Re JBH

[2012] QMHC 31

MENTAL HEALTH COURT

CITATION:	Re JBH  [2012] QMHC 31
PARTIES:	REFERENCE BY THE PATIENT’S LEGAL REPRESENTATIVES IN RESPECT OF JBH
PROCEEDING NO:	0228/10
DELIVERED ON:	Ex temp reasons given on 7 February 2012 Written reasons given on 23 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	30 January 2012 and 7 February 2012
JUDGE:	Ann Lyons J
ASSISTING PSYCHIATRISTS:	Dr J M Lawrence Dr E N McVie
FINDINGS AND ORDERS:	That at the time of the alleged offences the defendant was not of unsound mind as described in the Schedule to the Mental Health Act 2000 (Qld); The defendant is fit for trial; Proceedings against the defendant are to continue according to law.
COUNSEL:	J Briggs for the defendant J Tate for the Director of Mental Health A Lossberg for the Director of Public Prosecutions S Ryan for the Director of Forensic Disability
SOLICITORS:	Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health Director of Public Prosecutions (Qld) Director of Forensic Disability (Qld)

A LYONS J:

This reference

1. JBH is currently 17 years of age. He will turn 18 on 24 March 2012. He currently faces 18 offences which occurred between September 2009 and November 2010. Those counts include four counts of wilful damage; six counts of unauthorised dealing in shop goods; three counts of entering premises to commit and indictable offence; two counts of trespass; two counts of possession of drugs or utensils; and one count of obstructing police. This reference by JBH’s legal representatives in relation to his mental condition at the time of the commission of the alleged offences was filed on 18 January 2011.

1. On 30 January 2012 I gave brief ex tempore reasons and indicated that I would provide more extensive reasons at a later date, particularly in relation to the issues of fitness for trial and the arrangements that should be made to facilitate JBH’s participation and understanding of the trial process.  These are those reasons.

Background of the alleged offences

1. The brief background to the offending is that in September 2009 JBH was allegedly caught attempting to break into a swimming centre along with another juvenile. It is also alleged that on 30 November 2009, whilst in the company of three other youths, he broke into a bottle shop in Beenleigh using a shopping trolley to move bottles of alcohol. It is alleged that close circuit television shows him ramming the door with a trolley repeatedly and entering the shop.

1. The further allegations involve incidents between 28 and 31 December 2009 where he is implicated in a break-in at a public pool associated with the theft of food and soft drinks. On 2 February 2010 it is alleged he stole cans of soft drink from a store with another young man. On 25 February in the company of two other young boys he allegedly broke into a teachers’ lounge area of the Ipswich North State School which activated a security alarm. On 9 March 2010 it is alleged he stole a flat pack 24 cans of Jim Beam and cola from outside a bottle shop in Ipswich. On 10 March, in the company of two younger children, he stole a can of soft drink from a service station. He also caused damage to a light outside an RSL Club. On 17 March he was caught taking a bottle of soft drink from a local supermarket. On 21 March he was observed loitering in the shoe section of a Kmart store and when he was intercepted re-entering the store he admitted to stealing a pair of shoes.

1. On 25 April 2010 he, along with two others, smashed items inside a vacant house. On 16 May 2010 he was observed to be throwing rocks at a building and smashing a window. On 21 May he was associated with a possible break and enter of an unoccupied house in Ipswich.

1. He also faces charges of possession of dangerous drugs on 4 November 2010, possession of utensils or pipes on 4 November and a further count of unauthorised dealing with shop goods on 30 November 2010.

The assessments

1. JBH has been assessed by psychologist Mr Luke Hatzipetrou and psychiatrists Dr Ken Arthur and Dr Beech.

1. Dr Beech’s report of 19 March 2011 provides a convenient summary of all of those assessments. Dr Beech notes that formal assessment places his full scale IQ in the range of mild mental retardation. He considers, however, there is a significant difference between his verbal and performance scales. He considers that JBH is a particularly truculent and inarticulate young man. He considers that overall his intelligence is most likely in the range of borderline intellectual functioning, that is, the range below low average intelligence and mild mental retardation.

1. Dr Beech stated that he believes that his assessments and his presentation at interview indicate that it is likely that he has a co-morbid language disorder. He notes that JBH has displayed a significant pattern of disruptive behaviour at home and at school which has progressed to antisocial behaviour and association with delinquent youths. He believes JBH has developed a conduct disorder which could be seen as the result of his learning difficulties and frustration at school, alienation from mainstream school, association with delinquents and the limited capacity of his parents to supervise and manage him. Dr Beech stated that he could not detect any signs or symptoms to indicate the presence of a mental illness. Dr Arthur and Mr Hatzipetrou reached similar conclusions.

