Re VMJ

[2010] QMHC 34

MENTAL HEALTH COURT

CITATION:

Re VMJ [2010] QMHC 34

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF VMJ

PROCEEDING NO:

0142/09

DELIVERED ON:

8 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2010

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr Lawrence

FINDINGS AND ORDERS:

[1] That 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]     That the defendant is not fit for trial and the unfitness is of a permanent nature;

[3]     That the defendant be detained to the West Moreton South Burnett Authorised Mental Health Service;

[4]     Approval of limited community treatment to commence immediately at the discretion of the treating psychiatrist on the conditions contained in the amended submission of the Director of Mental Health.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with seven counts of indecent treatment of a child and one count of attempted rape – where defendant makes a blanket denial to all offences – where dispute of fact arises – where evidence the defendant has intellectual disability, autism spectrum disorder and epilepsy – where evidence the defendant has language deficits, concrete thinking patterns and poor working memory – whether the defendant is fit for trial – whether a Forensic Order should be made.

COUNSEL:

J Briggs for the defendant
J Tate for the Director of Mental Health
A Lossberg for the Director of Public Prosecutions

SOLICITORS:

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

Ann LYONS J:

1. This is a reference by the legal representatives for the defendant VMJ. The defendant is charged with seven counts of indecent treatment of a child and one count of attempted rape. All of those offences occurred between 30 April 2008 and 1 June 2008. He was 17 years old at the time of the offences.

1. The factual background of those offences is that the defendant’s brother told the defendant’s mother that there was pornography on his computer.  She found files including bestiality, incest and child rape. It is alleged that he showed those indecent films to children under the age of 16. It is also alleged that he attempted to rape his brother who was 13 years old at the time, as well as attempting to procure a child to commit an indecent act. In total there are three counts of exposing a child under 16 to an indecent film, two counts of indecent treatment of a child under 16, and one count of exposing a child under 16 to an indecent act. There is a further charge under the Crimes Act 1914 (Cth) of using a carriage service for child pornography, but that is not subject to a reference to this court.

1. Two psychiatrists have provided reports namely, Dr Peter Fama and Dr Michael Beech.  Dr Fama’s report is dated 3 March 2010 and Dr Michael Beech has provided reports dated 24 March 2009 and 30 March 2010.  A clinical neuropsychologist, Dr Shelley Keane, has also provided a report dated 11 September 2009.

Dispute of Facts

1. Dr Peter Fama states that as the defendant simply denies all of the alleged offences the Court needs to consider the matter under s 268 of the Mental Health Act 2000 (Qld) (the Act). On interview with Dr Fama, the defendant described the criminal charges as follows;

“five, I think … one is the rape of my brother … and sexual assault, which I didn’t do. His friend, sexual assault. And there was a third, pornography PC stuff …in 2008”.

1. Dr Fama also considers that the defendant’s dispute does not arise as a result of his mental condition. Dr Farma concludes that even if the facts are not in dispute, there is no history to support the presence at the time of the offences of a mental disease, or a natural mental infirmity and s 27 of the Criminal Code 1899 (Qld) (the Code) would not apply in any event.

1. In his report Dr Beech also stated that in the account given to him by the defendant, he denied the offences; he denied that he deliberately exposed the boys to pornography and said that the boy saw it accidentally as he walked past the computer. He also expressly denied at any time the indecent acts. He specifically denied at any stage that he had indecently assaulted [A] and when pressed he said that the boy had made up the allegations. When asked further about this, Dr Beech said

“[VMJ] denied that he was not admitting to any allegations because of embarrassment or fear. He said simply that the events did not happen. In addition he said he had never attempted to indecently assault his younger brother.”

1. Similarly in her report to the court, Dr Shelley Keane, a clinical neuro psychologist, stated that the defendant denied the rape offence.

1. Accordingly on the basis of the denial of the allegations I am satisfied that a dispute of facts exists and pursuant to ss 267 and 268 of the Act the Court could not proceed to a determination of the reference in relation to the question of unsoundness of mind.

