Re GAF

[2009] QMHC 28

MENTAL HEALTH COURT

CITATION:

Re GAF [2009] QMHC 28

PARTIES:

REFERENCE BY THE PATIENT’S LEGAL REPRESENTATIVE IN RESPECT OF GAF

PROCEEDING NO:

No 0157/2008

DELIVERED ON:

18 December 2009

DELIVERED AT:

Brisbane

HEARING DATES:

9, 11 December 2009

JUDGE:

Philippides J

ASSISTING PSYCHIATRISTS:

Dr F T Varghese
Dr E N McVie

FINDINGS AND ORDERS

1.     There is a reasonable doubt that the defendant committed the alleged offences;

2.     The defendant is fit for trial; and

3.     The proceedings are to continue according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with five counts of rape, six counts of indecent treatment of a girl under 16 years, six counts of indecent treatment of a girl under 16 years as a carer, one count of indecent treatment of a girl under 16 years (expose) as a carer, one count of unlawful carnal knowledge against the order of nature, and one count of unlawful anal intercourse as a carer – where there is a reasonable doubt as to the commission of the alleged offences due to a dispute of fact – where dispute not attributable to any mental illness – where defendant is intellectually disabled – where conflicting expert evidence as to the defendant’s fitness for trial – whether defendant fit for trial

Mental Health Act 2000 (Qld), Schedule 2
Mental Health Act 2000 (Qld), s 267

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:

Mr D Shepherd for the Defendant
Mr K Fisher for the Director of Mental Health

Mr B Campbell for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)

PHILIPPIDES J:

Background

1. The defendant is charged with a number of sexual offences said to have occurred between 31 December 1988 and 14 March 1991.  They are, five counts of rape, six counts of indecent treatment of a girl under 16 years, six counts of indecent treatment of a girl under 16 years as a carer, one count of indecent treatment of a girl under 16 years (expose) as a carer, one count of unlawful carnal knowledge against the order of nature, and one count of unlawful anal intercourse as a carer.  The complainant in each case is said to be the defendant’s step-daughter.

1. The matter of the defendant’s mental condition in relation to the alleged offences was referred to the Court. 

1. The unanimous evidence before the Court is that the defendant suffers from an intellectual disability, however the extent of the disability was the subject of differing opinion.

1. The defendant disputes the allegations against him and it is clear that the dispute does not arise as a consequence of the defendant’s mental condition. In the circumstances, I am satisfied that there is a reasonable doubt as to the commission of the alleged offences such that a decision under s 267 of the Mental Health Act 2000 (Qld) is precluded.

1. The only issue in dispute in the present proceedings is whether the defendant is fit to stand trial in respect of the charges the subject of the reference.

Fitness for trial – applicable legal principles

1. The issue in contention on this reference is whether the defendant is fit for trial. The expression "fit for trial" is defined in Schedule 2 of the Mental Health Act 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. The test for determining fitness for trial as set out in R v Presser [1958] VR 45, and approved in Kesavarajah v R (1994) 181 CLR 230, was explained by Mason CJ, Toohey and Gaudron JJ at 245 of the latter decision as follows:

“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 [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 the charge.”

1. A reasonable and commonsense approach is taken to the application of the Presser criteria as the High Court observed in Ngatayi v R (1980) 147 CLR 1 at 8:

“The test 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 R v Presser [1958] VR 45, 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’.”

1. The Presser test as to fitness for trial was applied in respect of the Mental Health Act by the Court of Appeal in R v M [2002] QCA 464. There the Court observed that, in approaching the issue of fitness for trial, it is not to be overlooked that a defendant is represented by counsel; accordingly it is not necessary that a defendant understand the nuances of court procedure or the intricacies of substantive law (at [5]). Rather, fitness for trial should be assessed in the recognition that a defendant is represented by counsel and that court proceedings may be structured in order to accommodate disability (at [7]). The Court further observed that:

“Fitness for trial, in relation to the capacity to instruct counsel, 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.”

The clinical evidence

Ms Scheldt’s assessment

1. An intellectual assessment of the defendant was conducted in 2003 by Ms Scheldt (a psychologist) who administered the WAIS-R intelligence test. She assessed a verbal IQ of 65 and a performance IQ of 71.  She noted that the defendant achieved a Full Scale IQ of 67, placing him in the mild range of intellectual disability.  In her report of 12 May 2003, she noted that while the defendant’s education was very limited (he only briefly attended a special opportunity school), he had maintained casual employment working in unskilled jobs and had a licence and drove a car.  She described his day to day functioning as “at a reasonable level”.  The defendant, who was twice married, lived with his wife and was able to cook and assist around the house.  As he was unable to read and write, he could not handle money or shop independently.

