R v Susan Michelle Keevers
[2011] ACTSC 118
•15 July 2011
R v SUSAN MICHELLE KEEVERS [2011] ACTSC 118 (15 July 2011)
FITNESS TO PLEAD INQUIRY – charge of aggravated robbery – whether accused understood that the proceeding is an inquiry into commission of offence – whether accused could understand the effect of any evidence given in prosecution case – whether accused could follow the course of a proceeding – whether deafness is, or results in, a disorder or impairment of a person’s mental processes – deafness was not profound and insuperable so as to render accused unable to follow the course of a proceeding – found fit to plead.
Crimes Act 1900 (ACT), s 311(1), (a),(b),(c),(d), (e) and (f)
R v Bailiff (2010) 5 ACTLR 1
Macquarie Dictionary (2011) viewed 14 July 2011
EX TEMPORE JUDGMENT
No. SCC 133 of 2010
Judge: Penfold J
Supreme Court of the ACT
Date: 15 July 2011
IN THE SUPREME COURT OF THE )
) No. SCC 133 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
v
SUSAN MICHELLE KEEVERS
ORDER
Judge: Penfold J
Date: 15 July 2011
Place: Canberra
THE COURT FOUND THAT:
(a)Pursuant to s 311(1) of the Crimes Act 1900 (ACT), Ms Keevers is fit to plead to the charge of aggravated burglary on the indictment dated 14 April 2010.
Introduction
Susan Michelle Keevers has been charged with aggravated robbery alleged to have been committed on 19 July 2009.
When she was committed to the Supreme Court for trial in April 2010, there was before the Magistrate a report by Dr Graham George dated 3 March 2010 (the 2010 report) advising that Ms Keevers was not fit to plead to the charge. Accordingly, in committing her for trial, the Magistrate expressly reserved the question of her fitness to plead.
In May 2010, a further report from Forensic Mental Health was ordered, and that report has now been provided, dated 5 April 2011 (the 2011 report).
Ms Keevers’ fitness to plead now falls to be determined having regard to those two reports.
Criteria for determining fitness to plead
In R v Bailiff (2010) 5 ACTLR 1, I summarised (at [9]) the issues in determining whether a person is fit to plead, as follows:
Section 311 of the Crimes Act sets out the criteria for determining whether a person is fit to plead, and s 312 of that Act sets out the nature of the inquiry and determination. ... In summary:
(a) A person is presumed to be fit to plead.
(b)The presumption is rebutted if it is established that the person is unfit to plead.
(c)A person is unfit to plead if his or her mental processes are disordered or impaired such that the person cannot understand, or participate properly in, various specified elements of the normal criminal processes.
(d)The question of fitness to plead is a question of fact to be decided on the balance of probabilities, with no party bearing a burden of proof.
As I noted in Bailiff (at [12] and [13]), the question of fitness to plead to a charge is distinct from the question of criminal responsibility for the offence charged.
I mention here, for reasons which will become apparent, that the question of fitness to plead is also distinct from the question whether a person has a mental illness.
Under s 311 of the Crimes Act 1900 (ACT), a person is unfit to plead if his or her mental processes are disordered or impaired to the extent that he or she cannot understand or take part in six specified aspects of the criminal trial processes set out at s 311(1)(a)-(f).
Reports by Dr George
In the 2010 report, Dr George found that Ms Keevers’ mental processes were adequate for all the specified aspects of criminal trial processes that are described in s 311(1). That is, she could understand the nature of the charge (s 311(1)(a)), could enter a plea to the charge and exercise the right to challenge jurors or the jury (s 311(1)(b)), understood that the proceeding would be an inquiry about whether she committed the offence charged (s 311(1)(c)), could follow the course of proceedings (s 311(1)(d)) and understand the substantial effect of evidence that might be given in support of the prosecution (s 311(1)(e)), and could give instructions to her lawyer (s 311(1)(f)).
Despite this, and despite the clear terms of s 311(1), Dr George then concluded that Ms Keevers was not fit to plead, saying:
In general terms, Ms Keevers presents as understanding the criteria associated with Fitness to Plead. She has rudimentary comprehension of all the criteria. However, she presents with a mental illness in the form of chronic schizophrenia. Her illness appears to be, at this stage, more in the form of simple schizophrenia where chronic symptoms appear to be more predominant than acute symptoms. However, it does appear that, in the past, she has had acute symptoms when admitted to the psychiatric unit at Canberra Hospital.
In this context, I believe that, in general terms, because she has a chronic mental illness with poor attention, concentration, short-term memory, and presents with confusion and perplexity with a lack of insight and judgment, her ability to understand the full implications of all the criteria associated with fitness to plead remains impaired. For this reason, I find her Unfit to Plead.
