The State of Western Australia v KC (a pseudonym)
[2019] WADC 179
•16 JANUARY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- KC (a pseudonym) [2019] WADC 179
CORAM: SLEIGHT CJDC
HEARD: 12 DECEMBER 2019
DELIVERED : 16 JANUARY 2020
FILE NO/S: IND 71 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
KC (a pseudonym)
Catchwords:
Criminal procedure - Fitness to stand trial - Turns on its facts
Legislation:
Criminal Code (WA)
Criminal Law (Mentally Impaired) Accused Act 1996 (WA)
Result:
Declaration that accused unfit to stand trial and will not be mentally fit to stand trial within six months
Charges dismissed
Committal quashed
Order releasing the accused
Representation:
Counsel:
| Prosecutor | : | Ms S L Keogh |
| Accused | : | [Suppressed] |
Solicitors:
| Prosecutor | : | State Director of Public Prosecutions |
| Accused | : | [Suppressed] |
Case(s) referred to in decision(s):
Hogan v Hinch [2011] HCA 4
The State of Western Australia v S U [No 2] [2017] WADC 20
The State of Western Australia v Sanders [2012] WASC 409
SLEIGHT CJDC:
This is a decision under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act) on the issue of whether the accused is fit to stand trial. There are four issues:
(1)Does the accused suffer from a mental impairment?
(2)If so, is the accused mentally unfit to stand trial as a result of his mental impairment?
(3)If so, will this unfitness to stand trial change in the next six months?
(4)If the court is satisfied the accused is unfit to stand trial, whether, in addition to dismissing the charge and quashing the committal, the court should make an order releasing accused or make a custody order.
Background
Before dealing with each of these issues it is important to understand the nature of the charge and the nature of the allegations against the accused.
The accused is charged with two counts of indecently dealing with a child under the age of 13 years.
The first charge [suppressed] involves an alleged offence sometime between Sunday 28 October 2018 and Monday 29 October 2018 at the accused's then residential premises [suppressed]. At the time the accused was aged 87 and the complainant was 8 years of age. The State's case is that the accused was outside the front of his property near a grass verge area. It is alleged that the accused asked the complainant, who lived within the same unit complex, if he wanted some lollies and the complainant approached the accused. It is alleged the accused placed his hand on the backside of the complainant, pushed his hand underneath the complainant's clothing and touched his buttocks on the skin. It is alleged the accused moved his hand from the side of the buttocks towards the middle, while touching the skin. It is further alleged that the complainant asked the accused to stop and the accused complied. The complainant then walked away and complained to his grandmother who reported the matter to the police sometime after.
The second charge [suppressed] involves an alleged offence on 23 November 2018. The complainant in this matter was 3 years of age. The State's case is that the accused was at the front of his unit and the young complainant was standing nearby. The accused bent downwards and placed his hand under the clothing of the complainant's front area, near his genitals. It is further alleged that the accused placed his other hand under the clothing of the complainant's backside, around his buttocks area. The complainant's cousin, who observed what was happening, shouted at the accused. It is alleged the accused pushed the complainant away from himself. The complainant's cousin took the complainant inside the house and told their grandmother what happened. The grandmother notified the police immediately.
The accused has pleaded not guilty to both charges. He first appeared in court on 24 November 2018 and was remanded in custody. He has been remanded in custody since. On 24 June 2019 the accused was committed to the District Court. On 7 February 2019 the Magistrates Court ordered a psychiatric report as to the accused's fitness to plead. As a result of this order a report of Dr Bala dated 19 February 2019 was produced which concluded that KC suffered from an undiagnosed major neurocognitive disorder and was unfit to stand trial and further, that the unfitness was likely to be permanent and irreversible. I will refer to this report in greater detail later in this decision.
Dr Bala recommended that the accused would benefit from a thorough evaluation by a geriatrician and neuroimaging to determine if there are any organic issues with his brain. Dr Bala said KC also would benefit from neuropsychological testing to fully assess his cognitive functioning.
Unfortunately, a copy of Dr Bala's report was not forwarded to the District Court until recently. Prior to the report being made available, by the consent of the parties, an order was made by Judge Gething on 19 September 2019 for a neuropsychological report as to the accused's fitness to stand trial.
