R v Shane Whitney
[2011] ACTSC 105
•23 June 2011
R v SHANE WHITNEY
[2011] ACTSC 105 (23 June 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to stand trial or becoming unfit during trial – accused found unfit to plead.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to stand trial or becoming unfit during trial – whether expert must address each paragraph of s 311 of the Crimes Act 1900 (ACT) – not necessary – court must find unfitness by reference to statutory criteria.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to stand trial or becoming unfit during trial – disability of deciding whether accused can elect for trial by judge alone.
Crimes Act 1900 (ACT), ss 311, 312, 314, 315A, 316, 318, Div 13.2
Criminal Code 2002 (ACT), ss 44, 326, 332, 347
Court Procedures Rules 2006 (ACT), r 4731, 4733
Mental Health (Treatment and Care) Act 1994 (ACT), Div 4.4
Brookbanks W and Simpson S, Psychiatry and the Law (LexisNexis: Wellington NZ, 2007)
R v Dashwood [1943] KB 1
R v Presser [1958] VR 45
Kesavarajah v The Queen (1994) 181 CLR 230
R v Fisher (No 2) [2011] ACTSC 100
R v Monaghan [2009] ACTSC 61
R v Polanski [1999] NSWSC 433
R v Rivett (1950) 34 Cr App Rep 87
R v Pritchard (1836) 7 Car & P 303; 173 ER 135
Egan, Hawkins and Burr v JG [2010] ACTSC 53
R v P (1991) 105 FLR 12
R v House [1986] 2 Qd R 415
No. SCC 58 of 2010
No. SCC 148 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 23 June 2011
IN THE SUPREME COURT OF THE )
) No. SCC 58 of 2010
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 148 of 2010
R
v
SHANE WHITNEY
ORDER
Judge: Refshauge J
Date: 23 June 2011
Place: Canberra
THE COURT FINDS THAT:
Shane Whitney is unfit to plead.
Shane Whitney is unlikely to become fit to plead within twelve months.
AND THE COURT ORDERS THAT:
A special hearing under s 318 of the Crimes Act 1900 (ACT) be conducted.
The parties be heard as to whether Shane Whitney is capable of making an election to have the special hearing to be a trial by a single judge without a jury or whether ACAT should be directed to appoint a guardian with powers under s 316 of the Crimes Act 1900 (ACT).
In 1942, the UK Court of Appeal noted in R v Dashwood [1943] KB 1 (at 4) that:
It is a cardinal principle of our law that no man can be tried for a crime unless he is in a mental condition to defend himself.
The treatment of those charged with offences who have a mental impairment has changed over the years, but in Australia reached a significant point when Smith J in R v Presser [1958] VR 45 (at 48) set out what his Honour considered were the minimum standards that a person’s capacity to understand and engage in the process of the criminal justice system must meet before the person can be fairly tried for an offence or offences. These standards were adopted by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230 (at 245). They have now been expressly enshrined in legislation in this Territory in s 311 of the Crimes Act 1900 (ACT) (the Crimes Act).
That section 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.
Where the court is satisfied that a real and substantial question exists about the fitness of an accused person to plead, it must reserve the question for investigation under Div 13.2 of the Crimes Act: s 314(3) of the Crimes Act. That investigation is not an adversarial proceeding in the ordinary sense though both prosecution and defence have a right to participate in it.
The court, however, can call evidence on its own initiative, require the accused to be examined by a psychiatrist or other health professional and require the results of that examination to be put before the court: s 315A(1) of the Crimes Act.
In this case, the accused, Shane Whitney, was committed for trial to this court on
11 February 2010 on a charge of dishonestly attempting to obtain a financial advantage by deception, an offence under s 332 of the Criminal Code 2002 (ACT) (the Criminal Code).
When Mr Whitney first appeared in this court following his committal (see rr 4731, 4733 of the Court Procedures Rules 2006 (ACT)), the question of his fitness to plead was raised and I made orders for his examination under s 315A(1) of the Crimes Act.
On 15 April 2010, he was further committed for trial to this court on five counts of obtaining property by deception, offences under s 326 of the Criminal Code. The consideration of Mr Whitney’s fitness to plead was extended to and included those matters on which he had been then committed.
