Re Filipo

[2011] QMHC 8

MENTAL HEALTH COURT

CITATION:

Re Filipo [2011] QMHC 8

PARTIES:

REFERENCE BY THE LEGAL REPRESENTATIVES IN RESPECT OF ALEXANDER FILIPO

PROCEEDING:

No 0289 of 2011

DELIVERED ON:

21 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2011

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr J M Lawrence

Dr E N McVie

FINDINGS AND ORDER:

1.          There is a reasonable doubt within the meaning of s 268 of the Mental Health Court Act 2000 (Qld) that the defendant committed the alleged offences.

2.          The defendant is fit for trial.

3.          The proceedings for the alleged offences are to be continued according to law.

4.          The reports in the proceedings, and the transcript of the proceedings, are to be released to the parties in the criminal proceedings.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – Fitness for Trial - where the defendant is charged with wilful damage and an offence of serious assault – where there is reasonable doubt the defendant committed the offences – where the defendant suffers from mental retardation – where the defendant’s full scale IQ is 57 – where the defendant was intoxicated at the time of the alleged commission of the offence – where the issue for the Court is the defendant’s ability to properly instruct his counsel and participate in his trial – where there is conflicting expert psychiatric opinion – whether the defendant is fit for trial

Kesavarajah v R (1994) 181 CLR 230

Ngatayi v R (1980) 147 CLR 1

R v M [2002] QCA 464

R v Presser [1958] VR 45

COUNSEL:

Morgan, C for the defendant

Tate, J for the Director of Mental Health

Thomas, J for the Director of Public Prosecutions (Qld)

MacKenzie, DH for the Director of Forensic Disabilities

SOLICITORS:

Legal Aid Queensland for the defendant

Crown Law for the Director of Mental Health

Director of Public Prosecutions (Qld)

Crown Law for the Director of Forensic Disabilities

BODDICE J:

1. Alexander Filipo was born on 20 March 1992.  He is charged with an offence of wilful damage and an offence of serious assault, both alleged to have been committed on 5 March 2010.  His legal representative referred his mental condition at the time of commission of the alleged offences to this Court by reference dated 22 December 2010.

1. The issue for determination is not whether the defendant was of unsound mind at the time of the alleged offences.  The evidence establishes the defendant had voluntarily consumed a large quantity of alcohol on the night of the alleged offences.  It is also possible his drink was spiked with other illicit substances.  That being so, there is a dispute as to the facts such that there is a reasonable doubt as to whether the defendant committed the offences.

1. The issue for determination by this Court is whether the defendant is fit for trial.

Defendant’s background

1. The defendant was born in New Zealand to Samoan parents.  He moved to Australia very early in his childhood.  He attended special school from primary school.  Since leaving school he has not been working.  He was recently placed on a disability support pension.  The defendant has never received outpatient treatment from a psychiatrist or a psychologist. 

1. A psychometric assessment, undertaken by Dr Shelley Keane on 30 June 2010, revealed the defendant’s intellectual functioning fell in the extremely low range – mild mental retardation range.  His literacy skills were significantly and unusually below his intellectual functioning.  His reading ability was well below a functional level.  His IQ was 57. 

1. The defendant has previously come to the attention of the police.   On 8 August 2009, he was charged with contravening a police direction and obstructing police.  He appeared in the Magistrates Court Brisbane on 25 August 2009 where he was discharged absolutely, with no conviction being recorded.

Alleged offences

1. It is alleged that in the early hours of 5 March 2010, the defendant walked to the console area of the 7‑Eleven petrol station at Fairfield and started talking to the operator.  The operator described the defendant as appearing “very scared and drunk”.[1]  The defendant claimed that somebody was trying to kill him.  The console operator told him to leave or he would call the police.  The defendant then climbed over the glass door.  He continued to say someone wanted to kill him and was throwing punches into the air.  Whilst doing so he knocked over the cash monitor and damaged it.  Police subsequently arrived and spoke to the defendant.

   [1]Statement of Zeliag Ren, para 3.

1. According to police, when they arrived the defendant pointed in their direction and yelled repeatedly “the evil”.  He was handcuffed and taken to the police vehicle.  Whilst in the vehicle he bashed his forehead against the cage of the vehicle.  He was unable to speak clearly and had a strong odour of liquor about him.[2]  He was taken to the watch house where he lost consciousness.  An ambulance was called and the defendant was taken to the Royal Brisbane Hospital.  Upon arrival, the defendant became agitated and spat at the face of an ambulance officer. 

   [2]Statement of Amanda Lee Drew, para 19.

