Re Ryan

[2015] QMHC 17

MENTAL HEALTH COURT

CITATION:

Re Ryan [2015] QMHC 17 

PARTIES:

REFERENCE BY LEGAL AID QUEENSLAND IN RESPECT OF ERIC JAMES RYAN

FILE NO:

No 0181 of 2013

DELIVERED ON:

6 October 2015

DELIVERED AT:

Mental Health Court at Brisbane

HEARING DATE:

8 September 2015

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr McVie

Dr Reddan

ORDER:

1.     At the time of each of the alleged offences, the subject of the reference, the defendant was not suffering from unsoundness of mind as defined in the schedule to the Mental Health Act 2000 (Qld).

2.     In respect of each of the alleged offences, the defendant is fit for trial.

3.     Each of the alleged offences is to proceed according to law.

4.     Copies of the reports are to be provided to the parties in the criminal proceedings.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant was charged with three charges of stalking – where respondent reports having epilepsy, bipolar affective disorder and schizophrenia – where the defendant is of below average intelligence – where the defendant is illiterate and has limited numeracy – whether the defendant is fit for trial

Mental Health Act 2000 (Qld)

COUNSEL:

J D Briggs for the Defendant
M T Whitbread for the Director of Public Prosecutions (Queensland)
S J Hamlyn-Harris for the Director of Mental Health

S Dullaway for the Director of Forensic Disability

SOLICITORS:

Legal Aid Queensland for the Defendant
Office of the Director of Public Prosecutions (Queensland)
Crown Law for the Director of Mental Health
Crown Law for the Director of Forensic Disability

1. BODDICE J: By Reference filed 3 July 2013, Legal Aid Queensland referred to this court the mental condition of Eric James Ryan at the time of three counts of stalking alleged to have occurred between 1 October 2010 and 12 January 2011.  There is no dispute the defendant was not of unsound mind at the time of the alleged offences.  At issue is whether the defendant is fit for trial.

Background

1. The defendant was born on 14 February 1971, the second-youngest in a sibship of 10 children.  His father was a “strapper” (who picked up bottles and cans for recycling) and his mother was a nurse.  The defendant was educated in a special school, but was repeatedly expelled for aggressive behaviour. He discontinued his formal education at the age of 11 or 12 and was not enrolled in secondary school. 

2. The defendant has a history of physiological and psychological trauma.  He reports being sexually abused by his father’s friends at the age of 10; he subsequently had nightmares and wet the bed.  The defendant also reports being assaulted by a group of people in 1995 or 1996 and being medically evacuated and hospitalised; the duration of that hospitalisation is unclear.

3. The defendant is of below average intelligence.  He is illiterate and has limited numeracy.  The defendant has never had full-time employment, and receives the Disability Support Pension.  Collateral information indicates the majority of his siblings also have intellectual disabilities; only one has completed school and had long-term employment.[1]

   [1]     Exhibit 13: Report of Mr Eugene Odendaal dated 14 July 2014, page 5.

4. The defendant is the father of three children, but has no contact with any of those children.  He has limited friendships.  The defendant has a de facto partner of three years.[2]  He resides with her and her three children in a rental property in Toowoomba.  A Domestic Violence Order has been issued preventing the defendant from assaulting his partner.  He has difficulty managing his finances.  The defendant’s partner is responsible for making rental payments for their property[3] and purchasing groceries.[4]

   [2]     In some exhibits, she is referred to as the defendant’s partner; in his interview with Disability Services Queensland staff, the defendant referred to her as his friend.

   [3]     Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 8.

   [4]     Exhibit 13: Report of Mr Eugene Odendaal dated 14 July 2014, page 6.

Medical history

1. The defendant has a family history of both schizophrenia and epilepsy; his mother had schizophrenia and two of his sisters have epilepsy.  He has been diagnosed with epilepsy and takes a prescribed anticonvulsant.  Although the defendant reports a psychiatrist has diagnosed him as having schizophrenia and bipolar affective disorder, he has not been prescribed any psychotropic medication for either of those conditions and is not receiving other psychiatric treatment.  One reporting psychiatrist advised that, based on the absence of characteristic symptomatology and the lack of any psychotropic treatment, it was unlikely he had been diagnosed with either condition.

Criminal history

1. The defendant has a Queensland criminal history.  On 9 June 1998, he was convicted of three counts of breaching fine option orders.  On 16 December 1998, the defendant was convicted of breaching a domestic violence order.  On 14 April 2010, he was convicted of entering premises and committing an indictable offence, and attempted fraud.  As the defendant did not comply with the community service order imposed at that time, he was re-sentenced on 9 July 2010.  On 25 October 2010, the defendant was convicted of committing a public nuisance.  On 14 June 2012, he was convicted of breaching a bail condition.

