Re WLW

[2004] QMHC 6

MENTAL HEALTH COURT

CITATION:

Re WLW [2004] QMHC 006

PARTIES:

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

PROCEEDING NO:

0222 of 2003

DELIVERED ON:

27 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2004

JUDGE:

Wilson J

ASSISTING PSYCHIATRISTS:

Dr D A Grant
Dr J F Wood

FINDINGS:

1)   That there is reasonable doubt that the defendant committed the offences and that that doubt is not one arising solely from his mental condition;

2)   That the defendant is unfit for trial;

3)   That the defendant’s unfitness for trial is of a permanent nature.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – Fitness for Trial - where the defendant is charged with two counts of indecent dealing – where there is reasonable doubt the defendant committed the offences – where the Court does not make a finding as to soundness of mind at the time of the offences – where the defendant suffers from mental retardation – where the defendant’s full scale IQ is 61 – where the issue for the Court is the defendant’s ability to properly instruct his counsel and participate in his trial – where there is conflicting expert psychiatric opinion about the defendant’s fitness for trial – where the defendant is highly suggestible and likely to agree with any proposition put to him – where Court declined to make a forensic order – where the defendant does not have a mental illness – where detention in Authorised Mental Health Service inappropriate.

Mental Health Act 2000 s 268(2); 270(1)(b), schedule 2.

Kesavarajah v R (1994) 181 CLR 230 applied
Ngatayi v R (1980) 147 CLR 1 referred to
R v M [2002] QCA 464 followed
R v Presser [1958] VR 45 applied
R v Pritchard (1836) 7 Car & P 303; 173 ER 135 referred to

COUNSEL:

C Morgan for the defendant
J Tate for the Director of Mental Health
P Feeney for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
The Crown Solicitor for the Director of Mental Health
The Director of Public Prosecutions

1. WILSON J:  WLW [“the defendant”] has been charged with two counts of indecently dealing with a 9 year old girl on 6 October 2002. The matter of his mental condition in relation to the alleged offences was referred to this Court by his legal representative.

1. According to the police brief, the complainant alleges that she was sitting near the defendant when he placed his hand under her bike shorts but on the outside of her underpants, touched her on the anus and tried to push his finger into her anus. She alleges that the defendant then placed her in front of him between his legs and placed his hand down the front of her bike pants but outside her underpants, touched her on the vagina and tried to push his finger into her vagina on the outside of her underpants. The defendant denies touching the child sexually.

1. I am satisfied that there is reasonable doubt the defendant committed the offences and that that doubt is not one arising solely from his mental condition. The criminal proceedings ought therefore be continued according to law, unless the defendant is unfit for trial: Mental Health Act 2000 s 268(2); 270(1)(b).

1. The defendant was born on […] 1976. He suffers from mild mental retardation, having a full scale IQ of 61. His full scale IQ is exceeded by more than 99% of the general population. According to Ms Robyn Murray, a psychologist who performed psychometric testing on him -

“[The defendant] suffers from Mild Mental Retardation (Full Scale IQ = 61) which has impaired his communication abilities, his social interactions with others, and academic functioning.  This condition has been present since birth and is permanent.  Because of his limited intellectual functioning, [the defendant] requires some degree of support in relation to everyday living activities (e.g. handling his finances, shopping and preparing meals) and is currently lives [sic] with his mother.  His communication skills are poor and he is functionally illiterate.  While he is in paid employment, this appears to be in a low level unskilled job where he performs routine, well-learned tasks.”

1. The expression "fit for trial" is defined in schedule 2 of the Mental Health Act as:

“... 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.”

1. In R v M [2002] QCA 464 the Court of Appeal approved the application of the minimum standards expounded in R v Pritchard (1836) 7 Car & P 303 at 304; 173 ER 135 at 135; applied in R v Presser [1958] VR 45 at 48 and approved in Kesavarajah v R (1994) 181 CLR 230 at 243 in determining whether someone can be tried without unfairness or injustice to the question of unfitness for trial within the meaning of the Mental Health Act:

“...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.”

(See R v Presser [1958] VR 45 at 48)

In this case it is the defendant's ability properly to instruct his counsel and to participate in his trial which is in issue.

1. The Court had the benefit of written reports and oral testimony from two psychiatrists - Dr William Kingswell and Dr Peter Fama.

1. Dr Kingswell examined the defendant in July 2003 and again (for about 30 - 45 minutes) on the morning of the hearing. He said that the defendant had given three different accounts of the facts as to how close the complainant had come to him and where she had sat. He said that he had tried to discuss these with the defendant, and that the defendant had agreed with all three of them. In Dr Kingswell's opinion the defendant does not have the capacity to judge the impact on a jury of his giving three separate accounts; he does not have the capacity to select a defence and to rely on it; he is suggestible and will agree with any proposition put to him. Dr Kingswell attributed this to the defendant's low intellect and high  level of anxiety. He said that with or without anxiety he would still be very impaired.

1. Dr Fama considered that the defendant would have difficulty in instructing his counsel and agreed that he would be suggestible. He expressed particular concern at the defendant's ability to deal with leading questions in cross-examination (and thought that it would be unfair to allow the defendant to be questioned in that way) , and conceded that the combination of  mental retardation and a high level of anxiety would lead to greater variation and unreliability in the defendant's evidence than he had previously thought. Ultimately he thought the defendant would be able to instruct his counsel and to participate in his trial if sufficient allowances for his disability were made (including the absence of leading questions), but conceded that it is a marginal case.

1. As the Court of Appeal recognised in R v M, fitness for trial should be assessed in the recognition that a defendant is represented by counsel, and that, where possible, court proceedings can and should be structured to accommodate disabilities. However, if this defendant elected to give evidence, it would be the duty of the prosecutor to put to him his or her instructions, including the inconsistent accounts. I very much doubt that a trial judge could refuse to allow the use of leading questions in cross-examination. On the evidence which is before me, I am persuaded that the defendant would most probably agree with every proposition put to him.

1. While  a person cannot "escape trial simply by showing that he is of low intellect" (Ngatayi v R (1980) 147 CLR 1 at 8), it is necessary to consider the level of his intellectual impairment and how that impairment is manifest in the functioning of the particular defendant. The clinical classification of this defendant's impairment as "mild" does not convey the extent of his disability to a lay person. His full scale IQ is below the first percentile. Of particular concern in his case is his suggestibility, that is his willingness to agree with any proposition put to him. In the circumstances I am satisfied on the balance of probabilities that he could not adequately instruct his counsel or otherwise meaningfully participate in his trial.

1. I find that the defendant is unfit for trial.

1. Because the unfitness arises from mental retardation, it is of a permanent nature.

1. The offences with which the defendant has been charged of serious, and there is a legitimate concern that the public be protected from any such conduct in the future. However, the defendant does not have a mental illness, and so does not have treatment needs which might be addressed in an authorised mental health service. For this reason, I decline to make a forensic order.