Re O'Connor

[2010] QMHC 47

MENTAL HEALTH COURT

CITATION:

Re O’Connor [2010] QMHC 47

PARTIES:

REFERENCE BY THE DIRECTOR OF PUBLIC PROSECUTIONS IN RESPECT OF ROBERT JOHN O’CONNOR

PROCEEDING:

No 223 of 2009

DELIVERED ON:

9 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

9 December 2010

JUDGE:

Philippides J

ASSISTING PSYCHIATRISTS:

Dr J M Lawrence

Dr E N McVie

FINDINGS AND ORDER:

That the defendant was not of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld);1.   

That the defendant is fit for trial;2.   

Proceedings are to continue according to law.3.   

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF

MENTAL ILLNESS OR INCAPACITY – where defendant charged with stealing, drive while relevant drug is present in blood, and drive without licence – where expert opinion differed as to the extent of brain injury the defendant suffered from – where a disparity existed in defendant’s recorded cognitive capacity during his visits to the reporting psychiatrists –  whether defendant is fit for trial

Mental Health Act 2000 (Qld), Schedule 2

R v M [2002] QCA 464

COUNSEL:

D Shepherd for the defendant
J Tate for the Director of Mental Health

S Bain for the Director of Public Prosecutions (Qld)

SOLICITORS:

Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Qld)

PHILIPPIDES J:

1. Robert John O'Connor is charged with stealing on 21 October, 2008 and drive while relevant drug is present in blood and drive without licence, both on 25 December, 2008.

1. There is no support in the clinical material for a finding that the defendant was of unsound mind at the material times.  The sole issue for the Court is one of fitness for trial.

1. There is no doubt that the defendant sustained a significant brain injury as a result of the car accident in which he was involved.  The area where there is a dispute is the extent of the defendant's deficits arising from his brain injury.

1. Dr Fama saw the defendant about six months after the accident, that is, on 3 July 2009.  He diagnosed dementia following diffused brain trauma, previous alcoholism and dissocial personality traits.

1. Dr Fama noted that the defendant was only able to report fragments of his personal history.  In oral evidence, Dr Fama indicated that one ought not to place much store by that because he did not pursue that aspect of matters with the defendant.

1. Nevertheless, Dr Fama stressed that, in his view, the defendant had significant memory loss which was extensive and ongoing.  He considered that further improvement in the defendant's cognitive abilities, whilst theoretically possible, was unlikely.

1. As to fitness for trial, Dr Fama did not consider that there was, ultimately, an issue in the defendant understanding the Court process.  He considered that, with assistance, the defendant would be able to appreciate the Court process.  In opining that the defendant was unfit for trial, the area where Dr Fama saw a difficulty was in the defendant being able to instruct counsel and able to follow the evidence and comment on it.  He considered, in those circumstances, that the defendant should be seen as unfit for trial.

1. I note, however, that when Dr Arthur saw the defendant in November 2009, Dr Arthur was able to obtain a reasonable personal history from the defendant and that the defendant performed satisfactorily when confronted with a concentration test.  In addition, Dr Arthur noted that notwithstanding the defendant's undisputed significant head injuries, the clinicians at the hospital upon the defendant's discharge noted that the defendant had only moderate deficits in high-level cognitive functioning and that the defendant performed well in most functional tasks.  Moreover, the defendant was considered to have a reasonable level of orientation and judgment and he was assessed as having an intact new learning and personal history.  Upon discharge, the defendant has managed his own financial affairs.  In those circumstances, Dr Arthur pointed out that there was disparity between the defendant's presentation to Dr Fama and the views expressed upon the defendant's discharge from hospital. 

1. Furthermore, there was also a disparity between the defendant's presentation to Dr Fama and the presentation some months later to Dr Arthur.  That inconsistency does not sit well with Dr Fama's view that an improvement in the defendant's cognitive abilities was unlikely.

1. I note Dr Fama postulated that the defendant’s variable performance and the evidence of lack of effort highlighted by Dr Keane in her report (in particular, the concerns raised about suboptimal effort, unreliability and exaggeration of cognitive symptoms) ought to be seen in the context of the defendant having a general malaise.  However, that also does not sit well with the fact that subsequently to Dr Fama's assessment of the defendant, at the time when Dr Arthur saw him, the defendant was able to display humour and make a joke about the assessment process. In those circumstances, Dr Fama's postulation of a general malaise as an explanation for variable performance is not persuasive.  I note the opinion of Dr Arthur in his report that, with assistance, the defendant was fit for trial.  I also note in oral evidence that he did not wish to be emphatic about the matter. 

1. The relevant onus is on the balance of probabilities and, bearing in mind what the assisting psychiatrists have said, I am satisfied that the defendant is fit for trial, although he will need to be afforded appropriate assistance.  The Court is able to accommodate individuals with cognitive difficulties and as was pointed out in         R v M [2002] QCA 464, the fact that a defendant’s intellectual or cognitive deficiencies means that the Court process is a longer one, is simply something which the Courts should and do accommodate.

1. In the circumstances, I find that the defendant was not of unsound mind at the relevant times.  The defendant is fit for trial.  The proceedings will continue according to law.  I grant leave to the parties to use the reports in further proceedings.