1. Dr Beech stated that he agreed with Mr Hatzipetrou that it is likely that JBH has a limited capacity to reflect on his behaviours and the consequences. He has a limited capacity for social judgment and he is likely to find support through his association in a delinquent gang. Dr Beech’s conclusion, which is also supported by Mr Hatzipetrou and Dr Arthur, is that he is not of the opinion that JBH’s intellect is so limited as to deprive him of the capacity to understand the nature of his actions, nor their wrongfulness. He considered that JBH has a disregard for the consequences of his behaviour which seemed to reflect more his antisocial personality and influence of peers.

1. I am not satisfied therefore that JBH was deprived of any of the relevant capacities due to his natural mental infirmity. I am satisfied, therefore, that he was not of unsound mind at the time of the alleged commission of the offences. The charges should all continue according to law.

1. The next issue is whether JBH is fit for trial. This expression is defined in the Schedule of the Mental Health Act 2000 (Qld) as follows;

“fit for trial, for a person, means 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 criteria in this regard are well known and were considered by the Court of Appeal in R v M[1]. The Chief Justice held:

   [1] [2002] QCA 464

“[13] 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.

[14] Questions of unsoundness of mind aside, the public interest warrants the trial of persons accused of criminal offences whether their level of intellectual capacity be normal or otherwise. In this case, the appellant’s intellectual capacity means that the process of trial will probably be longer and somewhat disjointed. But obviously that feature should not warrant disbanding the proceeding. This appellant has the basic relevant understanding. The court will bear with him to ensure his trial is fair.

[15] To deny a person like this appellant a trial would, having regard to both his interest in responding to the charge and possibly having his name cleared (while acknowledging of course that he bears no onus), and the interest of the community in ensuring that criminal charges are properly pursued, be frankly inconsistent with the rule of law, essentially because it would be discriminatory. Contemporary courts are sensitive to the varying needs of those who come before them.

[16] This appellant enjoys limited intellectual capacity. Acceptable evidence before Her Honour supported the view that, nevertheless, with sufficient accommodation from the court, the accused should be able adequately to instruct his counsel.”

1. There is no evidence that JBH would not be able to endure a trial without serious adverse consequences to his mental condition. The real issue is whether JBH is fit to instruct his counsel and understand the nature of the charges.  In my view the evidence establishes that he understands the charges.  Dr Beech’s report clearly outlines the process he undertook with JBH where he specifically took him through a number of the offences which he is charged with. In Dr Beech’s view JBH was able to indicate that he understood the nature of the charges. He was also able to indicate the nature of a guilty and not guilty plea and was able to give an admittedly limited account.

1. In my view, the real issue is whether he can instruct his counsel. In this regard Dr Beech’s report is once again of considerable assistance. Significantly, JBH was able to dispute deliberately inaccurate factual suggestions that were made to him by Dr Beech. Dr Beech also stated that JBH has some understanding of the evidence which could be used against him.

1. Dr Beech indicated that he suspects that JBH has a speech and language disorder which would make it difficult for him to articulate an account of the offences and he might find some questions difficult to follow. He could also be confused by complex leading questions. However Dr Beech considered that JBH should be afforded the status of a special witness, with a requirement that questions put to him are simple, direct and in active voice.

1. A speech and language assessment was carried out by speech pathologist Sharon Powell and, in a report dated 29 September 2011, she indicated that JBH has language difficulties which would have an impact on his ability to remember verbal information presented in large chunks. Ms Powell also indicated that he has difficulty recalling the specific details of what he hears as well as understanding complex language. He also has problems in following the ‘to and fro’ of a conversation and in answering questions with sufficient information. Neither can he formulate sentences to be able to fully express his ideas and use the right words to give precise information.

1. I note that Dr Arthur and Mr Hatzipetrou had some concerns about JBH’s fitness for trial whereas overall Dr Beech’s conclusion was that he is fit for trial.

1. In my view, whilst Dr Arthur was concerned about whether JBH was fit for trial, it is clear that this concern related to the fact that JBH’s likely approach to the court would be one of nonchalance and by also being unable or unwilling to engage in the process in a meaningful way. He also was concerned that his interaction style would not benefit him within the court and that he may respond to questions in an impulsive and poorly thought out manner. He concluded that it is probable JBH is not fit for trial or to plead due to a combination of his maladaptive coping strategies and intellectual impairment. He concluded however that his fitness could be improved with suitable education regarding court processes.