Dr Douglas

1. More recently, Dr Douglas (psychologist) assessed the defendant on 4 March 2009 and prepared a report dated 23 March 2009.  She administered the WAIS-III IQ test, the WRAT-3 reading test, the Peabody Picture Vocabulary Test – Third Edition, the Rey Tangled Lines Test, the Beery Buktenica Developmental Test of Visual-Motor Integrations, the Weschler Memory Scale – Third Edition, the Rey Auditory Verbal Learning Test (RAVLT), the Rey 15 Item Test and the Test of Memory Malingering (TOMM).

1. In her report, she stated in relation to the issue of cognitive effort and motivation:

“Without fail [the defendant’s] performance on every motivational task administered was uniformly indicative of a gross exaggeration of deficit (TOMM: Trial 1 17/5-, Trial II 5/20; Rey 15 Item Test: Combined score 2/30; RAVLT Recognition: 0/15).  There was direct evidence for deliberately biased responding as indicated by the performance on the TOMM that was significantly below chance for both trials, with the second trial being performed at a worse level than the first. …

In addition, his responses on the Rey 15 Item test [which yielded a score of 2] … is abnormally below that of even mentally retarded individuals who commonly obtain scores of 9 or higher on this effort test on the combined recall and recognition trial… Many studies have shown that individuals feigning cognitive impairment will suppress performance on the recognition trial of the RAVLT…

Given this data, it is impossible to accurately and reliably determine what this individual’s actual level of cognitive functioning might be.  His test-taking approach, which was clearly oriented towards presenting himself in the most negative light possible, undermines the assessment process …”

1. Dr Douglas made the following observations in respect of inconsistencies between her behavioural observations and the defendant’s test performance:

“[The defendant’s] observed behaviour during testing was notably at odds with the scores obtained on formal assessment. … His obtained test scores, if considered valid, would suggest this individual is so intellectually impaired he would be incapable of independent living, can apparently comprehend and process information at the level of a 1-2 year old child and should be considered a significant risk if he continues to drive.  This is clearly not the individual who sat with me in the assessment room and was capable of engaging in casual age-appropriate conversation, could recall personal history in detail, could give detailed information about his daily activities, and follow questions presented to him as long as they were not part of the formal assessment. …”

1. Dr Douglas further commented:

“The current assessment data clearly reveals that [the defendant] was not applying an adequate level of effort during this assessment and thus his obtained scores cannot be used to determine a reliable and accurate estimation of his actual cognitive capabilities at this time.  In addition, [the defendant’s] obtained test scores were uniformly reflective of an apparent severe devastation in cognitive function that suggested his individual functions at a level equal to or better than no more than 1 percent of the general population….”

1. Dr Douglas concluded:

“[The defendant’s] performance on the current psychological assessment is, in my clinical opinion, indicative of a grossly unsophisticated effort on the part of this individual to present himself as being more cognitively impaired and dysfunctional than is the case.  His pattern of test responses is inconsistent with that of mentally retarded individuals and is instead highly indicative of an individual who is attempting to feign/exaggerate cognitive insufficiency – as evidenced by random guessing, one-off responses, below chance responding patterns, scores abnormally below that of mentally retarded individuals, recantation scores that were as poor as free recall scores, and worse recognition after increased exposure to the material to be learned.  In addition, when removed from the structure of the assessment itself, [the defendant] was more than capable of providing historical details for events of personal interest, engaging in age-appropriate conversation, demonstrating adequate knowledge of daily activities and schedules etc, all of which would be belied by scores on formal testing ...”

1. Dr Douglas’ oral evidence was in accordance with her report.  She considered that the defendant was fit for trial, pointing out that she had seen no evidence to support the contention that he did not meet the Presser criteria.

Mr Perros

1. Mr Perros (psychologist) provided a report dated 17 July 2009.  He expressed reservations as to use of the TOMM in the defendant’s circumstances:

“The use of the TOMM with intellectually disabled litigants is controversial. However the number of errors produced by [the defendant] (33/50 on Trial 1 and 45/50 on Trial 2) is ridiculously high; the cut-off for malingering is 5 errors. In order to produce those scores [the defendant] would have had to be consciously selecting the wrong response.