A report was obtained from Dr Marie McCann dated 1 November 2019 which, although somewhat equivocal, concluded that the accused was not fit to stand trial but reached no conclusion as to whether the accused suffered a mental impairment. Again, I will refer to this report in greater detail later in this decision.
On 2 December 2019 an application was made by the State that the proceedings be further adjourned and that the court make an order for a further medical examination of the accused to provide a more definitive conclusion concerning whether the accused suffered from a mental impairment. Under s 12 of the Act the question whether an accused person is not mentally fit to stand trial is to be decided by the presiding judicial officer 'in any way the judicial officer thinks fit'. Given the nature of the charges, the accused's age, the time the accused has spent in custody and the reports currently available, I refused the State's application and listed the hearing of the issues under the Act on an expedited basis.
At the time of the listing of the hearing on an expedited basis I expressed my concern that the accused, apparently because a residential address was unavailable, should be held in custody for such a significantly long period given his age and the nature of the charges against him. I will return to this issue later in this decision.
Relevant provisions
Sections 8 and 9 of the Act provide as follows:
8.Terms used
In this Part, unless the contrary intention appears -
mental illness means an 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;
mental impairment means intellectual disability, mental illness, brain damage or senility;
trial means all court proceedings for an offence other than -
(a)proceedings in relation to bail; and
(b)sentencing proceedings.
9.Mental unfitness to stand trial, definition
An accused is not mentally fit to stand trial for an offence if 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.
Section 12 of the Act provides that the question of whether an accused is fit to stand trial is to be decided on the balance of probabilities.
Mental impairment
Dr Bala in his report stated that he conducted basic cognitive testing which he concluded strongly suggested an impaired intellectual functioning. The assessment made by Dr Bala was made following a video link interview for 45 minutes on 15 February 2019. In addition, Dr Bala had access to medical information released by Casuarina Prison (35 pages) and a statement of material facts provided by the Western Australian Police.
Dr Bala made the following observations concerning the accused KC:[1]
[KC] presented as a thin man who was in a wheelchair, mildly dishevelled, frosty in terms of rapport, but superficially cooperative. He had a gruff manner, but attempted to answer questions, which he did in a vague and nondescript manner. He repeatedly stated that he did not know the answers to questions and attempted to guess answers. He appeared to have some hearing difficulty and volume of the videoconferencing machine needed to be turned up to maximum volume - he wore no hearing aids.
[KC] was alert, but not fully oriented. When asked for the date, he thought that it might be the 22 February 2018 (it was 15 February 2019). He correctly stated that the season was summer and when I asked for the day of the week, he stated, 'I'll go for Wednesday' (It was a Friday). When I asked what place he was in, he stated, 'hospital, I think' and did not know the name of the hospital. Later in the interview, he stated that he had been in prison for two months. When I pointed out that he had earlier told me he was in a hospital, he was bewildered and unable to reconcile the difference. He knew the town, state and the country that he was in. [KC] was able to correctly register three simple objects but was only able to recall 2 out of 3 objects five minutes later. He had a very poor ability to sustain attention - when asked to undertake serial 7's (to take 7 away from 100 and keep subtracting 7 from the remainder), he guessed '93 … 64 … 58 … 42 …that's as far as I can go.' As an alternative, I asked him to spell the word 'WORLD' backwards, he stated, 'D … D … D … I get confused' and abandoned his attempt. He had difficulty following a three-stage command and kept making perseverative errors. When asked to name as many animals as he could that lived in a zoo, he had great difficulty answering, 'cat, dog, ferret, rabbit, horse … can't think anymore.' I asked him whether he had heard of the proverb 'a stitch in time saves nine,' which he had, and when he was asked to describe what it meant, he failed in the abstraction task, merely repeating the proverb and stating, 'it saves time … a stitch.'
In terms of mood, [KC] was not depressed or anxious, but was apathetic with a restricted affect (limited range of emotional expression). He gave concrete and simplistic replies. There was no thought disorder, delusional beliefs and he denied ideas of harm to himself or others. He had limited insight into his situation and his judgment appeared to be chronically impaired. He seemed to be bewildered and easily overwhelmed and tended to reply to many questions with, 'I don't know.'
