R v Thomas
[2014] NSWSC 1181
•29 August 2014
Supreme Court
New South Wales
Medium Neutral Citation: R v Thomas [2014] NSWSC 1181 Hearing dates: 25 August 2014 Decision date: 29 August 2014 Before: Bellew J Decision: (1) I find the accused unfit to stand trial;
(2) I refer the accused to the Mental Health Review Tribunal pursuant to the provisions of s. 14 of the Mental Health (Forensic Provisions) Act 1990;
(3) I order that the accused be remanded in custody until such time as effect is given to any determination made by the Mental Health Review Tribunal.
(4) I direct that the Registrar provide to the Mental Health Review Tribunal a copy of Exhibits A to E, along with Exhibits 1 and 2 which were before me in these proceedings, together with a copy of these reasons.
Catchwords: CRIMINAL LAW - Whether accused fit to stand trial - Necessity to resolve competing expert opinions - Accused not fit Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: Kesavarajah v R (1994) 181 CLR 231
R v Presser (1958) VR 45Category: Principal judgment Parties: Regina - Crown
Michael Thomas - AccusedRepresentation: Counsel:
Mr K McKay - Crown
Mr M Ierace SC - Accused
Solicitors:
S Kavanagh, Solicitor for Public Prosecutions - Crown
S O'Connor, Legal Aid New South Wales - Accused
File Number(s): 2013/30962 Publication restriction: Nil
Judgment
INTRODUCTION
The Crown seeks to present an indictment against Michael Thomas ("the accused") alleging that on 31 January 2013, at Emu Plains in the State of New South Wales, he did unlawfully kill Susan Thomas ("the deceased"). The indictment alleges, in the alternative, that on the same date the accused recklessly caused grievous bodily harm to the deceased.
The question of the accused's unfitness to be tried for those offences was raised prior to any arraignment on that indictment. In these circumstances, having regard to the provisions of s. 8 of the Mental Health (Forensic Provisions) Act 1990 ("the Act") an enquiry has been conducted for the purposes of determining the issue of the accused's unfitness.
Having regard to the provisions of s. 10(2) of the Act, I record the fact that I am satisfied that the issue of the accused's unfitness has been raised in good faith. Pursuant to s. 11 of the Act that issue is to be determined by a Judge alone on the balance of probabilities. There is no onus of proof on either party.
The following material was tendered by the Crown on the hearing:
(i) a report of Dr Gary Banks, Clinical Forensic Psychologist dated 1 July 2014 (excluding that part appearing under the heading "comment" at pp 4-5), along with Dr Banks' Curriculum Vitae (Ex A);
(ii) a copy of the Crown Case Statement (Ex B);
(iii) a copy of the transcript of an ERISP conducted with the accused on 31 January 2013 (Ex C);
(iv) a DVD of that ERISP (Ex D); and
(v) the results of testing administered by Dr Banks in his assessment of the accused (Ex E).
Senior counsel for the accused tendered two reports of Dr Susan Pulman, Forensic Psychologist, dated 19 November 2013 and 22 August 2014, which were marked Exhibits 1 and 2 respectively.
In addition, the accused's father was called to give oral evidence regarding aspects of the history recorded by Dr Banks in his report.
THE CROWN CASE
The following summary is taken from the Crown case statement filed in the proceedings:
"Background:
The accused, Michael THOMAS, is the adopted son of the deceased, Susan Thomas. He is 25 years old.
The deceased, her husband, her other adopted son and the accused all lived together at 13 Lucas Street, Emu Plains.
The accused is prone to violent outbursts and has an alcohol-dependency problem. He also has a moderate intellectual disability stemming from ADHD, attention deficit disorder, Asperger's Syndrome and Opposition Defiance Disorder. He prefers to spend his day in bed and playing video games and has had several arguments in the past with his parents regarding his employment situation. He has difficulty controlling his emotions and easily becomes angry and frustrated when he is asked to do something that he doesn't want to do.
He has obtained employment in the past through "Ability Options Employment" and his most recent job was as a kitchen hand at Outback Steakhouse in Penrith. However, he had recently quit his job as he was unhappy at work and wanted to become a DJ.
Day of the incident
The accused's father knew that the accused was unhappy at work so on 31 January 2013 he decided to drive the accused to work to have a word with the boss. The accused usually worked between 9am to 12midday on Thursdays.
When they arrived at the Steakhouse the accused's father was advised that the accused had resigned the previous week. They got back into the car and arrived home at about 9:30am.
The deceased was in bed as she was suffering from terminal cancer. She had survived breast cancer and another cancer previously but had recently (late 2012) been diagnosed with a more virulent bone marrow cancer and had only been given months to live. A conservative estimate as at the date of her death was 6 weeks. The deceased was still mobile but on some days she had to stay in bed for lengthy periods due to the pain.
The deceased and her husband had a conversation with the accused about his job in their bedroom. They were telling him that he needed to stop sleeping in and that he needed to "lift his game". He was quiet and appeared to listen to his parents. The accused's father left the bedroom and the deceased was still sitting up in bed, propped up by a number of pillows. The accused then left the room.
The deceased then called for the accused to go back into the bedroom. The accused's father saw the accused leave his bedroom and go back into the deceased's bedroom. It was only the deceased and the accused in the bedroom.