Although it may not be necessary to find jurisdiction, it is desirable that an indictment be filed: R v Fisher (No 2) [2011] ACTSC 100.
An indictment was later filed containing the following counts (omitting the particulars of some counts):
FIRST COUNT: ... THAT on the 2nd day of November 2009 at Canberra in the Australian Capital Territory Shane Whitney used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine and because the other person accepted it as genuine dishonestly obtained a gain.
SECOND COUNT: AND FURTHER THAT on the 2nd day of November 2009 at Canberra aforesaid Shane Whitney used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine and because the other person accepted it as genuine dishonestly obtained a gain.
THIRD COUNT: AND FURTHER THAT on the 2nd day of November 2009 at Canberra aforesaid Shane Whitney used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine and because the other person accepted it as genuine dishonestly obtained a gain.
FOURTH COUNT: AND FURTHER THAT on the 2nd day of November 2009 at Canberra aforesaid Shane Whitney used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine and because the other person accepted it as genuine dishonestly obtained a gain.
FIFTH COUNT: AND FURTHER THAT on the 4th day of November 2009 at Canberra aforesaid Shane Whitney used a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine and because the other person accepted it as genuine dishonestly obtained a gain.
SIXTH COUNT: AND FURTHER THAT on the 6th day of November 2009 at Canberra aforesaid Shane Whitney attempted to use a false document, knowing that it was false, with the intention of dishonestly inducing someone else to accept it as genuine and because the other person accepted it as genuine dishonestly obtained a gain.
This indictment was presented ex officio because, rather than the offences for which he had been committed, it only contains counts of using a false document contrary to s 347 of the Criminal Code (including one count of attempt to commit such an offence under s 44 of the Criminal Code), no doubt as a result of further consideration of the facts on which the prosecution proposes to rely.
The fitness to plead investigation then proceeded on 1 October 2010. As I noted in R v Monaghan [2009] ACTSC 61 (at [18]), the real question is whether Mr Whitney is unfit to plead since s 312(1) of the Crimes Act presumes that a person is fit to plead.
A Report dated 30 March 2010 was prepared by Dr Grahame George, Consultant Psychiatrist, and tendered at the hearing.
Dr George examined Mr Whitney at the Alexander Maconochie Centre. Mr Whitney told him that “he had already been found ‘Unfit to Plead’ and in addition, he had been found ‘Not Guilty’ in relation to current charges”. Dr George reported that shortly into the examination “Mr Whitney became quite hostile and aggressive.” Indeed, the aggression escalated to the point of violence and the interview had to be terminated.
As a result, Dr George was not able to discuss each of the particular criteria set out in s 311 of the Crimes Act, but, in addition to his observations of Mr Whitney during the short interview, he did have some previous information available. He opined that “[Mr Whitney’s] presentation was such that at this point in time he could be easily assessed as being Unfit to Plead in relation to current charges.” He based this on Mr Whitney’s appearance as “irrational and confused during the interview”, his “formal thought disorder” and his “high degree of paranoia ... [which] appeared to fuel his aggression.”
Dr George also referred to an earlier Report of 7 January 2010, a copy of which he attached to his Report, and which he had prepared following an examination of Mr Whitney in which, on that occasion, he was co-operative.
Dr George described Mr Whitney’s presentation on that occasion in the following way:
Mr Whitney demonstrated marked formal thought disorder in the form of looseness of associations, tangential thinking and derailment. He exhibited some thought blocking at times as well.
...
During the course of the interview he admitted to auditory hallucinations. He said that he had probably suffered auditory hallucinations from childhood years through his adolescence to his adult years.
Dr George noted that Mr Whitney admitted to “a whole range” of psychotic symptoms during that earlier examination including “auditory hallucinations, ideas of reference, paranoid delusions and passivity phenomena”. He considered that Mr Whitney had no insight into the nature of his mental illness and recommended that he be subject to a Psychiatric Treatment Order under Div 4.4 of the Mental Health (Treatment and Care) Act 1994 (ACT).
