Re K
[2009] QMHC 4
•31 July 2009
MENTAL HEALTH COURT
CITATION:
Re K [2009] QMHC 4
PARTIES:
REFERENCE BY THE DIRECTOR OF MENTAL HEALTH AND BY THE PATIENT'S LEGAL REPRESENTATIVE IN RESPECT OF K
PROCEEDING NO:
No 0164/2008
DELIVERED ON:
31 July 2009
DELIVERED AT:
Brisbane
HEARING DATES:
11 February 2009, 22 July 2009
JUDGE:
Philippides J
ASSISTING PSYCHIATRISTS:
Dr J M Lawrence
Dr E N McVieFINDINGS AND ORDER:
1. There is a reasonable doubt the defendant committed the offences the subject of charges 3,9,10,11,12,13 and 14.
2. The defendant was not of unsound mind in relation to the balance of the charges.
3. The defendant is unfit for trial and that unfitness is of a permanent nature.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant not of unsound mind – whether defendant fit for trial –where defendant suffered from an acquired brain injury with significant memory deficits
Mental Health Act 2000 (Qld), Schedule 2
Kesavarajah v R (1994) 181 CLR 230
Ngatayi v R (1980) 147 CLR 1
R v M [2002] QCA 464R v Presser [1958] VR 45
COUNSEL:
Mr B Deveraux SC on 11 February 2009; and Mr S Hamlyn-Harris on 22 July 2009 for the Defendant
Mr J Tate on 11 February 2009; and Mr D Lang on 22 July 2009 for the Director of Mental Health
Mr D Finch on 11 February 2009; and Ms C Kelly on 22 July 2009 for the Director of Public Prosecutions
SOLICITORS:
Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental HealthThe Director of Public Prosecutions (Qld)
PHILIPPIDES J:
Background
The defendant, who is now aged 25, is charged with 14 sexual offences against a minor, including indecent dealing, rape, and maintaining an unlawful relationship with a person under 16, over a period of almost six years between March 1999 and December 2005. The charges relate to conduct over a period when the defendant was aged between 14 and 19 years, and concern his half sister, who was then aged between five and 10.
The defendant suffered a traumatic brain injury resulting from a car accident when he was aged 10. As a result, he suffers from cognitive impairments impacting on memory. He also has a borderline intellectual disability.
The defendant disputes the facts concerning counts 3,9,10,11,12,13 and 14. The expert evidence indicates that that dispute does not arise as a result of the defendant’s mental condition. In respect of those charges, I am satisfied that there is a reasonable doubt as to the commission of the alleged offences. Accordingly, no finding as to the defendant’s state of mind at the relevant times is made.
As to the balance of the charges, the material clearly indicates that the defendant did not suffer deprivation of any of the relevant capacities as a result of his acquired brain injury. In respect of those charges, I find that the defendant was not of unsound mind.
Fitness for Trial – Principles
The question of fitness for trial then arises for consideration. Schedule 2 of the Mental Health Act 2000 (Qld) (“the Act”) defines the expression “fit for trial” 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.”
In Kesavarajah v R (1994) 181 CLR 230 at 245 Mason CJ, Toohey and Gaudron JJ approved the test for determining fitness for trial set out in R v Presser [1958] VR 45, stating:
“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.”
A reasonable and commonsense approach is to be 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’.”
In R v M [2002] QCA 464, the Court of Appeal applied the Presser test in relation to the statutory definition in the Mental Health Act. The Court held that in approaching the issue of fitness for trial, regard is also had to the fact 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 noted:
“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.”
Evidence
Until the motor vehicle accident which resulted in him sustaining serious brain injury, the defendant had had an unremarkable childhood development. As mentioned as a result of the accident, the defendant suffered serious memory impairment which affected his ability to recall and process information. The documented evidence of scans taken at that time of the accident revealed two frontal lobe haemorrhages.
The defendant completed year 10 and thereafter has had various jobs, most recently as a security officer. While it appears to be a job to which his large physique made him suited, it also appears that he coped with that job only with a lot of help and memory prompting from others. He also required assistance from his girlfriend in everyday matters.