She repeated what she had said earlier to the accused that he had to get new employment and he got increasingly angry, which is when he punched her twice to the face.
The accused immediately noticed that there was something wrong with the deceased's breathing. The accused left the room.
The accused's father was in the kitchen when he heard a noise coming from the bedroom about 30 seconds after the accused had gone back into the deceased's bedroom. He described the noise as two quick thumps. He went into the bedroom where he saw the deceased lying on her back in the bed and he noticed blood on her cheek. He asked if she had been hit but she said she was alright. He realised that she couldn't have fallen and that she must have been hit. He went into the bathroom to get a flannel to wipe away the blood and when he returned to the bedroom both the accused and Benjamin were in the room. The accused was not talking or moving so the accused's father rang 000.
While on the phone to 000 they were trying to help the deceased to open her mouth so that she could breathe. A female paramedic arrived and the accused's father informed her that the deceased had been hit on the side of the face. The paramedic did what she could until the ambulance arrived.
The ambulance arrived and took the deceased to Westmead Hospital. She arrived at the hospital shortly before 11am. She was taken into the emergency department but due to her illness there was significant bleeding on the brain and the surgeons decided that it would be too risky to perform surgery as the deceased had little clotting factor in her blood and an operation would have been fatal.
A decision was made to turn off the deceased's life support and she was declared dead ("life extinct") at 3:05pm.
The police attended the hospital and spoke to the family. They arranged for the accused's father and brother to attend the police station to provide statements. They then arrested the accused and took him to Parramatta Police Station.
The accused's father provided a statement to police at Parramatta Police Station while his brother participated in an electronically recorded interview at Penrith Police Station.
...
Autopsy
The body of the deceased was examined on 1 February 2013. Dr Szentmariay reports that the direct cause of death was "blunt force head injury" and antecedent causes as "morbid conditions" with other significant conditions contributing to the death but not relating to the disease or condition causing it as "metastatic breast cancer and its treatment".
He reported "Post-mortem examination showed three nearly confluent areas of dark red contusions on the left side of the face, mostly centred adjacently in front of and inferior to the left ear. Subsequent internal examination showed an underlying large confluent haemorrhage. No fractures of the facial bones were identified."
His findings were "In summary, based on the reported circumstances and on the above findings, the cause of death is recommended to be recorded as blunt force head injury. The injury pattern present is consistent with those seen following reported events. The clinically reported low platelet level (due to breast cancer and its treatment) can significantly contribute to haemorrhage following trauma."
Crown Case
The crown case is that the accused punched the deceased twice to the left cheek. At the time of the assault the victim was terminally ill with cancer with only weeks to live. Because of the bone marrow cancer, she had little blood clotting ability, and as a result doctors were unable to perform surgery upon her and she died from her injury."
THE EXPERT EVIDENCE
Dr Banks
Dr Banks interviewed the accused on 12 June and 19 June 2014 and provided a report dated 1 July 2014 (Exhibit A). He set out (commencing at para. 2 of that report) aspects of the history provided to him by the accused. In light of evidence given by the accused's father, some aspects of that history were not entirely correct.
Dr Banks recorded (at para. 2) that the accused had been adopted when he was "6, or 5 or 4". In light of the evidence given by the accused's father (T36 L1-16) that was incorrect. The accused had not turned 3 years of age when he was adopted.
Dr Banks also recorded, in the same paragraph, that when the accused was "10 or 11" his parents adopted another child. That was also incorrect, the accused's father having given evidence (T36 L33-34) that the accused was in fact aged 8 at that time.
Dr Banks also recorded (commencing at para. 8) that the accused had "attained his Year 10 certificates". To the extent that this may have conveyed the impression that the accused was awarded the School Certificate, it was misleading. The evidence of the accused's father (T36 L43-T37 L13) was that the accused was diagnosed with an intellectual disability at an early age and that as a consequence, he was not able to be placed in mainstream classes, had never sat an examination, and had not been awarded his School Certificate.
Dr Banks also recorded (at para. 9) that the accused "had worked at Penrith Paceway for a couple of months". The evidence of the accused's father (T37 L46-T38 L5) was that the accused had undertaken a cooking course, specifically tailored to persons with intellectual disability, which was conducted in the grounds of Penrith Paceway. The suggestion that the accused had "worked at Penrith Paceway" was somewhat misleading.
Dr Banks administered the Weschsler Adult Intelligence Scale Testing when assessing the accused. The composite score summary obtained by Dr Banks, which incorporated verbal comprehension, perceptual reasoning, working memory, processing speed and full scale IQ, was generally consistent with that obtained by Dr Pulman following similar testing (at [31] below).
Dr Banks concluded that:
(i) the accused's overall cognitive capacity was well below average (para. 22);
(ii) his performance on testing of verbal comprehension, perceptual reasoning, working memory and processing speed was similarly well below average (para. 22);
(iii) his overall non-verbal intelligence was well below average (para. 27);
(iv) he met the criteria for moderate intellectual disability (para. 23);
(v) his overall cognitive functioning was well below average, and had been since early childhood (para. 23).
Dr Banks also concluded (at para. 26 of his report):
"...The results of the tests indicated that (the accused) had a Moderate Intellectual Disability, with extremely poor auditory attention span, working memory and information processing speed."
Despite these conclusions, Dr Banks expressed the view that the accused was fit to stand trial. In reaching that view, Dr Banks referred to the criteria in R v Presser (1958) VR 45 at 48.