Fitness for trial

1. The next issue that therefore needs to be determined is the question as to whether the defendant is fit for trial. Dr Keane, in her extensive report, examined this issue in some detail and concluded that she did not consider that the defendant was fit for trial.  She considered that this was a permanent condition.

1. Dr Keane examined this question in the following terms:

“5.12Current assessment indicates that [VMJ] thinks in a concrete or literal fashion. Concrete thinkers fail to appreciate the abstract or symbolic qualities of ideas, of comments, or of things. They are drawn to the most immediate, salient, and tangible features of the environment. They interpret language literally and have trouble understanding metaphors, subtlety, and double meanings; and fail to appreciate humour that looks beyond the literal meaning. Concrete thinkers have difficulty thinking beyond their current thought. They may be unable to abandon failed solutions to a problems, [sic] for example, pushing on a door that opens by pulling, then leaving frustrated. Concrete thinkers often cannot see beyond their perspective to recognise other people [sic] points of view and needs. Another aspect of concreteness is the tendency to be stimulus-bound. Concrete thinkers may be drawn by a nearby object and may try to use it or respond to it regardless of the circumstances. An example of concrete thinking style, [VMJ] was unable to tell me what type of epilepsy he experiences because he is not conscious. He was also unable to tell me about the processes of court because he has never been there before.

5.13In terms of the charges, [VMJ] said that he didn't realise that it was wrong to expose his younger brother to pornography, He said that he had been introduced to pornography by young men who lived in his street, I agree with Dr Beech in that in view of his limited intellect and Autistic Disorder with the concomitant impairment in social skills, that he was deprived of the capacity to know that the alleged actions were wrong in a serious way up until the point when the police were actually involved in the investigation.

5.14Although [VMJ] may not know guilty from not guilty, he is able to give an account of the charge relating to exposing a child to pornography and possessing pornography. However, I doubt that [VMJ] could give an account for each charge because he wouldn't be able to remember the derail of each offence that he has been charged with. That is, because of the deficits arising from Intellectual Impairment and Memory deficits, [VMJ] will have only a piecemeal recollection of the past events that comprise the charges.

5.15[VMJ] is able to say that he didn't rape his brother, that he didn't put his ‘doodle’ in his brother's mouth. Again, because of the deficits elicited in testing, I doubt that [VMJ] could give a complete account of the events as they occurred.

5.16I agree with Dr Beech in that although [VMJ] has limited understanding of court processes he has in a general way an understanding that there is an inquiry into the allegations.

5.17I also agree with Dr Beech in that, in my opinion, [VMJ] is not fit for trial. In my opinion, [VMJ] will not be able to follow a trial. I think that he would not be able to suitably instruct counsel during the course of a trial about how [to] challenge evidence that may be given against him in court. That, because of his deficits in verbal functioning, as well as concrete thinking, he would not [be] able to follow the nuances of evidence as it is given. In addition, deficits in memory functioning indicate that he would have difficulty following and remembering evidence as it is given.”

1. In her evidence to the court, Dr Keane explained that the defendant has an inability to engage in abstract reasoning and that it is difficult for him to understand a question because he cannot generalise across from one situation to another. Dr Keane stated that this is part of his concrete thinking and part of autism spectrum disorder. Accordingly, Dr Keane has serious concerns about the defendant’s capacity to give evidence. She considers he would answer in a literal perspective and would not articulate the real issues. In her view the defendant would be unable to give an account himself as he would answer in a concrete fashion and his memory would also pose difficulties for him.  His memory is only piecemeal as he has a memory of certain parts of the incident, but not all of the parts of the incident.

1. Dr Keane was also of the view that his epilepsy also has a significant impact on him because each episode of epilepsy disrupts the memory which has been laid down. In effect, this means it has a double impact. Not only does he not remember well, but every time he has a seizure, the seizure impacts on the memory that he has already laid down. Dr Keane considers that this deficit would impact on his ability to challenge other person’s memories of the incident. Dr Keane believes that he cannot comment relevantly on the evidence as it is presented. Dr Keane does not consider that he could do this with assistance.