Medical reports

1. Dr Shelley Keane, a clinical neuropsychologist, examined the defendant on 30 June 2010 for the purpose of preparation of a report to be used in submissions in instigation of sentences.  As part of this interview, Dr Keane undertook a psychometric assessment.  Dr Keane opined that the defendant’s extremely low intellectual abilities impair his ability to solve problems.  Although he reported seeing someone put something into his drink, “because it was there, he still drank it”.  His intellectual deficits would have impaired his ability to understand the consequence of his actions.  The reports of his behaviour and in particular of lapsing in and out of consciousness would suggest he was suffering a psychotic delirium at the time of the alleged offences.

1. In a subsequent report dated 18 October 2010, Dr Keane opined that the defendant is not fit for trial.  Whilst he had a very limited understanding of the nature of the charges against him, and understood the Court proceeding was an inquiry into those allegations, he had a very limited understanding of the nature of the evidence that could be used against him and was unable to give any account of the offences itself.  It is likely he would become confused and would not be able to understand or answer questions.  He would also have great difficulty in following a trial and understanding what was being presented to him.  His memory capacity was such that it is doubtful he had the ability to process what was happening in Court even if the proceedings were slowed significantly.  It is doubtful he would have the capacity to follow and recall what was being said sufficiently to be able to instruct his legal advisers.  These difficulties would not be overcome even if he were made a special witness.  This inability arises from natural mental infirmity and is permanent.

1. Dr Keane confirmed this opinion in oral evidence. Whilst the defendant had the capacity to understand the nature of the charge and its consequences,[3] to plead to the charge[4] and to understand the nature of the proceedings,[5] he does not have the capacity to follow the proceedings.  His lack of recall and his inability to process the significance of continuing evidence meant he could not follow the evidence sufficiently to be able to challenge it and make a defence or answer the charge.[6]

   [3]T 1-14/50.

   [4]T 1-15/1.

   [5]T 1-15/20.

   [6]T 1-17/30-50; see also T 1-15/40.

1. Dr Scott examined the defendant on 30 March 2011, specifically for the purpose of assessing his mental condition at the time of the offences and his fitness for trial.  He opined that the defendant had a mental illness (a psychotic episode) and natural mental infirmity, although he accepted an alternate explanation for his behaviour on the night in question was the effect of alcohol intoxication or acute alcohol withdrawal on a young man with an intellectual disability. 

1. Dr Scott opined the defendant had the capacity to meaningfully participate in the trial.  Whilst Dr Keane’s testing had established a full scale IQ score of 57, the defendant “was a co-operative historian and maintained good eye contact”, his judgment was not acutely impaired, he had “reasonable insight into his intellectual disability” and it was easy to establish a rapport with the defendant.  The defendant described previously appearing before a Magistrate. 

1. Dr Scott concluded:

“The current allegations against Mr Filipo are relatively straightforward.  At interview Mr Filipo volunteered that in relation to his current charges, what he did at the service station and hospital ‘was wrong’ and that he might be punished by being sent to gaol.  He professed a strong motivation never to use alcohol to avoid any further unfortunate incidents.  He evinced an appropriate regret and embarrassment for his alleged offences.

Currently, Mr Filipo has the following capacities

•          to understand what he is charged with and the nature of proceedings

•          to exercise his right of challenge

•          to follow court proceedings

•          to understand the substantial effect of evidence that may be given against him

•          to make a competent plea to his charge and to instruct solicitors

Legal proceedings would not cause serious adverse consequences to Mr Filipo’s mental condition.”

1. Dr Scott maintained that opinion in oral evidence.  He did not accept the defendant was a poor communicator, giving one or two word answers.[7]  The defendant was able to give a history and answer questions.  Whilst the defendant may have difficulties linking new information to conclusions, he would work his way through this with frequent adjournments and the assistance of counsel.[8]

   [7]T 1-43/60.

   [8]T 1-46/45.

Assisting psychiatrists

1. Dr Lawrence advised that whether the defendant was fit for trial was finely balanced.  Whilst the defendant had an extremely low IQ, it was difficult to make an assessment of his responses in circumstances where neither Dr Keane nor Dr Scott had addressed his intellectual deficit in the context of his functionality in the world.[9]  Further, Dr Scott had failed to record the particular responses during the course of his interview.  Dr Lawrence agreed that the defendant’s intellectual deficit would significantly impair his ability to follow and comprehend the trial process and to make decisions about complex evidence, but felt “he could probably do it with a good deal of considerable help”.[10]  Ultimately, Dr Lawrence favoured a finding of unfitness for trial but considered it “marginal”.[11] 

   [9]T 1-64/50.

   [10]T 1-65/60.

   [11]T 1-66/20.

1. Dr McVie concurred with Dr Lawrence’s advice that any finding as to fitness for trial was marginal but advised that Dr Keane’s opinion ought to be accepted.[12]

   [12]T 1-68/40.