As this earlier Report was not directed towards the issue of fitness to plead, Dr George came to no conclusions about that question but he considered that the prognosis for Mr Whitney was “guarded in view of the longevity of his symptoms”. He considered that he had a chronic mental illness.
Building on that earlier Report, Dr George in his Report of 30 March 2010, noted that Mr Whitney “continues to be unwell from a psychiatric view point.”
His opinion was as follows:
Despite the fact that I was not able to explore the different criteria associated with Fitness to Plead with Mr Whitney on this occasion, I believe there is little doubt that given his current mental state, he remains Unfit to Plead.
Mr Whitney appears, from the history taken by Dr George, to have experienced different psychotic phenomena from a young age. He had attended school to Year Nine, but left, he said, “... because I thought crime was the right way of life”.
He said that his family, including his six siblings (including half-siblings), “... turned against me like the rest of the world and the universe”.
He had not worked for many years and had experienced problems with the law from a young age. He estimated that he had spent up to twelve years in gaol. He is now thirty years of age. As at January 2010, he was living “on the streets” in Canberra.
He had had psychiatric hospital admissions. He had also abused illicit drugs, including cannabis, amphetamines, methamphetamines and cocaine.
At the investigation, Dr George was required by the prosecution for cross-examination and he gave oral evidence before me.
Dr George explained that, in the examination of persons where he had been asked to report on their fitness to plead, he conducted the examination by means of a structured standard form of examination, not using the more open-ended questions that would be used in a therapeutic situation. He had access to the clinical notes made by those treating Mr Whitney and also made use of them. It was, he said, important to make an accurate diagnosis and an assessment of Mr Whitney’s functional capacity.
He accepted that much of the material on which he based his opinion was self-reported but did check information on occasions. He said that he had to make a judgement about whether he was being told the truth, but, in these situations, it does not always “have a huge implication” to his diagnosis even if they do not tell him the truth.
In the case of Mr Whitney, he had the diagnosis of chronic paranoid schizophrenia, the onset, at an early age, of the psychotic symptoms of which Mr Whitney gave a good description. His diagnosis consisted of the following. He found that the symptoms described were “absolutely typical” of a person suffering psychosis. To this was added the disturbance of Mr Whitney’s affect emotional tone, a flattening or blunting of affect commonly found in persons with schizophrenia. Then he noted, additionally, a formal thought disorder, where the association between ideas are loose; Mr Whitney would lose track of what he was saying and never reach the point of it. He also had regard to the longitudinal history of his behaviour and illness and combined that with the deterioration in his functional capacity. These were the elements he used to diagnose that Mr Whitney suffered from schizophrenia.
He had scanned the clinical notes about Mr Whitney which showed how he had progressed and they tended to confirm the recurrence of symptoms over time. He noted that it was very hard to manufacture the symptoms he had described. The clinical notes confirmed his assessment of Mr Whitney.
Dr George said that he did not manage to progress through more than five or ten minutes of the second interview before Mr Whitney’s aggression became too extreme for the interview to continue. At this time, Mr Whitney was quite irrational and quite thought disordered.
Normally, Dr George would address each of the criteria referred to in s 311 of the Crimes Act and explain them in concrete terms to the person being examined. He would then assess whether the person was able to meet the capacity they required.
In the case of Mr Whitney, he found a background of paranoia and marked formal thought disorder in both interviews. He also noted that people with schizophrenia often have great difficulty in attending and concentrating, being disturbed by symptoms such as auditory hallucinations and ideas of reference. That did not mean that all people who experience schizophrenia are thereby unfit to plead. In the case of Mr Whitney, however, he was troubled by his symptoms on a reasonably continuous basis to which had to be added the formal thought disorder.
He noted that Mr Whitney’s explosive and irrational condition at the second interview had to be seen against the background that he had been on medication since January. Even in the first interview in January, however, he had not had, for example, a clear understanding of the charges he was facing.
While Mr Whitney was much better in January than he was in March, Dr George considered that even then he was not free from psychotic phenomena and had a lack of insight into his condition which comes with a lack of judgement.
In his view, with the formal thought disorder, Mr Whitney would have great difficulty in following court proceedings.