Dr Banks reported (inter alia) that he had asked the accused various questions about court procedures. These included questions directed towards ascertaining his understanding of the roles of the principal participants in a criminal trial. In this regard Dr Banks reported as follows (commencing at para. 28):
"...Mr Thomas stated that the Judge 'talks about what happened, asks questions and decides if you're guilty or not guilty' and solicitors 'write stuff down that the barrister says'. With regards barristers he stated that they 'get up and help you talk and they wear a wig and he agreed that his barrister's job is to question the evidence stating 'he sticks up for you, talks about what happened and the evidence'. He stated that the role of the prosecution barrister was to 'talk about the evidence'. With regards to the Jury, he initially stated I know he sits on the stand', however with the use of exploratory questioning and illustrating the layout of a Court, Mr Thomas was able to sufficiently describe the Jury stating 'they talk about things to do with the charge, they want to know more evidence... they look at risk and decide if I did it' (emphasis in original).
Based partly upon these statements, Dr Banks concluded (at para. 29) that the accused "indicated that he had an appropriate understanding" of judicial proceedings. Dr Banks was cross-examined about this aspect of his opinion (commencing at T21 L14):
"Q. About eight lines down you say this, "he stated that role of the prosecution barrister was to 'talk about the evidence.'"?
A. Yes.
Q. Did you have any concerns about his understanding of the prosecution?
A. I really didn't press it much further than that.
Q. "With regards to the jury he initially stated 'I know he sits on the stand.'" Did that trouble you?
A. No, because he had already mixed up pronouns earlier throughout the interview and I took it clearly that he was referring to the judge. A couple of questions on he clarified that quite readily.
Q. And he said to you once you had given him an explanation, "they talk about things to do with the charge. They want to know more evidence. They look at risk and decide if I did it." Did that cause you any concern?
A. It highlighted that he's certainly operating at a basic level.
Q. What about the words "they look at risk." What did you understand that to mean?
A. I was trying to get from him what the role of people in the jury are there to do.
Q. I understand that, what did you interpret the words "they look at risk" to mean?
A. In the context of our discussion at that point I would suggest that he was talking about the likelihood of him committing further offences, so the risk of further offence.
Q. Is that part of the role of the jury on your understanding?
A. Presuming that they don't have involvement in sentencing matters, no."
Dr Banks also expressed the view (at para. 29) that what he regarded as the accused's basic comprehension of legal proceedings "was further demonstrated in the ERISP transcript in which he indicated an understanding of his rights and capacity to follow the interview proceedings". Dr Banks explained (T22 L24-28) that in making these observations he particularly had in mind questions asked of the accused at the commencement and conclusion of the interview.
It is noteworthy that Dr Banks was not provided with a copy of the DVD of the actual interview, but relied upon the transcript to express these views. Both are in evidence before me and I have had the opportunity to view the DVD recording in its entirety. Given Dr Banks' reliance upon the contents of the ERISP to support his opinion that the accused is fit to stand trial, it is appropriate for me to set out some of those questions and answers.
At the commencement of the interview the accused was asked:
"Q18 I'm going to ask you certain questions about that matter. I want you to understand that you don't have to say or do anything if you do not want to. Do you understand that?
A Yes. Yes.
Q19 Whatever you do say or do will be electronically recorded on these DVDs as the interview takes place. Do you understand that?
A Yes."
Dr Banks accepted when cross-examined (T22 L34-41) that it was very difficult for an intellectually disabled person to comprehend a caution administered by police, because the terms of a caution included difficult abstract concepts combined in a lengthy sentence. Nevertheless, he maintained that the accused understood it in this case. When asked why, Dr Banks gave the following further evidence (T22 L43-50):
"Q. Why do you assume that because he said yes that he understood it?
A. Because it was broken down to a level in very basic terms and he had a support person there.
Q. How did that help him in understanding the caution, the fact that he had a support person?
A. Fair question. Probably didn't. "
In terms of the accused's answer of "yes" to each of Q18 and Q19, Dr Banks specifically agreed (T23 L46-T24 L1) that it was characteristic of persons with even a mild degree of disability to answer questions in the affirmative regardless of whether such an answer was correct or appropriate. In particular, he gave the following evidence (commencing at T23 L46):
"Q. Then "Q. Are you Michael Thomas? A. Yes. Q. Have you given the answers as recorded in this interview of your own free will? A. Yes." Just pausing there for the moment. Is it a characteristic that people with a significance degree of disability, mild let alone moderate, that when they're asked a question they'll often answer in the affirmative regardless as to whether that's the appropriate answer?
A. Correct, and I've highlighted that in my report.
Q. Is it your understanding that one of the reasons that they do that is because they don't want to look dumb?
A. There's a readiness to acquiescence on top of not wanting to look dumb. Yes, that's part of engaging and it is also impulse regulation difficulties. So it is like when people of differing languages get together there is an increased level of nonverbal interactions within that process where people nod more to make sure there is an ongoing connection within the process.
Q. Is it not the case with many people with an intellectual disability that when they don't understand the question they look for signs as to what the appropriate answer might be, such as facial expressions from the questioner?
A. Potentially, and equally they'll also look for signs that if the question is then repeated the same following they're previous response that there is an increased likelihood that they will alter the response simply because they're getting the question again.