I have since spoken by phone with Dr Douglas to discuss her assessment of [the defendant].  She said she saw [the defendant] alone.  I think it obvious that [the defendant] did not cooperate with her and would respectfully recommend against drawing any clinical inferences from that data.  In my experience the TOMM is also sensitive to lapses in attention, but I would expect [the defendant] to make no more than 8 to 15 errors in the first trial, and around 8 errors on the second trial.  The only interpretation I would make is that [the defendant] was being oppositional and that his ‘true’ memory function hovers around the below average range due to his inability to stay focused…”

1. In his report, Mr Perros expressed his opinion as to the defendant’s fitness for trial as one of “marginal fitness”.  In this regard he stated:

“I believe he is marginally fit to stand trial and to instruct, but expect he will not be able to follow the court proceedings independently.  He will not follow legal jargon and may need to have someone paraphrasing what is being said in court.  His limited language skills will make it difficult for him to express himself, and he could become extremely frustrated and angry…

While I acknowledge the results of the TOMM as being consistent with exaggeration of memory problems, the TOMM is also sensitive to a range of other psychological, personality and cognitive factors that in this case have not been properly assessed…

[The defendant] is a mildly intellectually disabled and illiterate 63 year old man who relies on his wife for assistance with day-to-day activities.  She shares many of his unusual and problematic charaterological traits; she seems to control him by manipulations.

[The defendant] essentially understands what he has been charged with, but I believe he needs assistance to provide instructions due to a communication disorder, and I doubt he would understand Court proceedings unaided.”

1. In oral evidence, Mr Perros placed the defendant’s Full Scale IQ in the 70-75 range, and considered the defendant should be seen as in the borderline to mildly intellectually disabled range. He maintained the view that the matter was “close to the line”, but that the defendant fell on the side of being fit for trial, albeit only marginally, and only with assistance being provided.  I note some doubt expressed by Mr Perros as to the defendant’s ability to understand the nature of the proceedings as an inquiry into his guilt, although that was not a view shared by Dr Fama.  Moreover, Mr Perros waivered on this issue, stating that it was “hard to say what [the defendant] really knows”.

Dr Fama

1. Dr Fama examined the defendant on 10 June 2008 and provided a report dated 13 June 2008, in which he opined that the defendant was unfit for trial “by reason of want of understanding, which has arisen from his mild mental retardation coupled with profound educational lack”.  In his report, Dr Fama stated:

“[The defendant] does understand the nature of the charges when they are explained to him in detail, to his consternation and dismay.

Though he knows that a plea of NOT GUILTY means ‘didn’t do it’, [the defendant] seemingly perversely offers no explanation of GUILTY.  However, he has in the past adequately explained that term and I do not accept that he is unable now to grasp it.  Rather, he may be offering stout resistance to any possible suggestion that he may have done wrong.

[The defendant’s] understanding of proceedings in a court of criminal law stops there.

Despite my careful repeated explanations, he is unable to recount what might be the functions of a witness, the jury and lawyers.

He even supposes that his defence lawyer’s job might be to ‘get you in trouble’.
…
[The defendant’s] instructions to counsel would be basically an angry, repeated proclamation that he has been falsely accused by a lying complainant.  Often, not much more than that is available from defendants in sexual offence cases.  [The defendant] cannot say what else he might tell his lawyer, or what particular questions he might want asked of the witnesses.  I think his ability to instruct counsel to be questionable.
…
[The defendant’s] mental retardation is a fixed disability, and it would be unrealistic to expect that significant improvement could be achieved by a renewed attempt at formal education at his age.  I regard him a (sic) permanently unfit for trial.”

1. Dr Fama stated that he was not qualified to comment upon the TOMM in respect of the issue of malingering.  He acknowledged that questions as to malingering were raised by the psychological testing, but discounted that prospect, instead taking the view that the defendant’s poor effort should be seen in terms of an oppositional attitude.  Nevertheless, in giving oral evidence Dr Fama seemed to reassess his earlier opinion that the defendant was “clearly” unfit for trial, and it is fair to say that he moved away from that position to one where he accepted that the matter of the defendant’s fitness was probably fairly marginal; “more like 55 per cent to 45 per cent”. 

1. Dr Fama indicated that in respect of the Presser criteria, the primary areas of concern were the defendant’s ability to follow the course of the proceedings, to understand the substantial effect of any evidence that may be given against him and to make a defence or answer the charge.