[1] Report of Dr Bala dated 19 February 2019, par 15, par 16 and par 17.
Dr Bala concluded as follows:[2]
[KC] does not seem to suffer from a mental illness. However, he does seem to suffer from a mental impairment, which means intellectual disability, mental illness, brain damage or senility. Provisionally, I have diagnosed [KC] with a major neurocognitive disorder, the cause of which is unknown.
[2] Report of Dr Bala dated 19 February 2019, par 18(a).
Dr Bala went on to state that the cause of the neurocognitive disorder may be in the nature of a dementia disorder from alcohol abuse or head injuries. He recommended a thorough evaluation by a geriatrician and neuroimaging to determine if there are any organic issues with his brain.[3]
[3] Report of Dr Bala dated 19 February 2019, par 18(c) and par 22(a).
KC was also assessed by Dr Marie McCann, a clinical neuropsychologist, on 27 September 2019. Dr McCann interviewed KC for a period of 30 minutes and then conducted observations and a clinical neuropsychological assessment over a period of 2 hours and 20 minutes. Dr McCann also had a copy of Dr Bala's report dated 19 February 2019 and a copy of the statement of material facts.
In a report dated 1 November 2019 Dr McCann made the following observations concerning KC:[4]
[KC] was accompanied to the assessment pushed in a wheelchair by a fellow inmate. He was able to arise from the wheelchair and shuffle the short distance to the testing table unaided. He presented as mildly unkempt with stains on his shirt and dirty fingernails. There were no significant concerns with [KC]'s language skills and his conversation content was appropriate and logical. His attention and concentration across the assessment were also felt to be satisfactory.
Across assessment, only a surface level of rapport was able to be established. Similar to his presentation noted in Dr Bala's report (19/02/2019), [KC] appeared somewhat superficial in his cooperation in that he was vague when responding to questions during interview and required significant prompting. This behaviour was also observed during testing. While [KC] engaged in some humourous exchanges during the appointment, when prompted or when presented with tasks of increased complexity [KC] would shut down and say 'no' or 'can't think' and not continue with the task. Further, at the end of the session when asked questions to assess his understanding of the Court process, [KC] was observed to become quite reticent and disengaged from the examiner and the assessment process. It was my impression that [KC] had low tolerance for frustration/difficulty and a tendency to give up.
To what extent [KC]'s disengagement with the testing process reflected poor insight into the severity of the situation as a result of genuine cognitive limitations versus conscious suboptimal performance is difficult to comment upon, particularly given his advanced age. There is some controversy around the utility of performance validity tests (PVT) in [KC]'s age group with most PVT having data normed on people younger than 88 years. As such, questions around the consistency of [KC]'s engagement make it difficult to quantify some of his weaker results and these have been interpreted with caution.
[4] Report of Dr McCann dated 1 November 2019, par 13 - par 15.
Dr McCann conducted subjective and formal assessment testing. I will focus on the results of the formal testing and highlight some of the more significant disabilities.
KC's premorbid intellectual functioning was estimated to fall in the low average range.[5] His performance on a measure of basic visual attention was extremely slow and tested below expectation and in the extremely low range.[6] Relevant to the fitness to stand trial was an assessment that KC's performance on measures of verbal working memory (the ability to temporarily store and manipulate information) tested in the low average range.[7]
[5] Report of Dr McCann dated 1 November 2019, par 16.
[6] Report of Dr McCann dated 1 November 2019, par 17.
[7] Report of Dr McCann dated 1 November 2019, par 18.
KC's processing speed tested in the extremely low average range.[8] He did not appear to Dr McCann to have any delay in his ability to process information and respond during conversation, but on formal testing tested in the low average range.
[8] Report of Dr McCann dated 1 November 2019, par 19.
KC's verbal and language abilities were in the low average range.[9]
[9] Report of Dr McCann dated 1 November 2019, par 20.
