R v Shane Muller
[2013] ACTSC 154
•9 August 2013
R v SHANE MULLER
[2013] ACTSC 154 (9 August 2013)
CRIMINAL LAW – Fitness to Plead – whether accused fit to plead – assessment proceeded on basis of criteria in R v Presser [1958] VR 45 – criteria in R v Presser not substantially different from criteria set out in s 311 Crimes Act 1900 (ACT) – criteria applied – wrong to assume that mental impairment affecting ability to fully comprehend: the evidence, importance of pieces of evidence in the context of trial, and ability to fully participate in trial, rendered nugatory by apparent lack of complexity of allegations – accused’s intellectual deficits possibly accommodated in part at certain stages of trial, but at others would be laborious or impossible – whether Court satisfied on balance of probabilities accused unfit to plead – on balance of probabilities accused not fit to plead
Crimes Act1900 (ACT), ss 311, 312, 314(3), 315A(1)(b)(ii); div 3.2
R v Presser [1958] VR 45
No. SCC 134 of 2012
Judge: Burns J
Supreme Court of the ACT
Date: 9 August 2013
IN THE SUPREME COURT OF THE )
) No. SCC 134 of 2012
AUSTRALIAN CAPITAL TERRITORY )
R
v
SHANE MULLER
ORDER
Judge: Burns J
Date: 9 August 2013
Place: Canberra
THE COURT ORDERS THAT:
The accused is not fit to plead.
On 14 June 2012, the accused was committed to this Court for trial on a number of charges alleging sexual offences. An indictment has been filed by the Crown, but the accused has not yet been arraigned.
On 2 August 2012, I was satisfied that there was a real and substantial question about the accused’s fitness to plead: s 314(3) Crimes Act1900 (ACT) (the Act). I reserved the question of his fitness to plead for investigation under div 13.2 of the Act. On that date I also made an order under s 315A(1)(b)(ii) of the Act requiring the accused to be examined by a psychiatrist or other health practitioner. Unfortunately, that order was not forwarded by the Registry to the appropriate authorities, so that it became necessary to vacate the proposed date for the hearing of the question of the accused’s fitness to plead, and to make a further order under s 315A(1)(b)(ii). Further orders were made in chambers on 22 November 2012 to facilitate the accused being examined by a psychiatrist.
Hearing dates of 23 November 2012, 14 December 2012 and 21 February 2013 had to be vacated, and the hearing proceeded on 17 April 2013, with the parties filing written submissions thereafter.
Dr Anthony Barker, a consultant psychiatrist for Forensic Services, Mental Health ACT, assessed the accused on 3 January 2013. He provided a report dated 7 January 2013, and also gave evidence on 17 April 2013.
In his report, Dr Barker approached the question of the accused’s fitness to plead on the basis of the criteria set out in R v Presser [1958] VR 45, and not on the criteria set out in s 311 of the Act. It seems to me, however, that there is no real difference between the criteria as expressed in R v Presser, and as set out in s 311. I will approach the issue on the basis of the criteria set out in s 311, and will adapt (where necessary) Dr Barker’s opinions to that framework.
Section 311 of the Act provides:
311 When a person is unfit to plead
(1) A person is unfit to plead to a charge if a 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 REPORT OF DR BARKER
In his report, Dr Barker expressed the view that, on mental state examination, the accused’s cognitive abilities “appeared impaired”, consistent with a degree of intellectual disability. He thought the accused appeared to have difficulty providing explanations of “complex or abstract concepts”.
Dr Barker believed the accused was able to understand the nature of the charges he was facing.
The accused demonstrated difficulty in understanding the concept of entering a plea to a charge, apparently confusing the concepts of charging and incarceration. He expressed the view that if someone pleads guilty they are sent to gaol, but they are not sent to gaol if they plead not guilty. He did not appear to have any understanding of the particular legal merits of different plea options.