Q. The fact that a question is repeated is a fair indication to them that the last answer was the incorrect one which mains means they go to the alternative answer?
A. Incorrect or simply not satisfactory to the questioner.
Q. The problem that we have, the listener, is we don't know whether they really did understand the question the second time round or whether they were simply falling into that trap, isn't that so?
A. If the questioner is a little bit more sophisticated than perhaps what was demonstrated in this ERISP I think there is a potential to get more reliable and quite open responses from Mr Thomas, but caution needs to be taken.
Q. I would like you to answer the question I asked you. I'll repeat it. I'll paraphrase the question. If the person being questioned gives the alternative answer the second time round, that is no instead of yes, we can't be sure they understood the question when it is repeated?
A. If it is presented as a binary closed question, then, no, I don't believe you can be sure."
At the conclusion of the interview an officer who was independent of the investigation entered the interview room. Having introduced himself and explained the reasons for his presence, the following was recorded:
"Q351 Has any threat, promise or offer of advantage been held out to you to give the answers as recorded in this interview?
A Yes, what we were discussing.
Q352 Do you understand the question?
A What was that?
Q353 OK. Has anyone threatened you today to give, so you give a particular answer to any of the questions?
A No, no.
Q354 OK.
A No, no.
Q355 Has anyone promised you anything, that if you would, if you answer a particular question in a certain way, that you would get something? Has that happened today?
A Yeah.
Q356 OK. The police who were sitting here, did they promise you anything?
A No, no, no."
Dr Banks was then asked about that passage of questioning (commencing at T50 L47):
"Q. We see the next question is question 351:
"Q. Has any threat, promise or offer of advantage been held out to you to give the answers as recorded in this interview?
A. Yes, what we were discussing."
A. He's actually answering the previous question. He's answering 350.
Q. You don't know whether he is or not, do you doctor?
HIS HONOUR: Perhaps let the witness answer and then you can ask the next question.
Q. Did you finish that answer, doctor?
A. No. I believe counsel are just challenging what I'm suggesting. But from my reading of it I believe Mr Thomas is answering the previous question, and the police officer is simply not being patient enough because Mr Thomas has indicated straight after 350 he's answered in the affirmative, said, yes, and the police officer has pressed that question. In the meantime Mr Thomas is actually thinking his way through the nature of that question and by the answer to 351 I believe he's actually saying, his considered or more reflective and open response to question be 350.
HIS HONOUR
Q. Would that indicate to you that Mr Thomas perhaps didn't comprehend the first of those questions?
A. I believe so.
Q. Do I take it, Doctor, that you had the transcript of the interview rather than the recording of the interview?
A. Yes, I did.
Q. You have not seen the recording?
A. No.
IERACE
Q. Next question:
"Q. Do you understand the question?
A. What was that.
Q. Okay. Has anyone threatened you today to give so you give a particular answer to any of the questions?
A. No. No.
Q. Okay.
A. No, no."
Now we can't be sure that he actually understood that question, can we?
A. Given the way it's phrased, it's an awful question, but no, I'm struggling with it, too. I'm struggling with the quality of his response to the nature of that question.
Q. Next:
"Q. Has anyone promised you anything that if you would if you answered a particular question in a certain way that you would get something? Has that happened today?
A. Yeah.
Q. Okay. The police that were sitting here, did they promise you anything?
A. No. No. No.
Q. They didn't?
A. Nah. Nah."
Again I suggest to you that the reader can't be sure, given Mr Thomas' intellectual disability, that when he answered no repeatedly that he in fact understood what was being asked of him even then?
A. There was no effort within that span of questions to actually encourage Mr Thomas to reflect on the nature of the question that had been posed.
Q. Can you answer the question I asked you.
A. Yeah, I'm trying to. His first "yeah" in that I would suggest, and I acknowledge that I haven't seen the DVD but his first "yeah" to me is a habitual conversational habit that he has where he simply says "yes" when people are talking. It's a language habit. The "no no's" and repeated "no no's" to me are contextually accurate but again repetitive so I would need to be checking his comprehension of the material given. So the ERISP is replete with all of this so I have concerns about it. Hence I have a different interviewing style, hence I've made a series of recommendations to the Bar table in the event that Mr Thomas is directed
Q. The question I asked you is simply the proposition I put to you that for all the reasons we've gone through when he gives what appears to be a more appropriately responsive answer to the question that is repeatedly rephrased we still cannot be sure that he understands?
A. No, I challenge that. I believe you can.
Q. Okay. Next question:
"Q. No. Okay. Have they made an offer of advantage to say if you give us an answer you'll get something else? Have they said anything like that to you? It's called an offer of advantage. So if you answer questions they will give you certain things. Has that happened today?
A. Yes.
Q. Now did that happen?
A. Explain things, and then they explained it back to me.
Q. Okay. Now what I'm saying is have the two policemen who were here, or any other said to you if you tell us an answer we will give you something for that, so they said we will do something for you. Did they do that?
A. No. I don't, No. Not like an offering or something."
If I suggest to you this is a nonsense, clearly Mr Thomas was struggling to understand questions when they were first asked and when they were repeated and when they were paraphrased?
A. I would still suggest that for if the court is continuing with this matter as long as the question are taken out of the yes/no format and as long as they are not continually repetitive
Q. I'm not asking you what took place in the future. Sorry. If you could focus on the question I'm asking you about his performance in the ERISP rather than what would be the appropriate procedure at the trial.
