The State of Western Australia v JLN - [2019] WADC 107

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JLN [2019] WADC 107
CORAM:   PRIOR DCJ
HEARD:   18 JUNE 2019
DELIVERED          :   2 AUGUST 2019
FILE NO/S:   IND 1292 of 2017
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
JLN

Catchwords:

Criminal law - Criminal procedure - Fitness to stand trial - Turns on own facts

Legislation:

Criminal Code (WA), s 320
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 3, s 8, s 9, s 10, s 12, s 19
Criminal Procedure Act 2004 (WA), s 118

Result:

Accused declared mentally unfit to stand trial

Representation:

Counsel:

The State of Western Australia	:	Mr N R Cogin
Accused	:	Ms E A Hamilton

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	T & L Lawyers

Case(s) referred to in decision(s):

Craig v The Queen [2018] 92 ALJR 390
Eastman v The Queen (2000) 172 ALR 39
Jeffrey v The State of Western Australia [2018] WASCA 219
R v Dunne [2001] WASC 26
R v Ngatayi (1980) 147 CLR 1
R v Presser [1958] VR 45
Shenton v The State of Western Australia [2005] WASCA 118
The State of Western Australia v Huggins [2017] WASCA 243

PRIOR DCJ:

Introduction

The accused is charged on indictment 1292 of 2017 dated 30 November 2017 with one offence of indecent dealing with a child under the age of 13 and two offences of sexually penetrating a child under the age of 13 (the indictment).[1]
[1] Section 320(2) and s 320(4) of the Criminal Code.
The offences are alleged to involve the same child and occurred on two separate days between 9 December 2015 and 1 March 2016. The offences are alleged to have occurred at the accused's house in Moora. The accused is the child's uncle.
The particulars of the offences are the accused touched or penetrated the child's vagina with his finger. The child was aged 8 years old when the offences took place. The child was visiting the accused with her mother. When the offences occurred the child and the accused were in the lounge room of the house and the child's mother was in other parts of the house.[2]
[2] Police statement of material facts dated 2 February 2017.
The accused is presently in custody and has been since April 2018.
The indictment is presently listed for trial on 9 - 10 September 2019 before a judge alone without a jury.[3]
[3] An order pursuant to s 118 of the Criminal Procedure Act2004 (WA) was made by Scott DCJ on 29 March 2019.
The child's evidence was pre‑recorded at a special hearing on 11 January 2018. The child also participated in a visually recorded interview on 16 January 2017.
This matter was listed for a hearing to determine whether the accused was not mentally fit to stand trial for the charges listed on the indictment. The relevant legislation for the court to consider whether an accused is not mentally fit to stand trial is pt 3 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act). The Act provides that an accused is presumed to be mentally fit to stand trial until the contrary is found.[4]
[4] Section 10(1) of the Act.
At the hearing on 18 June 2019 I heard evidence from two expert witnesses and submissions from counsel. Both parties also filed written submissions. I reserved my decision. I advised counsel that if I came to a conclusion the accused was not mentally fit to stand trial then I would hear further from the parties as to whether a release order or custody order should be made pursuant to s 19(4) of the Act.