Dr Barker considered that, initially at least, the accused did not understand the concept of a jury, but after some explanation of the concept by Dr Barker he appeared to understand it. The accused indicated he would be too scared to exercise his right to challenge jurors, and did not appear to understand how exercising this right could be helpful to his case.
Dr Barker thought the accused appeared to understand the role of the judge, but was uncertain about, or confused as to, the roles of defence and prosecuting counsel. He had a general understanding that the court proceedings were related to the offences with which he is charged.
The accused told Dr Barker he was uncertain whether he would be able to follow court proceedings. Dr Barker thought this was consistent with his observation of the accused, who appeared to have difficulty discussing complex or abstract concepts, or weighing up the merits of different options. In addition, the accused tended to indicate that he understood matters Dr Barker discussed with him, when additional questioning revealed that he did not understand, or had an incomplete understanding, of those matters.
Dr Barker stated that the accused appeared to have some understanding that evidence may be presented at the trial, but he was unsure how this may occur, or how the evidence may be examined. The accused displayed considerable difficulty with comprehension if matters were not presented slowly and in fairly basic terms, so that Dr Barker had concerns about his ability to comprehend the substantial effect of evidence against him.
Dr Barker noted that the accused claimed his memory was generally poor, and that his memory of the alleged offences, in particular, was poor. Dr Barker was concerned about the accused’s general level of capacity regarding legal matters. He believed the accused could comprehend simple matters that are simplified and explained to him in detail, but lacks the ability to understand more complex matters, or abstract concepts. He thought that the accused’s greatest deficit was his inability to appropriately weigh-up options and made a considered and reasonable judgment.
Dr Barker considered that the accused was not fit to plead, and did not expect that he would become fit to plead within the next 12 months.
DR BARKER’S EVIDENCE IN COURT
Dr Barker was cross-examined by both the Crown and counsel for the accused. In his evidence Dr Barker said the accused had deficits in a number of areas, particularly attention, memory and abstract thought. With regard to memory, the accused’s impairment was apparently confined to short term memory, with no difficulty being observed in his long term memory. In particular, Dr Barker had no concerns about the accused’s ability to remember the events surrounding the charges.
Dr Barker stated that the accused could have little difficulty in providing an account of events, but he would have difficulty in giving an appraisal of the significance of events, or their interpretation. He has difficulties in engaging in “higher order thinking” to understand the significance of information.
In cross-examination by the Crown, Dr Barker accepted that the accused may be able to understand the consequences of a plea if they were explained to him in simple language. It was also quite possible that he may be able to exercise his right to challenge jurors if assisted by a lawyer.
The Crown pointed to the nature of the case against the accused, and suggested to Dr Barker that it was not complex. Dr Barker said:
I guess it depends on the nature of the proceedings, of how the inquiry occurs, whether complex questions are posed to witnesses. Say, for example, if hypothetical situations were posed I suspect that he would have considerable difficulty with understanding that. And whether there are any elements of higher order thinking that involve attempting to interpret what the consequences [of] certain information or certain outcomes might be.
Dr Barker was then asked:
Do you understand that in his ability to follow the course of the proceedings he just has to understand what is going on in court in a general sense? He doesn’t have to understand all the purpose or the various court formalities?
---Absolutely. No, I do understand that he doesn’t need to understand the formalities. I guess where I’m a little less clear, your Honour, about the nature of whether somebody needs to follow the course of proceedings is whether they simply need to, on a very basic level, understand the language that is being used, that they understand the words, or whether, on a deeper level, they need to understand the meaning and the consequence of those and then relay instructions to their counsel as to what their wishes might be in that regard, whether they may have an opinion as to the evidence.Are you saying then that you’d have concerns about whether he would be able to have deep level of the understanding of the information?---Deeper. I have concerns about whether he could be an active participant in the process.