A. Okay.
Q. Yeah? I'm putting to you that repeatedly you see Mr Thomas failing to understand these questions even when they are repeated and even when they are paraphrased?
A. If you are asking me to look at that span, I don't believe so. I believe there is a growing recognition and I think that's evidenced in his response to question 360.
HIS HONOUR
Q. When you say a growing recognition, a growing recognition of what?
A. Of the concept of being offered called the offer of advantage that it is now he is forming an understanding of what's being spoken about.
Q. But the fact that he is forming an understanding or taking time to form an understanding, doesn't that indicate that there is an initial lack of understanding?
A. Yes, but I would suggest that's possible for all people undergoing their first ERISP your Honour."
Dr Banks also considered the ability of the accused to plead to the charge and, in particular, to exercise his right of challenge (at para. 35). He said:
"35. Mr Thomas demonstrated an understanding of the concepts of guilt and innocence stating that guilty meant 'you've done it' and not guilty meant 'you haven't done it. Furthermore, when asked to reflect on how he would plead to the possible different charges, Mr Thomas insightfully indicated that he would vary his plead according to the charge. With regards to his awareness of the right to challenge, given his observed readiness to answer questions in agreement, he may be more likely to affirm statements provided to him. However, the use of open questions and provision of time to respond, is likely to enable more elaborate and accurate responses."
When asked to explain his understanding of the right of an accused person to challenge (within the meaning of that term as it is used in Presser) Dr Banks said (T31 L1-16):
"A. To be able to dispute the information that's been put forward and not just to say no it's not the case but to actually say whether that information should be even talked about at all.
Q. Were you referring to the word "challenge" in the Presser case? Are you aware of the Presser case?
A. Yes I am.
Q. You know that that word "challenge" is used in that passage, that
A. I am.
Q. Is that what you were referring to?
A. That's where I'm invoking this.
Q. Have you done many fitness reports before?
A. Yes, I have."
Dr Banks also observed (at para. 36):
"Mr Thomas demonstrated quite surprising insight into the behaviours he has observed at court and how he intends to behave stating that 'other inmates get stressed and fiddle, but I will just pay attention. And if the judge speaks to you, you say yes your Honour".
When asked whether it was a matter of concern that the accused had, in effect, said that he would say "yes your Honour" without otherwise considering whether such answer was correct, Dr Banks said (T31 L25-26):
"It's certainly consistent with what I've highlighted in the previous paragraph; he has a habitual tendency to acquiesce".
Dr Pulman
Dr Pulman provided two reports, the first of which was dated 19 November 2013 (Exhibit 1). In respect of the accused's fitness, Dr Pulman expressed the following opinion (at page 5):
"Mr Thomas was asked questions concerning the Presser criteria. Mr Thomas was able to state the nature of the offence for which he had been charged. He stated "murder, the detectives think, or basically call it manslaughter". He reported that his solicitor's name is Robyn Clark and that his next court date was "in three weeks on Friday. I guess it's a mention". He described his solicitor's role "last time at Penrith Court, she does the writing down, the barrister does all the talking, they say their point of view". When asked to describe the role of the prosecutor he reported "I don't know, they've just got to wait, isn't he on my side?" When asked what does the word "guilty" mean he responded "You have done it", and "not guilty" as "you haven't done it". When asked what does the term "entering a plea" mean, he stated "is that the same as a bail application?" He described the Judge's role "is to say you are guilty or not guilty and asks if you would like to make a speech, probably a couple of sentences. If the Judge says you are guilty, you will probably get a sentence". When asked what is meant by sentence he responded "How long you will do". When asked to give an example of evidence which might be used or presented he stated "pictures of fingerprints". He understood that the jury was "there to help you, you can have a jury on both sides, don't really know". "
Like Dr Banks, Dr Pulman also administered a number of tests to determine the accused's current intellectual functioning, the results of which were as follows:
Index
Percentile
Description
Verbal Comprehension
0.2
Extremely Low
Perceptual Reasoning
3
Borderline
Working Memory
0.1
Extremely Low
Processing Speed
0.1
Extremely Low
Full Scale IQ
0.1
Extremely Low
General Ability
0.4
Extremely Low
In terms of comprehension Dr Pulman described the accused's capacity in the following way when giving evidence before me (T61 L33-41).
"Looking at the comprehension tests I was using, you would be using those at primary school ... he was struggling with what you would see for a child in Year 2 at primary school so he was functioning at that level and he would have such difficulty getting a job, being able to understand any instructions that were given to him, the nuances involved in interpersonal and dealing with other people, the intention of why people say things. This is not talking about somebody with a mild intellectual disability. Michael does need a lot of support in that sense of trying to secure a position for any length of time. It would be difficult for him".
Dr Pulman also said (at page 9):
"The results of current intellectual assessment indicate that Mr Thomas is functioning within the range of Moderate Intellectual Disability consistent with previous assessments. He is functioning below 99.9% of the normal population with extremely limited attention, extremely poor information processing speed and impaired conceptual reasoning abilities.
Assessment of his fitness to stand trial according to the Presser criteria suggests that whilst he has some understanding of legal proceedings, his appreciation is limited and it is my professional opinion that in combination with his Moderately Intellectual Disability is unfit to stand trial."