2. The defendant has four other outstanding criminal charges in Queensland.  These charges relate allegedly to breaching a bail condition on 21 February 2011; stealing, on 24 September 2012; arson of a motor vehicle, train, aircraft or vessel, on 8 January 2013; and threatening violence by discharging firearms or other act, on 21 January 2013.

Index offences

1. The defendant is charged with three counts of unlawful stalking against three different female complainants in Charleville.  The first count was allegedly committed between 1 October 2010 and 31 December 2010.  The second count was allegedly committed between 1 November 2010 and 25 December 2010.  The third count was allegedly committed between 28 November 2010 and 12 January 2011.  A nolle prosequi was entered in relation to a fourth count of stalking another female complainant in Charleville, allegedly committed between 30 December 2010 and 11 January 2011.

Reporting psychiatrists

Dr Joanne Barkla

1. Dr Barkla initially interviewed the defendant on 20 July 2012, for about one hour and fifteen minutes.  Dr Barkla subsequently interviewed him on 6 August 2012, for about thirty minutes.  Dr Barkla produced an initial report dated 28 August 2012.  Dr Barkla observed that the defendant was late, characterising his appearance as “quite dishevelled.”[5]  Dr Barkla opined he had slight dysarthria, was mildly thought-disordered and was difficult to follow.

   [5]     Exhibit 2: Report of Dr Joanne Barkla dated 28 August 2012, page 4.

2. The defendant reported to Dr Barkla that his father, mother and he were injured when he was an infant after they were hit by a truck.  He reported he had two older sisters, six older brothers and one younger brother, although one of his brothers was burnt to death.  The defendant characterised his mother as being violent and an excessive drinker.[6]  He reported that his father died in his sleep, and his mother was killed in 2005 after she was hit by a car (the defendant believed her killing was deliberate).

   [6]     Exhibit 2: Report of Dr Joanne Barkla dated 28 August 2012, page 4.

3. The defendant advised Dr Barkla that when he was younger, he drank to excess.  He reduced his alcohol consumption when he was about 30 years of age.  He now did not drink at all.  The defendant reported smoking one cone of marijuana most nights, but denied using other illicit substances.  He reported he was first diagnosed with epilepsy after his mother died.  The defendant was receiving 800 mg of Epilim (an anticonvulsant) once each day.  His last seizure was three months earlier. 

4. The defendant advised Dr Barkla he had consulted a psychiatrist, Dr Joyce Arnold, for several years, and had been diagnosed with schizophrenia and bipolar affective disorder.  However, he had not been prescribed any psychotropic medication for either of those conditions and was not receiving any other psychiatric treatment.  Dr Barkla doubted this psychiatric history, commenting “it would be quite unusual to be managed unmedicated for either of these two conditions.”[7]

   [7]     Exhibit 2: Report of Dr Joanne Barkla dated 28 August 2012, page 4.

5. Dr Barkla opined the defendant was aware of the index offences.[8]  He was adamant he had not stalked the complainants, but provided Dr Barkla with “inconsistent and conflicting”[9] accounts; he denied knowing who the complainants were, but was able to guess at their ages and confirm some information in relation to the particulars of the charges.  In Dr Barkla’s second interview with the defendant, it was difficult for her to elicit further information from him in relation to the index offences.  Dr Barkla opined that he had interpreted his being charged with the index offences as an example of the community’s dislike of him and his family.

   [8]     This may have been correct, as the indictment was not presented until 27 July 2012, and the nolle prosequi was not entered until 6 February 2013.

   [9]     Exhibit 2: Report of Dr Joanne Barkla dated 28 August 2012, page 2.

6. On informally assessing the defendant’s cognitive capacities, Dr Barkla observed he was aware of the date but was not consistently able to do basic calculations and had a limited awareness of current events.  Dr Barkla opined there was evidence the defendant was at least of below average intellectual capacity, but his apparent intellectual defects had been exaggerated on occasions.  Dr Barkla considered the defendant was likely functioning in the range of mild mental retardation.  However, she had discontinued cognitive testing because he became increasingly agitated, and recommended this diagnosis be confirmed with formal psychometric testing.  Dr Barkla opined that the defendant’s intellectual impairment was lifelong, and associated with his functional impairments, including his illiteracy, limited numeracy and inability to maintain employment.

7. As to his current psychiatric symptoms, the defendant reported persistent sleep disturbance and recurring nightmares, centring on his mother.  He said he heard voices inside his head most days, but Dr Barkla considered his description of the voices vague, and more consistent with his own thoughts.  The defendant also reported subjective feelings of persecution, but they were not of delusional intensity; they were limited to the belief the local community did not like him or his family.[10]

   [10]    Exhibit 2: Report of Dr Joanne Barkla dated 28 August 2012, page 5.