KC's learning and memory were classified as low to borderline to low average. In relation to this category it is worth noting Dr McCann's full comments in relation to verbal learning and memory:[10]
[KC]'s performance on measures of verbal learning and memory was evident of mildly inefficient encoding and rapid decay. His performance across the learning conditions on a list learning task and story learning task placed in the borderline and low average ranges respectively with [KC] failing to encode any of the second story verbally presented to him on the latter task. His later recall on both verbal tasks was extremely poor (extremely low to borderline) though it is noted he was very difficult to prompt on the two verbal memory tasks and quick to shut down. Recognition, however, was soundly average and intact.
Taken together, and despite his clear low frustration tolerance and refusal to persist at times in the face of challenge, his results do suggest mildly inefficient encoding of verbal material and deficient retrieval, and rapid and excessive forgetting of verbal information. This is beyond age-based expectation, but again was possibly also overshadowed by his rapid disengagement.
[10] Report of Dr McCann dated 1 November 2019, par 23 and par 24.
The testing indicated KC's executive functioning was low average to average. Dr McCann commented that collectively the testing indicated there was reduced cognitive flexibility and response inhibition, perseveration, reduced insight and poor perceptional organisation, while KC's abstract reasoning and verbal generativity were felt to be preserved.[11]
[11] Report of Dr McCann dated 1 November 2019, par 27.
Dr McCann concluded that although KC may meet diagnostic criteria for mild neurocognitive disorder it is not possible to fully confirm or exclude this given his variable engagement on the assessment process. Dr McCann acknowledged that the disengagement was possibly underpinned by genuine impairment although non neurological factors may also be at play. Dr McCann highlighted the fact that there was no evidence of KC's cognitive limitations impacting on his ability to independently carry out everyday activities.[12]
[12] Report of Dr McCann dated 1 November 2019, par 49.
Specifically in relation to the issue of whether KC could be considered to have a mental impairment, Dr McCann believed the following factors needed to be taken into account:[13]
There are significant medical risks factors for cognitive impairment in [KC] (i.e., history of heavy alcohol consumption, history of smoking, peripheral vascular disease, hypercholesterolaemia, hypertension). One would expect there to be some cognitive impairments (beyond age‑related difficulties) associated with the above medical factors and the obtained pattern of results is consistent with that.
It is unclear if [KC]'s limited engagement reflects conscious suboptimal performance or low tolerance/frustration and avoidance as a result of genuine underlying cognitive impairments. There is limited information within the literature to better inform our diagnostic formulation around this issue.
In this instance, neurological workup for dementia including neuroimaging, blood tests and a neurological examination, is strongly advised. This could help to clarify and provide certainty of the presence of a bona fide neurocognitive disorder with a clear neurological basis. If the presence of a Major (or minor) Neurocognitive Disorder is confirmed then [KC] is likely to fulfil the definition of mental impairment as per S8 of the Criminal Law, Mentally Impaired Accused Act 1996 and is not fit to stand trial.
Given the ambiguity around the nature and extent of his current cognitive limitations, monitoring over time is also advised. Diagnosis may become more apparent with the passage of time.
[13] Report of Dr McCann dated 1 November 2019, par 50(a), par 50(b), par 50(c) and par 51.
In addition to the reports of Dr Bala and Dr McCann I have also had the advantage of viewing a video recording of an interview conducted by the police with KC on 23 November 2018. It does not appear that either Dr Bala or Dr McCann viewed this video. This is regrettable. It ought to be standard practice that when assessments are ordered of a person's fitness to stand trial that the medical expert is provided with a copy of the video recorded interview with the accused as this may provide important insights into the accused's capacity, as I find is the case in this matter.
KC presents at the time of his interview with the police on 23 November 2018 as an irascible elderly man. When confronted with the allegations he repeatedly used words such as 'I don't know a bloody thing about it'.[14]
[14] Transcript of video record of police interview of KC dated 23 November 2018, page 8.
When the standard caution was first put to him KC was asked if he could explain it back to the interviewing officer but failed to do so saying simply 'Yeah, I understand. … It's common sense, isn't it?'. This led to the interviewing officer breaking up the caution into separate parts such as 'do you have to answer any of my questions?' To which the accused replied 'No'.[15]
[15] Transcript of video record of police interview of KC dated 23 November 2018, page 5.