Dr Keane
A detailed psychological assessment was made by Dr Keane, who assessed the defendant’s full scale IQ at 83, which is in the low-average range. He showed a particular deficiency in verbal IQ, with a verbal IQ score of 75 – considered to be in the borderline range. Dr Keane observed that the defendant demonstrated a “significant and unusual difference between his verbal and performance IQ”, seen in only five per cent of the general population, indicating that his full scale IQ is not an accurate reflection of his verbal functioning. She noted that delayed recall ability fell in the extremely low range and that recall included “intrusions”.
Dr Keane framed the issue of fitness for trial primarily in terms of the defendant’s ability to retain and process memories in the present. She was of the firm view that the defendant was permanently unfit for trial. She considered he would struggle to encode and retain information at a level which would render him a useful participant in the trial process. In her report to the Court, she stated:
“Within the quiet environment of the assessment room, [the defendant’s] memory is well below average. However, he is able to encode and retain some structured information. Under the right condition, that is, a quiet room and with little stress and multiple rest breaks, if [the defendant] was taken through the evidence slowly, piece by piece, with some repetition with simple written as well as verbal explanations of how the information pertained to him, then he would be able to retain and process some information into memory. It is unlikely that he would be able to retain specific details, and the amount of detailed information that he could retain would be well below average, however, I would suggest that he could retain the gist of the information.
Under any other conditions, such as within a normal court room situation, and if [the defendant] was stressed, people spoke at normal rate and information was presented in large chunks, then [the defendant] would have great difficulty retaining any information longer than a couple of minutes. Indeed, he would have trouble encoding information for memory under these circumstances. That is, his functioning is such that he would not be able to encode and retain information in such a situation and [he would] be unfit for trial.
Furthermore, [the defendant] wouldn’t be able to remember the detail of each offence he has been charged with. That is, because of the deficits arising from his acquired brain injury, [the defendant] will have only a piecemeal recollection of the past events that comprise the charges.”
In expanding on her report in oral evidence, Dr Keane stated:
“What we can say … on objective measures of assessment he has significantly poor immediate learning, and immediate recall, and over a 20 minute delay, significant impairment in his memory which would lead us to conclude that naturally his memory of the events is going to be poor and naturally he will not be able to answer questions reliably because his memory of the event - he has very poor memory of the event. That doesn’t mean he has no memory of the event. It means that what he remembers, the details that he remembers, the amount that he remembers, is extremely impaired.”
Dr Keane also gave evidence that the defendant:
“… had difficulty expressing himself … and understanding words, understanding the meaning of words, which would impact on his ability to understand what you’re saying, in terms of static-dynamic concepts or the complicated concepts that are involved in court proceedings … [the defendant], what he might remember right here and now, he wouldn’t remember … in ten minutes, particularly if you’d been talking to him about other things. His memory of what had gone on previously would be patchy.”
Dr Keane further observed that in addition to substantial impairment on a memory list task (within the first percentile), the defendant’s performance was characterised by “memory intrusions”, in that he recalled words that were not in fact present. In evidence, Dr Keane stated:
“The other thing about [the defendant’s] memory is that he also has, what we call, intrusions, so his memories aren’t reliable; things that didn’t happen will also get included in it [his memory] and it’s because of the particular type of head injury he had which involved the frontal lobes. So for [the defendant] to be able to follow the Court proceedings as they would be just in a normal Court like today, he would - it would be impossible.”
Dr Keane did not consider that the defendant’s memory difficulties could be accommodated by any adjustment in court proceedings. She indicated that even with frequent breaks for him to speak to his solicitor there would be significant concerns about his ability to advise his representatives, observing:
“If things could be slowed down, he could answer each particular point as it came up. The problem is if he had to respond to a point that came up 10, 15, 20 minutes ago, then you would have to go back there and re-explain the point and, by the time you’ve done that, he may have lost what the first question was about. So the idea is his ability to remember in totality the, you know, as a whole the proceedings is going to be very difficult for him. So when you talk about slowing it down and taking it point-by-point-by-point, yes. But that would seem to be a way that [the defendant] could do it. [But] that would require things to progress forward there’d be no return to something back at the beginning.”