8. Consistent with her observations about the unlikelihood of the defendant’s self-reported psychiatric history, Dr Barkla opined that “his absence of being on appropriate medication for [schizophrenia and bipolar affective disorder] and the relative paucity of symptoms suggestive of this condition cast doubt upon this diagnosis.” As such, there was insufficient evidence to suggest he had either of those conditions, although given the difficulties in obtaining history and the lack of collateral information concerning his mental state, those conditions could not be excluded.  Dr Barkla also canvassed the potential the defendant had post-traumatic stress disorder, noting that it could not be excluded.

9. On the balance of probabilities, Dr Barkla opined the defendant was unfit for trial.  As to the Presser[11] criteria, Dr Barkla opined he could “understand in a general sense with what he has been charged”, but his “significant mental retardation” would limit his ability to understand the nature, and follow the course of, court proceedings against him.  Dr Barkla considered the defendant would have difficulty in exercising his right to challenge jurors and understanding the effects of any evidence against him.  Dr Barkla doubted his ability to decide what defence to advance and his capacity to explain his account to counsel and the court. 

   [11]    R v Presser [1958] VR 45.

10. As to the impact of the trial, Dr Barkla opined it was quite probable the defendant would become agitated and distressed by questioning, which would further reduce the likelihood of him giving a coherent history.  Insofar as his unfitness for trial was related to his mild mental retardation, Dr Barkla considered that unfitness permanent, although she considered his heightened reactivity and agitation may improve with treatment.

11. As to the defendant’s future management, Dr Barkla recommended he be engaged in treatment.  Given the risk his engagement with psychiatric treatment would be inconsistent and erratic, Dr Barkla recommended an involuntary treatment order.

Dr Kenneth Arthur

1. Dr Arthur conducted a single interview with the defendant on 14 March 2014, for about two hours.  Dr Arthur produced an initial report dated 14 March 2014.  According to Dr Arthur, he was clean-shaven, but was also “mildly dishevelled and malodorous”.[12]

   [12]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 8.

2. The defendant gave Dr Arthur similar accounts of his familial relationships and childhood.  However, he provided further information about his familial relationships, saying despite his father drinking “all the time”;[13]  [he and his siblings] had a good father and mother … [they] spent a lot of time with us.”  The defendant was reticent to discuss his romantic relationship history, his children or his day-to-day activities with Dr Arthur.

   [13]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 6.

3. Dr Arthur observed the defendant “became increasingly guarded when asked”[14] about his alcohol consumption and drug use.  The account of alcohol consumption he provided to Dr Arthur differed from that he provided to Dr Barkla.  The defendant reported to Dr Arthur that he used to drink alcohol, but stopped because he developed liver and kidney conditions.  He denied to Dr Arthur that he had ever used cannabis or other illicit drugs, and was unaware of ever contracting Hepatitis C.

   [14]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 6.

4. The medical history the defendant provided to Dr Arthur was also not completely consistent with that provided to Dr Barkla.  He reported to Dr Arthur he had a family history of both epilepsy and schizophrenia; his mother had schizophrenia and two of his sisters have epilepsy.  The defendant had had epileptic fits since childhood.  He advised Dr Arthur he was receiving 800 mg of Valproate (an anticonvulsant and mood-stabiliser) once each day and could not recall his last seizure.  The defendant did not want to talk about his history of accidents or assaults, but did say he “had a hiding in Roma which fucked [him] up … hit in the back of the head with a baseball bat … was in a coma after that … woke up two weeks later in Brisbane.”[15]  Dr Arthur characterised him as “extremely reticent” to discuss his psychiatric history.[16] 

   [15]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 6.

   [16]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 5.

5. Dr Arthur opined that on direct questioning, the defendant did not endorse any first-rank psychotic symptoms, such as persecutory delusions, bizarre beliefs, thought insertion/broadcasting, delusions of reference or passivity phenomena.  He identified he had problems with anger and low mood, but did not describe a pervasively depressed state.  The defendant repeatedly expressed the belief the residents and police of Townsville were persecuting him and his extended family but would not elaborate.  When Dr Arthur asked him why he had previously consulted another psychiatrist, Dr Arnold, the defendant replied “I seen her for a while … I had schizophrenic … don’t know what the other one is … they put me on tablets”, but he was no longer taking psychotropic medication, because “Dr Arnold told me to stop taking them … was going to put me on something else … I’m still waiting for that.”[17]

   [17]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 5.

6. The defendant became angry when Dr Arthur asked about the index offences.  When asked to clarify his account of one of the alleged offences of stalking, he gave Dr Arthur a “somewhat garbled and disjointed response”,[18] in which he was driving past a park and saw two of the complainants “running amok” but drove straight past them.  Dr Arthur said the defendant was unable or unwilling to provide further information.  He intimated to Dr Arthur police had charged him with the offences “because [he] was a Ryan … they hate Ryans.”[19]

   [18]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 3.

   [19]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 3.