This conclusion was confirmed in the second of Dr Pulman's reports (Exhibit 2).
Dr Pulman's observations in her first report regarding the application of the Presser criteria were the subject of further oral evidence before me. Whilst Dr Pulman accepted that the accused understood the general nature of the charge (T42 L38-40) she expressed the view that he would require "substantial guidance" in exercising his right to challenge and that he would "struggle" with that concept (T46 L30-33).
Importantly, Dr Pulman expressed the view that the accused did not have the capacity to understand the nature of the proceedings or follow their course. In particular she gave the following evidence (commencing at T46 L41):
"Q. He needs during the course of the proceedings so as to understand what is going on in the Court in a general sense but does he understand the purpose of all the various court formalities?
A. No, I don't believe he has the capacity to follow the course of proceedings even though in a general sense he doesn't need to be familiar with all the laws and what is happening but he would have difficulty and I would say substantial difficulty in just keeping up with what is being said in the Court room.
Q. When you say keeping up?
A. Processing information even though he does not have to understand every sentence that is said in detail. He is not a lawyer in that sense, just on the basis of when I was interviewing him on a onetoone situation, having to repeat questions, clarify instructions, he had difficulty following what I was asking him to do and that was quite simple, straightforward even last Wednesday, he had substantially difficulty just keeping up with what I needed him to do so in that sense I do not believe he has the capacity to follow the course of proceedings to know what has happened in a general sense."
Significantly, Dr Pulman expressed similar views to those of Dr Banks regarding the accused's propensity to simply agree with propositions which were put to him without properly understanding them. In particular she gave the following evidence (commencing at T47 L41):
"Q. Right. In terms of telling the Court his version of events, does he have the capacity to understand questions about what happened?
A. If, if the questions are simple, straightforward, not leading questions, he could give you answers that are meaningful. I would be concerned as to whether he might proceed along the path to agreeing to things that were not necessarily the case, based on my interview with him, he would sometimes say, "Oh yes, that is what happened," and then he would come back and say, "I know something else." I would have to go back and clarify, "Can we go back and clear exactly what you mean." If he could answer questionnaires he might have to clarify, "Exactly what do you mean?" That was in a supportive environment so I would be concerned about his giving evidence as to his version of events in a courtroom setting.
Q. Now, I suppose there are two basic types of events
A. Yes.
Q. that might become relevant in a trial. One is the account of concrete events whether or not he did what someone else did, where he went, whether he spoke any words and so on, but beyond that what would be relevant in a trial would be his intention at various particular points of time. In other words some abstract concepts?
A. He would have great difficulty with the abstract concepts. He could, as you said, go through the facts, he was there at a particular day, he went into that room, he did this, he did that, went into this particular room. It is more when you get to more of a conceptual question regarding intent and when it is the conceptual abstract reasoning questions, where he would need to really give a very detailed response in the sense of what he was thinking and why, I think he could struggle with those questions particularly given his capacity for abstract reasoning in a general sense.
...
Q. I think I am getting a different point, is there a danger that he might misunderstand a question and give an answer responsive to the misunderstood question without the Court realising?
A. Yes.
Q. So the Court might think that he has understood a question in fact asked and work on that basis?
A. Yes.
Q. How big is that danger? Is it a remote possibility or not?
A. I think if you are looking at highly probable, remote or reasonable, I would say reasonable probability."
Dr Pulman then gave the following further evidence (commencing at T49 L13:
"Q. Doctor, does his apparent readiness to answer "yes" to a question asked of him indicate anything in particular to you relative to the disability that you diagnosed?
A. Yes, given the extent of his disability it is not unusual to see individuals acquiesce and agree to what you have said or think they are doing the right thing by saying "yes." They quite often feel a bit more uncomfortable saying "No" they say "yes" and I am thinking this is not a "yes" or "no" I am asking an openended question.
Q. Quite apart from those matters, did the instances in those types of answers were given indicate to you a lack of understanding of the question?
A. Yes, it did, it did.
Q. Quite apart from the propensity to answer "yes"?
A. Absolutely. To give an example, we were talking about some of the, what he had been doing during the period he had been incarcerated and we discussed the course he was, he was cooking and doing different hospitality courses. You would ask him "Did you pass the exam?" He would say, "Yes, I passed the exam," and number of people would think a written exam in that and I asked, did that involve him writing, and he would say, "Oh, it was all hands on." Although a simplistic example you might have the inference it was a written exam. It was a two minutes hand on, watching something, doing something."
Dr Pulman specifically cited (T60 L45 - T61 L30) Q and A 351 and Q and A 355 in the ERISP as examples, firstly of the accused's propensity to readily acquiesce to a proposition put to him and secondly, of his inability to understand the impact of questions put to him.
THE RELEVANT PRINCIPLES
In R v Presser (supra) Smith J set out the criteria to be applied when determining the question of the fitness of an accused person to stand trial. His Honour said (at 48):
"...The question, I consider, is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is in an inquiry as to whether he did what he is charged with. He needs to be able 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. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he 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. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel if any."