Submissions

1. The defendant submits that Dr Keane’s opinion as to fitness for trial ought to be preferred over that of Dr Scott.   The defendant’s extremely low IQ, together with his extremely low level of verbal functioning, render him incapable of understanding the Court processes sufficiently so as to properly instruct counsel.  Whilst the defendant may be able to understand a particular point in the trial and give instructions, Dr Keane noted that his extremely poor memory, together with his inability to retain and recall information, would make it extremely difficult for him to follow Court proceedings such as to understand the significance of previously given evidence when giving instructions as to whether subsequent evidence ought to be the subject of challenge. 

1. The defendant’s legal representative further submits that Dr Scott’s opinion ought not to be accepted.  Dr Scott did not keep notes of his interviews with the defendant, and in those circumstances, his evidence that the defendant was forthcoming at interview ought not to be accepted having regard to Dr Keane’s evidence as to the defendant’s limited ability to converse at the time of her interview.

1. The Crown submits that Dr Scott’s opinion ought to be preferred over that of Dr Keane.  Dr Keane interviewed the defendant for the purposes of a sentencing report and psychometric testing and did not specifically address at interview the issues relevant to fitness for trial.[13]  By contrast, Dr Scott specifically addressed the defendant’s ability to meet the requisite capacities to satisfy the fitness for trial.  Whilst Dr Scott may not have kept a record of what was said by the defendant in the course of the interview, his report was prepared shortly after that interview.  Further, his observations as to the defendant’s ability to describe the circumstances and outcome of his previous appearance in Court, as to the circumstances of his alleged offending, and as to the consequences of the trial, support a finding of fitness for trial.  The difference in the defendant’s level of communication with Dr Keane is explained by the fact that the defendant’s mother was present for that assessment whereas Dr Scott interviewed the defendant alone.

   [13]T 1-20/20-30.

The law

1. Schedule 2 of the Mental Health Act 2000 defines fit for trial as:

“… fit to plead at the person’s trial and to instruct counsel and endure the person’s trial, with serious adverse consequences to the person’s mental condition unlikely.”

1. Whether a person is fit for trial is to be assessed in a reasonable and commonsense fashion with due recognition that the person will be represented by counsel, and that Court proceedings may be structured to accommodate the person’s disability.[14]  In this respect, it is relevant to consider the nature of the proceedings.[15]  It is not necessary for the person, in order to be tried fairly, to appreciate the nuances of court procedure or the intricacies of the substantive law,[16] or to have an ability to have a close comprehension of the forensic dynamics of the courtroom, whether as to the factual or legal contest.[17]  In Ngatayi v R, Gibbs, Mason and Wilson JJ said:

“… in deciding whether an accused is capable of understanding the proceedings so as to be able to make a proper defence it is relevant that he is defended by counsel.  If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand the law.  With the assistance of counsel he will usually be able to make a proper defence.”[18]

[14]Ngatayi v R (1980) 147 CLR 1 at [8]

[15]Ngatayi v R at [8] – [9].

[16]R v M [2002] QCA 464 at [5].

[17]R v M at [13].

[18]Ngatayi v R at [9]

1. In Kesavarajah v R,[19] Mason CJ, Toohey and Gaudron JJ said:

“In Reg 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 [1958] VR 45 at 48. Those standards, which are based on the well-known explanation given by Alderson B to the jury in R v Pritchard (1836) 7 Car & P 303 at 304; 173 ER 135 at 135, 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 to the charge.”[20]

[19](1994) 181 CLR 230

[20]See R v Presser [1958] VR 45 at 48; approved in Kesavarajah v R (1994) 181 CLR 230 at 243 – 245.

1. A person cannot be permitted to escape trial “simply by showing that he is of low intellect”.[21]  The test for a fair trial:

“… looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite a high order, particularly in cases where intricate legal questions arise.  It is notorious that many crimes are committed by persons of low intelligence, but it has never been thought that a person can escape trial simply by showing that he is of low intelligence.  We respectfully agree with the view expressed by Smith J in Reg v Presser [1958] Vic Rp 9; (1958) VR 45, at p 48 that the test needs to be applied ‘in a reasonable and commonsense fashion’. Smith J went on to say that there are certain minimum standards which the accused needs to equal before he can be tried without unfairness or injustice, but added that the accused ‘need not have the mental capacity to make an able defence’.”[22]

[21]Ngatayi v R at [8].

[22]Ngatayi v R at [8].