Dr Reddan

1. Dr Reddan examined the defendant on 2 December 2008 and 17 February 2009.  She prepared a report dated 3 March 2009 in which she opined that the defendant was fit for trial, stating:

“[The defendant’s] presentation and history suggests that he may be a person of borderline intellect or mildly mentally retarded.  However, his presentation at both interviews and when tested by Dr Lucille Douglas suggests that [he] is exaggerating his degree of cognitive impairment. …

Although [the defendant] may struggle with recalling at a trial spontaneously all that a witness says in evidence, it is likely that he could manage with assistance and there is certainly nothing to suggest that any intellectual impairment he has is more than mild. …

Thus, although [the defendant] will require assistance at trial, I am not persuaded that his degree of intellectual impairment or his functional impairment is such as to render him unfit for trial within the meaning of the Mental Health Act 2000.”

1. In oral evidence Dr Reddan reiterated that the results of the TOMM meant that one could not place much reliance on the defendant’s formal testing to assess his actual intellectual functioning or cognitive abilities.  She indicated that she favoured the view that the defendant fell into the mildly intellectually disabled range.  In respect of the Presser criteria, she accepted that the defendant would have difficulty following the course of proceedings, instructing counsel and making a defence or answer to the charges.  Nevertheless, she considered that these difficulties could be overcome with assistance from the defendant’s legal representative and appropriate adjustment to court proceedings.

Conclusion

1. The general effect of the evidence was that the defendant suffers from an intellectual disability which falls in the mid-mild to borderline range.  As Dr Varghese noted in advising the Court, in assessing intellectual capacity regard may be had to overall functional capacity, and in that regard he noted the defendant’s apparent ability to work for periods in low-skilled areas and to obtain a drivers licence. 

1. The experience of all the reporters was that the defendant failed to cooperate in the testing of the extent of his disability.  While Mr Perros did not see the TOMM as an appropriate indicator of malingering, he nevertheless considered that the testing demonstrated an oppositional stance by the defendant and in this respect took a position closer to that of Dr Fama.  But, given that the defendant does not have dementia, his response to testing does suggest that he was deliberately seeking to show that he suffered deficits in short term memory, thereby raising the issue of malingering.  Both Drs Reddan and Douglas considered the element of malingering as significant in the present case. 

1. Drs Douglas and Reddan considered the defendant to be fit for trial, as did Mr Perros.  While Dr Reddan and Mr Perros considered the fitness to be marginal, they considered that areas of concern in terms of the Presser criteria could be addressed with appropriate assistance from legal representatives and accommodation by the Court.  Dr Fama also saw the matter as a marginal one, but took a different view, considering that the defendant probably fell on the side of unfitness.  However, my impression was that he was influenced in that view by his discounting of malingering.  In that respect, I prefer the views of Drs Douglas and Reddan that the defendant’s lack of effort should be seen in the context of a deliberate attempt to exaggerate his intellectual disability, rather than simply a demonstration of an oppositional attitude. 

1. In terms of the concerns raised by Dr Fama, I note that Dr Fama accepted that the defendant was able to understand the nature of the proceedings, as being an inquiry as to whether he had committed the offences charged, but that he was concerned about the defendant’s ability to grasp why the jury was present, and the role of the witnesses, the prosecutor and the other participants in a trial.  I note Dr Varghese’s advice that the clinical data with respect to the defendant’s functioning indicates that he ought to be able to be educated in respect of such matters as the function of the jury, the Judge and those other aspects of the Court process about which Dr Fama expressed doubt.  Moreover, I am satisfied that the evidence indicates that the defendant would be able to follow what a witness was stating and to express any disagreement to his legal representative.  Dr Fama raised the potential for difficulty in the defendant maintaining focus on the evidence over a period of time and in understanding the evidence sequentially.  However, with the assistance of his legal representative and accommodation by the Court, I consider that such difficulties could be overcome.  Furthermore, this is not a case where the evidence indicates that the defendant is suggestible and thereby unable to withstand cross-examination.  On the contrary, when questioned by the reporters the defendant was most emphatic as to his view that the allegations against him were untrue and he was also able to attribute a motivation to the complainant.  I consider that the evidence presented indicates that the defendant would be able to endure a trial without serious adverse consequences to his mental condition. 

1. In the circumstances, I find the defendant to be fit for trial.  The proceedings will therefore continue according to law.