Subsequently, in Kesavarajah v R (1994) 181 CLR 231 the plurality said (at 245):
"In R v Presser, Smith J elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice. Those standards...require the ability; (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge. "
Their Honours went on to say (at 246):
"...In the context of a trial, fitness to be tried is to be determined by reference to the factors mentioned by Smith J in Presser and by reference to the length of the trial. It makes no sense to determine the question of fitness to be tried by reference to the accused's condition immediately prior to the commencement of the trial without having regard to what the accused's condition will or is likely to be during the course of the trial. There is simply no point in embarking on a lengthy trial with all the expense and inconvenience to jurors that it may entail if it is to be interrupted by reason of some manifestation or exacerbation of a debilitating condition which can affect the accused's fitness to be tried. Of course, that is not to exclude from the jury's consideration the question whether the condition is such that difficulties can be accommodated by an adjournment if and when they arise."
SUBMISSIONS OF THE PARTIES
Submissions of the Crown
The Crown submitted firstly that the DVD recording of the accused's interview with police was of some significance in determining the issue of fitness. The Crown submitted, in particular, that in circumstances where the evidence established that the accused did not have a deteriorating condition, the DVD provided a "snapshot" of his presentation at the time of the alleged commission of the offence, which was the same as his current presentation.
The Crown acknowledged, as I understood it, the difficulties arising out of some of the answers given by the accused to questions put in the interview. The Crown acknowledged, in particular, that it may be open to find that some of the initial answers given by the accused to questions asked of him were inappropriate and/or non-responsive. However, the Crown submitted that it was also evident from viewing the DVD and reading the accompanying transcript that once the relevant issues were clarified, the accused exhibited an understanding sufficient for him to be able to provide a cogent response. This, the Crown submitted, supported a conclusion that with the adoption of an appropriately patient approach, the position could be reached where the accused had a sufficient understanding of all the matters attendant to a trial, and was thus fit.
Submissions of the accused
Senior counsel for the accused firstly submitted that this may be a case in which it was appropriate for me to consider the question of the accused's fitness to be tried separately from the question of his fitness to enter a plea. I should say immediately that I do not consider that it is open to me to take that course. The provisions of the Act do not draw any such distinction.
In terms of the competing psychiatric opinions, senior counsel for the accused firstly relied on the fact that aspects of the history provided to Dr Banks were either objectively incorrect, or at the very least misleading. It was submitted that as a result, two issues arose. Firstly, it was submitted that the incorrect history provided by the accused to Dr Banks highlighted the general unreliability of any statement the accused might make. Secondly, it was submitted that because that history formed, at least in part, the basis for Dr Banks' opinions, the fact that it was incorrect in parts necessarily had a bearing upon whether those opinions should ultimately be accepted.
Senior counsel further submitted that I should find on the evidence that the accused did not meet two particular aspects of the relevant criteria. Firstly, he submitted that the evidence established that the accused lacked an understanding of the nature of the proceedings and lacked the ability to properly follow them. This, it was submitted, was evidenced by his lack of understanding of the respective roles and functions of the principal participants in a criminal trial. Secondly, senior counsel submitted that the evidence established that the accused lacked the capacity to make a defence to, or answer the charge. In this regard it was submitted that I would be satisfied on the evidence that the accused had a fundamental incapacity to properly comprehend things put to him, coupled with clear propensity to respond in the affirmative to questions that were asked of him because of a perception that it was the "correct" thing to do, and in the absence of giving any proper consideration to the question asked.
CONSIDERATION
Both of the experts agreed that the accused has a moderate intellectual disability. The use of the term "moderate" in that context has the capacity to suggest that the disability is less than significant. Dr Pulman explained (T57 L20-32) that the categories of intellectual disability are defined by psychologists (in ascending degree) as "mild", "moderate", "severe" and "profound". Viewed in that way, it might be thought that a "moderate" disability was one of limited significance.
However, the test results of both experts place the degree of the accused's disability into its proper perspective. Those results establish that the accused's intellectual functioning is below 98-99 percent of the normal population. More specifically, those results establish that the accused is a person who exhibits limited attention, poor information processing speed and impaired conceptual reasoning abilities.
Dr Pulman's use of an age equivalent to demonstrate the practical extent of the accused's disability is telling. Dr Pulman described the results of the accused's comprehension tests as being consistent with the results which would be expected from a primary school student in year 2 (T61 L35). As she succinctly put it (T61 L38-39):
"This is not talking about somebody with a mild intellectual disability."
However the existence of a relevant disability does not, by itself, determine the issue of the accused's unfitness. Accepting that the accused's disability is as the experts have described it, consideration must then be given to the results of the application of the Presser criteria. Both Dr Banks and Dr Pulman expressed the view that the accused was able to meet some aspects of the criteria. However, their opinions were divided in relation to two principal matters, namely the ability of the accused to:
(i) understand the nature of the proceedings; and
(ii) follow the course of the proceedings.
Having considered the whole of the evidence, I am not able to accept the opinions of Dr Banks that those particular criteria were met, and that the accused is therefore fit to stand trial.
For the reasons I have already set out, aspects of the history recorded by Dr Banks were either incorrect or at the very least misleading. That is not intended to be a criticism of Dr Banks. However, it remains the case that the accused's history necessarily formed a part of the material upon which Dr Banks based his ultimate opinion. Dr Banks not asked whether his opinion may have been different had the correct information been provided to him. In the circumstances of this case the fact that aspects of the history recorded by Dr Banks were incorrect does not, of itself, cause me to reject the entirety of his opinions. That said, there is merit in the submission advanced by senior counsel for the accused that the fact that the accused was unable to provide accurate information regarding his own personal history is illustrative of the many problems brought about by his intellectual disability.