He was aware, apparently from the clinical notes, that Mr Whitney was, at the time of the hearing before me, a lot better than he had been in March, but he considered that he would not be free from the phenomena that had affected him continuously over time. He noted that he was on a quite large dose of his maintenance therapy. These phenomena caused Dr George to consider him unfit to plead, in particular to undermine his ability to follow the proceedings, instruct his lawyers and interact with the criminal justice system in a meaningful way.
Dr George opined that there may be times when Mr Whitney would be lucid but with the background of symptomatic issues, it was impossible to say that the phenomena were not intruding and inhibiting his proper participation in and understanding of the criminal proceedings. He was concerned that, even when well, Mr Whitney may be able to attend or concentrate but not for any extended period of time.
Dr George was asked if he could assess whether Mr Whitney was malingering. Apart from referring to the clinical notes which confirmed the diagnosis of schizophrenia, he pointed out that it would be necessary to look for secondary gain and that in “this sort of setting, very few, if any, people that I’ve seen malinger”. This is consistent with what Wood CJ at CL said in R v Polanski [1999] NSWSC 433 (at [60](i)).
Dr George said that, as he had not been able to complete the interview, there were several options: he could return later or he could consult a colleague for a second opinion. None of these were necessary in this case because Mr Whitney was obviously suffering from a chronic illness.
Mrs S Jowitt, who appeared for the prosecution, drew Dr George’s attention to the fact that Mr Whitney had been sitting quietly during the hearing, in stark contrast to his behaviour during the relevant interview, but, as Dr George said, “you can never draw any conclusions from somebody who remains silent”.
Mr M O’Brien, who appeared for Mr Whitney, suggested to Dr George that there were two groups of criteria in s 311, pars (a) to (c) dealing with fitness to plead and pars (d) to (f) dealing with fitness to stand trial. Dr George said he did not approach his task in this way but dealt with the criteria serially.
Dr George explained that the marked difference in Mr Whitney’s behaviour on the two occasions he interviewed him was partly attributable to the “consistent ... fact that it’s an illness that can be very unpredictable”.
He confirmed that, in his condition, Mr Whitney would “struggle enormously” if required to participate in a trial. He reiterated that, on both occasions he saw Mr Whitney, he suffered marked formal thought disorder, with irrational and illogical thoughts and difficulty in assimilating information. While he could understand parts of a trial, the psychotic phenomena would interfere with his understanding, especially in a longish trial such as this would be. This lack of understanding would not be obvious to a layperson unless Mr Whitney became very demonstrative. He felt that, even when well, he would struggle and noted that, even recently, when he had, according to the clinical notes, appeared better and was taking the highest prescribable dose of a very powerful antipsychotic drug, he was still struggling with perceptual ideas that he could not marry up with the reality of his situation.
The Submissions
Mrs Jowitt noted the stark difference in behaviour of Mr Whitney on the two occasions Dr George examined him and that, on the second occasion, he was not able to examine him in relation to each of the criteria set out in s 311 of the Crimes Act. This meant, she submitted, that I could not really find that any one (or more) of those criteria had not been met.
She also submitted that there was, in the cautious and not unreasonably qualified opinion of Dr George, an insufficient basis for a finding that Mr Whitney would not be able to follow the proceedings at trial.
There was, she submitted, not enough evidence to find, on the balance of probabilities, as opposed to having a doubt, that Mr Whitney would not meet the criteria of being fit to plead. She noted that what was required was not a reduction in capacity or a minor impediment but that the person “cannot understand proceedings”. She noted, as had Dr George, that the diagnosis of chronic paranoid schizophrenia was not enough in itself to meet that test. Thus, she submitted that the absence of direct evidence from Dr George about each of the criteria specified in s 311 of the Crimes Act made it difficult to come to a proper conclusion. This was relevant when it was clear from the earlier interview that Dr George could engage with Mr Whitney on that occasion and he could have dealt with the whole of the criteria in s 311 of the Crimes Act had he then been asked to do so.
