Re Koehler

[2012] QMHC 4

MENTAL HEALTH COURT

CITATION:

Re Koehler [2012] QMHC 4

PARTIES:

REFERENCE BY THE DIRECTOR OF PUBLIC PROSECUTIONS IN RESPECT OF JOHN WAYNE KOEHLER

PROCEEDING:

No 0189 of 2011

DELIVERED ON:

March 21, 2012

DELIVERED AT:

Brisbane

HEARING DATE:

March 13, 2012

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr F T Varghese
Dr E N McVie

FINDINGS AND ORDER:

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

The defendant is fit for trial.2.          

The proceedings for the alleged offence are to be continued according to law.3.          

The reports in the proceedings, and the transcript of the proceedings, are to be released to the parties in the criminal proceedings.4.          

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – fitness for trial – where the defendant is charged with an offence of assault occasioning bodily harm – where it is accepted the defendant was not of unsound mind at the time of the alleged offence – where the defendant suffers mild mental retardation – where the defendant’s IQ is 55 – where the issue for determination is whether the defendant is fit for trial – where there is conflicting expert psychiatric opinion – whether the defendant is fit for trial

Ngatayi v R (1980) 147 CLR 1
R v M [2002] QCA 464
Kesavarajah v R (1994) 181 CLR 230
R v Presser [1958] VR 45

COUNSEL:

K Williams for the defendant
J Tate for the Director of Mental Health

D Kovac for the Director of Public Prosecutions (Qld)

S Burgess for the Director of Forensic Disability

SOLICITORS:

TASC for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Qld)
Director of Forensic Disability

BODDICE J:

1. John Wayne Koehler (“the defendant”) is charged with an offence of assault occasioning bodily harm, alleged to have been committed on 26 October 2010.  His legal representative referred his mental condition at the time of the alleged offence to this Court by reference filed 8 July 2011. 

1. It is accepted the defendant was not of unsound mind at the time of the alleged offence.  The issue for determination is whether the defendant is fit for trial.

Defendant’s background

1. The defendant was born in Yeppoon on 16 November 1965.  He has an intellectual disability.  The defendant and his sister were removed from their parents at an early age after suspected abuse by their father.  They grew up with foster parents.  The defendant attended a special school to age 18.  Thereafter, he attended a workshop run by Endeavour Kippa-Ring.  He subsequently moved to Toowoomba where he lived in a boarding house and attended the local Endeavour workshop. 

1. A guardianship order was made in relation to the defendant by the Queensland Civil and Administrative Tribunal on 22 May 2008.  That order was amended on 20 April 2010 by appointing the Adult Guardian as the defendant’s guardian for specified personal matters, including legal matters not related to his financial or property matters.

Alleged offences

1. The charge of assault occasioning bodily harm arises out of an incident alleged to have occurred on a street in Toowoomba.  The complainant had previously been in a relationship with the defendant.  It is alleged that on 26 October 2010 the defendant drove past the complainant while she was waiting to pick up her children from their school.  He yelled abuse and then alighted from a vehicle and walked towards the complainant.  As the defendant stood in close proximity to the complainant, he used a closed right fist to punch her on the left side of her face.  He then pulled her hair and kicked her, whilst verbally abusing her.

Medical reports

1. A psychological assessment was undertaken by Gavin Beccaria on 28 June 2011.  It revealed the defendant’s intellectual functioning was in the impaired range, well below his age related peers.  The defendant demonstrated difficulty with some abstract instructions.  The defendant also demonstrated significant weaknesses in verbal abilities, and a severe impairment in social comprehension and reasoning.  He demonstrated strengths in perceptual reasoning.  His IQ was 55.

1. Dr Venugopalan examined the defendant on 3 October 2011.  Dr Venugopalan assessed the defendant as suffering mild mental retardation.  He noted he was capable of living by himself and managing his day to day personal and financial affairs.  He was also able to supplement his income by regular odd jobs. 

1. On examination, the defendant presented with limited verbal skills, although he was able to give an outline of his personal history with approximate dates and periods.  He was also able to state his version of events, albeit with difficulty because of his limited vocabulary.  The defendant was orientated in time, place and persons.  He could recognise several simple words but could not read a whole sentence.  There was no evidence of excessive anxiety, mood disturbance or a thought disorder. 