In terms of the accused's ability to understand the nature of the proceedings, Dr Banks reported that when asked about court procedures, the accused said that the role of the prosecution barrister was to "talk about the evidence" and that when asked about the jury the accused stated "I know he sits on the stand". Taken by themselves, those answers exhibit a fundamental lack of understanding of two primary aspects of a criminal trial.
As I have outlined (at [18]) Dr Banks gave evidence that he construed the accused's statement about the role of the jury as being a reference to the trial judge. However it is apparent from Dr Banks' evidence that he did so only after he had put further questions to the accused. In my view, that demonstrates, without more, a clear lack of understanding on the part of the accused as to the role and function of the jury. The very fact that Dr Banks was required to administer further questioning tends very much in favour of the conclusion that the accused did not initially understand what was being put to him. In these circumstances, I am unable to accept the opinion of Dr Banks (at [18]) that the accused indicated that he had an "appropriate understanding" of proceedings.
Further, having first referred to the jury as the person "who sits on the stand" the additional statements of the accused regarding his understanding of the role of the jury (which were apparently elicited following the further questioning administered by Dr Banks) were the following:
"They talk about things to do with the charge, they want to know more evidence...They look at risk and decide if I did it."
I am not able to accept the conclusion of Dr Banks (at [17] above) that these statements demonstrated an ability on the part of the accused to "sufficiently describe" the jury and its function. The terms of the statements made are, in my view, fundamentally at odds with such a conclusion.
In particular, the accused's apparent understanding that part of the role of the jury is to "look at risk" is plainly wrong. Dr Banks interpreted this as a reference to the jury considering the likelihood of the accused committing further offences. As Dr Banks conceded, that is obviously no part of the jury's function. In my view, his assessment that this reference did no more than "highlight that (the accused) is certainly operating at a basic level" grossly understates the true position. The accused's apparent understanding that part of the jury's function is to "look at risk" is fundamentally at odds with the proposition that he has the capacity to understand the nature of the proceedings.
Dr Banks' opinion that the accused met this part of the relevant criteria was apparently fortified by the answers given by the accused to questions put to him in the ERISP. In my view, the contents of the ERSIP run completely contrary to the proposition that the accused has the capacity to understand and follow the nature of the proceedings.
I have had the opportunity of viewing the DVD footage of the interview in its entirety. That opportunity was not made available to Dr Banks, although it was made available to Dr Pulman. For the entirety of the interview (which extended over 1 hour and 6 minutes) the accused exhibited a flat, blunted and generally expressionless affect. There were, more often than not, long pauses between the question being asked and the answer being given. Those pauses appeared to be at least consistent with difficulties being experienced by the accused in comprehending the questions which were being put to him.
Quite apart from these general observations, the answers given by the accused to specific questions put to him, far from confirming that he is fit to stand trial, do nothing other than support the conclusion of Dr Pulman that the accused's capacity to comprehend is severely compromised to the point where he would not be able to understand or follow the course of the proceedings, and is therefore unfit. In particular, Dr Pulman expressed the view (at [39] above) which I accept, that the passage of questioning from Q and A 351 to 356 demonstrates not only the accused's inability to understand questions put to him but also his propensity (about which both she and Dr Banks were agreed) to simply answer questions affirmatively without really understanding them, and irrespective of whether those answers are correct or not. In this regard it is noteworthy that Dr Banks appeared to concede (at [23] above) that there was what might be described as a general uncertainty as to whether the accused had the capacity to understand any question put to him.
A further issue arises from that part of the opinion of Dr Banks in which he concluded that the accused had the capacity to exercise his right of challenge. It is evident that Dr Banks' did not understand that the reference to "challenge" in the relevant criteria is a reference to the ability of an accused person to exercise his right of challenge to persons called as members of a jury, and that he thought that this was a reference to the capacity of an accused to challenge the evidence. It follows that in this respect, Dr Banks misapplied part of the relevant criteria.
It is noteworthy that Dr Pulman, who correctly applied this part of the criteria, expressed the view that understanding the exercise of the right of challenge is something with which the accused would "struggle" (at [35] above). That opinion is completely consistent with the accused's lack of understanding of the role and function of the jury in general (as demonstrated by his statements to Dr Banks). It provides further confirmation that the accused is unfit to stand trial.
CONCLUSION
For all of these reasons, I am satisfied on the balance of probabilities that the accused is unfit to stand trial. In particular, I am satisfied on the balance of probabilities that he lacks the ability to understand the nature of the proceedings, that he lacks the ability to follow the course of the proceedings and that he is, at the very least, severely compromised in being able to understand, and exercise, his right of challenge.
ORDERS
In those circumstances, I make the following orders:
(1) I find the accused unfit to stand trial;
(2) I refer the accused to the Mental Health Review Tribunal pursuant to the provisions of s. 14 of the Mental Health (Forensic Provisions) Act 1990;
(3) I order that the accused be remanded in custody until such time as effect is given to any determination made by the Mental Health Review Tribunal.
(4) I direct that the Registrar provide to the Mental Health Review Tribunal a copy of Exhibits A to E along with Exhibits 1 and 2 which were before me in these proceedings, together with a copy of these reasons.
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Decision last updated: 29 August 2014
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