Mr O’Brien accepted that, in respect of ss 311(a), (b) and (c) of the Crimes Act, there was not enough evidence to make a finding that Mr Whitney did not meet these standards, so the presumption of fitness would there apply. As, however, to s 311 (d), (e) and (f), of the Crimes Act, he submitted that I could be satisfied on the balance of probabilities that Mr Whitney was unfit to plead.
I referred Mr O’Brien to the fact that I had asked Dr George whether he considered Mr Whitney unfit to plead in January and his answer was not very clear. Mr O’Brien fairly submitted that Dr George clearly had not really turned his mind to the issue at that time.
Mr O’Brien relied on Kesavarajah v The Queen, where the majority was clear that, if, at any point in the trial, the accused is unfit to plead, then the trial has not been a fair trial. He noted that Dr George had, including the clinical notes he had recently reviewed, nearly eleven months of evidence about Mr Whitney’s behaviour and condition. He submitted that, with that material and Dr George’s opinion, I would be satisfied on the balance of probabilities that Mr Whitney was not fit to plead.
Mr O’Brien pointed out, also, that what was at issue was capacity and the way in which Mr Whitney’s mental impairment prevented him from being able to participate to the requisite degree in the trial. He accepted that Mr Whitney was not absolutely incapable but significantly impaired which, he submitted, was sufficient.
He also noted that when he put to Dr George that Mr Whitney was unfit to plead in terms of s 311(d), (e) and (f), Dr George had affirmed that this was his opinion.
He submitted that on the balance of probabilities, I could be satisfied that Mr Whitney was unfit to plead.
I raised the fact that the clinical notes on which Dr George had also relied were not in evidence but neither counsel sought to have them admitted. Neither counsel sought to exclude Dr George’s opinion based on them, however, though Mrs Jowitt did express some concern about their absence.
Mrs Jowitt also reminded me that neither counsel had asked Dr George about the issue under s 315A(4) of the Crimes Act, namely whether Mr Whitney, if unfit, would become fit within twelve months.
Dr George did address that to some extent, though perhaps not very helpfully. He said in his March Report:
At this point in time it is impossible to say that he will remain Unfit to Plead over the next 12 months. It is likely that, with appropriate treatment, his mental state may improve unless he suffers a resistant form of schizophrenia which does not respond to current medication.
However, only time will tell whether this is the case or not.
Consideration
Despite the careful and thoughtful submissions of Mrs Jowitt, I do not consider that the absence of an assessment by Dr George of the criteria set out in s 311 of the Crimes Act one by one is a bar to a finding by me that Mr Whitney is unfit to plead.
Though in a slightly different context, the comment by the English Court of Appeal in R v Rivett (1950) 34 Cr App Rep 87 (at 94) is apposite, namely, that it is for the court “and not for medical men of whatever eminence to determine the issue”.
Thus, while it is often helpful for expert evidence to address each of the criteria, it is not essential, so long as the court can put the evidence into that context and make a finding based on the section.
Mr O’Brien’s characterisation was also helpful. It seems to me that this was how the consideration of mental fitness was originally perceived. As Alderson B put it in R v Pritchard (1836) 7 Car & P 303; 173 ER 135 (at 304, 135):
There are three points to be inquired into: - First, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence – to know that he might challenge any of you to whom he may object – and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.
The first of the three points referred to by Alderson B is, of course, the issue of malingering referred to above (at [39]) and which must be important on any assessment. Mr O’Brien identified that, the first three criteria in s 311((a), (b) and (c)) of the Crimes Act really address the second of the three points while the other three (s 311(d), (e) and (f) of the Crimes Act) address the third of them.
While that is a helpful context under which to consider this section, it is still necessary for the court to have regard to each of the criteria and determine whether Mr Whitney is unfit in respect of any one (or more) of them and make the finding in that context.
The level at which the impairment must be present before a finding of unfitness is made is complex and has not been reduced to a real formula.
As I noted in Egan, Hawkins and Burr v JG [2010] ACTSC 53 (at [94]), attention span and concentration is relevant to an assessment of whether an accused person can follow the course of the proceedings and, where a result of impairment, can justify a finding of unfitness.
In addition, a formal thought disorder is a contributor to this finding: R v Polanski (at [53]).