7. Dr Arthur characterised the defendant’s affect in the interview as “labile, irritable and easily aroused … he was given to angry denials and at times would become sullen and withdrawn”.  As the interview continued, he “became increasingly uncooperative, refusing to answer questions or engage in any assessment of his cognitive status.”[20]  Dr Arthur opined that “it was difficult to tell whether [the defendant] was being purposely vague and uninformative or [whether] this was a reflection of his low intellect.”[21]  

   [20]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 8.

   [21]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 8.

8. Dr Arthur terminated the assessment because of the defendant’s “increasingly erratic behaviour, hostile body language and escalating levels of verbal hostility and profanities.”[22]  Dr Arthur noted it was possible there was an operant aspect to his behaviour, as it allowed him to avoid parts of the assessment.  Dr Arthur also noted there appeared to be a significant dispute of fact, which he opined was not primarily related to the defendant’s psychiatric conditions or intellectual disability.

   [22]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 8.

9. As to fitness for trial, Dr Arthur opined the defendant was aware of the charges, and characterised stalking as “following people around”.[23]  When asked about the function of the Court, he was able to identify the role of a magistrate, although he described the role of his lawyer as “to help me out … but all he does is muck me around.”[24]  Dr Arthur stated that when asked how he would plead to the charges, the defendant went into “an angry rant”,[25] demanding that everyone in Court be given a lie detector test as he believes other people are lying about his charges.  He advised Dr Arthur he would plead not guilty to each charge.

   [23]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 7.

   [24]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 7.

   [25]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 7.

10. When Dr Arthur asked the defendant if he could follow Court processes, he responded: “the Judge talks too quick … my brain’s a little bit too slow … when my brain clicks I know what is going on … but sometimes I don’t … understand what they are saying.”[26]  In relation to whether he understands his lawyer’s advice, he advised Dr Arthur that he “tell[s] people [he doesn’t] understand most of what they are saying … Judges are too fast talkers … [he] can’t read or write … [and] need[s] someone to read it out for [him] real slow.”[27] Dr Arthur found it was difficult to engage the defendant in a discussion about his right to instruct counsel, or whether he would be able to give his account of events to the Court. At this point, he “retreated into a sullen and angry silence”.[28]

    [26]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 7.

    [27]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 7.

    [28]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 7.

1. Dr Arthur concurred with Dr Barkla that the defendant appeared to be a “vulnerable individual” who would be disadvantaged in any Court proceedings by his apparent intellectual disability and paranoid stance.  Although he was an unsophisticated and potentially intellectually impaired man, Dr Arthur agreed with Dr Barkla that it was possible he was deliberately over-stating his impairments.  Relevantly, Dr Arthur noted the defendant had refused to engage in even a cursory assessment of his cognitive status in their interview.  Dr Arthur observed that he had had some previous contact with courts and had a basic appreciation of the role of the magistrate or judge, and the prosecution and defence.  

2. Dr Arthur opined that the defendant was aware, at least at a basic level, of the charges against him and could affirm his intention to plead not guilty.  Although he would be a difficult client to take instructions from, there were multiple potential explanations for that, including his general paranoia regarding authority and the law, his irritable and irascible temperament, and an apparently low frustration tolerance.  Dr Arthur noted he was “not entirely convinced that [those] factors render[ed] [the defendant] unfit to plead or to stand trial.”[29]  Dr Arthur opined that with suitable support and modifications, he would be fit to stand trial.

   [29]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 14.

3. As to future management, Dr Arthur advised there was insufficient clinical or documentary evidence to support a clear diagnosis for the defendant.  While Dr Arthur was satisfied he had a personality disorder, he was unconvinced he also had a primary mood or psychotic illness.  Like Dr Barkla, Dr Arthur recommended a formal assessment of the defendant’s cognitive functioning to assist the court to determine whether he is fit for trial.  If the defendant was found unfit for trial by virtue of his intellectual impairment, Dr Arthur considered he should be subject to a Forensic Order – Intellectual Disability given his complex presentation. 

Psychological reports

1. Dr Mason conducted a single assessment with the defendant on 27 February 2013 for about three hours.  Dr Mason produced an initial report dated 14 February 2014.  According to Dr Mason, he arrived two hours early for his appointment.  As the defendant was agitated about domestic issues and the prospect of missing his bus back to Toowoomba, arrangements were made to see him shortly after he arrived in the office.  Dr Mason described the defendant as being agitated throughout the interview, and found it difficult to establish or maintain rapport with him.

2. The familial and personal history the defendant gave to Dr Mason generally accorded with that provided to Doctors Barkla and Arthur.  However, it differed in at least two important respects. First, he reported witnessing a number of incidents of domestic violence as a child.  Second, the defendant denied being the victim of any sexual abuse as a child, in direct contrast to the account he had given to Dr Barkla.  His account of when he completed his education was difficult for Dr Mason to follow; he alternated between reporting that he left school at the age of 11 and at the age of 15.  Given his account to Dr Barkla, and his recollection of never having attended secondary school, Dr Mason thought it likely the defendant finished school at the age of 11 or 12.