Later Dr Barker gave the following evidence:
[The Crown Prosecutor]: and just to clarify, doctor, the criteria that I’m looking at is the ability for Mr Muller to follow the course in proceedings. So, given – if you accept that from me that that’s how it would be expected the matter would proceed do you see then with that background that he would have difficulties or that he would be unable to follow the course of the proceedings in a general sense?---I guess that’s the difficulty in defining the general sense in that exactly what level of involvement is required from the defendant. Whether he’s required to simply prepare a defence and understand some of the language that’s used by the witnesses or whether he’s then expected on a moment by moment basis to be able to interpret what they’re saying and possibly then feedback instructions to his counsel.
Again, he would need to – would you agree that he’d be able to follow what the witnesses say about an event that he experienced?---He would probably be able to follow most of what they’re saying but perhaps not all. It would depend on how they presented the evidence.
And for those parts that he would have been unable to follow that would be assisted by him having someone explaining to him and saying, look, I didn’t understand this bit and someone explaining it to him in simple terms what occurred?---Quite possibly. I guess one of my concerns is that he, of his own accord, probably wouldn’t bring that to attention [sic] is that he has a tendency to answer in the affirmative when asked whether or not he understands something and then on further enquiry when asked to explain whether or not he understood the impact he can’t.
During cross-examination by counsel for the accused, Dr Barker stated the accused has difficulty in interpreting questions or events beyond a “concrete level”. He felt the accused would have difficulty adjusting to events as they emerged during the trial, such as following responses by witnesses to questions in cross-examination.
At the conclusion of his evidence, Dr Barker stated that he remained of the opinion that the accused was unfit to be tried.
CONCLUSION
Much of the effort of the Crown on the fitness to plead hearing was directed towards establishing that the events the subject of the charges are not complex. In my opinion, it is not always helpful or appropriate to focus solely on the nature of the acts alleged against an accused in determining whether any disorder or impairment of their mental processes renders them unfit to be tried. Most alleged crimes involve physical acts that are, on their face, simple enough. But whilst “what happened” is important in the context of defending criminal charges, so are questions of why they occurred. Even the apparently simplest cases may involve complex chains of causation. It would be wrong to assume that a mental impairment that affects an accused’s ability to fully comprehend the evidence against him, how particular pieces of evidence may be important in the context of the trial, and his ability to fully participate in the trial are rendered nugatory by the apparent lack of complexity of the allegations against him. Of particular concern is the identified tendency of the accused to answer questions concerning his comprehension of events in the affirmative, whether he truly comprehends them or not, and the unlikelihood of him bringing up, of his own accord, difficulties in comprehension.
At some points during the trial the accused’s intellectual deficits could be accommodated by taking regular breaks so that his counsel could explain to him what was occurring, ensure he understood the evidence and its significance, and take instructions from him. As Dr Barker noted, that would be a potentially laborious process requiring his counsel to question the accused in some depth so that counsel could be confident that he truly understood the issues. However, that would not be possible at all points during the trial. For example, it would be all but impossible during the taking of evidence in chief from the accused, and utterly impossible during cross-examination.
There is a presumption that the accused is fit to be tried: s 312(1) Crimes Act1900 (ACT). Once the issue of fitness to plead is properly raised, no party bears an onus in relation to proving that the accused is, or is not, fit to plead. However, the effect of
s 312 is that the accused is presumed to be fit to plead unless the court is satisfied on the balance of probabilities that he is not so.
I am satisfied on the balance of probabilities that the accused is not fit to plead. His intellectual deficits, as described by Dr Barker, lead me to conclude that his mental processes are impaired to the extent that he cannot properly follow the course of the proceedings or understand the substantial effect of any evidence that may be given in support of the prosecution.
I will hear counsel on what ancillary orders should be made.
I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 9 August 2013
Counsel for the Crown: Mr T Hickey
Solicitor for the Crown: Director of Public Prosecutions
Counsel for the Accused: Mr M O’Brien
Solicitor for the Accused: Legal Aid ACT
Date of Hearing: 17 April 2013
Date of Judgment: 9 August 2013
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