KC told the police officers that he had trouble remembering things. He described his memory as 'not real good'.[16] He also said 'I forget quite a few things now. … A bit old in the bloody tooth'.[17] When KC was asked how long he had been living in the complex where he resided he responded: 'I don't know. Got no idea. I lose track of time.'[18] When asked to make a rough guess he replied: 'Five, six years. I don't know'. KC had difficulty remembering the surname of a former carer.[19] When asked who comes and visits him he replied: 'Oh God, here we go. Oh, I can't remember their bloody names'.[20] He later recalled the name of one of the visitors but could not recall his surname.[21] He recalled children taking mail from his mailbox but he was unable to say when this occurred.[22] According to the police officer conducting the interview KC was arrested at 3.40 pm.[23] When KC was asked whether he remembered what he had been doing that day he replied: 'No. I wouldn't have a bloody clue'.[24]
[16] Transcript of video record of police interview of KC dated 23 November 2018, page 22.
[17] Transcript of video record of police interview of KC dated 23 November 2018, page 21.
[18] Transcript of video record of police interview of KC dated 23 November 2018, page 9.
[19] Transcript of video record of police interview of KC dated 23 November 2018, page 9.
[20] Transcript of video record of police interview of KC dated 23 November 2018, page 10.
[21] Transcript of video record of police interview of KC dated 23 November 2018, page 18.
[22] Transcript of video record of police interview of KC dated 23 November 2018, page 13.
[23] Transcript of video record of police interview of KC dated 23 November 2018, page 26.
[24] Transcript of video record of police interview of KC dated 23 November 2018, page 26.
When questioned about the allegations made that he indecently dealt with two young boys KC did not deny the allegations but stated he had no memory of the incidents. He stated: 'Well, it may have happened, but I said as I say, I can't remember'.[25] With persistent questioning by the interviewing police officers, he repeated several times throughout the interview that the alleged incidents may have occurred but he had no memory of them.
[25] Transcript of video record of police interview of KC dated 23 November 2018, page 20.
KC was also questioned about his living arrangements. Although his unit is unit six he described the complex of units as consisting of three units only.[26] He lives independently.[27] He takes medication daily prescribed by his doctor.[28] To get to the shopping centre he drives a gopher.[29] He described withdrawing cash from an ATM.[30] He pays his bills by taking them to the post office and the post office staff arrange payment.[31]
[26] Transcript of video record of police interview of KC dated 23 November 2018, page 81.
[27] Transcript of video record of police interview of KC dated 23 November 2018, page 10.
[28] Transcript of video record of police interview of KC dated 23 November 2018, page 33.
[29] Transcript of video record of police interview of KC dated 23 November 2018, page 13.
[30] Transcript of video record of police interview of KC dated 23 November 2018, page 32.
[31] Transcript of video record of police interview of KC dated 23 November 2018, page 33.
Conclusion on mental impairment
I am satisfied on the balance of probabilities that KC suffers from a mental impairment based upon the following factors:
(a)KC has significant risk factors for cognitive impairment, namely his age, history of heavy alcohol use and other listed health factors mentioned in reports referred to earlier.
(b)I formed the opinion from watching the video recording of the police interview of KC that the accused has a genuine significant memory impairment which is consistent with the risk factors listed above. I noted that he even had difficulty remembering what he had done earlier that day. I was particularly influenced in my conclusion that KC was genuine in his expressions of memory problems by the fact that he did not simply deny the allegations but conceded that they may have occurred but he could not recall any of the incidents.
(c)Dr Bala concluded that KC suffered from an undiagnosed major neurocognitive disorder. Although he was not able to identify the cause of this disorder without further testing he did appear to be reasonably confident that KC did suffer from a mental illness.
(d)The testing results of Dr McCann, detailed above, are in my opinion more consistent with the likelihood of a mental impairment than nonengagement, particularly in light of the risks factors of mental impairment that I have referred to above.
(e)The ultimate conclusions of Dr Bala and Dr McCann that the accused was not fit to stand trial are consistent with a mental impairment.
Is the accused mentally unfit to stand trial as a result of his mental impairment?
