Re Ikr

[2015] QMHC 6

MENTAL HEALTH COURT

CITATION:

Re IKR [2015] QMHC 6

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF IKR

FILE NO/S:

No 208 of 2014

DELIVERED ON:

27 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

17 June 2015

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr E McVie
Dr F Varghese

ORDER:

1.   At the time of each of the alleged offences the subject of the amended reference, the defendant was not suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act 2000 (Qld).

2.   In respect of each of the alleged offences, the defendant is fit for trial.

3.   Each of the alleged offences is to proceed according to law.

4.   Copies of the reports and of the transcript of these proceedings are to be provided to the parties in the criminal proceeding.

CATCHWORDS:

MENTAL HEALTH - DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the Defendant was charged with breach of bail, wilful damage, attempted arson, arson and assaulting or obstructing a police officer – where the defendant was mildly mentally impaired –  where it was accepted the defendant was not of unsound mind at the date of the alleged offences – whether the defendant was currently fit for trial – whether the defendant would be fit for trial if the trial procedure was modified

Mental Health Act 2000 (Qld)

COUNSEL:

M D Lehane for the Director of Public Prosecutions
J Tate for the Director of Mental Health
S Dullaway for the Director of Forensic Disability

J D Briggs for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions

Crown Law for the Director of Mental Health
Crown Law for the Director of Forensic Disability

Legal Aid Queensland for the Defendant

1. BODDICE J:  By Notice of Reference filed 31 July 2014, and Amended Reference filed on 16 October 2014, Legal Aid Queensland referred to this Court the mental condition of IKR at the time of alleged offences of wilful damage on 29 January 2014, arson on 30 January 2014, breach of bail and assault or obstruct a police officer, both on 13 February 2014, assault or obstruct a police officer on 7 March 2014, and two alleged offences of attempted arson on 17 August 2014.

2. The schedule of exhibits includes the Court brief and associated supplementary material, together with reports from Professor Nurcombe, Dr Beech and Dr Hatzipetrou.  Professor Nurcombe and Dr Beech also gave oral evidence at the hearing.

3. There is no dispute the defendant was not suffering unsoundness of mind at the time of any of the alleged offences.  At issue is whether the defendant is fit for trial.

   Background

4. The defendant was born on 2 August 1997.  Formal psychiatric assessments undertaken at the age of 16 years suggest the defendant suffers from a mild mental intellectual disability.  Her scores for full scale IQ, verbal comprehension, perceptual reasoning and working memory are all in the borderline range.  Verbal fluency, in particular, was extremely low.  The defendant also demonstrated moderate difficulties maintaining concentration on a practical task.

5. The defendant has been educated at a special school since she was in Year 2.  Her parents separated when she was approximately 9 years of age.  The defendant subsequently complained that her father had sexually abused her.  This complaint, reported to police, was not pursued due to a lack of evidence. 

6. The defendant first came to the attention of police when she was about 12 years of age.  Initially, this was in relation to allegedly making prank phone calls.  Her formal criminal history indicates she was subsequently charged on two occasions with making multiple calls of an improper or vexatious nature, including improper use of the emergency call service.

   Alleged offences

7. The first alleged offence in time concerns an allegation the defendant used tools to engrave letters in the timber railing of a residence occupied by her aunt.  The defendant, when interviewed by police the following day, allegedly told them she was angry and was attempting to write “I hate this place” before her aunt prevented her from finishing that writing.  The defendant said she knew she could get into serious trouble and that what she had done was wrong.

8. The alleged offence of arson related to an incident in which the defendant started a fire inside her aunt’s residence.  When interviewed by police, the defendant allegedly admitted to setting two fires in the residence.  Again, she said she knew it was wrong, and that she would get into trouble for it.

9. The alleged offences on 13 February 2014 relate to allegations the defendant breached a curfew condition of her bail and failed to stop when called upon by police.  The defendant allegedly told police she recognised they were police but still decided to run away.

10. The alleged offence on 7 March 2014 related to an incident on the footpath of a street. Police called out “stop”, to the defendant, who allegedly turned and ran from them.  When questioned by police, the defendant said she did not want to be caught. 

11. The two remaining alleged offences of attempted arson relate to fires the defendant lit in a shopping centre in Morayfield.  One of these fires caused significant water damage as a consequence of the fire alarm and sprinkler system being activated during the incident.  Again, the defendant allegedly made full admissions to lighting the fires when interviewed by police.

    Reporting psychiatrists

12. Professor Nurcombe interviewed the defendant on 5 May 2014.  He reported the defendant was friendly and reasonably co-operative throughout a 90 minute interview.  The defendant’s activity level neither increased nor decreased during the interview, although her eye contact wandered at times.

