R v Sargent No. DCCRM-00-321

R v HELEN LEE SARGENT
[2002] SADC 58
Judge David
Criminal
Factual Background

The defendant was arraigned and pleaded not guilty to 8 charges of defrauding the Commonwealth. Six of those charges allege that she in conjunction with her husband was a partner in the business of Green and Gold Taxi Trucks. The Prosecution alleged that she was part of a process of taking money from the drivers of that business pursuant to requirements under the taxation system and instead of passing it on to the Australian Taxation Office she and her husband kept it. The other two charges relate to what can generally be described as Social Security fraud.
On six of those charges there had been a previous trial in this Court and the defendant was convicted. The matter went to the Court of Criminal Appeal who upheld the appeal against convictions and the matter came on for retrial of those 6 counts before me. The two counts involving Social Security fraud were added to the information.
During the trial before me at the end of the case for the Prosecution the defendant announced through her counsel that she herself would not be giving evidence but indicated that she would be calling a psychologist Dr Jack White. With the consent of the Prosecution a report from Dr Jack White was tendered to me for the purposes of discussing whether there was any inadmissible material in that report and if so resolve the inadmissible problems before Dr White was called. The contents of that report indicated quite clearly there was a doubt as to whether the defendant was fit to plead pursuant to section 269H of the Criminal Law Consolidation Act. Dr White in his report said that he considered section 269H and was of the view that her fitness to plead to the charges was highly questionable. Because of that information it was agreed that there should be a preliminary investigation as to whether there should be a full scale hearing concerning the defendant’s fitness to plead.
I looked into that question pursuant to section 269J(2)(b). During that preliminary investigation Dr Jack White gave evidence as did another psychologist Dr Michael Wood. Dr Michael Wood had provided a report pursuant to a request from the Court. At that stage both of them were cross-examined by Ms Davey for the Prosecution and both of them were of the view that at least one of the criteria set out in section 269H could not be fulfilled. Consequently they were of the opinion the defendant was unfit to stand trial.
Because that material was clearly before me I ordered an investigation into the defendant’s mental fitness to stand trial and I discharged the jury. Before I made that order Mr Lang of counsel for the defendant announced that he had no problems receiving instructions from the defendant and that the defendant did not wish to undertake an investigation into her fitness to plead and wanted the trial to continue. However I ruled that I had no choice but to order an investigation because of the material that was before me and pursuant to the responsibility I had under the legislation.
Although this is an inquiry on the question of the defendant’s mental fitness to stand trial pursuant to section 269H of the Criminal Law Consolidation Act if I found that the defendant was unfit to stand trial any consequences of that finding would be governed by section 20B of the Crimes Act, these being Commonwealth offences. It has been agreed between the parties that the Commonwealth legislation is silent as to the mechanisms as to how “unfitness to be tried” is to be decided. It is agreed that therefore the State legislation is to be followed. If I find that the defendant is mentally unfit to stand trial then the matter should proceed pursuant to section 20B of the Commonwealth Crimes Act. The present hearing was therefore conducted pursuant to section 269H of the Criminal Law Consolidation Act.
The defendant elected for this matter to be heard by Judge alone. The Prosecution consented to that course.
I remind myself that I must decide whether it has been established on the balance of probabilities that the defendant is mentally unfit to stand trial. I also remind myself that a person’s mental fitness to stand trial is to be presumed unless it is established after an investigation that the person is mentally unfit to stand trial. The criteria by which the issue is to be determined is set out in section 269H which reads as follows:-
“A person is mentally unfit to stand trial on a charge of an offence if the person’s mental processes are so disordered or impaired that the person is-
(a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.”