Legal principles

The procedure for an application of this type is summarised by Hall J in The State of Western Australia v Huggins [2017] WASCA 243 [4] – [15].
'Mental impairment' is defined by s 8 to mean 'intellectual disability, mental illness, brain damage or senility'. 'Mental illness' means:
[A]n underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.
The mere existence of a mental impairment does not of itself prevent a person from being brought to trial.[5]
[5] Eastman v The Queen (2000) 172 ALR 39 [24] – [27].
Section 9 of the Act defines the circumstances in which an accused is not mentally fit to stand trial for an offence. They are that the accused, because of mental impairment is:
(a)unable to understand the nature of the charge; or
(b)unable to understand the requirement to plead to the charge or the effect of a plea; or
(c)unable to understand the purpose of a trial; or
(d)unable to understand or exercise the right to challenge jurors; or
(e)unable to follow the course of the trial; or
(f)unable to understand the substantial effect of evidence presented by the prosecution in the trial; or
(g)unable to properly defend the charge.[6]
[6] The Act generally adopts the common law principles described by Smith J in R v Presser [1958] VR 45 [48]; R v Dunne [2001] WASC 26 [10] (Miller J).
It should be noted the sub-paragraphs of s 9 of the Act are disjunctive, and it is only necessary that one of the sub-paragraphs apply to satisfy the test defined in s 9 of the Act. The focus of s 9 of the Act is on the accused's comprehension of the proceedings.[7]
[7] Shenton v The State of Western Australia [2005] WASCA 118 [42] (McLure JA).
In R v Dunne Miller J observed in relation to s 9(e), s 9(f) and s 9(g) of the Act at [14]:
… It is the ability of the accused to follow the course of the trial, understand the substantial effect of the evidence presented by the prosecution and/or properly defend the charge assisted by counsel which are the relevant questions. The accused does not have to understand the evidence in detail, nor does she have to understand the law and its application to the facts of the case.
The criteria in s 9(d) of the Act is not relevant in this matter as an order has already been made that a trial of the offences listed on the indictment is to be before a judge alone without a jury.
Section 12(1) of the Act states the following:
(1)The question of whether an accused is not mentally fit to stand trial is to be decided by the presiding judicial officer on the balance of probabilities after inquiring into the question and informing himself or herself in any way the judicial officer thinks fit.
Section 10(2) of the Act provides that an accused found to be not mentally fit to stand trial is presumed to remain not mentally fit until the contrary is found.
Section 19(1) of the Act provides that if the judge who decides that an accused is not mentally fit to stand trial and is satisfied that the accused will not become mentally fit to stand trial within six months after that finding, the judge must make an order under s 19(4) of the Act.
An order under s 19(4) of the Act is an order quashing the indictment and either releasing the accused or making a custody order, subject to s 19(5) of the Act.
The test set out in s 9 of the Act needs to be applied in a 'reasonable and common sense fashion'.[8]
[8] R v Ngatayi (1980) 147 CLR 1 [8] (Gibbs, Mason & Wilson JJ).

General summary of evidence

At the hearing before the court on 18 June 2019 I viewed the DVD of the accused's record of interview which took place at Moora Police Station on 2 February 2017 (the interview).
When the interview was played to the court two forensic psychiatrists, Dr Mark Hall and Dr Peter Wynn Owen were present in court. They were each also provided with a copy of the transcript of the interview. Both psychiatrists gave evidence at the hearing. In addition, the following materials were received as evidence:
(a)The DVD of the interview which was of 36 minutes duration.
(b)A report of Dr Hall dated 21 May 2018. This report was provided as a result of an order by the Court on 11 January 2018.
(c)A report of Dr Hall dated 19 March 2019. This report was provided as a result of an order made by the court on 29 January 2019 when an updated report was requested.
(d)A report of Dr Wynn Owen dated 24 April 2018. When Dr Wynn Owen prepared this report he was under the understanding that the report had been requested for sentencing purposes in the District Court and not as to the question as to whether the accused was not mentally fit to stand trial.
(e)An affidavit of Ms Yvonne Brown sworn 29 October 2018. Ms Brown is a manager at Teem Treasure, an organisation funded by the Disability Services Commission to provide services to people with intellectual disabilities.
(f)The prosecution brief which comprised of 80 pages including the transcript of the interview.
Both parties accepted that the material contained in Ms Brown's affidavit was not relevant for the question I was to decide as to whether the accused was not mentally fit to stand trial. The affidavit was only relevant to the question if it was considered the accused was not mentally fit to stand trial whether I should make an order that the accused be released from custody or in the alternative be subject to a custody order pursuant to the provisions of s 19(5) of the Act.
The positions of both parties was that they accepted that both psychiatrists who had provided reports and gave evidence at the hearing before me on 18 June 2019 were appropriately qualified to give their opinion upon the issues that arise under the Act.
It was agreed by both parties that Dr Hall was the prime witness as he had assessed the accused twice in accordance with the criteria set out in s 9 of the Act.
Both psychiatrists were of the opinion that the accused suffered a 'mental illness' and a 'mental impairment' as defined under s 8 of the Act and these opinions were not challenged by either party.[9] I am therefore satisfied the accused suffers from a mental impairment as defined by the Act.
[9] State's outline of submissions dated 10 October 2018 par 30.
The issue in dispute was therefore whether the accused, on the evidence before the court, is not mentally fit to stand trial for the alleged offences because his mental impairment has met the criteria set out in s 9 of the Act.

