Re PJZ

[2003] QMHC 17

MENTAL HEALTH COURT

CITATION:

Re PJZ [2003] QMHC 017

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF PJZ

PROCEEDING NO:

0217/02

DELIVERED ON:

9 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

25 July, 25, 26 August 2003

JUDGE:

Wilson J

ASSISTING PSYCHIATRISTS:

Dr D A Grant
Dr J F Wood

FINDINGS AND ORDERS

1. Finding that there is reasonable doubt that the defendant committed the alleged offences, that doubt not existing only a consequence of the defendant’s mental condition;
2. Finding that the defendant is fit for trial;
3. Order that the proceedings against the defendant be continued according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with seven counts of indecent assault – where defendant is mildly intellectually retarded – where defendant does not suffer from mental illness – where defendant denies all allegations of assault – where such denials are plausible and rational – whether there is a reasonable doubt that the defendant committed the alleged offences, that doubt not existing only as a consequence of the defendant’s mental condition

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant is mildly intellectually retarded – where defendant has tendency to go off on tangents and has poor concentration – where defendant flatly denies allegations – whether defendant could instruct counsel – whether defendant is fit for trial

Mental Health Act 2000 (Qld), s 267, s 268, schedule 2

R v M [2002] QCA 464, referred to
Kesavarajah v R (1994) 181 CLR 230, referred to

Ngatayi v R (1980) 147 CLR 1, cited

COUNSEL:

SM Cool for the defendant
J Tate for the Director of Mental Health
MD Nicolson for the Director of Public Prosecutions

SOLICITORS:

GJ Buckley & Associates for the defendant
The Crown Solicitor for the Director of Mental Health
The Director of Public Prosecutions

1. WILSON J:  PJZ (“the defendant”) has been charged with seven counts of indecent assault.  The matter of his mental condition in relation to the alleged offences was referred to the Mental Health Court by his legal representative.

1. The reference was heard over 3 days, on 25 July and 25 and 26 August 2003.  At the conclusion of the hearing I was satisfied that there is reasonable doubt that he committed any of the alleged offences, the doubt not existing only as a consequence of his mental condition.  I found him fit for trial and ordered that the criminal proceedings be continued according to law.  These are my reasons for so finding.

1. The defendant was born on 5 October 1956.  He is married with 3 children.  He is mildly intellectually retarded, having a full scale IQ of 65 (about the first percentile level), a borderline performance IQ and an extremely low verbal IQ.  He is in receipt of a disability support pension, but does some work as a carpet delivery and removal hand. 

1. The defendant lives in the district.  The charges all relate to alleged conduct towards women living in the district.  The allegations can be briefly summarised as follows -

(i)         Date:              between 1 October 2000 and 25 December 2000

Complainant:  [“RTH”]

The defendant was a friend of the complainant RTH’s husband.  He went to their house.  The complainant’s husband was outside, while the defendant and the complainant were inside.  The defendant held the complainant in a close embrace and tried to kiss her on the mouth.  She turned her head quickly and he kissed her on the right cheek.

(ii)         Date:              between 1 October 2000 and 31 January 2001

Complainant: RTH
There was allegedly a second incident involving RTH, again in her house.  Her sister MLR was present.  The defendant kissed the complainant on the mouth, holding her close to his body in a very forceful, very strong embrace.

(iii)        Date:              between 1 October 2000 and 31 January 2001

Complainant:  [“MLR”]
This incident is alleged to have occurred at RTH’s house.  The defendant grabbed the complainant MLR around the shoulders.  He pulled her tightly to his body and pulled her toward his face, trying to kiss her on the mouth.  She turned her head and raised her hand to stop him.  He kissed her on the right cheek.  He held her very tightly, but she struggled free.

(iv)        Date:              between 1 October 2000 and 31 January 2001

Complainant:  [“ASW”]
A tyre on the complainant ASW’s car needed changing.  She drove to the wreckers, accompanied by MLR (who was in the front passenger seat) and the defendant (who was in the middle of the back seat).  While the tyre was being changed, the defendant stood in front of the complainant and placed a hand on the back of each of her legs just below her buttocks.  He lifted her off the ground and held her tightly.  She slid down to try to get back to the ground.  He placed a hand on her inside leg and pushed it up so that his index finger was hard against her vagina. 

(v)         Date:              between 1 February 2001 and 28 February 2001

Complainant:  [“SAC”]
The defendant offered to help the complainant SAC remove a tree from the back corner of her yard with a chainsaw.  She accepted his offer and he removed the tree.  He then walked up to her and pulled her into a very close and tight embrace.  She could feel his erect penis against the lower part of her abdomen.  She tried to push him away, telling him to desist.  He stared back at her with a glazed look.  He grabbed her right breast with his left breast.  She broke free.

(vi)        Date:              between 1 March 2001 and 30 April 2001

Complainant:  [“DJM”]
The complainant DJM was with the defendant at his house waiting for his wife to return.  He offered to show the complainant pornographic magazines, but she declined.  She asked for a cup of coffee.  He got up from his chair and approached her, bending down in front of her and kissing her firmly on the lips.  They had coffee.  He grabbed her again around the waist.

(vii)       Date:              13 March 2001

Complainant:  [“DKL”]
The complainant DKL went to the defendant’s house to use the telephone.  He grabbed her in a bear hug and pulled her across the lounge up a single step into the dining room/kitchen area.  He held her tightly against the dining table and kissed her violently on the mouth.  She could feel his erect penis.  He pulled up her shirt and grabbed her right breast and squeezed it hard.  He placed his head on her left breast and sucked hard on the nipple area.  Eventually she broke free and ran from the room.  He kept yelling after her, “Sorry.”