1. In terms of the criteria laid down in the decision of R v M[1], Dr Keane considers that the defendant may have a reasonable grasp of the evidence but the real concern is about his ability to give a response and instruct counsel as the trial evolves. She considers that he cannot hold concepts or things in his memory, and that his overall memory of the evidence would be lost and he would not understand the effect of the evidence as has been given.

   [1] [2002] QCA 464

1. Dr Keane believes that the defendant cannot generalise from one conversation to the next and overall her opinion is that he is not in a position to be tried without a detriment to him. In particular, she considers that the defendant is unable to grasp the strength of the evidence against him and he would struggle to understand the advice of his counsel. Dr Keane considered that he would not be able to break up the charges as single incidents but rather would roll them all into one. She also considered that if pressed he would try and give an answer but this may not be an answer based on his memory. Dr Keane believed that if the defendant was presented with details of the charges that were alleged against him in cross examination, he would have difficulty in responding. She did not believe he could respond to a question on a matter of detail. Dr Keane stated that in her interview with him, the defendant could not recall any information after a 30 minute delay and she considered this was a significant problem.

1. Similarly, Dr Beech, in his update report dated 30 March 2010, also stated:

“I remain of the opinion [VMJ] is not fit for trial. I do not believe, even with patient guidance of his counsel that he would be able to follow proceedings in a trial and properly comprehend the nature of evidence given against him and to instruct his counsel in this matter.

It is my opinion that in order to do this properly would require more than simple patient guidance and given the nature of the charges that he disputes it would seem to me very important that [VMJ] be able to understand what is going on and speak to his counsel and instruct them as it is happening.

I believe that this arises from his limited intellectual function in particular his limited memory function, his limited abstract reasoning and general understanding function, and his very limited general knowledge.

In my opinion these are permanent disabilities. I accept [VMJ] is able to learn new information; I do not believe that his would be able to be used in a dynamic sense during the course of a trial.

It is though not a simple matter and indeed I would see it as ‘borderline’. It is possible, although I think it would not be practical, for court matters to be arranged so that [VMJ] could follow a trial and instruct during it. I am not sure if this is feasible, but for example, if witness testimony were to be videotaped and provided to his counsel to consult with [VMJ] he might then be able to instruct his counsel so that witnesses could be later cross-examined at trial.”

1. In his evidence to the court, Dr Beech explained that the defendant had a complex clinical presentation with poor interpersonal relationships and significant language difficulties. Dr Beech considered that the defendant had a global language disorder. He explained that the defendant could not understand a proverb or explain it in any way. When he gave him the proverb “crying over spilt milk” to explain, the defendant translated it literally as “crying above the spilt milk”.

1. Dr Beech agreed that the defendant would not give detail of the individual charges but just a piecemeal account.  He stated that he simply denied all the physical assaults. He considered that whilst the defendant has a general understanding of the allegations against him, he couldn’t indicate a response which sets out his own opinions about what has happened. Dr Beech also considered the defendant has a restricted ability to understand counsel’s advice, particularly in relation to a plea bargain. He does not think he would understand that type of advice and counsel would need to spend a significant amount of time explaining it to him. He considered that counsel would probably need to engage a speech pathologist to help explain the concept given his concrete thinking. Dr Beech also considered the defendant would have great difficulty with new information. Dr Beech explained that the defendant could not give him an account of a movie he had seen because he cannot access that memory.

1. On balance, in his oral evidence to the Court Dr Beech considered the defendant  was unfit, mainly because his working memory is such a problem. In particular, if a witness gave more information he would have problems with the dynamic evidence as he would not be able to respond. Dr Beech indicated that it was not that the defendant was not capable of learning as he may well be able to do a Certificate II in Computers. He can learn the process; he can acquire technical skills but he has no ability to access any creative thinking.

1. In terms of future management, Dr Beech considered a Forensic Order was required and stated that there are programs that could educate the defendant about actions and consequences.  He believed that Disability Services Queensland has some particular programs in relation to sexual offending. He considers that a condition that the defendant undergo counselling is important.  Similarly there should be a condition that  the defendant should not have unsupervised contact with anyone under 16. 