Thus, while Dr Keane accepted that if the defendant was taken through the evidence slowly, piece by piece, he could retain and process some information, she pointed out that he would have only a piecemeal recollection of past events. She therefore considered that such an approach would only have limited usefulness in overcoming the defendant’s memory deficits.
Mr Parker
Mr Parker, a psychologist, conducted a brief assessment of intellectual functioning as measured by Beta III. This resulted in a Beta score of 87, indicating the defendant is of low-average intelligence. His assessment of the defendant’s memory also revealed an overall memory functioning in the borderline range and at the lowest one per cent of the population. The defendant’s worst performance was in tasks requiring immediate recall of information. Mr Parker considered that it was unlikely that any treatment would be successful in improving his memory abilities.
Mr Parker stated that the defendant’s “overall cognitive capacity is lower than his aged peers but not to an extent that would limit his ability in understanding what was happening or being able to participate in making a defence and instructing solicitors”. He identified the defendant as having a significant memory impairment, but opined that, while he would be unable to recall events in detail and would not be able to accurately repeat information given to him, he could recognise whether he had seen or heard a piece of information before.
Mr Parker stated that the defendant was unsure about what roles a solicitor, judge or jury play in a courtroom, but considered that the defendant’s cognitive capacity was such that he was capable of understanding what happens during a trial and that he could participate in his defence and instruct counsel. Despite the impairments identified, Mr Parker opined that the defendant was fit to stand trial. The concerns that Dr Keane voiced in respect of the defendant’s memory deficit impacting on his ability to recall evidence, instruct counsel and follow the evidence were raised with Mr Parker in his oral evidence. I note that he largely agreed with the concerns raised by Dr Keane and conceded that “drip-feeding” the evidence would be required to meet the defendant’s memory deficit.
Dr Schramm
The defendant was examined by Dr Schramm on 14 April 2008. In dealing with the Presser criteria in his report, he noted:
“Where there may be some concern regarding his fitness is the fact that he cannot be expected to reliably retain in his memory any detail of what he has been told beyond a couple of minutes. My opinion (and you may also want to test this or gain further advice), is that he could be considered able to participate in his Court processes so long as certain caveats and allowances were made. That is, he could follow and comment on evidence only if each point was given in piecemeal fashion for no period lasting longer than a few minutes.”
However, Dr Schramm did not reach a concluded opinion in his report. On the one hand he observed, “While the defendant’s intellectual and memory deficits mean that significant allowances and caveats with regards his ability to provide evidence are needed, he could be considered fit for trial.” Yet, he also commented, “However, I would suggest that an argument could be made that his inability to give accurate account for each individual offence may mean that he be considered unfit for trial and therefore suggest that you may wish to seek either further legal advice on this point or to even test the matter in the Mental Health Court.”
In oral evidence Dr Schramm remained quite equivocal. He thought that the matter was a borderline one and that significant allowances would need to be made for the defendant’s cognitive and memory deficits. Dr Schramm also opined that there was a risk that the defendant would confabulate:
“… I think in general there would be a risk of him not being able to provide reliable evidence. … he should not be seen as a reliable witness because his memory for those events is so very poor and he would be at risk of having something suggested to him and … agreeing to certain things which may not have occurred.”
Because the defendant could not be expected to reliably retain in his memory any detailed information for longer than a few minutes, Dr Schramm opined that information would need to be presented in a piecemeal fashion, in discrete points, and for no more than a few minutes at a time. When asked what would be required to ensure the defendant received a fair trial, Dr Schramm responded:
“… the Judge would have to control any evidence that is given so that it is being, I suppose, drip-fed point by point and then immediately he is given the opportunity to consult with counsel and make comment upon that.”