As mentioned earlier, Dr Bala in his report concluded the accused was not fit to stand trial. Dr Bala concluded that the accused was capable of understanding the nature of the charge against him, was capable of understanding the requirement to plead to the charge or the effect of the plea and was able to understand the purpose of the trial. However Dr Bala concluded that KC was not able to satisfy the other criteria under s 9 of the Act in relation to fitness stating as follows:[32]
Unable to understand or exercise the right to challenge jurors: [KC] had difficulty understanding the concept of a jury and differentiating this from a judge, but superficially accepted my explanation and was able to repeat this back to me. He would need considerable assistance from his counsel in challenging jurors. In my opinion, this criterion is not met, although [KC] may not have a trial by jury.
Unable to follow the course of the trial: In my opinion, this criterion is not met. [KC] exhibited significant cognitive difficulties and would only be passively engaged in the trial and unable to follow it.
Unable to understand the substantial effect of evidence presented by the prosecution in the trial: This criterion is not met. [KC] has deficits in working memory and orientation and this, alongside problems with frontal and executive functioning would make it very difficult for him to understand the substantial effect of evidence presented by the prosecution in the trial. He may be passively agreeing to the information without challenging them. Subtleties and inconsistencies would be lost upon him.
Unable to properly defend the charge: In my opinion, [KC] would be unable to properly defend the charge, if he chose to plead not guilty.
[32] Report of Dr Bala dated 19 February 2019, par 19(d), par 19(e), par 19(f) and par 19(g).
Dr McCann in her report concluded the accused was able to understand the nature of the charge, the requirement to plead to the charge or the effect of a plea, the purpose of the trial and the right to challenge; and was able to exercise that challenge. However, consistent with the conclusions of Dr Bala, Dr McCann concluded that the accused did not meet the remaining criteria under s 9 of the Act stating as follows:[33]
[33] Report of Dr McCann dated 1 November 2019, par 38 - par 44.
Unable to follow the course of the trial;
[KC]'s responded 'I don't know' when asked what professions are involved in a Court matter and would not attempt an answer. Following guidance he responded that the people involved included 'lawyers, judge, jury and myself'. He could not name the two types of lawyers involved in the Court trial, though responded 'oh yeah' when provided the two names of the two types of lawyers. He was able to state that the prosecutor 'Tries to prove what I've done and is working for the police' and that the defence lawyer 'He's working for me'. When asked the role of the judge/magistrate, [KC]'s responded 'passes the sentence down'. When provided education around the other roles of the judge/magistrate and asked his understanding [KC] responded 'Passes the sentence, can't remember'.
With respect to his ability to follow the course of proceedings, [KC]'s intact verbal attention, processing speed, abstract reasoning and language skills suggests he has the cognitive capacity to attend to and process small amounts of information in real time. However, given the observed weakness in his scores on measures of cognitive flexibility, response inhibition, and verbal memory, he may experience difficulty processing and maintaining complex verbally-presented information. The current findings do suggest there is a risk that he is likely to rapidly forget information presented throughout the trial (though there is a possibility that his memory results were overshadowed by his rapid disengagement). This could impact his capacity to properly follow proceedings. If he is to appear as a witness, he may further struggle to even maintain questions asked of him long enough for him to formulate a clear response; and also for him to recall what has previously been said. During questioning and cross‑examination of [KC], accommodations could be considered to mitigate the effects of his cognitive limitations. Specifically, consider using shorter, simple sentences, and avoiding multi-part questions and having visual aides to help with his memory. It is recognised that the practicality of updating visual cues to reflect real time Court proceedings during trial is doubtful.
Criterion met.
Unable to understand the substantial effect of evidence presented by the prosecution in the trial;
[KC]'s intact verbal abstract reasoning indicates that he has some ability to comprehend links between concepts while his preserved working memory suggests he will be able to process and think through information as presented. Given the weakness observed in his verbal memory results, he may struggle to retain the information over periods of time though as noted above visual cues could help to address this limitation.
Further, [KC] demonstrated some minor knowledge of what it means when the prosecutor presents some evidence, stating they will present evidence 'against me trying to prove what I did'. He was unsure as to what can be presented as evidence in Court but following education was able to respond 'DNA and verbal (accounts)'. When asked the types of evidence that may be presented in his trial, [KC] shut down and responded 'Don't know. Don't want to talk about it'.
