Re JCW

[2005] QMHC 9

MENTAL HEALTH COURT

CITATION: 

Re JCW [2005] QMHC 009

PARTIES:

REFERENCE BY THE DEFENDANT'S LEGAL REPRESENTATIVE IN RESPECT OF JCW

PROCEEDING NO:

0132 of 2004

DELIVERED ON:

5 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

5 May 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr D A Grant

FINDINGS AND ORDER:

The defendant is permanently unfit for trial.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with unlawful and indecent dealing – where the latest events occurred over 31 years ago – where complaint made to police in 1989 - where medical evidence indicates the defendant suffers from memory deficiencies, hearing problems, signs of early dementia and poor vision – whether the defendant is fit for trial

Criminal Code (Qld), s 27

Mental Health Act 2000 (Qld), s 268, s 284, s 404, schedule 2

Kesavarajah v R (1994) 181 CLR 230

R v Presser [1958] VR 45

COUNSEL:

Mr M Johnson for the defendant
Mr J Tate for the Director of Mental Health

Mr R Martin for the Director of Public Prosecutions

SOLICITORS:

Lock Lim & Associates for the defendant
The Crown Solicitor for the Director of Mental Health
The Director of Public Prosecutions

1. JCW stands charged with six counts of unlawful and indecent dealing with a girl under 12 years between 1 January 1966 and 1 January 1967, a further six counts of the same offence between 1 January 1967 and 1 January 1969, a single count of that offence between 1 January 1969 and 1 January 1972, five further counts between 1 January 1969 and 1 January 1973, a further count between 1 January 1969 and 1 January 1974, and a further three counts of the offence between 1 January 1972 and 1 January 1974.

1. The issue on this reference is whether he is fit for trial.  That expression is defined in the schedule to the Mental Health Act 2000 as meaning “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”. Assistance has always been gained in the interpretation of that definition from the tests set out in R v Presser [1958] VR 45. As paraphrased in Kesavarajah v R (1994) 181 CLR 230 by the High Court at 245, those tests are that the person must have

"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. This case is dogged by an extraordinary and very unsatisfactory circumstance: that is, that a complaint was made in 1989 which appears not to have been followed through by the police officers to whom it was made.  That has produced a very unhappy outcome for all concerned.  JCW is now 93 years of age.  The two complainants are family connections; I will say no more than that. 

1. I have received by way of evidence three statements: one from each of the two complainants and a third from their father. I should say that those statements are not received pursuant to s 284 of the Mental Health Act 2000, because they are not in the requisite form, but this Court has a broad power under s 404 in relation to evidence. It is not bound by the rules of evidence. I propose to receive the statements in relation to what they say about the makers’ observations of JCW's condition. I should say that there is a good deal of other material in them which is not directly relevant to these proceedings. They express some understandable bitterness, apart from anything else, about the delay that has been occasioned, but those passages which I do admit are those which concern observations of JCW at more recent times; including, in the statement of the complainants' father, observations of him in December 2004.

1. However, those are the observations of lay people and they are not, I must say, prolonged or particularly intimate.  There are these reports before the Court: Dr Gahan, a general practitioner has given a report dated 17 October 2003.  He says in that report that JCW has memory deficiencies, hearing problems and signs of early dementia.  He has also poor vision and there are questions arising from those as to how he could effectively take part in a trial.  His view, as expressed in that report, is that JCW is not fit for trial. 

1. On the other hand, a Ms McDonald, a psychologist, gave a report of 19 November 2003 in which she administered the Beck Depression Inventory and found that JCW was mildly depressed, and the Wechler Adult Intelligence Scale, she found a full scale intelligence quotient which would indicate he was of low average intelligence.  She thought at that time that he was capable of giving appropriate instructions and noted no major deficits in his cognitive abilities or memory.

1. Since then, there has been another report from Dr Gahan raising the possibility of prostate cancer.  That report is dated 6 August 2004. 

1. Most importantly, however, there is a report from Professor Gerard Byrne who is a specialist in geriatric psychiatry.  I note what Dr Grant has had to say about his pre-eminence in that field.  Professor Byrne has found that JCW suffers from cognitive impairment.  His view is that he suffers from mild to moderate dementia and is unlikely to be able to properly instruct a solicitor or follow court proceedings or to understand evidence.

1. Now, Mr Martin for the Director of Public Prosecutions informed me from the bar table this morning without objection from any other party that he had forwarded the statements to which I have referred to Professor Byrne for his comments.  Professor Byrne's view is that although it is possible that a person such as JCW could be simulating loss of capacity, it is unlikely.  The pattern of cognitive impairment, he says, is not consistent with such simulation.  The sorts of things that JCW has been observed doing do not require much sophistication of thought, in effect.  They are not akin to the sorts of capacities required to withstand a criminal trial.

1. That evidence from Professor Byrne is recent, authoritative and unchallenged.  In my view, it must be accepted; and all the parties are in agreement that that is the case. 

1. I should say in any event that the offences are disputed so that s 268 of the Act applies, but so far as the question of fitness is concerned, I am satisfied on the expert evidence that JCW is unfit for trial and that unfitness is of a permanent nature. Dr Byrne has given consideration to the question of whether a forensic order or a non-contact order is required. In each case he answers that question in the negative. On that basis, therefore, I will not make any forensic order.

1. The orders are that JCW is unfit for trial and that unfitness is of a permanent nature.