1. Dr Fama, in his report dated 3 March 2010, stated that he found no signs of active mental illness. However, he concluded that the defendant has a known history of autism, epilepsy and some degree of intellectual impairment. Dr Farma noted that no detailed history of the defendant’s epilepsy was available but the defendant could recount that he has had unpredictable, sudden blackouts. It would appear that the defendant  has not had a seizure in 2010 and the last one would seem to have been in November 2009.  Dr Farma concluded:

“[VMJ] has an adequate grasp of the nature of the charges that he faces, and of the meaning of a plea of guilty or not guilty.
I append to this report his comments upon the courtroom participants' sketch.
[VMJ’s] knowledge of courtroom proceedings has improved since he saw Dr Beech nearly a year ago. So he is capable of learning.
He now clearly understands the meaning of a plea of guilty or not guilty. He knows the functions of a witness, and of a jury. He also understands that defence counsel would try to get a verdict of not guilty and to that end would question witnesses.
[VMJ] can tell his story - simply one of blanket denial of wrongdoing - to his lawyer. He can offer nothing else to help his defence. He cannot suggest why [A] and [B] have told lies about him. I believe that [VMJ] could comment relevantly upon evidence as he would hear it presented in court, if only to declare much of it as simply wrong.
It seems to me that [VMJ] is fit to take part in the trial process. If he pleads not guilty he will, however, need patient guidance and instruction by counsel and by his support worker, to ensure that he understands just what is going on at each stage.
There is no history to suggest that [VMJ] undergoing trial might thereby occasion any significant decline in his mental condition.”

The views of the assisting psychiatrists

1. Dr Lawrence noted that it was clear that the defendant has autism spectrum disorder and epilepsy. Dr Lawrence considered that he presented as a marginal case because while the evidence suggests mild mental retardation and low abilities he is however capable of some learning and training. Dr Lawrence noted the nature of the blanket denials given by the defendant and considered that given his concrete thinking, cross-examination of him in a dynamic setting would be problematic. In all of the circumstances she considered a finding of unfitness was the appropriate finding.

1. Dr Lawrence was also concerned that the defendant’s future management would be problematic because he has been charged with serious sexual offences.  Dr Lawrence said the defendant’s future was concerning and she would be keen to ensure that he engaged in some of the programs referred to by Dr Beech.  Dr Lawrence also notes that the defendant has seen Dr Wong and she considers that that should continue. Dr Lawrence considered that in view of the seriousness of the offences, a Forensic Order was required and she would require that the Forensic Order contained conditions requiring the defendant to involve himself in a program for sexual offences.

1. Dr McVie also noted the defendant’s intellectual disability, his autism spectrum disorder and his epilepsy. She considered he had significant language deficits and a poor working memory. In relation to the reports of Dr Beech and Dr Fama, Dr McVie would prefer the opinions of Dr Beech as his clinical assessment was supported by Dr Keane’s neuro psychological assessments.  Dr Mc Vie stated that she would support a finding of unfitness for trial which was permanent.

1. In terms of future management, Dr McVie had concerns in relation to his management. She also considers that a Forensic Order is required, despite the fact that the defendant does not have a mental illness. She considers however that he needs a thorough assessment and there needs to be a program designed to cope with sexual deviancy.

Conclusion

1. The critical issues in relation to the question of fitness for trial were outlined by the Chief Justice in R v M[2]:

“[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 courts should and do bear.”

[2][2002] QCA 464

1. In my view there is clear evidence that the defendant would have great difficulty in giving an account of himself at trial.  I consider that he would have great difficulty in understanding questions put to him in cross examination as well as difficulty in being able to respond to new information as it was given.  Accordingly he would have difficulty in being able to apprise counsel of his own position or understand counsel’s advise.

1. Accordingly I consider that the defendant is unfit for trial and that this unfitness is permanent.

1. I consider that a Forensic Order is required given the serious charges the defendant was alleged to have committed.  It is also important that he be thoroughly assessed and that he participate in specific programs to address his sexual deviancy. I also consider that there should be a condition that he not have any unsupervised contact with children under sixteen.