Whilst conceptually, [KC] appeared to have the cognitive capacity to comprehend the nature and effect of evidence in trial, his apparent memory limitations could make it difficult for him to effectively accumulate and process the specific evidence in his own case. If his limited test results on memory tasks were to be considered valid (and not consciously suboptimal), then this criterion is met.
Unable to properly defend the charge;
Based on current standardised objective assessment, despite some observation of cognitive inflexibility, mild disinhibition, and difficulty remembering verbal information, [KC] retains the ability to temporarily hold in mind relevant presented facts, and the ability to reason through these, weigh up their potential impact, and generate a logical argument in defence.
However, his apparent difficulties suggest he may have difficulty remembering all of the relevant facts presented across the length of a trial which would then likely reduce his ability to produce a coherent argument encompassing the evidence presented for and against him. The noted weaknesses in his cognitive flexibility further suggests he would have difficulty switching his attention back and forth between relevant material during real time in order to weigh up all of the arguments presented and fully consider his options. Thus if his weaker results are considered valid, then this criterion is met.
Based upon the opinions above and also my earlier conclusions about KC's mental impairment, I am satisfied on the balance of probabilities that he is not fit to stand trial because due to his severe memory problems arising from his mental impairment he is unlikely to be able to follow the course of the trial, understand the substantial effect of evidence presented by the prosecution in the trial, and be unable to properly defend the charge given his memory loss of both the incident and also his inability to adequately follow the evidence.
Will KC's unfitness to stand trial change in the next six months?
Dr Bala in his report stated as follows:[34]
In my opinion, [KC] is permanently unfit, given his advanced age and his significant medical and substance use background, which predisposes him to major neurocognitive disorder. There is no treatment that would reverse this mental impairment as it does not arise from a treatable mental illness.
[34] Report of Dr Bala dated 19 February 2019, par 21.
Later in his report Dr Bala said:[35]
Treatment
[KC] would benefit from thorough evaluation by geriatrician and neuroimaging to determine if there are any organic issues with his brain. Any reversible causes could be treated. If such a cause was found, his fitness might improve in three to six months, but I am not optimistic that this will occur. [KC] would also benefit from neuropsychological testing to fully assess his cognitive functioning, which I only assessed in limited fashion by video conference. This would help with treatment planning.
[35] Report of Dr Bala dated 19 February 2019, par 22(a).
Dr McCann in her report was not able to comment as to the permanency of KC's unfitness given her views about the question of whether KC suffered a mental impairment.
Although Dr Bala expressed the view that there was some potential for improvement in KC's mental fitness this potential only existed if neuroimaging determines that there are reversible organic issues with his brain. However, Dr Bala remained pessimistic as to such an improvement occurring.
In my opinion, based upon the evidence before me, I conclude that on the balance of probabilities that KC's mental impairment is primarily due to his age, is unlikely to be responsive to treatment and therefore there is unlikely to be any improvement consistent with Dr Bala's opinion.
Orders of dismissal of action
Given my conclusion is that the accused suffers a mental impairment which makes him unfit to stand trial and having concluded that he will not become mentally fit to stand trial within six months after my finding, I am required to make an order under s 19(4) which provides that where there is no indictment (which is the case in this matter) I must dismiss the charges and quash the committal without deciding the guilt or otherwise of the accused. Accordingly, I make such orders.
Should the court make an order releasing the accused or make a custody order?
The next issue to consider is whether a release order or a custody order should be made. Section 19(5) of the Act sets out the criteria that must be satisfied before a custody order can be made:
(5)A custody order must not be made in respect of an accused unless the statutory penalty for the alleged offence is or includes imprisonment and the judge is satisfied that a custody order is appropriate having regard to -
(a)the strength of the evidence against the accused;
(b)the nature of the alleged offence and the alleged circumstances of its commission;
(c)the accused's character, antecedents, age, health and mental condition; and
(d)the public interest.