The parties' positions

The State did not concede that the accused is not mentally fit to stand trial.
The State's position was based on the following:
(a)the limited contact the accused had with Dr Hall (interviews with the accused on 17 May 2018 and 7 March 2019);
(b)lack of detail in Dr Hall's reports as to cognitive testing of the accused and the explanations he provided to the accused as to the issues raised in s 9 of the Act meant that Dr Hall's conclusions should be treated with caution;
(c)findings made by Dr Wynn Owen in his report;
(d)the accused's extensive experience with the criminal justice system;
(e)the ability of counsel's assistance to overcome any mental impairment of the accused or difficulty in understanding the evidence or following the trial;
(f)the trial will be a relatively straight‑forward matter;
(g)the accused's presentation in his interview and the way in which he answered questions including:
(i)asking about bail;
(ii)understanding his right to silence;
(iii)his responses to the allegations when put to him which also demonstrated he has a long‑term memory;
(h)the accused's behaviour during the pre-recording on 11 January 2018;
(i)the discretionary factors that would allow a fair trial to the accused in particular if he elected to give evidence.
The State submits on the totality of the evidence the court ought not to be satisfied that the accused is mentally unfit to stand trial and a fairly robust approach should be taken when deciding the issue.
The accused submits that the accused is not mentally fit to stand trial as he meets some of the criteria of s 9 of the Act.
The accused relies upon the expert evidence of Dr Hall and Dr Wynn Owen in support of his submissions. The accused submits assistance by counsel is no substitute for cognitive ability.
As to the question for the accused to decide whether he gives evidence or not at his trial, that fundamental choice must ultimately be made by the accused and not counsel.[10] The accused's mental impairment as described by Dr Hall would mean he would be unable to make this choice.
[10] Jeffrey v The State of Western Australia [2018] WASCA 219 [179]; Craig v The Queen [2018] 92 ALJR 390 [26].
The accused submits some of his answers to questions in the interview are inconsistent and often contradictory. Also, some of his answers indicate he is confused. This behaviour in the interview indicates the accused's limits in cognitive ability.

