Re St

[2007] QMHC 31

MENTAL HEALTH COURT

CITATION:

Re ST [2007] QMHC 31

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF ST

PROCEEDING:

No 0080 of 2006

DELIVERED ON:

23 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2007

JUDGE:

Philippides J

ASSISTING
 PSYCHIATRISTS:

Dr J F Wood
Dr J M Lawrence

FINDINGS AND ORDERS:

1. There is a reasonable doubt within the meaning of s 268 of the Mental Health Act 2000 (Qld) that the defendant committed the alleged offences.

2.    The defendant is fit for trial.

3.    Proceedings against the defendant are to continue according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with numerous counts of indecent dealing with a child under 16 with aggravation, distributing obscene publications, rape, participation in prostitution with aggravation, procuring prostitution of a young person, and sexual relationship with a child with aggravation – where there is a reasonable doubt as to the commission of the alleged offences due to a dispute of fact – where psychometric testing indicated that the defendant falls within the higher level of the mild category of intellectual disability – whether the defendant is fit for trial

Mental Health Act 2000 (Qld), Schedule 2
Evidence Act1977 (Qld), s21A

R v. Presser (1958) VR 45

COUNSEL:

Mr J R Hunter for the defendant
Mr W Isdale for the Director of Mental Health
Mr S P Vasta for The Director of Public Prosecutions

SOLICITORS:

McMillan Criminal Lawyers for the defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)

1. PHILIPPIDES J:  The defendant, a woman of 40 years, is charged with 84 counts of indecent dealing with a child under 16 with aggravation, 13 counts of distributing obscene publications, five counts of rape, one count of participation in prostitution with aggravation, one count of procuring prostitution of a young person, and one count of sexual relationship with a child with aggravation.  All the offences are alleged to have taken place between 1 January 2004 and 18 October 2004.  The issue before the Court is that of the mental condition of the defendant at the time of the alleged offences.

1. The material before the Court indicates that there are substantial disputes concerning the facts of the alleged offences.  In those circumstances it is not appropriate for this Court to consider the issue of unsoundness of mind.

1. The issue that does arise for consideration, however, is that of the defendant's fitness for trial, as that is understood within the definition in Schedule 2 of the Mental Health Act 2000.  That is, whether the defendant is fit to plead at trial, to instruct counsel, and to endure the trial without serious adverse consequences to her mental condition.

1. The classic formulation as to the test for determining fitness for trial is that stated in the decision of R v. Presser (1958) VR 45. The minimum requirement is that the defendant has the ability to understand the nature of the charges, plead to the charges and exercise her right of challenge, understand the nature of the proceedings, namely that it is an inquiry as to whether the accused committed the offences alleged, follow the course of proceedings, understand the substantial effect of evidence, and make a defence or answer to the charges. It is, of course, appropriate that a reasonable and commonsense approach is taken to the application of that criteria, as the authorities indicate.

1. The Court has the benefit of reports compiled by two psychologists, namely Dr Douglas and Dr Coyle.  They administered psychometric testing, although it appears that in relation to one of the tests administered by Dr Coyle an incomplete administration was made.  Nevertheless, there is, as was indicated by Dr Wood, an area of agreement in relation to the testing.

1. The report of Dr Douglas indicated that the defendant has a full-scale IQ of 62; a performance IQ of 70, and a verbal IQ of 61.  As Dr Wood indicated, leaving aside the issue of adaptive reasoning, it would appear from the psychometric testing that the defendant falls within the mild category of intellectual disability, and that is at the higher level of mild, moving into a possibly borderline intellectual disability.

1. I note as a matter of importance that Dr Douglas also conducted testing to measure the cognitive effort that was made by the defendant in relation to the various tests that were administered.  In Dr Douglas' view that evaluation indicated that there was an element of exaggeration of the defendant's dysfunction.  Dr Douglas therefore suggested that the aspect of lack of effort had a flow-on consequence with respect to the issue of reliability of the defendant's results for the various psychometric testing.  She noted that a competency test administered indicated that the defendant was able to perform tasks of daily living to an extent that suggested that they were matters which were fairly easy for her to accomplish.

1. Dr Reddan and Dr Morris were the two psychiatrists who provided reports to the Court.  The area where they largely disagreed concerned the matter of the issue of adaptive functioning.

1. Dr Reddan discussed the relevance of the defendant's IQ measurements but emphasised that the matter of adaptive reasoning and functioning was also of significance.  She referred to the DSM-IV, which states:

"It is possible to diagnose mental retardation in individuals with IQs between 70 and 75 who exhibit significant deficits in adaptive behaviour.  Conversely mental retardation would not be diagnosed in an individual with an IQ lower than 70 if there are no significant deficits or impairments in adaptive functioning."

1. In the defendant's case Dr Reddan observed that she was able to work in open employment, to obtain a driver's licence and to drive to various destinations on a habitual basis.  She was able to use a mobile phone, to make calls, to send and receive text messages.  She was also able, in her assessment, to perform certain basic receptionist duties.  Dr Reddan, therefore, concluded that the defendant did not have a disability of such an extent or nature as to render her unfit for trial.

1. I note that, while Dr Reddan accepted that the defendant was somewhat suggestible, she pointed out that she was not so suggestible that she merely agreed with everything that was put to her, for example, by the police, that she was able to challenge accounts, that she was able to offer an alternative explanation, for example, for her conduct, and indeed the defendant has offered various explanations and various accounts.  She concluded that the defendant understood the nature of the charges, was able to plead, was able to provide an account and did not consider that any of the Presser criteria were not met.  Dr Reddan therefore concluded that, while the defendant would require some assistance at trial, perhaps significant assistance, she was nevertheless fit for trial.

1. Dr Morris disputed the conclusion reached by Dr Reddan.  He considered that the defendant is permanently unfit for trial. In particular, he considered that the defendant did not have an understanding of all the charges.  However, I note that Dr Morris' report indicated that the defendant had an understanding which is contradicted by aspects of his oral evidence.  Dr Morris also noted in his report that the defendant appreciated that she could be punished for the offences if proven guilty.

1. Dr Morris also considered that the defendant had little understanding of the adversarial nature of the legal process. That is not the impression that is indicated by the questions and answers that are recorded in Dr Coyle's report and it is not the view favoured by the assisting psychiatrists.  I note that Dr Morris considered that the defendant had no appreciation, for example, of the requirement that the jury be impartial.  However, by contrast, when Dr Coyle explained the need for impartiality in terms of a need for fairness the defendant indicated that she did understand that.  Dr Morris also took issue with Dr Reddan's views as to whether the defendant was able to give a consistent, rational and relevant account of the facts surrounding the alleged offences and counsel for the defendant placed some weight on that matter.

1. On the whole of the evidence before the Court I prefer the opinion of Dr Reddan in relation to the matter of fitness for trial. I am satisfied that the Presser criteria are satisfied, although it will, of course, be appropriate at a trial, given the psychometric evidence before the Court, that the defendant is afforded some assistance. And it may be that a trial Judge will need to give consideration to the question of the defendant being granted the status of a special witness under section 21A of the Evidence Act1977, but on the issue of fitness for trial, I am satisfied and find that the defendant is fit for trial.  The proceedings will therefore continue according to law.