3. The defendant reported to Dr Mason he had not “had a drink for 20 years”, which was consistent with the information provided to Dr Barkla.  However, on closer questioning, he said he “may have a couple with [his] brother”, but they did not drink much as his brother had diabetes, and although his partner drank a lot, he “just walk[ed] away” because he does not want to “fuck [his] life up.”[30]  The defendant said he had taken illicit substances in previous years, but they made him “psycho – [he had had] schizophrenia.”[31]  He denied any current usage of illicit substances, although he said his partner tried to make him take drugs, because she wanted him “to go psycho and get locked up.”[32]

   [30]    Exhibit 11: Report of Dr Jonathan Mason dated 14 February 2014, page 6.

   [31]    Exhibit 11: Report of Dr Jonathan Mason dated 14 February 2014, page 6.

   [32]    Exhibit 11: Report of Dr Jonathan Mason dated 14 February 2014, page 6.

4. As to his physical health, the defendant said he was taking medication to prevent seizures, but he had not had a seizure in “a long time.”[33]  He reported to Dr Mason that he first had seizures shortly after his mother’s death in 1995, but also said he experienced them after a car accident when he was a child, and after a serious assault in 1996.  As to that assault, the defendant reported he suffered a head injury, lost consciousness, and had to be medically evacuated from Charleville to Toowoomba.  He was not able to provide significant details of the injury, although he said he had broken a number of ribs.  The defendant also recounted a number of other incidents and injuries to Dr Mason.

   [33]    Exhibit 11: Report of Dr Jonathan Mason dated 14 February 2014, page 5.

5. The defendant’s account of his psychiatric health to Dr Mason differed from that given to Doctors Barkla and Arthur.  For instance, although he mentioned he took medication to prevent seizures, he did not mention being diagnosed with schizophrenia.  The defendant also told Dr Mason he was unsure whether there were significant mental health issues in his family, noting only that both his mother and father had issues with alcohol.

6. Dr Mason raised the index offences with the defendant.  He was unable to provide specific responses to Dr Mason in relation to each of the charges.  The defendant said generally he was the victim of community members and a particular police officer.  He did say that at the time of at least one of the index offences, he was attending a family barbeque and could not have committed the offence.  The defendant added that “I may have been in the same shop as some of them and asked them to help me find a book or something.”[34]  Dr Mason noted that although he was not able to provide a coherent account of his involvement in the index offences, the other witness statements provided to police were consistent with each other.

   [34] Exhibit 11: Report of Dr Jonathan Mason dated 14 February 2014, page 11.

7. Dr Mason had the defendant complete the Wechsler Adult Intelligence Scale-Fourth Edition (“WAIS-IV”).  Dr Mason characterised that test as the “gold standard” for the cognitive testing of English-speaking participants in Australia.  The WAIS-IV comprises 14 sub-tests, a combination of ten of which can be used to provide the participant’s full-scale IQ, as well as a number of more specific measures of cognitive functioning.  Dr Mason described him as being reluctant to take the test.  However, after Dr Mason gave the defendant a break and assisted him to call his solicitor, he agreed to engage in the remainder of the assessment.  Dr Mason observed that he was “able to concentrate well throughout the assessment”,[35] although he repeatedly complained he was finding it hard and required encouragement to continue.

   [35]    Exhibit 11: Report of Dr Jonathan Mason dated 14 February 2014, page 7.

8. The defendant’s scores for verbal comprehension, perceptual reasoning, working memory and processing speed were all in the “extremely low” range, as was his full-scale IQ of 51.  Dr Mason observed he performed below the first percentile in all of the indices with no significant differences observed between the different domains of cognitive functioning.  Dr Mason opined that the defendant’s “performance on the test appeared to be a reasonable representation of his true level of functioning, probably reflecting his typical level of attainment, but also his tendency to avoid tasks that he finds cognitively difficult, and to allow strong emotions to overthrow his ability to remain engaged in demanding tasks.”[36] 

   [36]    Exhibit 11: Report of Dr Jonathan Mason dated 14 February 2014, page 8.

9. Dr Mason attempted to conduct another test with the defendant, the MacArthur Competence Assessment Tool, which would have assessed his competence to stand trial, but he declined to continue with the assessment for long enough for Dr Mason to draw any test-informed conclusions.  Dr Mason did not conduct validity testing, but opined the defendant “demonstrates an even profile of deficits that would be difficult to fake, ruling out the possibility of malingering”.[37]

   [37]    Exhibit 11: Report of Dr Jonathan Mason dated 14 February 2014, page 11.