1. Dr Venugopalan opined that the defendant was not deprived of the capacity to understand what he was doing, or the capacity to control his actions, or of the capacity to know that he ought not to do the act.  However, the defendant’s capacity for knowing right from wrong was limited and his intellectual disability was a significant factor contributing to the offence.

1. In respect of fitness for trial, Dr Venugopalan concluded:

“Mr Koehler was able to give his version of events that led to the charge.  He had some difficulty in explaining because of his limited verbal ability.  However he said that he was angry at that time and his friend ‘Nifty’ encouraged him to do what he did.  Mr Koehler was able to express his remorse.

Mr Koehler was able to explain what he understood by terms guilty and not guilty.  He appeared to have a basic understanding of how a court functioned and how he could be represented.  Mr Koehler’s limited ability to express verbally appeared more relevant than his understanding.

In my opinion Mr Koehler is fit for trial.”

1. Dr Phillipson examined the defendant on 17 October 2011.  At that time there was no evidence of movement disorder or of disturbance of possession of thought.  However, the defendant had a circumstantial and somewhat tangential stream of thought.  Clinically, there was evidence to suggest intellectual impairment with very little insight into the situation and demonstrated poor judgment.  The defendant was not psychotic.

1. Dr Phillipson opined that the defendant was not deprived of any of the requisite capacities at the time of the alleged offence, although his intellectual impairment impaired his judgment and ability to control his actions.

1. In respect of fitness for trial, Dr Phillipson opined the defendant had limited understanding of the nature of the charges and of the difference between guilty and not guilty, but very little understanding of who would be present in the courtroom, and of the seriousness of the charge.  Dr Phillipson concluded:

“2.5In terms of Court proceedings, I note in R v Griffiths, Justice Kelly’s comment ‘I do not mean that he must understand the procedure and the argument – but follow what is happening as well as any layman might be expected to understand and follow it’.  Applying this requirement, I am of the opinion that Mr Koehler, as a result of his intellectual impairment, would not be able to ‘follow what is happening as well as any laymen’.

2.6Taking into account the material available, the psychology testing and my assessment, I am of the view on balance that John Koehler is unfit for trial and this unfitness is permanent, as a result of his intellectual impairment.”

1. Dr Venugopalan and Dr Phillipson gave evidence at the hearing.  Both maintained their respective opinions in respect of the defendant’s fitness for trial.  However, Dr Phillipson conceded the defendant functioned at a level above his assessed IQ.  He also conceded the defendant could follow and understand evidence in court, although he would need frequent adjournments to allow further explanation and clarification.  Dr Phillipson’s main concern was the defendant’s extremely limited verbal ability.  This impacted on his ability to instruct counsel. 

Assisting psychiatrists

1. Dr McVie advised that whether the defendant was fit for trial was marginal.  Whilst the defendant had mild mental retardation, his functional ability suggested he functioned satisfactorily within the community.  Dr McVie noted Dr Phillipson’s evidence was more consistent with the defendant being fit for trial, provided there could be adequate amendments to the trial procedure.  Ultimately, Dr McVie advised the Court should accept and prefer Dr Venugopalan’s opinion.

1. Dr Varghese advised that although the defendant suffered mental retardation, he was able to function with minimal assistance.  He also advised that Dr Venugopalan’s opinion should be accepted and preferred to that of Dr Phillipson.  Whilst a trial would present difficulties, education on the processes and appropriate modifications to the trial procedure would ensure the defendant could have a fair trial.

Submissions

1. The defendant submits Dr Phillipson’s opinion as to fitness for trial ought to be preferred over that of Dr Venugopalan.  The defendant’s low IQ, together with his extremely low level of verbal functioning, render him incapable of understanding the court processes sufficiently so as to enable him to follow the evidence, assess that evidence and give proper instructions to counsel.

1. The Crown submits Dr Venugopalan’s opinion ought to be preferred over that of Dr Phillipson.  The Crown notes the trial will not be complex, and the objective evidence establishes that, notwithstanding the defendant’s assessed low IQ, he functions satisfactorily within the community, living independently.

The law

1. The Schedule of the Mental Health Act 2000 (Qld) defines fit for trial 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. Whether a person is fit for trial is to be assessed in a reasonable and commonsense fashion, with due recognition that the person will be represented by counsel, and that Court proceedings may be structured to accommodate the person’s disability.[1]  In this respect, it is relevant to consider the nature of the proceedings.[2] 

   [1]Ngatayi v R (1980) 147 CLR 1 at 8.