13. Professor Nurcombe noted the defendant’s developmental milestones had all been delayed and previous assessments suggested her verbal and non-verbal reasoning abilities were in the extremely low range.  Her class teacher had found her to be functioning at an extremely low level on all areas of testing, including perceptual reasoning, social confidence and practical confidence.  Neuropsychological testing in February 2014 had recorded scores in the borderline range for her ability to define words, general knowledge and abstract verbal and non-verbal reasoning skills.  Her memory was in the borderline range with regard to registration.  Her delayed recall was low average. 

14. Professor Nurcombe opined that based on past testing, and the results of his own assessment, the defendant suffers from a natural mental infirmity, namely borderline or mild mental retardation.  This condition is serious, and chronic.  Whilst mild in severity, it has a poor prognosis and is irredeemable.

15. After administering testing models, Professor Nurcombe opined that whilst the defendant had some familiarity with the Court process, and understood the nature of the offences, she had little understanding of the purpose of a trial, her possible pleas, and their implications.  She had no idea of the concept of plea bargaining and did not understand the role of some participants in the process.  The defendant also had limited verbal abilities and limited capacity to respond logically or relevantly to questions.  In Professor Nurcombe’s opinion the defendant was, as a consequence, unfit for trial.  That unfitness was permanent.

16. Dr Beech interviewed the defendant for approximately two hours on 4 March 2015.  Dr Beech noted that the defendant had suffered a significantly prejudicial childhood and had a history of learning problems and special school placement.  Earlier psychometric testing revealed very low intelligence scores.  More recent testing suggested the defendant had a full-scale IQ of 70, within the range of intellectual functioning that borders between intellectual disability and low average intelligence.  There was associated executive function deficits.  Dr Beech also considered the defendant suffered from a chronic, moderately severe post-traumatic stress disorder.  She also displayed many of the traits of a borderline personality disorder, including anger, self-harm and impulsivity.

17. In Dr Beech’s opinion, the defendant, notwithstanding her intellectual difficulties, was able to understand the Court proceedings and the nature of the charges.  She was also able to give an account to her legal representatives.  Whilst the defendant may be distracted in a courtroom setting, the defendant had remained relatively focused and attentive during his two hour interview.  The defendant could be equally focused in a courtroom setting, provided there were special steps taken to ensure adequate and regular breaks and her counsel was regularly given timeto explain the evidence to her.  There would also be a need for questions to be phrased simply.  In Dr Beech’s opinion, if these modifications could be made, the defendant was fit for trial. 

18. In a supplementary report dated 21 May 2015, Professor Nurcombe considered Dr Beech’s report, and opined its contents gave him no reason to alter his earlier opinion.  In Professor Nurcombe’s opinion, the defendant is highly impulsive, has impaired concentration and lacks verbal fluency, all factors which would cast doubt on her confidence to testify or collaborate with her legal representative. 

    Evidence

19. Professor Nurcombe maintained his opinions in evidence.  He accepted special arrangements may ameliorate some of the defendant’s difficulties, but considered the defendant’s natural mental infirmity would mean she would become increasingly bored “to tears” through the Court process.  Professor Nurcombe accepted the defendant was able to give him an account of her involvement in the alleged offences in an interview that went for 90 minutes, but opined the defendant would not be able to maintain a sufficient level of concentration to be able to process the evidence in order to give effective instructions in the course of the trial.  The modifications suggested by Dr Beech, whilst providing some form of amelioration of the defendant’s difficulties, would not be sufficient to render the defendant fit for trial.

20. Dr Beech also maintained his opinions in evidence.  He noted Professor Nurcombe had used a different testing model, namely the juvenile aggregate confidence interview, based on model principles in the United States, in order to undertake his assessment of the defendant.  Whilst there were parallels to the Australian system, there were very significant differences in this testing model, which impact on the ultimate assessment of a defendant’s fitness for trial.  Dr Beech also noted the responses he had received from the defendant were more informative than the responses received by Professor Nurcombe.  Dr Beech did not consider the defendant’s tendency to drift off mentally was such that she would be unable to focus appropriately in the course of a trial, provided she was given frequent breaks throughout the trial process.

    Submissions

21. The defendant submits any assessment of the defendant’s fitness for trial must include reference to the length or likely length of the trial, and the nature of the alleged offences.  When regard is had to those factors, Professor Nurcombe’s opinion ought to be preferred as it gave appropriate recognition to the defendant’s tendency to become disengaged after a certain period of time, notwithstanding breaks in the proceeding.