10. Dr Mason’s report does not specifically set out the defendant’s capacities in relation to each of the Presser criteria, although it does contain a number of relevant observations.  Dr Mason opined he was broadly able understand the nature of the charges against him, and due to his criminal history, had some understanding of the nature of court proceedings.  However, the defendant “demonstrated a markedly impaired understanding of the roles and responsibilities of judicial officers.”[38] 

    [38]    Exhibit 11: Report of Dr Jonathan Mason dated 14 February 2014, page 16.

11. Dr Mason opined the defendant was capable of basic learning; for instance, having initially described the jury as a paid group of 20-30 people, he was later able to state that a jury was a group of people who “listed to both side of the story, then decide what they want to do with him.”[39]  Further, although the defendant was initially unclear as to the meaning of pleading “guilty” and “not guilty”, he subsequently recognised pleading guilty included “admitting to doing it.”[40]  Dr Mason stated the defendant “did not appear to have the skills necessary to contest incriminating evidence”, and in the “unfamiliar, confrontational and pressured conditions of a courtroom … would be at considerable risk of providing erroneous testimony.”[41]  Of particular concern to Dr Mason was his difficulty in providing a detailed or consistent account of events to counsel and to the court.

    [39]    Exhibit 11: Report of Dr Jonathan Mason dated 14 February 2014, page 9.

    [40]    Exhibit 11: Report of Dr Jonathan Mason dated 14 February 2014, page 9.

    [41]    Exhibit 11: Report of Dr Jonathan Mason dated 14 February 2014, page 16.

12. As to future management, Dr Mason generally agreed with Dr Barkla’s recommendations. Dr Mason opined the defendant was unlikely to cooperate without the assurance provided by a forensic order, which Dr Mason observed would also provide enhanced access to psychological and psychiatric intervention services.

Ms Debbie Anderson

1. Debbie Anderson conducted a single interview of an unspecified duration with the defendant on 23 March 2015.  Ms Anderson produced an initial report dated 10 April 2015.  According to Ms Anderson, he drove himself from Toowoomba to Brisbane for their appointment.  Ms Anderson did not comment on the defendant’s appearance, but noted he was punctual and unaccompanied.[42]

   [42]    Exhibit 10: Report of Dr Kenneth Arthur dated 14 March 2014, page 8.

2. Ms Anderson described the defendant’s intellectual, physiological and psychiatric history as “complex”.[43]  Her review of his medical records, including hospital records which Dr Arthur had not had access to, provided a concise account of the defendant’s history of epilepsy (the defendant had given at least three different dates of onset), traumatic brain injury from the assault (which, the hospital records suggested, occurred in March 1996), and psychiatric history.

   [43]    Exhibit 18: Report of Ms Debbie Anderson dated 10 April 2015, page 1.

3. Ms Anderson administered the WAIS-IV, the Rey 15 Item Test, and the Test of Memory Malingering (“TOMM”).  Ms Anderson opined that “[a]ll cognitive tests are mediated by the level of effort that the individual puts into them and thus in any type of forensic circumstance it is important to formally evaluate this.”[44]  On the Rey 15 Item Test, the defendant’s performance (6 items) was below the cut-off score (7 items).[45]  On the TOMM, his performance was at the below chance level, which Ms Anderson opined implied he deliberately gave incorrect responses.  

   [44]    Exhibit 18: Report of Ms Debbie Anderson dated 10 April 2015, page 1.

   [45]    T1-21/10-4.

4. Although Ms Anderson conceded both the Rey 15 Item Test and the TOMM tested memory function rather than intellect, the defendant’s failure at both measures meant “serious concerns must be raised about any test results obtained” on other cognitive assessments.[46]  Ms Anderson attempted to administer the WAIS-IV test , but he only completed two sub-tests, and given the evidence of lack of effort on the formal measures, Ms Anderson chose not to continue.  Accordingly, Ms Anderson said she was unable to provide any valid and reliable measure of the defendant’s intellectual function.

   [46]    Exhibit 18: Report of Ms Debbie Anderson dated 10 April 2015, page 4.

Subsequent reports

1. By email dated 24 June 2014, after considering Dr Mason’s report, Dr Arthur affirmed the opinions expressed in his initial report.  Dr Arthur was concerned about the validity of Dr Mason’s report, given Dr Mason had not formally assessed the likelihood of the defendant malingering or engaging in impression management.   Dr Arthur accepted the defendant had some form of intellectual disability, but opined his clinical performance was not consistent with the extremely low IQ indicated by Dr Mason’s testing.

2. Dr Arthur produced an addendum report on 6 May 2015, after reading the neuropsychological assessment conducted by Ms Anderson.  Dr Arthur maintained the opinions stated in his initial report, noting that Ms Anderson’s assessment supported his clinical observations that the defendant may have exaggerated his cognitive deficits so as to avoid prosecution.