Dr Fama
Dr Fama saw the defendant on 4 April 2009. Dr Fama identified that the problem in respect of fitness for trial arose from the defendant’s defective memory. He observed that:
“Even after a committal, a Mental Health Court hearing, examination by two psychologists, and no doubt some explanation by an officer at Legal Aid Queensland, [the defendant] still has only an incomplete grasp of the charges against him. His description of these charges to me has been inadequate and in fact misleading … ”
Dr Fama concluded:
“My own view is that [the defendant] is unfit for trial by reason of an inability consistently to recall material presented to him, to such a degree that he could not reasonably be expected to remember sufficient of the court proceedings to make valid comments and decisions as a defendant… That will not change, and his unfitness for trial is I believe permanent.”
Dr Fama spoke to the defendant during the adjournment in the Mental Health Court proceedings on 22 July 2009 and was able to give examples to illustrate his view that the defendant is permanently unfit for trial. As Dr Fama explained:
“It boils down to this. Does he know what on earth is going on around him, can he remember what’s happened in the last half hour or quarter hour and I believe not. I spoke to [the defendant] this morning during the adjournment at 10.55 a.m. He remembered my face. He could not identify who I was, where I had seen him, what it was all about. That’s two months later. Worse than that, however, I asked him what he was doing in this Court today and he said, ‘Oh, it’s about my memory’ but more than that he could not explain. I said, ‘Why is the Court concerned with your memory?’ He could really give me no account of what was going on. He could not remember the name of the person who’d been giving evidence by telephone, Mr Parker. He had no idea what Mr Parker had said or what it was about. So I don’t see this man as being fit to undergo trial. He would not really remember evidence shortly after it had been given, so how could he comment on it, how could he take a meaningful part in his own trial? I don’t believe he could.”
Conclusion
Having considered the totality of the evidence, I prefer the evidence of Dr Keane and Dr Fama. I note that Dr Schramm was initially very ambivalent about the defendant’s fitness for trial. He did not clearly advocate a view that the defendant was fit for trial, considering the matter to be borderline. In his oral evidence, he significantly qualified any position that the defendant was fit for trial. He also shared Dr Keane’s view as to the defendant’s unreliability as a witness because of his memory deficits. Indeed, in his oral evidence he appeared to provide a view that moved towards that of Dr Keane, that the defendant was permanently unfit for trial.
As for Mr Parker, ultimately he also largely agreed with the evidence of Dr Keane concerning her findings as to the defendant’s memory difficulties, and while he was inclined to the view that they might be able to be overcome by adjustments in the trial process, he accepted that the outcome in such a case would be a “an extraordinary trial process”. Mr Parker also seemed to resile from advancing a strong position that the defendant was fit for trial.
Dr Fama and Dr Keane, on the other hand, provided detailed and firm evidence in support of their views that the defendant was not fit for trial. Dr Keane, in particular, gave detailed evidence both in her report and orally as to the considerable memory deficits the defendant suffered from, which precluded him from retaining information for more than a few minutes.
On the basis of the evidence before the Court, I consider that the defendant’s memory impairment is such that he would be unable sufficiently to follow proceedings, to understand the substantial effect of evidence, to recall the evidence that was given and to instruct counsel accordingly. In the circumstances, I am satisfied that the defendant is unfit for trial. That unfitness is of a permanent nature.
Forensic order
There is no clinical evidence to indicate that the defendant suffers from a mental illness and the recommendations of all of the reporting and assisting psychiatrists was that a forensic order is not required in this case. In the circumstances, no forensic order is made.
Orders
I order that:
1. There is a reasonable doubt the defendant committed the offences the subject of charges 3,9,10,11,12,13 and 14. Those being, six counts of rape and one count of maintaining an unlawful sexual relationship with a person under 16.
2. The defendant was not of unsound mind in relation to the balance of the charges. Those being, four counts of permitting himself to be indecently dealt with by a person under 12, and three counts of indecent dealing with a person under 12.
3. The defendant is unfit for trial and that unfitness is of a permanent nature.
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