1. As to the capacity to instruct counsel, fitness for trial:

“… posits a reasonable grasp of the evidence given, capacity to indicate a response, ability to apprise counsel of the accused’s own position in relation to the facts, and capacity to understand counsel’s advice and make decisions in relation to the course of the proceedings.  It does not extend to close comprehension of the forensic dynamics of the courtroom, whether as to the factual or legal contest.  For a person represented by counsel, fitness for trial of course assumes that counsel will represent the client on the basis of the client’s instructions.  That the giving of such instructions may take longer because of intellectual deficit is a feature with which courts should and do bear.”[23]

[23]R v M at [13].

Findings

1. There is no doubt the defendant is a person with an extremely low IQ and with limited communications skills.  Dr Keane’s psychometric testing supports such a conclusion.  However, that conclusion does not mean the defendant is not fit for trial.  Resolution of that issue requires an assessment of the conflicting opinions of Dr Keane and Dr Scott.

1. The difficulty confronting the Court in forming an assessment as to which of the opinions proffered by Doctors Keane and Scott ought to be preferred is that each undertook their assessment of the defendant for differing purposes.  Dr Keane was not initially asked to assess the defendant’s fitness for trial, and did not specifically ask questions as to fitness for trial in the courtroom.[24]  By contrast, Dr Scott specifically addressed that issue in his interview with the defendant. 

   [24]T 1-20/20-30.

1. Resolution of the issue of fitness for trial is finely balanced in the present case.  However, having considered the evidence of both Dr Keane and Dr Scott, I accept and prefer the opinion expressed by Dr Scott as to the defendant’s fitness for trial.  Whilst Dr Scott’s report can properly be criticised for failing to include within it the defendant’s specific responses to the questions asked of him, his conclusion that the defendant is fit for trial was made in the context of an interview with the defendant for the specific purpose of determining the defendant’s fitness for trial.  Dr Keane’s interview was not for the purposes of addressing fitness for trial, and did not involve specific questions in respect of that matter.  This difference is significant, particularly in a matter which is finely balanced.  I accept Dr Scott’s evidence as to how forthcoming the defendant was in his interview with Dr Scott, and that he provided a history and answers to questions. 

1. Dr Keane’s opinion was based on her assessment of the defendant as having extremely limited communication skills during her interview.  Her experience was that the defendant provided one or two word answers.  That was contrary to his presentation before Dr Scott.  Dr Keane accepted the difference in the level of communication she experience from that experienced by Dr Scott could be due to the defendant relying on his mother to provide information.[25]  I am satisfied the difference is explained by the fact that Dr Scott interviewed the defendant alone, whereas Dr Keane conducted her interview and assessment in the presence of the defendant’s mother.  It is understandable the defendant was far less forthcoming in the presence of his mother than when he was alone with the medical practitioner undertaking the assessment.

   [25]T 1-22/30.

1. Dr Keane accepted the defendant had many of the requisite capacities necessary for a finding of fitness for trial, but expressed concern as to the defendant’s ability, having regard to his lack of recall and inability to retain information, to be able to follow the course of the trial and provide appropriate instructions during the trial.  Whilst Dr Keane opined that the difficulty would not be addressed by frequent adjournments, I am satisfied that the adaptation of the trial process to allow for regular adjournments, together with a careful approach by Counsel to the taking of instructions during the course of the trial, will ensure the defendant will receive a fair trial.  Courts regularly adjust to accommodate the varying needs of persons appearing before the Court.[26]

   [26]R v M at [16]; see also [18].

1. In reaching this conclusion, I have had regard to the nature of the alleged offences, the likely length of a trial, and the complexity of issues likely to arise at trial.  The elements of the alleged offences are not complex, the evidence is in short compass, involving a limited number of witnesses, and dealing with any expert evidence in relation to any issue of involuntary intoxication is not likely to require extensive instructions.  In any event, the lack of recall of the events on the night in question by the defendant is explicable by his ingestion of a large quantity of alcohol.[27]

   [27]T1-21/50, T1-38/10

1. In reaching my conclusions, I have also had regard to the advice of the assisting psychiatrists.  Whilst that advice ultimately favoured a finding of unfitness for trial, both psychiatrists accepted the issue was finely balanced.  Further, their advice was premised on an acceptance of Dr Keane’s evidence over that of Dr Scott.  Ultimately, I accept and prefer the evidence of Dr Scott. 

Conclusions

1. I am satisfied that the defendant, notwithstanding his extremely low intellectual capacity, is fit for trial.

1. I order:

1.          There is a reasonable doubt within the meaning of s 268 of the Mental Health Court Act 2000 (Qld) that the defendant committed the alleged offences.

2.          The defendant is fit for trial.

3.          The proceedings for the alleged offences are to be continued according to law.

4.          The reports in the proceedings, and the transcript of the proceeding are to be released to the parties in the criminal proceedings.