1. The defendant flatly denies all of the allegations of assault.  He told Dr Peter Fama, a psychiatrist who examined him pursuant to a Court examination order, that the women had ganged up against him to make up a story and so get a lot of money.  He said the complainants RTH and MLR were regular dope smokers, and that SAC owed him money (about $100) for fixing the clutch cable on her car.  The defendant told Dr William Kingswell, another psychiatrist who examined him pursuant to a Court examination order, that the women all knew each other, and that they had conspired against him to obtain criminal compensation.  He said they were all “druggies”.  He said that the incidents alleged by RTH did not happen; that SAC was lying and that she owed him money; he conceded offering to show DJM pornographic magazines, but denied the alleged assault on her, saying that she was a real pest who was always present, never allowing him and his wife any time to themselves; he said none of DKL’s allegations was true.

1. The defendant suffers from mild intellectual retardation.  He does not suffer from a mental illness.  (Dr Ian Curtis, a psychiatrist who examined him at the request of his solicitors, initially expressed the opinion that the suffered from propf schizophrenia, a type of psychosis associated with intellectual retardation.  However, I am satisfied that that is a discredited diagnosis.  Moreover, in oral evidence Dr Curtis departed from his opinion on this point, and by the time of final addresses it was common ground at the Bar table that this is not a case of dual diagnosis.)

1. Section 268 of the Mental Health Act 2000 (Qld) provides (so far as relevant) -

“268      Reasonable doubt person committed offence

(1)         The Mental Health Court must not make a decision under section 267(1)(a) … if the court is satisfied there is reasonable doubt the person committed the alleged offence (the “disputed offence”).

(2) However, the court may make a decision under section 267(1)(a) … if the doubt the person committed the disputed offence exists only as a consequence of the person’s mental condition.”

It is not for this Court to determine the credibility disputes between the various complainants and the defendant. In each case I am satisfied that there is a doubt that is not based on speculation or otherwise fanciful that the defendant committed the alleged offence. Accordingly this Court ought not make a finding under s 267(1) (a) in relation to his soundness of mind, unless the doubt exists only as a consequence of his mental condition: s 268(2).

1. The defendant denies that the alleged conduct took place.  His denials are plausible and rational, and contain no psychotic flavour.  While I accept that in consequence of his natural mental infirmity it may be difficult for him to appreciate adult boundaries of acceptable conduct, this is not a case where he concedes that certain conduct occurred but denies that it was wrongful.   Relying on the evidence given by Dr Curtis and Dr Moyle (another psychiatrist who examined the defendant at the request of his solicitors), counsel for the defendant urged the Court to find that memory deficit was a feature of his intellectual retardation, and that his denials and conspiracy theory were mechanisms employed for dealing with his loss of memory.  While psychological testing showed a deficit in his short term memory, it is his long term memory which is relevant.  He was able to give the various doctors information about his family background, his involvement in a motor vehicle accident some years previously and his criminal history.  I accept the advice of Dr Grant (one of the Assisting Psychiatrists) that the evidence does not support his intellectual handicap being a clinical condition which should affect his memory of the time of the offences, and that on the evidence he has basically reasonable memory functions.  Even Dr Moyle conceded that he could not exclude the possibility of a deliberate loss of memory for fear of the consequences of the truth. 

1. In short, I am not satisfied that the doubt the defendant committed the alleged offences (or any of them) is in consequence only of his mental condition.  It follows that, so long as I am satisfied that he is fit for trial, I should order that the proceedings against him be continued according to law.

1. According to the definition in schedule 2 to the Mental Health Act 2000 -

“ ‘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.”

In Kesavarajah v R (1994) 181 CLR 230 at 245 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 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.”

In R v M [2002] QCA 464 the Court of Appeal considered the meaning of “fit for trial” in the Mental Health Act 2000. After citing this passage from Kesavarajah, de Jersey CJ (with whom McPherson JA and Mullins J agreed) commented on the significance of the defendant’s being of low intellect and his being represented by counsel, citing these passages from Ngatayi v R (1980) 147 CLR 1 at 8 and 9:

“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 Reg 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”.

“[An accused person cannot] escape trial simply by showing that he is of low intellect.”

“… 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.”

The Chief Justice said at [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 the courts should and do bear.”

1. Once the defendant had denied the alleged conduct, Dr Kingswell did not press him on the denials.  The other doctors who examined him did so, albeit to differing extents, having regard to his tendency to go off on tangents and to have poor concentration.  Dr Fama told the Court that he could not extract any details, while Drs Moyle and Curtis found him ineffectual at explaining himself or explaining the denials.  Both of the Assisting Psychiatrists advised me that on their assessment of the evidence from a clinical standpoint he would be able to instruct counsel, although he would have difficulty in doing so.  Dr Wood said he was not persuaded the defendant could not communicate, with help, what he knows about his behaviours on the occasions in question, and Dr Grant considered the defendant could instruct counsel, albeit in a rather concrete way. 

1. I am satisfied that the defendant understands what is alleged against him and has the capacity to plead to the charges.  He understands the nature of criminal proceedings (having previously been convicted in Magistrates Courts of assaults on females).  He has the capacity to understand the purport of evidence called by the prosecution and to instruct his counsel on the facts.  It is not necessary that he be able to instruct counsel on whether or not the alleged acts, if they occurred, were indecent.  I find him fit for trial.

1. I order that the proceedings against the defendant for the alleged offences be continued according to law.