It is not clear whether Dr George reached that conclusion because he believed that having a mental illness, or this particular mental illness, of itself renders a person unfit to plead, or because, despite his explicit findings in relation to each of the s 311(1) tests, he believed that Ms Keevers’ mental illness meant that she really did not have the capacities required by the s 311(1) tests.
In the 2010 report, Dr George recommended in general terms a treatment plan for Ms Keevers, which he considered to be best implemented if Ms Keevers were referred to the Brian Hennessy Rehabilitation Centre for three to six months. Whether this is an available option, or the preferable option, is as far as I can see unrelated to whether Ms Keevers is fit to plead, although it may be relevant to how Ms Keevers’ charge is resolved.
The 2011 report was ordered because of the internal inconsistency of Dr George’s conclusions. In the 2011 report, Dr George again found Ms Keevers unfit to plead. This time he cast doubt on whether she satisfied several of the s 311(1) tests, although without explicitly concluding that she did not, and he explicitly found that Ms Keevers would not be able to follow the course of the proceedings (s 311(1)(d)). This, he said, was because Ms Keevers had hearing difficulties and, even using her hearing aids, was often unable to hear what was being said. Furthermore, Dr George reported that even when she could hear, Ms Keevers could not remember what was being said and often became confused when attempting to understand “different words”.
Again, Dr George pointed out that Ms Keevers has a serious and chronic mental illness, being chronic schizophrenia, with current symptoms including a lack of motivation, poverty of thought, and significant cognitive deterioration. He does not expect Ms Keevers’ situation to change significantly “as the years pass”.
Fitness to plead determination
For the purpose of my fitness to plead decision, then, I note first by reference to s 311 that there is no evidence before me raising the probability that Ms Keevers does not understand the nature of the charge or that she is unable to enter a plea or to exercise her right to challenge jurors or the jury.
Nor is there any real challenge to her ability to instruct her lawyer. At a preliminary hearing on 14 April this year Mr Keevers’ lawyer said that his dealings with her had given him no concerns about her fitness to plead and that her mental health condition then was quite good compared to earlier times.
Since then, Ms Keevers has had her medication reviewed and her lawyer now says that her mental state is good. There is nothing in her current demeanour that would lead me to question that assessment.
This means that the outstanding s 311(1) tests are:
(a) whether Ms Keevers can understand that the proceeding is an inquiry about whether she committed the offence (s 311(1)(c));
(b) whether she can follow the course of the proceeding (s 311(1)(d)); and
(c) whether she can understand the substantial effect of any evidence that may be given in support of the prosecution (s 311(1)(e)).
Understanding that the proceeding is an inquiry about whether she committed the offence
As to Ms Keevers’ understanding that the proceeding is an inquiry about whether she committed the offence, Dr George said in his 2010 report:
Ms Keevers said that she did have an understanding that a court process related to understanding whether a crime had occurred. She understood that this was the purpose of Court hearings or other court cases.
In the 2011 report Dr George reported that Ms Keevers said that she did understand the relevant concept but she was unable to explain the process for the inquiry.
There is nothing in Dr George’s report that suggests that Ms Keevers’ understanding of the nature of the proceeding has declined since he was satisfied about her understanding in 2010. Given her poverty of thought, which Dr George mentioned in both reports, it is not surprising that she would have difficulty describing or explaining how a criminal trial process operates to establish whether a person committed an offence, but this does not mean that she does not understand that that is its purpose.
I am not satisfied on the balance of probabilities that Ms Keevers cannot understand that the proceeding is an inquiry about whether she committed the relevant offence.
Understanding the substantial effect of any evidence that may be given in support of the prosecution
As to Ms Keevers’ ability to understand the substantial effect of any evidence that may be given in support of the prosecution, Dr George in his 2010 report said:
Ms Keevers was asked whether she understood whether people such as police officers could provide evidence to substantiate a case against an accused person such as herself. She said that she understood this and she understood that perhaps, in her case, police could provide camera evidence to substantiate a case. She appeared to have an understanding of this criterion.
Ms Keevers’ reference to the possibility of camera evidence being used in her case (which does apparently reflect the kind of evidence available to the prosecution), is telling, given that it suggests both knowledge of the prosecution case and an understanding that a film of her actions would be relevant to establishing what she is said to have done.
In 2011 Dr George merely said that Ms Keevers “understood that people such as police officers could tender evidence.” This, of course, is quite a different issue from whether Ms Keevers could understand the effect of specific items of evidence. It is not clear whether Dr George intended his comment simply as a summary of what he had said in 2010, or whether it was intended to suggest that in fact Ms Keevers’ capacity fell short of being able to understand “the substantial effect” of evidence given by the prosecution.