I heard evidence from a psychologist Dr Jack White. I also received in evidence a report which was tendered at the preliminary investigation before me. It is agreed that his evidence which he gave at the preliminary investigation would be evidence on this trial. I also received a report and heard evidence at the preliminary investigation from another psychologist Dr Michael Wood whose evidence has been adopted at this hearing. Dr Wood did not give evidence other than at the preliminary investigation. I received a report and heard evidence from Dr Craig Raeside, a psychiatrist, and I heard evidence from a Neuro psychologist Dr Mark William Reid. Other than those expert medical witnesses I also heard evidence from Lorna Margaret Gray who was a Customer Services Officer with Centrelink. In that capacity she had a number of dealings with the defendant and gave evidence about the defendant’s understanding concerning an application for a disability payment from Centerlink. In short Ms Gray’s evidence was that it appeared to her that the defendant had no difficulty in communicating with her and understanding the process.
A number of exhibits were tendered by the Prosecution that indicate on previous occasions when the defendant was communicating with either lay people or medical personnel there was never any suggestion that she had any cognitive problems. Those exhibits included medical files from Centrelink, her general practitioner’s notes, medical files from three hospital at which she had been admitted over a period of time and a medical report from a psychiatrist Dr Susan Cosoff. That report was in relation to a chronic pain disorder from which the defendant had been suffering. Also tendered in evidence was the transcript of evidence given by the defendant on a voir dire hearing at a previous trial before Judge Lunn. It is the Prosecution case that on a reading of that transcript it is clear that the defendant does not have any cognitive problems.
Before turning to the medical evidence that was presented to me I wish to briefly deal with those other areas of evidence. The purpose of the evidence in relation to Centrelink and the previous medical records of the defendant is to indicate that despite all of the contact that she has had with doctors and psychiatrists and people at Centrelink there is no hint that she is suffering from such cognitive problems that would bring her within the criteria of section 269H. The Prosecution argued that added to that is the transcript of the voir dire hearing (Exhibit P16) before Judge Lunn. Having read all that material thoroughly I am of the view that at best it can only be used by way of background material to put into context the evidence of the expert medical witnesses who were called before me. It is obvious that none of the other consultations with doctors or meetings with employees of Centrelink had anything to do with the specific question of fitness to plead at a criminal trial. Consultations with other medical people concerned other matters. Similarly the evidence before Judge Lunn could only be useful in a very general way. Although the answers to questions in that transcript indicate a certain comprehension of the topic that was discussed that evidence was about the admissibility of a particular document. Relevant questions in relation to section 269H were not considered. I therefore treat all of that material as useful background history which indicates to me that despite previous psychiatric and medical problems the defendant has not shown herself to be incapable of understanding relatively complex matters. However that background history is certainly not decisive in the matter presently before me. That is because specific questions in relation to the present issue were not addressed. I turn to the medical experts.
It is common ground between the four expert witnesses that the defendant is a woman in her early 40s, who is married and has four children and lives in what might be described as ordinary domestic circumstances. She has been involved in working in a number of businesses and has had many admissions to a number of hospitals. All of the expert witnesses before me agree that the defendant has a very low IQ and that she is of limited intellectual capacity. Dr White performed a number of tests including the “fitness interview test” and a number of other tests. He was of the opinion that the defendant was within the “mental retardation” range and around the bottom 0.3 percentile of the general population. He addressed the question of whether she was fit to plead pursuant to section 269H of the Criminal Law Consolidation Act. He was of the opinion that she was suffering from a mental impairment due to her being in the “mental retardation” range. He was of the opinion that in considering the criteria set out in section 269H she would be unable to understand or to respond rationally to the charges as required by section 269H(a). He was concerned that she did not understand the nature of fraud as she kept referring to being charged with some form of larceny. He agreed that he did not conduct any specific examination about the specific charges which the defendant was facing. However he was of the view that she would be unable to understand or respond rationally to the charges or the allegations on which the charges were based.
Dr Wood when examining the defendant found that she had a low IQ of 64. This put her in the bottom 1% of the population. He was of the view that she had very little comprehension and gave the opinion that she was unlikely to understand fully the nature of the charges as required by section 269H(a). He was also of the opinion that she would not be capable of exercising any rights as outlined in section 269H(b) and was also of the view that she would be unlikely to fulfil, except in very broad terms, the requirement of section 269H(c). This was because of her very limit intellectual capacity. When cross-examined by Ms Davey for the Prosecution he agreed that he was not familiar with the actual charges that the defendant was facing. He also agreed that with the assistance of a lawyer she would be able to understand the nature of the proceedings provided they were explained in a very simple way.