Evidence relevant to the inquiry

Dr Hall in his report of 21 May 2018 refers to the accused suffering a closed head injury in a motor vehicle accident at the age of 16. In that accident the accused sustained damage to the frontal and temporal lobes of his brain resulting in impairment of memory and impulse control as well as right‑sided hemiparesis and hypertonia.
Dr Hall refers to the accused being referred to Graylands Hospital at the age of 17 suffering from florid psychosis in the context of solvent abuse and being treated with antipsychotic medication but took a long time to improve. For the following four to five years the accused had a number of re‑admissions to hospital due to relapse of psychosis characterised by paranoid delusions, gross disorganisation of thought and hallucinations consequent to poor compliance with medication and ongoing substance abuse.
Recently the accused had been receiving his depot medication from his general practitioner in Moora and was also prescribed oral antipsychotic medication.
Dr Hall's primary diagnosis was that the accused suffered from a psychotic disorder not otherwise specified and a secondary diagnosis of an unspecified intellectual disability.
Dr Hall described the accused's mental impairment as a long established history of mental disorder that has been variously characterised but predominately as mixed disturbance of personality and reality testing (psychosis) secondary to his early head injury. He has an intellectual disability characterised by impairments in short term memory impulse control, speed of processing and reasoning.
Dr Hall was of the opinion that the accused's psychotic symptoms could be justifiably deemed to be indicative of schizophrenia but have been historically attributed to his head injury although he considered the distinction to be academic because the accused required ongoing treatment with antipsychotic medication and without it he would likely relapse into paranoid delusions, gross disorganisation of thought and hallucinations.
Dr Hall described the accused's psychiatric condition reflecting an underlying pathological infirmity of mind that is of long duration and permanent.
When Dr Hall considered the criteria in s 9 of the Act in his report dated 21 May 2018 he considered that the accused would be unlikely to meet the criteria set out in s 9(e), s 9(f) and s 9(g) of the Act and in relation to the criteria s 9(a), s 9(b) and s 9(c) of the Act he was of the view he was doubtful he had the ability to understand the issues set out in those criteria or at best had diminished ability or partial and poor understanding.
Ultimately, Dr Hall was of the opinion that the accused was not mentally fit to stand trial as he lacks the ability to follow the course of the trial and properly defend the charges.
Dr Hall stated that the accused's mental unfitness to stand trial predominately stems from his cognitive impairment and that impairment was static and there was therefore no improvement expected or possible in the future and he was of the opinion that the accused will not become mentally fit to stand trial within the next six months of the date of his report.
When Dr Hall provided his second report dated 19 March 2019 in addition to the material he had available to him when he provided his first report on 21 May 2018, he re-interviewed the accused on 7 March 2019, had been provided with a copy of Dr Wynn Owen's report dated 24 April 2018 and the transcript of the interview.
Dr Hall's report of the 19 March 2019 is not significantly different from the report he provided to the court on 21 May 2018 other than his primary diagnosis in the report of 19 March 2019 was that the accused suffered from an intellectual disability – unspecified and there was a secondary diagnosis of psychotic disorder not otherwise specified.
In relation to Dr Hall's opinion as to the criteria for the accused to be not mentally fit to stand trial under s 9 of the Act, Dr Hall's opinion did not vary greatly from his previous opinion in his report of 21 May 2018 and from a psychiatric perspective he concluded that the accused remained not mentally fit to stand trial under the criteria in s 9 of the Act. Specifically he considered the accused lacked the ability to understand the effect of a plea, to understand or exercise his right to challenge jurors and to properly defend the charge. In relation to the criteria under s 9(b) and s 9(g) of the Act, Dr Hall stated the following in his report of 19 March 2019:
Overall, [the accused] impressed as having a poor ability to understand the effect of a plea. In addition, it is noted that [the accused] did not seem to understand that he had not yet been convicted or that the conviction was not an automatic outcome of the present interview.
… It is likely, however that to a far greater extent that someone without his intellectual disability, [the accused] would struggle to act in his own interests under cross‑examination due to being suggestible (regarding having inappropriately touched the victim) in the context of leading questions. In my opinion, his ability to properly defend the charge remains doubtful and at best equivocal, and the extent to which is truly able may only become apparent during the course of the trial itself.
Dr Hall was also of the view that the accused's mental unfitness to stand trial stemmed predominately from his long standing and permanent cognitive impairment, and any shifts in his cognitive performance relative to when he was assessed for the report Dr Hall provided on the 21 May 2018, had been minor and did not change Dr Hall's opinion as to the accused demonstrating all of the abilities required under the criteria of s 9 of the Act.
After viewing the DVD of the interview on the 18 June 2019, Dr Hall still considered the accused was not mentally fit to stand trial and would remain so for the next six months.[11] He was also of the opinion the accused would not be able to make an informed decision about his election to give evidence or not.[12]
[11] ts 124, ts 141.
[12] ts 129.
Dr Hall was of the opinion that the accused's demeanour in the interview was consistent with what he saw when he interviewed him for each of his reports. As to the accused's suggestibility, Dr Hall said that when he interviewed the accused if he asked the same question in two different ways, he would get a different answer depending on how he asked the question.[13] Dr Hall considered there were examples of the accused's potential to be subject to suggestibility in the interview. The accused's impaired mental capacity could therefore result in the accused giving an untruthful account as 'a good out or the easy option'.[14]
[13] ts 137.
[14] ts 132, ts 139.
Dr Hall stated that when he interviewed the accused he thought that the interviews with Dr Hall were the judicial determination as to whether he was guilty or not. When he examined the accused's understanding as to what follows a plea of not guilty, his understanding fell apart completely. He did not understand the consequence of saying not guilty. He did not understand he had not been convicted.
Dr Hall in his evidence on 19 June 2019 stated that having watched the DVD of the interview his opinion as to the accused's mental fitness to stand trial had not changed from his two previous reports.[15]
[15] ts 141.