Having regard to Ms Keevers’ comments in 2010 as reported by Dr George, I am not satisfied on the balance of probabilities that Ms Keevers would not be able to understand the substantial effect of any evidence that may be given in support of the prosecution.
Following the course of the proceeding
Dr George’s explicit concern is with Ms Keevers’ ability to follow the course of the proceeding. In 2010 he said:
She was asked whether she had the capacity to follow evidence. She said that provided people spoke out loudly, she would be able to follow proceedings. She said that unless people spoke loudly, then she would not be able to follow proceedings. She said that she believed she could challenge evidence in a court case if needed. She understood the structure of the court.
In 2011 Dr George said:
Firstly, Ms Keevers said she could not understand the course of the proceedings. She said one of the major reasons for this was that she was deaf. She said that she had hearing aids which she wore in court but often, still could not hear what was being said.
She said even if she could hear completely, she was unable to follow the course of the proceedings. She said that she could not remember what was being said and often, became confused especially when attempting to understand different words. It did not appear that she could adequately follow the proceedings.
There are two difficulties identified by Dr George. First, Ms Keevers is said to be deaf and sometimes cannot hear what is being said in court even when wearing her hearing aids. Secondly, Ms Keevers says that she has trouble remembering what is said and can become confused when trying to understand “different words”.
Ability to hear the proceeding
As to Ms Keevers’ hearing, I note first that s 311(1) refers to a person’s inability to satisfy any of the six tests set out in that provision because her “mental processes are disordered or impaired”. Whether deafness can be said to cause, or to amount to, a disorder or impairment of a person’s mental processes is a real question, but fortunately it does not need to be answered in this case. This is because it is apparent that Ms Keevers’ deafness is not profound and is not insuperable. Dr George seems to have had no difficulties in conversing with her or in getting answers to his questions, and nor has her lawyer suggested any deafness-related obstacles to his communications with her.
It seems that Ms Keevers’ deafness can be addressed for the purpose of any necessary court proceedings by the making of appropriate arrangements by her lawyers and others involved in the proceedings. Ms Keevers will need to make full use of her hearing aids, including perhaps receiving assistance to engage the “hearing loop” installed in the courtroom if that facility would be useful. She could be permitted to sit close to her lawyer and be invited to indicate, to him or to the court more generally, if at any stage she is having trouble hearing the proceedings. Everyone involved in the proceedings will need to speak clearly and slowly, but the process need not be very different from the process where an accused person or witness needs an interpreter.
Ability to remember and understand
The second difficulty identified by Dr George is that Ms Keevers has trouble remembering what has been said and can become confused. I note first that Ms Keevers’ reference to trying to understand “different words” is probably just a reference to understanding some words (the Macquarie Dictionary online gives “various; several” as one of the meanings of “different”) (Macquarie Dictionary (2011) viewed 14 July 2011), but even if it refers specifically to difficulties Ms Keevers has when, for instance, different words are used to describe the same thing, I am satisfied that a solution to her difficulty can still be found.
That solution will be very similar to the solution to Ms Keevers’ deafness, that is, that everyone will need to speak as clearly, carefully and plainly as possible, and there will need to be scope for proceedings to be interrupted while things are explained to Ms Keevers as necessary. It may be useful if Ms Keevers’ lawyer is joined by another lawyer who can help Ms Keevers, so that her counsel does not have to act as counsel and as interpreter simultaneously.
As the prosecutor and Ms Keevers’ counsel have pointed out in their joint written submissions, transcript would be available to Ms Keevers if the proceedings went beyond one day. I suspect that transcript would not be as helpful as the availability of a support person to explain difficult issues as they arise, and to remind Ms Keevers of previous relevant evidence or submissions on the spot, but I do not discount the significance of transcript.
On the basis that I have proposed, I cannot be satisfied on the balance of probabilities that Ms Keevers would be unable to follow the course of proceedings.
Conclusion
Thus, I am not satisfied on the balance of probabilities that Ms Keevers is, because of a disorder or impairment of her mental processes, unable to engage with the trial processes in the ways addressed in s 311(1). As noted, the unchallenged fact that she has a mental illness does not render her unfit to plead unless it impairs her ability to engage with the trial processes as described.
Accordingly, I find Ms Keevers fit to plead to the charge of aggravated robbery.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 22 July 2011
Counsel for the crown: Mr J Hiscox
Solicitor for the crown: ACT Director of Public Prosecutions
Counsel for defence: Mr J Jasinski
Solicitor for defence: Legal Aid Office (ACT)
Dates of hearing: 15 July 2011
Date of judgment: 15 July 2011
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