3. Dr Barkla produced a subsequent report on 6 July 2015, after reviewing the reports of Dr Arthur dated 14 March 2015 and Ms Anderson dated 10 April 2015.  Dr Barkla opined that the critical issue remained the defendant’s intellectual capacity and its impact on his fitness for trial.  Dr Barkla’s opinion “shifted somewhat”[47] after taking into account the information contained in the two other reports.  Taking into account Dr Arthur’s account, and Ms Anderson’s assessment, Dr Barkla opined it was “unlikely that we would be able to gain an accurate opinion with regard to his intellect.”[48]  In summary, on the balance of probabilities, although Dr Barkla considered him of low intelligence, she concurred with Dr Arthur that this was not of sufficient severity to render him unfit for trial.

   [47]    Exhibit 23: Report of Dr Joanne Barkla dated 6 July 2015, page 1.

   [48]    Exhibit 23: Report of Dr Joanne Barkla dated 6 July 2015, page 1.

4. By email dated 11 May 2015, after considering Dr Arthur and Ms Anderson’s reports, Dr Mason maintained his previous opinions.  Ms Anderson also provided a subsequent report, dated 7 September 2015.  Ms Anderson affirmed that, having been provided with further information, she maintained her previous opinions.

Dr Hanne Gudiksen

1. Dr Gudiksen, a psychiatry registrar, interviewed the defendant on 11 and 25 May 2015, and produced a report dated 19 June 2015.  Dr Gudiksen described him as slim, casually attired, and “moderately unkempt”, with poor dentition, untidy hair and amateur tattoos on his knuckles.[49]  The defendant was guarded, anxious, agitated and initially reluctant to engage in the interview, to the extent that another psychiatrist and a clinical nurse consultant had to be asked to leave the room because he expressed concerns that they intended to harm him.  Dr Gudiksen characterised the defendant’s mood as objectively dysphoric and subjectively “shit”;[50] his affect was labile, dysphoric, tearful and angry.

   [49]    Exhibit 22: Report of Dr Hanne Gudiksen dated 19 June 2015, page 3.

   [50]    Exhibit 22: Report of Dr Hanne Gudiksen dated 19 June 2015, page 3.

Evidence

1. Dr Mason affirmed his earlier opinion that the defendant’s clinical presentation and his performance in the test scores “was typical of”[51], and “broadly represent[ative] of his real day-to-day presentation.”[52]  As Dr Mason put it, what is required is a “synthesis of the testing information and the collateral information together to try and arrive at a conclusion as to whether … [it is] a point in time assessment that [is not] generally reflective of their level ability, or whether [it is] consistent with an overall poor level of functioning.”[53] 

   [51]    T1-24/20-1.

   [52]    T1-24/34.

   [53]    T1-25/25-9.

2. Dr Mason opined if there was evidence of high functioning in a patient’s educational or occupational history, he would be “much more circumspect”[54] about poor results on cognitive testing, but the defendant’s performance on the test was consistent with his limited life competencies.  When asked about the basis for his conclusion that the defendant’s performance on the cognitive assessments was a reasonable representation of his true level of functioning, Dr Mason explained: “when engaged in the subtests themselves, he was getting some right, and he was proceeding in a fairly sort of systematic fashion … for example, he wasn’t getting … very easy ones wrong, but more difficult ones right.  He was sort of proceeding though the levels of difficulty as one would expect.”[55]

   [54]    T1-25/36-9.

   [55]    T1-29/10-4.

3. Ms Anderson also affirmed the opinions expressed in her subsequent report.  Ms Anderson noted Dr Mason had not administered any formal validity measures before assessing the defendant.  Although Ms Anderson conceded the Rey 15 Item Test and the TOMM were not designed to test malingering among intellectually impaired populations,[56] she opined that normative data existed for the use of that test in those populations.  Ms Anderson opined he “was not putting forth sufficient effort on the formal tests for [her] to form a valid and reliable assessment of his cognitive function.”[57] 

   [56]    T1-15/37-39.

   [57]    T1-9/44-6.

4. Dr Arthur noted that his opinion was “not firmly held”,[58] but emphasised that Dr Mason’s report did not objectively assess the defendant’s effort on the cognitive assessments, and when Ms Anderson did assess his effort, based on his performance in the Rey 15 Item Test and the TOMM, she considered his performance to be at below-chance levels.  Dr Arthur felt the Court was left “in a bind”,[59] because of the lack of an accurate assessment of the his intellectual capacities, and Dr Arthur’s opinion that the defendant’s presentation and apparent full-scale IQ of 51 were not indicative of his true level of functioning.[60]  Ultimately Dr Arthur opined that “if [he] had to come down on one side or the other”, he “would probably come down on the side of [the defendant] being unfit … and that would be something I’m not totally comfortable with”.[61]

   [58]    T1-46/22.

   [59]    T1-46/45.

   [60]    T1-47/18.

   [61]    T1-49/26-8.

