Health Review Tribunal for review.

2. Pursuant to section 47(2)(b) of the act the proceedings on indictment are adjourned pending the determination of the tribunal.

3. Pursuant to section 47(2)(d) the accused be remanded in custody.

4. The exhibits tended in the fitness hearing are to be forwarded to the tribunal.

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Decision last updated: 15 April 2024