Both charges against the accused are under s 320 (4) of the Criminal Code and the statutory penalty for these offences includes a term of imprisonment. It is therefore necessary to consider each of the criteria set out in subsection 19(5) of the Act.
Strength of the evidence against the accused
The State's case on each matter will primarily depend upon the credibility of children. In relation to [suppressed] the sole witness of what occurred will be an 8-year-old child. His credibility will be supported by the fact that he made a recent complaint to his grandmother. In relation to the second charge, [suppressed] it is difficult to know what the capacity of the 3-year-old complainant will be to give evidence. However, the incident was observed by a cousin aged 16. In his statement which appears at pages 5 to 9 of the Prosecution Brief he states that he had an uninterrupted view of the accused and observed him 'with both hands down [the complainant's] shorts.' Based upon the evidence contained in the Prosecution Brief relating to both matters I am satisfied that the State's case is moderately strong.
The nature of the alleged offence and the alleged circumstances of its commission
I have described the nature of the alleged offences and the circumstances. Both alleged offences involve indecent acts at the lower end of the scale of seriousness but all the same are of concern because of the apparent spontaneity of the offending and the vulnerability of the alleged victims.
The accused's character, antecedents, age, health and mental condition
I have earlier detailed the accused's age, his living circumstances as described to the police and his background health issues as described in the reports of Dr Bala and Dr McCann. The accused also has a record of prior convictions which is not extensive but it includes a conviction on 21 June 1994 of wilful exposure for which he was fined $250. I have no details of the circumstances of the commission of this offence.
The public interest
The concept of 'the public interest' is necessarily a wide concept. It involves a consideration of several factors: The State of Western Australia v Sanders.[36] In the matter of Hogan v Hinch[37] French CJ stated that where a statute makes reference to a public interest component to a decision of a court, then the court must assess public interest by reference to any statutory scheme, the purpose of the Act as a whole and the purposes of any orders made under the Act.
[36] The State of Western Australia v Sanders [2012] WASC 409.
[37] Hogan v Hinch [2011] HCA 4 [32].
A major consideration that the court should have regard to in deciding whether it is in the public interest to make a custody order is the risk of the accused offending in the future if released and the danger that risk poses to the community.[38] I observed the accused on the hearing of this matter and he appeared before me as an elderly, frail man. There is reference in the report of Dr Bala of the accused using a wheelchair.[39] At the time of the alleged offending, the accused was living independently but I conclude that this is now unlikely and he will require care and supervision. Given these circumstances, I believe the risk to the community, and in particular to young children, is low.
[38] The State of Western Australia v S U [No 2] [2017] WADC 20 [52].
[39] Report of Dr Bala dated 19 February 2019, par [15].
The degree of risk of re-offending is not the only consideration. It is also in the public interest that people with mental impairments are provided with the best possible treatment and care; and with the least restriction of their freedom and the least interference with their rights and dignity.[40] As mentioned earlier in this decision, the accused has been held in custody since 24 November 2018. The reason being that he was unable to obtain bail as he was apparently evicted from his accommodation and could not find alternative accommodation. Despite repeated efforts by the accused's solicitors to organise accommodation for the accused, it still remains uncertain as to where the accused will reside if he is released. However, in my opinion, the lack of accommodation and care arrangements for the accused should not stand in the way of the accused being released. A custody order should not be used to confine a mentally impaired person in a prison as a means of providing palliative care. It must be assumed that, if a release order is made, government agencies and welfare organisations, particularly those working in the area of prisoner release, will take appropriate steps to provide support to the accused.
[40] See for example s 10 of the Mental Health Act 2014 (WA) which sets out the objects of the legislation in caring for mentally ill persons.
Taking all the above factors into account I conclude that it would be unjust to make a custody order and that an order should be made releasing the accused.
Addendum to Decision:
On 16 January 2020, the court was informed that short term crisis accommodation had been found for KC and arrangements were in place for KC to be placed in the short term crisis accommodation on his release. Also an ACAT assessment had been organised whilst KC had been in custody and he was assessed as requiring high dependency permanent care. Procedures were being undertaken to ultimately have KC placed in an aged care facility.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CG
Associate to Chief Judge Sleight11 MARCH 2020
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