   [2]Ngatayi v R at 8–9.

1. It is not necessary for the person, in order to be tried fairly, to appreciate the nuances of court procedure or the intricacies of the substantive law,[3] or to have an ability to have a close comprehension of the forensic dynamics of the courtroom, whether as to the factual or legal contest.[4]  In Ngatayi v R, Gibbs, Mason and Wilson JJ said:

“… in deciding whether an accused is capable of understanding the proceedings so as to be able to make a proper defence it is relevant that he is defended by counsel.  If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand, the law.  With the assistance of counsel he will usually be able to make a proper defence.”[5]

[3]R v M [2002] QCA 464 at [5].

[4]R v M at [13].

[5]Ngatayi v R at 9.

1. In Kesavarajah v R,[6] Mason CJ, Toohey and Gaudron JJ said:

“In Reg 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 at 304; [173 ER 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.”[7]

[6](1994) 181 CLR 230

[7]See R v Presser [1958] VR 45 at 48; approved in Kesavarajah v R (1994) 181 CLR 230 at 243 – 245.

1. A person cannot be permitted to escape trial “simply by showing that he is of low intellect”.[8]  The test for a fair trial:

“… 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 Reg v Presser (1958) VR 45, at p 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’.”[9]

[8]Ngatayi v R at 8.

[9]Ngatayi v R at 8.

1. As to the capacity to instruct counsel, fitness for trial:

“… 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.”[10]

[10]R v M at [13].

Findings

1. Whether the defendant is fit for trial requires an assessment of the conflicting opinions of Dr Phillipson and Dr Venugopalan.  Resolution of the issue is finely balanced, as both doctors presented detailed reasons for their respective opinions. 

1. I accept the defendant has a very low IQ, and limited verbal skills.  Mr Beccaria’s psychometric testing supports such a conclusion.  However, the objective evidence as to the defendant’s functional ability within the community indicates a level of functioning above his assessed IQ, with an ability to live independently within the community.

1. Having considered the evidence of Dr Phillipson and Dr Venugopalan, I accept and prefer the opinion expressed by Dr Venugopalan as to the defendant’s fitness for trial.  I found his evidence to be balanced and logical, giving due regard to the requirements set out in Reg v Presser.  His evidence also accorded with the defendant having a functional ability well above his assessed IQ. 

1. By contrast, Dr Phillipson’s opinion was based on a different test.  When pressed on the elements in the test in Reg v Presser, Dr Phillipson conceded that with appropriate modifications to the trial procedure the defendant could meet each criteria. Whilst he continued to express concern as to the defendant’s ability, having regard to his limited verbal skills, to be able to follow the course of the trial and provide appropriate instructions during the trial, Dr Phillipson conceded that slowing the trial down with frequent adjournments, would largely ameliorate his concerns. 

1. Having considered the evidence, I am satisfied adaptation of the trial process to allow for regular adjournments, together with a careful approach by counsel to the taking of instructions during the course of the trial, will ensure the defendant receives a fair trial.  Courts regularly adjust to accommodate the varying needs of persons appearing before the Court.[11]

   [11]R v M at [16]; see also [18].

1. In reaching this conclusion, I have had regard to the nature of the alleged offence, the likely length of a trial and the complexity of issues likely to arise at trial.  The elements of the alleged offence are not complex and the evidence is short compass.  Only a limited number of witnesses will need to be called.  There is unlikely to be any expert evidence.  I also have regard to the fact that the defendant has proffered his explanation in the past, and appears to have been able to relate his version of the incident to both examining psychiatrists.

1. I have also had regard to the advice of the assisting psychiatrists.  Whilst both psychiatrists accepted the issue of fitness for trial was marginal, both advised that I should ultimately prefer the opinion expressed by Dr Venugopalan.

Conclusions

1. I am satisfied the defendant, notwithstanding his low intellectual capacity, is fit for trial. 

1. I order:

1.          At the time of the alleged offence the subject of the reference the defendant was not suffering from unsoundness of mind as defined in the Schedule of the Mental Health Act2000 (Qld).

2.          The defendant is fit for trial.

3.          The proceedings for the alleged offence are to be continued according to law.

4.          The reports in the proceedings, and the transcript of the proceedings, are to be released to the parties in the criminal proceedings.