22. The Director of Public Prosecutions submits the Court would accept and prefer Dr Beech’s opinion.  Dr Beech undertook the assessment in accordance with the appropriate test, rather than an American-based model.  That assessment concluded that with appropriate breaks, the defendant would be able to follow the proceedings, and meaningfully participate in those proceedings.

    Assisting psychiatrists

23. Dr Varghese advised the defendant’s case was complex.  The defendant had borderline intellectual functioning and some significant psychological problems.  However, she does not suffer from dementia, and was able to give an account to both Professor Nurcombe and Dr Beech, long after the event.  There is no reason why she would not be able to remember something earlier in the trial as against something later.  Accordingly, on balance, Dr Varghese advised the defendant was fit for trial.

24. Dr McVie agreed with Dr Varghese’s advice.  Dr McVie advised I ought to accept the opinion of Dr Beech.  Whilst the defendant has a borderline intellectual disability, and other symptoms subsequently developed as a consequence of her childhood experiences, the additional measures recommended by Dr Beech would ensure the defendant would be able to follow the course of proceedings, and meaningfully instruct her legal representatives during those proceedings.

    Discussion

25. There is no doubt the defendant suffers from a borderline intellectual disability.  That disability is complicated by psychological sequelae developed as a consequence of her childhood experiences.  The defendant appears to have developed a post-traumatic stress disorder and has an emerging personality disorder.

26. The deficits in the defendant’s intellectual capacities, as evidenced by neuropsychological testing in the past and more recently, indicate the defendant would, without modification of the normal court process, have difficulty in meaningfully participating in a lengthy court trial.  However, that testing does not support a conclusion the defendant does not have the ability to understand the nature of the charges, to plead to each charge, to exercise her right of challenge, to understand the nature of the proceedings, to follow the course of the proceedings, to understand the substantial effect of any evidence that may be given in support of the prosecution, and to make a defence or answer the charges.  There is also no evidence the defendant would not be able to endure a trial, if appropriate modifications were made to the trial process.

27. The defendant was able to participate in lengthy interviews with both Professor Nurcombe and Dr Beech.  During those interviews she remained focused and was able to give a detailed account of her actions in respect of the alleged offences.  Whilst a trial process is likely to be more stressful than a psychiatric assessment, and will require a greater degree of concentration, there is no reason why the defendant would not be able to maintain focus and concentration during the trial, provided regular and appropriate breaks occurred throughout that process.

28. Further, the defendant’s ability to give an account to both Professor Nurcombe and Dr Beech suggests the defendant would be able to provide instructions to counsel.  If the court process is modified to ensure that counsel had a regular opportunity to discuss the evidence with the defendant, there is no reason why the defendant would not be able to engage meaningfully in the trial process, including instructing counsel in respect of particular evidence.

29. Whilst Professor Nurcombe opined that the modifications suggested by Dr Beech would ameliorate, but not overcome, the difficulties faced by the defendant, this conclusion was based on an assessment using an American-based model which included questions not relevant to the Australian trial process.  It was also based on responses at interview which were significantly less detailed than those obtained by Dr Beech many months later.  These differences explain the differing conclusions reached by Professor Nurcombe and Dr Beech.

30. I found Dr Beech’s evidence highly persuasive.  Dr Beech gave careful consideration to the difficulties presented by the defendant’s intellectual disabilities and her psychological conditions.  The steps suggested by him to modify the court proceedings to accommodate these difficulties evidence a reasoned and thorough consideration of the relevant test in the context of the defendant’s particular circumstances, the nature of the charges and the likely duration of a trial.  I accept and prefer Dr Beech’s evidence.

31. This conclusion is consistent with the advice I have received from the assisting psychiatrists.  Both assisting psychiatrists advise I ought to accept Dr Beech’s opinion.

    Conclusion

32. Whilst the defendant suffers from significant intellectual disabilities, there is no evidence the defendant, as a consequence of a mental disease or natural mental infirmity, was deprived of any of the requisite capacities at the time of any of the alleged offences the subject of the reference.  I accept the defendant was not suffering from unsoundness of mind at the time of any of the alleged offences.

33. Subject to a court implementing the modifications referred to by Dr Beech, the defendant is fit for trial in respect of each of the alleged offences the subject of the reference.  Those offences ought to proceed according to law.

    Orders

    (1)At the time of each of the alleged offences the subject of the amended reference, the defendant was not suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act 2000 (Qld).

    (2)In respect of each of the alleged offences, the defendant is fit for trial.

    (3)Each of the alleged offences is to proceed according to law.

    (4)Copies of the reports and of the transcript of these proceedings are to be provided to the parties in the criminal proceeding.