Dr Craig Raeside, an experienced psychiatrist, agreed with the assessment that the defendant had a low IQ causing her to have very limited intellectual ability. However he was of the opinion that the defendant was fit to stand trial despite her limited intellectual capacity and he was of the opinion that just because someone has a low intellectual capacity it does not necessarily mean that they are not capable or fit to stand trial (transcript page 89).
In my view the evidence of Dr Wood really does not come to grips with the criteria set out in section 269H but basically concentrated on her intellectual capacity. In contrast Dr Raeside’s evidence was that he himself interviewed the defendant and when doing that covered all of the requirements required by section 269H. He gave the following evidence:-
"QAre you saying she is impaired.
AShe has a mental disability, yes.
QBut you don’t go on and say ‘to the order of the fact that she is unable to do certain things’, is that what you are saying.
AEssentially, except that she is unable to do certain things. As I outlined about, for example, representing herself in court, she would be unable to do that.
QUnable to do certain things as set out in the Act.
AYes, except, for example – perhaps if I just go through them one by one.
QYes.
AHer ability to understand, respond rationally to the charge. What I was saying at the beginning was that, in a general discussion with her, she was able to understand that, and she responded rationally to that. If I asked her directly and put pressure on her, her ability to do so started to waiver a little bit. Again that comes back to what I was saying about understand versus appreciate. The second one about her procedural rights, I didn’t have any question about that. I think she understood and she was able to state her case fairly clearly in that regard. I think the one that’s really the question before the court is the third one, which is her ability to follow the course of proceedings. That’s what would be the difficulty. For example, if she was to be examined directly or cross-examined and, depending on how that occurred, her ability to follow the evidence or the course of proceedings, including her own evidence, is going to wax and wane and be variable, depending on what is actually happening, I think the court can assist in that matter by giving her frequent breaks and allowing her to confer with counsel.
QSo you think she is able to follow the evidence or the course of proceedings if allowances are made.
AAnd with significant assistance.”
Dr Mark William Reid, a Neuro psychologist, was called and gave evidence of an expert nature concerning the method that he would use in assessing a person’s fitness to stand trial. He did not see the defendant himself. He gave the opinion that the fact that the defendant had a low IQ does not of itself resolve the question of fitness to plead. He studied the notes from the Lyell McEwin Hospital, the Royal Adelaide Hospital and the Repatriation Hospital concerning the defendant and noted there was no reference anywhere there to cognitive functioning. He said that was significant. However as I have already indicated that at best can only be regarded as background material for the reasons that I have already given. He also said that the tests used by Dr White and Dr Wood would not be enough to form an opinion on the question of fitness or unfitness to plead. He was of the view that you would need more information rather than intelligence tests. He was of the opinion that although Dr White saw more material by virtue of the fact that he actually saw the defendant and conversed with her nevertheless he disagrees with Dr White’s view that just because she has a low IQ it would therefore follow almost inexorably that she would be unfit to plead.
The question before me is a very difficult one because the starting point is that the defendant is of limited intellectual capacity. However I am not persuaded that she comes within any of the criteria of section 269H. Although the opinions of Dr Wood and Dr White were helpful I was much more impressed with the methodology of Dr Raeside by virtue of the fact that he carefully considered each of the criteria pursuant to section 269H. In my view both Dr White and Dr Wood had a tendency to assume that it would follow that because of limited intellectual capacity she would not be able to pass the specific criteria set out in section 269H. I do not think they individually considered those criteria as thoroughly as Dr Raeside. I also bear in mind the other background material referred to in the way that I have already discussed. I prefer the evidence of Dr Raeside on the specific question of fitness to plead and I find that it has not been established on the balance of probabilities that the defendant is mentally unfit to stand trial.
I so rule.

[2002] SADC 58

17 May 2002