1. I consider however that, in his interview with Dr Beech, JBH indicated he does have a significant understanding of the processes and, with careful questioning and with time being given to allow him to respond, JBH is able to follow questions and is able to understand the nature of the charges and formulate a defence.

1. The advice of the assisting psychiatrists is that they consider JBH is fit for trial and that special arrangements should be put in place to facilitate his ability to instruct his counsel and to plead. I also note their advice about the importance of speech therapy to facilitate this understanding.  In particular Dr McVie advised:

“In relation to fitness for trial, it's clear that JBH does have a significant intellectual impairment which probably fits in the borderline range of intellectual disability, but it seems to be on the cusp of mild mental retardation.  It is also clear that he would benefit from specific therapy for his language disability and he may also benefit from supportive counselling, in particular drug and alcohol counselling. I note that all the examiners had some difficulty engaging him in the assessment, although Dr Beech with his background in child and adolescent clearly was able to eventually get JBH to engage in some discussion in relation to his
offences.

I would advise your Honour to accept Dr Beech's very clear opinion that JBH would be fit for trial, but this should be as a special - with special witness status and I would support Mr Briggs' opinion that the transcript of his evidence should be provided to the Magistrates Court along with the reports.”

1. Dr Lawrence gave the following advice:

“I think the evidence is that this young man suffers from a degree of intellectual difficulty which – the evidence is that there is a very significant difference between his verbal ability and his performance abilities and capacities.  This, I think, is of considerable significance in all of these things.

The evidence suggests from Dr Beech and Dr Arthur that because of his intellectual difficulties with regards to the commission of the offences he was not deprived of the capacities to understand, know or control his behaviour. Therefore, he is not unsound.

There is this difference of opinion as to the issue of fitness for trial, but I think the difference is marginal.  Dr Beech believes that he is fit for trial with special witness status and Dr Arthur, I believe, in his, if you like, emphasis on motivational factors which led to some difficulty in his assessment in that regard, but I think was believing that it was certainly likely that he could be fit for trial with a special witness statement and - status, rather, and perhaps with some extra assistance along the way.

The point that I would like to emphasise in this case of JBH is that he is still a young person who has difficulties and in the overall context of his social situation he appears to have been handicapped by a number of factors – including geographical ones, perhaps - in getting the assistance or maximum assistance that he could have got through his life.

I think, as Dr Arthur has pointed out, he has elements of significant antisocial personality potential ahead of him, but I believe that the reports of the speech pathologist and the emphasis on the difficulties that this man primarily has in his verbal capacities both for understanding and being able to express himself in language is a very significant factor in his difficulties.

I believe that it's important that he should - that every effort should be made to assist him in this regard and that if that assistance to improve his language abilities, his capacity to not only understand what is said to him but also to express himself more adequately, may make a significant difference to his long-term future life.  Improvements in those capacities, too, would help him in his ambitions and his probable ability to achieve a driver's licence and employment in some sort of procedural manner.

I have emphasised this because I think it is something that now that it's been highlighted should not be allowed to drift away unattended.  I believe that the DCCS report that's been commissioned or that services involved, perhaps they could be the people who could perhaps in assisting him provide assistance through speech pathology to help with his language, if possible.

Certainly I think that fit for trial, referred to Court – the transcripts of these proceedings which highlight his particular difficulties should be provided to the Court and all the authorities available to assist them in their determinations of his future welfare and that of society in general.”

1. It is important, therefore, that all possible steps are taken to ensure that JBH receives some therapy for his language disability. I also note that the report from the Department of Communities has indicated that it will provide funding for up to 16 hours per week on an ongoing basis and that the advice of the assisting psychiatrists is that the most benefit JBH could receive would be from speech therapy targeted at his language difficulties. 

1. I note in particular that as his language difficulties affect his ability to remember verbal information presented in large sections questions put to him should be kept brief. As he has difficulty recalling the specific details of what he hears, the questions should be put simply and in direct voice. He should also be given time to answer questions as he has difficulty in finding the right words to convey the answers he wants to give. He should be accompanied by an adult support person. It would also be helpful if JBH was given some education regarding court processes beforehand if that is possible.  

1. Given JBH will appear in the Children’s Court I am confident that the specialist judges in that jurisdiction will be well aware of the issues that JBH faces and are well used to providing the necessary and appropriate arrangements to accommodate his needs.

1. I therefore find that JBH is fit for trial. The proceedings should therefore continue according to law.

1. I will also order that all the Reports prepared in relation to this reference as well as the transcript of Dr Beech’s evidence, given on 30 January 2012, should be made available to the Legal representatives and the Children’s Court or such other Court that requires it.