When Dr Wynn Owen provided his report of 24 April 2018 he was not required to make an assessment as to whether the accused was mentally fit to proceed to trial pursuant to the criteria set out in s 9 of the Act.[16] As I have previously referred to in [22(d)], his report was in the format generally provided as a psychiatric report for sentencing purposes.
[16] ts 144.
Dr Wynn Owen's psychiatric diagnosis of the accused was a personality disorder due to another medical condition (ie head injury leading to frontal lobe syndrome), psychiatric disorder due to head injury and polysubstance abuse. Dr Wynn Owen in his report said that the psychological testing on the accused indicated his intellectual function is in the range of the lowest 2% of the population.
At the hearing before me on 18 June 2019 Dr Wynn Owen confirmed that he had read the report of Dr Hall dated 21 May 2018 and he agreed with the opinions contained in it, in particular in relation to Dr Hall's opinion that the accused was not mentally fit to stand trial.[17] He did not disagree with anything Dr Hall said in his evidence in court. Dr Wynn Owen also stated in his evidence that after watching the DVD of the interview and considering the transcript of that interview his opinion did not change that the accused was not mentally fit to stand trial.[18]
[17] ts 145, ts 148.
[18] ts 148, ts 150.
Dr Wynn Owen was of the view that the accused did not have the ability to defend the charges. After viewing the DVD of the interview he was concerned as to the accused's suggestibility, and inability to place himself at the scene at the relevant time consistently.[19] He also considered the accused does not problem solve well and is unable to think of the consequences of the comments he makes. These issues would impact on the accused's ability to make an adequate defence to the charges.
[19] ts 145.
Dr Wynn Owen stated the accused would struggle with the overall concepts of the trial. His cognitive deficits would cause him difficulty in following the course of the trial. The accused would have difficulty understanding the effect of the evidence and then to respond or not respond appropriately in his best interest rather than in an impulsive way.[20]
[20] ts 150, ts 151.

Conclusion

In coming to my conclusion on this matter I am conscious that the issue to be determined by me as to whether the accused is not mentally fit to stand trial is a legal decision. This is the ultimate issue for the court to determine, not the witnesses. A common sense approach is required to be taken by the court, but proper weight should be given to the expert evidence of health professionals.
I have been assisted by the opinions of the two forensic psychiatrists who have provided reports to the court, viewed the DVD of the interview and evidence given in these proceedings. I have also taken into account all the evidence both parties rely upon.
The State relies substantially on the performance of the accused and the interpretation of that performance in his interview as indicating the accused is mentally fit to stand trial. The State also relies on other matters I have previously referred to in [29].
There is no dispute between the two forensic psychiatrists, Dr Hall and Dr Wynn Owen as to whether the accused is mentally fit to stand trial. They are both of the opinion that the accused is not mentally fit to stand trial as the accused meets some of the criteria in s 9 of the Act. Dr Hall's opinion that the accused is not mentally fit to stand trial was consistent in May 2018, March 2019 and June 2019. In June 2019 Dr Wynn Owen agreed with Dr Hall's opinion as to this issue. Dr Wynn Owen had previously advised the Director of Public Prosecutions that he agreed with Dr Hall's opinion on the issue.[21] Both psychiatrists' opinions did not change having viewed and considered the DVD of the interview. I give significant weight to those two expert opinions when considering the accused's presentation and performance in the interview.
[21] ts 116, ts 145.
If the accused meets only one of the criteria in s 9 of the Act he is not mentally fit to stand trial.
I am satisfied on the evidence that the accused meets the criteria in s 9(b), and s 9(g) of the Act.
On the evidence of both psychiatrists I am satisfied that although the accused may understand the requirement to plead to the charges, I consider his mental impairment deprives him of the ability to understand the effects of his pleas.
In my view on the evidence, the accused's mental impairment means he will be unable to make a proper decision as to whether he should give evidence at his trial and if he did give evidence would be suggestible under cross‑examination. I am therefore satisfied the accused is unable to properly defend the charges.
I am satisfied the benefit of counsel's assistance at a trial will not be able to overcome these impairments. The accused's election to give evidence at this trial is not a forensic decision for his counsel to make.
The accused's case is one where there are only two potential eye witnesses, the child and the accused. The election to be made by the accused as to whether he gives evidence or not and his performance as a witness if he gives evidence are likely to have a significant impact on the outcome of his case.
I am persuaded on the balance of probabilities that the accused is not mentally fit to stand trial and will not become mentally fit to stand trial within the next six months.
I will hear further from the parties before I make orders pursuant to s 19(4) of the Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
1 AUGUST 2019