The description of Mr Whitney’s mental impairment provided by Dr George shows that Mr Whitney will have great difficulty in participating in the criminal justice system through a trial. He will have substantial difficulty in concentrating and attending and, on the balance of probabilities, I am of the view that there will be significant periods of time during the trial when he will not be able to follow the proceedings. This is because of the psychotic phenomena he experiences and also his formal thought disorder.
I accept that Mr Whitney does not need to understand the proceedings unaided, as explained in R v P (1991) 105 FLR 12 (at 15). Here, however, I am not satisfied that the assistance of counsel will overcome the difficulties that Mr Whitney will experience.
It seems to me, also, that the impairments Mr Whitney suffers will prevent him from effectively understanding the substantial effect of the evidence. His irrational and illogical thoughts will make this next to impossible and the impairment will be exacerbated by the difficulties Dr George identified in the assimilation of information that Mr Whitney experiences.
I am not able to say whether Mr Whitney could instruct counsel in the way in which that criterion has been construed by the courts. See, for example, R v House [1986] 2 Qd R 415 (at 422) per Connolly J. It seems likely that Mr Whitney’s inability to follow the course of the proceedings and to understand the substantial effect of the evidence will prevent him from informing his counsel of whether the evidence is true or not and to qualify or explain the evidence. Nevertheless, I am not able to say that he is able to do so in the way required.
I accept, as both counsel seemed to agree, that the onus of proving to the relevant degree that Mr Whitney has not met the criteria in s 311(a), (b) or (c) of the Crimes Act has not been discharged. That, however, does not affect my finding which is that ultimately, Mr Whitney is, on the balance of probabilities, unfit to plead, having regard to each of s 311(d), (e) and (f) of the Crimes Act.
There remain two further questions I must address. In the first place, I need to determine under s 315A(4) of the Crimes Act, whether Mr Whitney will become fit to plead within twelve months.
As noted above (at [55] to [56]), this was not helpfully addressed by Dr George either in his Reports or in his oral evidence (because neither counsel, nor I, addressed this issue with him).
I can, however, make some relevant findings. I am satisfied that Dr George found Mr Whitney in a substantially impaired state in January 2010. While his answer to my question as to whether Mr Whitney was then unfit to plead was unclear and perhaps equivocal, I have now carefully perused the whole of the evidence and consider that Dr George’s opinions and findings are a sure basis for me finding that the causes of Mr Whitney’s unfitness, namely the irrationality and illogicality of a formal thought disorder, lack of insight into his condition and psychotic phenomena, were present in January as well as in March. I am also satisfied from the evidence that Dr George gave as to the continuing condition of Mr Whitney, that Dr George gleaned from the clinical notes that he had scanned, that the substantial impairment from these matters continued and have continued for nearly eleven months since January 2010, and despite Mr Whitney, at the time of the investigation, being medicated with the maximum dose of a strong antipsychotic medication.
In these circumstances, I find, not without some hesitation because of the absence of direct evidence on this issue, not addressed by counsels’ questioning of Dr George or helpfully in his Report, that Mr Whitney is unlikely to become fit to plead within twelve months.
The final matter that I should address, though not required by the Crimes Act to be done at this stage, is whether Mr Whitney can make an election under s 316 of the Crimes Act for trial by judge alone. Though not mandated, it is very convenient and highly desirable for such a decision to be made at this point, before the special hearing is further considered. It must, in any event, be made, if at all, before a date is set for the special hearing. I have all the relevant material before me and the procedural issues attendant upon such a finding can then be addressed more conveniently.
In my view, Mr Whitney is not able to make such an election. I consider his lack of insight comes with what might be called “decisional incompetence” (see Brookbanks W and Simpson S Psychiatry and the Law (LexisNexis: Wellington NZ, 2007) at pp 169-70; [7.2.4]) and that he does, therefore, not have this capacity.
Since, however, I have not heard submissions on this aspect of the matter, I will hear any further submissions on it before making such an order.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 23 June 2011
Counsel for the Crown: Mrs S Jowitt
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr M O’Brien
Solicitor for the defendant: Legal Aid ACT
Date of hearing: 1 October 2010
Date of judgment: 23 June 2011
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