5. Dr Barkla only gave evidence very briefly at the hearing.  Like Dr Arthur, Dr Barkla believed the defendant had a mild intellectual impairment, and that, in combination with his affective state and likely reaction to a court situation, she would lean towards finding him unfit for trial.[62]

Assisting psychiatrists

[62]    T1-51/12.

Dr Ness McVie

1. Dr McVie advised the clinical evidence was that the defendant had had some type of intellectual disability all his life which had affected his long-term functioning.  It was extremely unfortunate he had not cooperated with the neuropsychology testing, which would have assisted the Court’s determination of whether the defendant could follow court proceedings.  Dr McVie opined that clinically, it did not make sense that someone with a full-scale IQ of 51 would be able to travel unassisted by bus from Toowoomba to Brisbane and make his way to several different consulting rooms on Wickham Terrace.  Some of the other activities the defendant was engaged in, including being in a domestic relationship, managing his own finances and driving a car were also inconsistent with the IQ reported by Dr Mason.

1. Ultimately, Dr McVie advised that although the defendant did have an intellectual disability, he was fit for trial, provided due regard was made for his disability.  As for future management, Dr McVie had concerns about his capacity to comply with the requirements of a forensic order.

Dr Jill Reddan

1. Dr Reddan concurred with much of Dr McVie’s advice.  Dr Reddan opined that a person with a full-scale IQ of 51 would generally require much more assistance than the defendant does with day-to-day living.  Characterising him as a “marginal case”,[63]  Dr Reddan ultimately advised the defendant was fit for trial, but would require assistance at such a trial.  As to future management, Dr Reddan shared Dr McVie’s concerns about placing him on a forensic order. 

   [63]    T1-57/46.

Applicable principles

1. The Mental Health Act 2000 (Qld) defines “fit for trial” as “fit to plead at the person’s trial and to instruct counsel and to endure the person to trial, with serious adverse consequences to the person’s mental condition unlikely”. In determining whether a person is fit for trial each of the statutory criteria must be addressed.[64]

[64]Fitness to stand trial requires:

(a)     an understanding of the nature of the charges;

(b)     an understanding of the nature of the court proceedings;

(c)     the ability to challenge jurors;

(d)     the ability to understand the evidence;

(e)     the ability to decide what defence to offer; and

(f)     the ability to explain his or her version of the facts to counsel and the court.[65]

[64]    R v House (1986) 2 Qd R 415 at 422.

[65]    R v Presser (1958) 45 VR.

Discussion

1. Whilst there have been many inconsistences in the defendant’s account of his medical and educational history, I accept he has epilepsy and is of below average intelligence.  However, I do not accept the defendant has a full-scale IQ as low as 51.  His day to day functioning is entirely inconsistent with such a conclusion.  Further, the reliability of the results of Dr Mason’s cognitive assessment of the defendant are seriously in question as Dr Mason did not conduct validity testing.  This is a significant deficiency. 

2. I accept Ms Anderson’s opinion that the defendant’s performance in Dr Mason’s cognitive assessments was not an accurate indication of his actual cognitive capacities.  I accept his low level of engagement and effort in those assessments renders the results of Dr Mason’s tests worthless. 

3. I accept the defendant is of below average intelligence, and may also have one or more psychiatric conditions.  However, I am not satisfied those conditions, even in combination with each other, render him unfit for trial.  I am satisfied the defendant has an understanding of the charges and the nature of a plea.  His responses to Dr Arthur are consistent with such an understanding, notwithstanding a reluctance to engage with Dr Arthur. 

4. I am also satisfied the defendant is fit to plead.  He understands the nature of court proceedings, has an ability to challenge jurors and understand the evidence and an ability to decide what defence to offer.  Any difficulties the defendant has in relation to giving instructions to counsel can be appropriately addressed by frequent breaks in proceedings and the trial judge taking appropriate steps to ensure questions are short, simple and expressed in words easily understood by the defendant.  These steps will also ensure the defendant is able to endure a trial with serious adverse consequences to his mental health unlikely.

5. In reaching this conclusion I found the advice of the assisting psychiatrists particularly helpful.  Each advised that with appropriate modifications to Court processes, the defendant was fit for trial.  That advice was in contrast to the equivocal nature of the opinions expressed by the reporting psychiatrists. None of the reporting psychiatrists came to a firm conclusion as to the defendant’s actual cognitive capacities. Importantly, both had common concerns about the disparity between the defendant’s functioning and his presentation.  That concern is significant when there is good reason to question the genuineness of the defendant’s willingness to engage in the assessment process.

Orders

1. I order:

2. At the time of each of the alleged offences, the subject of the reference, the defendant was not suffering from unsoundness of mind as defined in the schedule to the Mental Health Act 2000 (Qld).

3. In respect of each of the alleged offences, the defendant is fit for trial.

4. Each of the alleged offences is to proceed according to law.

5. Copies of the reports are to be provided to the parties in the criminal proceedings.